+
a

SS 2: - ek

‘ ‘ = ee Aa Ph rv ae Sey
a E * ‘ . 4 . 15° 8 om TE be trie, . tek eee OS -

oy * ‘ - 4 ae + tay ™ J 7s ee 3 * re eke *

< es : Ree che iti

vets ,
rv :
as -
.
:
: reget career"
p > hen i aa + pest gt “oe
=“ eaprpte a Beh ha aes Se
ym ORs Ty ne QAR. Ge heey Se
A 2 PARR RN ae (wey os
; : See ane rocer ss
P 3 > ; : f 4 = & . hee < Sete te R
5 oa es aN RN Pe
‘ §
\ 1 seri
‘ :

: : nage mn os
i * 7 = e Re Re, a: a
‘ ' “¢" : 1 gt ye Be tom Wee

: E a . JF

litte 2;
ey!
™* t%
ae

af
q

;
8 :

Pett

ete
Pek weit
Eat at ate ¥

ii eh sk a a Ph ai

ee

ts, J
ead
=é
& ‘
:
3 Fi
: i
¥
¢ _ i
iia . . eigen
i 4 ‘ ; i eh a Shy ao eae ee a Pestm 4 eee see on
2 ¢ ‘ - ore A Esaet - s
: ; ’ a. a: : wee mi teasers
aay. é ig & oe -* r'
© ,
- Ld ° ; r
4
?
ay : Pi ¢ 4 ae
‘4 ee ere Ae ar ae
ee) eee ie
rh. &%

ope ©
a 5

ot ee

#
ee

‘ . \ |
eared et
. a) rae
- , z Sos
t tw «
“ . 9
., ; hot
’ a a
‘ i Ad oe
: = - oO shy FER
Pe gh. <*
: Btora ate
: F

oa

a

0

ete
Pacer

Byer
i a ate
ic

-
f —_
-

SY ) o
ot

PROCEEDINGS

American Philosophical Society

HELD AT PHILADELPHIA

FOR

PROMOTING USEFUL KNOWLEDGE

VOLUME LI

IgI2

PHILADELPHIA Q \
THE AMERICAN PHILOSOPHICAL SOCIETY

IgI2

4

ee ee ee

Si ante alia

a ee eee ee en tie - R
See rn ag eae ae ae ac ene a a eae Oe acre ee
s rN ot Oe ey Oe ae oe OM LER TT ge pele ee Se

CONTENTS.

Determination of the Depth of the Milky Way. By T.J.J.SEE 1
Contraband of War. By JoHN Bassett Moore............. 18
The Legendary and Myth-making Process in Histories of the
American Revolution. By Sypney G. FISHER............ 53
Phylogenetic Association in Relation to the Emotions. By
Rome Ws Cee A cs Poe te any ae 76
The Nature of the Japanese Verb, So-called. By BENJAMIN
RRO SMM eG opie a es Awe aes shoes ete ete cuaes QI

The Validity of the Law of Rational Indices, and the Analogy
between the Fundamental Laws of Chemistry and Crystal-
mornony by Austin PF. Rocers 2. c..5 ccs rae ee cokes 103

Dynamical Theory of the Globular Clusters and of the Cluster-
ing Power Inferred by Herschel from the Observed Figures

of Sidereal Systems of High Order. By T. J. J. SEE....... 118
The Classification of the Black Oaks. By WILLIAM TRELEASE 167
Heredity of Feeble-mindedness. By Henry H. Gopparp..... 173
The Heredity of Epilepsy Analyzed by the Mendelian Method.

ey SPAVIIN S AIRCHILDY WW BEKS oo. «nove ck co sabe sews ss oes 178
Is the Control of Embryonic Development a Practical Problem?

BARGES EE STOCK ARDA Gs << 5 ake seb ae 08 oo tose 4 19!
An Avian Tumor in its Relation to the Tumor Problem. By

TON A ee 8 og, oa eue wap ee een ls bec 201
The Protein Poison. By Victor C. VAUGHAN, M.D......... 206
Some Geochemical Statistics. By Frank WHuIGGLESwoRTH

Re ar ac waa s 6 vos 0 He a phe ca neeecce 214

Thermal Relations of Solutions. By WiLLIAM Francis MAGIE 235
New Magnetic Charts of the Indian Ocean. By L. A. BAUER.. 240
The Diary of a Voyage to the United States, by Moreau de

maint- Mery. By Srewart lL. Mise oii. sc. on wow cence ses 242
The Classification of Carbon Compounds. By Marston Tay-
Bee Ts 5 oo hn 6 ah ks oe kc ne ad chase uscess 252

iv CONTENTS.

The Treaty-making Power of the United States and the Methods
of its Enforcement as Affecting the Police Powers of the
erates. By Cuanties H. BUSS osc iecas is sec 271
The Formation of Coal Beds. III. By Joun J. SrevENson.. 423
An Autocollimating Mounting for a Concave Grating. By
FiornAce Cruarx RICHARDS joo bowie seek ne oe eee 554
The Objective Prism. By Epwarp C, PICKERING ........... 564
Notes on Plates of Nova Geminorum of 1912 taken with the
Bruce Spectrograph of the Yerkes Observatory. By Storrs

Pe CRABRETT i505 cay)» eten ees Rema ONs Vos ieee 568
Relations Between the Spectra and Other Characteristics of the

Stars. By Henry Nogris RUSSELL... 05.0... 6 issia een eee 569
Some Former Members of the American Philosophical Society.

By Tnomas Winning BALce 6 oie ci ies ies «ogee 580
PING ooo e550 0 5 o's swale MA Ph cies «kee itii-xix
Opsituary Notices or Members DECEASED

Sree Denti: Poincaré... ci iaccawesensas 0 ocs sss 5 eee ~ fii

For CorRIGENDA see page 603.

PROCEEDINGS

AMERICAN PHILOSOPHICAL SOCIETY
HELD AT PHILADELPHIA
FOR PROMOTING USEFUL KNOWLEDGE

VoL. LI JanuaRy—Marcu, 1912 No. 203
DETERMINATION OF THE DEPTH OF THE
MILKY WAY.
Br tT. 5.32SER

(Read January 5, 1912.)

ee ee Ot Se ee ne me hk” Oe

INTRODUCTORY REMARKS.

The problem of determining the depth of the Milky Way, as
accurately as possible, is one which has now engaged my attention
for over twenty years, and I will therefore take this occasion to
bring together the results at which I have arrived, partly because
they are of high general interest, and partly because the progress thus
made will prove instructive as to the methods which must be
adopted for the measurement of the distances of the most remote
objects of the sidereal universe. Here we have to deal with dis-
: tances so immense that the method of annual parallaxes, commonly
: used for the stars comparatively near the sun, utterly fails; and
: recourse must be had to other methods which will serve for the
4 greatest distances to which our modern giant telescopes can penetrate.
t Alpha Centauri, the nearest of the fixed stars, was also the first
a to be successfully measured for parallax, by Thomas Henderson, of
the Cape of Good Hope, in 1831; but the work was not reduced till
January, 1839, and meanwhile Bessel had measured the parallax of
61 Cygni in 1838 and promptly published the result of his triumph.

PROC, AMER. PHIL. SOC., LI. 203 A, PRINTED MARCH 16, I9I2.

EISEN eae NT eet OneRe e erm

2 SEE—DETERMINATION OF THE (January 5,

Of late years astronomers have given greatly increased attention to
the question of the distances of the stars, and systematic campaigns
of the most laborious kind have been carried on by Gill; Elkin and
Chase, of Yale; Kapteyn, of Groningen; and Schlesinger, at the
Yerkes Observatory, Chicago. Some 350 stars have now been
studied by the standard method of parallaxes, and for most of these
objects, perhaps about 200 in number, fairly satisfactory data have
been deduced; but the method can be extended only to stars within
less than 100 light-years of our sun, and is therefore very limited in
its applicability, owing to the small diameter of the earth’s orbit,
and the insensible effects of the annual displacements resulting from
the orbital motion of our planet. As nature herself has fixed the
limits of this method, astronomers have naturally cast about for
other methods of greater generality and have finally developed
processes of surprising power, of which an account will be given in
the present paper.

§ 1. OUTLINE OF THE METHODS ADOPTED.

Among previous investigators who have occupied themselves
with the difficult problem of the profundity of the Milky Way the
first place will be universally assigned to the incomparable Sir Wil-
liam Herschel, who extended his researches over many years, and
reached results which were for a time accepted, but have been
rejected for three quarters of a century, and yet are now proved to
be essentially correct. It is very remarkable and exceedingly unfor-
tunate that Herschel’s conclusions have been generally rejected by
his son, Sir John Herschel, and other astronomers during the past
seventy-five years. But before discussing the circumstances which
led to this outcome I shall recall the modern attempts at the solution
of the problem of determining distances in the Milky Way.

After the spectroscope came into use and Huggins had applied
Doeppler’s principle to the motion in the line of sight (1868) it
was pointed out by Fox Talbot in 1871 (Brit. Assoc. Report, 1871,
p. 34, Pt. II.) that the possibility existed of determining the absolute
dimensions of the orbit of a pair of binary stars which had a known

1912.] DEPTH OF THE MILKY WAY. 3

angular dimension in the sky, and thus parallaxes might be found
of systems very remote from the earth. In 1890, while a post-
graduate student at the University of Berlin, I developed this method
still further, and showed how it could be used also to test the accu-
racy of the law of universal gravitation in the stellar systems. The
spectroscopic method then outlined was brought to more general
form in 1895, and it at once occurred to me to point out its use for
measuring the distance of clusters in the Milky Way (A. N. 3,323),
as more certain than Herschel’s method of star gauges.

Our age is one of rapid improvement in all scientific processes,
and during the past sixteen years naturally much progress has been
made in double-star astronomy, as well as in our knowledge of
nebulz and clusters. On looking more closely into the spectroscopic
method, which in 1895 had been shown to be applicable to objects
1,000 light-years from the sun, and might thus include all suitable
double stars within this sphere, I became convinced that while it is
a great theoretical advance over the old method of parallaxes, it
still is quite inadequate for finding the distances of the most remote
objects in the sidereal universe. Accordingly in 1909 I returned to
the improvement of Herschel’s method as the most promising, for
the determination of the distances of the most remote objects. Here
are the grounds for this decision:

1. It was noticed, as remarked by Burnham, that revolving double
stars are rare, if not unknown, in clusters, and among the star-clouds
of the Milky Way—not because such systems are not present in
these masses of stars, but because they cannot be separated, owing
to the great distances at which these masses of stars are removed
from us.

2. When double stars cannot be clearly separated in the tele-
scope they cannot be used for parallax by the spectroscopic method ;
and thus the spectroscopic method, while having a wider range of
application than the method of parallaxes, in something like the
ratio of the size of the double star orbit to that of the orbit of the
earth, is yet applicable only to stars within about 1,000 light-years
of our sun.

4 SEE—DETERMINATION OF THE [January 5,

3. It will be shown below that the most remote stars are sepa-
rated from us by a distance of at least 1,000,000 light-years, and
as this space is a thousand times that to which the spectroscopic
method may be applied, it follows that there is no way of fathom-
ing these immense distances except by the improvement of the
method of Herschel.

And just as in my “ Researches on the Evolution of the Stellar
Systems,” Vol. II., 1910, p. 638, I had been able to adduce sub-
stantial grounds for returning to the vast distances calculated by
‘Herschel, so also during the past year I have been able to add to
the proof there brought forward, and will proceed to develop it
in the present paper.

: ¢
§ 2. HerscHEL’s MetHop DEPENDING ON THE SPACE PENETRATING
POWER OF TELESCOPES.

In his celebrated star gauges Herschel employed a twenty-foot
reflector of 18 inches aperture, and calculated the space-penetrating
power of stich an instrument from the ratio of the aperture of the
telescope to that of the pupil of the eye. The comparative distance
to which a star would have to be removed in order that it may appear
of the same brightness through the telescope as it did before to the
naked eye may thus be calculated. Herschel found the power of this
20-foot reflector to be 75; so that a star of 6th magnitude removed
to 75 times its present distance would therefore still be visible, as a
star, in the instrument.

Admitting such a 6th magnitude star to give only a hundredth
part of the light of the standard first magnitude star, it will follow
that the standard star could be seen as a sixth magnitude star at
ten times its present distance; and if we then multiply by the space
penetrating power, we get 750 as the distance to which the standard
star could be removed and still excite in the eye, when viewed
through the telescope, the same impression as a star of 6th magni-
tude does to the naked eye. Thus if Alpha Centauri be distant 4.5
light-years, it would be visible in Herschel’s telescope at a distance
of 3,375 light-years. This is about the distance ascribed to the

1912.] DEPTH OF THE MILKY WAY. 5

remoter stars of the Milky Way by Newcomb and many other
modern writers ; but of course it is much too small, for the follow-
ing reasons:

(a) Newcomb and other astronomers cite the possibility of
some of the stars being as much as 1,000,000 times brighter than
the average solar star, and in that case the star might be seen at
\/ 1,000,000 1,000 times that distance, or 3,375,000 light-years,
with an instrument having a space penetrating power no greater than
that employed by Herschel, provided that no light is extinguished in
its passage through space.

(b) If the telescope be more powerful than Herschel’s 20-foot
reflector, the light gathered will be increased in the ratio of #7/(18)?,
where +—diameter of mirror; and for the 60-inch reflector at
Pasadena, += 60, over nine times as much light could be gathered,
or stars seen over three times as far away. Thus if the stars have
only about 10,000 times the luminosity of the sun, they could still
be seen with the Pasadena reflector at a distance of over a million
light-years. For 3,375 l.-y. x 3 X I00=—1,012,500 light-years.

_ (c) The sensitiveness and accumulative effects of the photo-
graphic plate, will enable us to extend our sounding line still further
out into space by some three magnitudes, or four times the distance ;
and thus with a modern 60-inch reflector we could photograph stars
at a distance of about four million light-years, if they have 10,000
times the standard solar luminosity, and no light is lost in space.
How much light is really lost in space will be considered later, but
it may be stated here that it probably is decidedly less than was con-
cluded by Struve.

§ 3. INDEPENDENT CALCULATION OF THE DISTANCE OF THE
REMOTEST STARS OF THE HELIUM TyPE.

From the data given in Lick Observatory Bulletin No. 195, we
find that 225 helium stars employed by Campbell in his line of
sight work have an average visual magnitude of 4.14. Of the four
variables given in this Bulletin, we have used the maximum bright-
ness in three cases, because they are of the algol type. In the case

6 SEE—DETERMINATION OF THE [January 5,

of u Herculis, we have used the mean magnitude, because the type
of variable does not appear to be as yet well established.

Here then we have 225 helium stars at an average distance of
about 540 light-years. For in Lick Observatory Bulletin No. 195,
p. 121, Campbell finds the 180 class B, or helium, stars to have an
average distance of 543 light-years, while in Publications of the
Astronomical Society of the Pacific for June-August, 1911, p. 159,
Professor Curtis gives 534 light-years as the average distance of
312 helium stars. The former distance for 180 stars being greater
than the latter distance for 312 stars, we may take 540 light-years
as the distance of the 225 helium stars here under discussion, the
average magnitude of which is 4.14.

If the average magnitude were decreased to 21.14, by removal
to 2,512 times their present distance, which would reduce the average
brightness by 17 magnitudes, the distance of the stars would be
multiplied by 2,512, and become 1,356,480 light years. This is for
the helium stars as they are, without any hypothesis as to bright-
ness, or as to the extinction of light in space, which will be con-
sidered later.

The question will naturally be asked whether helium stars really
exist at these great distances. We may unhesitatingly affirm that
they do, because of the well-known whiteness of the small stars of
the Milky Way. It is true that Pickering has investigated the dis-
tribution of the helium stars in the Harvard Annals, Vol. 56, No.
II., and Campbell quotes these data in Lick Observatory Bulletin
No. 195 as showing that the helium stars are all bright objects.
Pickering believed his tabulations to indicate “that of the bright
stars, one out of four belongs to this class (B), while of the stars
of the sixth magnitude there is only one out of twenty; and that
few if. any would be found fainter than the seventh or eighth magni-
tude.” The implication here is that no helium stars exist at very
great distances corresponding to small magnitudes; but of course
such a view is untenable.

It probably is true that the group of helium stars at a distance
of some 540 light-years from our sun, and thus comparatively near

1912.] DEPTH OF THE MILKY WAY. 7

us, does cease after a certain faintness and distance has been
reached; but is equally certain that other clusters or clouds of
helium stars recur at greater distances, among the millions of small
white stars constituting the Milky Way. For as Herschel long ago
noticed the Galaxy is everywhere observed to traverse the circuit
of the heavens in a clustering stream; and our view of it from the
region of the sun is not essentially different from the view that
could be obtained from other points in this starry stratum. Add
to this consideration the fact of the well-known whiteness of the
small stars in the Milky Way, and we are authorized to conclude
that an indefinite number of clusters or groups of helium stars will
be found in the Milky Way, and thus such stars will certainly exist
at the greatest depths to which our giant telescopes can penetrate.

We must therefore be on our guard against the superficial view,
that because the helium stars near the sun fade away as the sixth
magnitude is approached, other groups of stars of this type do not
occur at greater distances. The typical whiteness of the millions
of small stars which make up the Milky Way, and the clustering
character of that magnificent collection of stars, alike forbid any
such inference.

Herschel had the correct view of the constitution of the Galaxy
a centuryago. Unfortunately his works have been very inaccessible,
and are so little used that many erroneous conceptions have been
given currency by more superficial investigators. It is impossible
to commend too highly the movement now on foot in England to
reissue the collected works of Sir William Herschel. In all that
pertains to the sidereal universe as a whole he is easily the greatest
of all modern astronomers, and will always remain unrivaled.

§4. EXPLANATION OF THE METHODS EMPLOYED By CAMPBELL FOR
FINDING THE AVERAGE DISTANCE OF THE GROUP OF
NakepD Eye HeEtium Stars.

This is essentially a combination of the line of sight motion as
found at Lick Observatory, with the proper motions resulting from
observations with the meridian circle, by many observers, as worked

8 SEE—DETERMINATION OF THE [January 5,

up by Boss of the Dudley Observatory, Albany, New York. By
the recent study of several thousand of the brighter stars included
in his Preliminary General Catalogue, Professor Boss has deduced
their proper motions with a high degree of accuracy. Campbell
found from 180 of these stars resembling our sun in spectral type
that their average cross proper motion in the sky, from the values
derived by Boss, was about 0.11 second of arc per annum, while
at the same time their average speed in the line of sight shown by
the spectrograph at Lick Observatory was 8.9 miles per second, or
two hundred and eighty million miles a year. Having the average
motion in the line of sight, in absolute units, and the average cross
proper motion in seconds of arc, it is easy to find how far away a
base line of 280 million miles would have to be to subtend an angle
of-o.11 of a second of arc. It turns out to be ninety-two light-years.

In this way it is possible to get the average distances of large.
groups of stars. Here are some of the results found by Campbell.

Average Radial Average Dis-

Type. No. | Axerage Yestly| Velocity in Miles | Average Rela | oncom Light
per Second. years.

“é a

B-B, 312 0.0078 3-9 0.0061 534
B,-B, 90 0.0182 4.2 0.0129 253
A 172 0.0368 6.5 0.0166 196
F 180 0.1075 8.9 0.0354 92
G 118 0.0748 9.9 0.0223 146
K 346 0.0516 104 0.0146 223
M 71 0.0384 10.6 0.0106 308

This table contains the most important results of the Campbell-
Boss method of obtaining average distances for large groups of
stars. It need scarcely be remarked that its significance can hardly
be overrated. But whilst the average values given are quite trust-
worthy, the method is of course inapplicable to the individual stars;
and if their distances are to be found recourse would have to be
had to the standard method of parallaxes, or to the spectroscopic
method in the case of visual binaries.

1912.] DEPTH OF THE MILKY WAY. 9

§5. SoME OF THE DISTANCES OF THE REMOTEST STARS AS
HERETOFORE CALCULATED BY ASTRONOMERS.

. Sir William Herschel, Phil. Trans., 1802, p. 498, “almost 2,000,000 light-
years.”
Sir John Herschel, “Outlines,” edition of 1860, p. 583, “upwards of
2,000 light-years.”
3. Guillemin, “The Heavens,” trans. by Lockyer, 1867, p. 433, “upwards of
20,000 light-years.” .
4. Bartlett, “ Spherical Astronomy,” 1874, p. 149, “ upwards of 2,437.5 light-
years.”
5. Newcomb, “ Popular Astronomy,” edition of 1878, p. 481, “about 14,000
light-years” (for the Herschel stars).
6. Clerke, “ System of the Stars,” 1890, p. 314, “less than 36,000 light-years.”
7
8.

coal

»

. Ranyard, “Old and New Astronomy,” 1892, p. 748, “less than 70,000 light-
years.”
. Young, “General Astronomy,” edition of 1904, p. 563, “10,000 to 20,000
light-years.”
9. Newcomb, “ The Stars,” 1908, p. 319, “ at least 3,000 light-years.”
10. See, “ Researches,” Vol. II., 1910, p. 638, “4,500,000 light-years.”

From this table it will be seen that there was a great falling off
in the distances following the epoch of Sir William Herschel; and
that the present writer was the first to recognize the fallacy of the
recent estimates of distance, and to restore the large values used
by that unrivaled astronomer one hundred and ten years ago. Here
we have a good illustration of the retrogradation of opinion in astron-
omy, under the cultivation of inferior genius. Sir John Herschel’s
preference for such small distances over the large values used by
his father is indeed remarkable and very regrettable. Evidently the
small value used by Newcomb is simply an echo of the reduction in
distance made by Sir John Herschel. The absurdity of these small
values—not over five times that of the helium stars of 4.14 magni-
tude investigated at Lick Observatory—ought to impress us with the
small importance to be attached to any opinion merely because it is
currently accepted. Thus we have a clear case of misleading tra-
dition transmitted from the second Herschel, and the amazing spec-
-tacle of the whole world using values about a thousand times too
small, for the greater part of a century, in times which were sup-
posed to be very enlightened! Strange indeed that the correct work

10 SEE—DETERMINATION OF THE [January 5,

of the great Sir William Herschel should have been neglected all
this time! Will it seem credible to future ages that such a remark-
able retrogradation of opinion could have occurred and persisted
during the nineteenth and twentieth centuries? If so, it must be
attributed to the narrowing effects of extreme specialization, which,
with the advance of science, has been difficult to avoid in our time,
and yet is utterly disastrous to the growth of true natural philosophy
as the study of nature in the widest sense.

§6. OTHER METHODS FOR CONFIRMING THE GREAT DEPTH
oF THE Mirxy Way.

(a) The girdle of helium stars about our sun, according to the
Lick determination, has a mean distance of 540 light-years, or a
mean diameter of 1,080 light-years. If this be one twentieth of the
average thickness of the Milky Way stratum, as one may infer from
the appearance of certain clusters in the constellation Sagittarius,
which are near enough to be studied intelligently, then we have
21,600 light-years for the average thickness of the Milky Way.

Now when we traverse the Milky Way from Centaurus to Cepheus,
over an arc of 180° in length, the central band appears to the naked
eye to have a width of 3° or 4°, as was long ago remarked also by
Herschel and Struve. This is an extension along the circle of the
Galaxy of about 60 times its thickness. If then the thickness be
21,600 light-years, the double depth of the stratum in both directions
becomes about two thirds of 21,600 X 60==864,000 light-years. And
if only the faint or distant telescopic stars be considered, the width
of their belt of distribution is narrower, and the depth would be
found several times greater yet. Wherefore it seems certain that
the profundity of the Milky Way, considerably exceeds a million
light-years, and may be several times that depth.

(b) Accordingly if we make the very moderate hypothesis that
the width of 3° or 4°, which was also noticed by Herschel and
Struve, represents chiefly the nearer portion of the Galaxy; and
that the remoter portion has a width not exceeding 1°, we should
conclude that the depth may be found by multiplying the thickness

1912.] DEPTH OF THE MILKY WAY. il

or apparent angular width of 21,600 light-years by the number of
degrees in the radius, 57.3. This gives for the depth 1,237,680 light-
years, and this value might be considerably increased by adjustments
in the data which are not improbable.

(c) In addition to these general arguments, founded on the prin-
ciples of geometry, we might introduce another based on actual
measurement. The Lick helium stars, of average brightness 4.14
mag., were found to have an average distance of 540 light-years. If
they were brought near enough to us to appear of Ist magnitude,
this distance would have to be divided by 4== 1 (2.512)*, and thus
we find for the first magnitude helium stars a distance of 135
light-years.

Now in calculating the plan of the construction of the heavens,
from the apparent breadth of the Milky Way, Herschel arrived at
the conclusion that the thickness of the stratum is about 80 times
greater than the diameter of the sphere including the first magnitude
stars represented by Sirius (Phil. Trans., 1785, p. 254). And if the
average distance of these stars be taken as 135 light-years, the mean
diameter of the shell. in which they are included will be 270 light-
years. This would give exactly 21,600 light-years for the thickness
of the stratum of the Milky Way, as before.

It is true that Herschel classed all first magnitude stars in one
group, and took no account of the fact that the helium stars are the
_ more remote and the more brilliant; yet regarding the Galaxy as a
stratum of stars chiefly of the helium type, which certainly is true
of all the more distant portions of that magnificent collection of
stars, we may consider the reasoning of this great astronomer as
still valid. And the argument in regard to the depth of the Milky
Way is thus the same as that given above under (a) and (0).

§7. THe EFrrects oF THE EXTINCTION oF LIGHT IN SPACE.

This problem has been treated with some detail in the 23d chap-
ter of my “ Researches,” Vol. II., 1910, but we shall here examine
the subject with greater care, especially as to the most probable
average value of the coefficient of extinction. The light was shown

12 - SEE—DETERMINATION OF THE bracane

by Struve to be defined by the equation

é =< (0.990651), (1)

where -r is the distance of the star, in units of A= \/ (2.512)”" and n
is the difference in magnitude. At very great distances nearly all
the light is cut off, and it therefore becomes a question of high
importance to determine as accurately as possible the proper value
for the coefficient of extinction.

Struve’s value, used in the above formula, seems to be too large,
and I have therefore calculated a new table, to show the effect of
decreasing the coefficient. In justification of this course it should
be recalled that Sir William Herschel ignored extinction entirely ;
but while this procedure obviously is defective, it is pretty clear,
from the aspects of the Milky Way as now made known by modern
research, that Struve’s coefficient is decidedly too large. The follow-
ing table shows the effects of varying the coefficient, upon stars 17
magnitudes fainter, corresponding to a distance 2,512 times larger,
where ¥— 12,511.

TABLE FOR VARYING COEFFICIENT OF EXTINCTION.

A = Coeff. of ye Fractional Part of Light Transmitted, in Spite of
Extinction. - Extinction.
I
.990651 A AE a UE ee on ’
0.99005 0,000,000,090,05 709 17514 000 000 (Struve’s value)
I
0.995 0,000,003, 4072
? sefupi 293 490
I
0.996 0.000,042, 371 arene
42,57 23490
I
Oo, a
997 0.000, §2923 1889.5
I
0.998 ferns
99 0.006,5567 162.51
0.999 0,081,091 : (See’s value)
12/332
I
0.9995 0.284,846
: nati 3.5107
1,00000 1,000,00 1.00000 ( Herschel’s value)

From the study of this table, we perceive that at the distance

1912.] - DEPTH OF THE MILKY WAY. 13

4 = 2,512, corresponding to an enfeeblement of 17 magnitudes, from
mere increase of distance alone, the extinction of light varies from
almost total loss, with Struve’s coefficient, to no loss whatever, on
Herschel’s tacit hypothesis of zero extinction. This latter view,
however, certainly is extreme, and probably all modern astronomers
agree that there is extinction of light due to cosmical dust in space.
A hazy background of dust is shown on the photographs of the
Milky Way and other portions of the sky, and proved to pervade
the solar system by the universal prevalence of meteors.

Since, however, both comets and nebulz are found to be extremely
tenuous bodies, and observed to transmit the light of stars with but
excessively slight enfeeblement, it is obvious that the general extinc-
tion will be much smaller still, but yet appreciable. I have therefore
adopted a coefficient of 0.999, about one hundredth larger than
Struve’s, as best harmonizing all known phenomena. This value,
it is true, is much nearer to Herschel’s than to Struve’s coefficient,
yet it admits an extinction of light which becomes appreciable at
great distances, while for moderate distances it is nearly insensible ;
and I believe this to correspond closely with all the known facts of
the sidereal universe.

An enfeeblement of one twelfth at a distance appropriate to
stars 17 magnitudes fainter, could easily be compensated for by a
corresponding abnormal brilliancy of the remotest stars, which on
several grounds seems to be highly probable. Thus our procedure
involves no extravagant assumptions as to the great brightness of the
most distant stars, or as to large extinction of light, while on the
other hand it avoids Herschel’s tacit hypothesis of zero extinction,
which certainly is unjustifiable.

*In an important paper read to the Bavarian Academy of Sciences, June
10, I91I, p. 4590, Professor H. von Seeliger likewise reaches the conclusion
that the absorption is very small, amounting to 0.34 of a magnitude at 7

times the distance of Sirius, which Seeliger takes for the border of the
sidereal system.

14 SEE—DETERMINATION OF THE [January 5,

§ 8. A GrapHicAL METHOD FoR DETERMINING THE DEPTH OF THE
GALAXY, BASED ON THE STUDY OF CLUSTERS.

1. Make a diagram of Io or 20 concentric circles, separated by
equal intervals, each corresponding to 100 million light-years. In
this scheme no clusters will be included within the central circle,
because the actual measurements for parallax have excluded this
possibility. But the various clusters of the N.G.C. may be plotted
within the outer circles, or beyond them all, according to the results
given by Herschel’s rule of brightness.

2. It is required therefore to locate the clusters, and to indicate
their apparent angular diameters by dots of appropriate size. Some
allowance must of course be made for the varying stages of develop-
ment of the different clusters, but if there is a decreasing angular
diameter with distance it may be held that the method of estimating
distance devised by Herschel is essentially valid, and in fact our
only method of fathoming these immense distances, and thus deter-
mining the depth or profundity of the Milky Way.

3. A careful attempt has been made to apply this method, using
the data of the N.G.C., and the results of the Crossley photographs
recently obtained at Lick Observatory. The results of this investi-
gation are shown to confirm the present theory.

§9. Finat Test oF THE INDEFINITE EXTENSION OF THE
Mitxy Way DESIRABLE.

This should be made by the graphical method just outlined, but
by means of more powerful instruments than any yet systematically
employed in this work. To feel satisfied that the universe extends
on indefinitely, we must have proof of additional clusters of stars
of smaller magnitude, and more compressed constitution, as from
the narrowing effect of perspective, at great distances. Probably we
shall not know what the sidereal heavens contain in the way of
vanishing clusters till the Milky Way is systematically photographed
for just such objects, and this very likely will require a long cam-
paign of photographic research with a large instrument. But as
many large reflectors are now coming into use, we may hope for it

A a alae oe

1912] DEPTH OF THE MILKY WAY. 15

before many years elapse. This would be completing on a modern
scale the sidereal soundings left somewhat incomplete by the sys-
tematic explorations of the Herschels.

In a private letter, written in response to my recent inquiry re-
garding the power of the 60-inch reflector of the Solar Observatory
at Mt. Wilson, Professor W. S. Adams, the Acting Director, informs
me that this fine instrument probably will show visually stars as faint
as 18th magnitude. He points out, however, that the magnitude
scale is not well defined for such faint objects, and that very few
astronomers have enough experience to fix it at the present time.

Adams also informs me that from a photograph of the region
of the northern celestial pole of four hours’ duration, Professor
E. C. Pickering has derived a value of 21.0 magnitude for the faint-
est stars, by the system of photographic magnitudes in use at the
Harvard College Observatory. Obviously there is some uncertainty
in this value, but it probably is not extreme.

In answer to an inquiry as to the possibility of getting still
fainter stars by prolonging the exposure, Professor Adams assures
me that it can be easily done, the only limit being the brightness of
the background of the sky; but that with the clear air of Mt. Wilson
this would not be reached till the exposure had extended over many
hours. He adds that it takes about three times the exposure to

- obtain a star one magnitude fainter. From the data here supplied

it seems certain that stars as faint as 21.0 magnitude may be photo-
graphed at Mt. Wilson, with the 60-inch reflector, and that by pro-
longing the exposure several additional hours or through whole
nights, stars of 22.0 magnitude probably could be obtained.

It is therefore well established that stars 17 magnitudes fainter
than the 225 helium stars, with average magnitude of 4.14, recently
investigated at Lick Observatory, may now be photographed with
more than one instrument; and the value of A==2,512 used in our
calculations is amply justified. In fact it seems probable that instead
of 2,512 as our distance multiplier for stars 17 magnitudes fainter,
we might have used the larger value 3,981, corresponding to stars
18 magnitudes fainter than our 225 helium stars with average magni-

16 SEE—DETERMINATION OF THE [January 5,

tude of 4.14. This would almost have doubled the calculated depths
of the Milky Way throughout the foregoing discussion, and given
us over two million light-years, exceeding the profundity originally
concluded by Herschel in 1802. In the Phil. Trans. for 1800, pp.
83-4, Herschel finds by a different process that a cluster of 5,000
stars visible in his 40-foot telescope is distant 11,765,475,948,678,-
678,679 miles, “a number which exceeds the distance of the nearest
fixed star at least three hundred thousand times.” With modern
data this proves to be 460,355 times the distance of Alpha Centauri,
or 2,001,120 light-years.

§ 10. SUMMARY OF THE CHIEF RESULTS OF THE DETERMINATION
OF THE DEPTH OF THE MILKy Way.

From the several independent and mutually confirmatory argu-
ments here adduced it follows that the depth of the Milky Way
decidedly exceeds a million light-years, and substantially accords
with the profundity concluded by the illustrious Herschel one hun-
dred and ten years ago.

1. Herschel concluded that with his forty-foot reflector he per-
ceived stars whose light had occupied two million years in reaching
the earth; and he justly remarked that he had seen further into
space than any human being before him. The visual power or light
grasp of Herschel’s telescope is somewhat surpassed by modern
instruments; and much additional power is given to the modern
instrument by the use of photography.

2. But if, on the one hand, the modern instruments surpass ~
Herschel’s in power, there is on the other some increased need for
this in that we now attempt to take account of the extinction of light
by cosmical dust in space. Neglecting this loss of light, Herschel
may have slightly overestimated the distances. to which his telescope
could penetrate, but the error was scarcely of sensible importance.

3. With our greatest modern instruments and the use of pho- |
tography it is certain that we can observe stars? at a distance of over

*In Astron Nachr., No. 4,536, Nov. 13, 1911, Professor F. W. Very con-
cludes that the White Nebule may be galaxies at a distance of a million light-

1912.] DEPTH OF THE MILKY WAY. re yf

two million light-years, and it is very probable that we can penetrate
to a depth of about five million light-years. A modern silver-on-
glass reflector of twelve feet aperture would give about six times
as much light as the 60-inch reflector at Pasadena, and with this
gain of two magnitudes in light power it is probable that we could
penetrate into space at least twice this distance (theoretically 2.512
is the factor) or to a depth from which the light would take ten
million years to reach the earth.

At the present time a 12-foot reflector is possible, and the depth
to which we can penetrate is simply a question of telescopic power,
which can be vastly but not indefinitely increased. And this is true
in spite of the extinction of light by cosmical dust in space. There
is a limit to the distance to which any given telescope can penetrate,
but it increases steadily with the aperture, since the only question
involved is one of enormous light grasp.

It is to be hoped that a telescope of not less than 12 feet aperture
may be built for use on the Milky Way. With such a giant instru-
ment discoveries of the highest order might confidently be antici-
pated. A modern expansion of our views of the sidereal universe
analogous to that which marked the great epoch of Herschel would
follow, with the most beneficial effects upon every branch of astro-
nomical science. Recent developments in many lines show that the
epoch of great discoveries has not passed, but is in fact just begin-
ning: and the estimates here laid down, as to the depth and magnifi-
cent extent of the Milky Way, convey to us but a dim outline of the
discoveries which await the builders of the giant telescopes of the
future. In this great advance America may naturally be expected
to take the leading part. |

STARLIGHT, ON LouTRE,

MontcoMery City, Missouri,
November 4, I9QI1I.

years. The view adopted in my “Researches,” Vol. II., 1910, however, is
much more probable, since it gives continuity to the various types of bodies
observed to constitute the sidereal universe. Note added Dec. 16, rort.

PROC, AMER. PHIL. SOC., LI. 203 B, PRINTED MARCH 16, Igi2.

CONTRABAND OF WAR.

By Joun Bassett Moore.
(Read February 2, 1912.)

The word contraband (Italian, contrabbando; Spanish, contra-
-bando) signifies something prohibited—a trade carried on, or an
article imported or dealt in, in violation of some inhibition. Thus,
smuggled goods are often spoken of as contraband.

The term contraband of war denotes commodities which it is
unlawful to carry to the country, or to the military or naval forces,
of a belligerent. By a “belligerent” is meant one of the parties to
a war. Often the word “enemy” is used instead of “ belligerent.”
Writers constantly speak of an “enemy” or ‘“‘ enemy’s” country, an
“enemy” ship, or “enemy” goods, meaning thereby merely that
the country, or the ship, or the merchandise, is that of a party to a
war, that is to say, of a belligerent government or of one of its
citizens. Sometimes the word “hostile” is used instead of “enemy.”

When war breaks out between two countries, the carrying on of
trade by the citizens of the one country with those of the other
becomes unlawful; but the same general interruption does not
extend to the commercial intercourse between the parties to the war
and third parties, called neutrals. The intercourse between the bel-
ligerents and neutrals continues. This continuance is regarded not
as a favor granted to the belligerents but as a right belonging to
neutrals. As between the belligerents, neither is required to grant
to the other any privilege in respect of trade. On the contrary,
they endeavor to subdue each other by attacks upon persons and
upon property. This is their acknowledged right. But the rest of
the world, composed of neutral powers, having no part in the quarrel
and perhaps little concern in the issue, also has its rights. Its
interests and convenience are not to be wholly subordinated and
sacrificed to the exigencies of the one or the other of the belligerents,

18

1912.] MOORE—CONTRABAND OF WAR. 19

each of whom, while desirous to preserve its own trade, would of
course be glad to cut off altogether that of its enemy; and it is there-
fore acknowledged to be the right of neutrals to continue their com-
merce with the belligerents, subject only to the restrictions imposed
by the law of contraband and of blockade.

In proceeding to the discussion of the particular subject of con-
traband, it is proper to advert to the confusion which seems so
widely to prevail as to the legal position of the prohibited trade.
The statement is frequently made that the trade in contraband of
war is lawful, even though this broad affirmation be immediately
followed by the admission that the trade is carried on subject to
the risk of capture and confiscation of the goods, and of the deten-
tion, loss of freight and perhaps even the confiscation of the ship.
_ This admission should alone suffice to put us on our guard. Mer-
chandise is not confiscated, voyages are not broken up, ships are not
condemned, for acts that are innocent; these severe and destructive
inflictions are penalties imposed for acts that are unlawful. The
confusion so often exhibited on this subject is due to the neglect of
certain simple but fundamental truths, namely, that, in the inter-
national sphere, and particularly in matters of neutrality, the cri-
terion of lawfulness is primarily furnished by international law and
not by municipal law, lawfulness according to the latter by no means
implying lawfulness according to the former; that, between the acts
which neutral governments and their citizens are forbidden to com-
mit and the acts which neutral governments are obliged to prevent,
there is a wide distinction; that, by international law, acts that are
unneutral in the sense of being unlawful are, from the point of view
of their prevention and punishment, divided into two classes, (1)
those which neutral governments are bound to prevent and punish,
and (2) those which neutral governments are not bound to prevent
and punish; that municipal law is supposed to prohibit, not all the
unneutral acts which international law forbids, but only that part
of them which neutral governments are bound to repress, the pre-
vention and punishment of the rest being left to the belligerents as
the parties primarily interested. Obviously, the determination of
the question whether an act is lawful or unlawful depends not upon

20 MOORE—CONTRABAND OF WAR. [February 2,

the circumstance that the right or duty to punish it is committed to
one agency or another, but upon the fact that it is or is not punish-
able. The proof that it is unlawful is found in the fact that its com-
mission is penalized. All acts for the commission of which inter-
national law prescribes a penalty are in the sense of that law unlaw-
ful. That there are various acts of this kind, such as the supplying
of contraband of war to a belligerent, which neutrals are not obliged
to prohibit and punish by their municipal law, merely signifies
that the interests of neutrals have not been regarded as negligible,
and that there are limits to the burdens which they have been
required to assume and to the exertions which they are required to
make. Should a neutral government itself supply contraband of
war to a belligerent it would clearly depart from its position of neu-
trality. The private citizen undertakes the business at his own risk,
and against this risk his government can not assure him protection
without making itself a party to his unneutral act.
These propositions are abundantly established by authority.
Maritime states, says Heffter, have adopted,

in a common and reciprocal interest, the rule that belligerents have the right
to restrict the freedom of neutral commerce so far as concerns contraband of

war, and to punish violations of the law in that regard. ... This right has
never been seriously denied to belligerents.*

Says Kent:

The principal restriction which the law of nations imposes on the trade
of neutrals is the prohibition to furnish the belligerent parties with warlike
stores and other articles which are directly auxiliary to warlike purposes.*

Says Woolsey :

If the neutral [government] should send powder or balls, cannon or
rifles, this would be a direct encouragement of the war, and so a departure
from the neutral position... . Now, the same wrong is committed when a
private trader, without the privity of his government, furnishes the means
of war to either of the warring parties. It may be made a question whether
such conduct on the part of the private citizen ought not to be prevented
by his government, even as enlistments for foreign armies on neutral soil
are made penal. But it is difficult for a government to watch narrowly the
operations of trade, and it is annoying for the innocent trader. Moreover,

* Heffter, “ Droit Int.,” Bergson’s ed., by Geffcken, 1883, p. 384.
* Kent, “Int. Law,” 2d ed., by Abdy, 330.

1912.] MOORE—CONTRABAND OF WAR. 21

the neutral ought not to be subjected by the quarrels of others to additional
care and expense. Hence by the practice of nations he is passive in regard
to violations of the rules concerning contraband, blockade, and the like, and
leaves the police of the sea and the punishing or reprisal power in the hands
of those who are most interested, the limits being fixed for the punishment
by common usage or law. . . . It is admitted that the act of carrying to the
enemy articles directly.useful in war is a wrong, for which the injured party
may punish the neutral taken in the act.*

Says Manning:

The right of belligerents to prevent neutrals from carrying to an enemy
articles that may serve him in the direct prosecution of his hostile purposes
has been acknowledged by all authorities, and is obvious to plain reason.
. : . The nonrecognition of this right . . . would place it in the power of
neutrals to interfere directly in the issue of wars—those who, by definition,
are not parties in the contest thus receiving a power to injure a belligerent,
which even if direct enemies they would not possess.‘

Says Creasy:

A belligerent has by international law a right to seize at sea, and to appro-
priate or destroy, articles, to whomsoever they may belong, which are calcu-
lated to aid the belligerent’s enemy in the war, and which are being conveyed
by sea to that enemy’s territory.®

Says Holland:

The neutral power is under no obligation to prevent its subjects from
engaging in the running of blockades, in shipping or carrying contraband, or
in carrying troops or dispatches from one of the belligerents; but, on the
other hand, neutral subjects so engaged can expect no protection from their
own government against such customary penalties as may be imposed upon
their conduct by the belligerent who is aggrieved by it.

The fact that the supplying of contraband of war is considered

’ as a participation in the hostilities is shown not only by the authority

of writers, but also by numerous state papers.
Washington, in his famous neutrality proclamation of April 22,
1793, countersigned by Jefferson, as Secretary of State, announced

that whosoever of the citizens of the United States shall render himself
liable to punishment or forfeiture under the law of nations, by committing,
aiding, or abetting hostilities against any of the said powers, or by carrying

* Woolsey, “Int. Law,” §§ 178, 179.

*Manning’s “ Law of Nations,” Amos’s edition, 352.

* Creasy, “ First Platform of Int. Law,” 604.

* Holland, “ Studies in Int. Law,” 124-125. See, also, Moore, Digest of
Int. Law, VII., 972-973.

22 MOORE—CONTRABAND OF WAR. [February 2,

to any of them those articles which are deemed contraband by the modern
usage of nations, will not receive the protection of the United States against
such punishment or forfeiture.”

Jefferson, in his subsequent note to the British minister, May
15, 1793, observes that in the case of contraband the law of nations
is satisfied with the “external penalty”? pronouncecd in the Presi-
dent’s proclamation.®

President Grant, in the proclamation issued by him August 22,
1870, during the Franco-German war, declares, in the most precise
terms:

While all persons may lawfully, and without restriction, by reason of
the aforesaid state of war, manufacture and sell within the United States
arms and munitions of war, and other articles ordinarily known as “ contra-
band of war,” yet they can not carry such articles upon the high seas for the
use or service of either belligerent, . . . without incurring the risk of hostile
capture and the penalties denounced by the law of nations in that behalf.
And I do hereby give notice that all citizens of the United States, and others
who may claim the protection of this Government who may misconduct them-
selves in the premises, will do so at their peril, and that they can in no wise
obtain any protection from the Government of the United States against the
consequences of their misconduct.’

In the neutrality proclamations, issued during the war between
the United States and Spain, the following provisions are found, in
which the furnishing of arms and munitions of war to either party
to the conflict is expressly treated as an act of unneutrality.

The Brazilian government, by a circular of April 29, 1898, de-
clared to be “absolutely prohibited” the “exportation of material
of war from the ports of Brazil to those of either of the belligerent
powers, under the Brazilian flag or that of any other nation.’’°

The King of Denmark issued April 29, 1898, a proclamation
prohibiting Danish subjects “to transport contraband of war for
any of the belligerent powers.”1!

Great Britain’s proclamation of April 23, 1898, warned British
subjects against doing any act “in derogation of their duty as sub-

"Am. State Papers, For. Rel., I., 140.

* Moore, “ Digest of Int. Law,” VII., 955.

° Moore, “ Digest of Int. Law,” VII., 751.

*® Proclamations and Decrees during the War with Spain, 13.
-™ Proclamations, etc., 22.

‘ _ = , eee = aia : a ta ee ie fealiia i . pinta
re stapes abe ls ke ok ee Se a Si te es eee er oe ork) Se eg Sa ee aie es 2

1912.] MOORE—CONTRABAND OF WAR. 23

jects of a neutral power,” or “in violation or contravention of the
law of nations,” among which was enumerated the carrying of
“ arms, ammunition, military stores or materials”; and declared that
“all persons so offending, together with their ships and goods, will
rightfully incur and be justly liable to hostile capture, and to the
penalties denounced by the law of nations.”**

The governor of Curacao, acting under instructions of the min-
ister of the colonies of the Netherlands, issued a decree prohibiting
“the exportation of arms, ammunition, or other war materials to
the belligerents.”**

Portugal, while stating, in Article IV. of her neutrality decree
of April 29, 1898, that “all articles of lawful commerce”’ belonging
to subjects of the belligerent powers might be carried under the Por-
tuguese flag, and that such articles belonging to Portuguese subjects
might be carried under the flag of either belligerent, yet declared:
“ Articles that may be considered as contraband of war are expressly
excluded from the provisions of this article.’’**

Were further proof needed of the unneutral and noxious char-
acter of contraband trade, it might be found in the doctrine of infec-
tion, under which innocent cargo is condemned when associated with
contraband merchandise of the same proprietor, and the transporta-
tion penalized by loss of freight and expenses, and, under various
circumstances, by confiscation of the ship.

Bearing in mind that the subject which we are considering is
one of universal interest, directly affecting the world’s trade and
involving the imposition of heavy pecuniary penalties upon indi-
viduals, one ventures little in saying that among present-day ques-
tions of maritime law, touching intercourse between belligerents
and neutrals, the most important is that of contraband. This may
be affirmed in spite of the fact that, partly because of the lack of
great maritime wars in recent times, its gravity may not at the
moment be generally or popularly appreciated. The question of

*Td., 61. See, also, the proclamation of the taotai of Shanghai, id., 20,
and the instructions of the Haitian Government, id., 39.

24 MOORE—CONTRABAND OF WAR. [February 2,

blockade, although it once assumed immense proportions, to a great
extent lost its importance when the principle was established that
blockades in order to be legally valid must be effective, that is to
say, maintained by a force sufficient to prevent access to the block-
aded port or at least to render such access dangerous. Since the
definite and universal acceptance of this principle, by which neutral
commerce was relieved of the hazards to which it was formerly
exposed from measures generically designated by the evil name of
“paper blockades,” the conflict between belligerent right and neutral
right has been carried on chiefly in the domain of contraband, to
which it may be said that all the legal uncertainties that formerly
attended the subject of blockade have been transferred, with many
additions and aggravations.

In order to demonstrate the paramount importance of the ques-
tion of contraband, it is unnecessary to do more than point out that,
if the claim of capture on this ground be not properly limited, the
two great safeguards of neutral rights established after generations
of conflict become utterly worthless. I refer to the rule that free
ships make free goods and the rule that blockades must be effect-
ively maintained.

First, let us consider the rule that free ships make free goods.
By what has been called the common law of the sea, the goods of an
enemy were subject to capture and confiscation without regard to
the character of the ship in which they were borne. The enforce-
ment of this rule necessarily involved the capture and bringing in
of neutral vessels whose cargoes were alleged to be composed even
in small part of the goods of a belligerent. The breaking up of the
voyages of neutral vessels in this manner, with all the resultant
losses, involved so much hardship to carriers in no way concerned
in the conflict that, as early as the seventeenth century, there sprang
up an agitation for the exemption of neutral vessels from molesta-

tion for carrying goods which happened to belong to a citizen of a

belligerent country. Such an exemption gradually came to be em-
bodied in treaties; and. when on February 28, 1780, the Empress
Catherine of Russia issued her celebrated manifesto, which formed
the basis of the Armed Neutrality, she announced this principle:

SC RE 8 oi Soe

1912.] MOORE—CONTRABAND OF WAR. 25

2. Goods belonging to the subjects of the said nations at war are, with
the exception of contraband articles, free [from capture] on board neutral
vessels.

This definite enunciation of the rule that free ships make free
goods was incorporated in the Declaration of Paris of 1856 in the
following term:

2. The neutral flag covers the enemy’s goods, with the exception of con-
traband of war.

The United States, Spain and Mexico (Mexico acting under the
direct influence of the United States) did not adhere to the Declara-
tion of Paris, because it undertook to abolish privateering; but the
United States and Spain expressly accepted the rule that free ships
make free goods, and this was proclaimed by the United States in
1898 as a principle of international law and was so accepted by
Spain in the war between the two countries in that year. More-
over, Spain has since adhered to the Declaration of Paris in its
entirety. But, note the exception to the rule. Enemy’s goods are
exempt from capture under the neutral flag, “ with the exception of
contraband of war.” In other words, the operation of this rule and
the protection intended to be afforded by it are wholly dependent
upon the definition of contraband. . Make the list of contraband
long enough, and the rule becomes a farce.

Secondly, take the present law of blockade. At one time ficti-
tious blockades were the bane of neutral commerce. In the twelve
years that followed the breach of the Peace of Amiens—the days
of the so-called Napoleonic wars—millions upon millions of neutral
property were unlawfully confiscated for the alleged violation of or
attempt to violate blockades which existed only on paper.

The declaration of the Empress Catherine above referred to con-
tained the following rule:

4. To determine what constitutes a blockaded port, this denomination is
confined to those the entrance into which is manifestly rendered dangerous in

consequence of the dispositions made by the attacking power with ships
stationed sufficiently near.

The Declaration of Paris of 1856 provided:

4. Blockades, in order to be binding, must be effective; that is to say,
maintained by a force sufficient really to prevent access to the coast of the
enemy.

26 MOORE—CONTRABAND OF WAR. [February 2,

The world accepted this principle with joyful unanimity. We
may, however, pertinently inquire, What is it worth, if the definition
of contraband be not properly limited? The answer is not difficult.
If the definition of contraband be so extended as to embrace in some
form, positively or conditionally, practically all articles of com-
merce, the question of blockade ceases to be important. The
security intended to be afforded to the neutral, by requiring the bel-
ligerent to make his blockade effective, becomes a mockery; the
belligerent is practically relieved of the burden of maintaining block-
ades, for, instead of keeping his ships at certain points and hamper-
ing his offensive use of them, he can roam the seas at will and seize
all articles destined to any belligerent port under the claim of
contraband.

Let us consider the significance of the question of contraband in
yet another relation. It is creditable to our humanity that proposals
having a benevolent sound usually evoke a prompt and generous
response, but it sometimes happens that the substance upon exami-
nation turns out to be less benevolent than the sound. We have
lately heard much of the proposed immunity of private property at
sea from capture. The United States is said to have advocated
such a measure at both Hague Conferences. What has happened
is actually this: Some of our earlier statesmen, notably Franklin,
did in reality advocate a very wide exemption not only of property
but also of persons, on land as well as on the sea, from the opera-
tions of war; and their example was followed by some of their suc-
cessors. In 1857 the government of the United States, being em-
barrassed by its refusal to accede to the Declaration of Paris on
account of the clause abolishing privateering, offered to adhere on
condition that the powers go farther and exempt private property
at sea from capture; but this offer was expressly subject to the
exceptions of contraband and blockade. In 1907 Mr. Choate, on
behalf of the Delegation of the United States, submitted to the
second Peace Conferences at The Hague the following resolution:

The private property of all citizens or subjects of the signatory powers,

with the exception of contraband of war, shall be exempt from capture or
seizure on the sea by the armed vessels or by the military forces of any of

iad MOORE—CONTRABAND OF WAR. 27

the said signatory powers. But nothing herein contained shall extend exemp-
tion from seizure to vessels and their cargoes which may attempt to enter a
port blockaded by the naval forces of any of the said powers.

What therefore the United States since 1850 has proposed is,
not that private property at sea shall be exempt from capture, but
that it shall be so exempt, subject to the exceptions of contraband
and blockade. The proposal, as thus qualified, no doubt had a sub-
stantial character in 1857, since the government of the United States
at that day still recalled the limitations upon contraband for which
it had traditionally contended. The case was the same when, by
the treaty of commerce between the United States and Italy of
February 26, 1871, it was actually agreed (Article XII.) that, in
the event of war between the two countries, the private property of
their citizens and subjects should be exempt from capture on the
high seas or elsewhere, subject to the exceptions of contraband and
blockade; for the treaty then proceeded (Article XV.) precisely to
limit the scope of contraband, confining it to arms and munitions of
war, and declaring that those articles “and no others” should be
comprehended under that denomination.1*> But at The Hague, in
1907, the importance of the exceptions was greatly enhanced by the
separate presentation on the part of the United States of an ex-
tremely vague and sweeping proposition on contraband of war, in
which provisions appear, no doubt for the first time in American
diplomacy, in the category of absolute as well as in that of condi-
tional contraband.** Taking into consideration the objects of war,
opinions will necessarily differ as to the merits and value of a pro-
posal to exempt enemy ships and enemy goods as such from capture,
while leaving in force the law of blockade and of contraband, with-
out any precise definition or limitation of the latter. Such a pro-
posal holds out no advantage to neutrals, but offers to belligerents
the favor of placing them on the same footing as neutrals commer-
cially. And even the extent of this favor would depend upon the
definition and scope of contraband. Is there not, indeed, a certain
incongruity in exempting from capture such an obviously important

* Note A, infra, p. 42.
* Note B, infra, p. 43.

28 MOORE—CONTRABAND OF WAR. [February 2,

auxiliary to military and naval operations as the ships of an enemy,
while subjecting to seizure and confiscation the agricultural products
of a neutral?

The question of contraband may now be considered in its his-
torical and experimental aspects. It is unnecessary for this pur-
pose to enter minutely into the origin of the subject. It suffices to
say that in the sixteenth and the early part of the seventeenth cen-
tury, the law of contraband and of blockade both being unsettled,
belligerents often assumed the right to capture all neutral ships and
merchandise bound to an enemy’s port, thus in effect denying the
existence of any right of neutral trade as opposed to belligerent
exigencies. The neutral, if he differed with the belligerent as to
the necessity of the inhibition or the propriety of the capture, would
resort to reprisals. The conflicts that resulted and the constant in-
terruptions of trade, rendering it impossible to carry on international
commerce without-risk of ruinous losses, induced governments in
the latter half of the seventeenth century to concert a decided change
in practice.

Grotius, in his De Jure Belli ac Pacis (1625), perhaps recording
the transition in thought, divided articles, with reference to the. ques-
tion of contraband, into three classes, (1) those that were of use
only in war, (2) those that were of no use in war, but served only
for pleasure, and (3) those that were useful both in war and in
peace (1. e., things of double use, ancipitis usus), as money, pro-
visions, ships and their appurtenances. The first he held to be pro-
hibited; the second, to be free. As to the third, the circumstances
of the war must, he said, be considered; and if the belligerent could
not protect himself unless he intercepted it, necessity would give
him the right to intercept it, “ but under the obligation of restitution,
except there be cause to the contrary.” As an example of “cause
to the contrary,” he instanced the case of the supplying of a besieged
town or a blockaded port, when a surrender or a peace was daily
expected.*”

By a treaty between France and the Hanse Towns, signed at
Paris May 10, 1655, contraband was confined to munitions of war,

# Grotius, “De Jure Belli ac Pacis,” Lib. IIL, c. I., v, 1-3.

1912.] MOORE—CONTRABAND OF WAR. 29

and it was expressly declared that wheat and grains of all sorts,
vegetables and other things serving to sustain life, might be carried
to the enemy, provided that they were not transported to towns and
places actually under attack and were taken voluntarily and not
under compulsion of the enemy, in which case they might be seized
and retained on paying their just value.

November 7, 1659, there was concluded between France and
Spain the famous Treaty of the Pyrenees: Articles XII. and XIII.
dealt with the subject of contraband, including therein only such
things as were distinctly of warlike character, and excluding there-
from wheat, corn and other grains, pulse, oils, wines, salt, and gen-
erally all things useful to sustain life, unless destined to towns and
places “ besieged, blocked up, or surrounded.”**

The Dutch agreed to these categories in 1662, and were soon
followed by Great Britain, in treaties made with the United Prov-
inces and Spain in 1667, and with France in 1677.

In 1713 came the Peace of Utrecht. By the treaties concluded
between France and the other powers on that occasion, the subject
of contraband was definitely regulated on the most advanced lines.
For example, in the treaty of commerce with Great Britain signed
April 11 (1713), while contraband was limited to certain enumerated
articles of warlike character, the non-contraband list, which em-
braced wheat, barley and other grains, pulse, tobacco, spices, salt and
smoked fish, cheese and butter, beer, oils, wines, sugars, salt, “ and
in general all provisions which serve for the nourishment of man-
kind and the sustenance of life,” was extended to many other arti-
cles, all of which were declared to be free except when transported
to places “ besieged, blocked up round about, or invested.’’®

Similar stipulations were incorporated in the British-French
commercial treaty signed at Versailles September 26, 1786.

In the manifesto of the Empress Catherine of Russia of 1780,
which formed, as heretofore stated, the basis of the Armed Neu-
trality, it was declared that her Imperial Majesty adhered to Articles

"X. and XI. of her treaty of commerce with Great Britain, and ex-

* Note C, infra, p. 43.
* Note D, infra, p. 44.

30 MOORE—CONTRABAND OF WAR. [February 2,

tended their provisions to all the nations at war. This treaty was
concluded June 20, 1766. With the “single exception” of certain
enumerated articles, which were “ accounted ammunition or military
stores,” it was agreed that the subjects of the one party might trans-
port “all sorts of commodities” to places belonging to the enemy of
the other that were not “ actually blocked up, or besieged, as well by
sea as by land.’’°

Such was the condition of things when the wars growing out of
the French Revolution began. The enthusiastic devotion of the
French on the one hand to the principles which they had espoused,
and the frenzied resistance of monarchical governments on the other
hand to what they regarded as an anarchical propagandism threat-
ening thrones everywhere by force of example if not by force of
arms, imparted to these struggles a peculiarly intense and lawless
character. Three months after the war between France and Great
Britain was declared, the National Convention, May 9, 1793, there
being a scarcity of food in France, adopted a decree authorizing the
seizure of vessels laden wholly or in part with provisions, which, if
found to be neutral property, were to be paid for at the price which
they would have fetched at the port of destination, together with an
allowance for freight and for the vessel’s detention. This was a
claim not of contraband but of preemption. Nevertheless, the
United States protested against it, and it was not uniformly enforced
against American vessels. Great Britain on the other hand, wishing
not only to supply her own wants but to increase the pressure on
France, advanced a claim compounded of contraband and preemp-
tion. By an order in council of June 8, 1793, which was commu-
nicated to the Admiralty on the 28th of the same month, the com-
manders of British ships of war and privateers were authorized to
seize all vessels laden wholly or in part with corn (1. e., cereals gen-
erally, as wheat, barley, rye and oats, but more especially wheat),
flour, or meal, bound to any port in France, or any port occupied by
the armies of France, in order that such provisions might be pur- |
chased on behalf of the government, with an allowance to the vessel
for freight, or in order that the master might be required to give

* Note E, infra, p. 44.

4 E
4
a

1912.] MOORE—CONTRABAND OF WAR. 31

security to dispose of such cargo in a country in amity with Great
Britain. The British government assumed to justify this order on
the ground that by the law of nations, as laid down by the most
modern writers, and particularly by Vattel, all provisions were to
be considered as contraband, and as such liable to confiscation, where
the depriving an enemy. of them was one of the means intended to
be employed for reducing him to reasonable terms of peace; and
that the actual situation of France rendered this reasoning pecu-
liarly applicable, not only because the scarcity there was caused by
the unusual measure of arming almost the whole laboring class of
the nation, but also because the trade was to be regarded, not as a
mercantile speculation of individuals, but as an immediate operation
of the very persons who had declared war and were carrying it on
against Great Britain. On these considerations, said the British
government, the powers at war would have been perfectly justifiable
if they had considered all provisions as contraband and had directed
them as such to be brought in for confiscation, but they had only
sought to prevent the French from being supplied with corn, omit-
ting all mention of other provisions, and even in respect of corn, -
instead of confiscating the cargoes, had secured to the proprietors,
if neutral, a full indemnity for any loss they might sustain.

The United States on the other hand declared that the position
that provisions were contraband in the case where the depriving an
enemy of them was one of the means intended to be employed for
reducing him to reasonable terms of peace, or in any case but that
of a place actually blockaded, was entirely new; that reason and
usage had established that, when two nations went to war, those
who chose to live in peace retained their natural right to pursue their
agriculture, manufactures, and other ordinary vocations, and to
carry the produce of their industry, for exchange, to all nations,
belligerent or neutral, except that they must not furnish implements
of war to the belligerents or send anything to a blockaded place.
Implements of war destined to a belligerent were treated as con-
traband, and were subject to seizure and confiscation. Corn, flour,
and meal were not, said the United States, of the class of contra-
band, and consequently remained articles of free commerce. The

32 MOORE—CONTRABAND OF WAR. [February 2,

state of ar between Great Britain and France furnished neither
belligerent with the right to interrupt the agriculture of the United
States, or the peaceable exchange of its produce with all nations.
Such an act of interference tended directly to draw the United
States from the state of peace in which they wished to remain. If
the United States permitted corn to be sent to Great Britain and her
friends, and refused it to France, such an act of partiality might
lead to war with the latter power. If they withheld supplies of
provisions from France, they should in like manner be bound to
withhold them from her enemies also, and thus to close to them-
selves all the ports of Europe where corn was in demand, or else
make themselves a party to the war. This was a dilemma into
which no pretext for forcing the United States could be found.
Great Britain might, indeed, feel the desire of starving an enemy
nation ; but she could have no right to do it at the cost of the United
States, or to make the latter the instrument of it.*!

Such was the position maintained by the United States; and
when John Jay was sent on a special mission to England in 1794
to negotiate a settlement of differences, the first topic discussed in
his instructions was that of the vexations inflicted on commerce
under orders in council. By the treaty which he signed on Novem-
ber 19, 1794, a precise enumeration was made (Article XVIII.) of
the things which were admitted to be contraband, and it was stipu-
lated that when cases arose in which “ provisions and other articles
not generally contraband” might, according to the existing law of
nations, be regarded as becoming such, they should not, even though
seized on that ground, be confiscated, but should be paid for at their
full value, together with a reasonable mercantile profit, freight and
demurrage.” Nor was this all. A mixed commission was estab-
lished under the treaty (Article VII.) to adjudicate complaints on
account of seizures. The British authorities, where they made com-
pensation for cargoes of provisions, adopted as a basis the invoice
price plus a mercantile profit of ten per cent. The claimants con-
tended that this was inadequate. The commission allowed the net

* For a full narrative of this incident and the text of the orders in council,

see Moore’s “ History and Digest of International Arbitrations,” I., 299-306.
** Note F, infra, p. 45.

1912.] MOORE—CONTRABAND OF WAR. 33

value of the cargo at its port of destination at the time at which it
probably would have arrived there, had it not been seized. The
awards of the commission in the case of captured vessels laden with
provisions and bound to France are estimated to have amounted to
£720,000, or approximately $3,500,000.”

The position successfully maintained by the United States in
the case of Great Britain was altogether in accord with that which
was reciprocally acted upon in its relations with other powers. The
commercial treaty with France of 1778—the first treaty concluded
by the United States—substantially incorporated the Utrecht clause
on the subject of contraband,” as also did the later convention of
1800. A similar stipulation may be found in the treaty with Sweden
of 1783, and in that with Spain of 1795. In the treaties of 1785 and
1799 the United States and Prussia went so far as to agree that
even arms and munitions of war, when seized as contraband, should
not be confiscated, but that the captor should pay for them if he
converted them to his own use, or pay damages if he merely detained
them.”® In the treaty between the United States and Colombia of
1824 a clause on contraband was inserted which furnished the model
followed by the United States with practical uniformity in its sub-
sequent treaties.** It is substantially reproduced in the contraband
articles of the treaty with Italy of 1871. It may also be found in
identical or nearly identical terms in the treaties between the United
States and the following powers: Central America, 1825; Brazil,
1828; Mexico, 1831; Chile, 1832; Peru-Bolivia, 1836; Venezuela,
1836 and 1860; Ecuador, 1839; New Granada, 1846; Salvador, 1850
and 1870; Peru, 1851 and 1870; Two Sicilies, 1855; Bolivia, 1858;
Haiti, 1864; Dominican Republic, 1867.

During the war with Spain, in 1898, the subject of contraband
was dealt with by the United States in General Orders No. 492,
which specified certain articles as “absolutely contraband” and
others as “conditionally contraband.” The former included arms

* Moore, “ History and Digest of International Arbitrations,” I., 343-344-

* Note G, infra, p. 46.

* Note H, infra, pp. 47-48.

* Note J, infra, p. 48.

PROC. AMER. PHIL. SOC., LI. 203 C, PRINTED MARCH 16, Igt2.

34 MOORE—CONTRABAND OF WAR. [February 2,

and munitions of war and machinery for their manufacture, salt-
peter, military accoutrements and equipments, and horses. The
“conditionally contraband” were:

Coal, when destined for a naval station, a port of call, or a ship or ships
of the enemy; materials for the construction of railways or telegraphs, and
money, when such materials or money are destined for the enemy’s forces;
provisions, when destined for an enemy’s ship or ships, or for a place that is
besieged.

In the early stages of the Boer war a question arose between the
United States and Great Britain as to the seizure of various articles
shipped at New York, some of them on regular monthly orders, by
American merchants and manufacturers on the vessels Beatrice,
Maria, and Mashona, which were seized by British cruisers while
on the way to Delagoa Bay. These articles consisted chiefly of
flour, canned meats, and other foodstuffs, but also embraced lumber,
hardware, and various miscellaneous articles, as well as quantities
of lubricating oil, which were consigned partly to the Netherlands
South African Railway, in the Transvaal, and partly to the Lourenco
Marques Railway, a Portuguese concern. It was at first supposed
that the seizures were made on the ground of contraband, and with
reference to this possibility the government of the United States, on
January 2, 1900, declared that it could not recognize their validity
“under any belligerent right of capture of provisions and other
goods shipped by American citizens in ordinary course of trade to
a neutral port.” It soon transpired, however, that the Beatrice and
Mashona, which were British ships, and the Maria, which, though a
Dutch ship, was at first supposed to be British, were arrested for
violating a municipal regulation forbidding British subjects to trade
with the enemy, the alleged offense consisting in the transportation
of goods destined to the enemy’s territory. The seizure of the
cargoes was declared to be only incidental to the seizure of the ships.
As to certain articles, however (particularly the oil consigned to the
Netherlands South African Railway in the Transvaal), an allega-
tion of enemy’s property was made; but no question of contraband
was raised, and it was eventually agreed that the United States
consul-general at Cape Town should arrange with Sir Alfred Milner,

1912.] MOORE—CONTRABAND OF WAR. 35

the British high commissioner, for the release or purchase by the
British government of any American-owned goods, which, if pur-
chased, were to be paid for at the price they would have brought at
the port of destination at the time they would have arrived there
in case the voyage had not been interrupted. In the course of the
correspondence, Lord Salisbury thus defined the position of the
British government on the question of contraband:

Food stuffs, with a hostile destination, can be considered contraband of
war only if they are supplies for the enemy’s forces. It is not sufficient that
they are capable of being so used; it must be shown that this was in fact
their destination at the time of the seizure.

This statement by Lord Salisbury was in harmony with what is
laid down in Holland’s Manual of Naval Prize Law, issued by the
British Admiralty in 1888. In this Manual conditional contraband
embraces provisions and liquors fit for consumption of army or
navy; money; telegraphic materials, such as wire, porous cups,
platina, sulphuric acid, and zinc; materials for railway construction,
as iron bars and sleepers; coals, hay, horses, rosin, tallow, and tim-
ber. But these articles, it is stated, “are contraband only in case
it may be presumed that they are intended to be used for the pur-
poses of war,” and “this presumption arises when such hostile
destination of the vessel is either the enemy’s fleet at sea, or a hos-
tile port used exclusively or mainly for naval or military equipment.”

On the outbreak of the war with Japan, the Russian government,
in March, 1904, published instructions to its naval commanders
which forbade the conveyance of contraband “to Japan or to Japa-
nese armed forces,’ and denounced as contraband “ foodstuffs,”
including all kinds of grain, fish, fish products of various kinds,
beans, bean oil, and oil cakes. The British government protesting
expressed “great concern” that “rice and provisions” should be
treated as unconditionally contraband, this being regarded “as in-
consistent with the law and practice of nations.” The British gov-
ernment, it was declared, did not contest “that, in particular cir-
cumstances, provisions may acquire a contraband character, as for
instance, if they should be consigned direct to the army or fleet of
a belligerent, or to a port where such fleet may be lying”; but it

36 MOORE—CONTRABAND OF WAR. [February 2,

could not admit “that if such provisions were consigned to the port
of a belligerent (even though it should be a port of naval equip-
ment) they should therefore be necessarily regarded as contraband
of war.’ The true test appeared to be “ whether there are circum-
stances relating to any particular cargo to show it that it is destined
for military or naval use.”

The United States was obliged to deal with the same question
in the case of the steamer Arabia, whose cargo, composed of rail-
way material and flour, destined to Japanese ports and consigned to
various commercial houses there, was condemned by the Russian
prize court at Vladivostok as contraband, on the strength of its
destination. The United States protested against this judgment as
involving a “disregard of the settled law of nations.” The United ©
States declared that it was “vital to the legitimate maritime com-
merce of neutral states” that there should be “no relaxation” of
the distinctions with regard to contraband ; that there was and could
be “no middle ground”; that “the criterion of warlike usefulness |
and destination” had “ been adopted by the common consent of civi-
lized nations, after centuries of strugglé in which each belligerent
made indiscriminate warfare upon all commerce of all neutral states
with the people of the other belligerent, and which led to reprisals
as the mildest available remedy”; that, while articles such as arms
and ammunition, self-evidently of war-like use, were contraband if
destined to enemy territory, yet articles such as coal, cotton, and
provisions, which, though ordinarily innocent, were capable of war-
like use, were ‘‘ not subject to capture and confiscation unless shown
by evidence to be actually destined for the military or naval forces
of a belligerent”; that “this substantive principle of the law of ©
nations ’”’ could “not be overridden by a technical rule of the prize
court that the owners of the captured cargo must prove that no part
of it” might reach the enemy forces; and that, such proof being “of

’

an impossible nature,” its exaction would render neutral commerce
impossible and result in the condemnation of the innocent with the
guilty. In conclusion the ambassador of the United States at St.
Petersburg .was instructéd to express “the deep regret and grave

concern”? with which his government had received the unqualified

1912.] MOORE—CONTRABAND OF WAR. 37

communication of the decision of the prize court, and was directed
to “make earnest protest against it” and to say that his government,
regretted “its complete inability to recognize the principle of that
decision and still less to acquiesce in it as a policy.”

In consequence of the British and American protests the Russian

, government appointed a commission to consider the question of con-
traband, and on October 22, 1904, announced that, while horses and
beasts of burden would continue to be treated as contraband of war,
yet various other articles, including rice and foodstuffs, would be
considered as contraband if destined for a belligerent government,
its administration, army, navy, fortresses, naval ports, or purveyors,
but not if “addressed to private individuals.”

Since the war between Russia and Japan, the subject of contra-
band has been dealt with in the Declaration of London, signed Feb-
ruary 26, 1909, by representatives of Germany, the United States,
Austria-Hungary, Spain, France, Great Britain, Italy, Japan, the
Netherlands, and Russia, with the object of laying down rules of
maritime law, embracing blockade, contraband, unneutral service,
destruction of neutral prizes, and various other subjects, for the
government of the International Prize Court which Germany pro-
posed to the Second Peace Conference at The Hague, and for the
constitution of which provision was made by the convention signed
on October 18, 1907. As the House of Lords has lately rejected a
bill, which had passed the Commons, to carry this convention into
effect, the fate of the Declaration must, so far as Great Britain is
concerned, be regarded as at least doubtful. It has been fiercely
assailed in England, but has been ably defended by eminent persons,
among whom Westlake may be particularly mentioned, who, although
they naturally do not pronounce it perfect, consider that its adop-
tion would on the whole be advantageous. Into this general ques-
tion it is beyond my province now to enter, my subject being simply
contraband.

The Declaration (Article 24), following the Grotian classifica-
tion, divides articles into (1) absolutely contraband, (2) condition-
ally contraband, and (3) absolutely noncontraband. The second
category—the conditionally contraband—includes fourteen general

eS .
AB

38 MOORE—CONTRABAND OF WAR. [February 2,

heads, namely, foodstuffs; forage and grain, suitable for feeding
animals; clothing, fabrics for clothing, and boots and shoes, suitable
‘for use in war ; gold and silver in coin or bullion, and paper money;
vehicles of all kinds available for use in war, and their component
parts; vessels, craft, and boats of all kinds,?’ floating docks, parts
of docks and their component parts; railway material, both fixed
and rolling-stock, and materials for telegraphs, wireless telegraphs,
and telephones; balloons and flying machines and their distinctive
component parts, together with accessories and articles recognizable

as intended for use in connection with balloons and flying machines;

fuel, and lubricants; powder and explosives not specially prepared
for use in war; barbed wire and implements for fixing and cutting

it; horseshoes and shoeing materials; harness and saddlery; field —

glasses, telescopes, chronometers, and all kinds of nautical instru-
ments. And to this list belligerents are (Article 25) allowed to add
by declarations notified to other powers.

For all contraband the Declaration preserves (Article 39) the
penalty of condemnation; and it provides (Article 33) that “ condi-
tional contraband” shall be liable to capture if “destined for the
use of the- armed forces or of a government department of the
enemy state, unless in this latter case the circumstances show that
the articles cannot in fact be used for the purposes of the war in
progress.” As to proof of destination, the provisions of the Decla-
ration are two-fold. The doctrine of continuous voyage, though
declared to be applicable to absolute contraband, is not applied to
conditional, so that cargoes of the latter are not put in jeopardy
when sent to a neutral port. This is a desirable and important safe-
guard. A hostile destination is, on the other hand, presumed (Arti-
cle 34) “if the consignment is addressed to enemy authorities, or to
a merchant, established in the enemy country, and when it is well

“This provision that vessels, craft and boats shown to be intended for
belligerent use may be seized and confiscated as contraband evidently is not
intended to alter or modify the law according to which the fitting out, arming,
or equipping in neutral jurisdiction of a vessel to cruise or carry on war
against one of the belligerents constitutes, not a mere transaction in contra-
band, but the setting on foot of a hostile expedition, which the neutral is
bound to use due diligence to prevent.

ee ees

i al td

i i lh a a le

1912.] MOORE—CONTRABAND OF WAR. 39

known that this merchant supplies articles and material of this kind
to the enemy,” or “is destined to a fortified place of the enemy, or
to another place serving as a base for the armed forces of the
enemy.” These grounds of inference are so vague and general that
they would seem to justify in almost any case the presumption that
the cargo, if bound to an enemy port, was “destined for the use
of the armed forces or of a government department of the enemy
state.” Any merchant established in the enemy country, who deals
in the things described, will sell them to the government; and if it
becomes public that he does so, it will be “well known” that he
supplies them. Again, practically every important port is a “ forti-
fied place”; and yet the existence of fortifications would usually
bear no relation whatever to the eventual use of provisions and
various other articles mentioned. Nor can it be denied that, in this
age of railways, almost any place may serve as a “base” for sup-
plying the armed forces of the enemy. And of what interest or
advantage is it to a belligerent to prevent the enemy from obtaining
supplies from a “base,” from a “ fortified place,” or from a mer-
chant “well known” to deal with him, in his own country, if he is
permitted freely to obtain them from other places and persons, and
especially, as countries having land boundaries can for the most part
easily do, through a neutral port? No doubt the advantage of such
prevention may readily become greater, if the enemy be, like Great
Britain or Japan, an insular country. .

The attempt to establish an international prize court constitutes
one of the most remarkable advances ever proposed towards the
founding of an international jurisdiction, and the effort made in
the Declaration of London to furnish a universal law is a step in
the right direction. The able framers of the Declaration may be
assumed to have made the best compromise that was at the time
obtainable. But the question of contraband remains unsolved; and
it will so remain either until, by an inconceivable relapse into primi-
tive sixteenth-century conditions, all commerce with belligerents is
forbidden, or until innocent articles of universal use, such as pro-
visions, which, even when consumed by military men, are consumed
by them as human beings rather than as soldiers, are, in conformity

40 MOORE—CONTRABAND OF WAR. [February 2,

with the traditional contention of the United States, put beyond
reach of capture on loose and interested surmises.

While seizures of articles commonly classed as conditional con-
traband have inflicted upon neutrals enormous losses, the effect of
such seizures upon the fortunes of the belligerents has by no means
been so appreciable as it is often hastily assumed to have been.
Lawless, unrestrained and successful as were the depredations on
neutral commerce during the wars following the French Revolution,
not only did the struggle persist through more than twenty years,
but its end was scarcely hastened by the spoliations, which indeed
seem rather to have supplied the means of its prolongation. The
reduction of the South, during the American Civil War, was sen-
sibly accelerated by the cutting off of its commerce, but this result
was achieved chiefly by means of blockade.

At the Second Peace Conference at The Hague, in 1907, the
British government, with a view to diminish the difficulties which
neutral commerce encounters in case of war, proposed that the
powers should enter into an agreement to abandon the principle of
contraband altogether, and to confine the right of visit to the ascer-
tainment of the merchant vessel’s neutral character. Such a meas-
ure was justified on the ground that, while it had in spite of all
efforts been found to be impossible to prevent belligerents from
obtaining the munitions which they needed, the attempt to do so
had, by reason of«the increase in the tonnage of ships, the carrying
of mixed cargoes, the lack of any single destination of ship or cargo,
the multiplication of the number of articles used in war, and the
development of railways and other means of transportation by land,
become more and more futile on the part of belligerents and more
and more injurious to neutrals. The circumstance that the radical
proposal of Great Britain, although it was not eventually adopted
by the Conference, received the support of twenty-six of the powers
represented therein, while, only five voted against it,?* alone suffices

*For: Argentine Republic, Austria-Hungary, Belgium, Brazil, Bulgaria,
Chile, China, Cuba, Denmark, Dominican Republic, Great Britain, Greece,
Italy, Mexico, Netherlands, Norway, Paraguay, Peru, Persia, Portugal, Salva-

dor, Servia, Siam, Spain, Sweden, Switzerland —26.
Against: France, Germany, Montenegro, Russia, United States—5.

aS

1912.] MOORE—CONTRABAND OF WAR. 41

to demonstrate the existence of a general conviction that the present
state of things is altogether unsatisfactory.

Recalling the treaties between Prussia and the United States of
1785 and 1799 for the virtual abolition of contraband, it is curious
to find the United States and Germany acting together as two of the
five powers that voted against its abolition in 1907; but, although the
United States voted against the British proposal, it is gratifying to
note that Admiral Sperry, on behalf of the United States delegation,
after the British proposal had failed to secure the unanimous ap-
proval of the conference, maintained the historic American position
that the right of capture should be confined to articles agreed to be
absolutely contraband. In this relation it may be observed that the
Institute of International Law, in 1896, after much deliberation,
voted that the category of conditional contraband should be abolished,
the belligerent, however, to have the right, at his pleasure and subject
to an equitable indemnity, to sequester or to preempt, when on their
way to an enemy port, articles serving equally for war and for peace.*°
Rather than allow existing conditions to continue, it might be advisa-
ble to add to the present duties of neutrals the obligation to prohibit
the exportation of arms and munitions of war to belligerents, it being
agreed that commerce in all other articles should be free. Under
the more efficient administrative methods now in vogue, the enforce-
ment of a measure of this kind probably would not prove to be so
difficult as it was once supposed to be. Several examples of such
a prohibition have already been given.*® By a joint resolution of
the Congress of the United States of April 22, 1898, passed at the
opening of the war with Spain, the President was “authorized, in
his discretion and with such limitations and exceptions as shall seem
to him expedient, to prohibit the export of coal or other material
used in war from any seaport of the United States until otherwise
ordered” by himself or by Congress. Not only was this law en-

Abstaining: Japan, Panama, Rumania, Turkey.—4.
7g ra Deuxiéme Conférence de la Paix, Actes et Documents, I., 259; III.,

"® Annuaire de Elnstitut de Droit International, Vol. 15 (1805), 231. See

Westlake’s comments, Int. Law, II., 249.
* Supra, pp. 22-23.

42 MOORE—CONTRABAND OF WAR. [February 2,

forced during the war with Spain,®° but the President, by a procla-
mation of October 14, 1905, prohibited, without limitation or excep-
tion, till it should be otherwise ordered, the export of arms and
munitions of war to the Dominican Republic. This prohibition, as
the proclamation recites, was established for what appeared to the
President to be “ good and sufficient reasons.” It was not founded
upon any legal obligation. The fact that the American supervision
of the Dominican customs administration had then in effect begun
furnished a special justification for preventing acts that tended to
disturb the public peace of the island. Nevertheless, the interest of
the United States in the collection of the Dominican customs can
hardly be considered as more important than its interest in the ad-
justment and preservation of the rights of neutral commerce in time
of war, or as rendering proper in the former case a precaution which
would not be admissible in the latter. It is not, however, my pur-
pose to lay undue stress upon the method of dealing with absolute
contraband; nor do I wish to intimate that the general abolition of
conditional contraband should await the adoption of further meas-
ures in respect of absolute contraband.

APPENDIX.
Nore A.

Treaty of Commerce between the United States and Italy, February 26, 1871,
Articles XII. and XV.

Art. XII. The high contracting parties agree that, in the unfortunate
event of a war between them, the private property of their respective citizens
and subjects, with the exception of contraband of war, shall be exempt from
capture or seizure, on the high seas or elsewhere, by the armed vessels or by
the military forces of either party; it being understood that this exemption
shall not extend to vessels and their cargoes which may attempt to enter a
port blockaded by the naval forces of either party.

Art. XV. The liberty of navigation and commerce secured to neutrals
by the stipulations of this treaty shall extend to all kinds of merchandise,
excepting those only which are distinguished by the name of contraband of
war. And, in order to remove all causes of doubt and misunderstanding
upon this subject, the contracting parties expressly agree and declare that
the following articles, and no others, shall be considered as comprehended
under this denomination:

*® Moore, “ Digest of International Law,” VII., 194.

1912.] MOORE—CONTRABAND OF WAR. 43

1. Cannons, mortars, howitzers, swivels, blunderbusses, muskets, fuses,
rifles, carbines, pistols, pikes, swords, sabers, lances, spears, halberds, bombs,
grenades, powder, matches, balls, and all other things belonging to, and ex-
pressly manufactured for, the use of these arms.

2. Infantry belts, implements of war and defensive weapons, clothes cut
or made up in a military form and for a military use.

3. Cavalry belts, war saddles and holsters.

4. And generally all kinds of arms and instruments of iron, steel, brass,
and copper, or of any other materials manufactured, prepared, and formed
expressly to make war by sea or land.

Nore B.

Proposition (translated) of the Delegation of the United States at The
Hague Conference of 1907 on Contraband of War:

1. Absolute contraband shall consist of arms, munitions of war, provi-
sions, and articles employed solely for a military purpose or for military
establishments. :

2. Conditional contraband shall consist of provisions, materials and arti-
cles which are employed for the double purpose of peace and of war, but
which by reason of their nature or special qualities, or their quantity, or by —
their nature, quality and quantity are suitable and necessary for a military
purpose, and which are destined for the use of the armed forces or the mili-
tary establishments of the enemy.

3. The list of articles and of provisions which shall be included in each
of the aforesaid classes must be duly published and notified to neutral gov-
ernments, or to their diplomatic agents, by the belligerents, and no article
shall be seized or confiscated under the head of conditional contraband as to
which such advice has not been given. (‘‘ Deuxiéme Conférence de la Paix,”
Actes et Documents, III., 1160.)

Nore C.
Treaty of the Pyrenees, November 7, 1759.

XII. By .. . Contraband-Goods, are only understood all sorts
of Fire-Arms, and all things belonging to them; as Cannons, Muskets,
Mortar-pieces, Petards, Bombs, Granadoes, Saucidges, Pitch’d-circles, Car-
riages, Forks, Bandaliers, Gunpowder, Cords, Saltpeter, Bullets, Pikes, Swords,
Casks, Head-pieces, Cuirasses, Halberts, Javelins, Horses, Saddles for Horses,
Holsters for Pistols, Belts, or any other warlike Furnitures.

XIII. In that kind of Contraband-Goods, shall not be comprehended
Wheat, Corn, or other Grains, Pulse, Oils, Wines, Salt, nor generally anything
belonging to the nourishment and sustentation of Life; but they shall remain
free, as all other Merchandizes and Commoditys, not comprehended in the
foregoing Article: And the transportation of them shall be free, even to
Places in enmity with the Crown of Spain, except Portugal, as aforesaid, and
the Towns and Places besieged, block’d up, or surrounded. (Treaty of the

44 MOORE—CONTRABAND OF WAR. [February 2,

Pyrenees, concluded between France and Spain, November 7, 1659: Vol. 1, pp.
45-46, of “ A General Collection of Treatys, Declarations of War, Manifestos,
and other Publick Papers, relating to Peace and War,” 2d edition, London,

1732.)
Note D,

Treaty of Commerce between Great Britain and France, Signed at Utrecht,
March 31-—April 11, 1713, Arts. XIX., XX.

Article XIX. Under this name of contraband, or prohibited goods, shall
be comprehended arms, great guns, bombs, with their fusees and other things
belonging to them; fire-balls, gunpowder, match, cannon-ball, pikes, swords,
lances, spears, halberds, mortars, petards, granadoes, saltpetre, muskets,
musket-ball, helmets, head-pieces, breast-plates, coats of mail, and the like
kinds of arms, proper for arming soldiers, musket-rests, belts, horses with
their furniture, and all other warlike instruments whatever.

Article XX. These merchandizes which follow shall not be reckoned
among prohibited goods, that is to say, all sorts of clothes, and all other
manufactures woven of any wool, flax, silk, cotton, or any other materials
whatever; all kinds of clothes and wearing apparel, together with the species
whereof they are used to be made; gold and silver, as well coined as un-
coined, tin, iron, lead, copper, brass, coals; as also wheat and barley, and any
other kind of corn, and pulse; tobacco, and likewise all manner of spices,
salted and smoked flesh, salted fish, cheese and butter, beer, oils, wines, sugars,
and all sorts of salt, and, in general, all provisions which serve for the nourish-
ment of mankind, and the sustenance of life. Furthermore, all kinds of
cotton, hemp, flax, tar, pitch, ropes, cables, sails, sailcloths, anchors, and any
parts of anchors; also shipmasts, planks, boards and beams of what trees
soever; and all other things proper either for building or repairing ships;
and all other goods whatever, which have not been worked into the form of
any instrument, or thing prepared for war, by land or by sea, shall not be
reputed contraband, much less such as have been already wrought and made
up for any other use; all which shall wholly be reckoned among free goods,
as likewise all other merchandizes and things which are not comprehended,
and particularly mentioned in the preceding article, so that they may be trans-
ported, and carried in the freest manner by the subjects of both confederates,
even to places belonging to an enemy, such towns or places being only ex-
cepted, as are at that time besieged, blocked up round about, or invested.
(Jenkinson’s “ Treaties,” II., 51.)

Norte £.

Treaty of Commerce and Navigation between Great Britain and Russia, June
20, 1766, Arts. X. and XI., referred to in the third article of the
declaration of the Empress Catherine of Feb. 28, 1780.

X. Permission shall be granted to the subjects of the two contracting
parties to go, come, and trade freely with those states, with which one or
other of the parties shall at that time, or at any future period, be engaged in

eS ee ee ee ee

ee eRe

1912.) MOORE—CONTRABAND OF WAR. 45

war, provided they do not carry military stores to the enemy. From this
permission, however, are excepted places actually blocked up, or besieged, as
well by sea as by land; but at all other times, and with the single exception
of military stores, the above-said subjects may transport to these places all
sorts of commodities, as well as passengers without the least impediment.
With regard to the searching of merchant ships, men of war and privateers
shall behave as favourably as the reason of the war, at that time existing, can
possibly permit towards the most friendly powers that shall remain neuter;
observing, as far as may be, the principles and maxims of the law of nations,
that are generally acknowledged.

XI. All cannon, mortars, muskets, pistols, bombs, grenades, bullets, balls,
fusees, flint-stones, matches, powder, saltpetre, sulphur, breast-plates, pikes,
swords, belts, cartouch-bags, saddles, and bridles, beyond the quantity that
may be necessary for the use of the ship, or beyond what every man serving
on board the ship, and every passenger, ought to have, shall be accounted
ammunition or military stores; and, if found, shall be confiscated, according
to law, as contraband goods or prohibited commodities; but neither the ships
nor passengers, nor the other commodities found at the same time, shall be
detained or hindered to prosecute their voyage. (Chalmers, I., 7.)

Nore F.

Treaty between the United States and Great Britain, November 19, 1794,
Art. XVIII.

Article XVIII. In order to regulate what is in future to be esteemed con-
traband of war, it is agreed that under the said denomination shall be com-
prised all arms and implements serving for the purposes of war, by land or
sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses,
saucisses, carriages for cannon, musket-rests, bandoliers, gun-powder, match,
saltpetre, ball, pikes, swords, head-pieces, cuirasses, halberts, lances, javelins,
horse-furniture, holsters, belts, and generally all other implements of war, as
also timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and
cordage, and generally whatever may serve directly to the equipment of ves-
sels, unwrought iron and fir planks only excepted; and all the above articles
are hereby declared to be just objects of confiscation whenever they are
attempted to be carried to an enemy.

And whereas the difficulty of agreeing 6n the precise cases in which alone
provisions and other articles not generally contraband may be regarded as
such, renders it expedient to provide against the inconveniences and mis-
understandings which might thence arise: It is further agreed that whenever
any such articles so becoming contraband, according to the existing laws of
nations, shall for that reason be seized, the same shall not be confiscated,
but the owners thereof shall be speedily and completely indemnified; and
the captors, or, in their default, the Government under whose authority they
act, shall pay to the masters or owners of such vessels the full value of all
such articles, with a reasonable mercantile profit thereon, together with the
freight, and also the demurrage incident to such detention.

46 MOORE—CONTRABAND OF WAR. [February 2,

And whereas it frequently happens that vessels sail for a port or place
belonging to an enemy without knowing that the same is either besieged,
blockaded or invested, it is agreed that every vessel so circumstanced may be
turned away from such port or place; but she shall not be detained, nor her
cargo, if not contraband, be confiscated, unless after notice she shall again
attempt to enter, but she shall be permitted to go to any other port or place
she may think proper; nor shall any vessel or goods of either party that may
have entered into such port or place before the same was besieged, blockaded,
or invested by the other, and be found therein after the reduction or sur-
render of such place, be liable to confiscation, but shall be restored to the
owners or proprietors thereof.

Nore G.

Treaty of Commerce between the United States and France, February 6, 1778,
Arts. XXIII., XXIV.

Art. XXIII. It shall be lawful for all and singular the subjects of the
Most Christian King, and the citizens, people and inhabitants of the said
United States, to sail with their ships with all manner of liberty and security,
no distinction being made who are the proprietors of the merchandizes laden
thereon, from any port to the places of those who now are or hereafter shall
be at enmity with the Most Christian King or the United States. It shall
likewise be lawful for the subjects and inhabitants aforesaid to sail with the
ships and merchandizes aforementioned, and to trade with the same liberty and
security from the places, ports and havens of those who are enemies of both
or either party, without any opposition or disturbance whatsoever, not only
directly from the places of the enemy aforementioned to neutral places, but
also from one place belonging to an enemy to another place belonging to an
enemy, whether they be under the jurisdiction of the same Prince or under
several. And it is hereby stipulated that free ships shall also give a freedom
to goods, and that everything shall be deemed to be free and exempt which
shall be found on board the ships belonging to the subjects of either of the
confederates, although the whole lading or any part thereof should appertain
to the enemies of either, contraband goods being always excepted. It is also
agreed in like manner that the same liberty be extended to persons who are
on board a free ship, with this effect, that although they be enemies to both or
either party, they are not to be taken out of that free ship, unless they are
soldiers and in actual service of the enemies.

Art. XXIV. This liberty of navigation and commerce shall extend to all
kinds of merchandizes, excepting those only which are distinguished by the
name of contraband; and under this name of contraband or prohibited goods
shall be comprehended arms, great guns, bombs with the fuzes, and other
things belonging to them, cannon-ball, gunpowder, match, pikes, swords, lances,
spears, halberds, mortars, petards, granades, saltpetre, muskets, musket-ball,
bucklers, helmets, breast-plates, coats of mail, and the like kinds of arms
proper for arming soldiers, musket-rests, belts, horses with their furnitur:,
and all other warlike instruments whatever. These merchandizes which fol-

1912.] MOORE—CONTRABAND OF WAR. _ 47

low shall not be reckoned among contraband or prohibited goods; that is to
say, all sorts of cloths, and all other manufactures woven of any wool, flax,
silk, cotton or any other materials whatever; all kinds of wearing apparel,
together with the species whereof they are used to be made; gold and silver,
as well coined as uncoined, tin, iron, latten, copper, brass, coals; as also
wheat and barley, and any other kind of corn and pulse; tobacco, and like-
wise all manner of spices; salted and smoked flesh, salted fish, cheese and
butter, beer, oils, wines, sugars, and all sorts of salts; and in general all pro-
visions which serve for the nourishment of mankind and the sustenance of
life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables,
sails, sail-cloths, anchors and any parts of anchors, also ships’ masts, planks,
boards and beams of what trees soever; and all other things proper either for
building or repairing ships, and all other goods whatever which have not
been worked into the form of any instrument or thing prepared for war by
land or by sea, shall not be reputed contraband, much less such as have been
already wrought and made up for any other use; all which shall be wholly
reckoned among free goods; as likewise all other merchandizes and things
which are not comprehended and particularly mentioned in the foregoing
enumeration of contraband goods; so that they may be transported and carried
in the freest manner by the subjects of both confederates, even to places
belonging to an enemy, such towns or places being only excepted as are at
that time besieged, blocked up, or invested.

Nore H.

Treaty between the United States and Prussia, September 10, 1785 (signed
on the part of the United States by Franklin, Jefferson, and Adams),
Art. XIII.

Article XIII. And in the same case of one of the contracting parties
being engaged in war with any other Power, to prevent all the difficulties
and misunderstandings that usually arise respecting the merchandize hereto-
fore called contraband, such as arms, ammunition, and military stores of
every kind, no such articles carried in the vessels, or by the subjects or citi-
zens of one of the parties to the enemies of the other, shall be deemed con-
traband, so as to induce confiscation or condemnation and a loss of property
to individuals. Nevertheless, it shall be lawful to stop such vessels and
articles, and to detain them for such length of time as the captors may think
necessary to prevent the inconvenience or damage that might ensue from their
proceeding, paying, however, a reasonable compensation for the loss such
arrest shall occasion to the proprietors: And it shall further be allowed to use
in the service of the captors the whole or any part of the military stores
so detained, paying the owners the full value of the same, to be ascertained
by the current price at the place of its destination. But in the case supposed,
of a vessel stopped for articles heretofore deemed contraband, if the master
of the vessel stopped will deliver out the goods supposed to be of contra-
band nature, he shall be admitted to do it, and the vessel shall not in that
case be carried into any port, nor further detained, but shall be allowed to
proceed on her voyage.

48 . MOORE—CONTRABAND OF WAR. [February 2,

Treaty between the United States and Prussia, July 11, 1799 (signed on the
part of the United States by John Quincy Adams), Art. XIII.

Article XIII. And in the same case of one of the contracting parties
being engaged in war with any other Power, to prevent all the difficulties and
misunderstandings that usually arise respecting merchandise of contraband,
such as arms, ammunition, and military stores of every kind, no such articles
carried in the vessels, or. by the subjects or citizens of either party, to the
enemies of the other, shall be deemed contraband, so as to induce confiscation
or condemnation and a loss of property to individuals. Nevertheless, it shall
be lawful to stop such vessels and articles, and to detain them for such
length of time as the captors may think necessary to prevent the inconveni-
ence or damage that might ensue from their proceeding, paying, however, a
reasonable compensation for the loss such arrest shall occasion to the pro-
prietors; and it shall further be allowed to use in the service of the captors
the whole or any part of the military stores so detained, paying the owners
the full value of the same, to be ascertained by the current price at the place
of its destination. But in the case supposed of a vessel stopped for articles
of contraband, if the master of the vessel stopped will deliver out the goods
supposed to be of contraband nature, he shall be admitted to do it, and the
vessel shall not in that case be carried into any port, nor further detained,
but shall be allowed to proceed on her voyage.

All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls,
muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords,
belts, cartouch boxes, saddles and bridles, beyond the quantity necessary for
the use of the ship, or beyond that which every man serving on board the
vessel, or passenger, ought to have; and in general whatever is comprised
under the denomination of arms and military stores, of what description so-
ever, shall be deemed objects of contraband.

Norte J.

Treaty between the United States and Colombia, October 3, 1824, Arts.
RIV. (RY:

Art. XIV. This liberty of navigation and commerce shall extend to all
kinds of merchandises, excepting those only which are distinguished by the
name of contraband; and under this name of contraband or prohibited goods
shall be comprehended—

First. Cannons, mortars, howitzers, swivels, blunderbusses, muskets,
fusees, rifles, carbines; pistols, pikes, swords, sabres, lances, spears, halberds
and grenadés, bombs, powder, BARtehes, balls and all other things belonging to
the use of these arms;

Secondly. Bucklers, helmets, breast-plates, coats of mail, infantry belts,
and clothes made up in the form and for a military use;

Thirdly. Cavalry belts and horses with their furniture;

Fourthly. And generally all kinds of arms and instruments of iron, steel,
brass and copper, or of any other materials manufactured, prepared and
formed expressly to make war by sea or land.

Ne eee

1912.) MOORE—CONTRABAND OF WAR. 49
: Art. XV. All other merchandises and things not comprehended in the
articles of contraband explicitly enumerated and classified as above, shall be
held and considered as free, and subjects of free and lawful commerce, so that
they may be carried and transported in the freest manner by both the con-
_tracting parties, even to places belonging to an enemy, excepting only those
places which are at that time besieged or blocked up; and, to avoid all doubt in
this particular, it is declared that those places only are besieged or blockaded
which are actually attacked by a belligerent force capable of preventing the
entry of the neutral.

PROC. AMER. PHIL. SOC., LI. 201 D, PRINTED MARCH 25, 1912.

i

=

See

PROCEEDINGS

AMERICAN PHILOSOPHICAL SOCIETY
HELD AT PHILADELPHIA

FOR PROMOTING USEFUL KNOWLEDGE

VoL. LI APRIL-JUNE, 1912 No. 204

THE LEGENDARY AND MYTH-MAKING PROCESS IN
HISTORIES OF THE AMERICAN REVOLUTION.

By SYDNEY G. FISHER.
(Read April 18, 1912.)

Having taken the trouble some years ago to examine the great
mass of original evidence relating to the American Revolution, the
_ contemporary documents, pamphlets, letters, memoirs, diaries, the
debates in parliament and the evidence obtained by its committees,
I found that very little use of it had been made in writing our
standard histories, works like those of Bancroft, Hildreth, Fiske,

7 - which have been the general guides and from which school books

and other compilations, as well as public orations are prepared.
Others have made the same discovery and have been over-
whelmed with the same astonishment. About fifteen years ago Mr.
Charles Kendall Adams, astonished at what he found in the original
evidence, wrote an article on the subject published in the Atlantic
Monthly (Vol. 82, page 174), ridiculing the standard histories for
having abandoned the actualities and the original evidence. Our
whole conception of the Revolution, he said, would have to be al-
tered and the history of it rewritten. Within the last year or two
Mr. Charles Francis Adams has made the same discovery and in
his recent volume “ Studies Military and Diplomatic” has attacked
the historians with even greater severity and rewritten in his usual
PROC. AMER. PHIL. SOC. LII. 204 A, PRINTED MAY 21, I9QI2.

. 53

aS.

54 FISHER—MYTH-MAKING PROCESS IN [April 18,

trenchant, luminous and captivating style, a considerable portion of
that history. His essays on the military strategy of the Revolu-
tion are contributions of permanent value, refreshing and ennobling,
because they substitute truth and actuality for the mawkish sen-
timentality and nonsense with which we have been so long nauseated.

Minor investigations like the recent works on the Loyalists by
Flick, Van Tyne, Ryerson and Stark, Bartlett’s “ Destruction of
the Gaspee,” Judge Horace Gray’s essay on the ‘“ Writs of Assist-
ance,’ publications like the Hutchinson Letters, the Clinton-Corn-
wallis Controversy, have of course helped to bring about this
change. The general improvement in public libraries, in accessibil-
ity to the old pamphlets and original evidence of all sorts, has also
helped and led to a desire for knowledge of the actual events.
Lapse of time, too, is no doubt having its effect in lessening the
supposed inadvisability of letting all about the Revolution be known.

Within the last two years in writing a life of Daniel Webster I
had occasion to examine the original evidence of our history from
the War of 1812 to the Compromise of 1850; and I found that it had
substantially all been used in our histories of that period. There
was no ignoring of it or concealment of it such as I had found when
I investigated the original evidence of the Revolution. It is
strange at first sight, that the history of our Civil War of 1861
should have all its phases so openly and thoroughly exhibited,
the side of the South as well as the side of the North, both fully
displayed to the public, and that the greater part of the evidence
of the Revolution should be concealed. But the circumstances of
the Revolution were quite different.

In the first place, the large loyalist party in this country in some
places a majority, were so completely defeated, hunted down, ter-
rorized, driven out of the country and scattered in Canada and
various British possessions, that to use a vulgarism they never
“opened their heads” again. It is only in recent times that any
one has had the face to collect their evidence and arguments from
the original sources and publish it. For more than half a century
after the Revolution no writer could gain anything but condemna-
tion and contempt for mentioning anything about them. The suc-

eee ae

oe ean

TR en ne ET Vie ee ae eh MOT Ie DT TSS Fae) ae ey OU eee ee eae a er ae ee ee eee eRe eee ee Pee ee

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 55

cessful party in America would not even vilify them, but ignored
them and their doings as if they had had no existence. The object
of this was to make it appear that the Revolution had been a great
spontaneous uprising of the whole American people without faction
or disagreement among themselves. In England, strangely enough,
_ the loyalists were also ignored and nothing said about them. They
were often suspected of being half rebels, “ whitewashed rebels ”
as they were sometimes called. Those who fled to England were
apt to be treated with more or less contempt. They were often
regarded as mere objects of charity, “lick pennies” as one of them
complained, or at best as mere provincials of neither social nor
political importance.

But at the close of. our Civil War, the people of the Southern
States remained in the country, were respected by the North as well
as by the rest of the world, published their side of the controversy
and again sent their representatives to Congress as they had done
before the war. No one has as yet dared to falsify or conceal the
facts of that history or turn it into myths and legends.

In the second place, after the close of the Revolution, we were
for a long time a very disunited country. It was very doubtful
whether the States would be able to come together and form a na-
tional government. Many thought that some of them might go
back under British control. When a national constitution was at

7 last adopted, it was regarded by the rest of the world and even by

ourselves, as an experiment which very likely might not in the end
succeed. In Europe, it was largely regarded as a ridiculous experi-
ment. Our democratic ideas and manners were despised and our
newness and crudeness contrasted with the settled comfort and re-
finement of the old nations. We felt all this keenly. Our writers
and able men struggled might and main to unite our people and build
up a nation. They strove to give dignity and respect to everything;
to make no damaging admissions, to let not the smallest fact creep
out, that might be taken advantage of. It was, therefore, perhaps
too much to expect that they would describe the factions and turmoil
of the Revolution as they really were, the military absurdity of the
British General Howe letting it go by default, the cruelty and perse-

56 FISHER—MYTH-MAKING PROCESS IN [April 18,

cution inflicted on the loyalists and their large numbers. So they
described a Revolution that never happened and never could happen.
A whoop and hurrah boys! All spontaneous, all united; merciful
noble, perfect; all virtue and grand ideas on one side, all vice, wick-
edness, effeteness and degeneration on the other.

That feeling, the boasting and the exaggeration were proper
enough in one sense. It was certainly right to strive to build up the
nation, and protect and dignify it. But one of the most curious
instances of the way the feeling worked was Jared Sparks’ edition
of the letters of Washington. Sparks was the President of Har-
vard College, a man of intellect and learning, the author of an
interesting collection of biographies of American worthies. He
felt that he must exalt Washington, and so he rewrote quite a num-
ber of the Washington letters, struck out such expressions as such
and such a thing would “not amount to a flea bite,” altered some
statements about religion and God, left out whole passages, espe-
cially those in which Washington told of cashiering officers for
cowardice. Sparks was an interesting instance of the myth-making
process used for pious purposes, for by magnifying Washington in
this way he, no doubt, sincerely believed that he was helping reli-
gion and the youth of the country by setting up an example of per-
fection. Even. Washington Irving, as Mr. Adams points out
(“Studies Military and Diplomatic,” pp. 166-168), was not a little
inclined to myth-making. Irving gave us some excellent historical
work, for which we should be grateful; but he could not altogether
escape the taint of his time.

Jared Sparks was unquestionably a man of integrity ; but he was
carried away by the feeling of making a good showing by manufac-
turing Washington into theoretical perfection. I do not suppose
that he for one moment realized that he was doing what very closely
resembled some things for which persons in lower walks of life
are sent to jail. He had a rude awakening when W. B. Reed dis-
covered the whole imposture and published the original letters with
the Sparks improvements side by side. But the exposure did little
good; for similar methods, and evidence-ignoring on a much larger
scale, were used through whole volumes of so-called history.

Se TR ne ee oy Se ee ee a er Ty ae ee Bela ee ee

a er

Ets

ee Fn eas a ey ee roe

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 57

It is interesting in this connection to remember that Charles
Thomson, the Secretary of the Continental Congress during the
Revolution, wrote a history of that event; and his position and
acquaintance with leading characters must certainly have given him
valuable information. But he burnt the manuscript, giving as a
reason that its publication would give too much offense to persons
_ still living. He wished to quiet down everything, forget the horrible
_ scenes, controversies and factions, and build up the country. Cer-
tainly a most laudable motive; but we must not now in these days
_be misled by it and accept as history all those standard volumes
which when analyzed are nothing but concealment of actual facts
for the sake of helping the nation.

We must, hasten, however, to the third cause of the trouble, and
that was that the first history of the Revolution which all the others
have followed and copied was an English whig partisan argument.

The English whig party were in a peculiar position during the
Revolution, with a rebellion on hand that seemed likely to rend

the British empire asunder. They were in a very small minority,
overwhelmingly outvoted on every subject. They adopted as their
policy for the American War, the principle, or rather supposition,
that if the troops were all withdrawn from the colonies and no at-
_ tempt made to coerce them, the Americans would voluntarily sub-
mit to be ruled by England and form an ideal spectacle of uncoerced
colonies willingly and gladly remaining under the tutelage of their
mother.

It was a beautiful ideal as developed by the great whig orators,
Burke, Chatham and Barré, illustrated from history and art, and
dignified by passionate appeals to sentiment and manhood. Their
speeches have become classics of the English language and have been
recited for a hundred years by our school boys. Those orations
with others by the lesser whig lights to be found in the parliamen-
tary debates, together with the whole whig policy, were of course,
very acceptable to our people. The whigs were continually asserting
_ that our people did not want independence; they besought mild and
conciliatory measures for us; they attacked the tory measures; and
so far as they succeeded in checking in this way the tory policy of
coercion, they aided us in obtaining independence.

58 FISHER—MYTH-MAKING PROCESS IN [April 18,

This history of the Revolution from the whig point of view was
written almost as rapidly as the events occurred, not only in the whig
speeches, but in the Annual Register, an important publication of
that time, still in existence, which summed up the political and
diplomatic occurrences of the year both at home and abroad as they
affected England. After the Revolution was ended and people
began to think of writing an account of it, they found that it was
the easiest thing in the world to do. Just get down the volumes of
the Annual Register and there it all was for each of the seventeen
years of the long controversy; each year by itself clearly and co-
gently written; for the Annual Register had employed the great
whig orator Edmund Burke to write these summaries every year.
Burke was very careful with his dates, facts and statements so far
as he chose to go and the Register enjoyed a high reputation in that
respect. But the statements were all whig statements; no others
were admitted; no facts unfavorable to the whig line of policy were
admitted; and every fact and statement was given the tinge and
leaning of the whig policy.

Those summaries running for seventeen years in the Register
and the speeches of the whig orators were the material that the
early historians of the Revolution used. Gordon, who wrote the
first important and widely read: history of the Revolution, copied
page after page of the Register verbatim and says so in his preface
to the first English edition. Those whig speeches and summaries
gave the tone, the point of view and the limitations, and fixed them
so rigidly that the great mass of evidence outside of those limita-
tions has always been rejected; and when now obtruded on the pub-
lic in even the mildest form, is received with staring and sometimes
indignant incredulity.

I am certainly very glad that the whigs adopted the line of
policy that has been described. It was a great help to our cause;
and it may have been good for the whig party or at any rate the
best they could do under the circumstances. But to make that mere
partisan position the basis and limitation for writing history is the
rankest absurdity that was ever heard of. Even as a political policy,
the whig plan was a mere dream that could never be carried out in

a ee en eT

ee

ee a a

uy
eS ee a ae Te

OD, et Oe IE a Se Ep OR I ee a Re eS tee Oa

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 59

practice. It was a legal and political impossibility and contrary to
common sense. There was no such thing, there never was and there
never will be such a thing as a community of Americans voluntarily
submitting to the absolute supremacy of a parliament three thousand
miles across the Atlantic. The tory majority tried a large part of
the whig plan without success. They tried conciliation and found
it a failure. They repealed the stamp act and the paint, paper and
glass act very early in the controversy. They made no attempt to
enforce either act with troops and had scarcely any troops in the
country at that time. But the colonists, instead of becoming more
submissive, felt more conscious of their power and became more
independent. In 1778 the tories offered to repeal practically all
objectionable legislation and make a compromise that would be
just short of absolute independence; but the American patriots
rejected this offer as they had rejected all other attempts at concilia-
tion that did not offer absolute independence.

If the whigs had been in power during the revolution there is
no reason to suppose they would have been any more successful
in conciliating the Americans than were the tories ; and it is probable
that they would not even have attempted to put their idealism into
practice. In the Canadian rebellion of 1837 they were in power,
but they suppressed that rebellion with a high hand, hanged and
banished the ringleaders, did not withdraw troops, and did not rely
on voluntary submission. Their idealism in the Revolution was
mere minority eloquence. It is one thing to advocate an ideal theory
when you are in a hopeless minority and not responsible for results,
and quite another thing to put such a theory in force when you are
in the majority and in power which you wish to retain.

The whig partisan policy is such a narrow point of view for
writing history, that in order to maintain it and stay within it you
must leave out of consideration and either conceal or ignore more
than half the evidence and testimony of the eye witnesses and con-
temporary documents of the Revolution. You must write the Revo-
lution merely as the English whigs saw it, or professed to see it for
party purposes. You must omit large masses of evidence that have
been found in both America and England. You must ignore the

60 FISHER—MYTH-MAKING PROCESS IN [April 18,

testimony and arguments of the tories who from the point of view
of impartial history are entitled to exactly the same consideration
as witnesses as the whigs and patriots. You must ignore and vilify
the testimony and arguments of the loyalists, who, if history is to be
anything more than falsehood agreed upon, are entitled to exactly
the same consideration as witnesses as the patriots, whigs and tories.

The whig point of view ignores completely the whole mass of
evidence coming from the tories and the loyalists and does not accept
all the evidence coming from the patriots. As the whigs were al-
ways trying to show that the patriot party in America did not really
want independence, but would be content with a compromise, they
accepted no evidence that did not accord with that view.

All through the Revolution the English whigs sneered at the
loyalists, rejected all their statements, and were only a step behind
the patriots in condemnation of them. It seems now a little con-
temptible, this merciless whig condemnation of the loyalists who
were trying to save the same empire which the whigs professed to
have a remedy for saving. At the close of the Revolution, when
the treaty of peace was signed, a section of the whig party shifted
their ground, took up the cause of the loyalists and attacked the
ministry for making a treaty of peace which abandoned the loyalists
to the mercy of the patriots.

If you confine yourself to the whig limitation, you must not only
ignore the great mass of information about the loyalists, but you
must also ignore the military strategy of the war, scarcely noticed
in our histories, but, as Mr. Adams shows, almost as important
and interesting as the campaigns of Napoleon.

The great controversy over General Howe’s motives and military
conduct fills the first three years of the evidence of the war appear-
ing in pamphlets, letters and charges against him and finally, in the
voluminous evidence of his trial or investigation by Parliament.
This great mass of evidence about Howe, very familiar to the people
of that time, but unnoticed in our histories, gives us entirely new
views and ideas of the situation. Another controversy carried on
with the greatest acrimony between Clinton and Lord Cornwallis
and also unnoticed in our histories, gives us an entirely new un-
derstanding of the last three years of the war and its final issue:

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 61

Then there is much unused evidence about the actual position and
services of France, not to mention Spain, and Holland. There are
_ scores of old pamphlets which show the actual arguments ex-
_ changed between the two countries on the constitutional power of
_ Parliament in the argumentative period of the contest 1764-1774.
There is the evidence about the violation of the navigation and
_ trade laws, and about the admiralty courts. All this evidence our
standard histories fail to bring to light and explain.

They give us no adequate understanding of -the dozen acts of

Parliament which the patriot colonists wished repealed. They
never explain the full meaning of that demand of the colonists that
England should never keep soldiers in a colony in time of peace,
except by the consent of the colony, that England should not change
or amend a colonial charter except by the consent of the colony.

They do not even explain, they hardly even notice the demand by

the patriots that Parliament should have no authority in the colonies

_ __ or in relation to them except to regulate ocean commerce. They do

not explain what the colonists meant when they said that they were
_ willing to be ruled by the king alone. They do not compare these
_ demands with the modern British colonial system to see whether
; any of them have, in modern times, been accepted by England as
proper methods of colonial government.

The most curious fact about the whig and Annual Register
method of writing our history is that in the end the English tories
accepted it as the safest and best way of describing the old contro-
versy. Most of the evidence relating to the Revolution was a very
serious matter for Englishmen to handle, no matter whether their
political views were tory or whig. England still had colonies, ex-
pected to have more and to go on building up a great and obedient
imperial empire. The whigs in their way believed in that empire
as much as the tories and gladly accepted all the profits and advan-
tages of it. Would it be wise for English writers, whether tory,
_ whig or “impartial,” to tell the English people that the American
_ patriot party had from the beginning hated and detested what is to
this day the foundation principle ‘of the British empire, namely, the
supremacy of Parliament as absolute and omnipotent in every colony

62 FISHER—MYTH-MAKING PROCESS IN [April 18,

as it is in London; that they despised colonialism from the bottom
of their hearts; that they believed it to be unmanly and degrading
political slavery, and that the only definition of a colony that they
accepted, was one which described a community like the old Greek
colonies, sent out by a mother country with the intention that it
should become absolutely independent, and that the mother coun-
try’s only duty towards it would be to protect it from other nations
and guarantee its independence.

That an English writer should describe the Revolution in this
way and be compelled to admit that the American patriots had
broken away from the British empire because they despised its foun-
dation principle, was, and is, a great deal to expect of English nature
or of human nature. Neither English tories nor whigs care to de-
scribe the Revolution as it occurred; and it is hardly fair to expect
them to do it. Why should they deliberately excite their present
colonies and their great and profitable East Indian empire to rebel
and justify their rebellion. Is it not evidently much better to
say with the whigs that the American patriots dearly loved
England and the British empire; that they were contented, dutiful
and obedient colonists; that they were not only perfectly willing
but anxious to remain in the empire and share its profits and
glory of world wide conquest; that their leaving the empire was a
mere accident brought about by the blindness, stupidity, and wicked-
ness of a certain tory ministry, or, as some later writers have put it,
by the blindness, stupidity and self-will of the King, George III.,
who of himself, against the wishes of his ministry, parliament, and
the English people, drove the Americans out of the empire, when
they were perfectly willing to stay within it.

The first important history of the Revolution after Burke’s
annual summaries in the Register, was a four-volume work by
John Andrews, LL.D., published in 1786. It followed the same
lines as Burke’s essays in the Annual Register, except that it gives
much space to stating both sides of the arguments in Parliament,
but in such a tiresome, verbose way, that it is almost unreadable.
Andrews had no historic ability, no interpretative power; was a
mere dull chronicler and summarizer. He cites no evidence or au-

Pee eae ee el

Se ee a ee ee ee ee eee ee eT

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 63

thorities, and keeps on the safe side of mere ordinary dates and
events. The great mass of actual evidence; the position, the doings,
the arguments of the loyalists, the causes which led to the Revolu-
tion, the real conditions in America, the navigation and trade laws,
the strategy of battles, the controversy over General Howe’s conduct
of the war, his trial before Parliament, the Clinton-Cornwallis con-
troversy over the final strategy—these and a host of other actu-
alities, one would never learn anything about from the pages of John
Andrews, LL.D.

In 1787 a very ambitious and laborious account of the Revolu-
tion appeared by the Rev. William Gordon, an English whig, and
Congregationalist minister, who had come out to Massachusetts
early in the difficulties and remained with us all through the Revolu-
tion, interviewing generals and prominent men, visiting battlefields,
examining private papers and public records and collecting notes and
materials. When the war ended he returned to England and wrote
his history.

He was not altogether liked in America. John Adams said he
talked too much, and that his history in attempting to favor both
_ sides was a failure. But he seems to have been trusted with im-

portant papers and he was unquestionably very painstaking and
accurate. Many of the papers which he examined in manuscript,
notably in the year 1775, have been published in the American Ar-
chives and confirm his statements. No one has given us a better
detailed contemporary account of the Battles of Fort Mifflin and
Red Bank. But he had no historic ability. He follows the Annual
_ Register as a basis for a great part of his information, copying
from it without changing the language, and announces in his preface
that he has done so. He stays cautiously within the whig limits of
_ Safety already described. The remaining British colonies would not
be stirred to rebellion by anything he says. But as a chronicler who
lived amidst the events of the Revolution, his work is of some value
as a piece of original partisan evidence.
In 1789 Dr. Ramsay of South Carolina, who had written about
the Revolution, in his own State, brought out a general history of |
the Revolution, which strange to say, rejected in some respects the

64 FISHER—MYTH-MAKING PROCESS IN [April 18,

guidance of the whigs and the Annual Register and in this respect
stands alone. He seems to understand that the dispute between
America and England was irreconcilable and could never have been
settled by conciliation. He does not regard England’s conduct
toward the colonies as a mere mistake of a ministry, nor did he
regard it as the affair of the king, but as a deliberate movement of
an overwhelming majority in Parliament heartily supported by the
aristocracy, the county gentry and the ruling classes, to consolidate
the empire and bring the colonies under stricter regulations. He
showed that under the old system the colonists had grown accus-
tomed to semi-independence and now were bent on absolute inde-
pendence. But his method of ‘writing was so obscure and tedious
and he gave himself so little room, that his book could never have
much effect.

Any influence he might have had was soon overwhelmed and
forgotten by the historical works of a writer of the highest order of
popularity, and in that sense and influence the ablest historian we
have ever produced. Prescott, Motley and Parkman are mere chil-
dren when compared with him.

The truth is that Americans had no book about their great polit-
ical event that was easy to read until 1800 when the Reverend
Mason L. Weems came to their rescue with his “Life of Wash-
ington,” followed by lives of Franklin and Marion. Parson Weems,
as he was called, was, it is said, a preacher of large family and
slender means, who had charge of a church in Virginia near Mount
Vernon. To support his family he became a traveling book agent
for Matthew Carey, of Philadelphia. He wrote books of his own
and sold them in his wagon journeys through the country. He was
ready with a sermon, an harangue, or a stump speech, wherever he
could draw a crowd; and he would then recommend his wares and
sell them from his wagon. He played well on the fiddle and was
in demand at social gatherings and dances. He must have been an
entertaining fellow in his way and I should like to have seen him
on some of his tours through the south.

For a generation and more, his books, especially his “ Life of
Washington,’ had an enormous sale and went through over forty

6 oa mais

a ee am Tee i

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 65
editions. They were necessarily histories of the revolution. His
ideas on that event reached every corner of the country and every
class of life; and the publishers tell me his “ Life of Washington ”
‘still sells. Reckless in statement, indifferent to facts and research,
his books are full of popular heroism, religion and morality, which
_you at first call trash and cant and then, finding it extremely en-
_tertaining, you declare with a laugh, as you lay down the book, what
a clever rogue.

It is impossible to refrain from quoting from him. He is a most
delightful mixture of the Scriptures, Homer, Virgil and the back
woods. Everything rages and storms, slashes and tears. At the
passage of the stamp act “the passion of the people flew up 500
_ degrees above blood heat.’”” In battle Americans and English plunge
their bayonets into one another’s breasts and “ fall forward together
faint, shrieking in death and mingling their smoking blood.” Here
is his description of Morgan at the last battle of Saratoga.

“The face of Morgan was like the full moon in a stormy night when she
looks down red and fiery on the raging deep, amidst foundering wrecks and

ie cries of drowning seamen; while his voice like thunder on the hills was heard
loud shouting his cavalry to the charge.”

; “Far-famed Brittanica,’ Weems says, “was sitting alone and
_ tearful on her Western cliff, while, with downcast looks, her faith-
____ ful lion lay roaring at her feet.” And we must have one more from
_ his description of the Battle of the Cowpens.
4 “As when a mammoth suddenly dashes in among a thousand buffaloes,
feeding at large on the vast plains of Missouri; all at once the inmumerous
_ herd, with wildly rolling eyes and hideous bellowings, break forth into flight,
while close at their heels the roaring monster follows. Earth trembles as
they fly. Such was the noise in the chase of Tarleton, when the swords of
Washington’s cavalry pursued his troops from the famous fields of the
Cowpens.”
It is in vain that the historians, the exhaustive investigators, the
learned, and the accurate rail at him or ignore him. He is inimi-
table. He will live forever. He captured the American people.
He was the first to catch their ear. He said exactly what they
wanted to hear. He has been read a hundred times more than all
the other historians and biographers of the Revolution put together.

66 FISHER—MYTH-MAKING PROCESS IN [April 18,

He fastened his methods so firmly upon the country that the learned
historians must, in their own dull and lifeless way, conform as far
as possible to his ideas or they will be neither read nor tolerated.

Out of the social, genial, card-playing, fox-hunting Washington,
Weems manufactured the sanctimonious wooden image, the Sunday
school lay figure, which Washington still remains for most of us, in
spite of all the learned efforts of Owen Wister, Senator Lodge and
Paul Leicester Ford. Weems was a myth-maker of the highest
rank and skill and the greatest practical success. Of the Revolution
itself he made a Homeric and Biblical combat of giants, titans and
mammoths against the unfathomable corruption and wickedness of
about a dozen dragons and fiends calling themselves King and Min-
istry in England.

He goes back wholly to the whigs and the Annual Register. The
people of England, everyone on that blessed island, except the dozen
ministerial fiends, were, he assures us, a noble, kindly, gentle race.
He knew them well; he had lived among them when he studied
theology ; and they did not make war on the Americans. They would
not have thought of such a thing; they disapproved of the war. As
for the American colonists, though giants and mammoths when
aroused, they were also a gentle people, most loving and obedient to
the mother country, anxious to remain with her, had not war been
cruelly made upon them.

And why then was cruel war made upon them? Simply, says
Parson Weems, because “the king wanted money for his hungry
relations and the ministers stakes for their gaming tables or diamond
necklaces for their mistresses.”

There it is in its crudest form, the ministerial explanation of the
Revolution, the most popular, short, easy and practical explanation
of the great event that could be devised. It reveals nothing about
the real issue at stake between the two countries; nothing about the
question of the supremacy of Parliament or the other great principles
involved. But it pleased vast numbers of people because as ex-
pressed by Weems, they could grasp it instantly ; it appealed to their
suspicions of what the effete monarchies across the Atlantic really
were. Expressed in different language with a few political and

eT a ee

i

~ =

ee ee

We ea ee

ee
ee

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 67

more refined ideas substituted for the diamond necklaces and hungry
relations, it pleased the half loyalist element which still remained in
the country, and it pleased a certain class among the patriots who

__wanted to be able to admire England, her literature, her laws, her
social customs, the charming lives of her country gentry, the hedge

rows and green fields, and the fashion of London. They could
admire and love all these things, have social pleasures with distin-
guished Englishmen, talk about the Anglo-Saxon race, its glories

and conquests, and yet remain true Americans, because the Revolu-

tion had been a mere ministerial war, a ministerial accident, uncon-
nected with the rest of England and such an accident could never
happen again.

We might dispose of all the subsequent pee of the Revolu-
tion by simply saying that they followed along in this short and easy
method. Even Chief Justice Marshall in his Life of Washington
published in 1804, though once or twice disposed to break away, trots
along in the same old rut.

In 1809 quite a popular history of the Revolution appeared in
French, which went through twenty editions in Europe. It was
written by. Charles Botta of Northern Italy, who had been a surgeon
in the French army, and was appointed by Napoleon on the commis-
sion to govern the Italian republic he established. It was made up,
the author himself tells us, from the Annual Regtster, other histories,
the parliamentary debates and pamphlets. But it is all Annual Reg-
ister and so dull that a modern reader has difficulty in getting through
a single chapter. The American translation went through ten edi-
tions: Adams and Jefferson, who were still alive, praised it highly.
The popularity of such a tedious compilation is hard to understand,
unless it was that our people were pleased because it was a French
and Italian defence of our Revolution and institutions.

Hildreth’s “History of the United States,” published in 1849,
devoted parts of the third and fourth volumes to the Revolution.
It was a carefully written work, in much better style than its prede-
cessors, and is still pleasant to read, but was a conventional chronicle
within the established lines.

It was quickly followed by two other histories, one by Lord

68 FISHER—MYTH-MAKING PROCESS IN [April 18,

Mahon and one by George Bancroft. Lord Mahon, afterwards Lord
Stanhope, was a man of distinction in English politics and literature,
founder of the National Portrait Gallery and closely associated with
the amendment of the English copyright law and the Historical
Manuscripts Commission. His “ History of England” from 1713
to 1783 came out a volume at a time, between the years 1836 and
1853. In the last three of the seven volumes it touched upon the
Revolution. It was the first account of that great event written in
a style of any literary merit ; and Lord Mahon’s style possessed great
merit. Without the slightest attempt at the eloquence or rhetoric
supposed by some to be necessary for history, he relies on mere
clearness and aptness of words to convey the ideas of a very culti-
vated and intelligent mind. Every page of it is interesting and is
likely to remain so for alltime. Asa history of England it is full
of information, especially of the prominent characters of the time;
but as an account of our Revolution, it touches only the surface. He
goes no deeper than to say that the loss of the colonies was a mere
accidental piece of foolishness on the part of the ministry; and
having started with that position his pleasing narrative keeps within
the lines of safety.

In 1852 Bancroft’s “ History of the United States” reached the
Revolutionary period. It had been coming out a volume at a time
since 1832. Bancroft was of Massachusetts origin and studied in
Germany where, perhaps, he over-educated and over-Germanized
himself. He traveled extensively, met distinguished men, became
Secretary of the Navy and founded the Naval Academy at Annap-
olis. He was also minister from the United States to England and
to Germany. It was a splendid experience and one would naturally
expect from him something of broader gauge than his very cramped,
and bitter partisan account of the Revolution.

It was the most violently partisan and timorously defensive his-
tory of the Revolution that had appeared. It was most cautiously
written, with the greatest dread of the slightest admission, and with
intense straining to make out a perfect case. Entirely devoid of
candor, his fierce assaults on the character of Governor Hutchin-
son, his assignment to him of every contemptible motive, his sweep-

ky en ee ee

1912.] HISTORIES OF THE AMERICAN REVOLUTION. 69

ing condemnation and ignoring of the loyalists, and his omission of
everything that did not support the English whig theory, have made
his work more violently and narrowly one-sided than the partisan
pamphlets of the period of which he was writing.
_ His early volumes dealing with the discovery of the continent
and the colonial period were much better than those relating to the
Revolution. He restored to remembrance many important points in
colonial history which, for want of an adequate account had been
forgotten. But in the Revolution he became merely a scholarly
Weems, carrying to exaggeration the worst features of Weems and
In his treatment of the Writs of Assistance, he declaims against
_the decision of the Massachusetts court allowing them, as contrary
to the law and the constitution and cowardly subserviency to the
British Government. But the decision was perfectly sound law as
Judge Gray of the Supreme Court shows in his admirable investi-
_ gation of the subject; and until we recognize it as sound and inves-
tigate from that point of view, we shall never get any farther in the
history of the Revolution than mere demagogueism and declamation.
In his volumes on the colonial period, Bancroft made in footnotes
a number of citations to the original evidence, and some when he
reached the Revolution. But those for the Revolution were very
inadequate ; and in subsequent editions, for his work had a wide cir-
culation, the citations for the Revolutionary part grew less and less
until in the end they disappear almost altogether, and he gives no
_teferences for his innumerable quotations. His researches for mate-
tial both in this country and in Europe are described by his friends
_as the most remarkable ever made. Documents and sources of in-
formation closed to all others were, we are assured, open to him.
But strange to say, we see no result of this in his published work.
_Nor can any subsequent investigator profit by his labors; the won-
drous and mysterious sources of information remain mysterious;
and many of his opinions are difficult to support with the evidence
which investigators are able to find.
This practice of not giving the evidence in footnote citations has
been characteristic of all our histories and is indeed, quite necessary
PROC. AMER. PHIL. SOC. LI. 204 B, PRINTED MAY 22, IQI2.

70 FISHER—MYTH-MAKING PROCESS IN [April 18,

and proper when the essential principle is that the greater part of
the original evidence must be ignored. The habit of citation once
begun, might be carried too far.

Fiske, whose volumes on the Revolution have been published
since the Civil War, makes no citations of the original evidence.
Possibly he has forestalled criticism in this respect by the statement
in the preface to his illustrated edition, that his work is a mere his-
torical sketch. But it is two volumes containing some seven hun-
dred pages, confident and positive in tone. For the sources of his
material he refers us to Winsor’s “‘ Hand Book of the Revolution,”
and the notes of the “ Narrative and Critical History of America.”
But he might just as well have referred us to the card catalogues of
the public libraries. Such a general reference means nothing; and a
very large part of the material contained in Winsor’s ‘‘ Hand Book”
and in the ‘“ Narrative and Critical History” is made up of com-
mentaries on the Revolution, which are becoming more and more
numerous as time goes on. We have not yet learned in this country
to distinguish sharply between the original evidence and the subse-
quent commentaries. Our histories are usually written from the
commentaries which are numerous, more accessible, more full of
suggestion of all sorts, and easier to write from and understand than
the original evidence.

Fiske’s account of the Revolution was, however, superior to all
previous histories because it contains practically all that Bancroft
and the rest contain much better expressed. It would be difficult to
improve on Fiske’s style of writing for clearness, beauty and read-
ableness. Bancroft attempted the old-fashioned rhetorical style,
which, in his hands, ran to turgidity and bombast. Oratorical dig-
nity, the style that has been so often applied with success to Greek
and Roman history, is probably inadequate, in any hands, to the
economical, legal and constitutional, the prosaic, plebeian and demo-
cratic struggle, which took place in America. Lord Mahon’s style
was far better than the classic oratorical ; and Fiske’s is the best of all.

Fiske was an extreme admirer of Gladstone, the English liberal
party, its predecessor the whig party, and the whole system of the
British empire. At almost every step he brings in this admiration

1912.) HISTORIES OF THE AMERICAN REVOLUTION. 71

for England; “her glorious records of a thousand years,” and her
_ dominion “on which the sun shall never set.” If Gladstone had

been alive in 1776 he and Washington would have settled the whole
difficulty amicably, the English speaking race would not have been
divided, and the United States would in some wonderfully sweet
way have remained British colonies and part of the British empire,
_ the great civilizer of the world. That is the keynote of his history;
and it is all written within that limitation. No one has so glorified

and enlarged the old whig and Annual Register idea.
He limits himself and narrows his point of view still more by
assigning the obstinacy of the king and his love of personal govern-
ment as the cause of all the difficulty. The king deceived and forced
the ministry, Parliament and the English people, and kept them
deceived and forced during eleven years of argument and eight years
of war.
This one-man explanation of great political events is a cheap and
easy historical device of very wide application. It is very dramatic
and from a literary point of view, very telling and interesting. Fiske
varies it and makes it more dramatic by assuring us that the person
who put the wickedness into the head of George III. was Charles
_ Townshend.
: That is a very pretty and interesting touch, to have Mephistoph-
eles whispering in the ear of the one man. Botta, who also had
‘the one-man idea, said that the devil who did the whispering was
Lord Bute. And, indeed, the devil might be varied indefinitely,
_ because there were so many people suggesting those ideas at that
time. The editor of the Boston Gazette may have been the devil;
for Townshend’s main idea can be found in the pages of that journal
long before Townshend promulgated it. If Mr. Fiske and his fol-
lowers will admit that there were many million devils comprising the
majority of the Parliament and people of England together with the -
loyalists in America all whispering and some talking very loud for
the encouragement of George III., the one-man theory will become
comparatively harmless. 3

If modern comprehensive investigation aided by improved libra-

ries and collections has established anything, it is that the prominent

*

72 FISHER—MYTH-MAKING PROCESS IN . [April 18,

or great individuals, while undoubtedly valuable, are more apt to be
the results and outcome of political movements than the causes of
them. The Revolution was a world movement forced on by the
thought of millions of people. Its beginnings extend far back of
1764, and George III. merely swam in the current. In the face of
all the accumulated evidence of its workings, to assign the responsi-
bility for it to one man may do well enough for eulogistic biography
or oratory; but is hardly admissible in history, if history is to be any-
thing more serious than the latest novel.

In recent years another history of the Revolution, not yet com-
pleted, but very voluminous, by Sir George Otto Trevelyan, has been
appearing in England, a volume at atime. Mr. Trevelyan is remem-
bered for his admirable “ Life and Letters of Lord Macaulay,” pub-
lished nearly forty years ago and for his subsequent life of his rela-
tive, Charles James Fox, the brilliant whig orator in Parliament at
the time of our Revolution. The life of Fox treated only of that
statesman’s early years; and in his preface to the history Mr. Treve-
lyan explains that he finds he can write the rest of Fox’s life only
by writing a history of the American Revolution about which Fox
so often-spoke in Parliament.

It hardly accords with an American’s idea of the dignity of that
event to see it regarded as mere illustrative material for the biogra-
phy of a very reckless and insolvent gambler, who, however able
he may have been as a minority speaker in Parliament, and however
interesting he may still be to his family, was by no means the most
effective statesman England has produced. Our sense of proportion
is somewhat outraged by the exaltation of the gambler through six
volumes of the American Revolution, with more to come.

At the same time it must be confessed that from a literary point
of view, and in Mr. Trevelyan’s skilful hands, the sacrifice of his-
tory to an overestimate of a picturesque relative keeps his readers
interested and amused. The volumes are full of anecdote, remi-
niscence, political and literary gossip of the intellectual sort; and the
best parts of the work are the descriptions of English life and con-
ditions in that age. The diffuseness of the style seems to an Amer-
ican less suitable to history than Fiske’s matchless brevity and ease,

1912] HISTORIES OF THE AMERICAN REVOLUTION. 73

and it is far inferior in intellect, keenness and humor to the style of

_ Mr. Charles Francis Adams. But Mr. Trevelyan is a delightful
_ master of telling idioms, and clever phrasing, which have placed him
where he is in English literature.

He is a distinguished member of the English liberal party and
_ this with his natural sympathy for that party’s predecessors, the old
whigs and for his picturesque relative, combined with the necessity
for not saying anything to impair modern British control of colonies,
_ forces his book into the most narrow form of the Weems minis-

terial explanation.

As an attack upon the tory ministry of that period, nothing prob-
ably will ever equal the accumulated force, the massing of details,
_ the sweeping condemnation and the charm of language of Mr. Treve-
lyan’s work. The unfortunate ministry is overwhelmed and buried
under a mass of disapprobation that exceeds in weight and volume
all that Fox and all that all the other whig orators ever said against
them. Every fact, every inference, every delicate insinuation that
lapse of time, historical perspective and the labor of years can bring
together, is heaped upon them. Their depravity, malignity, and stu-
pidity are unspeakable, especially when contrasted with the enlight-
ened virtue and perfection of Fox and the whigs. It is perfectly
obvious that the American colonies were lost merely by the peculiar
_ circumstances of the cruelty and absurdity of this extraordinary min-
istry, the like of which in infamy has never been known before or
since. That is all there is in the American Revolution; and it is also
quite evident that if the plans of Fox and the whigs had been carried
- out those affectionate and long-suffering colonists who dearly loved
the British empire would have remained in it in some ideal and
friendly relation, which is not definitely described.

Mr. Trevelyan is not impressed by the difference between the
original contemporary evidence and the. subsequent innumerable
commentaries or secondary authorities. He cites one as readily as
the other; and his investigations into the original evidence appear

__ to have been very moderate. He ignores the greater part of it.

The secondary authorities suit him better, because they support the
ministerial explanation. Except for the descriptions of English

74 FISHER—MYTH-MAKING PROCESS IN . [April 18,

life and manners, his work is largely made up from the commenta-
tors. It is melancholy that a man of so much talent should sur-
render himself body and soul to this old stupidity of forever re-
writing the Revolution from the accumulating opinions of commen-
tators, which move farther and farther away from the evidence;
and now Mr. Trevelyan’s six or a dozen volumes must be thrown
into the mass to be re-hashed for another progress away from the
original evidence.

Within the last year or so, however, there has appeared an Eng-
lish history of the Revolution by the Rev. Mr. Belcher, which shows
a most decided familiarity with the original evidence and an equally
decided determination to jump out of the old whig and Annual Reg-
ister rut. He is the first Englishman that has discovered, or has
been willing to admit, that there is a great mass of loyalist evidence.
He gives his book an entirely correct title and calls it “ The First
American Civil War.” He is rather an interesting and clever phrase-
maker, after the manner that has been popular in England for some
time. But he runs on too much into mere political gossip, unrelated
details, and his book, in consequence, lacks logical sequence; an
inevitable defect, some will say, in a man of religion. But no matter
about that, and no matter about his taking a very John Bull point
of view, and safeguarding John’s face and colonial possessions. He
has jumped out of the old rut. He is in the original evidence; and
for that heaven be praised even if he only flounders in it.

Since the above paragraph was written my attention has been
called to an article in Blackwood’s Magazine (March 1912, p. 409),
attacking with very considerable severity and ridicule the absurdity
of continuing to write the history of the American Revolution
from the narrowness of the old whig point of view. It is mere
“senseless panegyric,’ the writer says. As a piece of history “it

”

belongs to the dark ages;” it represents the views of the desperate
whigs which will never again be expressed by a serious historian.
Why be so scared and timorous about the original evidence, and
why conceal it. After the first plunge and shock of the cold water
is over, you will enjoy it. The real Revolution is more useful and

interesting than .the make-believe one. The actual factions, divisions,

19121 HISTORIES OF THE AMERICAN REVOLUTION. 75

mistakes, atrocities, if you please, are far more useful to know about
than the pretense that there were none. The real patriots who hated
colonialism and alien rule in any form and who were determined to
break from the empire no matter how well it governed them, are
more worthy of admiration than those supposed “affectionate colo-
nists,” who, we are assured, if they had been a little more coddled by
England, would have kept America in the empire to this day.

_ There has recently been some discussion in the newspapers on
the hopelessness of all efforts to make good plays or even good novels
out of the scenes of our struggle for independence. Why should
our Revolution, it is asked, be so totally barren in dramatic incident
_and dramatic use and some other revolutions so rich in that use.
_ May it not be because our Revolution has been so steadily and per-
‘ ‘sistently written away from the actual occurrences, that novelists and
_ play writers when they search for material find a scholastic, academic
- revolution that never happened and that is barren of all the traits
: of human nature.

PHYLOGENETIC ASSOCIATION IN RELATION TO THE
EMOTIONS.

By GEORGE W. CRILE, M.D.

(Plates I-VIII.)

(Read April 22, I9IT.)

To the surgeon every variety of the human emotions in the var-
ious stations of life, from infancy to senility, in health and in disease
is presented. Not only does the surgeon come in intimate contact
with emotions displayed by the victims of disease and accidents but
he also observes those manifested by the remainder of the family
circle and friends. Then, too, he is unhappily forced to notice the
effects upon himself when he is waging an unequal battle against
death—the strain and worry at a crisis when a life is in the balance
and a single false move may be fatal is an experience unknown to
others as it is to the operating surgeon.

My personal experience as a surgeon and an experimental re-
search of my associates, Dr. H. G. Sloan, Dr. J. S. Austin, and Dr.
M. L. Menten, and myself furnish data for this paper.

On this occasion I shall limit my discussion mainly to the strong-
est emotion, viz., fear. I believe that it can be shown that the
emotion of fear can be elicited only in animals that utilize a motor
mechanism in defense against danger or in escape from it. For
example: the defense of the skunk is a diabolic odor which repels its
enemies. The skunk has no adequate equipment for defence or
escape by muscular exertion. The skunk has little or no fear.
Again certain species of snakes are protected by venom. They
possess no other means of defense nor adequate motor mechanism
for escape. They show no fear. Other animals because of their
prowess have but few fears. The lion, the grizzly bear, and the
elephant are examples. Animals having armored protection, as the
turtle, have little fear. It is therefore obvious that fear is not uni-
versal. The emotion of fear is felt only in those animals whose

76

CRILE—PHYLOGENETIC ASSOCIATION. 77

self-preservation is dependent upon an uncertain adequacy of their
power of muscular exertion either in defense or in flight.

What are the principal phenomena of fear? They are palpita-
tion of the heart, acceleration of the rate and alteration of the
rhythm of the respiration, cold sweat, rise in body temperature,
tremor, pallor, erection of the hair, suspension of the principal func-
tions of digestion, muscular relaxation and staring of the eyes.
The function of the brain is wholly suspended except that which

Fic. 1. The expression in this picture, copied from “ Outing,” shows the
participation of the facial muscles in physical action—perhaps it may indicate
the origin of the activity of the facial muscles in ancient fighting with teeth.

relates to the self-protective response to the object feared. Neither
the brain nor any other organ of the body can respond to any other
lesser stimulus during the dominance of fear.

From the foregoing it would appear that under the influence of
fear, most, perhaps all of the organs of the body, are divided sharply
into two classes: first, those that are stimulated, and second, those
that are inhibited. Those that are stimulated are the entire muscu-
lar system, vasomotor and locomotor systems, the senses of per-

78 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

ception, the respiration, the mechanism for erecting the hair, the
sweat glands, the thyroid gland, the adrenal gland (Cannon), and
the special senses. On the other hand the entire digestive and pro-
creative functions are inhibited. What is the significance of this
grouping? So far as we know the organs stimulated increase the
efficiency of the animal for fight or for flight. It is through skeletal
muscles that the physical attack or escape is affected; these muscles
alone energize the claws, the teeth, the hoofs, and the means for
flight. The increased action of muscles of the heart and the blood
vessels increases the efficiency of the circulation ; the secretion of the
adrenal gland causes a rise in the blood pressure; the increased
action of the thyroid gland causes an increased metabolic activity ;
there is evidence that glycogen is actively called out, it being the
most immediately available substance for the production of energy ;
the increased activity of the respiration is needed to supply the
greater requirements of oxygen and the elimination of the increased
amount of waste products; the dilation of the nostrils affords a
freer intake of air; the increased activity of the sweat glands is
needed to regulate the rising temperature of the body from the in-
creased metabolism. The activity of all of the organs of perception
—sight, hearing, smell—are heightened for the purpose of more ac-
curately perceiving the danger. It can not be a mere coincidence
that the organs and the tissues that are stimulated in the emotion
of fear are precisely those that are actually utilized in the percep-
tion of danger in a physical struggle for self-preservation.

Are there any other organs stimulated by fear except those that
can or that do assist in making a defensive struggle? I know of
none. On the other hand, if an animal could dispense with his
bulky digestive organs, whose functions are suspended by fear, if
he could, so to speak, clear his decks for battle, it would be advan-
tageous. Although the marvelous versatility of natural selection
apparently could devise no means of affording this advantage, it
shut off the nervous current and saved the vital force these non-
combatants ordinarily consume in the performance of their func-
tions. Whatever the origin of fear is, its phenomena are due to a
stimulation of all of the organs and tissues that add to the efficiency

rgtr.] IN RELATION TO THE EMOTIONS. 79

of the physical struggle for self-preservation through the motor
-mechanism and an inhibition of the function of the leading organs
that do not participate—the non-combatants, so to speak. Fear
arose from injury, and is one of the oldest and surely the strongest
emotion. By the slow process of vast empyricism nature evolved
the wonderful defensive motor mechanism of many animals and of
‘man. Now the stimulation of this mechanism leading to a physical
struggle is action, and the stimulation of this mechanism without

action is emotion.

We may say that fear is a phylogenetic fight or flight. On this
hypothesis all the organs and parts of the entire animal are inte-
grated, connected up or correlated, for self-preservation by activity
of its motor mechanism. We fear not in our hearts alone, not
in our brain alone, not in our viscera alone; fear influences every
organ and tissue—each organ or tissue is stimulated or inhibited ac-
cording to its use or hindrance in the physical struggle for exist-
ence. In thus concentrating all or most of the nerve force on the
nerve muscular mechanism for defense alone, a greater physical
_ power is developed. Hence, it is that animals under the stimulus
of fear are able to perform preternatural feats of strength. Then,
too, for the same reason the exhaustion following fear will be the
greater, as the powerful stimulus of fear drains the cup of nervous
energy, though no visible action may result. An animal under the
stimulus of fear may be likened to an automobile with the clutch
thrown out but whose engine is racing at top speed. The gasoline
is being consumed, the machinery is being worn, but the machine
as a whole does not move, though the power of its engine may
cause it to tremble.

Applying this conception to human beings of today certain mys-
terious phenomena are at once elucidated. It must be borne in
mind that man has not been presented with any new organs to meet
the requirements of his present state of civilization—indeed not only
does he possess the same type of organs as his savage fellows but
also the same type of organs possessed by even the lower animals.
In fact the present status of civilization of man is now operated
with the primary equipment of brutish organs. Perhaps the most

80 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

striking difference is the greater control man has gained over his
primitive instinctive reactions. Contrasted with the entire dura-
tion of organic evolution, man has come down from his arboreal
abode and assumed his new role of increased domination over the
physical world but a moment ago. And now, though sitting at his

Fic. 2. Note the resemblance between the facial expression in the great
efforts of the athlete and the expression of the strong emotions. The rela-
tion of motion and emotion becomes more obvious as strong motor and
emotional acts are compared. From “ Outing.”

desk in command of a complicated machinery of civilization, when
he fears a business catastrophe it is in the terms of his ancestral
physical battle in the struggle for existence. He cannot fear intel-
lectually, he cannot fear dispassionately, he fears with all of his

on
oF

le ae

=
a

ee ee

ete

r911.] IN RELATION TO THE EMOTIONS. 81

organs, and the same organs are stimulated and the same organs are
inhibited as if instead of its being a battle of credit, of position or
of honor, it were a physical battle with teeth and claws. Whether
the cause of acute fear is moral, financial, social, or stage fright, the
heart beats wildly, the respirations are accelerated, perspiration is
increased, there is a pallor, trembling, indigestion, dry mouth, etc.
The phenomena are those of physical exertion in self defense or
escape. There is not one group of phenomena for the acute fear
of the president of a bank in a financial crash and another for the
hitherto trusted official who suddenly and unexpectedly faces the
naked probability of the penitentiary; or one for a patient who
unexpectedly finds he has a cancer and another for the hunter when
he shoots his first big game. Nature has but one means of response
and whatever the cause the phenomena are always the same—always
physical.

The stimulus of fear if repeated from day to day, whether it be a
mother anxious on account of the illness of a child; a business man
struggling against failure; a politician under contest for appoint-
‘ment; a broker in the daily hazard of his fortune; litigants in legal
battle, or a jealous lover who fears a rival,—the countless real as
well as baseless fears in daily life—all forms of fear as it seems to
me, express themselves in similar terms of ancestral physical contest
and on this law dominate the various organs and parts of the body.
Anger and fear express opposite, states. Fear expresses the evi-
dence of a strong desire to escape from danger; anger, a strong
desire to attack physically and vanquish opposition. This hypoth-
esis is strongly supported by the outward expression of fear and
anger. When the business man is conducting a struggle for exist-
ence against his rivals and when the contest is at its height, he may
clench his fists, pound the table, perhaps show his teeth and he may
exhibit every expression of physical combat. Fixing the jaw and
showing the teeth in anger merely emphasizes the remarkable
tenacity of phylogeny. Although the development of the wonder-
ful efficiency of the hands has led to a modification of the once pow-
erful canines of our progenitors, the ancestral use of the teeth for
attack and defense is attested in the display of anger. In all sta-

82 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

tions of life differences of opinion may lead to argument and argu-
ment to physical combats, even to the point of killing. Physical
violence of the savage and the brute still lies surprisingly near the
surface.

There have now been presented some of the reasons based
largely on gross animal behavior why fear is to be regarded as a

Fic. 3. The attitude and the facial expression represent anger, and the
integration of the entire body for a strong aggressive action shows the extent
to which the body of man has been evolved as a motor mechanism. From
“ Outing.”

response to phylogenetic association of physical danger. I shall
now present some additional evidence in support of this hypothesis
from the clinical and the experimental side. Although there is not
convincing proof yet there is evidence that the effect of the stimulus
of fear upon the body without physical activity is more injurious
than actual physical contest which results only in fatigue without
gross physical injury. It is well known that the soldier lying under

1911.] IN RELATION TO THE EMOTIONS. 83

fire waiting in vain for orders to charge suffers more than the
soldier that flings himself into the fray; that a wild animal in an
open chase against capture suffers less than when cowering in cap-
tivity. An unexpressed slumbering emotion is measurably relieved
by action. It is probable that the various energizing substances
needful in physical combat such as the secretion of the thyroid,
the adrenals, etc., but which are not consumed in action may, if fre-
quently repeated, cause physical injury to the body. That the brain
is definitely influenced, even damaged by fear has been proved by
the following experiments:

Rabbits were frightened by a dog but not injured, and not chased.
After various periods of time the animals were killed and their
brain cells compared with the normal. Widespread changes were
seen. The principal clinical phenomena expressed by the rabbit
were rapid heart, accelerated respiration, prostration, tremors, and
a rise in temperature.

The dog showed similar phenomena—excepting instead of mus-
cular relaxation as in the rabbit the dog showed aggressive mus-
cular action. Both the dog and the rabbit were exhausted and
although the dog exerted himself actively and the rabbit remained
physically passive, the rabbit was much more exhausted.

Further observations were made upon the brain of a fox chased
for two hours by members of a hunt club, then finally overtaken
by the hounds and killed. The brain cells of this fox as compared
with those of a normal fox showed extensive physical changes in
most of the cells.

The next line of evidence is offered with some reservation but
it has seemed to me to be more than mere idle speculation. It
relates to the phenomena of one of the most interesting diseases in
the entire category of human ailments—I refer to exophthalmic
goiter or Graves’ Disease—a disease primarily involving the emo-
tions. This disease is frequently the direct sequence of severe
mental shocks or a long and intensely worrying strain. The follow-
ing case is typical. A broker was in his usual health up to the panic
of 1907. During this panic his fortune and that of others was for
almost a year in jeopardy, failure finally occurring. During this

84 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

heavy strain he became increasingly more nervous, and impercep-
tibly there appeared a pulsating enlargement of the thyroid gland,
an increased prominence of the eyes, marked increase in perspira-
tion, even profuse sweating, palpitation of the heart, increased res-
piration with frequent sighing, increase in blood pressure; there was
tremor of many muscles, rapid loss of weight and strength, fre-
quent gastro-intestinal disturbances, loss of normal control of his
emotions, and marked impairment of his mental faculties. He was
as completely broken in health as in fortune. These phenomena

Fic. 4. This picture is taken from Darwin’s “Expression of the Emotions
in Man and Animals” and expresses horror and agony.

resembled closely those of fear and followed in the wake of strain
due to fear. : .

In young women exopthalmic goiter often follows in the wake of
a disappointment in love; in women, too, it frequently follows in
the wake of an illness of a child or parent in which the double
strain of worry and of constant care is present. Since such strains
usually fall heaviest upon woman, they are the most frequent
victims. Now, whatever the exciting cause of exophthalmic goiter,
whether unusual business worry, disappointment in love, a tragedy,
or the illness of a loved one, the symptoms are alike and closely
resemble the phenomena of one of the great primitive emotions.
How could disappointment in love play a réle in the causation
of Graves’ Disease? If the hypothesis presented for the explana-

1911.] IN RELATION TO THE EMOTIONS. 85

tion of the genesis and the phenomena of fear is correct then it
would hold for the emotion of love. If fear is a phylogenetic
physical defense or escape but without resulting in muscular action
then love is a phylogenetic conjugation without physical action.
The quickened pulse, the leaping heart, the accelerated respiration,
the sighing, the glowing eye, the crimson cheek, and many other
phenomena are merely phylogenetic recapitulations of ancestral
acts.

The thyroid gland is believed to participate in such physical
activities. Hence, it could well follow that the disappointed maiden
_who is intensely integrated for a youth will at every thought of
him be subjected by phylogenetic association to a specific stimula-
_tion analogous to that which attended the ancestral consummation.
Moreover, a happy marriage has many times been followed by a cure
of the exophthalmic goiter which appeared in the wake of such an
_ experience. The victims of Graves’ Disease present a counterpart
_of emotional exhaustion. The emotions in Graves’ Disease are ab-
normally acute as illustrated by personal observation of death of a
subject of this disease from fear alone. Whatever the exciting
_ cause of this disease the symptoms of Graves’ Disease are the same;
_ just as in fear the phenomena are the same whatever the exciting
cause. In Graves’ Disease as illustrated by the photographs the
resemblance is close to that of fear. The following phenomena fear
and Graves’ Disease have in common: increased heart beat, in-
creased respiration, rising temperature, muscular tremors, protrud-
ing eyes, loss in weight; Cannon has found an increased amount of
adrenalin in the blood in fear and Frankel in Graves’ Disease;
_ increased blood pressure ; muscular weakness ; digestive disturbances ;
impaired nervous control; hypersusceptibility to stimuli; in pro-
tracted intense fear the brain cells show marked physical changes;
in Graves’ Disease analogous changes are seen. In Graves’ Dis-
ease there seems to be a composite picture of an intense expression
of the great primitive emotions. If Graves’ Disease is a disease
of the great primitive emotions or rather of the whole motor
mechanism how is the constant flow of stimulation of this compli-
cated mechanism supplied? It would seem that at some period

PROC. AMER. PHIL. SOC. LI. 204 C, PRINTED MAY 22, IQI2.

86 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

there must be secreted in excessive amount some substance that
activates the motor mechanism; then too the nervous system in
Graves’ Disease is hypersusceptible to stimuli and to thyroid extract.
It might follow that even a normal amount of thyroid secretion

ipbiahihiesttanee de

—

Fic. 5. This photograph of fear closely resembles the expression of patients a
afflicted with Graves’ disease or exophthalmic goiter.

would lead to excessive stimulation of the hypersusceptible motor :

mechanism. 2

This condition of excessive motor activity and hyperexcitability ;
may endure for years. What is the source of this pathologic ex- &
citation ? z

The following facts may give a clue, viz., in suitable cases of
Graves’ Disease if the thyroid secretion is sufficiently diminished by
a removal of a part of the gland or by interruption of the nerve and
the blood supply, the phenomena of the disease are immediately
diminished, and in favorable cases the patient is restored to approx-
imately the normal condition. The heart slows, the respiration
falls, the restlessness diminishes, digestive disturbances disappear,

soit.) IN RELATION TO THE EMOTIONS. 87

tremors decrease, there is a rapid increase in the body weight, and
the patient gradually resumes his normal state. On the other hand,
if to a normal individual extract of the thyroid gland is administered
in excessive dosage over a period of time, there will develop ner-
vousness, palpitation of the heart, sweating, loss of weight, slight

protrusion of the eyes, indigestion; in short there will be produced,

artificially, most of the phenomena of Graves’ Disease and of the
strong emotions. On discontinuing the administration of the thy-
roid extract these phenomena may disappear. On the other hand,

' when there is too little or no thyroid gland the individual becomes

dull and stupid and emotionless, though he may be irritable; but if a
sufficient amount of thyroid extract is given such a patient he may be
brought up to the normal again.

Hence, we see that the phenomena of the emotions may be,
within certain limits, increased, or may be diminished, or abolished

by increasing, diminishing, or totally excluding the secretion of the

thyroid gland.

Graves’ Disease may be increased by giving thyroid extract, and
by fear. It may be diminished by removing a part of the gland, or
by tying the blood and nerve supply, or by complete rest. Finally in
Graves’ Disease there is at some stage an increase in the size and in
the number of the secreting cells. These facts relating to the nor-
mal and the pathological supply of thyroid secretion point to this
gland as one of the sources of the energizing substance or substances
for the execution of the motor phenomena of animals as well as the
expression of their emotions.

Anger is, of course, of similar origin and is an integration and
stimulation of the motor mechanism and its accessories. Animals
having no natural weapons for attack experience no emotion or
anger, and the animals that have weapons for attack express anger
principally by energizing the muscles used in attack. Although the
efficiency of the hands of man has largely supplanted the use of the
teeth, he still shows his teeth in anger and so gives support to the
remote ancestral origin of this emotion and the great persistence of
phylogenetic association. On this conception we can understand
why it is that a patient consumed by worry—which to me signifies

88 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

the state of alternation between hope and fear—interrupted stimula-
tion, suffers so many bodily impairments and even diseases. It ex-
plains the slow dying away of animals in captivity. It explains the
grave digestive and metabolic disturbance under any nerve strain—
especially under the strain of fear, and the great benefits of con-
fidence and hope; it explains the nervousness, loss of weight, indi-
gestion—in short the comprehensive physical changes that are

Fic. 6. This is a typical picture of exophthalmic goiter, and illustrates
well its resemblance to the expression of the emotion of fear. From Ameri-
can Practice of Surgery.

wrought by fear and sexual love and hate, On this hypothesis
we can understand the physical influence of one individual over
the body and personality of another; and of the infinite factors in
environment that play a role in the functions of many of our organs
all through phylogeny and association. It is because we were
evolved as motor beings on the uncompromising law of survival of
the fittest, hence it is that we are not in possession of any organs or
faculties which have not served our progenitors in their survival in
the relentless struggle of organic forms with each other. We are
now as we were then essentially motor beings and our only way of
responding to the dangers in our environment is by a motor re-_
sponse. Such a motor response implies the integration of our
entire being for action and the activity of certain glands such as the
adrenals, the thyroid, the liver, etc., resulting in the throwing into
the blood stream substances which help to form energy, but which
if no muscular action ensues are harmful elements in the blood.

r9tr.] IN RELATION TO THE EMOTIONS. 89

While this motor preparation is going on the entire digestive tract
is inhibited. It is then clear that an emotion is more harmful than
action.
If the agency that inspires sufficiently the faith—whether the
agency be mystical, human, or divine—whatever dispels worry will
at once stop the body-wide stimulations and inhibitions which cause
lesions as truly physical as a fracture. The striking benefits of
_ good luck, success and happiness; of the change of scenes; of hunt-
ing or fishing; of optimistic and helpful friends, are at once ex-
plained by this hypothesis. One can also understand the difference
between the broken body and spirits of an animal in captivity and
its buoyant return to normal condition when freed; but time will
not permit following this tempting lead which has been introduced
for another purpose, which I may say, is one of the principal objects
sought in this paper, viz., a proposed remedy.

Worries either are or are not groundless. Of those that have a
basis many are exaggerated. It has occurred to me to utilize as an
antidote an appeal to the same great law that originally excites the
instinctive involuntary reaction known as fear, viz., the law of
self-preservation. :

I have found that if an intelligent patient suffering from fear is
made to see so plainly as to amount to a firm conviction that his
brain, his various organs, indeed his whole being could be physically
damaged by fear, this same instinct of self-preservation will to the
extent of his conviction, banish fear. It is hurling threatened active |
militant danger, whose imperious influences are both certain and
known, against an uncertain, perhaps a fancied one, or in other
_ words fear itself is an injury which when recognized is instinctively
avoided. In precisely a similar manner anger may be softened or
banished by an appeal to the stronger self-preserving instinct of the
fear of physical damage,—such as the physical injury of brain cells.
This playing of one primitive instinct against another is comparable
to the effect upon two men quarrelling when a more powerful
enemy of both comes threateningly on the scene.

The acute fears of surgical operations may be banished by’ the
use of certain drugs that depress the associational power of the
brain and minimize the evidence that usually inspires fear. If in

90 CRILE—PHYLOGENETIC ASSOCIATION [April 22,

addition the entire field of operation is blocked by local anesthesia
so that the associational centres are not awakened, the patient passes
through the operation unscathed.

The phylogenetic origin of fear is injury, hence injury and fear
cause the same phenomena—psychic shock is the same in quality and
in its phenomena as traumatic shock. The perception of danger by
the special senses as the sound of the opening gun of a battle, the
sight of a venomous snake, cause the same effects upon the entire
body and are phylogenetically the same as operations under anes-
thesia or a physical combat in that they all drive the motor mech-
anism. The use of local anesthetics in the operative field prevents
the injury currents from reaching the brain and there integrating
the entire body for a self-defensive struggle, though a part of the
brain is asleep and the muscles paralyzed, is the same as the inter-
ception of the terrifying sound of the gun, or the sight of the dan-
gerous reptile, because it prevents the stimulation of the motor
mechanism. From both the negative and positive side we find abun-
dant evidence which forces us to believe that the emotions are primi-
tive instinctive reactions representing ancestral acts which utilize
the complicated motor mechanism which has arisen through the
forces of evolution in establishing beings best suited for their adapta-
tion to their environment and for procreation.

The mechanism by which the motor acts are performed, and the
mechanism by which the emotions are expressed are one and the
same. These acts in their infinite complexity are performed by
association, 7. e., phylogenetic association. When our progenitors
came in contact with excitation in their enviromnent, action ensued
then and there. There was much action—little restraint or emotion.
Civilized man is really in auto-captivity. He is subjected to in-
numerable stimulations, but custom and convention frequently pre-
vent physical action. When these stimulations are sufficiently strong
but no action ensues, the reaction constitutes an emotion. A phylo-
genetic fight is anger; a phylogenetic flight is fear; a phylogenetic
copulation is sexual love, and so one finds in this conception an
underlying principle which may be the key to an understanding of
the emotions and of certain diseases.

LAKESIDE HOspPIrAt,
CLEVELAND, O.

__ THE NATURE OF THE JAPANESE VERB, SO-CALLED.

By BENJAMIN SMITH LYMAN.
(Read April 12, 1912.)

In the first place, what is properly a verb? The term was first
applied to a clearly defined class of Greek and Latin words, and has
ever since been supposed to belong to words of essentially similar
character in those and other languages. As the old grammars un-
dertake to describe that character, a verb is a word that signifies to
be, to do, or to suffer; that is, broadly an action; but is the definition
not so general that it might include even the words existence, action,
experience? Is a verb not more precisely and distinctively a term
that in a single word expresses not only being, doing, or suffering,
but at the same time indicates personality, time, mood and voice,
either all of them, or, at least, personality? Under personality,
‘may be included an indication not merely of the person strictly
speaking (whether first, second or third) of the subject, but its
number, and in some languages its gender. Even the so-called im-
personal verbs of Latin showed that their true subject was of the
third person, either some undefined being, as in tonwit, it thunders,
or a clause, as in placet, it pleases. It may be objected that many
parts of the English verb do not of themselves indicate personality
at all, as in: we work, you work, they work. But it can be an-
swered, even without urging that the word work is, in reality, not a
verb, that the general scheme of inflection in a language is not in-
validated by the fact that in some cases the same form recurs; as,
for example, the nominative, accusative and vocative of Latin and
Greek neuter nouns. It is, however, preposterous to set up a scheme
of inflection where all the forms throughout all the words of the
whole language are the same. To the objection that may also be
raised that the infinitive and certain other parts of, for instance, the
Latin verb do not indicate the person of the subject, it might be
answered that those parts are not strictly verbs, any more than the

91

92 LYMAN—NATURE OF THE JAPANESE VERB. _ [April 12,

word action is, and that they have only been classed under verbs
because they are in mode of formation closely connected with them,
and have at least some semblance of voice, mood, tense, and govern
any direct or indirect object in the same case as the other verbal
forms. It may, however, be admitted that for these reasons, espe-
cially the last, certain forms without the distinction of person may
be classed with verbs that have it; but it may well be considered
extravagant to set up a class of verbs which do not have in any form
whatever any indication of person.

The so-called Japanese verb is, clearly, not only lacking through- —
out every form in the essential feature of person (including num-
ber and gender), but it completely lacks also any true indication of
time, mood, or voice; only in voice is there an approach to such an
indication, which, nevertheless, is very readily explained without
recourse to the device of calling the words verbs, and is no more
marked an indication than is found in the very words existence,
action, experience, which no one pretends to call verbs. Indeed, one
of the absurdities of our foreign grammars of Japanese has been that
the same particle that was called an indication of the object (the ac-
cusative) of a verb in the active voice, was necessarily called the sign
of the subject of the same verb in the passive voice. If it be ob-
jected that, according to these principles, there would be strictly
speaking no passive voice in English, the fact may readily be ad-
mitted ; for the English passive seems really to be wholly a factitious
one, the nearest translation we can give of the Latin. |

The Japanese verb, then, is a word that indicates neither person,
gender, number, time, mood nor voice; has, therefore, not a single
distinguishing characteristic of the verbs of other languages. It is
plainly nothing but a verbal noun (like working, striking, loving),
with which it agrees in every respect, not only in the presence of the
features which it has, but in the absence of those which it has not.
Just like other nouns, it has, at times, postpositions joined to it, and
is joined to other nouns as an adjective, just as nouns are used as
adjectives in English.

This real character of the Japanese verb did not clearly appear
to me, at field-work in Japan, in 1873, until after six or eight months
of gréeenly groping, misled by the common grammars; but, then, the

1912.) LYMAN—NATURE OF THE JAPANESE VERB. 93

idea was of the greatest value in aiding progress in the use of the
language. It seemed, however, certain that a principle so ele-
mentary, important and obvious must have been long ago perceived
by professed philologists, and should have been made familiar to
schoolchildren at the outset of linguistic studies. At length, after
_ two or three months more of absence in the mountains, a return to
Tokio made possible a confident and successful search for some
previously published elucidation of the facts. It was, to be sure,
found only in one place, in a brief and much too neglected note by
the great Wm. von Humboldt on Oyanguren’s Japanese Grammar,
published by the Société Asiatique in the Supplément a la Gram-
- maire Japonaise du Pére Rodriguez, Paris, 1826. Notwithstanding
_ Humboldt’s knowledge of Japanese was doubtless very slight, com-
_ pared with what hundreds of Americans and Europeans now pos-
sess, his acumen was sufficient to perceive that the Japanese verbal
forms essentially differed from the European verb. He said

(page 6) :

“Les verbes Japonais portent moins que ceux des autres langues le car-
actére verbal, par la circonstance que leurs inflexions ne varient jamais,
quant aux personnes (gram. de Rodr., § 26); car ce qui caractérise surtout
le verbe, c'est qu’il doit toujours y avoir une personne qui y soit affectée,
tandisque les noms ne se rapportent aux personnes que dans certains cas, ou
sous certaines suppositions.”

He further points out that the subject of the so-called verb is con-
nected with the verb by the postpositions no and ga, genitive particles
turning the pronominal subjects into possessive pronouns,

“et le verbe est ainsi traité comme un nom substantif. Le Japonais n’est pas
la premiére langue dans laquelle j’ai cru trouver ce singulier phenoméne.”
On my pointing out, some weeks later, this evidence of the sub-
‘stantive character of the verb to a fellow American exile who was
beginning to talk Japanese, he said: “ But what difference does it
make whether you call it a verb or a verbal noun?” Certainly, the
recognition of the difference by name, and in fact, aids greatly in
learning the language. You, thereby, readily acquire the habit of
boldly, and to the Japanese altogether intelligibly and naturally, con-
necting the verbal noun with other nouns or pronouns by the pos-
sessive or other particles, or of using the verbal noun simply (like

94 LYMAN—NATURE OF THE JAPANESE VERB. [April 12,

any other noun) as an adjective before another substantive; and,
knowing the real meaning of the verbal noun, you do not habitually
attribute to it the distinctly different significance of a true verb, to
the greater or less bewilderment of the Japanese hearer.

The varied forms of the verbal noun to which the names of voice,
mood, and tense have been given are compounds, especially with the
so-called substantive verb, more or less closely welded into single
words. The passive voice is formed by compounding the verbal
noun with another verbal noun, of which the root is e, meaning
getting, or receiving; as, striking-getting, or striking-being-getting,
or striking-receiving, being struck, or to be struck. The passive is
sometimes used in a potential sense, and is so called; as, for example,
it is (to be) heard. Other compounds form what have been called
the indicative, imperative, conditional, conjunctive, concessive, causa-
tive and desiderative. In like manner, yet other compounds have
been called tenses, present, past and future. The so-called future,
with the termination 00, or ou, or an, en or in (so written, but really
nasal vowels), derived from amu of the older language, is some-
times more correctly called the dubitative, but is much used as we
use the future, something doubtful, or probable, being applied more
particularly to future things; but often, as our so-called future with
us, of present things; as, “it will be so,” in the case of some prob-
able explanation of a fact. The derivation of the termination from
amu seems really to show that we have here a clear case of what
some learned philologists would consider a shocking impossibility, a
derivation pointing back even to the language, or utterances, or
noises, of brute animals; though it can hardly be seriously denied
that human speech must have been originally derived from the
utterances of brutes, nor that it is wholly possible, and not a quite
absurdly extravagant supposition, that here and there some traces;
or relics, of that remote age may yet be found. The amu seems,
in fact, to be originally the h’m of doubt, a nasal with the mouth
closed, which is still used by lower animals in modern times, asa _
part of what may be called their language, the smelling of an un- a
known object. But a nasal made with the mouth open, commonly
softened to an m, is essentially a mark of rejection (as regards the ©
mouth, ejection, or a snort in the lower animals) ; that is, of denial.

1912.) LYMAN—NATURE OF THE JAPANESE VERB 95

‘The widespread use of these sounds with unchanged significance, in
different languages, seems to point clearly to a common origin of
_ the languages, in spite of differences of grammar, which, to be sure,
indicate remoteness of affinity, yet cannot make it credible that the
_ origin of human language was multiplex. Language can have had
but a single origin, and all languages must have come eventually
- from one source; and distant as may be the branching from com-
_mon stocks, it should not be considered incredible that occasional
_ traces of the original source should be found in languages of unlike
Indeed, there are many resemblances, coincidences, if you please,
between Japanese and European words; such as: mushi, an insect,
and Latin musca and French mouche, a fly. But yet more striking,
_ because more complicated, is such a resemblance as is to be seen in
the demonstrative pronouns, this (near me), that (near you) and
yonder (distant from both of us). In Japanese, though there are
_ No strictly personal pronouns, these demonstratives are respectively
_ kore, sore, are (the re appearing to mean thing), or in the adjective
pronoun forms, kono, sono, ano; in which the distinctive syllables
_ of at least the first two have a remarkable etymological likeness to
the Latin hic, iste and ille (formerly olle), as well as, for the first
_ two, the Greek éy# and ov and the Latin ego and tu. The word so
_ (according to what you have heard) is almost, or quite, identical,
_ both in meaning and sound, in Japanese and English and German;
_ but is said to be derived from shika.
_ One fundamental way of grammatically classifying languages
; ‘might be based upon the general structure of their sentences; and
_ then, further, on the welding, or not welding into terminations. A
- sentence has a subject, or theme (which is not necessarily the agent
3 of an action, the subject of the Latin verb), an agent, an object
_ (sometimes) and a verbal word. The sentence, or thesis, is a de-
scription of either the agent, the object, or the action. In Japanese,
the verbal noun, naming the action, comes last, is the goal, the
thing described by the sentence; the object (indicated by the post-
- position 0, or wo, which might be translated, in connection with)
_ comes before the verbal noun, and the agent (sometimes indicated
by the postposition ga or no, genitive particles) comes before the

96 LYMAN—NATURE OF THE JAPANESE VERB. [April 12,

object; and the theme comes first, and is sometimes also the agent,
and is indicated by the particle wa. For example: In Northampton,
the landscapes are fine; “in Northampton” is the theme, or subject
of discourse, and in Japanese would be followed by the particle wa,
which might be translated, “as to,” or “ about”’; in English, a slight

pause and a comma would take the place of that particle ; in Chinese, :

there would probably be a slight pause. In many cases, the agent
of the action is also the theme, and is followed by wa.

In English and in Chinese, the agent of the verbal action comes — =

first; then, the verb, or verbal noun; then, the object, if any, in con-
nection with which the action takes place. The object is the thing
aimed at by the whole sentence. In this important respect, there
is a strong resemblance between these two languages, which have
commonly been considered irreconcilably unlike, and which are, of
course, historically extremely distant. Evidently, languages may,
in the lapse of ages, through tribal vicissitudes and migrations, un-
dergo radical grammatical changes, and pass through stages so
wholly unlike their former condition, as to bring them into the same
class with languages that had been widely different from them.

In Greek and Latin, the agent is the goal at the end of the sen-
tence, the ultimate thing described by the whole thesis, or sentence, ©
and is closely welded to the verbal noun in the form of a personal
termination; while the object, in the accusative, precedes the verbal

noun (for example: Animum rege, qui nisi paret, imperat). The

agent (the so-called subject of the verb), in more precise form pre-
cedes the object; and, in general, may be considered the theme, or
subject of discourse, and would in Japanese be followed by the
particle za.

Of course, the personal pronoun that is so welded to the verbal —
root, in the termination of the verb, was originally a separate word,

to which that noun was, as the Japanese verbal noun frequently is,

an adjective (striking-I, working-you, loving-he), and, by degrees,
in time, became abbreviated and joined to that root in a single word.
Of course, too, other terminations were at first separate words, and
gradually, in ages of repetition, became completely joined to the root.
For example, the termination of the Latin infinitive, re, is undoubt-
edly the more or less complete remains of what was originally a

1912.] LYMAN—NATURE OF THE JAPANESE VERB. 97

separate word. When, thirty years ago, it was suggested, at a meet-
ing of the American Oriental Society, that the Latin infinitive ter-
mination re, not only meant thing, as it evidently does, but was con-
nected with the Latin word res, it was scornfully and crushingly
= objected that the infinitive originally ended in se, and was much
later changed to re. But what of that? So much the better. It
makes yet more clear the close affinity between s and r, both made in
the same part of the mouth, with the attitude of the tongue but
slightly changed. The word res may, then, very likely have for-
merly been pronounced likewise with an initial s, instead of r; and,
at any rate, the close affinity of the two sounds makes plain the
true meaning and origin of the s in the Latin genitive and plural
and nominative singular terminations, and in the English posSessive
and plural terminations. The plural termination may have been
originally a doubling of the simple singular form. Of course,
those terminations, like the verbal ones, must have been, at first,
separate words with a signification of their own. The connection
between the not yet united words must have been that of adjective
_and substantive; and the like connection, in the case of genitive, or
_ possessive, must have existed between the yet unwelded compound
and the name of the thing possessed. For instance: Charles's box
was Charles-thing box. Undoubtedly, the other Latin terminations
may eventually find a like rational and simple explanation, with like
_ originally adjectival connection.
_ It is nothing against this simple and rational explanation of the
Latin infinitive termination re, and the Latin case termination s, and
the English possessive and plural s, that even in so grammatically
distant a language as Japanese almost precisely the same sound
should be similarly used. Call it a coincidence, if you will, yet, even
SO, it is interesting. In the ordinal numbers, hitotsu (one), futatsu
_ (two), mitsu (three), etc., the syllable tsu, with a very short 4,
apparently meant originally thing. In bare counting, hi, fu, mi, etc.,
that syllable is omited. :
: Furthermore, the Japanese possessive particle, or postposition, no,
already mentioned, and translated of, is evidently in reality an ab-
breviation of the word mono, which means thing, just as those

98 LYMAN—NATURE OF THE JAPANESE VERB. [April 12,

Latin and English terminations of the same significance do. The
literal translation of Saburo no katana would, therefore be: “ Sabu-
ro-thing sword,” for Saburo’s sword; and the expression “ Saburo-
thing” would be two nouns adjectivally connected, and that expres-
sion, again, would be adjectivally prefixed to “sword.” The two
words tsu and mono, both meaning thing, may either have originally
had different origin, and been adopted into the language from dif-
ferent sources, perhaps at different times; or may have had at first
a slightly different shade of meaning. Tsu may have meant a thing
by itself, apart, independent, and be connected with tatsu, standing,
Latin stare. Mono may have meant rather a single object, or com-
bination, a united thing, the Latin unus, and the Greek pédvos, the
English one. Even in English, one is often used in the sense of
thing; as in, good ones, bad ones, little ones, big ones, young ones.
The termination ing, also, appears to have the same original mean-
ing; as, loving (Latin amare, or amase).

It is a striking coincidence, to say the least, that the German
genitive and plural terminations are not only alike, as the Latin and
English ones are, but, together with, likewise, the infinitive termina-
tion, are en, so similar to Japanese mo. The same termination
occurred in antiquated English, and less than sixty years ago, about
1854, I myself heard a countryman in Massachusetts speak of “two
housen” (that is, two housing, or house-in’, with still quite an intel-
ligible meaning). Evidently, this en termination, as well as ing, and
the antecedent separate word from which they were derived must
have had the same meaning as the termination s and its antecedent
word; and must have been more or less closely identical with the
word one and the German ein, Latin wnus, and Greek év.

The other Japanese genitive particle, already mentioned, ga,
appears to be a contraction from no-ka, the ka being, perhaps, an
indefinite something, or somewhat, like the Latin quid; and probably
the same as the interrogative particle ka placed at the end of Japa-
nese questions, as kya (allied to quid) is placed at the beginning of
‘Hindoostanee questions, plainly meaning what. Ga is defined in
Hepburn’s dictionary, not only as a “ sign of the genitive case,” but
as “designating the subject of an intransitive verb, having also an
indefinite sense; as: ame ga furu, it rains” [that is, of rain falling

1912.] LYMAN—NATURE OF THE JAPANESE VERB. 99

is] ; and “ sometimes as designating the object of a transitive verb,
same as wo [the usual accusative particle]: chichi ga nomitai, |
want to nurse, said by a child” [of milk drink-wishing is]. These
strangely mixed qualities of possessive particle, verb-subject and
verb-object are a result of calling a mere verbal noun a verb.

_ This fact of the close correspondence of the possessive, plural
and infinitive terminations in Latin, English and German is certainly
_ remarkable, even without any reference to corresponding sounds
_ with the same meaning in a language grammatically and historically
so distant as the Japanese; and should not be disregarded out of
any prejudice against noticing verbal resemblances in languages not
closely related grammatically. It appears, too, incontestable that
the terminations are derived from what were once separate words,
__ and that those words could have had no more appropriate meaning
q _ than the one here assigned.

. In English, the word of, unlike the Japanese genitive particles,
or postpositions, no and ga, is a preposition placed before its noun.
_ It appears to be closely allied to the word off, and to indicate some-
_ thing off from its noun, or its offshoot, literally or metaphorically.
_ The French and Spanish de, and Italian di, commonly translated of,
appear, however, to be the Latin de, and to mean concerning, a
_ meaning somewhat different from of and much closer to the signifi-
cance implied in the adjectival relation. The adjective is a grouper,
or indicator of a class, with its noun a specifier of a member or mem-
bers of the group; as: a good book, high mountain, country man,
spring lock, dancing school. The French say: école de danse, école
des mines, a school concerning dancing, a school concerning mines,
not off from dancing, or off from mines. In like manner: Départ-

___ ement de I’Intérieur, Department concerning the Interior; not off

from the Interior, but Interior Department, of the class, or group, of
Interior things. So, with many other phrases that are apt to be bar-
barously transferred, with mistaken desire for literalness, into
English.

Plainly, when the present terminations of Indo-germanic lan-
guages were in their original form of separate words, the connec-
tion between words was purely adjectival, as it still is in Japanese,
and as it may still be regarded in our western languages, if we bear

100 LYMAN—NATURE OF THE JAPANESE VERB. _ [April 12,

in mind the true original significance of the terminations; and all
words should, then, be considered to be strictly nouns, and to be
adjectivally connected with one another, as the parts of compound
words are always connected. The oversight of this necessary con-
nection of two parts of compound words, the first as adjective to
the second, has led to some common mistakes as to the real meaning
of the compounds, and to the impression that the order of the com-
ponent parts made no difference in the meaning. For example, it
has been supposed that the meaning of the names Theodore and
Dorothy were the same; Theodore would be God-gift, and Dorothy
would be Gift-goddess.. Spermophile, seed-loving, Anglophile, Eng-
lish-loving, Russophobe, Russian-fearing, are correctly used; but
Phil-hellene means friendly Greek, and Philander, not man-loving,
but a loving (or friendly) man. Philadelphi means friendly
brothers, and Philadelphia means friendly brotherhood, not brotherly
love. Philosophy would, accordingly, appear to be, not love of wis-
dom, but friendly wisdom, the occupation of the philosopher, or
friendly wiseman, as contrasted with that of the mere sophist; and
the modern word philology (perhaps meaning properly science of
loving) should have been logology, or glossology. That universal
acceptance and high authority are not a wholly unimpeachable guar-
anty against mistranslations is evident from flagrant errors that are
to be seen outside the range of our present subject. For instance,
a scholar profoundly versed in the Chinese language has given cur-
rency to the translation “ Middle Kingdom” for the Chinese name
of China proper; but the same expression is used in Japan for the
Central Provinces, or Home Provinces (or our Middle States, which
would be so written in Chinese), and that appears to be the true
meaning. The Japanese (or Chinese) name for Corea, Chosen, has
somehow come to be translated Land of the Morning Calm; but its
real meaning is Morning Earliness, sen meaning fresh, or new, as
recently caught fish is fresh. While Japan means Sun-rising, the
country next westward is appropriately called Morning-early. Evi- —
dently, we cannot put implicit faith in what has come from high
sources and has been widely accepted.

In Chinese, totally without welded terminations, words are plainly
connected only in the adjectival way, and as, in the writing, there

1912.) LYMAN—NATURE OF THE JAPANESE VERB. 101

are no punctuation-marks, the meaning is not always clear to a
_ beginner. We have the same source of obscurity in English, espe-
_ cially in shop-signs and brief inscriptions. A Chinaman might, for
_ example, find it difficult to know the precisely correct meaning of an
inscription on a certain wagon in Philadelphia: “The largest old
book store in the city”; or of the signs: “Circular Saw Mills”;
“Fine Fur Felt Hats”; “ North Broad Street Farmers’ Market”;
_or the advertisement-heading: “ Excelsior Straightway Back Pres-
sure Valve”; or: “ The Vare School Garden Base Ball Team.” In
the spoken language, the pauses and intonations indicate the group-
_ ing of the words and the consequent meaning. The grouping might
_ well be shown in printing with the hyphen; but that would be irk-
_ some in manuscript writing, unless the hyphen should convention-
_ ally be written with a little quirk, too small to be taken for the letter
_e, and without lifting the pen: “ Old-book store.”
It is clear, then, that the so-called Japanese verb is in reality
merely a verbal noun, and that much is to be gained by calling it by
_ its right name, and bearing its true character in mind, and remem-
:. bering that its connection with other words is precisely adjectival,
either as an adjective itself, or as the substantive to an adjective.
It is plain, too, that in European languages the terminations that
_ give to words the distinctive meaning of different parts of speech
were originally separate words connected in the same adjectival
manner to the present roots, and that the original significance of
those separate words before being welded into mere terminations
- was, in the case of the Latin and English genitive and plural termi-
nations in s and the Latin infinitive termination in se (now re),
simply thing; which, also, is the original meaning of the German
_ possessive, plural and infinitive terminations in en, and of the anti-
_ quated English plural termination in en; and of the termination ing
____ of English verbal nouns. The resemblance between the two western
_ terminations in s and en and the Japanese particles tsu and no of
_ like meaning, though not at all essential in identifying the character
__ of the terminations, is interesting, whether regarded as merely a
coincidence in languages grammatically far apart, or as possible
Telics, together with many others equally remarkable, from some
PROC. AMER. PHIL. SOC., LI. 204 D, PRINTED MAY 23, 1912.

102 LYMAN—NATURE OF THE JAPANESE VERB. [April

extremely ancient common language, leading back towards t
original human language and even towards the utterances of br |
animals. Evidently, the earliest languages must have had —
words connected purely as adjectives and substantives, as is
common in English, and is universally the case with the parts of
compounds. The English language shows that the grammar of
language may within a few hundred years become radically changed

and, in spite of historical and geographical remoteness, has —_ 2
grammatical resemblance to Chinese.

‘THE VALIDITY OF THE LAW OF RATIONAL INDICES,
_.AND THE ANALOGY BETWEEN THE FUNDA-
MENTAL LAWS OF CHEMISTRY AND
CRYSTALLOGRAPHY.

By AUSTIN F. ROGERS.
(Read March 1, 1912.)

Some fundamental law of nature governs the position of the
faces of a crystal and limits in number the faces which occur on the
crystals of any one substance. Crystal faces are designated by
intercepts on codrdinate axes, which are chosen so as to yield simple
relations. Now it is found that the intercepts of the various crystal
faces of a given substance, on each codrdinate axis taken separately,

Fic. 1. The codrdinate axes of a crystal.

usually bear a simple ratio to each other such as 1:0, 1:2, 1: 3, 2: x,
3:1,etc. Aselected face chosen because of its prominence is taken as
_a standard and the other faces are expressed in terms of it. The
selected face is called the unit face, as its intercepts on the three
_ axes establish a unit which, in general, is different for each axis, as
_ represented in Fig. 1. The intercepts of the unit face which are, in
103

i aeseeeeeiiees is oiciuesiomneaeenianienianetiessiieniiatan aie

le
me

ere
wre

104 ROGERS—THE VALIDITY OF [March 1,

general, irrational constitute the axial ratios which are constants for
each crystallized substance. For convenience in calculation the re-
ciprocal ratios of the intercepts are used. These reciprocals are
called indices or Miller indices, as Miller, an English crystallogra-
pher, was the first to make extensive use of this method. The indices
are usually simple numbers such as (110), (210), (130), (211),
(321), (441), etc., the unit face being (111).

If we examine the statements concerning the rationality of the
indices of crystal faces in text-books and treatises we find a differ-
ence of opinion as to the exact definition of the law. Some authors
insist that the indices are small whole numbers, while others simply
state the fact that the indices are whole numbers, usually, but not
necessarily small. One crystallographer, Viola,‘ goes so far as to
doubt the validity of the law of rational indices. Another investi-
gator, G. H. F. Smith,’ believes that the law of simple rational indices
is valid except in one particular instance, that of calaverite from
Cripple Creek, Colorado. But, as he shows, by assuming several
interpenetrant space-lattices it may be valid even in this case.

Thus there are three possibilities to consider: (1) The indices
are always small rational numbers. (2) The indices are rational
numbers, but not necessarily small. (3) The indices are not always
rational and the law has no meaning. This subject is such a funda-
mental one in both theoretical and practical crystallography that it
seems advisable to enquire into the history and status of the law.
Such is the object of this paper.

The credit of the discovery of the rationality of the indices is due
to Haty,® professor of the humanities in the University of Paris,
who developed it from his theory of crystal structure based upon
cleavage observations. Hatty believed that crystals are composed of
minute cleavage fragments which he called molécules intégrantes.
Primary faces, according to his view, are due to the association of
the molécules in parallel position, while secondary faces are due to
the omission of molécules on the exterior of the crystal in step-like
ie fiir Krystallographie und Mineralogie, Vol. 34, pp. 353-388

1901).

* Mineralogical Magazine, Vol. 13, p. 122 (1902).
*“ Essai d’une Theorie sur la Structure des Crystaux.” Paris, 1784.

1912.] THE LAW OF RATIONAL INDICES. 105

arrangement. According to Hatty the omission is. usually of one,
two or three, rarely of four or five rows of molécules. Fig. 2 shows
the production of an (110) face in this manner. If the cubes were
very minute the (110) face would appear to be smooth. This
epoch-making discovery laid the foundation of crystallography as an
exact science and entitles Hatiy to the title “father of crystal-
lography.” With some modification it has been the guiding prin-
ciple in crystallography since that time and should not be abandoned
unless the evidence is clearly against it.

Fic. 2. The production of an (110) face.

Some authors express the fundamental law of crystallography as
the law of simple mathematical ratio. Thus Williams* says: “ Ex-
_ perience has shown that only those planes occur on any crystal whose
_ axial intercepts are either infinite or small even multiples of unity.”
Tutton® also says: “ The indices of any and every face on a crystal
are three small numbers.” Small in these quotations is usually inter-
preted as not more than six. Faces with indices larger than six,
according to this view, are accidental and are usually relegated to
the list of uncertain forms. There is a tendency to consider forms
*“Elements of Crystallography,” 3rd ed., p. 26 (1901). Similar state-

ments are also made in the text-books of Bayley, Brush-Penfield, Moses and

Parsons, Patton, and Van Horn.
5“ Crystallography and Practical Crystal Measurement,” p. 70, 1911.

106 ROGERS—THE VALIDITY OF [March 1,

with indices at all complex as doubtful even when the measurements
indicate the form.° :
The law of simple mathematical ratio is untenable. There are

List or CrystaL Faces witn Compiex INDICES,

Angle. Meas. Cale,
Octahedrite ..... 1.1.28 A001 5° 8}/| 5° 8/| Robinson, A. J. S. (4)
‘ 12, 180.
Baumhauerite... 13,0.12 A 100 48 31 | 48 313| Solly, A@in. Mag., 13,
: 154.
PATO icra se sikess 1.44.0A 120 40 58 | 40 57 | Brunlechner, A/in.
Mitth., 12, 73.
Apophyllite ..... 51.51.50 001 63: 3: | 61 3 | Ploner, 2, Ae ae.
: 351.
Fluorite <..3..:. 19.1.1 A 100! 4 13 4 15 | Whitlock, Bull. 140, N.
. Y. St. Mus., 198.
Pile pene 19 30 | 19 32 Mauritz, Zs. kr, 39,
: 24.15.10 A 100 3655 | 36 55 363.
Tetrahedrite..... 35-35-I A110 £9 1 g | Ungemach, Bull. fr. soc.
7 - min,, 29, 251. :
Tourmaline ..... 20.19.39.I1 A IolI 63 0 | 63° T4 Worobieff, Pha Cae 33»
263.
Vanadinite ...... 43.0.43.40 (p) 41 29 | 41 29 | Schaller, Bull. 262, UV.
ORE ee S.G. S., 1398,
MM erte cs .cis ee 31.13 44.0 (¢) ‘113 17 | 13 17 | Palache and Wood, 4.
J. S: (4), 18) 385:
Pectolite.......... 1.0.25 (p) 7 29 7 323) Moses, 4. /. S. (4); 12,)
Natrojite,.......: 16,16.17 A110 64 32 | 64 33 Zarsbioniel ZS. ee 34;
581.
j 14.26.1 A O10 32 484 | 32 483 Jezek, Bull. int. Pacad.
WwW nlite, ss. cs
a esigra peniios: 63 17 | 63 18 Sci, Bohéme, ’09, 9.
Todyrite ......... 33.0. 33-2 A 0001 86 20 | 86 21 | Kraus, 4. JS: S..( 44.29;
218.
Chrysobery] ..... 11.20.20A 11.20.20 | 60 54} | 60 54}| Liffa, Zs. Av, 36, 611.
Quartz.........06. 1.30.29.29 AOIII I 26 1 25 |Gonnard, Zs. Ar., 29,
oN 323.
Strontianite...... 36.36.1 AOOI <9 I 9 | Beykirch, MW. Jd. Min.
e : Beil, Bay 53, 42%,
Danburite ..... . 0.50.1 A OOL 87 36 | 87 37 | Weber, Zs. A7., 37, 620,
Epidote........... 29.0.1 (O01 63 27 63 27 | Zambonini, Zs. ky., 37,
Sp ms 13.
Calcite....ses..0.| 49-41-90-8A49-90-41.8 / 65 29 | 65 29 | Rogers, 4. /. S. (4)
49.41.90.8 A.90.41.49.8 153 49 | 53 483) 12, 43-

hundreds of measurements to prove this statement. The accom-
panying tabulated list gives faces with complex indices for a number
of minerals, which list could be greatly extended if space permitted.

® Palache and Wood, American Journal of Science, Vol, 18, p. 355, 1904.

1912.] THE LAW OF RATIONAL INDICES. 107

These are selected because of the good agreement between the
measured and calculated angles. Outside of its position in certain
- zones the only proof of a face lies in this agreement. Ordinarily an
agreement as close as ten to thirty minutes of arc is sufficient to
establish a face. For the common form-rich minerals, such as
orthoclase, tourmaline, fluorite, magnetite, pyrite, barite, anglesite,
calcite, aragonite, cerussite, stibnite, hematite, etc., it is certain that
some of the faces have complex indices. To be convinced of this
fact let one look over the list of forms of the above mentioned min-
-erals in Goldschmidt’s “ Krystallographische Winkeltabellen.”* For
calcite one half of the forms (162 out of 325) have indices greater
than to. The law of simple mathematical ratio is hardly compatible

" with this fact.

Many crystals have what are called vicinal faces. These are
faces with very high indices which replace faces with very simple
indices. Thus apparent cubic crystals of fluorite from the north of
England are in reality bounded by faces of a tetrahexahedron with
the symbol (32-1-0). Here each cube face is replaced by a very low
four-faced pyramid. Vicinal faces are often regarded as accidental
or in some way irregular and are usually excluded from the law of
_ rational indices as they are of course inconsistent with the law of
simple mathematical ratio. As they lie in prominent zones and as
their arrangement conforms to the symmetry of the crystal on which
they occur, they can hardly be excluded from the list of faces, though
their origin is not clearly understood. The only possible argument
_ for excluding them is that the exact indices of such faces can not
always be determined, for the agreement between measured and cal-
culated angles must be exceptionally good to establish the face.
Miers® found that on alum very flat trisoctahedral faces replace the
octahedral faces. In one case the measurements indicated the sym-
bol (251-251-250). As Miers says, this form can not be regarded
as established. It may be some other form with a little different

"For recent additions to these lists see Whitlock, School of Mines Quar-
terly, Vol. 31, p. 320; Vol. 32, p. 51 (1910).
* Philosophical Transactions of the Royal Society, A, Vol. 202, pp. 459-
$23 (1903).

108 ROGERS—THE VALIDITY OF [March 1,

symbol. But according to Miers® these vicinal faces on alum prob-
-ably have rational indices.

If we decide to exclude vicinal faces where shall we draw the
line? In the zone of (hko) faces, for example, we have a large
series of possible faces. (32-1-0) is undoubtedly vicinal and so
perhaps are (25-1-0) and (20-1-0). The faces-(12-1-0) and
(10-1-0) are probably not vicinal, but what of the intermediate faces?
Such faces as (12-9-1), (3:5-11) and (11-4-7) can hardly be con-
sidered as vicinal, yet they are comparatively complex. There is no
exact definition of a vicinal face. As a matter of fact there are all
gradations between very simple indices and very complex ones, the
limit in complexity apparently being determined by the limits of
measurement. There seems to be proof of indices at least as high
as 50 (see in the tabulated list apophyllite, danburite and calcite of
forms on page 106).

Finding that the indices of crystal faces are often very large
numbers a few authors, notably Viola,?® express the opinion that the
law of rational indices has no meaning. For of course if we take
the indices large enough any plane can be expressed by whole num-
bers. It is manifestly impossible to prove by direct measurement
that the indices of all crystal faces are rational, for measurements
are subject to certain errors, the measured angle rarely ever coin-
ciding with the theoretical angle.

But, as I shall show, there is indirect proof that the indices of
crystal faces are rational numbers. Since the time of Hatity thou-
sands of crystals have been measured and among all these crystals,
which include both minerals and prepared compounds of the labo-
ratory, only axes of 2-fold, 3-fold, 4-fold, and 6-fold symmetry have

® Philosophical Transactions of the Royal Society, A, Vol. 202, p. 476.

“One reason why I am led to believe that they are really referable to
rational, although not to simple, indices is the following: During the growth
of the crystal, one set of vicinal faces is being continually replaced by another
along certain zones; ... but the change is not gradual, neither are the sur-
faces curved; one plane reflecting surface is replaced by another plane; and
although the images may for a time be multiple and confused, sharply defined
images emerge successively by the substitution of one image for another
per saltum,”

* Loc. cit., p. 363, “ Also kann das allgemeine Gesetz der rationalen Indices
keine Bedeutung fir die Krystallographie haben.”

1912.] THE LAW OF RATIONAL INDICES. 109

ever been found. Assuming that these are the only possible sym-
metry-axes it may be proved" that crystals consist of regularly ar-
ranged particles at small finite distances apart, the arrangement
about any particle being the same as about any other. In a regular
arrangement of particles of indefinite extent, there is an infinite
number of symmetry-axes, some of which are parallel to each other.
Let A, and A, be two parallel symmetry-axes with the minimum dis-
tance A,A, between them. A revolution about A, brings A, to
_ A, and a similar revolution about A, brings A, to A, By
hypothesis the distance 4,4, can not be less than A,A,. There-
fore the angles of revolution, A,A,A, and A,A.,A,, can not be
less than 60° and therefore no symmetry-axis greater than six is
_ possible. Axes of 2-, 3-, 4-, 5-, and 6-fold symmetry remain to be
considered. A revolution of 72° (4 of 360°) around A, and A,
_ brings two particles A, and A, a smaller distance apart than the
_ original minimum distance A,A,. If we take A, and A, as the
_ original particle a still smaller distance A,A, would result and so on
ad infinitum. Revolutions of 60°, 90°, 120°, and 180° are not con-
_ trary to the hypothesis of a minimum distance. Therefore only axes
_ of 2-, 3-, 4-, and 6-fold symmetry are consistent with a regular
molecular structure. While the rationality of the indices may not
_ be subject to direct proof, the symmetry of crystals can be deter-
mined by measurement. The fact that only the types of symmetry
mentioned have been discovered makes it practically certain that
crystals are made up of regularly arranged particles of some kind.
_ Other facts point to the same conclusion.
Assuming homogeneity or regular arrangement of the particles
of crystals Barlow’ has proved that only thirty-two crystal classes
or combinations of symmetry elements are possible. It is remark-
able that all but one of these classes, viz., the trigonal bipyramidal
class (one plane of symmetry and one axis of 3-fold symmetry),

*Lewis, “A Treatise on Crystallography,” pp. 136-137 (1899). Barlow,
Philosophical Magazine (6th series), Vol. 1, pp. 1-36 (1901).

* Philosophical Magazine (6th series), Vol. 1, pp. 1-36 (1901). The
thirty-two possible crystal classes were also deduced by Hessel in 1830 and
independently by Gadolin in 1867. Both of these authors base their work
_ upon the law of rational indices but Barlow’s work is based upon homogeneity
of structure.

110 ROGERS—THE VALIDITY OF. [March 1,

have been found either among minerals or prepared compounds,
Moreover, every crystal that has been carefully investigated can be
assigned to one of thirty-one out of the thirty-two possible crystal
classes.

Physicists in general assume the coarse-grainedness of matter.™
It is only fair to assume that in crystals the molecules or particles —
are arranged in a definite and regular manner. The most compre-
hensive definition of a crystal is the following: ‘A crystal is a
homogeneous solid, the physical properties of which are the same in —
parallel directions but, in general, are different in non-parallel
directions.”

It is necessary to assume a regular arrangement of particles in
order to explain many of the physical properties of crystals. On
account of the correlation between the geometrical and physical
(especially the optical) properties of crystals it is practically certain
that the crystal form is an outward expression of a regular internal
structure. A regular internal structure accounts at the same time
for the constancy of interfacial angles and for diversity in crystal
habit. It also seems impossible to explain cleavage in any other
way.

If crystals are made up of regularly arranged particles,“ the
centers of which are at small, finite distances apart, all crystal faces
necessarily have rational indices for the faces are due to the align-
ment of particles in parallel position but with the omission of par-
ticles in step-like arrangement. A whole number of particles is
always omitted.

_ The indices are not necessarily small numbers but may often be
large numbers. Even the highest indices ever assigned to crystal
faces such as the vicinal faces of adularia (500-527-0), (250-249-0),
and (200-157-0) are simple compared with the number of particles
or molecules in a crystal.

* Ricker, Report British Association for the Advancement of Science,”
IQOI, p. 12.

“The size, shape, and nature of the particles are immaterial. It is also
immaterial whether they are contact as Haity believed or widely spaced as
modern physicists are inclined to believe. So stripped is the structure-theory
of all hypothesis that it becomes a mere geometrical abstraction. It is only
necessary to assume that crystals are made up of parts.

1912.] THE LAW OF RATIONAL INDICES. i: eee

The intimate connection between rational indices, molecular
_ structure, and symmetry-axes with periods of 2, 3, 4, and 6 can not
be denied. If one is true, it is pretty certain that the others are.
true. There is direct proof of only one of these facts, viz., sym-
_metry-axes of the kinds mentioned. This is the empirical basis
upon which my argument rests. It is absolutely true that only axes
of 2-, 3-, 4-, and 6-fold symmetry have ever been found and it is
_ very probable that these are the only ones that ever will be found.
Suppose crystals with an axis of 5-fold symmetry should be in-
cluded as possible. If five-fold axes are possible, axes of 7-, 8-, 9-,
10-fold, etc., would also be possible, for the minimum possible dis-
tance between two particles excludes axes with periods greater than
6 for the same reason that it excludes those with a period of 5.
Then instead of 32 crystal classes with one gap to be filled, we
should have an indefinite number of crystal classes but with only
31 of them yet found in nature.

Even if we grant that the indices are rational numbers, crystal-
logtaphy would still be very complicated for the number of -possible
rational ratios is very large. In the orthorhombic system, for ex-
ample, there are 1,037 possible forms with indices not over Io. Yet
for the mineral topaz, which leads all orthorhombic minerals in
_ the number of forms there are only about 125 known forms. For
all orthorhombic minerals taken together there are only about 386
known forms with indices not over 10. Of all known substances
calcite has the greatest number of crystal forms, about 325 well-
established ones with about 140 uncertain ones. Only about a half
(162) of the forms have indices greater than 10,** yet the possible
number of forms in the calcite class with indices not greater than 10
is 876.

We need an explanation that will reconcile the observed fact that
the indices are usually simple with the fact that they are occasion-
ally complex, the complexity, in general, increasing with the rarity.
Such an explanation is furnished by the structure-theory of
Bravais.*° Bravais assumes that the centers of molecules occupy
the points of a space-lattice. Fourteen kinds of space-lattices, con-

* That is, h, k, and ] in the symbol Akil are not greater than Io.
#*“ Etudes Cristallographiques,” Paris (1866).

112 ROGERS—THE VALIDITY OF [March 1,

stituting various styles of crystal architecture, are necessary to
account for the crystals of various systems.

The crystal faces of most frequent occurrence are, according to
Bravais, those planes in which the points of the space-lattice are
most closely packed. These are faces with simple indices as can be
seen from Fig. 3. Faces with complex or high indices are planes
_ with the points relatively far apart (Fig. 3). It is a well-known fact

510
°
10°1°0

100

Fic. 3. The relative frequency of occurrence of crystal faces.

that the same forms are not common for every crystal even of the

same system. The space-lattice is distinctive for every crystal ex- —

cept those of the isometric system and even in this system there are
three kinds of space-lattice possible. The following statistics, com-
piled from Goldschidt’s “ Krystallographische Winkeltabellen,” will
give an idea of the relative abundance of the various forms. Tak-
ing the (Ako) zone for 206 orthorhombic minerals, thus eliminating
individual peculiarities, (010) occurs on 134, (100) on III, (110) on ~
144, (120) on 66, (210) on 48, (130) on 43, (230) on 29, (320) on
22, (310) on 20, (150) on 17, (430) on 10, (340), (530), and (410)
on 9 each, (540) on 8, (610) on 7, (560) and (350) on 6 each,
(160), (250), (520), and (10-9-0) on 5 each (650) and (750) on 4
each, (170), (710), and (740) on 3 each, (510) (970), (1-II-0O),
(1-12-0),on 2 each, and many forms including (7-11-0), (10-7-0),
(1-12-0), (16-1-0), (19-20-0), etc., on one each.

1912.] THE LAW OF RATIONAL INDICES. 113

Goldschmidt** attempts to explain the relative frequency of crys-
tal forms by a different method from that of Bravais. Assuming
(100) and (o10) as the primary faces in the zone [100:hko:o10]

_ secondary faces result by the addition of the indices. Thus adding
- 100 and o10, index by index, we have as the first complication, 110.
_ Adding 100 and 110, also 110 and o10, we have 210 and 120 as
the second complication and so on. The relative frequencies of
_ erystal forms for the hko zone are, according to Goldschmidt’s law
_ of complication, in the following order.

100 o10
Ito

210 120

310° 320 230 130
410 520 530 | 430 340 | 350 250 140
510 | 720 | 830 | 730 | 740 | 850 | 750| 540 450/570 580/ 470 | 370 | 380| 270 | 150

___ Although Goldschmidt’s law of complication accounts in a gen-
eral way for the relative frequency of crystal forms it does not
fully explain the observed facts. According to Goldschmidt (210)
and (120) should be of equal frequency as should also (310),
(320), (230), and (130). Yet (120) occurs on 66 orthorhombic
minerals while (210) occurs on only 48. The form (130) occurson
43 orthorhombic minerals while the other three forms mentioned
occur on only 29, 22, and 20 minerals respectively. Out of 206
combinations of anglesite’* (120) occurs 34 times and (210) only
twice. The explanation of these apparent discrepancies is that in
the orthorhombic system the a-axis is shorter than the b-axis and
consequently molecules are more closely packed along (120) than
along (210). Hence (120) is more frequent than (210). With
many orthorhombic crystals, for example cordierite, chalcocite,
chrysoberyl, columbite, and witherite (130) occurs to the exclusion
of (120).
_ In the monoclinic system the a-axis is either shorter or longer

" Zeitschrift fiir Krystallographie und Mineralogie, Vol. 28, pp. 1-35, 414-
451 (1897). Abstract by Moses, School of Mines Quarterly, Vol. 25, pp.
415-420 (1904). .

* Hermann, Zeitschrift fiir Mineralogie, Vol. 39, p. 478 (1904).

114 ROGERS—THE VALIDITY OF [March 1,

than the b-axis. Out of 59 monoclinic minerals with a less than |
unity, (010) occurs on 56, but (100) on only 46 while (120) occurs
on 23, but (210) on only 13. Out of 64 monoclinic minerals with
a greater than unity, (100) occurs on 60, but (010) on only 43 while |
(210) occurs on 16, but (120) on only 13. If a is shorter than b,
the molecules are more closely packed along (o10) and (120) than
along (100) and (210), but if a is longer than b the reverse is true.

Out of 168 combinations of orthoclase (including microcline)
crystals given in Hintze’s “Handbuch der Mineralogie,’ (oro) |

° * e e
ace be .
i) e e
. fs e e
. ee ° :
e °
4 49 e e
dl °
a ° .
e* e se
° 100 pa

Fic. 4. The probable structure of orthoclase.

occurs on 133, but (100) on only 22. The form (130) occurs 70
times but (120) occurs only once! This remarkable case is ex-
plained by assuming the structure to be that of the monoclinic or
clinorhombic prism, one of the space-lattices of Bravais. It can be
seen from Fig. 4 that the molecules are more closely spaced along —
(130) than along (120).

It is certainly true that the form-series differs for various crys-
tals, but according to the law of complication the form-series should
be alike for all crystals and all systems.” i,

For those who are familiar with chemistry, the whole matter —
of indices, rationality, crystal structure, and relative frequency of —
crystal faces may be cleared up by considering the analogy between
the fundamental laws and theories of chemistry and those of crys-
tallography.

# Goldschmidt (Joc. cit.) explains the differences in the form-series by —
assuming outer disturbing influences. These undoubtedly have an effect but —

certain discrepancies are more easily explained by the law of maximum —
reticulate density.

1912.] THE LAW OF RATIONAL INDICES. 115

For the crystals of any one substance the angles between corre-
sponding faces are constant. This law is known as the law of
constancy of interfacial angles. It corresponds to the law of defi-
nite proportions in chemistry.
The proportions in which two elements combine determines the
atomic weight of the elements. In an analogous way the intercepts,
which are determined by certain constant interfacial angles, establish
the axial ratio which, like the atomic weight, is a constant.
_ Crystal measurement corresponds to quantitative analysis in
chemistry. Exact measurements establish the axial ratio of a crys-
tal just as exact analyses establish the atomic weight of an element.
Two chemical elements A and B unite not only to form the com-
_ pound AB but also the compounds AB,, A,B;, A,B, etc. This fact
_ is known as the law of multiple proportions. These proportions for
most chemical compounds are usually simple but in many com-
pounds, especially those containing silicon or carbon, they are often
far from simple. Among silicate minerals we have such compounds
as Mg,Al,.Si,O., and H,,Mg,,Al,Si,0O,,. Among organic com-
pounds we have C,,H,.., C,,H.,;NO;, C.,H,,O,,, and many others
with fifty or more carbon atoms in the molecule. In spite of these
complex formule all chemists accept the law of multiple propor-
tions as an established fact. Without it chemistry would scarcely
deserve to be called a science. The law of rational indices in
crystallography corresponds to the law of multiple proportions in
chemistry. The same difficulties are encountered in crystal meas-
urement as in quantitative analysis. That is, there are certain errors
which usually render it impossible to prove absolutely the law of
rational indices or the law of multiple proportions.?® According to
Jaquet the formula of hemoglobin (of the dog) is C,5,;Hy293Ni95-
S,FeO.,,,. This formula can hardly be regarded as established. It
may be a little different but it is very probable that these elements
unite in definite proportions. This is exactly analogous to vicinal
faces such as (251-250-250) observed on alum by Miers.

The law of multiple proportions was deduced by Dalton from
his atomic theory before there were accurate analyses to prove it,

” Organic chemistry has an advantage over inorganic chemistry in that
the formulz may usually be determined by the method of formation.

116 ROGERS—THE VALIDITY OF [March 1,

just as the law of rational indices was deduced by Hatiy from his
theory of crystal structure. If chemical compounds are made up
of atoms they must necessarily unite in definite proportions. This
it will be recalled is precisely analogous to the argument used for
proof of the rationality of the indices. If crystals are made up of
particles or molecules, the crystal faces necessarily have rational
indices.

Two or more given elements do not unite in all possible pro-
portions but in a comparatively few, usually simple, proportions
which we explain by the term valence. There are but two oxids of
mercury Hg,O, and HgO which we explain by saying that the
valence of mercury is one and two. This is analogous to the limita-
tion imposed by the law of complication of Goldschmidt or the law
of maximum reticulate density of Bravais.

To complete the analogy between the laws and theories of crys-
tallography and chemistry let us consider the periodic law and its
analogue. Mendeléef, the Russian chemist, predicted the existence
of several chemical elements, scandium and gallium, which he called
ekaboron and eka-aluminum, before they were discovered. Not less
remarkable was the deduction by Hessel, a German mathematician,
of the thirty-two possible types of symmetry in crystals, assum-
ing 2-, 3-, 4-, and 6-fold symmetry-axes, in 1830, at a time when
only about half of them were known. Of the thirty-two possible
types of symmetry, only one remains to be found.

SUMMARY,

Judging from various text-books and articles a difference of
opinion exists as to the exact meaning of the law of rational indices.
Some authors limit the indices to simple numbers while others
admit that occasionally the indices are large numbers. Unfortu-
nately this question can not be decided by direct measurement of the
angles on account of errors in measurement. As crystals possess
axes of only 2-, 3-, 4-, and 6-fold symmetry they must consist of
regularly arranged molecules, or particles of some sort, whatever
their nature may be. Crystal faces, then, necessarily have rational
indices. The indices are usually small numbers but may also be

THE LAW OF RATIONAL INDICES. 117

complex, the complexity in general increasing with the rarity of the
face. The structure theory of Bravais offers a satisfactory ex-
planation of the abundance of faces with simple indices and the
rarity of faces with complex indices. There is a remarkable analogy
between the fundamental laws of chemistry and crystallography.

STANFORD University,
CALIFORNIA,
Feb., 1912.

PROC. AMER. PHIL. SOC., LI. 204 E, PRINTED JUNE 5, 1912.

DYNAMICAL THEORY OF THE GLOBULAR CLUSTERS
AND OF THE CLUSTERING POWER INFERRED BY
HERSCHEL FROM THE OBSERVED FIGURES
OF SIDEREAL SYSTEMS OF HIGH ORDER.

BY 4 Jd DES:
(Read April 19, 1912.)

(Pirates VIII (bis) anv IX.)

I. INtTRopuctTorY REMARKS.

More than a century and a quarter have elapsed since it was con-
fidently announced by Sir William Herschel that sidereal systems —
made up of thousands of stars exhibit the effects of a clustering
power which is everywhere moulding these systems into sym-
metrical figures, as if by the continued action of central forces
(Phil. Trans., 1785, p. 255, and 1789, pp. 218-226). In support of
this view he cited especially the figures of the planetary nebulz, —
and the globular clusters, as well as the more expanded and irregular
swarms and clouds of stars visible to the naked eye along the course
of the Milky Way, which thus appears to traverse the heavens as a
clustering stream. And yet notwithstanding the early date of this
announcement and the unrivaled eminence of Herschel, it is only
very recently that astronomers have begun to consider the origin of
sidereal systems of the highest order.

The historical difficulty of solving the problem of -bodies, when
n exceeds 2, which dates from the establishment of the law of —
universal gravitation by Newton in 1687, will sufficiently account
for the restriction of the researches of mathematicians to the plane-
tary system, where the central masses always are very predominant,
the orbits almost circular and nearly in a common plane, and to other
simple systems such as the double and multiple stars: but owing to ©
the general prevalence of the clustering tendency pointed out by
Herschel and now found to be at work throughout the sidereal uni-

118

-

1912.] OF THE GLOBULAR CLUSTERS. 119

_

verse, it becomes necessary for the modern investigator to consider
also the higher orders of sidereal systems, including those made up
of thousands and even millions of stars. It is only by such a com-
prehensive view of nature, which embraces and unites all types of
systems under one common principle, that we may hope to establish
the most general laws governing the evolution of the sidereal universe.
_ Accordingly, although the strict mathematical treatment of the
great historical problem of n-bodies is but little advanced by the
recent researches of geometers, yet if we could arrive at the general
secular tendency in nature, from the observational study of the phe-
nomena presented by highly complex systems of stars, operating
under known laws of attractive and repulsive forces, the former
for gathering the matter into large masses, the latter for redistribut-
ing it in the form of fine dust, the result of such an investigation
would guide us towards a grasp of problems too complex for rigor-
ous treatment by any known method of analysis.

Now it happens that in the second volume of the “ Researches
on the Evolution of the Stellar System,” 1910, the writer was able to
establish great generality in the processes of cosmogony, and to show
that the universal tendency in nature is for the large bodies to drift
towards the most powerful centers of attraction, while the only
throwing off of masses that ever takes place is that of small particles
expelled from the stars under the action of repulsive forces and
driven away for the formation of new nebulz. The repulsive forces
thus operate to counteract the clustering tendency noticed by the
elder Herschel, and so clearly foreseen by Newton as an inevitable
effect of universal gravitation upon the motions of the solar system
that he believed the intervention of the Deity eventually would
become necessary for the restoration of the order of the world (cf.
ewton’s “Letters to Bentley,” Brewster's “Life of Newton,” Vol.
II., and Chapter XVII., and Appendix X).

But whilst the argument developed in the second volume of my
“Researches” gives unexpected simplicity, uniformity and continuity
to the processes of cosmogony, there has not yet been developed, so
far as I know, any precise investigation of the attractive forces oper-
ating in globular clusters, which might disclose the nature of the

120 SEE—DYNAMICAL THEORY [April 19, am

clustering power noticed by Herschel to be in progress throughout —
the sidereal universe. Such an investigation of the central forces
governing the motions in clusters is very desirable, because it might |
be expected to throw light on the mode of evolution of clusters as —
the highest type of the perfect sidereal system. If it can be shown —
that a clustering power is really at work, and is of such a nature as —
to produce these globular masses of stars, it will be less important —
to consider the details of those systems which have not yet reached
a state of symmetry and full maturity; for the governing principle |
being established for the most perfect types, it must be held to be ©
the same in all.

II. GENERAL ExpRrESsIONS FOR THE POTENTIAL OF AN ATTRACTING
Mass. ;

If we have a mass M’ of any figure whatever, in which the law —

of density is o’ =f(#’,y’,2’), where (#’,’,2’) are the coordinates _
of the element dm’ of the attracting mass, and this element attracts .

a unit mass whose coordinates are (.7,y,2); then the element of the a

attracting mass is
dm’ =o'dx'dy'dz'. (1),

And the expressions for the forces acting on the unit mass when —
resolved along the coordinate axes become

a Ogee

oe = X= flap 3 * o'dx! dy'de', :
OU | CI 7 | a
BR ys { 1 { plac aya’ :

oU ' gl —B
fy i aca I fat Aalto
ene= [if 3— 9! dx'dy'dz',

r=V(e —2xP + —y) + — 2

The potential function itself obviously is

fie

1912] OF THE GLOBULAR CLUSTERS. 121

In spherical codrdinates we may take the angle ¢ for the longitude,
_@ for the latitude, and r for the radius of the sphere; and then the
required expressions become

«’—x=rsin@cos ¢,

y’ —y=—rsin @sin 4, (4)
2’ —z=—=rcos 6.

The element of mass dm’ defined in (1) has the equivalent form
o'd.x'dy'dz’ =o'dr-rd6-r sin 6d¢. (5)
The element of the potential due to this differential element is

a'r? sin Odrdbdd - 6)

_and the general expression for the potential becomes

r

Ra tezed - Z |
heap ; ap sin a0 { o'radr. (7)

_If we make use of the equations (1), (4), (5) in equation (2) we
“may obtain the corresponding expressions for the forces resolved
along the codrdinate axes:

A = [cos dep | sin’ a0 { o'dr,
y= Daa ds a ” sin? 0d0 12 aide. (8)

Z= [ap [cose sinadd [oar

_ These expressions will hold rigorously true for any law of density
_ whatever, so long as it is finite and continuous. In the physical
universe these conditions always are fulfilled ; and hence if these sev-
eral integrals can be evaluated, they will give the potentials and
- forces exerted on a unit mass by an attracting body such as a cluster
_ of stars, or the spherical shell surrounding the nucleus of a cluster.
| But before considering the attraction of a cluster in detail, we

122 SEE—DYNAMICAL THEORY [April 19,

shall first examine the cumulative effect of central forces on the law
of density. The problem is intricate and must be treated by methods
of great generality, but as it will elucidate the subsequent procedure
for determining the attraction of such a mass upon a neighboring
point, we shall give the analysis with enough detail to establish clearly
the secular effect of close appulses of individual stars upon the figure
and internal arrangement of these wonderful masses of stars.

III. Tue CuMuLATIVE EFFECT OF THE CENTRAL FORCES UPON THE
FIGURE AND COMPRESSION OF A GLOBULAR CLUSTER OF STARS.

Suppose a globular cluster of stars to be in a moderate state of
compression, with density increasing towards the center. Imagine
the whole of the mass at the epoch f, to be divided into two parts by
a spherical surface of radius r, drawn about the center of gravity of
the entire system; and let the external boundary of the cluster be RF,
so chosen that no star, from the motions existing at the initial epoch,
will cross the border r=R. The stars in the outer shell, between
the surfaces r and R, with coordinates («’, y’,2’), will give rise to a
potential U. Those of the nucleus or series of internal shells, be-
tween ro, and r=r, with coordinates (+, ¥, 2), will give rise to a
potential V. Accordingly we have

yy ff f 5 a’ dx' dy' ds!
a Ve — 2 4+ (0 —9 + =a

= SSS aoc ee

And the forces resolved along the codrdinate axes are

G0 ee o!(a!—x)da'dy'dz'

ao J i) i Ve — xP + (9 — IP + (2! — 2h

OU a! (9! — y)dx! dy" az!

as nae (7 — =F + Gay + ae

a2 |S fe=areo a eo

(9)

Sosa] OF THE GLOBULAR CLUSTERS. 123

with similar expressions for
OF: Ov. OO"
‘Or’ Oy’ Gz"

The integration for the mutual potential energy of the stars in
the outer shell relative to those in the central sphere of radius r
leads to a sextuple integral

ag a= f i J J J J V2 aoe oe)

And the total of the mutual attractive forces resolved along the
coordinate axes are

SSS ego e

with similar expressions for

en 6

Oy’ Oz”
Now it is easy to prove (cf. Thomson and Tait’s “ Natural Phi-
losophy,” §§ 547-548) that the sextuple integral (11) can be put into

the form
a= {ff evardyas = { ff o' Yardy ay. (13)

_ By actual derivation of the expressions (9) we easily find that
OU OV OdUeV BeUeV
Ox Ox dy Oy * Oz oz
__ is equivalent to ©, by (11), and therefore

every aU0eV _ oUeV
| ie CO ia a oy ms 7 oz )tadide = 40, (14)
ed being introduced owing to the integration over the closed sphere
“a ‘surface (cf. Williamson’s “ Integral Calculus,” edition of 1896, p.
330; Bertrand, “Calcul Integral,” p. 480).
a As the right members of (13) give the mutual potential energy

124 SEE—DYNAMICAL THEORY [April 19,

of the bodies of the system, it suffices for us to deal with the integral
of (14). This triple integral admits of transformation by Green’s
theorem (‘‘ Essay on the Application of Mathematics to Electricity
and Magnetism,” Nottingham, 1828). If U and V be functions of
x, y, 8, the rectangular codrdinates of a point; then provided U and
V are finite and continuous for all points within a given closed sur-
face S, it is easy to show (cf. Williamson’s “ Integral Calculus,” 7th
edition, 1896, p. 328; Riemann, ‘Schwere, Electricitat und Mag-
netismus,” p. 73; Thomson and Tait’s “ Natural Philosophy,’ Part
t. Vol, 1... p. 167 ; Bertrand, “Calcul Integral,” p. 480):

eUeV oUaV aVaV\ ,
Sl (eer + Bo oy t be a: ) aie
ev ev av
ee {fF u( Sa oe + So) dedyde (15)
oO oC?
-({v ne f f ‘ V( Se en sat 53) axdydz.

The case in which one of the functions, U for example, becomes
infinite within the surface S was also considered by Green, and is of
prime importance in the present investigation of the theory of globu-
lar clusters. To simplify the treatment, suppose U to become in-
finite at one point P only; then infinitely near this point U may be
taken as sensibly equal to 1/r, where r is the distance from P.
Imagine an infinitely small sphere, of radius a, described about P
as a center. Equation (15) obviously is applicable to all points
exterior to this little sphere. Moreover, since

oO fog ae

(sat sta); —° a8

it is clear that the triple integral of the right members of (15) may
be supposed to extend through the entire enclosed space S, since the
part arising from the points within this little sphere is a small quan-
tity of the same order as a?, and therefore of the second order of ©

small quantities.
Moreover, since near P the function U is sensibly equal to 1/r,

agra] OF THE GLOBULAR CLUSTERS. 125

2 é
the part of f ae U - aS due to the surface of the sphere is in-

"finitely small of the order of the radius a, which is of the first order of
small quantities, and may therefore be neglected. It only remains,

So es Re (17)

"the integral over the sphere S=4za? will become

ff vSpas=ffv(-3) dare) = — anv. (18)

Accordingly, the equation (15) becomes

[ff E+ e+ ea aoe

ets oa 8-Sff U( Get et Se) axdyds (19)
ll is asf ff v( Set Sy t ee) eras =

—4rV’.

In these formule, as before, the triple integrals extend through the
hole space, and the double integrals over the whole surface. If V
had become infinite, instead of U, there would have been the corre-
sponding term —47U’ to be added to the right member of (19).

Now in a globular cluster of stars subjected to the mutual gravi-
tation of its components over long ages, many close approaches will
eventually develop: and they may depend on the wandering of stars
within either the outer shell or the central sphere, or from the shell

126 SEE—DYNAMICAL THEORY [April 19,

to the sphere or vice versa. Therefore both U and V may become a s

infinite from the appulses of stars under the secular effects of the _
mutual gravitation of the stars of the cluster. If we denote by y?U — q
and vy?) the Laplacean operation indicated in (16), as applied to the
functions U and V, the right members of equations (19) and (20)
when modified to include the appulses accumulating in a cluster over
long ages, become

JJ Yes Sff eae
o {rs yn f f f Vg )dedyds — an V4.

In our present problem the triple integrals may be neglected, since
vy’/ and y?U are each zero, or evanescent, in the small spheres
where the appulses occur, and even here are small quantities of the
order a?. Hence by (14) the secular equations become

auav eveV , aveV
spies ={[f(S ox t Oy Oy t & 3g ) daly
fa) ixi ;
-[f Vo aS —D anv} (22)

fot

Oo ti
-{f{ Ue ee an. (23)
nN i=l

Over very great intervals of time, to be reckoned, as Herschel

(21)

believed, in “ millions of ages,’ the number of appulses may be taken |

to be proportional to the time in either the original shell or the
original sphere. Consequently instead of the summations in the
right members of (22) and (23) we could introduce terms depending
directly on the time, and thus write 7

a
ana— ff V dS —4nV' ot 1)

= { {05,4400 -BU-1) a

1912.] OF THE GLOBULAR CLUSTERS. 127

where a and £ are positive numerical coefficients in the form of unde-
termined multipliers.

Now it is significant that to the surface integrals negative terms
are attached increasing at rates proportional to the time. The second
‘members of (24) cannot therefore be constant, but must decrease
with the time. As U and V depend on the codrdinates at the initial
epoch ¢,, and the derivatives and oe depend on the same ele-
ments, a progressive decrease in the double integrals, to satisfy the
right members of (24), implies that the codrdinates of the entire
system must so change that the surface S decreases. Thus the glob-
ular cluster undergoes a secular compression, owing to the accumu-
lation of appulses, and the shrinkage of the bounding surface.

It is well known that under the operation of universal gravitation
the bodies of a system, starting from any initial distribution, tend to
fall together, so that the potential energy diminishes. When the
number of bodies is very large it becomes impossible for the motions
to be simply periodic, like that of a planet or comet moving in a
Keplerian ellipse ; but although the nature of the non-reéntrant orbits
cannot be predicted by any known method, it is possible to say that
the potential energy of the system fends incessantly to a minimum,
hile the maximum of the total energy becomes kinetic, and is ex-
pended in producing large velocities of the bodies. The left member
of (24) therefore incessantly decreases, owing to the exhaustion of
the potential energy. This accords with what, on purely mathemat-
ical grounds, we found to be the effect of appulses, on the right
member of (24). Hence universal gravitation acts as a clustering
power, and when the figure of a cluster is rendered globular, the
dimensions of the system is further diminished under the secular
effect of appulses and exchanges of velocities going on within the
mass of stars.

: In view of the above considerations it is evident that the right
_ member of equations (24) should include independent negative terms
to take account of the effect of general shrinkage, without regard
to appulses due to close approach. Thus the final forms of these

128 SEE—DYNAMICAL THEORY [April 19,

equations become:

oU
ana= f [ V5, dS—4nV!alt—14)— 2-4) os a
= { { 05, 45—4n0"-B _
= By 2) — 47 U': Bit — 4) — BYE — &),

where a’ and ’ are positive numerical coefficients in the form of
undetermined multipliers. The first of these negative terms depends
on appulses due to close approach, the second on the general shrink-
age due to the mutual attraction of the stars of the cluster at all
distances.

The action of the clustering power upon the figure of a cluster,
as Herschel remarked (Phil. Trans., 1789, p. 219), is analogous to
that of gravity on the figure of a planet. It might be compared also
to the well-known effect of surface tension on the figure of a drop
of dew or a drop of mercury, etc. In these last phenomena the sur-
face is made a minimum, for a given volume, by the restriction of the
elastic layer constituting the outer boundary. A soap bubble is also
a good illustration of such minimal surfaces, the mathematical theory
of which has been placed on a strictly rigorous basis by the researches
of the late Professor Weierstrass, one of my most revered teachers
at the University of Berlin. In the case of the clusters, however,
we have not only a tendency to minimal surfaces, but also for such
an internal arrangement of the stars with increase of density towards
the center as will reduce the potential energy of the system to a mini-
mum. The theory of the clusters is therefore much more complex
than that of simple minimal surfaces, such as we see in drops of
dew or soap bubbles, to which the analysis of Weierstrass is applicable.

In the case of the minimal surfaces of the type rigorously treated
by Weierstrass, the determination of the minimum is found by the
usual condition in the calculus of variations,

Su ==0, (26)

where the function u—y(.,y,2) represents the surface.
In the more general problem of clusters, the determination of the —
minimum potential energy applies to every shell as well as the exter-

1912.] OF THE GLOBULAR CLUSTERS. 129

nal surface, and thus for the 7 concentric shells we have

fs28
3(Xu) =o, (27)
i=1

where ui = yi(+,y,2) is the equation of any surface.

- Moreover, the clusters involve two additional conditions, the first
being that in each layer the density o; shall depend wholly on the
radius, and not at all on the angles (¢,4) usually used in polar co6r-
dinates. If any point in any layer be taken as a pole it suffices to
regard simply the new polar angle @; and the required condition is

ney = 0, (28)

_ where oi =y (1, 0,¢) is the law of density in any shell, the new angle
6 alone being sufficient where there is no fixed pole. The second
condition is that the law of density as respects the radius shall be
: suitable and the same throughout the mass; so that in every part the
- form of the density function does not vary as respects the radius:

oiw(r, 8
ive. @. #1 =

_ The actual arrangement in any given cluster may not be perfect, but
_ nature always and everywhere works towards the fulfillment of these
_ conditions.

JV. Tue Osservep Law or Density IN GLOBULAR CLUSTERS.

_ In the Monthly Notices of the Royal Astronomical Society for
March, 1911, Mr. H. C. Plummer, of Oxford, has an important
_ paper “On the Problem of Distribution in Globular Star Clusters.”
For earlier data on the distribution of stars in clusters he refers to

a statistical paper by Mr. W. E. Plummer (Monthly Notices, June,
1905, Vol. LXV., p. 810), and to the much earlier investigations
by Professor E. C. Pickering (Harvard Annals, Vol. XXII.) and
Professor Solon I. Bailey (Astronomy and Astrophysics, Vol. XIL.,

Pp. 689). :

130. SEE—DYNAMICAL THEORY [April 19,

Among the results cited from the researches of Pickering and
Bailey are these:

1. The law of distribution is essentially the same for different
clusters.

2. The bright stars and faint stars of a cluster obey the same law.

Mr. H. C. Plummer also availed himself of the important re-
searches of Dr. H. von Zeipel on the cluster Messier 3 (Annales de
l’ Observatoire de Paris, Tome XXV.), in which a method was de-
veloped for finding the law of distribution of the stars in space, from
the observed law of distribution in the projection as we see it. Dr.
von Zeipel effected this transformation by means of a theorem due
to Abel. He subsequently compared his results for Messier 13 and
Omega Centauri with the densities to be expected in a spherical —
mass of gas in isothermal equilibrium.

In his paper of March, 1911, Mr. Plummer investigates the law
of density for the clusters Omega Centauri, 47 Toucani, and the
great cluster in Hercules (M. 13). By the use of von Zeipel’s
method he finds that in these three clusters there is a very good
agreement as respects the law of density. In the accompanying
table we give the ten points of Plummer’s empirical curve of den-
sity, based on recent photographs. For the sake of comparison
we give also the corresponding points for the laws of density and
pressure for a sphere of gas following the monatomic law and in
convective equilibrium, as developed in the writer’s researches on
the “ Physical Constitution and Rigidity of the Heavenly Bodies ”
(Astron. Nachr., Nos. 4053, 4104). The nature of these three laws
is best understood from the accompanying illustration, Fig. 1.

1. The cluster density is greater near the boundary, the curve
tending to become asymptotic, as there is no definite boundary to
the mass of stars.

2. The cluster density also appears to be relatively greater near
the center, so that the curve intersects the monatomic curves in the
outer parts of the radius but again unites with them at the center,
after falling and pursuing a different course between the surface and
the center.

3. As the apparent density of the stars in a cluster is consider-

1912.]

Center
0.0
0.1
0.2
0.3
0.4
0.5
0.6
0.7
08
0.9
1.0

OF THE GLOBULAR CLUSTERS.

Part of Radius, or Plummer’s Law of
Distance from Densi

ity in Star
lusters

1.00
0.87
0.63
0.38
0.24
0.145
0.085
0.062
0.035
0.025
0.020

See’s Law of Densi

in Sphere of Atca< See’s Law of Pressure in
atomic Gas in

Convective

Equilibrium

1.00
0.97
0.90
0.74
0.58
0.42
0.28
0.161
0.008
0.0025
0.0000

131

Sphere of Monatomic Gas
in Convective Equi-

librinm,
1.00
0.95
0.80
0.60
0.40
0.235
0.118
0.048
0.014
0.002
0.000

be

SS

ee

Fig. 1.

LZ

3

rd

OG

os

a3

Illustrating the internal arrangement of a globular cluster.

is

182 SEE—DYNAMICAL THEORY [April 19,

able, and the images spread somewhat on the plate, it is possible
that longer photographic exposures or better plates, on which the
images do not spread, would give relatively more stars in the region
of the middle of the radius of the cluster, and thus bring the law
of density for clusters into essential agreement with the monatomic
law of density.

Further photographic observations, with the best modern instru-
ments, alone would decide this question. A final decision can not
be made yet, but in order to have the judgment of the best con-
temporary astronomical photographer on the subject, I have recently
referred the question to Professor W. S. Adams, acting director
of the solar observatory at Pasadena, who reports as follows:

“T regret that I cannot give answers which would be at all conclusive to
your questions regarding the distribution of the fainter stars in star clusters.
Up to the present time only a few counts have been made upon our photo-
graphs. So far as these go, they do not appear to show any tendency on the
part of the fainter stars to predominate around any particular portion of the
radius of the cluster, but rather for the distribution to be tolerably uniform.
The problem is made difficult by the fact that the central part of our photo-
graphs is almost always burned out, so that counting is impossible for some
distance along the radius. We have begun, however, to take series of photo-
graphs of clusters, giving exposure times with a ratio of 1 to 2.5. These
should help greatly in providing an answer to your questions.”

Cn the whole the indications are that the capturing process of
drawing in stars from without is still going on. This would ac-
count for the small density near the outside of the cluster, and also
the great central density, the latter being an accumulative effect of
the various shells in the course of millions of ages.

V. THe PoreENTIAL DUE TO A MAss OF GLOBULAR FIGURE
ASSUMED UNDER THE ACTION OF CENTRAL POWERS.

In my “ Researches,” Vol. II., 1910, I have outlined the process
by which the nebulze form by the aggregation of dust from a dis-
tance; and shown that the collecting streams may often take the
spiral form, and in this early stage are not of symmetrical figure.
The general integrals in Section II. are required to express the at-
traction of these unsymmetrical masses. But in true sidereal sys-
tems as old and fully developed as the globular clusters are known

1912.] OF THE GLOBULAR CLUSTERS. 133

to be, a state of very perfect symmetry has been attained through
the oscillations of the entire mass, and the mutual adjustments of the
parts of the system, and by the rounding up of the orbits under the
secular action of the resisting medium, as implied in Plato’s remark
that the Deity always geometrizes—o @éos dei yewpuérpe. On this
latter process I have dwelt at some length in an address on “ The
Foundations of Cosmogony,” delivered to the St. Louis Academy
of Sciences, May 1, 1911, and printed in the Memorie delle Societa
degli Spettroscopisti italiani, Rome, Vol. XL., 1911; and in another
address entitled “ The Evolution of the Starry Heavens,” delivered

_ to the California Academy of Sciences, Aug. 7, 1911, and printed in

Popular Astronomy for November and December, Ig11.
Herschel’s theory of the spherical figures of clusters (Phil.
Trans., 1789, p. 217), conceived as made up of a series of concen-
tric shells of uniform density, but with increasing accumulation
towards their centers, is confirmed by modern photographs of vari-
ous clusters as shown in the accompanying plates from my “ Re-
searches,” Vol. I]. The attraction of a mass of this kind thus be-
comes similar to that of a sphere made up of concentric homo-
geneous layers, but with the density increasing towards the center.

-The integration for the central attraction in these perfectly sym-

metrical figures thus need not involve @ or ¢, but only the radius r.

If o, be the central density of the cluster, and o the density at
any point whose distance from the origin of the coordinates at the
center is x, a shell of density o and thickness dx will have the mass

dm = 4rox*dx. ( 30)
And the sphere enclosed by this shell will have the mass

m= an f oxdr = t10,2", (31)
0

where oa, is the average density of the enclosed layers included be-
tween +0 and r=. Thus we have

mg Os aie (2) ar. (32)

At the surface of the cluster the gravity of the entire mass will

PROC. AMER, PHIL, SOC., LI. 204 F, PRINTED JUNE 5, I912.

134 SEE—DYNAMICAL THEORY [April 19,

become

M
mn al (33)

where J/ is the mass of all the stars and +’ the exterior radius of
the cluster. If G’ be the value of the force of gravity of the cluster
at any point below the surface, at a distance + from the center, we

shall have
» 400, ["(o\ ,
G’ = a if (2) san (34)

The outer shell of the cluster is here neglected as exerting no attrac-
tion on a point within, as was long ago established by Newton for
homogeneous solid bodies (cf. “ Principia,” Lib. I., Prop. XCL.,
prob. XLV., Cor. 3).

To find the ratio of G’ to G so as to give the law of central force
within the cluster, we have the relation

4ro, ("(o Eee ae 3
G or [ (2) 30, | (= ) sar

p Coe Le
x Pe 3 0
darg ! . —— a'x*— — | 2dr
370, a wh :

x

|
I

(35)

The evaluation of this ratio depends on the integrals between the
assigned limits, one corresponding to the entire sphere of radius 2’,
and one to the part of the sphere included within the radius x.
Thus the integrals depend on the law of density in the cluster. We
have already seen from the researches of Dr. H. von Zeipel, and
Mr. H. C. Plummer that the accumulation of density towards the
center appears to slightly exceed that of a sphere of monatomic gas
in convective equilibrium and fulfilling adiabatic conditions (A. N.,
4053, and A. N., 4104).

Although the monatomic law may not hold strictly true in clus-

(1922) OF THE GLOBULAR CLUSTERS. 135

ters, yet it seems worth while to examine the results which will
_ follow from this law. In 4. N., 4053, p. 327, it is shown that

(om
a, dx’ (36)

_ where the expression for p, with the correction noted in A. N., 4104,
—p. 386, is

. ee 2 192"! 27194"
¥= 207 240 3888 1425600 4447872000
206212" 1933282"
a 800616960000 ‘1905 46836480000 (37)
| 396673642" 80781243412"

a. erase <:,

1042672289218560000 5911951879869235200000
Now if we substitute the value of o/c, from (36) in the integrals
of (35), they are reduced to two series which may be called yp and p’,
_ the latter having the same form as (37) but the limit 2’ instead of -r.
_ Accordingly (35) becomes

o ke Ca ca

eS sa ot non yest |

Gee: see ae oe x”
#|7-5+20- at]

NG ete Eg (38)
Sere ey

320 1 240 3888

_ As the coefficients of the series » and yp’ are the same, we may cal-
culate from the equation (37) or (38) the value of the ratio at
_ suitable intervals throughout the sphere, and ascertain rigorously
the law of the variation. The results of my calculations are given
in the following table and illustrated by the corresponding curve
in Fig. 1.

136 SEE—DYNAMICAL THEORY [April 19,

TABLE SHOWING DECREASE OF CENTRAL GRAVITY IN A SPHERE OF MONATOMIC
GAs IN Convective EQuILisrtuM. THE DECREASE OF CENTRAL GRAVITY
IN A GLOBULAR CLUSTER IS SLIGHTLY LEss RApip, OWING TO GREATER
ACCUMULATION OF DENsIty ToWARDS THE CENTER.

Distance from Center, Ratio of Internal Gravity to Surface Gravity.
tial a
ee G
1.0 1.00000
0.9 : 0.92563
0.8 0.84378
0.7 | 0.75495
0.6 0.65975
0.5 0.55928
0.4 0.45317
0.3 0.34769
0.2 0.23069
0.1 0.11587
0.0 0.00000

VI.. DyNAMICAL STATE OF A GLOBULAR CLUSTER.

In works on the theory of potential and attraction the following — |
theorems are demonstrated and well known: } < oe

1. That a sphere either homogeneous or made up of concentric
spherical shells attracts an external point as if collected at its center
(Newton’s “ Principia,” Lib. I., Prop. LXXVI., Theorem XXXVI.).

2. That homogeneous spherical shells attract external points as
if collected at their centers of figure, and exert no attraction on
points within (“ Principia,’ Lib. I., Prop. LXX., Theorem XXX.).
Also a point within the sphere is attracted by a force proportional
to the distance from the center (“ Principia,” Lib. I., Prop. LXXIIL,
Theorem XXXIII.); and the same theorem holds for the spheroid
made up of concentric spheroidal shells (“ Principia,’ Lib. I., Prop.
Pil trop, AL Vi,

3. That ellipsoidal homeoids, or ellipsoidal shells of any thick-
ness made up of homogeneous layers, bounded by two ellipsoidal
surfaces, concentric, similar and similarly placed, likewise exert no
attraction on points within, as is shown by Newton in the “ Prin- —
cipia ” (Lib. I., Prop. XCI., Prob. XLV., Cor. 3) for the case em
the spheroid, which corresponds to the figure and internal arrange- _
ment of density in such bodies as the planets, sun, and stars. _ :

1912.] OF THE GLOBULAR CLUSTERS. 137

To illustrate the simple case of a homogeneous sphere, we re-
mark that it attracts a point at its surface with a force

Tor ‘
f= : > = $uor = Cr, (39)

where o is the density, and r the radius. This equation shows that
all points within the sphere are attracted to the center by forces
_ proportional to the radii of the shells on which they are situated,
‘since the external shells exert no attraction on points within.

Let the solid sphere be set rotating steadily about an axis; then
as the central forces at the various points are proportional to the
radii described by the points, there will be no tendency arising from
the central attraction for any shell to be displaced with respect
-to the shells within or without, once the condition of equilib-
rium is attained, but the central accelerations will everywhere tend
_to secure steady motion without relative displacement of the parts
of the sphere. The same is true of the centrifugal force, after the
adjustment to a suitable figure of equilibrium; for the centrifugal
force is equal to v?/r, v being the velocity of the particle and r the
radius it describes; for this gives

i, me A? (40)

and as it is common for all particles the force has the same form
here as in equation (39).

What is here proved for the simple case of the homogeneous
sphere, will obviously hold also for a sphere made up of concentric
spherical shells of uniform density ; for the theorem will hold for all
the points within. And similarly for ellipsoidal homeoids, or sphe-
roids such as the planets, sun and stars. If any of these masses
have attained uniform movement as of rotation, there is no tend-
_ency to produce a relative displacement of the parts.

Now the simple equation (39) shows that a similar theorem
holds for the internal dynamics of a globular cluster, the component
stars of which have attained a state of equilibrium following a
_ definite law of density depending only on the radius. But before

138 SEE—DYNAMICAL THEORY [April 19,

treating of this at length, we shall recall a suggestive investigation of
Sir William Herschel printed in the Philosophical Transactions for
1802 (pp. 477-502) under the title “ Catalogue of 500 New Nebule,
Nebulous Stars, Planetary Nebulz, and Clusters of Stars; with Re-
marks on the Construction of the Heavens.”

VII. Herscue.t’s THEOREM ON THE Motion OF MULTIPLE STARS
’
1802.

In the important paper just cited Herschel first discusses
“ Binary Sidereal Systems or Double Stars,” and then proceeds to
Section “III. Of more complicated sidereal systems, or treble, quad-
ruple, quintuple and multiple stars,’ where he reasons as follows:

“Tn all cases where stars are supposed to move round an empty center, in
equal periodical time, it may be proved that an imaginary attractive force may
be supposed to be lodged in that center, which increases in a direct ratio of
the distances. For since, in different circles, by the law of centripetal forces,
the squares of the periodical times are as the radii divided by the central
attractive forces, it follows, that when these periodical times are equal, the
forces will be as the radii. Hence we conclude, that in any system of bodies,
where the attractive forces of all the rest upon any one of them, when reduced
to a direction as coming from the empty center, can be shown to be in a
direct ratio of the distance of that body from the center, the system may
revolve together without perturbation, and remain permanently connected
without a central body.”

This reasoning is best understood by means of simple formule:
Let f, and f, be two centrifugal forces, which in revolving systems
are always equal to the centripetal forces, and V, and V’, the cor-
responding velocities of the bodies, and 7, and r, the radii of the
circles in which they are supposed to revolve. Then, by the ele-
mentary principles of mechanics, we have

2 2 2 2
pat oes (2777) (277)
pe PE 2 32: Sohence i: = =
ti r, ) q5 a ) whe J; Be ) i; Lie
This gives

4T’r, 4T’r,

£? th : (41
1 5G 7, )

Now in orbital revolution the centripetal and centrifugal motions

at. OF THE GLOBULAR CLUSTERS. 139

are always exactly equal, and hence if ¢, =t,, we have

Pe ke he on
——e fw, OF,
ele eee Tae 2 eS
whence
hgh
5 as (42)

as concluded by Herschel in the Philosophical Transactions, for
1802, p. 487. .

To establish clearly such actual cases of motion, with the attract-
ive force in the direct ratio of the distance from the empty center,
where he says the system may revolve together without perturba-
tion, and remain permanently convected without a central body,
_ Herschel proceeds to deal first with two equal double stars re-
- volving in circles about the common center of gravity of the sys-
tem. He next generalizes the procedure by taking two unequal
masses, then treats also the cases of motion in elliptic orbits, and
finally considers certain types of triple and multiple stars, to which
similar reasoning will apply. This paper of Herschel is quite re-
markable, and deserving of more attention than it has received.

VIII. THEOREM ON THE REVOLUTIONS OF STARS IN CLUSTERS.

It is now obvious that the clusters which have attained a definite
law of density depending wholly on the radius will conform to
_ Herschel’s Theorem of motion about empty centers, which is also

the law for the central motion of particles of a rotating solid. If
we imagine a heterogeneous sphere made up of concentric homo-
_ géneous layers, but with the density of the layers increasing towards
the center, and take the radii of the layers to be r,, r., r3,. . . ri, and
denote by o,, 02, 03, . - . oi the average density of the sphere up to
the ith layer inclusive ; then the attraction on points in these several
layers will be A,, A,, A;, . . - Ai, as follows:
3

—T = O73; 4,= Coz; 4s= Cai +--+} A= Cr (43)
Thus the constant will vary from layer to layer in a heterogeneous

140 SEE—DYNAMICAL THEORY [April 19,

sphere made up of concentric homogeneous shells, but the attraction
at every point, including the external surface, is proportional to the
radius of the shell in question.

Now just as a sphere, either homogeneous or made up of con-
centric layers of uniform density, attracts all internal points, in-
cluding those at the external surface, with a force proportional to
the radius of the shell on which it is situated; so also will a cluster
which is condensed towards the center according to any law of
density depending wholly on the radius, attract all internal points,
including those in the external surface, according to the same law
of direct proportionality to the distance from the center.

When the attractive force varies directly as the distance from the
center, the particle so attracted describes an ellipse as was first
proved by Newton in the “ Principia” (Lib. I., Prop. X., Prob. V.).
This case of attraction depending directly on the first power of the
distance is also discussed by the analytical method in Vol. II. of my
“ Researches,” I910, pp. 25-27, where it is shown that the time of
revolution is quite independent of the dimensions of the ellipse, but
depends wholly on the intensity of the central force.

For motion in a plane the coordinates of the particle are shown
to be defined by the equations:

a ated a V pt + acos V pt, Pes Monta
V

Ve ‘fe

sin V ut. (44)

As the values of the codrdinates are the same at the time ¢ and

20 2T
t+—=, it is evident that the time of revolution is——, or inversely
B ‘

Ve
as the square root of w, where p» is the mass, and exerts the corre-
sponding unit of force at unit distance.

In a cluster with stars arranged according to a law of density
depending wholly on the radius, the value of » or the force will
depend wholly on the radius also, as shown in equation (34). And
thus the time of revolution will be independent of the dimensions of
the ellipse. Assuming that there is but little relative displacement
of the bodies of the clusters, a star situated, therefore, in an outer

1912.] OF THE GLOBULAR CLUSTERS. 141

shell will revolve about the common center of gravity in exactly
the same time as one situated near the center; for the remoter stars
_ revolve under a greater attractive force, while the nearer ones
revolve under feebler forces, and all would therefore have a com-
mon period. The movement at the end of the period would restore
the cluster to its original state, the individual bodies being exactly
where they started from at the initial epoch. This is one of the
_ most remarkable results of the dynamics of a system of n-bodies
_ arranged in concentric shells of uniform density, depending wholly
on the radius, as in our typical globular clusters, which are made

a up of stars of equal brightness and apparently of equal mass.

If therefore the cluster were once established with such rela-

. : tions among the stars that their orbits do not intersect, and the

sphere of powerful attraction for each star is small compared to
__~ the spaces between the neighboring stars, the wonderful system thus
a arranged might oscillate in stability for millions of ages. These

: a conditions evidently are quite fully realized in the globular clusters,

as will more clearly appear from the following considerations on
_ their mode of formation.

IX. THe SYMMETRICAL GROWTH OF A CLUSTER DUE TO A PROCESS
OF INTERNAL COMPENSATION.

In the second volume of my “ Researches,” 1910, it is shown by a

line of argument based on the principle of continuity, similar to

that used by Herschel in the Phil. Trans., 1811, p. 284, that the
_ nebulz are formed by the gathering together of dust expelled from
_ the stars under the action of repulsive forces. As this dust gathers

towards a center so as to form a nebula or cluster, of more or less

symmetrical figure, it takes a long time for the new system to acquire
an arrangement by which the density increases from the surface to
the center. In the course of ages, however, the central mass in-
creases or the central group of masses accumulate, by accretion of
dust to the individual bodies, or by the capture and redistribution
_ of interpenetrating bodies. The result, on the one hand, is that all
a orbits will be decreased in size and the system will contract its di-
‘= mensions ; and, on the other hand, this waste matter will tend to ac-

142 SEE—DYNAMICAL THEORY [April 19,

cumulate in regions of stability, and there build up the smaller into 4

larger bodies. Thus the individual stars being supplied from such
varied sources the cluster will necessarily acquire increasing sym-
metry, and orderly arrangement, like those actually observed.

This natural tendency to order and stability will be greatly aug-
mented by mutual compensation among the stars of the cluster. As
the stars are both gaining and losing matter incessantly, under the
mutual interaction of attractive and repulsive forces, it is evident

that those which gain too rapidly, will also begin at once to lose at — 4

an abnormal rate, owing to the augmented action of the repulsive
forces; and the dust expelled from them will go directly or indirectly
very largely to the other members of the cluster, and thus operate
to restore the equilibrium of the whole group. Moreover, if any
serious collision occurs, by which one star acquires predominant size,
it will at the same time acquire such abnormal energy of radiation, -
that the balance of power will tend to become gradually restored
under the action of the repulsive forces at work.

From these known causes one would expect a cluster therefore
to be a mutually compensating system, producing and building up
new bodies in vacant regions, where the conditions are stable, and
redistributing undue accumulations of mass by the natural balance
established between attractive and repulsive forces, as all the stars
gain matter from surrounding space and again expel it after a cer-
tain repulsive vigor has been attained. The eventual accumulation
of so many stars in a comparatively small space largely operates to
retain the dust expelled from them in that region; it thus goes to
other members of the group, rather than to the rest of the remote
stars of the universe, so that in the course of vast time—millions of
ages in Herschel’s expressive phrase—the cluster accumulates to
such grandeur and order as we see in such noble globular clusters
as that in Hercules, 47 Toucani, and Omega Centauri.

It is worthy of note that this simple theory, based on known and

established laws, explains not only the origin and growth of these

wonderful masses of stars, under conditions of stability ; but also the
nearly perfect equality of the individual stars which has always been
so bewildering to astronomers.

1912.] OF THE GLOBULAR CLUSTERS. . 143

X. How a Star ENTERING A CLUSTER HAS ITS OSCILLATIONS
DAMPED AND IS FINALLY CAPTURED.

If we recall the familiar equations for an oscillation, as treated in
works on physics,

n= ae cos (nt+a), or y=ae* sin(nt+ 8), (45)

where a is the original amplitude of the harmonic oscillation, so that
ae*' becomes a coefficient decreasing as ft increases, n==22/T, T
__ being the period ; we see that as the time ¢ increases the ordinate 7 will
decrease, though the period T remains constant. The equation
_ (45) thus represents a damped vibration, such as constantly arises
_ where resistance is encountered by vibratory motion. Under these
_ circumstances the harmonic curve rapidly loses amplitude and is of
the form:

ae
La

Fic. 2. Illustrating damped vibrations.

The process of damping here brought to light for oscillating
particles describing simple harmonic motion has its analogies in the
movements of stars in a cluster; for here too the period of the
_ movement, as we have seen in VIII., is essentially constant, but the
amplitude of the oscillation is reduced till it becomes adapted to

that of the rest of the system. This is a part of the capture process,
_ because it tends to reduce all the abnormal movements to one dead
level.

_ Let us now examine the dynamical process by which stars tend
to become entrapped in the central region of a cluster. If we con-
sider the potential of a spherical shell of stars obeying any law of

144 SEE—DYNAMICAL THEORY [April 19,

density, and having a thickness R-r, it is evident from equation (7)
that :

2a :
egal db - sin 020 1G ordr, (46) |

and the forces ne the coordinate axes will be
2 or wT R
XxX’ = f cos ¢df a sin? 0d0 a cdr,
0 0 r y %
2a w R ;
Y’ = uf sin ddd 7 sin? 020 7 adr, (47)
0 0 i fi

ar 7 R
Z'= H add z cos @ sin 6d0 A oar.
0 0 r

Now every globular cluster may be regarded as made up of a series
of such shells; so that the total forces become

ah a ae pa ae fe sin? 040 e ode.

vos Kee oo bah { " sin? 0a0 1 adr, (48)
i=l /J0 0 r ai

\
I
I

2a T R
adh i) cos 6 sin 0d0 J oar.
0 0 ia

These expressions are so complex, that we are obliged to re-
strict our consideration to the action of a single shell. Accordingly,
we shall suppose the single shell filled with stars to a considerable
density, and the distribution uniform. An external star coming in
from the distance, if otherwise undisturbed, will revolve in a Kep-
lerian ellipse having its focus in the center of the shell. The mass
acting as if collected at the center is 4ror?(R-r), where the thickness :
R-r is not too large; and the velocity acquired at the outer border
of the shell is

a

Y= BL gror(R— A] R— 5 | (49)

where a is the semi-axis major of the Keplerian ellipse.

1912.) OF THE GLOBULAR CLUSTERS. 145

As soon as a part of the shell of thickness dr has been traversed,
_ however, the stars included in the space 4zr*dr will cease to exert at-

_ traction on the moving star; and the further it enters the shell the

_ toa straight line. This path is illustrated by

less central attraction will be exerted from the original focus. As
_ the star quits the shell and enters the hollow space within there
will be no central attraction to cause it to describe a Keplerian
ellipse. Thus as the radius vector decreases from R to r, the path
_ ceases to be the arc of an ellipse, and becomes a straight line. The
body thus moves uniformly across the hollow of the shell, and
enters again on the opposite side, with the-same velocity it had on
quitting the shell. The central attraction of the shell begins to be
felt as soon as a layer of thickness dr is trav-
ersed, for the space 4rr7dr has a mass 4zor"dr,
and it attracts as if collected at the center of
the shell. This force grows till the star emerges
_ from the shell on the outside, when it is equal
_ to that operating at the moment the star first
entered the shell. Consequently it will depart
from the shell on a Keplerian ellipse exactly
similar to that on which it first came in; and
the total external orbit will consist of two ex-
actly similar and similarly situated parts of
ellipses, joined by straight lines in the hollow
_ Of the shell, and within each layer of the shell
_ gradually passing from the arc of an ellipse

_ the accompanying figure.
The orbit here described supposes that — Fic. 3. Illustrating
no local perturbations have occurred during ‘2 capture of an os-
the complete revolution. Let us now consider ee et 8
action of a spherical
the average effect of such perturbations as shell uniformly filled
will occur. These may be best understood by with stars as in a
analogy with the average effect of Jupiter on #/0bular cluster.

comets crossing his orbit. It is will known that many comets orig-
inally traveling in orbits almost parabolic have been thrown within
Jupiter’s orbit, till quite a large family has been acquired with short

146 SEE—DYNAMICAL THEORY [April 19,

periods, and aphelia near Jupiter’s path; and those which still over-
lap his orbit are being gradually worked into the more stable region
within the orbit of that giant planet. In the same way the asteroids
have been thrown within Jupiter’s orbit, as H. A. Newton justly
remarked in 1894 (cf. my “ Researches,” Vol. II., 1910, p. 699),
by a process which Professor E. W. Brown has more fully investi-
gated in the Monthly Notices for March, 1911. Professor H. A.
Newton’s researches and those of Callandreau and Tisserand on
the capture of comets are well known, and need not be described
here.

Now if for Jupiter we substitute the action of the shell of the
cluster, it may be thought that Jupiter is a very large mass, while
the comets are very small; whereas the stars in the shell of the
clusters are not supposed to be so much larger than the star
falling in. This is very true, but as the shell contains many stars
in mutual adjustment to an average state of stability, the oscillating
star in the course of ages will be disturbed by the many stars, and
the cumulative effects will be added together, just as the actions on
comets are by the massive planet Jupiter. The mass of the shell
greatly exceeds that of the single oscillating star, and even if some of
the individual stars in the shell are considerably disturbed, yet the —
disturbance in successive revolutions will not effect the same stars,
owing to movements within the shell of the cluster; and thus in
the long run the only possible effect of the action of the many
upon the one visiting star will be to dampen its energy of oscillation,
till it too will have its path reduced and take its place in the shell
with the original group. Thus the visitor from without is entrapped
and its movements dragged down to the dead level of the rest of the
stars in the shell.

This is a general explanation of the capture process established
by the more rigorous method of integration depending on Green’s
theorem, when some of the terms become infinite. It seemed desir-
able to examine the matter from both points of view.

To be sure this transformation may take many millions of years,
but the average effect of the action of the shell in the long run is |
certain. As the stars in the shell are comparatively quiescent, the

1912.] OF THE GLOBULAR CLUSTERS. 147

only possible average effect of their action on the visitor will be to
exert a drag on its motion. Some of the quiescent stars may be
slightly disturbed by the passing body, but as the effect of one appulse
is likely to be comparatively small, the stars in the shell will readjust
_ the relations among themselves easily, while the visitor will suffer a
_ considerable retardation of its oscillation. And after many appulses
_the visitor will have its motion restricted to the shell like the motion
of the multitude of stars composing it.

_. This explains in a simple manner the capture process by which
_ clusters are built up, and given such accumulation of density towards
their centers. For the clusters are made up of a series of shells, and
‘if the effect of one shell is of this type, the effect of all the shells
will be an integration of these damping effects. It is no wonder
therefore that all the clusters show such pronounced accumulation
of density towards their centers. It is the inevitable outcome of this
capturing of foreign bodies in the course of immeasurable time.

In section III. we have admitted the possibility that defects in
our photographs will account for the central density in clusters ex-
ceeding that of the atoms in a globe of monatomic gas in convective
equilibrium ; but in view of this capture process, it seems much more
_ likely that the stars are accumulating in these centers beyond the
3 normal density for a mass of monatomic gas. Thus have the clus-
__ ters been built up to such extraordinary accumulation that they justly
excited the wonder of Sir William Herschel.

_ XI. Tue Gropurar CLusTERs CAN BE EXPLAINED ONLY BY THE
' CapTURE THEORY.

The figures of the clusters, nebule and other sidereal systems
__ impressed Herschel with the view that there is a clustering power in
nature, everywhere gathering the stars into globular swarms, and
moulding the nebulosity into figures of greater and greater sym-
_ metry (Phil. Trans., 1789, pp. 217-219). This is the earliest outline

a of the modern capture theory as applied to clusters and nebule of
symmetrical figure. It is evident that this process gives a good ex-
9 planation of the origin of the clusters, and that they can be explained
in no other way.

148 SEE—DYNAMICAL THEORY [April 19,

It is obvious that masses of such vast extent and perfectly round
figure and symmetrical arrangement of internal density, could not
possibly have arisen by any of the theories of collision formerly
held but now abandoned. For collisions could not disperse the stars
to such great distances over spaces measured by many thousands of
light years, nor could they give rise to the observed symmetrical
arrangement of the parts. Moreover, clusters embracing thousands
of stars, if due to collision, would imply two equally immense masses
in collision; and there would be so few of these large masses in the
universe, that it is inconceivable that they would ever come into col-
lision. The whole collision doctrine is manifestly inconsistent with
the symmetry and order found in the clusters, which can therefore
be explained only by the capture theory, based on the expulsion of
dust from the stars, and its collection from all directions into masses
of impressive symmetry.

This theory not only gives a perfectly satisfactory account of the
phenomena of the clusters, which are wonderful in the extreme, and
show steady and uniform processes working slowly over immeasur- _
able ages; but also establishes the theory itself by the way the most
intricate and diverse phenomena are woven into a continuous whole.

The first rule of philosophy laid down by Newton in the “ Prin-
cipia”’ is that: “We are to admit no more causes of natural things
than such as are both true and sufficient to explain their appearances.”
He explains this by adding that “ philosophers say nature does noth-
ing in vain, and more is in vain when less will serve.” The next rule
is that we are to ascribe the same natural effects to the same causes.

If therefore the capture theory alone will explain the clusters,
where the scale of the operations is immense, and the symmetry so

perfect that other causes are easily excluded ; and on the other hand _

it will equally account for all other known phenomena of the sidereal
universe, it follows from Newton’s rules for philosophizing that this —
cause alone can be regarded as established. The definite proof of —
the capture theory for the formation of clusters and nebulz thus —

renders its operation general throughout the sidereal universe.

Everywhere the large masses drift towards the most powerful neigh- ;
boring center of attraction, while fine dust is expelled from the stars

1912.] OF THE GLOBULAR CLUSTERS. | 149

___ to produce nebulz in the vacant regions of the heavens; and this
concentration of the large masses under gravity, and the redistri-
bution of the fine dust by the action of repulsive forces is the great

law of nature which preserves the order of the starry heavens.

XII. Tue Murua INTERACTION OF ATTRACTIVE AND REPULSIVE
Forces CONFIRMED BY A DELICATE CRITERION BASED ON
THE Exact EQuALITY OF THOUSANDS OF ASSOCIATED
STARS IN A CLUSTER.

Elementary considerations on the principles of probability will
show that the chances of even two associated stars being of equal
brightness is slight; it is still smaller for three, four and higher
multiples, and when the number becomes large the probability of the

a chance association of such equal stars totally disappears. Accord-

ingly, it is not by accident that thousands of stars observed in a
cluster, with perfectly symmetrical accumulation towards the center
of the associated stars, all known to be at nearly the same distance
from us, are as exactly equal in every respect as the finest coins
turned out of a mint. There must be in nature a reliable process
for the manufacture of these nearly equal stars, which is described
above for the first time.

To prove this more conclusively we may compare clusters with
double and multiple stars, which are systems of lower order. In
binaries the components often are very unequal in brightness, and
also in mass. The same principle, as is well known, holds for triple
and quadruple stars. Now in these double and multiple star systems
the ratio of the mass of the components depends on the chance
division of the original nebulosity gathered from the heavens, not
from the associated stars themselves ; but in the clusters the principle
of redistribution becomes largely predominant, owing to the great
number of radiating centers in close association. It is not surpris-
ing, therefore, that the lower orders of stellar systems should in-
clude: first, single stars, with planetary systems, amounting to about
four fifths of all the stars; second, binary stars, with unequal com-
ponents; third, multiple stars, also with components very unequal.
This inequality of the associated stars is to be expected in all sidereal

PROC. AMER. PHIL. SOC., LI. 204 G, PRINTED JUNE 6, Igt2.

150 SEE—DYNAMICAL THEORY [April 19,

systems made up of a small number of bodies, but the visual double
stars, as the brighter and more easily recognized systems, appear to
have components more nearly equal than the much greater number
of systems,* which remain invisible at the distance of the fixed stars.

The association of thousands of equal stars in a cluster must
therefore depend on something besides a chance distribution, or par-
tition of the primordial nebulosity. For although the clusters are
very far away, and the double stars in a cluster would thus appear
single from the perspective effect of distance alone, yet the distance
would not prevent fainter single stars from appearing on the back-
ground of the cluster if they were present. Perrine points out in
Lick Observatory Bulletin No. 155 that in cluster there is rarely
a difference of more than two magnitudes among the stars com-
posing it. This difference probably depends on difference in the
spectral types, rather than on difference in mass. The conclusion
that the great equality in luster depends on the essential equality in
the redistribution of dust within the system therefore seems unavoid-
able, as a necessary result of known laws of nature actually proved
to be in operation. If therefore this argument regarding the origin
of clusters, based on the equality of the stars, is admissible, the
explanation may as confidently be depended on as the law of gravi-
tation itself. For the testimony of the sidereal universe to its truth
seems to be absolutely overwhelming. There are in all over one
hundred globular clusters, and they include millions of stars; so that
the observed order of nature obviously rests on a fundamental cause.

Accordingly, if we admit the truth of this theory of clusters,
which now seems to be well established, through the evidence pre-
sented by hundreds of globular clusters, and by the analogous evi-

dence offered by thousands of nebulz, we have at the same time an a

equally satisfactory proof of the universality of the operation of
repulsive forces in nature. With his usual penetration Herschel saw
in the accumulation of density and brightness towards the centers of
these masses an incontestible proof of the existence of a clustering
power operating throughout the sidereal universe.

Now by exactly reversing his argument we have an equally valid
proof of the operation of repulsive forces, to give the original distri- —

* Resembling planetary systems.

1912.) OF THE GLOBULAR CLUSTERS. 151

bution of dust, out of which the clusters and nebulz are finally built.
Moreover, as already remarked, this general argument, drawn from
the sidereal universe as a whole, is minutely verified in the construc-
tion of clusters, by the exact equality of thousands of closely asso-
ciated stars, which thus supply a criterion of unrivaled rigor. This
cluster criterion authorizes the conclusion that the theory may now
be removed from the category of speculation and entered in the list
of established facts relating to the physical universe. The most
“obvious indications of nature are plain enough; and in interpreting
them all we need to do is to follow the theory of probability, which,
as Laplace has remarked, is nothing but common sense reduced to
calculation. This theory tells us that there is a deep underlying
cause for the perfect equality of the associated stars in clusters,
which can be nothing else than the mutual interaction of attractive
and repulsive forces in these island universes.

XIII. THe Rest DIMENSIONS OF THE CLUSTERS AND THE AVERAGE
DISTANCES OF THE STARS APART.

The question of the distances of the clusters is one which at
present cannot be fully answered, owing to the lack of certain obser-
vational data; but it is well known that nearly all these masses of
stars are very remote. To be sure such an outspread swarm as
Coma Berenices, really is a cluster so near us as not to be suspected
_ of belonging to the same type as the better defined Pleiades, Praesepe
a and Omega Centauri. But leaving out of account a few exceptions
of this class we may say that the globular clusters in general, like
the nebulz considered by Dr. Max Wolf in A. N., 4549, are thou-
_ sands of light-years in diameter. This is proved by the comparative
faintness of the component stars, and the large angular magnitude
of the clusters as seen in the sky.

_ Accordingly, even when there are thousands of stars in a very
_ compressed cluster, they are not really close together, but separated
by great intervals, of the order of a light-year. Thus the components
in a dense cluster probably are somewhat closer together than our
sun is to Alpha Centauri; and yet the intervals can hardly be less
than a ten thousand fold radius of the earth’s orbit, the light-year

152 SEE—DYNAMICAL THEORY [April 19,

being 63,275 times that distance. In fact the average distances are
likely to be several light-years, and thus of the order 100,000 radii
of the earth’s orbit.

This great distance of the stars apart, even in the densest cluster,
will enable us to realize the well-known fact that our sun is in a
solar cluster, which includes Sirius, the stars of Ursa Major, and
many other bright objects. It also enables us to appreciate why the
motion in the clusters necessarily is slow, owing to the great inter-
vening spaces and the feebleness of the disturbing forces acting on
the individual stars. And at the same time we easily see why such
a system, under the mutual gravitation of its parts, might survive
for infinite ages, without sensible decay of its order or stability.
Newcomb therefore was right when he remarked that there might
be planets revolving about the stars in a cluster (article “ Stars,”
Encyclopedia Americana) ; for we ourselves live on a planet attached
to a star of the solar cluster, and the other clusters of the sidereal
universe are not very different from that including our sun.

Sir William Herschel was of the opinion (Phil. Trans., 1789, p.
225) that the clusters which are most compressed are drawing on
towards a period of dissolution. In an earlier paper of 1785 Her-
schel suggested that the clusters are the laboratories of the universe
where the most salutary remedies for the decay of the whole are
prepared (Phil. Trans., 1785, p. 217).

In my “ Researches,” Vol. IT., 1910, I have independently pointed
out that the condensation of very compressed clusters into one mass
is the only logical explanation of such immense stars as Canopus and
Arcturus. For it appears that with the advance of age the state of
compression slowly increases, and when it has become extreme, and
all the single bodies are drawn very near the center, it is quite likely
that the cluster by conflagration may become the furnace of a labo- —
ratory of the universe for repairing through repulsive forces the
ravages wrought by universal gravitation in the course of millions —
of ages.

If this be true someone may ask why we do not find some cluster 3
in the stage of conflagration? But if we recall that only a little —
over one hundred globular clusters are known, with their internal : 5

1912. OF THE GLOBULAR CLUSTERS. 153

spaces still large, and remember also the vast interval of time re-
quired to produce the invisible state of close compression, it will
become evident that the chances of our living at the epoch of a
cluster conflagration totally disappears, and the most we can hope to
recognize is the resulting giant star such as Canopus.

XIV. Proor THAT MATTER ACTUALLY Is LOST FROM OUR SUN
- SUPPLIED BY THE VERY STRAIGHT TAILS OF COMETS DEVEL-
OPED IN CLOSE PERIHELION PASSAGE.

In view of the recent development of the doctrine of repulsive
forces in nature, it becomes important to have readily at hand specific
illustrations of these forces adequate to meet any demand that may
be made on the new doctrine. Now the tails of comets and the
streamers of the corona, as explained by Arrhenius in Lick Observa-
tory Bulletin 58, give abundant evidence of the operation of repulsive
forces directed from the sun; but every case does not show a repul-
sion sufficiently strong to carry the particles away from our solar
system on parabolic or hyperbolic paths. The question thus arises:
Are there any known cases of repulsion sufficiently powerful to carry
particles away from our sun to the other stars, and thus cause a
secular decrease in the sun’s mass? We may answer this question
in the affirmative, for the following reasons:

I. Those comets which have had a very small perihelion distance,
as the great comets of 1680, 1843 and 1882, have all had also very
straight tails, which were found by calculation to be of immense
length near perihelion passage. It is well known that this extreme
_ straightness of tail indicates very powerful repulsion of the particles
composing it.

2. By actual calculation I have established the fact that the veloc-
ity of the particles in the tails of the above comets, at perihelion,
exceeded the parabolic velocity of a body driven away from the sun.
_ The matter in these tails therefore was not only diffused over the
solar system, but also carried away to other fixed stars.

_ 3. Now if this repulsion with more than parabolic velocity could
_ happen for vaporous matter developing in a comet’s tail near peri-
_ helion, but remaining of sufficient density and luminosity to be visible

154 SEE—DYNAMICAL THEORY [April 19,

to the eye against the background of the sky, because it is condensed
into a beam, the same thing obviously could develop also for par-
ticles in the solar corona itself, even if they be not sufficiently con-
centrated to present at night the aspect of a ray extending from the
sun. In fact such rays of charged matter are proved to emanate
from the sun by Maunder’s researches on the sun spots and magnetic
disturbances noted at Greenwich, and published in the Monthly No-
_ tices of the Royal Astronomical Society for 1905.

4. The emission of charged particles from the sun being thus
clearly proved, the only question remaining open. to discussion is
whether any of the matter thus driven away from the sun goes away
to the other fixed stars. But as my calculations show this to occur
for the particles of the tails of comets which graze the sun’s disc in
perihelion—the only case in which the beams can be distinctly seen
and the velocity of the particles determined from the lack of curva-
ture in the tails—it must, by similarity of causes and effects, be held
to occur also for some of the particles in the corona, even though
they be invisible, owing to the diffuseness of the streamers.

5. The sun therefore is losing matter incessantly as well as gain-
ing it, in the form of meteorites from celestial space. And in my
“ Researches,” Vol. II., 1910, I have shown that the secular accelera-
tion of the earth’s motion indicates that at present the gain exceeds

the loss; but if the sun was hotter in past ages, the reverse tendency _ 4

formerly may have been at work.

6.. Thus it appears to be demonstrated, by observed phenomena
in our planetary system, that the sun is both gaining and losing
matter, but that at present the rate of gain exceeds that of loss, so
that there is a secular acceleration of the planets of such excessively
minute character that it long escaped detection. In other fixed stars,
it is probable that various combinations of gain and loss are at work;
and we may be sure that the masses of the stars are not strictly con-
stant over long ages, however approximately an even balance of gain
and loss may hold for shorter intervals of time.

The view held by Newton and adopted by Lagrange and Laplace
that the sun’s mass may be considered constant, is only approxi-
mately true, and cannot properly be applied to the secular equations

1912.] OF THE GLOBULAR CLUSTERS. 155

___ for the motions of the planets; and what has been found true of our
sun, as respects a growth of mass, from the records of ancient
eclipses, will naturally be adopted for other solar stars, while a secu-
_ lar decrease in mass may be assumed for some of the Sirian stars,
__ owing to the intensity of their radiation.

XV. THE BUILDING oF CLUSTERS AND NEBULZ CONDENSED
TOWARDS THE CENTER, AS ILLUSTRATED BY THE VERY
ELONGATED ELLIPTIC ORBITS OF OUR SYSTEM OF
CoMETS.

If we seek to inquire how clusters and nebule much condensed
towards the center are built up by the process of capture, we shall
_ _ find the general mathematical treatment by Green’s theorem already
___ given very satisfactory, for large bodies of the type of stars. It is
equally convincing mathematically as applied to small bodies of the
type of comets, but it is perhaps well to notice how the comets de-
scending to our sun in very elongated ellipses have served to supply
material for building up the planets and sun. This remarkable
system of comets, with elliptic orbits equally diffused in all directions
about our sun, is a sure sign that the nebulosity now condensed into
‘our comets came originally from the fixed stars. -

4 But if on the one hand, this equality of distribution of the
__ aphelia in every direction points to the original entrance of the mate-
_ rial into our nebula from without, the other equally remarkable prop-
erty of high eccentricity, on the other, points to a similar conclusion.
At the same time this coming in of matter from a distance makes
possible the growth of the planets near the center of the system,
___ because near perihelion the comets often pass so close to the planets
as to have their orbits transformed, and their masses disintegrated
and their dust absorbed by the planets. It is by moving against the
resistance due to comets, and meteor swarms that the planetary
orbits have been rendered so perfectly circular that the Greeks be-
lieved that the Deity had chosen the circle for the paths of the
planets, because the circle was held by the ancient geometers to be
a perfect figure.
Now what takes place about our sun, in the solar cluster, may

——

156 SEE—DYNAMICAL THEORY [April 19,

also take place, in other star clusters of the Milky Way. There are
in every region systems of bodies corresponding to our comets; and
as they travel in very elongated ellipses, they tend to build up the
bodies near the centers about which they revolve. In this way there

must be countless infinities of comets working in towards the centers

of the globular clusters; and thus they build up the equality of the
stars in these regions, while at the same time the increase of mass
and the resistance to orbital motion thus arising tend to round up
the cluster and give increasing density towards the center.

Thus the analogy of the comets revolving in very elongated orbits
_and being destroyed to build up the planets and the sun, will also hold
in the building up of a cluster. . Not only may mature stars be cap-
tured and adjusted to the average oscillation within a cluster, but
also myriads of millions of comets; and it is in this way largely that
the-cluster augments in mass and density towards the center. This
growth of central power in turn augments the condensation observed
in the clusters, and tends still further to produce a secular decrease

in volume; just as the planets are drawn nearer the sun by the

increase of the sun’s mass. The shrinkage in the volume of a cluster
is thus analogous to the diminution of the dimensions of the primi-
tive orbits of the planets. And just as the planets in time will fall
into the sun, so also will the stars of a cluster eventually combine
into one great central star and thus produce an Arcturus or a
Canopus.

The study of the system of comets about the sun, and the way
the planets have been built up near the center of the solar nebula,
thus gives us much light on the central accumulations noted in
globular clusters. The smaller masses drawn in from without tend |
to augment the central bodies of the system; and this growth of mass
in turn produces a further condensation of the original group,
whether it be a planetary system, or a globular cluster of the highest
order of glory and magnificence.

1912.] OF THE GLOBULAR CLUSTERS. 157

XVI. THe ProyectTILe Forces WHICH SET THE DOUBLE AND MUL-
TIPPLE STARS REVOLVING IN THEIR Orzits, PoINT TO
ORIGIN IN THE DISTANCE.

If we have a stellar system made up of several components, we
may designate the masses of the individual stars by M,, M,, M,
M,. We shall first consider a binary star with masses M, and M,,.
Then the moment of momentum of the components about the com-
mon center of gravity of the system will be

M,
wam,(w2u,) v1=?
50)
M, Mp MM, at eoele
+ ort (argo) 9V1-4 eae eel kat,

where e¢ is the eccentricity of the orbit, and p the radius vector, and
© the mean angular velocity in the orbit (cf. inaugural dissertation,
“ Die Entwickelung der Doppel-Stern Systeme,” Berlin, 1892, p. 16).

When the other elements are unchanged, we find that the moment
of momentum of the binary system decreases with the increase of the
eccentricity. In case of a circular orbit, e vanishes, and © is con-
stant. In the general equation of the planetary theory the unit of
time may be so chosen that the constant of attraction (cf. Gauss,
“ Theoria Motus,” Lib. I., § 1) becomes

Win et eH Of Banh: (51)

and we may therefore put © for m and p for a, and the second mem-
ber of (50) becomes

UM, Fe age de
Os gees ama ‘ei (52)

the radical involving e to be unity in circular orbits.

From this equation (52) it appears that with constant mass the
moment of momentum of a system of double stars depends on the
square root of the mean radius vector, and therefore increases rap-
_ idly with the distance.

158 ; SEE—DYNAMICAL THEORY [April 19,

Other conditions being equal, the maximum moment of momen-
tum would therefore be attained by the separation of two stars to a
great distance, yet a pair of such passing stars would have to have
peculiar directions and velocities to enable them under mutual gravi-
tation to form a system. If the motions of two stars were directed
towards the same point in space, and with velocities which would
enable one to overtake the other, before or after the point was
reached, one might revolve about the other; and with proper relative
velocity—to be gotten either by altering the directions of motion, or
by adjusting the velocities in the converging lines of motion—the
two stars might form a binary system.

This dynamical condition of formation is so difficult to realize in
practice that we may be sure that it is quite rare in nature; and that
the vast majority of double stars have developed from nebulz, by
the appropriate division of the elements between two leading centers
of condensation. But it is now recognized that the nebule them-
selves have developed from dust expelled from the fixed stars and
were originally of vast extent; and hence even if the bodies into
which they condense gradually approach the center of gravity of the
system, as the stars increase in mass and revolve against the nebular
resisting medium and their orbits grow smaller and smaller and
rounder and rounder, it will yet follow that many double stars have

components so far apart that their systems have large moments of | a

momentum of orbital motion.

The difficulty of explaining the large orbital moments of momen-
tum of double stars first arose in completing certain calculations for
my inaugural dissertation at the University of Berlin just twenty
years ago. At that time I saw that a wide separation of the compo-
nents of a system gave large moment of momentum, and that in
order to account for the orbital moment of momentum by the hypoth-
esis of tidal friction first developed by Sir George Darwin and after- —
wards extended “by me to binary systems, it was necessary to endow
the stars with very rapid axial rotation. Otherwise the mean dis-
tance of the components would not be greatly increased by the ex-
haustion of the moments of momentum of axial rotation under the
secular action of tidal friction.

1912.] OF THE GLOBULAR CLUSTERS. 159

At this early stage in the study of the problems of cosmogony,
naturally I had not exhausted the other possible modes of formation,
though I had largely excluded the capture of single stars by chance
approach due to difference in proper motion. The further study
of this problem has occupied a part of the past twenty years, but as it
has now led to the establishment of a great law of nature, one may
feel that the labor has not been in vain.

From the above reasoning it will be found:

1. That if the globes of the stars of a binary be expanded till a
hydrostatic connection is established between the components, the
fluid will thereby become so rare that no hydrostatic pressure could
be exerted to throw off a companion by rotation.

2. A rotation rapid enough to produce such a separation could
not be accounted for by natural causes.

3. Hence it is clear that the premise implying a separation by
rotation is false; and the true mode of formation is diametrically
opposite to what was long believed. Instead of being thrown off by
rapid rotation, the attendant bodies have all been formed in the dis-
tance, and added on from without, so that they have neared the
centers about which they now revolve. This uniform law greatly
simplifies all our conceptions of cosmical evolution.

To illustrate the relative significance of the moments of momen-
tum of the axial rotations compared to the moment of momentum
_of orbital motion, it suffices to cite the case considered in my inau-
' gural dissertation of 1892, pp. 37-38. In this case each of the two
equal stars imagined expanded into a nebula has three times the mass
of the sun; and the axial rotations are such as to give an oblateness of
_ 2/5. Thestars are set in motion at a mean distance of 30 astronomical
units. In the special units there adopted, it turns out that the mo-
ments of momentum of the axial rotations have the numerical values
0.394, or 0.788 for the two stars; and the moment of momentum of
orbital motion becomes 2.378. °

Thus with the two stars so far apart as 30, it is impossible to
keep the figures of equilibrium stable and yet give them rotations
rapid enough to render the moments of momentum of axial rota-
tion large compared to that of the orbital motion. Nevertheless, a

160 SEE—DYNAMICAL THEORY _ TApril 19,

double star orbit with a mean distance of 30 must be considered small
compared to many orbits which exist in the heavens. For there are
physically connected stars which show very little motion in a cen-
tury, and others which remain quite fixed, as may be clearly estab-
lished by comparing modern measures with those of Herschel and
Struve.

The conclusion from this calculation is that the observed mean
distance of wide double stars has not been developed by the transfer
of moment of momentum of axial rotation to moment of momentum
of orbital motion. By such transfer of moment of momentum the
orbit may indeed be expanded, but not to many times its original
size. On this tidal frictional theory the larger orbits of double stars
could not be explained satisfactorily. The difficulty encountered
some twenty years was therefore first overcome in developing the
second volume of my “ Researches,” along the lines of thought result-
ing from the extension of Babinet’s criterion in 1908.

Looking at the problem in the light of recent progress it is evident
that the large and highly eccentric orbits of double stars do undoubt-
edly point to capture; that is, the formation of separate nuclei at a
great distance, and the revolution of the two stars in narrowing
orbits about the center of gravity of the system. If this process of
revolution in the original nebula should continue long enough, the
size and eccentricity of the orbit would be much reduced; and we
should thus obtain systems of the type commonly observed to be in

comparatively rapid revolution. There is thus established a real

connection between the revolving visual double stars and the much
larger number of physical systems which have remained nearly if not
quite fixed since the epoch of Herschel and Struve.

This inference is also sustained by recent progress in double star
astronomy, which shows that the longer the period the higher the
eccentricity, and the same tendency holds for the rapid spectroscopic
binaries, as I pointed out in 1907 (Monthly Notices, Roy. Astron.
Soc., Nov., 1907). This unbroken continuity among all the classes
of double stars shows that the cause is everywhere the same. If
therefore the wider visual double stars have formed from separate
nuclei, in the condensing nebule, the explanation becomes valid also

1912.] OF THE GLOBULAR CLUSTERS. 161
for the spectroscopic binaries; and the law of formation is the same
for all the double stars as for the planets of the solar system, where
Babinet’s criterion is absolutely decisive against the detachment
theory generally held since the days of Laplace, but now universally
abandoned.

SUMMARY AND CONCLUSIONS.

PP Without attempting in this closing summary to recapitulate the
contents of this memoir in detail, it may yet be well to draw attention
to some of the most significant conclusions at which we have arrived.
1. As intimated in the first section of this paper the problem of
n-bodies, under ideal dynamical conditions, remains forever beyond
the power of the most general methods of analysis; but the dynamical
theory of clusters gives us the one secular solution of this problem
found under actual conditions in nature. For when » is of the order
of 1,000, so as to give rise to a cluster, the clustering power observed
by Herschel operates to exhaust the mutual potential energy of the
_ system, and bring about increasing accumulation in the center, so
_ that the cluster finally unites into a single mass of enormous magni-
tude. Probably the giant stars of the type of Canopus and Arcturus
_have arisen in this way.
2. And since attendant bodies of every class—as satellites, planets,
comets, double and multiple stars—tend everywhere to approach the
_ centers about which they revolve, as an inevitable effect of the growth
of the central masses and of the action of the resisting medium over
long ages, it follows that the secular solution of the problem of clus-
_ ters is more or less valid for all cosmical systems. They finally end
___ by the absorption of the attendant bodies in the central masses which
_ now govern their motions.
3. The dynamical theory of globular clusters shows that the clus-
_ tering power inferred by Herschel is nothing else than the action of
universal gravitation ; and that it operates on all sidereal systems, but
_ does not produce the cumulative effect which Herschel ascribed to
the ravages of time inside of millions of ages.
4. The globular clusters are formed by the gathering together of
stars and elements of nebulosity from all directions in space; and

162 SEE—DYNAMICAL THEORY [April 19,

this points to the expulsion of dust from the stars of the Milky Way, —
and its collection about the region of the formation in such manner
as to give essential symmetry in the final arrangement of the cluster,
which doubtless has some motion of rotation, and originally a tend-
ency to spiral movement.

5. The stars and smaller masses are captured by the mutual action
of the other members of the cluster, and worked down towards the
center of the mass. This gives a central density in excess of that
appropriate to a sphere of monatomic gas in convective equilibrium
(A. N., 4053, and A. N., 4104).

6. The density of the clusters is greater on the outer border than
in a globe of monatomic gas, which shows that stars are still collect-
ing from the surrounding regions of space. The starless aspect of
the remoter regions about clusters is an effect of the ravages of time,
as correctly inferred by Herschel in the course of his penetrating
sweeps of the starry heavens.

7, And just as clusters under the mutual gravitation of the com-
ponent stars contract their dimensions, with time, chiefly owing to
the growth of the central masses, so also do other systems, whether
the mass-distribution be single, giving a system made up of a sun
and planets, or double, triple and multiple, giving binary, triple or
multiple stars, or sidereal systems of still higher order. The tend-
ency everywhere is from a wider to a narrower distribution of the
large bodies; while the only throwing off that ever occurs is of par-
ticles driven away from the stars by the action of repulsive forces.

8. The orbits of the stellar and planetary systems are decreased
by the growth of the central masses and rounded up by the action
of the nebular resisting medium. And in like manner all clusters
tend to assume spherical or globular figures, so as to justify the ex-
pression of Plato, that the Deity always geometrizes; or Newton’s
remark that the agency operating in the construction of the solar
system was “ very well skilled in mechanics and geometry.”

g. Newton required the intervention of the Deity to give the
planets revolving motion in their orbits, because in the absence of
repulsive forces he could not account for the dispersion of the matter,
so as to produce the tangential motions actually observed. By means

1912.] OF THE GLOBULAR CLUSTERS. 163
of the theory of repulsive forces, however, it is now possible to
explain these projectile motions, which Herschel likewise pointed to
as the chief agency for the preservation of sidereal systems. The

only assumption necessary is an unsymmetrical figure of the primor-
dial nebula, giving a whirling motion about the center as the system
develops ; and since the dust gathers from all directions it is certain
that this lack of perfect symmetry will nearly always develop, as we
see also by the spiral nebule.

10. It is this unsymmetrical form of the spiral nebule produced
by the gathering of the dust from the stars, or the slight relative
tangential motion of stars formed separately but finally made to
revolve together as a binary system, that gives the binary stars the
projectile forces, with which they are set revolving in their orbits.
In no case have they resulted from the rupture of a rotating mass of
fluid under conditions of hydrostatic pressure as formerly believed
by Darwin, Poincaré and See.

11. Even if the rotation could become rapid enough to produce
a separation, under conditions of hydrostatic pressure, by rupture
of a figure of equilibrium, there would still be the equal or greater
difficulty of explaining the origin of the primitive rapid rotation.
This last difficulty escaped notice till we came to assign the cause
of rotations, and found that mechanical throwing off was impossible
under actual conditions in nature. It is therefore recognized, from
the definite proof furnished by Babinet’s criterion in the solar sys-

- : tem, that such a thing as a throwing off never takes place; but that

all planetary and stellar bodies are formed in the distance, and after-
wards near the centers about which they subsequently revolve.

12. This gives us a fundamental law of the firmament—thé
planets being added on to the sun, the satellites added on to their
planets, the moon added on to the earth, and the companions added
on to the double and multiple stars—which is now found to be beau-
tifully confirmed by the dynamical theory of the globular clusters.
It ts not often that such a great law of nature can be brought to light,
and it ts woxthy of the more consideration from the circumstance
that it explains all classes of stellar systems by a single general
principle.

164 SEE—DYNAMICAL THEORY [April 19,

13. As sidereal systems of lower order are conserved by projec-
tile forces, it is probable that the clusters likewise have a spiral
motion of rotation, with similar projectile forces tending to counter-
act simple progressive collapse. The period of the orbital revolution
of the stars of a cluster is found to be common to all, without regard
to the dimensions of the elliptical orbits described, and thus the
whole system may have a common period of oscillation, after which
the initial condition is perfectly restored. This possibility in the
dynamics of a cluster is exceedingly wonderful, and results from the
central attraction depending directly on the distance.

14. The equality of brightness in star clusters shows that some
process of compensation between the attractive and repulsive forces
has produced stars of wonderful uniformity of luster. Thus the
present investigation confirms the previous researches on the evolu-
tion of the stellar systems, which have laid the foundations for a new
science of the starry heavens.

15. Accordingly the capture theory of cosmical evolution being
now firmly established for the clusters, where the nature of the
process is entirely clear, it becomes at once a guide to us in dealing
with systems of lower order; and we see that the law of nature is
uniform and everywhere the same, the large bodies working in
towards the centers of attraction, while the only throwing off that
ever takes place is of small particles driven out of the stars by the
action of repulsive forces. All planetary bodies are formed in the
distance, and have their orbits reduced in size by increase of the
central masses, and rounded up by moving in a resisting medium.
This is a perfectly general law of the sidereal universe. It verifies
the early conjectures of Plato and Newton as to the stability of the
order of the world, and shows that these illustrious philosophers
were quite justified in concluding that the Deity always geometrizes.
The spiral nebulz tend to develop systems with rounder and rounder
orbits, and the clusters made up of thousands of stars assume
globular figures with minimal surfaces and internal density so
arranged as to give maximum exhaustion of the potential energy.

16. This is geometry of the most marvellous kind, as we find it _
impressed on the systems of the sidereal universe; and the perfection

1912.] OF THE GLOBULAR CLUSTERS. 165

of this most beautiful science of celestial geometry may be consid-
ered the ultimate object of the labors of the astronomer. The
philosophic observer is not and never can be content with mere ob-
servations of details which do not disclose the living, all-pervading
spirit of nature.

17. If, then, the mystery of the gathering of stars into clusters is
now penetrated and traced to the clustering power of universal grav-
itation, so also is the mystery of the converse problem of starless
space, which was a subject of such profound mediation by the great
Herschel.

18. This incomparable astronomer likewise correctly concluded
that the breaking up of the Milky Way into a clustering stream is
an inevitable effect of the ravages of time; but we are now enabled
to foresee the restorative process, under the repulsive forces of
nature, by which new nebulz, clusters and sidereal systems of high
order eventually will develop in the present depopulated regions of
starless space.

19. If there be an incessant expulsion of dust from the stars to
form the nebulz, with the condensation of the nebulz into stars and
stellar systems, while the gathering of stars drawn together by a
clustering power operating over millions of ages gives at length a
globular mass of thousands of stars accumulating to a perfect blaze
of starlight in the center, but surrounded externally by a desert of
starless space resulting from the ravages of time, certainly the
building of these magnificent sidereal systems may well engage the
attention of the natural philosopher.

20. The foremost geometers of the eighteenth century, including
Lagrange, Laplace and Poisson, were greatly occupied with the
problem of the stability of the solar system; and in his historical
eulogy on Laplace the penetrating Fourier justly remarks that the
researches of geometers prove that the law of gravitation itself
operates as a preservative power, and renders all disorder impos-
sible, so that no object is more worthy of the meditation of philoso-
phers than the problem of the stability of these great celestia’
phenomena.

But if the question of the stability of our single planetary system

PROC, AMER. PHIL. SOC., LI. 204 H, PRINTED JUNE 7, 1912.

166 » SEE—DYNAMICAL THEORY [April 19,

may so largely absorb the talents of the most illustrious geometers —
of the age of Herschel, how much more justly may the problem of —
the stability of clusters, involving many thousands of such systems,

claim the attention of the modern geometer, who has witnessed the — 4

perfect unfolding of the grand phenomena first discovered by that
unrivaled explorer of the heavens?

The grandeur of the study of the origin of the greatest of side
real systems is worthy of the philosophic penetration of a Herschel!
The solution of the dynamical problem presented surpasses the
powers of the most titanic geometers, and would demand the in-
ventive genius of a Newton or an Archimedes!

Yet notwithstanding the transcendent character of the problem,
and the hopelessness of a rigorous solution in our time, even an
imperfect outline of nature’s laws may aid the thoughtful astron-
omer, in penetrating the underlying workings of the sidereal. uni-
verse, and thus enable him to perceive the great end subserved by the
development of the cosmos. If so, he may well rejoice, and ex-
claim with Ptolemy:

“Though but the being of a day,
When I the planet-paths survey, - 1 pre
My feet the dust despise; vs er Se ae
Up to the throne of God I mount
And quaff from an immortal fount
The nectar of the skies.”

STARLIGHT ON LOUTRE, ;
MontcoMery City, Missourt, —
February 19, 1912.

es ~ sy
. cd a Ma at aca aaa ue ee ae
eae ee pi ak i a a SN

THE CLASSIFICATION OF THE BLACK OAKS.

By WILLIAM TRELEASE.
(Read April 19, 1912.)

(Pirates X-XIII.)

Since Alphonse de Candolle? pointed out that the abortive ovules
occupy a definite position in a mature acorn, constantly basal or
nearly so in some species and as constantly apical or nearly so in
others, and crystallized the knowledge that the ripening of the fruit
occurs in one season in some and requires two seasons in others
(attending correspondingly retarded fertilization?) with as great
constancy,* so many other correlations in wood, bark, leaf, stamens
and styles have been associated with these differences that the white
oak and black oak groups* have long been recognized as presenting a
natural division of our native species: the former with basal ovules,
short styles with dilated stigmas, usually annual often stalked fruit
essentially glabrous within and often with tuberculate or aristate
cupule-scales, leaf lobes not bristle-tipped, pale often flaky bark and
tough compact rather pale wood of slow growth; the latter with
apical ovules, elongated slender styles, usually biennial nearly sessile
fruit tomentose within and rarely with tuberculate or tapered cupule-
scales, bristle-pointed leaf lobes, dark often deeply checked but not
flaking bark and darker wood of twice as rapid growth on the
average.

The principal doubts as to the sufficiency of these group charac-
ters may be said to rest on an occasional easily understandable but
none-the-less misleading slip of the pen such as that of de Candolle’s

*A. de Candolle, Ann. Sci. Nat., Bot., IV., 18: 51. 1862. For various
other places of publication in French and English, reference may be made

to the catalogue of the Royal Society.

? Conrad, Bot. Gaz., 29: 410. 1900.

* A. de Candolle, 1. c., 50.

*Engelmann, Trans. Acad. Sci. of St. Louis, 3: 374, 381, 388. 1876-7;
“Bot. Works,” 390, 304, 397.

167

168 TRELEASE—CLASSIFICATION OF BLACK OAKS. _ [April 19,

translator® and of Professor Sargent,® making the ovules appear to
be basal in the black oaks; and on puzzling facts as well as observa-
tions on the dwarf live oaks, particularly Q. Emoryi which Engel-
mann’ and Greene® have treated as a black oak on its general assem-
blage of characters, and Sargent® (as did Engelmann’? at first)
places with the white oaks because of its basal ovules.

Without attempting a critical analysis of hybrids, segregates and.
aberrants, the present communication offers what appears to be a
natural grouping of our black oaks, which have been arranged in
floras and monographs usually and diversely in sequence dictated by
convenience of foliage contrast—that is, descriptively rather than
taxonomically.

The classification here proposed was adopted some months since _
when the oaks growing about St. Louis were selected to illustrate to
a university class the synthesis of generic concepts out of specific
characters. This local flora is fairly rich in representation of Quercus,
for its dozen species constitute about two-thirds of those of Missouri,
half of those of the northeastern states, a fourth of those of the
United States, and a twentieth of those of the world. For this rea-
son it has been comparatively easy to extend the conclusions based
on the local species so as to embrace all of those occurring east of
the great plains—which are evidently of a common stock. The few
species occurring between the continental divide and the desert, and
the few found west of this natural barrier, appear to represent
groups more properly codrdinated with the entire assemblage of
eastern species than with the sets into which this is divided. In
them, perhaps, is to be found the key to an understanding of the
history of the genus as it is now represented in North America.

Not many words are needed to indicate the striking collective dif-
ferences in bud and fruit between the three groups, black oaks, scarlet
oaks and swamp oaks of the eastern states, as pictured in the accom-

5A. de Candolle, Trans. Edinburgh Bot. Soc., 7: 440. 1863.
° Sargent, “ Manual, Trees of N. A.,” 227. 1905.

* Engelmann, /. c., 388, 304.

8 Greene, “Ill. of W. A. Oaks,” 45. 1880.

® Sargent, 1. c., 230, 286.

” Engelmann, /. c., 381-2.

1gt2.]

TRELEASE—CLASSIFICATION OF BLACK OAKS. 169

_ panying plates: the first (Pl. X.) with large hairy buds and rather

large fruit with coarse cup-scales, the second (PI. XI.) with medium-
sized nearly smooth buds and moderate or large fruit with rather
closer or finer scales, and the third (Pl. XII.) with still smaller buds
and acorns, these with still closer and finer cupule-scales. That the
groups are closely allied is to be expected, and in bud and cup char-
acters Q. coccinea connects the first two; but a glance at the plates
will show how distinct the collective impression produced by each
group is, and how far from natural it is to place Q. marilandica (PI.
X., f. 1) next Q. nigra (Pl. XII., f. 2) because of a compara-
bility in leaf shape that has worked mischief in the names both have
borne, or Q. palustris (Pl. XII., f. 1) next Q. rubra (Pl. XI., f. 5)
or QO. velutina (Pl. X., f. 4), or to separate Q. Catesbai (PI. X.,
f. 2) far from Q. digitata (Pl. X., f. 3) or even Q. marilandica,
as is commonly done. An interesting feature in the cup of these
latter species is that the scales are inflexed around its margin—com-
monly in the first, occasionally in the others—a character to be con-
nected with Engelmann’s observation" that the tips of the leaf lobes
are bent in in vernation in Catesbei, though it is not absolutely lim-
ited to them.

Though homogeneous in external bud and fruit characters, the
group of swamp oaks is subdivisible into a series with broad-lobed
leaves, the water oaks, in which the leaves are flatly imbricated in
the bud as in the black and scarlet oaks, and a series with narrow
entire leaves, the willow oaks, in which the leaves are revolute in
the bud—strongly so in Q. imbricaria, Q. Phellos, Q. laurifolia and
Q. pumila; less rolled in Q. cinerea and Q. myrtifolia, and thus
approaching the western groups, though the fruits of the two are
very different. Such Mexican bristle-leaved oaks as QO. Grabami are
evidently of this general stock.

Grouped primarily according to the characters here selected rather
than leaf form, these oaks fall into line as follows:

Brack Oaks.
Quercus marilandica (black jack).
Quercus Catesbei (turkey oak).
* Engelmann, /. c., 376.

170 TRELEASE—CLASSIFICATION OF BLACK OAKS.

Quercus digitata (Spanish oak).
Quercus velutina (quercitron).

SCARLET OAKS.
Quercus coccinea (scarlet oak).
Quercus ellipsoidalis (Hill’s oak).
Quercus rubra (red oak).
Quercus texana (Texas red oak).
Quercus nana (bear oak).

SWAMP OAKS.
Water oaks.
Quercus palustris (pin oak).
Quercus nigra (water oak).
Quercus georgiana (Stone Mountain oak).

Willow oaks.
Quercus imbricaria (shingle oak).
Quercus Phellos (willow oak).
Quercus laurifolia (laurel oak).
Quercus pumila (running oak).
Quercus brevifolia (cinnamon oak).
Quercus myrtifolia (myrtle oak).

OLIve Oaks.
Quercus hypoleuca (white-leaf oak).
Quercus Emoryi (Emory’s oak).

Hotty Oaks.
Quercus agrifolia (evergreen oak).
Quercus Wislizeni (highland oak).
Quercus californica (Kellogg’s oak).

[April 19,

1912.] TRELEASE—CLASSIFICATION OF BLACK OAKS. 171

EXPLANATION OF PLATES.

In all, the buds are enlarged three diameters, and the acorns and cu-
pules are of natural size. No special care has been taken in the selection

_ of material, except to get mature winter buds because the differences are less

evident while they are developing, and to pick out average fruits from the

varying assemblage presented by each species.

Pirate X. Brack Oaxks.—1, Quercus meen: 2, QO. Catesbai; 3, Q.

digitata; 4, Q. velutina. —

Pirate XI. Scarret OaKs.—1, Viesvas coccinea; 2, Q. ellipsoidalis; 3, Q.

texana (the northern form known also as Q. Schneckii) ; 4, Q. texana (from

Texas) ; 5, QO. rubra; 6, Q. nana.

- Prate XII. Swamp Oaxs.—Water Oaks: 1, Quercus palustris; 2, Q.

nigra; 3, Q. georgiana. Willow Oaks: 4, Quercus imbricaria; 5, Q. Phellos;

6. Q. laurifolia; 7, QO. pumila; 8, Q. brevifolia; 9, Q. myrtifolia.

Priate XIII. Western Brack Oaxs.—Olive Oaks: 1, Quercus hypoleuca;

2, QO. Emoryi. Holly Oaks: 3, Quercus agrifolia; 4, QO. Wislizeni; 5, Q. cali-

fornica.

{7

PROCEEDINGS

-AMERICAN PHILOSOPHICAL SOCIETY
HELD AT PHILADELPHIA |
FOR PROMOTING USEFUL KNOWLEDGE

Jury, 1912 No. 205

‘HEREDITY OF FEEBLE-MINDEDNESS.
By HENRY H. GODDARD, PH.D.

(Read April 19, 1912.)

_ In formulating the laws of human thought, the logicians recog-
_ nized what they called the fallacy of too few heads of classification.
_ This might be called the fallacy of ignorance or of immaturity. It
_ is characteristic of immature minds, the child mind and the begin-
nings of ae science. To the child who has just learned the meaning
_ of “ papa” and ‘ canal it often happens that all men are“ papas”
and all women are “ mammas,” while the child born in certain local-
s ities believes that all men are either white or black. Similarly in the
beginnings of science, we are limited through a lack of knowledge to
a few heads of classification and our development comes by increas-
ing our genera or species. Coming more closely to our particular
problem, we find that for many years, mankind has been divided into
those who are sane and those who are insane, the latter class includ-
ing all those people whose behavior was so far from established
norms that they could not get along eceacilaen</ in the world by
themselves.

To-day the mental defectives or feeble-minded are alluded to in
England as cases of congenital insanity. However, of late, we have
begun to draw a rather sharp line between insanity and mental

PROC. AMER. PHIL. SOC. LI. 205 I, PRINTED JULY 23, 1912.
173

174 GODDARD—HEREDITY OF FEEBLE-MINDEDNESS, [April 19,

defect or feeble-mindedness, the distinction being that feeble-
mindedness is an arrest of development whereas insanity is a degen-
erative process, the victim not simply stopping where he is but
losing a part of the mentality that he once had. In the early years
of childhood, it is practically impossible to differentiate between
these two. The result is that we are apt to call everything feeble-
mindedness which occurs in the early years. And we have assigned
as a cause of the feeble-mindedness whatever physical condition
seems to be uppermost. For example, if we have a case of imbe-
cility which also has hemiplegia, we classify it as a case of hemi-
plegic feeble-mindedness and assume, as a rule, that the cause which
has resulted in the brain lesion producing the hemiplegia, has also
caused the mental defect.

The thesis to be maintained in this paper is that this is not neces-
sarily the case but rather that our whole problem will be simplified
if we recognize some more heads of classification in this particular.
To put the matter in another form, we may say that as the result of
our study into the heredity of feeble-mindedness, we have come to
the conclusion that the human family is divisible not only into the
sane and insane, the healthy and diseased ; but further, the sane and
healthy group is subdivided possibly into many groups or strains;
and that the mental capacity or possibilities varies widely in the
different strains, but is fairly constant in each strain and is trans-
mitted regularly, that is to say, so long as any given strain is kept
pure, we will have the same mental capacity and possibilities genera-
tion after generation; that variations occur here as they do in the
plant and lower animal world; that inbreeding and crossbreeding
produce new combinations just as they do in plants or animals. To
illustrate, we have only to call to mind almost any line of animal
breeding. There is the genus horse, with various species, and within
the species there are so-called strains. Every breeder knows that
those strains will be transmitted and that they must be reckoned
with in all attempts to breed horses for particular purposes or with
particular characteristics. The same thing is true of dogs. No
trainer would attempt to train a bull dog to retrieve or to point.
Furthermore coming closer to our special problem, every trainer

19121 GODDARD—HEREDITY OF FEEBLE-MINDEDNESS. 175
knows that among the pointers, there are those that are easily and
quickly trained to be high grade pointers; there are other strains that
can never be trained to anything like the same efficiency.

The same thing seems to be true of the human race. There are
strains that are capable of high mental development. These give us
- our geniuses or our brilliant leaders, or families with marked and

valuable characteristics. Then there are strains with less capacity
but still able to get along in the world and adapt themselves to their
environment with fair success. These two groups are, of course,
normal people. But when we go a step lower, we find a group of
people whose capacity for development is so limited that they can
_ never attain sufficient intelligence to get along in the world. Here
we come to our group of feeble-minded and just as there are strains
of varying degrees of intelligence which we call normal, so there
are strains of varying degrees of defective intelligence, varying
from those that are almost normal, almost able to take care of them-
selves, down to those who are so lacking in intelligence that they
can do little more than procreate.
We are, for the time being, eliminating entirely all disease and
____ abnormalities and fixing our attention upon what we call pure strains
_ of feeble-mindedness. Furthermore, when this strain of pure
feeble-mindedness is found uncomplicated as it often is, the mental
condition is the chief peculiarity and the physical organism is often-
' times a remarkably perfect one, so that the strain is not recognized
i= _ by any of its outward appearances, but only by those actions and
movements which result froma less well-developed mentality. There
can be found in institutions for the feeble-minded, persons of as fine
physique and good health as can be found anywhere. This extends
often even to details. For example: a dentist asserts that the finest
set of teeth he has ever seen is in the mouth of an imbecile in an
institution for feeble-minded.
Now it happens not unnaturally that these strains of defective
_ mentality are liable to diseases of various kinds just as are so-
called normal people. Whether the various diseases and accidents
= affect them in the same way as they affect people of normal intelli-
_____- gence, remains to be seen. It seems probable that in many cases the

xg
cee
a
a
™
4
aes
es
Be
x
re
a
ae
pe
‘33
me

176 GODDARD—HEREDITY OF FEEBLE-MINDEDNESS. [April 19,

effect is more serious and this accounts for the fact that the physical
condition has in so many cases masked the hereditary factor and so
our understanding of feeble-mindedness is usually much compli-
cated by the presence of these diseased conditions. An illustration
will make this clear.

Feeble-mindedness and epilepsy are often combined, constituting
a complex that is very troublesome.

‘In the writer’s opinion the problem would be much simplified by
recognizing two groups: first those who belong to a strain of pure
feeble-mindedness upon whom epilepsy has been grafted, and second
a group of normal people suffering from epilepsy but in whom the
epilepsy has produced an arrest of development and even set up a
degenerative process. The clinical appearance of the two groups
is much the same. The family history is needed to differentiate
them.

Apparently also the Binet tests are useful on this line, those
who are primarily feeble-minded testing in the same manner as
other feeble-minded persons, that is to say, succeeding in the tests
up to a certain definite point beyond which they cannot go, whereas
those who are primarily normal but have deteriorated as a result
of the epilepsy, show a scattering in their answers, that is to say, in
some particulars, they show the intelligence of, for example, ten-
year-old people while in others, they are only six, the degenerative
processes set up by the epileptic attacks having destroyed certain
mental processes and not others.

I shall not at this time go further into the question of the effects
of the various diseases upon the different strains of mentality but
shall content myself with showing you on the screen the portraits of
-ases of pure feeble-mindedness together with charts, showing that
it is hereditary.

Note: The author showed a number of slides of perfectly nor-
mal-looking people but whose mentality ranged from that of two-
year-old children up to that of ten-year-olds, although their physical
age was in each case much greater. Each portrait was followed by
a slide showing the hereditary character of the defect in several
generations. One portrait with its accompanying family chart is
here shown as an illustration.

19912.) GODDARD—HEREDITY OF FEEBLE-MINDEDNESS. 177

Age 24 years.
Mental age, Io years.

QUEE

B MUTE MUTE ‘Ss

| 2ND HUSBAND ist HUSBAND a

506)a! ol a! One —wO
o@-

’ a

Squares are males: circles females. F = feeble-minded; A = alcoholic;
S# = sexually immoral; T = tuberculous; B = blind; d inf = died in infancy;
I=insane; small black circle = miscarriage; E = epileptic. Hand points to
child in the institution for the feeble-minded.

TRAINING SCHOOL FOR FEEBLE-MINDED CHILDREN,
VINELAND, N. J

THE HEREDITY OF EPILEPSY ANALYZED BY THE
MENDELIAN METHOD.

By DAVID FAIRCHILD WEEKS, M.D.
(Read April 19, 1912.)

Until recently it has been considered sufficient to determine the
known number of epileptic ancestors or other relatives of a case of
epilepsy, and then take this proportion as the index of heredity, with
the natural result that the index increased as the study of the family
was extended, resulting in a difference of from 20 to 75 per cent.,
as determined by different workers.

In our study of the inheritance of epilepsy at Skillman, we are
endeavoring to analyze our data by the Mendelian method, which
assumes that the inheritance of any character is not from the par-
ents, grandparents, etc., but from the germ plasm out of which every
fraternity and its parents and other relatives have arisen.

The relation of soma (body) and germ plasm is as follows:

1. If the body possesses a trait of the recessive to normality sort,
it lacks the unit character upon which normal development depends,
and it is prima facie evidence that the representative of that char-
acter is absent from its germ plasm, consequently such a person can-
not transmit the character in question. The condition in the case
when the determiner is absent may be called nulliplex.

2. If the body possesses a trait of the dominant to normality
sort, it is evidence that the germ plasm has the corresponding de-
terminer. But either one of two conditions is possible. (a) The
determiner was derived from both parents, so that it is double in
the germ plasm, and all the germ cells have the determiner; or else,
(b) it came from one parent only, in which case it is single in the
germ plasm, or simplex, and half of the germ cells have the deter-
miner and half lack the determiner.

A moment’s consideration will show that three kinds of somatic

178

%
Ri
§
e
#

*@
Vi
nf
er
a

ala ac
lle a
Were t : F

eins

1912.) ANALYZED BY THE MENDELIAN METHOD. 179

and six kinds of germ plasm matings, disregarding sex, are pos-
sible. These latter matings, together with the sort of offspring
they may be expected to yield, are as follows:

I. Nulliplex < Nulliplex = 100 per cent. Nulliplex.
II. Nulliplex x Simplex = 5oper cent. Nulliplex; 50 per cent. Simplex.
Ill. Simplex xX Simplex = 25 per cent. Nulliplex; 50 per cent. Simplex;
25 per cent. Duplex.
IV. Nulliplex x Duplex = 100 per cent. Simplex.
V. Simplex x Duplex = 50 per cent. Duplex; 50 per cent. Simplex.
VI. Duplex X Duplex = 100 per cent. Duplex.

Practically, it is not always easy to distinguish the simplex from

a ¢ éad

Fic. 1. In the above chart both of the parents are epileptic. There were
four children from this mating, three of them were epileptic and the fourth,
after the chart was made, was discovered to be feeble-minded. This case is
of the type nulliplex < nulliplex. E, epileptic; F, feeble-minded; A, alco-
holic; N, normal. Case 3,667.

the duplex condition, although frequently a simplex condition is
indicated by an intermediate mental status.

The new method of obtaining the material is largely responsible
for any advance which has been made in the study of the inheritance
of epilepsy.

The field workers visit the parents and other relatives of the
patient and interview them in their homes, where they are at ease,
and free from restraining influences, as would not be possible else-
where. The family physician, clergyman, school teacher and other
interested persons are also interviewed, for the purpose of securing
an accurate account of the mental status, environmental conditions,

180 WEEKS—HEREDITY OF EPILEPSY [April 19, —

diseases, and causes of death, if dead, of as many relatives of the
patient as possible. :

The data thus obtained are recorded and tabulated on a heredity
card, in such a manner that future additions and corrections can
be easily made, without destroying or detracting from the work done
to date.

The history and chart are filed with the case records. A cross
index of place, name and trait help to locate the defective strain by

‘i 62060
6066000

Fic. 2. This chart is a good illustration of the source of a large numbe-
of almshouse inmates. The central figure is an epileptic woman who has
had seven illegitimate children all by different men; three of these died in
infancy and the remainder are defective. This woman, who has spent the
greater part of her life in the almshouse, was taken from there to keep house
in a miserable hut for a feeble-minded man, one of whose feeble-minded
sons married the feeble-minded sister of an epileptic man who is a patient
at the New Jersey State Village. Her daughter, who is the patient, had
one illegitimate child before she was cared for by the proper authorities.
E, epileptic; F, feeble-minded; A, alcoholic; N, normal; Sx, sex offender;
— — — —,, illegal union. Case 586.

— euvase,

family name, defect and locality. An index of the names of indi-
viduals charted facilitates the tracing of families from one pedigree
to another. A register is kept by counties, showing as far as pos-
sible the locality from which the individual comes; the age; the
institution or other care received, no care, etc., of every epileptic
known to us in the state. A reference index ef relatives living in
different counties, states or foreign countries, together with the
name and location of any institutions in which they have been ©
treated, is also kept.

‘It will be seen at a glance that data thus obtained have proved to
be much more significant and trustworthy than the familiar family

ne Shae Ere TA A sae
Eee

eee eee
is ie ‘chy

1912.] ANALYZED BY THE MENDELIAN METHOD. 181

history obtained from the patient or his guardian at the time of his
admission to the institution, and we are convinced, justifies careful

_ study, which is more than can be said of the former history.

This study is based on 397 separate pedigrees of this number,

___ however, seven came from the same fraternity ; in another three are

from the same fraternity and their mother is also a patient in the
institution. In four other cases, two patients are from the same
fraternity, and besides these, four others have been found to be

A) LJ O--/A) sJ@CHO6 80
2 :
A] |) Al E 279, ALI O £)
CY! WW! W ES =

ZO WiSORLIO Bae

J@&a8GaGedsh G&

Fic. 3. The central mating in this case is that of a feeble-minded man
and an epileptic woman. The man had an epileptic brother, who in turn had
a feeble-minded son, while the woman came from an insane mother and had
a feeble-minded uncle. There were six children; the first died in infancy, the
second and fourth were feeble-minded, the third was epileptic, the fifth is a
feeble-minded boy, who is at The State Home for Boys, while the last is

_ also feeble-minded, and he is cared for at a Children’s Industrial Home.

The mother and father are dependent on the town for support, the mother’s
mother died in the State Hospital for the Insane. This mating is of the
type nulliplex X nulliplex. E, epileptic; F, feeble-minded; J, insane; A,
alcoholic; N, normal. Case 4,360.

related, thus connecting their pedigree with others already acquired,
so that only 381 different families are involved in our study.

The frequency with which the same name occurs on many of
the charts indicates that there is little doubt but that future study
will determine their relationship and show some of these to be of
the same blood.

The total number of epileptics recorded on the charts was 756,
which was 3 per cent. of the total chart population of 21,558, or 9
per cent. of the 8,608 classified individuals.

182 WEEKS—HEREDITY OF EPILEPSY [April 19,

In analyzing our data, we have classed it under the six kinds of
matings, as follows:

NULLIPLEX & NULLIPLEX.

There are twenty-seven fraternities in which both parents are
either epileptic or feeble-minded; 16 of these matings are principal
matings and II secondary matings.

In three of the matings both of the parents were epileptic. Of
the 28 conceptions, two were stillbirths, 3 miscarriages, 3 died before

o——o om
ee Se :

Fic. 4. This chart shows the offspring in a case where both the father
and mother were feeble-minded; the father was alcoholic and died of tuber-
culosis, while the mother was sexually immoral and was the illegitimate child
of a feeble-minded woman. There were seven children; one, the sixth, is
thought to be by a different father; of the others five are feeble-minded and
one is epileptic. After the father’s death the mother married a feeble-minded
man, who is the younger brother of her daughter’s feeble-minded husband.
E, epileptic; F, feeble-minded; A, alcoholic; T, tubercular; Sx, sexually
immoral; N, normal; — — — — — , illegal union. Case 3,037.

two years of age, and one (an infant) is too young for classification,
leaving 19 about whom something definite is known. Of these, 8
were epileptic, 3 feeble-minded, and 8, who came from parents who
developed epilepsy late in life, were tainted. (Fig. 1.)

In fifteen fraternities in which one parent is epileptic and the
other feeble-minded, there were 81 conceptions; 7 were too young

1912.] ANALYZED BY THE MENDELIAN METHOD. 183

to be classified, and 19 died before 14 years of age. Of the 55 clas-
sified, 29 were epileptic, 26 feeble-minded and I insane. (Figs. 2
and 3.)

In nine fraternities in which both parents were feeble-minded,
there were 56 conceptions. Of these, 4 died before two years of age,
14 were too young for classification. Of the other 38 of whom
something definite is known, 7 were epileptic, 28 feeble-minded and 2
drunkards, who may or may not have been feeble-minded. (Fig. 4.)

AL-O 1) o~ fF},

oe amb art

nN ® ® AF,@ POOCLOCO0®
7 WY |IN
¥ NOW
NIN @a&
=

S$ $n
©

&
NV
&

Fic. 5. In this history the mother is epileptic and descended from an
epileptic mother; the father, who is alcoholic, is also syphilitic; his mother
was insane. The first child is epileptic, the next two are neurotic, the last
died before two years of age, and following this there were thirteen mis-
carriages. In contrast to the central mating this chart shows two normal
matings; in these cases all of the children are normal. E, epileptic; F, feeble-
minded; S, syphilitic; J, insane; Sx, sex offender; N, normal; A, alcoholic;
d inf, died in infancy. Case 1,772.

These matings are of the type nulliplex < nulliplex, and seem to
justify the expectation that all children from these unions will lack
the determiner for normality.

In five fraternities where one parent is insane and the other
epileptic or feeble-minded, there were 29 conceptions; 5 died before
14 years of age, 2 unknown. Of the 22 available for study, 2 are

184 WEEKS—HEREDITY OF EPILEPSY [April 19,

epileptics, 4 feeble-minded, I insane, 8 tainted and 7 seemingly
normal. These latter came from two fraternities, where in one
case the father’s insanity seemed to be traumatic and in the other
alcoholic.

NULLIPLEX X SIMPLEX

Under this classification we have grouped separately those fra-
ternities in which one parent was alcoholic.

In the consideration of the fraternities where one of the parents
is epileptic or feeble-minded, and the other alcoholic, we have
classed as alcoholic all of those parents who are habitually hard
drinkers, or who go on frequent sprees.

In thirty-five fraternities there were 226 consepeodel 21 are yet
too young to be classified, 79 died before 14 years of age (which is

Fic. 6. In this case the father is epileptic and the mother is neurotic.
The father had an epileptic brother and an epileptic sister. There were three
children; the first was normal, the second epileptic and the third too young
as yet for classification. This is an illustration of the nulliplex X simplex
type of mating. £, epileptic; F, feeble-minded; N, normal; T, tubercular;
A, alcoholic. Case, 3,402.

35 per cent., a high death rate). Of the 126 remaining, 39 are epi-
leptic, 38 feeble-minded, and 28 showing some other taint (1 insane,
3 migrainous, 16 neurotic, 5 alcoholic and 3 sexually immoral), with
only 21 apparently normal.

In these matings of the type nulliplex X simplex, we should 5
expect 50 per cent. nulliplex, that is, epileptic or feeble-minded and
50 per cent. simplex, that is, apparently normal or showing only
some slight defect. We have, however, 61 per cent. nulliplex, 39
per cent. simplex, the increase over the expectation being probably :

1912.) ANALYZED BY THE MENDELIAN METHOD. 185
due to the fact that the alcoholic parent was also mentally defective,
_ or that the alcoholism may, through poisoning the germ cells, be a
contributing cause of epilepsy. (Fig. 5.)
In addition to the above, there were six matings where one parent
"was insane and the other alcoholic. Of the 29 conceptions, 9 died in
infancy, 6 are unclassified, leaving 14 of whom something definite is
known. Of these, 7 were epileptic, 3 feeble-minded, 2 neurotic and
2 apparently normal.
In considering the fraternities in which one of the parents is
either epileptic or feeble-minded, and the other “tainted,” we have
' classified as “tainted,” the migrainous, neurotic and those who are
mentally weak.
a There were twenty-five fraternities with 161 conceptions; 60
died before 14 years of age, 24 are too young for classification, leav-
ing 77 for study. Of these, 27 or 35 per cent. are epileptic, 9, or II
per cent., feeble-minded, 24 showing some slight nervous or mental
- weakness, and 17 normal.
In these matings we should expect 50 per cent. nulliplex and 50
_ per cent. simplex. We obtained 47 per cent. mentally defective and
_ ‘+53 per cent. apparently normal, or showing some slight weakness,
_ which is a very close fitting to the expectation. The discrepancy
__ may be accounted for by the possible classification as simplex of
: individuals who are in reality nulliplex. (Fig. 6.)
= . In six matings of an insane parent with a “tainte ” one, there
' @ were 45 conceptions; 10 died in infancy, 9 are unclassified. Of the
t ___-26 others, 9 were epileptic, none feeble-minded, 8 tainted, with 9
{ 4g apparently normal.
| NULLIPLEX X DUPLEX.

Under this classification we have tried to place the fraternities
of which one parent was epileptic or feeble-minded, and the other
reported normal. .

In thirty-eight fraternities with 223 conceptions; 62 died in
infancy, 36 are too young for classification. Of the 125 others,
39 or 32 per cent. are epileptics, 14 or I1 per cent. are feeble-minded,

186 WEEKS—HEREDITY OF EPILEPSY [April 19,

and 26 or 21 per cent. are neurotic, while 46 or 39 per cent. were
apparently normal.

This fitting confirms very closely with what might be expected
from the type simplex by nulliplex, indicating that the parents who
have been classified as duplex (normal) are really simplex, in that
half their germ-cells have and half lack the determiner for normality.

Twenty of the normal parents had ancestors who showed some
mental or nervous weakness, this would justify their classifica-
tion as simplex. In 26 cases little is known about the ancestors of
the normal parent. The available information about three would

® ®@®toO @ —)

41 5 &
olalulul: Selula O0O®
aie tO Cy.
wa@ IGOUG gag OW
7 HO®

BPO OBODL a
a ] [4] G

Fic. 7. The central mating in this pedigree is that of an epileptic
woman, who descended from an epileptic father and has several defective
relatives, and a normal man, who comes from normal ancestors. There were
six children, two epileptic, and four neurotic. E, epileptic; F, feeble-minded;
I, insane; T, tubercular; B, blind; N, normal. Case 2,207.

indicate that they are mentally normal. Judging from their off-

spring, we believe that subsequent data will show that these appar-

ently mentally normal parents descended from tainted ancestors.
(Fig. 7.)

Eleven matings of an insane and normal parent, resulted in 50
conceptions; 10 died before 14 years of age, 7 are too young for
classification. Of the 33 remaining, 12 or 36 per cent. were epi-
leptic, 2 or 6 per cent. feeble-minded, 18 or 55 per cent. seemingly
normal, while 1 or 3 per cent. was neurotic. :

ANALYZED BY THE MENDELIAN METHOD. 187

SIMPLEX X SIMPLEX.

Under this type of matings we have grouped those fraternities
coming from matings where neither parent can be classified as
' normal, or called mentally deficient, but showing some mental or
nervous weakness.

4 There were eighty-four matings of this type, with a total of 540
q conceptions. 152 died in infancy, with 52 unclassified. Of the 336
g _ others, 97 were epileptic and 17 feeble-minded, in other words, 114,
. or 35 per cent., were nulliplex, an excess of Io per cent. over the

expected 25 per cent. (Fig. 8.)
In these matings there was an excess of epileptic and feeble-

Fic. 8. In the central mating, the alcoholic, unchaste man who comes
_ from a “tainted” strain, married a migrainous woman. There were four
children: the first is normal, the second, criminalistic and has been an inmate
_ in the State Reform School, the third is an epileptic, and the last is neurotic.
_ This is an illustration of the simplex X simplex type of mating. E, epileptic;
F, feeble-minded; J, insane; A, alcoholic; T, tubercular; M, migrainous; N,
normal. Case 2,029.

minded beyond the expectations, which would seem to indicate that
some of these tainted conditions are more closely allied with the
cause of epilepsy and feeble-mindedness than has so far been recog-
_ nized. The fact that there were more than five times as many epi-

_leptics as feeble-minded persons, tends to show that the neurotic
_ and otherwise tainted conditions are more closely allied with epi-
3 lepsy than with feeble-mindedness. It is a significant fact that out
i= _of the 84 matings, in four of them both parents were migrainous,
while in 23 one parent was migrainous, and 14 of these were mated

188 WEEKS—HEREDITY OF EPILEPSY [April 19,

to alcoholics. Of the remaining 57 matings, in 7 both parents were
alcoholic, and in 30 matings one parent was alcoholic, making a
total of 44 (14-++ 30) where one parent was alcoholic.

SIMPLEX & DUPLEX,

Under this classification we have attempted to analyze those
fraternities in which one parent was “tainted,” although not epi-
leptic or feeble-minded, and the other one normal.

In one hundred and twenty-seven fraternities there were 790

o--0 a@
OmDOOMOE 6 ® @ Ost

a

Fic. 9. In this case a neurotic woman, descended from an epileptic
woman, married a man who was mentally normal, but who had an epileptic
sister. The first child died at the age of seven, the second has defective
speech, the third, fifth and sixth were normal, the fourth was migrainous,
the seventh had St. Vitus dance and the last is an epileptic. E, epileptic; F,
feeble-minded; 17, migrainous; A, alcoholic; N, normal; J, tubercular.
Case 2,673.

conceptions. Of the 477 classified as normal, mentally deficient or
tainted ; 130, or 27 per cent., are epileptic, 15, or 3 per cent., fect :
minded. (Fig. 9.)

At least 74 of these reported normal parents have been found
by the field worker to have tainted heredity, so that these matings

1912.] ANALYZED BY THE MENDELIAN METHOD. 189

4 are of the type simplex X simplex, and the findings would seem to
indicate that all the matings are of this type.

Duplex X DUPLEX.

Under this type of mating we have grouped all those fraternities
in which both parents are recorded as normal.

In the study of seventy-six fraternities there were 441 concep-
tions ; 62 are too young for classification or entirely unknown, 103

Fic. 10. This chart shows the mating of two normals. They each have
_ defective relatives. Of the seven children the fourth is an epileptic and the
others seem to be normal. E, epileptic; F, feeble-minded; A, alcoholic; N,
normal. Case 2,983.

died before the age of 14 years. Of the 276 others, 172 are normal,
75, or 27 per cent., are epileptic and 3, or I per cent., feeble-minded,
with I insane and 25 tainted, that is, 197 (172-+ 25), or 71 per cent.,
are duplex or simplex in character. (Fig. 10.)

‘ The results show that these normal parents are not duplex, but
: 2 _ simplex, and a study of their ancestors justifies this conclusion, for
. a in at least 45 of the matings, one or both of the parents descended
from tainted ancestors.

PROC, AMER. PHIL. SOC., LI. 205 J, PRINTED JULY 23, IgI2.

190 WEEKS—HEREDITY OF EPILEPSY [April 19,

All the available facts point toward the conclusion that the vari-
- ous common types of epileptics seen in institutions lack some element
necessary for complete mental development, which is also true of
the feeble-minded.

Two epileptic parents produce only defective offspring, when
both parents are either epileptic or feeble-minded, their offspring
are also defective, the defect taking the form of epilepsy, feeble-
mindedness or some other neuropathic condition. This is also true
of feeble-minded parents.

In the light of our present knowledge, the results obtained from
the study of our data do not justify the classification of the reported
normal parents of epileptics as duplex. We are forced to the belief
that their germ plasm is simplex, and feel confident that more com-
plete data would show the taint in their ancestors.

Our data seem to support the belief that alcohol is a cause of
defect, in that more children of alcoholic parents are defective than
where alcoholism is not a factor.

That there are more than five times as many epileptics as feeble-
minded persons in those fraternities coming from matings where ~
neither parent can be classed as normal, or called mentally defective, —
seems to indicate that neurotic and otherwise tainted conditions are
more closely related to epilepsy than to feeble-mindedness.

New Jersey State VILLAGE For EPILEPTICS,
SKILLMAN, N. J.

IS THE CONTROL OF EMBRYONIC DEVELOPMENT
A PRACTICAL PROBLEM?

By CHARLES R. STOCKARD.
(Read April 19, 1912.)

¥ Under favorable natural conditions two normal parents should,
___and usually do, produce a vigorous normal offspring. When, how-
ever, the conditions of development are modified or if in the second
4 place the parents are not entirely normal the offspring is usually
more or less defective. I shall attempt to show that the proper
development of the offspring is dependent upon two main factors,
first the physical qualities of the parental germ cells, and second the
environment in which the embryo develops.

One is at first sight apt to think that deformities and defects
are rare among men and other animals; but closer observation will
show that the really structurally perfect individual is rather excep-
tional. Gross anatomical defects or monstrosities are frequently
_ found among all animals, while lesser defects of minor importance
are to be observed in a majority of individuals. These defects often
cause no inconvenience, and indeed, we may be ignorant of their
presence, since they are generally internal. Yet many apparently
_ normal individuals sooner or later suffer or may actually die from
__ some hidden developmental imperfection. The well-known con-
: = genital defects of the heart and other parts of the vascular system,
_ digestive tract, etc., as well as the numerous developmental arrests
_ in various parts of the body constantly remind the observer of the
great loss in ability and energy that the race suffers as a result of
faulty development.

These defects in construction must be considered a disease which
causes the death of about 23 per cent. of the human race before or
_ shortly after the time of birth (Sullivan’s studies and French sta-
tistics), and handicaps a certain proportion of the survivors through-

191

192 STOCKARD—CONTROL OF DEVELOPMENT. _ [April 19,

out their lives. We carefully study and use all known precautions
to protect ourselves against post-natal infections and diseases, and
much interest and time is given to combating the causes, yet little
is said and scarcely anything done towards a control of development,
or the hygienic protection of the developing individual.

_ This is really a morphological problem and is as truly a part of
the fight against disease as is the treatment of abnormal physiological a
processes. It is not all of morphology to describe and study the
detail of bodily structure, but its important task is to understand
and analyze that structure, and if possible control and regulate its

formation: and thus, if propérly developed its goal is to relieve the

race of its great structural disease—a disease which affects more
individuals than any other one malady of man. .
To most persons the above task seems at first thought a futile
undertaking, and any one suggesting such control or preventive
treatment might be interpreted as indulging in fanciful speculation.
Yet the data available from the studies of defective persons in
different countries of the world, and the experimental evidence fur-

nished by work on lower animals makes the correction or preven- — a
tion of developmental defects seem even today a problem to be a

practically handled to a slight degree at least.

To proceed as with any other disease, we must first ascertain
the cause of these conditions, as the possibility of a cure depends
upon the nature of the cause.

Are monstrosities and defective development due to some innate —
change within the germ cells of the parent, thus being incurable, as
many former workers would have us believe? Or, are they due to
changes produced in the germ cells by the action of some unusual
condition in the body of either the male or female parent, or finally
may they not be due to an unusual environment acting upon the de- :
veloping embryo itself? In both of the latter cases the conditions
are open to regulation or control. These questions may only be solved
experimentally and the experiments have proven that the great ma-
jority of monsters are due to the action of unusual conditions upon
either the parental germ cells or the developing embryo. There may be
soine changes of form or variations in animals which are due to

t912.] STOCKARD—CONTROL OF DEVELOPMENT. 193

innate changes in the germ-plasm but even these when fully under-
stood may possibly be shown to result indirectly from some change
in the chemical surroundings.
First to consider the modifications induced in the developing egg
or embryo by a strange chemical environment. It has been found
for the eggs of a number of animals that develop normally in sea-
water that when certain chemicals are added to their environment
they develop into various unusual forms.
_I experimented for several years on fish’s eggs and found that
on adding any one of a large series of salts to the sea-water that
the eggs developed abnormally and gave rise to a great number of
-monstrous individuals. The types of the monstrosities were vari-
able, and the same kind of monster often resulted from different
treatments. This was to be expected, but the important problem
was to produce some definite type of monster in great numbers
_ with any given treatment. This I finally succeeded in doing and in
some experiments got as many as 90 per cent. typical cyclopean
or monophthalmic monsters. These types of monsters first occurred
in solutions of MgCl, in sea-water. In such solutions as many as
50 in 100 eggs formed one-eyed cyclopean embryos. Since Mg
has the power to inhibit activity in animals and so acts as an anes-
thetic I determined to try the action of a number of such substances
on the developing eggs to ascertain whether they might also inhibit
the lateral migration of eye parts. Alcohol, ether, chloroform,
-chloreton, etc., were employed and cyclopean monsters resulted from
eggs developing in all of these substances. Alcohol gave the most
_ decided effects and inhibited the normal production of eyes in almost
all cases. All of these anesthetics act more particularly upon the
_ central nervous system of the adult and it is important to find that
_ the development of the nervous system is also especially affected
‘by them. In alcohol solutions the embryos showed almost every
_ gross abnormality of the brain which is known to occur, and the
spinal cord was often defective.

I have repeated the experiments of Féré with hen’s eggs and find
that when these eggs are exposed to fumes of alcohol many abnormal
_ chicks result. When hen’s eggs are placed in closed dishes over

194 STOCKARD—CONTROL OF DEVELOPMENT. _ [April 19,

evaporating 95 per cent. alcohol enough of the fumes penetrate the
shell and enter the contents of the egg to cause the developing
chick to form abnormally.

McClendon has lately found that an excess of CO, and other
substances also cause cyclopia and brain abnormalities. Many
other workers have shown the effects of the environment on the
developing egg.

It is, therefore, proven that the experimenter has the power to
take an egg which would normally give rise to a perfect animal and
by proper treatment he may cause it to form a typically abnormal
individual. The monster may in many cases be able to survive and
move about. No one can question that in these experiments the
unfavorable environment modifies the form of the resulting indi-
vidual.

Does this also occur in embryos developing in the mother’s body?
Children are born which exhibit the same types of deformities as
those described above. Syphilitic mothers usually abort or give
birth to abnormal children and there is much evidence to indicate
that an alcoholic mother is more apt to produce an abnormal child
than is a non-alcoholic mother.

Tubal pregnancies are common among women with venereal dis-
eases and in such cases the embryo must necessarily develop under
abnormal environment, having a poor surface for placental attach-
ment in a region not adapted to the conditions of pregnancy. The
conditions for embryonic nutrition are poor. Mall has found that
while only 7 per cent. of uterine pregnancies in his records con-
tained pathological embryos, that 96 per cent. of the embryos in
tubal pregnancies were pathological, only 2 in 46 specimens being
normal. This is strongly indicative of an abnormal environment as
the cause of abnormalities. If these monsters were due to inherent
tendencies in the germ cells one should not expect more abnormal
tubal than uterine embryos.

Among lower mammals it has bees shown that dogs fed on
alcohol produce deformed and otherwise defective pups. I am now
conducting a series of experiments with guinea pigs which show
that a female treated with alcohol during her pregnancy will often

1912.] STOCKARD—CONTROL OF DEVELOPMENT. 195

abort or produce defective young, while the control animals are
giving birth to normal young. Many more cases could be cited if
time permitted.

Bp Experiments on lower animals, therefore, show and human sta-
tistics seem to indicate that the cause of structural disease is often
an abnormal developmental environment. To prevent such a disease
the developmental conditions must be controlled and rendered as
nearly normal as possible.

The second consideration is whether abnormal chemical environ-
ment may act on the parental germ cells in such a manner as to
cause them to change and become incapable of giving rise to a normal
individual. It is well known that certain disease toxins such as that
_ of syphilis and substances such as alcohol and lead effect various
a body tissues so as to render them unfit for normal physiological
activity. It is, therefore, only logical to suppose that the same or
similar substances may effect the germ cells and so derange their
chemical constitutions as to cause them to give rise to offspring of
peculiar structure and qualities.

Bertholet has found that alcohol has a particular affinity for the
reproductive glands just as it does for the nervous system. In
examining the structure of the testicles from a large number of
chronic alcoholics it was shown that spermatozoa were absent en-
tirely or degenerate in form (azoospermy) in a majority of the
cases. It is doubtless true that the ability of the spermatozoa to
accomplish normal fertilization would be affected long before any
definite structural change could be observed.

The crucial case is the treatment of the male in such a way as
to render his spermatozoa unable to produce a normal development
when combined with a healthy egg from a normal female. In this
case the action must of necessity be on the germ cell only and not
on both the egg and embryo as it might be in treating a female
mammal.

It must be recognized that an individual owes its structure and
character to the peculiar chemical constitution of the germ cells
from which it arises. The germ cells of two species of animals are

196 STOCKARD—CONTROL OF DEVELOPMENT. _ [April 19,

probably as different chemically as the animals are morphologically.
Therefore, if the chemical nature of the germ cells is disturbed or
injured by the action of poisons in the animal’s blood they will prob-
ably show this injury in the type of individual to which they
give rise.

Constantine Paul long ago found in studying 88 cases of preg-
nancy among women lead workers that 71 resulted in abortion, pre-
mature labour, or stillbirth while only 17 children were born alive
and of these five died within the first year. Several of these women —
later produced healthy children after leaving this work. (This indi-
cates that when the cause is known for defective development the
cure may often be established by its removal.) Lead not only
effects the developing foetus but also acts directly upon the germ
cells as is shown in the case of men working in lead while their
wives were not exposed to the poison. Many of the offspring from
such fathers are aborted and the children born are epileptic, feeble-
minded or generally defective.

To return to the results furnished by the guninea pig experi-
ments referred to above—I have chosen healthy individuals and
treated them daily with the fumes of 95 per cent: alcohol to about
the point of intoxication. Feeding alcohol and giving it by stomach
tube was first tried, both of these methods were unsatisfactory as
the guinea pigs did not take alcoholic food in sufficient quantity and
the stomach tube disturbed the animals to such a degree that I
feared the experimental result might be vitiated even though it
could be partially controlled. The inhalation method is perfectly
satisfactory ; the animals are placed in a copper tank having a screen
floor which holds them above the evaporating alcohol. The alcohol
is breathed directly into the lungs and_affects the animals readily,
in much the same manner as weak treatments of ether or chloroform |
would. The animals are thus put into a condition of chronic alco-—
holism, being almost intoxicated six times per week. Many of these
guinea pigs have been killed and their lungs, liver and other organs -
e~amined and found to be perfectly normal so far as their appear-
ance goes. The conjunctiva over the eyes is very often affected
by the fumes, during the beginning of the treatment the eyes often —

STOCKARD—CONTROL OF DEVELOPMENT. 197

1912.)

become white, this is transitory in most instances and the eyes finally
_ clear again and remain in a normal condition from then on. Most
of the specimens have fattened under the alcohol treatment.
4 The matings have been made in such a fashion as to test several
- questions. First, alcoholic males are mated with normal females,
paternal influence, the crucial test for the effect upon the germ cells.
_ Second, alcoholic females are paired with normal males, the maternal
‘ influence plus the direct action on the developing embryo. Lastly,
alcoholic males and females are paired.

The results of 40 such matings are shown in Table I. The
decided effects of the alcoholic treatment are seen when the records
_ are compared with those of the normal guinea pigs.

TABLE I.
MatTIncGs oF ALCOHOLIZED GUINEA-PIGS.
Num- No Num-
Result | Still- ee oe
Condition of Animal. | 'Sf,0 jor Early) born | "Start | fiers | Early Deaths. | SYoinin
ings. ara
Alc. male X
nor. female ..... 24 I4 5 8 5 5 5
xt 4
Nor. male X alc. =
female......... 2 I o ° I ° I
Preg. 2 in
utero, 1 de-
formed.
Alc. male X alc.
Pema es 14 Bas) 3 5 I I °o
; died 6th day
SenmMary:........ 40 25 8 13 - eC 6
6 in 25
female. Control. 8 °o ts) o 8 o 15
: 15 in 15

: In the 24 cases in which normal females were mated with alco-
_holic males, 14 gave negative results. Some of these probably
aborted early as the parents were all fertile and the female is apt to
eat the young before they ‘have been observed when they are born
: ‘prematurely. Five of the matings gave stillborn young, in some
____ cases they were born a little before term. Litters were born alive but
| i _ the young died soon after showing many nervous symptoms, such

198 STOCKARD—CONTROL OF DEVELOPMENT. | [April 19,
as epileptic-like seizures, and all died in convulsions. Only two
litters consisted of normal offspring and these young, five in all, seem
healthy though unusually small. It is thus seen that in 24 matings

of normal females with alcoholic males only two gave normal results.

Whereas in the control animals all matings have resulted in the pro- 4

duction of normal offspring.

Only two matings were made between normal males and alco-
holic females. One of these gave no result or was possibly aborted
very early and lost, while the other mating produced one female off-
spring that lived to become pregnant by an alcoholic male. This
last mentioned female was killed by accident, two embryos were
found im utero one of which was deformed.

Fourteen matings were made between alcoholic males and
females. Ten gave no result or aborted very early and were eaten,
while four cases showed the following records. One young was —
born weak and died in convulsions on the sixth day after birth.
Two cases of premature births of dead young. One female had
young in utero when killed.

TABLE II.

SuccessivE Matincs oF TEN FEMALES.

Animal, ist Mating. 2d Mating. 3d Mating. 4th Mating.

No. 10 alc. Alc. male 4=1, |Alc. male 4=0. |Alc. male 6=o. |Alc. male 4=1,
young died 6th : embryo in u-
day. tero 2nd week. —

No. 12 alc. Alc. male 5 =o. |Alc. male 5 =o. |Alc. male 4=0.

No. 11 ale. Alc. male 6=o0. |Alc. male 6=o. |Alc. male 5 =2, |Alc. male 4=0.
premature, ‘
still-born.

No. 13 nor. Alc. male 5 =1, |Alc. male 5 =o. |Alc. male 4=0.

stillborn.

No. 17 nor. Eth. male 1 =o. |Eth. male I =o.

No. 18 nor. Alc. male 5 =o. |Alc. male 5 =o. |Alc. male 6=o0.

No. 7 nor. Eth. male 2 =2, |Eth. male 2=o0. |Eth. male 2 =o.
premature,
stillborn.

No. 14 nor. Eth. male 3 =o. |Eth. male 3 =o.

No. I9 nor. Alc. male 4=0. |Alc. male 6=1, |Alc. male 6=o. |Alc. male 5 =4,

stillborn. small but ac-
tive. ah

No. I5 nor. Ale. male 6=2, |Alc. male 5=o0. |Alc. male 5=2, |Nor. male =1,
stillborn. died 4th week.| normal young. ~

1912.] STOCKARD—CONTROL OF DEVELOPMENT. 199

These results stand in marked contrast to the records of the
control, which show all normal conceptions and normal offspring.

The second table shows the results of successive matings in ten
of the females. The varying success of the conceptions in the same
individual are striking.

Nice has quite recently recorded a similar series of experiments
with alcohol on mice. Alcohol was given to the mice in their food.
Nice finds that while there was a certain fatality among the offspring
from alcoholic parents as compared with those from normal parents,
where there was no fatality, yet nevertheless the offspring of alco-
holic parents actually grew faster than those from the control. This
may indicate that alcohol is not equally poisonous in its effects upon
all animals, as might really be expected. The germ cells of mice
may be more or less immune to the action of alcohol. It is well
known that the action of alcohol is different in its effects on indi-
viduals from different human families. Some alcoholics show
chiefly nervous disorders, hallucinations, delirium, etc., while others
may have no nervous symptoms but exhibit various derangements
of the digestive glands, kidneys, etc., or may have a fatty degenera-
tion of almost all organs.

Finally it may be concluded that the experimental evidence goes
to show that the development of an offspring may be modified by
either treating the parents so as to affect their germ cells or by
subjecting the developing embryo itself to unusual or injurious
conditions.

The causes of many congenital defects are therefore known. It
is possible to control embryonic development to such an extent as
to produce abnormal structures. May not the proposition be re-
versed and unfavorable environments be treated in such a manner
as to render them favorable to normal development? Diseased
mothers may in some cases, at least, be made fit for the function
of reproduction.

The regulation of structural disease becomes then a problem of
morphology and hygiene. It is most important, and must precede,

200 STOCKARD—CONTROL OF DEVELOPMENT. _ [April

or go before, the selective mating of human beings or the eugenics
movement. The most intellectual will rarely submit to direction
choosing a mate, yet every productive pair will welcome any pos
means of improving the quality of their offspring.

While preventive measures are being used to protect the. post-
natal life of the individual, why not agit as far as Bik its Pr :
natal development ?

~ CoRNELL University MepIcaL CoLLece,

DEPARTMENT OF ANATOMY,
New York Ciry.

- AN AVIAN TUMOR IN ITS RELATION TO THE
: | TUMOR PROBLEM.

By PEYTON ROUS, M.D.
(Read Abril 19, 1912.)

The behavior of malignant tumors has stimulated many hypothe-
ses as regards their causation and yet in some of its phases has
appeared to disprove all. The suggestions afforded by other normal
or pathological growth processes lead in numerous and diverse direc-
tions. Today, despite an immense accumulation of data, the solu-
tion of the tumor problem waits upon fresh findings; and to fore-
tell the line of research which will yield these findings has not
seemed possible.
The successful transmission of neoplasms of the lower mammals,
a few years ago, seemed at first to carry with it the immediate solu-
tion of the problem. But this did not prove to be the case. In order
to obtain a tumor-strain for investigation, an animal with a “ spon-
taneous ” tumor was required; and the transmission of the growth
was soon found to involve a transplantation process,—as genuine a
transplantation as that of skin or other normal tissue. A new
_ tumor in the strict sense was not thus engendered, but to a portion
_ Of the old another host was given. All efforts to separate out a cause
__ for the neoplasm or to transmit it by other means than by graft of
the living neoplastic cells were unsuccessful. The consistently nega-
tive results of such work, together with the general behavior of the
transplanted neoplasms, have led many investigators to forego the
idea of an extrinsic cause for malignant tumors in general and to
attribute them to some inherent cell-perversion, or else to a cell-de-
rangement precipitated by factors temporarily active. But it may be
pointed out that the basis for such a conclusion so far as it rests
upon experiment, rests upon work with the tumors of few species,
Those of the rat and mouse have been employed almost exclusively.
201

202 ROUS—AVIAN TUMOR IN ITS RELATION [April 19,

The findings here to be presented were obtained in the study of
a malignant tumor of the chicken, which closely resembles in its
general characters the mammalian neoplasms, including those of
man. That such growths exist has been generally recognized; and
their status as true tumors has been established. But like the neo-
plasms of other birds, of reptiles, amphibians, and many mammals,
they have remained almost unutilized for research. Our tumor of
the fowl proved transplantable and has thus far been observed in
several hundred chickens. It is a connective-tissue growth, a
spindle-celled sarcoma. From its tissue there has been isolated a
causal agent, ultramicroscopic in some, perhaps in all, of its forms,
and undoubtedly a living organism. Though the agent gives rise
to the sarcoma, and accompanies the growth, it does not take any
obvious share in the disease phenomena. These are referable to the
behavior of the neoplastic cells, a point now to be illustrated.

The original sarcoma arose in a young fowl of pedigreed, pure-
blood stock, and its transplantation was successful only in this
fowl’s blood-relations. A similar peculiarity has been often ob-
served on the transplantation of normal tissues, but it has not been
noted in association with the transmission of diseases caused by a
parasite. After propagation in several successive hosts, the sar-
coma became less precise in its demands and could be transplanted
to non-related fowls of the same variety. But like certain delicate
tumors of mammals it was for a long time transmissible only within
the limits of this variety, and at the latest test still grew most readily

in such hosts. All attempts to transmit it to animals of other species a 4

have failed.

A transplantation of neoplastic tissue is involved in the growth’s
transmission under ordinary circumstances, and only by special
means has it been shown to be unnecessary. Ordinarily when bits
of the sarcoma are placed in a new and susceptible host they survive,
are vascularized, and proliferating, form a new tumor. The multi-
plication of the implanted cells obviously suffices to produce the neo-
plasm. In the histological pictures there is no indication that the
elements of the host ever become incorporated as true neoplastic —
tissue. No tumor arises in hosts so unfavorable to the engrafted |
tissue that it dies.

1912.) TO THE TUMOR PROBLEM. 203

The growth consists of spindle-shaped cells supported by a
scanty, vascular framework; and the sole differentiation which these
4 cells undergo is to an attenuated form with the production of a few
_ intercellular fibrils. In the disposition of the cell-strands and bundles
there is no suggestion of focal arrangement such as frequently in-
dicates, in the case of the granulomata, the presence and position
of an exciting cause; while at the growth’s borders a cellular reac-
tion is practically absent. The tumor elements multiply rapidly by
mitosis and amitosis, and the neoplasm grows, not only by expan-
sive enlargement but also through an active invasion and replace-
ment of the normal structures by tumor cells. In the course of
the invasion tumor cells frequently penetrate the walls of blood or
lymph-vessels, and are freed in the circulation. By their transpor-
tation, lodgment and growth secondary sarcomata are caused at
points distant from the primary mass. This important characteristic
_ of tumors in general has been placed beyond doubt as regards the
avian growth by means of direct experimentation. The host, which
_ at first seems unaffected by the tumor, emaciates as the growth in-
-_ creases in size, and, if it escapes intercurrent processes eventually
dies in coma.
The conditions which determine the success or failure of the
sarcoma when transplanted to a new individual are in general refer-
able, as are those of its behavior and dissemination, to the sarcoma
_ cellsas such. The influence of variety of the host and of blood-rela-
_ tionship has already been referred to. Young hosts prove most
3 favorable, as for all transplantable tissues, normal or neoplastic.
_ Hosts which are ill of causes that involve emaciation are relatively
_ unfavorable, a circumstance noted in its relation to mammalian
_ growths by other workers, and especially interesting because these
hosts are more susceptible, as a rule, to the frankly infectious
processes. A certain proportion of hosts, although of the proper
variety for the tumor’s growth, manifest a resistance such that it
does not develop when implanted in them; while others in which
the growth has developed and retrogressed are completely resistant,
for a time at least. Similar types of resistance have already been
demonstrated for the tumors of rats and mice. Furthermore they

204. ROUS—AVIAN TUMOR IN ITS RELATION [April 19,

have been elicited against a normal tissue capable of growth on
transplantation (embryonic tissue).

Taken together the foregoing traits identify the chicken sarcoma
as a typical malignant tumor. In them there is nothing to suggest

the presence of a parasitic cause for the disease, but much that has

been held to favor the view of an intrinsic cell-derangement.

For the first attempts to separate out the sarcoma’s cause filtra-
tion was employed. The tissue of a rapidly growing tumor was
ground with sand, taken up in Ringer’s solution, shaken for some
time, centrifugalized, and the supernatant fluid was passed through
a Berkefeld filter which held back small bacteria. The injection of
a few cubic centimeters of the limpid fluid thus obtained gave rise to
the characteristic spindle-celled growth in fowls previously normal;
and this growth was capable of further transplantation through an
indefinite series of hosts. More recently the causative agent has
been differentiated from the living tumor cells by drying, by glyceri-
nization and by repeated freezing and thawing,—processes which the
tumor cells fail to survive. It remains active for many months in
dried sarcomatous tissue, and for at least one month in tissue placed
in 50 per cent. glycerin. It is quickly rendered innocuous by tem-.
peratures above 53° C., by 50 per cent. alcohol, by 2 per cent. phenol,
by saponin in high dilutions, by chloroform and toluol in the pro--
portions which prevent bacterial growth during autolysis, and by
autolysis itself. It will not pass through a dialyzing membrane, nor,
in our experience, through a porcelain filter. These various features
seem sufficient to identify it as a living organism in distinction from
a ferment. The organism has never been directly observed in fresh
or stained preparations; and the morphology of the individual —
tumor cells does not suggest its presence. Attempts to cultivate
it in vitro have not as yet proven successful. ‘

The neoplastic change brought about by the agent takes place
slowly compared with the proliferation of the cells, once they have -
become sarcomatous. Growth of the tumor, dissemination, injury —
to the host, immune processes, all are referable to these cells sud-
denly endowed with new properties. The introduction into a sus- t
ceptible fowl of a large amount of the filterable agent is not in itself ‘

1912.] TO THE TUMOR PROBLEM. 205

sufficient to cause a tumor. The development of a growth under
these circumstances is conditional upon the presence of a cell-
_ derangement, such, for example, as is produced by the injection of
3 _infusorial earth. Yet even when the element of cell-derangement
__ has been supplied, and the agent injected in quantity, a consider-
_ able percentage of the fowls fail to develop a sarcoma. The nature
4 of the factors responsible for this failure has not been determined.
_ The importance of cell-derangement as a contributory cause of
human sarcomata has long been recognized.
a The chicken sarcoma is strikingly non-infective under ordinary
_ conditions. During the last three years more than a thousand fowls,
__ with or without the tumor, have been kept together in close quarters,
' yet no instance of natural transmission has been observed. An
examination of numerous spontaneous chicken tumors from various
a sources has shown that the sarcoma is not epidemic. These facts
_ find an explanation in the various factors by which the agent’s action
is conditioned.
q In conclusion it should be stated that the experiments with the
_ chicken sarcoma have not yielded a method whereby a causative
__ agent can be separated from the tumors of rats and mice. But they
3 _ clearly prove that the characteristics of malignant tumors in general
a are compatible with the presence of a living causative agent. Such
-acause for them seems, indeed, far from improbable.
a Note: Dr. James B. Murphy has shared, as joint author, -in the
;. work on the chicken sarcoma since the recognition of the latter’s
filterable cause; and more recently Dr. W. H. Tytler has aided in
the study of some of the growth’s problems.
LABORATORY OF THE ROCKEFELLER INSTITUTE FoR MEDICAL RESEARCH,
New York.

PROC. AMER. PHIL. SOC., LI. 205 K, PRINTED JULY 24, I9I2.

THE PROTEIN POISON.

By VICTOR C. VAUGHAN, M.D. .

(Read April 19, 1912.)

For many years I have been studying the chemistry of the bac-
terial cell. In 1900 I devised the large tanks for growing massive
cultures. These have proved quite satisfactory, and I have been
able to get bacterial cellular substances quite free from all impuri-
ties, in large amount. After many years of unsuccessful effort
Wheeler and I, in 1903, succeeded in partially isolating the poison- __
ous group from the cellular substance of certain pathogenic bacteria,
This we did by heating the cellular substance with a two per cent.
solution of sodium hydroxid in absolute alcohol. When this is —
done at the temperature of boiling alcohol the cell substance is
split up into a poisonous and a non-poisonous part. The former is
soluble in alcohol, while the latter is insoluble. This gives us not
only a method of preparation, but also one of partial separation. —
I may say that the evidence that a distinct cleavage of the bacterial 4
cell is secured is shown by the fact that all the carbohydrate and all
the phosphorus in this cellular substance remains in the insoulble or q
non-poisonous part. The poisonous portion contains no phosphorus
and no carbohydrate, but it does give the biuret and the Millon 4
reaction, and must therefore be classed as a protein. This protein
has never been obtained as yet in a state of chemical purity. The
best preparation that we have been able to secure up to this time
kills guinea pigs when injected intravenously, in doses of .5 of a mg.
There are certain reasons for believing that its effect upon man is
still more pronounced.

Having found this poison in pathogenic bacteria we next looked
for it in non-pathogenic organisms, and we found it in these quite
as abundantly as in the pathogenic forms. It therefore follows
that the pathogenicity of the bacterial cell does not depend upon

206

, agi] VAUGHAN—THE PROTEIN POISON. 207

its capability of producing a poison, because all bacterial cells con-
tain a poison. Whether a germ is pathogenic to a given species of
animal or not depends upon its capability of growing and multiply-
ing in that animal’s body.

Next we looked for this poison in certain animal proteins, such
as the white of egg, the proteins of blood serum, the casein of milk,
etc. In all of these the same or a like poison was found by the same
method. Later we tested vegetable proteins, such as the gluten of
flour, the zein of corn meal, the edestin of hemp seed, etc. Up to
the present time we have examined more than thirty proteins of
bacterial, animal and vegetable origin, and in all of these the same
poisonous group has been detected.

It has long been suspected, and indeed I may say, known, that
the protein molecule contains a poisonous group. At first it was
__ supposed that the diverse proteins which man takes in his food are
but slightly altered in the alimentary canal, and before absorption.
It is now known that this is not true, and that in the healthy man
all proteins are broken down into amino acids by the ferments of
the alimentary canal, and that these amino acids are, either during

. 9 absorption or directly thereafter, resynthesized so as to form the

s proteins which are characteristic of man’s body. The precipitin
test has demonstrated that every species of animal has its own spe-
cific protein bodies. Every albuminous molecule contains a poison-
ous group. Peptones injected into the blood act as poisons; there-
fore the peptone group contains a poisonous molecule, and it is this
_ poisonous molecule in the peptone group which we have succeeded
in partially isolating. The symptoms induced by this protein poison
_ are marked and characteristic. They divide themselves into three
_ distinct groups. Soon after the injection of a minimum fatal dose
in one of the lower animals there is evidence of peripheral irrita-
tion. This is shown by the fact that the animal becomes restless
_ and attempts to scratch itself, not only the part adjacent to the
point of injection, but every portion of its body which it can reach.

This is known as the stage of peripheral irritation. In man it is
___ characterized by itching and by an erythematous eruption which

if begins about the place of injection, and rapidly spreads over the

208 VAUGHAN—THE PROTEIN POISON. [April 19,

body. In the second stage the animal lies in a lethargic condition,
with rapid, difficult respiration. It prefers not to move, and when
urged to do so it shows that it has partially lost the power of
coordinating its movements. It drags its posterior extremities, or
it sways from side to side. This is known as the paralytic stage.
The third stage manifests itself by clonic covulsions, which repeat
themselves after intervals of rest, becoming more and more violent,
until death results. After reaching the convulsive stage recovery is
rare, although it does occasionally occur. The symptoms are pro-
duced by the injection of protein poison, whether obtained from
bacterial, animal or vegetable proteins. It should be stated that in
order to study these symptoms properly the dose should approach
the minimum quantity. When the dose is excessive the first and
even the second stage may not be observed. The animal is speedily
thrown into a convulsion, and death results within a few minutes.
When a non-fatal dose is given the first and second stages appear,
and may last in guinea pigs for an hour, possibly two, but recovery
is rapid and apparently complete. It is of importance to note this
fact, that when recovery does take place it follows rapidly, and
apparently the animal is as well as ever within two or three hours,
and possibly earlier.

We had studied this protein poison and its effects upon animals
when the phenomenon of protein sensitization, improperly called
anaphylaxis, was discovered. All will understand that protein sensi-
tization is demonstrated by injecting a protein, any protein, into an
animal and waiting for a certain length of time, or until the animal
becomes sensitized, when a second injection into the same animal
causes the symptoms which I have described, in the same order as
observed when the protein poison is administered, and that the final
effects are the same. Comparing the phenomena of protein sensiti-
zation with those of protein poisoning Wheeler and I in 1907 offered
the following explanation of protein sensitization: When a foreign
protein is injected into an animal it must be disposed of in some
way. Unless introduced in large amount it is not eliminated by the _
kidney. It soon disappears from the circulating blood and is de-
posited in various tissues, the exact place of deposition depending —

1912.] VAUGHAN—THE PROTEIN POISON. 209
upon the kind of protein injected and the species of animal. In
_ _ order to deal with this foreign material certain body cells develop
- a specific proteolytic ferment, which splits up the protein injected,
and no other. The first dose is gradually split up, and consequently
produces no recognizable effect upon the animal. When a proper
interval of time is allowed to elapse before the second injection,
this new ferment, in the form of a zymogen is stored up in certain
cells of the body, and when the second injection of the same protein
is made this zymogen is activated, and converted into a ferment
which splits tp the injected protein with great rapidity, setting free
the same poison which we obtained by splitting up proteins with
sodium hydroxid in absolute alcohol. This explanation of the
phenomena of protein sensitization was published by Wheeler and
myself in 1907. Recently it has been confirmed in France by Nicolle
and Abt, and in Germany by Friedberger. It is true that Fried-
berger does not fully give us credit for this work. He says that

__we suggested this explanation, and he has demonstrated it. It is

unfortunately true that much of the scientific work done in Amer-
_ ica must go to Germany and be approved before it is accepted by
other Americans. This is due to our lack of confidence in ourselves
and in one another. The German has so long been accustomed to

stamp his products as “ made in Germany,” that much of our scien-
; p p y

tific work comes back with this stamp upon it. However, it is not
my purpose to complain about this matter. My European confreres

a _ have given me, on the whole, fair credit for work done along this

line.

. More recently we have attempted to use the knowledge which
__ we have gained in the study of the protein poison in the explanation
of many of the phenomena of immunity and of disease. The essen-
_ tial difference between egg-white and the typhoid bacillus is that the
former is a non-labile, dead protein, while the bacillus is a labile,
living protein. If egg-white could grow and multiply after being

introduced under the skin, or into the blood of an animal, it would

be just as dangerous to prick a finger with a needle moistened with
this relatively harmless, bland protein as it would to inoculate one-
self with the anthrax bacillus. As early as 1907 Wheeler and I held

210 VAUGHAN—THE PROTEIN POISON. [April 19,

that protein sensitization and bacterial immunity are one and the
same thing. In sensitization the animal dies on the second dose. In
immunity the animal survives the second dose. Sensitization and
immunity are therefore apparently antipodal, but are in fact the
same thing. A man drinks water containing the typhoid bacillus,
and he does not develop typhoid fever that day, nor the next. He
passes through a period of incubation, which in typhoid fever is
somewhere about eight or ten days. During this time the typhoid
bacillus is multiplying in his body in great numbers, and in doing so
it is converting his proteins into typhoid proteins. Suddenly the
period of incubation stops and the disease begins to manifest itself.
The period of incubation stops when the body cells have become
sensitized to the typhoid protein, and begin to break it up. From
that time on the fight is between the living cells of the body with the
ferment which they pour out, and the bacilli.

It occurred to us that if this theory be true we might demon-
strate it by repeated injections of small quantities of some protein
body, and determine what effect such injections might have upon
body temperature. In these experiments we have used egg-white
principally because we wanted to get away from cellular structure
and from the supposed influence of life. We wanted to take a dead
substance. Of course in doing so we recognized the fact that egg-
white does not grow and multiply in the body, and consequently we
must keep up the supply by repeated injections. I have published
several papers upon this, notably in the Zeitschrift fiir Immumitats-
forschung, and therefore I am relieved from the necessity of going
into detail in this article. Suffice it to say that by varying the size
of the dose and the interval between the doses one can induce in the
lower animals any kind of fever that one wishes. One can place an
animal in a typhoid condition, and by repeated injections keep the
animal in this condition with a temperature identical with that of
typhoid fever for days and weeks. On the other hand, by more
frequent injections one can induce in a rabbit an acute, fatal fever,
terminating in a few hours; or, by again varying the size of the
dose and the interval, one can secure at will the picture of remittent —
or intermittent fever. Fever, therefore, results from the introduc-

1912.]

VAUGHAN—THE PROTEIN POISON. 211

___ tion of a foreign protein into the body, the sensitization of the body

cells to that protein, and finally the cleavage of that protein by the
ferment elaborated by the sensitized body cells. Now in nature
practically all the proteins that find their way into the body undi-

_ gested are living proteins, in the form of bacteria or protozoa. They

grow and multiply in the body, without materially disturbing for the

_ time being, the life of the individual. This continues during the
_ period of incubation but when the body cells have become sensitized

and begin to split up the foreign protein the period of incubation
ceases and that of disease begins.

We have shown that repeated injections of foreign protein not
only cause fevers of various kinds, but lead to emaciation of the
animal body, to increased elimination of nitrogen, and to decreased
urinary secretion, and, in short, to all the phenomena that are char-

4 acteristic of the febrile diseases. Death from any of the infectious

diseases is due to one and the same poison, and that poison is a con-

= _ Stituent of the protein molecule. Symptoms vary in different dis-
eases for two reasons: In the first place, the foreign proteins have

different predilection places in the body in which they are deposited.

_ In the second place the ferment which splits up these foreign pro-

_ teins is specific for different diseases. The most successful diagnos-

tician cannot determine the nature of the bacterial organism which

causes the symptoms of meningitis. The symptoms are the same

a so long as the organ involved is the same. The meningitis may be

3 _ due to the meningococcus, to the streptococcus, to the typhoid bacil-

: lus, or to the tubercle bacillus. Still, the symptoms are the same
_ because the cleavage of the foreign molecule occurs in the same part

of the body. Again, every medical man knows how difficult it is

_ to distinguish between typhoid fever and acute general miliary tuber-
_ culosis, because in both instances the foreign protein is largely in the
_ blood current. As I have stated, most bacterial proteins have pre-
_ dilection places in which they are deposited. The typhoid bacillus

prefers the mesenteric and other glands; the pneumococcus is de-

a posited generally in the lungs, though it may be found in the intes-

tinal walls. The meningococcus finds its favorite place for growth
and development in the coverings of the brain. The tubercle bacil-

212 VAUGHAN—THE PROTEIN POISON. [April 19,

lus grows most frequently in the lungs, though it has fed upon man
for so long a time that it is now able to sustain itself in almost any
part of his body.

From what has been said it must follow that fever on the whole
is a beneficent process. It is one of the phenomena of the parenteral
digestion of proteins. The foreign protein has gotten into the body,
is growing and multiplying, and in doing so is utilizing the proteins
of man’s body. It must be destroyed, and the body cells pour out a
ferment which digests the foreign protein. This is nature’s way of
disposing of the foreign material, and it is apparently about the only
way that nature has of doing it. I repeat therefore that fever on the
whole is a beneficent process. It is an attempt on the part of nature
to get rid of the invading protein. Like many other of nature’s proc-
esses it may be overdone, and death may result from fever, per se.

That fever does result from a fermentative cleavage is shown
not only by the facts which I have already enumerated, but those
which we have learned in combating fever. Nearly all, if not all, of
the anti-febrile reagents which have been employed in medicine are
anti-ferments, and they lower the temperature by retarding the
process of protein cleavage. Both natural and acquired immunity,

apart from toxic immunity, may be explained by the facts as stated — _

above. In natural immunity the foreign protein is either unable to
grow and multiply, and this means that its ferments are unable to
split up the proteins of the body, or the ferments of the body split
up the invading protein before it has time to grow and multiply.
This explains natural immunity, whether it be racial or individual.
Acquired immunity is explained by the fact that the first attack
of the disease, or inoculation with a modified virus, develops in the
body cells a ferment which is stored up, and which on a second
injection of the same protein, acts rapidly, and effectively, and splits
up the invading virus. In vaccination for smallpox we use a virus
modified by its passage through the cow. This modified smallpox
virus develops in the body cells a ferment which is capable of split-
ting up the smallpox virus, and the next time this individual comes —
in contact with a smallpox patient, or receives the smallpox virus, it |
is split up and destroyed before it has time to grow and multiply.

1912.] VAUGHAN—THE PROTEIN POISON. 213

This also explains the beneficial effects that undoubtedly have been
obtained by the various vaccines now so widely and often so unin-
telligently used.

_ I wish to suggest that the exanthematous diseases may be ex-
plained by the fact that the foreign proteins of certain diseases are
deposited in the skin, and that this tissue is the site of the destruction
of the foreign body. I may say in support of this that we have
repeatedly injected egg-white into the ear vein of rabbits. After
varying periods of time we have shown by sensitizing animals with
blood taken from the heart that the egg-white has wholly disap-
peared from the circulating blood of the rabbit. Later it can be
shown that this egg-white has been deposited in the skin, in the
kidney, in the brain, and in various other organs of the rabbit. It
seems to me that our work upon the protein poison furnishes us
with facts, by means of which we are able to explain many of the
phenomena of immunity and of disease.

SOME GEOCHEMICAL STATISTICS,

By FRANK WIGGLESWORTH CLARKE.
(Read April 20, 1912.)

More than twenty years ago, in a paper on the relative abun
dance of the chemical elements,? the present writer compared a
number of averages of analyses of igneous rocks, representing dif-
ferent regions, and showed that they were essentially identical.
From these averages, combined into a general average, the mean
composition of the igneous part of the lithosphere was computed,
and the result obtained has since been confirmed by the study of
much larger masses of data than were originally attainable.* Other
estimates, made by other computers upon similar lines, have since
served to check my own, thereby giving to my conclusions a high ~
degree of probability. The figures obtained have received a fairly —
general acceptance, and have served as a basis for other computa-
tions of a fundamental character.

This acceptance, however, has not been universal. The process
of averaging analyses is criticized by several writers,* who urge that
it is unphilosophical. An analysis of a dike rock is given the same
weight as that of a widespread and important formation, whereas —
each rock should be weighted in accordance with its volume. But
we do not and probably cannot know these volumes, partly because ~
detailed surveys are lacking, and partly because a surface outcrop —
fails to tell us what bulk of rock may lie below. If we try to esti- F
mate the volumes of the many rocks represented in the average, or :

1 Published by permission of the Director of the U. S. Geological Survey.

? Bull. Phil. Soc. Washington, 1889, Vol. 11, p. 131. Also in Bull. 78,
U. S. Geological Survey, 1891, p. 34.

®See Bull. 491, U. S. Geological Survey, “ The Data of Geocheneanes
Pp. 22-27.

*See, for example, Daly, Proc. Amer. Acad., 1910, Vol. 45, p. 211;

Loewinson-Lessing, Geol. Mag., 1911, p. 248; and Mennell, Geol. Mag., 1904,
p. 263, and 1909, p. 212.

214

q re] CLARKE—SOME GEOCHEMICAL STATISTICS. 215

even the areas exposed, we shall find ourselves relying in great
' part upon arbitrary assumptions, a procedure fully as unphilo-
sophical as that which it would supplant. Estimates of that and
_ similar kinds have been made, most recently by Loewinson-Lessing,
' whose figures give essentially the same result as that obtained by the
4 method he has criticized. The method by volumes is doubtless ideal,
| but impracticable; and the true, philosophical procedure is to do
a the best we can with the available data. It is highly probable that
a the rocks of minor importance will balance one another, the per-
» silicic and subsilicic varieties occurring in something like equal pro-
_ portions. This supposition is sustained by the groups of average
_ analyses which will presently be given. If we trust to individual
_ judgments, different observers will reach widely different conclu-
"sions. Loewinson-Lessing supposes that the average rock may be
_ about the mean of an average granite and an average basalt ; Daly®
_ argues in favor of a fundamental basaltic magma; Mennell, whose
_ experience has been gained in a granitic region, regards granite as
> the dominant rock with all else of minor importance. Mennell
3 makes a strong argument in favor of his contention; but there is
} _ weighty evidence against it. If we study recent lavas, that is, the
' rocks which issue from unknown depths far below the surface, we
_ Shall see that rhyolite, the effusive equivalent of granite, is much
: 3 tarer than andesite or basalt. The Deccan trap, the Columbia
a River basalt, the andesites of South America, the lavas of Iceland
j a -and the Hawaiian Islands are good illustrations of this statement.
_ Moreover, the river waters which originate in areas of crystalline
rocks contain almost invariably an excess of lime over soda, which
a would hardly be the case were granite predominant. Much so-
called granite is really either quartz diorite or quartz monzonite,
_ rocks which are probably far more abundant than has been com-
: monly supposed.
ie In order to test the method of averaging analyses we may now
___ compare the averages so far obtained by different computers, and
. a then pass on to averages of rocks from distinct and widely sepa-
i a. tated areas. In these averages only the more important constitu-
= — * Bull. U. S. Geol. Survey, No. 209, 1903, p. 110.

216 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 20,

ents of the rocks are considered, for the reason that the less con- _

spicuous components have not been generally determined. They

will be separately discussed later. All the means have been recalcu-

lated to 100 per cent., and water, for obvious reasons, is excluded.

The methods for the determination of water are far from being

uniform, and the variations are so great as to obscure the essential

agreements between the other figures. The first table contains the

following averages.

(A) The average of 248 “ sdencr' ’ analyses of igneous rocks
selected by Washington from Roth’s tables. See U. S.
Geol. Survey, Prof. Paper No. 28. Average computed by
the present writer. a

(B) The average of 536 British rocks, computed by Harker. q
“Tertiary Igneous Rocks of the Isle of Skye,” Mem. Geol.
Survey United Kingdom, 1904, p. 416.

(C) Washington’s average of 1,811 rocks from all parts of the
world. U.S. Geol. Survey, Prof. Paper No. 14, p. 106.

(D) Loewinson-Lessing’s estimate of a mean between an average
granite and an average basalt. Inserted here for compari-
son with the other columns.

(E) The average of all the data relating to the composition of
igneous rocks contained in the laboratory records of the
U. S. Geological Survey. Computation by F. W. C.

A B Cc, D Ez
Sie ess 61.13 60.49 58.83 60.17 61.68
AlOss a5: I5.03 15.81 15.97 15.43 15.41
FesOs 3.5.0 os 3-50 4.90 3.36 3-55 2.67
FeO pea c 4.38 227 3.91 4.07 3-55
is @ IAG teers pain 2.86 3.81 3.88 3.62 3-97
BO cee 4.81 4.95 Biat 5.63 5.02
NAO os cet 3.95 3.26 3-95 3.24 3-49
1 RR eet a 3.32 2.84 3.19 2.82 3.07
i) & | "penne Sone -78 -53 I.05 89 17
1 Gell | YORDEE meets 125 .22 37 35 27
MO os 5 sis -19 42 22 23 sae)
100.00 100.00 | 100.00 100.00 “100.00 _

The general agreement is striking, and Loewinson-Lessing’s esti-
mate fits well in with the others. The next table is devoted to the

> 1912.) CLARKE—SOME GEOCHEMICAL STATISTICS. 217
igneous rocks of North America, and the analyses are nearly all
taken from the Survey records.

_ (FP) Average of 250 analyses of rocks from the Atlantic slope,
Maine to Georgia. 78 of these are taken from Washing-
ton’s tables, the others were made in the Geological
Survey.

_ (G) Average of 113 analyses of rocks from the Yellowstone Park.

3 (H) Average of 137 analyses of rocks from Colorado.

_ (J) Average of 195 analyses of rocks from California.

_ (J) Average for all North America. The figures of column E

combined with those of 398 analyses given in Washington’s

| F é a ee 7

a at oe 59-16 61.22 62.87 62.20 61.47
wee AlsOy.... 2... 15.17 16.35 16.66 15.87 15.63
Fey... ..... 2.16 3-30 2.67 2.12 2.67
= ae 5.36 2.58 2.40 3-46 3-22
ee eeO........ 4-92 3-47 2.06 3-93 4.02
me eeO..-..... 5-69 4.95 4.01 6.06 5-12
ae 3-46 3.83 4.11 3-49 3-62
me ee... 2.76 3-22 4.10 1.92 3-06
rete. 5... -98 -69 -74 -58 81
| -23 31 -27 27 -27
6 ee SS -08 -II -I0 -II
4a 100.00 100.00 100.00 | 100.00 100.00

7 For Europe the following data are sufficient, all the figures, ex-
cept Harker’s, having been taken from Washington’s tables.

_ (K) Harker’s average for British rocks, as previously cited.
(L) Average of 231 analyses of rocks from Norway, Sweden and
= Finland.
_ (M) Average of 420 analyses of rocks from the.German and Aus-
d tro-Hungarian Empires.
(N) Average of 250 analyses of Italian rocks.
(O) General mean of the foregoing 1,427 analyses, plus 122 of
rocks from parts of Europe not otherwise covered.
_ Good analyses of rocks from Asia, Africa and Australia, at
least as given by Washington, are too few for satisfactory combi-
nation. In the next table I give a general average for North.

218 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 20,
i, L M N O
Ao eae 60.49 60.84 58.83 60.18 59.89
AIO 15.81 16.70 15.76 15.88 16.07
Fe.Os:....... 4.90 3-75 3.96 3-90 4.18
(0G Mia ae 2:97 2.68 3-75 3-44 3.18
NIBO fore. ace 3.81 2.10 4.09 2.82 3-59
Re or As 4.95 4.39 5.73 5.83 5.30
INSSO) oss 3.26 4.98 3-74 3.36 3-70
SEC Sula 2.84 3.68 3.18 4.17 3-25
MC a ay -53 63 .67 .10 +51
3 9) RP ence /22 -I4 .22 121 .20
MnO. 42 Bs ere .07 Et Bete |
100.00 100.00 100.00 100.00 100.00

America, South America and Europe, South America being repre-

sented by the average of 82 analyses cited by Washington.

weights assigned are stated under each column.

The

J, N. America, P, S. America. O, Europe. Q, General Mean,

LO eleanor 61.47 61.13 59.89 60.76
OG. schoo 8s 15.63 16.29 16.07 15.87
WieWe. hs 2.67 3.76 4.18 3-40
FeO Baas 3.22 2.93 3.18 3.19
INE BO Sey skew as 4.02 3.18 3-59 3-78
aOR Se ae in are 5.12 5.54 5.30 5.23
WOO os SSaiee 5 3.62 4.01 3.70 3.67
Bee es cea ake cny 3.06 2.16 3.25 3.08
2G ALR nae Saint .8I 66 at .67
1 3c © Spent pean Salt 227 .I4 -20 +23
DATOS cic na gies. Fis .20 ‘23 12

100.00 100.00 100.00 I00.00
WINE oo i054 8 x 7

The last column may be taken as probably representing, with —
certain obvious limitations, the average igneous rock of the entire —
visible position of the lithosphere. The agreement between the pre- —
ceding columns isso close as to suggest that similar averages from —
other parts of the world are likely to be of the same general order.
It is hardly conceivable that analysts, dealing with rocks from such
diverse regions as Colorado, South America, Germany, Great
Britain, etc., should select subsilicic and persilicic rocks or salic and
ferric rocks, in nearly identical proportions. The selection has been’
made by nature itself, and although there are differences indicating
the existence of petrographic provinces, they are so slight as to leave

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 219
the essential identities unobscured. Some human selections are
indicated in certain regions; for example, in Norway, the high soda
is due to the disproportionate attention paid to the nepheline sye-
nites ; while in Italy the leucite rocks of Vesuvius lead to an apparent
excess of potash. In the mean for all Europe these differences
balance each other.

The general agreement between the several averages is well
‘brought out by means of the method developed in the quantitative
classification of igneous rocks. For this comparison, Professor
Iddings has kindly made the necessary computations, with the
subjoined results: Duplications of averages are of course avoided.

Average. Column. gm ng Name.
A iis 4.3 3: Adamellose.
Bk hs 4S Harzose.

Cc ih, 5.23 Monzonose.
D i 4035-3: Harzose.

E Te 43254 Tonalose.
F | 8 ee lee Ee Andose.

G Waza 34 Tonalose.
H TE, A Se: Adamellose.
I TE 4a se Tonalose.
L 58. 2 Akerose.
M ph Beale Sy Andose.

N sO aS Se a Monzonose.
= TE. 4s':35°4: Tonalose.

d og 5) Ba eae ae Andose.

O i SEE ay Tonalose
é) ae a Tonalose.

In brief, all the averages fall in class II., dosalane, and in orders
4 and 5, but near the boundary between the two. The principal
variations are in the rangs and sub-rangs, and are mainly due to the
varying proportions of the alkalies. The average rock may be
classed as tonalose, or, to use a more familiar term, as andesite. It
is evident that in order to have any statistical validity, such aver-
ages as are given here must represent fairly large areas, and a con-
siderable number of analyses. Small areas, especially those of vol-
canic islands, may vary widely from the mean; for example, analyses
of 32 Hawaiian rocks gave in the average, only 48.55 per cent. of
silica. Such local variations, however, could hardly exert any note-
worthy influence upon the continental averages which represent

220 CLARKE—SOME GEOCHEMICAL STATISTICS. _ [April 20,

more truly the general magma. They would be balanced, or more
than balanced, by other areas of granitoid or dioritic character.
The tables so far given serve only to show the probable uni-
formity of the accessible magmas. In order to complete them, a
number of minor constitutents of igneous rocks must be considered;
which, however, have only been determined with adequate fre-
quency in the laboratory of the United States Geological Survey.

For example, in round numbers, 1,100 nominally complete analyses” 4

have here been made, and in 736 of them barium oxide was deter-
mined or proved to be absent. The mean of these determinations,

counting absences as zero, is 0.100 per cent., which may be a maxi-

mum. If the remaining 364 rocks were all free from barium, and
so regarded, the mean percentage of BaO would be 0.067, a mini- —
mum. Between these two figures the most probable value would lie,
but nearer the maximum than the minimum, the mean being 0.084.
Upon this basis of computation the following table of percentages
has been constructed.

No. of Determ. Maximum. Minimum. Mean,
Ba Sees WAG 0.100 0.067 0.084
ho Os INSURE tae ba eae 616 0.040 0.022 0.031
ROO. Betas tees 577 0.0IL 0.005 0.008
POU errs ee sc 287 0.027 0.007 0.017
(SAO SORE ies ete 270 0.050 0.012 0.031
VRE a essen alk : 87 0.024. 0.002 0.013
no RLS Re 8 AES Ra 748 0.112 0.076 0.004
Prihee orise iewes 98 0.100 2 0.010 0.055
Go he te iesta Gita s 260 0.062 0.015 0.038
PEOR a cue hal 305 0.025 0.007 0.016
COs iio eoRes s 662 0.490 0.330 0.410

It is evident that these figures are not of equal significance.
Some of them rest upon too few determinations, especially those © :
for fluorine and vanadium. The experience of the Survey labora-
tory, however, leads me to believe that vanadium is very widely
diffused in the igneous rocks, and that the mean assigned to it may —
possibly be exceeded. Chromium, nickel and zirconium are also
more abundant than they were formerly thought to be. As for.
carbon dioxide, the figure given is probably much too high, for its”
presence in igneous rocks is mainly but not entirely ascribable to

ay aps.) CLARKE—SOME GEOCHEMICAL STATISTICS. 221

alteration. The maximum for CO,, 0.49 per cent., may neverthe-
less be admitted in computing the composition of the entire litho-
sphere, as an allowance for carbonaceous matter which would other-
wise escape attention. Copper does not appear in the table, but it
is sometimes determined, and the order of its abundance is perhaps
about the same as that of lithium, say 0.01 per cent. Boron, possibly,
| ought also to be taken into account, but it is seldom estimated, and
no figure can be assigned to it. As for water, which up to this point
thas been neglected; the average shown by the Survey analyses is
1.95 percent. This figure, which is excessive so far as the unaltered
igneous rocks are concerned, may, however, be taken as including
the water enclosed in the lithosphere and not otherwise estimated.
The-allowance is ample.

Including the minor constitutents, the Survey analyses alone give
the subjoined mean composition for that portion of the lithosphere
which is represented by rocks of igneous origin. The total is re-
‘calculated to 100 per cent.

ee ae ae ewsp esc sed eecctwcateeee. 50.85

TN es ea LO a ee 14.95

S&S ee a y's ows sa gin ws biciencsicwne uke 2.59

3 ee ee eat. laa os cae eee 3.45

= Es a i gh vc vane cinueesee oeeo cus 3.85

4 RUC ge el, sw a a 6 cid aie een areen MEK Se 4.87

4 BI ee ra ace ia us sons cue cus padeuns scenes 3.39
MM ae a eek Oe ee ca 6 Sons tics wen bes sa ncdudiaus 2.99
ea ey ui has cecv dn ieee ieee 1.92

, RN ee ea hos a ce kndwace geen cee 75
i: ea ete aa GS Seba do pss nese eee beebaeree 48
I ond n ha kobe wacceer ce ute By

I pss eee ao Se bes oon Be bee ec eer ees 10

RS NNTP go asst cose bs ce k cose ee 54

100.00

This differs from the general mean already given under column Q

in that it includes only the Survey data, and takes account also of

water, carbon dioxide, and the minor constituents of igneous rocks.

The important values, however, are all of the same order of magni-

tude in both estimates. The undetermined elements cannot aggre-

gate over 0.5 per cent., and represent minor corrections which may
PROC. AMER. PHIL. SOC., LI. 205 L, PRINTED JULY 24, IQI2.

222 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 20,

be considered at some future time when suitable data are at hand.
For present purposes they are negligible.

The mean composition of the sedimentary rocks has been deter-
mined in a different way. Composites of many samples were pre-
pared and analyzed as if they were single samples, a method which
saved much labor and was as satisfactory as if numerous individual
analyses had been made. The data thus obtained have been repeat-
edly published, except in the case of the shales, for which a new
estimate is here given. The analyses, recalculated to 100 per cent.,
are as follows:

(A) Composite of 78 shales plus 45 individual analyses taken from
the laboratory records of the U. S. Geological Survey.
123 shales in all.

(B) Composite analysis of 253 sandstones.

(C) Composite analysis of 345 limestones.

A B Cc
SIC ce aie cei oncs ss sae Ss an Aeon ea gal aomanens 59.23 78.33 5.18
TALE 2 SSS eripe teller kth am Ne RU ote eerie tater 15.68 4.76 81
POG sia FO aN ips oe te aie cere atenay 3-59 1.07
1 SI” GEER TREE Siena phen Gerais V PU Eon ng para EMU Fee yo 2.85 -30 54
510" ERR ae se Re care NS EE ol YS 277 I.16 7.90
CA oe as oa oes ah ee ee ee ee 2.58 5.49 42.57
Ly PE a IR OSI Ty casera tise, Noe eek aS atari 1.27 45 05
WAC P le cs cere oO 8G Es he Ne Se AS Vea 3.14 T53t +33
EN ae dias a eee oe el ate ao alee ee 4.97 1.66 Sy i &
6 | OVAL pet es aan aaa aera tak A CMU NO Aa ts -65 -25 .06
Reco aac wa arc g os a ans wie isaac ae 2.40 5.02 41.54
iO, Bee at oat ac cose as DM Men MRE A POA “15 .08 -04
iS US Vaceeehany obey aneapaieie 9 Mess neti ee pee saree eT peg -05 -05
MIIGr COMStICUCHIES Ss i< aie ose cn cieis acetaccuaeer 73 12 .16
100.00 100.00 100.00

These three columns represent the three dominant types of sedi-
mentary rocks, and differ from the figures given the igneous rocks
in certain losses by leaching, mainly of lime, magnesia and alkalies,
and in a gain of water and carbon dioxide received from percolating
waters and the atmosphere. There is a small increase in volume
consequent upon the gains; the materials lost are principally to be
sought for in that universal reservoir, the ocean.

For the relative proportions of the sedimentary rocks several

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 223
estimates have been made, which, however, can only be regarded as
rough approximations to the truth. By studying the way in which
an average igneous rock can break down, I have computed that the
shales form 80 per cent., the sandstones 15 per cent., and the lime-
stones 5 per cent. of the total.* Van Hise’ distributes them as 65,
30 and 5 per cent. respectively, and Mead,* by a graphic process, has
found 80, 11 and 9 per cent. Combining the composite analyses just
given in accordance with these ratios the following mean values are
obtained for the total composition of the sedimentaries. The fourth
column contains the average of the three separate estimates.

Clarke. Van Hise. Mead. Average.

SESS RD einer ener 59.39 62.29 56.47 59.38
MOS. «wos ee eee 13.30 11.67 13-14 12.70
ee eee ee 3.06 2.69 3-04 2.93
EE oA eo oe. Oo hae 2.33 1.94 2.31 2.19
| EAE reer ee 2.74 2.50 3.00 2.75
MER ee 2 5-01 5.46 6.50 5-65
Re Pee 1.09 -96 1.07 1.04
ST oa gee ee 2.73 2.45 2.69 2.63
Me ee ees 4.27 ° 3-77 4.23 4.09
Me oi ere i -56 -42 . 55 a
My ee re ee eee SSS 4-75 5.15 6.21 5.37
Eee <eperee 13 <2 -13 13
MEIER ie ee es -05 -05 -05 .05
_ Minor constituents. ....... -59 -53 -6I 58
s 100.00 100.00 100.00 100.00

| The first of these averages is the most probable, since it harmon-

_ izes best with the mean composition of the igneous rocks. If we
reduce it to the form adopted for the latter, by rejecting its acces-
sions, carbon dioxide and water, and also neglecting the minor con-
stituents, it may be compared with the average marked E as follows:

Igneous £. Sedimentaries.
a a ae ect haw ave nks scenes 61.68 65.70
TE ele es as ek Vs Sa go ses 15.41 14.72
ee ee dacgnis seees 2.67 3.38
We rac gers ke tccs cae 3.55 2.58
NE gh bs get ace re sie'e's 3.97 3.03
Ns Sek alow ss t's 00% do nage ene 5.02 5.54

°U. S. Geol. Surv., Bull. 491, p. 31.
*U. S. Geol. Surv., Monograph 47, p. 940.
® Journ. Geol., 15, 238.

224 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 2o,

Igneous £, Sedimentaries.
DNS wixaa'sas Venda peed enan seak es 3.49 1.21
Be 6s 0s ae Peele eek 3.07 3.03
I 5 bs eee see Ree ede ea 4 62
TO SRS ae Nera en Werarrs Rete GR PenIal rie oe) aye 27 14
PANO)” Sis sks hae ee ee ane .10 05
100.00 100.00

This comparison shows an increase in silica, due to concentration _
Alumina is lowered, iron is nearly constant although the proportions 4
of the two oxides are reversed, and potassium is constant also. Soda
and magnesia show losses due to leaching. Lime is increased,
which suggests that the 5 per cent. of the sedimentaries assigned to
limestone is probably too high. Mead’s estimate of 9 per cent. is
certainly excessive. The largest uncertainty is due to the facts that
the composite shale used for analysis did not include certain mag-
nesian rocks, and the limestones did not embrace the dolomites. The

deficiency of magnesia, however, is mainly to be found, with the —

soda, in the ocean. On the whole the comparison is satisfactory,
although the lowering of the alumina is unexplained. The least
satisfactory feature of the combination is the average composition —
of the shales; but even here the percentage of soda is probably good.
In the important igneous rocks the proportion of soda varies within —
narrow limits, and any combination of them would yield sedimentary

residues in which that oxide should show much the same relative _

loss. The Survey average for soda (column E) gives 3.49 per cent.
The mean of 100 rhyolites given in Washington’s tables yields 3.48
per cent., while for 220 basalts the percentage is 3.24. From the :
preceding table the ratio between igneous and sedimentary soda is

1.21 to 3.49, an order of magnitude which is not likely to be very —

much changed. The influence of certain variations in it will be con-
sidered later.

From the quantity of sodium in the ocean the mass and volume

of igneous rock needed to furnish it are easily computed, and also
the similar data for the sedimentaries. The oceanographic data are
fortunately quite good, even though they may not be rigorously
exact. The mean density of sea water, according to Murray, is
1.026, and its average proportion of saline matter is 3.5 per cent. by

1912] ~=CLARKE—SOME GEOCHEMICAL STATISTICS. 225
- weight. For the volume of the ocean there are several estimates.
FE In my former calculations it was taken as 302,000,000 of cubic miles,
_ while Murray found a larger figure, 323,722,150 cubic miles. These
values, however, are now supplanted by later and more definite
estimates, as follows: According to Karstens,’ the volume of the
ocean is 1,285,935,211 cubic kilometers, or 308,509,000 cubic miles.
Kriimmel,”® still later, estimates the volume as 1,329,945,870 cubic
kilometers, or 319,087,500 cubic miles. From these figures, with
density 1.026, the mass of the ocean is as follows:

Karstens, 1,319,369,526,436,000,000 metric tons.

Kriimmel, 1,364,524,469,802,000,000 metric tons.
_ The saline matter, 3.5 per cent., is therefore:
Karstens, 46,178 X 10°” metric tons.
' Kriimmel, 47,758 X 10”? metric tons.
Puting the specific gravity of the oceanic salts at 2.25, their volume
is easily found by the subjoined equation:

3.5V X 1.026 _
joo ie 2s 2?

in which V represents the volume of the ocean. The value of +
then is,

With Karstens’ volume 4,923,800 cubic miles. _

With Kriimmel’s volume 5,092,600 cubic miles.
‘The second of these values, derived from Kriimmel’s estimate of the
volume of the ocean, represents a quantity of saline matter which
would cover the entire surface of the earth, 197,000,000 square
miles, with a layer 136.5 feet deep, or 468 feet over the land area
alone. Figures like these show that the salts enclosed in the rocky
ctust of the earth are, in amount, relatively insignificant.
_ From Dittmar’s analyses of sea water, made for the reports of
the Challenger Expedition, the mass of each radicle contained in the
oceanic salts can be calculated. In the following table I give Ditt-
mar’s percentage composition of the salts, and in a second column.
the weights corresponding to the total mass of 47,758 X 10% metric
tons as found from Kriimmel’s figure the volume of the ocean.

* Inaugural Dissertation, Kiel, 1894.
* Encyclopedia Britannica, 11th ed., Vol. 19, p. 974.

226 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 20,

Per Cent. Metric Tons 1012,

kn Sibbeieaeaieairer eo ay org apa ee Phy "55.202 26,406
Be ices coh vera ee ean .188 80.8
a ike sib ot vt eek a ieee ee 7.692 3,673.5
COR ee ee a es ee .207 08.8
NE isco caihawe sac bae een ae 30.593 14,611
Re eS ie ca ene 1.106 528.2
Ga S65 sae ee er eee 1.197 571.7
MS cack tay aeaa s oeek eee peeoos 3.725 1,779

100.00 47,758

The average specific gravity of 958 igneous rocks, collected in
Washington’s Tables, is 2.737; and one cubic kilometer of rock a
should therefore weigh 2,737,000,000 metric tons. From the aver-
age of the Survey analyses given on p. 221 ante, the mean percentage 7
of sodium in igneous rocks is 2.51, and from Washington’s average : a
2.90. Hencethe sodium contained inthe ocean, 14,611 & 10! metric 4
tons, would be furnished by the complete decomposition of the fol-
lowing volumes of igneous rock: !

From the Survey average, 212,680,000 cubic kilometers.

From Washington’s average, 184,080,000 cubic kilometers.

Some sodium, however, remains in the sedimentary rocks,
namely, 0.90 per cent. as computed from the reduced average anal-
ysis. On comparing this figure with those for the total sodium of _
the igneous rocks, the volumes of the latter actually decomposed
become, approximately,

Survey, 318,950,000 cubic kilometers.

Washington, 260,160,000 cubic kilometers.

In order to determine the volume of the sedimentaries these
figures require two small corrections. First, a deduction must be
made for the soda, potash, lime and magnesia lost during erosion,
and now represented by the corresponding radicles in the ocean.
Secondly, for the difference in density between the original rocks
and the sedimentaries, indicated by the ratios 2.737:2.6. The first
correction is approximately 24,095 X 10’? metric tons, or 8,803,000
cubic kilometers. Making the corrections, we have, for the actual
volume of the sedimentaries, ‘-

Survey, 326,590,000 cubic kilometers, or 78,338,000 cubic miles. —

' Washington, 264,600,000 cubic kilometers, or 63,481,000 cubic
miles.

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 227

The higher of these figures is equivalent to a shell of rock com-
pletely enveloping the earth, 2,100 feet thick, or covering the land
area to the depth of 7,198 feet. This estimate is probably a maxi-
mum, but it gives fairly well the order of magnitude of the volume
to be determined. An exact estimate is of course unattainable, but
the total volume of the sedimentary rocks cannot much exceed 8o,-
000,000 of cubic miles, or roughly, one fourth the volume of the
ocean. If we apportion the volume actually found between the
different classes of the sedimentaries their volumes in cubic miles

become:

RIE EE hr Be or Se a eee aera KS RUP 62,662,400
ESS SNE EAE ee ES Pp SRF ge SEG 11,749,200
EE SEES RN OS POLS RE RIE eo 3,916,400

78,328,000

This leads to the surprising conclusion that the volume of the lime-
stones is less than that of the oceanic salts, or at least is a quantity
of the same order of magnitude. If the fundamental igneous rock
was more largely basaltic than the average analyses show, the pro-
portion of limestone would be increased, but probably not to any
very great extent. Some allowance should be made for sodium salts
enclosed within the rocks; but it is easy to show that such a correc-
tion must be small. If all the sandstones had an average porosity
of 20 per cent., and if its pore space, once saturated with sea water,
retained all of its sodium, the total amount retained would be
I10 X 10% metric tons. This amount, which is evidently excessive,
is only 0.75 per cent. of the sodium in the ocean. Its inclusion in the
foregoing computations would raise the volume of rock decomposed
to 78,100,000 cubic miles, an increase smaller than the unavoidable
uncertainties of the computation.

The foregoing estimate of the volume of the sediments obviously
includes those which cover a great part of the ocean floor, as well as
those which are now on land. Some of the latter, indeed, were once
oceanic deposits, and are now, by erosion, being partially returned
to the sea, either mechanically as salt and sand, or dissolved in the
water of rivers. An exact knowledge of the chemical work of river
water is therefore of great statistical importance from several points

228 CLARKE—SOME GEOCHEMICAL STATISTICS. [April 20,

of view. Ina former memoirt! I have given a careful estimate of
the composition of river waters, and of their entire dissolved load.
This estimate is reproduced in the following table: Column I. gives

the average composition of the inorganic matter carried in solution

by rivers. In column II. the annual contribution of each radicle to
the ocean is stated in metric tons.

I, Per Cent. II’ Metric Tons per Annum,

CO ee een ae a Cola we 35.15 961,350,000
BOG ives sis eeloaed eeees PeeuEy 12.14 332,030,000
GO ee Ae gad bila a cone een IAe 5.68 155,350,000
Oe iss sk dois ee eee .9O 24,614,000
Ee AS po ice ar ot MS Fee 20.39 557,670,000
cE Es A GH PSR ing SENURTs)§ 3.41 93,264,000
i [edie Rina tots at ees ge Ba ice sien Sa 6.40 175,040,000
BR i son oe Fein ati se ne lee vie 1.51 41,299,000
CANE BE) Os 56 vio ov oa eames te 2.75 75,213,000
pk | tae ene emma oc a Fe 11.67 319,170,000

100.00 , 2,735,000,000

The figures in the second column represent the quantity of inor- -
ganic matter annually removed from 40,000,000 square miles of the
earth’s surface, the remaining area being, so far as additions to the
ocean are concerned, practically negligible. Interior deserts, closed
basins, and the circumpolar lands are left out of account. From
40,000,000 square miles of land, 2,735,000,000 tons of dissolved
matter are carried each year to the sea. This quantity, however, is
not a true measure of chemical denudation. The NO, is of atmos-
pheric origin or else derived from organic sources, and 8 per cent.
of the CO, represents recent accessions from the atmosphere. Much
of the latter radicle is accounted for by the solution of limestones, ©
and was once, of course, atmospheric, but it is now a part of the
present erosion. Making the indicated deductions the total quantity
of matter transported in solution is reduced to 2,495,585,000 tons —
annually; or 25 X 10% in round numbers. This, with a probable —
specific gravity of 2.6 has a volume of 0.96154 cubic kilometer,
equivalent to a layer 0.000009281 meter deep, or 0.0003655 inch
‘over the 40,000,000 square miles of land. At this rate the mean

HA preliminary study of chemical denudation. Smithsonian Mise. Coll. =)
Vol. 56, No. 5, 1910.

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 229

surface of the continents would be lowered by solvent erosion alone,
4 to the extent of one foot in 32,833 years. In some areas the rate is
4 much more rapid, in others it is slower; but the average is as close
as can be computed with the data now in hand. Its uncertainty may
be as great as ten per cent., or perhaps even greater. The chief
uncertainty is due to our lack of precise knowledge concerning the
greater African and Asiatic rivers.

From the ratio between fluviatile and marine sodium the age of
the ocean can be calculated. The ocean contains 14,611 X 10
metric tons of sodium, and the rivers contribute 175,040,000 tons
annually. Hence, if the ocean were originally fresh, its entire con-
tent of sodium would be supplied by the rivers in 83,472,000 years.
This form of calculation was first applied by Joly,1? whose work is
well known; and has since been discussed by Sollas*® and also by
_ myself in the memoir already cited. The quotient thus obtained,
however, is subject to various corrections, which have been con-
sidered by the authors named above, and which operate in opposite
directions. Whether they compensate or not it is impossible to say.
The calculation, so far, assumes a uniform rate of supply since the
surface of the earth took on its present form, and that assumption
has been well criticized by Becker.** He shows that in all probability
the rate is diminishing, for the reason that the exposure of fresh
rocks, of unleached material, is constantly growing less and less, and
the true age of the earth since stability was established, lies between
55 and 70 millions of years. The higher of these values appears to
be the more probable. If, however, the ocean were primitively
saline, the quotient representing its age would be still smaller.

Sodium tends to accumulate in the ocean, while the other saline
radicles added to it are more or less precipitated as solid deposits on
its floor. Calcium and magnesium are removed as carbonates, silica
goes to build the skeletons of radiolarians, diatoms, and so forth;
potassium is taken to produce glauconite, etc. These deposits or
sediments cover vast areas to an unknown thickness, but their

|

* Trans. Roy. Soc. Dublin (2), Vol. 7, p. 23; Rep. British Assoc. Adv.
Sci., 1900, p. 360.
-* Quar. Journ. Geol. Soc., Vol. 65, p. xli.
* Smithsonian Misc. Coll., Vol. 56, No. 6.

230 CLARKE—SOME GEOCHEMICAL STATISTICS. _ [April 20,

annual increment can be approximately determined. If, from the
yearly contributions of rivers the amount of each radicle remaining
in solution is subtracted, the rate of chemical sedimentation becomes
known. In order to make this calculation, the age of the ocean must
be assumed; but variations in the latter estimate affect the results
but little. For example, the ocean contains 571.7. 10” tons of
dissolved calcium, which, divided by the age, gives the annual addi-
tion. If the age of the ocean is 100,000,000 years the annual incre-
ment of calcium in solution is 5,717,000 tons; if only 50,000,000
years it is 11,434,000 tons. Subtracting these quantities from the
total calcium of the river waters the remainders become 551,953,000
and 546,236,000 tons respectively, the difference being much less
than the uncertainties in the data employed. If, for the sake of
uniformity, we take the uncorrected age of the ocean, 83,472,000
years, the chemical or biotic sediments are represented by the fol-
lowing annual quantities.

SO ope pain eed Samer coe aes 288,021,000 metric tons.
Ce ees Seka Conse RL PE EM Ol aR ee te 550,821,000 metric tons.
MBO boa ee ee es 71,951,000 metric tons.
Ronis Mata arcs ab Ss cuatro en wes 34,971,000 metric tons.
CAT eae ices yas a biehe teeth 75,213,000 metric tons.
ithe Ochs eee son Gua Gene ae Oa 319,170,000 metric tons.

These are the quantities of the several substances annually removed
from solution in the ocean, which, in combination assume the fol-
lowing form.

CACO Hee a eae anaes eee 1,347,440,000 metric tons.

CaSOc2t0 oka ee 50,936,000 metric tons.

MeCO ses soc ees co es eens 251,830,000 metric tons.

RaSiQle i cease oe oe ee 69,045,000 metric tons.

Limonite oe ea eee ee 87,905,000 metric tons. '

Silica iw ea5u5 sige k eee sae 295,096,000, metric tons. -
Potala es pa eae ase ene 2,104,252,000 metric tons.

The last group of figures needs some explanation. From the anal:
yses of oceanic sediments published in the reports of the Challenger
Expedition I find that the ratio between sulphate calcium and car-
bonate calcium is 1:45.5. Calcium, therefore, is apportioned
tween the two salts in that ratio, but much of the SO, radicle is left

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 231

unaccounted for. Part of it goes to form pyrite, and part is decom-
posed by organic agencies and lost, but the proportion of loss is
unknown. It is, doubtless, large. The potassium which is taken up
by clays or else in glauconite is in either instance represented as
silicate, and hence a part of the silica is regarded as in combination.
The sesquioxides are calculated as limonite, although a part of them
is certainly alumina; but no refinement of a calculation here would
change the order of magnitude as given. The several orders of
magnitude are probably close to the truth, and we may say with
much confidence that the precipitates, including such substances as
coral, shell, diatomaceous ooze and what not are formed at a rate
of something like 21 X 10° metric tons a year, plus a small but unde-
fined allowance for that part of the sulphur which has been fixed as
pyrite.

At the figure given, chemical sediments are now forming in the
ocean sufficient to cover 88,000,000 square miles of the sea floor to
the depth of 0.0001337 inch annually. The whole area of the ocean
is 139,440,000 square miles, but the portion covered by the red clay,
where the precipitation is relatively insignificant, must be deducted.
If the rate had been uniform throughout geological time, 83,472,000
years these sediments would form a layer about 930 feet deep, but
such a calculation is unsound. Large areas of what were once
marine sediments are now land, and, moreover, neither the rate nor
the distribution of the deposits can have been uniform. The lime-
stones that are forming now are largely derived from the solution of
older deposits, Cambrian, Silurian, Devonian, Cretaceous, etc., and
their carbonates have been deposited in the ocean, not once only,
but possibly several times. In the earliest geologic eras, when
sediments began to form, the proportion of carbonates to other salts
thrown down must have been much smaller than today. An average
thickness of 930 feet over the assumed area is therefore a great
exaggeration; and needs to be reduced.

It is probably impossible to determine, with any approach to
precision, the actual quantity of marine sediments that have been
formed. We can, however, make a plausible estimate, which shall,
at least, give us some conception of their order of magnitude. It has

232 CLARKE—SOME GEOCHEMICAL STATISTICS, [April 20,

already been shown that the limestones, which are mostly of marine
origin, have a volume of 3,916,400 cubic miles. With a specific —
gravity of 2.7 their mass becomes 42,092 X 10" metric tons. From
the figures given on p. 230 ante, the calcareous and magnesian sedi- _
ments are now forming at a rate bearing a certain ratio to that of
the other deposits, the limonitic and siliceous residues. This ratio,
which is roundly 1,650: 452, if constant throughout geologic time,
would give for the latter class of sediments, proportional to the
limestones, a mass of 11,664 X 10'” tons; the sum of both classes of
precipitates being 53,756 X 10’ tons. The corresponding average —
thickness over the sedimentary oceanic area would then be 287 feet, —
or less than one third of the figure previously given. The actual —
thickness, however, must be much less; for a large part of the once
marine sediments are now elevated into land. According to the best
estimates,”* the land area of the globe is now covered by 23 per cent.
of archzean and eruptive rocks, and 77 per cent. of sedimentaries.
Adding this sedimentary area to that of the ocean, the total becomes
132,180,000 square miles, and the average thickness of the chemical —
sediments reduces to 191 feet. At the crude value assigned to —
geologic time this represents a rate of deposition of only 0.000027
inch annually. If the age of the earth is less than 83,472,000 years, _
the mean annual rate of deposition will be proportionately increased, _
but not to anything like the present magnitude. a
Whether the ratio assumed between the calcareous and siiomaa 4
sediments is justifiable or not, is a question admitting of argument.
It seems, however, probable, that in the earliest geologic ages, when
the land area was occupied principally by igneous rocks, the salinity
of the rivers was relatively low, but the proportion of silica to lime
in the waters was higher. This suspicion is justified by a study of
the river waters of today, especially those issuing from granitoid
areas. In such waters silica is often in excess of lime, while in
waters from sedimentary areas the reverse is commonly true. The
ratio here assumed represents a balancing between waters of both
classes, and is therefore as legitimate as any other which might be
chosen. Here it must be borne in mind that we are dealing with
probabilities only, nothing more. .

* Von Tillo as modified by Becker. See Becker’s memoir already cited. -

1912.] CLARKE—SOME GEOCHEMICAL STATISTICS. 333

_ So far, the mechanical sediments, such as silt and sand, have
not been considered. From the surface of the United States, accord-
‘ing to Dole and Stabler,** the rivers annually carry to the sea 270,-
000,000 tons of dissolved substances, and 513,000,000 tons in suspen-
sion. If this ratio, which is only approximate, should hold for the
whole world, the quantity deposited in the ocean during geologic
time would be 102,370 X 10% tons, and the total sedimentation,
_ chemical and mechanical, becomes 156,126 X I0** tons. This quan-
_ tity, distributed over the entire sedimentary area, continental and
oceanic, gives an average thickness of about 550 feet, or 0.000079
inch a year.

The total volume of the marine sediments thus computed, is
13,873,000 cubic miles. The volume remaining in the ocean is very
nearly two thirds of this figure, 9,239,000 cubic miles. The volume
of all the secondary rocks derived from the decomposition of
igneous rocks was previously found to be 78,338,000 cubic miles.
Hence the portion now on the land area of the globe amounts to
_ 69,099,000 cubic miles of rock, consisting in great part of materials
which were never transported very far from their original place of
_ formation.

To the foregoing estimates of the oceanic sediments at least one
large but undetermined correction needs to be applied. The ocean
receives great quantities of dust, representative of aerial erosion,
and also quantities of volcanic ejectamenta. For these nonfluviatile
additions no valid estimates can yet be made. The major portion
of them, however, must come from disintegrated sedimentary rocks,
sands, and soils, and so do not affect to any serious extent our esti-
-mates of rock decomposition. The oceanic share of the sediments
should be increased, but less than appears at a first glance. The
_ marine sediments now on land must include a part of the contribu-
_ tions made to the ocean by atmospheric transportation. The actual
_ distribution of the sediments is naturally very uneven. They are
_ probably thin near the margin of the red clay, and thick along the
continental shelves. Coral rock, for example, has been bored to a
depth of 1,100 feet without reaching its limit. The mechanical sedi-
_ ments are of course mainly deposited relatively near to shore.

*U. S. Geol. Surv. Water Supply Paper, No. 234, p. 83.

234 CLARKE—SOME GEOCHEMICAL STATISTICS. [April

7 In order to prevent misapprehension it may be well to reiterate

the statement that these estimates of the marine sediments are neces-
sarily crude, and represent orders of magnitude only. With better
evidence, better estimates may at some future time be made, but
accuracy in them is unattainable. The other figures givén, for the
composition of the igneous rocks and of the ocean are probably near —
the truth but are still subject to revision and improvement. |

a THERMAL RELATIONS OF SOLUTIONS.
By WILLIAM FRANCIS MAGIE.
(Read April 20, 1912.)

_ The thermal relations of solutions afford evidence of a peculiar
a and valuable kind about the nature of solutions. The electrical con-
_ ductivity of solutions has been explained by the hypothesis that the
> _ molecules of the solute are partly dissociated into ions in the solu-
j 4 tion. When this hypothesis is further tested on the assumption that
= _ the osmotic pressure is proportional to the number of free molecules
2 and ions in the solution, the experimental results of Dieterici, of
_ Kahlenberg, of Jones and others show disaccord with the predictions
of the hypothesis. I venture to believe that a study of the heat
_ Capacities and the heats of dilution of solutions will confirm the
view that the reason for this disaccord lies in the assumed relation of
® the osmotic pressure to the dissociation, so that while the dissocia-
a a tion hypothesis is confirmed, the relation of the osmotic pressure to
& 3 _ the dissociation is shown to be different from that which was orig-
- inally assumed.
Five years ago I presented to this Society a paper in which I
_ discussed the heat capacities of solutions. I will summarize here the
_ principal results described in that paper, in order to render the
g present discussion more complete.
. The heat capacity of a gram-molecular solution of an electrolyte
_ diminishes with increasing dilution. The change in the heat capacity
2 is directly proportional to the change in the dissociation, determined
_ from the electrical conductivity. In most cases, at ordinary concen-
E trations, the heat capacity of the water is diminished, and we are led
: to infer an interaction between the water and the molecules and ions
| e of the solute of such a sort as to diminish the freedom of the water.
__ A study of the constants of the formula by which the heat capacity
: tis expressed leads to the conclusion that the heat capacity of the

236 MAGIE—THERMAL RELATIONS OF SOLUTIONS, [April 20, :

water associated with the molecules of the solute is increased, while
that of the water associated with the ions is diminished. A similar q
relation holds for the volumes of solutions of electrolytes. Since the
heat capacity and the volume of a body are both quantities in their
nature additive of the similar properties of the parts of the body, it |
is to be expected that there will be a similarity in their behavior in —
any complex and changing body like a solution. The relations —
described confirm in a striking way the correctness of the dissociation y
hypothesis and the general accuracy of the dissociation factors
obtained from observations on electrical conductivity, while they also
indicate as a necessary conclusion from the facts, that there is inter- g
action between the solute and solvent. This general theory which 4
was formerly based on the facts which have been described, receives, ~
I believe, strong confirmation from the study of the heats of dilution. —

When a solution containing one gram-molecule of solute is —
diluted by the addition of a unit volume of water, heat is either —
evolved or absorbed. This amount of heat is the heat of dilution. 4
It is of course a function of the concentration. It also shows a a
remarkable dependence on the temperature. For example, if a solu- a
tion of barium chloride containing one half gram-molecule in 50
gram-molecules of water is diluted to double its volume at 7° C. 49
gram-calories of heat are absorbed. The same dilution at 24.5° C. is
accompanied by. an evolution of 18.5 gram-calories. At some inter-
mediate temperature, about 17° C., there is no heat either evolved or
absorbed. In all cases the absorption of heat is greatest at the lowest —
temperature of observation, and diminishes as the temperature is 3 .
raised, to become positive in some cases, as in the example just —
given, at temperatures common in an ordinary room. The greater —
the dilution, the lower the temperature at which the heat of dilution —
changes its sign. . 7

A very simple thermodynamic argument proves that the rate of
change of the heat of dilution with the temperature, for a fixed con-
centration, or what we may call the temperature coefficient of the
heat of dilution, is equal to the negative value of the rate at which
the heat capacity of the solution changes with an increase of volume
of the solution. Using / to represent the heat of dilution, taken
_ positive if heat is evolved, 0, the absolute temperature, H, the heat

12] MAGIE—THERMAL RELATIONS OF SOLUTIONS. 237

pacity of the solution and of an arbitrary amount of additional
solvent, from which the solvent is taken with which the solution is
diluted, and v, the volume of the solution, we find

We may set dH/dv—a, a quantity independent of the temperature,
because, first, Teudt has proven it to be so independent, within
reasonable ranges of temperature, by direct observations, and, sec-
ondly, because the formula

1, —l,=— a(6, — 6,)

obtained from the differential equation on that supposition agrees
with observations within the temperature ranges in which it has been
tested. Treating a therefore as independent of the temperature we

lags
l==—a$+e,

in which the heat of dilution is expressed as the sum of two terms,
one of which is proportional to the absolute temperature, the other
independent of temperature. Such a relation could not be expected
to hold for all temperatures, but within the narrow ranges open to
experiment it seems to be valid. Of the two terms the first one is
positive in all actual cases, for it is a general rule that the heat
capacity of an electrolyte diminishes as the dilution increases. It
_ corresponds to an evolution of heat. The second term is nearly of
the same magnitude as the first, and is negative, corresponding to
an absorption of heat. |
From the experimental relation already described, connecting the
heat capacity of the solution with the dissociation, it follows that the
quantity a is equal to a negative constant multiplied by the rate at
which the dissociation increases as the volume of solution is in-
creased. The evolution ef heat therefore which is expressed by the
_term—aé@ is proportional to the increase in the dissociation and to
the absolute temperature. This can be explained by the theory of
_ the constitution of a solution which has already been described. As
dissociation proceeds molecules of water which have been in union

PROC. AMER. PHIL. SOC., LI. 205 M, PRINTED JULY 24, IQI2.

238 MAGIE—THERMAL RELATIONS OF SOLUTIONS. [April 20,

with the molecules of the solute are released and their heat capacity
is diminished. At the same time molecules of water are associated
with the new ions, and their heat capacity is also diminished.
The act of dissociation thus diminishes the heat capacity, and —
therefore the number of degrees of freedom of the solution in —
proportion to the change of the dissociation factor, and the energy
associated with those degrees of freedom, which is proportional
at these temperatures to the absolute temperature, is liberated
in the solution as heat. The negative term e being nearly equal —
at each concentration to the corresponding positive term, also

varies to a first approximation with the dissociation. When calcu- —

lated for the dissociation of a complete gram-molecule it is of the
same order of magnitude as the heat of combination of the elements
constituting the solute. It presumably contains the heat of disso-
ciation along with the internal work done during the dilution.

The condition that dH/dv—a is independent of the temperature
enables us to find a formula for the relation between the osmotic
pressure and the temperature expressed in terms of the thermal con-
stants. A thermodynamic argument shows that the osmotic pres-
sure p satisfies the differential equation

ap a

de =~ 0
and if a is assumed independent of 6 we integrate this equation and
obtain
| p=—a0(logd—1)+ b6+e.
The quantities b and e are functions of the vena but are inde-
pendent of the temperature.

Now by another thermodynamic argument we can deduce the
heat of dilution from this value of the osmotic pressure. We obtain

l—=—aé+e

as before, in which the function e is that which appears in the ex-
pression for the osmotic pressure. This formula can be tested by
comparison with the results of experiment. From observations of
the depression of the freezing point we can calculate the osmotic
pressure for a fixed concentration at 0° C. and using this in con-

1912.) MAGIE—THERMAL RELATIONS OF SOLUTIONS. 239

nection with the heat of dilution for the same concentration we can
determine the constants of.the formula. With these we can then
calculate the osmotic pressure at 100° C. and compare it with the
value found for this quantity from observations of the elevation
of the boiling point. I was able to do this with the observations of
Kahlenberg on the freezing and boiling points of sodium chloride
solutions combined with those of Thomsen on the heat capacities
and of myself on the heats of dilution. The agreement of the ob-
served boiling points with those predicted from the formula was
excellent. Incidentally this agreement confirms the validity of the
__ assumption from which the formula was derived, that a is indepen-
' dent of the temperature.
a Another test of a less searching character can be made by site
the osmotic pressures given by the formula at different temperatures
to calculate the ratio of the vapor pressure of the solution to that of
the pure solvent. According to von Babo’s law this ratio should be
independent of the temperature. Calculations for sodium chloride
solutions show that while it is not strictly the same at all tempera-
tures between 0° and 100° C. yet the differences between ratios at
different temperatures are excessively small, and lie within the
errors of the observations by which von Babo’s law has been tested.
The terms a and e of the formula for the heat of dilution are
manifestly not quantities which are fundamentally kinetic in their
nature. They express rates of change of energy with change of
volume. Their appearance in the formula for the osmotic pressure
indicates that the osmotic pressure is not to be explained as a kinetic
phenomenon, as the pressure of a gas is, but as the result of forces
acting between the solute—its molecules and ions—and the solvent.
These thermal relations, therefore, afford strong evidence, and
evidence with as little admixture of hypothesis as is possible in the
nature of the case, first of the validity of the dissociation hypothesis
by which the laws of electrolytic conduction are explained, and sec-
ondly, of the dependence of the osmotic pressure on the forces
_ which are exerted between the parts of the solution and the pure
solvent.
Parmer Puysicat LaBoratory,

PRINCETON UNIVERSITY.

NEW MAGNETIC CHARTS OF THE INDIAN OCEAN.

By L. A. BAUER.
(Read April 20, 1912.)

The charts exhibited embody the results of magnetic observa-
tions made during the summer and fall of 1911 on board the non-
magnetic yacht Carnegie operating under my direction as Director
of the Department of Terrestrial Magnetism of the Carnegie In-
stitution of Washington.

The necessity of the new charts arose from the exceptionally

large errors found in the most recent magnetic charts at present in © 4

use by mariners. Thus, for example, the errors in the compass
directions for two of the most recent charts approximate respect-
ively four degrees and six degrees, though one of them was issued
as recently as 1910. With the exception of a few values found by
the vessel, the Galilee, used in the Pacific Ocean work, these are
the largest errors thus far revealed. In the portions of the Atlantic
Ocean thus far covered by the Carnegie the compass chart errors
have generally been below two degrees, though running at times
up to two and a half degrees.

The chart errors in the compass directions are usually found to
be systematic, that is, in the same direction for large stretches, and
are to be ascribed largely to erroneous secular changes allowed for —
in attempting to bring previously observed values up to date.

Thus, for example, by comparing the Carnegie values of I911
with those obtained on board the German Antarctic vessel, the
Gauss, in 1903, it is found that the north end of the compass moved
to the eastward (hence diminished west declination) at the average
rate of about 11’ per year off the southeast end of Africa, whereas
in the vicinity of the islands of St. Paul and New Amsterdam in
the Indian Ocean (lat. 35° 16’ S., long. 74° 46’ E.) it moved to the
westward (increased west declination) at the average rate of about —

240

1912.] MAGNETIC CHARTS OF THE INDIAN OCEAN. 241
13’ per year. The charts give secular changes of only about one
fourth of these amounts, so that the error of reduction in but ten
years amounts to almost 2°. It is doubtless due to these large
secular changes disclosed in the Indian Ocean, and especially their
rapid variation with geographic position, that the large errors men-
tioned have crept into the charts.

The errors in the other magnetic elements, while of less impor-
tance to the mariner, are of consequence to theoretical investigations
regarding the earth’s magnetism. In the magnetic dip, the errors
on the present cruise have amounted at times to 4°, and in the hori-
zontal intensity to about one-twentieth part. While some of the
results derived from previous analyses of the earth’s magnetic field
have pointed to the possibility of large and more or less systematic
chart errors, it was not suspected that they would reach the magni-
tude disclosed by the work of the Galilee and of the Carnegie.

The Carnegie is at present making a circumnavigation cruise and
is expected back in New York towards the end of 1913, having left
the same port in June, 1910. Up to February 1, 1912, this vessel
had already covered about fifty thousand miles. She left Manila
on March 23, in command of Mr. W. J. Peters, bound for the Fiji
Islands.

Owing to the non-magnetic structure of the Carnegie and the
absence in consequence of any deviation corrections, it is possible
to obtain and communicate results expeditiously. The data are
promptly transmitted to the chief hydrographic establishments issu-
ing magnetic charts in order to enable them to make the necessary.

corrections from time to time.

THE DIARY OF A VOYAGE TO THE UNITED STATES,
BY MOREAU DE SAINT-MERY.

By STEWART L. MIMS.
(Read April 18, 1912.)

In his Souvenirs intimes sur Talleyrand, published at Paris in
1870, M. Amédée Pichot remarked in his preface:

“Tf we were to write a complete biography of Talleyrand, we would be
able to give some details, very little known, concerning his exile in America,
where M. de Beaumetz and he found themselves with other notable émigrés
among whom was Moreau de Saint-Méry. ... This information has been
obtained from an unpublished diary, kept by Moreau de Saint-Méry, which
M. Margry has examined and from which he has communicated to us certain
extracts concerning the sojourn of Talleyrand at New York, Boston and
Philadelphia.”

Pichot made two quotations from this “ unpublished diary,” one
at pp. 209-212, describing the intimate relations existing between
Talleyrand and Moreau, the other at pp. 212-213 giving the text of
a letter written by Talleyrand to the French Minister of Foreign
Affairs to acknowledge a letter inclosing the decree of September 3,
1795, which reopened the doors of France to the famous exile.
Pichot contented himself with these two citations, either because
his friend Margry’ did not choose to give him more material, or
because the limitations of his own study did not permit him to quote
more extensively from the notes which were actually communicated
to him.

Although many studies have appeared on the life of Talleyrand —
since 1870 and some have made use of Pichot’s citations, apparently —
none, not even such recent biographers as MacCabe, Lacombe and

-1Pierre Margry, author of “ Mémoires et Documents pour servir a Phis- !
toire des origines francgaises des pays d’outre-mer” and of some studies ©

relating to the history of French colonization in America, was at this time
archivist at the Ministry of the Marine.

242

1912.] VOYAGE TO THE UNITED STATES, 243

_ Loliée,? have attempted to find the source from which the citations
were taken to see whether it contained other interesting material
upon the sojourn of the great diplomat in America.
It was my good fortune, a little over a year ago, to find in the
manuscript catalogue of the Archives Coloniales at Paris, the title,
“Le Voyage aux Etats-Unis de l’Amérique par Moreau de Saint-
Méry pendant les années de 1793 a 1708.”
Although it called me far afield from the work in which I was
engaged, I could not resist the temptation to cast a furtive glance
at the manuscript to see what its interesting title meant. That
furtive glance grew into the absorbing task of reading from page
to page until I had finished the story which the volume contained—
a story all but forgotten and lost for three generations among the
dusty archives of the Colonial Office.* It is to this story that I wish
to direct your attention for a few moments.
With the author of the diary many of you are already acquainted
from the paper which one of your members presented before this
society at its last annual meeting.* Permit me to recall, however,
the salient facts in his life.
_ Born at Fort Royal, Martinique, on January 13, 1750, Médéric-
_ Louis-Elie Moreau de Saint-Méry® was of a family which had emi-
grated from Poitou to settle at Martinique in the seventeenth cen-
tury and had won a place of prominence by furnishing in succeeding
BS: ? MacCabe, “ Talleyrand, a Biographical Study,” London, 1906; Bernard
_ de Lacombe, “La vie intime de Talleyrand,” Paris, 1910; Frédéric Loliée,
“Talleyrand et la société francaise,” Paris, 19Io.
s * Victor Tantet, late archivist of the Archives Coloniales, made use of
the diary to write a very interesting article which appeared in La Revue
(1905), Vol. 52, pp. 378-396, and entitled “ Les Réfugiés politiques francais en
_ Amérique sous la Convention—Moreau de Saint-Méry libraire a Phila-
_ delphie.” I knew nothing of the existence of this article until after I had
found and studied the diary.
*Joseph G. Rosengarten, “Moreau de Saint-Méry and his French
_ Friends in the American Philosophical Society,” Proceedings of this Society,
Vol. 50, pp. 168-182.
: * This short sketch of Moreau is based on Silvestre, “ Notice Biograph-
_ ique sur M. Moreau de Saint-Méry,” Paris, 1819 (a short pamphlet of 24 pp.),
and Fournier-Pescay’s article in Biographie Universelle on Moreau de Saint-
Méry.

244 MIMS—DIARY OF A VOYAGE [April 18,

generations many judges to the principal courts of the island. After —
spending his boyhood days at Martinique, the young Moreau, at
the age of nineteen, took ship for France to acquire that training
in the principles of the law which would fit him to follow in the
footsteps of his fathers. |
After his arrival at Paris, he began to study with such rare
enthusiasm and success that at the end of fourteen months he sus- — q
stained his thesis in Latin and received the degree of bachelor of
law. At the end of three years he won the honor of attaining the
rank of avocat au parlement and was prepared to turn his face
towards his native island in order to follow his chosen profession.
At his return to Martinique he found himself an orphan, the
fortune of the family in ruins and nothing to rely upon, in making
a place for himself in the world, except the training which he had
just received. The French colony of St. Domingo, the richest of
all the West India islands, seemed to offer a more promising future
and accordingly he left Martinique and settled at Cap Francais (to-
day Cape Haiti) in 1772 to begin the practice of law. After eight
years of successful practice, he was elected a member of the conseil —
supérieur of St. Domingo. It was in the discharge of the duties of
this office that Moreau began the difficult task of codifying the laws
of the island in order that his decision as a judge might be more _
intelligent and scientific. q
The previous attempts which had been made to codify these laws a
in 1716, 1738 and 1757 had not been successful. The King had ~
commissioned de la Riviere in 1771 to undertake the task, but his 3
work had been slow and discouraging. Hearing that Moreau was a
engaged in the same work, de la Riviére gracefully gave way to the |
younger and more competent man. In preparation for his work
Moreau visited all parts of St. Domingo, Martinique, Guadeloupe
and St. Lucia, thus laying the basis for that larger and later work
of preparing his monumental collection of documents, relating to
the history of the French West Indies and to be found today in the
Archives Coloniales at Paris—a collection which has made his name
immortal among all students of West India history. He received
a commission from Louis XVI. to return to Paris in order to com-

1912.] TO THE UNITED STATES. 245

plete and publish the results of his work. From 1784 to 1790
appeared successively the six volumes of his well-known collection
of laws, entitled “ Loix et Constitutions des Colonies francaises de
Amérique sous le Vent.”

At his return to Paris, Moreau quickly won admission into the
intellectual and political life of the capital. He became one of the
founders of the Musée de Paris and contributed much to its effi-
ciency. At the outbreak of the revolution in 1789, he became one
of its ardent champions. He was chosen as one of the electors of
Paris, who at one time virtually ruled over all France. He boasted
afterwards during his exile that in serving as their president he was
“king of Paris for three days.” He was deputy of Martinique in
the Constituante, and played an important part, especially in matters
which related to the administration of the colonies.

But with Robespierre’s accession to power and the inauguration
of the Reign of Terror in 1793, Moreau was forced to flee from
Paris and seek refuge in Normandy. It was only a temporary
refuge that he found, however, for Robespierre placed his name
upon the fatal list of those for whose blood he thirsted. Gathering
up all that he held most precious, among them the manuscripts of
some unpublished works, Moreau escaped with his family to Havre,
where by good fortune a ship was ready to sail for the new world.

It was therefore in quality of an émigré that Moreau de Saint-
Méry set out upon a voyage to the United States. He sailed from
Havre on November 9, 1793, aboard the Sophie (Lowther, Captain)
bound for New York. After a long struggle against head winds and
frequent storms, lasting for one hundred and nineteen days the
vessel was forced to put in at Norfolk, where it cast anchor on March
8, 1794.° After a stay of two months at Norfolk, Moreau proceeded
by water to Baltimore, passing thence to New York by way of Wil-
mington, Philadelphia and Princeton. He remained at New York
from May 25 to August 21, being forced to earn his living by hard
work as shipping clerk for the house of Daniel Merian, which was
only a “préte-nom” to conceal the shipment of provisions to the
French government. During his residence in New York, Moreau

* The diary contains a most interesting account of this voyage.

246 MIMS—DIARY OF A VOYAGE [April 18,

made the acquaintance of a German nobleman, de la Roche by name,
with whom he formed a partnership for the establishment at
Philadelphia of a stationery and book-store and printing shop. He
accordingly removed to Philadelphia, where he remained from
October 14, 1794, to August 23, 1798, when he set sail for France.

It is the story of these five years in America that Moreau de
Saint-Méry records in his diary. Step by step one may follow him
to hear his appreciation of the hospitality of old Virginia or his
enthusiasm over the beauty and charm of the Virginia belle, whose
musical voice seems to have fired his heart; or to hear him marvel
at the number of religious sects at Baltimore, all living in the per-
fect harmony of an attractive society, or one may turn to the descrip-
tions of the life of New York and Philadelphia. In these descrip-
tions and throughout the diary are to be found many interesting
data on the prices, the cost of living, the expenses of travel, the
manners and customs of the people. In other passages one may
follow the author into the presence of such public men as Wash-
ington, John Adams or Alexander Hamilton. Thus under date of
August 26, 1794, is recorded a visit to the last named:

“T went to see the Minister, Hamilton, having a letter of introduction
from Talleyrand. On arriving at the building in which his office was located,
I found a porter, clad in a long gray vest, who informed me that the minister
was not in. On leaving the house and before I had gone very far, I met a
gentleman whom I believed, tho’ I know not why, to be Hamilton and I
turned and followed him. We entered the corridor almost together. On
seeing Mr. Hamilton, for it was he, the porter took a key down from a peg
and opened the door of the Minister’s office and I was asked to enter. I
was much pleased that I had been warned not to have the air of being in-
quisitive or of plying the minister with questions. But he showed great

confidence in me by talking frankly of both France and America... . I did
not fail to be struck by his bureau. Its furniture and furnishings together

were not worth more than fifty francs [ten dollars]. A large pine table, © a

covered with a green cloth, served as his desk. His books and papers were
upon simple wooden shelves. On the end of one shelf was a slate-colored
vase and a plate with some drinking glasses. The porter who waited on him
wore, besides the vest of which I have spoken, trousers of the same cloth —
which did not reach low enough to hide his bare leg. In a word I saw —
around me what must have been in accord with the customs of the Spartans.”

Moreau’s later impressions led him to speak of Hamilton as
“devoured with the ambition of making people believe that he was

1912.] TO THE UNITED STATES. 247
___ the soul of everything” [in the government] and that “the security
_ of the United States depended entirely upon his ability.” Again he
__wrote: ,

“ Hamilton, who knew only America and was unacquainted with Europe
__ except through books, was a lover of a strong centralized government which
_ knew how to command obedience without compromise. Civil war did not

frighten him, because he was a man of courage and had natural military
ability and believed and in fact was accustomed to say that the United States
would never have a real and stable government until internal dissensions
had proved its necessity and caused it to be established. ... He was of

_ small stature, had an admirable composure, very small eyes and had some-

_. thing of the mysterious in his countenance. He spoke French, but very im-

__ perfectly. He was a man of much intelligence and kept a close watch upon

' himself. He was very brave, disregarded personal interests in his public
>" service, was an admirer of the laws and of the government and financial
system of England. He was very dictatorial and was very jealous of the
prerogatives of the executive power.”

Besides these interesting features, the diary has another of per-
haps greater value, namely, some remarkable passages which de-
_ scribe the group of French émigrés at Philadelphia and the intimate
relations existing between some of the chief among them.

It has already been noted that Moreau de Saint-Méry estab-
_ lished a book-store and printing press at Philadelphia. His house
__ was located at the corner of Front and Walnut streets. From the
_ catalogue which he published at the beginning of his career as
bookseller,’ it can be seen that his store offered for sale many books
_ printed in English, Dutch, Italian, Spanish and French—a fact
_ which must have attracted not only cultured Philadelphians, but
also the French émigrés in the city. His store became in fact the
rendezvous of many notable exiles from France. Talleyrand, de
Noailles, Talon, de Beaumetz, Demeunier, La Colombe, La Roche-
foucauld, duc de Liancourt, and the duc d’Orléans (the future Louis
Philippe) were all visitors at the shop of Moreau. Some of them,
including Talleyrand, Blacon and de Beaumetz, frequently remained
for supper and like boys scuffled and played pranks upon one another
about the store.

In regard to Talleyrand the most notable of the many émigrés

* A copy of this catalogue is still to be found in the library of the Amer-
ican Philosophical Society.

248 MIMS—DIARY OF A VOYAGE [April 18,

who found a temporary refuge in “the ark of Noah,” as Phila-
delphia was happily called by one of them, the diary contains some
important data. Moreau’s first meeting with Talleyrand in America
is recorded under the date of May 22:

“ After the end of the session of Congress, I was on my way with my
two companions [Goynard and his son] to see the executive mansion which
was in the course of construction, . . . when I noticed that in a stage which
approached rapidly there were two men waving their hands at us... . One
of them jumped to the ground and ran to throw himself in my arms. It
was Beaumetz. The other, less agile, climbed down from the stage. It
proved to be Talleyrand. Both of them had just arrived from England.
What joy! What happiness! How many repeated embraces! ... They in-
vited me to dine with them. I went at once to break the good news to my
home and then rejoined them. What a glorious dinner it was! How many
things we had to tell one another after two years of separation! After
dinner we all went to see Blacon, the comte de Noailles and Talon. New
surprises and new rejoicings! During our reunion a hail and thunder storm
raged outside as though heaven wished to recall to our minds the misfortunes
from which we had escaped in our own country.”

From this date forward it is easy to trace in the diary the inti-
mate relations which were established between Moreau and Talley-
rand. Here is an entry to tell us that they have dined together,
there, another to describe an evening together, or yet another to
describe a little group with Talleyrand in their midst to listen to
Moreau read from the yet unpublished manuscript of “La Danse”
or of his description of St. Domingo. When the two were sepa-
rated, the diary indicates a constant exchange of notes and of
letters. In regard to this, it may be interesting to note in passing,
the diary contains no less than seventeen notes and letters from the
hand of Talleyrand to his “ cher maitre,’ as he came to call Moreau
in affectionate terms. When Talleyrand was at Philadelphia their
relations became most intimate. Moreau’s own words must tell the
story:

“No words could express adequately the nature of my liaison with
Talleyrand. Every day, after his return to Philadelphia in the month of

October, 1795 to June 11, 1796 [the date of Talleyrand’s departure for a
Europe], he came to my office at eight in the evening. There alone (except

when Beaumetz, Talon, Blacon, de Noailles, Volney or some others came
also) we opened our hearts to one another and shared one another’s deepest — 3

feélings. We told our most intimate secrets. Thus we passed our time a

1912.] ~ <0 THE UNITED STATES. 249

together in delightful communion until supper was announced. Talleyrand
ordinarily did not sup, while I ate some rice cooked with milk on the stove
- - in my store. ...I had some excellent Madeira which Talleyrand liked very
much. . . . How many times, after the late hour had dispersed the rest of
the company, did Talleyrand go with them across the little court-yard and
a then steal back to prolong the evening with me. He yielded finally when my
_ __-wife came and said to him: ‘Tomorrow you will stay lazily in your bed
a until noon, whereas your friend must be up and open his shop at seven.’ . . .
a Thus we passed every evening together without missing a single one, in
4g talking of the past, of the present and of the future of our country. In
-_ connection with the future we talked of Louisiana and of plans to colonize
____ it for ourselves. Sometimes we talked seriously of the matter and Talley-
a rand concluded that we must become the governors.

“In this plan, as well as in others which we made to remain together,
Talleyrand and I closed our talks together, our hands clasped in a pledge
that for the rest of our lives we would share with one another our failures
and our successes even in money matters....In a word never did the
common expression, ‘united as two fingers of the same hand,’ describe so
accurately the liaison between two persons as that between Talleyrand and

myself.”

At his departure for Europe on June 11, 1796, Talleyrand took
with him some two hundred copies of Moreau’s “La description de
la partie espagnole de St. Domingue” to find sale for them at Ham-
_ burg and in France. He offered to take Moreau’s son with him
back to Paris and to provide for his education. After his return to
Europe Talleyrand did not forget the friend of his days of exile, for
’ the diary contains letters written in affectionate terms from Ham-
__ burg and Paris. It was in fact through Talleyrand that Moreau
Was permitted to return to France and by Talleyrand’s pecuniary |
aid that he was able to take his family from Bordeaux to the capital.
It was due to Talleyrand’s influence that Moreau obtained shortly
afterwards the position of historiographer at the Ministry of the
Marine.

The diary closes at a date shortly after Moreau’s return to Paris
and we are left to conjecture as to what were the relations of the
two friends in later life. It seems, however, perfectly plausible to
suppose that the appointment of Moreau as ambassodar at Parma
in 1801 (later to become and remain its regent until his disgrace by
Napoleon in 1806) was the result of Talleyrand’s influence exerted
in his behalf.

250 MIMS—DIARY OF A VOYAGE [April 18,

It is pleasant to dwell upon these pages of the diary, because
they throw a pleasing light upon Talleyrand’s character. He is
generally thought of as the prince of diplomats, employing human
speech to conceal his own thoughts, but here we have him unveiling
his very soul to a kind and sympathetic friend.

The diary shows, however, that Moreau de Saint-Méry’s shop
became something more than the rendezvous: for such notable émi-
grés. From his printing press went forth many notable works pub-
lished in French, such as de Liancourt’s study on the prisons of
Philadelphia, and three of his own notable works, “La Danse,”
“La déscription de la partie espagnole de St. Domingue” and “La
déscription de la parte frangaise de St. Domingue.’’* At his press
also was published from October 15, 1795, to March 14, 1796, a
daily newspaper in French entitled Courrier de la France et des
Colonies,® edited by Gaterau, an émigré from St. Domingo. In its
pages were printed the latest news of the great revolution in France
and of the most recent developments in the French West Indies.
How eagerly the numerous émigrés then at Philadelphia and in
other cities must have read it! It must have come as a messenger
to them in their exile. It served also as a social organ for them,
for it contained notices of balls and concerts and meetings of
French societies. Moreau’s press, therefore, in publishing such a
paper must have occupied an important place in the lives of the
wider circle of French exiles in Philadelphia. The diary contains
_ passages which throw light upon the life of this wider circle and
reveal something of its numbers and of its importance.

There is to be found in the diary, therefore, a wide range of
material, varying from passing comments upon public men and upon
the customs of the people to serious studies upon the history and
life of some of the chief American cities, and including some new
and most interesting material upon the life of many exiles who
fled from persecutions in France and revolts in the West Indies to
find refuge in our fair land of liberty and freedom. .

* These three works appeared at Philadelphia during the years 1795-1708. a

° A complete file of this unique publication is to be found in the library
of the Atheneum at Boston. It appeared in a single sheet, 4 pages, each
page measuring 243 c.c. by 20 c.c.

TO THE UNITED STATES. 251

1912.]

In closing, I should like to express my thanks for this oppor-
tunity of calling the attention of the American Philosophical So-
ciety to this unpublished diary of one of its former members,’® who
must have spent, as indeed its proceedings show, many delightful
evenings in its halls and who with pride placed after his name upon
the title pages of his well-known works “ Member of the American
Philosophical Society.”

When he sailed upon the voyage which was to take him back to
the country and to the people he loved, Moreau de Saint-Méry

__ must have left in this society many friends who thoroughly appreci-

ated his great talents and who had been attracted by his interesting
personality. It is fortunate that such a man left for us a record of
his sojourn in America and that it is possible to rescue it from the
dust of archives.’
_. ™Moreau was elected to the society on January 16, 1780, before he left
_ France. The records show that he attended its meetings regularly after his
arrival in Philadelphia in the fall of 1704.

™ The diary will be published in the near future at the Yale University
Press.

THE CLASSIFICATION OF CARBON COMPOUNDS.
By MARSTON TAYLOR BOGERT.
(Read April 20, 1912.)

The system of classification adopted for a science at any given
period registers quite accurately the state of the science at that
period, and the changes in the classification therefore record its.
progress. It is, hence, practically impossible to give any intelligible
description of the various methods of classification which have been
employed for carbon compounds without at the same time sketching
briefly the changing conceptions and theories of which they were to
so large an extent the natural reflection, for without such a setting
the picture would have no proper background or perspective.

The classifications which are considered are particularly those
which have been used for textbook instruction in organic chemistry,
and no place is given to those which have been devised solely for
the patent offices, for reference, or for other special purposes.

Man being naturally of an inquiring mind, he has probably
speculated upon the composition of this world ‘of ours ever since he
first appeared upon it, for in the oldest records we find theories
concerning the elements of which it is composed.

The doctrine of the four so-called “ elements ”’—earth, air, fire |
and water—was first enunciated in Greece by Empedocles, about
440 B. C., but generally bears the name of Aristotle. Neither
Empedocles nor Aristotle regarded these elements as different forms
of matter, but rather as different properties or manifestations of —
one original matter. Aristotle also added a fifth element, ove/a, —
to which he ascribed an ethereal or immaterial character and which ~
he assumed permeated the universe. As the oldest writings of —
India contain a similar theory of four elementary principles and an a
ethereal substance, it is possible that both Aristotle and Empedocles” ;

252

1912.] BOGERT—CARBON COMPOUNDS. 253

were familiar with this fact and were only introducing into Greece
this ancient Indian theory.

The oldest nations were familiar with the metals and refer to
them frequently in their writings, but it should’not be forgotten that
some of the earliest chemical facts on record have to do with carbon
compounds. The only acid known to the ancients was acetic (as
vinegar), so that the name of this substance and the idea of acidity
were expressed by closely related words; in the Greek, d€os for
vinegar, and of€vs for acid; in the Latin, acetus and acidus. The
first reagent of any kind mentioned was the extract of gall nuts,
which Pliny says the ancients used to detect the presence of green
vitriol in verdigris. The first salts artificially prepared were those
obtained by the action of vinegar upon alkalies. The first crude
attempts at distillation were with turpentine. The ancients were
familiar also with fats, resins, organic coloring matters (like indigo
and Tyrian purple), sugar, gums, the preparation of wine from
grape juice, of beer from malted grain, of mead from honey, of soap
from fats, and many other facts in these and related fields. Organic
chemistry, therefore, does not give place in point of age to inorganic.
Largely due to the influence of Alchemy, however, the object of
which was the transmutation of baser metals into silver and gold,
the mineral side of the subject was the first to be extensively
developed.

According to the pseudo-Geber, all metals consisted of sulfur
and mercury, in varying amounts and in different degrees of purity.
The old Aristotelian “elements” he appears to have regarded as
subsidiary constituents, or perhaps as the ultimate components of
the sulfur and mercury. To the pseudo-Geber’s two elements, Basil
Valentine added a third, “salt,” not meaning any particular com-
pound but the properties characteristic of common sodium chloride,
and he assumed these three to be the elementary constituents not
only of metallic substances but of organic as well; sulfur endowing
the substance with combustibility, or the property of changing in the
fire, and also explaining color changes, mercury giving metallic
properties and volatility, and salt representing the principle of solidi-
fication and of resistance to fire.

PROC. AMER, PHIL, SOC., LI. 205 N, PRINTED JULY 24, I9QI2.

254 BOGERT—CARBON COMPOUNDS. [April 20,

In spite of the great amount of experimental work carried out
by the alchemists, and the large number of new facts discovered by
them, their writings were so obscured by mysticism, exaggeration
and deceit, that little‘real progress was made toward a more accurate
understanding of the nature of chemical compounds which might be
utilized in constructing a more satisfactory method of classification.
No attempts were made to determine the actual constituents of
compounds, for it was assumed that in the formation of a compound
the original substances were annihilated and an entirely new sub-
stance created. Hence the only classification in vogue was a rough
grouping of substances according to their physical properties, or
apparent outward resemblance, and many of our common names are
reminders of this bygone empirical method. Thus, olive oil and
other vegetable and animal oils were grouped with oil of vitriol and
oleum tartari (deliquesced potassium carbonate); spirit of wine
(alcohol) with fuming spirit of Libavius (stannic chloride), spirit
of hartshorn (ammonium hydroxide solution) and spirit of nitre
(nitric acid) ; butter with butter of antimony (antimony trichloride)
and other semi-solid metallic chlorides. Colorless solids, soluble in
water and of characteristic well marked taste, were all classed as
“salts,” and this group thus included sugar.

The goal toward which the alchemists strove was the philoso-
pher’s stone, the grand elixir or the magisterium, as it was variously
called, whose virtues were such that it could not only transmute
baser metals into silver and gold, but could also prolong life indefi-
nitely. As the claims concerning the transmutation of metals were
increasingly discredited and the trickery and deception of the alchem-
ists exposed, more investigators directed their attention toward the
second great function of the philosopher’s stone, the prolongation of
life, and many compounds were discovered of considerable thera-
peutic value. Great interest was aroused by these investigations,
and Paracelsus finally announced that “the object of chemistry is
not to make gold but to prepare medicines.” Thus, in the first half
of the sixteenth century, chemistry began to develop in a new direc-
tion, at first not far removed from alchemy, but gradually diverging ©
from it more and more widely, and approaching closer and closer

1912.] BOGERT—CARBON COMPOUNDS. 255
to medicine, until the coalescence of the two sciences appeared
__ practically complete. And thus arose the period of iatro chemistry,
a when chemistry, which had long been looked upon as a valuable
: helpmeet to medicine, came to be regarded as the basis of the entire
E _ medical art.

4 Although in this period the chief development was again along
the mineral side, probably because of the relatively greater simplicity
and stability of these preparations, still no little organic investi-
gation was conducted and a number of new compounds were added
to the science. Little progress was made in gaining a truer insight
into the character of chemical compounds, and hence no important
changes in classification appear. Paracelsus himself, the founder of
the iatro-chemical school, adopted Basil Valentine’s three elements
_ (sulfur, mercury and salt) as the basis of his doctrines.

7 By the middle of the seventeenth century, chemistry awakened
_ to the fact that it had a destiny of its own to realize, struggled to
its feet and, refusing longer to be supported by other sciences,
started forward, to be sure rather unsteadily and uncertainly at first,
but with the firm determination to do something for itself.

The history of chemistry proper begins with Robert Boyle about

1660, who taught that its main object was the determination of the
composition of matter. Through his labors, and those of Rouelle
and others, the terms “element” and “chemical compound” were
more fully explained and appreciated; nevertheless many of their
_ colleagues still adhered to the old alchemical or even the Aristotelian
elements. Kopp, in his “Geschichte der Chemie,” gives an excel-
lent picture of the epoch-marking effect of Boyle’s ideas:

a
7
‘4
i
q
;
t

“What a contrast is exhibited between the ancient idea of the cause of
difference in various forms of matter and that which obtained at the time of
Boyle! If we consider these two opposite conceptions historically, and the
transition from the one to the other, they appear like two totally dissimilar
pictures; but, like dissolving views, changing the one into the other by slow
degrees. In the first place we have the Aristotelian idea, according to which,
___‘Matter itself devoid of properties, becomes endowed with characteristic

_ qualities by the addition of properties, and forms, when invested with these
_ properties, the various substances known in nature; then this idea passes
- gradually into that of the alchemists, but becomes confused in the transition,
inasmuch as the differences of physical condition and properties are no

256 BOGERT—CARBON COMPOUNDS. [April 20.

longer regarded as the only causes of varieties in substances; the difference in
chemical properties receives more attention, the existence of elements, the —
producers of such properties is assumed; and thus the path is prepared which
leads to the idea of chemical composition. Then we see the Aristotelian
theory gradually becoming indistinct, whilst the idea of the importance of the
chemical deportment and composition of bodies assumes prominence, and at
last we see clearly that the differences between the substances which nature
presents to us in such overpowering numbers, or which we have ourselves
formed artificially, depend upon differences in their chemical composition.
The idea of chemical composition, which makes its first appearance in-
distinctly in the history of the chemistry of the Middle Ages, now forms the
foundation of the science.”

The most important and interesting problem at this time, and the __
one upon which most attention was focused, was the chemistry of
combustion. Attempts to explain the phenomena of combustion
finally led to the phlogiston theory of Stahl, which dominated the
science from the end of the seventeenth through the eighteenth
century.

In 1675, Nicolas Léméry published his “Cours de Chimie,”
which soon became one of the most popular textbooks of the time
and passed through thirteen editions during its author’s lifetime.
In it he divided all natural substances into mineral, vegetable, and
animal; including in the second group plants, resins, gums, fungi,
fruits, acids, juices, flowers, mosses, manna and honey; and under
the third heading describing the various parts of animal bodies.
This classification was quite generally adopted, and thus arose a
distinct separation of mineral chemistry from the chemistry of
substances occurring in plants and animals. The phlogistonists had
previously opposed any such subdivision, contending that the differ-_ 4
ences observed depended upon a variation in the composition of
the bodies classed under the three heads. So Becher, in 1669,
argued that the same elements occur in the three natural kingdoms,
but that they are combined in a simpler manner in mineral sub- —
stances than in vegetable or animal. Stahl, in 1702, asserted that
in vegetable as well as in animal substances the watery and com-
bustible principles predominated, and that these ultimate constitu-
ents made their appearance when the organic compound was heated
out of contact with air, water and combustible charcoal being

1912.] BOGERT—CARBON COMPOUNDS. 257

formed. These ideas were successfully combated by Boyle, who
had shown, as early as 1661, in his “ Sceptical Chymist,” that the
application of heat leads to quite different results depending upon

a _ whether air is present or not, and that the various residues thus
obtained are unlike.

Many organic substances were discovered during this phlogiston
period, but their real composition (even qualitative) remained
unrecognized. For example, it was assumed that the ultimate con-
stituents of alcohol were oil and water, or a combustible and a
mercurial principle. By far the greater number of the investiga-
tions recorded were still in the inorganic field, probably for reasons
already given, and also because it had not as yet been possible to

_ prepare organic compounds synthetically. While, as has been said,
many authors adopted Léméry’s method of separating mineral,
_ vegetable and animal substances, others still adhered to the old
system of grouping together all acids (sulfuric with lactic, tartaric,
etc.), all salts, etc. .
Boyle’s influence was soon effective in directing a closer scrutiny
_ __ of the composition of compounds, and gradually the true elements
were isolated and studied. |
E The discovery of the composition of carbonic acid gas by La-
a voisier in 1775, and that of water by Cavendish, showed the pres-
a ence of carbon and hydrogen in alcohol (1784). Lavoisier, having
__ established the true principle upon which combustion depends, ana-
_ lyzed various organic substances and came to the conclusion that
vegetable substances were composed generally of carbon, hydrogen
and oxygen, while animal substances contained also nitrogen and
' occasionally phosphorus. He did not distinguish organic chemistry
' as a special branch of the science, or define it as “the chemistry of
_ the compound radicals.” He discussed all acids together, subdivid-
_ ing them into mineral, vegetable and animal.
Macquer, who was professor of medicine in the University of
_ Paris, and a contemporary of Lavoisier, in his “ Elements of the
_ Theory and Practise of Chymistry” (English translation of 1775)
discusses mineral, vegetable and animal oils together, and in the
separate sections of his work devoted to vegetable and animal

258 BOGERT—CARBON COMPOUNDS. [April 20,

chemistry divides the subject according to the method of treatment
employed to obtain the substance rather than according to the char-
acter of the substance itself. Thus we have as the main headings,
“ Operations on unfermented vegetables,” “ Operations on fermented
vegetable substances,” and “Operations on animal substances.”

Fourcroy (about 1790), however, in his well-known text-book,
makes a clean-cut division, placing the vegetable acids in the section
dealing with the vegetable kingdom, and the animal products all
under the animal kingdom. .

It should be noted that at this time carbon was supposed to exist
as such in plants and animals. So Chaptal, in 1791, says:

“ Carbone exists ready formed in vegetables. It may be cleared of all the
volatile and oily principles by distillation, and, by subsequent washing in pure
water, it may be deprived of all the salts which are mixed and confounded
with it.”

In Thomson’s “System of Chemistry’”’ (third edition, 1807),
marsh gas and olefiant gas are discussed with the element carbon,
but the other carbon compounds are scattered under various head-
ings where they are mixed in with inorganic substances.

In the text-books and treatises on chemistry at this period it was
customary to combine mineralogy and geology with the mineral
part, botany with the vegetable section, and physiology with the
portion dealing with animal chemistry, while occasionally physics
received as much space as chemistry in the introductory chapters.

The etherin theory of Dumas and Boullay, propounded by
them in 1815, and later adopted by Berzelius, was an adaptation of
the early theories concerning the composition of organic compounds
(by which they were supposed to consist of an aqueous and a com-
bustible principle) to new conditions. In their theory, many deriva-
tives of alcohol were regarded as compounds of C,H, (to which
Berzelius had given the name “ztherin”’), in the same way that
ammonium salts are derived from NH,:

CH, HCl Ni Fic
C,H,-H,O(alcohol) = NH,-H,O,
CL, - FSO <= Nia
(C,H,),.H,O(ether) = (NH,),H,O(?).

1912.] BOGERT—CARBON COMPOUNDS. 259

The attempt was made to apply this system of classification to other
derivatives of alcohol and even to extend it to all organic com-
pounds; but it never won any widespread recognition.

Berzelius, in 1817, explained the difference between inorganic
and organic compounds by stating that every oxidized inorganic
compound contained a simple radical, while organic compounds
consisted of oxides of compound radicals; and that in vegetable
substances the radical usually consisted of carbon and hydrogen,
while in animal substances it consisted of carbon, hydrogen and
nitrogen. He therefore defined organic chemistry as “the chem-
istry of the compound radicals” (1843). His conception of the
structure of organic compounds was a dualistic electro-chemical
one, in which the organic radicals played the same rdle as the ele-
ments in inorganic compounds; thus, both electro-positive and elec-
tro-negative radicals were assumed.

Gmelin, in the first edition of his great “ Handbook” (1817),
says that a clear distinction should be made between inorganic and
organic chemistry, but that this is a distinction which can be more
readily felt than strictly defined. He describes inorganic compounds
as binary compounds, the simplest consisting of compounds of two
elements, a basic oxide or an acid oxide, which can again unite to
form a binary compound of a higher order, i. e., a salt. Organic
substances, on the other hand, are at least ternary compounds, or
are composed of three simple substances, generally united in less
simple ratio than in inorganic. Hence, he includes in the inorganic
portion of his book methane, ethylene, cyanogen, and the like. He
adds, further, that organic compounds cannot, like the inorganic, be
artificially built up from their elements.

Berzelius also supported the last statement, claiming that in liv-
ing structures the elements obeyed totally different laws from those
which regulate their behavior in the inanimate world. Organic
bodies were thus regarded as the special products of a mysterious
vital force and, although he admitted that bodies occurring in nature
might be converted into other organic compounds by chemical re-
actions, he maintained that none could ever be built up from their
elements. Consequently, Wohler’s production of urea from am-

260 BOGERT—CARBON COMPOUNDS. [April 20,

monium cyanate in 1827, being an incomplete synthesis, did not
immediately overthrow the vitalistic doctrine. Then too, this synthe-
sis remained for some time the only case of the kind, and urea
itself was regarded as standing halfway between inorganic and
organic compounds, because. of the ease with which it decomposed
into carbon dioxide and ammonia.

As the result of the classic researches of Liebig and Wohler,
in 1832, upon the radical of benzoic acid, the radical theory was
enlarged by both Berzelius and Liebig.

Dumas, in 1837, explained the origin of so large a number of
organic compounds from so small a number of elements, by stating
that the latter unite to various radicals, which occasionally act as
chlorine or oxygen, and occasionally as a metal. Cyanogen, ethyl,
benzoyl, etc., were therefore said to constitute the elementary bodies
of organic chemistry, their elementary components only being rec-
ognized when the organic nature of the compound was entirely
destroyed. It is easy to see therefore why the search for these
organic radicals was vested with such interest. In fact, the dis-
covery and isolation of these radicals became the most interesting
problem of the day and led to many valuable results.

In the text-books of this date, we find practically all organic
compounds grouped under the two headings of Vegetable and Ani-
mal Chemistry; very few organic substances remained in the Inor-
ganic part. An ever increasing number of these compounds found
place in the separate chapters on Carbon and its Derivatives. Thus,
in the manual compiled by Webster in 1826, when lecturer in chem-
istry at Harvard University, we find, in addition to CO, CO,, and
other simple compounds previously discussed with carbon, also the
chlorides of carbon, cyanogen, cyanogen halides, HCN, thiocyanic
acid, CS, and thiocarbonates; in Dumas’ great “ Traité de Chimie” —
(1828) also rose oil, naphthalene, sweet oil of wine, naphtha, petro-
leum, turpentine, cyanic and fulminic acids. In most cases, the
acids, being most important, were the first to be considered under
the heading Vegetable Chemistry, then followed the other groups—
oils (fatty and volatile), carbohydrates, camphors, alkaloids, etc., —
the rapid increase in the knowledge of organic compounds being —

1912.] BOGERT—CARBON COMPOUNDS. 261

exhibited in the closer and more logical classification within the
groups. The term “organic chemistry,” to include both vegetable
and animal chemistry, used by Berzelius in his “ Handbook,” was
quite generally adopted.

In 1836, Laurent advanced his nucleus theory which, although
never generally accepted, was used by Gmelin in his “ Handbook,”
with certain alterations, as a foundation for a classification of
organic compounds. According to this theory, every organic com-
pound contains a group of atoms termed a “nucleus” or “germ.”
Primary nuclei consist of carbon and hydrogen, and in these the
hydrogen may be replaced by other elements or groups of elements,
thus giving rise to derived or secondary nuclei, analogous in compo-
sition and chemical properties to the primary nuclei. Other atoms
may be attached to this nucleus, or they may quite surround it, and
when these are removed the primary nucleus reappears.

In 1839, Dumas developed his substitution theory to a theory of
chemical types. An advance was made in the replacement of the
dualistic formulas by unitary ones.

Gerhardt’s residue theory appeared at about this time. It may
well be explained in comparison with the older radical theory.
According to the latter, ethyl nitrate, for example, was regarded as
the nitrate of ethyl oxide, (C,H,),O-N,O,; while, according to
Gerhardt, the combination of the nitric acid and alcohol occurs in
such a manner that one compound gives up a hydrogen and the other
a hydroxyl, forming water, the two “ residues” then uniting to ethyl
nitrate.

The discovery of the compound ammonias by Wurtz (1849) and
Hofmann led to the arrangement of organic compounds on types
of various simple inorganic bodies. For example, it was assumed
that the hydrogen in ammonia not only could be replaced atom for
atom by other elements, but also by compound radicals.

Gerhardt’s type theory was really a combination of his residue
theory with the older radical theory. His four fundamental types
were hydrogen, hydrochloric acid, water and ammonia; H—H,
H—Cl, H—O—H, NCH to which Kekulé subsequently added

262 BOGERT—CARBON COMPOUNDS. [April 20,

methane, CH,. These proving insufficient, multiple and mixed types
were invented.

So early as 1838, Gerhardt had called attention to the fact that
by the action of sulfuric acid upon various substances compounds were
produced in which the characteristic properties of the constituents
were not present. To distinguish such, he coined the term “ copu-
lated compounds.” His original views were considerably enlarged
and modified by Berzelius. According to this point of view, many
radicals were assumed to be composed of several simpler ones. |

Thus, the fact that many monobasic acids (written on the water a

type) could frequently be decomposed with liberation of the CO

group as CO,, together with the alcohol radical, caused the acid

radicals to be looked upon as made up of CO and an alcohol radical,

CH,-CO—O—H, instead of C,H,O—O—H, and paved the way
for the modern structural formulas.

It was Williamson who showed that the existence of compound
radicals could be assumed just as well for inorganic as for organic
compounds, and that organic chemistry could no longer be correctly
designated as “the chemistry of the compound radicals.”

With the discovery of substances common to both plants and
animals, the subdivision of organic chemistry into vegetable and
animal chemistry was quite generally abandoned.

Gmelin says in his “ Handbook” (Vol. VII., pp. 4 and 5):

“Carbon is the only element which is essential to organic compounds;
every one of the other elements may be absent from particular compounds,
but no compound which in all its relations deserves the name “ organic” is
destitute of carbon. . . . If we were to regard as organic those carbon com-
pounds which have been classed hitherto among inorganic substances, namely
carbonic oxide, carbonic acid, sulfide of carbon, phosgene, cast iron, etc., we
might define organic compounds simply as ‘the compounds of carbon’; but
organic compounds are still further distinguished by containing more than one
atom of carbon.... Hence the term ‘organic compounds’ includes all —
primary compounds containing more than one atom of carbon.”
This last qualification was unfortunate, for it was soon shown that
the atomic weight of carbon was 12, instead of 6, and that, therefore,
methyl alcohol and formic acid contained only one atom of carbon —
and would be excluded from organic compounds by the above
definition.

1912.] BOGERT—CARBON COMPOUNDS. 263

Kane, several years before (about 1840), had exposed himself to
no such difficulty. In his “ Elements of Chemistry” he discussed
all organic compounds as carbon derivatives and prefaced this chap-
ter with the following remarks:

“ The element which is peculiarly organic and which, with the one excep-
tion of ammonia, exists in all bodies derived from an animal or vegetable
source, is carbon. It is hence that I have deferred the description of carbon
and its compounds until I could pass directly from it to the great variety of
organic bodies of which it is the basis. With the constituents of inorganic
bodies it has but an accidental connection; for, as I shall hereafter show,
there is no form of carbon which has not at some time made part of an
organized being.”

In the great “Handworterbuch” of Liebig, Poggendorff and
Wohler (1851), we find the following:

“ Since, however, a natural boundary between organic and inorganic com-
pounds in general does not exist, and can no longer be assumed, since we
know that both are subject to the same combining laws, and since, therefore,
if a separation is desired, an artificial and arbitrary boundary line must be
drawn, it appears simplest to designate organic chemistry directly as ‘the
chemistry of the carbon compounds,’ and only a few, namely the simplest car-
bon compounds—CO:, CO, COCI:, CS: and carbamic acid—are more conven-
iently referred to inorganic chemistry.”

Kekulé later (1866) expressed himself in similar vein. He says:

“We must come to the conclusion that the chemical compounds of the
vegetable and animal kingdoms contain the same elements as those of inani-
mate nature. We know that in both cases the same laws of combination hold
good, and hence that no differences exist between organic and inorganic com-
pounds either in their component materials, in the forces which hold these
materials together, or in the number or mode of grouping of their atoms. . . .
If, however, for the sake of perspicuity, a line of demarcation is to be
drawn, we must remember that this boundary is an empirical rather than a
natural one and may be traced at any point which seems most desirable. If
we wish to express by ‘organic chemistry’ that which is usually considered
under the name, we shall do best to include all carbon compounds. We, there-
fore, define organic chemistry as ‘the chemistry of the carbon compounds,’
and we do not set up any opposition between inorganic and organic bodies.
That to which the old name of organic chemistry has been given, and which
we express by the more distinctive term of the chemistry of the carbon com-
pounds, is merely a special portion of pure chemistry, considered apart from
the other portion only because the large number and the peculiar importance
of the carbon compounds renders their special consideration necessary.”

This change in the significance of the term “ organic” chemistry

264 BOGERT—CARBON COMPOUNDS. [April 20,

marks the passing of the old Vitalistic doctrine, and before we lose
sight of it altogether, it may not be amiss to quote some interesting
passages from Meldola’s recent work on the ‘‘ Chemical Synthesis
of Vital Products.” He says, among other things, that while it is
quite true that we can produce in the laboratory substances identical
with those formed in the living organism, in the majority of cases
we cannot maintain that the syntheses are identical in their mechan-
ism, and those who would “explain” the biochemical processes by
a simple chemical equation should bear in mind the fact that “the
sign connecting the two sides of the equation stands for the whole
unexplored region of biochemical transmutations.” We lack exact
knowledge of the nature of the synthetic processes going on in the
living organism, and there is little reason for believing that they have
much analogy with our laboratory methods. In fact, we cannot
duplicate in the laboratory the most fundamental of all these syn-
theses—the photosynthesis accomplished by plants, in which carbon
dioxide is absorbed by an organic compound and the product decom-
posed with liberation of oxygen. While the author does not at all
array himself on the side of the vitalists, he concludes, from the
summary of experimental results recorded in his book,
“that the testimony of pure chemistry cannot, as it stands at present (i. ¢.,
about 1904), be legitimately interpreted into a direct negation of Vitalism in
any form. This negation may, and probably will be made possible in the
future, when our chemical methods have been made to approximate more
closely to the vital methods.”

Until about the year 1830, it was supposed that the same ele-
ment could present itself in only one form, endowed with one in-
variable set of properties, and that from the combination of the
same elements in the same proportions, only one and the same
substance could possibly result. The discovery of isomeric com-
pounds, consequently, led to a more careful search for the cause
of the difference in the properties of substances with the same per- —
centage composition, With the establishment of the correct rela-~
tions of atom, molecule and equivalent, the way was opened for the
valence hypothesis, and in 1858 Kekulé said:

“TI do not regard it as the chief aim of our time to detect atomic groups
which, owing to certain properties, may be considered radicals, and thus to

1912.] BOGERT—CARBON COMPOUNDS. 265

include the compounds under certain types, which in this way have scarcely
any other significance than that of type or example formulas. I am rather of
the opinion that the generalization should be extended to the constitution of
the radicals themselves, to the determination of the relation of the elements
among themselves, and thus to deduce from the nature of the elements both
the nature of the radicals and that of their compounds.”

The recognition of the quadrivalence of carbon atoms and their
power of uniting with each other, accounted for the existence and
combining value of radicals, as well as for their constitution. The
type theory therefore found a broader generalization and ampli-
fication in the extension of the valence hypothesis of Kekulé and
Couper to the derivatives of carbon.

While in years gone by, as has been said, the classification of
carbon compounds was mainly or exclusively according to the
source from which they were obtained, in modern times the classi-
fication has been based solely upon their structural relations and
entirely independent of their origin.

One of the first to adopt this method of classification was Léwig,
in 1840. Gmelin, in 1848, arranged carbon compounds in his
“Handbook” according to the number of carbon atoms they con-

tained, and subdivided them on lines similar to those suggested in
-Laurent’s nucleus theory, as already mentioned.

Schiel, in 1842, remarked upon the fact that alcohol radicals
form a simple and regularly graded series of bodies, of which the
properties as well as the composition exhibit corresponding regular
gradations, and he predicted the existence of other similar series.
Shortly afterward, Dumas pointed out that the fatty acids con-
stitute such a series. Gerhardt, in his “ Précis de Chimie Organique ”
(1844), collected a large number of such groups, gave to them the
name “homologous series,” and distributed them under the general
divisions suggested by his type theory. This recognition of homolo-
gous series as the units in classifying organic compounds was a
great step in advance, simplified the classification enormously, and
was very fruitful in stimulating investigation to discover other simi-
lar series.

The terms “ fatty” and “aromatic” chemistry appeared about
1858. At first used in more restricted sense, they were gradually

266 BOGERT—CARBON COMPOUNDS. | [April 20,

extended until the former covered all acyclic compounds and the
latter nearly all cyclic. This subdivision of organic chemistry has
been generally adopted (with few exceptions) ever since. More
recently, it has been found advisable, particularly in the larger text-
books, to split up aromatic chemistry into carbocyclic and hetero-
cyclic. So that wenow have the threeclasses, fatty (or aliphatic),
carbocyclic (or isocarbocyclic), and heterocyclic. And yet this clas-
sification is no longer satisfactory, for there is no sharp dividing
line between straight-chain and cyclic compounds, the one merging
gradually into the other. Certain cyclic structures (as the ethylene
oxides, lactones, lactames, imides, etc.) are invariably discussed
under fatty chemistry, and certain straight-chain compounds (like
the olefin terpenes and their derivatives) are generally taken up
under aromatic chemistry, while the alicyclic compounds, as their
name indicates, form the natural transition from aliphatic to cyclic
structures.

With the filling in of the gaps heretofore existing between ali-
phatic and aromatic chemistry, the time seems appropriate for a
change in our classification of carbon compounds which shall recog-
nize the essential unity of the subject, and no longer give the im-
pression that organic chemistry is composed of three varieties of
chemistry—fatty, carbocyclic and heterocyclic. .

The method which appeals particularly to the writer, and which
he has followed with his classes at Columbia University for the
past ten years, is to begin with the hydrocarbons, as the simplest

carbon compounds, and discuss in succession the various series of

hydrocarbons, saturated and unsaturated, acyclic and cyclic, before
passing on to the next group. After a careful consideration of
these fundamentally important compounds, other classes of carbon
compounds are taken up in similar manner ; all of the simple halogen
derivatives being considered together, all the nitro bodies, all the
alcohols, and soon. All other classes are very conveniently regarded
as derivatives of the hydrocarbons. With a knowledge of the prop-
erties of the various series of hydrocarbons, the study of their
derivatives then resolves itself chiefly into the following questions: —
(1) What are the characteristic properties of the group under con- —

1012] = | BOGERT—CARBON COMPOUNDS. 267

sideration (be it halogen, amino, carboxyl, or any other group) ?
(2) In what manner are its properties influenced by the hydrocar-
bon nucleus to which it is attached, and by the other groups pres-
ent? (3) How are the properties of the entire molecule likely to
be affected by the introduction of such an element or group? To
take a single case, by way of illustration, the simple hydroxyl
derivatives of the hydrocarbons are numerous and important, and
certain well defined characteristics cling to the hydroxyl group irre-
_ spective of the particular hydrocarbon nucleus to which it is
attached. Thus, its hydrogen may be replaced by metals (giving
__ alcoholates or phenolates), by hydrocarbon radicles (giving ethers),
by acid radicals (giving esters), or the entire hydroxyl may be re-
placed by a halogen by acting upon it with a phosphorus halide.
That the behavior of this hydroxyl group is influenced, however,
by the hydrocarbon nucleus to which it is attached, can be seen at
once by comparing a phenol with an alcohol. Further, the presence
of the hydroxyl group alters the properties of the entire molecule,
as appears immediately when we compare the behavior of benzene
and of phenol towards bromine, nitric acid, oxidizing agents, and
so forth.

In this way, the characteristic properties of the different sub-
stituents may be firmly fixed in the mind, as well as the general
nature of the various classes of organic compounds, and the student

- ~ learns to associate certain chemical reactions with certain chemical

_ structures, and to reason intelligently from a given structural for-
mula as to the chemical behavior of the substance, whether he ever
heard of the compound before or not, thus learning not only to
deduce correct constitutional formulas, but also to grasp at a glance
the chemical properties summarized by such formulas.

This method of classification saves an immense amount of
repetition and brings home very clearly the fundamental proper-
ties and relationships of organic compounds, as well as the applica-
tion of these properties in analytical and industrial chemistry.

Another advantage which follows from this arrangement, is the

manner in which it lends itself to laboratory illustration. As all
compounds containing the same substituting element or group are

268 BOGERT—CARBON COMPOUNDS. [April 20,

discussed together, examples for SOBOCS practice may be drawn
from either the acyclic or the cyclic field.

The author claims no originality for this suggested classificataem
except so far as certain details are concerned, for it was recom-
mended and adopted so long ago as 1864 by that distinguished Rus-
sian chemist, Butlerow, in his “ Lehrbuch der organischen Chemie,”
and has won adherents in this country in Professors W. A. Noyes, —
Kremers, and possibly others. My reasons for presenting it at the
present time are the evident need for some change in our present
system, brought into the foreground by the approaching publication
of the new edition of Beilstein’s monumental “‘ Handbuch der
organischen Chemie” and the creation of national commissions on
the nomenclature of organic compounds, and my firm belief, as the
result of experience, that the adoption of such a system will aid
inspiring and stimulating greater interest in the study of organic
chemistry.

CotumB1A University, New York, N. Y.,

OrcGANIC LABORATORY,
April 15, 1912.

Lb9

PROCEEDINGS

~AMERICAN PHILOSOPHICAL SOCIETY
HELD AT PHILADELPHIA
FOR PROMOTING USEFUL KNOWLEDGE

Vot. LI AUGUST—SEPTEMBER, 1912 No. 206

THE HENRY M. PHILLIPS PRIZE ESSAY.
REPORT OF THE JUDGES.
PHILADELPHIA, March 30, 1912.

To THE PRESIDENT AND COUNCIL
OF THE AMERICAN PHILOSOPHICAL SOCIETY,
Gentlemen:

The undersigned, a committee of Judges elected by the Ameri-
can Philosophical Society on December I, 1911, to examine the
Essays submitted to the Society in competition for the Henry M.
Phillips Prize, respectfully report that they have examined with

care the nine essays submitted for the prize, and, after personal
consultation and discussion, have awarded the prize to the essay
entitled “Sovereignty can only be an unit and must remain an
unit—Bismarck,” which proves to be the work of Charles H. Burr,
Esq., of Philadelphia. The Committee found very great difficulty
in deciding between this essay and one written by “ Historicus”
[Edward S. Corwine, Esq., of Princeton, New Jersey].
JosepH H. CHoate,
J. M. Dicxtnson,
Joun C. Gray,
Henry WADE Rocers,
James Brown Scorr.
Committee.

PROC. AMER, PHIL, SOC., LI, 206 0, PRINTED OCT, 21, I9gI2.

THE TREATY-MAKING POWER OF THE UNITED
STATES AND THE METHODS OF ITS ENFORCE-
MENT AS AFFECTING THE POLICE POWERS
OF THE STATES.

CONTENTS.

Pace
Intropuctory: Including a sketch of the evolution of the treaty clauses
of the Constitution in the Federal Convention .......... € Hees vuiee ae

I. Proptems MaINLy POLITICAL:
(a) the powers of Congress with reference to appropriations to
carry a treaty into effect; with reference to tariff duties,

QL: 5 5S5 a Siva cine ni ee eee ee ea <a 285
(b). the acquisition of territory, 60.0562 bees e sos sce kee 203
(c) the cession of territory, 3... c cece cc ceesestsecece seen 300
(d) the significance of clause 2 of Article I, Section 10, ........ 301
(e) the first: eight -amendmetits. . 5.000.650555 6s 00 ees ceeueees 303

II. ProptEMs or AN INDIVIDUAL AND JuRipIcAL NaturE—The Treaty-
making Power and its relations to Congressional Legislation —A
review of the decisions. 0.005.050 so ei kw oh et von de eee 306

III. PropteEMS oF AN INDIVIDUAL AND JuRIDICAL NATuRE—The Treaty-
making Power and its relations to State law: ............cccccese 327
(a) the conditions of the Nation and the prevalent ideas when
the Constitution was created, .0.563.000455 ie oee ee eee 328
(b) the contemporary interpretation of the Constitution in this
TOMA i his Cys we eA ea wise be . 336 ©
(c) a review of the decisions. 0.00. 60066. oa. wn oe eae eee cas SO

IV. THe TREATY-MAKING PoweER AND STATE Po.ice Power:
(a) the utterances of judges between the death of Marshall and
the Civil War ‘considered, . 5... 63.0.0 eee eels + aoe 356
(b) the Tenth Amendment to the Constitution, .............. +.

(c) a review of the decisions respecting the exercise of State
Police Power6 55 SS ae uve wee ee
(d) the significance of the reaction under Taney. .............. 374
V. THe MernHops oF ENFORCEMENT OF TREATY PROVISIONS CONSIDERED
WITH REFERENCE TO STATE POLICE POWERS ........cceeceeseeeee <2
(a) certain diplomatic incidents, .........:50.+0cseues ee dee vos a ae

(b) the power of the Federal Government to enforce treaty
provisions—its extent examined by a review of the
decisions, 2.6 csasccevcwsssceeses ss dcvevnue re sain anenenane 383

(c) the present state of Federal statutes and the language of
treaties on this subject considered. .............eccceseee 392

NOTES} kes ocean bo oy UE Oe bs Cas OER EE Bea . 308

y 9

THE TREATY-MAKING POWER OF THE UNITED
STATES AND THE METHODS OF ITS ENFORCE-
MENT AS AFFECTING THE POLICE
POWERS OF THE STATES.

By CHARLES H. BURR, Esg.,
OF PHILADELPHIA.

(Read April 20, 1912.)

The Crowned Essay for which the Henry M. Phillips Prize
_ of two thousand dollars was awarded, on April 20, 1912, by the
_ American Philosophical Society.

_“ Sovereignty can only be an unit, and must remain an unit.”—Bismarck.

To the treaty-making power, the United States owes the posses-
sion of three-fourths of its territory. Yet, the very President who
negotiated the first acquisition, denied the constitutional right he
assumed to exercise when Louisiana was purchased, and justified
by considerations of national expediency, the provisions of a treaty
which he had declared to be an unwarranted usurpation of power.*
In more recent history, when, following the Mafia riots, Italy with-
drew her minister, the Secretary of State declared to that country
and to the world, the powerlessness of the Federal government to
afford redress for a violated treaty.2, Again, but a few years since,
when Japanese treaty rights seemed about to be ignored by Cali-
fornia authorities, the then Secretary of State enunciated the
supremacy of treaty provision over State law in uncompromising
terms.®

Only with these and similar instances in mind, can one appre-
ciate at once the far-reaching magnitude of the treaty-making power,
and the confusion of ideas by the people and by publicists alike, con-

*See note I.
* Infra, pp. 204-208.
_ * Infra, pp. 207-209.
271

272 BURR—THE TREATY-MAKING POWER LApril 20,

cerning its extent and its effectiveness. Toward the clarification of
those ideas, this essay is an attempt.

It is an unescapable essential in English law that the actual facts,
the surrounding circumstances, the causes and the results, which
make up a practical controversy brought up for practical decision,
must be within the knowledge of those who judge, and guide their
minds to the principles which both underlie and spring out of their
decisions. The common law is an effort—so far as that effort may
be available under the conditions—to apply the methods of induc-
tion in arriving at truth respecting the problems which life offers to
a court for solution. Always there is present in the processes of the
law a secondary and subordinate deductive application of principles
theretofore evolved to the concrete facts of the particular cases
newly arising; but in the larger sweep of time, the main effort of
the common law is toward the determination of truth by the methods
of induction.

The recognition of this inherent nature of English law must be
ever present to the inquirer and student. Thus only will the law
be conceived, as it is, an organic body, a thing living. The decided
cases are the manifestations of its life, and these must be analyzed
with all possible consideration of the facts out of which they came,
the manner of thought of the times when they were decided, the
stage of development which the principle of law sought to be exam-
ined had then reached. Language of a member of the Supreme
Court of the United States used in delivering its opinions, carried
with it quite different connotations, has for us today varying authori-
tative force, according to the period of our history when it was
written. The same words have different implications and mean-
ings and values, when uttered in the earliest days of the Supreme ~
Court, in the years preceding the outbreak of the Civil War, in the —
Reconstruction period, in this twentieth century. It is for the stu-

dent of law, with what historical knowledge he may possess, to 4 :

endeavor to envisage the political conditions existing when the a
decisions examined were delivered; with what literary discrimina- —
tion is his, to separate the salient and authoritative utterances of a

1912.] OF THE UNITED STATES. 273

judge from the illustrative and ephemeral; with ‘what power of
inductive logic he has acquired, to trace through the recorded deci-
sions the development and validity of the judicial conclusions
reached. And however weak and inadequate may be the natural
faculties and acquired knowledge of the student, let him and those
who do him the honor of examining his work, remember that true

method, laboriously and sincerely used,-can alone reach valid results.

The most brilliant a priori discussion of what the law will be found
to be, must give place to the humblest study of what the law really
is. The crowning advantage of true method is that the method,
and not the student’s genius, attains the goal. Grant only to the
student capacity for sincerity and for labor, and, as he works by
the historical method, the circumstances and political conditions of
the time spread themselves out before us; the judges speak to us in
language, the authority and prophecy underlying which we at this
distance of time far better understand than did they; the slowly
developing principles of law lie self-revealed before us in their
beginnings, their growth, their maturity. The student is rightly
forgotten, the method is all.

_ To collect together the cases relevant to our subject decided by
the Supreme Court of the United States, and then to spread them
before us in historical sequence for examination and analysis in the
light of surrounding circumstances and preéxisting decisions, is the
object of this essay. The assumption is general that such cases are
few in number. A recent essay thus begins:

“Something has been written on the extent of the treaty-making power
of the President and the Senate. Little has been decided. ...A very few
cases have involved a determination of the extent of the treaty-making power,
and in these few the point decided is so narrow, was so inadequately, or not
at all argued, or has been rendered so doubtful by dicta of later judges of the
Supreme Court as to leave the whole question open.”*

This is a conclusion which has little foundation in fact. Rather
must one prepare oneself for a great number of cases which require

__ consideration, and the student must be careful not to obscure the

*“ The Extent of the Treaty-making Power of the President and Senate
of the United States,” Professor William E. Mikell, American Law Register,

Vol. 57, p. 435.

274 BURR—THE TREATY-MAKING POWER [April 20,

subject by losing himself in the immaterial. There are great
enlightening constitutional cases, and a multitude of only illus-
trative and cumulative value. A sense of proportion must accom-
pany one always. Therefore in this essay, with inconsiderable
exceptions, the decisions of courts other than the Supreme Court
of the United States have been, although examined, passed over
without mention. And detailed analysis to show the irrelevancy of
certain cases in the Supreme Court, has often been omitted. There
remains a great wealth of significant and conclusive material.

Mingled, however, with problems of essentially legal nature are
problems fundamentally political. These are, moreover, political
problems of the greatest magnitude in a nation’s life, arising as they
do out of relations with the other powers of the world. By pro-
cesses quite other than the calm slow advance of the English race
toward the establishment of principles of law, will be determined
the political scope of the treaty-making power of the United States.
Sudden is the emergency, momentous the issues, on the executive
rests primarily the decision; economic desiderata, party politics, the
shrieks of journalism, the make-weight of individual temperament
—one or all may influence the result; and the treaty is signed. One
influence alone is not felt: the opinion of the Supreme Court of the
United States. Years later that Court may be heard in explanation
of the event, in support of it, in apology for it—never yet in the
nation’s history has the Court been heard in its undoing. It was
thus when Louisiana was purchased, and Texas annexed; likewise
in similar instances will it be again. So, at the beginning of this
essay, and in no uncertain words, it has seemed best to en-
deavor to bring out in bold relief the thought that in their larger
significance many of the problems involved in the exercise of the
treaty-making power are political, and only subordinately and sec-
ondarily legal. Conclusions may therefore be found to lack sanc-
tion in legal reasoning while they find it in political considerations.
And in attempting at times to forecast the future and suggest the
line of development along which the attitude of the people of the
United States toward the treaty-making power may proceed, such
political considerations must necessarily have their place.

re x912.] OF THE UNITED STATES. 275

Before examining, however, into the primarily political ques-
___ tions affecting the treaty-making power which may present them-
selves for solution, it will be well to excerpt the clauses of the Con-
stitution relative to that power. They are as follows:

_ “No State shall enter into any treaty, alliance, or confederation.”
ce Article I, Section ro, Clause 1.

a “No State shall, without the consent of Congress ... enter into any
4

____-—s agreement or compact with any State, or with a foreign power.” Article I,
Section ro, Clause 2.

os “He [the President] shall have power, by and with the advice and con-
sent of the Senate, to make treaties, provided two thirds of the Senators
"present concur.” Article II, Section 2, Clause 2.

| “The judicial power shall extend to all cases, in law and equity, arising

- __ under this Constitution, the laws of the United States, and treaties made, or

. oe which shall be made, under their authority.” Article III, Section 2, Clause 1.

= “This Constitution, and the laws of the United States which shall be

____ made in pursuance thereof; and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding.” Article
VI, Clause 2.

The history of the adoption of these clauses by the framers of
the Constitution in Federal Convention is interesting and has a
certain significance.

It will be recalled that the Convention met in accordance with
a resolution of the Congress of the Confederation adopted Febru-
ary 21st, 1787. The date named was May 14th, 1787, but it was not
until May 25th that the Convention organized. On May 29th Gov-
ernor Randolph of Virginia presented a series of resolutions to
serve as leading principles in the formation of the new government.
These, known as the Virginia plan, were discussed by the Conven-
tion sitting as a committee of the whole, and were severally
amended, approved, or rejected. On June 15th, a series of resolu-
tions, which became known as the New Jersey plan, was intro-
duced. On July 26th, the Convention adjourned to August 6th,
_ having appointed a committee of detail to prepare a constitution
_ along the lines of the resolutions theretofore adopted. On August
6th the committee reported, and the Convention passed seriatim

upon the provisions reported. On September 8th the committee of

276 BURR—THE TREATY-MAKING POWER [April 20,

style was appointed, which, on September 12th, reported the Con-
stitution substantially as it was afterwards adopted. On September
15th the Convention adjourned.

The two clauses of Article I., Section 10, of the constitution
existed in substance in the Articles of Confederation, where in the
first and second paragraphs, respectively, of Article VI, it is said:

“No State, without the consent of the United States in Congress |
assembled, shall send any embassy to, or receive any embassy from, or enter
into any conference, agreement, alliance, or treaty with any king, prince, or
State...

“No two or more states shall enter into any treaty, confederation, or
alliance whatever between them, without the consent of the United States in

Congress assembled, specifying accurately the purpose for which the same is
to be entered into, and how long it shall continue.”

On August 6th the committee of detail reported the Articles XII.
and XIII. as follows:

“No State shall coin money; nor grant letters of marque and reprisals;
nor enter into any treaty, alliance, or confederation; nor grant any title of
nobility.”

“No State, without the consent of the Legislature of the United States,
shall emit bills of credit, or make anything but specie a tender in payment of
debts; nor lay imposts or duties on imports; nor keep troops or ships of war
in time of peace; nor enter into any agreement or compact with another
State, or with any foreign power; nor engage in any war, unless it shall
be actually invaded by enemies, or the danger of invasion be so imminent, as
not to admit of delay, until the Legislature of the United States can be
consulted.”* ;
The committee on style varied the expression of these provisions,®
and just as the Convention was about to adjourn, the wording was
still further but immaterially changed.’

The provision for making of treaties by the President and
Senate, afterwards contained in the Second Section of the Second
Article of the Constitution, was the subject of some controversy.
In Governor Randolph’s speech presenting what became known as
the Virginia plan, he referred to dangers existing on account of
State violations of treaties made under the Confederation, as con-

* Records of the Federal Convention, Max Farrand, Vol. II., p. 187.

*Ibid., p. 597.
"Thid., p. 621.

#912] OF THE UNITED STATES. 277

stituting one of the paramount considerations which should move
the Convention to form an effective Federal government; but his
fifteen resolutions do not in any way cover the subject of treaties.*
_ The inference would seem to be that he assumed that Congress, as
the treaty-making power under the Confederation, would likewise
exercise the power under the Constitution. However that may be,
_ the first mention of the treaty-making power occurs in the New
Jersey plan on June 15th, where the reference is to the extension of
_ the judicial power to questions arising under treaties, and to the
enforcement of treaties.° When the committee of detail reported
a draft of the Constitution on August 6th, the First Section of the
Tenth Article according to the then arrangement, was as follows:
“The Senate of the United States shall have power to make treaties, and
to appoint Ambassadors, and Judges of the Supreme Court.’””
_ On August 15th Colonel Mason, of Virginia, seconded a motion to
take the power of originating revenue bills from the Senate, and
Madison’s notes say:

a “ He was extremely earnest to take this power from the Senate, who he
Said could already sell the whole country by means of treaties.”

‘The notes next record the speech of Mr. Mercer of Maryland:

“He contended (alluding to Mr. Mason’s observations), that the Senate
ought not to have the power of treaties. This power belonged to the Execu-
_ tive department; adding that treaties would not be final so as to alter the
laws of the land, till ratified by legislative authority. This was the case of
_ treaties in great Britain; particularly the late Treaty of Commerce with
France. ;

“Col. Mason did not say that a treaty would repeal a law; but that the
Senate by means of treaty might alienate territory &c., without legislative
-$anction. The cessions of the British Islands in W— Indies by treaty alone
were an example—If Spain should possess herself of Georgia therefore the
Senate might by treaty\dismember the Union.”*

On August 23rd the provision in the form that itcame from the com-

mittee of detail, giving the power of making treaties to the Senate,

came before the Convention. The report of the proceedings by
* Farrand, Vol. I., pp. 20-2. *"Thbid., p. 297.

*Ibid., p. 245. *Thid., p. 297.
” Farrand, Vol. II., p. 183.

278 BURR—THE TREATY-MAKING POWER [April 20,

Madison is instructive. He urges that the president should be an
agent in making treaties. Gouverneur Morris moved an amend-
ment: “but no treaty shall be binding on the United States which
is not ratified by a law.”” This was opposed by several on the ground
of the practical difficulty it would cause in negotiations, and the
amendment was defeated by a vote of 8 to 1, one State being
divided. The report, given in full in the appended notes,* con-
cludes thus:

“Mr. Madison hinted for consideration, whether a distinction might not
be made between different sorts of treaties—allowing the President and
‘Senate to make treaties eventual and of alliance for limited terms—and
requiring the concurrence of the whole Legislature in other treaties.”™

On August 31st, a committee of one member from each State was
appointed, to whom were referred the parts of the Constitution, con- _
sideration of which had been postponed.* This committee reported —
on September 4th. In this report, the clause stood:

“The President by and with the advice and consent of the Senate, shall
have power to make treaties... . But no treaty shall be made without the
consent of two thirds of the members present.”

On September 7th this section came up for adoption. Madison’s
record says: |

“Mr. Wilson moved to add, after the word ‘Senate’ the words, ‘and
House of Representatives.’ As treaties he said are to have the operation of —
laws, they ought to have the sanction of laws also. The circumstance of
secrecy in the business of treaties formed the only objection; but this he
thought, so far as it was inconsistent with obtaining the Legislative sanction, _
was outweighed by the necessity of the latter. :

“Mr. Sherman thought the only question that could be made was whether
the power could be safely trusted to the Senate. He thought it could; and
that the necessity of secrecy in the case of treaties forbade a reference of
them to the whole Legislature.

“Mr. Fitzsimmons 2ded. the motion of Mr. Wilson, and on the question

“N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del: no) Mao gee
Va. no. N.C. no. S.C. no. Geo. no. ey

“The first sentence as to making treaties was then agreed to; nem=:

con 917 Pas

*® See note 2. *Thbid., p. 495.
% Farrand, Vol. II., pp. 392-4. "Thid., p. 538.
*Tpbid., p. 481.

ae

1912.] OF THE UNITED STATES. 279

Later this same day the final sentence of the clause was before the

Convention. Madison’s report continues:

“Mr. Wilson thought it objectionable to require the concurrence of two
thirds which puts it in the power of a minority to control the will of a
majority.

“Mr. King concurred in the objection; remarking that as the Executive
was here joined in the business, there was a check which did not exist in
Congress where the concurrence of two-thirds was required.

“Mr. Madison moved to insert after the word ‘treaty’ the words ‘ except

treaties of peace’ allowing these to be made with less difficulty than other
treaties—It was agreed to nem: con:””*
The report then relates that Madison further moved to amend by
permitting treaties of peace to be negotiated by two thirds of the
Senate without the concurrence of the President.1® This was de-
feated.”° :

On September 8th a reconsideration of the whole clause was
agreed to, and the following motions were made with the indi-
cated results:

That the words “except treaties of peace” be stricken out:
ayes 8; noes 3.

That two thirds of the Senate must concur be stricken out:
ayes 1; noes Q; divided I.

That no treaty be made with the consent of two thirds of all the
members of the Senate: ayes 3; noes 8.

That a majority of all the Senators suffice: ayes 5; noes 6.*2

In the report of the committee of style the existing form was
adopted.”

The sixth resolution offered by Governor Randolph had enumer-
ated among the powers given to Congress the right “to negative all
laws passed by the several States, contravening in the opinion of
the national legislature, the articles of union.”** The twelfth reso-
lution had included among the subjects of Federal judicial jurisdic-
tion, “questions which may involve the national peace and har-
mony.” On May 3ist this resolution passed with the amendment

*Thid., p. 540. *Thid., p. 590.
*Tbid., p. 541. * Farrand, Vol. I., p. 21.
» See note 3. *Thid., p. 22.

* Farrand, Vol. II., p. 544.

280 BURR—THE TREATY-MAKING POWER [April 20,

added on motion of Benjamin Franklin of the words: “or any
treaties subsisting under the authority of the Union.’”*® On June
8th the reconsideration of this resolution was moved and a long dis-
cussion ensued between those who felt the power was necessary to
insure Federal effectiveness, and those who, like Mr. Williamson,

of North Carolina, feared it “might restrain the States from regu- — :

lating their internal police.”*> The resolution was eventually disap- —
proved by a majority.*7 On June 13th the twelfth resolution was
adopted.** On June 15th the New Jersey plan was submitted, which
specially included within the jurisdiction. of the Federal judiciary,
cases “in the construction of any treaty or treaties.”*® When the
committee of detail reported, the power given to Congress by the
sixth resolution of the Virginia plan had disappeared, and the juris-
diction of the United States Supreme Court was declared to extend
“to all cases arising under laws passed by the Legislature of the
United States.”*° No reference to cases arising under treaties was in-
cluded. A series of amendments then ensued. The judicial power
was declared to extend to cases in equity as well as at law.** In
addition ‘“‘to all cases arising under laws” were included those
arising under the Constitution*®? and under treaties.**

The committee of style reported this provision in the form in
which it now appears** if one except an immaterial verbal altera- _
tion, later made.*®

_As with the judiciary provisons of Article III. of the Constitu-
tion, which remained unconceived so long as the national legisla-
ture was regarded as the proper body to negative unconstitutional
State laws, so also was it with Article VI. Its seed is to be found.
not in the Virginia plan but in the New Jersey resolutions offered
on June 15th. The sixth was as follows:

“Res’d. that all acts of the United States in Congress made by virtue
and in pursuance of the powers hereby and by the articles of confederation

*Thbid., p. 47. *Thid., p. 428.
**Tbid., p. 164. = Thid., p. 430.
* Farrand, Vol. II., pp. 21-2. * Tbid., D. 431.
* Farrand, Vol. I., p. 232. *Thid., p. 576.
*Thid., p. 244. * Tbid., p. 621.

-’ Farrand, Vol. IL., p. 186.

1912.] OF THE UNITED STATES. 281

vested in them, and all treaties made and ratified under the authority of the
United States shall be the supreme law of the respective States so far forth
as those acts or treaties shall relate to the said States or their citizens, and
that the judiciary of the several States shall be bound thereby in their deci-
sions, anything in the respective laws of the individual States to the contrary
notwithstanding ; and that if any State, or any body of men in any State shall
oppose or prevent ye carrying into execution such acts or treaties, the federal
Executive shall be authorized to call forth ye power of the Confederated
States, or so much thereof as may be necessary to enforce and compel an
obedience to such Acts, or an observance of such treaties.”™

On July 17th the sixth resolution of the Virginia plan was defeated,
and Luther Martin of Maryland moved the following resolution
which was unanimously adopted:

“That the legislative acts of the United States made by virtue and in
pursuance of the articles of union, and all treaties made and ratified under
the authority of the United States, shall be the supreme law of the respective
States, as far as those acts or treaties shall relate to the said States, or their
citizens and inhabitants—and that the judiciaries of the several States shall

be bound thereby in their decisions, anything in the respective laws of the
individual States to the contrary notwithstanding.”™

The committee of detail reported the section in the following form:

“The acts of the Legislature of the United States made in pursuance of

this Constitution, and all treaties made under the authority of the United
States shall be the supreme law of the several States, and of their citizens and
inhabitants; and the judges in the several States shall be bound thereby in
their decisions; anything in the Constitution or laws of the several States to
the contrary notwithstanding.”*
On August 23rd the first clause was changed to read: “ This Con-
stitution and the laws of the United States made in pursuance
thereof.”*® On August 25th the words “or which shall be made”
were inserted to cover treaties preéxisting. So modified, the pro-
vision received unanimous approval.*® It remained thereafter unal-
tered by the Convention except by its action in approving the form
given to it by the committee of style.**

The general plan of the Constitution would seem to be simple.
The Federal power is divided into the legislative, the execu-
tive, and the judicial. The legislative, limited to certain enu-

* Farrand, Vol. I., p. 245. *Thid., p. 380. 3

* Farrand, Vol. II., pp. 28-0. “Tbid., p. 417.
*Tbid., p. 183. “Thbid., p. 603.

282 BURR—THE TREATY-MAKING POWER fApeit ae)

merated subjects, is vested in Congress composed of two houses,
one intended to be representative of the several States and the
other of the people at large. The executive power is committed to
the President; the judicial power is established in the Supreme
Court, and in such inferior courts as may be ordained by Congress.
The treaty-making power occupies an anomalous position. It is
given to the President acting in conjunction with two-thirds of the
Senate, and the judicial power is declared to extend to cases arising
under treaties. Finally there is inserted the solemn declaration
that the Constitution, the laws of the United States, and all treaties,
shall be supreme law above the constitution and laws of each State.
The amendments to the Constitution neither expressly nor appar-
ently affect the treaty-making power or its exercise. The first ten
were adopted immediately after the ratification of the Constitution,
and of these all but the last two were intended and have been inter-
preted to operate as restraints on Federal action. These two con-
stitute a specific reservation to the States of all powers not dele-
gated to the United States nor prohibited to the States by the Con-
stitution.

When one comes to deal with the problems arising out of the
exercise of the treaty-making power, it is essential to appreciate one
basic fact: that the treaty-making power is in its essence a power
to deal with parties—all other powers granted to the Federal
government or reserved to the States, are powers to deal with
subjects. About to enter into the consideration of controverted
problems, one seeks for words with which to emphasize and
throw into high relief this determining consideration. Always must
it be borne in mind as a significant factor in the problem, and to
recognize it, is often to find the answer. A treaty is a contract made —
with another sovereignty. It is the fact that the contract is made
with a sovereign nation—that is, made with a certain party—which
constitutes it a treaty. On the other hand, it is the nature of the
subject legislated upon which brings it within the power of Con-
gress, or relegates it to the States. Attempts to reconcile, or rather
to make mutually consistent, the treaty clauses of the Constitution
and, for example, those clauses giving power of legislation to Con- —

t912.] - OF THE UNITED STATES. 283
gress, must fail, unless there is borne constantly in mind this funda-
mental distinction between the powers granted. If there be given
to A the power to contract with X, and to B the power to make
regulations on certain subjects affecting X, and to C the power to
make regulations on other subjects affecting X; then what shall
result when the provisions of an agreement made by A with X con-
flict with regulations of B or of C?
= The fundamental nature of the questions which underlie an
_ _ examination into the treaty-making power of the United States is
best appreciated by the algebraic statement of the problem just
_ __ attempted. It will be well to restate it in equivalent concrete forms.
‘These are:
First: When a treaty deals with a subject upon which Congress
is authorized to legislate, is such treaty valid? or perhaps we should
rather ask, what is its status?
Second: When a treaty deals with a subject upon which the

__ States as opposed to Congress are authorized to legislate, is such
_ treaty valid? or perhaps we should rather ask, what is its status?
: On the correct answer to these two fundamental questions must
depend any understanding of the status and efficacy of the treaty-
_making power of the United States. The Federal government as
an entity can alone make treaties. Such is the emphatic provision
of the Constitution. There is therefore no distribution of the treaty-
making power between the Federal government on the one hand and
_the several States, on the other, as is the case with the executive, the
judicial, and the legislative power. An executive act may be by a
State governor or by the President, a court decree may be that of
a State or a Federal court, a statute may be the act of a State legis-
lature or of Congress. If a treaty is to be made, it is the United
States alone which must make it; no State may make it or join in it.
In this sense therefore the power of the United States to make
treaties is unlimited. There remains however a field of contro-
versy of far more intricate and important significance; the field
already indicated, created when the treaty made with a sovereign
party (or individual rights maintained or secured by the treaty)
impinges on certain subjects committed to Congress, it may be, or

284 BURR—THE TREATY-MAKING POWER [April 20,

reserved to the States, as subjects of legislation. Two forces then
enter the same field. Shall either dominate wholly? Shall each
prevail in part? Is compromise possible? :

It will therefore be the main purpose of this essay to examine
inductively the data available for the solution of these two prob-
lems: the power of President and Senate, first, as opposed to Con-
gress; and, second, as opposed to the several States. Finally, when
the true relationships shall have been realized, an understanding of
the methods of enforcing rights recognized or granted by treaty
should naturally follow. But before an examination of the funda-
mental problems relating to the exercise of the treaty-making power
be attempted, one must pause for a preliminary observation, even
though it be a priori in its nature. The subject of treaties is rarely
touched upon by essayists or text-book writers without a statement
being made to the effect that a treaty may not be made to change the
nature of our government, alter its departmental structure, or
operate to deprive one department of a delegated power. A treaty
could not, it is repeatedly said, provide that hereafter a particular
State should have three senators. The reason for this position set
forth in one form or another is always substantially to the effect
that a power granted under an instrument must not be so construed
as to change the instrument, or, in a more exaggerated instance, to
destroy it. That argument—although not without the appearance
and perhaps some reality of validity—misses the mark.

On altogether simple lines the Constitution of the United States
was evolved. Certain fundamental principles were adopted and
formulated; applications of those principles, details of organization
were left to time and the nation that was to come. There was estab-.
lished the executive department, the judicial, the legislative. To this
last were committed certain subjects of legislation—all others being
reserved to the States. The power of this new government to treat
with other sovereignties remained. It was confided to the Presi-
dent and Senate acting by a two-thirds majority of those present.
Then, by express provision, the power to enter into any treaty was —
prohibited to the States. Why was not the treaty-making power
expressly inhibited from nullifying the other provisions of the

1912.] OF THE UNITED STATES. 285

Constitution? The answer is because neither its framers nor its
numerous contemporary critics ever imagined the possibility of
such an event. It is urged that they were right. A treaty-making
power is a power to make treaties. And provisions looking to the
accomplishment of an internal change in the government of one
sovereign party to a treaty, are not and could not be subjects, prop-
erly speaking, of a treaty. To the minds which framed the Consti-
tution and within the intendment of that instrument, treaties must
_ only contain provisions which in the usual and normal intercourse
of nations should properly become the subjects of treaties. It
would seem to be unnecessary, if not misleading, to seek any further
reason why a treaty may not make the President the presiding
_ officer of the Supreme Court, or deprive the State of Nevada of its
Senators. A colorable exercise of a power—and the word assumes
___ too much—is not a valid exercise of the power. There is no judi-
cial decision to such effect; but the a priori assertion may be ven-
tured, that a treaty must be a treaty within the meaning of that
word in international usage.

I

_ The first problem respecting the treaty-making power of the
United States having a wholly political character arose early in its
history. In 1794, the British treaty was signed. France was at war
with Great Britain, and the general sentimental affection of the
American people for France was conceived by many to be outraged.
The treaty was, inter alia, a treaty of commerce, and it was con-
sidered to operate unequally. A storm of protest burst forth which
reéchoed over the country in resolutions denouncing the treaty. In
a meeting held at Richmond it was declared that the treaty was
“insulting to the dignity, injurious to the interests, dangerous to the
security, and repugnant to the Constitution of the United States.”**
' The resolutions adopted by the legislature of Virginia were couched
E in more parliamentary language, but were to the same effect.
Nevertheless, on February 29th, 1796, «Washington proclaimed the
treaty as being the supreme law of the land. And on March Ist, he

lis U.S. p. 753.
PROC. AMER. PHIL. SOC., LI. 206 P, PRINTED SEPT. 10, 1912.

286 BURR—THE TREATY-MAKING POWER [April 20,

transmitted a copy thereof to Congress. The House was dominated
by the party opposed to Washington and the Federalists. John
Marshall was then a member of the House, and in his “ Life of
Washington” has summarized the positions taken.

“By the friends of the administration, it was maintained,’ he writes,
“that a treaty was a contract between two nations, which, under the consti-
tution, the President, by and with the advice and consent of the Senate, had
a right to make, and that it was made when, by and with such advice and
consent, it had received his final act. Its obligations then became complete on
the United States, and to refuse to comply with its stipulations, was to break
the treaty, and to violate the faith of the nation.

“By the opposition it was contended, that the power to make treaties, if
applicable to every object, conflicted with powers which were vested exclu-
sively in Congress. That either the treaty-making power must be limited in
its operation so as not to touch objects committed by the constitution to
Congress, or the assent and co-operation of the House of Representatives
must be required to give validity to any compact so far as it might compre-
hend those objects. A treaty, therefore, which required an appropriation of
money, or any act of Congress to carry it into effect, had not acquired its
obligatory force until the House of Representatives had exercised its powers
in the case. They were at full liberty to make or to withhold such appro-
priation, or other law, without incurring the imputation of violating any
existing obligation, or of breaking the faith of the nation.’””

A resolution passed requesting the President to lay before the House
the papers relating to the treaty.

“Tt was,’ says Marshall, “a subject for serious reflection, that in a
debate unusually elaborate, the House of Representatives had claimed a right
of interference in the formation of treaties, which, in the judgment of the ©
President, the Constitution had denied them.’

Washington’s reply is of the greatest importance and is appended in
full in the notes.*®

“Having been,” he said, “a member of the General Convention, and
knowing the principles on which the Constitution was formed, I have ever
entertained but one opinion upon this subject; and from the first establishment
of the Government to this moment, my conduct has exemplified that opinion.
That the power of making treaties is exclusively vested in the President, by
and with the advice and consent of the senate, provided two-thirds of the

* Marshall’s “Life of Washington,” 1st ed., Vol. V.. Chap. VIII. pp.
651-2. :
“Td., p. 654.

' * See note 4.

1912.] OF THE UNITED STATES. 287

senators present concur; and that every treaty so made and promulgated,
thenceforward becomes the law of the land.”

Washington further pointed out that this had been the construction
which had obtained in the State conventions ; and that the proposition
“that no treaty should be binding on the United States which was
not ratified by a law” had been explicitly rejected in the Federal
Convention.
; “A just regard to the Constitution and to the duty of my office,” he
concluded, “ forbid a compliance with your request.”
One month after the receipt of this message, the House passed an
appropriation for carrying the treaty into effect.4* Previously,
however, they had answered the President in resolutions disclaiming
the power to interfere in making treaties, but asserting their right
to determine on the expediency of carrying into effect whatever
treaty stipulations be made on subjects committed to Congress. The
language of the resolution is appended in note 5.
_ The position taken by the House in 1796, accurately summarized
‘by Marshall, has been persistently maintained. The treaty of 1815
ie with Great Britain was a commercial treaty providing also that no
tariff discrimination should obtain. The existing laws embodied
such discrimination and the Senate adopted a declaratory act in
_ which they provided that such laws should be “taken to be of no
force and effect.” The declaratory nature of this act was distasteful
to the House, and that body passed a new bill reenacting the treaty
provisions. In the course of the debate, Mr. King of Massachusetts

i “Whenever a treaty or convention does, by any of its provisions, en-
croach upon any of the enumerated powers vested in the Constitution in the
Congress of the United States, or any of the laws by them enacted in execu-_
tion of those powers, such treaty or convention, after being ratified, must
be laid before Congress, and such provisions cannot be carried into effect
without an act of Congress.”“

_ And he added as an instance a treaty which would affect “ duties on
imports, enlarging or diminishing them.” A conference committee

* Annals of Congress, 4th Congress, First Session, p. 1291.
* Annals of Congress, 14th Congress, Ist Sess., p. 538.

288 BURR—THE TREATY-MAKING POWER [April 20,

was appointed. In the report to the House of its conferees they
say:

“The Committee] are persuaded that the House of Representatives
does not assert the pretension that no treaty can be made without their
assent; nor do they contend. that in all cases legislative aid is indispensably
necessary, either to give validity to a treaty, or to carry it into execution.
On the contrary, they are believed to admit, that to some, nay many treaties,
no legislative sanction is required, no legislative aid is necessary.

“On the other hand the committee are not less satisfied that it is by no
means the intention of the Senate to assert the treaty-making power to be in
all cases independent of the legislative authority. So far from it, that they
are believed to acknowledge the necessity of legislative enactment to carry
into execution all treaties which contain stipulations requiring appropriations,
or which might bind the nation to lay taxes, raise armies to support navies,
to grant subsidies, to create States, or to cede territory; if indeed this power
exists in the government at all. In some or all of these cases, and probably in
many others, it is conceived to be admitted, that the legislative body must act,
in order to give effect and operation to a treaty; and if in any case it be
necessary, it may confidently be asserted that there is no difference in prin-
ciple between the Houses; the difference is only in the application of the
principle. For if, as has been stated, the House of Representatives contend
that their aid is only in some cases necessary, and if the Senate admit that in
some cases it is necessary, the inference is irresistible, that the only question
in each case that presents itself is, whether it be one of the cases in which
legislative provision is requisite for preserving the national faith or not.’*

And they added relative to the point in dispute:

“The Senate believe legislation unnecessary. The House regard it as
indispensable.”

The Senate conferees reported:

“Even a declaratory law... is a matter of mere expediency, adding
nothing to the effect of the treaty, and serving only to remove doubts here-
after that existed.”

Finally an amended declaratory act passed both houses of Congress.

In 1844, a proposed reciprocity treaty with Prussia was rejected

by the Senate, after a report by a committee antagonistic to Presi-
dent Tyler, in which the constitutionality of the treaty was denied.
This action of the Senate finds its explanation, it is believed, in the
extraordinary political conditions created by the accession to the

* Tbid., pp. 1019-20.
*® Tbid., p. 160.

1912.] OF THE UNITED STATES. 289

presidency of the Vice-President, a southern Democrat, after the
death of President Harrison, a Whig.*°

Again in 1868, the House of Representatives raised the question
as to its duties and rights respecting an appropriation for the pay-
ment to Russia of the purchase price of Alaska under the treaty of
1867. At first the House, in the Bill passed by that body, recited
the alleged necessity of assent by them, and then assumed to give
such assent. The Senate rejected the Bill and threw it into con-
ference. One of the House conferees in explanation of his report
said:

“ The Committee on the part of the Senate stated freely and frankly that
they could in no event consent to the preamble and that the Senate would not
consent, and that they held that the House was bound to carry out the stipu-
_ lations of all treaties, and that when a treaty provided for the payment of
money for any purpose, that such stipulation created a debt, and that the
House has no discretion in relation to the payment of the same, a doctrine of
course utterly at variance with the law and with the principles asserted in the
preamble as it passed the House; and it is manifestly impossible to reconcile
opinions so utterly at variance upon so important a question. A majority of
the Committee on the part of the House could in no event consent to any

such doctrine so utterly subversive of the rights and constitutional preroga-
tives of the House.’”™

_ The Bill was finally passed containing the following recital:

“Whereas said stipulations cannot be carried into full force and effect
except by legislation to which the consent of both Houses of Congress is
necessary.””

In 1887, a proposed extension of the Hawaiian treaty had been
negotiated, and ratified by the Senate. The original treaty of 1875
had provided that it should not become effective “until a law to
carry it into operation shall have been passed by the Congress of the
United States of America.” The question of the prerogatives of the
House in the matter was raised in that body and referred to the
judiciary committee. In its report that committee said:

“The President, by and with the advice and consent of the Senate, can-
not negotiate a treaty which shall be binding on the United States, whereby

™See Senator Cullom’s analysis: Congressional Record, Vol. 35, Part
II., p. 1081.

* Congressional Globe, 40th Cong., 2nd Sess. Part V., p. 4303.

= Congressional Globe, 40th Cong., 2nd Sess., Part V., p. 4394.

290 BURR—THE TREATY-MAKING POWER [April 20,

duties on imports are to be regulated, either by imposing or remitting, in-
creasing or decreasing them, without the sanction of an act of Congress; and
that the extension of the term for the operation of the original treaty or
convention with the government of the Hawaiian Islands, proposed by the
supplementary convention of December 6, 1884, will not be binding on the
United States without like sanction, which was provided for in the original
treaty and convention, and was given by act of Congress.’”™

The report does not seem to have been adopted by the House, and
no Act of Congress extending the provisions of the treaty of 1875
was passed.**

In 1897, the tariff act known as the Dingley Act was passed. By
the third section thereof the act purported to “authorize” the
president to negotiate commercial reciprocity agreements on certain
articles therein enumerated, and provided that he might suspend
after the making of such agreement the operation of the tariff act.
The fourth section purported to prescribe the method and effect of
such agreements. It provided that whenever the president “ by and
with the advice and consent of the Senate ... , shall enter into
commercial treaty or treaties” concerning duties “and when any
such treaty shall have been duly ratified by the Senate and approved
by Congress, and proper proclamation made accordingly, then and
thereafter the duties” shall be accordingly collected.

In 1902, Senator Cullom reviewed in the Senate the history of
the exercise of the treaty-making power His speech is marked by
its accurate fulness and persuasive logic, and thus concludes:

“The authority of the House [of Representatives] in reference to
treaties has been argued and discussed for more than a century, and has
never been settled in Congress and perhaps never will be. The House,
each time the question was considered, insisted upon its powers, but never-
theless has never declined to make an appropriation to carry out the stipula-
tion of a treaty, and I contend that it was bound to do this, at least as much
as Congress can be bound to do anything when the faith of the nation had
been pledged. And this appears to me to be the only case in which any

action by the House is necessary, unless the treaty itself stipulates, expressly —
or by implication, for such Congressional action.””

°° Congressional Record, Vol. 18, Part III., p. 2721. Language given —
Vol. 35, Part IL, -p; 1182.

“U.S. Stat. at Large, Vol. 30, pp. 203-4.

'® Congressional Record, Vol. 35, Part II., p. 1083.

1912.] OF THE UNITED STATES. 291

The House responded with the following resolution:

“ Whereas, it is seriously claimed that under the treaty-making power of
the government, and without any action whatever on the part of the House
of Representatives, or by Congress, reciprocal trade agreements may be
negotiated with foreign governments that will of their own force operate to
supplant, change, increase, or entirely abrogate duties on imports collected
under laws enacted by Congress and approved by the executive for the pur-
pose of raising revenue to maintain the government: Now, therefore, be it

“Resolved by the House of Representatives that the Committee on Ways
and Means be directed to fully investigate the question of whether or not
_ the President, by and with the advice and consent of the Senate, and indepen-
dent of any action on the part of the House of Representatives, can negotiate
treaties with foreign governments for the purpose of raising revenue are
modified or repealed, and report the result of such investigation to the
House.”” .

This resolution was allowed to die in Committee.

In 1902, a treaty was signed with Cuba under which a prefer-
ential duty on imports into the United States was granted. The
treaty provided that it should “not take effect until the same shall
have been approved by Congress.”** An act was then passed by
Congress entitled “‘ An Act to carry into effect a Convention between
_ the United States and the Republic of Cuba,” which concluded with
the following proviso: ;

“That nothing herein contained shall be held or construed as an admis-
sion on the part of the House of Representatives, that customs duties can be
changed otherwise, than by an act of Congress, originating in said House.”™

In 1911, a Canadian reciprocity tariff was negotiated, and it is
significant that on the part of the United States, no treaty was
signed, but that an act of Congress was passed of which the third
section is as follows:

_ [Be it enacted] “ That for the purpose of further readjusting the duties
on importations into the United States of article or articles the growth,
product, or manufacture of the Dominion of Canada, and of the exportation
into the Dominion of Canada of article or articles the growth, product, or
manufacture of the United States, the President of the United States is

authorized and requested to negotiate trade agreements with the Dominion of
Canada wherein mutual concessions are made looking toward freer trade

* Congressional Record, Vol. 35, Part II., p. 1178.
* Compilation of Treaties in force, 1904, p. 225.
® 33 Stat. at Large, 3.

292 BURR—THE TREATY-MAKING POWER [April 20,

relations and the further reciprocal expansion of trade and commerce:
Provided, however, that said trade agreements before becoming operative
shall be submitted to the Congress of the United States for ratification or
rejection.”

The Presidents of the United States have uniformly supported
the view of Washington. In addition to maintaining this attitude
in the instances above set forth, we may cite the following examples.
In 1835, President Jackson vetoed a bill for the compromise of
claims allowed by the commissioners under a treaty. He said:

“The Act is, in my judgment, inconsistent with the division of powers in
the Constitution of the United States, as it is obviously founded on the
assumption that an act of Congress can give power to the Executive or to the
head of one of the Departments to negotiate with a foreign government.”
In 1877, President Grant vetoed congressional resolutions directing
the Secretary of State to convey to certain republics the good wishes
of Congress on the ground that in the executive alone was vested
the right to conduct all correspandence with other sovereignties.°

It would seem to be idle to enter into a long discussion of the
constitutional problem presented if the House of Representatives
should refuse to pass an appropriation necessary to carry a treaty
into effect. It is a problem political and national in its character and
not one for judicial arbitrament or determination. The question
presented, however, is simple enough and readily yields to analysis. —
A treaty agreeing to pay money is none the less a treaty, whether or
no the money be paid. It constitutes an executory contract and
raises an obligation on the part of the United States to perform its
contract. Congress could repudiate this obligation, just as a corpo-
ration by its board of directors could refuse to honor its duly
executed obligation. But the power to make a valid treaty would be
untouched by such repudiation: the United States would remain
bound in international law. Congress, however, has never yet in its
history refused to recognize the obligation resting upon it, and it is
unlikely it ever will. If it should, the offended nation would have —
whatever redress would be open to it under the principles of inter-

national law. The courts of the United States could not determine

such a controversy of purely national and political import.

* Richardson’s Messages of the Presidents, Vol. III., p. 146.
°Td., Vol. VII., pp. 430-2.

1912.] . OF THE UNITED STATES. 293

So far as the question is raised by the quotations above made as
to the power of the President and Senate to enter into commercial
treaties and so affect the tariff laws, it will be seen that this question
is one which may involve individual rights and so become the subject
of judicial determination. Its further consideration will therefore
be postponed till the inductive study of the decisions of the Supreme
Court of the United States be had.™

The acquisition or cession of territory, however, by the United
States, involves problems of wholly national and political import.
The power of the United States to acquire territory by the exercise
of the treaty-making power is firmly established and has been exer-
cised ina series of treaties. In 1803 Louisiana was ceded by France;
in 1819 Florida by Spain; in 1848 California and New Mexico by
Mexico; in 1867 Alaska by Russia; and in 1899 Porto Rico and the
Philippine Islands by Spain.

The exercise of the treaty-making power relative to the acquisi-
tion of Florida came before the Supreme Court in American Insur-
ance Company vs. Canter, and was judicially sanctioned.

“The Constitution,” said Mr. Chief Justice Marshall, in delivering the
opinion of the Court, “confers absolutely on the government of the Union,
the powers of making war, and of making treaties; consequently, that gov-
ernment possesses the power of acquiring territory, either by conquest or by
treaty.”

A long series of cases recognizes without question and discusses
this power to acquire territory by treaty. The extent and operation
of this power receives the most thorough criticism in the Insular
Cases.** In those cases there was not directly in issue the extent

_ of the treaty-making power with reference to the acquisition of

* Infra, 100-105.

"1 Peters, 511 (1828).

“1 Peters, p. 542. -

“These are: De Lima vs. Bidwell, 182 U. S., 1 (1901), Downes ws. Bid-
well, 182 U. S., 244 (1901). Directly connected with these cases, but estab-
lishing no additional principles are: Dooley vs. United States, 182 U. S., 222
(1901), Dooley vs. United States, 183 U. S., 151 (1901), Fourteen Diamond
Rings, 183 U. S., 176 (1901). More recently the same principles have been
reénunciated in Lincoln vs. United States, 197 U. S., 419 (1905), 202 U. S.,
484 (1906), Pearcy vs. Stranahan, 205 U. S., 257 (1907), United States vs.
_ Heinszen, 206 U. S., 370 (1907).

294 BURR—THE TREATY-MAKING POWER [April 20,

territory or otherwise. None of the six judges who directly ex-
pressed themselves even questioned the manner of the exercise of
the treaty-making power in the cases at bar. There was no possible
occasion for such criticism. By the treaty the determination of the
‘civil rights and political status of the inhabitants of the islands was
left to Congress, and Congress by a series of acts appropriated
money, ratified the treaty, and proceeded to provide for the govern-
ment of the acquired territory. By reason, however, of the com-
“ments of the members of the Court, these cases will repay careful
and detailed examination. One must beware of seizing upon the
remarks of any one of the judges without the most careful reference
to its connection with his course of argument and to the issue pre-
sented. This is always a wise caution; it is here a vital one; for,
in these cases, four judges agreed in the main, one with the other;
four others, while agreeing one with the other, absolutely repudiated
the reasonings and conclusions of the first four; while the ninth
judge, by alternately voting with each group, determined the decision
in both cases. The facts were simple and are as follows:

On April 11th, 1899, the treaty ceding Porto Rico to the United
States was ratified and proclaimed. On April 12th, 1900, the Foraker
Act was passed, creating civil government for the Island, and pro-
viding for the collection of tariff duties on imports therefrom into
the United States. In DeLima vs. Bidwell the question was as to
the application of the existing United States tariff to imports be-
tween the date of the ratification of the treaty and the time when
the Foraker Act took effect. In Downes ws. Bidwell the question
was as to the constitutionality of the Foraker Act, which admittedly
did not comply with the provision of the Constitution that “all duties,
imports, and excises shall be uniform throughout the United States.”
The Chief Justice and Justices Harlan, Brewer, and Peckham were ©
of the opinion that when Porto Rico was ceded to the United States,
and, by the terms of the treaty and the action of Congress, a civil |
government was therein created, the provisions of the Constitution —
at once applied ; that the island could not be termed foreign territory
after the ratification of the treaty; that consequently the existing
tariff law attempted to be enforced in DeLima vs. Bidwell had no

1912.] OF THE UNITED STATES. 295

application; and that, once Porto Rico became organized territory
of the United States, the provisions of the Constitution including
the restriction imposing uniformity of taxation, applied, and the
Foraker Act, attempted to be enforced in Downes vs. Bidwell, was
unconstitutional and void. To this Justices McKenna, Shiras,
White, and Gray rejoined that “ Porto Rico occupied a relation to
the United States between that of being a foreign country absolutely
and of being domestic territory absolutely ” ; that Congress was only
empowered to act in any case subject to the applicable limitations
of the Constitution; that Porto Rico had not been incorporated into
the United States so as to bring it within the provisions of Article
I., Section 9, of the Constitution; that therefore Porto Rico could
not become domestic territory without the action of Congress: and
consequently that the existing tariff act applied in DeLima vs. Bid-
well and the Foraker Act in Downes vs. Bidwell. Mr. Justice
Brown was of the opinion, however, that a country could not be
domestic for one purpose and foreign for another; and that Porto
Rico was wholly domestic territory. He thought, however, that
Article I., Section 9, had no application to the islands which could
not be regarded as part of the United States within the meaning
_ of that clause, but should rather be spoken of as “a territory appur-
tenant and belonging to the United States.” His vote therefore de-
termined the decisions in the two cases alternately in favor of and
against the two groups consisting each of four justices. It is sub-
mitted that the position of Mr. Justice Brown is in substance with
the four who prevailed in Downes vs. Bidwell. In the first place,
the effect of the decisions is that Congress has the power henceforth
to legislate for territory acquired by treaty, without being subject
to customary restrictions on such legislation provided in the con-
stitution. In the second place, while the language of Mr. Justice
: Brown to the effect that territory acquired by treaty forthwith
z becomes domestic and cannot for any purposes be regarded as
x foreign, may seem to be flatly opposed to the position of Mr. Justice
McKenna and Mr. Justice White, as set forth in their respective
a opinions; yet when he grants (as in Downes vs. Bidwell) that
though “domestic territory,” the Constitution is not applicable as

Segoe
PF,

nee Ee elke es

296 BURR—THE TREATY-MAKING POWER [April 20,

a whole, the difference is seen to be verbal rather than substantial.
Indeed, Mr. Justice McKenna and those who concurred with him,
might, without departure from the principles enunciated by him,
have agreed in the reversal in DeLima vs. Bidwell, basing their
action on the fact that the status of Porto Rico was not that of
foreign territory within the meaning of the existing tariff act. An
analysis shows that the decisions in Fleming vs. Page® and in
Cross vs. Harrison ®* were the influential determining cases. Mr.
Justice Brown concludes his prevailing opinion in Downes vs. Bid-
well with this paragraph:

“Patriotic and intelligent men may differ as to the desirableness of this
or that acquisition, but this is solely a political question. We can only con-
sider this aspect of the case so far as to say that no construction of the Con-
stitution should be adopted which would prevent Congress from considering
each case upon its merits, unless the language of the instrument imperatively
demands it. A false step at this time might be fatal to the development of
what Chief-Justice Marshall called the American Empire. Choice in some
cases, the natural gravitation of small bodies toward large ones in others,
the result of a successful war in still others, may bring about conditions
which would render the annexation of distant possessions desirable. If those
possessions are inhabited by alien races, differing from us in religion, cus-
toms, laws, methods of taxation and modes of thought, the administration
of government and justice, according to Anglo-Saxon principles may for a
time be impossible; and the question at once arises whether large concessions
ought not to be made, that, ultimately, our own theories may be carried out,
and the blessings of a free government under the Constitution extended to—
them. We decline to hold that there is any thing in the Constitution to for-
bid such action.””

Nothing could illustrate better than the above quotation the essen-
tially political and economic nature of the problems presented.
Reading the lengthy opinions in these cases (the reports of which
cover 391 pages), one appreciates the broad character of the out-—
look of the Justices who decided them. But it is as statesmen
truly learned in the law that they write, handling with high sin-
cerity and high seriousness the history of constitutional law to illus-
trate, support, and make to prevail, their political and economic
convictions. It could not be, should not be, otherwise. But the fact — :

”° 9 How., 603 (1850).

* 16 How., 164 (1853).
"182 U. S., pp. 286-7.

1912.] OF THE UNITED STATES. 297

must be recognized. We are not in a world where legal precedent,
formal logic, and academic considerations control.

We recur to the bearings of these cases upon the subject of our
essay. One point is determined: that the treaty-making power can
be exercised to acquire territory.°* The decision goes no further
with respect to the interpretation of the treaty-making power. But
Mr. Justice White in his concurring opinion in Downes vs. Bidwell
does express himself as follows:

“Tt seems to me impossible to conceive that the treaty-making power by
a mere cession can incorporate an alien people into the United States without
the express or implied approval of Congress. . . . If the treaty-making power
can absolutely, without the consent of Congress, incorporate territory, and if
that power may not insert conditions against incorporation, it must follow
that the treaty-making power is endowed by the Constitution with the most
unlimited right, susceptible of destroying every other provision of the Con-
stitution; that is, it may wreck our institutions.””

It should be observed of these remarks: first, that in the treaty
under discussion it was expressly provided that Congress should
determine the civil rights and political status of the inhabitants and
that consequently the situation discussed by Mr. Justice White was
not presented in the case before him; second, that four justices
disagreed positively with this view,’ one, Mr. Justice Brown, im-
pliedly,"* and one, Mr. Justice Gray, did not express himself. It
should be further pointed out that in using the word “ incorporate”
Mr. Justice White used it in a special sense: that is, as equivalent

“In Wilson vs. Shaw, 204 U. S., 24 (1907), it is said: “It is too late in
the history of the United States to question the right of acquiring territory
_ by treaty,” p. 32.

@ 182 U. S., pp. 312-3.

“It might perhaps be superfically thought that since in the case at bar
the ratification by Congress of the action of the treaty-making power was
complete, the four dissenting judges could not necessarily be said to have
differed with Mr. Justice White on the point in question. But since they
admitted that the treaty was valid, and held that on its ratification by the
Senate, the Constitution, and especially Art. 1, Sec. 8, was ipso facto extended
to Porto Rico, it follows that this position was irreconcilably opposed to the
views of Mr. Justice White.

*%Such is the implication from the position of Mr. Justice Brown in
DeLima vs. Bidwell, where he held that Porto Rico became by the treaty
domestic territory.

298 BURR—THE TREATY-MAKING POWER [April 20,

to creating the territory acquired such part of the United States
that all the provisions of the Constitution became ipso facto appli-
cable. The right to acquire the territory was assumed: Mr.
Justice White maintained that it was for Congress to determine its
status and that of its inhabitants when so acquired, and that the
treaty-making power had no such power.

It is submitted that too much emphasis should not be given to
the language of Mr. Justice White. The circumstances under which
he wrote do not require it—indeed, they rather militate against the
binding force of his words. His argument that the exercise of the
power “ may wreck our institutions,” simply states his political pref-
erence that a majority of each House of Congress shall have this
power rather than the President and two-thirds of the Senate.
There is, however, this forceful consideration back of Mr. Justice
White’s words, that it is not the function of the treaty-making
power to legislate concerning the internal workings of government;
and if “incorporation” were pushed to its fullest meaning, it might
well be that the treaty-making power would exceed its functional
offices if by the language of a treaty, it attempted, propriore
vigore, to create a State. Certainly, if the treaty-making power
should covenant that a State shall forthwith be carved out of a new
territory acquired by treaty, such undertaking would have the force,
neither more nor less, of a covenant to pay money. The contract
might or might not be performed by Congress. The history of the
exercise of the treaty-making power shows, however, as Mr. Justice
White points out, that it has always been solicitous to reserve for
the subsequent decision and action of Congress any and all ques-
tions of internal governmental legislation. The exigencies of party
government and a proper regard for the dignity of the nation, would
seem to unite in preventing the problem discussed from ever arising
in the actual future history of the United States.

In one form, however, these very exigencies of property gov-
ernment have manifested themselves and created a precedent with
respect to the acquisition of territory by the United States. When
the question of the annexation of Texas was a subject of violent
political controversy, a treaty was signed on April 12th, 1844, pro- —

1912.] OF THE UNITED STATES. 299

viding for its annexation. In the Senate were many irreconcilable
opponents of the extension of slavery to which they believed this
treaty would conduce, and on June 8th, it was rejected by a vote of
35 to 16.% After the presidential election favorable to annexation,
a joint resolution was introduced, which, after a long and bitter de-
bate, passed in both houses of Congress by a narrow majority.**
Almost every possible view of the constitutional problems involved
were taken by members of Congress in debate: it was said that a
treaty was equivalent to a declaration of war on Mexico and uncon-
stitutional, and that the joint resolution lacked any semblance of con-
stitutional sanction, being really a negotiation with a foreign nation.
The truth was and is, that annexation was deemed by the pro-
slavery party, to be a vitally necessary measure, and they accom-
plished it in the only way they could, lacking as they did a two-
thirds majority in the Senate, where the vote they mustered was 27
to 25.** Even this majority was obtained, as Dr. von Holst has con-
clusively shown, by attaching an amendment to the joint resolution
authorizing the President to proceed by treaty, accompanied by
representations that the President would adopt this alternative.
But rapidly developing political conditions necessitated haste, and
the promises on which a majority of senatorial votes had been
secured, were disregarded.”

This precedent was followed in the annexation of Hawaii.
Numerous treaties had been negotiated which had failed of ratifica-
tion, and finally a joint resolution, reciting the assent of Hawaii by
a treaty signed by both parties, but not ratified by the Senate, was
passed by both Houses of Congress. Precisely two-thirds of the
Senators present voted for the resolution but from the debates it
would appear that a ratification of the treaty by the Senate could
not have been secured.** It may therefore be accepted as politically

™ Congressional Globe, Vol. 12, p. 608.

*Tbid., Vol. 14, p. 362 in Senate, p. 372 in House.

™ See note 6.

*®“ Constitutional History of the United States,” 1826-1896, Chap. VII.;

1846-1850, Chap. III.
™ Congressional Record, Vol. 31, Part VII. Vote in Senate taken July

6, 1898, p. 6712.

300 BURR—THE TREATY-MAKING POWER [April 20,

determined constitutional law that acquisition of territory may be
secured by act of Congress as well as by treaty. And in the case
of Hawaii vs. Mankichi™ the method adopted in the acquisition of
Hawaii received express recognition and implied sanction by the
Supreme Court. ‘“ The Treaty,” said Mr. Justice Harlan, “ was not
formally ratified, but its object was accomplished by the passage of
the Joint Resolution of July 7, 1898.’’®

The right of the treaty-making power to cede territory of the
United States has been the subject of academic discussion, and in a
few instances of judicial dicta. In Fort Leavenworth R. R. Co. vs.
Lowe,”® Mr. Justice Field, delivering the opinion of the Court,
said as follows:

“The jurisdiction of the United States extends over all the territory
within the States, and, therefore, their authority must be obtained, as well as
that of the State within which the teritory is situated, before any cession of
sovereignty or political jurisdiction can be made to a foreign country. And
so when questions arose as to the northeastern boundary, in Maine, between
Great Britain and the United States, and negotiations were in progress for a
treaty to settle the boundary, it was deemed necessary on the part of our
government to secure the co-operation and concurrence of Maine, so far as
such settlement might involve a cession of her sovereignty and jurisdiction
as well as title to territory claimed by her, and of Massachusetts, so far as
it might involve a cession of title to lands held by her.”™
The point at issue in the case was whether the legislature of the
State might cede its jurisdiction to the United States, and the opin-
ion of the Court is to the effect that the right to cede to the general
government was governed by wholly different considerations from
the right to cede, if any existed, to a foreign nation. In Geofroy
vs. Riggs,** the Court took occasion to remark:

“The treaty-making power, as expressed in the Constitution, is in terms
unlimited except by those restraints which are found in that instrument
against the action of the government or of its departments, and those arising
from the nature of the government itself and of that of the States. It would
not be contended that it extends so far as to authorize what the Constitution
forbids, or a change in the character of the government or in that of one of
the Stats, or a cession of any portion of the territory of the latter, without
its consent.””

™ 1090 U. S., 197 (1903). 114 U. S., pp. 540-1.
100 U.S 8. a8. *t 133 U. S., 258 (1890).
114 U. S., 525 (188s). "733 -U. 3S." p. aoe

1912] OF THE UNITED STATES. 301

In Downes vs. Bidwell,** which case we have already fully con-
sidered, Mr. Justice White reviewed at considerable length the argu-
ment that territory might be ceded by the treaty-making power.
_ He showed that Jefferson absolutely denied this right, and con-
eluded:
“True, from the exigency of a calamitous war or the necessity of a
a settlement of boundaries, it may be that citizens of the United States may be
_ €xpatriated by the action of the treaty-making power, impliedly or expressly
* ratified by Congress. But the arising of these particular conditions cannot
_ justify the general proposition that territory which is an integral part of the
e- United States may, as a mere act of sale, be disposed of.”™
This question of the right of the treaty-making power to cede
territory is wholly a political question, and when, if ever, it arises
_ for determination, it will necessarily be determined upon wholly
_ political considerations. If it be found necessary or advisable for
the United States government to cede territory, the manner of the
_ ceding will be immaterial. Whatever the National government does
as a government will, it is apprehended, be recognized by the
Supreme Court as a political act, and as a thing accomplished.
After the absolute prohibition contained in the first clause of
Article I., Section 10, of the Constitution to the effect that no State
shall enter into any treaty, the second clause forbids a State, inter
alia, from entering into any agreement or compact with another
State, or with a foreign power, without the consent of Congress.
The meaning of this second clause is the subject of some academic
interest. The difficulty is that an “agreement or compact with a
foreign power ” is a precise and accurate definition of a treaty, and
the making of any treaty, with or without the consent of Congress,
is forbidden to any State. In the absence of any judicial interpreta-
tion of this clause, the following explanation is submitted. There
are two clauses on the subject because the Articles of Confederation
had two, and the applicable text therein contained was the basis of
_ the draft of the Constitution. There were two clauses in the Articles
of Confederation because the first was concerned with treaties with
_ foreign powers by the United States, and the second was concerned
#182 U. S., 244 (1901).
“182 U. S., p. 317.
PROC. AMER. PHIL. SOC., LI. 206 Q, PRINTED SEPT. I0, 1912.

302 BURR—THE TREATY-MAKING POWER [April 20,

with treaties among the States. When the committee of detail
drafted their report, they retained the second clause because they —
desired to regulate adjustments between States. Accordingly, they
used the words “agreement or compact’’ in lieu of “treaty, con-
federation, or alliance’’ because these sovereign acts were by the —
first clause absolutely denied to the States. The committee left in
existence the power of the States to make arrangements and adjust-
ments having no political significance, but, to guard against any
abuse, required the consent of Congress. It was not unnatural that
some draftsman added to the words ‘with another State,” the
phrase “or with a foreign power.” They remain, however,
redundant.

The decisions upon the force and effect of this second clause are
strictly not relevant to the subject of this essay since they involve
only the mutual relations of the States. In the thought, however, —
that they may serve to give a more complete understanding of the —
constitutional clauses under discussion, their significance may be.
briefly indicated. In Green vs. Biddle,** the validity of a compact
made between Virginia and Kentucky came before the Supreme
Court, and was sustained on the ground that it had been recognized
by Congress. In Poole vs. Fleeger,*® a compact between North
Carolina and Tennessee was likewise sustained. In the more recent
case of Virginia vs. Tennessee*’ the second clause of Article L,
Section 10, of the Constitution, so far as it relates to agreements or
compacts between States, receives an exhaustive examination and
ees It was held that the consent of Congress would be
essential, “according as the establishment of the boundary line
may lead or not to the increase of the political power or influence
of the States affected, and thus encroach or not upon the full and
free exercise of Federal authority.’’** In the case before the court,
the consent of Congress was said to have been by implied ratifica-
tion. In Wharton vs. Wise,®® and in Stearns vs. Minnesota®® the
principles of construction enunciated in Virginia vs. Tennessee
were again carefully examined, and applied.

*° 8 Wheat., 1 (1823). “148 U.S. p sae.

11 Peters, 185 (1837). 153 U. S., 155 (1804).
“148 U. S., 503 (1803). 179 U. S., 223 (1900).

1912.] OF THE UNITED STATES. 303

The question of the applicability to the treaty-making power of
the first eight amendments to the Constitution (appended hereto as
note 7) is one which should in this connection be considered. An
examination of the Insular Cases will show that the question of
the applicability of these amendments and of the other constitu-
tional restrictions on State action, to the new possessions of the
United States, revealed considerable divergence in opinion among
the justices who decided these cases. Before these decisions it had
been held that the amendments (the sixth and seventh were particu-
larly in controversy) controlled the action of the United States in
the District of Columbia, in the Indian Territory, and in the Terri-
tories generally.** After, however, Porto Rico, Hawaii, and the
Philippines had been acquired, although the prior cases have been
approved, a disposition has been manifested to apply a different
principle toward determining the applicability of the constitutional
restraints on Federal action. In Hawaii vs. Mankichi** the appellee
had been convicted of manslaughter on an indictment not found
by a grand jury, and by a vote of a petit jury of 9 to 3. This had
been the usual course of procedure in Hawaii prior to annexation.
The joint resolution of Congress had provided:

“The municipal legislation of the Hawaiian Islands, not enacted for the
fulfillment of the treaties so extinguished, and not inconsistent with this
joint resolution nor contrary to the Constitution of the United States nor to
any existing treaty of the United States, shall remain in force until the Con-
gress of the United States shall otherwise determine.”

It was held that this resolution failed to state the intention of Con-
gress, which could not have been, said the court, “to interfere with
the existing practice when such interference would result in im-
perilling the peace and good order of the islands.”** Mr. Justice
White and Mr. Justice McKenna added their conviction that the
constitutional provisions could not apply im toto upon annexation,
but that the language of the congressional resolution “clearly

“Callan vs. Wilson, 127 U. S., 540 (1888), Cook vs. United States, 138
U. S., 157 (1891), American Publishing Company vs. Fisher, 166 U. S., 464
(1897), Thompson vs. Utah, 170 U. S., 343 (1808).

“190 U. S., 197 (1903).
“1090 U. S., p. 214.

304 BURR—THE TREATY-MAKING POWER [April 20,

referred only to the provisions of the Constitution which were
applicable and not to those which were inapplicable.”** The Chief
Justice and Justices Harlan, Brewer, and Peckham dissented. Said
Mr. Justice Harlan in a learned and earnest opinion:

[The principle underlying the decision of the majority of the Court]
“would place Congress above the Constitution. It would mean that the
benefit of the constitutional provisions designed for the protection of
life and liberty may be claimed by some of the people subject to
the authority and jurisdiction of the United States, but cannot be claimed
by others equally subject to its authority and jurisdiction. . . . It would
mean that, if the principles now announced should become firmly estab-
lished, the time may not be far distant when, under the exactions of
trade and commerce, and to gratify an ambition to become the dominant
political power in all the earth, the United States will acquire territories in
every direction, which are inhabited by human beings, over which territories,
to be called ‘dependencies’ or ‘outlying possessions,’ we will exercise abso-
lute dominion, and whose inhabitants will be regarded as ‘subjects’ or
‘dependent peoples,’ to be controlled as Congress may see fit, not as the Con-
stitution requires, nor as the people governed may wish. Thus will be en-
grafted upon our republican institutions, controlled by the supreme law of
a written constitution, a colonial system entirely foreign to the genius of our
Government and abhorrent to the principles that underlie and pervade the
Constitution. It will then come about that we will have two governments
over the peoples subject to the jurisdiction of the United States, one exist-
ing under a written Constitution, creating a government with authority to
exercise only powers expressly granted and such as are necessary and appro-
priate to carry into effect those so granted; the other, existing outside of the
written Constitution, in virtue of an unwritten law to be declared from time _
to time by Congress, which is itself only a creature of that instrument.”” —

In Dorr vs. United States,®® the decision in Hawaii vs. Mankichi is
approved and followed.** The court lays down the following prin-
ciple as controlling:

“Until Congress shall see fit to incorporate territory ceded by treaty into
the United States, we regard it as settled by that decision that the territory
is to be governed under the power existing in Congress to make laws for such
territories and subject to such constitutional restrictions upon the powers of ;
that body as are applicable to the situation.”

“too UU. Sop. mee.
* 190 U. S., pp. 238-40.
* 195 U. S., 138 (1904).
™ See also the case of Rassmussen vs. United States, 197 U. S.,
(1905), wherein the constitutional provisions were declared to be applica
to Alaska.
* 195 U. S., p. 143.

1912.] OF THE UNITED STATES. 305

These decisions certainly find their sanction in political rather than
in historical considerations. The question of the government of
essentially colonial territory is a political not a legal question. The
Supreme Court of the United States have therefore declared Con-
gress to be the power which must judge and determine the appli-
cability of constitutional provisions. Wise such action may be
politically ; but logically analyzed, to do this is to put Congress, the
creature of the Constitution, above the Constitution.

The relation between the foregoing decisions and the applica-
bility of the first eight amendments to the treaty-making power is
not immediate. Yet, it will be readily concluded that if territory
may be acquired by the treaty-making power without subjecting the
government of that territory to constitutional provisions except by
the action of Congress, such provisions can hardly be said to restrain
the treaty-making power. The case of In re Ross” is of interest to
us here. Therein, an English subject serving as a seaman on an
American vessels, was tried for murder before a consular court
sitting in Japan under the provisions of a treaty with that country,
and was convicted. The trial was not in accordance with consti-
tutional requirements. The Supreme Court held that since he was
an American seaman, his nationality was immaterial, and that the
Constitution was not ordained for countries outside the United
States and could have no operation in another country. Said the
Court:

“The treaty-making power vested in our government extends to all
proper subjects of negotiation with foreign governments. It can, equally
with any of the former or present governments of Europe, make treaties
providing for the exercise of judicial authority in other countries by its
officers appointed to reside therein. . . .

“The framers of the Constitution, who were fully aware of the neces-
sity of having judicial authority exercised by our Consuls in non-christian
countries, if commercial intercourse was to be had with their people, never
could have supposed that all the guarantees in the administration of the law
upon criminals at home were to be transferred to such consular establish-

ments, and applied before an American who had committed a felony there
could be accused and tried.”™

* 140 U. S., 453 (18901).
™ 140 U. S., pp. 463-5.

306 BURR—THE TREATY-MAKING POWER [April 20,

It is also interesting to note in this connection that rights to admin-
ister the estates of aliens dying here, have been by certain treaties
granted by the United States to foreign consuls. No cases arising
from these treaty provisions have reached the Federal courts, but
they have been the subject of State recognition.*™

Having regard to the decisions following the “ Insular Cases,” and
bearing in mind the essential political and national character of the
problems involved, it may be fairly concluded that when the ques-
tion arises whether treaty provisions are subject to the constitutional
restrictions on Federal action contained in the body of the Consti-
tution and in the first eight amendments, the Supreme Court will
judge of each case according to what it has called “the applica-
bility’? of the provision in question. And it may not be amiss to
add that political considerations will be as potent as legal in deter-
mining that “ applicability.”

II.

The first question presented, as we have seen, when one examines
into the fundamental nature of the treaty-making power is: When a
treaty deals with a subject upon which Congress is authorized to
legislate, is such treaty valid? or perhaps we should rather ask,
what is its status?

There is an anomaly in the treaty-making power of the United
States created by the Constitution which we must at this juncture
consider. A treaty is, primarily, and with most nations solely, a_
contract with another sovereignty. In the United States, however,
by the provisions of the Constitution it may have the force of a legis- |
lative enactment. In Article VI. it is provided: .

“This Constitution, and the laws of the United States which shall be ©

made in pursuance thereof, and all treaties made, or which shall be made
under the authority of the United States, shall be the supreme law of the —

™ On this point, see Matter of Lombrasciano, 77 N. Y. Supp. 1040

(1902), Matter of Fattosini, 67 N. Y. Supp., 1119 (1900), Jn re Wyman, 191 o
Mass., 276 (1906), Roca vs. Thompson, 157 Cal., 552 (1910). An appeal —
from this last case is pending in the Supreme Court of the United States. It
would seem that it should be reversed, unless the interpretation given to the —
Italian treaty requires a different decision. oe

1912.] OF THE UNITED STATES. 307

land; and the judges in every State shall be bound thereby, anything in
the Constitution or laws of any State to the contrary notwithstanding.”

This language is unique in the efficacy it would seem to give to
provisions in treaties made under the authority of the United States,
and its bearing is important on the question under discussion:
namely, the status of treaties made respecting subjects committed
to Congress for legislation. It is apparent that the courts are con-
templated as the forum wherein the treaties are to be recognized
as the supreme law of the land. It is apparent likewise that it is
individual rights secured by treaties which the courts are to be
open to enforce. With political questions arising under treaties, the
judiciary could have nothing to do. Thus, this clause of the Con-
stitution is not applicable to the problem of the necessity of con-
gressional action when an appropriation is essential to make pay-
ment for territory purchased under treaty. The judiciary could
not assume to force action by Congress, nor to usurp its functions.
Neither is the clause applicable with respect to the acquisition or
cession of territory. These national questions are political, and are
not properly for the judiciary.

We turn therefore away from the examination of these solely
political problems to that of individual rights—though political con-
siderations will still intrude themselves. The true line of approach
is through the proper interpretation and application of Article VI.
of the Constitution. Professor Mikell is very clear and precise in
his view of the meaning and effect of this article.

“So far,” he says, “as the domestic or intraterritorial effect of the exer-
cise of any of the powers committed by the Constitution to Congress are
i= concerned, Congress alone has any power in the premises. But Congress has
‘ no power to treat with foreign nations, hence when any of these powers
vested in Congress are to be exercised in agreement with a foreign power,
the agreement with such foreign nation must first be completed by the treaty-
making power, but this agreement, though it is a treaty in the meaning of
that word as used in international law, is not a treaty in the sense intended
by the Constitution when it says a treaty is the supreme law of the land.
: = To be that it must be sanctioned by an act of Congress.”

{ “The Extent of the Treaty-making Power of the President and
; Senate of the United States,” by William E. Mikell, U. of P. Law Review
and American Law Register, Vol. 57, p. 456.

308 BURR—THE TREATY-MAKING POWER [April 20,

Again, this same position is more conservatively suggested by
another essayist who says, speaking of the Supreme Court of the
United States:

“Tt is still open for that Court to hold that no treaty dealing with
matters entrusted to Congress is self-executing.’””™
If such statement be accurate, it is not because the Supreme Court
has failed to discuss the question. In a series of cases about to be
considered, the interpretation and application of Article VI.

of the Constitution were flatly before the court. This analysis

should determine the openness of the question whether or not
treaties have the force of law when dealing with subjects com-
mitted to Congress.

Before entering upon this analysis, however, it may be well to
record a contemporary interpretation of this clause which has
come down to us. George Mason was a member of the Federal
Convention from Virginia and was one of those who declined to
sign the Constitution. He issued a short pamphlet giving his objec-
tions to that instrument, among which he included the operation of —
the treaty-making power. On this point he said:

“By declaring all treaties supreme laws of the land, the Executive and :
the Senate have, in many cases, an exclusive power of legislation; which —
might have been avoided by proper distinctions with respect to treaties, and ‘
requiring the assent of the House of Representatives, where it could be done
with safety.”

Mason was a Virginian of distinction and earnestly opposed the
ratification of the Constitution by his State. He spoke frequently —
in the Virginia Convention, and neither in his speeches nor any-_
where else in those debates, nor in the debates in the Federal Con-
vention, is there to be found a suggestion that Mason’s interpreta-
tion of the clauses establishing the treaty-making power was not ;
the interpretation of all. }

United States vs. Schooner Peggy*®® seems to have been the

«The Extent and Limitations of the Treaty-making Power under the
Constitution,” by Chandler P. Anderson, American Journal of International
Law, Vol. 1, Part II (1907), p. 654.

™ Farrand, Vol. IL., p. 639.
8 + Cranch, 103 (1802).

1912.] OF THE UNITED STATES. 309

earliest case in which the Supreme Court interpreted and applied
the Sixth Article of the Constitution to an existing treaty. Therein,
in accordance with the Act of Congress of July 9th, 1798, a decree of
condemnation had been pronounced by the Circuit Court on Sep-
tember 23rd, 1800. On October 2nd, 1800, a writ of error was
allowed to the Supreme Court. A treaty with France was signed
September 30th, 1800. Mr. Chief Justice Marshall delivered the
’ opinion of the Court, and held that the treaty operated at once
propriore vigore to set aside the condemnation, which had not, while
the writ of error was pending, become definitive within the meaning
of the treaty. The Chief Justice said:

“The Constitution of the United States declares a treaty to be the
supreme law of the land. Of consequence, its obligation on the Courts of the
United States must be admitted. It is certainly true that the execution of a
. contract between nations is to be demanded from, and, in the general,
superintended by, the executive of each nation; and, therefore, whatever the
decision of this Court may be relative to the rights of parties litigating before
it, the claim upon the nation, if unsatisfied, may still be asserted. But yet
where a treaty is the law of the land, and as such affects the rights of parties
litigating in Court, that treaty as much binds those rights, and is as much to
be regarded by the Court, as an act of Congress.”"™

It will be observed that the Act of 1798 was passed by Congress
in the exercise of either or both of its powers to declare war and
to regulate commerce. The treaty with France therefore was de-
clared by this case to operate as a repeal of an act upon a subject
expressly committed to Congress.

In Foster & Elam vs. Neilson,’% the question of the effect to be
given a treaty provision under Article VI. of the Constitution came
again before the Supreme Court. It was a case of great importance,
argued by Mr. Webster, among others, and resulted in an unani-
mous decision delivered by Mr. Chief Justice Marshall. The argu-
ments are reported at length, and the assumptions underlying them
have also their significance. The action was one in the nature of
- ejectment seeking to recover lands lying east of the Mississippi in
what was at one time known as West Florida. The defendant
relied on want of title in the plaintiff. He had set up a title derived

* Tbid., p. 109.

™ 2 Peters, 253 (1829).

310 BURR—THE TREATY-MAKING POWER [April 20,

from a grant by the King of Spain dated in 1804, subsequent to the
treaty of cession of Louisiana. The first question at issue was the
extent of the cession. It was claimed that this did not extend to
what was called West Florida, and it was shown that this had long
been a controverted point on which Spain, France, and the United
States had disputed until adjusted by the treaty with Spain signed
February 22, 1819. It was urged that this dispute should now be
judicially determined. The Acts of Congress respecting this terri-
tory including West Florida are recited by the Chief Justice, who
then disposes of this first issue in the following words:

“Tf those departments which are entrusted with the foreign intercourse

of the nation, which assert and maintain its interests against foreign powers,
have unequivocally asserted its rights of dominion over a country of which
it is in possession, and which it claims under a treaty; if the Legislature has
acted on the construction thus asserted, it is not in its own Courts that this
construction is to be denied. A question like this respecting the boundaries ©
of nations, is, as has been truly said, more a political than a legal question,
and in its discussion, the Courts of every country must respect the pro-
nounced will of the Legislature.”*”
The second point of controversy in this case was the effect to be
given the treaty of 1819 above referred to. Did it or did it not,
the Chief Justice proceeds to consider, operate to confirm all grants
made by the King of Spain after the treaty of 1800 and prior to
January 24th, 1818. The language of the treaty on this point was as
follows:

“All the grants of land made before the 24th of January, 1818, by his
Catholic Majesty, or by his lawful authorities, in the said territories ceded
by his Majesty to the United States, shall be ratified and confirmed to the
persons in possession of the lands, to the same extent that the same grants
would be valid if the territories had remained under the dominion of his
Catholic Majesty.”
Prior to the execution of this treaty, Congress had passed an act
purporting to annul such grants, and after its execution by a series
of acts it confirmed certain grants, among which was not, however,
the plaintiff’s. After quoting the extract from the treaty given
above, the Chief Justice said: or

. “Do these words act directly on the grants, so as to give validity to those

* Tbid., p. 300.

1912.] OF THE UNITED STATES. 311

not otherwise valid; or do they pledge the faith of the United States to pass
acts which shall ratify and confirm them?

“A treaty is in its nature a contract between two nations, not a legis-
lative act. It does not generally effect, of itself, the object to be accom-
plished; especially so far as its operation is intra-territorial; but is carried
into execution by the sovereign power of the respective parties to the
instrument.

“In the United States a different principle is established. Our Consti-
tution declares a treaty to be the law of the land. It is, consequently, to be
regarded in Courts of Justice as equivalent to an Act of the Legislature,
whenever it operates of itself without the aid of any legislative provision.
But when the terms of the stipulation import a contract, when either of the
parties engages to perform a particular act, the treaty addresses itself to the
political, not the judicial department; and the legislature must execute the
contract before it can become a rule for the Court.

“The article under consideration does not declare that all the grants
made by his Catholic Majesty before the 24th day of January, 1818, shall be
valid to the same extent as if the ceded territories had remained under his
dominion. It does not say that those grants are hereby confirmed. Had such
been its language, it could have acted directly on the subject, and would have
repealed those Acts of Congress which were repugnant to it; but its language
is that the grants shall be ratified and confirmed to the persons in possession,
etc. By whom shall they be ratified and confirmed? This seems to be the
language of contract; and if it is, the ratification and confirmation which are
promised must be the Act of the Legislature. Until such Act shall be
passed, the Court is not at liberty to disregard the existing laws on the
subject.’”"”

A decree was therefore entered adverse to the title of the plaintiff.

This case constitutes, therefore, a decision, first, that treaties
must, if properly worded to convey such intention, “be regarded in
Courts of Justice as equivalent to an act of the Legislature”; sec-
ondly, that they may, however, “import a contract only’’; thirdly,
that in the case at bar, the language used required Congress to exe-
cute the contract by the passage of an act before it could become
a rule for the Court. There is nothing of the nature of obiter dicta
in the decision of the Court. The grounds of the decision are ex-
pressly stated. It is, moreover, worthy of note that in the argu-
ments of counsel the interpretation given in the court’s opinion to
Article VI. of the Constitution is assumed by counsel—one of whom
was Mr. Webster—to whose interest it would have been to argue
that the treaty “must be sanctioned by an Act of Congress” to

™ Tbid., pp. 314-5.

312 BURR—THE TREATY-MAKING POWER [April 20,

become “a treaty in the sense intended by the Constitution when it
says a treaty is the supreme law of the land.” No better opportu-
nity to enunciate this doctrine could have been presented. By Act
of March 26th, 1804, Congress had provided that all such grants for
lands as constituted the plaintiff’s title, “are hereby declared to be,
and to have been from the beginning, null, void and of no effect in
law or equity.” And yet the Court said: Had the treaty provided
“that those grants are hereby confirmed,” “it would have acted
directly on the subject, and would have repealed those Acts of
Congress which were repugnant to it.” The act was passed in 1804
presumably under Article IV., Section 3, of the Constitution: “ The
Congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging
to the United States.” The treaty was made fifteen years there-
after, and yet the Court held that it could have operated, by a slight
change in phraseology sufficient to show an intention that its pro-
visions should operate forthwith, as a repeal of the acts of Congress
upon a subject of law so local and individual in its nature as the
subject of land titles. To say that this case went off on the interpre-
tation of the treaty, is to deal with the shadow of things.

It is to do more; it is to ignore the authority and significance
of the numerous other cases decided shortly thereafter with refer-
ence to this same Spanish treaty. In United States vs. Perche-
man,?’° a case similar to that of Foster & Elam vs. Neilson, it was
brought to the attention of the Court, that in the Spanish original
of the treaty, the language used was equivalent to a confirmation
by force of the treaty itself. Said Mr. Chief Justice Marshall:

“When we observe that in the counterpart of the same treaty, executed
at the same time by the same parties, they are used in this sense, we think
the construction proper, if not unavoidable.

“In the case of Foster vs. Elam, 2 Peters, 253, this Court considered
considered these words as importing contract. The Spanish part of the
treaty was not then brought to our view, and we then supposed that there
was no variance between them. We did not suppose that there was even a
formal difference of expression in the same instrument, drawn up in the

language of each party. Had this circumstance been known, we believe it
would have produced the construction which we now give to the article.

7 Peters, 51 (1833).

1912.] OF THE UNITED STATES. 313

“This understanding of the article, must enter into our construction of
the acts of Congress on the subject.’

After the death of Marshall in 1835, there followed a series of cases
concerning these Spanish grants, in which was discussed the case of
Foster & Elam vs. Neilson. The important ones are Strother vs.
Lucas,” Garcia vs. Lee,** and Pollard vs. Kibbe.1!* Differences of
opinion developed among the judges but each of them in explicit
language adopted and approved the doctrine of Foster & Elam vs.
Neilson that a treaty when made self-executing by its terms has the
force of a legislative act. Thus in Garcia vs. Lee, Mr. Chief Justice
Taney in delivering the opinion of the Court, unanimous upon this
point,’ said:

“Tf, therefore, this was a new question and had not already been decided
in this Court; we should be prepared now to adopt all of the principles
affirmed in Foster & Elam vs. Neilson, with the exception of the one since
over-ruled in the case of the United States vs. Percheman, as hereinbefore
stated.””*

In arguing Foster & Elam vs. Neilson, it had been said:

“The plaintiffs invoke the aid of treaties. They place their claim upon
the language of treaties which the Constitution has made the law of the land,
and which cannot be annulled by the executive, or by the legislature.”

Apparently, therefore, doubt existed generally as to whether Con-
gress by the passage of an act could in effect repeal the provisions
of a treaty as operative local law.* The question was brought
squarely before Mr. Justice Curtis sitting at circuit in 1855 in

™ Thid., p. 80.

™? 12 Peters, 410 (1838).

“8 Tbid., 511 (1838).

™ 14 Peters, 353 (1840).

™° The single dissent of Mr. Justice Baldwin, as is apparent from his
long opinion in Pollard vs. Kibbe, was based on the fact that he thought the
interpretation put upon the treaty in United States vs. Percheman should be
followed out further than the remaining members of the Court had de-
termined in Garcia vs. Lee.

™° 12 Peters, p. 522.

™ 2 Peters, p. 277.

“8 Writing in The Federalist, Jay had said: “ The proposed Constitution
has not in the least extended the obligation of treaties. They are just as
binding and just as far beyond the lawful reach of legislative acts now as
they will be at any future period or under any form of government.”

314 BURR—THE TREATY-MAKING POWER [April 20,

Taylor vs. Morton.’ Congress had passed a customs act alleged
to be in contravention of an existing treaty with Russia; and the
judge held that it was wholly immaterial to inquire whether the
statute departed from the treaty, inasmuch as it was the prerogative
of Congress to determine whether a treaty should be kept or abro-
gated, and that the will of Congress expressed in a statute was
obligatory on the judiciary, whether the departure from the treaty
was accidental or designed, or the reasons therefor, if designed,
were good or bad.

This question reached the Supreme Court in 1870 in the case of
The Cherokee Tobacco,’*® wherein an act of Congress was in con-
flict with the existing treaty with the Cherokee nation. Said the
Court:

“ Undoubtedly one or the other must yield. The repugnancy is clear and
they cannot stand together. . . . The effect of treaties and acts of Congress,
when in conflict, is not settled by the Constitution. But the question is not
involved in any doubt as to its proper solution. A treaty may supersede a
prior Act of Congress (Foster & Elam vs. Neilson is here quoted in the
margin), and an Act of Congress may supersede a prior treaty (Taylor vs.
Morton is here quoted in the margin). In the cases referred to these
principles were applied to treaties with foreign nations.’

The Court therefore held that they applied equally to treaties with
Indian tribes, and that the statute must prevail over the provisions
of an earlier treaty. There are several interesting points to note
here. The first is that Foster & Elam vs. Neilson is quoted as estab-
lishing the principle that “a treaty may supersede a prior act of
Congress.” Surely if it may do that, it is not necessary in order
that it should become effective as a law of the land that it “be
sanctioned by an act of Congress.” In the case under discussion,
the Act of Congress was passed under the power “to regulate com-
merce with foreign nations, and among the several States, and with
the Indian tribes.” There had been an effective treaty regulating
commerce. Was it invalid as it dealt with a subject expressly com-
mitted to Congress? Such an idea never entered the minds of the
Court. In truth, while constitutional interpretation was forming
™ 2 Curtis, 454 (1855).

™ 11 Wall., 616 (1870).
111 Wall, pp. 620-1.

1912.] | OF THE UNITED STATES. 315

into that body we now know as constitutional law, the recognition of
treaties as embodying the supreme law of the land is seen as uni-
versal. The assumption of this principle of interpretation underlies
every argument, every decision, every reason enunciated as the
ground of decision. The query in some minds, as for example,
those of counsel in Foster & Elam vs. Neilson quoted above, was
quite different. They questioned the effectiveness of an act of Con-
gress in conflict with a prior treaty.

Following The Cherokee Tobacco case came The Head Money
Cases ;*** and the question therein was whether an act of Congress
was valid which imposed on ship owners a small tax for each immi-
grant brought into the United States, and provided that the proceeds
should be used for the benefit of immigrants as a class. The Court
remarked :

“We had supposed that the question here raised was set at rest in this
Court by the decision in The Cherokee Tobacco.”™

And the Court held:

“We are of opinion that, so far as a treaty made by the United States
with any foreign nation can become the subject of judicial cognizance in the
Courts of this Country, it is subject to such acts as Congress may pass for
its enforcement, modification, or repeal.’””™

On the subject of the status of treaties under the Constitution, the
Court lays down the following controlling principles:

“A treaty is primarily a compact between independent nations. It
depends for the enforcement of its provisions on the interest and the honor
of the governments which are parties to it. If these fail, its infraction
becomes the subject of international negotiations and reclamations, so far
as the injured party chooses to seek redress, which may in the end be enforced
by actual war. It is obvious that with all this, the judicial Courts have
nothing to do and can give no redress. But a treaty may also contain pro-
visions which confer certain rights upon the citizens or subjects of one of
the nations residing in the territorial limits of the other, which partake of the
nature of municipal law, and which are capable of enforcement as between
private parties in the Courts of the country. . . . A treaty, then, is a law of
the land as an act of Congress is, whenever its provisions prescribe a rule by
which the rights of the private citizen or subject may be determined. And

™ 112 U. S., 584 (1884).
*8 Tbid., p. 597.
™ Tbid., p. 599.

316 BURR—THE TREATY-MAKING POWER rApitlian,

when such rights are of a nature to be enforced in a Court of justice, that
Court resorts to the treaty for a rule of decision for the case before it as it
would to a statute.”

To say, in a case where the Act of Congress under discussion was
sustained as a regulation of commerce, that ‘a treaty is a law of the
land as an act of Congress is,” is flatly inconsistent with the doctrine
that a treaty must to receive recognition “be sanctioned by an act
of Congress.” And the opinion quoted was that of Mr. Justice

Miller acquiesced in by the whole Court.

. The case of United States vs. 43 Gallons of Whiskey'*® has been
passed over for the moment. Therein the question was as to the
effect of a treaty with the Chippewa Indians proclaimed May 5,
1864. By Article VII. thereof, it was provided that the laws of the
United States respecting the sale of liquors in the Indian country
should be in full force throughout the country thereby ceded. This
ceded territory had become part of the State of Minnesota. The
Court sustained the efficacy of the provisions in the treaty and said:

“The Constitution declares a treaty to be the supreme law of the land;

and Chief-Justice Marshall, in Foster & Elam vs. Neilson, has said, ‘that a
treaty is to be regarded, in Courts of justice, as equivalent to an Act of the
Legislature, whenever it operates of itself, without the aid of any legislative
provision.’ No legislation is required to put the Seventh Article in force;
and it must become a rule of action, if the contracting parties had power
to incorporate it in the treaty of 1863. About this there would seem to be
no doubt.”
This is another case where a united court concurred in Mr. Chief
Justice Marshall’s view respecting the meaning of Article VI. of
the Constitution and the consequent efficacy of treaty provisions
even when not “sanctioned by an Act of Congress.”

It will be best to consider together the Chinese Exclusion Cases,
and therefore the case of United States vs. Rauscher'** next de-
serves attention. It arose under the provisions of an extradition
treaty and decides that under its proper construction a person de-
manded and received from Great Britain in accordance with its
provision, cannot be tried for a crime other than the one for which
he was extradited. In the course of the opinion the language of

Tbid., pp. 598-0. ™ Thid., p. 106.
93 U. S., 188 (1876). * 119 U. S., 407 (1886).

1912.] OF THE UNITED STATES. 317

Mr. Chief Justice Marshall in Foster & Elam vs. Neilson and of
Mr. Justice Miller, already quoted above, is unanimously approved
and set forth in full.***

The cases of Bartram vs. Robertson**® and Whitney vs. Robert-
son**? will be next considered. These grew out of a treaty made
January 30th, 1875, with the King of the Hawaiian Islands providing
for the importation free of duty into the United States of certain
produce of these islands. It was held in the former case that the
existing treaty with Denmark, and in the latter case that the existing
treaty with the Dominican Republic, did not by the provisions
therein contained against discrimination in favor of products of
other countries, operate to cause the existing tariff to be lowered
in favor of those nations. The ground given in Bartram vs. Robert-
son for this decision was that the treaty stipulations relied on,
“even if conceded to be self-executing by the way of a proviso or
exception to the general law imposing the duties, do not cover con-
cessions like those made to the Hawaiian Islands for a valuable
consideration.” In Whitney vs. Robertson the former case is
quoted with approval, and the same ground is given for the decision.
The Court then proceeds to state as a second controlling considera-
tion the fact that the Act of Congress under which the duties were
collected on importations from San Domingo, was subsequent in
date to the treaty. On this point the Court quoted with approval
Taylor vs. Morton, and Head Money Cases, and said:

“Tf the treaty contains stipulations which are self-executing, that is,
require no legislation to make them operative, to that extent they have the
force and effect of a legislative enactment. Congress may modify such pro-
visions, so far as they bind the United States, or supersede them altogether.
By the Constitution a treaty is placed on the same footing, and made of like
obligation, with an Act of legislation. Both are declared by that instrument
to be the supreme law of the land, and no superior efficacy is given to either
over the other.”**

This is the language of Mr. Justice Field speaking for a united
Court in a case involving the comparative efficacy of treaty pro-
visions and an Act of Congress respecting duties. Can it be said

™ Tbid., pp. 418-9. ™ 124 U. S., 190 (1888).

1%” 122 U. S., 116 (1887). = Tbid., p. 1904.

PROC. AMER. PHIL. SOC. LI. 206 R, PRINTED SEPT. 6, I9I2.

318 BURR—THE TREATY-MAKING POWER [April 20,

that the Court which decided this case, thought it open to them to
hold that no treaty on this subject could be self-executing? To so
suggest is to make nonsense of the language quoted: “ By the Con-
stitution a treaty is... made of like obligation with an Act of
legislation.” The judge is speaking of treaties and acts respecting
duties on foreign commerce. Is it possible to maintain that the
Court thought that a treaty made self-executing in its terms had no
efficacy in a case respecting duties? |

The Chinese Exclusion Cases had popular interest and political
significance. Necessarily, the ability of the counsel who argued
them was high; all that could be said was presumably said in arguing
this long succession of cases before the Supreme Court. Yet.
nowhere creeps in a suggestion that the provisions of the treaties
with China dealing with and regulating commerce and immigration,
are ineffective as laws; indeed, the cases are suffused with the light
of the contrary assumption and constitute direct and positive deci-
sions recognizing and establishing the efficacy of treaty provisions
propriore vigore.

In 1881, a treaty with China was ratified looking to the regula-
tion by the United States of the immigration of Chinese laborers.
In 1882 Congress passed a regulating Act, and in 1884 a supple-
mentary Act under which it required of Chinese about temporarily to
leave, to secure a certificate which should be the only evidence per-—
missible to establish a right of reéntry. Afterwards, in 1888, Con-
gress passed an Act absolutely forbidding the return to the United
States of any Chinese who had departed or who should depart. In_ :
1884, in the case of Chew Heong vs. United States,*** the Court held
that the Act of 1884 should not be interpreted to bar out Chinese
who had left the country before the Act, and therefore could
not be in possession of the required certificate. The chief ground —
of this decision was that the treaty and the Act had the same
authority and should therefore, if possible, be so construed as to be ~
mutually consistent ; so as to avoid the necessary alternative of hold- —
ing that the later law repealed by implication the treaty. |

“A treaty,” said the Court, “that operates of itself without the

199 112 U. S., 536 (1884).

1912.] OF THE UNITED STATES. 319

aid of legislation is equivalent to an Act of Congress, and while in
force constitutes a part of the Supreme power of the land. Foster
vs. Neilson.”*** Mr. Justice Field dissented on the ground that the
act was too plain to permit of any interpretation consistent with the
treaty. As to the principle regulating the subject, he said:

“A treaty is in its nature a contract between two or more nations, and
is so considered by the writers on public law; and by the Constitution it is
placed on the same footing and made of like obligation as a law of the
United States. Both are declared in that instrument to be the supreme law
of the land, and no paramount authority is given to either over the other.

“ Some treaties operate in whole or in part by their own force, and some
require legislation to carry their stipulations into effect. . . . If the treaty
relates to a subject within the power of Congress and operates by its own
force, it can only be regarded by the Courts as equivalent to a legislative act.
Congress may, as with an ordinary statute, modify its provisions, or supersede
them altogether.”

Here is language directly contrary to the modern essayist’s idea of
the openness of the question whether a treaty may deal with a sub-
ject committed to Congress. “Jf,” says Mr. Justice Field, and on
that point the whole Court concurred, “the treaty relates to a sub-
ject within the power of Congress and operates by its own force, it
can only be regarded by the courts as equivalent to a legislative act.”

After Congress had, in 1888, as above stated, unqualifiedly legis-
lated against the return of Chinese laborers who had once left this
country, the Supreme Court in Chae Chan Ping vs. United States,**
sustained the constitutionality of this statute. Mr. Justice Field
delivered the opinion of the Court, and said:

“Tt must be conceded that the Act of 1888 is in contravention of express
stipulations of the treaty of 1868 and of the supplemental treaty of 1880,
but it is not on that account invalid or to be restricted in its enforcement.
The treaties were of no greater legal obligation than the Act of Congress.
By the Constitution, laws made in pursuance and treaties made under the
authority of the United States are both declared to be the supreme law of
the land, and no paramount authority is given to one over the other. . . . If
the treaty operates by its own force, and relates to ‘a subject within the powers
of Congress, it can be deemed in that particular only the equivalent of a

legislative Act, to be repealed or modified at the pleasure of Congress. In
either case the last expression of the sovereign will must control.”*

™Tbid., p. 540. ™ 130 U. S., 581 (1880).
**Thid., pp. 562-3. * Thid., p. 600.

320 BURR—THE TREATY-MAKING POWER [April 20,

These Chinese Exclusion Cases are followed by innumerable
others dealing with one aspect or another of the treaties and the
statutes concerning the subject. Every decision approves the cases
analyzed above, and, inwoven with the reasoning on which they are
based, appears the reiteration of the equal efficacy of treaty provision
and statute law upon a subject within the power of Congress. The
proposition that a treaty provision has no force until “ sanctioned
by an act of Congress” would have met with impatient astonishment

‘if uttered to the judges who decided these cases.

In Geofroy vs. Riggs**® there is a most interesting and positive
holding that a treaty may operate of its own force to repeal an act
of Congress. The question presented was, in the language of the
Court: “ Can citizens of France take land in the District of Columbia
by descent from citizens of the United States?” On February 27th,
1801, by Act of Congress it was provided “ that the laws of the State
of Maryland as they now exist shall be and continue in force in that
part of the said District which was ceded by that State to the United
States and by them accepted.” After examining the law of Mary-
land at that date, the Supreme Court held that it established the dis-
ability of aliens to inherit. But, said the Supreme Court, the treaty

- with France of 1853 provided that the President shall recommend

to the several States the passage of acts conferring the right of hold-

ing real estate upon Frenchmen; the word “ States’? must have been ~
used as equivalent to political communities; since there could be no

plausible motive for discrimination between the States, on the one
hand, and the District of Columbia and the Territories, on the other,
the intention of the treaty must have been to give French citizens
the right of acquiring real estate by descent. Accordingly, the right
of the French claimants was sustained. The Act of 1801 was passed
by Congress in pursuance of its constitutional power “to exercise —
exclusive legislation in all cases whatsoever, over such district (not
exceeding ten miles square) as may, by cession of particular States,
and the acceptance of Congress, become the seat of the government
of the United States.’’4*° Yet the decision of this case is indisputably

*§ 133 U. S., 258 (1889).
1 Article I., Sec. 7.

1912.] OF THE UNITED STATES. 321

and unqualifiedly that the treaty operated of its own force to super-
sede the Act of Congress.

In Nishimura Ekiu vs. United States,’*° the constitutionality of
an Act of Congress forbidding certain classes of aliens to land, was
challenged, but was sustained. The Court in its opinion recognized
the adequacy of the treaty-making power to deal with the subject.

“It belongs,” the Court said, “to the political department of the govern-
ment, and may be exercised either through treaties made by the President and
Senate, or through Statutes enacted by Congress, upon whom the Constitu-
tion has conferred power to regulate commerce with foreign nations, includ-
ing the entrance of ships, the importation of goods, and the bringing of
persons into the ports of the United States.”™

The case of United States vs. Lee Yen Tai**? arose out of the
treaty with China of 1894, and the contention was made that that
treaty repealed or superseded the existing Acts of Congress. The
Court recited with approval the authorities analyzed above, and held
that the purpose to abrogate a treaty by a statute must clearly
appear, that in the case at bar the statute and treaty were “in abso-
lute harmony ” and consequently that interpretation was certified to
the lower court.*** Is it possible for one moment to maintain that
this decision is consistent with the thought that the treaty could not
have superseded the prior acts? The Court say: first, if the treaty
be inconsistent with the continued existence of the acts, they are to
be regarded as repealed; second, there is no inconsistency. The first
proposition is as absolutely a decision of the Court as the latter.
Again, in the very recent case of Johnson vs. Browne,*** we have |
again the question presented of whether a treaty has operated to
repeal a prior statute. The decision was to the effect that they were
readily reconcilable. It was a case of extradition, but there is no
hint of distinction upon this ground.

In DeLima vs. Bidwell, in the opinion reported as that of the
Court, we have an emphatic modern reiteration and approval of the
authorities just analyzed. After quoting from the constitutional
provision, the Court say:

“Tt will be observed that no distinction is made as to the question of

142 U. S., 651 (1802). 2 185 U. S., 213 (1902).
* Thid., p. 659.
“205 U. S., 309 (1907).

322 BURR—THE TREATY-MAKING POWER [April 20,

supremacy between laws and treaties, except that both are controlled by the
Constitution. A law requires the assent of both houses of Congress, and,
except in certain specified cases, the signature of the President. A treaty
is negotiated and made by the President, with the concurrence of two thirds
of the Senators present, but each of them is the supreme law of the land.”
The authorities are then quoted with approval.’*®

In Fok Yung Yo vs. United States,‘*" the treaty of 1894 with
China, under consideration in United States vs. Lee Yen Tai, came
again before the United States Supreme Court. By Article 3 it was
“agreed that Chinese laborers shall continue to enjoy the privilege
of transit across the territory of the United States in the course of
their journey to or from other countries, subject to such regulations
by the Government of the United States as may be necessary to
prevent such privilege of transit from being abused.’’ On December
8th, 1900, the Secretary of the Treasury, acting under this treaty,
issued regulations to the collectors of customs. A collector, acting
under these regulations, refused to permit the plaintiff to land.
His action was sustained by the Supreme Court, who recited the
paragraph of the treaty quoted above and said:

“We regard this as explicitly recognizing existing regulations, and as

assenting to their continuance, and to such modification of them as might be
found necessary to prevent abuse. It dealt with the subject specifically, and
was operative without an Act of Congress to carry it into effect.”
This is certainly a decision that a provision in a treaty leaving it to
the executive to regulate commerce in certain particulars, is valid
without an act of Congress, and that regulations made under it are
enforceable.

Inasmuch as the Supreme Court has spoken so often, so uni-
formly, so positively, upon the question discussed in the preceding
cases, it would seem almost a work of supererogation to inquire how
many treaties have been made regulating commerce, and put into
effect without any act of Congress. In Baldwin vs. Franks,’ de-
cided in 1887, Mr. Justice Fields recited a list. There are, he said,

“clauses found in some treaties with foreign nations, stipulating that the —
subjects or citizens of those nations may trade with the United States, and,

182 U.S. 8.495 “185 U. S., p. 303:
6 See note 9. 49 120 U. S., 678 (1887).
#7185 U. S., 206 (1902).

1912.] OF THE UNITED STATES. 323

for that purpose, freely enter our ports with their ships and cargoes, and
reside or do business here. Thus the treaty of commerce with Italy of
February 26, 1871, provides that ‘Italian citizens in the United States, and
citizens of the United States in Italy, shall mutually have liberty to enter,
with their ships and cargoes, all the ports of the United States and of Italy
respectively, which may be open to foreign commerce. They shall also have
liberty to sojourn and reside in all parts whatever of said territories. Article
I, 17 Stat. 845. Those stipulations operate by their own force; that is, they
require no legislative action for their enforcement. Treaty of Commerce
with Great Britain in 1815, Article 1, 8 Stat. 228; renewed and continued for
ten years by Article 4 of the treaty of 1818, 8 Stat. 249; and continued inde-
finitely by Article 1 of the treaty of 1827, 8 Stat. 361; treaty with Bolivia of
May 13, 1838, Article 3, 12 Stat. 1009; treaty with Costa Rica of July to, 1851,
Article 2, 10 Stat. 917; treaty with Greece of December, 1837, Article 1, 8
Stat. 498; treaty with Sweden and Norway of July 5, 1827, Article 1, 8
Stat. 346.

“The right or privilege being conferred by the treaty, parties seeking to
enjoy it take whatever steps are necessary to carry the provisions into effect.
Those who wish to engage in commerce enter our ports with their ships and
cargoes; those who wish to reside here select their places of residence, no
congressional legislation being required to provide that they shall enjoy the
right and privileges stipulated.”””

During the period covering the cases which we have analyzed
many justices sat upon the bench of the Supreme Court of the
United States; yet not one dissented when it was repeatedly held
that a treaty may by its terms be made self-executing and is then to
have the force of an act of Congress; that this principle was true
even when the subject dealt with was one committed by the Constitu-
tion to the legislation of Congress; that where provisions of treaties
and statutes conflict and there fails the effort to reconcile them
(always the duty of a Court when possible), the latest in point of
date must prevail. These principles have become part of constitu-
tional law. Such is the conclusion written for us by the long line of
cases, the analysis of which we have just concluded. And yet it is
said by one essayist today that the question is open for the Supreme
Court “to hold that no treaty dealing with matters entrusted to
Congress is self-executing” ;*** and for another essayist to maintain
“that so far as the domestic and intra-territorial effect of the exercise

™ Tbid., pp. 703-4.

™1C P. Anderson, American Journal of International Law, Vol. 1., Part
IL., p. 654.

324 BURR—THE TREATY-MAKING POWER [April 20,

of any of the powers committed by the Constitution to Congress are
concerned, Congress alone has any power in the premises,” and no
treaty has any domestic force “in the sense intended by the Consti-
tution when it says a treaty is the supreme law of the land.” “To
be that,” adds Professor Mikell, “it must be sanctioned by an Act
of Congress.’’** How is it possible—the question obtrudes itself—
for these views to be put forward? One superficial explanation
might be that, in an essay on this subject covering fifty-nine printed -
pages, Professor Mikell has deemed it unnecessary to discuss a single
one of the cases analyzed above, beginning with United States vs.
Schooner Peggy, and Foster & Elam vs. Neilson, decided in 1801
and 1829 respectively, and ending with Johnson vs. Browne, decided
in 1907.%° And it will hardly be proper to do otherwise than assume
that the members of Congress who spoke on the subject were
familiar with these cases. But the determining reason lies deeper
and resides in a confusion of thought and an overlooking of a dis- '
tinction already indicated. Article VI. of the Constitution deals
with individual rights secured by treaty provisions and not with —
national questions. In this national aspect, it is to the political side
of the government that questions respecting treaties address them-
selves, and with those, as we have seen, the Courts can have nothing
to do: Article VI. of the Constitution has no application. So with
the acquisition and cession of territory; so with treaties undertaking
in the form of a contract that something shall be done. It is for
Congress to meet the national obligation, or, in a grave issue, to
exercise its discretion in repudiating the undertaking of the govern-
ment and disavowing its treaty obligations. So formally and avow-
edly in 1798 did Congress act respecting the treaties with France, so
in effect did Congress act, as has been seen, in regard to the treaty
with China. And it is likewise true that in questions of tariff duties,
affecting the nation vitally and creating as well individual rights and ©

™ American Law Register, Vol. 57, p. 456.

*8 Of them, Mr. Mikell only mentions one—Geofroy vs. Riggs—as au-

thority for a definition, two others—The Cherokee Tobacco, and Head Money _
Cases—to make from them quotations in a note, and two more—Whitney vs. _
Robertson, and Taylor vs. Morton—as authority for the fact that an act of ©
Congress may repeal a treaty.

1912.] OF THE UNITED STATES. 325

obligations, there is a natural resolution of forces in favor of joint
action by the treaty-making power and by Congress. Party govern-
ment tends that way; a sense of responsibility toward the people and
of delicacy toward the other contracting nation, would wish to avoid
any possible friction. Today it has become a matter almost of legis-
lative precedent, that Congress shall fix duties when questions of
reciprocity arise.*°* The present action of the government with
respect to Canadian reciprocity above set forth is a conspicuous and
opportune example. This is legislative precedent of high significance
as to future political action: it is no more. The validity of treaty
provisions dealing with this and kindred subjects is sustained and
controversy thereon foreclosed by the series of cases examined.
Apart from the undeviating current of declared doctrine on the sub-
ject, the cases of United States vs. Schooner Peggy,’** and of Geofroy
us. Riggs *** are judgments that certain Acts of Congress were super-
seded by treaty provisions, while the case of Fok Yung Yo vs.
United States’®** gives to a treaty the effect of a statute. If a treaty
be neither of wholly national import nor executory in its nature, and
assume to create and declare individual rights and obligations, then
those rights and obligations must, if the treaty itself is to have the
force of law, have the same validity as though created by legislative
a action and receive recognition in the courts. There is no escape
from this position. Assume the premise that Article VI. of the Con-
_ stitution means what it says, and logic itself writes the conclusion..
4 _ But if legislative action were necessary to give treaty provision the
_ force of law intraterritorially, then not the treaty but the /egislative
act would be “ the supreme law of the land,” Article VI. qua treaties,
means nothing, and the statement, that a treaty to be the supreme
law of the land “must be sanctioned by an act of Congress” lacks
logical coherence. As well say that a recommendation in a Presi-
dent’s message is “the supreme law of the land when sanctioned by
an act of Congress.” Either treaty provisions can, without further
action, give to the rights created and declared thereby the force of
_ law, or they cannot. If not, they cannot be called “the supreme law
of the land.”

™ Supra, pp. 38-42. “* Supra, pp. 95-97.
*® Supra, pp. 76-78. ™ Supra, p. 101.

326 BURR—THE TREATY-MAKING POWER [April 20,

It is judicial utterance and judicial precedence which will de-
termine the validity of a treaty dealing with subjects committed to
the legislation of Congress, and the Supreme Court will beyond per-
adventure follow the long line of its recorded decisions. But if the
opinions of members of Congress come with such authority to some,
why is it not wisest to listen to one who himself signed the Constitu-
tion and lived among the men and the events which created it? On ~
the floor of the House on January 10, 1816, Charles C. Pinckney
thus spoke:

“T lay it down as an incontrovertible truth, that the constitution has
assumed (and indeed how could it do otherwise) that the government of the
United States might and would have occasion, like the other governments of
the civilized world, to enter into treaties with foreign powers, upon the
various subjects, involved in their mutual relations; and further, that it
might be, and was proper to designate the department of the government in
which the capacity to make such treaties should be lodged. It has said
accordingly, that the president, with the concurrence of the senate, shall
possess this part of the national sovereignty; it has, furthermore, given to
the same magistrate, with the same concurrence, the exclusive creation and
control of the whole machinery of diplomacy. He ouly, with the approba-
tion of the senate, can appoint a negotiator, or take any step towards a
negotiation. The constitution does not, in any part of it, even intimate that
any other department shall possess either a constant or an occasional right
to interpose in the preparation of any treaty, or in the final perfection of it.
The president and senate are explicitly pointed out as the sole actors in that
sort of transaction.

“The prescribed concurrence of the senate, and that too by a majority
greater than the ordinary legislative majority, plainly excludes the necessity
of congressional concurrence. If the consent of congress to any treaty had
been intended, the constitution would not have been guilty of the absurdity
of putting a treaty for ratification to the president and senate exclusively,
and again to the same president and senate, as portions of the legislature.
It would have submitted the whole matter at once to Congress; and the
more especially, as the ratification of a treaty by the senate, as a branch of —
the legislature, may be by a smaller number than a ratification of it by the
same body, as a branch of the executive government. If the ratification of 4
any treaty by the president, with the consent of the Senate, must be followed
by a legislative ratification, it is a mere nonentity. It is good for all pur-
poses, or for none. And if it be nothing in effect, it is a mockery by which
nobody would be bound. The President and senate would not themselves
be bound by it; and the ratification would at last depend, not upon the will of
the president and two thirds of the senate, but upon the will of a bare
majority of the two branches of the legislature, subject to the qualified legis-
lative control of the President.

1912.] OF THE UNITED STATES. 327

“Upon the power of the President and senate, therefore, there can be
no doubt. The only question is, as to the extent of it; or, in other words, as
to the subject upon which it may be exerted. The effect of the power, when
exerted within its lawful sphere, is beyond the reach of controversy. The
constitution has declared, that whatsoever amounts to a treaty made under
the authority of the United States, shall immediately be supreme law. It
has contradistinguished a treaty as law, from an act of congress as law. It
has erected treaties, so contradistinguished, into a binding judicial rule. It
has given them to our courts of justice, in defining their jurisdiction, as a
portion of the lex terra, which they are to interpret and enforce. In a word,
it has communicated to them, if ratified by the department which it has
specially provided for the making of them, the rank of law—or it has
spoken without meaning. And, if it has elevated them to that rank, it is idle
to attempt to raise them to it by ordinary legislation.

“It is clear, that the power of congress, as to foreign commerce, is only
what it professes to be in the constitution, a legislative power—to be exerted
municipally, without consultation or agreement with those with whom we
have an intercourse of trade. It is undeniable, that the constitution meant
to provide for the exercise of another power relatively to commerce, which
‘should exert itself in concert with the analogous power in other countries;
and should bring about its results, not by statute enacted by itself, but by
an international compact called a treaty; that it is manifest, that this other
power is vested by the constitution in the president and senate, the only
department of the government which it authorizes to make any treaty, and
which it enables to make all treaties; that if it be so vested, its regular exer-
cise must result in that which, as far as it reaches, is law in itself—and,
consequently, repeals such municipal regulations as stand in its way; since
it is expressly declared by the Constitution, that treaties regularly made,
shall have, as they ought to have, the force of law.”™

Il.

The second fundamental question presented, as we have seen, by
an analysis of the functions of the treaty-making power, is: Whena
treaty deals with a subject upon which the State as opposed to Con-
gress are authorized to legislate, is such treaty valid? or rather,
what is its status?

_ An historical and inductive study of the cases upon a given sub-
ject is beyond doubt the best method of approach toward its com-
prehension, when the question is one having its origin in judicial
precedent: But when the question be primarily one of interpreta-
tion of a written instrument, it becomes clear that the facts sur-

*8 Elliott’s Debates, Vol. IV., pp. 276-8, Ed. of 1830.

328 BURR—THE TREATY-MAKING POWER [April 20,

rounding the creation of that instrument must first be analyzed and
understood before an attempt be made to follow the judicial inter-
pretation thereof.

The language of the Constitution is as follows:

“ All treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in every
State shall be bound thereby, anything in the Constitution or laws of any

State to the contrary notwithstanding.”
These plain and precise words of the Constitution have not sufficed
to impress their apparent meaning upon the minds of many. Ac-
cordingly the essayist already quoted thus concludes his discussion —
oH the question now before us: The doctrine that the treaty-power
‘is supreme over the reserved rights of the States is by no means
established in our jurisprudence.’’?®° pak

One may venture the surmise that were the question free from
political significance, no such effort to escape the evident meaning of
English words would be conceived to be possible. But tie question:
has its political aspect, has always had it; and the doubt of political
opponents born of their wishes has again been uttered.

It is easy for the lawyer to fall into the error of regarding ele
Constitution as a neutral document susceptible of diverse interpreta-
tion according as its critic be a States-right advocate or a Federalist.
Any document viewed through political eyes is susceptible of such
treatment: the political critic is capable in the interests of party of
any brutality of interpretation. And it is true that the existence of |
a political aspect to all constitutional questions has always and
necessarily been realized by the Supreme Court. But what is not
always borne in mind is the historical fact that the advocates and
opponents of an effective Federal government, superior within the
scope of its activities to the State governments, fought out thei E
differences at the time of the creation of the Constitution, and the
advocates won. Here and there through the Constitution are con-
cessions made to the opponents: the Senate with its equality of Stat
representation guaranteed to be inviolable, the slavery clauses, th
first ten amendments. But in its fundamental essentials the Consti-

Article VI., Clause 2.
* American Law Register, Vol. 57, p. 554.

ra,

1912.] OF THE UNITED STATES. 329

tution was written by Federalists who well knew what they wished
to achieve. There were the three activities of the new nation, the
legislative, the executive, the judicial ; and into its hands were placed,
as Patrick Henry complained, the purse and the sword:*™ it was
given the power to tax, it could command an army to do its will.
To guard these powers a new judiciary—the Federal—was created,
to whom was committed the interpretation of this Constitution—a
power never before in the world’s history vested in any court. Not
adventitiously nor by the caprice of smiling fate, did those words,
constituting treaties and acts of Congress the supreme law of the
land, come into the Constitution. Against persistent, bitter, and all
but successful opposition, the Federalists wrote them into the Con-
stitution; and once there, by the mouth of that great Federalist
John Marshall, they were interpreted to mean precisely what they
said.

Under the Articles of Confederation any effective government
was demonstrated to be impossible to the United States. Among
the existing difficulties stood out prominently two: lack of means to
secure money for the general government; neglect of the several
States to recognize the provisions of treaties negotiated by the
United States.

Congress had unanimously ratified the treaty of peace with Great
Britain in 1783. By its provisions, “ The great and principal ob-
jects,” to use the language of the Supreme Court in afterwards
construing it,

_ “were three on the part of Great Britain, to wit, Ist: a recovery by British

Merchants, of the value in sterling money of debts contracted, by the citizens
of America, before the treaty. 2nd: Restitution of the confiscated property
of real British subjects, and of persons residents in districts in possession of
the British forces, and who had not borne arms against the United States;
and a conditional restoration of the confiscated property of all other persons:
and 3rdly: A prohibition of all future confiscations, and prosecutions.”

The Court continues:

“The following facts were of the most public notoriety, at the time
when the treaty was made, and therefore must have been very well known to

*! Elliott’s Debates, Vol. II., p. 539, Ed. of 1854.
2 Ware vs. Hylton, 3 Dallas, p. 238.

330 BURR—THE TREATY-MAKING POWER [April 20,

the gentlemen who assented to it. Ist. That British debts, to a great amount,
had been paid into some of the State Treasuries, or loan offices, in paper
money of very little value, either under laws confiscating debts, or under
laws authorizing payment of such debts in paper money, and discharging the
debtors. 2nd. That tender laws had existed in all the States; and that by
some of those laws, a tender and a refusal to accept, by principal or factor,
was declared an extinguishment of the debt. From the knowledge that such
laws had existed there was good reason to fear that similar laws, with the
same or less consequences, might be again made (and the fact really hap-
pened), and prudence required to guard the British creditor against them.
3rd: That in some of the States property, of any kind, might be paid, at an
appraisement, in discharge of any execution. 4th: That laws were in force
in some of the States, at the time of the treaty, which prevented suits by
British creditors. 5th: That laws were in force in other of the States, at
the time of the treaty, to prevent suits by any person for a limited time. All
these laws created legal impediments, of one kind or another, to the recovery
of many British debts, contracted before the war; and in many cases com-
pelled the receipt of property instead of gold and silver.’

And the Court held it to be the very evident intendment of the lan-
guage used in the treaty to effectuate the three objects already set
forth. This case of Ware vs. Hylton in which these foregoing
observations are found, will be examined later in detail.%* The
judge merely recited facts of universal knowledge. Under the
Articles of Confederation Congress indeed had the exclusive power
to make treaties, but nowhere was any power vested in the Federal
government to enforce the provisions of treaties. State after State
either passed new acts violative of the treaty of peace, or proceeded
to enforce existing acts equally obnoxious. Dr. McMaster
observes : :
“The open contempt with which, in all parts of the country, the people
treated the recommendation of Congress concerning the refugees and the

payment of the debts, was no more than any man of ordinary sagacity could
have foretold.’”®

And elsewhere the same historian states: .

“There were some Articles [of the treaty] which the people had long 3
before made up their minds never should be carried out.”*”

*8 Ware vs. Hylton, 3 Dallas, p. 238.
** Infra, pp. 135-146. ie
©“ A History of the People of the United States,” John B. McMaster,
Vol. I, p. 130.
16 Tbid., p. 107.

1912.] OF THE UNITED STATES. 331

The situation was intensified by the fact that Great Britain had re-
fused to surrender the posts along the western frontier, and had
supported her refusal by alleging the treatment of British creditors
contrary to the provisions of the treaty. The diplomatic efforts of
John Adams as minister to Great Britain to secure an evacuation of
these posts, and a treaty of commerce, were rendered abortive and
even pathetic by the ever fatal demonstration that whatever the Con-
federation might do, the several States would undo.**% Said The
Federalist:

“ The treaties of the United States, under the present confederation, are
liable to the infraction of thirteen different legislatures and as many different
courts of final jurisdiction, acting under the authority of these legislatures.
The faith, the reputation, the peace of the whole Union, are thus continually
at the mercy of the prejudices, the passions and the interests of every
member, of which these are composed. Is it possible, under such circum-
stances, that the people of America will longer consent to trust their honor,
their happiness, their safety, on so precarious a foundation.”

Washington’s well-known words, quoted in his life by Marshall, ex-
pressed a recognition of the conditions: Foreign nations, he said,
with whom we wish to enter into treaty,

“must see and feel that the Union, or the States individually, are sovereign
as best suits their purposes :—in a word, we are a nation to-day, and thirteen
to-morrow. Who will treat with us on such terms?’

In the debates in the Federal Convention, Madison in objecting to
the New Jersey plan said:

“Will it prevent those violations of the law of nations and of treaties
which if not prevented must involve us in the calamities of foreign wars?
The tendency of the States to these violations has been manifested in sundry
instances. The files of Congress contain complaints already, from almost
every nation with which treaties have been formed. Hitherto indulgence has
been shown to us. This cannot be the permanent disposition of foreign
nations. A rupture with other powers is among the greatest of national
calamities. It ought therefore to be effectually provided that no part of the
nation shall have it in its power to bring them on the whole. The existing
confederacy does (not) sufficiently provide against this evil. The proposed
amendment to it does not supply the omission. It leaves the will of the
States as uncontrouled as ever.”

** Tbid., Vol. I., Chap. III.
*8 The Federalist, No. 22.
*° Marshall’s “ Life of Washington,” 1st Ed., Vol. V., Chap. 2, p. 73.
™ Farrand, Vol. I., p. 316.

332 BURKR—THE TREATY-MAKING POWER [April 20,

a

In the debates in the State conventions which ratified the Con-
stitution, the same unanimous recognition of existing conditions is
manifest. In Connecticut, Oliver Ellsworth said:

“ Another ill consequence of this want of energy is, that treaties are not
performed. The treaty of peace with Great Britain was a very favorable
one for us. But it did not happen perfectly to please some of the States, and
they would not comply with it. The consequence is, Britain charges us with
the breach, and refuses to deliver up the forts on our northern quarter,”

In Massachusetts, Samuel Adams rose to say of the Constitution, the
adoption of which he had long opposed :

“Sir, there are many parts of it I esteem as highly valuable, the article
which empowers Congress to regulate commerce, to form treaties, etc. For
want of this power in our national head, our friends are grieved, and our
enemies insult us. Our embassador at the Court of London is considered
as a mere cipher, instead of the representative of the United States.”*”

The President of the Virginia Convention spoke as follows:

“The moment of peace showed the imbecility of the Federal government:
Congress was empowered to make war and peace; a peace they made, giving
us the great object independence, and yielding us a territory that exceeded
my most sanguine expectations. Unfortunately a single disagreeable clause,
not the object of the war, has retarded the performance of the treaty on our
part. Congress could only recommend its performance, not enforce it; our
last assembly (to their honor be it said) put this on its proper ground—on
honorable grounds—it was as much as they ought to have done. This single
instance shews the imbecility of the confederation; the debts contracted by
the war were unpaid; demands were made on congress; all that congress was
able to do, was to make an estimate of debt, and proportion it among the
several states; they sent on the requisitions from time to time, to the states
for their respective quotas. These were either complied with partially, or
not at all; repeated demands on congress distressed that honorable body;
but they were unable to fulfill those engagements which they so earnestly
wished. What was the idea of other nations respecting America? What
was the idea entertained of us by those nations to whom we were so much —
indebted? The inefficacy of the general government warranted an idea that
we had no government at all.’”"”

The language of Governor Randolph answers these rhetorical
questions :
“We become contemptible in the eyes of foreign nations; they discarded ;

Elliott’s Debates, Vol. II., Ed. of 1854, p. 189.
™ Elliott’s Debates, Vol. I., p. 131.
*° Elliott’s Debates, Vol. IT., p. 58.

1912.] OF THE UNITED STATES. 333

us as little wanton bees who had played for liberty, but who had no suffi-
cient solidity or wisdom to secure it on a permanent basis, and were therefore
unworthy of their regard. It was found that congress could not even en-
force the observance of treaties. That treaty under which we enjoy our
present tranquility was disregarded.”

Madison, a delegate to the Federal Convention, and a signer of the
Constitution, thus pictured the existing conditions:

“The confederation is so notoriously feeble, that foreign nations are
_ unwilling to form any treaties with us—they are apprised that our general
government cannot perform any of its engagements; but, that they may be
violated at pleasure by any of the States. Our violation of treaties already
entered into, proves this truth unequivocally. No nation will therefore make
any stipulations with congress, conceding any advantages of importance to
us; they will be the more averse to entering into engagements with us, as
the imbecility of our government enables them to derive many advantages
from our trade, without granting us any return. But were this country
united by proper bands, in addition to other great advantages, we could form
very beneficial treaties with foreign states. But this can never happen with-
out a change in our system. Were we not laughed at by the Minister of that
nation, from which we may be able yet to extort some of the most salutary
measures for this country? Were we not told that it was necessary to
temporize till our government acquired consistency? Will any nation relin-
quish national advantages to us? You will be greatly disappointed, if you
expect any such good effects from this contemptible system.”
Universal was the desire for amelioration of the existing conditions,
and out of that desire and the conflict of opinion came the Constitu-
tion. It was debated by the Convention which framed it, it was
discussed by publicists and individuals, it was again debated in each
of the State conventions which considered its ratification. Yet
nowhere, so far as a careful search has revealed, was there a ques-
tion raised but that the meaning and intended effect of the words
in the Constitution respecting the status of treaties, was, that a
provision in any treaty properly expressed operated in despite of
any State enactment as municipal and local law within that State
and overrode all and any constitution, statute, or common law in
derogation thereof. Men opposed the wisdom of this constitutional
provision ; they united in recognizing its novel, almost revolutionary
significance.

™ Tbid., p. 50.

*© Thid., p. 128.

PROC. AMER. PHIL. SOC., LI. 206 S, PRINTED SEPT. 6, 1912.

334 BURR—THE TREATY-MAKING POWER [April 20,

There is nothing surprising in this unanimity of contemporary
interpretation. Every one knew that the great majority of the
nation concurred in the necessity of making treaty provisions
supreme over the caprice of State legislatures: the method to be
adopted had been an object of controversy. Early, in the consti-
tutional convention, as we have seen,’** a resolution had been pre-
sented granting to Congress the power, inter alia, “to negative all
laws passed by the several States contravening in the opinion of
the national legislature the Articles of Union or any treaties sub-
sisting under the authority of the Union.” This resolution had
been defeated and the following substituted and adopted:

“ Resolved, that the legislative acts of the United States, made by virtue

and in pursuance of the Articles of union, and all treaties made and ratified a
under the authority of the United States, shall be the supreme law of the
respective States, as far as those acts, or treaties, shall relate to the said
States, or their citizens and inhabitants ;—and that the judiciaries of the sev-
eral States shall be bound thereby in their decisions—anything in the respec-
tive laws of the individual States to the contrary, notwithstanding.”
This resolution, modified considerably as to style and somewhat ex-
tended in substance, became the clause in the Sixth Article of the —
Constitution. In Professor Farrand’s book on “ The Record of the
Federal Convention” are to be found the memoranda of the com-
mittee of detail, of which Professor Farrand says:

“With a few additions from other sources, it is possible to present a
nearly complete series of documents representing the various stages of the
work of the Committee.”"”

Among these documents is the following tentative provision after-
wards embodied in the Sixth Article of the Constitution:

“ All laws of a particular State, repugnant hereto, shall be void, and in ;
the decision thereon, which shall be vested in the supreme judiciary, all inci-
dents without which the general principles cannot be satisfied shall be con-
sidered as involved in the general principle.” :
Those who opposed the adoption of the treaty-making power in its
extent and supremacy, and those who favored it, united in the —
recognition of the purpose, meaning, and effect of the language —

_™ Supra, pp. 17-19. "8 Tbid., p. 120.
™ Farrand, Vol. IL., pp. 28-0. Thid., p. 144.

1912.] OF THE UNITED STATES. 335

used in the Sixth Article of the Constitution. That was a thing
admitted. Accompanying the transmission of the Constitution to
Congress was a letter unanimously approved by the Convention, and
signed by George Washington, as its President. In that letter it
is said:
“The friends of our country have long seen and desired, that the power
of making war, peace, and treaties, that of levying money and regulating
commerce, and the correspondent executive and judicial authorities should be
fully and effectually vested in the general government of the Union.”™”
In the essay already quoted, Professor Mikell, after urging that
the treaty-making power of the United States cannot operate to
affect State law upon any subject not expressly committed to Con-
gress, continues:
“The issue has been much obscured by the specious plea that it is intol-
erable that a State should enact laws in conflict with a treaty and by taking
away rights guaranteed to foreigners, under such treaty, give just cause of
offense to a foreign nation, and even possibly imperil the peace of the
whole Union.”
It is interesting to note that, in this view, Washington, Madison,
Randolph, Pendleton, Ellsworth, Hamilton, Adams, by the quota-
tions above made, and all who under their guidance voted for the
Constitution, made use of this “specious plea.” It is just possible
_ that a student of those four years of American history from the
| Treaty of peace in 1783 to the creation of the Constitution in 1787,
might conclude that the condition of affairs then existing because of
State disregard of treaties, was superior to the conditions wrought
by the Constitution. But it is very clear that none of the statesmen
who had suffered through those days shared this conclusion. Yet,
consideration as to whether Washington, Hamilton, Madison, Ran-
dolph, Adams, and the others were right or wrong, does not reach
_ the precise issue. And that issue is: What do the treaty clauses
in the Constitution mean? It cannot be gainsaid that treaties were
not effective law supreme over State enactments under the Con-
3 federation; it cannot be gainsaid that Washington and the con-
; _ temporary statesmen who created the Constitution thought (how-

™ Tbid., p. 666.
*™ American Law Register, Vol. 57, p- 554-

336 BURR—THE TREATY-MAKING POWER [April 20,

ever speciously) this condition wrong; it cannot be gainsaid that
they wrote the clause under discussion into the Constitution and
advocated its adoption; it cannot be gainsaid that contemporaneously
and as a reason for its adoption they interpreted it as creating a
condition of affairs under the Constitution exactly contrary to that
existing under the Confederation ; namely, a condition where treaties
would be supreme and forever beyond the power of any State to
infringe. The only issue therefore that can be logically raised is:
Is the language of the Constitution so ambiguous, so capable of
diverse construction, that one can fairly say that, whatever the
intention of its framers, it fails to express such intention? Or
to put this question concretely: When the Constitution says: “ All
treaties . . . shall be the supreme law of the land; and the judges
in every State shall be bound thereby, anything in the Consti-
tution or laws of any State to the contrary notwithstanding ’—are
these words so ineffective to carry their meaning that it may still be
said that treaties attempting to deal with any subjects not committed
to Congress have no operative force within the several States? Ili
so, the failure of the statesmen of America to express their thought
would be without a parallel in history. But it is not so. The lan-
guage is clear; if not the contemporary intention of its authors, |
certainly its contemporory interpretation must control.

In the debates in the Pennsylvania Convention, James Wilson
thus combined a realization of existing conditions, a statement of
the remedy to be applied, and an interpretation of the treaty-pro-
visions of the Constitution as adequate to that end: —

“The judicial power extends to all cases arising under treaties made, or
which shall be made by the United States. I shall not repeat at this time,
what has been said with regard to the power of the States to make treaties;
it cannot be controverted, that when made, they ought to be observed. But
it is highly proper that this regulation should be made, for the truth is, and I
am sorry to say it, that in order to prevent the payment of British debts, and
from other causes, our treaties have been violated, and violated too by the
express laws of several States in the Union. Pennsylvania, to her honor be
it spoken, has hitherto done no act of this kind; but it is acknowledged on
all sides, that many states in the Union have infringed the treaty; and it is

well known that when the minister of the United States made a demand on
Lord Carmarthen, of a surrender of the western posts, he told the minister

1912.] OF THE UNITED STATES. 337

with truth and justice: ‘the treaty under which you claim those possessions,
has not been performed on your part; until that is done, those possessions
will not be delivered up.’ This clause, sir, will shew the world that we
make the faith of treaties a constitutional part of the character of the
United States; that we secure its performance no longer nominally, for the
’ judges of the United States will be enabled to carry into effect, let the
legislatures of the different states do what they may.”

It will be noted at greater length hereafter but it should be noted
now that these words were spoken of an existing treaty, of existing
State laws, and of a subject not committed to Congress but reserved
to the States.

Wilson had signed the Constitution as a delegate to the Federal
convention. But the opponents of the extent and supremacy of the
treaty-making power united in a similar interpretation of the con-
stitutional clauses. Luther Martin was a delegate from Maryland
and refused to sign the Constitution. To his State legislature he
gave an account of the proceedings and of the reason for his actions.
Of the Federal judicial power he said:

“These courts, and these only, will have a right to decide upon the laws
of the United States, and all questions arising upon their construction, and in
‘a judicial manner to carry those laws into execution; to which the courts
both superior and inferior of the respective states and their judges and other
magistrates are rendered incompetent. To the courts of the general govern-
ment are also confined all cases in law or equity, arising under the proposed
Constitution, and treaties made under the authority of the United States.
. . . Whether therefore, any laws or regulations of the Congress, or any acts
of its president or other officers are contrary to, or not warranted by, the
Constitution, rests only with the judges who are appointed by Congress to
determine; by whose determinations every state™ must be bound.”™

George Mason, one of the delegates from Virginia to the Federal
Convention, thus wrote in a letter giving his reasons for declining
to sign the Constitution:

“By declaring all treaties supreme laws of the land, the executive and
the Senate have, in many cases, an exclusive power of legislation, which
might have been avoided, by proper distinctions with respect to treaties, and
requiring the assent of the House of Representatives, where it could be done
with safety.”

*2 Elliott’s Debates, Vol. III., pp. 280-1.
*8Ttalics are in original.

** Elliott’s Debates, Vol. IV., p. 45, Ed. of 1830.
**Tbid., Vol. I. p. 495, Ed. of 1854.

338 BURR—THE TREATY-MAKING POWER [April 20,

Richard Henry Lee, another delegate from Virginia, gave similar
reasons:

“In the new Constitution, the President and Senate have all the execu-
tive, and two thirds of the legislative power. In some weighty instances (as
making all kinds of treaties, which are to be the laws of the land), they
have the whole legislative and executive powers.”

Patrick Henry was a violent opponent of the adoption of the
Constitution in the Virginia debates. The reporter says that he ©
urged that

“the power of making treaties, by this Constitution, ill-guarded as it is,
extended farther than it did in any country in the world.—Treaties were to
have more force here than in any part of christendom, For he defied any
gentleman to shew anything so extensive in any strong energetic government
in Europe. Treaties rest, says he, on the laws and usages of nations. To
say that they are municipal, is, to me, a doctrine totally novel. To make them
paramount to the Constitution, and laws of the states, is unprecedented. I
would give them the same force and obligation they have in Great Britain, or ©
any other country in Europe. Gentlemen are going on in a fatal career; but
I hope they will stop before they concede this power unguarded and un-
altered.’""

In the North Carolina convention, Mr. Bloodworth thus opposed
the supremacy assigned to the acts of Congress and to the treaty-
making power:

“This clause will be the destruction of every law which will come in
competition with the laws of the United States. Those laws and regulations
which have been, or shall be made in this state, must be destroyed by it if
they come in competition with the powers of Congress.”

To him Governor Johnston thus replied:

“The Constitution must be the supreme law of the land, otherwise it
will be in the power of any one state to counteract the other states, and with-
draw itself from the Union. The laws made in pursuance thereof by Con-
gress, ought to be the supreme law of the land, otherwise any one state might
repeal the laws of the Union at large. Without this clause, the whole Con- —
stitution would be a piece of blank paper. Every treaty should be the
supreme law of the land; without this, any one state might involve the whole
Union in war.”

*°Tbid., Vol. I., p. 503, Ed. of 1854.
*7 Thid., Vol. II., p. 368.
*8 Tbid., Vol. III., p. 160.

' # Tbid., Vol. IIL. p. 166.

1912.] OF THE UNITED STATES. 339

In the Virginia convention George Nicholas quoted from Black-
stone a passage to show the status of treaties in Great Britain, and
adds:

' “The president and senate have the same power of making treaties; and
when made they are to have the same force and validity. They are to be the
supreme law of the land here—this book shews us they are so in England.
Have we not seen in America that treaties were violated, though they are in
all countries considered as the supreme law of the land? Was it not there-
fore necessary to declare in explicit terms, that they should be so here?’
Later in these Virginia debates Mr. Corbin, assuming the unanimous
interpretation, argued for the wisdom of the clause:

“It is as clear, as that two and two make four, that the treaties made are
to be binding on the states only. Is it not necessary that they should be
binding on the states? Fatal experience has proven that treaties would
never be complied with, if their observance depended on the will of the
states; and the consequences would be constant war. For, if any one state
could counteract any treaty, how could the United States avoid hostility with
foreign nations? Do not gentlemen see the infinite dangers that would
result from it, if a small part of the community could drag the whole
confederacy into war?”

Such were the conditions out of which were evolved the treaty
clauses of the Constitution; such was the universal contemporary
analysis of their purpose, significance, and import.

It has been noted’ that the clause assuming to insure supremacy
to treaty provisions, past and future, was adopted to cover existing
practical controversies. Did none of them—the question asks itself
—reach the courts, and result in an authoritative declaration inter-
preting these discussed clauses? What did the courts decree when’
British creditors sought to recover debts, and British claimants of
land sought to recover possession, in reliance on existing treaty pro-
visions? The answer is that the case of Ware vs. Hylton’? recog-
nized in 1796 the rights of British creditors, and the case of Fairfax
vs. Hunter,?®* decided in 1812, determined that the title of an alien
was saved by the treaty of peace.

It has been noted that in debating the constitutional provision on
the subject, James Wilson had said:

™ Tbid., Vol. II., pp. 372-3. * 3 Dallas, 199 (1706).
™ Thid., Vol. II., p. 375. *8> Cranch, 603 (1812).

340 BURR—THE TREATY-MAKING POWER [April 20,

“T am sorry to say it, that in order to prevent the payment of British
debts, and from other causes, our treaties have been violated, and violated too
by the express laws of several States in the Union. . . . This clause, sir, will
show the world that we make the faith of treaties a constitutional part of
the character of the United States; that we secure its performance no longer
nominally, for the judges of the United States will be enabled to carry into
effect, let the legislatures of the different states do what they may.’

In the Virginia debates, Governor Randolph had likewise expressly
adverted to this concrete cause to be subserved directly by the adop-
tion of the Constitution.

“T come now to what will be agitated by the judiciary. They are to
enforce the performance of private contracts. The British debts, which are
withheld contrary to treaty, ought to be paid.”™°

The Constitution was adopted, a British creditor brought suit,
and on appeal the case was argued in the Supreme Court by John
Marshall on behalf of the debtor. In a volume of reports com-
prising 519 pages and covering a period of over five years the report
of this case is allotted 87 pages; the opinions of the court cover
over 64 pages. This is conclusive evidence of the contemporary
estimate of its importance. The suit arose on a bond given by
Virginian citizens, and was brought in the Federal court for the
District of Virginia. The facts material in the present discussion,
in addition to the citizenship of the parties and the notorious fact

of war, were these. In 1774, the bond was dated. In1777,an Act

of Virginia was passed entitled “An Act for Sequestering British
Property,” and providing that full discharge of the debt should be
.created by the payment of the sum due to the commonwealth. In
1780, payment in accordance with the act was made by the defend-
ant. In 1783, the treaty of peace was made. In 1788, the Consti-
tution was declared operative by Congress. Marshall thus divided
his argument. I. That the Virginia Act was effective as a bar (ig- —
noring for the moment the treaty) because (a) the State had the
power to create a bar; and (b) the State had by the Act exercised
its power; II. That the treaty did not remove the bar. Marshall
argued (a) that the Act had operated in 1780 to extinguish the debt, —
that therefore in 1783 there was no debt and no creditor upon whom

** Elliott’s Debates, Vol. III., pp. 280-1.

1912.] OF THE UNITED STATES. 341

the treaty might operate when it provided “that creditors on either
side shall meet with no lawful impediment to the recovery of the
full value, sterling money, of all bona fide debts heretofore con-
tracted”; (6) that the treaty should not be interpreted to repeal an
act known to the commissioners who framed the treaty, without
express language of repeal; (c) that the treaty, if it operated to de-
prive the debtor of a right which had vested in 1780 three years
before the date of the treaty, was beyond the power of Congress.
The judgment of the Court was in favor of the creditor. Four
of the five judges delivered their opinions. All concurred in up-
holding the power of Virginia to pass the Act of 1777 and in its
efficacy apart from treaty stipulation. Mr. Justice Iredell alone dis-
sented on the ground that while the treaty operated to repeal the
Virginia statute, it could not properly be interpreted as operating
to annul acts done under it while in force and prior to its repeal.

It will be observed that the annulment of the Virginia statute
might logically be maintained in either or both of two ways: First,
because of the operation to that extent of the treaty by virtue of the
Articles of Confederation and of the assent thereto by Virginia as a
State; second, by the supreme efficacy given to the treaty by the
Constitution. A careful study of the opinions of Mr. Justice Chase
and of Mr. Justice Paterson*** shows that they placed their decision
2 upon both grounds; Mr. Justice Wilson placed his concurrence on
_ the first, and was silent as to the second; Mr. Justice Iredell denied
3 the validity of the first ground, and acquiesced emphatically in the
validity of the second (dissenting in the interpretation he gave to
the treaty). Said Mr. Justice Chase upon the second ground:

“If doubts could exist before the establishment of the present national
government, they must be entirely removed by the 6th article of the Consti-

tution, which provides ‘ That all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land; and

*8 Thid., Vol. IL., p. 352.

“* The acquiescence of Mr. Justice Paterson in the first ground is shown
by these words: “If the Legislature had authority to make the act, the
Congress could, by treaty, repeal the act, and annul everything done under
it,” at p. 249. His acquiescence in the second ground is shown by his rather
technical opinion having as its object the sustaining of the demurrer to the
second plea which demurrer relied wholly on the constitutional provision.

342 BURR—THE TREATY-MAKING POWER [April 20,

the judges in every State shall be bound thereby, anything in the Constitution,
or laws, of any State to the contrary notwithstanding. There can be no
limitation on the power of the people of the United States. By their author-
ity the State constitutions were made, and by their authority the Constitution
of the United States was established; and they had the power to change or
abolish the State Constitutions, or to make them yield to the general
government, and to treaties made by their authority. A treaty cannot be
the supreme law of the land, that is of all the United States, if any act of a
State legislature can stand in its way. If the Constitution of a State (which
is the fundamental law of the State, and paramount to its legislature) must
give way to a treaty, and fall before it; can it be questioned, whether the less
power, and act of the state legislature, must not be prostrate? It is the
declared will of the people of the United States that every treaty made, by
the authority of the United States, shall be superior to the Constitution and
laws of any individual State; and their will alone is to decide—If a law of a
State, contrary to a treaty, is not void, but voidable only by a repeal, or nulli-
fication by a State legislature, this certain consequence follows, that the will
of a small part of the United States may control or defeat the will of the
whole. The people of America have been pleased to declare, that all treaties
made before the establishment of the National Constitution, or laws of any
of the States, contrary to a treaty, shall be disregarded.

“Four things are apparent on a view of the 6th Article of the National —
Constitution. Ist. That it is retrospective, and is to be considered in the
same light as if the Constitution had been established before the making of
the treaty of 1783. 2nd. That the Constitution, or laws, of any of the States —
so far as either of them shall be found contrary to that treaty are by force of
the said article, prostrated before the treaty. 3rd. That consequently the
treaty of 1783 has superior power to the Legislature of any State, because no
Legislature of any State has any kind of power over Constitution, which was
its creator. 4thly. That it is the declared duty of the State judges to deter-
mine any Constitution, or laws of any State, contrary to that treaty (or any —
other) made under the authority of the United States, null and void. —
National or Federal judges are bound by duty and oath to the same con- |
duct.”""

Mr. Justice Wilson was of the opinion that the treaty, being made —
by Virginia as a State, annulled the confiscation.°* Mr. Justice Ire-
dell expressly disagreed with the other members of the Court as to
the efficacy of the treaty provision independent of the Constitution,
and held that the treaty could only become effective “by a repeal
of the statutes of the different States.’”?®® With respect to the appli-

*” 3 Dallas, pp. 235-7. :

#8 See note 10.
‘1° See note II.

t912.] OF THE UNITED STATES. 343

cability and force of the constitutional provisions Mr. Justice Iredell
continued : :

“ The article in the Constitution concerning treaties I have always con-
sidered, and do now consider, was in consequence of the conflict of opinions
I have mentioned on the subject of the treaty in question. It was found in
this instance, as in many others, that when thirteen different legislatures were
necessary to act in unison on many occasions, it was in vain to expect that -
they would always agree to act as Congress might think it their duty to
require. .. . Similar embarrassments have been found about the treaty.
This was binding in moral obligation, but could not be constitutionally carried
into effect (at least in the opinion of many) so far as acts of legislation then
in being constituted an impediment, but by a repeal. The extreme incon-
veniences felt from such a system dictated the remedy which the Constitu-
tion has now provided, ‘that all treaties made or which shall be made under
the authority of the United States, shall be the supreme law of the land; and
that the judges in every state shall be bound thereby, anything in the Con-
stitution or laws of any state to the contrary notwithstanding.’ Under this
Constitution therefore, so far as a treaty constitutionally is binding, upon
principles of moral obligation, it is also by the vigour of its own authority
to be executed in fact. It would not otherwise be the supreme law in the
new sense provided for, and it was so before in a moral sense.

“ The provision extends to subsisting as well as to future treaties. 1! con-
sider therefore that when this Constitution was ratified, the case as to the
treaty in question stood upon the same footing, as if every act constituting
an impediment to a creditor’s recovery had been expressly repealed, and any
further act passed, which the public obligation had before required, if a
repeal alone would not have been sufficient.”

Such, so far as expressed, were the rationes decidendi of the
judges who sat in this case. The judgment in itself deserves, how-
ever, the most scrupulous examination. It is given in the report
of the case and sustains the demurrer to the second plea. Now, that
demurrer was to the effect that after the incurring of the debt, and
after the passage of the Virginia act, and after the treaty of peace,
“it was by the Constitution of the United States of America, among other
things, expressly declared, that treaties which were then made, or should
thereafter be made, under the authority of the United States, should be the
supreme law of the land, anything in the said Constitution, or of the laws
of any state, to the contrary notwithstanding ;”"™
and that the plaintiff was within the protection of this treaty and
the Constitution. And this demurrer was sustained.

™ 3 Dallas, pp. 276-7.
™ 3 Dallas, p. 204.

344 BURR—THE TREATY-MAKING POWER [April 20,

This case is examined by Professor Mikell with the conclusion
that it “is no authority for the broad proposition that the treaty-
making power is not limited by the reserved rights of the States
—a conclusion based, first, on the fact that the treaty under discus-
sion was one entered into under the Confederation and therefore
that “it might well be that greater force should be allowed to”
such a treaty; and secondly, on the constitutional provision that
States shall not impair contracts. This first conclusion is contrary
to (a) the judgment itself of the Court and (0) the opinions of the
justices; (c) the historical facts respecting treaties made under the
Confederation; (d) the interpretation given to this case in the sub-
sequent decisions of the Supreme Court. The second conclusion is
curious; for when Virginia passed the Confiscation Act, the Consti-
tution was of course not in force. Professor Mikell must mean that
as a confiscation by a State statute cannot now occur, the treaty only
deprived Virginia of the power of doing something later forbidden
by the Constitution ; and hence not a State right today. But this is
only to say that the question then before the Supreme Court in
Ware vs. Hylton could not recur in just that form. But in what
way could the form matter? The principles and considerations in-
volved would be precisely identical, and the authority of this case
equally cogent.?%

But there is yet a further consideration demonstrating that there
is involved in the very tissue of the decision in Ware vs. Hylton a
recognition of the force and supremacy of the treaty provisions of
the Constitution. Whence else came to the court the power to record
its judgment? Assume the treaty of peace to be valid under the
Confederation, as manifestly it was, assume it to be binding on Vir- —
ginia as a State; in what sense was it binding? Surely by force of —
international law and not by virtue of any power in Congress to —
enforce its provisions. Could Congress, by a judiciary it did not |
possess, by a resolution it had no power to enforce, give to the indi- —
vidual British creditor redress? Could such creditor successfully
appeal to a State court? By a fundamental canon of American law —

2 American Law Register, Vol. 57, p. 540.
*8 See note 12.

1912.] OF THE UNITED STATES. 345

the question whether a treaty be in force is a political question for
the executive and legislative, not the judicial power. The only
remedy afforded a creditor was given by the Constitution which
created a judiciary and laid upon it the obligation to enforce treaty-
provisions as the law of the land, supreme over State action. The
very entry of a judgment in Ware vs. Hylton affirmed by its entry
the efficacy of the Constitution and the supremacy of treaties over
States’ rights: except by virtue of the Constitution no judgment
could have been entered. It was a subject of curious interest, it is a
subject of historical study today, to determine how far the treaty of
peace operated of itself to repeal various State statutes in conflict
therewith. In international law, it would seem that Mr. Justice
Chase was right and Mr. Justice Iredell wrong. If the several
States chose to pass statutes and authorize executive acts at
variance with the treaty of peace, a grave breach was made in
international law, but as binding municipal and local law the treaty
was dead. But the question has no practical value. It was the Con-
stitution and the Constitution alone which gave the force of local
law to the treaty, and in the Federal judiciary created an effective
method for its enforcement. When that judiciary acted, its act was
necessarily done under the Constitution and constituted a recognition
and example of its existence and its supreme efficacy.***

One year later there came before the Supreme Court a case
involving one question—
“whether a paper money payment of a British debt into the treasury of

Maryland, during the war, by virtue of a law of the State, was a bar to the
creditor’s recovery at this time.”™”

The reporter adds:

“And the solemn adjudication in Ware vs. Hylton et al, ant. p. 190,
having settled that point, Dallas, for the defendant in error, submitted the
case, without argument, to the Court, who, in general terms, reversed the

™If the suggestion be offered that a distinction is possible between
“treaties made” and “treaties to be made” as the words are used in Article
VI, of the Constitution, and that thé former are to be given more force than
the latter, the only answer is to say that such suggestion lacks any sanction
either in precedent or in reason.

* Clerke vs. Harwoode, 3 Dallas, 342 (1797).

346 BURR—THE TREATY-MAKING POWER [April 20,

judgment of the High Court of Appeals, and affirmed the judgment of the
general Court.”

This case has been generally ignored; it is significant. It came be-
fore the Supreme Court of the United States on writ of error to the
Supreme Court of Appeals of Maryland, where judgment adverse
to the claimant was reversed. In so setting aside the action of the
highest judicial agency of the State, and its declaration that the
treaty was not binding on its citizen, the United States Supreme
Court by its action unequivocally demonstrated that it acted by vir-
tue of the Constitution, and gave effectiveness to the treaty-pro-
visions thereof. If any one could be found to claim that in Ware
vs. Hylton, the Federal court only acted as a Virignia court might
have done, and so its judgment did not necessarily derive its virtue
from the Constitution, this case of Clerke vs. Harwood shows that
no such limitation to the significance of Ware vs. Hylton is possible.
It cannot be gainsaid that the judgments in these causes, once they
be fully analyzed and understood, determine completely and finally
the supremacy of treaty provisions over State law.

The decision in Ware vs. Hylton was prefigured in the consti-
tutional debates; likewise was it with the decision in Fairfax vs.
Hunter.*°° In the Virginia debates Mr. Mason spoke vehemently
upon the subject.

“Tam personally endangered,” he said, “as an inhabitant of the Northern
Neck. The people of that part will be obliged, by the operation of this power,
to pay the quit rents of their lands. Whatever other gentlemen may think, I
consider this as a most serious alarm. . . . Lord Fairfax’s title was clear and
undisputed. After the revolution we taxed his lands as private property.
After his death an act of Assembly was made, in 1782, to sequester the quit
rents due at his death, in the hands of his debtors. Next year an act was
made restoring them to the executor of the proprietor. Subsequent to this —
the treaty of peace was made, by which it was agreed, that there should be ©
no further confiscations. But after this an act of Assembly passed, con-
fiscating this whole property. As Lord Fairfax’s title was indisputably good, ©
and as treaties are to be the supreme law of the land, will not his representa-—
tives be able to recover all in the Federal court? How will gentlemen like to

pay additional tax on lands in the Northern Neck? This the operation of
this system will compel them to do.”””

6 > Cranch, 603 (1812).
** Elliott’s Debates, Vol. II., pp. 387-8.

1912.] OF THE UNITED STATES. 347

The situation had, however, become complicated when there came
before the Supreme Court the title of Lord Fairfax to these lands
in the Northern Neck of Virginia. Fairfax died in 1781, a citizen
of Virginia; in 1782, statutes were passed reciting his death and the
devolution of the estate upon alien enemies, sequestering the quit
rents in the tenants’ hands, and providing for making entries upon
vacant lands within the Northern Neck. After the treaty of peace,
an Act was passed in 1785 which recited that no mode had been
adopted to enable those who had made entries in accordance with
the Act of 1782 to obtain titles, and which then enacted that grants
should be given by the Commonwealth. The defendant claimed
under a State patent issued pursuant to this Act. Under the will of
Lord Fairfax, those estates were devised to one Denny Fairfax, a
British subject. Denny Fairfax himself died during the pendency
of the suit. Mr. Justice Story delivered the opinion of the Court.
He held, first, that the title of Lord Fairfax in 1781 was free from
doubt and in this followed the State decisions. He held, secondly,
that at common law Denny Fairfax, taking as devisee and not as
heir-at-law, “had a complete, though a defeasible title by virtue of the
devise.” He held, thirdly, that the common law had not been altered
by reason of the Virginia statutes. Inasmuch therefore as those
acts rendered necessary by the common law to vest title in the Com-
monwealth had been unperformed, the defeasible title remained in
Denny Fairfax. Mr. Justice Story then continued:

“The real fact appears to have been, that the legislature supposed that
the Commonwealth were in actual seizin and possession of the vacant lands
of Lord Fairfax, either upon the principle that an alien enemy could not take
by devise, or, the belief that the Acts of 1782, ch. 8, and ch. 33, had already
vested the property in the Commonwealth. In either case it was a
mistake. .. .

“ Now, we cannot yield to the argument that Denny Fairfax had no title,
but a mere naked possession or trust estate. In our judgment, by virtue of
the devise to him he held a fee simple in his own right. At the time of the
commencement of this suit (in 1791) he was in complete possession and
seizin of the land. That possession and seizin continued up to and after the
treaty of 1704, which being the supreme law of the land, confirmed the title
to him, his heirs and assigns, and protected him from any forfeiture by

reason of alienage.
“Tt was once in the power of the Commonwealth of Virginia, by an

348 BURR—THE TREATY-MAKING POWER [April 20,

inquest of office or its equivalent, to have vested the estate completely in itself
or its grantee. But it has not so done and its own inchoate title (and of
course the derivative title, if any, of its grantee) has by the operation of the
treaty, become ineffectual and void.’”*

The comments of Professor Mikell upon the case are interesting.
“In Fairfax vs. Hunter, decided in 1812,” he writes,

“Justice Story did indeed say that the treaty of 1794 would have the
effect of rendering void the title to land claimed under an act of the legis-
lature of Virginia. All that he said on this point, however,—and it is com-
prised in a few lines of a long opinion,—is dictum, for he had already
shown, in ten pages of his opinion, that the acts of the legislature did not, in ©
fact, vest any title to the land of the claimant. The question of the power of
the President and Senate to make such a treaty was not argued in this
case,”

One might readily say that where a case is put upon two grounds,
each of which is adequate to sustain the judgment, the reasons
adduced in support of one ground—though it be the last in point
of expression—cannot logically or properly be characterized as
dicta. But in this instance it happens that the efficacy of the treaty
of 1794 was essential to the judgment reached. Professor Mikell’s
zeal has led him into error. To begin with, if rights under the treaty
and the Constitution were not directly in issue and denied by the
State court, in what possible way does Professor Mikell think the
Supreme Court had jurisdiction by writ of error? Does he really
think that the Supreme Court intended to say to the State Supreme
Court: You have erred in interpreting your own statutes; they show
the claimant against Fairfax had no title, on that ground alone we —
reverse? The Supreme Court, as is clear the moment one begins
to think about it, would have no jurisdiction on the very face of its —
opinion to render such a judgment. The point of Mr. Justice Story’s
detailed examination of the Virginia acts is to show that the title of
Denny Fairfax rose to such dignity as to be saved by the treaty —

of 1794. Mr. Justice Johnson’s dissent on this point throws light —
on the real significance of the Court’s decision but Mr. Justice
Story’s words in themselves show his thought:

“The title of Hunter under the grant of 1789,” he says, “cannot be con-

*$ 7 Cranch, pp. 626-7.
° American Law Register, Vol. 57, p. 542.

oat OF THE UNITED STATES. 349

sidered as more extensive than the title of the Commonwealth, viz.: a title
inchoate and imperfect; to be consummated by an actual entry under an in-
quest of office, or its equivalent, a suit and judgment at law by the grantee.”*™”
It was recognized by the court that “ ...a suit and judgment
at law by the grantee” had occurred in the State courts, and juris-
diction to review by writ of error existed only to enforce rights
preserved by the treaty. Mr. Justice Story concluded his opinion
with these words:

“It becomes unnecessary to consider the argument as to the effect of

the death of Denny Fairfax pending the suit, because admitting it to be
correctly applied in general, the treaty of 1794 completely avoids it. The

‘heirs of Denny Fairfax were made capable in law to take from him by

descent, and the freehold was not, therefore, on his death, cast upon the
Commonwealth.”™*

Here is a positive upholding of the efficacy of the treaty of 1794,
essential to the decision. It is most clear under the Virginia law,
already analyzed in this case, that upon the death of an alien his
land qua his heirs-at-law escheated to the Commonwealth. Laconic-
ally, Mr. Justice Story dismissed this contention as avoided by the
treaty of 1794. Apart from that, it was demonstrably sound. Why
was the Court so brief? Because, first, it had already so decided
upon the main contention ; secondly, it seemed to that Court, familiar
with the causes and conditions which had written the treaty clauses
into the Constitution, to be unnecessary to dwell upon the plain
words of Article VI. of the Constitution then unanimously inter-

' preted as meaning what they said.

But Professor Mikell has one more objection to urge to the
binding force of this decision. “The question of the power of the
President and Senate to make such a treaty was not argued in this
case.”*1*, Doubtless it was not. It was necessary that a century
should first pass over the nation, and wipe out the memory of the
humiliating years under the Confederation, the efforts of America’s
early statesmen to cause them to pass and to render it ever impos-
sible for them to recur in her future history, their success in creating

= > Cranch, p. 626.

*“ Tbhid., pp. 627-8.

- ™ American Law Register, Vol. 57, p. 342.
PROC. AMER. PHIL. SOC. LI. 206 T, PRINTED SEPT. 9, I912.

350 BURR—THE TREATY-MAKING POWER [April 20,

the Constitution, the words they spoke in its interpretation, the out-
cry and revolt against the policy of this very treaty of 1794, but
never against its binding though hateful efficacy. May one ask
if Ben Jonson’s words respecting his contemporary Shakespere
lose their force because it was not suggested to him that Shakespere
was Bacon?

In Chirac vs. Chirac,?"* Mr. Chief Justice Marshall delivered
the opinion of the court. The essential facts were that a holder of
real estate in Maryland had died in 1799 leaving as heirs-at-law
certain French citizens. The decedent had acquired the land while
a French citizen and had been naturalized after the adoption of the
Constitution. It was held that the treaty with France of 1778 pro-
tected his title until he became a citizen of the United States. His
death, however, occurred prior to the treaty of 1800; and on this
point the Chief Justice said:

“Had John Baptiste Chirac, the person from whom the land in con-

troversy, descended, lived until this treaty became the law of the land, all
will admit that the provisions which have been stated would, if unrestrained
by other limitations, have vested the estate of which he died seised in his
heirs.”***
It was held that inasmuch as the law of Maryland protected such an
estate for ten years, the treaty operated at once upon its execution
to vest an absolute title in the French heirs, which was not lost by
the subsequent abrogation of the treaty. The discussion of the
meaning and effect of the Maryland acts and of the French treaties
by Mr. Chief Justice Marshall is long and necessarily complex; he
disposes of the fundamental question now examined in the sentence
quoted from his opinion above by one phrase: “all will admit.”
Professor Mikell says of this case also:

“The question of the power of the Federal government to make such a
treaty was not argued by counsel or discussed by the Court.””°

Can any one really believe that an argument on this point would have

effaced from Marshall’s memory the days through which he had ~ q

218 > Wheat., 259 (1817).
74 Tbid., p. 274.
° 23 American Law Register, Vol. 57, p. 542.

1912.] OF THE UNITED STATES. 351

lived, and have served to alter the judicial history of the United
States?

In Orr vs. Hodgson,?"* the efficacy of the treaties of 1783 and
1794, to protect British titles from forfeiture, came before the
Supreme Court. The case was one in equity to enforce a contract
for the sale of lands. The defense was lack of title. One Lucy
Paradise, the elder, by birth a Virginian, inherited the land by devise,
and in 1769, married in England John Paradise, a British subject.
They had one child, Lucy, the younger. She married in Engiand, in
1787, a Venetian subject by whom she had two sons. She died in
Venice in 1800. In 1787 John Paradise and his wife Lucy, the
elder, came to Virginia, but returned in 1789, where he died in 1796.
After his death Lucy, the elder, came to Virginia in 1805, and exer-
-cised the right of ownership over the land in controversy till her
death, intestate, in 1814. She left surviving two nieces, parties to
the suit, and two grandsons in Venice. The defect in the title urged
of importance to us was that Lucy Paradise, the elder, by marrying
a British subject and remaining in England till long after the Revo-
lution because a British subject. Upon this point the Court held:

__ “ Admitting that Lucy Paradise did so become an alien, it is material to
inquire, what effect the treaty of peace of 1783 had upon her case; and upon
the best consideration that we can give to it, we are of opinion that the Sixth
Article of that treaty completely protected her estate from forfeiture, by
way of escheat for the defect of alienage.”™

‘The Court then proceeds to examine the effect of the provisions of
‘the treaty of 1794, and concludes:

“Tt follows, that in this view also, her title was completely confirmed, free
from the taint of alienage; and that by the express terms of the treaty, it
might lawfully pass to her heirs.”™*

The Court concluded that, as a British treaty could not operate to
protect Venetian citizens, the title vested in the nieces. One will
note that the constitutional provision is here applied both to a
™6 4 Wheat., 453 (1819).

™ Ibid., p. 462.
*Tbid., p. 464.

352 BURR—THE TREATY-MAKING POWER [April 20,

treaty made under the Confederation and to a treaty made under the
Constitution.*!”

In Hughes vs. Edwards,**° a bill in equity was filed by British
subjects to recover a mortgage debt, or, in default of payment, to
procure the sale of the mortgaged property. Among the defenses
set up was that of alienage. This defense was disposed of by the
Court as follows: .?

“This objection would not we think avail the appellants, even if the
object of this suit was the recovery of the land itself, since the remedies, as
well as the rights, of these aliens, are completely protected by the treaty of

1794." ae

In Carneal vs. Banks,*?* a bill was filed praying the rescinding of
a contract under which the respondent had agreed to convey certain
land to complainant, on the ground that respondent had no title to
said lands. The decree below was in favor of complainant. The
various assignments of error were considered by the Supreme Court.
One, based on the rescinding of the contract by the lower court by
reason of a misdescription, was sustained, on the ground that such
misdescription was not averred in the bill, and therefore not put in
issue. The Court then continues:

“The alleged alienage of Lacassaign (through whom respondent derived
title) constitutes no objection. Had the fact been proven, this Court decided,
in the case of Chirac vs. Chirac (2 Wheat. 259), that the treaty of 1778
between the United States and France, secures the citizens and subjects of
either power the privilege of holding lands in the territory of the other.’”*”

*° Of this case Professor Mikell says: “ Here again the treaty in question
was a treaty negotiated by the Continental Congress, not by the Senate and
the President. And again the power of Congress, or of the President and
Senate to make such treaty, does not appear to have been argued by counsel,
nor was it discussed by the Court,” pp. 542-3. On the first point, he is
wrong: both treaties were construed. The second argument needs no
further comments. As a matter of fact, counsel in opposition to the force of
the treaties did not appear to argue the case in the Supreme Court.

- 29 Wheat., 489 (1824).

= Tbid., p. 495. Professor Mikell says of this case: “ Again the question
of power was not argued by counsel or examined by the Court,” p. 543. The
report of the case gives the name of counsel but purports to add nothing
concerning ‘the argument.

_ 10 Wheat., 181 (1825).

3 Tbid., p. 180.

1912.] OF THE UNITED STATES. 353

The decree was reversed without prejudice. The language of Mr.
Chief Justice Marshall is not properly to be called dicta. If a good
ground for rescission appeared in the record, reversal would not
have been proper, even though the court below had placed its decision
on the wrong ground. And the reference to the fact of alienage not
being proved, is immaterial; it was alleged and might have been
proved on the second trial.

_ The case of Worcester vs. The State of Georgia®** is one of
both historical and constitutional importance. The Creek and Cher-
okee Indians occupied territory within the State of Georgia under a
series of treaties recognizing their rights to such territory. The
State determined to acquire these Indian lands. By its governor,
supported in large measure by the legislature, it was maintained that
the sovereign rights of the State of Georgia absolutely forbade any
Federal interference with the expulsion of the Indians, although
such expulsion were contrary to the treaty provisions. An indi-
vidual had committed a murder within the Indian territory, and had
been convicted in the State court, and condemned to death. A writ of
error was issued by the Supreme Court of the United States. This
was disregarded, and sentence was executed. Under this existing
situation the case of Worcester vs. The State of Georgia reached the
Supreme Court. The decision rendered therein established the
jurisdiction of the Supreme Court of the United States to examine
on writ of error the criminal process of a State and to set free a
person convicted under the laws of that State on the-ground that
such laws were repugnant to the Constitution, laws, and treaties of
the United States. Above all, it determined that treaties with
Indian tribes came within the constitutional powers. It has signifi-
cance for us here. The Cherokee Indians occupied a portion of
Georgia. The State passed an act forbidding any one under criminai
penalties to reside in that land without a license from the governor
of the State or his agent. Worcester was indicted under this act.
He pleaded the provision of the treaties of the United States with
the Indians and of an Act of Congress, and that the Georgia statute
was unconstitutional and void, being in conflict therewith. His con-

™6 Peters, 515 (1832).

354 BURR—THE TREATY-MAKING POWER [April 20,

viction was sustained in the State court. The Supreme Court of the
United States reversed and ordered his discharge. Said Mr. Chief
Justice Marshall :

“The Constitution, by declaring treaties already made, as well as those
to be made, to be the supreme law of the land, has adopted and sanctioned
the previous treaties with the Indian nations, and consequently admits their
rank among those powers who are capable of making treaties. . . .

“Will these powerful considerations avail the plaintiff in error? We
think they will. He was seized, and forceably carried away, while under
guardianship of treaties guaranteeing the country in which he resided, and
taking it under the protection of the United States. He was seized while
performing, under the sanction of the chief magistrate of the Union, those
duties which the humane policy adopted by Congress had recommended. He
was apprehended, tried, and condemned, under colour of a law which has
been shown to be repugnant to the Constitution, laws, and treaties of the
United States. Had a judgment, liable to the same objections, been rendered
for property, none would question the jurisdiction of this Court.”™

Mr. Justice McLean concurred and said:

“Tt has been shown, that the treaties and laws referred to, come within
the due exercise of the Constitutional powers of the Federal government;
that they remain in full force, and consequently must be considered as the
supreme laws of the land. ... Under the administration of the laws of
Georgia, a citizen of the United States has been deprived of his liberty;
and, claiming protection under the treaties and laws of the United States,
he makes the question, as he has a right to make it, whether the laws of
Georgia, under which he is now suffering an ignominious punishment, are
not repugnant to the Constitution of the United States, and the treaties and
laws made under it. This repugnancy has been shown.””

No recognition was given to the mandate of the Supreme Court upon
its return to the State Court. That court refused to grant the writ
of habeas corpus and Worcester continued in imprisonment. Not
the slightest action was taken to enforce the mandate, or to punish
its violation by either President Jackson or by Congress.*** The
explanation of this most dangerous precedent in the history of the
United States is of course that it constitutes one of the series of —
constitutional violations springing from extreme States’ rights doc-

*Tbid., pp. 559, 562.

*° Tbid., p. 595.

=" “ Constitutional History of the United States,” 1750-1833, von Holst,
PP. 452-5.

1912.] OF THE UNITED STATES. 355

trines which had their end in the Civil War. This case, however,
has full and controlling authority as constitutional precedent today.

Many years passed before the effect of treaties upon State laws
respecting inheritance again came before the Supreme Court. Ac-
cordingly, in Hauenstein vs. Lynham,*** decided in 1879, the Court
carefully reviews the preceding cases. Therein, a resident of Vir-
ginia, but presumably a citizen of Switzerland, had died intestate.
The claimants were admittedly aliens. The Virginia court held
against their claims on the ground that the provisions of the treaty
with Switzerland did not, properly construed, operate to change the
Virginia law, which barred the right of aliens to inherit. The Su-
preme Court held that this was an error in construction, and that the
treaty did so operate. The Court said:

“It remains to consider the effect of the treaty thus construed upon the
rights of the parties. That the laws of the State, irrespective of the treaty
would put the fund into her coffers, is no objection to the right or the remedy
claimed by the plaintiffs in error. The efficacy of the treaty is declared and
guaranteed by the Constitution of the United States. That instrument took
effect on the 4th day of March, 1789."

The Court then quotes with approval**® the language and the deci-
sions in Ware vs. Hylton, Chirac vs. Chirac, Carneal vs. Banks,
Hughes vs. Edwards, and Orr vs. Hodgson; and concludes thus:

“We have no doubt that this treaty is within the treaty-making power
conferred by the Constitution, and it is our duty to give it full effect.”™

In the case of Maiorano vs. B. & O. R. R. Co.,?3? the Supreme
Court of Pennsylvania had held that the proper construction of an
Act of that State providing that a right of action in favor of relatives
should exist for damages for death by negligence did not extend its
benefits to alien relatives. On appeal to the Supreme Court of the
United States, that Court said:

“The only question for our decision is whether a proper interpretation
and effect were allowed to the treaty.

“We do not deem it necessary to consider the constitutional limits of the
treaty-making power. A treaty, within those limits, by the express words of

=5100 U. S., 483 (1879). ™ Thid., p. 490.
™ Ibid., p. 488. ™ 213 U. S., 268 (1909).
™ See note 13.

356 BURR—THE TREATY-MAKING POWER [April 20,

the Constitution, is the supreme law of the land, binding alike National and —
State Courts, and is capable of enforcement, and must be enforced by them i in
the litigation of private rights... .

“We put our decision upon the words of the treaty. By a fair inter-
pretation of them, did they directly confer upon the plaintiff the right —
which she seeks to maintain? We are of the opinion that they did not’
Such is the unbroken series of cases decided by the Supreme Court
of the United States, recognizing, stating, and enforcing the absolute
supremacy of treaty provisions over State laws. No case has ever in
the history of the United States been decided, which holds, for any
reason or under any conditions a treaty provision to be subore
to a State law or State right.

IV.

There remains, however, for consideration all that has been said
or suggested in the way of possible or contingent limitations of the
treaty-making power in favor of State rights. In this connection
must be considered, first, the language of Mr. Chief Justice Taney
in Prevost vs. Greneaux*** and a curious statement by the same
judge in Frederickson vs. Louisiana; and second, all that has been
urged respecting the immunity of the so-called police power of the
States from Federal control. Be.

Prevost vs. Greneaux came before the Supreme Court in 1856.
In 1848 one Francois Marie Prevost, a citizen of Louisiana, died,
leaving a large estate. By the existing laws of that State a tax of ten
per cent. was imposed on all property inherited by aliens not domi-
ciled in Louisiana. In 1853 a treaty with France became effective
providing : Pau

“In all the States of the Union whose laws permit it, so long and to the
same extent as the said laws shall remain in force, Frenchmen shall enjoy the
right of possession personal and real property by the same title and in
same manner as the citizens of the United States. They shall be free to dis-
pose of it as they may please, either gratuitously or for value received, by
donation, testament, or otherwise, just as those citizens themselves; and in
no case shall they be subjected to taxes on transfers, inheritance, or any

others, different from those paid by the latter, or to taxes which shall not bi
equally imposed.”

*8 Tbid., pp. 272-3.
** 19 How., 1 (1855).

1912.] OF THE UNITED STATES. 357

In 1854 Jean Louis Prevost, a French subject residing in France,
claimed as sole heir and proved his right. The State Supreme Court
held

“that the right to the tax was complete, and vested in the State upon the

death of Francois Marie Prevost, and was not affected by the treaty with
France subsequently made.”

In affirming the judgment, Mr. Chief Justice Taney said:

“We can see no valid objection to this judgment. . . . If the property
vested [as was admitted] in him [the heir] at that time [the death of the
decedent], it could vest only in the manner, upon the conditions authorized
by the laws of the State. And, by the laws of the State, as they then stood.
it vested in him, subject to a tax of ten per cent. payable to the State. And
certainly a treaty, subsequently made by the United States with France.
could not divest rights of property already vested in the State, even if the
words of the treaty had imported such an intention. But the words of the
Article, which we have already set forth, clearly apply to cases happening
afterwards—not to cases where the party appeared after the treaty, to assert
his rights, but to cases where the right afterwards accrued. And so it was
decided by the Supreme Court of the State, and we think, rightly.”"~
There can be no question but that the remarks of Mr. Chief Justice
Taney are directly contrary to the decision in Ware vs. Hylton.?**
Whether he recognized it to be so, inasmuch as he did not refer to
that case, is questionable. But if the analysis heretofore made have
any weight, it has been shown that the constitutional provision when
inserted was intended to have a retroactive force, and was in Ware
vs. Hylton given the significance and efficacy advocated by its
framers and contemporary interpreters. The failure of Mr. Chief
Justice Taney to appreciate the persuasive quality of the logic of
that case and its binding force is characteristic of his political atti-
tudes. His words, however, are rendered negligible by the later
opinion of the Court in Hauenstein vs. Lynham, wherein the decision
in Ware vs. Hylton is specifically approved and reaffirmed.

“It will be observed,” said the Court, “that the treaty-making clause is
retroactive as well as prospective. The treaty in question, in Ware vs. Hyl-

= Tbid., p. 7.

Tt is also interesting to note that in Geofroy vs. Riggs, 133 U. S., 256
(1889), infra pages 75-6, the interpretation placed by the Court in a fully

reasoned opinion on this French treaty of 1853 is wholly at variance with that
of Mr. Chief Justice Taney.

358 BURR—THE TREATY-MAKING POWER [April 20,

ton, was the British treaty of 1783, which terminated the War of the Amer-
ican Revolution. It was made while the Articles of Confederation subsisted, —
The Constitution, when adopted, applied to treaties ‘made and to be made.” ”™*

In Frederickson vs. Louisiana?®’ the facts are immaterial to this
discussion, but the Court after disposing of the case on other —
grounds, said:

“Tt has been suggested in the argument of this case, that the government
of the United States is incompetent to regulate testamentary dispositions or
laws of inheritance of foreigners, in reference to property within the States

“The question is one of great magnitude, but it is not important in the ~
decision of this cause, and we consequently abstain from entering upon its —
consideration.”

In view of the long series of cases already decided, which have been
analyzed above, these statements are surprising. The later case of |
Hauenstein vs. Lynham, however, deprives them of practical sig-
nificance. . 3
In Holmes ws. Jennison,”*° decided in 1840, we have voiced by
Mr. Justice Baldwin that idea which has since been welcome to
many: namely, that the treaty-making power is subject to what 1 is
called the police power of the State.

“Tt is but a poor and meager remnant of the once sovereign power of
the States, a miserable shred and patch of independence, which the Constitu-
tion has not taken from them, if in the regulation of its internal police
State sovereignty has become so shorn of authority, as to be competent only
to exclude paupers, who may be a burden on the pockets of its citizens;
unsound, infectious articles, or diseases which may affect their bodily health;
and utterly powerless to exclude those moral ulcers on the body political,
which corrupt its vitals and demoralize its members. If there is any one ©
subject on which this Court should abstain from any course of reasoning, —
tending to expand the granted powers of the Constitution, so as to bring
internal police within the law of treaty-making power of the United States.
by including it within the prohibition on the States, it is the one now before ©
us. Nay, if such construction is not unavoidable, it ought not to be given;
lest we introduce into the Constitution a more vital and pestilential disease
than any principle on which the relator could be rescued from the police
power of Vermont, would fasten on its institutions, dangerous as it might
be, or injurious its effects.”™

We have in these words expressed in its most enthusiastic form,

*7 100 U. S., p. 480. * Thid., p. 448.
_ 823 How., 445 (1859). * 14 Peters, 540 (1840).
“ Thid., p. 618.

1912.] OF THE UNITED STATES. 359

the doctrine of the supremacy of the State police power. It had
been more briefly enunciated in an earlier case, however, in which no
reference was had to the treaty power. In New York vs. Miln?*
the Court said:

“We choose rather to plant ourselves on what we consider impregnable
positions. They are these: . . . That all those powers which relate to merely
municipal legislation, or what may, perhaps, more properly be called internal
police, are not thus surrendered or restrained; and that, consequently, in
relation to these, the authority of a State is complete, unqualified and
exclusive.”™*

In the so-called License Cases*** the States of Massachusetts,
Rhode Island and New Hampshire had passed statutes in the nature
of prohibition acts. Under them convictions had been had, which
were sustained in the Supreme Court. It was urged that the Acts
were unconstitutional attempts to regulate commerce and were in
conflict with treaty stipulations; they were defended as having been
passed in the exercise of the State police power. In the Rhode
Island case, the brandy purchased by the indicted defendant was in
the original package in which it had been imported from France.
It was unanimously held that the State laws were all constitutional,
and that the treaties did not by their proper construction apply.
Six justices delivered opinions, differing from one another in the
reasons adduced for sustaining the constitutionality of the Acts. And
in subsequent opinions they again differed as to what were or what
were not the rationes decidendi of the case. From those opinions
may be collected expressions of belief in the supremacy of State
police powers. Said Mr. Justice McLean:

“The Federal government is supreme within the scope of its delegated
powers, and the State governments are equally supreme in the exercise of
those powers not delegated by them nor inhibited to them. From this it is
clear, that while the supreme functions are exercised by the Federal and
State governments within their respective limitations, they can never come
in conflict. And when a conflict occurs, the inquiry must necessarily be,
which is the paramount law... .

“When in the appropriate exercise of these Federal and State powers,
contingently and incidentally their lines of action run into each other; if the

State power be necessary to the preservation of the morals, the health, or
safety of the community, it must be maintained.”

*2 11 Peters, 102 (1837). 5 How., 504 (1847).
* Tbid., p. 139. *“ Tbid., pp. 587, 592.

360 BURR—THE TREATY-MAKING POWER [April 20, ‘

Said Mr. Justice Daniel:

“Laws of the United States in order to be binding, must be within the
legitimate powers vested by the Constitution. Treaties, to be valid, must
made within the scope of the same powers; for there can be no ‘authority
of the United States,’ save what is derived mediately or immediately and
regularly and legitimately from the Constitution. A treaty, no more than
an ordinary statute, can arbitrarily cede away any one right of a State ° oO
any citizen of a State.”

Mr. Justice Grier repeated the quotation from New York vs. Miln.
already given above,?** and concluded: a

“Tf the right to control these subjects be ‘complete, unqualiiel
exclusive’ in the State legislatures, no regulations of secondary im
can supersede or restrain their operations, on any ground or prerogativ

executed patos and above all others.’

declared unconstitutional, statutes of New York and Massach s
attempting inter alia to levy a tax on every alien coming int
state, although the proceeds of that tax were declared to
for the purpose of creating a fund for charitable purposes
nected with immigration. Four judges dissented. From
opinions additional expressions of the inviolability of the State p
power may be gathered. Said Mr. Chief Justice Taney: |

“The first inquiry is, whether under the Constitution of the |
States, the Federal government has the power to compel the several
to receive and suffer to remain in association with its citizens, every
or class of persons whom it may be the policy or pleasure of the
States to admit....If the people of the several States of this
reserved to themselves the power of expelling from their borders any
or class of persons, whom it might deem dangerous to its peace, or
produce a physical or moral evil among its citizens, then any treaty
of Congress invading this right and authorizing the introduction of
person for description of persons against the consent of the State we
an usurpation of power which this Court could neither recognize
enforce.

“JT had supposed this question not now open to dispute.

*° Tbid., pp. 612-3. 7 How., 283 (1849).
* Supra, p. 169. *° Thid., pp. 465-6.
"5 How., p: 632.

99250

1912.] OF THE UNITED STATES. 361

Said Mr. Justice Daniel:

“ Admitting this Fourteenth Article of the treaty to be in full force, and
that it purported to take from the State of New York the right to tax
aliens coming and commorant within her territory, it would be certaintly in-
competent for such a purpose, because there is not, and never could have
been, any right in any other agent than her own government to bind her by
such a stipulation.”™

Said Mr. Justice Woodbury:

“Measures which are legitimately of a police character are not pre-
tended to be ceded anywhere in the Constitution to the general government
in express terms: and as little can it be argued that they are impliedly to be
considered as ceded, if they be honestly and truly police measures.”™
Before examining into the circumstances under which the above
expressions of judicial opinion have occurred and into the question
how far the development of constitutional law has sanctioned or
refuted their authority, it may be well to summarize the conclusions
from our detailed analysis of decisions. These fundamental con-
clusions are three in number:

First: That a treaty provision having such expressed intention,
will of its own force, operate as a Federal legislative act, and that
this principle obtains even though the subject of the treaty provision
be one committed by the Constitution to the legislation of Congress;

Second: That acts of Congress and treaty provisions stand under
the Constitution on an equal footing, and that the last expression of
the Federal will, be it by statute or by treaty, must prevail;

Third: That treaty provisions may deal with subjects not com-
mitted to the legislation of Congress, and that, when so declaratory
of the Federal will, they operate of their own force to annul the
constitution or law of any State in conflict therewith.

The question presented is, whether an exception exists to the
third conclusion, and specifically, whether it be true that treaty pro-
visions conflicting with the exercise of its police power by a State,
are beyond the power of the Federal government, and consequently
invalid. That question at perhaps tedious length but with an effort
toward complete analysis we will now attempt to determine.

= Tbhid., p. 507.
= Thid., p. 524.

362 BURR—THE TREATY-MAKING POWER [April 20,

There is, however, a preliminary point which should be eluci-
dated. It will have been observed that while considering the series
of cases illustrating and establishing the supremacy of treaty pro-
visions over State laws, the effect of the Tenth Amendment to the
constitution was not considered. It has, however, been made of
much importance by those who have advocated the supremacy of
State rights, which rights they have called by virtue of this amend-
ment, “the reserved rights of the States.” The amendment is in
these words:

“The powers not delegated to the United States by the Constitution, nor —

prohibited by it to the States, are reserved to the States respectively, or to
the people.”

At the time of analyzing the cases referred to, this amendment was

purposely not discussed because it was deemed to be wholly im-
material. The constitutional debates, and the political literature of —
that day show conclusively that the authors of the Constitution —
regarded the Federal government as one essentially of enumerated —
powers, apart from any and all amendments. The Tenth was Ee
adopted merely as declaratory of the interpretation which must prop- —
erly in all events have been given to the Constitution, and to free the
minds: of certain persons who considered that the agreement of all
parties that the Federal government was one of enumerated powers —
only, should be placed beyond the possibility of future and wrongful —
breach. It was considered to have, and it did have, no repealing
or modifying force on the provisions of the Constitution itself.
Throughout the debates, Federal and State, leading to the adoption
of the Constitution or looking toward its amendment, one may search
in vain for any suggestion that the limitations therein provided had
any reference to the treaty power. The very language of the amend-
ment would seem to establish this fact. What are the powers re-
served to the States thereby? ‘The powers,” first, says the amend-
ment, “not delegated to the United States,’ and second, adds the
amendment, not “ prohibited by it to the States.” Now, by the Con-
stitution the power to make treaties is specifically granted to the
Federal government in the Second Section of the Second Article, and
specifically prohibited to the States by the Tenth Section of the First

1912.] OF THE UNITED STATES. 363

Article. A mediaeval theologian alone—and his logic is not the kind
used today—could demonstrate that with both exceptions named in
- the amendment specifically existing, such amendment was none the
less effective in limitation of the treaty-making power. The re-
served rights of the States are necessarily and by virtue of the very
words of the Tenth Amendment, those rights which remain after
the grant, first, of the treaty-making power, and, second, of the
power to Congress to legislate upon certain subjects. The Tenth
Amendment, therefore, leaves the treaty-making power of the United
States unaltered and precisely as granted by the Constitution.
The most cursory examination of the judicial opinions quoted
_ above on the supremacy of State police power, shows that this
supremacy was maintained alike over treaty provision and act of
Congress. No superior efficacy is claimed for act of Congress or
_ for treaty. It is Federal supremacy which is challenged, and the
_ manner of its manifestation is indifferent. It must of necessity be
4 so; for in the Sixth Article of the Constitution “the laws of the
_ United States which shall be made in pursuance” of the Constitu-
tion, and “all treaties made, or which shall be made, under the
authority of the United States” are placed on equal footing, and
given the same efficacy. The treaty power may deal with subjects
_ which have been the subjects of congressional legislation; it may
_ deal also with subjects beyond the legislation of Congress. But the
_ question is not one of the extent of the treaty-making power, or of
congressional action; that is determined; the treaty-making power
must act upon subjects properly and customarily the subjects of
treaty ; congressional action must be within the constitutionally dele-
gated powers. The question is essentially one of the effectiveness
of treaty provision or of act of Congress when in conflict with State
_ police power; and no more efficacy and no less can be claimed for
treaty provision than for act of Congress. Inasmuch as the doctrine
_ that the police power is an inviolable attribute of State sovereignty,
"and beyond the sphere of activity of Federal treaty and Federal law
alike, it is essential that any analysis of the subject should extend to
both manifestations of Federal activity. What is true of the effec-
tiveness of one is inevitably true of the effectiveness of the other.

364 BURR—THE TREATY-MAKING POWER [April 20,

Attempts at defining the term police power have been many.
We should not, however, be here tempted to essay it; for our object
rather is to understand how the term has been used by others, and —
diversely indeed has it been used. In order to carry in mind, while —
reviewing the language of the courts, the various significations at-
tached to the term, it will be well to indicate several. From one —
point of view—a view sanctioned by the etymological and probably
historical origin of the term—the meaning given is equivalent to
that of municipal law; all that body of law which we have come to
regard as local, in contradistinction to what we conceive is properly |
national or international law. Again, viewing the subject from the
peculiar point of view of the constitutional student, the term has
been used, sometimes by members of the judiciary, to comprise no
more and no less than the reserved powers of the States. The diffi-
culty with this view is that it affords no means whatever of identi-
fying those powers, but only gives to them a new name. Thirdly,
the police power is said to be that power which provides for the
public safety and welfare. This is perhaps the most popular view,
but the difficulty is that almost any measure appropriate to be
adopted, can be justified as intended to further the public welfare.

Examining into the development of the use of the term, one —
notes in the Federal Constitutional Convention that a resolution was
proposed and rejected giving to Congress the power “to make laws
binding on the people” of the United States “in all cases which may
concern the common interests of the Union; but not to interfere
with the government of the individual States in any matters of
internal police which respect the government of such States only,
and wherein the general welfare of the United States is not con-
cerned.”?° Again, on the day when the Convention adjourned, a
motion was made and defeated to insert in the Constitution a pri
viso “that no State shall, without its consent, be affected in its in-
ternal police, or deprived of its equal suffrage in the Senate.”** In_
1824, the great constitutional case of Gibbons vs. Ogden?’ w

*° Farrand, Vol. II., p. 21. .

™ Tbid., p. 630. ;

. © 9 Wheat., I (1824). 8

1912.] OF THE UNITED STATES. 365

decided, and therein the conception of the State police power was
further developed and elucidated. The question at issue was the
validity of an Act of New York granting to Fulton and another ex-
clusive rights to navigate the waters of the State in vessels pro-
pelled by fire or steam. It had been argued that the cases sustaining
State statutes of quarantine were readily distinguishable. In reply
to this argument, counsel argued as follows in support of the State
law:

“The quarantine laws further illustrate our position. The appellant’s
counsel says, these are to be considered merely as laws of police; they are
laws of police, but they are also laws of commerce; for such is the nature of

that commerce, which we are told must be regulated exclusively by Congress,
that it enters into, and mixes itself with, almost all the concerns of life.”™’

Mr. Chief Justice Marshall, in delivering the unanimous decision of
the Court declaring the unconstitutionality of the New York law,
so clearly and so logically stated the functions and status of the
police powers of a State, that the subsequent confusion of thought
upon this subject of so many judges must cause one to wonder at
the possibility. It is, however, but one more illustration of the
vagaries of interpretation to which fixed political convictions may
lead even the judiciary. Said Mr. Chief Justice Marshall:

“Since, however, in exercising the power of regulating their own purely
_ internal affairs, whether of trading or police, the States may sometimes enact
laws, the validity of which depends on their interfering with, and being con-
trary to, an act of Congress passed in pursuance of the Constitution, the
Court will enter upon the inquiry, whether the laws of New York, as ex-
pounded by the highest tribunal of that State, have, in their application to
this case, come into collision with an Act of Congress, and deprived a citizen
of a right to which that Act entitles him. Should this collision exist, it will
be immaterial, whether those laws were passed in virtue of a concurrent
power ‘to regulate commerce with foreign nations and among the several
States,’ or in virtue of a power to regulate their domestic trade and police.
In one case and the other, the Acts of New York must yield to the law of
Congress; and the decision sustaining the privilege they confer, against a
right given by a law of the Union, must be erroneous. This opinion has been
_ frequently expressed in this Court, and is founded, as well on the nature
of the government, as on the words of the Constitution. In argument, how-
ever, it has been contended, that if a law passed by a State in the exercise of
its acknowledged sovereignty, comes into conflict with a law passed by

* Tbid., p. I12.
PROC. AMER. PHIL. SOC., LI, 206 U, PRINTED SEPT 9, 1912.

Co ee BURR—THE TREATY-MAKING POWER [April 20,

Congress in pursuance of the Constitution, they affect the subject, and each
other, like equal opposing powers. But the framers of our Constitution
foresaw this state of things, and provided for it, by declaring the supremacy —
not only of itself, but of the laws made in pursuance of it.

“The nullity of any Act, inconsistent with the Constitution is produced
by the declaration, that the Constitution is the supreme law. The appro-
priate application of that part of the clause which confers the same
supremacy on laws and treaties, is to such acts of the State legislatures as
do not transcend their powers, but though enacted in the execution of
acknowledged State powers, interfere with, or are contrary to, the laws of
Congress, made in pursuance of the Constitution, or some treaty made under
the authority of the United States. In every such case, the Act of Congress.
or the treaty, is supreme; and the law of the State, though enacted in the ©
exercise of powers not controverted, must yield to it.””"

With this one decision and this one exposition of the relations —
between the Federal powers and the State police power, a complete
understanding of the subject might well begin and end. But as an
historical review is essential here, we may carry with us Marshall’s
words in somewhat the fashion that Matthew Arnold advised the |
student of poetry to store up in his mind the great utterances of ©
great poets to serve as an infallible test.
Brown vs. Maryland,?** another great constitutional case, was
decided in 1827. The State statute had required all importers of
foreign goods and all persons selling the same to take out a license.
The statute was held unconstitutional, and imported articles were
said to remain articles of commerce free from State legislation and
subject only to the power of Congress to regulate commerce, so long
as they remained in the original unbroken packages in which they
were shipped. In the course of his opinion Mr. Chief Justice
Marshall said: 5
“The power to direct the removal of gunpowder is a branch of the
police power, which unquestionably remains and ought to remain, with the
States. ....We are not sure, that this may not be classed among inspection —
laws. The removal or destruction of infectious or unsound articles is,
doubtedly, an exercise of that power, and forms an express exception to |

prohibition we are considering. Indeed, the laws of the United States ex-
pressly sanction the health laws of a State.”””

** Thid., pp. 209-11.
7 12 Wheat., 419 (1827).
*° Thid., p. 442.

1912.] OF THE UNITED STATES. 367

yg John Marshall died in 1835, and within less than two years after
his death the case of New York vs. Miln?*’ was decided. The State
__ had enacted, first, that the master of every vessel arriving in New
_ York should make a report in writing of all passengers whom he had
_ landed, or who had departed from his vessel with a view to subse-
_ quently reaching New York; and secondly, that the master of such
vessel should give bond for each passenger or child thereon that
none should become a charge on the city. Said the Court:

“We are of opinion that the Act is not a regulation of commerce, but of
~ police; and that being thus considered, it was passed in the exercise of a
power which rightfully belonged to the State.”™
Gibbons vs. Ogden and Brown vs. Maryland are formally approved
and declared to be wholly consistent with the decision rendered ; and
in language already quoted, the Court say:

_ “All these powers which relate to merely municipal legislation, or what
may, perhaps, more properly be called internal police,“ are not thus sur-
rendered or sustained [by the Constitution]; . . . consequently, in relation
to these, the authority of a State is complete, unqualified and exclusive.”™

In so arguing, the Court fails to see that it is dangerously near to
the logical fallacy: petitio principii. It will not logically do to say:
The police powers belong to the reserved rights of the States—the
act in question is an exercise of the police power—therefore it is
constitutional. For it might well be that an act passed by a State
under its power of “internal police” might operate to regulate
commerce, entirely apart from the motives of its authurs or the
main object it subserved. As Mr. Chief Justice Marshall had simply,
but with inspired penetration, said: The Federal power to regulate
commerce “is co-extensive with the subject on which it acts and
cannot be stopped at the external boundary of a State, but must
enter its interior.”*** The question was not, could not be, whether
the act in question was an exercise of the police power of the State.
It might well be regarded, and properly, as such an act. The ques-
tion was inevitably: Was the statute invalid, although an exercise
_of the police power, inasmuch as it infringed on the power of Con-
™ 11 Peters, 10a (1837). *311 Peters, p. 239.

ae Sad, DB. 1352. = 12 Wheat., p. 446.
*= Italics are in the opinion.

368 BURR—THE TREATY-MAKING POWER [April 20,

gress to regulate commerce, and so was a part of the police power
ceded by the States to the Federal government. The moment one
defines the police power as equivalent to internal police, that moment —
the question of the constitutionality of a State statute becomes, not:
Is the statute an exercise of the State police power? but: Does the
exercise of the police power involve a conflict with powers given by :
the Constitution to the Federal government ? | 4

A portion of the opinion of Mr. Justice Baldwin in Holmes vs.
Jennison has been quoted.?® That case followed New York vs. 4
Miln and contains as full and complete enunciation of the doctrine
of the inviolability of State police power as exists. The action arose
on the attempt made by the governor of Vermont to extradite the —
defendant to Canada. No treaty covered the case. The writ of —
error was dismissed for want of jurisdiction by a divided Court. —
But the difficulty with insisting on the validity of the views of Mr. |
Justice Baldwin therein contained:as to the inviolability of ‘State
police powers, is that the opinion of Mr. Chief Justice Taney, and
of the other justices who differed with Mr. Justice Baldwin,2** has
been the opinion to prevail in the history of constitutional law in the
United States. To this effect was the decision in United States us.
Rauscher,?*" decided in 1886. Certainly, Mr. Justice Baldwin was
right in thinking the act of the Governor of Vermont an exercise of
State police power. But it was none the less violative of the Consti-
tution. The true solution is that the police powers of a State are,
like all other of its powers, subject to the controlling influence o
all acts done in pursuance of the Federal Constitution. One cannot
return too often to the language of Mr. Chief Justice Marshall in
Gibbons vs. Ogden, where he said:

“In argument, however, it has been contended, that if a law passed by a
State, in the exercise of its acknowledged sovereignty, comes into cone

the subject, and each other, like equal opposing powers. But the framers

°° Supra, pp. 167-169.
Wea careful analysis of this case will demonstrate that Mr. Jus “e

the prisoner—Ex parte Holmes, 12 Vermont, 631 (1840).
*7 119: U. S., 407 (1886), supra, pp. 73-74.

1912.] OF THE UNITED STATES. 369

our Constitution foresaw this state of things, and provided for it, by declar-
ing the supremacy not only of itself, but of the laws made in pursuance of it.
“The nullity of any act, inconsistent with the Constitution, is produced
by the declaration, that the Constitution is the supreme law. The appropriate
application of that part of the clause which confers the same supremacy on
laws and treaties, is to such acts of the State legislatures as do not transcend
their powers, but though enacted in the execution of acknowledged State
powers, interfere with, or are contrary to, the laws of Congress, made in
pursuance of the Constitution, or some treaty made under the authority of
_ the United States. In every such case, the act of Congress, or the treaty, is
supreme; and the law of the State, though enacted in the exercise of powers
not controverted, must yield to it.”™
The language of three of the members of the Court in the License
Cases has already been quoted.**° These cases require examination.
In them were involved statutes of Massachusetts, Rhode Island, and
New Hampshire, which were in the natureof prohibition acts. In
the Rhode Island case the brandy purchased by the indicted defen-
dant was in the original package in which it had been imported from
_ France. All were held to be the constitutional exercise by the States
of their police powers. These same constitutional questions came
again before the Supreme Court in a series of cases culminating in
that of Leisy vs. Hardin,?° and therein this New Hampshire case
was specifically disapproved and overruled. The decision was that
a prohibition statute, as applied to sales by an importer from another
__ State of liquors in the original packages, was unconstitutional. It is
_ based upon the reasoning of Mr. Chief Justice Marshall in Gibbons
vs. Ogden and Brown vs. Maryland, and concludes thus:

“As the grant of the power to regulate commerce among the States, so
far as one system is required, is exclusive, the States cannot exercise that
power without the assent of Congress, and, in the absence of legislation, it
is left for the Courts to determine when State action does or does not
amount to such exercise, or, in other words, what is or is not a regulation of
such commerce. When that is determined, controversy is at an end.”™
The decision is emphasized by the dissenting reasoning of Mr.
Justice Gray, with whom concurred Mr. Justice Harlan and Mr.
Justice Brewer. He argued that the State statute was an exercise of
the police power, and that, while it might affect commerce, yet there
** 9 Wheat., pp. 210-1. ™ 135 U.S., 100 (1890).

* Supra, pp. 170-172. ™ Thid., p. 119.

370 BURR—THE TREATY-MAKING POWER [April 20,

should not be inferred from the silence of Congress upon the subject:
any intention that commerce should be free from the operation of
laws passed by a State in the exercise of its police powers. Con-
sequently, until Congress acted, the State statute was valid. Said
Mr. Justice Gray:

“The protection of the safety, the health, the morals, the good order and
the general welfare of the people is the chief end of government. Salus
populi suprema lex. The police power is inherent in the States, reserved to
them by the Constitution, and necessary to their existence as organized gov- —
ernments. The Constitution of the United States and the laws made in
pursuance thereof being the supreme law of the land, all statutes of a State
must, of course, give way, so far as they are repugnant to the national
Constitution and laws. But an intention is not lightly to be imputed to the
framers of the Constitution, or to the Congress of the United States, to
subordinate the protection of the safety, health and morals of the people to
the promotion of trade and commerce.”””

We have thus the unanimous acquiescence by the Coart in the doc-
trine that whenever a conflict occurs between constitutional acts of —
the United States and State police powers operating upon the same
subject, the State police power must yield. In other words, the police
power of the States is subject to treaty provision and constitutional
act of Congress.?** And if one choose, this being true, to apply no
longer the term police power to the source of the State’s activity,
the difference is one of words only. The thought of Mr. Justice
Gray was the same which Mr. Chief Justice Taney had expreaaae
in the License Cases.
“What are the police powers of a State?” asked Mr. Chief Justiee
Taney. He answered: “They are nothing more or less than the powers of
government inherent in every sovereignty to the extent of its dominions.
And whether a State passes a quarantine law, or a law to punish offenses,
to establish Courts of Justice, or requiring certain instruments to be recor
or to regulate commerce within its own limits, in every case it exercises t
same powers; that is to say, the power of sovereignty, the power to gove
men and things within the limits of its dominion. It is by virtue of
power that it legislates; and its authority to make regulations of comme
is as absolute as its power to pass health laws, except in so far as it has b

restricted by the Constitution of the United States. And when the valic
of a State law making regulations of commerce is drawn into question i @

2 Tbid., pp. 132, 158.
* 3 See note I4.

1912.] OF THE UNITED STATES. 371

judicial tribunal, the authority to pass it cannot be made to depend upon the
motives that may be supposed to have influenced the legislature, nor can the
Court inquire whether it was intended to guard the citizens of the State from
pestilence and disease, or to make regulations of commerce for the interests
and convenience of trade.

“Upon this question the object and motive of the State are of no im-
portance, and cannot influence the decision. It is a question of power.”™
Mr. Chief Justice Taney concluded in these License Cases that Con-
gress had passed no law upon the subject, that the federal govern-
ment had entered into no treaties, that in their absence and only in
their absence the statutes were valid.

Certain of the judges in these License Cases, however, gave voice
to opinions on the supremacy of the police power which we have
already quoted.

“When in the appropriate exercise,” said Mr. Justice McLean, “of these
Federal and State powers, contingently and incidentally their lines of action
run into each other; if the State power be necessary to the preservation of the
morals, the health, or safety of the community, it must be maintained.”
Without grave qualification of his language, Mr. Justice McLean,
as is seen in Leisy vs. Hardin, was wrong. The language of Mr.
Justice Daniel is in itself unexceptional.?** If he meant more than
his words necessarily imply, and intended to convey the idea that
treaty provisions and acts of Congress were arbitrary and void if
they operated upon the police powers of the State, he was out of
sympathy with the subsequent development of constitutional law, as
illustrated in Leisy vs. Hardin, and his opinion has only an his-
torical interest for us here. The lack of really authoritative force
in his words may be gathered from this additional quotation from
his opinion :

“The doctrines which to me appear to have been gratuitously brought
_ into this case are those which have been promulgated in the reasoning of this
Court in the case of Brown vs. The State of Maryland—doctrines (and I
speak it with all due respect) which I conceive cannot, by correct induction,
be derived from the Constitution, nor even from the grounds assumed for

their foundation in the reasoning of the Court in that case; but which, on
the contrary, appear to be wholly illogical and arbitrary.”*"

45 How., p. 582. 8 Supra, p. 170.
*5 Tbid., p. 592. 5 How., p. 611.

372 BURR—THE TREATY-MAKING POWER [April 20,

The language used by Mr. Justice Grier needs no extended com-
ment.278 Like that of Mr. Justice Daniel, it sprang from certain —
political convictions of the times, and has not been sanctioned by
the development of constitutional law.

The opinions of the dissenting judges in the Passenger Cases?”
cannot be regarded as possessed of authoritative force. It was
urged by them that a tax on every alien coming into a State port was
a proper exercise of the police power beyond the control of the :
Federal government whether operating by act of Congress or by —
treaty provision, because the tax was devoted to charitable uses; —
in one case, a marine hospital; in the other, the support of foreign —
paupers. The judgments were against the constitutionality of the
acts, and inasmuch as the whole current of constitutional law has
since moved irresistibly in this direction, these dissenting opinions, —
like the majority of the others we have been considering, have only
an historical interest. The kind of argument which was so popular
and so potent during the period from John Marshall’s death to the
Civil War, whose coloring influence may be seen reflected in such
opinions, is well exemplified in these Passenger Cases. Said counsel
for New York of the State he represented:

“She saw with unaffected concern the prodigious strides made by this
power to regulate commerce towards engrossing and consolidating the :
power of the Union. This may well be regarded as the mastodon of con-—
struction, starting from this bench, and in its giant strides trampling upon
the rights of the States and their sovereignty. Fortunately, it is only known
to the present day by its colossal bones, scattered through the reports
the early opinions of members of this Court. Its march was arrested, its li
terminated, in New York vs. Miln. The noble ground then assumed wa
maintained in the License Cases.””” a
A careful reflection upon the implications underlying these words
and upon the magnitude of interstate commerce today, will do much
to put a just valuation upon the opinions of many of the judges who
immediately succeeded John Marshall.

We thus reach the conclusion of an analysis of the decision:

78 Supra, p. 171.
7 > How., 282 (1849).
“ Thid., pp. 378-9.

1912.] OF THE UNITED STATES. 373

__upon the effectiveness of act of Congress and treaty provision when
3 in conflict with an exercise of State police power. We have seen
that they do not “affect the subject, and each other, like equal
__ Opposing powers ” ; but that the State police power, whatever be the
definition or intendment of that term, must yield. So held John
Marshall in Gibbons vs. Ogden, and such, after avowed aberration
by some judges and covert disloyalty by others to the doctrine, is the
law today. The cases, with the possible exception of the Passenger
Cases, have been illustrations of conflict with act of Congress and
not with treaty. But by the Sixth Article of the Constitution, and
by its interpretation in Gibbons vs. Ogden, no distinction is drawn
between their equal and controlling supremacy. This is confirmed
by the long line of cases holding that between statute and treaty,
the latest expression of the Federal will must prevail.2** The logic
itself of the situation admits of no distinction. Marshall had said
of the power to regulate commerce:

“ The power is co-extensive with the subject on which it acts, and cannot
_be stopped at the external boundary of a State, but must enter its interior.”
So necessarily must it be with the power to make treaties. Is it
thinkable that that power may be “ stopped at the external boundary
of a State”? Aliens “must enter its interior,” as commerce does;
and the power of the United States to provide for such aliens by
treaty must accompany them. In our review of the causes which led
_to the creation of the Sixth Article of the Constitution, of the pur-
poses it was intended to subserve, of the interpretations placed upon
it by contemporaries, it was seen as a universally admitted fact,
that treaty provisions had been stopped at State boundaries, and it
was accordingly provided that under the Constitution the treaty
power should enter the interior of the States and there operate as
a supreme manifestation of the Federal will. And this was the
deliberate and reiterated judgment of the Supreme Court in the cases
analyzed beginning with Ware vs. Hylton. If, in the definition of
some lawyers, no State statute under examination in these cases was an
exercise of the police power, we have none the less seen that the long
list of cases beginning with Gibbons vs. Ogden and Brown vs. Mary-

* Supra, 83-99.

374 BURR—THE TREATY-MAKING POWER [April 20,

land, and ending with the echoes of the decision in Leisy vs. Hardin,
established, beyond all possibility of controversy, the supremacy —
over State police power of the constitutionally expressed Federal
will, whether manifest in act of Congress or in treaty. The lan-
guage of the Supreme Court in certain cases arising out of State
quarantine laws perhaps best presents its recent position in this
regard. Thus, we have the following authoritative utterances:

“Definitions of the police power must, however, be taken, subject to the
condition that the State cannot, in its exercise, for any purpose whatever,
encroach upon the powers of the general government, or rights — or
secured by the supreme law of the land.”””

“While it [an alleged right of State regulation] may be a police power
in the sense that all provisions for the health, comfort, and security of the —
citizens are police regulations, and an exercise of the police power, it has
been said more than once in this Court that, even where such powers are so
exercised as to come within the domain of Federal authority as defined
the Constitution, the latter must prevail.”** ae

“Generally it may be said in respect to laws of this character, that
though resting upon the police power of the State, they must yield whenever
Congress, in the exercise of the powers granted to it, legislates upon the
precise subject-matter; for that power, like all other reserved powers of the
State, is subordinate to those in terms conferred by the Constitution upon
the nation.”

We have seen that the inefficiency of the Federal will was the
acknowledged weakness of the United States under the Articles of
Confederation; that that weakness was appreciated and regretted by
those who formed the Constitution; that the language used in that
instrument was intended by them to secure the supremacy of the
Federal will; and that the Supreme Court had interpreted it
cordingly. It might seem that any possible discussion of the mean-
ing of Article VI. was thus foreclosed. But it may be well t
account for the doubts and questionings which have, as we hay
seen, reached even to the Supreme Court. There was no uncertaint
in the mind or in the utterance of Mr. Chief Justice Marshall wh
Gibbons vs. Ogden was decided. Yet in that very case he had sa

* New Orleans Gas Co. vs. Louisiana Light Co., 115 U. S., 650 o
p. 661.

*8 Morgan vs. Louisiana, 118 U. S., 455 (1886), p. 464.

*4 Gulf, Colorado & Sante Fe Ry. Co. vs. Hefley, 158 U. S., 98 (e :
p. 104.

1912.] OF THE UNITED STATES. 375

4 “Tt has been contended that if a law passed by a State in the exercise

___ of its acknowledged sovereignty, comes into conflict with a law passed by

a Congress in pursuance of the Constitution, they affect the subject and each

4 other, like equal opposing powers.”

q Unsound that contention was declared by the Court to be. But it
"was in effect the contention of that powerful body which spoke
| through Calhoun, and which strove to dominate the Union. In the
writings of that brilliant intellect, are concentrated the emotions,
_ the reasoning, the political conceptions of the slavocracy. And in
"them we find an attempt at a logical basis for the doctrine we know
7 as “State rights”—an attempt both able and sincere. The

_ States, he said, are sovereign; certain of their powers only they have
delegated. All acts done by the Union beyond its delegated powers
are void. It is for the States to differ from the Union with reluctance
as to the exercise of such a power; but if they assert their difference.
they assert it as a sovereign party to a treaty asserts its right to
insist on its own interpretation. No jurisdiction lies in any Federal
court, no power lies in any Federal agent, to overcome the declara-
tion of the State, when it “nullifies” the Federal law. In the view
of such a man and of the powerful party which supported him, the
functions of State legislation expanded, and of Federal activities
lessened. The Judiciary Act, so far as it allowed an appeal from
the State Courts to the United States Supreme Court, he deciared to
be unconstitutional.*** And when the tariff act of 1832 was “ nulli-
_ fied” by South Carolina in a declaration written by Calhoun,?* at
the time vice-president of the United States, Congress hastened to
compromise. Is it strange that with such ideas obtaining credence
in so many minds, hesitation existed on the part of some to declare
the apparent meaning of Article VI. of the Constitution to be the
Teal meaning; that the term “ police power of the States” conveyed
an illusory accent of authority ; and the declarations of Federal will
Teceived a qualified and timid adherence? The mandate of the

8 See “A Discourse on the Constitution and Government of the United
_ States,” Calhoun’s Works, Vol. L, p. 111. “Address to the People of South
Carolina,” Ibid., Vol. VI., p. 124. Letter to Governor Hamilton, Ibid., VI.
Pp. 144.
*** A Discourse on the Constitution, Ibid., Vol. I. at p. 318, ff.
==“ Address to the People of the United States,” Ibid., Vol. VI., p. 193.

376 BURR—THE TREATY-MAKING POWER [April 20,

Supreme Court of the United States in Worcester vs. State of ©
Georgia was insulted and ignored.*** And the Federal government
stood by silently assenting. Of that Federal government, Calhoun
was vice-president, and Roger B. Taney, attorney general. With the
death of John Marshall, that attorney general, a citizen of a slave -
State, was created the Chief Justice of the Supreme Court by the —
very President who had permitted Georgia to defy that Court. Is
it a cause for wonder that doubt as to the supreme efficacy of treaty —
provision over State law crept into the Court over whom presided
Mr. Chief Justice Taney? But today, a half-century after the Civil
War, that doubt is a survival which, Professor Mikell must permit. :
one to say, has no function to perform and has outlived its reason
for existence.

There is, however, a further consideration which lies before us.
We have come to realize that, born in times of stress, and intended
as a firm anchorage in future storms, the Constitution is pervade
and inspired by that intention. We have come to appreciate tl
memorable words of Marshall:

“ As men, whose intentions require no concealment, generally employ th
words which most directly and aptly express the ideas they intend to

the enlightened patriots who framed our Constitution, and the people

adopted it, must be understood to have employed words in their na i

sense, and to have intended what they have said.”*”

decided cases in the Supreme Court of the United States has ¢
mined all the applicable principles of constitutional law, and poir
out the methods by which is to be enforced any treaty provision

+8 Supra, pp. 158-161.
*° Gibbons vs., Ogden, 9 Wheat., p. 188.

1912.] OF THE UNITED STATES. 377
But before we turn to the examination of these decisions, it may
be well to consider certain of the incidents in the diplomatic rela-
tions of the United States in which has arisen the question of its
power to enforce treaty provisions. It will not be attempted to
examine these occurrences from the point of view of rights and
liabilities under international law, but wholly with respect to the
attitude taken by the Department of State toward the subject.
On November 10, 1880, certain Chinese residents of Denver,

Colorado, were injured or killed and their property destroyed by a

mob moved by race hatred. In reply to the representations of the
Chinese minister, the Secretary of State, Mr. Evarts, said:

*... As to the arrest and punishment of the guilty persons who com-
posed the mob at Denver, I need only remind you that the powers of direct
intervention on the part of this government are limited by the Constitution
of the United States. Under the limitations of that instrument, the govern-
ment of the Federal Union cannot interfere in regard to the administration
or execution of the munipical laws of a State of the Union, except under
circumstances expressly provided for in the Constitution. Such instances are
confined to the case of a State whose power is found inadequate to the
enforcement of its municipal laws and the maintenance of its sovereign
authority; and even then the Federal authority can only be’ brought into
operation in the particular State, in response to a formal request from the
proper political authority of the State. It will thus be perceived that so far
as the arrest and punishment of the guilty parties may be concerned, it is
a matter which, in the present aspect of the case, belongs exclusively to the
gevernment and authorities of the State of Colorado.”™

_ The Chinese minister replied:

“T regret-to learn from your note that the powers of direct intervention
on the part of the United States Government are limited by the Constitution.
It appears to me that treaties as well as the Constitution, are the supreme
law ot this land. The Chinese residents who were subjected to the wanton
outrage of the mob, came to this country, under the right of treaties between
China and the general Government of the United States, and not with
Colorado or any individual State.

“Thus, the case under consideration should be a question of intercourse
between China and the United States, and different from that to be dealt
with under the ordinary internal administration of a State. It was with this
view that I had in my last note requested you to cause this case to be
examined. But I fail to learn from your note the number of the guilty
persons that have been arrested, and how they have been punished or dealt

* William M. Evarts to Chen Lan Pin, Foreign Relations, 1881, p. 319.

378 BURR—THE TREATY-MAKING POWER _ [April 20,

with, and how the general Government of the United States has exercised,
or intends to exercise, its power in executing the treaty obligations to pro-
tect the Chinese.”

To this letter, Mr. Blaine responded:

“Your observations to the effect that treaties form a part of the supreme
law of this land equally with the Constitution of the United States, is evi-
dently based on a misconception of the true nature of the Constitution.
That instrument, together with all laws which are made in pursuance thereof.
and all treaties made or which shall be made under the authority of the
United States, are the supreme law of the land. Such is the language of the ©
Constitution, but it must be observed that the treaty no less than the statute
law, must be made in conformity with the Constitution, and were a provision
in either a treaty or a law found to contravene the principles of the Con- ©
stitution, such provision must give way to the superior force of the Constitu-~
tion, which is the organic law of the republic, binding alike on the govern- —
ment and the nation. It is under this interpretation of the Constitution that
foreigners, no less than citizens, find their best guarantee for that security —
and protection in their persons and property which it is the aim and desire. 3
of the Government of the United States to extend to all alike.””

Here the matter ended. Exactly what idea, if any, Mr. Blaine in-
tended to convey by his concluding sentences, is not clear.

On March 14, 1891, eleven Italians were killed by a mob in New
Orleans, Louisiana, in a series of occurrences known as the Mafia
riots. The chief of police had been previously murdered and his
death was ascribed to the Mafia. The eleven Italians had bee
arrested on that charge, tried and acquitted. A mob thereugia
killed them. Said the Secretary of State, Mr. Blaine:

“If it shall result that the case can be prosecuted only in the State
Courts of Louisiana, and the usual judicial investigation and procedure under
the criminal law is not resorted to, it will then be the duty of the United
States to consider whether some other form of redress may be asked.
is understood that the State grand jury is now investigating the affair, and,
while it is possible that the jury may fail to present indictments, the Unie
States cannot assume that such will be the case.

“The United States did not by the treaty with Italy become the inst
of the lives or property of Italian subjects resident within our territory.
government is able, however high its civilization, however vigilant its poli
supervision, however severe its criminal code, and however prompt and
flexible its criminal administration, to secure its own citizens against vio
promoted by individual malice or by sudden popular tumult. The fo

** Chen Pan Pin to William M. Evarts, Ibid., p. 321.
= James G. Blaine to Chen Lan Pin; Ibid., p. 336.

1912.] _OF THE UNITED STATES. 379

resident must be content in such cases to share the same redress that is
offered by the law to the citizen, and has no just cause of complaint or right
to ask the interposition of his country if the Courts are equally open to him
for the redress of his injuries.”™

This case caused the greatest excitement in both countries, and
the Italian minister was withdrawn. The international obligations
of the United States were finally settled by an appropriation by
Congress as indemnity. This course had been adopted in the
Chinese riots at Denver, and has been followed in practically all of
the instances of damages to or killing of aliens by mob violence.
The Act of Congress has always included a clause to the effect
that the indemnity is allowed out of considerations of humanity and
without reference to questions of liability.
In 1899, a mob hanged five Italians at Tallulah, Louisiana. The
Italian government protested. The local grand jury failed to indict,
although the facts were notorious. The Federal government in-
demnified the families of the victims. The incident has interest as
it manifests the foreign estimate of the position of powerlessness
assumed by the Federal government. The minister of the United
States to Italy forwarded to the Secretary of State an extract from
a newspaper printed at Rome, and said of it that it represented
fairly public opinion.*** Said the editorial article:
2 “A number of our confréres are astonished that in the face of a fact

so abominable as the lynching of four or five human beings, it should not be
P possible for either to claim, or obtain, a more substantial reparation than the
payment of an indemnity, more or less large, to the families of the victims.
Nevertheless this is the fact, and all protests against it would be futile.
“The Constitution of the United States gives the President of the
Republic no power over the internal affairs of the different States.
The Governor of Louisiana has no account to render to the Presi-
dent of the Confederation in regard to what takes place in his State. The
Governor is as powerful at home as the President is at Washington. Louisi-
ana has its laws, its magistrates, its parliament, its customs, and if President
McKinley should seek to impose his will upon it, he would receive a per-
emptory refusal, and not only that, but he would raise up against him the
whole public opinion of America. This American Constitution is, without
doubt an anomaly, above all from the European point of view. It is difficult
to admit that a State should not be able to answer for the acts which take

** James G. Blaine to Marquis Imperiali, Foreign Relations, 1891, p. 685.
* Foreign Relations, 1890, p. 445.

380 BURR—THE TREATY-MAKING POWER [April 20,

place under the shadow of its flag. All idea of reciprocity, which is the basis 4

of good relations, falls in prices.”* If in a small village of Lombardy, or

Piedmont, an American had been outraged, or killed unjustly, it is the Gov- | 4
-ernment at Rome that would have to answer for it. It is therefore incom-
prehensible that the Washington Government should not do the same when
an Italian is injured in Louisiana or Ohio.””*

In the case of the rights of Japanese in California in their rela~
tion to the public schools, the question took on aspects which had _
not hitherto characterized it. The case was not one arising out of
mob violence but involved the deliberate acts of the State of Cali-
fornia, or rather of a board of education deriving its powers from
that State. There were several questions with respect to the appli-
cability of the Japanese treaty, and its proper construction. In their
essence, these questions were whether the board of education had
the right under the existing treaty to tax all alien residents for
school purposes, and then to direct that Japanese children must
attend only one school—the Oriental school—while all other schools |
were open to children of other alien residents. Assuming the appli
cability of the treaty and its violation by the State authorities, the
fundamental question was thus presented as to the validity of the
treaty, and if valid, the possible methods of its enforcement. The
United States government filed a bill in the Federal court in Cal
fornia to enforce the treaty; but the matter was adjusted, and the
case discontinued, because of the rescinding of the resolution of the
board of education, which had given rise to the controversy.27 In
the meantime, the then President of the United States, Mr. Roc
velt, had, impliedly disapproving the prior positions assumed by t
State Department under Mr. Evarts and Mr. Blaine, thus addressed
Congress in his annual message of 1906:

“T therefore earnestly recommend that the criminal and civil statutes
the United States be so amended and added to as to enable the President,
acting for the United States government, which is responsible in our inter-
national relations, to enforce the rights of aliens under treaties. Even as’

law now is, something can be done by the Federal government toward 1
end, and in the matter now before me affecting the Japanese, everything

*® Sic. Evidently a translation of baisser le prix.
*® Clipping from L’/talie of July 25, 1800.
_** See note I5.

1912.] OF THE UNITED STATES. 381

it is in my power to do will be done, and all the forces, military and civil, of
the United States which I may lawfully employ will be so employed. There
should, however, be no particle of doubt as to the power of the National

Government completely to perform and enforce its own obligations to other

nations. The mob of a single city may at any time perform acts of lawless
violence against some class of foreigners which would plunge us into war.”™
This recommendation did not result in the passage of any statute
upon the subject. Similar recommendations by President Harrison
in 1891,7** and by President McKinley in 1899*°° and 1900° were
likewise disregarded by Congress.

There are at least two instances in our foreign relations where
the wrong was done to those claiming the protection of the Federal
government, and the position taken is instructive.

The first occurred in 1853 and is known as the Martin Koszta
Case.*°? Koszta was a native of Hungary but had declared his in-
tention of becoming a citizen of the United States. While in Turkey

on business, and protected by a certificate of the United States consul
- issued in accordance with Turkish law, he was seized by command
of the Austrian consul-general and carried on board an Austrian
vessel. A sloop of war of the United States was in the harbor and
its captain demanded his release. After some dispute, he was sur-
rendered into the custody of the French consul to await the result
of the diplomatic action of Austria and the United States. The
United States persisted in its demand, and Koszta was released.
In in re Neagle*®* the Court, approving of this action of the United
States, ask of this case:
“Upon what act of Congress then existing can any one lay his finger in
support of the action of our government in this matter?”™
And the dissenting members of the Court, likewise approving the
action of the United States, say:

*° Congressional Record, Vol. 41, Part IL., p. 32.

*° See note 16.

* See note 17.

™ See noté 18.

-™ Moore, International Law Digest, Vol. III., 490.

Prie5 U.S. t C1890).

135 U. S., p. 64.

PROC. AMER. PHIL. SOC. LI. 206 V, PRINTED SEPT. 9, 1912.

382 BURR—THE TREATY-MAKING POWER [April 20,

“We are asked:—Upon what express statute of Congress then existing
can this act of the government be justified?

“We answer, that such action of the government was justified because
it pertained to the foreign relations of the United States, in respect to which ©
the federal government is the exclusive representative, and embodiment of
the entire sovereignty of the nation, in its united character; for to foreign
nations, and in our intercourse with them, States and state governments, and =
even the internal adjustment of federal power, with its complex system of
checks and balances, are unknown, and the only authority those nations are
permitted to deal with is the authority of the nation as a unit.

“That authority the Constitution vests expressly and conclusively in the
treaty-making power ... the President and Senate ... by one simple and
comprehensive grant: ‘He [the President] shall have power, by and with the ~
advice and consent of the Senate, to make treaties, provided two-thirds of the 5
Senators present concur. This broad grant makes enumeration of par-
ticular powers unnecessary. All other delegations of powers in reference to
the international relations of this country are carefully and specifically enu-—
merated and assigned, one by one, to their designated departments. In
reply, therefore, to the question, what law expressly justifies such action, we ~
answer, the organic law, the constitution, which expressly commits all matters _
pertaining to our diplomatic negotiations to the treaty-making power.”””

In 1871 the steamer Montijo owned by citizens of the United
States, was seized by certain persons who were desirous of accom-
plishing a revolution against the State of Panama.*** Subsequently,
the State of Panama granted amnesty to the revolutionists and
assumed responsibility for damages done by them. The United
States claimed damages from the United States of Colombia of
which the State of Panama was a constituent part. The controversy
was referred to the British consul as arbitrator. It was claimed by
Colombia that no responsibility could rest on her for the acts of ¢
revolution within the State of Panama or for the acts of that State, —
and that the constitution so provided. This claim was disallowed by
the arbitrator who held that the treaty was :

“made with the general government, and not with the separate States of
which the Union is composed.”

He concluded:

“In the event of the violation of a treaty stipulation, it is evident that a
recourse must be had to the entity with which the international engagements —

* Thid., pp. 84-5.
** Moore, “International Arbitrations,” Vol. II., pp. 1421-47.

1912.] OF THE UNITED STATES. 383

were made. There is no one else to whom application can be directed. For
treaty purposes the separate States are non-existent; they have parted with
a certain defined portion of their inherent sovereignty, and can only be
dealt with through their accredited representative or delegate, the Federal
Government.”™*

It is now necessary to examine whether, under existing decisions
of the Supreme Court, such statutes as have been recommended by
three Presidents would be unconstitutional ; and further, considering
the suggestion of President Roosevelt, to ask what means of giving
effectiveness to treaty provisions exist in the Federal government,
in the absence of such statutory enactment.

In 1879 were decided three cases of great significance to us here.
The first was Tennessee vs. Davis,°°* wherein the defendant was
indicted in a State court for murder. Acting under Section 643 of the
Revised Statutes of the United States, he petitioned the circuit court of
the United States for removal of the prosecution to that court, alleging
that the killing occurred in self-defence while he was acting as deputy
collector of internal revenue by the authority of Federal laws. The
question was raised as to the constitutionality of the statute. On
appeal, the Supreme Court sustained its constitutionality and said:

“A more important question can hardly be imagined. Upon its answer
may depend the possibility of the general government’s preserving its own
existence. As was said in Martin vs. Hunter (1 Wheat., 363), ‘the general
government must cease to exist whenever it loses the power of protecting
itself in the exercise of its constitutional powers.’ It can act only through its
officers and agents, and they must act within the States. If, when thus act-
ing, and within the scope of their authority, those officers can be arrested
and brought to trial in a State court, for an alleged offense against the
law of the State, yet warranted by the Federal authority they possess, and if
the general government is powerless to interfere at once for their protection.
—if their protection must be left to the action of the State court,—the
operations of the general government may at any time, be arrested at the will
of one of its members. The legislation of a State may be unfriendly. It
may affix penalties to acts done under the immediate direction of the national
government, and in obedience to its laws. It may deny the authority con-
ferred by those laws. The State court may administer not only the laws of
the State, but equally Federal law, in such a manner as to paralyze the
operations of the government. And even if, after trial, and final judgment
in the State court, the case can be brought into the United States court for

™ Tbid., p. 1439.
100 U. S., 257 (1879).

384 BURR—THE TREATY-MAKING POWER [April 20,

review, the officer is withdrawn from the discharge of his duty during the
pendency of the prosecution, and the exercise of acknowledged Federal
power arrested. ;

“We do not think such an element of weakness is to be found in the
Constitution. The United States is a government with authority extending —
over the whole territory of the Union, acting upon the States and upon the —
people of the States. While it is limited in a number of its powers, so far
as its sovereignty extends it is supreme. No State government can exclude ©
it from the exercise of any authority conferred upon it by the Constitution,
obstruct its authorized officers against its will, or withhold from it, for a
moment, the cognizance of any subject which that instrument has com-_
mitted to it.”

In ex parte Siebold,**® certain election officers appointed under
the laws of Maryland were convicted in the circuit court of the —
United States of interfering with the deputy marshals of the United —
States who were acting under Federal statutes at a congressional :
election. The convictions were sustained and the statutes declared °
to be constitutional. The Court concluded: .

“The views we have expressed seem to us to be founded on such plain
and practical principles as hardly to need any labored argument in their
support. We may mystify anything. But if we take a plain view of the
words of the Constitution, and give to them a fair and obvious interpretation,
we cannot fail in most cases of coming to a clear understanding of its mean-
ing. We shall not have far to seek. We shall find it on the surface, and
not in the profound depths of speculation.

“The greatest difficulty in coming to a just conclusion arises from
taken notions with regard to the relations which subsist between the sta
and national governments. It seems to be often overlooked that a national
government has been adopted in this country, establishing a real govern-
ment therein, operating upon persons and territory and things; and w
moreover, is, or should be, as dear to every American citizen as his State
government is. Whenever the true conception of the nature of this govern-
ment is once conceded, no real difficulty will arise in the just interpre
of its powers. But if we allow ourselves to regard it as a hostile organ
tion, opposed to the proper sovereignty and dignity of the State government
we shall continue to be vexed with difficulties as to its jurisdiction |
authority. ... State rights and the rights of the United States should
equally respected. Both are essential to the preservation of our libe
and the perpetuity of our institutions. But, in endeavoring to vindicate
one, we should not allow our zeal to nullify or impair the other.”™

°° Tbid., pp. 262-3.

*° Tbid., 371 (1879).
8" Thid., pp. 393-4.

1912.] OF THE UNITED STATES. 385

Ex parte Clarke** arose in Ohio and involved constitutional
questions similar to those decided in Ex parte Siebold. It is dis-
tinguished by a strong dissenting opinion by Mr. Justice Field.

These three cases present precisely and completely the doctrine
they enunciate. On the one hand, Tennessee vs. Davis determines
the ineffectiveness of State laws when attempted to be enforced
against Federal laws; on the other hand, Ex parte Siebold illustrates
the effectiveness of Federal law when opposed to State law. Such
are the decisions in cases where crimes were charged and criminal
proceedings begun. However the definition of the State police power
be narrowed, it must include its agencies for the defining and the
punishment of crime. Yet, in the one case, the State was held
powerless to try the party whom it had indicted, and in the other,
powerless to save the party acting under its authority. And the
Court fully appreciated the significance of its decision.

“It is argued,” says the opinion of the Court, “that the preservation of
peace and good order in society is not within the powers confided to the
government of the United States, but belongs exclusively to the States.
Here again we are met with the theory that the government of the United
States does not rest upon the soil and territory of the country. We think
that this theory is founded on an entire misconception of the nature and
‘powers of that government. We hold it to be an incontrovertible principle,
that the government of the United States may, by means of physical force,
exercised through its official agents, execute on every foot of American soil
the powers and functions that belong to it. This necessarily involves the
power to command obedience to its laws, and hence the power to keep the
peace to that extent.

“This power to enforce its laws and to execute its functions in all places
does not derogate from the power of the State to execute its laws at the
same time and in the same places. The one does not exclude the other.
except where both cannot be executed at the same time. In that case, the
words of the Constitution itself show which is to yield.”**

In Baldwin vs. Franks,*** the power of the Federal government
to provide for the punishment of those who violate treaty provisions
is unanimously enunciated in positive terms. The case, however,
did not require the determination of this question, because the acts

“*Tbid., 399 (1879).

“= Thid., pp. 394-5.

™ 120 U. S., 678 (1878).

386 BURR—THE TREATY-MAKING POWER [April 20,

in question, under which the defendant had been prosecuted, were
declared to be inapplicable. Said the Court:

“The precise question we have to determine is not whether Congress has
the constitutional authority to provide for the punishment of such an offense
as that with which Baldwin is charged, but whether it has so done.

“That the treaty-making power has been surrendered by the States and
given to the United States, is unquestionable. It is true, also that the
treaties made by the United States and in force are part of the supreme law
of the land, and that they are as binding within the territorial limits of the
States as they are elsewhere throughout the dominion of the United
States. .

“That the United States have power under the Constitution to provide
for the punishment of those who are guilty of depriving Chinese subjects of
any of the rights, privileges, immunities, or exemptions guaranteed to them
by this treaty, we do not doubt. What we have to decide, under the ques-
tions certified here from the Court below, is, whether this has been done.’
It will be observed that although the Court contemplated that it would
be by act of Congress that the treaty rights would be protected, yet
the authority in Congress to pass such an act could be derived only —
from the clause giving it the power generally to make all laws
necessary for carrying into execution the treaty power.*4* And if
the treaty power were incompetent to come into successful conflict —
with State police power, the act of Congress must logically have been —
equally powerless to carry into effect an unconstitutional treaty —
provision. 4

The foregoing cases, although they establish generally the effec- _
tiveness of Federallaw when opposed to State law, without regard to
so-called State police power, are cases where an act of Congress was
under consideration. Jn re Neagle*1" illustrates the extent to which
the Supreme Court has recognized and enforced the supremacy over
State police power of Federal constitutional provisions. One Terry
had been punished by Mr. Justice Field with imprisonment for con-
tempt of court committed during the litigation before him. Terry
had publicly announced his intention of taking Mr. Justice Field

°° Tbid., pp. 682, 683. :

5 Article I., Section 8, Last Clause. “To make all laws which shall b
necessary and proper for carrying into execution the foregoing powers, and

all other powers vested by this Constitution in the Government of the United
States, or in any department or officer thereof.”

o's 32 U.. St C1B00);

Sa RIE IRS Or Fm Caer hap niente Entelow =

1912.] OF THE UNITED STATES. 387

life. The attorney-general had directed the United States marshal
in California to use all possible means to prevent such a catas-
trophe. Neagle was appointed deputy marshal and instructed to
attend upon Mr. Justice Field and endeavor to protect him from
any assault by Terry. While the justice was traveling to attend
court, such assault occurred, and Neagle shot and killed Terry. An
arrest by the California authorities for murder followed. Neagle
applied to the circuit court of the United States for a writ of habeas
corpus, under which he was discharged. On appeal to the Supreme
Court, that judgment was affirmed. The statute authorizing the
granting of such a writ of habeas corpus provided that it should
issue when the petitioner was “in custody for an act done or
omitted in pursuance of a law of the United States.” No statute
existed which authorized the duties assumed by Neagle toward Mr.
Justice Field. But said the Court:

“In the view we take of the Constitution of the United States, any obliga-
tion fairly and properly inferrible from that instrument, or any duty of the
marshal to be derived from the general scope of his duties under the laws
of the United States, is ‘a law’ within the meaning of this phrase. It would
be a great reproach to the system of government of the United States,
declared to be within its sphere sovereign and supreme, if there is to be
found within the domain of its powers no means of protecting the judges,
in the conscientious and faithful discharge of their duties, from the malice
and hatred of those upon whom their judgments may operate unfavor-
ably. .. . We do not believe that the government of the United States is

thus inefficient, or that its Constitution and laws have left the high officers of
the government so defenseless and unprotected.”

The Court then point out that by Article II., Section 3, of the Con-

stitution, it is provided that the President “ shall take care that the

laws be faithfully executed ”’ ; and they ask:

“Tf an officer of the United States has been arrested on indictment found
by a State Court, for riot, assault and battery, and assault with attempt to kill,
the indictment now showing that the alleged offenses were committed while
the officer was professing to act under a law of the United States, or under
some order, process, or decree of some judge or Court thereof, this Court,
on a habeas corpus, where the petition of the officer denies the offense, and
avers that what is alleged as offense was done in proper execution of an
order, process, or decree of a Federal Court, will go outside the indictment,
and hear evidence to show the truth of the facts set forth by the officer.”*”

**Thid., p. 50. = Thid., p. 64.

388 BURR—THE TREATY-MAKING POWER “LApril 20,

The Court then refers to the international episode of the case of
Martin Koszta, and asks:

“Upon what Act of Congress then existing can any one lay his finger in
support of the action of our government in this matter ?’*”

The conclusion is that all acts done under the Constitution have the
force of law.

In Logan vs. United States,*** certain individuals were arrested
for an alleged crime committed within the Indian territory, and
therefore within the jurisdiction of the United States. While in
the custody of the United States marshal, they were attacked by an
armed body of men and a fight ensued, resulting in the death of
two of the individuals under arrest. Sections 5508-9 of the Revised
Statutes provided for the punishment of any two or more persons
who should conspire and unite to deprive any person of a privilege —
secured to him by the Constitution or laws of the United States.
Under these sections members of the attacking band were indicted
in the Federal district court. The Supreme Court of the United
States held that the United States was bound to protect against
lawless violence persons in its custody under arrest; and that an
attack upon persons so held constitute a violation of Sections —
5508-9 of the Revised Statutes. Said the Court:

“Every right, created by, arising under or dependent upon, the Consti-
tution of the United States, may be protected and enforced by Congress. by
such means and in such manner as Congress, in the exercise of the correla-
tive duty of protection, or of the legislative powers conferred upon it by the
Constitution, may in its discretion deem most eligible and best adapted to —
attain the object.’*”
It will be observed in this case that the jurisdiction of the United ©
States over the subject matter arose out of the fact that the original |
crime was committed in the Indian Territory, and that regulations —
concerning it were committed to the legislation of Congress by the —
Constitution. Sections 5508-9 of the Revised Statutes, aithougl —
general criminal statutes, were sustained because they were opera- _
tive to protect rights secured by laws of Congress, passed in the

© Thid., p. 64. .

1144 U. S., 263 (1802).
*“ Tbid., p. 203.

1912.] OF THE UNITED STATES. 389

exercise of a power granted by the Constitution. Inasmuch as the
power to make treaties is likewise specifically granted and such
treaties are declared to have the force of laws, this case is of
authoritative significance.

In re Debs*?* is a case which attracted universal interest. It
arose out of the great Chicago strike of 1894, and was a petition
_ for a writ of habeas corpus to secure the release of labor leaders
sentenced for contempt. The legal points at issue were succinctly
stated by the Supreme Court as follows:

“The United States, finding that the interstate transportation of persons
___and property, as well as the carriages of the mails, is forcibly obstructed, and
that a combination and conspiracy exists to subject the control of such
transportation to the will of the conspirators, applied to one of their Courts,
sitting as a Court of Equity, for an injunction to restrain such obstruction
__and prevent carrying into effect such conspiracy. Two questions of impor-
tance are presented: First. Are the relations of the general government to
interstate commerce and the transportation of the mails such as authorize a
direct interference to prevent a forcible obstruction thereof? Second. If
- authority exists, as authority in governmental affairs implies both power and
_ duty, has a Court of Equity jurisdiction to issue an injunction in aid of the
performance of such duty” ?™*

_ The Court then proceeds to quote the language of Mr. Chief Justice
Marshall in McCullough vs. Maryland:

“No trace is to be found in the Constitution of an intention to create
a dependence of the government of the Union on those of the States, for
the execution of the great powers assigned to it. Its means are adequate to
_ its ends; and on those means alone was it expected to rely for the accom-
_ plishment of its ends. To impose on it the necessity of resorting to means
which it cannot control, which another government may furnish or with-
hold, would render its course precarious, the result of its measures uncer-
tain, and create a dependence on other governments, which might disappoint
its most important designs, and is incompatible with the language of the
Constitution.”**

The two questions of law propounded are answered as follows:
“As, under the Constitution, power over interstate commerce and the

transportation of the mails is vested in the national government, and Con-
gress by virtue of such grant has assumed actual and direct control, it follows

158 U. S., 564 (1895).
™ 158 U. S., p. 577.
= 4 Wheat., p. 578.

390 BURR—THE TREATY-MAKING POWER [April 20,

that the national government may prevent any unlawful and forcible inter-
ference therewith. But how shall this be accomplished? Doubtless, it is
within the competency of Congress to prescribe by legislation that any inter-
ference with these matters shall be offenses against the United States, and
prosecuted and punished by indictment in the proper courts. But is that the
only remedy? Have the vast interests of the nation in interstate commerce,
and in the transportation of the mails, no other protection than lies in the
possible punishment of those who interfere with it? ... There is no such
impotency in the national government. The entire strength of the nation
may be used to enforce in any part of the land the full and free exercise of
all national powers and the security of all rights entrusted by the Constitu-
tion to its care. The strong arm of the national government may be put
forth to brush away all obstructions to the freedom of interstate commerce
or the transportation of the mails. If the emergency arises, the army of the
nation, and all its militia, are at the service of the nation to compel obedience
to its laws.

“But passing to the second question, is there no other alternative than
the use of force on the part of the executive authorities whenever obstruc-
tions arise to the freedom of interstate commerce within or the transporta- —
tion of the mails? Is the army the only instrument by which rights of the
police can be enforced and the peace of the nation preserved? ... The right —
to use force does not exclude the right of appeal to the Courts for a judicial
determination and for the exercise of all their powers of prevention. Indeed,
it is more to the praise than to the blame of the government, that, instead of
determining for itself questions of right and wrong on the part of these
petitioners and their associates and enforcing that determination by the club—
of the policeman and the bayonet of the soldier, it submitted all those ques-
tions to the peaceful determination of judicial tribunals, and invoked their
consideration and judgment as to the measure of its rights and powers and
correlative obligations of those against whom it made complaint.”*””

The Court thus concludes:

“Summing up our conclusions, we hold that the government of the
United States is one having jurisdiction over every foot of soil within its
territory, and acting directly upon each citizen; that while it is a government
of enumerated powers, it has within the limits of those powers all the attri-
butes of sovereignty.”*”
If therefore the Federal government has the power to act by :
army, by its courts, criminal and civil, “directly upon each citizen
“over every foot of soil within this territory,” under the grant to
regulate interstate commerce and the transmission of the mail, can
it be that the powers of that same Federal government are less whan

8% 158 U. S., pp. 581, 582, 583. q

*" Tbid., p. 599.

1912.] OF THE UNITED STATES. 391

called upon to perform sacred obligations incurred through treaties
with other sovereignties? A dispassionate study of the cases—such
as is here attempted—shows that the Federal government has full
power to deal within a State with mobs who attack one under
_ Federal arrest, and with mobs who interfere with interstate com-
merce. How long—such being incontrovertible law—will the Amer-
~ ican people permit its Department of State to urge that it is without
_ power to deal with a mob which deliberately sets at naught and vio-
lates Federal treaty obligations declared by the Constitution to be
the supreme law of the land?
Ohio vs. Thomas*** is a case which by its facts throws into
__ strong relief the incapacity of so-called State police power to affect
_ the action of the Federal government. By Act of Congress a
4 soldiers’ home was established in the State of Ohio. It was conceded
; _ that the ground on which the home stood was within the jurisdiction
_ of the State. The management of the home was entrusted by Con-
gress to a governor and board of managers. By an Ohio statute the
use of oleomargarine was permitted only under certain conditions.
_ The management of the home furnished oleomargarine to its in-
‘mates and did not comply with the conditions of the State statute.
The Governor was accordingly indicted under the statute. He was
released on habeas corpus by the Federal circuit court, and the
Supreme Court affirmed. Said the Court:

“Whatever jurisdiction the State may have over the place or ground
where the institution is located, it can have none to interfere with the provi-
sions made by Congress for furnishing food to the inmates of the home, nor
has it power to prohibit or regulate the furnishing of any article of food
which is approved by the officers of the home, by the Board of Managers
and by Congress. Under such circumstances the police power of the State
has no application.”™

The State statute was passed in the exercise of the State police
power ; yet at once it yielded to the Federal act creating a soldiers’
home. Is it possible to maintain that the State police power operates
to prevent Federal control over or punishment of a mob whick
violates treaty rights, while it lies prone before the desire of Con-
_ gress to feed its old soldiers with oleomargarine?

= 173 U. S., 276 (1800). = Tbid., p. 283.

392 BURR—THE TREATY-MAKING POWER [April 20, —

Finally, in The Employers’ Liability Cases,**° it is said of inter- —
state commerce:

“An obstruction of such commerce by unlawful violence may be made .
punishable under the laws of the United States, suppressed by the armies of ©
the United States, or, at the instance of the United States, enjoined in its —
Courts.”
Similarly, and with no possibility of contradiction based on an
examination of the Federal decisions, one may say: A violation of
rights secured by treaty provisions may be made punishable under
the laws of the United States, suppressed by the armies of the |
United States, or, at the instance of the United States, enjoined in
its courts.

An examination of the proceedings of the Federal Coa
stitutional Convention shows that such was the intention of its
framers. Article II., Section 3, provides that the President “ shall
take care that the laws be faithfully executed.’ At one time in the
Convention this clause stood thus in sinesigaiias 4 the powers of the
President:

“To call forth the aid of the militia, in order to execute the laws of the
Union, enforce treaties, suppress insurrections, and repel invasions.”

At this stage, according to Madison’s journals:

“Mr. Govr Morris moved to strike the following words out of the 18 4

clause ‘ enforce treaties,’ as being superfluous since treaties were to be ‘laws’

. which was agreed to nem: contrad :”*”

It is thus conclusively established that when the Constitution says
the President shall execute “the laws,” treaties, since they have the
force of laws, come within this constitutional provision.

It must therefore be concluded from this survey of decided ‘
cases that an act of Congress providing for the punishment of vio- _
lations of treaty provisions, or otherwise tending to secure their
enforcement, would be constitutional, and that State police power:
however defined, must yield. Such statute would receive identical
the same sanction as the acts enforcing the postal laws or prohi

*° 207 U. S., 463 (1908).

™ Thid., Dp. Sae
* Farrand, Vol. II., pp. 389-90.

1912.] - OF THE UNITED STATES. 393

ing interference with interstate commerce. In the absence of such
statutes, the executive has the power to call upon the army of the
United States and enforce by its power any treaty provision, in pre-
cisely the same manner and under the same conditions as the execu-
tive might enforce an act of Congress. This was the emphatic
decision in in re Debs.*** Finally, resort may be had either by the
_ United States or by the aggrieved party to the Federal Courts. Such
right of redress is incontrovertibly established, but there is one
latent practical difficulty. It is this. Treaties may and do operate,
when so intended, as acts of Congress, but they are not in practice
drawn as legislative acts. They deal with the enunciation of general
principles; they do not express clearly and specifically the rights
they purpose to confer; nor, if those rights be such as to require
remedial provisions, do they contain such provisions. The case of
_ the Mafia riots at New Orleans affords an admirable illustration of
: this state of things. The treaty with Italy had provided:

“ The citizens of each of the high contracting parties shall receive, in the
states and territories of the other, the most constant protection and security
for their persons and property, and shall enjoy in this respect the same
rights and privileges as are or shall be granted to the natives, on their
submitting themselves to the conditions imposed upon the natives.”™
There was in the treaty no provision for the punishment of any
_ person violating it, and no right of action conferred on persons in-
jured or damaged by its violation. There remained therefore only
_the general promise of the United States to protect Italian citizens—
a promise not made effective either by the terms of the treaty or by
any act of Congress. The position taken by Mr. Blaine, that the
Federal government was powerless to deal with such matters because
_ they were committed to the States, was technically maintainable; but
maintainable only because the United States had neglected either by
_ treaty provision or by statute to adopt any means for performing
_ the international obligation it had assumed. The power to make the
Federal will supreme existed, was established by numerous decisions,
_ and had been exercised by Congress in a series of statutes. When
Supra, pp. 224-220.

**“ Compilation of Treaties in Force, 1904,” at p. 450—Article II. of
treaty of 1871 with Italy. :

394 BURR—THE TREATY-MAKING POWER [April 20,

the Italian suitors in the Federal court were finally denied relief
against the municipality which had suffered the mob violence,®** the
reason was that neither the treaty nor any Federal statute existed -
to create liability. Had such statute or treaty provision existed, the
decision must have been otherwise. 4
The United States has by certain provisions of the Revised 4
Statutes created it a crime against the United States to combine to
hinder the execution of any law of the United States or to deprive
any citizen of any right secured by the Constitution or laws of the
United States. In Baldwin vs. Franks,*** despite the strong dissent —
of Mr. Justice Field and Mr. Justice Harlan, we have seen that these @
statutes were held not to apply to violations of treaty provisions —
nor to protect aliens. As things now are, therefore, treaties are
made in a form which puts it beyond the power of the Federal
executive to enforce the rights guaranteed thereunder without an
amendment to existing statutes, and our diplomatic representatives
are left to explain matters as they best can. The remedy is simple.
Let Sections 5336, 5508, 5509, 5519 of the Revised Statutes be
amended to include the words “treaties of the United States” as
well as the words “laws of the United States,” and to extend their
protection to aliens as well as to citizens.*** Then let the bill intr
duced in the Senate on March 1, 1892, and reported with approval
on March 30, 1892, be enacted into law,°** and there will end the
grave danger and national disgrace which springs from guaranteeing
treaty rights, the power to enforce which is not provided. :
It is of course clear that the passage of statutes applicable 1
all treaties would best subserve the national and international inter:
ests involved. There is no constitutional reason, however, why
treaty should not, in itself, provide for the enforcement of
rights it guarantees. The third article of the treaty with Italy has
been quoted above. The Italian government having in mind th
New Orleans and Tallulah occurrences, might well say to the Uni
States: You have advised us that as matters now are under you

* New Orleans vs. Abagnatto, 62 Federal, 240 (1894).
8° Supra, pp. 218-220.

: 7 See note I.
8 See note 20.

>
4
HT
*
4

t2
i&
a
é

1912.] OF THE UNITED STATES. 395

existing laws, the only redress we have for such violations as have
occurred and may recur, is through the action of the local authori-
ties, often irreconcilably prejudiced against us, and with whom we
cannot directly deal. We ask therefore that the Federal government
shall protect our citizens when violations of treaty rights occur as
fully as it does its own when violations of Federal law occur. We
propose the addition of the following clause to Article Three of the
treaty between us: The high contracting parties agree that the pro-
visions of this treaty securing protection for the persons and prop-
erty of Italian citizens who may be within the United States, shall
be and are hereby made supreme law within the United States;
and that Sections 5336, 5508, 5509, 5519 of the Revised Statutes of
the United States shall be and are hereby made applicable to viola-
tions of the provisions of this treaty in all cases where they are now
applicable to violations of the laws of the United States.

To such a request, the government of the United States could
hardly find reasons on which to base a refusal. If a treaty be
intended to operate as “legislative act,” to again use Marshall’s
phrase, it should obviously in its draftmanship fulfill the essentials
of a legislative act. If rights of action are to be given, those rights
should be precisely set forth, if violation of treaty provisions by
mobs or otherwise is not to be encouraged, provisions for the
punishment of violators should be added and stated with the meticu-
lous phraseology of a criminal statute. The constitutionality of
such a procedure has been seen to be demonstrated by the cases
analyzed ; its wisdom would seem to be obvious. If the government
of the United States does not desire to grant a certain privilege, its
dignity requires that such desire should be stated through its diplo-
matic agencies; it cannot in honor use general language purporting
to convey a privilege, unless it be prepared simultaneously to pro-
vide for its recognition and enforcement.

vi.
The conclusion of the survey of the treaty-making power of the

a United States attempted in this essay is now reached. The deci-

sions of the Supreme Court of the United States have been assumed

896 BURR—THE TREATY-MAKING POWER [April 20, —

to contain the materials for a final judgment. This is not the place
for a demonstration of the correctness of that assumption. If in the
judicial power of the United States the nation is not to find the final
arbiter of the constitutionality of State and Federal acts, then the
fundamental purposes of the framers of the Constitution are utterly
frustrated, and with the destruction of that instrument must disap-
pear any thought of a judicial interpretation and enforcement of
the treaty-making power. During many years of the nation’s life
the individual judgment of the States was set up by some as the
final arbiter of constitutional acts; today, the tendency is rathe
toward making of Congress that supreme tribunal, or perhaps even
the crowd, if the recall is to accomplish its logical end. But in this
essay the final authority has been recognized to be the Supre
Court. Examining their decisions, we have seen in the making t
principles of constitutional law as they affect the treaty-making
power. As they have slowly formed before our eyes, these prin
ciples have become a part of our thought. Not always have the
sults reached been logical from the strictly academic point of view
the judges were men of political convictions and emotions, and
often was it necessary to pause to consider the conditions und
which they spoke, and the political doctrines which filled the air a
colored—or even animated—their words. If one would for
moment forget such considerations, time and again did old-t
political beliefs, given voice, surprise and warn one. In a sub

siderations, one must ever bear in memory the opinions of the t
in which the judges wrote. The language of Mr. Justice §
in writing to a friend in 1845, is very pertinent to the thought
attempted to be expressed. He wrote:

“ Although my personal position and intercourse with my brethren
bench has always been pleasant, yet I have long been convinced
doctrines and opinions of the ‘old Court’ were daily losing ground,
especially those on great constitutional questions. New men and
opinions have succeeded. The doctrines of the Constitution, so vital
country, which in former times received the support of the whole Cou
longer maintain their ascendency. I am the last member now living

1912.] OF THE UNITED STATES. 397

old Court, and I cannot consent to remain where I can no longer hope to see
those doctrines recognized and enforced.”™
Those words were written when, under the influence of Calhoun,
a great party was adopting his State rights views, and when south-
ern judges filled the bench. Can one doubt that those facts should
be borne in memory when the License Cases,**° decided in 1847, are
quoted as authoritative utterances respecting the true relations of
Federal action and State police power? Have they really any more
validity today than an old bill of sale for a negro slave could have?
This is perhaps too strong a comparison; it will serve to emphasize,
even if unduly, the necessity for a discriminative estimate of the
value of decisions.
The main question asked in this essay by its title is the status
of treaty provisions brought into conflict with the attempted exercise
of State police powers. The answer is that, without qualification of
any kind whatsoever and without limitation by any possible defini-
tion of the treaty-making power, a treaty provision as the embodied
manifestation of the Federal will is supreme over any and all State
enactments made in the exercise of the police power. Such was the
7 3 idea of those who framed the Constitution and who believed that they
> had written their purpose into that instrument; such also was the
_ idea of those who favored and those who opposed its ratification by
. . the States. This unanimous contemporary interpretation was stated
and applied by the Supreme Court of the United States and pervades
__ and informs every word which John Marshall uttered during the years
i in which the fundamental canons of constitutional interpretation
; a were evolved. On the death of that greatest English-speaking jurist
4 of all time, the advocates of State rights, soon to become the forces
+ 4 of disunion, gained the ascendancy in the national councils. Mem-
bers of that party to which Marshall had his whole life long opposed
the authority of his office and the distinction of his character, be-
: . came justices of the Supreme Court and were the men of whom
_ Joseph Story wrote. The decisions of the Court so constituted

: *° Letter to Ezekiel Bacon, April 12,1845, “Life and Letters of Joseph
) Story,” Vol. IL, p. 527.

i= *° Supra, pp. 187-192.

PROC. AMER. PHIL. SOC., LI. 206 W, PRINTED SEPT. 9, 1912.

398 BURR—THE TREATY-MAKING POWER [April 20, —

7

respecting State police power, Federal control over commerce, and o
treaty rights, became so clouded by hazy qualifications and hesi-
tations, that one is justified in the assertion that to political con-
siderations alone can one look to explanations which shall clarify.
The Civil War came and passed. New men succeeded to the bench
of the Supreme Court. The arms of the North had brought —
supremacy to the Federal will. It remained unquestioned and un-
questionable for years. When, in 1879, instances of its enforce-
ment came before the Supreme Court, the supremacy of that will
was, in the cases we have analyzed,** established in language which
rings with vehement conviction. And so was the return made to the
thought and logic of Marshall, who perpetuated in the records of
the Supreme Court what the constitutional conventions had declared
and established. That decision of 1879 persists as the law tod:
reiterated in 1895, when in days of financial panic, organized la
and a sympathetic State executive, doubted the Federal power.*#
Failure to impress the Federal will, intended to be expressed
treaty, may occur; but the cause must be sought in inadequate
of Congress and inexplicit treaty provisions. Fortified by the p
ciples established by Marshall and recognized by the Supreme Court
today, one may conclude: A violation of rights secured by tre
provisions may be made punishable under the laws of the Uni
States, suppressed by its armies, or enjoined in its courts.

NOTES.

Note 1.—In a letter to Senator Breckinridge of Kentucky, dated A
12, 1803, Jefferson wrote: “ The Constitution has made no provision for
holding foreign territory, still less for incorporating foreign nations into
Union. The executive in seizing the fugitive occurrence which so m
advances the good of their country, have done an act beyond the Const
tion. The legislature, in casting behind them metaphysical subtleties
risking themselves like faithful servants, must ratify and pay for
throw themselves on their country for doing for them unauthorized —
we know they would have done for themselves had they been in a situat
do it.” Jefferson’s Works, IV., p. 500.

1 Supra, pp. 212-217.
: 8° Supra, pp. 224-220.

1912.] OF THE UNITED STATES. 399

Note 2—*“ Mr. (Madison) observed that the Senate represented the States
alone, and that for this as well as other obvious reasons it was proper that
the President should be an agent in treaties.

“Mr. Govr. Morris did not know that he should agree to refer the
making of treaties to the Senate at all, but for the present wd. move to add
‘as an amendment to the section, after ‘treaties’—‘but no treaty shall be
= binding on the United States which is not ratified by a law,’

3 “Mr. Madison suggested the inconvenience of requiring a legal ratifica-
__ tion of treaties of alliance for the purposes of war &c. &c.

“Mr. Ghorum. Many other disadvantages must be experienced if
treaties of peace and all negotiations are to be previously ratified—and if not
___ previously, the Ministers would be at a loss how to proceed—What would be
| _ the case in G. Britain if the King were to proceed in this manner? Ameri-
" _ can Ministers must go abroad not instructed by the same authority (as will
be the case with other Ministers) which is to ratify their proceedings.

“Mr. Govr. Morris. As to treaties of alliance, they will oblige foreign
powers to send their Ministers here, the very thing we should wish for. Such
treaties could not be otherwise made, if his amendment should succeed. In
general he was not solicitous to multiply and facilitate treaties. He wished
none to be made with G. Britain, till she should be at war. Then a good
bargain might be made with her. So with other foreign powers. The more
difficulty in making treaties, the more value will be set on them.

“Mr. Wilson. In the most important treaties, the King of G. Britain
being obliged to resort to Parliament for the execution of them, is under
the same fetters as the amendment of Mr. Morris will impose on the Senate.
It was refused yesterday to permit even the Legislature to lay duties on
exports. Under the clause, without the amendment, the Senate alone can
make a treaty, requiring all the rice of S. Carolina to be sent to some one
particular port.

“Mr. Dickinson concurred in the amendment, as most safe and proper,
tho’ he was sensible it was unfavorable to the little States; which would
otherwise have an equal share in making treaties.

“Docr. Johnson thought there was something of solecism in saying that
the acts of a Minister with plenipotentiary powers from one body, should
_ depend for ratification on another body. The example of the King of G. B.
_ Was not parallel. Full and complete power was vested in him—lIf the Parlia-
ment should fail to provide the necessary means of execution, the treaty
would be violated.

“Mr. Ghorum in answer to Mr. Govr. Morris, said that negotiations on
the spot were not to be desired by us, especially if the whole Legislature is
to have anything to do with Treaties. It will be generally influenced by
two or three men, who will be corrupted by the Ambassadors here. In such
a Government as ours, it is necessary to guard against the Government itself
_ being seduced.

“Mr. Randolph observing that almost every speaker had made objections
to the clause as it stood, moved in order to a further consideration of the

400 BURR—THE TREATY-MAKING POWER. [April 20,

subject, that the motion of Mr. Govr. Morris should be postponed, and on
this question 5

“Massts. no. Cont. no. N. J.—ay—Penna. ay. Del. ay. Md. ay.
Va. ay—N. C. no. S. C. no.—Geo. no.

“On Mr. Govr. Morris motion

“Massts. no. Cont. no. N. J. no. Pa. ay—Del. no. Md. no. Va. no.
N. C. divd S.C. no. Geo. no.”

Note 3.—The report in detail was: “ Mr. Madison then moved to authorize
a concurrence of two thirds of the Senate to make treaties of peace, without
the concurrence of the President—The President he said would necessarily
derive so much power and importance from a state of war that he might be
tempted, if authorized, to impede a treaty of peace. Mr. Butler 2ded. the
motion. :

“Mr. Ghorum thought the precaution unnecessary as the means of
carrying on the war would not be in the hands of the President, but of th
Legislature.

“Mr. Govr. Morris thought the power of the President in this case harm
less; and that no peace ought to be made without the concurrence of the
President, who was the general guardian of the National interests.

“Mr. Butler was strenuous for the motion, as a necessary security against
ambitious and corrupt Presidents. He mentioned the late perfidious po
of the stakeholder in Holland; and the artifices of the Duke of Marlbro’ to
prolong the war of which he had the management.

“Mr. Gerry was of opinion that in treaties of peace a greater rather than”
less proportion of votes was necessary, than in other treaties. In treaties of
peace the dearest interests will be at stake, as the fisheries, territories
In treaties of peace also there is more danger to the extremities of ©
Continent, of being sacrificed, than on any other occasions.

“Mr. Williamson thought that treaties of peace should be guarded
least by requiring the same concurrence as in other treaties.

“On motion of Mr. Madison and Mr. Butler

“N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md
Vaino... N.C. no. 8. Ceay;-- Geo, ay,

“On the part of the clause concerning treaties amended by the exce
as to treaties of peace.

“N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. ay. Md.
Va. ay. N.C. ay. S.C. ay. Geo. no.” as

Note 4.—Washington’s message was as follows:

“To the Gentlemen of the House of Representatives of the
States:

“ With the utmost attention I have considered your resolution of th
instant, requesting me to lay before your House, a copy of the instrt
to the minister of the United States, who negotiated the treaty with the
of Great Britain, together with the correspondence and other documents |
tive to that treaty, excepting such of the said papers, as any existing ne
tion may render improper to be disclosed.

+

1912.) oS OF THE UNITED STATES. 401

“In deliberating upon this subject, it was impossible for me to lose sight
of the principles which some have avowed in its discussion, or to avoid
extending my views to the consequences which must flow from the admis-
sion of that principle.

“T trust that no part of my conduct has ever indicated a disposition to
withhold any information which the constitution has enjoined it upon the
president as a duty to give, or which could be required of him by either house
of congress as a right; and with truth I affirm, that it has been, as it will
continue to be, while I have the honor to preside in the government, my
constant endeavor to harmonize with the other branches thereof, so far as
the trust delegated to me by the people of the United States, and my sense
of the obligation it imposes, to preserve, protect and defend the constitu-
tion will permit.

“The nature of foreign negotiations require caution, and their success
must often depend on secrecy; and even when brought to a conclusion, a full
disclosure of all the measures, demands, or eventual concessions which may
have been proposed or contemplated would be extremely impolitic; for this
might have a pernicious influence on future negotiations, or produce imme-
a diate inconveniences, perhaps danger and mischief to other persons. The
q necessity of such caution and secrecy was one cogent reason for vesting the
& power of making treaties in the president, with the advice and consent of the
3 ___ senate, the principle on which that body was formed confining it to a small
E number of members. To admit then a right in the house of representatives
4 to demand, and to have as a matter of course, all the papers respecting a

negotiation with a foreign ‘power, would be to establish a dangerous pre-
cedent.

“Tt does not occur that the inspection of the papers asked for, can be
relative to any purpose under the cognizance of the house of representatives,
except that of an impeachment, which the resolution has not expressed. I
repeat that I have no disposition to withhold any information which the
duty of my station will permit, or the public good shall require to be dis-
closed; and in fact, all the papers affecting the negotiation with Great
Britain were laid before the senate, when the treaty itself was communicated
for their consideration and advice.

“The course which the debate has taken on the resolution of the house,
leads to some observations on the mode of making treaties under the con-
stitution of the United States.

“Having been a member of the general convention, and knowing the
principles on which the constitution was formed, I have ever entertained but
one opinion upon this subject; and from the first establishment of the govern-
ment to this moment, my conduct has exemplified that opinion. That the
power of making treaties, is exclusively vested in the president, by and with
the advice and consent of the Senate, provided two thirds of the senators
present concur; and that every treaty so made and promulgated, thence- -
forward becomes the law of the land. It is thus that the treaty-making
power has been understood by foreign nations; and in all the treaties made
with them, we have declared, and they have believed, that when ratified by the

402 BURR—THE TREATY-MAKING POWER [April 20, —

president with the advice and consent of the senate, they become obligatory.
In this construction of the constitution, every house of representatives has
heretofore acquiesced; and until the present time, not a doubt or suspicion’
has appeared to my knowledge, that this construction was not the true one.
Nay, they have more than acquiesced; for until now, without controve
the obligation of such treaties, they have made all the requisite provisions for
carrying them into effect.

“There is also reason to believe that this construction agrees with the
opinions entertained by the state conventions when they were deliberating on
the constitution; especially by those who objected to it, because there was
not required in commercial treaties, the consent of two thirds of the whole
number of the members of the senate, instead of two thirds of the sena
present; and because in treaties respecting territorial and certain other rig
and claims, the concurrence of three fourths of the whole number of
members of both houses respectively, was not made necessary.

“Tt is a fact declared by the general convention and universally und
stood, that the constitution of the United States was the result of a.spirit
amity and mutual concession. And it is well known, that under this
ence, the smaller states were admitted to an equal representation in the sen

with great powers; for on the equal participation of those powers, |
sovereignty and political safety of the smaller states were deemed essenti
to depend.

of the department of state. In these journals it will appear, that a propositi
was made ‘that no treaty should be binding on the United States which °
not ratified by a law,’ and that the proposition was explicitly rejected.

“As therefore it is perfectly clear to my understanding that the as:
of the house of representatives is not necessary to the validity of a treaty;
the treaty with Great Britain exhibits in itself all the objects requiring |
lative provision; and on these the papers called for can throw no light;
as it is essential to the due administration of the government that ©
boundaries fixed by the constitution between the different departments sh
be preserved; a just regard to the constitution, and to the duty of my
under all the circumstances of this case, forbid a compliance with
request.” Richardson’s “ Messages of the Presidents,” Vol. L., pp. 104

Note 5-—“ Resolved that it being declared by the Second Section
Second Article of the Constitution that the President shall have pow
and with the advice and consent of the Senate, to make treaties, the
do not claim any agency in making treaties, but that when a treaty stip
regulations on any of the subjects submitted by the Constitution to
power of Congress, it must be dependent for its execution, as to
stipulations, on a law or laws to be passed by Congress. And it is the Cc
stitutional right and duty of the House in all such cases to deliberate

1912.) OF THE UNITED STATES. 403

3 expediency or inexpediency of carrying such treaty into effect, or to deter-
Bp mine an act thereon as in their judgment may be most conducive to the public
good.” Annals of Congress, 4th Congress, 1st Sess., p. 771.

é

4 Note 6—To support his proposition that the treaty-making power does
i = not extend to subjects committed to the legislation of Congress, Professor
® Mikell says: ;

, a “One branch of the treaty-making power itself has gone on record deny-
; a ing this power. In 1844, April 12, a treaty was signed at Washington, be-
7 _ tween the United States and the Republic of Texas, by which Texas trans-
ferred to the United States all its rights of separate and independent sover-

4 eignty and jurisdiction. Three resolutions were introduced by Mr. Benton,
j q May 13. They declared that the ratification of the treaty would be the adop-

tion by the United States of the Texan War, and that the treaty-making
power of the President and Senate did not include the power of making war,
either by declaration or adoption. On June 8, the treaty was rejected by the
Senate by a vote of 35 to 16.

“Immediately preceding the rejection of the treaty a resolution was
introduced by Mr. Henderson declaring that ‘such annexation would be
properly achieved . . . by an act of Congress admitting the people of Texas,
with defined boundaries, as a new State into the Union.’

“This course was followed and on March Ist, 1845, a joint resolution to
that effect was approved.”

This handling and interpretation of the political events accompanying
Texan annexation, is extraordinary. The clearly apparent explanation of the
actions of the two Houses of Congress, written large in the debates and in
American history, lies in the struggle over slavery, which ended in the Civil
War. There are, however, several recorded facts which, with detriment to
Professor Mikell’s argument but in the interests of accuracy, should be added
to his account. These are: that Mr. Benton’s resolutions did not pass; that
Mr. Henderson’s resolution did not pass; that the joint resolution was the
work of a new session of Congress held after a new election.

Note 7—The first eight amendments to the Constitution are as follows:

Article I. Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.

Article II. A well-regulated militia being necessary to the security of a
free state, the right of the people to keep and bear arms shall not be
infringed.

Article III. No soldier shall, in time of peace, be quartered in any

_ house, without the consent of the owner; nor, in time of war, but in a
| _ manner to be prescribed by law.
“s Article IV. The right of the people to be secure in their persons
_ houses, papers, and effects, against unreasonable searchers and seizures, shall
- not be violated; and no warrants shall issue, but upon probable cause, sup-
ported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

404 BURR—THE TREATY-MAKING POWER [April 20, _

Article V. No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment of a grand jury
except in cases arising in the land or naval forces, or in the militia, when in
actual service, in time of war, or public danger; nor shall any person be sub-
ject, for the same offense, to be twice put in jeopardy of life or limb; nor
shall be compelled, in any criminal case, to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation. :

Article VI. In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district shall.
have been previously ascertained by law; and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor; and to have
the assistance of counsel for his defense.

Article VII. In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact, tried by a jury, shall be otherwise reéxamined in any court of the
United States than according to the rules of the common law.

Article VIII. Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

Note 8—The language of the court is as follows: “ That it was com-
petent for the two countries by treaty to have superseded a prior Act of
Congress on the same subject is not to be doubted; for otherwise the decla
tion in the Constitution that a treaty, concluded in the mode prescribed by _
that instrument, shall be the supreme law of the land, would not have due
effect. As Congress may by statute abrogate, so far at least as this country
is concerned, a treaty previously made by the United States with another
nation, so the United States may by treaty supersede a prior Act of Congr:
on the same subject. In Foster & Elam vs. Neilson, 2 Pet. 253, 314, it
said that a treaty ‘was to be regarded in Courts of justice as equivalen
an Act of the legislature, whenever it operates of itself without the aid
any legislative provision.’ In the case of The Cherokee Tobacco, 11 Wall.
616, 621, this Court said ‘a treaty may supersede a prior Act of Congres:
and an Act of Congress may supersede a prior treaty.’ So in the |
Money Cases, 112 U. S., 580, 590, this Court said: ‘So far as a treaty
by the United States with any foreign nation can become the subject |
judicial cognizance in the Courts of this country, it is subject to such
as Congress may pass for its enforcement, modification or repeal.’ /
in Whitney vs. Robertson, 124 U. S., 190, 194: ‘ By the Constitution a
is placed on the same footing, and made of like obligation, with an A
legislation. Both are declared by that instrument to be the supreme
the land, and no superior efficacy is given to either over the other. Whe
two relate to the same subject, the Courts will always endeavor to coi
them so as to give effect to both, if that can be done without violating
language of either; but if the two are inconsistent, the one last in da

1912.] OF THE UNITED STATES. 405

control the other, provided always that the stipulation of the treaty on the
subject is self-executing.’ See also Taylor vs. Morton, 2 Curtis, 454, 450;
Clinton Bridge Case, 1 Woolworth, 155; Ropes vs. Church, 8 Blatchf., 304;
2 Story on Const., Sec. 1838. Nevertheless, the purpose by statute to abro-
gate a treaty or any designated part of a treaty, or the purposes by treaty to
supersede the whole or a part of an Act of Congress, must not be lightly
assumed, but must appear clearly and distinctly from the words used in the
statute or in the treaty.”

Note 9.—The language of the court is as follows: “As was said by
Chief-Justice Marshall in The Peggy, 1 Cranch, 103, 110: ‘ Where a treaty is
the law of the land, and as such affects the rights of parties litigating in
Court, that treaty as much binds those rights, and is as much to be regarded
by the Court as an Act of Congress.’ And in Foster vs. Neilson, 2 Pet. 253,
314, he repeated this in substance: ‘Our Constitution declares a treaty to be
the law of the land. It is, consequently, to be regarded in Courts of justice
as equivalent to an Act of the legislature, whenever it operates of itself
without the aid of any legislative provision.’ So in Whitney vs. Robertson,
124 U. S., 190: ‘ By the Constitution a treaty is placed on the same footing,
and made of like obligation, with an act of legislation. Both are declared by
that instrument to be the supreme law of the land, and no superior efficacy
is given to either over the other. When the two relate to the same subject,
the Courts will always endeavor to construe them so as to give effect to both.
if that can be done without violating the language of either; but if the two
are inconsistent, the one last in date will control the other, provided always
that the stipulation of the treaty on the subject is self-executing.’ To the
same effect are The Cherokee Tobacco, 11 Wall., 616, and the Head Money
Cases, 112 U. S., 580.”

Note to—Mr. Justice Wilson said: “But even if Virginia had the
power to confiscate, the treaty annuls the confiscation. The fourth Article
is well expressed to meet the very case: it is not confined to debts existing -
at the time of making the treaty; but is extended to debts heretofore con-
tracted. It is impossible by any glossary, or argument, to make the words
more perspicuous, more conclusive, than by a bare recital. Independent,
therefore, of the Constitution of the United States (which authoritatively
inculcates the obligation of contracts) the treaty is sufficient to remove every
impediment founded on the law of Virginia. The State made the law; the
State was a party to the making of the treaty; a law does nothing more
than express the will of a nation; and a treaty does the same.”

Note 11—Mr. Justice Iredell said: “The opinion I have long enter-
tained, and still do entertain, in regard to the operation of the fourth article
is, that the stipulation in favor of creditors, so as to enable them to bring
suits, and recover the full value of other debts, could not at that time be
carried into effect in any other manner, than by a repeal of the statutes of
the different States, constituting the impediments to their recovery, and the
passing of such other acts as might be necessary to give the recovery entire
efficacy, in execution of the treaty.”

406 BURR—THE TREATY-MAKING POWER [April 20,

Note 12.—Additional comment upon this case made by Professor Mikell
is as follows: “In Ware vs. Hylton, it was decided that a law of Virginia,
passed in 1777, which provided that any citizen of Virginia, owing money to
a subject of Great Britain, might pay the same into the loan office of the
State and be discharged of the debt, was abrogated by the treaty of 1783,
between the United States and England. This treaty provided that the
creditors of either of the contracting parties should meet with no lawful
impediment to the recovery of all debts theretofore contracted.

“Tt is submitted that this case is no authority for the broad proposition
that the treaty-making power is not limited by the reserved rights of the
States. In the first place the treaty in question was entered into by the
Continental Congress before the adoption of the present Constitution. Now
the method of entering into a treaty under the confederation differed from
that under the Constitution. Under the confederation each state was entitled
to only one vote in Congress and Congress could make no treaty without
the consent of nine States. As there were thirteen states in the confedera-
tion, this meant that the assent of three-fourths of all the States was neces- —
sary to the making of a treaty. Under the present Constitution a treaty is
not so directly the act of a State, and that assent of three-fourths of the
States is not necessary. Each State has two Senators and they may not vote
in unison; but, more important is the difference that the Constitution does
not require the assent of three-fourths or even of two-thirds of the States to
the making of a treaty, but only the assent of two-thirds of the Senators
present when the treaty is voted on. It might well be then that greater
force should be allowed to a treaty negotiated by the States in the Con-
tinental Congress where they acted much as independent States in a league, —
than under the present Constitution where the vote on treaties is not by
States at all. The position of the States in the Confederation seems to be —
referred to by Wilson, J. where he says (p. 281): ‘The State made the la :
the State was a party to the making of the treaty; a law does nothing mo
than express the will of a nation; a treaty does the same’ Again the
decision in Ware vs. Hylton that a treaty overrides a state law confiscating
debts due foreigners is not a decision that the treaty-making power under the
Constitution can be used to deprive a State of any of its reserved rights ;
for while this right of confiscation did exist in Virginia before the present
Constitution it was not only not reserved, but is expressly surrendered by
the Constitution—in that section providing that no State shall pass aig
impairing the obligations of a contract.

“Indeed, the very reason the States were so careful to insist on an
pression of their reserved rights, in framing the present Constitution,
because, by the new Constitution, they had in general created a more €
tralized government than existed under the Confederation.

“What the case really decides is that any treaty made inde |
Articles of Confederation and which was valid under the Articles of (
federation was valid by adoption after the Constitution was adopted.” .
American Law Register, Vol. 57, pp. 540-2. 2

1912.] OF THE UNITED STATES. 407

Note 13—The language of the Court is as follows: “In 1796, but a few
years later, this Court said: ‘If doubts could exist before the adoption of the
present national government, they must be entirely removed by the sixth
article of the Constitution, which provides that “all treaties made or which
shall be made under the authority of the United States, shall be the supreme
law of the land, and the judges in every State shall be bound thereby, any-
thing in the Constitution or laws of any State to the contrary notwithstand-
ing.” There can be no limitation on the power of the people of the United
States. By their authority the State Constitutions were made, and by their
authority the Constitution of the United States was established; and they had
the power to change or abolish the State Constitution or to make them yield
to the general government and to treaties made by their authority. A treaty
cannot be the supreme law of the land, that is, of all the United States, if
any act of a State legislature can stand in its way. If the Constitution of a
State (which is the fundamental law of the State and paramount to its
legislature) must give way to a treaty and fall before it, can it be questioned
whether the less power, an act of the State legislature, must not be prostrate?
It is the declared will of the people of the United States that every treaty
made by the authority of the United States shall be superior to the Constitu-
tion and laws of any individual State, and their will alone is to decide. If
a law of a State contrary to a treaty is not void, but voidable only, by a repeal
_ of nullification by a State legislature, this certain consequence follows,—that
_ the will of a small part of the United States may control or defeat the will
of the whole.’ Ware vs. Hylton, 3 Dall., 199. It will be observed that the
treaty-making clause is retroactive as well as prospective. The treaty in
question, in Ware vs. Hylton, was the British treaty of 1783, which terminated
the war of the American Revolution. It was made while the Articles of Con-
federation subsisted. The Constitution, when adopted, applied alike to
treaties ‘made and to be made.’ . . .
“In Chirac vs. Chirac (2 Wheat., 259), it was held by this Court that a
treaty with France gave to her citizens the right to purchase and hold land in
_ the United States, removed the incapacity of alienage and placed them in pre-
_ cisely the same situation as if they had been citizens of this country. The
State law was hardly adverted to, and seems not to have been considered a
factor of any importance in this view of the case. The same doctrine was
reafirmed touching this treaty in Carneal vs. Banks (10 id., 181), and with
respect to the British treaty of 1794, in Hughes vs. Edwards (9 id., 489). A
treaty stipulation may be effectual to protect the land of an alien from for-
_ feiture by escheat under the laws of a State. Orr vs. Hodgson, 4 id., 453.
By the British treaty of 1794, ‘all impediment of alienage was absolutely
- levelled with the ground despite the laws of the States. It is the direct con-
stitutional question in its fullest condition. Yet the Supreme Court held
_ that the stipulation was within the constitutional powers of the Union.”

; Note 14—As is well known, after this decision, Congress, passed the
- Wilson Act (26 Stat., 713) which was construed by the Supreme Court as
constituting an adoption by Congress of a special rule enabling the States

408 BURR—THE TREATY-MAKING POWER (Apia

to extend their otherwise non-existent authority to liquors shipped from other |
States before they became commingled with the property in the State by sale
in the original package. It was also construed as not applicable to interstate —
shipments made to a consignee for his own use and not for sale. For the
particular application of these principles, see:

In re Rahrer, 140 U. S., 545 (1801).

Crutcher vs. Kentucky, 141 U. S., 47 (1801).
Brennan vs. Titusville, 153 U. S., 289 (1894).
Vance vs. Vandercook, 170 U. S., 438 (1898).
Caldwell vs. North Carolina, 187 U. S., 622 (1903).
N. & W. R. R. Co. vs. Sims, 191 U. S., 441 (1903).
Am. Ex. Co. vs. Iowa, 196 U. S., 133 (1905).

Pabst Brewing Co. vs. Crenshaw, 198 U. S., 17 (1905).
Foppiano vs. Speed, 199 U. S., 501 (1905).

Heyman vs. Southern Ry. Co., 203 U. S., 270 (1906).
Rearick vs. Pennsylvania, 203 U. S., 507 (1906).
Delamater vs. So. Dakota, 205 U. S., 93 (1907).

In this connection, it may be well to note that in a recent work on “The —
Treaty Power under the Constitution of the United States,” by R. T. Devlin,
Esq.—a work valuable for the careful collection of authorities and precedents
—one finds in the Index under the caption “ State supreme in police power,” —
one case cited, and one only, as controlling this subject. It is the case of
Cantini vs. Tillman, 54 Fed. Rep., 969 (1803). This is also cited by Pro-
fessor Mikell as showing that the judge did “not conceive of the cases
beginning with Ware vs. Hylton, and ending with Hauenstein vs. Lynham, as
having established the doctrine of the supremacy of the treaty-making power
over the reserved powers of the States,” p. 553. The suit was one brought
to determine the constitutionality of the South Carolina “ Dispensary Act.”
The Federal district judge, Judge Simonton, sat as circuit judge, and held that
the Wilson Act was applicable, and that the South Carolina statute was
constitutional. After disposing of the case on the authority of the Sule
Court decisions construing the Wilson Act, Judge Simonton added:

“Tt is urged in behalf of those complainants that they are Italian sub-
jects, and are protected by the treaty stipulations between Italy and th
United States. ...

“Under these articles the complainants have the same rights as citiz
of the United States. It would be absurd to say that they had greater rights.
We have seen that the right to sell intoxicating liquors is not a right inherer
in a citizen, and is not one of the privileges of American citizenship; tha
is not within the protection of the fourteenth amendment; that it is within
the police power. The police power is a right reserved by the States,
has not been delegated to the general government. In its lawful exercise, t
States are absolutely sovereign. Such exercise cannot be affected by i
treaty stipulation,” p. 976.

No extended comment is necessary. In the first part of his opinion the
judge had shown that the Act of Congress had made the State statute con-

1912.) OF THE UNITED STATES. 409

_ stitutional. He cannot be presumed to have intended by his closing words to
___ contradict his own argument, to say that, apart from that act, the statute was
3 constitutional, and Leisy vs. Hardin was not law. Moreover, he had just
shown that the treaty had by its terms no application whatever; his language
therefore must be interpreted with reference to the facts before him and in

__ felation to his whole opinion. In no event, can it properly be cited as estab-

> lishing the statement of Mr. Devlin, or the contention of Professor Mikell.
a It is significant that neither, while quoting at length this and the License
4 Cases, make the slightest reference to Leisy vs. Hardin and cognate decisions.

Note 15—The facts necessary to a full comprehension of all the ques-
tions involved in this dispute are too complex to be inserted in the body of
this essay, as they are strictly relevant only to questions other than the one
discussed. Inasmuch, however, as they afford an admirable illustration of
how, practically, the question of the right of the United States to enforce
treaty provisions, may arise, they are here stated in the language of Mr.
Root, the then Secretary of State: “ The treaty of November 22, 1894, be-
tween the United States and Japan provided, in the first article:

“*The citizens or subjects of each of the two high contracting parties
shall have full liberty to enter, travel, or reside in any part of the territory of

the other contracting party and shall enjoy full and perfect protection for
_. their persons and property. . . . In whatever relates to rights of residence and
_ travel; to the possession of goods and effects of any kind; to the succession
to personal estate, by will or otherwise, and the disposal of property of any
sort and in any manner whatsoever which they may lawfully acquire, the
citizens or subjects of each contracting party shall enjoy in the territories of
the other the same privileges, liberties, and rights, and shall -be subject to no
higher imposts or charges in these respects than native citizens or subjects
or citizens or subjects of the most favored nation.’

“ The Constitution of the State of California provides, in Article 9:

“*Section 1. A general diffusion of knowledge and intelligence being
__ essential to the preservation of the rights and liberties of the people, the
_ legislature shall encourage by all suitable means the promotion of intellectual,
scientific, moral and agricultural improvement.

“*SectTion 5. The legislature shall provide for a system of common
schools, by which a free school shall be kept up and supported in each
district at least six months in every year, after the first year in which a
school has been established.

-“*Section 6. The public school system shall include primary and
grammar schools, and such high schools, evening schools, normal schools
and technical schools as may be established by the legislature, or by municipal
or district authority. The entire revenue derived from the State school fund
and from the general State school tax shall be applied exclusively to the
support of the primary and grammar schools.’

“The Statutes of California establish the public school system required
by the Constitution. They provide that the State comptroller must each year
_ estimate the amount necessary to ‘raise the sum of seven dollars for each

410 BURR—THE TREATY-MAKING POWER [April 20,

census child between the ages of five and seventeen years in the said State
of California, which shall be the amount necessary to be raised by ad valorem
tax for the school purposes during the year.’

“The Statutes further provide that the board of education of San
Francisco shall have authority ‘to establish and enforce all necessary rules
and regulations for the government and efficiency of the schools (in that
City) and for the carrying into effect the school system; to remedy truancy;
and to compel attendance at school of children between the ages of six and
fourteen years, who may be found idle in public places during school hours.’

“The Statutes further provide, in Section 1662 of the School law: ‘ Every
school, unless otherwise provided by law, must be open for the admission
of all children between six and twenty-one years of age residing in the dis-
trict, and the board of school trustees, or city board of education, have
power to admit adults and children not residing in the district, whenever
good reasons exist therefor. Trustees shall have the power to exclude
children of filthy or vicious habits, or children suffering from contagious or
infectious diseases, and also to establish separate schools for Indian children
and for children of Mongolian or Chinese descent. When such separate
schools are established, Indian, Chinese, or Mongolian children must not be
admitted into any other school.

“On the 11th of October, 1906, the board of education of San Fran-
cisco adopted a resolution in these words:

‘Resolved: That in accordance with Article X, Section 1662, of the ©
school law of California, principals are hereby directed to send all Chinese,
Japanese, or Korean children to the Oriental Public School, situated on the
South side of Clay Street, between Powell and Mason Streets, on and after
Monday, October 15, 1906.’ 5

“The school system thus provided school privileges for all resident
children, whether citizen or alien, all resident children were included in the
basis for estimating the amount to be raised by taxation for school purposes;
the fund for the support of the school was raised by general taxation upon
all property of resident aliens as well as of citizens; and all resident children,

-whether of aliens or of citizens, were liable to be compelled to attend the
schools. So that, under the resolution of the board of education, the children
of resident aliens of all other nationalities were freely admitted to the schools _
of the city in the neighborhood of their homes, while the children of Indians,
Chinese and Japanese were excluded from those schools, and were not only
deprived of education unless they consented to go to the special oriental
school on Clay Street, but were liable to be forcibly compelled to go to the "
particular school. ;

“ After the passage of this resolution, admission to the ordinary primary
schools of San Francisco was denied to Japenese children, and thereupon the
government of Japan made representations to the government of the United —

States that inasmuch as the children of residents who were citizens of all eo

other foreign countries were freely admitted to the schools, the citizens of
Japan residing in the United States were, by that exclusion, denied the same — a
privileges, liberties, and rights relating to the right of residence which were -

1912.] OF THE UNITED STATES. 411

accorded to the citizens or subjects of the most favored nation. The ques-
tion thus raised was promptly presented by the government of the United
States to the federal court in California, and also to the state court of Cali-
ta fornia, in appropriate legal proceedings. a eas ;
ia “It is obvious that three distinct questions were raised by the claim
4 originating with Japan and presented by our national government to the
courts in San Francisco. The first and second were merely questions of
construction of the treaty. Was the right to attend the primary schools a
right, liberty, or privilege of residence? and, if so, was the limitation of
- Japanese children to the oriental school and their exclusion from the ordi-
i ' _ nary schools a deprivation of that right, liberty, or privilege? . . -
| “The other question was whether, if the treaty had the meaning which
the government of Japan ascribed to it, the government of the United States
had the constitutional power to make such a treaty agreement with a foreign
. nation which should be superior to and controlling upon the laws of the
4 State of California.” American Journal of International Law, Vol. 1., Part
I, pp. 274-276-277.

Note 16—*“It would, I believe, be entirely competent for Congress to
make offenses against the treaty rights of foreigners domiciled in the United
States cognizable in the Federal Courts. This has not, however, been done,

- and the Federal officers and Courts have no power in such cases to intervene,
either for the protection of a foreign citizen or for the punishment of his
slayers. It seems to me to follow, in this state of the law, that the officers of
the State charged with police and judicial powers in such cases must in the
consideration of international questions growing out of such incidents be
regarded in such sense as Federal agents as to make this Government answer-
able for their acts in cases where it would be answerable if the United States
had used its constitutional power to define and punish crime against treaty
rights.” Richardson’s “ Messages of the Presidents,” Vol. 9, p. 183.

Note 17—* A bill to provide for the punishment of violations of treaty
rights of aliens was introduced in the Senate March 1, 1892, and reported
favorably March 30th. Having doubtless in view the language of that part
of Article III, of the treaty of February 26, 1871, between the United States
and Italy, which stipulates that ‘the citizens of each of the high contracting
parties shall receive, in the States and Territories of the other, most constant

_ protection and security for their persons and property, and shall enjoy in
this respect the same rights and privileges as are or shall be granted to the
natives, on their submitting themselves to the conditions imposed upon the
natives,’ the bill so introduced and reported provided that any act committed
in any State or Territory of the United States in violation of the rights of a
citizen or subject of a foreign country secured to such citizen or subject by
treaty between the United States and such foreign country and constituting
a crime under the laws of the State or Territory shall constitute a like crime
against the United States and be cognizable in the Federal courts. No action
was taken by Congress in the matter.

“I earnestly recommend that the subject be taken up anew and acted

412 BURR—THE TREATY-MAKING POWER [April 20,

upon during the present session. The necessity for some such provision
abundantly appears. Precedent for constituting a Federal Jurisdiction in
criminal cases where aliens are sufferers is rationally deducible from the
existing statute, which gives to the district and circuit Courts of the United
States jurisdiction of civil suits brought by aliens where the amount involved
exceeds a certain sum. If such jealous solicitude be shown for alien rights in
cases of merely civil and pecuniary import, how much greater should be the
public duty to take cognizance of matters affecting the lives and the rights
of aliens under the settled principles of international law no less than under
treaty stipulation, in cases of such transcendent wrong doing as mob murder,
especially when experience has shown that local justice is too often helpless
to punish the offenders.” Richardson’s “ Messages of the Presidents,” Sup-—
plement, 1899-1902, pp. 69-70.

Note 18—*“I renew the urgent recommendations I made last year that
the Congress appropriately confer upon the Federal Courts jurisdiction in
this class of international cases where the ultimate responsibility of the
Federal Government may be involved, and I invite action upon the bills
to accomplish this which were introduced in the Senate and House. It is
incumbent upon us to remedy the statutory omission which has led, and may —
again lead, to such untoward results. I have pointed out the necessity and
the precedent for legislation of this character. Its enactment is a simple
measure of previsory justice toward the nations with which we as a sovereign -
equal make treaties requiring reciprocal observance.” Ibid., p. 128.

Note 19.—These Sections so amended would read substantially as follows:

Section 5336. If two or more persons in any state or territory con-—
spire .. . by force to prevent, hinder, or delay the execution of any law or
treaty of the United States; . . . each of them shall be punished by a fine of —
not less than five hundred dollars and not more than five thousand dollars; —
or by imprisonment with or without hard labor, for a period not less than
six months nor more than six years, or by both such fines and imprisonment. _

Section 5508. If two or more persons conspire to injure, oppress, —
threaten, or intimidate any person being within any state or territory in the
free exercise or enjoyment of any right or privilege secured to him by the
constitution or laws of the United States, or under any treaty of the United
States, or because of his having so exercised the same; or if two or more
persons go in disguise on the highway or on the premises of another, with
intent to prevent or hinder his free exercise or enjoyment of any right or
privilege so secured, they shall be fined not more than five thousand dollars,
and imprisoned not more than ten years; and shall, moreover, be thereafter
ineligible to any office, or place of honor, profit, or trust created by the con-
stitution, or laws of the United States.

Section 5509. If in the act of violating any provision in either of a ce
two preceding sections any other felony or misdemeanor be committed, the —
offender shall be punished for the same with such punishment as is attached —
to.such felony or misdemeanor by the laws of the state in which the offence
is committed.

1912.] -

OF THE UNITED STATES.

413

Note 20.—This act as reported was as follows: “Be it enacted by the
Senate and House of Representatives of the United States of America, in
Congress assembled, that any act committed in any state or territory of the
United States in violation of the rights of a citizen or subject of a foreign
country secured to such citizen or subject by treaty between the United
States and such foreign country, which act constitutes a crime under the
laws of such state or territory, shall constitute a like crime against the peace
and dignity of the United States, punishable in like manner as in the courts
of said state or territories, and within the period limited by the laws of such
state or territory, and may be prosecuted in the courts of the United States,
and upon conviction, the sentence executed in like manner as sentences upon
convictions for crimes under the laws of the United States.”

DS et ane fermentation RUE A SND resien
sensi iN OSS tanar es i a a oa a ae la a eh a, 1 el
lit A ait SD ah oe aed al Peper ter . p Sint

TABLE OF CASES.

Abbagnato ads. New Orleans, 62 Fed.
240 (1894), 394

American Ex. Co. vs. Iowa, 196 U. S,
133 (1905), 408

American Ins. Co. vs. Canter, 1 Peters
511 (1828), 293

American Pub. Co. vs. Fisher,
U.S. 464 (1897), 303n.

__ Baldwin vs. Franks, 120 U. S. 678
__ (1887), 322-323, 385, 394

_ B.&O.R. R. Co. ads. Maiorano, 213
U. S. 268 (1909), 355-356

Banks ads. Carneal, 10 Wheaton, 181
(1825), 352-353: 355

Bartram vs. Robertson, 122 U. S. 116
(1887), 317

Biddle ads. Green, 8 Wheat. 1 (1823),
302

Bidwell ads. DeLima, 182 U. S. 1
(1901), 293-298, 321-322

Bidwell ads. Downes, 182 U. S. 244
(1901), 293-298, 301

Brennan: vs. Titusville, 153 U. S. 289
(1894), 408

Brown vs. Maryland, 12 Wheaton 419
(1827), 366-368, 369, 373

Browne ads. Johnson, 205 U. S. 309
(1907), 321, 324

166

Caldwell vs. North Carolina, 187 U. S.
622 (1903), 408

Callan vs. Wilson, 127 U.S. 540 (1888),
303n.

Canter ads. American Ins.
Peters 511 (1828), 293

Cantini vs. Tillman, 54 Fed. 969 (1893),
408

Carneal vs. Banks, 10 Wheaton 181
(1825), 352-353, 355

Chae Chan Ping vs. United States, 130
U. S. 581 (1889), 319

Cherokee, Tobacco, The, 11 Wall 616
(1870), 314

Chew Heong vs. United States, 112
U. S. 536 (1884), 318-319

Chirac vs. Chirac, 2 Wheaton 259
(1817), 350-351, 355

City of New York vs. Miln, 11 Peters
102 (1837), 350, 367-368, 372

Clarke, Ex Parte, 100 U. S. 399 (1879),

Os Sh

385

Clerke vs. Harwood, 3 Dallas 342
(1797), 345

Cook vs. United States, 138 U. S. 157
(1891), 303n.

Crenshaw ads. Pabst Brewing Co., 198
U.S. 17 (1905), 408

PROC, AMER. PHIL. SOC., LI, 206 X, PRINTED OCT. 21, 1912.

414 BURR—THE TREATY-MAKING POWER

Cross vs. Harrison, 16 Howard 164
(1853), 296

Crutcher vs. Kentucky, 141 U. S. 47
(1891), 408

Davis ads. State of Tennessee, 100
U.S. 257 (1879), 383-4, 385

Debs, In re: 158 U. S. 564 (1895),
389-391, 393

Delamater vs. South Dakota, 205 U. S-
93 (1907), 408

DeLima vs. Bidwell, 182 U.S. 1 (1901)»
293-298, 321-322

Dorr vs. United States, 195 U. S. 138
(1904), 304

Dooley vs. United States, 182 U. S. 222
(1901), 293n.

Dooley vs. United States, 183 U.S. 151
(1901), 293n.

Downes vs. Bidwell, 182 U. S. 244
(1901), 293-298, 301

Edwards ads. Hughes, 9 Wheaton 489
(1824), 352, 355

Employers’ Liability Cases, 207 U. S,
463 (1908), 392

Fairfax vs. Hunter, 7 Cranch 603
(1812), 346-350

Fattosini; Matter of, 67 N. Y. Supp,
I119 (1902), 306n.

Fisher ads. American Pub. Co. 166;
U. S. 464 (1897), 303n.

Fleeger ads. Poole, 11 Peters 185
(1837), 302

Fleming vs. Page, 9 Howard 603
(1850), 296

Fletcher vs. Rhode Island, 5 How. 504
(1847), 359-360, 370-372, 397

Fok Yung Yo vs. United States, 185
U. S. 296 (1902), 322, 325

Foppiano vs. Speed, 199 U. S. 501
(1905), 408

Fort Leavenworth R. R. Co. vs. Lowe,
114 U.S. 525 (1885), 300

Forty-three Gallons Whiskey ads.
United States, 93 U. S. 188 (1876),
316

[April 20,

Foster & Elam vs. Neilson, 2 Peters
253 (1829), 309-313, 324

Fourteen Diamond Rings ads. United
States, 183 U. S. 176 (1901), 293n.

Franks ads. Baldwin, 120 U. S. 678
(1887), 322-323, 385, 394

Frederickson vs. Louisiana, 23 Howard
445 (1859), 358

Garcia vs. Lee, 12 Peters 511 (1838),
313

Geofroy vs. Riggs, 133 U.S. 258 (1890),
300, 320-321, 325, 357Nn.

Georgia ads. Worcester, 6 Peters 515
(1832), 353-355, 376

Gibbons vs. Ogden, 9 Wheaton I
(1824), 364-366, 368-373

Green vs. Biddle, 8 Wheaton 1 (1823),
302

Greneaux ads. Prevost, 19 How. 1
(1856), 356

Gulf, Colorado, etc., Ry. Co. vs. Hefley,
158 U. S. 98 (1895), 374

Hardin ads. Leisy, 135 U.S. 100 (1890),
369-372, 408

Harrison ads. Cross, 16 How. 164
(1853), 296

Harwood ads. Clerke, 3 Dallas 342

(1797), 345

Hauenstein vs. Lynham, 100 U. S. 483
(1879), 355, 357

Hawaii vs. Mankichi, 190 U. S. 197
(1903), 300, 303-304

Head Money Cases, 112 U. S. 580
(1884), 315-316, 317

Hefley ads. Gulf, Colorado, etc., Ry.
Co., 158 U. S. 98 (1895), 374

Heinszen ads. United States, 206 U. S.
370 (1907), 293n.

Heyman vs. Southern Ry. Co., 203
U. S. 270 (1906), 408

Hodgson ads. Orr, 4 Wheaton, 453
(1819), 351-352, 355

Holmes, Ex-Parte 12 Vt. 631 (1840),
368n.

Holmes vs. Jennison, 14 Peters 540

(1840), 358, 368

PPLE EIU a) ee

a a an le

1912.)

Hunter ads. Fairfax, 7 Cranch 603

(1812), 346-350
Hughes vs. Edwards, 9 Wheaton 489

(1824), 352, 355
Hylton ads. Ware, 3 Dallas 199 (1796),

329, 339-345, 355, 357, 373

Insular Cases, 182 U.S. 1 (1901), 293-
298

Iowa ads. American Ex. Co., 196 U. S.
133 (1905), 408

Jennison ads. Holmes, 14 Peters 540

(1840), 358, 368
Johnson vs. Browne, 205 U. S. 309

(1907), 321, 324

Kentucky ads. Crutcher, 141 U. S. 47

(1891), 408

Kibbe ads. Pollard, 14 Peters 353
(1840), 313

Lee ads. Garcia, 12 Peters 511 (1838),
313

Lee Yen Tai ads. United States, 185
U. S. 213 (1902), 321
Leisy vs. Hardin, 135 U. S. 100 (1890),
369-372, 408
License Cases:
Thurlow vs. Massachusetts,
Fletcher vs. Rhode Island,
Peirce vs. New Hampshire,
5 Howard, 504 (1847),
359-360, 369-372, 397
Lincoln vs. United States, 197 U. S.
419 (1905), 293n.
Logan vs. United States, 144 U. S. 263
(1892), 388-389
Lobrasciano; Matter of, 77 N. Y.
Supp. 1040 (1902), 306n.
Louisiana ads. Frederickson, 23 How-
ard 445 (1859), 358
Louisiana ads. Morgan, 118 U.S. 455
(1886), 374
Louisiana Light Co. ads. New Orleans
Gas Co., 115 U. S. 650 (1885), 374
Lowe ads. Fort Leavenworth R. R. Co.,
114 U. S. 525 (1885), 300.

OF THE UNITED STATES.

415

Lucas ads. Strother, 12 Peters 410
(1838), 313

Lynham ads. Hauenstein, 100 U. S.
483 (1879), 355, 357

Maiorano vs. B. & O. R. R. Co., 213
U. S. 268 (1909), 355-356

Mankichi ads. Hawaii, 190 U. S. 197
(1903), 300, 303-304

Maryland ads. Brown, 12 Wheaton 419
(1827), 366-368, 369, 373

Maryland ads. McCulloch, 4 Wheaton
316 (1819), 389

Massachusetts ads. Thurlow, 5 How.
504 (1847), 359-360, 370-372

McCulloch vs. Maryland, 4 Wheaton
316 (1819), 389

Miln ads. City of New York, 11 Peters
102 (1837), 350, 367-368, 372

Minnesota ads. Stearns, 179 U. S. 223
(1900), 302

Morgan vs. Louisiana, 118 U. S. 455
(1886), 374

Morton ads. Taylor,
(1885), 314, 317

2 Curtis 454

Neagle; In re, 135 U.S. 1 (1890), 381-
382, 386-388

Neilson ads. Foster and Elam, 2
Peters, 253 (1829), 309-313, 324

New Hampshire ads. Peirce, 5 How.
504 (1847), 359-360, 370-372

New Orleans vs. Abbagnato, 62 Fed.
240 (1894), 394

New Orleans Gas Co. vs. Louisiana
Light Co., 115 U. S. 650 (1885), 374

New York vs. Miln, 11 Peters 102
(1837), 350, 367-368, 372

Nishimura Ekiu vs. United States, 142
U. S. 651 (1892), 321

N. & W. R. R. Co. vs. Sims, 191 U. S.
441 (1903), 408

North Carolina ads. Caldwell,
U. S. 622 (1903), 408

Ogden ads. Gibbons, 9 Wheaton I
(1824), 364-366, 368-373

187

416

Ohio vs. Thomas, 173 U. S. 276 (1899),
391

Orr vs. Hodgson, 4 Wheaton, 453

(1819), 351-352, 355

Pabst Brewing Co. vs. Crenshaw, 198
U. S. 17 (1905), 408

Page ads. Fleming, 9 Howard 603
(1850), 296

Passenger Cases, 7 Howard 282 (1849)
360-361, 372

Pearcy vs. Stranahan, 205 U. S. 257
(1907), 293n.

Peggy, Schooner ads. United States, 1
Cranch 103 (1801), 308-309, 324,
325

Peirce vs. New Hampshire, 5 Howard
504 (1847), 359-360, 370-372

Pennsylvania ads. Rearick, 203 U. S.
507 (1906), 408

Percheman ads. United States, 7 Peters
51 (1833), 312-313

Pollard vs. Kibbe, 14 Peters, 353
(1840), 313

Poole vs. Fleeger, 11 Peters 185 (1837)-
302

Prevost vs. Greneaux, 19 Howard 1
(1856), 356

Rahrer; In re, 140 U.S. 545 (1891), 408

Rassmussen vs. United States, 197
U.S. 516 (1905), 344n.

Rauscher ads. United States, 119 U. S,
407 (1886), 316, 368

Rearick vs. Pennsylvania, 203 U.S. 507
(1906), 408

Rhode Island ads. Fletcher, 5 How,
504 (1847), 359-360, 370-372, 397

Riggs ads. Geofroy, 133 U.S. 258 (1890),
300, 320-321, 325, 3570.

Robertson ads. Bartram, 122 U.S. 116
(1887), 317

Robertson ads. Whitney, 124 U. S. Igo
(1888), 317

Rocca vs. Thompson, 157 Cal.
(1910), 306n.

Ross; In re, 140 U.S. 453 (1891), 305

59?

BURR—THE TREATY-MAKING POWER

[April 20,

Schooner Peggy ads. United States, 1
Cranch 103 (1801), 308-309, 324, 325

Shaw ads. Wilson, 204 U. S. 24 (1907),
297n.

Siebold, Ex Parte, 100 U. S. 371 (1879),
384, 385

Sims ads. N. & W. R. R. Co., 191 U.S.
441 (1903), 408

South Dakota ads.
U. S. 93 (1907), 408

Southern Ry. Co. ads. Heyman, 203
U. S. 270 (1906), 408

Speed ads. Foppiano, 199 U. S. 501
(1905), 408

State of Georgia ads. Worcester, 6
Peters 515 (1832), 353-355, 376

State of Louisiana ads. Frederickson,
23 Howard 445 (1859), 358

State of Maryland ads. Brown, 12
Wheaton 419 (1827), 366-368, 369, 373

State of Maryland ads. McCulloch, 4
Wheaton 316 (1819), 389

State of Massachusetts ads. Thurlow,
5 How. 504 (1847), 359-360, 370-372

State of Minnesota ads. Stearns, 179
U. S. 223 (1900), 302

State of New Hampshire ads. Peirce,
5 How. 504 (1847), 359-360, 360-372

State of Ohio vs. Thomas, 173 U.S. 276
(1899), 391°

State of Rhode Island ads. Fletcher, 5
How. 504 (1847), 359-360, 370-372,
397

State of Tennessee vs. Davis, 100 U. S.
257 (1879), 383-384, 385

State of Tennesee ads. State of Vir-
ginia, 148 U. S. 503 (1893), 302

State of Utah ads. Thompson, 170 U. S.-
343 (1898), 303n. ‘

State of Virginia vs. State of Tennessee, —
148 U.S. 503 (1893), 302

Stearns vs. Minnesota, 179 U. S. 223
(1900), 302 a

Stranahan ads. Pearcy, 205 U. S. 257
(1907), 293n. he

Lucas,

Delamater, 205

Strother vs.
(1838), 313

12 Peters a

1912.] OF THE UNITED. STATES. 417

Taylor vs. Morton, 2 Curtis, 454
(1855), 314, 317

Tennessee vs. Davis, 100 U. S. 257
(1879), 383-384, 385

Tennessee ads. Virginia, 148 U. S.
503 (1893), 302

Thomas ads. State of Ohio, 173 U. S
276 (1899), 391

Thompson ads. Rocca, 157 Cal. 552
(1910), 306 n.

Thompson ads. Utah, 170 U. S. 343
(1898), 303n. E

Tillman ads. Cantini, 54 Fed. 969
(1893), 408

Titusville ads. Brennan, 153 U. S. 289
(1894), 408

Thurlow vs. Massachusetts, 5 How.
504 (1847), 359-360, 370-372

United States ads. Chae Chan Ping,
130 U.S. 581 (1889), 319

United States ads. Chew Heong, 112
U. S. 536 (1884), 318-319

United States ads. Cook, 138 U. S. 157
(1891), 303n.

United States ads. Dooley, 182 U. S.
222 (1901), 293n.

- United States ads. Dooley, 183 U. S.

151 (1901), 293n.

_ United States ads. Dorr, 195 U.S. 138

(1904), 304
United States ads. Fok Yung Yo, 185
U. S. 296 (1902), 322, 325
United States vs. Forty-three Gallons
of Whiskey, 93 U. S. 188 (1876), 316
United States vs. Fourteen Diamond
Rings, 183 U.S. 176 (1901), 293n
United States vs. Heinszen, 206 U. S.
370 (1907), 293n.
United States vs. Lee Yen Tai, 185
U. S. 213 (1902), 321

United States ads. Lincoln, 197 U. S.
419 (1905), 293n.

United States ads. Logan, 144 U.S. 263
(1892), 388-389

United States ads. Nishimura Ekiu,
142 U.S. 651 (1892), 321

United States vs. Percheman, 7 Peters
51 (1833), 312-313

United States ads. Rassmussen, 197
U. S. 516 (1905), 344n.

United States vs. Rauscher, 119 U. S.
407 (1886), 316, 368

United States vs. Schooner Peggy, 1
Cranch 103 (1801), 308-309, 324, 325

Utah ads. Thompson, 170 U. S. 343
(1898), 303n.

Vance vs. Vandercook, 170 U. S. 438
(1898), 408

Vandercook ads. Vance, 170 U. S. 438
(1895), 408

Virginia vs. Tennessee, 148 U. S. 503
(1893), 302

Ware vs. Hylton, 3 Dallas 199 (1796),
329, 339-345, 355, 357; 373

Wharton vs. Wise, 153 U.S. 155 (1894),
302

Whitney vs. Robertson, 124 U. S. 190
(1888), 317

Wilson ads. Callan, 127 U. S. 540
(1888), 303n.

Wilson vs. Shaw, 204 U. S. 24 (1907),
297n.

Wise ads. Wharton, 153 U. S. 155
(1894), 302

Worcester vs. The State of Georgia,
6 Peters, 515 (1832), 353-355, 376

Wyman; In re, 191 Mass. 276 (1906),
306n.

Acquisition of territory (see Territory).
Adams, John, efforts as Minister to
England, 331
Adams, Samuel, cited, 332
Alaska, acquisition of, 289, 293
Amendments,
First Eight considered, 305-306
Adoption of first ten, 282
; Their interpretation, 282
: a Ninth and Tenth, 282

q
ee
id

: Tenth considered, 362-363
____ Annexation,
of Alaska, 289

4 of California, 293
g of Florida, 203, 300ff.
of Hawaii, 299-300
of Louisiana, 271, 274, 293
of New Mexico, 293
of Philippine Islands, 293
of Porto Rico, 293
of Texas, 274, 298-299
Appropriations,
Congressional duty concerning,
required by Treaties, 285-287,
_ _ 289, 292
Considered, 292
Articles of Confederation, 276, 301, 329,
330, 374 :
Its treaties disregarded by States,
329, 333

Brown, Mr. Justice, Opinion in Insular
_ cases discussed, 295-297
Bloodworth, Timothy, cited, 338
Blaine, James G., Letter to Chinese
Minister, 377-378
Letter to Italian Minister, 378-379

_ Calhoun, John C., 375-376, 397
California, acquisition of, 293
_ Japanese School Controversy, 271,
380-381

419

INDEX.

Canada, Reciprocity Tariff Act, 291-
292
Chinese Exclusion Acts, 318-319
Diplomatic exchanges, 377-378
Civil War, the final establishment of
supremacy of Federal will by, 376,
398 -

Collom, Senator, his speech on the
treaty-making power in 1902, 290
Commerce, Treaties regulating, 322—-

323
Regulation of, by treaty or act
of Congress affecting State
police power, 359-372
Confederation (see Articles of).
Congress, consent to acquisition of
territory considered, 297-298
Its functions relative to treaties,
285-293
Constitution:
Art I., Section X., Clause 1, 275
its evolution in Fed. Convention,
276 F
Art. I., Section X., Clause 2, 275
its evolution in Fed. Convention,
276

Art. II., Section II., Clause 2, 275

its evolution in Fed. Convention,
275-279

Art. IIL, Section II., Clause 1, 275

its evolution in Fed. Convention,
279-280, 334-335

Art. VI., Clause 2, 275

its evolution in Fed. Convention,
280-281, 306

General Plan, 281-282

Application to territories, 294-
829

Two clauses of Art. I., Section 10,
compared, 301-302

Decisions under Art. I., Section X,
Clause 2, 302

419

420

Constitution.
First 8 Amendments, 303-306
Cases thereon considered,
303-306
Tenth Amendment
362-363
The judicial power the final arbiter
of, 396
Convention, Federal, Adoption of
Treaty Clauses, 276-281
Corbin, Francis, cited, 339
Cuba, Treaty of 1902 with, 291

considered,

Dicta, their nature discussed, 311, 348
Dingley Act, 290
Diplomatic Incidents,
Denver riots in 1880, 377-378
Martin Koszta case, 381-382
Mafia riots in 1891, 378-379
Montijo case, 382-383
Tallulah murders in 1899, 379-380
Duties,
Imposition of, by treaties, 287-
293, 317-318, 322-323
Tariff Act of 1832, 375
Dingley Act of 1897, 290

Ellsworth, Oliver, cited, 332
Enforcement of Treaty-provisions, 376-
395
Cases considered, 383-392
English Law: Characteristics of, 272
Evarts, William M., cited, 377
Farrand, Max, cited, 334
Federalist, cited, 331
Fitzsimmons, 278
Florida, Acquisition of, 293, 360ff.
France,
Cession of Louisiana, 271, 274, 293
Treaty of 1853 with, 320, 356-357
Treaty of 1778 with, 350
Franklin, Benjamin, 280
Grant, Ulysses S., attitude, toward
Treaty-making Power, 292
Great Britain,
Treaty of 1783 with, 329-330
Treaty of 1794 with, 285-287, 348-
349, 351

BURR—THE TREATY-MAKING POWER

[April 20,

Great Britain.

Treaty of 1815 with, sar
Hamilton, Alexander (see Federalist)
Harrison, Benjamin, 289 ;
Hawaii,

Treaty of 1875 with, 289, 317

Extension in 1887, 289-290

Annexation of, 299-300
Henry, Patrick, cited, 329, 338
Historical Method: study of law, 272>.

273 :
Holst von, E., cited, 299 ;
House of Representatives, attitude

toward Treaties, 285-292
Discussed, 292-293
Indians (see Treaties)
Italian Riots,
Mafia riots in New Orleans, 378-
379

Murders at Tallulah, 379-380
Italy, Treaty with, considered, 393-395
Jackson, Andrew, .

Attitude toward Treaty-making

Power, 292

Fails to support Supreme Court

against Georgia, 354
Japanese School Controversy in Cali-

fornia, 380-381
Johnston, Samuel, cited, 338
Judicial Constitutional Provisions,

Their evolution, 275-281, 327-329

Contemporary interpretation of

328-339
Koszta, Martin, case, 381-382
King, Rufus, cited, 279

Lee, Richard Henry, cited, 338
Louisiana Purchase, 271, 274, 293

McMaster, John Bach, cited, 330
Madison, James, cited, 278, 279, 331,
333
Mafia riots, 271, 378-379, 393 ff.
Marshall, John, 286, 329, 397
Opinion on acquisition of —
tory, 293
Opinion that treaty operate
legislative act, 310-311

2912.)

Marshall, John.

Argument on Police Power, 365-

366

Argument in Ware vs. Hylton,
: 340-341
~~‘ Martin, Luther, cited, 281, 337
-_ Mason, George, Col., cited, 277, 337
“Mercer, 271
‘Mexico,

Cession of California, 293

Cession of New Mexico, 293
Mik ell, William E., cited, 307, 335, 344

348, 349, 350, 352n.

Montijo case, 382-383
‘Morris, Gouverneur, cited, 278

New Jersey Plan, 277, 280, 331

New Mexico, acquisition of, 293
Nicholas, George, cited, 339
Nullification, by South Carolina, 375

Pendleton, Edmund, cited, 332
Philippine Islands, acquisition of, 293
Pinckney, Charles Cotesworth,
Speech before House on the Treaty -
_ making Power, 326-327
Police Power,
4 Designated internal police in
=e. Federal Convention, 280
a of States, 356-376
Cases considered, 356-374, 383-
392
Taney on, 360, 370-371
Definitions, 364, 374
Marshall on, 365, 366
Discussed, 372-376
Conclusion as to supremacy of
treaty-rights over State, 392-
393
Political Aspect of Questions arising
under Treaties, 274, 285-307, 324-
325
Porto Rico, acquisition of, 293
Power, Treaty-making (see Treaty-
_ making Power)
_ Prussia, Proposed Treaty of 1844 with,
288

Randolph, Edmund, 275, 276, 279
Cited, 332, 340

OF THE UNITED STATES.

421

Reciprocity Treaties, 288, 290-292

Roosevelt, Theodore, message to Con-
gress respecting enforcement of rights
under treaties, 380-381

Russia, Cession of Alaska, 289, 293

Sherman, Roger, cited, 278
Spain,
Cession of Florida, 293
Cession of Philippines, 293
Cession of Porto Rico, 293
Treaty of 1819 with, 310 ff
State Court Decisions, 274, 306
State Rights, 375-376, 396-398
States,
Passage of acts violative of treat-
ies under Confederation, 330-

354, 333
Georgia defies Supreme Court,

353-354, 376
Police Power of, 356-376
Police Power of and prohibition
acts, 359-360, 366, 369-370
Statutes with reference to the enforce-
ment of treaty rights, 392-395
Story, Joseph, cited, 396
Study of Law; Historical Method, 272-
273
Supremacy of Treaty provisions over
State law, 327-356, 356-376,
392, 398
Controverted, but established at
creation of Constitution, 328-
329
Cases analyzed, 339-356
How enforced, 376-395, 398

Tallulah Murders, 379-380
Taney, Mr. Chief-Justice,
Failure to appreciate force of
Ware vs. Hylton, 357
On State Police Power, 360, 370-
371
Action, when Atty-General, 376
Appointment as Chief-Justice, 376
Tariff (see Duties)
Territory,
Acquisition of, 271, 293-300

422

Territory,
Acquisition of, by Congressional
resolution, 298-300
Consent of Congress to acquisition
of, 297-298 |
Applicability of Constitution to
newly-acquired, 294-298
Cession of, 300-301
Texas, annexation of, 274, 298-299
Treaties,
Political aspects of questions aris-
ing under, 274
with Cuba in 1902, 291
with France in 1778, 350
with France in 1853, 320, 356-357
with Great Britain in 1783, 329-
330
with Great Britain in 1794, 285-
287, 348-349, 351
with Great Britain in 1815, 287
with Hawaii in 1875, 289, 317
with Indians paramount over
State laws, 314-315, 353-355
with Italy considered, 393-395
proposed treaty of 1884 with
Prussia, 288
with Confederation, disregarded
by States, 329, 333
as legislative act, 306-327
Cases considered, 306-322
Constitutional clauses relative to,
275 :
Evolution of treaty clauses in
Federal Convention, 275-281
Commerce, regulating, 322-323
May repeal prior Act of Congress,
312-313, 320-321
May be superseded by Act of
Congress, 313, 315, 318-319
Enforcement of, 376-395
Necessity for inclusion of provi-
sions for enforcement, 393-395

BURR—THE TREATY-MAKING POWER

[April 20,

Treaties,
Status of, when in conflict with
State police power, 397.
Treaty-making Power,
Nature of problems concerning,
282-285
Relative to subjects committed to-
Congress, 283, 306-327
Cases analyzed, 309-322 ;
Relative to subjects committed to-
State legislation, 283, 327-356
Cases analyzed, 339-356
Prohibition of, to States, 283, 284,.
301-302
Colorable exercise of, 284-285
With reference to Congressional
appropriations, 285-287, 289
Relative to imposition of duties,
287-293, 317-318, 322-323
Attitude of A. Jackson, 292
Attitude of U. S. Grant, 292
Speech of C. C. Pinckney concern-
ing, 326-327 :
Speech of Senator Collom, 290
Tyler, John, Antagonism of Senate in
1844, 288
Virginia Plan, 275, 276, 279, 280, 281
Washington, George,
His Message to Congress respect-
ing appropriations to carry out
Treaties, 286-287
Criticism of State treatment of
treaties under Confederation,
331
Letter accompanying draft of
Constitution, 335 .
White, Mr. Justice, opinion in Insular
Cases discussed, 294-298 ,
Williamson, Hugh, cited, 280
Wilson, James, cited, 278, 279, 3 336-397 :

yr

PROCEEDINGS

AMERICAN PHILOSOPHICAL SOCIETY
HELD AT PHILADELPHIA
FOR PROMOTING USEFUL KNOWLEDGE

Vor. LI OcroBeR—DEcEMBER, 1912 No. 207

THE FORMATION OF COAL BEDS.
anh
By JOHN J. STEVENSON.
(Read November 1, 1912.)
Tue Rocks OF THE CoAL MEASURES.

Coal beds, Devonian, Carboniferous, Mesozoic and Tertiary,
alike, are associated with shales, sandstones and, in many cases, with
calcareous beds, the last often containing a marine or a fresh-water
fauna. Interior or limnic basins frequently bear close resemblance
to paralic or coastal basins, so that distinction between the types
becomes arbitrary in some great areas. In the Indiana-IIlinois field,
wide invasions of the sea appeared again and again throughout
practically the whole period of accumulation. On the other hand,
the Appalachian basin, almost land-locked during most of its history,
experienced few invasions and those, of comparatively small extent,
__ were confined to the earlier periods; in the later stages, the whole
_ region was practically limnic.

2 Study of reports by observers in the several countries makes
certain that conditions needed for formation of coal beds were to

* Part I. appeared in these Proceedings, Vol. L., pp. 1-116; Part II. in

13 same volume, pp. 519-643.

PROC. AMER. PHIL. SOC., LI. 207 A, PRINTED DEC. 13, I9I2,
423

‘ tas
at

424 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1

all intents and purposes the same in all regions and in all periods, __
from the Devonian coals of Bear Island in the Arctic to the Tertiary _
coals of Wyoming or Trinidad; but the varying descriptions and
explanations presented by students make equally certain that one
cannot ascertain what the essential conditions are, if his investiga- _
tion be confined to areas embracing a score or even several hundreds __
of square miles. The investigation must cover a great area, in
which merely local features do not obscure those which are general
and which actually bear upon the problem in hand. Such an area is
the Appalachian Basin of the eastern United States, where one
finds the Pennsylvanian or Coal Measures divided into

Dunkard Greene
Wheeling Washington
Monongahela
Athens Conemaugh
Allegheny
Pottsville Beaver
New River
Pocahontas

The order is descending.* a

The Appalachian coal field, now embracing approximately
70,000 square miles of almost continuous deposits, occupies only a
part of the original area. The deep synclinal basins of anthracite
in eastern Pennsylvania are separated by 50 to 100 miles from the .
great bituminous region at the west, while southwardly one finds
insignificant fragments along the eastern side until he comes to
Georgia and Alabama. The greatest extent of the area of deposit
was probably at the close of the Pottsville, when it reached from
southern New York in west southwest direction to beyond central
Alabama, more than 800 miles; at the north, it spread from the —
old Appalachian land, at the east, westward to beyond Newark in

7 J. J. Stevenson, “ Carboniferous of the Appalachian Basin,” Bull. Geol. a
Soc. Amer., Vol. 18, 1907, p. 178. The Pottsville is subdivided in this paper —
into Beaver and Rockcastle. I. C. White, in West Virginia Geol. Survey,
Vol. Ia, 1908, p. 13, has suggested that Rockcastle be replaced by New River

and Pocahontas; this should be accepted, as Stevenson did not assign
proper significance to Pocahontas, regarding it as merely a subordinate stage.

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 425

Ohio, while at the south it reached the western boundary of Ala-
bama. The area of deposit at that time embraced not less than
200,000 square miles. The present outcrop approaches the western
border at a few localities in Ohio and Kentucky as well as in
Alabama, but for the most part it is two score or more miles east
from the original limit. The eastern border is approached in the
southern anthracite field of Pennsylvania and apparently it was not
far eastward from the Pocahontas outcrop in Virginia; in Alabama,
the eastern outcrop is not more than 25 miles from the original
border on that side. But, in most of the space north from Alabama,
the present continuous outcrop is from 30 to 100 miles west from
that border as it probably existed at the close of the Pottsville.
The Appalachian field included a small part of New York, more
than two thirds of Pennsylvania, the western third of Maryland.
nearly the whole of West Virginia, the eastern third of Ohio and
Kentucky, with southwestern Virginia, eastern Tennessee, the
northern half of Alabama as well as northwestern Georgia. Here
then is an area of sufficient extent to provide ample illustration of
purely local features and their relations to the effects of widely act-
ing agents.

2

:
3

THe APPALACHIAN BASIN.

The Appalachian basin, from its origin to the close of the
Paleozoic, was the scene of frequent changes in the relations of
land and water. Schuchert and Ulrich? have shown that such
changes were merely commonplaces in the earlier periods. Those
students are not in agreement respecting several matters, which have
much interest from a philosophical standpoint, but they are in full

. 2 agreement respecting all matters which concern the questions at

issue here. As Schuchert has shown, the Appalachian basin
ce originally was continuous with the broad Mississippi region and
= much of it was covered with sea. Toward the close of the Ordo-
_ vician the Taconic revolution began, which, at ‘the east, widened
SY od Schuchert, “ Paleography of North America,” Bull. Geol. Soc.

i _ Amer., Vol. 20, 1910, pp. 427-606; E. O. Ulrich, “ Revision of the Paleozoic
re © Systems,” ibid., Vol. 22, 1911, pp. 281-680.

426 | STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

Appalachia by additions along the western side from New England
through Virginia, thus giving a great area on which erosion could
work and did work, as evidenced by clastic sediments in the northern
part of the basin. The Cincinnati uplift of authors, occurring at
the same time, led to the elevation of Cincinnatia (of Schuchert),
the western boundary of the basin. Contemporaneously, as indi-
cated by Schuchert, a less conspicuous land area, Alleghania, ap-
peared within the basin, rudely parallel to Appalachia and extend-
ing southwardly across western Pennsylvania and eastern Ohio. It .
was. separated from Cincinnatia by the Ohio basin. During the
Silurian, there was occasional communication across. Cincinnatia |
with the Mississippi region beyond and the faunas indicate that the —
basin opened northwardly to the Atlantic ocean. The same type of
evidence shows that the basin was divided by a land area in southern —
Virginia, so that there was a northern sea extending into New York,
as well as a southern sea in Tennessee and Alabama.

Studies by many geologists make clear that the southern portion
of Appalachia was unstable. Southward from central Pennsyl-
vania, the early Devonian rocks are wanting along the eastern side,
while in southern Virginia and thence southward only the lower
beds of the Middle Devonian are found. In Alabama the Devonian,
more than 8,000 feet thick in central Pennsylvania, is represented by
only dark shale rarely exceeding 100 feet and, near its southern
limit, varying from 3 to 30 feet. 2

The area embraced in Schuchert’s Alleghania was of decid
instability. It received deposits during the Chemung, for that
formation with its characteristic conglomerates crossed the are
though with reduced thickness; but all the principal elements of
the section observed in central Pennsylvania are present.
intervals decrease toward this area and there is notable thinning
above the upper conglomerate. The Catskill beds, following fl
Chemung, thin out against Alleghania, showing that once more
was above water. That formation, as defined by Vanuxem,
first to assign a definite meaning to the term, is 3,900 feet thick
Fulton county of Pennsylvania; 3,000, in the eastern portion
Bedford; 1,980 in western Bedford; it is concealed in Som

&
n
i
ig

ee
=
z
%

c
U:

4

By
eo:

Re:

a

a
iit s
&
eC
ioe
Be
Pes
=
¥
) Ge

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 427

except on the western edge, where it is brought up by a great anti-
cline and is 10 to 15 feet thick, while, at 4 or 5 miles farther west
in Fayette county, it has disappeared and the Upper Pocono beds of
the Mississippian rest on the Chemung. The rate of decrease under
Somerset is very nearly the same as that in Fulton and Bedford.
This thinning is shown on the western side of the Catskill deposits
from New York to New River in Virginia, beyond which south-
wardly Chemung and Catskill both disappear.*

The Carboniferous was opened by subsidence in the basin. The
northern portion still received the greatest deposits along the eastern
side in the old valley or “trough of sedimentation,’ but the area
widened westwardly so that the later Pocono rocks of Pennsylvania
overlap the Catskill of the Devonian and rest without apparent non-
conformity on the Chemung rocks of Alleghania, as they do beyond
in the Ohio basin. There was distinct widening eastwardly in
Virginia and southward. Campbell® showed that phenomena in
Virginia, which had puzzled earlier observers, were due to overlap;
that the coal-bearing Mississippian deposits rest there on Ordovician
rocks, which in all probability had been upraised during the
Taconian revolution. Still farther south, the oldest rocks of the
Mississippian overlap the Catskill, the Chemung and, at length, even
the thin Chattanooga shales, the last Devonian representative toward
the south. But during succeeding stages of the Mississippian,
there was distinct contraction of the area of deposit on the western

_ side, for the Maxville lies within the Logan and the Shenango within

the Maxville ;* at times, there may have been dry land in the Alle-
ghania region. But at the south there was continued depression,

*J. J. Stevenson, “ Bedford and Fulton Counties,” Second Geol. Surv.
of Penn., 1882, pp. 73-75, 81; “The Upper Devonian Rocks of Southwest
Pennsylvania,” Amer. Jour. Sci., III., Vol. XV., 1878, pp. 423-430; “On the
Use of the Name Catskill,” ibid., Vol. XLVI., 1803, pp. 330-337.

*M. R. Campbell, “Paleozoic Overlaps in Montgomery and Pulaski
Counties, Virginia,” Bull. Geol. Soc. Amer., Vol. 5, 1894, p. 182.

*J. J. Stevenson, “Lower Carboniferous of the Appalachian Basin,”

Bull. Geol. Soc. Amer., Vol. 14, 1903, p. 85. This paper, on pp. 80-06, con-

tains a discussion of the varying geographical conditions during the Missis-
sippian. '

428 STEVENSON—THE FORMATION OF COAL BEDS, | (Nov. 1,

increasing southwardly, so that.in that direction the thickness of the
deposits increases until eastern Alabama is reached, where one
finds progressive overlap and each deposit has its attenuated out-
crop beyond that of its predecessor. Toward the close of the ~
Mississippian, Alleghania was becoming better defined; all of the
formations are present in most of it but they are very thin, nowhere
more than 400 feet thick at the north, less than one fifth as much
as in the anthracite region. Whether or not the Shenango shales
of western Pennsylvania are synchronous with the upper red beds
of the Mauch Chunk region cannot be determined, as a gap of 60
miles exists, from which the beds have been removed. Fossils are
rare and insufficient for correlation; they make evident, however,
that marine conditions prevailed in Alleghania, for the individuals
obtained in southwestern Pennsylvania are large, well developed and
thoroughly characteristic. The water was probably too shallow and
too variable in distribution to permit abundant life; the sun cracks,
ripple marks and other features indicate that these fine muds were
spread out on mud flats, with constantly shifting areas of tidal
waters. It is certain that withdrawal of the sea was continuous on
the western side, so that before the close of Mississippian, the Ohio
basin had become dry land and Alleghania had become once more
a distinct ridge, dividing the basin longitudinally from New York
to central Tennessee. But the withdrawal affected almost the
whole of the Appalachian basin; and this withdrawal may have
been caused by extensive deformation of the surface. While
Alleghania was raised at the west, there was rejuvenation of Ap-
palachia at the east. In the later Mississippian, the streams had —
reached base level along the borders, for only fine muds were carried _
into the basin; but the Pottsville opens with coarse deposits from
Pennsylvania to Alabama.

The distribution and character of the Pottsville deposits‘ seem —
to place beyond doubt the assertion that at the beginning of the
Pennsylvanian the whole basin, excepting at the southwest corner,

*D. White, “ Deposition of the Appalachian Pottsville,’ Bull. Geol. Soc.

Amer., Vol. 15, 1905, pp. 267-282; J. J. Stevenson, “ Carboniferous of the
Appalachian Basin,” ibid., Vol. 18, 1907, pp. 142-150.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 429

was a land area. Ancient Appalachia at the east towered above the
old trough of sedimentation, now become a broad valley with
irregular surface, while at the west rose the flat-topped Alleghania,
hundreds of feet high at the north and separated from Cincinnatia
by the broad, shallow valley of the Ohio basin, which deepened
southwardly. The eastern valley and the slope of Appalachia were
drained by a river following the westerly side of the valley and
finding its outlet at the south in Tennessee, where there still re-
mained a considerable body of water. A gradually lengthening
stream drained the western valley and found its outlet at the south
in the body of water, which was continuous around the southern
end of Alleghania.

- The story of the Appalachian basin for the Silurian, Devonian
and early Carboniferous is one of local deformations, of differential
elevations and depressions, of alternating water and dry land areas,
of sea invasions and expulsions or withdrawals. Similar condi-
tions continued throughout the Pennsylvanian. The subsidence

_ during the earlier stages was evidently differential, increasing toward

the south. As one follows the New River formation along the face
of the bituminous area, he finds not merely lower and lower beds
but, in Alabama, also a vastly increased thickness in each member
of the section, so that the mass, belonging apparently in greatest
part to the New River, is greater than the whole column in the
anthracite area, though that includes the Pottsville and at least two
thirds of the Athens. The condition throughout the Pottsville was
that of subsidence and the area of deposit constantly increased
toward the west. Along the sides of Alleghania and in the Ohio
basin, the New River overlaps the Pocahontas and the Beaver over-
laps the New River. The character of deposits in the anthracite
region and in Alabama affords ground for belief that, while sub-
sidence prevailed within the basin to the end of the Pottsville, there
was interrupted elevation in much of Appalachia, causing frequent
rejuvenation of the streams and preventing eastward expansion of
the area of deposition. During the Athens and later periods, that
area seems to have been contracting steadily, first at the south and
eventually on all sides until, at the close of the Dunkard, completion

430 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

of the Appalachian revolution brought deposition to an end in the
comparatively small area which remained.

Before presenting in detail the evidence on which these state-
ments are based, it is well to call attention to a matter respecting
which some misapprehension seems to exist. Time breaks in
deposition, due to existence of a land surface, do not leave in every

case a record in the way of non-conformity, which can be recog-

nized in even a considerable area. Schuchert* has emphasized in
this connection the conditions observed in the neighborhood of
Louisville, Kentucky, where the limestone deposit is conformable
throughout and appears to be continuous. The Devonian portion
can be distinguished from the Silurian only by the fossils, although
the portions are separated by a long land-interval. He offers many
other instances to which the writer may add one, already referred
to. In Westmoreland and Fayette counties of Pennsylvania, the
Upper Pocono or Logan is shown resting conformably upon the
Chemung, while at 60 miles east those formations are separated —
by not less than 4,000 feet of Catskill and Lower Pocono. Nor is
it in any sense necessary that there be extensive erosion during a
somewhat prolonged period of sub-aerial exposure, if the land be
level or low-lying, even though the period be long enough to admit
of the cutting of considerable valleys. Schuchert has shown that,
though exposed during the whole period since the Taconian revolu-
tion, the Cincinnatian region has lost certainly little more than 400
feet by erosion and that in all probability the greater part of this
loss has occurred since the Pleistocene elevation. Ulrich® says
that a limestone in the St. Louis area, 5 feet thick, was exposed
during the Silurian and the Devonian, yet it was not removed.
Illustrations of the slowness of erosion, where land is level, are
abundant in portions of Vermont, where one finds broad, terraced
valleys in the Quaternary sands and gravels. The region has always
been one with heavy rains, yet in some extended spaces the broad
upper terrace is only slightly scarred, though, since it was aban- —

*C. Schuchert, “ Paleography of North America,” pp. 441, 442.
.°E. O. Ulrich, “ Revision of the Paleozoic Systems,” p. 306.

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 431

doned, the streams have cut their valleys, hundreds of feet deep,
and have lined them with terraces.

The existence of a land area in Alleghania and the Ohio basin
is made clear by the distribution of Pottsville deposits. The
Pocahontas formation is present in the southern anthracite field and
in the western part of the Western Middle, but it is wanting in the
Eastern Middle and the Northern as well as in the bituminous
region of Pennsylvania and Ohio. Along the eastern outcrop, it is
present in the southern part of West Virginia and the adjacent part
of Virginia, but it thins away quickly toward the west and north-
west. It has not been recognized southwardly beyond Virginia.
The New River is very thick in the southern and in the western
part of the Western Middle, but is wanting in the northern anthra-
cite field. It is very thick in eastern Alabama within the outlying
areas, but it loses thickness quickly toward the west. This part of
Alabama is a region of non-conformability throughout. Butts’? has
shown that that unconformity is found at close of Cambrian,
Ordovician, Silurian and Devonian. There is notable non-con-
formity of erosion between Mississippian and Pennsylvanian. The
sandstone and shale mass, closing the former in eastern Alabama,
was removed from a great space prior to deposit of the Pottsville.
In the continuous bituminous region, one finds the upper beds of
the New River at about 70 miles south from the Pennsylvania line:
the lower beds appear in succession until in the southern part of
the state one finds, in all probability, the whole formation. The
formation is wholly wanting in the northern part of the state and
in by far the greater part of Pennsylvania. Indeed, there seems
to be good reason for doubting the accuracy of identifications along
the eastern outcrop in the latter state. In southern West Virginia
it is possible to trace the formation across the state by means of
exposures and the many records of oil-borings preserved by I. C.
White. The lower members disappear in succession westwardly
against the face of Alleghania and only the uppermost members

*C. Butts, “Iron Ores, Fuels, and Fluxes of the Birmingham District,
Alabama,” U. S. Geol. Surv. Bull., 400, 1910, pp. 14-16.

432 STEVENSON—THE FORMATION OF COAL BEDS. (UNev. 1,

reach Kentucky. The formation can be followed easily along the
eastern outcrop beyond central Tennessee, where the lower portion
first crosses Alleghania, and becomes continuous with the deposit
in the Ohio basin. There one finds the Bonair sandstone, midway
in New River, passing across Alleghania, where it rests on Missis-
sippian beds. On the western side in the Ohio basin, the higher
New River beds disappear northwardly, each overlapped by its
successor, so that beyond the Ohio River one finds only the top-
most member occupying a long narrow space, extending almost to
the present Lake Erie. At the close of the New River, most of the
bituminous region within Pennsylvania and northern West Vir-
ginia was above the area of deposit. During the Beaver that area
seems to have increased constantly so that, at the close of the
Pottsville, Alleghania had disappeared and the Homewood sandstone
or its equivalent covered the whole basin. The last portion of
Alleghania to become buried was in Jefferson, Clearfield, Indiana,
Westmoreland and Fayette counties of Pennsylvania. Differential
subsidence continued throughout the Pottsville; even in the Beaver —
the condition is notable. That formation is 250 to 300 feet thick —
in western Pennsylvania, but on the Kanawha River in central —
West Virginia it is fully 1,000 feet, while in southwest Virginia
the thickness seems to be even greater.

The Allegheny shows curious irregularities of thickness within
the bituminous area, which are due clearly to local disturbances;
but, leaving that feature out of view, one finds in a general way
very little variation, except along the western border, where the
section is shortened. The thickness may be taken as approximately
250 feet. In the anthracite area, the old trough of sedimentation
continued and the great influx of materials from Appalachia gave
a thickness several times as great. There, too, one finds anomalous
deposition, with abrupt changes in structure of coal beds and re-
markable variations in the intervals between them, evidence that
there were many and serious local disturbances.

In the Conemaugh, there is less evidence of local disturbance.
The variations are, as it were, regular. Measurements across the
bituminous region show rapid thickening eastward to the Ohio

1912] STEVENSON—THE FORMATION OF COAL BEDS. 433

River but comparative uniformity thence to the eastern outcrop. In
Muskingum and Guernsey counties of Ohio, the thickness increases
from 315 to 340 feet but, 40 miles farther, at the Ohio it is 500 feet.
In Pennsylvania and western Maryland the average is very nearly
600 feet. How thick the formation was in the northern anthracite
field cannot be determined, as the top of the section has been
removed, but the beds there are not less than 1,000 feet thick.
‘The conditions were the same throughout the whole period of
deposit, for variations in the upper half are similar to those in the
lower half. Apparently there was slower subsidence along the
western border than elsewhere, but no proof of overlapping or of
tegression can be found, as the outcrop is usually at a considerable
‘distance from the border of deposit. There was a singular uni-
formity of conditions from north to south along the middle line
of the bituminous area, a distance of more than 200 miles. At the
‘most northerly outcrop in Pennsylvania, the thickness is approxi-
mately 600 feet and thence southward along the whole line it varies
from 575 to 600 feet. Beyond Doddridge county of West Virginia,
definite measurements cannot be made as coal beds and limestones
alike have disappeared; but at Huntingdon, 100 miles beyond, and
just west from the middle line the thickness is said to be 660 feet.
At the extreme southeastern outcrop in West Virginia, the interval
has been reported as 800 feet but some doubt remains as to the
upper limit. Conditions during the Athens resembled those during
the Pottsville, in that the trough of sedimentation with greater sub-
sidence still existed at the east. But there was no longer differ-
ential subsidence toward the south and there is much reason for
believing that there was notable contraction of the area of deposi-
tion in that direction, so that the Conemaugh may have extended,
at most, only a short distance into Tennessee.**

But when one reaches the Wheeling he finds a notable change.
Going eastward from the western outcrop in Ohio, the thickness
4 = “The measurements of the Conemaugh have been taken from J. J.
ti Stevenson, Ohio Geol. Survey, Vol. III., 1879; Second Geol. Serv. of Penn-

sylvania, Reports K, 1876, KK, 1877, T2, 1882; I. C. White, U. S. Survey,
Bull. 65, 1891; West Virginia Geol. Surv., Vol. I., 1890.

434 STEVENSON—THE FORMATION OF COAL BEDS, UNov. 1,

of the Monongahela is 206, 250 and at the Ohio River 261 feet.
Beyond that river, 275, 300, 340 and 380 in Pennsylvania to just
beyond the Monogahela River; 316 at a few miles farther and 212
in the Frostburg basin of Maryland. Adding the coal beds and
their partings one has 213 at the western outcrop, 270 at the Ohio.
River, 285 at western line of Pennsylvania, 400 near the Mononga--
hela, 370 beyond the Monongahela and 252 in the Frostburg basin of
Maryland.’* It is evident that the topographical conditions have
been changed and the area of deposit has become a trough with
its deepest line midway in the bituminous region. The ancient
trough of sedimentation at the east has disappeared. For im
another direction the contrast with the Athens conditions is equally
striking. No shortening of the section northward was observed im
the Athens, but in the Monongahela, the shortening in that direction
is distinct. Many measurements are available in southwest Penn- —
sylvania and West Virginia.1* These show that the thickness in- :
creases from 156 feet at the most northerly exposure in Washington
county of Pennsylvania to about 400 feet at the West Virginia line, —
the increase being gradual. The extreme thickness is maintained im —
West Virginia for more than 50 miles. Thence the section can be —
followed only with difficulty as all horizons become indefinite, but
evidently it becomes shorter, for, where the horizons again become
definite, along the southern border, the thickness is 250 to 281 feet.
The conditions were similar during deposition of the Washington.
Throughout the Wheeling, the area of deposition was basin shaped,
with the rate of subsidence increasing toward central West Vir-
ginia. It was contracting on.all sides and there is little or no
reason to suppose that any important deposits were made in the-
anthracite region or south from West Virginia.
* Ohio Geol. Surv., Vol. III., p. 262; Second Geol. Surv. Penn., Report
K, pp. 211, 216, 240, 340; “ Carboniferous of the Appalachian Basin,” Bull.
Geol. Soc. Amer., Vol. 18, 1907, p. 47; G. P. Grimsley, “Ohio, Brooke and!
Hancock Count West Virginia Geol. Surv., 1907, p. 39. oe
* J. J. Stevenson, Second Geol. Surv. Penn., Rep. KKK, 1878, p. 292
a considerable number of measurements cited here from Rep. K were made

by I. C. White; I. C. White, U. S. Survey, Bull. 65, pp. 54, 55; Well records.
in W. Va., Vol. I. hee

2912] STEVENSON—THE FORMATION OF COAL BEDS. 435

The area of Dunkard deposits seems to have been much less
than that of the Wheeling, but erosion has stripped the borders
and one can make few positive statements respecting the condi-
tions. The full section, as it now exists, is found only at rare
places in the long narrow strip within western Pennsylvania and
West Virginia. There appears to be the same tendency to north-
ward shortening of the section; there is evidence in Pennsylvania
that there were local foldings, that, as in the earlier periods, there
were not merely general movements leading to decrease of the area
of deposition but also others due to strains varying in direction
at different times.

Evidence of elevation and subsidence is found in buried valleys,
marking the courses of subaerial streams. These are so numerous
that one need select only a few instances.

That Alleghania and the Ohio basin were dry land at the close
of the Mississippian, is clear from the evidence of erosion as well
as of corrosion. Hyde** has summarized the observations of his
predecessors and has added the results of his own studies. The
base of the Coal Measures along the outcrop belt in southern Ohio
rests directly on the Logan formations, which for the most part are
Lower Mississippian. These were subjected to great erosion, which
left a relief of 200 to 300 feet. Hyde followed this surface of
unconformity across Ohio from the central line of the state south-
ward to the Ohio River, finding frequent variations of 100 feet in
the elevation. The Coal Measures sandstones are often let down
into the Logan, but ordinarily the non-conformity is gentle. Here
and there one sees old valleys which can be traced for considerable
distances. The erosion was mostly post-Maxville.

Soon after the elevation of Alleghania and the Ohio basin, a
stream began to cut for itself a valley, which, before the end of
the New River stage, extended from the Canadian highlands south-
‘wardly across Ohio, Kentucky and Tennessee to an outlet at the

* J. E. Hyde, “Notes on the Absence of a Soil Bed at the Base of the

Pennsylvanian of Southern Ohio,” Amer. Journ. Sci., Vol. XXXI., 19011, pp.
557-560.

436 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

southwest. This stream must have been determined very quickly
after the region became dry land, for, before the end of the New
River, it had made a terraced valley, at least 30 miles wide in some
parts of its course and showing irregularities of surface which
indicate existence of many minor tributaries. The main stream
had its source in the Canadian highlands; an important tributary
drained part of the Mississippian ridge of Michigan and its course
lay within the area of Lake Erie; a second important tributary
came from the east, draining a part of southwestern New York and
northern Pennsylvania. In Ohio, this valley area is for the most
part west from the present outcrop of Pennsylvania beds; but its
eastern side is traced readily from 10 miles south of Lake Erie to
the southern border of Summit and Portage counties, about 80
miles, for it is filled with coarse sandstone and conglomerate, which
thin out abruptly at the east, permitting the overlying beds to rest
on Mississippian rocks. The western edge is approached in Wayne
and Medina counties, where the coarse beds become very thin.
Fragmentary exposures of the eastern side are found in counties
farther south until, in Vinton, Jackson and Pike, the Pennsylvanian
outcrop swings westward and the exposures extend to apparently
midway in the valley. Thence into Kentucky the outcrop again
trends southwardly and only the extreme eastern border is seen.
In northern Kentucky, another valley, now filled. with New River
beds, begins in Carter county at 20 miles south from the Ohio
River and deepened rapidly southward in Mississippian rocks. Its
direction, west of south, is such that, within a few miles from the —
last recorded exposure, it should unite with the main valley. In —
southern Kentucky on the western side of the Main Valley area,
M. R. Campbell discovered a valley in Mississippian rocks, deepen-
ing toward the east and now filled with New River beds. Farther
south, in Tennessee, the relations soon become indefinite, but ob- —
servations on the eastern side by Hayes make sufficiently clear that
the valley was distinct at half way to the Alabama line until midway
in the New River.

Some features of this valley should be emphasized. Its exist- ;
ence is distinct for not less than 400 miles and, beyond central Ohio, —

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 437

it deepened rapidly toward the south. It was dug in soft rocks of
the Mississippian, shale, limestone or comparatively fine grained
sandstone ; but it headed eventually in the Archzan rocks of Canada,
while an important branch rose in the Mississippian area of Michi-
gan, covered with a cherty limestone. A gradual though probably
not continuous subsidence is shown by the distribution of New
River beds, which terminate one after another in progressive over-
lap northward until beyond the Ohio River one finds only the
newest members of the formation. In like manner, overlap is
distinct on the eastern or Alleghania side of the valley; at the north,
the Beaver rests on Mississippian beyond termination of the New
River ; Hayes and others saw that, in White, Bledsoe and Cumber-
land counties of Tennessee, the lower members of the New River
thin away in succession on the west slope of Alleghania until at last
the Bonair sandstone, midway in the formation, crosses the ridge
where it rests on Mississippian. A similar condition exists on the
eastern side of the ridge, facing the old trough of sedimentation.
The valley was filled eventually by New River deposits. In
Ohio, only the latest members appear; coarse sandstone, of which
the lower portion is dense, hard and white, containing quartz pebbles
from the Canadian Archean and pebbles of fossiliferous chert from
Michigan. At many places in northern Ohio, this is a mass of
pebbles with hardly enough sand to bind them, while mingled with
them at times are irregular pieces of shale—the whole giving unmis-
takable proof of river action. The chert pebbles continue almost to
the Ohio River at the south, more than 400 miles from the source,
the measurement being made in direct line. The upper portion con-
tains no chert but abundance of quartz pebbles, and in Jackson and
Pike of Ohio, more than 300 miles from the only possible source,
those pebbles, occurring throughout the deposit, are often as large
as ahen’s egg. In most of Kentucky, the equivalents of these later
deposits are merely coarse sandstones with layers of small pebbles —
it must be remembered that there one sees only the border, not the

L. deeper part of the valley. In the southern part of the state the

beds consist largely of “hailstone grit,’ for there the exposures
reach beyond those at the north. Soon after passing into Tennessee,

438 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

the rocks lose coarseness and within 40 miles, according to M. R.
Campbell, are no longer hard enough to affect the topography ; but
in that interval a new sandstone, the Bonair, belonging lower in the
column, is reached: fine-grained at first, it soon becomes coarse and
within a few miles it is a pebbly rock, massive, 60 to 90 feet thick
and containing very little clay. The rate of fall in the original
stream cannot be determined as there was differential subsidence,
but some conception may be gained from the thickness of deposits.
The extreme along deepest part of the valley in northern Ohio is
175 feet; in southern Ohio, 310 feet remain and the original thick-
ness was not far from 400 feet; in southern Kentucky, it was more
than 1,000 and in central Tennessee not less than 1,500. The de-
posits are all of river origin; there is no trace of marine conditions,
except at the extreme south, nor is there any evidence of shore
action; the pebbles are round, not flat: proof of selective action by
running water abounds along the whole course. One has here
merely a subaerial valley, filled with river deposits. The main
western drainage line followed the same course until late in the
Athens.*®

Roy*® has published some notes respecting the Sharon coal bed,
the first member of the Beaver formation, which show that the clos- 4
ing deposits of the New River had become dry land, exposed to
subaerial conditions. In the Mahoning valley that coal bed occupies
serpentine, usually narrow troughs, which sometimes unite, but ordi-
narily are separated by long intervals of barren ground. The —
troughs were eroded in the old plain and the separating ridges are —
merely planed down knolls. In some cases, the troughs were eroded
in Waverly rocks, which there are largely Devonian. The lowest —
coal bed in Jackson county, in the southern part of the state, is

** This summary is based on observations by J. S. Newberry, M. C. Read,
A. W. Wheat, E. B. Andrews, A. A. Wright for Ohio; A. R. Crandall, ©
J. Lesley, G. M. Sullivan, W. M. Linney, M. R. Campbell for Kentucky; —
J. M. Safford, W. Hayes, M. R. Campbell for Tennessee. These are given
in “Carboniferous of the Appalachian Basin,” Bull. Geol. Soc Amer., Vol.

15, 1904, pp. 37-210.
** A. Roy, “ Third Annual Report of the State Mine Inspector,” Colum-

bus, 1876, pp. 129-131.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 439

midway in the great sandstone mass filling the valley just described.
It occupies a trough in that sandstone, showing that, during migra-
tions of the stream in its valley, portions of the flood plain remained
_ _ exposed long enough to permit accumulation of an important coal
; bed.
; A valley of notable extent existed in western Pennsylvania
during the early Allegheny. There is good reason for believing
' that it reached as far east as the border of Cambria county, but
connected observations begin only in Jefferson county, somewhat
more than 40 miles farther northwest; thence the course can be
followed across southern Clarion, northern Armstrong, northern
and western Butler into northern Beaver,—almost to the Ohio
River, a distance of about 90 miles in direct line. The interval
from the Vanport limestone down to the Homewood sandstone—the
last member of the Beaver—is filled with coarse to pebbly sand-
stone in a strip, 8 to 10 miles wide, on each side of which the normal
- section is exposed. To trace this valley southward along the Ohio
| 2 valley is not possible, as the horizon passes quickly under cover,
_ but there are good reasons for supposing a southward extension.
Borings at Wheeling, West Virginia, on the Ohio, report the interval
filled with sandstone; at Moundsville, 10 miles south, a line of bor-
ings begins, which is continuous across Wetzel county of West Vir-
ginia into Greene county of Pennsylvania, in all of which sandstone
fills the interval, thus indicating the existence of a long tributary
from the east. It may be that the stream’s course lay well west
from the Ohio, nearer that of the pre-Beaver valley and that even
the top member of the Beaver was invaded. Hodge reports that
in Coshocton county of Ohio, a sandstone begins at 25 feet below
the Vanport limestone and continues downward 280 feet to a thin
coal bed resting on the New River conglomerate, thus passing
through the whole of the Beaver.?7

The portion of the column, beginning with the Vanport lime-
ss ™ The observations by W. G. Platt, I. C. White, H. M. Chance, J. F.
__ Carll and J. J. Stevenson, on which this summary is based, are recorded in
_ “Carboniferous of the Appalachian Basin,” Bull. Geol. Soc. Amer., Vol.
17, 1906, pp. 65-228; J. T. Hodge, Ohio Geol. Survey, Vol. III., 1878, p. 572.
PROC, AMER. PHIL. SOC., 1.1, 207 B, PRINTED DEC. 13, 1912.

440 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

stone and extending upward for 75 feet or more, tells of stream
erosions in a great area. That limestone is replaced with sandstone
at many places in Pennsylvania is shown by I. C. White.
Grimsley’® has described a ‘“ washout,” which he observed at New
Cumberland, on the Ohio River in West Virginia. It involves the
Middle Kittanning coal bed and the associated rocks. The course
of the “roll” is S. 30° E. The replacing sandstone is exposed
along a stream near the town, where it is 1,200 feet wide. Ap-
proaching from the west, the coal is cut off, its thick underlying
clay becomes sandy and the sandstone mass becomes continuous
with that below the clay. This valley was filled during deposition
of the sandstone which elsewhere forms the roof of the coal bed.
Within the “roll,” nodular and lenticular masses of coal occur
along with numerous long strings, one and a half to 3 inches thick.
This cut out was traced for about 2 miles.

The same horizon is marked by stream cutting in a considerable
part of the Hocking Valley coal field of Ohio. The phenomena
were described first by E. B. Andrews and at a later date by
Orton.’® The latter is not inclined to believe that the work was
done by streams, thinking rather that it was done by the ocean.

Illustrations of similar conditions are found abundantly in coal
- fields elsewhere. Ashley?® has described the ‘“ Coxville Carbon-
iferous river” in Parke county, Indiana, a Coal Measures valley
filled with sandstone. It is 600 feet broad and the sandstone is
exposed to a depth of 40 feet. On each side the sandstone spreads q .
above the exposure and is seen resting on a coal bed. At another
locality, the sandstone is 180 to 190 feet thick. At Silver Island q :
in Fountain county and elsewhere the same features are shown at _
this horizon. It had been suggested that these, with some others,
are parts of a drainage system, but Ashley hesitated to accept this,
believing that if it were true there should be evidence of greater
unconformity than has been observed. He remarks, however, that —

* G. P. Grimsley, “ Clays, Limestones and Cements,’ West Virginia Geol. —
Survey, Vol. III., 1905, pp. 215, 216.

*E. Orton, Ohio Geol. Survey, Vol. V., 1884, pp. 936, 937.

_ ™G. H. Ashley, “The Coal Deposits of Indiana,’ Twenty-third Ann.
Rep. Indiana Geol. Survey, 1899, pp. 272, 377, 385, 386, 552, 821, 956, 1261.

1912} STEVENSON—THE FORMATION OF COAL BEDS. 441

an extensive uplift in the northern part of the field would be suffi-
cient. Channels are numerous at several horizons in Indiana and
some of them seem to belong to a drainage system flowing south-
___west, as the smaller channels enter the larger in that direction and
[ _ the larger ones increase in size. Non-conformity has been observed
at many horizons in Indiana.
“Washouts” receive much attention in the British coal reports.
Some are of slight extent vertically, of a type which will be con-
sidered in connection with the roof of coal beds; but there are
others of serious importance, resembling those already described.
Strahan” states that in the Ebbw valley of South Wales, the Rock
Yard and Three-Quarter veins have been washed out for 1,200
yards on one property, a vertical cut of not less than 110 yards.
In another valley, the Rock has been removed for about a mile.
Scott? has described an old valley or estuary due to denudation
and removal of Coal Measures beds. The earlier Coal Measures
were removed and others deposited in their stead. Subsequently,
some of the newer beds were removed and were replaced with
others, also of Coal Measures age. Prestwich,?* who long before
Scott had discussed this ‘Symon Fault,” recognized that it differs
notably from the ordinary washouts of coal and that the Lower
Coal Measures had been removed from an area of great length and
breadth. The work, in his opinion, may have been done by subaerial
_ denudation or by wasting currents. Fragments of coal and asso-
_ ciated rocks are not uncommon in the newer deposits. Geikie**
has given among others an illustration of contemporaneous erosion
: observed in the Coal Measures at Sanquhar, Scotland. Respecting
all, he is compelled to the conclusion, “ it is evident that the erosion
took place, in a general sense, during the same period with the
accumulation of the strata.” De la Beche, in his “ Geological

= A. Strahan, “Geology of the South Wales Coal Field,” Part II., 1900,
pp. 65, 68.
=M. W. T. Scott, “On the Symon Fault in the Colebrook Dale Coal-
field,” Quart. Journ. Geol. Soc., Vol. XVIL., 1861, pp. 457 et seq.
_ *J. Prestwich, “Geology of Colebrook Dale,” Trans. Geol. Soc., IL.
Vol. V., Part III.; “Geology,” Vol. II., 1888, pp. 98, 90.
* A. Geikie, “ Text Book of Geology,” 3d ed., 1893, p. 506.

a TN a 24, Simi ik Uh bate,
cai AS li a lh ea ol a

442 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

Observer,” has discussed such occurrences in detail. Green? de-
scribed several instances seen in the Yorkshire area. The Hands-
worth Rock, 40 feet of sandstone, disappearing towards north and
south, fills a trough eroded in shale. The great deposit, known as
the Rotherham and Harthill red rock, was deposited in a valley
eroded in upturned Middle Coal Measures; and the deposition was
earlier than the Permian, since the red rock underlies the magnesian
limestone. The little coal basin of Commentry in France shows a
striking example of contemporaneous erosion, which has been ex-
posed in cross section by two of the great quarries. Toward the
close of the period of deposit, a valley was eroded in the Coal
Measures. Afterwards, this was filled by successive deposition with
light-colored sands and gravels. At a somewhat later date, an
eruption of igneous rock in the immediate vicinity pushed these
horizontal beds into a compressed, somewhat complex synclinal and
folded the older beds beyond into overturned folds, while faulting
the Grande Couche, to whose roof the erosion had reached.2* The
same process of erosion was repeated in later times and a newer
filled-valley has been exposed during deepening of the eastern
tranchée.

Contemporaneous erosion provides evidence that the rocks
underwent folding during deposition of the Coal Measures. A few
notes from southwestern Pennsylvania will suffice for illustration
and, no doubt, they will recall to the reader instances in other locali-
ties.** The Washington-Brady Bend anticline is crossed by the
Monongahela River at Pittsburgh and the Claysville anticline is
crossed by the Ohio River at a short distance farther west, near
Woods run. These folds existed in the later part of the Cone-

* A. H. Green, “The Geology of the Yorkshire Coalfield,’ London,
1878, pp. 397, 456, 481-484. a

*° J. J. Stevenson, “ The Coal Basin of Commentry in Central France,”
Ann. N. Y. Acad. Sci., Vol. XIX., 1910, pp. 198, 199. H. Fayol has pre-
sented a very different explanation of the phenomena in “ Reunion extra- —
ordinaire dans I’Allier,” Bull. Soc. Geol. France, IIl., Vol. XVI., separate,
PP. 35-37. :

* Second Geol. Survey Pennsylvania, Rep. K, 1876, pp. 310, 311, 324-326; —
Rep. KK, 1877, p. 303. : 4

lef og SIGE SS ASCE

1912] STEVENSON—THE FORMATION OF COAL BEDS. 443

maugh and had lifted much of the region above the area of deposi-
tion. On the latter fold, a deep railway cutting shows sandstone,
25 feet thick, resting on shales with limestone. At a few rods west,
the sandstone suddenly becomes 75 feet thick, replacing the under-
lying beds; but, within two miles, the lower part of the sandstone
disappears almost abruptly and the normal section reappears. The
same sandstone was seen in another section farther north, but, in
that direction, the horizon soon passes into the air while south-
wardly it passes almost at once under cover. The rocks on each
side of this valley have a dip of 80 feet per mile, whereas that of
the sandstone within is but 40 feet. The crest of the Washington
axis is shown well in a railway cutting. There, the shales overlying
the Ames limestone, midway in the Conemaugh, come down and
replace that limestone and underlying beds to an unknown distance
below the roadway; but at barely half a mile the normal section is
reached. This is clearly on the crest of the fold, for the Ames
limestone dips in opposite directions on the sides of the shale-filled
space. On the west slope of the Salzburg anticline in Westmore-
land county, near Penn station, one may see an illustration of alter-
nating erosion and deposition, in type resembling the “Symon
Fault.” This is in the Monongahela formation, somewhat more
than 100 feet from the bottom. At the entrance to a long railway
cutting, a sandstone, 60 feet thick, rests on 6 feet of irregular sand-
stone, containing streaks of coal. Within a few yards, 8 feet of
limestone is shown under the upper sandstone but it continues for
less than 20 yards and is cut off abruptly by the sandstone. In a
branch cutting, the sandstone is well exposed for a short distance
but is soon replaced with yellow shale, which is very local.

Aside from the continued contraction of the area of deposition,
there is little evidence of great movements within the Appalachian
basin. For considerable periods of time, areas of many hundreds
of square miles received no deposits; the anticlines evidently were
developed slowly. The Appalachian revolution apparently spent
its force during Coal Measures time mostly at the east. But in
Europe the Upper Carboniferous disturbances have left more note-

444 STEVENSON—THE FORMATION Or COAL BEDS, [Nov.1,

worthy records. Barrois,** long ago, showed that the great move-
ment in the Cantabrian area occurred between the Middle and the
Upper Coal Measures. Douville had found evidence of similar
conditions in the Rhine country and had concluded that the move-
ment was general between Saxony and the Vosges. Barrois recog- —
nized the time as one of great denudation and reworking of ma-
terials, for the conglomerate of Tineo came partly from Carbon-
iferous rocks. More recently, he has shown by stratigraphical and
paleontological evidence that in the Nord basin there exist two
anticlinals within rocks of the lower coal terrain.

Angular and rounded fragments of coal have been found in
sandstone, shale, limestone and even in the coal itself; that such
occurrences have an important bearing on hypotheses respecting the
formation of coal beds has been patent to students everywhere but
no systematic studies have been made by any except within very
recent years. The conditions deserve careful consideration.

The earliest recorded observation, found by the writer, is that
by Logan,”® who referred to pebbles of coal and coal shale in the —
Pennant as though they were familiar objects. De la Beche speaks
of them in the same way in his “ Geological Observer.” Some of
the pebbles are 2 to 3 inches in diameter and exhibit the definite —
cleavage. Rounded pebbles of coal belonging to the lower series
have been found in the upper—and it is certain that the coal, in some
cases, was hard when removed, for at quarries in Swansea, Sigillaria —
stems show impressions of the pebbles. Jukes,*® in discussing the —
evidence of unconformity between the Carboniferous and the
Permian of South Staffordshire, finds additional proof in the pres-

*C. Barrois, “Recherches sur les terrains anciens des Asturies et de —
la Galice,’” Mem. Soc. Geol. du Nord., Vol. 2, No. 1, pp. 599, 600; “ Exposé
de l'état des connaissances sur la structure géologique du bassin houiller
dans le Département du Nord,” Lille, 1909, p. 20.

*'W. E. Logan, “On the Character of the Beds of Clay lying imine
sige le Coal Seams of South Wales,” Proc. Geol. Soc., Vol. IIL, =

2
F a B. Jukes, “The South Staffordshire Coal-Field,” 2d ed., 1850,
p. 136.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 445

ence of angular and rounded fragments of Coal Measures rocks
with pebbles of coal in the lower part of the Permian.

Andrews" found in the lower part of a sandstone overlying the
Nelsonville coal bed a rounded fragment of coal, measuring 4 by
2 inches. It bears so close resemblance to coal from Straitsville,
only a few miles away, that he believed it derived from that place—
the coal bed being the same at both localities. This great coal
deposit is only 200 feet above the bottom of the Ohio Coal Measures.
Andrews is convinced that the coal had been completely formed by
the time that 12 feet of shale and one foot of sandstone had ac-
cumulated at Straitsville. He observed irregular fragments of
coal, some angular, others rounded, in a sandstone within Wayne
county of West Virginia.

Jordan*® states that the Welsh Coal Measures are divisable into
the Pennant Grit above, with few coal seams, and a lower division,
mostly shale, with numerous coal seams. He found no coal pebbles
in the lower division, but in the lower part of the Pennant they are
present, associated with pebbles of granite. Logan’s pebble of
cannel was found in slate overlying a bed of ordinary coal and was
supposed by him to have been derived from a bed, 2,000 feet lower
in the series. Jordan objects that there is no evidence that the
lower beds were upraised and denuded before deposition of the
upper beds. He thinks that the pebbles were derived “either from
the seam of coal above which they are found or from the destruction
by erosion of a seam of coal, which once existed approximately in
the position in which they are found, the erosion in either case being
effected by the strong water courses which distributed the grains of
sand and other material upon the coal seam.” MHe refers to the
“Rock Fawr” seam near Bridgend, where the sandstone roof con-
tains a notable quantity of slightly rounded pebbles of coal, similar
to those of the underlying seam. Logan’s pebble, he thinks, came
from a superficial layer of cannel in the Penslawdd seam. The

“E. B. Andrews, Ohio Geological Survey, Vol. I, Part L., 1873, pp.
355-357.

“'H. K. Jordan, “On Coal Pebbles and their Derivation,” Quart. Journ.
Geol. Soc., Vol. XXXIIL., 1877, pp. 932, 933.

446 STEVENSON—THE FORMATION OF COAL BEDS, (UNov.1,

effects of a water current are seen in the Forest of Dean, where
a coal seam, 5 to 6 feet thick, was washed out in one portion of the
colliery and redeposited in another, where it is 8 to 12 feet thick.
The character of the pebbles led him to the conclusion that the coal,
prior to deposition of roof materials, “was: to great extent con-
solidated though perhaps only partially indurated.”

In discussing this paper, Moggridge stated his belief that “the
pebbles were derived from broken up coal beds, the debris being
distributed in the newer deposits. There is a bed of good cannel
only 4 miles from Penslawdd, so that one need not look far for the
source, the more so since the cannel is at greater altitude. Morris
thought the pebbles derived from one of three sources; they might
be fragments of floating wood encased in sandstone and carbonized,
they might come from the breaking up of submerged forests, whose
fragments became embedded in sands and clays, or from the break-
ing up of coal beds. Jordan could not accept Moggridge’s sug-
gestion, because the present greater altitude of the cannel bed is
due to late movements, or those of Morris because the pebbles are
confined to sandstone roofs and are not distributed throughout the
series.

It is well to introduce here, in advance, notes having some bear-
ing on the matter in hand, though more upon another, which will
be considered in connection with coal beds themselves. Stevenson*®
found coal fragments in a sandstone overlying the Pittsburgh coal
bed. At one locality, the lower layers “contain lumps of coal,
coarse pebbles and fragments of vegetable stems, the whole looking
as though its deposition was accompanied by enough disturbance to
tear off part of the old swamp. It is clear, however, that not all of -
the fragments found in the stratum belong to the same bed. Some —
of them are crushed and fractured in such manner as to show that
they were consolidated before removal, while others are saucer-—
shaped.” He thinks that the latter came from the Pittsburgh coal
bed and that the others were derived from an older bed, outcropping
at some distance eastward. At another locality, the derivation is

* Sec. Geol. Surv. Penn., Report K, 1876, pp. 90, 137, 285; Report KKK,
1878, pp. 79, 81, 87, 118.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 447

local, for the upper division of the Pittsburgh has been removed and
its fragments distributed in the overlying sandstone. The condition
is in no wise unusual. In a later report, he says that the Home-
wood sandstone, the closing deposit of the Beaver, contains in its
lower portion disks and pots of coal of shape such as one might
expect where a soft mass has been entangled in sandstone and sub-
jected to heavy pressure. At another locality, the sandstone con-
tains coal fragments, some quite large, which he thinks represent a
coal bed removed from the area during deposition of the coarse
more or less pebbly rock. As that rock in this locality fills an old
valley, it is possible that the larger fragments represent boggy
material accumulated on undermined banks. In some places men-
tioned by this observer, the fragment-bearing sandstone rests on
the uneroded Pittsburgh coal. In all probability, a sand-laden
stream, sweeping across the area, removed part of the unconsoli-
dated coal and carried it away to be deposited on an overflow sur-
face along with living plants, as well as with the sand and hardened
coal brought from a distance. The same observer mentions a
locality, where the coal had been cut out and replaced with a con-
fused mass of coal, slate and sandstone. I. C. White** has recorded
several instances similar to the last, in widely separated localities,
where the coal has been replaced with a conglomerate of worn and
rounded pieces of limestone, coal, slate, and sandstone.
“Washouts”’ similarly filled have been reported by other ob-
servers in Pennsylvania and elsewhere. The conditions are pre-
cisely such as one can see in the streams now flowing across the
bituminous field and the conclusion is the same in both cases—that
the stream flows across the outcrops of rocks whose fragments are
in its bed or in the “bottom” deposit of its banks. The Banc des
Chavais in the Grande Couche of Commentry belongs to this type.
Renault** studied very carefully the coal pebbles found in the
sandstones of the Commentry coal basin. Some resemble freshly
*T. C. White, Second Geol. Surv. Penn., Report Q, 1878, pp. 114, 268;

Report Q2, 1879, pp. 270, 274-276; Report Q3, 1880, p. 176.
*=B. Renault, “Quatriéme note pour servir a histoire de la formation

de la houille,” Comptes Rendus, Vol. 99, 1884, p. 201.

.

448 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

broken coal, but others are pebbles with the angles rounded. Their
coal differs from that of the beds in that it is less compact, absorbs
water, has less brilliant fracture and can be cut more readily. It
has the alternate bright and dull lamine of ordinary coal. Ap-
parently, the conversion was not complete when the fragments
were torn away and the interrupted process was not renewed. He
concludes that, during formation of the Commentry coal terrain,
there were frequent erosions of the earlier beds of coal, clay and
limestone ; that those beds do not belong, as might be imagined, to a
much older coal period; that the coal, found as pebbles, is, so to
speak, less advanced, offering some properties differing from those
of plant materials fully converted in place; that the time required
for conversion of vegetable matter into coal, though very long, ap-
pears not to be excessive, since a coal basin of moderate size already
possessed some coal, while the deposits were increasing. There
can be no doubt respecting Renault’s conclusion as to the source.
No rocks older than Middle Coal Measures are known to exist in
this basin of barely 12 square miles, which is divided by the broad
dejection cone of Montassiégé, which contains no coal.

Fayol’s®* observations, recorded in his original work as well as —
in the résumé published in 1890, are of no slight importance in this —
connection. Pebbles of coal, angular or rounded, in all shapes and
varying in size from mere grains to 4 decimeters, occur in all parts —
of the terrain within the Commentry basin. They are rare in the — ‘
conglomerates but abound in the medium-grained sandstones of a
. both les Pegauds and Jes Ferrieres, the coal-yielding divisions sepa-
rated by the barren Montassiégé area. They are associated fre-
quently with grains and pebbles of carbonaceous shale. The char- —
acter of coal in the pebbles varies. Those in the older part of ©
the formation are anthracite, like the adjacent coals; those in les
Ferrieres are meager, as is the coal of that area; while those of les
Pegauds are of flaming coal like that from the Grande Couche. So
that the coals of the pebbles are like those of the immediate area.
At the same time, it is all-important to note that, according to Fayol,

* H. Fayol, “ Etudes sur le terrain houiller de Commentry,” livre premier,
Bull. Soc. Ind. Min., 2me Ser., Vol. XV., 1887, pp. 140, 141.

i
ie

-
pa
=
a
a
3
s
haar
x
; Se
oe
: ie
J
ee
Pa
E
, oe
» See
‘

1912] | STEVENSON—THE FORMATION OF COAL BEDS. 449

pebbles of anthracite have been obtained near the Grande Couche
and that in some pebbles the coal has the appearance as well as the
composition of lignite. But these last are exceptional—they, evi-
dently, are of the type studied by Renault. The distribution of the
pebbles is absolute proof that, before the Gres Noirs coal bed was
formed in its present area, not only the older rocks with anthracite,
but also the Grande Couche itself and its associated beds were ex-
posed to subaerial streams, by which the pebbles of coal and car-
bonaceous shale were rounded. The writer collected many of these
pebbles from a sandstone at less than 60 feet above the Grande
Couche.

Barrois** says that pebbles of coal are less numerous in the
paralic basins of north France than in the limnic basins of the
plateau, but he had opportunity to study some which had been
discovered recently. Geologists, in the majority of cases, have be-
lieved that coal pebbles had travelled for only short distances and
that they prove the process of conversion far advanced when the
fragments were detached; but some, objecting to such rapidity of
conversion, have preferred to believe that the fragments, when
entombed, were merely rolled vegetable matter. He notes the
statement respecting the Commentry pebbles, that some, at least.
show contraction, evidence that the conversion was not complete.
The marshes of the Pas-de-Calais, attacked by tides, give off blocks
of peat, which become rounded and at length ellipsoidal. E.
Geinitz has made a similar observation on the Baltic shore near
Rostock. The Bruay pebbles occur in hard coarse sandstone, are
from mere grains to 14 by 5 by 3 centimeters. They are chiefly
cannel, at times have laminz of brilliant coal and; under the micro-
scope, they show vegetable structure—they recall the peat pebbles
of the Pas-de-Calais. They have suffered contraction, for they
are surrounded by a film of calcite which penetrates the pebbles in
veinules.

As the result of his studies, Barrois has found that coal pebbles
usually occur in coarse sandstones above coal beds; that they have

*C. Barrois, “Observations sur les galets de Cannel-coal du terrain
houiller de Bruay,” Ann. Soc. Géol. du Nord., Vol. 37, 1908, pp. 3 et seq.

450 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

the coal of the area, not differing materially in volatile content; that
they belong to some coal bed not far away, for one never finds
maigre pebbles in a gras area, or the reverse; that pebbles of cannel
occur more frequently than those of ordinary coal. These condi-
tions hardly justify the supposition that the pebbles were brought
by streams flowing over beds, which, already coal, alternated with
shale and sandstone. The Bruay pebbles are all from one coal bed
and that must have been near by. The presence of laminz of bril-
liant coal in the sandstone, identical with the laminz in the cannel,
leads to the same conclusion, because in the Nord basin, as in
South Wales, cannel is in the roof of the beds. When a coal bed
is eroded, the cannel is the first portion to be removed, which
explains the frequent occurrence of cannel pebbles in areas where
that type of coal is rare. Barrois concludes that the Bruay pebbles
came from one bed, in which the material was not wholly converted.
The erosion occurred simultaneously over an extensive area and
was due to changes in course of a stream, loaded with sediment,
which inundated the bog abruptly. It must have come from a
distance, for the deposit contains elements of crystalline rocks,
larger and more abundant than in any other clastic deposit within
the basin.

Petrascheck** investigated the mode of occurrence of coal pebbles
in a sandstone within the Galician area. The deposit is thick,
usually only moderately coarse, but in the portion carrying the
pebbles it becomes irregular and conglomerate. Some fragments of
coal are distinctly rolled, some have merely rounded angles, while
others have the edges sharp. The minutely pitted surface of some
fragments led him, at first, to imagine that they had been peat when
entombed, the pitting being due to pressure by sand grains. But
the conditions throughout compelled him to abandon this conception.
The form and substance of the pebbles favored belief that at the
time of burial the material was already hard. Glance coal breaks

into angular pieces and can endure little chafing, while cannel and

*'W. Petrascheck, “ Das Vorkommen von Steinkohlengerollen in einem —
Karbonsandstein Galiziens,’ Verhandl. k. k. Sti Reichsant., 1909, Wien,
1910, pp. 380 et seq.

2 ak Rete S

TRE na ee HP Rane I
a al ae asi

Sesh,

ee ee ee oe Twn wie
2 TN ate TA ee wary

3912] STEVENSON—THE FORMATION OF COAL BEDS. 451

<arbonaceous shale are rounded easily. The contrasts are shown
well by fragments in this sandstone, for the glance coal is angular
and the cannel rounded. Fragments of slaty coal also are rounded,
but the shale portion resisted better than the coal portion and
the fragments are flatter than those of cannel. The bond between
coal and shale must have been, at entombment, such as is seen in slaty
<oal now. It might be supposed that the pebbles are buried frag-
ments of wood; but such complete penetration of wood by shale is
inconceivable; there would be, moreover, so great change in volume
that the fragments could not retain their form. He is convinced
that the consistency of glance on the one hand and of cannel on the
other is so different as to make certain that the materials had
acquired their characteristics before burial. The source of the
pebbles cannot be ascertained, but they do not appear to have come
from any contiguous bed, and the only suggestion possible seems
to be that they have been derived from much older deposits. The
features of the rock carrying the coal pebbles, especially its coarse-
ness, in which it differs from the sandstone on each side, seem to
suggest that it may occupy a valley eroded in the sandstone.

Coal pebbles are not confined to the Coal Measures. Haast**
found them in Cretaceous sandstone of northern New Zealand and

- Hutton found them abundant in a conglomerate of the same age in

Otago, where the rock rests on the eroded surface of a coal bed.
Fragments of coal have been reported by the writer from upper
Cretaceous sandstones of New Mexico and a large block of oolite
<oal was obtained in the chalk of Kent, England. A more curious
phenomenon is the existence of apparently rolled pebbles in the
coal itself. Gothan*® states that in the Lias area of Fiinfkirchen,
Hungary, there is, near Vasas, abundance of “ Mugelkohlen,” round
to ellipsoidal fragments of pure coal, embedded in almost all of the
<oal beds. In size they vary from nut to two fifths of a meter;

* J. Haast, “ Report on the Geology of the Malvern Hills, Canterbury,”
‘Geol. Surv. New Zealand, 1872, pp. 50, 52, F. Hutton, “ Report on the Geol-
ogy and Gold Fields of Otago,” Dunedin, 1875, p. 106. |

“W. Gothan, “Untersuchungen iiber die Entstehung der Lias-Stein-
kohlenfléze bei Fiinfkirchen (Pecs, Ungarn),” Sitzungber. d. k. preus. Akad.,
Vol. VIII., 1910, pp. 136-143. :

452 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

the surface is smooth, metallic and lustrous, often with a scale-like
coating such as one sees on concretions. They are separated easily
from the surrounding coal, to which they are not related, and they
do not occur in the associated rocks. Gothan considers the various:
suggestions offered to explain the occurrence of these nodules, but
finds them either insufficient or not in accord with the conditions.
He seems to be convinced that they are pebbles, owing their rounded
form to attrition. The Geological Survey collection at Berlin con-
tains similar forms from a mine in the upper Silesian Carboniferous,
where the pebbles of coal are associated with others of quartzite,
granulite, etc. There and at other localities the association is evi-
dence of transport, but, at Vasas, rock pebbles are unknown.
Gothan sees no reason to suppose that they came from a distance.
‘He conceives that they may have been formed even while the
Jurassic Waldmoor existed and that wind-moved water may have
detached pieces of the harder peat. The more resistant portions of
those pieces would be rubbed against each other until rounded and
eventually they would sink into the peaty mud. These “balls”
occur elsewhere. Hughes found*! balls of very pure coal enclosed
in coal beds in India and Stainier reports that at Turon in Asturia
there is a bed formed wholly of rolled pebbles of coal; he mentions.
two localities in Australia, where coal pebbles are embedded in —
coal of notably different composition and states that such pebbles
occur in the coal basins of Mons and Charleroi, Belgium.

These citations suffice to illustrate the varying conditions im
which coal pebbles or fragments occur in clastic rocks or even im
coal beds themselves. Gothan’s explanation for existence of balls
in coal may account for origin of the material. A broad stream
meandering through a deep bog might easily tear off small frag-
ments, as supposed by him, but even then the necessity for trans-
port remains, since there could be no sufficient chafing in quiet or
gently moving water. In all other cases, the transportation is clear.

“T. Hughes, “ The Jherria Coalfield,” Mem. Geol. Surv. India, Vol. V., —
pp. 254-256; X. Stainier, “ Des rapports entre la composition des charbons
et leurs conditions de gisement,” Ann. des Mines de Belgique, Vol. V., 1900,
PP. 95-97. |

|

1912] STEVENSON—THE FORMATION OF COAL BEDS. 453

In some instances, the distance was small or the detached pieces
were enveloped in sands and swept along as part of the mass to the
place of deposition. This was evidently the condition where one
finds irregular chunks and petty lentils of coal as in the sandstones
of western Pennsylvania and at many places in other coal fields.
These masses, torn off by a sand-laden stream, were transported
without material attrition and were deposited where the speed
slackened on an overflow surface. It must be noted that one rarely
finds such masses in localities where the underlying coal bed shows
evidence of erosion; very often the sandstone with coal fragments
rests on an uneroded coal bed; while in very many cases the sand-
stone resting on a bed with channeled top is wholly without note-
worthy fragments. The channel was dug in the vegetable material
and was filled with sand of later arrival. It is difficult to conceive
how material torn from a bed could be deposited over or very near
the place of origin, unless one imagine a whirlpool of modest area;
but it is easy to understand how a sand-laden stream flowing irregu-
larly across a plain, covered with a thin marsh, could remove the
cover and deposit it elsewhere. That condition is approached in
considerable areas by streams like those of the Paraguayan region,
where the channels are aggraded quickly in flood time and the
turbid waters are driven to seek new courses.

But if the coal fragments be rounded, they point to conditions
wholly different from those just considered. In the summary of
observations given above, there are references to the process of
conversion and to the time required for its completion. Those
topics lie, for the most part, outside of the question in hand and are
related to it only incidentally; but the structure and composition
of coal in the pebbles make certain that it was already well advanced
in conversion when removed from the bed. The Commentry
pebbles in some cases were already anthracite while others, those
from the Grande Couche, were still flaming coal; for both types
are found in the same sandstone—that above the Grande Couche—
and, along with them, are thoroughly rounded pebbles of car-
bonaceous shale.

In not a few localities the pebbles are cannel and they have been

454 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

regarded as derived from the cannel bench of an underlying bed.
That cannel pebbles should retain their shape and size better than
those of glance coal is normal, because cannel is tough and glance
is brittle; but there is no reason to suppose that sapropelic muds
became hard and resistant with great speed while the underlying
felted peaty materials became compacted slowly. It would seem
more probable that cannel pebbles are more numerous because
cannel survived the shocks of transport and the glance coal was
reduced to minute grains. The evidence that the pebbles have
undergone much change since entombment seems to be slight and of
hardly material importance. The writer, during a second visit to
Commentry in 1910, examined very closely more than 100 coal
pebbles scattered through the sandstone up to 60 feet above the
Grande Couche. In only two, possibly three, was there appearance
of contraction. Almost without exception, the pebbles were coated
by a thin film of clay, such as commonly covers, in whole or in
part, coal fragments on beds of actual streams in the Appalachian —
basin. This mud-coat, by drying, might leave a space in which a —
film of calcite could be deposited; but, aided by strong pocket-
glass, the writer could find no evidence of contraction in the
pebbles. There had certainly been no change after the sandstone
was compacted. Fracture planes are rarely seen but, in very many
pebbles, the typical cleavage is distinct. The pebbles of shale are
not clay balls; they are fragments of laminated shale. In any event,
the form of the pebbles, shale and coal alike, is that due to stream
transport. Some indeed are flattened like coast shingle, but that
is due merely to the original form, a block with laminated structure.
Every feature of these pebbles appears abundantly on the beds of
streams flowing across the Pittsburgh coal area of southwestern
Pennsylvania. They leave no possible room for doubt that the —
coal fragments, like those of sandstone and shale, were deposited
by streams flowing over outcrops of coal, shale and sandstone. —
In the larger areas, pebbles are not distributed indiscriminately
throughout the mass of sandstone or shale; they are localized. —
Petrascheck’s descriptions as well as those of the Silesian area by
Gothan recall the conditions observed in western Pennsylvania but

ig
'@
.
ia

1912) STEVENSON—THE FORMATION OF COAL BEDS. 455

they seem to be in channels within sandstone, whereas those of
Pennsylvania are channels within coal beds. The coal pebbles in
the latter localities could not have come from the enclosing coal;
all of them, coal, sandstone, shale, limestone, are rounded as by
stream transport and the rounding is such that they must have been
brought from a considerable distance. Everything about these
pebbles of coal indicates that, during much of Coal Measures time,
a considerable part of the area of deposition was land, showing out-
crops of the various types of Carboniferous deposits, whence flow-
ing streams gathered their loads of detritus. With varying condi-
tions, streams shifted their courses or washed down the materials
accumulated on their beds to fill the lower reaches of their channel-
ways.

The phenomena of non-conformity and of contemporaneous
erosion compose a body of evidence that throughout the Pennsyl-
vanian the progress of events was like that in previous and in suc-
ceeding periods of the world’s history; there were foldings of the
crust, there were differential elevations and subsidences and at all
times much of the region was exposed to subaerial erosion.

THE DISTRIBUTION OF SEDIMENTARY ROCKS.

The Coal Measures rocks are sandstones, shales, limestones and
coals, the terms being employed in the broad sense. All occur in
each of the great eras and limestone seems to be wanting in only the
Pocahontas or earliest stage of the Pottsville. An understanding of
the geographical distribution and structural variations of these rocks
should give some insight into the conditions prevailing at the time of
their deposition ; but determination cannot be complete, as erosion has
removed the beds from a broad strip on the eastern border between
the anthracite fields of Pennsylvania at the north and the Alabama
line at the south. Beyond the latter, one finds on the eastern side
only Pottsville beds; later formations are unrepresented ; it is more

than possible that they never were represented.

Pocahontas deposits occupied an area on the eastern side, very
narrow at first but widening gradually toward the west until the close

_ of the stage, attaining the greatest width near the Tennessee-Virginia

PROC. AMER. PHIL. SOC. LI. 207 C, PRINTED DEC. 14, 19132.

456 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

line. Whether or not they extended across Tennessee into Alabama
cannot be determined by the stratigrapher, the palzobotanist must
answer the question; but one can hardly resist the a priori conclu-
sion, whatever that may be worth, that the Pocahontas did extend
across Alabama and around to the southwestern outlet, as no outlet
westward for the waters of the eastern valley appears in Virginia
and Tennessee, and there seems to be not the slightest reason for
supposing an eastern outlet anywhere to the Atlantic. The New
River area is much greater, embracing the southern and middle
anthracite fields at the north, where the western limit is well defined.
In the bituminous region, the eastern outcrop is continuous from the
northern limit in West Virginia into Alabama, where the formation
is recognizable throughout the whole field; northward, on the west-
erly side of Alleghania, it occupies a broad area to the northern
border of Kentucky whence it extends in a narrow strip almost to
Lake Erie. The Beaver, at its close, evidently covered the whole
basin from the northern border southward to central Tennessee;
beyond that line it has been removed by erosion for about 75 miles
and it is not reached again until one is well south from the northern
line of Alabama. The stratigrapher cannot make correlation of
horizons there, but the presence of Beaver seems established beyond
doubt.

The formations of the Athens are recognizable in the anthracite
fields as well as throughout the bituminous region southward into
Kentucky and West Virginia; how extensively they were repre-
sented in Tennessee is undetermined. The Wheeling and Dunkard 4
deposits, of less original extent and confined to the northern part of a |
the bituminous region, can be studied not only by means of the many _
recorded exposed sections, but also by means of many hundreds of - :
oil-well records, which make clear the conditions as they existed
in the deeper portions of the region.

The Sandstones.—Stratigraphers have asserted many times that
sandstones are of very little worth as horizons. It is true that those -
deposits exhibit abrupt changes in structure and composition, both —
laterally and vertically; and it is equally true that, in not a few

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 457

cases, sandstones, due to filling of valleys and occupying restricted
areas, may be misleading. Yet examination of broad areas proves
that many sandstones are of great geographical extent, though often
___ interrupted and sometimes assuming the form of immense lentils
f __ embedded in shale. In a general way, one may consider the varia-
= tions as alike in all; at one locality, the mass may be fine, coarse or
4g even pebbly to conglomerate in its different layers ; at another, it may

be wholly fine, coarse or pebbly ; while at a third, it may be repre-
sented by more or less argillaceous shale. It may be massive, irregu-
larly bedded or shaly and the change in structure or composition
may be abrupt or almost imperceptible. There would appear to be
no system in these variations; yet it may prove worth the pains to
seek some explanation of the conditions, for though the quest may
fail of complete success, one is likely to gather suggestions by the
way, which may prove of service in other directions. Four sand-
stones have been selected for study: Bonair of the New River,
Homewood of the Beaver, Pittsburgh of the Monongahela and
Waynesburg of the Washington. But in considering these, one
must make comparison with others.

The Bonair sandstone of M. R. Campbell, midway in the New
River formation, can be followed from its northern termination in
West Virginia, along the eastern outcrop, and from northern Ten-
‘Messee, on the western, almost continuously into the southeastern
basins of Alabama. The eastern and western prongs on the sides of
\ 3 Alleghania unite across that old ridge in central Tennessee, whence
the rock spreads as a sheet throughout the coal area of southern
Tennessee and of Alabama. The northern limit on the western side,
in the Ohio basin of Schuchert, is very near the northern line of
Tennessee where it is without pebbles; but within less than 20 miles
southward it becomes notably a pebble rock; at 12 miles east from
the latter place it is described as 55 feet of “ conglomerate and sand
stone” and a similar description is given for a section at 25 miles
south from the last; but at 25 miles south-southwest, the Bonair is
a mass of conglomerate with shale, and the rock is still coarser at
a few miles southeast, on the eastern outcrop near the Alabama line.
At a few places, the western outcrop swings several miles toward
the west, approaching the border of deposit, and shows another type

eT eT RL A UO em Ln I

SHS mR SENT nih 7 Ome tnes romm f
a at. c

458 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

of change. In Putnam county, the sandstone is very thin, with an
unusual thickness of shale above and below it, the greater part of
. the mass having been replaced with shale; in Warren county, pebbles
seem to be wanting and the rock is merely a cross-bedded sandstone.
Where the mass passes under cover on the east side of this area, it
is much less coarse than along the outcrop line.**

On the eastern side of the coal area in Tennessee, the Bonair is
largely pebble rock near the Alabama line, but at 20 miles north, it
is sandstone, 65 to 75 feet thick, and this is its character for several
miles. But, at 32 miles from the Alabama line, it is a mass of “ con-
glomerate and massive sandstone,” a condition prevailing northward
at all exposures for about 30 miles; but, thence until near the Vir-
ginia line, the sections show only sandstone with some shale, there
being apparently no pebble rock. The outcrop on this side trends
considerably east of north, so that, near the Virginia line, one is 75
miles away from the western outcrop; yet the rock is without pebbles,
whereas on the western side, in the Ohio basin, it is coarse and pebbly.
The probable equivalent in southwest Virginia is for the most part
loosely cemented sandstone with shale, changing to shaly sandstone
toward the west but becoming a great sandstone with some pebbles at
a few miles farther along the extreme easterly outcrop. Beyond
New River in West Virginia, the Bonair horizon has been recog-
nized for about 40 miles; ordinarily the rock is merely a sandstone,
but, toward the northern termination, the outcrop is carried eastward
and, at the extreme exposure, one finds the rock very coarse with
quartz pebbles abundant and at times with diameter of 2 inches. _
Westwardly it decreases rapidly and within a few miles thins out —
against the slope of Alleghania.**

Returning to the south and going southeastwardly in Alabama,
one finds striking changes in the Bonair. In that state are several
troughs, separated by narrow intervals and lying southeast from the

continuous area, followed thus far, while that area extends unbroken

“ This summary is based on observations by J. M. Safford, C. W. Hayes, —
M. R. Campbell, recorded in “Carboniferous of the Appalachian Ba
Bull. Geol. Soc. Amer., Vol. 15, 1904, pp. 114-126, 136-146.

“8 For the observations of Campbell, Hayes, F. H. Bradley, Safford, I. C.
White and Stevenson, see Bull. Geol. Soc. Amer., as above, pp. 136-190.

AMR yi re a
SSS See TR eT

ae
3
ie

a
i 4
a
a4
: i.
' 4

1912] STEVENSON—THE FORMATION OF COAL BEDS. 459

into the Warrior coal field. Raccoon mountain, a prong from the
continuous area, shows on its westerly side the Bonair sandstone,
30 to 50 feet thick and in great part pebbly; but on the easterly side
the thickness is 75 to 80 feet and the rock is almost wholly pebbles.
On Blount mountain, the southern prolongation of the east side of
Raccoon, the mass thickens southwardly along the strike to 100 and
finally, as estimated, to 500 feet. It is not pebbly throughout, but
in portions where conglomerate prevails, the pebbles are not cemented
firmly. In the small Lookout area, the Bonair is 50 to 60 feet thick
and very coarse near the Georgia line, but at 10 miles southwardly it
is a moderately coarse sandstone. The Cahaba basin is only a short
distance southeast from the strike-line of the Lookout, but the
interval sufficed for great change and the Bonair horizon is marked —
by more than 600 feet of conglomerate, sandstone and gritty shales;
while in the Coosa field, only a few miles farther southeast, the rock
is coarse conglomerate about 500 feet thick. The Lookout area, at
the Tennessee line, is barely 30 miles from the present border of
Archzan and the Coosa area is several miles nearer. The latter is
not more than 30 miles from Raccoon mountain in direction of dip.
The rock is coarsest in Coosa, less so in Cahaba, less in Blount and
still less in Raccoon; in the Warrior basin beyond, one finds the
Bonair persistent almost to the western boundary of Alabama, but
losing its coarseness and at length replaced more or less with shale.**

Certain features of the Bonair should be emphasized. Where
the western border of its area is approached in Alabama and at a
few localities in central and northern Tennessee, the rock is less
thick, with few pebbles, a more or less cross-bedded sandstone, at
times replaced in part with shale. Along the western outcrop in
Tennessee, aside from the extreme western localities, the rock con-
sists, in considerable spaces, very largely of pebbles, while in other
and intervening considerable spaces, it is merely a sandstone with
layers of pebbly rock varying in number and thickness in different
localities. And this condition exists where the Bonair passes under
cover toward the east, as also where the equivalent area is cut by

“For the observations by H. McCalley, A. M. Gibson, Safford, Hayes
and J. Squire, see as above, pp. 126-136.

460 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

the outcrop farther south. But where the horizon is exposed on the
eastern outcrop near the Alabama line, and thence northward for
miles the rock is pebbly with layers of conglomerate: while farther
north, for an equally long distance, the rock is sandstone, rarely
containing conglomerate layers but not unfrequently layers of shale.
It must be noted that spaces in which conglomerate features prevail
throughout the mass appear, from the descriptions, to be narrow and
that bands of conglomerate pass out from them into the sandstone
on both sides. At times the conglomerate is as a lentil in the sand-
stone. The features are the same in the southeastern basins of Ala-
bama, for there the conglomerate shows vertical as well as horizontal
passage into finer material.

The other great sandstones of the New River show similar varia-
tions, but conditions in successive beds are rarely the same in any
locality. The Etna sandstone, below the Bonair, can be recognized
in an almost equally great area; it varies in texture as does the upper
sandstone; but it is often comparatively fine-grained and without
pebbles where the Bonair is very coarse, and very coarse where the
Bonair is not coarse. The sandstones were formed after the same
manner, though the local conditions varied.

The Homewood sandstone of I. C. White is the closing deposit
of the Pottsville, apparently the first bed to cover the whole extent
of Alleghania. It was recognized in the anthracite fields by its
lithological character and the identification was made complete by
D. White’s study of the plants, which proves that it underlies the
first beds carrying an Allegheny flora. It can be followed in the
bituminous region from northwestern Pennsylvania into northern
Tennessee, beyond which to central Alabama it has been removed
by erosion. Its equivalent in Alabama has not been determined.

The Homewood is, for the most part, a coarse conglomerate in
the southern and middle anthracite fields, becoming less coarse in the
latter, but even there containing pebbles up to the size of a hen’s
egg. The coarseness decreases in the northern field and at the east-
erly end the deposit is a sandstone with layers of “ pea conglomerate.”
The small Broad Top area, which may be regarded as on the line
of strike with the northern field, shows only a moderately coarse
sandstone with occasional pebbles, rarely one half inch in diameter.

~

1912] STEVENSON—THE FORMATION OF COAL BEDS. 461

_ Some insignificant fragments, containing a score or two of square
miles, remain, at the northwest, between the northern field and the
bituminous region. In those, the rock is for the most part a massive
conglomerate, with occasional fragments as large as a walnut, but
- there is little of fine material, showing marked selection by the
depositing agent. Along the Allegheny front, the Homewood is by
no’means a coarse rock at the north in Clinton but in Center, the
next county south, it has one part exceedingly coarse, with mostly
quartz pebbles, at times as large as a hen’s egg. In Blair, no pebbles
are reported but in Bedford there are some pebbly layers; thence
southward to the Potomac, it seems to be merely a massive sand-
stone. The only unexpected feature here is the presence of large
pebbles in Center county.

This sandstone is exposed frequently in a strip, 75 miles wide,
west from the Allegheny crest. On the northern border in Bradford
county, it contains occasional layers of pea conglomerate, but those
disappear quickly toward the west so that pebbles are few in the
adjoining county. Southward to the Conemaugh River, half way
to the southern boundary of the state, there is at most localities only
sandstone, sometimes broken by shales; but in Clearfield county,
midway in this strip, and just west from the Center county area,
very coarse rock is reported at this horizon, there being layers of
conglomerate with quartz pebbles often as large as a hen’s egg.
The deposit is in an irregular narrow space, extending half way
across the county and the coarse material is wanting on the western
border. This marks the eroded crest of Alleghania and the Home-
wood rests on what seems to be the Logan or lowest deposit of the
Mississippian. South from the Conemaugh, the Homewood is vari-
able ; at one locality it has 70 feet of sandstone while at 4 miles away
the interval is filled almost wholly by shale. But for the most part,
from the Conemaugh to the Baltimore and Ohio railroad in West
Virginia, the rock is a moderately coarse sandstone with occasional
pebbles, seldom larger than a pea.

' Farther west in Pennsylvania, the Homewood is sandstone at
all localities along the northern border, varying in thickness from
15 to 70 feet at expense of underlying beds. Pebbly layers occur
at times but the pebbles are small; southward, in Clarion and

hap ind mens

462 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

Venango, it is coarse to somewhat pebbly sandstone at some locali-
ties but shaly at others; there, as in northern Butler, it varies from
15 to 80 feet, always at expense of underlying beds. In Mercer it
is from 70 to 30 feet, being thickest at the north where it varies
from good building stone to pebbly rock, while farther south in
Lawrence the horizon is marked by shale to coarse pebbly rock, but
in most of the county it seems to be represented by fine material.
This is within the drift covered area and the exposures are not suffi-
cient for determining the relations of the pebbly areas.*®

The change beginning in western Pennsylvania becomes very
marked in Ohio. Along the northern and western outcrop the deposit
is wholly indefinite, being mostly shale, sandy to argillaceous, with
occasionally some shaly sandstone. So great is the contrast between
these and the eastern conditions, that for a generation the relations
between the Ohio and the Pennsylvania Measures were ground for
very serious dispute. The Homewood is nowhere in Ohio an impor-
tant member of the section. In Kentucky the interval is filled with
characterless shale and sandstone. In northern Tennessee, the sec-
tion extends to and above the Homewood horizon and without doubt
one of the important sandstones is equivalent to the Homewood. On
the eastern side in Virginia and West Virginia, the horizon is distinct,
though at some localities, north from New River in the latter state,
one cannot differentiate the Homewood from underlying beds. But
the rock underlying the Allegheny flora is usually a well-marked
sandstone for at least 40 miles north from that river; there, how-
ever, the outcrop turns toward the east and the rock becomes pebbly.
In Tucker county, the last eastward exposure shows 55 feet of rock,
the lower portion for 40 feet being massive conglomerate. West-
wardly from the outcrop, the rock rapidly becomes less coarse and,
within a score of miles, it is shaly sandstone or shale.

The Homewood is buried deeply in the greater part of West
Virginia, north from the Kanawha River, as well as in eastern Ohio

* The observations by F. Platt, W. G. Platt, I. C. White, H. M. Chance,
E. V. d’Invilliers and Stevenson are recorded in “Carboniferous of the
Appalachian. Basin,” as above, pp. 42-70. The reader will find an admirable
summary of earlier observations by H. D. Rogers, J. D. Whelpley, R. M. S.

Jackson, P. W. Shaeffer and J. P. Lesley in H. D. Rogers’s “ The Geology of =
Pennsylvania,” 1858, Vol. II., pp. 21-26.

i
: 2
4

1912] STEVENSON—THE FORMATION OF COAL BEDS. 463

and southwestern Pennsylvania. For that area one can depend only
on the series of oil-well records, chiefly those-collected and collated
by I. C. White. Where exposed along the eastern and southern
border in West Virginia, the horizon is marked usually by a sand-
stone, seldom very coarse and sometimes shaly. In the interior or
deep part of the basin, where the coal beds are indefinite, it is not
always easy to carry the section, though the drillers find no difficulty
in identifying the horizon. At the north, in the “ Panhandle,” the
Homewood seems to be represented in most cases by shale, sandstone
occurring, for the most part, as filling valleys. So also in Washing-
ton of Pennsylvania and Wetzel of West Virginia the interval is
frequently filled with shale. The horizon is indefinite throughout ;
in many records it is marked by sandstone, in many others by shale.
There is no room for doubt that, in considerable spaces, sandy shale
was consolidated into sandstone; but careful tabulation has con-
vinced the writer that, in not a few of the long lines of records
reporting sandstone, one has merely the records of subaerial valleys
eroded not long before or after the close of the Beaver.

The Homewood material came from all sides of the basin. On
the eastern side, the quartz pebbles from the old Appalachian land
decrease rapidly in size westward; the strip of coarse rock in Center
and Clearfield counties of Pennsylvania with possibly related patches
in Jefferson and Elk counties as well as a similar strip near the
northern outcrop may be records of valleys heading east from the
present Allegheny front. The materials at the west came clearly
from the low slopes of Cincinnatia and from the north. The very
marked variations in thickness, always at the expense of underlying
beds, leads one to suppose that the irregular crustal movements, so
characteristic of the Allegheny, had already begun.

The Allegheny was a time of great irregularity of deposition,
there being abundant evidence of subaerial erosion at many places
and at different horizons; and the old valleys have been filled, in
most instances, with more or less pebbly sandstone. At the south-
east the formation is marked by coarse massive sandstones extending
into the Conemaugh, which cross West Virginia in southwest direc-
tion; but they lose their coarseness quickly toward the northwest.
The sandstones of this formation as well as those of the Conemaugh

464 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

become less important in Ohio, where occasionally they contain some
small pebbles.

The Pittsburgh sandstone of H. D. Rogers, the first great inor-
ganic deposit of the Monongahela, is separated from the underlying
Pittsburgh coal bed by a shale varying much in thickness—often
wanting. The distribution and characteristics of this sandstone
show that great changes had taken place since the close of the Beaver,
even since the close of the Allegheny. The area as it now exists is
restricted to the southwest corner of Pennsylvania, a narrow strip
of eastern Ohio and north central West Virginia. Outliers in syn-
clinals at the east as far as the Potomac area of Maryland and West
Virginia may be regarded as evidence that the eastern border of the
deposit was not more than 75 miles west from the Archean of
Appalachia.

The horizon is marked by shaly sandstone and sandy shale in the
outliers, but when one, going westward, reaches the continuous area
in Westmoreland and Fayette of Pennsylvania, he finds commonly a
hard massive sandstone, occasionally changing into shaly sandstone.
I. C. White has followed this in West Virginia to the Kanawha River
and thence along the southern outcrop into Ohio. There, as in Penn-
sylvania, the rock is often coarse, at times forms cliffs, is feldspathic,
seldom pebbly, except at the southwest, and the pebbles are always
small. Within little more than a score of miles from the eastern
outcrop this rock disappears, permitting, in southern Pennsylvania
and adjacent part of West Virginia, the Redstone limestone to rest
on the shale overlying the Pittsburgh coal. The change is very
abrupt. At Morgantown, West Virginia, this sandstone, 40 feet
thick on the east side of the Monongahela River, is absent on the
west side and its interval has disappeared from the section. In
Pennsylvania, this sandstone extends southwardly from the northern
outcrop 60 or 70 miles but it thins westwardly so that in the West
Virginia “ Panhandle” it is absent. Its continuity along the northern
outcrop is broken and a gap of perhaps 25 miles is in the panhandle ~
and Jefferson county of Ohio, but the rock reappears in Harrison
county of the latter state, where it is 40 to 70 feet thick. Thence it
has been followed to southern Ohio, where it is continuous with the
southern border as determined by I. C. White in West Virginia.

5 EAT TNE LLIN III Bt wi mi =.
Le eee aM MC rT eee ee et Sm

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 465

Whether or not the sandstone existed in the northern area, where
no trace remains, cannot be determined. Erosion has removed the
whole section in the space where the sandstone should be present;
but it seems probable that the sandstone was not wholly continuous,
as an outlying exposure in Jefferson county of Ohio shows only
shale. Aside from this gap at the northwest, the sandstone is prac-
tically continuous around the whole Monongahela area; it is often
coarse, sometimes shaly, at others massive, is seldom pebbly, except
at the southwest, where it has conglomerate layers with pebbles up
to an inch in diameter; occasionally it is replaced with sandy, even
argillaceous shale. It thins away rapidly toward the center of the
area; well records in the deeper part of West Virginia frequently
note sandy shale or sandstone, just above the Pittsburgh coal bed,
but, in view of the disappearance of the deposit at the border of the

area, these occurrences cannot be taken as its equivalent.

The material came from all sides of the basin, as is clear from
the distribution, but on the western and southwestern outcrop the
rock is coarse, at times even conglomerate, whereas the earlier sand-
stones are fine grained. If the conglomeratic sandstones at top of
the New River were exposed to erosion at this time, one would have
no difficulty in determining the source of the material. That those
sandstones were exposed appears the more probable when one con-
siders that the area of deposition had become greatly restricted.
The coarse rocks of the Logan in southern Ohio, long exposed, may
have yielded some of the material, but Hyde’s description of those
deposits makes clear that they were not the source of the larger
pebbles. The character of the material along the eastern outcrop
suggests that it had come from a distance and had been rehandled
many times.

_ The higher sandstones of the Monongahela in Pennsylvania are
mostly of small areal extent and are present for the most part on
the borders of the Monongahela area; but in West Virginia they are
thicker and more extended. Yet there as in Pennsylvania they
decrease toward the center of the area and are replaced with finer

_ deposits.

The Waynesburg sandstone, separated by a thin deposit of shale

466 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

from the underlying Waynesburg coal bed, is the first impor
member of the Washington formation.

This sandstone was not seen in the Broad Top basin of Penn-
sylvania but it is present and 45 feet thick in the Potomac region of
western Maryland. The horizon is not reached in other outlying
patches of the higher coals and only occasional fragments remain
on the extreme east side of the continuous Washington area. These,
separated by intervals of several miles, consist of coarse sandstone
containing pebbles of small size, scattered irregularly throughout
the mass. At six or eight miles farther west, the rock is continuous.
At the northern outcrop it is from 25 to 50 feet thick, consisting of
sandy shale to laminated sometimes massive sandstone; thence to
the West Virginia line the same character persists, though the lower
part tends to become massive and the thickness increases at times
to 75 feet, but not at expense of underlying deposits. Oil well
records show that in the extreme southwest corner of Pennsylvania
this “ Bluff Sand” of the drillers persists with thickness of 55 to
65 feet. Westwardly into the West Virginia panhandle the deposit
is somewhat thinner, less well consolidated, while the lower portion |
occasionally contains pebbly layers. Southwardly in West Virginia, —
I. C. White has followed the Waynesburg sandstone along the east-_
ern and southern outcrop into Ohio. It is 50 to 75 feet thick and —
for long distances forms rugged cliffs. At the southeast, on the
Pocatalico River, he found it massive, very coarse and pebbly. In
the interior of West Virginia, this sandstone is persistent in all well —
records southward to some distance beyond the Baltimore and Ohio —
main line and westward to the middle line of Doddridge and Wetzel —
counties. Farther west, it is seldom enough consolidated to be
called “sandstone” in the drillers’ record. Farther south, the
records can hardly be compared; typical horizons are lacking in a ©
considerable area and the region is marked by notable irregular
in intervals. e

Following the northern border, one finds this sandstone 50 feet :
thick in Jefferson, Harrison and Belmont counties of Ohio and it ie
persistent thence along the western outcrop. In Morgan county it
contains layers of pebble rock; in western Washington it is 50 feet —
of sandstone with no pebbles reported, while in the southeastern A

'
.
}

1912) STEVENSON—THE FORMATION OF COAL BEDS. 467

part of that county a massive pebble rock extends at times to almost
100 feet above the Waynesburg coal bed. Within the oil region of
the same county the Waynesburg is represented by 28 feet of pebble-
rock. In Athens and Meigs it is a coarse sandstone, at times a
pebble-rock in the latter county, where it becomes continuous with
the southern outcrop in West Virginia.

The Waynesburg sandstone can be traced almost uninterruptedly
around the Washington area; it extends many miles farther south
and west into the interior than does the Pittsburgh sandstone ; on the
western outcrop it is coarser than that deposit and shows the pebbly
layers much farther northward, while it extends many miles farther
eastward. The north-south area, in which it is not recognizable dis-
tinctly by comparison of drillers’ records, is not more than 50 miles
wide and 100 miles long. The rock varies in structure, often abruptly,
so that within a very short distance the topography may change from
rude to gentle outlines; but the variations are like those of other
sandstones. The conglomerate bands and occasional areas of con-
glomerate rock on the western outcrop indicate that the source of
the Pittsburgh pebbles had become more available. The presence of
conglomerate and very coarse sandstone at Pocatalico on the south-
east outcrop certainly indicates a source of pebbles not far away,
but the occurrence may indicate also a buried valley.

The higher sandstones of the Washington are very indefinite at
the north, where the changes are so frequent that the beds must
be taken as lentils of no great extent; but the Marietta sandstones
of I. C. White are in the southwestern part of the area, where, in
earlier times, only irregular deposits existed. This group was named
because quarried near Marietta on the Ohio River in Washington
county of Ohio; but it is recognizable for scores of miles in each
direction within the Central area, where red shales are the striking
feature, where the earlier sandstones have disappeared to be replaced
with the red shale containing lentils of sandstone. They indicate
extensive exposures of coarse rock at the southwest and west.

Sandstones of the Greene or closing formation of the Penn-
sylvanian tell even more clearly of the changing conditions. The
great Fish Creek and Gilmore sandstones near the top of the forma-
tion occupy the middle line of the area from their northern outcrop

468 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

to their last exposure in West Virginia. They are coarse, loosely
cemented and weather into caverns. The area in which they remain
is too narrow to afford information respecting the local conditions
of deposit. Their presence along the middle line of the area, where
the lower formations have little aside from fine materials, marks the
approaching close of deposition in the Appalachian basin.

It is evident that the materials for these sandstones had not a
common source. The Bonair, east from Alleghania, received its
sand and pebbles from the east, from Appalachia; it becomes less
coarse as it approaches Alleghania but beyond that ridge it is again
coarse, even pebbly. The sands and pebbles of this western prong
must have come from the north as did those of the still newer beds
of the New River. The Homewood like the Bonair is very coarse
in eastern parts of the basin but the pebbles decrease in size as well
as number toward the northwest. But in much of western Penn-
sylvania, the rock is coarse and more or less pebbly. Here again
one must look to the north for the source of coarse material; none
could come even from the line of the present Allegheny mountains,
for there the rock is without coarse elements except along narrow
easterly-westerly lines, marking filled valleys, cut probably in the
sandstone itself. The fine sands and argillaceous shales, so com-
monly marking the horizon in Ohio, point unmistakably to the low
Cincinnatia at the west as their place of origin. The sandstones of
the higher formations extend successively farther toward the in-
terior of the area of deposit, and for the most part become coarser
and less firmly cemented as one ascends in the series. The area of
deposit was contracting throughout and elevation along the borders
permitted the streams to cut down to the coarse beds of earlier
formation. :

The abrupt variations in structure and composition, laterally
and vertically, seem to find explanation in the phenomena of actual
river deposits. River phenomena are distinct in the Bonair west
from Alleghania. Along the middle line of the old channel way
the rock is coarse, usually with abundant pebbles of considerable
size, but on each side the coarseness diminishes so that, at the east,
one finds sandstone with pebbly layers and, at the west, merely

a ae ce

OP TE SL MAO ENS NS ABMs MMH ae
a ik a i i SO a al hae Nae cane ay

IO APT ene pV
De ee

1912} STEVENSON—THE FORMATION OF COAL BEDS. 469

cross-bedded sandstone with shale. Where the sandstones extend
over broad areas, the conditions are less quickly apparent; but the
channel-ways of streams across the often flooded plains are marked
by the lines of coarse materials, while the migrations of those
streams are recorded in pebbly bands at various levels, now on one,
now on the other side of the more or less persistent channel-way.
The form of the pebbles and of the sand grains is that due to the
action of running water ; the remarkable freedom from argillaceous
matter characterizing so many sandstones and conglomerates could
be brought about only by running water supplemented, perhaps, by
the winds.

Other features of the sandstones deserve consideration.
Tree-trunks have been observed in sandstones of all ages since

the Devonian. Long ago J. Hall found fragmentary stems in the

Devonian of New York; Dawson reported them from rocks of the
same age in Canada; Sherwood saw them in northern Pennsylvania
and Newberry described forms from the Lower Devonian of Ohio.
Such stems are not rare in the Upper Pocono (Logan) of Pennsyl-
vania; they have been reported from the New River beds of Ohio,
the Beaver beds of Pennsylvania, Ohio and West Virginia; the
Millstone Grit of New Brunswick; the Allegheny beds of Penn-
sylvania and West Virginia and occasionally from sandstones of
higher formations. They are characteristic of Carboniferous sand-
stones in other areas as well as of those of other times.**

In fine grained sandstones one usually finds only small pieces
and comminuted fragments of wood but occasionally a large almost
uninjured stem has been found, resembling those sometimes dropped
on overflow plains by receding floods. Large trunks are not re-
ported from many localities but they have been seen most frequently
in coarse sandstones. Hildreth saw some more than 30 feet long
in a Beaver sandstone on the Kanawha River; another stem, in

“S. P. Hildreth, Amer. Jour. Sci., Vol. XXIX., pp. 22, 37, 73, 76, 107;
L. Lesquereux, Geology of Pennsylvania, 1858, Vol. II., p. 840; F. Platt,
Sec. Geol. Surv. Penn., Rep. H, 1874, p. 23; A. Sherwood, ibid., Rep. G,

1878, pp. 21, 38-40; I. C. White, ibid., Rep. Q, 1878, p. 203; Rep. Qz, 1879, p.
137; U. S> Geog. Surv. W. of 100th Mer., Vol. III., Supp. 1881, p. 196.

470 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

probably an Allegheny sandstone on the same river, was not less
than 50 feet long. Asa rule, the fragments mentioned by observers
are much smaller, rarely exceeding 7 or 8 feet; they are broken at
the ends, without trace of root or branch; some appear to have
retained their bark when entombed, but, in a great proportion of
the instances, the rock contains indeterminate casts of the stem
with scattered impressions of the bark. The battered fragments
are unquestionably those of floating wood which had long endured
exposure, while those which show no injury, aside from loss of
roots and branches, were probably prostrate stems carried from a
flooded plain. There seems to be no general distribution of stems
in any sandstone; in each case the occurrence is noted by the ob-
server as an interesting local phenomenon. If the materials had
been carried out to a great ‘basin, where the plant remains could
float until water-logged, there would have been a general distribu-
tion over a wide area, such as that described by A. Agassiz as
existing off the coast of Lower California and in the Caribbean;
but the condition is wholly different in the Coal Measures sand-
stones and bears close resemblance to that observed in the rivers of
this day, where logs and undermined trees are stranded on the
banks or on gravelly islands to be attacked by successive floods and,
after removal of the fragile portions, to be buried in the accumulat-
ing deposits.

The less injured fragments, retaining the bark, differ” much
from those found in coal beds in that commonly they are but
slightly deformed by pressure—and this in spite of the fact that
ordinarily they are merely casts surrounded by brilliant coal from
the bark. Prostrate trunks in coal beds are flattened, while stumps
in the coal retain the wood, converted into mineral charcoal and
surrounded by the brilliant coal. It may be that the uncompressed
stems were those thrown upon sandy bars to decay slowly and to
have the interior replaced with sand, while the battered fragments
may have remained long above reach of ordinary floods, to be
swept away only after loss of the interior. But in any event, one
must recognize that the small quantity of the wood found in sand-
stones is a very important matter; the sandstones and con-

Se ETL Te ae mT PIR mv 8 TF ia Aaah an all lie - SSW Sg ES
,

1912} STEVENSON—THE FORMATION OF COAL BEDS. 471

glomerates mark times when activity of denuding agencies was
greatly increased, when the destructive effect of floods upon vegeta-
tion ought to be most marked.

Surface features of sandstones received little attention from
earlier observers in the Appalachian basin. Ripple marks, sun
cracks and rain prints seem to have been regarded as mere common-
places and the recorded observations are merely incidental. Ob-
servers in recent years have recognized the importance of these
surface markings.

The ripple or wave marks on some Silurian sandstones attracted
attention long ago, as they are exposed in broad spaces and, for the
same reason, occasional references are to be found to similar mark-
ings on some Devonian beds. The earliest note respecting their oc-
currence in Carboniferous rocks in that by Rogers,** who says of the
sandstones of Formation X that “beautiful ripple markings are
often met with on the surface of the large slabs of the finer of
these sandstones.” This formation is equivalent to the Upper
Pocono of Pennsylvania; and the observation is important because
it was made in the area where the earliest coal beds were formed.
The rocks are in the lowest division of the Mississippian or Lower
Carboniferous.

H. D. Rogers, J. P. Lesley, B. Halberstadt and G. P. Grimsley
have recorded observations of wave marks and mud cracks in the
Mauch Chunk of Pennsylvania and West Virginia; and J. Barrell
has discussed their importance in a memoir to which reference will
be made on another page.

Scattered observations show that such surface markings are
of common occurrence in Pottsville rocks.** Smith obtained a fine
slab of sun-cracked sandstone of New River age near Huntsville,
Alabama; Ashley reports sun cracks in New River sandstones of

“W. B. Rogers, “Report of the Geological Survey of the State of
Virginia for 1837,” reprint, Boston, 1884, p. 183.

*E. A. Smith, letter of December 23, 1911; G. H. Ashley, letter of
October 24, 1911; J. W. Foster, cited by J. P. Lesley in “ Manual of Coal and
its Topography,” Philadelphia, 1856, p. 105; I. C. White, Sec. Geol. Surv.

Penn., Rep. Q3, 1880, pp. 194, 195.
PROC. AMER. PHIL. SOC,, LI, 207 D, PRINTED DEC. 14, IQI2.

472 STEVENSON—THE FORMATION OF COAL BEDS. [UNov.1,

Cumberland and Rhea counties, Tennessee, the former being on the
western, the latter on the eastern outcrop; Foster described a coarse
sandstone on Licking River, Ohio, with ripple marks and indistinct
fucoids, the latter being most probably casts of sun cracks. White
reports the flags at a quarry in Mercer county of Pennsylvania as
showing both ripple marks and rain prints. .
The writer finds no record of ripple marks or sun cracks on
sandstones of the Allegheny. Several correspondents assert that
they have seen them frequently but cannot remember the localities
as no entries were made in the note books. Condit*® observed
excellent examples in the Conemaugh of Ohio at 15 feet below the
Pittsburgh coal bed and at 60 feet below the Ames limestone.
Stevenson saw in Fayette county of Pennsylvania a Conemaugh
sandstone of which the layers, exposed in a quarry, are covered with
irregular ripple marks, closely resembling those made by winds on
dunes or sand plains. A laminated sandstone at 57 feet below the
Pittsburgh coal, in Allegheny county, is ripple marked on many
of the surfaces. In Fayette county, the shales overlying the Pitts-
burgh coal frequently contain thin layers of ripple marked sand-
stone and in Greene county the Pittsburgh sandstone shows the
irregular trails known as Spirophyton. In Fayette and Westmore-
land counties, ripple-marked surfaces characterize the Waynes-
burg sandstone at the base of the Washington formation. The
uniform testimony of those who have studied the Appalachian basin
is that ripple marks and sun cracks are familiar phenomena in the
Coal Measures sandstones or in the clayey films separating the
layers.
Footprints in sandstone have been reported from but one locality.
King long ago announced the discovery and the occurrence was
confirmed sometime later when he and Lyell®® studied the rock
together. The quarry in a Conemaugh sandstone was about 5 miles
southeast from Greensburg, Westmoreland county, Pennsylvania.
“D. D. Condit, letter of February 14, 1912; J. J. Stevenson, Sec. Geol.
Surv. Penn., Rep. K, 1876, pp. 99,.200, 208, 309; Rep. KK, 1877, pp. 31, 208.
°C. Lyell, “On Footmarks Discovered in the Coal Measures of Penn-

sylvania,” Quart. Journ. Geol. Soc., Vol. I1., 1846, pp. 417-420; Vol. VII.,
1851, p. 244.

1912} STEVENSON—THE FORMATION OF COAL BEDS. 473

The sandstone, in thin flags used for paving, is divided by lamine
of unctuous clay, which received and retained the impressions.
Twenty-three footprints were obtained, all of them on the under
surface of slabs, casts in relief of impressions made upon the clay.
There were also casts of shrinkage cracks in the clay, made after
the footprints were formed. Rain prints were observed on the
slabs which Lyell took to England.
The sandstones in other coal fields have similar markings;
» Ashley has described ripple-marked sandstones in Indiana and J. A.
) __Udden has found them in Illinois. Dawson,** who recognized the
__ importance of recording all observations, has noted the occurrence
of ripple and rain marks as well as of footprints at many localities
within the Acadian areas. A sandstone in South Joggins shows
distinct rain and footprints; on the shore of Northumberland
strait, where the strike coincides with direction of the shore, great
surfaces are exposed with ripple marks and worm trails. In 1842,
he found, near Tatamagouche, footprints on a rippled surface and
in 1843 he discovered two other series of prints, one of which was
somewhat defaced by rain marks. Many beds within this region
___ have ripples, rain marks, worm trails and sun cracks in clay lamin
_ within the sandstones. Lyell summarized the information respect-
a ing them. Hull has recorded similar conditions in Lancashire of
England and Miller has described the footprints at Dalkeith in
- Scotland.*? Similar markings are reported from almost all the
_ large coal areas, and they are characteristic of sandstones contain-
ing laminz of clay on which the markings were impressed.

Z
F
4
5
ef
<
&
i

a han Fi ll

Many authors have noted the “ Vegetable soils” or “ Ancient
soils” observed in sandstone. These may be marked by local
_ deposits of coal or by erect trees in situ, with or without traces
_ of coal around the roots.

= J. W. Dawson, “ Acadian Geology,” 2d ed., 1868, pp. 167, 215, 217, 325,
_ 328, 355, 357, 410; Supplement, 1878, pp. 62, 64.

: *C. Lyell, “On Fossil Rainmarks of the Recent, Triassic and Carbon-
iferous Periods,” Quart. Journ. Geol. Soc., Vol. VII., p. 244; E. Hull,
_ “Geology of the Country around Wigan,” 2d ed., Mem. Geol. Surv. Great
_ Britain, 1862, pp. 9, Io.

474 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

The official reports note the not infrequent occurrence of coal
patches in sandstone, some of them only a yard but others several
rods long and wide. Without doubt, not a few of these are merely
blocks of vegetable matter removed by sand-laden streams during
change of channel-way; but others, such as that described by I. C.
White,®* are unquestionably in situ. In this case, the deposit is of
impure cannel, 5 feet thick where opened, but disappearing in all
directions within a few rods. It evidently marks the site of a

shallow pond on the sandy surface, which was ‘filled with sapropel

material. It is probable that a similar explanation applies in many
other cases, as impure cannel is the usual material.

Not many references to erect trees in sandstone are to be found
in reports on the Appalachian basin; such trees, for the most
part, are rooted in shales. Lesquereux®* has mentioned the occur-
rence of a forest of Sigillaria and Calamites in sandstone over the
great coal bed at Carbondale in the Northern Anthracite field. This
seems to be the only recorded instance where the relations are
clear; but Dawson®® observed several ancient soils in sandstone.
His Division II., 650 feet thick, has two old soils with erect trees;
Division III., 2,134 feet thick, has many with erect trees, the old
soils being in most cases very thin shale enclosed in sandstone. At
one locality this thin shale bears erect Calamites and shows rain
prints as well as footprints of batrachians ; another, somewhat lower,
with erect stems, has yielded several species of batrachians as well
as remains of insects and land mollusks; at another, the sandstone
cliff shows trees as pillars of sandstone and with them are as-
sociated Calamites, all vertical to the bed, which is inclined at 19
degrees. Here the sandy flat, supporting the trees, was inundated
and covered with sand; in time, the trunks rotted and were broken
off to be covered by the increasing deposit, which filled the interior
of the decaying stem. At another horizon, one stem rises 4 feet
and is surrounded by sandstone and the succeeding shale, but another

reaches only to the top of the sandstone. On this sandstone there

*T. C. White, Sec. Geol. Surv. Penn., Rep. Q, 1878, p. 202.
*L. Lesquereux, “Geology of Pennsylvania,’ 1858, Vol. II., p. 840.
‘ ® J. W. Dawson, “ Acadian Geology,” pp. 156-178.

1912.1 STEVENSON—THE FORMATION OF COAL BEDS. 475

grew a forest of Calamites, which, in their turn, were surrounded
by the mud, which reaches to the top of the larger Sigillaria. This
growth of Calamites on sand, which had buried the Sigillaria,
4 recalls the conditions at Topeka, Kansas, already described, where
7 during a great flood the young trees of a large nursery were buried
, by sand, on which a dense growth of cottonwoods developed within

a few weeks. The conditions recall also those described by Russell

on the Yahtse River in Alaska. The trees were killed, not broken
; by the mass of gravels; the trunks decayed, some were broken off
___ by the wind and the stumps were buried under new material brought
down by the river, but others remained, at the time of Russell’s
examination, projecting many feet above the surface.

Tf i tl ee

The evidence all points in one direction. The buried channel-
ways, the cross-bedding reported at many localities and the rounded
pebbles indicate river not shore deposit. Plants buried in situ by
inundation, the ripple-marked and sun-cracked surfaces, the rain
prints, the footprints of batrachians, the pool-like accumulations of
vegetable matter, the absence of marine fossils and the distribu-

tion of the coarser materials make up, altogether, a mass of evi-
~ dence which it is difficult if not impossible to controvert. The sand-
___ stones were great flats, subject to inundation by the rivers to which
they owed their origin. There appears to be no evidence to support
the supposition that they are either shore or deepwater deposits.

The Shales—Coal Measures shales vary in structure from
merely compacted muds to finely or coarsely laminated beds; in
composition from fine clay to sand or impure limestone; in color
from almost white to black, the latter often passing to cannel or
even to ordinary coal. Thick deposits of shale frequently hold
lenses of sandstone and similar lenses of shale occur in sandstone.
Some shales are rich in remains of a marine, a brackish water or
of a freshwater fauna; others are crowded with impressions of land
plants, retaining the most delicate markings of all parts; others
have only indistinct plant remains, with which a marine fauna some-
times occurs; others still, of notable thickness and area, have rare
and mostly obscure traces of either vegetable or animal life.

476 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

- Sandstone predominates in the Pottsville but in later formations
shale is a characteristic feature. This is true of the anthracite area
almost equally with the bituminous region, as appears from the
sections and drill-hole records published by the Pennsylvania
‘survey.°®

The anthracite region, including the broad eroded spaces be-
tween the coal fields, is about 70 by 100 miles, but the coal area,
which has escaped erosion, is considerably less than 500 square miles.
The Pottsville deposits are almost wholly sandstones or conglomer-
ates except locally in the Eastern Middle, where the Beaver shows
here and there thick beds of shale, 22 to 42 feet thick. Conditions
changed gradually after the beginning of the Athens, so that above
the Mammoth coal bed, identifiable with comparative certainty
throughout much of the area, one finds abundance of shale. At the
northeast in the Southern field, one section has 194 feet of shale
in a total of 218; another has one bed, 64 feet, and three thinner
beds in 257 feet; midway in the field, some sections show nearly one
half shale in 900 feet above the Mammoth. There is much varia-
tion in thickness and in position of the shale beds and none is
persistent in all the sections. In the Western Middle, the thickest
bed at the easterly end is but 40 feet, but farther west are beds of
45 to 107 feet with others of less thickness, while at the western
end shale and sandstone are often in equal thickness. The propor-
tion of fine shale above the Mammoth is as large as in most of
the bituminous region and some of the beds are thicker than any
there outside of the central space in West Virginia. Farther south —
along the eastern border in Alabama, where only the Pottsville
remains and the conglomerates are thick and coarse, one finds great —
beds of finer materials, though argillaceous shale seems to be com- _
paratively unimportant.

Sandy shales are closely related in distribution to a sand
stones; black or carbonaceous shales will be considerd in connection

*° The survey of the anthracite fields was planned by C. A. Ashburner

‘and was executed under his direction. His death occurred after comple-
tion of the work but before preparation of the report. Discussion of the

results was assigned to A. D. W. Smith and it is given in Vol. III. of the”
Final Report.

Navi its rome

1912] STEVENSON-—THE FORMATION OF COAL BEDS. 477

with coal beds; it is necessary here to study in detail only the red
shales and to note a few matters concerning shale deposits generally.
The Red Shales.—The red and green muds and laminated sand-
stones of the Catskill pass gradually into the early Carboniferous
in a great area within Pennsylvania and Virginia. In like manner,
the red shales of the Upper Mississippian pass into the Pottsville
through a transition series of sandstones, conglomerates and red to
green shale beds, this feature being especially characteristic in the
southern anthracite field, where the column is complete. The reds
and greens of the Catskill mark a condition, which originated in
southeastern New York during the Middle Devonian and spread
slowly west and southwest, reaching southwestern Pennsylvania late
in the Chemung, the last great division of the Devonian. The con-
dition, whatever its cause may have been, appears to have been with-
out relation to the character of the water; the fauna in the northern
portion of the area is freshwater, but in southwestern Virginia,**
very near the termination of the red deposits, Spirifer disjunctus
and some other forms were obtained at the top of the formation,
showing that marine conditions reached as far northward as New
River and that they were not inconsistent with the deposition of red
beds. The Mauch Chunk or Upper Mississippian red beds seem to
have yielded no marine forms in eastern Pennsylvania, but in south-
ern Pennsylvania and southward, the middle and lower portions are
gradually replaced with the Maxville limestone, which is marine,
while in western Pennsylvania the upper portion or Shenango shale
has yielded marine forms in Crawford, Mercer and Fayette coun-
ties.** The fossils are large and they did not live amid unfavorable
conditions. The shales are red in Fayette county, so that again it is
evident that influx of salt water did not prevent formation of red
beds. The Pennsylvanian red shales have neither the constancy nor
the extent of those in the Catskill and Mauch Chunk, but they resem-
ble the former in that the conditions favoring their formation existed
at first in a small area, whence they gradually spread; they differ
* J. J. Stevenson, “ The Chemung and Catskill on the Eastern Side of
the Appalachian Basin,” Proc. A. A. A. S., Vol. XL., 1891, separate, p. 7.

*T. C. White, Sec. Geol. Surv. Penn., Rep. Q4, 1881, p. 77; J. J. Steven-
son, ibid., Rep. KKK, 1878, p. 308.

478 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

in that after a maximum area was reached, the conditions ceased
to be general, became more or less localized and the deposits were
isolated, at times widely separated.

The earliest appearance of the Pennsylvanian reds is in the New
River of northwestern Georgia, where two beds, 11 and 35 feet, were
found, with 103 feet of variegated shale intervening.*® No reds are
reported from the Pottsville of the anthracite region and they are rare
in the Allegheny, occurring only in the lower part of that formation.
A bed, 32 feet thick, was found near Drifton in the Eastern Middle
at 30 feet below the Buck Mountain coal bed and, near Harleigh, a
thin bed underlies that coal. In the northern part of the field, a soft
red sandstone is at a few feet below the Mammoth and near Har-
leigh a thin bed of red sandstone overlies the Buck Mountain; at a
few miles west, in the Western Middle, some thin streaks of red
shale exist between the Buck Mountain and the Mammoth. These
are all within a narrow north and south space and must have been
brought down from the Alleghania slope.

Red shale first appears in the bituminous region during the latter
part of the Allegheny. The most southerly locality is in Boyd county
of Kentucky, where 18 feet of green and red shale were seen near
the top of the formation. The deposit is altogether local, for meas- |
ured sections and well records in adjoining counties of Ohio and
West Virginia show no trace of red at this horizon. The nearest
. notable deposit is more than 80 miles distant toward the northeast in
Washington county of Ohio, where 64 feet of red shale begins at
503 feet below the assumed place of the Pittsburgh coal bed and so
extends downward to the middle of the Allegheny. There, one has
reached what may be termed the Central area, in which red shales
are a striking feature from the middle of the Allegheny to the close
of the Pennsylvanian. This area embraces contiguous portions of
Washington county of Ohio, Wood, Ritchie, Wirt, Calhoun, Roane,
Jackson, Gilmer and Clay counties of West Virginia, in all not far
from 3,500 square miles. Red shale in the Allegheny is reported
here and there from other counties but in each case the deposit is
insignificant.

° J. W. Spencer, “The Paleozoic Group,” Geol. Surv. Georgia, 1893, i.
p. 139.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 479

At the beginning of the Conemaugh, one finds on the eastern
and northern parts of the bituminous region an important sandstone,
which becomes unimportant on the western outcrop in Ohio. In

___ several counties within the Central area, its place is occupied by red
4 shale. The same material occurs in occasional borings farther north
_ near the Pennsylvania line and thin streaks are reported in a few
3 wells north from that line; but these occurrences seem to be isolated.
' As one rises in the Conemaugh, he finds the areas increasing, for
widely extended deposits appear below the Cambridge, the first per-
sistent limestone of the Conemaugh. At this horizon the reds,
_ though variable, are thick in some portions of the Central area and
; q very irregular in others; but conditions favoring deposition of reds
existed at many localities, somewhat widely separated; such deposits
are reported from the Central area; from Ohio at 100 miles toward
the west ; from the northern counties of West Virginia; from several
counties in southwestern Pennsylvania as well as from Webster
_ county of West Virginia on the eastern outcrop. Away from the
_ Central area, most of the deposits are thin, apparently of small area;
_ their interrelations cannot be ascertained but there is no doubt that
_ many of them were wholly isolated. They suffice to show that,
_ prior to the formation of the marine Cambridge limestone, conditions
' favorable to deposition of red shales existed at very many localities
_ within an area of not less than 10,000 square miles.
4 The Pittsburgh reds of I. C. White underlie the Ames Siaceuins:
_ which carries a marine fauna and is midway in the Conemaugh. This
_ interval between the two marine limestones is marked by the greatest
expansion of reds within the Appalachian basin. No trace of the
deposit is seen on the eastern side of the bituminous region except
in a small space within western Maryland and the adjacent part of
Pennsylvania. Aside from that locality it seems to be absent along
the eastern outcrop in Pennsylvania and West Virginia as well as
along the western outcrop in Ohio. But in the interior portion of
the bituminous region the Pittsburgh reds are present from Boyd
county of Kentucky to the northern outcrop, a distance of 275 miles,
and the width at times is 80 miles, giving an area of certainly not
less than 17,000 square miles. The thickness varies; it becomes
almost 250 feet in some localities, when the mass is continuous below

maaece™ ia ia

Pere nk ie

480 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

with that under the Cambridge limestone and at others where it is
continuous with that above the Ames; but it is notable throughout
its whole extent; even at the northern border, where no other reds
are found in the Conemaugh, the Pittsburgh reds are from 30 to 50
feet thick. At the same time, it must be noted that this, like those
which precede and those which follow, is in no sense a uniform
deposit; the variations in thickness and character are greater than
those of the sandstones and are marked by extreme irregularity.
Making all allowance for defective methods of keeping the records
of borings, one must recognize that a mass of red shale, 50 feet
thick in one well, may be replaced, even in the Central area, with
sandstone in another well only 200 feet away; that red shales alter-
nate vertically with light gray, blue or almost white shales as well
as with gray white or bluish sandstones ; comparison of well records,
preserved and collated by I. C. White in the West Virginia reports,
leaves no room for doubt that red shales are often continuous later-
ally with light colored shales and sandstones, and that the transition q
may take place within a few rods. But in the upper portion, the
Pittsburgh reds are as nearly continuous throughout the whole area
as is any other deposit in the series. q

The Washington reds, the “ Big reds” of the drillers, follow the q
Ames limestone and, where that rock is absent, are often continuous a
with the lower deposit. This mass spreads with considerable thik? 7
ness into counties adjoining the Central area but it underlies not —
much more than 4,000 square miles and is absent at many places —
even within the main red area. It seems to be wanting in most of.
Ohio, but a thickness of 60 feet is reported in Muskingum count
at 50 miles from a locality on the Ohio River, where it is said to be
100 feet thick, no reds having been observed in the intervening space.
It occurs as red shale occasionally in northern West Virginia but
seems to be wanting in Pennsylvania, though its place is marked
the fine-grained Birmingham shale of that state. Its variations lat
ally and vertically are wholly like those of the Pittsburgh. The area
of red shows more notable contraction in the upper part of the Cone- —
maugh, but, locally, the reds were deposited in an area almost as —
great as that of the Pittsburgh. Thick deposits are reported fr
some counties within the Central area. and none whatever from

a, ee ae

Ne

=

a
q
4
oi

a RENT SN NE So eo - —_ — - a -
e 7 si a ete Jee ae PAP eee ial api She Aas waaay
bs ah lal al ee Ee eR ee ee
ee ee et eee One ee me ae eae ee Soin
saad ei uses Fab Soe hake os 3 pail. 3 eh 7

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 481

others; isolated deposits are reported from 9 counties of Pennsyl-
vania and from 6 in Ohio but there seems to be very little in the
greater part of West Virginia. The total area of the reds during the
later Conemaugh at any one time was less than 1,000 square miles
and the deposits are widely separated. At the same time, one must
note carefully that, while the deposits are usually of small superficial
extent, yet the thickness of some is important.

‘The conditions during the Monongahela were much like those
at the end of the Conemaugh but the area in which deposits were
made is much less. No red is reported from Pennsylvania except
a thin streak at one locality, nor is there any in the West Virginia
panhandle. There is none in Ohio except near the Ohio River toward
the Central area. But, as one approaches that area, the red increases
and some of the beds are important. In West Virginia, there seems
to be very little along the eastern side north from the Kanawha
River and in the interior the occurrences are few and irregular until
one comes to the Central area, where beds are many but more irreg-
ular than at any time during the Conemaugh. In Ritchie county,
every foot of the section for 300 feet above the Pittsburgh coal bed
is marked by red shale in some well or another; but that statement
tells little respecting the conditions. The beds vary from 7 to 110
feet as measured in different records; in some borings, one finds
220 feet of red in a vertical distance of 300 feet, while in others
near by the total is less than 100 feet. Similar variations are found
in other counties but the maximum thickness is less. Aside from the
insignificant and distant patches in Pennsylvania and Ohio, the area
in which reds were deposited at various times during the Mononga-
hela is less than 4,000 square miles and no deposit has great super-

ficial extent.

During the Washington, local conditions favoring deposition of
reds existed here and there in a much greater area; but the condi-
tions were local. Reds are reported from three localities in Wash-
ington and two in Greene county of Pennsylvania; from six in Ohio;
from a number of places in northern West Virginia; but these are
all far apart and the most of them are insignificant. Only when one
reaches the Central area does he find the deposits assuming impor-
tance. Even there the occurrence is indefinite; a boring in Wood

482 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

county, West Virginia, passed through two beds, 100 and 60 feet
thick, but in another well, only a short distance away, the same inter-
vals show 60 and 20 feet of red. Greater contrasts appear elsewhere,
for thick deposits of red in one well are replaced with sandstone in
another, less than one eighth of a mile distant.

The story is the same for the Greene. In southwestern Penn-
sylvania deposits, 50 to 90 feet thick, were seen, but they are local,
being absent in sections four or five miles away. There are certainly
some reds in the formation within the West Virginia panhandle, but
the exposures do not admit of measurement. Some important
deposits are reported farther south along the Ohio River but for the
most part little information exists respecting them. The Greene
formation in West Virginia contains nothing of economic worth and,
‘with the exception of one persistent limestone, there are no definite
horizons. There’seems to be only a monotonous succession of shales
and soft sandstones, all ill-exposed. But, in riding across the Central
area, one recognizes at once that red shale forms no insignificant
portion of the mass, though the imperfect exposures suggest that the
deposits must be lenticular like those in the earlier formations.

Red shales are found in other coal basins and in later formations.
Dawson® found them abundant in all divisions of the Coal Measures
from the Millstone grit to the top and with the same features as in
the Pennsylvanian of the Appalachian basin; gray and red shales
alternate vertically and at times are continuous laterally. Conditions
are the same in later times; lenticular deposits of red clays occur in
the glacial till of Canada and of Scotland. The great Pampean for-
mation as originally described by Darwin* would seem to be a con-
tinuous deposit of reds covering an area almost equal to that of
France; but it varies in composition as reds do elsewhere, for records
of borings near Buenos Ayres show that the section consists of sand,
clay and green shale. Church, to. whose studies reference will be
made on a later page, found that a vast area of the Plata region is
covered with reddish-yellow, semiplastic argillaceous earth, contain-

*® J. W. Dawson, “ Acadian Geology,” pp. 156-176. a

* C. Darwin, “ Journal of Researches,” New York, 1846, Vol. L., pp. 161,

164, 165; “Thickness of the Pampean Formation near Buenos Ayres,”
Quart. Journ. Geol. Soc., Vol. XIX., 1863, pp. 68-70.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 483

; 2 ing at times, calcareous nodules. The deposit is without pebbles and
becomes increasingly sandy toward the west. The Pampean forma-
tion resembles the Pittsburgh reds. Gruner** has observed that in
the Loire basin, red beds are not uncommon in the sterile stage of
Saint-Chamond. The deposits are found at all horizons in this for-
mation which is from 650 to 2,600 feet thick and is the middle divi-
sion of the Loire Coal Measures. In the Lancashire field of England
the reds appear to be confined to the upper Coal Measures.

Dawson found abundance of ripple marks, rain and footprints in
the Acadian red shales but no record of such markings on the Penn-
sylvanian reds has come to the writer’s notice. Fossil remains,
vegetable or animal, are rare, but Raymond*® discovered feptilian
bones in a small basin eroded in the sandstone on which the Pitts-
burgh red shales rest.- Not infrequently the red muds contain nodules
of ferruginous limestone in which are marine fossils; these abound
in the Pittsburgh reds and cause much annoyance to drillers of oil
wells. At one locality in West Virginia on the east side, the Pitts-
burgh reds are replaced with a succession of variegated shales which
are exceedingly rich in marine forms, several of which pass upward
into the Ames limestone; and the shales are similar at 25 miles
southwest. The Pittsburgh reds, at least in part, were deposited
where salt water had access. There is much to suggest similar
origin for some other reds. Those below the Cambridge pass upward
to that limestone as the Pittsburgh reds pass to the Ames. In con-
siderable areas they replace the limestones and the two deposits are
continuous with each other or even with the Washington reds above.
The limestones are wedges in the shale as the Maxville becomes a
wedge in the Mauch Chunk shales within southern Pennsylvania.
The Washington reds are equivalent in position to the Birmingham
shales at Pittsburgh, which Raymond, in the publication cited above,
has shown to be marine. It is certain that marine conditions are in no
wise antagonistic to deposition of red shale. At the same time, one
must not forget that the conditions must have been very different

“L. Gruner, “ Bassin houiller de la Loire,” Paris, 1882, p. 217.

“Pp. E. Raymond, “A Preliminary List of the Fauna of the Allegheny ~

and Conemaugh Series in Western Pennsylvania,” Topog. and Geol. Surv.
{of Penn), 1911, p. 80.

|

484 STEVENSON—THE FORMATION OF COAL BEDS, (Nev. 1,

for isolated deposits, which are numerous and often thick. These,
in many cases, were far away from any marine invasion, in regions
of coal beds and freshwater limestones. Within the Central area,
there is almost total absence of limestone, the coal beds are indefinite
and most of those which are recognized on the borders are wholly
wanting.

The origin of the red color in shales and sandstones has been
sought by many students. Crosby** has shown that in the northern
United States and Canada the soils are rarely red except when de-
rived from a red rock; but southward from latitude 39° redness
increases until, in the West Indies and South America, it becomes
intense. The color is not due to the rocks, for the red deposit at
the south rests on primary rocks not differing from those at the
north where no red is found. He thought that the contrast is due,
very probably, to climate, the dehydration of ferric hydrate and con-
sequent change of color being caused by solar heat. In a later paper,
he says that six years of additional study had led him to assign
less importance to solar heat as the converting agent, but he still
recognizes it as one of the important agents. Many illustrations
are given, which certainly appear to go far toward fortifying his
position.

Russell® took up the subject at a somewhat later date and reathee
conclusions differing from those of Crosby. The depth to which
decay of rocks extends in the Appalachian region increases south-
wardly, becoming 100 feet in large areas, and he cites Belt as report-
ing that, in Nicaragua, the depth at times is 200 feet. In the great
limestone valley, south from James River in Virginia, the clay re-
maining after solution of the limestone is red and sometimes 50 feet
thick. He objects to the conclusion that climate or solar heat caused
the red color, because in summer the soil is heated as strongly in —
the northern as in the southern states. The red beds of the Rocky

*W. O. Crosby, “Colors of Soils,” Proc. Bost. Soc. Nat. Hist., Vol.
XXIII., 1885, pp. 219-222; “On the Contrast in Color of Soils of High and
Low Latitudes,” Amer. Geol., Vol. VIII., 1801, pp. 78-82.

*®T. C. Russell, “ Sub-aerial Decay of Rocks,” U. S. Geol. Surv. _
No. 52, 1889. }

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 485

_ Mountains could not have become red by exposure during deposition,
_ for the playa beds in Nevada and similar regions are creamy white,
_ though the summer temperature reaches 110° to 120° in the shade.
The red color was acquired during decomposition of the rock and
consequent incrustation of the grains. Richtofen has explained the
red of the Rothliegende by supposing that during the Carboniferous
there was deep decay of the rock and that this material became that
of the Rothliegende. Russell applies the same explanation to the
great red deposits of America, which he regards as formed of debris
from rocks long exposed to a warm moist atmosphere.

Beede’s® studies are in place here. It had been ascertained
that the light-colored sediments of Lower Permian in Kansas become
red in Oklahoma and the same condition was observed in going north-
ward into that state from Texas; in one instance a limestone was
traced into a sandstone. Beede, following the Kansas deposits into
Oklahoma, found that limestones became sandy in patches, which
increased until the limestone disappeared. Farther south the sand-
stone becomes deep red or brown with patches of white. The lime-
_ stone fauna reaches southward only a little way beyond the limit
_ of that rock. Shales become red much farther north than do the
sandstones and often have deeper color ; even the limestone, at times,
becomes reddened before disappearance. The sandstones vary much
_ in thickness at expense of the shales, but the thickening is irregular,

_ the rock is cross-bedded and often shows ripple marks. At their
southern limit, the shales and sandstones dovetail into Permian con-
_ glomerate on the Arbuckle and Wichita mountains, which is formed
4 largely of the limestone, at one time covering those mountains and
_ even now 8,000 to 10,000 feet thick on their flanks. These lime-
i 4 stones yield a residual red clay, while the disintegrating conglomerate
__ yields a red sandy clay resembling that of the red beds. It would
appear that the lower red beds of Oklahoma were derived from the
Arbuckle-Wichita land mass and that the coloring matter is due
chiefly to solution of limestones known to have been removed from
the area. Beede concludes that the deposits, which are void of fossils

yee ONE ef)

nem

A RL TT IE AAR WE ist RNR + + . gh anf
Ente on ies A a arth i ae a al ome are ier Ne ER De Reka et OLE
NET i i a herd eo aL : : a Saba i les Me ears a

“J. W. Beede, “Origin of the Sediments and Coloring Matter of the
Red Beds of Oklahoma,” Science, N. S., Vol. XXXV., 1912, pp. 348-350.

486 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

and even of carbonaceous matter, were made in very shallow turbu-
lent water or on vast tidal beaches.

Dannenberg,” discussing the importance of red beds, refers to
activities of changing climatic conditions as perhaps a notable agent
in bringing about the contrast between the productive and the barren
measures. In the productive measures, one finds constantly dark
gray to black as predominating colors, due to impregnation of the
whole mass with coaly substance, while the succeeding barren meas-
ures are recognizable by the red color. The Rothliegende, succeed-
ing the Carboniferous, owes the first half of its name to this
condition.. But the change in color begins before the close of the
Carboniferous, for the red appears as soon as conditions for coal-
making end—with the entrance of red, the formation of coal beds
ceases. In the Saarbruck region, reds occur in the Upper Carbon- |
iferous over the productive division. That a luxurious vegetation
existed during deposition of this unproductive red shale is proved
by the presence of great masses of vegetation in the Rothliegende,
such as the petrified forest at Radowenz in Bohemia. Evidently not _
failure of vegetation but changing climatic conditions, which were
unfavorable to the accumulation of plant remains, brought about the
new features. The formation of red rocks and weathered products —
is at present a peculiarity of the torrid zone, where one finds laterite,
terra rossa, etc., in which humus is unimportant. Dannenberg is
inclined to think that in the Carboniferous, there were moderate,
perhaps ocean climates contrasting with the succeeding hot climate
of the continental Rothliegende.

Barrell,°* who regards the Mauch Chunk (Upper Mississippian) _
red shales as, for by far the most part, of flood-plain origin, has Ss
published two important memoirs bearing upon the origin of the red
color. In the earlier memoir he shows that the Mauch Chunk con-
tains some impressions of plants but no trace of the carbon remains. —
The loss of carbon has not decolorized the shale, so that evidently

* A. Dannenberg, “Geologie der Steinkohlenlager,’ Berlin, 1910, pp é

30, 31. 35

* J. Barrell, “Origin and Significance of the Mauch Chunk Shale,’
Bull. Geol. Soc. Amer., Vol. 18, 1907, pp. 449-476; “Relations between —
Climate and Terrestrial Deposits,” Journ. of Geol., Vol. XVI., 1908, pp. I50- —

190, 255-205, 363-384.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 487

the oxidation was by free oxygen and not by that derived from ferric
oxide. The discussion in the later paper covers the whole question
and the author fortifies his position with the wealth of illustration
: that seems to leave little room for disputing his conclusions; but
___ the discussion is so elaborate that only the final statement can be

' given here and the reader must be referred to the memoir itself for

3 the detailed argument. The red color of ferruginous rocks as con-
4 trasted with the predominating yellows of alluvium is due to three
cooperating causes: Spontaneous dehydration, operating to some
extent at the surface in warmer regions; dehydration under great
pressure and moderate temperature, nearly universal in sediments
which become buried and consolidated; diffusion, operating under
conditions of warmth and moisture, whether these be at the surface
as in warm and humid regions or beneath the surface as may occur
in any portion of the earth. By these three means, the light-colored
yellow or brown muds and sands may become red shales and sand-
stones. The chief condition for formation of red shales and sand-
stones is merely the alternations of seasons of warmth and dryness
with seasons of floods.

Gruner and Dannenberg lay stress upon the fact that reds
occur in the sterile measures. Certainly the reds seem to have
been deposited under conditions which were unfavorable to the
accumulation of coal, for that is almost wanting in the central
area of West Virginia; great coal beds, traceable for hundreds or
even thousands of square miles, thin out to disappearance as they
approach that area. At the same time one must not forget that the
reds mark local, not general conditions; that they abound in the
productive as well as in the less productive portions of the column.
Within the Central area they are as important in the upper Alle-
gheny and in the Monongahela as in the Conemaugh and Wash-
ington. Even in the limited Loire basin the same is true, for the
reds there are practically confined to that portion of the Saint-
Chamond area, which is micaceous. Whether or not a similar rela-
tion exists in the Saarbruck area, the writer has not been able to
ascertain.

The distribution of Pennsylvanian red shales forbids the sup-

PROC. AMER. PHIL. SOC. LI. 207 E, PRINTED DEC. 16, I9I2.

488 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

position that they owe their red color to any widely-acting cause.
The especial localization of the deposits in the central part of the
area, the lateral passage into fine shales and sandstones of wholly
different color and the many isolated occurrences of small deposits
seem to exclude explanations based on supposed aridity or any other
general condition of climate. The shale, at times, contains small
areas of coal in distinct beds, and occasionally one finds coal at the
horizon of beds which are persistent around the borders. Where
the mass is interrupted by other deposits, which continue to within
the limits of the reds, a coal bed also at times continues from the
border, ‘though at the east only a few miles away it is wanting as
the red is continuous vertically. It is certain that occasionally the
conditions, favoring accumulation of coal, existed for considerable
periods within the Central area of reds. No matter which
hypothesis respecting the formation of coal beds be accepted, the
condition of general aridity becomes inadmissible, because the exist-
ence of coal beds, great or small, is proof of humid atmosphere
and dense vegetation not far away. One finds a great mass of
reds at the Pittsburgh coal horizon at less than a score of miles
from localities where that bed is of workable thickness; and the
same statement is true respecting the Harlem and Anderson coal
beds. There is every reason to suppose that in a general way the
climate, in respect of rainfall, was very much as now; the direction
of the winds was the same and there is no reason to suppose that,
at any time during the Pennsylvanian, a mountain chain existed on
the west side of the Appalachian basin. Yet alternation of wet
and dry conditions, as suggested by Barrell, may have been prevalent,
though due only indirectly to atmospheric influence.

Topographic changes would seem to be the preferable explana-
tion for conditions in the Central area. The subsidence, convert-
ing that area into vast tidal flats, continued until, just prior to the
Ames limestone, the region subject to river and tidal overflow may
have embraced more than 20,000 square miles. It must be remem-
bered that in the vertical space occupied by the great reds of the
Conemaugh one finds the Cambridge and Ames limestones, both —
marine. The rivers during long periods of little change had ac-

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 489

quired low gradients and they carried little coarse material, which
was dropped on the border of the low area, while the streams,
- flowing sluggishly across the flats distributed the abundant fine
materials and, as they shifted their courses, sorted the stuff, giving
the lenses of clay and sand. The source of the red material is
to be sought at the west, for the reds are present mostly on the
west side of the bituminous region—even the great Pittsburgh reds
extend only a little way east from the middle line of that region.
During contraction of the area of deposition, the Mississippian
beds became exposed to erosion while the calcareous deposits of
the low-lying Cincinnatia had been converted by solution in their
exposed portions into red clays such as one sees in so much of the
Great Valley within Virginia and Pennsylvania. During deposition
of the Pittsburgh reds, residual soils of the northern land must
have been an additional source of supply. It seems wholly pref-
erable to regard the Pennsylvania reds as derived from reworking
of deposits already red. At the same time, one cannot suppose
that the local and widely separated patches in the Monongahela,
Washington and Greene were derived from a distant source. Prob-
ably they mark the sites of ponds into which the sluggish streams
carried muds due to decay of limestones and mingled with those
from the fine shale of the red region.

Surface Markings on Shales—There are no recorded observa-
tions of surface markings on Pennsylvanian red shales within the
Appalachian basin, though such markings are sufficiently abundant
in the Acadian region. But sun cracks and ripple marks are
common enough on shale beds of other types. Footprints were
found by Mason on slabs of slate from the roof of the Mammoth
coal bed. The surfaces show occasional ripple marks along with
the tracks of a four-footed animal arranged in regular sequence.
This appears to be the only case recorded within the Appalachian.
There is little reason to expect such discovery in the bituminous

“W. D. H. Mason, “On the Batrachian Foot-tracks from the Ellan-

gowan Shaft in Schuylkill Co., Penn.,”” Proc. Amer. Phil. Soc., Vol. 17,
1878, pp. 716-719.

490 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

region, where one has only natural exposures for study and the
shales are so easily disintegrated that only the basset is exposed.
Woodworth” studying the more or less indurated shales of the
Massachusetts region was led by discovery of rain prints to look
for batrachian footprints. The search was rewarded almost at
once by discovery of impressions belonging to two individuals.
Study of the prints convinced him that they were made under
slight cover of water. Many scratches were found on the shale
surface, resembling those made by the sharp toes of newts in
very shallow water.

In situ forests occur frequently in shale beds. Gresley” re-

ported that 7 erect trees were found in the roof of the Buck Moun-.

tain coal bed at Haven River colliery. He says that tree-stumps
with Stigmaria roots are of common occurrence in the roofs of
several anthracite beds. That of the Baltimore at Wilkesbarre
yielded one, 36 inches in diameter at a few feet above the roots.
Comparatively few instances of trees im situ have been recorded
in the coal fields of the United States and most of the notes, which
the writer has found, seem to have been made incidentally and
are without detail, as are most of those with reference to similar
occurrences in sandstones.‘? Long ago Owen" described a forest
discovered at 12 miles from New Harmony, Indiana. More than 20
fossil stumps had been found in excavating the site for a mill and
dam. He disinterred three with 5 to 7 main roots, which ramified
in the surrounding material. As these trees, trunks and roots were
in normal position, he believed that they had grown there and had

J. B. Woodworth, “ Vertebrate Footprints on Carboniferous Shales

of Plainville, Massachusetts,” Bull. Geol. Soc. Amer., Vol. 11, 1900, pp.
449-454.

™W. S. Gresley, “Seven fossil Tree Trunks, probably in situ, found
in Roof of a 12-feet seam of Anthracite in Schuylkill Co., Penn.,” Trans.
Manch. Geol. Soc., Vol. XXI., 1800, p. 70.

™ There is ample reason to expect that when D. White publishes the
results of his investigations, all grounds for this complaint will disappear.

*D. D. Owen, “On Fossil Palm Trees,’ Amer. Journ. Sci., Vol. XLV.,
1843, Dp. 336, 337.

a Ne
i aie Wola a

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 491

become submerged quietly. Lyell’* visited this locality at a later
> date when a quarry had been opened in the overlying sandstone.
| 4 He saw the trees in a clay shale underlying sandstone and 18 feet
above a coal bed. He, with Owen, dug the clay from about one of
the trees, which was 4 feet 8 inches high and with roots spreading
out as in the normal position. This and two other Sigillaria, close
by, were casts, the bark converted into coal but the interior filled
with mud. The roots were interlaced. A great number of such
trees had been removed in working the quarry. Udden™ notes
that a vertical stump resting on a coal bed was seen by him near
Peoria, Illinois, but he gives no details aside from the statement
that the stump is filled with sandy clay.

There is, however, no lack of information respecting other lands.
Dawson and R. Brown have recorded many instances in the Acadian
region ; in one case there are Sigillaria stumps with Stigmaria root-
lets descending among them from an overlying bed. Occasionally
an embryo coal bed existed in the old soil but in some cases there
is no trace of coal. The absence of vegetable matter around the
base of the stems is in no sense evidence that they are not in place,
for Tuomey, as cited on an earlier page, has shown that peat beds
raised above the level of water-supply, waste away by drying, the
removal being aided by the winds, which carry off the dust-like
material. The trees remain, rooted in the underlying soil. Many
other students of peat deposits have made the same observation in
later years. Gruner says that the lower forest of Treuil has the
roots spread out in the roof of the coal and that it is present except
where the roof has been washed away and replaced with sandstone.
Hawkshaw“ described the trees found at Dixon Fold near Man-
chester. Five of them, at nearly right angles to the stratification,
were embedded in a soft blue clay, and a thin coal bed on same

*C. Lyell, “A Second Visit to the United States of North America,”
2d ed., 1850, Vol. II., pp. 272, 273.

*J. A. Udden, “Geology and Mineral Resources of the Peoria Quad-
rangle,” U. S. Geol. Surv., Bull. No. 506, 1912, p. 37.

"J. Hawkshaw, “Descriptions of the Fossil Trees found in the Exca-
vations for the Manchester and Bolton Railway,” Trans. Geol. Soc., I1., Vol:
VI., 1842, pp. 173-175.

492 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

plane as the roots continues as far as the excavation extends. Lepi-
dostrobus variabilis occurs abundantly about the level of the roots,
more than a bushel of specimens having been obtained around the
trees. A coating of coal, one fourth to three fourths of an inch thick,
surrounded the trees, so tender that it flaked off and left the stems
decorticated; but some harder coal near the roots of one tree
showed the bark fluted longitudinally. The largest tree was 11
feet high, 15 feet in circumference at the base and 7 feet and a
half at the top. The next in size was 6 feet high, seven and a half
feet in circumference and less tapering; the others were shorter.
The roots could be followed only a short distance owing to the
character of the excavation. They are covered with a thin stratum

of coal, 8 to 10 inches thick, which Hawkshaw thinks probably —

represents the vegetable covering of the place on which the trees
stood.

Binney“ says that when erect trees were first found, an attempt
was made to refer them to accidents as snags; but discoveries by
Hawkshaw and Bowman, near Manchester, aided toward recogni-
tion of their growth in situ. During a recent examination of ex-
cavations for the Bury and Liverpool railway near Wigan, he had
discovered not merely a forest of erect Sigillaria, with roots just as
they had grown, but also many Calamites in similar state of preser-
vation. The excavation is about 25 feet deep and in a light gray,
silty clay very like that at St. Helens and Dukenfield, where the
earlier discoveries were made, and the deposit is between two coal
beds. In a distance of 50 yards, he found 30 upright trees and
some prostrate stems of Sigillaria. They were 2 to 3 feet in
diameter, 2 to 12 feet high and filled with silty clay, the bark having
been converted into brilliant coal, one fourth of an inch thick.
Many Calamites were seen among the trees, 4 to 5 feet high, one
to 5 inches in diameter, with a thin coaly crust and filled with the
silty clay. Each type occurred in all parts of the deposit from
top of the lower seam to bottom of the upper. During a second

7E,. W. Binney. “On Fossil Calamites found standing in an erect

Position in the Carboniferous Strata near Wigan, Lancashire,’ Lond., Edinb.
and Dubl. Phil. Mag., Vol. XXXI., 1847, pp. 259-266.

a Nae I tee

1912.1 STEVENSON—THE FORMATION OF COAL BEDS. 493

visit with Hooker, he discovered Calamites with rootlets from
joints along the stem. These he describes in detail.

Sorby™® relates that 8 large well preserved stumps had been
found at Wadsley, rooted in a clay-like shale; all of them Sigillaria
with Stigmaria roots. The tops are flat as though sawed off. The
largest stump is 5 feet 2 inches in diameter and a huge trunk is
prostrate alongside. In all, 10 stems were seen in a space of 40
or 50 yards and all are cut off at the overlying sandstone, with
which they are filled. Sorby was much interested by the discovery
that the roots are arranged as are those of trees in Great Britain
of to-day—they are almost horizontal on the west side but pressed
down on the east, showing that the prevailing winds were the
same as now. Platt*® described a tree rooted in an inferior fireclay
with the roots so arranged as to confirm Sorby’s conclusions re-
specting the direction of the winds. W. B. Dawkins, in comment-
ing upon the paper, stated that he had made examination of the
tree and that his conclusion was the same with that of Sorby and
Platt.

Adamson*® described a gigantic Sigillaria with 8 forked Stig-
maria roots attached. The area embraced in the ramification of the
roots is 826 square feet; it is difficult to conceive of removing this
mass by a landslide or on a level area so as to set it down with the
stem vertical and the roots outspread in normal position; and the
difficulty is increased by the presence of other trees near by. This
tree was figured in 1887 by Williamson*t who says that a larger
example was found near that described by Adamson, and that one
of the root divisions was traced 37 feet 4 inches to a sharp tip.

* H. C. Sorby, “On the Remains of a Fossil Forest in the Coal Meas-

ures of Wadsley, near Sheffield,’ Quart. Journ. Geol. Soc., Vol. XXXI.,
1875, pp. 458-460.

*S. S. Platt, “ Notes on a large Fossil Tree recently found in Shales of
the Coal Measures at Sparth Bottoms, Rochdale,” Trans. Manch. Geol. Soc.,
Vol. XXIII., 1895, pp. 65-69.

® S. B. Adamson, Rep. Brit. Assoc. Adv. Sci. for 1886, p. 628.

“W. C. Williamson, “A Monograph on the Morphology and Histology
of Stigmaria ficoides,’ Paleontograph. Soc., vol. for 1886, pp. 45, 46, 48, 51,
Sap OR

494 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

He states that 7 smaller but similar examples were found in
excavations for a street in Bradford.

Grand’Eury and Goeppert have described many occurrences
of in situ trees; and the former, in his memoir before the Geological
Congress at Paris, gave figures and descriptions of Calamites with
roots from the joints similar to those found by Sorby. Barrois*?
has reviewed the conditions in a keenly analytical memoir, referring
especially to conditions in the Nord basin. His discussion will
find place in another connection; it suffices here to note that he
has found erect trees only in deposits which have been laid down
in shallow water; they are wholly absent from deposits laid down
in water deep enough to float the trees.

Not a few writers insist that occurrences of this sort can be
explained readily by supposing them to be due to landslides or
deluge-like floods. It might suffice to say with Goeppert that the
explanation might answer if the instances were few, but that it does
not answer because the number of erect trees is so great. But the
proposed explanation is wholly unacceptable because the conditions
observed do not suggest either landslides or terrific floods.

The White Mountains of New Hampshire have long been cele-
brated for the extent of landslides. One is typical of all. Perkins**
described that which took place in the southern part of those moun-
tains after a prolonged heavy rain in October, 1869. The light-
colored streak marking its path was visible at a distance of 50 miles.
The whole mountain had been covered with a dense growth of
spruce. The slide began at 40 rods below the summit, 4,200 feet
above tide. It was barely one rod wide at the top and increased
little in the first 50 rods, where the slope is between 50 and 60

degrees; but, in the next 100 rods, the width increased rapidly to — 4

25 and 30 rods at 130 rods from the beginning; thence it decreased
to 17 at 166 rods. The whole length is nearly 240 rods and the
outline is fusiform. Three miles below the termination of the

°C, Barrois, “La répartition des arbres debout dans le terrain houiller de
Lens et de Lievan,” Ann. Soc. Geol. du Nord., Vol. XL., pp. 187-196.

%G. H. Perkins, “ Notice of a Recent Landslide on Mount Passacono-
way,’ Amer. Journ. Sci., I1., Vol. XLIX., 1870, pp. 158-161.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 495

slide, a level clearing through which Mad River flows, was covered
with great heaps of logs brought down by the slide and swept away
by the freshet attending it. They were broken and shattered,
though some were 60 feet long. They were piled up confusedly to
a height of 15 or 20 feet, stripped of foliage and most of the
smaller branches. Farther up the stream, no trees were visible;
they had been buried in the coarse debris of the slide.

The terrific discharge of Lake Mauvoisin has been cited as evi-
dence that blocks of the surface could be transported with standing
trees and be deposited in the normal position. Knowledge re-
specting this great debacle is derived from the description by Escher
von Linth, of which a synopsis was published in English.** The
Val de Bagnes is drained by the river Dranse, whose progress had
been impeded for several years prior to 1818 by blocks of ice and
by snow avalanches from the glacier of Getroz. At length the river
was dammed and a lake was formed, which became 10,000 to 12,000
feet long, 700 feet wide at top, 100 feet wide at bottom, with an
average depth of 200 feet. The content equalled at least 800,000,-
000 cubic feet. A gallery, 600 feet long, was cut to drain the lake,
but this enlarged quickly in the ice, so that before one half of the
water had passed off, the dam gave way and the mass of ice, water

and débris was precipitated into the valley below. The whole lake

was emptied in less than half an hour and the author well says that
one cannot describe the violence of the flood. The passage of the

___water was checked by a narrow gorge, where it tore away a bridge, .

90 feet above the preéxisting stream; beyond that, it entered a
wider part of the valley, only to be banked by another gorge beyond.
Thus passing from one basin to another, it acquired new violence
and carried along forests, rocks, houses, barns and the cultivated
surface. The flood seemed to contain more débris than water and
it moved at the rate of 18 feet per second. The acquisition of these
materials made the current more effective and, when it entered the
_ marrow valley leading from Saint Branchier to Martigny, it con-
“* Account of the Formation of Lake Mauvoisin by the Descent of a

Glacier and of the Inundations of the Val de Bagnes in 1595 and 1818,”
Edin. Phil. Journ., Vol. 1., 1819, pp. 187-191.

496 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

tinued its work of destruction until weakened by spreading over the
great plain of the Rhone valley. After ravaging Le Bourg and the
village of Martigny, it fell with comparative tranquillity into the
Rhone, “leaving behind it on the plain of Martigny the wreck of
houses and furniture, thousands of trees torn up by the roots and
the bodies of men and animals, which it had swept away.”
Neither landslide nor vast flood can be invoked for explanation
of phenomena such as those described by Adamson, Potonié and
Binney. It is incredible that the work of such destructive agents
would leave no record except a group of trees resting normally with
the roots of one interlaced with the roots of the others. There is
no trace of disturbance at any locality mentioned by the observers
named or by any others; yet the discoveries by Binney, Hawkshaw,
Bowman and Platt are in the same small area, each covers a con-
siderable space and everywhere there is evidence of wholly undis-
turbed deposition. The evidence that the trees are in situ is as
strong as it is for Russell’s gravel buried forest in Alaska or for
the sea-covered forests on the shores of the Baltic and Britain.
The trees in situ, the ripple marks, rain and footprints, the evi-
dence of selective action by streams, all go to show that shales were
deposited in, at most, shallow water and that great areas of the
Appalachian basin, like other regions in which shales occur, were
above the area of deposition for prolonged periods.

The Limestones and the Marine Deposits—Four limestones,
with marine fauna, have been discovered in the Warrior coal field
of Alabama, all, except possibly the highest, in the New River;
Safford discovered a “local bed” of hard crinoidal limestone in his
Upper Conglomerate within Grundy county of Tennessee, also New
River; M. R. Campbell found a marine fauna in southern West
Virginia within the New River and D. White* obtained Spirorbis
and Naiadites in the southern anthracite field. The last is possibly
brackish water; the others, distinctly marine, show that during
the New River salt water occasionally had access, at least locally,

TD. White, “ Deposition of the Appalachian Pottsville,” Bull. Geol. Soc.

Amer., Vol. 15, 1904, p. 277. °

agr2.) STEVENSON—THE FORMATION OF COAL BEDS. 497

as far north as New River of West Virginia on the eastern side of
the bituminous region.

Evidence of marine conditions here and there in the northern
half of the basin becomes distinct early in the Beaver. On the
southeast outcrop along New River, West Virginia, one finds a
silicious limestone, non-fossiliferous, of which traces appear at
localities farther west almost to the Kentucky line. Somewhat
higher is the Eagle limestone of I. C. White, black, blocky and, as
are also the associated shales, richly fossiliferous. These deposits
seem to be unrepresented farther north and to be confined to a narrow
area in West Virginia. No trace of limestone or of any marine
deposit within the Beaver is known east from the Allegheny moun-
tains; none has been observed within the first three bituminous
basins of Maryland, Pennsylvania or West Virginia, unless the
Black Flint of the last state belong to the Beaver and not to the
Allegheny,—and it is confined to a small area near the Kanawha
River ; nor is there any along the northern outcrop in Pennsylvania
and Ohio. In northern Mercer county of Pennsylvania, 60 miles
south from Lake Erie, one is on the northern limit of the Upper
and Lower Mercer limestones of I. C. White, which are in the
shale mass underlying the Homewood sandstone and are associated
frequently with iron ore.

These deposits are persistent southward along the Ohio-Penn-
sylvania boundary for about 40 miles but they rarely extend east-
ward from that line to more than 25 miles. The limits of their
area are well marked, north, east and south, within Pennsylvania
and no trace is found beyond. The upper limestone is of irregular
occurrence in Ohio but the lower bed is persistent with, in several
counties, its boundaries at east and west thoroughly well defined.
It crosses Mahoning, Portage and Summit, but it is wanting in
Medina at the west. It is wanting in the panhandle counties of
West Virginia and in eastern Ohio to about 40 miles west from the
Ohio River. The Lower Mercer is present southward from Port-
age and Summit in an irregular strip, 30 to 50 miles wide, to Vinton
county and it enters the northwest corner of Scioto at about 20
miles north from the Ohio River. The western boundary is reached

498 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

at several localities in the northern part of the state, but, for the
most part, the present outcrop is east from it as the limestone area
seems to follow irregularly the direction of the pre-Beaver valley
in which the Sharon sandstone, or latest deposit of the New River,
was laid down. For this reason the limestone is found nowhere
in Kentucky. The thickness at the north rarely exceeds 5 feet, but
it increases southwardly to 10 feet. The Upper Mercer is less
persistent than the Lower, but its unexpected appearance at some
localities suggests that its area lay farther west. Both limestones
are richly fossiliferous, each being at times a mass of shells. They
indicate ingress of the sea in a narrow area, probably nowhere
exceeding 50 miles in width and reaching northward to within 60
miles of Lake Erie along the Pennsylvania-Ohio line.*®

The sea again invaded the basin soon after the beginning of
the Allegheny, for the Putnam Hill limestone of E. B. Andrews rests
on the first coal bed of that formation. It did not reach into Penn-
sylvania but it is followed easily in Ohio from Mahoning county
near the Pennsylvania line to Perry county, where its character so
changes that the bed is no longer available as a stratigraphic guide.
In much of its extent, this limestone is associated with flint and iron
ore and it shows great variation in thickness as well as in composi-
tion. Beyond Perry county, its area of deposit lay west from the
outcrop and only the iron ore remains to mark its horizon. It
carries an abundant marine fauna at most localities. At not far
from the Putnam Hill horizon one finds the Kanawha Black Flint
which occupies a small area on both sides of the Kanawha River in
West Virginia toward the southeastern outcrop. The probabilities
are, according to the plant remains, that it belongs lower in the
column. This black calcareous rock is embedded in black shale and
the mass is rich in marine forms. The area is more than 100 miles
east from the eastern limit of the Putnam Hill and Mercer lime-
stones, so that, like the Eagle limestone, it is evidence that the sea
had ingress on the eastern side of the bituminous region. :

% The observations by I. C. White, Newberry, Andrews, M. C. Read,

Stevenson, Orton and A. A. Wright are recorded in “ Carboniferous of the
Appalachian Basin,” Bull. Geol. Soc. Amer., Vol. 15, pp. 66-70, 80-86, 89-91.

j
;
4
2
q

1912] STEVENSON—THE FORMATION OF COAL BEDS. 499

Not long after deposition of the Putnam Hill, but long enough
for deposition of 40 to 80 feet of inorganic materials, the formation
of two coal beds and the erosion of broad valleys, another sea inva-
sion is recorded in the Vanport limestone of I. C. White. This
underlies in most of its extent an ore deposit, which in the earlier
days was so important that the rock below was termed the Fer-
riferous limestone. Like its predecessors, it is confined to the west
side of the basin. A fossiliferous limestone is present in the Lower
Allegheny at some places in western Maryland, but one cannot
determine whether or not it is contemporaneous with the Vanport,
as no fossiliferous limestone has been found at the horizon within
80 miles toward the west or northwest. The Vanport appears to be
wanting in the whole of West Virginia as well as in Pennsylvania
south from the line of the Ohio River. The deposit is recognized
first at about 70 miles north from the West Virginia line and at an
equal distance west from the crest of the Allegheny Mountains.

The most easterly locality in Pennsylvania, from which this
limestone has been reported, is in Indiana county at 75 miles east
from the Ohio line—apparently the tip of a prong; it appears at
many places in the next county north, but its distribution indicates

that the area is broken into prongs; and this is the mode of occur-

rence along the northern border where its limits are very well de-
fined. From western Jefferson, the area is continuous to the Ohio
line where the bed is 15 to 20 feet thick. The deposit is less regular
in Ohio, being represented in many places by fossiliferous shale,
calcareous sandstone and occasionally by limestone. These condi-
tions prevail in Mahoning, Columbiana, Stark and western Tus-
carawas, the limestone being of frequent occurrence in the last.
Thence southward into Elliott county, Kentucky, the limestone with
its ore seems to be continuous; beyond that the ore bed is traceable
for many miles. The western boundary of the deposit is reached
at a few localities in northern Ohio but, for the most part, it is
beyond the present outcrop. While the extent of the Vanport in
Ohio may have been less than that of the Mercer, its extent in
Pennsylvania was far greater. The sea-invasion reached 60 miles
farther east into Indiana county and 70 miles farther north into

500 STEVENSON—THE FORMATION OF COAL BEDS. [Noev. 1,

McKean county on the New York border. The area in Penn- .
sylvania was not less than 3,000 square miles, while that of the (
Mercer was little more than 500. At the same time, one must
keep in mind that the Vanport was not continuous throughout its
area; that on the borders it extends in long diverging prongs,
terminating in chert or calcareous sandstone. The Vanport was
formed at the close of a somewhat rapid submergence, during which
many stream valleys were filled with sandstone. Apparently the
peculiar mode of occurrence, the variations in structure and com-
position along the borders were due to the topography; while the
conditions in northern Ohio suggest that in that region the water
of the estuary was very shallow. In Pennsylvania and in a great
part of the Ohio area, this limestone has a rich marine fauna.’?

The roof shale of the Middle Kittanning coal bed, midway in
the Allegheny, contains Lingula and Discina as far north as Wayne
and Stark counties of Ohio. Aside from this, there appears to have
been no serious invasion during the Allegheny after the Vanport.
There are, it is true, several limestones, but there is no reason to
suppose that, excepting the newest of them, they are in any part of
marine origin. The Upper Freeport, almost the last Allegheny bed,
is the First Fossiliferous limestone of Kentucky, where it has a
marine fauna, but, north from the Ohio River, it resembles the
others in that the only fossils are minute forms, allied to those
usually regarded as freshwater types.

The Uffington shale of I. C. White, the roof of the Upper Free-
port coal bed, often yields abundance of plant remains, but at some
widely separated localities on the eastern side, in Monongalia and
Upshur counties of West Virginia, as well as in Wirt county of the
same state, far within the Central area, it has a marine fauna ac-
companied by fragmentary remains of plants. Whether or not the —
fauna exists elsewhere in the Central area is unknown, as the —
horizon is below the surface and the well records are of no service.
The distribution of this deposit is without explanation in the present

*“ The observations by I. C. White, W. G. Platt, Chance, Newberry,
Orton, Hodge and E. B, Andrews are recorded in “Carboniferous,” etc., as
above, Vol. 17, 1906, pp. 98-103, 113, 109-113, 116-121, 128.

1912.1 STEVENSON—THE FORMATION OF COAL BEDS. 501

state of knowledge. Where plant-bearing, this shale resembles the
ordinary roof shale, but where carrying remains of animals it is
black, somewhat sandy and occasionally somewhat fetid. It recalls
conditions described by A. Agassiz as existing in the Pacific ocean
between Mexico and the Galapagos islands.

The Uffington shale was followed by the often coarse and
massive Mahoning sandstone, containing one or more coal beds of
considerable extent, and that in turn was succeeded by a coal bed
underlying the Brush Creek limestone of I. C. White, the Black
Fossiliferous limestone of the early Pennsylvania reports. This
dark, almost black rock, enclosed in black shales, is the first lime-
stone which crossed the bituminous region and reached the line of
the Allegheny Mountains—it is recognized without doubt in western
Maryland. The deposit is wanting along practically the whole
eastern outcrop in West Virginia and most probably throughout the
interior of that state, for it has not been found under the great
anticline in Wirt county and black shale, at this horizon, is not re-
corded by the drillers of oil wells. It is persistent in western
_ Pennsylvania, which it enters from Preston county of Virginia and
Garrett of Maryland. The area, narrow at first, widens to 15 or
20 miles farther north and retains that width to the Ohio line.
Thence it is present for 40 or 50 miles southwestward into Jeffer-
son county of Ohio, beyond which it seems to be wanting for about
30 miles. But it reappears and is followed easily into Muskingum
county, beyond which no trace exists, the horizon being exposed at
very many places. The gap beyond Jefferson county is evidently
due to erosion, but there is no reason to suppose that the limestone
ever existed south from Muskingum county. The limestone and
shales are crowded with a marine fauna and the conditions indicate
that it was deposited in an estuary opening at the east.**

The Cambridge limestone of E. B. Andrews is at a little distance
higher in the Conemaugh column. A marine limestone, very near
this horizon, is in western Maryland, but that locality is more than
75 miles east from the nearest outcrop of the Cambridge; its rela-

“For the observations by Martin, I. C. White, Newberry, Stevenson,
and Orton, see “Carboniferous,” etc., as above, pp. 167-189.

502 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

tions are with the eastern side. The most easterly point in Penn-
sylvania, at which the Cambridge can be recognized with certainty,
is almost 60 miles east from the Ohio line and about 70 miles north
from that of West Virginia. Thence it is persistent into Ohio.
The direction of the area is almost westward in Pennsylvania but in
Ohio it becomes west of south, and the bed is easily followed across
that state and Kentucky to the last exposure of its horizon. In
southern Ohio and in Kentucky it extends eastward beyond any
predecessor and at the south it reaches into West Virginia; but it is
absent under the Wirt anticline in both Ohio and West Virginia.
In Pennsylvania, its area is far less than that of the Vanport and
the thickness rarely attains 8 feet. The distribution of the deposit
indicates a return to the earlier condition, as this is confined to the
west side. The abundant fauna is marine.*®

Midway in the Conemaugh is the remarkable deposit, the Ames
limestone of E. B. Andrews, the Green Fossiliferous limestone of
the early Pennsylvania reports. It overlies the Pittsburgh reds,
from which it is separated in extensive areas by the Harlem coal bed
and the associated shales. It has not been discovered anywhere
east from the Allegheny Mountains unless one accept as its equiva-
lent the Mill Creek limestone of the Northern Anthracite field,
which certainly is in the Conemaugh, possibly not far from the
Ames horizon. The Ames is thin, seldom more than 4 feet, and is
more or less argillaceous, especially on the eastern side. The color
is bluish green, thoroughly characteristic in most of the area, so
that the bed is a most important stratigraphic guide. Along the
eastern border it has been recognized positively to 75 miles south
from the Pennsylvania line; it is present in western Maryland and
southwestern Pennsylvania, wherever its horizon is exposed; it is
equally persistent in Ohio and Kentucky, being the Fourth Fossil-
iferous limestone in the latter state. It extends on the west side
to the middle line of the basin, being exposed under the Wirt anti-
cline in both Ohio and West Virginia. It was deposited in an area

* For observations by Martin, I. C. White, W. G. Platt, Stevenson,

Orton, Andrews, Lovejoy and Bownocker, see “Carboniferous,” etc., as
above, pp. 168, 175-180, 183-194, 197-201.

-
3
p

FE a ee ee ees Pa err eee

¢ se,
Bi
> G
Dy.
4
"
2
" 5 =
=
. a
i Va
Bh
: 2
,
¢ a
a ps
a
a
t Bi
>
.
a
\.
lat ~
’
f
7
| be
:
Hi
F
4

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 503

of not less than 16,000 miles, possibly much more, since no informa-
tion can be derived from the ordinary well records. This widely
extended deposit was certainly not continuous with the Mill Creek
limestone of the Northern field; the nearest outcrops of the two
rocks are separated by 150 miles, including a part of the bituminous
region in which the Ames never existed. The fauna is marine
throughout, even on the extreme western border in Meigs county of
Ohio where Condit®® found the limestone impure, sandy, ferrugi-
nous, conglomeratic with pebbles of sandstone and with sun cracks
on its upper surface. This marine invasion, affecting the greater
part of the Conemaugh area, followed the deposition of the fine
muds known as the Pittsburgh reds and was succeeded by the
Washington reds. Even where the reds are absent, the limestone is
usually between deposits of fine grain. Marine conditions preceded
it and continued after it; shales equivalent to the Pittsburgh reds
carry a marine fauna at some localities and, in Pennsylvania,
marine forms persisted up to 50 feet above the limestone.”

The only limestones in the anthracite region are in the northern
field, where they were seen by Ashburner. Three of them are
without fossils but the fourth, the Mill Creek at 688 feet above the
Baltimore coal bed and one foot thick, has a marine fauna. A
black shale at Dundee, in the same field and 250 feet above the
limestone, has the same assemblage of fossils. A peculiar feature
of this fauna is that it includes some forms unknown elsewhere in
the Appalachian basin, though abundant in. the coal area beyond
Cincinnatia—which seems to indicate communication by some other
way than that at the southwest.

Marine invasions practically ceased with the Ames episode:
there are other beds of limestone in the upper part of the Cone-
maugh but they appear to be at least non-marine.

Five limestones have been recognized in the Monongahela, but
they are confined to a small space in southwestern Pennsylvania and

”D. D. -Condit, letter of April 24, 1912. The locality is Sec. 10, Salem
township, Meigs county.

“The observations by I. C. White, Stevenson, W. G. Platt, Martin,
Newberry, Hodge and Andrews are recorded in “Carboniferous,” etc., as
above, pp. 167-202, 208, 211, 215.

PROC. AMER. PHIL. SOC., LI. 207 F, PRINTED DEC. 16, 1912.

504 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

immediately adjacent parts of Ohio and West Virginia, in all less
than one fifth of the present area of the formation. The deposits
are especially important in Pennsylvania between the Monongahela
and Ohio Rivers, perhaps 2,000 square miles, but they disappear
rapidly in all directions. The extreme development is near Wheel-
ing on the Ohio, where one finds 154 feet of limestone in 190 feet
of measures; but nearly the same thickness is shown near the
Monongahela, where, however, the section is longer, as it has sand-
stones and shales which are wanting at Wheeling. These deposits
vary from almost pure limestone to calcareous shale, and in much
of the area they are in layers one to 4 feet thick, separated by much
thinner layers of calcareous shale. Their appearance is so char-
acteristic that one familiar with them in any locality could hardly
mistake Monongahela limestones elsewhere for those of any earlier
formation. Animal remains are confined to a few types. Minute
forms, resembling the ostracoids found in the upper limestones of
the Conemaugh, are abundant at many places. Teeth of Helodus
and a spine of Ctenacanthus marshii have been collected from mid-
way in the formation within Washington county of Pennsylvania;
the fourth limestone is rich in Naiadites near Uniontown, Penn-
sylvania, and a blue shale near Morgantown, West Virginia, con-
tains abundance of Solenomya. The fish remains are the same with
those which abound in the marine limestones of Illinois, but these
marine forms are evidence of sea invasions so brief as to have no
significance, for they are unaccompanied by marine molluscs. All
the features indicate that the Monongahela limestones are, in
greatest part, of freshwater origin.

The Washington formation has six limestones, confined prac-
tically to Greene and Washington counties of Pennsylvania, all,
except one, disappearing quickly in each direction. They resemble
those of the Monongahela, some being covered with similar forms,
thought to be of freshwater types. Larger fossils are very rare.

I. C. White obtained from a black shale in the upper portion scales 4 :
of Rhizodus and other fishes, which are most probably freshwater __

in their relations, as the same genera occur in a cannel layer at

Linton, Ohio. The Greene formation has many limestones within —

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 505

southwestern Pennsylvania, but apparently most of them are mere
lenses and few of them can be regarded as definite members of the
section, though they are the striking feature in the lower half of
the formation. The Nineveh limestone, however, is persistent, hav-
ing been recognized along a line of more than 100 miles, and is 22
feet thick at its last outcrop in West Virginia—strangely persistent
in an area where every other bed in the column is changeable.
Although the beds have small extent, the quantity of limestone in
the Greene is very great. Fossils are rare; minute forms, mostly
ostracoids, occur in many beds and occasionally one finds in the
shales a form resembling Naiadites. Some of the more argil-
laceous limestones contain much finely comminuted vegetable
matter.

The composition and structure as well as the fossils in many
limestones above the Ames horizon have led to the belief that they
were deposited in freshwater basins; and evidence of like character

is not wanting in some of the Allegheny limestones.

I. C. White*? found that the Upper and Lower Freeport lime-
stones are very often brecciated in some of the layers and con-
cluded that they had been deposited as muds in inland lakes—con-
clusion very like that of E. B. Andrews presented in 1873. Ostra-
coids are abundant in the Upper Freeport. Farther south in Penn-
sylvania, the brecciated limestones appear toward the end of the
Conemaugh and the fossils are ostracoids along with forms resemb-

a ling Spirorbis. The limestones of the Monongahela, Washington

and Greene are brecciated at very many localities and some of them
rarely show normal structure. Ostracoids and Spirorbis-like forms
are extremely abundant in some.** Hyde’s® observations in Ohio
prove that conditions are the same in that state. A limestone in
Noble county, below the Ames, about 10 feet thick, has an irregular
top owing to erosion prior to deposition of the overlying sandstone.
The upper surface is mud-cracked and the cracks are filled with

“1. C. White, Sec. Geol. Surv. Penn., Rep. Q, 1878, contains numerous
illustrations; Rep. Q2, 1879, p. 220.

“J. J. Stevenson, Sec. Geol. Surv. Penn., Rep. K, many references.

“J. E. Hyde, “ Desiccation Conglomerates,” Amer. Journ. Sci., IV., Vol.
XXV., 1908, pp. 400-408; letter of January 12, 1912.

506 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

shale. Some layers are crowded with tubes resembling those of
annelids. The overlying sandstone contains limestone fragments
in the lower portion. A conglomerate limestone in Belmont county,
and very near the top of the Conemaugh, shows shrinkage in the
limestone fragments. The Monongahela limestones in the same
county vary from hard to soft, often becoming calcareous shale.
Shrinkage cracks are so numerous at times as to give a brecciated
structure. These limestones contain several species of minute
ostracoids which are very abundant, and in some beds one species
of ostracoid is well represented. These cover the bedding planes
and are shown especially well on sun-cracked surfaces Con-
glomerate layers are frequent, varying in thickness from half an
inch to 3 or 4 inches, and the fragments are from pea-size to several
inches in diameter. Hyde thinks the deposits are of freshwater
origin like the freshwater limestones in some of the western states
and he conceives that they represent the calcareous mud laid down
in probably shallow bodies of water. During the summer, the water
was evaporated and the ostracoids with the Spirorbes were left on
the muddy surface, which, exposed to the heat, became sun-cracked.
A similar explanation was suggested by Haast®® who, in describing
some Tertiary marls, says that they must have been “left high and
dry, exposed to the effects of a powerful sun, is well shown by
numerous cracks in the clay marls, which are several inches wide
and deep.”

Brecciated limestones have been reported frequently from other
lands and the explanations offered are not wholly concordant.
Roeder®® found in the Lancashire field a succession of red shales
and clays with thin coals and two limestones, in all somewhat less
than 900 feet thick. At Slade lane he saw 206 feet of measures,
mostly red, green or variegated shales with in all 21 feet 4 inches of
limestone. Some of the limestones are brecciated locally and the
passage from breccia to the normal structure is gradual. The frag-

“J. Haast, “Report on Geology of the Malvern Hills, Canterbury,”
Rep. Geol. Surv. N. Z., 1872, pp. 63, 64.

* C. Roeder, “ Notes on the Upper Coal Measures at Slade Lane, Burn-
age,” Trans. Manch. Geol. Soc., Vol. XXI., 1890, separate, pp. 7-22.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 507

ments are from pinhead to 2 inches and the larger ones are angular,
the edges at times jagged; the smaller pieces are more rounded. In
weathering, the fragments give way first, which leads Roeder to
suppose that they must have suffered from subaerial exposure before
entombment. He regards the condition as proof of occasional
elevation and exposure, when older limestones were broken up and
either transported or left in situ. Additional evidence in favor
of this conclusion was found in his discovery of angular fragments
of the Spirorbis limestone in sandstone at Ardwich. He cites Hull
and Williamson to show the wide occurrence of brecciated lime-
stone in England.

De Dorlodot® discussed the great breccia in the upper part of
‘the Carboniferous within the Franco-Belgian basin. He says that
some geologists have supposed it to be due to dynamic action, but
he believes it sedimentary, due to destructive attack by waves and
the rapid accumulation of the products. The elements vary much
in size and the paste, filling spaces between large and small blocks,
is itself partly limestone. The fragments, large and small, have
their angles but slightly rounded. In any event, they could not
have come from far.

Stainier®* took vigorous exception to de Dorlodot’s explanation,
because nothing of the sort is known in actual times. The supposed
conditions exist at many places along the coast of Great Britain, but
no breccia forms. If, by change in conditions, the shallow Carbon-
iferous sea should be dried up completely, the exposed limestone
would be a desert surface. The contrast in temperature would
break up the rock and give material for the breccia. When the sea
returned and invaded the area, it would sort the materials. The
coarse blocks would be moved little, the less coarse, farther; by in-
sensible gradation one passes to the compact limestone which, east
from Namur, occupies the breccia horizon.

It is difficult to believe that the brecciation was caused by ex-

“H.-de Dorlodot, “Sur lorigine de la grande bréche Viséene,” Bull.
Soc. Belge de Geol., Vol. XXII., 1908, Mem., pp. 29-38.

* X. Stainier, “Du mode de formation de la grande bréche du Carbon-
ifere,” Bull. Soc. Belge de Geol., Vol. XXIV., 1910, P. V., pp. 188-196.

508 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

posure after the limestone had become consolidated; the features in
most cases are those observed where a moist material, still soft,
is exposed to the air; the brecciation is that of cracking due to loss
of moisture. Haast’s explanation, more or less modified by later
students, is evidently the one most closely related to the facts.

Perhaps some reader may hesitate to believe that limestones as
thick as those of western Pennsylvania can be of freshwater origin;
but they are not greater than some recent marl deposits within the
United States. Davis®® has discussed the whole subject showing the
mode in which the material accumulates and its relation to peat
deposits. D. J. Hale, in the same volume, described many Michigan
deposits, 20 to 47 feet thick. Blatchley and Ashley’? have shown
that conditions are the same in Indiana as in Michigan. They are
convinced that the supply of calcareous matter was ample in later
Coal Measures times, for limestones must have cropped out in
extensive areas and the springs in much of the region must have
been charged with dissolved limestone. But both the Appalachian
limestones and the western marls are insignificant when compared
with those of the Tertiary lignite area of l’Aude in France.1% The
section at Cavonetti shows at top a freshwater limestone, nearly 80
meters thick. Some of its beds are rich in river shells and others
are equally rich in Lymnea and Planorbis, which are found also in
the shales and in the lignite. A similar limestone, 10 to 15 meters
thick, is lower in the section and the lowest member exposed is of
the same type.

The presence of Spirorbis has been regarded by some as an
objection to acceptance of freshwater origin for the limestones, for
beyond all doubt that form is related to marine types. It occurs
throughout the Coal Measures column, sometimes in deposits which
are certainly marine and at other times in deposits which are dis-

°C. A. Davis, “A Contribution to the Natural History of Marl,” Geol.
Surv. Mich., Vol. VIII., Pt. III., 1903, pp. 65-06.

W.S. Blatchley and G. H. Ashley, “ The Lakes of Northern Indiana
and their Associated Marl Deposits,’ Twenty-fifth Ann. Rep. Geol. Surv.
Ind., 1901.

*(M) de Serres, “Observations géologiques sur le Département de
VAude,” Soc. des Sci. Lille, 1835, pp. 453-455.

|

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 509

tinctly not marine. The best summary of the conditions was given
by Barrois,*°? who was led by the apparently contradictory modes
of occurrence to make thorough investigation of the whole subject.
Some of his conclusions will find place in another connection but
others are of interest here. He found Spirorbis shells attached to
living plants, to plant débris, to brackish and even to essentially
salt water animals. In the larval condition, the type is free but in
the adult, fixed. It is allied to Vermetus and Spirorbis of the
present time, all marine. To reconcile the existence of such forms
on plants essentially terrestrial, one must admit that the original
Carboniferous Spirorbis lived fixed on marine shells; that the de-
scendants became habituated to brackish water, where they attached
themselves to Carbonicola; and at last to fresh water, where they
became fixed on ferns. It is very evident that the conditions noted
by Barrois exist in the Appalachian basin, so that the presence of
Spirorbis cannot be regarded as evidence for or against any
hypothesis respecting the character of the water. i

It is quite possible that the occurrence of Naiadites may be evi-
dence of brackish water invasions.

Reference has been made to very dark carbonaceous or bitumi-
nous limestones, of which the Brush Creek may be taken as type.
They are not numerous. Their fauna is marine, they are often
fetid and, at times, have some vegetable matter. The Brush Creek
limestone, as has been shown, occupies a long narrow area, bordered
by shales and sandstones and, at some localities in both Pennsylvania
and Ohio, it suffered severely from erosion prior to deposition of
the overlying rock. De Dorlodot*®* has discussed the origin of
sapropelic limestones and his conclusions seem to require examina-
tion at this point. Some crushed polyps, exhibited at a meeting
of the Geological Society, were in a gangue which had undergone
slow compression, such as that which Potonié had recognized as
characterizing sapropelian muds. A. Renier had accepted sapro-

* C. Barrois, “Sur les Spirobes du Terrain Houiller de Bruay (Pas-de-
Calais),” Ann. Soc. Geol. du Nord., Vol. XXXIIL., 1904, pp. 50 et seq.

*8 H. de Dorlodot, “ Sur les conditions de dépot des marbres noirs dinan-

tiens et des sapropelites marines en général.” Bull. Soc. Belge de Geol.,
Vol. XXV., ro11, P. V., pp. 146 et seq. :

510 STEVENSON—THE FORMATION OF COAL BEDS, (UNov.1,

pelian origin for the black limestone of Hun and F. Kaisin had done
the same for the Dinant marbles. De Dorlodot agrees with Renier
that the limestone is marine but dissents from the opinion that
it is a coast deposit. The conditions and stratigraphical relations
had led him to believe that it was deposited far from shore, for the
deposits are not local, they are extensive and their lithological char-
acter suggests deep-sea origin. .

According to de Dorlodot, Renier’s decision in favor of shore
deposit depends upon the presence of terrestrial plants and of
sapropelic matter in the limestone; but presence of remains of ter-
restrial plants is irrelevant, for A. Agassiz found them far from
shore and in deep water off the Pacific coast as well as in the Gulf
of Mexico. Sapropel deposits can be formed along coasts only in
lagoons or in bays protected against movement of the waves.
Proximity to the coast is not possible, for action of the waves would
cause continuous oxygenation of the water. The deep sea would
be most favorable to accumulation. He supports his opinion by
reference to carbonaceous shales of the Toarcien, asserting that
their geographical extent is proof that they were not deposited in
isolated bays, while their fauna proves deposit in the maximum of
immersion—and those shales contain remains of land plants. The
fact that deep sea soundings in our day show no sapropelian de-
posits is not final. The problem is not to explain why the old
marine rocks are so rich in kaustobiolithic materials, but why
modern deep sea deposits are so poor. The problem may be stated
in another way. How is aerobian life possible in great depths of
the ocean so as to cause destruction of the organic matter which
the plankton must afford? This is explained by the bottom-creep
of oxygenated water from the poles; in the Black sea, which is
beyond the influence of that creep, there are only anaerobic organ-
isms in its depths. Sapropelic character does not prove shore
origin—it rather tends to establish and at times to demonstrate
deposition at distance from the shore and at great depihs. De
Dorlodot believes that the limestones under consideration were de-
posited far from the coast and in calm water.

It is difficult to discover the force of this reasoning and equally

1912] STEVENSON—THE FORMATION OF COAL BEDS. 511

difficult to understand the bearing of some of the arguments upon
others. That from geographical extent is unimportant for the
Brush creek limestone has been traced 150 miles and it must have
had a notable area in the now eroded region at the east. Nor does
it seem essential to deposition of sapropel that the water be calm.
Potonié has told of extensive lakes in Germany, formerly navigable
but now choked with sapropel. The surface of navigable lakes,
great or small, is apt to be churned into waves. No reason can be
assigned why the Frische Haff, at the mouth of the Vistula, may
not be filled with sapropel, provided conditions remain as now.
The presence of fragments of land plants is not of itself final evi-
dence of deposit in shallow water or on an offshore area; but the
discoveries by A. Agassiz hardly relate themselves to the matter,
for he did not report the presence of sapropel material in mud hold-
ing fragments of rotten wood, though the region is one as favorable
to accumulating such material according to de Dorlodot’s conception
as One can imagine. The arctic creep must be at its minimum in the
Gulf of Mexico. One may hardly refrain from suggesting that de
Dorlodot has not conceived the problem fairly. Unquestionably
the absence of kaustobiolithic materials from deep sea deposits of
this day is as perplexing as interesting and the explanation offered
by that author may or may not be correct. But that is not the seri-
ous problem, for most of the Coal Measures marine limestones are
_as free from sapropel as are the present deep-sea limestones, so that
conditions then were very much like those of this time. The
assumption throughout the discussion is that the marine fauna of
the limestone indicates very considerable depth of water, the maxi-
mum of immersion. Even this is open to question. True, it is in
accord with the prevailing opinion, which, having been unchallenged
for a long period, has become, for many, one of the fundamental
pillars of geology. Studies by palzontologists in the Appalachian
areas lend no support to the belief that deep water covered the
Appalachian basin during the Palzozoic and the stratigrapher hails
their conclusions with gratification, as they coincide with his own.
These conclusions and the arguments supporting them will be found
on a later page. The arguments are applicable equally to conditions
in other lands.

512 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

The use of the term currents to explain local conditions is apt to
be misleading. There is no good reason for supposing that there
were any currents in the Appalachian basin. The close succession
of often coarse sandstones upon marine limestones, even upon
sapropelic limestone, shows that the deposits were near a shore.

A review of the conditions leads to conclusions the same as
those suggested by deposits of other materials. The marine lime-
stones are local, are in areas which, for the most part, can be de-
termined closely. Those of the earlier formations are found on
both sides of the Alleghenia ridge, but the localities, at which
observations have been made, are too widely separated to admit of
an attempt to determine their relations. The Beaver and Allegheny
limestones, however, have been traced in detail. On the western
side, within the Ohio basin (of Schuchert), they followed in a
general way the direction of the pre-Beaver valley in Ohio but as
they approached the Pennsylvania line, they turn eastward into that
state. This variation becomes notable in the Vanport, which seems
to have followed rather closely in Pennsylvania the lines of valleys
eroded during the immediately preceding times. There can be no
question that the early drainage line, established prior to Beaver
time, persisted until the middle of the Allegheny and that it de-
termined the area of sea-invasion, as the old river valleys along the
Atlantic coast have done in recent times. The extent of the lime-
stones, though they follow the same line in great part, shows that
the estuaries, due to drowning of the valleys, were not of equal
length. When one examines the conditions on the eastern side, he
finds that, in the Beaver and Allegheny, the marine limestones
occur within a small area in West Virginia. Erosion has removed
the Pennsylvanian from a great expanse on the eastern side so that
the relations of these limestones cannot be determined beyond the
present exposures, but the deposits seem to mark the upper portion
of successive estuaries along the same general course. The sea-
invasion on this side may not have reached so far north as on the
western.

In the early Conemaugh, the conditions were somewhat different.

sae

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 513

The long serpentine course of the Brush Creek limestone from Mary-
land to central Ohio shows that, while there had been no great
topographical change and the whole area was still lowland, there
had been enough change during deposit of the underlying sandstone
to make possible, by slight submergence, a broad, continuous drowned
valley across nearly the whole bituminous region,—from very near
the eastern outcrop westward to the line of the pre-Beaver valley.
This depression did not affect the southwestern part of the region
as there is nothing there answering to the Brush Creek; the invasion
was from the east. But during the next interval, the earlier con-
ditions were restored and one finds the Cambridge limestone follow-
ing approximately the course of the Vanport in Pennsylvania, Ohio
and Kentucky, though reaching farther eastward in the latter states.
But at about the same time, there was a new invasion on the eastern
side along the line of Brush Creek estuary, for a marine limestone
is present in western Maryland while farther west near the Monon-
gahela River in West Virginia, there is a non-fossiliferous limestone,
which may represent the shore phase of the same deposit.

The Cambridge limestone marks the temporary culmination of
a long continued subsidence which brought a constantly widening
area on the west side to sea-level and eventually below it. That
area continued to widen eastward and reached its maximum when
the Ames limestone was deposited. Peneplanation of the bituminous
region had become far advanced ; for a long period only fine material
had been brought down by the streams and a very great part of
the region had become converted into mud flats through which the
streams meandered in shifting channels, sorting the fine clays and
sands. The rivers must have emptied into estuaries around the
border for marine conditions existed as far north as the southern
line of Pennsylvania just prior to the Ames. Limestone deposition
began first at the west, the thickness and purity of the rock being
best marked in Ohio, and advanced east and northeast until the bed
covered a great part of the bituminous region. The efflux of the
cleaner water was abrupt, but the limestone is followed by fine
deposits at most localities and it was not until 70 feet of shales had
been laid down in much of the region that the normal conditions
were restored. It is possible that the 70 feet of muds, in which

514 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

there is evidence of marine life, may be the measure of the extreme
possible depth at which the Ames limestone was deposited. Indeed
one is tempted, in view of conditions observed on islands in mid
ocean, to suggest that the abrupt appearance of muds above the
Ames might be regarded as evidence that the limestone was deposited
in very shallow but very clean water; and the temptation is the
stronger, because stream-sorting appears in the arrangement of
materials composing the overlying shale. :
Were these limestones deposited in deep water? The testimony
of the fossil remains in answer to this question will be examined
on a succeeding page; but there are several matters to be considered
here. In some cases, the limestones can be followed to their disap- —
pearance. The Vanport limestone in Pennsylvania ends in long
prongs within Pennsylvania, gradually passing into sandstone, débris
from the sides of the valleys in which the limestone terminates.
And fossils continue after the change has begun. The western edge
of the Ames limestone was reached by Condit in Meigs county of
Ohio, where that rock, still fossiliferous, is rippled and is con-
glomerate with quartz pebbles. This condition is not unknown in
other limestones of the Carboniferous; if verbal statements of geol-
ogists, who cannot recall localities, may be accepted, the condition
is familiar. The writer is indebted to Butts’ for specific instances
in earlier formations. Shrinkage cracks and wave marks are abun-
dant in marine fossiliferous rocks of Stones River and Black River
age in southern Tennessee, where the deposits, he is convinced, are
of shallow water origin. In the Cahaba valley of Alabama, on the
border between the Bessemer and Montevallo quadrangles, he dis-
covered at the base of the Stones River (Chazyan) limestone, a
pebbly bed, which was examined in an area of several square miles.
At one locality, the pebbles are comparatively few and occur in a
layer never more than 2 feet thick; but elsewhere the vertical dis-
tribution is much greater, becoming 20 feet, in which fragments
are abundant, while small pebbles occur throughout the higher por-
tion of the bed. The pebbles are of quartz, quartzite and chert,
varying in size from three fourths of an inch down. Many are

™C. Butts, letter of June 21, 1912.

#912] §STEVENSON—THE FORMATION OF COAL BEDS. 515

well rounded, but those which are angular or subangular are quite as
abundant. Maclurea magna and a considerable number of other
forms are present in the limestone containing the pebbles. This local-
ity must have been very near a’shore line; there is no evidence to
suggest that the shore was precipitous and one must agree with
Butts that deposition in shallow water is indicated, although, accord-
ing to accepted doctrine, the fossils suggest deep water. The pres-
ence of fossils in the Chazyan limestones as well as in the Ames and
Vanport, where the rock is changing into merely calcareous sand-
stone, makes clear that the presence of marine fossils is not to be
taken as final evidence of deposition in deep water.

The Testimony of the Fossils—There are few fossiliferous
horizons in the Appalachian basin and collections have been made
at not many localities. But, if one bear in mind that the areas of
marine deposits are comparatively insignificant, the number of col-
lections will appear sufficient.

A systematic collection of Mercer forms was made in the Zanes-
ville-Newark region of Ohio’® and some notes respecting the fauna
of the same horizon in Pennsylvania were given by I. C. White.
In the Ohio area there were obtained species as follows: One crinoid,
I coral, 5 bryozoans, 3 inarticulated brachiopods, 13 articulated
brachiopods, 40 pelecypods, 14 gastropods and 2 cephalopods. Ray-
mond?” has given a list of forms collected by him from the Vanport
at several localities in Beaver county of Pennsylvania; it shows 3
corals, 2 bryozoans, one inarticulated brachiopod, 14 articulated
brachiopods, 3 pelecypods, 20 gastropods and 3 cephalopods. I. C.
White added to this list from Lawrence county 2 crinoids, I articu-
lated brachiopod, 7 pelecypods, 5 gastropods and 1 cephalopod.
Twenty-three species are common to the Mercer and Vanport in
these lists. Probably the Vanport list is incomplete, as a consider-

** Clara G. Mark, “ The Mercer Limestone and its Associated Rocks in
the Zanesville-Newark Region,” Bull. Sci. Labor. of Denison Univ., Vol.

XVL., 1011, pp. 267-314; I. C. White, Sec. Geol. Surv. Penn., Rep. Q, p. 68;
Rep. Q2, p. 61.

* P. E. Raymond, “A Preliminary List of the Fauna of the Allegheny
- and Conemaugh Series in Western Pennsylvania,” Topog. and Geol. Surv.
[of Penn.], ro11, pp. 83, 84.

516 STEVENSON—THE FORMATION OF'COAL BEDS, [Nov. 1,

able number of the Mercer forms are not recorded, though they have
been found in the Conemaugh of Pennsylvania and West Virginia.
It is equally probable that the Mercer list is local only, as some forms.
mentioned in the Paleontology of Ohio are not given.

The first deposit of the Conemaugh is the Uffington shale, which
is rich in fossils at some places within northern West Virginia. The
important list is that by Meek’®’ of forms collected at Morgantown,
a few miles south from the Pennsylvania line. There are 4 articu-
lated brachiopods, 8 pelecypods, 11 gastropods, 3 cephalopods, to
which Stevenson in later collections added 1 coral, 2 crinoids, 4
pelecypods and 3 cephalopods. The rock is a black shale, more or
less ferruginous, the conditions being very different from those of
the Vanport and Mercer, yet, in this collection of 26 species made
at an exposure of about 25 square feet, there are 14 species in com-
mon with the Vanport and 12 with the Mercer. The Brush Creek
limestone and associated shales are separated from the Uffington
below by the Brush Creek coal and the Mahoning sandstone. Lists
from Pennsylvania have been given by Raymond and White and a
brief list of forms collected in western Maryland has been published
by Martin.1°° The list by Raymond contains 1 coral, 1 inarticulated
brachiopod (Lingula), 12 articulated brachiopods, 9 pelecypods, 15
gastropods, 5 cephalopods. To these, White adds one pelecypod and
Martin adds a crinoid and an articulated brachiopod. Thirteen
species are in common with the Mercer and 16 with the Vanport.
Omitting the Cambridge, to avoid repetition, one comes to the Ames
limestone, which is actually continuous over a greater area than that
of any other deposit in the whole column. Raymond’s’” list front
five localities on the Pennsylvania railroad, east from Pittsburgh, —
contains 1 coral, 2 inarticulated brachiopods, 15 articulated brachio-
pods, 6 pelecypods, 10 gastropods and 4 cephalopods. The inarticu-
late brachiopods and the pelecypods are rare. Stevenson gave lists

FB. Meek, “Lists of Carboniferous Fossils from West Virginia,”
Third Rep. Regents of W. Va. Univ., 1871, pp. 68-70.
*8 P, E. Raymond, loc. cit., pp. 85-87; I. C. White, Rep. Q, p. 34; G C.
Martin, West Va. Geol. Surv., Vol. II., 1903, pp. 280, 281.
7 P. E, Raymond, loc. cit., pp. Ro08; J. J. Stevenson, Ohio Geol. Sure
Vol: III., 1879, pp. 207, 223.

wi
we

Nie ee ae ho
uaa

Ma ts

1912.] STEVENSON—THE FORMATION OF COAL BEDS, 517

of forms occurring in Guernsey and Harrison counties of Ohio,
where the rock is a fairly good limestone. He found 2 corals, I
crinoid, I inarticulated brachiopod, 15 articulated brachiopods, 2
pelecypods, 7 gastropods and 1 cephalopod. Condit in 1909 pub-
lished a list from Meigs county, Ohio, which adds two species of
articulated brachiopods. Meek’s list from near Morgantown is in
contrast with that just given, for it shows one species of inarticu-
lated brachiopods, 10 articulated, 12 pelecypods, 7 gastropods, 2

_ cephalopods, to which Stevenson at a later date added one articulated

brachiopod, 6 pelecypods and one gastropod. The contrast is due to
the fact that the collection, studied by Meek, was made at a locality
where the Ames limestone is obscured in a mass of fossiliferous
shales extending downward into the horizon of the Pittsburgh reds.
At a mile north, the limestone is distinct and has no pelecypods
except Myalina and Aviculopecten. In comparing these lists with
those from earlier deposits, one finds 23 species in common with the
Vanport and 24 with the Mercer. The Ames limestone is succeeded
in Pennsylvania by shales, at times 70 to 80 feet thick, in which
Raymond found marine forms at several levels. They are not
abundant, but 2 species of articulated brachiopods, 6 of pelecypods
and one cephalopod were recognized and an Orbiculoidea was found
near the top of the deposit at 75 miles east from Pittsburgh.

It would seem that distribution of the organic types depends
often upon the character of the rock. Miss Mack observed that
pelecypods are more abundant in the shaly layers and brachiopods
are more abundant in the purer limestone. Raymond’s lists indicate
that brachiopods are very numerous in his Vanport localities, where
the limestone is good ; it may be that, where White obtained so many
pelecypods, the limestone is broken by calcareous shale. The Ames
limestone is comparatively pure where Raymond’s collections were
made and in Ohio it is a good limestone; pelecypods are very rare
—6 species are recorded but individuals are very few. Near Mor-
gantown, West Virginia, the Ames yields no pelecypods except Mya-
lina and Aviculopecten, whereas pelecypods and gastropods are abun-
dant in the associated shale, the latter, at times, making up the
greater part of the mass. Brachiopods are less common in these

518 STEVENSON—THE FORMATION OF COAL BEDS, [Nov.1,

shales, but they are of the same species as in the overlying limestone
and of equal size.

The lists, as has been said, are local; they do not suffice for
comparison of faunas at the several horizons; but that is unimpor-
tant here. Each locality has been examined with such care as to
give a just conception of the manner in which the several groups of
organisms occur. It should be kept in mind that fossiliferous beds
are not only fewer in number within the Appalachian Pennsylvanian
than in the region west from Cincinnatia, but also very much less
prolific in species and less commonly so prodigal in individuals.
These features suggest to the paleontologist that marine conditions
in the Appalachian basin were abnormal.

The ccelenterates give no information respecting the conditions.
Only two species of coral have been found and one of them has no
preference for limestone over shale, individuals being equally abun-
dant in both. One of the crinoids has a similar distribution.

Few species of bryozoans have been reported but these abound
at several horizons. They are found in pure and impure limestones
as well as in shales containing very little calcareous matter. They
are characteristic of somewhat sandy shales in the Waverly of north-
ern Ohio. Ulrich’!® says that bryozoans of recent time flourish best
in water depositing slightly argillaceous limestone—relatively quiet
water—and at depths little beyond the zone of violent wave action.
The habits of these animals seem to justify the conclusion that the
limestones and other beds in which they abound, the Mercer, Van-
port and Cambridge, were deposited in comparatively shallow water,
probably less than 100 feet deep; and this conclusion is strengthened
by the fact that in some localities the area of those limestones was
so restricted that violent wave action would be hardly possible.

The brachiopods, at first glance, are less definite. According to
Schuchert,"? among recent species of inarticulated brachiopods 24
live between high tide and 90 feet; 7 between 90 and 600 feet, and
only one at great depths, Lingula and Discina are unknown below —
90 feet but Crania and Discinisca occur at greater depth. The inar-_
ticulated forms have changed comparatively little in character since

™”E. O. Ulrich, Bull. Geol. Soc. Amer., Vol. 22, 1911, p. 252.
™C, Schuchert, Bull. Geol. Soc. Amer., Vol. 22, 1911, pp. 258-275.

i a
ae
\
S
a
ae
yy
>
a
=
cS
“s
GS
3
a
*
a,
=
Bi
i
ae
i 4
$ ’
—_—
: a
g 3
rf 3
s *
£ a
ae
ee ‘an
: oe
p a
7 &

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 519

their first appearance and, in all probability, as little in their habits.
For the most part, they cling closely to the strand in recent times.
Articulated brachiopods of the present day require deeper water and
84 of the living 129 species belong between go and 600 feet. Rhyn-
chonellids are never found in shallow water ; but this was not always
the condition, for in the older rocks they often occur abundantly
with thick-shelled lingulids in coarse sandstones and mud beds. The
terebratulids range from between tides downward. Of all living
brachiopods, 81 per cent. are bound to shallow waters, 7 per cent.
are found in the deeper waters of continental shelves and only 11
per cent. occur at greater depths.

Applying Schuchert’s results to the Appalachian basin, one finds
that Lingula and Orbiculoidea (Discina of authors) are common in
the dark roof shale of the Middle Kittanning coal bed of Ohio and
that Lingula is found in several roof shales within Kentucky. It is
present at the Brush Creek horizon. Orbiculoidea is reported from

-the Mercer and the Ames, one species being common to both, and

the same genus has been obtained from the upper part of the muds
and shales following the Ames. These forms are not numerous in
the limestones but they abound in some shales. The individuals are
seldom more than five eighths of an inch long but that size is excelled
only by forms in coarse rocks. Of the articulated brachiopods, the
rhynchonellids, which now prefer deep cold water, and the tere-
bratulids, most of which now inhabit the deeper shallow zone, are
feebly represented in the Pennsylvanian—perhaps because these
brachiopods were little differentiated at that time. Of the other
types, practically all belong to families now extinct and one must
determine their habits by the record which they have left in the
rocks. The productids attained noteworthy size in the later De-
vonian coarse sandstones, where they are associated often with
heavy-shelled Lingula or Discina. They are abundant in both the
pure and the muddy limestones of the Maxville. Eight species of
Productus are reported from the limestones and shales of the Penn-
sylvanian within the bituminous region, one being common to all
the lists, 2 to four of them, 2 to three, two belonging to the Cone-
maugh and one being confined to the Vanport. Five species are
found in limestone and shale alike and two are abundant in shale
PROC, AMER. PHIL. SOC. LI. 207 G, PRINTED DEC. 16, I9gt2.

520 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

which contains only a trace of calcareous matter. The Spirifers
are represented by two species, one of which is in shale as well as
limestone and its size is the same in both. Sandstones with marine
forms seem to be few in the Appalachian basin and the fossils are
rare; but such sandstones are numerous in the Devonian of that
basin. Spirifers of the later type attain great size in the coarse
Oriskany sandstone where they are associated with huge Discine;
while in the later Devonian they are present in the coarser beds of
the Chemung, often appearing in great numbers. The athyrids are
the same throughout, whether the rock be limestone or shale. A few
of the Pennsylvanian brachiopods occur only where the limestone
is free from sand or clay, but that proves only that they preferred
the cleaner water; it has no bearing on the question of depth, for
within a few yards the limestone shades off into calcareous shale.
Condit’s discovery of the Ames fauna near the western shore line,
where the rock is sandy, conglomerate and wave marked, shows that

the animals existed in shallow water. Butts’s observations on the.

Ordovician fauna are equally definite. The evidence is so clear
respecting the Pennsylvanian brachiopods, that one is tempted to
believe about all the genera, as Schuchert has suggested respecting
the rhynchonellids, that they were originally forms belonging to
shallow water, and that the tendency of so many modern forms to
prefer deeper water is a modification due to subsidence of coastal
areas. As far as the testimony of brachiopods is concerned, there is
every reason to suppose that the marine deposits were laid down in
shallow water.

The pelecypods of the Pennsylvanian within the Appalachian
basin are allied, for the most part, to families which in recent times
have great vertical distribution. Pectens range from 2 to 200
fathoms; Limas from 10 to 150; Arcas from low water to 200;
but aviculoid forms seem to go no deeper than 20 fathoms. At the
same time, one must bear in mind that, while many genera have

great vertical range, there is, in most of them, a large number of —

species which are confined to water as shallow as that preferred by

Lingula and Discina. It is certain that most of the Coal Measures "

pelecypods thrived best where the water carried clay or sand and

thrived poorly where pure limestone was deposited. Few pelecypods —

1912.] STEVENSON—THE FORMATION OF COAL BEDS. 521

__ were obtained from the limestone at the Mercer horizon but they
' abound in the calcareous shale ; the Brush Creek limestone and black
__ shale has abundance of brachiopods and pelecypods, the latter espe-
a ' cially numerous in individuals; the Ames limestone has few pelecy-
___ pods, specimens of the six recorded species being rare everywhere;
___ whereas the underlying shales have yielded 17 species, most of them
represented abundantly—and with them are several species of
brachiopods. Wholly similar conditions exist in Devonian and
earlier formations where pelecypods abound in sandstones and even

in calcareous muds but are comparatively rare in the limestones.
Gastropods of the present day have great vertical as well as
geographical distribution, but many genera and species of other
_ genera have very limited vertical range. Respecting those of the
_ Pennsylvanian, little can be said. Their mode of occurrence gives
_ little clue to their habits, for many of the species are almost equally
_ abundant in shale and limestone. The migratory tendencies of
_ gastropods makes the evidence of scattered, even that of compara-
tively numerous individuals of doubtful value; but where a clay
shale is crowded with specimens of two or three species, as is the
case many times, there is little room for doubt respecting the habitat
preferred by those species. One who has made collections at several
localities would not hesitate to assert that many species of gastro-
pods found in the Allegheny and Conemaugh preferred to live near

the ingress of muddy water.

3 If one were to conclude from the occurrence of REO re-
_ mains, he might decide that the character of the water has been a
_ matter of indifference, for, from the earliest appearance of those
_ forms, they have been distributed in limestones, shales and sand-
stones, sometimes attaining great size in the last. In so far as the
Coal Measures of Pennsylvania and Ohio are concerned, the writer
has obtained few specimens from the limestones but he has collected
very many from the shales. The distribution would indicate that
muddy water was preferred. But this inference has no good basis.
Cephalopods are migratory; modern types prefer pure water; but
after death, the shell freed from the animal may float great distances
__ to be dropped in any kind of bed. The presence and the distribu-
tion of cephalopods give no certain information respecting the con-

522 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

ditions. At the same time, it does appear strange that, if the older
forms preferred clear water, they are found so seldom in the Mercer
and Vanport limestones, formed in long estuaries, while they are
so abundant in the muds which are associated with the Brush Creek
and in those underlying the Ames.

It would appear that the distribution and the habits of inverte-
brate animals forms lend no support to the belief that the Appa-
lachian basin, during Coal Measures time, was ever covered in whole
or in part by deep water. The passage of muddy-water-loving
pelecypods and gastropods into the more calcareous and even into
the limestone areas, the occurrence of such forms in shale patches,
lying within limestone areas with different but interlocking fauna,
suggest that in the areas of limestone deposit also the water was shal-
low, that those were merely estuaries, bordered in great part by
lowland areas with very sluggish drainage.

Cornet,’** in discussing the lowest Coal Measures deposits near
Mons in Belgium, regards the absence of gastropods, the abundance
of pelecypods with byssus, especially of mytiloids, aviculoids and
pectenoids, as evidence that the deposit was littoral. Modern condi-
tions on the Belgian coast strengthen his conviction. The abundance
of ammonoids might indicate deep water, but this cannot be decisive
in the presence of contrary evidence. One can easily understand
the presence of cephalopods in littoral deposits, but it would be diffi-
cult if not impossible to explain the great abundance of molluscs
with byssus in deposits made far off shore. He says that Barrois
had come to the same conclusion respecting the alum-bearing shales
at Marly, but E. Haug has placed generally among deep sea deposits
the shales and fine shaly sandstones with Goniatites and Pseudo-
nomya, constituting the Culm. While the life indicates littoral
deposition, the fine grain of the H la sediment seems to accord better
with a certain distance from the shore. But this objection means
nothing for, as actual conditions show, the coarseness or fineness of
shore deposits depends on features of the area, its lithology, altitude
and climate. The coal terrain, excepting intercalations only a few

“J Cornet, “Le terrain houiller sans houille (H la) et sa fauna dans

le bassin du couchant de Mons,” Ann. Soc. Geol. de Belgique, Vol. XXXIV.,
1906, Mem., pp. 139-152.

ON ae Ome ee get a

1912] STEVENSON—THE FORMATION OF COAL BEDS. 523

meters thick, is formed of very fine sediments. Clay shales make
up about 70 per cent. of the column; nevertheless the Upper Coal
_ Measures of the Franco-Belgian basin cannot be regarded as a
deposit of the deep sea. He feels compelled to believe that the
neighboring areas were lowlands and that the continent was in an
advanced stage of peneplanation.

Jukes-Brown had reached the same conclusion respecting the
English coal terrain.

Schuchert,"** in the work already cited frequently, asserts that,
during the periodic invasions in the Paleozoic, the depth of water
in the Appalachian sea was very shallow, rarely exceeding 200 to
300 feet. On the west shore of Appalachia, conglomerates, sand-
stone and coarse muds, with rippled surfaces, are common; while
in calcareous periods, one finds shrinkage cracks, marking great mud
flats inundated periodically with calcareous materials nearly devoid
of life. In the New York basin, the northern division of the Ap-
palachian, the later deposits are sands and muds without marine life,
though containing some land plants, some fishes and some fresh-
water bivalves. The sands are often red, oxidized materials in
estuaries, dried out by sun and air. The shallowness of the sea is
evidenced by the almost endless list of formation names applied by
field geologists. These conditions existed at the close of the
Devonian.

Ulrich*** in some instances would go farther than Schuchert in
limitation of depth. These students had covered a very great part
of the United States either by personal observation or by study of
collections made by government geologists and others. They agree
wholly in asserting that seas caused by ocean invasions were
shallow, but Ulrich feels justified in admitting for some extensive
areas a less depth than that which Schuchert, with abundant caution,
had named as a probable maximum in his general statement. He |
had examined about 20 marine embayments of Ordovician and
Silurian age in the Nashville and Ozark uplifts—the former within
the area of Cincinnatia and the latter much farther west. His con- -

™8 Schuchert, “ Paleography of North America,” pp. 438, 439.
™E. O. Ulrich, “Revision of the Paleozoic Systems,” pp. 361.

524 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

clusion is that the depth of water was never more than 100 feet in
those localities and generally much less. His studies led him to
conclude that the average depth of Palzozoic seas was even less
than 200 feet and that none attained a depth exceeding 600 feet.

There is no reason to suppose that the non-marine limestones are
other than shallow water deposits; they are sun-cracked and rippled
in some extensive areas. Equally there appears to be no valid
reason for supposing that the marine limestones are of deep sea
origin; at times, they are sun-cracked and wave-marked; at others
they are distinctly near-shore deposits; yet the fauna, character-
izing them at a distance from the shore, is present and the in-
dividuals are of such size as to show that the conditions were not
unfavorable. The only ground for asserting that the limestones are
of deep sea origin is the time-honored conception that presence of
certain groups of invertebrates is proof that the water was deep.
This conception itself stands seriously in need of proof.

Mopbe oF DEPOSITION.

Before taking up the study of coal beds, it is necessary to ascer-
tain, if possible, the conditions under which the deposits already
considered were laid down. Three possible hypotheses have been
suggested.

The basin may have been a Mediterranean sea, 250 miles wide
and more than 800 miles long, 4,000 to 6,000 feet deep, into which
streams delivered débris until the whole area was filled.

The basin, originally almost wholly dry land, was brought under
water by gradual but interrupted subsidence; inflowing streams
formed deltas which eventually filled the basin.

The water-area, during most of the period, may have been com-
paratively insignificant. The two longitudinal valleys may have
had each its own important river, with tributaries, which formed
dejection cones, to be remodeled by floods and by meanders of the
streams, while the whole region was subsiding slowly though not
continuously.

The first hypothesis is altogether improbable. It involves the
conception that the surface of the sea within the basin was at tide

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 525

level and that the water was excluded finally by deposition of
mineral matter on the bottom. Under such conditions, it would be
impossible to account for the formation of fossiliferous limestones
and shales within narrow well-defined areas at 2,000 feet below the
water-surface. It would be impossible to account for the distribu-
tion of conglomerates and pebble rocks, almost free from argil-
laceous matter, over great areas in the central parts of the basin,
100 or more miles from the shore and at a depth of several thousand
feet below the surface. It would be impossible to explain the
occurrence of sun cracks, ripple marks and clumps of plants in situ,
which are found at so many horizons throughout the column. It
would be almost impossible to discover a source for the material,
which has filled this vast basin of not less than 200,000 square miles
to a depth of 4,000 to not less than 6,000 feet. The Appalachian
land at the north would have been very narrow, for Carboniferous
beds, with coal, were forming in New England less than 175 miles
away at the east; the lowland of Cincinnatia separated the basin
from the Indiana region where coal deposits were forming, no more
than 175 miles distant; while, at the northwest, the Michigan area
was filling, at less distance away. The land area would be insignifi-
cant on all sides except due north; but one cannot accept that as the
source, unless willing to assign to the Pennsylvanian a duration
which would stagger the credulity of even the most generous geolo-
gist. The suggestion that the Appalachian basin was bounded at
the east by a great fault seems to be inadmissible for there is no
evidence that the fault exists. The Appalachian system of folding
originated far back in the Palzozoic and continued through the
Devonian and Carboniferous. Its faults with insignificant excep-
tion are overthrusts toward the west; but such overthrusts cannot
explain the origin of the basin, which could be formed, if formed
by a fault, only by a normal fault with hade toward the west.

Each of the other suggestions, somewhat modified, would seem
competent to explain the phenomena; but this statement is general.
In discussing a matter of this kind, one must endeavor to gain a
birdseye view of the whole area, for a problem so vast in extent
cannot be studied with a microscope. Many details have much

526 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

importance for the local observer but are without weight in a
discussion of the whole; while there are others, apparently unim-
portant, of which the importance cannot be exaggerated. The diffi-
culty is to distinguish essentials from non-essentials, for one’s
convictions long entertained exert much influence. In any case,
this personal equation must affect interpretation of the record, so
that the student must be content to offer only a contribution, leaving
to another the completion of the work. It is necessary first of all
to have a knowledge of present conditions.

Fayol,!* in the third part of his work, has discussed the con-
stitution, origin and formation of deltas, as bearing upon the deposit
of sedimentary rocks and has given the results of experiments in the
extensive settling vats at Commentry. After exposing the errors
into which geologists have been led by imperfect observations in too
limited areas, he proceeds to show that the lack of horizontality is
not necessarily evidence of dislocation, first referring to Weg-
mann’s'!® experiments on deposit of sediments upon an inclined
surface. Where beds have been laid down on such surfaces, they
pass by insensible slopes and curved lines from horizontality to
inclinations more or less strong and modeled on the surface below ;
the same beds, thick in the low parts, become thinner in rising and
imbricate with beds previously existing. In discussing delta de-
posits, one must distinguish carefully between the Alluvial or
emerged and the Neptunian or submerged portions. The material
may be either coarse or fine and the inclination may vary con-

siderably.

Lake deltas, such as are seen in alpine areas, have abrupt
affluents and the material near shore is coarse while fine stuff is
beyond. The slope at the upper edge is from 25 to 35 degrees

™*H. Fayol, Etudes sur le terrain houiller de Commentry. Litho-
logie et stratigraphie,”’ Saint-Etienne, 1887, pp. 356-531. Though the writer —
dissents energetically from many of Fayol’s conclusions, he cannot withhold
the expression of admiration for the manner in which that author has recorded
every observation, making the work a treasury house of suggestion and in-
formation. It can serve as a model. If other observers had followed the
same method, one engaged in preparation of a monograph would not have
so frequent occasion to lament the folly which led him to begin the work.

"8 Bull. Soc. Geol. de France, Vol. 7, 1850, p. 187.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 527

but decreases until it is the same with that of the lake bottom.
The slope at the shore varies greatly. In Lake Geneva, that of the
Thonon delta is 30 degrees, but that of the Rhone is much less. As
the delta advances, the river’s mouth is carried forward, while the
stream meanders and covers the Neptunian beds with alluvium,
which is horizontal. This formation of the alluvium is sometimes
so slow as not to interfere with vegetation, as in the chief deltas of
the Alps, those of the Reuss, Aar and Rhone. Fayol describes some
natural and artificial sections of lake deltas as illustrating the
amount of transported material: he says that, above the confluence
of the Aar and the Thiele, all lake basins have disappeared up to
the Jura; alluvium from the streams, the growth of peat bogs and
the work of man have converted them into prairies. Marine deltas
differ from those of lakes as the waves and tides interfere with regu-
lar development. The deltas of great rivers differ yet more; the
Neptunian deposits are more extensive and less inclined, there being
beds of several thousand square kilometers with inclination of only
some centimeters per meter. Little however is known respecting
these deltas, information having been obtained from only a few
borings. Enough, however, is known to prove that great deltas con-
tain deposits of vegetable matter, that the beds are less coarse and
less inclined than those of lacustrian origin. The arrangement of
the beds is closely dependent on the agitation of the water, which
in turn is dependent on the size of the basin:

After recounting his experiments, which he regarded as amply
confirming his conclusions respecting the origin of the Commentry
sands, shales and coal beds, Fayol returns to discuss the primitive
inclination of sedimentary rocks. As the doctrine of primitive
horizontality has had important influence in the formulation of
doctrines respecting the formation of coal beds, he thinks useful
to examine it to the foundation and to prove its falsity. He cites
Steno, Elie de Beaumont and Dufrenoy, Lyell and Credner in favor
_ of the doctrine, following the notes with a long quotation from
_ . Lyell*** in which are described the irregular and steeply inclined
deposits near Nice, which that author thinks had the present abrupt

™ C. Lyell, “ Elements of Geology,” sixth ed., New York, 1866, pp. 18, 10.

528 STEVENSON—THE FORMATION OF COAL BEDS, [Nov. 1,

dip from the beginning. Fayol regards this as an astonishing ex-
hibition of inconsistency on Lyell’s part, since the facts contradict
Lyell’s conclusions respecting original horizontality. The reader
can determine for himself, by consulting the original work, how
much reason exists for this exultation.

Fayol examines the facts. He asserts that Steno generalized
after having examined only the alluvial deposits. The arrangement
of pebbles parallel to the bedding is no proof of original hori-
zontality ; the slight average slope of the ocean bottom has no bear-
ing on deposits upon lake bottoms, for the latter often have a com-
paratively steep slope. The average of the Mediterranean bottom is
slight, yet deposits at the mouth of the Var have a dip of 25 to 30
degrees. Beds of vegetable matter are buried in the depths of
present deltas, and these have been considered as beds formed on
the surface above sea-level and carried down by subsidence, in some
cases, to a depth of 150 meters; but geologists have reasoned
erroneously from local accumulations of mud and peat in certain
deltas, for from those they have reasoned to accumulations of hun-
dreds of meters and to widespread oscillations of the surface. In
fine, he accepts de Lapparent’s conclusions respecting the stability
of the earth’s crust and fortifies his position by a long citation from
that author. He is convinced that he has destroyed two errors:
that the vegetable accumulations in delta deposits were of local
origin at the surface; that alternations of freshwater and marine
deposits are evidence of oscillation of the surface.

It is certain that no one can doubt the accuracy of Fayol’s re-
corded personal observations and many of his conclusions are in
full accord with those of other observers in the same field during
the last half century. But one must hesitate before accepting some
of the broader generalizations; they are clearly based on observa-
tions within too limited areas and apparently on a not wholly clear
understanding of what observers elsewhere have recorded. His
experiments on sedimentation were ingenious, were executed with

great skill and perseverance; they excel, in all respects, the earlier

investigations by Rozet, Wegmann, Constant-Prevost and others,
yet, in reading the record, one is reminded of Hebert’s remark that

a ee Ee PTs

t912.] STEVENSON—THE FORMATION OF COAL BEDS. 529

it is not always possible in experiment to reproduce the complicated
conditions existing in nature. It is well to learn the phenomena
as recorded by others at some localities mentioned by Fayol.

De Rosemont** says that between Aspremont and Nice one sees
the great mass of pebbles marking the Var delta. He notes some
features which appear to have been overlooked by Fayol. This
deposit extends northwardly to the rocks of Saint-Martin-du-Var,
westwardly to Cheiron and southwardly to the sea. The homo-
geneous mass is 350 to 400 meters thick and plunges beneath the
sea between Aspremont and Cheiron with a thickness of 500 meters.
It is rudely stratified and the dip varies from ro to 30 degrees. This
is the delta of the Var, which was formed prior to the Pliocene. It
is cut, almost half way to the bottom, by an old valley, now filled
with bluish and yellowish clays, holding a Pliocene fauna. Still
later, this Pliocene deposit was trenched along its whole length by
the present river Var, which flows in a deep channel-way. The
phenomena described by de Rosement show that, under certain
relations of land and sea, the first deposit was laid down; that under
other relations, the river dug for itself a broad channel-way in the
coarse deposit; that under still other relations, the valley was filled
with Pliocene muds; and that last of all, the whole mass being once
more above sea-level, the river cut its way down in the muds. It
may well be that the steep dips referred to by de Rosemont, Lyell
and Fayol originated in a way different from that conceived by the
last two authors.

The Aar delta, very small, was studied long ago by Martins,***
whose investigation was extremely detailed. The stream enters at
Meyringen an alluvial valley, along which it meanders for about 5
miles, until, in approaching Lake Brienz, it divides to form a petty
delta, 85 meters wide at the lake shore. Coarse material is dropped
at Meyringen and only fine stuff reaches the lake, where it forms a
submerged talus. The lake is 8 miles long and a mile and a half

™S A. de Rosemont, “Sur le delta du Var et la période pluviare,” Bull.
Soc. Geol. de France, III., Vol. V., 1877, p. 790.

*°C. Martins, “ Note sur le delta de l’Aar, a4 son embouchure dans le
lac de Brienz,” Bull. Soc. Geol. de France, I1., Vol. I1., 1845, pp. 118-122.

530 STEVENSON—THE FORMATION OF COAL BEDS. [Nov.1,

wide. The slope of the talus is 30 degrees near the shore but,
within 300 meters, it falls to 20 degrees. The surface is covered
with fine silicious sand, a homogeneous black mud, which also
covers the lake bottom throughout nearly the whole extent. The
talus must become continuous with the bottom deposit within three
fifths of a mile. Martins thinks that the slope of the delta proper
is 20 to 23 degrees, but is certain that the deposits are horizontal
in most of the area, for Martins found the bottom a level plain.

The delta of the Rhone, at the head of Lake Geneva, was studied
by De la Beche,??° whose results have been presented summarily
by Lyell. The lake is 37 miles long and 2'to 8 miles wide. The
depth is more‘’than that of Lake Brienz, varying from 20 to 160
fathoms, but only from 120 to 160 along the middle line. The
Rhone enters at the head as a turbid stream but is limpid at the
outlet. An old Roman town, at the shore 8 centuries ago, is now a
mile and a half inland. The older portion of the delta, above that
town, extends 5 or 6 miles and is a flat alluvial plain, little above
the stream and covered with swamps. The surface of the sub-
merged cone sinks very gradually and, at a mile and three quarters,
merges with the bottom of the lake, which is covered with river mud.
Fine and coarse materials alternate in the delta deposit. When
snows melt on the mountains, the increased flow brings down sand,
mud, vegetable matter and driftwood. In 8 centuries there has
accumulated a formation, perhaps 600 to 900 feet thick and nearly |
two miles long, with strata only slightly inclined. Conditions are
somewhat different where a delta is formed by a torrent having
great speed and a moderate quantity of water. The depth opposite
the torrent of Ripaille is 80 fathoms at half a mile from shore,
so that dip of strata in that minor delta must be not less than twice
as great as in that of the Rhone, or apparently not far from Io
degrees.

Gilbert’s'** descriptions and figures of the well-dissected deltas

”H. T. De la Beche, Edinb. Phil. Journ., Vol. I1., 1820, p. 107; C.
Lyell, “ Principles of Geology,’ New York, 1872, Vol. I., pp. 413-415.

5 G. K. Gilbert, “Lake Bonneville,’ U. S. Geol. Surv. Monographs,
Vol. I., 1890, p. 162.

1912] STEVENSON—THE FORMATION OF COAL BEDS. 531

of the Bonneville area show that the dips of layers are from
15 to 20 feet degrees near the top but they diminish downward, the
layers being disposed in sweeping parallel curves.

Dejection cones are merely deltas formed in the air. They are
all due to stream transportation, but they differ greatly in form.
More than 35 years ago, Gilbert advised that the broad deposits
with gentle slopes be termed alluvial fans, and that the term alluvial
cones be restricted to forms with steep slopes and formed by the
smaller rapid streams. The distinction is important, as confusion
of the types in descriptions seems to have caused some miscon-
ception, and the steep slopes described by some writers are seem-
ingly regarded as typical of all. Hogard*?* long ago found a slope
of 35 degrees in dejection cones composed of solid and angular
fragments. The greater slope is always shown by the less friable
material and cones made in air have much steeper slope than those
made in water. Surell’s’** studies in alpine areas were made in
search of means for protecting mountain areas from ravage by rain-
_ fall. He found that the slope of a dejection cone depended greatly
on the material of which it is composed. Mud usually accompanies
_ torrents and, where abundant, it is the first material gathered. If
the flow be thick, the mud surmounts obstacles and in drying, espe-
cially if calcareous, it becomes tough, preventing access of air and
destroying vegetation. If it carry blocks or pebbles, it cements them
and in this way many breccias were formed in the areas examined.
The steepness of the slope, on which a deposit may be laid down,
depends on fluidity of the mass. Gravels are deposited on slopes
not exceeding two and a half per cent.; fragments, 25 centimeters
in diameter or side, may be checked on slopes of two and a half to
5 per cent.; while blocks of half a cubic meter come to rest on a
slope of 5 to 8 per cent. If the blocks be very large, the current
drops them on rapids; in any event they are dropped at the head of

™ H. Hogard, “Quelques observations sur les nappes et cones d’eboule-
ment et sur les lits de déjection des torrents,” Bull. Soc. Geol. de France,
II., Vol. VIL., 1850, p. 186.

“A. Surell, “Etude sur les torrents des Hautes-Alpes,” 2d ed., 1870,
Vol. L, pp. 37-39.

532 STEVENSON—THE FORMATION OF COAL BEDS, (Nov. 1,

the fan. These usually fall from the mountains, and the torrents,
no matter how strong, cannot carry them far. The fine mud and
sand are not deposited along the torrents but are carried out by the
rivers to become fertile alluvium. He describes dejection cones
made by the Adour, Garonne and other streams, which have become
confluent and which are now gashed by diverging currents. In
discussing modes of protection against devastation by torrents,
Surell says that it is unnecessary to wait until the region has be-
come reforested. “It suffices if the surface be carpeted with grass,
brush or shrubs. The herbaceous plants and the brush, as com-
pletely as the trees, protect the surface of the soil, divide the
streams which tend to ravine it, prevent abrupt concentration of the
waters and absorb a certain portion in the spongy humus, which has
formed at their foot.” He devotes several pages to discussion of
this topic and gives a long list of plants which take possession of
devastated areas, some of them growing on naked rock.

One who examines only the illustrating figures given in text-
books is in danger of supposing that alluvial fans are of limited
extent, confined mostly to comparatively narrow river-valleys with
abrupt sides; but the conception would be erroneous. Gras,'** in
writing of alpine diluvium in southeastern France, says that a great
area between the Rhone and the first calcareous mountain of the
Alps is filled with clay, sand and pebbles. This thick mass extends
northward to beyond Dijon and the Sadne Valley and follows the
Rhone southward to the Mediterranean shore. The chief develop-
ment is in the Département of Isere, whence it becomes thinner
southward. He recognizes a vast dejection cone, or, better, alluvial
fan on the Dauphiny plain, whose summit is in the Grand Chartreuse
chain and whose base has a radius of 70 to 75 kilometers. The ma-
terials came from the mountains at the east and contain the charac-
teristic rocks of Mount Blane and other areas, so that they have
been transported far. The streams have heaped up pebbles to the
thickness of hundreds of meters.

Sc. Gras, “Sur la période quaternaire, dans le vallée du Rhone et sa
division en cinq époques distinctes,” Bull. Soc. Geol. de France, I1., Vol.

XIV., 1857, p. 207.

1912] STEVENSON—THE FORMATION OF COAL BEDS. 533

Drew’s’*® description of conditions along the upper Indus are
equally illustrative. Alluvial fans of tributary streams issuing
from the highlands have a radius of about a mile and a slope of
about 5 or 6 degrees, the extreme limits being 3 and 8 degrees.
There are, however, other fans with steeper slope, but they are not
alluvial—they originated as talus. The streams subdivide on the
fans, which increase with regular form as each stream yields its con-
tribution. The fans, originally independent, become united. Drew
gives a figure representing the conditions along 30 miles, where the
fans have become continuous and extend two miles into the valley.
The boundaries of the original fans are still recognizable. Rivers
cut across the deposits and the tributaries, in lowering the channels,
form new fans at their outlets.

The conditions described by Drew resemble those seen along the
upper Rhone. There one finds some cones with steep slopes at their
head near the wall, clearly of talus origin, for they were formed by
streams issuing from hanging gorges, like the very steep deltas in
some Italian lakes, described by Taylor.**® The high angle of slope
reported by some authors must be due to this mode of origin. Along
the upper Rhone as well as along the Adige, just as in the western
states, the slopes of the greater alluvial fans are usually gentle
almost throughout. Even the gigantic landslide, on the Adige near
Rovereto, has a gentle slope where cut by the railroad, though cov-
ered with huge blocks. The areal extent of the fans depends on the
width of the valley and the transporting power of the streams.
There would be notable variations in a slowly subsiding area, espe-
cially if the subsidence were not continuous.

One may link this type of deposit with that of the great river-
plains by a reference to conditions observed on the upper Nile.
Falconer?”* cites Russeger, who says that between Khartoum and
Sennaar, not less than 200 miles, the deposits are:

*5F. Drew, “Alluvial and Lacustrine Deposits and Glacial Records of
the Upper Indus Basin,” Quart. Journ. Geol. Soc., Vol. XXIX., 1873, pp.
8 oe B. Taylor, “ Post-Glacial changes of Altitude in the Italian and
Swiss Lakes,” Bull. Geol. Soc. Amer., Vol. 15, 1904, pp. 369-378.

=H. Falconer, “On the asserted Occurrence of Human Bones in the

ancient Fluviatile Deposits of the Nile and the Ganges,” Quart. Journ. Geol
Soc., Vol. 21, 1865, pp. 372-379.

534 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

I. River mud, like the Nile mud of Egypt, containing calcareo-
argillaceous concretions.

2. Friable, fine and coarse conglomerate of quartz grains and
pebbles,. cemented by ancient mud.

3. Ancient Nile mud, indurated, with embedded iron-shot clay,
silicious limestone and, in the ferruginous portions, marly con-
cretions. |

4. Fine and coarse conglomerate, cemented by ancient Nile mud
and calcareo-argillaceous matter. It is very hard. 3

5. Dark gray freshwater limestone.

The beds are horizontal and 30 to 36 feet deep. Vegetable
remains occur throughout, except in the uppermost bed; the whole
is of freshwater origin, the fauna consisting of species now living
in the Nile, accompanied by some land forms. These deposits are
in the region of widespread floods, whose great areal extent is due
to vegetation in the river channel, which the’ river cannot tear out.
The type of deposit is different below the first cataract. Newbold?**
says that at Thebes one can recognize mica spangles from granite
of the first cataract, but at Asfet in the Delta, the spangles are so
minute that they can hardly be recognized even with aid of a lens.
Pebbles are very rare in the delta area; but the composition and
texture of the deposit vary according to position, coarse material
being confined to the main channels and their borders; fine material
alone reaches the Mediterranean.

In examining the great delta regions in search of possible ex-
planation of conditions during Coal Measures times, one must not~
confine his attention to the lowland areas; he must consider also
the alluvial plains extending at times hundreds of miles above the
technical head of the delta, even to the region where tributaries
bring down coarse materials. The story is continuous from shore
to mountains.

The immense plain of eastern China is described’?® as curving
around the mountainous region of Shan-tung and as extending
southward from near Peking for about 700 miles with width of 150

* Lieut. Newbold, “On the Geology of Egypt,’ Quart. Journ. Geol. Soc.,

Vol. 4, 1848, pp. 341, 342.
pear K. Douglas, “ China,” Encyc. Brittan., oth ed., Vol. V., p. 630.

is 3!
=a)

[oo

} eee
eo"
ay

: ae
ai,
.
Seri,
te

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 535

to 500 miles. The greater part of this plain descends very gently
toward the sea and, being generally below the level of the Hoang-ho,
it is exposed to disastrous inundations attending the rise of that
river. The flood of 1911 is said to have covered an area 45 miles
wide and several hundreds of miles long. The plain is the work of
the Hoang-ho conjointly with the Yang-tse-kiang. It is a vast
swampy area, in great part devoted to rice culture. Pumpelly’®® has
shown that the Hoang-ho has shifted its course many times during
the historical period. A Chinese work, published in 1705, states
that the course of the river was regulated by Yu, which makes prob-
able that diking had been undertaken and the plain placed under
cultivation fully 2,000 years before the Christian era began. Pum-

_ pelly republished nine charts, showing changes in the channel-way

during 3,000 years. The stream is’ mighty, turbulent, subject to
enormous annual increase of volume, due to rainfall on the distant
Kuen-Luen mountains, and it has always been a source of terror to
the millions inhabiting the plains. Dikes have caused elevation of
the stream bed, which, prior to the last great change, was apparently
higher than the adjacent areas from Whang-ho to the mouth, a
distance of 400 miles. Before that change, which took place about
1850, the river flowed westwardly to the Yellow Sea, entering it
south from the Shan-tung peninsula, about 50 miles in the same
direction from Pei-chow or about 150 miles north from the Yang-
tse-kiang. The breach occurred near Fungpeh in Suchan and the
water flowed away to the Gulf of Pechele on the north side of the
Shang-tung area. The passage was by way of the Tat-sing river,
whose waters were increased to six times their former volume. The
new mouth is more than 350 miles west of north from the old one.
By 1858, the old mouth was dry; but in 1863, the river had not yet
determined its new channel and water still spread over great tracts
north from Tsinan, the capital of Shan-tung.

Blanford' states that the Ganges-Indus-Brahmapootra sini of
northern India embraces about 300,000 square miles and is from 90

™ R. Pumpelly, “ Geological Researches in China, Mongolia and Japan,”
Smithson. Contr., Vol. XV., No. 202, 1866, pp. 46 et seq.

*W. T. Blanford, “A Manual of the Geology of India,” Calcutta, 1879,
Pp. 391, 394, LX.

PROC. AMER. PHIL. SOC., LI. 207 H, PRINTED DEC. 16, 1912.

536 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

to nearly 300 miles wide. The lowest point on the divide between
the Indus and the Ganges is 924 feet above tide, but, in fact, there
is no dividing ridge between the two systems and a very trifling
change would divert the water from one side to the other—and very
probably such changes have occurred. No traces of marine condi-
tions appear in upper India since the early Tertiary. There is no
proof that the whole of the plain was at any time under water, nor
is there any proof that is was not. The Eocene sea occupied the
Indus valley to the foot of the Himalayas and extended eastward to
Kuchann. But thence to the Gano hills, no trace of marine condition
exists. If the Eocene sea occupied the Ganges area, it is strange
that no marine forms have been found. The same statement applies
to the Brahmapootra plain, which now is in great part too swampy
for cultivation. ;

Medlicott'*? says that the Lower and Middle Siwalik formations
are composed of immensely preponderating sandstone, with occa-
sional thick beds of red clay and rare, thin, discontinuous bands of
nodular earthy limestone—the sandstone itself being occasionally
calcareous. Conglomerates prevail in the Upper Siwalik and they
are often made up of the coarsest shingle, precisely like that in the
beds of the great Himalayan torrents. Brown clay occurs frequently
with the conglomerate and at times wholly displaces it. This clay,
even when pushed to the vertical, cannot be distinguished, in hand
specimens, from the recent plains-deposit and no doubt it was formed
in the same manner as alluvium. The sandstone of the zone is ex-
actly like the sand forming the banks of great rivers, but is more or
less consolidated. The suggestion that the Siwalik hills are merely
an upraised portion of the India plains was not wholly misleading.
At one time, the mass was supposed to be of marine origin—a relic
of the old notion that a water-basin was an essential condition for
extensive accumulation of deposits, and that a sea-margin was

needed for such a spread of shingle as is found in the Siwaliks. q |
The same opinion prevailed concerning the plains themselves. But a

the ocean had nothing to do with the matter. The mountain torrents
are laying down great masses of shingle and clay on the margins of

1H. B. Medlicott, ibid., pp. 524, 525, 541, 672.

a
a a

«eee el tel Dalat i ie ee

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 537

the plains; the thick sandstones and sandy clays of the Tertiary
are, in form and composition, similar to the actual deposits of the
great rivers. The vast extent of the alluvial fans is illustrated by
one example:

“In the range between the Jumna and the Ganges, clays are very sub-
ordinate and the conglomerates are formed of the very hardest quartzite
pebbles, just like the shingle now found in the great mountain torrents.
This portion of the range is, in fact, an ancient diluvial fan of the rivers
Tons, Jumna and Ganges. The Jumna, after its confluence with the Tons,
now flows very obliquely across the diin and passes through the outer range
far to the west of the point where it leaves the high mountains, having had
to double around the immense accumulation of hard materials it had form-
erly laid down in front of that gorge.”

The Indus is forming alluvial plains in several parts of its
valley within Ladak. Medlicott asserts that there is no difficulty
in distinguishing lake from alluvial deposits. The former are fine
laminated and horizontal; but the latter are irregular, coarse and
may or may not be horizontal.

The same author,’* in a later publication, remarks that the whole
plain seems to be covered deeply with alluvial deposits, for even
at Ambala, in the upper Indus region, a boring has shown alterna-
tions of sand, clay and gravel with some calcareous clay. The sands
are one to 41 feet thick; the clays, 3 to 40 feet; but the calcareous
beds are thin, none exceeding 2 feet. On the Jumna, within the
Gangetic area and at about the same distance from the Siwalik or
sub-Himalayan range, large bowlders were found at 40 feet, whereas
the largest fragment at Ambala is only five by two and a half inches
and pebbles of moderate size are not of frequent occurrence. It
is important to observe that no organic material has been found in
the deposits on either side of the divide. Borings and excavations
in all portions of the plain find the same alternation of sands and
clays. The “technical” head of the Ganges delta, as it now exists,
is where the Hoogly is set off, at 170 miles above Calcutta, which
is 70 miles from the sea; the nearest edge of the recent alluvial
plain is 80 miles west from that city—an immense area of level
strata. The submerged portion extends far into the sea and its

*8H. B. Medlicott, Rec. Geol. Surv. of India, Vol. XIV., 1881, pp. 220,
224, 225, 232, 234.

538 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

deposits are approximately horizontal. The depth of water in the
Bay of Bengal is small, but outside of the delta area, there is a
deep depression known as the “ Swatch of no ground.” All around
it, soundings give a depth of 5 to 10 fathoms, but in the “ Swatch”
that increases abruptly to 300 fathoms. Fergusson,’** cited by
Topley, has shown that this space is kept open by currents, which
may have kept it clear while the adjoining area was filling. In that
case, the alluvial deposit would be at least 1,800 feet thick. A bor-
ing at Calcutta has proved it to be not less than 481 feet.

Lyell?®* relates that at no place in the delta proper or for 400
miles from the sea does one see any gravel, the whole plain of Bengal
being overspread with Himalayan mud, homogeneous but becoming
more sandy near the hills and occasionally containing abundance of
land shells. Those who sail down the river in time of flood see
nothing but a sheet of water in every direction, except here and
there where the tops of trees emerge above its level. No reference
to vegetable matter is made by Lyell or by any other observer to
whose work the writer had had access—though the mud is exposed
in river cliffs, 80 feet high near Calcutta. Lyell mentions the
boring at Calcutta in which peat was pierced at 50 feet. Blanford,
in the work already cited (p. 400), says that this peat bed is found
at 20 to 30 feet from the surface in all excavations around the city
and that it seems to extend under a large area in the surrounding
country, having been met with in borings even to 35 miles south-
east and to 81 miles east by north. Lyell states that this was con-
sidered to be an old soil, carrying a vegetation similar to that of
the present Sundurbund. Logs and branches of red-colored wood
occur above and below the peat, so little changed as to be identi-
fiable, and they were recognized as the Soondri tree, now prevalent
at the foot of the delta. In this Calcutta boring, clay, sand and
pebbles were pierced at 120 feet and another forest bed was reached
at 380 feet, while the boring ended in beds of pebbles, sands and
bowlders. The conditions throughout suggest that, before sub- —

**W. Topley, “India,” Encyc. Brit., 9th ed., Vol. XII, p. 736.

*° C. Lyell, “ Principles of Geology,” 1872, Vol. I., pp. 476, 477; “ The
Geological Evidences of the Antiquity of Man,” New York, 1871, pp. 336,
337.

s

A

ont

i
eo

ma

i

Bi

a

: ae
=

a
——
: a
4 4
ae
% ¥

i 4
4

§

ES

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 539

sidence began, the area was diversified with hills and valleys, now
reduced to a common level by the mud deposit. One is not justified
in referring to the evidence respecting the peat accumulations as
unimportant; the observations embrace an area greater than that
of all the coal basins within central France.

But similar conditions exist elsewhere on the India peninsula.
Medlicott'** published with comments the notes made by G. E.
Ormiston during excavations for a government dock on Bombay
island, on the west coast of India. Ina space of about 30 acres, 382
trees and stumps were uncovered, of which 223 were erect. Some
of the prostrate stems were without roots, but others had been over-
thrown in place, for the roots were still partly embedded in the
soil. The stumps are rooted in a thin soil of decomposed basalt and
are surrounded by a stiff blue clay on which rests black marine mud,
4 to 5 feet thick. Stumps projecting above the clay into the black
mud have been drilled by Teredo; in some cases the holes pass
downward through the trunk towards the roots and are filled with
indurated clay. Medlicott states that the trees are Acacia catechu;
two drifted logs of teak wood were found in the clay. This clay
deposit must have been made very quietly, for a prostrate stem shows
its branches and even delicate twigs in place. The soil was very

_ thin and the roots spread out horizontally; the trees were large,

one of the prostrate trunks being 46 feet long. How far the forest
extends is unknown, as no investigations were made beyond the exca-
vation of 30 acres.

But while the region of the Ganges and Indus have been sub-
siding more or less since the late Tertiary, there have been local
elevations of no mean extent within recent time; and their charac-
ter is such as to leave no room for doubting that they had many
predecessors. Fergusson**’ notes the comparatively recent elevation
of the Madorpora Jungh, at whose southern extremity the city of
Dacca was built. This uplifted area is 75 miles long with an extreme
width of 35 miles and a héight of 100 feet on the west side toward
the Brahmapootra. Fergusson describes in detail the shiftings of

** Records Geol. Surv. of India, Vol. XIV., 1881, pp. 320-323.

*% J. Fergusson, “On Recent Changes in the Delta of the Ganges,” Quart.
Journ. Geol. Soc., Vol. X1X., 1863, pp. 320, 333-350.

540 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

the channel-ways in the delta region, which is covered with silt.
MacMurdo'* published in the Asiatic Journal an account of the
India earthquake of 1819. An extract was published in Edinburgh,
which has been utilized by Lyell. This earthquake was felt within
a radius of 1,000 miles from Bhooj, central in the Indus delta. The
previous depth of the shallow eastern arm of the river was only one
foot at ebb tide, but it was deepened to 18 feet; the village of
Sindree, farther up the stream, was submerged and a lagoon was
formed with area of 2,000 square miles. Immediately after the
shock an elevated area was observed at the northeast, where pre-
viously there had been a level plain. This, the Ullah Bund, is more
than 50 miles long, 16 miles wide and has an average height of 10
feet above the delta surface. The course of the Indus, as Lyell
related, was much unsettled during several years, but in 1826 the
river threw a great body of water into the eastern arm, which cut
through all artificial dams as well as the Ullah Bund itself. The
natural section, thus exposed, showed that the upraised land is of
delta material. By 1838, the Sindree lagoon had become almost
filled with detritus.
The area drained by the Po, the great plain of northern Italy,
has received voluminous treatment from many geologists. A sum-
mary description of the area was given by Collie,4*° who says that
the plain contains 11,000 square miles and that the mountain area,
drained by it, is 16,000 square miles. Borings in the plain show that
it is covered with approximately horizontal sand, clay and marsh
deposits. The river, in spite of the enormous mass of inorganic
materials brought down from the mountains, does little toward
aggrading the lower channel, as the load is deposited in lakes whence
clear water flows. The stream is thoroughly diked from Cremona
to the delta marshes, and the dikes are placed at some distance from
the channel, enabling the stream, when in flood, to overflow a con-
siderable space before reaching them. This intermediate space is

*8 Captain MacMurdo, “Account of the Earthquake which occurred in
India in June, 1819,” Edinb. Phil. Journ., Vol. IV., 1821, pp. 106-109; C.
Lyell, “ Principles of Geology,’ Vol. II., pp. 98-102.

1% GL. Collie, “ Basin of the Po River,” Bull. Geol. Soc. Amer., Vol.
15, 1904, pp. 566-568.

ie BT roma

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 541

covered in many places with willows and thick underbrush, so that
the current’s speed is reduced and there is little erosion of the
dikes. The deposits on the plain of the upper Po are irregular and
cross-bedded, consisting of cobbles, coarse gravel and pebbles with
occasional wedges of sand. At times, local deposits of stratified
silt and clay are seen, such as that near Turin, covering 40 acres.
The deposits are more regular along the lower Po, much of the
material being clay or fine sand, often laminated. In extended
exposures, long, flat lenses of sand are shown, which are enwrapped
by the finer sediments.

The plain of northern Italy receives drainage and deposits from
the Alps and Appenines by way of the Po and its tributaries; from
the Tyrolese Alps by way of the Adige; while smaller streams,
flowing directly to the Adriatic, contribute their share toward ex-
tension of the plain. Taramelli’*® has gathered the information
bearing on the development of the plain, with its sands, clays and
occasional coral limestones. At the beginning of the Pliocene, it
Was in great part dry land, for great valleys were excavated, in
which gravels were deposited. The topography, in its broader fea-
tures, was well-defined at that time. During the later Pliocene, the
region was invaded by the sea and deposits, termed marine Pliocene,
were laid down. These have been recognized in much of Italy,
which must have been an archipelago. But at the close of the Plio-
cene, irregular differential elevation took place, as appears from the
altitudes correlated by Taramelli. It is clear that, after the Miocene,
a great area was converted into dry land, to be brought again under
the sea, but afterwards to be elevated in some localities to 700
meters above that level, while in others it is still below it. These
Pliocene beds are the terraces of diluvial deposits.

De Collegno*** has shown the wide extent of pebbly and sandy
deposits in northern Italy and the relations of those deposits to the
rivers. On the plain of Milan, the pebbles are often consolidated
into a conglomerate, which is exposed along the river and in rail-

° T. Taramelli, “ L’Epoca glaciale in Italia,’ Atti Soc. Ital. Progr. Sci.,
Riunion IV., 1910, separate, pp. 5, 6.

** De Collegno, “ Note sur le terrain erratique du revers méridional des
Alpes,” Bull. Soc. Geol. de France, U1., Vol. II., 1845, pp. 284-286.

542 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

road excavations. He found that, south from Milan, the gravel is
too fine for use in maintaining the roads, whereas, north from the
city, ample material for that purpose is found just below the surface.
From Turin to Verceil, the bowlders rarely exceed 50 centimeters;
but, in ascending from Chivasso toward the valley of Aoste, by Ivrée,
one finds great blocks of 40 to 50 cubic meters. This deposit is
400 meters thick at Ivrée, where one often sees 100 meters of con-
glomerate; it is 60 to 80 meters thick on the Adda and some borings
on the left bank of the Po have been pushed 60 meters without pass-
ing through the detrital mass.

Martins and Gastaldi'*? remark that the alpine diluvium under-
lying moraine material is composed of pebbles, which decrease in
size as one leaves the Alps. At the foot of the mountains they have
a diameter of 40 to 50 centimeters, but at Turin they are rarely as
large as a man’s head. Small and large pebbles are present together
and are mingled with sand and gravel.

Tacconi'** studied collections from about 100 borings in and
around Pavia, which is at the junction of the Po and the Ticino. He
distinguished readily between the contributions made by those rivers,
for glaucophane characterizes the Po material and staurolite abounds
in that from the Ticino. Pebbles and gravels are wanting in the
exposed deposits, diluvial in the terraces but alluvial in the valley;
in some collections, however, especially in those from the deeper
borings, coarse sand and small pebbles are abundant. The usual
color of the sands is ashen-gray, but some specimens are yellowish,
the tint being due to alteration of ferruginous constituents. These
are from different depths and Tacconi conceives that these layers
of alluvium may have been exposed to the air for considerable
periods before burial under later deposits. The distribution of
minerals leads him to suppose that, during the diluvial epoch, the
great rivers, descending from the Alps, united in the Lombardy plain

™2C Martins et B. Gastaldi, “Essai sur les terrains superficiels de la _

vallée du Po, aux environs de Turin, comparés a eux de la plaine Suisse,”
Bull. Soc. Geol. de France, 11., Vol. VII., 1850, pp. 587-589.
“8 FE. Tacconi, “Sulla composizione mineralogica delle alluvioni consti-

tuenti il sottosuolo di Pavia e dintorni,’ Rendic. R. Ist. Lomb., I1., Vol. a j

XXXIV., 1901, pp. 873-881.

1912.} STEVENSON—THE FORMATION OF COAL BEDS. 543

and covered a vast area with water, so as to spread the mingled
sediment of many water courses over the whole.

The north-central portion of the Italian plain certainly resem-
bles closely a confluent flood-plain. The. Adige emerges from its
valley just above Domigliana and, before reaching Verona, it is flow-
ing in the broad plain. It has brought down immense quantities of
very coarse material; for many miles it flows on a thick bed of
pebbles, derived in great measure from the Tyrolese Alps. At Ala.
where the river enters Italy, bowlders, 2 feet in diameter, are not
uncommon, but the surface material of the flood plain is not coarse,
except along the lines of filled watercourses. West from Verona,
along the railroad there is no rock exposure, all is river detritus.
At many places, the cobbles are so large that the peasants gather
them for construction of fences; pebbles large and small are shown
in the railroad excavations between Verona and Milan, but they
are in sands; the lines of stream flow are not shown in any exca-
vation visible from the road. The material decreases in coarseness
very quickly toward the south. Pavia is about 30 miles south from
Milan, but no coarse material is found there; Piacenza is about 40
miles south from Brescia where the deposit is very coarse, but at
the former city the materials are fine. The Po has been crowded to
the south side of the plain, but it has changed its course many times
and the deserted channels are distinct.

Morlot maintained that advance of the plain into the Adriatic
has been continuous in spite of long slow subsidence and he asserted
that, within the historic period, this subsidence has amounted to
5 feet; but the grounds for his assertion have been disputed. Evi-
dence exists which cannot be disputed, which proves long continued
subsidence. Challaye'** reported that a boring made by Dagousse
at Venice on the Piazza-de-Santa-Maria-Formosa passed through
132 meters of sand, clay and peat. Micaceous sand prevailed to
the depth of 25 meters and beds of peat were pierced at 29, 48, 85,
_and 126 meters. He asserts that the peat in these beds is absolutely
the same as that forming now at several places within the lagoon.
Challaye finds evidence in this boring that, including the growth

™#C. A. Challaye, Bull. Soc. Geol. de France, I1., Vol. V., 1848, pp. 23, 24.

544 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

on the present surface, five forests have flourished on this spot.
Many borings have been made in this immediate area and the evi-
dence is consistent throughout. Tacconi’*® has discussed the record
of one, which was driven 197 meters without passing beyond the
clays and sands. Well-marked peat beds were found at 18.80,
29.15, 32.80, 46.50, 56.70, 86.80, 129.80, 151.50 and thin streaks
down to 165 meters. It is quite possible that some of the very
thin streaks of carbonaceous material may be composed of vegetable
matter brought down during floods, but the suggestion of similar
origin for the thicker deposits, as made by some writers, cannot be
entertained. In view of what is known respecting the ability of
floods to remove the plant cover, the suggestion must be regarded as
pure assumption; the Po of the present day is confined within
dikes, yet it cannot sweep the enclosed narrow flood plain clear of
willows and underbrush; there is no reason to suppose that the un-
confined stream was more efficient. Moreover, the material brought
up from the borings is peat, not a mere agglomeration of vegetable
material, but peat, such as now accumulates at the surface.
Tacconi emphasizes the fact that peat is more abundant in the upper
portion of the deposit, the important beds being within 18 and 59
meters; and he notes especially the bed at 18.80, which is 2.6 meters,
and that at 29.15, which is 6.25 meters thick, and, like some of the
others, contains wood. The lower beds are thinner and increasingly
impure, which leads him to suppose that conditions were less stable,
that the river courses were changed more frequently in the earlier
than in the later stages of deposit. The materials pierced by this
boring are mostly fine, only one layer of coarse stuff having been
found. The thickest clay bed is 8 meters and the thickest sand
deposit is 24 meters.

The Mississippi region has been described so minutely by many
authors that only passing reference to some details is necessary
here. The delta, as usually limited, begins at a little way above the
Red River of Louisiana, but in Tertiary times the water area~

“© E. Tacconi, “Sulla composizione mineralogica della sabbia di un

pozzo trivellato al lido di Venezia,’ Atti R. Ist. Veneto, Vol. LXX., 1o11,
pp. 655-665.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 545

teached almost to the mouth of the Ohio, so that the river bluffs
show Tertiary and Quaternary deposits. The broad space, covered
with alluvium, extends northward to St. Louis and is continuous
thence up the Missouri, which is the main stream, the upper Missis-
sippi being only a tributary. This alluvial area, subject to flood
prior to construction of levees, is 40 to 70 miles wide from the
mouth of the Ohio to the head of the delta, below which it expands
to a maximum of about 130 miles. The area contracts above the
Ohio, so that, along the Upper Mississippi and the Missouri, it
frequently is less than 5 miles wide.

The nature of the river bed varies. From the head of naviga-
tion to the mouth of Maria’s river, the Missouri, with velocity of
2.7 miles per hour, flows on loose gravel; but farther down in the
loess region the bed is shifting silt. In the lower course of the
Mississippi, the river has cut its way to the Tertiary beds, which for
long distances are swept clear of later sediments by the current.
But samples, taken from the bottom at many localities between the
Ohio and the Gulf, show that immense deposits of pure silicious
sand and fine gravel, wholly free from river mud, exist in the
channel-way. These are found below channel-chutes, at all angles
to the direction of flow, sometimes even parallel with it; but they
rarely extend from one side to the other. The velocity of the water
at such places is too great to permit much deposition but is insuffi-
cient to wash away the sand. The materials become finer as the
Gulf is approached. The bar at the mouth of Southwest pass is
of sand and mud, soft mud being inside and around the shoal,
while the surface material is much harder, containing much sand.
The bar at the mouth of South pass is chiefly sand with spots of
soit mud, but away from the shoal, the bottom is covered with soft
yellow and blue mud of the passes.

’ Studies were made in 1851 to ascertain whether or not material
was pushed along by the river. A keg was laid on the bed in such
fashion as to retain suspended matter while permitting unimpeded
flow of the water. Coarse sand with some clay was obtained at
many localities, while at others only coarse sand remained in the
keg. Near the mouth of Red River, at the head of the delta, the

Bi
be
‘e
i
.
a4
WY
r
a.
q
oo.
a
a
¥
eS.
5
3
a
ae
a
De.
a
..
4
: 7
a
Pos
33
.
‘Be
2
i ade
Z. be
sa
a
a.
et

oii sath ener anna LEE 8 CYS
5 aE

546 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

samples consisted of small gravel and coarse sand with: very little
clay. No coarse material is carried beyond New Orleans but
pebbles occur in the lower alluvium near that city and the bars at
the mouths of the passes show very distinctly the effect of sorting.
The source of the coarse material was not determined, but in any
event it is certain that the gravels had travelled hundreds of miles.'4*

The story has been continuous along the Mississippi since early
in the Tertiary. The river has made its valley in-the soft rocks
forming its bluffs, where successive deposits are exposed. In the
later Tertiary as well as in the alluvial deposits, one sees the cypress
swamps which at one time were at the surface. The erect stumps
and fallen trunks are present, the condition being wholly like that
in recent swamps, except that the trees are dead. Forested and
buried swamps are numerous and of great extent on the alluvial
plain below Red River, but their area has been diminished by drain-
age and the protection afforded by levees. The buried swamps, sup-
posed at one time to be composed of drifted vegetable matter, are
known now to be in situ. “

It is not always easy to draw the line between delta deposits and
those made on flood plains, as is evident from Medlicott’s observa-
tions on the Indo-Gangetic region. Belt’s'*’ studies in a portion of
the Siberian plain may be taken as complementary to those by
Medlicott, for they show how widely coarse material may be dis-
tributed by rivers. Leaving Ekaterinburg, he reached the level,
sandy region of the steppe within 60 miles and continued his journey
in east-southeast direction to Ischim, on a tributary of the Irtisch,
where the steppe wall, 80 feet high, is composed of sand without
pebbles and partly cross-bedded. Thence to Omsk on the Irtisch,
the plain is monotonous but at that city he saw a section showing
60 feet of the steppe deposit, in which the sand, at times cross-
bedded, contained lines of pebbles, none larger than a cherry, with 4
here and there broken shells of Cyrena fluminalis. At Omsk, he

“6 A. A. Humphreys and H. L. Abbot, “ Physics and Hydraulics of the

Mississippi River,’ 1876, pp. 45, 90, 92, 147, 673.
™ T. Belt, “The Steppes of es Quart. Journ. Geol. Soc., Vol.

XXX., 1874, pp. 490-498.

ae
=
:
“a
iti
oe
f
‘a
%

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 547

changed his course and ascended the river 253 miles to Pavlodav.
The numerous natural sections had the same structure and com-
position as at Omsk, except that the pebbles increased in number and
size, becoming as large as a walnut within 100 miles. The section

of the deposit at Pavlodav is

Feet.
1. Soil.
2. Stratified red sand, with lines of small gravel ................ 20
Sanat colored sandy ‘silt (o:02 65 Se es a eee ee a 8
4. Coarse, clean sand, with lines of small pebbles and one line of
SES ol | oes aA egg eR agp my econ rine Otg Pca! eR Sap eae See 15
5. Clayey silt, not laminated; fragments of bed rock in the lower
MON oc oa es ch ces res enes oases ccc vece saa Crepe eee et TT: 6

Testing on magnesian limestone. The river at this place flowed on
the edge of an alluvial plain 6 miles wide. He crossed at Pavlodav
and travelled southwest seeking the source of the pebbles. At
about 60 miles from that city, his wheel jolted on the first stone
encountered during the ride of nearly 1,000 miles. Thencefor-
ward, angular fragments of quartz were abundant and within a
short distance he reached exposures of crystalline rocks. Belt was
inclined to believe that ice had impounded the fresh water into a
lake, but Ansted had asked, whence came the water to make the
freshwater lake of nearly 3,000,000 square miles, in which the steppe
deposits were laid down, and also, if there had been the lake, what
has become of the water. Ramsay*** conceived that, if we could
imagine the vast flat territory of Siberia with its mighty rivers facing
south to a sub-tropical sea, we would have something like the
Carboniferous. Coal beds do not indicate old lakes but continental
areas, through which rivers meandered.

Reference was made on an earlier page to Kuntze’s**® description
of conditions in the Paraguayan region, but other writers have
gone into more detail respecting some features requiring considera-
tion here. Church’® says that a vast area in the Plata region is

™ G. E. Church, “ Argentine Geography and the Ancient Pampean Sea,”
Rep. Brit. Assoc. Adv. Sci., for 1808, pp. 932-034.

“8 A. C. Ramsay, “ Physical Geology and Geography of Great Britain,”
5th ed., London, 1878, p. 139.
*° ©. Kuntze, “ Geogenetische Beitrage,” 1895, pp. 67, 68.

548 STEVENSON—THE FORMATION OF COAL BEDS. (Nov. 1,

covered to a depth of 20 to 100 feet with a reddish-yellow semi-
plastic earth, frequently marly with calcareous nodules, due to
percolation of calcareous water from the rivers. No stones or
pebbles are seen in this deposit, but it grows more sandy toward the
west. Church believes that these Pampean deposits were laid down
in a sea, 1,400 miles long and with an area of about 600,000 square
miles, this being the region now drained by the Paraguay and its
tributaries, the Pilcomayo, Bermejo and Salado at the west, and the
Lourencgo, Parana and Uraguay at the east. To this area he would
add about 115,000 square miles at the northwest, now drained into
the Amazon by the Madeira River, the areas being connected by a
narrow strait. This inland sea communicated with the ocean near
the present outlet of Rio de la Plata, but the area of deposit ex-
tended farther southward, almost to the latitude of Bahia Blanca.
The Pampean beds have been displaced and made irregular in some
places, but they are undisturbed in the southern portion of this
Gran Chaco region between the Bermejo and Salado Rivers.
Church estimates the present area of the muds at about 400,000
square miles and believes that they were deposited in shallow water.
The rivers are all very crooked, have very uncertain channels, at
times deserting the old course for a new one several miles away.
They frequently divide and subdivide so as to break the plain into
narrow but extensive islands.

Kerr'* has described the central part of the plain. The Ber-
mejo River, entering from the west, is 1,000 miles long but very
tortuous, the distance in direct line from its source to the Paraguay
River being not more than 450 miles. The speed is 4 to 5 miles
per hour and an enormous amount of solid matter is carried in
suspension—whence its name, “The Red.” In flood time, it is
almost liquid mud. The rainfall is very heavy and the maxima are
marked by inundations covering immense areas to the depth of
several feet. Areas subject to inundation are characterized by palm
forests, and one may always see on the trees a dark line at 3 to 5
feet above the ground, marking the flood level. The surface layer,

* J. G. Kerr, “The Gran Chaco,” Scot. Geogr. Mag., Vol. VIII., 1892,
PP. 74-77.

Ta ee an mn ne

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 549

deposited by the flood, divides during the dry season into pentagonal
columns. Remedi, in the same magazine for 1897, says that the
Bermejo drops its heavy load, fills its channel and is compelled fre-
quently to take a new direction. Trunks of trees, lodged on the
bottom, soon lead to formation of dams and to dyersion of the
stream.

The Chaco Oriental is north from the Pilcomayo River, which
enters the Paraguay near Asuncion, somewhat more than 100 miles
above the mouth of the Bermejo. This part of the area was studied
by Smith.*? The Paraguay River, north from Asuncion, is very
near the highland at the east, but west from the river the Chaco is
always low and the plain extends far inland to the high table land of
Bolivia, which is said to fall off abruptly toward the east. The
Chaco is covered with water during heavy rains. Above the mouth
of the Bermejo, the region is forested, but farther north are great
areas with only scattered Carauda palms and no other vegetation.
In lat. 21° 26’ 40” S., the river issues from a gorge through rocky
hills, which, toward the east, are well connected with the Brazilian
highlands; but, west from the river, there seems to be a series of
isolated hills rising from the Chaco, whose relation to the Bolivian
highlands is unknown, as the region has not been explored. Above
this gap, known as Fecho dos Morros, vegetation changes, the palms
disappear and one sees only open grass land with bushes and a
forest fringe on the river banks. These upper lands are covered
almost wholly when the river, which rises 50 feet, is in flood. All
this flat country from Fecho dos Morros to Villa Maria, a distance
of 400 miles, is subject to floods, which are greater toward the
north. At the mouth of Sao Lourengo, the area flooded during
high water is not less than 150 miles wide. The whole is a labyrinth
of lakes, ponds, swamps and channels in a grassy plain, there being
forests only near the river bank. It is more remarkable in this
respect than the Amazon flood plains, for even at low water one
fourth of the area is covered. When the river is highest, the whole

“ H. H. Smith in J. B. Hatcher, “ Origin of the Oligocene and Miocene

Deposits of the Great Plains,” Proc. Amer. Phil. Soc., Vol. XLI., 1902, pp.
113-131. The communication by Smith is pp. 128-130.

550 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

region is a vast lake with floating grass and weeds, only a few
islands remain here and there, on which wild animals find refuge.

Near Bahia Blanca, just beyond the limits of the Pampean
deposits, Darwin’®*® found pebbles of quartz on the coast which must
have travelled 45 miles. The Tertiary beds of Patagonia are capped
by a conglomerate, extending northward from the Strait of Magellan
about 800 miles with an average width of 200 miles and an average
thickness of 50 feet. Its porphyry pebbles came from the Cor-
dillera. The rock was derived from masses falling on old coast lines
and on river banks. The country is terraced, which leads Darwin
to see in the phenomena the influence of wave action on the rising
coast. -He describes graphically the clashing of fragments as they
are driven along by torrents in flood.

CONCLUSIONS.

That a sea or an ocean is needed for accumulation of thick sedi-
mentary deposits has been long a prevalent opinion among geologists.
It is a survival of the period when observation within narrow areas
provided a warp of fact to be filled in with a woof of fancy, when
cataclysms were thought the rule of nature and modern conditions
were believed to be exceptional in the earth’s history. It so pervades
geological literature that one, in disputing the doctrine, is very apt
to employ conventional phrases which concede it. When the study
of actual conditions had been prosecuted systematically, when phe-
nomena in great and widely separated areas had been ascertained
and compared, it became evident that the accepted doctrine was at
least defective. During the last quarter century, intimate study of
Quaternary deposits in Europe and America, as well as detailed
investigations in physical geography—due largely to the initiative
by W. M. Davis in America and A. Penck in Europe—has developed
anew the conception that, great as has been the work of ocean forces,
that of land forces has been vastly greater. As Ramsay saw for
Siberia and Medlicott for India, the activities of rivers in conveying
and distributing deposits far from the sea have brought about almost

°C. Darwin, “ Journal of Researches,” New York, 1846. Vol. I., pp. 96,
137, 138, 210.

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 551

inconceivably great results. Apparently the first distinct formula-
tion of the new presentation in America was made simultaneously
by Barrell and Grabau,*** each of whom utilized phenomena of the
Appalachian basin in illustration. Barrell’s elaborate memoir dis-
cusses the subject in all its phases and merits careful study. He
exhibits clearly the important part which river plains played in the
Appalachian history down to the close of the Carboniferous. Grabau
lays stress on the progressive overlap away from the source of
supply, which, when associated with other facts, becomes an impor-
tant element of the argument.

Study of the facts presented on the pages of this memoir has
forced the writer to a conclusion very different from that hoped for
when this investigation was begun.

The widespread horizontality of the Coal Measures deposits,
coarse and fine alike, recalls conditions observed on the Siberian
Steppe and other river regions. The folding of the beds proceeded
from a common cause, lateral pressure applied at the east. The
violence of plication decreases with notable regularity toward the
west, until in western Pennsylvania and in Ohio, along a line of
more than 100 miles, the folds become so gentle that they can be
traced only by close study. Dips of more than one degree are
unusual, while at times and for considerable distances the dip is
barely one half of a degree. The same condition exists in a great
part of West Virginia. The regular decrease in steepness of the
folds leads to the belief that originally the beds were, to all intents,
horizontal throughout the basin, the condition being that observed
on the great river plains of comparable extent. The rare occur-
rence of driftwood in the widespread deposits is characteristic not
only of the Coal Measures but also of vast river deposits, those of
the Amazon, as described by Brown, and of the Ganges as described
by Medlicott and Lyell. The long narrow areas of coarse to pebbly
sandstone, often with driftwood, recall the filled valleys of the
Sierra, described by LeConte, as well as filled deserted bows on the

7. Barrell, “ Relative Importance of Continental, Littoral and Marine
Sedimentation,” Journ. of Geol., Vol. XIV., 1906, pp. 337, 338, 530-541; A. W.
Grabau, “ Types of Sedimentary Overlap,” Bull. Geol. Soc. Amer., Vol. 17,
1906, pp. 635, 636.

PROC, AMER. PHIL. SOC., LI. 207 I, PRINTED DEC. 17, 1912.

552 STEVENSON—THE FORMATION OF COAL BEDS. [Nov. 1,

Mississippi and the filled channels so often disclosed when a stream
in flood cuts across its “bottom.” The distinct evidence of sorting
of materials in the red shales, where clay and sand are in dove-
tailing lenses, as well as in some conglomerates, where hardly
enough fine material remains to bind the pebbles, leaves little room
for doubt that the work was done by streams moving rapidly in
some cases, slowly in others. The pebbles are not flat, such as one
may find on a shore, but oval or sub-spherical, river pebbles, and
their gradual decrease in size as well as number in certain direc-
tions shows that the materials were rehandled many times. The
rounded pebbles of coal and carbonaceous shale prove equally with
those of quartz and sandstone that the deposits, whence they came,
cropped out and were exposed to attack by streams of water. The
marine limestones, with one exception, are in definite, long, narrow
and comparatively insignificant areas, and pass, at the borders, where
those remain for observation, into sandstone, chert or shale, the
condition being that of an estuary surrounded by lowland, whose
rivers bring a minimum of sediment. The shallowness of the water
by which sediment was distributed and the short duration of the
flooding are disclosed by wave marks, sun cracks and footprints of
animals, occurring at so many horizons, while the moderate depth
of the estuaries, in which limestone was formed, is apparent from
the shore conditions of the limestone. The testimony of the fauna
is confirmatory ; that life needed not deep water, for it persisted to
the very shore line in Ohio. Unconformability by erosion or by
overlap marks the contact of Pennsylvanian with the underlying
Mississippian in almost the whole basin, showing that the great part
was dry land.

The record appears to show that the Appalachian basin, between
the Alps-like Appalachia at the east and the low-lying Cincinnatia
at the west, was divided longitudinally by the flat-topped and only
moderately high Alleghania. The deepest portion of the eastern
valley lay close to the foot of Appalachia, whence the surface rose
westward almost inperceptibly to the crest of Alleghania. The
western valley extended as a plateau with its low line crossing eastern
‘Ohio in a south-southwest direction and deepening southwardly. The —
thickness of deposits in the two valleys is no index to the difference
‘in altitude of the surface; the eastern valley is coincident with the

1912.) STEVENSON—THE FORMATION OF COAL BEDS. 553

ancient trough of great subsidence, where deposits, throughout the
Palzozoic, attained great thickness and whence they decrease quickly
toward the west. The assertion of greater altitude for the western
valley is based on absence of all deposits earlier than those of the

- latest New. River in the northern half of the area.

Each basin had its longitudinal river. That of the east, rising
in the present confines of New York, flowed with low gradient for
more than 1,000 miles, receiving many tributaries from the bold
Appalachia and many, perhaps, unimportant tributaries from the
gentle slope at the west. Flowing at first close to Appalachia, it
was pressed constantly westward by alluvial fans and cones, which
became confluent and finally were modeled into a vast river plain.
The main stream was sluggish and often interrupted; during high
floods, the surface was covered broadly by a sheet of water and the
débris from different streams was mingled. The river in the west-
ern basin received no deébris-laden tributaries from east or west,
except at the extreme north; it was more rapid than that in the
east and pushed its coarse materials far southward. Progressive
overlaps show that subsidence prevailed throughout the basin until
the later stages, when it was confined to the contracting’ area of
deposit ; but it was differential and not constant. There were long
intervals of slight or no movement during which rivers, reduced to
base-level, distributed mostly fine material along their lower reaches.
At the close of the Pottsville, the valleys had been filled and Alle-
ghania had become buried ; the whole area of deposit was an irregu-
lar marshy plain. But the old drainage systems continued until near
the close of the Conemaugh and determined the lines of sea invasion ;
they disappeared only with changes in the topography, induced by
the forces which were eventually to obliterate the basin. During
the whole of the Pennsylvanian, a very great part of the basin was
near sea-level. After the close of the Pottsville, few portions of the
area of deposition seem to have been more than 300 feet above tide
and there is no reason to suppose that any portion was at any time
much more than 100 feet below tide.

The writer has become convinced that one must seek explanation
of the phenomena of the Appalachian basin in those of the great
river plains of modern times ; and the phenomena of the Appalachian
basin are those of coal regions elsewhere.

AN AUTOCOLLIMATING MOUNTING FOR A CONCAVE
GRATING,

By HORACE CLARK RICHARDS.
(Read April 20, 1912.)

“For most spectroscopic problems Rowland’s concave grating is
an almost ideal aid,’ says W. Voigt in a recent article.t Its focal
property enables us to dispense with lenses or mirrors, and so avoid
the accompanying aberration, absorption and scattering of the light,
and when once it is adjusted it is in focus for all orders of spectra.
The usual form of mounting, however, is perhaps not quite so ideal.
A large, perfectly dark room is required, the apparatus is heavy
and cumbersome, or else lacking in rigidity, and what is still more
important in some kinds of work, the position and direction of the
emergent light change with each change of wave-length. Moreover
it is not readily adapted to astronomical purposes.

The theory of the Rowland mounting is well known. If the
source is placed at any point of the circumference of a circle con-
structed on the radius of the grating as a diameter, in the plane
perpendicular to the ruling, the spectra will all be brought to a
focus at points on the same circle. Of these spectra Rowland
selected that which was at the center of curvature of the grating as
giving a normal spectrum of constant scale. The necessary con-
ditions were insured by placing the slit at the angle of a rectangular
track, along the two arms of which moved the grating and the
camera or eyepiece, the two rigidly connected by a rod of the
proper length (Fig. 1). It is easily seen that while the source is
fixed, the image is displaced in passing through the spectrum.

To avoid this objection, Lewis? interchanged the slit and camera,
and Abney® fixed the position of the grating and camera and

*W. Voigt, Phys. Zeits., 13, 217 (1912).

7 E. P. Lewis, Astrophys. Jour., 2, 1 (1895).
> W. deW. Abney, Phil. Trans., 177, I1., 457 (1886).

554

1912.] RICHARDS—AUTOCOLLIMATING MOUNTING. 555

mounted the slit on an arm pivoted at the center of the line join-
ing them (Fig. 2). These methods however require the source of
light to be movable, which is usually undesirable and in some cases
impracticable. Wadsworth* suggested several arrangements to over-
come the difficulty, using auxiliary mirrors and more or less com-
plicated mechanism, but these involve additional adjustments and
loss of light. It may be added that the grating has also been used

Fic. I.

with parallel light in astronomical work, but the aberration is much
greater than with Rowland’s mounting.®

The method here discussed is briefly that of autocollimation.
That part of the light is used which after being diffracted is re-
turned toward the slit. If therefore the slit is on Rowland’s circle,
the spectrum will be formed on the same circle and one point of it
will coincide with the slit (Fig. 3). The ingoing and outcoming
beams may be separated when necessary by the usual reflecting
prism, or by slightly tilting the grating. Thus a double slit may be

*F. L. O. Wadsworth, Astrophys. Jour., 2, 370 (1895).
*F. L. O. Wadsworth, Phil. Mag. (6), 6, 119 (1903).

556 RICHARDS—AUTOCOLLIMATING MOUNTING [April 20,

used, the light being sent through one slit and returned through the
other, The wave-length of the light which is returned through the
slit is given by the formula :

2e
A= -——-sin
Mm $

where e is the distance between consecutive rulings, ¢ the angle
made by the light with the grating-normal, and m the order of the
spectrum. It follows that at a given angle the order is twice that
which is produced at the center of curvature.

Fic, 2.

The principle of autocollimation has been often used with prism
spectroscopes since it was first suggested by Duboscq® and Littrow.”
It was first used with a plane grating by Liveing and Dewar,* and

is employed in many recent grating spectroscopes. It has however, — |

as far as I know, not been used with the concave grating, although

one of the chief objections to this form of mounting—the reflec- __

“See H. Kayser, “ Handbuch der Spectroscopie,” I., 511.
?O. v. Littrow, Wien. Ber., 47, I1., 26 (1863).
*G. D. Liveing and J. Dewar, Cambridge Proc., 4, 336 (1883).

1912.] FOR A CONCAVE GRATING. 557

tion from the inner surface of the collimating objective—would be
done away with. Perhaps the reason lies partly in the fact that the
focal length changes in passing through the spectra, so that not only
the inclination of the grating but also its distance from the slit
must be altered, and in addition the focal plane-is inclined to the
direction of the light by an angle which varies with the setting.
Thus in Fig. 3 the normals to the grating and to the spectrum make

G
89
a e

\

\

Fic. 3.

the same angle ¢ with the light, and the distance GS between grat-
ing and slit is p cos ¢, where p is the radius of the grating. As the
inclination of the grating is altered, that of the spectrum must be
altered by an equal amount, and the distance GS properly changed.®

* Since writing the above my attention has been called to an article by
A. Eagle (Astrophys. Jour., 31, 120, 1910) describing an autocollimating
mounting for a concave grating. The mounting has the disadvantages men-
tioned, namely that the distance of the grating and inclination of the camera
must be separately adjusted for each angle of incidence; disadvantages which
it is sought to overcome in the mounting described in this paper. The ad-
vantages of the autocollimating mounting are discussed at length by Mr.
Eagle with conclusions similar to those given here.

558 RICHARDS—AUTOCOLLIMATING MOUNTING _ [April 20,

These adjustments however may be automatically made in the
following manner. As in Rowland’s mounting, let the slit be fixed
at S (Fig. 3) and the grating be capable of sliding along the line
GS and also of rotating about a vertical axis passing through its
center. Now if two equal horizontal arms of length p/2 be pivoted
at G and S respectively and hinged together at their other ends at
O, and the arm OG be attached to the grating holder so as to be
parallel to the grating-normal, the grating will keep the proper
inclination as it slides along GS, for G and S are constrained to
remain on the Rowland circle. This is in fact exactly equivalent
to one half of a Rowland mounting. Moreover, if the camera is
mounted to rotate about a vertical axis through S, and the arm OS
is similarly attached normally to the photographic plate, the plate,
if bent as usual into the arc of the proper circle, will continue to fit
this circle throughout its motion and the spectrum will be in focus
on all parts.

In practice the arms OG and OS would be excessively long and
inconvenient, and would tend to bend the vertical axes at G and S.
They could of course be balanced by a pair of similar arms on the
other side, but the apparatus would then be still more cumbersome.
The same effect may however be attained by a series of links of the
“lazy-tongs”’ pattern, the total length when open being equal to the
radius of the grating (Fig. 4). The first and last link on one side
will correspond in direction to the arms OG and OS, and these are
fixed normal to the grating and plate respectively. It is obvious
that as either side may be used, all of the grating spectra become
available.

A wooden model of the apparatus has been constructed for use
with a six-foot grating, which exhibits the proposed arrangement
and which in spite of its crudity renders excellent service. A more
efficient mount is in process of construction. Sliding along a hori-
zontal track is a block carrying a vertical pin on which as an axis
turn the ends of the link motion and the platform for the grating.
This latter may be clamped in any position to either of the adjacent
link bars. At one end of the track is a fixed block with a similar
vertical axis. This axis carries the other end of the linkage, a

3
f:

ae
a

ss
ES
es

5

ag12.] FOR A CONCAVE GRATING. 559

platform for the camera or eyepiece, and a support for the slit.
‘These pieces may rotate independently’® and the camera platform
may be clamped to either bar.

The linkage is supported at its intersection by blocks which slide
along the track. The arms of one of the parallelograms should be
adjustable in length so that the framework may be exactly set to the
grating, and so that gratings of slightly different radius may be

tused on the same stand. The grating slider is moved by a rod or
screw running to the end of the track near the slit, the only function

a of the linkage being to produce the necessary rotation. There is
| therefore no great stress on the axes tending to bend them.

* Rotation of the slit is convenient in making the adjustments.

560 RICHARDS—AUTOCOLLIMATING MOUNTING | [April 20,

The grating and slit are provided with the usual adjustments
and also may be shifted on their platforms until their centers fall
exactly in the axes of rotation. The camera is mounted on its
platform on either side of the slit or preferably just above it, and
may be adjusted so as to bring the plate into coincidence with the
focal circle. If the latter position is used the grating must be
raised until its center is in a horizontal plane midway between the
slit and camera. For visual observations the plate holder may be
replaced by an eyepiece which may be fixed if mounted above the
slit, or if placed at one side is kept directed toward the grating by
a simple device. The slit is provided with a reflecting prism and is
made double so that light may be sent through one part and returned
through the other. It is thus possible to obtain a monochromatic

beam of high purity which will be sent always in the same direction. — 4

The apparatus is thus available for a threefold use: as a spectro-
graph, as an observing spectroscope, and as a monochromator ; and

it may be arranged so that no alteration need be made in passing q

from one to another of these forms.

The diagonal of any parallelogram of the linkage perpendicular
to the track is proportional to sin ¢, and therefore to the wave-
length. A scale of equal parts placed across any part of the link-
age perpendicular to the track, as at Sc (Fig. 4), will therefore give
an approximate measure of the wave-length. Moreover by properly
selecting the points on the bars across which the scale is placed, any
scale may be adjusted to read wave-lengths directly. A more open
scale may be placed on the track, but this will not be one of equal
parts.

As everything is supported on one track, the apparatus may be >
made quite rigid, and at the same time, with the smaller gratings at
least, portable. It will take up much less space than the other
mountings. It is also more convenient as everything is in reach at
the same time from the end of the track-source, slit, camera and
handle for controlling the position of the grating. There is but
one track to make true, and the other adjustments are no mor
difficult, and in some cases much easier, than in the Rowland E
mounting. A very desirable feature is that the slit, grating and

1912.] FOR A CONCAVE GRATING. 561

camera may be connected by a light-proof bellows or other en-
closure, so that the instrument may be used in an undarkened room.
This bellows may be supported partly upon the blocks which carry
the linkage.

The only part of the construction that may seem to offer diffi-
culty is in making the linkage true, but this should not prove a seri-
ous obstacle. All that is necessary is that the four arms of each
parallelogram shall be of equal length and that there shall be no
play at the joints, and it should easily be possible to do this with
sufficient accuracy. It may be added that the linkage, though ex-
tremely convenient, is not essential. The grating may be turned by
hand to the angle corresponding to the wave-length desired, and
then moved along the track until the light is focused on the slit.
The camera may then be rotated until the spectrum is in focus.* In
this way it may be possible to use gratings of much larger radius,
and so avoid the errors produced in ruling on a surface of too great
curvature.

The great compactness of the mounting makes it available for
use in astronomical spectroscopy, from which the concave grating is
practically barred when the Rowland mounting is used. The in-
strument may be mounted upon a telescope in the prolongation of
its axis so that the slit lies in the focal plane of the objective. In
the case of a star image the slit could be dispensed with, and the
astigmatism of the grating would produce a spectrum of finite
width. A more rigid and more convenient arrangement would be
to mount the guides for the grating upon the tube of the telescope
on the side opposite to the declination axis. The light could be
brought to a focus by the objective at the side of the field nearest
the slit and thrown upon the slit by totally reflecting prisms. No
harm would be done by any possible astigmatism which would
merely be added to that of the grating, and slight irregularities in
driving would be equally harmless.

It remains to consider the character of the spectra produced.
The chief advantages of Rowland’s mounting are that the spectrum
is normal and always of the same scale, and that the plate is per-

* This is in fact the arrangement described by Eagle (1. c.).

562 RICHARDS—AUTOCOLLIMATING MOUNTING _ [April 20,

pendicular to the direction of the light. In the autocollimating
mounting none of these conditions are fulfilled. These disadvan-
tages are shared by all prism spectrographs. They are however less
with the grating, and, a matter of great importance, the amount of ©
the variations may be readily calculated and allowed for.

The deviation of the spectrum from a normal one might seem to
be a serious objection, but as a matter of fact the deviation is much
less than might be thought. Thus on a plate of the usual size, the
maximum deviation from a normal scale is about one Angstrom,
and when using a comparison spectrum the maximum difference
between the corrections for two lines say ten Angstroms apart
would be about one twentieth of an Angstrom. Moreover the
deviation from the normal scale may be accurately allowed for,
being of the form

A S85

4p” °
s, and s, being the distance of the line in question from the two
lines selected to establish the scale, and A, the wave-length which >
is returned through the slit. This correction is the same as that
necessary when using a plane grating in the autocollimating position.

The varying amount of dispersion is an objection in some classes
of work, especially where plates are taken in different regions of
the spectrum. The scale varies as sec ¢, and therefore is some-
what larger than that of the same order in the normal mounting,
especially when the angle is large. Moreover, in a given direction
the order of the spectrum is doubled and therefore the dispersion ©
is more than twice as great. This is an important property of the
autocollimating mounting, since twice as many orders are avail-
able for observation. Thus with a 15,000 grating, four ons “
spectra may be observed instead of only two. ‘

The inclination of the photographic plate will sometimes be a :
more serious objection. Great care should be taken in its register. —
This objection as somewhat weakened by the increase of the dis-_
persion with the inclination, so that an error due to imperfect
register is proportional to sin ¢ instead of tan ¢. The error is
greatly reduced when using comparison spectra on the same plate.

1912.) FOR A CONCAVE GRATING. 563

Finally as to the definition. Kayser’* gives for the greatest
permissible length of a grating used in the customary position—4. e.,
the length when the difference in phase between the extreme rays
amounts to »—the expression

2e cot

and the same formula holds for the autocollimating position. Com-
paring the same order of spectra we see that as ¢ is less in the
second case (and therefore cot ¢ greater) the limiting length of
grating would be greater; so that a given grating will be farther
from this limiting value and hence will have better definition. The
grating is in fact in the position of minimum deviation, and the
aberration is equally divided between the incident and diffracted
beams and is therefore a minimum.

To sum up: the mounting here described differs from the usual
mounting for a concave grating by employing the principle of auto-
collimation. It possesses the advantages of the Rowland mount-
ing of having all spectra automatically in focus, but differs from
it in having greater compactness, convenience and rigidity. The
adjustments are easier and the necessity of a dark room is avoided.
The definition in the same order is somewhat greater, and twice
as many orders may be observed. The deviations of the spectrum
from the normal type are small and may be accurately allowed for.
The instrument may be readily adapted to work in astronomical
spectrography. ,

RANDAL MorcGan LaporaTtory OF PHYSICS,

University oF PENNSYLVANIA.

*H. Kayser, “Handbuch der Spectroscopie,” I., 458.

THE OBJECTIVE PRISM.

By EDWARD C. PICKERING,
(Read April 20, 1912.)

Three methods may be employed for studying the spectra of
the stars. First, the slit spectroscope. This is the method most
widely used. The light of the star is concentrated on the slit of ©
the spectroscope, and the linear spectrum widened, if necessary,
by a cylindrical lens, or by moving the image of the star. Secondly,
by the diffraction grating. As in the first method, the image of
the star is concentrated on the slit. But little use has been made
of this, and other diffraction methods in studying stellar spectra,
owing to the great loss of light. Third, the objective prism. A
prism of small angle is placed over the objective of the telescope,
and the image of every star in the field is thus spread out into a
linear spectrum. Any desired width may be given by allowing the
star to traverse the plate slowly, parallel to the edges of the prism. :
This method cannot well be applied to reflectors, or to other tele-
scopes of large size, owing to the size of prism required. Another
objection, in the case of reflectors, is that the prism must be placed
so far from the mirror that the definition is injured. These diffi
culties may be remedied by the focal plane spectroscope, in which —
the cone of rays from the star is rendered parallel by a concave
lens, then passed through a mirror, and brought to a focus by a
convex lens. All the light falling on a large mirror may thus be
concentrated into a small space, so that the spectrum of a very
faint star may be photographed. But little use has been made o:
this method, although it appears to have great possibilities.

The principal advantages of the objective prism are the sma
loss of light, and the large number of stars which may be photo-
graphed simultaneously. Also, that it is not necessary to follow
as. when photographing star charts. The best authorities cla

564

ame

a912.] PICKERING—THE OBJECTIVE PRISM. 565

that of the entire light entering the telescope, less than one per
cent. reaches the photographic plate, when a slit spectroscope is
used. The proportion of light transmitted by the objective prism
must be at least fifty times as great. In fact, the principal loss of
light is from the absorption of the objective. Consequently, far
fainter stars can be photographed with an objective prism than with
a slit spectroscope, the difference amounting to several magnitudes.
Another great advantage of the objective prism is that the spectra
of all the stars in the field of the telescope can be photographed
simultaneously, while with a slit spectroscope only one star can be
taken at a time. With the Harvard 8-inch doublet as many as three
or four hundred spectra are often photographed on a plate, includ-
ing all stars of the ninth a ei and brighter, in a region ten
degrees square.

A comparison spectrum cannot be used with an objective prism,
and it is accordingly difficult to obtain absolute wave-lengths,
which are needed to determine the motion of stars in the line of
sight. This constitutes the principal objection to the objective
prism. Various plans have been proposed to remedy this difficulty,
and how far they are successful will be described by another
speaker. This does not affect the ordinary measures of wave-
lengths, as hydrogen lines are present in the spectra of nearly all the
stars, and since these lines are affected by the motion, other lines
can be referred to them.

The first photograph of the lines in the spectra of the stars
was taken by Dr. Henry Draper of New York. In 1886, Mrs.
Draper established, at the Harvard College Observatory, the Henry
Draper Memorial, to prosecute the study of stellar spectra. The
objective prism has been used almost exclusively in this work. Two
photographic doublets of eight inches aperture have been mounted,
one at Cambridge, the other at Arequipa, Peru. With these the
entire sky has been covered many times. On one plate more than
a thousand spectra were classified. The late Williamina P. Flem-.
ing, Curator of astronomical photographs, from an examination of
these plates, discovered several thousand objects having peculiar
spectra. In fact, probably few bright objects of this class escaped

566 PICKERING—THE OBJECTIVE PRISM. [April 20,

her. Of the nineteen new stars, known to have appeared during
the progress of this work, she discovered ten, and five more were
found by other observers here. In this work also, the number of
stars of the peculiar class known as fifth type, has been increased
frorn seventeen to one hundred and eight.

For a more detailed study of the bright stars, prisms have been
attached to the 11-inch Draper Telescope at Cambridge, and to the
13-inch Boyden Telescope at Arequipa. Spectra of the brightest
stars have thus been obtained, six inches long, and half an inch
wide, showing at least five hundred lines. Prisms twenty-four
inches in diameter have been used with the Bruce Telescope in
Arequipa, and sixteen inches in diameter with the Metcalf Tele-
scope in Cambridge. The latest and largest investigation under-
taken here, as part of the Henry Draper Memorial, is a catalogue
giving the class of spectrum of a hundred thousand stars of the
eighth magnitude and brighter, shown on the photograph taken with
the 8-inch doublets. The classification of spectra used in the Draper
Memorial, has been accepted by the superintendents of the prin-
cipal nautical almanacs in their standard catalogue of three thou-
sand stars, and also at the leading observatories. The preparation
of the catalogue mentioned above has been undertaken by Mrs.
Fleming’s successor, Miss Annie J. Cannon, who has devoted a
large part of her time during the last fifteen years to the detailed
study of stellar spectra. Her classification of one thousand stellar
spectra published in Volume 28 of the Harvard Observatory
Annals, occupied her for three years. To complete, in a reasonable
time, a catalogue of one hundred thousand spectra evidently re-
quired the most careful study of the methods of “ scientific manage-
ment.” As a first step, her contribution to the work, which re-
quired the greatest skill, was reduced from one hundred to six per
cent., the remainder being performed as a great piece of routine
work, by less experienced assistants. The utmost care has been —
taken to maintain the highest degree of accuracy, the probable
error of the result for each star being about a tenth of one interval, —
corresponding to four one-hundredths of a stellar magnitude. Miss
Cannon is now classifying five thousand spectra a month, and has

1912.] PICKERING—THE OBJECTIVE PRISM. 567

already classified twenty-seven thousand spectra. The completed
catalogue will fill four of the quarto volumes of the Annals of the
observatory, of about two hundred and fifty pages each, and will
give the class of spectrum of nearly all of the stars of the eighth
magnitude and brighter, besides many others. Some of these are
so faint that they are not contained in the Cape Photographic
Durchmusterung.

_ Dr. Draper thus placed in our hands a wonderful tool for ana-
lyzing the stellar universe. His memorial furnishes not only a
permanent record in print of great extent, but, through the collec-
tion of photographs, will permit in the future a vastly greater
number of facts to be derived from them.

PROC. AMER, PHIL, SOC., LI, 207 J, PRINTED JAN. 17, 1913.

NOTES ON PLATES OF NOVA GEMINORUM OF 1912
TAKEN WITH THE BRUCE SPECTROGRAPH ‘
OF THE YERKES OBSERVATORY.

\
By STORRS B. BARRETT.

(Read April 20, 1912.)

1912, March 15. Displacement of sharp H and K lines indicates —
a velocity of 17 km. recession. This velocity does not differ grea
in all the photographs. Many titanium lines are represented by
absorption lines displaced about 7 A. toward the violet. The relative
brightness of the emission components of the hydrogen lines By 8,
as compared with the continuous spectrum is less than in all subs
quent plates. Se

March 21. The centers of the bright bands are now 2 A. toward
the red, as compared with 10 A. on March 15. Note the sharp
bright line at A 4,526. A second absorption band now accompani
each bright band.

March 24. Shows marked increase in intensity of the second
absorption band for each hydrogen line. os

March 29. Two bright maxima may be seen near the red edge of
the bright H&8 band. They are also present in He. A similar li
near the beginning of the bands is more difficult to see on the pri

March 30. There are two conspicuous bright maxima near the
beginning of the bright Hy band and one or two near the red ed; e.
On a short-exposure plate of April 1 three conspicuous
are seen near the red edge of 8, y and 8.

April 1 and 2. The hydrogen bands are concentrating sie
intensity toward the red edge. Note that there are two bright su
posed bands for each hydrogen line, one much longer and fa
than the other. This is first indicated plainly on March 29. —
broad bright band at A 4,640 has been gradually gathering inten

YERKES OBSERVATORY,
WitiAMs Bay, WIs.,
April 18th, 1912.
568

ce a

ol

RELATIONS BETWEEN THE SPECTRA AND OTHER
CHARACTERISTICS OF THE STARS.

By HENRY NORRIS RUSSELL.
(Read April 20, 1912.)

To the student of the stars, who attempts to arrange our exist-
ing knowledge in such a manner that some light may be thrown
upon the problems connected with stellar evolution, the spectral
classification developed at Harvard is of vital importance.

In such investigations, we must deal, if possible, not with single
instances, but with representative averages for groups of stars.
But really representative averages are often much harder to obtain
than might be supposed. Consider, for example, the actual bright-
ness of the stars. We can find this only when we know the dis-
tance of the star—and out of the hundreds of thousands of stars
which have been catalogued, we know the distance of barely five
hundred. But even if we knew the exact distances of the 6,000 or
more stars which are visible to the naked eye, we would not have
a fair sample of the general run of stars. To explain how this may
happen, let us suppose that there were only two kinds of stars,
one equal to the sun in brightness, and the other 100 times as
bright as the sun, and that these were distributed uniformly
through space, in the proportion of 100 stars of the fainter kind for
every one of the brighter. To be visible to the naked eye, a star
of the fainter sort must lie within about 55 light-years from the
sun; but all the stars of the brighter kind which lay within 550
light-years would be visible. We would therefore be searching for
these stars throughout a region of space whose volume was I,000
times greater than that to which our method of selection limited us

in picking out the fainter ones, and our list of naked-eye stars

would consequently contain ten stars of the brighter kind to every
one of the fainter—though if we could select instead the stars
569

570 RUSSELL—RELATIONS BETWEEN SPECTRA [April 20,

contained in a given region of space, we would find the disparity to
be 100 to 1 the other way. :

It is therefore a fortunate circumstance that the stars whose
distances have been measured have for the most part been chosen,
not on account of apparent brightness, but because of relatively
rapid proper-motion—which is found by experience to be a fairly
good indication of actual nearness to our system. These stars,
therefore, represent mainly the sun’s nearer neighbors, without
such an egregious discrimination in favor of stars of great actual
brightness as we have seen must occur if we choose our stars by
apparent brightness alone. Some traces of this discrimination will
still be unavoidable, for our knowledge of the proper-motions of the
fainter stars is still imperfect, and stops short at a little below the
ninth magnitude.

In addition to the stars whose parallax has been directly ob-
served, we have data for many more, which belong to clusters
whose distances have been found by combining data regarding their
proper-motions and radial velocities. In this case too the absence
of proper-motion data (which decide whether or not a star really
belongs to the cluster) prevents us from obtaining information —
about stars fainter than a certain limit; but otherwise our knowl-
edge is probably fairly complete.

In the present discussion of the relation between the spectral —
type and the real brightness of the stars, those directly measured
parallaxes have been employed which are confirmed by the work
of two or more observers, and also a few results obtained by single
observers whose work is known to be of high accuracy, and free
from sensible systematic errors. To these have been added the —
members of the Hyades, the Ursa Major group, the “61 Cygni
group” and the moving cluster in Scorpius discovered independ-
ently by Kapteyn, Eddington, and Benjamin Boss. The spectra of
a very large number of these stars have been determined at Har-
vard especially for this investigation, and the writer takes pleasure
in expressing his most hearty thanks to Professor Pickering ~“
Miss Cannon for this generous and invaluable aid.

The actual brightness of the stars may best be expressed by

1912.] AND OTHER CHARACTERISTICS OF STARS. 571

means of their “absolute magnitudes”—i. e., the stellar magni-
tudes which they would appear to have if each star was brought to
the standard distance of 32 light-years (corresponding to a parallax
_ of o”.10). The absolute magnitude of thé sun on this scale is
about 4.7.

On plotting these absolute magnitudes against the spectral types
it becomes immediately evident that most of the stars belong to a
__ series in which the fainter members are redder than the brighter,
__ while a few outstanding stars of each spectral class greatly exceed
in brightness those belonging to this series (except for class B, all
of whose stars are very bright). The existence of these two series
4 was first pointed out by Hertzsprung,’ who has called them by the
- _very convenient names of “giant” and “dwarf” stars—the former
- being of course the brighter.

a With the large amount of material now available, especially for
the dwarf stars, the results derived from the stars with directly
measured parallaxes and from those in the clusters are in striking
agreement, as is shown in Table I.

TABLE I.
MEAN ABsoLUTE MAGNITUDES OF Dwarr STARS.
; Stars with Measured Parallaxes. - Stars in Clusters. Formula.
= Spectrum.
Number. | Abs. Mag. Light. Number. | Abs. Mag. Light. Abs. Mag.

B-B3 21 —I.2 240. —I1.0
Bs-Bo 14 —1.7 380. 8 0.3 6:8: ef
2 A 6 0.7 42. 13 0.5 50. 0.5
— A2-As 6 I.9 14. 26 a9 17. 1.6
F 6 4.0 2.0 18 3-0 5.0 a

F5 7 3-6 2.9 7 3-3 3-7 3-8 -
F8 7 4:5 1.3 7 4-5 1.3 4-5
G 21 5-4 0.55 — 19 4-9 0.87 4-9
G5 II 5.6 0.46 9 5-5 0.50 6.0
K 16 6.6 0.18 10 6.3 0.24 7.1
K5 16 8.3 0.04 vi (6.6) (0.18) 8.2
Ma Bas) 9-7 0.01 9.3

In the above table, the quantity given under the heading “ Abso-
lute Magnitude” is the mean of the individual values derived from
the observed magnitude and parallax of each star in the corre-

* Zeitschrift fiir wissenschaftliche Photographie, Bd. V., p. 86, 1907.

572 RUSSELL—RELATIONS BETWEEN SPECTRA _ [April 20,

sponding group (giving half weight to a few stars of relatively un-
_ certain parallax or spectrum)—except for the stars of spectrum B
with directly measured parallaxes. In this case the parallaxes are
so small that a reliable value could be obtained only by taking the
mean of the observed magnitudes and parallaxes for the whole
group. These stars are of much greater apparent brightness than
most of those of class B, and their actual brightness may be
greater than the average for the class. No similar error of samp-
ling need be suspected in other cases, except for the faintest stars
in the clusters, where it is obvious in going over the lists that only
a few of the brightest stars of class K5 are above the limit of mag-
nitude at which our catalogues of stars belonging to the clusters
stop, and probable that some of the fainter stars of class K are
also excluded.

With the exceptions just explained, the results of the two inde-
pendent determinations from the measured parallaxes and the
clusters are in remarkably good arrangement, considering the small
numbers of stars in many of the groups. The absolute magni-
tudes of stars of the same spectral class in different clusters are
in equally good agréement. The relation between absolute magni-
tude and spectral type appears therefore to be independent of the
origin of the particular star or group of stars under consideration.

This relation seems to be very nearly linear, as is shown by the
last column of Table I., which gives for each spectral type an
absolute magnitude computed by the formula

Abs. Mag.=0.5-+2.2 (Sp.—A),

in which spectrum B is to be counted as o, A as 1, F as 2, etc. It
is of interest in this connection to remember that the difference of
the visual and photographic magnitudes of the stars is also nearly
a linear function of the spectral type.

The individual stars of each spectral class are remarkably simi-
lar in real brightness. Excluding those for which the parallax or
spectrum is considerably uncertain, there remain in all 218 stars.
Of these only 11, or 5 per cent. of the whole, differ more than two
magnitudes in absolute brightness from the value given by the ;

1912.] AND OTHER CHARACTERISTICS OF STARS. 573

formula for the corresponding spectral class, while 150, or 69 per
cent., have absolute magnitudes within one magnitude of the com-
puted value.

The series of stars so far discussed does not however comprise
all those in the heavens. Most of the stars of the first magnitude
have small parallaxes, and are of great absolute brightness; and
a study of proper-motions shows the same to be true of the naked-
eye stars in general. It follows that there exists another series of
stars, of great brightness, differing relatively little from one spectral
class to another. These “giant” stars can be seen at enormous dis-
tances, and consequently form a wholly disproportionate part of the
stars visible to the naked eye, as has been explained above. The
illustration there given greatly understates the actual situation for
the redder stars. The dwarf stars of class M, for example, are so
faint that not one of them is visible to the naked eye (though one
of them is the second nearest star in the heavens), and so the
naked-eye stars of this class are all “ giants.”

Relatively few of these giant stars are near enough for reliable
measures of parallax, and even for these it is safer to take the mean
observed parallaxes and magnitudes of groups of stars, to diminish
the effect of errors of observation. Confining ourselves as before
to parallaxes determined by two or more observers, or by observers
of high accuracy, the existing data may be summarized as follows.

TABLE IL
Mean Apsotute MacNitupes oF GIANT STARS.

Stars with Measured Parallaxes. Stars in Clusters.
Spectrum. M. Corresponding.
Num- can Mean Num-
Obs’d.
ber Mag Parallax. | 45. Mag! Liet ber. | Abs. Mag./ Light
B 14 2.2 0” .O17 —1.7 380 2I —I.2 240
AtoG 5 0.8 0 .033 —1.6 350
K a I.9 O .032 —0.5 130 It 0.3 60
K5 and M 4 I.4 O .047 —0.2 100 £ —3.8 2,600
(Antares)

The stars of class B are repeated here, since they may bes re-
garded as belonging to either series.

574 RUSSELL—RELATIONS BETWEEN SPECTRA _ [April 20,

Here again the stars whose parallaxes have been directly meas-
ured have been selected on account of their apparent brightness, and
are probably brighter than the average of all the giant stars. Indi-
vidual stars are in some cases still brighter; for example, Antares,
which is clearly shown by its proper-motion and radial velocity to
belong to the moving cluster in Scorpius, with a parallax of about
o”.o10, and hence must be fully 2,500 times as bright as the sun.
Canopus and Rigel, whose parallaxes are too small to measure, are,
probably equally bright or brighter. Whether there are many more
stars of such enormous luminosity, and, in general, whether the
giant stars of a given spectral class resemble one another in bright-
ness as closely as the dwarf stars do, cannot be determined from
existing data, at least of the kind considered here.

The giant and dwarf stars are fully separated only among the
spectral classes which follow the solar type in the Harvard classi-
fication. For class A the two series are intermingled, and even for
class F, where the average brightness of the two differs by four
magnitudes, it would be difficult to say whether a star of absolute
magnitude near 1.0 should be regarded as an unusually faint giant
star or an unusually bright dwarf. From class G onward, the
reality of the separation into two groups is unequivocally indicated
by the observational data.

As a practical application of the principles just developed, we
may consider the question of the distance of the Pleiades, a prob-
lem so far practically unsolved.

The spectra of the fainter stars which are known to belong to
the cluster have been determined at Harvard, through the kindness
of Professor Pickering and Miss Cannon. They exhibit a very con-
spicuous relation between apparent magnitude and spectral type, as
is shown in the first four columns of Table III.

These stars evidently belong to the series of dwarf stars. The
relative brightness of the different spectral classes is in good agree-
ment with that previously found, except that the stars of class B5
in the Pleiades appear to exceed those of class A in brightness as
much as those of class Bo to B3 do.among the stars previously
studied.

tor2.] AND OTHER CHARACTERISTICS OF STARS. 575

TABLE III.
Stars BELONGING TO THE PLEIADES.
; Abs. Mag. of :
Spectrum. | No. ge bag ore Stars in Other | Difference. ——-
' Clusters.
es 6
at 6 toe 4-7 —0.5 5.2 0” 0091
6.8
red : 7. wd 7.0 0.5 6.5 0.0050
A2 5 7-97
As 5 8.09 8.0 1.7 6.3 0.0055
FandFs5 5 8.88 8.9 2.5 6.4 0.0052
G 3 9-43 9-4 (3.6) (5.8) (0.0066)

The fifth column in the table gives the mean absolute magni-
tudes previously found for stars of similar spectral type in other
clusters (choosing the brighter half of those of class F, and a few
of the brightest stars of class G, since it is evident that the limita-
tion to stars above a given magnitude compels a similar choice in
the Pleiades). From the differences between the observed and
absolute magnitudes, we may compute the distances to which a
group of stars similar to those already studied must be removed in
order to appear equal in average brightness to the stars of the same
spectral class in the Pleiades. The hypothetical parallaxes so ob-
tained are given in the last column of the table. With the exception
of that derived from class B, they are in extraordinary agreement.
If they are treated as independent determinations of the parallax,
of equal weight, the resulting mean is 0.”0063 + 0”.0006, corre-
sponding to a distance of 500 light-years.

This estimate of the distance of the Pleiades depends upon the
assumption that, when we find in this cluster the same relation be-
tween the relative brightness of the stars of different spectral classes
that exists elsewhere, wherever the real brightness of the stars can
be investigated, the absolute brightness for each spectral class is
_ also approximately the same as elsewhere. This assumption is made
decidedly probable by the fact that it undoubtedly holds true for the
stars of the four clusters whose distances are known, and for more
than too other stars not belonging to clusters, with no serious
exceptions. It should however be remembered that no account has
been taken of possible absorption of light in space, and that there

576 RUSSELL—RELATIONS BETWEEN SPECTRA _ [April 20,

are unusually few very faint stars in the region of the Pleiades,
which has been explained as the result of partial opacity of the
nebulosity surrounding the cluster. Some of this nebulosity pre-
sumably lies between us and the stars of the cluster, and cuts off
a part of their light, which would make the distance computed on
the assumption that there was no absorption come out too great.
If such absorption exists, it should be possible to determine its
amount, and allow for it.

It is of obvious interest to inquire in what other respects besides
brightness the giant and dwarf stars of the same spectral class
differ from one another. One line of approach is furnished by the
visual binary stars. It is well known that, when the orbital ele-
ments and apparent brightness of a binary pair are given, we can
find what Professor Young calls the “ candle-power per ton ’’—more
exactly, the ratio L*/M? where L is the combined light of the pair,
and M the combined mass—without knowing the parallax. The
writer has recently shown? that this principle can be extended
by simple statistical methods to the stars known to be physically
connected whose orbits cannot yet be computed. In this way about
350 stars have been investigated, and it is found that they fall into
two series, similar in all respects to the giant and dwarf stars—
one marked by high luminosity per unit of mass, nearly the same
for all spectral classes, and the other by small luminosity per unit
of mass, diminishing very rapidly for the redder stars. By means
of the parallactic motions of these groups of stars, an approximate
estimate can be made of their distances, absolute magnitudes and
masses, with results which may be summarized as follows.

TABLE IV.
Mean ApsoLtute MAGNITUDES AND MASSES OF BINARY STARS.
Giant Stars. Dwarf Stars.
Spectrum. Spectrum. :
Number. | Abs. Mag. Mass. Number. | Abs. Mag. Mass.
B 44 —I.0 7 A-A5 57 Tia 5

A-A5 52 —1.0 13 F-F5 61 3.0 BS
F-G 26 —0.6 8 F8-G 32 4.7 I.4
K-M 38 —0.5 8 Gs-K 26 6.3 0.5
Ks—-M 83 9.0 0.8

? Science, N. S., vol. 34, p. 524, IQI10.
*From directly measured parallaxes.

1912.] AND OTHER CHARACTERISTICS OF STARS. 577

The mean absolute magnitudes agree almost perfectly with those
already derived for other groups of stars, showing that we have
come again upon just the same giant and dwarf stars in still a dif-
ferent way. The computed masses, although subject to errors
which may in some cases be as great as 50 per cent., show that the
brighter stars are more massive than the fainter, but that the dif-
ferences in mass are small compared with those in luminosity.

We may go farther with the aid of the information regarding
stellar densities which can be obtained from the eclipsing variables,
which are mostly of classes B and A. The average density of the
eclipsing variables of class B is about one seventh of the Sun’s
density. We may therefore estimate that a typical star of the class,
with seven times the sun’s mass, is between three and four times the
sun’s diameter, and has about 15 times his superficial area. But we
have already found that such a star, on the average, gives out more
than 200 times as much light as the sun. Hence its surface bright-
ness must be about 15 times as great as that of the sun. In the
same way it is found that stars of class A must exceed the sun
five-fold in surface intensity. On the other hand, the faint stars of
classes K5 and M give off on the average about 1/100 of the sun’s
light, with masses exceeding half the sun’s. Even if they were as
dense as platinum, their surface brightness could not exceed 1/15
that of the sun.

This diminution of surface brightness with increasing redness,
which has been proved to exist among the dwarf stars, is in obvious
agreement with the hypothesis (now well established on spectro-
scopic grounds) that the principal cause of the differences between
the spectral classes is to be found in differences in the effective
surface temperatures of the stars; and the numerical results here
obtained are in good agreement with those computed by Planck’s
formula from the effective temperatures derived by Wilsing and
Scheiner from their study of the distribution of energy in the
visible spectrum.

That the same law of diminution of the surface brightness with
increasing redness holds true among the giant stars is highly prob-
able, for giant and dwarf stars of the same spectral class are almost

578 RUSSELL—RELATIONS BETWEEN SPECTRA _ [April 20, ~

exactly alike in color and spectrum. If this is true, the giant stars,
which are nearly equal in mass and brightness for all spectral types,
must decrease very rapidly in density with increasing redness. If
the relative surface brightness of classes B, G, and M is as given
above, it is easy to show that the average density of the giant stars
of class G must be about 1/40 of those of class B, or about 1/250
of the sun’s density, and that the density of the giant stars of class
M must average only about 1/15,000 of that of the sun. There is
no escape from this conclusion unless we assume that the relation
between spectral type and surface brightness is radically different
for the giant and dwarf stars, in spite of the practical identity of
the lines in their spectra and the distribution of energy in the con-
tinuous background. |

The nature of the connection which class B forms between the
two series is now evident. If all the stars are arranged in order of
increasing density, the series begins with the giant stars of class
M, runs through the giant stars to class B, and then, with still in-
creasing density, through the dwarf stars, past those which so
closely resemble the sun, to the faint red stars.

This arrangement is in striking accordance with the theoretical
behavior which a mass of gas, of stellar order of magnitude, might
be expected to exhibit if left to its own gravitation and radiation,
at a very low initial density. While the density remains low, the
ordinary “gas laws” will be very approximately obeyed, and, in
accordance with Lane’s law, the temperature must rise in order that
the body may remain in equilibrium as its radius diminishes. At
first the central temperature increases in inverse ratio to the radius,
and that of the radiating layers near the surface also rises, though
more slowly (because we see less deeply into the star as it becomes
denser). As the density of the gas increases further, it must become
more difficultly compressible than the simple gas laws indicate; and
internal equilibrium can be maintained with a smaller rise of tem-
perature after contraction. The temperature will finally reach a
maximum, and the star, now very dense, will cool at last almost like
a solid body, but more slowly, for contraction will still take place to
some extent, and supply heat to replace much of that lost by
radiation.

1912.] AND OTHER CHARACTERISTICS OF STARS. 579

The highest temperature will be attained at a density for which
the departures from the gas laws are already considerable, but prob-
ably long before the density becomes as great as that of water.

The density of the stars of classes B and A (which all lines of
evidence show to be the hottest) is actually found to average about
one fifth that of water, that is, of just the order of magnitude pre-
dicted by this theory. It appears therefore to be a good working
hypothesis that the giant and dwarf stars represent different stages
in stellar evolution, the former, of great brightness and low density,
being stars effectively young, growing hotter and whiter; while the
latter, of small brightness and high density, are relatively old stars,
past their prime, and growing colder and redder. The stars of class
B, and probably many of those of class A as well, are in the prime
of life, and form the connecting link between the two kinds of
red stars.

Princeton UNIversiry OBSERVATORY,
May 25, 1912.

SOME FORMER MEMBERS OF THE AMERICAN
PHILOSOPHICAL SOCIETY.

By THOMAS WILLING BALCH.
(Read April 18, 1912.)

The American Philosophical Society, the oldest learned society
on this side of the Atlantic, and one of the most ancient in the world,
was fortunate in its founder in a double sense. Franklin was not
only a man of much learning and active in his advancement of
“useful knowledge,” but also he embodied in his own career the
three classes of men from which most of our membership has been
recruited since the founding of this society, whether we take it to
begin with the founding of the Junto in 1727, as Du Ponceau so
ably maintains, or whether we place it as late as 1743. Franklin
was a statesman, as his activites at Paris and London and here in
Philadelphia sufficiently attest.2 He was a scientist, as his numerous
scientific discoveries prove, and he was a man of letters, as his papers
abundantly show.* In the treaty negotiated in 1785 by Franklin for
America with the then small kingdom of Prussia, two members of the

1Joseph G. Rosengarten, “The American Philosophical Society,” Phila-
delphia, 1909, pp. 13-14.

*In 1780, before the adoption of the Constitution of the United States
and when Pennsylvania was still an independent State at war with Great
Britain, the General Assembly of Pennsylvania granted a most liberal charter
to the Society which contains the following unique provision:

“That it shall and may be lawful for the said Society by their proper
officers, at all times, whether in peace or war, to correspond with learned
Societies as well as individual learned men, of any nation or country, upon
matters merely belonging to the business of the said Society, such as the
mutual communication of their discoveries and proceedings in Philosophy —
and Science; the procuring books, apparatus, natural curiosities, and such
other articles of intelligence as are usually exchanged between learned bodies —
for furthering their common pursuits; Provided always, that such corre- —
spondence of the said Society be at all times open to the inspection of the
Supreme Executive Council of this Commonwealth.”

> The society possesses seventy-eight per cent. of Franklin’s known papers.

580

1912.] BALCH—SOME FORMER MEMBERS. 581

brotherhood of nations agreed to abolish privateering between them-
selves. In that early step looking to free humanity from legalized
sea pirates Franklin aided to inaugurate that aim of our American
diplomacy that for a century and a quarter has pressed—and not
without success, either—towards a greater and greater immunity
from capture of private property on the high seas with resulting
advantages to all humanity.* And of all three of these classes of
men represented by the founder of the society himself, the society
has upon its rolls, great and honored names.

Of statesmen, George Washington was a member of the Amer-
ican Philosophical Society. When in the usual course of events, his
death was announced, the society adopted a resolution directing its
members to wear crape on their left arm for thirty days, as a mark
of respect, and commissioned Gilbert Stuart to paint his portrait
for its hall. This portrait replica still hangs in the hall of the
society, and since the society is a corporation, the picture is one of
the very few still in the possession of its original owner. Thomas
Jefferson, who was twice president of the Union, not only can be
claimed by us as a member, but also as our president for a number
of years. Not the least of the services that Jefferson rendered to
mankind was the work that he did to advance the law of neutrality
in a liberal and enlightened way. For, as the distinguished British
international jurisconsult, Mr. Westlake—the holder for twenty
years of the Whewell chair at Cambridge University, and an ex-
judge of The Hague International Court (1900-1906)—has pointed
out in his treatise on “ International Law,”® the position that Jeffer-
son as secretary of state in Washington’s administration took on the
rules of the law of nations involved in the efforts of the young
American republic to maintain its neutrality during the war then in
progress between Great Britain and France, the two most powerful

“Henry Wheaton, edited by R. H. Dana, “International Law,” Boston,
1866; Emile de Laveleye, “Du respect de la propriété privée sur mer en temps
de guerre” (Revue de Droit International), Brussells, 1875; John Westlake,
“International Law,” Cambridge University Press, 1907; Ernest Nys, “Le
Droit International,” Brussells, 1904-6; “Les Etats-Unis et le Droit des Gens,”
Brussells, 1908; J. de Louter, “ Het Stellig Volkenrecht,’” The Hague, 1910.

*John Westlake, “ International Law,” Cambridge University Press, 1907,
Volume II., pages 175-176.

582 BALCH—SOME FORMER MEMBERS. [April 18,

nations of that day in Europe, exercised a powerful influence towards
shaping the law of neutrality as it is to-day. Jefferson took ad-
vanced ground, both with France and Great Britain, on many of the
questions that arose at that time. And the principles for which he
then contended, several of them then hardly thought of, much less
universally recognized, by nations, have in the course of a century
become gradually imbedded into the acknowledged law of nations.®

Grover Cleveland, too, who stood as immovable as Gibraltar be-
tween a nation crazed by a generation of vicious financial legislation
_and the disasters and burdens of a debased currency into which it
wished to plunge with the blind hope of curing the ills from which
it suffered, made a third of our members whose fame as a great
president of the United States has reached tothe uttermost parts of
the earth. Many other notable political men who have helped to
shape the history of our country were members, such men as John
Dickinson, Albert Gallatin, John Adams, Alexander Hamilton,
Thomas Willing, Robert Morris, Charles Thomson, Francis Light-
foot Lee, DeWitt Clinton, John Quincy Adams, Alexander James
Dallas, George Mifflin Dallas, Manasseh Cutler, Charles Jared In-
gersoll, Nicholas Biddle, Robert C. Winthrop, Thomas Francis
Bayard and Carl Schurz. And of foreigners who led active and
important political lives many have been members: such men as the ©
Count de Vergennes, the Marquis de la Fayette, George Douglas
Campbell, Eighth Duke of Argyle, and William Ewart Gladstone,
the latter two of whom both made their mark in the world of letters.

We have had among our membership a few representatives of
the Fine Arts. And in this group it is gratifying to the local pride

° The society is fortunate in possessing an original imprint of the Declara-_

tion of Independence as well as a draft copy of the declaration in Jefferson’s
own hand, and many manuscripts of Indian vocabularies, most of them
collected by Jefferson.

Dr. Holland possesses the diploma that the Royal Physicat Society of
Edinburgh—which was instituted in 1771 and confirmed by royal authority in
1788—awarded at Edinburgh on April 12, 1799, to Thomas Jefferson when
that society elected him an Honorary Fellow. In the diploma Jefferson is
addressed as President of the United States, though he was really Vice- —
President. At that time the Vice-President was the man who received the
second highest vote, and it was the custom abroad to address the Vice-
President as President.

1912.] BALCH—SOME FORMER MEMBERS. 583

of the home of our society that the first admitted to our ranks was
a Pennsylvanian by birth, Benjamin West. He was elected on June
10, 1768. By the generosity of Colonel Joseph Shippen, himself a
member of this society, who served under General Forbes in the
capture of Fort du Quesne (1758), Andrew Allen, and the kind aid
of other friends, West, after studying in this country, was enabled
to study in Europe. Before his death, West had the pleasure of
knowing that he had gained an international reputation. Another
painter who was a fellow member, John Trumbull, a commissioner
appointed by Washington to act under Article VII. of Jay’s Treaty
in the settlement of claims of American citizens against Great
Britain, has left to America many a historic canvas. Charles Wilson
Peale and Robert Edge Pine were both elected July 21, 1786. Peale
was the founder of the Pennsylvania Academy of the Fine Arts, of
which another of our members and a leading citizen of Philadelphia,
George Clymer, signer of the Declaration of Independence, was
chosen in 1805 the first president. Robert Edge Pine, the son of
John Pine, an artist of distinction, was born in London, and died
in Philadelphia, November 19, 1788. He won the first prize in
1760 of £100 offered by the society for the encouragement of the
arts for the best historical picture presented that year, his “Sur-
render of Calais,” with life size figures, and two years later gaining
another prize with his picture “Canute Reproving his Courtiers,”
Pine rose into prominence. He painted portraits of John Wilkes,
David Garrick and other well-known men of the day in Great
Britain. About 1782 or 1783, Pine brought his family over to
America. He had letters of introduction to Francis Hopkinson, |
whose portrait he painted. Hopkinson wrote to Washington intro-
ducing Pine and asking the general to sit to the latter for his por-
trait. This brought out from Washington the famous “In for a
penny, in for a pound” letter. However, Washington sat for Pine,
and the resulting portrait was engraved for Irving’s “ Life of Wash-
ington.” On July 17, 1835, Thomas Sully, another portrait painter
and a Philadelphian, was elected a member. The portrait of Thomas
Jefferson, which belongs to the society, who sat in yonder chair
when he drafted the Declaration of Independence, we owe to Sully’s
PROC. AMER. PHIL. SOC., LI, 207 K, PRINTED JAN. I7, 1913.

584 BALCH—SOME FORMER MEMBERS, [April 18,

brush. And as you look upon the features of the third American
President that hangs upon the south wall of this room, as rendered
to posterity by Sully, do you not notice the marked resemblance to
another Jefferson who was easily the prince of the American comic
stage and also an author of no mean proportions.*. John Sartain,
the engraver, was a member. To this group we must not forget to
add as a representative of the Fine Arts the French architect,
Viollet-le-Duc. He was the author of “L’Histoire d’Une Cathe-
dral”’; and in the reign of Louis Napoleon, Viollet-le-Duc did good
work for the preservation and restoration of many of the archi-
tectural treasures of France. He restored the justly famous feudal
castle of Pierrefonds, once the property of the Duc d’Orleans, and
arranged for the preservation of the yet greater feudal stronghold
of Coucy-le-Chateau, whose lords boasted of their power in the
famous motto:
“Roi ne suis, ni prince, ni duc, ni comte aussi,
Suis le sieur de Coucy.”

Of famous jurists we have had John Jay, first Chief Justice of
the Supreme Court of the United States, and negotiator of Jay’s
Treaty (1794); John Marshall and Roger Brooke Taney, who both
have sat in that same chair; Justice Bushrod Washington, who sat
on that same high tribunal; Robert R. Livingston, first chancellor
of New York, and Lord Coleridge, Chief Justice of England. So,
too, Thomas McKean, a signer of the Declaration of Independence
and Chief Justice of the Supreme Court of Pennsylvania, and
Edward Shippen, McKean’s successor as chief justice of this com-
monwealth, were members. So, likewise, William Tilghman,’ Ship-
pen’s successor, in the highest judicial office of the state, was elected
a member and also president of the society from 1824 until his death
three years later. Horace Binney, who won for the city of Phila-
delphia the Girard will case, was a member; and also James C.
Carter, for many years the acknowledged leader of the American
bar, and Edward J. Phelps, minister to the court of St. James. The
latter two were our leading counsels in the Bering Sea Fur Seal case
with the British Empire in 1893. :

’™ Joseph Jefferson’s “ Autobiography,” New York, 1890.
® See H. Binney’s eulogium, appendix to 16 Sargeant and Rawle.

1912.) BALCH—SOME FORMER MEMBERS. 585

Another man to make his mark as a jurist and at the same time
in the world of letters, who filled the presidential chair of this so-
ciety, was Peter Stephen Du Ponceau. His picture by Sully hangs
there on the northern wall. Born in the Isle de Ré off the western
coast of France, June 3, 1760, Pierre Etienne Du Ponceau came to
America in 1777 as secretary to Baron Steuben.* After the war
was over, Du Ponceau studied law and was admitted to the Phila-
delphia bar in 1785 and made his mark in that profession. In the
year 1810 he published in this city a translation under the title of
“ A Treatise on the Law of War,” of the first book of Cornelius van
Bynkershoek’s “ Quzstiones Juris Publici,” prefixing to it a preface
and introduction distinguished alike for style and learning.*° Du

*Robley Dunglison, M.D., “A Public Discourse in Commemoration of
Peter S. Du Ponceau, LL.D., late President of the American Philosophical
Society, delivered before the Society pursuant to appointment, on the 25th of
October, 1844,” Philadelphia, 1844; Ernest Nys, “Les Etats-Unis et le Droit
des Gens,” Brussels, 1909, page 147.

* He translated into English two other books treating of two phases of
international law. Neither has even been printed and the manuscript transla-
tions are now in the possession of the society. One, entitled the “Law of
Neutrality,” was translated from the German translation of the original work
of the Abbé Galiani that was published in Italian at Naples in 1782: “ De’
doveri de’ principi neutrali verso i principi guerreggianti, e di questi verso i
neutrali libri due.’ The other, “On the Freedom of the Seas,” is a transla-
tion of Gerard de Raneval’s “ De la liberté des Mers,” published at Paris in
1811. To Du Ponceau the society is also indebted for the possession of a
copy of John Selden’s “ Mare Clausum,” London, 1635-36. From him also it
received a copy of Richard Zouche’s small book that first appeared in 1650,
entitled “ Juris et judicii fecialis, sive, Juris Inter Gentes, et Questionum de
Eodem Explicatio, qua, que ad pacem et bellum inter deversos principes, aut
populos spectant, ex precipuis historico-jure-peritis, exhibentur.” This little
book is very likely the first manual of the positive Law of Nations and is
rare.

Zouche was probably the first writer who deliberately used the name
Jus Inter Gentes to designate a science which until that time had been name-
less. “This collection of words,” Dr. Holland says, “had, indeed, occurred,
as it were accidentally, here and there in the pages of earlier writers, such as
Victoria, Vasquez, Saurez and Grotius.” In 1716, the Chancellor d’Aguesseau
advised his son to study “ce qu’on appelle le Droit des Gens, ou, pour parler
plus correctement, parceque le nom de Droit des Gens a un autre sens, le
Droit entre les Nations.” In 1789, Jeremy Bentham in his “Principles of
Morals and Legislation ” coined the term “ International Law” as “ calculated
to express, in a more significant way, the branch of the law which goes

586 BALCH—SOME FORMER MEMBERS. [April 18,

Ponceau’s mental horizon was wide, and he wrote on many and
various subjects. In the year 1815 he took an important part in the
organization. of an historical committee of this society. He first
proposed such a committee in 1811. And it was as a result of this
committee probably that the Historical Society of Pennsylvania
was formed.‘ Among the members of this committee was William
Thomas, the founder in 1812 of the American Antiquarian Society
of Worcester, Massachusetts, the Abbé Correa da Sarra, David
Rawle, subsequently the first president of the Historical Society of
Pennsylvania,’? Thomas Jefferson, Alexander James Dallas, Isaiah

commonly under the name of the Law of Nations.” Thus Bentham trans-
lated Zouche’s term Jus Inter Gentes into modern English from which has
come the equivalents such as Droit International, Diritto Internazionale,
Derecho Internacional, etc., of other languages. See Dr. Holland’s edition of
Zouche’s “ Jus Inter Gentes” in the “ Classics of International Law,” edited
by James Brown Scott, Washington, I9oII.

““ Barly proceedings of the American Philosophical Society for the
Promoting of Useful Knowledge, 1744 to 1838,” Philadelphia, 1884, page 420.

“1811-June 21. (Patterson; and eight others.)

“ Historical Committee:

“* Resolved, On the motion of Mr. Du Ponceau, that a committee be
appointed to report and devise a plan for organizing a committee or branch
of this Society for making researches into and collecting materials for the
History of the United States and of Pennsylvania in particular or any other
plan for accomplishing the same object.

“* Resolved, That the Board of Officers be the Committee . . . to report
in one month.’ ”

* Transaction of the Historical and Literary Committee of the American
Philosophical Society, Philadelphia, 1819, Vol. I., pages v—viii: “ At a meeting
of the American Philosophical Society held at Philadelphia for promoting
useful knowledge, March 17, 1815.

“ Resolved, that a seventh committee be added to the six already estab-
lished by the twelfth fundamental law, to be denominated ‘The Committee of
History, Moral Science, and General Literature.’ ”

The other six committees were:

1. Geography, Mathematics, Natural Philosophy and Astronomy.

2. Of Medicine and Anatomy.

3. Natural History and Chemistry.

4. Of Trade and Commerce.

5. Of Mechanics and Architecture.

6. Of Husbandry and American Improvements.

I

n 1843 the Historical and Literary Committee published its third volume.

pe

1912.) BALCH—SOME FORMER MEMBERS. 587

Hosack of New York, William Short of Virginia, John Sargeant,
William Tilghman, Thomas McKean, Charles J. Ingersoll, Nicholas
Biddle and Caspar Wistar. Du Ponceau may therefore be consid-
ered to have been, with William Rawle and others, one of the
founders of the Historical Society of Pennsylvania.**

As a result of this committee, Du Ponceau prepared a work on
the “ General Character and Forms of the Languages of the Amer-
ican Indians,” that he read January 12, 1819, and which was printed
in the Transactions of the committee. This work added to the
author’s reputation. On June 6, 1821, he delivered before the
American Philosophical Society the annual address, taking as his
subject the “Early History of Pennsylvania.” Among many other
writings, he gave in 1834 an address before the Law Academy of
Philadelphia, of which he was then provost, on the “Constitution
of the United States,” of which a French translation was published
three years afterwards at Paris. The next year the Jnstitut Royal
of France crowned his work in French on the grammatical lan-
_ guages of the Lenni-Lenape and some other North American Indians
with the “Prix Volney.”** On the second of December, 1836, Du

*In Du Ponceau’s will this interesting passage occurs:

“The Historical Society of Pennsylvania is in danger of perishing for
want of support. While almost every other State has an historical society,
shall it be said that Pennsylvania wants one? Under the auspices of its
illustrious founder, William Rawle, it has produced interesting and valuable
memoirs: the honor of the State requires that the work should be continued.
I recommend to them to increase the number of their members, and, perhaps,
to raise the annual subscription to five dollars.” A distinguished member of
the Bar and so accustomed to sift evidence, a scholar, an antiquary, himself
one of the principal participants in the foundation of the Historical Society
and its second President (1837-1844), Du Ponceau in writing the above
quotation probably knew whereof he wrote. Besides a man does not write
anything in his will without careful consideration. See Robley Dunglison:
“A Public Discourse in Commemoration of Peter S. Du Ponceau, LL.D., .
late President of the American Philosophical Society, delivered before the
Society pursuant to appointment, on the 25th of October, 1844.” Published
by the Society, Philadelphia, 1844, page. 23.

*“ Mémoire sur le systeme grammatical des langues de quelques nations,
indiennes de l’Amérique du Nord; ouvrage qui a la séance publique annuelle
_de l'Institut Royal de France, le 2 mai, 1835, a remporté le prix fondé par M.
le comte de Volney: par M. P—Et. Du Ponceau, LL.D.,” Paris, 1838.

588 BALCH—SOME FORMER MEMBERS. [April 18,

Ponceau read before this society a long paper on “‘ The Nature and
Character of the Chinese System of Writing,” which was printed
in 1838 in the second volume of the Transactions of the Historical
and Literary Committee.*®

Besides being president of the American Philosophical Society
from 1827 to 1844, a period of seventeen years, Du Ponceau was
president of the Historical Society of Pennsylvania from 1837 to
1844, provost of the Law Academy of Philadelphia from 1821 to
1844, chancellor of the Law Association of Philadelphia from 1836
to 1844, and the president of the Philadelphia Atheneum for more
than sixty years. Du Ponceau was elected as a result of his literary
labors a corresponding member of many learned societies both at
home and abroad, such as the American Antiquarian Society (1813),
the Massachusetts Historical Society (1818), the New York His-
torical Society (1819), the American Academy of Arts and Sciences
of Boston (1820), the French Institute (1827), the Royal Academy
of Turin (1829), the Academy of Inscriptions, Belles-Lettres, His-
tory and Antiquities of Sweden (1831), the Academy of Sciences
and Belles-Lettres of Palermo (1837), and many more that attest
the high regard in which his work was held by scholars the world
over. In addition, Harvard, the oldest of American universities,
conferred in 1820 upon this scholar who was learned in the law the
degree of Doctor of Laws, honoris causa.

Two sovereigns were members of this society, Joseph Bonaparte,
who was designated on the list of members as “Joseph Count de
Survilliers,’ King of Spain, from 1808 to 1813; and Louis Philippe,
King of the French from 1830 to 1848. The former of these royal
exiles presented to the society an Etruscan vase.

Anthony Wayne, the victor of Stony Point, and whose equestrian
statue now mounts guard at Valley Forge, was chosen a member
between April 16, 1779, and January 19, 1781.*°

%« A Dissertation of the Nature and Character of the Chinese System of
Writing, in a letter to John Vaughan, Esq.,” by Peter S. Du Ponceau, LL.D.,
Philadelphia, 1838.

*® Samuel Whitaker Pennypacker, “ Pennsylvania in American History,”
Philadelphia, 1910, pages 30, 208.

Lent esl SONI Sl
COE ea ee eas Sata Sead

1912.] BALCH—SOME FORMER MEMBERS. 589

George Gordon Meade, of Pennsylvania, commander of the
Army of the Potomac, who held the supreme command for the
Union during the three days’ battle at Gettysburg,** where the flood
tide of the Confederacy was halted and forced to ebb, was elected a

-member in 1871.

Charles Wilkes, of New York, the discoverer of Wilkes Land
in East Antarctica,** who announced to a disbelieving world that
in the Antarctic there was a land continental in size, was also a
member. Like Meade, the hero of Gettysburg, the fame of Com-
modore Wilkes circled the globe, when early in the Civil War, Cap-
tain Wilkes, as he then was, in command of the San Jacinto, took
from the British mail steamer Trent, Messrs. Mason and Slidell, two
southern “gentlemen of distinction,’ who were on their way to
Europe to try to represent the Confederate States respectively at
the courts of St. James and the Tuilleries. Wilkes’s bold action
almost caused a war between this country and Great Britain, that
was averted only by the prompt surrender of the Confederate “ en-
voys” to Great Britain. That act established the rule of interna-
tional law, that the representatives of a belligerent to a neutral
power when navigating the high seas under a neutral flag cannot be
captured. At the time, the action of Wilkes was condemned gen-
erally outside of the United States as a flagrant breach of the law
of nations, and by none more so than by distinguished British publi-
cists such as Montague Bernard and Sir William Vernon-Harcourt,
“ Historicus.” The passage of time, however, has brought out
proof, through the then British Premier, Lord Palmerston, that in
the opinion of the best international legal advisers at that time of
the British crown—Sir William Atherton, Attorney-General, Sir
Roundell Palmer, Solicitor General (afterwards Lord Selborne)
and Dr. (afterwards Sir Robert) Phillimore, counsel to the Admi-
ralty—Captain Wilkes had acted according to international law as
upheld in practice by Great Britain herself by no less an authority

* The Pennsylvania Magazine of History and Biography, Philadelphia,

. IQII, pages I-40.

*Edwin Swift Balch, “ Antarctica,” Philadelphia, 1902; “ Why America
should Re-explore Wilkes Land,” Proceedings American Philosophical So-
ciety, 1909.

590 BALCH—SOME FORMER MEMBERS. [April 18,

than the celebrated expounder and architect of maritime law—Sir
William Scott, later Lord Stowell.2®

The Rev. Charles Magnus von Wrangel, of the Church of
Sweden, was a member. Bishop Wrangel was born in Sweden
about 1730, and was descended from Karl Gustaf, Count Wrangel,
a general of the Thirty Years’ War, who served under Gustavus
Adolphus and Bernard of Saxe-Weimar. Educated at Vestras and
the University of Upsala, Wrangel received in 1757 from the Uni-
versity of Gottingen the degree of D.D., and was shortly afterwards
nominated as court preacher to the King of Sweden. In 1759 he
was called to the provostship of the Swedish churches in “ New
Sweden,” and arrived in Philadelphia the same year. He at once
took charge of the Wicaco parish (Gloria Dei), which was first
organized in 1677 and was the second oldest parish of the Church
of Sweden in this state, the first having been established on Greater
Tinicum Island shortly after Governor Printz landed there in 1643.
Dr. Wrangel also had the oversight of all the Swedish congregations
in Pennsylvania and New Jersey. Returning to Sweden in 1768,
he was given the pastorate of Sala. In this country, according to
the instructions of the Archbishop of Sweden, he cordially and ac-
tively cooperated with the German Lutheran ministers.

The Rev. Dr. Robert Blackwell, of the Church of England, was
a member. A son of Colonel Jacob Blackwell, of Long Island, who
belonged to the family that long possessed and from whom was
named Blackwell’s Island in the East River, he was ordained to the
ministry of the English Church, and after serving several parishes
in this country, he ministered to Saint Peter’s church. His house,
on the south side of Pine Street, number 224, still stands with its
imposing front of alternating black and red bricks. While Dr.
Blackwell lived in it, all the ground westward to Third Street formed

* Montague Bernard, “ Notes on Some Questions suggested by the Case of
the Trent,’ Oxford and London, March, 1862; Sir William Vernon-Harcourt,
“Letters by Historicus on Some Questions of International Law reprinted
from The Times,’ London and Cambridge, 1863; Arthur Irwin Dasnet,
“John Thadeus Delane, editor of The Times, His Life and Correspondence,”
London, 1908; Arthur Christopher Benson, “ The Letters of Queen Victoria,”

New York, 1907; Thomas Willing Balch, “The Removal of Mason and
Slidell from The Trent,” The Nation, New York, February 11, 1909.

1912.] BALCH—SOME FORMER MEMBERS. 591

his garden. When the War for Independence broke out, he took
sides with the colonists and having gained in his youth a knowledge
of surgery, he offered his services to the cause, and served all
through the trying winter at Valley Forge, as surgeon to the First
Pennsylvania Line, having received his commission from Anthony
Wayne. He died at Philadelphia, in 1831, having been a notable
figure in the life of the city.

Another divine who was a member, was the Rev. John Wither-
spoon, of the Church of Scotland ; he was elected on April 21, 1769.
President of the College of New Jersey, now Princeton University,
Witherspoon not only impressed his mark upon the youth of many
of the leading men of our country in his work at the head of a
great institution of learning, but also took an active part in the
events, both in his own colony of New Jersey and in those of the
Confederation, that secured our admission to the brotherhood of
nations. Born at Yester, near Edinburgh, Scotland, February 5,
1722, the son of a pastor of the Scottish Church, and descended
through his mother from John Knox, Witherspoon was educated
at the University of Edinburgh, and became a minister of the
Church of Scotland in 1745 at Perth. Of an active and literary turn
of mind, he published in 1764 a work on “ Regeneration,” and three
volumes of “Essays”; he received the same year the degree of D.D.
from the University of Aberdeen. Calls came to him from Dundee,
Dublin, Rotterdam and the College of New Jersey, all of which he
declined. A few years afterwards, however, he accepted a renewed
invitation from the College of New Jersey to become its president,
and after publishing two volumes of sermons, he sailed for the New
World in May, 1768. His inaugural address at Princeton on August
17 of the same year, of the union of piety with science, was deliv-
ered in Latin. At once he set himself to the task of developing the
college. He raised money, procured books and instruments, among
the latter the first orrery made by Rittenhouse. He said he had
“become an American the moment he landed.” Certainly, no one
was more resolute in the cause of liberty. In 1774, just before the
beginning of the active strife between the colonies and the mother
land, he issued in Philadelphia a work on “Considerations on the

592 BALCH—SOME FORMER MEMBERS. [April 18,

,

Nature and Extent of the Legislative Authority of the British Par-
liament.’’ The sermon that he preached on “ fast day,” May 17,
1776, on the “ Dominion of Providence over the Passions of Men,”
he dedicated to John Hancock, the president of Congress; it was
reprinted at Glasgow, with notes in the loyal interest, to show the
iniquity of rebels. He was a member of the New Jersey Conven-
tion that framed a constitution for that colony and showed much
legal knowledge. Among other things he urged an omission of reli-
gious tests. He served in the Provincial Congress of New Jersey,
and afterwards he represented that colony in the Continental Con-
gress. He always wore his clerical garb, and considered himself to
be “ God’s minister both in a sacred and a civil sense.” In Congress
he did his full share of work, opposing, with keen insight, the re-
peated issues of paper currency. The part that Witherspoon played
in those years of trial has until now been much underestimated.
Among his other services to America it should not forgotten that
he was the only clergyman who signed the Declaration of Inde-
pendence. The religious leaders of the nations have a profound
influence on their development and destiny. For, as Paul Fredericq,
of the University of Ghent, has so truly said:

“Perhaps all historians do not attach a sufficient importance to the action
of religion on the development or restriction of public liberty. . . . As soon as
you do not close your eyes you notice this historic truth: There are religions
that put the peoples to sleep and there are religions that keep them awake.”
And Witherspoon’s religious teaching was not of a kind to lull a
nation to slumber.?°

* Montesquieu: “ Esprit des Lois,” Livre XXIV., chapitre V.; Thomas
Balch, “ Les Francais en Amérique,” Paris, 1872, pages 22-41; Emile de Lave-
leye, “ Le Protestantisme et le Catholicisme dans leurs rapports avec la liberté
et la prosperité des peuples” (Revue de Belgique, Brussells, January 15, 1875),
reprinted in “ Essais et Etudes,” premiére série, 1861-1875, Ghent and Paris,
1894, pages 370-409; R. Treumann: “ Die Monarchomachen: Eine Darstellung
der revolutionaren Staatslehren des XVI. Jahrhunderts,” Leipzig, 1895; Paul
Fredericq, “Le Calvinism et le Self-Government” (Journal de Genéve, July
10, 1909), reprinted in the Journal of the Presbyterian Historical Society,
Philadelphia, June, 1910, page 270.

There are statues of Witherspoon in Pennie Park, Philadelphia, on

Connecticut Avenue in the City of Washington, and on the walls of the
library of Princeton University.

1912.] BALCH—SOME FORMER MEMBERS. 593

Another notable foreign member was John Stuart Mill, philoso-
pher, logician, economist, and a member of the British Parliament,
author of a “System of Logic, Ratiocinative and Inductive,” ‘“‘ Prin-
ciples of Political Economy,” and other works that influenced
humanity. With the name of Mill can be coupled that of an Amer-
ican philosopher, Thomas Paine, the author of “Common Sense.”
Another of our early men of letters was Constantin Francois Chasse-
boeuf, Comte de Volney. Traveller, historian and senator of France,
his fame rests chiefly upon his works: “ Voyage en Egypte et en
Sirie” (1787); “Les Ruines, ou Méditations sur les Révolutions
des Empires” (1791) ; “ La Loi naturelle, ou Catéchisme du Citoyen
francais” (1793), and “Recherches nouvelles sur 1|’Histoire an-
cienne” (1814-15).

Of political writers and international jurists we can claim a num-
ber: Noah Webster, who wrote “Sketches of American Policy”
(1784) ; “ Examination of the Leading Principles of the American
Constitution” (1787); “The Rights of Neutrals” (1802); and on
many other topics, and gave to America his “ American Dictionary
of the English Language”; Alexis de Tocqueville, the author of
“Democracy in America” ; Esquiron de Parieu, who wrote on polit-
ical science ; Henry Wheaton, our minister first at Copenhagen and
then Berlin—worthy follower of his great prototypes, Albericus
Gentilis, Hugo Grotius and Cornelius van Bynkershoek—whose
treatise upon the laws of nations has held high authority among
jurists ; Theodore Dwight Woolsey, a voluminous writer on religion,
political science, international law, President of Yale, a member of
l'Institut de Droit International; and Sir Henry Sumner Maine,
holder for an all too brief period of the Whewell chair at Cambridge
University and expounder of the growth of law and legal customs
among many nations in Europe and Asia.**

* The Society has among its endowments, The Henry M. Phillips’ Prize
Essay Fund founded in October, 1888. The interest of this fund is awarded
for “the payment of such prize or prizes as may from time to time be
awarded by the society for the best essay of real merit on the Science and
Philosophy of Jurisprudence.” The Phillips Prize was awarded in 1895 to

George H. Smith, of Los Angeles, California, for his essay on “ The Theory
of the State.” In 1900 the Phillips Prize was given to W. G. Hastings, of

594 BALCH—SOME FORMER MEMBERS. [April 18,

With the names of historical scholars our rolls in the past at
least are rich. Upon them we find Washington Irving, minister to
Spain, biographer of Washington and author of “ Rip Van Winkle,”
the “Legend of Sleepy Hollow,” “The Alhambra” and the “ Con-
quest of Granada”; Jared Sparks, American historian, who wrote
of Washington and other parts of our history ; William H. Prescott,
who related the conquest of Mexico; Francois P. G. Guizot, prime
minister of Louis Philippe, membre of l’Académie Francaise and
author of “ L’Histoire de la Civilization en France” and “ L’Histoire
de France”; Lord Mahon, Fifth Earl of Stanhope, statesman and
historian, lord rector of the University of Aberdeen and a foreign
member of the Academy of Moral and Political Sciences of Paris;
Victor Duruy, French minister of public education and author of
“L’Histoire du Moyen Age” and “L’Histoire de France’’; John
Lothrop Motley, who has told the world of the struggles of the
Netherlands for freedom and independence; George Bancroft, who
related for us our own history from the beginning of the nation
until a little after its reception into the family of nations; Charles
J. Stille, president of the Historical Society of Pennsylvania and
provost of the University of Pennsylvania, who wrote of Anthony
Wayne; Theodore Mommsen, author of the “ History of Rome”;
and his fellow countryman, Leopold von Ranke, who treated of the
Middle Ages; James Anthony Froude, regius professor of history
at Oxford, who wrote “ The History of England from the Fall of
Wolsey to the Defeat of the Spanish Armada” and many lesser
works; the Rt. Rev. William Stubbs, Bishop of Oxford, author of
many works relating to the history of England; Henry Martyn

Walker, Nebraska, for a monograph on “The Development of Law as illus-
trated by the Decisions relating to the Police Power of the State.” In 1912,
this prize was awarded to Charles H. Burr, of Philadelphia, for an essay on
“The Treaty-Making Power of the United States and the Method of its
enforcement as affecting the Police Powers of the States.”

The Society also possesses the Thomas Balch International Law Fund.
This endowment was established in 1911 as a memorial to Thomas Balch “ for
his share in bringing about the arbitration by the Geneval Tribunal of the
Alabama claims.” It is intended, subject to certain restrictions, to be used
for the purchase of books relating to the law of nations and such other uses,
when: thought advisable, as may promote the study of that science.

1912.] BALCH—SOME FORMER MEMBERS. 595

Baird, who told us of the Huguenots; Frederick D. Stone, librarian
of the Historical Society of Pennsylvania, who did so much to make
the rich collections of that society accessible to scholars; Justin
Winsor, of Harvard, editor of the “ Narrative and Critical History
of America.’”’ And last, but not least, our fellow townsman, the
late Henry Charles Lea, whose portrait hangs in the north hall, one
of the greatest historians that America has given to the world, and
at the time of his death probably the most distinguished citizen of
Philadelphia, was a member of this society.

Among economists we have had a number of well-known men:
Dupont de Nemours, one of the famous French school of physio-
crats, who finally settled in the neighboring state of Delaware, and
presented to the society a bust of Turgot ; Henry Carey, whose name
is known wherever the science of political economy is taught ; Michel
Chevalier, who enlightened the world on many points of economy ;
Leon Say, the notable French minister of finance and president of
the French senate, who by his able management of the French
finances added new luster to a name already made famous among
economists by his honored sire and grandsire and earned by his
works on economics, “1’Histoire de la Théorie de changes étran-
gers,” “l’Histoire de la Caisse d’escompte,” “La Vie de Turgot,”
etc., election in 1886 to l’Académie Francaise; and Pierre Emile
Levasseur, a member of l’Académie des sciences morales et Politiques
of France.

The portals of the temple of letters had just opened before Albert
H. Smyth when he was carried off to the silent majority. Those
who were so fortunate as to hear his impromptu address in this hall,
prepared only upon thirty minutes’ notice, to the “ Americanists,”
when they visited the society, a few years since, were impressed
with the admirable manner in which, on that occasion, he received
our guests. Every one who attended the annual dinner of the so-
ciety in 1907, will remember how well he acted as toastmaster,
drawing upon his abundant knowledge of Anglo-Saxon literature
for many an apt quotation.

We have had noted poets, essayists and novelists, too: James
Russell Lowell, John Greenleaf Whittier, Ralph Waldo Emerson,

596 BALCH—SOME FORMER MEMBERS. [April 18,

and Oliver Wendell Holmes. And let us not forget that a Philadel-
phian, George H. Boker, minister to Russia and author of Francesca
di Rimini, was elected a member. Surely it is our loss that Samuel
L. Clemens (Mark Twain) was not: his was a case of the “ quarante
et uni¢me fauteuil” of the French Academy, for the name of Mark
Twain will be remembered as long as our country lasts.

I should much like to speak to you of our living townsmen here,
as well as in other parts of the country, who are members and have
gained distinction in the world of letters; but there is not time to
mention them all, and it is too difficult and ungracious a task to
choose among them.

From the foregoing men whom we have learnt were members of
this notable society, we see that in its bounds it has embraced all
knowledge, and awarded the honor of its membership not toa single
class of scholars or even to members of a few groups, but to savants
to whatever branch of learning they may have devoted their time and
powers. Membership in this society is an honor justly prized among
scholars. And not the least of the causes for the esteem in which
membership in the American Philosophical Society is held, is that
it is so universal in its scholarship.

The greatest thinkers of the world were men whose mental hori-
zon was not limited by the thought that that study upon which they
devoted their best powers was vastly more important than any other,
but recognized that knowledge extended in all directions and took an
interest in many channels.

One of the best and most notable examples of a man whose
learning was not confined only to his special branch, but who sought
by every means in his power to gain as an aid to his cherished aim
knowledge in every sphere of human activity, was the ablest of the
Carthaginian generals, Hannibal. Master of everything that was
known in his time that pertained to the carrying on of war, Han-
nibal was not only the school master of the Romans in the art of
strategy, an art which he practically originated and drilled thor-
oughly into his Roman pupils by inflicting upon them all sorts and |
kinds of reverses, but also he was a scholar. For splendidly edu-
cated by the direction of his father, Hamilcar, he knew almost every- _

1912.] BALCH—SOME FORMER MEMBERS. 597

thing that was to be known in his day. His natural genius as a
born military leader of men and able diplomatist was enhanced by
vast learning. His scholarship, far from proving a detriment, aided
him in that marvelous war that, with slender means, he waged against
the Romans and their great resources, a war known to the latter as
the war against Hannibal. Another active man of affairs who re-
joiced in a broad education, was the Scandinavian warrior-statesman-
king, surnamed the “ Lion of the North and Defender of the Faith,”
Gustavus II. Adolphus of Sweden.?* Other men of wide and di-

= Pennsylvania has especial interest in Gustavus Adolphus. For when
William Usselinx found that he could not persuade the states general of his
native Holland to take hold of his scheme for a Dutch trading and colonizing
company in the New World, he turned with reluctance in 1624, to Sweden for
aid. At Goteborg in October or November of 1624, Gustavus Adolphus
granted him a six hours’ interview to unfold his plans. On November 4,
Usselinx had the draft charter of the proposed company ready; then the
general prospectus of the proposed company was issued; and on December 21,
1624, the Swedish king gave “ commission to William Usselinx to establish a
General Trading Company for Asia, Africa, America and Magellanica.”
Finally, on June 6, 1626, King Gustavus Adolphus signed the charter of the
South Company, to carry on trade beyond the seas and to colonize. It was the
first forerunner of that later Swedish Company in whose service Lieutenant
Colonel John Printz, subsequently starting from Géteborg with the two
vessels, the Fama and the Swan, crossed the Atlantic in 1642, to become the
fourth governor of New Sweden. Printz, like his three Swedish predecessors,
landed at Fort Christina, the site of modern Wilmington in the present state
of Delaware. But before the Swedish governors began to rule in the terri-
tory of the colony of Delaware, a Dutch settlement was started near the
mouth of Delaware Bay, at Swanendael, and lasted for a few months, until
all its members were killed by the Indians. In 1643, the year after Governor
Printz had started from Sweden to cross the Atlantic Ocean to New Sweden,
and had established himself at Fort Christina, he moved his seat of govern-
ment from the territory subsequently called Delaware, to Great Tinicum
Island (Tenakon as the Indians called it), a part of what is now Pennsyl-
vania. And so Printz was the first man to represent in his own person a
European sovereign, who established a seat of government in the territory of
what is now the commonwealth of Pennsylvania. Thus Pennsylvania looks
for the beginning of her sovereignty to Queen Christina of Sweden and her
chancellor Axel Oxenstierna, and through them to Gustavus Adolphus. The
thirteen colonies that sprang from three northern nations of Europe—England,
Holland and Sweden,—and founded the United States of America, can look
back to three historic figures——Elizabeth of England, Father William of the
Netherlands, and Gustavus Adolphus of Sweden, all three worthy prototypes
of our own national father, Washington.

598 BALCH—SOME FORMER MEMBERS. [April 18,

verse learning were Leonardo da Vinci, Grotius, Rabelais, Coper-
nicus, Napoleon, Cavour and Bismarck. To all these men who
looked through all knowledge for their guide and aid in their life’s
works are applicable the lines of Wordsworth:

“Who with a natural instinct to discern,
What knowledge can perform, is diligent to learn.”

There are numerous societies devoted to one line of research,
where men who are engaged in a comomn pursuit, can exchange
ideas upon their favorite theme. Here in Philadelphia, the home
of the society, we have, for example, the Historical Society of Penn-
sylvania (1824), the Academy of Natural Sciences (1812), and the
Franklin Institute (1822), each one of which is devoted to a special
field of research. So in other cities you find quantities of such
societies devoted to a single, or at most two or three topics of inves- —
tigation. But the American Philosophical Society is one of the very
few associations in the world which by its membership has been
representative of all learning. Other societies that represent all
knowledge are the Hungarian Academy of Sciences of Buda-Pest
(1825) ; the Institut de France of Paris (1795) ; the American Acad-
emy of Arts and Sciences of Boston (1780), the second oldest
American society of learning ;?* the Académie Royale de Belgique of
Brussells (1771) ; the Koniglische Bayerische Akademie der Wissen-
schaften of Munich (1759); the Royal Academy of Sciences and
Lettres of Denmark of Copenhagen (1742); the Imperial Russian
Academy of St. Petersburg (1725), conceived by Peter the Great,
and organized and endowed by Catherine upon the plans of Leibniz
and Wolff; the Koniglische Preussiche Akademie der Wissenschaften
of Berlin (1700), whose first president was Leibniz and which num-
bered among its members Savigny, Schleiermacher, Bopp, Ranke

J. Franklin Jameson, “ William Usselinx, founder of the Dutch and
Swedish West India Companies,” papers of the American Historical Associa-
tion, New York, 1887, Volume II., No. 3; James M. Swank, “ Progressive
Pennsylvania: a record of the Remarkable Industrial Development of the
Keystone State,” Philadelphia, 1908, page 13; Amandus Johnson, “The
Swedish Settlements on the Delaware, 1638-1664,” Philadelphia, tort.

* Proceedings of the American Academy of Arts and Sciences, Volume
XLIV., No. 26, September, 1909.

i

Px Bu

1912.] BALCH—SOME FORMER MEMBERS. 599

and Wheaton ; and the Royal Academy of the Lincei of Rome (1603),
one of whose foreign members was the historian, Henry Charles
Lea. A few more might be cited but their total number is small.
Surely some of the work performed by men of letters has re-
dounded as much to the benefit and advancement of humanity as
anything discovered by the exact scientists. What more difficult
and beneficent task opens before the scholar than the effort to aid
in solving the difficult problem of government? Like individuals,
nations are born, grow up unless cut down in their youth, reach
maturity and sooner or later die. Yet in both the case of the indi-
viduals and states the span of life can be shortened or lengthened
according as sound rules of life are followed. In the case of nations
this depends in great part on what manner of government they have.
For thousands of years men have worked at that problem and the
solution of it seems as far off as at the beginning. A little more
than a century since, some of the ablest men of our then young coun-
try—some of them members of this Society—framed in yonder his-
toric building, our old Pennsylvania State House (1735), in the
shadow of whose steeple this also historic building stands, a form
of government that at the time was admirably suited to the needs
of this country. It was a distinct advance in government building.
Yet, they originated little that was new, and most of that little
proved in practice to be abortive. In framing the form of govern-
ment under which this republic has prospered for over a hundred
years, they ranged the whole past of humanity for the efforts of
other races at government building. And from the experiments of
other nations, as tried and tested in the sound school of experience,
and the writings of the great commentators upon government and
human rights, such as Locke, Grotius, Montesquieu and Burla-
maqui,** they evolved their scheme of government.?* That that

* J. J. Burlamaqui, “ The Principles of Natural Law ;—in which the true
systems of Morality and Civil Government are established.” Nugent’s trans-
lation, London, 1748. There is a copy of this book in the Library Company
of Philadelphia. :

* Writing from Philadelphia, November 13, 1789, to Jean Baptiste Le Roy,
Franklin says: “ Our new Constitution is now established, and has an appear-
ance that promises permanency; but in this world nothing can be said to be
certain, except death and taxes.”

PROC, AMER. PHIL. SOC., LI. 207 L, PRINTED JAN. 20, 1913.

600 BALCH—SOME FORMER MEMBERS. [April 18,

plan is not working so smoothly now as in their day is due to the
changed conditions that have grown up, especially the vast increase
of population, largely congregated in small areas. Formerly it was
a great deal easier for a man to rise to political leadership unaided
except by the appeal that his abilities and force of character made
upon his neighbors. And to-day many of the best political men rise
in small communities. So in South Africa, where the population
is sparse in the country districts and the cities and towns are still
generally small, one of the Dutch farmers of the Orange Free State
rose in the Anglo-Dutch three years’ war to become the ablest gen-
eral who held high command on either side, Christian de Wet. Such
a career as his would be almost impossible in a densely populated
- country. To so adapt the governmental structure to the ever-chang-
ing conditions of population that the individuality of most men will
not be strangled by the density of population in which they live is
as difficult an undertaking as any problem within the range of sci-
ence, as worthy of the efforts of the best minds as the continued
attempts to conquer disease, or to win a reasonable safe and certain
navigation through the air. In all times and climes there have been
political leaders with but little knowledge of events and institutions
before their own lives began, who have asserted that existing insti-
tutions and laws were inadequate and bad, and in glittering phrases
have said that such conditions must be changed. But as a rule they
have not presented any well thought out plans by which such con-
ditions could be remedied to the advantage of the human race. For
while men have found it easy to destroy governmental structures,
only occasionally a leader like Charlemagne or Washington, for in-
stance, has come forward possessed of the ability to build up some-
thing new for the advantage of humanity. And towards the efforts
of such politcal leaders of the human race to devise a better and
more acceptable system of government, publicists from Plato down,
have made valuable contributions. Malthus in 1798 published his
“Essay on the Principle of Population,” in which he pointed out
that population tends to increase faster than sustenance, with the
result that poverty, misery and vice must ever be present with us.
struggle for existence” (those

“ec

He explained and expounded the

1912.] BALCH—SOME FORMER MEMBERS. 601

are his identical words) among mankind.”* Studying his subject
further, he found that Plato and Aristotle had grasped the same fact
that the human race tends to increase more rapidly than the means
of nourishment. Of such publicists, as Witherspoon, for example,
a number, as we have seen, were members of the American Philo-
sophical Society.

Thus as we look at the roll of this truly historic society, the
oldest society of learning in the New World, we see that its member-
ship has been recruited year by year with original workers seeking
after truth in all branches of Knowledge, whether in the Republic of
Letters, the Exact Sciences or the Mechanical and the Fine Arts, so
as to keep the American Philosophical Society truly representative
of all learning.

*T_R. Malthus, “An Essay on the Principle of Population, as it affects

the future Improvement of Society, with remarks on the speculations of Mr.
Godwin, M. Condorcet, and other writers,” London, 1798, page 48.

CORRIGENDA.

In Vol. LI, No. 203, Dr. T. J. J. See’s paper on the Depth of the
Milky Way :

page 12, 8th line from top, for ‘‘large’’ read ‘‘small.’’

Ge Ae eee EK AE OE eertauing "pag "ancreasing.”’

ee “« 14th sé “e “e ce ‘“large’’ read ** small.’’

page 13, 8th line from bottom, /for ‘“enfeeblement of’’ read
‘««enfeeblement to.’’

page 14, 4th line from top, for ‘‘million’’ read ‘‘ thousand.’’

In No. 204, the same author’s paper on the Dynamical Theory of the
Globular Clusters.

page 119, 18th line from top, for ‘‘ Stellar System” read ‘Stellar
Systems.’’

page 122, equations (10), make denominator of first equation same as

last two.

< a |e gts
page 127, 7th line from top, for ae read ae

page 139, roth line from top, for ‘‘ convected’’ read ‘‘ connected.”’
i=t i=i

page 144, last equation of (48) for ‘‘>°”’ read ¥ Z,”’
i=1 i=1

page 165, 9th line from top, for ‘‘ mediation’’ read ‘‘ meditation.’’

603

&

JULES HENRI POINCARE.
(Read December 6, 1912.)

In a much quoted sentence, Klein has said “ We shall have a pic-
ture of the development of mathematics if we imagine a chain of
lofty mountains as representative of the men of the eighteenth cen-
tury, terminating in a mighty outlying summit,—Gauss, and then a
broader, hilly country of lower elevation ; but teeming with new ele-
ments of life.” This was written in 1893 and would perhaps still
be received as the truth by most observers. During the ensuing
period it has, however, become more and more evident that two of
the contemporary hills rise quite above the others, and it may be that
when they are seen in perspective they will compare favorably with
_the more distant mountains.

Hilbert and Poincaré are associated and contrasted in the minds
of all students of mathematics both by the brilliance of their achieve-
ments and the difference of their methods. To enter into a com-
parative study of these two great men would not be an appropriate
exercise for this occasion, but to have suggested it may help to indi-
cate the relation of Poincaré to the time in which he lived.

Aside from his intellectual triumphs, which one could adequately
comprehend only by reading a series of his papers, the life of Poin-
caré presents little of interest. He was born at Nancy on the 29th
of April, 1854. His unusual gifts were recognized early, so that he
had an excellent education. He received the degrees of Bachelor of
Letters and of Science in 1871 and that of Mining Engineer in 1879.
He was attached in one capacity or another to the Department of
Mines of the French government for the rest of his life, but not in
such a way as to interfere with his scientific work.

In the year 1879 he also received his doctorate of Science from
the University of Paris. He was immediately made a member of
the faculty of science at Caen. From there he was called to the
University of Paris in 1881. In 1886 he was appointed professor

iv OBITUARY NOTICES OF MEMBERS DECEASED.

of physics and of the calculus of probabilities in the University of
Paris and in 1896 became professor of mathematical astronomy at
the same university. In 1904 he was also made professor of general
astronomy at the Ecole Polytechnique. Since 1902 he occupied the
chair of electricity at the Ecole professionnelle supérieure des Postes
et des Télégraphes. He died on the 17th of July, 1912.

The importance of his scientific contributions was recognized
from the very beginning of his career. He received practically all
the distinctions which are open to a mathematician. Among the
most notable were: Election to the Academy of Science of France
(Section of Geometry) in 1887, election to the French Academy in
1908, and the Bolyai Prize for excellence in all fields of mathematics
in 1905. He was elected a member of the American Philosophical
Society in 1899.

Poincaré was particularly distinguished among his contemporaries
by the wide range of his creative power. He left behind enduring
works not only in the several branches of pure mathematics but in

astronomy, physics and philosophy. He has often been described -

as the last of the universals. Indeed in this respect as well as in
the brilliance of his individual works, he is like those earlier heroes
of science whom Klein compared to the chain of lofty mountains.

It goes without saying that one could not expect to give an ade-
quate account of Poincaré’s complete work in a short address like
this one. I shall try, however, to mention certain main divisions of
his work, taking them up in an order which is roughly chronological.
Naturally, the periods to which I shall refer all overlap but I shall
try to arrange them according to the dates of the central papers in
each subject.

Poincaré’s doctoral dissertation, which was his first published
work of importance, appeared in 1879. Its title was “ On the Prop-
erties of Functions Defined by Partial Differential Equations” and
it supplies the existence theorem for solutions in the neighborhood
of singular points of a very general type. This memoir initiated a
long series of brilliant contributions to the theory of differential
equations, especially to that of linear differential equations. Most
of these papers appeared in the period before 1886.

Se Fee BRO Oe eee

Oe we ie Se a To ee

JULES HENRI POINCARE. v

These studies led directly to his discoveries in the field of auto-
morphic functions where Poincaré achieved his first great celebrity.
Like most first-class things in modern mathematics, it is impossible
to describe these functions briefly in a non-technical discussion.*
We must be content to characterize them as the nearest lying and
most beautiful generalizations of the trigonometric and elliptic func-
tions. Poincaré deserves to be classed as one of the founders of
this branch of mathematics, for to him are due some of the main
outlines of the theory and the main existence theorems. Poincaré’s
last important contribution was his memoir on the zeta-fuchsian
functions in the Acta Mathematica for 1884. Since then this work
has been carried forward chiefly by Klein and his students.

This series of contributions to function theory was followed in
1885 by his epoch-making memoir on the figure of equilibrium of a
rotating fluid mass. In this work he not only solved the problem of
stability for the previously known figures of equilibrium, the ellip-
soids of Maclaurin and of Jacobi, but he also discovered a whole
class of new figures of equilibrium. This work is important not
only on account of the particular new figures (the pear-shaped fig-
ures) which it put in evidence, but also on account of its method.
I need mention only the theorem on the exchange of equilibrium.

In 1890 he made a still greater contribution to mathematical
astronomy in his memoir “On the Problem of Three Bodies and the
Equations of Dynamics.” Here he brought into existence a general
theory of periodic orbits and disproved the existence of further new
integrals which are analytic functions of the masses. These matters
and many others, such as the integral invariants and asymptotic solu-
tions, are the subject of his three volumes (1892, 1893 and 1899)
on “Les Méthodes Nouvelles de la Méchanique Ceéleste.”” Later on
he published three more volumes entitled “ Legons de Méchanique
Céleste” in which he developed some of the classical theories from
new points of view. ;

The problems of celestial mechanics continued to occupy the
mind of Poincaré till the end of his life. In his last paper, which

* This difficulty must indeed be my excuse for the summary way in which
I shall have to refer to the rest of Poincaré’s work.

vi OBITUARY NOTICES OF MEMBERS DECEASED,

appeared in print shortly after his death, he shows how to reduce
one of the problems regarding the existence of periodic orbits to a
geometric problem, which, however, he was unable to solve. He
apologizes for putting forth such an incomplete result on the ground
that at his age (he was only 58) he could not feel confident of re-
turning to the problem in the future and solving it completely. One
cannot avoid the impression that he felt that his career was very
nearly at an end. It will doubtless interest this audience to know
that a proof of Poincaré’s theorem has already been found by a
young American mathematician, Professor G. D. Birkhoff, of
Harvard, |

We cannot here dwell longer on the astronomical work of Poin-
caré. We must pass over without particular mention his work on
the figure of the earth; on the tides, and on the lunar theory, as well
as his recent book on cosmogony.

Poincaré is the author of at least fourteen advanced text-books
in various branches of physics. Among the titles we find Capillarity,
Elasticity, Vortices, Heat, Thermodynamics, Optics, Electricity,
Wireless Telegraphy, etc. These are chiefly reproductions of his
courses of lectures at the Sorbonne. He also wrote a large number

-of papers and memoirs on physical topics, especially on Hertzian
waves and on the theory of electrons. On the whole, however, his
work in physics cannot be compared in importance with his funda-
mental contributions to mathematics and astronomy. His work on
the differential equations of physics and on Dirichlet’s principle,
which one might be expected to mention here, is of more conse-
quence to mathematics than to physics.

We must now turn to another main division of his work in a
domain of pure mathematics. Already in 1883 he had published an
important paper (in the Acta Mathematica) laying the foundations
of the theory of functions of two complex variables. In 1887 he
published his memoir on the residues of double integrals, which
furnished one of the chief tools for the theory of algebraic functions
of two variables, a theory which has since been built up chiefly by
his colleague Picard, by Poincaré himself, and by many brilliant
Italian geometers.

Re ee

AIC AS Ark St

JULES HENRI POINCARE. vit

The theory of algebraic functions of one variable has as its most
striking auxiliary the manifolds of two dimensions known as Rie-
mann surfaces, and the theory of the connectivity of Riemann sur-
faces is the main object of the analysis situs of two dimensions. A
generalization of this theory to manifolds of any number of dimen-
sions was foreseen to some extent by Riemann himself and to a
larger degree by Betti, who discovered a set of invariants of n-dimen-
sional manifolds which are known as the Betti numbers. Little real
progress, however, had been made till Poincaré took the question up,
modified the Betti definitions, showed how the modified Betti num-
bers satisfy a generalization of Euler’s theorem for polyhedra, and
introduced an entirely new set of constants, the coefficients of torsion.
This work is contained in a series of memoirs of which the first
appeared in 1892 and the last in 1904. They were accompanied and
followed by a number of papers in which analysis situs is applied
to the theory of algebraic functions of two and more variables.

I have now mentioned what appear to me the most important
achievements of Poincaré, grouping them together in four classes
which, as I said, correspond very roughly to a chronological order,
The four sections of his work which I have signalized are his con-
tributions (1) to the classical theory of differential equations and
the theory of automorphic functions, (2) to the theory of stability
and of the differential equations of celestial mechanics, (3) to physics
and (4) to analysis situs and the theory of functions of several
variables.

Another side of Poincaré’s intellectual activity which has attracted
more general attention than any of his capital achievements in pure
science is represented by his semi-philosophical books, “ Science and
Hypothesis,” “The Value of Science,” and “Science and Method.”

_ These books have been translated into most of the modern languages,

including English, and have received much attention and praise.
They are characterized by a clarity and hard-headed “common
sense” which is more often sought than found in this class of
literature.

After noticing the works for which Poincaré was chiefly famous,
there still remains a host of mathematical papers which would be

viii OBITUARY NOTICES OF MEMBERS DECEASED,

sufficient to rank him ahead of most of his contemporaries. One
thinks first perhaps of his two papers on the uniformization of a
general analytic function which appeared in 1883 and 1908 respec-
tively. Then there are his papers on transcendental entire functions
and on analytic functions which have lacunary spaces. He made
several contributions to the theory of Abelian functions, the reduc-
tion of Abelian integrals, the theory of the zeros of theta functions.
His paper on linear equations of finite differences has stimulated a
great activity of research in that field. In Liouwville’s Journal for
1890 he investigated sets of functions satisfying what he called a
theorem of multiplication, including particularly a new class of func-
tions which he named after Cremona. He also deserves credit for
establishing the convergence of Hill’s infinite determinant and wrote
several papers on integral equations and their applications. Also
several papers on continuous groups, on hypercomplex numbers, on
number theory, and on the relation of automorphic functions to
number theory.?

The mathematical style of Poincaré was intensely modern. There
are few purely formal theorems to his credit. Few of his results
depend on long or difficult computations. He said of himself with
a furtive touch of humor—the remark came in a paper relating to
his and Darwin’s work on the pear-shaped figures—that he was poor
at arithmetic. He was good, on the other hand, at divining a gen-
eral principle after seeing the least possible number of special cases.
He was tremendously powerful at the essentially modern game of
finding out all about a function irrespective of whether it could be
adequately described by formulas of the classic type. In any prob-
lem he felt instinctively for the fundamental group and for the in-
variants thereof. He had an almost visual grasp of the properties
of a figure of any number of dimensions which remain invariant
under a continuous deformation, and this either in case of the small
deformations that are considered in problems of stability or in the
larger ones that constitute the subject matter of analysis situs. All
this was combined with a sound judgment which always directed his

2 A satisfactory bibliography of Poincaré’s publications is to be found in
“Savants du Jour, Henri Poincaré,” by E. Lebon (Paris, 1912).

NTE ON ee ET TS Tee ES Ce Eee es Oe NU ae

JULES HENRI POINCARE. ix

energies towards problems of which the importance cannot be con-
tested. Nearly everything that he did has been the starting point
for the researches of a considerable number of other scientists.

The chief criticism that has been directed against Poincaré is
that he never actually completed his work in any one branch of study.
That after having discovered a few of the fundamental theorems, his
curiosity was satisfied and he was ready to swing to another branch,
again to pick the choicest fruit and leave the less exhilarating tasks
to his slower contemporaries and to the future. There is truth in
the charge. He could never have done what he did in any other
way. But what critic would not be glad to do the same thing if he
could? Indeed, it seems to me that both the blame and the praise
which Poincaré deserves are condensed in the epigram of Borel:
“He was a conqueror, not a colonist.”

OswaLp VEBLEN.

vs)

MINUTES
Stated Meeting, January 5, 1912.
WiuiaM W. KEEN, M.D., LL.D., President, in the Chair.

Invitations were received:
From the Eighth International Congress of Applied Chemistry
to be held in Washington and New York, September 4 to 13,
1912, to participate in its proceedings.
From the Committee of Organization of the Second Congress
of Chemistry and of Pure and Applied Physics, in memory
of Professor Mendéléeff, to be held at St. Petersburg on
January 3 to 10, 1912, to participate.
From the Sociedad Astronomia de Barcelona to participate in
the Exposition of Lunar Studies to be held from May 15 to
June 15, 1912.
The decease was announced of:
Prof. George Davidson, at San Francisco,on December I, 1911,
zt. 86.
Sir Joseph Dalton Hooker, O.M., G.C.S.I., D.C.L., F.R.S., at
Sunningdale, Eng., on December I1, I911, et. 94.
Dr Arthur V. Meigs, at Philadelphia, on January 1, 1912, et. 61.
Prof. John M. Macfarlane offered some remarks on the life and _
services of Sir Joseph Dalton Hooker.
The following papers were read:
“The Physical History of the Grand Canyon District,’ by
Prof. Douglas Wilson Johnson, of Cambridge, Mass.
“The Determination of the Depth of the Milky Way,” by Dr.
T. J. J. See, of the U. S. Naval Observatory, Mare Island,
Cal.
The Judges of the Annual Election of Officers and Councillors
held on this day between the hours of two and five in the afternoon,
reported that the following named members were elected, according

ii

iv MINUTES. [Jan. 5,

to the Laws, Regulations and Ordinances of the Society, to be the
officers for the ensuing year.

President:
William W. Keen.

Vice-Presidents:
William B. Scott, Albert A. Michelson, Edward C. Pickering.

Secretaries:
_ I. Minis Hays, Amos P. Brown,
Arthur W. Goodspeed, Harry F. Keller.

Curators:
Charles L. Doolittle, William P. Wilson, Leslie W. Miller.

Treasurer:

Henry La Barre Jayne.

Councillors:
Elected in 1gto. Elected in 1o1t. Elected in 1912.
Edward L. Nichols, Henry F. Osborn, William Trelease,
Samuel Dickson, J. G. Rosengarten, Francis B. Gummere,

Ernest W. Brown, Edward W. Morley, Robert Williams Wood,
Morris Jastrow, Jr., Henry H. Donaldson, John Frederick Lewis.

Stated Meeting, February 2, 1912.
Witiiam W. KEEN, M.D., LL.D., President, in the Chair.

Invitations were received:

From the Royal Society to be represented by a delegate at the
celebration of the 250th anniversary of its foundation on
July 16 to 18 next.

From the Academy of Natural Sciences of Philadelphia t to be
represented at the celebration of the centennial of its founda-
tion on March Ig to 21 next.

ES Pa

1912.] MINUTES. v

From the Congrés International d’Anthropologie et d’Archéol-
ogie Préhistorique announcing that the 14th Congress will be
held at Geneva in September next.

From the Congrés International des Orientalistes to be repre-
sented at the 16th session to be held at Athens in April next.

Prof. Leslie W. Miller, on behalf of the Curators, reported the
receipt of a gift to the Society of some valuable relics of one of its
honored presidents, Mr. Peter S. Du Ponceau, whose portrait by
Sully is one of the most benevolent of those that look down upon us
from our walls. They consist of two crosses, a larger and a smaller,
of the order of St. Louis and the gold medal of the Institut de
France. The relics were presented to the Society by Miss Aline
Garesché, an elderly lady, who has lived for many years in Paris
and who states that as the last decendant of Du Ponceau she feels
that the Society is the proper custodian of these treasured heirlooms
of the family.

Mr. Du Ponceau wrote a learned monograph on “ The Structure
of the Indian Languages” which was printed in the Transactions of
the Historical and Literary Committee of this Society, of which he
was secretary, and in May, 1835, the “ Prix Linguistique ” founded
by the Count de Volney was awarded to him by the Institut de
France for a memoir on the Indian Languages of North America,
which was afterwards published in Paris. The medal is a beautiful
example of the work of the distinguished medallist, Rambert Du-
marest (1750-1806).

Mr. Du Ponceau’s attention was also directed, at this time, to the
structure of the Chinese languages and in 1838, when he was 78 years
old, he published in the Transactions of the Historical and Literary
Committee of this Society a memoir of 375 pages on this subject.

The Royal and Military Order of St. Louis (to give it its full
title) was instituted by Louis XIV.in the year 1693. Itis conferred
on naval and military officers who have distinguished themselves in
the service.

vi MINUTES. [Feb. 2,

Mr. Samuel Dickson made the following remarks:

As more than three quarters of a century have elapsed since the
death of Mr. Du Ponceau, and he can be little more than the shadow
of a name to most of those present, I have been asked to say some-
thing about him.

The only source of information now available, is the sketch of
his life, read before this Society by his friend, Dr. Dunglison, just
after his death in 1844. From this, it appears that he was born
June 3, 1760, in the Isle de Ré, a small island off the west coast of
France. He early developed an exceptional talent for languages,
and having mastered a French and Latin vocabulary before he was
six, he was able when twelve years of age to speak and write both
English and Italian with fluency and correctness. The death of his
father, leaving the family in straitened circumstances, when he was
less than fifteen years of age, made it necessary for him to earn his
own livelihood, and after an unsuccessful experience as a teacher,
he went up to Paris, having as his outfit, ‘‘a clean shirt and a copy
of ‘Paradise Lost,” and there supported himself as a translator.
This led to an acquaintance with Beaumarchais, known to us as the
author of the “ Barber of Seville” and the “ Marriage of Figaro,”
but then largely engaged under the firm name of Hortalez & Co., in
exporting supplies to the Colonies.—By the way, a very interesting
sketch of Beaumarchais is given by Trevelyan in his American Rev-
olution—Beaumarchais introduced Du Ponceau to Baron Steuben,
who was about starting for America, and speaking nothing but
German, needed a Secretary, as an interpreter, familiar with English
and French.

They came to this country and landed at Portsmouth in Decem-
ber, 1777, and after going to Yorktown, where the Continental Con-
gress was in session, they went to Valley Forge early in 1778, where
Du Ponceau made the acquaintance of Washington and Lafayette.
As Secretary of Steuben, he was made a captain, and served as an
officer until July, 1781, when he resigned on account of his health
and came to Philadelphia.

He was soon after appointed secretary to Mr. Livingston, the
Secretary for Foreign Affairs, upon the recommendation of Judge

1912.] MINUTES. vin

Peters, who wrote that he was “a good Latin scholar, French is his
native tongue, English he has acquired perfectly, and he understands
German, Italian and Spanish, he can translate Danish and Low Dutch
with the help of a dictionary, and a little application will make him
master of these.”

At the close of the war, he entered the office of William Lewis,
then the leader of the Bar, and was admitted in 1785. He soon |
acquired a large practice, and his command of languages must have
contributed to the prominence which he attained as an admiralty
lawyer.

In the bibliography, printed as an appendix to Dr. Dunglison’s
discourse, is a long list of his occasional papers and translations.
He was especially interested in the study of philological questions,
and his contributions upon the Indian and Chinese tongues attracted
much attention and gained for him the medal which has been pre-
sented this evening.

While busily engaged in practice, he found time to take part in
the proceedings of professional and literary associations with which
he became connected.

He was elected vice-president of the American Philosophical
Society in 1816, and president in 1827, holding the office until his
death in 1844.

He was the first president of the Law Academy, and was annually
reelected until his death in 1844. The relations between the mem-
bers and himself were of a most cordial and affectionate character,
and the Law Academy presented to the Law Association of Phila-
delphia a copy of Sully’s portrait.

He also became the president of the Historical Society, of the
Atheneum, a trustee of the University of Pennsylvania; and in 1836
he was elected Chancellor of the Law Association, and, as in every
other case, retained the office until his death in 1844.

Upon the occasion of the celebration of the centennial anniver-
sary of the Law Association, Chief Justice Mitchell delivered an
historical address, in the course of which, referring to the office of
Chancellor, he said, “ the office has justly come to be regarded as the
highest honor that the Bar can pay a fellow member.” This would

viii MINUTES. [Feb. 2,

naturally be inferred from the names of those who have held the
office. Mr. Du Ponceau was preceded by Jared Ingersoll and Wil-
liam Rawle, and was followed by John Sergeant, Horace Binney,
Joseph R. Ingersoll, William M. Meredith, and others, each prom-
inent in his own day, until now the office is held by our fellow
member, Hampton L. Carson.

No formal eulogy could give so adequate a notion of the char-
acter of Mr. Du Ponceau, or of the esteem and regard in which he
was held, as this list of offices to which he was elected. The mem-
bers of these institutions represented, if they did not constitute, the
leading men in the professional and intellectual life of Philadelphia,
and he could not have been elected and reélected as their presiding
officer if he had not been a man of great accomplishment, of sound
learning, and of upright character.

Prof. John Bassett Moore, of New York, read a paper on ‘“‘ Con-
traband of War” which was discussed by Judge George Gray, of
Wilmington, and Mr. Frederick R. Coudert, of New York.

Stated Meeting, March 1, 1912.

WitirAM W. Keen, M.D., LL.D., President, in the Chair.
The decease was announced of:
Prof. E. P. Crowell, at Amherst, on March 24, 1911, et. 81.
Sir James M. Le Moine, at Quebec, on Feb. 5, 1912, zt. 87.
Prof. George J. Brush, at New Haven, on Feb. 6, 1912, et. 81.
Rt.-Hon. Joseph, Lord Lister, at London, on Feb. 11, 1912,
eet. 85.
Dr. W. W. Keen offered some remarks in appreciation of the
services to Science of the late Lord Lister.
The following papers were read:
“The Chestnut Blight,” by Dr. Haven Metcalf, of Washington.
“The Secular Variation of the Elements of the Orbits of the
four Inner Planets,” by Mr. Eric Doolittle.
“The Validity of the Law of Rational Indices and the Analogy
between the Fundamental Laws of Chemistry and Crys-
tallography,” by Mr. Austin F. Rodgers. (Introduced by
Mr. John C. Branner.)

RE

Sa

Fes 3, iti ystel agente oe eae

1912.) MINUTES. ta

Stated Meeting April 12, 10912.
Wru1am W. Keen, M.D., LL.D., President, in the Chair.

Letters were received

From the Committee of Organization of the IV. Congrés Inter-
national d’Histoire des Religions to be held at Leyden from
the 9th to 13th of September, 1912, inviting the Society to be
represented at the Congress by a delegate.

From the Trustees and Faculty of Princeton University, re-
questing the presence of a delegate at the inauguration of
John Grier Hibben, President of the University, on Saturday,
May II, 1912.

From the American Academy of Arts and Sciences, appoint-
ing Prof. A. Lawrence Rotch, from The Connecticut
Academy of Arts and Sciences, appointing Prof. E. Hershey
Sneath, from The Washington Academy of Sciences, appoint-
ing Dr. L. O. Howard, and from The American Institute of
Electrical Engineers, appointing Mr. Harry Archer Hornor,
to represent them respectively at the General Meeting of the
Society.

The decease was announced of the following members:

Rear Admiral George W. Melville, U. S. N., at Philadelphia
on March 17, 1912, xt. 71.

Professor Thomas H. Montgomery, Jr., at Philadelphia on
March 19, 1912, xt. 39.

Prof. A. Lawrence Rotch, at Boston on April 7, 1912, zt. 51.

The following papers were read:

“The Roentgen Rays—Principles underlying Production, De-
velopment of Apparatus and Usefulness in Medicine and
Surgery,” by Dr. Willis F. Manges (introduced by Dr. W.
W. Keen). Discussed by Doctors Goodspeed, Tyson, Coplin,
and Keen.

“The Japanese Verb So-Called,” by Mr. Benjamin Smith
Lyman.

x MINUTES. [April 18,

General Meeting, April 18, 10, and 20.
Thursday, April roth. Opening Session, 2 o'clock.
WILLtiAmM W. KEEN, M.D., LL.D., President, in the Chair.

Letters were received from The American Oriental Society,
appointing Prof. A. V. Williams Jackson, The American Philo-
logical Society, appointing Prof. John Carew Rolfe, The Archzo-
logical Institute of America, appointing Prof. Harry Langford
Wilson, to represent them respectively at the General Meeting.

The decease was announced of Rev. Charles G. Ames, at Boston,
April 15, 1912, zt. 83.

The following papers were read: :

“Some Former Members of the American Philosophical So-
ciety,’ by Thomas Willing Balch, Philadelphia. Discussed
by Mr. Harrison Morris.

“The Diary of a Voyage to the United States, by Moreau de
Saint Méry,”’ by Stewart L. Mims, B.A., Instructor in His-
tory, Yale University. (Introduced by Mr. J. G. Rosen-
garten.) Discussed by Mr. Rosengarten.

“The Legendary and Myth-Making Process in Histories of the
American Revolution,’ by Sydney George Fisher, A.B.,
LL.D., Philadelphia. j

“Bardaisan and the Odes of Solomon,” by William Romaine
Newbold, Ph.D., Professor of Philosophy, University of
Pennsylvania.

“Sumerian Bookkeeping Five Thousand Years Ago” (illus-
trated), by George A. Barton, Ph.D., Professor:of Semitic
Languages, Bryn Mawr College.

“The Political Ideals of Ulrich von Hutten,” by Kuno Francke,
Ph.D., LL.D., Professor of History of German Culture, Har-
vard University.

“Some Anthropological Aspects of the Brain with Reference
to Race, Sex and Intellect,’ by Edward A. Spitzka, M.D.,
Professor of Anatomy, Jefferson Medical College, Philadel-
phia. Discussed by Professor Haupt and Mr. Fisher.

. “Waterway Conservation” (illustrated), by Louis M. Haupt,

Philadelphia. Discussed by Mr. Sidney George Fisher.

1912.] MINUTES. xi

Thursday Evening, April 18, 8 o'clock.

Celebration of the Centenary of the Introduction of Gas as an
Iiluminant.

Under the auspices of THE AMERICAN PHILOSOPHICAL SOCIETY,
THE FRANKLIN INSTITUTE, THE AMERICAN CHEMICAL
Society, THE AMERICAN GAs INSTITUTE.

Wiiiiam W. KEEN, M.D., LL.D., in the Chair.

“ By-Products in Gas Manufacture,” by Charles E. Munroe,
Professor of Chemistry, George Washington University,
Washington.

For the titles of the addresses on Friday, April 19, see the

special programme.

Friday Morning, April 19.
WiLi1AM W. KEEN, M.D., LL.D., President, in the Chair.

Morning Session—t1o0.05 o'clock.

The following papers were read:

“Heredity of Feeble-mindedness,” by Henry H. Goddard,
Director of Research, The Training School, Vineland, N. J.
(Introduced by Dr. Henry H. Donaldson.)

“The Inheritable Factors of Epilepsy,’ by David F. Weeks,
M.D., Superintendent of the New Jersey State Village for
Epileptics at Skillman. (Introduced by Dr. Henry H. Don-
aldson. )

“Ts the Control of Embryonic Development a Practical Prob-
lem?” by Charles R. Stockard, Ph.D., Professor of Anatomy,
Cornell University Medical College. (Introduced by Dr.
Henry H. Donaldson.) Discussed by Doctors Donaldson,
A. C. Abbott, Goddard, Weeks, Stockard, and Bogert.

“ An Avian Tumor in Its Relation to the Tumor Problem,” by
Peyton Rous, M.D., of the Rockefeller Institute, New York.

xii MINUTES. [April 19,

(Introduced by Dr. Alexander C. Abbott.) Discussed by
Doctors Keen and Bogert.

“Protein Poison: Its Preparation and Its Nature,” by Victor
C. Vaughan, M.D., LL.D., Professor of Hygiene and Physio-
logical Chemistry, Universe: of Michigan.

“Bacterial Vaccines, with Special Reference to Typhoid
Prophylaxis,” by Frederick F. Russell, M.D., Major, U. S.
A., Curator of Army Medical Museum, Washington, D. C.
(Introduced by Dr. Alexander C. Abbott.) Discussed by
Doctors Abbott, Bogert and Vaughan.

“Prolonged Active Life,’ by Alexis Carrell, M.D., of The
Rockefeller Institute, New York. Discussed by Dr. Keen.

“ Dynamical Theory of the Globular Clusters and of the Cluster-
ing Power Inferred by Herschel from the Observed Figures
of Sidereal Systems of High Order,” by T. J. J. See, Ph.D.,
of the U. S. Naval Observatory, Mare Island, California.

“Some Notes on Persian Mystic Poetry,’ by A. V. Williams
Jackson, Ph.D., LL.D., Professor of Indo-Iranian Languaaess
Columbia ene New York.

A fternoon Session—2 o'clock.
WituiAM B. Scott, Ph.D., LL.D., Vice-President, in the Chair.

Exhibition of Volumes of Illustrations of North American
Vegetation, by John W. Harshberger, Ph.D., Professor of
Botany, University of Pennsylvania. Discussed by Pro-
fessor Haupt.

“History of the Fungus of the Chestnut Tree Die? by
William G. Farlow, Ph.D., LL.D., Professor of Cryptogamic
Botany, Harvard Uniwersiny

“The Classification of the Black Oaks”’ (illustrated), “a Wil-
liam Trelease, Sc.D., LL.D., Director of Missouri Botanical
Garden, St. Louis.

“The Mammals of the Patagonian Miocene” (illustrated), by
William B. Scott, Ph.D., LL.D., Professor of Geology and
Paleontology, Princeton University.

de ee NN ee a eee

Re aa ee me eRe AE Oe ey eS eR Ce ae

1912.] MINUTES. xiii

“Tllustrations of Remarkable Cambrian Fossils from British
Columbia” (illustrated), by Charles D. Walcott, Sc.D.,
LL.D., Secretary of the Smithsonian Institution, Washington.

“Some Considerations Bearing Upon the Origin of Lava”
(illustrated), by. William H. Hobbs, Ph.D., Professor of
Geology, University of Michigan. Discussed by Professor
Scott and Dr. Clarke.

“Recent Archeological Discoveries in Peru” (illustrated), by
Hiram Bingham, M.A., Ph.D., Curator of Latin American
Collections of Yale University. (Introduced Mr. Henry G.
Bryant.) Discussed by Professor Scott and Mr. Bingham.

“The Discovery of the Continent of Antarctica by Americans:
An Historical Vindication,” by General Adolphus W. Greely,
U. S. A., of Washington. Discussed by Mr. E. S. Balch,
Professor Hobbs, and General Greely.

“ The Interrelations of Eight Fundamental Properties of Classes
of Functions,” by Arthur D. Pitcher, Assistant Professor of
Mathematics, Dartmouth College. (Introduced by Prof.
Eliakim H. Moore.)

Evening Session, 8 o'clock.

Robert Williams Wood, LL.D., Professor of Experimental
Physics at Johns Hopkins University, Baltimore, gave an illustrated
lecture on “ The Study of Nature by Invisible Light, with Especial
- Reference to Astronomy and Physics.”

Saturday, April 20.
Executive Session—o.30 o’clock.

Wittiam W. KEEN, M.D., LL.D., President, in the Chair.

_ Pending nominations for membership were read and the polls
opened.
Secretary Keller and Dr. Holland, tellers, subsequently reported
that the following nominees had been elected to membership:

MINUTES. [April 20,

Residents of the United States.

Albert T. Clay, B.A., Ph.D., New Haven,
George W. Crile, M.D., Ph.D., Cleveland,
Arthur Louis Day, Ph.D., Washington,

Edward Curtis Franklin, Ph.D., Washington,
John Grier Hibben, Ph.D., LL.D., Princeton,

G. Carl Huber, M.D., Ann Arbor,

James Furman Kemp, Sc.D., New York,

Arthur Henry Lea, B.A., Philadelphia,

John Matthews Manly, Ph.D., Chicago,

Edward Bennett Rosa, Sc.D., Ph.D., Washington,
Frank Schlesinger, A.M., Ph.D., Allegheny, Pa.,
George E. de Schweintiz, M.D., Philadelphia,
Frederick Winslow Taylor, M.E., Philadelphia,
Roland Thaxter, A.M., Ph.D., Cambridge, Mass.,
Oswald Veblen, Princeton.

Foreign Residents.

George Friedrich Julius Arthur Auwers, Ph.D., Berlin,
Wilhelm Ostwald, Sc.D., LL.D., Leipzig,
Magnus Gustaf Retzius, Stockholm.

The following papers were read:

“Some Geochemical Statistics,’ by Frank W. Clarke, Se.D.,
LL.D., U. S. Geological Survey. Discussed by Professor
Hobbs and Dr. Clarke.

“Some General Results of the Work of a Century on the Atomic
Weights of the Chemical Elements,” by Gustavus D. Hin-
richs, of St. Louis.

“Absorption Spectra and the Solvate Theory of Solution”
(illustrated), by Harry C. Jones, Ph.D., Professor of ae
ical Chemistry, Johns Hopkins diver.

“The Classification of Carbon Compounds,” by Marston T.
Bogert, Ph.B., LL.D., Prof. of Chemistry, Columbia Uniy.
“An Autocollimating Mounting for a Concave Grating” (illus-

trated), by Horace Clark Richards, Ph.D., Professor of

' Mathematical Physics, University of Pennsylvania..

1912.] MINUTES. xv

“Thermal Relations of Solutions,” by William F. Magie, M.A.,
Ph.D., Professor of Physics, Princeton University.

“The Measurement of Temperature up to 1750° C.” (illus-
trated), by Arthur L. Day, B.A., Ph.D., Director of the
Geophysical Laboratory of the Carnegie Institution.

“Selective Scattering Reflection and Absorption by Resonating
Gas Molecules” (illustrated), by Robert Williams Wood,
LL.D., Prof. of Experimental Physics, Johns Hopkins Univ.

“Some Observations on the Transmission of Sound through
Walls,” by Arthur Gordon Webster, Ph.D., LL.D., Professor
of Physics, Clark University, Worcester, Mass.

“New Magnetic Charts of the Indian Ocean” (illustrated), by
Louis A. Bauer, C.E., Ph.D., Director of the Department of
Terrestrial Magnetism of the Carnegie Institution.

“The Treaty-Making Power of the United States and the
Methods of its Enforcement as Affecting the Police Powers
of the States,’ by Charles H. Burr, of Philadelphia, the
Essay to which the Henry M. Phillips Prize was awarded.

Afternoon Session—2 o'clock.

Epwarp C. PICKERING, Sc.D., LL.D., F.R.S., Vice-President,
in the Chair.

Prof. B. Osgood Pierce, a recently elected member, and Dr.
Arthur Louis Day and Prof. Frank Schlesinger, newly elected mem-
bers, signed the Laws and were admitted into the Society.

The following papers were read:

“Symposium on Stellar Spectroscopy ”’:

“Radial Velocity” (illustrated), by William W. Campbell.
Se.D., LL.D., Professor of Astronomy, Lick Observa-
tory, University of California.

“ Objective Prism Spectra,” by Edward C. Pickering, Sc.D.,
LL.D., Professor of Astronomy, Harvard University.

“The New Star in Gemini,” by Storrs B. Barrett, of the
Yerkes Observatory, Williams Bay, Wisconsin. (In-
troduced by Edward B. Frost, D.Sc.)

xvi MINUTES. [May 3,

“On the Prospect of Obtaining Radial Velocities by Means
of the Objective Prism,” by Frank Schlesinger, M.A..,
Ph.D., Professor of Astronomy, University of
Pittsburgh.

“Relations Between the Spectra and Other Characteristics
of the Stars” (illustrated), by Henry N. Russell,
Ph.D., Professor of Astronomy, Princeton University.

Stated Meeting, May 3, 1912.
WituiaM W. Keen, M.D., LL.D., President, in the Chair.

Dr. William T. Sedgwick, a recently elected member, and Mr.
Arthur H. Lea and Dr. George E. de Schweinitz, newly elected
members, signed the Laws and were admitted into the Society.

Letters accepting membership were received from

Arthur Louis Day, Ph.D., Washington,

John Grier Hibben, Ph.D., LL.D., Princeton,
James Furman Kemp, Sc.D., New York,

Arthur Henry Lea, A.B., Philadelphia,

Frank Schlesinger, M.A., Ph.D., Allegheny, Pa.,
George E. de Schweinitz, M.D., Philadelphia,
Roland Thaxter, A.M., Ph.D., Cambridge, Mass.,
Oswald Veblen, Princeton.

From the III Congresso Archeologico Internazionale, Rome,
October, 1912, inviting the Society to be represented thereat
by a delegate. .

From the Association des Ingenieurs Electriciens, announcing
the conditions of the Triennial Prize for 1914, under the
Fondation George Montefiore.

A paper entitled “Is Typhoid Fever a Rural Disease?’ was read
by Dr. W. T. Sedgwick, of Boston, Mr. G. R. Taylor, of Scranton,
and Mr. J. S. MacNutt, of Orange, N. J., and was discussed by
Doctors Abbott, Mr. John F. Lewis, Doctors Tyson, Smith and
Stengel and Professor Sedgwick. :

1912.]

MINUTES. xvit

Stated Meeting October 4th, 1912.
Wittiam W. Keen, M.D., LL.D., President, in the Chair.

Letters accepting membership were received from:

Alfred T. Clay, B.A., Ph.D., New Haven.

George W. Crile, M.D., Ph.D., Cleveland.

Edward Curtis Franklin, Ph.D., Washington, D. C.

G. Carl Huber, M.D., Ann Arbor, Michigan.

John Matthews Manly, Ph.D., Chicago, II.

Edward Bennett Rosa, Sc.D., Ph.D., Washington.
Frederick Winslow Taylor, M.E., Philadelphia.
George Friedrich Julius Arthur Auwers, Ph.D., Berlin.
Wilhelm Ostwald, Sc.D., LL.D., Leipzig.

Magnus Gustaf Retzius, Stockholm.

Invitations were received:

From the organizing committee of the First International Eu-
genics Congress, to be represented by a delegate at the Con-
gress to be held on July 24-30, in London.

From the American Antiquarian Society, to be represented at
the celebration of the one hundredth anniversary of its foun-
dation, to be held at Worcester on October 15, 16, 1912.

From the Naturwissenschaftliche Verein fiir Steiermark, to be
represented at the celebration of the fiftieth anniversary of
its foundation on November 10, 1912.

From the Rice Institute, to be represented at its inauguration at
Houston, Texas, on October 10-12, 1912.

From the Fifteenth International Congress of Hygiene and
Demography, to participate in the Congress to be held at
Washington on September 27-28, 1912.

From the State of New York, through the Education Depart-
ment, to attend the dedication of the State Education Build-
ing, at Albany, on November 15 to 17, 1912.

From the Academy of Natural Sciences of Philadelphia, ex-
pressing its gratitude for the Society’s congratulations on the
occasion of its Centenary Celebration.

VLU MINUTES. [Nov. 1,

From Sir George Otto Trevelyan:

WALLINGTON, CAmMBo, Northumberland,
August 16, 1912,

Dear Sirs: I always read, with interest and admiration, everything in the
Proceedings of the American Philosophical Society the technical form of
which is not beyond me; and I fully appreciate the deserved and wide-
spread influence of that publication. In your number of April to June, 1912,
there is an article on American history in which it is stated, three several
times over, that Charles James Fox was my “relative”; and it is implied,
not obscurely, that I wrote with a family partiality about him, and about
the public events of his period in England and America. I do not suppose
that your readers concern themselves much about the personal question in
relation to me; but it must be remembered that the statement of a fact, made
with emphasis and circumstance, in the pages of the American Philosophical
Society’s journal, bears the stamp of authority; and what is written there
remains written. I therefore feel bound to say that Charles Fox is in no
sense my “relative” and that between his family and mine (I am sorry for
it) there never existed any connection by blood or marriage, however remote.
Indeed my progenitors on my father’s side, voted sturdily against him in
Parliament, beat his supporters at election, perfectly abominated him in his
character of a friend of liberty and humanity, and held, at the time, the
same view of his policy and attitude towards America which the author of
your article holds to-day.

I remain, Sirs,

Yours very faithfully,
GEORGE Otto TREVELYAN.

To the Secretaries of the American Philosophical Society.

The decease of the following members was announced:
William W. Goodwin, Ph.D., LL.D., D.C.L., at Cambridge,
Mass., on June 15, 1912, zt. 81.
Thomas Hewson Bache, M.D., at Philadelphia, on July 8, 1912,
zt. 86.
Jules Henri Poincaré, Sc.D., at Paris, France, on July 17, 1912,
zt. 58.
Horace Howard Furness, Ph.D., Litt.D., LL.D., at Wallingford,
Pa., on August 13, 1912, et.79.
Archibald Loudon Snowden, LL.D., at Philadelphia, on Septem-
ber 7, 1912, zt. 75. 3
The following papers were read:
“Restoration of North and South American Mammals,” by
Prof. W. B. Scott.

1912.] MINUTES. ka

“Some Tic-transmitted Diseases,” by Prof. G. H. F. Nuttall, of
Cambridge, England (introduced by Dr. A. C. Abbott).

“ Acceleration of Development in Fossil Cephalapoda,” by Prof.
James Perrin Smith, Ph.D. (introduced by Prof. John C.
Branner).

Stated Meeting November 1, 1912.
Wittiam W. Keen, M.D., LL.D., President, in the Chair.

Sir William Ramsay, elected to membership in 1899, and Mr.
Frederick W. Taylor, a newly elected member, having subscribed the
Laws, were admitted into the Society.

The decease was announced of Lewis Boss, A.M., LL.D., at Al-
bany, N. Y., on October 5, 1912, zt. 66.

The following papers were read:

“Electrons,” by Sir William Ramsay, K.C.B., LL.D., F.R.S.
“The Formation of Coal Beds,” by John J. Stevenson, A.M.,
ELI.

Stated Meeting December 6, 1912.
I. Mrnts Hays, A.M., M.D., in the Chair.

Professor Oswald Veblen, a newly elected member, having sub-
scribed the Laws, was admitted into the Society.
Decease of the following members was announced:
John William Mallett, M.D., LL.D., at Charlottesville, Va., on
November 7, 1912, zt. 80.
Richard Alsop Cleemann, at Philadelphia, on November 109,
1912, xt. 72.
Inman Horner, at Philadelphia, on November 28, 1912, zt. 66.
Professor Oswald Veblen read an obituary notice of Professor
Henri Poincaré.
Professor Felix E. Schelling read a paper on the “ Elizabethan
Playhouse.”

INDEX

A

Absorption spectra and the solvate
theory of solutions, xiv

Academy of Natural Sciences, cen-
tennial, iv

American Philosophical Society, some
former members of, 580, +

American Revolution, Legendary and
myth-making process in _ histories
of the, 53, x

Antarctica, discovery of, by Ameri-
cans, -+iit

Association des Ingénieurs Elec-
triciens, for 1914, triennial prize,

xvi

Atomic weights of the chemical ele-
ments, xiv

Autocollimating mounting for a con-
cave grating, 554, riv

B

Balch, some former members of the
Society, 580, x

Bardaism and the odes of Solomon,
ea

Barrett, notes on plates of nova

geminorum of 1912, 568, xi

Barton, Sumerian bookkeeping, five
thousand years ago, r

Bauer, new magnetic charts of the
Indian Ocean, 240, xv

Bingham, recent archeological dis-
coveries in Peru, +iii

Bogert, classification of carbon com-
pounds, 252, rtv

Bookkeeping, Sumerian, five thousand
years ago, x

Brain, some anthropological aspects
of the, with reference to race, sex,
and intellect, *

Burr, treaty-making power of the
United States, 271, rv

c

Campbell, radial velocity, rv

Carbon compounds, 252, xiv

Carrell, prolonged active life, rit

Chestnut blight, viii

—— tree disease, rit

Clarke, some geochemical statistics,
214, xiv

Coal beds, formation of, 423

Concave _ grating, autocollimating
escacaaig| for, 554, xiv

sare 4 @Histoire des Religions

(IVth) at Leyden, invitation to be
represented at, ir

—— des Orientalistes (16th Session),
invitation to be represented at, v

International d’Anthropologie
et d’Archéologie Préhistorique,
Meeting of, v

Congress of Chemistry and of Pure
and Applied Physics, invitation to
participate in memorial to Pro-
fessor Mendéléeff, iti

Congresso Archzologico _ Interna-
zionale (III), Rome, invitation to
be represented at, rv

Crile, phylogenetic association in re-
lation to the emotions, 76

D

Day, measurement of temperature up
to 750° C. rv

Dickson, notice of Du Ponceau, vi

Doolittle, secular variation of the ele-
ments of the orbits of the four
inner planets, vilt

Du Ponceau, notice of, v, vi

—— relics of, v

Dynamical theory of the globular
clusters, 118, xii

E

Embryonic development, control of,
IQl, xi

Epilepsy analyzed by the Mendelian
method, heredity of, 1 ;

F

Farlow, chestnut tree disease, xii
Feeble-mindedness, heredity of, 173,

xt

Fisher, legendary and myth-making
process in histories of the Ameri-
can Revolution, 53, +

Fossils, Cambrian, from British Co-
lumbia, xtii

Francke. the political ideals of Ulrich

von Hutton, x

Bae 1 7

vutt

Functions, the interrelations of
eight fundamental properties of
classes of, xiii

G

Garesché, Miss Aline, gift of relics
of Peter S. Duponceau, v

Gas as an illuminant, centenary of
introduction of, xi

—— manufacture,
xi

—— molecules, selective scattering,
reflection and absorption by reso-
nating, rv

Gemini, the new star in, 568, xv

Geochemical statistics, 214

Globular clusters, dynamical theory
of, 118, xit

Goddard, heredity of feeble-minded-
ness, 173, 471

Grand Canyon district, physical his-
tory of, iti

Greely, discovery of Antarctica by
Americans, *iit

by-products in,

H

Haupt, waterway conservation, +

Hibben, inauguration of President,
invitation to, ix

Hinrichs, atomic weights
chemical elements, xiv

Hobbs, origin of lava, xiii

von Hutton, Ulrich, the political
ideals of, x

of the

I

Indian Ocean, new magnetic charts
of the, 240, rv

Indices, the validity of the law of
rational, 103, viii

International Congress of Applied
Chemistry (8th), invitation to, ii

J

Jackson, Persian mystic poetry, rit

Japanese verb, 91, ix

Johnson, physical history of the
Grand Canyon district, #7

Jones, absorption spectra and the
solvate theory of solutions, xiv

L

Lava, origin of, rit s

Life, prolonged active, «1

Light, invisible, study of Nature by,
xiii

Lunar studies, exposition of, tii

INDEX.

Lyman, nature of the Japanese verb,
so-called, 91, ix.

Magie, thermal relations of solutions,
235, XV
Mammals of the Patagonian Mio-
cene, xii
Manges, Roentgen rays, ix
Meeting, general, +
—— stated, ii, iv, viii, ix, xvi
Members deceased:
Ames, Charles G.,
Brush, George J., viii
Crowell, Edward P., viii
Davidson, George, it
Hooker, Sir Joseph Dalton, iii
Le Moine, Sir James M., viii
Lister, Rt. Hon. Joseph, Lord,

viii
Meigs, Arthur V., iii :
Melville, Rear Admiral George
W., ix
Montgomery, Thomas H., ix
Rotch, A. Lawrence, ix
— elected, riv
—— presented, xv, xvi
Membership accepted, xvi, xvii
Mendeléeff, memorial to, ti
Metcalf, the chestnut blight, viii
Milky Way, depth of the, i, wi
Miller, notice of Du Ponceau, v
Mimms, Moreau de St. Méry’s diary
of voyage to the United States,
242, #
Minutes, iii
Montefiore, triennial prize for 1014,
Fondation George, xvi
Moore, contraband of war, 18, viii
Moreau de Saint Méry, Diary of a
voyage to the United States by,

242, £ :
Munroe, by-products in gas manu-
facture, +1

N
Nature, a study of, by invisible light,

xiii
Newbold, Bardaism and the odes of
Solomon, +

1)

Oaks, the classification of the black,
167, xii

Obituary notice of Jules Henri Poin-
caré, 568, iit

Officers and Council, election of, iti

INDEX.

P

Peru, recent archeological dis-
coveries in, xiii

Phillips, Henry M., Prize Essay, re-
port of the judges, 269.

Phylogenetic association in relation
to the emotions, 76

Pickering, objective prism spectra,

564, xv

Pitcher, interrelations of eight funda-
mental properties of classes of
functions, -xtit

Planets, inner, secular variation of
the orbits of, witt

Poetry, Persian mystic, xii

Poincaré, Jules Henri, obituary no-
tice of, ili

Poison, the protein, 206, xii

Princeton University, invitation to be
represented at the inauguration of
President Hibben, ir

Prism spectra, objective, rv

R

Richards, an autocollimating mount-
ing for a concave grating, 554, xiv

Roentgen rays, ir

Rodgers, validity of the law of
rational indices, 103, viii

Rous, avian tumor in relation to the
tumor problem, 201, +i

Royal Society, invitation to be repre-
sented at its 2s5oth anniversary, tv

Russell, bacterial vaccines, rii

—— relations between the spectra
and other characteristics of the
stars, 560, xvi

s

Sedgwick, is typhoid fever a rural
disease? xvi

See, determination of the depth of
the Milky Way, 1, iti

—— dynamical theory of the globular
clusters, 118, xii

Schlesinger, radial velocities, xvi

Scott, mammals of the Patagonian
Miocene, xit

Sociedad Astronomia de Barcelona,
exposition of lunar studies, invita-
tion to be represented, iti

Solutions, thermal relations of, 235,
xv

rxiit

Sound, transmission of,
walls, xv

Spitzka, some anthropological aspects
of the brain with reference to race,
sex and intellect, x

Stars, relations between the spectra
and other characteristics of the,
xvi

Statistics, geochemical, riv

Stellar spectroscopy, symposium on,

through

xv
Stevenson, formation of coal beds,

423
Stockard, is the control of embryonic
development a practical problem?
IQI, xt
T

Temperature, measurement of, up to
1750° C., xv

Treaty-making power of the United
States, 271, rv

Trelease, classification of the black
oaks, 167, +it

Tumor, avian, in its relation to the
tumor problem, 201, xt

Typhoid fever, is it a rural disease?
xvi

Vv

Vaccines, bacterial, rti

Vaughan, the protein poison, 206, rii

Veblen, obituary notice of Jules
Henri Poincaré, iii, rviit

Vegetation, North American, illustra-
tions of, xii

Velocity, radial, xv

, on the prospect of obtain-

ing, by means of the objective

prism, xvi

Ww

Walcott, Cambrian fossils
British Columbia, xiii

War, contraband of, 18, viti

Waterway conservation, +

Webster, transmission of
through walls, xv

Weeks, heredity of epilepsy analyzed
by the Mendelian method, 178, xi

Wood, selective scattering, reflection
and absorption by resonating gas
molecules, xv

——,, the study of Nature by invisible
light, xiii

from

sound

ee Se Nee se

Pe ee es eae a eN,

-_ ProcEeDINGs Am. PHiLos. Soc. Vol. LI. No. 204 Puate |

te
*,
aieeys
a
-
a

Normal Rabbit: Cerebrum.

Frightened Rabbit: Cerebrum. The rabbit was frightened once and immediately
killed. Note the hyperchromatism.

yg ee
¥ & 4° * ae. ;
2 -

Frightened Rabbit: Cerebrum. The rabbit was frightened once and killed at the
end of six hours. The cells are more swollen than in the normal.

FEAR IN RAsBITs.

These and the following cuts are intended to show that fear and exophthalmic goitre
cause demonstrable morphologic changes in the nerve cells of different parts of the brain
which vary in degree [rather than in specificity] according to the part of the brain.

The rabbits used in the fearexperiments were frightened by dogs without being injured

_ or without making muscular efforts of any consequence.

0

eI

pe) nuke

¥

['I1L %¥[q Go syno YIM Uostreduros 40g] —*yua0 zad L'0 ‘s][a9 paysnuyxe {*yua9 sod SPE ‘spoo ponsyry

Syuao tad g'hg ‘s]jao aay + SVM s}Iqqet Ud} WO, sjuNod ][99 afurlyANG [VIUasayIp Ua} Jo advioav oy], “wMJaqosay — Iqqua [eULION,

I] 31V1d

OF
ui soparh

Sean

eee

Ne

pad
SEO

Fore 2h
mage

a ee ee aes

PROCEEDINGS Am. PHiLos. Soc. VoL. LI. No. 204 PLATE Ill

Frightened rabbit: Cerebellum. The rabbit was frightened once and £7//ed imme-
, diately. The average of ten differential Purkinje cell counts from ten such experiments
was: Active cells, 83.4 per cent.; fatigued cells 15.7 per cent.; exhausted cells, 0.9 per
cent,

Frightened rabbit: Cerebellum. The rabbit was frightened once and 4illed at the
end of two and one half hours. The average of five differential Purkinje cell counts from
five such experiments was: Active cells, 55.6 per cent.; fatigued cells, 35.4 per cent.;
exhausted cells, 9.0 per cent.

: FEAR IN RABBITS.

These cuts and the cell counts as given above illustrate several important points, viz.,
that cerebral stimulation by fear causes, first, demonstrable morphologic changes in brain
cells, second, a marked early increase in the number of active [and hence also hyper-
chromatic] cells, and, third, that this stimulation is followed by later and more serious
morphologic changes in the cells which do not attain a maximum until from 2% to 6
hours have elapsed after the period of fright.

i

pin

PROCEEDINGS Am. PHiILOs. Soc. VoL. LI. No. 204 PLATE IV

Normal rabbit: Medulla.

Frightened rabbit: Medulla. The rabbit was frightened once and immed-
tately killed.

FEAR IN RABBITS,

Ae Fae Sn OS

PROCEEDINGS Am. PHiLos. Soc. VoL. LI. No. 204 PLATE V

Normal rabbit: Cervical cord, anterior horn.

Frightened rabbit: Cervical cord, anterior horn. The rabbit was frightened once
and immediately killed. Note the marked hyperchromatism,

FEAR IN RABBITS.

ah

a
5S aa
3 ‘a.

PRoceeDINGS Am. PHiILOS. Soc. VoL. LI. No. 204 PLaTe VI

Fic. 1. ‘* Normal’” Human Cerebrum. Fic. 2. Exophthalmic Goitre Cerebrum

Exophthalmic Goitre. The contrast between the normal and exophthalmic goitre
cerebrum sections is more marked than between the medulla sections. As a rough gen-
eral rule it may be said that the lower the portion of the central nervous system affected
the slighter the degree of injury.

eee
pe.

PROCEEDINGS Am. PHiILos. Soc. VoL.-LI No. 204 PLaTe VII

Fic. 1. ‘‘ Normal’’ Human Cerebellum. Fic. 2. Exophthalmic Goitre Cerebellum.

Exophthalmic Goitre. Note the marked injury of the Purkinje cells, and the striking
contrast between the general appearance of the two cuts. The average differential Purkinje
cell count from five cases of exophthalmic goitre was: Active cells, 34.2 per cent.; fatigued

cells, 37.6 per cent.; exhausted cells, 28.2 per cent.

PROCEEDINGS Am. PHiILOS. Soc. VoL. LI. No. 204

Fic. 1. ‘*‘ Normal’? Human Medulla.

EXOPHTHALMIC GOITRE.

Pate VIIA.

Fic. 2. Exophthalmic Goitre Medulla.

wes ah
Y ee LT ne i
° % ; 4” ~ >

PHOTOGRAPHS OF STAR CLUSTERS TAKEN AT THE LICK

AND THE FoOYAL OBSERVATORY. CAPE OF

oom A

BROCEEDINGS AM. PHILO

PROCEEDINGS Am. PHILOS. Soc. VoL. LI. No. 204 PLATE X

BLack Oaks

PROCEEDINGS Am. PHiLos. Soc. VoL. LI. No. 204 PLATE XI

I 2 3

wn

CT RTT Re Sn eS ee ee ee

a an en eT

4
3

eee 6

SCARLET OAKS

PROCEEDINGS Am. PHiLos. Soc. VoL. LI. No. 204 PLATE XII

I 4 2 5

8 6 9 3 7

Swamp OAKS

PROCEEDINGS Am. PHiLos. Soc. VoL. LI. No. 204 PLATE XIll

I 2

3 -

uw

OLIVE AND HOLLY OAKS

the uae :

args

Se

BINDING SECT. APR27 19/0

Q American Philosophical
ak Society, Philadelphia
P5 Proceedings
v.51

Physical &

Applied Se,

Senals

PLEASE DO NOT REMOVE
CARDS OR SLIPS FROM THIS POCKET

UNIVERSITY OF TORONTO LIBRARY

(haa, So baenicn ted
es th ede Bay
dish oe at Wi pte ben oh oe: PROMS MEE NG ote
vacated fat iakd fe ¥ Cte

aE Fale &.

eae

Beer

£44

fod sik Seakadl

ire Bitte cays

Sok o iver «
sian rg ole
ee

oe + :
Di deeciebareia tal oaks ee aoa

Pid ars
entat

bceten
Feo 28

Gaede

“ Ce
bein 3 ee
St toe ae

hdmtencce ne
CR arh ee dec
7 Bat is

. With ie
Nee

eR Ube waters es

ee Tere (8 Ot ee Oe ee

rata Se Sets Mee eta a
Y ar’