Maud Wilder Goodwin.

White aprons, a romance of Bacon's rebellion: Virginia, 1676 online

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justice go down to posterity without stain you must
needs hang me and set my husband free."

" No, never ! never ! never ! " cried her husband ;
but still she knelt there at the feet of the Gov-
ernor. She might as well have knelt to a stone
image, nay, far better ; for an image of stone
could but have been deaf to her prayer, whereas
this lofty gentleman answered her supplication
with such insult as would pollute too far the pages
of my story to set down. Thereafter he bade her
hold her tongue, and with no more show of trial
than had attended Drummond's sentence, Cheese-
man too was dragged away to the guard-house.

Berkeley smiled ; but it was a smile ill to look
upon, such a smile, doubtless, as sits on the face
of Satan as he snatches one soul after another.
Revenge but grows as it is fed, and never yet had
any man enough to glut his appetite.

As the words of insult to the innocent and most
unhappy young wife of Major Cheeseman fell upon
the ears of the audience, there ran a universal
shudder through the crowd, as though they feared
the wild beast whom they had let loose. But one
man there was who feared not to speak his mind,
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Vengeance.

let the issue be what it might. As Colonel Payne
saw Mistress Cheeseman sink to the earth, stricken
down by the tyrant's words as by a dagger, his hand
grasped the sword by his side as though he would
draw it then and there in her defence ; and as he
saw her husband dragged from the court-room, he
rose in his place, and, speaking calmly, though a
spot of indignant red glowed on his cheek, he
said :

" May it please Your Excellency, and you,
gentlemen of the Governor's staff, I ask ere
another rebel be tried, as it were by court-martial,
though in this building raised to the Civil Law,
that your honorable body do consider whether the
time is not come when it were safe to return to
these unfortunate and fallen men the immemorial
right of every free-born Englishman, the right to
a fair trial according to the law of the land."

Here the speaker was interrupted, both by cheers
and hisses. None else but him had ever been
allowed to proceed so far ; but he went on still in
that even tone of voice, while all around was so
quiet that one could hear the rats scurrying about
among the rafters while he paused.

" Have ye forgot," he continued, now half turn-
ing to those on the benches by his side, " have ye
forgot the provisions of your rich inheritance, the

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White Aprons.

great charter, which sure hath suffered no sea
change in its crossing of the ocean which lies
betwixt us and home ? * No freeman,' says that
instrument, ' shall be forejudged of life or limb, dis-
herited, put to torture or death, neither shall he
be disseized, out-lawed, exiled, or distroyed of his
liberties, freeholds, and free customs, but by the
lawful judgment of his peers. So that the judg-
ment is by this fundamental law referred to the
breasts and consciences of a jury.' "

At the word " jury," a mighty shout arose, so
loud that it echoed in the rafters and lost itself in
the open chambers of the eaves.

" A jury ! a jury ! " answered fifty voices at once.

" No more martial law ! "

" Give the rebels their rights ! "

As Berkeley listened to these tumultuous cries,
his countenance grew ever blacker and sterner.
Twice he turned to the sergeant to bid him enforce
order ; but the popular voice was too strong for
him, and the popular will had made itself felt
with a force not to be gainsaid.

Robert Beverley and Philip Ludwell, who sat
side by side at the Governor's right hand, laid
their heads together in earnest counsel, then draw-
ing nearer they whispered thus in the ear of His
Excellency :

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Vengeance.

" 'T were best yield the point since the people
have it so much at heart."

"Not I," rejoined His Excellency, fiercely.
" Think ye I have fought with wolves to fear
these whelps?"

" 'T is but a semblance of yielding, whereby
many a ruler hath conquered an unruly mob ere
now," quoth Beverley.

" Besides," added Ludwell, " the Council be all
of your way of thinking ; so if thou dost declare a
' life and death ' jury to be drawn from the body
of loyal men it shall be as though thou thyself
spake out of twelve mouths."

"There may be. something in't," admitted the
Governor, reluctantly, but relaxing a trifle, and for
the first time, the stern and fixed obstinacy of his
determination.

" Something in it ; there is everything in it,"
answered Ludwell, who had ever a great desire to
stand well with the people, to conciliate while he
ruled, and to hide the iron hand in the velvet
glove. " But if thou wilt gain aught by the con-
cession, grant it quickly, lest thou lose all by seem-
ing to yield on sheer compulsion what now thou
mayst grant as 't were of thy free will and exceed-
ing goodness."

For an instant Berkeley listened, loath to risk his



White Aprons.

autocracy, and yet more loath to lose his vengeance.
Breathless the people awaited his decision, watch-
ing his face as though they read there the vacil-
lations of his purpose.

At length his decision was taken, and rising to
his feet he said :

"People of Virginia, hearken now unto me.
Though 'tis certain that those subjects of His
Majesty late in rebellion against him and me and
all others in rightful authority are entitled to no
show of mercy, and though to spare such were to
encourage treason everywhere to show its ugly
head without fear, lest it should be cut off, and
though it was but for the good of the colony that
martial law has so far been preserved, and though
all know that I have been but the sword in the
hands of the Council in the justice I have meted
out, yet for as much as ye do now cry out for
civil trials for these wretches, confederates, and
traitors to the people, I do yield my judgment in
the matter, and declare for your satisfaction that
hereafter all trials shall be by a life and death
jury, drawn from among these loyal men and true
who sit around me."

Scarcely had the Governor finished when such
a wild scene shook the house as Middle Planta-
tion had ne'er before witnessed at any assembly



Vengeance.

whatsoever of its people. There was throwing up
of hats and hurrahs for Sir William Berkeley, the
protector of Virginia liberties, and finally a rush-
ing forth of the crowd as though their rejoicing
was swollen to a greatness not to be contained
within any four walls.
But the end was not yet



12



177



CHAPTER XI.

THE TRIAL OF BRYAN FAIRFAX.

/' If I have freedom in my love

And in my soul am free,
Angels alone, that soar above,
Enjoy such liberty."

IT was a morning in the beginning of January,
1676-7. His Excellency, the Governor of Vir-
ginia, with three associate judges drawn from the
sixteen members of the Colonial Council, sat that
day in a court of life and death at Middle Plan-
tation, with a panel of jurors summoned from his
loyal adherents.

If the haughty spirit of the vice-regent chafed at
the restraint of their presence, his pride bowed not
to even a semblance of humility. He bore himself
with every whit as swelling a port as when in the
previous month he administered drum-head justice
(or injustice) to the unlucky wights dragged pro-
testing before his court-martial. His temper had
not grown more judicial in the interval of weeks.



The Trial of Bryan Fairfax.

Indeed it seemed as if time but deepened his
sense of injury and made his hatred more intense.
In short, Sir William Berkeley was Sir William
Berkeley still. His mouth was hard and cruel;
his eye was the eye of a tyrant, shifty, suspicious,
and overbearing ; his nose was the nose of a bigot,
with pinched nostrils, which seemed to dilate but
half way, and grudgingly, to the fresh air of heaven.
Reader, when you meet with such a countenance,
waste no time in argument or appeals. It were
as idle to strive to reach the sympathy of the wild
beast by tears, or to melt the heart of the rock
with eloquence.

One who knew him well and saw him daily at
this time wrote home : " Age and misfortune have
withered his desires but not his hopes," whereby I
take it he meant that all the hopes of this bitter
old man were now centred in the destruction of
the desires of others.

The same good folks who had watched the
proceedings of the court-martial thronged the
court again this morning, satisfaction swelling at
their hearts and written on their faces as they
turned them toward the twelve men who were
seated in the jury-box, a rough pen set off at one
side of the court.

It troubled them very little to note that all the
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White Aprons.

faces in that jury belonged to stout King's men,
strong in the traditions of the divine rights of
sovereigns and their vice-regents, men who were
as like as Berkeley himself to mete out the brand-
ing iron and the gibbet to the men brought before
them for the final sentence of " guilty " or " not
guilty." But these colonists who crowd the court
to-day are not of a squeamish constitution, and are
in sooth by no means loath to look upon a fellow
creature swinging high in air with rigid limbs and
distorted, livid features, nor yet to behold bleeding
quarters nailed to the stout iron-bound gates of
the plantation ; but they are Englishmen, ay,
English to the core, and they demand that the
victim be tried and convicted by due process of
English law, not hurried away like cattle to the
shambles at the will of a tyrant.

The English law of that time we must, however,
bear in mind was as far removed from the law of
our day as the taste of that age from ours. The
colonies did but reflect the judicial customs of the
mother country and her courts, wherein every judge,
from Scroggs and Jeffreys down, badgered pris-
oners and browbeat witnesses and cowed juries
into servile submission, while the suspected man
was treated as a criminal, and forced to prove his
innocence, if he could, with all odds against him.
180



The Trial of Bryan Fairfax.

The accused was denied the privilege of counsel
except to advise him on questions of law, and could
not be sworn as a witness in his own defence, though
allowed to make statements, not under oath, to the
jury.

It was a hard and unfeeling crowd which gath-
ered on the benches that third day of January, 1677,
to hear Bryan Fairfax tried for rebellion and
treason, and condemned, as none present doubted
he would be, to die on the gallows. One pale and
delicate face alone quivered with intensity of feel-
ing; but none saw it, for it was sheltered behind
the veil which completely shrouded the features.
But the very veil shook, as the clerk, all prelimina-
ries ended, called the case of " The King against
Bryan Fairfax."

As the summons ended, the prisoner walked
down the room and stood up before the bar, his
guard on either side bearing the axe, after the
English fashion, with its blade turned away as if
(oh, terrible irony ! ) in token of the unwillingness
of the court to shed innocent blood.

Henry Hartwell, the clerk of the court, bade the
sergeant-at-arms make proclamation.

"Oyez! Oyez! Oyez!" cried the sergeant, so
rapidly that the crowd could scarcely hear the
words as he jerked them out. "Sir William
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White Aprons.

Berkeley, Governor of Virginia, and Chief Justice
of this court, chargeth and commandeth all manner
of persons here assembled to keep silence and to sit
with uncovered heads upon pain of imprisonment."

When those who sat below had uncovered their
heads in due obedience, the sergeant turned and
addressed the prisoner at the bar:

" Bryan Fairfax, hold up thy hand."

At these words all eyes were fixed on the pris-
oner. There he stood in the felon's dock, his face
pallid, his eyes sunken ; yet to one at least of those
gathered in the court-room he looked the noblest
and the goodliest man beneath the raftered roof
that day.

"Bryan Fairfax," quoth the clerk, standing up
as the sergeant-at-arms sat down, " thou dost
stand indicted as a false traitor to the illustrious,
serene, and most excellent prince, Charles Second,
by the grace of God, of England, Scotland, France,
Ireland, and Virginia, King and defender of the
faith. The indictment whereon thou art now to be
tried hath four several counts. First, that thou
didst in July last incite the crowd gathered in
the old field on the shores of the York River
to open rebellion and to espousing the cause of one
Nathaniel Bacon, he being in arms, and wickedly
waging war against his lawful sovereign, the King."
182



The Trial of Bryan Fairfax.

" So ye found it out, did ye? " said the prisoner
under his breath.

" Second, that thou didst thyself rise in arms
against the King, and therefore art guilty of rebel-
lion and treason."

"Third, that thou didst aid and abet the said
Nathaniel Bacon in his treason and rebellion
against the King in that thou didst steal and
feloniously convey state papers to him from the
house of Colonel Boynton ; and, fourth and lastly,
thou standest charged with the more particular
offence of having attempted the life of His
Majesty's vicegerent, Sir William Berkeley, the
Governor of this said province of Virginia."

At these last words a tremor of excitement ran
through the crowd.

" How says he ? "

" Attempting the life of the Governor ! "

" Why, that were naked murder."

" Bah ! they will lose all by striving for too much ;
none will believe Fairfax an assassin."

" Silence in the court-room on pain of imprison-
ment!" cried the clerk; and as the hush fell he
continued, turning once more to the prisoner at the
bar : " How sayst thou, Bryan Fairfax ; art thou
guilty or not guilty ? "

"Not guilty."

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White Aprons.

" Wilt thou submit to the judgment of this court,
or wilt thou stand thy trial ? "

" I will stand my trial."

" How wilt thou be tried ? "

" By God and my country."

" God send thee a good deliverance ! "

" Amen ! " called a voice from the crowd. All
turned to discover whence it came, but the confu-
sion covered the speaker, and the trial went
forward.

" Bryan Fairfax," the clerk continued, " listen to
the names of those men whom thou shalt hear
called to pass upon trial for thy life or death. If
thou wilt challenge any, thou must challenge them
when they come to the book to be sworn, before
they be sworn. They are, as thou seest, all free-
holders and housekeepers, as the law doth com-
mand. Here," he added, holding up the scroll so
that Fairfax could see, " thou mayst read the list
for thyself."

"I protest," said Fairfax, turning to Berkeley
when he had by bending forward contrived to
decipher the list of jurymen, "I do perceive in
these men a forejudged sentence against me, for
all of them be of the opposition."

" Opposed to traitors, ay," answered the Gov-
ernor, sternly.

184



The Trial of Bryan Fairfax.

" Surely, Your Excellency will not have me thus
assailed from the jury-box itself before my case is
heard?"

"Faith," answered Berkeley, sneeringly, "me-
thinks we have a full-fledged lawyer among us.
Prithee, young man, where did ye study law to
have your mouth so crammed with argument?"

" I did study law at the Temple Inns for two
years ere ever I came to this poor country," Fair-
fax made calm response; "but sure it needs no
schooling in subtleties of law to plead against a
trial by one's enemies as opposed to fairness and
common justice."

" These gentlemen are thine enemies but in that
they are king's men, and since thy fellow rebels be
still under the ban, thou canst scarce look to have
a jury of thy peers."

The very word rebels seemed to excite Berkeley,
for his face reddened, and his features worked as
he proceeded.

" 'T is idle to say more," said Fairfax, with a cer-
tain scorn in his tone, which cut, though it came
from a man in bonds; " I ask that the clerk record
my protest."

Scarcely waiting for his words to be finished,
the Governor turned to the clerk and bade him
swear the jury. Hartwell rose and summoned the



White Aprons.

jury to be sworn, saying to each and every man as
he came forward to the open Bible :

" Lay your hand upon the book and look upon
the prisoner. You shall well and truly try, and
true deliverance make between our Sovereign Lord
the King and the prisoner at the bar, whom you
shall have in charge according to your evidence,
so help you God."

When each man had thus sworn, the crier took his
place and proclaimed: "Twelve good men and
true, stand together and hear your evidence ! "

Penelope Payne looked on these men, and for
her life, knowing what she knew of them, could
think of nothing but the jury tried to call Faithful,
in a story she had lately read called the " Pilgrim's
Progress," by one Bunyan (himself a prisoner),
and writ, so they said, in jail.

When these gentlemen were sat down, the crier
once more made proclamation : " Oyez ! if any
one can inform the King's justices in regard to the
crimes charged against the prisoner, let him come
forth and he shall be heard ; for now the prisoner
stands at the bar upon his deliverance. The
attorney for the Crown will now set forth the
indictment."

Jauntily, as though he had set himself to ease
the man before him of a purse or a game-bag in-
186



The Trial of Bryan Fairfax.

stead of his life, the public prosecutor rose and
began his speech ; but as he went on he succeeded
in lashing himself into a fury of eloquence which
could deceive none, for all heard the state coin
jingling behind the thunder of his voice :

" Gentlemen of the jury," quoth he, in tones of
professional solemnity, " you have heard the in-
dictment read. You have heard the substance
thereof opened. It is short in words, but high in
consequence treason / 'T is a mighty crime, and
one which no man can commit and live when
detected and apprehended."

" Oh," cried Penelope Payne softly to her own
heart, nearly broken with anguish, " that any man
should seek the life of another in cold blood, 't is
past believing."

The prosecutor continued : " Lese-Majesty would
set at naught all traditions, all sanctions, all sanc-
tities, and tread under foot all that makes life dear
and honorable. All this the prisoner at the bar
hath done, as we will show you by many witnesses,
who will proclaim him out of his own mouth a
traitor and a rebel ; and as though this general
crime wherein he is knit and bound together with
those who have already paid for their fault with
their lives and whose blood cries aloud to him to
join them on the scaffold, were not enough, this
187



White Aprons.

person hath descended to the deeper and more
particular iniquity of the assassin."

'T is false!"

The deep voice of Fairfax rang out like hammer
on anvil, crashing down upon the smooth glibness
of the public prosecutor.

" Ay, is it so ? " the prosecutor made response
in a tone of insolent irony. '* We have your word
for it, the word of a rebel and a traitor ! "

The hand of Fairfax fumbled as though feeling
for his sword ; then realizing his helplessness he
cast but one glance of indignation at his tormentor,
and then addressing the Bench he continued in
calmness :

"The accusation of attempting the life of the
Governor I have repelled with the scorn befitting
an officer and a gentleman. Poison is the weapon
of a coward and a miscreant. No follower of
Bacon hath ever employed it against a foe."

At this there went a murmur about the court ;
for 'twas openly circulated that General Bacon
had been foully taken off after that fashion. The
justices writhed on the bench, and Berkeley grew
red as fire, and muttered under his breath : " Faith,
the rope shall choke that insolent tongue of his ! "

Penelope Payne, watching the jury, saw all brows
darken, and her heart sank within her.
188



The Trial of Bryan Fairfax.

" We care not for your asserting unless ye have
proof," cried the Governor. " We will hear your
witnesses, but not you till ye have a chance to cry
for pardon."

" So," says Fairfax, coolly, " you have already
decided on my conviction. Your Honors, I do
protest against being tried thus before the man I
am accused of striving to murder. Is it not writ-
ten in the statutes of England that no man shall
sit in judgment on a case wherein himself is inter-
ested? How much more when that interest ex-
tendeth to his life ! 'T is not possible that I be
fairly heard on the final count of my indictment
while Sir William Berkeley sitteth in that chair."

At this there went a mighty buzzing about the
room. The jurors leaned together, and the justices
announced that they would retire for the considera-
tion of that matter.

Within the court-room opinion wavered now
this way, now that : " His point is ill taken."

" Nay, he hath right on his side."

" The Governor will never yield, yet let him
not try the temper of the people too far."

" He is in a fury."

" Well, he 'd best beware lest his fire burn his
own hand in the end."

" Hush, they are coming back ! "
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White Aprons.

Such silence fell that all could hear the foot-
steps of the judges in the passage-way, and all
marked their faces as they entered.

" We have considered the question raised by the
prisoner," quoth Ludwell, " and we are of one mind
in the matter. Feeling that the life of the Governor
is one with the life of the State, and since he hath
been appointed of the King to sit in all trials for
rebellion and treason, he is of law qualified to sit
in this. The prosecutor may go on."

Fairfax again bade the clerk record his protest,
and then continued:

"For the first count I do acknowledge that I
bade the Gloucester men stand firm for Bacon,
but I did not incite them to bear arms against the
King, but for him." The clerk busily took down
his words, whilst the few friends of the prisoner
in the crowd shook their heads, grieved to see him
thus putting the noose around his own neck.

" Then," quoth the prosecutor, " we will not waste
the time of the court in proving what is confessed,
for Nathaniel Bacon and all those aiding and abet-
ting him were long since duly proclaimed and ad-
judged rebels against their King, and the accused
admits inciting others to the same treason. We
will pass to the second count, wherein thou standest
charged with having been in arms against the king."
190



The Trial of Bryan Fairfax.

The prosecutor smiled a bland, oily smile, as one
who sees his game dropping into his hands with-
out the trouble of firing a shot. " Bryan Fairfax,
we are prepared to prove by many witnesses that
thou wert seen foremost in the van of the rebel
army at the Green Spring trench and among the
burning houses of Jamestown. Dost thou acknowl-
edge this also ? "

" I acknowledge bearing arms with Bacon at
Green Springs, but not as a rebel against the
King," answered Fairfax; and again the prose-
cutor smiled. " No doubt," said he, " thou wilt
as readily assent to the third count of the indict-
ment, wherein thou standest charged with the
stealing and feloniously conveying to Bacon from
the house of Colonel Boynton, where it had been
lodged for safe keeping, a state paper of grave
importance. How sayst thou as to this?"

" I desire to know what state paper I am charged
with taking," said Fairfax, quietly.

" Call Benjamin Boynton ! "

Ere his name was uttered, the giant form of Big
Boynton was seen elbowing its way through the
crowd to the witness-stand.

" Look upon the prisoner ! Hast seen him ere
now ? "

At the question the giant slowly opened his red
191



White Aprons.

eyes, which he ordinarily held half shut, and stared
hard at Fairfax. At length he said: "'Tis the
man. I' d swear to him on Tyburn Hill. He
hath the same set o' the shoulders, and the same
backward carriage o' the head, like one who had
ne'er looked on his better."

" Yes, yes," broke in Beverley impatiently ; " 'tis
needless to say more. The recognizance is full
and perfect. Now state to the court what took
place at Boynton Hall on that night when the
papers were stolen."

" What papers ? " asked Fairfax, quickly ; and
ere the prosecutor could protest Boynton answered
dully, " Why, Nat. Bacon's commission, of course ;
you should know, who stole it."

" Ha," cried Fairfax, triumphantly, whilst Berke-
ley turned red with rage, "was there indeed a
commission from the King to Bacon? Then I
have nothing further to answer upon this count.
'T were waste of time to tarry on this matter. As
I confess to the securing of the King's commission,
so I do most freely confess myself to have been
in arms ; yet do I repel the aspersion of traitor and
rebel which hath been cast upon me. What I have


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Online LibraryMaud Wilder GoodwinWhite aprons, a romance of Bacon's rebellion: Virginia, 1676 → online text (page 9 of 17)