When they returned to Yasnaya Polyana the tables were suddenly- turned, and it was she who complained of being forsaken and made to appear ridiculous. She had just given birth (at the end of May 1866) to her third child, a boy called Ilya, and was nursing him herself, despite the pain she suffered at every feeding. For reasons of convenience, she and her husband were sleeping apart for the first time. Wrapped up in his book, he had less and less time to devote to the estate. Besides, he had been forced to concede that the direct management system he had advocated was a failure, so he hired a new steward. And as luck would have it, the steward had a wife. And the wife was pretty. Worse yet, she was an intellectual, she read, she had ideas about things! A real nihilist! And Lyovochka, the idiot, spent hours talking to her! And, of course, the little schemer was bubbling over with conceit! "It is wrong of him to show so much interest in talking to Marya Ivanovna," Sonya wrote on July 19, 1866, in her diary. "One in the morning soon and still I cannot get to sleep. I have dire premonitions. This nihilist.
our steward's wife, is going to become the bane of my existence." And on July 22, "Why has he gone over there, and in the rain, to boot? lie is attracted by the woman, that's plain. It's driving me out of my mind. I wish her every possible evil, which docs not keep me from being as sweet as honey to her. If only her husband would quickly turn out to be incompetent, then they would both go away . . ." A fortnight later her jealousy subsided and she herself admitted that it was "almost unfounded."
It would indeed have been petty of her to harbor suspicions of her husband just then, for he had his hands full with a far more serious matter. Early in July 1866 two officers, Lieutenants Kolokoltsov and Stasulevich, had come to call 011 him in a state of great agitation; they were friends of the Behrs family and were serving in the 65th Moscow Infantry Regiment, which was on maneuvers in the vicinity of Yasnaya Polyana, and they had come to tell him about Quartermaster Sergeant Shabunin, who was accused of having struck his captain. According to Stasulcvich, Shabunin was a drunkard, rather weak in the head, and was convinced that he was persecuted by his commanding officer, who not only had him regularly put into prison for intemperance or misconduct, but also compelled him to copy documents over and over again, on the pretext that his writing was illegible or his lines crooked. It was because his sarcastic, frigid superior made him feel continually at fault that the poor wretch had resorted to violence. The case was serious, for under the Russian military code his offense was punishable by death. The two lieutenants had been appointed to sit on the court-martial with Colonel Yunosha, commander of the regiment, and they wanted Tolstoy to defend the accuscd. Tempted by the challenge, he accepted.
The next day he went to the village of Ozerki and obtained permission to interview Shabunin in the isba in which he was being detained, lie found a stocky redhead who answered "Quite so, quite so!" to every question, glassy-cycd, his little finger pressed against his trouser-seam. Nevertheless, this imbecilc was a human being and, as such, worth 110 less than Colonel Yunosha himself in the eyes of God. Could one man be deprived of his life as punishment for striking another? There was a shocking disproportion between the crime and the punishment. Tolstoy spent the night preparing his brief on the basis of the meager information he had been able to glean. He tactfully agreed that it was necessary to set an exemplary punishment for crimes such as that committed by Shabunin, but lie asked the judges to note that the accused was covered by the provisions of Articles 109 and 116, whereby the penalty might be reduced if the criminal was not of sound mind. He argued that not only was the accused mentally retarded, but
also, under the influence of alcohol, his condition bordered on insanity. Did one have the right to sentence a madman to death? At the close of his speech Tolstoy declared, "The court must let itself be guided by the spirit of our entire legislation, which ever weights the scales of justice on the side of clemency."
The court-martial sat on July i6f in a nobleman's home in the village of Yasenki. A government-appointed judge made a special trip from Moscow. Tolstoy was intimidated, and read out his speech without conviction. At one point the tears came to his eyes. The quartermaster sergeant listened, gaping, to all these big words being used about his small self. The judges withdrew to deliberate. Tolstoy was certain his speech would move them to indulgence, especially as he thought he could count on the support of Stasulcvich and Kolokoltsov, the assistants. But when they l>cgan to deliberate, Stasulevich alone favored partial irresponsibility. Colonel Yunosha held out for the unqualified application of Article 604, i.e., the death penalty. Shaken by his intransigence, Kolokoltsov weakened, even though he had been the one to ask Tolstoy to defend Shabunin, and voted with his superior for fear of displeasing him. This shift settled the issue. "He was," said Tolstoy, "a good lad, light-hearted and completely absorbed at that time by his Cossack horse, on which he loved to caracole." Shabunin was sentenced to go before the firing squad.
Tolstoy immediately decided to appeal for an imperial reprieve. As always, when anyone in high places was involved, he called on his babushka Alexandra. The old maid of honor took her nephew's request to Milyutin, the minister of war. But in his haste, Tolstoy had neg- lectcd to mention Shabunin's regiment. Using this as a pretext, Milyutin replied that he could not submit an incomplete appeal to his emperor. Informed of this development, Tolstoy rushed to Tula and telegraphed the information: too late. The time limit for lodging an appeal had expired.
Shabunin was executed on August 9, 1866 in front of a mass of peasants from the neighboring villages. Throughout his imprisonment they had brought eggs and cakes to his cell. They crossed themselves when he was led out, pale and calm; they obscurely sensed that the man's punishment was out of proportion to his crime, and the Russians have always sympathized with the victims of official justice. Shabunin kissed the cross held out by the priest and let them covcr his eyes and tie him to the post. Twelve soldiers raised their guns and took aim. The drums rolled. When the salvo rang out, the peasants fell to their knees and began to pray. According to the military custom of the day, the regiment, led by its band, paraded past the trench. Later, when
the quartermaster sergeant's tomb had become a landmark for pilgrims, the authorities had it leveled and posted guards to prevent people from gathering at the scene of the execution.
Tolstoy felt doubly guilty for this death: first, because he had failed to sway the judges, and then, because he had made an unpardonable oversight in his appeal. Forty-two years later he said his plea to the court had been "stupid and shameful"; he should have spoken out, affirmed that capital punishment was a revolting practice, "contrary to human nature," and challenged the right of uniformed magistrates to dispose of the life of one of their fellows; he should have asked Alexander II, not to pardon the unfortunate man, for that was beyond the power of any human, but to pray for his own soul, "in order to extricate himself from his dreadful position as accomplice to every crime committed in the name of the law."16
It is not likely that this approach would have prevailed over cither judges or tsar and, far from furthering Shabunin's cause, it would probably have destroyed his last chance of survival. But that way, at least, Tolstoy's conscience would have been clear. As he grew older, his theories' tangible results mattered less to him than the moral satisfaction they offered.