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Volume 19, Number 1 (1995) reprinted by permission Legal Studies Forum MR. TUTT'S JURISPRUDENTIAL JOURNEY: THE STORIES OF ARTHUR TRAIN FRANCIS M. NEVINS School of Law St. Louis University relatively recent novels like Scott Turow's Presumed Innocent and Tom Wolfe's The Bonfire of the Vanities, both published in 1987, or, if they have slightly longer memories, with works like John Jay Osborn Jr.'s The Paper Chase (1971). Middle-aged readers are more likely to think back to the golden years of the Warren Court and figures like Perry Mason and Atticus Finch. But long before any of those books and barristers sprang from their creators' imaginations, the lawyer of American fiction was Arthur Train's Mr. Tutt. Ephraim Tutt took center stage in more than eighty short stories, most of them published in the Saturday Evening Post between 1919 and 1945, then assembled into hardcover collections issued by Charles Scribner's Sons and irregularly reshuffled into large "Best of Mr. Tutt" volumes. After Train's death his once hugely popular character faded into oblivion. Having reexam- ined all the Mr. Tutt stories for this essay, I am satisfied that oblivion is precisely what many of them deserve. Train's best tales, however, still hold their rewards, stemming not from the quality of his prose, which suffers all too often from lawyerly leaden footedness, nor from the complexity of his charac- ters, who all too often are stereotypes or worse, but rather from the links connecting them with Train's law practice and life and, most important of all, from their treatment of some of the fundamental themes of jurisprudence. II. Arthur Cheney Train's book of reminiscences and reflections on his life fills 500 pages, many of them published in a five-part Saturday Evening Post serialization (17 Sept - 15 Oct 1938) before the hardcover edition was released. But those in search of what made him tick as a person will find reading My Day in Court (Scribners, 1939) an exercise in frustration. If a prize were offered for writing the biographically least helpful book about oneself, Train would easily make the short list.1 He tells plenty of war stories from his years as prosecu- tor, private attorney and full-time author and shows in rich detail how his fiction often grew out of his legal files. But of his life outside working hours he says hardly a word2, and almost every one of the 100 subheadings under the index entry for "Train, Arthur" relates either to writing or law, so that even the most basic facts about him must be hunted for in other sources.3 And since no one in the half century since his death has found him interesting enough to warrant a genuine biography, the connections that this essay will draw between his best known fiction and his life are limited willy-nilly to his professional careers. As his zeal for privacy may have hinted, Train was a New England Brahmin, "the native of a region traditionally inclined towards predestination . . . ." (6) He was born on September 6, 1875 into a family well endowed with money and prestige and spent his youth in "the almost rural environment of the sunny side of Marlboro Street, on Boston's Back Bay." (161) His father, Charles Russell Train (1817-1885), is described in My Day in Court as a "rather stocky" man (481) and as "a friend of Lincoln and Charles Sumner, a veteran of the Civil War, and afterwards Attorney General of Massachusetts," (370) an office the senior Train held between 1872 and 1879.4 (Several sources wrongly give the dates as between 1873 and 1890.) As a child Arthur was taken by his father "to the homes of Emerson,, Holmes, Lowell and Longfellow, and on Sunday afternoons to the old Union Club where I met the 'war governors' John D. Robinson and John D. Long, Generals Grant and Sheridan and many veterans of lesser distinction and valor, such as Benjamin E Butler." (370) This is all we ever learn about Charles Russell Train. Arthur's mother, born Sarah M. Cheney in 1836, is never mentioned once. "I cannot remember when I did not have an overmastering impulse to write. It was a passion even in my childhood." (5) Train attended Boston's Prince School, then Boston Latin School, then St. Paul's School in Concord, New Hampshire, then, inevitably, Harvard. While a student at prep school and college he "deluged the weeklies and monthlies with contributions." (5) He studied at Harvard from 1892 to 1896, "a time when any American boy could get there as broad and enlightened an education in composition and literature as at either Oxford or Cambridge." (5) His major of course was English, and at the urging of professors like George Lyman Kittredge and Charles Townsend Copeland he "devoured ... the works of Meredith, Hardy, Howells, Stevenson, Mary E. Wilkins, Sarah Orne Jewett, and during my junior and senior years of Conrad and the newly discovered Rudyard Kipling . . . ." (5) He received his A.B. from Harvard in 1896 but didn't then set out to make his name as a writer. because "among the circle of Bostonians to which my family belonged, the writing of fiction was looked upon as, at best, a frivolous and even as a rather scandalous vocation. A young man who insisted upon becoming an artist, author, musician or sculptor was apt to find himself a disinherited outcast .... The New Englander of my boyhood days had a right to life and liberty of a sort, but not to the frank pursuit of happiness."(6) Besides, the creative life was presumed to mean a life without money, and "[p]overty and respectability did not walk hand in hand in Puritan New England, where a comfortable bank account has always been regarded as a sign of God's grace."(6), Like any pru- dent son of a former Massachusetts attorney general, Train chose to enroll in Harvard Law School. In My Day in Court he draws a veil around his three years as a law student, describing himself as "an honor man" (131) but mentioning not a single course, professor, incident or insight from that period. If one judged by its impact on his future career as a fiction writer, the event most crucial to Train's development during law school was the publication of Justice Holmes' seminal essay 'The Path of the Law."5 In April 1897, late in his second semester, he married Ethel Kissam (1875-1923), who bore him three daughters and a son, but none of these five rate space in his reminiscences either.6 He received his Ll.B. in 1899, became a member of the Massachusetts Bar later that year, and spent "a few months in a conventional Boston law office" (6) before relocating to New York City, where he worked briefly and without pay for the Legal Aid Society and then found a job with the firm of Robinson, Biddle & Ward at 160 Broadway. But he quickly became "bored, impatient and unhappy" (6) with private practice and used family connections to get himself appointed an Assis- tant District Attorney for New York County, starting January 11, 1901. That at first the position was an unpaid slot suggests that Train at this time was being subsidized by his mother or a bequest in his father's will. His office was on the fourth floor of the Criminal Courts Building, at the corner of White and Centre Streets, connected by the "Bridge of Sighs" over Franklin Street with the Tombs Prison. Train describes the place as "a hideous monstrosity of red brick with stone trimmings, . . . its buckling walls having been made repeatedly the object of official condemnation as a menace to human life - criminal and otherwise." (11) The building, covering a full city block, was "one of the gloomiest structures in the world. Tier on tier it rises above a huge central rotunda, rimmed by dim mezzanines and corridors upon which the courtrooms open, and crowned by a ... glass roof encrusted with soot through which filters a soiled and viscous light. The air is rancid with garlic, stale cigar smoke, sweat and the odor of prisoners' lunch. The corridors swarm with Negroes, Italians, blue-bloused Chinese, black-bearded rabbis, policemen, shyster lawyers and their runners, politicians big and little." (11) Here Train came into daily contact "with murderers, thieves, burglars, gangsters and confidence men, defaulters, English 'ticket-of-leave men,' un- frocked priests, ex-convicts, 'lamisters,' army deserters, outcast and erring sons and daughters, pimps, prostitutes, exiles, impostors." (12) He tried thousands of cases and prosecuted "some hundreds of murderers, several of whom went to the chair. Yet the astonishing thing was that I discovered few who seemed thoroughly bad or even worse than a multitude who had escaped entanglement in the criminal law." (12-13) Even the career criminals in their non-working hours "were apt to be homebodies, like more reputable citizens, fond of their children and friends, responsive to sympathy or kindness and keenly appreci- ative of fair treatment." (13) The sea of faces was so vast that "at the end of seven years ... I could not, when I met a man on the street, tell in most cases whether I had gone to college with him, prosecuted cases before him as a juror or sent him to jail." (370) Train the aspiring author would have had to be deaf, blind and without a sense of smell not to recognize the potential of this environment, and it was during his years with the District Attorney's office that he began to sell both fiction and nonfiction to some of the country's highest-paying magazines. His first published story appeared in the summer of 1904 and his first Saturday Evening Post tale a year later. Within a few years of his appointment as a prosecutor Train burned out. "The trial of cases had become almost automatic. I could make an objec- tion in my sleep and a summation appropriate to any variety of offense while only half awake. I had acquired all the criminal law necessary - which really was very little indeed." (253) What kept him from leaving the job was both its drama and the fact that it offered so much literary material. Moreover, the regularity of my official working hours, which were from 10 a.m. to 1 p.m. and from 2 to 4, followed by a short period of consultation or preparation for the next day, assured me an amount of time for writing impossible in civil prac- tice." (253) Finally, in the summer of 1908, he resigned. "It took a consider- able amount of resolution to give up a salary of $7500 for working five hours a day, with a six weeks' summer vacation; a comfortable office with no over- head, where . . . one was kowtowed to and flattered; where there was always something exciting going on, and where one could count on a dozen or so jolly fellows to have lunch with and swap stories every day. Yes, it was a distinct wrench to tear oneself away from that, disgusting, grimy old building and an even greater one to break the habits formed over so long a period." (253) Train launched his private practice by renting a one-room office at 32 Nassau Street. The venture was not a success, and he became so depressed that for a while he was unable to write. "Occasionally I would be assigned to defend some penniless murderer (usually with another lawyer to whom the presiding judge wished to show a favor and with whom I had to split the $500 fee) and would be astonished to find how easy it was, after my experience as an assistant district attorney, to throw nuts into the prosecution's machinery." (254) But the noncriminal cases he hoped for rarely came his way. "My ignorance of civil law and procedure was abysmal, and I never much improved it. I can see now that through unfitting myself for the general practice of my profession, by specializing for seven years in the prosecution of crime, I has- tened the inevitable denouement of abandoning law for letters .... One of the chief reasons that I became a writer was because I never in fact became a lawyer. If I was retained, as sometimes happened, to try a civil case it was always prepared and briefed for me by another attorney beforehand, I acting only as counsel. In this way I managed from time to time to make a fair showing. But, after trying without intermission a continuous stream of exciting cases for seven years, I could not bear to sit kicking my heels waiting for clients to turn up." (257) Instead of taking down his shingle and becoming a full-time writer as common sense would have seemed to dictate, he took the opposite route and opened a new office at 30 Broad Street in partnership with George H. Olney, a nephew of the man who had served as Grover Cleveland's Secretary of State. "The first year of Train & Olney was neither legally nor financially exciting." (261) Late in the summer of 1910 Train accepted an appointment as a deputy special attorney general to take over the district attorney's office in corrupt Queens County and "prosecute all the political crimes I could ferret out . . . ." (262) In the spring of 1911 he set sail for Europe to study continental legal systems and wound up in Italy as a de facto journalist reporting on the trial of various members of what we now call the Mafia. Later that year he got into a dispute with a magazine editor over whether he or the magazine owned various rights in one of his serial stories, a dispute that forced him to learn some copyright law and eventually to become one of the founders of the Authors League of America, drafting author-friendly allocation-of-rights con- tracts which the League would then pressure periodicals to adopt. In the fall of 1913 Train returned to the District Attorney's office, but both he and his then boss, Charles Albert Perkins, "dosed our desks in the old Criminal Courts Building on December 31, 1915" (335) and opened up a new partnership. "We took a suite of offices at 61 Broadway, overlooking the East River, and fur- nished them handsomely in new mahogany and even with a potted palm. There we sat and waited for business," (336) with Perkins reading advance sheets while Train wrote stories and novels, including the earliest tales of his most famous character, Mr. Tutt. What came the firm's way was "a mixture of queer unrelated cases, many of them with a criminal flavor, drawn to us by our reputation as former prosecutors - divorces, separations, annulments, actions for alienation of affec- tions, the defense of blackmail cases (in which we were unusually successful), will contests, accident and libel suits, embezzlements, and an occasional murder case." Perkins did all the witness interviews, legal research and brief drafting, with the courtroom work left to Train, who discovered "that private law prac- tice and the observation of the daily life of the city going on around me offered as much dramatic material for fiction as had the criminal courts." (336) In the summer of 1918, more than a year after the United States had entered World War I Train volunteered for service, was commissioned a major in the judge Advocate General's office and found himself performing idiotic duties under the official label of Military Intelligence, working out of what he called a "rookery" (350) on F Street in Washington, D.C. Soon after resuming civilian life and law practice he began to write and the Saturday Evening Post to publish the Mr. Tutt stories, which not only made him a household name but also conferred on him the role of America's lawyer author, the emissary between our legal sys- tem and its subjects. Late in 1921 he abandoned the practice for keeps, "with some forebo- dings but no qualms. For over twenty years .... I had lived upon the crimes and weaknesses, economic disasters, an sexual entanglements of my fellow men. I have neither remorse nor regrets that I no longer earn my living out of the misfortunes or difficulties of others." (368) As a full-time writer he con- tinued to turn out several tales of Mr. Tutt every year in addition to other works of fiction and journalism. For his day's output he would "seek congenial surroundings, usually an alcove in the library of my club [the Harvard Club of course], where I am unlikely to be interrupted and where I have no other distractions - except the snoring of those about to die of old age hard by." (491) After an hour of revising his previous day's product he would "go ahead at high pressure for a couple of hours until, having written some fifteen hund- red or two thousand words, I gradually taper off. After some form of light exercise followed by lunch, I am at it again for another two or three hours, varied by research work or the correcting of proof .... On a good day I will work six or seven hours, and on a poor one from two to three." (492) He was unable to compose on a typewriter because "I make too many corrections and interlineations" and refused to dictate his material "because, if I do, I become as stilted, verbose and redundant as a solicitor writing to a client." (492) His writing was done "in longhand at a table with a soft draughting pencil on a hard-surfaced yellow pad . . . ." (492) Train finds space in My Day in Court to reproduce a sample page of manuscript, to tell us the precise brand of pencil he favored and how he'd vary his posture if his back or neck ached, but fails to let us know that his first wife died less than two years into his new regime, on May 15, 1923; or that two and a half years later, on January 6, 1926, he married again; or that his second wife, Helen Coster Gerard (1889-1982), was the moth- er of his second son.7 From My Day in Court alone one might easily conclude that except for his writing Arthur had no life at all. The writing continued to support Train's family in affluence through the booming Twenties and the Depression-scarred Thirties, when they enjoyed both a fine home at 113 East 73rd Street in Manhattan and a summer place called Sol's Cliffs in Bar Harbor, Maine. On the evidence of his stories it would seem that he spent most of his leisure time pursuing various fish. Early in 1941 the 65-year-old Train was elected president of the National Institute of Arts and Letters. Two years later, on the publication of Yankee Lawyer. The Autobiography of Ephraim Tutt (Scribners, 1943), Train found himself the center of a legal and literary donnybrook when countless readers who had somehow missed the 80-odd Mr. Tutt adventures in the Post, and the twelve hardcover collections (including two huge omnibus volumes) that Scribners had published regularly since 1920, leaped to the conclusion that Ephraim Tutt was just as real a person as Arthur Train or they themselves. All sorts of people wrote to Train claiming they were related to his creation or demanding that Mr. Tutt handle a case for them.8 A Philadelphia attorney named Lewis R. Linet dis- covered that Yankee Lawyer was fiction and sued in New York Supreme Court to have the book's publication enjoined on grounds of breach of implied warranty and consumer fraud. Representing Train was the eminent attorney John W. Davis, who argued that no implied warranty attaches to any literary work and, more narrowly, that any reasonable purchaser of the book should have known it told the life story of an imagined character, like Daniel Defoe's alleged autobiography of Robinson Crusoe.9 The absence of the names Linet and Train from the Table of Cases volumes of West's Fifth Decennial Digest (1936-46) suggests that the controversy never generated a published judicial opinion. Most likely the complaint was dismissed. Train's health failed soon after the dust of this imbroglio blew away, and during most of 1945 he commuted from home to hospital for a series of operations. On December 22, just a week after the National Institute of Arts and Letters re-elected him as its president, he died of cancer. III. If we believe Train's autobiography, Mr. Tutt began life in his mind as an abstraction, a symbol of the lawyering philosophy Train had evolved during his seven years in the District Attorney's office. The Manhattan of this cen- tury's first decade was teeming with near-penniless immigrants still steeped in their native cultures - Italian, Syrian, Chinese and a dozen more - often unable to read or speak English and without a clue as to the nature of their legal obligations in their adopted homeland. Most of the people Train prosecu- ted were from one or another of these ethnic groups. The charge against them was usually murder or a similar serious crime against a fellow ethnic, and the defense counsel was incompetent or a shyster. Train came to believe it was part of his role to redress the balance. On one occasion "where the prisoner's attorney had been so inept and antagonizing in his manner as to seriously preju- dice his client's interests and I had leaned over backwards to even things up with the jury, the defendant on his conviction, being asked if he had anything to say before justice was pronounced, replied: 'I want to thank Mr. Train for his interest in me. He has done more to help me than my own lawyer."'(110) In time, Train tells us, there dawned on him a realization that had eluded him during all his philosophy classes at Harvard, namely that neither the legal system nor life itself offered justice. "Just as the laws of Nature were harsh and implacable, whose results must needs be set aright, if at all, in an apocryphal Hereafter, so the Laws of Man rarely, or never, did exact justice in any individual case. We merely did the best we could by applying legal rules- of-thumb based on the doctrine of averages, which we hoped in the long run - a very long run indeed - did make for justice." (113) The saving grace of a system Train saw as intolerable was that "within the technical limits set by the statutes jurors, sometimes aided by prosecutors on the one hand and [de- fense] attorneys on the other, did the best they could to even things up." (114) He believed it was the right and indeed the responsibility of jurors to "apply whenever possible the rules of ethics rather than of strict law or at least to allow considerable play to ethical considerations." (114) It was his experience "that juries, so far from doing what they were supposed to do, really treated crimes as sins, and temporarily acted as vicarious representatives of the Al- mighty in deciding what ought to be done about the transgressors," and it was his conclusion that "on the whole, although it wasn't the Law, this was a good thing. . . ." (114) Far from seeing himself as a guardian on the ramparts, saving civilization from the lawless, he was convinced "that even the worst [criminal defendants] had something admirable about them and should be judged, not according to legislative standards, but by their own, for which usually they were not responsible . . . ." and "that kindness, loyalty and courage were better tests of a man's rectitude than his respect for the letter of the statutes." (114) These views moved Train in the direction of "judging, and often acting, by technically extra-legal considerations, according to what might be called the laws of God rather than those of Man . . . ." (115) They also moved him to the first stage in the creation of his most famous character. "Gradually," he says, "there materialized in my mind a sort of protagonist of real justice .... Whenever I got up to try a case, no matter who was defending it in the flesh, this imaginary champion simultaneously arose and stood beside the defendant, his hand on the latter's shoulder .... Out of this ectoplasm" grew "the character of Ephraim Tutt, a sort of 'father- in-law' of the ignorant, helpless and underprivileged - a voluntary defender of those unjustly accused of crime." (115) This "early conception of a visionary adversary, defending the morally innocent but legally guilty, who by utilizing the technicalities of the law secured real justice for the prisoners at the bar," (481) developed no further until shortly after Train's discharge from the Army. Late one evening in March 1919, having just seen a performance of Potash and Perlmutter, Montague Glass' hit comedy play about two Jews in the garment trade,10 it occurred to Train that "had the two characters been lawyers .... they could have been made, to me at least, equally or even more amusing." (481) At that instant "Ephraim Tutt first stirred in my creative consciousness. In fact he burst forth full panoplied in hat, cane and stogy . . . ." (481) The image came to him from the memory of a white-painted clam- shell ashtray in his parents' house in Boston. On the inside of the shell a tall thin figure in stovepipe hat and frock coat was portrayed bending over to take a light from a short fat figure, the two men joined at their cigar tips. The pudgy figure reminded Train of his father and the slender one of a family friend but the names that suddenly sprang into his mind were Tutt and Mr. Tutt. The slender man, who developed into Ephraim Tutt, the one and only Mr. Tutt of the subsequent story cycle, Train envisaged "sitting in a swivel chair in his old-fashioned law office, his feet encased in 'Congress' shoes, crossed upon the desk in front of him. . . ." while the short tubby fellow, simply Tutt or on occasion Samuel Tutt but never Mr. Tutt, stood in the imaginary office with "his hands clasped beneath his coattails . . . ." (482) The next day Train went down to Atlantic City for an appointment with the legendary Saturday Evening Post editor George Horace Lorimer. That night after dinner at the Trocadero Hotel with Lorimer and two other regular contributors to the Post, Train said something to the editor about the embry- onic characters taking form inside him. Next morning as the two were being wheeled along the boardwalk in Atlantic City's version of the rickshaw, Lori- mer remarked: "You know, there might be a series in that suggestion of yours." (483) Then he recounted an anecdote from a St. Louis newspaper which he thought Train could adapt into the first tale in such a cycle. The result was "The Human Element," first of more than eighty Mr. Tutt stories that the Post would publish over the next quarter century.11 Almost twenty years after that beginning and half a dozen before his death, Train devoted a chapter of My Day in Court to the origins of his by then world-renowned character. Ephraim Tutt's physical appearance, he said, was borrowed from "an elderly Southern lawyer who, about twenty years ago,12 haunted one of the New York clubs. With his high-shouldered, ramshackle figure, his clean-shaven, wrinkled face, his long white hair, this courteous old Virginian was the counterfeit presentment of my hero - counterfeit I am glad to record, since he was later expelled from the club for stealing writing-paper." (484) In terms of characterization, Train went on, "I suppose that Mr. Tutt is a combination of most of the qualities which I would like to have, coupled with a few that are common to all of us. One critic has disposed of him by saying that his popularity is due to the fact that he is a hodge-podge of Puck, Robin Hood, Abraham Lincoln and Uncle Sam. I am willing to let it go at that." (484) Train said nothing in My Day in Court about where the name Tutt itself came from but dealt with the question in a later essay, "The Best Tutt Story of All," which comprises the first chapter of his last story collection, Mr Tutt Finds a Way (Scribners, 1945). "1 had known only one Tutt in my youth, an attractive girl from St. Louis, and, needing a short, snappy name for my old hero, . . . unblushingly filched hers." (14) My Day in Court claims that the plot of each Mr. Tutt story was "based on a formula, precisely as is a stage play. At the beginning the characters are introduced and a legal problem posed (Act I). The 'suspense,' or 'menace,' element is thereupon developed to a point at which it is seemingly impossible for justice to triumph (Act II). Then the old lawyer pulls a legal rabbit out of his stovepipe hat and saves the situation (Act III). Justice, in the shape of Mr. Tutt, triumphs over merely technical Law . . . ." (486) This is a fair account of what the stories had evolved into by the late Thirties, but if it accurately described the entire series we would have little excuse for revisiting Mr. Tutt fifty years after his creator's death. However, by going back to the beginning and examining the stories in roughly chronological order, we discover that at least for the first several years they are neither as formulaic nor as reassuring as Train near the end of his life would have us believe. In 1919, when he created Mr. Tutt and his cohorts, Train identified law, lawyering and the legal system with the brutality of the Criminal Courts Build- ing, and one primary value of the early stories in the cycle is that they catch the textures of that world so vividly. The dark oppressive courtrooms, the smells in the ancient corridors, the bureaucratic infighting, the prosecutors with their code of convict-the-bastard-whatever-it-takes, the abuses of power by political hacks in judges' robes, all are evoked with an acid cynicism suggestive of Mark Twain but unfortunately in a somewhat heavyhanded, longwinded and lawyerly style showing little trace of Twain's black humor.13 The Darwinian jungle atmosphere of the Criminal Courts Building is matched by that of New York's streets, and many early tales in the series include scenes in ethnic en- claves packed with immigrants clawing for survival, corrupt nightstick-wielding Irish cops, and petty criminals preying on other members of their own group. In Train's world, however, there is one safe haven where the rule of dog-eat-dog does not apply, namely the offices of Tutt & Tutt, Attorneys and Counselors at Law, located in lower Manhattan at 61 Broadway, where over the course of the early stories we are introduced to the men and women who make up Mr. Tutt's professional family. Most frequently encountered is Samuel Tutt, the short and paunchy junior partner, who is no relation to Ephraim but, as we learn in "The Human Element," wanted to work with him because "I feel that with you I should be associated with a good name." (Tutt and Mr Tutt, 4.) Next in importance stands Minerva Wiggin, a single woman in her forties who has an LL.B. but, rather than maintaining her own practice, functions as the firm's chief clerk and at times as Mr. Tatt's conscience.14 Of equal value in another way is Bonright "Bonnie" Doon, Train's version of a streetwise tough guy with heart of gold, who serves as in-house investigator and as the firm's "runner," haunting the courthouse and the Tombs on the lookout for clients he can steer to his employers. The remainder of the office force consists of Willie Toothaker, an orphan boy unofficially adopted by Mr. Tutt and kept around to perform odd chores;15 Ezra Scraggs, an alcohol-soaked old scrivener who performs his Bartleby tasks in a wire cage in the outer office;16 and Miss Sondheim, the sexy but seldom seen stenographer. The atmosphere within this privileged space is harmonious, tolerant, mutually supportive, with work coming to a halt every afternoon at five when Miss Wiggin brews tea, Mr. Tutt enjoys a stogy and a bottle of malt extract, and we are treated to a lively discussion of legal history or philosophy that somehow or other bears on the case at hand. For thousands of Saturday Evening Post devotees the offices of Tutt & Tutt were as real as their own workplaces, and Ephraim's ancient house on West 23rd Street, with its book-musty den and sea-coal fire and horsehair rocker and inexhaustible supply of juristic reflection and (presumably) pre- Prohibition alcohol, was as vivid in countless readers' imaginations as the quarters of the two London bachelors who resided at 221B Baker Street. Those who revisit Mr. Tutt's world today may wish he'd spent less time playing high poohbah to the fraternity known as the Sacred Camels of King Menelik, but the dromedarian antics must have struck Post subscribers of our grandparents' time as funny. In Train's early stories of Mr. Tutt the case confronting Ephraim is usually criminal and the client is a poor man - occasionally Caucasian, more often an ethnic - charged with murder or some other serious offense. But there are vast differences among the tales of this general type. In some, as so often in the real world then and now, the defendant is guilty and without moral justification, so that Mr. Tutt functions much like the first incarnation of Melville Davisson Post's Randolph Mason, an amoral hired gun finding legal loopholes.17 What sets these stories apart from the rest of the series is that they portray everyone and everything within their ken - the legal system and its lackeys, the defendant and his milieu, even Mr. Tutt himself and his col- leagues - with the sort of genial, detached contempt that Train's contemporary H.L. Mencken was lavishing at the same time on boobus Americanus and his institutions. The more cynical about the system a reader may be today, the more he or she will tend to admire the Mr. Tutt stories of this sort. It's unfortunate that the cynicism of these tales shades over at times into a political- ly incorrect depiction of certain ethnic groups that casts doubt on the stories' revivability in our so sensitive era. What unifies the other early Mr. Tutt stories of this general type is that Train mutates from a Menckenesque stance to one reminiscent of Lincoln Steffens or Upton Sinclair,18 portraying the system as an obscene monster thirsting for the blood of the oppressed and Mr. Tutt and associates as the righteous remnant, battling law to achieve justice. Within this framework of social protest and class war we need to distinguish (although Train doesn't) between stories where the defendant is an innocent victim of mistake or malice on the part of witnesses or the system or both and stories where he is legally guilty but acted with moral justification. Then within the latter grouping we must distinguish further (although our subjective values are bound to affect the process) between those where the moral justification Train offers seems plausi- ble and those where it falls flat. Anyone who expects a neat organic development of the series from one of these types of story to another is simply not in the world Train made. The order in which the Post ran the tales, which presumably reflects the order of their composition, shows stories of all these varieties cheek by jowl with one another, with stories of the same general type that straddle or defy my dis- tinctions, and with stories not of this general type at all. Yet throughout these early tales, regardless of the role he plays - defender of the underdog, gun for hire, flimflam artist, mender of romantic destinies, amateur detective or a blend of two or more of these parts - Mr. Tutt's philosophy, rhetoric and tactics remain consistent. The result is that the stories at one end of the spectrum paint the entire legal system and its functionaries as vicious, hypocritical and absurd, while the stories at the other end reassure us, much like the later and more conventional Mr. Tutt tales to be covered in due course, that the good lawyer can use the resources of the law itself to bring about justice. IV. Train devoted most of Chapters XVI and XVIII of My Day in Court to his prosecutions of Italian defendants. He claimed that during his time in the District Attorney's office foreign-born Italians constituted up to 45 per cent of those convicted of homicide (164) and described "the incredible ignorance and superstition existing among the Neapolitans, Calabrians, and Sicilians who lived, often ten to twelve in a room, in the tenements of Elizabeth and Mulberry Streets in Manhattan., or Union Street in Brooklyn." (164) In later years as a defense lawyer he represented "an Italian laborer [who] had shot and killed two police officers .... in pursuit of him" (254) and, arguing that his client had merely used reasonable force against the excessive force of his uniformed victims, persuaded the prosecution to accept a plea to manslaughter in the second degree. (255) It comes as no surprise to learn that the client in the first Mr. Tutt story is Italian. "The Human Element" (#1; 7 June 1919, as "The Trial of Angelo Seraphino"; Tutt and Mr Tutt) not only introduces Ephraim and his menage but also provides the paradigm of the early tales in the series where the immigrant defendant is legally guilty, morally justified (in Train's view any- way), and persecuted by a vindictive judge, a corrupt prosecutor and the system in general as cruelly as was Jean Valjean in Les Miserables. Train, who cared neither to write nor read detective fiction,19 leaves no doubt as to the facts in the case. Angelo Serafino, who "makes an honest living by blacking shoes near the entrance to the Brooklyn Bridge" (8), walked one day into the barbershop of Tomasso Crocedoro and "put a bullet through his head." (9) Angelo's wife Rosalina had been engaged to Tomasso, who had jilted her and then after her marriage "seized every opportunity which presented itself to twit Angelo about the matter." (8) As Angelo himself bursts out in court at the close of his trial: "I killa that man! He maka small of my wife! He no good! He bad egg! I killa him once - I killa him again!" (38) Train might easily have given Angelo stronger motivation, say by having him claim that Tomasso raped or attempted to rape his wife, but seems to feel that what he's provided is enough. Assigned as defense counsel by the sadistic Judge Babson, who "hates Italians" (9), and with the ruthless sleazeball "Bloodhound" O'Brien appearing for the prosecu- tion, Mr. Tutt knows that he's been set up for a fall by a "precious pair of crooks, who for their own petty and selfish ends played fast and loose with liberty, life and death." (17-18) That he wins a Not Guilty verdict in the teeth of the facts and judicial hostility is due to no legal skill on Mr. Tutt's part but purely to the whim of chance. Unable to sleep the night before the case went to the jury, he had stepped into St. Patrick's Cathedral very early that morning and fallen asleep in a pew where he happened to have been seen by the jury's foreman. "At first we couldn't see that there was much to be said for your side of the case, Mr. Tutt; but when Oi stepped into the cathedral on me way down to court this morning and spied you prayin' there for guidance I knew you wouldn't be defendin' him unless he was innocent, and so we decided to give him the benefit of the doubt." (42) This last scene replicates the anecdote from the St. Louis paper that George Horace Lorimer had suggested to Train as the germ of his first Mr. Tutt story.20 The rest comes from Train's intimate knowledge of criminal prosecutions in early twentieth-century New York, and of course from his vivid imagination. "The Hepplewhite Tramp" (#4; 16 Aug 1919, as "In Re: Sweet Land of Liberty"; Tutt and Mr Tutt) pits Train's radical social consciousness against his pervasive cynicism and his protagonist against an obscenely rich Manhattanite, drawn not from life as Train with his background might easily have done but rather as a cartoonish caricature, the first of many such in the series. Bibby, butler to the elegant Mr. John De Puyster Hepplewhite, is showing his master's equally elegant houseguest Mrs. De Lancey Witherspoon to the bedroom assigned to her in Hepplewhite's Fifth Avenue mansion when they're shocked out of their wits to find lying between the pink silk sheets a scruffy and foul- smelling tramp. Michael Casey, who claims that he found the front door of the mansion slightly ajar and was just "snooping round looking for something to eat,' (247) is promptly arrested and charged with breaking and entering, burgla- ry and other offenses set forth in the legalese gobbledygook of indictment clerk Caput Magnus.21 Next we see the two Tutts engage in the first of the long jurisprudential dialogues that enliven several early tales in the series. "The fellow who steals a razor or a few dollars," Ephraim maintains, "is regarded as a mean thief, but if he loots a trust company or takes a million he is a finan- cier. The criminal law .... is administered for the purpose of protecting the strong from the weak, the successful from the unsuccessful, the rich from the poor . . . ." (244) This is when Bonnie Doon, just back from the Tombs, offers them the tramp case, which Mr. Tutt seizes upon as the perfect illustration of his point. "If John De Puyster Hepplewhite fell asleep in somebody's vestibule the policeman on post would send him home in a cab; but if a hungry tramp does the same thing he runs him in. If John De Puyster Hepplewhite should be arrested for some crime they would let him out on bail; while the tramp is imprisoned for weeks awaiting trial, though under the law he is presumed to be innocent. Is he presumed to be innocent? Not much! .... just because this poor man - hungry, thirsty and weary - happened to select a bed belon- ging to John De Puyster Hepplewhite to lie on he is thrown into prison, indicted by a grand jury, and tried for felony! Ye gods! 'Sweet land of liber- ty!"' (250) Mr. Tutt subpoenas Hepplewhite as a defense witness, brings a $100,000 civil suit against him for false imprisonment, all but reduces the poor plutocrat to jelly on the stand and delivers a fire-breathing summation, but in one of the few genuine surprise twists in a Train story, the tramp is convicted anyway. "Your argument was fine - grand - " confides Juror Number Six, "but nobody could ever make us believe that your client went into that house for any purpose except to steal whatever he could lay his hands on . . . ." (271) Casey then admits to the court that the jury was right: he's a professional burglar who, on hearing the butler and Mrs. Witherspoon coming into the bedroom, "dove for the slats and played I was asleep." (271) In this duel bet- ween the Mencken and Upton Sinclair components of the series, Mencken wins hands down. Even more cynical is "The Dog Andrew" (#7; 15 Nov 1919; Tutt and Mr Tutt), which was based on an assault case Train prosecuted early in his career. "I think," he tells us in My Day in Court, "that I am one of the few attorneys who has actually ever brought to trial a defendant charged with using his dog 'as a dangerous weapon.'" (57-58) The fictional version opens with an account of the stupid feud between the Appleboys and the Tunnygates, two couples with adjacent summer cottages on the shores of Long Island Sound. Train carefully arranges the story so that we can't tell these absurd fat men apart, nor their equally fat and stupid wives either. (I had to teach myself to form a mental picture of Oliver Hardy when I saw one name in the text and of W.C. Fields when I saw the other.) The feud begins with a boundary dispute. Herman Tannygate, hectored by his obese bride, starts taking a shortcut to the beach by forcing his way through the hedge that separates his and the Appleboys' property. Bashemath Appleboy borrows the vicious Andrew from her aunt upstate, her husband Enoch posts "BEWARE OF THE DOG" and "NO TRESPASSING" signs, and when next Herman breaches the hedge, chunks of his trousers and rear end wind up between Andrew's jaws. Tunnygate retaliates by having Appleboy arrested for assault with a dangerous weapon. Mr. Tutt is offering a hilarious discourse on the history of criminal proceedings against animals when in walks Bonnie Doon and hands them Appleboy as a client. Ephraim considers the case beneath his dignity and refuses to try it himself but masterminds the lesser Tatt's defense, which is based on lack of scienter (even though Train has already shown us that Enoch's and Bashemath's scienter is as big as their bellies) and on the old saw that every dog is entitled to one bite. All the parties lie through their teeth at the trial and, as chance would have it, the judge comes from the same upstate town as Bashemath's aunt and knows from firsthand knowledge that Andrew is a vicious beast. When he directs a verdict of not guilty, it's clear that Train means us to see the legal system as a grotesque farce. Flash forward 35 years: When then Vice-President Richard M. Nixon was asked to select a favorite lawyer story for an anthology, "The Dog Andrew" is what he chose, calling Train "my favorite author" and this tale "[o]ne of his best . . . ."22 To my knowledge none of Nixon's legion of biographers has mentioned the point. The dog bite trial is a paragon of decorum next to "Mock Hen and Mock Turtle" (#8; 29 Nov 1919, as "Ways That Are Dark"; Tutt and Mr Tutt), which in large part comes from two murder cases Train tried - one for the prosecution, the other for the defense - and discussed in his memoirs.23 The story opens with a brief introduction to New York's Chinatown. "No one better than the Chink himself realizes the commercial value of the taboo, the bizarre and the unclean .... [T]he Chinaman always gives his public exactly what it wants." (43) The Asian enclave is in the middle of an 80-year-old war between the Hip Leong and On Gee tongs, "a feud imposing a sacred obligation rooted in blood, honor and religion upon every member, who rather than fail to carry it out would have knotted a yellow silken cord under his left ear and swung himself gently off a table into eternal sleep." (47) Mock Hen, who has a white wife and professes to be a "Christian Chinaman .... purely for business reasons" (54), is one of four Hip Leongs assigned to kill rival tong member Quong Lee. Unluckier than his com- rades, Mock is recognized fleeing from the murder scene by a cop and other witnesses. Despite his attempt to create a detective-story perfect alibi for himself at the Hudson House social settlement he frequents when passing as a Christian, he's arrested and charged with murder. At a mind-boggling fee, the Hip Leong legal committee retains Mr. Tatt for the defense. Ephraim, we are told, "had hardly seen a dozen Chinamen in his life - outside of a laundry." (60-61) But he recognizes "what the law did not, namely that a systern devised for the trial and punishment of Occidentals is totally inadequate to cope with the Oriental . . . .- (60) The courtroom scenes that prove his point are at once reminiscent of Alice in Wonderland and prophetic of Catch-22: well over forty days of trial time, an army of perjured Chinese witnesses for both prosecution and defense, an interpreter provided by each tong and an umpire interpreter to resolve the endless wrangles between his colleagues, the beheading of a white rooster in the courthouse base- ment to solemnize the Asians' testimony!24 Only when the white woman from Hudson House takes the stand and innocently confirms Mock's false alibi is "Blood-hound" O'Brien forced to ask the court for a directed verdict of acquittal. Following a gargantuan banquet in Mr. Tutt's honor - as if he had anything to do with this farce except to sit there - Mock Hen is gunned down by On Get assassins on a Chinatown street. As the cop on the beat whispers to Mr. Tutt: "[W]hy in hell couldn't they have done it three months ago?" (88) With its blend of pervasive disgust, Theater-of-the-Absurd courtroom hijinks, a jurisprudential thesis too radical even for Critical Race buffs and language that nowadays would get Train prosecuted under every Hate Speech code in the country, this story is by all odds law fiction's counterpart to The Birth of a Nation. Judging from his remarks in My Day in Court (111, 160), Train ap- parently developed special antipathies to New York's Chinese and Syrian populations as a result of courtroom encounters; and the treatment he gave the former group in "Mock Hen and Mock Turtle" he metes out to the latter in "The Kid and the Camel" (#14; 3 April 1920; By Advice of Counsel). The beast of the title plays no part in the story except as a clumsy device to involve Mr. Tutt in a murder stemming from the ongoing religious war between two Maronite sects transplanted to lower Manhattan. Coney Island concessionaire Kasheed Hassoun, charged with the murder of Sardi Babu, is prosecuted by William Montague Pepperill, a naive young Boston Brahmin who seems to be Train's sardonic self-portrait, and defended of course by Mr. Tutt. Ephraim again argues that the American legal system is incompetent to treat unas- similated alien populations justly and predicts to his tyro adversary exactly how the trial will proceed. "The defense will produce many witnesses - probably as many as the prosecution. Both sides will tell their stories in a language unintelligible to the jury, who must try to ascertain the true inwardness of the situation through an interpreter. They will realize that they are not getting the real truth - I mean the Syrian truth. As decent-minded men they won't dare to send a fellow to the chair, whose defense they cannot hear and whose motives they do not either know or understand. They will feel, as I do and perhaps you do, that the only persons to do justice among Syrians are Syrians." (69) Pepperill refuses Ephraim's offer to plead to Man One (as we've all learned to call it from watching Law & Order), and a furious Mr. Tutt vows to make a fool of him in court. The trial with its dozens of perjurers on both sides is highlighted by the hilarious cross-examination of star prosecution witness Habu Kahoots. The jury deadlocks twice and only then, apparently having never bothered to ask his client what really happened, does Mr. Tutt stumble on the truth. Ephraim's client in "By Advice of Counsel" (#15; 17 April 1920, as "The Passing of Caput Magnus"; By Advice of Counsel) is a flabby dweeb named Theophilus Higgleby, who is charged with bigamy and cheerfully admits the fact: while already married to one Tomascene Startup in Chicago, he took to wife one Alvina Woodcock in New York. "May I ask why?" inquires Samuel Tutt politely. "Why not?" Higgleby replies. "I'm a traveling man." (145) Caput Magnus, who as usual drafted the indictment, is this time forced by his superiors to try the case himself. Ephraim demolishes the prosecution's law- jargon wonk by what Train's reminiscences describe as an ancient defense,25 establishing that Higgleby is not a bigamist but a trigamist. Since the in- dictment alleges the defendant was lawfully married to X at the time he married Y, proof of an even earlier marriage to W compels the court to direct an acquittal. "Your client seems to have loved not wisely but too well," remarks the judge to Mr. Tutt good-naturedly (180). If Ephraim in that tale seemed a clone of Melville Davisson Post's first version of Randolph Mason, he resumes muckraking crusader garb in "The Shyster" (#16; 7 Aug 1920; By Advice of Counsel). As an Assistant District Attorney, Train encountered a number of criminal defense lawyers whose practice was to bilk clients out of huge fees by delaying their trials again and again and keeping them locked up in the Tombs indefinitely. Most of his plot comes from one such case.26 A Jewish teenager with the not very Jewish name of Tony Mathusek is wrongly accused of hurling a brick through the window of Froelich's butcher shop. Delany, the cop who arrested him, is a brutal and corrupt thug in league with Raphael B. Hogan, the fat and elegant king shyster of the city. Once engaged as defense counsel, Hogan schemes with his runner Joey Simpkins to seek one postponement after another until the attorney fees eat up every cent of Tony's mother's savings. Mr. Tutt wanders into the case almost by accident and, with the aid of a sympathetic judge, ousts Hogan as defense counsel. After exposing Delany on the witness stand as a perjurer, Ephraim sets the stage for the shyster's ultimate disbarment. In "Beyond a Reasonable Doubt" (#17; 11 Sept 1920; By Advice of Counsel) he again represents a legally guilty but morally justified ethnic, this time on the misdemeanor charge of practicing veterinary medicine without a license. Danny Lowry, an Irish immigrant in his seventies, can't read or write and lacks all the legal qualifications for a D.V.M. but has loved animals all his days and lives only to care for them and his teen-age granddaughter Katie. With automobiles having made the horse all but obsolete, New York's licensed vets are frantic to root out unauthorized competition and hire a detective to entrap Danny into taking five dollars for the care of a sick horse, upon doing which the old man is dragged off to a police station. Katie enlists Mr. Tutt for the defense but legally Ephraim has none and must bet on the moral sense of juries and the obscene absurdity of the situation. His fury explodes when the agent provocateur freely admits on the stand that he'd told Danny he was a physician. "It's your business to pretend you're a doctor when you're not, and you walk the streets a free man; and you want to send my client to Sing Sing for the same offense!" (292) Mr. Tutt eavesdrops on the jury's deliberations much as Train himself admits he was wont to do as a prosecutor,27 so that we get to overhear the twelve good men and true effectively nullifying the law. "Who shall ever again have the temerity to suggest that the jury system is not the greatest of our institutions?" (311) "The Bloodhound" (#26; 10 June 1922; Tut, Tut! Mr Tutt) pits Ephraim against an adversary familiar to us from "The Human Element": William Francis "Bloodhound" O'Brien , who viewed it as his duty to his God, his country, and himself to convict, by any means at his command, every hapless defendant brought to the bar of justice." (8) From My Day in Court we learn that the character was based on an Assistant D.A. of Train's acquaintance who "justified to some extent the stock portrayal of villainous prosecutors so famil- iar to theatregoers . . . ." (101) But the trick O'Brien uses in this story came from "one of the most famous prosecutors this country has ever known, a lawyer of high repute, [who] once boasted in my hearing of having secured a conviction in a weak case by sending for a copy of Byrnes' Professional Crimi- nals of America, holding it so the jury could read the title, and pretending to be reading from its contents - asking the defendant such questions as 'Didn't you ... blow up the bank at Red Bank, on March 6, 1898?' - there being no such statements in the book. Can I be blamed for never having any respect for the man thereafter?" (104) In Train's fictional version of the incident, Paddy Mooney, on the street again after fourteen months in Sing Sing on a trumped- up charge, blunders into a botched robbery. Both he and Mulligan, the real criminal, are arrested by the corrupt cop Delany, who plants a gun on Paddy before bringing him in to the station house for a beating. O'Brien offers Mulligan a sweetheart deal in return for his testimony against the innocent Paddy. Mr. Tutt is assigned to the defense and demolishes the perjury until all charges against Paddy are dropped except that of carrying the concealed weapon Delany planted on him. This is when the desperate O'Brien resorts to the ploy Train described in My Day in Court. Ephraim then makes his adversary take the stand and be sworn and, to quote Train's memoirs again, asks "whether, when he took the book in his hands and appeared to read from its pages, he had in fact been reading something that was printed there . . . . If he . . . insisted that he had been reading from the book - Mr. Tutt would offer it in evidence, and have him sent up for perjury. If he .... admitted that he had been making the whole thing up - he would be ruined." (104nl) The Blood- hound chooses disgrace over prison and admits the truth. "Now, gentlemen," says Ephraim to the jury, "you may convict my client if you wish." To which the foreman replies: "The hell we will! The fellow we want to convict is O'Brien!" (38) Most of Mr. Tutt's cases over the next several years were on the civil side and the most juristically interesting of them will be discussed in later sections. It's not until "Yaller Dog" (#43; 9 Feb 1929; The Adventures of Ephraim Tutt) that he is again pitted against O'Brien, and even though this case too seems hopeless, at least the judge has a humane streak. Ephraim's client, teen-age Gussie Menken, had known t hat the brutal beat cop Grady was out to beat him up and, seeing Grady coming down the street late one evening, had ducked into Jacob Grossman's unlocked store and living quarters while Gross- man was out mailing a letter. The boy had hidden behind a counter, knocked over some cans of tomatoes and was caught, beaten, and charged by Grady with a huge assortment of offenses including breaking and entering, burglary, grand larceny and assault. The trial scene is preceded by several anecdotes from Train's own experience, later retold as fact in My Day in Court, such as the case of the black defendant by the name of Moses Cohen (62) and the man charged with attempting to steal a ship's anchor (23). During a withering cross-examina- tion Ephraim proves that Grady has been reciting a set speech given him to memorize by O'Brien. But what precipitates the jury's acquittal of Gussie is Mr. Tutt's arranging for a mangy yellow dog to be let loose in the courtroom at just the psychological moment so that the compassionate ones among the twelve good men and true will see the analogy between the dog and Ephraim's hapless young client. "Mr. Tutt Plays It Both Ways" (#49; 13 May 1933; Tutt for Tutt) is a masterpiece of legal cynicism, centering on a legal ploy so audacious that we'd write Ephraim off as a disgusting shyster if Train hadn't assured us early on that the client for whom the gimmick is pulled was innocent. Prohibition is still in force when young gas station attendant Tony Torsielli falls in lave with Rosy, the 18-year-old daughter of "Macaroni Mike" Angelo. Like other local restaurateurs, Mike is making regular payoffs to federal revenue agent Shay in return for permission to sell the illegal liquor he buys from bootlegger Joe Cavorti. When Tony learns too much about this situation, Cavorti and Shay plot to lure the young man to Fort Morris, site of a long abandoned federal military post, and kill him. The plot gets botched and Cavorti winds up killing Shay, with Tony caught on the spot and charged in federal court with the agent's murder. Ephraim is assigned as defense counsel but Samuel bets him $500 he can't win this one: dearly the dumbest wager in the Train canon. First Mr. Tutt argues before the federal judge that the United States can't try Tony because jurisdiction over Fort Morris automatically reverted to the state of New York when the post was abandoned. Then when his client is indicted and tried by the state, Ephraim contends that New York has no jurisdiction because Fort Morris remains federal property and its military function is merely dormant! Train again called on his by now ancient experience in the District Attorney's office in a few other late stories like "Mr. Tutt, Take the Stand!" (#56; 13 July 1935) and "Life in the Old Dog Yet" (#59; 2 May 1936), both collected in Mr Tutt Takes the Stand, and yet again in "Jefferson Was Right" (#67; 25 Sept 1937, as "Mr. Tutt and Mr. Jefferson"; Old Man Tutt), one of the strongest tales from the last decade of the series, with Ephraim defending another proletarian innocent against the sadistic Judge Babson and the vicious prosecutor whose nickname and surname have unaccountably changed to "Bulldog" O'Brion. Newspaper delivery truck driver Vance Halloran, a saintly sort who sponsors outings for the slum newsboys on his route, is charged with the murder of Michael Kelly, a fellow driver with whom he'd quarreled. Halloran claims that he happened to be walking in the same block with Kelly when the shot that killed his enemy was fired from an alley - the same alley where a cop had found both Halloran and the murder gun a few minutes later. Assigned to this all but hopeless case and forced to go to trial without adequate preparation time against a conviction-crazy prosecutor determined not to let the jury hear the only fact in Halloran's favor - that at the time of the murder he was on his way home to celebrate his first wedding anniversary - Ephraim stands on principle, engages in fierce oral duels with both O'Brion and the judge, compares the proceeding to a Nazi court and comes close to being jailed for contempt, all with the hope that the jury will become outraged, follow Jefferson's dictum that "rebellion to tyrants is obedience to God" (27), and acquit Halloran in protest. Less than five years before his death, in "His Honor, The Judge" (#77; 29 March 1941; Mr Tutt Comes Home), Train revived the original format of the series one last time, and proved that it still held much of its early power. V. Throughout the twenty-six years of the Mr. Tutt series Train would every so often cast his hero in nonforensic roles: as a righteous trickster out- foxing a scoundrel the law can't touch,28 as a benevolent uncle who brings or keeps a nice young man and woman together,29 as a fisherman,30 once in a blue moon as an amateur detective.31 Ephraim's exploits of these sorts run the gamut from satisfactory to abysmal but have little or no legal component and therefore get short shrift here. The remaining stories whose juristic themes deserve detailed discussion stem from Train's years as a general practitioner when, having left the District Attorney's Office, he was pleased to discover that law's civil side offered as much raw material for fiction as the criminal. Over time he became increasingly dependent on civil subjects, in particular the law of wills and estates, and his stories in this vein present in retrospect a clear line of evolution that culminates in what all too soon became the Mr. Tutt formula. What these tales uniformly stand against is a jurisprudential view to which one of the greatest American judges gave classical expression five years before Train launched his best known series. To enforce one's rights when they are violated is never a legalFor the rest of the Mr. Tutt cycle and of Train's life, this in a nutshell is the philosophy of the enemy; an enemy variously conceived but ultimately taking the form of modern avatars of Shylock.33 The theme is first sounded in the magnificent "Hocus-Pocus" (#10; 3 Jan 1920; Tut, Tut! Mr Tutt), which centers on the interaction between wills law and evidence law and opens with an apt quotation from Train's friend Dean John H. Wigmore, seemingly deriding much of the latter subject as a "system which decides controversies by mumbling magic formulas before a fetich."34 Shortly before her death, wealthy widow Caroline Grover had had Mr. Tutt draw her will, cutting off her despicable brothers and leaving virtually everyth- ing to her young ward Lucy Aymar. The will, drafted pursuant to the client's detailed written memorandum of instructions, had been duly executed - the witnesses being three women friends of Mrs. Grover, although she shared its contents with only one of them - and returned to the offices of Tutt & Tutt for safekeeping. But after Mrs. Graver's death no one in the office can find the will and upon learning that it was somehow mislaid, her brothers sue for a declaratory judgment that they take the estate by intestate succession. Under Section 1865 of New York's then Code of Civil Procedure the establishment of a lost will required, among other things, that its provisions be "clearly and distinctly proved by at least two credible witnesses, a current copy or draft being equivalent to one witness.35 The friend to whom Mrs. Grover read her will counts of course as one witness but the memorandum of instructions, which substantively meets the criteria for a "current copy or draft," is ap- parently inadmissible under Section 829 of the Code as a confidential com- munication between lawyer and client.36 A dialogue between Mr. Tutt and Lucy Aymar introduces a theme Train will revisit in several stories to come: rules of law vs. codes of honor. Lucy: "But no honest person would invoke any suchThe trial scene that ensues is one of Train's finest, with the rigorous Justice Pettingill interpreting the statutes inflexibly and ruling against each of Mr. Tutt's ingenious arguments for the memorandum's admissibility. After court adjourns, Train offers a Socratic colloquy in Mr. Tutt's office. Ephraim: ". . . Here we have a crowd of reputableSamuel's suggestion is that Section 829 would no longer be a problem if Willie Toothaker should sneak into the Grover house and plant the memorandum of instructions in the dead woman's desk. This is precisely how justice and testamentary intent are made to triumph at the story's climax. As Train comments in an aside to the reader: "It is the business of the recording angel and not mine - of which I am very glad - to determine just haw outrageous Mr. Tutt's conduct was and what should be done with him 'in the hereafter." (148) In Ephraim's very next published exploit, "Contempt of Court" (#11; 31 Jan 1920; By Advice of Counsel), which was apparently written before "Hocus- Pocus" but appeared in the Post three weeks later, a wealthy and socially conscious woman chooses to be jailed rather than reveal a legally unprotected confession from a justified murderer. Clearly Train did not think men alone are capable of honor. The comic villain in "You're Another!" (#18; 2 Oct 1920; By Advice of Counsel) is Edna Pumpelly, a fat ludicrous nouveau riche from Athens, Ohio, aboil with frustration at her failure to command the respect of New York's social elite. Snubbed by her genuinely patrician next-door neighbor Mrs. Rutherford Ellis, Edna conscripts her husband J. Pierpont Pumpelly's attorneys into devising a scheme for revenge. After an altercation on the street with the Ellis chauffeur, she waddles into City Magistrate's Court and swears out a summons against Mrs. Wells "for violation of Section Two, Article Two of the Traffic Regulations providing that a vehicle waiting at the curb shall promptly give way to a vehicle arriving to take up or set down passengers .... (239) Mrs. Wells' friend John De Puyster Hepplewhite, familiar to Train's readers from "The Hepplewhite Tramp," advises her to consult Mr. Tutt. At this point we are treated to another Socratic colloquy among Ephraim, Samuel and Miss Wiggin, probably the longest Train ever wrote. Ephraim: "[U]nfortunately - or perhaps fortunatelyAs might be expected after this interlude~ the rest of the story shows pompous Mrs. Pumpelly pummeled by a barrage of Magistrate's Court summonses for one picayune legal infraction after another: "for violation of Section One, Article Two, of the Police Traffic Regulations in that . . . you permitted a vehicle owned or controlled by you to stop with its left side to the curb on a street other than a one- way tmffic street; and also for violation of Section Seventeen, Article Two of Chapter Twenty-four of the Code of Ordinances of the City of New York in that ... you caused or permitted the same [vehicle] to proceed at a rate of speed greater than four miles an hour in turning corner of intersection highways, to wit, Park Avenue and Seventy-third Street . . . ." (254) "[f]or allowing your drop awnings to extend more than six feet frorn the house line .... []lor failing to affix to the fanlight or door the street number of your house . . . ." (264-265) And on and on ad infiniturn and ad nauseam until Mrs. Pumpelly hollers Uncle and dismisses her complaint against her neighbor. Perhaps Train's finest story on the law-vs.-honor theme is "That Sort of Woman" (#20-, 5 March 1921; By Advice of Counsel). Priggish Harvard- educated playboy Payson Clifford Jr., executor and residuary legatee under his late father's will, finds a letter accompanying the will and asking him to pay $25,000 from the estate "to my very dear friend Sadie Burch, of Hoboken, NJ." (191) The assumption is that the woman was Payson Senior's mistress. Samuel Tutt, from whom the young man seeks advice, acts precisely like the lawyer in service to the "bad man" Holmes posited as the key to understanding legality in "The Path of the Law."37 Since the letter is not a part of the will it isn't legally binding, so that Payson Junior is perfectly within his rights to ignore it and keep the $25,000 for himself. Samuel: ". . . . As executor you're absolutely obligedWhen Ephraim hears of this he invites young Payson to his home on West 23rd Street, gets him joyously drunk on old burgundy and cognac, and prevails on him to spurn his legal rights, follow the gentleman's code of honor and give the woman the money. Thanks to a standard Saturday Evening Post plot twist that the story would have been stronger without, Payson gets to keep the cash and his honor too. If ever Mr. Tatt plays the shyster par excellence it's in "Nine Points of the Law" (#30; 26 July 1924, as "Status Quo: Or, Nine Points of the Law"; Page Mr Tutt). His clients in this distasteful episode are the impoverished widow and children of Rupert Talliaferro II, who for the past five years have been living with their pet goat as squatters in a shanty on the side of a 60-foot-tall hill on 236th Street in upper Manhattan. The realty company that owns the lot, and can show clear title stretching back more than a century to the chil- dren's great-grandfather, has engaged Marcus Marcus' construction firm to bulldoze the property and put up a skyscraper. Enter Mr. Tatt, with the claim that the Byzantine verbiage of the grant to the great-grandfather gave him only a life estate, with the result that the entire chain of title after him is a nullity and that the Taliaferro children own not just the lot in issue but roughly half a billion dollars' worth of adjacent realty to boot. Ephraim's tactics are of the sort that have given lawyers the high reputation they enjoy today. He genially insults the Jewish sheriff charged with removing the family. "You have to know Latin to be a lawyer. To be a sheriff you have to know only Yiddish." (35) He camps out on the hilltop with his clients and the goat, refusing to come dawn until Marcus pays a fortune to settle his claim. When the other side goes to court for an eviction order, Mr. Tutt, knowing that Marcus will lose a fortune thanks to a penalty clause in his contract unless the skyscraper is up by a certain day, uses devious tactics to obtain one delay after another. When his friend and fellow Sacred Camel Judge Affenthaler happens to be assigned the case, Ephraim in a private meeting pointedly reminds His Honor: "King Menelik expects every Sacred Camel to do his duty." (57) When Affen- thaler balks at handing the Talliaferros all of New York City north of 110th Street and rules against Mr. Tutt's spurious claim on a Friday afternoon, Ephraim makes a quick trip to Albany and arranges with the governor, a friend and also a Camel, to elevate Affenthaler at once to the Appellate Division but to hold off notifying the judge for a few days so the promotion can be an- nounced to him as a surprise birthday gift. Thus when Affenthaler signs the order of ouster on Monday morning, neither he nor anyone except Mr. Tutt knows that he no longer has jurisdiction. The result is yet another long delay, and the furious Marcus is finally forced to fork over $100,000 to settle the suit. Among the longest, finest and funniest of the entire series is "When Tutt Meets Tutt" (#40; 10 Sept 1927; When Tutt Meets Tutt). Train based this tale on his experience representing the contestants in the litigation over the will of Amos F. Eno,38 which according to My Day in Court "occupied us for years . . . ." (337) and "was largely responsible for my giving up the law. I felt that life was too short for that sort of thing." (338) Samuel Tutt accepts the case Train's firm had taken on in the real world, seeking to overturn on grounds of testamentary incapacity the will of cat-loving Commodore Enoch Lithgow, an apparent suicide who left only $100,000 to each of his ten nieces and nephews and the rest of his $4,000,000 estate to various cultural institutions and a home for homeless cats. If Samuel wins, the firm will receive a 50% contingency fee totaling two million dollars. Unfortunately some of these cultural institutions have already retained Ephraim at a far more modest figure to defend the will. Ephraim: "We can't be on opposite sides of the case at Samuel: "That's different! - Are you dead sure it's il-Holmes' "bad man" couldn't have said it better. To avert the conflict of interest, Samuel resigns from Tutt & Tutt and opens his own firm. "[Y]ou can't expect me to let a million dollars go by without reaching for it!" (235). The trial is a masterpiece worthy of Lewis Carroll: platoons of medical "experts" with professional opinions dictated by their fees, a 96-page hypothetical ques- tion that takes 21/2 hours to read into the record, savage disputes over whether the Commodore was in the habit of bleating like a goat or telling creditors that "the rabbit" would pay them, a butler whose Cockney accent hypnotizes both Samuel and his honor into, talking the same dialect, an anti-cat summation that must rank with the world's daffiest courtroom rhetoric, and a surprise ending when Commodore Lithgow himself erupts into the proceedings, disinherits all the relatives who were trying to break his will, and is held in contempt of court for not being dead. Anyone who can read this magnificent deconstruc- tion of the system and still wants to be a lawyer belongs in the cuckoo's nest Jack Nicholson flew over. Equally wondrous in its raw cynicism is "Mr. Tutt, Father-in-Law" (#48; 25 March 1933; Tutt for Tutt). While visiting another firm on business, Mr. Tutt discovers that impecunious law clerk Garrett Pell has just been fired for the crime of falling in love with Phyllis Kelly, daughter of the firm's most arrogant partner. Ephraim gives the young man a job with Tutt & Tutt and has him take a case Kelly had turned down, representing the relatives of Ezra Buckmeister in a suit to invalidate the late mogul's will, which left his entire estate to the Metropolitan Research Foundation. "The law, my son, is never clear. If it were, we lawyers couldn't make a living .... [A]n attorney should never be too sure that a will cannot be broken somehow .... It's sound legal doctrine that where there's a will there's a way to break it .... [M]ental incompetency .... undue influence, fraud, duress, mistake, void gift, lapsed legacy, fallen arches, cold in the head, contra bonos mores, e pluribus unum, sic semper tyrannis, wind on the tummy - any old thing . . . ." (41-42) Once the objections to probate are filed, Ephraim stalls the case for almost eight months, until the long anticipated death of one of his own clients, multimillionaire Joseph McGregor, whose will left $5,000,000 to the same Metropolitan Research Foundation. He has McGregor's will probated in nothing flat, then moves to bring the Buckmeister case before the surrogate's court, where Pell proves that, due to the recent McGregor bequest, the Foundation will exceed the $20,000,000 in assets permitted to a charitable corporation under sec.15 of New York's General Corporation Law if it's given the Buckmeister bequest. There- fore, Pell argues, Buckmeister's $1,000,000 must be distributed to his relatives as in intestacy. With the $50,000 that constitutes his half share of Tutt & Tutt's 10% contingency fee Pell is able to marry Phyllis Kelly. VI. A person who demands his rights under the law where one with a sense of honor would waive them is not far removed from a person who uses his legal rights to hurt or ruin others. The latter character type is commonplace in the work of Train and many another modern author of law-related fiction and indeed constitutes the twentieth-century version of the demonic figure in English literature's first and richest masterpiece on legal themes, The Merchant of Venice. The core of Shakespeare's play, at least as most readers perceive it,39 is simultaneously juristic and religious. Shylock, being a Jew, is eo ipso a blood- sucking monster whose weapon of choice and polestar is the law. The other major characters, being Christians, are paragons of simple human decency. When Shylock demands the pound of Antonio's flesh to which the law entitles him, Portia invites him to choose decency over legality and waive his right. Being a Jew, Shylock indignantly refuses. Portia in effect replies: If law is what you want, then by God law is what you shall have! As if by magic she then produces another rule of law that trumps Shylock's legal right and leaves him devastated. It took the slaughter of six million to dump the play's religious com- ponent into the garbage heap of history, but all it took for fiction writers concerned with legal themes to decouple and build upon Shakespeare's juristic nucleus was a usable secular substitute for the evil Jew. Such a replacement came to hand with the advent of social Darwinism in the late nineteenth century and, more precisely, with Holmes' superb evocation of "the bad man" in "The Path of the Law." By the time Arthur Train began working with these story elements, other lawyer authors like Melville Davisson Post had been at it for twenty years or more,40 and even some nonlawyer writers who were Train's contemporaries made effective use of the pattern now and then.41 But it was Train who reduced the practice to what he himself called a formula42 and devised more variations on the theme than any of his colleagues.43 The effect of this story framework operates independently of any particular author's subjective intent. Taken as integral texts with a unified vision, both The Merchant of Venice and Shakespeare's other great juristic play Measure for Measure seem to propose that we reject and transcend everything connected with law, that we live without rules, by love and forgiveness alone. Taken in isolation, however, the "courtroom" scene in The Merchant of Venice offers a different perspective, purely secular and radically at odds with the religious thrust of the play as a whole: that a legal system can and will generate justice out of its own resources, at least when the "good lawyer" employs them. Whether Shakespeare himself believed this is both undiscoverable and ir- relevant. Likewise, when the same framework is used by twentieth-century authors like Post or Train, no matter how cynically they may have viewed their legal environment, the effect of their stories is to leave readers with a warm fuzzy feeling about the system. The Merchant of Venice framework is not impossibly rigid but offers a number of variations. What the Shylock figure invokes may be either a broad principle of law or an arcane technicality, and what the Portia figure invokes in reply may be either as well. Train used all four of these basic variants in different tales. What is at once most difficult for the author and most satisfying to the reader is a story where the Portia figure prevails by a legal rule of the same precise type as her adversary's or by turning his rule back on itself. Train pulled off this feat only on rare occasions. The pitfalls inherent in using this framework are both easy to discern and hard to avoid. If Shylock must invoke Rule A and Portia must counter with Rule B, those rules dictate the plot. Where the rule comes from a statute, the author must cram into the storyline every predicate to the statute's ap- plicability; where it stems from a judicial decision, he must devise a plot on all fours with the facts of the case. Either way he has precious little room to be creative. And even if he's skillful enough to leap over this pitfall in individual stories, recycling the framework too often will sooner or later reduce his tales to ritualistic exercises in repetition that leave readers yawning. This is what happened to Train as, during the Thirties and early Forties, he drew from the Shakespearean well over and over again. Train himself succinctly captured part of what tends to go wrong in these formulaic later stories when he remarked in My Day in Court, "The further one gets from personal experience the paler does the blood become." (444) But he compounded this problem by setting all too many of his varia- tions on the Shakespearean theme in the mythical upstate New York hamlet of Pottsville, where every time Mr. Tutt stops off on a fishing vacation he finds some widow or orphan or inoffensive Sacred Camel being cheated under color of law, usually by the villainous local attorney, Squire Hezekiah Mason, or by one of Mason's "bad man" clients. Ephraim invariably trumps his adversary's legal weapon with another and more humane rule of law, but Squire Mason always returns to oppress another helpless innocent and before long, no matter haw often Train compares him to Shylock, the modern reader is bound to conjure up images of Wile E. Coyote. These Pottsville outings are rarely of great juristic interest, but those who would like to sample one may find "The Doodle Bug" (#41; 1 Oct 1927; When Tutt Meets Tutt) more palatable than most. Train's finest adaptations of the juristic core of The Merchant of Venice have nothing to do with Pottsville but rank with his most interesting stories and deserve our attention here. His first effort in this tradition and one of his grandest is "In Witness Whereof" (#22; 7 May 1921; Tut, Tut! Mr Tutt). Years before the story begins, Ephraim had drawn millionaire widower Cabel Baldwin's will leaving every- thing to his daughter Lydia. Now Mr. Tutt receives a visit from fat slimy Alfreda, who had surreptitiously married the old man after serving briefly as his nurse. The new Mrs. Baldwin offers a huge fee if Ephraim will prepare a codicil to her husband's will, leaving generous bequests to several high-powered charities, other large gifts to members of Alfreda's family and the vast bulk of his estate to the lady herself. Mr. Tutt realizes that he's being asked to connive at undue influence but, after making Alfreda state that not she but her husband is the client, he agrees to draft the codicil. At this point Train interposes several pages of legalese attempting to justify Ephraim's decision along servant- of-the-bad-man lines. The scene in Baldwin's bedroom with Alfreda all but physically forcing the enfeebled old man to sign the document is a masterpiece, but the last laugh goes to Mr. Tutt. He manipulates Alfreda into signing the codicil as a witness so that, after Baldwin dies and the will and codicil are offered for probate, it quickly becomes clear that the later document is fatally defective because Alfreda is both witness and legatee. Her only recourse is to renounce the huge bequest in the codicil and rely on the other gifts to her relatives. No sooner has she done so than Ephraim pulls out an argument that invalidates those bequests too and so on and on in a splendid duel between the Portia and Shylock philosophies of law. "The Liberty of the Jail" (#25; 15 April 1922; Tut, Tut! Mr Tutt) shows the Shylock and Portia aspects of the formula integrated into a glorious unity, although in the real-world case he adapted for the plot Train seems to have played the Shylock part.44 Wallace Barrington, a young widower with an aged mother and four small children, is run down and maimed for life by T. Otis Crabb, who was drunk and driving his wealthy wife Lucretia's car on a party with some girlfriends. Mr. Tutt pays the Barrington family's bills while bringing suit. "It isn't exactly ethical for us to pay 'em, but what's a little ethics when an old woman and four children are starving?" (89) He wins a $50,000 verdict against both the Crabbs but then his troubles begin: T. Otis owns no separate property and Lucretia flatly refuses to pay the judgment.45 Ephraim threatens to have T. Otis imprisoned for debt if the money isn't paid.46 The Crabbs' lawyer, Aaron T. Lefkavitsky, devises a cunning countermove based on quirks in New York law. As long as Lucretia gives bond in the amount of the judgment and her husband's boozing-and-wench- ing buddy Algie Fosdick acts as surety, T. Otis is entitled to the "liberties of the jail , which means he is legally in prison but actually enjoys complete freedom of movement throughout New York County. Indeed he can even go beyond the "jail" and spend long weekends living it up in Atlantic City provided that Algie goes with him and that they both return on Monday before Fosdick can legally be served with process in an action on the bond. It's not what he knows but whom he knows that enables Mr. Tutt to trump this ploy. Thanks to having the general superintendent of Penn Station as a poker pal, Ephraim arranges for the Monday train on which T. Otis and Algie are returning to New York to be halted for three minutes in the tunnel under the Hudson at a point where the front end of the train with Algie in it is in New York and the rear cars, to which T. Otis has been lured by the hint of a new sexual conquest, are in New Jersey. This gimmick per- mits Algie to be lawfully served with process in the action to forfeit Lucretia's bond. "Mr. Tutt Is No Gentleman" (#50; 8 July 1933; Tutt for Tutt) fuses the law-honor and Shylock-Portia oppositions into a magnificent tale with a glori- ous flimflam to boot. In the earlier "Mr. Tutt's Revenge" (#42; 1 Sept 1928; The Adventures of Ephraim Tutt), which lacks juristic interest, Ephraim had been invited into the Wanic Club, whose members own a palatial lodge and the exclusive fishing rights on a salmon-rich stretch of the Santapedia River in the fictitious Canadian province of St. Lawrence. As the present story opens, he and his colleagues are basking in this angler's paradise when they are invaded by Judge Philo Utterbach Quelch, a distant relative of the late Bishop Char- teris, who figured in "Mr. Tutt's Revenge," and the successor to the bishop's share in the Wanic Club. For the past two years Quelch has landed a bigger salmon than any other Club member, and if he has the same luck this year he'll be entitled to the Golden Salmon, a trophy created by Bishop Charteris for whichever Wanic member kills the largest fish in the so-called Home Pool for three seasons in a raw. Quelch is an odious toad who has no code of honor and, like Holmes' "bad man," lives solely by the rules of law - and is deter- mined to use his legal knowledge to win the Golden Salmon. On the night of his arrival he engages in a superb juristic dialogue with Ephraim and another club member. Ephraim: "Do you contend that if two men are fishing Warburton: "Don't you think that among sportsmenThe issues raised in this dialogue become concrete as the story proceeds, with Quelch exploiting his knowledge of old common-law rules regarding wild animals (or ferae naturae as he likes to call them) to take all sorts of unfair advantages and maximize his chance of winning the Golden Salmon. At the climax, when Mr. Tutt has apparently hooked a leviathan of a fish that will cost Quelch the trophy, the Honorable Philo hooks the fish foul and, in the last hours before the contest closes, exhausts himself desperately trying to reduce the fish to possession or, as anglers would say, to land him,only to discover that he's been flimflammed by Mr. Tutt and wrestling with a water- logged pair of his own overalls. Ephraim and his colleagues cap the exposure of Quelch's character by turning law back on its abuser as Portia did on Shylock and expelling him from the Wanic Club for conduct unbecoming a gentleman. Unlike any other Train story, "Take the Witness" (#57; 28 Sept 1935; Mr Tutt Takes the Stand) is set entirely in court and all but a few pages deal with Mr. Tutt's savage cross-examination of the tale's Shylock figure, predatory hussy Laura Lavelle, whose business is to maneuver rich young men into written offers of marriage and then sue them for breach of promise when they come to their senses. 47 After ripping the woman to pieces on the witness stand, Ephraim follows Portian precedent by invoking an obscure doctrine of contract law on the effect of mailing an acceptance of an offer but retrieving the letter before it's delivered. Most of Train's later stories in the Merchant of Venice vein are routine but this one is a gem. VII. When Arthur Train died, the world of Mr. Tutt died with him. Al- though the five years before and the fifteen years after his death saw the first great flowering of the softcover reprint, only one of Train's story collections was ever published in paperback.48 Although the same twenty years witnessed the rise and fall of dramatic radio and the rapid expansion of television from an infant to a behemoth insatiably gobbling up story material, only one attempt was ever made to bring Mr. Tutt to either medium.49 When Scribners tried to revive interest in the character with another omnibus volume, Mr Tutt at His Best (1961), the book failed to find an audience. Only a few years ago Professor Philip Stevick wrote that "[n]one of [Train's] fiction, including the Tutt stories, is likely to endure.50 Commen- tators who share Train's legal background tend to think more highly of the series as a whole.51 Even his fondest lawyer admirers, however, must concede that his tendency to longwinded exposition and character stereotypes and his reliance in all too many of the later Mr. Tutt stories on formulaic plot gim- micks make much of his output indigestible today. What I hope to have demonstrated in this essay is that about two dozen exploits of Train's once renowned protagonist remain as rewarding as ever. To my mind there are five factors which, either singly or in various combinations, demarcate what is living in the canon from what is comatose or dead: (1) the vividness with which a story conveys the flavor of criminal practice in immigrant-thronged New York early in this century; (2) the intensity with which a story portrays the criminal justice system as a machine for grinding the wretched of the city, innocent and guilty alike; (3) the cynicism with which a story treats the legal system and all its functionaries as an absurd and grotesque farce; (4) the skill with which a story pits adherence to the aristocrat's code of honor against insistence on one's rights under the law; and (5) the success with which a story reworks the core of The Merchant of Venice, substituting Mr. Tutt for Portia and the Holmesian "bad man" for Shylock in a forensic duel whose outcome suggests that the ministrations of a good lawyer can coax the system to produce justice. The Mr. Tutt stories that still earn high marks under these criteria seem to me well worth resurrecting for a new generation. |
