The Empty Sack

by Basil King

"Gentlemen, so long as we live in a society in which the vast majority of us can never be partakers of the hope with which we started out, so long must justice take account of the suffering of the poor muzzled brute that treadeth out the corn. If he goes frenzied and runs amuck, he cannot be judged by the standards which apply to him who has been left unmuzzled and free to satisfy his wants. It is not fair; it is not human. It is true that to protect your own interests you have the power to shoot him down; but when he lies dead at your feet, no more muzzled in death than he was in life, there is surely somewhere in the universe an avenging force that is on his side, and which will make you—you as representatives of the society which has placed its action in your hands—and you as twelve private individuals with duties and consciences—there is somewhere in the universe this avenging force which will require his blood at your hands and make you pay the penalty. Surely you can find a better use for that valuable asset, a young man's life, than just to take it away. For the sake of the public whose honor is in your keeping, you must play the game squarely. For the sake of your own future peace of mind, you must not add your own crime to this poor boy's misfortune. Your duty at this minute is not merely to interpret the dead letter of a law; it is to be the voice of the People whom you represent. Remember that by the verdict you bring in that People will be committed to the most destructive of all destructive acts, or it will get expression for that deep, human common sense which transcends written phrases to act in the spirit of the greatest of us all, judging not according to the appearance—not according to the appearance, gentlemen, and you remember who counseled that—but judging righteous judgment."

He fell back into his seat, exhausted. He was so impressive and impassioned as to convince many of his hearers that he believed his own plea, while to some who had considered the verdict a certainty it was now in doubt.

Among Teddy's friends a hope arose that, in spite of all expectation to the contrary, he might be saved. Bob looked over and smiled. Teddy smiled back, but mainly because he rejoiced in what he felt to be his justification. He couldn't see how they could convict him after such a setting forth as that, though for the consequences of acquittal he had so little heart.

In the excitement of the courtroom, the judge's voice, when he began to give the jury their instructions, fell like cool, quiet rain on thunderous sultriness. He was a small man, with a leathery, unemotional face, framed by an iron-gray wig of faultless side-parting and long, straight, unnaturally smooth hair. He had the faculty of seeming attentive without being influenced. Listening, reasoning, asking a question, or settling a disputed point, he gave the impression of having reduced intelligence to the soulless accuracy of a cash register.

He reminded the jury that the law was not on trial; society was not on trial; the industrial experience of one Josiah Follett was not a feature in the case. They must not allow the issue to be confused by the social arguments which befogged so many of the questions of the day. It was quite possible that the world was not as perfect as it might be; it was even possible that the law was not the most perfect law that could be passed. But these were considerations into which they could not enter. In merely approaching them, they would lose their way. The law as it stands is the voice of the People as it is; and the only questions before them were, first, whether or not the accused had broken that law, and second, if he had broken it, to what degree. In answering these questions, they must limit themselves to the bare facts of the charge. With the prisoner's temptations they had nothing to do, except in so far as they tended to create intent. The consequences to his person, whether in the way of liberty or of the last penalty, were no concern of others. Justice in itself, viewed as justice in the abstract, was no concern of theirs. They were not, however, to burden their consciences with the fear that the accused was thus deprived of protection. The duty of a jury was not protection, but discernment. The administration of the law was far too big and complex a thing for any one body of men to deal with. Justice having many aspects, the law had as many departments. Protection was in other hands than theirs. The application of justice pure and simple, involving punishment for guilt without excluding pity for the provocation, was duly guaranteed by the methods of the state. They would find their task simplified by dismissing all such hesitations from their minds and confining themselves to the definite question which he repeated. Had the prisoner at the bar broken the existing law, and if he had so broken it, to what degree?

Having explained the difference between manslaughter and murder, as well as between first-degree murder and second, he admitted that, in case the accused was found guilty, there was much to indicate the second degree rather than the first. There was, however, one damning fact. The hand that had shot Peter Flynn went on at once to shoot William Jackman. The killing of one man might have been an accident. If not an accident, it might still have mitigating features. But for the murderer of a first man to proceed at once to become the murderer of a second indicated a planned and deliberate intent....

When the court had adjourned and the jury had retired to consider their verdict, one of the guards unlocked the cage and Teddy was taken down by a corkscrew staircase to a room immediately below. It was a small room, lighted by one feeble bulb, and aired from an air shaft. A table and two chairs stood in the middle of the room; a shiny, well-worn bench was fixed to one of the walls. The guards took the chairs; Teddy sat down on the bench. One of the guards cut off a piece of tobacco and put it in his mouth; the other lighted a cheap cigar. Taking another from an upper waistcoat pocket, he held it out toward Teddy.

"Have a smoke, young fella?"

Teddy shook his head. He was hardly aware of being addressed. Nothing else was said to him, and the guards, almost silently, began a game of cards. This waiting with prisoners for verdicts was always a tedious affair, and one to be got through patiently.

To Teddy, it was not so much tedious as it was unreal. He sat with arms folded, his head sunk, and the foot of the leg which was thrown across the other leg kicking outward mechanically. Except for a rare grunted remark between the players, there was no sound but the slap of the cards on the table and the scooping in of the tricks.