By Advice of Counsel

"That's no news," countered Mr. Tutt. "It was just as much of an evil in the time of Moses, of Julius Caesar, and of Edward the Confessor as it is now. There hasn't been anything approaching the flagrancy of Roman divorce in modern history."

"Thank heaven there's still enough to pay our office rent—anyhow!" said Tutt contentedly. "I hope they won't do anything so foolish as to pass a national divorce law."

"They won't," Mr. Tutt assured him. "Most Congressmen are lawyers and are not going to take the bread out of their children's mouths. Besides, the power to regulate the domestic relations of the United States, not being delegated under the Constitution to the Federal Government, is expressly retained by the states themselves."

"You've given me a whole lot of ideas," admitted Tutt. "If I get you rightly, as each state is governed by its own independent laws, the status of married persons must be governed by the law of the state where they are; otherwise if every couple on some theory of exterritoriality carried the law of the state where they happened to have been joined together round with them we would have the spectacle of every state in the union interpreting the divorce laws of every other state—confusion worse confounded."

"On the other hand," returned Mr. Tutt, "the law is settled that a marriage valid when made is valid everywhere; and conversely, if invalid where made is invalid everywhere—like our Mongolian case. If that were not so every couple in order to continue legally married would have to go through a new ceremony in every state through which they traveled."

"Right-o!" whistled Tutt. "A parson on every Pullman!"

"It follows," continued Mr. Tutt, lighting a fresh stogy and warming to his subject, "that as each state has the right to regulate the status of its own citizens it has jurisdiction to act in a divorce proceeding provided one of the parties is actually domiciled within its borders. Naturally this action must be determined by its own laws and not by those of any other state. The great divergence of these laws makes extraordinary complications."

"Hallelujah!" cried Tutt. "Now, in the words of the psalmist, you've said a mouthful! I know a man who at one and the same time is legally married to one woman in England, to another in Nevada, is a bigamist in New York, and—"

"What else could he be except a widower in Pittsburgh?" pondered the elder Tutt. "But it's quite possible. There's a case going on now where a woman in New York City is suing her ex-husband for a divorce on the usual statutory ground, and naming his present wife as co-respondent, though the plaintiff herself divorced him ten years ago in Reno, and he married again immediately after on the strength of it."

"I'm feeling stronger every minute!" exclaimed Tutt. "Surely in all this bedlam we ought to be able to acquit our new client Mr. Higgleby of the charge of bigamy. At least you ought to be able to. I couldn't."

"What's the difficulty?" queried Mr. Tutt.

"The difficulty simply is that he married the present Mrs. Higgleby on the seventeenth of last December here in the city of New York, when he had a perfectly good wife, whom he had married on the eleventh of the preceding May, living in Chicago."

"What on earth is the matter with him?" inquired Mr. Tutt.

"He simply says he's a traveling man," replied his partner, "and—he happened to be in New York."

"Well, the next time he calls, you send him in to see me," directed Mr. Tutt. "What was the present lady's name?"

"Woodcock," answered Tutt. "Alvina Woodcock."

"And she wanted to change to Higgleby?" muttered his partner. "I wonder why."

"Oh, there's something sort of appealing about him," acknowledged Tutt. "But he don't look like a bigamist," he concluded. "What does a bigamist look like?" meditated Mr. Tutt as he lit another stogy.

"Good morning, Mr. Tutt," muttered the Honorable Peckham from behind the imitation rubber plant in his office, where he was engaged in surreptitiously consuming an apple. "Um—be with you in a minute. What's on your mind?"

Mr. Tutt simultaneously removed his stogy with one hand and his stovepipe with the other.

"I thought we might as well run over my list of cases," he replied. "I can offer you a plea or two if you wish."

"Do I!" ejaculated the D.A., rolling his eyes heavenward. "Let's hear the Roll of Honor."

Mr. Tutt placed his hat, bottom side up, on the carpet and lowered himself into a huge leather armchair, furnished to the county by a political friend of Mr. Peckham and billed at four hundred per cent of the regular retail price. Then he reinserted the stogy between his lips and produced from his inside pocket a typewritten sheet.

"There's Watkins—murdered his stepmother—indicted seven months ago. Give you murder in the second?"

"I'll take it," assented Peckham, lighting a cigar in a businesslike manner. "What else you got?"

"Joseph Goldstein—burglary. Will you give him grand larceny in the second?"

The Honorable Peckham shook his head.

"Sorry I can't oblige you, old top," he said regretfully. "He's called the King of the Fences. If I did, the papers would holler like hell. I'll make it any degree of burglary, though."

"Very well. Burglary in the third," agreed Mr. Tutt, jotting it down. "Then here's a whole bunch—five—indicted together for assault on a bartender."

"What degree?"

"Second—brass knuckles."

"You can have third degree for the lot," grunted Peckham laconically.

"All right," said Mr. Tutt. "Now for the ones that are going to trial. Here's Jennie Smith, indicted for stealing a mandarin chain valued at sixty-five dollars up at Monahaka's. The chain's only worth about six-fifty and I can prove it. Monahaka don't want to go to trial because he knows I'll show him up for the Oriental flimflammer that he is. But of course she took it. What do you say? I'll plead her to petty and you give her a suspended sentence? That's a fair trade."

Peckham pondered.

"Sure," he said finally. "I'm agreeable. Only tell Jennie that next time I'll have her run out of town."

Mr. Tutt nodded.

"I'll whisper it to her. Now then, here's Higgleby—"

"Higgle who?" inquired Peckham dreamily.

"Bee—by—Higgleby," explained Mr. Tutt. "For bigamy. I want you to dismiss the indictment for me."

"What for?"

"You'll never convict him."

"Why not?"

"Just because you never will!" Mr. Tutt assured him with earnestness. "And you might as well wipe him off the list."

"Anything the matter with the indictment?" asked the D.A. "Caput Magnus drew it. He's a good man, you know."

Mr. Tutt drew sententiously on his stogy.

"I would like to tell you all my secrets," he replied after a pause, "but I can't afford to. The indictment is in the usual form. But just between you and me, you'll never convict Higgleby as long as you live."

"Didn't he marry two joint and several ladies?"

"He did."

"And one of 'em right here in New York County?"

"He did."

"Well, how in hell can I dismiss the indictment?"

"Oh, easily enough. Lack of proof as to the first marriage in Chicago, for instance. How are you going to prove he wasn't divorced?"

"That's matter of defense," retorted Peckham.

"What's a little bigamy between friends, anyway?" ruminated the old lawyer. "It's a kind of sumptuary offense. People will marry. And it's good policy to have 'em. If they happen to overdo it a little—"

"Well, if I do chuck the darn thing out what will you give me in return?" asked Peckham. "Of course, bigamy isn't my favorite crime or anything like that. I'm no bloodhound on matrimonial offenses. How'll you trade?"

"If you'll throw out Higgleby I'll plead Angelo Ferrero to manslaughter," announced Mr. Tutt with a grand air of bestowing largess upon an unworthy recipient.

"Cock-a-doodle-do!" chortled Peckham. "A lot you will! Angelo's halfway to the chair already yet!"

"That's the best I'll do," replied Mr. Tutt, feeling for his hat.

Peckham hesitated. Mr. Tutt was a fair dealer. And he wanted to get rid of Angelo.

"Give you murder in the second," he urged.

"Manslaughter."

"Nothing doing," answered the D.A. definitely. "Your Mr. Higglebigamy'll have to stand trial."

"Oh, very well!" replied Mr. Tutt, unjointing himself. "We're ready—whenever you are."

The old lawyer's lank figure had hardly disappeared out of the front office when Peckham rang for Caput Magnus.

"Look here, Caput," he remarked suspiciously to the indictment clerk, "is there anything wrong with that Higgledy indictment?"

"Higgleby, you mean, I guess," replied Mr. Magnus, regarding the D.A. in a superior manner over the tops of his horn-rimmed spectacles. "Nothing is the matter with the indictment. I have followed my customary form. It has stood every test over and over again. Why do you ask?"

The Honorable Peckham turned away impatiently.

"Oh—nothing. Look here," he added unexpectedly, "I think I'll have you try that indictment yourself."

"Me!" ejaculated Caput in horror. "Why, I never tried a case in my life!"

"Well, 's time you began!" growled the D.A.

"I—I—shouldn't know what to do!" protested Mr. Magnus in agony at the mere suggestion.

"Where the devil would we be if everybody felt like that?" demanded his master. "You're supposed to be a lawyer, aren't you?"

"But I—I—can't! I—don't know how!"

"Hang it all," cried Peckham furiously, "you go ahead and do as I say. You indicted Higgledy; now you can try Higgledy!"

He was utterly unreasonable, but his anger was genuine if baseless.

"Oh, very well, sir," stammered Mr. Magnus. "Of course I'll—I must—do whatever you say."

"You better!" shouted Peckham after his retreating figure. "You little blathering shrimp!"

Then he threw himself down in his swivel chair with a bang.

"Judas H. Priest!" he roared at the rubber plant. "I'd give a good deal for a decent excuse to fire that blooming nincompoop!"

Meantime, as the object of his ire slunk down the corridor darkness descended upon the soul of Caput Magnus. For Caput was what is known as an office lawyer and had never gone into court save as an onlooker or—as he would have phrased it—an amicus curiae. He was a perfect pundit—"a hellion on law," according to the Honorable Peckham—a strutting little cock on his own particular dunghill, but, stripped of his goggles, books, forms and foolscap, as far as his equanimity was concerned he might as well have been in face, figure and general objectionability. No longer could he be heard roaring for his stenographer. Instead, those of his colleagues who paused stealthily outside his door on their way over to Pont's for "five-o'clock tea" heard dulcet tones floating forth from the transom in varying fluctuations:

"Ahem! H'm! Gentlemen of the jury—h'm! The defendant is indicted for the outrageous crime of bigamy! No, that won't do! Gentlemen of the jury, the defendant is indicted for the crime of bigamy! H'm! The crime of bigamy is one of those atrocious offenses against the moral law—"

"Oh! Oh!" choked the legal assistants as they embraced themselves wildly. "Oh! Oh! Caput's practisin'! Just listen to 'im! Ain't he the little cuckoo! Bet he's takin' lessons in elocution! But won't old Tutt just eat him alive!"

And in the stilly hours of the early dawn those sleeping in tenements and extensions adjacent to the hall bedroom occupied by Caput were roused by a trembling voice that sought vainly to imitate the nonchalance of experience, declaiming: "Gentlemen of the jury, the defendant is indicted for the crime of bigamy! This offense is one repugnant to the instincts of civilization and odious to the tenets of religion!" And thereafter they tossed until breakfast time, bigamy becoming more and more odious to them every minute.

No form of diet, no physical exercise, no "reducicle" could have achieved the extraordinary alteration in Mr. Magnus' appearance that was in fact induced by his anxiety over his prospective prosecution of Higgleby. Whereas erstwhile he had been smug and condescending, complacent, lethargic and ponderous, he now became drawn, nervous, apprehensive and obsequious. Moreover, he was markedly thinner. He was obviously on a decline, caused by sheer funk. Speak sharply to him and he would shy like a frightened pony. The Honorable Peckham was enraptured, claiming now to have a system of getting even with people that beat the invention of Torquemada. When it was represented to him that Caput might die, fade away entirely, in which case the office would be left without any indictment clerk, the Honorable Peckham profanely declared that he didn't care a damn. Caput Magnus was going to try Higgleby, that was all there was to it! And at last the day came.

Gathered in Judge Russell's courtroom were as many of the office assistants as could escape from their duties, anxious to officiate at the legal demise of Caput Magnus. Even the Honorable Peckham could not refrain from having business there at the call of the calendar. It resembled a regular monthly conference of the D.A.'s professional staff, which for some reason Tutt and Mr. Tutt had also been invited to attend. Yea, the spectators were all there in the legal colosseum waiting eagerly to see Caput Magnus enter the arena to be gobbled up by Tutt & Tutt. They thirsted for his blood, having been for years bored by his brains. They would rather see Caput Magnus made mincemeat of than ninety-nine criminals convicted, even were they guilty of bigamy.

But as yet Caput Magnus was not there. It was ten-twenty-nine. The clerk was there; Mr. Higgleby, isosceles, flabby and acephalous as ever, was there; Tutt and Mr. Tutt were there; and Bonnie Doon, and the stenographer and the jury. And on the front bench the two wives of Higgleby sat, side by side, so frigidly that had that gentleman possessed the gift of prevision he would never have married either of them; Mrs. Tomascene Startup Higgleby and Mrs.—or Miss—Alvina Woodcock (Higgleby)—depending upon the action of the jury. The entire cast in the eternal matrimonial triangular drama was there except the judge and the prosecutor in the form of Caput Magnus.

And then, preceding the judge by half a minute only, his entrance timed histrionically to the second, he came, like Eudoxia, like a flame out of the east. In swept Caput Magnus with all the dignity and grace of an Irving playing Cardinal Wolsey. Haggard, yes; pale, yes; tremulous, perhaps; but nevertheless glorious in a new cutaway coat, patent-leather shoes, green tie, a rosebud blushing from his lapel, his hair newly cut and laid down in beautiful little wavelets with pomatum, his figure erect, his chin in air, a book beneath his arm, his right hand waving in a delicate gesture of greeting; for Caput had taken O'Leary's suggestion seriously, and had purchased that widely known and authoritative work to which so many eminent barristers owe their entire success—"How to Try a Case"—and in it he had learned that in order to win the hearts of the jury one should make oneself beautiful.

"What in hell's he done to himself?" gasped O'Leary to O'Brien.

"He'll make a wonderful corpse!" whispered the latter in response.

"Order in the court! His Honor the Judge of General Sessions!" bellowed an officer at this moment, and the judge came in.

Everybody got up. He bowed. Everybody bowed. Everybody sat down again. A few, deeply affected, blew their noses. Then His Honor smiled genially and asked what business there was before the court, and the clerk told him that they were all there to try a man named Higgleby for bigamy, and the judge, nodding at Caput, said to go ahead and try him.

In the bottom of his peritoneum Mr. Magnus felt that he carried a cold stone the size of a grapefruit. His hands were ice, his lips bloodless. And there was a Niagara where his hearing should have been. But he rose, just as the book told him to do, in all his beauty, and enunciated in the crystal tones he had learned during the last few weeks at Madam Winterbottom's school of acting and elocution—in syllables chiseled from the stone of eloquence by the lapidary of culture:

"If Your Honor please, I move the cause of the People of the state of New York against Theophilus Higgleby, indicted for bigamy."

Peckham and the rest couldn't believe their ears. It wasn't possible! That perfect specimen of tonsorial and sartorial art, warbling like a legal Caruso, conducting himself so naturally, easily and casually, couldn't be old Caput Magnus! They pinched themselves.

"Say!" ejaculated Peckham. "What's happened to him? When did Sir Henry sign up with us?"

Mr. Tutt across the inclosure in front of the jury box raised his bushy eyebrows and looked whimsically at the D. A. over his spectacles.

"Are you ready, Mr. Tutt?" inquired the judge.

"Entirely so, Your Honor," responded the lawyer.

"Then impanel a jury."

The jury was impaneled, Mr. Caput Magnus passing through that trying ordeal with great éclat.

"You may proceed to open your case," directed the judge.

The staff saw a very white Caput Magnus rise and bow in the direction of the bench. Then he stepped to the jury box and cleared his throat. His official associates held their breath expectantly. Would he—or wouldn't he? There was a pause.

Then: "Mister Foreman and gentlemen of the jury," declaimed Caput in flutelike tones: "The defendant is indicted for the crime of bigamy, an offense alike repugnant to religion, civilization and to the law."

The words flowed from him like a rippling sunlit stream; encircled him like a necklace of verbal jewels, a rosary, each word a pearl or a bead or whatever it is. With perfect articulation, enunciation and gesticulation Mr. Caput Magnus went on to inform his hearers that Mr. Higgleby was a bigamist of the deepest dye, that he had feloniously, wilfully and knowingly married two several females, and by every standard of conduct was utterly and entirely detestable.

Mr. Higgleby, flanked by Tutt and Mr. Tutt, listened calmly. Caput warmed to his task.

The said Higgleby, said he, had as aforesaid in the indictment committed the act of bigamy, to wit, of marriage when he had one legal wife already, in New York City on the seventeenth of last December, by marrying in Grace Church Chantry the lady whom they saw sitting by the other lady—he meant the one with the red feather in her bonnet—that is to say, her hat, whereas the other lady, as he had said aforesaid, had been lawfully and properly married to the defendant the preceding May, to wit, in Chicago as aforesaid—

"Pardon me!" interrupted the foreman petulantly. "Which is the lady you mean was married to the defendant in New York? You said she was sitting by the other lady and that you meant the one with the red feather, but you didn't say whether the one with the red feather was the other lady or the one you were talking about."

Caput gagged and turned pink.

"I—I—" he stammered. "The lady in the red bonnet is—the—New York lady."

"You mean she isn't his wife although the defendant went through the form of marriage with her, because he was already married to another," suggested His Honor. "You might, I think, put things a little more simply. However, do it your own way."

"Ye-es, Your Honor."

"Go on."

But Caput was lost—hopelessly. Every vestige of the composure so laboriously acquired at Madam Winterbottom's salon had evaporated. He felt as if he were swinging in midair hitched to a scudding aeroplane by a rope about his middle. The mucous membranes of his throat were as dry and as full of dust as the entrails of a carpet sweeper. His vision was blurred and he had no control over his muscles. Weakly he leaned against the table in front of the jury, the room swaying about him. The pains of hell gat hold upon him. He was dying. Even the staff felt compunction—all but the Honorable Peckham.

Judge Russell quickly sensed the situation. He was a kindly man, who had pulled many an ass out of the mire of confusion. So with a glance at Mr. Tutt he came to Caput's rescue.

"Let us see, Mr. Magnus," he remarked pleasantly; "suppose you prove the Illinois marriage first. Is Mrs. Higgleby in court?"

Both ladies started from their seats.

"Mrs. Tomascene Higgleby," corrected His Honor. "Step this way, please, madam!"

The former Miss Startup made her way diffidently to the witness chair and in a faint voice answered the questions relative to her marriage of the preceding spring as put to her by the judge. Mr. Tutt waved her aside and Caput Magnus felt returning strength. He had expected and prepared for a highly technical assault upon the legality of the ceremony performed in Cook County. He had anticipated every variety and form of question. But Mr. Tutt put none. He merely smiled benignly upon Caput in an avuncular fashion.

"Have you no questions, Mr. Tutt?" inquired His Honor.

"None," answered the lawyer.

"Then prove the bigamous marriage," directed Judge Russell.

Then rose at the call of justice, militantly and with a curious air of proprietorship in the overmarried defendant, the wife or maiden who in earlier days had answered to the name of Alvina Woodcock. Though she was the injured party and though the blame for her unfortunate state rested entirely upon Higgleby, her resentment seemed less directed toward the offending male than toward the Chicago lady who was his lawful wife. There was no question as to the circumstances to which she so definitely and aggressively testified. No one could gainsay the deplorable fact that she had, as she supposed, been linked in lawful wedlock to Mr. Tutt's isosceles client. But there was that in her manner which suggested that she felt that being the last she should be first, that finding was keeping, and that possession was nine points of matrimonial law.

And, as before, Mr. Tutt said nothing. Neither he nor Tutt nor Bonnie Doon nor yet Higgleby showed any the least sign of concern. Caput's momentarily returning self-possession forsook him. What portended his ominous silence? Had he made some horrible mistake? Had he overlooked some important jurisdictional fact? Was he now to be hoist for some unknown reason by his own petard? He was, poor innocent—he was!

"That is the case," he announced faintly. "The People rest."

Judge Russell looked down curiously at Mr. Tutt.

"Well," he remarked, "how about it, Mr. Tutt?"

But the old lawyer only smiled.

"Come here a minute," directed His Honor.

And when Mr. Tutt reached the bench the judge said: "Have you any defense in this case? If not, why don't you plead guilty and let me dispose of the matter?"

"But, Your Honor," protested Mr. Tutt, "of course I have a defense—and a most excellent one!"

"You have?"

"Certainly."

The judged elevated his forehead.

"Very well," he remarked; "if you really have one you had better go on with it. And," he added beneath his breath, but in a tone clearly audible to the clerk, "the Lord have mercy on your soul!"

The assistants saw Caput subside into his chair and simultaneously Mr. Tutt slowly raise his lank form toward the ceiling.

"Gentlemen of the jury," said he benignly: "My client, Mr. Higgleby, is charged in this indictment with the crime of bigamy committed here in New York, in marrying Alvina Woodcock—the strong-minded lady on the front row of benches there—when he already had a lawful wife living in Chicago. The indictment alleges no other offense and the district attorney has not sought to prove any, my learned and eloquent adversary, Mr. Magnus, having a proper regard for the constitutional rights of every unfortunate whom he brings to the bar of justice. If therefore I can prove to you that Mr. Higgleby was never lawfully married to Tomascene Startup in Chicago on the eleventh of last May or at any other time, the allegation of bigamy falls to the ground; at any rate so far as this indictment is concerned. For unless the indictment sets forth a valid prior marriage it is obvious that the subsequent marriage cannot be bigamous. Am I clear? I perceive by your very intelligent facial expressions that I am. Well, my friends, Mr. Higgleby never was lawfully married to Tomascene Startup last May in Chicago, and you will therefore be obliged to acquit him! Come here, Mr. Smithers."

Caput Magnus suddenly experienced the throes of dissolution. Who was Smithers? What could old Tutt be driving at? But Smithers—evidently the Reverend Sanctimonious Smithers—was already placidly seated in the witness chair, his limp hands folded across his stomach and his thin nose looking interrogatively toward Mr. Tutt.