Читать книгу Yankee Lawyer: the Autobiography of Ephraim Tutt - Arthur Train - Страница 6

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The sun was setting as Angus and I, pumping hard on our safety bicycles, crested Schoolhouse Hill above Pottsville, and coasted down the long descent to the town. Westward I could look for miles over the checkered, gold-drenched valley of the Mohawk, while to the north the bend of the river shone like a newly ground scythe under the purple barrier of the Broadalbin hills. As we dismounted beside the sagging veranda of the old hotel a pleasant-faced, middle-aged woman came out and began beating an immense brass gong with a padded stick, the reverberation from which rattled across the square and galvanized into life the single somnolent guest who sat tilted in a rocker with his feet upon the balustrade.

“That’s Ma Best!” said Angus. “One of the finest women in the United States.—Hello, Ma! Meet my friend Eph Tutt. He’s thinking of settling in Pottsville.”

“I hope he’s right in the head!” she laughed. “Anyhow I’ll do my best to make him comfortable.” And she did—for four long and fairly happy years.

After supper Angus and I strolled down street to give the place the once over. The Phoenix House, Angus said, had enjoyed a period of great prosperity during Stagecoach days. It had been the change station on the last leg of the Albany run from Utica and in the big stable were fifty-six stalls, but with the coming of the railroad its glory had departed.

The single unpaved thoroughfare, arched by elms and maples, ended in a square surrounded by a neo-classic courthouse with squat Doric pillars, a white church with a Wren spire, a red brick block, and a row of wooden stores with parti-colored rectangular false fronts. The farmers who had driven into town in runabouts, gigs, and buggies for the evening mail were swapping yarns on the edge of the octagonal horse-trough. The clop-clop of hooves, the jingle of trace-chains, the creak of ox carts, the scent of hay and timothy, the shrill of locusts, the rusty, hesitating clang of the village clock, all reminded me of home. 41 Already I had lost my heart to the little town, so like a Currier & Ives print of the 1850’s. It looked like a good place to live. Whether it would prove an equally good place to practice law was another matter.

Next day Angus, having shown me his favorite pools on Chasm Brook, pedalled off to the Adirondacks, while I settled myself comfortably in a corner room at Ma Best’s overlooking the square, for which, with meals included, she charged me $7 per week. Ma ran the hotel herself without assistance save for her daughter Betty, a smart girl of fifteen, Willie Toothaker, a toothless, freckled, red-headed urchin who was something of a mechanical genius, and Joe, a Negro boy who looked after the horses, handled the luggage and, since there was no electricity in the town, cleaned the kerosene lamps. Between them they did all the work and did it very well, except during such periods as the hotel was over-crowded owing to the circus or a trial term of the Supreme Court. There were rarely more than half a dozen guests, usually “drummers,” and when Ma had washed up after supper I used to sit in her front room with its framed worsted mottoes and parlor organ and talk with her until bedtime.

At that time there was only one lawyer in the town, Hezekiah Mason, a thick-set, ruddy faced man of about my own age, with a spade beard, a square derby hat, and a curt manner.

“He’s got all the law business now, such as it is,” Ma explained to me. “He’s smart all right, but personally I wouldn’t trust him around the corner. It was a pity old Judge Wynkoop had to die. He was a great man and the biggest lawyer this side of Albany. No one would ha’ thought of goin’ to Mason while the Judge was alive, even if he was eighty-two. His office was right across the street from here—that sort of little temple with green shutters and pillars? I’ve got the key. Want to take a look at it?”

The dust rose in clouds, and a dead squirrel dropped off the window sill, as I pushed open the shutters and let the daylight stream into Judge Wynkoop’s former demesne. For a moment I could almost imagine myself back in Boston at Mr. Tuckerman’s. Books lined the walls to the ceiling on three sides, a Franklin stove stood in a corner and a black walnut desk between the windows. In the rear was a coal bin and small coat 42 closet. Save that all his private papers had been removed the place doubtless was exactly as the Judge had left it.

I rented the Greek Temple for $5 per month, books and all, and nailed up my first sign—black letters on a white ground—on the horse-chestnut tree in front—“Ephraim Tutt—Attorney and Counsellor-at-law.” All I needed was clients.

The town, although I did not realize it then, was a museum piece, more New England than New England itself. It had been settled in the early 1700’s by Dutch and English pioneers, augmented a century later by less hardy adventurers who dropped—or perhaps fell after an extra heavy slug of “black-strap”—off their covered wagons on the great trek along the Mohawk Valley from the eastern seaboard to the west. Its detailed history may be found in the records of the dispute between the Schenectady and Kayaderosseras Patents in 1768. Arendt Van Corlear, a cousin of the great patroon, William Van Rensselaer, bought one hundred and twenty-eight square miles from Wagamoc, the Mohawk sachem, for “600 hands of good Whyte Wampum, six Koates of Duffels, thirty Barres of Lead, and nine Bagges of Powder,” and Pottsville occupies the exact site of Wagamoc’s village of Chuctanwemla. It lies on the south side of the Mohawk River, beneath a range of low hills through which run many streams—the largest, Chasm Brook, emptying into a lake half a mile in diameter known as Turtle Pond. The Indian trails and especially the Indian burying ground at Turkey Hollow are of more than local interest.

At that period there was little contact with the outside world. The town was 98 per cent Republican, but its chief interest in national politics arose out of the fact that President Grover Cleveland had been sheriff of nearby Buffalo. The Albany paper arrived on the early morning train, but the Pottsville Weekly Clarion, which appeared on Saturdays, contained only local items and was given over mostly to advertisements. There were four churches, all well-attended, and a small hospital, but there was no public place of amusement and no liquor was sold. While Pottsville was the county town and the center of litigation, there seemed at the moment to be little need for my services.

I was a mature and presumably well-educated young man, who for three years had studied such profound and esoteric doctrines 43 as “cy pres” and “equitable conversion,” yet not since my boyhood had I heard a case tried in court. I did not know how to frame a complaint or answer, to draw a will or a lease, or even how to fill out a summons or subpoena. I was like some young lady who, having taken cooking lessons, could prepare a “côtellette d’Agneau à la soubise” but was unable to fry an egg. How was I ever going to learn? Luckily, between my advent in the town and my first employment as an attorney I had time to familiarize myself with the simpler forms in Judge Wynkoop’s books and the more elementary sections of the Code of Practice and Pleading. I also made a daily habit of hanging around the justice’s court.

My shingle swayed in the breeze for several weeks without flagging any clients, and I had plenty of time to explore the possibilities of the neighboring brooks. My new fellow townsmen were friendly but showed no disposition to beat a path to the door of my office, and I began to wonder what made them so shy of me. Did I, perhaps, look too young to be a lawyer? Then one day while poking about in Judge Wynkoop’s closet I stumbled upon an old stovepipe hat and ivory-headed cane which must have been his. The hat was shabby and cracked, and the silk was so ruffed and worn that in spots it was almost bare, but it fitted me exactly. “Well,” thought I, “it won’t cost me anything to wear it and see what happens.”

That evening I paraded around the square and, strangely enough, the very next morning acquired a client. He was a house painter named Hiram Watkins who six months before had consulted Dr. J. Otis Osgood, the town’s leading physician, about a wen the size of a marble which had unexpectedly appeared in the middle of his forehead, greatly to the disadvantage of his appearance. The doctor had offered to remove the wen for the inclusive price of fifteen dollars, but since Watkins did not have the money and the doctor’s office needed touching up, it had been agreed that the former should give it two coats of the right shade, after which the doctor should remove the wen. The painter had made an excellent job of it, but, to his dismay, when he had finished, the wen had disappeared.

Although gratified at what nature had thus performed free of charge, Watkins, who had spent over seven dollars in paint, felt 44 that Dr. Osgood ought at least to compensate him for his materials. The doctor for his part maintained, reasonably enough, that he had not agreed to pay cash money for having his office renovated but only to remove a wen, and this he was ready to do. He even offered to remove any other wen Watkins might have upon his anatomy now, or hereafter, or to do the same thing for one of his relatives. Watkins, who had neither wen nor relatives, felt greatly aggrieved. He had laid his complaint before Mason who, since Dr. Osgood was one of his best paying clients, had shooed him out of his office. It was at this point that, convinced there was no such thing as justice in the world, he had observed me stalking about in Judge Wynkoop’s stovepipe hat and, learning that I was a lawyer, he had decided to consult me.

It will be seen that a highly delicate question was involved. The doctor had profited by an undertaking which he was ready and willing to perform but which nature had intervened to render impossible. It was true that this was not his fault, but neither was it that of Watkins. While the law would regard the doctor’s mere promise to remove the wen as a sufficient consideration to support a contract, it was clearly the intent of both parties that he should actually delete it in return for having Watkins paint his office. Would the law imply an understanding that, if he were prevented from paying for the paint job in the method agreed upon, he should do so in another? Although such decisions as I could find were against me, I nevertheless felt that in all justice Dr. Osgood should do something to recompense my client for his time and materials.

The issue had been hotly debated from every angle at the grocery store and around the village horse-trough, and the Rev. Gamaliel Drum, one of the local preachers, who never lost an opportunity to advertise his own sanctity by fulminating against the backslidings of others, had even gone so far as to deliver a sermon aimed at the doctor, based on Matthew 25:24; “I know thee that thou art a hard man, reaping where thou has not sown.” As a result, on the morning of the trial the Justice Court was packed with eager townsfolk.

“Squire” Dow, who was to determine the issue, was the owner of the local Hay & Feed Store. It was one of his earlier cases—he 45 had only recently been elected a justice of the peace—and he was anxious to make a good impression. For a similar reason so was I. It was the first time I had ever appeared at the bar in Pottsville; I was careful to do so in full regalia; and I suspect that Judge Wynkoop’s stovepipe hat and ivory-headed cane impressed the feed-store proprietor quite as much as my argument on the law.

The testimony of the parties having been given I addressed a fervent plea to the conscience of the court. My client, I urged, had not only squandered many hours which he might otherwise have devoted to his wife and children, but had paid out of his own pocket for the paint used to redecorate the doctor’s office and increase the latter’s earning capacity. The disappearance of the wen was clearly an act of God and thus the case, as the learned justice of course well knew, became one of “unjust enrichment” for which the law would furnish redress by applying the ancient doctrine of “quantum meruit.” My argument was received with audible approval by the audience and since Dr. Osgood had not regarded the claim as of sufficient importance to justify the retention of counsel, Squire Dow delivered judgment in the following terms:

“If Doc Osgood don’t pay Hi Watkins for this paint job, he’ll be gittin’ som’p’n fer nuthin’ which, as Lawyer Tutt pints out, is agin’ justice and ekkity. O’ course if they had both knowed the wen might go away of its own accord they’d hev’ planned accordin’. But as they didn’t, the law will make sich arrangements for ’em. Figurin’ Hi’s time at fifty cents an hour and paint at wholesale rates with five per cent discount fer cash, my judgment is fer the plaintiff in the sum of fifteen dollars and thirty cents, without costs.”

The news of this triumph of justice, if not of law, swept through the town and became the principal topic of conversation. Behold, I might have sat for months smoking my stogies in my small Grecian temple, when Presto! through the fortuitous combination of a wen, a paint job, a stovepipe hat and a few ambiguous Latin phrases I became locally famous. It was as if a minor mantle of Judge Wynkoop’s had descended upon me—as indeed it had. From that day I took my place alongside Judge Tompkins, the Rev. Drum, Dr. Osgood, Lawyer Mason, and the rest of the elite as “Lawyer Tutt.” God moves in a 46 mysterious way. And when, a few weeks later, the wen suddenly reappeared upon Hi Watkins’ forehead and the doctor, thereupon, promptly removed it for a fee of fifteen dollars and thirty cents, everyone perceived that “Squire” Dow’s decree had received the approval of the Almighty and my reputation was enhanced accordingly. Thereafter I had no dearth of clients, although few were of the fee-paying variety.

The most notable figure in the town was old Judge Tompkins of Utica, who during the sittings of the Supreme Court boarded at the Phoenix. He was not a great lawyer, but he was gentle, kindly and not averse to straining a point to achieve what he regarded as a just result. He was fond of fishing and during term time he and I spent many a Saturday and Sunday on Chasm Brook, where I confess we did not always abstain from the discussion of cases. If, as it is sometimes asserted, lawsuits today are won on golf courses, I am afraid that in those days I won a good many sitting on one end of a log with the Judge on the other, while we gave the trout a rest. One day Willie Toothaker threw a baseball which came so near Tompkins that, although he ducked, it knocked off his tall hat. All he said was: “Only think, Willie! If I had been an upright judge you might have killed me!”

The Judge having been a country lawyer himself took a fatherly interest in my career, encouraging me to believe that I could not only earn my living in Pottsville, but be of genuine service to the community. He was well versed in Greek and Roman literature and, since I had stood well in the classics at Black River and had continued to study them at college, we often read Ovid and Terence, Plato and Aristotle together in the evenings. After his thirty years on the bench he was wise, tolerant and mellow, with a high regard for human nature.

His general view was, I believe—like that of Justice Holmes—that whatever social or economic theories people might hold, and however bitterly they fought over them, they ought to have a chance to test them and that in the long run things would probably come out much the same. I remember asking him whether if he had his life to live over again he would do anything different. He thought a long time. Then he gave a quiet smile and said: “I think I’d go fishing about twice as often!”

In a rural community each of the inhabitants has an opportunity 47 to develop his own individuality; there is no class to which he must conform. The city produces types, the village what are known as “characters.” Pottsville had the usual quota.

Constable Moses Higgins, who spent most of his time lounging around the hotel, soon became my firm ally. He was a tall, gawky, tow-headed man, and was paid by the fee system, his business being to serve papers, run errands, and keep track of jurymen and witnesses. Since he was highly popular he bid fair to be a hardy perennial as an officeholder. The relationship between us was, I confess, equivocal, although Mose strictly differentiated between his services as a constable for which I paid him his regular fees, and those he rendered ex-officio as a friend. It was inevitable, however, that he should profit indirectly by acting as what in the city would be called a “runner.” He often accompanied me on my excursions and, because he disliked Mason, took delight in steering clients in my direction. I remember once his bringing in a farmer named Wasgatt on whose cow a chattel mortgage was about to be foreclosed. I managed to save the cow for him and in return, since he had no money, he told me of a pool, known only to himself, in which lurked an enormous trout. The next afternoon, taking Mose along with me, I went there and was lucky enough to hook it on my first cast. It weighed three and a half pounds and put up a fight lasting nearly half an hour. As Mose finally netted it he grinned at me and remarked: “Well—there’s Wasgatt’s cow!”

Old Eben Pillsbury drove the only public vehicle in Pottsville. His charge for any trip within the town limits—a radius of at least two miles—was twenty-five cents. On Fair Days his ancient carry-all bulged with passengers—three or four on each seat and others hanging on the steps. One day I was taken aback by his asking thirty cents for taking me to the “deppo.”

“Used to be a quarter,” he explained apologetically. “But there weren’t enough money in it.”

Among my first clients was William C. Gookin, famous as a “joiner,” a pompous man whose lapels were crowded with emblems. He was known as “Toggery Bill” for the reason that he was proprietor of the “Boston Store,” the largest haberdashery shop in Pottsville. Cyrus Pennypacker, who ran the “Art Foto Saloon,” was another. Cy was a plucked chicken of a man, with watery gray eyes and a protuberant, ambulatory Adam’s apple, 48 of the type later immortalized by Webster in “Caspar Milquetoast.” As the henpecked husband of Mason’s only sister Saphrony, he had the sympathy of most of the male inhabitants of Pottsville and also their admiration as a would-be Don Juan, for Cy, according to local tradition, had once had the unexpected bravado to invite Zayda, the handsome wife of “One-Eyed Pedro,” chief of the Zingara Gypsies—with the alleged consent of her husband—to pose for some of his “art fotos.” Saphrony had unexpectedly interrupted the sitting and Cy had never heard the last of it.

“Patrons of Husbandry Hall No. 769,” a three-story brick building, filled half of one side of the village square. Colson’s grocery occupied the left-hand street corner and Thompson’s tobacco shop, with its wooden effigy of King Wagamoc, the other. The Hall, owned by a quasi-Masonic order known as the “Sacred Camels of King Menelik,” had a tin cornice, resembling a somewhat dingy tiara, on which was painted a jagged range of bright blue hills emblematical of “The Purple Mountains of Abyssinia” of whose esoteric brotherhood the Camels constituted a chapter. Both “Toggery Bill” and Pennypacker, as well as Mose Higgins, were members in good standing, and largely through their determined opposition Mason, in spite of his local prominence, had never been elected. Since they enthusiastically supported my candidacy I achieved this distinction within six months of my advent in Pottsville. As a result, and partly owing to our professional rivalry, two factions grew up in the town, one headed by Mason, and the other, composed primarily of Sacred Camels, by myself.

There was in addition a “book club,” an “historical society,” a “grange,” a raft of church sociables, while regularly on Saturday nights a group of friendly spirits—including Dr. Osgood, “Toggery Bill” Gookin, and Judge Tompkins, when he was in town, conducted a small poker game in my office, enlivened by a modest consumption of “Old Doc Robinson’s Malt Extract.”

In the country doctors and lawyers often have to take their payment “in kind,” and during the four years of my practice in Pottsville I received in lieu of cash a total of several cart loads of apples, onions, turnips, beets and potatoes which I turned over to Ma Best. The most satisfactory of such fees—and the only 49 one I consumed almost entirely by myself—I received in what was called “a hoss case.”

The Somerset County Fair was the great annual event, drawing crowds to the race track and attracting visitors from Albany, Utica and even Buffalo to watch the trotting and pacing. At other times the fair grounds were turned over to the use of circuses, gypsy encampments, medicine shows or an occasional horse-traders’ caravan. The most colorful of these belonged to “Doc” Robinson, a spare old fellow with leathery skin, watery blue eyes, and a drooping walrus moustache which, like the long curling hair which fell below his collar, was jet black except at the roots. He wore a ten gallon hat, a greasy frock coat, soiled red waistcoat with tarnished silver buttons, and much shrunken checked trousers pulled over high boots. About once a year he drove into town in a yellow wagon, on which was painted in cerulean letters “The All Healing Salve & Pain Cure Robinson,” followed by a string of moth-eaten nags in charge of two Negro boys. Here today and gone tomorrow he would peddle a cure-all for half a dollar, or buy, sell or exchange “hoss-flesh.”

Nobody in Pottsville liked Doc, because even among horse traders he had a shady reputation—“Honor Among Hoss-Thieves,” so to speak. Doc, conversely, did not like human beings, but he loved horses and would watch over an ailing bone-bag with tenderest solicitude. In this he reminded me of my mother, and because of it I came to have a certain fondness for old Doc.

One morning he was arrested on the complaint of a farmer named Jake Perkins, who charged that, after he had purchased a gray mare from Doc one afternoon, the latter had returned the following night and stolen it. The mare had disappeared from the barn and Perkins declared that he had discovered her next morning among Robinson’s other horses down on the fair grounds. Doc vehemently insisted upon his innocence, protesting that the mare thus identified was another animal entirely. He was promptly indicted by the Grand Jury and lodged in jail, where being unable to furnish bail he remained, far less concerned over his own fate than over that of his horses. Could he have still legally insisted on a right to submit the question of his guilt or innocence to “wager of battle” or the “ordeal of water,” it is possible that the Almighty might have intervened to help 50 him. But alas! they had long since both been abolished.

Now I felt sure that Doc was not a horse-thief—at any rate not that kind of a horse-thief—and on his assurance that Perkins was absolutely mistaken I agreed to defend him on the charge of grand larceny. Admittedly the facts were against him. His story was that he had driven from Corinth with a caravan of thirteen horses, including a pair of whitish-gray mares with white bobbed tails. Passing Perkins’ farm he had sold him the off mare, then gone on to Pottsville, camped on the race track with the remaining twelve animals, and had never laid eyes on the mare again.

But Perkins swore not only that Doc had had but one gray mare instead of the two alleged, but that when he had found his purchase among the other horses on the race track a feeble attempt had been made to disguise her by the addition of a false tail, which had come off in his hand on being subjected to a slight pull. The sheriff had thereupon impounded the animal and put it in the Phoenix Hotel stable. It was a pot-bellied, sway-backed, miserable-looking creature, with thick fetlocks, an obvious spavin on the off hind hock, well defined collar marks on chest and withers and projecting yellow teeth. As David Harum might have said, the only evidence that it was a horse was the fact that it was not something else. I could not see any possibility of Doc’s acquittal, and yet something told me that he was telling the truth when he said the mare was not the same one that he had sold to Perkins.

On the morning of the trial Pottsville presented a spectacle akin to that on fair day. Every hoss-trader between Utica and Albany—which meant the entire male population of the Mohawk Valley—had come to town. The case was called and Jake Perkins told his story. On cross-examination I asked him if he had any doubt whatever that the mare he had found in the defendant’s possession was the one he had bought from him the afternoon before, and he replied positively that he could identify it anywhere. On my motion the court then adjourned to the Phoenix Hotel stable in order to give the jury an inspection of the stolen property. Here I pointed to the three nearest stalls from which projected the sunken rumps, gaunt hind legs and frayed bobbed tails of three gray scarecrows.

“Now show His Honor and the jury the mare you charge 51 Robinson with stealing from you,” I challenged.

Jake carefully studied the three cadaverous behinds and ran his hands down the knobbled legs, then solemnly unhitched each one and led her out onto the stable floor for further examination. Finally all three mares were placed side by side. Each had saddle marks on the withers, each a spavin on the off hind hock.

“Durn if I kin tell one from t’other!” he confessed.

“In that case,” ruled Judge Tompkins, “it is obvious that the witness’ testimony as to the identity of the mare found in the defendant’s possession is not of the required quality upon which to base a conviction for larceny. I therefore direct a verdict of not guilty.”

That evening after Doc’s discharge I asked him in my office why, if he had really had a pair of matched grays when he passed through Corinth, he had not called a witness to that effect, instead of allowing Perkins’ testimony to stand uncontradicted save for his own.

“Wa-al,” said Doc, lighting a fresh stogy, “Y’see, I got that team of mares under rather peculiar circumstances. In fact, it didn’t seem exactly advisable to let the owner know I had ’em. So I dyed ’em. They was piebalds ez fur ez Corinth, and then I cleaned up the off one and sold her to Perkins. After I got into Pottsville I fixed up the other one that same night—put a nice tail on her an’ all—ready to sell. Fust thing I knew, along came Perkins next mornin’ and claimed her fer hiz. But she warn’t! No, sir! When Perkins bought that off gray, the nigh one was a piebald.”

“I see,” I said, as the truth dawned upon me: “They were piebalds as far as Corinth and after that they became gray mares again? Anyhow you didn’t steal either of ’em from Perkins.”

Doc evaded my eye.

“Not from Perkins!” he murmured.

Doc lost no time in getting out of town and I never saw him again. He took with him the two scarecrows I had purchased as exhibits.[8] He had no cash himself to repay me, he said, but he 52 promised to sell them at the first good opportunity and remit the money. In lieu of a fee he placed in the wood-bin of my office a gross of his “All Healing Salve & Pain Cure” and another gross of “Old Doc Robinson’s Malt Extract” which he assured me had in it “considerable of the real stuff.” This last statement I found to be true, and although his brand is no longer on the market, I still find “malt extract” exceedingly beneficial. Two years later I received a money order for one hundred dollars from Memphis, Tennessee, enclosed in a note reading:

Jest sold yore pare hosses. This time they wuz chestnuts.

Doc.

Here let me pause to correct a false impression. Pottsville was in reality not at all the sort of “hick” town portrayed by my friend, Arthur Train, in his many stories of my legal adventures. In telling him my experiences as a young country lawyer it was perhaps only natural that, after forty years, I should have somewhat emphasized the rusticity of certain of my fellow townsmen, but this does not justify him in picturing life in Pottsville as a b’gosh melodrama or the entire male population as morons.

Pottsville was like any one of fifty thousand other villages of that era, composed for the most part of intelligent, wide-awake people, whose eye to the main chance was mitigated by a great deal of kindliness and even of generosity. There was, to be sure, plenty of malicious gossip and sharp dealing, but the woman who slandered her neighbor would be the first to bake a cake for her if she fell ill, and the man who drove the sharpest bargain was often a local philanthropist. Granted that some of my cases had a humorous aspect, I had plenty that were tragic. Reading Train’s stories one would think that the trial of a lawsuit in the Pottsville courthouse was inevitably a rollicking farce and that the Sacred Camels of King Menelik, who numbered many of the leading citizens, were a gang of yokels. In point of fact our meetings were conducted with a decorum that many similar orders in the metropolis might well have copied. A writer of fiction may perhaps be justified, when necessary to point a moral in making use of what is popularly known as “poetic license,” but 53 that cannot excuse the libel of an entire community.

The fact that my office was directly opposite the Phoenix House proved not only convenient, but generally advantageous. Such clients as came to me were apt to seek refreshment at the hotel, while guests in need of legal advice—and my beckoning sign frequently suggested to them the idea that they were—had only to cross the street. Between us Ma Best and I “got ’em coming and going.” In fact I could sit swapping yarns and smoking my stogies on the veranda until likely prospects hove in sight. Few paid me more than a dollar or two, and most of them nothing at all, but even these did not represent a total loss, since those who had no money often made up for it by confiding to me piscatorial secrets far in excess of the value of my services.

I was fortunate in being able, almost at once, to show my gratitude to Ma Best. Living at the hotel was her father, Cap Barrows, a cheery old soak with an insane glitter in his watery eye whenever the conversation turned on diamond mines, gushers, or the distillation of gold from sea-water.—“I seen ’em do it, I tell ye!” He had served part of a term in Sing Sing for swindling Somerset County farmers by means of worthless bonds—in the value of which he had implicitly believed—until at length a governor, more humane than the law, had pardoned him. Now at seventy-three he had come home to Ma and the Phoenix.

“I don’t want no more money!” he told me, carefully wrapping one of my stogies in an old envelope. “I ain’t never needed it! I know enough secrets to make me rich a dozen times over. All I want is justice—my legal rights. But I’m tired of fightin’ against ’em. They’ve beaten me! I shall retire and wait until my ship comes in!”

Cap’s ship never did come in. He became vaguer and vaguer. “Hi, Willie!” he’d call huskily to the Toothaker boy. “You go up to what’s-his-name’s—you know where ’tis—and fix those what-do-you-call-’ems!”

Everyone in town liked Cap except the Rev. Drum, who one day publicly referred to him as “an old crook.” Cap retaliated by calling the preacher “an old fool.” Drum, outraged, had Cap arrested for disorderly conduct and in addition brought an action against him for slander. I promptly countered with a similar suit against the minister, as well as an action for “false arrest.” While popular sympathy was strongly with Cap, it was assumed that he 54 would undoubtedly go to jail for insulting the cloth. Once more Judge Wynkoop’s old books proved a precious help in time of trouble, for I dug up a decision to the effect that, although the words “old fool” spoken with regard to a lawyer or doctor would affect his professional standing, they did not do so if spoken of a minister. As the old French law put it: “Parce que on peut estre bon parson et grand fou; d’un attorney aliter.” (“Because it is possible to be both a parson and a big fool as well; while it is otherwise with a lawyer.”)[9]

Having exonerated Cap I now pressed my action against Drum for calling him an “old crook” and causing his arrest, and although—in view of my client’s criminal record—it had seemed unlikely he could recover, I was able to satisfy Judge Tompkins that, since Cap had been pardoned, he was “in the eye of the law as innocent as if he had never committed the offense,”[10] and secured a verdict against the Rev. Drum for $100.

There is no better training for the law than general practice in a country town. I learned more in a single year in Pottsville than I would have in a decade in New York or Chicago, where I might have spent my time correcting the proof of corporate mortgages and perhaps never so much as seen the clients for whom I was working. In Pottsville on the contrary I was directly responsible for the advice I gave and, since I took everything that came my way, I had to familiarize myself with every sort of law, from contracts to breach of promise, undue influence, and domestic relations to trusts, mandamus, and “covenants running with the land.” I personally drafted every paper from the original summons to the final judgment; I hunted down the witnesses, interviewed them and arranged for their appearance in court; I made mistakes—often egregious ones—but I profited by them and acquired a vast amount of practical experience that I could have got in no other way. The entire life of the town unrolled before me in panorama. In time I became—along with the clergyman and the family doctor—father confessor to half the inhabitants. My pay in cash was negligible, but what I learned was beyond all price.

It was astonishing how one thing led to another. Because 55 Angus McGillicuddy had sent me to Ma Best and I lived at the Phoenix House, I naturally attended to its trifling legal matters without charge. Now the law of innkeepers goes back to the time of Robin Hood and illuminates the whole history of the English people, and my interest led me to such an intimate acquaintance with it, that I later became counsel to the Waldorf-Astoria Hotel Company in New York City. It is amusing that my retainer as representative of a great hotel system is directly due to my friendship with an elderly souse who lived across the hall from me my sophomore year at college.

My clients were simple people, the amounts of money involved were comparatively small, but these and their domestic troubles were of vital importance to them. I patched up many a quarrel between old friends, misunderstandings between husbands and wives, parents and children; I saved mortgages from foreclosure and notes from default, and I made many a skinflint pay through the nose. What my clients could not pay in dollars they made up in friendship, and at one time I stood godfather to so many local infants that I kept a supply of plated mugs, bought by the dozen, in Judge Wynkoop’s closet.

In a country town one has a first-hand opportunity to see how the law has actually developed. The primitive method of settling disputes was by brute force, and for thousands of years men simply fought it out singly or in families. As late as 1821 an Englishman accused of crime could claim his “wager of battle” and either challenge his accuser himself or select a champion to represent him. Even today in the United States, for great numbers of people, “prize-fight justice” is still all the justice there is.

The only dentist in Pottsville was Doc Pettibone, a sadistic old man with Chinese whiskers, whose office was a dingy torture chamber over the Art Foto Saloon. Doc would pull a tooth for twenty-five cents, but his low charge was merely a lure. Oblivious to his patient’s agonies and, in spite of the greater profit to be derived from excavating and filling, he preferred extraction as a matter of clean sport.

Jacob Bostwick, a gigantic farmer, had come in with a face swollen to the size of a wasps’ nest from the ulceration of a molar. Doc’s eyes gleamed and, tackling it with his forceps, he and his patient were soon floundering about the office and eventually 56 into the street. But when nature had surrendered to violence Doc discovered that he had pulled a perfectly good tooth!

Bostwick, who could have pulverized Pettibone with one hand, saw no reason to pay a lawyer to fight his battles for him. Having read somewhere about “an eye for an eye and a tooth for a tooth,” he now publicly insisted on his right to yank out one of Doc’s teeth in retaliation, and for a time it looked as if mayhem might result. Pettibone sought sanctuary in my office where I concealed him in the coal closet. It would have done no good to attempt to explain to Bostwick that, if he put his threat into execution, he would land in jail; he wanted the revenge to which he believed himself entitled. Now it happened that the “tooth for a tooth” doctrine is to be found not only in Leviticus but in the code of laws formulated[11] by Hammurabi, King of Babylon, in 2285 B.C., of which there was a copy among Judge Wynkoop’s ancient volumes. So I put it in my pocket and went in search of Bostwick.

“That law you are invoking is three thousand years old,” I informed him. “It has no application today.”

“It’s good enough for me!” he shouted.

“But you can sue Pettibone and get damages.”

“To hell with damages! It’s his tooth I want.”

“So you stand absolutely on the Lex Talionis?”

“I don’t know what that is, but I want the old law you talk about.”

“All right, then,” I said producing the book. “I’ll read it to you. ‘If a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out! If he has made the tooth of a poor man to fall out, he shall pay one-third of a mina of silver.’ Now, your case falls under the last clause because you are a poor man. You are entitled to a third of a mina of silver, but not to a tooth.”

Since he thought he had won his point about the law, Bostwick agreed to accept Hammurabi’s rule of damages, and we worked it out together, with the aid of Webster’s Dictionary. A mina was one-sixteenth of a talent, and a talent of Hebrew silver was the equivalent of $2,176 in United States money. Hence, a mina would be worth $136, and a third of a mina $45.35, which 57 Doc paid, gladly throwing in a rubber plate with a false tooth for good measure.

As my business grew in volume I found myself badly hampered for lack of clerical assistance. Since there were no typewriters in town, all my papers had to be copied in longhand, and this would have proved an intolerable burden had I not been able to avail myself of the hotel staff who were free to work for me in the evenings. Presently, when I found it necessary to have someone constantly on duty at the office, I took Willie on as a neophyte in my legal temple, and he became the nucleus of what later became the office force of Tutt & Tutt in New York City. I also employed Betty Best to act as my secretary whenever Ma could spare her from the hotel.

Much of my work consisted in drawing wills. I charged a dollar a will as against Mason’s two and a half, and before he knew it I had a majority of the testamentary intentions of Pottsville in my safe. Some people have a horror of making a will, since it directs their thoughts towards the churchyard. Hence they postpone the matter until, either it is too late, or has to be done hurriedly and without due consideration. Others are so obsessed by the importance of properly disposing of their property that they spend their lives making fresh wills, codicils and revocations. I had old women clients who made their wills regularly once a month. Even at only a dollar a throw it was not unprofitable, especially as most of the changes were slight.

“Few things show the human character in a more ridiculous light than the circumstances of will making,” says Hazlitt. “It is the latest opportunity we have of exercising the natural perversity of the disposition, and we take care to make a good use of it.” The testator can do as he likes and give what reasons he sees fit for doing it, without fear of a comeback.

Two hundred years ago the publication of a will was held “a very indecent proceeding” and a gross misuse of the facilities afforded by the probate court;[12] today, unless their contents were to be publicized, many wills would not be made at all. Some testators seek to gain posthumous credit for generosity by explaining that the reason they have not left larger bequests to charities or relatives is because of donations already “made during 58 my lifetime.” Others pursue an even more disingenuous method of creating an impression of benevolence.

I had one crafty old client who drew a succession of wills in which he bequeathed handsome legacies to everyone with whom he wished to curry favor, in some cases tossing in the additional tidbit of an executorship. The will having been drawn and executed, he would take it away and show it to the persons thus supposedly to be benefited. Having thereby solidified himself with A, B, and C, he would then draw another in favor of X, Y, and Z, revoking the first.

After all, it did not cost Old Man Chisholm a single dollar to play the part of an imaginary fairy-godmother to the whole town of Pottsville. When he died the chancel of the church was banked with flowers sent by expectant legatees, none of whom ever got a cent. This and similar incidents gave rise to the wise crack later popular among my office force that “the less they have the more they leave.” If any of my clients have gone to Heaven, the next world must be crowded with odd sticks who have had many a celestial chuckle over the bewilderment of those they left behind on earth.

Many testators seize the opportunity to take revenge for real or fancied injuries. One of the meanest post-mortem tricks in my experience was that of an old Potts-villain, whose offers of marriage having been spurned by several local spinsters, ostentatiously left to each one of them a sum of money “in recognition of their favors during my lifetime.”

Another man, who had driven his wife away from home by cruel treatment, brought me his will for safekeeping, explaining that Mason had drawn it for him. He died of delirium tremens not long after and, on opening the paper, I discovered it to be a foul attack on his wife’s character under the guise of explaining in a codicil why he had revoked a bequest he had made her. While I might have secured the elimination of the objectionable matter from the context of the will, it would inevitably have become known, in a town as small as Pottsville, to the shame and irreparable injury of a good woman, irrespective of the falsity of the allegations. The wife would get a third of the estate in any event, and there were no other legatees. I could not swear out a warrant for criminal libel against the testator since he was already beyond the Styx, but there was a stove in my office, and I 59 made use of it. I doubt if any fire on any altar ever gave more satisfaction to the Almighty.

Strange as it may seem a testator may devise or bequeath property which does not belong to him and under certain conditions the gift will be good. The principle known as “the doctrine of equitable election” is that “one who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all the provisions and renouncing every right inconsistent with it. . . . A legatee or devisee accepting the benefit so given to him must make good the testator’s attempted dispositions.”[13] Thus if A, a testator, leaves to B the sum of $100 and to C a horse in fact belonging to B, should B elect to take the $100, C gets his horse.

I have, once or twice, sought to secure justice by invoking this doctrine. I had a case (Gooch vs. Cross) where I was morally certain that a ne’er-do-well, named Enoch Gooch, had destroyed his mother’s will in order, as her sole heir-at-law, to inherit the farm which she had left to her then husband James Lawton, Gooch’s stepfather. I tried to get ahead of him by having Lawton execute a will whereby he left Gooch a lot of worthless oil stock, at the same time deliberately devising the farm, on which he was still living, to his own daughter, Linda. I had hoped that, when his stepfather died, Gooch would elect to take the stock, thus forfeiting the farm; but he was too smart for me. He passed up the stock and claimed the land as he had legal right to do.

Years later I told Arthur Train about it and he wrote a story in which he pictures me as crooked as Gooch, since he has me tricking Gooch into the belief that the stock was vastly more valuable than the farm. His fictional statement is wholly unfounded and I take this opportunity to set myself right; but while I did not do it, I feel that I would have been almost justified in so doing. If the law recognizes force as a proper way to meet force, as in the right of “self defense” and “recapture” of property, why should it not equally tolerate wile to meet guile?

I often think that for sheer ingenuity the country sharper is more than a match for his city brother. One reason, perhaps, is that he has more idle time on his hands in which to concoct his 60 schemes. There is an old maxim of equity to the effect that “where there is a right, there is always a remedy.”[14] The remedy, however, often eludes the search of the most persistent lawyer.

In 1898 the volumes of the reports of the New York Court of Appeals were not nearly so numerous as today, and during winter evenings when there were no lodge meetings or church sociables, I read them all through from beginning to end, stowing away in my memory a lot of odd bits of law many of which later proved of value. Before I left Pottsville Ma Best’s daughter Betty married a young man named Bruce Tapley living with his mother on the “Old Tapley Farm” which included part of Chasm Brook. Three months later Mrs. Tapley, née Martha Farwell, died and Bruce, as her only child, came into possession of the property under the will of Amos Tapley, his grandfather.

Amos Tapley had had two sons—Alan, already married with children at his death and Jed, a bachelor. By his will, wishing to keep the farm in the family, he divided it into two equal parts, one of which he left to Alan outright. The other half he left to Jed for life only, with the proviso that at his death it also should go to Alan and his heirs, unless in the meantime he should have married and had a child, in which event it should become his absolutely. Thus on their father’s death each of the two sons became possessed of half the land—Alan outright, Jed for life only. For several years Jed had remained single, but in 1873 he had unexpectedly married Martha Farwell, and by her had a male child, my friend Bruce Tapley, who had married Betty Best. Jed had died in 1880, while Mrs. Tapley, his mother, had survived her husband many years.

Shortly after her death Ezekiel Morse, a real estate dealer in Fonda, filed a deed dated 1872 at the Record Office in Pottsville by which Jed Tapley had conveyed to Morse—subject to Tapley’s own life estate—his entire right, title and interest in the Tapley Farm, inherited from his father Amos Tapley. The existence of this deed, which antedated Jed’s marriage by nearly a year and the death of Martha Tapley by over twenty-five, had never been disclosed. On its face Ezekiel Morse had taken the remote chance—probably for an insignificant sum—that Jed might some time marry and have a child, in which case, the condition 61 having been fulfilled, his life interest would become an outright ownership in fee and Morse would then acquire complete title to the property. Since there was apparently no way out of it, Bruce and Betty surrendered the farm to Morse and moved over to the Phoenix House.

Tucked somewhere in the back of my mind was the recollection of a similar case. Going through Martha Tapley’s papers I found a letter to her from Morse, who had apparently been an old friend, dated a few months before her marriage, suggesting that she might do worse than to marry Jed Tapley, because the Tapley Farm was the richest in the county. With the letter was a certified copy of Amos Tapley’s will. Since at the time Morse had written this letter he had had a deed to all Jed’s interest in the land, his failure to disclose that the fulfillment of the condition would vest the title in him was an obvious fraud. After much effort I also managed to find an old sailor uncle of Bruce’s who recalled hearing Morse tell Martha that she would make no mistake if she married Jed.

The question was how to raise the issue quickly and settle it once and for all. The ancient English method of determining land titles was by an action of trespass. Morse had already “posted” Chasm Brook, so Bruce and I openly fished there—under the claim that having done so for over twenty years we had acquired the right by prescription—and defied Morse to arrest us as poachers under Section 365 of the New York Conservation Law. He walked into the trap, swore out a criminal warrant, and haled us before Judge Tompkins sitting as a magistrate.

At the jury trial, which we demanded, Morse, in fear of being prosecuted for perjury, was forced to admit the foregoing facts. Thereupon I moved for a dismissal of the charge on the ground that not he, but Bruce, owned the land. At first Judge Tompkins could not understand what I was driving at; he did, however, when I called his attention to the case which I had at last remembered—Piper vs. Hoard, 107 New York 77—in which the Court of Appeals had held that “where a marriage is induced under (such) circumstances . . . the maker (of the falsehood) should be held to make good the thing to the person who would have had the property if the facts were as he represented, assuming such person to be the fruit of the marriage brought about by those very representations.”

I argued that although Bruce had not been in existence when Morse deceived his mother into believing that, if the conditions in Mark Tapley’s will were fulfilled, her future child would inherit the land, nevertheless he had been directly injured by Morse’s false representation, and since the law would not permit a man to profit by his own wrong, the court must declare him a trustee of the property for the party defrauded. Tompkins so instructed the jury who found in our favor, Morse was ousted, and Bruce reinstated as owner of the Tapley Farm.

Although this case occurred in my legal infancy, so to speak, the result was one of the most startling in my entire experience, for the jury’s verdict of not guilty necessarily confirmed Bruce’s title and rendered the issue res adjudicata. I know of no other instance where a court has held that the perpetrator of a fraud upon a parent makes himself liable for the transfer of real property to a person as yet unborn. Yet what could be more just?

The Tapley suit happens to be an instance where Arthur Train in writing a story was for once obliged to stick closely to the truth, for the reason that, being complicated, it left him no space for romancing. Usually, however, he lets himself go to such an extent that before he has finished I can hardly recognize my own case. Take for instance the yarn he calls “A Leaf from King John.”

The actual facts were that a certain Major Bentley, a crabbed old fellow on School House Hill, had a driveway leading to his house lined with fine elm trees, in which he took great pride. He also held a mortgage on the adjoining farm, one boundary of which ran close to the drive referred to. While the farmer mortgagor had no money, he was good for the interest and it would have been a great hardship on him had Bentley foreclosed. The solution was simple enough. I had a surveyor run the line and thus discovered that the branches of most of the elms on one side of the driveway overhung the farmer’s land. A threat on my part to abate what was clearly a nuisance on my client’s property, by cutting off the offending branches, quickly brought the major to terms.

Now what did friend Train do to this? He gave the major a beautiful nineteen-year-old daughter named Phyllis, and made her deeply in love with a handsome young dairyman, a Cornell graduate, and the only son of a pious widowed mother. The 63 lovely girl was determined to marry her gallant lover, but her father, through his ownership of a mortgage on her suitor’s land, put the screws on Phyllis by threatening to foreclose and throw the youth and his saintly mother (who did not exist) out into the cold, cold world. It had in fact been no trick at all for me to hamstring the major, because it must have been obvious to anyone that his trees were trespassing on another man’s land. So Train, characteristically, must make it harder, by having me accidentally read an almost forgotten history called the Chronicles of Holinshed and thus stumble quite by chance upon an account of how King John of England extorted ten thousand marks from a Jew in Bristol by pulling out one of his teeth every day until he gave in. This was supposed to give me the inspiration of cutting off each day a limb of one of Bentley’s trees until he likewise yielded; and Train has a great branch-cutting scene where the handsome young farmer clasps the beautiful heroine to his bosom with one arm while swatting an elm with the other until he receives the parental blessing!

I suppose a fiction writer is entitled to use his imagination, but circumscribed by facts as I know them actually to be, any such distortion of the truth would be wholly beyond my powers. As my friend William Travers Jerome later used to say: “Exact knowledge is a great handicap to forcible statement!”

Living near the Phoenix House was a widow by the name of Mrs. Tarleton, who had inherited a small property from her first husband. She had a charming daughter Dorothy, a friend of Betty Best’s. After a few years she married an elderly stranger in the town known as “Judge” Gamage, who craftily persuaded her to make a will by which, if the girl married without his consent before she reached the age of twenty-five years, her property should go to him.

The girl became engaged to an attractive and able young doctor, Alex Kellogg, and introduced him to her mother, who gave her approval to her marriage in the near future. Mrs. Tarleton having died shortly thereafter, Gamage, for the first time appearing in his true colors, refused his consent. The language of the will was plain, and the reason for the stepfather’s refusal equally so. Dorothy must either wait six years to marry, or forfeit her estate. Under the circumstances she did what any courageous girl would have done—married her lover in defiance of her 64 stepfather, who through Hezekiah Mason at once demanded and secured a declaratory judgment from Judge Tompkins to the effect that the property belonged to him.

At this juncture Dorothy consulted me as to whether or not there was anything she could do. In view of the fact that Gamage knew of her mother’s approval of the match, the forfeiture seemed so unjust that I appealed from the judgment against her on general principles, believing that there must be some way out of it even if I did not know what it was. The record on appeal contained most of the foregoing facts, including a letter Dorothy had written to Gamage in which she stated that she proposed to marry Kellogg “in spite of the consequences.” Pending the argument before the Appellate Division at Rochester I was fortunate enough to unearth a decision[15] to the effect that “where a person would have inherited an estate had there been no will, but does take it under a will containing a condition by which he may forfeit the property, he cannot be held to have incurred the forfeiture unless it be first shown that he was aware of the condition and broke it with full knowledge of what the consequences would be.”

Save for Dorothy’s letter referred to above there was no specific evidence in the record that she had read the will or knew of the condition; and on the strength of this decision the Appellate Court reversed the judgment and gave her the property, holding that the words “in spite of the consequences” did not necessarily refer to her presumable loss of it. This was certainly a case where justice won by no more than a nose.

In ancient days it was the custom for the sheriff of each county to summon all the inhabitants to what was known as an “assize”[16] or sort of county parliament. If these found or, as it was 65 called, “presented” that someone had committed a crime, the accused was punished, subject to his right to a “trial” by wager of battle or one of the various ordeals in vogue at that period.

In Somerset County every defendant brought to the bar had, to some extent at least, been already pre-judged by the community as a whole, including the trial jury sitting in the case, who, no matter how forcibly instructed to the contrary by the judge, in fact expected him to prove his innocence. There is far more lynch law in country districts than in cities where the jury rarely know, or have even heard of, the defendant. What is called “law” easily becomes “lawlessness.” This probably cannot be helped, for usually once the “hue and cry” is raised a fugitive’s rights are ignored. The instinct of the pack is aroused and the man hunt often results in a “legal” kill. Such a case was that of “Skinny the Tramp,” where only by the grace of God was I able to establish the innocence of a man already convicted in the eyes of the entire countryside.

In a shanty on the hillside overlooking Turtle Pond lived Wilbur Drake, a harmless recluse known as “The Hermit of Turkey Hollow.” He was reputed to be a miser and to have a cache of gold hidden on his premises, although his only visible possession of any value was a grandfather’s clock which stood opposite the door. One afternoon he was found lying dead in his shack in a pool of blood, his fingers clutching a shining five dollar gold piece.

James Hawkins, accused of his murder, was an amiable half-wit called “Skinny the Tramp,” who twice a year turned up in Pottsville for a week or so, camping in a clearing not far from the Hermit with whom he was on friendly terms. He was a half mystic, half rustic philosopher, popular with the townsfolk on account of his sweetness of disposition. Credulous, he implicitly believed that at the foot of every rainbow was a pot of gold.

On the afternoon of the murder a woodsman named Charles Emerson, who had been cutting pea-sticks a hundred yards or so from the Hermit’s shanty, saw Skinny hurrying towards it. Shortly thereafter his attention was attracted by a shot from the cabin, on reaching which he found the Hermit dead upon the floor, amid the shattered fragments of an earthen crock. No one was in sight, but fancying that he heard a crackling in the bushes in the direction of the village, he ran as fast as he could along 66 the tote road in pursuit.

At precisely four o’clock by the Western Union electric clock in Colson’s Grocery, Skinny with a bloody handkerchief around his hand, which he explained he had cut in the woods, came in and ordered a glass of root beer. Emerson, yelling “Murder” at the top of his lungs, appeared fifteen minutes later. The hue and cry was raised and Skinny, who had disappeared, was apprehended in flight about a mile away and lodged in the village jail. He refused to answer questions, his shoes fitted the prints discovered under the Hermit’s window, and there in his pockets were twenty glittering gold pieces of the same mintage as the one in the dead man’s hand.

Hezekiah Mason, who had just been appointed district attorney of Somerset County, seeing in the case an opportunity to make a reputation, arranged for Skinny’s indictment for the murder, and as I was the only other lawyer in town it fell upon my shoulders to defend him. My responsibility weighed on me heavily, and since my client would not open his mouth I, perforce, had to invent a defense—a dubious one at best. This was that if the crackling heard by Emerson in the bushes had been caused by the murderer, Skinny could not possibly be guilty because he could not have increased his start of a couple of minutes to fifteen in the course of a three-mile chase. The obvious answer to this was that the noise, whatever its nature, had been made by another person, or by some animal such as a deer.

The trial took place before Judge Tompkins, and it seemed as if all the inhabitants of the Mohawk Valley had crowded into the courtroom to make a Roman holiday out of what could be little else than a legal execution. The jury were a hard-boiled bunch of local farmers and tradesmen who, I felt, could not be swayed by anything save the evidence. Emerson was the first witness, and when he had finished there was obviously no doubt in their minds of my client’s guilt. I noticed, however, that Mason had omitted to ask Emerson if he knew the exact time when he entered the Hermit’s shanty. This placed me in a dilemma. If I put the question myself and the witness set an hour such as three fifty-five which would have made it impossible for Skinny to reach the grocery store by four o’clock, I would have gone far towards winning my case, but if he answered, as I expected, “three thirty” or “three forty” I would have driven one more nail 67 in Skinny’s coffin, for it would give him ample time to have got there. Yet why, I asked myself, had Mason failed to ask the question unless he knew in advance that the answer would be unfavorable to his side? Accordingly, although with much misgiving, I decided to chance it.

“Do you know what time it was when you reached the Hermit’s cabin?” I inquired.

“I do,” replied Emerson. “It was exactly four o’clock by the Hermit’s clock.”

Instantly a murmur swept the courtroom. The chief witness for the prosecution had established a perfect alibi for the defendant.

“That is all,” I exclaimed triumphantly.

I expected Mason to go after him hammer and tongs, but he did nothing of the sort, and it at once became apparent why he had not done so. Calling the photographer who, with Emerson, had accompanied the sheriff to the cabin several hours after the murder, Mason introduced in evidence a picture of the interior showing the hands of the clock still pointing to four o’clock. It was thus apparent that the clock had run down and had no evidentiary bearing on the hour of the murder. Mason had tricked me into asking Emerson the time in order afterwards to blast his testimony to smithereens!

Had Mason offered no more witnesses the case would have been ended. But the sheriff was an important public officer and, since he had investigated the locus in quo, measured the footprints outside and searched the body, his evidence was essential to fill out the picture. His testimony having been given at some length, the prosecutor asked him what, if anything, he had found in the Hermit’s pockets, and in reply he recounted a list of miscellaneous objects, including matches, pipe, fish-hooks, pins, etc., and a hundred dollars in bills. It struck me as peculiar that a Hermit should have such a large sum upon his person, and I asked the sheriff to produce it. This he did—twenty crisp new five-dollar bills, each stamped in red ink: “W. Gookin—Pottsville’s Boston Store.”

Suddenly I had a flash. Was there possibly a connection between the twenty bills on the Hermit’s body and the hundred dollars in gold pieces found in my client’s possession? If Skinny had murdered the Hermit for his money, why had he not taken 68 the hundred dollars in paper also?

My client, still remaining mute, I called Gookin to the stand and asked him when he had last seen the bills in question. He replied that on the morning of the murder Lawyer Mason had come into his store, borrowed a hundred dollars from him and given his note in return. I had Mason sworn and asked him if what Gookin had said was true, and he hesitatingly admitted that it was. I then inquired what he had done with the money. He replied, still more reluctantly, that he had given it to James Hawkins, the defendant. By this time most of the spectators including Judge Tompkins, were on their feet.

“Why did you give the defendant this money?” inquired His Honor.

“Because he asked me for it. I’m trustee of a five thousand dollar fund of which he’s the beneficiary and I pay him the interest twice a year.”

Tompkins stared at him. That Mason should be prosecuting a man for whom he was trustee seemed, to say the least, strange. Obviously something besides murder had taken place in the cabin, and we hadn’t yet got to the bottom of it.

Determined now to bring out every detail I recalled Emerson to the stand.

“Mr. Emerson,” I said, “you have testified that when you entered the Hermit’s cabin the hands of the clock pointed to four. When you returned with the sheriff two hours later did you notice that the hands still pointed to four?”

“I did.”

“Didn’t you realize that the clock had run down?”

Emerson shook his head.

“It was goin’ all right when I went in,” he said quietly. “When I lifted the Hermit’s head an’ looked in his face the shanty was quiet ’cept for three things. The fust was a kind of cluckin’ sound the Hermit’s breath made on account of the blood in his throat. He was jest passin’ out; his eyes was half open but they didn’t see none; I felt real creepy all alone with him dyin’. But what skeered me most was an enormous moth, the biggest I ever see, that was bumpin’ agin’ the glass of the winder tryin’ to git out. I thought it would stun itself sure. The other thing was the tick of the clock. I saw the minute hand slip to four o’clock. and all of a suddint the hull shanty become still. The Hermit stopped breathin’, the moth flew out of the door, an’—the clock stopped.”

My father

Enoch Tutt.

My mother

Margaret O’Conner Tutt.

Ephraim Tutt at age of five years.

On a fishing trip while at college.

Pottsville, New York, 1895.

Showing Phoenix Hotel.

Esther.

Ephraim Tutt at twenty-seven.

My home in London Terrace.

“A row of old-fashioned houses stood back from the street, homelike, cozy and inviting.”

My portrait by Arthur William Brown by which I am best known to the public.

An eerie silence had descended upon the courtroom. Each of us felt as if he had been personally present in the shanty. But was it credible that the clock had stopped at the precise moment of the Hermit’s death? Should I go on and try to clinch the hour in some other way? I decided in the negative. The alibi as it stood ought to be enough to raise a reasonable doubt of Skinny’s guilt. Better leave well enough alone.

“That’s all,” I said.

Then Mason got up and asked scornfully:

“Do you expect us to believe that while you was holdin’ a dyin’ man’s head in your hands you noticed a clock tick?”

Emerson steadily returned his glance.

“Whether you believe it or not, it’s true. Anyhow, there can’t be no doubt as to the time, because just at that minute the whistle down to Sampson’s mill blew four o’clock.”

Only after his acquittal did Skinny tell me his version of what had occurred. He had been sitting on the hillside after a shower and had noticed the arc of a rainbow which seemed to be resting on the Hermit’s shanty. Running as fast as he could he had peered in the window. Sure enough, the Hermit was sitting at a table in front of a pile of gold pieces beside an earthen crock. Skinny had gone in and at his request the Hermit had good-naturedly exchanged twenty of the gold pieces for the one hundred dollars in bills Mason had given him. That was all he knew about it. When he heard that the Hermit had been murdered he had been seized with fright and run away. He, too, remembered that the clock was going when he went in and that it had then pointed to a quarter to four.

Six months later one of the Zingara Gypsies, who had been camping on the Pottsville fair grounds on the day of the murder, confessed in the death house at Sing Sing where he was awaiting execution for another homicide, that he had committed the crime.

I am not a mystic, but I am not ashamed to admit that the undisputed facts in this case give me pause. Could there have been some relation between the stopping of the clock and the Hermit’s death? Cannot an inanimate object in some mysterious way absorb or partake of the personality of its owner? People 70 twit me about my clothes, but who dare say that my old stovepipe hat and frock coat are not as much a part of me as my heart and lungs? I know that without them I should lose my virtue and be like Samson without his hair. And the big gray moth? Was it possibly a materialization of the Hermit’s soul seeking its escape from earth? Is it mere superstition that leads to the opening of the windows of a death chamber? I give it up! No doubt there are things in heaven and earth undreamed of in our philosophy. But the older I grow the more I agree with what Skinny once said to me:

“There’s two worlds, Mr. Tutt. One you kin see an’ smell an’ touch, and one that you ordinarily can’t—each right alongside t’other. Everything’s alive—rocks ’n trees ’n flowers, an’ water an’ fire, an’ bugs, an’ beasts, just same as folks—an’ none of ’em ever die. Everythin’ has a ghost—walking right along beside it all the time—only it’s in that other world. But sometimes—dependin’ on circumstances—you kin catch a glimpse of what’s goin’ on there and see ’em and hear ’em.”

Well, maybe he’s right. Anyhow I believe that the clock stopped when the Hermit died.

O, my grandfather’s clock was too high for the shelf,

So it stood ninety years on the floor.

It was taller by half than the old man himself,

Though it weighed not a pennyweight more.

It was bought on the morn of the day he was born,

And was always his treasure and pride,

But it stopped—short—never to go again—

When—the old—man—died.

I received a good deal more credit for Skinny’s acquittal than I deserved. Gradually I began to get retainers from elsewhere in the Mohawk Valley—from Fonda, Amsterdam, Canajoharie, Herkimer, and Utica—and from time to time my presence was required in Albany where I appeared before the Court of Appeals and met a number of judges, lawyers, and politicians, including former Governor David Bennett Hill, the Democratic up-State leader, and “Boss” Thomas C. Platt of the Republican Party. But I was always glad to get back to Pottsville and when business took me to New York I was disgruntled by its size and noise.

It is hard, even after all these years, to put down in cold and lifeless words the greatest emotional experience of my life. I had long since ceased to have any feeling for Priscilla Boardman and, although I sometimes cringed at the thought of the way she had treated me, I still liked girls. I especially felt a need for intellectual companionship, of which, apart from Judge Tompkins, I found little in Pottsville.

One night in the autumn of 1897 I was sitting in the back of the room at our weekly “Book Club,” when I found myself listening entranced to an unfamiliar but very beautiful voice. A young woman, whom I did not know, was describing in clear and charmingly modulated tones a play called Candida by an English author, Bernard Shaw. Her analysis of the playwright’s meaning was penetrating and clever.

Surprised that anyone so attractive should have so long escaped me I pushed forward when she finished and asked to be presented. Dr. Osgood casually introduced her as Esther Farr. She was straight and tall, with a lovely pearl-pale oval face and exquisite brow, but it was the appealing wistfulness of her sensitive mouth and veiled brown eyes, at once sad and courageous, that most drew me to her.

After the party I offered to escort her home and we walked down Main Street under a hunter’s moon with the elm leaves fluttering at our feet. She was, she told me, the only daughter of an elderly widowed clergyman, who had died during her sophomore year at Smith College. Since her graduation she had taught at various girls’ schools but was now out of a job. It may have been the magic of the night, my loneliness, or the enchantment of her voice and beauty, but I was strangely thrilled—as if in an alien land I had suddenly come upon one who spoke my language. A vague vista of possible future happiness opened before me. We turned down a side street and stopped in front of a small white house. Betty Best had just married and I had no one but Willie Toothaker to help me in the office. As we said good night I asked Miss Farr if she would care to become my secretary. Before she could reply the door opened and a bearded man with a shawl over his stooped shoulders opened the door.

“Why didn’t you say you’d be late?” he demanded peevishly. “I didn’t think you were ever coming home!”

I saw her often after that and gradually she confided to me her story. Up to the time she had gone to college she had devoted herself to caring for her father, an authority on mediaeval ecclesiastical history. She had seen little of the village boys, none of whom were her mental equals, and when Richard Farr, one of her English instructors at Smith, had shown an interest in her she had fancied herself in love. He was considerably her senior but she was used to older men, and while still an undergraduate, on the death of her father which left her entirely alone she had married him. They had lived happily enough, until a year later her husband had had a nervous breakdown followed by a slight stroke of paralysis, as a result of which he had been obliged to resign his position. He had accumulated nothing. So at the age of twenty-two, she had brought her middle-aged, semi-invalid husband back to the house she had inherited from her father in Pottsville and was trying to support him.

I suppose I must have loved her from the moment I first saw her, since it was a shock to find that she was a married woman. She proved invaluable, typing my papers, interviewing my clients, and under my direction even looking up points of law; but most of all she taught me the wealth of human sympathy, for her own suffering had opened her heart to the trouble of others, and no one ever appealed to her for help who did not get it. She became the lovely priestess of my little Doric temple, and we shared there the greatest happiness of our lives. After the day’s work was over and the last client had gone, we often sat reading or talking together in the twilight until it was time for her to go home. We did not have to tell each other that we were in love. I was twenty-eight; her husband was thirty-nine. Loyal, deeply religious, and with a strong sense of duty she had nothing against this man whom she still in a way admired, recognizing that his chronic irritability was not his fault. We were caught in life’s trap, that was all. We could not bear to think of parting, yet we realized that we could not for long go on as we were, and when one day looking away from me she said, “Don’t you think, Ephraim, that with your ability you ought to give yourself a chance in a bigger place?” I knew perfectly well what she meant.

I had already begun to feel that, professionally, Pottsville was 73 too small for me. Although Cal Coolidge was still practicing in Northampton I knew from his letters that he was playing a well-thought-out game and merely biding his time. My occasional trips to larger cities, and particularly the excitement of the Spanish-American War, had stirred me to a sense of the importance of what was going on in the outside world. Admiral Dewey had annihilated the enemy fleet at Manila Bay and Theodore Roosevelt, “The Hero of San Juan,” after a whirlwind campaign in his Rough Rider’s uniform, had been triumphantly elected Governor of the State. I wanted a nearer seat at the big show.

While I had many friends among the townspeople I was really intimate with none except Ma Best, Esther and Judge Tompkins, who was about to retire from the bench and take up private practice in his home town; but my friendship with Esther was loaded with dynamite, and although the Judge had paid me the compliment of suggesting that we should open a law office together in Utica, under the firm style of Tompkins & Tutt, I had a hunch that, were I to forsake the country for any city, I had best choose the one offering the greatest opportunity. Therefore, towards the end of 1898, I packed my old carpet bag, closed my Grecian temple, bade goodbye to Ma Best and took the train for New York, quitting Pottsville as poor as when I had arrived there.