By Advice of Counsel
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