By Advice of Counsel Part 24

"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 a.s.sistants 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 Woodc.o.c.k--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 const.i.tutional 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?" e.j.a.c.u.l.a.t.ed 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 a.s.sured 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 Woodc.o.c.k.

"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 ent.i.tled "How to Try a Case"!

"That Sort of Woman"

"Judge not according to the appearance."--John VII: 24.

"Tutt," said Mr. Tutt, entering the offices of Tutt & Tutt and hanging his antediluvian stovepipe on the hat-tree in the corner, "I see by the morning paper that Payson Clifford has departed this life."

"You don't say!" replied the junior Tutt, glancing up from the letter he was writing. "Which one,--Payson, Senior, or Payson, Junior?"

"Payson, Senior," answered Mr. Tutt as he snipped off the end of a stogy with the pair of nail scissors which he always carried in his vest pocket.

"In that case, it's too bad," remarked Tutt regretfully.

"Why 'in that case'?" queried his partner.

"Oh, the son isn't so much of a much!" replied the smaller Tutt. "I don't say the father was so much of a much, either. Payson Clifford was a good fellow--even if he wasn't our First Citizen--or likely to be a candidate for that position in the Hereafter. But that boy--"

"Shh!" reproved Mr. Tutt, slowly shaking his head so that the smoke from his rat-tailed cigar wove a gray scroll in the air before his face.

"Remember that there's one thing worse than to speak ill of the dead, and that's to speak ill of a client!"

Mr. Payson Clifford, the client in question, was a commonplace young man who had been carefully prepared for the changes and chances of this mortal life first at a Fifth Avenue day school in New York City, afterwards at a select boarding school among the rock-ribbed hills of the Granite State, and finally at Cambridge, Ma.s.sachusetts, in the cultured atmosphere of Harvard College, through whose precincts, in the dim, almost forgotten past, we are urged to believe that the good and the great trod musingly in their beautiful prime. He emerged with a perhaps almost prudish distaste for the ugly, the vulgar, and the unclean,--and with distinct delusions of grandeur. He was still in that state not badly described by the old saw--"You can always tell a Harvard man,--but you can't tell him much."

His mother had died when he was still a child and he preserved her memory as the most sacred treasure of his inner shrine. He could just recall her as a gentle and dignified presence, in contrast with whom his burly, loud-voiced father had always seemed cra.s.s and ordinary. And although it was that same father who had, for as long as he could remember, supplied him with a substantial check upon the first day of every month and thus enabled him to achieve that exalted state of intellectual and spiritual superiority which he had in fact attained, nevertheless, putting it frankly in the vernacular, Payson rather looked down on the old man, who palpably suffered from lack of the advantages which he had furnished to his son.

Payson, Sr., had never taken any particular pains to alter his son's opinion of himself. On the whole he was more proud of him than otherwise, recognizing that while he obviously suffered from an overdevelopment of the ego and an excessive fastidiousness in dress, he was, at bottom, clearly all right and a good sort. Still, he was forced to confess that there wasn't much between them. His son expressed the same thought by regretting that his father "did not speak his language."

So, in the winter vacation when Payson, Sr., f.a.gged from his long day at the office sought the "Frolics" or the "Folies," Payson, Jr., might be seen at a concert for the harpsichord and viola, or at an evening of Palestrina or the Earlier Gregorian Chants. Had he been less supercilious about it this story would never have been written--and doubtless no great loss at that. But it is the prerogative of youth to be arrogantly merciless in its judgment of the old. Its bright lexicon has no verdict "with mitigating circ.u.mstances." Youth is just when it is right; it is cruel when it is wrong; and it is inexorable in any case.

If we are ever to be tried for our crimes let us have juries of white whiskered old boys who like tobacco, crab flakes, light wines and musical comedy.

All of which leads up to the sad admission upon our part that Payson, Jr., was a prig. And in the very middle of his son's priggishness Payson, Sr., up and died, and Tutt and Mr. Tutt were called upon to administer his estate.

There may be concealed somewhere a few rare human beings who can look back upon their treatment of their parents with honest satisfaction. I have never met any. It is the fate of those who bring others into the world to be chided for their manners, abused for their mistakes, and pilloried for their faults. Twenty years difference in age turns many an elegance into a barbarism; many a virtue into a vice-versa. I do not perform at breakfast for the edification of my offspring upon the mustache cup, but I chew my strawberry seeds, which they claim is worse.

My grandpapa and grandmama used to pour the coffee from their cups and drink it from their saucers and they were--nevertheless--rated AA1 in Boston's Back Bay Blue Book. And now my daughters, who smoke cigarettes, object loudly to my pipe smoke! _Autre temps autres manieres_. And no man is a hero to his children. He has a hanged-sight more chance with his valet--if in these days he can afford to keep one.

His father's death was a shock to Payson, Jr., because he had not supposed that people in active business like that ever did die,--they "retired" instead, and after a discreet period of semi-seclusion gradually disintegrated by appropriate stages. But Payson, Sr., simply died right in the middle of everything--without any chance of a spiritual understanding--"reconciliation" would be inaccurate--with his son. So, Payson, Jr., protestingly acquired by part cash and balance credit a complete suit of what he scathingly described as "the barbarous panoply of death" and, turning himself into what he similarly called a "human catafalque," followed Payson, Sr., to the grave.

Perhaps, after all, we have been a bit hard on Payson, Jr. He was fundamentally, as his father had perceived, good stuff, and wanted to do the right thing. But what is the right thing? Really it isn't half as hard to be good as to know how.

As the orphaned Payson, ensconced in lonely state in one of the funeral hacks, was carried at a fast trot down Broadway towards the offices of Tutt & Tutt, he consoled himself for his loss with the reflection that this was, probably, the last time he would ever have to see any of his relatives. Never in his short life had he been face to face with such a gathering of unattractive human beings. He hadn't imagined that such people existed. They oughtn't to exist. The earth should be a lovely place, its real estate occupied only by cultured and lovely people.

These aesthetic considerations reminded him with a shock that, just as he had been an utter stranger to them, so he had been a stranger to his father--his poor, old, widowed father. What did he really know about him?--not one thing! And he had never tried to find out anything about him,--about his friends, his thoughts, his manner of life,--content merely to cash his checks, under the unconscious a.s.sumption that the man who drew them ought to be equally content to be the father of such a youth as himself. But those rusty relatives! They must have been his father's! Certainly his mother's wouldn't have been like that,--and he felt confident he took after his mother. Still, those relatives worried him! Up at Harvard he had stood rather grandly on his name--"Payson Clifford, Jr.,"--with no questions asked about the "Senior" or anybody else. He now perceived that he was to be thrown out into the world of fact where who and what his father had been might make a lot of difference. Rather anxiously he hoped the old gentleman would turn out to have been all right;--and would have left enough of an estate so that he could still go on cashing checks upon the first day of every month!