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 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."

Wild Northern Scenes; Or, Sporting Adventures with the Rifle and the Rod · 第 21 / 31 章