Citation
Lizzie Borden took an ax and gave her lawyer forty whacks

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Title:
Lizzie Borden took an ax and gave her lawyer forty whacks a generic analysis of the closing argument for the defense in The Commonwealth of Massachusetts V. Lizzie Borden
Creator:
Herde, Gayle W
Publication Date:
Language:
English
Physical Description:
viii, 70 leaves : ; 29 cm

Subjects

Subjects / Keywords:
Borden, Lizzie -- Trials, litigation, etc ( lcsh )
Summation (Law) ( lcsh )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 66-70).
General Note:
Department of Theatre, Film, and Video Production
Statement of Responsibility:
by Gayle W. Herde.

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Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
40273864 ( OCLC )
ocm40273864
Classification:
LD1190.L48 1998m .H47 ( lcc )

Full Text
LIZZIE BORDEN TOOK AN AX AND GAVE HER LAWYER FORTY
WHACKS: A GENERIC ANALYSIS OF THE CLOSING ARGUMENT FOR
THE DEFENSE IN THE COMMONWEALTH OF MASSACHUSETTS V.
LIZZIE BORDEN
. ^
Gayle W. Herde
B.A., Wichita State University, 1979
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Communication and Theatre
1998


This thesis for the Master of Arts
degree by-
Gayle Wheatcroft Herde
has been approved
by
W. Michael Monsour
r/ &/? f
Date


Herde, Gayle Wheatcroft (M.A. Communication and Theatre)
Lizzie Borden Took an Ax and Gave Her Lawyer Forty
Whacks: A Generic Analysis of the Closing Argument for
the Defense in The Commonwealth of Massachusetts v.
Lizzie Borden
Thesis directed by Associate Professor Samuel A. Betty
ABSTRACT
The study of jury trials teaches us about ourselves.
Trials are a reflection of the culture in which they take
place, mirroring the attitudes, beliefs and values of the
period.
Rhetorical analysis of portions of a trial helps
promote better communication. The generic method of
criticism is perhaps the most natural method of analysis,
as it satisfies the mind's requirement for a frame of
reference. Generic criticism classifies traditions,
affinities and relationships that might go unnoticed
otherwise. Generic application examines the situational,
stylistic and substantive elements of a rhetorical
artifact and creates an organizing principle that
synthesizes the elements. Then the artifact is measured
against the elements to determine whether it fits the
classification.
The closing argument given by defense counsel George
Robinson in The State of Massachusetts v. Lizzie Borden
exemplified all of the elements of excellent closing
arguments. He considered the attitudes and beliefs of
his audience in crafting his address, especially the
image of the morally-superior woman. He discussed the
evidence and facts, using warrants of motivation and
classification. His language was dramatic, sentimental,
and interesting, filled with metaphors and analogies. He
explained complex components of the law, and used
physical evidence to keep the attention of the jurors.
He used emotional appeals and asked the jury for an
acquittal. The argument, all other factors considered,
iii


played a vital part in the acquittal of Ms. Borden.
This abstract accurately represents the contents of the
candidate's thesis. I recommend its publication.
Signed
Samuel A. BeVty
iv


Dedication
This paper is dedicated to the two most important
persons in my life: to God, the Giver of miracles large
and small. I have found that I truly can do all things
through Christ, who strengthens me. And to Bryan. You
have been my constant support, the one who said, "Yes,
you can," when I cried, "I can't." You are my spiritual
guide and a model of First Corinthians 13. You cooked.
You cleaned. You did it all. You made this worth
accomplishing. Thank you.


Acknowledgments
I wish to gratefully acknowledge the support of my
committee, Samuel Betty, Michael Monsour and especially
Sonja Foss. Thank you for your patience. All of you
went the extra mile to help me meet my goals and I am
indebted to you. I also wish to thank the partnership of
Holland & Hart LLP for their generosity in providing
tuition subsidies, without which my aspirations of higher
education would have remained only a dream. Thank you,
Carol, Jill, Prudy and Susan. You always understood when
I had to tell you, "I can't. I have to study." Finally,
I wish to thank Craig Stewart and Helen Cousineau, whose
support in the beginning is responsible for this final
accomplishment.


Contents
CHAPTER
1. INTRODUCTION .................................... 1
Method ................................... 7
Literature Review ....................... 10
2. GENRE OF CLOSING ARGUMENT ...................... 13
Situational Element ..................... 15
Substantive Element ..................... 17
Evidence and Facts...................22
Testimony............................24
Law..................................24
Explanation..........................25
Narration...........................2 6
Emotional Appeal ................... 26
Request for Verdict..................28
Stylistic Element ....................... 29
Language............................3 0
Delivery.............................32
Presentation of Evidence ........... 32
Organizing Principle .................... 34
3. CLOSING ARGUMENT OF DEFENSE IN LIZZIE BORDEN ... 37
Situational Element ..................... 39
vii


Substantive Element ..................... 40
Theme................................42
Evidence and Facts...................43
Explanation and Narration .......... 44
Stylistic Element ....................... 48
Language.............................48
Metaphors and Analogies ............ 50
Poetry and Literature .............. 51
Drama................................52
Demonstrative Evidence, Delivery ... 52
Organizing Principle .................... 53
4. CRITICAL EVALUATION..............................56
Situational Element ..................... 56
Substantive Element ..................... 57
Stylistic Element ....................... 60
Organizing Principle .................... 60
APPENDIX
A. TRANSCRIPT OF CLOSING ARGUMENT ................... 65
WORKS CITED..........................................66
viii


CHAPTER 1
INTRODUCTION
Lizzie Borden took an ax
And gave her mother forty whacks.
When she saw what she had done,
She gave her father forty-one.
Children's rhyme
That nursery rhyme embodies what most of America has
come to believe about Lizzie Borden of Fall River,
Massachusetts, and the murders of her father and
stepmother on August 4, 1892. Numerous persons assume
Lizzie Borden was fictitious, while others conclude she
must have been found guilty and was probably executed.
The popular legend has strayed far from the facts, as
legends tend to do. Borden's father and stepmother (not
her birth mother) were killed with eighteen and eleven
blows respectively. No one is certain whether Borden
actually committed the crime. In fact, though she stood
trial for three weeks in New Bedford, Massachusetts, she
was ultimately acquitted. No other suspect was ever
arrested, much less tried and convicted.
1


Lizzie Andrew Borden was born and raised with her
older sister, Emma, in Fall River, Massachusetts. Little
is known about her birth mother, who died when Lizzie was
about three years old. Her father, a wealthy textile
miller and banker, married Abby Durfee shortly afterward.
The family fortune was conservatively valued at $500,000
at the time of the murders and furnished the only motive.
At midday on August 4, 1892, Lizzie and the servant,
Bridget Sullivan, were occupied in and around the house
doing various chores. Emma was out of town visiting
friends. It was claimed that Mrs. Borden had been called
out to visit a sick person, though the certainty of that
detail remained unresolved during the trial. Mr. Borden
had left the house to conduct business earlier that
morning, and was let in by Bridget after forgetting his
key. A short time later, Lizzie cried for Bridget to
come to the parlor, where Mr. Borden lay on the sofa.
His head had been "hacked to pieces" by a sharp object
and had received eleven blows. A short time later, the
body of Mrs. Borden was found in a spare bedroom
upstairs, having received eighteen blows to the skull
with the same type of instrument.
One week later, Lizzie was arrested on suspicion of
murder. The prosecution's case was entirely
2


circumstantial, as no direct evidence against her was
ever produced. For example, she was found burning a blue
dress (similar to the dress she wore the day of the
murders) a few days afterward. A handle-less hatchet was
found in the basement covered, not with the usual fine
dust, but with ashes. She was often heard to complain
about her stepmother. Her story of her whereabouts at
the time of the murders was inconsistent. She was thought
by the police to display an inadequate amount of feeling
about the events.
The focus of this paper is on the closing argument
of the trial, specifically that of the defense. The
closing argument is the portion of the trial wherein each
side is allowed to recall for the jury what they said
they would prove, how it was proven, and how those proofs
and appeals have led to the desired conclusion, which, in
the case of the defense, is the acquittal of the accused.
The summation of the Borden defense is long (nearly
100 pages in book form), beginning with an analysis of
the crime and investigation. The jury was reminded of
its obligation; facts in evidence were recalled; points
of corroboration and contradiction were presented.
Finally, a reiteration of the character of the accused
and the obligation of the jury were given. (The text of
3


the closing argument is attached as Appendix A.1) In this
presentation, however, were many appeals to experience,
values, beliefs and attitudes, and other persuasive
devices. These will be examined and a determination made
whether the argument fits within the parameters of the
generic method of criticism.
The purpose of this study is twofold. The first is
to determine whether the closing argument in the case of
Commonwealth of Massachusetts v. Lizzie Borden
constitutes a good or a poor exemplar of the genre of
closing arguments. Secondly, the address will be
examined to and to determine whether the results of the
case, that is, Ms. Borden's acquittal, may fairly be
attributed to the fit between the defense's closing
argument and that genre.
Law and its ramifications pervade the life of every
single person. The significance of the study, from a
practical sense, comes from the necessity of teaching
communication skills to law students, as they are the
1 Reproduced from Volume XIII of Classics of the
Courtroom, the exclusive trial transcript series
published by The Professional Education Group, Inc. (P.E.G.) ,
Minnetonka, Minnesota. Reprint permission granted by The
Professional Education Group. For information concerning
this series or other available continuing legal education
materials and live programming, call P.E.G. at 1/800/229-
CLE1 (2531).
4


future medium of social transformation. Matlon cites
numerous instances of law school graduates throughout the
United States expressing dissatisfaction in their
education, citing primarily a lack of basic skills
preparation (Bridging the Gap 45-46). In quoting David
Hunsaker, Matlon demonstrates the importance of
communication skills, stating that since lawyers must
interact with people, and since:
law . . is a communicative system, chiefly
rhetorical in nature, . . the lawyer
[becomes] an agent of rhetorical change. . . .
Through his skill in using linguistic tools, he
shapes, alters, and restructures social
reality. (Matlon Bridging the Gao 44)
Communication, then, is the foundation for human
interaction in legal situations.
The study of even a portion of a famous trial
teaches us about ourselves:
Famous trials, trials that capture the
imagination of a community, are particularly
useful for observing the nature of legal-
literary-cultural connections and dependencies.
(Ferguson 37)
They are excellent cultural barometers, since everything
that is said is transcribed. The culture is often the
catalyst for the trial themes, as will be shown in this
study.
Communication theory is enhanced by this study, as
it emphasizes the need for the familiar. When faced with
5


the prosecution's view of a woman that contradicted what
was their pre-existing conceptions, the Borden jurors
encountered cognitive dissonance, that is, a conflict
between a claim and their belief systems. The defense,
by creating reasonable doubt through the proposal of an
unknown assailant, gave the jurors the opportunity to
reconcile their feelings. Through the presentation of
the familiar, the jurors were able to acquit Ms. Borden.
Finally, from a rhetorical perspective, through the
generic analysis of closing arguments specifically, and
of discourse generally, we promote better communication.
By using generic criticism to establish norms for
j udgment:
we can more clearly and consistently identify
the ways in which individual rhetors pursue
their goals, and by establishing such norms
within generic groupings, we can develop
tighter theoretical perspectives for testing
the work of these speakers. (Harrell 270)
A generic analysis of closing arguments will assist
attorneys by providing a detailed breakdown of the
elements necessary to craft a convincing argument, while
providing a practical demonstration of the use of the
elements from an argument that has captured the
imagination of many Americans.
6


Method
Generic criticism will be used to analyze the
closing argument, as it may be the most "natural" of the
forms of criticism. As Jamieson said, "[t]he human need
for a frame of reference lures the mind to generic
classification" (a procedure within generic criticism)
(Generic Constraints 167). In quoting Northrop Frye,
Jamieson noted:
[T]he purpose of criticism of genres is not so
much to classify as to clarify . . . traditions
and affinities, thereby bringing out a large
number of relationships that would not be
noticed as long as there were no context
established for them. (168)
Generic criticism examines rhetorical artifacts
through categorization of the "constellation of forms,"
that is, the situational, substantive and stylistic
elements, in an attempt to determine the organizing
principle that blends the elements into an essential
whole. Genre criticism utilizes one of three procedures:
generic description, generic participation and generic
application. In generic description, the critic employs
four steps during the examination of several rhetorical
artifacts to determine whether a generic classification
actually exists. The critic examines artifacts to
determine the existence of similarities; collects
artifacts crafted under similar situations; analyzes the
7


artifacts to determine whether they share certain
characteristics; and, finally, formulates an organizing
principle, that is, a common thread that unites all the
elements (Foss 114-116) .
Generic participation assumes the existence of a
genre and examines an artifact in light of that genre.
The critic performs the analysis in three steps: he/she
examines the situational, stylistic and substantive
elements and the organizing principle of the genre;
examines the same elements of the selected artifact; and
compares the two to determine the appropriateness of
inclusion within the genre (Foss 117).
Generic application, the procedure to be used in
this study, requires the critic to assess the artifact
for "fit" within the genre. Application employs all of
the-steps- in-participation-, adding a final step-of
evaluation of the success of the artifact in fulfilling
the requirements.
Karlyn Kohrs Campbell and Kathleen Hall Jamieson,
who first developed the method, write that a genre "is a
classification based on the fusion and interrelation of
elements in such a way that a unique kind of rhetorical
act is created" (25). Harrell and Linkugel divided genre
criticism into four styles of classification. De facto
8


or common-sense classification takes place when discourse
is divided into obvious groups, such as inaugural
speeches, sermons or campaign advertisements. Structural
classification examines the design and characteristic
patterns of discourse. Motivational classification
analyzes the purpose of the rhetor. Archetypal
classification probes the receptors' psyches for
persuasive images already ingrained (265) The category
and text of closing arguments are compatible with the de
facto style of classification within the method of
generic criticism.
Campbell and Jamieson require more, however, to
create a genre. They look for a "constellation of
substantive, stylistic and situational characteristics"
(17). They explain:
A genre is a group of acts unified by a
constellation of forms that recurs in each of
its members. . . . What is distinctive about
the acts in a genre is the recurrence of the
forms together in constellation. (20)
It will be demonstrated that closing arguments meet those
criteria.
Other methods of criticism would be appropriate for
use with this specific closing argument. As feminists
see "gender" as a psychologically-based concept (as
opposed to "sex," the physical or biological condition),
9


a feminist study would evaluate how rhetoric constructed
gender. Since values help define a culture, a values
study would examine the implied or expressed values in
the argument for the cultural implications. For this
application, however, the genre method was chosen, as it
not only:
helps the critic discover the nature of the
social reality created by and reflected in
genres, but it allows critics to study how
rhetorical acts influence each other and how
rhetoric is shaped by prior rhetoric (Foss
112) .
Literature Review
A search of the literature reflected the curiosity
generated by the Lizzie Borden case in the over 100 years
since the crime. The trial comprises only a small
portion of the writings and even less has been written
about the closing argument specifically. Books and
articles include The Logic of Women on Trial: Case
Studies of Popular American Trials by Janice Schuetz,
1994; A Private Disgrace; Lizzie Borden by Daylight by
Victoria Lincoln; Lizzie by Frank Spiering. These, in
describing the trial, deal primarily with defense counsel
George Robinson's reputation, personal style and cross-
examination of various witnesses.
10


Schuetz, in her book, investigates gender, history
and law, and how they logically interact in the trials of
women. Lincoln's book, written by a woman who grew up in
Fall River during the time of the murders, discusses
Borden's personality and renders a speculative diagnosis
of epilepsy of the frontal lobe.
Spiering proposes the intriguing theory that Emma,
the elder sister, and Lizzie conspired together to murder
the parents (a precursor to the Menendez brothers), with
Lizzie attempting to poison the family with arsenic on
the previous day and Emma actually wielding the murder
weapon. He describes the trial from the defense and
prosecution points of view, but only touches briefly on
the closing argument. In short, nothing of a generic
analysis was found.
The legal profession has always written about
aspects of litigation and representation of clients.
Much has been written about the crafting of closing
arguments. One treatise, particularly useful for this
study, is The Work of the Advocate by Byron and William
Elliott, first published in 1888. Law schools at this
time were in their infancy, with the practice of law
being taught by the apprenticeship method. The Elliott
book would have been, therefore, a valuable resource.
11


Today, in addition to books and articles in law
journals, Trial magazine is published by the American
Trial Lawyers Association, a national group of attorneys
representing plaintiffs in civil suits. Several times a
year, Trial publishes an article dealing with some aspect
of the closing argument. Examples include "Closing
Argument: Consolidating Your Theme," by Bob Gibbins,
January, 1990; "Recipe for Closing Arguments: A Baker's
Dozen Key Ingredients," by Henry Wallace, April, 1995;
and "Effective Closing Arguments in Civil Trials," by
Leonard Ring, October, 1993. Additional useful resources
include Crawford's The Persuasion Edge. Matlon's
Communication in the Legal Process and Stein's treatise,
Closing Argument.
The following chapter will describe the genre of
closing arguments according to their situational,
substantive and stylistic characteristics and the
organizing principle. The third chapter will examine the
characteristics of the defense attorney's closing
argument in the Borden case specifically. The final
chapter will evaluate whether the defense argument
fulfilled the requirements of the genre, and the impact
thereof.
12


CHAPTER 2
GENRE OF CLOSING ARGUMENTS
In order to better understand the situation and
context of closing arguments, a review of the legal
system is in order. The American system of jury trials
is hundreds of years old. It has its roots in the Norman
or French system brought over to England by William the
Conqueror. "... [T]here were several Norman
importations that swiftly became part of the English
tradition. One of the most notable of these was the
sworn inquest of lawful men, the jury" (Smith 95). It
has evolved through the centuries until it reached the
present form that we now recognize and use. In it, two
or more parties retain legal counsel in an adversarial
encounter which employs the method of telling all sides
of a dispute to an impartial fact-finder, fortifying the
stories with evidence, then allowing the fact-finder to
deliberate to a verdict.
Following a (usually lengthy) period of discovery
and motion practice, the attorneys meet in the courtroom.
They (or the judge) interview the jury panel in an
attempt to weed out harmful biases and retain a jury that
13


is ideally without prejudice for or against any of the
parties. The attorneys introduce the subject matter and
anticipated evidence in their opening statements. They
then put on their evidence in the form of witnesses and
physical, documentary or demonstrative evidence. They
summarize in the closing argument what they believe the
evidence positively proved, then wait for the jury, judge
or arbitration panel to deliver a verdict.
The guidelines for generic application, in this
study, will be derived from present-day standards, as
well as those of the Borden period. Harrell and Linkugel
maintain that:
The critic might expect to draw standards from
sources within the genre . . and from sources
external to the genre itself. Instances of the
latter might include the utilization
of . . . principles derived from the field in
which the instance of rhetoric is most 'at
home1 . . . (276)
Therefore, case law, attorneys and legal communication
experts will be consulted for their requirements and
recommendations for formulating a persuasive closing
argument.
Debates abound about the importance of the closing
argument. It has been said the jury enters the courtroom
looking for an ally, and that:
[jlurors don't seem to be able to wait for the
evidence to come in; rather they tend to select
14


from the two opening statements and . . . are
apt to remain loyal all the way through jury
deliberations. (Crawford 104)
This does not, however, negate the importance of the
closing argument. If both sides are roughly equal in
voir dire (juror interviews), in their opening
statements, in skill and preparation, in presentation of
evidence, and if the jury has not consciously or
unconsciously taken sides, then the closing argument is
of paramount importance. Since an attorney can never be
certain how close the case really is, "you must always
prepare and deliver your closing arguments as if
everything rested on this last persuasion effort"
(Crawford 161).
Situational Element
A genre contains certain situational requirements,
conditions that demand rhetorical responses (Foss 111).
The situation, according to Bitzer, is possibly the most
important element of the discourse, as "it is the
situation which calls the discourse into existence"
(Bitzer 2). The discourse obtains its historical
significance, its very character from its circumstances.
Bitzer defines the situation as the "natural context of
persons, events, objects, relations, and an exigence
15


(5) The
which strongly invites utterance. .
situation dictates the observations to be made, the
responses to be given, and constrains the very words.
Arguably, the most important element of the
situation is the cultural element. Knowledge of the
culture establishes a portion of the context, thereby
creating meaning. It assists with understanding the
rhetor's possible intent and gives the necessary
background for comprehending the rhetorical situation
(Golden 331). Cultural myths, cultural preferences, and
cultural values form the missing or subconscious major
premises in the enthymemes (that is, assumptions supplied
by the audience) of a society (Larson 56).
According to Bitzer, then, the situation of a
closing argument encompasses the attorneys, the parties,
the judge and the triers of fact (usually a jury, though
sometimes the judge or an arbitration panel). The event
is the exigence, that is, a dispute to be resolved
through the legal system. It is rhetorical in nature, as
we no longer endorse the system of trial by combat. The
constraints, that is, the beliefs, attitudes, interests,
motives and so on, are dictated by the facts of the
controversy, the parties, and the point in time in which
the rhetorical act takes place. Therefore, although the
16


constraints of the situation are ever-changing, the basic
elements of the closing argument remain the same.
Substantive Element
Substantive strategies deal primarily with content
(Foss 115). The message content, in turn, is dictated by
unwritten rules, such as audience expectations, or by
written rules or prohibitions. With regard to this
study, the message of the closing argument must adhere to
rules of evidence regarding admissibility, argumentation
and procedure, or risk having a favorable decision
overturned or otherwise changed by a higher court of
appeal. At the very least, violation of the expressed
standards may bring about an objection from the other
side. In addition to disrupting the flow of the oratory
and "breaking the spell" cast by the attorney, if the
objection is sustained, the attorney risks a loss of
credibility for attempting improper behavior during this
critical time.
Of the 117 pages devoted by Elliott in 1888 to
closing arguments, a mere four pages set forth the
prohibitions.2 Apart from procedural admonitions,
Elliott stated that:
2 This may be because the law is dynamic and, as such,
17


. . . counsel in argument must confine
themselves to the facts brought out in
evidence; . . . counsel are not permitted to
argue to the jury questions of law already
decided by the court adversely; . . where the
right to argue the law exists, counsel may read
it to them from the books of the law . . . ;
[and] . . . the closing argument should, in
general, be confined to the grounds stated and
authorities cited or points of law stated in
the opening. (395-397)
Case law and prohibitions have evolved considerably
in the last 100 years. Standards for state courts remain
ambiguous, though there are Pertain restrictions upon
which most jurisdictions agree. For example, counsel is
not allowed to express personal opinions about the
parties, the witnesses or the evidence, for this
improperly places the credibility of the attorney into
the proceedings. Stein says, for example:
[I]t is not only improper, but also unethical,
for an attorney to express personal belief in
the defendant's guilt or innocence, [or] as to
the truth or falsity of any testimony or
evidence. (§70, 221)
Counsel is not allowed to inflame the prejudices of
the jury through appeals to sexism, racism, ethnocentrism
or other prejudices; appeal to the pecuniary interests of
jurors; or imply that jurors may suffer in the event of
an adverse verdict. If this were to be allowed, "the
(..continued)
had not yet developed the prohibitions expressed in the
present time.
18


parties to litigation would be deprived of a trial on the
merits of the case, uninfluenced by passion and
prejudice" (Stein §21 64).
Similarly, counsel is not allowed to inject
collateral issues (bids for sympathy or fear) into the
argument. This is especially true in asking the jurors
to put themselves in the place of the client, which is
commonly called "The Golden Rule Argument." This
improperly "invites the jurors to disregard their oaths
and become nonobjective viewers of the evidence" (Matlon
Communication 271) .
The prosecution is not allowed to comment on the
defendant's exercise of the right not to testify, as "the
government should not be allowed to punish citizens for
exercising a constitutional right" (Furman 34). Neither
side is allowed to comment on inadmissible evidence or on
privileged matters. "Closing argument must be confined
to the evidence adduced at trial and the reasonable
inferences that can be drawn from that evidence" (Furman
33) .
Counsel is not allowed to misstate the law or the
evidence. Attorneys move into improper argument on the
evidence when they argue a theory that has no evidentiary
support. This type of argument, together with commenting
19


on inadmissible and privileged matters, is so serious as
to be grounds for a mistrial, reversal, or new trial
(Stein §16, 46) .
Counsel is not allowed to make personal attacks on
other attorneys or their clients. These sorts of
comments "are inflammatory, divert the jury from the
issues at hand and amount to forbidden expressions of
personal opinions" (Furman 35). Examples of improper
attacks on attorneys include accusations of suborning
perjury, fabricating a defense, bad faith, trickery,
insincerity, or not believing in their own case. Counsel
may not vilify the opposing party or imply guilt from
their personal appearance, from their present
incarceration or from their retention of counsel (Stein
§24, 73, §26, 88).
The permissible scope of the closing argument is
quite large, as the primary interest is to allow the
advocate the greatest amount of latitude in obtaining
justice for the client. Even within the previously-
described strictures, the reach and breadth for attorneys
is vast. There are specifications, however, guiding what
may be presented to the fact-finders, since scope and
strictures are developed with what Miller calls a
20


"virtual community,"3 that is, all juries, judges and
arbitration panels, in mind.
Elliott gave few, if any, hard and fast guidelines
j_
in the treatise on the work of the advocate in the 19
century, preferring to allow the reader to deduce the
scope from the writings on substance. Even today,
guidelines "are not easily accessible and are sometimes
less than clear" (Ahlen 105). It is generally agreed,
though, that the substance of closing argument should
encompass the theory of the client's case; review the
evidence; put forth arguments allowing the jury to draw
favorable inferences; discuss the law of the case and how
the evidence satisfies the legal requirements; rebut
opposing counsel's evidence and conclusions; and ask the
jury for a favorable verdict (Ahlen 106).
How this is accomplished is completely up to the
advocate, subject to the previous prohibitions, and forms
the most personal address made by the attorney to the
fact-finder(s). Stein states, in fact, that "[g]enerally
speaking, the limitations on argument are good taste and
the esteem of the legal profession" (§12, 26). Whether
3 Miller stated, "The virtual community is not a living
or real community existing outside the text but a
hypothetical, generalized group projected by, and
constructed within, the genre" (Goodwin 4).
21


the attorney uses flowery oratory, demonstrative and
visual aids, or even sheds tears, all are within the
boundaries of permissible advocacy.
The structure of the closing argument, then, may be
said to contain a recitation of the evidence and
stipulated and disputed facts, encompassed by comments on
witnesses (including their testimony, demeanor,
character, motives, and memory), documentary evidence,
other physical evidence, and an explanation of the law.
It is orally presented through narration and explanation.
It should contain emotional appeals and a request for a
favorable verdict.
Evidence and Facts
In explaining the evidence, according to Rieke and
Sillars, the closing argument should encompass the entire
trial record:
The entire trial record, including the judge's
instructions, should be studied prior to making
the argument. In evaluating conflicting
testimony, the lawyer will try to show that
probability favors his or her
interpretation. . . . There seems to be general
agreement that the closing speech is best when
it sticks to the evidence and does not move off
into appeals not directly supported by
testimony. (238)
Matlon recommends dividing the body of the argument
into separate issues, a summary of the relevant evidence,
22


and a discussion of the relationship of the evidence to
each issue. Stein, however, believes one and only one
determinative issue should be presented to the jury
(§205, 14) .
Elliott begins his section on refutation of opposing
counsel's evidence by applying a simple rule of logic,
that is:
The first care in refuting an explanation
should be to ascertain whether all the facts
assumed as supplying the basis of the
explanation do actually exist. (emphasis
added) (313)
He recommended asking whether the facts were relevant,
and whether the examples used to explain the evidence
were legitimate and complete (315-317). He advised that
great care be taken in attacking the opposing hypothesis,
though, as it may be perceived to be a contest between
equally-probable theories (354).
MatIon advises giving attention to "disarming the
opposition with discussion of the lack of credibility and
the insufficiency of adversary evidence" (Communication
273). Additionally, he advises admitting weaknesses, as
jurors admire and respect candor and honesty. The
unfavorable information, however, should be quickly
mitigated (273). A powerful tool of persuasion,
immunization techniques, including inoculation and
23


forewarning of the opposition's arguments, can facilitate
the jury's resistance to opposing counsel's discussion
(Frederick 34).
Testimony
Elliott was quite detailed in his writings on
dealing with explaining the evidence, especially with
testimony of witnesses. He spelled out how to manage
conflicting testimony (361), the character and
credibility of witnesses (373), corrupt or lying
witnesses (367, 376), the motivation of witnesses (369),
and positive versus negative testimony (383). Stein, in
contrast, dealt simply with witnesses overall (§223, 37),
inconsistent testimony (§222, 36), character (§215, 28),
and witnesses who do not testify (§237, 46).
Law
The authors were in agreement throughout that
attorneys should be careful to explain the relevant law
(in the expected words of the judge, if known), the
burden of proof, and applicable legal presumptions. The
attorney should show how the law applies to the issues
and facts at hand. (Matlon Communication 273) The
24


attorney should not fail to explain the burden of proof,
and define the terms "reasonable doubt" and
"preponderance of the evidence." Whether the jury is
hearing a civil or criminal matter, the terms are easily
confused and can mean the difference between a favorable
and an unfavorable verdict.
Explanation
Elliott stated that:
Explanation is an element of great importance
in every forensic discourse. . . . [T]he
object of an explanation is to make the thing
explained clearer and more distinct (304, 308) .
Whether explained by relation (304), by probability
(338), by comparison (309), or by examples (309, 311),
Elliott asserted that explanation was a crucial part of
closing argument. The necessary purpose of explanation
is remind the jury of the pertinent facts of the case,
both stipulated and disputed, and "clear away confusion,
remove obscurities, and present facts so that they may be
perceived and understood" (3 04) .
Comparison is a very effective means of explanation,
by first setting forth something from everyday experience
and then comparing it to a fact or evidence from the
case. Using examples is also recommended by Elliott,
though if an actual example is not near at hand, the
25


theorized example must "not [be] a wild, unscientific
conjecture, but a conjecture framed by the imagination
under the command of the judgment" (310). Any
explanation that stretches credulity risks rendering the
entire discourse ineffective.
Narration
The narration of the closing argument is another
element of the genre. The narration should consist of a
cogent theme with one central point, coherency and
harmony, according to Elliott. The existence of rival
theories will undermine efforts to construct a consistent
narrative; one should be selected and adhered to (327,
328). Matlon notes four different types of themes:
underdog, undefeated, victim, and contrast (Communication
180). Additionally, it is better to err to the side of
simplicity, rather than including too much detail, as:
[a] narrative overcrowded with persons divides
and distracts the attention of the jurors, and
it is better to leave some unnoticed than to
bring too many into view. (Elliott 340)
Emotional Appeal
Another substantive element of the closing argument
is the emotional appeal, or, as Aristotle4 first and
4 Aristotle said of pathos, "the hearers themselves
26


Elliott later called it, pathos. Elliott, however, gave
pathos short shrift (a mere two pages) and less respect
in his treatise, stating that "an open and avowed appeal
to their passions is regarded, and not unjustly, by most
men, as an effort to profit by the weakness of human
nature." He noted that argument must never be eclipsed
by emotional appeal, but that argument must be open and
appeal concealed (3 92) .
Stein and Matlon, on the other hand, have more
respect for the emotional appeal:
[Y]ou must also keep in mind that juries make
decisions based on their emotions.
Consequently, you should speak to this tendency
from the start of the case. The closing
argument should start slowly and gradually
build up to the crux of your emotional appeal.
(Stein §204, 12)
Although blatant appeals for sympathy are
prohibited, "dry appeals purely to the intellect with no
emotional content are not very persuasive." Appeals can
be made through oratory or through demonstrative
evidence, also known as visual aids. "Tangible, visual
evidence involves the eye and is powerfully persuasive
when used in the closing argument" (Matlon Communication
276-77) .
(..continued)
become the instruments of proof when emotion is stirred
in them by the speech. ..." (Golden 30, quoting from
27


Request for Verdict
The final element in the substantive portion of the
closing argument is the request for the verdict. Past
and present writers agreed that this must be done with
delicacy and balance. For the last 100 years, attorneys
have debated whether to directly state their request for
a verdict, as opposed to allowing the jury to come to
their own conclusion, in the belief that persons remained
more convinced if they participated in their own
persuasion. To be sure, attorneys are uniformly advised
against telling the fact-finder that they have "no choice
but to decide thus and such." This leads to an emotional
state called "reactance." Stein states that:
[p]eople resent being dictated to and if given
a chance they rebel. Jurors have the chance
and when told there is only one way they can
act they will become quite resourceful in
finding another way. (§204, 12)
Before the technical term was coined, Elliott explained
reactance this way:
The advocate who should avowedly attempt to
influence a jury by announcing that they must
be governed by a consideration of the
consequences to which a verdict against his
client would lead would set the jury hard
against his cause, (emphasis added)(391)
(..continued)
The Rhetoric, trans. by Jebb, p. 6)
28


However delicately the plea is made, "the final
words of this closing argument appropriately end with a
specific request for action" (Matlon Communication 376).
According to Stein, "You must make it clear what it is
you want from the jury." This is easier in a criminal
trial than a civil trial, where there are only two
possible outcomes. It is generally believed that in
smaller civil cases, specifying an amount of money may be
perceived as greedy, while in larger cases, jurors
appreciate the guidance. Ultimately, "everything should
be focused on the result desired and the jury must be
informed what the litigant wants" (§216, 28-30) .
Stylistic Element
The stylistic element of a genre is characterized by
the form of the rhetoric (Foss 112). Elliott focused a
great deal in his writings on style.5 This might be
attributed to the "pre-mass-media" emphasis of the
previous century on rhetoric and speaking ability.
People then had a greater appreciation for the orator.
The stylistic elements Elliott considered most important
5 Elliott's focus is reinforced by Parkinson, who
concluded, based on research, that "language behavior may
impact on trial outcome and certainly suggest[s] that the
language style of a courtroom performance may be more
29


were word choice (e.g., powerful, sparkling), types of
illustrations, including analogy and metaphor, and
cautions against "excessive ornamentation" or overtly
vicious attacks against opposing counsel or the client.
He said little about the actual presentation or delivery
of the speech. MatIon, in contrast, emphasizes the
importance of the delivery, together with the framing of
the words. Stein, too, touches on the importance of
keeping the jurors' attention through use of language,
delivery techniques, and varying the presentation of the
evidence.
Language
Elliott stated at the beginning of his treatise
that:
[M]en are pleased with expressive and beautiful
language. ... If the discourse sparkles with
bright thoughts and striking words, the mind of
the juror is opened to conviction. (283-84)
Matlon states that the idea is "to control listeners'
perceptions to keep attention on the speaker's message by
using language that is vivid" (Communication 278). He
recommends the use of short, vigorous words that elicit
mental pictures in the minds of the jurors. In
addressing the importance of simplicity, Elliott says:
(..continued)
important than argument structure or even evidence" (18).
30


The words of power are special words, and the
special words of greatest power are, generally,
the short, simple and plain ones. A man
thoroughly in earnest seldom uses grand words.
(292)
Elliott underscored potential negative choices of
language, as well. While advocating the use of vivid
speech, he cautioned against the use of "excessive
ornamentation," as it may work against the sincerity of
the attorney and seem as if to be speaking for the
appearance of gaining applause. He warned against the
use of opprobrious language:
Beware of coarse, brutal invectives; avoid
unmerited abuse; never so censure as to make it
seem a persecution; be merciful, indeed,
charitable to the weak, and never ridicule
without just cause. (322)
Matlon agrees that, although intense language should be
used, it should never be foul or abusive or otherwise
considered inappropriate (281).
Elliott and Matlon agree on the importance of
analogy and metaphor for persuasion. Elliott said:
Metaphor is . . the clearest mode of
expression that can be adopted, it being much
easier for uncultivated minds to comprehend a
similitude or analogy than an abstract term.
(286)
"It has been said that nothing moves jurors more
convincingly than "an apt comparison to something they
know from their own experience is true" (Matlon
31


Communication 279). Moreover, analogies are persuasive
because they "first provoke and then reward the
listeners' intellectual pride" (279).
Delivery
Matlon, in quoting John M. Conley, stresses the
importance of the delivery of the closing argument: "The
manner in which a person speaks may as important as what
he says in shaping the conclusions of his audience"
(Communication 278). Delivery should be conversational
and friendly. Speed should be varied, but not so fast as
to imply deception, nor so slow as to deaden the ears.
Pitch, too, should vary, though a high pitch is less
credible than a deep one. Pauses create drama and
suspense, and should be used just before making an
important point. Physical gestures should be consistent
with the mood of the speech. Stein speaks to the
importance of maintaining eye contact, which establishes
rapport and maintains interest, and gestures that
coincide naturally with changes in pacing or thought.
Presentation of Evidence
Elliott said nothing about the use of demonstrative
exhibits during the closing argument, while Matlon and
32


Stein consider them a valuable tool for maintaining the
audience's attention. This is very likely attributable
to the increased present-day emphasis on visual
stimulation. Visual aids that may be used to communicate
the theme and issues to the jury include charts, graphs,
physical evidence, photographs, computer animation,
diagrams, and accident scene recreations. All help
maintain attention. "Tangible, visual evidence involves
the eye and is powerfully persuasive when used in the
closing argument" (MatIon Communication 277) The
demonstrative evidence, however, must either relate
directly to the facts of the case, or must be used
strictly for illustrative purposes; otherwise, it may be
found objectionable and its use not permitted.
To reiterate, then, the stylistic elements of
closing arguments include: vivid, expressive, simple
language, without excessive ornamentation or abusive
assertions; frequent use of analogies, metaphors and
other forms of illustration; varied delivery through use
of speed, pitch, and gestures to maintain attention; and
the use of visual aids.
33


Organizing Principle
The organizing principle must encompass the purpose
of the rhetorical address. With reference to the genre in
question, as stated by Matlon:
Closing arguments are designed to persuade the
jury to adopt a certain version of the case
facts; they are argumentative speeches designed
to focus on and clarify certain issues, which
will guide the jury in their deliberations by
giving them arguments they can use as they face
each other in the jury room. (Communication
269)
The purpose was the same 100 years ago. Elliott taught
that "the argument must be adapted to the case, and
framed with the single purpose of securing the verdict of
the jury in that particular case" (282).5 The goal,
however, remain the same, that is, the persuasion of the
finder of fact to render a favorable verdict. The goal
is accomplished through the use of the situational,
substantive and stylistic characteristics, though it
should not be confused with the organizing principle.
To repeat the elements to be encompassed by the
organizing principle, closing arguments are situationally
as they have been for well over 100 years, with one major
6 Actual case law is somewhat more neutral, declaring
that the "[r]ole of the attorney in closing argument is
to assist the jury in analyzing, evaluating and applying
evidence...." (Stein, §3, 5, quoting United States v.
Garza. 608 F.2d 659 [CA5 1979])
34


exception. They are still given by attorneys in a
courtroom to the triers of fact (whether a jury, judge or
arbitration panel) following the presentation of the
evidence, and immediately preceding the deliberations.
The difference lies in the social and cultural
atmosphere. It is the beliefs, attitudes and values of
all persons involved that set the stage for the
persuasion attempt.
Substantively, the text must adhere to the rules of
evidence regarding admissibility, argumentation and
procedure, or risk an objection. It should: encompass
the theory of the case; review the evidence; put forth
arguments using warrants or appeals that allow the jury
to draw favorable inferences; discuss the law of the case
and how the evidence satisfies those requirements; rebut
opposing counsel's evidence and conclusions; employ
emotional appeals; and ask for a favorable verdict.
Stylistic elements include choice of language, tone
(use of positive or negative language), imagery, use of
analogies, metaphors and similes, delivery, and use of
demonstrative evidence.
The organizing principle within a genre is:
a set of assumptions that crystallize the
central features of a (any) type of discourse.
Such principles involve a root term,
representing an idea, which serves a canopy-
35


like functionenveloping through implied
association all which falls within its
authority. (Harrell 264)
The organizing principle of the closing argument,
then, is the presentation of an alien, unfamiliar story
in familiar terms in order to influence the jury to
render a favorable decision. The story is explained
through narrative devices, including metaphors, analogies
and appeals to experience, which, in order to be
effective, must be familiar to the jurors. An emotional
appeal is made, which includes a request for a favorable
verdict. The language used is interesting and colorful,
in order to maintain the jurors' attention. The delivery
is varied in pitch, tone and volume. The facts and
evidence are summarized in ways to make them more
prosaic, and the law defined, all designed to make the
story palatable. Situationally, the address is given by
an attorney at the close of evidence and just prior to
deliberations in a trial. The exigence to which it
responds is the presentation of evidence by the opposing
side. Finally, the closing argument is always directly
influenced by culture.
This chapter dealt with the characteristics of
closing arguments generally. The following chapter will
examine the closing argument in the Borden case.
36


CHAPTER 3
CLOSING ARGUMENT IN BORDEN CASE
The Honorable George Robinson, ex-governor of
Massachusetts and friend of the Borden family, had a
difficult task, that is, to save his client from
conviction and the gallows; and to do so while
reconciling the conflicting ideologies of women: the
morally incorruptible woman and the periodic female
lunatic. A third image of women was becoming evident
near the turn of the century, that of the New Woman.
Because of booming industrialization, the middle-
class woman was becoming caught up in a life of
consumption, but was also experiencing for the first time
value outside of the domestic sphere. With more leisure
time, the New Women were joining clubs and societies,
such as the Women's Christian Temperance Union, and
learning to participate in the political process working
for change in society. Moreover, they began wanting to
decide their own priorities and achieve economic autonomy
(Schuetz 65).
The morally-incorruptible feminine model, by
contrast, possessed no economic, political or legal
37


authority or ambitions. The home was their sphere of
influence. They were thought, by their moral
superiority, to hold moral authority and influence over
their fathers and husbands, into whose care they were
committed (Robertson 368). This was in stark opposition,
however, to the "periodic lunatic."
Although a detailed explanation of turn-of-the-
century cultural perceptions of women is beyond the scope
of this paper, some comments about the assumptions of
criminality are in order, so as to better understand the
"periodic lunatic." As of the time of the Borden trial,
the very nature of women was thought to be biologically
different from that of men. This was due, in great part,
to the inordinate emphasis placed on women's reproductive
systems. Part of this emphasis resulted in various
theories being propounded for women's aberrant behavior:
hysteria, insanity and "periodicity." Doctors initially
claimed that hysteria was due to a "wandering womb"
(though with improvements in neurological research, they
later changed that etiology to a brain disorder).
Hysteria was used to explain transgressive acts of
women, but could not be used to explain criminal
violence. Lombroso and other criminologists looked to
38


epilepsy for one such explanation.7 Being seen as
"periodic," epilepsy was transferred onto all women as
analogous to the normal biological cycle. (This had the
quasi-legal advantage of denying the responsibility of
women for their actions during such a "biological
episode.") This led naturally to the belief that a woman
was most vulnerable to criminal impulses during the onset
of menstruation. Defined again by biology, the female
criminal lunatic:
is, however, only an exaggeration of her normal
state, [in that] her madness becomes more acute
at particular periods, such as menstruation,
menopause, and pregnancy. (Robertson 385-389)
As it was acknowledged that Borden was on her period at
the time of the murders, Robinson had his hands full
trying to harmonize the three competing images of
womanhood. As will be shown, he did an admirable job.
Situational Element
"The situation always influences rhetorical events"
(Schuetz 84). Closing arguments have shared nearly
7 Lincoln suggests that Borden was afflicted by temporal
lobe or psychomotor epilepsy, an illness that causes
temporary blackouts while participating automatically in
everyday activities. She uses this to explain Lizzie's
aberrant spells, saying "Lizzie Borden did not kill her
parents because she had an ambulatory seizure of temporal
epilepsy. But all evidence indicates that she killed her
stepmother during one" (42).
39


identical situational elements, at least generally: those
of the persons involved, objects, relations, and
exigence.8 The primary difference has been cultural. As
shown above, the 1890s were a time of upheaval in the
public perception of women and their roles. Prosecutor
Knowlton was well aware of the apprehensions of the all-
male jury in trying a woman for a heinous crime:
[Women] are no better than we. They are no
worse than we. If they lack in strength and
coarseness and vigor, they make up for it in
cunning, in dispatch, in celerity, in ferocity.
If their loves are stronger and more enduring
than those of men, on the other hand, their
hates are more undying, more unyielding, more
persistent. (Spiering 168)
In assuming this stance, the prosecution attacked the
prevailing ideology of the essential goodness of middle-
class womanhood (Robertson 396). In doing so, they
likely precipitated their own defeat.
Substantive Element
The relating of the evidence and conclusions to be
drawn therefrom tend to occupy the greatest portion of
the closing argument. Within the closing argument are
ideational variables which in a legal context are the
disputed facts affirming or denying that the defendant
8 Because the legal system relies on evidence and
argumentation, the situational variables are supposed to
40


committed the crime. They also consist of central ideas
and the ideology buried in the ideas. In the legal
context, the central ideas refer to the case theory,
evidence, claims or justifications (also known as
warrants), whereas the ideology refers to the legal and
social presumptions (Schuetz 71-72). Robinson's use of
warrants of classification and motivation through the use
of values and beliefs was, in the end, quite persuasive.
Robinson gave the very model of a closing argument,
incorporating Elliott's recommendations and violating few
of the prohibitions. He explained the testimony and
physical evidence (which was all circumstantial) in
classic style, addressing, in turn, the motive (Classics
200-01, 226-34), the question of the blood (202, 253,
263-66), the lack of a murder weapon (203-04, 246-52,
263, 266-67), the burning of a dress after the murders
(237-42, 265) and other issues of lesser importance.
In addition to creation and sustenance of the themes
of morally-wholesome womanhood and embattled innocence,
he repeated the facts of the case (Classics 198-99), had
praise for the jurors (185, 188, 274) and district
attorney (185-86, 204), explained his interpretation of
the evidence, developed an emotional appeal based on a
(..continued)
be less important.
41


paternalistic image of the jury with the defendant "in
their care," and specifically asked the jury for an
acquittal (all which will be set forth in greater detail
below). He explained the legal presumption of innocence
(192, 200), the concept of reasonable doubt (194), and
the responsibility of the jurors to be unbiased and
unprejudiced (189-190, 268). How he formed the substance
of his argument will now be examined.
Theme
The theme of the defense was first introduced in the
opening statement. It centered around the socially-
acceptable traits and character of the defendant as a
young, charitable, upper-middle-class, religious woman
who lived with her parents in the family home. This
central idea was developed through the testimony of
witnesses and later incorporated a secondary theme of
beleaguered innocence during the closing argument. The
plan was to so develop the primary theme as to plant
doubt in the minds of the jurors by creating confusion
between their images of morally-upright women and the
sort of "fiend" who would commit parricide.9
9 In doing so, Robinson had to scrupulously avoid any
references to the "periodic lunatic."
42


He developed the additional theme of "beleaguered
innocence" through his description of the protracted
police interrogation the day of the murder, almost
sexualizing the investigation saying:
Thank the Lord there was enough left of her so
that she could be cool under the visitations of
gentlemen who flocked there by the score
[searching through] her clothes, her dress, her
unmade dress, her shoes, her stockings,
everything. . . (Classics 272)
Evidence and Facts
Robinson described the hypothetical perpetrator as
one experienced and familiar with the use of a hatchet,
implying that a woman delicately raised had no
familiarity with such things. His argument utilized the
warrant of classification, in that, since she was of the
class of benevolent, young, Christian women, she was
incapable of such a murder (Schuetz 78). He, therefore,
substituted a hypothetical male perpetrator in place of
the female lunatic.
Robinson challenged the jury to try to imagine how
no blood was found anywhere on Borden's clothing or
person, and, tongue in cheek, theorizing that perhaps she
committed the murders in the nude. The jury was then
told to:
[C]reate your monster, and then put into him
the devil's instincts and purposes, and you
43


have created a character. But start with a
woman, with woman's impulses and a daughter's
love, and your imaginings are foreign and base.
(242)
Explanation and Narration
Robinson's most frequent emphasis was to narrate and
explain Borden's public character, including her "steely
nerve" (Classics 225, 271, 273), her charitable nature
(227), and her distress upon finding her father's body
(234-35, 267). He appealed to the backgrounds of the
jurors when he declared:
[0]ur human experience teaches us that if a
daughter grows up in one of our homes to be 32
years old, . . . associating with the best
people and devoted to the service of God and
man, . . . spending her life for others, it is
not within human experience to find her
suddenly come out into the rankest baldest
murderess. (Classics 269)
Robinson explained Borden's lack of emotion during
the trial by speculating that she was driven to curb her
emotions by the strain of being watched all day, every
day. He explained that her emotions would only be
released when she could say:
[T]hough I know I am as innocent as the day I
was born, I recognize that under the law I must
stand this ordeal and . . when it is
over . . . then it will be time for me to
have the woman's nature again and exercise her
[sic] right to weep. (271)
44


Robinson's persuasive strength lay in his appeals to
experience, values and beliefs.10 Robinson's primary
appeal was to the all-male jurors' values and images of
womanhood. In referring to a man becoming dissolute and
possibly committing murder, Robinson stated:
Sometimes these great crimes are committed in
that way, but if you expect to find . . . that
a young woman like her was slaughtering her
father, when she herself was moral, and upright
and Christian, and charitable, . . you will
find something that the books have never
recorded. . . (Classics 227-28)
Further references to values and beliefs occurred
when Robinson referred to the jury's protection over the
woman (188), to country food and plain living (226) that
women have a dread of the courtroom (213), and that no
one who had grown up in their midst and attended their
schools could be a "foul murderer" (269).
Robinson frequently referred to common experiences of the
jurors. This persuasion device encouraged the jurors to
weigh the claim according to their backgrounds and
practices to determine whether the allegation was valid.
In an attempt to excuse Lizzie for not immediately
noticing the body of her stepmother, Robinson reminded
jurors that often they will not see something under their
10 As pointed out by Cotier, "The closing must appeal to
the jurors' values and sensitivities" (122).
45


own noses if they are not looking for it (Classics 206).
He referred to a tendency to linger in the yard under the
trees for a time (216), and to the ability of women to
pick around the cellar without getting dirty (221). When
faced with Borden's not calling her stepmother "Mother,"
he referred to the preference of some adults to call only
their natural mother by that title (228).11 He appealed
to the sanctity of motherhood when explaining Borden's
insistence on not calling Abby "Mother" by saying, "I
suspect that never a man never lets into the inner
chambers of his heart the feeling that anybody else in
the world can stand where his own mother did" (228) .
A particularly graphic allusion to experience
referred to the evidence of the size of the cuts in the
skulls. Robinson stated:
As you and I all know, when we strike a hatchet
like that down into something and then pull it
upas we are standing over the objectyou cut
into a squashdid you ever try that on the
floor?strike down that way and draw it up
don't you know that you make a broader cut than
just the blade of the hatchet? (247)
He also evoked the all-male jurors' paternalistic
instincts by repeatedly declaring, "You have her in
charge," "[T]here she stands, protected, watched over,
11 Any reference to "Mother" is also a powerful appeal to
values and sensitivities.
46


kept in charge by the judges of this court and by the
jury who have her in charge," "[A]s you have her in
charge to the Commonwealth whom you represent: It is not
just to hold her a minute longer. ..." (Classics 188,
189, 274) He also described her as "a little sparrow
. shielded by providence from above and by the
sympathy and watchful care of those who look over her"
(Schuetz 64).
Robinson's obvious intention was to utilize a
motivational warrant relying on the jurors' beliefs to
bring about an acquittal. Those beliefs included the
image of domestic harmony and dependency, not a "New
Woman" who wanted more than a comfortable home (Schuetz
79). With the jurors thus prepared, Robinson needed only
to plant sufficient doubt to allow the jurors to
exonerate Borden.
Additionally, (in true "O.J." style) Robinson was
well aware that the entire world was watching and waiting
for a verdict. He reminded the jurors:
She is not without sympathy in this world. She
is not having people by day and by night
thinking that it is not to be found out in
Massachusetts that so great a wrong against her
can be committed as to condemn her upon the
evidence that has been offered. (274)
47


Stylistic Element
Robinson's style was quite diverse. At times he
used widely-varied language, analogies and metaphors;
poetry and literary allusions; sentimentality and drama,
and demonstrative evidence.
Language
Robinson's first few sentences, the "silver bullet,"
were comprised of a description of "one of the most
dastardly and diabolical of crimes." The remainder of
the paragraph uses words such as "enormity," "outrage,"
"perpetrator of such terrible acts." During his
introduction, then, Robinson was able to gain the
attention of the jurors, along with their agreement with
his proposition that the crime was terrible and must be
punished. (Classics 183) The next few paragraphs
continued the use of image-evoking language, within which
he began planting the seeds of another perpetrator,
saying:
[W]e are challenged ... to find somebody that
is equal to that enormity, whose heart is
blackened with depravity, whose whole life is a
tissue of crime, whose past is a prophecy of
that present. A maniac or fiend, we say. Not
a man in his senses and with his heart right,
but one of those abnormal productions that
Deity creates or suffers, a lunatic or a devil,
(emphasis added) (183)
48


His choice of language ranged at times from
laudatory to condemning. The harshest language used by
Robinson was reserved for the police, asserting that they
felt pressure to bring in a suspect. He stated, in fact,
that "[the sheriff is] standing before a community that
demands the detection and punishment of the criminal,
blamed if he does not get somebody into the lock-up
before morning" (Classics 187). He later claimed more
bluntly of the prosecution's Case:
It is a fraud, it is a theory, born in an
emergency at a time of disaster. It is a
theory that was sought to be set up here to
work a conviction, to which men have testified,
I do not say dishonestly, but mistakenly. (253)
Robinson used positive language about the assembled
judges12 and the jurors themselves, while evoking
powerful images of "the broad seashore, the breezes of
the sea," and proclaimed, "here is freedom, here is
right, here are you, gentlemen." (185)
Robinson's language was frequently sentimental,
especially when referring to Borden's devotion to her
father. He referred to a ring given by Lizzie to her
father as "a pledge of plighted faith and love, that
typifies and symbolizes the dearest relation that is ever
12 Under Massachusetts law, a panel of three judges was
required to sit over capital cases.
49


created in life. ..." (Classics 233). He challenged
the world to prove that she murdered the man who loved
her so much, then subtly reminded the jurors of the
severed father-daughter relationship when asking them to
take her in their charge (188-89) .
Metaphors and Analogies
Other potent instruments of persuasion are
metaphors, similes and analogies.13 Robinson referred to
a weak-willed man as "one of these miserable pieces of
putty on whom the last man who stuck his finger into him
can make an impression" (Classics 190), and later
proclaimed, "I am clad all over with the presumption of
innocence" (192). He likened outspoken persons to dogs
who bark but do not bite, stating:
The dog that comes round to your heels and
barks is not the one that bites. It is the one
that stays inside and looks serious, you will
find. So it is with individuals. (230)
He also personified the various hatchets and axes found
in the Borden home, declaring "this little fellow" to be
"innocent," "in good company," and "somewhat disgraced by
its former associations and suspicions" (246-47) .
13 Ring contends, "[A]nalogies are the most powerful form
of persuasion" (62). Crawford explains that this is
because "pathos and the story make a version of reality
come alive and take on the psychological and persuasive
dimensions of powerful evidence" (180).
50


The defense took care to draw comparisons and
analogies between the defendant and the jurors. Robinson
further invoked the images of domestic womanhood when
explaining Borden's presence in the house at the time of
the murders, saying:
I don't know where I would want my daughter to
be than to say she was at home, attending
to the ordinary vocations of life, as a dutiful
member of the household. (Robertson 409,
Classics 205).
When explaining her lack of recollection about her
morning activities, Robinson said, "Do you suppose that
your wives and daughters can tell the number of times
they went up and down stairs six months ago on a given
day?" (Classics 209)
Poetry and Literature
Robinson's literary flights included a quote from
Shakespeare as a reminder to the jury of their
obligation, saying, "'To thine own self be true, And it
must follow, as the night the day, Thou canst not then be
false to any man'" (Classics 192). Referring again to her
lack of emotion, he quoted a popular song that said,
"'The eyes that cannot weep / Are the saddest eyes of
all,'" then continued, "And then when the flood is
allowed to run, the heart breaks out again with the
51


refrain-'Oh, ye tears, I am thankful that ye flow'"
(272) .
Drama
Robinson's argument made frequent use of drama, but
nowhere more effectively than in his final remarks.14
Robinson made an appeal to fear in reminding the jury of
the utter finality of making a mistake in their decision,
pronouncing that:
To condemn her as guilty of the diabolical
crimes that have been described to you when
there remains any reasonable doubt in the mind
of any one of you of the true verdict would be
so deplorable an evil that the tongue can never
speak its wickedness. (Classics 273)
Demonstrative Evidence
Delivery
It should be noted before ending that Robinson used
physical evidence in his closing argument. In
illustrating the lack of a murder weapon, he handled each
of the hatchets and axes found at the Borden residence.
Unfortunately, as this was a written text and was
delivered over 100 years ago, little can be known about
14 Crawford reminds lawyers that "your last few sentences
have a special psychological significance. These last
words are likely to hover over the courtroom and remain
vivid in the minds and feelings of jurors long after you
have concluded" (171).
52


Robinson's delivery. Nothing was found that addressed
his gestures, body language, vocal inflections, tone,
volume or diction. Those elements of style, therefore,
are beyond the scope of this analysis.
Organizing Principle
The organizing principle "is the label for the
internal dynamic of the constellation that is formed by
the substantive, stylistic and situational features of
the genre" (Foss 112). The organizing principle of
closing argument refers to, as stated earlier, the
presentation of an alien, unfamiliar story in familiar
terms in order to influence the decision of the jury, the
audience. The story is characterized by a reiteration of
the facts and evidence, principally through the
rhetorical devices of narration and explanation, and is
directly influenced by culture. It is a deliberate
attempt to persuade the audience to find in favor of the
client through use of emotional appeals, analogies,
metaphors and visual demonstrative exhibits.
Robinson explained the lack of physical evidence in
such a way as to conform with what the jury believed in
their hearts, that a young, benevolent, white, upper-
class woman was incapable of murder. In explaining the
53


lack of obvious motive, he conformed to the image of the
domestic female of that time who wanted nothing more than
a home and family. Such a woman could never be motivated
to kill for mere money.
In personifying the hatchets, he used a story form
to make possible weapons into old friends. His numerous
appeals to common experiences and feelings included the
comments about the seashore and fresh air, his mentions
of the term "Mother," and his references to jurors'
experiences with their own wives and daughters.
He transformed her lack of an alibi (being at home
in the morning) into feminine normality, which was
familiar. He forced the jury to examine the contradictory
images propounded by the prosecution and the defense. If
the jury found that "an insane fiend lurked beneath the
image of Miss Lizzie, then outward feminine normality was
meaningless" (Robertson 413). Although the prosecution
attempted to agree initially with the defense's
representation of Borden's character, they arrived at an
opposing valuation when measured against the same norms,
to their detriment (413).
Robinson took the testimony of various witnesses and
wove a story of a large, strong, foreign male, nervous
and suspicious-looking. In speculating that the murderer
54


was actually a stranger, he took the potential for murder
out of the hands of the "insider-woman" well-known to the
community and reconciled it with the jurors' beliefs of
who a likely criminal was.
This chapter dealt with the closing argument in the
Borden matter. The following chapter will examine
whether the Borden closing argument constitutes a good or
poor example of the genre of closing arguments, and
whether Ms. Borden's acquittal might be attributed to the
argument.
55


CHAPTER 4
CRITICAL EVALUATION
To reiterate, Foss notes four critical elements that
must be examined in generic criticism: situational,
stylistic, substantive, and the organizing principle.
Those were explained in the preceding chapters. It
remains, then, to apply the actual argument to the genre.
Situational Element
The situation in generic criticism is a circumstance
requiring a rhetorical response. The situation is
comprised of persons, events, objects, relations, and an
exigence, that is, a condition that makes a demand. It
is also inextricably grounded in its culture.
The situation in a closing argument is comprised of
the attorneys, the parties, the judge and the jury. The
event is usually a trial. The exigence is the legal
question that brings the components together.
In the Borden matter, the exigence was found in the
trial of Robinson's client for her very life. The 1890s
culture was influenced by three prevailing and
contradictory images of women: the morally-superior
56


woman, the periodic lunatic, and the New Woman. Robinson
used the morally-superior female image to demonstrate why
the defendant could not possibly have murdered her
parents, relieving the jury of the responsibility of
sending Borden to her death.
Substantive Element
Substantive strategies deal primarily with the
content of the rhetorical message. The message is
dictated by written and unwritten rules, and influenced
by the culture.
The customary devices forming the substance of the
closing argument are explanation and narration of the
evidence and facts, a summary of the testimony, arguments
made through use of appeals and warrants, and description
of the exhibits. The attorney is not required, but is
well-advised, to explain concepts of law, such as
"reasonable doubt" and "preponderance of the evidence."
Persuasion is facilitated by the use of emotional
appeals. Finally, the attorney should tell the jury
exactly what is desired, that is, a favorable verdict.
Robinson included all of these elements. His theme
centered around the morally-superior character and
positive traits of Borden, and brought in a sub-theme of
57


beleaguered innocence. In his explanation of the
evidence and facts, he put forward a hypothetical
perpetrator that was more appealing to the jury.
He was able to rebut the prosecution's weakly-
presented argument on the depravity of women.15 The
prosecution attempted to argue that her menstruation
accounted for Borden's inconsistent answers during
interrogation without making an argument for menstrual
insanity.16 Should that line of reasoning have been
expanded, the prosecution would have been forced to
conclude that depravity can exist under a facade of
middle-class femininity, and that "Borden may have been
most profoundly herself at the time of the murders rather
than temporarily possessed" (Robertson 412). The
prosecution, therefore, was in a double-bind from which
there was no escape. Robinson helped the jury resolve
their resulting cognitive dissonance by arguing against
the co-existence of pathological femininity and morally-
incorruptible womanhood.
15 This attitude may have echoed Lombroso, who argued,
"[T]he female born criminal surpasses [the male] in
cruelty and in the exaggerated atavism of her features
and sentiment. . . [W]omen destined to criminal
activity are morally more depraved than their male
counterparts" (Robertson 379).
16 The prevailing beliefs of the day, however, would have
said that Borden could not, in that condition, have
58


His greatest strength lay in his frequent appeals to
the jurors' experience. For example, he suggested to
them that a person seldom sees something (albeit a dead
body) that they are not looking for. He reminded the
jury (made up of mostly farmers) of experience using a
hatchet. He told them that Borden should not be blamed
for not accounting for every movement, asking who among
them could do the same.
He appealed to their paternalistic instincts by
turning the defendant "over to their care and keeping"
and calling her a "little sparrow." He also appealed to
their desire to be socially-acceptable by reminding them
that the entire world was watching and waiting for their
decision.
Robinson clarified points of law. He explained the
concept of reasonable doubt and told them that they could
not fault Borden for not taking the stand.
Finally, he asked the jury for an acquittal,
explaining to them how justice demanded it. He appealed
to them to send her back to her "blood-stained and
wrecked home where she [had] passed her life so many
years" (Classics 274) .
(..continued)
formed the intent requisite to convict her for the crime.
59


Stylistic Element
The stylistic element characterizes the form of the
rhetoric. Writers of treatises and books on closing
arguments emphasize the importance of ingredients such as
clear and concise image-evoking language, metaphors,
analogies, stories, interesting delivery techniques, and
the use of demonstrative or physical evidence.
Robinson's language was vivid and descriptive,
especially in the first few paragraphs of his address.
He spoke of the "dastardly and diabolical crime," "a
heart blackened with depravity," "a maniac or fiend." He
praised the jury and judges. He condemned the police for
their rush to judgment.
He used frequent metaphors and analogies. He spoke
of "miserable pieces of putty," and being "clad all over
with the presumption of innocence." He quoted from
Shakespeare and from a popular song of the day.
Robinson personified the hatchets and axes found in
the Borden home. Additionally, he used them as physical,
demonstrative exhibits.
Organizing Principle
The organizing principle encompasses the purpose of
the address, as well as the situational, substantive and
60


stylistic elements. The organizing principle of a
closing argument is the presentation of an alien,
unfamiliar story in familiar terms to a jury in order to
persuade them to render a favorable verdict. This is
told through the use of narrative devices such as
metaphors, analogies, a cogent theme, and appeals to
experience and values. The stylistic features include
interesting, though understandable, language, varied
delivery techniques, and the use of visual aids when
appropriate. The situation remains much the same, with
an attorney presenting the closing argument after the
evidence has been offered and just prior to
deliberations. It is always influenced by the culture of
the audience.
It remains to determine whether this closing
argument can be directly linked to the acquittal. There
is no way to answer that question with absolute
certainty. As explained above, George Robinson certainly
incorporated all of the elements of a superior closing
argument. He had a thorough knowledge of the attitudes
and beliefs of his audience. He used interesting
language, warrants, drama, and appeals to emotion. He
asked the jury for his verdict. But a trial is too
61


complex to assert that the verdict rests on one factor
alone.
As a dynamic process, too many elements exist in a
trial to say that one is the ultimate deciding component.
Robinson, for example, had appointed one of the judges
during his term as governor. The grateful judge, it has
been suggested, made many evidentiary decisions in favor
of the defense.
Schuetz points out criticisms of the prejudicial
jury instructions of the same judge, and the irregularity
of the participation of the defense in the grand jury
proceeding (62). Lincoln brings up charges of
impropriety against the Fall River judge who conducted
the inquest (167) Moreover, there were other
improprieties during the trial: witnesses to were allowed
to listen to the testimony of other witnesses; the
attorneys promised during opening statement to present
evidence that was never allowed; and the observers in the
courtroom applauded certain testimony, reinforcing
community attitudes (Schuetz 84).
In this case, Robinson asked directly for an
acquittal of Lizzie Borden, even venturing into enemy
territory by forcing the jury into making a most
difficult choice: either free her or execute her.
62


The evidence against Borden was entirely
circumstantial. With no witnesses, no weapon, no blood,
no confession, and a case that flew in the face of
middle-class values, the prosecution had a gargantuan
task:
The inability of the public and the prosecution
to reconcile successfully the oppositional
images of bereaved daughter and murderous fiend
provided the reasonable doubt necessary for her
acquittal. (Robertson 376)
As Schuetz observed, "[T]he defense earned the acquittal
by relying on warrants connecting their claims about
women with the values of the jurors (77)." Robinson used
those values to his advantage in presenting a persuasive
and ultimately successful closing argument.
The Borden matter contains many interesting
opportunities for further study. As stated in the first
chapter, a feminist study of the closing argument would
examine the prevailing images of women and how the
culture of that time constructed gender. A values
analysis would examine the core beliefs in the text and
the cultural implications of the word choices made by
Robinson.
As the mystery of the double-murder was never
solved, this would be another point of inquiry. Robinson
implied that the murders were committed by a dark,
63


foreign stranger that had been seen in the neighborhood,
appealing to the prejudices of the community. A
newspaper conjectured that Lizzie was pregnant by her
uncle and was attempting to hide the fact; it was later
forced to print a retraction Others speculated that they
were committed by an illegitimate son of Andrew's.
Though the puzzle may never be solved to the satisfaction
of all, it will continue to capture the imagination of
both amateur and professional criminologists.
64


APPENDIX A
TRANSCRIPT OF CLOSING ARGUMENT
65


Lizzie Borden
CLOSING ARGUMENT FOR DEFENDANT BY
HON. GEORGE D. ROBINSON.
May it please your Honors, Mr. Foreman, and gentlemen:
One of the most dastardly and diabolical of crimes that was
ever committed in Massachusetts was perpetrated in August,
1892, in the city of Fall River. The enormity and outrage
startled everybody, and set all into the most diligent inquiry as
to the perpetrator of such terrible acts. Our society is so con-
stituted, gentlemen, that every man feels that the right must be
done and the wrong punished, and the wicked doer brought to
his account as promptly as due procedure of law will permit.
Here then was a crime with all its horrors, and well may those
who stood first to look at the victims have felt sickened and dis-
tressed at heart, and human nature be broken, so that the ex-
periences of a lifetime will never bring other such pictures.
Who could have done such an act? says everybody. In the
quiet of the home, in the broad daylight of an August day, on
the street of a popular city, with houses within a stones throw,
nay, almost within touch, who could have done it?
Inspection of the victims disclosed that Mrs. Borden had
been slain by the use of some sharp and terrible instrument, in-
flicting upon her head 18 blows, thirteen of them crushing
through the skull; and below stairs, lying upon the sofa, was
Mr. Bordens dead and mutilated body, with eleven strokes
upon the head, four of them crushing the skull.
The terrors or those scenes no language can portray. The
horrors of that moment we can all fail to describe. And so we
arc challenged at once, at the outset, to find somebody that is
equal to that enormity, whose heart is blackened with depravity,
whose whole life is a tissue of crime, whose past is a prophecy
of that present. A maniac or a fiend, we say. Not a man in his'
senses and with his heart right, but one of those abnormal
productions that Deity creates or suffers, a lunatic or a devil.
So do we measure up the degree of character, or want of it, that
could possibly prompt a human being to such acts.
183


Classics of the Courtroom
They were well-direeled blows. They were not the result of
blundering. They were aimed steadily and constantly, lor a pur-
pose, each one finding its place where it was aimed, and none
going amiss on the one side or the oilier. Surely we arc
prompted to say at the outset, the perpetrator of that act knew
how to handle the instrument, was experienced in its control,
had directed it before or others like it, and it was not the care-
less, sudden, untrained doing of somebody who had been un-
familiar with such implements.
Now, suspicion began to fall here and there. Everybody
about there even called to account so far as could be. That is
proper. That is right and necessary. Investigation proceeds. The
police intervene. They form their theories. They proceed to .act.
They concern this one and that one. They follow out this and
that clue with care to them. They arc human only. And when
once a theory' possesses our minds, you know how tenacious-
ly it holds its place and how slow the mind is to find lodgment
in something else.
Now, no decent man complains of investigation. No one
says there ought not to have been anything done. Everything
ought to have been done. Nay, more, we say, everything was
not done and that the proper pursuit was not taken. Now,
proceed with this matter a little and let us see how we stand. A
person is charged with a crime like this defendant. Suspicions
surround her, investigations in regard to her proceed and in-
evitably, naturally, if the matter is deemed of consequence, she
is brought before the Courtthe District Court in that instance,
to have an examination preliminarily into the probabilities of
the crime on her part. Then, if she, having nothing to do with
it, having no control of it, having no opportunity except to be
heard that justice ought not to bind her and compel her to
answer to this Courtwhat then? Then llic Grand Jury of the
county is called together and sits by itself under the direction
of the District Attorney, to investigate and see whether it ought
to come before a jury like yourselves. Now, remember at that
time and when this indictment or last December was framed,
this defendant had no voiceit was purely one-sided. They
184
Lizzie Borden
said, We make this charge, serious as it is, against the defen-
dant. We will ask her to come to die Bristol County Court
House and meet that charge, and if we cannot prove it against
her in the ordinary way, she shall go freeshe is not guilty."
Now that is one-sided up to that point, practically, and so you
are to draw no inference whateverand I know you will not
you will draw no inference whatever as against this defendant
until you have heard the evidence in this case, in diis courtroom
at this lime.
You have nothing to do widi what was done in Fall River,
any more dian you have with what is now proceeding in
Australia. The finding of Judge Blaisdcll of the District Court
in Fall River, wordiy man as he may be, is of no sort of conse-
quence here and has no sort of influence or obligation over you.
We would not be saTc if in these great crises our lives hung
upon the decision of a single man in a prejudiced and excited
community. No, we walk away from Fall River, we come down
to the broad seashore, we sniff the breezes of the sea; and here
is freedom, here is right, here arc you, gentlemen.
I say, then, at the outset, as you begin to contemplate this
crime and its possible perpetration by this defendant, you must
conclude at the outset that such acts as those are morally and
physically impossible for this young woman defendant. To
foully murdcrhcrstcpmothcr and then go straightaway and slay
her own father, is a wreck of human morals: it is a contradic-
tion as to her of her physical capacity and certainly.
Now before 1 pass, let me say that this defendant complains
of no persecution on the part of the District Attorney of this dis-
trict. He has only one duly, and that is as a gentleman and a
lawyer to conduct this investigation so that the truth as to Iter
may be elicited. With his well-earned reputation and his high
standing at the bar, he would have no need to search for laurels
for his fame, and he is one of the last men that would demean
himself so as even to think of it. 11c stands above the miserable
assertions that unthinking people will make, and walks into this
courtroom only as the representative of the Commonwealth of
185


Classics of the Courtroom
Massachusetts, that is yours and mine and his, and says
"Gentlemen, all I have to show you is the ease we have against
this woman. And if the case I have brought to me by the Fall
River police is not sufficient, or you have any doubt .about it,"
he will say, ifhc speaks what his heart prompts him to utter
he will say, for Gods sake, say so like men, and Bristol Coun-
ty will be the happier and the securer afterwards.
Me is not here for blood, neither is he helped to such
dishonorable work, if it were attempted, byourcxccllcnt friend,
the District Attorney from the great county of Essex, one of our
best and most reliable lawyers. So you will see no small play;
you will see no mean tactics on the part of the Commonwealth
here, but only a presentation not overstrained in one jot or one
tittle, a presentation of what has been proved here, and only
that.
So merei fill is our provision of the law that a defendant shall
have a decent chance that she becomes convinced how faith-
fully that is carried out, when she recalls the numerous kind-
nesses and considerations on the part of the sheriff of this
county. Me has done with her, not as a convicted criminal, but
as a young woman of this county entitled to her rights guaran-
teed to her in the Constitution and laws of our State. And so she
comes into this court, presided overby our best of the judiciary,
clean, able, honorable gentlemen, who sit vigilantly by on the
bench to guard against any possible wrong, who want the
Commonwealths case tried, but the defendant to pass without
abuse or wrong, and taking the law into their hands as they will
give it to you, you have to deal only with the facts.
I said the ease was brought to the District Attorney by the
Fall River police. I have not lime to go into any sarcasm or
denunciation of those gentlemen. They arc like a great many
bodies of police that you find in all communities.
Policemen arc human, made out or men, and nothing else;
and die blue coat and the brass buttons only cover the kind of
a man dial is inside.
186
Lizzie Borden
And you do not get the greatest ability in the world inside a
policemans coat. You may perhaps get what you want, and
what is sufficient, but you must only call upon him for such ser-
vice as he can render.
Now when a police officer undertakes to investigate a crime
he is possessed and saturated with the thoughts and experien-
ces he has with bad people. He is drifting and turning in the
way of finding the criminal, magnifying this, minimizing that,
throwing himself on this side in order to catch somebody,
standing before a community that demands the detection and
punishment of the criminal, blamed if he does not get some-
body into ,lhc lock-up before morning. What arc the police
doing? say the newspapers; and llie newspapers, you know,
are not always right, mostly. Saying to him, Look here, Mr.
City Marshal, these murders were committed yesterday.
Havent you the murderer in the lock-up? Get somebody in."
Now they arc sensitive to all those expressionssensitive
to it. Naturally, as men feeling the responsibility of thcirofficc,
they must go there and do just such work as that, in that way.
That can only be expected of them. And when they come upon
the witness stand they reveal their weakness, do they not? They
knock their own heads together. They make themselves, as a
body of men, ridiculous, insisting that a defendant shall know
everything that was done on a particular time, shall account for
every moment of that time, shall tell it three or four times alike,
shall never waver or quiver, shall have tears or not have tears,
shall make no mistakes. But they, stripped of thcirbluc clothes
and in their citizens garb, show themselves to be only men
here, and liable to human infirmities and errors.
Now I dismiss them, without any unpleasant reflection. I will
talk about them a little later on; but I have nothing to say now
any more than this, that you must not ask of them more than
they ought to give, you must not be suipriscd that they fail even
of the standard that they set up for everybody else.
So I say to you, as a distinguished advocate in a similar cause
expressed himself to the jury: This defendant comes before
187


Classics of the Courtroom
you perlcolly satisfied that the jury is the most refreshing
prospect in the eye of accused innocence ever met in human
tribunal.
Who arc you twelve men, and how come you here? Selected
out of 150 that were drawn from the body of this county, pass-
ing die gauntlet of criticisms, questions, and objections pul
upon you by the Court or die attorneys, you arc sworn here in
this cause. Who arc you? Men. Bristol County men. Men with
hearts and men with heads and men widi souls and men with
rights. You come here in obedience to the law that we prescribe
for the orderly administration of ourcourts. You come here be-
cause, in answer to the demand, you Teel that you must render
this great service, unpleasant and trying as it may be, exhaus-
tive as arc its labors; you come here because you arc loyal men
to the State. Nay, more. You arc out of families, you come from
firesides, you arc members of households, you have wives and
daughters and sisters and you have had mothers, you recognize
the bond that unites and die flesh that plays througlioul the
household. Now bring your hearts and your homes and yourin-
tcllccts here, and let us talk to you as men, not as unmeaning
things.
The clerk swore you to the performance of your duty, and
perhaps you did not hear that oath so closely as I did. But I
heard him say, You shall well and truly try and true
deliverance make between the Commonwealdi and the defen-
dant, whom you shall have in charge.
In no ease except a capital ease is the oath framed in that
way. Whom you shall have in charge. And Lizzie Andrew
Borden, from the day when we opened this trial until diis hour,
has been in your charge, gentlemen. That is the oath you look.
And not alone with you, Mr. Foreman, or any one of you, but
with each and all of you. You have her in charge. Now has come
the time when not alone her lawyers arc to speak for her, not
alone the judges arc to watch for her protection, not alone is the
learned attorney of the Commonwealth to ask no more than he
ought to have, but the twelve men who sit here to try this ques-
188
Lizzie Harden
lion lake the woman in their charge, and the Commonwealth
says, We entrust her to you. Now that is your duty. She is not
a horse, she is not a house, she is not a parcel of land, she is not
the properly of anybody, but she is a free, intelligent, thinking,
innocent woman, in your charge.
I noticed one day, as we were proceeding with this trial, a
little scene that struck me forcibly. It was one morning as the
court was about to open, when you were coming in to your scats
and standing there, and the judges were passing to the bench to
taketheirpositions, and the defendant was asked to pass around
from tire place where she now sits in order that she might come
in so as to be near her counsel, and right at that moment of tran-
sition she stood here waiting, between die Court and the jury;
and waited, in her quietness and calmness, until it was lime for
her properly to come forward. It flashed through my mind in a
minute: There she stands, protected, watched over, kept in
charge by the judges of this court and by the jury who have her
in charge.
If the little sparrow docs not fall unnoticed to the ground, in-
deed, in Gods great providence, this woman has not been alone
in this courtroom, but ever shielded by His providence from
above, and by the sympathy and watch care of diosc who have
her to look after.
You arc trying a capital ease, a ease that involves her human
life, a verdict in which against her calls for the imposition of
but one penalty, and that is that she shall walk to her death.
You arc then to say, I will critically consider this question,
and I will make no mistake, because if I do, no power on earth
or in Heaven can right the wrong. You come here without
prejudice or bias, I lake it. You said you did. I believed you. I
believe you now. You said that though you might have read
about this transaction, you might have formed an opinion,
might have expressed an opinion, as I think some of you with
perfect honesty said, because in this intelligent age, people do
think and read and talk, and it is all right they should, but when
a man is big enough to walk up and say in answer to the ques-
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Classics of the Courtroom
lions the Chief Justice put to him, I have read and thought and
judged about it and I stand up here now and before my God and
my people say I will find a true verdict on the evidence under
the lawthat is a man we all want to see in the jury box. I would
rather see him there than to have one of these miserable pieces
of putty on whom the last man who stuck his finger into him
can make an impression.
You will need at the outset, gentlemen, to dismiss from your
minds entirelyentirelyentirelyeverything that llic press
ever said about this ease, anything that your neighbors have
ever said about it, anything that you have ever heard about it
except in this courtroom at this time. Every rumor that has run
about, every idle talc or every true talc that has been told, you
must banish from your minds absolutely and forever. Why,
gentlemen, if we were to try die ease on the street, we need not
have spent these days and you would have been enjoying your
entire freedom like the rest of us; you would not have been
prisoners yourselves. But we arc not trying the ease this way.
And so carefully, I believe, docs the Court guard it, that you
arc shut off from reading the newspapers, from having com-
munications, from indulging in conversations about the case
during the progress of the trial. What use in taking these precau-
tions if you arc all coming in with your heads brimful of what
you have heard before and will not give that up? Now every
man of you is man enough to say, when you go to die jury room
to deliberate on this thing and somebody presents an idea,
Well, that is not in this ease. You have no right to consider
any such thing. You have no more right to do it than you have
to take a knife and cut this womans throat1 mean under your
duties as prescribed by the law.
Then you coinc here patiently day after day, and you will sit
here again and again until this ease is concluded, and then
proceed with yourdclibcralions widithat calmness and fidelity
that is guaranteed in the expression of your countenances, for
"When the life of man is in debate. No time can be too
long, no care too great."
190
Lizzie Borden
Hear all, weigh all, widi caution.
Now, genUemen, it is not your business to unravel the
mystery. You arc not here to find out the solution of that
problem. You arc here not to find out who committed the mur-
ders. You arc not here to pursue something else. You arc simp-
ly and solely here to say, Is this woman defendant guilty?
That is all, and though the real criminal shall never be found,
better a million limes that than that you find a verdict against
this woman on insufficient evidence and against your human
experience and contrary to the law, so that an unhealthy ap-
petite may be satiated, and blood given that belongs to the
owner of it beyond anybodys taking. Not, who did it? Not, how
could it have been done? But, did she do it? That is all. And
you have reflected, I want to say, or it is not proven against her,
because it is held in the law, and ought to be, you have done
your whole duty, although you sit here as the Commonwealth,
including the Court and the District Attorney, if you have not
been able yet to bring that evidence with a certainty and a
reasonable construction so that you as decent men can go to
your homes and sit down and say, We have done our whole
duty. We have brought in a verdict against her, although per-
haps within a week we wish we had not, when we think of it.
Nor must you think for a moment that this defendant is set
to die business of finding out who did it. If she cannot find out
and tell you who perpetrated Uicsc acts, somebody says, Go,
hang her. She is not a detective, and the Commonwealth has
put her in a place for the last ten months so she could not be
very vigilant or active if she had all die ability in the world. She
has been in the jail of this county; she has been under constant
control of the police from the very time, from Thursday, August
4lh, as you know from all these facts, and do not ask her to do
things that arc impossible. Pray not load upon her the respon-
sibility of setting her to go when she cannot go or do when she
cannot do, or else hold her to account for it with the severest
penalty known in the law.
The Commonwealth docs not want any victim either. In the
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Classics of the Courtroom
old days (hey had sacrifices of lambs and goals, and even
human beings were offered in expiation and in sacrifice. But
we have gol all over that. We do not even bum witches now in
Massachusetts. The Commonwealth wants no victim; and so,
gentlemen, I have attempted in this way to array before you
what I consider in my own manner, the duties that lie upon you,
and the limitations under which you act.
And what is the call upon you? Why, simply to be true to
yourselves.
"To thine own self be true. And it must follow, as the
night the day, Thou const not then be false to any man."
Now, there always goes with any person the presumption of
innocence oferime. I stand here at litis moment addressing you,
and I am clad all over with that presumption of innocence of
every crime; so is each one of you. That is your bulwark; that
is bom with you, nay, rather it is given to you out of the great
consent of all the people, and you say, Guilty? Why, I think
not. I am innocent," and the Court will tell you that that started
with this prisoner on the 4lh day of August, and has been with
her by night and by day. When you had her in charge that
presumption of innocence has been in her favor, and it never
leaves her until by the verdict of a jury that presumption is over-
come and she is declared guilty. It is true that people who have
heretofore been innocent commit crime, and so the law says,
We will not demand the unreasonable and impossible thing,
but you, the defendant, shall have that presumption go with you
until it is entirely overturned, and it says that you are of a
criminal heart and criminal act.
Now, bear that in mind, if it comes to any question in the
discussion of the evidence ofa doubtful consideration, then that
presumption is all the lime in the scale. The beam of the scale
docs not stand level to start with. We say the scales of justice
hang even, but there is always with a defendant the presump-
tion of innocence that tips the scale in her favor, and the Com-
monwealth must begin and load in on the other side facts until
they shall overcome that presumption, nay. more, and over-
192
Lizzie Borden
balance the facts that the defendant shall produce.
I shall not attempt to talk to you at length about the different
kinds of evidence, direct evidence and circumstantial evidence.
The learned Court will explain those different features to you,
and the lines have been drawn as clearly in the many eases that
have been tried that it is wholly unnecessary forme to take your
time and your patience. You know, or will know, when his
Honor has uttered to you llic charge in the best way, what we
mean by direct evidence and what we mean by circumstantial
evidence. Direct evidence, testimony from actual observation
and actual knowledge, is what we very frequently rely upon,
but lliat is not always certain, I am bound to say to you, not al-
ways sure, because the man who gives the direct evidence may
be a miserable liar, and you would not believe him under oath,
unless you kept your hand on him. Now, that is direct evidence,
and then sometimes facts arc found out by circumstances. You
reason from the hearing a noise or from seeing a person in a
given place. You see a man going in somewhere, and you say,
He has gone in there for that particular business, because they
do that business there, whether it is banking or insurance or
grocery. Well, you may be right or you may be wrong. You
have given different circumstances to try to draw out a
reasonable conclusion, but I am not going to enlarge upon that,
because I deem it unnecessary, and because I have other things
in my mind which arc more important. But if you try to con-
vict anybody, or if you arc asked to convict anybody, because
you do not start in here to try to convict anybodyother people
may, but you do notif you arc asked to convict upon any
evidence, whether that is direct or circumstantial, you will, of
course, bring to it your clearest perception and your strictest
honesty, and look to see whether it fits in, whether it is all right,
and whether it has not run against this comer and that comer
and knocked itself to pieces; whether the circumstances are all
in, and whether something has not been left out; whether the
chain is not broken with which it is sought to bind the defen-
dant. Look it over, search it through and through, as I will in
the argument as I proceed, and discover whether there is any
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Classics of the Courtroom
claim that is insufficiently proved. Then, loo. the Court will tell
you that by whichever method you proceed as to this defen-
dant, the proof must come up in your minds to a moral certain-
ty, not a mathematical certainty, but a moral certainty. It must
be beyond a reasonable doubt.
Now you have sat in criminal eases before; very likely you
have had a man before you on trial who had stolen five dollars,
or something of that kind, and the same rule applies. And you
arc told that you must not convict him unless you arc satisfied
beyond a reasonable doubt. Ilis not different in this ease. In the
one ease you arc perhaps dealing with a man who will be sub-
jected to a penally of a fine, or a brief imprisonment at the most.
Mere the same rule applies, and you arc dealing with a woman
whose life is at slake, and nothing else. Now you will see that
while the rule of the law is the same in the one ease as in the
other, the magnitude of a mistake about it is not to be lightly
considered. So that when you arc asked to find these essential
facts beyond a reasonable doubt, it is not the doubt of a cur-
mudgeon who sits off in a comer, and says, I wont talk with
anybody, I am an ugly fellow, I will make myself disagreeable
in litis jury room. That is not it. That is not a reasonable doubt,
no matter which side lie is on. lie is not fit for service in the
jury room. But it is the doubt of such men as I take you to be,
with your home influences, with your church belongings, with
your business associations, with your social relations, with all
that binds you up to each of us. It is die reasonable doubt of a
reasonable man, confronted with the greatest crisis he has ever
met in the world. Yes, the greatest crisis; because, though I
doubt not some of you have worn the blue and faced the can-
non shot, though you may have heard and felt the blunders of
war, and you may have seen blood flow in streets, yet that is
one thing: thisto sit here and to have in charge this young
woman and to say upon your oaths you arc satisfied that she is
guilty or not guiltyis a duty to which very likely none of you
have ever been called and which probably you will never be
asked to perfonn again; you will go to your graves thinking of
how you pcrfomicd this task, and it ought not to be that you
194
Lizzie Borden
can have any compunctions that you made a mistake which
nobody could retrieve.
Then again, under the laws of this stale, the defendant in a
criminal ease is pcniiittcd to testify on die stand if she desires
to, but i f she docs not desire to, she can refrain from testi fying,
and then the statute says specifically and directly, no inference
shall be drawn against her from the fact that she has not tes-
tified. And so the learned District Attorney in his closing argu-
ment will not by the slightest suggestion or insinuation insult
this Court and this jury by intimating that the defendant ought
to have testified. That law was bom out of two considerations.
Formerly the defendant could not testify. Later it seemed to be
wise to give a defendant an opportunity to testify, but it says at
once, although he docs not come to the stand, you shall not take
that against him in any way. And again loo, as if in die charily
of human nature our law-givers have felt that it is loo great a
strain oftentimes to put upon a defendant to place him in such
a position that he must either go upon the stand or have dial ar-
gument made against him, that lie ought to have done it, the law
which I have cited to younot in its exact terms but in its es-
sential features and expressionswas framed in die way I have
stated. And I dismiss that again. The Court will tell you in em-
phatic and clear language, and will look you in the eye and
touching your sense of justice say to you, "Gentlemen, you
must not consider that, and you will not as you go to yonder
room undcryouroath, depart from that, because if you do, what
is the use in having scales for justice to hold or Courts for the
apparent administration of it either?"
Now I said you must leave out rumors, reports, statements
which you have heard before the trial commenced. That is true.
I repeat it: But more, you must leave out of your minds now,
absolutely every single thing that the learned gentlemen who
opened diis case, Mr. Moody, said that lie was going to prove,
unless lie has actually proved it. Now I would not like to say
that about him in private affairs. I would not be pleased to in-
timate to you that he would say anything that lie was not going
to do, because lie is the soul of honor. But he speaks for the
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Classics of the Courtroom
Commonwealth, dial is all, and Ihc Commonwealth tells him:
"You must not say anything but what you arc going to do, and
you must tell them that and that only." And 1 shall expect the
learned District Attorney to withdraw the tilings that Brother
Moody said lie was going to prove, because he has not proved
them. The courtroom ought not to echo still that utterance or
the gentleman who opened this ease, because they tend to
create a prejudice against the defendant. Now let me tell you
about that so that you will understand it; Mr. Moody said that
the Government was going to claim and prove that this defen-
dant was preparing a dangerous weapon on August the 3rd, the
day before the murders. You heard him say that. I did. He said
it. They have not proved it, have they? Was there a thing about
it in the evidence? You have heard some discussion that we
have had at the bar, because, in order that there shall be no
prejudice, you have been asked to step aside, and many of those
things which have been offered in good faith have not been
proved because the Court has said they arc not proper to be
proved in this ease. They have nothing to do with it. They will
only mislead the jury and the jury shall not hear them in this
ease. Whenever another ease arises, if these things arc pertinent
and proper, they shall be heard, but not now.
Now the Commonwealth came with the idea of putting these
things before you, I say with good intention, but the Court says
no, though your intention is good, it is not proper, and we will
not complicate this thing. It will create a bias against the
prisoner which may divert the course of justice and that shall
not be imroduced here, it has no right here, though you mean
to be right. Now there is no proof at all. Gentlemen, about any
dangerous weapon having been prepared on the 3rd of August.
And to make it more specific, Mr. Moody said in his opening
that they would prove that this young woman went out to buy
a poison on August 3rd. You have not heard any such evidence;
it is not proved, lire Court did not allow it to be proved and it
is not in llic ease. Now you will not go to the jury room with
the thought if it had been allowed, you would have considered
that it was proved. But it was not allowed, no such evidence
196
Lizzie Borden
came before you, and I shall expect the District Attorney, man
fashion, to get up and say so, and I think you will, and I shall
be disappointed in him if lie docs not. He will tell you that upon
that subject and that the ease is not touched at all. Then he said
that they were going to show you that the defendant had con-
tradicted herself under oath about these occurrences. Well,
there is another question which went to the Court and the Court
said: That is not proper in this case. You cannot show that.
And so there is not anything of the kind. Now you arc not going
to sit back there and say Well, I rather think Mr. Knowlton
and Mr. Moody would not have offered it unless there is some-
thing behind it. That is not the way to try eases. That is not the
way you hold this defendant in charge. You might just as well
have got your verdict before you started and said guilty because
she is here. You might as well say, we don't want to hear any
evidence. You do not want to say that you do not care whether
you hang her right or wronggive us somebody! Now the
Court sits here to guard you and all of us against any such mis-
take. That will not do. The Court says: "Here, Gentlemen,
decide this ease on the evidence given right here from the wit-
ness stand, and on nothing else." Why, it is not impossible that
any one of twenty oreven twelve men might not be brought up
under a like charge. But when you stand there in the box ready
to answerand somebody says to you Oh, don't mind what they
put in, about particular evidence, whether it is competent or in-
competent. You say, "No, I want my rights. I am here under
the protection of the law, and 1 call upon those twelve men,
decent men under their oaths, to stand by me and see that I am
not wronged." So you will leave those things out, Gentlemen.
No poison in this ease, no prussic acid, no preparation of a
weapon by this woman, no statement made by her under oath
in this trial or anywhere that you know anything about or have
any right to consider. I do not care what you have read.
Now we shall agree in the consideration of this case very
largely upon many tilings. My position in this case in speaking
for the defendant is not to misrepresent or distort facts, but to
lake the proofs as they arc, pul them against each other and find
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Classics of the Courtroom
out vvhal is right. This defendant wants nothing but justice and
she desires to have it in the proper administration of the law.
Things that arc not in dispute I hope 1 shall not contest. I hope
1 shall array before you the facts all together in an intelligent
and a clear way and then ask you to give me your judgment on
them by and by, and I just as sincerely trust that 1 will not even
by a single letter step over the line of the proof or deal unjust-
ly even with the Commonwealth that is really so dear to us all.
Now let us see if we cannot gel at these things in a fair way
without prejudice. Mr. Andrew J. Borden left his house and
went down street that morning, Thursday, August 4lh about
half past nine oclock, so that lie arrived at the Savings Bank,
upon the evidence, about 9:30. Me wenL into several places
along the street, not material now to consider, walked back
along South Main Street towards his house, stopped at a store
of his that was being repaired, talked with Mr. Shortslccvcs and
Mr. Mather, and after picking up an old block which he
wrapped up in a paper and look home, he started to go to his
house. You recollect something was said, that it is not now
material to consider in this connection, but lie walked along up
towards his house, arriving there, the defendant thinks, about
quarter before eleven o'clockabout 10:45. It did not vary,
probably, more than two or possibly three minutes from that
time. It must have been as much as dial, because you recollect
how Mr. Mather pul ithis looking at the clock, and the time
that Mr. Borden lingered at (he store, went upstairs, came down,
went out into the middle of the street, looked at his block, went
back and talked with Mather and Shortslccvcs a minute or two,
and then went on. It was 10:4020 minutes of elevenas lie
came up to the store. Now he probably consumed two or three
or four minutes in doing those things that they have spoken of,
and so you may well, perhaps, infer that lie reached his house
about 10:45. Now the alarm of the murders reached die police
station about 11:15, and within that lime Mr. Borden was mur-
dered. We have learned of several things that he didthat he
came into the house, sat down, went upstairs to his room, laid
down his little package, and so onwas occupied with a few
198
Lizzie Borden
things that would consume a short space of lime; so that we can
say that he was murdered somewhere within a given fifteen or
twenty minutes of time, which fairly, perhaps, may be between
five minutes of eleven and ten minutes past eleven. I presume
that the Commonwealth will not differ with me about this. At
any rale, if there is a more clear statement of it to be made, the
defendant has no objection if it lies within the proofs. That is
the way I propose to argue, to lake that as a fact. Mrs. Borden
had died earlier, on the testimony of the physicians, inspecting
the characterof the wounds, die condilionof the blood, the state
of the stomachs and the intestines, they put it from an hour to
an hour and a half earlier dian he died. That is probably cor-
rect; at any rate, no issue is made about if; and so, if I may be
permitted to stale it, she would seem to have died between 9:45
oclock and 10:15, somewhere within that half hour, taking all
the evidence into account. That answers the demands of the
physicians, and seems to me, if I may be pennitted to say it, to
accord with the facts.
Now you have those tragedies widiin dial short space of
time, in that place, and it is for us to see whether the defendant
is connected with themwhether the defendant alone or the
defendant with any confederate, if there is any proof about it,
did the deed. 1 am at a loss to know where there is any evidence
about any accomplice or anybody else connected with it at all,
and so it is only my inquiry to find out if there is any proof as
to this defendant. Of course, I need only to suggest to you that
until there is some sort of evidence dial connects somebody
with it, it is not well to assume that she must have had some-
body because you cannot think of anything else. That is not the
way to try this case.
Now it will be my endeavor in discussing these questions to
be very guarded about giving you my own opinion of the
evidence. 1 have no right to put in whatever personal weight I
may have in my construction of the evidence. That is bad prac-
tice, and I should expect if I get over the line, for the learned
Court to call me to order, because I trust I know my place. I
have no right to tell you that I believe so and so about this ease.
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Classics of the Courtroom
I may believe all I want to, but my duly is to keep it inside of
me, that is all. And so the District Attorney will do the same;
carrying his weight and his strength, his connections every way
into this ease he is not so to demean himself as to tell you that
lie believes so and so. You do not want our beliefs; we want
yours, and your judgment.
Now there sits the defendant. In yondcrcity were the crimes.
Those crimes were of the foulest and darkest kind. She comes
here under this presumption orinnoccncc. It must be overcome
absolutely, and you must bind her up to the acts before you can
say she is guilty. What is the cord that holds her to those ter-
rible criminal acts? Let us see where it is to be found. It is not
in the charge that is read in the indictment; it is not in the pro-
cedure of the court, but it must be in that chain of circumstan-
ces or in that line of direct proof that shall show you that she is
tied up to this thing, tliat she is the one, and that it is not
reasonable that anybody else did it or could have done it; that
there is no reasonable way of accounting for the things that are
proved except that she did it. That is the kind of bond that you
must frame in order to hold her, or to permit you even to think
of holding her.
If a person commits a murder like this, and we know it, we
have no occasion to inquire for what reason lie did it. If he did
it, then it docs not make any difference whether he had any mo-
tive or not. He might have done it for pure deviltry, without a
motive. He may have done it in insanity, and then thclaw comes
in in another way to intervene in his behalf. But if it is proved
proved, I say, not guessed, but proved that he did itit is not
of the slightest importance whether he had a motive or not. If
he did it, that is all there is about it. Now why is the Common-
wealth bound in this ease to attempt to show a motive for doing
it? Merely for this, gentlemen: because they say, Here are the
crimesthere arc the crimes there, there sits the defendant
you see her over there. Now in order to hold her responsible
for the crimes, we have got to bind her up to the crimes. We
have no direct evidence that puls her there; we have some cir-
cumstances that look as if she might get there; and so in order
200
Lizzie Borden
to bring her to it, we must show a reason why she would do it
what moved her to do it and dial is die motive. That is to say,
the motive in this ease is only to explain the evidence. You get
my idea, I diink. It is only to tell you how you can explain her
acts or her words. If you can explain them in a reasonable and
honorable way, then she is entided to that. But if dicy cannot
be explained except that you find a criminal thought running
through them, dicn that motive operates against her, not to
make her commit the crime, but to show you that what is said
about it is a reasonable constructionthat she was led to do it.
That is it, if I understand the case properly, and I state it just
as I believe it to bethe Court will correct me if I am wrong
and I believe I state it about as the Commonwealth attorneys
would slate it; intentionally I do; and so that motive is only to
be inquired into to help you out about the circumstances, and I
think I can explain it to youand I am guarding myself against
saying anything 1 ought not to.
Suppose the crime were committed in another place, and a
man was suspected of it, and he proved that lie was in the State
of Georgia at die time, at the very instant, and everybody knew
it. Well now, you could not bind him for doing the crime
anyway, no matter if he stood down dicrc and swore profane-
ly that if he could only get home he would have killed that man.
That would not be anydiing, because the circumstances do not
come up to it, dicy arc not connected. So you do not want his
motive to explain his acts. He hasnt any acts to explain.
Now the Government says that Miss Lizzie A. Borden has
some acts to explain, therefore they will find out whether there
is anything in her motives that will put a color on it. I think you
see dial. And they are inseparable from the conditions.
Now I say that the argument will be perhaps only this: that
you arc to look at (lie motive to see what effect you shall give
to the evidence. It will not do to say that no adequate motive is
shown and none is necessary. That is true when the crime is
proved. That is true when you have the facts. But that is not
true when you are trying to show the motive in order to explain
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Classics of the Courtroom
ihc fads.
Now [here is absolulcly (and I think (lie Commonwealth will
say it) no direct evidence against Miss Borden, the defendant.
You know what I mean. Nobody saw or heard anything or ex-
perienced anything dial connects her with the tragedies. No
weapon whatever, and no knowledge of the use of one, as to
her, has been shown. You know if you had found her with some
weapon or that kind in her control, or in her room, or with her
belongings, that would be direct evidence. But there is nothing
of that kind. It is not claimed. It is not shown that she ever used
an implement of the character that must have produced these
murders. It is not shown that she ever touched one or knew of
one or bought one or had one. In fact, the evidence is that she
didnt know where the ordinary things in the house of that kind
were.
And the murders did not tell any tales on her, either. There
was no blood on her, and blood speaks out, although it is voice-
less. It speaks out against the criminal. Not a spot on her from
her hair to her feet on dress or person anywhere. Think of it!
Think of it for an instant!
Yes, there was one drop of blood on the white skirt, as big
as the head of the smallest pin, says Prof. Wood; less than a six-
teenth of an inch in diameter; and that is every particle of blood
that was found upon her clothing. And that was not where you
would expect it to be; not in the front of the skirt, that must, if
she had-had it on and had done these foul deeds, have first come
in contact, but around back, down toward the bottom, near the
placket, as I believe the women call it, out or die way.
I do not know but the Government arc going to say that she
turned her skirt around hind side before, before she com-
menced, in order to get at it in a practical wav. I don't know
what they arc going to say yet. I shall have occasion to speak
of that by and by. But Prof. Wood docs not claim, and Dr. Dolan
docs not claim nowhe didhe docs not claim nowI dont
know as there is a Fall River policeman from the top down that
claims now dial that little (ly speck, as it were, of blood, tells
202
Lizzie Borden
any talc here. I forbear to allude to what is proved in this ease,
Miss Bordens illness, monthly illness, at that lime, and to tell
you or remind you that Prof. Wood said he would not under-
take to say that that blood was not the menstrual blood. You
know the facts. I need not give them in detail. You know enough
in your own households; you know all about it. You are men,
and human. You have your feelings about it. I am not going to
drag them up, but you must not lose sight of diese things.
Then there was some talk about a roll of burned paper in the
stove, where Mr. Philip Harrington, I believe, was the officer.
He took off the cover and saw what he said looked like the em-
bers of a rolled up piece of paper, burned. That is all. And there
was some sort of dark insinuations here floating around, they
didnt clothe themselves in wordsbut there was something
in the manner that meanly intimated that Dr. Bowen was doing
something about it. Dr. Bowen! I suppose they dont make any
allegation that he committed these murders, or helped, or
helped to cover up, or assisted in doing anything about it. When
the evidence is heard it seems that Mr. Philip Harrington says
that Dr. Bowen was throwing in some pieces of an old letter.
The letter had nothing to do with these transactions, something
about his own family matters, of no account. And Mr. Har-
ringtonI think I am right in the name of the officerwhen
they were thrown in, saw some little piece of paper, rolled up
paper, about an inch in diameter, that had been rolled up and
was lying there the embers of it, and there was a small, low fire.
Well, we thought the handle was in (here. We thought that
was the plan, that the Government possessed itself with the idea
that that handle was rolled up by the defendant in a piece of
paper and put down in there to bum, and it had all burned up
except the envelope of paper. Did you ever see such a funny,
fire in the world? What a funny lire that was! A hardwood stick
inside the newspaper, and the hardwood slick would go out
beyond recall, and the newspaper that lives forever would stay
there! What a funny idea! What a theory dial is!
And we wrestled with that proposition here, on the part of
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Classics of the Courtroom
Ihc defense, through weary nights, troubled about it, until Fleet
and Mullaly got here together, and then we were relieved from
our doubt. For the handle is in it and it is out of it. Fleet didnt
see it and Mullaly did see it. Fleet didnt take iL out of the box
and Mullaly saw him do it. And it is in the box now, and they
run over to Fall River to get it; or they wanted to, and can't get
into our house, and explain about it. So we rather think dial that
handle is still flying in the air, a poor orphan handle widiout a
hatchet, flying around somewhere. For heavens sake, get the
125 policemen of Fall River, and chase it, till Uicy can drive it
in somewhere and hitch it up to its family belongings.
Then, too, upon the best testimony of the experts, and
probably in your own common sense, whoever committed that
murdcrofMrs. Borden stood astride her body. Shcwasalargc,
stout, fleshy woman, weighing 200 pounds. Conceive of the
situation. You looked at the place. You saw the little gap be-
tween the bureau and the bed, staled to be about 30 to 34 in-
ches; and you arc to conceive of the murderer standing over
that body in this way. Mere she lies, there; and the murderer
standing over her and literally chopping her head to pieces. 1
shall have more to say about that by and by, but I call it to your
attention now. And they all agree that Mr. Borden was
butchered by somebody who stood at the head of the sofa, and
between that and the parlor door. You know how that is placed,
and we make no question about it. That looks reasonable, we
will say, and so we take the tilings as tlicy arc.
Now what reason is there for saying that this defendant is
guilty? The Commonwealth asks you to come up here and hear
all this evidence and point out whether you think she is guilty
or not. If you do not think she is, why, you say, Not guilty,
and the Commonwealth is satisfied, the District Attorney goes
away, having done his whole duty, satisfied to let it alone. He
doesnt find any fault about it, he is relieved of it. It is a great
relief to him to get rid of the ease. He doesnt enjoy it. He says,
Come up and hear all we have got against her, and let the jury
say she is not guilty, and that will slop this matter, or, if you
come up and hear it, and you say she is guilty, then that relieves
204
Lizzie Borden
me about it. I put this responsibility on you. And the Court
says, I pul this woman into your charge. Now you have got
it all.
Now what right have they to say anything about it? Well, I
want to run it through, (which I have done with some care), and
tell you why they claim that she did it.
In the first place, they say she was in the house in the
forenoon. Well, that may look to you like a very wrong place
for her to be in. But it is her own home. I suspect you have a
kind of an impression Uiat it would be a little better for her than
it would be to be out travelling the streets. I dont know where
I would want my daughter to be, at home ordinarily, or where
it would speak more for her honor and care, and reflect some-
what of credit upon me and her mother, (who is my wife, 1 want
to say), than to say that she was at home, attending to the ordi-
nary vocations oflifc, as a dutiful member of the household, as
belonging there. So I do not think there is any criminal look
about that. She was at home.
She is shown to have been upstairs to her room, the Govern-
ment says, about ten minutes before ten; and she must have
seen, as they claim, the dead body of Mrs. Borden, as she, the
defendant, went up and down the stairs.
Now let us look at that, because that is an important feature
in the ease; important for the Commonwealth, important for the
defendant. You went there and saw the situation. You know
how the stairs go up, turning around as you go up, and at the
top of the landing you arc right there at Miss Lizzies door.
When you stand at the top of the landing you cannot see into
the guest chamber, you know. It is as if you stood over there
where that officer stands, or a little further. You arc not look-
ing into the door at all. It is not like a great many houses where
you coinc up to the top and arc looking into both doors at the
same lime.
Then it is said that at a certain point on the staircase, right
on one tread of one stair, if you look in under the bed across
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Classics of the Courtroom
the floor of the guest chamber you could see any object that
was over between the bed and the bureau. And you were all
asked to do that, by travelling up and travelling downyou
remember the experience you hadand looking. And there-
fore they say that, although Miss Lizzie, when she was at her
door, as she undertook to pass down, could not see Mrs. Bor-
den over there behind the bed, that if she went downstairs she
could have seen Mrs. Borden lying there behind the bed, and
therefore that she must have seen her.
Now if we had marched you up and down the stairs and told
you nothing of what we wanted you to look at, there isnt one
of you that would have squinted under that bed, on that par-
ticular tread of the stairs. You wouldnt have thought of it. But
you were going to see if you could see, .and you were told to
look all you could and see if you could see. So you got ready
to see, made up your minds you were going to see if there was
anything to see. You have not been home for the last two weeks.
But when you get home, and after you gel over this, in two or
three weeks from now, and I meet you, I want you to tell me
where you looked when you came downstairs that morning,
and whether you looked to see what you could see at any par-
ticularstair. 1 low was it the last day you were at home? Do you
remember anything about it? What lime in the morning did you
come down? At what stair did you look to see what you could
see? Right in your own house, where nothing had happened.
Now we arc talking of a lime with regard to Miss Lizzie
when nothing had happened, when everything was all right. It
was, at that time, as to her. Now people do not go searching and
squinting and playing the detective and all that, to begin with.
I do not. If I did I should think I was a rascal some way orothcr,
and that something was happening to me. If she did dial thing,
if she was looking to see if anybody could see it, if she had
walked down and looked under and not said anything about
itthere goes the murderess, see her! She didnt see it, and she
might. Therefore she is the criminal. She did see it because she
could, and therefore she is the criminal.
206
Lizzie Borden
No, no. You and I, until we get to be too old, run up and
down stairs just as we have a mind to. They arc our stairs. We
do not ask anybodys pardon or qualify our act a particle. Then
there is not the slightest evidence that that door was open at that
lime. Remember thatthat that door was open at that time.
There is evidence that it was open later, but no evidence that it
was open before Mr. Borden came in. I am right about that, and
that is very important.
So that if, when Miss Lizzie went downstairs and went
upstairs, as she undoubtedly did during that forenoon, to her
room, if she went up and down stairs and the door was closed
or nearly closed, or stood ajar, then of course she could not see.
She had no occasion to go into that spare room, wouldnt go in
there. As you know about the habits of llic family in which she
lived, the spare room was closed up practically. Mrs. Borden
had gone there to make the bed, and after she had left it all right
undoubtedly she would push to the door. The door was pushed
to, at any rale. There is no evidence that it was wide open.
Now the Government starts out with the idea that that door
was standing right wide open, and therefore that she could see;
and I have told you how you can reason it very plainly out in
your own common experience. You wouldnt look. If she had
been lying right front of the bed, outside, why, I should have
said it would be very improbable that a passer up and down the
stairs would not have seen her, and yet that is not impossible.
You walk along the streets sometimes, possiblyI do not want
to say anything wrong about youand you meet your own wife
and dont see her, go right along. They used to tell a story about
Professor Pierce over at Cambridge, who didnt know his own
wife when he met her, and he had been spoken to so much about
it that finally he thought, to make amends, he would speak to
the first tiling he met, and that was a cow. I Ic said, Good morn-
ing. He didnt make any more mistakes. People arc not look-
ing for everything at every minute, especially if they arc
innocent. It is the guilty man that is always looking around to
sec when there is somebody round going to catch him, lay a
hand on him.
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Classics of the Courtroom
Now do nol ask her lo do things that nobody else docs. Be-
sides, you remember the testimony from Dr. Bowen and Mr.
Manning and some othersit is not necessary to state them
that the upper hall was dark when they went up there, and that
the guest chamber was dark.
You remember that in that guest chamber there are these
tight board shutters, not open blinds like this courtroom, but
tight board shutters that shut up. And you know llic New
England housewife docs nol like to have her carpet fade, and
the more they live in the old style, the more careful they arc. I
remember with some reflections about my old mother, how she
looked after the caipcts and the boys, that they didnt get the
light in. The boys wanted lo live out in the sunlight; she didnt
want her carpets there. And so the natural thing in that room in
the Borden house was lo keep the shutters shut, those tight shut-
ters. And the doctor says, they all of them say, that when they
went in it was dark, and they had lo open them so they could
see something.
Now you recollect we tried that on you over there. You mar-
ched up and down, in the first place, with die shutters all flung
open, so that that room was as light as this, or more so. Then
we shut the shutters and asked you to go up. You know the in-
stance. You can see across the street, but it is always difficult
lo look down into a well and see what is at the bottom.
Now they say further, as a reason that she is guilty, or they
claim it, that Mr. Fleet tells you Uiat Lizzie said she saw Mrs.
Borden about nine oclock, when she, meaning Mrs. Borden,
was making the bed.
Now, taking that as truethere is no contradiction of it. I
am bound to say, however, in fairness to die defendant, that it
is possible that Mr. Fleet was mistaken. But it is Of no great ac-
count, as the defense looks at this ease. Admit that, then, for
the time being, for this discussion, to be trueI do not say it
isbut just assume it. See what it comes to then. That is, Miss
Lizzie said to Mr. Fleetassume that that is a factdial as she
went downstairs or went upstairs, she saw Mrs. Borden making
208
Lizzie Borden
the bed in the spare room.
Well, what of it? What of it? True, you say. Your daughter
goes upstairs this morning to her room and she sees her modicr
in the spare room making the bed. Well, what of it? Well, they
say that she was upstairs when Mrs. Borden was making the
bed. That is true. But she was upstairs in her own house, in her
own room, at a time when the orderly woman of a house goes
to look after the morning work. It docs nol appear one way or
the oilier whedicr dicy were in conversation or not, and it does
not appear whether she went up and down stairs dial morning
two or three or more times or not. Why, you would naturally
infer, I should say, that it would be die commonest thing in the
world for this young woman to pass up and down stairs to her
room in the ordinary way of living. Why nol? Do you suppose
that your wives and daughters can tell the number of times they
went up and down stairs six months ago on a given day? Not
at all; or even the day before, unless they were very careful
about something.
Now there is no doubt at all about that in my mind, that she
did go up and down stairs. Mrs. Borden was making the bed.
That was before she had been killed, of course. And while she
was there, pursuing that work, nothing whatever except the
passing up and down is what is claimed here. Now grant it all.
Grant that she did go up and down stairs that morning about
nine oclock. Mrs. Borden was alive. It isnt claimed that she
was killed then, at that lime. But the Commonwealth under-
takes to tell you without any evidence, gentlemen, without any
evidence, that she stayed up there that forenoon, practically,
until her father came in. I say there is no evidence of it, and I
will show you that later. That she went up and down I do not
care to question. 1 should expect it. That she stayed up, no; or
that she was there, having stayed all the time until her father
came, no.
Now she told about the note, they say, and that is evidence
of guilt. She told about Mrs. Borden having a note. Now there
is considerable interest in that question and I ask your attention
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Classics of the Courtroom
lo ii. You know that after the tragedies, when Miss Lizzie was
asked about where Mrs. Borden was, site told Bridget, so
Bridget tells us, that Mrs. Borden had a note and had gone out.
I said, Who is sick? 'I dont know, she had a note this
morning, it must fie in town.
Now that is what Bridget says. Then Mrs. Churchill comes,
and she says, I said, meaning herself, I said, Where is your
mother? She said, I dont know, she has got a note to see
someone who is sick.
Next question: Listen to it.
What did Bridget tell you about Mrs. Borden having a
note? Answer: She said Mrs. Borden had a note to go and see
someone that was sick, and she was dusting the silling room,
and she hurried orr, and said she didnt tell me where she was
going, she generally docs.
Now that is what Bridget told Mrs. Churchill. You gel the
idea. Both Bridget and Lizzie had learned from Mrs. Borden
that she had had a note. Mrs. Borden had told Lizzie. Mrs. Bor-
den had told Bridget. She had given Bridget the work lo do,
washing the windows. She says lo her:
I have got a note lo go out and see someone that was sick.
That was when she was dusting in the sitting room. That is when
Bridget says it was to Mrs. Churchill. That was at the first when
there was no mistake about it. And Bridget says, She didnt
tell me, she hurried off. Now Lizzie didn't say anything about
her hurrying off; nobody says that. Bridget told it to Mrs. Chur-
chill. She hurried ofL and she, Mrs. Borden, didnt tell me,
Bridget, where she was going; she generally docs.
Now have you die slightest doubt about that? Mrs. Churchill
you saw. She was called upon three limes lo tell.that, and she
told it very clearly, and I think convincingly. Now notice the
questioning that followed:
That was what Bridget told you? Yes, sir.
210
Lizzie Borden
That was not what Lizzie told you? No, sir.
Bridget said Mrs. Borden had a note? Yes.
And she hurried oil? A. Yes, sir.
She was dusting the silling room? Yes, sir.
And Bridget says, She didnt tell me where she was going;
she generally docs? Bridget says
Bridget said that?" Yes, sir.
That was not what Lizzie said?" No, sir.
Now you have got that right, havent you, no doubt about
that? Bridget said that Mrs. Borden had a note lo go and see
someone who was sick. She was dusting in the sitting room,
she hurried off, she didnt tell me where she was going; she
generally docs.
Now my friend who opened this ease for the Commonwealth
said that Lizzie told a lie about that note, lie used that word.
I submit that that will hardly stand upon his cvidcn.ce. If he
had heard the evidence fully through, lie would not have uttered
that expression, because here you have it proved that Bridget
gave the clearest and fullest statement about this matter, and
you will probably infer from this that Lizzie learned from
Bridget that Mrs. Borden had gone out, and she had a note to
go, because Bridget tells it with exact detail, and holds it down
to herself. That is not criminal on the part of Bridget at all. I am
only calling your attention lo the directness of the testimony at
the time right on the very moment.
Now, there is not anything in the testimony that really
qualifies that at all. Miss Russell says that she heard the talk
about the note, but she did not know who told it. Now, notice
that. She got there, and Bridget was there, Lizzie there, Mrs.
Churchill there, and Miss Russell says she heard the talk about
the note, but she docs not know who told it, so that you see you
are uncertain there. Then Miss Russell tells about the conver-
sation with Dr. Bowen, and with Lizzie about the note. Listen
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Classics of the Courtroom
to it: Lizzie, do you know anything about the note your
mother had? And she hesitated and said, well, no, site didnt.
I Ic said (Dr. Bowen), 'I had looked in the waste basket, and I
think I said (that is. Miss Russell)no, he said, Have you
looked in her poekcl? And I think I said, Well, then she must
have pul it in the fire. And Lizzie said, Yes, she must have
put it in the fire.
You see that the suggestion of putting it in the fire eamc from
Miss Russell, not from Lizzie. Dr. Bowen had been searching
the waste basket.- He had looked around to see ifhc could find
the note. He did not succeed; he calls their attention to it in the
way 1 have staled, and then Miss Russell suggests that probab-
ly she burned it up, and they all assent to it, and very likely that
was true. It was not of any account. The woman had got the
note and had tossed it away, very likely threw it in the kitchen
stove and burned it, but we do not know anything about it, but
they all seemed satisfied right there on the spot. Then he said
that he had searched for itDr. Bowenit is Miss Russell tell-
ing it, and at any rate she says what was said about that was
said in the presence of Lizzie, and The same person said she
must have burned it? Ans. I think 1 answered that question,
that is, Miss Russell.
Well now, you gel nothing from the officers, merely that Mr.
Fleet learned from Miss Lizzie that Mrs. Borden had a note and
had gone out. Officer Wilson says the same thing, that she said
she had received a note, and that she thought she had gone out.
That was after the murder, and she said that Mrs. Borden had
a note and she thought she had gone out, that is, during the
forenoon she thought she had gone out. Dr. Dolan says the same
thing, so that when you come to consider it you see dial the
evidence in regard to the note comes from what was told at the
very first instant by Bridget and Lizzie, and if you believe, and
the facts here seem to warrant that, if you believe that Mrs. Bor-
den told both Lizzie and Bridget about die note, it all looks
plain. And why should it not? They were all in the family there
together, and she receives a note to go out, and she did have the
note, orclsc they both tell something that Mrs. Borden told that
212
Lizzie Borden
was not true, and we arc not going to believe dial. Taking the
evidence that comes from the living and diat drops from the
lips of the dead, you must find that Mrs. Borden did have the
note, and that she told the two women about it, and hurried off,
as diey thought, and did not tell Bridget or either one of them
where she was going. It was not of any great account probab-
ly. She got a note to go out to see a woman, and did go out as
far as we leam to the contrary. It was a natural and ordinary
thing, and the note was tossed away and thrown in the fire. It
was not a bank note to be kept, but a little scrap of paper probab-
ly indicating what was wanted.
Now, a person may say, Where is the note? Well, we
would be very glad to see i t, very glad. They looked after it and
they could not find it. The construction of Miss Russell was
that she had burned it up. Very likely that was it. They say that
nobody has come forward to say that she sent it. That is true.
You will find men now living perhaps in this county who do
not know this trial is going on, do not know anything about it,
do not pay much attention to it; they are about their own busi-
ness; do not consider it of any consequence.
And after a lawsuit is over, it very often happens in every
courtroom that someone will come forward and say, Well, if
I had really known that that question was in dispute, I could
have told you all about it. Bless his dear heart, why didn't he
come out of the cellar so we could see him? Well, sometimes,
people dont want to have anything to do with it; they dont
want to get into the courtroom, even if a life is in danger
women especially; they have a dread of all sorts of things. The
note may have been a part of the scheme in regard to Mrs. Bor-
den. It may have got there through foul means and with a
criminal purpose. We dont know anything about it. But that a
note came there on this evidence you cannot question. That Liz-
zie lied about it is a wrongful aspersion, bom out of the ig-
norance of the facts as they were to be developed in this ease,
not with a purpose to wrong her, but misstating the evidence as
we all do when we do not know quite what is comingreally
anticipating something that is not proven. So I say that it is not
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Classics of the Courtroom
true that Lizzie told a lie about it. Ir she did, Bridget did the
same, and I would not say that for a minute. There is nothing
to connect Bridget with this transaction. See how quickly you
would suspect anybody because you gel them underpressure.
Now look at it. Suppose that Bridget were suspected of this
crime and Mrs. Churchill came forward and told that Bridget
said these very words that I readhow quick some people
would be to sayOh, Bridget did it; she did it because she
told a lie about that note. Do you see it? It is plain, it is a
demonstration. Now I dismiss it with the remark that nobody
thinks that Bridget Sullivan had anything to do with this crime
at all. Lizzie docs not think so, because she has said so openly.
Now she told about her visit out to the bam; went out in the
yardsome twenty or thirty minutes. Now remember that we
get this information in regard to the time from the police of-
ficers. The others tell us that she said she went to the yard and
the bam. It takes Assistant Marshal Fleet here to tell us about
the thirty minutesthirty minutes. You see him. You sec the
set oT that moustache and the firmness of those lips and the dis-
tinction that he wrought here in the courtroom telling that story.
And there he was, up in this young womans room in the after-
noon, attended with some other officers, plying her with all
sorts of questions in a pretty direct and peremptory way, saying
to her, You said thirty minutes, and now you say twenty
minutes; which way will you have it?" Is that the way for an
officcrofthc law to deal with a woman in hcrown house? What
would you do with a manI dont care iflic had blue on him
that got into your house and was talking to your wife or your
daughter in that way? You would so just what Marshal Hilliard
did with Caldwellget him out. That is the way to do. Recol-
lect that this was after the tragedies; this was when the terrible
pall was over that house and the neighborhood, and an officer
should be pretty careful. Recollect that the air was full of
policemen at that time: they were running in all over that house,
putting her to every possible strain, asking her in her loneliness,
her absence from any friend, her sister gonefollowing hcrup
in this way. insinuating in that way and talking to her as if she
214
Lizzie Borden
were a liar. Well, I can tell the tmth and behave pretty well if
a man treats me decently, but I want to get him out if he talks
to me as a liar to begin with.
Now she told about her visit to the bam, and they undertake
to tell you that she did not go out to the bam. Now let us see
about it. They say that is another lie. We have got so we know
what the small words in the English language mean in the idea
of the Commonwealth. We can get rid of three letters pretty
quick, but you cannot dispose of the facts. Now lets see about
that. Did she go to the yard or the bam? She told them she did,
and they bring it in here and they say she could not have gone
to the yard or the bam. Now let us see whether she did or not.
If she did go out to the yard or the bam, then she was there,
upon her own showing at the time when the murdcrof her father
was committed. You see that. That will end the ease if you see
it. Now Bridget Sullivan said, I went right over to Dr.
Bowens, and when I came back I asked her, Miss Lizzie,
where was you? I says, Didnt I leave the screen door
hooked? She says, I was out in the back yard and heard a groan
and came in, and the screen door was wide open."
Now that is what Lizzie told Bridget right off. I am going to
talk about going to the bam, and by and by talk about the
groantake them separately. Now she says that she went out
into the yard, you understand. What did they have in the yard?
Pear trees. That is the evidence, and the evidence that in the
partially digested contents of the stomachs, pear skins were
found. Bridget says Mr. Borden had been out and had brought
in a basket of pears, and they had those in abundance. You saw
the trees; the neighbors saw the trees; Patrick McGowan saw
them and got up on one of them and helped himself. We know
that; there is no lie about that. This was an August morning,
and it appeared that before this lime Lizzie had been ironing
had been around the kitchen trying to iron some handkerchiefs.
No doubt about that. She had been in and out about her work.
She tells us she had been out in the yard. That was true, we will
say, upon that statement.


Classics of the Courtroom
Now Dr. Bowen said, Where have you been? Her reply
was, In the bam, looking Tor some irons, oriron. Now both
can be reasonably true, cant they? She could not get into the
bam unless she went into the yard, naturally, and that she
should slop there by the trees five or ten minutes is perfectly
consistent. Does that look unreasonable? Do you not see
families out in the yard, strolling about in yourown yards, stop-
ping under the trees, sitting under the trees, especially when
they have a right to have a little leisure?
Mrs. Churchill says, I stepped inside the screen door and
she was sitting on the second stair, at the right or the door. I put
my right hand on her arm and said, Oh, Lizzie. I then said,
Where is your rather? She said, In die sitting room. And I
said, Where were you when it happened? And she said, I
went to the bam to get a piece ofiron. Miss Russell says, She
told us about going to llic bam. She said she went to the bam.
She told us when she came in she saw her father, and he was
killed.
"Q. Did she say anything about what she went to the bam
for? A. Not until I asked her.
"Q. State what you asked her and what she replied? A. I said,
What did you go to the bam for, Lizzie? and she said, I went
to get a piece of tin or iron to fix my screen.
Q. Did she refer to any screen in particular, or simply my
screen? A. My screen.
Now Mr. Fleet told us that she went into the dining room;
she said that her father lay down, and that she went out in the
bam; and lie brings in the half hourhe is the only one that
docs. And then he goes there and talks to her about it, as to
whether she means a half houror twenty minutes. Nowjustlis-
len to this man. Recollect when this was-Thursday afternoon.
Recollect he is the same man dial said Dr. Bowen was holding
the door on himholding the fort. Think of it. And Mrs. Hol-
mes and Dr. Bowen and Miss Russell tell you, and Wilson, the
officer who went with him, comes right up here and says there
216
Lizzie Borden
was not the slightest resistance; dial he knocked at the door,
and just as soon as Dr. Bowen could ask diem ifdicy were ready
to have the officers come inand I am sure that was perfeedy
properthey were admitted without any trouble. Now ihisman
Reel was troubled, and lie was a-sccnt for a job. He was fer-
reting out a crime. He had a theory. He was a detective. And
so he says, You said this morning you were up in the bam for
half an hour. Will you say that now? I think the man was im-
pertinentI beg your pardon, the defendant diinks he was;
thinks he was impertinent. She said, I do not say half an hour,
I say twenty minutes to half an hour. Well, we will call it
twenty minutes then. Much obliged to him. He was ready to
call it twenty minutes, was he? What a favor that was! Now
Lizzie has some sense of her own, and she says, I say from
twenty minutes to half an hour, sir. He had not awed her into
silence. She still breathed, although he was dicrc. Think about
a woman saying something or doing something in die presence
of a man who talks that way to her under those circumstances.
Mr. Harrington stales diat she said to him that she was there
about twenty minutes. He asks her whether she would not have
heard the opening or closing of the door. Why not? You were
but a short distance, and you would have heard the noise if any
was made. But Bridget said she did not hear the screen door
shut at all, and she said she would not hear it in her room, and
never heard it when it shut unless somebody slammed it or was
careless about it. You remember that. Now you see there is no
inference to be drawn from the fact that Miss Lizzie did not
hear it when she was in the bam, or in the yard, for that matter.
And you recollect how the side door stands with reference to
the yard: That when a person is out around the corner under the
pear trees, even under the first pear tree that stood from the
south door to the bam, he cannot see up to that door because of
that jog. So that if she was even out under that pear tree,
anybody could have passed in or out that side door without her
seeing himmuch more if she were in the bam, either upstairs
or downstairs. Wilson has told us that she said twenty minutes
217


Classics of the Courtroom
lo half an hour. lie was llicrc willi Fleet. Medley says she
said she was upstairs in the bamI am nol positive as to the
stairs part; she was up in the bam.
Now take that; is llicrc anything unnatural or improbable in
her going to the bam for anything she wanted? She was, you
will say, a person who was free to go about and did go about,
and went in the natural call of tilings that she was going lo do.
You have heard talk about the party at Marion, and you know
where it is belter than I do, but I suspect from what has been
said about it that it is somewhere near the water and where fish
swim, and it would not be strange if a party of women were
going there, they would try to catch something1 mean fish;
and when they got there they would want something to catch
fish with. Perhaps they do; that is the way we bob around for
fish up in the country. We dont have much lo do with sea fish,
but isnt that common? She said she wanted some lead for
sinkers. She also said she wanted something lo fix the screen.
Perhaps she had both things in her mind. It is perfectly natural.
She wanted a piece of tin or iron to fix the screen. If she had
set out lo be this arch criminal dial they claim, she would have
had it all set down in her mind so that she would tell it every
time just the same, line for line and dot for dot.
They say a story is true because told all times alike, but those
of us that have dealings with witnesses in Court know that wit-
nesses who tell the truth often have slight variations in their
stories and we have learned to suspect the ones that get off their
testimony like parrots, as if they had learned it by heart. Honest
people arc not particular about punctuation and prepositions all
the lime.
Now did she go lo the bam? She says she did and her state-
ment is entitled lo credit as she gave it on the spot, tile moment
when Bridget was upstairs and might know about it. Did she
go to the bam? Well, we find she didfind it by independent,
outside witnesses, thanks to somebody who saw her. Possibly
this life of hers is saved by the observation of a passer on the
street. There comes along a peddler, an ice cream man known
218
Lizzie Borden
to everybody in Fall River. lie is not a distinguished lawyer, or
a great minister or a successful doctor. He is only an ice cream
peddler, but he knows what an oath is, and he tells the truth
about it, and he says he passed down that street thal morning
and as he passed right along it was at a time when he says he
saw a womannot Bridget Sullivan, whom he knewcoming
along, walking slowly around that comer just before she would
ascend those side steps. Now there was no oilier woman alive
in that house except Bridget and Lizzie at dial lime. He knew
it was nol Bridget by the best of instinct, because lie had sold
her ice cream and he knew her. He says it was the other woman
whom I had never sold ice cream to. Recollect that was Lizzie
or some stranger in the yard. You will say undoubtedly it was
Lizzie as she came back from the bam. It may be asked why
did he look in? I say because anyone might do sothey say
Lizzie must have looked under the bed; I say Lobinsky must
have looked into the yard. He was an enterprising young man,
he was looking for business because he had sold ice cream there
before and therefore lie noticed the yard. Now is that something
he remembers today and comes up here to tell about or anybody
has bought him lo tell about? Nobody will make that insinua-
tion in regard to the defendant. Was he got to tell it? Let us see.
He told it the 8lh of AugusL lo the police and they had it all in
their possession. Now, that is not a yam made up for the oc-
casion at all, and the only sort of conflict about it is attempted
in this way, not to dispute it, but to admit or say that Mr.
Lobinsky is mistaken about a half hour of time. Mr. Mullaly is
one of the knights of the handle, you know. You know who he
is. Mr. MullalyMr. Mullaly comes with a book and it is
thrown down here on the table with a great display to us for us
lo pick it up and with something written in it. It is nol competent
evidence and has no business on the table, because it might be
lost and carried away, and it should bebut Mr. Mullaly says
that on the 8th of August he had a talk with Mr. Lobinsky and
Mr. Lobinsky told him it was half past ten oclock. Now if Mr.
Lobinsky went by thal yard at half past ten, he did not see Miss
Lizzie go to the bam. Is Mr. Mullaly mistaken or is lie biased
219


Classics of the Courtroom
trying to work up the ease? I Ic had to slay in die courtroom
until the other fellow was heard, to hold him. We had tiic twins
here; they did not look alike. We kept them here. That is Mr.
Mullaly. Now you arc going to say. Gentlemen, whether you
believe Mr. Lobinsky who stands uncontradiclcd and un-
disputed, or believe another man who is fully contradicted by
a man with him who was his own associate on the police force.
Now, Mr. Foreman and gentlemen, the Government knew
where Mr. Lobinsky was, and that was at die shop of Mr.
Wilkinson. They knew where he was. And they knew too that
Lobinskys horse was kept at Mr. Gardners stable on Second
Street, comer of Rodman, and they could have found whether
Lobinsky had left the stable at eleven oclock or half past ten.
But we have not troubled them to do that. Mr. Gardner who
owns die stable has told his own story', and has he not told you
that Lobinskys statement is correct, diat he did not leave the
stable until after eleven oclock? He testified dial that was be-
cause other teams were to be hitched up to go ahead of
Lobinsky, and lie was late so dial lie did not gel away until
eleven or five minutes past eleven oclock. My friend
Knowlton in cross-examining him wanted to know whether he
told die lime on his watch by the long hand or the short hand.
But that is all right. It is good practice, but it is no test. Gardner
remembers it and fixes it even if Lobinsky did not have that
watch. He tells us what time he left and the lime he was pass-
ing by the yard on Second Street, and dicn we have Mr.
Ncwhall, a man from Worcester, who happened to be there. He
comes here and tells you dial he passed along that street and lie
fixes the lime by the hour that lie went to the bank and die places
where he was that morning, and you have those dirce men that
hold it down to the time I refer to, that is, half past ten oclock.
Is it not fair to say that Mr. Mullaly mistaken, to say the least?
Then if they want to find anything more about it, we land Mr.
Douglass in this case, who was there at the time in Fall River,
having a horse. They knew about it and they could have proved
about it, and they know it was as we say and yet they did not
try to prove it. Gentlemen, as you lake eases in court, carcful-
220
Lizzie Borden
ly weighing the evidence, would not you say that Lobinsky
went there at the time he states, and that the two others passed
along that street, and that he saw Miss Lizzie going into the
house? If that is true, dicn the Commonwealth must take back
the charge that she lied about going to the bam, and if she did
not lie but told the truth about going to the bam, she was out of
the house at the very time when the slayer murdered Mr. Bor-
den.
One other thought, as you remember, that Lubinsky saw
Manning as he was going down, and I think Gardner and
Newhall also; and you know when Manning got there to the
house all about it, so that you see it is confirmed again in another
way. Then they have opportunity to find out by Mr. Wilkinson
whether this man was really late that day or not, and as they
have not told us anything to the contrary, we will assume that
that is proved.
Now the District Attorney brought out the fact from Mrs.
Bowen that when Lizzie sat dicrc in the kitchen her hands were
while and she was pale and distressed, as you know from the *
other witnesses. And I suppose from that he is going to argue
to you that she was not all covered up with rust and dust that
she got in the bam. Well, you will see the strength of that ar-
gument and think what it amounts to. Think whether she could
not go up there and look. Whether she picked up anything there
or not nobody knows; I dont know how he can tell that she was
fumbling around with dusty iron and lead. There is no evidence
here about it, and I have seen many a young woman, and I
presume most of them could walk out into the bam and come
back without gelling their hands dirty. So I will not slop long
about that.
Bridget told about the groan and Mullaly told about the
scraping, speaking ofher statements, but there is nothing else.
Whether she said that or not we dont know. And if she did, it
was nothing more than the statement that all of us arc likely to
make. When a thing has happened we imagine that we heard
something; if it had not happened, we should not have heard
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Classics of the Courtroom
anything. I low common that is. Then there were noises not con-
nected witli this tragedy which might actually have been
heardthere arc noises in that street; you were there long
enough to find out about that; such noises arc a common oc-
currence. 7 hen it may be that the people in their excitement
Bridget in great excitement, because she was running about
breathless to find out something, and Mullaly in the breathless-
ness of his zeal may have got it wrongmay not have got it
just right. It is not a serious matter. They may argue it for all it
is worth on the pail of the Commonwealth.
She thought she heard Mrs. Borden come in. They undoub-
tedly will make something out of that, so I want your attention
there to see about that. This comes now in the first place from
Bridget Sullivan. She is asked, after detailing the circumstan-
ces to a certain point, What happened then? You recollect
that Bridget had told Mrs. Churchill that Mrs. Borden had a
note and had gone outhurried off; didnt tell me where she
was going. So you see anything from Bridget about that note
and about Mrs. Bordens coming in is all sustained. Now
Bridget Sullivan says, in answer to the question, What hap-
pened then?" Oh, I says, Lizzie, if I knew where Mrs.
Whiteheads was, I would go and see if Mrs. Borden was there
and tell her that Mr. Borden was very sick. You see die con-
firmation about that note business right there, right off. What
should she say that she should go and see Mrs. Whitehead for
if Mrs. Borden was there, unless she (Bridget) knew that Mrs.
Borden had a note, and supposed she had gone out, as they both
did? Then Lizzie said, "Maggie, I am almost positive I heard
her coming in, and wont you go upstairs and see? Bridget
said, I am not going upstairs alone. Now, following the tes-
timony down, the very next question is;
Before that time that she said that, had you been upstairs?
A. No, sir. 1 had been upstairs after sheets for Dr. Bowen."
Now remember how that occurred. When Dr. Bowen came
lie wanted a sheet to cover up the body of Mr. Borden, and he
called upon Bridget and Mrs. Churchill to get one. They went
222
Lizzie Borden
into the sitting room and took the key off the mantel and went
up the back stairs (where you went), unlocked the doorto Mrs.
Borden's room, got the sheets and came down the back way.
So Bridget had been up the back stairs to that room, but she had
not been up the front stai rs. Therefore when they got downstairs
with the sheets, Bridget and Mrs. Churchill knew that Mrs. Bor-
den was not in her own room because they had been up there.
Therefore they knew dial she was not in die back part of the
house, and Lizzie knew that she was not in the back part of the
house because they went up to get the sheets into Mrs. Bordens
room. See how plain that is when you look at the testimony,
and it is brought out plainly in the testimony here in the ques-
tions that are asked by the Commonwealth. So you see that
when Lizzie spoke about going upstairs to see if Mrs. Borden
was in, Lizzie meant the front stairs, because they all knew
the three of themthat Mrs. Borden was not in her own room
and that if she was anywhere in the house, she must be in the
front part of the house.
So Lizzie knew that Mrs. Borden had had a note and had
gone out, and Bridget knew that she had a note and had gone
out, as they both believed; that she had seen her up in the room
making the bed and finishing up before 9 oclock and she had
not seen her since, believing that she had gone out, and she
recalled that she might have heard her come in before her father
came back, before Mr. Borden did, and she said at once, Go
up and see if Mrs. Borden isnt up in her room. Mrs. Borden
isnt here. I heard a noise as though she came in, and she must
be upstairs in the front room somewhere. Go and see. Now,
that is natural. They thought she was in the upper and back part
of the house, and there can be no doubt about that because Miss
Russell testifies to the same tiling, Mrs. Churchill docs, Bridget
Sullivan docs, and then after they came down there it was that
conversation about going to Mrs. Whiteheads occurred.
Q. What happened then? A. Oh, 1 says, Lizzie, if I knew
where Mrs. Whiteheads was, I would go and see if Mrs. Bor-
den was there. I'hosc two women were acting in perfect good
faith about it, relying upon the truth of that note story which
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Classics of the Courtroom
Mrs. Borden had told them. Then Bridget would not go up the
front stairs because in order to go up the front stairs, they must
necessarily pass through the silling room where Mr. Bordens
dead body was lying, or else they must pass through the dining
room way and go by the comer of the room. They went that
way, and found Mrs. Borden was killed. Mrs. Churchill and
Miss Russell tell precisely the same thing in substance about
going up and finding Mrs. Borden.
Now, die suggestion on the part of the Commonwealth
would be i f this evidence was not so clear, that Lizzie knew she
was up there, and if you assume Lizzie had killed her, then, of
course, it would be quite plain that she knew where she was,
but if you do not presume the defendant guilty to begin with, it
shows nothing until she is proved guilty. Then we have no dif-
ficulty with the statement of these three women. They define it
and make it very plain.
Mr. Borden, you will remember, came in, as 1 have said,
about quarter of eleven oclock. Now, the inference that Mrs.
Borden had come in was the most natural thing in the world.
Hearing some noise in the house, perhaps the shutting of a
doorby and by we will say something about who might have
shut itperhaps the movement of somebody else in that house
that she heardshe had no occasion to go to look and see; she
was not called lo, and her father came in, and, as Mrs. Borden
had not appeared in the silting room, you understand, and as
the two women going upstairs found she was not in the back
room upstairs, they would undoubtedly think if she had come
in she was in the front part of the house, and then she recalled,
as she thought she did, die fact, that she had heard a noise which
indicated to her that Mrs. Borden had come in.
Now I submit lo you, gentlemen, that taking the testimony
as it is here, and there is no other that I know of, it exactly and
clearly gives the situation as it was, and just as they all acted.
Then they say that she showed no feeling when her step-
mother was lying dead on the guest room floor; that she laughed
on the stairs. Well. Bridget said somcdiing about opening the
224
Lizzie Borden
door. She said she said, Oh, pshaw, and she said it in such a
way that Lizzie laughed, standing somewhere at her room door,
a room where she could not see into the guest chamber, and the
door of which, so far as we know, was closed. Nobody knows
anything about it. What was there then why she should not
laugh? Oh, they say, she had murdered her stepmother. Oh,
hold on. That is not proved yet. You might think that every-
thing was all right in your house, and somebody cracks a joke
on you and you laugh, but if the evidence should turn out that
your son had fallen dead on the floor above, dial docs not war-
rant the conclusion that you were laughing when his dead body
was lying on the floor, because you did not know it. They say,
she knew it. Well then, I should agree if she knew it and was
laughing and joking about what Bridget said that she should be
blamed, and we would criticize her and condemn her, but they
have not any evidence of it. They assume it, and the District
Attorney opened it, that while llic dead body of Mrs. Borden
was lying in the guest chamber Lizzie laughed. Well, the in-
ference was dial she had murdered her and then laughed; but
that is assuming what they have not proved. They say she did
not look at her dead father. Well, she had looked at him with
horror. She had come in from the outside into die back hallway
and had come into the kitchen, and the door stood a little ajar,
and she started lo go into the silling room when this horrible
sight met her gaze. She had seen her father. Did they ask her to
go and wring her heart over the remains that were mutilated al-
most beyond recognition? And because she did not rush into
the sitting room and stand over against that muti latcd body, they
say she is guilty. Why, Mrs. Churchill and Bridget Sullivan and
Miss Russell could not pass through there except dicy touched
the comer after die body was covered. Let us ask of other in-
nocent people the same tiling that you would ask of Lizzie.
They say that Miss Lizzie did not show any signs of fear, but
that Dr. Bowen and Mr. Sawyer were afraid. They told you
about it. Well, how do they know she did not show any signs
of fear? Why do they make any such statement as that? Because
she said lo Bridget, You must go and get somebody, for I cant
225


Classics of the Courtroom
slay in this house alone. Is nol that a cry of distress? Go and
get somebody. Go to Dr. Bowens house. Go for Alice Russell.
Go somewhere. I can't be alone. Look at things in a natural
and easy way, in a common-sense way, assuming her in-
nocence and nol assuming her guilt. That is the way you will
meet these things and all of these facts.
Then they start off on another tack, .and they say she killed
her stepmother and her father because that was a house without
any comforts in it. Well, gentlemen, I hope you all live in abet-
ter way than the Borden family lived, so far as having good fur-
niture and conveniences. Arc your houses all warmed with
steam? Do you have carpets on every one of your floors, stairs
and all? Do you have pictures and pianos and a library, and all
conveniences and luxury? Do you? Well, I congratulate you if
you do. This is not a down-trodden people. There arc lots of
comforts in our country homes. I know something of them, but
I remember back in my boyhood we did nol have gas and run-
ning water in every room. We were not brought up that way.
We did not have such things as you saw in the Borden house.
It was not in poverty-stricken, desolate quarters like a shanty
where the folks simply live and breathe and do not cat anything.
They paraded here the bill oT fare for breakfast. 1 do not know
what they arc going to talk about, what sort of breakfast the or-
dinary country people have in their houses. They do not live as
well as we do in hotels, perhaps they live better. I do not wish
to say a word against the hotel, but perhaps a coarser fare is as
good as the fixed up notions that we get on the hotel table, but
at any rate, it is the way people live in our towns and cities, and
no considerable numberof people have come to harm. Andrew
Borden was a simple man, an old fashioned man. He did not
dress himself up with jewelry. He carried a silver watch. He
was a plain man of the everyday sort of fifty years ago. He was
living alone in dial way. His daughters were brought up with
him. They had become connected with prominent things in Fall
River, for they lived at home; they had the diings which you
saw about them. You all know well enough dicy were nol poor-
ly supplied, and were not pinched and were not starved into
226
Lizzie Borden
doing this thing. Do you think it looked as if they were starved
into the crime and pinched into wrong? Here was a young
woman with property of her own. Starved to death, they say;
pinched so she could not live, wrought up to frenzy and mad-
ness so that she would murder her own father for the want of
things, and yet, as has been shown here, worth in her own right
of money and personal property from four to five Uiousand dol-
lars, owning also real estate in common with her sister there in
Fall River. What is the use of talking about that? Did she want
any more to live on in comfort? Do they say she wanted to get
her fathers property, or a half of it? Do they reason that she
went and killed the stepmother first so that when the property
came by inheritance it would pass to herself and her sister?
They must say something. They say she killed her stepmother
because of trouble. That is one of the arguments about which I
will speak by and by; but then there is no trouble with her father
as they see, and then she had a change of purpose, or she had
a double purposeto kill Mrs. Borden because she did nollikc
her, and to kill her father because she liked him but she wanted
his money. What sort of a compound arc you making out of this
defendant by any such argument as that?two motives run-
ning through it inconsistent with each oilier, each directed in-
dependently to a specific end; carried out as to one in the early
part of the morning, and then not only changed her dress and
cleaned herself and became another woman, but found herself
inhabitalcd with a distinct motive, and then slaughtered her
father.
Sometimes when a young man goes on a rig and becomes
dissolute and a spendthrift, he will do almost anything to
retrieve what he calls the misfortunes that lie has brought even
upon himself, and many an old father has found the gray hairs
in his head multiplied because of the waywardness of his boy.
Sometimes these great crimes are committed in that way, but
if you expect to find in this ease that a young woman like her
was slaughtering her father, when she herself was moral, and
upright and Christian, and charitable, and devoted to good
things in this world, you will find something that the books have
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Classics of ilia Courtroom
never recorded, and which will he a greater mystery than the
murder itself.
They tell us about the ill-feelings. Well, gentlemen, I am
going to consider that in a very few words, because I say to you
that the Government has made a lamentable failure on that
question. They say that is the motive that so qualifies the dif-
ferent acts that arc testified to here that it puts this defendant in
close connection with thcmurdcrof Mrs. Borden, and then they
say that Mrs. Borden being murdered, Lizzie murdered Mr.
Borden Tor his property, or possibly, they may say, murdered
him to conceal her crimefor that or some oilier reason, but it
docs not rest at all on this foundation oT family relations. Let
us see what there is in it. What have they proved? They have
proved that from five or six years ago Lizzie did not call Mrs.
Borden Mother. Lizzie is now a woman of thirty-two or thir-
ty-three years old, thirty-two when these crimes were com-
mitted. Mrs. Borden was her stepmother; she was not her own
mother. It is line that Mrs. Borden came there when Lizzie was
a little child of two or three years, and sometimes we see that
where a stepmother has conic into a family and has brought up
a family, the children know no difference and always call her
Mother just the same. That is true in a very large degree, hap-
pily so too, but sometimes when the children get grown up and
when they arc told about their mother that died long ago, some
how or other there springs up in the mind of the children a
yearning or a longing to know of the parent that they really had,
and how many a man says in speaking of die family from which
he came, She is not my mother. lie calls her mother, per-
haps. lie introduces her as my modicr," but die first words
after you engage him in conversation arc, She is not my
mother; she is my stepmother. My own modicr died long ago.
She lies buried twenty-five years, but still she was my mother.
1 suspect that never a man never lets into die inner chambers
ofhis heart the feeling that anybody else in the world can stand
where his own mother did. You may close it over, you may talk
about it as much as you will, but happy is the man that remem-
bers his modicr, that pure mother that lived to see him grow up,
228
Lizzie Borden
and kind as anybody else may be, there never goes out of his
heart the feeling for that dead one dial is gone, that stood first
and foremost with him and nursed him in his babyhood. It docs
not require passion or ill will to hold that feeling, begotten in
the heart. Show me not the man that docs not stand for the
reputation and character of his mother, for nobody forgets that
his own mother was the one he first was interested in, although
he from a prattling child has never known her to remember her.
Now, says Mr. Fleet, in his emphatic police manner, Miss
Lizzie said to him, She is not my mother; she is my step-
mother. Perhaps she did. We will assume she said it, but there
is nothing criminal about it, or nothing that indicates it, or noth-
ing that savors of a murderous purpose, is there? Why, Martha
Chagnon, a very well looking litdc girl that was here a day or
two ago, stepped on the stand and began to talk about Mrs.
Chagnon as her stepmother. Well, I advised the City Marshal
to put a cordon around that house so that there will not be
another murder there. Right here in your presence she spoke of
her stepmother, and a good looking woman came on the stand
afterwards, and I believe the blood of neither of them has been
spilled since that lime. Why, Lizziewho undoubtedly speaks
in just that positive wayyou saw, when the police asked her
about where she was and what she was doing, spoke positive-
ly. There are a good many people living in New England who
will do the same. They know when they arc insulted, and arc
free in expressing their minds, and sometimes do so too freely
and talk too much, but we never think they arc going to mur-
der anyone. Now, you have got the whole thing right there in
that statement, as they call it. Now, they say that Mrs. Gifford
told us this. It was told on the stand. Let us have it for all it is
worth. She is the cloak maker, you remember. I do not discredit
her. Dont say mother to me. She is a mean, good for noth-
ing thing. I said, Oil, Lizzie, you dont mean that? And she
said, Yes, I do. I dont have much to do with her. I slay in my
room most of llic time. And I said, You come down to your
meals, dont you? And she said, Yes, but we dont cal with
them if we can help it. That is the whole of it. T hat was a year
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ago Iasi March. Now, my learned friend who opened the ease
said that Mrs. Gifford would say that she haled her, so my
friend, the Dislrici Allomcy, who makes the argument, will
take out that, will admit she did not say any such thing. You
heard her story on the stand here, and that was not so.
Now, l agree with you right off that that is not a good way
to talk. I agree with you that Lizzie A. Borden is not a saint,
and, saving your presence, 1 have some doubts whether all of
you arc saints; that is to say whether you really never speak
hurriedly or impatiently. I hope that is so for the peace of your
families, but I do know good looking men, just as good look-
ing as you, if you will allow me to say it, that speak sometimes
in their households a little bit hastily and quickly, and some-
times the daughters do. and sometimes llic fathers and mothers
do. It is to be regretted that they do, but they will. And yet we
dont read of murders in those houses. There is nothing to in-
dicate any deep-seated feeling. You will hear people speak to
each other on die street in such a way that if you thought it real-
ly amounted to anything, it would shock you.
Now, is there anything bad about this ease where a woman
like this defendant who speaks out openly and frankly and says
right out, She is not my mother; she is my stepmother." She
spoke so about the man who was called a Portuguese. What did
she say? Me is not a Portuguese; he is a Swede," in just the
same lone of voice. That is her way of speaking, you will on
this testimony, and she speaks right out. Now, those people arc
not the ones who do the harm in this world. The ones who do
harm arc like the dog that docs not make any noise about it.
The dog that comes round to your heels and barks is not the
one that bites. It is the one that slays inside and looks serious,
you will find. So it is with individuals. It is not die outspoken,
blunt and hearty that arc to be heard about it that do the injury.
But now I do not want to trouble myself about it. That is one
single declaration, and that is all that the Government has
shown with Bridget Sullivan who lived in that family two years
and nine months, who was nearer to all of diem than anybody
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Lizzie Borden
else. She tells you the condition of the household. She says
though brought in constant contact with them she never heard
anything out of the way. There was no quarreling, everything
seemed cordial among them. The girls did not always go to the
table; they were often out late and I suppose they did not get
down to breakfast as early as the old folks. The longer ago you
were bom, the earlier you will probably rise now. If you were
bom seventy years ago, you will probably be up in the morn-
ing by four oclock and be disposed to find fault widt the
Creator that it cannot be summer all the time with more light
and longer days. But die girls did not come down until they
wanted to. They had a right to do dial. Bridget says she never
heard a word of complaint. And mark you that Thursday morn-
ing on which they tell you that Lizzie was entertaining dial pur-
pose or plan to murder both these peoplethat is dicir theory
and is what they will undertake to satisfy you ofthat Lizzie
was talking with Mrs. Borden. Bridget Sullivan says, I heard
them talking together calmly, without the least trouble, every-
thing all right. Mr. Borden talks about the meal and the con-
versation goes on in the usual way without the slightest
indication of any ill feeling. That is the way my people do at
home. That is the way your family greets you, in ordinary con-
versation. They are wailing for you to come back just now, and
they will meet you in the same way I know, and there will be
no suspicion about it.
Oh, Utcy say, just look at herwretch and fiend and villain
that she was, she could put all this on when she had terrors
unimaginable in her heart and purposes that no language can
describe. Well, gentlemen, you have to judge of people accord-
ing to the ordinary things. There being no proof of such pur-
poses on her part, you will not justify yourselves in ascribing
them to her. You will remember that Mrs. Raymond, the
dressmaker, a lady to all appearances, who cainc and testified
of theirbeing togelhcra few months before, fourof them during
dressmaking silling in the guest chamber sewing, a regular
dressmaking party. Philip I larringlon ought to have been there
and had the whole style developed to him, to leant more than


Classics of the Courtroom
he knows, if it is possible to pul anything into his head on the
subject. There they arc. Was that an angry family? Was that a
murderous group?
You lake another thing: You have Them there as Bridget
says, and there is no evidence to the contrary, they have told
you the whole thing, when Emma Borden comes on the stand
to tell you the inside condition of (lie family, and they will say
to you that Miss Emma Borden, the sister who was away from
home on a visit at this lime, against whom they have not the
slightest suspicion, but about whom llicy will say thalhcrsistcr-
Iy affection carries her along to swing her from the truth. You
will judge of her. I will not apologize for her. She has a right
to be where her sister is. It is creditable that she docs stand by
her and it will lake a long lime for a man to say in his heart she
is untruthful for telling what she docs here. She went on to say
that they had trouble five or six years ago in regard to the
property and there was no resentment; so far as Lizzie was con-
cerned it was all adjusted. When we get the open and un-
restrained testimony of Miss Emma we arc told there was
trouble. The father had put in Mrs. Bordens hands a piece of
properly, and she says we did not feel satisfied and we told him
so, and then came the word to us through another person, Your
father is all ready to give you a property for yourselves, to make
it even, if you will only ask for it. They asked for it and got it.
And Emma says she never felt just right about it afterwards.
She says up to the day of the death of Mrs. Borden she had not
overlooked it, but she says as to Lizzie there never was any
trouble .about itnever was after that lime. There is a dif-
ference between the two girls. One blurts out exactly as she
feels; llic oilier bears what she is called upon to endure in
silence. You will find the same fact, separate and distinct dis-
positions often in the same family. From that time, five years,
more than half of it covered by the residence of Bridget Sul-
livan, there is no word of any trouble, or indication of anything
except this remark made to Mrs. Gifford. If you take the whole
of it, if Mrs. Gifford has not slipped in a single word. Take it
all, what is there in it that signifies anything? Enough to find
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Lizzie Borden
the motive for these dastardly crimes? But there is anollicr
thing; Here was an old man with two daughters, an older one
and a younger one. They had gone on together. He was a man
that wore nothing in the way of ornament, of jewelry but one
ring, and that ring was Lizzies. It had been put on many, many
years ago when Lizzie was a little girl, and the old man wore it
and it lies buried with him in the cemetery. He liked Lizzie, did
he not? He loved her as his child; and the ring that stands as the
pledge of plighted faith and love, that typifies and symbolizes
the dearest relation that is ever created in life, that ring was the
bond of union between the father and the daughter. No man
should be heard to say dial she murdered the man that so loved
her. An old-fashioned man, lived in a simple way, did not care
anything about the frivolities of life, not attractive perhaps to
some of the younger and go-ahead people, but one who lived
in his own way, had worked himscl f up to what would be called
a fortune, had taken care of it, was then superintending its use
and the income, and for all that on his little finger was dial ring
which belonged to his little girl. You may tell me if you want,
that the relation between that parent and child was such that
alienation was complete, and wrong was the purpose of her
heart, but you will not ask me to believe it. Mind you, too, that
on this question of die relations of these people there is not a
word that comes from Mr. Morse of any ill feeling, or from
Miss Russell or any other living person, and so I think you will
agree with me that there is not anything whatever in this as-
sumption that the feelings were such that this defendant could
have had this guilty intent and worked out this guilty act.
I pass. The learned District Attorney in his opening said that
there was an impassable wall built up through that house. But
the moment we got at the wall, down it went, doors flew open,
and instead of showing a line in the house shut in and hedged
in by locks, we find that Mr. Bordens room was doubly and
trebly locked, Bridgets room was locked and Mrs. Bordens
door was locked, and you find Miss Lizzies room locked, as
well as Emmas, the guest chamber locked, the parlor and the
silting roomI dont know but what everything, and that was
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all because llicrc had been a burglary in ihc house and bam, as
il came out in ihc slory, and Mr. Borden, old-fashioned man
that he was, thought they wanted to lock the house pretty
securely, lie kept a safe in that back room in which lie kept
valuables. This was locked day and night, and no little care was
given to the fastenings of the doors in all parts of the house. But
you see the impassable wall was not as against the two girls but
was simply a mailer or protection to keep people out. If it was
an impassable wall and not to keep people out, why did they
have a lock on the door to the back stairs and why did they lock
up the allies?
They say she rushed in from the outside iuid discovered the
homicide. There is no proof of dial. In another place they say
she did not go out of the house. They claim in one breath that
she did not go to die bam and then say that she rushed in and
discovered the homicide. Rushed in from where, if she did not
go out? But if alter she discovered it, she passed in and saw the
horrid sight, the testimony shows dial she retreated to the side
door and got as far from it as she could. She undoubtedly
dreaded an attack from the murderer who had killed her father
and she would naturally get as far from the body of her father
as she could, and she stood at die closed screen door widi the
open wood door behind it and shouted to Bridget. Bridget was
the quickest to respond. She could not go to die front part of
the house, for there was nobody dicrc, without passing the hor-
rible sight, her dead father. Where could she go? Where would
you go under the circumstances? She called for Bridget to run
and get someone as quickly as she could. If she had murdered
those two people, do you diink she would have called for
Bridget as quick as that? Would not she have gone down the
streetordoiicsomcihingofthalkind where she would nolhavc
been seen in such close proximity to the scene of this tragedy?
But she went and shouted for Bridget and asked her to come
down, all in trepidation and alarm, to find Mr. Borden killed.
You cannot faint away, you cannot look pale when you try to,
and so when Bridget had gone, this woman stood pale and trem-
bling by that open door on that August morning and looking
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Lizzie Borden
over, she saw Mrs. Churchill. Mrs. Churchill, loo, saw her and
observed the distress she was in and as she stood by the closed
window where she could not speak to her, she hurried at once
to the open window and called out, Oh, Lizzie, what is the
matter? Have you any patience with any man who will tell you
that Lizzie stood at that door that morning like a marble statue
without any feeling? What drove Mrs. Churchill to that win-
dow? Nothing but that picture of distress and agony that she
saw across that narrow space and then she went over and Liz-
zie says, Oh, Mrs. Churchill, come quick, and she went as
quickly as she could. What do they want people to do? Then
when she got there, she was crying, she was faint. At that they
bathed her, trying to restore her, Dr. Bowen, Mrs. Churchill,
Miss Russell, Mrs. Bowen, all contributing to gel her to lie
down on the lounge in the dining room. Oh, but they say she
was a hardened rascal and did not want to lie down. It was all
a make up. Did she grow pale and faint all for a sham? Let us
have some consistency in this ease. I said crying. The District
Attorney said she did not cry. But Bridget says she did, and
Bridget was there, and Brother Moody was not. Bridget said in
her former testimony in answer to Mr. Knowlton that she was
crying. You heard the evidence read by Miss White, the stenog-
rapher who took it down, but now Bridget says she does not
rcmemberit. But we will lakcitas wcfinditundcroalh. Bridget
says she never saw her so distressed and agitated before. I have
told you about Mrs. Bowen. All those three people were sick
in the house on Tuesday, including Lizzie. It was in August
weather, and whether they had eaten something or the weather
had caused iL we do not know, but die Government seems to be
floundering around with the idea that because Bridget was not
sick, they had been poisoned. There is no evidence of this. 1
have known the time in my own family that sometimes two or
three members fell sick and one escaped. Il is not uncommon
for several in one family to have the grippe and the rest escape
it. They arc to be congratulated. You cannot draw any inference
from that. Then il was said she went round to see Miss Russell
Wednesday, and told her about the burglary, and how the fadicr
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