Yet, he reminded himself, there was nothing certain in the law.
Byam shouted, “We got to decide on a jury.”
Gallagher shook his fist over Ives’s shoulder. “We’re the jury, all of us!” He swung his arm at the men around him. Cheers rippled to the farther edges of the crowd and lapped at the walls of the buildings lining the road.
Sanders waited until the noise faded enough to let him be heard before he stood up to them Dan’s idea: a compromise, a formal jury to act in an advisory capacity to the jury of the whole. In the manner of men seizing on ideas, Sanders and Bagg and the judges had amended it, strengthened it, made it bullet-proof. Or so they hoped.
Thurmond leaped up: “No!”
Dan’s knife peeled wooden curls that he let gather on the stick. At this rate, he’d end up with a cluster of curls on a toothpick. He was listening to undercurrents in the crowd.
“We propose a compromise – ”
Jeers from the roughs, cries of “Quiet! Shut up! Let the man talk!”
Dan felt a smile begin at the corners of his mouth.
“We suggest an advisory jury to the jury of the whole, and made up of twenty-four men – ” Sanders plowed on, against the gumbo of jeers.
Gallagher hollered: “We’re the jury and we say, Let Ives go. Let Ives go!” He tried to make it a chant, but it would not catch on.
Thurmond bellowed, “This ain’t a trial, it’s a goddam charade!”
The cowbell clanged as Sanders, silenced, stood exposed to a mob that would not hear him. God, Dan thought, what he’d give for a real courtroom with its decorum, the certainty of being heard. And then he heard a new note, low and impatient, hinting at a current of another opinion flowing counter to Thurmond and Gallagher. Men booed them, shouted, “Let the man speak!” “Shut up!” “Let him talk!” “Quiet, goddammit!” The crowd settled into an uneasy quiet.
Dan, who had not lifted his eyes from the wooden curls, was suddenly hopeful. “Try again. The crowd is dividing. You were silenced by men who wanted to hear you. They were trying to tell the roughs to shut up.”
“They won’t listen to me,” Sanders said. “Bagg, you talk to them. You speak their language.”
“Yes, do.” Dan sensed that the opposition to Virginia must have support, but, being mostly Southerners and Copperheads themselves, they would not trust Sanders in his Union army greatcoat, or himself, an educated Northerner from Virginia City. They wanted truth in their own speech. From one of their own.
Bagg raised both arms. “Listen to me, you hard luck cases.” Laughter from the crowd. “I’m Charley Bagg, I got a claim in Junction District, and I ain’t a Union man wanting to make you do anything that ain’t democratic.” He quelled the laughter, the few cheers, with a downward motion of his hands. “Esteemed counsel for the defense is correct. This trial is a sham.”
Startled, Dan looked up. Bagg had everyone’s attention. “A proper trial means a jury, and trial by jury means 12 men! You voted to use Common Law, and one of the pillars of that system, in use by civilized governments everywhere, is a twelve-man jury. If you want to pan something else, you won’t find color.”
Thurmond thrust out his long jaw. “Twelve hand-picked men! Bob Hereford will put the damn posse on the jury.”
“A hand-picked jury was all right with you when you wanted the trial in Virginia!” shouted Sanders. “You were happy to have Plummer pick the jury.”
“Wait for Plummer!” yelled Gallagher, and his cronies took up the cry, “Wait for Plummer!” while others shouted them down, and Judge Byam called, “Order, order!” and shook the cowbell till Dan thought his ears would never stop ringing.
A voice behind the wagon asked, “Where is Plummer, anyhow?”
“Don’t know. It’s a good day’s ride,” said a second voice. “He’ll be here before long.”
The first man said, “He better damn well get here! It’s getting late.”
And it was. The sun was well into the westward portion of its flat arc and shadows crept outward across Alder Creek. Already the temperature dipped toward freezing even in the sunshine. Dan pulled his coat collar around his neck and his beard rasped against the material. He rubbed his chin. He forgot whether he had shaved this morning, but a blond man did not have to be so careful about a day’s growth of beard as a dark man would, and certainly with so many miners neither shaving nor bathing between arrival and leaving months later, a day would not be noticed.
Sanders’s voice booming as if in a call to battle roused him from his irrelevant thoughts. “We owe these men a speedy trial. We’re not waiting for Plummer!”
Thurmond shook his fist at Sanders. “The gentleman from Oberlin wants to rush to judgment!”
A mixture of laughter, catcalls, booing. “Nigger lover!” someone yelled.
Sanders’s temper flared. He put one leg over the side of the wagon, ready to go after Thurmond, but Dan and Bagg grabbed handfuls of his cape and pulled him back. Both feet in the wagon, Sanders boomed, as if he had just thought of it, as if his suggestion had not been in the plan from the beginning, “All right. Let’s have an advisory jury of twelve men from Junction and twelve from Nevada.”
“And Virginia!” shouted Smith.
Some of the Virginia roughs took up the shout. “Let’s pick a jury from Virginia!” Other men echoed it, some calling for Junction and Nevada, others for Virginia, and more for the jury of the whole. The defense lawyers had their heads together, conferring, and Dan could see the whole idea coming apart, leaving them with only the mob jury. He said to Sanders and Bagg. “Most of the men here are from Nevada and Junction, aren’t they? They wouldn’t be likely to accept a jury from Virginia, so what if they voted it down? Then Ives’s bunch couldn’t say we wouldn’t give Virginia a look-in.”
“Too dangerous.” Sanders shook his head. “We can’t take the chance.”
Dan said, “I think it might work.” He couldn’t explain how he knew, how he felt that the crowd might be ready to listen, because he couldn’t explain the undercurrents he’d heard building among the unruly, ragged men who planted their feet and stood with arms crossed on their chests, signifying their opposition to the roughs, to the Virginia contingent.
Bagg said, “Yes, it’s dangerous, but it’s worth the risk. I’ll try it.”
“All right,” Sanders said.
Bagg held up his hands for quiet, and the crowd silenced itself as pale curls gathered on the stick, and Dan heard a different quality in the silence: an intentness, a concentration. Bagg’s Southern drawl thickened, and his voice carried outward, where on the crowd’s rim, men ended their conversations, paused in their errands. “You see, boys, here’s the way of it. We want to see justice done, don’t we?” Not hearing more than a murmur, he shouted: “Don’t we want justice?”
“Yes,” shouted Gallagher from his stance behind the log. “That’s why we don’t want no goddam picked jury.”
“That’s right,” McDowell said. “We want all of us on the jury, that’s what.”
Bagg ignored them. Their shouts were as nothing to him, with his voice honed to shouting orders across battlefields, and he spoke as if in a courtroom merely larger than most. “There’s an innocent boy done to death. We’ve had a lot of that, one way and another. There’s many a man has set off for the States with his gold, and his relatives have written months later to ask his whereabouts. There’s babies back home whose daddies ain’t coming home, women that will never know what happened to their husbands, sons, fathers.”
Sanders rocked, heel toe, heel toe, and his fingers twined themselves together behind his back. “Yes,” he murmured, “yes, yes.”
Something about the crowd drew his attention, and it took him a moment to realize that it was mostly quiet. They listened to Bagg. Dan sent up silent curses that approached prayers: Christ let this be, Jesus make it work, let them go for it, holy Christ Charlie speak to them, hear him you bastards, God damn you, hear what he’s telling you. Pale wooden curls
gathered on the stick, and the crowd was silent.
Smith lurched up from the log. “George Ives has got to have a fair trial. I say – ” He belched and rocked a bit. Several men laughed. “I say, every man jack has the right to be on this here jury. You want justice? George Ives needs justice, because he did not kill Nick Tbalt.”
“God damn it, I ain’t done yet!” Bagg shouted.
“Order!” Byam reached for the cowbell, but men shouted at Smith: ”Sit down! Let him talk! Shut up! We want to hear him!”
In the quiet, Bagg shouted, “You want a fair trial? Let it be fair to all sides. We’ll have an advisory jury. Twelve men from Junction, and twelve from Nevada. They’ll hear all the evidence and recommend a verdict. Then you boys can vote to agree or disagree with them. You-all will have the final say.”
“So moved,” yelled Dan. Bagg had not proposed a jury from Virginia City, but this was not the time to bring that in. They had to seize the moment.
Judge Byam shouted, “Second?”
“Second,” bellowed a man who stood at the crossed tongues.
“All in favor,” hollered Judge Wilson.
Waves of cheers crashed against the building walls, from one side of the street to the other. Judge Byam waited until he could be heard. “Opposed.” Loud as the booing sounded to Dan, it was not as loud as the cheering. Byam yelled, “Carried! There will be an advisory jury of twelve men from Nevada and twelve men from Junction, to make recommendations to the jury of the whole, and you boys will have the final say.” He rang the cowbell and coughed. “I need a beer. This is dry work,” he muttered.
Leaning over the wagon’s sidewall, he instructed Sheriff Hereford and the sheriff of Junction to round up an advisory jury and be back before nightfall.
“Bring on your goddam advisory jury.” McDowell rested both hands on Ives’s shoulders. “If this man hangs, your lives will be fool’s gold.”
God damn it! Dan was sick of this – this bullying. He would show McDowell. Intent on the big man, full of an anger that freed him from fear, he rested his left hand, holding the stick, on the sidewall and vaulted over. The stick caught on a hook inside the top board, and as he dropped, his weight wrenched his thumb from its socket. Up his arm stabbed a pain so sharp that he wanted to vomit. He went to his knees, held the arm to his stomach, and Sanders and Bagg jumped to help him stand. Cradling his arm, Dan could see despite the glove that the thumb bulged out at a bad angle.
Bagg shouted into his ear: “Is it broken?”
Dan shook his head. Though the first knife thrusts had settled into a hard throbbing, he still could not speak, and he dreaded taking off the glove. “Just the thumb.” He had not thought something so small could hurt so much.
X Beidler, whom Dan hadn’t seen since in several hours, walked through the cordon of guards with Jacob. Beidler carried his shotgun, a beer, and most of a paper-wrapped meat pie. He offered the pie to Dan, who shook his head. He had not eaten all day, but the thought of food made his stomach turn over. Beidler took a bite of the pie. “How’s your hand?”
“It’ll do.” Anything else he said would be playing the baby. “Where have you been?”
Beidler offered the beer to Dan, who shook his head. “Out there.” He took a swig to wash down the pie. “Listening to public opinion.” A nod to Sanders and Bagg. “This and that. Looking for Aleck Carter. The Nevada boys’re damn sick of the way things have been going in Virginia. They’ve had too much trouble from roughs like Ives.”
Sanders said, “Divide and conquer. Your idea worked, Stark.”
“Yes,” Dan said. “But what about Carter?”
Beidler mumbled around a bite of meat pie. “Nowhere to be found. Word is he pulled up stakes and went to Deer Lodge when we brung Ives in.”
A hundred miles north. “Christ,” Dan said. What if Carter got away? He felt as if he traveled on a deer trail that meandered through dense stands of fir and pine, and at each turn, when it seemed the trail must end in a plain clear road, it disappeared through rampant clumps of thorny stems twining through fallen logs.
* * *
There he was. Mr. Stark. Sitting on the back bench, close to Lydia’s stove. At the sight of him a kind of fog shrouded the room, and the clash of crockery in the wash tub faded. He smiled, and she knew he hurt someplace, on account pain tightened his eyes, but man-like, he wouldn’t let himself know how bad it was. She knew that look too well. Hogs had it before dying, and women in labor. Men who hurt. He maybe thought he could hide it, but he couldn’t. Not from her.
The fog vanished. Lydia took the pie out of her hands, and carried it high, like a trophy, and the colored gal let plates and cups slide into the wash tub, and people’s talk buzzed around her. Tim squeezed onto the bench next to X. Beidler, who sat beside Mr. Stark. She suddenly knew that X Beidler faced the door in case of trouble, and Jacob Himmelfarb, on Mr. Stark’s other side, hovered over him like a broody hen, even cutting his meat – now why would he do that? She didn’t dare take too close a look now, but followed along, Lydia with the pie and Dotty fair bouncing in Lydia’s wake, wanting to tell her news.
“Gentlemen, we have a special treat,” Lydia announced.
Martha put back her hood and untied the cloak as she walked toward him. To the others, she was a woman walking after Lydia, but she felt guilty, like she was meeting him secret-like in plain sight. “Just a dried apple pie,” she said.
“Apple pie!” X smacked his lips.
Two or three customers applauded, and Mr. Stark’s smile reached into her soul. “Best pie in the Gulch,” he said.
Martha shook her head. “It’s plain cooking. Not what you’re used to.” For she had seen the colored gal’s narrowing lips, and understood how she’d feel if she thought her pie-making slighted. “Tabby’s the dab hand at pies. My crust is always too thick.”
She was doing how she’d been reared, not letting herself get puffed up, and hadn’t thought about what she was saying until Lydia froze with the knife over the pie, and her mouth opened, and she and the colored gal stared at Martha, their shock turning quick-like into delight. And Martha was shocked at herself. What she had said just popped out. For certain, she’d never have given the colored gal’s feelings a bit of attention a few days ago. Wouldn’t have thought that a darky had feelings to be hurt, and it wouldn’t have mattered none anyway.
Lydia sliced the pie, set out slices on tin plates. “Let’s have some of this delicious pie. Tabby, do thee take some to Albert, please.”
“I wanted to tell you that I talked to the Professor today.” Martha helped Lydia hand out pie to everyone, part of her mind worried that Lydia wouldn’t get enough dust for the pie, seeing as how she hadn’t quoted them a price.
“Mam said I knew my letters good enough to talk to him, so we did, and he said I could come. Isn’t that fine?” Dotty bounced on her toes, she was that excited. “I start in January.” She twirled, and stumbled against Mr. Stark, who twisted about and steadied the child. Martha saw that he wore a glove on his left hand but not on his right, that held Dotty’s elbow. His nose showed pinched and white about the nostrils. She must have bumped him, but he hadn’t let on.
“The best thing you can learn,” he said, “is kindness to others.”
“Like my Mam?” The child sidled closer into the circle of his arm.
“Exactly so. And Mrs. Hudson.” With a smile at Martha, he let go the young’un’s elbow, and shrugged her away as he turned back to his dinner.
Martha put up her hands to cool her cheeks. Lydia said, “Sit thee down, dearie. It’s not fair for you to work so hard and not share in the fruits.” She laughed like she’d said something clever, and the men laughed with her, but Martha didn’t get the joke, for trying to piece her thoughts together. Dotty must have thought she meant to leave, because the child said, “Why can’t we stay, Mam? Pap ain’t home. He’s off somewheres with Deputy Gallagher.”
There was a hard silence Martha could have bounced off of. X Beid
ler’s back stiffened, and Mr. Stark’s fork stopped halfway to his mouth, and even Jacob Himmelfarb, who was half turned her way, and was about the gentlest thing in trousers she’d ever met, stared at her like he’d found out her dark secret.
Tim spoke up. “We can stay, Mam, can’t we?”
Mr. Stark said, “That being the case, please do have some of your own pie. We’ll see you safely home afterwards. I have to pick up my winnings at the Melodeon Hall.”
“I’ll see them home safe,” Tim said, and Martha knew he was wanting to be the man of the house and responsible for his womenfolk.
“Of course you will,” said Mr. Stark, “but we’ll walk along to the Hall.”
“Please, Mam.” Dotty had a pleading in her eyes, like Martha might be standing in the way of her most important thing.
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