By Advice of Counsel
the perversion of justice to accomplish which the law had been invoked.
"I'm sorry! No doubt he's a good feller. But he's guilty, isn't he?
Admitted it in the police court, didn't he?"
"I expect you to temper justice with mercy," replied Mr. Tutt earnestly.
"This old man's whole life has been devoted to relieving the sufferings
of animals. He's a genuine Samaritan."
"That's like saying that a thief has done good with his plunder, isn't
it?" commented Peckham. "Look here, Tutt, of course I hope you get your
man off and all that, but if I personally threw the case out I'd have
all the vets in the city on my neck. You see the motors have pretty
nearly put 'em all out of business. There aren't enough sick horses to
go round, so they've been conducting a sort of crusade. Tough luck--but
the law is the law. And I have to enforce it--ostensibly, anyway."
"Very well," answered the old lawyer amiably but defiantly. "Then if
you've got to enforce the law against a fine old chap like that I've got
to do my darnedest to smash that law higher than a kite. And I'll tell
you something, Peckham--which is that the human heart is a damn sight
bigger than the human conscience."
* * * * *
Danny Lowry had lived for years in fear of the blow which had so
suddenly struck him down, for there had never been any blinking of the
obvious fact that in acting as an unlicensed veterinary he was brazenly
violating the law. On the other hand, not being able to read or write,
and having no technical knowledge of medicine, all his experience, all
his skill, all his love of animals could avail him nothing so far as
securing a license was concerned. He could not read an examination
paper, but he could interpret the symptoms seen in a trembling neck and
a lack-luster eye. Danny had no choice but to break the law or abandon
the only career for which he had an aptitude, or by which he could hope
to earn a living at his age. His crime was _malum prohibitum_, not
_malum in se_, but it was, nevertheless, a violation of a most necessary
law. Certainly none of us wish to be doctored by tyros or humbugs, or to
have our animals treated by them. Only Danny was neither a tyro nor a
humbug, and had he not been a lawbreaker the world would have been to
some extent the loser.
Yet by all the canons of ethics and justice it was most improper for Mr.
Tutt to hurry off to the Tombs and bail out old Danny Lowry, a
self-confessed lawbreaker, giving his own bond and the house on
Twenty-third Street as security. Still more so, as more unblushingly
ostentatious, was his taking the criminal over to Pont's and giving him
the very best dinner that Signor Faccini, proprietor of that celebrated
hostelry, could purvey.
Hard cases are said to make bad law; I wonder if they make bad people.
If "conscience makes cowards of us all" does human sympathy play ducks
and drakes with conscience? Does it blind the eye of reason? Rather,
does it not illumine and expose the fallacies of logic and the falsities
of the syllogism? Do two and two make four in human polity as in
mathematics? Sometimes it would not seem so.
Certainly you would have picked Mr. Bently Gibson, of The Gibson Woolen
Mills, as a model juror. One look at him as a prospective talesman in a
murder case and you would have unhesitatingly murmured, "The defense
challenges peremptorily!" His broad forehead, large well-shaped nose,
firm chin and clear calm eye evidenced his common sense, his
conscientiousness and his uncompromising adherence to principle. His
customs declarations were complete to the smallest item, his income-tax
returns models of self-sacrifice, he was patriotic and civic, he
belonged to the Welfare League and the Citizens' Union, and--I hesitate
to confess it--he subscribed to the annual deficit of the Society for
the Suppression of Sin. On the face of it, he was the kind of man the
district attorney tries to select as foreman of a jury when he has to
prosecute a woman who had kidnaped her own child out of a foundling
asylum.
The heelers and hangers-on of the criminal courts would have described
him as a highbrow and as a holier-than-thou; perhaps he might in a
moment of jocularity have even so described himself--for he had his
human--perhaps I should have said, his weaker--side. Surely he seemed
human enough when he kissed Eleanor good-by at the door of their country
place on the Sound the morning he had been subpoenaed to serve as a
juryman in Part Five of the General Sessions. He had planned to take a
week's holiday that spring, and he had gone to infinite trouble to
arrange his business in order to have it, for they had become engaged
eleven years before at the moment when the apple blossoms and the
dogwoods were at the height of their glory, even as they were now.
When, however, he found the brown subpoena at his office directing him
to present himself for service the following Monday he simply gave a
half sigh, half grunt of disgust, and let the longed-for vacation go;
for one of his pet theories was that the jury system was the chief
bulwark of the Constitution, the cornerstone of liberty. Had he only
been disingenuous enough he need never have served on any jury, for no
lawyer for the defense hearing him enlarge on what he considered the
duties of a juryman to be, would ever have allowed him in the box. But
when other chaps on the panel presented their excuses to the judge and
managed to persuade him of the imperative needs of family or business,
and slipped--grinning discreetly--out of the court room, he merely
inaudibly called them welshers and pikers. No, he regarded jury service
as a duty and a privilege, one not to be lightly avoided--the one common
garden governmental function in which Uncle Sam expected every citizen
to do his duty.
"I won't let any of the rogues get by me!" he shouted gaily to his wife
over the back of the motor. "And anyhow I shan't be locked up all night.
There aren't any murder cases on the calendar. I'll be out on the
five-fifteen as usual."
Alas, poor Bently! Alas for human frailty and all those splendid
visions in which he pictured himself as the anchor of the ship of
justice, a prop and stay of the structure of democracy.
His train was a trifle late and the roll of the jury had already been
called, and the perennial excuses heard, when he entered the court room;
but the clerk, who knew him, nodded in a welcoming manner, checked him
off as present and dropped his name card in the revolving wheel. It was
a well-known scene to Bently, a veteran of fifteen years' service. Even
the actors were familiar friends--the pink-faced judge with his
snow-white whiskers, who at times suggested to Bently an octogenarian
angel, and, at others, a certain ancient baboon once observed in the
Primates cage at the Bronz Zoo; the harried, anxious little clerk with
his paradoxically grandiloquent intonation; the comedy assistant
district attorney with his wheezy voice emanating from a Falstaffian
body, who suffered from a soporific malady and was accustomed to open a
case and then let it take care of itself while he slumbered audibly
beneath the dais; even Ephraim Tutt, the gaunt, benignly
whimsical-looking attorney, in his rusty-black frock coat and
loose-hanging tie; his rotund partner, whose birdlike briskness and fat
paunch inevitably brought to mind a distended robin in specs; and the
_dégagé_ Bonnie Doon in his cut-in-at-the-waist checked suit--he knew
them all of old.
"Well, call your first case, Mister District Attorney!" directed the
judge, nodding encouragingly at Bently, well knowing that in him he had
a staunch upholder of the law-as-it-is, who could be depended upon to
bolster up his weaker or more sentimental brother talesmen into the
proper convicting attitude of mind.
Then--as per the schedule in force for at least an epoch--good-natured,
pot-bellied Tom Hingman, the oldest A.D.A. in the office, rose heavily,
fumbled with his stubby fingers among the blue indictments on the table,
drew one forth, panted a few times, gasped out "People against Daniel
Lowry," and looked round in a pseudo-helpless way as if not knowing
exactly what to do.
There was a slight stir, and from the back of the court room came
forward a funny little bow-legged old man, carrying in both hands a
funny little flat-topped derby hat, and took his seat timidly at the bar
of justice beside Mr. Tutt, who smiled down at him affectionately and
put his arm about the threadbare shoulders as if to protect him from the
evils of the world. They made a quaint and far from unpleasing picture,
thought Bently Gibson, the ideal juror, and he wondered what the poor
old devil could be up for.
A jury was impaneled, Bently among them; the balance of the panel was
excused until two o'clock; the court room was cleared of loafers; the
judge perused the indictment with a practised eye; Tom Hingman rose
again, wheezed and grinned at the embattled jury; and the mill of
justice began to grind.
Now the mill of justice, at least in the General Sessions of New York
County, grinds exceeding fine, so far as the number of convictions is
concerned. Of those brought to the bar for trial few escape; for modern
talesmen, being hard-headed men, regard the whole thing as a matter of
business and try to get through with it as quickly and as efficiently as
possible. The bombastic spread-eagle orator, the grandiloquent gas bag,
the highfaluting stump speaker gain few verdicts and win small applause
except from their clients. And district attorneys who ape the bloodhound
in their mien and tactics win scant approval and less acquiescence from
the bored gentlemen who are forced to listen to them. Nowadays--whatever
may have been the case two generations ago--each side briefly states its
claims and tries to win on points.
People were apt to wonder why each succeeding administration inevitably
retained stuffy old Tom Hingman at seventy-five hundred dollars a year
to handle the calendar in Part Five. Yet those on the inside knew why
very well. It was because Tom long ago, in his prehistoric youth, had
learned that the way to secure verdicts was to appear not to care a
tinker's dam whether the jury found the defendant guilty or not. He
pretended never to know anything about any case in advance, to be in
complete ignorance as to who the witnesses might be and to what they
were going to testify, and to be terribly sorry to have to prosecute the
unfortunate at the bar, though he wasn't to blame for that any more than
the jury were for having to find him guilty if proven to be so, which,
it seemed to him, he had been clearly proven to be. I say Tom pretended
all this, yet it was more than half true, for Tom was a kind-hearted old
bird. But the point was that, whether true or not, it got convictions.
The jury sucking it all up in its entirety felt sorrier for the
simple-minded old softy of a Tom, which they believed him to be, than
they did for the defendant, who they concluded was a good deal cleverer
than the assistant district attorney.
In a word, it put them on their honor as public officers not to let the
administration of justice suffer merely because the A.D.A. was too old
and easy-going and generally slab-sided to be really on his job. Thus,
they became prosecuting attorneys themselves--in all, thirteen to one.
So Tom, having thus delegated his functions to the jury, calmly left it
all to them and went to sleep, which was the best thing that he did.
Worth seventy-five hundred a year? Rather, seventy-five thousand!
"Gentlemen of the jury," he began haltingly, "this defendant seems to
have been indicted for the crime of practising medicine without a
license--a misdemeanor. I don't see exactly how he gets into this court,