By Advice of Counsel
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?" ejaculated 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 assured 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 Woodcock.
"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
entitled "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, Massachusetts, 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 crass 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., fagged 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 circumstances." 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 manières_. 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 assumption 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!
It was one of the unwritten laws of the office of Tutt & Tutt that Mr.