By Advice of Counsel Part 20

"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 quant.i.ty 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 Inst.i.tute of Mechanics and Tradesmen, is "worth a d.a.m.n." 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 p.r.o.nounce 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 a.s.sistant 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, Ca.n.a.l, 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 G.o.ds 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 doc.u.ments 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 a.s.sistant district attorney known to memory--with the aid of his little book. He could la.s.so 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 a.s.s. 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 inst.i.tution 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, "reinst.i.tution 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 a.s.sistance."

"Well, who can?" asked Tutt anxiously.

"n.o.body," 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 a.s.sume 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.