STATE
SVLVANZA
re
LEGE
1855
THE PENNSYLVANIA
STATE COLLEGE
LIBRARY
2729
1281

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45GR
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1875-
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Zu will no WN
“I wonder, Mr. Tutt, if you would be willing to take a criminal case
where there wouldn't be any prospect of a fee, simply to
prevent a possible miscarriage of justice?"
-
-


TUTT AND MR. TUTT
BY
ARTHUR TRAIN
FORMERLY ASSISTANT DISTRICT ATTORNEY
NEW YORK COUNTY
ILLUSTRATED
NEW YORK
CHARLES SCRIBNER'S SONS
1922


T685 Teach
t
NSYLVANIA STEZ
COPYRIGHT, 1920, BY
CHARLES SCRIBNER'S SONS
COPYRIGHT, 1919, 1920, BY THE CURTIS PUBLISHING CO.
Printed in the United States of America
LECE
PLESS


CONTENTS
THE HUMAN ELEMENT
PAGE
I
MOCK HEN AND MOCK TURTLE
49
SAMUEL AND DELILAH
ΙΟΙ
.
THE DOG ANDREW
143
186
WILE Versus GUILE
HEPPLEWHITE TRAMP .
LALLAPALOOSA LIMITED
222
.
.
266
382440


-


ILLUSTRATIONS
“I wonder, Mr. Tutt, if you would be willing to
take a criminal case where there wouldn't be
any prospect of a fee, simply to prevent a possi-
ble miscarriage of justice"
Frontispiece
FACING
PAGE
“I have indeed! ... That is, if it is what you call
a case for a man to promise to marry a woman
and then refuse to do so."
126
.
"I always said that if I ever was in trouble you'd be
the one to whom I should go to help me out”. 202
.
"I shall tell this miserable cheating rogue
either to pay you a hundred thousand dollars
or go to hell”
301





Tutt and Mr. Tutt
sitting in the corner watching me for fear I'd slip
his prisoner a saw file or a shotgun or a barrel of
poison. I'm all in! These murder cases drive me
to drink, Mr. Tutt. I don't mind grand larceny,
forgery, assault or even manslaughter—but mur.
der gets my goat! And when you have a crazy
Italian for a client who says he's glad he did it and
would like to do it again-please excuse me! It
isn't law; it's suicide !"
He drew out a silk handkerchief ornamented
with the colors of the Allies, and wiped his fore-
head despairingly.
“Oh,” remarked Mr. Tutt with entire good
nature. "He's glad he did it and he's quite willing
to be hanged !"
“That's it in a nutshell!” replied Tutt.
The senior partner of Tutt & Tutt ran his bony
fingers through the lank gray locks over his left
eye and tilted ceilingward the stogy between his
thin lips. Then he leaned back in his antique swivel
chair, locked his hands behind his head, elevated
his long legs luxuriously, and crossed his feet upon
the fourth volume of the American and English
Encyclopedia of Law, which lay open upon the
desk at Champerty and Maintenance. Even in
this inelegant and relaxed posture he somehow
managed to maintain the air of picturesque digo
nity which always made his tall, ungainly figure
2


The Human Element
noticeable in any courtroom. Indubitably Mr.
Ephraim Tutt suggested a past generation, the sug-
gestion being accentuated by a slight pedantry of
diction a trifle out of character with the rushing
age in which he saw fit to practise his time-honored
profession. “Cheer up, Tutt,” said he, pushing
a box of stogies toward his partner with the toe
of his congress boot. “Have a weed?"
Since in the office of Tutt & Tutt such an invita-
tion, like those of royalty, was equivalent to a
coi nand, Tutt acquiesced.
“Thank you, Mr. Tutt," said Tutt, looking
about vaguely for a match.
“That conscienceless brat of a Willie steals 'em
all,” growled Mr. Tutt. “Ring the bell.”
Tutt obeyed. He was a short, brisk little man
with a pronounced abdominal convexity, and he
maintained toward his superior, though but a few
years his junior, a mingled attitude of awe, admira-
tion and affection such as a dickey bird might adopt
toward a distinguished owl.
This attitude was shared by the entire office
force. Inside the ground glass of the outer door
Ephraim Tutt was king. To Tutt the opinion of
Mr. Tutt upon any subject whatsoever was law,
even if the courts might have held to the contrary.
To Tutt he was the eternal fount of wisdom, cul-
ture and morality. Yet until Mr. Tutt finally eluci-
3


Tutt and Mr. Tutt
'dated his views. Tutt did not hesitate to hold condi-
tional if temporary opinions of his own. Briefly
their relations were symbolized by the circumstance
that while Tutt always addressed his senior partner
as "Mr. Tutt," the latter accosted him simply as
“Tutt.” In a word there was only one Mr. Tutt
in the firm of Tutt & Tutt.
But so far as that went there was only one
Tutt. On the theory that a lily cannot be painted,
the estate of one seemingly was as dignified as that
of the other. At any rate there never was and
never had been any confusion or ambiguity arising
out of the matter since the day, twenty years before,
when Tutt had visited Mr. Tutt's law office in
search of employment. Mr. Tutt was just rising
into fame as a police-court lawyer. Tutt had only
recently been admitted to the bar, having aban-
doned his native city of Bangor, Maine, for the
metropolis.
"And may I ask why you should come to me?"
Mr. Tutt had demanded severely from behind the
stogy, which even at that early date had been as
much a part of his facial anatomy as his long
ruminative nose. "Why the devil should you come
to me? I am nobody, sir—nobody! In this great
city certainly there are thousands far more quali-
fied than I to further your professional and
financial advancement."
4


The Human Element
"Because," answered the inspired Tutt with
modesty, “I feel that with you I should be asso-
ciated with a good name.”
That had settled the matter. They bore no
relationship to one another, but they were the only
Tutts in the city and there seemed to be a certain
propriety in their hanging together. Neither had
regretted it for a moment, and as the years passed
they became indispensable to each other. They
were the necessary component parts of a harmoni-
ous legal whole. Mr. Tutt was the brains and the
voice, while Tutt was the eyes and legs of a com-
bination that at intervals—rare ones, it must be
confessed-made the law tremble, sometimes in
fear and more often with joy.
At first, speaking figuratively, Tutt merely car-
ried Mr. Tutt's bag—rode on his coat tails, as it
were; but as time went on his activity, ingenuity
and industry made him indispensable and led to
a junior partnership. Tutt prepared the cases for
Mr. Tutt to try. Both were well versed in the
law if they were not profound lawyers, but as the
origin of the firm was humble, their practise was
of a miscellaneous character.
“Never turn down a case," was Tutt's motto.
"Our duty as sworn officers of the judicial
branch of the Government renders it incumbent
upon us to perform whatever services our clients'
5


Tutt and Mr. Tutt
exigencies demand," was Mr. Tutt's way of put-
ting it.
In the end it amounted to exactly the same thing.
As a result, in addition to their own clientele, other
members of the bar who found themselves encum-
bered with matters which for one reason or another
they preferred not to handle formed the habit of
turning them over to Tutt & Tutt. A never-ending
stream of peculiar cases flowed through the office,
each leaving behind it some residuum of golden
'dust, however small. The stately or, as an unkind
observer might have put it, the ramshackly form
of the senior partner was a constant figure in all
the courts, from that of the coroner on the one
hand to the appellate tribunals upon the other. It
was immaterial to him what the case was about
whether it dealt with the “next eventual estate"
or the damages for a dog bite-so long as he was
paid and Tutt prepared it. Hence Tutt & Tutt
prospered. And as the law, like
any
other
pro-
fession, requires jacks-of-all-trades, the firm ac-
quired a certain peculiar professional standing of
its own, and enjoyed the good will of the bar as
a whole.
They had the reputation of being sound lawyers
if not overafflicted with a sense of professional
dignity, whose word was better than their bond,
yet who, faithful to their clients' interests knew
6


The Human Element
no mercy and gave no quarter. They took and
pressed cases which other lawyers dared not touch
lest they should be defiled—and nobody seemed to
think any the less of them for so doing. They
raised points that made the refinements of the
ancient schoolmen seem blunt in comparison. No
respecters of persons, they harried the rich and
taunted the powerful, and would have as soon
jailed a bishop or a judge as a pickpocket if he
deserved it. Between them they knew more kinds
of law than most of their professional brethren,
and as Mr. Tutt was a bookworm and a seeker
after legal and other lore their dusty old library
was full of hidden treasures, which on frequent
occasions were unearthed to entertain the jury or
delight the bench. They were loyal friends, fear-
some enemies, high chargers, and maintained their
unique position in spite of the fact that at one time
or another they had run close to the shadowy line
which divides the ethical from that which is not,
Yet Mr. Tutt had brought disbarment proceed-
ings against many lawyers in his time and—what
is more-had them disbarred.
"Leave old Tutt alone,” was held sage advice,
and when other lawyers desired to entertain the
judiciary they were apt to invite Mr. Tutt to be
of the party. And Tutt gloried in the glories of
Mr. Tutt.
7


Tutt and Mr. Tutt
“That's it!" repeated Tutt as he lit his stogy,
which flared
up
like a burning bush, the cub of a
Willie having foraged successfully in the outer
office for a match. “He's willing to be hanged or
damned or anything else just for the sake of putting
a bullet through the other fellow !"
“What was the name of the unfortunate
deceased?"
"Tomasso Crocedoro—a barber."
"That is almost a defense in itself," mused Mr.
Tutt. “Anyhow, if I've got to defend Angelo
for shooting Tomasso you might as well give me
a short scenario of the melodrama. By the way,
are we retained or assigned by the court?”
"Assigned," chirped Tutt.
"So that all we'll get out of it is about enough
to keep me in stogies for a couple of months !"
“And—if he's convicted, as of course he will
bema good chance of losing our reputation as suc-
cessful trial counsel. Why not beg off ?”
"Let me hear the story first," answered Mr.
Tutt. "Angelo sounds like a good sport. I have
a mild affection for him already.”
He reached into the lower compartment of his
desk and lifted out a tumbler and a bottle of malt
extract, which he placed carefully at his elbow.
Then he leaned back again expectantly.
"It is a simple and naive story," began Tutt,
8


The Human Element
seating himself in the chair reserved for paying
clients—that is to say, one which did not have the
two front legs sawed off an inch or so in order to
make lingering uncomfortable. “A plain, unvar-
nished tale. Our client is one who makes an honest
living by blacking shoes near the entrance to the
Brooklyn Bridge. He is one of several hun-
dred original Tonys who conduct shoe-shining
emporiums."
“Emporia,” corrected his partner, pouring out
a tumbler of malt extract.
“He formed an attachment for a certain young
lady," went on Tutt, undisturbed, "who had previ-
ously had some sort of love affair with Crocedoro,
as a result of which her social standing had become
slightly impaired. In a word Tomasso jilted her.
Angelo saw, pitied and loved her, took her for
better or
for
worse,
and married her."
"For which," interjected Mr. Tutt, "he is
entitled to everyone's respect."
“Quite so!" agreed Tutt. "Now Tomasso,
though not willing to marry the girl himself, seems
to have resented the idea of having anyone else do
so, and accordingly seized every opportunity which
presented itself to twit Angelo about the matter.'
"Dog in the manger, so to speak,” nodded Mr.
Tutt.
“He not only jeered at Angelo for marrying
9


Tutt and Mr. Tutt
Rosalina but he began to hang about his discarded
mistress again and scoff at her choice of a husband.
But Rosalina gave him the cold shoulder, with the
result that he became more and more insulting to
Angelo. Finally one day our client made up his
mind not to stand it any longer, secured a revolver,
sought out Tomasso in his barber shop and put a
bullet through his head. Now however much you
may sympathize with Angelo as a man and a hus-
band, there isn't the slightest doubt that he killed
Tomasso with every kind of deliberation and
premeditation."
“If the case is as you say," replied Mr. Tutt,
replacing the bottle and tumbler within the lower
drawer and flicking a stogy ash from his waist-
coat, “the honorable justice who handed it to us
is no friend of ours.
“He isn't,” assented his partner. “It was Bab-
son, and he hates Italians. Moreover, he stated
in open court that he proposed to try the case him-
self next Monday and that we must be ready
without fail.”
"So Babson did that to us!" growled Mr. Tutt.
"Just like him. He'll pack the jury and charge
our innocent Angelo into the middle of hades."
“And O'Brien is the assistant district attorney
in charge of the prosecution,” mildly added Tutt.
“But what can we do? We're assigned, we've got
a guilty client, and we've got to defend him.”
TIILI
10


The Human Element
"Have you set Bonnie Doon looking up wit-
nesses ?" asked Mr. Tutt. "I thought I saw him
outside during the forenoon."
“Yes," replied Tutt. “But Bonnie says it's the
toughest case he ever had to handle in which to
find any witnesses for the defense. There aren't
any. Besides, the girl bought the gun and gave
it to Angelo the same day.”
'How do you know that?” demanded Mr. Tutt,
frowning.
“Because she told me so herself,” said Tutt.
“She's outside if you want to see her.”
“I might as well give her what you call 'the
once over,'” replied the senior partner.
Tutt retired and presently returned half leading,
half pushing a shrinking young Italian woman,
shabbily dressed but with the features of one of
Raphael's madonnas. She wore no hat and her
hands and finger nails were far from clean, but
from the folds of her black shawl her neck rose
like a column of slightly discolored Carrara marble,
upon which her head with its coils of heavy hair
was poised with the grace of a sulky empress.
“Come in, my child, and sit down,” said Mr.
Tutt kindly. "No, not in that one; in that one."
He indicated the chair previously occupied by his
junior. "You can leave us, Tutt. I want to talk
to this young lady alone.”
The girl sat sullenly with averted face, showing
11


Tutt and Mr. Tutt
in her attitude her instinctive feeling that all offi-
cers of the law, no matter upon which side they
were supposed to be, were one and all engagea in
a mysterious conspiracy of which she and her unfor-
tunate Angelo were the victims. A few words
from the old lawyer and she began to feel more
confidence, however. No one, in fact, could help
but realize at first glance Mr. Tutt's warmth of
heart. The lines of his sunken cheeks if left to
themselves automatically tended to draw together
into a whimsical smile, and it required a positive
act of will upon his part to adopt the stern and
relentless look with which he was wont to glower
down upon some unfortunate witness in cross-
examination.
Inside Mr. Tutt was a benign and rather mel-
low old fellow, with a dry sense of humor and a
very keen knowledge of his fellow men. He made
a good deal of money, but not having any wife or
child upon which to lavish it he spent it all either
on books or surreptitiously in quixotic gifts to
friends or strangers whom he either secretly ad-
mired or whom he believed to be in need of money.
There were vague traditions in the office of pres-
ents of bizarre and quite impossible clothes made to
office boys and stenographers; of ex-convicts reout-
fitted and sent rejoicing to foreign parts;
gorged to repletion and then pumped dry of their
of tramps
12


The Human Element
adventures in Mr. Tutt's comfortable, dingy old
library; of a fur coat suddenly clapped upon the
rounded shoulders of old Scraggs, the antiquated
scrivener in the accountant's cage in the outer office,
whose alcoholic career, his employer alleged, was
marked by a trail of empty rum kegs, each one
flying the white flag of surrender.
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, success-
ful, 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, inherit-
ance or environment. His weather-beaten con-
science was as elastic as his heart. Indeed when
under the expansive influence of a sufficient quan-
tity 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
13


Tutt and Mr. Tutt
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 dan-
gerous adversary and judges were afraid of him,
not because he ever tricked or deceived them but
because of the audacity and novelty of his argu-
ments, which left them speechless. He had the
assurance that usually comes with age and with a
lifelong knowledge of human nature, yet appar-
ently 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."
14


The Human Element
“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 in-
violate 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. "Hc
done it. He won't deny it.”
15


Tutt and Mr. Tutt
“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 con-
victed 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 I
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 Bab-
son 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
16


The Human Element
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 ineradic-
able prejudice against the entire Italian race and
this defendant in particular, and to an antipathy
against capital punishment which, so each unhesi-
tatingly averred, would render him utterly incap-
able 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 mil-
lions which required his instant and personal atten-
tion, whether in the last stages of illness or obli-
gated 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 triling preliminary having been concluded,
the few jurymen who had managed to wriggle
through the judicial sieve were allowed to with-
17


Tutt and Mr. Tutt
draw, the balance of the calendar was adjourned,
those spectators who were standing up were or-
dered 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 repor-
ters 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 ingrati-
ating 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 car-
ried 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 precon-
18


The Human Element
certed 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 them-
selves as disloyal citizens, oath violators and out-
casts; though the stenographic record of his re-
marks would have led the reader thereof to suppose
that this same judge was a conscientious, tender-
hearted, merciful lover of humanity, whose sensi-
tive soul quivered at the mere thought of a prison
cell, and who meticulously sought to surround the
defendant with every protection the law could
interpose against the imputation of guilt.
He was, as Tutt put it, “a dangerous old cuss.”
O'Brien was even worse. He was a bull-necked,
bullet-headed, pugnosed young ruffian with beery
eyes, who had an insatiable ambition and a still
greater conceit, but who had devised a blundering,
innocent, helpless way of conducting himself before
a jury that deceived them into believing that his
inexperience required their help and his disinter-
estedness their loyal support. Both of them were
apparently fair-minded, honest public servants;
19


Tutt and Mr. Tutt
both in reality were subtly disingenuous to a degree
beyond ordinary comprehension, for years
of
prac-
tise had made them sensitive to every whimsy of
emotion and taught them how to play upon
the psychology of the jury as the careless zephyr
softly draws its melody from the æolian harp. In
a word they were a precious pair of crooks, who
for their own petty selfish ends played fast and
loose with liberty, life and death.
Both of them hated Mr. Tutt, who had more
than once made them ridiculous before the jury
and shown them up before the Court of Appeals,
and the old lawyer recognized well the fact that
these two legal wolves were in revenge planning
to tear him and his helpless client to pieces, having
first deliberately selected him as a victim and as-
signed him to officiate at a ceremony which, how-
ever just so far as its consummation might be
concerned, was nothing less in its conduct than
judicial murder. Now they were laughing at him
in their sleeves, for Mr. Tutt enjoyed the reputa-
tion of never having defended a client who had
been convicted of murder, and that spotless
reputation was about to be annihilated forever.
Though the defense had thirty peremptory chal-
lenges Mr. Tutt well knew that Babson would
sustain the prosecutor's objections for bias until
the jury box would contain the twelve automata
20


The Human Element
personally selected by O'Brien in advance from
what Tutt called “the army of the gibbet.” Yet
the old war horse outwardly maintained a calm
and genial exterior, betraying none of the appre-
hension which in fact existed beneath his mask of
professional composure. The court officer rapped
sharply for silence.
"Are you quite ready to proceed with the case ?"
inquired the judge with a courtesy in which was
ill concealed a leer of triumph.
"Yes, Your Honor," responded Mr. Tutt in
velvet tones.
"Call the first talesman!"
The fight was on, the professional duel between
traditional enemies, in which the stake—a human
life was in truth the thing of least concern, had
begun. Yet no casual observer would have sus-
pected the actual significance of what was going
on or the part that envy, malice, uncharitableness,
greed, selfishness and ambition were playing in it.
He would have seen merely a partially filled court-
room flooded with sunshine from high windows, an
attentive and dignified judge in a black silk robe
sitting upon a dais below which a white-haired
clerk drew little slips of paper from a wheel and
summoned jurymen to a service which outwardly
bore no suggestion of a tragedy.
He would have seen a somewhat unprepossess-
21


Tutt and Mr. Tutt
ing assistant district attorney lounging in front of
the jury box, taking apparently no great interest in
the proceedings, and a worried-looking young
Ital-
ian sitting at the prisoner's table between a rubicund
little man with a round red face and a tall, grave,
longish-haired lawyer with a frame not unlike
that of Abraham Lincoln, over whose wrinkled
face played from time to time the suggestion of a
smile. Behind a balustrade were the reporters,
scribbling on rough sheets of yellow paper. Then
came rows of benches, upon the first of which, as
near the jury box as possible, sat Rosalina in a
new bombazine dress and wearing a large imitation
gold cross furnished for the occasion out of the
legal property room of Tutt & Tutt. Occasion-
ally she sobbed softly. The bulk of the spectators
consisted of rejected talesmen, witnesses, law clerks,
professional court loafers and women seeking emo-
tional sensations which they had not the courage or
the means to satisfy otherwise. The courtroom
was comparatively quiet, the silence broken only
by the droning voice of the clerk and the lazy inter-
play of question and answer between talesman and
lawyer.
Yet beneath the humdrum, casual, almost indif-
ferent manner in which the proceedings seemed to
be conducted each side was watching every move
made by the other with the tension of a tiger ready
22


The Human Element
to spring upon its prey. Babson and O'Brien were
engaged in forcing upon the defense a jury com-
posed entirely of case-hardened convictors, while
Tutt & Tutt were fighting desperately to secure one
so heterogeneous in character that they could hope
for a disagreement.
By recess thirty-seven talesmen had been exam-
ined without a foreman having been selected, and
Mr. Tutt had exhausted twenty-nine of his thirty
challenges, as against three for the prosecution.
The court reconvened and a new talesman was
called, resembling in appearance a professional
hangman who for relaxation leaned toward the
execution of Italians. Mr. Tutt examined him for
bias and every known form of incompetency, but
in vain—then challenged peremptorily. Thirty
challenges! He looked on Tutt with slightly raised
eyebrows.
“Patrick Henry Walsh–to the witness chair,
please, Mr. Walsh !" called the clerk, drawing
another slip from the box.
Mr. Walsh rose and came forward heavily,
while Tutt & Tutt trembled. He was the one man
they were afraid of—an old-timer celebrated as a
bulwark of the prosecution, who could always be
safely counted upon to uphold the arms of the
law, who regarded with reverence all officials con-
nected with the administration of justice, and from
23


Tutt and Mr. Tutt
whose composition all human emotions had been
carefully excluded by the Creator.
He was a
square-jawed, severe, heavily built person, with a
long relentless upper lip, cheeks ruddy from the
open air; engaged in the contracting business; and
he had a brogue that would have charmed a mavis
off a tree. Mr. Tutt looked hopelessly at Tutt.
Babson and O'Brien had won.
Once more Mr. Tutt struggled against his fate.
Was Mr. Walsh sure he had no prejudices against
Italians or foreigners generally? Quite. Did he
know anyone connected with the case ? No. Had
he
any
objection to the infliction of capital punish-
ment? None whatever. The defense had ex-
hausted all its challenges. Mr. Tutt turned to the
prospective foreman with an endearing smile.
“Mr. Walsh,” said he in caressing tones, "you
are precisely the type of man in whom I feel the
utmost confidence in submitting the fate of my
client. I believe that you will make an ideal fore-
man. I hardly need to ask you whether you will
accord the defendant the benefit of every reason-
able doubt, and if you have such a doubt will
acquit him.”
Mr. Walsh gazed suspiciously at Mr. Tutt.
“Sure,” he responded dryly, 'Oi'll give him the
benefit o' the doubt, but if Oi think he's guilty Oi'll
convict him."
-
24


The Human Element
Mr. Tutt shivered.
“Of course! Of course! That would be your
duty! You are entirely satisfactory, Mr. Walsh !"
“Mr. Walsh is more than satisfactory to the
prosecution !” intoned O'Brien.
"Be sworn, Mr. Walsh," directed the clerk; and
the filling of the jury box in the memorable case
of People versus Serafino was begun.
"That chap doesn't like us," whispered Mr.
Tutt to Tutt. "I laid it on a bit too thick."
In fact, Mr. Walsh had already entered upon
friendly relations with Mr. O'Brien, and as the
latter helped him arrange a place for his hat and
coat the foreman cast a look tinged with malevo-
lence at the defendant and his counsel, as if to
say “iou can't fool me. I know the kind of tricks
you
fellows are all
up
O'Brien could not repress a grin. The clerk
drew forth another name.
“Mr. Tompkins—will you take the chair?"
Swiftly the jury was impaneled. O'Brien chal-
lenged everybody who did not suit his fancy, while
Tutt & Tutt sat helpless.
Ten minutes and the clerk called the roll, begin-
ning with Mr. Walsh, and they were solemnly
sworn a true verdict to find, and settled themselves
to the task.
The mills of the gods had begun to grind, and
to."
25


Tutt and Mr. Tutt
Angelo was being dragged to his fate as inexorably
and as surely, with about as much chance of es-
cape, as a log that is being drawn slowly toward a
buzz saw.
"You may open the case, Mr. O'Brien," an-
nounced Judge Babson, leaning back and wiping
his glasses.
Then surreptitiously he began to read his mail
as his fellow conspirator undertook to tell the jury
what it was all about. One by one the witnesses
were called—the coroner's physician, the police-
man who had arrested Angelo outside the barber
shop with the smoking pistol in his hand, the assist-
ant barber who had seen the shooting, the customer
who was being shaved. Each drove a spike into
poor Angelo's legal coffin. Mr. Tutt could not
shake them. This evidence was plain. He had
come into the shop, accused Crocedoro of making
his wife's life unbearable and-shot him.
Yet Mr. Tutt did not lose any of his equanimity.
With the tips of his long fingers held lightly to-
gether in front of him, and swaying slightly back-
ward and forward upon the balls of his feet, he
smiled benignly down upon the customer and the
barber's assistant as if these witnesses were merely
unfortunate in not being able to disclose to the jury
all the facts. His manner indicated that a mysteri-
26


The Human Element
ous and untold tragedy lay behind what they had
heard, a tragedy pregnant with primordial vital
passions, involving the most sacred of human rela-
tionships, which when known would rouse the spirit
of chivalry of the entire panel.
On cross-examination the barber testified that
Angelo had said: "You maka small of my wife
long enough!”
“Ah!" murmured Mr. Tutt, waving an arm in
the direction of Rosalina. Did the witness recog-
nize the defendant's young wife? The jury showed
interest and examined the sobbing Rosalina with
approval. Yes, the witness recognized her. Did
the witness know to what incident or incidents the
defendant had referred by his remark—what the
deceased Crocedoro had done to Rosalina-if
any-
thing? No, the witness did not. Mr. Tutt looked
significantly at the row of faces in the jury box.
Then leaning forward he asked significantly:
"Did you see Crocedoro threaten the defendant
with his razor ?”
“I object !" shouted O'Brien, springing to his
feet. “The question is improper. There is no
suggestion that Crocedoro did anything. The
defendant can testify to that if he wants to!"
"Oh, let him answer!" drawled the judge.
"No" began the witness.
27


Tutt and Mr. Tutt
"Ah!" cried Mr. Tutt. “You did not see Croce-
doro threaten the defendant with his razor! That
will do!"
But forewarned by this trifling experience, Mr.
O'Brien induced the customer, the next witness, to
swear that Crocedoro had not in fact made any
move whatever with his razor toward Angelo, who
had deliberately raised his pistol and shot him.
Mr. Tutt rose to the cross-examination with the
same urbanity as before. Where was the witness
standing? The witness said he wasn't standing.
Well, where was he sitting, then? In the chair.
"Ah!” exclaimed Mr. Tutt triumphantly.
"Then you had your back to the shooting !"
In a moment O'Brien had the witness practically
rescued by the explanation that he had seen the
whole thing in the glass in front of him. The firm
of Tutt & Tutt uttered in chorus a groan of out-
raged incredulity. Several jurymen were seen to
wrinkle their foreheads in meditation. Mr. Tutt
had sown a tiny-infinitesimally tiny, to be sure-
seed of doubt, not as to the killing at all but as
to the complete veracity of the witness.
And then O'Brien made his coup.
"Rosalina Serafino_take the witness stand I"
he ordered.
He would get from her own lips the admission
that she bought the pistol and gave it to Angelo!
28


The Human Element
But with an outburst of indignation that would
have done credit to the elder Booth Mr. Tutt was
immediately on his feet protesting against the out-
rage, the barbarity, the heartlessness, the illegality
of making a wife testify against her husband! His
eyes flashed, his disordered locks waved in pic-
turesque synchronization with his impassioned ges-
tures. Rosalina, her beautiful golden cross rising
and falling hysterically upon her bosom, took her
seat in the witness chair like a frightened, furtive
creature of the woods, gazed for one brief instant
upon the twelve men in the jury box with those
great black eyes of hers, and then with burning
cheeks buried her face in her handkerchief.
“I protest against this piece of cruelty!" cried
Mr. Tutt in a voice vibrating with indignation.
“This is worthy of the Inquisition. Will not even
the cross upon her breast protect her from being
compelled to reveal those secrets that are sacred
to wife and motherhood? Can the law thus indi-
rectly tear the seal of confidence from the Confes-
sional? Mr. O'Brien, you go too far! There are
some things that even you—brilliant as you are-
may not trifle with."
A juryman nodded. The eleven others, being
more intelligent, failed to understand what he was
talking about.
“Mr. Tutt's objection is sound—if he wishes to
29


Tutt and Mr. Tutt
press it,” remarked the judge satirically. "You
may step down, madam. The law will not compel
a wife to testify against her husband. Have you
any more witnesses, Mister District Attorney?”
"The People rest,” said Mr. O'Brien. “The
case is with the defense."
Mr. Tutt rose with solemnity.
“The court will, I suppose, grant me a moment
or two to confer with my client?" he inquired.
Babson bowed and the jury saw the lawyer lean
across the defendant and engage his partner in
what seemed to be a weighty deliberation.
“I killa him! I say so!" muttered Angelo feebly
to Mr. Tutt.
"Shut up, you fool!” hissed Tutt, grabbing him
by the leg. “Keep still or I'll wring your neck."
“If I could reach that old crook up on the bench
I would twist his nose," remarked Mr. Tutt to
Tutt with an air of consulting him about the Year
Books. "And as for that criminal O'Brien, I'll get
him yet!"
With great dignity Mr. Tutt then rose and
again addressed the court:
“We have decided under all the circumstances of
this most extraordinary case, Your Honor, not to
put in any defense. I shall not call the
defendant-
.
30


The Human Element
“I killa him—" began Angelo, breaking loose
from Tutt and struggling to his feet. It was a hor-
rible movement. But Tutt clapped his hand over
Angelo's mouth and forced him back into his seat.
“The defense rests,” said Mr. Tutt, ignoring
the interruption. “So far as we are concerned the
case is closed.”
“Both sides rest!" snapped Babson. "How long
do you want to sum up?"
Mr. Tutt looked at the clock, which pointed to
three. The regular hour of adjournment was at
four. Delay was everything in a case like this. A
juryman might die suddenly overnight or fall griev-
ously ill; or some legal accident might occur which
would necessitate declaring a mistrial. There is
always hope in a criminal case so long as the ver-
dict has not actually been returned and the jury
polled and discharged. If possible he must drag
his summing up over until the following day.
Something might happen.
“About two hours, Your Honor,” he replied.
The jury stirred impatiently. It was clear that
they regarded a two-hour speech from him under
the circumstances as an imposition. But Babson
wished to preserve the fiction of impartiality.
"Very well,” said he. "You may sum up until
four-thirty, and have half an hour more to-morrow
31


Tutt and Mr. Tutt
morning. See that the doors are closed, Captain
Phelan. We do not want any interruption while
the summations are going on.”
"All out that's goin' out! Everybody out that's
got no business with the court!” bellowed Captain
Phelan.
Mr. Tutt with an ominous heightening of the
pulse realized that the real ordeal was at last at
hand, for the closing of the case had wrought in
the old lawyer an instant metamorphosis. With
the words “The defense rests” every suggestion of
the mountebank, the actor or the shyster had van-
ished. The awful responsibility under which he
labored; the overwhelming and damning evidence
against his client; the terrible consequences of the
least mistake that he might make; the fact that only
the sword of his ability, and his alone, stood be-
tween Angelo and a hideous death by fire in the
electric chair-sobered and chastened him. Had
he been a praying man in that moment he would
have prayed—but he was not.
For his client was foredoomed-foredoomed not
only by justice but also by trickery and guile-
and was being driven slowly but surely towards the
judicial shambles. For what had he succeeded in
adducing in his behalf? Nothing but the purely
apocryphal speculation that the dead barber might
have threatened Angelo with his razor and that
32


The Human Element
the witnesses might possibly have drawn somewhat
upon their imaginations in giving the details of
their testimony. A sorry defense! Indeed, no
defense at all. All the sorrier in that he had not
even been able to get before the jury the purely
sentimental excuses for the homicide, for he could
only do this by calling Rosalina to the stand, which
would have enabled the prosecution to cross-
examine her in regard to the purchase of the pistol
and the delivery of it to her husband—the strong-
est evidence of premeditation. Yet he must find
some argument, some plea, some thread of reason
upon which the jury might hang a disagreement
or a verdict in a lesser degree.
With a shuffling of feet the last of the crowd
pushed through the big oak doors and they were
closed and locked. An officer brought a corroded
tumbler of brackish water and placed it in front
of Mr. Tutt. The judge leaned forward with
malicious courtesy. The jury settled themselves
and turned toward the lawyer attentively yet defi-
antly, hardening their hearts already against his
expected appeals to sentiment. O'Brien, ostenta-
tiously producing a cigarette, lounged out through
the side door leading to the jury room and prison
cells. The clerk began copying his records. The
clock ticked loudly.
And Mr. Tutt rose and began going through the
33


Tutt and Mr. Tutt
empty formality of attempting to discuss the evi-
dence in such a way as to excuse or palliate Angelo's
crime. For Angelo's guilt of murder in the first
degree was so plain that it had never for one
moment been in the slightest doubt. Whatever
might be said for his act from the point of view
of human emotion only made his motive and re-
sponsibility under the statues all the clearer. There
was not even the unwritten law to appeal to. Yet
there was fundamentally a genuine defense, a de-
fense that could not be urged even by innuendo:
the defense that no accused ought to be convicted
upon any evidence whatever, no matter how con-
clusive, in a trial conducted with essential though
wholly concealed unfairness.
Such was the case of Angelo. No one could
demonstrate it, no one could with safety even hint
at it; any charge that the court was anything but
impartial would prove a boomerang to the defense;
and yet the facts remained that the whole proceed-
ing from start to finish had been conducted unfairly
and with illegality, that the jury had been duped
and deceived, and that the pretense that the guilty
Angelo had been given an impartial trial was a
farce. Every word of the court had been an accu-
sation, a sneer, an acceptance of the defendant's
guilt as a matter of course, an abuse far more sub-
versive of our theory of government than the mere
--
34


The Human Element
acquittal of a single criminal, for it struck at the
very foundations of that liberty which the fathers
had sought the shores of the unknown continent
to gain.
Unmistakably the proceedings had been con-
ducted throughout upon the theory that the defend-
ant must prove his innocence and that presumably
he was a guilty man; and this as well as his own
impression that the evidence was conclusive the
judge had subtly conveyed to the jury in his tone
of speaking, his ironical manner and his facial
expression. Guilty or not Angelo was being rail-
roaded. That was the real defense—the defense
that could never be established even in any higher
court, except perhaps in the highest court of all,
which is not of earth.
And so Mr. Tutt, boiling with suppressed indig-
nation, weighed down with the sense of his respon-
sibilty, fully realizing his inability to say anything
based on the evidence in behalf of his client, feeling
twenty years older than he had during the verbal
duel of the actual cross-examination, rose with a
genial smile
upon his puckered old face and with
a careless air almost of gaiety, which seemed to
indicate the utmost confidence and determination,
and with a graceful compliment to his arch enemy
upon the bench and the yellow dog who had hunted
with him, assured the jury that the defendant had
35


Tutt and Mr. Tutt
had the fairest of fair trials and that he, Mr.
Tutt, would now proceed to demonstrate to their
satisfaction his client's entire innocence; nay, would
show them that he was a man not only guiltless
of any wrong-doing but worthy of their hearty
commendation.
With jokes not too unseemly for the occasion
he overcame their preliminary distrust and put
them in a good humor. He gave a historical dis-
sertation upon the law governing homicide, on the
constitutional rights of American citizens, on the
laws of naturalization, marriage, and the domestic
relations; waxed eloquent over Italy and the Ital-
ian character, mentioned Cavour, Garibaldi and
Mazzini in a way to imply that Angelo was their
lineal descendant; and quoted from D'Annunzio
back to Horace, Cicero and Plautus.
“Bunk! Nothing but bunk!” muttered Tutt,
studying the twelve faces before him. “And they
all know it?"
But Mr. Tutt was nothing if not interesting.
These prosaic citizens of New York County, these
saloon and hotel keepers, these contractors, insur-
ance agents and salesmen were learning something
of history, of philosophy, of art and beauty. They
liked it. They felt they were hearing something
worth while, as indeed they were, and they forgot
all about Angelo and the unfortunate Crocedoro in
36


The Human Element
their admiration for Mr. Tutt, who had lifted
them out of the dingy sordid courtroom into the
sunlight of the Golden Age. And as he led them
through Greek and Roman literature, through the
early English poets, through Shakespeare and the
King James version, down to John Galsworthy and
Rupert Brooke, he brought something that was
noble, fine and sweet into their grubby materialistic
lives; and at the same time the hand of the clock
crept steadily on until he and it reached Château-
Thierry and half past four together.
"Bang !" went Babson's gavel just as Mr. Tutt
was leading Mr. Walsh, Mr. Tompkins and the
others through the winding paths of the Argonne
forests with tin helmets on their heads in the
struggle for liberty.
conclude
your
address in the morn-
ing, Mr. Tutt,” said the judge with supreme
unction. "Adjourn court!"
“You may
Gray depression weighed down Mr. Tutt's soul
as he trudged homeward. He had made a good
speech, but it had had absolutely nothing to do
with the case, which the jury would perceive as
soon as they thought it over. It was a confession
of defeat. Angelo would be convicted of murder
in the first degree and electrocuted, Rosalina would
be a widow, and somehow he would be in a meas-
37


Tutt and Mr. Tutt
ure responsible for it. The tragedy of human
life appalled him. He felt very old, as old as
the dead-and-gone authors from whom he had
quoted with such remarkable facility. He belonged
with them; he was too old to practise his profession.
"Law, Mis' Tutt,” expostulated Miranda, his
ancient negro handmaiden, as he pushed away the
chop and mashed potato, and even his glass of
claret, untasted, in his old-fashioned dining room
on West Twenty-third Street, “you ain't got no
appetite at all! You's sick, Mis' Tutt."
“No, no, Miranda !” he replied weakly. "I'm
just getting old."
"You's mighty spry for an old man yit,” she
protested. “You kin make dem lawyer men hop
mighty high when you tries. Heh, heh! I reckon
dey ain't got nuffin' on my Mistah Tutt!"
Upstairs in his library Mr. Tutt strode up and
down before the empty grate, smoking stogy after
stogy, trying to collect his thoughts and devise
something to say upon the morrow, but all his
ideas had flown. There wasn't anything to say.
Yet he swore Angelo should not be offered up as a
victim upon the altar of unscrupulous ambition.
The hours passed and the old banjo clock above
the mantel wheezed eleven, twelve; then one, two.
Still he paced up and down, up and down in a sort
of trance. The air of the library, blue with the
38


The Human Element
smoke of countless stogies, stifled and suffocated
him. Moreover he discovered that he was hungry.
He descended to the pantry and salvaged a piece
of pie, then unchained the front door and stepped
forth into the soft October night.
A full moon hung over the deserted streets of
the sleeping city. In divers places, widely scat-
tered, the twelve good and true men were snoring
snugly in bed. Tomorrow they would send Angelo
to his death without a quiver. He shuddered,
striding on, he knew not whither, into the night.
His brain no longer worked. He had become a
peripatetic automaton self-dedicated to nocturnal
perambulation.
With his pockets bulging with stogies and one
glowing like a headlight in advance of him he
wandered in a sort of coma up Tenth Avenue,
crossed to the Riverside Drive, mounted Morning-
side Heights, descended again through the rustling
alleys of Central Park, and found himself at Fifth
Avenue and Fifty-ninth Street just as the dawn
was paling the electric lamps to a sickly yellow and
the trees were casting strange unwonted shadows
in the wrong direction. He was utterly exhausted.
He looked eagerly for some place to sit down, but
the doors of the hotels were dark and tightly closed
and it was too cold to remain without moving in
the open air.
39


The Human Element
ing somewhere, and there was a great noise of
footsteps. Then a bell twinkled and he raised his
head and saw that the chancel was full of lights
and white-robed priests. It was broad daylight.
Horrified he looked at his watch, to find that it
was ten minutes after ten. His joints creaked as
he pulled himself to his feet and his eyes were half
closed as he staggered down the steps and hailed a
taxi.
“Criminal Courts Building—side door. And
drive like hell!” he muttered to the driver.
He reached it just as Judge Babson and his
attendant were coming into the courtroom and the
crowd were making obeisance. Everybody else
was in his proper place.
"You may proceed, Mr. Tutt," said the judge
after the roll of the jury had been called.
But Mr. Tutt was in a daze, in no condition to
think or speak. There was a curious rustling in his
ears and his sight was somewhat blurred. The
atmosphere of the courtroom seemed to him cold
and hostile; the jury sat with averted faces. He
rose feebly and cleared his throat.
“Gentlemen of the jury,” he begar, "I-I think
I covered everything I had to say yesterday after-
I can only beseech you to realize the full
extent of your great responsibility and remind you
noon.
41


Tutt and Mr. Tutt
that if you entertain a reasonable doubt upon the
evidence you are sworn to give the benefit of it to
the defendant."
He sank back in his chair and covered his eyes
with his hands, while a murmur ran along the
benches of the courtroom. The old man had col-
lapsed—tough luck—the defendant was cooked!
Swiftly O'Brien leaped to his feet. There had
been no defense. The case was as plain as a pike-
staff. There was only one thing for the jury to do
-return a verdict of murder in the first. It would
not be pleasant, but that made no difference! He
read them the statute, applied it to the facts, and
shoole his fist in their faces. They must convicta
and convict of only one thing—and nothing else
murder in the first degree. They gazed at him like
silly sheep, nodding their heads, doing everything
but bleat.
Then Babson cleared his decks and rising in dig-
nity expounded the law to the sheep in a rich mel-
low voice, in which he impressed upon them the
necessity of preserving the integrity of the jury
system and the sanctity of human life. He pro-
nounced an obituary of great beauty upon the de-
ceased barber—who could not, as he pointed out,
speak for himself, owing to the fact that he was
in his grave. He venomously excoriated the de-
fendant, who had deliberately planned to kill an
42


The Human Element
unarmed man peacefully conducting himself in his
place of business, and expressed the utmost confi-
dence that he could rely upon the jury, whose char-
acter he well knew, to perform their full duty no
matter how disagreeable that duty might be. The
sheep nodded.
“You may retire, gentlemen."
Babson looked down at Mr. Tutt with a signi-
ficant gleam in his eye. He had driven in the knife
to the hilt and twisted it round and round. Angelo
had almost as much chance as the proverbial cellu-
loid cat. Mr. Tutt felt actually sick. He did not
look at the jury as they went out. They would not
be long—and he could hardly face the thought of
their return. Never in his long experience had he
found himself in such a desperate situation. Here-
tofore there had always been some argument, some
construction of the facts upon which he could make
an appeal, however fallacious or illogical.
He leaned back and closed his eyes. The judge
was chatting with O'Brien, the court officers were
betting with the reporters as to the length of time
in which it would take the twelve to agree upon a
verdict of murder in the first. The funeral rites
were all concluded except for the final commitment
of the corpse to mother earth.
And then without warning Angelo suddenly
rose and addressed the court in a defiant shrick.
43


Tutt and Mr. Tutt
"I killa that man!” he cried wildly. "He maka
small of my wife! He no good! He bad egg!
I killa him once-I killa him again!"
“So!" exclaimed Babson with biting sarcasm.
"You want to make a confession? You hope for
mercy, do you? Well, Mr. Tutt, what do you
wish to do under the circumstances ? Shall I recall
the jury and reopen the case by consent ?"
Mr. Tutt rose trembling to his feet.
“The case is closed, Your Honor," he replied.
"I will consent to a mistrial and offer a plea of
guilty of manslaughter. I cannot agree to reopen
the case. I cannot let the defendant go upon the
stand."
The spectators and reporters were pressing for-
ward to the bar, anxious lest they should lose a
single word of the colloquy. Angelo remained
standing, looking eagerly at O'Brien, who returned
his
gaze with a grin like that of a hyena.
“I killa him !" Angelo repeated. "You killa me
if you want."
“Sit down!" thundered the judge. “Enough of
this! The law does not permit me to accept a
plea to murder in the first degree, and my con-
science and my sense of duty to the public will per-
mit me to accept no other. I will go to my cham-
bers to await the verdict of the jury. Take the
prisoner downstairs to the prison pen."
44


Tutt and Mr. Tutt
studying their faces. Yes, he told himself, they
were a regular set of hangmen—he couldn't have
picked a tougher bunch if he'd had his choice of
the whole panel.
The clerk called the roll, and Messrs. Walsh,
Tompkins, et al., stated that they were all present.
“Gentlemen of the jury, have you agreed upon
a verdict ?" inquired the clerk.
“We have!” replied Mr. Walsh sternly.
"How say you? Do you find the defendant
guilty or not guilty ?”
Mr. Tutt gripped the balustrade in front of
him with one hand and put his other arm round
Angelo. He felt that now in truth murder was
being done.
“We find the defendant not guilty," said Mr.
Walsh defiantly.
There was a momentary silence of incredulity.
Then Babson and O'Brien shouted simultaneously:
“What!”
“We find the defendant not guilty," repeated
Mr. Walsh stubbornly.
“I demand that the jury be polled I” cried the
crestfallen O'Brien, his face crimson.
And then the twelve reiterated severally that
that was their verdict and that they hearkened
unto it as it stood recorded and that they were
entirely satisfied with it.
46


The Human Element
"You are discharged!” said Babson in icy tones.
“Strike the names of these men from the list of
jurors—as incompetent. Haven't you any other
charge on which you can try this defendant?”'
“No, Your Honor," answered O'Brien grimly.
"He didn't take the stand, so we can't try him
for per jury; and there isn't any other indictment
against him.”
Judge Babson turned ferociously upon Mr.
Tutt:
“This acquittal is a blot upon the administration
of criminal justice; a disgrace to the city! It is an
unconscionable verdict; a reflection upon the intel-
ligence of the jury! The defendant is discharged.
This court is adjourned.”
The crowd surged round Angelo and bore him
away, bewildered. The judge and prosecutor hur-
ried from the room. Alone Mr. Tutt stood at
the bar, trying to grasp the full meaning of what
had occurred.
He no longer felt tired; he experienced an exul-
tation such as he had never known before. Some
miracle had happened! What was it?
Unexpectedly the lawyer felt a rough warm hand
clasped over his own upon the rail and heard the
voice of Mr. Walsh with its rich brogue saying:
“At first we couldn't see that there was much to
be said for your side of the case, Mr. Tutt; but
49


Tutt and Mr. Tutt
when Oi stepped into the cathedral on me way
down to court this morning and spied you prayin'
there for guidance I knew you wouldn't be defend-
in' him unless he was innocent, and so we decided
to give him the benefit of the doubt."
48


Mock Hen and Mock Turtle
"Oh, East is East and West is West, and never the
twain shall meet."
-BALLAD OF EAST AND WEST.
"But the law of the jungle is jungle law only, and the
law of of the pack is only for the pack.”
-OTHER SAYINGS OF SHERE KHAN.
A
HALF turn from the clattering hubbub of
Chatham Square and you are in Chinatown,
slipping, within ten feet, through an invisible wall,
from the glitter of the gin palace and the pawn-
shop to the sinister shadows of irregular streets
and blind alleys, where yellow men pad swiftly
along greasy asphalt beneath windows glinting with
ivory, bronze and lacquer ; through which float the
scents of aloes and of incense and all the subtle
suggestion of the East.
No one better than the Chink himself realizes
the commercial value of the taboo, the bizarre and
49


Tutt and Mr. Tutt
the unclean. Nightly the rubber-neck car swing-
ing gayly with lanterns stops before the imitation
joss house, the spurious opium joint and tortuous
passage to the fake fan-tan and faro game, with a
farewell call at Hong Joy Fah's Oriental restaur-
ant and the well-stocked novelty store of Wing,
Hen & Co. The visitors see what they expect to
see, for the Chinaman always gives his public
exactly what it wants.
But a dollar does not show you Chinatown. To
some the ivories will always be but crudely carven
bone, the jades the potter's sham, the musk and
aloes the product of a soap factory, the joss but
a cigar-store Indian, and the Oriental dainties of
Hong Fah the scrappings of a Yankee grocery
store. Yet behind the shoddy tinsel of Doyers and
Pell Streets, as behind Alice's looking-glass, there
is another Chinatown—a strange, inhuman, Orien-
tal world, not necessarily of trapdoors and stifled
screams, but one moved by influences undreamed
of in our banal philosophies. Hearken then to the
story of the avenging of Wah Sing.
'Tis a tale was undoubtedly true
In the reign of the Emperor Hwang,
In the murky cellar of a Pell Street tenement
seventeen Chinamen sat cross-legged in a circle
round an octagonal teakwood table. To an Occi-
dental they would have appeared to differ in no
50


Mock Hen and Mock Turtle
detail except that of a varying degree of fatness.
An oil lamp Aickered before a joss near by, and
the place reeked with the odor of starch, sweat,
tobacco, rice whisky and the incense that rose ceil-
ingward in thin, shaking columns from two bowls
of Tibetan soapstone. An obese Chinaman with
a walnutlike countenance in which cunning and mel-
ancholy. were equally commingled was speaking
monotonously through long, rat-tailed mustaches,
while the others listened with impassive decorum.
It was a special meeting of the Hip Leong Tong,
held in their private clubrooms at the Great Shang-
hai Tea Company, and conducted according to
rule.
“Therefore,” said Wong Get, "as a matter of
honor it is necessary that our brother be avenged
and that no chances be taken. A much too long
time has already elapsed. I have written the letter
and will read it."
He fumbled in his sleeve.and drew forth a roll
of brown paper covered with heavy Chinese char-
acters, unwinding it from a strip of bamboo.
To the Honorable Members of the On Gee Tong:
Whereas it has pleased you to take the life of our beloved
friend and relative Wah Sing, it is with greatest courtesy
and the utmost regret that we inform you that it is
necessary for us likewise to remove one of your esteemed
society, and that we shall proceed thereto without delay.
51


Tutt and Mr. Tutt
Due warning being thus honorably given I subscribe
imyself with profound appreciation,
For the Hip Leong Tong,
WONG GET.
He ceased reading and there was a perfunctory
grunt of approval from round the circle. Then
he turned to the official soothsayer and directed
him to ascertain whether the time were propitious.
The latter tossed into the air a handful of painted
ivory sticks, carefully studied their arrangement
when fallen, and nodded gravely.
"The omens are favorable, O honorable one!"
“Then there is nothing left but the choice of our
representatives,” continued Wong Get. “Pass the
fateful box, O Fong Hen.”
Fong Hen, a slender young Chinaman, the offi-
cial slipper, or messenger, of the society, rose and,
lifting a lacquered gold box from the table, passed
it solemnly to each member.'
“This time there will be four," said Wong Get.
Each in turn averted his eyes and removed from
the box a small sliver of ivory. At the conclusion
of the ceremony the four who had drawn red tokens
rose. Wong Get addressed them.
“Mock Hen, Mock Ding, Long Get, Sui Sing-
to you it is confided to avenge the murder of our
brother Wah Sing. Fail not in your purpose !"
52


Mock Hen and Mock Turtle
And the four answered unemotionally: "Those
to whom it is confided will not fail."
Then pivoting silently upon their heels they
passed out of the cellar.
Wong Get glanced round the table.
"If there is no further business the society will
disperse after the customary refreshment."
Fong Hen placed thirteen tiny glasses upon the
table and filled them with rice whisky scented with
aniseed and a dash of powdered ginger. At a sig-
nal from Wong Get the thirteen Chinamen lifted
the glasses and drank.
"The meeting is adjourned,” said he.
Eighty years before, in a Cantonese rabbit war-
ren, two yellow men had fought over a white
woman, and one had killed the other. They had
belonged to different societies, or tongs. The asso-
ciates of the murdered man had avenged his death
by slitting the throat of one of the members of
the other organization, and these in turn had retali-
ated, thus establishing a vendetta which became
part and parcel of the lives of certain families, as
naturally and unavoidably as birth, love and death.
As regularly as the solstice they alternated in pick-
ing each other off. Branches of the Hip Leong
and On Gee tongs sprang up in San Francisco and
New York—and the feud was transferred with
53


Tutt and Mr. Tutt
He was
them to Chatham Square, a feud imposing a sacred
obligation rooted in blood, honor and religion upon
every member, who rather than fail to carry it out
would have knotted a yellow silken cord under his
left ear and
swung himself gently off a table into
eternal sleep.
Young Mock Hen, one of the four avengers,
had created a distinct place for himself in China-
town by making a careful study of New York
psychology.
a good-looking Chink,
smooth-faced, tall and supple; he knew very well
how to capitalize his attractiveness. By day he
attended Columbia University as a special student
in applied electricity, keeping a convenient eye
meanwhile on three coolies whom he employed to
run The College Laundry on Morningside
Heights. By night he vicariously operated a chop-
suey palace on Seventh Avenue, where congregated
the worst elements of the Tenderloin. But his
heart was in the gambling den which he main-
tained in Doyers Street, and where anyone who
knew the knock could have a shell of hop for the
asking, once Mock had given him the once-over
through the little sliding panel.
Mock was a Christian Chinaman. That is to
say, purely for business reasons—for what he got
out of it and the standing that it gave him—he
attended the Rising Star Mission and also fre-
54


Mock Hen and Mock Turtle
quented Hudson House, the social settlement where
Miss Fanny Duryea taught him to play ping-pong
and other exciting parlor games, and read to him
from books adapted to an American child of ten.
He was a great favorite at both places, for he was
sweet-tempered and wore an expression of heaven-
born innocence. He had even been to church with
Miss Duryea, temporarily absenting himself for
that purpose of a Sunday morning from the steam-
heated flat where-unknown to her, of course-
he lived with his white wife, Emma Pratt, a lady
of highly miscellaneous antecedents.
Except when engaged in transacting legal or
other business with the municipal, sociologic or
religious world—at which times his vocabulary con-
sisted only of the most rudimentary pidgin-Mock
spoke a fluent and even vernacular English learned
at night school. Incidentally he was the head of
the syndicate which controlled and dispensed the
loo, faro, fan-tan and other gambling privileges
of Chinatown.
Detective Mooney, of the Second, detailed to
make good District Attorney Peckham's boast that
there had never been so little trouble with the
foreign element since the administration-of which
he was an ornament-came into office, saw Quong
Lee emerge from his doorway in Doyers Street
55


Tutt and Mr. Tutt
just before four o'clock the following Thursday
and slip silently along under the shadow of the
eaves toward Ah Fong's grocery—and instantly
sensed something peculiar in the Chink's walk.
"Hello, Quong!” he called, interposing himself.
"Where you goin'?"
Quong paused with a deprecating gesture of
widely spread open palms.
“ 'Lo yourself!" replied blandly. “Me go buy
li'l' glocery."
Mooney ran his hands over the rotund body,
frisking him for a possible forty-four.
“For the love of Mike !" he exclaimed, tearing
open Quong's blouse. "What sort of an under-
shirt is that?"
Quong grinned broadly as the detective lifted
the suit of double-chain mail which swayed heavily
under his blue blouse from his shoulders to his
knees.
“So-ho!" continued the plain-clothes
"Trouble brewin', eh?"
He knew already that something was doing in
the tongs from his lobby-gow, Wing Foo.
"Must weigh eighty pounds !" he whistled. "I'd
like to see the pill that would go through that!”
It was, in fact, a medieval corselet of finest steel
mesh, capable of turning an elephant bullet.
“Go'long!” ordered Mooney finally. "I guess
you're safe!"
man.
i i ii
56


Mock Hen and Mock Turtle
He turned back in the direction of Chatham
Square, while Quong resumed his tortoiselike per-
ambulation toward Ah Fong's. Pell and Doyers
Streets were deserted save for an Italian woman
carrying a baby, and were pervaded by an unnatural
and suspicious silence. Most of the shutters on
the lower windows were down. Ah Fong's subse-
quent story of what happened was simple, and
briefly to the effect that Quong, having entered his
shop and priced various litchi nuts and pickled
starfruit, had purchased some powdered lizard
and, with the package in his left hand, had opened
the door to go out. As he stood there with his right
hand upon the knob and facing the afternoon sun
four shadows fell aslant the window and a man
whom he positively identified as Sui Sing emptied
a bag of powder-afterward proved to be red pep-
per—upon Quong's face; then another, Long Get,
made a thrust at him with a knife, the effect of
which he did not observe, as almost at the same
instant Mock Hen felled him with a blow upon the
head with an iron bar, while a fourth, Mock Ding,
fired four shots at his crumpling body with a revol-
ver, one of which glanced off and fractured a very
costly Chien Lung vase and ruined four boxes of
mandarin-blossom tea. In his excitement he
ducked behind the counter, and when sufficiently
revived he crawled forth to find what had once
been Quong lying across the threshold, the mur-
57


Mock Hen and Mock Turtle
“God!" ejaculated Mollie. “Sure as shootin',
that's Mock Hen—and he's murdered somebody!"
"It's Mock all right!" agreed Bull Neck. “That
puts us in as witnesses or strike me!" And he
looked at his watch-four one.
“Here, Burke, put your shoulder to this !"
shouted Mooney from the cellar steps. “Now
then!”
The two of them threw their combined weight
against it, the lock flew open and they fell forward
into the darkness. Three doors leading in differ-
ent directions met the glare of Mooney's match.
But the fugitive had a start of at least four minutes,
which was three and a half more than he required.
Mock Hen took the left-hand of the three doors
and crept along a passage opening into an empty
opium parlor back of the Hip Leong clubroom.
Diving beneath one of the bunks he inserted his
body between the lower planking at the back and
the cellar wall, wormed his way some twelve feet,
raised a trap and emerged into a tunnel by means
of which and others he eventually reached the end
of the block and the rooms of his friend Hong Sue.
Here he changed from the Oriental costume
according to Chinese etiquette necessary to the
homicide, into a nobby suit of American clothes,
put on a false mustache, and walked boldly down
59


Tutt and Mr. Tutt
Park Row, while just behind him Doyers and Pell
Streets swarmed with bluecoats and excited
citizenry.
Hudson House, the social settlement presided
over by Miss Fanny and affected for business rea-
sons by Mock Hen, was a mile and a half away.
But Mock took his time. Twenty-five full min-
utes elapsed before he leisurely climbed the steps
and slipped into the big reading room. There was
no one there and Mock deftly turned back the hand
of the automatic clock over the platform to three-
fifty-five. Then he began to whistle. Presently
Miss Fanny entered from the rear room, her face
lighting with pleasure at the sight of her pet
convert.
"Good afternoon, Mock Hen! You are early
to-day.
Mock took her hand and stroked it affectionately.
"I go Fulton Mark' buy li'l terrapin. Stop in
on way to see dear Miss Fan'."
They stood thus for a moment, and while they
did so the clock struck four.
"I go now!' said Mock suddenly. "Four o'clock
already."
“It's early," answered Miss Fanny. “Won't
you stay a little while ?”
“I
go now," he repeated with resolution. “Good-
by, li'l teacher !"
60


Mock Hen and Mock Turtle
She watched until his lithe figure passed through
the door, and presently returned to the back room.
Mock waited outside until she had disappeared.
Then he changed back the clock.
"We've got you, you blarsted heathen !” cried
Mooney hoarsely as he and two others from the
Central Office threw themselves upon Mock Hen
on the landing outside the door of his flat. “Look
out, Murtha. Pipe that thing under his arm !”
"It's a bloody turtle !” gasped Murtha, shud-
dering.
“What's the matter, boys ?” inquired Mock.
“Leggo my arm, can't yer? What'd yer want,
anyway?"
“We want you, you yellow skunk !" retorted
Mooney. “Open that door! Lively now !"
"Sure!" answered Mock amiably. "Come on
in! What's bitin' yer ?”
He unlocked the door and threw it open.
"Take a chair," he invited them.
“Have a
cigar? You there, Emma ?"
Emma Pratt, clad in a wrapper and lying on
the big double brass bedstead in the rear room,
raised herself on one elbow.
"Yep!" she called through the passage. "Goť
the bird?"
Mock looked at Murtha, who was carrying the
terrapin.
61


Mock Hen and Mock Turtle
who held him in high esteem, for they had always
found him loyal to their interests and as much a
stickler for honor as themselves. Moreover, be-
tween him and Wong Get there existed a curious
sympathy as if in some previous state of existence
Wong Get might have been Mr. Tutt, and Mr.
Tutt Wong Get. Perhaps, however, it was merely
because both were rather weary, sad and worldly
wise.
Wong Get did not come alone. He was accom-
panied by two other Hip Leongs, the three form-
ing the law committee appointed to retain the best
available counsel to defend Mock Hen. In his
expansive frock coat and bowler hat Wong might
easily have excited mirth had it not been for the
extreme dignity of his demeanor. They were there,
he stated, to request Mr. Tutt to protect the inter-
ests of Mock Hen, and they were prepared to pay
a cash retainer and sign a written contract bind-
ing themselves to a balance—so much if Mock
should be convicted; so much if acquitted; so much
if he should die in the course of the trial without
having been either convicted or acquitted. It was,
said Wong Get gently, a matter of grave impor-
tance and they would be glad to give Mr. Tutt
time to think it over and decide upon his terms.
Suppose, then, that they should return at noon?
With this understanding, accordingly, they
departed.
63


Tutt and Mr. Tutt
"There's no point in skinning a Chink just be
cause he is a Chink,” said the junior Tutt when his
partner had explained the situation to him. “But
it isn't the highest-class practise and they ought to
pay well.”
“What do you call well?" inquired Mr. Tutt.
"Oh, a thousand dollars down, a couple more
if he's convicted, and five altogether if he's
acquitted.”
"Do you think they can raise that amount of
money?”
"I think so," answered Tutt. "It might be a
good deal for an individual Chink to cough up on
his own account, but this is a coöperative affair.
Mock Hen didn't kill Quong Lee to get anything
out of it for himself, but to save the face of his
society."
"He didn't kill him at all!” declared Mr. Tutt,
hardly moving a muscle of his face.
"Well, you know what I mean!" said Tutt.
"He wasn't there,” insisted Mr. Tutt. "He
was way over in Fulton Market buying a
terrapin.'
“That is what, if I were district attorney, I
should call a Mock Hen with a mockturtle de-
fense !" grunted Tutt.
Mr. Tutt chuckled.
"I shall have to get that off myself at the begin-
ning of the case, or it might convict him," he
64


Mock Hen and Mock Turtle
remarked. “But he wasn't there—unless the jury
find that he was.”
"In which case he will or shall have been
there—whatever the verb is," agreed Tutt. “Any-
how they'll tax every laundry and chop-suey palace
from the Bronx to the Battery to pay us.
“I'd hate to take our fee in bird's-nest soup,
shark's fin, bamboo-shoots salad and ya ko main,"
mused Mr. Tutt.
“Or in ivory chopsticks, oolong tea, imitation
jade, litchi nuts and preserved leeches !" groaned
Tutt. "Be sure and get the thousand down; it
may be all the cash we'll ever see !"
Promptly at twelve the law committe of the Hip
Leong Tong returned to the office of Tutt & Tutt.
With them came a venerable Chinaman in native
costume, his wrinkled face as inscrutable as that
of a snapping turtle. The others took chairs, but
this high dignitary preferred to sit upon his heels
on the floor, creating something of the impression
of an ancient slant-eyed Buddha.
Wong Get translated for his benefit the arrange-
ment proposed by Mr. Tutt, after which there was
a long pause while His Eminence remained immov-
able, without even the flicker of an eyelid. Then
he delivered himself in an interminable series of
gargles and gurgles, supplemented by a few cough-
like hisses, while Wong Get translated with rapid
65


Tutt and Mr. Tutt
dexterity, running verbally in and out among his
words like a carriage dog between the wheels of a
vehicle.
It was, declared Buddha, an affair of great
moment touching upon and appertaining to the
private honor of the Duck, the Wong, the Fong,
the Long, the Sui and various other families, both
in America and China. The life of one of their
members was at stake. Their face required that
the proceedings should be as dignified as possible.
The price named by Mr. Tutt was quite inadequate.
Mr. Tutt, repressing a smile, passed a box of
stogies. What amount, he inquired through Wong
Get, would satisfy the face of the Duck family?
A somewhat lengthy discussion ensued. Then
Buddha rendered his decision.
The honor of the Ducks, Longs and Fongs
would not be satisfied unless Mr. Tutt received
five thousand dollars down, five more if Mock Hen
was convicted, three more if he died before the
conclusion of the trial, and twenty thousand if he
was acquitted.
Mr. Tutt, assuming an equal impassivity, pon-
dered upon the matter for about an inch of stogy
and then informed the committee that the terms
were eminently satisfactory. Buddha thereupon
removed from the folds of his tunic a gigantic roll
of soiled bills of all denominations and carefully
66


Mock Hen and Mock Turtle
counting out five thousand dollars placed it upon
the table.
“H'm!” remarked Tutt when he learned of the
proceeding. "His face is our fortune !"
"Look here,” expostulated District Attorney
Peckham in his office to Mr. Tutt a month later.
“What's the use of our both wasting a couple of
weeks trying a Chinaman who is bound to be con-
victed? Your time's too valuable for that sort of
thing, and so is mine. We've got three white wit-
nesses that saw him do it, and a couple of dozen
Chinks besides. He doesn't stand a chance; but
just because he is a Chink, and to get the case out
of the way, I'll let you plead him to murder in
the second degree. What do you say?"
He tried to conceal his anxiety by nervously
lighting a cigar. He would have given a year's
salary to have Mock Hen safely up the river, even
on a conviction for manslaughter in the third, for
the newspapers were making his life a burden with
their constant references to the seeming inability
of the police department and district attorney's
office to prevent the recurrence of feud killings in
the Chinatown districts. What use was it, they
demanded, to maintain the expensive machinery of
criminal justice if the tongs went gayly on shooting
each other up and incidentally taking the lives of
67


Tutt and Mr. Tutt
The entire hallway on two sides of the building
was lined with Chinamen! They sat there motion-
less as blue-coated images, faces front, their hands
in their laps, their legs crossed beneath them. If
anyone appeared in the offing a couple of hundred
pairs of glinting eyes shifted automatically and
followed him until he disappeared, but otherwise
no muscle quivered.
“Say,” growled Hogan, Judge Bender's private
attendant, who was the first to run the gantlet,
“those Chinks are enough to give you the Willies !
Their eyes scared me to death, sticking me through
the back!”
Even dignified Judge Bender himself as he
stalked along the hall, preceded by two police offi-
cers, was not immune from a slight feeling of
uncanniness, and he instinctively drew his robe
round his legs that it might not come into contact
with those curious slippers with felt soles that pro-
truded across the marble slabs.
“Eyes right!” They had picked him up the
instant he stepped out of the private elevator-
the four hundred of them. If he turned and looked
they were seemingly not watching him, but if he
dropped his glance they swung back in a single
moment and focused themselves
upon
him. And
every one of them probably had a gun hidden some-
where in his baggy pants! The judge confessed
to not liking these foreign homicide cases. You
70


Mock Hen and Mock Turtle
never could tell what might happen or when some-
body was going to get the death sign. There was
Judge Deasy—he had the whole front of his house
blown clean out by a bomb! That had been a
close call! And these Chinks—with their secret
oaths and rituals—they'd think nothing at all of
jabbing a knife into you. He didn't fancy it at
all and, as he hurried along, supremely conscious
of the deadly cumulative effect of those beady eyes,
he fancied it less and less. What was there to
prevent one of them from getting right up in court
and putting a bullet through you? He shivered,
recalling the recent assassination of a judge upon
the bench by a Hindu whom he had sentenced.
When he reached his robing room he sent for
Captain Phelan.
“See here, captain," he directed sharply, “I
want you to keep all those Chinamen out in the
corridor; understand?"
“I've got to let some of 'em in, judge," urged
Phelan. "You've got to have an interpreter-and
there's a Chinese lawyer associated with Tutt &
Tutt-and of course Mr. O'Brien has to have a
couple of 'em so's he'll know what's going on. Y'
see, judge, the On Gee Tong is helping the prose
cution against the Hip Leongs, so both sides has
to be more or less represented.
"Well, make sure none of 'em is armed,"
71


Tutt and Mr. Tutt
--the
ordered Judge Bender. "I don't like these cases."
Now the judge, being recently elected and un-
familiar with the situation, did not realize that
nothing could have been farther from the Oriental
mind or intention than an attack upon the officers
engaged in the administration of local justice,
whom they regarded merely as nuisances. What
these Chinamen supremely desired was to be
allowed to settle their own affairs in their own
historic and traditional
way way
of the revol.
ver, the silken cord, the knife and the iron bar.
Once enmeshed in Anglo-Saxon juridical procedure,
to be sure, they were not averse to letting it run
its course on the bare chance that it might auto-
matically accomplish their revenge. But they dis-
trusted it, being brought up according to a much
more effective system-one which when it wanted
to punish anybody simply reached out, grabbed
him by the pigtail, yanked him to his knees and
sliced off his head. This so-called American jus-
tice was all talk-words, words, words! From
their point of view judges, jurymen and prosecutors
were useless
pawns in life's
game
of chess. Perhaps
they are! Who knows!
When Judge Bender entered the court room it
was, in spite of his injunction, full of blue blouses.
A special panel of two hundred talesmen filled the
first half dozen rows of benches, the others being
occupied by witnesses both Chinese and white,
72


Mock Hen and Mock Turtle
policemen and the miscellaneous human flotsam and
jetsam that always manages somehow or other to
find its way to a murder trial. Inside the rail
O'Brien, the assistant district attorney, was busy in
conversation with three cueless Chinamen in Ameri-
can clothes. At the bar sat Mock Hen with Mr.
Tutt beside him, flanked by Wong Get, Tutt,
Bonnie Doon and Buddha.
The judge beckoned Mr. Tutt and O'Brien to
the front of the bench.
"Is there any chance of disposing of this case
by a plea?” he inquired.
O'Brien looked expectantly at Mr. Tutt, who
shook his head. The judge shrugged his shoulders.
"Well, how long is it going to take?”
"About six weeks,” answered the old lawyer
quietly.
"What!” ejaculated judge and prosecutor in
unison.
“A day or two less, perhaps," affirmed Mr.
Tutt, “but, likely as not, considerably longer.”
"I shall cut it down as much as I can,” an-
nounced the judge, appalled at the prospect. “I
shall not permit this trial to be dragged out
indefinitely."
"Nothing would please me better, Your
Honor," said Mr. Tutt with the shadow of a smile.
"Shall we proceed to select the jury?”
The accuracy of Mr. Tutt's prophecy as to the
73


Tutt and Mr. Tutt
probable length of the trial was partially demon-
strated when it developed that most of the tales-
men had a pronounced antipathy to Chinese mur.
der cases, and a deep-rooted prejudice against the
race as a whole. In fact, a certain subconscious
influence affecting most of them was formulated
by the thirty-ninth talesman to be rejected, who,
in a moment of resentment, burst forth, “I don't
mind trying decent American criminals, but I hold
it isn't any part of a citizen's duty to try China-
men !" and was promptly struck off the jury list.
"I say, chief,” disgustedly declared O'Brien to
Peckham at the noon recess as they clinked glasses
over the bar at Pont's, “you've handed me a ripe,
juicy Messina all right! I won't be able to get a
jury. We've been at it since ten o'clock and we
haven't lured a single sucker into the box!”
“What's the matter?” inquired the D. A.
apprehensively.
"I can't quite make out," answered O'Brien.
“But most of 'em seem to have a sort of idea that
to kill a Chinaman ain't a crime but a virtue !"
“Well, don't tell anybody," whispered Peckham,
“but I'm somewhat of that
way of thinking myself.
Set 'em up again, John!"
However, by invoking the utmost celerity a jury
was at last selected and sworn at the end of the
nineteenth day of the trial. As a jury O'Brien
74


Mock Hen and Mock Turtle
confidentially admitted to Peckham it wasn't much!
But what could you expect of a bunch who were
willing to swear that they hadn't any prejudice
against a Chink and would as soon acquit him as a
white man? The truth was that they were all
gentlemen who, having lost their jobs, were will-
ing to swear to anything that would bring them
in two dollars a day. The more days the better !
And it is historic fact that during the sixty-nine
days of Mock Hen's prosecution not one of them
protested at being kept away from his wife and
children, his business or his pleasure. On the con-
trary they all slumbered peacefully from ten until
four-and when the trial ended, on the whole they
rather regretted that it was over, the only genuine
opinion regarding the case being that the Chinks
were all as funny as hell and that Mr. Tutt was a
bully old boy.
The evidence respecting the death of the unfor-
tunate Quong Lee made little impression upon
them. Seemingly they regarded the story much as
they did that of Elisha and the bears or Bel and
the dragon—as a sort of apocryphal narrative
which they were required to listen to, but in no
wise bound to believe. They were much interested
in Quong's suit of chain mail, however, and from
time to time awoke to enjoy the various verbal
encounters between the judge and Mr. Tutt. As
75


Tutt and Mr. Tutt
factors in the proceedings they did not count,
except to receive their two dollars per diem, board,
lodging and hack fare.
The trial of Mock Hen being conducted in a
foreign language, the first judicial step was the
swearing of an interpreter. The On Gees had
promptly produced one, whom O'Brien told the
court was a very learned man; a graduate of the
Imperial University at Peking, and a Son of the
Sacred Dragon. Be that as it may, he was not
prepossessing in his appearance and Mr. Tutt as-
sured Judge Bender that far from being what the
district attorney pretended, the man was a well-
known gambler, who made his living largely by
blackmail. He might be a son of a dragon or he
might not; anyway he was a son of Belial. An
interpreter was the conduit through which all the
evidence must pass. If the official were biased or
corrupt the testimony would be distorted, colored
or suppressed.
Now he-Mr. Tutt-had an interpreter, the
well-known Dr. Hong Su, against whom nothing
could be said, and upon whose fat head rested no
imputation of partiality; a graduate of Harvard,
a writer of note, a-
O'Brien sprang to his feet: “My interpreter
says your interpreter is an opium smuggler, that
he murdered his aunt in Hong Kong, that he isn't
76


Tutt and Mr. Tutt
bling like an infuriated turkey while his adversary
replied in similar fashion.
“This won't do!" snapped the judge. “This
trial will degenerate into nothing but a cat fight if
we are not careful."
Then a bright idea suggested
itself to his Occidental mind. “Suppose I appoint
an official umpire to say which of the other two
interpreters is correct--and let them decide who he
shall be ?"
This proposition was received with grunts of
satisfaction by the two antagonists, who conferred
together with astonishing amiability and almost
immediately conducted into the court room a tall,
emaciated Chinaman who they alleged was entirely
satisfactory to both of them. He was accordingly
sworn as a third interpreter, and the trial began
again.
It was observed that thereafter there was no
dispute whatever regarding the accuracy of the
testimony, and as each interpreter was paid for his
services at the rate of ten dollars a day it was
rumored that the whole affair had been arranged
by agreement between the two societies, which di-
vided the money, amounting to some eighteen hun-
dred dollars, between them. But, as O'Brien
afterward asked Peckham, "How in thunder could
you
tell ?"
The court's troubles had, however, only begun.
78


Mock Hen and Mock Turtle
Ah Fong was a whimsical-looking person, who
gave an impression of desiring to make himself
generally agreeable. He was, of course, the star
witness-if a Chinaman can ever be a star witness
and presumably had been carefully schooled as
to the manner in which he should give his testi-
mony.
He and he alone had seen the whole
tragedy from beginning to end. He it was, if
anybody, who would tuck Mock Hen comfortably
into his coffin.
The problem of the interpreters having been
solved Fong settled himself comfortably in the
witness chair, crossed his hands upon his stomach
and looked complacently at Mock Hen.
"Well, now let's get along," adjured His Honor.
“Swear the witness."
Mr. Tutt immediately rose.
“If the court please,” said he, “I object to the
swearing of the witness unless it is made to appear
that he will regard himself as bound by the oath
as administered. Now this man is a Chinaman.
I should like to ask him a preliminary question or
two."
“That seems fair, Mr. O'Brien," agreed the
court. “Do you see any reason why Mr. Tutt
shouldn't interrogate the witness ?"
"Oh, let me qualify my own witness !" retorted
O'Brien fretfully. “Ah Fong, will you respect the
79


Tutt and Mr. Tutt
oath to testify truthfully, about to be administered
to you?”
The interpreter delivered a broadside of Chinese
at Ah Fong, who listened attentively and replied
at equal length. Then the interpreter went at him
again, and again Ah Fong affably responded. It
was interminable.
The two muttered and chortled at each other
until O'Brien, losing patience, jumped up and
called out: “What's all this? Can't you ask him
a simple question and get a simple answer? This
isn't a debating society.”
The interpreter held
up his hand, indicating that
the prosecutor should have patience.
“Ah-ya-ya-oo-aroo-yung-ung-loy-a-a-ya oo-chu-a-
oy-ah-ohay-tching!” he concluded.
“A-yah-oy-a-yoo-oy-ah-chuck-uh-ung-loy-oo-ayah-
a-yoo-chung-chung-sat-00-aha-oy-ou-ungaroo • yah-
yah-yah!” replied Ah Fong.
"Thank heaven, that's over !" sighed O'Brien.
The interpreter drew himself up to his full
height.
“He says yes,” he declared dramatically.
"It's the longest yes I ever heard !” audibly
remarked the foreman, who was feeling his oats.
“Does not that satisfy you ?" inquired the court
of Mr. Tutt.
80


Mock Hen and Mock Turtle
"I am sorry to say it does not !” replied the
latter. “Mr. O'Brien has simply asked whether
he will keep his oath. His reply sheds no light on
whether his religious belief is such that it would
obligate him to respect an oath.”
"Well, ask him yourself !” snorted O'Brien.
“Ah Fong, do you believe in any god?" inquired
Mr. Tutt.
"He says yes," answered the interpreter after
the usual interchange.
"What god do you believe in ?" persisted Mr.
Tutt.
Suddenly Ah Fong made answer without the
intervention of the interpreter.
"When I in this country," he replied com-
placently in English, “I b’lieve Gees Clist; when
I in China I b’lieve Chinese god."
“Does Your Honor hold that an obliging ac-
quiesence in local theology constitutes such a reli-
gious belief as to make this man's oath sacred ?"
inquired Mr. Tutt.
The judge smiled.
“I don't see why not!” he declared. “There
isn't any precedent as far as I am aware. But he
says he believes in the Deity. Isn't that enough?"
“Not unless he believes that the Deity will pun-
ish him if he breaks his oath,” answered Mr. Tutt.
“Let me try him on that?"
81


Tutt and Mr. Tutt
1
"Ah Fong, do you think God will punish you
if
you
tell a lie?"
Fong looked blank. The interpreter fired a few
salvos.
"He says it makes a difference the kind of oath."
“Suppose it is a promise to tell the truth?”
“He says what kind of a promise?”
“A promise on the Bible," answered Mr. Tutt
patiently.
“He says what god you mean!” countered the
interpreter.
"Oh, any god!" roared Mr. Tutt.
The interpreter, after a long parley, made reply.
“Ah Fong says there is no binding oath except
on a chicken's head."
Judge Bender, O'Brien and Mr. Tutt gazed at
one another helplessly.
"Well, there you are!" exclaimed the lawyer.
"Mr. O'Brien's oath wasn't any oath at all! What
kind of a chicken's head?"
“A white rooster."
“Quite so!" nodded Mr. Tutt. "Your Honor,
I object to this witness being sworn by any oath or
in any form except on the head of a white rooster!"
"Well, I don't happen to have a white rooster
about me!” remarked O'Brien, while the jury
rocked with glee. “Ask him if something else
won't do. A big book for instance ?”
82


Mock Hen and Mock Turtle
The interpreter put the question and then shook
his head. According to Ah Fong there was no
virtue in books whatever, either large or small.
On some occasions an oath could be properly taken
on a broken plate—also white—but not in murder
cases. It was chicken or nothing.
"Are you not willing to waive the formality of
an oath, Mr. Tutt?” asked the judge in slight
impatience.
“And wave my client into the chair ?" demanded
the lawyer. "No, sir !"
“I don't see what we can do except to adjourn
court until you can procure the necessary poultry,"
announced Judge Bender. “Even then we can't
slaughter them in court. We'll have to find some
suitable place!"
"Why not kill one rooster and swear all the
witnesses at once?” suggested Mr. Tutt in a
moment of inspiration.
“My God, chief !” exclaimed O'Brien at four
o'clock. “There ain't a white rooster to be had
anywhere! Hens, yes! By the hundred! But
roosters are extinct! Tomorrow will be the twenty-
first day of this prosecution and not a witness
sworn yet.
However, a poultryman was presently discov-
ered who agreed simply for what advertising there
83


Tutt and Mr. Tutt
was in it to furnish a crate of white roosters, a
hatchet and a headsman's block, and to have them
in the basement of the building promptly at ten
o'clock.
Accordingly, at that hour Judge Bender con-
vened Part IX of the General Sessions in the court
room and then adjourned downstairs, where all
the prospective witnesses for the prosecution were
lined up in a body and told to raise their right
hands.
Meantime Clerk McGuire was handed the
hatchet, and approached the coop with obvious
misgivings. Ah Fong had already given a dubious
approval to the sex and quality of the fowls inside
and naught remained but to submit the proper oath
and remove the head of the unfortunate victim.
A large crowd of policemen, witnesses, reporters,
loafers, truckmen and others drawn by the unusual
character of the proceedings had assembled and
now proceeded without regard for the require-
ments of judicial dignity to encourage McGuire in
his capacity of executioner, by profane shouts and
jeers, to do his deadly deed.
But the clerk had had no experience with
chickens and in bashfully groping for the selected
rooster allowed several other occupants of the
crate to escape. Instantly the air was filled with
fluttering, squawking fowls while fifty frenzied
84


Mock Hen and Mock Turtle
police officers and Chinamen attempted vainly to
reduce them to captivity again. In the midst of
the mêlée McGuire caught his rooster, and fearful
lest it should escape him managed somehow to
decapitate it. The body, however, had been flop-
ping around spasmodically several seconds upon
the floor before he realized that the oath had not
been administered, and his voice suddenly rose
above the pandemonium in an excited brogue.
"Hold up your hands, you! You do solemnly
swear that in the case of The People against Mock
Hen you will tell the truth, the whole truth and
nothing but the truth so help you God!”
But the interpreter was at that moment engaged
in clasping to his bosom a struggling rooster and
was totally unable to fulfill his functions. Mean-
time the jury, highly edified at this illustration of
the administration of justice, gazed down upon
the spectacle from the stairs.
“This farce has gone far enough !” declared
Judge Bender disgustedly. "We will return to
the court room. Put those roosters back where
they belong !"
Once more the participants ascended to Part IX
and Ah Fong took his seat in the witness chair.
The interpreter's blouse was covered with pin-
feathers and one of his thumbs was bleeding
profusely.
85


Tutt and Mr. Tutt
“Ask the witness if the oath that he has now
taken will bind his conscience?" directed the court.
Again the interpreter and Ah Fong held
converse.
"He says,” translated that official calmly, "that
the chicken oath is all right in China, but that it
is no good in United States, and that anyway the
proper form of words was not used.”
“Good Lord!" ejaculated O'Brien. “Where
am I?"
“Me tell truth, all light,” suddenly announced
Ah Fong in English. “Go ahead! Shoot!” And
he smiled an inscrutable age-long Oriental smile.
The jury burst into laughter.
“He's stringing you!" the foreman kindly
informed O'Brien, who cursed silently.
“Go on, Mister District Attorney, examine the
witness," directed the judge. "I shall permit no
further variations upon the established forms of
procedure."
Then at last and not until then-on the morn-
ing of the twenty-first day—did Ah Fong tell his
simple story and the jury for the first time learn
what it was all about. But by then they had
entirely ceased to care, being engrossed in watch-
ing Mr. Tutt at his daily amusement of torturing
O'Brien into a state of helpless exasperation.
Ah Fong gave his testimony with a clarity of
86


Mock Hen and Mock Turtle
detail that left nothing to be desired, and he was
corroborated in most respects by the Italian woman,
who identified Mock Hen as the Chinaman with
the iron bar. Their evidence was supplemented by
that of Bull Neck Burke and Miss Malone, who
also were positive that they had seen Mock running
from the scene of the murder at exactly four-one
o'clock.
Mr. Tutt hardly cross-examined Fong at all,
but with Mr. Burke he pursued very different tac-
tics, speedily rousing the wrestler to such a condi-
tion of fury that he was hardly articulate, for the
old lawyer gently hinted that Mr. Burke was
inventing the whole story for the purpose of assist-
ing his friends in the On Gee Tong.
“But I tell yer I don't know no Chinks !” bel-
lowed Burke, looking more like a bull than ever.
“This here Mock Hen run right by me. My goil
saw him too. I looked at me ticker to get the
time!"
“Ah! Then you expected to be a witness for
the On Gee Tong!”
"Naw! I tell yer I was walkin' wit' me goill”
"What is the lady's name?”
"Miss Malone."
“What is her occupation?”
“She's a gay burlesquer.”
“A
gay burlesquer?”
87


Tutt and Mr. Tutt
“Sure-champagne goil and gay burlesquer."
"A champagne girl!”
“Dat's what I said.”
“You mean that she is upon the stage?”
"Sure—dat's it!"
“Oh!" Mr. Tutt looked relieved.
"What had you and Miss Malone been doing
that afternoon?"
"I told yer—walkin'."
Mr. Tutt coughed slightly.
“Is that all?"
“Say, watcha drivin' at?”
Mr. Tutt elevated his bushy eyebrows.
"How do you earn your living ?” he demanded,
changing his method of attack.
Bull Neck allowed his head to sink still farther
into the vast bulk of his immense torso, strangely
resembling, in this position, the fabled anthropo-
phagi whose heads are reputed thus to “grow
beneath their shoulders."
Then throwing out his jaw he announced
proudly between set teeth: "I'm a perfessor of
physical sculture!"
The jury sniggered. Mr. Tutt appeared politely
puzzled.
"A professor of what?"
“A perfessor of physical sculture!" repeated
Bull Neck with great satisfaction.
88


Mock Hen and Mock Turtle
"Oh! A professor of physical sculpture l” ex-
claimed Mr. Tutt, light breaking over his wrinkled
countenance. “And what may that be?”
Bull Neck looked round disgustedly at the jury
as if to say: "What ignorance !"
"Trainin' an' developin' prominent people!” he
explained.
“Um!" remarked Mr. Tutt. "Who invited you
to testify in this case ?"
"Mr. Mooney."
"Oh, you're a friend of Mooney's! That is
all !”
Now it is apparent from these questions and
answers that Mr. Burke had testified to nothing
to his discredit and had conducted himself as a
gentleman and a sportsman according to his best
lights. Yet owing to the subtle suggestions con-
tained in Mr. Tutt's inflections and demeanor the
jury leaped unhesitatingly to the conclusion that
here was a man so ignorant and debased that if he
were not deliberately lying he was being made a
cat’s-paw by the police in the interest of the On
Gee Tong.
Miss Malone fared even worse, for after a pre-
liminary skirmish she flatly refused to give Mr.
Tutt or the jury any information whatever regard-
ing her past life, while Mooney, of course, labored
from the beginning to the end of his testimony
89


Tutt and Mr. Tutt
under the curse of being a policeman, one of that
class whom most jurymen take pride in saying they
hold in natural distrust. In a word, the white
witnesses to the dastardly murder of Quong Lee
created a general impression of unreliability upon
the minds of the jury, who wholly failed to realize
the somewhat obvious truth that the witnesses to
a crime in Chinatown will naturally if not inevit-
ably be persons who either reside in or frequent
that locality.
Twenty-four days had now been consumed in
the trial, and as yet no Chinese witnesses except
Ah Fong had been called. Now, however, they
appeared in cohorts. Though Mooney had sworn
that the streets were practically empty at the time
of the homicide forty-one Chinese witnesses swore
positively that they had been within easy view,
claiming variously to have been behind doors, peek-
ing through shutters, at upper windows and even
on the roofs. All had identified Mock Hen as the
murderer, and none of them had ever heard of
either the On Gee or the Hip Leong Tong! Mr.
Tutt could not shake them upon cross-examination,
and O'Brien began to show signs of renewed con-
fidence. Each testified to substantially the same
story and they occupied seventeen full days in the
telling, so that when the prosecution rested, forty-
two days had been consumed since the first tales-
90


Mock Hen and Mock Turtle
man had been called. The trial had sunk into a
dull, unbroken monotony, as Mr. Tutt said, of the
“vain repetitions of the heathen.” Yet the police
and the district attorney had done all that could
reasonably have been expected of them. They were
simply confronted by the very obvious fact—a con-
dition and not a theory—that the legal processes
of Anglo-Saxon jurisprudence are of slight avail
in dealing with people of another race.
Now it is possible that even had Mr. Tutt put
in no defense whatever the jury might have refused
to convict, for there was a curious air of unreality
surrounding the whole affair. It all seemed some-
how as if-assuming that it had ever taken place
at all—it had occurred in some other world and in
some other age. Perhaps under what might have
been practically a direction of the court a verdict
of conviction might have been returned—but it is
doubtful. The more witnesses testified to exactly
the same thing in precisely the same words the
less likely it appeared to be.
But Mr. Tutt was taking no chances and, upon
the forty-third day of the trial, at a nod from the
bench, he opened his case.
Never had he been
more serious; never more persuasive. Abandoning
every suggestion of frivolity, he weighed the testi-
mony of each white witness and pointed out its
obvious lack of probative value. Not one, he said,
91


Tutt and Mr. Tutt
except the Italian woman, had had more than a
fleeting glance of the face of the man now accused
of the crime. Such an identification was useless.
The Chinamen were patently lying. They had not
been there at all! Would any member of the jury
hang a dog, even a yellow one, on such testimony?
Of course not! Much less a human being. The
people had called forty witnesses to prove that
Mock Hen had killed Quong Lee. It made no
difference. The On Gee could have just as easily
produced four hundred. Moreover, Mr. Tutt did
a very daring thing. He pronounced all Chinese
testimony in an American court of justice as abso-
lutely valueless, and boasted that for every China-
man who swore Mock Hen was guilty he would
bring forward two who would swear him innocent.
The thing was, as he had carefully explained
to Bonnie Doon, to prove that Mock was a good
Chinaman and, if the jury did not believe that
there was any such animal, to convince them that
it was possible. His first task, however, was to
polish off the Chinese testimony by calling the
witnesses who had been secured under the guidance
of Wong Get. He admitted afterward that in
view of the exclusion law he had not supposed there
were so many Chinamen in the United States, for
they crowded the corridors and staircases of the
Criminal Courts Building, arriving in companies-
the Wong family, the Mocks, the Fongs, the
92


Mock Hen and Mock Turtle
Lungs, the Sues, and others of the sacred Hip
Sing Society from near at hand and from distant
parts—from Brooklyn and Flatbush, from Flush-
ing and Far Rockaway, from Hackensack and
Hoboken, from Trenton and Scranton, from Buf-
falo and Saratoga, from Chicago and St. Louis, and
each and every one of them swore positively upon
the severed neck of the whitest rooster—the broken
fragments of the whitest of porcelain plates—the
holiest of books—that he had been present in per-
son at Fulton Market in New York City at pre-
cisely four-fifteen o'clock in the afternoon and
assisted Mock Hen, the defendant, in selecting and
purchasing a terrapin for stew.
Mr. Tutt grinned at the jury and the jury
grinned affectionately back at Mr. Tutt. Indeed,
after the length of time they had all been together
they had almost as much respect for him as for the
judge upon the bench. The whole court seemed to
be a sort of Tutt Club, of which even O'Brien
was a member.
“Now," said Mr. Tutt, "I will call a few wit-
nesses to show you what kind of a man this is
whom these highbinders accuse of the crime of
murder !"
Mock, rolling his eyes heavenward, assumed an
expression of infantile helplessness and trust.
"Don't overdo it!" growled Tutt. "Just look
kind of gentle.”
93


Tutt and Mr. Tutt
So Mock looked as gentle as a suckling dove
while two professors from Columbia University,
three of his landlords in his more reputable busi-
ness enterprises, the superintendent of the Rising
Sun Mission, four ex-police officers, a fireman, and
an investigator for the Society for the Suppression
of Sin swore upon Holy Writ and with all sincerity,
that Mock Hen was not only a person of the most
excellent character and reputation but a Christian
and a gentleman.
And then Mr. Tutt played his trump card.
"I will call Miss Frances Duryea, of Hudson
House," he announced. “Miss Duryea, will you
kindly take the witness chair?"
Miss Fanny modestly rose from her seat in the
rear of the room and came forward. No one
could for an instant doubt the honesty and impar-
tiality of this devoted middle-aged woman, who,
surrendering the comforts and luxuries of her home
uptown, to which she was well entitled by reason
of her age, was devoting herself to a life of service.
If a woman like that, thought the jury, was ready
to vouch for Mock's good character, why waste
any more time on the case? But Miss Fanny was
to do much more.
“Miss Duryea," began Mr. Tutt, "do you know
the defendant?"
“Yes, sir; I do," she answered quietly.
94


Mock Hen and Mock Turtle
"How long have you
known him?"
“Six years.
“Do you know his reputation for peace and
quiet?”
Miss Fanny half turned to the judge and then
faced the jury.
"He is one of the sweetest characters I have
ever known,” she replied, "and I have known
many
“Oh, I object!” interrupted O'Brien. "This
lady can't be permitted to testify to anything like
that. She must be limited by the rules of
evidence !"
With one movement the jury wheeled and glared
at him.
"I guess this lady can say anything she wants !"
declared the foreman chivalrously.
O'Brien sank down in his seat. What was the
use!
“Go on, please,” gently directed Mr. Tutt.
"As I was saying, Mr. Mock Hen is a very
remarkable character," responded Miss Fanny.
“He is devoted to the mission and to us at the
settlement. I would trust him absolutely in regard
to anything."
“Thank you," said Mr. Tutt, smiling benignly.
“Now, Miss Duryea, did you see Mock Hen at
any time on May sixth ?”
95


Tutt and Mr. Tutt
Instantly the jury showed renewed signs of life.
May sixth? That was the day of the murder.
"I did," answered Miss Fanny with conviction.
"He came to see me at Hudson House in the
afternoon and while we were talking the clock
struck four.”
The jury looked at one another and nodded.
"Well, I guess that settles this case !" announced
the foreman.
“Right!" echoed a talesman behind him.
"I object!" wailed O'Brien. “This is entirely
improper!"
“Quite so!" ruled Judge Bender sternly. “The
jurymen will not make any remarks !"
"But, Your Honor—we all agreed at recess
there was nothing in this case," announced the
foreman. “And now this testimony simply clinches
it. Why go on with it!"
“That's so!" ejaculated another. “Let us go,
judge."
Mr. Tutt's weather-beaten face was wreathed in
smiles.
"Easy, gentlemen !” he cautioned.
The judge shrugged his shoulders, frowning.
“This is very irregular !” he said.
Then he beckoned to O'Brien, and the two whis-
pered together for several minutes, while all over
the court room on the part of those who had sat
96


Mock Hen and Mock Turtle
there so patiently for sixty-nine days there was a
prolonged and ecstatic wriggling of arms and legs.
Instinctively they all knew that the farce was over.
The assistant district attorney returned to his
table but did not sit down.
“If the court please," he said rather wearily,
"the last witness, Miss Duryea, by her testimony,
which I personally am quite ready to accept as
truthful, has interjected a reasonable doubt of the
defendant's guilt into what otherwise would in my
opinion be a case for the jury. If Mock Hen was
at Hudson House, nearly two miles from Pell and
Doyers Streets, at four o'clock on the afternoon of
the homicide, manifestly he could not have been
one of the assailants of Quong Lee at one minute
past four. I am satisfied that no jury would
convict-"
“Not on your lifel” snorted the foreman airily.
and I therefore,” went on O'Brien, “ask
the court to direct an acquittal.”
In the grand banquet hall of the Shanghai and
Hongkong American-Chinese Restaurant, Ephraim
Tutt, draped in a blue mandarin coat with a tas-
seled pill box rakishly upon his old gray head, sat
beside Wong Get and Buddha at the head of a
long table surrounded by three hundred Chinamen
in their richest robes of ceremony. Lanterns of
97


Tutt and Mr. Tutt
party-colored glass swaying from gilded rafters
shed a strange light upon a silken cloth marvelously
embroidered and laden with the choicest of Ori-
ental dishes, and upon the pale faces of the Hip
Leong Tong—the Mocks, the Wongs, the Fongs
and the rest—both those who had testified and
also those who had merely been ready if duty called
to do so, all of whom were now gathered together
to pay honor where they felt honor to be due;
namely, at the shrine of Mr. Tutt.
Deft Chinese waiters slipped silently from guest
to guest with bird's-nest soup, guy soo main, mon
goo guy pan, shark's fin and lung har made of
shreds of lobster, water chestnuts, rice and the
succulent shoots of the young bamboo, while three
musicians in a corner sang through their nose a
syncopated dirge. “Wang-ang-ang-ang!" it rose
and fell as Mr. Tutt, his neck encircled by a wreath
of lilies, essayed to manipulate a pair of long black
chop-sticks. “Wang-ang-ang-ang!" About him
were golden limes, ginger in syrup, litchi nuts,
pickled leeches.
Then he felt a touch upon his shoulder and
turned to see Fong Hen, the slipper, standing be-
side him. It was the duty of Fong Hen to drink
with each guest-more than that, to drink as
much as each guest drank! He gravely offered
Mr. Tutt a pony of rice brandy. It was not the
98


Mock Hen and Mock Turtle
fiery lava he had anticipated, but a soft, caressing
nectar, fragrant as if distilled from celestial flowers
of the time of Confucius. The slipper swallowed
the same quantity at a gulp, bowed and passed
along.
Mr. Tutt vainly tried to grasp the fact that he
was in his own native city of New York. Long
sleeves covered with red and purple dragons hid
his arms and hands, and below the collar a smooth
tight surface of silk across his breast made access
to his pockets quite impossible. In one of them
reposed twenty one-thousand dollar bills—his fee
for securing the acquittal of Mock Hen. Yes, he
was in New York!
The monotonous wail of the instruments, the
pungency of the incense, the subdued light, the
humid breath of the roses carried the thoughts of
Mr. Tutt far away. Before him, against the blue
misty sunshine, rose the yellow temples of Peking.
He could hear the faint tintinnabulation of bells.
He was wandering in a garden fragrant with jas-
mine blossoms and adorned with ancient graven
stones and carved gilt statues. The air was sweet.
Mr. Tutt was very tired. ...
"Let him sleep!” nodded Buddha, deftly con-
veying to his wrinkled lips a delicate morsel of
guy
yemg dun. "Let him sleep! He has earned his
sleep. He has saved our face !"
99


Tutt and Mr. Tutt
It was after midnight when Mr. Tutt, heavily
laden with princely gifts of ivory and jade and
boxes of priceless teas, emerged from the side door
of the Shanghai and Hongkong American-Chinese
Restaurant. The sky was brilliant with stars and
the sidewalks of Doyers and Pell Streets were
crowded with pedestrians. Near by a lantern-
bedecked rubber-neck wagon was in process of un-
loading its cargo of seekers after the curious and
unwholesome. On either side of him walked
Wong Get and Buddha. They had hardly reached
the corner when five shots echoed in quick succes-
sion above the noise of the traffic and the crowd
turned with one accord and rushed in the direction
from which he had just come.
Mr. Tutt, startled, stopped and looked back.
Courteously also stopped Wong Get and Buddha.
A throng was fast gathering in front of the Shang-
hai and Hongkong Restaurant.
Then Murtha appeared, shouldering his way
roughly through the mob. Catching sight of Mr.
Tutt, he paused long enough to whisper hoarsely
in the lawyer's ear: “Well, they got Mock Hen!
Five bullets in him! But if they were going to,
why in hell couldn't they have done it three months
ago?"
100


Samuel and Delilah
"And it came to pass, when she pressed him daily with
her words, and urged him, so that his soul was vexed
unto death; that he told her all his heart, and said unto
her, There hath not come a razor upon mine head;
if I be shaven, then my strength will go from me, and I
shall become weak and be like any other man."
- JUDGES XVI, 16, 17.
HA
TAVE you seen 76 Fed.' anywhere, Mr.
Tutt?" inquired Tutt, appearing suddenly
in the doorway of his partner's office.
Mr. Tutt looked up from Page 364 of the opin-
ion he was perusing in "The United States vs. One
Hundred and Thirty-two Packages of Spirituous
Liquors and Wines."
"Got it here in front of me," he answered
shortly. "What do you want it for?”
Tutt looked over his shoulder.
"That's a grand name for a case, isn't it?
'Packages of Wines!'” he chuckled. “I made a
note once of a matter entitled 'United States vs.
101


Tutt and Mr. Tutt
Forty-three Cases of Frozen Eggs'; and of another
called 'United States vs. One Feather Mattress and
One Hundred and Fifty Pounds of Butter'-along
in 197 Federal Reports, if I remember correctly.
And you recall that accident case we had-Bump
against the Railroad?”
"You can't tell me anything about names," re-
marked Mr. Tutt. "I once tried a divorce action.
Fuss against Fuss; and another, Love against Love.
Do you really want this book ?"
"Not if you are using it,” replied Tutt. “I just
wanted to show an authority to Mr. Sorg, the
president of the Fat and Skinny Club. You know
our application for a certificate of incorporation
was denied yesterday by Justice McAlpin.”
"No, I didn't know it," returned Mr. Tutt.
“Why?"
“Here's his memorandum in the Law Journal,”
answered his partner. “Read it for yourself”:
Matter of Fat and Skinny Club, Inc. This is an
application for approval of a certificate of incorporation
as a membership corporation. The stated purposes are
to promote and encourage social intercourse and good
fellowship and to advance the interests of the community.
The name selected is the Fat and Skinny Club. If this
be the most appropriate name descriptive of its member-
ship it is better that it remain unincorporated. Applica-
tion denied.
102


Samuel and Delilah
"Now who says the law isn't the perfection of
common sense?" ruminated Mr. Tutt. "Its gen-
eral principles are magnificent.”
“And yet,” mused Tutt, “only last week Judge
McAlpin granted the petition of one Solomon
Swackhamer to change his name to Phillips Brooks
Vanderbilt. Is that right? Is that justice? Is it
equity? I ask you !-when he turns down the Fat
and Skinnies ?”
"Oh, yes it is,” retorted Mr. Tutt. "When you
consider that Mr. Swackhamer could have assumed
the appellation of P. B. Vanderbilt or any other
name he chose without asking the court's permis-
sion at all.”
"What!” protested Tutt incredulously.
"That's the law," returned the senior partner.
"A man can call himself what he chooses and
change his name as often as he likes—so long, of
course, as he doesn't do it to defraud. The mere
fact that a statute likewise gives him the right to
apply to the courts to accomplish the same result
makes no difference."
“Of course it might make him feel a little more
comfortable about it to do it that way,' suggested
Tutt. "Do you know, as long as I've practised
law in this town I've always assumed that one had
to get permission to change one's name."
"You've learned something," said Mr. Tutt
103


Tutt and Mr. Tutt
suavely. “I hope you will put it to good account.
Here's '76 Fed.' Take it out and console the Fat
and Skinny Club with it if you can."
Mr. Tutt surrendered the volume without appar-
ent regret and Tutt retired to his own office and to
the task of soothing the injured feelings of Mr.
Sorg.
A simple-minded little man was Tutt, for all
his professional shrewdness and ingenuity. Like
many a hero of the battlefield and of the bar, once
inside the palings of his own fence he became
modest, gentle, even timorous. For Abigail, his
wife, had no illusions about him and did not affect
to have any. To her neither Tutt nor Mr. Tutt
was any such great shakes. Had Tutt dared to
let her know of many of the schemes which he
'devised for the profit or safety of his clients she
would have thought less of him still; in fact, she
might have parted with him forever. In a sense
Mrs. Tutt was an exacting woman. Though she
somewhat reluctantly consented to view the hours
from nine a. m. to five p. m. in her husband's day
as belonging to the law, she emphatically regarded
the rest of the twenty-four hours as belonging to
her.
The law may be, as Judge Holmes has called it,
"a jealous mistress," but in the case of Tutt it was
not nearly so jealous as his wife. So Tutt was
104


Samuel and Delilah
compelled to walk the straight-and-narrow path
whether he liked it or not. On the whole he liked
it well enough, but there were times—usually in
the spring—when without being conscious of what
was the matter with him he mourned his lost youth.
For Tutt was only forty-eight and he had had a
grandfather who had lived strenuously to upward
of twice that age. He was vigorous, sprightly,
bright-eyed and as hard as nails, even if somewhat
resembling in his contours the late Mr. Pickwick.
Mrs. Tutt was tall, spare, capable and sardonic.
She made Tutt comfortable, but she no longer ap-
pealed to his sense of romance. Still she held him.
As the playwright hath said “It isn't good looks
they want, but good nature; if a warm welcome
won't hold them, cold cream won't.”
However, Tutt got neither looks nor cold cream.
His welcome, in fact, was warm only if he stayed
out too late, and then the later the warmer. His
relationship to his wife was prosaic, respectful. In
his heart of hearts he occasionally thought of her
as exceedingly unattractive. In a word Mrs. Tutt
performed her wifely functions in a purely matter-
of-fact way. Anything else would have seemed to
her unseemly. She dressed in a manner that would
have been regarded as conservative even on Beacon
Hill. She had no intention of making an old fool
of herself or of letting him be one either. When
105


Tutt and Mr. Tutt
people had been married thirty years they could
take some things for granted. Few persons there-
fore had ever observed Mr. Tutt in the act of
caressing Mrs. Tutt; and there were those who
said that he never had. Frankly, she was a trifle
forbidding: superficially not the sort of person to
excite a great deal of sentiment; and occasionally,
as we have hinted, in the spring Tutt yearned for
a little sentiment.
He did his yearning, however, entirely on the
side and within those hours consecrated to the law.
In his wife's society he yearned not at all. In her
company he carefully kept his thoughts and his
language inside the innermost circle of decorum.
At home his talk was entirely “Yea, yea," and
"Nay, nay," and dealt principally with politics and
the feminist movement, in which Abigail was
deeply interested.
And by this we do not mean to suggest that at
other times or places Tutt was anything but con-
ventionally proper. He was not. He only yearned
to be, well knowing that he was deficient in courage
if not in everything else.
But habit or no habit, likely or unlikely, Mrs.
Tutt had no intention of taking any chances so
far as Tutt was concerned. If he did not reach
home precisely at six explanations were in order,
and if he came in half an hour later he had to
106


Tutt and Mr. Tutt
clients were no more worthy of condemnation than
those put forward by far higher-priced and much
more celebrated attorneys.
Not that Mrs. Tutt was blind to the dangers to
which her husband by virtue of his occupation was
exposed. Far from it. Indeed she made it her
business to pay periodical visits to the office, osten-
sibly to see whether or not it was properly cleaned
and the windows washed, but in reality-or at least
so Tutt suspected to find out whether the per-
sonnel was entirely suitable for a firm of their
standing and particularly for a junior partner of
his susceptibilities.
But she never discovered anything to give her
the slightest cause for alarm.
The dramatis per-
sonæ of the offices of Tutt & Tutt were character-
istic of the firm, none of their employees—except
Miss Sondheim, the tumultous-haired lady stenog-
rapher—and Willie, the office boy, being under
forty years of age.
When not engaged in running errands or fussing
over his postage-stamp album, Willie spent most
of his time teasing old Scraggs, the scrivener, an
unsuccessful teetotaler. A faint odor of alcohol
emanated from the cage in which he performed his
labors and lent an atmosphere of cheerfulness to
what might otherwise have seemed to Broadway
slients an unsympathetic environment, though there
108


Samuel and Delilah
were long annual periods during which he was as
sober as a Kansas judge. The winds of March
were apt, however, to take hold of him. Perhaps
it was the spring in his case also.
The backbone of the establishment was Miss
Minerva Wiggin. In every law office there is
usually some one person who keeps the shop going.
Sometimes it is a man. If so, he is probably a
sublimated stenographer or law clerk who, having
worked for years to get himself admitted to the
bar, finds, after achieving that ambition, that he
has neither the ability nor the inclination to brave
the struggle for a livelihood by himself. Per-
chance as a youth he has had visions of himself
arguing test cases before the Court of Appeals
while the leaders of the bar hung upon his every
word, of an office crowded with millionaire clients
and servile employees, even as he is servile to the
man for whom he labors for a miserly ten dollars
a week.
His ambition takes him by the hand and leads
him to high places, from which he gazes down into
the land of his future prosperity and greatness.
The law seems a mysterious, alluring, fascinating
profession, combining the romance of the drama
with the gratifications of the intellect. He springs
to answer his master's bell; he sits up until all
hours running down citations and making extracts
109


Tutt and Mr. Tutt
from opinions; he rushes to court and answers the
calendar and sometimes carries the lawyer's brief
case and attends him throughout a trial. Three
years go by-five—and he finds that he is still
doing the same thing. He is now a member of the
bar, he has become the managing clerk, he attends
to fairly important matters, engages the office
force, superintends transfer of title, occasionally
argues a motion. Five years more go by and per-
haps his salary is raised a trifle more. Then one
day he awakes to the realization that his future is
to be only that of a trusted servitor.
Perchance he is married and has a baby. The
time has come for him to choose whether he will
go forth and put his fortune to the test "to win
or lose it all” or settle down into the position of
faithful legal hired man. He is getting a bit bald,
he has had one or two tussles with his bank about
accidental overdrafts. The world looks pretty
bleak outside and the big machine of the law goes
grinding on heartless, inevitable. Who is he to
challenge the future? The old job is fairly easy;
they can't get on without him, they say; here is
where he belongs; he knows his business-give him
his thirty-five hundred a year and let him stay!
That is Binks, or Calkins, or Shivers, or any
one of those worried gray-haired men who sit in
the outer office behind a desk strewn with papers
and make sure that no mistakes have been made.
110


Samuel and
Delilah
To them every doubtful question of practise is
referred and they answer instantly—sometimes
wrongly, but always instantly. They know the last
day for serving the demurrer in Bilbank against
Terwilliger and whether or not you can tax a
referee's fee as a disbursement in a bill of costs;
they are experts on the precise form for orders in
matrimonial actions and the rule in regard to filing
a summons and complaint in Oneida County; they
stand between the members of the firm and dis-
agreeable clients; they hire and discharge the office
boys; they do everything from writing a brief for
the Supreme Court of the United States down to
making the contract with the window cleaners;
they are the only lawyers who really know any-
thing, and they were once promising young men,
who have found out at last that life and the Sunday-
school books are very far apart; but they run the
works and make the law a gentleman's profession
for the rest of us. They are always there. Others
come, grow older, go away, but they remain.
Many of them drink. All of which would be
irrelevant, incompetent and immaterial if this were
not a legal story.
Scraggs had been one of these, but he had also
been one of those who drank, and now he was
merely a bookkeeper. Miss Wiggin reigned in his
stead.
A woman and not a man kept Tutt & Tutt on
111


Tutt and Mr. Tutt
the map.
When this sort of thing occurs it is
usually because the woman in question is the ablest
and very likely also the best person in the outfit,
and she assumes the control of affairs by a process
of natural selection. Miss Wiggin was the con-
science, if Mr. Tutt was the heart, of Tutt & Tutt,
Nobody, unless it was Mr. Tutt, knew where she
had come from or why she was working if at all
in only a semi-respectable law office. Without her
something dreadful would have happened to the
general morale. Everybody recognized that fact.
Her very appearance gave the place tone-neu-
tralized the faint odor of alcohol from the cage.
For in truth she was a fine-looking woman. Had
she been costumed by a Fifth Avenue dressmaker
and done her coiffure differently she would have
been pretty.
Because she drew her gray hair
straight back from her low forehead and tied it in
a knob on the back of her head, wore paper cuffs
and a black dress, she looked nearer fifty than
forty-one, which she was. Two hundred dollars
would have taken twenty years off her apparent
age—a year for every ten dollars; but she would,
not have looked a particle less a lady.
Her duties were ambiguous. She was always
the first to arrive at the office and was the only
person permitted to open the firm mail outside of
its members. She overlooked the books that
112


Samuel and Delilah
Scraggs kept and sent out the bills. She kept the
key to the cash box and had charge of the safe.
She made the entries in the docket and performed
most of the duties of a regular managing clerk.
She had been admitted to the bar. She checked
up the charge accounts and on Saturdays paid off
the office force. In addition to all these things she
occasionally took a hand at a brief, drew most of
the pleadings, and kept track of everything that
was done in the various cases.
But her chief function, one which made her in-
valuable, was that of receiving clients who came
to the office, and in the first instance ascertaining
just what their troubles were; and she was so
sympathetic and at the same time so sensible that
many a stranger who casually drifted in and would
otherwise just as casually have drifted out again
remained a permanent fixture in the firm's clientele.
Scraggs and William adored her in spite of her
being an utter enigma to them. She was quiet but
businesslike, of few words but with a latent sense
of humor that not infrequently broke through the
surface of her gravity, and she proceeded upon the
excellent postulate that everyone with whom she
came in contact was actuated by the highest sense
of honor. She acted as a spiritual tonic to both
Mr. Tutt and Tutt—especially to the latter, who
was the more in need of it. If they were ever
113


Tutt and Mr. Tutt
tempted to stray across the line of professional
rectitude her simple assumption that the thing
couldn't be done usually settled the matter once and
for all. On delicate questions Mr. Tutt frankly
consulted her. Without her, Tutt & Tutt would
have been shysters; with her they were almost re-
spectable. She received a salary of three thousand
dollars a year and earned double that amount, for
she served where she loved and her first thought
was of Tutt & Tutt. If you can get a woman like
that to run your law office do not waste any time
or consideration upon a man. Her price is indeed
above rubies.
Yet even Miss Wiggin could not keep the shad-
ow of the vernal equinox off the simple heart of
the junior Tutt. She had seen it coming for sev-
eral weeks, had scented danger in the way
Tutt's
childish eye had lingered upon Miss Sondheim's
tumultous black hair and in the rather rakish,
familiar way he had guided the ladies who came
to get divorces out to the elevator. And then
there swam into his life the beautiful Mrs. Allison,
and for a time Tutt became not only hysterically
young again, but—well, you shall see.
Yet, curiously enough, though we are a long
way from where this story opened, it all goes back
to Phillips Brooks Vanderbilt and the Fat and
Skinny Club and the right to call ourselves by
114


Samuel and Delilah
what names we please. Moreover, as must be
apparent, all that happened occured beyond Miss
Wiggin's sphere of spiritual influence. Yet, had
it not, even she could not have harnessed Leviathan
or loosed the bands of Orion—to say nothing of
counteracting the effect of spring.
When Tutt returned with “76 Fed.” after the
departure of Mr. Sorg he found his partner smok-
ing the usual stogy and gazing pensively down
upon
the harbor. The immediate foreground was
composed of rectangular roofs of divers colors,
mostly reddish, ornamented with eccentrically
shaped chimney pots, pent-houses, skylights and
water tanks, in addition to various curious whistle-
like protuberances from which white wraiths of
steam whirled and danced in the gay breeze. Be-
yond, in the middle distance, a great highway of
sparkling jewels led across the waves to the distant
faintly green hills of Staten Island. Three tiny
aeroplanes wove invisible threads against the blue
woof of the sky above the New Jersey shore. It
was not a day to practise law at all. It was a day
to lie on one's back in the grass and watch the
clouds or throw one's weight against the tugging
helm of a racing sloop and bite the spindrift blown
across her bows—not a day for lawyers but for
lovers!
“Here's '76 Fed.'," said Tutt.
115


Tutt and Mr. Tutt
“What's become of Sorg?”
“Gone. Mad. Says the whole point of the Fat
and Skinny Club is in the name."
“I fancy–from looking at Mr. Sorg—that that
is quite true," remarked Mr. Tutt. He paused
and reaching down into a lower compartment of
his desk, lifted out a tumbler and his bottle of malt
extract, which he placed carefully at his elbow
and leaned back again contemplatively. “Look
here, Tutt," he said. "I want to ask you some-
thing. Is there anything the matter with you?”
Tutt regarded him with the air of a small boy
caught peeking through a knot hole.
"Why,—no!" he protested lamely. “That is—
nothing in particular. I do feel a bit restless~
sort of vaguely dissatisfied.”
Mr. Tutt nodded sympathetically.
“How old are you,
Tutt?"
“Forty-eight."
“And you feel just at present as if life were
'flat, stale and unprofitable?'
"Whyyes; you might put it that way. The
fact is every day seems just like every other day.
I don't even get any pleasure out of eating. The
very sight of a boiled egg beside my płate at break-
fast gives me the willies. I can't eat boiled eggs
any more. They sicken me!"
"Exactly!” Mr. Tutt poured out a glass of the
malt extract.
116


Samuel and Delilah
"I feel the same way about a lot of things,”
Tutt hurried on. “Special demurrers, for instance.
They bore me horribly. And supplementary pro-
ceedings get most frightfully upon my nerves.'
"Exactly!" repeated Mr. Tutt.
"What do you mean by 'exactly?'” snapped
Tutt.
“You're bored,” explained his partner.
"Rather l" agreed Tutt. “Bored to death. Not
with anything special, you understand; just every-
thing. I feel as if I'd like to do something
deyilish.”
"When a man feels like that he better go to a
doctor," declared Mr. Tutt.
“A doctor!" exclaimed Tutt derisively. "What
good would a doctor do me?”
"He might keep you from getting into trouble."
“Oh, you needn't be alarmed. I won't get into
any trouble.”
"It's the dangerous age,” said Mr. Tutt. "I've
known a lot of respectable married men to do the
most surprising things round fifty."
Tutt looked interested.
"Have you now?” he inquired. “Well, I've no
doubt it did some of 'em a world of good. Tell
you frankly sometimes I feel as if I'd rather like
to take a bit of a fling myself !”
"Your professional experience ought to be
enough to warn you of the dangers of that sort of
117


Tutt and Mr. Tutt
experiment,” answered Mr. Tutt gravely. “It's
bad enough when it occurs inadvertently, so to
speak, but when a man in your condition of life
deliberately goes out to invite trouble it's a sad,
sad spectacle."
“Do you mean to imply that I'm not able to
take care of myself?” demanded Tutt.
"I mean to imply that no man is too wise to
be made a fool of by some woman.
"That every Samson has his Delilah ?”
"If you want to put it that way-yes.'
“And that in the end he'll get his hair cut?"
Mr. Tutt took a sip from the tumbler of malt
and relit his stogy.
"What do you know about Samson and Delilah,
Tutt?” he challenged.
"Oh, about as much as you do, I guess, Mr.
Tutt," answered his partner modestly.
"Well, who cut Samson's hair?" demanded the
senior member.
He emptied the dregs of the malt-extract bottle
into his glass and holding it to the light examined
it critically.
“Delilah, of course!" ejaculated Tutt.
Mr. Tutt shook his head.
"There you go off at half-cock again, Tuttl"
he retorted whimsically. “You wrong her. She
did no such thing.'
118


Samuel and Delilah
"Why, I'll bet you a hundred dollars on it!"
cried Tutt excitedly.
“Make it a simple dinner at the Claridge Grill
and I'll go you."
"Done!”
There were four books on the desk near Mr.
Tutt's right hand—the New York Code of Civil
Procedure, an almanac, a Shakesperean concord-
ance and a Bible.
"Look it up for yourself,” said Mr. Tutt, wav-
ing his arm with a gesture of the utmost impartial-
ity. “That is, if you happen to know in what part
of Holy Writ said Delilah is to be found.”
Tutt followed the gesture and sat down at the
opposite side of the desk.
“There!” he exclaimed, after fumbling over the
leaves for several minutes. “What did I tell you?
Listen, Mr. Tutt! It's in the sixteenth chapter of
Judges: 'And it came to pass, when she pressed
him daily with her words, and urged him, so that
his soul was vexed unto death; That he told her all
his heart, and said unto her, There hath not come
a razor upon mine head.' Umum."
“Read on, Tutt!" ordered Mr. Tutt.
“Um. And when Delilah saw that he had told
her all his heart, she sent and called for the lords
of the Philistines, saying, Come up this once.'
Um-um.”
119


Tutt and Mr. Tutt
“Yes, go on!"
“ 'And she made him sleep upon her knees; and
she called for a man, and she caused him to shave
off the seven locks of his head.' Well, I'll be
hanged !” exclaimed Tutt. "Now, I would have
staked a thousand dollars on it. But look here,
you don't win! Delilah did cut Samson's hair-
through her agent. 'Qui facit per alium facit
per se!! »
"Your point is overruled,” said Mr. Tutt. “A
barber cut Samson's hair. Let it be a lesson to you
never to take anything on hearsay. Always look
up your authorities yourself. Moreover"-and
he looked severely at Tutt—“the cerebral fluid-
like malt extract—tends to become cloudy with
age."
"Well, anyhow, I'm no Samson,” protested
Tutt. "And I haven't met anyone that looked like
a Delilah. I guess after the procession of adven-
turesses that have trailed through this office in the
last twenty years I'm reasonably safe.”
“No man is safe," meditated Mr. Tutt. “For
the reason that no man knows the
expan-
sion of his heart. He thinks it's reached its limit
—and then he finds to his horror or his delight
that it hasn't. To put it another way, a man's
capacity to love may be likened to a thermometer.
At twenty-five or thirty he meets some young per-
power of
120


Tutt and Mr. Tutt
"But I think her case is more in your line," and
she nodded to Tutt.
“Good looking ?” inquired Tutt roguishly.
"Very," returned Miss Wiggin. “A blonde."
“Thanks,” answered Tutt, smoothing his hair;
“I'm on my way.
Now this free, almost vulgar manner of speech
was in reality foreign to both Tutt and Miss Wig-
gin and it was born of the instant, due doubtless
to some peculiar juxtaposition of astral bodies in
Cupid's horoscope unknown to them, but which
none the less had its influence. Strange things hap-
pen on the eve of St. Agnes and on Midsummer
Night-even in law offices.
Mrs. Allison was sitting by the window in Tutt's
office when he came in, and for a full minute he
paused upon the threshold while she pretended she
did not know that he was there. The deluge of
sunlight that fell upon her face betrayed no crack
or wrinkle—no flaw of any kind in the white
marble of its perfection. It was indeed a lovely
face, classic in the chiseling of its transparent ala-
baster; and when she turned, her eyes were like
misty lakes of blue. Bar none, she was the most
beautiful creature—and there had been many-
that had ever wandered into the offices of Tutt
& Tutt. He sought for a word. “Wonderful”;
that was it, she was "wonderful." His stale spirit
122


Samuel and Delilah
soared in ecstasy, and left him tongue-tied. In
vulgar parlance he was rattled to death, this com-
monplace little lawyer who for a score of years had
dealt cynically with the loves and lives of the flock
of female butterflies who fluttered annually in and
out of the office. Throughout that period he had
sat unemotionally behind his desk and listened in
an aloof, cold, professional manner to the stories
of their wrongs as they sobbed or hissed them
forth. Wise little lawyer that he was, he had re-
garded them all as just what they were and nothing
else-specimens of the Cecropia. And he had not
even patted them upon the shoulder or squeezed
their hands when he had bade them good-by~
maintaining always an impersonal and dignified
demeanor.
Therefore he was surprised to hear himself say
in soothing, almost cooing tones :
"Well, my dear, what can I do for you?”
Shades of Abigail! "Well, my dear!”. Tutt
Tutt! Tutt!
“I am in great trouble,” faltered Mrs. Allison,
gazing in misty helplessness out of her blue grottoes
at him while her beautiful red lips trembled.
"I hope I can help you!” he breathed. “Tell
me all about it! Take your time. May I relieve
your wrap ?”
She wriggled out of it gratefully and he saw,
you of
123


Tutt and Mr. Tutt
for the first time the round, slender pillar of her
neck. What a head she had-in its nimbus of
hazy gold. What a figure! His forty-eight-year-
old lawyer's heart trembled under its heavy layer
of half-calf dust. He found difficulty in articulat-
ing. He stammered, staring at her most shame-
lessly, both of which symptoms she did not
notice. She was used to them in the other sex.
Tutt did not know what was the matter with him.
He had in fact entered upon that phase at which
the wise man, be he old or young, turns and runs.
But Tutt did not run. In legal phrase he
stopped, looked and listened, experiencing a curious
feeling of expansion. This enchanting creature
transmuted the dingy office lined with its rows of
calfskin bindings into a golden grot in which he
stood spellbound by the low murmur of her voice.
A sense of infinite leisure emanated from her-a
subtle denial of the ordinary responsibilities—very
relaxing and delightful to Tutt. But what twitched
his very heartstrings was the dimple that came and
went with that pathetic little twisted smile of hers.
“I came to you,” said Mrs. Allison, "because I
knew you were both kind and clever."
Tutt smiled sweetly.
"Kind, perhaps—not clever!” he beamed.
"Why, everyone says you are one of the clever-
est lawyers in New York,” she protested. Then,
124


Tutt and Mr. Tutt
She flushed and bowed her head sadly, and
instantly a poignant rage possessed him.
"A man I trusted absolutely," she replied in a
low voice.
“His name?"
"Winthrop Oaklander."
Tutt gasped audibly, for the name was that of
one of Manhattan's most distinguished families,
the founder of which had swapped glass beads and
red-flannel shirts with the aborigines for what was
now the most precious water frontage in the world
and moreover, Mrs. Allison informed Tutt, he
was a clergyman.
"I don't wonder you're suprised!" agreed Mrs.
Allison.
“Why—1—I'm-not surprised at all !” prevari-
cated Tutt, at the same time groping for his silk
handkerchief. “You don't mean to say you've got
a case against this man Oaklander!"
“I have indeed!” she retorted with firmly com-
pressed lips. “That is, if it is what you call a
case for a man to promise to marry a woman and
then in the end refuse to do so."
"Of course it is !” answered Tutt. "But why
on earth wouldn't he?"
"He found out I had been divorced," she ex-
plained. “Up to that time everything had been
lovely. You see he thought I was a widow."
“Ah!"
126



“I have indeed! that is, if it is what you call a case for a man to promise to marry a woman and
then refuse to do so


Samuel and Delilah
Mr. Tutt experienced another pang of resent-
ment against mankind in general.
"I had a leading part in one of the season's
successes on Broadway,” she continued miserably.
“But when Mr. Oaklander promised to marry me
I left the stage; and now-I have nothing!"
"Poor child!" sighed Tutt.
He would have liked to take her in his arms and
comfort her, but he always kept the door into the
outer office open on principle.
"You know, Mr. Oaklander is the pastor of St.
Lukes-Over-the-Way,” said Mrs. Allison. "I
thought that maybe rather than have any publicity
he might do a little something for me.”
"I suppose you've got something in the way of
evidence, haven't you? Letters or photographs or
something?" inquired Tutt, reverting absent-
mindedly to his more professional manner.
"No," she answered. “We never wrote to one
another. And when we went out it was usually
in the evening. I don't suppose half a dozen
people have ever seen us together."
“That's awkward!" meditated Tutt, “if he
denies it."
"Of course he will deny it !"
"You can't tell. He may not."
"Oh, yes, he will! Why, he even refuses to
admit that he ever met mel” declared Mrs. Allison
indignantly.
127


Tutt and Mr. Tutt
more cordial terms with her, and the lunches
became longer and more intimate.
The Reverend Winthrop Oaklander gave no
sign of life, however. The customary barrage of
legal letters had been laid down, but without elicit-
ing any response. The Reverend Winthrop must
be a wise one, opined Tutt, and he began to have
a hearty contempt as well as hatred for his quarry.
The first letter had been the usual vague hint that
the clergyman might and probably would find it
to his advantage to call at the offices of Tutt &
Tutt, and so on. The Reverend Winthrop, how-
ever, did not seem to care to secure said advantage
whatever it might be. The second epistle gave the
name of the client and proposed a friendly discus-
sion of her affairs. No reply. The third hinted at
legal proceedings. Total silence. The fourth de-
manded ten thousand dollars damages and threat-
ened immediate suit.
In answer to this last appeared the Reverend
Winthrop himself. He was a fine-looking young
chap with a clear eye—almost as blue as Georgie's
-and a skin even pinker than hers, and he stood
six feet five in his Oxfords and his fist looked to
Tutt as big as a coconut.
"Are you the blackmailer who's been writing
me those letters ?” he demanded, springing into
Tutt's office. “If you are, let me tell you some-
130


Samuel and Delilah
thing. You've got hold of the wrong monkey.
I've been dealing with fellows of your variety ever
since I got out of the seminary. I don't know
the lady you pretend to represent, and I never
heard of her. If I get any more letters from you
I'll go down and lay the case before the district
attorney; and if he doesn't put you in jail I'll come
up here and knock your head off. Understand?
Good day!”
At
any other period in his existence Tutt could
not have failed to be impressed with the honesty
of this husky exponent of the church militant, but
he was drugged as by the drowsy mandragora.
The blatant defiance of this muscular preacher out-
raged him. This canting hypocrite, this wolf in
priest's clothing must be brought to book. But
how? Mrs. Allison had admitted the literal truth
when she had told him that there were no letters,
no photographs. There was no use commencing
an action for breach of promise if there was no
evidence to support it. And once the papers were
filed their bolt would have been shot. Some way
must be devised whereby the Reverend Winthrop
Oaklander could be made to perceive that Tutt &
Tutt meant business, and—equally imperative
whereby Georgie would be impressed with the fact
that not for nothing had she come to them—that
is, to him—for help.
131


Tutt and Mr. Tutt
The fact of the matter was that the whole thing
had become rather hysterical. Tutt, though hav-
ing nothing seriously to reproach himself with, was
constantly haunted by a sense of being rather ridicu.
lous and doing something behind his wife's back.
He told himself that his Platonic regard for Geor-
gie was a noble thing and did him honor, but it
was an honor which he preferred to wear as an
entirely private decoration. He was conscious of
being laughed at by Willie and Scraggs and disap-
proved of by Miss Wiggin, who was very snippy
to him. And in addition there was the omnipresent
horror of having Abigail unearth his philandering.
He now not only thought of Mrs. Allison as Geor-
gie, but addressed her thus, and there was quite a
tidy little bill at the florist's for flowers that he had
sent her. In one respect only did he exhibit even
the most elementary caution—he wrote and signed
all his letters to her himself upon the typewriter,
and filed copies in the safe.
“So there we are !” he sighed as he gave to Mrs.
Allison a somewhat expurgated, or rather emascu-
lated, version of the Reverend Winthrop's visit.
"We have got to hand him something hot or make
up our minds to surrender. In a word we have
got to scare him-Georgie.”
And then it was that, like the apocryphal mos-
quito, the Fat and Skinny Club justified its
132


Samuel and Delilah
atteinpted existence. For the indefatigable Sorg
made an unheralded reappearance in the outer
office and insisted upon seeing Tutt, loudly assert-
ing that he had reason to believe that if a new appli-
cation were now made to another judge—whom he
knew-it would be more favorably received. Tutt
went to the doorway and stood there barring the
entrance and expostulating with him.
"All right!" shouted Sorg. “All right! I hear
you! But don't tell me that a man named Solo-
mon Swackhamer can change his name to Phillips
Brooks Vanderbilt and in the same breath a reput-
able body of citizens be denied the right to call
themselves what they please!”
“He don't understand !” explained Tutt to
Georgie, who had listened with wide, dreamy eyes.
“He don't appreciate the difference between doing
a thing as an individual and as a group.”
“What thing?”
“Why, taking a name.'
“I don't get you,” said Georgie.
"Sorg wanted to call his crowd the Fat and
Skinny Club, and the court wouldn't let him—
thought it was silly."
“Well?"
“But he could have called himself Mr. Fat or
Mr. Skinny or Mr. Anything Else without having
to ask anybody Oh, I say !"
133


Tutt and Mr. Tutt
Tutt had stiffened into sculpture.
"What is it?" demanded Georgie fascinated.
"I've got an idea,” he cried. “You can call
yourself anything you like. Why not call yourself
Mrs. Winthrop Oaklander ?”
"But what good would that do?" she asked
vaguely.
“Look here!" directed Tutt. “This is the surest
thing you know! Just go up to the Biltmore
and register as Mrs. Winthrop Oaklander. You
have a perfect legal right to do it. You could call
yourself Mrs. Julius Cæsar if you wanted to. Take
a room and stay there until our young Christian
soldier offers you a suitable inducement to move
along. Even if you're violating the law somehow
his first attempt to make trouble for you will bring
about the very publicity he is anxious to avoid.
Why, it's marvelous—and absolutely safe? They
can't touch you. He'll come across inside of two
hours. If he doesn't a word to the reporters will
start things in the right direction."
For a moment Mrs. Allison looked puzzled.
Then her beautiful face broke into an enthusiastic
classic smile and she laid her little hand softly on
his arm.
"What a clever boy you are-Sammy!”
A subdued snigger came from the direction of
the desk usually occupied by William. Tutt
134


Tutt and Mr. Tutt
the careful enunciation of a New England school-
mistress.
"What five thousand dollars ?"
"The five you're going to hand me before I
leave this office, Sammy darling," she retorted
dazzlingly.
Tutt's head swam and he sank weakly into his
swivel chair. It was incredible that he, a veteran
of the criminal bar, should have been so tricked.
Instantly, as when a reagent is injected into a
retort of chemicals and a precipitate is formed leav-
ing the previously cloudy liquid like crystal, Tutt's
addled brain cleared. He was caught! The vic-
tim of his own asininity. He dared not look at
this woman who had wound him thus round her
finger, innocent as he was of any wrongdoing; he
was ashamed to think of his wife.
"My Lord!” he murmured, realizing for the
first time the depth of his weakness.
"Oh, it isn't as bad as that!" she laughed. “Re-
member you were going to charge Oaklander ten
thousand. This costs you only five. Special rates
for physicians and lawyers !"
"And suppose I don't choose to give it to you ?"
he asked.
“Listen here, you funny little man!” she an-
swered in caressing tones that made him writhe.
“You'd stand for twenty if I insisted on it. Oh,
136


Samuel and Delilah
don't jump! I'm not going to. You're getting
off easy—too easy. But I want to stay on good
terms with you.
I may need you sometime in my
business. Your certified check for five thousand
dollars—and I leave you."
She struck a match and started to light a tiny,
gold-tipped cigarette.
"Don't!" he gasped. "Not in the office."
"Do I get the five thousand ?”
He ground his teeth, not yet willing to concede
defeat.
"You silly old bird!" she said. “Do you know
how many times you've had me down here in your
office in the last three weeks? Fifteen. How many
times you've taken me out to lunch? Ten. How
often you've called me on the telephone? Eighty-
nine! How many times you've sent me flowers?
Twelve. How many letters you've written me?
Eleven! Oh, I realize they're typewritten, but a
photograph enlargement would show they were
typed in your office. Every typewriter has its own
individuality, you know. Your clerks and office
boy have heard mc call you Sammy. Why, every
time you've moved with me beside you someone
has seen you. That's enough, isn't it? But now,
on top of all that, you go and hand me exactly
what I need on a gold plate."
He gazed at her stupidly.
137


Tutt and Mr. Tutt
"Why, if now you don't give me that check I
shall simply go up to the Biltmore and register as
Mrs. Samuel Tutt. I shall take a room and stay
there until you offer me a proper inducement to
move on.” She giggled delightedly. “It's mar-
velous—absolutely safe,” she quoted. “They can't
touch me. You'll come across inside of two hours.
If you don't a word to the reporters will start
things in the right direction."
“Don't!" he groaned. “I must have been crazy.
That was simply blackmail !”
"That's exactly what it was !" she agreed.
"There aren't any letters except these typewritten
ones, or photographs, or any evidence at all, but
you're going to give me five thousand dollars just
the same. Just so that your wife won't know what
a silly old fool you've been. Where's your check
book, Sam?”
Tutt pulled out the bottom drawer of his desk
and slowly removed his personal check book. With
his fountain pen in his hand he paused and looked
at her.
"Rather than give you another cent I'd stand
the gaff," he remarked defiantly.
“I know it," she answered. "I looked you up
before I came here the first time. You are good
for exactly five thousand dollars."
Tutt filled out the check to cash and sent Willie
138


Samuel and Delilah
across the street to the bank to have it certified.
The sun was just sinking over the Jersey shore be-
yond the Statue of Liberty and the surface of the
harbor undulated like iridescent watered silk. The
clouds were torn into golden-purple rents, and the
air was so clear that one could look down the
Narrows far out to the open sca. Standing there
by the window Mrs. Allison looked as innocently
beautiful as the day Tutt had first beheld her.
After all, he thought, perhaps the experience had
been worth the money.
Something of the same thought may have oc-
curred to the lady, for as she took the check and
carefully examined the certification she remarked
with a distinct access of cordiality: "Really,
Sammy, you're quite a nice little man. I rather
like you."
Tutt stood after she had gone watching the sun-
set until the west was only a mass of leaden shad-
ows. Then, strangely relieved, he took his hat
and started out of the office. Somewhat to his
surprise he found Miss Wiggin still at her desk.
“By the way,” she remarked casually as he
passed her, "what shall I charge that check to?
The one you just drew to cash for five thousand
dollars ?”
“Charge it to life insurance," he said shortly.
He felt almost gay as he threaded his way,
139


Tutt and Mr. Tutt
through the crowds along Broadway. Somehow a
tremendous load had been lifted from his shoul-
ders. He would no longer be obliged to lead a
sneaking, surreptitious existence. He felt like
shouting with joy now that he could look the world
frankly in the face. The genuine agony he had
endured during the past three weeks loomed like
a sickness behind him. He had been a fool-and
there was no fool like an old one. Just let him
get back to his old Abigail and there'd be no more
wandering-boy business for him! Abigail might
not have the figure or the complexion that Georgie
had, but she was a darn sight more reliable. Hence-
forth she could have him from five p. m. to nine
a. m. without reserve. As for kicking over the
traces, sowing wild oats and that sort of thing,
there was nothing in it for him. Give him Friend
Wife.
He stopped at the florist's and, having paid a
bill of thirty-six dollars for Georgie's flowers, pur-
chased a double bunch of violets and carried them
home with him. Abigail was watching for him
out of the window. Something warm rushed to
his heart at the sight of her. Through the lace
curtains she looked quite trim.
“Hello, old girl!” he cried, as she opened the
door. “Waiting for me, eh? Here's a bunch of
posies for you.
And he kissed her on the cheek.
140


Tutt and Mr. Tutt
tently. And just then the beautiful woman turned
and, catching sight of the Tutts, smiled cordially
if somewhat roguishly and raised her glass, as did
her companion. Mechanically Tutt elevated his.
The three drank to one another.
"Do you know those people, Samuel ?" inquired
Mrs. Tutt somewhat stiffly. "Who are they?”
"Oh, those over there?” he repeated absently.
“I don't really know what the lady's name is, she's
been down to our office a few times. But the man
is Winthrop Oaklander-and the funny part of it
is, I always thought he was a clergyman.”
Later in the evening he turned to her between
the acts and remarked inconsequently: "Say, Abbie,
do I look as if I'd just had my.
hair cut?"
142


Tutt and Mr. Tutt
perhaps akin to that exerted for one another by
celestial bodies of great mass, for it is a fact that
stout people do gravitate toward one another-
and hang or float in placid juxtaposition, perhaps
merely as a physical result of their avoirdupois.
So Appleboy and Tunnygate had swum into each
other's spheres of influence, either blown by the
dallying winds of chance or drawn by some mysteri-
ous animal magnetism, and, being both addicted
to the delights of the soporific sport sanctified by
Izaak Walton, had raised unto themselves portable
temples upon the shores of Long Island Sound in
that part of the geographical limits of the Greater
City known as Throggs Neck.
Every morn during the heat of the summer
months Appleboy would rouse Tunnygate or con-
versely Tunnygate would rouse Appleboy, and
each in his own wobbly skiff would row out to the
spot which seemed most propitious to the pisca-
torial art. There, under two green umbrellas, like
two fat rajahs in their shaking howdahs upon the
backs of two white elephants, the friends would
sit in solemn equanimity awaiting the evasive cun-
ner, the vagrant perch or cod or the occasional
flirtatious eel. They rarely spoke and when they
did the edifice of their conversation—their Tower
of Babel, so to speak—was monosyllabic. Thus :
“Huh! Ain't had a bite !"
144


The Dog Andrew
“Huh?
“Huh!"
Silence for forty minutes. Then: "Huh! Had
a bite?"
"Nope!"
"Huh!"
That was generally the sum total of their inter-
change. Yet it satisfied them, for their souls were
in harmony. To them it was pregnant of unutter-
able meanings, of philosophic mysteries more subtle
than those of the esoterics, of flowers and poetry,
of bird-song and twilight, of all the nuances of
softly whispered avowals, of the elusive harmonies
of love's half-fainting ecstasy.
"Huh!"
"Huh!”
And then into this Eden-only not by virtue of
the excision of any vertebra such as was originally
necessary in the case of Adam—burst woman.
There was silence no longer. The air was rent
with clamor; for both Appleboy and Tunnygate,
within a month of one another, took unto them-
selves wives. Wives after their own image!
For a while things went well enough; it takes
ladies a few weeks to find out each other's weak
points. But then the new Mrs. Tunnygate unex-
pectedly yet undeniably began to exhibit the ser-
pent's tooth, the adder's tongue or the cloven hoof
145


Tutt and Mr. Tutt
-as the reader's literary traditions may
lead him
to prefer. For no obvious reason at all she con-
ceived a violent hatred of Mrs. Appleboy, a hatred
that waxed all the more virulent on account of its
object's innocently obstinate refusal to comprehend
or recognize it. Indeed Mrs. Tunnygate found it
so difficult to rouse Mrs. Appleboy into a state of
belligerency sufficiently interesting that she soon
transferred her energies to the more worthy task
of making Appleboy's life a burden to him.
To this end she devoted herself with a truly
Machiavellian ingenuity, devising all sorts of in-
sults, irritations and annoyances, and adding to the
venom of her tongue the inventive cunning of a
Malayan witch doctor. The Appleboys' flower-
pots mysteriously fell off the piazza, their thole-
pins disappeared, their milk bottles vanished, Mr.
Appleboy's fish lines acquired a habit of derange-
ment equaled only by barbed-wire entanglements,
and his clams went bad! But these things might
have been borne had it not been for the crowning
achievement of her malevolence, the invasion of
the Appleboys' cherished lawn, upon which they
lavished all that anxious tenderness which other-
wise they might have devoted to a child.
It was only about twenty feet by twenty, and
it was bordered by a hedge of moth-eaten privet,
but anyone who has ever attempted to induce a
146


Tutt and Mr. Tutt
pointed out, a perfect legal right to push his way
through the hedge and tramp across the lawn, and
she didn't propose to allow the Appleboys to gain
any rights by proscription, either. Not much!
Therefore, when Mr. Appleboy addressed to
Mr. Tunnygate the remarks with which this story
opens, the latter insolently replied in words, form
or substance that Mr. Appleboy could go to hell.
Moreover, as he went by Mr. Appleboy he took
pains to kick over a clod of transplanted sea grass,
nurtured by Mrs. Appleboy as the darling of her
bosom, and designed to give an air of verisimili-
tude to an otherwise bare and unconvincing surface
of sand. Mr. Appleboy almost cried with vexation.
"Oh!” he ejaculated, struggling for words to
express the full content of his feeling. "Gosh, but
you're—mean!”
He hit it! Curiously enough, that was exactly
the word! Tunnygate was mean—and his mean-
ness was second only to that of the fat hippo-
potama, his wife.
Then, without knowing why, for he had no
formulated ideas as to the future, and probably
only intended to try to scare Tunnygate with vague
threats, Appleboy added: "I warn you not to go
through that hedge again! Understand—I warn
you! And if you do I won't be responsible for the
consequences !”
148


The Dog Andrew
He really didn't mean a thing by the words, and
Tunnygate knew it.
"Huh!' retorted the latter contemptuously.
"You !"
Mr. Appleboy went inside the shack and banged
the door. Mrs. Appleboy was peeling potatoes
in the kitchen-living room.
“I can't stand it!” he cried weakly. "He's
driving me wild!"
“Poor lamb!” soothed Mrs. Appleboy, peeling
an interminable rind. “Ain't that just a sweetie?
Look! It's most as long as your arm!"
She held it up dangling between her thumb and
fore-finger. Then, with a groan she dropped it at
his feet. "I know it's a real burden to you, deary !"
she sighed.
Suddenly they both bent forward with startled
eyes, hypnotized by the peel upon the floor.
Unmistakably it spelt “dog"! They looked at
one another significantly.
"It is a symbol!” breathed Mrs. Appleboy in an
awed whisper.
“Whatever it is, it's some grand idea !” ex-
claimed her husband. “Do you know anybody
who's got one? I mean a-a-
“I know just what you mean," she agreed. “I
wonder we never thought of it before! But there
wouldn't be any use in getting any dog!"
149


Tutt and Mr. Tutt
"Oh, no!” he concurred. “We want a real-
dog!"
one.
"One you know about!" she commented.
“The fact is,” said he, rubbing his forehead,
“if they know about 'em they do something to 'em.
It ain't so easy to get the right kind."
"Oh, we'll get one !" she encouraged him.
"Now Aunt Eliza up to Livornia used to have
It made a lot of trouble and they ordered
her—the selectmen did—to do away with it. But
she only pretended she had—she didn't really-
and I think she's got him yet.
“Gee!" said Mr. Appleboy tensely. “What sort
was it?"
“A bull!" she replied. "With a big white face.”
“That's the kind !” he agreed excitedly. "What
was its name?”
"Andrew," she answered.
"That's a queer name for a dog!” he com-
mented. "Still, I don't care what his name is, so
long as he's the right kind of dog! Why don't
you write to Aunt Eliza to-night?"
"Of course Andrew may be dead," she hazarded.
“Dogs do die.”
“Oh, I guess Andrew isn't dead I” he said hope-
fully. "That tough kind of dog lasts a long time.
What will you say to Aunt Eliza ?”
Mrs. Appleboy went to the dresser and took a
pad and pencil from one of the shelves.
150


The Dog Andrew
"Oh, something like this,” she answered, poising
the pencil over the pad in her lap:
“Dear Aunt Eliza: I hope you are quite well.
It is sort of lonely living down here on the beach
and there are a good many rough characters, so we
are looking for a dog for companionship and pro-
tection. Almost any kind of healthy dog would
do and you may be sure he would have a good
home. Hoping to see you soon. Your affectionate
niece, Bashemath."
"I hope she'll send us Andrew,” said Appleboy
fervently.
"I guess she will!” nodded Bashemath.
"What on earth is that sign?” wrathfully 'de-
manded Mrs. Tunnygate one morning about a
week later as she looked across the Appleboys'
lawn from her kitchen window. "Can you read
it, Herman?"
Herman stopped trying to adjust his collar and
went out on the piazza.
“Something about 'dog'," he declared finally.
"Dog!" she exclaimed. “They haven't got a
dog!"
“Well," he remarked, "that's what the sign
says: 'Beware of the dog'! And there's something
above it. Oh! 'No crossing this property.
Tres-
passing forbidden.'”
"What impudence !" avowed Mrs. Tunnygate.
151


Tutt and Mr. Tutt
"Did you ever know such people! First they try
and take land that don't belong to them, and then
they go and lie about having a dog. Where are
they, anyway?"
“I haven't seen 'em this morning,” he answered.
“Maybe they've gone away and put up the sign
so we won't go over. Think that'll stop us !"
“In that case they've got another think comin'!”
she retorted angrily. “I've a good mind to have
you go over and tear up the whole place !”
“ 'N pull up the hedge?” he concurred eagerly.
“Good chance!"
Indeed, to Mr. Tunnygate it seemed the supreme
opportunity both to distinguish himself in the eyes
of his blushing bride and to gratify that perverse
instinct inherited from our cave-dwelling ancestors
to destroy utterly-in order, perhaps, that they
may never seek to avenge themselves upon us—
those whom we have wronged. Accordingly Mr.
Tunnygate girded himself with his suspenders, and
with a gleam of fiendish exultation in his eye
stealthily descended from his porch and crossed
to the hole in the hedge. No one was in sight
except two barefooted searchers after clams a few
hundred yards farther up the beach and a man
working in a field half a mile away. The bay
shimmered in the broiling August sun and from a
distant grove came the rattle and wheeze of locusts.
152


The Dog Andrew
A fierce rage
Throggs Neck blazed in silence, and utterly silent
was the house of Appleboy.
With an air of bravado, but with a slightly,
accelerated heartbeat, Tunnygate thrust himself
through the hole in the hedge and looked scorn-
fully about the Appleboy lawn.
worked through his veins. A lawn! What ef.
frontery! What business had these condescending
second-raters to presume to improve a perfectly
good beach which was satisfactory to other folks ?
He'd show 'em! He took a step in the direction
of the transplanted sea grass. Unexpectedly the
door of the Appleboy kitchen opened.
"I warned you !" enunciated Mr. Appleboy with
unnatural calmness, which with another back-
ground might have struck almost anybody as
suspicious.
"Huh!" returned the startled Tunnygate, forced
under the circumstances to assume a nonchalance
that he did not altogether feel. “You !"
"Well,” repeated Mr. Appleboy. “Don't ever,
say I didn't!”
“Pshaw!" ejaculated Mr. Tunnygate disdain-
fully.
With premeditation and deliberation, and with
undeniable malice aforethought, he kicked the near-
est bunch of sea grass several feet in the air. His
violence carried his leg high in the air and he
153


Tutt and Mr. Tutt
partially lost his equilibrium. Simultaneously a
white streak shot from beneath the porch and
something like a red-hot poker thrust itself savagely
into an extremely tender part of his anatomy.
“Ouch! 0-0-oh!” he yelled in agony.
“Oh!"
“Come here, Andrew !” said Mr. Appleboy
mildly. "Good doggy! Come here !"
But Andrew paid no attention. He had firmly
affixed himself to the base of Mr. Tunnygate's
personality without
any intention of being immedi-
ately detached. And he had selected that place,
taken aim, and discharged himself with an air of
confidence and skill begotten of lifelong experience.
“Oh! 0-o-oh!" screamed Tunnygate, turn-
ing wildly and clawing through the hedge, drag-
ging Andrew after him. “Oh! O-oh!"
Mrs. Tunnygate rushed to the door in time to
her spouse lumbering up the beach with a white
object gyrating in the air behind him.
“What's the matter?" she called out languidly.
Then perceiving the matter she hastily followed.
The Appleboys were standing on their lawn view-
ing the whole proceeding with ostentatious
indifference.
Up the beach fled Tunnygate, his cries becoming
fainter and fainter. The two clam diggers watched
him curiously, but made no attempt to go to his
see
154


Tutt and Mr. Tutt
"Put your coat on, then, and come along,"
directed the other. “I've got a warrant for you.
“Warrant?" stammered Appleboy dizzily.
"What's that?” cried Bashemath, appearing at
the door. “Warrant for what?"
The officer slowly descended and handed Apple-
boy a paper.
“For assault,” he replied. "I guess you know
what for, all right!"
“We haven't assaulted anybody," protested Mrs.
Appleboy heatedly. "Andrew-
"You can explain all that to the judge," retorted
the cop. “Meantime put on your duds and climb
in. If you don't expect to spend the night at the
station you'd better bring along the deed of
your
house so you can give bail.”
"But who's the warrant for?” persisted Mrs.
Appleboy.
“For Enoch Appleboy," retorted the cop
wearily. “Can't
you
read?”
"But Enoch didn't do a thing !" she declared.
"It was Andrew !"
“Who's Andrew ?” inquired the officer of the
law mistrustfully.
"Andrew's a dog," she explained.
"Mr. Tutt,” announced Tutt, leaning against
his senior partner's door jamb with a formal-look-
156


The Dog Andrew
99
ing paper in his hand, “I have landed a case that
will delight your legal soul.”
“Indeed?” queried the elder lawyer. "I have
never differentiated between my legal soul and any,
other I may possess. However, I assume from
your remark that we have been retained in a matter
presenting some peculiarly absurd, archaic or other-
wise interesting doctrine of law ?"
"Not directly,” responded Tutt. “Though you
will doubtless find it entertaining enough, but indi-
rectly—atmospherically, so to speak—it touches
upon doctrines of jurisprudence, of religion and of
philosophy, replete with historic fascination."
“Good !” exclaimed Mr. Tutt, laying down his
stogy. "What kind of a case is it?"
"It's a dog casel" said the junior partner, wav-
ing the paper. "The dog bit somebody."
“Ah!" exclaimed Mr. Tutt, perceptibly bright-
ening. "Doubtless we shall find a precedent in
Oliver Goldsmith's famous elegy:
“And in that town a dog was found,
As many dogs there be,
Both mongrel, puppy, whelp, and hound,
And curs of low degree."
"Only," explained Tutt, "in this case, though the
man recovered of the bite, the dog refused to die!"
"And so they want to prosecute the dog? It
157


The Dog Andrew
And on
"Why, of course they were !” said Mr. Tutt.
"Why shouldn't they be? If animals have souls
why shouldn't they be responsible for their acts ?”
“But they haven't any
souls !” protested Tutt.
"Haven't they now?” remarked the elder law-
yer. “I've seen many an old horse that had a great
deal more conscience than his master.
general principles wouldn't it be far more just and
humane to have the law deal with a vicious animal
that had injured somebody than to leave its punish-
ment to an irresponsible and arbitrary owner who
might be guilty of extreme brutality?”
“If the punishment would do any good—yes !”
agreed Tutt.
"Well, who knows?" meditated Mr. Tutt. "I
wonder if it ever does any good? But anybody
would have to agree that responsibility for one's
acts should depend upon the degree of one's intelli-
gence—and from that point of view many of our
friends are really much less responsible than
sheep."
“Which, as you so sagely point out, would, how-
ever, be a poor reason for letting their families
punish them in case they did wrong. Just think
how such a privilege might be abused! If Uncle
John didn't behave himself as his nephews thought
proper they could simply set upon him and briskly
beat him up."
159


Tutt and Mr. Tutt
"Yes, of course, the law even to-day recognizes
the right to exercise physical discipline within the
family. Even homicide is excusable, under Section
1054 of our code, when committed in lawfully
correcting a child or servant.
"That's a fine relic of barbarism !" remarked
Tutt. "But the child soon passes through that dan-
gerous zone and becomes entitled to be tried for
his offenses by a jury of his peers; the animal never
does."
"Well, an animal couldn't be tried by a jury
of his peers, anyhow," said Mr. Tutt.
"I've seen juries that were more like nanny goats
than men!" commentated Tutt. "I'd like to see
some of our clients tried by juries of geese or
woodchucks."
“The field of criminal responsibility is the No
Man's Land of the law," mused Mr. Tutt.
"Roughly, mental capacity to understand the na-
ture of one's acts is the test, but it is applied
arbitrarily in the case of human beings and a mere
point of time is taken beyond which, irrespective
of his actual intelligence, a man is held accountable
for whatever he does. Of course that is theoretic-
ally unsound. The more intelligent a person is the
more responsible he should be held to be and the
higher the quality of conduct demanded of him by
his fellows. Yet after twenty-one all are held
160


The Dog Andrew
equally responsible—unless they're actually insane.
It isn't equity! In theory no man or animal should
be subject to the power of discretionary punishment
on the part of another-even his own father or
master. I've often wondered what earthly right
we have to make the animals work for us to bind
them to slavery when we denounce slavery as a
crime. It would horrify us to see a human being
put up and sold at auction. Yet we tear the families
of animals apart, subject them to lives of toil, and
kill them whenever we see fit. We say we do this
because their intelligence is limited and they cannot
exercise any discrimination in their conduct, that
they are always in the zone of irresponsibility and
so have no rights. But I've seen animals that were
shrewder than men, and men who were vastly less
intelligent than animals.”
“Right-o!" assented Tutt. "Take Scraggs, for:
instance. He's no more responsible than a chip-
munk."
"Nevertheless, the law has always been consist-
ent," said Mr. Tutt, "and has never discriminated
between animals any more than it has between men
on the ground of varying degrees of intelligence,
They used to try 'em all, big and little, wild and
domesticated, mammals and invertebrates."
"Oh, come !" exclaimed Tutt. "I may not know
much law, but-
161


Tutt and Mr. Tutt
“Between 1120 and 1740 they prosecuted in
France alone no less than ninety-two animals. The
last one was a cow."
"A cow hasn't much intelligence," observed Tutt.
"And they tried fleas," added Mr. Tutt.
"They have a lot!" commented his junior part-
ner. “I knew a flea once, who"
“They had a regular form of procedure," con-
tinued Mr. Tutt, brushing the flea aside, “which
was adhered to with the utmost technical accuracy.
You could try an individual animal, either in person
or by proxy, or you could try a whole family, swarm
or herd. If a town was infested by rats, for
example, they first assigned counsel—an advocate,
he was called and then the defendants were sum-
moned three times publicly to appear.
didn't show up on the third and last call they were
tried in absentia, and if convicted were ordered
out of the country before a certain date under
penalty of being exorcised."
"What happened if they were exorcised ?" asked
Tutt curiously.
"It depended a good deal on the local
power
of
Satan,” answered the old lawyer dryly. “Some-
times they became even more prolific and destruc-
tive than they were before, and sometimes they
promptly died. All the leeches were prosecuted
at Lausanne in 1451. A few selected representa-
If they
162


The Dog
Andrew
“Who got
tives were brought into court, tried, convicted and
ordered to depart within a fixed period. Maybe
they didn't fully grasp their obligations or per-
haps were just acting contemptuously, but they
didn't depart and so were promptly exorcised. Im.
mediately they began to die off and before long
there were none left in the country.
“I know some rats and mice I'd like to have
exorcised," mused Tutt.
"At Autun in the fifteenth century the rats won
their case," said Mr. Tutt.
'em o???" asked Tutt.
“M. Chassensée, the advocate appointed to de-
fend them. They had been a great nuisance and
were ordered to appear in court. But none of them
turned up. M. Chassensée therefore argued that
a default should not be taken because all the rats
had been summoned, and some were either so
young or so old and decrepit that they needed more
time. The court thereupon granted him an exten-
sion. However, they didn't arrive on the day set,
and this time their lawyer claimed that they were
under duress and restrained by bodily fear--of
the townspeople's cats. That all these cats, there-
fore, should first be bound over to keep the peace !
The court admitted the reasonableness of this, but
the townsfolk refused to be responsible for their
cats and the judge dismissed the case !"
163


Tutt and Mr. Tutt
“What did Chassensée get out of it?" inquired
Tutt.
“There is no record of who paid him or what
was his fee."
"He was a pretty slick lawyer," observed Tutt.
“Did they ever try birds ?"
"Oh, yes !” answered Mr. Tutt. "They tried a
cock at Basel in 1474—for the crime of laying an
egg.
"Why was that a crime?” asked Tutt. "I
should call it a tour de force.”
"Be that as it may," said his partner, "from a
cock's egg is hatched the cockatrice, or basilisk, the
glance of whose eye turns the beholder to stone.
Therefore they tried the cock, found him guilty
and burned him and his egg together at the stake.
That is why cocks don't lay eggs now.'
"I'm glad to know that,"
” said Tutt. “When
did they give up trying animals ?"
"Nearly two hundred years ago," answered Mr.
Tutt. “But for some time after that they con-
tinued to try inanimate objects for causing injury
to people. I've heard they tried one of the first
locomotives that ran over a man and declared it
forfeit to the crown as a deodand.”
"I wonder if you couldn't get 'em to try An-
drew," hazarded Tutt, "and maybe declare him
forfeited to somebody as a deodand.”
.
164


Tutt and Mr. Tutt
of July, in the year of our Lord one thousand nine
hundred and fifteen, at the Borough and County
aforesaid, with force and arms in and upon one
Herman Tunnygate, in the peace of the State and
People then and there being, feloniously did will-
fully and wrongfully make an assault in and upon
the legs and body of him the said Herman Tunny-
gate, by means of a certain dangerous weapon, to
wit: one dog, of the form, style and breed known
as 'bull,' being of the name of 'Andrew,' then and
there being within control of the said Enoch Apple-
boy, which said dog, being of the name of ‘An-
drew,' the said Enoch Appleboy did then and there
feloniously, willfully and wrongfully incite, pro-
voke, and encourage, then and there being, to bite
him, the said Herman Tunnygate, by means where-
of said dog ‘Andrew' did then and there grievously
bite the said Herman Tunnygate in and upon the
legs and body of him, the said Herman Tunnygate,
and the said Enoch Appleboy thus then and there
feloniously did willfully and wrongfully cut, tear,
lacerate and bruise, and did then and there by the
means of the dog ‘Andrew' aforesaid feloniously,
willfully and wrongfully inflict grievous bodily
harm upon the said Herman Tunnygate, against
the form of the statute in such case made and
provided, and against the peace of the People of
the State of New York and their dignity."
166


The Dog Andrew
سنتی
“That," asserted Mr. Tutt, wiping his spec-
tacles, “is a document worthy of preservation in
the Congressional Library. Who drew it?"
"Don't know," answered Tutt! "but whoever he
was he was a humorist!”
“It's no good. There isn't any allegation of
scienter in it," affirmed Mr. Tutt.
“What of it? It says he assaulted Tunnygate
with a dangerous weapon. You don't have to set
forth that he knew it was a dangerous weapon if
you assert that he did it willfully. You don't have
to allege in an indictment charging an assault with
a pistol that the defendant knew it was loaded."
"But a dog is different !" reasoned Mr. Tutt.
“A dog is not per se a dangerous weapon. Saying
so doesn't make it so, and that part of the indict-
ment is bad on its face-unless, to be sure, it means
that he hit him with a dead dog, which it is clear
from the context that he didn't. The other part
that he set the dog on him—lacks the allegation
that the dog was vicious and that Appleboy knew
it; in other words an allegation of scienter. It
ought to read that said Enoch Appleboy 'well.
knowing that said dog Andrew was a dangerous
and ferocious animal and would, if incited, pro-
voked and encouraged, bite the legs and body of
him the said Herman did then and there feloni-
167


Tutt and Mr. Tutt
ously, willfully and wrongfully incite, provoke and
encourage the said Andrew, and so forth.'"
“I get you!” exclaimed Tatt enthusiastically.
"Of course an allegation of scienter is necessary!
In other words you could demur to the indictinent
for insufficiency?"
Mr. Tutt nodded.
“But in that case they'd merely go before the
Grand Jury and find another—a good one.
It's
much better to try and knock the case out on the
trial once and for all."
"Well, the Appleboys are waiting to see you,
said Tutt. "They are in my office. Bonnie Doon
got the case for us off his local district leader, who's
a member of the same lodge of the Abyssinian
Mysteries—Bonnie's been Supreme Exalted Ruler
of the Purple Mountain for over a year and he's
pulled in quite a lot of good stuff, not all dog cases
either! Appleboy's an Abyssinian too.”
"I'll see them," consented Mr. Tutt, "but I'm
going to have you try the case. I shall insist upon
acting solely in an advisory capacity. Dog trials
aren't in my line. There are some things which
are infra dig—even for Ephraim Tutt."
Mr. Appleboy sat stolidly at the bar of justice,
pale but resolute. Beside him sat Mrs. Appleboy,
also pale but even more resolute. A jury had been
168


The Dog Andrew
selected without much manifest attention by Tutt,
who had nevertheless managed to slip in an Abys-
sinian brother on the back row, and an ex-dog
fancier for Number Six. Also
among
those
pres.
ent were a delicatessen man from East Houston
Street, a dealer in rubber novelties, a plumber and
the editor of Baby's World. The foreman was
almost as fat as Mr. Appleboy, but Tutt regarded
this as an even break on account of the size of
Tunnygate. As Tutt confidently whispered to
Mrs. Appleboy, it was as rotten a jury as he could
get.
Mrs. Appleboy didn't understand why Tutt
should want a rotten jury, but she nevertheless im-
bibed some vicarious confidence from this state-
ment and squeezed Appleboy's hand encouragingly.
For Appleboy, in spite of his apparent calm, was
a very much frightened man, and under the creases
of his floppy waistcoat his heart was beating like a
tom-tom. The penalty for assault in the second
degree was ten years in state's prison, and life with
Bashemath, even in the vicinity of the Tunnygates,
seemed sweet. The thought of breaking stones
under the summer sun—it was a peculiarly hot sum-
mer—was awful. Ten years! He could never
live through it! And yet as his glance fell upon
the Tunnygates, arrayed in their best finery and
sitting with an air of importance upon the front
169


The Dog Andrew
plainant as he was on his way to work, with the
result that the latter had nearly been torn to shreds.
It was a horrible, dastardly, incredible, fiendish
crime, he would expect them to do their full duty
in the premises, and they should hear Mr. Tunny-
gate's story from his own lips.
Mr. Tunnygate limped with difficulty to the
stand, and having been sworn gingerly sat down-
partially. Then turning his broadside to the gap-
ing jury he recounted his woes with indignant
gasps.
"Have you the trousers which you wore upon
that occasion ?" inquired Pepperill.
Mr. Tunnygate bowed solemnly and lifted from
the floor a paper parcel which he untied and from
which he drew what remained of that now historic
garment.
“These are they,” he announced dramatically.
“I offer them in evidence," exclaimed Pepperill,
"and I ask the jury to examine them with great
care.”
They did so.
Tutt waited until the trousers had been passed
from hand to hand and returned to their owner;
then, rotund, chipper and birdlike as ever, began
his cross-examination much like a woodpecker at-
tacking a stout stump. The witness had been an
old friend of Mr. Appleboy's, had he not? Tunny-
171


Tutt and Mr. Tutt
gate admitted it, and Tutt pecked him again.
Never had done him any wrong, had he? Noth-
ing in particular. Well, any wrong?
Well, any wrong? Tunnygate
hesitated. Why, yes, Appleboy had tried to fence
in the public beach that belonged to everybody.
Well, did that do the witness any harm ? The wit-
ness declared that it did; compelled him to go
round when he had a right to go across. Oh! Tutt
put his head on one side and glanced at the jury.
How
many feet? About twenty feet. Then Tutt
pecked a little harder.
"Didn't you tear a hole in the hedge and stamp
down the grass when by taking a few extra steps
you could have reached the beach without
difficulty ?"
"I-I simply tried to remove an illegal obstruc-
tion!” declared Tunnygate indignantly.
"Didn't Mr. Appleboy ask you to keep off ?”
"Sure—yes!”
“Didn't you obstinately refuse to do so ?”
Mr. Pepperill objected to "obstinately" and it
was stricken out.
"I wasn't going to stay off where I had a right
to go,” asserted the witness.
"And didn't you have warning that the dog was
there?"
"Look here!" suddenly burst out Tunnygate.
"You can't hector me into anything. Appleboy
172


The Dog Andrew
never had a dog before. He got a dog just to sic
him on mel He put up a sign ‘Beware of the dog,'
but he knew that I'd think it was just a bluff. It
was a plant, that's what it was! And just as soon
as I got inside the hedge that dog went for me
and nearly tore me to bits. It was a rotten thing
to do and you know it!"
He subsided, panting.
Tutt bowed complacently.
"I move that the witness' remarks be stricken
out on the grounds first, that they are unresponsive;
second, that they are irrelevant, incompetent and
immaterial; third, that they contain expressions of
opinion and hearsay; and fourth, that they are
abusive and generally improper."
"Strike them out!" directed Judge Wither-
spoon. Then he turned to Tunnygate. “The es-
sence of your testimony is that the defendant set
a dog on you, is it not? You had quarreled with
the defendant, with whom you had formerly been
on friendly terms. You entered on premises
claimed to be owned by him, though a sign warned
you to beware of a dog. The dog attacked and
bit you? That's the
case,
isn't it?"
"Yes, Your Honor."
“Had you ever seen that dog before?''
"No, sir."
"Do you know where he got it?"
173


The Dog Andrew
butes as facial anatomy, bodily structure or the
shape of the cranium. Perhaps it is not, and in
reality we discern disposition from something far
more subtle—the tone of the voice, the expression
of the eyes, the lines of the face or even from an
aura unperceived by the senses. However that
may be, the wisdom of the Constitutional safeguard
guaranteeing that every person charged with crime
shall be confronted by the witnesses against him
was instantly made apparent when Mrs. Tunnygate
took the stand, for without hearing a word from
her firmly compressed lips the jury simultaneously
swept her with one comprehensive glance and
turned away. Students of women, experienced ad-
venturers in matrimony, these plumbers, bird mer-
chants, “delicatessens" and the rest looked, per-
ceived and comprehended that here was the very
devil of a woman—a virago, a shrew, a termagant,
a natural-born trouble-maker; and they shivered
and thanked God that she was Tunnygate's and not
theirs; their unformulated sentiment best expressed
in Pope's immortal couplet:
Oh woman, woman! when to ill thy mind
Is bent, all hell contains no fouler fiend.
She had said no word. Between the judge and
jury nothing had passed, and yet through the alpha
rays of that mysterious medium of communication
175


Tutt and Mr. Tutt
by which all men as men are united where woman
is concerned, the thought was directly transmitted
and unanimously acknowledged that here for sure
was a hell cat!
It was as naught to them that she testified to
the outrageous illegality of the Appleboys' terri-
torial ambitions, the irascibility of the wife, the
violent threats of the husband; or that Mrs. Apple-
boy had been observed to mail a suspicious letter
shortly before the date of the canine assault. They
disregarded her. Yet when Tutt upon cross-
examination sought to attack her credibility by
asking her various pertinent questions they unhesi-
tatingly accepted his implied accusations as true,
though under the rules of evidence he was bound
by her denials.
Peck 1: "Did you not knock Mrs. Appleboy's
flower pots off the piazza ?” he demanded
significantly.
"Never! I never did !" she declared passion-
ately.
But they knew in their hearts that she had.
“Didn't
you
steal her milk bottles ?"
“What a lie! It's absolutely false !"
Yet they knew that she did.
Peck 3: "Didn't you tangle up their fish lines
and take their thole-pins ?"
"Well, I never! You ought to be ashamed to
ask a lady such questions !"
Peck 2:
176


The Dog Andrew
They found her guilty.
"I move to dismiss, Your Honor," chirped Tutt
blithely at the conclusion of her testimony.
Judge Witherspoon shook his head.
"I want to hear the other side,” he remarked,
“The mere fact that the defendant put up a sign
warning the public against the dog may be taken as
some evidence that he had knowledge of the ani-
mal's vicious propensities. I shall let the case go
to the jury unless this evidence is contradicted or
explained. Reserve your motion.”
“Very well, Your Honor," agreed Tutt, patting
himself
upon
the abdomen. “I will follow your sug-
gestion and call the defendant. Mr. Appleboy,
take the stand.”
Mr. Appleboy heavily rose and the heart of
every fat man upon the jury, and particularly that
of the Abyssinian brother upon
the back row, went
out to him. For just as they had known without
being told that the new Mrs. Tunnygate was a
vixen, they realized that Appleboy was a kind,
good-natured man—a little soft, perhaps, like his
clams, but no more dangerous. Moreover, it was
plain that he had suffered and was, indeed, still
suffering, and they had pity for him. Appleboy's
voice shook and so did the rest of his person as
he recounted his ancient friendship for Tunnygate
and their piscatorial association, their common
matrimonial experiences, the sudden change in the
177


Tutt and Mr. Tutt
temperature of the society of Throggs Neck, the
malicious destruction of their property and the
unexplained aggressions of Tunnygate upon the
lawn. And the jury, believing, understood.
Then like the sword of Damocles the bessemer
voice of Pepperill severed the general atmosphere
of amiability: “Where did you get that dog?"
Mr. Appleboy looked round helplessly, distress
pictured in every feature.
“My wife's aunt lent it to us.'
“How did she come to lend it to you?”
“Bashemath wrote and asked for it."
"Oh! Did you know anything about the dog
before you sent for it?"
“Of your own knowledge?” interjected Tutt
sharply.
“Oh, no!" returned Appleboy.
"Didn't you know it was a vicious beast?”
sharply challenged Pepperill.
“Of your own knowledge ?" again warned Tutt.
“I'd never seen the dog."
"Didn't
your
wife tell
you
about it?"
Tutt sprang to his feet, wildly waving his arms:
"I object; on the ground that what passed be-
tween husband and wife upon this subject must be
regarded as confidential.”
"I will so rule,” said Judge Witherspoon,
smiling. "Excluded.”
Pepperill shrugged his shoulders,
178


The Dog Andrew
“I would like to ask a question," interpolated
the editor of Baby's World.
“Do!” exclaimed Tutt eagerly.
The editor, who was a fat editor, rose in an
embarrassed manner.
“Mr. Appleboy!” he began.
“Yes, sir!" responded Appleboy.
"I want to get this straight. You and your wife
had a row with the Tunnygates. He tried to tear
up your front lawn. You warned him off. He
kept on doing it. You got a dog and put up a
sign and when he disregarded it you sicked the
dog on him. Is that right?"
He was manifestly friendly, merely a bit cloudy
in the cerebellum. The Abyssinian brother pulled
him sharply by the coat tails.
“Sit down,” he whispered hoarsely. "You're
gumming it all up."
"I didn't sic Andrew on him!” protested Apple-
boy.
“But I say, why shouldn't he have ?" demanded
the baby's editor. “That's what anybody would
do!”
Pepperill sprang frantically to his feet.
"Oh, I object! This juryman is showing bias.
This is entirely improper.”
“I am, am I?” sputtered the fat editor angrily.
“I'll show you—
"You want to be fair, don't you ?” whined
179


Tutt and Mr. Tutt
Pepperill. “I've proved that the Appleboys had
no right to hedge in the beach!”
“Oh, pooh!" sneered the Abyssinian, now also
getting to his feet. “Supposing they hadn't? Who
cares a damn? This man Tunnygate deserved all
he's got!"
“Gentlemen! Gentlemen!” expostulated the
judge firmly. “Take your seats or I shall declare
a mistrial. Go on, Mr. Tutt. Call your next
witness."
“Mrs. Appleboy,” called out Tutt, "will you
kindly take the chair?" And that good lady, look-
ing as if all her adipose existence had been devoted
to the production of the sort of pies that mother
used to make, placidly made her way to the witness
stand.
"Did you know that Andrew was a vicious dog?"
inquired Tutt.
"No!” answered Mrs. Appleboy firmly. "I
didn't.”
O woman!
“That is all,” declared Tutt with a triumphant
smile.
“Then,” snapped Pepperill, "why did you send
for him?"
"I was lonely," answered Bashemath unblush-
ingly.
"Do you mean to tell this jury that
you
didn't
180


The Dog Andrew
know that that dog was one of the worst biters in
Livornia ?"
“I do!” she replied. “I only knew Aunt Eliza
had a dog. I didn't know anything about the dog
personally.”
"What did you say to your aunt in your letter ?”
“I said I was lonely and wanted protectior.."
"Didn't you hope the dog would bite Mr.
Tunnygate ?"
"Why, no!" she declared. "I didn't want him
to bite anybody."
At that the delicatessen man poked the plumber/
in the ribs and they both grinned happily at one
another.
Pepperill gave her a last disgusted look and sank
back in his seat.
"That is all !” he ejaculated feebly.
“One question, if you please, madam," said
Judge Witherspoon. "May I be permitted to"-
he coughed as a suppressed snicker ran round the
court—"that is—may I not-er-Oh, look
here! How did you happen to have the idea of
getting a dog?”
Mrs. Appleboy turned the full moon of her
homely countenance upon the court.
“The potato peel came down that way!" she
explained blandly.
“What!” exploded the dealer in rubber novelties.
181


Tutt and Mr. Tutt
“The potato peel-it spelled 'dog,'” she re-
peated artlessly.
“Lord!” deeply suspirated Pepperill. "What a
case! Carry me out!”
"Well, Mr. Tutt," said the judge, “now I will
hear what you may wish to say upon the question
of whether this issue should be submitted to the
jury. However, I shall rule that the indictment is
sufficient.”
Tutt elegantly rose.
“Having due respect to Your Honor's ruling as
to the sufficiency of the indictment I shall address
myself simply to the question of scienter. I might,
of course, dwell upon the impropriety of charging
the defendant with criminal responsibility for the
act of another free agent even if that agent be an
animal—but I will leave that, if necessary, for the
Court of Appeals. If anybody were to be indicted
in this case I hold it should have been the dog
Andrew. Nay, I do not jest! But I can see by
Your Honor's expression that any argument upon
that score would be without avail."
“Entirely,” remarked Witherspoon. “Kindly
go on!”
"Well," continued Tutt, "the law of this matter
needs no elucidation. It has been settled since the
time of Moses."
"Of whom?" inquired Witherspoon. "You
182


The Dog Andrew
don't need to go back farther than Chief Justice
Marshall so far as I am concerned."
Tutt bowed.
“It is an established doctrine of the common
law both of England and America that it is wholly
proper for one to keep a domestic animal for his
use, pleasure or protection, until, as Dykeman, J.,
says in Muller vs. McKesson, 10 Hun., 45, 'some
vicious propensity is developed and brought out to
the knowledge of the owner.' Up to that time the
man who keeps a dog or other animal cannot be
charged with liability for his acts. This has always
been the law.
“In the twenty-first chapter of Exodus at the
twenty-eighth verse it is written: 'If an ox gore a
man or a woman, that they die; then the ox shall
be surely stoned, and his flesh shall not be eaten;
but the owner of the ox shall be quit. But if the
ox were wont to push with his horn in time past,
and it hath been testified to his owner, and he hath
not kept him in, but that he hath killed a man or
a woman; the ox shall be stoned, and his owner
also shall be put to death.'
"In the old English case of Smith vs. Pehal, 2
Strange, 1264, it was said by the court: 'If a dog
has once bit a man, and the owner having notice
thereof keeps the dog, and lets him go about or
lie at his door, an action will lie against him at the
183


Tutt and Mr. Tutt
suit of a person who is bit, though it happened by
such person's treading on the dog's toes; for it was
owing to his not hanging the dog on the first notice.
And the safety of the king's subjects ought not
afterwards to be endangered.' That is sound law;
but it is equally good law that 'if a person with
full knowledge of the evil propensities of an animal
wantonly excites him or voluntarily and unneces-
sarily puts himself in the way of such an animal
he would be adjudged to have brought the injury
upon himself, and ought not to be entitled to
recover. In such a case it cannot be said in a legal
sense that the keeping of the animal, which is the
gravamen of the offense, produced the injury.'
"Now in the case at bar, first there is clearly no
evidence that this defendant knew or ever suspected
that the dog Andrew was otherwise than of a mild
and gentle disposition. That is, there is no evi-
dence whatever of scienter. In fact, except in this
single instance there is no evidence that Andrew
ever bit anybody. Thus, in the word of Holy Writ
the defendant Appleboy should be quit, and in the
language of our own courts he must be held harm-
less. Secondly, moreover,
it
appears
that the com-
plainant deliberately put himself in the way of the
dog Andrew, after full warning. I move that the
jury be directed to return a verdict of not guilty."
"Motion granted,” nodded Judge Witherspoon,
184


The Dog Andrew
burying his nose in his handkerchief. "I hold
that every dog is entitled to one bite."
“Gentlemen of the jury," chanted the clerk:
"How say you? Do you find the defendant guilty
or not guilty ?”
“Not guilty,” returned the foreman eagerly,
amid audible evidences of satisfaction from the
Abyssinian brother, the Baby's World editor and
the others. Mr. Appleboy clung to Tutt's hand,
overcome by emotion.
“Adjourn court!" ordered the judge. Then he
beckoned to Mr. Appleboy. "Come up here!” he
directed.
Timidly Mr. Appleboy approached the dais.
"Don't do it again!" remarked His Honor
shortly.
“Eh? Beg pardon, Your Honor, I mean—"
“I said: 'Don't do it again!'” repeated the
judge with a twinkle in his eye. Then lowering
his voice he whispered: “You see I come from
Livornia, and I've known Andrew for a long
time."
As Tutt guided the Appleboys out into the cor-
ridor the party came face to face with Mr. and
Mrs. Tunnygate.
"Huh!” sneered Tunnygate.
“Huh!" retorted Appleboy.
185


Wile Versus Guile
For 'tis the sport to have the engineer
Hoist with his own petar.-HAMLET.
IT
T was a mouse by virtue of which Ephraim
Tutt had leaped into fame. It is true that
other characters famous in song and story-par-
ticularly in "Mother Goose"—have similarly
owed their celebrity in whole or part to rodents,
but there is, it is submitted, no other case of a
mouse, as mouse per se, reported in the annals of
the law, except Tutt's mouse, from Doomsday
Book down to the present time.
Yet it is doubtful whether without his mouse
Ephraim Tutt would ever have been heard of at
all, and same would equally have been true if when
pursued by the chef's gray cat the mouse aforesaid
had jumped in another direction. But as luck
would have it, said mouse leaped foolishly into an
open casserole upon a stove in the kitchen of the
Comers Hotel, and Mr. Tutt became in his way a
leader of the bar.
186


Tutt and Mr. Tutt
It was.
casserole containing the stew was borne into the
dining room and the dish was served.
Suddenly Mr. Newbegin contorted his mouth
and exclaimed:
"Heck! A mouse !"
The head waiter was summoned, the
manager, the owner. Guests and garçons crowded
about Tutt and Mr. Newbegin to inspect what had
so unexpectedly been found. No one could deny
that it was mouse-cooked mouse; and Newbegin
had ordered kidney stew. Then Tutt had had his
inspiration.
"You shall pay well for this !” he cried, frown-
ing at the distressed proprietor, while Newbegin
leaned piteously against a pâpier-maché pillar.
“This is an outrage! You shall be held liable in
heavy damages for
my
client's indigestion !"
And thus Tutt & Tutt got their first case out
of Newbegin, for under the influence of the elo-
quence of Mr. Tutt a jury was induced to give him
a verdict of one thousand dollars against the
Comers Hotel, which the Court of Appeals sus-
tained in the following words, quoting verbatim
from the learned brief furnished by Tutt & Tutt,
Ephraim Tutt of counsel :
“The only legal question in the case, or so it
appears to us, is whether there is such a sale of
188


Wile Versus Guile
food to a guest on the part of the proprietor as
will sustain a warranty. If we are not in error,
however, the law is settled and has been since the
reign of Henry the Sixth. In the Ninth Year
Book of that Monarch's reign there is a case in
which it was held that 'if I go to a tavern to eat,
and the taverner gives and sells me meat and it
corrupted, whereby I am made very sick, action
lies against him without any express warranty, for
there is a warranty in law'; and in the time of
Henry the Seventh the learned Justice Keilway
said, 'No man can justify selling corrupt victual,
but an action on the case lies against the seller,
whether the victual was warranted to be good or
not.' Now, certainly, whether mouse meat be or
be not deleterious to health a guest at a hotel who
orders a portion of kidney stew has the right to
expect, and the hotel keeper impliedly warrants,
that such dish will contain no ingredients beyond
those ordinarily placed therein.”
"A thousand dollars !” exulted Tutt when the
verdict was rendered. “Why, anyone would eat
mouse for a thousand dollars !"
The Comers Hotel became in due course a
client of Tutt & Tutt, and the mouse which made
Mr. Tutt famous did not die in vain, for the case
became celebrated throughout the length and
189


Tutt and Mr. Tutt
breadth of the land, to the glory of the firm and
a vast improvement in the culinary conditions exist-
ing in hotels.
"Come in, Mr. Barrows! Come right in! I
haven't seen you for-well, how long is it?" ex-
claimed Mr. Tutt, extending a long welcoming
arm toward a human scarecrow upon the threshold.
“Five years," answered the visitor. “I only got
out day before yesterday. Fourteen months off
for good behavior."
He coughed and put down carefully beside him
a large dress-suit case marked E. V. B., Pottsville,
N. Y.
"Well, well!" sighed Mr. Tutt. "So it is. How
time flies!”
"Not in Sing Sing!" replied Mr. Barrows
ruefully.
“I suppose not. Still, it must feel good to be
out!"
Mr. Barrows made no reply but dusted off his
felt hat. He was but the shadow of a man, an
old man at that, as was attested by his long gray
beard, his faded blue eyes, and the thin white hair
about his fine domelike forehead.
“I forget what your trouble was about,” said
Mr. Tutt gently. "Won't you have a stogy?”
Mr. Barrows shook his head.
"I ain't used to it,” he answered. “Makes me
cough.” He gazed about him vaguely.
190


Wile Versus Guile
"Something about bonds, wasn't it?" asked Mr.
Tutt.
“Yes," replied Mr. Barrows; “Great Lakes and
Canadian Southern.'
“Of course! Of course!"
"A wonderful property," murmured Mr. Bar-
rows regretfully. “The bonds were perfectly
good. There was a defect in the foreclosure pro-
ceedings which made them a permanent underly-
ing security of the reorganized company—under
The Northern Pacific R. R. Co. vs. Boyd; you
know-but the court refused to hold that way.
They never will hold the way you want, will they ?"
He looked innocently at Mr. Tutt.
"No," agreed the latter with conviction, “they
never will!”
"Now those bonds were as good as gold," went
on the old man; "and yet they said I had to go to
prison. You know all about it. You were my
lawyer."
“Yes," assented Mr. Tutt, "I remember all
about it now.”
Indeed it had all come back to him with the
vividness of a landscape seen during a lightning
flash-the crowded court, old Doc Barrows upon
the witness stand, charged with getting money on
the strength of defaulted and outlawed bonds
picked up heaven knows where—pathetically trying
to persuade an unsympathetic court that for some
191


Tutt and Mr. Tutt
on.
reason they were still worth their face value,
though the mortgage securing the debt which they
represented had long since been foreclosed and
the money distributed.
“I'd paid for 'em-actual cash," he rambled
“Not much, to be sure—but real money. If
I got 'em cheap that was my good luck, wasn't it?
It was because my brain was sharper than other
folks'! I said they had value and I say so now-
only nobody will believe it or take the trouble to
find out. I learned a lot up there in Sing Sing
too,” he continued, warming to his subject. “Do
you know, sir, there are fortunes lying all about
us? Take gold, for instance! There's a fraction
of a grain in every ton of sea water. But the big
people don't want it taken out because it would
depress the standard of exchange. I say it's a
conspiracy—and yet they jailed a man for it!
There's great mineral deposits all about just wait-
ing for the right man to come along and develop
'em.”
His lifted eye rested upon the engraving of
Abraham Lincoln over Mr. Tutt's desk. “There
was a man!” he exclaimed inconsequently; then
stopped and ran his transparent, heavily veined
old hand over his forehead. "Where was I? Let
me see. Oh, yes-gold. All those great proper-
ties could be bought at one time or another for a
192


Wile Versus Guile
song. It needed a pioneer! That's what I was—
a pioneer to find the gold where other people
couldn't find it. That's not any crime; it's a
service to humanity! If only they'd have a little
faith—instead of locking you up. The judge never
looked up the law about those Great Lakes bonds !
If he had he'd have found out I was right! I'd
looked it up. I studied law once myself."
"I know," said Mr. Tutt, almost moved to
tears by the sight of the wreck before him. “You
practised up state, didn't you ?"
“Yes," responded Doc Barrows eagerly. "And
in Chicago too. I'm a member of the Cook County
bar. I'll tell you something! If the Supreme
Court of Illinois hadn't been wrong in its law I'd
be the richest man in the world in the whole
world!" He grabbed Mr. Tutt by the arm and
stared hard into his eyes. "Didn't I show you my
papers ? I own seven feet of water front clean
round Lake Michigan all through the city of Chi-
cago. I got it for a song from the man who found
out the flaw in the original title deed of 1817; he
was dying. “I'll sell my secret to you,' he says,
“because I'm passing on. May it bring you luck!
I looked it all up and it was just as he said. So
I got up a corporation–The Chicago Water Front
and Terminal Company—and sold bonds to fight
my claim in the courts. But all the people who had
193


Tutt and Mr. Tutt
deeds to my land conspired against me and had me
arrested! They sent me to the penitentiary.
There's justice for you!"
"That was too bad!" said Mr. Tutt in a sooth-
ing voice. "But after all what good would all that
money have done you?”
“I don't want money!" affirmed Doc plaintively.
“I've never needed money. I know enough secrets
to make me rich a dozen times over. Not money
but justice is what I want-my legal rights. But
I'm tired of fighting against 'em. They've beaten
me! Yes, they've beaten me! I'm going to retire.
That's why I came in to see you, Mr. Tutt. I
never paid you for your services as my attorney.
I'm going away. You see my married daughter
lost her husband the other day and she wants me
to come up and live with her on the farm to keep
her from being lonely. Of course it won't be much
like life in Wall Street-but I owe her some duty
and I'm getting on I am, Mr. Tutt, I really am !"
He smiled.
"And I haven't seen Louisa for three years—
my only daughter. I shall enjoy being with her.
She was such a dear little girl! I'll tell you another
secret”-his voice dropped to a whisper—"I've
found out there's a gold mine on her farm, only she
doesn't know it. A rich vein runs right through
her cow pasture. We'll be rich! Wouldn't it be
194


Wile Versus Guile
fine, Mr. Tutt, to be rich? Then I'm going to
pay you
in real
money for all you've done for me-
thousands ! But until then I'm going to let you
have these—all my securities; my own, you know,
every one of them."
He placed the suitcase in front of Mr. Tutt and
opened the clasps with his shaking old fingers. It
bulged with bonds, and he dumped them forth
until they covered the top of the desk.
"These are my jewels !” he said. “There's mil-
lions represented here!" He lifted one tenderly
and held it to the light, fresh as it came from the
engraver's press—a thousand dollar first-mortgage
bond of The Chicago Water Front and Terminal
Company. “Look at that! Good as gold—if the
courts only knew the law."
He took up a yellow package of valueless obliga-
tions, upon the top of which an old-fashioned loco-
motive, from whose bell-shaped funnel the smoke
poured in picturesque black clouds, dragging be-
hind it a chain of funny little passenger coaches,
drove furiously along beside a rushing river
through fields rich with corn and wheat amid a
border of dollar signs.
“The Great Lakes and Canadian Southern," he
crooned lovingly. “The child of my heart! The
district attorney kept all the rest-as evidence, he
claimed, but some day you'll see he'll bring an
195


Tutt and Mr. Tutt
action against the Lake Shore or the New York
Central based on these bonds. Yes, sir! They're
all right!"
He pawed them over, picking out favorites here
and there and excitedly extolling the merits of the
imaginary properties they represented. There were
the repudiated bonds of Southern states and munic-
ipalities; of railroads upon whose tracks no wheel
had ever turned; of factories never built except in
Doc Barrows' addled brain; of companies which
had defaulted and given stock for their worthless
obligations; certificates of oil, mining and land
companies; deeds to tracts now covered with sky
scrapers in Pittsburgh, St. Louis and New York-
each and every one of them not worth the paper
they were printed on except to some crook who
dealt in high finance. But they were exquisitely
engraved, quite lovely to look at, and Doc Barrows
gloated upon them with scintillating eyes.
“Ain't they beauties?" he sighed. “Some day-
yes, sir !—some day they'll be worth real money.
I paid it for some of 'em. But they're yours-
all yours.”
He gathered them up with care and returned
them to the suitcase, then fastened the clasps and
patted the leather cover with his hand.
“They are yours, sir !” he exclaimed dramati-
cally.
196


Wile Versus Guile
"As you say,” agreed Mr. Tutt, “there's gold
lying round everywhere if we only had sense
enough to look for it. But I think you're wise to
retire. After all, you have the satisfaction of
knowing that your enterprises were sound even if
other people disagreed with you.”
"If this was 1819 instead of 1919 I'd own Chi-
cago," began Doc, a gleam appearing in his eye.
“But they don't want to upset the status quo-
that's why I haven't got a fair chance. But they
needn't worry! I'd be generous with 'em-give
'em easy terms—long leases and nominal rents."
“But you'll like living with your daughter, I'm
sure," said Mr. Tutt. "It will make a new man
of you in no time.”
"Healthiest spot in northern New York, ex-
claimed Doc. “Within two miles of a lake-fish-
ing, shooting, outdoor recreation of all kinds, an
ideal site for a mammoth summer hotel.”
Mr. Tutt rose and laid his arms round old Doc
Barrows' shoulders.
"Thank you a thousand times,” he said grate-
fully, "for the securities. I'll be glad to keep
them for you in my vault.” His lips puckered in
a stealthy smile which he tried hard to conceal.
“Louisa may want to repaper the farmhouse
some time, " he added to himself.
"Oh, they're all yours to keep !" insisted Doc,
197


Tutt and Mr. Tutt
"I want you to have them!" His voice trembled.
"Well, well!" answered Mr. Tutt. “Leave it
that
way;
but if
you ever should want them they'll
be here waiting for you."
"I'm no Indian giver !" replied Doc with dig-
nity. “Give, give, give a thing—never take it
back again."
He laughed rather childishly. He was evidently
embarrassed.
"Could—could you let me have the loan of
seventy-five cents ?” he asked shyly.
19
Down below, inside a doorway upon the other
side of the street, Sergeant Murtha of the Detec-
tive Bureau waited for Doc Barrows to come out
and be arrested again. Murtha had known Doc for
fifteen years as a harmless old nut who had rarely
succeeded in cheating anybody, but who was re-
garded as generally undesirable by the authorities
and sent away every few years in order to keep
him out of mischief. There was no danger that
the public would accept Doc's version of the nature
or value of his securities, but there was always the
chance that some of his worthless bonds—those
bastard offsprings of his cracked old brain—would
find their
way
into less honest but saner hands. So
Doc rattled about from penitentiary to prison and
from prison to madhouse and out again, constantly
taking appeals and securing writs of habeas corpus,
198


Wile Versus Guile
and feeling mildly resentful, but not particularly
so, that people should be so interfering with his
business. Now as from force of long habit he
peered out of the doorway before making his exit;
he looked like one of the John Sargent's prophets
gone a little madder than usual—a Jeremiah or a
Habakkuk.
“Hello, Doc!" called Murtha in hearty, friendly
tones. "Hie spy! Come on out!"
“Oh, how d'ye do, captain !” responded Doc.
"How are you? I was just interviewing my
solicitor."
"Sorry,” said Murtha. "The inspector wants to
see you.
Doc Alinched.
“But they've just let me go!" he protested
faintly.
"It's one of those old indictments—Chicago
Water Front or something. Anyhow-Here!
Hold on to yourself !”
He threw his arms around the old man, who
seemed on the point of falling.
"Oh, captain! That's all over! I served time
for that out in Illinois !” For some strange reason
all the insanity had gone out of his bearing.
“Not in this state," answered Murtha. New
pity for this poor old wastrel took hold upon him.
"What were you going to do ?”
“I was going to retire, captain,” said Doc
199


Tutt and Mr. Tutt
faintly. “My daughter's husband—he owned a
farm up in Cayuga County-well, he died and I
was planning to go up there and live with her."
“And sting all the boobs ?” grinned Murtha not
unsympathetically. "How much money have you
got?"
"Seventy-five cents."
“How much is the ticket?"
"About nine dollars," quavered Doc. "But I
know a man down on Chatham Square who might
buy a block of stock in the Last Chance Gold Min-
ing Company; I could get the money that way.”
"What's the Last Chance Gold Mining Com-
pany?" asked Murtha sharply.
“It's a company I'm going to organize. I'll
tell you a secret, Murtha. There's a vein of gold
runs right through my daughter Louisa's cow pas-
ture—she doesn't know anything about it-"
"Oh, hell!” exclaimed Murtha. “Come along
to the station. I'll let you have the nine bones.
And you can put me down for half a million of
the underwriting."
That same evening Mr. Tutt was toasting his
carpet slippers before the sea-coal fire in his library,
sipping a hot toddy and rereading for the eleventh
time the "Lives of the Chancellors" when
Miranda, who had not yet finished washing the few
dishes incident to her master's meager supper,
200


Tutt and Mr. Tutt
yourself. But a great deal has happened to me!"
"I should have recognized you anywhere," he
protested gallantly. “Do sit down, Mrs. Effing-
ham, won't you? I am delighted to see you. How
would you like a glass of toddy? Just to show
there's no ill-feeling!"
He forced a glass into her hand and filled it
from the teakettle standing on the hearth, while
Miranda brought a sofa cushion and tucked it
behind the old lady's back.
Mrs. Effingham sighed, tasted the toddy and
leaned back deliciously. She was very wrinkled
and her hair under the bonnet was startlingly
white in contrast with the crêpe of her veil, but
there were still traces of beauty in her face.
"I've come to you, Mr. Tutt,” she explained
apologetically, “because I always said that if I ever
was in trouble you'd be the one to whom I should
go to help me out."
“What greater compliment could I receive ?"
"Well, in those days I never thought that time
would come," she went on. “You remember my
husband—Jim? Jim died two years ago.
And
little Jimmy-our eldest-he was only fourteen
when you boarded with us—he was killed at the
Front last July." She paused and felt for her
handkerchief, but could not find it. “I still keep
the house; but do you know how old I am, Mr.
Tutt? I'm seventy-one! And the two older girls
202



HORAS
“I always said that if I ever was in trouble you'd be the one to whom I should go to help me out





Wile Versus Guile
got married long ago and I'm all alone except for
Jessie, the youngest—and I haven't told her any-
thing about it.”
“Yes ?” said Mr. Tutt sympathetically. "What
haven't you told her about?”
“My trouble. You see, Jessie's not a well girl
she really ought to live out West somewhere, the
doctor says—and Jim and I had saved up all these
years so that after we were gone she would have
something to live on. We saved twelve thousand
dollars—and put it into Government bonds."
"You couldn't have anything safer, at any rate,"
remarked the lawyer. "I think you did exceed-
ingly well.”
"Now comes the awful part of it all!” exclaimed
Mrs. Effingham, clasping her hands. "I'm afraid
it's gone-gone forever. I should have consulted
you first before I did it, but it all seemed so fair
and above-board that I never thought.”
"Have you got rid of
your
bonds ?”
"Yes-no-that is, the bank has them. You see
I borrowed ten thousand dollars on them and gave
it to Mr. Badger to invest in his oil company for
me.”
Mr. Tutt groaned inwardly. Badger was the
most celebrated of Wall Street's near-financiers.
"Where on earth did you meet Badger ?” he
demanded.
"Why, he boarded with me for a long time,"
203


Tutt and Mr. Tutt
she answered. "I've no complaint to make of
Mr. Badger. He's a very handsome polite gentle-
man. And I don't feel altogether right about
coming to you and saying anything that might be
taken against him—but lately I've heard so many
things-
“Don't worry about Badger !" growled Mr.
Tutt. "How did you come to invest in his oil
stock ?”
“I was there when he got the telegram telling
how they had found oil on the property; it came
one night at dinner. He was tickled to death.
The stock had been selling at three cents a share,
and, of course, after the oil was discovered he said
it would go right up to ten dollars. But he was
real nice about it-he said anybody who had been
living there in the house could share his good for-
tune with him, come in on the ground floor, and
have it just the same for three cents. A week
later there came a photograph of the gusher and
almost all of us decided to buy stock.”
At this point in the narrative Mr. Tutt kicked
the coal hod violently and uttered a smothered
ejaculation
“Of course I didn't have any ready money,
explained Mrs. Effingham, “but I had the bonds
they only paid two per cent and the oil stock was
going to pay twenty-and so I took them down to
204


Wile Versus Guile
per cent
the bank and borrowed ten thousand dollars on
them. I had to sign a note and
pay
five
interest. I was making the difference—fifteen hun-
dred dollars every year.”
"What has it paid ?" demanded Mr. Tutt ironic-
ally.
“Twenty per cent," replied Mrs. Effingham. "I
get Mr. Badger's check regularly every
six
months."
“How many times have you got it?"
"Twice.”
"Well, why don't you like your investment ?”
inquired Mr. Tutt blandly. “I'd like something
that would pay me twenty per cent a year!"
“Because I'm afraid Mr. Badger isn't quite
truthful, and one of the ladies—that old Mrs.
Channing; you remember her, don't you—the one
with the curls ?—she tried to sell her stock and
nobody would make a bid on it at all—and when
she spoke to Mr. Badger about it he became very
angry and swore right in front of her. Then
somebody told me that Mr. Badger had been
arrested once for something—and—and Oh,
I wish I hadn't given him the money, because if
it's lost Jessie won't have anything to live on after
I'm dead and she's too sick to work. What do
you think, Mr. Tutt? Do you suppose Mr. Bad-
ger would buy the stock back ?”
205


Tutt and Mr. Tutt
Mr. Tutt smiled grimly.
"Not if I know him! Have you got your stock
with you?"
She nodded. Fumbling in her black bag she
pulled forth a flaring certificate-of the regulation
kind, not even engraved—which evidenced that
Sarah Maria Ann Effingham was the legal owner
of three hundred and thirty thousand shares of the
capital stock of the Great Geyser Texan Petroleum
and Llano Estacado Land Company.
Mr. Tutt took it gingerly between his thumb
and forefinger. It was signed ALFRED HAYNES
BADGER, Pres., and he had an almost irresistible
temptation to twist it into a spill and light a stogy
with it. But he used a match instead, while Mrs.
Effingham watched him apprehensively. Then he
handed the stock back to her and poured out an-
other glass of toddy.
“Ever been in Mr. Badger's office?”
“Oh, yes !" she answered. “It's a lovely office.
You can see 'way down the harbor—and over to
New Jersey. It's real elegant."
“Would you mind going there again? That is,
are you on friendly terms with him?"
Already a strange, rather desperate plan was
half formulated in his mind.
"Oh, we're perfectly friendly,” she smiled. "I
generally go down there to get my check.”'
“Whose check is it-his or the company's ?"
206


Wile Versus Guile
"Now say: 'Kindly deliver to Mr. Badger all
the securities I have on deposit with you, whenever
he pays my note. Very truly yours, Sarah Maria
Ann Effingham.'"
“But I don't want him to have my securities !".
she retorted.
"Oh, you won't mind! You'll be lucky to get
Mr. Badger to take back your oil stock on any
terms. Leave the certificate with me," laughed
Mr. Tutt, rubbing his long thin hands together,
almost gleefully. “And now as it is getting rather
late perhaps you will do me the honor of letting
me escort you home."
It was midnight before Mr. Tutt went to bed.
In the first place he had felt himself so neglectful
of Mrs. Effingham that after he had taken her
home he had sat there a long time talking over the
old lady's affairs and making the acquaintance of
the phthisical Jessie, who turned out to be a wist-
ful little creature with great liquid eyes and a deli-
cate transparent skin that foretold only too clearly
what was to be her future. There was only one
place for her, Mr. Tutt told himself-Arizona;
and by the grace of God she should go there,
Badger or no Badger!
As the old lawyer walked slowly home with his
hands clasped behind his back he pondered upon
the seeming mockery and injustice of the law that
209


Wile Versus Guile
stenographer, when she made her appearance at a
quarter past nine. "Just peek in the old man's
door if you want to feel rich! Say, he must ha'
struck pay dirt!
I wonder if we'll all get a
raise?”
But all the securities on Mr. Tutt's desk would
not have justified even the modest advance of five
dollars in Miss Sondheim's salary, and their em-
ployer was merely sorting out and making an in-
ventory of Doc Barrows' imaginary wealth. By
the time Mrs. Effingham arrived by appointment
at ten o'clock he had them all arranged and labeled;
and in a special bundle neatly tied with a piece of
red tape were what on their face were securities
worth upward of seventy thousand dollars. There
were ten of the beautiful bonds of the Great Lakes
and Canadian Southern Railroad Company with
their miniature locomotives and fields of wheat,
and ten equally lovely bits of engraving belonging
to the long-since defunct Bluff Creek and Iowa
Central, ten more superb lithographs issued by the
Mohawk and Housatonic in 1867 and paid off in
1882, and a variety of gorgeous chromos of In-
dians and buffaloes, and of factories and steam-
ships spouting clouds of soft-coal smoke; and on
the top of all was a pile of the First Mortgage
Gold Six Per Cent obligations of the Chicago
Water Front and Terminal Company—all of them
211


Wile Versus Guile
“Not at all! Not at all !” he laughed. “You
see there are fortunes lying all about us every-
where if we only know where to look. Now the
first thing to do is to get your bonds back from
the bank."
Mr. Thomas McKeever, the popular loan clerk
of the Mustardseed National, was just getting
ready for the annual visit of the state bank exam-
iner when Mr. Tutt, followed by Mrs. Effingham,
entered the exquisitely furnished boudoir where
lady clients were induced by all modern conven-
iences except manicures and shower baths to be-
come depositors. Mr. Tutt and Mr. McKeever
belonged to the same Saturday evening poker game
at the Colophon Club, familiarly known as The
Bible Class.
“ 'Morning, Tom," said Mr. Tutt. "This is
my client, Mrs. Effingham. You hold her note, I
believe, for ten thousand dollars secured by some
government bonds. She has a use for those bonds
and I thought that you might be willing to take
my indorsement instead. You know I'm good for
the money.
“Why, I guess we can accommodate her, Mr.
Tutt!” answered the Chesterfieldian Mr.
McKeever. "Certainly we can. Sit down, Mrs.
Effingham, while I send for your bonds. See the
morning paper ?"
Mrs. Effingham blushingly acknowledged that
213


Tutt and Mr. Tutt
she had not seen the paper. In fact, she was much
too excited to see anything.
"Sign here!” said the loan clerk, placing the
note before the lawyer.
Mr. Tutt indorsed it in his strange, humpbacked
chirography.
"Here are your bonds,” said Mr. McKeever,
handing Mrs. Effingham a small package in a
manila envelope. She took them in a half-fright-
ened way, as if she thought she was doing some-
thing wrong.
“And now," said Mr. Tutt, “the lady would
like a box in your safe-deposit vaults; a small one
-about five dollars a year—will do. She has
quite a hundle of securities with her, which I am
looking into. Most if not all of them are of little
or no value, but I have told her she might just as
well leave them as security for what they are worth,
in addition to my indorsement. Really it's just a
slick game of ours to get the bank to look after
them for nothing. Isn't it, Mrs. Effingham?"
"Ye-es !” stammered Mrs. Effingham, not under-
standing what he was talking about.
“Well," answered Mr. McKeever, "we never
refuse collateral. I'll put the bonds with the
note " His eye caught the edges of the bundle.
“Great Scott, Tutt! What are you leaving all these
bonds here for against that note? There must be
nearly a hundred thousand dol-
214


Wile Versus Guile
“I thought you never refused collateral, Mr.
McKeever !" challenged Mr. Tutt sternly.
Twenty minutes later the exquisite blonde that
acted as Mr. Badger's financial accomplice learned
from Mrs. Effingham's faltering lips that the
widow would like to see the great man in regard
to further investments.
"How does it look, Mabel ?" inquired the finan-
cier from behind his massive mahogany desk cov-
ered with a six by five sheet of plate glass. "Is it
a squeal or a fall?”
"Easy money," answered Mabel with confidence.
"She wants to put a mortgage on the farm.”
“Keep her about fourteen minutes, tell her the
story of my philanthropies, and then shoot her in,"
directed Badger.
So Mrs. Effingham listened politely while Mabel
showed her the photographs of Mr. Badger's home
for consumptives out in Tyrone, New Mexico, and
of his wife and children, taken on the porch of
his summer home at Seabright, New Jersey; and
then, exactly fourteen minutes having elapsed, she
was shot in.
"Ah! Mrs. Effingham! Delighted! Do be
seated!" Mr. Badger's smile was like that of the
boa constrictor about to swallow the rabbit.
“About my oil stock," hesitated Mrs. Effingham.
"Well, what about it?" demanded Badger
215


Wile Versus Guile
"Is this the Loan Department of the Mustard-
seed National ?"
"It is," he answered shortly.
“I understand
you
hold a note of a certain Mrs.
Effingham for ten thousand dollars. May I ask
if it is secured?"
“Who is this?" snapped McKeever.
“One of her friends," replied Mr. Badger
amicably.
"Well, we don't discuss our clients' affairs over
the telephone. You had better come in here if
you have any inquiries to make.”
“But I want to pay the note," expostulated Mr.
Badger.
“Oh! Well, anybody can pay the note who
wants to."
"And of course in that case you would turn over
whatever collateral is on deposit to secure the
note ?"
“If we were so directed.”
“May I ask what collateral there is ?”
"I don't know."
“There is some collateral, I suppose ?"
“Yes.”
"Well, I have an order from Mrs. Effingham
directing the bank to turn over whatever securities
she has on deposit as collateral, on my payment of
the note."
217


Tutt and Mr. Tutt
all her securities and put the proceeds into your
bogus oil company—whether she wishes it or not?
If you do the district attorney will get after you."
"I stand on my rights," snarled Badger. “Any-
how I can sell enough of the securities to pay
myself back my ten thousand dollars."
“And then you'll steal the rest ?" inquired Mr.
Tutt. "Be careful, my dear sir ! Remember there
is such a thing as equity, and such a place as Sing
Sing.'
Badger gave a cynical laugh.
"You're too late, my friend! I've got a written
order—a written order—from your client, as you
call her. She can't go back on it now. I've got
the bonds and I'm going to dispose of them."
"Very well,” said Mr. Tutt tolerantly. "You
can do as you see fit. But"—and he produced ten
genuine one-thousand-dollar bills and exhibited
them to Mr. Badger at a safe distance—“I now
on behalf of Mrs. Effingham make you a legal
tender of the ten thousand dollars you have just
paid out to cancel her note, and I demand the
return of the securities. Incidentally I beg to in-
form you that they are not worth the paper they
are printed on."
"Indeed!” sneered Badger. “Well, my dear
old friend, you might have saved yourself the
trouble of coming round here. You and your cli-
220


Wile Versus Guile
ent can go straight to hell. You can keep the
money; I'll keep the bonds. See?”'
Mr. Tutt sighed and shook his head hopelessly.
Then he put the bills back into his pocket and
started slowly for the door.
"You absolutely and finally decline to give up
the securities ?” he asked plaintively.
"Absolutely and finally?" mocked Mr. Badger
with a sweeping bow.
“Dear! Dear!" almost moaned Mr. Tutt. "I'd
heard of you a great many times but I never re-
alized before what an unscrupulous man you were!
Anyhow, I'm glad to have had a look at you. By
if you take the trouble to dig through
all that junk you'll find the certificate of stock in
the Great Jehoshaphat Oil Company you used to
Alim flam Mrs. Effingham with out of her ten
thousand dollars. Maybe you can use it on some-
one else! Anyhow, she's about two thousand dol-
lars to the good. It isn't every widow who can
get twenty per cent and then
get
her
money
back
in full."
the way,
221


The Hepplewhite Tramp
"No freeman shall be taken, or imprisoned, or dis-
seized, or outlawed, or exiled, or in any way harmed
nor will we go upon or send upon him-save by the
lawful judgment of his peers or by the law of the land.”
-MAGNA CHARTA, Sec. 39.
“ 'Somebody has been lying in my bed—and here she
is,' cried the Little, Small, Wee Bear, in his little, small,
wee voice."
-THE THREE BEARS.
O
NE of the nicest men in New York was Mr.
John De Puyster Hepplewhite. The chief
reason for his niceness was his entire satisfaction
with himself and the padded world in which he
dwelt, where he was as protected from all shocking,
rough or otherwise unpleasant things as a shrink-
ing débutante from the coarse universe of fact.
Being thus shielded from every annoyance and irri-
tation by a host of sycophants he lived serenely in
an atmosphere of unruffled calm, gazing down be-
nignly and with a certain condescension from the
222


The Hepplewhite Tramp
rarefied altitude of his Fifth Avenue windows,
pleased with the prospect of life as it appeared to
him to be and only slightly conscious of the vileness
of his fellow man.
Certainly he was not conscious at all of the
existence of the celebrated law firm of Tutt & Tutt.
Such vulgar persons were not of his sphere. His
own lawyers were gray-headed, dignified, rather
smart attorneys who moved only in the best social
circles and practised their profession with an air of
elegance. When Mr. Hepplewhite needed advice
he sent for them and they came, chatted a while
in subdued easy accents, and went away-like
cheerful undertakers. Nobody ever spoke in loud
tones near Mr. Hepplewhite because Mr. Hepple-
white did not like anything loud-not even clothes.
He was, as we have said, quite one of the nicest
men in New York.
At the moment when Mrs. Witherspoon made
her appearance he was sitting in his library reading
a copy of “Sainte-Beuve” and waiting for Bibby,
the butler, to announce tea. It was eight minutes
to five and there was still eight minutes to wait;
so Mr. Hepplewhite went on reading "Sainte-
Beuve."
Then "Mrs. Witherspoon !" intoned Bibby, and
Mr. Hepplewhite rose quickly, adjusted his eye-
glass and came punctiliously forward.
223


Tutt and Mr. Tutt
“My dear Mrs. Witherspoon !” he exclaimed
crisply. “I am really delighted to see you. It
was quite charming of you to give me this week-
end.”
“Adorable of
you to ask me Mr. Hepplewhite !"
returned the lady. “I've been looking forward to
this visit for weeks. What a sweet room? Is that
a Corot ?"
"Yes-yes!” murmured her host modestly.
“Rather nice, I think, eh? I'll show you my few
belongings after tea. Now will you go upstairs
first or have tea first?"
“Just as you say," beamed Mrs. Witherspoon.
"Perhaps I had better run up and take off
my
veil.
“Whichever you prefer," he replied chivalrously.
“Do exactly as you like. Tea will be ready in a
couple of minutes."
"Then I think I'll run up.
“Very well. Bibby, show Mrs. Wither-
spoon-
“Very good, sir. This way, please, madam.
Stockin', fetch Mrs. Witherspoon's bag from the
hall."
Mr. Hepplewhite stood rubbing his delicate
hands in front of the fire, telling himself what a
really great pleasure it was to have Mrs. Wither-
spoon staying with him over the week-end. He
was having a dinner party for her that evening-
224


The Hepplewhite Tramp
of forty-eight. All that it had been necessary for
him to do to have the party was to tell Mr. Sad-
ducee, his secretary, that he wished to have it and
direct him to send the invitations from List Num-
ber One and then to tell Bibby the same thing and
to order the chef to serve Dinner Number Four-
only to have Johannisberger Cabinet instead of
Niersteiner.
All these things were highly important to Mr.
Hepplewhite, for upon the absolute smoothness
with which tea and dinner were served and the
accuracy with which his valet selected socks to
match his tie his entire happiness, to say nothing
of his
peace
of mind, depended. His daily life
consisted of a series of subdued and nicely adjusted
social events. They were forecast for months
ahead. Nothing was ever done on the spur of the
moment at Mr. Hepplewhite's. He could tell to
within a couple of seconds just exactly what was
going to occur during the balance of the day, the
remainder of Mrs. Witherspoon's stay and the
rest of the month. It would have upset him very
much not to know exactly what was going to hap-
pen, for he was a meticulously careful host and
being a creature of habit the unexpected was apt
to agitate him extremely.
So now as he stood rubbing his hands it was in
the absolute certainty that in just a few more sec-
225


Tutt and Mr. Tutt
onds one of the footmen would appear between the
tapestry portières bearing aloft a silver tray with
the tea things, and then Bibby would come in with
the paper, and presently Mrs. Witherspoon would
come down and she would make tea for him and
they would talk about tea, and Aiken, and whether
the Abner Fullertons were going to get a domestic
or foreign divorce, and how his bridge was these
days. It would be very nice, and he rubbed his
hands very gently and waited for the Dresden
clock to strike five in the subdued and decorous way
that it had. But he did not hear it strike.
Instead a shriek rang out from the hall above,
followed by yells and feet pounding down the
stairs. Mr. Hepplewhite turned cold and some-
thing hard rose up in his throat. His sight dimmed.
And then Bibby burst in, pale and with protruding
eyes.
"There was a man in the guest room !” he
gasped. “Stockin's got him. What shall we do?”
At that moment Mrs. Witherspoon followed.
"Oh, Mr. Hepplewhite ! Oh, Mr. Hepple-
white !" she gasped, staggering toward him.
Mr. Hepplewhite would have taken her in his
arms and attempted to comfort her only it was not
done in Mr. Hepplewhite's set unless under ex-
treme provocation. So he pressed an armchair
upon her; or, rather, pressed her into an armchair;
226


The Hepplewhite Tramp
and leaned against the bookcase feeling very faint.
He was extremely agitated.
“S-send for the police! S-s-send for B-burk!” he
stuttered. Burk was a husky watchman who also
acted as a personal guard for Mr. Hepplewhite.
An alarm began to beat a deafening staccato in
the hall outside the library. Bibby rushed gurgling
from the room. Several tall men in knee breeches
and silk stockings dashed excitedly up and down
stairs using expressions such as had never before
been heard by Mr. Hepplewhite, and the clanging
gong of a police wagon was audible as it clattered
up the Avenue.
"Oh, Mr. Hepplewhite," whispered Mrs.
Witherspoon, unconsciously seeking his hand. “I
never was so frightened in
my
life!"
Then the gong stopped and the police poured
into the house and up the stairs. There were muf-
fed noises and suppressed ejaculations of "Aw,
come on there, now! I've got him, Mike! No
funny business now, you— ! Come along quiet!”
The whole house seemed blue with policemen,
and Mr. Hepplewhite became aware of a very fat
man in a blue cap marked Captain, who removed
the cap deferentially and otherwise indicated that
he was making obeisance. Behind the fat man
stood three other equally fat men, who held be-
tween them with grim firmness, by arm, neck and
227


Tutt and Mr. Tutt
shoulder, a much smaller—in fact, quite a small-
man, shabby, unkempt, and with a desperate look
upon his unshaven face.
"We've got him, all right, Mr. Hepplewhite !"
exulted the captain, obviously grateful that God
had vouchsafed to deliver the criminal into his and
not into other hands. "Shall I take him to the
house or do you want to examine him?"
"I?” ejaculated Mr. Hepplewhite. “Mercy,
no! Take him away as quickly as possible !"
"As you say, sir,” wheezed the captain. "Come
along, boys! Take him over to court and arraign
him!”
"Yes, do!" urged Mrs. Witherspoon. "And
arraign him as hard as you can; for he really
frightened me nearly to death, the terrible man!"
“Leave him to me, ma'am!” adjured the cap-
tain. "Will
your butler act as complain-
ant, sir?" he asked.
"Why—yes—Bibby will do whatever is proper,
agreed Mr. Hepplewhite. “It will not be neces-
sary for me to go to court, will it?"
"Oh, no!" answered the captain. “Mr. Bibby
will do all right. I suppose we had better make
the charge burglary, sir ?”
"I suppose so,
,” replied Mr. Hepplewhite
vaguely.
"Get on, boys," ordered the captain. "Good
“Will you
you have
228


The Hepplewhite Tramp
evening, sir. Good evening, ma'am. Step lively,
you!"
The blue cloud faded away, bearing with it both
Bibby and the burglar. Then the third footman
brought the belated tea.
“What a frightful thing to have happen!"
grieved Mrs. Witherspoon as she poured out the
tea for Mr. Hepplewhite. “You don't take cream,
do you?"
"No, thanks,” he answerd. "I find too much
cream hard to digest. I have to be rather careful,
you know. By the way, you haven't told me where
the burglar was or what he was doing when you
went into the room.'
"He was in the bed," said Mrs. Witherspoon.
"In the 'Decay of Lying,' Mr. Tutt," said Tutt
thoughtfully, as he dropped in for a moment's
chat after lunch, “Oscar Wilde says, 'There is no
essential incongruity between crime and culture.'”
The senior partner removed his horn-rimmed
spectacles and carefully polished the lenses with a
bit of chamois, which he produced from his watch
pocket, meanwhile resting the muscles of his fore-
head by elevating his eyebrows until he somewhat
resembled an inquiring but good-natured owl.
"That's plain enough," he replied. “The most
highly cultivated people are often the most un-
229


Tutt and Mr. Tutt
"And if you don't persuade society you go to
the chair," remarked Mr. Tutt laconically.
"To use another illustration,” exclaimed Tutt,
warming to the subject, "the private ownership of
property at the present time is recognized and pro-
tected by the law, but if we had a Bolshevik gov-
ernment it might be a crime to refuse to share one's
property with others."
“In that case
if
you
took
your share of another's
property by force, instead of being a thief you
would be a Progressive," smiled his partner.
Tutt robbed his forehead.
“Looking at it that way, you know," said he,
"makes it seem as if criminals were rather to be
admired.”
"Well, some of them are, and a great multitude
of them certainly were," answered Mr. Tutt. "All
the early Christian martyrs were criminals in the
sense that they were law-breakers.”
"And Martin Luther,” suggested Tutt.
"And Garibaldi," added Mr. Tutt.
"And George Washington—maybe?” hazarded
the junior partner.
Mr. Tutt shrugged his high shoulders.
"You press the analogy a long way, but-in a
sense every successful revolutionist was in the be-
giming a criminal—as every rebel is and perforce
must be," he replied.
232


The Hepplewhite Tramp
"So," said Tutt, "if you're a big enough criminal
you cease to be a criminal at all. If you're going
to be a crook, don't be a piker—it's too risky.
Grab everything in sight. Exterminate a whole
nation, if possible. Don't be a common garden
highwayman or pirate; be a Napoleon or a Willy
Hohenzollern."
"You have the idea," replied Mr. Tutt. "Crime
is unsuccessful defiance of the existing order of
things. Once rebellion rises to the dignity of revo-
lution, murder becomes execution and the mur-
derers become belligerents. Therefore, as all real
progress involves a change in or defiance of exist-
ing law, those who advocate progress are essen-
tially criminally minded, and if they attempt to
secure progress by openly refusing to obey the law
they are actual criminals. Then if they prevail,
and from being in the minority come into power,
they are taken out of jail, banquets are given in
their honor, and they are called patriots and heroes.
Hence the close connection between crime and
progress."
Tutt scratched his chin doubtfully.
“That sounds pretty good,” he admitted, “but”
—and he shook his head—“there's something the
matter with it. It doesn't work except in the case
of crimes involving personal rights and liberties.
I see your point that all progressives are criminals
in the sense that they are 'agin the law as it is,
233


The Hepplewhite Tramp
“However that may be,” declared Mr. Tutt
fiercely, "I claim that the criminal laws are admin-
istered, interpreted and construed in favor of the
rich as against the liberties of the poor, for the
simple reason that the administrators of the crimi-
nal law desire to curry favor with the powers
that be."
"The moral of which all is," retorted the other,
"that the law ought to be very careful about
locking up people.
"At any rate those who have violated laws upon
which there can be a legitimate difference of
opinion," agreed Mr. Tutt.
“That's where we come in," said Tutt. "We
make the difference-even if there never was any
before."
Mr. Tutt chuckled.
"We perform a dual service to society," he
declared. "We prevent the law from making
mistakes and so keep it from falling into disrepute,
and we show up its weak points and thus enable it
to be improved."
"And incidentally we keep many a future states-
man and prophet from going to prison," said Tutt.
"The name of the last one was Solomon Rabino-
vitch—and he was charged with stealing a second-
hand razor from a colored person described in the
papers as one Morris Cohen."
How long this specious philosophic discussion
235


Tutt and Mr. Tutt
would have continued is problematical had it not
been interrupted by the entry of a young gentleman
dressed with a somewhat ostentatious elegance,
whose wizened face bore an expression at once of
vast good nature and of a deep and subtle wisdom.
It was clear that he held an intimate relationship
to Tutt & Tutt from the familiar way in which he
returned their cordial, if casual, salutations.
"Well, here we are again,” remarked Mr. Doon
pleasantly, seating himself upon the corner of Mr.
Tutt's desk and spinning his bowler hat upon the
forefinger of his left hand. “The hospitals are
empty. The Tombs is as dry as a bone. Every-
body's good and every day'll be Sunday by and by."
"How about that man who stole a razor?" asked
Tutt.
"Discharged on the ground that the fact that
he had a full beard created a reasonable doubt,"
replied Doon. "Honestly there's nothing doing in
my
line-unless you want a tramp case.
"A tramp case!" exclaimed Tutt & Tutt.
"I suppose you'd call it that,” he answered
blandly. “I don't think he was a burglar. Any-
how he's in the Tombs now, shouting for a lawyer.
I listened to him and made a note of the case.'
Mr. Tutt pushed over the box of stogies and
leaned back attentively.
"You know the Hepplewhite house up on Fifth
236


The Hepplewhite Tramp
Avenue—that great stone one with the driveway?"
The Tutts nodded.
"Well, it
appears
that the prisoner-our pros-
pective client—was snooping round looking for
something to eat and found that the butler had left
the front door slightly ajar. Filled with a natural
curiosity to observe how the other half lived, he
thrust his way cautiously in and found himself in
the main hall-hung with tapestry and lined with
stands of armor. No one was to be seen. Can't
you imagine him standing there in his rags—the
Weary Willy of the comic supplements—gazing
about him at the objets d'art, the old masters, the
onyx tables, the statuary-wondering where the
pantry was and whether the housekeeper would be
more likely to feed him or kick him out?"
"Weren't any of the domestics about?" inquired
Tutt.
"Not one. They were all taking an afternoon
off, except the third assistant second man who was
reading 'The Pilgrim's Progress' in the servants'
hall. To resume, our friend was not only very
hungry, but very tired. He had walked all the
way from Yonkers, and he needed everything from
a Turkish bath to a manicuring. He had not been
shaved for weeks. His feet sank almost out of
sight in the thick nap of the carpets. It was quiet,
warm, peaceful in there. A sense of relaxation
237


The Hepplewhite Tramp
at the old leather couch against the side wall, in
which Weary Willy was supposed to be reclining.
“Can't you see 'em ?” he declaimed. “The
haughty Bibby with nose in air, preceding the great
dame of fashion, enters the pink room and comes
to attention, 'This way, madam l'he declaims, and
Mrs. Witherspoon sweeps across the threshold.”
Bonnie Doon, picking up an imaginary skirt,
waddled round Mr. Tutt and approached the
couch. Suddenly he started back.
“Oh, là, là !” he half shrieked, dancing about.
“There is a man in the bed!"
Both Tutts stared hard at the couch as if fully,
expecting to see the form of Weary Willy thereon.
Bonnie Doon had a way of making things appear
very
vivid.
“And sure enough,” he concluded, "there under-
neath the coverlid in the middle of the bed was a
huddled heap with a stubby beard projecting like
Excalibur from a pink silk lake!"
"Excuse me," interrupted Tutt. “But may I
ask what this is all about?"
"Why, your new case, to be sure," grinned
Bonnie, who, had he been employed by any other
firm, might have run the risk of being regarded as
an ambulance chaser. “To make a long and tragic
story short, they sent for the watchman, whistled
for a policeman, telephoned for the hurry-up
239


Tutt and Mr. Tutt
1
wagon, and haled the sleeper away to prison-
where he is now, waiting to be tried.”
"Tried!" ejaculated Mr. Tutt. "What for?”
"For crime, to be sure," answered Mr. Doon.
“What crime?"
“I don't know. They'll find one, of course."
Mr. Tutt swiftly lowered his legs from the desk
and brought his fist down upon it with a bang.
"Outrageous! What was I just telling you,
Tutt!" he cried, a flush coming into his wrinkled
face. “This poor man is a victim of the overzeal-
ousness which the officers of the law exhibit in
pro-
tecting the privileges and property of the rich. If
John De Puyster Hepplewhite fell asleep in some-
body's vestibule the policeman on post would send
him home in a cab; but if a hungry tramp does the
same thing he runs him in. If John De Puyster
Hepplewhite should be arrested for some crime
they would let him out on bail; while the
tramp
is
imprisoned for weeks awaiting trial, though under
the law he is presumed to be innocent. Is he pre-
sumed to be innocent ? Not much! He is pre-
sumed to be guilty, otherwise he would not be
there. But what is he presumed to be guilty of ?
That's what I want to know! Just because this
poor man-hungry, thirsty and weary_happened
to select a bed belonging to John De Puyster,
Hepplewhite to lie on he is thrown into prison,
240


Tutt and Mr. Tutt
It would have been one thing to let Hans
Schmidt—that was the tramp's name—go, if after
remaining in the Tombs until he had been forgot-
ten by the press he could have been unobtrusively
hustled over the Bridge of Sighs to freedom. Then
there would have been no comeback. But with
Ephraim Tutt breathing fire and slaughter, accus-
ing the police and district attorney of being truck-
lers to the rich and great, and oppressors of the
poor-law breakers, in fact-O'Brien found him-
self in the position of one having an elephant by
the tail and unable to let go.
In fact, it looked as if the case of the Hepple-
white Tramp might become a political issue. That
there was something of a comic side to it made it
all the worse.
"Holy cats, boys!" snorted District Attorney
Peckham to the circle of disgruntled police officers
and assistants gathered about him on the occasion
described by the reporters as his making a personal
investigation of the case, “Why in the name of
common sense didn't you simply boot the fellow
into the street ?"
“I wish we had, counselor !" assented the captain
of the Hepplewhite precinct mournfully. "But we
thought he was a burglar. I guess he was, at
that-and it was Mr. Hepplewhite's house.”
"I've heard that until I'm sick of it!" retorted
Peckham.
242


Tutt and Mr. Tutt
parilla bottle, for instance, or getting up a mas-
querade ball or going fishing or playing on Sunday
or loitering about a building to overhear what
people are talking about inside"
“That's no crime," protested the captain
scornfully.
“Yes, it is too!" retorted Mr. Magnus, other-
wise known to his fellows as Caput, because of
his supposed cerebral inflation. “Just like it is a
crime to have any kind of a show or procession on
Sunday except a funeral, in which case it's a crime
to make a disbursing noise at it."
“What's a disbursing noise ?” demanded
O'Brien.
"I don't know," admitted Magnus. “But that's
the law anyway.
You can't make a disbursing
noise at a funeral on Sunday.”
"Oh, hell !" ejaculated the captain. "Come to
think of it, it's a crime to spit. What man is
safe?"
"It occurs to me,” continued Mr. Magnus
thoughtfully, "that it is a crime under the law to
build a house on another man's land; now I should
say that there was a close analogy between doing
that and sleeping in his bed.”
"Hear! Hear!" commented O'Brien. "Caput
Magnus, otherwise known as Big Head, there is
no doubt but that your fertile brain can easily
devise a way out of our present difficulty."
244


Tutt and Mr. Tutt
Indeed there was a man named Tutt, of whom
Mr. Hepplewhite had never before heard, who
publicly declared that he, Tutt, would show him,
Hepplewhite, up for what he was and make him
pay with his body and his blood, to say nothing of
his
money,
for what he had done and caused to be
done. And so Mr. Hepplewhite became even more
agitated, until he dreamed of this Tutt as an enor-
mous bird like the fabled roc, with a malignant
face and a huge hooked beak that some day would
nip him in the abdomen and fly, croaking, away
with him. Mrs. Witherspoon had returned to
Aiken, and after the first flood of commiserations
from his friends on Lists Numbers One, Two,
Three and Four he felt neglected, lonely and rather
fearful.
And then one morning something happened that
upset his equanimity entirely. He had just started
out for a walk in the park when a flashy person
who looked like an actor walked impudently up
to him and handed him a piece of paper in which
was wrapped a silver half dollar. In a word Mr.
Hepplewhite was subpænaed and the nervous
excitement attendant upon that operation nearly
caused his collapse. For he was thereby com-
manded to appear before the Court of General
Sessions of the Peace upon the following Monday
at ten a. m. as a witness in a criminal action prose-
246


The Hepplewhite Tramp
cuted by the People of the State of New York
against Hans Schmidt. Moreover, the paper was
a dirty-brown color and bore the awful name of
Tutt. He returned immediately to the house and
telephoned for Mr. Edgerton, his lawyer, who at
once jumped into a taxi on the corner of Wall and
Broad Streets and hurried uptown.
"Edgerton,” said Hepplewhite faintly as the
lawyer entered his library, “this whole unfortunate
affair has almost made me sick. I had nothing to
do with the arrest of this man Schmidt. The
police did everything. And now I'm ordered to
appear as a witness! Why, I hardly looked at
the man. I shouldn't know him if I saw him. Do
I have to go to court?"
Mr. Edgerton smiled genially in a manner
which he thought would encourage Mr. Hepple-
white.
"I suppose you'll have to go to court. You
can't help that, you know, if you've been sub-
pænaed. But you can't testify to anything that
I can see. It's just a formality.”
"Formality l" groaned his client. “Well, I sup-
posed the arrest was just a formality."
Mr. Edgerton smiled again rather uncon-
vincingly.
"Well, you see, you can't always tell what will
happen when you once start something," he began.
247


Tutt and Mr. Tutt
“But I didn't start anything," answered Mr.
Hepplewhite. “I had nothing to say about it.”
At that moment Bibby appeared in the doorway.
"Excuse me, sir," he said.
“There is a young
man outside who asked me to tell you that he has
a paper he wishes to serve on you—and would you
mind saving him the trouble of waiting for you
to go out?"
“Another !" gagged Mr. Hepplewhite.
“Yes, sir! Thank you, sir,” stammered Bibby.
Mr. Hepplewhite looked inquiringly at Mr.
Edgerton and rose feebly.
"He'll get you sooner or later," declared the
lawyer. "A man as well known as you can't avoid
process.
Mr. Hepplewhite bit his lips and went out into
the hall.
Presently he returned carrying a legal-looking
bunch of papers.
"Well, what is it this time?" asked Edgerton
jocosely.
“It's a suit for false imprisonment for one hun-
dred thousand dollars !" choked Mr. Hepplewhite.
Mr. Edgerton looked shocked.
"Well, now you've got to convict him!” he
declared.
"Convict him ?” retorted Mr. Hepplewhite. "I
don't want to convict him. I'd gladly give a hun-
248


The Hepplewhite Tramp
dred thousand dollars to get out of the-the-darn
thing !"
Which was as near profanity as he had ever
permitted himself to go.
Upon the following Monday Mr. Hepplewhite
proceeded to court-flanked by his distinguished
counsel in frock coats and tall hats--simply because
he had been served with a dirty-brown subpena by
Tutt & Tutt; and his distress was not lessened by
the crowd of reporters who joined him at the en-
trance of the Criminal Courts Building; or by the
flashlight bomb that was exploded in the corridor
in order that the evening papers might reproduce
his picture on the front page. He had never been so
much in the public eye before, and he felt slightly
defiled. For some curious reason he had the feel-
ing that he and not Schmidt was the actual defend-
ant charged with being guilty of something; nor
was this impression dispelled even by listening to
the indictment by which the Grand Jury charged
Schmidt in eleven counts with burglary in the first,
second and third degrees and with the crime of
entering his, Hepplewhite's, house under circum-
stances not amounting to a burglary but with intent
to commit a felony, as follows:
“Therefore, to wit, on the eleventh day of Janu-
ary, in the year of our Lord one thousand nine
249


Tutt and Mr. Tutt
hundred and nineteen in the night-time of the said
day at the ward, city and county aforesaid the
dwelling house of one John De Puyster Hepple-
white, there situate, feloniously and burglariously
did break into and enter there being then and there
a human being in said dwelling house, with intent
to commit some crime therein, to wit, the goods,
chattels, and personal property of the said John
De Puyster Hepplewhite, then and there being
found, then and there feloniously and burglariously
to steal, take and carry away one silver tea service
of the value of five hundred dollars and one pair
of opera glasses of the value of five dollars each
with force and arms-
“But that silver tea service cost fifteen thousand
dollars and weighs eight hundred pounds!” whis-
pered Mr. Hepplewhite.
"Order in the court!" shouted Captain Phelan,
pounding upon the oak rail of the bar, and Mr.
Hepplewhite subsided.
Yet as he sat there between his lawyers listening
to all the extraordinary things that the Grand Jury
evidently had believed Schmidt intended to do,
the suspicion began gradually to steal over him
that something was not entirely right somewhere.
Why, it was ridiculous to charge the man with
trying to carry off a silver service weighing nearly
half a ton when he simply had gone to bed and
fallen asleep. Still, perhaps that was the law.
250


Tutt and Mr. Tutt
case, instead of being a trial of Schmidt, resolved
itself into an attack upon Mr. Hepplewhite and
his retainers and
upon
the
corrupt minions of the
law who had violated every principle of justice,
decency and morality in order to accomplish the
unscrupulous purposes of a merciless aristocrat-
meaning him. With biting sarcasm, Mr. Tutt
forced from the writhing Bibby the admission that
the prisoner was sound asleep in the pink silk fast-
nesses of the Bouguereau Room when he was dis-
covered, that he made no attempt to escape, that
he did not assault anybody and that he had ap-
peared comatose from exhaustion; that there was
no sign of a break anywhere, and that the pair of
opera glasses "worth five dollars apiece"-Tutt in-
vited the court's attention to this ingenuous phrase-
ology of Mr. Caput Magnus, as a literary curiosity
-were a figment of the imagination.
In a word Mr. Tutt rolled Bibby up and threw
him away, while his master shuddered at the open
disclosure of his trusted major-domo's vulgarity,
mendacity and general lack of sportsmanship.
Somehow all at once the case began to break up
and go all to pot. The jury got laughing at Bibby,
the footmen and the cops as Mr. Tutt painted for
their edification the scene following the arrival of
Mrs. Witherspoon, when Schmidt was discovered
asleep, as Mr. Tutt put it, like Goldilocks in the
Little, Small, Wee Bear's bed.
252


The Hepplewhite Tramp
Stocking was the next witness, and he fared no
better than had Bibby. O'Brien, catching the
judge's eye, made a wry face and imperceptibly
lowered his left lid-on the side away from the
jury, thus officially indicating that, of course, the
case was a lemon but that there was nothing that
could be done except to try it out to the bitter end.
Then he rose and called out unexpectedly: “Mr.
John De Puyster Hepplewhite-take the stand!”
It was entirely unexpected. No one had sug-
gested that he would be called for the prosecution.
Possibly O'Brien was actuated by a slight touch of
malice; possibly he wanted to be able, if the case
was lost, to accuse Hepplewhite of losing it on his
own testimony. But at any rate he certainly had
no anticipation of what the ultimate consequence of
his act would be.
Mr. Hepplewhite suddenly felt as though his
entire intestinal mechanism had been removed. But
he had no time to take counsel of his fears. Every-
body in the courtroom turned with one accord and
looked at him. He rose, feeling as one who dreams
that he is naked in the midst of a multitude. He
shrank back hesitating, but hostile hands reached
out and pushed him forward. Cringing, he slunk
to the witness chair, and for the first time faced
the sardonic eyes of the terrible Tutt, his adver-
sary, who looked scornfully from Hepplewhite to
the jury and then from the jury back to Hepple-
253


Tutt and Mr. Tutt
burglar, had you made. any personal inquiry as to
the facts ?”
"I didn't have him arrested!” protested the
witness.
“You deny
that
you
ordered Bibby to charge the
defendant with burglary?” roared Mr. Tutt.
“Take care! You know there is such a crime as
perjury, do
you
not?"
“No-I mean yes,” stuttered Mr. Hepplewhite
abjectly. “That is, I've heard about perjury-
but the police attended to everything for me."
“Aha!” cried Mr. Tutt, snorting angrily like
the war horse depicted in the Book of Job. “The
police 'attended to my client for you, did they?
What do you mean—for you? Did you pay them
for their little attention?"
“I always send them something on Christmas,"
said Mr. Hepplewhite. “Just like the postmen.'
Mr. Tutt looked significantly at the jury, while
a titter ran round the court room.
"Well,” he continued with patient irony, "what
we wish to know is whether these friends of
yours
whom you so kindly remember at Christmas
dragged the helpless man away from your house,
threw him into jail and charged him with burglary
by your authority?"
"I didn't think anything about it," asserted Hep-
plewhite. “Really I didn't. I assumed that they
256


The Hepplewhite Tramp
more I hope Mr. Tutt gets a substantial fee out
of it. He strikes me as a lawyer who knows his
business !"
The oldest and fattest court officers, men so old
and fat that they remembered the trial of Boss
Tweed and the days when Delancey Nicoll was the
White Hope of the Brownstone Court House-
declared Mr. Tutt's summation was the greatest
that ever they heard. For the shrewd old lawyer
had an artist's hand with which he played upon
the keyboard of the jury and knew just when to
pull out the stops of the vox humana of pathos and
the grand diapason of indignation and defiance.
So he began by tickling their sense of humor with
an ironic description of afternoon tea at Mr.
Hepplewhite's, with Bibby and Stocking as chief
actors, until all twelve shook with suppressed
laughter and the judge was forced to hide his face
behind the Law Journal; ridiculed the idea of a
criminal who wanted to commit a crime calmly
going to sleep in a pink silk bed in broad daylight;
and then brought tears to their eyes as he pictured
the wretched homeless tramp, sick, footsore and
starving, who, drawn by the need of food and
warmth to this silk nest of luxury, was clubbed,
arrested and jailed simply because he had violated
the supposed sanctity of a rich man's home.
The jury watched him as intently as a dog
261


Tutt and Mr. Tutt
watches a piece of meat held over its nose. They
smiled with him, they wept with him, they glared
at Mr. Hepplewhite and they gazed in a friendly
way at Schmidt, whom Mr. Tutt had bailed out
just before the trial. The very stars in their
courses seemed warring for Tutt & Tutt. In the
words of Phelan: “There was nothing to it!"
"Thank God,” concluded Mr. Tutt eloquently,
“that in this land of liberty in which we are privi-
leged to dwell no man can be convicted of a crime
except by a jury of his peers—a right sacred under
our Constitution and inherited from Magna
Charta, that foundation stone of English liberty,
in which the barons forced King John to declare
that 'No freeman shall be taken, or imprisoned, or
disseized, or outlawed, or exiled, or in any way
harmed ..
. save by the lawful judgment of his
peers or by the law of the land.'
"Had I the time I would demonstrate to you
the
arbitrary character of our laws and the inequality
with which they are administered.
“But in this case the chief witness has already
admitted the innocence of the defendant. There is
nothing more to be said. The prosecution has
cried 'Peccavi!' I leave
my
client in
your
hands."
He resumed his seat contentedly and wiped his
forehead with his silk handkerchief. The judge
looked down at O'Brien with raised eyebrows.
262


The Hepplewhite Tramp
"I will leave the case to the jury on Your
Honor's charge,” remarked the latter carelessly.
“Gentlemen of the jury,” began the judge, “the
defendant is accused of entering the house of Mr.
Hepplewhite with the intent to commit a crime
therein"
Mr. Hepplewhite sat, his head upon his breast,
for what seemed to him several hours. He had
but one thought—to escape. His ordeal had been
far worse than he had anticipated. But he had
made a discovery. He had suddenly realized that
one cannot avoid one's duties to one's fellows by
leaving one's affairs to others—not even to the
police. He perceived that he had lived with his
head stuck in the sand. He had tried to escape
from his responsibilities as a citizen by hiding be-
hind the thick walls of his stone mansion on Fifth
Avenue. He made up his mind that he would do
differently if he ever had the chance. Meanwhile,
was not the jury ever going to set the poor man
free?
They had indeed remained out a surprisingly
long time in order merely to reach a verdict which
was a mere formality. Ah! There they were !
Mr. Hepplewhite watched with palpitating heart
while they straggled slowly in. The clerk made
the ordinary perfunctory inquiry as to what their
verdict was. Mr. Hepplewhite did not hear what
263


Tutt and Mr. Tutt
the foreman said in reply, but he saw both the
Tutts and O'Brien start from their seats and heard
a loud murmur rise throughout the court room.
"What's that!" cried the clerk in astonished
tones. "What did you say, Mister Foreman ?”
"I said that we find the defendant guilty,'
replied the foreman calmly.
Mr. Tutt stared incredulously at the twelve
traitors who had betrayed him.
“Never mind, Mr. Tutt," whispered Number
Six confidentially. "You did the best you could.
Your argument was fine-grand—but nobody
could ever make us believe that your client went
into that house for any purpose except to steal
whatever he could lay his hands on. Besides, it
wasn't Mr. Hepplewhite's fault. He means well.
And anyhow a nut like that has got to be protected
against himself.”
He might have enlightened Mr. Tutt further
upon the psychology of the situation had not the
judge at that moment ordered the prisoner
arraigned at the bar.
"Have you ever been convicted before?” asked
His Honor sharply.
"Sure," replied the Hepplewhite Tramp care-
lessly. "I've done three or four bits. I'm a bur-
glar. But you can't give me more than a year for
illegal entry.'
264


Lallapaloosa Limited
“Ethics: The doctrine of man's duty in respect to
himself and the rights of others.”—CENTURY DICTION-
ARY.
"I don't say that all these people couldn't be squared;
but it is right to tell you that I shouldn't be sufficiently
degraded in my own estimation unless I was insulted
with a very considerable bribe."--Pooh-BAH.
I'YA
are
'VE been all over those securities,” Miss Wiggin
informed Mr. Tutt as he entered the office one
morning, "and not a single one of them is listed
on the Stock Exchange."
“What securities those ?” asked her
employer, hanging his tall hat on the antiquated
mahogany coat tree in the corner opposite the
screen that ambushed the washing apparatus. "I
don't remember any securities," he remarked as he
applied a match to the off end of a particularly
green and vicious-looking stogy.
"Why, of course you do, Mr. Tutt!" insisted
266


Lallapaloosa Limited
Miss Wiggin. “Don't you remember those great
piles of bonds and stocks that Doctor Barrows left
here with you to keep for him ?”
“Oh, those!" Mr. Tutt smiled inscrutably.
“Mr. Barrows is not a physician,” he corrected
her, running his eye over the General Sessions
calendar. "He's only a 'doc'—that is to say, one
who doctors. You know you can doctor a lot of
things besides the human anatomy. No, I guess
they're not listed on the Stock Exchange or any-
where else."
“Well, here's a schedule I made of them-
Miss Sondheim typed it—and their total face value
is seventeen million eight hundred thousand dol-
lars. I tried to find out all I could, but none of the
firms on Wall Street had ever heard of any
of
them-excepting of one that was traded in on the
curb up to within a few weeks. There's Great
Lakes and Canadian Southern Railway Company,"
she went on, “Chicago Water Front and Terminal
Company, Great Geyser Texan Petroleum and
Llano Estacado Land Company-dozens and
dozens of them, and not one has an office or, so
far as I can find out, any tangible existance but
the one I spoke of.”
“Which is this great exception?" queried Mr.
Tutt absently as he searched through the Law
Journal for the case he was going to try that after-
267


Tutt and Mr. Tutt
noon. “You said one of them had been dealt in on
the curb? You astonish me!"
"It's got a funny name," she answered. “It
almost sounds as if they meant it for a joke-
Horse's Neck Extension."
"I guess they meant it for a joke all right-on
the public," chuckled her employer. "How many
shares are there?”
"A hundred thousand," she answered.
“Jumping Jehoshaphat!" ejaculated Mr. Tutt.
“How on earth did old Doc manage to get hold
of them?”
"It sold for only ten cents a share!" replied
Miss Wiggin. “That would mean ten thousand
dollars-
“If Doc paid for it,” supplemented Mr. Tutt.
“Which he probably didn't. What's it selling for
now?"
“It isn't selling at all."
Mr. Tutt pressed the button that summoned
Willie.
“When
you
haven't anything better to do," he
said to her, "why don't you go round and see what
has become of-of-Horse's Neck Extension?"
“I will," assented Miss Wiggin. “It makes me
feel rich just to talk about such things. I just
love it."
“Many a slick crook has taken advantage of
268


Tutt and Mr. Tutt
with very
directors of Horse's Neck, rather as if he had
detected his associates in a crime.
"Isaacs says,” he announced in an arrogant,
almost insulting tone, though below the surface he
was an entirely genial person, "that the new vein
in the Amphalula runs into the west drift of
Horse's Neck almost to where we quit work in
Number Nine five years ago.
“If it does it will make it a bonanza property,"
cmphatically declared his partner, Mr. Scherer, a
dolichocephalous person
black hair and
thin bluish cheeks. "It's a pity we didn't buy it
all in at ten cents a share."
"We didl" retorted Greenbaum. "All that
could be shaken out. We've got all the stock that
hasn't gravitated to the cemeteries."
"Even if the Amphalula vein doesn't run into
it it will come near enough to make Horse's Neck
worth dollars per share. It's a heads-I-win-tails-
you-lose proposition,” commented Mr. Hunn dryly.
"Who controls Amphalula ?”
"We do," snapped Greenbaum.
“Then it's a cinch,” returned Hunn mildly.
"Shake out the sleepers, reorganize, and sell or
hold as seems most advisable later on.'
Mr. Elderberry cleared his throat tentatively.
“If you gentlemen will pardon me—I have been
considering this matter for some little time," he
270


Tutt and Mr. Tutt
Street. Everything they did was with and by the
advice of counsel. Yet not one of these active-
minded gentlemen, including Mr. Greenbaum, the
dolichocephalous Scherer and the acephalous Hunn,
had ever done a stroke of productive work or con-
tributed anything toward the common weal. In
fact, distress to somebody in some form, and usu-
ally to a large number of persons, inevitably fol-
lowed whatever deal they undertook, since their
business was speculating in mining properties and
unloading the bad ones upon an unsuspecting public
which Scherer, Hunn, Greenbaum & Beck had
permitted to deceive itself.
Thus, when Greenbaum called upon Mr. Elder-
berry for advice, it savored strongly of Koko's
consulting Pooh-Bah and was sometimes almost as
confusing, for just as Pooh-Bah on these occasions
was won't to reply, “Certainly. In which of my
capacities? As First Lord of the Treasury, Lord
Chamberlain, Attorney-General, Chancellor of the
Exchequer, Privy Purse or Private Secretary?" so
the financial and corporate Elderberry might
equally well ask: "Exactly. But are you seeking
my advice as secretary of Horse's Neck, of Holy
Jo, of Cowhide Number Five, or as vice-president
of Hooligan Gulch and Red Water, treasurer of
Amphalula or president of Blimp Consolidated ?"
Just now it was, of course, obvious that he was
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addressing the company in his capacity of secretary
of Horse's Neck.
"It goes without saying, gentlemen, that this
property is pretty nearly down and out. You will
recall that most of the insiders sold out on the tail
of the Goldfield Boom and waited for the market
to sag until we could buy in again. The mines are
full of water, work was abandoned over four years
ago, and the property is practically defunct. The
original capitalization was ten million shares at
one dollar a share. We own or control at least
four million shares, for which we paid ten to fifteen
cents, while we had sold our original holdings for
one dollar sixty to one dollar ninety-five a share.
While Horse's Neck represents a handsome profit
-in my opinion”—he cleared his throat again as
if deprecating the vulgarity of his phrase—“it is
good for another whirl.”
“You say it's full of water?" inquired Hunn.
"It will cost about fifty thousand dollars to
pump out the mines and a hundred thousand to
repair the machinery. Then there's quite an in-
debtedness about seventy-five thousand; and tax
liens—another fifty. Half a million dollars would
put Horse's Neck on the map, and if the Ampha-
lula vein crosses the property it will be worth ten
millions. If it doesn't, the chance that it is going
to will make a market for the stock."
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Tutt and Mr. Tutt
of the attorney who was in attendance. "I mean
is it legal ?"
“Perfectly legal,” replied Mr. Chippingham
conclusively. “A corporation has a perfect right
to dispose of its entire assets for a proper con-
sideration, and if any minority stockholder feels
aggrieved he can take the matter to the Delaware
courts and get his equity assessed. Besides, every-
body is treated alike-all the stockholders in
Horse's Neck can subscribe pro rata for Lalla-
paloosa."
"Only they won't,” grinned Scherer.
"And so, as they are wiped out-the new cor-
poration that is us—in fact gets their equity,
just as much as if they had deeded it to us."
"That is, we get for nothing about one-half the
value of the property,” agreed Elderberry. “Now,
I've been over the list and I don't think you'll
from
any
of them.”
“He's got 'em on the list-he's got 'em on the lišt;
And they'll none of 'em be missed—they'll none of 'em
be missed!”
hear a peep
hummed Mr. Beck. "It looks good to me! I'll
take a hundred thousand."
"Mr. Chippingham has the papers drawn
already," continued Elderberry. “Of
you've got to give the old stockholders notice, but
course
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we can rush the thing through and before anybody
wakes up the thing will be done. Then they can
holler all they want."
"Well, I'll come in,” announced Hunn com-
placently.
“So will I," echoed Scherer. “And the firm
can underwrite the last hundred thousand, and
that will clean it up."
“Is it all right for us to underwrite the stock
ourselves at half price?” inquired Mr. Beck. “I
mean-is it legal ?”
"Sure!" reiterated Mr. Chippingham. “Some-
body's got to underwrite it; why not us?”
“Move we adjourn,” said Mr. Greenbaum.
"Elderberry—the usual.”
Mr. Elderberry removed from his change
pocket five glittering gold pieces and slid one across
the glass sheet to each director.
“Second motion. Carried! All up-seventh
inning!" smiled Mr. Scherer; and the directors,
pocketing their gold pieces, arose.
If, as it has been defined, ethics consists of a “sys-
tem of principles and rules concerning moral obli-
gations and regard for the rights of others," it
may be interesting to speculate as to whether or
not these gentlemen had any or not, and, if so,
what it may have been. But in considering this
somewhat nice question it should be borne in mind
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Tutt and Mr. Tutt
that Messrs. Scherer, Hunn, Greenbaum & Beck
were bankers of standing, and were advised by a
firm of attorneys of the highest reputation. On
its face, and as it was about to be represented to
the stockholders of Horse's Neck, the proposition
appeared fair enough.
The circular, shortly after sent out to all the
names upon the list, stated succinctly that financial
and labor conditions had been such that it had been
found impossible to operate the mine profitably for
several years, that it had depreciated greatly in
value owing to the water which had accumulated in
its lower levels, that it had exhausted its surplus,
that a heavy indebtedness had accumulated, that
the corporation's outstanding notes had been pro-
tested and that the property would be sold under
foreclosure unless money was immediately raised
to pay them, the interest due and taxes; that half
a million dollars was needed to put the property
in operation and that there was no way to secure
it, as nobody was willing to loan money to a bank-
rupt mining concern. That under these circum.
stances no practical method had been proposed ex-
cept to organize a new corporation capitalized at
one million instead of ten, to the stock of which
each shareholder in Horse's Neck might subscribe
in proportion to his holdings, at par, and to which
the assets of the old corporation should be trans-
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turned to the office upon the adjournment of court
in the afternoon and replaced that ancient object
in its accustomed resting-place—"regarding that
precious hat of mine”—he eyed it affectionately-
“I can only say that I would as soon send myself
to a dry-cleaning establishment as to permit its
profanation by the iron of a haberdasher."
Miss Wiggin laughed lightly.
"That doesn't explain your cryptic statement
that it would probably cost you a hundred thousand
dollars,” she replied. “Still-
Mr. Tutt turned suddenly upon his heel and
held her with an upraised hand, the bony wrist of
which was encircled, after an intervening space of
some five inches, by a frayed cuff confined with a
black onyx button the size of a quarter.
“Behold,” he cried in the deep resonant voice
that he used in addressing juries at the climax of a
peroration, "the integuments of my personality,
the ancient habiliments of an honorable profession
—the panoply of the legal warrior. Here, my
corslet”-he touched his dingy waistcoat with his
left hand; “my greaves”—he brushed the baggy,
legs of his pantaloons; "my halberd”—he raised
his old mahogany cane with its knot of yellow.
ivory; "my
casque"
"-he indicated his ruffled stove-
pipe. “Arrayed in these I am Mr. Ephraim Tutt,
attorney and counselor at law—the senior partner
in Tutt & Tutt—a respected member of the bar
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Tutt and Mr. Tutt
duly accredited and authorized to practise before
the Supreme Court of the State of New York, the
Court of Appeals, the District Court of the United
States, the Circuit Court of Appeals, the Supreme
Court of the United States, the Court of
Claims-
-the Police Court and the Coroner's
Court,” concluded Miss Wiggin, making him a
mock curtsy.
"Without these indicia of my profession and my
individuality I should be like David without his
sling or Samson without his hair. I should be
merely Tutt, a criminal lawyer—one of a multi-
tude-regarded perhaps as a shyster. But in these
robes of my high office I am a high priest of the
law; just as you, my dear girl, are one of its many
devoted and worthy priestesses. Can you imagine
me going to court in a bowler hat or arguing to the
jury in a cutaway coat or bobtail business suit?
Can you picture Ephraim Tutt with his hair cut
short or in an Ascot tie, any more than you can
envisage him in riding breeches or wearing lilacs ?
No! There is but one Mr. Tutt, and these are
his only garments. He who steals my hat may
steal trash, but without it I should be like a disem-
bodied spirit unable to return to my earthly
dwelling-place.
"A paltry hundred thousand?
"Nay, without my hat-my helmet 1-I should
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be valueless to myself and everybody else; so esti-
mate my worth and you can assay the value of my
hat. What am I worth in your opinion?"
And then Miss Wiggin, having glanced cau-
tiously if quickly round, made a most astonishing
declaration.
“Just about a million times more than anybody
else in the whole world, you old dear!" she whis-
pered; and rising upon her toes she kissed his
wrinkled cheek.
“Dear me! You really mustn't do that!"
gasped Mr. Tutt.
"Well," she retorted, "you can discharge me if
you like. But first sit down, light a cigar and let
me tell you something."
Mr. Tutt did as he was bid, chuckling.
"Well,” said Miss Wiggin, "there is such a
thing as Horse's Neck Extension after all !"
“Um-you don't say?" he answered, struggling
to make his stogy draw.
“And it has an office with about a hundred other
corporations of various kinds—most of them with
names that sound like the zoo-Yellow Wildcat,
Jumping Leapfrog, and that sort of thing. It
seems Horse's Neck is played out and they are
going to reorganize it -"
“Who are?" demanded her employer, suddenly
sitting erect.
"Scherer, Hunn, Greenbaum & Beck.”
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Tutt and Mr. Tutt
“The dickens they are!" he ejaculated. “That
bunch of pirates ? Not if I know it!”
"Why not?"
“Reorganize! Reorganize? Reorganization is
my middle namel” cried Mr. Tutt. "So Scherer,
Hunn, Greenbaum & Beck are going to reorganize
something, are they? Let 'em try! Not so long
as I've got my hat!"
“This is all very enigmatical to me,” replied
Miss Wiggin. "But then, I'm only a woman.
Aren't they all right? Why shouldn't they reor-
ganize a mine if it's exhausted ?"
"If it's exhausted why do they want to reor-
ganize it?” he demanded, climbing to his feet.
"Let me tell you something, Minerva! All my life
I've been fighting against tyranny—the tyranny of
the law, the tyranny of power, the tyranny of
money.
He drew fiercely on his stogy, which being desic-
cated flared like a Roman candle.
"You don't need to tell me what this plan of
reorganization is; because they wouldn't propose
one unless it was going to benefit them in some way,
and the only way it can be made to benefit them
is at the expense of the other stockholders. Quod
erat demonstrandum."
Mr. Tutt seemed to have become distended
somehow and to have spread over the entire wall
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Lallapaloosa Limited
surface of his office like the genie which the fisher-
man innocently permitted to escape from the bottle.
“There isn't one reorganization scheme in a hun-
dred that isn't crooked somewhere."
“According to that, if a business is unsuccessful
it ought to be allowed to go to pot for fear that
somebody might make a profit in putting it on its
feet,” she countered. “I think you're a violent,
irascible, prejudiced old man !"
“All the same," he retorted, "show me a reor-
ganization scheme and I'll show you a flimflam!
What's this one? Bet you anything you like it's
as crooked as a ram's horn. I don't have to hear
about it. Don't want to read the plan. But I'll
bust it—higher than Hades. See if I don't!"
He spat the remaining filaments of his stogy,
from the window and fished out another.
"How do we come into it, anyhow?” he
demanded.
“Doctor—I mean Mister Barrows," replied
Miss Wiggin.
"Oh, yes. Of course. Well, you send for him
to come down here and sign the papers."
“What papers ?”
"The complaint and order to show cause."
“But there isn't any."
“There will be, all right, by the time he gets
here."
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Lallapaloosa Limited
Chippingham, springing to his feet. “I think the
court should be informed at the outset that this
man, Barrows, is a notorious ex-convict."
Judge Pollak raised his eybrows.
“This is an outrage!” thundered Mr. Tutt, his
form rising ceilingward. “My client-like all of
us—has had his misfortunes, but they are happily
a thing of the past; he has the same rights as if he
were an archbishop, the president of a university,
or-a judge of this honorable court."
"We are sitting in equity,” remarked His
Honor. “The question of bona fides is a vital
one. Is the complainant an ex-convict ?”
“This is the complainant, sir,” cried Mr. Tutt,
indicating old Doc, now for the first time in his
life smartly arrayed in a new checked suit, red tie,
patent-leather shoes and suède gloves, and with his
beard neatly trimmed. “This is the unfortunate
man whose honest savings of a lifetime are being
wrested from him by an unscrupulous group of
manipulators who—in my opinion—are more de-
serving of confinement behind prison walls than he
ever was.”
The gentlemen with the tall hats bit their lips
and showed signs of poorly suppressed agitation,
"But is your client an ex-convict, Mr. Tutt?"
repeated the judge quietly.
"Yes, Your Honor, he is."
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99
“What relief does that give a man like Mr.
Barrows ?" shouted Mr. Tutt. "He can't afford
to go down to Wilmington with a carload of books
and a corps of experts to prove the value of Horse's
Neck. It would cost him more than his stock is
worth !"
“That remedy is not exclusive, in any event,”
declared the judge. “If this complainant is going
to be defrauded I will enjoin this contract pendente,
lite and appoint a receiver.”
"Your Honor !” protested Chippingham in
great agony. “It is not the fact that this mine is
worth ten million. It isn't worth at the most more
than one hundred thousand. It is full of water,
the machinery is rusted and falling to pieces and
the workings are practically exhausted. The only
way to rehabilitate this property is for everybody
to come in and put up enough money by subscrib-
ing to the stock of the new corporation to pump it
out, buy new engines and start producing again.
Is it fair to the majority, who are willing to go on,
put up more money, and make an attempt to save
the property, to have this complainant-an ex-
convict who never paid a cent for his stock, dug up
from heaven knows where-enjoin their contract
and throw the corporation into the hands of a
receiver? This is nothing but a strike suit. I
repeat-a strike suit !"
He glowered breathless at his adversary.
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Lallapaloosa Limited
99
"Twelve years, Your Honor.”
"Who is Wilson W. Elderberry ?"
“He is the secretary of the Horse's Neck Exten-
sion, Your Honor."
“Is he in court?"
From a distant corner Mr. Elderberry bashfully
rose.
“Come here!" ordered the court. And the Pooh-
Bah of the Scherer-Hunn-Greenbaum-Beck enter-
prises came cringing to the bar.
“Did you sign this circular in 1914?" demanded
Judge Pollak
"Yes, Your Honor."
“Were the statements contained in it true?”
Elderberry squirmed.
“Ye-es," Your Honor. That is—they were to
the best of my knowledge and belief. I was, of
course, obliged to take what information was at
hand-and-er-and-"
"Did you sign the other circular, issued last
month, to the effect that the mine was practically,
valueless ?”
“Yes, sir.” Elderberry studiously examined the
moldings on the cornice of the judge's canopy.
“Um!” remarked the court significantly.
There was a flurry among the tall hats. Then
Mr. Greenbaum sprang to his feet.
"If you please, Your Honor," he announced,
staccato, "we entirely disavow Mr. Elderberry's
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1
"Your man never paid a cent for his holdings.
That alone would throw him out of court. The
mine isn't worth a cent without the Amphalula
vein. We're taking a big chance. You've got us
down and we've got to pay; but we'll pay only
ten thousand dollars—that's final."
"I ain't any more of a swindler than
you
be!”
said Doc with plaintive indignation.
“What do you wish to do, Mr. Barrows ?"
asked Mr. Tutt, turning to him deferentially.
“I leave it entirely to you, Mr. Tutt. It's your
stock; I gave it all to you months ago."
“Then,” answered Mr. Tutt with fine scorn, “I
shall tell this miserable cheating rogue and rascal
either to pay you a hundred thousand dollars or go
to hell."
Mr. Tobias Greenbaum clenched his fists and
cast a black glance upon the group.
"You can wreck this corporation if you choose,
you bunch of dirty blackmailers, but you'll get not
a cent more than ten thousand. For the last time,
will
you
take it or not?"
Mr. Tutt rose and pointed toward the door.
“Kindly remove yourself before I call the
police," he said coldly. "I advise the firm of
Scherer, Hunn, Greenbaum & Beck to retain
criminal counsel. Your ten thousand may come in
handy for that purpose.”
Mr. Tobias Greenbaum went.
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