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(Sunday, September 9)

On the day following his decision, Markham and Vance and I were sitting in a secluded corner of the lounge-room of the Stuyvesant Club. We often came together there, for we were all members of the club, and Markham frequently used it as a kind of unofficial up-town headquarters.⁶

“It’s bad enough to have half the people in this city under the impression that the District Attorney’s office is a kind of high-class collection agency,” he remarked that night, “without being necessitated to turn detective because I’m not given sufficient evidence, or the right kind of evidence, with which to secure convictions.”

Vance looked up with a slow smile, and regarded him quizzically.

“The difficulty would seem to be,” he returned, with an indolent drawl, “that the police, being unversed in the exquisite abracadabra of legal procedure, labor under the notion that evidence which would convince a man of ordin’ry intelligence, would also convince a court of law. A silly notion, don’t y’ know. Lawyers don’t really want evidence: they want erudite technicalities. And the average policeman’s brain is too forthright to cope with the pedantic demands of jurisprudence.”

“It’s not as bad as that,” Markham retorted, with an attempt at good nature, although the strain of the past few weeks had tended to upset his habitual equanimity. “If there weren’t rules of evidence, grave injustice would too often be done innocent persons. And even a criminal is entitled to protection in our courts.”

Vance yawned mildly.

“Markham, you should have been a pedagogue. It’s positively amazin’ how you’ve mastered all the standard oratorical replies to criticism. And yet, I’m unconvinced. You remember the Wisconsin case of the kidnapped man whom the courts declared presumably dead. Even when he reappeared, hale and hearty, among his former neighbors, his status of being presumably dead was not legally altered. The visible and demonstrable fact that he was actually alive was regarded by the court as an immaterial and impertinent side-issue.⁷ . . . Then there’s the touchin’ situation—so prevalent in this fair country—of a man being insane in one State and sane in another. . . . Really, y’ know, you can’t expect a mere lay intelligence, unskilled in the benign processes of legal logic, to perceive such subtle nuances. Your layman, swaddled in the darkness of ordin’ry common sense, would say that a person who is a lunatic on one bank of a river would still be a lunatic if he was on the opposite bank. And he’d also hold—erroneously, no doubt—that if a man was living, he would presumably be alive.”

“Why this academic dissertation?” asked Markham, this time a bit irritably.

“It seems to touch rather vitally on the source of your present predicament,” Vance explained equably. “The police, not being lawyers, have apparently got you into hot water, what? . . . Why not start an agitation to send all detectives to law school?”

“You’re a great help,” retorted Markham.

Vance raised his eyebrows slightly.

“Why disparage my suggestion? Surely you must perceive that it has merit. A man without legal training, when he knows a thing to be true, ignores all incompetent testimony to the contr’ry, and clings to the facts. A court of law listens solemnly to a mass of worthless testimony, and renders a decision not on the facts but according to a complicated set of rules. The result, d’ ye see, is that a court often acquits a prisoner, realizing full well that he is guilty. Many a judge has said, in effect, to a culprit: ‘I know, and the jury knows, that you committed the crime, but in view of the legally admissible evidence, I declare you innocent. Go and sin again.’ ”

Markham grunted. “I’d hardly endear myself to the people of this county if I answered the current strictures against me by recommending law courses for the Police Department.”

“Permit me, then, to suggest the alternative of Shakespeare’s butcher: ‘Let’s kill all the lawyers.’ ”

“Unfortunately, it’s a situation, not a utopian theory, that has to be met.”

“And just how,” asked Vance lazily, “do you propose to reconcile the sensible conclusions of the police with what you touchingly call correctness of legal procedure?”

“To begin with,” Markham informed him, “I’ve decided henceforth to do my own investigating of all important night-club criminal cases. I called a conference of the heads of my departments yesterday, and from now on there’s going to be some real activity radiating direct from my office. I intend to produce the kind of evidence I need for convictions.”

Vance slowly took a cigarette from his case and tapped it on the arm of his chair.

“Ah! So you are going to substitute the conviction of the innocent for the acquittal of the guilty?”

Markham was nettled; turning in his chair he frowned at Vance.

“I won’t pretend not to understand your remark,” he said acidulously. “You’re back again on your favorite theme of the inadequacy of circumstantial evidence as compared with your psychological theories and æsthetic hypotheses.”

“Quite so,” agreed Vance carelessly. “Y’ know, Markham, your sweet and charmin’ faith in circumstantial evidence is positively disarming. Before it, the ordin’ry powers of ratiocination are benumbed. I tremble for the innocent victims you are about to gather into your legal net. You’ll eventually make the mere attendance at any cabaret a frightful hazard.”

Markham smoked a while in silence. Despite the seeming bitterness at times in the discussions of these two men, there was at bottom no animosity in their attitude toward each other. Their friendship was of long standing, and, despite the dissimilarity of their temperaments and the marked difference in their points of view, a profound mutual respect formed the basis of their intimate relationship.

At length Markham spoke.

“Why this sweeping deprecation of circumstantial evidence? I admit that at times it may be misleading; but it often forms powerful presumptive proof of guilt. Indeed, Vance, one of our greatest legal authorities has demonstrated that it is the most powerful actual evidence in existence. Direct evidence, in the very nature of crime, is almost always unavailable. If the courts had to depend on it, the great majority of criminals would still be at large.”

“I was under the impression that this precious majority had always enjoyed its untrammelled freedom.”

Markham ignored the interruption.

“Take this example: A dozen adults see an animal running across the snow, and testify that it was a chicken; whereas a child sees the same animal, and declares it was a duck. They thereupon examine the animal’s footprints and find them to be the web-footed tracks made by a duck. Is it not conclusive, then, that the animal was a duck and not a chicken, despite the preponderance of direct evidence?”

“I’ll grant you your duck,” acceded Vance indifferently.

“And having gratefully accepted the gift,” pursued Markham, “I propound a corollary: A dozen adults see a human figure crossing the snow, and take oath it was a woman; whereas a child asserts that the figure was a man. Now, will you not also grant that the circumstantial evidence of a man’s footprints in the snow would supply incontrovertible proof that it was, in fact, a man, and not a woman?”

“Not at all, my dear Justinian,” replied Vance, stretching his legs languidly in front of him; “unless, of course, you could show that a human being possesses no higher order of brains than a duck.”

“What have brains to do with it?” Markham asked impatiently. “Brains don’t affect one’s footprints.”

“Not those of a duck, certainly. But brains might very well—and, no doubt, often do—affect the footprints of a human being.”

“Am I having a lesson in anthropology, Darwinian adaptability, or merely metaphysical speculation?”

“In none of those abstruse subjects,” Vance assured him. “I’m merely stating a simple fact culled from observation.”

“Well, according to your highly and peculiarly developed processes of reasoning, would the circumstantial evidence of those masculine footprints indicate a man or a woman?”

“Not necessarily either,” Vance answered; “or, rather, a possibility of each. Such evidence, when applied to a human being—to a creature, that is, with a reasoning mind—would merely mean to me that the figure crossing the snow was either a man in his own shoes, or a woman in man’s shoes; or perhaps, even, a long-legged child. In short, it would convey to my purely unlegal intelligence only that the tracks were made by some descendant of the Pithecanthropus erectus wearing men’s shoes on his nether limbs—sex and age unknown. A duck’s spoors, on the other hand, I might be tempted to take at their face value.”

“I’m delighted to observe,” said Markham, “that, at least, you repudiate the possibility of a duck dressing itself up in the gardener’s boots.”

Vance was silent for a moment; then he said:

“The trouble with you modern Solons, d’ ye see, is that you attempt to reduce human nature to a formula; whereas the truth is that man, like life, is infinitely complex. He’s shrewd and tricky—skilled for centuries in all the most diabolical chicaneries. He is a creature of low cunning, who, even in the normal course of his vain and idiotic struggle for existence, instinctively and deliberately tells ninety-nine lies to one truth. A duck, not having had the heaven-kissing advantages of human civilization, is a straightforward and eminently honest bird.”

“How,” asked Markham, “since you jettison all the ordinary means of arriving at a conclusion, would you decide the sex or species of this person who left the masculine footprints in the snow?”

Vance blew a spiral of smoke toward the ceiling.

“First, I’d repudiate all the evidence of the twelve astigmatic adults and the one bright-eyed child. Next, I’d ignore the footprints in the snow. Then, with a mind unprejudiced by dubious testimony and uncluttered with material clues, I’d determine the exact nature of the crime which this fleeing person had committed. After having analyzed its various factors, I could infallibly tell you not only whether the culprit was a man or a woman, but I could describe his habits, character, and personality. And I could do all this whether the fleeing figure left male or female or kangaroo tracks, or used stilts, or rode off on a velocipede, or levitated without leaving tracks at all.”

Markham smiled broadly. “You’d be worse than the police in the matter of supplying me legal evidence, I fear.”

“I, at least, wouldn’t procure evidence against some unsuspecting person whose boots had been appropriated by the real culprit,” retorted Vance. “And, y’ know, Markham, as long as you pin your faith to footprints you’ll inevitably arrest just those persons whom the actual criminals want you to—namely, persons who have had nothing to do with the criminal conditions you’re about to investigate.”

He became suddenly serious.

“See here, old man; there are some shrewd intelligences at present allied with what the theologians call the powers of darkness. The surface appearances of many of these crimes that are worrying you are palpably deceptive. Personally, I don’t put much stock in the theory that a malevolent gang of cut-throats have organized an American camorra, and made the silly night clubs their headquarters. The idea is too melodramatic. It smacks too much of the gaudy journalistic imagination: it’s too Eugène Sue-ish. Crime isn’t a mass instinct except during war-time, and then it’s merely an obscene sport. Crime, d’ ye see, is a personal and individual business. One doesn’t make up a partie carrée for a murder as one does for a bridge game. . . . Markham, old dear, don’t let this romantic criminological idea lead you astray. And don’t scrutinize the figurative footprints in the snow too closely. They’ll confuse you most horribly—you’re far too trustin’ and literal for this wicked world. I warn you that no clever criminal is going to leave his own footprints for your tape-measure and calipers.”

He sighed deeply, and gave Markham a look of bantering commiseration.

“And have you paused to consider that your first case may even be devoid of footprints? . . . Alas! What, then, will you do?”

“I could overcome that difficulty by taking you along with me,” suggested Markham, with a touch of irony. “How would you like to accompany me on the next important case that breaks?”

“I am ravished by the idea,” said Vance.

Two days later the front pages of our metropolitan press carried glaring headlines telling of the murder of Margaret Odell.

6. The Stuyvesant was a large club, somewhat in the nature of a glorified hotel; and its extensive membership was drawn largely from the political, legal, and financial ranks.

7. The case to which Vance referred, I ascertained later, was Shatterham v. Shatterham, 417 Mich., 79—a testamentary case.