Chapter IV: Part 4

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--"