He was the old fellow who spoke to me from between the bars of his den
on my visit the week before to the inferno--the day I found Samanthy
North and her baby--and who told me then he was charged with "sellin'"
and that he "reckoned" he was the oldest of all the prisoners about him.
He had on the same suit of coarse, homespun clothes--the trousers hiked
up toward one shoulder from the strain of a single suspender; the
waistcoat held by one button; the shirt open at the neck, showing the
wrinkled throat, wrinkled as an old saddle-bag, and brown, hairy chest.
Pie still carried his big slouch hat, dust-begrimed and frayed at the
edges. It hung over one knee now, a red cotton handkerchief tucked under
its brim. He was superstitious about it, no doubt; he would wear it when
he walked out a free man, and wanted it always within reach. Hooked in
its band was a trout-fly, a red ibis, some souvenir, perhaps, of the
cool woods that he loved, and which brought back to him the clearer the
happy, careless days which might never be his again.
The trout-fly settled all doubts in my mind as to his origin and his
identity. He was not a "moonshiner"; he was my old trout fisherman,
Jonathan Gordon, come back to life, even to his streaming, unkempt
beard, leathery skin, thin, peaked nose, and deep, searching eyes. That
the daisies which Jonathan loved were at that very moment blooming over
his grave up in his New Hampshire hills, and had been for years back,
made no difference to me. I could not be mistaken. The feeble old man
sitting within ten feet of me, fidgeting about in his chair, the glare
of the big windows flooding his face with light, his long legs tucked
under him, his bony hands clasped together, the scanty gray hair adrift
over his forehead, his slouch hat hooked over his knee, was my own
Jonathan come back to life. His dog, George, too, was somewhere within
reach, and so were his fishing-pole and creel, with its leather
shoulder-band polished like a razor-strop. You who read this never saw
Jonathan, perhaps, but you can easily carry his picture in your mind by
remembering some one of the other old fellows you used to see on Sunday
mornings hitching their horses to the fence outside of the country
church, or sauntering through the woods with a fish-pole over their
shoulders and a creel by their sides, or with their heads together on
the porch of some cross-roads store, bartering eggs and butter for
cotton cloth and brown sugar. All these simple-minded, open-aired,
out-of-doors old fellows, with the bark on them, are very much alike.
The only difference between the two men lay in the expression of the two
faces. Jonathan always looked straight at you when he talked, so that
you could fathom his eyes as you would fathom a deep pool that mirrored
the stars. This old man's eyes wavered from one to another, lighting
first on the jury, then on the buzzard of a District Attorney, and then
on the Judge, with whom rested the freedom which meant life or which
meant imprisonment: at his age--death. This wavering look was the look
of a dog who had been an outcast for weeks, or who had been shut up with
a chain about his throat; one who had received only kicks and cuffs for
pats of tenderness--a cringing, pleading look ready to crouch beneath
some fresh cruelty.
This look, as the trial went on and the buzzard of an attorney flapped
out his denunciations, deepened to an expression of abject fear. In
trying to answer the questions hurled at him, he would stroke his
parched throat mechanically with his long fingers as if to help the
syllables free themselves. In listening to the witnesses he would curve
his body forward, one skinny hand cupped behind his ear, his jaw
dropping slowly, revealing the white line of the lips above the
straggling beard. Now and then as he searched the eyes of the jury there
would flash out from his own the same baffled, anxious look that comes
into dear old Joe Jefferson's face when he stops half-way up the
mountain and peers anxiously into the eyes of the gnomes who have stolen
out of the darkness and are grouping themselves silently about him--a
look expressing one moment his desire to please and the next his anxiety
to escape.
There was no doubt about the old man's crime, not the slightest. It had
been only the tweedledum and tweedledee of the law that had saved him
the first time. They would not serve him now. The evidence was too
conclusive, the facts too plain. The "deadwood," as such evidence is
called by the initiated, lay in heaps--more than enough to send him to
State prison for the balance of his natural life. The buzzard of a
District Attorney who had first scented out his body with an indictment,
and who all these eleven months and ten days had sat with folded wings
and hunched-up shoulders, waiting for his final meal--I had begun to
dislike him in the Bud Tilden trial, but I hated him now (a foolish,
illogical prejudice, for he was only doing his duty as he saw it)--had
full control of all the "deadwood"; had it with him, in fact. There were
not only some teaspoonfuls of the identical whiskey which this
law-breaker had sold, all in an eight-ounce vial properly corked and
labelled, but there was also the identical silver dime which had been
paid for it. One of the jury was smelling this whiskey when I entered
the court-room; another was fingering the dime. It was a good dime, and
bore the stamp of the best and greatest nation on the earth. On one side
was the head of the Goddess of Liberty and on the other was the wreath
of plenty: some stalks of corn and the bursting heads of wheat, with one
or two ivy leaves twisted together, suggesting honor and glory and
achievement. The "deadwood"--the evidence--was all right. All that
remained was for the buzzard to flap his wings once or twice in a
speech; then the jury would hold a short consultation, a few words would
follow from the presiding Judge, and the carcass would be ready for the
official undertaker, the prison Warden.
How wonderful the system, how mighty the results!
One is often filled with admiration and astonishment at the perfect
working of this mighty engine, the law. Properly adjusted, it rests on
the bedplate of equal rights to all men; is set in motion by the hot
breath of the people--superheated often by popular clamor; is kept safe
by the valve of a grand jury; is governed in its speed by the wise and
prudent Judge, and regulated in its output by a jury of twelve men.
Sometimes in the application of its force this machine, being man-made,
like all machines, and thus without a soul, gets out of order, loosens a
cog or bolt perhaps, throwing the mechanism "out of gear," as it is
called. When this happens, the engine resting on its bed-plate still
keeps its foundation, but some lesser part, the loom or lathe or
driving-wheel, which is another way of saying the arrest, the trial or
the conviction, goes awry. Sometimes the power-belt is purposely thrown
off, the machinery stopped, and a consultation takes place, resulting in
a disagreement or a new trial. When the machine is started again, it is
started more carefully, with the first experience remembered. Sometimes
the rightful material--the criminal, or the material from which the
criminal is made--to feed this loom or lathe or driving-wheel, is
replaced by some unsuitable material like the girl whose hair became
entangled in a flying-belt and whose body was snatched up and whirled
mercilessly about. Only then is the engine working on its bed-plate
brought to a standstill. The steam of the boiler, the breath of the
people, keeps up, but it is withheld from the engine until the mistake
can be rectified and the girl rescued. The law of mercy, the divine law,
now asserts itself. This law, being the law of God, is higher than the
law of man. Some of those who believe in the man-law and who stand over
the mangled body of the victim, or who sit beside her bed, bringing her
slowly back to life, affirm that the girl was careless and deserved her
fate. Others, who believe in the God-law, maintain that the engine is
run not to kill but to protect, not to maim but to educate, and that the
fault lies in the wrong application of the force, not in the
force itself.
So it was with this old man. Eleven months and ten days before this day
of his second trial (eleven months and three days when I first saw him),
a flying-belt set in motion up in his own mountain-home had caught and
crushed him. To-day he was still in the maw of the machinery, his
courage gone, his spirit broken, his heart torn. The group about his
body, not being a sympathetic group, were insisting that the engine
could do no wrong; that the victim was not a victim at all, but lawful
material to be ground up. This theory was sustained by the District
Attorney. Every day he must have fresh materials. The engine must run.
The machinery must be fed.
And his record?
Ah, how often is this so in the law!--his record must be kept good.
* * * * *
After the whiskey had been held up to the light and the dime fingered,
the old man's attorney--a young lawyer from the old man's own town, a
smooth-faced young fellow who had the gentle look of a hospital nurse
and who was doing his best to bring the broken body back to life and
freedom--put the victim on the stand.
"Tell the jury exactly how it all happened," he said, "and in your own
way, just as you told it to me."
"I'll try, sir; I'll do my best." It was Rip's voice, only fainter. He
tugged at his collar as if to breathe the easier, cleared his throat and
began again. "I ain't never been in a place like this but once before,
and I hope you'll forgive me if I make any mistakes," and he looked
about the room, a flickering, half-burnt-out smile trembling on
his lips.
"Well, I got a piece of land 'bout two miles back of my place that
belongs to my wife, and I ain't never fenced it in, for I ain't never
had no time somehow to cut the timber to do it, she's been so sickly
lately. 'Bout a year ago I was goin' 'long toward Hi Stephens's mill
a-lookin' for muskrats when I heard some feller's axe a-workin' away,
and I says to Hi, 'Hi, ain't that choppin' goin' on on the wife's land?'
and he said it was, and that Luke Shanders and his boys had been
drawin' out cross-ties for the new railroad; thought I knowed it.
"Well, I kep' 'long up and come on Luke jes's he was throwin' the las'
stick onto his wagon. He kinder started when he see me, jumped on and
begin to drive off. I says to him, 'Luke,' I says, 'I ain't got no
objection to you havin' a load of wood; there's plenty of it; but it
don't seem right for you to take it 'thout askin', 'specially since the
wife's kind o' peaked and it's her land and not yourn.' He hauled the
team back on their hind legs, and he says:
"'When I see fit to ask you or your old woman's leave to cut timber on
my own land, I will. Me and Lawyer Fillmore has been a-lookin' into them
deeds, and this timber is mine;' and he driv off.
"I come along home and studied 'bout it a bit, and me and the wife
talked it over. We didn't want to make no fuss, but we knowed he was
alyin', but that ain't no unusual thing for Luke Shanders.
"Well, the nex' mornin' I got into Pondville 'bout eight o'clock and set
a-waitin' till Lawyer Fillmore come in. He looked kind o' shamefaced
when he see me, and I says, 'What's this Luke Shanders's been a-tellin'
me 'bout your sayin' my wife's timberland is hisn?'
"Then he began 'splainin' that the 'riginal lines was drawed wrong and
that old man Shanders's land, Luke's father, run to the brook and took
in all the white oak on the wife's lot and----"
The buzzard sprang to his feet and shrieked out:
"Your Honor, I object to this rigmarole. Tell the jury right away"--and
he faced the prisoner--"what you know about this glass of whiskey. Get
right down to the facts; we're not cutting cross-ties in this court."
The old man caught his breath, placed his fingers suddenly to his lips
as if to choke back the forbidden words, and, in an apologetic
voice, murmured:
"I'm gettin' there's fast's I kin, sir, 'deed I am; I ain't hidin'
nothin'."
He wasn't. Anyone could see it in his face.
"Better let him go on in his own way," remarked the Judge,
indifferently. His Honor was looking over some papers, and the
monotonous tones of the witness diverted attention. Most of the jury,
too, had already lost interest in the story. One of the younger members
had settled himself in his chair, thrust his hands into his pockets,
stretched out his legs, and had shut his eyes as if to take a nap.
Nothing so far had implicated either the whiskey or the dime; when it
did he would wake up.
The old man turned a grateful glance toward the Judge, leaned forward in
his chair, and with bent head looked about him on the floor as if trying
to pick up the lost end of his story. The young attorney, in an
encouraging tone, helped him find it with a question:
"When did you next see Mr. Fillmore and Luke Shanders?"
"When the trial come off," answered the old man, raising his head again.
"Course we couldn't lose the land. 'Twarn't worth much till the new
railroad come through; then the oak come handy for cross-ties. That's
what set Fillmore and Luke Shanders onto it.
"When the case was tried, the Judge seed they couldn't bring no 'riginal
deed 'cept one showin' that Luke Shanders and Fillmore was partners in
the steal, and the Judge 'lowed they'd have to pay for the timber they
cut and hauled away.
"They went round then a-sayin' they'd get even, though wife and I 'lowed
we'd take anything reasonable for what hurt they done us. And that went
on till one day 'bout a year ago Luke come into my place and said he and
Lawyer Fillmore would be over the next day; that they was tired o'
fightin', and that if I was willin' to settle they was.
"One o' the new Gov'ment dep'ties was sittin' in my room at the time. He
was goin' 'long up to town-court, he said, and had jest drapped in to
pass the time o' day. There he is sittin' over there," and he pointed to
his captor.
"I hadn't never seen him before, though I know a good many of 'em, but
he showed me his badge, and I knowed who he was.
"The nex' mornin' Lawyer Fillmore and Luke stopped outside and hollered
for me to come out. I wanted 'em to come in. Wife had baked some biscuit
and we was determined to be sociable-like, now that they was willin' to
do what was fair, and I 'lowed they must drive up and git out. They said
that that's what they come for, only that they had to go a piece down
the road, and they'd be back agin in a half-hour with the money.
"Then Luke Shanders 'lowed he was cold, and asked if I had a drap o'
whiskey."
At mention of the all-important word a visible stir took place in the
court-room. The young man with the closed eyes opened them and sat up in
his chair. The jury ceased whispering to one another; the Judge pushed
his spectacles back on his forehead and moved his papers aside; the
buzzard stretched his long neck an inch farther out of his shirt-collar
and lowered his head in attention. The spigot, which up to this time had
run only "emptyings," was now giving out the clear juice of the
wine-vat. Each man bent his tin cup of an ear to catch it. The old man
noticed the movement and looked about him anxiously, as if dreading
another rebuff. He started to speak, cleared his throat, pulled
nervously at his beard for a moment, glancing furtively about the room,
and in a lower tone repeated the words:
"Asked if I had a drap o' whiskey. Well, I always take a dram when I
want it, and I had some prime stuff my son Ned had sent me over from
Frankfort, so I went hack and poured out 'bout four fingers in a glass,
and took it out to him.
"After he drunk it he handed me back the glass and driv off, sayin' he'd
be round later. I took the glass into the house agin and sot it
'longside the bottle on the mantel, and when I turned round there sot
the Gov'ment dep'ty. He'd come in, wife said, while I was talkin' with
Luke in the road. When he see the glass he asked if I had a license, and
I told him I didn't sell no liquor, and he asked me what that was, and I
told him it was whiskey, and then he got the bottle and took a smell of
it, and then he held up the glass and turned it upside down and out
drapped a ten-cent piece. Then he 'rested me!"
The jury was all attention now; the several exhibits were coming into
view. One fat, red-faced juror, who had a dyed mustache and looked like
a sporting man, would have laughed outright had not the Judge checked
him with a stern look.
"You didn't put the dime there, did you?" the young attorney asked, in a
tone that implied a negative answer.
"No, sir; I don't take no money for what I give a man." This came with a
slight touch of indignation.
"Do you know who put it there?"
"Well, there warn't nobody but Luke Shanders could 'a' done it, 'cause
nobody had the glass but him. I heard since that it was all a put-up
job, that they had swore I kep' a roadside, and they had sot the dep'ty
onto me; but I don't like to think men kin be so mean, and I ain't
a-sayin' it now. If they knew what I've suffered for what they done to
me, they couldn't help but feel sorry for me if they're human."
He stopped and passed his hands wearily over his forehead. The jury sat
still, their eyes riveted on the speaker. Even the red-faced man was
listening now.
For an instant there was a pause. Then the old man reached forward in
his seat, his elbows on his knees, his hands held out as if in appeal,
and in a low, pleading tone addressed the jury. Strange to say, neither
the buzzard nor the Judge interrupted the unusual proceeding:
"Men, I hope you will let me go home now; won't you, please? I ain't
never been 'customed all my life to bein' shut up, and it comes purty
hard, not bein' so young as I was. I ain't findin' no fault, but it
don't seem to me I ever done anythin' to deserve all that's come to me
lately. I got 'long best way I could over there"--and he pointed in
the direction of the steel cages--"till las' week, when Sam Jelliff come
down to see his boy and told me the wife was took sick bad, worse than
she's been yet. She ain't used to bein' alone; you'd know that if you
could see her. The neighbors is purty good to her, I hear, but nobody
don't understand her like me, she and me bein' so long together--mos'
fifty years now. You'll let me go home, won't you, men? I git so tired,
so tired; please let me go."
[Illustration: "I git so tired, so tired; please let me go."]
The buzzard was on his feet now, his arms sawing the air, his strident
voice filling the courtroom.
He pleaded for the machine--for the safety of the community, for the
majesty of the law. He demanded instant conviction for this trickster,
this Fagin among men, this hoary-headed old scoundrel who had insulted
the intelligence of twelve of the most upright men he had ever seen in a
jury-box, insulted them with a tale that even a child would laugh at.
When at last he folded his wings, hunched up his shoulders and sat down,
and the echoes of his harsh voice had died away, it seemed to me that I
could hear vibrating through the room, as one hears the murmur of a
brook after a storm, the tender tones of the old man pleading as if
for his life.
The jury had listened to the buzzard's harangue, with their eyes, not
with their ears. Down in their hearts there still rang the piteous
words. The man-made machine was breaking down; its mechanism out of
"gear"; the law that governed it defective. The God-law, the law of
mercy, was being set in motion.
The voice of the Judge trembled a little as he delivered his charge, as
if somehow a stray tear had clogged the passage from his heart to his
lips. In low, earnest tones that every man strained his ear to catch, he
reviewed the testimony of the witnesses, those I had not heard; took up
the uncontradicted statement of the Deputy Marshal as evidenced by the
exhibits before them; passed to the motive behind the alleged
conspiracy; dwelt for a moment on the age and long confinement of the
accused, and ended with the remark that if they believed his story to be
an explanation of the facts, they must acquit him.
They never left their seats. Even the red-faced man voted out of turn in
his eagerness. The God-law had triumphed! The old man was free.
The throng in the court-room rose and made their way to the doors, the
old man going first, escorted by an officer to see him safely outside.
The Judge disappeared through a door; the clerk lifted the lid of his
desk and stowed beneath it the greasy, ragged Bible, stained with the
lies of a thousand lips. The buzzard crammed his hat over his eyes,
turned, and without a word to anyone, stalked out of the room.
I mingled with the motley throng, my ears alert for any spoken opinions.
I had seen the flying-belt thrown from the machine and the stoppage of
the engine. I wanted now to learn something of the hot breath of the
people who had set it in motion eleven months and ten days before.
"Reckon he'll cut a blue streak for home now," muttered a court-lounger,
buttoning up his coat; "that is, if he's got one. You'll never catch him
sellin' any more moonshine."
"Been me, I'd soaked him," blurted out a corner-loafer. "If you can't
convict one of these clay-eaters when you've got him dead to rights,
ain't no use havin' no justice."
"I thought Tom [the buzzard] would land him," said a stout,
gray-whiskered lawyer who was gathering up his papers. "First case Tom's
lost this week. Goes pretty hard with him, you know, when he loses
a case."
"It would have been an outrage, sir, if he had won it," broke in a
stranger. "The arrest of an old man like that on such a charge, and his
confinement for nearly a year in a hole like that one across the street,
is a disgrace. Something is rotten in the way the laws are administered
in the mountains of Kentucky, or outrages like this couldn't occur."
"He wouldn't thank you, sir, for interfering," remarked a bystander.
"Being shut up isn't to him what it is to you and me. He's been taken
care of for a year, hasn't he? Warmed and fed, and got his three meals a
day. That's a blamed sight more than he gets at home. They're only
half-human, these mountaineers, anyway. Don't worry; he's all right."
"You've struck it first time," retorted the Deputy Marshal who had
smelled the whiskey, found the dime, and slipped the handcuffs on the
old man's withered wrists. "Go slow, will you?" and he faced the
stranger. "We got to do our duty, ain't we? That's the law, and there
ain't no way gittin' round it. And if we make mistakes, what of it?
We've got to make mistakes sometimes, or we wouldn't catch half of 'em.
The old skeesiks ought to be glad to git free. See?"
Suddenly there came to my mind the realization of the days that were to
follow and all that they would bring to him of shame. I thought of the
cold glance of his neighbors, the frightened stare of the children ready
to run at the approach of the old jail-bird, the coarse familiarity of
the tavern lounger. Then the cruelty of it all rose before me. Who would
recompense him for the indignities he had suffered--the deadly chill of
the steel clamps; the long days of suspense; the bitterness of the first
disagreement; the foul air of the inferno, made doubly foul by close
crowding of filthy bodies, inexpressibly horrible to one who had
breathed all his life the cool, pure air of the open with only the big
clean trees for his comrades?
And if at last his neighbors should take pity upon him and drive out the
men who had wrecked his old age, and he should wander once more up the
brook with his rod over his shoulder, the faithful dog at his heels, and
a line of the old song still alive in his heart, what about those eleven
months and ten days of which the man-law had robbed him?
O mighty machine! O benign, munificent law! Law of a people who boast of
mercy and truth and equal rights and justice to all. Law of a land with
rivers of gold and mountains of silver, the sum of its wealth astounding
the world.
What's to be done about it?
Nothing.
Better drag a dozen helpless Samanthy Norths from their homes, their
suckling babes in their arms, and any number of gray-haired old men from
their cabins, than waive one jot or tittle of so just a code; and
lose--the tax on whiskey.