"ELEVEN MONTHS AND TEN DAYS"

It was a feeble old man of seventy-two this time who sat facing the jury, an old man with bent back, scant gray hair, and wistful, pleading eyes.

He had been arrested in the mountains of Kentucky and had been brought to Covington for trial, chained to another outlaw, one of those "moonshiners" who rob the great distilleries of part of their profits and the richest and most humane Government on earth of part of its revenue.

For eleven months and ten days he had been penned up in one of the steel cages of Covington jail.

I recognized him the moment I saw him.

He was the old fellow who spoke to me from between the bars of his den on my visit the week before to the inferno—the day I found Samanthy North and her baby—and who told me then he was charged with "sellin'" and that he "reckoned" he was the oldest of all the prisoners about him. He had on the same suit of coarse, homespun clothes—the trousers hiked up toward one shoulder from the strain of a single suspender; the waistcoat held by one button; the shirt open at the neck, showing the wrinkled throat, wrinkled as an old saddle-bag, and brown, hairy chest.

Pie still carried his big slouch hat, dust-begrimed and frayed at the edges. It hung over one knee now, a red cotton handkerchief tucked under its brim. He was superstitious about it, no doubt; he would wear it when he walked out a free man, and wanted it always within reach. Hooked in its band was a trout-fly, a red ibis, some souvenir, perhaps, of the cool woods that he loved, and which brought back to him the clearer the happy, careless days which might never be his again.

The trout-fly settled all doubts in my mind as to his origin and his identity. He was not a "moonshiner"; he was my old trout fisherman, Jonathan Gordon, come back to life, even to his streaming, unkempt beard, leathery skin, thin, peaked nose, and deep, searching eyes. That the daisies which Jonathan loved were at that very moment blooming over his grave up in his New Hampshire hills, and had been for years back, made no difference to me. I could not be mistaken. The feeble old man sitting within ten feet of me, fidgeting about in his chair, the glare of the big windows flooding his face with light, his long legs tucked under him, his bony hands clasped together, the scanty gray hair adrift over his forehead, his slouch hat hooked over his knee, was my own Jonathan come back to life. His dog, George, too, was somewhere within reach, and so were his fishing-pole and creel, with its leather shoulder-band polished like a razor-strop. You who read this never saw Jonathan, perhaps, but you can easily carry his picture in your mind by remembering some one of the other old fellows you used to see on Sunday mornings hitching their horses to the fence outside of the country church, or sauntering through the woods with a fish-pole over their shoulders and a creel by their sides, or with their heads together on the porch of some cross-roads store, bartering eggs and butter for cotton cloth and brown sugar. All these simple-minded, open-aired, out-of-doors old fellows, with the bark on them, are very much alike.

The only difference between the two men lay in the expression of the two faces. Jonathan always looked straight at you when he talked, so that you could fathom his eyes as you would fathom a deep pool that mirrored the stars. This old man's eyes wavered from one to another, lighting first on the jury, then on the buzzard of a District Attorney, and then on the Judge, with whom rested the freedom which meant life or which meant imprisonment: at his age—death. This wavering look was the look of a dog who had been an outcast for weeks, or who had been shut up with a chain about his throat; one who had received only kicks and cuffs for pats of tenderness—a cringing, pleading look ready to crouch beneath some fresh cruelty.

This look, as the trial went on and the buzzard of an attorney flapped out his denunciations, deepened to an expression of abject fear. In trying to answer the questions hurled at him, he would stroke his parched throat mechanically with his long fingers as if to help the syllables free themselves. In listening to the witnesses he would curve his body forward, one skinny hand cupped behind his ear, his jaw dropping slowly, revealing the white line of the lips above the straggling beard. Now and then as he searched the eyes of the jury there would flash out from his own the same baffled, anxious look that comes into dear old Joe Jefferson's face when he stops half-way up the mountain and peers anxiously into the eyes of the gnomes who have stolen out of the darkness and are grouping themselves silently about him—a look expressing one moment his desire to please and the next his anxiety to escape.

There was no doubt about the old man's crime, not the slightest. It had been only the tweedledum and tweedledee of the law that had saved him the first time. They would not serve him now. The evidence was too conclusive, the facts too plain. The "deadwood," as such evidence is called by the initiated, lay in heaps—more than enough to send him to State prison for the balance of his natural life. The buzzard of a District Attorney who had first scented out his body with an indictment, and who all these eleven months and ten days had sat with folded wings and hunched-up shoulders, waiting for his final meal—I had begun to dislike him in the Bud Tilden trial, but I hated him now (a foolish, illogical prejudice, for he was only doing his duty as he saw it)—had full control of all the "deadwood"; had it with him, in fact. There were not only some teaspoonfuls of the identical whiskey which this law-breaker had sold, all in an eight-ounce vial properly corked and labelled, but there was also the identical silver dime which had been paid for it. One of the jury was smelling this whiskey when I entered the court-room; another was fingering the dime. It was a good dime, and bore the stamp of the best and greatest nation on the earth. On one side was the head of the Goddess of Liberty and on the other was the wreath of plenty: some stalks of corn and the bursting heads of wheat, with one or two ivy leaves twisted together, suggesting honor and glory and achievement. The "deadwood"—the evidence—was all right. All that remained was for the buzzard to flap his wings once or twice in a speech; then the jury would hold a short consultation, a few words would follow from the presiding Judge, and the carcass would be ready for the official undertaker, the prison Warden.

How wonderful the system, how mighty the results!

One is often filled with admiration and astonishment at the perfect working of this mighty engine, the law. Properly adjusted, it rests on the bedplate of equal rights to all men; is set in motion by the hot breath of the people—superheated often by popular clamor; is kept safe by the valve of a grand jury; is governed in its speed by the wise and prudent Judge, and regulated in its output by a jury of twelve men.

Sometimes in the application of its force this machine, being man-made, like all machines, and thus without a soul, gets out of order, loosens a cog or bolt perhaps, throwing the mechanism "out of gear," as it is called. When this happens, the engine resting on its bed-plate still keeps its foundation, but some lesser part, the loom or lathe or driving-wheel, which is another way of saying the arrest, the trial or the conviction, goes awry. Sometimes the power-belt is purposely thrown off, the machinery stopped, and a consultation takes place, resulting in a disagreement or a new trial. When the machine is started again, it is started more carefully, with the first experience remembered. Sometimes the rightful material—the criminal, or the material from which the criminal is made—to feed this loom or lathe or driving-wheel, is replaced by some unsuitable material like the girl whose hair became entangled in a flying-belt and whose body was snatched up and whirled mercilessly about. Only then is the engine working on its bed-plate brought to a standstill. The steam of the boiler, the breath of the people, keeps up, but it is withheld from the engine until the mistake can be rectified and the girl rescued. The law of mercy, the divine law, now asserts itself. This law, being the law of God, is higher than the law of man. Some of those who believe in the man-law and who stand over the mangled body of the victim, or who sit beside her bed, bringing her slowly back to life, affirm that the girl was careless and deserved her fate. Others, who believe in the God-law, maintain that the engine is run not to kill but to protect, not to maim but to educate, and that the fault lies in the wrong application of the force, not in the force itself.

So it was with this old man. Eleven months and ten days before this day of his second trial (eleven months and three days when I first saw him), a flying-belt set in motion up in his own mountain-home had caught and crushed him. To-day he was still in the maw of the machinery, his courage gone, his spirit broken, his heart torn. The group about his body, not being a sympathetic group, were insisting that the engine could do no wrong; that the victim was not a victim at all, but lawful material to be ground up. This theory was sustained by the District Attorney. Every day he must have fresh materials. The engine must run. The machinery must be fed.

And his record?

Ah, how often is this so in the law!—his record must be kept good.

After the whiskey had been held up to the light and the dime fingered, the old man's attorney—a young lawyer from the old man's own town, a smooth-faced young fellow who had the gentle look of a hospital nurse and who was doing his best to bring the broken body back to life and freedom—put the victim on the stand.

"Tell the jury exactly how it all happened," he said, "and in your own way, just as you told it to me."

"I'll try, sir; I'll do my best." It was Rip's voice, only fainter. He tugged at his collar as if to breathe the easier, cleared his throat and began again. "I ain't never been in a place like this but once before, and I hope you'll forgive me if I make any mistakes," and he looked about the room, a flickering, half-burnt-out smile trembling on his lips.

"Well, I got a piece of land 'bout two miles back of my place that belongs to my wife, and I ain't never fenced it in, for I ain't never had no time somehow to cut the timber to do it, she's been so sickly lately. 'Bout a year ago I was goin' 'long toward Hi Stephens's mill a-lookin' for muskrats when I heard some feller's axe a-workin' away, and I says to Hi, 'Hi, ain't that choppin' goin' on on the wife's land?' and he said it was, and that Luke Shanders and his boys had been drawin' out cross-ties for the new railroad; thought I knowed it.

"Well, I kep' 'long up and come on Luke jes's he was throwin' the las' stick onto his wagon. He kinder started when he see me, jumped on and begin to drive off. I says to him, 'Luke,' I says, 'I ain't got no objection to you havin' a load of wood; there's plenty of it; but it don't seem right for you to take it 'thout askin', 'specially since the wife's kind o' peaked and it's her land and not yourn.' He hauled the team back on their hind legs, and he says:

"'When I see fit to ask you or your old woman's leave to cut timber on my own land, I will. Me and Lawyer Fillmore has been a-lookin' into them deeds, and this timber is mine;' and he driv off.

"I come along home and studied 'bout it a bit, and me and the wife talked it over. We didn't want to make no fuss, but we knowed he was alyin', but that ain't no unusual thing for Luke Shanders.

"Well, the nex' mornin' I got into Pondville 'bout eight o'clock and set a-waitin' till Lawyer Fillmore come in. He looked kind o' shamefaced when he see me, and I says, 'What's this Luke Shanders's been a-tellin' me 'bout your sayin' my wife's timberland is hisn?'

"Then he began 'splainin' that the 'riginal lines was drawed wrong and that old man Shanders's land, Luke's father, run to the brook and took in all the white oak on the wife's lot and——"

The buzzard sprang to his feet and shrieked out:

"Your Honor, I object to this rigmarole. Tell the jury right away"—and he faced the prisoner—"what you know about this glass of whiskey. Get right down to the facts; we're not cutting cross-ties in this court."

The old man caught his breath, placed his fingers suddenly to his lips as if to choke back the forbidden words, and, in an apologetic voice, murmured:

"I'm gettin' there's fast's I kin, sir, 'deed I am; I ain't hidin' nothin'."

He wasn't. Anyone could see it in his face.

"Better let him go on in his own way," remarked the Judge, indifferently. His Honor was looking over some papers, and the monotonous tones of the witness diverted attention. Most of the jury, too, had already lost interest in the story. One of the younger members had settled himself in his chair, thrust his hands into his pockets, stretched out his legs, and had shut his eyes as if to take a nap. Nothing so far had implicated either the whiskey or the dime; when it did he would wake up.

The old man turned a grateful glance toward the Judge, leaned forward in his chair, and with bent head looked about him on the floor as if trying to pick up the lost end of his story. The young attorney, in an encouraging tone, helped him find it with a question:

"When did you next see Mr. Fillmore and Luke Shanders?"

"When the trial come off," answered the old man, raising his head again. "Course we couldn't lose the land. 'Twarn't worth much till the new railroad come through; then the oak come handy for cross-ties. That's what set Fillmore and Luke Shanders onto it.

"When the case was tried, the Judge seed they couldn't bring no 'riginal deed 'cept one showin' that Luke Shanders and Fillmore was partners in the steal, and the Judge 'lowed they'd have to pay for the timber they cut and hauled away.

"They went round then a-sayin' they'd get even, though wife and I 'lowed we'd take anything reasonable for what hurt they done us. And that went on till one day 'bout a year ago Luke come into my place and said he and Lawyer Fillmore would be over the next day; that they was tired o' fightin', and that if I was willin' to settle they was.

"One o' the new Gov'ment dep'ties was sittin' in my room at the time. He was goin' 'long up to town-court, he said, and had jest drapped in to pass the time o' day. There he is sittin' over there," and he pointed to his captor.

"I hadn't never seen him before, though I know a good many of 'em, but he showed me his badge, and I knowed who he was.

"The nex' mornin' Lawyer Fillmore and Luke stopped outside and hollered for me to come out. I wanted 'em to come in. Wife had baked some biscuit and we was determined to be sociable-like, now that they was willin' to do what was fair, and I 'lowed they must drive up and git out. They said that that's what they come for, only that they had to go a piece down the road, and they'd be back agin in a half-hour with the money.

"Then Luke Shanders 'lowed he was cold, and asked if I had a drap o' whiskey."

At mention of the all-important word a visible stir took place in the court-room. The young man with the closed eyes opened them and sat up in his chair. The jury ceased whispering to one another; the Judge pushed his spectacles back on his forehead and moved his papers aside; the buzzard stretched his long neck an inch farther out of his shirt-collar and lowered his head in attention. The spigot, which up to this time had run only "emptyings," was now giving out the clear juice of the wine-vat. Each man bent his tin cup of an ear to catch it. The old man noticed the movement and looked about him anxiously, as if dreading another rebuff. He started to speak, cleared his throat, pulled nervously at his beard for a moment, glancing furtively about the room, and in a lower tone repeated the words:

"Asked if I had a drap o' whiskey. Well, I always take a dram when I want it, and I had some prime stuff my son Ned had sent me over from Frankfort, so I went hack and poured out 'bout four fingers in a glass, and took it out to him.

"After he drunk it he handed me back the glass and driv off, sayin' he'd be round later. I took the glass into the house agin and sot it 'longside the bottle on the mantel, and when I turned round there sot the Gov'ment dep'ty. He'd come in, wife said, while I was talkin' with Luke in the road. When he see the glass he asked if I had a license, and I told him I didn't sell no liquor, and he asked me what that was, and I told him it was whiskey, and then he got the bottle and took a smell of it, and then he held up the glass and turned it upside down and out drapped a ten-cent piece. Then he 'rested me!"

The jury was all attention now; the several exhibits were coming into view. One fat, red-faced juror, who had a dyed mustache and looked like a sporting man, would have laughed outright had not the Judge checked him with a stern look.

"You didn't put the dime there, did you?" the young attorney asked, in a tone that implied a negative answer.

"No, sir; I don't take no money for what I give a man." This came with a slight touch of indignation.

"Do you know who put it there?"

"Well, there warn't nobody but Luke Shanders could 'a' done it, 'cause nobody had the glass but him. I heard since that it was all a put-up job, that they had swore I kep' a roadside, and they had sot the dep'ty onto me; but I don't like to think men kin be so mean, and I ain't a-sayin' it now. If they knew what I've suffered for what they done to me, they couldn't help but feel sorry for me if they're human."

He stopped and passed his hands wearily over his forehead. The jury sat still, their eyes riveted on the speaker. Even the red-faced man was listening now.

For an instant there was a pause. Then the old man reached forward in his seat, his elbows on his knees, his hands held out as if in appeal, and in a low, pleading tone addressed the jury. Strange to say, neither the buzzard nor the Judge interrupted the unusual proceeding:

"Men, I hope you will let me go home now; won't you, please? I ain't never been 'customed all my life to bein' shut up, and it comes purty hard, not bein' so young as I was. I ain't findin' no fault, but it don't seem to me I ever done anythin' to deserve all that's come to me lately. I got 'long best way I could over there"—and he pointed in the direction of the steel cages—"till las' week, when Sam Jelliff come down to see his boy and told me the wife was took sick bad, worse than she's been yet. She ain't used to bein' alone; you'd know that if you could see her. The neighbors is purty good to her, I hear, but nobody don't understand her like me, she and me bein' so long together—mos' fifty years now. You'll let me go home, won't you, men? I git so tired, so tired; please let me go."

The buzzard was on his feet now, his arms sawing the air, his strident voice filling the courtroom.

He pleaded for the machine—for the safety of the community, for the majesty of the law. He demanded instant conviction for this trickster, this Fagin among men, this hoary-headed old scoundrel who had insulted the intelligence of twelve of the most upright men he had ever seen in a jury-box, insulted them with a tale that even a child would laugh at. When at last he folded his wings, hunched up his shoulders and sat down, and the echoes of his harsh voice had died away, it seemed to me that I could hear vibrating through the room, as one hears the murmur of a brook after a storm, the tender tones of the old man pleading as if for his life.

The jury had listened to the buzzard's harangue, with their eyes, not with their ears. Down in their hearts there still rang the piteous words. The man-made machine was breaking down; its mechanism out of "gear"; the law that governed it defective. The God-law, the law of mercy, was being set in motion.

The voice of the Judge trembled a little as he delivered his charge, as if somehow a stray tear had clogged the passage from his heart to his lips. In low, earnest tones that every man strained his ear to catch, he reviewed the testimony of the witnesses, those I had not heard; took up the uncontradicted statement of the Deputy Marshal as evidenced by the exhibits before them; passed to the motive behind the alleged conspiracy; dwelt for a moment on the age and long confinement of the accused, and ended with the remark that if they believed his story to be an explanation of the facts, they must acquit him.

They never left their seats. Even the red-faced man voted out of turn in his eagerness. The God-law had triumphed! The old man was free.

The throng in the court-room rose and made their way to the doors, the old man going first, escorted by an officer to see him safely outside. The Judge disappeared through a door; the clerk lifted the lid of his desk and stowed beneath it the greasy, ragged Bible, stained with the lies of a thousand lips. The buzzard crammed his hat over his eyes, turned, and without a word to anyone, stalked out of the room.

I mingled with the motley throng, my ears alert for any spoken opinions. I had seen the flying-belt thrown from the machine and the stoppage of the engine. I wanted now to learn something of the hot breath of the people who had set it in motion eleven months and ten days before.

"Reckon he'll cut a blue streak for home now," muttered a court-lounger, buttoning up his coat; "that is, if he's got one. You'll never catch him sellin' any more moonshine."

"Been me, I'd soaked him," blurted out a corner-loafer. "If you can't convict one of these clay-eaters when you've got him dead to rights, ain't no use havin' no justice."

"I thought Tom [the buzzard] would land him," said a stout, gray-whiskered lawyer who was gathering up his papers. "First case Tom's lost this week. Goes pretty hard with him, you know, when he loses a case."

"It would have been an outrage, sir, if he had won it," broke in a stranger. "The arrest of an old man like that on such a charge, and his confinement for nearly a year in a hole like that one across the street, is a disgrace. Something is rotten in the way the laws are administered in the mountains of Kentucky, or outrages like this couldn't occur."

"He wouldn't thank you, sir, for interfering," remarked a bystander. "Being shut up isn't to him what it is to you and me. He's been taken care of for a year, hasn't he? Warmed and fed, and got his three meals a day. That's a blamed sight more than he gets at home. They're only half-human, these mountaineers, anyway. Don't worry; he's all right."

"You've struck it first time," retorted the Deputy Marshal who had smelled the whiskey, found the dime, and slipped the handcuffs on the old man's withered wrists. "Go slow, will you?" and he faced the stranger. "We got to do our duty, ain't we? That's the law, and there ain't no way gittin' round it. And if we make mistakes, what of it? We've got to make mistakes sometimes, or we wouldn't catch half of 'em. The old skeesiks ought to be glad to git free. See?"

Suddenly there came to my mind the realization of the days that were to follow and all that they would bring to him of shame. I thought of the cold glance of his neighbors, the frightened stare of the children ready to run at the approach of the old jail-bird, the coarse familiarity of the tavern lounger. Then the cruelty of it all rose before me. Who would recompense him for the indignities he had suffered—the deadly chill of the steel clamps; the long days of suspense; the bitterness of the first disagreement; the foul air of the inferno, made doubly foul by close crowding of filthy bodies, inexpressibly horrible to one who had breathed all his life the cool, pure air of the open with only the big clean trees for his comrades?

And if at last his neighbors should take pity upon him and drive out the men who had wrecked his old age, and he should wander once more up the brook with his rod over his shoulder, the faithful dog at his heels, and a line of the old song still alive in his heart, what about those eleven months and ten days of which the man-law had robbed him?

O mighty machine! O benign, munificent law! Law of a people who boast of mercy and truth and equal rights and justice to all. Law of a land with rivers of gold and mountains of silver, the sum of its wealth astounding the world.

What's to be done about it?

Nothing.

Better drag a dozen helpless Samanthy Norths from their homes, their suckling babes in their arms, and any number of gray-haired old men from their cabins, than waive one jot or tittle of so just a code; and lose—the tax on whiskey.