“Alas, monsieur, in spite of our fine courtesies, the conception of
justice by one race must always seem outlandish to another!”
It was on the terrace of Sir Henry Marquis' villa at Cannes. The
members of the little party were in conversation over their tobacco--the
Englishman, with his brier-root pipe; the American Justice, with a
Havana cigar; and the aged Italian, with his cigarette. The last was
speaking.
He was a very old man, but he gave one the impression of incredible,
preposterous age. He was bald; he had neither eyebrows nor eyelashes. A
wiry mustache, yellow with nicotine, alone remained. Great wrinkles lay
below the eyes and along the jaw, under a skin stretched like parchment
over the bony protuberances of the face.
These things established the aspect of old age; but it was the man's
expression and manner that gave one the sense of incalculable antiquity.
The eyes seemed to look out from a window, where the man behind them had
sat watching the human race from the beginning. And his manners had
the completion of one whose experience of life is comprehensive and
finished.
“It seems strange to you, monsieur”--he was addressing, in French, the
American Justice--“that we should put our prisoners into an iron cage,
as beasts are exhibited in a circus. You are shocked at that. It strikes
you as the crudity of a race not quite civilized.
“You inquire about it with perfect courtesy; but, monsieur, you inquire
as one inquires about a custom that his sense of justice rejects.”
He paused.
“Your pardon, monsieur; but there are some conceptions of justice in the
law of your admirable country that seem equally strange to me.”
The men about the Count on the exquisite terrace, looking down over
Cannes into the arc of the sea, felt that the great age of this man gave
him a right of frankness, a privilege of direct expression, they
could not resent. Somehow, at the extremity of life, he seemed beyond
pretenses; and he had the right to omit the digressions by which younger
men are accustomed to approach the truth.
“What is this strange thing in our law, Count?” said the American.
The old man made a vague gesture, as one who puts away an inquiry until
the answer appears.
“Many years ago,” he continued, “I read a story about the red Indians by
your author, Cooper. It was named 'The Oak Openings,' and was included,
I think, in a volume entitled Stories of the Prairie. I believe I have
the names quite right, since the author impressed me as an inferior
comer with an abundance of gold about him. In the story Corporal Flint
was captured by the Indians under the leadership of Bough of Oak, a
cruel and bloodthirsty savage.
“This hideous beast determined to put his prisoner to the torture of the
saplings, a barbarity rivaling the crucifixion of the Romans. Two small
trees standing near each other were selected, the tops lopped off and
the branches removed; they were bent and the tops were lashed together.
One of the victim's wrists was bound to the top of each of the young
trees; then the saplings were released and the victim, his arms wrenched
and dislocated, hung suspended in excruciating agony, like a man nailed
to a cross.
“It was fearful torture. The strain on the limbs was hideous, yet the
victim might live for days. Nothing short of crucifixion--that beauty of
the Roman law--ever equaled it.”
He paused and flicked the ashes from his cigarette.
“Corporal Flint, who seemed to have a knowledge of the Indian character,
had endeavored so to anger the Indians by taunt and invective that some
brave would put an arrow into his heart, or dash his brains out with a
stone ax.
“In this he failed. Bough of Oak controlled his braves and Corporal
Flint was lashed to the saplings. But, as the trees sprang apart,
wrenching the man's arms out of their sockets, a friendly Indian,
Pigeonwing, concealed in a neighboring thicket, unable to rescue his
friend and wishing to save him from the long hours of awful torture,
shot Corporal Flint through the forehead.
“Now,” continued the Count, “if there was no question about these facts,
and Bough of Oak stood for trial before any civilized tribunal on this
earth, do you think the laws of any country would acquit him of the
murder of Corporal Flint?”
The whole company laughed.
“I am entirely serious,” continued the Count. “What do you think? There
are three great nations represented here.”
“The exigencies of war,” said Sir Henry Marquis, “might differentiate a
barbarity from a crime.”
“But let us assume,” replied the Count, “that no state of war existed;
that it was a time of peace; that Corporal Flint was innocent of wrong;
and that Bough of Oak was acting entirely from a depraved instinct bent
on murder. In other words, suppose this thing had occurred yesterday in
one of the Middle States of the American Republic?”
The American felt that this question was directed primarily to himself.
He put down his cigar and indicated the Englishman by a gesture.
“Your great jurist, Sir James Stephen,” he began, “constantly reminds
us that the criminal law is a machine so rough and dangerous that we can
use it only with every safety device attached.
“And so, Count,” he continued, to the Italian, “the administration of
the criminal law in our country may seem to you subject to delays and
indirections that are not justified. These abuses could be generally
corrected by an intelligent presiding judge; but, in part, they are
incidental to a fair and full investigation of the charge against the
prisoner. I think, however, that our conception of justice does not
differ from that of other nations.”
The old Count shrugged his shoulders at the digression.
“I beg your pardon,” he said. “I do not refer to the mere administration
of the criminal law in your country; though, monsieur, we have been
interested in observing its peculiarities in such notable examples as
the Thaw trials in New York, and the Anarchist cases in Chicago some
years ago. I believe the judge in the latter trial gave about one
hundred instructions on the subject of reasonable doubt--quite
intelligible, I dare say, to an American jury; but, I must confess,
somewhat beyond me in their metaphysical refinements.
“I should understand reasonable doubt if I were uninstructed, but I do
not think I could explain it. I should be, concerning it, somewhat as
Saint Augustine was with a certain doctrine of the Church when he said:
'I do not know if you ask me; but if you do not ask me I know very
well.'”
He paused and blew a tiny ring or smoke out over the terrace toward the
sea.
“There was a certain poetic justice finally in that case,” he added.
“The prisoners were properly convicted of the Haymarket murders,” said
the American Justice.
“Ah, no doubt,” returned the Count; “but I was not thinking of that.
Following a custom of your courts, I believe, the judge at the end
of the trial put the formal inquiry as to whether the prisoners had
anything to say. Whereupon they rose and addressed him for six days!”
He bowed.
“After that, monsieur, I am glad to add, they were all very properly
hanged.
“But, monsieur, permit me to return to my question: Do you think any
intelligent tribunal on this earth would acquit Bough of Oak of the
murder of Corporal Flint under the conditions I have indicated?”
“No,” said the American. “It would be a cold-blooded murder; and in the
end the creature would be executed.”
The old Count turned suddenly in his chair.
“Yes,” he said, “in a Continental court, it is certain; but in America,
monsieur, under your admirable law, founded on the common law of
England?”
“I am sure we should hang him,” replied the American.
“Monsieur,” cried the old Count, “you have me profoundly puzzled.”
It seemed to the little group on the terrace that they, and not the
Count, were indicated by that remark. He had stated a case about
which there could be no two opinions under any civilized conception of
justice. Sir Henry Marquis had pointed out the only element--a state of
war--which could distinguish the case from plain premeditated murder in
its highest degree. They looked to him for an explanation; but it did
not immediately arrive.
The Count noticed it and offered a word of apology.
“Presently--presently,” he said. “We have these two words in
Italian--sparate! and aspetate! Monsieur.”
He turned to the American:
“You do not know our language, I believe. Suppose I should suddenly call
out one of these words and afterward it should prove that a life hung
on your being able to say which word it was I uttered. Do you think,
monsieur, you could be certain?
“No, monsieur; and so courts are wise to require a full explanation
of every extraordinary fact. George Goykovich, an Austrian, having no
knowledge of the Italian language, swore in the court of an American
state that he heard a prisoner use the Italian word sparate! and that he
could not be mistaken.
“I would not believe him, monsieur, on that statement; but he explained
that he was a coal miner, that the mines were worked by Italians, and
that this word was called out when the coal was about to be shot down
with powder.
“Ah, monsieur, the explanation is complete. George Goykovich must know
this word; it was a danger signal. I would believe now his extraordinary
statement.”
The Count stopped a moment and lighted another cigarette.
“Pardon me if I seem to proceed obliquely. The incident is related to
the case I approach; and it makes clear, monsieur, why the courts of
France, for example, permit every variety of explanation in a
criminal trial, while your country and the great English nation limit
explanations.
“You do not permit hearsay evidence to save a man's life; with a fine
distinction you permit it to save only his character!”
“The rule,” replied the American justice, “everywhere among
English-speaking people is that the best evidence of which the subject
is capable shall be produced. We permit a witness to testify only
to what he actually knows. That is the rule. It is true there are
exceptions to it. In some instances he may testify as to what he has
heard.”
“Ah, yes,” replied the Count; “you will not permit such evidence to
take away a man's horse, but you will permit it to take away a
woman's reputation! I shall never be able to understand these delicate
refinements of the English law!”
“But, Count,” suggested Sir Henry Marquis, “reputation is precisely that
what the neighborhood says about one.”
“Pardon, monsieur,” returned the Count. “I do not criticize your
customs. They are doubtless excellent in every variety of way. I deplore
only my inability to comprehend them. For example, monsieur, why should
you hold a citizen responsible in all other cases only for what he does,
but in the case of his own character turn about and try him for what
people say he does?
“Thus, monsieur, as I understand it, the men of an English village
could not take away my pig by merely proving that everybody said it was
stolen; but they could brand me as a liar by merely proving what the
villagers said! It seems incredible that men should put such value on a
pig.”
Sir Henry Marquis laughed.
“It is not entirely a question of values, Count.”
“I beg you to pardon me, monsieur,” the Italian went on. “Doubtless, on
this subject I do nothing more than reveal an intelligence lamentably
inefficient; but I had the idea that English people were accustomed to
regard property of greater importance than life.”
“I have never heard,” replied the Englishman, smiling, “that our courts
gave more attention to pigs than to murder.”
“Why, yes, monsieur,” said the Count--“that is precisely what they have
been accustomed to do. It is only, I believe, within recent years that
one convicted of murder in England could take an appeal to a higher
court; though a controversy over pigs--or, at any rate, the pasture on
which they gathered acorns--could always be carried up.”
The great age of the Count--he seemed to be the representative in the
world of some vanished empire--gave his irony a certain indirection.
Everybody laughed. And he added: “Even your word 'murder,' I believe,
was originally the name of a fine imposed by the Danes on a village
unless it could be proved that the person found dead was an Englishman!
“I wonder when, precisely, the world began to regard it as a crime to
kill an Englishman?”
The parchment on the bones of his face wrinkled into a sort of smile.
His greatest friend on the Riviera was this pipe-smoking Briton.
Then suddenly, with a nimble gesture that one would not believe possible
in the aged, he stripped back his sleeve and exhibited a long, curiously
twisted scar, as though a bullet had plowed along the arm.
“Alas, monsieur,” he said, “I myself live in the most primitive
condition of society! I pay a tribute for life.... Ah! no, monsieur;
it is not to the Camorra that I pay. It is quite unromantic. I think my
secretary carries it in his books as a pension to an indigent relative.”