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,
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.