Doug WaltersBy Doug Walters
First published in April, 2006, Volume 3, Issue 2, The Hatchet: Journal of Lizzie Borden Studies.
“You Must Kick Every Dog, Sir…”
(Advice On A Closing Argument)
It is easy when we are in prosperity to give advice to the afflicted. — Aeschylus
Advice usually goes for a penny a pound
Advisors for two bits a gross;
What’s it worth in the end? Nobody knows –
The advisee’s left comatose.
Each of us has, at some point, learned the practical truth in both the ancient statement and the verse above. We may wonder whether Hosea Knowlton suffered similarly as he set about the matter of trying Lizzie Andrew Borden for the crime of double murder.
Advice and theory were a by-product of the Borden murders since almost before the bodies turned cold. Indeed, scratch any inhabitant or would-be “expert” of the day and rather than blood, theory would likely pour out of the wound. Murder-suicide was indeed one of the earliest put forth, and is recorded as finding “many supporters” despite the obvious inequities of that proposition. Within one day of the grisly killings, the “Portuguese or Swede Farm Hand” notion was also investigated and discarded.
Among the few who claimed to have no theory as to the murders early on was Mr. Andrew Jackson Jennings, legal advisor to the late Andrew Borden and friend of Miss Emma L. Borden. But Lawyer Jennings, it appears, was among the few rather than the many.
Speculation it may be, but it stands to reason that Hosea Knowlton was most probably no more immune to (and no less besieged by) theorists and would-be advisors than any other individual of stature connected with the case.
It is not at all difficult to envision his office as it might have been—complete down to the humble sampler hanging behind the desk. Rather than the more common “Home Sweet Home” there would be a more appropriate proclamation, such as that which Mr. Lincoln once reputedly uttered: “If I were to try to read, much less answer, all the attacks made on me, this shop might as well be closed for any other business.” But that Knowlton’s might well have read: “If I were to try to read—much less process and answer—all the tips and theories presented to me regarding the Borden murders at Fall River, this shop might as well be closed for any other business.”
We might well sympathize with such a sentiment.
Battered and beleaguered as he must have been, it would appear though, that Hosea Knowlton did not ignore all the advice he received regarding the Borden matter.
One of the more intriguing bits of advice—proof thereof that is to say—has recently come before the eyes of ye humble Compositor. It lies here on the desk, a small scrap of paper very like a telegraph slip. Remarkably well preserved, it reads as follows:
Dear SIR:
I should like to offer the following for your consideration:
If it is your intent to win the case now being tried at New Bedford you must, so to speak, kick every dog in that courtroom, Sir, with sufficient force such as to drive them out from beneath their proverbial ‘park bench’ of complacency.
Manage that task, Sir, and justice shall be done.
A Friend of the Law
CAMBRIDGE, Mass.
Now in ordinary course, this humble slip should have no more significance than any other tidbit of advisory scrawl. The “Friend of the Law” is unknown, but may be reasonably suspected to have some connection to the law school at Cambridge. This is no mere flight of fancy, but is supported by direct inferential evidence. For contained in close proximity to that humble advisory scrawl (indeed, in the same envelope) is what appears to be an honest attempt by the good District Attorney to follow the writer’s advice. The inference, simply stated here is that Hosea Knowlton would not have attempted such without some reason to believe that this particular writer held a position of eminence, either in the practice or teaching of the law.
The resulting document would likely qualify, to borrow the phrase of Mr. Sherlock Holmes of Baker Street, as “most singular” in its content. It follows here:
May it please this Honorable Court, Mr. Foreman, and Gentlemen of the Jury:
Whether we stand today representing the Commonwealth, as do I now stand before you, or the cause of the defendant, as my brothers Jennings and Robinson have stood—irrespective of position, it cannot be denied that each side shares the same common plot of ground. Both sides stand today as we have stood these many months, in the full and clear recognition that a great tragedy has been done in our midst, one compounded by the fact of not one but two victims. On that common, unshakable ground do we stand—a plot as stark and unyielding as that which received two coffins now some ten months ago.
None but an imbecile, Gentlemen, would dare deny that tragedy has been done, nor that its scope is such as would lacerate the heartstrings of humanity until they ran bright with blood.
There is something Gentlemen, something in the cry of “Murder!” which affects the human heart and soul as does nothing other known to man. Passed from mouth to ear and from mouth to ear, that single word has more effect on any person of good and common intellect than any other word in the language save perhaps “Love.”
But we are not here, Gentlemen, on account of Love. It is murder which has brought us here today—most foul, bloody, and vicious murder.
I need not say much more of this effect, for doubtless you twelve good and true will recall it, the chill and bitter wind sent blustering through the heart and soul of every man and woman within earshot of that first cry. You will know it better than I—for you were here. Nay, gentlemen, I need not ask you to imagine it: You were a part of the community. It came to you in your daily avocations, it sent a thrill through your beings, and you felt that life was not secure. Every man turned detective. Every act and fact and thought that occurred to the thousand, to the million men all over the United States, was spread abroad and furnished and given for the identification of the criminal, and still it remained an impenetrable mystery.
My learned brother asks, “Who upon this earth could have done such a deed?” The very facts alone, as I have said, do chill the heart and bring wonder and fear. “Who could have done such a deed?” The merest consideration will not stand; the facts of these crimes are so horrid, so raw that the slightest consideration of them stunts the intellect, chilling the power of thought. The practical result is much the same as that noted in Shakespeare’s play, where Antony, in his eulogy to Caesar, laments:
O judgment! thou art fled to brutish beasts, And men have lost their reason.
So foul and bloody thing as compounded parricide—the raw and brutish beast of murder—it cannot be! Its very nature offends and displaces the coursing current of reason.
“Such things are the stuff of fiction,” we reassure ourselves. It cannot happen here! That, Gentleman, is but wishful thinking. You may recall that a mere thirty years ago, political assassination was considered a distinctly un-American practice, wholly against everything we knew. It simply could not happen here!
Our history, of course, tells us otherwise—that in that season so flush with the thrill of victory and new hope of rebirth in our land, there came upon the Good Friday eve a gunshot, and in its wake the accursed cry of the old Roman: Sic semper tyrannis! There followed, of course, shock, horror, disbelief and uncertainty much as that we saw last August. Against all we knew, or had known, the unthinkable had come to pass, standing stark and bare before us in our very homes and dooryards. Mr. Lincoln breathed no more, but was commended to the ages. Who would dare to do such a vile thing? was the question on every tongue. Such has been the question, the focus of this proceeding here and now, some twenty-eight years later.
The answer our shaken intellect offers today (that no one could do such a vile thing) will not stand—will not stand, Mr. Foreman, any more than that answer stood twenty-eight years ago, when the poet studded dooryards with lilacs as markers of sorrow.
The facts of this matter, as you have seen with your own eyes will not permit such blind foolishness!
My brother Moody, Gentlemen, has done an admirable job in relating the facts of the case to you upon a prior occasion, and you yourselves have seen the venues in which the horrible butchery took place; so I shall but touch briefly upon the main points this afternoon:
An old couple, man and wife, were struck down and viciously hacked in the autumn of their years, within the bounds of the very domicile in which they made their home.
It was as I have said, and as you good gentlemen will doubtless recollect, a sheer case of unprovoked assassination, a raw and bloody compound act committed in the largest city of this county in the full light of the day. The sheer impossibility of the act—its incomprehensible nature—does not readily contribute to a solution. The good people of this county are unaccustomed to the notion that a murderer might live among them, passing unnoticed and utterly unremarkable. Unaccustomed as they are, however, it is not to be denied that this is so—the corpus dilecti lies before them as proof of the impossible. Murder was done; yes indeed, it was done!
We face today much the same in considering the fact of the prisoner. The facts—and indeed, the eyes of any human endowed with sight—the facts tell us that the prisoner at the bar is a woman of about 32 years; the own daughter of Andrew Jackson Borden, born of a mother now deceased. She is marked among her peers as “a Christian woman” to use the common phrase. Hers is the rank of “Lady” such as we know it; it puts her on equal footing, I may say, with your wife and my wife—with your friends and my friends—of whom such foul and fiendish acts would never be dreamed in a thousand or a million years.
I hope, Gentlemen of the Jury, that I may never forget, nor lose sight of the terrible significance of that fact in anything I might say today. We try a crime that heretofore would have been deemed impossible even to the minds of the most cynical of reasonable men. The prisoner charged is a woman, one whom we would heretofore have thought incapable of such foul and miserable deeds. We would have thought her so Gentlemen, but for the evidence—that which it is my painful duty to recall to your attention today.
Nay, Gentleman, it is a sad and yet true fact that the practice of things which are commonly called “Christian acts”—this is no insular barrier against crime and its temptations, no more a protection than is femininity.
I say to you Mr. Foreman and gentlemen that you cannot dispose of this case upon these two facts alone. The law, gentlemen, does not permit that; for if it did permit that, the prisoner who sits at the bar today would have been told some months ago: “Lizzie, I judge you probably not guilty. You may go home.”
No, gentlemen, no station in life is a pledge or a security against the commission of crime; you know that just as well as I. Would that it were only so!
Now gentlemen I must say to you—do not think by my words here that I for one moment underestimate, or speak lightly of the strength of the Christian character. I do not for a moment mean to say that a man who is a good Christian is not therefore a good man. Most of them are. Many times all of them are. But we are all sons of Adam and Eve. Each of us bears the same weakness, the same liability to fault, fallings, and failings. We strive to do as best we might, yet we are all of us the sons and daughters of Adam and Eve. So it is that when a Christian falls, one known for good works and charity, his fall is all the greater because the outward, public life appeared so pure before.
We are none of us secure. But gentlemen, let me not be misunderstood here. Not for one single moment would I urge that because a man or a woman has led an upright and devout life that therefore there should be any reason for suspecting him or her of crime. To the contrary, good repute itself—proof of good character, life and work—helps to buttress the very foundation of the presumption of innocence. Our good words and works at times are all we have to speak upon our behalf.
I would though, give you this, of a learned writer well-known in the field of the law: “As men do not generally violate the Penal Code, the law presumes every man innocent; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.”
Every prisoner brought to the bar for trial in any cause shall be presumed innocent; but with that, as Dr. Greenleaf expressed it—with that goes hand to hand the knowledge that while the majority do not generally violate the Penal Code, there will be those who do, and against them evidence must be put which is sufficient to repel that universal presumption of pristine innocence.
That, gentlemen, is what we have been about here the past fortnight.
Now gentlemen I find myself obliged to tread upon the most delicate of ground. I do so, I will assure you, most carefully. I must ask you for a moment to ponder a difficult and yet most intriguing matter. The prisoner at the bar is a female, of that sex which generally all high-minded men revere; that all generous men love, that all wise men acknowledge their indebtedness to. It is difficult, Mr. Foreman and gentlemen of the jury, most difficult to conceive that woman could be guilty of these crimes. It is a most difficult and unsettling thought.
But I must propose to you the following: That a woman, loved and revered as she may be—she be no better, no worse than we, her male counterparts. Humanity is as much her enemy as it is our own, Gentlemen. She is gifted of the same faults, failings, and fallings as we are. What she may lack in strength and “grit” as it is commonly called, does she not compensate for in cunning, in dispatch, in swiftness, in ferocity? If a woman’s love were stronger and more enduring than that of a man, Gentlemen, is it saying too much on the other hand that her hatreds are deeper, more persistent, and more immortal than our own? It is difficult, gentleman, as we ponder this question, not to recollect the old maxim, which warns that Hell hath no wrath like a woman’s fury.
Now Gentlemen, do not misunderstand me. I do not mean here to tar the whole of womanhood with the same brush as it were. They are not all vicious. They are not all evil. But you, Mr. Foreman, and gentlemen—you have read and I have read, in works of history and of fiction—you know, as do I that while they are not all like that, there are those who transgress, falling prey to the seductive siren-song of wickedness, of crime, and of murder.
Yet at the same time, even as we sit here dumbfounded and puzzling that a woman be charged with such brutality, much less that she might commit it—is it not also within the bounds of recollection of every man here, the case of a woman who murdered a whole cart load of relatives for the sake of money?
Now Gentlemen, mark me, I do not offer that lightly but merely as reminder. We may honor, we may love, we may revere them—and yet they too are the daughters of Adam, as we are the sons. They possess the same weaknesses, the same liability to fault, fallings, and failings, as do men. We cannot approach this case as gallants, Mr. Foreman; we must face it with clear, open eyes!
You yourselves, gentlemen have heard and seen the evidence, trod the very venue of that humble home wherein did reside an old man of nearly threescore years and ten. You have seen the domicile, spare in ways perhaps but not entirely without its comforts, which he did share with his wife, who was in age threescore and four years. You have seen too, the rooms of ease, comfort and slumber which were in moments converted to no more than slaughter pens, spattered and violated with blood shed in anger—vicious, passionate anger.
Distasteful and alien as it may be, gentlemen, to everything you were taught and raised to know of woman, you must today face the bald fact that here one sits before you at the bar. Her crime as charged, Mr. Foreman and gentlemen, is nothing less than compound parricide.
I do not stand before you today happily, gentlemen. Would that I was able, I should gladly have said to the Attorney General, “Please, let this cup pass from me.” I do not, however, have that luxury. I must stand before you today as advocate, the spokesperson for two people; two people through whom life’s blood once coursed. I speak today in behalf of an aged man and woman, two who, had their final lot been kinder, should have proceeded untroubled down the hill of life, secure and serene as they lived and perhaps reflected upon a life of happiness, earned by virtue of fidelity and honest toil.
I do not stand before you today as some crazed village boob waving the bloody shirt of vengeance. Rather, today I deliver unto you the simple plea of a man, nearly threescore years and ten. I bring to you the soft request of the shy and fidelitous wife. Through me, today, these two voices now stilled do utter one final request: “Let us have justice!”
That today is my duty, Mr. Foreman and gentlemen of the jury. It is my duty to speak for them. But in turn, it is your duty—and in ways the more sacred duty—you Gentlemen are the only twelve upon this earth who can do these victims justice!
It is in that spirit, Mr. Foreman, one of honest and earnest advocacy, which I shall now pass to some discussion of the evidence in this matter.
First, I may remark upon its unique character. We regret, gentlemen, that we cannot put before you today—particularly today as you begin your solemn consideration of this matter—direct evidence, undeniable proof that the prisoner at the bar is a foul and vicious murderess whose neck is worthy of the rope’s tender caress.
A photograph of course, might exemplify such direct evidence. Those we lack—indeed the only photographic evidence that exists is that which you have seen, those stark and repulsive images that record the wake of the carnage in all its foul and bloody bitterness.
Nor do we have direct evidence of other sorts. No witness has come forward to say “I saw it, Sir—saw the swing of the weapon, heard the last piercing cries of both victims, ‘ere their life’s blood began to flow in torrents. It made me ill, Sir . . . ill to the point of retching . . . Who? Oh yes Sir, I did see who . . . It was the daughter Sir, she who is presently at home. It pains me under the circumstances to say it, but yes . . . I have known her many years, and would easily know her by sight.”
We cannot, as I have said Mr. Foreman, give you such direct evidence as that. If it were so, the job of the Commonwealth in this matter would be so much more easily done! What we can give you—indeed as we have tried to give the past fortnight here—our evidence, gentlemen, is very like the pieces of a child’s puzzle, pieces which if turned and examined sufficiently, soon reveal that there is one single way in which the pieces will fit together, and form a picture. That then, is the nature of our evidence.
I should like next to briefly address an issue upon which you shall be instructed again at some point before beginning your deliberations. You will as I say, Mr. Foreman and gentlemen of the jury, hear this again, but I would like to utter a word or two about that which is known as “reasonable doubt.” It is, as you may suppose, a most vital issue.
The highest court of this Commonwealth defined it for us two score and three years ago, in the same case I may add, as was alluded to by the learned Chief Justice in his preliminary remarks to you before we entered upon the trial of this case. Your questioning beforehand—that practice was born of the same case, that of the Commonwealth against Professor John White Webster, decided in 1850.
About “reasonable doubt” that same Court said:
“Proof beyond reasonable doubt, is not beyond all possible or imaginary doubt, but such proof as precludes every reasonable hypothesis or theory except that which it tends to support. It is proof to a moral certainty, as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases, beyond reasonable doubt, and, to a moral certainty, are synonymous and equivalent. They mean the same thing. Each has been used by eminent judges to explain the other, and each signifies such proof as satisfies the judgment and conscience of the jury as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible. In other words, they must have as clear and strong a conviction in their own minds of the proof of that conclusion as they would require to have in the truth of a conclusion to be acted on by them in matters of the highest importance to themselves.”
With that definition and standard in mind, let us then, Mr. Foreman and gentlemen of the jury—let us proceed to a review of the case, and of the evidence which has been set forth.
Here unfortunately the District Attorney halted his composition, or the remainder has been lost. The first seems the most likely possibility, owing mainly to fatigue or frustration. Or perhaps, at the moment he ceased, Hosea Knowlton recalled the words of an eminent jurist of the Commonwealth, who observed in 1880:
“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Knowlton’s reason is impossible to divine, but a completed address would certainly have proved interesting.
We are judged by the words we use. This tidbit of wisdom (heard so often in recent years that it’s nearly cliché) is no less common to the lawyer than it is to the writer. Each, in the end, has no more weapons than words at his or her disposal. The tune may be a bit different, but the fox-trot is in essence the same.
It is easy when we are in prosperity to give advice to the afflicted.
So it is.
