Part 9

"Not a cigar, I thank you," replied the man, "but if you will permit me I will light my pipe." The two men stopped. Barker took a short pipe and a pouch of tobacco from his pocket, filled the pipe and lighted it; as he was about to return the pouch to his coat pocket, an old apple-woman, hobbling past, caught the odor and stopped.

"Fur de love of Hivin, Mister," she drawled, "give me a pipe uv yer terbaccy?" Barker laughed, tossed her the pouch, and the three hurried on.

At the corner indicated the men stopped. The Police Chief examined the handcuffs carefully to see that they were all right; then they drew back in the shadow and waited for the cab. Eleven o'clock came and passed and the cab did not appear. Mr. Rockham paced the sidewalk nervously and the policemen gathered close around Barker.

At half-past eleven o'clock Barker straightened up, shrugged his shoulders, and turned to the Police Chief. "It is no use," he said, "they are not here and they never will come now."

"What!" cried the Police Chief savagely, "do you mean that we are fooled?"

"Yes," said Barker, "all of us. It is no use I tell you, the thing is over."

"It is not over with you, my man," growled the Chief. "Here, sergeant, get Mr. Rockham his money and let us lock this fellow up."

The sergeant turned and thrust his hand into Barker's outside coat-pocket, then his chin dropped and he turned white. "It is gone!" he muttered.

"Gone!" shouted Rockham; "search the rascal!"

The sergeant began to go carefully over the man. Suddenly he stopped. "Chief," he muttered, "it was in that tobacco pouch."

The Police Chief staggered back and spun round on his heel. "Angels of Hell!" he gasped, "it was a cute trick, and it threw us all, every one of us."

Rockham bounded forward and brought his hand down heavily on Barker's shoulder. "As for you, my fine fellow," he said, bitterly, "we have you all right and we will land you in Sing Sing."

Barker was silent. In the dark the men could not see that he was smiling.

III.

The court-room of Judge Walter P. Wright was filled with an interested audience of the greater and unpunished criminals of New York. The application of Barker for a _habeas corpus_, on the ground that he had committed no crime, had attracted wide attention. It was known that the facts were not disputed, and the proceeding was a matter of wonder.

Some days before, the case had been submitted to the learned judge. The attorneys for the People had not been anxious enough to be interested, and looked upon the application as a farce. The young man who appeared for Barker announced that he represented one Randolph Mason, a counsellor, and was present only for the purpose of asking that Barker be discharged, and for the further purpose of filing the brief of Mason in support of the application. He made no argument whatever, and had simply handed up the brief, which the attorneys for the People had not thought it worth their while to examine.

Barker sat in the dock, grim and confident. The attorneys for the commonwealth were listless. The audience was silent and attentive. It was a vital matter to them. If Barker had committed no crime, what a rich, untramped field was open. The Judge laid his hand upon the books piled up beside him and looked down at the bar.

"This proceeding," he began, "is upon the application of one Lemuel Barker for a writ of _habeas corpus_, asking that he be discharged from custody, upon the ground that he has committed no crime punishable at common law or under the statutes of New York. An agreed state of facts has been submitted, upon which he stands charged by the commonwealth with having obtained five thousand dollars from one Cornelius Rockham by false pretences. The facts are, briefly, that on the 17th day of December Barker called at the residence of Rockham and said that he desired to make a proposition looking to the recovery of the lost child of said Rockham, but he desired to make it in the presence of witnesses, and would return at ten o'clock that night. Pursuant to his appointment, Barker again presented himself at the residence of said Rockham, and, in the presence of witnesses, declared, in substance, that at that time (then ten o'clock) he knew nothing of the said child, could not produce it, and could give no information in regard to it, but that at eleven o'clock he would know where the child was and would produce it; and that, if the said Rockham would then and there pay him five thousand dollars, he would at eleven o'clock take them to the lost child. The money was paid and the transaction completed.

"At eleven o'clock, Barker took the men to a certain corner in the upper part of this city, and it there developed that the entire matter was a scheme on his part for the purpose of obtaining the said sum of money, which he had in some manner disposed of; and that he in fact knew nothing of the child and never intended to produce it.

"The attorneys for the People considered it idle to discuss what they believed to be such a plain case of obtaining money under false pretences; and I confess that upon first hearing I was inclined to believe the proceeding a useless imposition upon the judiciary. I have had occasion to change my opinion."

The attorneys present looked at each other with wonder and drew their chairs closer to the table. The audience moved anxiously.

"The prisoner," continued the Judge, "has filed in his behalf the remarkable brief of one Randolph Mason, a counsellor. This I have read, first, with curiosity, then interest, then wonder, and, finally, conviction. In it the crime sought to be charged is traced from the days of the West Saxon Wights up to the present, beginning with the most ancient cases and ending with the later decisions of our own Court of Appeals. I have gone over these cases with great care, and find that the vital element of this crime is, and has ever been, the false and fraudulent representation or statement as to an _existing_ or _past fact_. Hence, no representation, however false, in regard to a _future_ transaction can be a crime. Nor can a false statement, _promissory_ in its nature, be the subject of a criminal charge.

"To constitute this crime there must always be a false representation or statement as to a _fact_, and that _fact_ must be a _past_ or an _existing fact_. These are plain statements of ancient and well settled law, and laid here in this brief, almost in the exact language of our courts.

"In this case the vital element of crime is wanting. The evidence fails utterly to show false representation as to any _existing fact_. The prisoner, Barker, at the time of the transaction, positively disclaimed any knowledge of the child, or any ability to produce it. What he did represent was that he would know, and that he would perform certain things, in the future. The question of remoteness is irrelevant. It is immaterial whether the future time be removed minutes or years.

"The false representation complained of was wholly in regard to a future transaction, and essentially promissory in its nature, and such a wrong is not, and never has been, held to be the foundation of a criminal charge."

"But, if your Honor please," said the senior counsel for the People, rising, "is it not clearly evident that the prisoner, Barker, began with a design to defraud; that that design was present and obtained at the time of this transaction; that a representation was made to Rockham for the purpose of convincing him that there then existed a _bona fide_ intention to produce his child; that money was obtained by false statements in regard to this intention then existing, when in fact such intention did not exist and never existed, and statements made to induce Rockham to believe that it did exist were all utterly false, fraudulent, and delusive? Surely this is a crime."

The attorney sat down with the air of one who had propounded an unanswerable proposition. The Judge adjusted his eyeglasses and began to turn the pages of a report. "I read," he said, "from the syllabus of the case of The People of New York vs. John H. Blanchard. 'An indictment for false pretences may not be founded upon an assertion of an existing intention, although it did not in fact exist. There must be a false representation as to an existing fact.'

"Your statement, sir, in regard to intention, in this case is true, but it is no element of crime."

"But, sir," interposed the counsel for the People, now fully awake to the fact that Barker was slipping from his grasp, "I ask to hold this man for conspiracy and as a violator of the Statute of Cheats."

"Sir," said the Judge, with some show of impatience, "I call your attention to Scott's case and the leading case of Ranney. In the former, the learned Court announces that if the false and fraudulent representations are not criminal there can be no conspiracy; and, in the latter, the Court says plainly that false pretences in former statutes, and gross fraud or cheat in the more recent acts, mean essentially the same thing.

"You must further well know that this man could not be indicted at common law for cheat, because no false token was used, and because in respect to the instrumentality by which it was accomplished it had no special reference to the public interest.

"This case is most remarkable in that it bears all the marks of a gross and detestable fraud, and in morals is a vicious and grievous wrong, but under our law it is no crime and the offender cannot be punished."

"I understand your Honor to hold," said the baffled attorney, jumping to his feet, "that this man is guilty of no crime; that the dastardly act which he confesses to have done constitutes no crime, and that he is to go out of this court-room freed from every description of liability or responsibility to any criminal tribunal; that the law is so defective and its arm so short that it cannot pluck forth the offender and punish him when by every instinct of morality he is a criminal. If this be true, what a limitless field is open to the knave, and what a snug harbor for him is the great commonwealth of New York!"

"I can pardon your abruptness," said the Judge, looking down upon the angry and excited counsellor, "for the reason that your words are almost exactly the lament of presiding Justice Mullin in the case of Scott. But, sir, this is not a matter of sentiment; it is not a matter of morality; it is not even a matter of right. It is purely and simply a matter of law, and there is no law."

The Judge unconsciously arose and stood upright beside the bench. The audience of criminals bent forward in their seats.

"I feel," he continued, "for the first time the utter inability of the law to cope with the gigantic cunning of Evil. I appreciate the utter villainy that pervaded this entire transaction. I am convinced that it was planned with painstaking care by some master mind moved by Satanic impulse. I now know that there is abroad in this city a malicious intelligence of almost infinite genius, against which the machinery of the law is inoperative. Against every sentiment of common right, of common justice, I am compelled to decide that Lemuel Barker is guilty of no crime and stands acquit."

It was high noon. The audience of criminals passed out from the temple of so-called Justice, and with them went Lemuel Barker, unwhipped and brazen; now with ample means by which to wrest his fellows in villainy from the righteous wrath of the commonwealth. They were all enemies of this same commonwealth, bitter, never wearying enemies, and to-day they had learned much. How short-armed the Law was! Wondrous marvel that they had not known it sooner! To be sure they must plan so cunningly that only the Judge should pass upon them. He was a mere legal machine.

He was only the hand applying the rigid rule of the law. The danger was with the jury; there lay the peril to be avoided. The jury! how they hated it and feared it! and of right, for none knew better than they that whenever, and where-ever, and however men stop to probe for it, they always find, far down in the human heart, a great love of common right and fair dealing that is as deep-seated and abiding as the very springs of life.

VI--THE SHERIFF OF GULLMORE

_[The crime of embezzlement here dealt with is statutory. The venue of this story could have been laid in many other States; the statutes are similar to a degree. See the Code of West Virginia; also the late case of The State vs. Bolin, 19 Southwestern Reporter, 650; also the long list of ancient cases in Russell on Crimes, 2d volume.]_

I.

IT is hard luck, Colonel," said the broker, "but you are are not the only one skinned in the deal; the best of them caught it to-day. By Jupiter! the pit was like Dante's Inferno!"

"Yes, it's gone, I reckon," muttered the Colonel, shutting his teeth down tight on his cigar; "I guess the devil wins every two out of three."

"Well," said the broker, turning to his desk, "it is the fortune of war."

"No, young man," growled the Colonel, "it is the blasted misfortune of peace. I have never had any trouble with the fortune of war. I could stand on an ace high and win with war. It is peace that queers me. Here in the fag-end of the nineteenth century, I, Colonel Moseby Allen, sheriff of Gull-more County, West Virginia, go up against another man's game,--yes, and go up in the daytime. Say, young man, it feels queer at the mellow age of forty-nine, after you have been in the legislature of a great commonwealth, and at the very expiration of your term as sheriff of the whitest and the freest county in West Virginia,--I say it feels queer, after all those high honors, to be suddenly reminded that you need to be accompanied by a business chaperon."

The Colonel stood perfectly erect and delivered his oration with the fluency and the abandon of a southern orator. When he had finished, he bowed low to the broker, pulled his big slouch hat down on his forehead, and stalked out of the office and down the steps to the street.

Colonel Moseby Allen was built on the decided lines of a southern mountaineer. He was big and broad-shouldered, but he was not well proportioned. His body was short and heavy, while his legs were long. His eyes were deep-set and shone like little brown beads. On the whole, his face indicated cunning, bluster, and rashness. The ward politician would have recognized him among a thousand as a kindred spirit, and the professional gambler would not have felt so sure of himself with such a face across the table from him.

When the Colonel stepped out on the pavement, he stopped, thrust his hands into his pockets, and looked up and down Wall Street; then he jerked the cigar out of his mouth, threw it into the gutter, and began to deliver himself of a philippic upon the negative merits of brokers in general, and his broker in particular. The Virginian possessed a vocabulary of smooth billingsgate that in vividness and diversity approached the sublime. When he had consigned some seven generations of his broker's ancestry to divers minutely described localities in perdition, he began to warm to his work, and his artistic profanity rolled forth in startling periods.

The passers-by stopped and looked on in surprise and wonder. For a moment they were half convinced that the man was a religious fanatic, his eloquent, almost poetic, tirade was so thoroughly filled with holy names. The effect of the growing audience inspired the speaker. He raised his voice and began to emphasize with sweeping gestures. He had now finished with the broker's ancestry and was plunging with a rush of gorgeous pyrotechnics into the certain future of the broker himself, when a police officer pushed through the crowd and caught the irate Virginian by the shoulder.

Colonel Allen paused and looked down at the officer.

"You," he said, calmly, "I opine are a minion of the law; a hireling of the municipal authorities."

"See here," said the officer, "you are not allowed to preach on the street. You will have to come with me to the station-house."

The Colonel bowed suavely. "Sir," he said, "I, Colonel Moseby Allen, sheriff of Gullmore County in the Mountain State of West Virginia, am a respecter of the law, even in the body of its petty henchmen, and if the ordinances of this Godforsaken Gomorrah are such that a free-born American citizen, twenty-one years old and white, is not permitted the inalienable privilege of expressing his opinion without let or hindrance, then I am quite content to accompany you to the confines of your accursed jail-house."

Allen turned round and started down the street with the officer. He walked a little in advance, and continued to curse glibly in a low monotone. When they were half way to the corner below, a little man slipped out of the crowd and hurried up to the policeman. "Mike," he whispered, putting his hand under the officer's, "here is five for you. Turn him over to me."

The officer closed his hand like a trap, stepped quickly forward, and touched his prisoner on the shoulder.

As the Virginian turned, the officer said in a loud voice: "Mr. Parks, here, says that he knows you, and that you are all right, so I 'll let you go this time." Then, before any reply could be made, he vanished around the corner.

Colonel Allen regarded his deliverer with the air of a world-worn cynic. "Well," he said, "one is rarely delivered from the spoiler by the hand of his friend, and I cannot now recall ever having had you for an enemy. May I inquire what motive prompts this gracious courtesy?"

"Don't speak so loud," said Parks, stepping up close to the man. "I happen to know something about your loss, Colonel Allen, and perhaps also a way to regain it. Will you come with me?"

The Virginian whistled softly. "Yes," he said.

II.

This is a fine hotel," observed Colonel Allen, beginning to mellow under the mystic spell of a five-course dinner and a quart of Cliquot. "Devilish fine hotel, Mr. Parks. All the divers moneys which I in my official capacity have collected in taxes from the fertile county of Gullmore, would scarcely pay for the rich embellishment of the barber shop of this magnificent edifice."

"Well, Colonel," said the bald Parks, with a sad smile, "that would depend upon the amount of the revenues of your county. I presume that they are large, and consequently the office of sheriff a good one."

"Yes, sir," answered the Virginian, "it is generally considered desirable from the standpoint of prominence. The climate of Gullmore is salubrious. Its pasture lands are fertile, and its citizens cultured and refined to a degree unusual even in the ancient and aristocratic counties of the Old Dominion. And, sir,"--here the Colonel drew himself up proudly, and thrust his hand into the breast of his coat,--"I am proud, sir,--proud to declare that from time to time the good citizens of Gullmore, by means of their suffrage, and with large and comfortable majorities, have proclaimed me their favorite son and competent official. Six years ago I was in the legislature at Charleston as the trusted representative of this grand old county of Gullmore; and four years ago, after the fiercest and most bitterly contested political conflict of all the history of the South, I was elected to that most important and honorable office of sheriff,--to the lasting glory of my public fame, and the great gratification of the commonwealth."

"That gratification is now four years old?" mused Parks.

Colonel Moseby Allen darted a swift, suspicious glance at his companion, but in a moment it was gone, and he had dropped back into his grandiloquent discourse. "Yes, sir, the banner county of West Virginia, deserting her ancient and sacred traditions, and forgetting for the time the imperishable precepts of her patriotic fathers, has gone over to affiliate with the ungodly. We were beaten, sir,--beaten in this last engagement,--horse, foot, and dragoons,--beaten by a set of carpet-baggers,--a set of unregenerate political tricksters of such diabolical cunning that nothing but the gates of hell could have prevailed against them. Now, sir, now,--and I say it mournfully, there is nothing left to us in the county of Gullmore, save only honor."

"Honor," sneered Parks, "an imaginary rope to hold fools with! It wont fill a hungry stomach, or satisfy a delinquent account." The little clerk spoke the latter part of his sentence slowly and deliberately.

Again the suspicious expression passed over the face of Colonel Allen, leaving traces of fear and anxiety in its wake. His eyes, naturally a little crossed, drew in toward his nose, and the muscles around his mouth grew hard. For a moment he was silent, looking down into his glass; then, with an effort, he went on: "Yes, the whole shooting-match is in the hands of the Philistines. From the members of the County Court up to the important and responsible position which I have filled for the last four years, and when my accounts are finally wound up, I----"

"Your accounts," murmured Parks, "when they are finally wound up, what then?"

Every trace of color vanished from the Virginian's face, his heavy jaws trembled, and he caught hold of the arms of the chair to steady himself.

Parks did not look up. He seemed deeply absorbed in studying the bottom of his glass. For a moment Colonel Moseby Allen had been caught off his guard, but it was only for a moment. He straightened up and underwent a complete transformation. Then, bending forward, he said, speaking low and distinctly: "Look here, my friend, you are the best guesser this side of hell. Now, if you can pick a winning horse we will divide the pool."

The two men were at a table in a corner of the Hoffman café, and, as it chanced, alone in the room. Parks glanced around quickly, then he leaned over and said: "That depends on just one thing, Colonel."

"Turn up the cards," growled the Virginian, shutting his teeth down tight on his lip.

"Well," said Parks, "you must promise to stick to your rôle to the end, if you commence with the play."

The southerner leaned back in his chair and stroked his chin thoughtfully. Finally he dropped his hand and looked up. "All right," he muttered; "I'll stand by the deal; throw out the cards."

Parks moved his chair nearer to the table and leaned over on his elbow. "Colonel," he said, "there is only one living man who can set up a successful counter-plot against fate, that is dead certain to win, and that man is here in New York to-day. He is a great lawyer, and besides being that, he is the greatest plotter since the days of Napoleon. Not one of his clients ever saw the inside of a prison. He can show men how to commit crimes in such a way that the law cannot touch them. No matter how desperate the position may be, he can always show the man who is in it a way by which he can get out. There is no case so hopeless that he cannot manage it. If money is needed, he can show you how to get it--a plain, practical way, by which you can get what you need and as much as you need. He has a great mind, but he is strangely queer and erratic, and must be approached with extreme care, and only in a certain way. This man," continued the little clerk, lowering his voice, "is named Randolph Mason. You must go to him and explain the whole matter, and you must do it just in the way I tell you."