The circumstances of the case were these. The soldier, Shiboúnin, was a man of very limited intelligence, whose chief occupation was writing out reports. When he had any money he spent it on solitary drinking. The Captain in command of his company, a Pole, apparently disliked him, and frequently found fault with his reports and made him rewrite them. This treatment Shiboúnin bitterly resented; and one day, when he had been drinking, on being told to rewrite a document he had prepared, he insulted and struck the Captain. By law the penalty for a private who strikes his officer is death. Tolstoy nevertheless hoped to save the man's life, and obtained permission to plead on his behalf. The trial took place on 6th June, and the members of the court-martial were Colonel Únosha, Stasulévitch, and Kolokóltsef; the latter being merely a light-headed youngster.
Tolstoy, when telling me of the incident, remarked that of the four occasions on which he has spoken in public, this was the time that he did so with most assurance and satisfaction to himself. He had written out his speech; the main point of which was that Shiboúnin was not responsible for his actions, being abnormal, and having from the combined effect of intemperance and the monotony of his occupation, become idiotic and obsessed by an idea that his Company Commander did not understand report writing, and unfairly rejected work faultlessly done. The law decrees a mitigation of sentence for crimes committed by those who are not in the full possession of their senses; and as this contradicts the paragraph allotting death as the sole punishment for a soldier who strikes his officer, Tolstoy argued that mercy should be extended to the prisoner.
The Court adjourned to consider its verdict, and (as Tolstoy subsequently learnt) Stasulévitch was in favour of mercy. The Colonel, who was more of a military machine than a human being, demanded the death sentence, and the decision therefore rested with the boyish Sub-Lieutenant, who (submitting to his Colonel) voted for death.
Tolstoy wished to appeal (through his aunt, the Countess A. A. Tolstoy) to Alexander II for a pardon; but with characteristic disregard of details, he omitted to mention the name of the regiment in which the affair had occurred, and this enabled the Minister of War, Milútin, to delay the presentation of the petition until Shiboúnin had been shot; which occurred on 9th August. Tolstoy's appeal never, therefore, reached the Emperor.
In contrast with the action of the Colonel and the Minister, was that of the peasants of the district, who flocked in crowds to see the prisoner; bringing him milk, eggs, home-made linen and all the gifts their poverty could afford. When the day of execution arrived, Shiboúnin went quite impassively to his death; to all appearance incapable of understanding what was happening. The people thronged around the post to which he was to be tied—the women weeping and some of them fainting. They fetched a priest to perform Masses at his grave, and paid for the service to be repeated all day. At night contributions of copper money, linen, and candles such as are burnt in Russian churches, were laid upon his grave. Next day the Masses were recommenced, and were continued until the local police forbade any more religious services, and levelled the grave that the people might not continue to visit it.
The knowledge of such a difference between the spirit of the governors and the governed, helps us once again to understand Tolstoy's ultimate conviction that Government and the administration of law are essentially evil things, always tending to make the world worse and not better. In later life we may be sure he would not have been content to base his plea for mercy on merely legal grounds.
From time to time he continued to be troubled with ill-health; for instance, in July 1866 he writes that he is confined to the house with pains in the stomach which make it impossible for him to turn quickly.
In November—contrary to what he had often said in the past and was to return to in later life—he expresses his sense of the importance of authorship. Fet, criticising something in War and Peace, had quoted the words, irritabilis poetarum gens, and Tolstoy, replying 'Not I,' welcomes the criticism, begs for more, and goes on to say:
What have you been doing? Not on the Zémstvo [County Council] or in farming (all that is compulsory activity such as we do elementally and with as little will of our own as the ants who make an ant-hill; in that sphere there is nothing good or bad), but what are you doing in thought, with the mainspring of your being, which alone has been, and is, and will endure in the world? Is that spring still alive? Does it wish to manifest itself? How does it express its wish? Or has it forgotten how to express itself? That is the chief thing.
By the autumn of this year the railway southwards from Moscow to Koursk had been constructed as far as Toúla, making it easier to get from Yásnaya to Moscow, and to the rest of Europe. Yet Tolstoy comparatively seldom felt tempted to leave his much-loved, tranquil, busy, country life, in which alone he found himself able to work with the maximum of efficiency.