Only seven were hanged
unnatural in the positions that the men about him were taking. There
could be no jury if the members were asleep. He looked again at the
waiter.
"The thought of a mock trial is preposterous and much that you have
said is _ex post facto_ and inadmissible."
"I assure you, this is not a mock trial."
The words, as well as the tone in which they were uttered, caused the
judge to stiffen.
"Explain yourself," he exclaimed with dignity.
"It will not take me long to do so. Practically all your club
members are now unconcerned with our talk. In a few moments only you
and I will be left for the discussion. Look, your secretary is about
to make his exit like the others."
It was true. The secretary was just then in the act of laying his
head on the table, as if overcome with slumber.
"What is the meaning of this?" demanded the judge sternly, rising
quickly to his feet. "Let me look at you!" he cried. "Have I seen
you previously?"
"You have."
"Where?"
"Sit down! Sit down! I shall tell you before we part. In the
meantime let me say that it was I who put something in the glasses of
these members so that they would not disturb us----"
"You have poisoned them!" cried the judge, aghast, as he subsided in
his chair; and in his excitement he began to call some of the members
by name.
There was no response to his shouting. All that was heard was their
heavy breathing; some, indeed, had ceased, apparently, to breathe at
all. They lay limp and lifeless in their chairs, or sprawled on the
table beside the glasses.
"You have poisoned them!" cried the judge for the second time.
The waiter shrugged his shoulders and took a flask from his pocket
and laid it on the table.
"In this flask," he said, calmly, "is an antidote to what I have
given your members in their whiskey. I came here this evening for
the purpose. I persuaded your waiter to let me have his post for one
evening so that I could carry out my intention----"
"You wretch! Was our waiter an accessory before the fact?"
"Never mind your waiter. I am here----"
"He compounded a felony!"
"Ah, always legal! We will discuss the meaning of the term felony
later on if you care----"
"Who are you?" cried the judge, rising again from his chair in
agitation.
"Sit down!"
It was more than an order. It was a threat. The judge obeyed.
"Do not fear that I have poisoned your drink," went on the waiter in
a kinder strain. "I am anxious that you shall have a fair trial."
"Trial!"
"Your club members are not dead."
"Not dead?"
"You shall have a chance to restore them to life."
The president of the Clue Club, who had almost given himself up for
lost and was about to throw himself on the waiter, breathed heavily.
"Before you involve yourself deeper," he said with an effort to
recover his dignity, "I wish to warn you that your actions----"
"Oh, I know what you are going to say. You are thinking of the first
of six divisions into which your Home Office has classified
crime--offenses against the person. Let it be. It reminds me of the
confusion in which this department is stumbling on the very matter
that brought me here."
"There will be no confusion in its estimate of your conduct," flashed
the judge, grimly. He was now beginning to see that he was in no
immediate danger and his judicial mentality was climbing back to its
balance.
The waiter stepped toward the mantelpiece, from which he took two
large candles set in old-fashioned holders. These he placed on the
table while the judge watched him with a puzzled, but rather anxious,
air. It seemed as if the president of the Clue Club was trying to
recall some incident, some memory, that refused to stir from the
depths of his profound legal mind. His concentration on this was
such as to drive all thought of resistance from him. He stroked his
cheek meditatively. He was no longer alarmed, merely uneasy. But
when the waiter snapped out the electric lights he gave vent to an
exclamation.
"What is the meaning of all this?"
"I will explain," replied the waiter, and his voice was now as sharp
as a whip. "I have lit these candles, both of which will burn for
twelve hours, because I do not wish outsiders, especially patrolling
police, to think that the Clue Club is having an all-night sitting.
The curtains will not show the light of the candles on the outside.
It is Christmas Eve. Can you tell me of a better way of spending the
occasion than by trying to prove to me the justice of judgment of
death? Christmas Eve! The Mass of Christ!"
The judge leaped to his feet, and this time he would have made an
attempt to overpower the waiter; but one thing prevented him. The
waiter had taken from the sideboard the bludgeon of Kartarus and was
holding it in readiness. The judge was thoroughly alarmed; but he
was not frightened. Again he obeyed the order to be seated.
"A mad waiter!" he thought. Aloud, in an endeavor to humor the man,
he said, "Lay down that weapon and let us argue about this."
"With all my heart; but I will retain the bludgeon. See, I will lay
it here."
As he placed the black bludgeon on the table the judge could not but
notice that it was within the waiter's reach and just beyond his own.
The waiter sat down facing the judge. The latter summoned his most
persuasive accents to his aid.
"But how can a trial take place when there are no counsel?"
"You yourself have a reputation for successful pleading. Are you not
recognized as an authority? And prisoners have been known to plead
on their own behalf."
"Of course, that is true. You are not unacquainted with procedure.
Am I to be a prisoner, then?"
"It would seem so."
"What is the charge?"
"The charge is that you, being a human being and an administrator of
the law, believe in and practice the sentence of judgment of death on
your fellows."
The judge stroked his chin as he considered.
"What is the penalty incurred in such a belief and practice?"
"Can you logically be blind to that?" asked the waiter, coldly and in
a penetrating voice.
"Oh! You would kill me!"
"Why not?"
A shiver, in spite of his self-command, passed through the judge.
All his doubts as to the earnestness of the man, or the seriousness
of the situation, vanished. He bent a keen, anxious look on the
waiter. If the latter was mad he did not show it outwardly. Yet the
position was outrageous; but it was inescapable.
"Supposing," said the judge, adroitly, but in a voice he hardly knew
as his own, "I asked you what logical right you have to assume the
authority of inflicting any penalty for a belief that is sanctioned
by law, what would you say?"
"I would say that I am surprised you do not observe the situation in
its true aspect. In this room the law you mention no longer has the
supreme word. _Pro tempore_ you must consider the position reversed."
"But surely it is illogical for you, who oppose the judgment of
death, to enunciate the very same penalty for believing in it?"
"Ah, you think you have made a point! Are you afraid of meeting the
fate you have assigned to others? Is it not quite logical that
similar retribution should fall on those who have upheld judgment of
death? It is such a belief that is on trial, not the opposite one.
Besides, while an established law is being overthrown there is
justice in hoisting guilty parties with their own petard, so to
speak. History is the best proof of this. But it has just occurred
to me--were you about to plead that you bow to my theory because of a
desire to save your life?"
"Well, if I did?"
"It would involve a solemn declaration that you would no longer
uphold the law. That would have certain consequences. You would, of
course, never go back on your word. It would mean considerable loss
financially and otherwise--and I would see that your word was kept."
Again the tone warned the judge that this man was not to be trifled
with.
"I see," said the judge.
"But do not think me unreasonable," went on the waiter. "The
situation, as I apprehend it, is this: you uphold the theory of
judgment of death. I oppose it. You are being tried for it. You
have not yet been found guilty. It lies with you whether you will
be. You complained just now of the absence of a jury. I shall give
you the opportunity of having a jury."
"Go on," said the judge, stirring himself and brightening
considerably.
"I have placed here a flask in which there is an antidote to the
lethargy now overcoming your fellow members. For every case out of
your own experience where you can prove the death penalty deserved
you shall have the right to recall one member of this club back from
unconsciousness. Is not that fair?"
"Ah," cried the judge, readily, "that is a reasonable factor." Then,
his hopes rising rapidly, he continued: "I do not wish to retreat
from my point of view. I have held office and have also my opinion
as a private individual. Perhaps I may convert you. It will not be
impossible to prove from the cases which have come before me--cases
in which I have donned the emblem of death, the black cap--that the
sentences were deserved. We may take these cases as typical."
"Very well. And for every case I show you that the sentence was
unjust I shall claim a member. That is, a member shall remain
unconscious."
The judge hesitated, and the waiter saw the reluctance to agree to
the condition.
"Are you afraid of failure?" he demanded.
"Not at all, but----"
"Then accept my challenge!"
The judge's face wrinkled, as observers had so often seen it wrinkle
in his court. The challenge was to his self-esteem as well as to his
forensic ability, both of which were of a high order. He gazed at
the unconscious members, then at the waiter. If only he had the aid
of one of his friends he could bring this unheard-of situation to a
satisfactory end. Had he been younger he would have tackled the man
single-handed. If only one of the members was in full possession of
his faculties!
"If I accept your challenge," he said at last and with a show of
condescension, "I shall argue the issue as I apprehend it. We
lawyers, you know, as the oath has it, do not admit any influence in
our minds, under any conditions, of any emotional character--no
passion, no affection----"
"What!" thundered the other. "Do you, then, eliminate emotion from
the fatherhood of your children?"
Astounded at the vehemence of the shout, the judge shrank. His face
blanched and it was some moments before the blood flowed back to his
features.
"You misunderstand," he said. "I am a bachelor."
"In that case," retorted the waiter, but in a calmer tone, "you have
a certain advantage over your learned brethren on the bench."
The judge was angry and ruffled at his own show of alarm. He was
indignant, too.
"I accept your challenge," he announced, sharply. "There is no need,
either, for me to rely entirely on my memory for the cases I shall
quote. They are mentioned in the minute-book of this club.... A
last point, however, arises. It is usual"--and his tone was gently
sarcastic--"in all cases about to be tried. Under what statute do
you make your charge?"
The reply came swiftly enough:
"Under the same authority as that on which you yourself rely--the
_lex talionis_ injunction of Mosaic law which is laid down in the
Book of Exodus, chapter twenty-one."
The judge stretched out his hand and opened the minute-book.
CHAPTER II
_The Judge States His First Case_
May it please your authority [began the judge in his best legal
manner as he turned over the pages of the minute-book and placed his
finger on a page] the case I am about to put before you is one of