By Advice of Counsel

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."