By Advice of Counsel

Arthur Train

By Advice of Counsel

The Shyster

Shyster, n. [Origin obscure.] One who does business trickily; a person without professional honor: used chiefly of lawyers; as, pettifoggers and shysters.—CENTURY DICTIONARY.

When Terry McGurk hove the brick through the window of Froelich's butcher shop he did it casually, on general principles, and without any idea of starting anything. He had strolled unexpectedly round the corner from his dad's saloon, had seen the row going on between Froelich and the gang of boys that after school hours used the street in front of the shop as a ball ground, and had merely seized the opportunity to vindicate his reputation as a desperado and put one over on the Dutchman. The fact that he had on a red sweater was the barest coincidence. Having observed the brick to be accurately pursuing its proper trajectory he had ducked back round the corner again and continued upon his way rejoicing. He had not even noticed Tony Mathusek, who, having accidentally found himself in the midst of the mêlée, had started to beat a retreat the instant of the crash, and had run plump into the arms of Officer Delany of the Second. Unfortunately Tony too was wearing a red sweater.

"I've got you, you young devil!" exulted Delany. "Here's one of 'em, Froelich!"

"Dot's him! It was a feller mit a red sweater! Dot's the vun who done it!" shrieked the butcher. "I vill make a gomblaint against him!"

"Come along, you! Quit yer kickin'!" ordered the cop, twisting Tony's thin arm until he writhed. "You'll identify him, Froelich?"

"Sure! Didn't I see him mit my eyes? He's vun of dem rascals vot drives all mine gustomers avay mit deir yelling and screaming. You fix it for me, Bill."

"That's all right," the officer assured him. "I'll fix him good, I will! It's the reformatory for him. Or, say, you can make a complaint for malicious mischief."

"Sure! Dot's it! Malicious mischief!" assented the not over-intelligent tradesman. "Ve'll get rid of him for good, eh?"

"Sure," assented Delany. "Come along, you!"

Tony Mathusek lifted a white face drawn with agony from his tortured arm.

"Say, mister, you got the wrong feller! I didn't break the window. I was just comin' from the house—"

"Aw, shut up!" sneered Delany. "Tell that to the judge!"

"Y' ain't goin' to take me to jail?" wailed Tony. "I wasn't with them boys. I don't belong to that gang."

"Oh, so you belong to a gang, do ye? Well, we don't want no gangsters round here!" cried the officer with adroit if unscrupulous sophistry. "Come along now, and keep quiet or it'll be the worse for ye."

"Can't I tell my mother? She'll be lookin' for me. She's an old lady."

"Tell nuthin'. You come along!"

Tony saw all hope fade. He hadn't a chance—even to go to a decent jail! He had heard all about the horrors of the reformatory. They wouldn't even let your people visit you on Sundays! And his mother would think he was run over or murdered. She would go crazy with worry. He didn't mind on his own account, but his mother— He loved the old widowed mother who worked her fingers off to send him to school. And he was the only one left, now that Peter had been killed in the war. It was too much. With a sudden twist he tore out of his coat and dashed blindly down the street. As well might a rabbit hope to escape the claws of a wildcat. In three bounds Delany had him again, choking him until the world turned black.

But this is not a story about police brutality, for most cops are not brutal. Delany was an old-timer who believed in rough methods. He belonged, happily, to a fast-vanishing system more in harmony with the middle ages than with our present enlightened form of municipal government. He remained what he was for the reason that farther up in the official hierarchy there were others who looked to him, when it was desirable, to deliver the goods—not necessarily cash—but to stand with the bunch. These in turn were obligated on occasion, through self-interest or mistaken loyalty to friend or party, to overlook trifling irregularities, to use various sorts of pressure, or to forget what they were asked to forget. There was a far-reaching web of complicated relationships—official, political, matrimonial, commercial and otherwise—which had a very practical effect upon the performance of theoretical duty.

Delany was neither an idealist nor a philosopher. He was an empiricist, with a touch of pragmatism—though he did not know it. He was "a practical man." Even reform administrations have been known to advocate a liberal enforcement of the laws. Can you blame Delany for being practical when others so much greater than he have prided themselves upon the same attribute of practicality? There were of course a lot of things he simply had to do or get out of the force; at any rate, had he not done them his life would have been intolerable. These consisted in part of being deaf, dumb and blind when he was told to be so—a comparatively easy matter. But there were other things that he had to do, as a matter of fact, to show that he was all right, which were not only more difficult, but expensive, and at times dangerous.

He had never been called upon to swear away an innocent man's liberty, but more than once he had had to stand for a frame-up against a guilty one. According to his cop-psychology, if his side partner saw something it was practically the same as if he had seen it himself. That phantasmagorical scintilla of evidence needed to bolster up a weak or doubtful case could always be counted on if Delany was the officer who had made the arrest. None of his cases were ever thrown out of court for lack of evidence, but then, Delany never arrested anybody who wasn't guilty!

Of course he had to "give up" at intervals, depending on what administration was in power, who his immediate superior was, and what precinct he was attached to, but he was not a regular grafter by any means. He was an occasional one merely; when he had to be. He did not consider that he was being grafted on when expected to contribute to chowders, picnics, benevolent associations, defense funds or wedding presents for high police officials. Neither did he think that he was taking graft because he amicably permitted Froelich to leave a fourteen-pound rib roast every Saturday night at his brother-in-law's flat. In the same way he regarded the bills slipped him by Grabinsky, the bondsman, as well-earned commissions, and saw no reason why the civilian clothes he ordered at the store shouldn't be paid for by some mysterious friendly person—identity unknown—but shrewdly suspected to be Mr. Joseph Simpkins, Mr. Hogan's runner. Weren't there to be any cakes and ale in New York simply because a highbrow happened to be mayor? Were human kindness, good nature and generosity all dead? Would he have taken a ten-dollar bill—or even a hundred-dollar one—from Simpkins when he was going to be a witness in one of Hogan's cases? Not on your life! He wasn't no crook, he wasn't! He didn't have to be. He was just a cog in an immense wheel of crookedness. When the wheel came down on his cog he automatically did his part.

I perceive that the police are engaging too much of our attention. But it is necessary to explain why Delany was so ready to arrest Tony Mathusek, and why as he dragged him into the station house he beckoned to Mr. Joey Simpkins, who was loitering outside in front of the deputy sheriff's office, and whispered behind his hand, "All right. I've got one for you!"

Then the machine began to work as automatically as a cash register. Tony was arraigned at the bar, and, having given his age as sixteen years and five days, charged with the "malicious destruction of property, to wit, a plate-glass window of one Karl Froelich, of the value of one hundred and fifty dollars." Mr. Joey Simpkins had shouldered his way through the smelly push and taken his stand beside the bewildered and half-fainting boy.

"It's all right, kid. Leave it to me," he said, encircling him with a protecting arm. Then to the clerk: "Pleads not guilty."

The magistrate glanced over the complaint, in which Delany, to save Froelich trouble, had sworn that he had seen Tony throw the brick. Hadn't the butcher said he'd seen him? Besides, that let the Dutchman out of a possible suit for false arrest. Then the magistrate looked down at the cop himself.

"Do you know this boy?" he asked sharply.

"Sure, Yerroner. He's a gangster. Admitted it to me on the way over."

"Are you really over sixteen?" suddenly demanded the judge, who knew and distrusted Delany, having repeatedly stated in open court that he wouldn't hang a yellow dog on his testimony. The underfed, undersized boy did not look more than fourteen.

"Yes, sir," said Tony. "I was sixteen last week."

"Got anybody to defend you?"

Tony looked at Simpkins inquiringly. He seemed a very kind gentleman.

"Mr. Hogan's case, judge," answered Joey. "Please make the bail as low as you can."

Now this judge was a political accident, having been pitchforked into office by the providence that sometimes watches over sailors, drunks and third parties. Moreover, in spite of being a reformer he was nobody's fool, and when the other reformers who were fools got promptly fired out of office he had been reappointed by a supposedly crooked boss simply because, as the boss said, he had made a hell of a good judge and they needed somebody with brains here and there to throw a front. Incidentally, he had a swell cousin on Fifth Avenue who had invited the boss and his wife to dinner, by reason of which the soreheads who lost out went round asking what kind of a note it was when a silk-stocking crook could buy a nine-thousand-dollar job for a fifty-dollar dinner. Anyhow, he was clean and clean-looking, kindly, humorous and wise above his years—which were thirty-one. And Tony looked to him like a poor runt, Simpkins and Delany were both rascals, Froelich wasn't in court, and he sensed a nigger somewhere. He would have turned Tony out on the run had he had any excuse. He hadn't, but he tried.

"Would you like an immediate hearing?" he asked Tony in an encouraging tone.

"Mr. Hogan can't be here until to-morrow morning," interposed Simpkins. "Besides, we shall want to produce witnesses. Make it to-morrow afternoon, judge."

Judge Harrison leaned forward.

"Are you sure you wouldn't prefer to have the hearing now?" he inquired with a smile at the trembling boy.

"Well, I want to get Froelich here—if you're going to proceed now," spoke up Delany. "And I'd like to look up this defendant's record at headquarters."

Tony quailed. He feared and distrusted everybody, except the kind Mr. Simpkins. He suspected that smooth judge of trying to railroad him.

"No! No!" he whispered to the lawyer. "I want my mother should be here; and the janitor, he knows I was in my house. The rabbi, he will give me a good character."

The judge heard and shrugged his bombazine-covered shoulders. It was no use. The children of darkness were wiser in their generation than the children of light.

"Five hundred dollars bail," he remarked shortly. "Officer, have your witnesses ready to proceed to-morrow afternoon at two o'clock."

"Mr. Tutt," said Tutt with a depressed manner as he watched Willie remove the screen and drag out the old gate-leg table for the firm's daily five o'clock tea and conference in the senior partner's office, "if a man called you a shyster what would you do about it?"

The elder lawyer sucked meditatively on the fag end of his stogy before replying.

"Why not sue him?" Mr. Tutt inquired.

"But suppose he didn't have any money?" replied Tutt disgustedly.

"Then why not have him arrested?" continued Mr. Tutt. "It's libelous per se to call a lawyer a shyster."

"Even if he is one," supplemented Miss Minerva Wiggin ironically, as she removed her paper cuffs preparatory to lighting the alcohol lamp under the teakettle. "The greater the truth the greater the libel, you know!"

"And what do you mean by that?" sharply rejoined Tutt. "You don't—"

"No," replied the managing clerk of Tutt & Tutt. "I don't! Of course not! And frankly, I don't know what a shyster is."

"Neither do I," admitted Tutt. "But it sounds opprobrious. Still, that is a rather dangerous test. You remember that colored client of ours who wanted us to bring an action against somebody for calling him an Ethiopian!"

"There's nothing dishonorable in being an Ethiopian," asserted Miss Wiggin.

"A shyster," said Mr. Tutt, reading from the Century Dictionary, "is defined as 'one who does business trickily; a person without professional honor; used chiefly of lawyers.'"

"Well?" snapped Tutt.

"Well?" echoed Miss Wiggin.

"H'm! Well!" concluded Mr. Tutt.

"I nominate for the first pedestal in our Hall of Legal Ill Fame—Raphael B. Hogan," announced Tutt, complacently disregarding all innuendoes.

"But he's a very elegant and gentlemanly person," objected Miss Wiggin as she warmed the cups. "My idea of a shyster is a down-at-the-heels, unshaved and generally disreputable-looking police-court lawyer—preferably with a red nose—who murders the English language—and who makes his living by preying upon the ignorant and helpless."

"Like Finklestein?" suggested Tutt.

"Exactly!" agreed Miss Wiggin. "Like Finklestein."

"He's one of the most honorable men I know!" protested Mr. Tutt. "My dear Minerva, you are making the great mistake—common, I confess, to a large number of people—of associating dirt and crime. Now dirt may breed crime, but crime doesn't necessarily breed dirt."

"You don't have to be shabby to prey upon the ignorant and helpless," argued Tutt. "Some of our most prosperous brethren are the worst sharks out of Sing Sing."

"That is true!" she admitted, "but tell it not in Gath!"

"A shyster," began Mr. Tutt, unsuccessfully applying a forced draft to his stogy and then throwing it away, "bears about the same relation to an honest lawyer as a cad does to a gentleman. The fact that he's well dressed, belongs to a good club and has his name in the Social Register doesn't affect the situation. Clothes don't make men; they only make opportunities."

"But why is it," persisted Miss Wiggin, "that we invariably associate the idea of crime with that of 'poverty, hunger and dirt'?"

"That is easy to explain," asserted Mr. Tutt. "The criminal law originally dealt only with crimes of violence—such as murder, rape and assault. In the old days people didn't have any property in the modern sense—except their land, their cattle or their weapons. They had no bonds or stock or bank accounts. Now it is of course true that rough, ignorant people are much more prone to violence of speech and action than those of gentle breeding, and hence most of our crimes of violence are committed by those whose lives are those of squalor. But"—and here Mr. Tutt's voice rose indignantly—"our greatest mistake is to assume that crimes of violence are the most dangerous to the state, for they are not. They cause greater disturbance and perhaps more momentary inconvenience, but they do not usually evince much moral turpitude. After all, it does no great harm if one man punches another in the head, or even in a fit of anger sticks a dagger in him. The police can easily handle all that. The real danger to the community lies in the crimes of duplicity—the cheats, frauds, false pretenses, tricks and devices, flimflams—practised most successfully by well-dressed gentlemanly crooks of polished manners."

By this time the kettle was boiling cheerfully, quite as if no such thing as criminal law existed at all, and Miss Wiggin began to make the tea.

"All the same," she ruminated, "people—particularly very poor people—are often driven to crime by necessity."

"It's Nature's first law," contributed Tutt brightly.

Mr. Tutt uttered a snort of disgust.

"It may be Nature's first law, but it's about the weakest defense a guilty man can offer. 'I couldn't help myself' has always been the excuse for helping oneself!"

"Rather good—that!" approved Miss Wiggin. "Can you do it again?"

"The victim of circumstances is inevitably one who has made a victim of someone else," blandly went on Mr. Tutt without hesitation.

"Ting-a-ling! Right on the bell!" she laughed.

"It's true!" he assured her seriously. "There are two defenses that are played out—necessity and instigation. They've never been any good since the Almighty overruled Adam's plea in confession and avoidance that a certain female co-defendant took advantage of his hungry innocence and put him up to it."

"No one could respect a man who tried to hide behind a woman's skirts!" commented Tutt.

"Are you referring to Adam?" inquired his partner. "Anyhow, come to think of it, the maxim is not that 'Necessity is the first law of Nature,' but that 'Necessity knows no law.'"

"I'll bet you—" began Tutt. Then he paused, recalling a certain celebrated wager which he had lost to Mr. Tutt upon the question of who cut Samson's hair. "I bet you don't know who said it!" he concluded lamely.

"If I recall correctly," ruminated Mr. Tutt, "Shakspere says in 'Julius Caesar' that 'Nature must obey necessity'; while Rabelais says 'Necessity has no law'; but the quotation we familiarly use is 'Necessity knows no law except to conquer,' which is from Publilius Syrus."

"From who?" cried Tutt in ungrammatical surprise.

"Never mind!" soothed Miss Wiggin. "Anyway, it wasn't Raphael B. Hogan."

"Who certainly completely satisfies your definition so far as preying upon the ignorant and helpless is concerned," said Mr. Tutt. "That man is a human hyena—worse than a highwayman."

"Yet he's a swell dresser," interjected Tutt. "Owns his house and lives in amity with his wife."

"Doubtless he's a loyal husband and a devoted father," agreed Mr. Tutt. "But so, very likely, is the hyena. Certainly Hogan hasn't got the excuse of necessity for doing what he does."

"Don't you suppose he has to give up good and plenty to somebody?" demanded Tutt. "Cops and prison keepers and bondsmen and under sheriffs, and all kinds of crooked petty officials. I should worry!"

"Great fleas have little fleas upon their backs to bite 'em,And little fleas have lesser fleas, and so ad infinitum,"

quoted Miss Wiggin reminiscently.

"A flea has to be a flea," continued Tutt. "He, or it, can't be anything else, but Hogan doesn't have to be a lawyer. He could be an honest man if he chose."

"He? Not on your life! He couldn't be honest if he tried!" roared Mr. Tutt. "He's just a carnivorous animal! A man eater! They talk about scratching a Russian and finding a Tartar; I'd hate to scratch some of our legal brethren."

"So would I!" assented Tutt. "I guess you're right, Mr. Tutt. Christianity and the Golden Rule are all right in the upper social circles, but off Fifth Avenue there's the same sort of struggle for existence that goes on in the animal world. A man may be all sweetness and light to his wife and children and go to church on Sundays; he may even play pretty fair with his own gang; but outside of his home and social circle he's a ravening wolf; at least Raphael B. Hogan is!"

The subject of the foregoing entirely accidental conversation was at that moment standing contemplatively in his office window smoking an excellent cigar preparatory to returning to the bosom of his family. Raphael B. Hogan believed in taking life easily. He was accustomed to say that outside office hours his time belonged to his wife and children; and several times a week he made it his habit on the way home to supper to stop at the florist's or the toy shop and bear away with him inexpensive tokens of his love and affection. On the desk behind him, over which in the course of each month passed a lot of very tainted money, stood a large photograph of Mrs. Hogan, and another of the three little Hogans in ornamented silver frames, and his face would soften tenderly at the sight of their self-conscious faces, even at a moment when he might be relieving a widowed seamstress of her entire savings-bank account. After five o'clock this hyena purred at his wife and licked his cubs; the rest of the time he knew no mercy.

But he concealed his cruelty and his avarice under a mask of benignity. He was fat, jolly and sympathetic, and his smile was the smile of a warm-hearted humanitarian. The milk of human kindness oozed from his every pore. In fact, he was always grumbling about the amount of work he had to do for nothing. He was a genial, generous host; unostentatiously conspicuous in the local religious life of his denomination; in court a model of obsequious urbanity, deferential to the judges before whom he appeared and courteous to all with whom he was thrown in contact. A good-natured, easy-going, simple-minded fat man; deliberate, slow of speech, well-meaning, with honesty sticking out all over him, you would have said; one in whom the widow and the orphan would have found a staunch protector and an unselfish friend. And now, having thus subtly connoted the character of our villain, let us proceed with our narrative.

The telephone buzzed on the wall set beside him.

"That you, chief?" came the voice of Simpkins.

"Yep."

"Got one off Delany."

"What is it?"

"Kid smashed a window—malicious mischief. Held for examination to-morrow at two. Five hundred bail."

"Any sugar?"

"Don't know. Says his father's dead and mother earns seventeen a week in a sweatshop and sends him to school. Got some insurance. I'm going right round there now."

"Well," replied Hogan, "don't scare her by taking too much off her at first. I suppose there's evidence to hold him?"

"Sure. Delany says he saw it."

"All right. But go easy! Good night."

"Leave that to me, chief!" assured Simpkins. "See you to-morrow."

It will be observed that in this professional interchange nothing at all was said regarding the possibility of establishing Tony's innocence, but that on the contrary Mr. Simpkins' mind was concentrated upon his mother's ability to pay. This was the only really important consideration to either of them. But Hogan did not worry, because he knew that Simpkins would skilfully entangle Mrs. Mathusek in such a web of apprehension that rather than face her fears she would if necessary go out and steal the money. So Mr. Raphael B. Hogan hung up the receiver and with his heart full of gentle sympathy for all mankind walked slowly home, pausing to get some roses for Mrs. Hogan and to buy a box for Daddy Long Legs at the Strand, for whenever he got a new case he always made it the occasion for a family party, and he wanted the children to benefit by passing an evening under the sweet influence of Miss Pickford.

Now just at the moment that his employer was buying the roses Mr. Simpkins entered the apartment of Mrs. Mathusek and informed her of Tony's arrest and incarceration. He was very sympathetic about it, very gentle, this dapper little man with the pale gray eyes and inquisitive, tapirlike nose; and after the first moment of shock Mrs. Mathusek took courage and begged the gentleman to sit down. There are always two vultures hanging over the poor—death and the law; but of the two the law is the lesser evil. The former is a calamity; the latter is a misfortune. The one is final, hopeless, irretrievable; from the other there may perhaps be an escape. She knew Tony was a good boy; was sure his arrest was a mistake, and that when the judge heard the evidence he would let Tony go. Life had dealt hardly with her and made her an old woman at thirty-four, really old, not only in body but in spirit, just as in the middle ages the rigor of existence made even kings old at thirty-five. What do the rich know of age? The women of the poor have a day of spring, a year or two of summer, and a lifetime of autumn and winter.

Mrs. Mathusek distrusted the law and lawyers in the abstract, but Mr. Simpkins' appearance was so reassuring that he almost counteracted in her mind the distress of Tony's misfortune. He was clearly a gentleman, and she had a reverential regard for the gentry. What gentlefolk said was to be accepted as true. In addition this particular gentleman was learned in the law and skilled in getting unfortunate people out of trouble. Now, though Mr. Simpkins possessed undoubtedly this latter qualification, it was also true that he was equally skilled in getting people into it. If he ultimately doubled their joys and halved their sorrows he inevitably first doubled their sorrows and halved their savings. Like the witch in Macbeth: "Double, double toil and trouble." His aims were childishly simple: First, to find out how much money his victim had, and then to get it.