The Turn of the Balance

"Mr. Marriott, the court is waiting," said Glassford.

"If your Honor will indulge us a moment." Then Marriott whispered to Archie.

"Je's," said Archie. "Looks cheesy to me. Looks to me like a lot o' rummy blokes. They've got it all framed up now. Them old hoosiers would cop the cush all right." Archie whispered with the sneering cynicism of one who holds the belief of the all-powerful influence of money. "That old harp back there in the corner with the green benny on, he looks like a bull to me. Go after him and knock him off."

Archie had indicated quite openly an aged Irishman who sat huddled in a faded overcoat in the rear row. He had white chin-whiskers and a long, broad, clean-shaven upper lip.

"Mr. McGee," said Marriott, rising, "what business are you in?"

"Oi'm retired, sor."

"Were you ever on the police force?"

"Well, sor," said McGee uneasily, "Oi wor wance, sor–yes, sor."

He looked up now with a nonchalant air.

"How long were you on the force?"

"Twinty-wan years, sor."

Marriott questioned him at length, finally challenged him for cause; Eades objected, they argued, and Glassford overruled the challenge. Then, having certainly offended McGee, there was nothing for Marriott to do but to submit a peremptory challenge.

By night the venire was exhausted and Glassford ordered a special venire. With the serving of the special venires, a difference was noted; whereas the men on the first venire had studied how they should qualify themselves for jury service, the men whom Bentley and his deputies now haled into court, studied how they should disqualify themselves. They were all impatient of the senseless tedium, of the costly interruption, being men with real work to do. They replied like experts; all had read of the case, all had formed and expressed opinions, and their opinions could not be shaken by any evidence that might be adduced. Glassford plied them with metaphysical questions; drew psychological distinctions; but in vain. Many of them had scruples against capital punishment; a score of them, fifty of them swore to this, to the delight but disappointment of Marriott, the discomfiture of Eades, the perplexity of Glassford, and the dull amazement of the men in the jury-box, who had no conscientious scruples against anything. Still others had certificates of various kinds exempting them from jury service, which they exhibited with calm smiles and were excused.

Marriott eked out his precious peremptory challenges for three days; venire after venire was issued, and Bentley was happy, for all this meant fees. The crowd diminished. The lawyers grew weary and no longer exerted themselves to say clever things. The sky, which had sparkled a cold, frosty blue for days, was overcast with gray clouds, the atmosphere was saturated with a chill and penetrating moisture. This atmosphere affected men strangely. Eades and Marriott had a dispute, Danner ordered Archie to sit erect, Glassford sharply rebuked two citizens who did not believe in capital punishment for their lack of a sense of civic duty; then he whirled about in his chair and exclaimed angrily:

"We'll not adjourn to-night until we have a jury!"

Marriott had one peremptory challenge left, and eleven men had been accepted. It was now a matter of luck.

"George Holden," called the clerk.

A broad-shouldered man of medium height came promptly forward, took the oath, leaned back in his chair, crossed his legs, folded his strong hands in his lap, and raised a pair of deep blue eyes to Eades. As he sat there, something in the poise of his fine head, with its thick curly hair, claimed attention; interest revived; every one looked at him. He had a smooth-shaven face and a wide white brow, and the collar of his dark flannel shirt was open, freeing his strong neck and ample throat. Marriott suddenly conceived a liking for the man.

"What is your occupation, Mr. Holden?" asked Eades.

"Machinist."

He had read the newspaper accounts of the murder of Kouka and of the Flanagan tragedy, but he had not formed any real opinions; he may have formed impressions, but he could lay them aside; he didn't go much anyway, he said, on what he read in the newspapers.

The formal questions were put and answered to Eades's satisfaction; then came the real question:

"Are you opposed to capital punishment?"

"Yes, sir, I am."

"Are your scruples conscientious ones?"

"Yes, sir."

"And not to be overcome?"

"They are not to be overcome."

Just then Glassford, impatient of all these scruples he was hearing so much about, whirled on Holden with a scowl. Holden turned; his blue eyes met those of Glassford.

"You don't want to sit on this jury, do you?" demanded Glassford.

"No, sir."

"It would interfere with your business, wouldn't it?"

"No, sir."

"It wouldn't? You earn good wages, don't you?"

"I'm out of a job now, sir."

"Well, are your scruples such that you can't lay them aside long enough to do your duty as a citizen?"

Holden flushed.

"I can't lay them aside, no; but it doesn't follow that I can't do my duty as a citizen."

"But," began Glassford in his tone of legal argument, "assuming that the law as it is should be altered, nevertheless, knowing the law, can you lay aside your private views and perform a public duty by applying this law to a given state of facts as the court instructs you?–You understand me, do you?"

"I understand perfectly, sir."

"Well, what do you say?"

"I have no private views that are not public ones; I can't see any distinction. I say that I would not take an oath that might oblige me to vote to kill a man."

The atmosphere became tense.

"But assuming you had taken an oath, would you rather break that oath than discharge your duty?"

"I wouldn't take such an oath."

"Then you place your private opinions above the law, do you?"

"In this instance, I do. I don't believe in that law, and I won't help enforce it."

"You mean,"–Glassford was plainly angry–"that you wouldn't take an oath to enforce a law you didn't believe in?"

"That's just what I mean."

Glassford looked an instant at Holden as if trying to decide what he had better do with him for these heresies. Holden's blue eyes were steady; they returned Glassford's gaze, seeming scarcely to wink. And just then Eades, fearing the effect of the man's scruples on the jury, thought best to relieve the situation.

"We submit a challenge for cause," he said.

"Allowed," Glassford snapped. "We don't want such men as you on juries."

He whirled about in his chair, turned his back on Holden, and as Holden walked directly from the courtroom, the eyes of all followed him, with a strange interest in a man who was considered unfit for jury service because he had principles he would not forego.

"Samuel Walker," called Gard.

An aged, doddering man tottered to the chair. He scarcely spoke in answer to Eades's questions; when he did, it was in the weak, quavering voice of senility. He had no occupation, knew none of the lawyers, had no knowledge of the case, had neither formed nor expressed opinions, and had no scruples against capital punishment.

"You believe that the laws should be executed and upheld?" said Eades in an insinuating tone.

"Heh?" said the old man, leaning forward with an open palm behind his hairy ear.

Eades repeated the question and the fellow nodded.

Marriott turned in disgust from this stupid, senile man who was qualified, as impatiently as Glassford had turned from the intelligent man who was disqualified. And then, just as Walker was making for the jury-box, Marriott used his last peremptory challenge.

A moment later he saw his mistake. Gard was calling a name he knew.

"William A. Broadwell."

The short winter afternoon was closing in. For half an hour shadows had been stealing wearily through the room; the spectators had become a blurred mass, the jurymen lounging in the box had grown indistinct in the gloom. For some time, the green shade of the electric lamp on the clerk's desk had been glowing, but now, as Broadwell came forward, the old bailiff, shuffling across the floor, suddenly switched on the electricity, and group by group, cluster by cluster, the bulbs sprang into light, first in the ceiling, then on the walls, then about the judge's bench. There was a touch of the theatrical in it, for the lights seemed to have been switched on to illuminate the entrance of this important man.

He was sworn and took the witness-chair, which he completely filled, and clasped his white hands across his round paunch with an air that savored of piety and unction. The few gray hairs glistening at the sides of his round bald head gave it a tonsured appearance; fat enfolded his skull, rounding at his temples, swelling on his clean-shaven, monkish cheeks, falling in folds like dewlaps over his linen collar. He sat there with satisfaction, breathing heavily, making no movement, excepting as to his thin lips which he pursed now and then as if to adjust them more and more perfectly to what he considered the proper expression of impeccability. Marriott was utterly sick at heart. For he knew William A. Broadwell, orthodox, formal, eminently respectable, a server on committees, a deacon with certain cheap honors of the churchly kind, a Pharisee of the Pharisees.

In his low solemn voice, pursing his lips nicely after each sentence as if his own words tasted good to him, Broadwell answered Eades's questions; he had no opposition to capital punishment, indeed, he added quite gratuitously, he believed in supporting it; he had great veneration for the law, and–oh, yes, he had read accounts of the murder; read them merely because he esteemed it a citizen's duty to be conversant with affairs of the day, and he had formed opinions as any intelligent man must necessarily.

"But you could lay aside those opinions and reach a conclusion based purely on evidence, of course, Mr. Broadwell?"

"Oh, yes, sir," said Broadwell, with an unctuous smile that deprecated the idea of his being influenced in any but the legitimate way.

"We are thoroughly satisfied with Mr. Broadwell, your Honor," said Eades.

"One minute, Mr. Broadwell," began Marriott.

Glassford looked at Marriott the surprise he felt at his presumption, and Marriott felt an opposition in the room. Broadwell shifted slightly, pursed his lips smugly and looked down on Marriott with his wise benevolence.

"Mr. Broadwell, you say you read the accounts of the tragedy?"

"Yes."

"Did you read all of them?"

"I believe so."

"Read the report of the evidence given on the preliminary hearing?"

"Yes."

"Read the editorials in the Courier?"

"Yes."

"You respect its opinions?"

"I do, yes."

"Your pastor preached a sermon on this case, did he not?"

"He made applications of it in an illustrative way."

"Quite edifying, of course?"

Marriott knew he had made a mistake, but the impulse to have this fling had been irresistible. Broadwell bowed coldly.

"And all these things influenced you?"

"Yes."

"Exactly. And on them you have formed an opinion respecting the guilt or innocence of this young man?"

Broadwell cast a hasty sidelong glance at Glassford, as if this had gone quite far enough, but he said patiently:

"Yes."

"And it would require evidence to remove that opinion?"

"I presume it would."

"You know it would, don't you?"

"Yes."

"We submit a challenge for cause, your Honor," said Marriott.

Glassford turned to Broadwell with an air that told how speedily he would make an end of this business.

"You have talked with none of the witnesses, Mr. Broadwell?"

"Oh, no, sir," said Broadwell, smiling at the absurdity.

"The accounts you read were not stenographic reports of the evidence?"

"No, sir; abstracts, rather, I should say."

"Exactly. Were the conclusions you came to opinions, or mere impressions?"

"Mere impressions I should say, your Honor."

"They are not to be dignified by the name of opinions?"

"Hardly, your Honor."

"If they were, you could lay them aside and try this case on its merits, basing your judgment on the evidence as it is adduced, and on the law as the court shall declare it to you?"

"Certainly, your Honor."

Glassford turned away.

"If the court," he said, "had any doubts in this matter, they would be resolved in favor of the defendant, but the court has none. My own knowledge of Mr. Broadwell and of his standing in the community leads me to declare that he is the very man for such important service, and the court feels that we are to be congratulated on having him to assist us in trying this case. The challenge is overruled. You may take your seat in the jury-box, Mr. Broadwell."

Glassford consulted his notes; the peremptory challenges were all exhausted now.

"The jury will rise and be sworn," he said.

Marriott had suffered his first defeat. He looked at the jury. A change had taken place; these twelve men no longer impressed him as an institution grown old and gray with the waste of ages. They no longer held for him any symbolic meaning; little by little, during the long, tedious hours, individualities had developed, the idea of unity had receded. Seen thus closely and with increasing familiarity, the formal disappeared, the man emerged from the mass, and Marriott found himself face to face with the personal equation. He sat with one arm thrown over the back of his chair and looked at them, watching, as it were, this institution disintegrate into men, merely; men without the inspiration of noble ideals, swayed by primitive impulses, unconsciously responsive to the obscure and mysterious currents of human feeling then flowing through the minds of the people, generating and setting in motion vague, terrible and irresistible powers. He could feel those strange, occult currents moving in him–he must set himself against them that he might stand, though all alone, for the ignorant boy whose soul had strayed so far.

He studied the faces of the twelve men, trying to discover some hope, some means of moving and winning them. There was old McGiffert, who alone of all the first venire had withstood the mutations of the last four days, sitting serene and triumphant, sure of his two dollars a day, utterly unconscious of the grave and tragic significance of the responsibilities he had been so anxious to assume. There was Osgood, the contractor, a long row of cigars, a tooth-brush, and a narrow comb sticking out of his waistcoat pocket; Duncan, with his short sandy hair covering sparsely a red scalp that moved curiously when he uttered certain words; Foley, constantly munching his tobacco, as he had been doing for sixty years, so that when he spoke he did so with closed lips; Slade, the man with the rough red face, who found, as Marriott had at first thought, amusement in everything, for he smiled often, showing his gums and a row of tiny unclean teeth; there was Grey, constantly moving his false teeth about in his mouth; Church, with thin gray hair, white mustache and one large front tooth that pressed into his lower lip; and then Menard, the grocer's clerk, wearing black clothes that long ago had passed out of fashion; his sallow, thin, unhealthy face wearing an expression of fright. Marriott recalled how uncertain Menard had been in his notions about capital punishment; how, at first, he had said he was opposed to it, and how at last, under Glassford's metaphysical distinctions, the boy had declared that he would do his duty. Marriott had been encouraged, thinking that Menard's natural impulses might reassert themselves, but now, alas, he recognized that Menard in the hands of other men would be but the putty he so much resembled. Then there were Reder, the gray old German, and Chisholm and McCann, the aged farmers with the unkempt beards, and Broadwell–ah, Broadwell! For it was Broadwell who held Marriott's gaze at last, as he held his interest; it was Broadwell, indeed, who was that jury. Naturally stronger than the rest, his reputation, his pomposity, the character Glassford had generously given him–all these marked him as the man who would reach that jury's verdict for it, and then, as foreman, solemnly bear it in. Marriott looked at him, smug, sleek, overfed, unctuous, his shining bald head inclined at a meek angle, his little eyes half closed, his pendulous jowls hiding his collar, and realized that this was the man to whom he had to try Archie's case, and he would rather have tried the case to any other man in town. He wished that he had used his challenges differently; any other twelve of the two hundred men who had been summoned would have served his purpose better; he had a wild, impotent regret that he had not allowed the last man to remain before Broadwell suddenly appeared. Broadwell was standing there now with the others, his hand raised, his head thrown back, stretching the white flabby skin of his throat like a frog's, his eyes closed, as if he were about to pronounce a benediction on Archie before sending him to his doom.

Gard was repeating the oath:

"'You and each of you do solemnly swear that you will well and truly try and true deliverance make in the cause now pending, wherein the State is plaintiff and Archie Koerner is defendant, s'elp you God.'"

Broadwell bowed, as if for the jury; Marriott almost expected him to say "Amen."

XIV

The next morning there were the same eager, impatient crowds, but there were yet other preliminaries; the case must now be stated to the jury. And Eades, speaking solemnly, told the jury of the pursuit of Archie and the death of Kouka, all of which had been repeated many times. He spoke of the importance of government, of the sacredness of human life, how heinous a sin it is to kill people, and how important it was to put Archie to death immediately in order that this truth might be better understood, how serious were the juror's duties, how disagreeable his own duties, and so forth. Then he began to describe the murder of Margaret Flanagan, but Marriott objected. They wrangled over this for some time, and, indeed, until Eades, assured that the jurors had been sufficiently reminded of the Flanagan murder, felt satisfied. Then Marriott stated the case for the defense, and finally, that afternoon, the trial began in earnest.

Bentley, following his elaborate system of arrangement, bustled about with a deputy at hand so that he could command him, pushed back the crowd, locked the doors, and thereafter admitted no one unless he wished to. The spectators filled the space outside the bar, and encroached on the space within, forming a dense, closely-packed circle in the center of which were the jury, the lawyers at their tables, Archie and Danner, the reporters, the old stenographer, and Glassford looking down from the bench. The spectators in a strained, nervous silence stared into the pit where the game was to be played, the game for which Eades and Marriott were nerving themselves, the game that had Archie's life for its colossal stake.

But as the afternoon wore on, expectations were not realized; the interest flagged. It was seen that the sensations would not come for days, the proceedings were to move slowly and with a vast and pompous deliberation to their unrevealed climax. Eades called as witnesses several laborers who had been of the crowd that pursued Archie and Curly down the tracks that morning. After them came Weber, the coroner, a fleshy man with red face and neck, who described the inquest, then his official physician, Doctor Zimmerman, a young man with a pointed beard, who wore three chains on his breast, one for the eye-glasses he was constantly readjusting, another for his clinical thermometer, and another for his watch. He gave the details of the post-mortem examination, described the dissection of Kouka's body, and identified the bullet.

The crowd pressed forward, trying to find some sensation in the ghastly relic. Eades gave the bullet to the nearest juryman, who examined it carefully and passed it on. It went from hand to hand of the jurymen, each rolled it in his palm, studied it with a look of wisdom; finally it returned to Eades. And the jurors leaned back in their chairs, convinced that Kouka was dead.

The next morning there were other laborers, other physicians, then railroad detectives, who identified the revolver. The day wore away, the atmosphere of the court-room became heavy and somnolent. As skilfully as he could, Eades drew from his witnesses their stories, avoiding all questions that might disclose facts to Archie's advantage, and Marriott battled with these hostile witnesses in long cross-examinations, seeking in vain for some flaw, some inconsistency. The tedium told on the nerves,–Eades and Marriott had several quarrels, exchanged insults, Glassford was petulant, the stolid jurymen exhaled breaths as heavy as snores. Another day came, and judge and lawyers began with steadier nerves, more impersonal and formal manners; they were able to maintain a studious courtesy, the proceedings had an institutional character, something above the human, but as the day advanced, as the struggle grew more intense, as the wrangling became more frequent, it was seen that they were but men, breaking down and giving way to those passions their calm and stately institution condemned and punished in other men.

And through it all Archie sat there silent, and, as the newspaper men scrupulously reported each day, unmoved. But Marriott could hear him breathe, and when occasionally he glanced at him, could see tiny drops of moisture glistening on his brow, could see the cords swelling in his neck, could even hear the gurgle in his throat as he tried to swallow. Archie rarely spoke; he glanced at the witnesses, now and then at the jurors, but most of all at Eades. Thus far, however, the testimony had been formal; there was yet no evidence of premeditation on Archie's part, and that was the vital thing.

XV

And yet Marriott knew better than to hope. As he walked to the court-house Monday morning, he wondered how he was to get through the week. He looked on those he met as the strangely happy and favored beings of another world, and envied them keenly, even the ragged outcasts shoveling the newly-fallen snow from the sidewalks. And there in the upper corridor was that hated crowd, that seemed to be in league with Eades, Glassford, the jury, the police, the whole machinery of the state, to kill Archie, to stamp his identity out of the world. Just then the crowd gyrated in precipitated interest, and he saw Bentley and Danner bringing Archie down the hall, all three stamping the snow from their boots. And he saw another figure, new to him, but one that instantly filled him with strange foreboding. Why, he could not tell, but this was the effect of the figure that shambled down the corridor. The man was alone, a tall gaunt form in rough gray clothes, with a long gray face, walking in loose gangling strides, flinging his huge feet one after the other, leaving moist tracks behind him. A hickory cane dangled by its crook from his left arm, he slowly smoked a cigar, taking it from his mouth occasionally with an uncouth gesture. As he swung along in his awkward, spraddling gait, his frame somehow conveyed paradoxically an impression of strength. It seemed that at any moment this man was in danger of coming apart and collapsing–until Marriott caught his restless eye.

Archie had seen him the instant he entered the corridor. Marriott detected Archie's recognition, and he looked intently for some inkling of the meaning. The man, in the same instant, saw Archie, stopped, took his cigar from his lips, spat, and said in a peculiar, soft voice:

"Why, Archie, my boy."

This incident deepened Marriott's foreboding. A few moments later, as the bailiff was opening court, the man entered with a familiar and accustomed air, and Bentley got a chair and made him comfortable so that he might enjoy the trial.

"Who's that man?" Marriott whispered to Archie.

"That? That's old Jimmy Ball, the deputy warden at the pen."

"What do you suppose–"

"He's here to knock, that's what. He's here to rap ag'in me, the old–"

Archie applied his ugly epithet with an expression of intensest hatred, and glared at Ball. Now and then Archie repeated the epithet under his breath, trying each time to strengthen it with some new oath.