It reached, for one thing, the ears of the five judges of the State Supreme Court and of the Governor of the State.

During the four weeks Cowperwood had been free on a certificate of reasonable doubt both Harper Steger and Dennis Shannon appeared before the judges of the State Supreme Court, and argued pro and con as to the reasonableness of granting a new trial. Through his lawyer, Cowperwood made a learned appeal to the Supreme Court judges, showing how he had been unfairly indicted in the first place, how there was no real substantial evidence on which to base a charge of larceny or anything else. It took Steger two hours and ten minutes to make his argument, and District-Attorney Shannon longer to make his reply, during which the five judges on the bench, men of considerable legal experience but no great financial understanding, listened with rapt attention. Three of them, Judges Smithson, Rainey, and Beckwith, men most amenable to the political feeling of the time and the wishes of the bosses, were little interested in this story of Cowperwood's transaction, particularly since his relations with Butler's daughter and Butler's consequent opposition to him had come to them. They fancied that in a way they were considering the whole matter fairly and impartially; but the manner in which Cowperwood had treated Butler was never out of their minds. Two of them, Judges Marvin and Rafalsky, who were men of larger sympathies and understanding, but of no greater political freedom, did feel that Cowperwood had been badly used thus far, but they did not see what they could do about it. He had put himself in a most unsatisfactory position, politically and socially. They understood and took into consideration his great financial and social losses which Steger described accurately; and one of them, Judge Rafalsky, because of a similar event in his own life in so far as a girl was concerned, was inclined to argue strongly against the conviction of Cowperwood; but, owing to his political connections and obligations, he realized that it would not be wise politically to stand out against what was wanted. Still, when he and Marvin learned that Judges Smithson, Rainey, and Beckwith were inclined to convict Cowperwood without much argument, they decided to hand down a dissenting opinion. The point involved was a very knotty one. Cowperwood might carry it to the Supreme Court of the United States on some fundamental principle of liberty of action. Anyhow, other judges in other courts in Pennsylvania and elsewhere would be inclined to examine the decision in this case, it was so important. The minority decided that it would not do them any harm to hand down a dissenting opinion. The politicians would not mind as long as Cowperwood was convicted--would like it better, in fact. It looked fairer. Besides, Marvin and Rafalsky did not care to be included, if they could help it, with Smithson, Rainey, and Beckwith in a sweeping condemnation of Cowperwood. So all five judges fancied they were considering the whole matter rather fairly and impartially, as men will under such circ.u.mstances. Smithson, speaking for himself and Judges Rainey and Beckwith on the eleventh of February, 1872, said:

"The defendant, Frank A. Cowperwood, asks that the finding of the jury in the lower court (the State of Pennsylvania vs. Frank A. Cowperwood) be reversed and a new trial granted. This court cannot see that any substantial injustice has been done the defendant. [Here followed a rather lengthy resume of the history of the case, in which it was pointed out that the custom and precedent of the treasurer's office, to say nothing of Cowperwood's easy method of doing business with the city treasury, could have nothing to do with his responsibility for failure to observe both the spirit and the letter of the law.] The obtaining of goods under color of legal process [went on Judge Smithson, speaking for the majority] may amount to larceny. In the present case it was the province of the jury to ascertain the felonious intent. They have settled that against the defendant as a question of fact, and the court cannot say that there was not sufficient evidence to sustain the verdict. For what purpose did the defendant get the check? He was upon the eve of failure. He had already hypothecated for his own debts the loan of the city placed in his hands for sale--he had unlawfully obtained five hundred thousand dollars in cash as loans; and it is reasonable to suppose that he could obtain nothing more from the city treasury by any ordinary means. Then it is that he goes there, and, by means of a falsehood implied if not actual, obtains sixty thousand dollars more. The jury has found the intent with which this was done."

It was in these words that Cowperwood's appeal for a new trial was denied by the majority.

For himself and Judge Rafalsky, Judge Marvin, dissenting, wrote:

"It is plain from the evidence in the case that Mr. Cowperwood did not receive the check without authority as agent to do so, and it has not been clearly demonstrated that within his capacity as agent he did not perform or intend to perform the full measure of the obligation which the receipt of this check implied. It was shown in the trial that as a matter of policy it was understood that purchases for the sinking-fund should not be known or understood in the market or by the public in that light, and that Mr. Cowperwood as agent was to have an absolutely free hand in the disposal of his a.s.sets and liabilities so long as the ultimate result was satisfactory. There was no particular time when the loan was to be bought, nor was there any particular amount mentioned at any time to be purchased. Unless the defendant intended at the time he received the check fraudulently to appropriate it he could not be convicted even on the first count. The verdict of the jury does not establish this fact; the evidence does not show conclusively that it could be established; and the same jury, upon three other counts, found the defendant guilty without the semblance of shadow of evidence. How can we say that their conclusions upon the first count are unerring when they so palpably erred on the other counts? It is the opinion of the minority that the verdict of the jury in charging larceny on the first count is not valid, and that that verdict should be set aside and a new trial granted."

Judge Rafalsky, a meditative and yet practical man of Jewish extraction but peculiarly American appearance, felt called upon to write a third opinion which should especially reflect his own cogitation and be a criticism on the majority as well as a slight variation from and addition to the points on which he agreed with Judge Marvin. It was a knotty question, this, of Cowperwood's guilt, and, aside from the political necessity of convicting him, nowhere was it more clearly shown than in these varying opinions of the superior court. Judge Rafalsky held, for instance, that if a crime had been committed at all, it was not that known as larceny, and he went on to add:

"It is impossible, from the evidence, to come to the conclusion either that Cowperwood did not intend shortly to deliver the loan or that Albert Stires, the chief clerk, or the city treasurer did not intend to part not only with the possession, but also and absolutely with the property in the check and the money represented by it. It was testified by Mr. Stires that Mr. Cowperwood said he had bought certificates of city loan to this amount, and it has not been clearly demonstrated that he had not. His non-placement of the same in the sinking-fund must in all fairness, the letter of the law to the contrary notwithstanding, be looked upon and judged in the light of custom. Was it his custom so to do? In my judgment the doctrine now announced by the majority of the court extends the crime of constructive larceny to such limits that any business man who engages in extensive and perfectly legitimate stock transactions may, before he knows it, by a sudden panic in the market or a fire, as in this instance, become a felon. When a principle is a.s.serted which establishes such a precedent, and may lead to such results, it is, to say the least, startling."

While he was notably comforted by the dissenting opinions of the judges in minority, and while he had been schooling himself to expect the worst in this connection and had been arranging his affairs as well as he could in antic.i.p.ation of it, Cowperwood was still bitterly disappointed.

It would be untrue to say that, strong and self-reliant as he normally was, he did not suffer. He was not without sensibilities of the highest order, only they were governed and controlled in him by that cold iron thing, his reason, which never forsook him. There was no further appeal possible save to the United States Supreme Court, as Steger pointed out, and there only on the const.i.tutionality of some phase of the decision and his rights as a citizen, of which the Supreme Court of the United States must take cognizance. This was a tedious and expensive thing to do. It was not exactly obvious at the moment on what point he could make an appeal. It would involve a long delay--perhaps a year and a half, perhaps longer, at the end of which period he might have to serve his prison term anyhow, and pending which he would certainly have to undergo incarceration for a time.

Cowperwood mused speculatively for a few moments after hearing Steger's presentation of the case. Then he said: "Well, it looks as if I have to go to jail or leave the country, and I've decided on jail. I can fight this out right here in Philadelphia in the long run and win. I can get that decision reversed in the Supreme Court, or I can get the Governor to pardon me after a time, I think. I'm not going to run away, and everybody knows I'm not. These people who think they have me down haven't got one corner of me whipped. I'll get out of this thing after a while, and when I do I'll show some of these petty little politicians what it means to put up a real fight. They'll never get a d.a.m.ned dollar out of me now--not a dollar! I did intend to pay that five hundred thousand dollars some time if they had let me go. Now they can whistle!"

He set his teeth and his gray eyes fairly snapped their determination.

"Well, I've done all I can, Frank," pleaded Steger, sympathetically.

"You'll do me the justice to say that I put up the best fight I knew how. I may not know how--you'll have to answer for that--but within my limits I've done the best I can. I can do a few things more to carry this thing on, if you want me to, but I'm going to leave it to you now.

Whatever you say goes."

"Don't talk nonsense at this stage, Harper," replied Cowperwood almost testily. "I know whether I'm satisfied or not, and I'd soon tell you if I wasn't. I think you might as well go on and see if you can find some definite grounds for carrying it to the Supreme Court, but meanwhile I'll begin my sentence. I suppose Payderson will be naming a day to have me brought before him now shortly."

"It depends on how you'd like to have it, Frank. I could get a stay of sentence for a week maybe, or ten days, if it will do you any good.

Shannon won't make any objection to that, I'm sure. There's only one hitch. Jaspers will be around here tomorrow looking for you. It's his duty to take you into custody again, once he's notified that your appeal has been denied. He'll be wanting to lock you up unless you pay him, but we can fix that. If you do want to wait, and want any time off, I suppose he'll arrange to let you out with a deputy; but I'm afraid you'll have to stay there nights. They're pretty strict about that since that Albertson case of a few years ago."

Steger referred to the case of a noted bank cashier who, being let out of the county jail at night in the alleged custody of a deputy, was permitted to escape. There had been emphatic and severe condemnation of the sheriff's office at the time, and since then, repute or no repute, money or no money, convicted criminals were supposed to stay in the county jail at night at least.

Cowperwood meditated this calmly, looking out of the lawyer's window into Second Street. He did not much fear anything that might happen to him in Jaspers's charge since his first taste of that gentleman's hospitality, although he did object to spending nights in the county jail when his general term of imprisonment was being reduced no whit thereby. All that he could do now in connection with his affairs, unless he could have months of freedom, could be as well adjusted from a prison cell as from his Third Street office--not quite, but nearly so. Anyhow, why parley? He was facing a prison term, and he might as well accept it without further ado. He might take a day or two finally to look after his affairs; but beyond that, why bother?

"When, in the ordinary course of events, if you did nothing at all, would I come up for sentence?"

"Oh, Friday or Monday, I fancy," replied Steger. "I don't know what move Shannon is planning to make in this matter. I thought I'd walk around and see him in a little while."

"I think you'd better do that," replied Cowperwood. "Friday or Monday will suit me, either way. I'm really not particular. Better make it Monday if you can. You don't suppose there is any way you can induce Jaspers to keep his hands off until then? He knows I'm perfectly responsible."

"I don't know, Frank, I'm sure; I'll see. I'll go around and talk to him to-night. Perhaps a hundred dollars will make him relax the rigor of his rules that much."

Cowperwood smiled grimly.

"I fancy a hundred dollars would make Jaspers relax a whole lot of rules," he replied, and he got up to go.

Steger arose also. "I'll see both these people, and then I'll call around at your house. You'll be in, will you, after dinner?"

"Yes."

They slipped on their overcoats and went out into the cold February day, Cowperwood back to his Third Street office, Steger to see Shannon and Jaspers.

Chapter XLIX

The business of arranging Cowperwood's sentence for Monday was soon disposed of through Shannon, who had no personal objection to any reasonable delay.

Steger next visited the county jail, close on to five o'clock, when it was already dark. Sheriff Jaspers came lolling out from his private library, where he had been engaged upon the work of cleaning his pipe.

"How are you, Mr. Steger?" he observed, smiling blandly. "How are you?

Glad to see you. Won't you sit down? I suppose you're round here again on that Cowperwood matter. I just received word from the district attorney that he had lost his case."

"That's it, Sheriff," replied Steger, ingratiatingly. "He asked me to step around and see what you wanted him to do in the matter. Judge Payderson has just fixed the sentence time for Monday morning at ten o'clock. I don't suppose you'll be much put out if he doesn't show up here before Monday at eight o'clock, will you, or Sunday night, anyhow?

He's perfectly reliable, as you know." Steger was sounding Jaspers out, politely trying to make the time of Cowperwood's arrival a trivial matter in order to avoid paying the hundred dollars, if possible. But Jaspers was not to be so easily disposed of. His fat face lengthened considerably. How could Steger ask him such a favor and not even suggest the slightest form of remuneration?

"It's ag'in' the law, Mr. Steger, as you know," he began, cautiously and complainingly. "I'd like to accommodate him, everything else being equal, but since that Albertson case three years ago we've had to run this office much more careful, and--"

"Oh, I know, Sheriff," interrupted Steger, blandly, "but this isn't an ordinary case in any way, as you can see for yourself. Mr. Cowperwood is a very important man, and he has a great many things to attend to. Now if it were only a mere matter of seventy-five or a hundred dollars to satisfy some court clerk with, or to pay a fine, it would be easy enough, but--" He paused and looked wisely away, and Mr. Jaspers's face began to relax at once. The law against which it was ordinarily so hard to offend was not now so important. Steger saw that it was needless to introduce any additional arguments.

"It's a very ticklish business, this, Mr. Steger," put in the sheriff, yieldingly, and yet with a slight whimper in his voice. "If anything were to happen, it would cost me my place all right. I don't like to do it under any circ.u.mstances, and I wouldn't, only I happen to know both Mr. Cowperwood and Mr. Stener, and I like 'em both. I don' think they got their rights in this matter, either. I don't mind making an exception in this case if Mr. Cowperwood don't go about too publicly. I wouldn't want any of the men in the district attorney's office to know this. I don't suppose he'll mind if I keep a deputy somewhere near all the time for looks' sake. I have to, you know, really, under the law.

He won't bother him any. Just keep on guard like." Jaspers looked at Mr. Steger very flatly and wisely--almost placatingly under the circ.u.mstances--and Steger nodded.

"Quite right, Sheriff, quite right. You're quite right," and he drew out his purse while the sheriff led the way very cautiously back into his library.

"I'd like to show you the line of law-books I'm fixing up for myself in here, Mr. Steger," he observed, genially, but meanwhile closing his fingers gently on the small roll of ten-dollar bills Steger was handing him. "We have occasional use for books of that kind here, as you see. I thought it a good sort of thing to have them around." He waved one arm comprehensively at the line of State reports, revised statutes, prison regulations, etc., the while he put the money in his pocket and Steger pretended to look.

"A good idea, I think, Sheriff. Very good, indeed. So you think if Mr.

Cowperwood gets around here very early Monday morning, say eight or eight-thirty, that it will be all right?"

"I think so," replied the sheriff, curiously nervous, but agreeable, anxious to please. "I don't think that anything will come up that will make me want him earlier. If it does I'll let you know, and you can produce him. I don't think so, though, Mr. Steger; I think everything will be all right." They were once more in the main hall now. "Glad to have seen you again, Mr. Steger--very glad," he added. "Call again some day."

Waving the sheriff a pleasant farewell, he hurried on his way to Cowperwood's house.

You would not have thought, seeing Cowperwood mount the front steps of his handsome residence in his neat gray suit and well-cut overcoat on his return from his office that evening, that he was thinking that this might be his last night here. His air and walk indicated no weakening of spirit. He entered the hall, where an early lamp was aglow, and encountered "Wash" Sims, an old negro factotum, who was just coming up from the bas.e.m.e.nt, carrying a bucket of coal for one of the fireplaces.

"Mahty cold out, dis evenin', Mistah Coppahwood," said Wash, to whom anything less than sixty degrees was very cold. His one regret was that Philadelphia was not located in North Carolina, from whence he came.

"'Tis sharp, Wash," replied Cowperwood, absentmindedly. He was thinking for the moment of the house and how it had looked, as he came toward it west along Girard Avenue--what the neighbors were thinking of him, too, observing him from time to time out of their windows. It was clear and cold. The lamps in the reception-hall and sitting-room had been lit, for he had permitted no air of funereal gloom to settle down over this place since his troubles had begun. In the far west of the street a last tingling gleam of lavender and violet was showing over the cold white snow of the roadway. The house of gray-green stone, with its lighted windows, and cream-colored lace curtains, had looked especially attractive. He had thought for the moment of the pride he had taken in putting all this here, decorating and ornamenting it, and whether, ever, he could secure it for himself again. "Where is your mistress?" he added to Wash, when he bethought himself.

"In the sitting-room, Mr. Coppahwood, ah think."

Cowperwood ascended the stairs, thinking curiously that Wash would soon be out of a job now, unless Mrs. Cowperwood, out of all the wreck of other things, chose to retain him, which was not likely. He entered the sitting-room, and there sat his wife by the oblong center-table, sewing a hook and eye on one of Lillian, second's, petticoats. She looked up, at his step, with the peculiarly uncertain smile she used these days--indication of her pain, fear, suspicion--and inquired, "Well, what is new with you, Frank?" Her smile was something like a hat or belt or ornament which one puts on or off at will.

"Nothing in particular," he replied, in his offhand way, "except that I understand I have lost that appeal of mine. Steger is coming here in a little while to let me know. I had a note from him, and I fancy it's about that."