Only seven were hanged
"There is just time," urged the waiter.
The judge was silent. He was really pondering how he could overcome
this man whom he believed to be mad. He was silent.
"Let me make a sporting offer," remarked the waiter, encouragingly.
"Do you feel depressed because I have won six of your men?"
Still the judge did not speak, though his countenance showed that he
was far from being happy.
"I will stake my six glasses against one for a final throw. Does
that appeal to you?"
The judge's head raised and his eyes showed a glint of hope.
"Explain yourself," he said.
"You heard me well enough. I will repeat the conditions of the
challenge we agreed to at the beginning of our evening's
entertainment. For every case you proved that the judgment of death
was deserved you were to gain a member's return to consciousness. I
have won six times. You, none. I propose now to stake my six points
against your ability to cite a case proving your claim. Thus you
will be entitled to a verdict. Is that clear?"
"Perfectly."
"And you accept the offer?"
The judge considered.
"If I should obtain the verdict," he said, "it would mean that you
had lost, for we cannot carry this discussion on a great deal longer."
"It would mean that I had lost," agreed the waiter.
"And that you were my prisoner?"
"Ah, that is a new element!"
"But it is a reasonable one."
"It was not on the cards, to begin with."
"You think the risk is too much!" pressed the judge, challengingly,
just as the waiter had challenged him at the start.
"I think it was not in the original issue. You were on trial."
"And now, supposing the positions are changed----"
"I cannot suppose anything of the sort. I was not guilty of
upholding the judgment of death code. It was you who were placed on
trial. The best you can expect is to be acquitted."
The judge bit his lip.
"Well, that is always something," he said, with a faint smile.
"It is perhaps more than you can expect--unless you have a remarkable
trump card up your sleeve which you have not shown. Am not I giving
you every opportunity to show that trump? Is it not a great risk I
am taking in making you this offer of the six points against one?"
"I appreciate its generosity. On the other hand----"
"It may mean that I have great faith in my own ability."
"Or none whatever in mine!"
"Precisely."
"I wonder which!"
"Ah!"
They were actually smiling to each other like two counsel engaged in
a lawsuit!
The judge turned over the pages of the minute-book, genial and
beaming. He looked at the recorded meetings rather critically,
apparently not quite sure which case to select. The waiter watched
him, and it was curious that the waiter no longer smiled. His face
became clouded and heavy, and his eye glinted cunningly.
"Are you in a difficulty as to the case you will choose?" he asked,
without looking directly at the judge.
"I must confess that I have a few here, the claims of which all seem
equally decisive."
"What about the case of the man who was hanged for shooting Goff, the
money-lender? There was what you, and the public, too, called an
unforgivable crime!"
The judge smiled.
"Thank you for reminding me. It certainly was a crime committed by a
man whose act showed the basest ingratitude for favors received."
He considered a moment, scrutinizing the face of the waiter, but that
person's countenance was without expression. The judge came to the
conclusion that, since they had been on almost good terms a few
moments previously, the waiter was generously suggesting a case where
the judge could, with ease, capture the six glasses. Thus the
evening would end in a truce, or rather in a deadlock; and the
adventure of Christmas Eve would end in both sides calling quits.
But the judge, while disposed to accept this conclusion in order to
recover his fellow members from their oblivion, did not intend to let
the matter rest there. Secretly he felt that he could not allow the
insults to which he had been subjected to go without correction. The
waiter had been grossly impudent. He had taken liberties that no
waiter, that no man, had any right to take. Besides he was an
admitted criminal. So the judge reflected that, for the time being,
he would pretend to let the affair blow over, he would have his
friends brought back to life, he would even allow the waiter to leave
the premises free. But the police must hear of this outrage without
delay so that such a state of things might never be repeated. They
would easily trace this waiter who had the aliases of Adam Jelks and
Lorry Black. Under these names his fingerprints would be on file.
And when he was caught and brought before the bench the judge would
read him a lecture and would give him a sentence--but not a very
severe one. Perhaps one in the second division. Just enough to
remind him that the law was not to be derided and trifled with. It
might be for the man's good to send him to preventive detention for a
space. Now, the shortest term of preventive detention was five
years. Well, was a judge to be insulted and the law to be held up to
ridicule? The thought of preventive detention brought the judge's
mind back to the murder case that had been suggested to him. He
breathed freely, yawned, and once more his deep tones sounded
throughout the apartment.
THE BLINDNESS OF JUSTICE
I am really indebted to you [said the judge] for recalling the murder
of Mr. Goff, the money-lender, although it is more than possible that
I would have selected this crime in any case. The murder and the
discovery of the murderer provide excellent examples of, first, the
patience and penetrative ability of the police, and, second, the
blindness of our justice. Especially does the second aspect appeal
to me, and I am sure you must admit that it is the most salient
feature of the case. No effort to thwart her decisions, no dodge to
influence her judgment, has any effect on the Ideal whose figure,
gilded and noble in proportions, stands on the highest pinnacle of
the Criminal Court, the scales of justice in her left hand, the sword
in her right, and her eyes bandaged to prove that impartiality and
intellectual discernment guide her always.
The man who was hanged for the murder of Mr. Goff, nevertheless, in
spite of proof that he was guilty of miserable ingratitude and a most
detestable crime, had the audacity to make a fight for his miserable
life that is memorable in the annals of our penal statutes. Several
defenses were brought forward. The first was that he was not
guilty--which, of course, is the formal plea of every criminal. One
takes little notice of this stereotyped defense, for it is merely the
basis of legal proof or disproof. But one defense--or part of the
whole defense--had to be argued very closely. This was the more or
less reliable data put in by the defending counsel that his client
was insane.
One mentions this because it was on that basis that the appeal
against the verdict of death went before the higher court. My
summing-up was also attacked on the ground that it was biased. Such
absurdity! What could possibly induce a judge to be biased one way
or the other? Nothing at all. The Court of Appeal made short work
of that suggestion and upheld my ruling. As for the plea of
insanity, that, too, was ridiculed, as it deserved to be. It has
become so common.
Perhaps it would be as well to state here the legal definition of
insanity, for I had to remind counsel of it more than once during the
trial. Up to 1843 the tests were rather crude, but when insanity was
pleaded with success on behalf of Daniel McNaghten--the man who shot
and killed Sir Robert Peel's private secretary in the belief that he
was shooting Sir Robert--it was realized that a close and clear
interpretation ought to be laid down. After due consideration a
number of judges, all learned and competent in law, pronounced that
an accused person was insane within the meaning of the term when he
"was laboring under such a defect of reason from disease of the mind
as not to know the nature and quality of the act he was doing, or, if
he did know, that he did not know he was doing wrong."
The waiter at this point raised his hand in interruption, and
remarked, bitterly:
"The definition is as clear as mud. In this it resembles many other
definitions laid down by learned lawyers. I could cite a number of
public men who, under that ruling, ought to be in criminal lunatic
asylums."
The judge did not take any notice of the criticism, but continued as
if he were explaining the law to an attentive jury:
Another step was taken as late as 1922 to define the term "insanity"
with even more exactitude. A special committee was appointed,
largely because the plea had become so usual, especially in murder
charges. This committee came to the decision that there was no
ground to sentence a mentally defective person for a criminal act
provided this defect "prevented him knowing that the act was
wrongful, or prevented him from controlling his own conduct."
Once more the waiter raised his expostulating hand and interrupted
with the biting words:
"A long way of admitting the existence of uncontrollable impulse. It
is the Lombroso theory denying individual responsibility, for who is
capable of always controlling his conduct? Yet you judges accept
this as law while disregarding it in practice."
Again the judge appeared not to hear the words of the waiter, in
which he seemed to observe, nevertheless, a hint of future
opposition. He went on with his story calmly and with dignity:
Let us now consider the crime itself and the remarkable circumstances
in which it was committed. We can best do so by putting ourselves in
the position of the police, who earned great credit by the method
used to find the guilty person.
Mr. Goff, the money-lender, occupied a house in a country district.
On this particular night he had several guests down from town, and
after they had all retired he went into his library at about ten
minutes to midnight. His purpose was to fill up some loan forms. He
sat down at his desk, facing a large French window that opened out to
the garden. The window was wide open, for the evening was warm.
Mr. Goff had just been seated in his chair when there was a knock on
his door and his manservant, a man named John Williams, thrust his
head into the room.
"Shall you want me any more tonight, sir?" he asked.
"No," replied Goff; then he added, "Are all the visitors in their
rooms?"
"I think so, sir."
"Very well. Lock up as usual and leave me."
Williams withdrew. Mr. Goff flourished his pen, took a sip from a
glass of refreshment at his elbow, and was about to begin writing
when a sound near the open French window caused him to look up.
A masked man was standing by the window with a revolver in his hand.
Before Goff could give a shout of alarm the revolver was fired. Goff
fell back into his chair with a bullet in his brain.
The intruder stepped to the safe, the open door of which attracted
him. He was wearing gloves. Opening the door wide, he rummaged in
the drawers, found several small bundles of banknotes, and pocketed
them. He pushed the door close again and walked to the French window.
According to the police reconstruction of the crime it was at this
stage, when he had already pulled off his gloves and had thrown his
gun away, that his eye caught something that startled him. The glass
at Mr. Goff's elbow had been upset when his arms sprawled outward,
and was rolling slowly toward the edge of the desk. The murderer
caught it before it fell and left it lying in the spilled liquor.
Then he disappeared.