By Advice of Counsel Part 21

"Exactly. From very early days in England the church claimed jurisdiction of all matters pertaining to marriage, on the ground that it was a sacrament."

"Did the ecclesiastical courts take the position that all marriages were made in heaven?"

Mr. Tutt shrugged his shoulders.

"'Once married, always married,' was their doctrine."

"Then how did people who were unhappily married get rid of one another?"

"They didn't--if the courts ruled that they had actually been married--but that left a loophole. When was a marriage not a marriage?

Answer: When the parties were closely enough related by blood or marriage, or either of them was mentally incapable, under age, victims of duress, fraud, mistake, previously contracted for, or--already married."

"Ah!" breathed Tutt, thinking of Mr. Higgleby.

"The ecclesiastical law remained without any particular variation until after the American Revolution and the colonies separated from Great Britain, and as there was no union of church and state on this side of the water, and so no church to take control of the subject or ecclesiastical courts to put its doctrines into effect, for a while there was no divorce law at all over here, and then one by one the states took the matter up and began to make such laws about it as each saw fit. Hence the jolly old mess we are in now!"

"Jolly for us," commented Tutt. "It means dollars per year to us. Well,"

he remarked, stretching his legs and yawning, "divorce is sure an evil."

"That's no news," countered Mr. Tutt. "It was just as much of an evil in the time of Moses, of Julius Caesar, and of Edward the Confessor as it is now. There hasn't been anything approaching the flagrancy of Roman divorce in modern history."

"Thank heaven there's still enough to pay our office rent--anyhow!" said Tutt contentedly. "I hope they won't do anything so foolish as to pa.s.s a national divorce law."

"They won't," Mr. Tutt a.s.sured him. "Most Congressmen are lawyers and are not going to take the bread out of their children's mouths. Besides, the power to regulate the domestic relations of the United States, not being delegated under the Const.i.tution to the Federal Government, is expressly retained by the states themselves."

"You've given me a whole lot of ideas," admitted Tutt. "If I get you rightly, as each state is governed by its own independent laws, the status of married persons must be governed by the law of the state where they are; otherwise if every couple on some theory of exterritoriality carried the law of the state where they happened to have been joined together round with them we would have the spectacle of every state in the union interpreting the divorce laws of every other state--confusion worse confounded."

"On the other hand," returned Mr. Tutt, "the law is settled that a marriage valid when made is valid everywhere; and conversely, if invalid where made is invalid everywhere--like our Mongolian case. If that were not so every couple in order to continue legally married would have to go through a new ceremony in every state through which they traveled."

"Right-o!" whistled Tutt. "A parson on every Pullman!"

"It follows," continued Mr. Tutt, lighting a fresh stogy and warming to his subject, "that as each state has the right to regulate the status of its own citizens it has jurisdiction to act in a divorce proceeding provided one of the parties is actually domiciled within its borders.

Naturally this action must be determined by its own laws and not by those of any other state. The great divergence of these laws makes extraordinary complications."

"Hallelujah!" cried Tutt. "Now, in the words of the psalmist, you've said a mouthful! I know a man who at one and the same time is legally married to one woman in England, to another in Nevada, is a bigamist in New York, and--"

"What else could he be except a widower in Pittsburgh?" pondered the elder Tutt. "But it's quite possible. There's a case going on now where a woman in New York City is suing her ex-husband for a divorce on the usual statutory ground, and naming his present wife as co-respondent, though the plaintiff herself divorced him ten years ago in Reno, and he married again immediately after on the strength of it."

"I'm feeling stronger every minute!" exclaimed Tutt. "Surely in all this bedlam we ought to be able to acquit our new client Mr. Higgleby of the charge of bigamy. At least _you_ ought to be able to. I couldn't."

"What's the difficulty?" queried Mr. Tutt.

"The difficulty simply is that he married the present Mrs. Higgleby on the seventeenth of last December here in the city of New York, when he had a perfectly good wife, whom he had married on the eleventh of the preceding May, living in Chicago."

"What on earth is the matter with him?" inquired Mr. Tutt.

"He simply says he's a traveling man," replied his partner, "and--he happened to be in New York."

"Well, the next time he calls, you send him in to see me," directed Mr.

Tutt. "What was the present lady's name?"

"Woodc.o.c.k," answered Tutt. "Alvina Woodc.o.c.k."

"And she wanted to change to Higgleby?" muttered his partner. "I wonder why."

"Oh, there's something sort of appealing about him," acknowledged Tutt.

"But he don't look like a bigamist," he concluded. "What does a bigamist look like?" meditated Mr. Tutt as he lit another stogy.

"Good morning, Mr. Tutt," muttered the Honorable Peckham from behind the imitation rubber plant in his office, where he was engaged in surrept.i.tiously consuming an apple. "Um--be with you in a minute. What's on your mind?"

Mr. Tutt simultaneously removed his stogy with one hand and his stovepipe with the other.

"I thought we might as well run over my list of cases," he replied. "I can offer you a plea or two if you wish."

"Do I!" e.j.a.c.u.l.a.t.ed the D.A., rolling his eyes heavenward. "Let's hear the Roll of Honor."

Mr. Tutt placed his hat, bottom side up, on the carpet and lowered himself into a huge leather armchair, furnished to the county by a political friend of Mr. Peckham and billed at four hundred per cent of the regular retail price. Then he reinserted the stogy between his lips and produced from his inside pocket a typewritten sheet.

"There's Watkins--murdered his stepmother--indicted seven months ago.

Give you murder in the second?"

"I'll take it," a.s.sented Peckham, lighting a cigar in a businesslike manner. "What else you got?"

"Joseph Goldstein--burglary. Will you give him grand larceny in the second?"

The Honorable Peckham shook his head.

"Sorry I can't oblige you, old top," he said regretfully. "He's called the King of the Fences. If I did, the papers would holler like h.e.l.l.

I'll make it any degree of burglary, though."

"Very well. Burglary in the third," agreed Mr. Tutt, jotting it down.

"Then here's a whole bunch--five--indicted together for a.s.sault on a bartender."

"What degree?"

"Second--bra.s.s knuckles."

"You can have third degree for the lot," grunted Peckham laconically.

"All right," said Mr. Tutt. "Now for the ones that are going to trial.

Here's Jennie Smith, indicted for stealing a mandarin chain valued at sixty-five dollars up at Monahaka's. The chain's only worth about six-fifty and I can prove it. Monahaka don't want to go to trial because he knows I'll show him up for the Oriental flimflammer that he is. But of course she took it. What do you say? I'll plead her to petty and you give her a suspended sentence? That's a fair trade."

Peckham pondered.

"Sure," he said finally. "I'm agreeable. Only tell Jennie that next time I'll have her run out of town."