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 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