By Advice of Counsel
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,