While Joe’s mother was lying ill, and after it had become certain that she would soon leave this world forever, the question had been freely-discussed as to what her boy’s future should be.  In Captain Joseph Pelham’s mind there was only-one answer to this question, — that the lad should come to him.  He bore the Captain’s name; he represented the Captain’s son; he should take a place now in the Captain’s home.

It was now about three weeks since Joe’s mother had been buried.  The stone had not yet been cut and set over her grave.  But the Captain thought it time to drive over to James Parsons’s and take the boy.  That James would make any serious opposition perhaps never entered his mind.  It was a bright, charming afternoon; with his shining horse, in a bright, well-varnished buggy, the Captain drove over the seven miles of winding roads through the woods, and along the sea, to the village where James Parsons lived.  He tied his horse to the hitching-post in front of the broad cottage house, went down the path to the L door, knocked, and went in.

James was sitting in a large room which served in winter as a kitchen and in summer as a sort of sitting-room, smoking a pipe and gazing vacantly into the pine-branches in the open fireplace before him.  He had been out all day on his marsh, but he had been home a couple of hours.  His wife — kindly soul — received Captain Pelham at the door, wiping her hands upon her apron, and modestly showed him into the sitting-room; then she retired to her tasks in the shed kitchen.  She moved about mechanically for a moment; then she ran hastily out into the lean-to wood-shed, shut the door behind her, sat down on the worn floor where it gives way with a step to the floor of earth by the wood-pile, hid her face in her apron, and burst into tears.

Joe was at the wharf with his comrades playing at war.

Now, if there ever was a hospitable man, — a man who gave a welcome, — a rough but merry welcome to every one who entered his doors, it was James Parsons.  He had a homely, jocose saying that you must either make yourself at home or go home.  But on this occasion he rose with a somewhat forced and awkward air, laid his pipe down on the mantel-piece, and nodded to the Captain with an air of embarrassed inquiry.  Then he bethought himself, and asked the Captain to sit down.  The Captain took the nearest chair, beside the table, where Mrs. Parsons had lately been sitting at her work.  James’s chair was directly opposite.  The table was between them.

James rose and went to the mantel-piece, scratched a match upon his boot-heel, and undertook to light his pipe.  It did not light; he did not notice it, but put the pipe in his mouth as if it were lighted.

It occurred to Captain Pelham now, for the first time, absorbed as he had been with exclusive thoughts of the boy, that he should first say something to this old man about the daughter whom he had lost:  and he made some expressions of sympathy.  The old man nodded, but said nothing.

There was silence for two or three minutes.

The subject in order now was inevitably the boy.  Captain Pelham opened his lips to claim him; but, almost to his own surprise, he found himself making some common remark about the affairs of the neighborhood.  It came in harsh and forced, as if it were a fragment of conversation floated in by the breeze from the street outside.  Then the Captain waited a moment, looking out of the window.

James took his pipe from his mouth and leaned his elbows on the table.  “Why don’t you go take him?” he suddenly said:  “he’s probably down to the wharf.  Ef you have got the claim to him, why don’t you go take him?  You ’ve got your team here, — drive right down there and put him in and drive off; if you ’ve got the right to him, why don’t you go take him?  But ef you ’ve come for my consent, you can set there till the chair rots beneath you.”

With this, James rose and took the felt hat which was lying by him on the table, and saying not another word, went out of the door.  He went down to the shore, and affected to busy himself with his boat.

There was nothing for Captain Pelham to do but to take his hat, untie his horse, and drive home.

The Captain well knew that nobody in the world had a legal right to the child until a guardian should be appointed.  A plain and simple path was open before him:  it was his only path.  James Parsons had proved wilful and wrong-headed; there was nothing now but to take out letters as guardian of the boy.  Then James would acquiesce without a word.

Immediately after breakfast the Captain went down the street.  He opened his letters and attended to the first routine of business; then he went across the way and up a flight of stairs to a lawyer’s office.

If you had happened to read the county papers at about this time, you would have seen among the legal notices two petitions, identical in form, — the one by Joseph Pelham, the other by James Parsons, — each applying for guardianship of Joseph Pelham, the younger of that name, with an order upon each petition for all persons interested to come in on the first Tuesday of the following month and show cause why the petitioner’s demand should not be granted.

There were fifteen or twenty people from different towns in attendance when the court opened on the important first Tuesday.  As one after another transacted his affairs and went away, others would come in.  Three or four lawyers sat at tables talking with clients, or stood about the judge’s desk.  There was a sprinkling of women in new mourning.  Printed papers, filled out with names and dates, — petitions and bonds and executors’ accounts, — were being handed in to the judge and receiving his signature of approval.

The routine business was transacted first.  It was almost noon when the judge was at last free to attend to contested matters.  There was a small audience by that time, — only ten or a dozen people, some of whom were waiting for train-time, while others, who had come upon their own affairs, lingered now from curiosity.

The judge was a tall, spare, old-fashioned man; he had held the office for above thirty years.  He was a man of much native force, of sound learning within the range of his judicial duties, and of strong common-sense.  He was often employed by Captain Pelham in his own affairs, and more particularly in bank and insurance matters, — for the probate judges are free to practise at the bar in matters not connected with their judicial duties, — and Captain Pelham had always retained him in important cases as counsel for the town.  He had a large practice throughout the county; he knew its people, their ideas, their traditions, and their feelings.  He understood their social organization to the core.

“Now,” said the judge, laying aside some papers upon which he had been writing, and taking off his glasses, “we will take up the two petitions for guardianship of Joseph Pelham.”

Captain Pelham and the lawyer whom he had employed took seats at a small table before the judge; James Parsons timidly took a seat at another.  His petition had been filled out for him by one of his neighbors:  he had no counsel.

Captain Pelham’s lawyer rose; he had been impressed by the Captain with the importance of the matter, and he was about to make a formal opening.  But the judge interrupted him.  “I think,” he said, “that we may assume that I know in a general way about these two petitioners.  I shall assume, unless something is shown to the contrary, that they are both men of respectable character, and have proper homes for a boy to grow up in.  And I suppose there is no controversy that Captain Pelham is a man of some considerable means, and that the other petitioner is a man of small property.

“Now,” he went on, leaning forward with his elbow on his desk, and gently waving his glasses with his right hand, “did the father of this boy ever express any wish as to what should be done with him in case his mother should die?” Nobody answered.  “It would be of no legal effect,” he said, “but it would have weight with me.  Now, is there any evidence as to what his mother wanted?  A boy’s mother can tell best about these things, if she is a sensible woman.  Mr. Baker,” he said to Captain Pelham’s lawyer, “have you any evidence as to what his mother wanted to have done with him?”

Mr. Baker conversed for a moment with Captain Pelham and then called him to the stand.

Captain Pelham testified as to his frequent visits to the boy’s mother, and to her unbroken friendly relations with him.  She had never said in so many words what she wanted to have done for the boy, but he always understood that she meant to have the child come to him; he could not say, however, that she had said anything expressly to that effect.

James sat before him not many feet away, in his old-fashioned broadcloth coat with a velvet collar.  He cross-examined Captain Pelham a little.

“She did n’t never tell you,” he said, “that she was going to give you the boy, did she?”

“No, sir;” said Captain Pelham.

“How often did your wife come over to see her?”

“I could n’t tell you, sir,” said the Captain.

“Not very often, did she?”

“I think not,” the Captain admitted.

“The boy’s mother did n’t never talk much about Mis’ Captain Pelham, did she?”

“I don’t remember that she did.”

“She did n’t never have her over to talk with her about what she was going to do with the boy, did she?”

“I don’t know that she did,” said the Captain.  “She is here; you can ask her.”

“You didn’t never hear of her leaving no word with Mis’ Captain Pelham about taking care of the boy, did you?”

“I can’t say that I did,” said Captain Pelham.

The old man nodded his head with a satisfied air.  His cross-examination was done.

The Captain retired from the witness-stand; his lawyer whispered with him a moment and then went over and whispered for two or three minutes with Mrs. Pelham; then he said he had no more evidence to offer.

“Mr. Parsons,” said the judge, “do you wish to testify?”

James went to the witness-stand and was sworn.

“Did n’t your daughter ever talk about what she wanted done with the boy?”

“Talk about it?” said James.  “Why, she didn’t talk about nothing else.  She used to have it all over every time we went in.  It was all about how mother ’n me must do this with him and do that with him, — how he was to go to school, what room he was going to sleep in to our house, and all that.”

Mr. Baker desired to make no cross-examination, and James’s wife was called, and testified in her quaint way to the same effect.

By a keen, homely instinct James had half consciously foreseen what would be the controlling element of the case; and while he had not formulated it to himself he had brought with him one of his neighbors, who had watched with his daughter through the last nights of her life.  She was one of the poorest women of the village.  Her husband was shiftless, and was somewhat given to drink.  She had a large family, with little to bring them up on.  Her life had been one long struggle.  She was extremely poorly dressed, and although she was neat, there was an air of unthrift or discouragement about her dress.  She wore an oversack which evidently had originally been made for some one else; it lacked one button.  She was faded and worn and homely; but the moment she spoke she impressed you as a woman of conscience.  She had talked in the long watches of the night with the boy’s mother, and she confirmed what James and his wife had said.  There could be no question what the mother had desired.

Mr. Baker ventured out upon the thin ice of cross-examination.

“She must have talked about her father-in-law, Captain Pelham?” he said.

“Oh, yes,” said the woman, “often.”

“She seemed to be attached to him?”

“Yes, indeed,” said the woman, quickly; “she was always telling how good he was to her; I have heard her say there was n’t no better man in the world.”

“She must have talked about what he could do for the boy?”

“Yes,” said the woman.  “She expected him to do for Joe.”

“Did n’t she ever say,” and the lawyer looked round at James, — “did n’t you ever hear her say that she was worried sometimes for fear her father would not be careful enough about the boy?”

The woman hesitated a moment.  “Yes,” she said, “I have heard her say so, but that ’s what every mother says.”

“What reason did you ever hear her give,” the lawyer asked, “why she would rather have him stay over there than to go and be brought up by his grandfather Pelham?”

The woman looked around timidly at the judge.  “Be I obliged to answer?” she said.

The judge nodded.

The woman looked toward Captain Pelham with an embarrassed air.  He was the best friend she had in the world.

“I rather not say nothing about that,” she said; “it ’s no account, anyway.”

“Oh, tell us what she said,” said Mr. Baker.

He felt that he had made some progress up to that point with his cross-examination.

“Well, it was n’t much,” said the woman; “it was only like this.  I have heard her say that Miss Captain Pelham was a good woman and meant to do what was right, but she was n’t a woman that knew how to mother a little boy.”  And here the witness began to cry.

The judge moved slightly in his chair.

There was more or less rambling talk about the way the boy was allowed to run loose on the shore, and some suggestions were made in the way of conversational argument about his being allowed to go barefoot, and to go in swimming when he pleased; but the judge seemed to pay very little attention to that.  “That ’s the way we were all brought up,” he said.  “It is good for the boy; he ’ll learn to take care of himself, and his mother knew all about it.

“It is plain enough,” he said at last, “that there would be some advantages to the boy in going to live with Captain Pelham; but there is one thing that has been overlooked which would probably have been suggested if the petitioner Parsons had had counsel.  It has been assumed that the boy would be cut loose in future from his grandfather Pelham unless he was put under his guardianship; but that is n’t so.  All his grandparents will look out for him, and when he gets older, and wants to go into business, here or elsewhere, Captain Pelham will look after him just the same as if he were his guardian.  The other grandfather has n’t got the means to advance him.  I am not at all afraid about that,” he said; “the only question here is, where he shall be deposited for the next five or six years.  Either place is good enough.  His father had a right to fix it by will if he had chosen to; but he did n’t, and I think we must consider it a matter for the women to settle:  they know best about such things.  It is plain that his mother thought it would be best for him to stay where he is, and she knew best.  He ’s wonted there, and wants to stay.”

Then he took up his pen and wrote on Captain Pelham’s petition an order of dismissal.  On the other he filled out and signed the decree granting guardianship to James Parsons, and approved the bond.  Then he handed the papers to the register and called the next case.

From this day on, little was seen of Captain Pelham at James’s house.  Sometimes he would stop in his buggy and take the boy off with him for a little stay; but Joe soon wearied of formality, and grew restless for James, for his grandmother Parsons, for the free life of the little wharf and the shore.  Life always opened fresh to him on his return.

Once and only once Captain Pelham entered James’s door-yard.  James was sitting in an armchair under an apple-tree by the well, smoking and reading the paper.  The Captain began, this time, with no introduction.

“Fred Gooding,” he said, “tells me you are talking of letting Joe go out with Pitts in his boat You know Pitts is no fit man.”

“You tell Fred Gooding he don’t know what he ’s talking about,” said James, as he rose from his chair, holding the paper in his hand.  “What I told Pitts was just the contr’y, — the boy should n’t go along o’ him.”  Then his anger began to rise.  “But what right you got,” he demanded, “to interfere?  ’T ain ’t none of your business who I let him go along of.  It’s me that’s the boy’s guardeen.”

“Very well,” said the Captain.  “Only I tell you fairly, — the first time I get word of anything, I ’ll go to the probate court and have you removed!”

James followed him down the path with derisive laughter.  “Why don’t you go to the probate court?” he said; “you hed great luck before!” And as the Captain drove away, James shouted after him, “Go to the probate court!  Go to the probate court!”