By Advice of Counsel Part 35

"How long have you been practicing veterinary medicine?" he inquired.

"All my life," answered Danny truthfully. "But I don't get near so much to do as I used. These be hard times for those as have to do with horses."

He got up painfully.

"Well, now," said Doctor Simon, "I'd feel better if I paid you for treating my horse. Just put this five-dollar bill in your pocket. I guess you need it more than I do."

Danny shook his head. "That's all right!" he said weakly, for he was feeling very ill. "It's a stand-off."

"Oh, go ahead, take it!" urged Doctor Simon, shoving the bill into the pocket of Danny's overcoat. "By the way, have you got your card? I might be able to send a little business your way."

When his magic skill with horses was matter of common knowledge among the upper circle of Long Island grooms and coachmen Danny had had a few cards struck off by a friendly printer. A couple of fly-blown specimens still lingered in the drawer of Mulqueen's desk. Danny searched until he found one:

DANIEL LOWRY VETERINARY 212 WEST 53D STREET NEW YORK CITY

"Here, sor," said he, his head swimming, "that's my name, but the address is wrong."

Doctor Simon put it in his pocketbook.

"Thanks," he remarked. "Much obliged for fixing up my horse." Then in a businesslike manner, he threw back his coat and displayed a glittering badge. "Now," he added brusquely, "I must arrest you for practising veterinary medicine without a license. Just come along with me to the nearest police station."

When Mr. Tutt returned home that evening after attending one of the weekly sessions at the Colophon Club, where he had reluctantly contributed the sum of fifty-seven dollars to relieve the immediate needs of certain impecunious persons gathered there about a green-baize-covered table in a remote corner of the card room, he perceived by the light of an adjacent street lamp that someone was sitting upon the top of the steps leading to his front door.

"Are you Mr. Tutt?" inquired Katie Lowry, getting up and making a timid curtsy. "The great lawyer?"

"That is my name, child," he answered. "What do you want of me?"

She was but a wisp of a girl and her eyes shone like a cat's from under a gray shawl gathered over a pair of narrow, pinched shoulders.

"They've taken grandfather away to prison," she replied with a catch in her throat. "He didn't come in to lunch nor to supper, and when I went to the stable Mr. Mulqueen said a detective had arrested grandfather for doctoring horses without a license and he had pleaded guilty and they'd locked him up. I went to the police station, but they said he wasn't there any more, but that he was in the Tombs."

"Who is your grandfather?" demanded Mr. Tutt as he unlocked the door.

"Danny Lowry," she replied. "Oh, sir, won't you try to do something for him, sir? He thinks so much of you! He often has told me what a grand man you were and so kind, besides being such a clever lawyer and all the judges afraid of you!"

"Danny Lowry in the Tombs!" cried Mr. Tutt. "What an outrage! Of course I'll do what I can for him. But first come inside and warm yourself.

Miranda!" he shouted to the colored maid of all work. "Make us some hot toast and tea and bring it up to the library. Now, my dear, take off your shawl and sit down and tell me all about it."

So with her frayed kid shoes upturned on the fender, little Katie Lowry, confident that she had found an all-powerful friend in this queer long man who smoked such queer long cigars, sipping her tea only when she had to pause for breath, poured out the story of her grandfather's fight with poverty and misfortune, while her auditor's wrinkled face grew soft and hard by turns as he watched her through the gray clouds from his stogy. An hour later he left her at the door of her flat, happy and encouraged, with a twenty-dollar bill crumpled in her hand.

"But what do you expect me to do about it?" retorted District Attorney Peckham in his office next morning when Mr. Tutt had explained to him the perversion of justice to accomplish which the law had been invoked.

"I'm sorry! No doubt he's a good feller. But he's guilty, isn't he?

Admitted it in the police court, didn't he?"

"I expect you to temper justice with mercy," replied Mr. Tutt earnestly.

"This old man's whole life has been devoted to relieving the sufferings of animals. He's a genuine Samaritan."

"That's like saying that a thief has done good with his plunder, isn't it?" commented Peckham. "Look here, Tutt, of course I hope you get your man off and all that, but if I personally threw the case out I'd have all the vets in the city on my neck. You see the motors have pretty nearly put 'em all out of business. There aren't enough sick horses to go round, so they've been conducting a sort of crusade. Tough luck--but the law is the law. And I have to enforce it--ostensibly, anyway."

"Very well," answered the old lawyer amiably but defiantly. "Then if you've got to enforce the law against a fine old chap like that I've got to do my darnedest to smash that law higher than a kite. And I'll tell you something, Peckham--which is that the human heart is a d.a.m.n sight bigger than the human conscience."

Danny Lowry had lived for years in fear of the blow which had so suddenly struck him down, for there had never been any blinking of the obvious fact that in acting as an unlicensed veterinary he was brazenly violating the law. On the other hand, not being able to read or write, and having no technical knowledge of medicine, all his experience, all his skill, all his love of animals could avail him nothing so far as securing a license was concerned. He could not read an examination paper, but he could interpret the symptoms seen in a trembling neck and a lack-l.u.s.ter eye. Danny had no choice but to break the law or abandon the only career for which he had an apt.i.tude, or by which he could hope to earn a living at his age. His crime was _malum prohibitum_, not _malum in se_, but it was, nevertheless, a violation of a most necessary law. Certainly none of us wish to be doctored by tyros or humbugs, or to have our animals treated by them. Only Danny was neither a tyro nor a humbug, and had he not been a lawbreaker the world would have been to some extent the loser.

Yet by all the canons of ethics and justice it was most improper for Mr.

Tutt to hurry off to the Tombs and bail out old Danny Lowry, a self-confessed lawbreaker, giving his own bond and the house on Twenty-third Street as security. Still more so, as more unblus.h.i.+ngly ostentatious, was his taking the criminal over to Pont's and giving him the very best dinner that Signor Faccini, proprietor of that celebrated hostelry, could purvey.

Hard cases are said to make bad law; I wonder if they make bad people.

If "conscience makes cowards of us all" does human sympathy play ducks and drakes with conscience? Does it blind the eye of reason? Rather, does it not illumine and expose the fallacies of logic and the falsities of the syllogism? Do two and two make four in human polity as in mathematics? Sometimes it would not seem so.

Certainly you would have picked Mr. Bently Gibson, of The Gibson Woolen Mills, as a model juror. One look at him as a prospective talesman in a murder case and you would have unhesitatingly murmured, "The defense challenges peremptorily!" His broad forehead, large well-shaped nose, firm chin and clear calm eye evidenced his common sense, his conscientiousness and his uncompromising adherence to principle. His customs declarations were complete to the smallest item, his income-tax returns models of self-sacrifice, he was patriotic and civic, he belonged to the Welfare League and the Citizens' Union, and--I hesitate to confess it--he subscribed to the annual deficit of the Society for the Suppression of Sin. On the face of it, he was the kind of man the district attorney tries to select as foreman of a jury when he has to prosecute a woman who had kidnaped her own child out of a foundling asylum.

The heelers and hangers-on of the criminal courts would have described him as a highbrow and as a holier-than-thou; perhaps he might in a moment of jocularity have even so described himself--for he had his human--perhaps I should have said, his weaker--side. Surely he seemed human enough when he kissed Eleanor good-by at the door of their country place on the Sound the morning he had been subpoenaed to serve as a juryman in Part Five of the General Sessions. He had planned to take a week's holiday that spring, and he had gone to infinite trouble to arrange his business in order to have it, for they had become engaged eleven years before at the moment when the apple blossoms and the dogwoods were at the height of their glory, even as they were now.

When, however, he found the brown subpoena at his office directing him to present himself for service the following Monday he simply gave a half sigh, half grunt of disgust, and let the longed-for vacation go; for one of his pet theories was that the jury system was the chief bulwark of the Const.i.tution, the cornerstone of liberty. Had he only been disingenuous enough he need never have served on any jury, for no lawyer for the defense hearing him enlarge on what he considered the duties of a juryman to be, would ever have allowed him in the box. But when other chaps on the panel presented their excuses to the judge and managed to persuade him of the imperative needs of family or business, and slipped--grinning discreetly--out of the court room, he merely inaudibly called them welshers and pikers. No, he regarded jury service as a duty and a privilege, one not to be lightly avoided--the one common garden governmental function in which Uncle Sam expected every citizen to do his duty.

"I won't let any of the rogues get by me!" he shouted gaily to his wife over the back of the motor. "And anyhow I shan't be locked up all night.

There aren't any murder cases on the calendar. I'll be out on the five-fifteen as usual."

Alas, poor Bently! Alas for human frailty and all those splendid visions in which he pictured himself as the anchor of the s.h.i.+p of justice, a prop and stay of the structure of democracy.

His train was a trifle late and the roll of the jury had already been called, and the perennial excuses heard, when he entered the court room; but the clerk, who knew him, nodded in a welcoming manner, checked him off as present and dropped his name card in the revolving wheel. It was a well-known scene to Bently, a veteran of fifteen years' service. Even the actors were familiar friends--the pink-faced judge with his snow-white whiskers, who at times suggested to Bently an octogenarian angel, and, at others, a certain ancient baboon once observed in the Primates cage at the Bronz Zoo; the harried, anxious little clerk with his paradoxically grandiloquent intonation; the comedy a.s.sistant district attorney with his wheezy voice emanating from a Falstaffian body, who suffered from a soporific malady and was accustomed to open a case and then let it take care of itself while he slumbered audibly beneath the dais; even Ephraim Tutt, the gaunt, benignly whimsical-looking attorney, in his rusty-black frock coat and loose-hanging tie; his rotund partner, whose birdlike briskness and fat paunch inevitably brought to mind a distended robin in specs; and the _degage_ Bonnie Doon in his cut-in-at-the-waist checked suit--he knew them all of old.

"Well, call your first case, Mister District Attorney!" directed the judge, nodding encouragingly at Bently, well knowing that in him he had a staunch upholder of the law-as-it-is, who could be depended upon to bolster up his weaker or more sentimental brother talesmen into the proper convicting att.i.tude of mind.

Then--as per the schedule in force for at least an epoch--good-natured, pot-bellied Tom Hingman, the oldest A.D.A. in the office, rose heavily, fumbled with his stubby fingers among the blue indictments on the table, drew one forth, panted a few times, gasped out "People against Daniel Lowry," and looked round in a pseudo-helpless way as if not knowing exactly what to do.

There was a slight stir, and from the back of the court room came forward a funny little bow-legged old man, carrying in both hands a funny little flat-topped derby hat, and took his seat timidly at the bar of justice beside Mr. Tutt, who smiled down at him affectionately and put his arm about the threadbare shoulders as if to protect him from the evils of the world. They made a quaint and far from unpleasing picture, thought Bently Gibson, the ideal juror, and he wondered what the poor old devil could be up for.

A jury was impaneled, Bently among them; the balance of the panel was excused until two o'clock; the court room was cleared of loafers; the judge perused the indictment with a practised eye; Tom Hingman rose again, wheezed and grinned at the embattled jury; and the mill of justice began to grind.

Now the mill of justice, at least in the General Sessions of New York County, grinds exceeding fine, so far as the number of convictions is concerned. Of those brought to the bar for trial few escape; for modern talesmen, being hard-headed men, regard the whole thing as a matter of business and try to get through with it as quickly and as efficiently as possible. The bombastic spread-eagle orator, the grandiloquent gas bag, the highfaluting stump speaker gain few verdicts and win small applause except from their clients. And district attorneys who ape the bloodhound in their mien and tactics win scant approval and less acquiescence from the bored gentlemen who are forced to listen to them. Nowadays--whatever may have been the case two generations ago--each side briefly states its claims and tries to win on points.

People were apt to wonder why each succeeding administration inevitably retained stuffy old Tom Hingman at seventy-five hundred dollars a year to handle the calendar in Part Five. Yet those on the inside knew why very well. It was because Tom long ago, in his prehistoric youth, had learned that the way to secure verdicts was to appear not to care a tinker's dam whether the jury found the defendant guilty or not. He pretended never to know anything about any case in advance, to be in complete ignorance as to who the witnesses might be and to what they were going to testify, and to be terribly sorry to have to prosecute the unfortunate at the bar, though he wasn't to blame for that any more than the jury were for having to find him guilty if proven to be so, which, it seemed to him, he had been clearly proven to be. I say Tom pretended all this, yet it was more than half true, for Tom was a kind-hearted old bird. But the point was that, whether true or not, it got convictions.

The jury sucking it all up in its entirety felt sorrier for the simple-minded old softy of a Tom, which they believed him to be, than they did for the defendant, who they concluded was a good deal cleverer than the a.s.sistant district attorney.

In a word, it put them on their honor as public officers not to let the administration of justice suffer merely because the A.D.A. was too old and easy-going and generally slab-sided to be really on his job. Thus, they became prosecuting attorneys themselves--in all, thirteen to one.

So Tom, having thus delegated his functions to the jury, calmly left it all to them and went to sleep, which was the best thing that he did.

Worth seventy-five hundred a year? Rather, seventy-five thousand!

"Gentlemen of the jury," he began haltingly, "this defendant seems to have been indicted for the crime of practising medicine without a license--a misdemeanor. I don't see exactly how he gets into this court, which is supposed to try only felony cases, but I a.s.sume my old friend Tutt made a motion to transfer the case from the Special to the General Sessions on the theory that he would stand more chance with a jury than three--er--hardened judges. Well, maybe he will--I don't know! I gather from the papers that Mr. Lowry here, after holding himself out to be a properly licensed veterinary, treated a horse belonging to the complainant. It is not a very serious offense, and you and I have no great interest in the case, but of course the public has got to be protected from charlatans, and the only way to do it is to brand as guilty those who pretend they are duly licensed to practise medicine when they are not. If you had a sick baby, Mr. Foreman, and you saw a sign 'A.S. Smith, M.D., Children's Specialist,' you would want to be sure you were not going to hire a plumber, eh? You see! That's all there is to this case!"

"All there is to this case!" murmured Mr. Tutt audibly, raising his eyes ceilingward.