"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."
"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 art 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!"
"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."
He turned to the American
"Believe me, monsieur, my estates in Salerno are not what they were; the olive trees are old and all drains on my income are a burden - even this gratuity. I thought I should be rid of it; but, alas, the extraordinary conception of justice in your country!"
He broke the cigarette in his fingers, and flung the pieces over the terrace.
"In the great range of mountains," he began, "slashing across the American states and beautifully named the Alleghanies, there is a vast measure of coal beds. It is thither that the emigrants from Southern Europe journey. They mine out the coal, sometimes descending into the earth through pits, or what in your language are called shafts, and sometimes following the stratum of the coal bed into the hill.
"This underworld, monsieur - this, sunless world, built underneath the mountains, is a section of Europe slipped under the American Republic. The language spoken there is not English. The men laboring in those buried communities cry out sparate when they are about to shoot down the coal with powder. It is Italy under there. There is a river called the Monongahela in those mountains. It is an Indian name."
"And so, monsieur, what happened along it doubtless reminded me of Cooper's story - Bough of Oak and the case of Corporal Flint."
He took another cigarette out of a box on the table, but he did not light it.
"In one of the little mining villages along this river with the enchanting name there was a man physically like the people of the Iliad; and with that, monsieur, he had a certain cast of mind not unHellenic. He was tall, weighed two hundred and forty pounds, lean as a gladiator, and in the vigor of golden youth.
"There were no wars to journey after and no adventures; but there was danger and adventure here. This land was full of cockle, winnowed out of Italy, Austria and the whole south of Europe. It took courage and the iron hand of the state to keep the peace. Here was a life of danger; and this Ionian - big, powerful, muscled like the heroes of the Circus Maximus - entered this perilous service.
"Monsieur, I have said his mind was Hellenic, like his big, wonderful body. Mark you how of heroic antiquity it was! It was his boast, among the perils that constantly beset him, that no criminal should ever take his life; that, if ever he should receive a mortal wound from the hand of the assassins about him, he would not wait to die in agony by it. He himself would sever the damaged thread of life and go out like a man!
"Observe, monsieur, how like the great heroes of legend - like the wounded Saul when he ordered his armor-bearer to kill him; like Brutus when he fell on his sword!"
He looked intently at the American.
"Doubtless, monsieur," he went on, "those near this man along the Monongahela did not appreciate his attitude of grandeur; but to us, in the distance, it seemed great and noble."
He looked out over the Mediterranean, where the great adventurers who cherished these lofty pagan ideals once beat along in the morning of the world.
"On an afternoon of summer," he continued like one who begins a saga, "this man, alone and fearless, followed a violator of the law and arrested him in a house of the village. As he led the man away he noticed that an Italian followed. He was a little degenerate, wearing a green hat, and bearing now one name and now another. They traversed the village toward, the municipal prison; and this creature, featured like a Parisian Apache, skulked behind.
"As they went along, two Austrians seated on the porch of a house heard the little man speak to the prisoner. He used the word sparate. They did not know what he meant, for he spoke in Italian; but they recognized the word, for it was the word used in the mines before the coal was shot down. The prisoner made his reply in Italian, which the Austrians did not understand.
"It seemed that this man who had made the arrest did not know Italian, for he stopped and asked the one behind him whether the prisoner was his brother. The man replied in the negative."
The Count paused, as though for an explanation. "What the Apache said was: `Shall I shoot him here or wait until we reach the ravine?' And the prisoner replied: `Wait until we come to the ravine.'
"They went on. Presently they reached a sort of hollow, where the reeds grew along the road densely and to the height of a man's head. Here the Italian Apache, the degenerate with the green hat, following some three steps behind, suddenly drew a revolver from his pocket and shot the man twice in the back. It was a weapon carrying a lead bullet as large as the tip of one's little finger. The officer fell. The Apache and the prisoner fled.
"The wounded man got up. He spread out his arms; and he shouted, with a great voice, like the heroes of the Iliad. The two wounds were mortal; they were hideous, ghastly wounds, ripping up the vital organs in the man's body and severing the great arteries. The splendid pagan knew he had received his death wounds; and, true to his atavistic ideal, the ideal of the Greek, the Hebrew and the Roman, the ideal of the great pagan world to which he in spirit belonged, and of which the poets sing, he put his own weapon to his head and blew his brains out."
The old Count, his chin up, his withered, yellow face vitalized, lifted his hands like one before something elevated and noble. After some moments had passed he continued
"On the following day the assassin was captured in a neighboring village. Feeling ran so high that it was with difficulty that the officers of the law saved him from being lynched. He was taken about from one prison to another. Finally he was put on trial for murder.
"There was never a clearer case before any tribunal in this world.
"Many witnesses identified the assassin - not merely English-speaking men, who might have been mistaken or prejudiced, but Austrians, Poles, Italians - the men of the mines who knew him; who had heard him cry out the fatal Italian word; who saw him following in the road behind his victim on that Sunday afternoon of summer; who knew his many names and every feature of his cruel, degenerate face. There was no doubt anywhere in the trial. Learned surgeons showed that the two wounds in the dead man's back from the big-calibered weapon were deadly, fatal wounds that no man could have survived.
"There was nothing incomplete in that trial.
"Everything was so certain that the assassin did not even undertake to contradict; not one statement, not one word of the evidence against him did he deny. It was a plain case of willful, deliberate and premeditated murder. The judge presiding at the trial instructed the jury that a man is presumed to intend that which he does; that whoever kills a human being with malice aforethought is guilty of murder; that murder which is perpetrated by any kind of willful, deliberate and premeditated killing is murder in the first degree. The jury found the assassin guilty and the judge sentenced him to be hanged."
The Count paused and looked at his companions about him on the terrace.
"Messieurs," he said, "do you think that conviction was just?"
There was a common assent. Some one said: "It was a cruel murder if ever there was one." And another: "It was wholly just; the creature deserved to hang."
The old Count bowed, putting out his hands.
"And so I hoped he would."
"What happened?" said the American.
The Count regarded him with a queer, ironical smile.
"Unlike the great British people, monsieur," he replied, "your courts have never given the pig, or the pasture on which he gathers his acorns, a consideration above the human family. The case was taken to your Court of Appeals of that province."
He stopped and lighted his cigarette deliberately, with a match scratched slowly on the table.
"Monsieur," he said, "I do not criticize your elevated court. It is composed of learned men - wise and patriotic, I have no doubt. They cannot make the laws, monsieur; they cannot coin a conception of justice for your people. They must enforce the precise rules of law that the conception of justice in your country has established.
"Nevertheless, monsieur" - and his thin yellow lips curled - "for the sake of my depleted revenues I could have wished that the decision of this court had been other than it was."
"And what did it decide?" asked the American.
"It decided, monsieur," replied the Count, "that my estates in Salerno must continue to be charged with the gratuity to the indigent relative.
"That is to say, monsieur, it decided, because the great pagan did not wait to die in agony, did not wait for the mortal wounds inflicted by the would-be assassin to kill him, that interesting person - the man in the green hat - was not guilty of murder in the first degree and could not be hanged!"
Note - See State versus Angelina; 80 Southeastern Reporter, 141: "The intervening responsible agent who wrongfully accelerates death is guilty of the murder, and not the one who inflicted the first injury, though in itself mortal."