“And, of course, after she returned home, she continued always to live in the family up to the time of this homicide. It is to be taken into account, also, with what we know of the feelings of persons who have been absent from home, unless their feeling about the home is firmly hostile and firmly fixed as a hostile feeling, we would hardly expect such a statement as we offer to show was made in this case. I think I have made the ground upon which we offer this clear to Your Honors. Perhaps I have not expressed it so fully or so well as I might do, but I think Your Honors understand precisely what I mean.”
“Mr. Robinson?” Mason said.
Moody took a seat again beside his co-counsel, and watched Robinson closely as he rose and approached the bench. For all his fifty-nine years, the chief counsel for the defense looked exceedingly fit, a tall, deep-chested, clean-shaven man with pale blue eyes and gray hair turning white. His ancestors — like Moody’s own — went back for generations in Massachusetts history, had, in fact, fought in the Revolutionary War battles of Concord and Lexington. It was near Lexington that Robinson had lived as a boy, working on his father’s farm, attending the district school for only three or four months each year. Like Moody, he was also a Harvard graduate, living on a pittance while a student there. That this man — springing from such mean roots and coming to the practice of the law when he was already thirty-two years of age — had come so far so fast was a testament to his determination and an ominous gauge of the sort of opponent he would be in this trial. Moody was not pleased that Robinson had been governor of the state until a scant six years ago; nor did it please him that many still called the man “Governor.”
In a familiar tone, almost as though he were addressing friends and colleagues (as indeed two of them had been and still were, Moody thought) in his own sitting room rather than arguing to the three men who would rule on this matter of law now before them, Robinson said, “Now, of course, we stand upon this statement: that it is altogether too remote. I cannot see how it can possibly fall within the line of the cases permitting such statements to be made. The witness had been abroad, we understand, in Europe, traveling in Europe during the summer. Two ladies together, perhaps more, I am not informed. And as they are coming across upon the ship, this conversation occurs. Now there is nothing in it that anyone would think of offering an objection to, except that her home was an unhappy one. However much we all want to get home after we’ve been abroad a long time, those who’ve had an opportunity to go — a great many have not — but however much we think of that, I presume there’s not a party that has ever gone on a journey that doesn’t say, ‘Well, we’ve had so good a time I really wish I wasn’t going back.’ That’s about all there is of it.
“Suppose she had said, abroad in 1890, ‘My home is unhappy’? Suppose she had said it two or three times with no reference to anybody in person? Is that significant of a state of mind that was operative down through till the fourth of August, 1892? Within the lines of the distinctions made in the case of Commonwealth versus Abbott — which Your Honors must be quite familiar with — it is properly held to be too remote. I do not need to enlarge on this,” Robinson said. “It seems to me it lies right close up to our experience all around.”
The three judges who now conferred all appeared much older than they actually were, perhaps because each of them had white hair and a white beard, perhaps because the heat had caused them all to wilt prematurely on this sweltering June day. The chief justice, Albert Mason, was only fifty-seven years old, a veteran of the Civil War and a former member of the Massachusetts state legislature where he’d worked in committee with the then-senator from Plymouth County — Robinson himself. Although his expression was a somewhat mournful one, his pale eyes were alert. Robinson knew that he had three daughters whose ages were close to Lizzie Borden’s.
Caleb Blodgett of Boston was the senior of the two associate justices sitting with Mason. A graduate of Dartmouth, he had been an expert in bankruptcy law before his appointment to the Superior Court bench eleven years earlier. The unfortunate possessor of a lantern jaw exaggerated by the further thrust of his beard, he rather resembled a belligerent bulldog draped in judicial robes. But for all his fierce demeanor, Robinson knew him to be a genial, unaffected man.
The junior associate justice, a man named Justin Dewey, flanked Mason on the side opposite Blodgett. Dewey was strikingly handsome in a leonine way, with a full head of white hair and a white beard trimmed rather more closely than was Mason’s. He was a graduate of Williams College, a former member of the state legislature, a former state senator, and had been a Superior Court justice for the past seven years now, ever since his appointment in 1886. Robinson knew him well. In fact, it was Robinson who — while serving as governor of the state of Massachusetts — had appointed Dewey to his present position, a lifetime post.
“The Court are of the opinion,” Chief Justice Mason said, “that the character of the testimony offered, the expressions used, are too ambiguous, so that — aside from its remoteness — the evidence is not competent.
“If the expression were distinct of personal ill will to either the father or the stepmother, it might not be too remote.
“We think the evidence should be excluded.”
It had taken a remarkably short time to settle upon the twelve men who would weigh the evidence and deliver the verdict, especially when one considered that virtually all of them examined had formed a prior opinion about the case, and many of the candidates were opposed to capital punishment. On the first day of the trial, Chief Justice Mason had put the identical questions to each of the prospective jurors:
“Are you related to the prisoner, or to Andrew J. or Abby D. Borden?”
“Have you formed or expressed an opinion in relation to this case?”
“Are you sensible of any bias or prejudice in it?”
“Have you formed any opinion that would preclude you from finding the defendant guilty of an offense punishable by death?”
Each side had been allowed twenty-two challenges. The prosecution had exhausted fourteen of them and the defense twenty-two by the time the last juror was selected at three in the afternoon. That first day of the trial had been uncomfortably hot, and the atmosphere inside the courtroom oppressive at best. Lizzie, sweltering in a black brocade dress and black lace hat, had sighed in relief when the twelfth man took his seat in the jury box.
She watched them now as they came back into the courtroom. Most of them were farmers; one of them was a blacksmith. Three of them had similar last names: Wilbar, Wilber and Wilbur. All of them were wearing either mustaches or beards. Her fate, it appeared, would be decided by twelve hirsute jurors and three equally hirsute judges. Somehow she was grateful that Governor Robinson was clean-shaven and that Mr. Jennings’s mustache was somewhat less flamboyant than that of Melvin Ohio Adams, her third attorney, whose name she found almost as preposterous as the adornment over his upper lip. She had fainted yesterday.
She had fainted after Moody’s opening statement to the jury.