V. The Man in the Green Hat
"Alas, monsieur, in spite of our fine courtesies, the conception ofjustice by one race must always seem outlandish to another!"
It was on the terrace of Sir Henry Marquis' villa at Cannes. Themembers of the little party were in conversation over their tobacco--theEnglishman, with his brier-root pipe; the American Justice, with aHavana cigar; and the aged Italian, with his cigarette. The last wasspeaking.
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. Awiry mustache, yellow with nicotine, alone remained. Great wrinkles laybelow the eyes and along the jaw, under a skin stretched like parchmentover the bony protuberances of the face.
These things established the aspect of old age; but it was the man'sexpression and manner that gave one the sense of incalculable antiquity.The eyes seemed to look out from a window, where the man behind them hadsat watching the human race from the beginning. And his manners hadthe completion of one whose experience of life is comprehensive andfinished.
"It seems strange to you, monsieur"--he was addressing, in French, theAmerican Justice--"that we should put our prisoners into an iron cage,as beasts are exhibited in a circus. You are shocked at that. It strikesyou as the crudity of a race not quite civilized.
"You inquire about it with perfect courtesy; but, monsieur, you inquireas one inquires about a custom that his sense of justice rejects."
He paused.
"Your pardon, monsieur; but there are some conceptions of justice in thelaw of your admirable country that seem equally strange to me."
The men about the Count on the exquisite terrace, looking down overCannes into the arc of the sea, felt that the great age of this man gavehim a right of frankness, a privilege of direct expression, theycould not resent. Somehow, at the extremity of life, he seemed beyondpretenses; and he had the right to omit the digressions by which youngermen 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 untilthe answer appears.
"Many years ago," he continued, "I read a story about the red Indians byyour author, Cooper. It was named 'The Oak Openings,' and was included,I think, in a volume entitled Stories of the Prairie. I believe I havethe names quite right, since the author impressed me as an inferiorcomer with an abundance of gold about him. In the story Corporal Flintwas captured by the Indians under the leadership of Bough of Oak, acruel and bloodthirsty savage.
"This hideous beast determined to put his prisoner to the torture of thesaplings, a barbarity rivaling the crucifixion of the Romans. Two smalltrees standing near each other were selected, the tops lopped off andthe 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 youngtrees; then the saplings were released and the victim, his arms wrenchedand dislocated, hung suspended in excruciating agony, like a man nailedto a cross.
"It was fearful torture. The strain on the limbs was hideous, yet thevictim might live for days. Nothing short of crucifixion--that beauty ofthe 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 somebrave would put an arrow into his heart, or dash his brains out with astone ax.
"In this he failed. Bough of Oak controlled his braves and CorporalFlint 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 hisfriend 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 thisearth, do you think the laws of any country would acquit him of themurder of Corporal Flint?"
The whole company laughed.
"I am entirely serious," continued the Count. "What do you think? Thereare three great nations represented here."
"The exigencies of war," said Sir Henry Marquis, "might differentiate abarbarity 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 benton murder. In other words, suppose this thing had occurred yesterday inone 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 remindsus that the criminal law is a machine so rough and dangerous that we canuse it only with every safety device attached.
"And so, Count," he continued, to the Italian, "the administration ofthe criminal law in our country may seem to you subject to delays andindirections that are not justified. These abuses could be generallycorrected by an intelligent presiding judge; but, in part, they areincidental to a fair and full investigation of the charge against theprisoner. I think, however, that our conception of justice does notdiffer 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 administrationof the criminal law in your country; though, monsieur, we have beeninterested in observing its peculiarities in such notable examples asthe Thaw trials in New York, and the Anarchist cases in Chicago someyears ago. I believe the judge in the latter trial gave about onehundred instructions on the subject of reasonable doubt--quiteintelligible, 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 donot think I could explain it. I should be, concerning it, somewhat asSaint 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 verywell.'"
He paused and blew a tiny ring or smoke out over the terrace toward thesea.
"There was a certain poetic justice finally in that case," he added.
"The prisoners were properly convicted of the Haymarket murders," saidthe 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 endof the trial put the formal inquiry as to whether the prisoners hadanything 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 properlyhanged.
"But, monsieur, permit me to return to my question: Do you think anyintelligent tribunal on this earth would acquit Bough of Oak of themurder of Corporal Flint under the conditions I have indicated?"
"No," said the American. "It would be a cold-blooded murder; and in theend 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 ofEngland?"
"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 theCount, were indicated by that remark. He had stated a case aboutwhich there could be no two opinions under any civilized conception ofjustice. Sir Henry Marquis had pointed out the only element--a state ofwar--which could distinguish the case from plain premeditated murder inits highest degree. They looked to him for an explanation; but it didnot immediately arrive.
The Count noticed it and offered a word of apology.
"Presently--presently," he said. "We ha
ve these two words inItalian--sparate! and aspetate! Monsieur."
He turned to the American:
"You do not know our language, I believe. Suppose I should suddenly callout one of these words and afterward it should prove that a life hungon 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 explanationof every extraordinary fact. George Goykovich, an Austrian, having noknowledge of the Italian language, swore in the court of an Americanstate that he heard a prisoner use the Italian word sparate! and that hecould not be mistaken.
"I would not believe him, monsieur, on that statement; but he explainedthat he was a coal miner, that the mines were worked by Italians, andthat this word was called out when the coal was about to be shot downwith powder.
"Ah, monsieur, the explanation is complete. George Goykovich must knowthis word; it was a danger signal. I would believe now his extraordinarystatement."
The Count stopped a moment and lighted another cigarette.
"Pardon me if I seem to proceed obliquely. The incident is related tothe case I approach; and it makes clear, monsieur, why the courts ofFrance, for example, permit every variety of explanation in acriminal trial, while your country and the great English nation limitexplanations.
"You do not permit hearsay evidence to save a man's life; with a finedistinction you permit it to save only his character!"
"The rule," replied the American justice, "everywhere amongEnglish-speaking people is that the best evidence of which the subjectis capable shall be produced. We permit a witness to testify onlyto what he actually knows. That is the rule. It is true there areexceptions to it. In some instances he may testify as to what he hasheard."
"Ah, yes," replied the Count; "you will not permit such evidence totake away a man's horse, but you will permit it to take away awoman's reputation! I shall never be able to understand these delicaterefinements of the English law!"
"But, Count," suggested Sir Henry Marquis, "reputation is precisely thatwhat the neighborhood says about one."
"Pardon, monsieur," returned the Count. "I do not criticize yourcustoms. They are doubtless excellent in every variety of way. I deploreonly my inability to comprehend them. For example, monsieur, why shouldyou 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 whatpeople say he does?
"Thus, monsieur, as I understand it, the men of an English villagecould not take away my pig by merely proving that everybody said it wasstolen; but they could brand me as a liar by merely proving what thevillagers said! It seems incredible that men should put such value on apig."
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, onthis subject I do nothing more than reveal an intelligence lamentablyinefficient; but I had the idea that English people were accustomed toregard property of greater importance than life."
"I have never heard," replied the Englishman, smiling, "that our courtsgave more attention to pigs than to murder."
"Why, yes, monsieur," said the Count--"that is precisely what they havebeen accustomed to do. It is only, I believe, within recent years thatone convicted of murder in England could take an appeal to a highercourt; though a controversy over pigs--or, at any rate, the pasture onwhich they gathered acorns--could always be carried up."
The great age of the Count--he seemed to be the representative in theworld 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 villageunless 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 tokill 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 possiblein the aged, he stripped back his sleeve and exhibited a long, curiouslytwisted scar, as though a bullet had plowed along the arm.
"Alas, monsieur," he said, "I myself live in the most primitivecondition 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 mysecretary 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; theolive trees are old and all drains on my income are a burden--even thisgratuity. I thought I should be rid of it; but, alas, the extraordinaryconception of justice in your country!"
He broke the cigarette in his fingers, and flung the pieces over theterrace.
"In the great range of mountains," he began, "slashing across theAmerican states and beautifully named the Alleghanies, there is a vastmeasure of coal beds. It is thither that the emigrants from SouthernEurope journey. They mine out the coal, sometimes descending into theearth through pits, or what in your language are called shafts, andsometimes following the stratum of the coal bed into the hill.
"This underworld, monsieur--this, sunless world, built underneath themountains, is a section of Europe slipped under the American Republic.The language spoken there is not English. The men laboring in thoseburied communities cry out sparate when they are about to shoot down thecoal with powder. It is Italy under there. There is a river called theMonongahela in those mountains. It is an Indian name."
He paused.
"And so, monsieur, what happened along it doubtless reminded me ofCooper'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 notlight it.
"In one of the little mining villages along this river with theenchanting 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 wasdanger and adventure here. This land was full of cockle, winnowed outof Italy, Austria and the whole south of Europe. It took courage and theiron 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 CircusMaximus--entered this perilous service.
"Monsieur, I have said his mind was Hellenic, like his big, wonderfulbody. Mark you how of heroic antiquity it was! It was his boast, amongthe perils that constantly beset him, that no criminal should ever takehis life; that, if ever he should receive a mortal wound from the handof the assassins about him, he would not wait to die in agony by it. Hehimself would sever the damaged thread of life and go out like a man!
"Observe, monsieur, how like the great heroes of legend--like thewounded Saul when he ordered his armor-bearer to kill him; like Brutuswhen he fell on his sword!"
He looked intently at the American.
"Doubtless, monsieur," he went on, "those near this man along theMonongahela did not appreciate his attitude of grandeur; but to us, inthe distance, it seemed great and noble."
He looked out over the Mediterranean, where the great adventurers whocherished these lofty pagan ideals once beat along in the morning of theworld.
"On an afternoon of summer," he continued like one who begins a saga,"this man, alone and fearless, followed a violator of the law andarrested him in a house of the village. As he led the man away henoticed that an Italian followed. He was a little degenerate, wearing agreen hat, and bearing now one name and now another. They traversed thevillage toward the municipal prison; and this creature, featured like aParisian Apache, skulked behind.
"As they went along, two Austrians seated on the porch of a house heardthe 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 recognizedthe word, for it was the word used in the mines before the coal was shotdown. The prisoner made his reply in Italian, which the Austrians didnot 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 hisbrother. The man replied in the negative."
The Count paused, as though for an explanation. "What the Apache saidwas: 'Shall I shoot him here or wait until we reach the ravine?' And theprisoner replied: 'Wait until we come to the ravine.'
"They went on. Presently they reached a sort of hollow, where the reedsgrew along the road densely and to the height of a man's head. Here theItalian Apache, the degenerate with the green hat, following some threesteps behind, suddenly drew a revolver from his pocket and shot the mantwice in the back. It was a weapon carrying a lead bullet as large asthe tip of one's little finger. The officer fell. The Apache and theprisoner fled.
"The wounded man got up. He spread out his arms; and he shouted, with agreat voice, like the heroes of the Iliad. The two wounds were mortal;they were hideous, ghastly wounds, ripping up the vital organs in theman's body and severing the great arteries. The splendid pagan knew hehad received his death wounds; and, true to his atavistic ideal, theideal of the Greek, the Hebrew and the Roman, the ideal of the greatpagan 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, liftedhis hands like one before something elevated and noble. After somemoments had passed he continued:
"On the following day the assassin was captured in a neighboringvillage. Feeling ran so high that it was with difficulty that theofficers of the law saved him from being lynched. He was taken aboutfrom 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-speakingmen, who might have been mistaken or prejudiced, but Austrians, Poles,Italians--the men of the mines who knew him; who had heard him cry outthe fatal Italian word; who saw him following in the road behind hisvictim on that Sunday afternoon of summer; who knew his many names andevery feature of his cruel, degenerate face. There was no doubt anywherein the trial. Learned surgeons showed that the two wounds in the deadman's back from the big-calibered weapon were deadly, fatal wounds thatno man could have survived.
"There was nothing incomplete in that trial.
"Everything was so certain that the assassin did not even undertake tocontradict; not one statement, not one word of the evidence against himdid he deny. It was a plain case of willful, deliberate and premeditatedmurder. The judge presiding at the trial instructed the jury that a manis presumed to intend that which he does; that whoever kills a humanbeing with malice aforethought is guilty of murder; that murder which isperpetrated by any kind of willful, deliberate and premeditated killingis murder in the first degree. The jury found the assassin guilty andthe 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 everthere was one." And another: "It was wholly just; the creature deservedto 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 courtshave 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 Courtof Appeals of that province."
He stopped and lighted his cigarette deliberately, with a matchscratched slowly on the table.
"Monsieur," he said, "I do not criticize your elevated court. It iscomposed of learned men--wise and patriotic, I have no doubt. Theycannot make the laws, monsieur; they cannot coin a conception of justicefor your people. They must enforce the precise rules of law that theconception of justice in your country has established.
"Nevertheless, monsieur"--and his thin yellow lips curled--"for the sakeof my depleted revenues I could have wished that the decision of thiscourt had been other than it was."
"And what did it decide?" asked the American.
"It decided, monsieur," replied the Count, "that my estates in Salernomust continue to be charged with the gratuity to the indigent relative.
"That is to say, monsieur, it decided, because the great pagan did notwait to die in agony, did not wait for the mortal wounds inflicted bythe would-be assassin to kill him, that interesting person--the man inthe green hat--was not guilty of murder in the first degree and couldnot be hanged!"
Note--See State versus Angelina; 80 Southeastern Reporter, 141: "Theintervening responsible agent who wrongfully accelerates death is guiltyof the murder, and not the one who inflicted the first injury, though initself mortal."