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 anticipated
the dark years of trial, through which we were unexpectedly called
upon to pass. 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 passed 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
title 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, anticipating 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 identity,
becomes nobody; 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
nobody, 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 embarrassment 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, nobody, 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 NOBODY?'
"'Nobody, Mr. W----,' (I was simply Mr. W----then; I had not become,
nor even dreamed that I should become a Doctor), 'Nobody, Mr. W----?
Did you say nobody?'
"'Absolutely nobody,' said I. 'A perfect nonentity. 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 space
in the world, but to be stricken out of existence entirely, to possess
no legal identity, to be regarded as absolutely nobody, 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 nobody, 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 nobody. Very well. If
nobody 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 entity.'
"'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
nonentity, 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 nobody, 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 unsex 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
sexes, 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 circumstances
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 class 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 hoary 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
circumstances, 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 entity. The law permits her to retain and control her property
irrespective of her husband, and she has, therefore, thus far, ceased
to be 'nobody.' 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 sex. 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 'emancipation 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 masses demand 'emancipation,' 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."