A Covenant with Death (25 page)

Thus my vigil, and I do not mean to romanticize it. I have liver spots on the backs of my hands now and white hair on my head, and I am sitting in a warm and well-appointed study. My belly is full. I know, as I knew on that night, that the law is made by full bellies; but now I know too, as I did not know on that night, that empty bellies crowd my world, each with its pair of beseeching hands and pleading eyes. In the world of my youth, the world of privacy and indifference, one man could water his lawn with old brandy and die fat and go to heaven while another hewed wood and died sick and went to hell: but Bryan Talbot's life was of value. Now no man dies alone, and we may all die together, and there is no heaven or hell, and we do not give a damn about the death of strangers. We have learned to speak to one another but without affection because indifference has won out; politics is one long meddling, but with the mind and not the heart, and if now and then we dispel the ultimate indifference—to annihilation—it is not because we love but because we fear; or not because we will miss the miracle that man is, but because we have just paid off the bank and it would be a shame to go now. But we will go, unless we learn to care. We banded together to stave off murder and to seek the beloved republic, and we have found the perfect defense against murder but it is not the beloved republic: it is suicide. I tell you: I would blame no man today for murder, and neither can you. To kill everyone is bad, we are told now; to kill only half the world is better, and to kill only a quarter of it is evidence of care and compassion. On that scale to kill only one man is an act of virtue and restraint, the act of an ascetic.

I exaggerate. A crusty old gaffer, grumbling. Like Jeremiah's, my soul is wearied because of murderers. But that night at Toussaint's Lake all things were still possible, and the race was worth saving. Talbot was a threat to it but he was also a part of it, as each of us has within him something that threatens the whole man; and what we do about that makes us or destroys us. So I searched for my flaws, because Talbot's life was bound up with them, and I found many; and I tried to decide what to do about them, because that might be what I would do about Talbot. The stars were bright, the air chilly; I wrapped myself in the blanket and lay warm, looking up at the stars in a soundless night. Many, many stars. Rosemary and I had looked at the stars. What revulsion had overtaken her? What bitterness? What despair? Was I indifferent, and did she know it? Was she no more to me than a trophy? My loving cup? Recesses gaped, thoughts tumbled. Perhaps the Morales in me had to straddle a blonde goddess; vanity, vanity, the rebellion of the slaves: on my back was thick black hair but I had conquered. And Rafaela, what was she? My dark concubine, not trophy but chattel? What had I given to either, and what did I deserve?

I groaned aloud. I knew nothing. I was a poor half-man with Bryan Talbot's life in my palm, and even this lonely communion was a childish cry for help that would not come. From where? Those stars? The army of unalterable law; no help to mere man.

My last thought was of Willie Waite, and then I slept.

But in a dazzling dawn, and damn cold, I was stronger, and cheerful, and had a fair idea of what I was. I washed in the lake, gave the horse a short drink, ate bread and cheese, and rode back to Soledad City.

15

We clip-clopped home and I tied Rickets to the outdoor faucet. My mother was inhospitable. “Don't let him trample my poppies.”

“What's for lunch?” I asked her.

“Catch any fish?” she said.

“Fish? That's Alvin's line. What do I look like, a millionaire sportsman?”

“You look like a bum,” she said. “Get those boots off before you fall down. Buffalo Bill.”

Over lunch—cold chicken and beer—she asked me why.

“I needed to think. I thought if I got off alone …”

“Did it help?” Her voice was low and diffident.

“Come on, now,” I said. “Don't go all over respectful. No. It didn't help. Or maybe. I suppose so.”

“You look a little different,” she said.

“Like a bum.”

“No. Happier.”

“Because I met a girl up there. She said her name was Sacajawea. Fellow named Clark had run off with her clothes.”

“Oh, you're a lot happier, you are.”

And I was.

I never even changed, except to slip on a pair of moccasins. I rode Rickets back to his home and rubbed his muzzle in fond farewell, and walked to my office. John was studying the briefs and when he saw me rigged out like an unemployed farmhand his face fell into lines of deep sorrow and disappointment. “Yes?” he asked politely. “Can I help you? The Judge is out.”

“Be quiet,” I said. “I'll have you deported. To Siberia. Is it true that you came from Siberia?”

“Careful,” he said. “My ancestors were eating raw meat and wearing skins when yours were still writing books. You look like a kid today, you know? Where've you been?”

“I just got a good night's sleep. Are those the briefs?”

“Yes. They came in this morning. I'm afraid you're going to be disappointed.”

“Why?”

“There's nothing much in them. Nothing conclusive, I mean.”

“Did you dig anything out of the books?”

“Yes, but that's not much help either. Nothing
really
relevant. A lot of cases that almost apply but don't. I felt pretty bad about it, but you don't seem to mind.”

“No, I don't mind. I didn't expect much.”

“Well.” He rubbed his hands and spoke briskly. “I have some notes here. Parmelee talks about doctrines, necessity and coercion, but I don't think he's on solid ground. He's just throwing everything into the pot. Sit down.” I sat down. I was amused but impressed, and I liked John fine. I liked preactically everybody that morning. “Let me see. Here. ‘When irresistible natural forces create the choice of losing all or saving some, lesser evil may be committed without incurring liability.' That's very weak, and it should really apply to numbers of people and not one man. He doesn't say so, but what he's talking about is that lifeboat case, United States versus Holmes, twenty-six Federal three-sixty—”

“Eighteen forty-two,” I said.

“Show-off. That's the one. He didn't mention it because the conviction—manslaughter—was upheld. It was only upheld because the poor people who got thrown overboard weren't chosen by lot. Court agreed that the boat would have sunk if they hadn't done it, but they should have drawn straws and not just dunked the nearest weakling. But anyway I don't think he has anything there. Unless you assume that Willie Waite's life was worth less than Bryan Talbot's; then it would be the lesser evil. But you'd also have to assume that Willie stood for an irresistible natural force.”

“Maybe he did. Did you ever try to resist the state?”

“My ancestors did.”

“And they died for it. And it wasn't their state.”

“We're back to Custer,” he said.

“So we are. What about coercion?”

“That's a lot closer to what Parmelee needs. A threat to kill someone unless he commits a designated felony. But Willie never came up and said, ‘You better kill me or I'll kill you.'”

“Didn't he?”

“No. Willie stood for—well, I don't know. Did he?”

“No,” I said. “You're right. Coercion requires that the felony be committed at the express command of the coercer and not simply because defendant felt that its commission would free him of pressures. If you were being kidnapped and you shot a cop because you thought your kidnapper would like you better and let you go, that's not coercion. If he has a gun at your head and says, ‘Kill that cop or else,' that's coercion.”

“Isn't that what happened to Talbot? Nobody gave him the order, but there's a kind of human necessity—”

“Which we call self-defense,” I said. “And that's what I have to decide. Because society has necessities too; and if human need were all that mattered you could rob a bank and say you needed the money.”

“I've thought of it,” he said. “Nobody can live on a clerk's salary. If I didn't do beadwork at night—”

“A Siberian Bolshevik,” I said. “Let me see the briefs.”

He passed them to me. “There's one other thing,” he said. “Parmelee doubts the constitutionality of prosecuting on an information in a capital case. He goes back to the Fifth Amendment. I think if he has to appeal he's going to do it on that basis.”

“We talked about it in court,” I said. “The law is damn sloppy there and I wish we had a Federal code. The states have to make their own laws; I saw girlie shows in Chicago that would have got everybody in sight arrested down here, and that's what they call local variation; but procedures ought to be uniform. It would save higher courts a lot of work. They do too much remanding on procedural grounds.”

“Anyway he makes that point,” John said.

“Not much of a point. Not substantive, and only for appeal. Well, I'll look at these.”

“When do you plan to hand down decision?”

“Monday. Will you call Dietrich and Parmelee and see if ten o'clock Monday is all right?”

“Monday! Then you've already decided!”

“Oh no,” I said. “No, I haven't. I've got a lot of books to look at and a lot of thoughts to think before I decide. Now get out of here and call them from your own desk.”

“You're lying to me,” he said.

“No, John.” I was serious and spoke quietly. “I've come to a couple of conclusions, but not the big one; and I'm not even sure that the small ones are material. But at least I know that I
can
decide. That's something.”

“I believe you,” he said. “You're the boss.”

“No. The people of this state are the boss, and it doesn't matter that sometimes I have little use for them. Do you know why the Governor made me a judge?”

“Your father?”

“Well, yes, but I meant, why does he create judges at all. Because he needs protection. The people elect him but they've got to be able to walk the streets at night or there won't be any state for him to be governor of. The state is a great pain in the ass but it's better than blood in the streets. Poor old Willie Waite! He died to save us all. You call the lawyers, now.”

Man comes first, with his lusts, and then the law, usually in the form of an intricately reticulated mechanism that serves variously as strait jacket, leg iron, or chastity belt. Or that should so serve; but in its preventive function it usually fails and thus becomes merely punitive, the rationale for thumbscrew or dungeon or guillotine. Which is to some extent why legal language is incomprehensible to laymen. To state plainly that the theft of 12.001275 cents by Mr. Charles Brown of Detroit demanded his incarceration for five to fifteen years would not relieve his hunger and would court contempt for all law; so Brown was apprehended, charged, and convicted of a felony against the state of Michigan, to wit, petty larceny, and after much polysyllabic due process he was jugged. Those who write laws, and often those who write decisions, must obfuscate; and “in every page our taste and reason are wounded by the choice of gigantic and obsolete words, a stiff and intricate phraseology, the discord of images, the childish play of false or unreasonable ornament, and the painful attempt … to astonish the reader, and to involve a trivial meaning in the smoke of obscurity and exaggeration.” Old Gibbon knew. In all the history of law there are not two dozen decisions set down in truly noble prose. The one I like best is Lord Justice Crewe's on de Vere—should the name lapse, or go to a cousin when the direct line died—delivered in a great time, when man was outsize and every capillary full. He read it aloud in the House of Lords in 1626. “I have labored to make a covenant with myself, that affection may not press upon judgement, for I suppose there is no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of a house so illustrious, and would take hold of a twig or twine thread to uphold it. And yet time hath his revolutions; there must be a period and an end to all temporal things—finis rerum—an end of names and dignities, and whatsoever is terrene; and why not of de Vere?—for where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more, and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality! Yet, let the name of de Vere stand so long as it pleaseth God.” Ah. That rings. But de Vere was not Bryan Talbot, and you have noticed that I was no Crewe.

So the books I took home that night could not answer my questions. They were heavy, and I was asweat when I arrived; they were leather-bound and close-printed and in them was some wisdom; they told me what I must not do, and for that I was grateful; but it was not enough. Nor were the briefs. My mother continued deferent, and did not try to make conversation; now and then, as I read through dinner, I allowed myself a “hmm” and she adopted a respectful expression of patience and expectation. When I left the table and went to the telephone she assumed that I was engaged upon business of the highest importance, but her curiosity was too much for her and after a minute she followed me, just in time to hear me say, “Rosemary. This is Ben.”

“Oh,” Rosemary said. “Hi,” meaning, Oh yes, I remember you.

I laughed. I guffawed. She was a beautiful woman and I should not have made fun of her but I laughed. I wished her well but I laughed. “I'm sorry,” I lied. “Forgive me. I don't know why I laughed. Will you meet me at Tobias's for lunch tomorrow? I promise not to make trouble.”

“Tomorrow?”

“Yes. Saturday. I want to talk to you, and I won't be a bother.”

“All right.” She sounded cheerful. “How are you?”

“I'm fine. How are you?”

“All right,” she said. “That Talbot thing must have been terrible. I read about it. What's going to happen to him?”