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diff --git a/11987-0.txt b/11987-0.txt new file mode 100644 index 0000000..56a624c --- /dev/null +++ b/11987-0.txt @@ -0,0 +1,8457 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 11987 *** + +[Illustration: At that moment ... Mr. Tutt emerged from behind the jury box +and took his stand at Tony's side.] + + + + +By Advice of Counsel + + +Being Adventures of +the Celebrated Firm of + +Tutt & Tutt + +Attorneys & Counsellors at Law + + +By + +Arthur Train + + +With Frontispiece + +By Arthur William Brown + + + +Published March, 1921 + + + + +CONTENTS + + +THE SHYSTER + +THE KID AND THE CAMEL + +CONTEMPT OF COURT + +BY ADVICE OF COUNSEL + +"THAT SORT OF WOMAN" + +YOU'RE ANOTHER! + +BEYOND A REASONABLE DOUBT + + + + +The Shyster + + + Shyster, n. [Origin obscure.] One who does business trickily; a + person without professional honor: used chiefly of lawyers; as, + pettifoggers and shysters.--CENTURY DICTIONARY. + +When Terry McGurk hove the brick through the window of Froelich's +butcher shop he did it casually, on general principles, and without any +idea of starting anything. He had strolled unexpectedly round the corner +from his dad's saloon, had seen the row going on between Froelich and +the gang of boys that after school hours used the street in front of the +shop as a ball ground, and had merely seized the opportunity to +vindicate his reputation as a desperado and put one over on the +Dutchman. The fact that he had on a red sweater was the barest +coincidence. Having observed the brick to be accurately pursuing its +proper trajectory he had ducked back round the corner again and +continued upon his way rejoicing. He had not even noticed Tony Mathusek, +who, having accidentally found himself in the midst of the mêlée, had +started to beat a retreat the instant of the crash, and had run plump +into the arms of Officer Delany of the Second. Unfortunately Tony too +was wearing a red sweater. + +"I've got you, you young devil!" exulted Delany. "Here's one of 'em, +Froelich!" + +"Dot's him! It was a feller mit a red sweater! Dot's the vun who done +it!" shrieked the butcher. "I vill make a gomblaint against him!" + +"Come along, you! Quit yer kickin'!" ordered the cop, twisting Tony's +thin arm until he writhed. "You'll identify him, Froelich?" + +"Sure! Didn't I see him mit my eyes? He's vun of dem rascals vot drives +all mine gustomers avay mit deir yelling and screaming. You fix it for +me, Bill." + +"That's all right," the officer assured him. "I'll fix him good, I will! +It's the reformatory for him. Or, say, you can make a complaint for +malicious mischief." + +"Sure! Dot's it! Malicious mischief!" assented the not over-intelligent +tradesman. "Ve'll get rid of him for good, eh?" + +"Sure," assented Delany. "Come along, you!" + +Tony Mathusek lifted a white face drawn with agony from his tortured +arm. + +"Say, mister, you got the wrong feller! I didn't break the window. I was +just comin' from the house--" + +"Aw, shut up!" sneered Delany. "Tell that to the judge!" + +"Y' ain't goin' to take me to jail?" wailed Tony. "I wasn't with them +boys. I don't belong to that gang." + +"Oh, so you belong to a gang, do ye? Well, we don't want no gangsters +round here!" cried the officer with adroit if unscrupulous sophistry. +"Come along now, and keep quiet or it'll be the worse for ye." + +"Can't I tell my mother? She'll be lookin' for me. She's an old lady." + +"Tell nuthin'. You come along!" + +Tony saw all hope fade. He hadn't a chance--even to go to a decent +jail! He had heard all about the horrors of the reformatory. They +wouldn't even let your people visit you on Sundays! And his mother would +think he was run over or murdered. She would go crazy with worry. He +didn't mind on his own account, but his mother-- He loved the old +widowed mother who worked her fingers off to send him to school. And he +was the only one left, now that Peter had been killed in the war. It was +too much. With a sudden twist he tore out of his coat and dashed blindly +down the street. As well might a rabbit hope to escape the claws of a +wildcat. In three bounds Delany had him again, choking him until the +world turned black. + +But this is not a story about police brutality, for most cops are not +brutal. Delany was an old-timer who believed in rough methods. He +belonged, happily, to a fast-vanishing system more in harmony with the +middle ages than with our present enlightened form of municipal +government. He remained what he was for the reason that farther up in +the official hierarchy there were others who looked to him, when it was +desirable, to deliver the goods--not necessarily cash--but to stand with +the bunch. These in turn were obligated on occasion, through +self-interest or mistaken loyalty to friend or party, to overlook +trifling irregularities, to use various sorts of pressure, or to forget +what they were asked to forget. There was a far-reaching web of +complicated relationships--official, political, matrimonial, commercial +and otherwise--which had a very practical effect upon the performance of +theoretical duty. + +Delany was neither an idealist nor a philosopher. He was an empiricist, +with a touch of pragmatism--though he did not know it. He was "a +practical man." Even reform administrations have been known to advocate +a liberal enforcement of the laws. Can you blame Delany for being +practical when others so much greater than he have prided themselves +upon the same attribute of practicality? There were of course a lot of +things he simply had to do or get out of the force; at any rate, had he +not done them his life would have been intolerable. These consisted in +part of being deaf, dumb and blind when he was told to be so--a +comparatively easy matter. But there were other things that he had to +do, as a matter of fact, to show that he was all right, which were not +only more difficult, but expensive, and at times dangerous. + +He had never been called upon to swear away an innocent man's liberty, +but more than once he had had to stand for a frame-up against a guilty +one. According to his cop-psychology, if his side partner saw something +it was practically the same as if he had seen it himself. That +phantasmagorical scintilla of evidence needed to bolster up a weak or +doubtful case could always be counted on if Delany was the officer who +had made the arrest. None of his cases were ever thrown out of court for +lack of evidence, but then, Delany never arrested anybody who wasn't +guilty! + +Of course he had to "give up" at intervals, depending on what +administration was in power, who his immediate superior was, and what +precinct he was attached to, but he was not a regular grafter by any +means. He was an occasional one merely; when he had to be. He did not +consider that he was being grafted on when expected to contribute to +chowders, picnics, benevolent associations, defense funds or wedding +presents for high police officials. Neither did he think that he was +taking graft because he amicably permitted Froelich to leave a +fourteen-pound rib roast every Saturday night at his brother-in-law's +flat. In the same way he regarded the bills slipped him by Grabinsky, +the bondsman, as well-earned commissions, and saw no reason why the +civilian clothes he ordered at the store shouldn't be paid for by some +mysterious friendly person--identity unknown--but shrewdly suspected to +be Mr. Joseph Simpkins, Mr. Hogan's runner. Weren't there to be any +cakes and ale in New York simply because a highbrow happened to be +mayor? Were human kindness, good nature and generosity all dead? Would +he have taken a ten-dollar bill--or even a hundred-dollar one--from +Simpkins when he was going to be a witness in one of Hogan's cases? Not +on your life! He wasn't no crook, he wasn't! He didn't have to be. He +was just a cog in an immense wheel of crookedness. When the wheel came +down on his cog he automatically did his part. + +I perceive that the police are engaging too much of our attention. But +it is necessary to explain why Delany was so ready to arrest Tony +Mathusek, and why as he dragged him into the station house he beckoned +to Mr. Joey Simpkins, who was loitering outside in front of the deputy +sheriff's office, and whispered behind his hand, "All right. I've got +one for you!" + +Then the machine began to work as automatically as a cash register. Tony +was arraigned at the bar, and, having given his age as sixteen years and +five days, charged with the "malicious destruction of property, to wit, +a plate-glass window of one Karl Froelich, of the value of one hundred +and fifty dollars." Mr. Joey Simpkins had shouldered his way through the +smelly push and taken his stand beside the bewildered and half-fainting +boy. + +"It's all right, kid. Leave it to me," he said, encircling him with a +protecting arm. Then to the clerk: "Pleads not guilty." + +The magistrate glanced over the complaint, in which Delany, to save +Froelich trouble, had sworn that he had seen Tony throw the brick. +Hadn't the butcher said he'd seen him? Besides, that let the Dutchman +out of a possible suit for false arrest. Then the magistrate looked down +at the cop himself. + +"Do you know this boy?" he asked sharply. + +"Sure, Yerroner. He's a gangster. Admitted it to me on the way over." + +"Are you really over sixteen?" suddenly demanded the judge, who knew and +distrusted Delany, having repeatedly stated in open court that he +wouldn't hang a yellow dog on his testimony. The underfed, undersized +boy did not look more than fourteen. + +"Yes, sir," said Tony. "I was sixteen last week." + +"Got anybody to defend you?" + +Tony looked at Simpkins inquiringly. He seemed a very kind gentleman. + +"Mr. Hogan's case, judge," answered Joey. "Please make the bail as low +as you can." + +Now this judge was a political accident, having been pitchforked into +office by the providence that sometimes watches over sailors, drunks and +third parties. Moreover, in spite of being a reformer he was nobody's +fool, and when the other reformers who were fools got promptly fired out +of office he had been reappointed by a supposedly crooked boss simply +because, as the boss said, he had made a hell of a good judge and they +needed somebody with brains here and there to throw a front. +Incidentally, he had a swell cousin on Fifth Avenue who had invited the +boss and his wife to dinner, by reason of which the soreheads who lost +out went round asking what kind of a note it was when a silk-stocking +crook could buy a nine-thousand-dollar job for a fifty-dollar dinner. +Anyhow, he was clean and clean-looking, kindly, humorous and wise above +his years--which were thirty-one. And Tony looked to him like a poor +runt, Simpkins and Delany were both rascals, Froelich wasn't in court, +and he sensed a nigger somewhere. He would have turned Tony out on the +run had he had any excuse. He hadn't, but he tried. + +"Would you like an immediate hearing?" he asked Tony in an encouraging +tone. + +"Mr. Hogan can't be here until to-morrow morning," interposed Simpkins. +"Besides, we shall want to produce witnesses. Make it to-morrow +afternoon, judge." + +Judge Harrison leaned forward. + +"Are you sure you wouldn't prefer to have the hearing now?" he inquired +with a smile at the trembling boy. + +"Well, I want to get Froelich here--if you're going to proceed now," +spoke up Delany. "And I'd like to look up this defendant's record at +headquarters." + +Tony quailed. He feared and distrusted everybody, except the kind Mr. +Simpkins. He suspected that smooth judge of trying to railroad him. + +"No! No!" he whispered to the lawyer. "I want my mother should be here; +and the janitor, he knows I was in my house. The rabbi, he will give me +a good character." + +The judge heard and shrugged his bombazine-covered shoulders. It was no +use. The children of darkness were wiser in their generation than the +children of light. + +"Five hundred dollars bail," he remarked shortly. "Officer, have your +witnesses ready to proceed to-morrow afternoon at two o'clock." + + * * * * * + +"Mr. Tutt," said Tutt with a depressed manner as he watched Willie +remove the screen and drag out the old gate-leg table for the firm's +daily five o'clock tea and conference in the senior partner's office, +"if a man called you a shyster what would you do about it?" + +The elder lawyer sucked meditatively on the fag end of his stogy before +replying. + +"Why not sue him?" Mr. Tutt inquired. + +"But suppose he didn't have any money?" replied Tutt disgustedly. + +"Then why not have him arrested?" continued Mr. Tutt. "It's libelous +_per se_ to call a lawyer a shyster." + +"Even if he is one," supplemented Miss Minerva Wiggin ironically, as she +removed her paper cuffs preparatory to lighting the alcohol lamp under +the teakettle. "The greater the truth the greater the libel, you know!" + +"And what do you mean by that?" sharply rejoined Tutt. "You don't--" + +"No," replied the managing clerk of Tutt & Tutt. "I don't! Of course +not! And frankly, I don't know what a shyster is." + +"Neither do I," admitted Tutt. "But it sounds opprobrious. Still, that +is a rather dangerous test. You remember that colored client of ours who +wanted us to bring an action against somebody for calling him an +Ethiopian!" + +"There's nothing dishonorable in being an Ethiopian," asserted Miss +Wiggin. + +"A shyster," said Mr. Tutt, reading from the Century Dictionary, "is +defined as 'one who does business trickily; a person without +professional honor; used chiefly of lawyers.'" + +"Well?" snapped Tutt. + +"Well?" echoed Miss Wiggin. + +"H'm! Well!" concluded Mr. Tutt. + +"I nominate for the first pedestal in our Hall of Legal Ill +Fame--Raphael B. Hogan," announced Tutt, complacently disregarding all +innuendoes. + +"But he's a very elegant and gentlemanly person," objected Miss Wiggin +as she warmed the cups. "My idea of a shyster is a down-at-the-heels, +unshaved and generally disreputable-looking police-court +lawyer--preferably with a red nose--who murders the English +language--and who makes his living by preying upon the ignorant and +helpless." + +"Like Finklestein?" suggested Tutt. + +"Exactly!" agreed Miss Wiggin. "Like Finklestein." + +"He's one of the most honorable men I know!" protested Mr. Tutt. "My +dear Minerva, you are making the great mistake--common, I confess, to a +large number of people--of associating dirt and crime. Now dirt may +breed crime, but crime doesn't necessarily breed dirt." + +"You don't have to be shabby to prey upon the ignorant and helpless," +argued Tutt. "Some of our most prosperous brethren are the worst sharks +out of Sing Sing." + +"That is true!" she admitted, "but tell it not in Gath!" + +"A shyster," began Mr. Tutt, unsuccessfully applying a forced draft to +his stogy and then throwing it away, "bears about the same relation to +an honest lawyer as a cad does to a gentleman. The fact that he's well +dressed, belongs to a good club and has his name in the Social Register +doesn't affect the situation. Clothes don't make men; they only make +opportunities." + +"But why is it," persisted Miss Wiggin, "that we invariably associate +the idea of crime with that of 'poverty, hunger and dirt'?" + +"That is easy to explain," asserted Mr. Tutt. "The criminal law +originally dealt only with crimes of violence--such as murder, rape and +assault. In the old days people didn't have any property in the modern +sense--except their land, their cattle or their weapons. They had no +bonds or stock or bank accounts. Now it is of course true that rough, +ignorant people are much more prone to violence of speech and action +than those of gentle breeding, and hence most of our crimes of violence +are committed by those whose lives are those of squalor. But"--and here +Mr. Tutt's voice rose indignantly--"our greatest mistake is to assume +that crimes of violence are the most dangerous to the state, for they +are not. They cause greater disturbance and perhaps more momentary +inconvenience, but they do not usually evince much moral turpitude. +After all, it does no great harm if one man punches another in the head, +or even in a fit of anger sticks a dagger in him. The police can easily +handle all that. The real danger to the community lies in the crimes of +duplicity--the cheats, frauds, false pretenses, tricks and devices, +flimflams--practised most successfully by well-dressed gentlemanly +crooks of polished manners." + +By this time the kettle was boiling cheerfully, quite as if no such +thing as criminal law existed at all, and Miss Wiggin began to make the +tea. + +"All the same," she ruminated, "people--particularly very poor +people--are often driven to crime by necessity." + +"It's Nature's first law," contributed Tutt brightly. + +Mr. Tutt uttered a snort of disgust. + +"It may be Nature's first law, but it's about the weakest defense a +guilty man can offer. 'I couldn't help myself' has always been the +excuse for helping oneself!" + +"Rather good--that!" approved Miss Wiggin. "Can you do it again?" + +"The victim of circumstances is inevitably one who has made a victim of +someone else," blandly went on Mr. Tutt without hesitation. + +"Ting-a-ling! Right on the bell!" she laughed. + +"It's true!" he assured her seriously. "There are two defenses that are +played out--necessity and instigation. They've never been any good since +the Almighty overruled Adam's plea in confession and avoidance that a +certain female co-defendant took advantage of his hungry innocence and +put him up to it." + +"No one could respect a man who tried to hide behind a woman's skirts!" +commented Tutt. + +"Are you referring to Adam?" inquired his partner. "Anyhow, come to +think of it, the maxim is not that 'Necessity is the first law of +Nature,' but that 'Necessity knows no law.'" + +"I'll bet you--" began Tutt. Then he paused, recalling a certain +celebrated wager which he had lost to Mr. Tutt upon the question of who +cut Samson's hair. "I bet you don't know who said it!" he concluded +lamely. + +"If I recall correctly," ruminated Mr. Tutt, "Shakspere says in 'Julius +Caesar' that 'Nature must obey necessity'; while Rabelais says +'Necessity has no law'; but the quotation we familiarly use is +'Necessity knows no law except to conquer,' which is from Publilius +Syrus." + +"From who?" cried Tutt in ungrammatical surprise. + +"Never mind!" soothed Miss Wiggin. "Anyway, it wasn't Raphael B. Hogan." + +"Who certainly completely satisfies your definition so far as preying +upon the ignorant and helpless is concerned," said Mr. Tutt. "That man +is a human hyena--worse than a highwayman." + +"Yet he's a swell dresser," interjected Tutt. "Owns his house and lives +in amity with his wife." + +"Doubtless he's a loyal husband and a devoted father," agreed Mr. Tutt. +"But so, very likely, is the hyena. Certainly Hogan hasn't got the +excuse of necessity for doing what he does." + +"Don't you suppose he has to give up good and plenty to somebody?" +demanded Tutt. "Cops and prison keepers and bondsmen and under sheriffs, +and all kinds of crooked petty officials. I should worry!" + + + _"Great fleas have little fleas upon their backs to bite 'em, + And little fleas have lesser fleas, and so ad infinitum,"_ + +quoted Miss Wiggin reminiscently. + +"A flea has to be a flea," continued Tutt. "He, or it, can't be anything +else, but Hogan doesn't have to be a lawyer. He could be an honest man +if he chose." + +"He? Not on your life! He couldn't be honest if he tried!" roared Mr. +Tutt. "He's just a carnivorous animal! A man eater! They talk about +scratching a Russian and finding a Tartar; I'd hate to scratch some of +our legal brethren." + +"So would I!" assented Tutt. "I guess you're right, Mr. Tutt. +Christianity and the Golden Rule are all right in the upper social +circles, but off Fifth Avenue there's the same sort of struggle for +existence that goes on in the animal world. A man may be all sweetness +and light to his wife and children and go to church on Sundays; he may +even play pretty fair with his own gang; but outside of his home and +social circle he's a ravening wolf; at least Raphael B. Hogan is!" + + * * * * * + +The subject of the foregoing entirely accidental conversation was at +that moment standing contemplatively in his office window smoking an +excellent cigar preparatory to returning to the bosom of his family. +Raphael B. Hogan believed in taking life easily. He was accustomed to +say that outside office hours his time belonged to his wife and +children; and several times a week he made it his habit on the way home +to supper to stop at the florist's or the toy shop and bear away with +him inexpensive tokens of his love and affection. On the desk behind +him, over which in the course of each month passed a lot of very tainted +money, stood a large photograph of Mrs. Hogan, and another of the three +little Hogans in ornamented silver frames, and his face would soften +tenderly at the sight of their self-conscious faces, even at a moment +when he might be relieving a widowed seamstress of her entire +savings-bank account. After five o'clock this hyena purred at his wife +and licked his cubs; the rest of the time he knew no mercy. + +But he concealed his cruelty and his avarice under a mask of benignity. +He was fat, jolly and sympathetic, and his smile was the smile of a +warm-hearted humanitarian. The milk of human kindness oozed from his +every pore. In fact, he was always grumbling about the amount of work he +had to do for nothing. He was a genial, generous host; unostentatiously +conspicuous in the local religious life of his denomination; in court a +model of obsequious urbanity, deferential to the judges before whom he +appeared and courteous to all with whom he was thrown in contact. A +good-natured, easy-going, simple-minded fat man; deliberate, slow of +speech, well-meaning, with honesty sticking out all over him, you would +have said; one in whom the widow and the orphan would have found a +staunch protector and an unselfish friend. And now, having thus subtly +connoted the character of our villain, let us proceed with our +narrative. + +The telephone buzzed on the wall set beside him. + +"That you, chief?" came the voice of Simpkins. + +"Yep." + +"Got one off Delany." + +"What is it?" + +"Kid smashed a window--malicious mischief. Held for examination +to-morrow at two. Five hundred bail." + +"Any sugar?" + +"Don't know. Says his father's dead and mother earns seventeen a week in +a sweatshop and sends him to school. Got some insurance. I'm going right +round there now." + +"Well," replied Hogan, "don't scare her by taking too much off her at +first. I suppose there's evidence to hold him?" + +"Sure. Delany says he saw it." + +"All right. But go easy! Good night." + +"Leave that to me, chief!" assured Simpkins. "See you to-morrow." + +It will be observed that in this professional interchange nothing at all +was said regarding the possibility of establishing Tony's innocence, but +that on the contrary Mr. Simpkins' mind was concentrated upon his +mother's ability to pay. This was the only really important +consideration to either of them. But Hogan did not worry, because he +knew that Simpkins would skilfully entangle Mrs. Mathusek in such a web +of apprehension that rather than face her fears she would if necessary +go out and steal the money. So Mr. Raphael B. Hogan hung up the receiver +and with his heart full of gentle sympathy for all mankind walked slowly +home, pausing to get some roses for Mrs. Hogan and to buy a box for +Daddy Long Legs at the Strand, for whenever he got a new case he always +made it the occasion for a family party, and he wanted the children to +benefit by passing an evening under the sweet influence of Miss +Pickford. + +Now just at the moment that his employer was buying the roses Mr. +Simpkins entered the apartment of Mrs. Mathusek and informed her of +Tony's arrest and incarceration. He was very sympathetic about it, very +gentle, this dapper little man with the pale gray eyes and inquisitive, +tapirlike nose; and after the first moment of shock Mrs. Mathusek took +courage and begged the gentleman to sit down. There are always two +vultures hanging over the poor--death and the law; but of the two the +law is the lesser evil. The former is a calamity; the latter is a +misfortune. The one is final, hopeless, irretrievable; from the other +there may perhaps be an escape. She knew Tony was a good boy; was sure +his arrest was a mistake, and that when the judge heard the evidence he +would let Tony go. Life had dealt hardly with her and made her an old +woman at thirty-four, really old, not only in body but in spirit, just +as in the middle ages the rigor of existence made even kings old at +thirty-five. What do the rich know of age? The women of the poor have a +day of spring, a year or two of summer, and a lifetime of autumn and +winter. + +Mrs. Mathusek distrusted the law and lawyers in the abstract, but Mr. +Simpkins' appearance was so reassuring that he almost counteracted in +her mind the distress of Tony's misfortune. He was clearly a gentleman, +and she had a reverential regard for the gentry. What gentlefolk said +was to be accepted as true. In addition this particular gentleman was +learned in the law and skilled in getting unfortunate people out of +trouble. Now, though Mr. Simpkins possessed undoubtedly this latter +qualification, it was also true that he was equally skilled in getting +people into it. If he ultimately doubled their joys and halved their +sorrows he inevitably first doubled their sorrows and halved their +savings. Like the witch in Macbeth: "Double, double toil and trouble." +His aims were childishly simple: First, to find out how much money his +victim had, and then to get it. + +His methods were no more complicated than his aims and had weathered the +test of generations of experience. So: + +"Of course Tony must be bailed out," he said gently. "You don't want him +to spend the night in jail." + +"Jail! Oh, no! How much is the bail?" cried Tony's mother. + +"Only five hundred dollars." His pale gray eyes were watching her for +the slightest sign of suspicion. + +"Five hundred dollars! Eoi! Eoi! It is a fortune! Where can I get five +hundred dollars?" She burst into tears. "I have saved only one hundred +and sixty!" + +Mr. Simpkins pursed his lips. Then there was nothing for it! He reached +for his hat. Mrs. Mathusek wrung her hands. Couldn't the gentleman go +bail for Tony? He was such a dear, kind, good gentleman! She searched +his face hungrily. Mr. Simpkins falteringly admitted that he did not +possess five hundred dollars. + +"But--" he hesitated. + +"Yes!" + +"But--" she echoed, seizing his sleeve and dragging him back. + +Mr. Simpkins thought that they could hire somebody to go bail; no, in +that case there would be no money to pay the great lawyer whom they must +at once engage to defend her son--Mr. Hogan, one who had the pull and +called all the judges by their first names. He would not usually go into +court for less than five hundred dollars, but Mr. Simpkins said he would +explain the circumstances to him and could almost promise Mrs. Mathusek +that he would persuade him to do it this once for one hundred and fifty. +So well did he act his part that Tony's mother had to force him to take +the money, which she unsewed from inside the ticking of her mattress. +Then he conducted her to the station house to show her how comfortable +Tony really was and how much better it was to let him stay in jail one +night and make sure of his being turned out the next afternoon by giving +the money to Mr. Hogan, than to use it for getting bail for him and +leave him lawyerless and at the mercy of his accusers. When Mrs. +Mathusek saw the cell Tony was in she became even more frightened than +she had been at first. But by that time she had already given the money +to Simpkins. + +Second thoughts are ofttimes best. Most crooks are eventually caught +through their having, from long immunity, grown careless and yielded to +impulse. Once he had signed the complaint in which he swore that he had +seen Tony throw the brick, Delany had undergone a change of heart. Being +an experienced policeman he was sensitive to official atmosphere, and he +had developed a hunch that Judge Harrison was leery of the case. The +more he thought of it the less he liked the way the son-of-a-gun had +acted, the way he'd tried to get Mathusek to ask for an immediate +hearing. Why had he ever been such a fool as to sign the complaint +himself? It had been ridiculous--just because he was mad at the boy for +trying to get away and wanted to make things easy for Froelich. If he +went on the stand the next afternoon he'd have to make up all sorts of +fancy details, and Hogan would have his skin neatly tacked to the barn +doors for keeps. Thereafter, no matter what happened, he'd never be able +to change his testimony. After all, it would be easy enough to abandon +the charge at the present point. It was a genuine case of cold feet. He +scented trouble. He wanted to renig while the renigging was good. What +in hell had Froelich ever done for him, anyhow? A few measly pieces of +roast! + +When Hogan returned home that evening with the little Hogans from the +movies he found the cop waiting for him outside his door. + +"Look here," Delany whispered, "I'm going to can this here Mathusek +window case. I'm going to fall down flat on my identification and give +you a walkout. So go easy on me--and sort of help me along, see?" + +"The hell you are!" retorted Hogan indignantly. "Then where do I come +in, eh? Why don't you come through?" + +"But I've got him wrong!" pleaded Delany. "You don't want me to put my +neck in a sling, do you, so as you can make a few dollars? Look at all +the money I've sent your way. Have a heart, Rafe!" + +"Bull!" sneered the Honorable Rafe. "A man's gotta live! You saw him do +it! You've sworn to it, haven't you?" + +"I made a mistake." + +"How'll that sound to the commissioner? An' to Judge Harrison? No, no! +Nothin' doin'! If you start anything like that I'll roast the life out +of you!" + +Delany spat as near Hogan's foot as he elegantly could. + +"You're a hell of a feller, you are!" he growled, and turned his back on +him as upon Satan. + + * * * * * + +The brick that Terry McGurk hurled as a matter of principle through +Froelich's window produced almost as momentous consequences as the want +of the horseshoe nail did in Franklin's famous maxim. It is the unknown +element in every transaction that makes for danger. + +The morning after the catastrophe Mr. Froelich promptly made application +to the casualty company with which he had insured his window for +reimbursement for his damage. Just as promptly the company's lawyer +appeared at the butcher shop and ascertained that the miscreant who had +done the foul deed had been arrested and was to be brought into court +that afternoon. This lawyer, whose salary depended indirectly upon the +success which attended his efforts to secure the conviction and +punishment of those who had cost his company money, immediately camped +upon the trails of both Froelich and Delany. It was up to them, he said, +to have the doer of wanton mischief sent away. If they didn't cooperate +he would most certainly ascertain why. Now insurance companies are +powerful corporations. They can do favors, and contrariwise they can +make trouble, and Lawyer Asche was hot under the collar about that +window. Had he ever heard of the place he would have likened it to the +destruction of Coucy-le-Château by the Huns. + +This, for Delany, put an entirely new aspect upon the affair. It was one +thing to ditch a case and another to run up against Nathan Asche. He had +sworn to the complaint and if he didn't make good on the witness stand +Asche would get his hide. Then he bethought him that if only Froelich +was sufficiently emphatic in his testimony a little uncertainty on his +own part might be excused. + +In the meantime, however, two things had happened to curdle Froelich's +enthusiasm. First, his claim against the Tornado Casualty Company had +been approved, and second, he had been informed on credible authority +that they had got the wrong boy. Now he had sincerely thought that he +had seen Tony throw the brick--he had certainly seen a boy in a red +sweater do something--but he realized also that he had been excited and +more or less bewildered at the time; and his informant--Mrs. Sussman, +the wife of the cigar dealer--alleged positively that it had been thrown +by a strange kid who appeared suddenly from round the corner and as +suddenly ran away in the direction whence he had come. + +Froelich perceived that he had probably been mistaken, and being +relatively honest--and being also about to get his money--and not +wishing to bear false witness, particularly if he might later be sued +for false imprisonment, he decided to duck and pass the buck to Delany, +who was definitely committed. He was shrewd enough, however, not to give +his real reason to the policeman, but put it on the ground of being so +confused that he couldn't remember. This left Delany responsible for +everything. + +"But you said that that was the feller!" argued the cop, who had gone to +urge Froelich to assume the onus of the charge. "And now you want to +leave me holdin' the bag!" + +"Vell, you said yourself you seen him, didn't you?" replied the German. +"An' you svore to it. I didn't svear to noddings." + +"Aw, you!" roared the enraged cop, and hastened to interview Mr. Asche. + +Aping a broad humanitarianism he suggested to Asche that if Mrs. +Mathusek would pay for the window they could afford to let up on the +boy. He did it so ingeniously that he got Asche to go round there, only +to find that she had no money, all given to Simpkins. Gee, what a +mix-up! + +It is quite possible that even under these circumstances Delany might +still have availed himself of what in law is called a _locus +poenitentiae_ had it not been that the mix-up was rendered still more +mixed by the surreptitious appearance in the case of Mr. Michael McGurk, +the father of the actual brick artist, who had learned that the cop was +getting wabbly and was entertaining the preposterous possibility of +withdrawing the charge against the innocent Mathusek, to the imminent +danger of his own offspring. In no uncertain terms the saloon keeper +intimated to the now embarrassed guardian of the public peace that if he +pulled anything like that he would have him thrown off the force, to say +nothing of other and darker possibilities connected with the morgue. +All of which gave Delany decided pause. + +Hogan, for his own reasons, had meanwhile reached an independent +conclusion as to how he could circumvent Delany's contemplated +treachery. If, he decided, the cop should go back on his identification +of the criminal he foresaw Tony's discharge in the magistrate's court, +and no more money. The only sure way, therefore, to prevent Tony's +escape would be by not giving Delany the chance to change his testimony; +and by waiving examination before the magistrate and consenting +voluntarily to having his client held for the action of the grand jury, +in which event Tony would be sent to the Tombs and there would be plenty +of time for Simpkins to get an assignment of Mrs. Mathusek's insurance +money before the grand jury kicked out the case. This also had the +additional advantage of preventing any funny business on the part of +Judge Harrison. + +Delany was still undecided what he was going to do when the case was +called at two o'clock. It is conceivable that he might still have tried +to rectify his error by telling something near the truth, in spite of +Hogan, Asche and McGurk, but the opportunity was denied him. + +At two o'clock Tony, a mere chip tossed aimlessly hither and yon by +eddies and cross currents, the only person in this melodrama of motive +whose interests were not being considered by anybody, was arraigned at +the bar and, without being consulted in the matter, heard Mr. Hogan, the +fat, kindly lawyer whom his mother had retained to defend him, tell the +judge that they were going to waive examination and consent to be held +for the action of the grand jury. + +"You see how it is, judge," Hogan simpered. "You'd have no choice but to +hold my client on the officer's testimony. The easiest way is to waive +examination and let the grand jury throw the case out of the window!" + +Delany heard this announcement with intense relief, for it let him out. +It would relieve him from the dangerous necessity of testifying before +Judge Harrison and he could later spill the case before the grand jury +when called before that august body. Moreover, he could tip off the +district attorney in charge of the indictment bureau that the case was a +lemon, and the latter would probably throw it out on his own motion. The +D.A.'s office didn't want any more rotten cases to prosecute than it +could help. It seemed his one best bet, the only way to get his feet out +of the flypaper. What a mess for a few pieces of rotten beef! + +"You understand what is being done, do you?" inquired the keen-faced +judge sharply. "You understand this means that unless you give bail you +will have to stay in jail until the grand jury dismisses the case or +finds an indictment against you?" + +Underneath the cornice of the judge's dais Hogan patted his arm, and +Tony, glancing for encouragement at the big friendly face above him, +whispered "Yes." + +So Tony went to the Tombs and was lodged in a cell next door to Soko the +Monk, who had nearly beaten a Chinaman to death with a pair of brass +knuckles, from whom he learned much that was exciting if not edifying. + +Now, as Delany was wont to say for years thereafter, that damn Mathusek +case just went bad on him. He had believed that in the comparative +secrecy of the inquisitorial chamber he could easily pretend that he had +originally made an honest mistake and was no longer positive of the +defendant's identity, in which case when the grand jury threw out the +case nobody would ever know the reason and no chickens would come home +to roost on him. + +But when the cop visited the office of Deputy Assistant District +Attorney Caput Magnus the next morning, to inform him that this here +window-breaking case was a Messina, he found Mr. Nathan Asche already +solidly there present, engaged in advising Mr. Magnus most emphatically +to the exact contrary. Indeed the attorney was rhetorical in his +insistence that this destruction of the property of law-abiding +taxpayers must stop. + +Mr. Asche was not a party to be trifled with. He was a rectangular +person whom nothing could budge, and his very rectangularity bespoke his +stubborn rectitude. His shoulders were massive and square, his chin and +mouth were square, his burnsides were square cut, and he had a square +head and wore a square-topped derby. He looked like the family portrait +of Uncle Amos Hardscrabble. When he sat down he remained until he had +said his say. It was a misfortunate meeting for Delany, for Asche nailed +him upon the spot and made him repeat to Caput Magnus the story of how +he had seen Tony throw the brick and then, for some fool reason, not +being satisfied to let it go at that, he insisted on calling in a +stenographer and having Delany swear to the yarn in affidavit form! This +entirely spoiled any chance the policeman might otherwise have had of +changing his testimony. He now had no choice but to go on and swear the +case through before the grand jury--which he did. + +Even so, that distinguished body of twenty-three representative citizens +was not disposed to take the matter very seriously. Having heard what +Delany had to say--and he made it good and strong under the +circumstances--several of them remarked disgustedly that they did not +understand why the district attorney saw fit to waste their valuable +time with trivial cases of that sort. Boys would play ball and boys +would throw balls round; if not balls, then stones. They were about to +dismiss by an almost unanimous vote, when the case went bad again. The +foreman, a distinguished person in braided broadcloth, rose and +announced that he was very much interested to learn their views upon +this subject as he was the president of a casualty company, and he +wished them to understand that thousands--if not hundreds of +thousands--of dollars' worth of plate-glass windows were wantonly broken +by young toughs, every year, for which his and other insurance companies +had to recoup the owners. In fact, he alleged heatedly, window breaking +was a sign of peculiar viciousness. Incipient criminals usually started +their infamous careers that way; you could read that in any book on +penology. An example ought to be made. He'd bet this feller who threw +the brick was a gangster. + +So his twenty-two fellow grand jurymen politely permitted him to recall +Officer Delany and ask him: "Say, officer, isn't it a fact--just tell us +frankly now--if this feller Mathusek isn't a gangster?" + +"Sure, he's a gangster. He was blowin' about it to me after I arrested +him," swore Delany without hesitation. + +The foreman swept the circle with a triumphant eye. + +"What'd I tell you?" he demanded. "All in favor of indicting said Tony +Mathusek for malicious destruction of property signify in the usual +manner. Cont'riminded? It's a vote. Ring the bell, Simmons, and bring on +the next case." + +So Tony was indicted by the People of the State of New York for a +felony, and a learned judge of the General Sessions set his bail at +fifteen hundred dollars; and Hogan had his victim where he wanted him +and where he could keep him until he had bled his mother white of all +she had or might ever hope to have in this world. + +Everybody was satisfied--Hogan, Simpkins, Asche, McGurk, even Delany, +because the fleas upon his back were satisfied and he was planning +ultimately to get rid of the whole damn tangle by having the indictment +quietly dismissed when nobody was looking, by his friend O'Brien, to +whom the case had been sent for trial. And everything being as it should +be, and Tony being locked safely up in a cell, Mr. Joey Simpkins set +himself to the task of extorting three hundred and fifty dollars more +from Mrs. Mathusek upon the plea that the great Mr. Hogan could not +possibly conduct the case before a jury for less. + +Now the relations of Mr. Assistant District Attorney O'Brien and the +Hon. Raphael B. Hogan were distinctly friendly. At any rate, whenever +Mr. Hogan asked for an adjournment in Mr. O'Brien's court he usually got +it without conspicuous difficulty, and that is what occurred on the five +several occasions that the case of The People versus Antonio Mathusek +came up on the trial calendar during the month following Tony's +incarceration, on each of which Mr. Hogan with unctuous suavity rose and +humbly requested that the case be put over at his client's earnest +request in order that counsel might have adequate time in which to +subpoena witnesses and prepare for a defense. + +And each day Simpkins, who now assumed a threatening and fearsome +demeanor toward Mrs. Mathusek, visited the heartsick woman in her flat +and told her that Tony could and would rot in the Tombs until such time +as she procured three hundred and fifty dollars. The first week she +assigned her life-insurance money; the second she pawned the furniture; +until at last she owed Hogan only sixty-five dollars. At intervals Hogan +told Tony that he was trying to force the district attorney to try the +case, but that the latter was insisting on delay. + +In point of fact, O'Brien had never looked at the papers, much less made +any effort to prepare the case; if he had he would have found that there +was no case at all. And Delany's mind became at peace because he +perceived that at the proper psychological moment he could go to O'Brien +and whisper: "Say, Mr. O'Brien, that Mathusek case. It's a turn-out! +Better recommend it for dismissal," and O'Brien would do so for the +simple reason that he never did any more work than he was actually +compelled to do. + +But as chance would have it, three times out of the five, Mr. Ephraim +Tutt happened to be in court when Mr. Hogan rose and made his request +for an adjournment; and he remembered it because the offense charged was +such an odd one--breaking a window. + +Delany's simple plan was again defeated by Nemesis, who pursued him in +the shape of the rectangular Mr. Asche, and who shouldered himself into +O'Brien's office during the fifth week of Tony's imprisonment and wanted +to know why in hell he didn't try that Mathusek case and get rid of it. +The assistant district attorney had just been called down by his +official boss and being still sore was glad of a chance to take it out +on someone else. + +"D'you think I've nothin' better to do than try your damned old +window-busting cases?" he sneered. "Who ever had the idea of indicting a +boy for that sort of thing, anyhow?" + +"That is no way to talk," answered Mr. Asche with firmness. "You're paid +to prosecute whatever cases are sent to you. This is one of 'em. There's +been too much delay. Our president will be annoyed." + +"Oh, he will, will he?" retorted O'Brien, nevertheless, coming to the +instant decision that he had best find some other excuse than mere +disinclination. "If he gets too shirty I'll tell him the case came in +here without any preparation and being in the nature of a private +prosecution we've been waiting for you to earn your fee. How'll you like +that, eh?" + +Mr. Asche became discolored. + +"H'm!" he replied softly. "So that is it, is it? You won't have that +excuse very long, even if you could get away with it now. I'll have a +trial brief and affidavits from all the witnesses ready for you in +forty-eight hours." + +"All right, old top!" nodded O'Brien carelessly. "We always strive to +please!" + +So Mr. Asche got busy, while the very same day Mr. Hogan asked for and +obtained another adjournment. + +Some people resemble animals; others have a geometrical aspect. In each +class the similarity tends to indicate character. The fox-faced man is +apt to be sly, the triangular man is likely to be a lump. So Mr. Asche, +being rectilinear, was on the square; just as Mr. Hogan, being soft and +round, was slippery and hard to hold. Three days passed, during which +Mrs. Mathusek grew haggard and desperate. She was saving at the rate of +two dollars a day, and at that rate she would be able to buy Tony a +trial in five weeks more. She had exhausted her possibilities as a +borrower. The indictment slept in O'Brien's tin file. Nobody but Tony, +his mother and Hogan remembered that there was any such case, except Mr. +Asche, who one afternoon appeared unexpectedly in the offices of Tutt & +Tutt, the senior partner of which celebrated law firm happened to be +advisory counsel to the Tornado Casualty Company. + +"I just want you to look at these papers, Mr. Tutt," Mr. Asche said, and +his jaw looked squarer than ever. + +Mr. Tutt was reclining as usual in his swivel chair, his feet crossed +upon the top of his ancient mahogany desk. + +"Take a stog!" he remarked without getting up, and indicating with the +toe of one Congress-booted foot the box which lay open adjacent to the +Code of Criminal Procedure. "What's your misery?" + +"Hell's at work!" returned Mr. Asche, solemnly handing over a sheaf of +affidavits. "I never smoke." + +Mr. Tutt somewhat reluctantly altered his position from the horizontal +to the vertical and reached for a fresh stogy. Then his eye caught the +name of Raphael B. Hogan. + +"What the devil is this?" he cried. + +"It's the devil himself!" answered Mr. Asche with sudden vehemence. + +"Tutt, Tutt! Come in here!" shouted the head of the firm. "Mine enemy +hath been delivered into mine hands!" + +"Hey? What?" inquired Tutt, popping across the threshold. "Who--I +mean--" + +"Raphael B. Hogan!" + +"The devil!" ejaculated Tutt. + +"You've said it!" declared Mr. Asche devoutly. + + * * * * * + +That evening under cover of darkness Mr. Ephraim Tutt descended from a +dilapidated taxi at the corner adjacent to Froelich's butcher shop, and +several hours later was whisked uptown again to the brownstone dwelling +occupied by the Hon. Simeon Watkins, the venerable white-haired judge +then presiding in Part I of the General Sessions, where he remained +until what may be described either as a very late or a very early hour, +and where during the final period of his intercourse he and that +distinguished member of the judiciary emptied an ancient bottle +containing a sparkling rose-colored liquid of great artistic beauty. + +Then Mr. Tutt returned to his own library at the house on Twenty-third +Street and paced up and down before the antiquated open grate, inhaling +quantities of what Mr. Bonnie Doon irreverently called "hay smoke," and +pondering deeply upon the evils that men do to one another, until the +dawn peered through the windows and he bethought him of the all-night +lunch stand round the corner on Tenth Avenue, and there sought +refreshment. + +"Salvatore," he remarked to the smiling son of the olive groves who +tended that bar of innocence, "the worst crook in the world is the man +who does evil for mere money." + +"_Si, Signor Tutti_," answered Salvatore with Latin perspicacity. "You +gotta one, eh? You giva him hell?" + +"_Si! Si!_" replied Mr. Tutt cheerily. "Even so! And of a truth, +moreover! Give me another hot dog and a cup of bilge water!" + + * * * * * + +"People versus Mathusek?" inquired Judge Watkins some hours later on the +call of the calendar, looking quite vaguely as if he had never heard of +the case before, round Part I, which was as usual crowded, hot, stuffy +and smelling of unwashed linen and prisoners' lunch. "People versus +Mathusek? What do you want done with this case, Mr. O'Brien?" + +"Ready!" chanted the red-headed O'Brien, and, just as he had expected, +the Hon. Raphael Hogan limbered up in his slow, genial way and said: "If +Your Honor please, the defendant would like a few days longer to get his +witnesses. Will Your Honor kindly adjourn the case for one week?" + +He did not notice that the stenographer was taking down everything that +he said. + +"I observe," remarked Judge Watkins with apparent amiability, "that you +have had five adjournments already. If The People's witnesses are here I +am inclined to direct you to proceed. The defendant has been under +indictment for six weeks. That ought to be long enough to prepare your +defense." + +"But, Your Honor," returned Hogan with pathos, "the witnesses are very +hard to find. They are working people. I have spent whole evenings +chasing after them. Moreover, the defendant is perfectly satisfied to +have the case go over. He is anxious for an adjournment!" + +"When did you last see him?" + +"Yesterday afternoon." + +The judge unfolded the papers and appeared to be reading them for the +first time. He wasn't such a bad old actor himself, for he had already +learned from Mr. Tutt that Hogan had not been near Tony for three weeks. + +"Um--um! Did you represent the defendant in the police court?" + +"Yes, Your Honor." + +"Why did you waive examination?" + +Hogan suddenly felt a lump swelling in his pharynx. What in hell was it +all about? + +"I--er--there was no use in fighting the case there. I hoped the grand +jury would throw it out," he stammered. + +"Did anybody ask you to waive examination?" + +The swelling in Hogan's fat neck grew larger. Suppose McGurk or Delany +were trying to put something over on him! + +"No! Certainly not!" he replied unconvincingly. He didn't want to make +the wrong answer if he could help it. + +"You have an--associate, have you not? A Mr. Simpkins?" + +"Yes, Your Honor." Hogan was pale now and little beads were gathering +over his eyebrows. + +"Where is he?" + +"Downstairs in the magistrate's court." + +"Officer," ordered the judge, "send for Mr. Simpkins. We will suspend +until he can get here." + +Then His Honor occupied himself with some papers, leaving Hogan standing +alone at the bar trying to work out what it all meant. He began to wish +he had never touched the damn case. Everybody in the courtroom seemed to +be looking at him and whispering. He was most uncomfortable. Suppose +that crooked cop had welshed on him! At the same instant in the back of +the room a similar thought flashed through the mind of Delany. Suppose +Hogan should welsh on him! Coincidentally both scoundrels turned sick at +heart. Then came to each the simultaneous realization that neither could +gain anything by giving the other away, and that the only thing possible +for either was to stand pat. No, they must hang together or assuredly +hang separately. Then the door opened and a tall officer entered, +followed by a very nervous Mr. Joey Simpkins. + +"Come up here!" directed the judge. "You are Mr. Hogan's assistant, are +you not?" + +"Yes, sir!" quavered the anxious Simpkins. + +"How much money have you taken from Mrs. Mathusek?" + +"Four hundred and thirty-five dollars." + +"For what?" sharply. + +"For protecting her son." + +"Where? How?" + +"Why--from his arrest to the present time--and for his defense here in +General Sessions." + +"Have either you or Mr. Hogan done anything as yet--except to waive +examination in the police court?" + +Mr. Simpkins turned hastily to Mr. Hogan, who realized that things were +going badly. + +"Your Honor," he interposed thickly, "this money was an agreed fee for +my services as counsel. This examination seems to me somewhat uncalled +for and unfair." + +"Call Tony Mathusek to the bar!" suddenly ordered the judge. + +It was a dangerous play, but Hogan decided to bluff it through. + +"In view of the fact that I have not received my fee I shall refuse to +appear for the defendant!" he announced brazenly. + +"Indeed!" retorted the judge with sarcasm. "Then I will assign Mr. +Ephraim Tutt to the defense. You two gentlemen will please sit down--but +not leave the courtroom. We may need you." + +At that moment, just as the defendant was led to the bar, Mr. Tutt +emerged from behind the jury box and took his stand at Tony's side. +Nothing much to look at before, the boy was less so now, with the prison +pallor on his sunken little face. There was something about the thin +neck, the half-open mouth and the gaunt, blinking, hollow eyes that +suggested those of a helpless fledgling. + +"Impanel a jury!" continued the judge, and Mr. Tutt conducted Tony +inside the rail and sat down beside him at the table reserved for the +defendant. + +"It's all right, Tony!" he whispered. "The frame-up isn't on you this +time, my lad." + +Cowering in the back of the room Delany tried to hide himself among the +spectators. Some devilish thing had gone wrong. He hadn't heard all that +had passed between the judge and Hogan, but he had caught enough to +perceive that the whole case had gone blooey. + +Judge Watkins was wise! He was going after Hogan just as old Tutt would +go after him, Delany. There was a singing in his head and the blood +smarted in his eyes. He'd better beat it! Half bent over he started +sneaking for the door. + +"Who is that man trying to go out?" shouted the judge in terrifying +tones that shook Delany to the ankles. Hastily he tried to sit down. + +"Bring that man to the bar!" + +Half blind with fear Delany attempted to make a show of bravado and +swagger to the rail. + +"What is your name?" + +"Delany. Officer attached to the Second Precinct." + +"What were you leaving the room for?" + +Delany could not answer. His wits were befogged, his throat numb. He +simply stared vacuously at Judge Watkins, his lips vibrating with fear. + +"Sit down. No; take the stand!" cried Judge Watkins. "I'll try this case +myself." + +As if his foot were already attached to a ball and chain Delany dragged +himself up--up--hundreds of feet up, it seemed--to the witness chair. As +if from a mountain side he saw dim forms moving into the jury box, heard +the judge and Mr. Tutt exchanging meaningless remarks. The faces before +him grinned and gibbered at him like a horde of monkeys. They had got +him at last--all for a few pieces of rotten beef! That lean, hungry +wolfhound would tear his tongue out by the roots if he even opened his +mouth; claw wide open his vitals. And old Tutt was fixing him with the +eye of a basilisk and slowly turning him to stone. Somebody sure had +welshed! He had once been in a side show at Coney Island where the room +simulated the motion of an ocean steamer. The courtroom began to do the +same--slanting this way and that and spinning obliquely round and round. +Through the swirl of its gyrations he could see old Tutt's vulture eyes, +growing bigger, fiercer, more sinister every instant. It was all up with +him! It was an execution, and the crowd down below were thirsting for +his blood, waiting to tear him to bits! + +"You saw this boy throw a brick through Mr. Froelich's window, didn't +you?" coaxed Judge Watkins insinuatingly. Delany sensed that the old +white fox was trying to trick him--get him for perjury. No! He wouldn't +perjure himself again! No! But what could he do? His head swung +stupidly, swaying like a dazed bull's. The sweat poured from every pore +in his vast bulk. A hoarse noise--like a death rattle--came from his +throat. The room dissolved in waves of white and black. Then in a +vertigo he toppled forward and pitched headlong to the floor. + + * * * * * + +Deacon Terry, star reporter for the _Tribune_, who happened to be there, +told his city editor at noon that he had never passed such a pleasant +morning. What he saw and heard really constituted, he alleged, a great +big full front-page story "in a box"--though it got only four sticks on +the eleventh page--being crowded out by the armistice. Why, he said, it +was the damnedest thing ever! There had been no evidence against the +defendant at all! And after the cop had collapsed Judge Watkins had +refused to dismiss the case and directed Mr. Tutt to go on in his own +way. + +The proceeding had resolved itself into a criminal trial of Hogan and +Simpkins. Tony's good character had been established in three minutes, +and then half a dozen reputable witnesses had testified that the brick +had been thrown by an entirely different boy. Finally, Sussman and his +assistant both swore positively that Delany had been in the back of the +tobacco shop with his back to the door, holding them up for cigars, when +the crash came. + +Terry wanted two columns; he almost cried when they cut his great big +full-page story to: + + SHYSTERS ACCUSED OF EXTORTION + + A dramatic scene was enacted at the conclusion of a minor case in + Part I of the General Sessions yesterday, when upon the motion of + Ephraim Tutt, of the firm of Tutt & Tutt, Judge Simeon Watkins, + sitting as a committing magistrate, held for the action of the grand + jury Raphael B. Hogan and Joseph P. Simpkins, his assistant, for the + crime of extortion, and directed that their case be referred to the + Grievance Committee of the County Lawyers' Association for the + necessary action for their disbarment. + + Earlier in the trial a police officer named Delany, the supposed + chief witness for the prosecution, fainted and fell from the witness + chair. Upon his recovery he was then and there committed for + perjury, in default of ten thousand dollars bail. It is understood + that he has signified his willingness to turn state's evidence, but + that his offer has not been accepted. So far as can be ascertained + this is the first time either Hogan or Simpkins has been accused of + a criminal offense. District Attorney Peckham stated that in + addition to separate indictments for extortion and perjury he would + ask for another, charging all three defendants with the crime of + conspiracy to obstruct the due administration of the law. + + At the conclusion of the proceedings Judge Watkins permitted a + voluntary collection to be taken up by Mr. Tutt on behalf of the + accused among the jury, the court attendants and the spectators, + which amounted to eleven hundred and eighty-nine dollars. In this + connection the judge expressed the opinion that it was unfortunate + that persons falsely accused of crime and unjustly imprisoned should + have no financial redress other than by a special act of the + legislature. The defendant in the case at bar had been locked up for + six weeks. Among the contributions was found a new + one-thousand-dollar bill. + +"Talk about crime!" quoth the Deacon savagely to Charlie Still, of the +_Sun_. "That feckless fool at the city desk committed assault, mayhem +and murder on that story of mine!" Then he added pensively: "If I +thought old man Tutt would slip me a thousand to soothe my injured +feelings I'd go down and retain his firm myself!" + + + + +The Kid and the Camel + + + Breathes there the man with soul so dead + Who never to himself hath said, + This is my own, my native land! + --LAY OF THE LAST MINSTREL. + +The shortest street in the world, Edgar Street, connects New York's +financial center with the Levant. It is less than fifty feet through +this tiny thoroughfare from the back doors of the great Broadway office +buildings to Greenwich Street, where the letters on the window signs +resemble contorted angleworms and where one is as likely to stumble into +a man from Bagdad as from Boston. One can stand in the middle of it and +with his westerly ear catch the argot of Gotham and with his easterly +all the dialects of Damascus. And if through some unexpected convulsion +of Nature 51 Broadway should topple over, Mr. Zimmerman, the +stockbroker, whose office is on the sixth story, might easily fall clear +of the Greek restaurant in the corner of Greenwich Street, roll +twenty-five yards more down Morris Street, and find himself on +Washington Street reading a copy of Al-Hoda and making his luncheon off +_baha gannouge_, _majaddarah_ and _milookeiah_, which, after all, are +only eggplant salad, lentils and rice, and the popular favorite known as +Egyptian Combination. + +To most New Yorkers this is a section of the city totally unknown and +unsuspected, yet existing as in a fourth dimension within a stone's +throw--and nearer--of our busiest metropolitan artery--and there within +one hundred yards of the aforesaid Mr. Zimmerman's office above the +electric cars of Broadway, and within earshot of the hoots of many a +multimillionaire's motor, on a certain evening something of an Oriental +character was doing in the hallway of a house on Washington Street that +subsequently played a part in the professional lives of Tutt & Tutt. + +Out of the literally Egyptian darkness of the tenement owned by +Abadallah Shanin Khaldi issued curious smothered sounds, together with +an unmistakable, pungent, circuslike odor. + +"Whack!" + +There came an indignant grunt, followed by a flabby groan and a +straining and squeaking of the jerry-built staircase as Kasheed Hassoun +vigorously applied a lath to the horny backsides of Eset el Gazzar. + +"Ascend, dog of a dog!" panted Kasheed. "Move thy accursed feet, O +wizened hump! Daughter of Satan, give me room! Thou art squeezing out my +life! Only go on, child of my heart! It is but a step upward, O Queen of +the Nile. Hold the rope tight, Kalil!" + +The camel obediently surged forward, breaking off a section of banister. +Through the racket from the hallway above faintly came the voice of +Kalil Majdalain. + +"Her head is free of the ceiling. Quick, Kasheed! Turn her, thou, upon +the landing!" + +"Whack!" responded the lath in the hand of Kasheed Hassoun. + +Step by step the gentle shaggy brute felt her way with feet, knees and +nozzle up the narrow staircase. What was this but another of those +bizarre experiences which any camel-of-the-world must expect in a land +where the water wells squirted through a tube and men rode in chariots +driven by fire? + +"Whack!" + +"Go on, darling of my soul!" whispered Kasheed. "Curses upon thy father +and upon the mother that bore thee! Wilt thou not move?" + +"Whack!" + +"Ouch! She devil! Thou hast trod upon my foot!" + +Outside, that the Western world might not suspect what was going on, +Shaheen Mahfous and Shanin Saba unloaded with as much noise as possible +a dray of paper for Meraat-ul-Gharb, the Daily Mirror. By and by a +window on the fourth floor opened and the head of Kalil Majdalain +appeared. + +"_Mahabitcum!"_ he grinned; which, being interpreted, means "Good +fellowship to all!" + +Then presently he and Kasheed joined the others upon the sidewalk, and, +the rolls of paper having been delivered inside the pressroom, the four +Syrians climbed upon the truck and drove to the restaurant of Ghabryel & +Assad two blocks farther north, where they had a bit of _awamat_, coffee +and cigarettes, and then played a game of cards, while in the attic of +the tenement house Eset el Gazzar munched a mouthful of hay and tapped +her interior reservoir for a drink of clear water, as she sighed through +her valvelike nostrils and pouted with her cushioned lips, pondering +upon the vagaries of quadrupedal existence. + +Willie Toothaker, the office boy of Tutt & Tutt, had perfected a +catapult along the lines of those used in the Siege of Carthage--form +derived from the appendix of Allen and Greenough's Latin Grammar--which +boded ill for the truck drivers of lower Gotham. + +Since his translation from Pottsville Center, Willie's inventive genius +had worked something of a transformation in the Tutt & Tutt offices, for +he had devised several labor-saving expedients, such as a complicated +series of pulleys for opening windows and automatically closing doors +without getting up; which, since they actually worked, Mr. Tutt, being a +pragmatist, silently, patiently and good-naturedly endured. To-day both +partners were away in court and Willie had the office to himself with +the exception of old Scraggs. + +"Bet it'll shoot a block!" asserted Willie, replacing his gum, which he +had removed temporarily to avert the danger of swallowing it in his +excitement. "Caesar used one just like this--only bigger, of course. See +that scuttle over on Washington Street? Bet I can hit it!" + +"Bet you can't come within two hundred feet of it!" retorted the +watery-eyed scrivener. "It's a lot further'n you think." + +"'Tain't neither!" declared Willie. "I know how far it is! What can we +shoot?" + +Scraggs' eye wandered aimlessly round the room. + +"Oh, I don't know." + +"Got to be something with heft to it," said Willie. "'S got to overcome +the resistance of the atmosphere." + +"How about that paperweight?" + +"'S too heavy." + +"Well--" + +"I know!" exclaimed William suddenly. "Gimme that little bottle of red +ink. 'S just about right. And when it strikes it'll make a mark so's we +can tell where we hit--like a regular target." + +Scraggs hesitated. + +"Ink costs money," he protested. + +"But it's just the thing!" insisted Willie. "Besides, you can charge me +for it in the cash account. Give it here!" + +Conscience being thus satisfied the two eagerly placed the ink bottle in +the proper receptacle, which Willie had fashioned out of a stogy box, +twisted back the bow and aimed the apparatus at the slanting scuttle, +which projected from a sort of penthouse upon the roof of the tenement +house across the street. + +"Now!" he exclaimed ecstatically. "Stand from under, Scraggs!" + +He pressed a lever. There was a whang, a whistle--and the ink bottle +hurtled in a beautiful parabola over Greenwich Street. + +"Gee! look at her go!" cried Willie in triumph. "Straight's a string." + +At exactly that instant--and just as the bottle was about to descend +upon the penthouse--the scuttle opened and there was thrust forth a huge +yellow face with enormous sooty lips wreathed in an unmistakable smile. +On the long undulating neck the head resembled one of the grotesque +manikins carried in circus parades. Eset el Gazzar in a search for air +had discovered that the attic scuttle was slightly ajar. + +"Gosh! A camel!" gasped Willie. + +"Lord of love!" ejaculated Scraggs. "It sure is a camel!" + +There was a faint crash and a tinkle of glass as the bottle of red ink +struck the penthouse roof just over the beast's head and deluged it with +its vermilion contents. Eset reared, shook her neck, gave a defiant +grunt and swiftly withdrew her head into the attic. + +Sophie Hassoun, the wife of Kasheed, seeing the violent change in Eset's +complexion, wrung her hands. + +"What hast thou done, O daughter of devils? Thou art bleeding! Thou hast +cut thyself! Alack, mayhap thou wilt die, and then we shall be ruined! +Improvident! Careless one! Cursed be thy folly! Hast thou no regard? And +I dare not send for Doctor Koury, the veterinary, for then thy presence +would be discovered and the gendarmes would come and take thee away. +Would that we had left thee at Coney Island! O, great-granddaughter of +Al Adha--sacred camel of the Prophet--why hast thou done this? Why hast +thou brought misery upon us? _Awar! Awar!_" + +She cast herself upon the improvised divan in the corner, while Eset, +blinking, licked her big yellow hind hump, and tumbled forward upon her +knees preparatory to sitting down herself. + +"A camel!" repeated Willie, round-eyed. He counted the roofs dividing +the penthouse from where Morris Street bisected the block. "Whoop!" he +cried and dashed out of the office. + +In less than four minutes Patrolman Dennis Patrick Murphy, who was +standing on post on Washington Street in front of Nasheen Zereik's +Embroidery Bazaar talking to Sardi Babu, saw a red-headed, pug-nosed +urchin come flying round the corner. + +"One--two--three--four--five. That's the house!" cried Willie Toothaker. +"That's it!" + +"What yer talkin' 'bout?" drawled Murphy. + +"There's a camel in there!" shouted Willie, dancing up and down. + +"Camel--yer aunt!" sneered the cop. "They couldn't get no camel in +there!" + +"There is! I seen it stick its head out of the roof!" + +Sardi Babu, the oily-faced little dealer in pillow shams, smiled slyly. +He had thick black ringlets, parted exactly down the middle of his +scalp, hanging to his shoulders, and a luxuriant black curly beard +reaching to his middle; in addition to which he wore a blue blouse and +carpet slippers. He was a Maronite from Lebanon, and he and his had a +feud with Hassoun, Majdalain, and all others who belonged to the sect +headed by the Patriarch of Antioch. + +"_Belki!"_ he remarked significantly. "Perhaps his words are true! I +have heard it whispered already by Lillie Nadowar, now the wife of +Butros the confectioner. Moreover, I myself have seen hay on the +stairs." + +"Huh?" exclaimed Murphy. "We'll soon find out. Come along you, Babu! +Show me where you was seein' the hay." + +By this time those who had been lounging upon the adjacent doorstep had +come running to see what was the matter, and a crowd had gathered. + +"It is false--what he says!" declared Gadas Maloof the shoemaker. "I +have sat opposite the house day and night for ten--fifteen years--and no +camel has gone in. Camel! How could a camel be got up such narrow +stairs?" + +"But thou art a friend of Hassoun's!" retorted Fajala Mokarzel the +grocer. "And," he added in a lower tone, "of Sophie Tadros, his wife." + +There was a subdued snicker from the crowd, and Murphy inferred that +they were laughing at him. + +"But this man," he shouted wrathfully, pointing at Sardi Babu, "says you +all know there's a camel up there. An' this kid's seen it! Come along +now, both of you!" + +There was an angry murmur from the crowd. Sardi Babu turned white. + +"I said nothing!" he declared, trembling. "I made no complaint. The +gendarme will corroborate me. What care I where Kasheed Hassoun stables +his camel?" + +Maloof shouldered his way up to him, and grasping the Maronite by the +beard muttered in Arabic: "Thou dog! Go confess thy sins! For by the +Holy Cross thou assuredly hast not long to live!" + +Murphy seized Babu by the arm. + +"Come on!" he ordered threateningly. "Make good now!" And he led him up +the steps, the throng pressing close upon his heels. + + * * * * * + +"What's all this?" inquired Magistrate Burke bewilderedly an hour later +as Officer Murphy entered the police court leading a tall Syrian in a +heavy overcoat and green Fedora hat, and followed by several hundred +black-haired, olive-skinned Levantines. "Don't let all those Dagos in +here! Keep 'em out! This ain't a moving-picture palace!" + +"Them ain't Dagos, judge," whispered Roony the clerk. "Them's Turks." + +"They ain't neither Turks!" contradicted the stenographer, whose +grammar was almost sublimated by comparison with Roony's. "They're +Armenians--you can tell by their complexions." + +"Well, I won't have 'em in here, whatever they are!" announced Burke. "I +don't like 'em. What have you got, Murphy?" + +"Shoo! Get out of here!" ordered the officer on duty. + +The crowd, however, not understanding, only grinned. + +"_Avanti! Alley! Mouch_! Beat it!" continued the officer, waving his +arms and hustling those nearest toward the door. + +The throng obediently fell back. They were a gentle, simple-minded lot, +used in the old country to oppression, blackmail and tyranny, and +burning with a religious fervor unknown to the pale heterodoxy of the +Occident. + +"This here," began Murphy, "is a complaint by Sardi Babu"--he swung the +cowering little man with a twist before the bench--"against one Kasheed +Hassoun for violating the health ordinances." + +"No, no! I do not complain! I am not one who complains. It is nothing +whatever to me if Kasheed Hassoun keeps a camel! I care not," cried Babu +in Arabic. + +"What's he talkin' about?" interrupted Burke. "I don't understand that +sort of gibberish." + +"He makes the complaint that this here Hassoun"--he indicated the tall +man in the overcoat--"is violating Section 1093d of the regulations by +keeping a camel in his attic." + +"Camel!" ejaculated the magistrate. "In his attic!" + +Murphy nodded. + +"It's there all right, judge!" he remarked. "I've seen it." + +"Is that straight?" demanded His Honor. "How'd he get it up there? I +didn't suppose--" + +Suddenly Sardi Babu threw himself fawning upon Hassoun. + +"Oh, Kasheed Hassoun, I swear to thee that I made no complaint. It is a +falsification of the gendarme! And there was a boy--a red and yellow +boy--who said he had seen thy camel's head above the roofs! I am thy +friend!" + +He twisted his writhing snakelike fingers together. Hassoun regarded him +coldly. + +"Thou knowest the fate of informers and provocateurs--of spies--thou +infamous Turk!" he answered through his teeth. + +"A Turk! A Turk!" shrieked Sardi Babu frantically, beating the breast of +his blue blouse. "Thou callest me a Turk! Me, the godson of Sarkis Babu +and of Elias Stephan--whose fathers and grandfathers were Christians +when thy family were worshipers of Mohammed. Blasphemy! Me, the godson +of a bishop!" + +"I also am godson of a bishop!" sneered Kasheed. "A properly anointed +bishop! Without Tartar blood." + +Sardi Babu grew purple. + +"Ptha! I would spit upon the beard of such a bishop!" he shrieked, +beside himself. + +Hassoun slightly raised his eyebrows. + +"Spit, then, infamous one--while thou art able!" + +"Here, here!" growled Burke in disgust. "Keep 'em still, can't you? +Now, what's all this about a camel?" + + * * * * * + +"That's the very scuttle, sir," asseverated Scraggs to the firm, as Tutt +& Tutt, including Miss Wiggin, gazed down curiously out of their office +windows at the penthouse upon the Washington Street roof which had been +Willie's target of the day before. "I don't say," he continued by way of +explanation, "that the camel stuck his head out because Willie hit the +roof with the bottle--it was probably just a circumstance--but it looked +that way. 'Bing!' went the ink bottle on the scuttle; and +then--pop!--out came the camel like a jack-in-the-box." + +"What became of the camel?" inquired Miss Wiggin, cherishing a faint +hope that--pop!--it might suddenly appear again in the same way. + +"The police took it away last night--lowered it out of the window with a +block and tackle," answered the scrivener. "A sort of breeches buoy." + +"I've heard of camel's-hair shawls but not of camel's-hair breeches!" +murmured Tutt. "I suppose if a camel wore pants--well, my imagination +refuses to contemplate the spectacle! Where's Willie?" + +"He hasn't been in at all this morning!" said Miss Wiggin. "I'll +warrant--" + +"What?" demanded Mr. Tutt suspiciously. + +"--he's somewhere with that camel," she concluded. + + * * * * * + +Now, Miss Minerva, as her name connoted, was a wise woman; and she had +reached an unerring conclusion by two different and devious routes, to +wit, intuition and logic, the same being the high road and low road of +reason--high or low in either case as you may prefer. Thus logic: +Camel--small boy. Intuition: Small boy--camel. But there was here an +additional element--a direct personal relationship between this +particular small boy and this particular camel, rising out of the +incident of the ink bottle. She realized that that camel must have +acquired for William a peculiar quality--almost that of a possession--in +view of the fact that he had put his mark upon it. She knew that Willie +could no more stay away from the environs of that camel than said camel +could remain in that attic. Indeed we might go on at some length +expounding further this profound law of human nature that where there +are camels there will be small boys; that, as it were, under such +circumstances Nature abhors an infantile vacuum. + +"If I know him, he is!" agreed Mr. Tutt, referring to William's probable +proximity to Eset el Gazzar. + +"Speaking of camels," said Tutt as he lit a cigarette, "makes me think +of brass beds." + +"Yes," nodded his partner. "Of course it would, naturally. What on earth +do you mean?" + +"I mean this," began Tutt, clearing his throat as if he were addressing +twelve good and true men--"a camel is obviously an unusual--not to say +peculiar--animal to be roosting over there in that attic. It is an +exotic--if I may use that term. It is as exotic as a brass bed from +Connecticut would be, or is, in Damascus or Lebanon. Now, therefore, a +camel will as assuredly give cause for trouble in New York as a brass +bed in Bagdad!" + +"The right thing often makes trouble if put in the wrong place," +pondered Mr. Tutt. + +"Or the wrong thing in the right place!" assented Tutt. "Now all these +unassimilated foreigners--" + +"What have they got to do with brass beds in Lebanon?" challenged Miss +Wiggin. + +"Why," continued Tutt, "I am credibly informed that the American brass +bed--particularly the double bed--owing to its importation into Asia +Minor was the direct cause of the Armenian massacres." + +"Tosh!" said Miss Wiggin. + +"For a fact!" asserted Tutt. "It's this way--an ambassador told me so +himself--the Turks, you know, are nuts on beds--and they think a great +big brass family bed such as--you know--they're in all the +department-store windows. Well, every Turk in every village throughout +Asia Minor saves up his money to buy a brass bed--like a nigger buys a +cathedral clock. Sign of superiority. You get me? And it becomes his +most cherished household possession. If he meets a friend on the street +he says to him naturally and easily, without too much conscious egotism, +just as an American might say, 'By the way, have you seen my new +limousine?'--he says to the other Turk, 'Oh, I say, old chap, do you +happen to have noticed my new brass bed from Connecticut? They just put +it off the steamer last week at Aleppo. Fatima's taking a nap in it now, +but when she wakes up--'" + +"What nonsense!" sniffed Miss Wiggin. + +"It's not nonsense!" protested the junior partner. "Now listen to what +happens. Some Armenian--the Armenians are the pawnbrokers of Asia +Minor--moves into that village and in three months he has a mortgage on +everything in it, including that brass bed. Then the Turkish Government, +which regards him as an undesirable citizen, tells him to move along; +and Mister Armenian piles all the stuff the inhabitants have mortgaged +to him into an oxcart and starts on his way, escorted by the Sultan's +troops. On top of the load is Yusuf Bulbul Ameer's brass bed. Yusuf +looks out of his doorway and sees the bed moving off and rushes after it +to protect his property. + +"'Look here!' he shouts. 'Where are you going with my brass bed?' + +"'It isn't yours!' retorts Mister Pawnbroker. 'It's mine. I loaned you +eighty-seven piasters on it!' + +"'But I've got an equity in it! You can't take it away!' + +"'Of course I can!' replies the Armenian. 'Where I goeth it will go. The +Turkish Government is responsible.' + +"'Not much,' says Yusuf, grabbing hold of it, trying to pull it off the +cart. + +"'Hands off there!' yells the Armenian. + +"Then there is a mix-up and everybody piles in--and there is a +massacre!" + +"That's a grand yarn!" remarked Mr. Tutt. "Still, it may be--" + +"Bunk!" declared Miss Wiggin. "And what has that got to do with camels?" + +"My point is," affirmed Tutt, waving his index finger--"my point is that +just as a Yankee brass bed in Turkey will make certain trouble, so a +Turkish camel in New York is bound to do the same thing." + +A door slammed behind them and Willie's voice interrupted the +conversation. + +"Mr. Tutt! Mr. Tutt!" he cried hysterically. "There's been a murder +down there--and we--I'm--partly responsible. I spent the night with the +camel and he's--she's--all right--in Regan's Boarding Stable. But +Kasheed is in the Tombs, and I told them you'd defend him. You will, +won't you?" + +Mr. Tutt looked at the excited boy. + +"Who killed whom?" he asked correctly. "And where does the camel come +in?" + +"Somebody killed Sardi Babu," explained Willie. "I don't know exactly +who did it--but they've arrested Kasheed Hassoun, the owner of Eset el +Gazzar." + +"Who?" roared Tutt. + +"The camel. You see, nobody knew she was in the attic until I saw her +stick her head out of the hole in the roof. Then I told Murphy and he +went up and found her there. But Kasheed thought Sardi had told on him, +you see, and nobody would believe him when he said he hadn't. The judge +fined Kasheed twenty-five dollars, and he--Kasheed--accused Sardi of +being a Turk and they had a big row right there in court. Nothing +happened until the cops had got Eset out of the window and she was over +at Regan's. I stayed there. Her head is bright red from the ink, you +know. Then somebody went over to the restaurant where Sardi was and +killed him. So you see, in a way, I'm to blame, and I didn't think you'd +mind defending Kasheed, because he's a corker and if they electrocute +him Eset will starve to death." + +"I see," said. Mr. Tutt thoughtfully. "You think that by rights if +anybody was going to get killed it ought to have been you?" + +Willie nodded. + +"Yes, sir," he assented. + +And that is how a camel was the moving cause of the celebrated firm of +Tutt & Tutt appearing as counsel in the case of The People against +Kasheed Hassoun, charged with the crime of murder in the first degree +for having taken the life of Sardi Babu with deliberation and +premeditation and malice aforethought and against the peace of the +People of the State of New York. + + * * * * * + +"And then there's this here Syrian murder case," groaned the chief clerk +of the district attorney's office plaintively to his chief. "I don't +know what to do with it. The defendant's been six months in the Tombs, +with all the Syrian newspapers hollering like mad for a trial. He killed +him all right, but you know what these foreign-language murder cases +are, boss! They're lemons, every one of 'em!" + +"What's the matter with it?" inquired the D.A. "It's a regular +knock-down-and-drag-out case, isn't it? Killed him right in a +restaurant, didn't he?" + +"Sure! That part of it's all right," assented the chief clerk. "He +killed him--yes! But how are you going to get an American jury to choose +between witnesses who are quite capable of swearing that the corpse +killed the defendant. How in hell can you tell what they're talking +about, anyway?" + +"You can't!" said the D.A. "Send the papers in to Pepperill and tell him +on the side it'll make him famous. He'll believe you." + +"But it'll take ten weeks to try it!" wailed the chief clerk. + +"Well, send it down to old Wetherell, in Part Thirteen. He's got the +sleeping sickness and it will be sort of soothing for him to listen to." + +"Might wake him up?" suggested the other. + +"You couldn't!" retorted the D.A. "What's the case about, anyhow?" + +"It's about a camel," explained the subordinate hesitatingly. + +The D.A. grinned. Said he: "It is easier for a camel to go through the +eye of a needle than for a just prosecutor to convict a Syrian of +murder. Well, old top, send for a couple of dozen Korans and hire rooms +for the jury over Kaydoub, Salone & Dabut's and turn 'em loose on +_kibbah arnabeiah, kashtah_ and _halawee_." + +Mr. William Montague Pepperill was a very intense young person, +twenty-six years old, out of Boston by Harvard College. He had been born +beneath the golden dome of the State House on Beacon Street, and from +the windows of the Pepperill mansion his infant eyes had gazed smugly +down upon the Mall and Frog Pond of the historic Common. There had been +an aloof serenity about his life within the bulging front of the +paternal residence with its ancient glass window panes--faintly tinged +with blue, just as the blood in the Pepperill veins was also faintly +tinged with the same color--his unimpeachable social position at Hoppy's +and later on at Harvard--which he pronounced Haavaad--and the profound +respect in which he was held at the law school in Cambridge, that gave +Mr. W. Montague Pepperill a certain confidence in the impeccability of +himself, his family, his relatives, his friends, his college, his +habiliments and haberdashery, his deportment, and his opinions, +political, religious and otherwise. + +For W.M.P. the only real Americans lived on Beacon Hill, though a few +perhaps might be found accidentally across Charles Street upon the made +land of the Back Bay. A real American must necessarily also be a +graduate of Harvard, a Unitarian, an allopath, belong to the Somerset +Club and date back ancestrally at least to King Philip's War. W. +Montague had, however, decided early in life that Boston was too small +for him and that he owed a duty to the rest of the country. + +So he had condescended to New York, where through his real American +connections in law, finance and business he had landed a job in a +political office where the aristocrats were all either Irish, Jews or +Italians, who regarded him as an outlandish animal. It had been a +strange experience for him. So had the discovery that graft, blackmail, +corruption, vice and crime were not mere literary conventions, existing +only for the theoretical purposes of novelists and playwrights, but were +actualities frequently dealt with in metropolitan society. He had +secured his appointment from a reform administration and he had been +retained as a holdover by Peckham, the new district attorney, by reason +of the fact that his uncle by marriage was a Wall Street banker who +contributed liberally without prejudice to both political parties. This, +however, W.M.P. did not know, and assumed that he was allowed to keep +his four-thousand-dollar salary because the county could not get on +without him. He was slender, wore a mouse-colored waistcoat, fawn tie +and spats, and plastered his hair neatly down on each side of a glossy +cranium that was an almost perfect sphere. + +"Ah! Mr. William Montague Pepperill, I believe?" inquired Mr. Tutt with +profound politeness from the doorway of W.M.P.'s cubicle, which looked +into the gloomy light shaft of the Criminal Courts Building. + +Mr. Pepperill finished what he was writing and then looked up. + +"Yes," he replied. "What can I do for you?" + +He did not ask Mr. Tutt his name or invite him to sit down. + +The old lawyer smiled. He liked young men, even conceited young men; +they were so enthusiastic, so confident, so uncompromising. Besides, +W.M.P. was at heart, as Mr. Tutt perceived, a high-class sort of chap. +So he smiled. + +"My name is Tutt," said he. "I am counsel for a man named Hassoun, whom +you are going to try for murder. You are, of course, perfectly familiar +with the facts." + +He fumbled in his waistcoat, produced two withered stogies and cast his +eye along the wall. + +"Would you--mind--if I sat down? And could I offer you a stogy?" + +"Sit down--by all means," answered W.M.P. "No, thanks!"--to the stogy. + +Mr. Tutt sat down, carefully placed his old chimney pot upside down on +the window ledge, and stacked in it the bundle of papers he was +carrying. + +"I thought you might forgive me if I came to talk over the case a little +with you. You see, there are so many things that a prosecutor has to +consider--and which it is right that he should consider." He paused to +light a match. "Now in this case, though in all probability my client is +guilty there is practically no possibility of his being convicted of +anything higher than manslaughter in the first degree. The defense will +produce many witnesses--probably as many as the prosecution. Both sides +will tell their stories in a language unintelligible to the jury, who +must try to ascertain the true inwardness of the situation through an +interpreter. They will realize that they are not getting the real +truth--I mean the Syrian truth. As decent-minded men they won't dare to +send a fellow to the chair whose defense they cannot hear and whose +motives they do not either know or understand. They will feel, as I do +and perhaps you do, that the only persons to do justice among Syrians +are Syrians." + +"Well," replied Mr. Pepperill politely, "what have you to propose?" + +"That you recommend the acceptance of a plea of manslaughter in the +second degree." + +Deputy Assistant District Attorney William Montague Pepperill drew +himself up haughtily. He regarded all criminal practitioners as +semicrooks, ignorant, illiterate, rather dirty men--not in the real +American class. + +"I can do nothing of the kind," he answered sternly and very distinctly. +"If these men seek the hospitality of our shores they must be prepared +to be judged by our laws and by our standards of morality. I do not +agree with you that our juridical processes are not adequate to that +purpose. Moreover, I regard it as unethical--un-eth-i-cal--to accept a +plea for a lesser degree of crime than that which the defendant has +presumptively committed." + +Mr. Tutt regarded him with undisguised admiration. + +"Your sentiments do you honor, Mr. Pepperill!" he returned. "You are +sure you do not mind my smoke? But of course my client is presumed +innocent. I am very hopeful--almost confident--of getting him off +entirely. But rather than take the very slight chance of a conviction +for murder I am letting discretion take the place of valor and offer to +have him admit his guilt of manslaughter." + +"I guess," answered Pepperill laconically, indulging in his only +frequent solecism, "that you wouldn't offer to plead to manslaughter +unless you felt pretty sure your client was going to the chair! Now--" + +Mr. Tutt suddenly rose. + +"My young friend," he interrupted, "when Ephraim Tutt says a thing man +to man--as I have been speaking to you--he means what he says. I have +told you that I expected to acquit my client. My only reason for +offering a plea is the very slight--and it is a very slight--chance that +an Arabian quarrel can be made the basis of a conviction for murder. +When you know me better you will not feel so free to impugn my +sincerity. Are you prepared to entertain my suggestion or not?" + +"Most certainly not!" retorted W.M.P. with the shadow of a sneer. + +"Then I will bid you good-day," said Mr. Tutt, taking his hat from the +window ledge and turning to the door. "And--you young whippersnapper," +he added when once it had closed behind him and he had turned to shake +his lean old fist at the place where W.M.P. presumably was still +sitting, "I'll show you how to treat a reputable member of the bar old +enough to be your grandfather! I'll take the starch out of your darned +Puritan collar! I'll harry you and fluster you and heckle you and make a +fool of you, and I'll roll you up in a ball and blow you out the window, +and turn old Hassoun loose for an Egyptian holiday that will make old +Rome look like thirty piasters! You pinheaded, pretentious, pompous, +egotistical, niminy-piminy--" + +"Well, well, Mr. Tutt, what's the matter?" inquired Peckham, laying his +hand on the old lawyer's shoulder. "What's Peppy been doing to you?" + +"It isn't what he's been doing to me; it's what I'm going to do to him!" +returned Mr. Tutt grimly. "Just wait and see!" + +"Go to it!" laughed the D.A. "Eat him alive! We're throwing him to the +lions!" + +"No decent lion would want him!" retorted Mr. Tutt. "He might maul him a +little, but I won't. I'm just going to give him a full opportunity to +test his little proposition that the institutions of these jolly old +United States are perfectly adapted to settle quarrels among all the +polyglot prevaricators of the world and administer justice among people +who are still in a barbarous or at least in a patriarchal state. He's +young, and he don't understand that a New York merchant is entirely too +conscientious to find a man guilty on testimony that he would discount +heavily in his own business." + +"Go as far as you like," laughed Peckham. + +"Oh, I'm only going as far as Bagdad," answered Mr. Tutt. + +Deputy Assistant District Attorney Pepperill complacently set about the +preparation of his case, utterly unconscious of the dangers with which +his legal path was beset. As he sat at his shiny oaken desk and pressed +the button that summoned the stenographer it seemed to him the simplest +thing in the world to satisfy any jury of what had taken place and the +summit of impudent audacity on the part of Mr. Tutt to have suggested +that Hassoun should be dealt with otherwise than a first-degree +murderer. And it should be added parenthetically that W.M.P., in spite +of his New England temperament, had a burning ambition to send somebody +to the electric chair. + +In truth, on its face the story as related by Fajala Mokarzel and the +other friends of Sardi Babu the deceased pillow-sham vender was +simplicity itself. Besides Sardi Babu and Mokarzel there had been Nicola +Abbu, the confectioner; Menheem Shikrie, the ice-cream vendor; Habu +Kahoots, the showman; and David Elias, a pedler. All six of them, as +they claimed, had been sitting peacefully in Ghabryel & Assad's +restaurant, eating _kibbah arnabeiah_ and _mamoul_. Sardi had ordered +_sheesh kabab_. It was about nine o'clock in the evening, and they were +talking politics and drinking coffee and smoking cigarettes. + +Suddenly Kasheed Hassoun, accompanied by a smaller and much darker man, +had entered and striding up to the table exclaimed in a threatening +manner: "Where is he who did say that he would spit upon the beard of my +bishop?" + +Thereupon Sardi Babu had risen and answered: "Behold, I am he." + +Immediately Kasheed Hassoun, and while his accomplice held them at bay +with a revolver, had leaned across the table and grabbing Sardi by the +throat had broken his neck. Then the smaller man had fired off his +pistol and both of them had run away. The simplest story ever told. +There was everything the law required to send any murderer to the chair, +and little Mr. Pepperill had a diagram made of the inside of the +restaurant and a photograph of the outside of it, and stamped the +indictment in purple ink: Ready for Trial. + +Contemporaneously Mr. Tutt was giving his final instructions to Mr. +Bonnie Doon, his stage manager, director of rehearsals and general +superintendent of arrangements in all cases requiring an extra-artistic +touch. + +"It's too bad we can't cart a few hundred cubic feet of the Sahara into +the court room and divert the Nile down Center Street, but I guess you +can produce sufficient atmosphere," he said. + +"I could all right--if I had a camel," remarked Bonnie. + +"Atmosphere is necessary," continued Mr. Tutt. "Real atmosphere! Have +'em in native costume--beads, red slippers, hookahs, hoochi-koochis." + +"I get you," replied Mr. Doon. "You want a regular Turkish village. +Well, we'll have it all right. I'll engage the entire Streets of Cairo +production from Coney and have Franklin Street crowded with goats, asses +and dromedaries. I might even have a caravan pitch its tents alongside +the Tombs." + +"You can't lay it on too strong," declared Mr. Tutt. "But you don't need +to go off Washington Street. And, Bonnie, remember--I want every blessed +Turk, Greek, Armenian, Jew, Arab, Egyptian and Syrian that saw Sardi +Babu kill Kasheed Hassoun." + +"You mean who saw Kasheed Hassoun kill Sardi Babu," corrected Bonnie. + +"Well--whichever way it was," agreed Mr. Tutt. + +When at length the great day of the trial arrived Judge Wetherell, +ascending the bench in Part Thirteen, was immediately conscious of a +subtle Oriental smell that emanated from no one could say where, but +which none the less permeated the entire court room. It seemed to be a +curious compound of incense, cabbage, garlic and eau de cologne, with a +suggestion of camel. The room was entirely filled with Syrians. One row +of benches was occupied by a solemn group of white-bearded patriarchs +who looked as if they had momentarily paused on a pilgrimage to Mecca. +All over the room rose the murmur of purring Arabic. The stenographer +was examining a copy of Meraat-ul-Gharb, the clerk a copy of El Zeman, +and in front of the judge's chair had been laid a copy of Al-Hoda. + +His honor gave a single sniff, cast his eye over the picturesque throng, +and said: "Pst! Captain! Open that window!" Then he picked up the +calendar and read: "'People versus Kasheed Hassoun--Murder.'" + +The stenographer was humming to himself: + + _Bagdad is a town in Turkey + On a camel tall and jerky_. + +"Are both sides ready to try this case?" inquired Judge Wetherell, +choking a yawn. He was a very stout judge and he could not help yawning. + +Deputy Assistant District Attorney Pepperill and Mr. Tutt rose in +unison, declaring that they were. At or about this same moment the +small door in the rear of the room opened and an officer appeared, +leading in Kasheed Hassoun. He was an imposing man, over six feet in +height, of dignified carriage, serious mien, and finely chiseled +features. Though he was dressed as a European there was nevertheless +something indefinably suggestive of the East in the cut of his clothes; +he wore no waistcoat and round his waist was wound a strip of crimson +cloth. His black eyes glinted through lowering brows, wildly, almost +fiercely, and he strode haughtily beside his guard like some unbroken +stallion of the desert. + +"Well, you may as well proceed to select a jury," directed the court, +putting on his glasses and studying his copy of Al-Hoda with interest. +Presently he beckoned to Pepperill. + +"Have you seen this?" he asked. + +"No, Your Honor. What is it?" + +"It's a newspaper published by these people," explained His Honor. +"Rather amusing, isn't it?" + +"I didn't know they had any special newspaper of their own," admitted +Pepperill. + +"They've got eight right in New York," interjected the stenographer. + +"I notice that this paper is largely composed of advertisements," +commented Wetherell. "But the advertisers are apparently scattered all +over the world--Chicago; Pittsburgh; Canton; Winnipeg; Albuquerque; +Brooklyn; Tripoli; Greenville, Texas; Pueblo; Lawrence, Massachusetts; +Providence, Rhode Island; Fall River; Detroit--" + +"Here's one from Roxbury, Massachusetts, and another from Mexico City," +remarked the clerk delightedly. + +"And here's one from Paris, France," added the stenographer. "Say! Some +travelers!" + +"Well, go on getting the jury," said the judge, yawning again and +handing the paper to the clerk. + +At that moment Mr. Salim Zahoul, the interpreter procured by Mr. +Pepperill, approached, bowed and, twisting his purple mustache, +addressed the court: "Your Excellence: I haf to zay dat dees papaire eet +haf articles on zis affair--ze _memkaha_--zat are not diplomatique." + +Judge Wetherell blinked at him. + +"Who's this man?" he demanded. + +"That's the interpreter," explained W.M.P. + +"Interpreter!" answered the court. "I can't understand a word he says!" + +"He was the best I could get," apologized Pepperill, while the +countenance of Mr. Zahoul blazed with wrath and humiliation. "It's very +difficult to get a fluent interpreter in Arabic." + +"Well, just interpret what _he_ says to _me_, will you?" kindly +requested His Honor. + +"I zay," suddenly exploded Zahoul--"dees papaire eet half contemptuous +article on ze _menkaha_ zat dees Kasheed Hassoun not kill dees Sardi +Babu!" + +"He says," translated Pepperill, "that the newspaper contains an +indiscreet article in favor of the defense. I had no idea there would be +any improper attempt to influence the jury." + +"What difference does it make, anyway?" inquired His Honor. "You don't +expect any juryman is going to read that thing, do you? Why, it looks as +if a bumblebee had fallen into an ink bottle and then had a fit all +over the front page." + +"I don't suppose--" began Pepperill. + +"Go on and get your jury!" admonished the court. + +So the lion and the lamb in the shape of Mr. Tutt and Pepperill +proceeded to select twelve gentlemen to pass upon the issue who had +never been nearer to Syria than the Boardwalk at Atlantic City and who +only with the utmost attention could make head or tail of what Mr. Salim +Zahoul averred that the witnesses were trying to say. Moreover, most of +the talesmen evinced a profound distrust of their own ability to do +justice between the People and the defendant and a curious desire to be +relieved from service. However, at last the dozen had been chosen and +sworn, the congestion of the court room slightly relieved, Mr. Zahoul +somewhat appeased, and Mr. William Montague Pepperill rose to outline +his very simple case to the jury. + +There was, he explained, no more difficulty in administering justice in +the case of a foreigner than of anyone else. All were equal in the eyes +of the law--equally presumed to be innocent, equally responsible when +proved guilty. And he would prove Kasheed Hassoun absolutely +guilty--guilty beyond a reasonable doubt, beyond any doubt. He would +produce five--five reputable witnesses who would swear that Hassoun had +murdered Sardi Babu; and he prophesied that he would unhesitatingly +demand at the end of the trial such an unequivocal, fearless, honest +expression of their collective opinion as would permanently fix Mr. +Kasheed Hassoun so that he could do no more harm. He expressed it more +elegantly but that was the gist of it. He himself was as sincere and +honest in his belief in his ability to establish the truth of his claim +as he was in the justice of his cause. Alas, he was far too young to +realize that there is a vast difference between knowing the truth and +being able to demonstrate what it is! + +In proper order he called the photographer who had taken the picture of +the restaurant, the draftsman who had made the diagram of the interior, +the policeman who had arrested Hassoun, the doctor who had performed the +official autopsy upon the unfortunate Babu, and the five Syrians who had +been present when the crime was perpetrated. Each swore by all that was +holy that Kasheed Hassoun had done exactly as outlined by Assistant +District Attorney Pepperill--and swore it word for word, _verbatim et +literatim, in iisdem verbis, sic_, and yet again exactly. Their +testimony mortised and tenoned in a way to rejoice a cabinet-maker's +heart. And at first to the surprise and later to the dismay of Mr. +Pepperill, old man Tutt asked not one of them a single question about +the murder. Instead he merely inquired in a casual way where they came +from, how they got there, what they did for a living, and whether they +had ever made any contradictory statement as to what had occurred, and +as his cross-examination of Mr. Habu Kahoots was typical of all the rest +it may perhaps be set forth as an example, particularly as Mr. Kahoots +spoke English, which the others did not. + +"And den," asserted Mr. Kahoots stolidly, "Kasheed Hassoun, he grab heem +by ze troat and break hees neck." + +He was a short, barrel-shaped man with curly ringlets, fat, bulging +cheeks, heavy double chin and enormous paunch, and he wore a green +worsted waistcoat and his fingers were laden with golden rings. + +"Ah!" said Mr. Tutt complaisantly. "You saw all that exactly as you have +described it?" + +"Yes, sair!" + +"Where were you born?" + +"Acre, Syria." + +"How long have you been in the United States?" + +"Tirty years." + +"Where do you live?" + +"Augusta, Georgia." + +"What's your business?" + +Mr. Kahoots visibly expanded. + +"I have street fair and carnival of my own. I have electric theater, old +plantation, Oriental show, snake exhibit and merry-go-round." + +"Well, well!" exclaimed Mr. Tutt. "You are certainly a capitalist! I +hope you are not financially overextended!" + +Mr. Pepperill looked pained, not knowing just how to prevent such +jocoseness on the part of his adversary. + +"I object," he muttered feebly. + +"Quite properly!" agreed Mr. Tutt. "Now, Mr. Kahoots, are you a citizen +of the United States?" + +Mr. Kahoots looked aggrieved. + +"Me? No! Me no citizen. I go back sometime Acre and build moving-picture +garden and ice-cream palace." + +"I thought so," commented Mr. Tutt. "Now what, pray, were you doing in +the Washington Street restaurant?" + +"Eating _kibbah arnabeiah_ and _mamoul_." + +"I mean if you live in Augusta how did you happen to be in New York at +precisely that time?" + +"Eh?" + +"How you come in New York?" translated Mr. Tutt, while the jury laughed. + +"Just come." + +"But why?" + +"Just come." + +"Yes, yes; but you didn't come on just to be present at the murder, did +you?" + +Kahoots grinned. + +"I just come to walk up and down." + +"Where--walk up and down?" + +"On Washington Street. I spend the winter. I do nothing. I rich man." + +"How long did you stay when you just came on?" + +"Tree days. Then I go back." + +"Why did you go back?" + +"I dunno. Just go back." + +Mr. Tutt sighed. The jury gave signs of impatience. + +"Look here!" he demanded. "How many times have you gone over your story +with the district attorney?" + +"Nevvair." + +"What?" + +"I nevvair see heem." + +"Never see whom?" + +"Dees man--judge." + +"I'm not talking about the judge." + +"I nevvair see no one." + +"Didn't you tell the Grand Jury that Hassoun stabbed Babu with a long +knife?" + +"I dunno heem!" + +"Who?" + +"Gran' Jury." + +"Didn't you go into a big room and put your hand on a book and swear?" + +"I no swear--ever!" + +"And tell what you saw?" + +"I tell what I saw." + +"What did you see?" + +"I saw Hassoun break heem hees neck." + +"Didn't you say first that Hassoun stabbed Babu?" + +"No--nevvair!" + +"Then didn't you come back and say he shot him?" + +"No--nevvair!" + +"And finally, didn't you say he strangled him--after you had heard that +the coroner's physician had decided that that was how he was killed?" + +"Yes--he break heem hees neck." + +Mr. Kahoots was apparently very much bored, but he was not bored in +quite the same way as the judge, who, suddenly rousing himself, asked +Mr. Tutt if he had any basis for asking such questions. + +"Why, certainly," answered the old lawyer quietly. "I shall prove that +this witness made three absolutely contradictory statements before the +Grand Jury." + +"Is that so, Mister District Attorney?" + +"I don't know," replied Pepperill faintly. "I had nothing to do with the +proceedings before the Grand Jury." + +Judge Wetherell frowned. + +"It would seem to me," he began, "as if a proper preparation of the case +would have involved some slight attention to--Well, never mind! Proceed, +Mr. Tutt." + +"Kahoots!" cried the lawyer sternly. "Isn't it a fact that you have +been convicted of crime yourself?" + +The proprietor of the merry-go-round drew himself up indignantly. + +"Me? No!" + +"Weren't you convicted of assault on a man named Rafoul Rabyaz?" + +"Me? Look here, sir! I tell you 'bout dat! This Rafoul Rabyaz he my +partner, see, in pool, billiard and cigar business on Greenwich Street. +This long time ago. Years ago. We split up. I sell heem my shares, see. +I open next door--pool table, café and all. But I not get full half the +stock. I not get the tablecloth, see. I was of the tablecloth you know +short. It don't be there. I go back there that time. I see heem. I say, +'We don't count those tablecloth.' He say, 'Yes.' I say,'No.' He +say,'Yes.' I say 'No.' He say, 'Yes.' I say, 'No'--" + +"For heaven's sake," exclaimed Judge Wetherell, "don't say that again!" + +"Yes, sair," agreed the showman. "All right. I say, 'No.' I say, 'You +look in the book.' He say, 'No.' We each take hold of the cloth. I have +a knife. I cut cloth in two. I give heem half. I take half. I say, 'You +take half; I take half.' He say, 'Go to hell!'" + +He waved his hand definitively. + +"Well?" inquired Mr. Tutt anxiously. + +"Dat's all!" answered Mr. Kahoots. + +One of the jurymen suddenly coughed and thrust his handkerchief into his +mouth. + +"Then you stuck your knife into him, didn't you?" suggested Mr. Tutt. + +"Me? No!" + +Mr. Tutt shrugged his shoulders and pursed his lips. + +"You were convicted, weren't you?" + +"I call twenty witness!" announced Mr. Kahoots with a grand air. + +"You don't need to!" retorted Mr. Tutt. "Now tell us why you had to +leave Syria?" + +"I go in camel business at Coney Island," answered the witness demurely. + +"What!" shouted the lawyer. "Didn't you run away from home because you +were convicted of the murder of Fatima, the daughter of Abbas?" + +"Me? No!" Mr. Kahoots looked shocked. + +Mr. Tutt bent over and spoke to Bonnie Doon, who produced from a leather +bag a formidable document on parchment-like paper covered with +inscriptions in Arabic and adorned with seals and ribbons. + +"I have here, Your Honor," said he, "the record of this man's conviction +in the Criminal Court in Beirut, properly exemplified by our consuls and +the embassy at Constantinople. I have had it translated, but if Mr. +Pepperill prefers to have the interpreter read it--" + +"Show it to the district attorney!" directed His Honor. + +Pepperill looked at it helplessly. + +"You may read your own translation," said the court drowsily. + +Mr. Tutt bowed, took up the paper and faced the jury. + +"This is the official record," he announced. "I will read it. + +"'In the name of God. + +"'On a charge of the murder of the gendarmes Nejib Telhoon and +Abdurrahman and Ibrahim Aisha and Fatima, daughter of Hason Abbas, of +the attack on certain nomads, of having fired on them with the intent of +murder, of participation and assistance in the act of murder, of having +shot on the regular troops, of assisting in the escape of some offenders +and of having drawn arms on the regular troops, during an uprising on +Sunday, January 24, 1303--Mohammedan style--between the inhabitants of +the Mezreatil-Arab quarter in Beirut and the nomads who had pitched +their tents near by, the following arrested persons, namely--Metri son +of Habib Eljemal and Habib son of Mikael Nakash and Hanna son of +Abdallah Elbaitar and Elias Esad Shihada and Tanous son of Jerji Khedr +and Habib son of Aboud Shab and Elias son of Metri Nasir and Khalil son +of Mansour Maoud and Nakhle son of Elias Elhaj and Nakhle son of Berkat +Minari and Antoon son of Berkat Minari and Lutfallah son of +Jerji-Kefouri and Jabran Habib Bishara and Kholil son of Lutf Dahir and +Nakhle Yousif Eldefoumi, all residents of the said quarter and Turkish +subjects, and their companions, sixty-five fugitives, namely--Isbir +Bedoon son of Abdallah Zerik and Elias son of Kanan Zerik and Amin Matar +and Jerji Ferhan alias Baldelibas and Habu son of Hanna Kahoots and--'" + +Deputy Assistant District Attorney Pepperill started doubtfully to his +feet. + +"If the court please," he murmured in a sickly voice, "I object. In the +first place I don't know anything about this record--and I object to it +on that ground; and in the second place a trial and conviction in the +absence of a defendant under our law is no conviction at all." + +"But this man is a Turkish subject and it's a good conviction in +Turkey," argued Mr. Tutt. + +"Well, it isn't here!" protested Pepperill. + +"You're a little late, aren't you?" inquired His Honor. "It has all been +read to the jury. However, I'll entertain a motion to strike out--" + +"I should like to be heard on the question," said Mr. Tutt quickly. +"This is an important matter." + +Unexpectedly a disgruntled-looking talesman in the back row held up his +hand. + +"I'd like to ask a question myself," he announced defiantly, almost +arrogantly, after the manner of one with a grievance. "I'm a +hard-working business man. I've been dragged here against my will to +serve on this jury and decide if this defendant murdered somebody or +other. I don't see what difference it makes whether or not this witness +cut a tablecloth in two or murdered Fatima, the daughter of What's his +Name. I want to go home--sometime. If it is in order I'd like to suggest +that we get along." + +Judge Wetherell started and peered with a puzzled air at this bold +shatterer of established procedure. + +"Mister Juryman," said he severely, "these matters relate directly to +the credibility of the witness. They are quite proper. +I--I--am--surprised--" + +"But, Your Honor," expostulated the iconoclast upon the back row, "I +guess nobody is going to waste much time over this Turkish snake +charmer! Ain't there a policeman or somebody we can believe who saw what +happened?" + +"Bang!" went the judicial gavel. + +"The juryman will please be silent!" shouted Judge Wetherell. "This is +entirely out of order!" Then he quickly covered his face with his +handkerchief. "Proceed!" he directed in a muffled tone. + +"Where were we?" asked Mr. Tutt dreamily. + +"Fatima, the daughter of Abbas," assisted the foreman, sotto voce. + +"And I objected to Fatima, the daughter of Abbas!" snapped Pepperill. + +"Well, well!" conceded Mr. Tutt. "She's dead, poor thing! Let her be. +That is all, Mr. Kahoots." + +It is difficult to describe the intense excitement these digressions +from the direct testimony occasioned among the audience. The reference +to the billiard-table cover and the murder of the unfortunate Fatima +apparently roused long-smoldering fires. A group of Syrians by the +window broke into an unexpected altercation, which had to be quelled by +a court officer, and when quiet was restored the jury seemed but +slightly attentive to the precisely similar yarns of Nicola Abbu, +Menheem Shikrie, Fajal Mokarzel and David Elias, especially as the +minutes of the Grand Jury showed that they had sworn to three entirely +different sets of facts regarding the cause of Babu's death. Yet when +the People rested it remained true that five witnesses, whatever the +jury may have thought of them, had testified that Hassoun strangled +Sardi Babu. The jury turned expectantly to Mr. Tutt to hear what he had +to say. + +"Gentlemen," he said quietly, "the defense is very simple. None of the +witnesses who have appeared here was in fact present at the scene of the +homicide at all. I shall call some ten or twelve reputable Syrian +citizens who will prove to you that Kasheed Hassoun, my client, with a +large party of friends was sitting quietly in the restaurant when Sardi +Babu came in with a revolver in his hand, which he fired at Hassoun, and +that then, and only then, a small dark man whose identity cannot be +established--evidently a stranger--seized Babu before he could fire +again, and killed him--in self-defense." + +Mr. William Montague Pepperill's jaw dropped as if he had seen the ghost +of one of his colonial ancestors. He could not believe that he had heard +Mr. Tutt correctly. Why, the old lawyer had the thing completely turned +round! Sardi Babu hadn't gone to the restaurant. He had been in the +restaurant, and it had been Kasheed Hassoun who had gone there. + +Yet, one by one, placidly, imperturbably, the dozen witnesses foretold +by Mr. Tutt, and gathered in by Bonnie Doon, marched to the chair and +swore upon the Holy Bible that it was even as Mr. Tutt had said, and +that no such persons as Mokarzel, Kahoots, Abbu, Shikrie and Elias had +been in the restaurant at any time that evening, but on the contrary +that they, the friends of Hassoun, had been there eating Turkish pie--a +few might have had mashed beans with _taheenak_--when Sardi Babu, +apparently with suicidal intent, entered alone to take vengeance upon +the camel owner. + +"That is all. That is our case," said Mr. Tutt as the last Syrian left +the stand. + +But there was no response from the bench. Judge Wetherell had been +dozing peacefully for several hours. Even Pepperill could not avoid a +decorous smile. Then the clerk pulled out the copy of Al-Hoda and +rustled it, and His Honor, who had been dreaming that he was riding +through the narrow streets of Bagdad upon a jerky white dromedary so +tall that he could peek through the latticed balconies at the plump, +black-eyed odalisques within the harems, slowly came back from Turkey to +New York. + +"Gentlemen of the jury," said he, pulling himself together, "the +defendant here is charged by the Grand Jury with having murdered Fatima +the daughter of Abbas--I beg your pardon! I mean--who was it?--one Sardi +Babu. I will first define to you the degrees of homicide--" + + * * * * * + +One day three months later, after Kasheed Hassoun had been twice tried +upon the same testimony and the jury had disagreed--six to six, each +time--Mr. Tutt, who had overstayed his lunch hour at the office, put on +his stovepipe hat and strolled along Washington Street, looking for a +place to pick up a bite to eat. It was in the middle of the afternoon +and most of the stores were empty, which was all the more to his liking. +He had always wanted to try some of that Turkish pie that they had all +talked so much about at the trial. Presently a familiar juxtaposition of +names caught his eye--Ghabryel & Assad. The very restaurant which had +been the scene of the crime! Curiously, he turned in there. Like all the +other places it was deserted, but at the sound of his footsteps a little +Syrian boy not more than ten years old came from behind the screen at +the end of the room and stood bashfully awaiting his order. + +Mr. Tutt smiled one of his genial weather-beaten smiles at the youngster +and glancing idly over the bill of fare ordered _biklama_ and coffee. +Then he lit a stogy and stretched his long legs comfortably out under +the narrow table. Yes, this was the very spot where either Sardi Babu +and his friends had been sitting the night of the murder or Kasheed +Hassoun and his friends--one or the other; he wondered if anybody would +ever know which. Was it possible that in this humdrum little place human +passions had been roused to the taking of life on account of some mere +difference in religious dogma? Was this New York? Was it possible to +Americanize these people? A door clattered in the rear, and from behind +the screen again emerged the boy carrying a tray of pastry and coffee. + +"Well, my little man," said Mr. Tutt, "do you work here?" + +"Oh, yes," answered the embryonic citizen. "My father, he owns half the +store. I go to school every day, but I work here afterward. I got a +prize last week." + +"What sort of a prize?" + +"I got the English prize." + +The lawyer took the child's hand and pulled him over between his knees. +He was an attractive lad, clean, responsive, frank, and his eyes looked +straight into Mr. Tutt's. + +"Sonny," he inquired his new friend, "are you an American?" + +"Me? Sure! You bet I'm an American! The old folks--no! You couldn't +change 'em in fifty years. They're just what they always were. They +don't want anything different. They think they're in Syria yet. But +me--say, what do you think? Of course I'm an American!" + +"That's right!" answered Mr. Tutt, offering him a piece of pastry. "And +what is your name?" + +"George Nasheen Assad," answered the boy, showing a set of white teeth. + +"Well, George," continued the attorney, "what has become of Kasheed +Hassoun?" + +"Oh, he's down at Coney Island. He runs a caravan. He has six camels. I +go there sometimes and he lets me ride for nothing. I know who you are," +said the little Syrian confidently, as he took the cake. "You're the +great lawyer who defended Kasheed Hassoun." + +"That's right. How did you know that, now?" + +"I was to the trial." + +"Do you think he ought to have been let off?" asked Mr. Tutt +whimsically. + +"I don't know," returned the child. "I guess you did right not to call +me as a witness." + +Mr. Tutt wrinkled his brows. + +"Eh? What? You weren't a witness, were you?" + +"Of course I was!" laughed George. "I was here behind the screen. I saw +the whole thing. I saw Kasheed Hassoun come in and speak to Sardi Babu, +and I saw Sardi draw his revolver, and I saw Kasheed tear it out of his +hand and strangle him." + +Mr. Tutt turned cold. + +"You saw that?" he challenged. + +"Sure." + +"How many other people were there in the restaurant?" inquired Mr. Tutt. + +"Nobody at all," answered George in a matter-of-fact tone. "Only Kasheed +and Sardi. Nobody else was in the restaurant." + + + + +Contempt of Court + + + The court can't determine what is honor.--Chief Baron Bowes, 1743. + + I know what my code of honor is, my lord, and I intend to adhere to + it.--John O'Conner, M.P., in Parnell Commission's Proceedings, 103d + Day; Times Rep. pt. 28, pp. 19 _ff_. + + Well, honor is the subject of my story.--Julius Caesar, Act I, Sc 2. + +"What has become of Katie--the second waitress?" asked Miss Althea +Beekman of Dawkins, her housekeeper, as she sat at her satinwood desk +after breakfast. "I didn't see her either last night or this morning." + +Dawkins, who was a mid-Victorian, flushed awkwardly. + +"I really had to let the girl go, ma'am!" she explained with an outraged +air. "I hardly know how to tell you--such a thing in this house! I +couldn't possibly have her round. I was afraid she might corrupt the +other girls, ma'am--and they are such a self-respecting lot--almost +quite ladylike, ma'am. So I simply paid her and told her to take herself +off." + +Miss Beekman looked pained. + +"You shouldn't have turned her out into the street like that, Dawkins!" +she expostulated. "Where has she gone?" + +Dawkins gazed at her large feet in embarrassment. + +"I don't know, ma'am," she admitted. "I didn't suppose you'd want her +here so I sent her away. It was quite inconvenient, too--with the +servant problem what it is. But I'm hoping to get another this afternoon +from Miss Healey's." + +Miss Beekman was genuinely annoyed. + +"I am seriously displeased with you, Dawkins!" she returned severely. +"Of course, I am shocked at any girl in my household misbehaving +herself, but--I--wouldn't want her to be sent away--under such +circumstances. It would be quite heartless. Yes, I am very much +disturbed!" + +"I'm sorry, ma'am," answered the housekeeper penitently. "But I was only +thinking of the other girls." + +"Well, it's too late to do anything about it now," repeated her +mistress. "But I'm sorry, Dawkins; very sorry, indeed. We have +responsibilities toward these people! However--this is Thursday, isn't +it?--we'll have veal for lunch as usual--and she was so pretty!" she +added inconsequently. + +"H'm. That was the trouble!" sniffed the housekeeper. "We're well rid of +her. You'd think a girl would have some consideration for her +employer--if nothing else. In a sense she is a guest in the house and +should behave herself as such!" + +"Yes, that is quite true!" agreed her employer. "Still--yes, Brown Betty +is very well for dessert. That will do, Dawkins." + +Behind the curtain of this casual conversation had been enacted a +melodrama as intensely vital and elemental as any of Shakespeare's +tragedies, for the day Dawkins had fired Katie O'Connell--"for reasons," +as she said--and told her to go back where she came from or anywhere she +liked for that matter, so long as she got out of her sight, Katie's +brother Shane in the back room of McManus' gin palace gave Red +McGurk--for the same "reasons"--a certain option and, the latter having +scornfully declined to avail himself of it, had then and there put a +bullet through his neck. But this, naturally, Miss Beekman did not know. + +As may have been already surmised Miss Althea was a gracious, gentle and +tender-hearted lady who never knowingly would have done a wrong to +anybody and who did not believe that simply because God had been pleased +to call her into a state of life at least three stories higher than her +kitchen she was thereby relieved from her duty toward those who occupied +it. Nevertheless, from the altitude of those three stories she viewed +them as essentially different from herself, for she came of what is +known as "a long line of ancestors." As, however, Katie O'Connell and +Althea Beekman were practically contemporaries, it is somewhat difficult +to understand how one of them could have had a succession of ancestors +that was any longer than that of the other. Indeed, Miss Beekman's +friend, Prof. Abelard Samothrace, of Columbia University, probably would +have admitted that just as the two had lived in the same house--albeit +at different levels--on Fifth Avenue, so their forebears at some +prehistoric period had, likely as not, occupied the same cave and had in +company waded on frosty mornings the ice-skimmed swamps of Mittel Europa +in pursuit of the cave bear, the mastodon and the woolly rhinoceros, and +for afternoon relaxation had made up twosomes for hunting wives with +stone clubs instead of mashies in their hairy prehensile hands. + +It would seem, therefore, that--whatever of tradition might have +originated in the epoch in question--glimmerings of sportsmanship, of +personal pride, of tribal duty or of conscience ought to have been the +common heritage of them both. For it was assuredly true that while Miss +Katie's historic ancestors had been Celtiberians, clad on occasion only +in a thin coating of blue paint, Miss Althea's had dwelt in the dank +marshes of the Elbe and had been unmistakably Teutonic, though this +curse had been largely removed by racial intermarriage during subsequent +thousands of years. Indeed, it may well have been that in the dimmer +past some Beekman serf on bended knee had handed a gilded harp to some +King O'Connell on his throne. If the O'Connells were foreigners the +Beekmans, from the point of view of the aboriginal American, were no +less so simply because they had preceded them by a couple of hundred +years. + +Tradition is not a matter of centuries but of ages. If Katie inherited +some of hers from the peat bogs adjacent to Tara's Halls in that remote +period when there were still snakes in Ireland, Miss Althea had +vicariously acquired others from the fur-clad barbarians described by +Tacitus who spent their leisure time in drinking, gambling or splitting +each other's skulls with stone mallets. On this subject see Spencer's +"Data of Ethics" and Lecky's "History of European Morals." But all this +entirely escaped Miss Althea, who suffered from the erroneous impression +that because she was a Beekman and lived in a stone mansion facing +Central Park she differed fundamentally not only from the O'Connells but +from the Smiths, the Pasquales, the Ivanovitches and the Ginsbergs, all +of whom really come of very old families. Upon this supposed difference +she prided herself. + +Because she was, in fact, mistaken and because the O'Connells shared +with the Beekmans and the Ginsbergs a tradition reaching back to a +period when revenge was justice, and custom of kinsfolk the only law, +Shane O'Connell had sought out Red McGurk and had sent him unshriven to +his God. The only reason why this everyday Bowery occurrence excited any +particular attention was not that Shane was an O'Connell but that McGurk +was the son of a political boss of much influence and himself one of the +leaders of a notorious cohort of young ruffians who when necessary could +be relied upon to stuff a ballot box or otherwise to influence public +opinion. As Red was a mighty man in Gideon, so his taking off was an +event of moment, and he was waked with an elegance unsurpassed in the +annals of Cherry Hill. + +"An' if ye don't put the son-of-a----- who kilt me b'y in th' chair, ye +name's mud--see?" the elder McGurk had informed District Attorney +Peckham the next morning. "I've told the cops who done it. Now you do +the rest--understand?" + +Peckham understood very well. No one seeing the expression on McGurk's +purple countenance could have failed to do so. + +"We'll get him! Don't you worry!" Peckham had assured the desolated +father with a manner subtly suggesting both the profoundest sympathy and +the prophetic glories of a juridical revenge in which the name of McGurk +would be upon every lip and the picture of the deceased, his family, and +the home in which they dwelt would be featured on the front page of +every journal. "We'll get him, all right!" + +"See to it that ye do!" commented his visitor meaningly. + +Therefore, though no one had seen him commit the crime, word was passed +along the line to pick up Shane O'Connell for the murder of Red McGurk. +It mattered not there was no evidence except the report of a muttered +threat or two and the lie passed openly the week before. + +Everybody knew that Shane had done it, and why; though no one could tell +how he knew it. And because everybody knew, it became a political +necessity for Peckham to put him under arrest with a great fanfare of +trumpets and a grandiose announcement of the celerity with which the +current would be turned through his body. + +The only fly in the ointment was the fact that O'Connell had walked into +the district attorney's office as soon as the rumor reached him and +quietly submitted to being arrested, saying merely: "I heard you wanted +me. Well, here I am!" + +But though they badgered him for hours, lured him by every pretext to +confess, put a stool pigeon in the same cell with him, and resorted to +every trick, device and expedient known to the prosecutor's office to +trap him into some sort of an admission, they got nothing for their +pains. It was just one of those cases where the evidence simply wasn't +forthcoming. And yet Peckham was aware that unless he convicted +O'Connell his name would indeed be mud--or worse. This story, however, +is concerned less with the family honor of the O'Connells than with that +of the Beekmans. + +Miss Althea was the last surviving member of her branch of the family. +Though she would probably have regarded it as slightly vulgar to have +been referred to as "one hundred per cent American" she was so nearly +so--except for a reminiscent affection for "the late dear Queen"--that +the phrase in her case would have been substantially correct. Her mother +had been the daughter of a distinguished Revolutionary statesman who had +been a signer of the Declaration of Independence, an ambassador and +justice of the Supreme Court as well; her father a celebrated newspaper +editor. + +She had been born in the Prue and I period in Gramercy Park near what is +now The Players' Club, and the old colonial house with its white +trimmings and ornamental ironwork had been the scene of many a modest +gayety at a time when Emerson, Lowell, and George William Curtis were +viewed less as citizens than as high priests of Culture, sharing equally +in sanctity with the goddess thereof. She could just remember those +benign old gentlemen, as well as the many veterans of the Civil War who +dined at her father's decorous mahogany and talked of the preservation +of the Constitution and those other institutions to found which it is +generally assumed the first settlers landed on the Atlantic seaboard and +self-sacrificingly accepted real estate from the wily native in return +for whisky and glass beads. She was forty-seven years of age, a Colonial +Dame, a Daughter of the American Revolution, a member of the board of +directors of several charitable institutions, and she was worth a couple +of million dollars in railroad securities. On Sundays she always +attended the church in Stuyvesant Square frequented by her family, and +as late as 1907 did so in the famous Beekman C-spring victoria driven +by an aged negro coachman. + +But besides being full of rectitude and good works--which of themselves +so often fail of attraction--Miss Althea was possessed of a face so +charming even in its slightly faded prettiness that one wondered how it +was possible that she could successfully have withstood the suitors who +must have crowded about her. Her house on Fifth Avenue was full of old +engravings of American patriots, and the library inherited from her +editorial parent was replete with volumes upon subjects which would have +filled a Bolshevik with disgust. Briefly, if ever Trotzky had become +Commissar of the Soviet of Manhattan, Miss Althea and those like her +would have been the first candidates for a drumhead court-martial. + +She prided herself equally upon her adherence to religious principle and +the Acts of Congress. For the law, merely as law, she had the +profoundest veneration, viewing the heterogeneous statutes passed from +time to time by desultory legislators much as if they had in some +mysterious way been handed down from Mount Sinai along with the Ten +Commandments. + +For any violator of the law she had the uttermost abhorrence, and the +only weakness in her ethics arose out of her failure to discriminate +between relative importances, for she undoubtedly regarded the sale of a +glass of beer after the closing hour as being quite as reprehensible as +grand larceny or the bearing of false witness. To her every judge must +be a learned, wise and honorable man because he stood for the +enforcement of the law of the land, and she never questioned whether or +not that law was wise or otherwise, which latter often--it must be +confessed--it was not. + +In a word, though there was nothing progressive about Miss Althea she +was one of those delightful, cultivated, loyal and enthusiastic female +citizens who are rightfully regarded as vertebrae in the backbone of a +country which, after it has got its back up, can undoubtedly lick any +other nation on earth. It was characteristic of her that carefully +folded inside the will drawn for her by her family solicitor was a slip +of paper addressed to her heirs and next of kin requesting that at her +funeral the national anthem should be played and that her coffin should +be draped with the American flag. + +But there was a somewhat curious if not uncommon inconsistency in Miss +Beekman's attitude toward lawbreakers in that once they were in prison +they instantly became objects of her gentlest solicitude. Thus she was a +frequent visitor at the Tombs, where she brought spiritual, and more +often, it must be frankly admitted, bodily comfort to those of the +inmates who were recommended by the district attorney and prison +authorities as worthy of her attention; and Prosecutor Peckham being not +unmindful of the possible political advantage that might accrue from +being on friendly terms with so well-known a member of the distinguished +family of Beekman, lost no opportunity to ingratiate himself with her +and gave orders, to his subordinates to make her path as easy as +possible. Thus quite naturally she had heard of Tutt & Tutt, and had a +casual acquaintance with the senior partner himself. + +"That O'Connell is a regular clam--won't tell me anything at all!" +remarked Mr. Tutt severely, hanging up his hat on the office tree with +one hand while he felt for a match in his waistcoat pocket with the +other, upon the afternoon of the day that Miss Beekman had had the +conversation with Dawkins with which this story opens. + +"National temperament," answered Bonnie Doon, producing the desired +match. "It's just like an Irishman to refuse point-blank to talk to the +lawyer who has been assigned to defend him. He's probably afraid he'll +make some admission from which you will infer he's guilty. No Irishman +ever yet admitted that he was guilty of anything!" + +"Well, I've never met a defendant of any other nationality who would, +either," replied Mr. Tutt, pulling vigorously at his stogy. "Even so, +this chap O'Connell is a puzzle to me. 'Go ahead and defend me,' said he +today, 'but don't ask me to talk about the case, because I won't.' I +give it up. He wouldn't even tell me where he was on the day of the +murder." + +Bonnie grunted dubiously. + +"There may be a very good reason for that!" he retorted. "If what rumor +says is true he simply hunted for McGurk until he found him and put a +lead pellet back of his ear." + +"And also, if what rumor says is true," supplemented Tutt, who entered +at this moment, "a good job it was, too. McGurk was a treacherous, dirty +blackguard, the leader of a gang of criminals, even if he was, as they +all agree, a handsome rascal who had every woman in the district on +tenterhooks. Any girl in this case?" + +Bonnie shrugged his shoulders. + +"They claim so; only there's nothing definite. The O'Connells are well +spoken of." + +"If there was, that would explain why he wouldn't talk," commented Mr. +Tutt. "That's the devil of it. You can't put in a defense under the +unwritten law without besmirching the very reputation you are trying to +protect." + +The senior partner of Tutt & Tutt wheeled his swivel chair to the window +and crossing his congress boots upon the sill gazed contemplatively down +upon the shipping. + +"Unwritten law!" sarcastically exclaimed Tutt from the doorway. "There +ain't no such animal in these parts!" + +"You're quite wrong!" retorted his elder partner. "Most of our +law--ninety-nine per cent of it, in fact--is unwritten." + +"Excuse me!" interjected Bonnie Doon, abandoning his usual flippancy. +"What is that you said, Mr. Tutt?" + +"That ninety-nine per cent of the laws by which we are governed are +unwritten laws, just as binding as the printed ones upon our statute +books, which after all are only the crystallization of the sentiments +and opinions of the community based upon its traditions, manners, +customs and religious beliefs. For every statute in print there are a +hundred that have no tangible existence, based on our sense of decency, +of duty and of honor, which are equally controlling and which it has +never been found necessary to reduce to writing, since their infraction +usually brings its own penalty or infringes the more delicate domain of +private conscience where the crude processes of the criminal law cannot +follow. The laws of etiquette and fair play are just as obligatory as +legislative enactments--the Ten Commandments as efficacious as the Penal +Code." + +"Don't you agree with that, Tutt?" demanded Bonnie. "Every man's +conscience is his own private unwritten law." + +Tutt looked skeptical. + +"Did you say every man had a conscience?" he inquired. + +"And it makes a lot of trouble sometimes," continued Mr. Tutt, ignoring +him. "You remember when old Cogswell was on the bench and a man was +brought before him for breaking his umbrella over the head of a fellow +who had insulted the defendant's wife, he said to the jury: 'Gentlemen, +if this plaintiff had called my wife a name like that I'd have smashed +my umbrella over his head pretty quick. However, that's not the law! +Take the case, gentlemen!'" + +"Well, I guess I was wrong," admitted Tutt. "Of course, that is +unwritten law. People don't like to punish a man for resenting a slur +upon his wife's reputation." + +"But you see where that leads you?" remarked his partner. "The so-called +unwritten law is based on our inherited idea of chivalry. A lady's honor +and reputation were sacred, and her knight was prepared instantly to +defend it with the last drop of his blood. A reflection on her honesty +was almost as unbearable as one upon her virtue. Logically, the +unwritten law ought to permit women to break their contracts and do +practically anything they see fit." + +"They do, don't they--the dear things!" sighed Bonnie. + +"I remember," interjected Tutt brightly, "when it was the unwritten law +of Cook County, Illinois--that's Chicago, you know--that any woman could +kill her husband for the life-insurance money. Seriously!" + +"There's no point of chivalry that I can see involved in that--it's +merely good business," remarked Mr. Doon, lighting another cigarette. +"All the same it's obvious that the unwritten law might be stretched a +long way. It's a great convenience, though, on occasion!" + +"We should be in an awful stew if nowadays we substituted ideas of +chivalry for those of justice," declared Mr. Tutt. "Fortunately the +danger is past. As someone has said, 'The women, once our superiors, +have become our equals!'" + +"We don't even give 'em our seats in the Subway," commented Tutt +complacently. "No, we needn't worry about the return of chivalry--in New +York at any rate." + +"I should say not!" exclaimed Miss Wiggin, entering at that moment with +a pile of papers, as nobody rose. + +"But," insisted Bonnie, "all the same there are certainly plenty of +cases where if he had to choose between them any man would obey his +conscience rather than the law." + +"Of course, there are such cases," admitted Mr. Tutt. "But we ought to +discourage the idea as much as possible." + +"Discourage a sense of honor?" exclaimed Miss Wiggin. "Why, Mr. Tutt!" + +"It depends on what you mean by honor," he retorted. "I don't take much +stock in the kind of honor that makes an heir apparent 'perjure himself +like a gentleman' about a card game at a country house." + +"Neither do I," she returned, "any more than I do in the kind of honor +that compels a man to pay a gambling debt before he pays his tailor, but +I do believe that there may be situations where, though it would not be +permissible to perjure oneself, honor would require one to refuse to +obey the law." + +"That's a pretty dangerous doctrine," reflected Mr. Tutt. "For everybody +would be free to make himself the judge of when he ought to respect the +law and when he oughtn't. We can easily imagine that the law would come +out at the small end of the horn." + +"In matters of conscience--which, I take it, is the same thing as one's +sense of honor--one has got to be one's own judge," declared Miss Wiggin +firmly. + +"The simplest way," announced Tutt, "is to take the position that the +law should always be obeyed and that the most honorable man is he who +respects it the most." + +"Yes, the safest and also the most cowardly!" retorted Miss Wiggin. +"Supposing the law required you to do something which you personally +regarded not only as morally wrong but detestable, would you do it?" + +"It wouldn't!" protested Tutt with a grimace. "The law is the perfection +of reason." + +"But I am entitled, am I not, to suppose, for purposes of argument, that +it might?" she inquired caustically. "And I say that our sense of honor +is the most precious thing we've got. It's our duty to respect our +institutions and obey the law whether we like it or not, unless it +conflicts with our conscience, in which case we ought to defy it and +take the consequences!" + +"Dear me!" mocked Tutt. "And be burned at the stake?" + +"If necessary; yes!" + +"I don't rightly get all this!" remarked Bonnie. "Me for the lee side of +the law, every time!" + +"It's highly theoretical," commented Tutt. "As usual with our +discussions." + +"Not so theoretical as you might think!" interrupted his senior, +hastening to reenforce Miss Wiggin. "Nobody can deny that to be true to +oneself is the highest principle of human conduct, and that ''tis man's +perdition to be safe when for the truth he ought to die.' That's why we +reverence the early Christian martyrs. But when it comes to choosing +between what we loosely call honor and what the law requires--" + +"But I thought the law embodied our ideas of honor!" replied Tutt. +"Didn't you say so--a few hours earlier in this conversation? As our +highest duty is to the state, it is a mere play on words, in my humble +opinion, to speak of honor as distinguished from law or the obligation +of one's oath in a court of justice. I bet I can find plenty of +authorities to that effect in the library!" + +"Of course you can," countered Miss Wiggin. "You can find an authority +on any side of any proposition you want to look for. That's why one's +own sense of honor is so much more reliable than the law. What is the +law, anyhow? It's what some judge says is the law--until he's reversed. +Do you suppose I'd surrender my own private ideas of honor to a casual +ruling from a judge who very likely hadn't the remotest idea of what I +think is honorable?" + +"You'll be jailed for contempt before you get through!" Tutt warned her. + +"The fact of the matter is," concluded Mr. Tutt, "that honor and law +haven't anything to do with one another. The courts have constantly +pointed that out from the earliest days, though judges like, when they +can, to make the two seem one and the same. Chief Baron Bowes, I +remember, said in some case in 1743, 'The court can't determine what is +honor.' No, no; the two are different, and that difference will always +make trouble. Isn't it nearly tea time?" + + * * * * * + +Miss Beekman was just stepping off the elevator on the first floor of +the Tombs the next afternoon on one of her weekly visits when she came +face to face with Mr. Tutt. + +She greeted him cordially, for she had taken rather a fancy to the +shabby old man, drawn to him, in spite of her natural aversion to all +members of the criminal bar, by the gentle refinement of his +weather-beaten face. "I hope you have had a successful day." + +The lawyer shook his head in a pseudo-melancholy manner. + +"Unfortunately, I have not," he answered whimsically. "My only client +refuses to speak to me! Perhaps you could get something out of him for +me." + +"Oh, they all talk to me readily enough!" she replied. "I fancy they +know I'm harmless. What is his name?" + +"Shane O'Connell." + +"What is his offense?" + +"He is charged with murder." + +"Oh!" + +Miss Althea recoiled. Her charitable impulses did not extend to +defendants charged with homicide. There was too much notoriety connected +with them, for one thing; there was nothing she hated so much as +notoriety. + +"Seriously," he went on with earnestness, "I wish you'd have a word with +him. It's pretty hard to have to defend a man and not to know a thing +about his side of the case. It's almost your duty, don't you think?" + +Miss Althea hesitated, and was lost. + +"Very well," she answered reluctantly, "I'll see what I can do. Perhaps +he needs some medicine or letter paper or something. I'll get an order +from the warden and go right back and see him." + +Twenty minutes later Shane O'Connell faced Miss Beekman sullenly across +the deal table of the counsel room. A ray of late sunshine fell through +the high grating of the heavily barred window upon a face quite +different from those which Miss Althea was accustomed to encounter in +these surroundings, for it showed no touch of depravity or evil habits, +and confinement had not yet deprived its cheeks of their rugged mantle +of crimson or its eyes of their bold gleam. + +He was little more than a boy, this murderer, as handsome a lad as ever +swaggered out of County Kerry. + +"An' what may it be that leads you to send for such as me, Miss +Beekman!" he demanded, glowering at her. + +She felt suddenly unnerved, startled and rather shocked at his use of +her name. Where could he have discovered it? From the keeper, probably, +she decided. All her usual composure, her quiet self-possession, her +aloof and slightly condescending sweetness--had deserted her. + +"I thought," she stammered--"I might--possibly--be of help to you." + +"'Tis too late to make up for the harm ye've done!" His coal-black eyes +reached into her shrinking body as if to tear out her heart. + +"I!" she gasped. "I--do harm! What do you mean?" + +"Did not my sister Katie work for yez?" he asked, and his words leaped +and curled about her like hissing flames. "Did you see after her or +watch her comings and goings, as she saw after you--she a mere lass of +sixteen? Arrah! No!" + +With a sensation of horror Miss Althea realized that at last she was in +a murder case in spite of herself! This lad, the brother of Katie, the +waitress whom she had discharged! How curious! And how unfortunate! His +charge was preposterous; nevertheless a faint blush stole to her cheek +and she looked away. + +"How ridiculous!" she managed to say. "It was no part of my obligation +to look after her! How could I?" + +His hawk's eyes watched her every tremor. + +"Did ye not lock her out the night of the ball when she went wid +McGurk?" + +"I--how absurd!" + +Suddenly she faltered. An indistinct accusing recollection turned her +faint--of the housekeeper having told her that one of the girls insisted +on going to a dance on an evening not hers by arrangement, and how she +had given orders that the house should be closed the same as usual at +ten o'clock for the night. If the girl couldn't abide by the rules of +the Beekman ménage she could sleep somewhere else. What of it? Supposing +she had done so? She could not be held responsible for remote, +unreasonable and discreditable consequences! + +And then by chance Shane O'Connell made use of a phrase that indirectly +saved his life, a phrase curiously like the one used on a former +occasion by Dawkins to Miss Althea: + +"Katie was a member of your household; ye might have had a bit of +thought for her!" he asserted bitterly. + +Dawkins had said: "You'd think a girl would have some consideration for +her employer, if nothing else. In a sense she is a guest in the house +and should behave herself as such." + +There was no sense in it! There was no parallel, no analogy. There was +no obligation to treat the girl as a guest, even though the girl should +have acted like one. Miss Beekman knew it. And yet there was--something! +Didn't she owe some sort of duty at any rate toward those in her +employment--those who slept under her roof? + +"'Twould have been better to have been kind to her then than to be kind +to me now!" said he with sad conviction. + +The proud Miss Althea Beekman, the dignified descendant of a long line +of ancestors, turned red. Heretofore serenely confident of her own +personal virtue and her own artificial standards of democracy, she now +found herself humiliated and chagrined before this rough young criminal. + +"You--are--quite right!" she confessed, her eyes smarting with sudden +tears. "My position is quite--quite illogical. But of course I had no +idea! Please, please let me try to help you--if I can--and Katie, +too--if it isn't too late." + +Shane O'Connell experienced contrition. After all it was not seemly that +the likes of him should be dictating to the likes of her. And he could +never abide seeing a woman--particularly a pretty woman--cry. + +"Forgive me, madam!" he begged, lowering his head. + +"You were quite justified in all you said!" she assured him. "Please +tell me everything that has happened. I have influence with the district +attorney and--in other places. No doubt I can be of assistance to you. +Of course, you can absolutely trust me!" + +Shane O'Connell, looking into her honest gray eyes, knew that he could +trust her. Slowly--brokenly--tensely, he told her how he had killed Red +McGurk, and why. + +The corridors were full of shadows when Althea Beekman put her hands on +Shane O'Connell's shoulders and bade him good night. Though she +abominated his crime and loathed him for having committed it she felt in +some way partially responsible, and she also perceived that, by the code +of the O'Connells, Shane had done what he believed to be right. He had +taken the law into his own hands and he was ready to pay the necessary +penalty. He would have done the same thing all over again. To this +extent at least he had her respect. + +She found Mr. Tutt waiting for her on the bench by the warden's office. + +"Well?" he asked with a smile, rising to greet her and tossing away his +stogy. + +"I haven't very good news for you," she answered regretfully. "He's +confessed to me--told me everything--why he shot him and where he bought +the pistol. He's a brave boy, though! It's a sad case! But what can you +do with people who believe themselves justified in doing things like +that?" + +She did not notice Detective Eddie Conroy, of the D.A.'s office, +standing behind an adjacent pillar, ostentatiously lighting a cigar; nor +see him smile as he slowly walked away. + + * * * * * + +"Talk about luck!" exulted O'Brien, the yellow dog of the district +attorney's office, an hour later to his chief. "What do you think, boss? +Eddie Conroy heard Miss Beekman telling old man Tutt over in the Tombs +that O'Connell had confessed to her! Say, how's that? Some +evidence--what?" + +"What good will that do us?" asked Peckham, glancing up with a scowl +from his desk. "She won't testify for us." + +"But she'll have to testify if we call her, won't she?" demanded his +assistant. + +The district attorney drummed on the polished surface before him. + +"We--ell, I suppose so," he admitted hesitatingly. "But you can't just +subpoena a woman like that without any warning and put her on the stand +and make her testify. It would be too rough!" + +"It's the only way to do it!" retorted O'Brien with a sly grin. "If she +knew in advance that we were thinking of calling her she'd beat it out +of town." + +"That's true," agreed his chief. "That's as far as she'd go, too, in +defying the law. But I don't much like it. Those Beekmans have a lot of +influence, and if she got sore she could make us a heap of trouble! +Besides it's sort of a scaly trick making her give up on him like that." + +O'Brien raised his brows. + +"Scaly trick! He's a murderer, isn't he? And he'll get off if we don't +call her. It's a matter of duty, as I see it." + +"All the same, my son, your suggestion has a rotten smell to it. We may +have to do it--I don't say we won't--but it's risky business!" replied +Peckham dubiously. + +"It's a good deal less risky than not doing it, so far as your candidacy +next autumn is concerned!" retorted his assistant. "We won't let her +suspect what we're goin' to do; and the last minute I'll call her to the +stand and cinch the case! She won't even know who called her! Perhaps I +can arrange with Judge Babson to call her on some other point and then +pretend to sort of stumble onto the fact of the confession and examine +her himself. That would let us out. I can smear it over somehow." + +"You'd better," commented Peckham, "unless you want a howl from the +papers! It would make quite a story if Miss Althea Beekman got on the +rampage. She could have your scalp, my boy, if she wanted it!" + +"And McGurk could have yours!" retorted O'Brien with the impudence born +of knowledge. + +The prosecution of Shane O'Connell, which otherwise might have slowly +languished and languishing died, took on new life owing to the evidence +thus innocently delivered into the hands of the district attorney; in +fact it became a _cause célèbre_. The essential elements to convict were +now all there--the _corpus delicti_, evidence of threats on the part of +the defendant, of motive, of opportunity, and--his confession. The law +which provides that the statement of an accused "is not sufficient to +warrant his conviction without additional proof that the crime charged +has been committed" would be abundantly satisfied--though without his +confession there would have been no proof whatever that the crime +charged had been committed by him. + +Thus, without her knowing it, Miss Beekman was an essential witness and, +in fact, the pivot upon which the entire case turned. + +The day of the great sporting event came. With it arrived in full +panoply the McGurks, their relatives and followers. All Cherry Hill +seemed to have packed itself into Part I of the Supreme Court. There was +an atmosphere somehow suggestive of the races or a prize fight. But it +was a sporting event which savored of a sure thing--really more like a +hanging. They were there to make holiday over the law's revenge for the +killing of the darling of the Pearl Button Kids. Peckham personally +assured McGurk that everything was copper-fastened. + +"He's halfway up the river already!" he said jocularly. + +And McGurk, swelling with importance and emotion, pulled a couple of +cigars from his pocket and the two smoked the pipe of peace. + +But the reader is not particularly concerned with the progress of the +trial, for he has already attended many. It is enough to say that a jury +with undershot jaws, who had proved by previous experience their +indifference to capital punishment and to all human sympathy, were +finally selected and that the witnesses were duly called, and testified +to the usual facts, while the Pearl Button Kids and the rest, spitting +surreptitiously beneath the benches, eagerly drank in every word. There +was nothing for Mr. Tutt to do; nothing for him to deny. The case built +itself up, brick by brick. And Shane O'Connell sat there unemotionally, +hardly listening. There was nothing in the evidence to reflect in any +way upon the honor of the O'Connells in general or in particular. He had +done that which that honor demanded and he was ready to pay the +penalty--if the law could get him. He assumed that it would get him. So +did the Tutts. + +But when toward the end of the third day nothing had yet been brought +forward to connect him with the crime Tutt leaned over and whispered to +Mr. Tutt, "D'ye know, I'm beginning to have a hunch there isn't any +case!" + +Mr. Tutt made an imperceptible gesture of assent. + +"Looks that way," he answered out of the corner of his mouth. "Probably +they'll spring the connecting evidence at the end and give us the _coup +de grâce_." + +At that moment a police witness was released from the stand and O'Brien +stepped to the bench and whispered something to the judge, who glanced +at the clock and nodded. It was twenty minutes of four, and the jury +were already getting restless, for the trial had developed into a +humdrum, cut-and-dried affair. + +Miss Beekman sitting far back in the rear of the court room suddenly +heard O'Brien call her name, and a quiver of apprehension passed through +her body. She had never testified in any legal proceeding, and the idea +of getting up before such a crowd of people and answering questions +filled her with dismay. It was so public! Still, if it was going to help +O'Connell-- + +"Althea Beekman," bellowed Cap. Phelan, "to the witness chair!" + +Althea Beekman! The gentle lady felt as if she had been rudely stripped +of all her protective clothing. Althea! Did not the law do her the +courtesy of calling her even "Miss"? Nerving herself to the performance +of her duty she falteringly made her way between the crowded benches, +past the reporters' table, and round back of the jury box. The judge, +apparently a pleasant-faced, rather elderly man, bowed gravely to her, +indicated where she should sit and administered the oath to her himself, +subtly dwelling upon the phrase "the whole truth," and raising his eyes +heavenward as he solemnly pronounced the words "so help you God!" + +"I do!" declared Miss Beekman primly but decidedly. + +Behind her upon the court-room wall towered in its flowing draperies the +majestic figure of the Goddess of the Law, blindfolded and holding aloft +the scales of justice. Beside her sat in the silken robes of his sacred +office a judge who cleverly administered that law to advance his own +interests and those of his political associates. In front of her, +treacherously smiling, stood the cynical, bullet-headed O'Brien. At a +great distance Mr. Tutt leaned on his elbows at a table beside Shane +O'Connell. To them she directed her gaze and faintly smiled. + +"Miss Beekman," began O'Brien as courteously as he knew how, "you +reside, do you not, at Number 1000 Fifth Avenue, in this city and +county?" + +"I do," she answered with resolution. + +"Your family have always lived in New York, have they not?" + +"Since 1630," she replied deprecatingly and with more confidence. + +"You are prominent in various philanthropic, religious and civic +activities?" + +"Not prominent; interested," she corrected him. + +"And you make a practise of visiting prisoners in the Tombs?" + +She hesitated. What could this be leading to? + +"Occasionally," she admitted. + +"Do you know this defendant, Shane O'Connell?" + +"Yes." + +"Did you see him on the twenty-third day of last month?" + +"I think so--if that was the day." + +"What day do you refer to?" + +"The day I had the talk with him." + +"Oh, you had a talk with him?" + +"Yes." + +"Where did you have that talk with him?" + +"In the counsel room of the Tombs." + +O'Brien paused. Even his miserable soul revolted at what he was about to +do. + +"What did he say?" he asked, nervously looking away. + +Something in his hangdog look warned Miss Beekman that she was being +betrayed, but before she could answer Mr. Tutt was on his feet. + +"One moment!" he cried. "May I ask a preliminary question?" + +The court signified acquiescence. + +"Was that conversation which you had with the defendant a confidential +one?" + +"I object to the question!" snapped O'Brien. "The law recognizes no +confidential communications as privileged except those made to a priest, +a physician or an attorney. The witness is none of these. The question +is immaterial and irrelevant." + +"That is the law," announced the judge, "but under all the circumstances +I will permit the witness to answer." + +Miss Beekman paused. + +"Why," she began, "of course it was confidential, Mr. Tutt. O'Connell +wouldn't have told me anything if he had supposed for one moment I was +going to repeat what he said. Besides, I suggested that I might be able +to help him. Yes, certainly our talk was confidential." + +"I am sorry," gloated O'Brien, "but I shall have to ask you what it +was." + +"That is not a question," said Mr. Tutt calmly. + +"What did the defendant say to you in the counsel room of the Tombs on +the twenty-third of last month?" cautiously revised O'Brien. + +"I object!" thundered Mr. Tutt, his form towering until seemingly it +matched that of the blind goddess in height. "I object to the answer as +requiring a breach of confidence which the law could not tolerate." + +Judge Babson turned politely to Miss Beekman. + +"I regret very much that I shall be obliged to ask you to state what +the defendant said to you. You will recall that you yourself volunteered +the information that you had had the talk in question. Otherwise"--he +coughed and put up his hand--"we might possibly never have learned of +it. A defendant cannot deprive the people of the right to prove what he +may have divulged respecting his offense merely by claiming that it was +in confidence. Public policy could never allow that. It may be +unpleasant for you to answer the question but I must ask you to do so." + +"But," she protested, "you certainly cannot expect me to betray a +confidence! I asked O'Connell to tell me what he had done so that I +could help him--and he trusted me!" + +"But you are not responsible for the law! He took his chance!" +admonished the judge. + +Slowly Miss Althea's indignation rose as she perceived the dastardly +trick which O'Brien had played upon her. Already she suspected that the +judge was only masquerading in the clothing of a gentleman. With a white +face she turned to Mr. Tutt. + +"Does the law require me to answer, Mr. Tutt?" she inquired. + +"Do not ask questions--answer them," ordered Babson brusquely, feeling +the change in her manner. "You are a witness for the people--not the +defendant." + +"I am not a witness against O'Connell!" she declared. "This +man"--indicating O'Brien scornfully--"has in some way found out that +I--Oh, surely the law doesn't demand anything so base as that!" + +There was silence. The wheels of justice hung on a dead center. + +"Answer the question," remarked His Honor tartly. + +All Miss Beekman's long line of ancestors turned in their graves. In her +Beekman blood the chief justice, the ambassador, the great editor, the +signer of the Declaration of Independence, stirred, awoke, rubbed their +eyes and sternly reared themselves. And that blood--blue though it was +instead of scarlet like the O'Connells'--boiled in her veins and burned +through the delicate tissue of her cheeks. + +"My conscience will not permit me to betray a confidence!" she cried +angrily. + +"I direct you to answer!" ordered the judge. + +"I object to the court's threatening the witness!" interjected Mr. Tutt. +"I wish it to appear upon the record that the manner of the court is +most unjudicial and damaging to the defendant." + +"Take your seat, sir!" barked Babson, his features swelling with anger. +"Your language is contemptuous!" + +The jury were leaning forward intently. Trained militiamen of the +gibbet, they nevertheless admired this little woman's fearlessness and +the old lawyer's pugnacity. On the rear wall the yellow face of the old +self-regulating clock, that had gayly ticked so many men into the +electric chair, leered shamelessly across at the blind goddess. + +"Answer the question, madam! If, as you claim, you are a patriotic +citizen of this commonwealth, having due respect for its institutions +and for the statutes, you will not set up your own ideas of what the law +ought to be in defiance of the law as it stands. I order you to answer! +If you do not I shall be obliged to take steps to compel you to do so." + +In the dead silence that followed, the stones in the edifice of Miss +Beekman's inherited complacency, with each beat of the clock, fell one +by one to the ground until it was entirely demolished. Vainly she +struggled to test her conscience by her loyalty to her country's laws. +But the task was beyond her. + +Tightly compressing her lips she sat silent in the chair, while the +delighted reporters scribbled furious messages to their city editors +that Miss Althea Beekman, one of the Four Hundred, was defying Judge +Babson, and to rush up a camera man right off in a taxi, and to look her +up in the morgue for a front-page story. O'Brien glanced uneasily at +Babson. Possible defiance on the part of this usually unassuming lady +had not entered into his calculations. The judge took a new tack. + +"You probably do not fully understand the situation in which you are +placed," he explained. "You are not responsible for the law. Neither are +you responsible in any way for the consequences to this defendant, +whatever they may be. The matter is entirely out of your hands. You are +compelled to do as the court orders. As a law-abiding citizen you have +no choice in the matter." + +Miss Althea's modest intellect reeled, but she stood her ground, the +ghost of the Signer at her elbow. + +"I am sorry," she replied, "but my own self-respect will not allow me to +answer." + +"In that case," declared Babson, playing his trump card, "it will be my +unpleasant duty to commit you for contempt." + +There was a bustle of excitement about the reporters' table. Here was a +story! + +"Very well," answered Miss Beekman proudly. "Do as you see fit, and as +your own duty and conscience demand." + +The judge could not conceal his annoyance. The last thing in the world +that he wished to do was to send Miss Althea to jail. But having +threatened her he must carry out his threat or forever lose face. + +"I will give the witness until tomorrow morning at half after ten +o'clock to make up her mind what she will do," he announced after a +hurried conference with O'Brien. "Adjourn court!" + +Miss Beekman did not go to bed at all that night. Until a late hour she +conferred in the secrecy of her Fifth Avenue library with her +gray-haired solicitor, who, in some mysterious way, merely over the +telephone, managed to induce the newspapers to omit any reference to his +client's contemptuous conduct in their morning editions. + +"There's no way out of it, my dear," he said finally as he took his +leave--he was her father's cousin and very fond of her--"this judge has +the power to send you to jail if he wants to--and dares to! It's an even +chance whether he will dare to or not. It depends on whether he prefers +to stand well with the McGurks or with the general public. Of course I +respect your attitude, but really I think you are a little quixotic. +Points of honor are too ephemeral to be debated in courts of justice. To +do so would be to open the door to all kinds of abuses. Dishonest +witnesses would constantly avail themselves of the opportunity to avoid +giving evidence." + +"Dishonest witnesses would probably lie in the first place!" she +quavered. + +"True! I quite overlooked that!" he smiled, gazing down at her in an +avuncular manner. "But to-day the question isn't open. It is settled, +whether we like it or not. No pledge of privacy, no oath of secrecy--can +avail against demand in a court of justice. Even confessions obtained by +fraud are admissible--though we might wish otherwise." + +Miss Beekman shrugged her shoulders. + +"Nothing you have said seems to me to alter the situation." + +"Very well," he replied. "I guess that settles it. Knowing you and the +Beekman breed! There's one thing I must say," he added as he stood in +the doorway after bidding her good night--"that old fellow Tutt has +behaved pretty well, leaving you entirely alone this way. I always had +an idea he was a sort of shyster. Most attorneys of that class would +have been sitting on your doorstep all the evening trying to persuade +you to stick to your resolution not to give their client away, and to do +the square thing. But he's done nothing of the sort. Rather decent on +the whole!" + +"Perhaps he recognizes a woman of honor when he sees one!" she retorted. + +"Honor!" he muttered as he closed the door. "What crimes are sometimes +committed in thy name!" + +But on the steps he stopped and looked back affectionately at the +library window. + +"After all, Althea's a good sport!" he remarked to himself. + + * * * * * + +At or about the same moment a quite dissimilar conference was being held +between Judge Babson and Assistant District Attorney O'Brien in the +café of the Passamaquoddy Club. + +"She'll cave!" declared O'Brien, draining his glass. "Holy Mike! No +woman like her is going to stay in jail! Besides, if you don't commit +her everybody will say that you were scared to--yielded to influence. +You're in the right and it will be a big card for you to show that you +aren't afraid of anybody!" + +Babson pulled nervously on his cigar. + +"Maybe that's so," he said, "but I don't much fancy an appellate court +sustaining me on the law and at the same time roasting hell out of me as +a man!" + +"Oh, they won't do that!" protested O'Brien. "How could they? All +they're interested in is the law!" + +"I've known those fellows to do queer things sometimes," answered the +learned judge. "And the Beekmans are pretty powerful people." + +"Well, so are the McGurks!" warned O'Brien. + + * * * * * + +"Now, Miss Beekman," said Judge Babson most genially the next morning, +after that lady had taken her seat in the witness chair and the jury had +answered to their names, "I hope you feel differently to-day about +giving your testimony. Don't you think that after all it would be more +fitting if you answered the question?" + +Miss Althea firmly compressed her lips. + +"At least let me read you some of the law on the subject," continued His +Honor patiently. "Originally many people, like yourself, had the +mistaken idea that what they called their honor should be allowed to +intervene between them and their duty. And even the courts sometimes so +held. But that was long ago--in the sixteenth and seventeenth +centuries. To-day the law wisely recognizes no such thing. Let me read +you what Baron Hotham said, in Hill's Trial in 1777, respecting the +testimony of a witness who very properly told the court what the accused +had said to him. It is very clearly put: + +"'The defendant certainly thought him his friend, and he'--the +defendant--'therefore did disclose all this to him. Gentlemen, one has +only to say further that if this point of honor was to be so sacred as +that a man who comes by knowledge of this sort from an offender was not +to be at liberty to disclose it the most atrocious criminals would every +day escape punishment; and therefore it is that the wisdom of the law +knows nothing of that point of honor.'" + +Miss Beekman listened politely. + +"I am sorry," she replied with dignity. "I shall not change my mind. I +refuse to answer the question, and--and you can do whatever you like +with me." + +"Do you understand that you are in contempt of this court? Do you intend +to show contempt for this court?" he demanded wrathfully. + +"I do," answered Miss Althea. "I have contempt for this court." + +A titter danced along the benches and some fool in the back of the room +clapped his hands. + +Judge Babson's face grew hard and his eyes narrowed to steel points. + +"The witness stands committed for contempt," he announced bitingly. "I +direct that she be confined in the city prison for thirty days and pay a +fine of two hundred and fifty dollars. Madam, you will go with the +officer." + +Miss Althea rose while the ghost of the Signer encircled her with his +arm. + +Mr. Tutt was already upon his feet. He knew that the ghost of the Signer +was there. + +"May I ask the court if the witness, having been committed for the +contemptuous conduct of which she is obviously guilty, may remain in +your chambers until adjournment, in order that she may arrange her +private affairs?" + +"I will grant her that privilege," agreed Judge Babson with internal +relief. "The request is quite reasonable. Captain Phelan, you may take +the witness into my robing room and keep her there for the present." + +With her small head erect, her narrow shoulders thrown back, and with a +resolute step as befitted the descendant of a long line of ancestors +Miss Althea passed behind the jury box and disappeared. + +The twelve looked at one another dubiously. Both Babson and O'Brien +seemed nervous and undecided. + +"Well, call your next witness," remarked the judge finally. + +"But I haven't any more witnesses!" growled O'Brien. "And you know it +almighty well, you idiot!" he muttered under his breath. + +"If that is the people's case I move for the defendant's immediate +discharge," cried Mr. Tutt, jumping to his feet. "There is no evidence +connecting him with the crime." + +McGurk, furious, sprang toward the bar. + +"See here! Wait a minute! Hold on, judge! I can get a hundred +witnesses--" + +"Sit down!" shouted one of the officers, thrusting him back. "Keep +quiet!" + +Babson looked at O'Brien and elevated his forehead. Then as O'Brien +gave a shrug the judge turned to the expectant jury and said in +apologetic tones: + +"Gentlemen of the jury, where the people have failed to prove the +defendant's guilt beyond a reasonable doubt it is the duty of the court +to direct a verdict. In this case, though by inference the testimony +points strongly toward the prisoner, there is no direct proof against +him and I am accordingly constrained--much as I regret it--to instruct +you to return a verdict of not guilty." + +In the confusion which followed the rendition of the verdict a messenger +entered breathlessly and forcing his way through the crowd delivered a +folded paper to Mr. Tutt, who immediately rose and handed it to the +clerk; and that official, having hurriedly perused it and pursed his +lips in surprise, passed it over the top of the bench to the judge. + +"What's this?" demanded Babson. "Don't bother me now with trifles!" + +"But it's a writ of habeas corpus, Your Honor, signed by Judge Winthrop, +requiring the warden to produce Miss Beekman in Part I of the Supreme +Court, and returnable forthwith," whispered Mr. McGuire in an +awe-stricken voice. "I can't disregard that, you know!" + +"What!" cried Babson. "How on earth could he have issued a writ in this +space of time? The thing's impossible!" + +"If Your Honor please," urbanely explained Mr. Tutt, "as--having known +Miss Beekman's father--I anticipated that the witness would pursue the +course of conduct which, in fact, she has, I prepared the necessary +papers early this morning and as soon as you ordered her into custody my +partner, who was waiting in Judge Winthrop's chambers, presented them to +His Honor, secured his signature and brought the writ here in a +taxicab." + +Nobody seemed to be any longer interested in O'Connell. The reporters +had left their places and pushed their way into the inclosure before the +dais. In the rear of the room O'Brien was vainly engaged in trying to +placate the Pearl Button Kids, who were loudly swearing vengeance upon +both him and Peckham. It was a scene as nearly turbulent as the old +yellow clock had ever witnessed. Even the court officers abandoned any +effort to maintain order and joined the excited group about Mr. Tutt +before the bench. + +"Does Your Honor desire that this matter be argued before the Supreme +Court?" inquired Mr. Tutt suavely. "If so I will ask that the prisoner +be paroled in my custody. Judge Winthrop is waiting." + +Babson had turned pale. Facing a dozen newspapermen, pencils in hand, he +quailed. To hell with "face." Why, if he went on any longer with the +farce the papers would roast the life out of him. With an apology for a +smile that was, in fact, a ghastly grin, he addressed himself to the +waiting group of jurymen, lawyers and reporters. + +"Of course, gentlemen," he said, "I never had any real intention of +dealing harshly with Miss Beekman. Undoubtedly she acted quite honestly +and according to her best lights. She is a very estimable member of +society. It will be unnecessary, Mr. Tutt, for you to argue the writ +before Judge Winthrop. The relator, Althea Beekman, is discharged." + +"Thank you, Your Honor!" returned Mr. Tutt, bowing profoundly, and +lowering an eyelid in the direction of the gentlemen of the press. "You +are indeed a wise and upright judge!" + +The wise and upright judge rose grandly and gathered his robes about the +judicial legs. + +"Good morning, gentlemen," he remarked from his altitude to the +reporters. + +"Good morning, judge," they replied in chorus. "May we say anything +about the writ?" + +Judge Babson paused momentarily in his flight. + +"Oh! Perhaps you might as well let the whole thing go," he answered +carelessly. "On the whole I think it better that you should." + +As they fought their way out of the doorway Charley Still, of the _Sun_, +grinned at "Deacon" Terry, of the _Tribune_, and jocosely inquired: +"Say, Deac., did you ever think why one calls a judge 'Your Honor'?" + +The Deacon momentarily removed his elbow from the abdomen of the +gentleman beside him and replied sincerely though breathlessly, "No! You +can search me!" + +And "Cap." Phelan, who happened to be setting his watch at just that +instant, affirms that he will make affidavit that the old yellow clock +winked across the room at the Goddess of Justice, and that beneath her +bandages she unmistakably smiled. + + + + +By Advice of Counsel + + + "Kotow! Kotow! To the great Yen-How, + And wish him the longest of lives! + With his one-little, two-little, three-little, four-little, + Five-little, six-little wives!" + +"The fact is I've been arrested for bigamy," said Mr. Higgleby in a +pained and slightly resentful manner. He was an ample flabby person, +built like an isosceles triangle with a smallish head for the apex, +slightly expanded in the gangliar region just above the nape of the +neck--medical students and phrenologists please note--and habitually +wearing an expression of helpless pathos. Instinctively you felt that +you wanted to do something for Mr. Higgleby--to mother him, maybe. + +"Then you should see my partner, Mr. Tutt," said Mr. Tutt severely. +"He's the matrimonial specialist." + +"I want to see Mr. Tutt, the celebrated divorce lawyer," explained Mr. +Higgleby. + +"You mean my partner, Mr. Tutt," said Mr. Tutt. "Willie, show the +gentleman in to Mr. Tutt." + +"Thank you, sir," said Mr. Higgleby, and followed Willie. + +"Is this Mr. Higgleby?" chirped Tutt as Higgleby entered the adjoining +office. "Delighted to see you, sir! What can we--I--do for you?" + +"The fact is, I've been arrested for bigamy," repeated Mr. Higgleby. + +Now the Tutt system--demonstrated effective by years of experience--for +putting a client in a properly grateful and hence liberal frame of mind +was, like the method of some physicians, first to scare said client, or +patient, out of his seven senses; second, to admit reluctantly, upon +reflection, that in view of the fact that he had wisely come to Tutt & +Tutt there might still be some hope for him; and third, to exculpate him +with such a flourish of congratulation upon his escape that he was glad +to pay the modest little fee of which he was then and there relieved. +Tutt & Tutt had only two classes of clients: those who paid as they came +in, and those who paid as they went out. + +Therefore upon hearing Mr. Higgleby's announcement as to the nature of +his trouble Tutt registered horror. + +"What? What did you say?" he demanded. + +"I said," repeated Mr. Higgleby with a shade of annoyance, "'the fact +is, I've been arrested for bigamy.' I don't see any reason for making +such a touse about it," he added plaintively. + +"Who's making a--a--a touse about it?" inquired Tutt, perceiving that he +had taken the wrong tack. "I'm not. I was just a little surprised at a +man of your genteel appearance--" + +"Oh, rot!" expostulated Mr. Higgleby weakly. "You're just like all of +'em! I suppose you were going to say I didn't look like a bigamist--and +all that. Well, cut it! Let's start fair. I _am_ a bigamist!" + +Tutt regarded him with obvious curiosity. "You don't say!" he +ejaculated, much as if he wished to add: "How does it feel?" + +"I do say!" retorted Mr. Higgleby. + +"Well," exclaimed Tutt cheerily, passing into the second phase of the +Tutt-Tutt treatment, "after all, bigamy isn't so bad! It's only five +years at the worst. Generally it's not more than six months." + +"Get wise!" snapped Mr. Higgleby. "I didn't come here to have you throw +cold chills into me. I came here to find out how to beat it!" + +"Why, certainly! Of course!" protested Tutt hastily. + +"I was--" + +"And I expect you to get me off!" + +"Yes, yes!" murmured Tutt, his usual style completely cramped. + +"No matter what!" + +"Yes," faintly tuttered Tutt. + +"Well," continued Higgleby, taking out a cigar that in shape and +looseness of wrapping closely resembled its owner, "now that's settled, +let's get down to brass tacks. Here's a copy of the indictment." + +He produced a document bearing a large gold seal. + +"Those robbers made me pay a dollar-sixty for certification!" he +remarked peevishly, indicating the ornament. "What good is certification +to me? As if I wanted to pay to make sure I was accused in exact +language! Anybody can draw an indictment for bigamy!" + + COURT OF GENERAL SESSIONS OF THE PEACE IN AND FOR THE COUNTY OF NEW + YORK + + The People of the State of New York against + + THEOPHILUS HIGGLEBY + + The Grand Jury of the County of New York, by this indictment, + accuse Theophilus Higgleby of the crime of bigamy, committed as + follows: + + The said Theophilus Higgleby, late of the borough of Manhattan of + the city of New York in the county of New York, aforesaid, on the + eleventh day of May in the year of our Lord one thousand nine + hundred and nineteen, at Cook County and the city of Chicago in the + state of Illinois, did marry one Tomascene Startup, and her, the + said Tomascene Startup, did then and there have for his wife; + + And afterward, to wit, on the seventeenth day of December in the + year of our Lord one thousand nine hundred and nineteen, at the + borough of Manhattan of the city of New York in the county of New + York aforesaid, did feloniously marry and take as his wife one + Alvina Woodcock, and to the said Alvina Woodcock was then and there + married, the said Tomascene Startup being then and there living and + in full life, against the form of the statute in such case made and + provided, and against the peace of the people of the state of New + York and their dignity. + + JEREMIAH PECKHAM, + District Attorney. + +Such was the precise accusation against the isosceles-triangular client, +who now sat so limply and disjointedly on the opposite side of Tutt's +desk with a certain peculiar air of assurance all his own, as if, though +surprised and somewhat annoyed at the grand jury's interference with his +private affairs, he was nevertheless--being captain of his own soul--not +particularly disturbed about the matter. + +"And--er--did you marry these two ladies?" inquired Tutt +apologetically. + +"Sure!" responded Higgleby without hesitation. + +"May I ask why?" + +"Why not?" returned Higgleby. "I'm a traveling man." + +"Look here," suddenly demanded Tutt. "Were you ever a lawyer?" + +"Sure I was!" responded Mr. Higgleby. "I was a member of the bar of +Osceola County, Florida." + +"You don't say!" gasped Tutt. + +"And what, may I ask, are you now?" + +"Now I'm a bigamist!" answered Mr. Higgleby. + +We forget precisely who it was that so observantly said to another, +"Much learning doth make thee mad." At any rate the point to be noted is +that overindulgence in erudition has always been known to have an +unfortunate effect upon the intellectual faculty. Too much wine--though +it must have required an inordinate quantity in certain mendacious +periods--was regarded as provocative of truth; and too many books as +clearly put bats in a man's belfry. The explanation is of course simple +enough. If one overweights the head the whole structure is apt to become +unbalanced. This is the reason why we hold scholars in such light +esteem. They are an unbalanced lot. And after all, why should they get +paid more than half the wage of plumbers or locomotive firemen? What is +easier than sitting before a comfortable steam radiator and reading an +etymological dictionary or the Laws of Hammurabi? They toil not even if +their heads spin. Only in Germany has the pedagogue ever received full +meed of gold and of honor--and look at Germany! + +Pedants have never been much considered by men of action. They never +will be. Experience is the only teacher, which, in the language of Amos +Eno, who left two millions to the Institute of Mechanics and Tradesmen, +is "worth a damn." We Americans abhor any affectation of learning; hence +our weakness for slang. I should apologize for the word "weakness." On +the contrary it is a token of our virile independence, our scorn for the +delicatessen of education, mere dilettanteism. And this has its +practical side, for if we don't know how to pronounce the words +"evanescent persiflage" we can call it "bunk" or "rot." We suspect all +college graduates. We don't want them in our business. They slink +through our lives like pickpockets fearful of detection. + +What has all this to do with anything? It has to do, dear reader, with +Mr. Caput Magnus, the assistant of the district attorney of the county +of New York, whose duty it was to present the evidence in all criminal +cases to the grand jury and make ready the instruments of torture known +as bills of indictment for that august body's action thereon. + +For by all the lights of the Five Points, Chinatown--Mulberry, Canal, +Franklin, Lafayette and Centre streets--Pontin's Restaurant, Moe Levy's +One Price Tailoring Establishment, and even by those of the glorious +days of Howe & Hummel, by the Nine Gods of Law--and more--Caput Magnus +was a learned savant. He and he alone of all the members of the bar on +the pay roll of the prosecutor's office, housed in their smoke-hung +cubicles in the Criminal Courts Building, knew how to draw up those +complicated and awful things with their barbed-wire entanglements of +"saids," "then and there beings," "with intents," "dids," "to wits," and +"aforesaids" in all the verbal chaos with which the law requires those +accused of crime to be "simply, clearly and directly" informed of the +nature of the offense charged against them, in order that they may know +what to do about it and prepare their defense. + +And while we are on it--and in order that the reader may be fully +instructed and qualified to pursue Tutt & Tutt through their various +adventures hereafter--we may as well add that herein lies one of the +pitfalls of crime; for the simple-minded burglar or embezzler may +blithely make way with a silver service or bundle of bank notes only to +find himself floundering, horse, foot and dragoons, in a quagmire of +phraseology from which he cannot escape, wriggle as he will. Many such a +one has thrown up his hands--and with them silver service, bank notes +and all--in horror at what the grand jury has alleged against him. + +Indeed there is a well-authenticated tradition that a certain gentleman +of color who had inadvertently acquired some poultry belonging to +another, when brought to the bar and informed that he theretofore, to +wit, in a specified year of our Lord in the night time of the day +aforesaid, the outhouse of one Jones then and there situate, +feloniously, burglariously did break into and enter with intent to +commit a crime therein, to wit, the goods, chattels and personal +property of the said Jones then and there being found, then and there +feloniously and burglariously by force of arms and against the peace of +the people to seize, appropriate and carry away, raised his voice in +anguish and cried: + +"Fo de Lawd sake, jedge, Ah didn't do none ob dem tings--all Ah done was +to take a couple ob chickens!" + +Thus to annihilate a man by pad and pencil is indeed an art worthy of +admiration. The pen of an indictment clerk is oft mightier than the +sword of a Lionheart, the brain behind the subtle quill far defter than +said swordsman's skill. Moreover, the ingenuity necessary to draft one +of these documents is not confined to its mere successful composition, +for having achieved the miraculous feat of alleging in fourteen ways +without punctuation that the defendant did something, and with a final +fanfare of "saids" and "to wits" inserted his verb where no one will +ever find it, the indicter must then be able to unwind himself, rolling +in and out among the "dids" and "thens" and "theres" until he is once +more safely upon the terra firma of foolscap at the head of the first +page. + +Mr. Caput Magnus could do it--with the aid of a volume of printed forms +devised in the days of Jeremy Bentham. In fact, like a camel who smells +water afar off, he could in a desert of verbal sand unerringly find an +oasis of meaning. Therefore was Caput Magnus held in high honor among +the pack of human hounds who bayed at the call of Huntsman Peckham's +horn. Others might lose the scent of what it was all about in the +tropical jungle of an indictment eleven pages long, but not he. Like the +old dog in Masefield's "Reynard the Fox," Mr. Magnus would work through +ditches full of legal slime, nose through thorn thickets of confusion, +dash through copses and spinneys of words and phrases, until he snapped +close at the heels of intelligibility. The Honorable Peckham couldn't +have drawn an indictment to save his legal life. Neither could any of +the rest. Neither could Caput without his book of ancient forms--though +he didn't let anybody know it. + +Shrouded in mystery on a salary of five thousand dollars a year, Caput +sat in the shrine of his inner office producing literature of a clarity +equaled only by that of George Meredith or Mr. Henry James. He was the +Great Accuser. He could call a man a thief in more different ways than +any deputy assistant district attorney known to memory--with the aid of +his little book. He could lasso and throw any galloping criminal, +however fierce, with a gracefully uncoiling rope of deadly adjectives. +On all of which he properly prided himself until he became unendurable +to his fellows and insufferable to Peckham, who would have cheerfully +fired him months gone by had he had a reason or had there been any other +legal esoteric to take his place. + +Yet pride goeth before a fall. And I am glad of it, for Magnus was a +conceited little ass. This yarn is about the fall of Caput Magnus almost +as much as it is about the uxorious Higgleby, though the two are +inextricably entwined together. + + * * * * * + +"Mr. Tutt," remarked Tutt after Higgleby's departure, "that new client +of ours is certainly _sui generis_." + +"That's no crime," smiled the senior partner, reaching for the +malt-extract bottle. + +"His knowledge of matrimony and the laws governing the domestic +relations is certainly exhaustive--not to say exhausting. I look like a +piker beside him." + +"For which," replied Mr. Tutt, "you may well be thankful." + +"I am," replied Tutt devoutly. "But you could put what I know about +bigamy in that malt-extract bottle." + +"I prefer the present contents!" retorted Mr. Tutt. "Bigamy is a +fascinating crime, involving as it does such complicated subjects as the +history of the institution of marriage, the ecclesiastical or canonical +law governing divorce and annulment, the interesting doctrines of +affinity and consanguinity, suits for alienation of affection and +criminal conversation, the conflict of laws, the White Slave Act--" + +"Interstate commerce, so to speak?" suggested Tutt mischievously. + +"Condonation, collusion and connivance," continued Mr. Tutt, brushing +him aside, "reinstitution of conjugal rights, the law of feme sole, The +Married Woman's Act, separation _a mensa et thoro_, abandonment, +jurisdiction, alimony, custody of children, precontract--" + +"Help! You're breaking my heart!" cried Tutt. "No little lawyer could +know all about such things. It would take a big lawyer." + +"Not at all! Not at all!" soothed Mr. Tutt, sipping his eleven-o'clock +nourishment and fingering for a stogy. "When it comes to divorce one +lawyer knows as much about the law as another. Not even the Supreme +Court is able to tell whether a man and woman are really married or not +without calling in outside assistance." + +"Well, who can?" asked Tutt anxiously. + +"Nobody," replied his partner with gravity, biting off the end of a +last year's stogy salvaged from the bottom of the letter basket. "Once a +man's married his troubles not only begin but never end." + +"By the way," said Tutt, "speaking of this sort of thing, I see that +that Frenchman whom we referred to our Paris correspondent has just been +granted a divorce from his American wife." + +"You mean the French diplomat who married the Yankee vaudeville artist +in China?" + +"Yes," answered Tutt. "You recall they met in Shanghai and took a flying +trip to Mongolia, where they were married by a Belgian missionary. The +court held that the marriage was invalid, as the French statutes require +a native of that country marrying abroad to have the ceremony performed +either before a French diplomatic official or 'according to the usages +of the country in which the marriage is performed.'" + +"Wasn't the Belgian missionary a diplomatic official?" asked Mr. Tutt. + +"Evidently not sufficiently so," replied his partner. "Anyhow, in +Mongolia there are only two methods sanctified by tradition by which a +man may secure a wife--capture or purchase." + +"Well, didn't our client capture the actress?" + +"Only with her consent--which I assume would be collusion under the +French law," said Tutt. "And he certainly didn't buy her--though he +might have. It appears that in that happy land a wife costs from five +camels up; five camels for a flapper and so on up to thirty or forty +camels for an old widow, who invariably brings the highest quotation." + +"In Mongolia age evidently ripens and mellows women as it does wine in +other countries," reflected Mr. Tutt. + +"But you can buy some women for five pounds of rice," added Tutt. "Queer +country, isn't it?" + +"Not at all!" declared his senior. "Even in America every man pays and +pays and pays for his wife--through the nose!" + +Tutt grinned appreciatively. + +"However that may be," he ventured, "a man who enters into a marriage +contract--" + +"Marriage isn't a contract," interrupted Mr. Tutt. + +"What is it?" + +"It's a status--something entirely different--like slavery." + +"It's like slavery all right!" agreed Tutt. "But we always speak of a +contract of marriage, don't we?" + +"Quite inaccurately. The only contract in a marriage is what we commonly +refer to as the engagement; that is a real contract and is governed by +the laws of contracts. The marriage itself is an entirely different +thing. When a marriage is performed and consummated the parties have +changed their condition; they bear an entirely new relationship to +society, which, as represented by the state, acquires an interest in the +transaction, and all you can say about it is that whereas they were both +single before, they are married now, and that in the eyes of the law +their status has been altered to one as distinct and clearly defined as +that which exists between father and son, guardian and ward or master +and slave." + +"Hear! Hear!" remarked Tutt. "But I don't see why it isn't a +contract--or very much like one," he persisted. + +"It is like one in that its validity, like that of civil contracts +generally, is determined by the law governing the place where it was +entered into," went on Mr. Tutt oracularly, as if addressing the court +of appeals. "But it differs from a contract for the reason that the +parties are not free to fix its terms, which are determined for them by +the state; that they cannot modify or rescind it by mutual consent; that +the nature of the marriage status changes with the state and the laws of +the state where the parties happen to be domiciled; and that damages +cannot be recovered for a breach of marital duty." + +"Do you know I never thought of that before," admitted Tutt. "But it's +perfectly true." + +"It is to the interest of society to have the relationship orderly and +permanent," continued his partner. "That is why the state is so alert +with regard to divorce proceedings and vigilant to prevent fraud or +collusion. You may say that the state is always a party to every +matrimonial action--even if it is not actually interpleaded--and that +such proceedings are triangular and minus many of the characteristics of +the ordinary civil suit." + +"I suppose another reason for that is that originally marriage and +divorce were entirely in the hands of the church, weren't they?" +ruminated Tutt. + +"Exactly. From very early days in England the church claimed +jurisdiction of all matters pertaining to marriage, on the ground that +it was a sacrament." + +"Did the ecclesiastical courts take the position that all marriages were +made in heaven?" + +Mr. Tutt shrugged his shoulders. + +"'Once married, always married,' was their doctrine." + +"Then how did people who were unhappily married get rid of one another?" + +"They didn't--if the courts ruled that they had actually been +married--but that left a loophole. When was a marriage not a marriage? +Answer: When the parties were closely enough related by blood or +marriage, or either of them was mentally incapable, under age, victims +of duress, fraud, mistake, previously contracted for, or--already +married." + +"Ah!" breathed Tutt, thinking of Mr. Higgleby. + +"The ecclesiastical law remained without any particular variation until +after the American Revolution and the colonies separated from Great +Britain, and as there was no union of church and state on this side of +the water, and so no church to take control of the subject or +ecclesiastical courts to put its doctrines into effect, for a while +there was no divorce law at all over here, and then one by one the +states took the matter up and began to make such laws about it as each +saw fit. Hence the jolly old mess we are in now!" + +"Jolly for us," commented Tutt. "It means dollars per year to us. Well," +he remarked, stretching his legs and yawning, "divorce is sure an evil." + +"That's no news," countered Mr. Tutt. "It was just as much of an evil in +the time of Moses, of Julius Caesar, and of Edward the Confessor as it +is now. There hasn't been anything approaching the flagrancy of Roman +divorce in modern history." + +"Thank heaven there's still enough to pay our office rent--anyhow!" said +Tutt contentedly. "I hope they won't do anything so foolish as to pass +a national divorce law." + +"They won't," Mr. Tutt assured him. "Most Congressmen are lawyers and +are not going to take the bread out of their children's mouths. Besides, +the power to regulate the domestic relations of the United States, not +being delegated under the Constitution to the Federal Government, is +expressly retained by the states themselves." + +"You've given me a whole lot of ideas," admitted Tutt. "If I get you +rightly, as each state is governed by its own independent laws, the +status of married persons must be governed by the law of the state where +they are; otherwise if every couple on some theory of exterritoriality +carried the law of the state where they happened to have been joined +together round with them we would have the spectacle of every state in +the union interpreting the divorce laws of every other state--confusion +worse confounded." + +"On the other hand," returned Mr. Tutt, "the law is settled that a +marriage valid when made is valid everywhere; and conversely, if invalid +where made is invalid everywhere--like our Mongolian case. If that were +not so every couple in order to continue legally married would have to +go through a new ceremony in every state through which they traveled." + +"Right-o!" whistled Tutt. "A parson on every Pullman!" + +"It follows," continued Mr. Tutt, lighting a fresh stogy and warming to +his subject, "that as each state has the right to regulate the status of +its own citizens it has jurisdiction to act in a divorce proceeding +provided one of the parties is actually domiciled within its borders. +Naturally this action must be determined by its own laws and not by +those of any other state. The great divergence of these laws makes +extraordinary complications." + +"Hallelujah!" cried Tutt. "Now, in the words of the psalmist, you've +said a mouthful! I know a man who at one and the same time is legally +married to one woman in England, to another in Nevada, is a bigamist in +New York, and--" + +"What else could he be except a widower in Pittsburgh?" pondered the +elder Tutt. "But it's quite possible. There's a case going on now where +a woman in New York City is suing her ex-husband for a divorce on the +usual statutory ground, and naming his present wife as co-respondent, +though the plaintiff herself divorced him ten years ago in Reno, and he +married again immediately after on the strength of it." + +"I'm feeling stronger every minute!" exclaimed Tutt. "Surely in all this +bedlam we ought to be able to acquit our new client Mr. Higgleby of the +charge of bigamy. At least _you_ ought to be able to. I couldn't." + +"What's the difficulty?" queried Mr. Tutt. + +"The difficulty simply is that he married the present Mrs. Higgleby on +the seventeenth of last December here in the city of New York, when he +had a perfectly good wife, whom he had married on the eleventh of the +preceding May, living in Chicago." + +"What on earth is the matter with him?" inquired Mr. Tutt. + +"He simply says he's a traveling man," replied his partner, "and--he +happened to be in New York." + +"Well, the next time he calls, you send him in to see me," directed Mr. +Tutt. "What was the present lady's name?" + +"Woodcock," answered Tutt. "Alvina Woodcock." + +"And she wanted to change to Higgleby?" muttered his partner. "I wonder +why." + +"Oh, there's something sort of appealing about him," acknowledged Tutt. +"But he don't look like a bigamist," he concluded. "What does a bigamist +look like?" meditated Mr. Tutt as he lit another stogy. + + * * * * * + +"Good morning, Mr. Tutt," muttered the Honorable Peckham from behind the +imitation rubber plant in his office, where he was engaged in +surreptitiously consuming an apple. "Um--be with you in a minute. What's +on your mind?" + +Mr. Tutt simultaneously removed his stogy with one hand and his +stovepipe with the other. + +"I thought we might as well run over my list of cases," he replied. "I +can offer you a plea or two if you wish." + +"Do I!" ejaculated the D.A., rolling his eyes heavenward. "Let's hear +the Roll of Honor." + +Mr. Tutt placed his hat, bottom side up, on the carpet and lowered +himself into a huge leather armchair, furnished to the county by a +political friend of Mr. Peckham and billed at four hundred per cent of +the regular retail price. Then he reinserted the stogy between his lips +and produced from his inside pocket a typewritten sheet. + +"There's Watkins--murdered his stepmother--indicted seven months ago. +Give you murder in the second?" + +"I'll take it," assented Peckham, lighting a cigar in a businesslike +manner. "What else you got?" + +"Joseph Goldstein--burglary. Will you give him grand larceny in the +second?" + +The Honorable Peckham shook his head. + +"Sorry I can't oblige you, old top," he said regretfully. "He's called +the King of the Fences. If I did, the papers would holler like hell. +I'll make it any degree of burglary, though." + +"Very well. Burglary in the third," agreed Mr. Tutt, jotting it down. +"Then here's a whole bunch--five--indicted together for assault on a +bartender." + +"What degree?" + +"Second--brass knuckles." + +"You can have third degree for the lot," grunted Peckham laconically. + +"All right," said Mr. Tutt. "Now for the ones that are going to trial. +Here's Jennie Smith, indicted for stealing a mandarin chain valued at +sixty-five dollars up at Monahaka's. The chain's only worth about +six-fifty and I can prove it. Monahaka don't want to go to trial because +he knows I'll show him up for the Oriental flimflammer that he is. But +of course she took it. What do you say? I'll plead her to petty and you +give her a suspended sentence? That's a fair trade." + +Peckham pondered. + +"Sure," he said finally. "I'm agreeable. Only tell Jennie that next time +I'll have her run out of town." + +Mr. Tutt nodded. + +"I'll whisper it to her. Now then, here's Higgleby--" + +"Higgle who?" inquired Peckham dreamily. + +"Bee--by--Higgleby," explained Mr. Tutt. "For bigamy. I want you to +dismiss the indictment for me." + +"What for?" + +"You'll never convict him." + +"Why not?" + +"Just because you never will!" Mr. Tutt assured him with earnestness. +"And you might as well wipe him off the list." + +"Anything the matter with the indictment?" asked the D.A. "Caput Magnus +drew it. He's a good man, you know." + +Mr. Tutt drew sententiously on his stogy. + +"I would like to tell you all my secrets," he replied after a pause, +"but I can't afford to. The indictment is in the usual form. But just +between you and me, you'll never convict Higgleby as long as you live." + +"Didn't he marry two joint and several ladies?" + +"He did." + +"And one of 'em right here in New York County?" + +"He did." + +"Well, how in hell can I dismiss the indictment?" + +"Oh, easily enough. Lack of proof as to the first marriage in Chicago, +for instance. How are you going to prove he wasn't divorced?" + +"That's matter of defense," retorted Peckham. + +"What's a little bigamy between friends, anyway?" ruminated the old +lawyer. "It's a kind of sumptuary offense. People will marry. And it's +good policy to have 'em. If they happen to overdo it a little--" + +"Well, if I do chuck the darn thing out what will you give me in +return?" asked Peckham. "Of course, bigamy isn't my favorite crime or +anything like that. I'm no bloodhound on matrimonial offenses. How'll +you trade?" + +"If you'll throw out Higgleby I'll plead Angelo Ferrero to +manslaughter," announced Mr. Tutt with a grand air of bestowing largess +upon an unworthy recipient. + +"Cock-a-doodle-do!" chortled Peckham. "A lot you will! Angelo's halfway +to the chair already yet!" + +"That's the best I'll do," replied Mr. Tutt, feeling for his hat. + +Peckham hesitated. Mr. Tutt was a fair dealer. And he wanted to get rid +of Angelo. + +"Give you murder in the second," he urged. + +"Manslaughter." + +"Nothing doing," answered the D.A. definitely. "Your Mr. Higglebigamy'll +have to stand trial." + +"Oh, very well!" replied Mr. Tutt, unjointing himself. "We're +ready--whenever you are." + +The old lawyer's lank figure had hardly disappeared out of the front +office when Peckham rang for Caput Magnus. + +"Look here, Caput," he remarked suspiciously to the indictment clerk, +"is there anything wrong with that Higgledy indictment?" + +"Higgleby, you mean, I guess," replied Mr. Magnus, regarding the D.A. in +a superior manner over the tops of his horn-rimmed spectacles. "Nothing +is the matter with the indictment. I have followed my customary form. It +has stood every test over and over again. Why do you ask?" + +The Honorable Peckham turned away impatiently. + +"Oh--nothing. Look here," he added unexpectedly, "I think I'll have you +try that indictment yourself." + +"Me!" ejaculated Caput in horror. "Why, I never tried a case in my +life!" + +"Well, 's time you began!" growled the D.A. + +"I--I--shouldn't know what to do!" protested Mr. Magnus in agony at the +mere suggestion. + +"Where the devil would we be if everybody felt like that?" demanded his +master. "You're supposed to be a lawyer, aren't you?" + +"But I--I--can't! I--don't know how!" + +"Hang it all," cried Peckham furiously, "you go ahead and do as I say. +You indicted Higgledy; now you can try Higgledy!" + +He was utterly unreasonable, but his anger was genuine if baseless. + +"Oh, very well, sir," stammered Mr. Magnus. "Of course I'll--I must--do +whatever you say." + +"You better!" shouted Peckham after his retreating figure. "You little +blathering shrimp!" + +Then he threw himself down in his swivel chair with a bang. + +"Judas H. Priest!" he roared at the rubber plant. "I'd give a good deal +for a decent excuse to fire that blooming nincompoop!" + +Meantime, as the object of his ire slunk down the corridor darkness +descended upon the soul of Caput Magnus. For Caput was what is known as +an office lawyer and had never gone into court save as an onlooker +or--as he would have phrased it--an _amicus curiae_. He was a perfect +pundit--"a hellion on law," according to the Honorable Peckham--a +strutting little cock on his own particular dunghill, but, stripped of +his goggles, books, forms and foolscap, as far as his equanimity was +concerned he might as well have been in face, figure and general +objectionability. No longer could he be heard roaring for his +stenographer. Instead, those of his colleagues who paused stealthily +outside his door on their way over to Pont's for "five-o'clock tea" +heard dulcet tones floating forth from the transom in varying +fluctuations: + +"Ahem! H'm! Gentlemen of the jury--h'm! The defendant is indicted for +the outrageous crime of bigamy! No, that won't do! Gentlemen of the +jury, the defendant is indicted for the crime of bigamy! H'm! The crime +of bigamy is one of those atrocious offenses against the moral law--" + +"Oh! Oh!" choked the legal assistants as they embraced themselves +wildly. "Oh! Oh! Caput's practisin'! Just listen to 'im! Ain't he the +little cuckoo! Bet he's takin' lessons in elocution! But won't old Tutt +just eat him alive!" + +And in the stilly hours of the early dawn those sleeping in tenements +and extensions adjacent to the hall bedroom occupied by Caput were +roused by a trembling voice that sought vainly to imitate the +nonchalance of experience, declaiming: "Gentlemen of the jury, the +defendant is indicted for the crime of bigamy! This offense is one +repugnant to the instincts of civilization and odious to the tenets of +religion!" And thereafter they tossed until breakfast time, bigamy +becoming more and more odious to them every minute. + +No form of diet, no physical exercise, no "reducicle" could have +achieved the extraordinary alteration in Mr. Magnus' appearance that was +in fact induced by his anxiety over his prospective prosecution of +Higgleby. Whereas erstwhile he had been smug and condescending, +complacent, lethargic and ponderous, he now became drawn, nervous, +apprehensive and obsequious. Moreover, he was markedly thinner. He was +obviously on a decline, caused by sheer funk. Speak sharply to him and +he would shy like a frightened pony. The Honorable Peckham was +enraptured, claiming now to have a system of getting even with people +that beat the invention of Torquemada. When it was represented to him +that Caput might die, fade away entirely, in which case the office would +be left without any indictment clerk, the Honorable Peckham profanely +declared that he didn't care a damn. Caput Magnus was going to try +Higgleby, that was all there was to it! And at last the day came. + +Gathered in Judge Russell's courtroom were as many of the office +assistants as could escape from their duties, anxious to officiate at +the legal demise of Caput Magnus. Even the Honorable Peckham could not +refrain from having business there at the call of the calendar. It +resembled a regular monthly conference of the D.A.'s professional staff, +which for some reason Tutt and Mr. Tutt had also been invited to attend. +Yea, the spectators were all there in the legal colosseum waiting +eagerly to see Caput Magnus enter the arena to be gobbled up by Tutt & +Tutt. They thirsted for his blood, having been for years bored by his +brains. They would rather see Caput Magnus made mincemeat of than +ninety-nine criminals convicted, even were they guilty of bigamy. + +But as yet Caput Magnus was not there. It was ten-twenty-nine. The clerk +was there; Mr. Higgleby, isosceles, flabby and acephalous as ever, was +there; Tutt and Mr. Tutt were there; and Bonnie Doon, and the +stenographer and the jury. And on the front bench the two wives of +Higgleby sat, side by side, so frigidly that had that gentleman +possessed the gift of prevision he would never have married either of +them; Mrs. Tomascene Startup Higgleby and Mrs.--or Miss--Alvina Woodcock +(Higgleby)--depending upon the action of the jury. The entire cast in +the eternal matrimonial triangular drama was there except the judge and +the prosecutor in the form of Caput Magnus. + +And then, preceding the judge by half a minute only, his entrance timed +histrionically to the second, he came, like Eudoxia, like a flame out of +the east. In swept Caput Magnus with all the dignity and grace of an +Irving playing Cardinal Wolsey. Haggard, yes; pale, yes; tremulous, +perhaps; but nevertheless glorious in a new cutaway coat, patent-leather +shoes, green tie, a rosebud blushing from his lapel, his hair newly cut +and laid down in beautiful little wavelets with pomatum, his figure +erect, his chin in air, a book beneath his arm, his right hand waving in +a delicate gesture of greeting; for Caput had taken O'Leary's suggestion +seriously, and had purchased that widely known and authoritative work to +which so many eminent barristers owe their entire success--"How to Try a +Case"--and in it he had learned that in order to win the hearts of the +jury one should make oneself beautiful. + +"What in hell's he done to himself?" gasped O'Leary to O'Brien. + +"He'll make a wonderful corpse!" whispered the latter in response. + +"Order in the court! His Honor the Judge of General Sessions!" bellowed +an officer at this moment, and the judge came in. + +Everybody got up. He bowed. Everybody bowed. Everybody sat down again. +A few, deeply affected, blew their noses. Then His Honor smiled genially +and asked what business there was before the court, and the clerk told +him that they were all there to try a man named Higgleby for bigamy, and +the judge, nodding at Caput, said to go ahead and try him. + +In the bottom of his peritoneum Mr. Magnus felt that he carried a cold +stone the size of a grapefruit. His hands were ice, his lips bloodless. +And there was a Niagara where his hearing should have been. But he rose, +just as the book told him to do, in all his beauty, and enunciated in +the crystal tones he had learned during the last few weeks at Madam +Winterbottom's school of acting and elocution--in syllables chiseled +from the stone of eloquence by the lapidary of culture: + +"If Your Honor please, I move the cause of the People of the state of +New York against Theophilus Higgleby, indicted for bigamy." + +Peckham and the rest couldn't believe their ears. It wasn't possible! +That perfect specimen of tonsorial and sartorial art, warbling like a +legal Caruso, conducting himself so naturally, easily and casually, +couldn't be old Caput Magnus! They pinched themselves. + +"Say!" ejaculated Peckham. "What's happened to him? When did Sir Henry +sign up with us?" + +Mr. Tutt across the inclosure in front of the jury box raised his bushy +eyebrows and looked whimsically at the D. A. over his spectacles. + +"Are you ready, Mr. Tutt?" inquired the judge. + +"Entirely so, Your Honor," responded the lawyer. + +"Then impanel a jury." + +The jury was impaneled, Mr. Caput Magnus passing through that trying +ordeal with great éclat. + +"You may proceed to open your case," directed the judge. + +The staff saw a very white Caput Magnus rise and bow in the direction of +the bench. Then he stepped to the jury box and cleared his throat. His +official associates held their breath expectantly. Would he--or wouldn't +he? There was a pause. + +Then: "Mister Foreman and gentlemen of the jury," declaimed Caput in +flutelike tones: "The defendant is indicted for the crime of bigamy, an +offense alike repugnant to religion, civilization and to the law." + +The words flowed from him like a rippling sunlit stream; encircled him +like a necklace of verbal jewels, a rosary, each word a pearl or a bead +or whatever it is. With perfect articulation, enunciation and +gesticulation Mr. Caput Magnus went on to inform his hearers that Mr. +Higgleby was a bigamist of the deepest dye, that he had feloniously, +wilfully and knowingly married two several females, and by every +standard of conduct was utterly and entirely detestable. + +Mr. Higgleby, flanked by Tutt and Mr. Tutt, listened calmly. Caput +warmed to his task. + +The said Higgleby, said he, had as aforesaid in the indictment committed +the act of bigamy, to wit, of marriage when he had one legal wife +already, in New York City on the seventeenth of last December, by +marrying in Grace Church Chantry the lady whom they saw sitting by the +other lady--he meant the one with the red feather in her bonnet--that is +to say, her hat, whereas the other lady, as he had said aforesaid, had +been lawfully and properly married to the defendant the preceding May, +to wit, in Chicago as aforesaid-- + +"Pardon me!" interrupted the foreman petulantly. "Which is the lady you +mean was married to the defendant in New York? You said she was sitting +by the other lady and that you meant the one with the red feather, but +you didn't say whether the one with the red feather was the other lady +or the one you were talking about." + +Caput gagged and turned pink. + +"I--I--" he stammered. "The lady in the red bonnet is--the--New York +lady." + +"You mean she isn't his wife although the defendant went through the +form of marriage with her, because he was already married to another," +suggested His Honor. "You might, I think, put things a little more +simply. However, do it your own way." + +"Ye-es, Your Honor." + +"Go on." + +But Caput was lost--hopelessly. Every vestige of the composure so +laboriously acquired at Madam Winterbottom's salon had evaporated. He +felt as if he were swinging in midair hitched to a scudding aeroplane by +a rope about his middle. The mucous membranes of his throat were as dry +and as full of dust as the entrails of a carpet sweeper. His vision was +blurred and he had no control over his muscles. Weakly he leaned against +the table in front of the jury, the room swaying about him. The pains of +hell gat hold upon him. He was dying. Even the staff felt +compunction--all but the Honorable Peckham. + +Judge Russell quickly sensed the situation. He was a kindly man, who had +pulled many an ass out of the mire of confusion. So with a glance at +Mr. Tutt he came to Caput's rescue. + +"Let us see, Mr. Magnus," he remarked pleasantly; "suppose you prove the +Illinois marriage first. Is Mrs. Higgleby in court?" + +Both ladies started from their seats. + +"Mrs. Tomascene Higgleby," corrected His Honor. "Step this way, please, +madam!" + +The former Miss Startup made her way diffidently to the witness chair +and in a faint voice answered the questions relative to her marriage of +the preceding spring as put to her by the judge. Mr. Tutt waved her +aside and Caput Magnus felt returning strength. He had expected and +prepared for a highly technical assault upon the legality of the +ceremony performed in Cook County. He had anticipated every variety and +form of question. But Mr. Tutt put none. He merely smiled benignly upon +Caput in an avuncular fashion. + +"Have you no questions, Mr. Tutt?" inquired His Honor. + +"None," answered the lawyer. + +"Then prove the bigamous marriage," directed Judge Russell. + +Then rose at the call of justice, militantly and with a curious air of +proprietorship in the overmarried defendant, the wife or maiden who in +earlier days had answered to the name of Alvina Woodcock. Though she was +the injured party and though the blame for her unfortunate state rested +entirely upon Higgleby, her resentment seemed less directed toward the +offending male than toward the Chicago lady who was his lawful wife. +There was no question as to the circumstances to which she so definitely +and aggressively testified. No one could gainsay the deplorable fact +that she had, as she supposed, been linked in lawful wedlock to Mr. +Tutt's isosceles client. But there was that in her manner which +suggested that she felt that being the last she should be first, that +finding was keeping, and that possession was nine points of matrimonial +law. + +And, as before, Mr. Tutt said nothing. Neither he nor Tutt nor Bonnie +Doon nor yet Higgleby showed any the least sign of concern. Caput's +momentarily returning self-possession forsook him. What portended his +ominous silence? Had he made some horrible mistake? Had he overlooked +some important jurisdictional fact? Was he now to be hoist for some +unknown reason by his own petard? He was, poor innocent--he was! + +"That is the case," he announced faintly. "The People rest." + +Judge Russell looked down curiously at Mr. Tutt. + +"Well," he remarked, "how about it, Mr. Tutt?" + +But the old lawyer only smiled. + +"Come here a minute," directed His Honor. + +And when Mr. Tutt reached the bench the judge said: "Have you any +defense in this case? If not, why don't you plead guilty and let me +dispose of the matter?" + +"But, Your Honor," protested Mr. Tutt, "of course I have a defense--and +a most excellent one!" + +"You have?" + +"Certainly." + +The judged elevated his forehead. + +"Very well," he remarked; "if you really have one you had better go on +with it. And," he added beneath his breath, but in a tone clearly +audible to the clerk, "the Lord have mercy on your soul!" + +The assistants saw Caput subside into his chair and simultaneously Mr. +Tutt slowly raise his lank form toward the ceiling. + +"Gentlemen of the jury," said he benignly: "My client, Mr. Higgleby, is +charged in this indictment with the crime of bigamy committed here in +New York, in marrying Alvina Woodcock--the strong-minded lady on the +front row of benches there--when he already had a lawful wife living in +Chicago. The indictment alleges no other offense and the district +attorney has not sought to prove any, my learned and eloquent adversary, +Mr. Magnus, having a proper regard for the constitutional rights of +every unfortunate whom he brings to the bar of justice. If therefore I +can prove to you that Mr. Higgleby was never lawfully married to +Tomascene Startup in Chicago on the eleventh of last May or at any other +time, the allegation of bigamy falls to the ground; at any rate so far +as this indictment is concerned. For unless the indictment sets forth a +valid prior marriage it is obvious that the subsequent marriage cannot +be bigamous. Am I clear? I perceive by your very intelligent facial +expressions that I am. Well, my friends, Mr. Higgleby never was lawfully +married to Tomascene Startup last May in Chicago, and you will therefore +be obliged to acquit him! Come here, Mr. Smithers." + +Caput Magnus suddenly experienced the throes of dissolution. Who was +Smithers? What could old Tutt be driving at? But Smithers--evidently the +Reverend Sanctimonious Smithers--was already placidly seated in the +witness chair, his limp hands folded across his stomach and his thin +nose looking interrogatively toward Mr. Tutt. + +"What is your name?" asked the lawyer dramatically. + +"My name is Oswald Garrison Smithers," replied the reverend gentleman in +Canton-flannel accents, "and I reside in Pantuck, Iowa, where I am +pastor of the Reformed Lutheran Church." + +"Do you know the defendant?" + +"Indeed I do," sighed the Reverend Smithers. "I remember him very well. +I solemnized his marriage to a widow of my congregation on July 4, 1917; +in fact to the relict of our late senior warden, Deacon Pellatiah +Higgins. Sarah Maria Higgins was the lady's name, and she is alive and +well at the present time." + +He gazed deprecatingly at the jury. If meekness had efficacy he would +have inherited the earth. + +"What?" ejaculated the foreman. "You say this man is married to _three_ +women?" + +"Trigamy--not bigamy!" muttered the clerk, _sotto voce_. + +"You have put your finger upon the precise point, Mister Foreman!" +exclaimed Mr. Tutt admiringly. "If Mr. Higgleby was already lawfully +married to a lady in Iowa when he married Miss--or Mrs.--Startup in +Chicago last May, his marriage to the latter was not a legal marriage; +it was in fact no marriage at all. You can't charge a man with bigamy +unless you recite a legal marriage followed by an illegal one. +Therefore, since the indictment fails to set forth a legal marriage +anywhere followed by a marriage, legal or otherwise, in New York County, +it recites no crime, and my client must be acquitted. Is not that the +law, Your Honor?" + +Judge Russell quickly hid a smile and turned to the moribund Caput. + +"Mr. Magnus, have you anything to say in reply to Mr. Tutt's argument?" +he asked. "If not--" + +But no response came from Caput Magnus. He was past all hearing, +understanding or answering. He was ready to be carried out and buried. + +"Well, all I have got to say is--" began the foreman disgustedly. + +"You do not have to say anything!" admonished the judge severely. "I +will do whatever talking is necessary. A little more care in the +preparation of the indictment might have rendered this rather absurd +situation impossible. As it is, I must direct an acquittal. The +defendant is discharged upon this indictment. But I will hold him in +bail for the action of another grand jury." + +"In which event we shall have another equally good defense, Your Honor," +Mr. Tutt assured him. + +"I don't doubt it, Mr. Tutt," returned the judge good-naturedly. "Your +client seems to have loved not wisely but too well." And they all poured +out happily into the corridor--that is, all of them except Caput and the +two ladies, who remained seated upon their bench gazing fiercely and +disdainfully at each other like two tabby cats on a fence. + +"So you're not married to him, either!" sneered Miss Woodcock. + +"Well, I'm as much married to him as you are!" retorted Miss Startup +with her nose in the air. + +Then instinctively they both turned and with one accord looked +malevolently at Caput, who, seeing in their glance something which he +did not like, slipped stealthily from his chair and out of the room, +leaving ignominiously behind him upon the floor his precious volume +entitled "How to Try a Case"! + + + + +"That Sort of Woman" + + + "Judge not according to the appearance."--John VII: 24. + +"Tutt," said Mr. Tutt, entering the offices of Tutt & Tutt and hanging +his antediluvian stovepipe on the hat-tree in the corner, "I see by the +morning paper that Payson Clifford has departed this life." + +"You don't say!" replied the junior Tutt, glancing up from the letter he +was writing. "Which one,--Payson, Senior, or Payson, Junior?" + +"Payson, Senior," answered Mr. Tutt as he snipped off the end of a stogy +with the pair of nail scissors which he always carried in his vest +pocket. + +"In that case, it's too bad," remarked Tutt regretfully. + +"Why 'in that case'?" queried his partner. + +"Oh, the son isn't so much of a much!" replied the smaller Tutt. "I +don't say the father was so much of a much, either. Payson Clifford was +a good fellow--even if he wasn't our First Citizen--or likely to be a +candidate for that position in the Hereafter. But that boy--" + +"Shh!" reproved Mr. Tutt, slowly shaking his head so that the smoke from +his rat-tailed cigar wove a gray scroll in the air before his face. +"Remember that there's one thing worse than to speak ill of the dead, +and that's to speak ill of a client!" + +Mr. Payson Clifford, the client in question, was a commonplace young +man who had been carefully prepared for the changes and chances of this +mortal life first at a Fifth Avenue day school in New York City, +afterwards at a select boarding school among the rock-ribbed hills of +the Granite State, and finally at Cambridge, Massachusetts, in the +cultured atmosphere of Harvard College, through whose precincts, in the +dim, almost forgotten past, we are urged to believe that the good and +the great trod musingly in their beautiful prime. He emerged with a +perhaps almost prudish distaste for the ugly, the vulgar, and the +unclean,--and with distinct delusions of grandeur. He was still in that +state not badly described by the old saw--"You can always tell a Harvard +man,--but you can't tell him much." + +His mother had died when he was still a child and he preserved her +memory as the most sacred treasure of his inner shrine. He could just +recall her as a gentle and dignified presence, in contrast with whom his +burly, loud-voiced father had always seemed crass and ordinary. And +although it was that same father who had, for as long as he could +remember, supplied him with a substantial check upon the first day of +every month and thus enabled him to achieve that exalted state of +intellectual and spiritual superiority which he had in fact attained, +nevertheless, putting it frankly in the vernacular, Payson rather looked +down on the old man, who palpably suffered from lack of the advantages +which he had furnished to his son. + +Payson, Sr., had never taken any particular pains to alter his son's +opinion of himself. On the whole he was more proud of him than +otherwise, recognizing that while he obviously suffered from an +overdevelopment of the ego and an excessive fastidiousness in dress, he +was, at bottom, clearly all right and a good sort. Still, he was forced +to confess that there wasn't much between them. His son expressed the +same thought by regretting that his father "did not speak his language." + +So, in the winter vacation when Payson, Sr., fagged from his long day at +the office sought the "Frolics" or the "Folies," Payson, Jr., might be +seen at a concert for the harpsichord and viola, or at an evening of +Palestrina or the Earlier Gregorian Chants. Had he been less +supercilious about it this story would never have been written--and +doubtless no great loss at that. But it is the prerogative of youth to +be arrogantly merciless in its judgment of the old. Its bright lexicon +has no verdict "with mitigating circumstances." Youth is just when it is +right; it is cruel when it is wrong; and it is inexorable in any case. +If we are ever to be tried for our crimes let us have juries of white +whiskered old boys who like tobacco, crab flakes, light wines and +musical comedy. + +All of which leads up to the sad admission upon our part that Payson, +Jr., was a prig. And in the very middle of his son's priggishness +Payson, Sr., up and died, and Tutt and Mr. Tutt were called upon to +administer his estate. + +There may be concealed somewhere a few rare human beings who can look +back upon their treatment of their parents with honest satisfaction. I +have never met any. It is the fate of those who bring others into the +world to be chided for their manners, abused for their mistakes, and +pilloried for their faults. Twenty years difference in age turns many +an elegance into a barbarism; many a virtue into a vice-versa. I do not +perform at breakfast for the edification of my offspring upon the +mustache cup, but I chew my strawberry seeds, which they claim is worse. +My grandpapa and grandmama used to pour the coffee from their cups and +drink it from their saucers and they were--nevertheless--rated AA1 in +Boston's Back Bay Blue Book. And now my daughters, who smoke cigarettes, +object loudly to my pipe smoke! _Autre temps autres manières_. And no +man is a hero to his children. He has a hanged-sight more chance with +his valet--if in these days he can afford to keep one. + +His father's death was a shock to Payson, Jr., because he had not +supposed that people in active business like that ever did die,--they +"retired" instead, and after a discreet period of semi-seclusion +gradually disintegrated by appropriate stages. But Payson, Sr., simply +died right in the middle of everything--without any chance of a +spiritual understanding--"reconciliation" would be inaccurate--with his +son. So, Payson, Jr., protestingly acquired by part cash and balance +credit a complete suit of what he scathingly described as "the barbarous +panoply of death" and, turning himself into what he similarly called a +"human catafalque," followed Payson, Sr., to the grave. + +Perhaps, after all, we have been a bit hard on Payson, Jr. He was +fundamentally, as his father had perceived, good stuff, and wanted to do +the right thing. But what is the right thing? Really it isn't half as +hard to be good as to know how. + +As the orphaned Payson, ensconced in lonely state in one of the funeral +hacks, was carried at a fast trot down Broadway towards the offices of +Tutt & Tutt, he consoled himself for his loss with the reflection that +this was, probably, the last time he would ever have to see any of his +relatives. Never in his short life had he been face to face with such a +gathering of unattractive human beings. He hadn't imagined that such +people existed. They oughtn't to exist. The earth should be a lovely +place, its real estate occupied only by cultured and lovely people. +These aesthetic considerations reminded him with a shock that, just as +he had been an utter stranger to them, so he had been a stranger to his +father--his poor, old, widowed father. What did he really know about +him?--not one thing! And he had never tried to find out anything about +him,--about his friends, his thoughts, his manner of life,--content +merely to cash his checks, under the unconscious assumption that the man +who drew them ought to be equally content to be the father of such a +youth as himself. But those rusty relatives! They must have been his +father's! Certainly his mother's wouldn't have been like that,--and he +felt confident he took after his mother. Still, those relatives worried +him! Up at Harvard he had stood rather grandly on his name--"Payson +Clifford, Jr.,"--with no questions asked about the "Senior" or anybody +else. He now perceived that he was to be thrown out into the world of +fact where who and what his father had been might make a lot of +difference. Rather anxiously he hoped the old gentleman would turn out +to have been all right;--and would have left enough of an estate so that +he could still go on cashing checks upon the first day of every month! + +It was one of the unwritten laws of the office of Tutt & Tutt that Mr. +Tutt was never to be bothered about the details of a probate matter, and +it is more than doubtful whether, even if he had tried, he could have +correctly made out the inventory of an estate for filing in the +Surrogate's Court. For be it known that, while the senior member of the +firm was long on the philosophy of the law and the subtleties of +"restraints on alienation," "powers," "perpetuities" and the mysteries +of "the next eventual estate," he was frankly short on the patience to +add and subtract. So while Mr. Tutt drew their clients' wills, it was +Tutt who attempted to probate and execute them. Then, if by any chance, +there was any trouble or some ungrateful relative thought he hadn't got +enough, it was Mr. Tutt who reluctantly tossed away his stogy, strolled +over to court and defended the will which he had drawn,--usually with +success. + +So it was the lesser Tutt who wrung the hand of Payson Clifford and gave +him the leathern armchair by the window. + +"And now about the will!" chirped Tutt, as after a labored encomium upon +the virtues of Payson, Senior, deceased, he took the liberty of lighting +a cigarette before he commenced to read the instrument which lay in a +brown envelope upon the desk before him. "And now about the will! I +suppose you are already aware that your father has made you his executor +and, after a few minor legacies, the residuary legatee of his entire +estate?" + +Payson shook his head mutely. He felt it more becoming to pretend to be +ignorant of these things under the circumstances. + +"Yes," continued Tutt cheerfully, taking up the envelope, "Mr. Tutt +drew the will--nearly fifteen years ago--and your father never thought +necessary to change it. It's lain right there in our 'Will Box' without +being disturbed more than once,--and that was seven or eight years ago +when he came in one day and asked to be allowed to look at it,--I think +he put an envelope containing a letter in with it. I found one there the +other day." + +Payson languidly took the will in his hand. + +"How large an estate did he leave?" he inquired. + +"As near as I can figure out about seventy thousand dollars," answered +Tutt. "But the transfer tax will not be heavy, and the legacies do not +aggregate more than ten thousand." + +The instrument was a short one,--drawn with all Mr. Tutt's ability for +compression--and filling only a single sheet. Payson's father had +bequeathed seventy-six hundred dollars to his three cousins and their +children, and everything else he had left to his son. Payson rapidly +computed that after settling the bills against the estate, including +that of Tutt & Tutt, he would probably get at least sixty thousand out +of it. At the current rate he would continue to be quite +comfortable,--more so in fact than heretofore. Still, it was less than +he had expected. Perhaps his father had had expensive habits. + +"Here's the letter," went on Tutt, handing it to Payson who took out his +pen-knife to open it the more neatly. "Probably a suggestion as to the +disposal of personal effects--remembrances or something of the sort. +It's often done." + +The envelope was a cheap one, ornamented in the upper left hand corner +with a wood cut showing a stout goddess in a night dress, evidently +meant for Proserpina--pouring a Niagara of grain out of a cornucopia of +plenty over a farmland stacked high with apples, corn, and pumpkins, and +flooded by the beams of a rising sun with a real face. Beneath were the +words: + + "If not delivered in five days return to + + Clifford, Cobb & Weng, + Grain Dealers and Produce + 597 Water Street, + N.Y. City, + N.Y." + +Even as his eye fell upon it Payson was conscious of its coarse +vulgarity. And "Weng"! Whoever heard of such a name? He certainly had +not,--hadn't even known that his father had a partner with such an +absurd cognomen! "--& Weng!" There was something terribly plebeian about +it. As well as about the obvious desire for symmetry which had led to +the addition of that superfluous "N.Y." below the entirely adequate +"N.Y. City." But, of course, he'd be glad to do anything his father +requested in a letter. + +He forced the edge of the blade through the tough fiber of the envelope, +drew forth the enclosed sheet and unfolded it. In the middle of the top +was a replica of the wood cut upon the outside, only minus the "If not +delivered in five days return to." Then Payson read in his father's +customary bold scrawl the simple inscription, doomed to haunt him +sleeping and waking for many moons:-- + + "In case of my sudden death I wish my executor to give twenty-five + thousand dollars to my very dear friend Sadie Burch, of Hoboken, + N.J. + + "PAYSON CLIFFORD." + +For a brief--very brief--moment, a mist gathered over the letter in the +son's hand. "My dear friend Sadie Burch!" He choked back the exclamation +of surprise that rose unconsciously to his lips and endeavored to +suppress any facial evidence of his inner feelings. "Twenty-five +thousand!" Then he held out the letter more or less casually to Tutt. + +"Wee-e-ll!" whistled the lawyer softly, with a quick glance from under +his eyebrows. + +"Oh, it isn't the money!" remarked Payson in a sickly tone--although of +course he was lying. It _was_ the money. + +The idea of surrendering nearly half his father's estate to a stranger +staggered him; yet to his eternal credit, in that first instant of +bewildered agony no thought of disregarding his father's wishes entered +his mind. It was a hard wallop, but he'd got to stand it. + +"Oh, that's nothing!" remarked Tutt. "It's not binding. You don't need +to pay any attention to it." + +"Do you really mean that that paper hasn't any legal effect?" exclaimed +the boy with such a reaction of relief that for the moment the ethical +aspect of the case was entirely obscured by the legal. + +"None whatever!" returned Tutt definitely. + +"But it's part of the will!" protested Payson. "It's in my father's own +handwriting." + +"That doesn't make any difference," declared the lawyer. "Not being +witnessed in the manner required by law it's not of the slightest +significance." + +"Not even if it is put right in with the will?" + +"Not a particle." + +"But I've often heard of letters being put with wills." + +"No doubt. But I'll wager you never heard of any one of them being +probated." + +Payson's legal experience in fact did not reach to this technical point. + +"Look here!" he returned obstinately. "I'll be hanged if I understand. +You say this paper has no legal value and yet it is in my father's own +hand and practically attached to his will. Now, apart from +any--er--moral question involved, just why isn't this letter binding on +me?" + +Tutt smiled leniently. + +"Have a cigarette?" he asked, and when Payson took one, he added +sympathetically as he held a match for him, "Your attitude, my dear sir, +does you credit. It is wholly right and natural that you should +instinctively desire to uphold that which on its face appears to be a +wish of your father. But all the same that letter isn't worth the paper +it's written on--as matter of law." + +"But why not?" demanded Payson. "What better evidence could the courts +desire of the wishes of a testator than such a letter?" + +"The reason is simple enough!" replied Tutt, settling himself in a +comfortable position. "In the eye of the law no property is ever without +an owner. It is always owned by somebody, although the ownership may be +in dispute. When a man dies his real property instantly passes to his +heirs and his personal property descends in accordance to the local +statute of distributions or, if there isn't any, to his next of kin; but +if he leaves a will, to the extent to which it is valid, it diverts the +property from its natural legal destination. Thus, in effect, the real +purpose of a will is to prevent the laws operating on one's estate after +death. If your father had died intestate, you would have instantly +become, in contemplation of law, the owner of all his property. His +will--his legal will--deprives you of a small part of it for the benefit +of others. But the law is exceedingly careful about recognizing such an +intention of a testator to prevent the operation of the statutes and +requires him to demonstrate the sincerity and fixity of that intention +by going through various established formalities, such as putting his +intention in due form in a written instrument which he must sign and +declare to be his last will before a certain number of competent +witnesses whom he requests to sign as such and who actually do sign as +such in his presence and in the presence of each other. Your father +obviously did none of these things when he placed this letter with his +will." + +"But isn't a letter ever enough--under any circumstances?" inquired +Payson. + +"Well," said Tutt. "It is true that under certain exceptional +circumstances a man may make what is known as a nuncupative will." + +"What is a--a--nuncupative will?" asked his client. + +"Technically it is an oral will, operating on personality only, made in +extremis--that is, actually in fear of death--and under our statutes +limited to soldiers in active military service or to mariners at sea. +Under the old common law it was just as effective to pass personal +estate as a written instrument." + +"But father wasn't either a soldier or a sailor," commented Payson, "and +anyhow a letter isn't an oral will; if it's anything at all, it's a +written one, isn't it?" + +"That is the attitude the law takes," nodded Tutt. "Of course, one could +argue that it made no difference whether a man uttered his wishes orally +in the presence of witnesses or reduced them to writing and signed them, +but the law is very technical in such matters and it has been held that +a will reduced to writing and signed by the testator, or a memorandum of +instructions for making a will, cannot be treated as a nuncupative will; +nor is a written will, drawn up by an attorney, but not signed, owing to +the sickness of the testator to be treated as a nuncupative will; but +upon requisite proof--in a proper case--a paper, not perfected as a +written will, may be established as a nuncupative will when its +completion is prevented by act of God, or any other cause than an +intention to abandon or postpone its consummation. The presumption of +the law is against validity of a testamentary paper not completed. There +must be in the testator the _animus testandi_, which is sometimes +presumed from circumstances in such cases and in such places as +nuncupative wills are recognized. Now, your father being as you point +out, neither a soldier nor a sailor, couldn't have made a nuncupative +will under any circumstances, even if a letter would legally be treated +as such a will instead of as an ineffectual attempt to make a written +one--upon which point I confess myself ignorant. Therefore"--and he +tossed away his cigarette butt with an air of finality--"this letter +bequeathing twenty-five thousand dollars to Sadie Burch--whoever and +whatever she may be--is either an attempt to make a will or a codicil to +a will in a way not recognized by the statute, or it is an attempt to +add to, alter or vary a will already properly executed and witnessed by +arbitrarily affixing to or placing within it an extraneous written +paper." + +"Well," commented Payson, "I understand what you've said about +nun--nuncupative wills, all right,--that is, I think I do. But leaving +them out of consideration I still don't see why this letter can't be +regarded as _part_ of the original will." + +"For the reason that when your father executed the original document he +went through every form required by the statute for making a will. If he +hadn't, it wouldn't have been a will at all. If this paper, which never +was witnessed by a single person, could be treated as a supplement or +addition to the will, there would have been no use requiring the +original will to be witnessed, either." + +"That seems logical," agreed Payson. "But isn't it often customary to +incorporate other papers by referring to them in a will?" + +"It is sometimes done, and usually results in nothing but litigation. +You see for yourself how absurd it would be to treat a paper drawn or +executed after a will was made as part of it, for that would render the +requirements of the statute nugatory." + +"But suppose the letter was already in existence or was written at the +same time as the will,--wouldn't that make a difference?" hesitated +Payson. + +"Not a bit! Not one bit!" chirped Tutt. "The law is settled that such a +paper writing can be given effect only under certain very special +conditions and only to a limited extent. Anyhow that question doesn't +arise here." + +"Why not?" queried the residuary legatee. "How do you know this letter +wasn't written and placed inside the will when it was made?--And that my +father supposed that of course it would be given effect?" + +"In that case why shouldn't he have incorporated the legacy in the +will?" countered Tutt sharply. + +"He--er--may not have wished Mr. Tutt to know about it," murmured +Payson, dropping his eyes. + +"Oh,--hardly!" protested Tutt. "We can be morally certain that this +letter was written and placed with the will that time your father came +in here and asked to be allowed to see it, seven odd years ago. Mr. Tutt +would have noticed it if your father had placed it with the will in the +first instance and would have warned him that nothing of the sort could +possibly be effective." + +"But," insisted Payson, "assuming for argument's sake that this letter +was in fact written at the time the will was originally executed, what +is the reason the law won't recognize it as a valid bequest?" + +Tutt smiled and fumbled in an open box for another cigarette. + +"My dear sir," he replied, "no paper could possibly be treated as part +of a will--even if extant at the time the will was executed--unless +distinctly referred to in the will itself. In a word, there must be a +clear and unmistakable intention on the part of the testator to attempt +to incorporate the extraneous paper by reference. Now, here, there is no +reference to the paper in the will at all." + +"That is true!" admitted Payson. "But--" + +"But even if there were," went on Tutt, eagerly, "the law is settled in +this state that where a testator--either through carelessness or a +desire to economize space or effort, has referred in his will to +extraneous papers or memoranda, either as fixing the names of +beneficiaries of particular devises or bequests, or as fixing the amount +or the manner in which the amount of such devises or bequests is to be +ascertained, such a paper must not contain any testamentary disposition +of property. In a word the testator having willed something can +_identify_ it by means of an extraneous paper if properly designated, +but he cannot _will_ the thing away by an extraneous paper no matter how +referred to. For example, if A wills to B 'all the stock covered by my +agreement of May 1, with X' it merely describes and identifies the thing +bequeathed,--and that is all right. The law will give effect to the +identifying agreement, although it is separate from the will and +unattested. But, if A's will read 'and I give such further bequests as +appear in a paper filed herewith' and the paper contained a bequest to B +of 'all the stock covered by my agreement of May 1, with X' it would be +an attempted bequest outside of the will and so have no legal effect." + +"Thanks," said Payson. "I understand. So in no event whatever could this +letter have any legal effect?" + +"Absolutely none whatever!--You're perfectly safe!" And Tutt leaned back +with a comfortable smile. + +But Payson did not smile in return. Neither was he comfortable. Be it +said for him that, however many kinds of a fool he may have been, while +momentarily relieved at knowing that he had no legal obligation to +carry out his father's wishes so far as Sadie Burch was concerned, his +conscience was by no means easy and he had not liked at all the tone in +which the paunchy little lawyer had used the phrase "you're perfectly +safe." + +"What do you mean by 'perfectly safe'," he inquired rather coldly. + +"Why, that Sadie Burch could never make you pay her the legacy--because +it isn't a legal legacy. You can safely keep it. It's yours, legally and +morally." + +"Well, is it?" asked Payson slowly. "Morally, isn't it my duty to pay +over the money, no matter who she is?" + +Tutt, who had tilted backward in his swivel chair, brought both his feet +to the floor with a bang. + +"Of course it isn't!" he cried. "You'd be crazy to pay the slightest +attention to any such vague and unexplained scrawl. Listen, young man! +In the first place you haven't any idea when your father wrote that +paper--except that it was at least seven years ago. He may have changed +his mind a dozen times since he wrote it. It may have been a mere +passing whim or fancy, done in a moment of weakness or emotion or +temporary irrationality. Indeed, it may have been made under duress. +Nobody but a lawyer who has the most intimate knowledge of his clients' +daily life and affairs has the remotest suspicion of--Oh, well, we won't +go into that! But, the first proposition is that in no event is it +possible for you to say that the request in that letter was the actual +wish of your father at the time of his death. All you can say is that at +some time or other it may have been his wish." + +"I see!" agreed Payson. "Well, what other points are there?" + +"Secondly," continued Tutt, "it must be presumed that if your father +took the trouble to retain a lawyer to have his will properly drawn and +executed he must have known first, that it was necessary to do so in +order to have his wishes carried out, and second, that no wish not +properly incorporated in the will itself could have any legal effect. In +other words, inferentially, he knew that this paper had no force and +therefore it must be assumed that if he made it that way he intended +that it should have no legal effect and did not intend that it should be +carried out. Get me?" + +"Why, yes, I think I do. Your point is that if a man knows the law and +does a thing so it has no legal effect he should be assumed to intend +that it have no legal effect." + +"Exactly," Tutt nodded with satisfaction. "The law is wise, based on +generations of experience. It realizes the uncertainties, vagaries, and +vacillations of the human mind--and the opportunities afforded to +designing people to take advantage of the momentary weaknesses of +others--and hence to prevent fraud and insure that only the actual final +wishes of a man shall be carried out it requires that those wishes shall +be expressed in a particular, definite and formal way--in writing, +signed and published before witnesses." + +"You certainly make it very clear!" assented Payson. "What do executors +usually do under such circumstances?" + +"If they have sense they leave matters alone and let the law take its +course," answered Tutt with conviction. "I've known of more trouble--! +Several instances right here in this office. A widow found a paper with +her husband's will expressing a wish that a certain amount of money +should be given to a married woman living out in Duluth. There was +nothing to indicate when the paper was written, although the will was +executed only a month before he died. Apparently the deceased hadn't +seen the lady in question for years. I told her to forget it, but +nothing would suit her but that she should send the woman a money order +for the full amount--ten thousand dollars. She kept it, all right! Well, +the widow found out afterwards that her husband had written that paper +thirty years before at a time when he was engaged to be married to that +woman, that they had changed their minds and each had married happily +and that the paper with some old love letters had, as usually happens, +got mixed up with the will instead of having been destroyed as it should +have been. You know, it's astonishing, the junk people keep in their +safe deposit boxes! I'll bet that ninety-nine out of a hundred are half +full of valueless and useless stuff, like old watches, grandpa's jet +cuff buttons, the letters Uncle William wrote from the Holy Land, +outlawed fire insurance and correspondence that nobody will ever +read,--everything always gets mixed up together,--and yet every paper a +man leaves after his death is a possible source of confusion or trouble. +And one can't tell how or why a person at a particular time may come to +express a wish in writing. It would be most dangerous to pay attention +to it. Suppose it was _not_ in writing. Morally, a wish is just as +binding if spoken as if incorporated in a letter. Would you waste any +time on Sadie Burch if she came in here and told you that your father +had expressed the desire that she should have twenty-five thousand +dollars? Not much!" + +"I don't suppose so!" admitted Payson. + +"Another thing!" said Tutt. "Remember this, the law would not _permit_ +you as executor of your father's will to pay over this money, if any +other than yourself were the residuary legatee. You'd have no right to +take twenty-five thousand dollars out of the estate and give it to Miss +Burch at the expense of anybody else!" + +"Then you say the law won't let me pay this money to Sadie Burch whether +I am willing to or not?" asked Payson. + +"Not as executor. As executor you're absolutely obliged to carry out the +terms of the will and disregard anything else. You must preserve the +estate intact and turn it over unimpaired to the residuary legatee!" +repeated Tutt. + +"But I am the residuary legatee!" said Payson. + +"As executor you've got to pay it over in full to yourself as residuary +legatee!" repeated Tutt stubbornly, evading the issue. + +"Well, where does that leave me?" asked his client. + +"It gets you out of your difficulty, doesn't it?" asked Tutt. "Don't +borrow trouble! Don't--if you'll pardon my saying so--be an idiot!" + +There was silence for several minutes, finally broken by the lawyer who +came back again to the charge with renewed vigor. + +"Why, this sort of thing comes up all the time. Take this sort of a +case, for instance. The law only lets a man will away a certain +proportion of his property to charity--says it isn't right for him to do +so, if he leaves a family. Now suppose your father had given all his +property to charity, would you feel obliged to impoverish yourself for +the benefit of a Home for Aged Mariners?" + +"Really," replied the bewildered Payson. "I don't know. But anyway I'm +satisfied you're quite right and I'm tremendously obliged. However," he +added musingly, "I'd rather like to know who this Sadie Burch is!" + +"If I were you, young man," advised the lawyer sagely, "I wouldn't try +to find out!" + +Mr. Payson Clifford left the offices of Tutt & Tutt more recalcitrant +against fate and irritated with his family than when he had entered +them. He had found himself much less comfortably provided for than he +had expected, and the unpleasant impression created by the supposed +paternal relatives at his father's funeral had been heightened by the +letter regarding Sadie Burch. There was something even more offensively +plebeian about them than that of the vulgar Weng. It would have been bad +enough to have had to consider the propriety of paying over a large sum +to a lady calling herself by an elegant or at least debonair name like +Claire Desmond or Lillian Lamar,--but Sadie! And Burch! Ye gods! It was +ignoble, sordid. That was a fine discovery to make about one's father! + +As he walked slowly up Fifth Avenue to his hotel it must be confessed +that his reflections upon that father's memory were far from filial. He +told himself that he'd always suspected something furtive about the old +man, who must have been under most unusual and extraordinary obligations +to a woman to whom he desired his son to turn over twenty-five thousand +dollars. It was pretty nearly half of his entire fortune! Would cut down +his income from around four thousand to nearly two thousand! The more he +pondered upon the matter the more the lawyer's arguments seemed +absolutely convincing. Lawyers knew more than other people about such +things, anyway. You paid them for their advice, and he would doubtless +have to pay Tutt for his upon this very subject, which, somehow, seemed +to be rather a good reason for following it. No, he would dismiss Sadie +Burch and the letter forever from his mind. Very likely she was dead +anyway, whoever she was. Four thousand a year! Not a bad income for a +bachelor! + +And while our innocent young Launcelot trudging uptown hardened his +heart against Sadie Burch, by chance that lady figured in a short but +poignant conversation between Mr. Ephraim Tutt and Miss Minerva Wiggin +on the threshold of the room from which he had just departed. + +Miss Wiggin never trusted anybody but herself to lock up the offices, +not even Mr. Tutt, and upon this particular evening she had made this an +excuse to linger on after the others had gone home and waylay him. Such +encounters were by no means infrequent and usually had a bearing upon +the ethical aspect of some proposed course of legal procedure on the +part of the firm. + +Miss Minerva regarded Samuel Tutt as morally an abandoned and hopeless +creature. Mr. Ephraim Tutt she loved with a devotion rare among a sex +with whom devotion is happily a common trait, but there was a maternal +quality in her affection accounted for by the fact that although Mr. +Tutt was, to be sure, an old man in years, he had occasionally an +elfin, Puck-like perversity which was singularly boyish, at which times +she felt it obligatory for her own self-respect to call him to order. +Thus, whenever Tutt seemed to be incubating some evasion of law which +seemed more subtly plausible than ordinary she made it a point to call +it to Mr. Tutt's attention. Also, whenever, as in the present case, she +felt that by following the advice given by the junior member of the firm +a client was about to embark upon some dubious enterprise or +questionable course of conduct she endeavored to counteract his +influence by appealing to the head of the firm. + +During the interview between Tutt and Payson Clifford the door had been +open and she had heard all of it; moreover, after Payson had gone away +Tutt had called her in and gone over the situation with her. And she +regarded Tutt's advice to his client,--not the purely legal aspect of +it, but the personal and persuasive part of it,--as an interference with +that young gentleman's freedom of conscience. + +"Dear me!--I didn't know you were still here, Minerva!" exclaimed her +employer as she confronted him in the outer office. "Is anything +worrying you?" + +"Not dangerously!" she replied with a smile. "And perhaps it's none of +my business--" + +"My business is thy business, my dear!" he answered. "Without you Tutt & +Tutt would not be Tutt & Tutt. My junior partner may be the eyes and +legs of the firm and I may be some other portion of its anatomy, but you +are its heart and its conscience. Out with it! What rascality portends? +What bird of evil omen hovers above the offices of Tutt & Tutt? Spare +not an old man bowed down with the sorrows of this world! Has my shrewd +associate counseled the robbing of a bank or the kidnapping from a +widowed mother of her orphaned child?" + +"Nothing quite so bad as that!" she retorted. "It's merely that Mr. +Samuel Tutt used his influence this afternoon to try to persuade a young +man not to carry out his father's wishes--expressed in a legally +ineffective way--and I think he succeeded--although I'm not quite sure." + +"That must have been Payson Clifford," answered Mr. Tutt. "What were the +paternal wishes?" + +"Mr. Tutt found a letter with the will in which the father asked the son +to give twenty-five thousand dollars to a Miss Sadie Burch." + +"Miss Sadie Burch!" repeated Mr. Tutt. "And who is she?" + +"Nobody knows," said Miss Wiggin. "But whoever she is, our +responsibility stops with advising Mr. Payson Clifford that the letter +has no legal effect. Mr. Tutt went further and tried to induce Mr. +Clifford not to respect the request contained in it. That, it seems to +me, is going too far. Don't you think so?" + +"Are you certain you never heard of this Miss Burch?" suddenly asked Mr. +Tutt, peering at her sharply from beneath his shaggy eyebrows. + +"Never," she replied. + +"H'm!" ejaculated Mr. Tutt. "A woman in the case!" + +"What sort of a young fellow is this Payson Clifford?" inquired Miss +Wiggin after a moment. + +"Oh, not so much of a much!" answered Mr. Tutt whimsically. + +"And what was the father like?" she continued with a woman's curiosity. + +"He wasn't so much of a much, either, evidently," answered Mr. Tutt. + +We have previously had occasion to comment upon the fact that no client, +male or female, consults a lawyer with regard to what he ought to do. +Women, often having decided to do that which they ought not to do, +attempt to secure counsel's approval of the contemplated sin; but while +a lawyer is sometimes called upon to bolster up a guilty conscience, +rarely is he sincerely invited to act as spiritual adviser. Most men +being worse than their lawyers, prefer not to have the latter find them +out. If they have made up their minds to do a mean thing they do not +wish to run the chance of having their lawyer shame them out of it. That +is their own business. And it should be! The law presents sufficiently +perplexing problems for the lawyer without his seeking trouble in the +dubious complexities of his client's morals! Anyhow, that is the +regulation way a lawyer looks at it and that is the way to hold one's +clients. Do what you are instructed to do--so long as it isn't too raw! +Question the propriety of his course and while your client may follow +your advice in this single instance he probably will not return again. + +The paradoxical aspect of the matter with Mr. Tutt was that while he was +known as a criminal lawyer whenever he was asked for advice he concerned +himself quite as much with his client's moral as his legal duty. The +rather subtle reason for this was probably to be found in the fact that +since he found the law so easy to circumvent he preferred to disregard +it entirely as a sanction of conduct and merely to ask himself "Now is +this what a sportsman and a gentleman would do?" The fact that a man was +a technical criminal meant nothing to him at all; what interested him +was whether the man was or was not a "mean" man. If he was, to hell with +him! In a word, he applied to any given situation the law as it ought to +be and not the law as it was. A very easy and flexible test! say you, +sarcastically. Do you really think so? There may be forty different laws +upon the same subject in as many different states of our political +union, but how many differing points of view upon any single moral +question would you find among as many citizens? The moral code of decent +people is practically the same all over the terrestrial ball, and +fundamentally it has not changed since the days of Hammurabi. The ideas +of gentlemen and sportsmen as to what "is done" and "isn't done" haven't +changed since Fabius Tullius caught snipe in the Pontine marshes. + +Mr. Tutt was a crank on this general subject and he carried his +enthusiasm so far that he was always tilting like Don Quixote at some +imaginary windmill, dragging a very unwilling Sancho Panza after him in +the form of his reluctant partner. Moreover, he had a very keen sympathy +for all kinds of outcasts, deeming most of them victims of the sins of +their own or somebody's else fathers. So when he learned from Miss +Wiggin that Tutt had presumed to interfere with the financial prospects +of the unknown Miss Sadie Burch he was distinctly aggrieved, less on her +account to be sure than upon that of his client's whom he regarded more +or less in his keeping. And, as luck would have it, the object of his +grievance, having forgotten something, at that moment unexpectedly +reentered the office to retrieve it. + +"Hello, Mr. Tutt!" he exclaimed. "Not gone yet!" + +His senior partner glanced at him sharply, while Miss Wiggin hastily +sidestepped into the corridor. + +"Look here, Tutt!" said Mr. Tutt. "I don't know just what you've been +telling young Clifford, or how you've been interfering in his private +affairs, but if you've been persuading him to disregard any wish of his +father plainly expressed in his own handwriting and incorporated with +his will you've gone further than you've any right to go." + +"But," expostulated Tutt, "you know how dangerous it is to meddle with +things like that. Our experience certainly shows that it's far wiser to +let the law settle all doubtful questions than to try to guess what the +final testamentary intention of a dead testator really was. Don't you +remember the Dodworth case? A hypersensitive conscience cost our widowed +client ten thousand dollars! I say, leave well enough alone." + +"'Well enough'! 'Well enough'!" snarled Mr. Tutt. "Are you going to +constitute yourself the judge of what is well enough for a young man's +soul? I give you fair warning, Tutt: he's heard your side of it, but +before he gets through he's going to hear mine as well!" + +Samuel Tutt turned a faint pink in the region of his collar. + +"Why, certainly, Mr. Tutt!" he stammered. "Do so, by all means!" + +"You jolly well bet I will!" replied Mr. Tutt, jamming on his stovepipe. + +Several days passed, however, without the subject being mentioned +further, while the proper steps to probate the will were taken as usual. +Payson Clifford's dilemma had no legal reaction. He had made up his mind +and he was going to stick to it. He had taken the opinion of counsel and +was fully satisfied with what he had done. Nobody was going to know +anything about it, anyway. When the proper time came he would burn the +Sadie Burch letter and forget Sadie Burch. That is, he thought he was +going to and that he could. But--as Plautus says: "_Nihil est miserius +quam animus hominis conscius_." + +You see, Payson Clifford, having been sent to a decent school and a +decent college, irrespective of whether his father was a rotter or not, +had imbibed something of a sense of honor. Struggle as he would against +it, the shadow of Sadie Burch kept creeping athwart his mind. There were +so many possibilities! Suppose she was in desperate straits? Hadn't he +better look her up, anyhow? No, he most definitely didn't want to know +anything about her! Supposing she really had rendered some service to +his father for which she ought to be repaid as he had sought to repay +her? These thoughts obtruded themselves upon Payson's attention when he +least desired it, but they did not cause him to alter his intention to +get his hooks into his father's whole residuary estate and keep it for +himself. He had, you observe, a conscience, but it couldn't stand up +against twenty-five thousand dollars reinforced by perfectly sound legal +arguments. + +No, he had a good excuse for not being a gentleman and a sportsman and +he did not purpose to look for any reasons for doing differently. Then +unexpectedly he was invited to dinner by Mr. Ephraim Tutt in a funny +old ramshackle house on West Twenty-third Street with ornamented iron +piazza railings all covered with the withered stalks of long dead +wistarias, and something happened to him. "Payson Clifford's Twenty-five +Thousand Dollar Dinner." He had no suspicion, of course, what was coming +to him when he went there,--went, merely because Mr. Tutt was one of the +very few friends of his father that he knew. And he held towards the old +lawyer rather the same sort of patronizing attitude that he had had +towards the old man. It would be a rotten dinner probably followed by a +deadly dull evening with a snuffy old fossil who would tell him +long-winded, rambling anecdotes of what New York had been like when +there were wild goats in Central Park. + +The snuffy old fossil, however, made no reference whatever to either old +New York or wild goats,--the nearest he came to it being wild oats. +Instead he began the dreary evening by opening a cupboard on his library +wall and disclosing three long bottles, from which he partially filled a +shining silver receptacle containing cracked ice. This he shook with +astonishing skill and vigor, meantime uttering loud outcries of +"Miranda! Fetch up the mint!" Then a buxom colored lady in calico--with +a grin like that which made Aunt Sallie famous--having appeared, +panting, with two large glasses and a bundle of green herbage upon a +silver salver, the old fossil poured out a seething decoction--of which +like only the memory remains--performed an incantation over each glass +with the odoriferous greens, smiled fondly upon the work of his hands +and remarked with amiable hospitality, "Well, my son! Glad to see +you!--Here's how!" + +Almost immediately a benign animal magnetism pervaded the bosom of +Payson Clifford, and from his bosom reached out through his arteries and +veins, his arterioles and venioles, to the uttermost ends of his being. +He perceived in an instant that Mr. Tutt was no ordinary man and his +house no ordinary house; and this impression was intensified when, +seated at his host's shining mahogany table with its heavy cut glass and +queer old silver, he discovered that Miranda was no ordinary cook. He +began to be inflated over having discovered this Mr. Tutt, who pressed +succulent oysters and terrapin stew upon him, accompanied by a foaming +bottle of Krug '98. He found himself possessed of an astounding appetite +and a prodigious thirst. The gas lights in the old bronze chandelier +shone like a galaxy of radiant suns above his head and warmed him +through and through. And after the terrapin Miranda brought in a smoking +wild turkey with two quail roasted inside of it, and served with currant +jelly, rice cakes, and sweet potatoes fried in melted sugar. Then, as in +a dream, he heard a soul-satisfying pop and Miranda placed a tall, amber +glass at his wrist and filled it with the creaming redrose wine of +ancient Burgundy. He heard himself telling Mr. Tutt all about +himself,--the most intimate secrets of his heart,--and saw Mr. Tutt +listening attentively, almost reverently. He perceived that he was +making an astonishing impression upon Mr. Tutt who obviously thought him +a great man; and after keeping him in reasonable doubt about it for +awhile he modestly admitted to Mr. Tutt that this was so. Then he drank +several more glasses of Burgundy and ate an enormous pile of waffles +covered with maple syrup. "I'se in town, honey!" Mr. Tutt had grown +several sizes larger--the whole room was full of him. Lastly he had +black coffee and some port. It was an occasion, he asserted,--er--always +goo' weather,--or somethin'--when goo' fellows got together! He declared +with an emphasis which was quite unnecessary, but which, however, did +not disturb him, that there were too few men like themselves in the +world,--men with the advantage of education,--men of ideals. He told Mr. +Tutt that he loved him. He no longer had a father, and, evidently +relying on further similar entertainments, he wanted Mr. Tutt for one. +Mr. Tutt generously assented to act in that capacity and as the first +step assisted his guest upstairs to the library where he opened the +window a few inches. + +Presently, Payson did not know how exactly, they got talking all about +life,--and Mr. Tutt said ruminatively that after all the only things +that really counted were loyalty and courage and kindness,--and that a +little human sympathy extended even in what sometimes seemed at first +glance the wrong direction often did more good--made more for real +happiness--than the most efficient organized charity. He spoke of the +loneliness of age--the inevitable loneliness of the human soul,--the +thirst for daily affection. And then they drifted off to college, and +Mr. Tutt inquired casually if Payson had seen much of his father, who, +he took occasion to remark, had been a good type of straightforward, +honest, hard-working business man. + +Payson, smoking his third cigar, and taking now and then a dash of +cognac, began to think better of his old dad. He really hadn't paid him +quite the proper attention. He admitted it to Mr. Tutt--with the first +genuine tears in his eyes since he had left Cambridge;--perhaps, if he +had been more to him--. But Mr. Tutt veered off again--this time on +university education; the invaluable function of the university being, +he said, to preserve intact and untarnished in a materialistic age the +spiritual ideals inherited from the past. + +In this rather commonplace sentiment Payson agreed with him +passionately. He further agreed with equal enthusiasm when his host +advanced the doctrine that after all to preserve one's honor stainless +was the only thing that much mattered. Absolutely! declared Payson, as +he allowed Mr. Tutt to press another glass of port upon him. + +Payson, in spite of the slight beading of his forehead and the blurr +about the gas jets, began to feel very much the man of the world,--not a +"six bottle man" perhaps, but--and he laughed complacently--a "two +bottle man." If he'd lived back in the good old sporting days very +likely he could have done better. But he's taken care of two full +bottles, hadn't he? Mr. Tutt replied that he'd taken care of them very +well indeed. And with this opening the old lawyer launched into his +favorite topic,--to wit, that there were only two sorts of men in the +world--gentlemen, and those who were not. What made a man a gentleman +was gallantry and loyalty,--the readiness to sacrifice everything--even +life--to an ideal. The hero was the chap who never counted the cost to +himself. That was why people revered the saints, acclaimed the cavalier, +and admired the big-hearted gambler who was ready to stake his fortune +on the turn of a card. There was even, he averred, an element of +spirituality in the gambler's carelessness about money. + +This theory greatly interested Payson, who held strongly with it, having +always had a secret, sneaking fondness for gamblers. On the strength of +it he mentioned Charles James Fox--there was a true gentleman and +sportsman for you! No mollycoddle--but a roaring, six bottle +fellow--with a big brain and a scrupulous sense of honor. Yes, sir! +Charley Fox was the right sort! He managed to intimate successfully that +Charley and he were very much the same breed of pup. At this point Mr. +Tutt, having carefully committed his guest to an ethical standard as far +removed as possible from one based upon self-interest, opened the window +a few more inches, sauntered over to the mantel, lit a fresh stogy and +spread his long legs in front of the sea-coal fire like an elongated +Colossus of Rhodes. He commenced his dastardly countermining of his +partner's advice by complimenting Payson on being a man whose words, +manner and appearance proclaimed him to the world a true sport and a +regular fellow. From which flattering prologue he slid naturally into +said regular fellow's prospects and aims in life. He trusted that Payson +Clifford, Senior, had left a sufficient estate to enable Payson, Junior, +to complete his education at Harvard?--He forgot, he confessed just what +the residue amounted to. Then he turned to the fire, kicked it, knocked +the ash off the end of his stogy and waited--in order to give his guest +a chance to come to himself,--for Mr. Payson Clifford had suddenly +turned a curious color, due to the fact that he was unexpectedly +confronted with the necessity of definitely deciding then and there +whether he was going to line up with the regular fellows or the second +raters, the gentlemen or the cads, the C.J. Foxes or the Benedict +Arnolds of mankind. He wasn't wholly the real thing, a conceited young +ass, if you choose, but on the other hand he wasn't by any means a bad +sort. In short, he was very much like all the rest of us. And he wasn't +ready to sign the pledge just yet. He realized that he had put himself +at a disadvantage, but he wasn't going to commit himself until he had +had a good chance to think it all over carefully. In thirty seconds he +was sober as a judge--and a sober judge at that. + +"Mr. Tutt," he said in quite a different tone of voice. "I've been +talking pretty big, I guess,--bigger than I really am. The fact is I've +got a problem of my own that's bothering me a lot." + +Mr. Tutt nodded understandingly. + +"You mean Sadie Burch." + +"Yes." + +"Well, what's the problem? Your father wanted you to give her the money, +didn't he?" + +Payson hesitated. What he was about to say seemed so disingenuous, even +though it had originated with Tutt & Tutt. + +"How do I know really what he wanted? He may have changed his mind a +dozen times since he put it with his will." + +"If he had he wouldn't have left it there, would he?" asked Mr. Tutt +with a smile. + +"But perhaps he forgot all about it,--didn't remember that it was +there," persisted the youth, still clinging desperately to the lesser +Tutt. "And, if he hadn't would have torn it up." + +"That might be equally true of the provisions of his will, might it +not?" countered the lawyer. + +"But," squirmed Payson, struggling to recall Tutt's arguments, +previously so convincing, "he knew how a will ought to be executed and +as he deliberately neglected to execute the paper in a legal fashion, +isn't it fair to presume that he did not intend it to have any legal +force?" + +"Yes," replied Mr. Tutt with entire equanimity, "I agree with you that +it is fair to assume that he did not intend it to have any legal +effect." + +"Well, then!" exclaimed Payson exultantly. + +"But," continued the lawyer, "that does not prove that he did not intend +it to have a moral effect,--and expect you to honor and respect his +wishes, just as if he had whispered them to you with his dying breath." + +There was something in his demeanor which, while courteous, had a touch +of severity, that made Payson feel abashed. He perceived that he could +not afford to let Mr. Tutt think him a cad,--when he was really a C.J. +Fox. And in his mental floundering his brain came into contact with the +only logical straw in the entire controversy. + +"Ah!" he said with an assumption of candor. "In that case I should know +positively that they were in fact my father's wishes." + +"Exactly!" replied Mr. Tutt. "And you'd carry them out without a +moment's hesitation." + +"Of course!" yielded Payson. + +"Then the whole question is whether or not this paper does express a +wish of his. That problem is a real problem, and it is for you alone to +solve,--and, of course, you're under the disadvantage of having a +financial interest in the result, which makes it doubly hard." + +"All the same," maintained the boy, "I want to be fair to myself." + +"--And to him," added Mr. Tutt solemnly. "The fact that this wish is not +expressed in such a way as to be legally obligatory makes it all the +more binding. In a way, I suppose, that is your hard luck. You might, +perhaps, fight a provision in the will. You can't fight this--or +disregard it, either." + +"I don't exactly see why this is any _more_ binding than a provision in +the will itself!" protested Payson. + +Mr. Tutt threw his stogy into the fire and fumbled for another in the +long box on the library table. + +"Maybe it isn't," he conceded, "but I've always liked that specious +anecdote attributed to Sheridan who paid his gambling debts and let his +tailor wait. You remember it, of course? When the tailor demanded the +reason for this Sheridan told him that a gambling debt was a debt of +honor and a tailor's bill was not, since his fortunate adversary at the +card table had only his promise to pay, whereas the tailor possessed an +action for an account which he could prosecute in the courts. + +"'In that case!' declared the tailor, 'I'll tear up my bill!' which he +did, and Sheridan thereupon promptly paid him. Have another nip of +brandy?" + +"No, thank you!" answered Payson. "It's getting late and I must be +going. I've--I've had a perfectly--er--ripping time!" + +"You must come again soon!" said Mr. Tutt warmly, from the top of the +steps outside. + +As Payson reached the sidewalk he looked back somewhat shamefacedly and +said: + +"Do you think it makes any difference what sort of a person this Sadie +Burch is?" + +In the yellow light of the street lamp it seemed to the collegian as if +the face of the old man bore for an instant a fleeting resemblance to +that of his father. + +"Not one particle!" he answered. "Good night, my boy!" + +But Payson Clifford did not have a good night by any manner of means. +Instead of returning to his hotel he wandered aimless and miserable +along the river front. He no longer had any doubt as to his duty. Mr. +Tutt had demolished Tutt in a breath,--and put the whole proposition +clearly. Tutt had given, as it were, and Mr. Tutt had taken away. +However, he told himself, that wasn't all there was to it; the money was +his in law and no one could deprive him of it. Why not sit tight and let +Mr. Tutt go to the devil? He need never see him again! And no one else +would ever know! Twenty-five thousand dollars? It would take him years +to earn such a staggering sum! Besides, there were two distinct sides to +the question. Wasn't Tutt just as good a lawyer as Mr. Tutt? Couldn't he +properly decide in favor of himself when the court was equally divided? +And Tutt had said emphatically that he would be a fool to surrender the +money. As Payson Clifford trudged along the shadows of the docks he +became obsessed with a curious feeling that Tutt and Mr. Tutt were both +there before him; Mr. Tutt--a tall, benevolent figure carrying a torch +in the shape of a huge, black, blazing stogy that beckoned him onward +through the darkness; and behind him Tutt--a little paunchy red devil +with horns and a tail--who tweaked him by the coat and twittered, "Don't +throw away twenty-five thousand dollars! The best way is to leave +matters as they are and let the law settle everything. Then you take no +chances!" + +But in the end--along about a quarter to seven A.M.--Mr. Tutt won. +Exhausted, but at peace with himself, Payson Clifford stumbled into the +Harvard Club on Forty-fourth Street, ordered three fried eggs done on +one side, two orders of bacon and a pot of coffee, and then wrote a +letter which he dispatched by a messenger to Tutt & Tutt. + +"Gentlemen," it read: "Will you kindly take immediate steps to find Miss +Sarah Burch and pay over to her twenty-five thousand dollars from my +father's residuary estate. I am entirely satisfied that this was his +wish. I am returning to Cambridge to-day. If necessary you can +communicate with me there. + +"Yours very truly, + +"PAYSON CLIFFORD." + + * * * * * + +One might suppose that a legatee to twenty-five thousand dollars could +be readily found; but Miss Sadie Burch proved a most elusive person. No +Burches grew in Hoboken--according to either the telephone or the +business directory--and Mr. Tutt's repeated advertisements in the +newspapers of that city elicited no response. Three months went by and +it began to look as if the lady had either died or permanently absented +herself--and that Payson Clifford might be able to keep his twenty-five +thousand with a clear conscience. Then one day in May came a letter from +a small town in the central part of New Jersey from Sadie Burch. She +had, she said, only just learned entirely by accident that she was an +object of interest to Messrs. Tutt & Tutt. Unfortunately, it was not +convenient for her to come to New York City, but if she could be of any +service to them she would be pleased, etc. + +"I think I'll give the lady the once-over!" remarked Mr. Tutt, as he +looked across the glittering bay to the shadowy hills of New Jersey. +"It's a wonderful day, and there isn't much to do here...." + + * * * * * + +"Sadie Burch? Sadie Burch? Sure, I know her!" answered the lanky man +driving the flivver tractor nearby, as he inspected the motor carrying +Mr. Tutt. "She lives in the second house beyond the big elm--" and he +started plowing again with a great clatter. + +The road glared white in the late afternoon sun. On either side +stretched miles of carefully cultivated fields, the country drowsed, the +air hot, but sweet with magnolia, lilac and apple blossoms. Miss Burch +had obviously determined that when she retired from the world of men she +would make a thorough job of it and expose herself to no temptation to +return--eight miles from the nearest railroad. Just beyond the elms they +slowed up alongside a white picket fence enclosing an old-fashioned +garden whence came to Mr. Tutt the busy murmur of bees. Then they came +to a gate that opened upon a red-tiled, box-bordered, moss-grown walk, +leading to a small white house with blue and white striped awnings. A +green and gold lizard poked its head out of the hedge and eyed Mr. Tutt +rather with curiosity than hostility. + +"Does Miss Sadie Burch live here?" asked Mr. Tutt of the lizard. + +"Yes!" answered a cheerful female voice from the veranda. "Won't you +come up on the piazza?" + +The voice was not the kind of voice Mr. Tutt had imagined as belonging +to Sadie Burch. But neither was the lady on the piazza that kind of +lady. In the shadow of the awning in a comfortable rocking chair sat a +white-haired, kindly-faced woman, knitting a baby jacket. She looked up +at him with a friendly smile. + +"I'm Miss Burch," she said. "I suppose you're that lawyer I wrote to? +Won't you come up and sit down?" + +"Thanks," he replied, drawing nearer with an answering smile. "I can +only stay a few moments and I've been sitting in the motor most of the +day. I might as well come to the point at once. You have doubtless heard +of the death of Mr. Payson Clifford, Senior?" + +Miss Burch laid down the baby-jacket and her lips quivered. Then the +tears welled in her faded blue eyes and she fumbled hastily in her bosom +for her handkerchief. + +"You must excuse me!" she said in a choked voice. "--Yes, I read about +it. He was the best friend I had in the world,--except my brother John. +The kindest, truest friend that ever lived!" + +She looked out across the little garden and wiped her eyes again. + +Mr. Tutt sat down upon the moss-covered door-step beside her. + +"I always thought he was a good man," he returned quietly. "He was an +old client of mine--although I didn't know him very well." + +"I owe this house to him," continued Miss Burch tenderly. "If it hadn't +been for Mr. Clifford I don't know what would have become of me. Now +that John is dead and I'm all alone in the world this little +place--with the flowers and the bees--is all I've got." + +They were silent for several moments. Then Mr. Tutt said: + +"No, it isn't all. Mr. Clifford left a letter with his will in which he +instructed his son to pay you twenty-five thousand dollars. I'm here to +give it to you." + +A puzzled look came over her face, and then she smiled again and shook +her head. + +"That was just like him!" she remarked. "But it's all a mistake. He paid +me back that money five years ago. You see he persuaded John to go into +some kind of a business scheme with him and they lost all they put into +it--twenty-five thousand apiece. It was all we had. It wasn't his fault, +but after John died Mr. Clifford made me--simply made me--let him give +the money back. He must have written the letter before that and +forgotten all about it!" + + + + +You're Another! + + + "We have strict statutes, and most biting laws." + Measure for Measure, Act I, Scene 4. + + "I am further of opinion that it would be better for us to have [no + laws] at all than to have them in so prodigious numbers as we have." + + Montaigne. Of Experience, Chapter XIII. + +Mrs. Pierpont Pumpelly, lawful spouse of Vice President Pumpelly, of +Cuban Crucible, erstwhile of Athens, Ohio, was fully conscious that even +if she wasn't the smartest thing on Fifth Avenue, her snappy little car +was. It was, as she said, a "perfec' beejew!" The two robes of silver +fox alone had cost eighty-five hundred dollars, but that was nothing; +Mrs. Pumpelly--in her stockings--cost Pierpont at least ten times that +every year. But he could afford it with Cruce at 791. So, having moved +from Athens to the metropolis, they had a glorious time. Out home the +Pierpont had been simply a P. and no questions asked as to what it stood +for; P. Pumpelly. But whatever its past the P. had now blossomed +definitely into Pierpont. + +Though the said Pierpont produced the wherewithal, it was his wife, +Edna, who attended to the disbursing of it. She loved her husband, but +regarded him socially as somewhat of a liability, and Society was now, +as she informed everybody, her "meal yure." + +She had eaten her way straight through the meal--opera box, pew at St. +Simeon Stylites, Crystal Room, musicales, Carusals, hospital +entertainments, Malted Milk for Freezing France, Inns for Indigent +Italians, Biscuits for Bereft Belgians, dinner parties, lunch parties, +supper parties, the whole thing; and a lot of the right people had come, +too. + +The fly in the ointment of her social happiness--and unfortunately it +happened to be an extremely gaudy butterfly indeed--was her next-door +neighbor, Mrs. Rutherford Wells, who obstinately refused to recognize +her existence. + +At home, in Athens, Edna would have resorted to the simple expedient of +sending over the hired girl to borrow something. But here there was +nothing doing. Mrs. Rutherford had probably never seen her own chef and +Mrs. Pumpelly was afraid of hers. Besides, even Edna recognized the +lamentable fact that it was up to Mrs. Wells to call first, which she +didn't. Once when the ladies had emerged simultaneously from their +domiciles Mrs. Pumpelly had smilingly waddled forward a few steps with +an ingratiating bow, but Mrs. Wells had looked over her head and hadn't +seen her. + +Thereupon the iron had entered into Mrs. Pumpelly's soul and her life +had become wormwood and gall, ashes in her mouth and all the rest of it. +She proposed to get even with the cat at the very first chance, but +somehow the chance never seemed to come. She hated to be living on the +same street with that kind of nasty person. And who was this Wells +woman? Her husband never did a thing except play croquet or something at +a club! He probably was a drunkard--and a roo-ay. Mrs. Pumpelly soon +convinced herself that Mrs. Wells also must be a very undesirable, if +not hopelessly immoral lady. Anyhow, she made up her mind that she would +certainly take nothing further from her. Even if Mrs. Wells should have +a change of heart and see fit to call, she just wouldn't return it! So +when she rolled up in the diminutive car and found Mrs. Wells' lumbering +limousine blocking the doorway she was simply furious. + +"Make that man move along!" she directed, and Jules honked and honked, +but the limousine did not budge. + +Then Mrs. Pumpelly gave way to a fit of indignation that would have done +her proud even in Athens, Ohio. Fire-breathing, she descended from her +car and, approaching the limousine, told the imperturbable chauffeur +that even if he did work for Mrs. Rutherford Wells, Mrs. Rutherford +Wells was no better than anybody else, and that gave him no right to +block up the whole street. She spoke loudly, emphatically, angrily, and +right in the middle of it the chauffeur, who had not deigned to look in +her direction, slyly pressed the electric button of his horn and caused +it to emit a low scornful grunt. Then a footman opened the door of the +Wells mansion and Mrs. Rutherford Wells herself came down the steps, and +Mrs. Pumpelly told her to her face exactly what she thought of her and +ordered her to move her car along so her own could get in front of the +vestibule. + +Mrs. Wells ignored her. Deliberately--and as if there were no such +person as Mrs. Pumpelly upon the sidewalk--she stepped into her motor +and, the chauffeur having adjusted the robe, she remarked in a casual, +almost indifferent manner that nevertheless made Mrs. Pumpelly squirm, +"Go to Mr. Hepplewhite's, William. Pay no attention to that woman. If +she makes any further disturbance call a policeman." + +And the limousine rolled away with a sneer at Mrs. Pumpelly from the +exhaust. More than one king has been dethroned for far less cause! + + * * * * * + +"You telephone Mr. Edgerton," she almost shrieked at Simmons, the +butler, "that he should come right up here as fast as he can. I've got +to see him at once!" + +"Very good, madam," answered Simmons obsequiously. + +And without more ado, in less than forty minutes, the distinguished Mr. +Wilfred Edgerton, of Edgerton & Edgerton, attorneys for Cuban Crucible +and hence alert to obey the behests of the wives of the officers +thereof, had deposited his tall silk hat on the marble Renaissance table +in the front hall and was entering Mrs. Pumpelly's Louis Quinze +drawing-room with the air of a Sir Walter Raleigh approaching his Queen +Elizabeth. + +"Sit down, Mr. Edgerton!" directed the lady impressively. "No, you'll +find that other chair more comfortable; the one you're in's got a hump +in the seat. As I was saying to the butler before you came, I've been +insulted and I propose to teach that woman she can't make small of me no +matter what it costs--and Pierpont says you're no slouch of a charger at +that." + +"My dear madam!" stammered the embarrassed attorney. "Of course, there +are lawyers and lawyers. But if you wish the best I feel sure my firm +charges no more than others of equal standing. In any event you can be +assured of our devotion to your interests. Now what, may I ask, are the +circumstances of the case?" + +"Mr. Edgerton," she began, "I just want you should listen carefully to +what I have to say. This woman next door to me here has--" + +At this point, as paper is precious and the lady voluble, we will drop +the curtain upon the first act of our legal comedy. + + * * * * * + +"I suppose we'll have to do it for her!" growled Mr. Wilfred Edgerton to +his brother on his return to their office. "She's a crazy idiot and I'm +very much afraid we'll all get involved in a good deal of undesirable +publicity. Still, she's the wife of the vice president of our best +paying client!" + +"What does she want us to do?" asked Mr. Winfred, the other Edgerton. +"We can't afford to be made ridiculous--for anybody." + +This was quite true since dignity was Edgerton & Edgerton's long suit, +they being the variety of Wall Street lawyers who are said to sleep in +their tall hats and cutaways. + +"If you can imagine it," replied his brother irritably, "she insists on +our having Mrs. Wells arrested for obstructing the street in front of +her house. She asked me if it wasn't against the law, and I took a +chance and told her it was. Then she wanted to start for the police +court at once, but as I'd never been in one I said we'd have to prepare +the papers; I didn't know what papers." + +"But we can't arrest Mrs. Wells!" expostulated Mr. Winfred Edgerton. +"She's socially one of our most prominent people. I dined with her only +last week!" + +"That's why Mrs. Pumpelly wants to have her arrested, I fancy!" replied +Mr. Wilfred gloomily. "Mrs. Wells has given her the cold shoulder. It's +no use; I tried to argue the old girl out of it, but I couldn't. She +knows what she wants and she jolly well intends to have it." + +"I wish you joy of her!" mournfully rejoined the younger Edgerton. "But +it's your funeral. I can't help you. I never got anybody arrested and I +haven't the least idea how to go about it." + +"Neither have I," admitted his brother. "Luckily my practise has not +been of that sort. However, it can't be a difficult matter. The main +thing is to know exactly what we are trying to arrest Mrs. Wells for." + +"Why don't you retain Tutt & Tutt to do it for us?" suggested Winfred. +"Criminal attorneys are used to all that sort of rotten business." + +"Oh, it wouldn't do to let Pumpelly suspect we couldn't handle it +ourselves. Besides, the lady wants distinguished counsel to represent +her. No, for once we've got to lay dignity aside. I think I'll send +Maddox up to the Criminal Courts Building and have him find out just +what to do." + +It may seem remarkable that neither of the members of a high-class law +firm in New York City should ever have been in a police court, but such +a situation is by no means infrequent. The county or small-town attorney +knows his business from the ground up. He starts with assault and +battery, petty larceny and collection cases and gradually works his way +up, so to speak, to murder and corporate reorganizations. But in Wall +Street the young student whose ambition is to appear before the Supreme +Court of the United States in some constitutional matter as soon as +possible is apt to spend his early years in brief writing and then +become a specialist in real estate, corporation, admiralty or probate +law and perhaps never see the inside of a trial court at all, much less +a police court, which, to the poor and ignorant, at any rate, is the +most important court of any of them, since it is here that the citizen +must go to enforce his everyday rights. + +Mr. Wilfred Edgerton suspected that a magistrate's court was a dirty +sort of hole, full of brawling shyster lawyers, and he didn't want to +know any more about such places than he could help. Theoretically he was +aware that on a proper complaint sworn to by a person supposing himself +or herself criminally aggrieved the judge would issue a warrant to an +officer, who would execute it on the person of the criminal and hale him +or her to jail. The idea of Mrs. Wells being dragged shrieking down +Fifth Avenue or being carted away from her house in a Black Maria filled +him with dismay. + +Yet that was what Mrs. Pumpelly proposed to have done, and unfortunately +he had to do exactly what Mrs. Pumpelly said; quickly too. + +"Maddox," he called to a timid youth in a green eye-shade sitting in +lonely grandeur in the spacious library, "just run up to +the--er--magistrate's court on Blank Street and ascertain the proper +procedure for punishing a person for obstructing the highway. If you +find an appropriate statute or ordinance you may lay an information +against Mrs. Rutherford Wells for violating it this afternoon in front +of the residence next to hers; and see that the proper process issues in +the regular way." + +To hear him one would have thought he did things like that daily before +breakfast--such is the effect of legal jargon. + +"Yes, sir," answered Maddox respectfully, making a note. "Do you wish to +have the warrant held or executed?" + +Mr. Wilfred Edgerton bit his mustache doubtfully. + +"We-ell," he answered at length, perceiving that he stood upon the brink +of a legal Rubicon, "you may do whatever seems advisable under all the +circumstances." + +In his nervous condition he did not recall what, had he stopped calmly +to consider the matter, he must have known very well--namely, that no +warrant could possibly issue unless Mrs. Pumpelly, as complainant, +signed and swore to the information herself. + +"Very well, sir," answered Maddox, in the same tone and manner that he +would have used had he been a second footman at Mrs. Pumpelly's. + +Thereafter both Edgertons, but particularly Wilfred, passed a miserable +hour. They realized that they had started something and they had no idea +of where, how or when what they had started would stop. Indeed they had +terrifying visions of Mrs. Wells being beaten into insensibility, if not +into a pulp, by a cohort of brutal police officers, and of their being +held personally responsible. But before anything of that sort actually +happened Maddox returned. + +"Well," inquired Wilfred with an assumption of nonchalance, "what did +you find out?" + +"The magistrate said that we would have to apply at the court in the +district where the offense occurred and that Mrs. Pumpelly would have to +appear there in person. Obstructing a highway is a violation of Section +Two of Article Two of the Police Department Regulations for Street +Traffic, which reads: 'A vehicle waiting at the curb shall promptly give +way to a vehicle arriving to take up or set down passengers.' It is not +usual to issue a warrant in such cases, but a summons merely." + +"Ah!" sighed both Edgertons in great relief. + +"Upon which the defendant must appear in default of fine or +imprisonment," continued Maddox. + +The two lawyers looked at one another inquiringly. + +"Did they treat you--er--with politeness?" asked Wilfred curiously. + +"Oh, well enough," answered the clerk. "I can't say it's a place I +hanker to have much to do with. It's not like an afternoon tea party. +But it's all right. Do you wish me to do anything further?" + +"Yes!" replied Wilfred with emphasis, "I do. I wish you would go right +up to Mrs. Pumpelly's house, conduct that lady to the nearest police +court and have her swear out the summons for Mrs. Wells herself. I'll +telephone her that you are coming." + +Which was a wise conclusion, in view of the fact that Edna Pumpelly, née +Haskins, was much better equipped by nature to take care of Mr. Wilfred +Edgerton in the hectic environs of a police court than he was qualified +to take care of her. And so it was that just as Mrs. Rutherford Wells +was about to sit down to tea with several fashionable friends her butler +entered, bearing upon a salver a printed paper, which he presented to +her, in manner and form the following: + + CITY MAGISTRATE'S COURT, CITY OF NEW YORK + + In the name of the people of the State of New York To "Jane" Wells, + the name "Jane" being fictitious: + + You are hereby summoned to appear before the ------ District + Magistrate's Court, Borough of Manhattan, City of New York, on the + eighth day of May, 1920, at ten o'clock in the forenoon, to answer + the charge made against you by Edna Pumpelly for violation of + Section Two, Article Two of the Traffic Regulations providing that a + vehicle waiting at the curb shall promptly give way to a vehicle + arriving to take up or set down passengers, and upon your failure to + appear at the time and place herein mentioned you are liable to a + fine of not exceeding fifty dollars or to imprisonment of not + exceeding ten days or both. + + Dated 6th day of May, 1920. + + JAMES CUDDAHEY, Police Officer, + + Police Precinct ------, New York City. + + Attest: JOHN J. JONES, Chief City Magistrate. + +"Heavens!" cried Mrs. Wells as she read this formidable document. "What +a horrible woman! What shall I do?" + +Mr. John De Puyster Hepplewhite, one of the nicest men in New York, who +had himself once had a somewhat interesting experience in the criminal +courts in connection with the arrest of a tramp who had gone to sleep in +a pink silk bed in the Hepplewhite mansion on Fifth Avenue, smiled +deprecatingly, set down his Dresden-china cup and dabbed his mustache +decorously with a filigree napkin. + +"Dear lady," he remarked with conviction, "in such distressing +circumstances I have no hesitation whatever in advising you to consult +Mr. Ephraim Tutt." + + * * * * * + +"I have been thinking over what you said the other day regarding the +relationship of crime to progress, Mr. Tutt, and I'm rather of the +opinion that it's rot," announced Tutt as he strolled across from his +own office to that of his senior partner for a cup of tea at practically +the very moment when Mr. Hepplewhite was advising Mrs. Wells. "In the +vernacular--bunk." + +"What did he say?" asked Miss Wiggin, rinsing out with hot water Tutt's +special blue-china cup, in the bottom of which had accumulated some +reddish-brown dust from Mason & Welsby's Admiralty and Divorce Reports +upon the adjacent shelf. + +"He made the point," answered Tutt, helping himself to a piece of toast, +"that crime was--if I may be permitted to use the figure--part of the +onward urge of humanity toward a new and perhaps better social order; a +natural impulse to rebel against existing abuses; and he made the claim +that though an unsuccessful revolutionary was of course regarded as a +criminal, on the other hand, if successful he at once became a patriot, +a hero, a statesman or a saint." + +"A very dangerous general doctrine, I should say," remarked Miss Wiggin. +"I should think it all depended on what sort of laws he was rebelling +against. I don't see how a murderer could ever be regarded as assisting +in the onward urge toward sweetness and light, exactly." + +"Wouldn't it depend somewhat on whom you were murdering?" inquired Mr. +Tutt, finally succeeding in his attempt to make a damp stogy continue +in a state of combustion. "If you murdered a tyrant wouldn't you be +contributing toward progress?" + +"No," retorted Miss Wiggin, "you wouldn't; and you know it. In certain +cases where the laws are manifestly unjust, antiquated or perhaps do not +really represent the moral sense of the community their violation may +occasionally call attention to their absurdity, like the famous blue +laws of Connecticut, for example; but as the laws as a whole do +crystallize the general opinion of what is right and desirable in +matters of conduct a movement toward progress would be exhibited not by +breaking laws but by making laws." + +"But," argued Mr. Tutt, abandoning his stogy, "isn't the making of a new +law the same thing as changing an old law? And isn't changing a law +essentially the same thing as breaking it?" + +"It isn't," replied Miss Wiggin tartly. "For the obvious and simple +reason that the legislators who change the laws have the right to do so, +while the man who breaks them has not." + +"All the same," admitted Tutt, slightly wavering, "I see what Mr. Tutt +means." + +"Oh, I see what he means!" sniffed Miss Wiggin. "I was only combating +what he said!" + +"But the making of laws does not demonstrate progress," perversely +insisted Mr. Tutt. "The more statutes you pass the more it indicates +that you need 'em. An ideal community would have no laws at all." + +"There's a thought!" interjected Tutt. "And there wouldn't be any +lawyers either!" + +"As King Hal said: 'The first thing we do, let's kill all the lawyers,'" +commented Mr. Tutt. + +"Awful vision!" ejaculated Miss Wiggin. "Luckily for us, that day has +not yet dawned. However, Mr. Tutt's argument is blatantly fallacious. Of +course, the making of new laws indicates an impulse toward social +betterment--and therefore toward progress." + +"It seems to me," ventured Tutt, "that this conversation is more than +usually theoretical--not to say specious! The fact of the matter is that +the law is a part of our civilization and the state of the law marks the +stage of our development--more or less." + +Mr. Tutt smiled sardonically. + +"You have enunciated two great truths," said he. "First, that it is a +'part'; and second, 'more or less.' The law is a very small part of our +protection against what is harmful to us. It is only one of our +sanctions of conduct, and a very crude one at that. Did you ever stop to +think that compared with religion the efficacy of the law was almost +_nil_? The law deals with conduct, but only at a certain point. We are +apt to find fault with it because it makes what appear to us to be +arbitrary and unreasonable distinctions. That in large measure is +because law is only supplementary." + +"How do you mean--supplementary?" queried Tutt. + +"Why," answered his partner, "as James C. Carter pointed out, +ninety-nine per cent of all law is unwritten. What keeps most people +straight is not criminal statutes but their own sense of decency, +conscience or whatever you may choose to call it. Doubtless you recall +the famous saying of Diogenes Laertius: 'There is a written and an +unwritten law. The one by which we regulate our constitutions in our +cities is the written law; that which arises from custom is the +unwritten law.' I see that, of course you do! As I was saying only the +other day, infractions of good taste and of manners, civil wrongs, sins, +crimes--are in essence one and the same, differing only in degree. Thus +the man who goes out to dinner without a collar violates the laws of +social usage; if he takes all his clothes off and walks the streets he +commits a crime. In a measure it simply depends on how many clothes he +has on what grade of offense he commits. From that point of view the man +who is not a gentleman is in a sense a criminal. But the law can't make +a man a gentleman." + +"I should say not!" murmured Miss Wiggin. + +"Well," continued Mr. Tutt, "we have various ways of dealing with these +outlaws. The man who violates our ideas of good taste or good manners is +sent to Coventry; the man who does you a wrong is mulcted in damages; +the sinner is held under the town pump and ridden out of town on a rail, +or the church takes a hand and threatens him with the hereafter; but if +he crosses a certain line we arrest him and lock him up--either from +public spirit or for our own private ends." + +"Hear! Hear!" cried Tutt admiringly. + +"Fundamentally there is only an arbitrary distinction between wrongs, +sins and crimes. The meanest and most detestable of men, beside whom an +honest burglar is a sympathetic human being, may yet never violate a +criminal statute." + +"That's so!" said Tutt. "Take Badger, for instance." + +"How often we defend cases," ruminated his partner, "where the +complainant is just as bad as the prisoner at the bar--if not worse." + +"And of course," added Tutt, "you must admit there are a lot of +criminals who are criminals from perfectly good motives. Take the man, +for instance, who thrashes a bystander who insults his wife--the man's +wife, I mean, naturally." + +"Only in those cases where we elect to take the law into our own hands +we ought to be willing to accept the consequences like gentlemen and +sportsmen," commented the senior partner. + +"This is all very interesting, no doubt," remarked Miss Wiggin, "but as +a matter of general information I should like to know why the criminal +law doesn't punish the sinners--as well as the criminals." + +"I guess one reason," replied Tutt, "is that people don't wish to be +kept from sinning." + +"Thou hast spoken!" agreed Mr. Tutt. "And another reason is that the +criminal law was not originally devised for the purpose of eradicating +sin--which, after all, is the state into which it is said man was +born--but was only intended to prevent certain kinds of physical +violence and lawlessness--murder, highway robbery, assault, and so on. +The church was supposed to take care of sin, and there was an elaborate +system of ecclesiastical courts. In point of fact, though there is a +great deal of misconception on the subject, the criminal law does not +deal with sin as sin at all, or even with wrongs merely as wrongs. It +has a precise and limited purpose--namely, to prevent certain kinds of +acts and to compel the performance of other acts. + +"The state relies on the good taste and sense of decency, duty and +justice of the individual citizen to keep him in order most of the time. +It doesn't, or anyhow it shouldn't, attempt to deal with trifling +peccadillos; it generally couldn't. It merely says that if a man's +conscience and idea of fair play aren't enough to make him behave +himself, why, then, when he gets too obstreperous we'll lock him up. And +different generations have had entirely different ideas about what was +too obstreperous to be overlooked. In the early days the law only +punished bloodshed and violence. Later on, its scope was increased, +until thousands of acts and omissions are now made criminal by statute. +But that explains why the fact that something is a sin doesn't +necessarily mean that it is a crime. The law is artificial and not +founded on any general attempt to prohibit what is unethical, but simply +to prevent what is immediately dangerous to life, limb and property." + +"Which, after all, is a good thing--for it leaves us free to do as we +choose so long as we don't harm anybody else," said Miss Wiggin. + +"Yet," her employer continued, "unfortunately--or perhaps fortunately +from our professional point of view--our lawmakers from time to time get +rather hysterical and pass such a multiplicity of statutes that nobody +knows whether he is committing crime or not." + +"In this enlightened state," interposed Tutt, "it's a crime to advertise +as a divorce lawyer; to attach a corpse for payment of debt; to board a +train while it is in motion; to plant oysters without permission; or +without authority wear the badge of the Patrons of Husbandry." + +"Really, one would have to be a student to avoid becoming a criminal," +commented Miss Wiggin. + +Mr. Tutt rose and, looking along one of the shelves, took down a volume +which he opened at a point marked by a burned match thrust between the +leaves. + +"My old friend Joseph H. Choate," he remarked, "in his memorial of his +partner, Charles H. Southmayde, who was generally regarded as one of the +greatest lawyers of our own or any other generation, says, 'The +ever-growing list of misdemeanors, created by statute, disturbed him, +and he even employed counsel to watch for such statutes introduced into +the legislature--mantraps, as he called them--lest he might, without +knowing it, commit offenses which might involve the penalty of +imprisonment.'" + +"We certainly riot in the printed word," said Miss Wiggin. "Do you know +that last year alone to interpret all those statutes and decide the +respective rights of our citizens the Supreme Court of this state wrote +five thousand eight hundred pages of opinion?" + +"Good Lord!" ejaculated Tutt. "Is that really so?" + +"Of course it is!" she answered. + +"But who reads the stuff?" demanded the junior partner. "I don't!" + +"The real lawyers," replied Miss Wiggin innocently. + +"The judges who write them probably read them," declared Mr. Tutt. "And +the defeated litigants; the successful ones merely read the final +paragraphs." + +"But coming back to crime for a moment," said Miss Wiggin, pouring +herself out a second cup of tea; "I had almost forgotten that the +criminal law was originally intended only to keep down violence. That +explains a lot of things. I confess to being one of those who +unconsciously assumed that the law is a sort of official Mrs. Grundy." + +"Not at all! Not at all!" corrected Mr. Tutt. "The law makes no pretense +of being an arbiter of morals. Even where justice is concerned it +expects the mere sentiment of the community to be capable of dealing +with trifling offenses. The laws of etiquette and manners, devised for +'the purpose of keeping fools at a distance,' are reasonably adapted to +enforcing the dictates of good taste and to dealing with minor offenses +against our ideas of propriety." + +"I wonder," hazarded Miss Wiggin thoughtfully, "if there isn't some +sociological law about crimes, like the law of diminishing returns in +physics?" + +"The law of what?" + +"Why, the law that the greater the force or effort applied to anything," +she explained a little vaguely, "the greater the resistance becomes, +until the effort doesn't accomplish anything; increased speed in a +warship, for instance." + +"What's that got to do with crime?" + +"Why, the more statutes you pass and more new crimes you create the +harder it becomes to enforce obedience to them, until finally you can't +enforce them at all." + +"That is rather a profound analogy," observed Mr. Tutt. "It might well +repay study." + +"Miss Wiggin has no corner on analogies," chirped Tutt. "Passing +statutes creating new crimes is like printing paper money without +anything back of it; in the one case there isn't really any more money +than there was before and in the other there isn't really any more crime +either." + +"Only it makes more business for us." + +"I've got another idea," continued Tutt airily, "and that is that crime +is a good thing. Not because it means progress or any bunk like that, +but because unless you had a certain amount of crime, and also criminal +lawyers to attack the law, the state would never find out the weaknesses +in its statutes. Therefore the more crime there is the more the +protective power of the state is built up, just as the fever engendered +by vaccine renders the human body immune from smallpox! Eh, what?" + +"I never heard such nonsense!" exclaimed Miss Wiggin. "Do let me give +you some more tea! Eh, what?" + +But at that moment Willie announced that Mr. Rutherford Wells was +calling to see Mr. Tutt and tea was hastily adjourned. Half an hour +later the old lawyer rang for Bonnie Doon. + +"Bonnie," he said, "one of our clients has been complained against by +her next-door neighbor, a got-rich-quick lady, for obstructing the +street with her motor. It's obviously a case of social envy, hatred and +malice. Just take a run up there in the morning, give Mrs. Pierpont +Pumpelly and her premises the once-over and let me know of any +violations you happen to observe. I don't care how technical they are, +either." + +"All right, Mr. Tutt," answered Bonnie. "I get you. Isn't there a new +ordinance governing the filling of garbage cans?" + +"I think there is," nodded Mr. Tutt. "And meantime I think I'll drop +over and see Judge O'Hare." + + * * * * * + +"I'll settle her hash for her, the hussy!" declared Mrs. Pumpelly to +her husband at dinner the following evening. "I'll teach her to insult +decent people and violate the law. Just because her husband belongs to a +swell club she thinks she can do as she likes! But I'll show her! Wait +till I get her in court to-morrow!" + +"Well, of course, Edna, I'll stand back of you and all that," Pierpont +assured her. "No, thank you, Simmons, I don't wish any more 'voly vong.' +But I'd hate to see you get all messed up in a police court!" + +"Me--messed up!" she exclaimed haughtily. "I guess I can take care of +myself most anywheres--good and plenty!" + +"Of course you can, dearie!" he protested in a soothing tone. "But these +shyster lawyers who hang around those places--you 'member Jim O'Leary +out home to Athens? Well, they don't know a lady when they see one, and +they wouldn't care if they did; and they'll try and pry into your past +life--" + +"I haven't got any past life, and you know it too, Pierpont Pumpelly!" +she retorted hotly. "I'm a respectable, law-abidin' woman, I am. I never +broke a law in all my days--" + +"Excuse me, madam," interposed Simmons, with whom the second footman had +just held a whispered conference behind the screen, "but James informs +me that there is a police hofficer awaiting to see you in the front +'all." + +"To see me?" ejaculated Mrs. Pumpelly. + +"Yes, madam." + +"I suppose it's about to-morrow. Tell him to call round about nine +o'clock in the morning." + +"'E says 'e must see you to-night, ma'am," annotated James excitedly. +"And 'e acted most hobnoxious to me!" + +"Oh, he acted obnoxious, did he?" remarked Mrs. Pumpelly airily. "What +was he obnoxious about?" + +"'E 'as a paper 'e says 'e wants to serve on you personal," answered +James in agitation. "'E says if you will hallow 'm to step into the +dining-room 'e won't take a minute." + +"Perhaps we'd better let him come in," mildly suggested Pierpont. "It's +always best to keep on good terms with the police." + +"But I haven't broken any law," repeated Mrs. Pumpelly blankly. + +"Maybe you have without knowin' it," commented her husband. + +"Why, Pierpont Pumpelly, you know I never did such a thing!" she +retorted. + +"Well, let's have him in, anyway," he urged. "I can't digest my food +with him sitting out there in the hall." + +Mrs. Pumpelly took control of the situation. + +"Have the man in, Simmons!" she directed grandly. + +And thereupon entered Officer Patrick Roony. Politely Officer Roony +removed his cap, politely he unbuttoned several yards of blue overcoat +and fumbled in the caverns beneath. Eventually he brought forth a square +sheet of paper--it had a certain familiarity of aspect for Mrs. +Pumpelly--and handed it to her. + +"Sorry to disturb you, ma'am," he apologized, "but I was instructed to +make sure and serve you personal." + +"That's all right! That's all right!" said Pierpont with an effort at +bonhomie. "The--er--butler will give you a highball if you say so." + +"Oh, boy, lead me to it!" murmured Roony in the most approved manner of +East Fourteenth Street. "Which way?" + +"Come with me!" intoned Simmons with the exalted gesture of an +archbishop conducting an ecclesiastical ceremonial. + +"What does it say?" asked her husband hurriedly as the butler led the +cop to it. + +"Sh-h!" warned Mrs. Pumpelly. "James, kindly retire!" + +James retired, and the lady examined the paper by the tempered light of +the shaded candles surrounding what was left of the "voly vong." + +"Who ever heard of such a thing?" she cried. "Just listen here, +Pierpont!" + +"CITY MAGISTRATE'S COURT, CITY OF NEW YORK + +"In the name of the people of the State of New York + +"To 'Maggie' Pumpelly, the name 'Maggie' being fictitious: + +"You are hereby summoned to appear before the ------ District +Magistrate's Court, Borough of Manhattan, City of New York, on the tenth +day of May, 1920, at ten o'clock in the forenoon, to answer to the +charge made against you by William Mulcahy for violation of Section One, +Article Two, of the Police Traffic Regulations in that on May 7, 1920, +you permitted a vehicle owned or controlled by you to stop with its left +side to the curb on a street other than a one-way traffic street; and +also for violation of Section Seventeen, Article Two of Chapter +Twenty-four of the Code of Ordinances of the City of New York in that on +the date aforesaid, being the owner of a vehicle subject to Subdivision +One of said section and riding therein, you caused or permitted the same +to proceed at a rate of speed greater than four miles an hour in turning +corner of intersecting highways, to wit, Park Avenue and Seventy-third +Street; and upon your failure to appear at the time and place herein +mentioned you are liable to a fine of not exceeding fifty dollars or to +imprisonment of not exceeding ten days or both. + +"Dated 7th day of May, 1920. + +"PATRICK ROONY, Police Officer, + +"Police Precinct ----, + +"New York City. + +"Attest: JOHN J. JONES, + +"Chief City Magistrate." + +"Well, I never!" she exploded. "What rubbish! Four miles an hour! And +'Maggie'--as if everybody didn't know my name was Edna!" + +"The whole thing looks a bit phony to me!" muttered Pierpont, worried +over the possibility of having wasted a slug of the real thing on an +unreal police officer. "Perhaps that feller wasn't a cop at all!" + +"And who's William Mul-kay-hay?" she continued. "I don't know any such +person! You better call up Mr. Edgerton right away and see what the law +is." + +"I hope he knows!" countered Mr. Pumpelly. "Four miles an hour--that's a +joke! A baby carriage goes faster than four miles an hour. You wouldn't +arrest a baby!" + +"Well, call him up!" directed Mrs. Pumpelly. "Tell him he should come +right round over here." + +The summons from his client interrupted Mr. Edgerton in the middle of an +expensive dinner at his club and he left it in no good humor. He didn't +like being ordered round like a servant the way Mrs. Pumpelly was +ordering him. It wasn't dignified. Moreover, a lawyer out of his office +was like a snail out of its shell--at a distinct disadvantage. You +couldn't just make an excuse to step into the next office for a moment +and ask somebody what the law was. The Edgertons always kept somebody in +an adjoining office who knew the law--many lawyers do. + +On the Pumpelly stoop the attorney found standing an evil-looking and +very shabby person holding a paper in his hand, but he ignored him until +the grilled iron _cinquecento_ door swung open, revealing James, the +retiring second man. + +Then, before he could enter, the shabby person pushed past him and asked +in a loud, vulgar tone: "Does Edna Pumpelly live here?" + +James stiffened in the approved style of erect vertebrata. + +"This is Madame Pierpont Pumpelly's residence," he replied with hauteur. + +"Madam or no madam, just slip this to her," said the shabby one. "Happy +days!" + +Mr. Wilfred Edgerton beneath the medieval tapestry of the Pumpelly +marble hall glanced at the dirty sheet in James' hand and, though +unfamiliar with the form of the document, perceived it to be a summons +issued on the application of one Henry J. Goldsmith and returnable next +day, for violating Section Two Hundred and Fifteen of Article Twelve of +Chapter Twenty of the Municipal Ordinances for keeping and maintaining a +certain bird, to wit, a cockatoo, which by its noise did disturb the +quiet and repose of a certain person in the vicinity to the detriment +of the health of such person, to wit, Henry J. Goldsmith, aforesaid, and +upon her failure to appear, and so on. + +Wilfred had some sort of vague idea of a law about keeping birds, but he +couldn't exactly recall what it was. There was something incongruous +about Mrs. Pierpont Pumpelly keeping a cockatoo. What did anybody want +of a cockatoo? He concluded that it must be an ancestral hereditament +from Athens, Ohio. Nervously he ascended the stairs to what Edna called +the saloon. + +"So you've come at last!" cried she. "Well, what have you got to say to +this? Is it against the law to go round a corner at more than four miles +an hour?" + +Now, whereas Mr. Wilfred Edgerton could have told Mrs. Pumpelly the +"rule in Shelly's case" or explained the doctrine of _cy pres_, he had +never read the building code or the health ordinances or the traffic +regulations, and in the present instance the latter were to the point +while the former were not. Thus he was confronted with the disagreeable +alternative of admitting his ignorance or bluffing it through. He chose +the latter, unwisely. + +"Of course not! Utter nonsense!" replied he blithely. "The lawful rate +of speed is at least fifteen miles an hour." + +"Excuse me, madam," said James, appearing once more in the doorway. "A +man has just left this--er--paper at the area doorway." + +Mrs. Pumpelly snatched it out of his hand. + +"Well, of all things!" she gasped. + +"To 'Bridget' Pumpelly," it began, "said first name 'Bridget' being +fictitious: + +"You are hereby summoned to appear ... for violating Section Two +Hundred and Forty-eight of Article Twelve of Chapter Twenty of the +Health Ordinances in that you did upon the seventh day of May, 1920, +fail to keep a certain tin receptacle used for swill or garbage, in +shape and form a barrel, within the building occupied and owned by you +until proper time for its removal and failed to securely bundle, tie up +and pack the newspapers and other light refuse and rubbish contained +therein, and, further, that you caused and permitted certain tin +receptacles, in the shape and form of barrels, containing such swill or +garbage, to be filled to a greater height with such swill or garbage +than a line within such receptacle four inches from the top thereof." + +"Now what do you know about that?" remarked the vice president of Cuban +Crucible to the senior partner of Edgerton & Edgerton. + +"I don't know anything about it!" answered the elegant Wilfred +miserably. "I don't know the law of garbage, and there's no use +pretending that I do. You'd better get a garbage lawyer." + +"I thought all lawyers were supposed to know the law!" sniffed Mrs. +Pumpelly. "What's that you got in your hand?" + +"It's another summons, for keeping a bird," answered the attorney. + +"A bird? You don't suppose it's Moses?" she exclaimed indignantly. + +"The name of the bird isn't mentioned," said Wilfred. "But very likely +it is Moses if Moses belongs to you." + +"But I've had Moses ever since I was a little girl!" she protested. +"And no one ever complained of him before." + +"Beg pardon, madam," interposed Simmons, parting the Flemish arras, upon +which was depicted the sinking of the Spanish Armada. "Officer Roony is +back again with two more papers. 'E says it isn't necessary for him to +see you again, as once is enough, but 'e was wondering whether being as +it was rather chilly--" + +"Lead him to it!" hastily directed Pierpont, who was beginning to get a +certain amount of enjoyment out of the situation. "But tell him he +needn't call again." + +"Give 'em here!" snapped Mrs. Pumpelly, grasping the documents. "This is +a little too much! 'Lulu' this time. Fictitious as usual. Who's Julius +Aberthaw? He says I caused a certain rug to be shaken in such place and +manner that certain particles of dust passed therefrom into the public +street or highway, to wit, East Seventy-third Street, contrary to +Section Two Hundred and Fifty-three of Article Twelve of Chapter Twenty +of the Municipal Ordinances. Huh!" + +"What's the other one?" inquired her husband with a show of sympathy. + +"For violating Section Fifteen of Article Two of Chapter Twenty, in that +on May 7, 1920, I permitted a certain unmuzzled dog, to wit, a Pekingese +brown spaniel dog, to be on a public highway, to wit, East Seventy-third +Street in the City of New York. But that was Randolph!" + +"Was Randolph muzzled?" inquired Mr. Edgerton maliciously. + +"Of course not! He only weighs two pounds and a quarter!" protested Mrs. +Pumpelly. + +"He can bite all right, just the same!" interpolated Pierpont. + +"But what shall I do?" wailed Mrs. Pumpelly, now thoroughly upset. + +"Guess you'll have to take your medicine, same's other violators of the +law," commented her husband. + +"I never heard of such ridiculous laws!" + +"Ignorance of the law excuses no one!" murmured Wilfred. + +"It don't excuse a lawyer!" she snorted. "I have an idea you don't know +much more about the law--this kind of law, anyway--than I do. I bet it +is against the law to go round a corner at more than four miles! Do you +want to bet me?" + +"No, I don't!" snapped Edgerton. "What you want is a police-court +lawyer--if you're goin' in for this sort of thing." + +"My Lord! What's this now, Simmons?" she raved as the butler +deprecatingly made his appearance again with another paper. + +"I think, madam," he answered soothingly, "that it's a summons for +allowing the house man to use the hose on the sidewalk after eight A.M. +Roony just brought it." + +"H'm!" remarked Mr. Pumpelly. "Don't lead him to it again!" + +"But I wouldn't have disturbed you if it hadn't been for a young +gentleman who 'as called with another one regardin' the window boxes." + +"What about window boxes?" moaned Mrs. Pumpelly. + +"'E says," explained Simmons, "'e 'as a summons for you regardin' the +window boxes, but that if you'd care to speak to him perhaps the matter +might be adjusted--" + +"Let's see the summons!" exclaimed Wilfred, coming to life. + +"'To Edna Pumpelly,'" he read. + +"They're gettin' more polite," she commented ironically. + +"'For violating Section Two Hundred and Fifty of Article Eighteen of +Chapter Twenty-three in that you did place, keep and maintain upon a +certain window sill of the premises now being occupied by you in the +City of New York a window box for the cultivation or retention of +flowers, shrubs, vines or other articles or things without the same +being firmly protected by iron railings--'" + +"Heavens," ejaculated Mr. Pumpelly, "there'll be somebody here in a +minute complaining that I don't use the right length of shaving stick." + +"I understand," remarked Mr. Edgerton, "that in a certain Western state +they regulate the length of bed sheets!" + +"What's that for?" asked Edna with sudden interest. + +"About seeing this feller?" hurriedly continued Mr. Pumpelly. "Seems to +me they've rather got you, Edna!" + +"But what's the use seein' him?" she asked. "I'm summoned, ain't I?" + +"Why not see the man?" advised Mr. Edgerton, gladly seizing this +possibility of a diversion. "It cannot do any harm." + +"What is his name?" + +"Mr. Bonright Doon," answered Simmons encouragingly. "And he is a very +pleasant-spoken young man." + +"Very well," yielded Mrs. Pumpelly. + +Two minutes later, "Mr. Doon!" announced Simmons. + +Though the friends of Tutt & Tutt have made the acquaintance of Bonnie +Doon only casually, they yet have seen enough of him to realize that he +is an up-and-coming sort of young person with an elastic conscience and +an ingratiating smile. Indeed the Pumpellys were rather taken with his +breezy "Well, here we all are again!" manner as well as impressed by the +fact that he was arrayed in immaculate evening costume. + +"I represent Mr. Ephraim Tutt, who has been retained by your neighbor, +Mrs. Rutherford Wells, in connection with the summons which you caused +to be issued against her yesterday," he announced pleasantly by way of +introduction. "Mrs. Wells, you see, was a little annoyed by being +referred to in the papers as Jane when her proper name is Beatrix. +Besides, she felt that the offense charged against her was--so to +speak--rather trifling. However--be that as it may--she and her friends +in the block are not inclined to be severe with you if you are disposed +to let the matter drop." + +"Inclined to be severe with me!" ejaculated Mrs. Pumpelly, bristling. + +"Edna!" cautioned her husband. "Mr. Doon is not responsible." + +"Exactly. I find after a somewhat casual investigation that you have +been consistently violating a large number of city ordinances--keeping +parrots, beating rugs, allowing unmuzzled dogs at large, overfilling +your garbage cans, disregarding the speed laws and traffic regulations, +using improperly secured window boxes--" + +"Anything else?" inquired Pierpont jocularly. "Don't mind us." + +Bonnie carelessly removed from the pocket of his dress coat a sheaf of +papers. + +"One for neglecting to have your chauffeur display his metal badge on +the outside of his coat--Section Ninety-four of Article Eight of Chapter +Fourteen. + +"One for allowing your drop awnings to extend more than six feet from +the house line--Section Forty-two of Article Five of Chapter Twenty-two. + +"One for failing to keep your curbstone at a proper level--Section One +Hundred and Sixty-four of Article Fourteen of Chapter Twenty-three. + +"One for maintaining an ornamental projection on your house--a statue, I +believe, of the Goddess Venus--to project more than five feet beyond the +building line--Section One Hundred and Eighty-one of Article Fifteen of +Chapter Twenty-three. + +"One for having your area gate open outwardly instead of +inwardly--Section One Hundred and Sixty-four of Article Fourteen of +Chapter Twenty-three. + +"And one for failing to affix to the fanlight or door the street number +of your house--Section One Hundred and Ten of Article Ten of Chapter +Twenty-three. + +"I dare say there are others." + +"I'd trust you to find 'em!" agreed Mr. Pumpelly. "Now what's your +proposition? What does it cost?" + +"It doesn't cost anything at all! Drop your proceedings and we'll drop +ours," answered Bonnie genially. + +"What do you say, Edgerton?" said Pumpelly, turning to the disgruntled +Wilfred and for the first time in years assuming charge of his own +domestic affairs. + +"I should say that it was an excellent compromise!" answered the lawyer +soulfully. "There's something in the Bible, isn't there, about pulling +the mote out of your own eye before attempting to remove the beam from +anybody's else?" + +"I believe there is," assented Bonnie politely. "'You're another' +certainly isn't a statutory legal plea, but as a practical defense--" + +"Tit for tat!" said Mr. Edgerton playfully. "Ha, ha! Ha!" + +"Ha, ha! Ha!" mocked Mrs. Pumpelly, her nose high in air. "A lot of good +you did me!" + +"By the way, young man," asked Mr. Pumpelly, "whom do you say you +represent?" + +"Tutt & Tutt," cooed Bonnie, instantly flashing one of the firm's cards. + +"Thanks," said Pumpelly, putting it carefully into his pocket. "I may +need you sometime--perhaps even sooner. Now, if by any chance you'd care +for a highball--" + +"Lead me right to it!" sighed Bonnie ecstatically. + +"Me, too!" echoed Wilfred, to the great astonishment of those assembled. + + + + +Beyond a Reasonable Doubt + + + "For twelve honest men have decided the cause, + Who are judges alike of the fact and the laws." + --The Honest Jury. + +"Lastly," says Stevenson in his Letter to a Young Gentleman Who Proposes +to Embrace the Career of Art, "we come to those vocations which are at +once decisive and precise; to the men who are born with the love of +pigments, the passion of drawing, the gift of music, or the impulse to +create with words, just as other and perhaps the same men are born with +the love of hunting, or the sea, or horses, or the turning lathe. These +are predestined; if a man love the labor of any trade, apart from any +question of success or fame, the gods have called him." + +Had anybody told Danny Lowry that the gods had called him he would have +stigmatized his informant as a liar--yet they had. For apart from any +question of success or fame he had loved horses from the day when as a +baby he had first sprawled in the straw of his Uncle Mike Aherne's +livery and hitching stable in Dublin City. He had grown up to the scrape +and whiffle of the currycomb, breathing ammonia, cracking the skin of +his infantile knuckles with harness soap. Out of the love that he bore +for the beautiful dumb brutes grew an understanding that in time became +almost uncanny. All the jockeys and hostlers said there was magic in +the lad's hands. He could ride anything on hoofs with a slack rein; and +the worst biter in the stable would take a bridle from him as it were an +apple. + +"Oft, now, I hear him talkin' to 'em, so I do." Mike Aherne was wont to +say between spits. "An' they know what he says, I'm tellin' ye. He's a +charmer, he is; like the Whisperin' Blacksmith. You've heard tell of +him, belike? Well, Danny can spake to 'em widout even a whisper, so he +can that!" + +That was near seventy years agone, and now Danny was a shrunken little +white-haired old wastrel who haunted Mulqueen's Livery over on +Twenty-fourth Street near Tenth Avenue, disappearing in and out of the +cellar and loft and stalls like a leprechaun haunts a hollow tree. +Nobody knew where he had come from or where he lived except that he +could always be found wherever there was a suffering animal, be it dog, +cat or squirrel, and the rest of the time at Mulqueen's, with whom he +had an understanding about the telephone. He was short, wiry, unshaven, +with the legs of a jockey; and when he could get it he drank. That, +however, was not why he had left Ireland, which had had something to do +with Phoenix Park; nor was it the cause of the decline of his fortunes, +which had been the coming of the motor. + +Some day a story must be written called The Hitching Post, about those +thousands of little cast-iron negro boys who stand so patiently on the +green grass strips along village streets waiting to hold long-forgotten +bridle reins. They lost their usefulness a decade or more ago, and so, +by the same token and at the same time, did all that army of people who +lived and moved and had their being by ministering to the needs of the +horse. The gas engine was to them what the mechanical bobbin was to the +spinners of Liverpool and Belfast. With the coming of the motor the race +of coachmen, grooms and veterinaries began to perish from the earth. +Among the last was Danny Lowry, at the very zenith of his fortunes an +unofficial vet to most of the swell stables belonging to the carriage +people of Fifth Avenue. One by one these stables had been converted into +garages, and the broughams and C-spring victorias, the landaus and +basket phaetons had been dragged to the auction room or shoved into dim +corners to make room for snappy motors; and the horses Danny knew and +loved so well had been sold or turned out to grass. + +But there was nobody to turn Danny out to grass. He had to keep going. +So he had drifted lower and lower, passing from the private stable to +the trucking stable, and from the trucking stable to the last remaining +decrepit boarding and liveries of the remote West Side. The tragedy of +the horse is the tragedy of all who loved them. Danny was one of these +tragedies, but he still picked up a precarious living by doing odd jobs +at Mulqueen's and acting as a veterinary when called upon, and he could +generally be found either loafing in the smelly little office or smoking +his T D pipe on the steps outside. + +He and Mr. Ephraim Tutt, the lawyer, who lived in the rickety old house +with the tall windows and piazzas protected by railings of open ironwork +round which twisted the stems of extinct wistarias, had long been +friends. Many a summer evening the two old men had sat together and +discoursed of famous jockeys and still more famous horses, of Epsom and +Ascot, until Mr. Tutt's cellaret was empty and never a stogy left in the +box at all. Probably no one save the odd lanky old attorney, who himself +seemed to belong to a bygone era, knew the story of Danny's glorious +past--how he had risen from his Uncle Aherne's livery in Dublin first to +being paddock groom to Lord Ashburnham and then to jockey, finally to +ride the Derby under the Farringdon gold and crimson, and to carry away +Katherine Brady, the second housemaid, as Mrs. Lowry when he went back +to Dublin with a goodly pile of money to take over his uncle's business; +and how thereafter had come babies, and fever, and the epizootic, and +hard times; and Danny, a heartbroken man, had fled from bereavement and +pauperism and possibly from prison to seek his fortune in America. And +then the motor! Lastly, now, a hand-to-mouth, furtive, ignorant old age, +a struggle for bare existence and to keep the tiny flat going for his +seventeen-year-old granddaughter, Katie, who kept house for him and of +whose existence few, even of Danny's friends, were aware excepting Mr. +Tutt. + +There was, in fact, a striking parallel between these two old men, the +one so ignorant, the other so essentially a man of culture, in that they +were both humanitarians in a high sense. It is improbable that Ephraim +Tutt was conscious of what drew him to Danny Lowry, but drawn he was; +and the reason for it was that the fundamental mainspring of the life of +each was love--in the case of the man of law for those of his fellow men +who suffered through foolishness or poverty or weaknesses or misfortune; +and in that of his more humble counterpart, whose limitations precluded +his understanding of more endowed human beings, for the dumb animals, +who must mutely suffer through the foolishness or poverty or weakness or +misfortune of their owners and masters. + +Danny had sat up all night with only a horse blanket drawn over his +legs, taking care of a roan mare with the croup. The helpless thing had +lain flat on her side in the straw struggling for breath, and Danny, his +heart racked with pity, had sat in the stall beside her, every hour +giving her steam and gently pouring his own secret mixture down her +throat. Nobody but Danny cared what became of the mare, left there two +weeks before by a stranger who had not returned for it; stolen, +probably. Cramped, stiff with rheumatism, half dead from fatigue and +suffering from a bad cough himself, he left the stable at eight o'clock +next morning, hopeful that the miserable beast would pull through, and +stepped round to Salvatore's lunch cart for a bowl of coffee and a hot +dog. He was just lighting his pipe preparatory to going back to the +stable when a stranger pulled up to the curb in a mud-splashed depot +wagon. + +"'Morning," he remarked pleasantly. "Can you tell me if Mulqueen's +livery stable is anywhere about here?" + +Danny removed his pipe and spat politely. + +"Sure," he replied, taking in the horse, which besides being lame and +having a glaring spavin on its off hind leg was a mere bone bag fit only +for the soap factory. "'Tis just forninst the corner. I'm after goin' +there meself." + +The stranger, a heavy-faced man with a thick neck, nodded. + +"All right. You go along and I'll follow." + +Mulqueen was not yet at the stable and Danny helped unharness the +animal, which, as soon as relieved of the shafts, hung its head between +its legs, evidently all in. The stranger handed Danny a cigar. + +"I'm lookin' for a vet," said he. "My horse ought to have something done +for him." + +"I can well see that!" agreed Danny. "He needs a poultice and hot +bandages. A bit of rest wouldn't do him no harm, neither." + +"Well, I'm no vet," returned the stranger with an apologetic grin, "but +it don't take much to know that he's a sick horse. I'm a doctor, myself, +but not a horse doctor. Have you got one here?" + +"Some calls me a horse doctor," modestly answered Danny. "I can treat a +spavin and wind a bandage as well as the next. How long will you be +leavin' him?" + +"Oh, a day or two, I guess. Well, if you're a veterinary I leave him in +your care. My name's Simon--Dr. Joseph R. Simon, of Hempstead, Long +Island." + +Danny worked all the morning over the horse, doing his best to make it +comfortable. Indeed, before he had concluded his treatment the animal +was probably more comfortable than he, for the night in the cold stall +had given him a chill and when he left the stable to go home for lunch +he was in a high fever. Doctor Simon was outside on the sidewalk talking +to Mulqueen. + +"Well, doctor," said he, "what did you find was the matter with my +horse?" + +"Spavin, lame in three legs, sore eyes, underfed," replied Danny, +shivering. "Sure an' he's a sick animal." + +"How much do I owe you?" inquired Doctor Simon. + +Danny was about to answer that a couple of dollars would be all right +when the thought occurred to him that here was an opportunity to secure +medical treatment for himself. + +"If you'll give me something to stop a fever we'll call it even," he +suggested. + +"That's easy!" returned Doctor Simon heartily. "Come into the office and +I'll take your temperature and write you out a prescription." + +So they sat down by the stove and the doctor took Danny's pulse and put +a thermometer under his tongue, chatting amicably meanwhile, and when he +had completed his examination he wrote something on a piece of paper. + +"How long have you been practicing veterinary medicine?" he inquired. + +"All my life," answered Danny truthfully. "But I don't get near so much +to do as I used. These be hard times for those as have to do with +horses." + +He got up painfully. + +"Well, now," said Doctor Simon, "I'd feel better if I paid you for +treating my horse. Just put this five-dollar bill in your pocket. I +guess you need it more than I do." + +Danny shook his head. "That's all right!" he said weakly, for he was +feeling very ill. "It's a stand-off." + +"Oh, go ahead, take it!" urged Doctor Simon, shoving the bill into the +pocket of Danny's overcoat. "By the way, have you got your card? I might +be able to send a little business your way." + +When his magic skill with horses was matter of common knowledge among +the upper circle of Long Island grooms and coachmen Danny had had a few +cards struck off by a friendly printer. A couple of fly-blown specimens +still lingered in the drawer of Mulqueen's desk. Danny searched until he +found one: + + DANIEL LOWRY + VETERINARY + 212 WEST 53D STREET + NEW YORK CITY + +"Here, sor," said he, his head swimming, "that's my name, but the +address is wrong." + +Doctor Simon put it in his pocketbook. + +"Thanks," he remarked. "Much obliged for fixing up my horse." Then in a +businesslike manner, he threw back his coat and displayed a glittering +badge. "Now," he added brusquely, "I must arrest you for practising +veterinary medicine without a license. Just come along with me to the +nearest police station." + + * * * * * + +When Mr. Tutt returned home that evening after attending one of the +weekly sessions at the Colophon Club, where he had reluctantly +contributed the sum of fifty-seven dollars to relieve the immediate +needs of certain impecunious persons gathered there about a +green-baize-covered table in a remote corner of the card room, he +perceived by the light of an adjacent street lamp that someone was +sitting upon the top of the steps leading to his front door. + +"Are you Mr. Tutt?" inquired Katie Lowry, getting up and making a timid +curtsy. "The great lawyer?" + +"That is my name, child," he answered. "What do you want of me?" + +She was but a wisp of a girl and her eyes shone like a cat's from under +a gray shawl gathered over a pair of narrow, pinched shoulders. + +"They've taken grandfather away to prison," she replied with a catch in +her throat. "He didn't come in to lunch nor to supper, and when I went +to the stable Mr. Mulqueen said a detective had arrested grandfather for +doctoring horses without a license and he had pleaded guilty and they'd +locked him up. I went to the police station, but they said he wasn't +there any more, but that he was in the Tombs." + +"Who is your grandfather?" demanded Mr. Tutt as he unlocked the door. + +"Danny Lowry," she replied. "Oh, sir, won't you try to do something for +him, sir? He thinks so much of you! He often has told me what a grand +man you were and so kind, besides being such a clever lawyer and all the +judges afraid of you!" + +"Danny Lowry in the Tombs!" cried Mr. Tutt. "What an outrage! Of course +I'll do what I can for him. But first come inside and warm yourself. +Miranda!" he shouted to the colored maid of all work. "Make us some hot +toast and tea and bring it up to the library. Now, my dear, take off +your shawl and sit down and tell me all about it." + +So with her frayed kid shoes upturned on the fender, little Katie Lowry, +confident that she had found an all-powerful friend in this queer long +man who smoked such queer long cigars, sipping her tea only when she had +to pause for breath, poured out the story of her grandfather's fight +with poverty and misfortune, while her auditor's wrinkled face grew soft +and hard by turns as he watched her through the gray clouds from his +stogy. An hour later he left her at the door of her flat, happy and +encouraged, with a twenty-dollar bill crumpled in her hand. + + * * * * * + +"But what do you expect me to do about it?" retorted District Attorney +Peckham in his office next morning when Mr. Tutt had explained to him +the perversion of justice to accomplish which the law had been invoked. +"I'm sorry! No doubt he's a good feller. But he's guilty, isn't he? +Admitted it in the police court, didn't he?" + +"I expect you to temper justice with mercy," replied Mr. Tutt earnestly. +"This old man's whole life has been devoted to relieving the sufferings +of animals. He's a genuine Samaritan." + +"That's like saying that a thief has done good with his plunder, isn't +it?" commented Peckham. "Look here, Tutt, of course I hope you get your +man off and all that, but if I personally threw the case out I'd have +all the vets in the city on my neck. You see the motors have pretty +nearly put 'em all out of business. There aren't enough sick horses to +go round, so they've been conducting a sort of crusade. Tough luck--but +the law is the law. And I have to enforce it--ostensibly, anyway." + +"Very well," answered the old lawyer amiably but defiantly. "Then if +you've got to enforce the law against a fine old chap like that I've got +to do my darnedest to smash that law higher than a kite. And I'll tell +you something, Peckham--which is that the human heart is a damn sight +bigger than the human conscience." + + * * * * * + +Danny Lowry had lived for years in fear of the blow which had so +suddenly struck him down, for there had never been any blinking of the +obvious fact that in acting as an unlicensed veterinary he was brazenly +violating the law. On the other hand, not being able to read or write, +and having no technical knowledge of medicine, all his experience, all +his skill, all his love of animals could avail him nothing so far as +securing a license was concerned. He could not read an examination +paper, but he could interpret the symptoms seen in a trembling neck and +a lack-luster eye. Danny had no choice but to break the law or abandon +the only career for which he had an aptitude, or by which he could hope +to earn a living at his age. His crime was _malum prohibitum_, not +_malum in se_, but it was, nevertheless, a violation of a most necessary +law. Certainly none of us wish to be doctored by tyros or humbugs, or to +have our animals treated by them. Only Danny was neither a tyro nor a +humbug, and had he not been a lawbreaker the world would have been to +some extent the loser. + +Yet by all the canons of ethics and justice it was most improper for Mr. +Tutt to hurry off to the Tombs and bail out old Danny Lowry, a +self-confessed lawbreaker, giving his own bond and the house on +Twenty-third Street as security. Still more so, as more unblushingly +ostentatious, was his taking the criminal over to Pont's and giving him +the very best dinner that Signor Faccini, proprietor of that celebrated +hostelry, could purvey. + +Hard cases are said to make bad law; I wonder if they make bad people. +If "conscience makes cowards of us all" does human sympathy play ducks +and drakes with conscience? Does it blind the eye of reason? Rather, +does it not illumine and expose the fallacies of logic and the falsities +of the syllogism? Do two and two make four in human polity as in +mathematics? Sometimes it would not seem so. + +Certainly you would have picked Mr. Bently Gibson, of The Gibson Woolen +Mills, as a model juror. One look at him as a prospective talesman in a +murder case and you would have unhesitatingly murmured, "The defense +challenges peremptorily!" His broad forehead, large well-shaped nose, +firm chin and clear calm eye evidenced his common sense, his +conscientiousness and his uncompromising adherence to principle. His +customs declarations were complete to the smallest item, his income-tax +returns models of self-sacrifice, he was patriotic and civic, he +belonged to the Welfare League and the Citizens' Union, and--I hesitate +to confess it--he subscribed to the annual deficit of the Society for +the Suppression of Sin. On the face of it, he was the kind of man the +district attorney tries to select as foreman of a jury when he has to +prosecute a woman who had kidnaped her own child out of a foundling +asylum. + +The heelers and hangers-on of the criminal courts would have described +him as a highbrow and as a holier-than-thou; perhaps he might in a +moment of jocularity have even so described himself--for he had his +human--perhaps I should have said, his weaker--side. Surely he seemed +human enough when he kissed Eleanor good-by at the door of their country +place on the Sound the morning he had been subpoenaed to serve as a +juryman in Part Five of the General Sessions. He had planned to take a +week's holiday that spring, and he had gone to infinite trouble to +arrange his business in order to have it, for they had become engaged +eleven years before at the moment when the apple blossoms and the +dogwoods were at the height of their glory, even as they were now. + +When, however, he found the brown subpoena at his office directing him +to present himself for service the following Monday he simply gave a +half sigh, half grunt of disgust, and let the longed-for vacation go; +for one of his pet theories was that the jury system was the chief +bulwark of the Constitution, the cornerstone of liberty. Had he only +been disingenuous enough he need never have served on any jury, for no +lawyer for the defense hearing him enlarge on what he considered the +duties of a juryman to be, would ever have allowed him in the box. But +when other chaps on the panel presented their excuses to the judge and +managed to persuade him of the imperative needs of family or business, +and slipped--grinning discreetly--out of the court room, he merely +inaudibly called them welshers and pikers. No, he regarded jury service +as a duty and a privilege, one not to be lightly avoided--the one common +garden governmental function in which Uncle Sam expected every citizen +to do his duty. + +"I won't let any of the rogues get by me!" he shouted gaily to his wife +over the back of the motor. "And anyhow I shan't be locked up all night. +There aren't any murder cases on the calendar. I'll be out on the +five-fifteen as usual." + +Alas, poor Bently! Alas for human frailty and all those splendid +visions in which he pictured himself as the anchor of the ship of +justice, a prop and stay of the structure of democracy. + +His train was a trifle late and the roll of the jury had already been +called, and the perennial excuses heard, when he entered the court room; +but the clerk, who knew him, nodded in a welcoming manner, checked him +off as present and dropped his name card in the revolving wheel. It was +a well-known scene to Bently, a veteran of fifteen years' service. Even +the actors were familiar friends--the pink-faced judge with his +snow-white whiskers, who at times suggested to Bently an octogenarian +angel, and, at others, a certain ancient baboon once observed in the +Primates cage at the Bronz Zoo; the harried, anxious little clerk with +his paradoxically grandiloquent intonation; the comedy assistant +district attorney with his wheezy voice emanating from a Falstaffian +body, who suffered from a soporific malady and was accustomed to open a +case and then let it take care of itself while he slumbered audibly +beneath the dais; even Ephraim Tutt, the gaunt, benignly +whimsical-looking attorney, in his rusty-black frock coat and +loose-hanging tie; his rotund partner, whose birdlike briskness and fat +paunch inevitably brought to mind a distended robin in specs; and the +_dégagé_ Bonnie Doon in his cut-in-at-the-waist checked suit--he knew +them all of old. + +"Well, call your first case, Mister District Attorney!" directed the +judge, nodding encouragingly at Bently, well knowing that in him he had +a staunch upholder of the law-as-it-is, who could be depended upon to +bolster up his weaker or more sentimental brother talesmen into the +proper convicting attitude of mind. + +Then--as per the schedule in force for at least an epoch--good-natured, +pot-bellied Tom Hingman, the oldest A.D.A. in the office, rose heavily, +fumbled with his stubby fingers among the blue indictments on the table, +drew one forth, panted a few times, gasped out "People against Daniel +Lowry," and looked round in a pseudo-helpless way as if not knowing +exactly what to do. + +There was a slight stir, and from the back of the court room came +forward a funny little bow-legged old man, carrying in both hands a +funny little flat-topped derby hat, and took his seat timidly at the bar +of justice beside Mr. Tutt, who smiled down at him affectionately and +put his arm about the threadbare shoulders as if to protect him from the +evils of the world. They made a quaint and far from unpleasing picture, +thought Bently Gibson, the ideal juror, and he wondered what the poor +old devil could be up for. + +A jury was impaneled, Bently among them; the balance of the panel was +excused until two o'clock; the court room was cleared of loafers; the +judge perused the indictment with a practised eye; Tom Hingman rose +again, wheezed and grinned at the embattled jury; and the mill of +justice began to grind. + +Now the mill of justice, at least in the General Sessions of New York +County, grinds exceeding fine, so far as the number of convictions is +concerned. Of those brought to the bar for trial few escape; for modern +talesmen, being hard-headed men, regard the whole thing as a matter of +business and try to get through with it as quickly and as efficiently as +possible. The bombastic spread-eagle orator, the grandiloquent gas bag, +the highfaluting stump speaker gain few verdicts and win small applause +except from their clients. And district attorneys who ape the bloodhound +in their mien and tactics win scant approval and less acquiescence from +the bored gentlemen who are forced to listen to them. Nowadays--whatever +may have been the case two generations ago--each side briefly states its +claims and tries to win on points. + +People were apt to wonder why each succeeding administration inevitably +retained stuffy old Tom Hingman at seventy-five hundred dollars a year +to handle the calendar in Part Five. Yet those on the inside knew why +very well. It was because Tom long ago, in his prehistoric youth, had +learned that the way to secure verdicts was to appear not to care a +tinker's dam whether the jury found the defendant guilty or not. He +pretended never to know anything about any case in advance, to be in +complete ignorance as to who the witnesses might be and to what they +were going to testify, and to be terribly sorry to have to prosecute the +unfortunate at the bar, though he wasn't to blame for that any more than +the jury were for having to find him guilty if proven to be so, which, +it seemed to him, he had been clearly proven to be. I say Tom pretended +all this, yet it was more than half true, for Tom was a kind-hearted old +bird. But the point was that, whether true or not, it got convictions. +The jury sucking it all up in its entirety felt sorrier for the +simple-minded old softy of a Tom, which they believed him to be, than +they did for the defendant, who they concluded was a good deal cleverer +than the assistant district attorney. + +In a word, it put them on their honor as public officers not to let the +administration of justice suffer merely because the A.D.A. was too old +and easy-going and generally slab-sided to be really on his job. Thus, +they became prosecuting attorneys themselves--in all, thirteen to one. +So Tom, having thus delegated his functions to the jury, calmly left it +all to them and went to sleep, which was the best thing that he did. +Worth seventy-five hundred a year? Rather, seventy-five thousand! + +"Gentlemen of the jury," he began haltingly, "this defendant seems to +have been indicted for the crime of practising medicine without a +license--a misdemeanor. I don't see exactly how he gets into this court, +which is supposed to try only felony cases, but I assume my old friend +Tutt made a motion to transfer the case from the Special to the General +Sessions on the theory that he would stand more chance with a jury than +three--er--hardened judges. Well, maybe he will--I don't know! I gather +from the papers that Mr. Lowry here, after holding himself out to be a +properly licensed veterinary, treated a horse belonging to the +complainant. It is not a very serious offense, and you and I have no +great interest in the case, but of course the public has got to be +protected from charlatans, and the only way to do it is to brand as +guilty those who pretend they are duly licensed to practise medicine +when they are not. If you had a sick baby, Mr. Foreman, and you saw a +sign 'A.S. Smith, M.D., Children's Specialist,' you would want to be +sure you were not going to hire a plumber, eh? You see! That's all there +is to this case!" + +"All there is to this case!" murmured Mr. Tutt audibly, raising his eyes +ceilingward. + +"Step up here, Mr. Brown." + +Mr. Brown, the supposed Doctor Simon whose horse Danny had attended, +seated himself complacently in the witness chair and bowed to the jury +in a professional manner. He had, he told them, been a detective +employed by the state board of health for over sixteen years. It was his +duty to go round and arrest people who pretended to be licensed +practitioners of medicine and assumed to doctor other people and +animals. There were a lot of 'em, too; the jury would be surprised-- + +Mr. Tutt objected to their surprise and it was stricken out by order of +the court. + +"I'll strike out 'and there are a lot of 'em, too,' if you say so, Mr. +Tutt," offered the court, smiling, but Mr. Tutt shook his head. + +"No; let it stand!" said he significantly. "Let it stand!" + +"Well, anyway," continued Mr. Brown, "this here defendant Lowry, as he +calls himself, is well known--" + +Objected to and struck out. + +"Well, this here defendant makes a practise--" + +"Strike it out! What did he do?" snapped the octogenarian baboon on the +bench. + +"I'm tellin' you, judge," protested Brown vigorously. "This here +defendant--" + +"You've said that three times!" retorted the baboon. "Get along, can't +you? What did he do?" + +"He treated my horse for spavin here in New York at 500 West 24th Street +at my request on the twentieth of last March and I paid him five +dollars. He said he was a licensed veterinary and he gave me his card. +Here it is." + +"Well, why didn't you say so before?" remarked the judge more amiably. +"Let me see the card. All right! Anything more, Mr. Hingman?" + +But Mr. Hingman had long before this subsided into his chair and was +emitting sounds like those from a saxophone. + +"That is plain, simple testimony, Mr. Tutt," remarked the judge. "Go +ahead and cross-examine." + +Ephraim Tutt slowly unjointed himself, the quintessence of affability, +though Mr. Brown clearly held him under suspicion. + +"How long have you earned your living, my dear sir, by going round +arresting people?" + +"Sixteen years." + +"Under what name--your own?" + +"I use any name I feel like." + +Mr. Tutt nodded appreciatively. + +"Let us see, then. You go about pretending to be somebody you are not?" + +"Put it that way, if you choose." + +"And pretending to be what you are not?" + +Mr. Brown eyed Mr. Tutt savagely. "What do you mean by that?" + +"Didn't you tell this old gentleman beside me that you were a doctor of +medicine but not a doctor of veterinary medicine--and beg him to treat +your horse for that reason?" + +"Sure I did. Certainly." + +"Well, are you a licensed medical practitioner?" + +"Look here! What's that got to do with it?" snarled Mr. Brown, looking +about for aid from the sleeping Hingman. + +"The question is a proper one. Answer it," directed the judge. + +"No, I'm not a licensed doctor." + +"Well, didn't you treat Mr. Lowry?" + +The jury by this time had caught the drift of the examination and were +listening with intent appreciation. + +Mr. Brown leaned forward, a sickening smile of sneering superiority +curling about his yellow molars. + +"Ah!" he cried. "That's where I have you, sir! I only pretended to treat +him. I didn't really. I only scribbled something on a piece of paper." + +"You knew he couldn't read, of course?" + +"Sure." + +Mr. Tutt turned to the uplifted faces of the twelve. "So," he retorted, +pursing his wrinkled lips and placing his fingers together in that +attitude of piety which we frequently observe upon effigies of defunct +ecclesiastics--"so you did the very thing for which you threw this old +man at my side into jail--and for which he is now on trial! You lied to +him about being a doctor! You deceived him about giving him the medical +treatment he so much needed! And you arrested him after he had worked +for hours to relieve the sufferings of a sick animal. By the way, it was +a sick animal, wasn't it?" + +"The sickest I could find," replied Brown airily. + +"And he did relieve its sufferings, did he not?" continued Mr. Tutt +gently. + +"Very likely. I wasn't particularly interested in that end of it." + +Mr. Tutt's meager frame seemed suddenly to expand until he hung over the +witness chair like the genii who mushroomed so unexpectedly out of the +fisherman's bottle in the Arabian Nights Entertainments. + +"You were not interested in ministering to a poor horse, so sick it +could hardly stand! You were only interested in imprisoning and +depriving of his only form of livelihood this old man whose heart was +not hardened like yours! May I ask at whose instance you went and lied +to him?" + +"Mr. Tutt! Mr. Tutt!" interjected the octogenarian angel. "Your +examination is exceeding the bounds of judicial propriety." + +Ephraim Tutt bowed low. + +"A thousand pardons, Your Honor! My emotions swept me away! I most +humbly apologize! But when this witness so unblushingly confesses how he +played the scoundrel's part, aged case hardened practitioner as I am, my +heart cries out against such infamous treachery--" + +Bang! went the judge's gavel. + +"You are only making it worse!" declared the court severely. "Proceed +with your examination." + +"Very well, Your Honor!" replied Mr. Tutt, his lips trembling with +well-simulated indignation. "Now, sir, who instigated this miserable +deception--I beg Your Honor's pardon! Who put you up to this game--I +mean, this course of conduct?" + +"Nobody," replied Brown in a surly tone. + +"Did you ever hear of the United Association of Veterinaries of the +Greater City of New York--sometimes referred to as The Horse Leeches' +Union?" asked Mr. Tutt insinuatingly. + +Mr. Brown hesitated. + +"I've heard of some such organization," he admitted. "But I never heard +it was called a Horse Leeches' Union." + +"Didn't one of its officers come to you and say that unless something +was done to reduce competition they'd have to go out of business--owing +to the decrease in horses in New York?" + +"I don't remember," answered Brown slowly. "One of 'em may have said +something of the sort to me. But that's my business!" + +"Yes!" roared Mr. Tutt suddenly. "It's your business to pretend you're a +doctor when you're not, and you walk the streets a free man; and you +want to send my client to Sing Sing for the same offense! That is all! I +am done with you! Get down off the stand! Do not let me detain you from +the practise of your unlicensed profession!" + +"Mr. Tutt!" again admonished His Honor as the lawyer threw himself +angrily into his chair. "This really won't do at all!" + +"I beg Your Honor's pardon--a thousand times!" said Mr. Tutt in tones so +humble and sincere that he almost made the angel-faced baboon believe +him. + +I should like to go on and describe the whole course of Danny Lowry's +trial item by item, witness by witness, and tell what Mr. Tutt did to +each. But I can't; there isn't room. I can only dwell upon the tactics +of Mr. Tutt long enough to state that at the conclusion of the case +against Daniel Lowry, wherein it was clearly, definitely and +convincingly established that Danny had been practising veterinary +medicine for a long time without the faintest legal right, the lawyer +rose and declared emphatically to the jury that his client was +absolutely, totally and unquestionably innocent, as they would see by +giving proper attention to the evidence he would produce--so that he +would not take up any more of their valuable time in talk. + +And having made this opening statement with all the earnestness and +solemnity of which he was capable Mr. Tutt called to prove the +defendant's good reputation, first, Father Plunkett, the priest to whom +Danny made his monthly confession and who told the jury that he knew no +better man in all his parish; second, Mulqueen, who described Danny's +love of horses, his knowledge of them, his mysterious intuition +concerning their hidden ailments, which, being as they could not speak, +it was given to few to know, and how night after night he would sit up +with a sick or dying animal to relieve its pain without thought of +himself or of any earthly reward; then, man after man and woman after +woman from the neighborhood of West Twenty-third Street who gave Danny +the best of characters, including policemen, firemen, delicatessens, +hotel keepers, and Salvatore, the proprietor of the night lunch +frequented by Mr. Tutt. + +And last of all little Katie Lowry. It was she who found the crack in +Bently's moral armor. For Eleanor his wife was of Irish ancestry and of +the colleen type, like Katie; and Bently had always played up to her +Irish side when courting her as a humorous short cut to a quasi +familiarity, for you may call a girl "acushla" and "Ellin darlint" when +otherwise you are fully aware, but for the Irish of it, she would have +to be referred to as Miss Dodworth. And this wisp of a girl with her big +black-fringed gray eyes peering up and out over her gray knitted shawl, +but for the holes in her white stockings and the fact that the alabaster +of her neck was a shade off color--faith, an' it might have been +Eleanor hersilf! It is obvious that any juryman who allows his mind to +be influenced by the mere fact that one of the witnesses for the defense +is a pretty woman--even if she recalls to him his wife or +sweet-heart--is a poor weakling, a silly ass. + +Otherwise all a crook need do would be to hire a half dozen of +Ziegfeld's midnight beauties to testify for him by day; and the slender +darlings could work in double shifts and be whisked in auto busses from +roof garden to court room. Bently was no weakling, but Katie--perhaps +because it was the moment of apple blossoms and dogwood and the +anniversary of his wedding day--Katie got him. Kathleen Mavourneen, and +all! No man could have brought up a fatherless and motherless girl like +that and keep her so simple, frank and innocent unless there was +something fine about him. You see, highbrows and lowbrows are all alike +below the collar bone. + +And here's the catch in it. Bently had told Eleanor that very morning +that none of the rogues would get by him, and he had meant it. None of +them ever had--in all his years of jury service. Time and again he had +been the one stubborn man to hang out all night for a verdict of guilty +against eleven outraged and indignant fellow talesmen who wanted to +acquit. But quite unconsciously he found himself saying that this old +fellow at the bar wasn't a rogue at all. If he was a criminal he was so +at most only in a Pickwickian sense. All the previous cases in which he +had sat had been for murder or arson, robbery or theft, burglary, +blackmail or some other outrageous offense against common morals or +decency. But here was a man who had never done anything but good in his +life, and was at the bar of justice charged with crime merely because +some cold-blooded mercenaries thought he was interfering with their +business! Bently was in a recalcitrant and indignant frame of mind +against the prosecution long before the defense began. The whole +proceeding seemed to him an outrageous farce. That wasn't what they were +there for at all! So swiftly does the acid of sympathy corrode and +weaken the stoutest conscience, the most logical of minds! + +Mr. Tutt did not put Danny on the stand--why should he?--and the +octogenarian judge declared the case closed on both sides. Then +everybody made a speech, in which he told the jury to disregard +everything everybody else said. + +Mr. Tutt spoke first. He thanked the gaping jury for their attention and +courtesy and kindness and intelligence and for taking the trouble to +listen to him. He told them what a wise and upright judge the old baboon +on the bench was; and what a sterling, honest, kindly chap the fat +assistant district attorney really was. They were the highest type of +public officers--but paid--he accentuated the "paid" very slightly--to +do their duty as they interpreted it. Now, Mr. Hingman would have to +claim that Danny Lowry was a criminal; whereas, thank heaven! they all +of them--every man of them--knew he was nothing of the kind! +Criminal--that old man? Mr. Tutt raised his eyes and his arms to heaven +in protest. Why, one look at him would create a reasonable doubt! But +the case against him failed absolutely for the following reasons: + +Daniel Lowry had not practised veterinary medicine without a license in +taking care of Brown's sick horse, because he had not claimed to be a +veterinary; he had not been paid for his services; and because all he +had done was to help a suffering animal, as any man who called himself a +Christian and had a heart would have done, and as it was his duty to do. +Who "shall have an ass or an ox fallen into a pit"? and so on. It was in +Holy Writ! The highest law! + +There was no evidence against Danny at all, because Brown was an +accomplice and his testimony was not corroborated; at any rate he was a +procurer and instigator of crime, an _agent provocateur_, a despicable +liar, hypocrite and violator of the very law he was paid to uphold; and +as he had held himself out as a physician to Danny Lowry everything that +passed between them was privileged as a confidential communication and +must be disregarded as if it had never been said. + +Daniel Lowry was a man of the highest reputation, of such character that +he never had been guilty of an unkind or selfish act in his entire life, +much less commit crime; which alone, taken by itself, was quite enough +to interject and raise a reasonable doubt--upon which they must acquit. + +Then Tom Hingman got up and grimaced and said he had known Mr. Tutt all +his professional life and he was a peach, but they mustn't believe what +he said or let him put anythin' over on 'em, for he was pretty slick +even if he was a fine old feller. Now the plain fact was, as they all +knew perfectly well, that this old boy had been caught with the goods. +It might be tough luck, but the law was the law and they were all there +to enforce it--much as they hated to do so--and there was nothing to it +but to convict and let the judge deal with the defendant with that mercy +and leniency and forbearance for which he was so justly famous. He +panted a few times and sat down. + +Then the judge took his crack. He told the jury, in so many words, to +pay no attention to either the A.D.A. or to Mr. Tutt, and to listen only +to him, because he was the whole thing. The question was: Had the +defendant assumed to give medical treatment to Brown's horse, for any +kind of valuable consideration? In determining this they should consider +all the evidence, including the fact that the prisoner had claimed to be +a veterinary, had been paid for treating Brown's horse as such, had +pleaded guilty in the police court, and that none of the alleged facts +upon which the charge was based had been denied before them in present +trial. + +As he said this the pink-and-white baboon looked at them steadily and +significantly for several seconds over his eyeglasses. They should +consider the business card which the defendant had given to the +complaining witness and in which he held himself out as a veterinary. +The testimony of the complainant stood uncontradicted. The complainant +was not an accomplice and his testimony did not have to be corroborated. +A decoy wasn't an accomplice. That was the law. Neither was what had +passed between the complainant and defendant privileged as a +confidential communication, because the complainant was not a physician. +That was all there was to that! + +They should ask themselves what in fact the defendant had done if not +practise veterinary medicine without a license? It was not controverted +but that he had said he was a veterinary, administered medicine to a +sick horse, offered to compound payment for medical treatment for +himself, finally taken five dollars, and admitted his guilt before the +magistrate. If they had any reasonable doubt--and such a doubt might of +course be raised by evidence of previous good character--they would of +course give it to the defendant and acquit him, but such a doubt must be +no mere whim, guess or conjecture that the defendant might not after all +be guilty even if the evidence seemed so to demonstrate; it must be a +substantial doubt based on the evidence and such a one as would +influence them in the important matters of their own daily, domestic and +business lives. That was all there was to it! Let them take the case and +decide it! It should not take 'em very long. The question of how the +defendant should be punished, if at all, did not concern them. He would +take care of that. They might safely leave it to him! He bowed and +turned to his papers. The jury gathered up their coats and straggled +after Cap Phelan out of the court room. + +"Y'd be all right, counselor," remarked the second court officer, +suspending momentarily the delights of mastication, "if 'twasn't fer +that son of a gun on the back row, Gibson! He's a bad one! I've known +him for years! He'd convict his own mother of petit larceny!" + +"So? So?" murmured Mr. Tutt, producing a leather case the size of a +doctor's instrument bag from his inside pocket and removing a couple of +stogies therefrom. "Well, it's too late now to do anything about it. I'm +going out to stretch my legs and have a smoke." + +Mr. Tutt loitered into the corridor, stepped unostentatiously behind a +pillar, slipped into the adjoining court room--which happened to be +empty--and thence back into the passage upon which the jury rooms +opened. He found Cap Phelan standing before one of these with a finger +to his lips. + +"Pst! They're at it a-ready!" whispered Phelan as Mr. Tutt slipped him a +stogy. + +The transom above was open and through it drifted out a faint blue +cloud. A great hubbub was going on inside. Suddenly above it a harsh +voice rang out: "That ain't a reasonable doubt! I tell you, that ain't a +reasonable doubt! Aw, you give me a pain, you do!" + +"I've got 'em!" grinned Mr. Tutt contentedly. "Phelan, bring me a +chair!" + +Now right here is where this story begins--only here. + +"Vell, gen'l'muns," said the foreman, who was a glove merchant and +looked like Sam Bernard, as they took their seats round the battered oak +table. "Vot you say? Shall we disguss or take a vote?" + +"Let's take a smoke!" amended a real-estate broker. "No use goin' back +right off and getting stuck onto another damn case! Where's that +cuspidor?" + +"Speakin' of veterinaries," chuckled a man with three rolls of fat on +his neck, "did y'ever hear the story of the negro and the mule with the +cough?" + +None of them apparently ever had, so the stout brother told all about +how--ha, ha!--the mule coughed first. + +"I remember that story now," remarked one of the jury reminiscently +while the fat man glared at him. "If I had my way all these veterinaries +would be in jail! They're a dangerous lot. I had a second cousin once +who'd paid a hundred dollars--a hundred dollars!--for a horse and it +got the colic. So he called in a veterinary and it died." + +"Well, the vet didn't kill it, did he?" inquired the fat man scornfully. + +"My cousin always claimed he did!" replied the other solemnly. "There +was some mistake about what he gave the horse--wood alcohol or +something--I forget what it was. Anyhow, I think they're all a dangerous +lot. They all ought to be locked up. I move to convict!" + +"But neither of these fellers is a veterinary!" retorted a sad-looking +gentleman in black. "The charge is that one of 'em pretended to be--but +wasn't. So if he wasn't how could you convict him of being a +veterinary?" + +"Well, if he had been I'd have convicted him all right," asserted the +first. "They're dangerous--like all these clairvoyants and soothsayers." + +"Will somebody tell me?" requested a tall man who had been looking +intently out of the window, "whether a veterinary is the same thing as a +veterinarian? I always supposed a veterinarian was a sort of religion, +like a Unitarian. Veteran means old--I thought it was some old form of +religion; or a feller who didn't believe in eatin' meat." + +"Lead that nut out!" shouted somebody. "Let's get busy. The question is: +Did this old guy pretend he was a horse doctor when he wasn't? I say he +did." + +"Let's take a vote," suggested Bently. + +"Vell, let's understand vat we're doin'," admonished the foreman. "Do +you gen'l'muns all understand that we're tryin' to convict this feller +for doctoring a horse without a prescription?" + +"You mean a license, don't you?" inquired Bently. + +"Sure--a license. All right! Let's get a vote." + +The first ballot resulted in seven for acquittal, four for conviction, +and one blank--Bently's. + +"I don't know who the fellers are that voted for acquittal!" suddenly +announced a juror with a red face. "But I know this Brown personally, +and he's all right. You can rely on him absolutely. He goes to the same +place as me in the summer--Cottage Point. If any of you gentlemen want a +good quiet place--" + +"Any mosquitoes?" inquired an unknown irreverently. + +"No more'n anywheres else near New York." + +They took another ballot and found that the juryman who knew Brown had +brought over two others to conviction, so that the jury was now evenly +divided, Bently voting irresponsibly for acquittal. + +"Look here!" proposed the man in black. "Let's argue this out. Suppose I +put the various propositions and you vote on 'em each separately." + +"Shoot ahead!" adjured somebody. + +"Now, first, all who think this defendant claimed to be a veterinary say +aye." + +"Wait a minute!" interposed the tall man, who was still standing by the +window. "Maybe I am a nut. But I wish someone would explain to me which +is the defender. I thought Mr. Tutt was the defender." + +"Oh, my Lord!" groaned a flabby salesman in a pink tie. +"Defend-ant--a-n-t--remember your ant! He's the man we're trying! The +other one is the complainant!" + +"The only one that had any complaint was the horse", protested the tall +man. "But I understand now--we're tryin' the defendant. I've never +served on a jury before. Now, what's the question?" + +"Did the defendant--ant--claim to be a licensed veterinary--when he +wasn't?" + +"Now wait a second," objected the tall man again. "I want to get this +straight. Is it the point that if this old man pretended he was a horse +doctor when he wasn't he has to go to jail?" + +"Sure." + +"But the other man pretended he was a doctor." + +"But he was trying to trick the defendant." + +"But the first feller wasn't a doctor any more than the other feller. +Why not convict the first feller?" + +There was a chorus of groans from about the table. + +"You ought not to be here at all!" remarked the salesman acidly. "You're +simple-minded, you are! You keep still now and vote with the majority, +or we'll tell the judge on you!" + +The tall man subsided. + +"Vell," suddenly interjected the foreman, "he admitted he was guilty in +the bolice gourt." + +"Sure!" "That's so!" "Pass the box again!" came from all hands. + +When the foreman had counted the ballots Bently was horrified to +discover that ten jurors now thought the defendant guilty, and only two +believed him innocent. + +"May I suggest," said he earnestly, "that perhaps this old man did not +understand in the magistrate's court the elements that went to make up +the offense charged against him? He merely stood ready to admit freely +whatever the facts were. His opinion on the purely legal question of his +own guilt was not of much value. Anyhow, his subsequent plea of not +guilty to the indictment neutralizes the significance of the original +plea." + +There was a murmur of surprise and admiration from Bently's companions. + +"That's true, too!" declared the salesman. "I never thought of that! +You're some talker--you are, I must say! But how about that business +card?" + +"It seems to me," argued Bently, "that the card plays no particular part +in this case. In the first place the question before us is not whether +Lowry ever did--in the past--hold himself out as a veterinary, but +whether he did so on the day alleged in the indictment. The fact that he +gave the detective a card which he had had printed perhaps years before +only tends to show that at some time or other he may have pretended to +be a licensed veterinary. And you will recall, gentlemen, that the +testimony is merely that he said to the detective in reference to the +card: 'That is my name.' He did not say anything to him about being a +veterinary." + +This somewhat disingenuous argument created a profound impression. + +"Say, now you've said something!" declared the salesman. "You'd oughta +been a lawyer yourself. Let's take another vote." + +Curiously enough Bently's argument seemed to have had a revolutionary +effect, for the jury now stood ten to two for acquittal. He began to +feel encouraged. If ever there was a case-- Then he heard an altercation +going on fiercely between the salesman and Brown's summer friend, the +latter insisting loudly that the detective was a perfect gentleman and +entirely all right. + +"Nobody questions Mr. Brown's entire honesty," interposed Bently +hastily, in a friendly way. "The question before us is the sufficiency +of the evidence. Upon this, it seems to me, there is what might fairly +be called a reasonable doubt." + +"And you have to give that to the defendant--it's the law!" shouted the +salesman in fury. + +It was at this point that Mr. Tutt and Phelan had taken up their +positions outside the door, and the friend of Brown had told the +salesman that he gave him a pain; that his doubt wasn't a reasonable +doubt. + +"Gentlemen! Gentlemen!" protested Bently. "Let us discuss this matter +calmly." + +"But I'm a reasonable man!" shouted the salesman. "And so, if I have any +doubt, my doubt is bound to be reasonable." + +"You--a reasonable man?" sneered Brown's friend. "You're nothin' but a +damn fool!" + +"I am, am I?" yelled the salesman, starting to remove his coat. "I'll +show you--" + +"Oh, cut it out!" expostulated the fat man complacently. "Settle all +that afterward! We ain't interested." + +"Vell, take annoder vote," mildly suggested the foreman. + +This time it stood eleven to one for acquittal. All concentrated upon +the friend of Brown, over whose face had settled a look of grim +determination. But a similar expression occupied the features of Mr. +Bently Gibson, erstwhile the exponent of the-law-as-it-is, the bulwark +of the jury system, now adrift upon the ship of justice, blindly +determined that no matter what--law or no law, principles or no +principles--that old man was going to be acquitted. + +"My friend," he remarked solemnly, taking the floor, "of course you want +to do justice in this case. We have nothing against Mr. Brown at all. He +is doubtless a very honest and efficient officer. But surely the good +character of this defendant may well create a reasonable doubt--and the +rest of us feel that it does." + +"Sure! 'Course it does!" came from all sides. Mr. Brown's red-faced +friend having escaped the salesman's wrath began to show somewhat less +aggressiveness. + +"I don't care a damn about Brown!" he assured them. "He can go to hell +for all of me! But I don't see how you can acquit this feller when the +evidence is uncontradicted that he told Brown he was a veterinary and +treated his horse. I'd be violating my oath if I voted for acquittal +after that testimony. I ain't going to commit perjury for nobody! I'd +like to oblige you gentlemen, too, and vote your way, but I just can't +with that evidence stickin' in my crop. If it wasn't for that--" + +"He could 'a' treated the horse without doing it as a veterinary, just +as Mr. Tutt said!" interjected the tall man. + +"Good for you!" said the salesman, fully restored to equanimity. "You're +gettin' intelligent. Serve on a few more juries--" + +"But he said he was a veterinary," insisted Brown's friend. "How could +he have treated the horse as anything else but as a veterinary when he +said he was treating him as a veterinary?" + +"Maybe he just thought he was doing it as a veterinary", commented the +gloom in black. "He may have tried to do it as a veterinary and failed. +In that case he didn't do it as a veterinary but just as a plain man. +Get me?" + +"No, I don't!" snorted the red-faced one. "That's all bull. He said he +was a vet and he treated the horse as a vet and got five dollars for +it." + +"How do you know he did?" unexpectedly asked Bently. + +"Because he said so himself. That was part of the conversation between +Brown and Lowry," declared the obstinate summer friend of Brown. "If it +wasn't for that--" + +"If it wasn't for that you'd acquit?" demanded Bently sharply. + +"Yes. Sure I would!" + +"Then I say you should disregard all that conversation because it was a +privileged communication between a doctor--Brown--and his +patient--Lowry!" declared Bently heatedly. + +"But the judge said it wasn't privileged!" retorted the other. + +"Mr. Tutt said it was, though," shot back the salesman. + +"Well, the judge said--" + +"Let's go in and find out who said what," proposed the tall man. "I'd +like to know myself. I don't remember who said anything any longer." + +So they filed back into court. + +"Your Honor," stuttered the foreman, licking his lips in embarrassment, +"some of the gen'l'muns vant to inguire veder the gonversation between +Mr. Brown and Mr. Lowry is privileged or veder we haf to belief it?" + +The judge, who had evidently expected that the return of the jury was +for the purpose of declaring the defendant guilty, scowled. + +"The rule is," said he wearily, "that conversations between a doctor and +his patient are privileged and cannot be testified to without the +consent of the patient. If Brown had been a doctor--which he is not--it +is possible that I might have sustained Mr. Tutt's objection on the +ground and struck out the conversation. But he only pretended to be a +doctor, and no privilege exists under those circumstances even if in +some cases it seems to work a hardship upon the one who is deceived. The +conversation in this instance is part of the record. You may retire." + +But Bently, with a light upon his countenance such as theretofore had +ne'er been seen on sea or land, suddenly held up his hand. + +"One question, Your Honor. If Brown had been a doctor you would have +excluded the testimony?" + +The aged angel raised his eyebrows deprecatingly. + +"Perhaps; I might have considered the suggestion." + +"Thank you," said Bently, and they all traipsed out. + +"That cooks him!" whispered Phelan to Mr. Tutt at the keyhole. + +"Wait and see! Wait and see!" muttered the lawyer. "We're not dead yet." + +Once back in their room the jury took another vote. Eleven to one again. +Then Bently rose. + +"Gentlemen," he cried, "I think I have the key to this case." + +They all gazed at him expectantly. + +"We are obliged by law to give every reasonable doubt to the defendant. +Now the only obstacle to our acquitting this poor old man is the fact +that there is in evidence a conversation in which Lowry is claimed to +have said that he was a veterinary and had been acting as such all his +life. Mr. Tutt says that that conversation is privileged and should be +disregarded because it was a confidential communication between a doctor +and a patient. The judge says it is not privileged for the reason that +Mr. Brown was not in fact a doctor--but he says further that if Brown +were a doctor we should have to disregard that part of the +evidence--which would, as we all agree, leave us free to acquit. + +"Now then, how do we know Brown is _not_ a doctor? He says he isn't; but +he lied about everything else he told Lowry, and he may have been lying +about that too. And if he lied to Lowry he may have been lying to us +here to-day. I say that there is a reasonable doubt right there as to +whether Brown is really a doctor or not. Such a doubt belongs to the +defendant. He is entitled to it and it is our duty to acquit him!" + +"Hear! Hear!" "That's so!" "Bully for you!" "What yer got to say now, +eh?" "Take a vote!" "Pass the box!" resounded through the transom amid a +tremendous scuffling of feet and scraping of chairs. + +"Phelan!" gasped Mr. Tutt. "Who shall ever again have the temerity to +suggest that the jury system is not the greatest of our institutions?" + +"Pst!" answered Cap. "Listen! Sh-h. By God! They've acquitted him!" + + * * * * * + +"So you caught the five-fifteen after all!" was Eleanor's greeting as +the model juror jumped off the train. "I was terribly afraid you +wouldn't! I hope you didn't let any rascal get away from you?" + +"No!" He laughed as he leaped into the motor beside her. "Not a rascal! +And I've got a surprise for you! I'm going to have my vacation after +all!" + +"Really!" she cried, delighted. "You clever boy! How did you manage it?" + +"Well," he answered a little shamefacedly as he lit a cigarette, "the +fact is that when the jury I was on returned their verdict this +afternoon the judge said he wouldn't require our services any longer." + + * * * * * + +It was at about the same moment that two other good and true friends +stood at the foot of the steps leading up to Mr. Tutt's ramshackle front +door. + +"Sorr!" Danny was saying in a trembling voice, the tears in his faded +eyes. "Sorr! I would go to jail a hundred years and more, so I would, +could I but hear again what they all said of me! Sure, I niver knew I +was any account at all, at all! And them sayin' what a fine man I was, +an' all! God bless ye, sorr! And whin ye stand, sorr, at the bar of +heaven before God, the Judge, and the jury of all his holy angels, if +there be none else to defend ye, sure old Danny Lowry'll be there to do +that same." + + + + + + +End of the Project Gutenberg EBook of By Advice of Counsel, by Arthur Train + +*** END OF THE PROJECT GUTENBERG EBOOK 11987 *** |