"'But,' says the applicant for admission into the Ark, 'let me in, and I'll superintend the navigation. I'll man the wheel, and see that the sails are all right, and we can pick up a deal of floating plunder as we go along.'

"'Can't do it,' says Noah, 'we've got a good steersman and safe navigators on board already.'

"'Well,' says the applicant, 'I'll work my pa.s.sage as a deck hand, asking only a small portion of such spoils as we may pick up. Come, bring us aboard.'

"'Can't do it,' says Noah, 'can't think of such a thing."

"'Then,' said the persevering applicant for a pa.s.sage in the Ark, 'I'll go along for nothing--giving the benefit of my counsel and a.s.sistance free gratis; more than all that, I'll stand the liquor all round.'

"'No use in talking,' says Noah, 'you can't come on board of my craft, on any terms. You'd corrupt my people, and set them by the ears in a week. You can't have a berth on any conditions. Good-bye!'

"'Then go to thunder with your old Ark,' indignantly responded the occupant of the rock, 'I don't believe there's going to be much of a shower, after all.'

"In a day or two, Noah drifted that way again. The mountain peak had disappeared beneath the waters, and the occupants were all gone." "I give up my claim," said I, "Doctor, in consideration of your anecdote.

Take the glory of killing the bear. I see you're not disposed to give me a place in your Ark. So toss up the dollar."

The dollar was tossed up, and Smith won the glory.

CHAPTER XXI.

THE DOCTOR AND HIS WIFE ON A FISHING EXCURSION--THE LAW OF THE CASE--STRONG-MINDED WOMEN.

The right to the glory of having killed the bear being settled, the Doctor, addressing himself to Spalding, remarked--"There was something in H----'s appeal to you about the law of his case, that reminded me of a little scene between my wife and myself, many years ago, when we were both younger than we are now, and certainly had never antic.i.p.ated the dark years of trial, through which we were unexpectedly called upon to pa.s.s. You know that I started in life, like Smith here, a gentleman of fortune, calculating, like him, to live at my ease, without troubling myself with the cares of any particular business, as I pa.s.sed along. Still I thought, or rather my father thought, that it would be well enough, even for a gentleman, to have at least a nominal t.i.tle to some profession. So I studied the law, and was admitted as an attorney and counsellor of the courts. Never intending to practise, I did not become very profoundly learned in the profession; still I became, to some extent, indoctrinated with its mysteries. I did not like it; and when the necessity for some active employment came looming up in the distance, I chose a different calling, and at six-and-twenty, commenced the study of my present profession. This did not occur until after I had been married some three years. I lived in the country then, or rather, summered there, in a beautiful little village in the interior of the State, in a pleasant, old-fashioned house, which my father built, and which, as I was his only heir, I supposed of course I owned. Some half a dozen miles from the village was a fine trout stream, to which my wife and myself used occasionally to go on a fishing excursion. On such occasions we went on horseback, as the road was somewhat rough, and my wife was as much at home in the saddle as I was. This, I repeat, was a good while ago, and we were both a score of years younger than we are now. Well, I started out alone one day to visit this trout stream, antic.i.p.ating a good time with its speckled, and usually greedy inhabitants. I say I was alone, and yet there was with me, all the way, and all the time, one who can talk, reason, philosophise, understand things as well as you or I; and one, to all appearance, as much and distinctly human as you or I."

"Impossible!" exclaimed Smith, "we can't go that, Doctor. I can't stand my quarter of that."

"Foolish man!" continued the Doctor; "I say I was alone; let me demonstrate my proposition. Blackstone says, and what he says every lawyer will concede is the end of the law, and the beginning too, for that matter, that when a woman becomes a wife, she loses her ident.i.ty, becomes n.o.body; that her husband absorbs her existence, as it were, as he does her goods and chattels, in his own. Now, sir, do you comprehend? My wife was with me, and she, being according to law n.o.body, of course I was alone. You, sir, being a law abiding man, must admit that my proposition is Q.E.D.

"The doctrine of absorption, as I call it, is convenient. It promotes harmony of action, by subjecting it to the control of a single will, thus avoiding all embarra.s.sment from a conflict of opinion between man and wife. So, on my way to the trout stream (I say _my_ way, for though my wife was on horseback by my side, yet she being, according to the best legal authorities, n.o.body, you see I was alone), I thought I would enlighten the good lady in regard to the true position, or rather the no position at all, which she occupied. Our way lay for a couple of miles along an old road, towards a clearing which had been abandoned, and through which the stream flowed. The tall old trees spread their long arms over us, clothed in the rich verdure of spring, and the breeze, so fresh and fragrant, moaned, and sighed, and whispered among the leaves.

"'My dear,' said I, blandly, as we rode along, the birds singing merrily among the branches above us, 'do you know that you are n.o.bODY?'

"'n.o.body, Mr. W----,' (I was simply Mr. W----then; I had not become, nor even dreamed that I should become a Doctor), 'n.o.body, Mr. W----?

Did you say n.o.body?'

"'Absolutely n.o.body,' said I. 'A perfect nonent.i.ty. You are less even than a legal fiction.'

"'Look you,' said she, as she applied the whip to her pony, in a way that brought him, with a bound, across the road directly in front of me (she rode like a belted knight), obstructing my progress, 'Look you, Mr. W----,' and there was a red spot on her cheek, and her eye sparkled like the sheen of a diamond, 'let us settle this matter now.

I can bear being of small consideration, occupying very little s.p.a.ce in the world, but to be stricken out of existence entirely, to possess no legal ident.i.ty, to be regarded as absolutely n.o.body, is a thing I don't intend to stand--mark that, Mr. W----.'

"'Keep cool, my dear,' said I; 'let us argue this matter.' I was calm, for I knew the law was on my side; I had the books, and the courts, and the statutes all in my favor. I was fortified, you see.

"'Argue the matter!' she exclaimed; 'not till it is admitted that I'm somebody. If I'm n.o.body, I can't be argued with, I can't reason, nor talk. Now, Mr. W----, I've a tongue.'

"'Gospel truth,' said I, 'whatever the authorities may say. But we will admit, for the sake of the argument, that you are somebody; Blackstone says'----

"'Out on Blackstone,' she exclaimed; 'what do I care for Blackstone, whose bones have been mouldering in the grave for more than a hundred years, for what I know. Don't talk to me about Blackstone.'

"'But, my dear, you are _my_ wife, and Blackstone says'--

"'I don't care a fig what Blackstone says. If I _am_ your wife, I am my mother's daughter, and my brother's sister, and Tommy's mother, and there are four distinct individualities all centered in myself.'

"'But,' said I again, 'Blackstone says'--

"'Confound that Blackstone,' she exclaimed; 'I do believe he has driven the wits out of the man's head. Now, look you, Mr. W----, you invited me to ride with you; you now say I am n.o.body. Very well. If n.o.body leaves you, I suppose you won't be without company, for somebody certainly left home with you this morning, and has rode with you thus far. So, good-bye, Mr. W----; success to your fishing, Mr.

W----,' and she struck into a gallop towards home.

"'Hallo!' said I, 'I give up the point. I take back all I said. _Culpa mea_, my good wife. If Blackstone does say'--

"'Not a word more about Blackstone,' said she, shaking her whip, half serious half playfully, at me; 'if I go with you, I go as somebody--a legal ent.i.ty.'

"'Very well,' said I, 'we'll drop the argument.'

"'Not the argument, but the fact, Mr. W----; and admit that Blackstone was a goose, and that his law, like his logic, is all nonsense when measured by the standard of common sense and practical fact. Admit that a woman, when she becomes a wife does not become a mere nonent.i.ty, or I leave you to journey alone.'

"'Very well, my dear, let us see if we cannot compromise this matter.

Suppose we allow his philosophy to stand as a general truth, making you an exception. We'll say that wives in general are n.o.body, but that you shall be exempt from the general rule, and be considered always hereafter, and as between ourselves, as somebody.'

"You see the shrewdness of my proposition. Firstly, it saved Blackstone; secondly, it saved _me_, let me down easy; and thirdly, it appealed to the womanly vanity of my wife, and it took.

"'Oh, well,' she said, as she brought her pony alongside of me, and we jogged along cosily together, 'I see no objection to that. Other wives can take care of themselves. But this compromise, as between _us_, Mr.

W----, must be a _finality_. No Nebraska traps, Mr. W----. No Kansas bills hereafter. It must be a finality, mind.'

"'Very well,' said I; and a robin that was building its nest on a limb that hung over the road, paused in its labors, and burst into song, and the burden of its lay seemed to be a compromise, which, in truth, should be a FINALITY.

"We were successful in our fishing, and we followed the old-fashioned custom as to bait. We discarded the fly, using only the angle-worm. At the foot of the ripples; under the old logs; where the water went whirling under the cavernous banks; in the eddies; among the driftwood; everywhere, we found trout--not large, none weighing over six ounces, and few less than three. We caught my basket full in less then two hours, and then rode home. It was a day of enjoyment to us, you may be sure.

"And now I appeal to you, in all seriousness, my friend," the Doctor continued, addressing himself to Spalding, "if there is not something due to the wives and mothers of the present generation? Is there not some relaxation of the law necessary in vindication of the civilization of the age, against the legal barbarisms still remaining on the statute books, and adhered to by the common law, in regard to wives and mothers? Is the current of progress to flow by them for ever, bearing no reforms which shall affect them? Do not misunderstand me. I am no advocate of the practices of the 'strong-minded women,'

who hold their conventions and public meetings, who uns.e.x themselves by mounting the forum, and, throwing off the retiring modesty of the true woman, seek to secure notoriety at the price of popular contempt.

But there are evils which bear heavily, too heavily, upon the women even of this country, and which, for the credit of the civilization of the age, should be corrected. As calm-minded, philanthropic men, we, the American people, should look into this subject, and, regardless of jeer and scoff, do what justice, humanity, and the right demand of us, in regard to some of the social and legal inequalities between the s.e.xes, pertaining to the married state."

"It is one of the mysteries of our system of jurisprudence," replied Spalding, "that while everything else is on the move, while progress is written in letters of living light upon all other things, that remains stationary--at least in a comparative sense. The world moves on, civilization advances, science and the arts stride forward, but the law stands still. A principle which may have been somewhat changed, modified, bent, if you please, into an adaptation to the exigencies of the present, and a fitness for the changed circ.u.mstances of the times in which we live, is suddenly thrown back into its old position by the exhumation of some 'decision' from the dust of ages, made by some judge away back in the olden times, resurrected by the research of some antiquarian lawyer, who loves to delve among the rubbish of past generations. The learning, the wisdom, the philosophy of the present is discarded, and the spirits of a lower civilization are conjured from the darkness of vanished centuries, to settle rules for the government of commerce, personal conduct, and the social relations of the times in which we live. There seems to be something paradoxical in the idea that the older the decision the better the law--the more ancient the commentator, the profounder the wisdom of his axioms. This might be well, were it true that civilization is 'progressing backwards,' the science of government retrograding. In that case, it would of course be true, that the nearer you approach the fountain, the purer the stream would be. But such is not the fact.

In all these attributes the world is on the advance, the science of government progressive; and to make the wisdom of centuries ago override the wisdom, or overshadow the light of the present, is a paradox peculiar to our system of jurisprudence. There are lawyers and judges, who enjoy a high reputation, whose fame rests upon their profound research among the worm-eaten tomes of black-letter law, and whose glory consists in their familiarity with the opinions and axioms of men who lived and died so long ago that their very tombs are forgotten. This cla.s.s of lawyers and jurists hold in contempt all the learning, the philosophy, the practical wisdom of the present --rejecting everything that is not bearded and h.o.a.ry with age.

Seated in their libraries, in the midst of their ponderous octavos, their Roman and black-letter volumes, they reject with disdain the commentators, the opinions of the jurists of the present century; and brushing away the cobwebs and dust from the covers of their treasured relics of bygone ages, they clasp them in a loving embrace close to their hearts, exclaiming, 'These are my jewels.' Whatever has not the sanction of ancient authority, is folly to them--worse than folly, for it is innovation, and that is rank impiety.

"I remember an anecdote of the celebrated William Wirt, related to show how ready his mind was, how instant in activity, and how suddenly it would flash with an eloquence, superior to that exhibited by the most elaborate preparation. He was arguing a cause before the Supreme Court of the United States, and laid down, as the basis of his argument, a principle to which he desired to call the particular attention of the judges. The opposing counsel interrupted him, calling for the authority sustaining his principle,--'The book--the book!' demanded his adversary. 'Sir, and your honors,' said Wirt, straightening himself up to his full height, 'I am not bound to grope my way among the ruins of antiquity, to stumble over obsolete statutes, or delve in black letter law, in search of a principle written in living letters upon the heart of every man.' If the idea contained in this answer of Wirt, were more fully appreciated by our modern jurists, it would be all the better for the country.

"The common law is said to be the perfection of reason. This is doubtless true, but it is the perfection of the reason of the present, as well as of the past. Its principles are elastic, suiting themselves to the civilization of all ages. They are progressive, keeping pace with the progress of all times. They are not immutable, save in the element of right, and they therefore shape themselves to all circ.u.mstances, moving along with the onward march of trade, the commerce, the social relations, and business of the people. The learning of to-day, the wisdom, the philosophy of to-day is profounder than that of any preceding century, and it is folly to overthrow it by, or compel it to give place to, the learning, the wisdom, the philosophy of departed and ruder ages.

"In regard to your question, whether there is not some relaxation of the law necessary, in vindication of the civilization of the age, against the legal barbarisms remaining upon the statute book, and in the common law in regard to our wives, I answer frankly that I do not know about that. The law, as you read it in Blackstone, and as you expounded it to your wife, on your fishing excursion, has been somewhat modified. Wives have been given a _status_ by modern legislation; and a woman, by becoming a wife, does not now cease to be a legal ent.i.ty. The law permits her to retain and control her property irrespective of her husband, and she has, therefore, thus far, ceased to be 'n.o.body.' But my private opinion is, that, as a general thing, the women of this country get along very well, even under the pressure of the 'barbarisms' of which you speak. They manage, one way and another, to get the upper hand of their legal lords, law or no law. If their existence, in the light of authority, is 'less than a legal fiction,' they come to be regarded, or make themselves felt in the world as practical facts. They are quite as apt to be at the top, as at the bottom of the ladder, notwithstanding what 'Blackstone says'

about their legal position. There is, doubtless, a good deal of abuse of authority on the part of husbands, but the women get their share of the good that is going in the world, as a general thing. If the law is against them, they manage to usurp full an even amount of privilege and authority, and keep along about in line with the other s.e.x. I never knew an out and out controversy between a man and his wife, in which the former did not get the worst of it in the end; and as to the impositions, which as a melancholy truth are too frequent, they are about as much on one side as the other. It is not to legal enactments that we must look for the cure of unhappiness incident to the married state, but to a reform in temper and habits of life. Besides, I do not believe the wives of this country would accept of a strict legal equality at all, if it were tendered them as a FINALITY. I believe they would prefer remaining as they are; for by being so, they are left to the resources of their own genius, to win by their tact, what is not guaranteed by law. I know that there are a good many crazy-headed people in pantaloons as well as petticoats, who go about laboring for the 'emanc.i.p.ation of women,' as if the heavens and earth were coming together. But those of them who wear skirts, generally have delicate white hands, flowing curls, flashing black eyes, and the gift of oratory--and a desire to exhibit them all; while those in pantaloons have their hair combed smoothly back, as if preparing to be swallowed by a boa-constrictor, wear white cravats, talk softly, and show a good deal of the whites of their eyes, from a chronic habit of looking up towards the moon and stars. As a general thing, these latter are of no practical use in the world, and make as good a tail to the kite of the 'strong-minded women' as anything else. But these people represent a very small portion of the American women, and until the ma.s.ses demand 'emanc.i.p.ation,' I rather think that matters had better be permitted to remain as they are. The women will take care of themselves--no fear of that."