Part 3 out of 4
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 can't be done. An animal
hasn't been brought to the bar of justice for several centuries."
"No, no!" interrupted Tutt. "They don't--"
"There was a case," went on Mr. Tutt reminiscently "Let me see--at
Sauvigny, I think it was--about 1457, when they tried a sow and three
pigs for killing a child. The court assigned a lawyer to defend her, but
like many assigned counsel he couldn't think of anything to say in her
behalf. As regards the little pigs he did enter the plea that no animus
was shown, that they had merely followed the example of their mother,
and that at worst they were under age and irresponsible. However, the
court found them all guilty, and the sow was publicly hanged in the
"What did they do with the three little pigs?" inquired Tutt with some
"They were pardoned on account of their extreme youth," said Mr. Tutt,
"and turned loose again--with a warning."
"I'm glad of that!" sighed Tutt. "Is that a real case?"
"Absolutely," replied his partner. "I've read it in the Sauvigny
"I'll be hanged!" exclaimed Tutt. "I never knew that animals were ever
held personally responsible."
"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 lawyer. "I've seen many an old
horse that had a great deal more conscience than his master. And on
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 punishment 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 intelligence--and from that point
of view many of our friends are really much less responsible than
"Which, as you so sagely point out, would, however 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."
"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
"That's a fine relic of barbarism!" remarked Tutt. "But the child soon
passes through that dangerous 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
"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
"The field of criminal responsibility is the No Man's Land of the law,"
mused Mr. Tutt. "Roughly, mental capacity to understand the nature 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 theoretically 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 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 chipmunk."
"Nevertheless, the law has always been consistent," 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--"
"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 partner. "I knew a flea once,
"They had a regular form of procedure," continued 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 summoned three times publicly to
appear. If they 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. "Sometimes they became even more prolific and destructive
than they were before, and sometimes they promptly died. All the leeches
were prosecuted at Lausanne in 1451. A few selected representatives
were brought into court, tried, convicted and ordered to depart within
a fixed period. Maybe they didn't fully grasp their obligations or
perhaps were just acting contemptuously, but they didn't depart and so
were promptly exorcised. Immediately 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.
"Who got 'em off?" asked Tutt.
"M. Chassensee, the advocate appointed to defend them. They had been a
great nuisance and were ordered to appear in court. But none of them
turned up. M. Chassensee 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 extension. 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, therefore 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!"
"What did Chassensee 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
"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
"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
"I'm glad to know that," said Tutt. "When did they give up trying
"Nearly two hundred years ago," answered Mr. Tutt. "But for some time
after that they continued 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 Andrew," hazarded Tutt, "and
maybe declare him forfeited to somebody as a deodand."
"Deodand means 'given to God,'" explained Mr. Tutt.
"Well, I'd give Andrew to God--if God would take him," declared Tutt
"But who is Andrew?" asked Mr. Tutt.
"Andrew is a dog," said Tutt, "who bit one Tunnygate, and now the Grand
Jury have indicted not the dog, as it is clear from your historical
disquisition they should have done, but the dog's owner, Mr. Enoch
"Assault in the second degree with a dangerous weapon."
"What was the weapon?" inquired Mr. Tutt simply.
"What are you talking about?" cried Mr. Tutt. "What nonsense!"
"Yes, it is nonsense!" agreed Tutt. "But they've done it all the same.
Read it for yourself!" And he handed Mr. Tutt the indictment.
* * * * *
"The Grand Jury of the County of New York by this indictment accuse
Enoch Appleboy of the crime of assault in the second degree, committed
"Said Enoch Appleboy, late of the Borough of Bronx, City and County
aforesaid, on the 21st day 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 willfully and
wrongfully make an assault in and upon the legs and body of him the said
Herman Tunnygate, 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
Appleboy, which said dog, being of the name of 'Andrew,' the said Enoch
Appleboy did then and there feloniously, willfully and wrongfully
incite, provoke, and encourage, then and there being, to bite him, the
said Herman Tunnygate, by means whereof 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."
"That," asserted Mr. Tutt, wiping his spectacles, "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
"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
"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
indictment 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, provoked and encouraged, bite the legs and body
of him the said Herman--did then and there feloniously, willfully and
wrongfully incite, provoke and encourage the said Andrew, and so
"I get you!" exclaimed Tutt enthusiastically. "Of course an allegation
of _scienter_ is necessary! In other words you could demur to the
indictment 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 selected without much manifest attention by Tutt, who had
nevertheless managed to slip in an Abyssinian brother on the back row,
and an ex-dog fancier for Number Six. Also among those present 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 imbibed some vicarious confidence from this statement
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 summer--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
bench of the court room, he told himself that he would do the whole
thing all over again--yes, he would! He had only stood up for his
rights, and Tunnygate's blood was upon his own head--or wherever it was.
So he squeezed Bashemath's hand tenderly in response.
Upon the bench Judge Witherspoon, assigned from somewhere upstate to
help keep down the ever-lengthening criminal calendar of the
Metropolitan District, finished the letter he was writing to his wife in
Genesee County, sealed it and settled back in his chair. An old war
horse of the country bar, he had in his time been mixed up in almost
every kind of litigation, but as he looked over the indictment he with
difficulty repressed a smile. Thirty years ago he'd had a dog case
himself; also of the form, style and breed known as bull.
"You may proceed, Mister District Attorney!" he announced, and little
Pepperill, the youngest of the D.A.'s staff, just out of the law school,
begoggled and with his hair plastered evenly down on either side of his
small round head, rose with serious mien, and with a high piping voice
opened the prosecution.
It was, he told them, a most unusual and hence most important case. The
defendant Appleboy had maliciously procured a savage dog of the most
vicious sort and loosed it upon the innocent complainant 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. Tunnygate'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 gaping
jury he recounted his woes with indignant gasps.
"Have you the trousers which you wore upon that occasion?" inquired
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
"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 attacking a stout
stump. The witness had been an old friend of Mr. Appleboy's, had he not?
Tunnygate admitted it, and Tutt pecked him again. Never had done him
any wrong, had he? Nothing in particular. 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
witness 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
"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
"I--I simply tried to remove an illegal obstruction," declared Tunnygate
"Didn't Mr. Appleboy ask you to keep off?"
"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
"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 never had a dog before. He got a dog just to sic him
on me! 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
"Strike them out!" directed Judge Witherspoon. Then he turned to
Tunnygate. "The essence 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?"
"Do you know where he got it?"
"My wife told me--"
"Never mind what your wife told you. Do you--"
"He don't know where the dog came from, judge!" suddenly called out Mrs.
Tunnygate in strident tones from where she was sitting. "But I know!"
she added venomously. "That woman of his got it from--"
Judge Witherspoon fixed her coldly with an impassive and judicial eye.
"Will you kindly be silent, madam? You will no doubt be given an
opportunity to testify as fully as you wish. That is all, sir, unless
Mr. Tutt has some more questions."
Tutt waved the witness from the stand contemptuously.
"Well, I'd like a chance to testify!" shrilled Mrs. Tunnygate, rising in
"This way, madam," said the clerk, motioning her round the back of the
jury box. And she swept ponderously into the offing like a full-rigged
bark and came to anchor in the witness chair, her chin rising and
falling upon her heaving bosom like the figurehead of a vessel upon a
heavy harbor swell.
Now it has never been satisfactorily explained just why the character of
an individual should be in any way deducible from such irrelevant
attributes 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 adventurers in
matrimony, these plumbers, bird merchants "delicatessens" and the rest
looked, perceived 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
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' territorial ambitions, the irascibility of the wife,
the violent threats of the husband; or that Mrs. Appleboy 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 unhesitatingly 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 passionately
But they knew in their hearts that she had.
Peck 2: "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
"Well, I never! You ought to be ashamed to ask a lady such questions!"
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 animal'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 suggestion 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 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,
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
"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 between husband and wife upon this subject must
be regarded as confidential."
"I will so rule," said Judge Witherspoon, smiling. "Excluded."
Pepperill shrugged his shoulders.
"I would like to ask a question," interpolated the editor of Baby's
"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 Appleboy.
"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 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, looking 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."
"That is all," declared Tutt with a triumphant smile.
"Then," snapped Pepperill, "why did you send for him?"
"I was lonely," answered Bashemath unblushingly.
"Do you mean to tell this jury that you didn't 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 protection."
"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
"The potato peel came down that way!" she explained blandly.
"What!" exploded the dealer in rubber novelties.
"The potato peel--it spelled 'dog,'" she repeated 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
"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 don't need to go back farther
than Chief Justice Marshall so far as I am concerned."
"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 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 unnecessarily 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 evidence 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 harmless. Secondly, moreover, it appears that the
complainant 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
"Motion granted," nodded Judge Witherspoon, 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 corridor the party came face
to face with Mr. and Mrs. Tunnygate.
"Huh!" sneered Tunnygate.
"Huh!" retorted Appleboy.
Wile Versus Guile
For 'tis the sport to have the engineer
Hoist with his own petar.--HAMLET.
It was a mouse by virtue of which Ephraim Tutt had leaped into fame. It
is true that other characters famous in song and story--particularly 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.
It is quite true that the tragic end of the mouse in question has
nothing to do with our present narrative except as a side light upon the
vagaries of the legal career, but it illustrates how an attorney if he
expects to succeed in his profession, must be ready for anything that
comes along--even if it be a mouse.
The two Tutts composing the firm of Tutt & Tutt were both, at the time
of the mouse case, comparatively young men. Tutt was a native of Bangor,
Maine, and numbered among his childhood friends one Newbegin, a
commercial wayfarer in the shingle and clapboard line; and as he hoped
at some future time to draw Newbegin's will or to incorporate for him
some business venture Tutt made a practise of entertaining his
prospective client at dinner upon his various visits to the metropolis,
first at one New York hostelry and then at another.
Chance led them one night to the Comers, and there amid the imitation
palms and imitation French waiters of the imitation French restaurant
Tutt invited his friend Newbegin to select what dish he chose from those
upon the bill of fare; and Newbegin chose kidney stew. It was at about
that moment that the adventure which has been referred to occurred in
the hotel kitchen. The gray cat was cheated of its prey, and in due
course the 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!"
It was. The head waiter was summoned, the manager, the owner. Guests and
garcons 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
"You shall pay well for this!" he cried, frowning at the distressed
proprietor, while Newbegin leaned piteously against a papier-mache
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 eloquence 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 sustained 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 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 breadth of the land, to the
glory of the firm and a vast improvement in the culinary conditions
existing in hotels.
"Come in, Mr. Barrows! Come right in! I haven't seen you for--well, how
long is it?" exclaimed 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
"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
"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. Barrows regretfully. "The bonds
were perfectly good. There was a defect in the foreclosure proceedings
which made them a permanent underlying 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
"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 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
"I'd paid for 'em--actual cash," he rambled on. "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 waiting for the right man to come along and
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
properties could be bought at one time or another for a 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
"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 Chicago 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 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 soothing 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!"
"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 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 millions 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 obligations upon the top of
which an old-fashioned locomotive from whose bell-shaped funnel the
smoke poured in picturesque black clouds, dragging behind 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
"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 action against the Lake
Shore or the New York Central based on these bonds. Yes, sir! They're
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 municipalities 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
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 dramatically.
"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 Chicago," 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
"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," exclaimed Doc. "Within two miles
of a lake--fishing, 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 gratefully, "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
"Oh, they're all yours to keep!" insisted Doc. "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 dignity. "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
* * * * *
Down below, inside a doorway upon the other side of the street, Sergeant
Murtha of the Detective 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 regarded
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, 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
"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."
"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
"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 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?"
"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 Mining
Company; I could get the money that way."
"What's the Last Chance Gold Mining Company?" 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
pasture--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
* * * * *
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, pushed open the door and announced that a lady was calling.
"She said you'd know her sho' enough, Mis' Tutt," grinned Miranda,
swinging her dishrag, "'case you and she used to live tergidder when you
was a young man."
This scandalous announcement did not have the startling effect upon the
respectable Mr. Tutt which might naturally have been anticipated, since
he was quite used to Miranda's forms of expression.
"It must be Mrs. Effingham," he remarked, closing the career of Lord
Eldon and removing his feet from the fender.
"Dat's who it is!" answered Miranda. "She's downstairs waitin' to come
"Well, let her come," directed Mr. Tutt, wondering what his old
boarding-house keeper could want of him, for he had not seen Mrs.
Effingham for more than fifteen years, at which time she was well
provided with husband, three children and a going business. Indeed, it
required some mental adjustment on his part to recognize the withered
little old lady in widow's weeds and rusty black with a gold star on her
sleeve who so timidly, a moment later, followed Miranda into the room.
"I'm afraid you don't recognize me," she said with a pitiful attempt at
faded coquetry. "I don't blame you, Mr. Tutt. You don't look a day older
yourself. But a great deal has happened to me!"
"I should have recognized you anywhere," he protested gallantly. "Do sit
down, Mrs. Effingham 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 crepe 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
got married long ago and I'm all alone except for Jessie, the
youngest--and I haven't told her anything 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 exceedingly 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
Mr. Tutt groaned inwardly. Badger was the most celebrated of Wall
"Where on earth did you meet Badger?" he demanded.
"Why, he boarded with me--for a long time," she answered. "I've no
complaint to make of Mr. Badger. He's a very handsome polite gentleman.
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
"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 fortune 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
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 the bank and borrowed
ten thousand dollars on them. I had to sign a note and pay five per cent
interest. I was making the difference--fifteen hundred dollars every
"What has it paid?" demanded Mr. Tutt ironically.
"Twenty per cent," replied Mrs. Effingham. "I get Mr. Badger's check
regularly every six months."
"How many times have you got it?"
"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. Badger would buy the stock
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 another glass of
"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
Already a strange, rather desperate plan was half formulated in his
"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?"
"I really don't know," she answered simply. "What difference would it
"Oh, nothing--except that he might claim that he'd loaned you the
"Loaned it? To me?"
"Why, yes. One hears of such things."
"But it is my money!" she cried, stiffening.
"You paid that for the stock."
She shook her head helplessly.
"I don't understand these things," she murmured. "If Jim had been alive
it wouldn't have happened. He was so careful."
"Husbands have some uses occasionally."
Suddenly she put her hands to her face.
"Oh, Mr. Tutt! Please get the money back from him. If you don't
something terrible will happen to Jessie!"
"I'll do my best," he said gently, laying his hand on her fragile
shoulder. "But I may not be able to do it--and anyhow I'll need your
"What can I do?"
"I want you to go down to Mr. Badger's office to-morrow morning and tell
him that you are so much pleased with your investment that you would
like to turn all your securities over to him to sell and put the money
into the Great Geyser Texan Petroleum and Llano Estacado Land Company."
He rolled out the words with unction.
"But I don't!"
"Oh, yes, you do!" he assured her. "You want to do just what I tell
you, don't you?"
"Of course," she answered. "But I thought you didn't like Mr. Badger's
"Whether I like it or not makes no difference. I want you to say just
what I tell you."
"Oh, very well, Mr. Tutt."
"Then you must tell him about the note, and that first it will have to
be paid off."
"And then you must hand him a letter which I will dictate to you now."
She flushed slightly, her eyes bright with excitement.
"You're sure it's perfectly honest, Mr. Tutt? I wouldn't want to do
"Would you be honest with a burglar?"
"But Mr. Badger isn't a burglar!"
"No--he's only about a thousand times worse. He's a robber of widows and
orphans. He isn't man enough to take a chance at housebreaking."
"I don't know what you mean," she sighed. "Where shall I write?"
Mr. Tutt cleared a space upon his desk, handed her a pad and dipped a
pen in the ink while she took off her gloves.
"Address the note to the bank," he directed.
She did so.
"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 wistful little creature with great liquid eyes and a delicate
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
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
forced a lonely, half-demented old fellow with the fixed delusion that
he was a financier behind prison bars and left free the sharp slick
crook who had no bowels or mercies and would snatch away the widow's
mite and leave her and her consumptive daughter to die in the poorhouse.
Yet such was the case, and there they all were! Could you blame people
for being Bolsheviks? And yet old Doc Barrows was as far from a
Bolshevik as anyone could well be.
Mr. Tutt passed a restless night, dreaming, when he slept at all, of
mines from which poured myriads of pieces of yellow gold, of gushers
spouting columns of blood-red oil hundreds of feet into the air, and of
old-fashioned locomotives dragging picturesque trains of cars across
bright green prairies studded with cacti in the shape of dollar signs.
Old Doc Barrows was with him, and from time to time he would lean toward
him and whisper "Listen, Mr. Tutt, I'll tell you a secret! There's a
vein of gold runs right through my daughter's cow pasture!"
When Willie next morning at half past eight reached the office he found
the door already unlocked and Mr. Tutt busy at his desk, up to his
elbows in a great mass of bonds and stock certificates.
"Gee!" he exclaimed to Miss Sondheim, the 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
employer was merely sorting out and making an inventory 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 Indians and buffaloes, and of factories and
steamships 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 fresh and crisp,
with that faintly acrid smell which though not agreeable to the nostrils
nevertheless delights the banker's soul.
"Ah! Good morning to you, Mrs. Effingham!" Mr. Tutt cried, waving her in
when that lady was announced. "You are not the only millionaire, you
see! In fact, I've stumbled into a few barrels of securities
myself--only I didn't pay anything for them."
"Gracious!" cried Mrs. Effingham, her eyes lighting with astonishment.
"Wherever did you get them? And such exquisite pictures! Look at that
"It ought to have been a wolf!" muttered Mr. Tutt. "Well, Mrs.
Effingham, I've decided to make you a present--just a few pounds of
Chicago Water Front and Canadian Southern--those over there in that
pile; and now if you say so we'll just go along to your bank."
"Give them to me!" she protested. "What on earth for? You're joking, Mr.
"Not a bit of it!" he retorted. "I don't make any pretensions as to the
value of my gift, but they're yours for whatever they're worth."
He wrapped them carefully in a piece of paper and returned the balance
to Doc Barrows' dress-suit case.
"Aren't you afraid to leave them that way?" she asked, surprised.
"Not at all! Not at all!" he laughed. "You see there are fortunes lying
all about us everywhere 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 examiner
when Mr. Tutt, followed by Mrs. Effingham, entered the exquisitely
furnished boudoir where lady clients were induced by all modern
conveniences except manicures and shower baths to become 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
"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 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-frightened way, as
if she thought she was doing something 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 bundle 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 understanding what he was talking
"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--"
"I thought you never refused collateral, Mr. McKeever!" challenged Mr.
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
"How does it look, Mabel?" inquired the financier from behind his
massive mahogany desk covered 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 sharply. "Are you dissatisfied
with your twenty per cent?"
"Oh, no!" stammered the old lady. "Not at all! I just thought if I could
only get the note paid off at the Mustardseed Bank I might ask you to
sell the collateral and invest the proceeds in your gusher."
"Oh!" Mr. Badger beamed with pleasure. "Do you really wish to have me
dispose of your securities for you?"
He did not regard it as necessary to inquire into the nature of the
collateral. If it was satisfactory to the Mustardseed National it must
of course exceed considerably the amount of the note.
"Yes," answered Mrs. Effingham timidly; and she handed him the letter
dictated by Mr. Tutt.
"Well," replied Mr. Badger thoughtfully, after reading it, "what you ask
is rather unusual--quite unusual, I may say, but I think I may be able
to attend to the matter for you. Leave it in my hands and think no more
about it. How have you been, my dear Mrs. Effingham? You're looking
Mr. McKeever had about concluded his arrangements for welcoming the
state bank examiner when the telephone on his desk buzzed, and on taking
up the receiver he heard the ingratiating voice of Alfred Haynes Badger.
"Is this the Loan Department of the Mustardseed 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?"
"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."
"In that case you'll get 'em," said Mr. McKeever gruffly. "I'll get
them out and have 'em ready for you."
* * * * *
"Here is my certified check for ten thousand; dollars," announced Alfred
Haynes Badger a few minutes later. "And here is the order from Mrs.
Effingham. Now will you kindly turn over to me all the securities?"
Mr. McKeever, knowing something of the reputation of Mr. Badger, first
called up the bank which had certified the latter's check, and having
ascertained that the certification was genuine he marked Mrs.
Effingham's note as paid and then took down from the top of his roll-top
desk the bundle of beautifully engraved securities given him by Mr.
Tutt. Badger watched him greedily.
"Thank you," he gurgled, stuffing them into his pocket. "Much obliged
for your courtesy. Perhaps you would like me to open an account here?"
"Oh, anybody can open an account who wants to," remarked Mr. McKeever
dryly, turning away from him to something else.
Mr. Badger fairly flew back to his office. The exquisite blonde had
hardly ever before seen him exhibit so much agitation.
"What have you pulled this time?" she inquired dreamily. "Father's
daguerreotype and the bracelet of mother's hair?"
"I've grabbed off the whole bag of tricks!" he cried. "Look at 'em!
We've not seen so much of the real stuff in six months.
"What are they?" asked Mabel curiously. "Some bonds--what?"
"I should say so!" he retorted gaily. "Say, girlie, I'll give you the
swellest meal of your young life to-night! Chicago Water Front and
Terminal, Great Lakes and Canadian Southern, Mohawk and Housatonic,
Bluff Creek and Iowa Central. '_Oh, Mabel_!'"
It was at just about this period of the celebration that Mr. Tutt
entered the outer office and sent in his name; and as Mr. Badger was at
the height of his good humor he condescended to see him.
"I have called," said Mr. Tutt, "in regard to the bonds belonging to my
client, Mrs. Effingham. I see you have them on the desk there in front
of you. Unfortunately she has changed her mind. She has decided not to
have you dispose of her securities."
Mr. Badger's expression instantly became hostile and defiant.
"It's too late!" he replied. "I have paid off her note and I am going to
carry out the rest of the arrangement."
"Oh," said Mr. Tutt, "so you are going to sell 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. "Anyhow 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
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 inform 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 client
can go straight to hell. _You_ can keep the money; _I'll_ keep the
Mr. Tutt sighed and shook his head hopelessly.
Then he put the bills back into his pocket and started slowly for the
"You absolutely and finally decline to give up the securities?" he asked
"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 realized before what an unscrupulous man you were!
Anyhow, I'm glad to have had a look at you. By the way, 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 flim flam Mrs.
Effingham with out of her ten thousand dollars. Maybe you can use it on
someone else! Anyhow, she's about two thousand dollars to the good. It
isn't every widow who can get twenty per cent and then get her money
back in full."
The Hepplewhite Tramp
"No freeman shall be taken, or imprisoned, or disseized
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,
--THE THREE BEARS.
One 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
shrinking debutante from the coarse universe of fact. Being thus
shielded from every annoyance and irritation by a host of sycophants he
lived serenely in an atmosphere of unruffled calm, gazing down benignly
and with a certain condescension from the 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
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. Hepplewhite did not like anything loud--not
even clothes. He was, as we have said, quite one of the nicest men in
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
Then "Mrs. Witherspoon!" intoned Bibby, and Mr. Hepplewhite rose
quickly, adjusted his eye-glass and came punctiliously forward.
"My dear Mrs. Witherspoon!" he exclaimed crisply. "I am really
delighted to see you. It was quite charming of you to give me this
"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
"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. Witherspoon--"
"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.
Witherspoon staying with him over the week-end. He was having a dinner
party for her that evening--of forty-eight. All that it had been
necessary for him to do to have the party was to tell Mr. Sadducee, his
secretary, that he wished to have it and direct him to send the
invitations from List Number 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 happen,
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 seconds one of the footmen would appear between
the tapestry portieres 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 something
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. Hepplewhite!" she gasped, staggering
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
extreme provocation. So he pressed an armchair upon her; or, rather,
pressed her into an armchair; 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
"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 muffled noises and suppressed ejaculations of "Aw,
come on there, now! I've got him, Mike! No funny business now, you! Come
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 between
them with grim firmness, by arm, neck and 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
"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 captain "Will you have your butler
act as complainant sir?" he asked.
"Why--yes--Bibby will do whatever is proper," agreed Mr. Hepplewhite.
"It will not be necessary 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 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 answered. "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 forehead by elevating
his eyebrows until he somewhat resembled an inquiring but good-natured
"That's plain enough," he replied. "The most highly cultivated people
are often the most unscrupulous. I go Oscar one better and declare that
there is a distinct relationship between crime and progress!"
"You don't say, now!" ejaculated Tutt. "How do you make that out?"
Mr. Tutt readjusted his spectacles and slowly selected a stogy from the
bundle in the dusty old cigar box.
"Crime," he announced, "is the violation of the will of the majority as
expressed in the statutes. The law is wholly arbitrary and depends upon
public opinion. Acts which are crimes in one century or country become
virtues in another, and vice versa. Moreover, there is no difference,
except one of degree, between infractions of etiquette and of law, each
of which expresses the feelings and ideas of society at a given moment.
Violations of good taste, manners, morals, illegalities, wrongs,
crimes--they are all fundamentally the same thing, the insistence on
one's own will in defiance of society as a whole. The man who keeps his
hat on in a drawing-room is essentially a criminal because he prefers
his own way of doing things to that adopted by his fellows."
"That's all right," answered Tutt. "But how about progress?"
"Why, that is simple," replied his partner. "The man who refuses to bow
to habit, tradition, law--who thinks for himself and acts for himself,
who evolves new theories, who has the courage of his convictions and
stakes his life and liberty upon them--that man is either a statesman, a
prophet or a criminal. And in the end he is either hailed as a hero and
a liberator or is burned, cast into prison or crucified."
Tutt looked interested.
"Well, now," he returned, helping himself from the box, "I never thought
of it, but, of course, it's true. Your proposition is that progress
depends on development and development depends on new ideas. If the new
idea is contrary to those of society it is probably criminal. If its
inventor puts it across, gets away with it, and persuades society that
he is right he is a leader in the march of progress. If he fails he goes
to jail. Hence the relationship between crime and progress. Why not say
that crime is progress?"
"If successful it is," answered Mr. Tutt. "But the moment it is
successful it ceases to be crime."
"I get you," nodded Tutt. "Here to-day it is a crime to kill one's
grandmother; but I recall reading that among certain savage tribes to do
so is regarded as a highly virtuous act. Now if I convince society that
to kill one's grandmother is a good thing it ceases to be a crime.
Society has progressed. I am a public benefactor."
"And if you don't persuade society you go to the chair," remarked Mr.
"To use another illustration," exclaimed Tutt, warming to the subject,
"the private ownership of property at the present time is recognized and
protected by the law, but if we had a Bolshevik government 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
Tutt robbed his forehead.