Tutt and Mr. Tutt/Hepplewhite Tramp

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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.


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 débutante 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 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. Hepplewhite 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.

"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. 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 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 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 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 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 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 muffled 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 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 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 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 owl.

"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. Tutt laconically.

"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 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 beginning a criminal—as every rebel is and perforce must be," he replied.

"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 revolution murder becomes execution and the murderers become belligerents. Therefore, as all real progress involves a change in or defiance of existing law, those who advocate progress are essentially 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, but—I also see the hole in your argument, which is that the fact that all progressives are criminals doesn't make all criminals progressive. Your proposition is only a half truth."

"You're quite wrong about my theory being a half truth," retorted Mr. Tutt. "It is fundamentally sound. The fellow who steals a razor or a few dollars is regarded as a mean thief, but if he loots a trust company or takes a million he's a financier. The criminal law, I maintain, is administered for the purpose of protecting the strong from the weak, the successful from the unsuccessful the rich from the poor. And, sir"—Mr. Tutt here shook his fist at an imaginary jury—"the man who wears a red necktie in violation of the taste of his community or eats peas with his knife is just as much a criminal as a man who spits on the floor when there's a law against it. Don't you agree with me?"

"I do not!" replied Tutt. "But that makes no difference. Nevertheless what you say about the criminal law being devised to protect the rich from the poor interests me very much—very much indeed But I think there's a flaw in that argument too, isn't there? Your proposition is true only to the extent that the criminal law is invoked to protect property rights—and not life and liberty. Naturally the laws that protect property are chiefly of benefit to those who have it—the rich."

"However that may be," declared Mr. Tutt fiercely, "I claim that the criminal laws are administered, interpreted and construed in favor of the rich as against the liberties of the poor, for the simple reason that the administrators of the criminal 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 statesman and prophet from going to prison," said Tutt. "The name of the last one was Solomon Rabinovitch—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 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. Everybody'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. Anyhow 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 Avenue—that great stone one with the driveway?"

The Tutts nodded.

"Well, it appears that the prisoner—our prospective 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 stole over him. He hated to go away, he says, and he meditated no wrong. But he wanted to see what it was like upstairs.

"So up he went. It was like the palace of 'The Sleeping Beauty.' Everywhere his eyes were soothed by the sight of hothouse plants, marble floors, priceless rugs, luxurious divans——"

"Stop!" cried Tutt. "You are making me sleepy!"

"Well, that's what it did to him. He wandered along the upper hall, peeking into the different rooms, until finally he came to a beautiful chamber finished entirely in pink silk. It had a pink rug—of silk; the furniture was upholstered in pink silk, the walls were lined with pink silk and in the middle of the room was a great big bed with a pink silk coverlid and a canopy of the same. It seemed to him that that bed must have been predestined for him. Without a thought for the morrow he jumped into it, pulled the coverlid over his head and went fast asleep.

"Meanwhile, at tea time Mrs. De Lancy Witherspoon arrived for the week-end. Bibby, the butler, followed by Stocking, the second man, bearing the hand luggage, escorted the guest to the Bouguereau Room, as the pink-silk chamber is called."

Mr. Bonnie Doon, carried away by his own powers of description, waved his hand dramatically 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!' 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 underneath 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 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 overzealousness which the officers of the law exhibit in protecting the privileges and property of the rich. If John De Puyster Hepplewhite fell asleep in somebody'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 presumed to be innocent? Not much! He is presumed 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, indicted by a grand jury, and tried for felony! Ye gods! 'Sweet land of liberty!'"

"Well, he hasn't been tried yet," replied Bonnie Doon. "If you feel that way about it why don't you defend him?"

"I will!" shouted Mr. Tutt, springing to his feet. "I'll defend him and acquit him!"

He seized his tall hat, placed it upon his head and strode rapidly through the door.

"He will too!" remarked Bonnie, winking at Tutt.

"He thinks that tramp is either a statesman or a prophet!" mused Tutt, his mind reverting to his partner's earlier remarks.

"He won't think so after he's seen him," replied Mr. Doon.

It sometimes happens that those who seek to establish great principles and redress social evils involve others in an involuntary martyrdom far from their desires. Mr. Tutt would have gone to the electric chair rather than see the Hepplewhite Tramp, as he was popularly called by the newspapers convicted of a crime, but the very fact that he had become his legal champion interjected a new element into the situation, particularly as O'Brien, Mr. Tutt's arch enemy in the district attorney's office, had been placed in charge of the case.

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 forgotten 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, accusing the police and district attorney of being trucklers to the rich and great, and oppressors of the poor—law breakers, in fact—O'Brien found himself 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 Hepplewhite 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.

"One thing is sure—if we turn him out now Tutt will sue us all for false arrest and put the whole administration on the bum," snarled O'Brien.

"But I didn't know the tramp would get Mr. Tutt to defend him," expostulated the captain. "Anyhow, ain't it a crime to go to sleep in another man's bed?"

"If it ain't it ought to be!" declared his plain-clothes man sententiously. "Can't you indict him for burglary?"

"You can indict all day; the thing is to convict!" snapped Peckham. "It's up to you, O'Brien, to square this business so that the law is vindicated—somehow It must be a crime to go into a house on Fifth Avenue and use it as a hotel. Why, you can't cross the street faster than a walk these days without committing a crime. Everything's a crime."

"Sure thing," agreed the captain. "I never yet had any trouble finding a crime to charge a man with, once I got the nippers on him."

"That's so," interjected the plain-clothes man. "Did you ever know it was a crime to mismanage a steam boiler? Well, it is."

"Quite right," agreed Mr. Magnus, the indictment clerk. "The great difficulty for the perfectly honest man nowadays is to avoid some act or omission which the legislature has seen fit to make a crime without his knowledge. Refilling a Sarsaparilla bottle, for instance, or getting up a masquerade 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, otherwise 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."

"Well, I've no time to waste on tramp cases," remarked District Attorney Peckham. "I've something more important to attend to. Indict this fellow and send him up quick. Charge him with everything in sight and trust in the Lord. That's the only thing to be done. Don't bother me about it, that's all!"

Meantime Mr. Hepplewhite became more and more agitated. Entirely against his will and, so far as he could see, without any fault of his own, he suddenly found himself the center of a violent and acrimonious controversy respecting the fundamental and sacred rights of freemen which threatened to disrupt society and extinguish the supremacy of the dominant local political organization.

On the one hand he was acclaimed by the conservative pulpit and press as a public-spirited citizen who had done exactly the right thing—disinterestedly enforced the law regardless of his own convenience and safety as a matter of principle and for the sake of the community—a moral hero; on the other, though he was president of several charitable organizations and at least one orphan asylum he was execrated as a heartless brute, an oppressor of the poor, an octopus, a soulless capitalist who fattened on the innocent and helpless and who—Mr. Hepplewhite was a bachelor—probably if the truth could be known lived a life of horrid depravity and crime.

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 enormous 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 subpœnaed and the nervous excitement attendant upon that operation nearly caused his collapse. For he was thereby commanded 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 prosecuted 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. Hepplewhite.

"I suppose you'll have to go to court. You can't help that, you know, if you've been subpœnaed. But you can't testify to anything that I can see. It's just a formality."

"Formality!" groaned his client. "Well, I supposed the arrest was just a formality."

Mr. Edgerton smiled again rather unconvincingly.

"Well, you see, you can't always tell what will happen when you once start something," he began.

"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 hundred 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 hundred 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 subpœna by Tutt & Tutt; and his distress was not lessened by the crowd of reporters who joined him at the entrance 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 feeling that he and not Schmidt was the actual defendant 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 circumstances not amounting to a burglary but with intent to commit a felony, as follows:

"Therefore, to wit, on the eleventh day of January in the year of our Lord one thousand nine 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 Hepplewhite 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!" whispered 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.

However, when the assistant district attorney opened the People's case to the jury Mr. Hepplewhite began to feel much more at ease. Indeed O'Brien made it very plain that the defendant had been guilty of a very grievous—he pronounced it "gree-vious"—offense in forcing his way into another man's private house. It might or might not be burglary—that would depend upon the testimony—but in any event it was a criminal, illegal entry and he should ask for a conviction. A man's house was his castle and—to quote from that most famous of orators and statesmen—Edmund Burke—"the wind might enter, the rain might enter, but the King of England might not enter!" Thus Schmidt could not enter the house of Hepplewhite without making himself amenable to the law.

Hepplewhite was filled with admiration for Mr. O'Brien, and his drooping spirits reared their wilted heads as the prosecutor called Bibby to the stand and elicited from him the salient features of the case. The jury was vastly interested in the butler personally, as well as his account rendered in the choicest cockney of how he had discovered Schmidt in his master's bed. O'Brien bowed to Mr. Tutt and told him that he might cross-examine.

And then it was that Mr. Hepplewhite discovered why he had been haunted by that mysterious feeling of guilt; for by some occult and subtle method of suggestion on the part of Mr. Tutt, the 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 fastnesses of the Bouguereau Room when he was discovered that he made no attempt to escape, that he did not assault anybody and that he had appeared comatose from exhaustion; that there was no sign of a break anywhere, and that the pair of opera glasses "worth five dollars apiece"—Tutt invited the court's attention to this ingenuous phraseology 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.

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 suggested 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. Everybody 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 adversary who looked scornfully from Hepplewhite to the jury and then from the jury back to Hepplewhite as if to say: "Look at him! Call you this a man?"

"You are the Mr. Hepplewhite who has been referred to in the testimony as the owner of the house in which the defendant was found?" inquired O'Brien.

"Yes—yes," answered Mr. Hepplewhite deprecatingly.

"The first witness—Bibby—is in your employ?"

"Yes—yes."

"Did you have a silver tea set of the value of—er—at least five hundred dollars in the house?"

"It was worth fifteen thousand," corrected Mr. Hepplewhite.

"Oh! Now, have you been served by the defendant's attorneys with a summons and complaint in an action for false arrest in which damages are claimed in the sum of one hundred thousand dollars?"

"I object!" shouted Mr. Tutt. "It is wholly irrelevant."

"I think it shows the importance of the result of this trial to the witness," argued O'Brien perfunctorily. "It shows this case isn't any joke—even if some people seem to think it is."

"Objection sustained," ruled the court. "The question is irrelevant. The jury is supposed to know that every case is important to those concerned—to the defendant as well as to those who charge him with crime."

O'Brien bowed.

"That's all. You may examine, Mr. Tutt."

The old lawyer slowly unfolded his tall frame and gazed quizzically down upon the shivering Hepplewhite.

"You have been sued by my client for one hundred thousand dollars, haven't you?" he demanded.

"Object!" shot out O'Brien.

"Overruled," snapped the court. "It is a proper question for cross-examination. It may show motive."

Mr. Hepplewhite sat helplessly until the shooting was over.

"Answer the question!" suddenly shouted Mr. Tutt.

"But I thought——" he began.

"Don't think!" retorted the court sarcastically. "The time to think has gone by. Answer!"

"I don't know what the question is," stammered Mr. Hepplewhite, thoroughly frightened.

"Lord! Lord!" groaned O'Brien in plain hearing of the jury.

Mr. Tutt sighed sympathetically in mock resignation.

"My dear sir," he began in icy tones, "when you had my client arrested and charged with being a 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 Hepplewhite "Really I didn't. I assumed that they knew what to do under such circumstances. I didn't suppose they needed any authority from me."

Mr. Tutt eyed sideways the twelve jurymen.

"Trying to get out of it, are you? Attempting to avoid responsibility? Are you thinking of what your position will be if the defendant is acquitted—with an action against you for one hundred thousand dollars?"

Ashamed, terrified, humiliated, Mr. Hepplewhite almost burst into tears. He had suffered a complete moral disintegration—did not know where to turn for help or sympathy. The whole world seemed to have risen against him. He opened his mouth to reply, but the words would not come. He looked appealingly at the judge, but the judge coldly ignored him. The whole room seemed crowded with a multitude of leering eyes. Why had God made him a rich man? Why was he compelled to suffer those terrible indignities? He was not responsible for what had been done—why then, was he being treated so abominably?

"I don't want this man punished!" he suddenly broke out in fervent expostulation. "I have nothing against him. I don't believe he intended to do any wrong. And I hope the jury will acquit him!"

"Oho!" whistled Mr. Tutt exultantly, while O'Brien gazed at Hepplewhite in stupefaction. Was this a man?

"So you admit that the charge against my client is without foundation?" insisted Mr. Tutt.

Hepplewhite nodded weakly.

"I don't know rightly what the charge is—but I don't think he meant any harm," he faltered.

"Then why did you have the police put him under arrest and hale him away?" challenged Mr. Tutt ferociously.

"I supposed they had to—if he came into my house," said Mr. Hepplewhite. Then he added shamefacedly: "I know it sounds silly—but frankly I did not know that I had anything to say in the matter. If your client has been injured by my fault or mistake I will gladly reimburse him as handsomely as you wish."

O'Brien gasped. Then he made a funnel of his hands and whispered toward the bench: "Take it away, for heaven's sake!"

"That is all!" remarked Mr. Tutt with deep sarcasm, making an elaborate bow in the direction of Mr. Hepplewhite. "Thank you for your excellent intentions!"

A snicker followed Mr. Hepplewhite as he dragged himself back to his seat among the spectators.

He felt as though he had passed through a clothes wringer. Dimly he heard Mr. Tutt addressing the court.

"And I move, Your Honor," the lawyer was paying, "that you take the counts for burglary in the first, second and third degrees away from the jury on the ground that there has been a complete failure of proof that my client broke into the house of this man Hepplewhite either by night or by day, or that he assaulted anybody or stole anything there, or ever intended to."

"Motion granted," agreed the judge. "I quite agree with you, Mr. Tutt. There is no evidence here of any breaking. In fact, the inferences are all the other way."

"I further move that you take from the consideration of the jury the remaining count of illegally entering the house with intent to commit a crime and direct the jury to acquit the defendant for lack of evidence," continued Mr. Tutt.

"But what was your client doing in the house?" inquired the judge. "He had no particular business in it, had he?"

"That does not make his presence a crime, Your Honor," retorted the lawyer. "A man is not guilty of a felony who falls asleep on my haycock. Why should he be if he falls asleep in my bed?"

The judge smiled.

"We have no illegal entry statute with respect to fields or meadows, Mr. Tutt," he remarked good-naturedly. "No, I shall be obliged to let the jury decide whether this defendant went into that house for an honest or dishonest purpose. It is clearly a proper question for them to pass upon. Proceed with your case."

Now when, as in the case of the Hepplewhite Tramp, the chief witness for the prosecution throws up his hands and offers to repay the defendant for the wrong he has done him, naturally it is all over but the shouting.

"There is no need for me to call the defendant," Mr. Tutt told the court, "in view of the admissions made by the last witness. I am ready to proceed with the summing up."

"As you deem wise," answered the judge. "Proceed then."

Through a blur of sight and sound Mr. Hepplewhite dimly heard Mr. Tutt addressing the jury and saw them lean forward to catch his every word.

Beside him Mr. Edgerton was saying protestingly: "May I ask why you made those fool statements on the witness stand?"

"Because I didn't want an innocent man convicted," returned Mr. Hepplewhite tartly.

"Well, you'll get your wish!" sniffed his lawyer. "And you'll get soaked for about twenty thousand dollars for false arrest!"

"I don't care," retorted the client. "And what's 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 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 privileged 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.

"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 behind 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 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 carelessly. "I've done three or four bits. I'm a burglar. But you can't give me more than a year for illegal entry."

"That is quite true," admitted His Honor stiffly. "And it isn't half enough!" He hesitated. "Perhaps under the circumstances you'll tell us what you were doing in Mr. Hepplewhite's bed?"

"Oh, I don't mind," returned the defendant with the superior air of one who has put something over. "When I heard the guy in the knee breeches coming up the stairs I just dove for the slats and played I was asleep."

Leaving the courthouse Mr. Tutt encountered Bonnie Doon.

"Young man," he remarked severely, "you assured me that fellow was only a harmless tramp!"

"Well," answered Bonnie, "that's what he said."

"He says now he's a burglar," retorted Mr. Tutt wrathfully. "I don't believe he knows what he is. Did you ever hear of such an outrageous verdict? With not a scrap of evidence to support it?"

Bonnie lit a cigarette doubtfully.

"Oh, I don't know," he muttered. "The jury seems to have sized him up rather better than we did."

"Jury!" growled Mr. Tutt, rolling his eyes heavenward. "'Sweet land of liberty!'"

This work is in the public domain in the United States because it was published before January 1, 1926.


The author died in 1945, so this work is also in the public domain in countries and areas where the copyright term is the author's life plus 75 years or less. This work may also be in the public domain in countries and areas with longer native copyright terms that apply the rule of the shorter term to foreign works.