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"!