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“Now,” continued the Count, “if there was no question about these facts, and Bough of Oak stood for trial before any civilized tribunal on this earth, do you think the laws of any country would acquit him of the murder of Corporal Flint?”

The whole company laughed.

“I am entirely serious,” continued the Count. “What do you think? There are three great nations represented here.”

“The exigencies of war,” said Sir Henry Marquis, “might differentiate a barbarity from a crime.”

“But let us assume,” replied the Count, “that no state of war existed; that it was a time of peace; that Corporal Flint was innocent of wrong; and that Bough of Oak was acting entirely from a depraved instinct bent on murder. In other words, suppose this thing had occurred yesterday in one of the Middle States of the American Republic?”

The American felt that this question was directed primarily to himself. He put down his cigar and indicated the Englishman by a gesture.

“Your great jurist, Sir James Stephen,” he began, “constantly reminds us that the criminal law is a machine so rough and dangerous that we can use it only with every safety device attached.

“And so, Count,” he continued, to the Italian, “the administration of the criminal law in our country may seem to you subject to delays and indirections that are not justified. These abuses could be generally corrected by an intelligent presiding judge; but, in part, they are incidental to a fair and full investigation of the charge against the prisoner. I think, however, that our conception of justice does not differ from that of other nations.”

The old Count shrugged his shoulders at the digression.

“I beg your pardon,” he said. “I do not refer to the mere administration of the criminal law in your country; though, monsieur, we have been interested in observing its peculiarities in such notable examples as the Thaw trials in New York, and the Anarchist cases in Chicago some years ago. I believe the judge in the latter trial gave about one hundred instructions on the subject of reasonable doubt – quite intelligible, I dare say, to an American jury; but, I must confess, somewhat beyond me in their metaphysical refinements.

“I should understand reasonable doubt if I were uninstructed, but I do not think I could explain it. I should be, concerning it, somewhat as Saint Augustine was with a certain doctrine of the Church when he said: ‘I do not know if you ask me; but if you do not ask me I know very well.'”

He paused and blew a tiny ring or smoke out over the terrace toward the sea.

“There was a certain poetic justice finally in that case,” he added.

“The prisoners were properly convicted of the Haymarket murders,” said the American Justice.

“Ah, no doubt,” returned the Count; “but I was not thinking of that. Following a custom of your courts, I believe, the judge at the end of the trial put the formal inquiry as to whether the prisoners had anything to say. Whereupon they rose and addressed him for six days!”

He bowed.

“After that, monsieur, I am glad to add, they were all very properly hanged.

“But, monsieur, permit me to return to my question: Do you think any intelligent tribunal on this earth would acquit Bough of Oak of the murder of Corporal Flint under the conditions I have indicated?”

“No,” said the American. “It would be a cold-blooded murder; and in the end the creature would be executed.”

The old Count turned suddenly in his chair.

“Yes,” he said, “in a Continental court, it is certain; but in America, monsieur, under your admirable law, founded on the common law of England?”

“I am sure we should hang him,” replied the American.

“Monsieur,” cried the old Count, “you have me profoundly puzzled.”

It seemed to the little group on the terrace that they, and not the Count, were indicated by that remark. He had stated a case about which there could be no two opinions under any civilized conception of justice. Sir Henry Marquis had pointed out the only element – a state of war – which could distinguish the case from plain premeditated murder in its highest degree. They looked to him for an explanation; but it did not immediately arrive.