THE BURDEN OF PROOF.

I.

It had been snowing ever since the Buffalo express left New York, but the Pullman car passengers, comfortably housed, were no more conscious of the weather than they were of each other. When the train stopped unexpectedly at a flag station, the whispering of the snowflakes against the window-panes made itself heard, and the presence of the passengers made itself felt. The car instantly became a room whose occupants discovered one another at the same moment, and sat staring into each other’s faces with all the gloom of fellow-patients in a doctor’s office. The silence was embarrassing and absurd. A nervous passenger coughed to relieve the tension, and felt himself flushing under the concentrated attention of the entire company. A woman leaned forward to speak to her neighbour, but stopped as though conscious of some indecorum. Then everyone sat perfectly quiet, and the slow throb of the engine was the only sound from the frosty world outside.

At last the conductor opened the door, and the passengers gazed at him as if they had never seen his like before. When he stamped the snow off his feet they watched him with a charmed intensity. When he spoke they started perceptibly.

—“Anybody named Glenning in this car?”

—“Yes—here.”

All eyes centred on the speaker, a middle-aged, well-dressed, commonplace man occupying a corner chair.

—“A telegram for you, Sir.”

Mr. Glenning slowly adjusted his glasses, peered at the address on the yellow envelope, took a penknife from his pocket and cut the flap with great deliberation.

The passengers watched his face with the breathless interest of an audience viewing the climax of some mighty drama where every movement of the actors must be noted. But Mr. Glenning read the message without the slightest change of expression.

“If you want to send an answer you can do it. We wait here for a few minutes longer.”

“I’ll tell you in a moment.”

Mr. Glenning took from his vest-pocket a small, red book with indexed margin, opened it about the middle, ran his finger down the edge, stopped toward the foot of the page and said:

“No answer. Any charge? No? Thank you.”

The audience gave vent to its relief in a relaxing stir and rustle. Mr. Glenning picked up his newspaper and began to read. The engine whistled two sharp warnings, the wheels slipped once or twice on the icy rails, the whispering of the snowflakes hushed and the inmates of the flying Pullman once more forgot each other.

When the train reached Albany the last passenger to leave the car picked up the telegram which Mr. Glenning had crumpled and thrown upon the floor. But his curiosity was only partly satisfied by reading:

Mr. John Glenning, Passenger on No. 44. Effervescent Albany.

Had he possessed Mr. Glenning’s code he would not have been much wiser, for the translated message simply read as follows:

The party wanted is in Albany.

II.

Messrs. Constable, Glenning and Hertzog were engaged in the general practice of the law, but Hertzog was the only lawyer in the partnership. The others were merely members of the Bar.

Mr. Constable’s aptitudes lay in the line of drumming up business. He was known, although he did not know it, as the “barker” for the firm. He belonged to eight clubs; he was identified with fourteen charities, among which he counted three chairmanships; he was in the vestry of a prosperous church and on the Visiting Board of two hospitals; sixteen corporations published his name as a director, and the same sixteen acknowledged his firm as Counsel. Mr. Constable was in the public eye.

Mr. Glenning was not in the public eye, but he had its ear, provided public was spelled with a capital P and the right political party was in power. Mr. Glenning had been a member of the firm for twenty years, which proved that the right political party generally was in power. What his functions were no one seemed to know, but unquestionably he was a very busy man. A very serious, earnest believer too in his profession was Mr. Glenning, and impatient of the silly slights and slurs ever ready on the tongues of the outsiders. Thus when an alleged wit said something about “more cases being decided at the trench than at the Bench,” Mr. Glenning, who dined more with the Judges and knew them better than any other man in town, snubbed the speaker and disposed of his remark as “a sneer of the unsuccessful.”

Everybody understood Hertzog’s work. It used to be said that his two best clients were Constable and Glenning, but then people are always saying bitter things for want of better.

Mr. Constable was a florid-faced, white-whiskered, well-dressed little man, bright, quick and full of energy. There were those who considered him pompous, and it is true he regarded himself very seriously. But most people took him at his own estimate. In the outer office his manner was sharp, short and decisive; in the inner office he was silent, impressive and indecisive. That is to say he listened thoughtfully, earnestly, sympathetically, intelligently, comprehendingly—in any and every way that inspires confidence, but no one ever lured him into expressing an off-hand opinion. His decisions were always “decisions reserved.”—“Reserved for Hertzog,” muttered “the unsuccessful.”—But luckily Mr. Constable never heard them, for, like Mr. Glenning, he was intolerant of flippancy in every form. He was also intolerant of details.

If anything went wrong in the office Mr. Constable shook off all responsibility for it. “That is a detail of which I know nothing,” was his ever present phrase in time of trouble, and this, accompanied by a wave of his hands, cleared the atmosphere in his vicinity. A detail in Mr. Constable’s meaning was anything uncomfortable to remember. “That is a detail with which I do not charge my memory,” he would say, and he was never contradicted.

There was no firm in the city more prominent than Constable, Glenning and Hertzog, and none more highly esteemed. Possibly Mr. Constable emphasised this a little too often, but perhaps his insistence impressed some of the very people who pretended to laugh at it. “A firm of our standing,” was another of his pet phrases, and on this he rang the changes with such genuine pride that those who did not envy readily forgave him the touch of conceit.

Still there were those who would not have grieved had the firm lost its standing in the Hydroid Fibre case. But the mud there only reached Horton, the office Notary Public, and he went to Sing Sing for his cleansing.

It was at the annual meeting of the great Hydroid Fibre Co., during a bitter fight for control, that one of the stockholders repudiated a proxy bearing his name and carrying votes in favour of Mr. Constable. The signature was an evident forgery, and ugly things were said. Horton, the Notary Public who had witnessed the paper and taken the signer’s “acknowledgment,” was sent for, but could give no adequate explanation.

Mr. Constable, though dumfounded at the disclosure, acted with commendable promptness. He instantly ordered the arrest of Horton and silenced accusation by placing himself in the hands of his counsel, Mr. Hertzog, and demanding an investigation. This inquiry clearly demonstrated that Mr. Constable controlled more votes than were necessary without the disputed shares. Horton swore that the bogus stockholder had been properly identified, and claimed that he had been artfully imposed upon, but of this there was absolutely no proof. Not a trace of the swindler could be found.

But the firm did not rest satisfied with this vindication. A clerk in the office had proved untrustworthy, and of him it was determined to make an example.

The District Attorney’s office was not a little proud of the short work it made of Horton’s case, and Messrs. Constable, Glenning & Hertzog, each in his own way, complimented the officials on having promptly closed what threatened to be quite a scandal, involving the fair name of the firm.

But Horton’s case would not stay closed, and it was that which was “effervescing.”

Horton’s counsel, Barton Mackenzie, was one of those irrepressible persons who answer defeat with defiance, and gather courage with every fresh discouragement. But Mackenzie built up a record of disaster in Horton’s case which surpassed anything he had ever experienced before. He was defeated before the Police Magistrate and Horton was held for the Grand Jury, which promptly indicted him on half a dozen different charges. At the trial the presiding Justice ruled steadily against him, and the verdict of the jury adjudged his client guilty. Another judge refused a “certificate of reasonable doubt,” and Horton went to Sing Sing with his case still on appeal. Eight weeks slipped by and then the Appellate Division affirmed the conviction. Three months later Mackenzie argued his client’s cause before the Court of Appeals in Albany, but Horton had served nearly six months of his sentence before that tribunal decided he had been legally convicted. This brought Mackenzie to a stand-still for a while, though Hertzog thought he recognised his hand in the subsequent badgering of Mr. Constable and the Hydroid Fibre Co.

One of those insignificant five-share stockholders, the pest of every corporation, began to worry the company with ceaseless questions, demanding every possible privilege accorded by the statutes. Who he was, or how he got his shares, was a detail of which Mr. Constable regretfully admitted “he knew nothing,” and Glenning, exploring every underground passage known to politics, could not run the thing to earth.

This irrepressible shareholder examined the list of stockholders, obtained statements of the treasurer, called for papers and particulars, and made a general nuisance of himself. His specialty, however, was interviewing President Constable. Hardly a week passed without his calling on this official.

“Here’s that five-share man again,” Mr. Constable would say, slipping into Mr. Hertzog’s private room. “Shall I see him?”

“Of course—see him.”

“You will—er—drop in?”

“No—confound it! You’ve seen him with me often enough. What have you got to worry about?”

“Nothing. Nothing, of course—but——”

“Well, see him!”

Then Mr. Constable gaining confidence from his Hebrew partner’s shrewd face would answer decisively:

“Very well, I will see him.”

But in his own private office the President would be apt to run his fingers along the inside of his collar, as though it choked him, muttering, “Damn this business!” before he pushed his bell and ordered in his visitor.

Mr. Constable was subjected to another constant annoyance. Several of the daily papers invariably coupled his name with some reference to the Horton case. A paragraph announcing his election to a trusteeship would identify him as “the President of the Hydroid Fibre Co., who recently had a most unfortunate experience with a Notary Public now serving sentence in Sing Sing.” Or, if his name appeared in some list, the paragrapher would add: “Mr. Constable, it will be remembered, disposed of quite a serious charge in the Hydroid Fibre matter, some of the parties now being in Sing Sing.”

It was incessant, intolerable, and intangible.

But one evening, in an after-dinner chat, Mr. Glenning had a short, whispered conference about the matter with a city official, and the city official dropped a hint next day to his advertising agent which must have reached the city editors, for the “squibbing” stopped. However, when Mr. Constable resigned from the Presidency of the Hydroid Fibre Co., the paragraphers took occasion to revive the whole story.

Then, as though tired of being in the public eye, Mr. Constable began to resign his trusteeships one after another, until his partners took alarm and vigorously protested.

“I’m not well,” he answered, “and I don’t want so much responsibility.”

“But what about the business?” suggested Mr. Glenning.

Then Mr. Constable astounded them.

“Let me retire,” he answered wearily.

But Mr. Constable’s partners did not propose to have the business sacrificed in any such way. They would not hear of his retirement, and when he insisted, Mr. Hertzog remarked very pointedly that he did not presume to understand this gentle resignation business, but if there was any little game on hand he proposed to be in it for the next three years at least. About money matters Mr. Hertzog cherished no illusions, and at the word dollar Hester Street instantly reclaimed him.

There was no “little game,” Mr. Constable hastened to assure him. It was simply that he could not do justice to the firm or himself. He was a sick man—a very sick man.

“Then take a vacation. Go into the country and stay as long as you like, but drop this retirement nonsense,” commanded Mr. Hertzog, and the senior partner turned away wearily without another word.

“It’s the reaction after that cussed Horton affair,” Mr. Glenning remarked; “he was snappy enough about that until Mackenzie was finally knocked out, but since then he’s drooped. Reaction, I suppose—don’t you?”

“Yes.”

Mr. Hertzog was seldom more than monosyllabic, but his eyes followed the wilted little figure of his partner with more anxiety than the word implied. Alone in his private room he frowned, muttering to himself:

“Reaction—yes or action.—Costing us thousands of dollars anyway. Confound the little fool!”

III.

Mr. Constable’s physician recommended rest and a complete change of scene. With all the world to choose from, the patient made a peculiar selection for his place of sojourn. It was Sing Sing, on the Hudson. But Mr. Constable strictly complied with the Doctor’s advice in not allowing anyone to know his address.

There is not much to be seen in Sing Sing except the State Prison, but Mr. Constable saw that very thoroughly. For two days he spent all the time allotted to visitors in making himself acquainted with convict life. He was writing a novel, he told the Warden, and wanted local colour. No—he did not know any one in the prison—he was an Englishman, and only on a visit to this country. Would he like to make a tour of the buildings with the Warden? Nothing, he declared, would give him greater pleasure—he was interested in every detail. So, escorted by the Warden, he passed through the clean, well-aired corridors, inspected the orderly kitchens and the huge laundries, viewed the immense workshops filled with convicts toiling in splendid, disciplined silence, watched the men file to their meals, their hands hooked over one another’s shoulders, their heads bent down, eyes upon the ground, bodies close together, and their feet keeping time in the lock-step prescribed by the regulations.

It was all very impressive, he told the Warden—a wonderful triumph of system and discipline. He congratulated the official, and was invited into the private office for a smoke and chat.

Did the Warden suppose there were any innocent men in the cells? Very likely there were some—it was not uncommon for prisoners to have new trials granted them, and occasionally a man would be acquitted on these second trials. Did many of the men return after serving sentence? Yes, a good many. Why? Well, principally, the Warden supposed, because it was hard for an ex-convict to get an honest job after he got out. “Damned near impossible, unless he has mighty good friends,” the official added feelingly.

Was not that a reflection on the system? Well, the Warden wasn’t there to pass on that—the Prison Association had undertaken to handle the question, but he couldn’t see that they’d done much with it.

But the innocent men—the men who were afterwards acquitted—they would be—they were not ex-convicts? No, the Warden guessed they were all right. And the pardoned ones? The Warden smiled.

“I’m not very strong on pardons myself,” he admitted. “I’d about as soon employ an out-and-outer. Too much politics in pardons for me. Moreover, sometimes they’re not appreciated. We had a queer fellow here once who served five years, and was a model prisoner too. Well, when he was discharged someone met him at the station with a pardon from the Governor. ‘You cur,’ he shouted at the man who handed it to him, ‘get pardons for those who need them!’ With that he tore the paper into bits, threw the pieces in the man’s face and gave him a terrible thrashing. We never learned what the trouble was, though the fellow served two more years for the assault. But some of us thought he must have been innocent all the time. However, when he came out again nobody offered him another pardon.”

The next day Mr. Constable visited the prison without the escort of the Warden. In the work-rooms the silence of the workers oppressed him, but it was better than the language of some of the under-keepers which fairly sickened him. He had heard foul-mouthed men hurl epithets and profanity back and forth often enough, but never before had he seen the frightful answers which human beings can make without the utterance of a syllable. Many times that day he saw murder done with the eyes—the foulest, fiercest, most glutting murder of which the human heart is capable. In every regulation he saw manhood debased, individuality destroyed, education neglected, reformation defeated, and glancing from the faces of the convicts to those of the keepers, he could not say which this “splendid system” had most brutalised.

Then Mr. Constable returned to his cheerless room at the hotel and locking himself in, lay down on the sofa, only to offer his body as a pavement for files of close-cropped and shaven men who passed over him with the steady tramp-tramp, tramp-tramp of the lock-step, stamping him into the ground gladly and sternly, gloatingly and viciously—deeper and deeper, until he felt the damp earth upon his face and heard less and less clearly the tread of those marching feet.

Then it ceased altogether and Mr. Constable smiled in his sleep as he dreamed he was dead, only to awake with a shriek when he felt that he was living.

The next morning the Warden met him on the street.

“How’s the local colour getting on?” he asked pleasantly.

“I was working with it all last night.”

The Warden stared silently at the speaker for a moment, frowned slightly and passed on.

“Good God!” he muttered to himself, “if it makes a man look like that to write, I never want to read again.”

Mr. Constable left Sing Sing for Niagara, where he stopped long enough to write a letter in the public writing-room of an hotel. The composition of this missive, however, consumed several hours, for the writer kept glancing apprehensively over his shoulder and when anyone approached the table he covered his paper with the blotter and waited until he was alone again. But when at last the letter was finished he omitted to sign it, which was the more neglectful since no one could possibly have recognised the shaky handwriting as that of the snappy, energetic, confident Mr. Theodore Constable. Even the clerk in the New York Post Office who handled the envelope cursed the writer as he puzzled out the address.

Mr. Constable next visited Detroit presumably for the sole purpose of dictating curious statements to the hotel typewriter. These he mailed to New York with some enclosures, addressing the envelopes in large, childish capitals.

The rest of his vacation was spent in the bedroom of a second class boarding-house in Chicago.

At the end of three weeks he returned to New York looking far worse than when he went away. Mr. Hertzog therefore hesitated to tell him that Horton had moved for another trial on newly-discovered evidence.

But the matter could not be kept secret, for Horton’s counsel had done more than claim he could prove his client’s innocence; he not only produced one or two strikingly significant exhibits received anonymously from Detroit, but also asserted he was daily obtaining clues from unknown friends in other cities which might lead to the discovery of a conspiracy, if not to the conspirators themselves.

Even a careless student of human nature must have observed the marked change which had taken place in Mr. Constable.

The lines that come gradually with age and experience give meaning and character to the face—even the traces of illness are not without a certain dignity. But when care begins to crease the face of self-complacence its effects are distortions, terrible as those which some iron implement of torture would suddenly produce.

Mr. Constable’s florid countenance was without a line until it was wrinkled and furrowed and scarred.

Mr. Hertzog was shocked by the appearance of his partner. Was the man going mad? He had seen such changes foreshadow insanity. But if he was going mad—from what cause? He must make sure.

Mr. Constable sat in the junior partner’s private office reading a copy of the affidavits supporting the latest move in Horton’s long fight, and Mr. Hertzog watched him. He noted that the trembling hands left little spots of perspiration on the pages, he saw the twitching lips every now and then forming words—he counted the rapid throbbing of the arteries in head and neck. All this he had expected and discounted, but he was unprepared for the horrid look of cunning in the man’s eyes, as he glanced up from his reading.

For a few moments neither of the partners spoke. Then Mr. Constable broke the silence.

“You think—you would say these papers were—that they made a strong case?”

Mr. Constable’s eyes were fixed upon his partner in anxious inquiry, like a sick man waiting the decision of a doctor testing the heart or lungs.

“Yes, it’s strong. Too damned strong.”

The answer given slowly and with emphasis was received with a smile such as the face of a dead man might attempt with cracking skin and snapping muscles.

“And the papers—are they—should you say they were well drawn?”

“Yes—that fellow Mackenzie seems to have learned something during these years—damn him! By the way, how long did he get?”

“Who?”

“Horton, of course.”

“Three, I think—yes, it was three years.”

“Then he’s served two years and—let’s see—two years and three months.”

Mr. Hertzog pushed the electric button in his desk. “Get me the Revised Statutes covering Sing Sing regulations,” he said to the boy who answered the summons. The book was brought and Mr. Hertzog began studying its pages, his head resting on his hands and his elbows on the desk. For five minutes—ten minutes, there was silence.

“Don’t let’s take up this thing, Hertzog—I think—I think he’ll win.” Mr. Constable’s voice was almost a whisper.

But Hertzog, engrossed in the volume before him, did not hear. Mr. Constable glanced at the stern Hebraic face, flushed and changed his remark to a question.

“Do you think he’ll win?”

The junior partner started up nervously.

“How the devil can I tell!” he burst out angrily. “What’s the use of sitting there parroting ‘Do-you-think-he-can-win? Do-you-think-he-can-win?’ He’s got a damned good case on the merits. There’s something in the Code that may fix him, but I don’t count on it. Don’t ask such idiotic questions. Of course I think he can win, but I also think he mustn’t. If you want my opinion”—Mr. Hertzog swung himself about and cast a searching glance at the shrivelled, mean little figure crushed into the leather easy-chair beside him. “If you want my real opinion, Constable,” he repeated, “I think we’ve got to win. Haven’t we?”

For a moment Mr. Constable stared silently at his partner. Then shaking his head he mumbled a word or two, stopped, put his hand to his throat, began again, stammered a disjointed sentence and suddenly poured forth a torrent of confused and incoherent words that thickened into a clotted gurgle and freed itself in a sputter swelling to peal upon peal of hideous, shattering, mirthless laughter—laughter which forced the man to his feet and rocked him with its spasms.

Hertzog leaped toward the door and fastened it. The clerks must not hear the horror of this. Then he darted to the window, but by the time he had closed it the laughter had died out, and Constable was quivering upon the floor, the blood gushing from his mouth.

IV.

“O, I know, Nurse, but I won’t excite him—I’ll go a long way toward curing him. You can trust me for that.”

Mr. Hertzog pushed himself into the sick-room and walked toward the bed, waving a telegram in his hand. Mr. Constable smiled feebly at his visitor.

“Now, old man, I’m the doctor to-day. Are you up to taking my prescription in the form of a story?”

The invalid nodded.

“Even if it’s about the—the Horton case?”

Mr. Constable nodded positively.

“Well, you remember, just before you were taken sick, I told you I thought they’d got a pretty good case——”

“Yes, yes.” The whisper was eager, expectant.

—“And the more I examined it the more positive I became that there was no chance for attacking it on the merits——”

The invalid lay back on the pillows and smiled foolishly at the man beside him.

—“So, of course, I advised the District Attorney to adjourn the matter for a week, and he did it. In the meantime I began to see daylight, and I told him to adjourn it again. But Mackenzie either saw the point or suspected something, for he fought like a devil against further delay, and we only got three days. Three days! Good lord—I had to have two weeks. And, to make things worse, yesterday old Judge Masterton was unexpectedly assigned to hold court, and Geddes is the only man in town who can approach Masterton on a delicate matter of this kind. But Geddes wasn’t at home, and for nearly a day we couldn’t get on his trail. Then we learned he was in Buffalo, but we couldn’t find the District Attorney to get his consent to retaining Geddes. My God, we sweated blood, but we couldn’t find him—and every hour was precious. Finally Glenning had to start for Buffalo without the necessary consent. Two hours later I located the District Attorney, got what I wanted, and then learned Geddes had left Buffalo for Albany! Well, it was one chance in a thousand, but I wired Glenning on the express, caught it before it reached Albany—and Geddes is retained! What do you think of that?”

There was no response from the bed, and Hertzog bent forward to see if the patient was asleep, but stopped as the laboured speech of the sick man reached him.

“And Geddes—he will apply for another adjournment?”

“Yes, and win it, too. He’s got Judge Masterton in his pocket, I tell you!”

“I don’t—I’m not sure—I understand.”

“Can’t you see that Horton’s sentence will expire before the motion for new trial can be heard?”

“Yes—but——”

The sick man raised himself on his elbow, and stared at his visitor.

“Well, when a man’s served his sentence, the Court won’t entertain an application for a new trial. So there won’t be any public discussion of Horton’s interesting yarns. See? Pretty good, isn’t it? You’ll have to study law when you get well, Constable. I tell you it pays. Tricks in all trades, you know, and there’s nothing like—— Why, Constable, old man, what’s the matter? Here, Nurse! Nurse! Come and look after your patient. He’s struck me and he’s trying to get out of his bed! You’ve got him?—Yes, of course I’ll go—but I didn’t say anything to excite him. All right, I’m going—but what in the world——”

“Write!” panted the sick man as the door closed, “and for God’s sake write quickly, Nurse. Are you ready? Yes? Now then——

“Barton Mackenzie, “99 Wall Street.

“Another adjournment fatal. Constable dying. Makes full confession. See him at once.

“Wire it, Nurse, wire it, and—let no one know! I thought I had done enough—but I’ll do it—I’ll beat them yet. Help me to live—till—he comes!”