And yet old Ephraim Tutt could on occasion be cold as chiseled steel, and as hard. Any appeal from a child, a woman or an outcast always met with his ready response; but for the rich, successful and those in power he seemed to entertain a deep and enduring grudge. He would burn the midnight oil with equal zest to block a crooked deal on the part of a wealthy corporation or to devise a means to extricate some no less crooked rascal from the clutches of the law, provided that the rascal seemed the victim of hard luck, inheritance or environment. His weather-beaten conscience was as elastic as his heart. Indeed when under the expansive influence of a sufficient quantity of malt extract or ancient brandy from the cellaret on his library desk he had sometimes been heard to enunciate the theory that there was very little difference between the people in jail and those who were not.
He would work weeks without compensation to argue the case of some guilty rogue before the Court of Appeals, in order, as he said, to "settle the law," when his only real object was to get the miserable fellow out of jail and send him back to his wife and children. He went through life with a twinkling eye and a quizzical smile, and when he did wrong he did it—if such a thing is possible—in a way to make people better. He was a dangerous adversary and judges were afraid of him, not because he ever tricked or deceived them but because of the audacity and novelty of his arguments which left them speechless. He had the assurance that usually comes with age and with a lifelong knowledge of human nature, yet apparently he had always been possessed of it.
Once a judge having assigned him to look out for the interests of a lawyerless prisoner suggested that he take his new client into the adjoining jury room and give him the best advice he could. Mr. Tutt was gone so long that the judge became weary, and to find out what had become of him sent an officer, who found the lawyer reading a newspaper beside an open window, but no sign of the prisoner. In great excitement the officer reported the situation to the judge, who ordered Mr. Tutt to the bar.
"What has become of the prisoner?" demanded His Honor.
"I do not know," replied the lawyer calmly. "The window was open and I suspect that he used it as a means of exit."
"Are you not aware that you are a party to an escape—a crime?" hotly challenged the judge.
"I most respectfully deny the charge," returned Mr. Tutt.
"I told you to take the prisoner into that room and give him the best advice you could."
"I did!" interjected the lawyer.
"Ah!" exclaimed the judge. "You admit it! What advice did you give him?"
"The law does not permit me to state that," answered Mr. Tutt in his most dignified tones. "That is a privileged communication from the inviolate obligation to preserve which only my client can release me—I cannot betray a sacred trust. Yet I might quote Cervantes and remind Your Honor that 'Fortune leaves always some door open to come at a remedy!'"
Now as he gazed at the tear-stained cheeks of the girl-wife whose husband had committed murder in defense of her self-respect, he vowed that so far as he was able he would fight to save him. The more desperate the case the more desperate her need of him—the greater the duty and the greater his honor if successful.
"Believe that I am your friend, my dear!" he assured her. "You and I must work together to set Angelo free."
"It's no use," she returned less defiantly. "He done it. He won't deny it."
"But he is entitled to his defense," urged Mr. Tutt quietly.
"He won't make no defense."
"We must make one for him."
"There ain't none. He just went and killed him."
Mr. Tutt shrugged his shoulders.
"There is always a defense," he answered with conviction. "Anyhow we can't let him be convicted without making an effort. Will they be able to prove where he got the pistol?"
"He didn't get the pistol," retorted the girl with a glint in her black eyes. "I got it. I'd ha' shot him myself if he hadn't. I said I was goin' to, but he wouldn't let me."
"Dear, dear!" sighed Mr. Tutt. "What a case! Both of you trying to see which could get hanged first!"
The inevitable day of Angelo's trial came. Upon the bench the Honorable Mr. Justice Babson glowered down upon the cowering defendant flanked by his distinguished counsel, Tutt & Tutt, and upon the two hundred good and true talesmen who, "all other business laid aside," had been dragged from the comfort of their homes and the important affairs of their various livelihoods to pass upon the merits of the issue duly joined between The People of the State of New York and Angelo Serafino, charged with murder.
One by one as his name was called each took his seat in the witness chair upon the voir dire and perjured himself like a gentleman in order to escape from service, shyly confessing to an ineradicable prejudice against the entire Italian race and this defendant in particular, and to an antipathy against capital punishment which, so each unhesitatingly averred, would render him utterly incapable of satisfactorily performing his functions if selected as a juryman. Hardly one, however, but was routed by the Machiavellian Babson. Hardly one, however ingenious his excuse—whether about to be married or immediately become a father, whether engaged in a business deal involving millions which required his instant and personal attention whether in the last stages of illness or obligated to be present at the bedside of a dying wife—but was browbeaten into helplessness and ordered back to take his place amidst the waiting throng of recalcitrant citizens so disinclined to do their part in elevating that system of trial by jury the failure of which at other times they so loudly condemned.
This trifling preliminary having been concluded, the few jurymen who had managed to wriggle through the judicial sieve were allowed to withdraw, the balance of the calendar was adjourned, those spectators who were standing up were ordered to sit down and those already sitting down were ordered to sit somewhere else, the prisoners in the rear of the room were sent back to the Tombs to await their fate upon some later day, the reporters gathered rapaciously about the table just behind the defendant, a corpulent Ganymede in the person of an aged court officer bore tremblingly an opaque glass of yellow drinking water to the bench, O'Brien the prosecutor blew his nose with a fanfare of trumpets, Mr. Tutt smiled an ingratiating smile which seemed to clasp the whole world to his bosom—and the real battle commenced; a game in which every card in the pack had been stacked against the prisoner by an unscrupulous pair of officials whose only aim was to maintain their record of convictions of "murder in the first" and who laid their plans with ingenuity and carried them out with skill and enthusiasm to habitual success.
They were a grand little pair of convictors, were Babson and O'Brien, and woe unto that man who was brought before them. It was even alleged by the impious that when Babson was in doubt what to do or what O'Brien wanted him to do the latter communicated the information to his conspirator upon the bench by a system of preconcerted signals. But indeed no such system was necessary, for the judge's part in the drama was merely to sustain his colleague's objections and overrule those of his opponent, after which he himself delivered the coup de grace with unerring insight and accuracy. When Babson got through charging a jury the latter had always in fact been instructed in brutal and sneering tones to convict the defendant or forever after to regard themselves as disloyal citizens, oath violators and outcasts though the stenographic record of his remarks would have led the reader thereof to suppose that this same judge was a conscientious, tender-hearted merciful