Part 1 Chapter 45
FANARIN, THE ADVOCATE--THE PETITION.
Nekhludoff meant to rearrange the whole of his external life, to let his large house and move to an hotel, but Agraphena Petrovna pointed out that it was useless to change anything before the winter. No one would rent a town house for the summer; anyhow, he would have to live and keep his things somewhere. And so all his efforts to change his manner of life (he meant to live more simply: as the students live) led to nothing. Not only did everything remain as it was, but the house was suddenly filled with new activity. All that was made of wool or fur was taken out to be aired and beaten. The gate-keeper, the boy, the cook, and Corney himself took part in this activity. All sorts of strange furs, which no one ever used, and various uniforms were taken out and hung on a line, then the carpets and furniture were brought out, and the gate-keeper and the boy rolled their sleeves up their muscular arms and stood beating these things, keeping strict time, while the rooms were filled with the smell of naphthaline.
When Nekhludoff crossed the yard or looked out of the window and saw all this going on, he was surprised at the great number of things there were, all quite useless. Their only use, Nekhludoff thought, was the providing of exercise for Agraphena Petrovna, Corney, the gate-keeper, the boy, and the cook.
"But it's not worth while altering my manner of life now," he thought, "while Maslova's case is not decided. Besides, it is too difficult. It will alter of itself when she will be set free or exiled, and I follow her."
On the appointed day Nekhludoff drove up to the advocate Fanarin's own splendid house, which was decorated with huge palms and other plants, and wonderful curtains, in fact, with all the expensive luxury witnessing to the possession of much idle money, i.e., money acquired without labour, which only those possess who grow rich suddenly. In the waiting-room, just as in a doctor's waiting-room, he found many dejected-looking people sitting round several tables, on which lay illustrated papers meant to amuse them, awaiting their turns to be admitted to the advocate. The advocate's assistant sat in the room at a high desk, and having recognised Nekhludoff, he came up to him and said he would go and announce him at once. But the assistant had not reached the door before it opened and the sounds of loud, animated voices were heard; the voice of a middle-aged, sturdy merchant, with a red face and thick moustaches, and the voice of Fanarin himself. Fanarin was also a middle-aged man of medium height, with a worn look on his face. Both faces bore the expression which you see on the faces of those who have just concluded a profitable but not quite honest transaction.
"Your own fault, you know, my dear sir," Fanarin said, smiling.
"We'd all be in 'eaven were it not for hour sins."
"Oh. yes, yes; we all know that," and both laughed un-naturally.
"Oh, Prince Nekhludoff! Please to step in," said Fanarin, seeing him, and, nodding once more to the merchant, he led Nekhludoff into his business cabinet, furnished in a severely correct style.
"Won't you smoke?" said the advocate, sitting down opposite Nekhludoff and trying to conceal a smile, apparently still excited by the success of the accomplished transaction.
"Thanks; I have come about Maslova's case."
"Yes, yes; directly! But oh, what rogues these fat money bags are!" he said. "You saw this here fellow. Why, he has about twelve million roubles, and he cannot speak correctly; and if he can get a twenty-five rouble note out of you he'll have it, if he's to wrench it out with his teeth."
"He says ''eaven' and 'hour,' and you say 'this here fellow,'" Nekhludoff thought, with an insurmountable feeling of aversion towards this man who wished to show by his free and easy manner that he and Nekhludoff belonged to one and the same camp, while his other clients belonged to another.
"He has worried me to death--a fearful scoundrel. I felt I must relieve my feelings," said the advocate, as if to excuse his speaking about things that had no reference to business. "Well, how about your case? I have read it attentively, but do not approve of it. I mean that greenhorn of an advocate has left no valid reason for an appeal."
"Well, then, what have you decided?"
"One moment. Tell him," he said to his assistant, who had just come in, "that I keep to what I have said. If he can, it's all right; if not, no matter."
"But he won't agree."
"Well, no matter," and the advocate frowned.
"There now, and it is said that we advocates get our money for nothing," he remarked, after a pause. "I have freed one insolvent debtor from a totally false charge, and now they all flock to me. Yet every such case costs enormous labour. Why, don't we, too, 'lose bits of flesh in the inkstand?' as some writer or other has said. Well, as to your case, or, rather, the case you are taking an interest in. It has been conducted abominably. There is no good reason for appealing. Still," he continued, "we can but try to get the sentence revoked. This is what I have noted down." He took up several sheets of paper covered with writing, and began to read rapidly, slurring over the uninteresting legal terms and laying particular stress on some sentences. "To the Court of Appeal, criminal department, etc., etc. According to the decisions, etc., the verdict, etc., So-and-so Maslova pronounced guilty of having caused the death through poison of the merchant Smelkoff, and has, according to Statute 1454 of the penal code, been sentenced to Siberia," etc., etc. He stopped. Evidently, in spite of his being so used to it, he still felt pleasure in listening to his own productions. "This sentence is the direct result of the most glaring judicial perversion and error," he continued, impressively, "and there are grounds for its revocation. Firstly, the reading of the medical report of the examination of Smelkoff's intestines was interrupted by the president at the very beginning. This is point one."
"But it was the prosecuting side that demanded this reading," Nekhludoff said, with surprise.
"That does not matter. There might have been reasons for the defence to demand this reading, too."
"Oh, but there could have been no reason whatever for that."
"It is a ground for appeal, though. To continue: 'Secondly,' he went on reading, 'when Maslova's advocate, in his speech for the defence, wishing to characterise Maslova's personality, referred to the causes of her fall, he was interrupted by the president calling him to order for the alleged deviation from the direct subject. Yet, as has been repeatedly pointed out by the Senate, the elucidation of the criminal's characteristics and his or her moral standpoint in general has a significance of the first importance in criminal cases, even if only as a guide in the settling of the question of imputation.' That's point two," he said, with a look at Nekhludoff.
"But he spoke so badly that no one could make anything of it," Nekhludoff said, still more astonished.
"The fellow's quite a fool, and of course could not be expected to say anything sensible," Fanarin said, laughing; "but, all the same, it will do as a reason for appeal. Thirdly: 'The president, in his summing up, contrary to the direct decree of section 1, statute 801, of the criminal code, omitted to inform the jury what the judicial points are that constitute guilt; and did not mention that having admitted the fact of Maslova having administered the poison to Smelkoff, the jury had a right not to impute the guilt of murder to her, since the proofs of wilful intent to deprive Smelkoff of life were absent, and only to pronounce her guilty of carelessness resulting in the death of the merchant, which she did not desire.' This is the chief point."
"Yes; but we ought to have known that ourselves. It was our mistake."
"And now the fourth point," the advocate continued. "The form of the answer given by the jury contained an evident contradiction. Maslova is accused of wilfully poisoning Smelkoff, her one object being that of cupidity, the only motive to commit murder she could have had. The jury in their verdict acquit her of the intent to rob, or participation in the stealing of valuables, from which it follows that they intended also to acquit her of the intent to murder, and only through a misunderstanding, which arose from the incompleteness of the president's summing up, omitted to express it in due form in their answer. Therefore an answer of this kind by the jury absolutely demanded the application of statutes 816 and 808 of the criminal code of procedure, i.e., an explanation by the president to the jury of the mistake made by them, and another debate on the question of the prisoner's guilt."
"Then why did the president not do it?"
"I, too, should like to know why," Fanarin said, laughing.
"Then the Senate will, of course, correct this error?"
"That will all depend on who will preside there at the time. Well, now, there it is. I have further said," he continued, rapidly, "a verdict of this kind gave the Court no right to condemn Maslova to be punished as a criminal, and to apply section 3, statute 771 of the penal code to her case. This is a decided and gross violation of the basic principles of our criminal law. In view of the reasons stated, I have the honour of appealing to you, etc., etc., the refutation, according to 909, 910, and section 2, 912 and 928 statute of the criminal code, etc., etc. . . . to carry this case before another department of the same Court for a further examination. There; all that can be done is done, but, to be frank, I have little hope of success, though, of course, it all depends on what members will be present at the Senate. If you have any influence there you can but try."
"I do know some."
"All right; only be quick about it. Else they'll all go off for a change of air; then you may have to wait three months before they return. Then, in case of failure, we have still the possibility of appealing to His Majesty. This, too, depends on the private influence you can bring to work. In this case, too, I am at your service; I mean as to the working of the petition, not the influence."
"Thank you. Now as to your fees?"
"My assistant will hand you the petition and tell you."
"One thing more. The Procureur gave me a pass for visiting this person in prison, but they tell me I must also get a permission from the governor in order to get an interview at another time and in another place than those appointed. Is this necessary?"
"Yes, I think so. But the governor is away at present; a vice-governor is in his place. And he is such an impenetrable fool that you'll scarcely be able to do anything with him."
"Is it Meslennikoff?"
"Yes."
"I know him," said Nekhludoff, and got up to go. At this moment a horribly ugly, little, bony, snub-nosed, yellow-faced woman flew into the room. It was the advocate's wife, who did not seem to be in the least bit troubled by her ugliness. She was attired in the most original manner; she seemed enveloped in something made of velvet and silk, something yellow and green, and her thin hair was crimped.
She stepped out triumphantly into the ante-room, followed by a tall, smiling man, with a greenish complexion, dressed in a coat with silk facings, and a white tie. This was an author. Nekhludoff knew him by sight.
She opened the cabinet door and said, "Anatole, you must come to me. Here is Simeon Ivanovitch, who will read his poems, and you must absolutely come and read about Garshin."
Nekhludoff noticed that she whispered something to her husband, and, thinking it was something concerning him, wished to go away, but she caught him up and said: "I beg your pardon, Prince, I know you, and, thinking an introduction superfluous, I beg you to stay and take part in our literary matinee. It will be most interesting. M. Fanarin will read."
"You see what a lot I have to do," said Fanarin, spreading out his hands and smilingly pointing to his wife, as if to show how impossible it was to resist so charming a creature.
Nekhludoff thanked the advocate's wife with extreme politeness for the honour she did him in inviting him, but refused the invitation with a sad and solemn look, and left the room.
"What an affected fellow!" said the advocate's wife, when he had gone out.
In the ante-room the assistant handed him a ready-written petition, and said that the fees, including the business with the Senate and the commission, would come to 1,000 roubles, and explained that M. Fanarin did not usually undertake this kind of business, but did it only to oblige Nekhludoff.
"And about this petition. Who is to sign it?"
"The prisoner may do it herself, or if this is inconvenient, M. Fanarin can, if he gets a power of attorney from her."
"Oh, no. I shall take the petition to her and get her to sign it," said Nekhludoff, glad of the opportunity of seeing her before the appointed day.
聂赫留朵夫想改变生活方式：退掉这座大住宅，解散佣人，自己搬到旅馆去住。但是阿格拉芬娜竭力劝说他，没有任何理由在冬季以前改变生活方式，因为夏季谁也不要租大住宅，再说自己也总得有个地方居住和存放家具杂物。这样，聂赫留朵夫想改变生活方式，过学生般简朴生活的努力，全都成了泡影。家里不仅一切如旧，而且又紧张地忙起家务事来：把全部一毛一料和皮子衣服拿出来晾一晾，挂开来吹吹风，掸去灰尘。扫院子人、他的下手、厨一娘一和柯尔尼都一齐忙碌着。他们先把军服、制一服和从来没有人穿过的古怪皮货晾在绳子上，然后把地毯和家具也都搬出去。扫院子人和他的下手卷起袖子，露出肌肉发达的胳膊，很有节奏地敲打着这些东西。个个房间都弥漫着樟脑味儿。聂赫留朵夫从院子里走过，后来从窗子里望出去，看见那么多东西，而且都是毫无用处的，不禁感到惊讶。“保存这些东西的唯一用处，”聂赫留朵夫想，“就在于让阿格拉芬娜、柯尔尼、扫院子人、他的下手和厨一娘一有个机会活动活动筋骨。”
“玛丝洛娃的事还没有解决，暂时用不着改变生活方式，”聂赫留朵夫想。“再说改变生活方式也实在困难。等她得到释放或者被流放，我也跟着她去，到那时生活方式也就自然改变了。”在同法纳林律师约定的那一天，聂赫留朵夫坐上马车去看他。律师的私人住宅富丽堂皇，摆满高大的盆花，窗子上挂着一精一美的窗帘。总之，排场十分阔气，表明主人发了横财，因为这样的排场只有暴发户才会有。聂赫留朵夫走进这座房子，在接待室里看见许多来访的人，好象医生的候诊室那样，大家没一精一打采地坐在几张桌子旁，翻阅供他们消遣的画报，等待着接见。律师的助手也坐在这儿一张很高的斜面办公桌旁。他一认出聂赫留朵夫，就走过来同他寒暄，并且说马上去报告律师。但不等律师助手走到办公室门口，门就开了，传出来响亮而热烈的谈话声。一个矮胖的中年人，脸色红一润，留着浓密的小一胡一子，穿一身崭新的服装，正在同法纳林谈话。两人脸上的神色表明，他们刚办完一件有利可图而不太正当的事。
“是您自己作的孽呀，老兄，”法纳林笑嘻嘻地说。
“天堂想进，可就是罪孽深重，上天无门哪。”
“行了，行了，这我们知道。”
两人都不自然地笑起来。
“啊，公爵，请进，”法纳林看见聂赫留朵夫，说道。他对出去的商人又点了一下头，把聂赫留朵夫领进他那陈设庄重的办公室。“请一抽一烟，”律师说着在聂赫留朵夫对面坐下，竭力忍住因刚才那桩得意的买卖而浮起的笑容。
“谢谢，我是为玛丝洛娃的案子来的。”
“好，好，我们这就来研究。哼，那些财主都是骗子手！”他说。“您看到刚才那个家伙吗？他有一千二百万家财。可他还说什么‘上天无门哪’。哼，只要能从您身上捞到一张二十五卢布钞票，他就是用牙也要把它咬到手。”
“他说‘上天无门’，你就说‘二十五卢布钞票’，”聂赫留朵夫想，对这个肆无忌惮的人感到按捺不住的憎恶。律师说话的腔调想表示他同他聂赫留朵夫是同一个圈子里的人，而那些委托他办案的和其他的人则属于另一个圈子，和他们截然不同。
“嘿，他把我折磨得够苦的了，这混蛋！我真想散散心哪，”律师说，仿佛在为他没有立刻谈正经事辩护。“好吧，现在来谈谈您的案子……我已经仔细查阅了案卷，可是就象屠格涅夫说的那样，‘它的内容我不赞成’①，那个该死的律师糟透了，没有给上诉留下任何余地。”
“那您决定怎么办？”
“等一下。告诉他，”律师转身对进来前助手说，“我怎么说，就怎么办；他认为行，很好；他认为不行，就拉倒。”
“可他不同意。”
“哼，那就拉倒，”律师说。他的脸色顿时由快乐和善变得一陰一郁愤怒了。
“有人说，律师都是白拿人家的钱的，”他恢复原来的快乐神色，说，“前不久有个破产的债务人遭到诬告，我救了他。如今大家都纷纷找上门来。但每办一个案子我都得费不少心血。有位作家说，把自己身上的一块肉留在墨水缸里②，这话对我们也适用。好吧，现在来谈谈您的案子，或者说，您感兴趣的那个案子吧，”他继续说，“情况很糟，没有充足的上诉理由，但试一试还是可以的。您看，我写了这样一个状子。”
他拿起一张写满字的纸，跳过那些枯燥乏味的套话，振振有词地念着正文：
“谨呈刑事案上诉部，等等，等等。上诉事由，等等，等等。该案经某某等裁决，等等，玛丝洛娃犯用毒药毒死商人斯梅里科夫罪，根据刑法第一四五四条，等等，判处该犯服苦役，等等。”
--------
①引自屠格涅夫中篇小说《多余人日记》。
②这话其实就是托尔斯泰自己说的。
他念到这里停住了。显而易见，他虽然长年累月惯于办案，但此刻还是津津有味地念着自己写的状子。
“‘此项判决是由严重破坏诉讼程序与错误造成的，’”他振振有词地继续念道，“‘理应予以撤销。第一，在开庭审讯时，斯梅里科夫内脏检查报告刚开始宣读，就为庭长所阻止。’
这是一。”
“不过，您也知道，这是公诉人要求宣读的呀，”聂赫留朵夫惊奇地说。
“那没有关系，辩护人也有理由要求宣读的。”
“不过，说实在的，宣读毫无必要。”
“但这毕竟是个上诉理由哇。再有：‘第二，玛丝洛娃的辩护人，’”律师继续念下去，“‘在发言时有意说明玛丝洛娃的人品，因此涉及到她堕一落的内在原因，却为庭长所阻挠，理由是辩护人这些话同案情没有直接关系。然根据枢密院多次指示，在刑事案件中，被告品德和一精一神面目关系至为重大，至少有利于裁定罪责。’这是二，”他瞅了一眼聂赫留朵夫，说。
“那家伙当时讲得很糟，简直叫人摸不着头绪，”聂赫留朵夫感到越发惊奇，说。
“那小子很笨，当然说不出什么有道理的话来，”法纳林笑着说，“但仍不失为一个理由。好吧，下面还有。‘第三，庭长在总结时完全违反《刑事诉讼法》第八○一条第一款，没有向陪审员们解释，犯罪的概念是根据什么法律因素构成的，也没有向他们说明，即使他们裁定玛丝洛娃对斯梅里科夫下毒事实确凿，也无权根据她并非蓄意谋害而认为她有罪，因此也不能裁定她犯有刑事罪，而只是由于一种过失，一种疏忽，使商人出乎玛丝洛娃的意料死于非命。’这一点是主要的。”
“这一点我们自己也应该懂得。这是我们的过错。”
“‘最后，第四，’”律师继续念道，“‘陪审员们对法庭所提出的玛丝洛娃犯罪问题的答复，在形式上显然是矛盾的。玛丝洛娃被控蓄意毒死斯梅里科夫，目的是谋财，因此她杀人的唯一动机是谋财。然而陪审员们在答复中否定玛丝洛娃有掠夺钱财和参与盗窃贵重财物的目的，由此可见他们本来就要否定被告有谋害一性一命的意图，仅由于庭长总结不完善而引起误解，致使陪审员们在答复中没有用适当方式表明，因此对陪审员们的答复，绝对须援引《刑事诉讼法》第八一六和八○八条，即庭长应当向陪审员们解释他们所犯的错误，退回答复，责成他们重新协商，就被告犯罪问题作出新的答复，’”法纳林读到这里停下来。
“那么庭长究竟为什么不这样做？”
“我也很想知道为什么呢，”法纳林笑着说。
“那么，枢密院会纠正这个错误吗？”
“这要看到时候审理这个案子的是哪些老废物了。”
“怎么是老废物呢？”
“就是养老院里的老废物哇。嗯，就是这么一回事。接下去是这样的：‘这样的裁决使法庭无权判定玛丝洛娃刑事处分。对她引用《刑事诉讼法》第七七一条第三款，显然是严重破坏我国刑事诉讼的基本原则的。基于上述理由，谨呈请某某、某某根据《刑事诉讼法》第九○九条、第九一○条、第九一二条第二款和第九二八条等等，等等，撤销原判，并将本案移一交一该法院另组法庭，重新审理。’就是这样。凡是能做的，都已经做了。不过恕我直说，成功的希望是很小的。但话要说回来，关键在于枢密院里审理这个案子的是哪些人。要是有熟人，您可以去奔走奔走。”
“我认得一些人。”
“那可得抓紧，要不他们都出去医治痔疮，就得等上三个月了……嗯，万一不成功，还可以向皇上告御状。这也要靠幕后活动。这方面我也愿意为您效劳，不是指幕后活动，是指写状子。”
“谢谢您，那么您的酬劳……”
“我的助手会给您一份誊清的状子，他会告诉您的。”
“我还有一件事要向您请教。检察官给了我一张到监狱探望这人的许可证，可是监狱官员对我说，要在规定日期和地点以外探监，还得经省长批准。真的需要这个手续吗？”
“我想是的。不过现在省长不在，由副省长管事。可他是个十足的笨蛋，您找他是什么事也办不成的。”
“您是说马斯连尼科夫吗？”
“是的。”
“我认识他，”聂赫留朵夫说着站起来，准备告辞。
这当儿，一个又黄又瘦、生着狮子鼻、奇丑无比的矮小女人快步闯进房间里来。她就是律师的妻子。她对自己的丑陋显然毫不在意，不仅打扮得与众不同，十分古怪——身上的衣服又是丝绒又是绸缎，颜色鹅黄加上碧绿，——而且她那头稀疏的头发也卷过了。她得意扬扬地闯进接待室。和她同来的是一个高个子男人，脸色如土，满面笑容，身穿缎子翻领的礼服，系一条白领带。这是个作家，聂赫留朵夫认得他。
“阿纳托里，”她推开门说，“你来。你看，谢苗·伊凡内奇答应给我们朗诵他的诗，你可得念念迦尔洵①的作品。”
聂赫留朵夫刚要走，可是律师的妻子同丈夫咬了个耳朵，立刻转过身来对他说话。
--------
①迦尔洵（1855—1888）——俄国作家。
“对不起，公爵，我认得您，我想不用介绍了。我们有个文学晨会，请您光临指教。那会挺有意思。阿纳托里朗诵得好极了。”
“您瞧，我有多少杂差呀！”阿纳托里说。他摊开两手，笑嘻嘻地指指妻子，表示无法抗拒这样一位尤物的命令。
聂赫留朵夫脸色忧郁而严肃，彬彬有礼地向律师太太感谢她的盛情邀请，但因无暇不能参加，接着就走进接待室。
“好一个装腔作势的家伙！”他走后，律师太太这样说他。
在接待室里，律师助手一交一给聂赫留朵夫一份抄好的状子。谈到报酬问题，他说阿纳托里·彼得罗维奇定了一千卢布，并且解释说他本来不接受这类案件，这次是看在聂赫留朵夫面上才办的。
“这个状子该怎样签署，由谁出面？”聂赫留朵夫问。
“可以由被告自己出面，但要是有困难，那么阿纳托里·彼得罗维奇也可以接受她的委托，由他出面。”
“不，我去一趟，叫她自己签个名，”聂赫留朵夫说，因为能有机会在预定日期之前见到玛丝洛娃而感到高兴。