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