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Vol. XXXIV, 





Jan. 4, 1895.] 




Vol. XXXIV. Januaky. 1895. No. 147. 

Stated Meeting^ January 4-, 1896. 
President, Mr. Fraley, in the Chair. 

Correspondence was submitted as follows : 

Letters of resignation were received from Dr. George Straw- 
bridge, Philadelphia ; Prof. Isaac Sharpless, Haverford, Pa. 

Accessions to the Library were reported from the Royal 
Asiatic Society (China Branch), Shanghai, China ; Anthropo- 
logical Society, Tokyo, Japan ; Societe de Geographic, Societe 
Finno Ougrienne, Ilelsingfors, Finland; Societe Physico- 
Mathematique, Kasan, Rassia ; Societe de des JSTaturalistes de 
la Nouvelle Rus.-jie, Odessa ; Academie Imperiale des Sciences, 
St. Petersburg, Russia ; A.cadeniie R. Suedoise des Sciences, 
Stockholm, Sweden ; Academie R. des Sciences, Bruxelles, 
Belgique; Deutsche Seevvarte, Hamburg, Germany; Bayer- 
ische Botanische Gesellschaft, Munich ; Editors of II Nuovo 
Cimtnto, Pisa, Italy ; R. Accademia dei Lincei, Rome, Italy ; 
Societe des Sciences, Physiques, etc., Bordeaux, France ; 
Academie des Sciences, Arts, etc., Dijon, France ; Academie 
des Sciences, La Rochelle, France; Societe d 'Agriculture, 
Sciences, etc., Lyons, France ; Societd Languedocienne de 
Geographic, Montpellier, France ; Societe Francoise de 
Physique, Societe de D'Enseignement, Societe de Geographic, 
Redaction de Cosmos, Marquis de Nadaillac, Paris, France ; 
Society des Antiquaries de la Morenie, Saint Omer, France; 
Royal Society, Royal Astronomical Society, Editors of Nature, 


•^ [Jan. 4, 

Meteorological Office, London, Eng. ; Geological Society, Man- 
chester, Eng. ; Harvard University, Cambridge, Mass. ; Editor 
of the Popular IScience Monthly^ lion. Charles P. Daly, New 
York, N. Y. ; Department of State, Department of the Interior, 
Washington, D.C. ; University of California, Sacramento. 

The following death was announced : 

Prof. James A. Rhoads, January 2, 1895, aet. 73. 

On motion, the President was authorized to appoint a suit- 
able person to prepare the usual obituary notice. Dr. Henry 
Hartshorne was subsequently appointed. 

Reports of the Clerks and Judges of the election were read, 
and the report of the election was submitted : 

Frederick Fraley. 

Vice- Presidents. 
E. Otis Kendall, W. S. W. Ruschenberger, J. P. Lesley." 

Secretaries. t 

George F. Barker, Daniel G. Brintm, Henry Phillips, Jr., 
George H. Horn. 

Patterson DuBois, J, Cheston Morris, Richard Meade Bache. 

J. Sergeant Price. 


Richard Wood, William V. McKean, Richard Vaux, 
Henry Carey Baird. 

Mr. J. G. Rosengarten read a paper entitled " The Paris 
Book Exhibition of 1994." 

1895.] " 

Prof. Cope spoke of the existence of man in Java in palajo- 
lithic times, drawn from the remains of skeletons found in 
volcanic strata. 

Mr. Henry Phillips, Jr., was renominated for Librarian, and 
the nominations closed. 

The amendments to the Laws were discussed. 

Mr. Tatham moved the rejection of the part on reelection. 

Mr. Fralej explained the rules relating to the passage of 
amendments to the By-Laws. 

Moved and seconded that further consideration of the By- 
Laws be postponed. 

The report of the Finance Committee was presented, and the 
appropriations for the year were passed, a legal quorum of 
members being present. 

And the Society was adjourned by the President. 

Stated Meeting^ January 18^ 1895. 
President, Mr. Fraley, in the Chair. 

Correspondence was submitted as follows : 

Letter of resignation from Kev. G. "W. Anderson, Rosemont, 

Letter from Mr. Hoyt, to the President, in regard to a pro- 
jected National University, was referred to the Secretaries 
with instructions to report. 

Letters of envoy were received from the Geological Survey 
of India, Calcutta ; Socidte de Geographic de Finlande, Hels- 
ingfors ; Academic R. Suedoise des Sciences, Stockholm ; K. 
Akademie der Wissenschaften, Vienna, Austria ; R. Ministero 
della Istruzione Pubblica, Padova, Italia ; Soci^td des Sciences 
Physiques et Naturelles, Bordeaux, France ; Faculte des Sci- 
ences, Marseille, France ; Musee Guimet, Ecole Polytechnique, 

* [Jan. 18, 

Bureau des Longitudes, Marquis de Nadaillac, Paris, France ; 
Radcljffe Observatory, Oxford, England ; Geological and 
Polytechnic Society, Yorkshire, England ; Eoyal Irish Acad- 
emy, Dublin; Dr. Don Estanislao S. Zeballos, Washington, 
D. C. 

Letters of acknowledgment were received from the Soci^te 
Imp. des Naturalistes, Moscow, Russia (139); Prof. J. Pomia- 
lowsky, St. Petersburg, Russia (144, 145); Academic Hon- 
groise des Sciences, Budapest (142, 144, 145) ; Socidte R. de 
Geographic, Antwerp, Belgium (144); Musde R. d'Histoire 
Naturelle, Bibliotheque Royale de Belgique, Bruxelles (142, 
144); K. K. Universitats Sternwarte, Prague, Austria (142, 
141, 145); Section fiir Naturkunde des O. T. C. (142, 144), 
Dr. Friedrich S. Krauss (145), Prof. J. Szombathy, Vienna, 
Austria (142, 141, 145); Naturforschende Gesellschaft des 
Osterlandes, Altenburg, Prussia (145) ; Gesellschaft fiir Erd- 
kunde, Berlin, Prussia (145) ; K. Universitats-Bibliothek, 
Bonn, Prussia (142, 144, 145); K. Sachs. Meteorologische 
Institut, Chemnitz, Saxony (145); Verein fiir Erdkunde, 
Dresden, Saxony (142, 144) ; Oberhessische Gesellschaft fiir 
Natur- und Heilkunde, Giessen, Germany (142, 144, 145) ; 
K. Gesellschaft der Wissenschaften, Gottingen, Prussia (142, 
144, 145) ; K. Leopoldinische Carolinische Akademie, Halle 
a. S., Prussia (145); Wetterauische Gesellschaft, Hanau, Ger- 
many (144); Vogtljindische Altertumsforschende Verein, 
Hohenleuben, Saxony (142, 144, 145); Mr. O. Bohtlingk 
(145), Prof. I. Victor Carus, Leipzig, Saxony (144, 145) ; K. 
Sternwarte, Munich, Bavaria (145); Prof. G. Sergi, Rome, 
Italy (144); R. Accademia delle Scienze, Turin, Italy (142); 
Socidtd Linneenne, Bordeaux, France (145); Societe des Sci- 
ences Naturelles et Archeologique de la Creuse, GutSret, 
France (144); Societd d' Agriculture et d'Histoire Naturelle, 
Lyon, France (180, 140); Musde Guimet, Dr. Edward Pepper, 
Paris, France (145); Sir John Evans, Hemel Hempstead, 
England (145) ; Mr. Juhlin Dannfeld, Col. William Ludlow, 
London, England (145); Geographical Society, Manchester, 
England (145); Natural History Society of Northumberland, 

1895.] ^ 

etc., Newcastle-OQ-Tyne, England (1^5); Royal Geological 
Society of Cornwall, Penzance, England (1-45) ; Society of 
Natural History, Boston, Mass. {Trans. ^ xvii, 3, and xviii, 1) ; 
American Academy of Medicine, Easton, Pa. (144, 145) ; 
Newberry Library, Chicago, 111. (144, 145). 

Accessions to the Library were reported from the Geologi- 
carSurvey of India, Calcutta ; Societe Imp. Russe de Geogra- 
phic, St. Petersburg ; Nederlandsche Maatschappij ter bevor- 
dering van Nijverheid, Amsterdam ; Societe HoUandaise des 
Sciences, Harlem ; Maatschappij der Nederlandsche Letter- 
kunde, Leiden, Z. Holland ; Academic des Sciences, Cracow, 
Austria ; Naturhistorische Landes-Museum von Karnten, Kla- 
genfurt, Austria ; Gesellschaft fiir Erdkunde, Berlin, Prussia ; 
Naturwissenschaftliche Gesellschaft, Chemnitz, Saxony ; 
Oberlausitzisclie Gesellschaft der Wissenschaften, Gcirlitz, 
Prussia ; Verein fiir Erdkunde, Halle a, S., Prussia ; Verein 
fiir Liibeckische Geschicbte und Alterthumskunde, Liibeck, 
Germany ; Deutsche Gesellschaft fiir Anthropologic, Ethnolo- 
gic, etc., Munich, Bavaria; Geographische Gesellschaft, Bern, 
Switzerland; Biblioteca N. C, Firenze, Italia; Societe de 
Geographic, Lille, France ; Directeur de Melusine, Bureau des 
Longitudes, Paris, France; R. Academia de la Historia, Madrid, 
Spain ; Society of Arts, R, Geographical Society, Editors of the 
Geological Magazine, London, England ; Natural History So- 
ciety, Newcastle-on-Tyne, England ; Royal Irish Academy, 
Dublin ; American Statistical Association, Commissioner of 
Public Records, Athenaeum, Mass. Institute of Technology, 
Mass. Historical Society, Mr. Robert C. Winthrop, Jr., Boston, 
Mass.; Museum of Comparative Zoology, Harvard College, 
Cambridge, Mass.; R. I. Historical Society, Providence; Trav- 
elers' Insurance Co., Hartford, Conn. ; Editors of the American 
Journal of Science, Yale University, New Haven, Conn. ; 
Brooklyn Library, Brooklyn, N. Y. ; Hamilton College, Clin- 
ton, N. Y. ; Meteorological Observatory, New York, N, Y. ; 
Mr. William John Potts, Camden, N. J.; College of New 
Jersey, Princeton ; American Chemical Society, Easton, Pa. ; 
Franklin Institute, College of Pharmacy, Dr. Walter M. 

6 [Feb. 1, 

James, Messrs. Willis G. Aale, Henry Phillips, Jr., Philadel- 
phia ; Johns Hopkins University, Editor of the American 
Chemical Journal^ Baltimore, Md. ; Agricultural Experiment 
Stations, Burlington, Yt., Kingston, R. I., Geneva, N. Y., 
Ithaca, N. Y., State College, Pa. 

A framed phototype of the State House was received from 
Mr. F. Gutekunst, Philadelphia. 

Henry Phillips, Jr., was unanimously reelected Librarian of 
the Society for the ensuing year. 

A quorum not being present, no action was taken on the 
proposed amendments to the By-Laws. 

The appointment of the Standing Committees was referred 
to the President to take action and report on before the next 

Prof. Cope read observations on "Prof. Hseckel's Confession 
of Faith." 

Questions were asked, and comments made by Mr. Ingham 
and Dr. Morris. 

Nominations 1302 to 1305 were read. 

And the Society was adjourned by the President. 

Stated Meeting^ February 1, 1896. 
Treasurer, Mr. Pkice, in the Chair. 

Minutes of last meeting were read and approved. 

Correspondence was submitted as follows : 

Letters of envoy were received from the Maatschappij der 
Nederlandsche Letterkunde, Leiden, Z. Holland ; Naturwis- 
senschaftliche Gesellschaft, Chemnitz, Saxony ; Oficina Meteo- 
rologica Argentina, Cordoba, Argentine Republic. 

Letters of acknowledgment were received from the Linnean 
Society of N. South Wales, Sydney (142, 144); Prof. O. 
Donner, Helsingfors, Finland (144, 145) ; Dr. Herman Snellen, 
Jr., Utrecht, Netherlands ( 1-4:4); Academic des Sciences, Cra- 

1895.] * 

COW, Austria (142, 144, 145); Naturforscbende Gesellscliaft, 
Emden, Prussia (142, 144, 145) ; K, Geodiitisches Institut, 
Potsdam, Prussia (144, 145) ; M. A. Des Gloizeaux, Paris, 
Fiance (145); Prof. J. P. Postgate, Cambridge, England, 
Royal Observatory, Edinburgh, Scotland (145); University of 
Nebraska, Lincoln (96-139). 

Accessions to the Library were reported from Comite des 
Conservation des Monuments de I'Art Arabe, Cairo, Egypt; 
Ministerie van Kolonien, Batavia, Java ; Hollandsche Maat- 
schappij van Wetenschappen, Haarlem ; Minister of Interna- 
tional Affairs, The Hague, Netherlands ; Socidte Hongroise 
de Geographic, Budapest ; K. K. Geologische Reichsanstalt, 
Vienna, Austria; AachenerGeschichtsverein, Aachen, Prussia; 
Deutsche Geologische Gesellschaft, K. Geodatische Institut, 
Physiologische Gesellschaft, Messrs. R. Friedliinder & Sohn, 
Berlin, Prussia; Gartenbauverein, Darmstadt, Germany; Prof. 
Dr. Ernest Haeckel, Jena, Germany ; Ministero di Agricoltura 
Industria e Commercio, Rome, Italy ; Philological Society, 
Cambridge, England ; R. Microscopical Society, London, Eng- 
land ; Literary and Philosophical Society, Manchester, Eng- 
land ; American Geographical Society, American Mathemat- 
ical Society, Scientific Alliance, New York, N. Y. ; Hydro- 
graphic Office, Engineers' Club, Editor of the Naturalist's 
Leisure Hour^ Mr. William H. Rau, Philadelphia ; U. S. 
Departments of the Interior, Labor, War, and Agriculture, 
Anthropological Society, U. S. Civil Service Commission, 
Prof. James C. Pilling, Washington, D. C. ; Elisha Mitchell 
Scientific Society, Chapel Hill, N. C. ; Editors of the Journal 
of Comparative Neurology^ Granville, O.; State Board of 
Health, Nashville, Tenn. ; Missouri Historical Society, St. 
Louis; Historical Society, Field Columbian Museum, Chicago, 
111.; State Historical Society, Iowa City, Iowa; Geological 
and Natural History Survey, Minneapolis, Minn.; University 
of Nebraska, Historical Society, Lincoln, Neb. ; Editor of 
El Instructor^ Dr. Jesus Diaz de Leon, Aquascalientes, Mex. ; 
Asociacion de Ingenieros y Arquetectos, Mexico, Mex. ; Ofi- 
ciaa Meteorologica Argentina, Dr. Don Estanif-lao S. Zeballos, 

O [Feb. 15, 

Buenos Aires, Argentine Republic; Observatorio do Rio Jan- 
eiro, Brazil; Agricultural Experiment Stations: Blacksburg, 
Va., Raleigh, N. C, Uniontown, Ala., Baton Rouge, La., 
Knoxville^ Tenn., Fayetteville, Ark,, Columbia, Mo., State 
College, Mich., Lafayette, Ind., Berkeley, Cal., St. Anthony 
Park, Minn., Las Cruces, N. Mex. 

A paper was read by Mr. Julius F. Sachse, on the " Horo- 
logium Achaz." 

Remarks were made by Dr. Horn and Dr. Brinton. 

A paper was read by Mr. Lorin Biodget on " The Scope and 
Importance of Electricity as a Motor." 

Pending nominations 1302 to 1305 were read. 
■ The Committee on Indexing was discharged. 

Dr. Frazer made a communication an the necessity of the 
unification of methods employed by experts for the purpose 
of detecting forgery, and ascertaining the character of hand- 

Dr. Frazer moved that a committee, composed of Dr. Fra- 
zer and Mr. S. P. Sharpies, be appointed to report on the gen- 
eral subject of methods useful in the investigation of docu- 
ments; and that said Committee have power to associate 
with their number, other specialists who are not members of 
the Society. 

And the Society was adjourned by the presiding member. 

Staled Meeting^ Fthruary 15, 1895. 

President, Mr. Fraley, in the Chair. 

Present, 31 members. 

Correspondence was submitted as follows : 

Letters of envoy were received from the Royal Statistical 
Society, London, England; Chief Engineer and Superintendent 
of Fairmount Park, Philadelphia; Smithsonian Institution, 
Washington, D. C. 

Letters of acknowledgment from the Comit^ Geologique, 
St. Petersburg, Russia (14-1, 1-15); K. D. Videnskabernes 



Selskab, Copenhagen, Denmark (144); Physikalische Gesell- 
schaft, Berlin, Prussia (144, 145); Marquis Antonio di Gre- 
gorio, Palermo, Italy (144) ; Bibliotheque Universitaire, Lyon, 
Prance (145). 

Accessions to the Library were reported from the Academic 
R. des Sciences, etc., de Denmark, Copenhagen; R. Statistika 
Central Byran, Stockholm, Sweden; Section fllr Naturkunde 
des O. T. C, Vienna, Austria; Naturforschende Gesellschaft, 
Zurich, Switzerland ; Societa Toscana di Scienze Natural!, Pisa ; 
Geological Society, R. Geographical Society, Editor of the Geo- 
logical Magazine^ Royal Statistical Society, London, England ; 
Amer. Institute of Electrical Engineers, Astor Library, New 
York, N. Y. ; Board of Public Charities and Committee on 
Lunacy, Historical Society of Pennsylvania, Pennsylvania 
Forestry Association, Mr. Samuel Wagner, Philadelphia ; Fish 
Commission, U. S. Bureau of Education, Smithsonian Institu- 
tion, Bureau of the Mint, Washington, D. C. 

The stated business of the meeting being the election of 
members, Secretaries Barker and Horn were appointed by the 
President as Tellers. 

The President announced that he had reappointed the Stand- 
ing Committees of 1894 to act in the current year. 

Mr. Price, from the Committee on the Henry M. Phillips 
Prize Essay Fund, reported that a circular had been sent out 
on May 1, 1893, setting forth the object of the foundation of 
the Prize, and requesting that the essays to be written be 
placed in the hands of the Society by January 1, 1895. That 
before that date eight essays had been received by the Society, 
all in conformity with the regulations adopted by the Com- 
mittee. The Committee presents the names of the following 
ten gentlemen as a "Committee of Judges," from whom five 
names shall be selected by the Society : 

James C. Carter, D. C. Langdell, 

Edward J. Phelps, Francis Wayland, 

J. Randolph Tucker, William A. Keever, 

Courtland Parker, Henry Billings Brown, 

C. Stuart Patterson, W. Pinckney Whyte. 



[Feb. 15, 

The matter having been considered by the Society, on 
motion, the following-named five gentlemen were unanimously 
selected as a " Committee of Judges," and the acting Secretary 
of the Prize Essay Committee was directed to inform them of 
their appointment by letter to be signed by Mr. Fraley, Presi- 
dent of the Society : 

James C. Carter, of New York, 
Edward J. Phelps, of Vermont, 
J. Randolph Tucker, of Virginia, 
Courtland Parker, of New Jersey, 
C. Stuart Patterson, of Pennsylvania. 

A recess was taken, in order to give members an opportu- 
nity to cast their ballots. 

After recess, the proposed amendments to the By-Laws were 
taken up. 

Dr. J. Chej-ton Morris raised the point of order that proper 
publication of the proposed consideration of the By-Laws had 
not been made. 

It having been shown that the Secretary acting at the time 
had officially reported such publication had been made, the 
point of order was overruled. 

Mr. Prime moved that the Society proceed to the considera- 
tion of the amendments to the By-Laws at this time. 

The motion was recorded, and a division having been 
called, it was lost, 

Mr. Prime then moved to indefinitely postpone the consid- 
eration of the amendments. Carried. 

Dr. Greene, inquired whether, by purchase or exciiange, he 
could obtain some odd numbers of the Quarterly Journal of 
the Chemical Society^ now in the library of the Society. 

On motion, the application was referred to the Committee 
on Library, with power to act. 

Dr. Minis Hays moved to reconsider the motion by which 
the Society had refused to consider, at this time, the proposed 
amendments to the By-Laws. Carried. 

Mr. Prime moved that the Committee on the proposed 

1S95.] 1 1 

amendments be discharged, and that the consideration of the 
amendments be indefinitely postponed. Seconded and car- 

The Tellers having announced that their report on the bal- 
loting for candidates was ready, the President instructed them 
to present it. The report declared the following persons duly 
elected members : 

2231. Prof. Alpheus Hyatt, Cambridge, Mass. 
2282. Prof. W. W. Goodwin, Cambridge, Mass. 
2233. R. F. Glaizebrook, F.R.S., Cambridge, England. 
223i. C. A. M. Fennell, Litt.D., Cambridge, England. 

2235. Prince Roland Bonaparte, Paris, France. 

2236. A. Wallis Budge, Litt.D., London, England. 

2237. Hon. James Bryce, M.P., London, England. 

2238. Sir George Grove, D.C.L., London, England. 

2239. William Huggins, D.C.L., London, England. 

2240. James Glaisher, F.R.S., Edinburgh, Scotland. 
224L Rev. James Legge, LL.D., Oxford, England. 

2242. Gabriel de Mortillet, St. Germain-en Laye, France. 

2243. Rev. Isaac Taylor, LL.D., York, England. 

2244. Prof. William Wundt, Leipzic, Germany. 

2245. Dr. Ernst Curtius, Berlin, Prussia. 

2246. Charles C. Harrison, Philadelphia. 

2247. Richard A. Cleemann, M.D., Philadelphia. 

2248. Richard Stockton Hunter, Philadelphia. 

2249. Charlemagne Tower, Philadelphia. 

2250. Joseph Wilcox, Philadelphia. 
225 L Henry C. Mercer, Do3'lestown, Pa. 

2252. Le Marquis Achille de Rochambeau, Rochambeau, 

Reading of the rough minutes was dispensed with, and the 
Society was adjourned by the President. 

Rosengarten.] -L^ [Jan. 4, 

Tke Paris Book Exidbition of IS94. 

By J. G. Rosengarten. 

{Read before the American Philosophical Society, January 4, 1S93.) 

The November-December number of the Paris Bulletin du Bibliophile 
contains exhaustive notices of the "Exposition du Livre," opened at the 
Palais de I'lndastrie, in Paris, during the summer of 1894. To those 
wlio had the good fortune to see this wealth of illustrations of the whole 
liistory of books in France, these notices are most useful, for there was 
no catalogue to guide the visitor through the vast space filled with the 
treasures of the collectors of Paris. To those who knew of the exhibition 
only from brief newspaper notices, ii may be of interest to learn some- 
thing of its extent and importance. 

It had special significance in its fine examples of typography, illustra- 
tion and bookbinding, but besides these, it had original drawings and 
engravings, and an almost endless variety of rarities — a whole history 
of the making of paper and its uses, a complete series of assignats, 
and great numbers of old specimens of mercantile paper, bills, drafts, 
shares of stock, stamped papers from the time of Louis XIV to our own, 
playing cards of every country — a whole series from China for instance 
— fans, invitations to dinners, fetes and other entertainments, public and 
private, notices of service in the National Guard, visiting cards, not the 
commonplace pasteboard of to-day, but rich in vignettes and other 
ornamental illustration. There was a wealth of theatrical and other 
posters, in which the French led the way for an artistic development 
that has since spread all around the world. Autograph letters and 
documents, dating back for the last tliree centuries, were displayed in 
great profusion, under the title of "graphology." A whole series of 
papers showing the papermakers' marks, for a long series of years, was 
quite an important contribution. 

The newspaper collection was very large, from tlie Gazette de France, 
founded in 1631, through the whole history of French periodicals. A 
number of T' Ami du Peuple, much discolored, is said to be the very 
copy in the hand of Marat, and stained with his blood when he was 
stabbed in his bath by Cliarlotle Corday. There were all the illustrated 
journals and newspapers so characteristic of French taste. 

There was a large collection of ornamental letters and other typogra- 
phical ornaments of the printers of the sixteenth and seventeenth centu- 
ries, their catalogues, the decrees of Parliament ordering the destruction 
of condemned books and the punishment of the book peddlers who 
offered them for sale. There were whole series of printed books and 
very striking examples of bookbinding, engraving, typography, from the 
very outset to our own day, the bad and indifferent as characteristic as 
the good and the best. There was a fragment of the Biblia Puuperum, 

1895.] J-O [Rosengarten. 

xylographic work preceding the discovery of movable types. There were 
beautiful incunabula, works printed before 1500, and fine examples of 
printing of the sixteenth century, when all the problems of typography 
were already solved, black, brilliant, unalterable ink, paper often uneven 
but strong enough to resist use and wear all these years, type perfectly 
clear and extremely beautiful, Illustrations of great artists, refined in 
execution, in exquisite taste ; wood engravings in harmony with the text, 
yet _all these were done with imperfect mechanical appliances, but much 
better done than the work of our own day with all the help of machinery 
carried to the highest perfection. 

Then came the Elzevirs with their attractive books, and a whole series 
of printers of irreproachable correctness, charming simplicity and a 
noble air worthy of the bo )ks they issued from their presses. Publishers 
and printers alike were then men of knowledge, masters of the classical 
languages, writing Latin and reading Greek. Later on, as books 
increased in numbers, they lost in their typographical value ; a few 
printers fought for the old standards of excellence, but they were driven 
from the field, and even when the art of illustration was at its best, the 
printing and paper were at their worst. 

The nineteenth century has seen a still greater divorce between the 
good and the bad. Many books well printed and illustrated are made of 
wretched paper. That used in the incunabula has stood four centuries of 
hard usage without harm. That used in some of the books printed in 
this century of ours has not lasted for forty years. Typography was an 
art in tiie (ifleeuth and sixteenth centuries ; to-day it is an art with and 
for tlie few, an industry with and for the many. It is carried on in vast 
establishments that have little in common with the old printing office, so 
admirably preserved in the Plantin Museum of Antwerp, and so well 
reproduced in Flameng's picture of Grolier's visit to the Aldine printing 
office in Venice, some cases full of type, some forms ready, a press on 
the model of the old wine presses, from which the name was derived. 
Nowadays there would be a great manufacturing establishment with 
machinery driven by steam or electricity, where printing is done with the 
best mechanical appliances. 

At the Exposition there was a whole series of such machinery in use 
to-day. It is only to be regretted that tliere was not a retrospective exlii- 
bition, from the old hand press, the first steam press, that of the Times 
of 1814, when the announcement was proudly made that that paper was 
printed by steam — very primitive it was, too — printed on one side at a 
time. By 1834 there were 160 steam presses in use in France. By 1817 
there was in use in Paris a steam press with four cylinders printing both 
sides at once, for the first time. In 186S, rotary presses were introduced, 
and in 1873 an endless printing press was first used in Paris. In 1878, 
there was exhibited a press printing 40,000 copies an hour, and cutting, 
counting, folding, all done by machinery. Since then printing in colors, 
photogravure, photolithography, and many other applications of the 

RoBengarten.] •*-^ [Jan. 4, 

sister arts have been added to the daily use of the printing office, and 
every day sees the announcement of some new handmaid to the old art 
preservative of all arts. 

The cheapening of books has gone hand in hand with the improvements 
in typography and its allied ai'ts, but at the same time books dear to the 
bibliophile are still being produced, and the last decade of the century, 
now fast drawing to its end, will leave to posterity a rich heritage of 
works representing splendidly all the forms of expression of art in books. 
The renaissance of making fine books is comparatively modern ; at one 
time it was limited to mere reproduction, but now it is marked by pro- 
gressive originality, sometimes like the impressionists in painting start- 
ling by their struggles for novelty, but often charming by the good use 
made of the latest mechanical inventions. The French publishers have 
succeeded in making each a specialty, and the great books on architec- 
ture and decoration, the Bibles, the classic French authors, on art and 
on bibliography, will perpetuate their names among the world's master 

The Exposition du Livre was rich in typography, but it was also rich 
in illustrations of every epoch and every kind. The oldest illustrators 
were the miniaturists and illuminators of the Middle Ages. It is in the 
manuscripts anterior to the discovery of Guttenburg that their art can be 
best appreciated. One of the rooms on the lower floor of the Palais de 
rindustrie was devoted to manuscripts, and many of them were rare 
marvels of beauty, all of real interest. Printing by the end of the fif- 
teenth century supplanted m inuscripts and illumination, an art that has 
only been revived in our own day. The learned chief of the famous 
Museum of the Louvre has told the sad story of a miniature painter for 
manuscripts, who after holding rank at the head of the Guild, saw his 
talent made useless in competition with the first printers, and he soon lost 
his occupation and the means of his livelihood. The old art was killed, 
but it had the honor of compelling its new rivals to imitate the work of 
their predecessors. In the best incunabula there is a constant effort to 
make the printed page look like manuscript. The decoration of the printed 
Litres d'Heures strove to imitate the models which scribes had carried to 
a rare degree of perfection. They were works of art and luxury, and do 
honor to the names of Verard and Pigouchet, Kerver and Simon Vostre. 
Under the influence of Italian renaissance they worked a great change, 
visible in the books of the sixteenth century, with their large plates illus- 
trating the text, the borders surrounding, the figures inserted in the pages, 
Tiie designers and the engravers were artists of the first excellence. 

The next age, that of the great masters of French literature, was too 
busy with the text to care for illustration, beyond an allegorical frontis- 
piece or portraits, such as that of Malherbe in the edition of 1630, or of 
Corneille in that of 1644, excellent examples of engraving and valuable 
historically. In religious books and in funeral orations there were still 
illustrations. The funeral sermons of the seventeenth century were not 


1895.] -*•" [Rosengarten. 

only great masterpieces of pulpit eloquence, sucli as Bossuet's immortal 
sermons, but they were printed with noble and serious splendor. The 
great period of illustrated books was that of the eighteenth century, audit 
was at its best from 1750 to 1780. The poorest volumes had exquisite 
vignettes, and worthless verse or prose was made attractive by the capital 
illustrations, and a wit of the time said that the beaux esprits were like 
shipwrecked mariners, "ils se sont sauves paries planches." The school 
of French illustrators of that time, with its traditions, its discipline, its 
great artists, each with his own style, yet all full of unity in their collec- 
tive work, really illustrative of the text, was admirably exhibited. With 
the troubled times of the French Revolution, art too declined, but it 
revived with the romanticism of our own century, and showed thoroughly 
French liveliness. Then, after Meissonier and other really great masters, 
came a new eclipse, from 1850 to 1870, when Gustave Dore was the only 
famous name, his powerful inventive genius and his extreme abundance 
of work marred by careless execution. With 1870 began a new period of 
works of art and luxury. Many of them have already passed into oblivion 
or that abyss of second-hand stalls and low prices that properly mark 
their real value or valuelessness, but there remains a wealth of really good 
work. Many of the original drawings by the best artists were in the ex- 
hibition, and not only their designs for books, but for fans, posters and 
advertisements. The engravers on wood, too, were there, and the 
original designs from many famous hands were placed alongside the 
reproductions, to show how much credit belongs to the engraver, and the 
perfection of the typographic and other processes, both in black and white 
and in colors. Even in photographic illustrations there was evidence of 
art in the choice of subjects, in the grouping and composition. A very 
competent critic, M. Leon Gruel, himself one of the great Paris book- 
binders, and the owner of a remarkable collection of bindings and of 
everything that illustrates this fine art, has given a capital account of the 
value and importance of the retrospective exhibition of bookbinding, to 
which he was one of the largest contributors. He loaned a copy of an 
unknown edition of a grand folio "Speculum morale," without date or 
name of printer, but certainly not later than 1477, for the binding is dated 
1478. Gruel describes the binding with all the love of a collector and the 
critical acumen of a bookbinder. The book was bound by one of his great 
predecessors as a gift of the Emperor Maximilian, and it is both out- 
wardly and inwardlya fine example of the artistic in printing, illuminating 
and binding. The next of M. Gruel's exhibits has in golhic characters 
the name of the binder, for in the fifteenth century and in the beginning 
of the sixteenth century, the bookbinders took an honest pride in their 
work, and perpetuated their names on it, often by religious texts in which 
they commended themselves to the protection of their patron saints. 
Each bookbinder had liis own particular saint, and St. Sebastian, St. 
Maurice, St. Barbe, St. Nicholas, are thus stamped on the bindings, often 
with an humble petition for protection, signed by the bookbinder, and 

Rosengarten.] •'•V * [Jan. 4, 

there were books of 1513 and 1526 and 1529 and 1540 so bound and 
marked, the hxst a Martial bound for Charles V, by a bookbinder of 
Amsterdam, with the arms of that city and his own name in full, as well 
as the arms and motto of the great Emperor. In the good old times every 
publisher was his own printer and bookbinder, for in the fifteenth and 
sixteenth centuries no books were sold unbound. The bookbinders went 
from city to city in search of employment from the printers and pub- 
lishers, and only in the monasteries were there monks who were em- 
ployed as authors, illuminators and binders. Every printer and publisher 
had his own device and legend, which was reproduced on the binding as 
well as on the title-page. The Elzevirs, the Plantins, the great printers 
of Amsterdam and Antwerp and Lyons, as well as those of Paris, thus 
made the binding an integral and important part of their books, and the 
books with the cypher of Francis I, and the arms of Paul V, the Gruliers 
and the Miiiolis, all reveal the owner and the binder. 

There was a fine folio Erasmus, printed in Venice in 1508, annotated 
throughout by Grolier in his own handwriting, with a drawing by him of 
a medal referred to in the text, and with his familiar legend, "Jo. Grolieriz 
Lugdunen et amicorum," written on the last page by the owner. There 
was a Venice Homer of 1539 bearing the name of an amateur binder of 
great merit, but hitherto unknown. There were bindings for Christian 
VII of Denmark, and for Louis XIII, as well as those for famous col- 
lectors of less rank, bearing the names of the binders, and M. Gruel ex- 
hibited a bound copy of the rules of the bookbinders of Paris, 1750, with the 
name of the binder, the date of his birth, of his marriage, of his apprentice- 
ship and of his becoming a master workman, while the great Padeloup con- 
tented himself with putting his name modestly under the title. Among the 
curious bindings were those of pretended bixjks, really vessels for liquor. 
On one Franklin's portrait is preserved in a medallion, another has 
the title "L'Esprit de Rousseau," and as such false books were said 
to be for the use of country clergymen, there was a special joke in making 
Franklin and Rousseau, the enemies of the church, contribute to the com- 
fort of its servants. Daring the French Revolution the nobles bad their 
books bound with republican devices concealing their arms. The Restora- 
tion had a wealth of great bookbinders, and their successors of our own 
day, no matter how strong their rivalry, were close neighbors in the cases 
in which some of their finest examples were gathered at this Exposition du 
Livre. There was a wealth of curious historical material, the charters of 
the bookbinders' associations or guilds of the fourteenth, fifteenth and six- 
teenth centuries, their accounts, inventories, tools, etc., and a complete 
library of books on bookbinding, now quite a collection in numbers. 

The Exposition du Livre had its historical side. Great rooms were full of 
material of the most precious kind ; the whole story of French caricatures 
was told on its walls ; French art in every form of application to books 
and printing of every kind vvas splendidly exhibited, and besides there 
was a capital exhibition of every industry related to printing — inks, paper, 


1895.] -^ ♦ [Rosengarten. 

types, lithographic and photographic and other processes, with the books 
and illustrations showing their practical uses and application. It was 
such a collection as only the enthusiasm of Frenchmen could bring 
together, and yet it lost much of its value and interest for want of a cata- 
logue, for the Exposition must end, the wonderful collections be returned 
to their owners, and the opportunity of studying the history of printing 
and book-making in its best sense will be lost. It is almost impossible to 
hope that such an exhibition can soon, if ever, be organized here. The 
French have a wonderful talent for organization, and the great collectors 
seem to have united in this Exposition, giving the loan of their treasures 
for a long period, arranging them with admirable skill, and sharpening 
the zeal and enthusiasm for collecting which is useful only when it serves 
to make the world wiser, by enabling it to take stock of the work of past 
years, to trace the rise and growth and changes of an art, and none better 
deserves such painstaking study and research than printing with its kindred 
and allied industries, and the Paris Exposition du Livre was certainly 
honorable to French collectors, to printers and binders and artists, all 
joining to show how much the world owes to France for the past and for 
the present of the art of printing, revealed in this exhibition. 

There was a letter in the Nation of September 20 last, describing 
the Paris "Exposition du Livre," critical and in the main uncomplimen- 
tary. In looking back on my own visit to the Exposition, I recall the 
very instructive and interesting things I saw there, and those of little 
value have been forgotten. Still I owe to the Nation the information that 
Paris has its " Ecole du Livre " — what it is or where it is the writer does 
not mention, nor where we can find anything about it. The Nation does 
speak in praise of the foreign exhibits, the publications of the University 
Press of Cambridge, and says that a handful of illustrated papers and 
magazines, represented the books of Great Britain, and a great array 
of names of illustrators, booksellers, journalists and diplomats, headed 
by the ambassador of the United States in Paris, the members of the 
American section, but there was nothing from this country or from Italy, 
Spain or Germanj\ There was a small but comprehensive exhibit from 
Denmark, showing to advantage the great Scandinavian illustrators, 
whose names are too seldom heard out of their own country, intelligent 
interpreters in good wood engraving, and their work published in vol- 
umes, to whose excellence printer, binder and papermaker have all con- 
tributed. In Copenhagen, too, there is a "School of the Book," appa- 
rently on much the same lines as the institution of that name in Paris. 
The Nation praises, in a half-patronizing way, the retrospective and 
documentary part of the Exposition, the wealth of the private collections, 
especially of bookbindings, but in the main condemns the exhibition as 
a whole. That it deserves more than this is, I think, clear from the ab- 
stract you have heard of the articles describing it in the Bulletin du 
Bibliophile, the venerable organ of French book lovers, for it was founded 
in 1834. 



Rosengarten.] -"-^ [Jan. 4, 

M. Gruel poiats, with pride, to the worlv of early bookbinders, who, 
like himself, have also been bibliographers in the best sense of the word. 
He calls attention to the handiwork of the Planlins, who, like their con- 
temporaries, signed their bindings with the same bookmark that desig- 
nated their printing. Among these were Pliilippe Pigouchet, Denis Roce, 
Robert Mace, the Gryphes of Lyons, the brothers Augelius, Jean Bogard, 
Madeleine Bourselle, widow of Frangois Regnault ; Jacques Dupuis, and 
the Elzevirs. Christopher Plantin was born near Tours in 1514. His first 
occupation was that of a bookbinder, which he learned in the workshop 
of Robert or Robinet Mace, at Caen, who was both printer and book- 
binder. Plantin went to Antwerp, where he became famous as founder 
of the printing and publishing house that existed in his family from 1549 
until 1876, when it was made a public museum, one of the most interest- 
ing, indeed the only one of its kind in Europe, and well worth a visit. M. 
Gruel shows that in 1522, Plantin bound the account books of the city of 
Antwerp ; that he added to his other pursuits that of fine work in leather, 
boxes, coyers, coffers, richly decorated — an artistic handiwork that Gruel, 
too, has made part of his own trade. 

In the Plantin Museum at Antwerp, there is a single example of Plan- 
tin's binding with his mark, and the metal stamp is preserved along with 
the type and the woodcuts used in the volume. M. Gruel reproduces from 
Plantin's account books the items that show his industry as a bookbinder, 
giving the prices of the material he used, the mark, a compass with the 
motto, "Lahore et Constantia," the press, the wages paid his journey- 
men and the bills rendered to his employers, thus bringing us back to the 
time when bookbinding was an art in the hands of artisans who made it 
part of their business of printing and illustrating books. 

The catalogue of the Museum Plantin 3Ioretus, by M. 3Iax Rooses, the 
keeper, is interesting even to those who have not enjoyed a visit to this 
curious relic of tlie faithful pursuit of one business by the same family 
for over three hundred years. In 1549 when Plantin established himself 
at Antwerp, that city was next to Paris in importance. He soon gained 
reputation for his bindings and his other work in leather. He became a 
citizen in 1550, and that year a member of the Guild of St. Luke as a 
printer. In 1555, he printed his first book ; but his work was interrupted 
on a charge of heresy, and he took refuge for a year in Paris, returning to 
Antwerp, where he was protected and employed 1)y Philip the II, 
Cardinal Granvelle, and other notable persons. He printed, under their 
auspices, a Bible in five languages ; Breviaries and 3Iissals and Liturgies 
for Spain, for a privilege from Rome for Spain and its colonies was the 
foundation of his fortune. In 1576, he moved into the building which 
to-day is the Museum perpetuating his name and work. His son-in-law, 
Moretus, succeeded in 1589, on his father-in-law's death, to the business, 
and transmitted it with its traditions on his death, in 1610, to his two sons. 
One died in 1618, the other in 1641, and was succeeded by his son, who 
died in 1674. The business passed then to liis son, who died in 1692, 

1895.] -'•^ [Rosengarten. 

and then to his son who died in 1730, and was succeeded by a brother, 
who died in 1757 ; his sou continued it until 1768 ; his widow until 1797 ; 
their four sons successively until 1830, and they in turn were followed by 
one of the next generation down to 1865, and he, by a younger brother, 
wno died in 1830, having sold the printing office with all its contents to 
the city of Antwerp in 1876. The last book bearing the Plantin imprint is 
dated 1866, but work was continued until 1867, and the last tax paid as 
printers was in 1871. 

The Museum is rich in works of art, principally portraits of different 
members of the family and the authors and artists employed by them. 
Rubens and his pupils and contemporaries and successors are well repre- 
sented. The books of account show exactly what was paid to them for 
these pictures and for the drawings for the illustration of the books 
printed by the Planting. The library is rich in illuminated and other rare 
and precious manuscripts ; in editions of tlie Plantin publications from 
1555 down to the last issue from their press in 1886 ; in autograph letters 
and papers relating to their business during all these years ; in copies of 
the Antwerp Gazette, from 1620, the oldest newspaper in Europe. The 
shop still contains on its shelves the books that used to be on sale, with 
price currents of books of 1593, 1628, 1642, and the Index expurgatorius of 
1569 and 1571, to guard against offering books prohibited by Rome or 
Spain. The printing office, with its antique appliances, and the memo- 
rials of the most famous readers and correctors of the press, many of 
them men of great learning, are piously preserved. The font of type 
used in all these years is well preserved, and so are the old presses. The 
library is rich in incunabula and rare printed books from Guttenberg 
down, and by way of contrast a complete set of the Journal des D('bats 
from 1800 to 1871. Autograph letters, fine wood and steel engravings, 
maps, plans, portraits, vignettes, engraved arms, book plates, busts, 
statues, are displayed in great profusion. The dwelling rooms are pre- 
served in their ancient order, and show just how well-to-do people 
lived in the sixteenth century. There are over fourteen thousand vol- 
umes in the Plantin Moretus Library. The main library was built in 
1640, and is still as it was then. The archives of the printing house cover 
all its business from 1555 to 1864, and the foundry where the type were 
cast still retains its antiquated appliances. There is no counterpart of the 
old printing office thus piously preserved down to our own day. 

The question naturally suggests itself, if the first printers imitated 
manuscript, how did Latin type come into use. The earliest books were 
printed with types resembling the styles for book writing then popular in 
the middle of the fifteenth century. Pointed Black Letter was preferred 
for church service books, but for books for the laity a simpler form of 
black letter was preferred, semi or pointed Gothic. In 1486, the German 
character was first used in Germany. The first printers of Italy, them- 
selves Germans, Sweinheym and Pannartz (1465-73), began work with 
new types of the Roman form, but with many features of the black 

Eosecgarten.] ■"'-' [Ian. 4, 

letter. la 1487, Halin, a rival German printer, began printing in another 
Roman letter, which also showed a preference for the Gothic form. The 
first really good form of Roman, adopted everywhere to the suppression 
of all others, was made by Jenson of Venice, and shown in his EuseUus 
of 1470. Accepted by the educated, it was, however, rejected by the 
common people, who were just beginning to buy books, and Jenson had 
to print popular books in Gothic characters, and the most beautiful con- 
temporary books of Paris, the Netherlands and England were in pointed 
type. The first book printed in England iu Roman type was Henry YIII's 
treatise, which secured for him the title of Defender of the Faith, so 
printed by Pynson possibly in deference to Italian taste and in compli- 
ment to the Pope. Aldus Manutius added a new style, the Italic, based 
on a written style then popular with copyists. The Italic, first shown in 
the 1501 Virgil, differed from modern Italic in several respects, notably in 
the fact that the capitals are upright and stand apart from the text. 
The Lyons founders, moved by the popularity of Italic, soon after pro- 
duced the Cursiv Franq^ois or Cimlite, an unreadable letter. The disuse 
of black letter iu France was largely due to Tory of Paris, and his 
Champ Meuri of 1536. Caxton's type was distinctly Flemish, that 
of his successors resembled the black letters of the printers of the day 
of Paris and Rouen. Black letter maintained its popularity in Eng- 
land and the Netherlands, after it had fallen into disuse in France. Eng- 
lish printers had no type foundry until John Day established his, 1546-84, 
and had to accept Dutch type with their mannerisms. English readers 
showed a marked preference for black letter, and it was used in some of 
the most popular books, such as the first edition (1525) of Tyndall's Neio 
Testament, Coverdale's Bible (1535), Cranmer's Great Bible (1540), and 
the authorized Prayer Books. In the reign of Roman Catholic Mary, 
Roman was the proper text for books of devotion, but under Protestant 
Elizabeth, Prayer Books in black letter had the preference. Fox's Acts 
and Monuments (1560) was in black letter. Soon after the printers 
evinced a partiality for Roman for English classics. The writings of 
Shakespeare and Bacon appeared in Roman. Black letter was out ot 
fiishion at the close of the sixteenth century." — Chambers' Encyc, s. v. 

"The earliest known representation of a printing press is dated 1507, 
and it pictures an apparatus which is little more than a modification of 
the ancient wine press — hence the name." — do., s. v. "Printing," p. 410. 

Under the head of " Black Letter," Chambers' Encyc. says : " The first 
types were copies of the letters in use in the middle of the fifteenth cen- 
tury. Two sorts of letters were in use — Roman from the fifth to the close 
of the twelfth century, when they gradually began to pass into what has 
been called Gothic, which continued till the sixteenth century, when, in 
most European countries, they were superseded by Roman letters. The 
classic taste of Italy could not long tolerate Gothic, and it was modified 
until it assumed the shape to which the name of Roman has since been 

1895.] ■^ ^ [Sachse. 

given. The first works printed with these new types were the two beau- 
tiful editions of Pliny's Natural History, one by John of Spires at 
Venice in 1469, the other by Nicholas Jenson, also at Venice, in 1473. 
Aldus Manutius attempted in 1501 to introduce the Aldine or Venetian 
Italic, but the Roman soon spread from Venice all over the west of 
Europe. Although the Germans still continue the use of a form of black 
letter, about one-half their books are in Roman." 

Horologiiim Achaz {Chrisfoplwrus Schissler, Artifex), 
By Julius F. Sachse. 

{Read before the American Philosophical Society, February 1, 1SD5.) 

Among the scientific apparatus, models and philosophical instru- 
ments preserved in the cabinets of this Society, there have been 
conspicuously displayed two brass plates, finely wrought, engraved, 
chased and gilded, without, however, bearing any label explanatory 
of their former use or import. 

As a matter of fact they are parts of a unique instrument, the 
equal of which is not to be found in any museum or scientific col- 
lection in the world. 

Unfortunately, several parts of this instrument are missing, and 
among them the mythological figure which once stood upon the base, 
and elevated or held up the larger plate or basin. The gnomon or 
rod used to cast a shadow, as well as the apparatus held aloft by the 
figure upon the rim, whereby a fine pencil of light was thrown upon 
the dial in place of a shadow (Photo-Sciaterica), are also wanting; 
the magnetic needle in the small compass in the base has also long 
since disappeared. 

I have endeavored to restore this instrument as well as I could, 
in the absence of any definite account of how it was in its original 
state ; for no published description was allowed by the censorship 
of the press, for reasons which I will explain in the course of this 

It will be noticed that I have substituted a tripod between base 
and dial, in place of the lost figure. The instrument was known 
by the mystics and philosophers of old as an " Horologium 
Achaz," or Dial of Achaz. 

Saclise.] 22 [Feb. 1, 

The smaller of the two pieces measures five and three-quarter 
inches in diameter, and it formed the base of the instrument. It is 
made of an alloy, of which silver and copper form the chief ingre- 
dients. In a raised centre it contains a compass, one inch in 
diameter. The intervening space is arranged in two circles, filled 
with mythological deities and mythical marine monsters, all finely 
wrought and chased {ciselirf). 

If we reverse this base, we find beneath it a finely engraved plate 
heavily gilded with an amalgam of fine gold. It is slightly con- 
cave. This plate is divided into five panels ; two of these divisions 
are graduated for different elevations and bear the following inscrip- 
tion, viz.: " Horologii Achaz hydrographica declinatio ad elevat : 
Poli 44-45-46, Gradv:" and "47-48-49," respectively. Two 
others contain pictorial scenes which will be described later on. 
The helix in the centre, which forms the fifth division, contains 
the following description, viz.: " Notat concha isthac hemiciclea 
capitis j8 Esaia tniracvlvm : nam hanc si aqva labrvm vsque impleveris 
vmbra salts 10 i/no : zo. gradibvs retrorsvin fertvr signvm ac gradv m 
solis : quin etiam horam dieivvlgarem qvamcvnque vna cvmplanetarimi 
qvas vacant horls denuncians.^' ( Translation : " This semicircular 
shell explains the miracle of the 38th chapter of Isaiah. For if 
you fill a basin altogether with water, the shadow of the sun is 
borne backward by ten degrees. Moreover, it indicates any com- 
mon hour of the day whatever, together with that of the planets 
which they call hours.") 

The larger piece is a basin-shaped plate, made of common brass 
or gun metal, with a flat, moveable rim one inch wide. Upon this 
are engraved the signs of the zodiac. On the reverse of this rim, 
which surrounds the large basin, is engraved the following inscrip- 
tion : " Christophorvs Schissler, Geometricvs ac Astronomicvs 


The centre or concave part of this plate is ten inches in diameter, 
and is geometrically divided into the different planetary houses. 
The depth of the basin is one and three-quarter inches, and the 
whole once formed the dial of the instrument. 

The rim is surmounted by a brass figure, three and three-quarter 
inches in height, representing an ancient prophet or astrologer, with 
the left hand extended so as to hold the " gnomen " used to cast 
the shadow or to throw the requisite pencil of light. 

This instrument was formerly used, nominally, for calculating 

1895.] ^"^ [Sachse. 

nativities, and in the various occult studies wherein the hour of the 
day or night, and the position of the planetary system of the heav- 
ens took a prominent part, as by its aid it was possible to see, not 
only the true time of day by sunlight, and at night by moonlight, 
but other solar phenomena, such as the true time of sunrise and 
sunset ; the orb's place in the twelve houses of the zodiac ; its perigee 
an'd apogee ; its height above the horizon ; the relative length of 
the day and night, as well as many other astrological data. 

There is, however, another peculiarity about this instrument. 
In the hands of the Astrologus or Magus of the sixteenth century, 
it was capable, at the will of the operator, of apparently reversing 
the laws of nature. Thus, if the basin was filled with water or any 
other translucent liquid, the time marked was advanced or retarded 
as many degrees as equal the angle of refraction ; thereby repeating 
the miracle of Isaiah. 

To thoroughly illustrate this latter fact, as well as the somewhat 
obscure inscription within the helix upon the plate beneath the 
base, and on the two engraved panels, it will be necessary for us to 
make a practical test of the apparatus and to take up the references 
to the instrument as given in Holy Writ, even though it may reflect 
somewhat upon the integrity of the prophet of old, who evidently 
had some practical inkling of the then unknown laws of refraction. 

By referring to the thirty-eighth chapter of the Book of Isaiah, 
in the eighth verse we read : 

" Behold, I will bring again the shadow of the degrees, which is 
gone down in the sun-dial of Ahaz ten degrees backward. So the 
sun returned ten degrees, by which degrees it was gone down." 

This is what is known as the great miracle of Isaiah, and is por- 
trayed in one of the engraved panels upon the base plate of the 
instrument. It will be noticed that the invalid sovereign is in his 
bed, while the prophet is pointing to a sun-dial, which, however, 
in the representation, is a vertical one — a precaution that was 
resorted to for obvious reasons by the Augsburg artificer, to distract 
attention from the true character of this instrument, in case it 
should ever fall into the possession of the profane. 

The other engraved panel on the base plate illustrates the twenty- 
first verse of the same chapter of the Book of Isaiah, viz.: " For 
Isaiah had said, Let them take a lump of figs, and lay it for a plas- 
ter upon the boil, and he shall recover." 

We have here portrayed the consummation of the miracle. The 

Sachse.] -^^ [Feb. 1, 

king is seen seated upon a throne, with his right leg extended, 
while the prophet is applying a poultice of figs to the wicked car- 
buncle. An attendant, in the rear, it will be noticed, holds a bas- 
ketful of the same remedy in reserve. 

The above mention of the " Dial of Achaz " which had the prop- 
erty of going backwards ten degrees at the command of the old 
prophet, is the earliest reference to any instrument for the purpose 
of marking the true time of day of which mention is made in the 
world's history. 

Achaz, who was the son of Jotham and the eleventh king of 
Judah, about the year 771 B.C. went to Damascus to greet his 
benefactor, Tiglath Pileser. He saw there a beautiful altar, and 
sent working drawings of it to Uriah, the priest in Jerusalem. An 
altar was completed against his return. He likewise set up the dial 
which is mentioned in the miraculous cure of his son Hezekiah, 
thirteen years after the death of Achaz. This is the first dial upon 
record, and is 140 years before Thales, and nearly 400 years before 
Aristotle and Plato, and just a little previous to the lunar eclipses 
observed at Babylon as recorded by Ptolemy. 

That this instrument and its peculiar properties were not unknown 
to the scientific faculty of the Helmstadt University, is shown by 
the Memoirs of Uffenbach, that were published at Ulm, in the early 
part of the last century. The University at that time was presided 
over by Dr. Johann Fabricius (Altdorfinus), who was the former 
tutor at Altdorf of Johannes Kelpius, Magister of the Rosicruclan 
Community, on the Wissahickon, in Pennsylvania (i 694-1 708). 

Zacharias von Uffenbach, the celebrated scientist and traveler, 
and former classmate of the younger Falkner at Halle, notes in the 
Index to his Memoirs, Sun-dial, — Hiskia, Where the Shadow Turns 
Back, Curieux, ii, 542. But on referring to the place indicated, no 
reference whatever to the subject is to be found. The inference is 
that the whole matter was, at that time, suppressed by the Censor. 
There is, however, a reference to the instrument by the same writer 
in another volume of his Memoirs (Vol. i, 252) of which no mention 
is to be found in the Index. 

Uffenbach, who was always careful to note down the most minute 
particulars of any special scientific matters brought to his notice, 
states that, while on a visit to the University Library, Abt Schmid 
called his attention to a description of this peculiar instrument, and 
then continues that " he would attribute the especial discovery of 

1895.] ■^^ [Sachse. 

this peculiar sun-dial to an atheist, and that it would be apt to give 
such as had no faith in miracles the idea that this was the sun-dial 
which, by the retrogression of its shadow, furnished the sign for King 
Hezekiah ; or that it was a similarly constructed instrument having 
the same property, and which being known to the prophet, he, on 
that account, proposed that particular test to the King." 

During a late visit to Europe, a careful search was instituted in 
the various museums for a duplicate of this Horologium, but with- 
out result. So scarce and sought-after are the specimens of Schiss- 
ler's ingenuity, that the great Germanic National Museum at 
Nuremberg contains, I think, merely a small pair of dividers from 
this great artificer. The museum of his native city, Augsburg, con- 
tains nothing whatever of his handiwork. 

Failing in my efforts to find a duplicate or a similar instrument in 
either Germany or France, by the aid of which our own specimen 
might be restored to its original condition, as a matter of interest, 
I next endeavored to obtain whatever information was to be had 
relative to the ingenious mechanic whose name adorns the rim of our 
specimen. Here I was more successful, thanks to the courtesy of 
Herr Hans Boesch, Director- in-Chief of the Germanic National 
Museum. The following references to the artificer were found in the 
Archives of the Museum, viz. : 

In Paul von Steffen's account of the " Kunst-, Gewerbt-, u. 
Handwerks-Geschichte der Reichsstadt Augsburg," it is recorded, 
that more noteworthy than any one is Christophorus Schissler. This 
man, according to his apprenticed trade, was a brassworker in a small 
way, or brazier. His talents, however, led him into geometry, 
mechanics and astronomy. Therefore, he subsequently called 
himself a geometric and astronomical master mechanic ( Werk- 

From this artist, continues the old chronicler, there stands in the 
Bodleian Library at Oxford, England, a solid gold quadrant, which 
measures more than a Rhenish foot square, and has a weight of six 
to eight pounds. Upon this instrument is engraved in large letters, 
** Christophorvs Schissler, Geometricvs ac Astronomicvs Arti- 


I will here state that this quadrant was also known and described 
by Zacharias von Uffenbach, who states (Vol. iii, loi, 102) that 
it was of pure gold, and was covered with scales, divisions 
and calculations, which he thought were poorly executed. The 


Sachse.] '-'^ [Feb. 1, 

Librarian of the University at Oxford, however, differed with him, 
and gave the opinion that the calculations were of even greater 
value than the precious metal of which the instrument was con- 

Uffenbach concludes by stating that he would rather have a 
quadrant with more modern calculations and divisions, and made 
of gilded brass, as then he would not be afraid to put it to a practi- 
cal use. He also verifies the dimensions, weight and inscription as 
above noted. 

Speaking of the inscription, the question was raised here some 
time ago as to the meaning of the word " Vindelicorvm " as 
applied to this instrument. I will state that the term denotes that 
the artificer was descended from the ancient German race of the 
Vindelici, whose chief city, in former times, was "Augusta," 
therefore "Avgvstae Vindelicorvm " — the modern Augsburg. 

Again referring to the old records in the Germanic National 
Museum, it is there stated that Schissler constructed numerous 
ingenious scientific apparatus and automata for the Emperor 
Rudolph II. of the Holy Roman Empire. This fact alone, con- 
tinues the old chronicler, furnishes ample proof of the repute that 
the artificer had gained by his proficiency in the mechanical arts. 

In the year 1600, Schissler was commissioned by the authorities to 
survey and plot his native city and the suburbs as well as the Imperial 
Bailiwick (Reichs-Landvogtey). The plan of the city was engraved 
on copper by Alexander Mair, a noted artist of that day. The 
other plans were stored at the Land Office. (During my search at 
Augsburg, none were to be found.) 

In the year 1606, Schissler constructed a large Sphcera Annu- 
laris, which he presented to the magistrates of his native town, 
and which was there exhibited for many years in the "Stadt- 
Bibliothek," but is now missing. 

In conclusion, the chronicler states, " in these days (early in the 
seventeenth century) many of our learned scientists became profi- 
cient in Geometry (^Messkunst) but chiefly in Astronomy." 

An equally interesting reference was found in the old " Memorial 
Buch," wherein one Hector Maire mentions that, in the year 1561, 
Christophorus Schissler constructed the four large sun-dials upon 
the " Perlachthurm," at Augsburg, where they still, after a lapse of 
three centuries, mark the time of day. 

The Perlachthurm is one of the peculiar landmarks of the ancient 

1895.] ^ i [Sachse. 

city, at the confluence of the Wertach and the Lech, and com- 
mands a view of the surrounding country. This solitary tower, of 
wliich I have here a contemporaneous engraving by Hess, dates 
back to the tentli century, but lias been altered and restored upon 
several occasions, notably towards the close of the sixteenth 
century, when it was raised by the celebrated architect, E. Holl, to 
its-present height of 326 feet. It was on this occasion that Schiss- 
ler was commissioned to construct the four sun-dials, two of which 
are seen in the engraving. This tower was built as a watch-tower, 
to discover the approach of the enemy. At the present time it does 
duty as a look-out for the fire patrol. 

The old chronicler goes on to state that Schissler received the 
sum of 400 florins for his labor on the four dials, while his wife was 
given 6 florins for assisting her husband. 

The account also says tliat the survey of the city was commenced 
in 1598. Schissler also surveyed, with the aid of his son, the 
Lechstrom, completing the work in 1603. From official records it 
appears that for five years' labor he received the sum of 500 florins, 
in addition to his expenses. 

The Memorial Buch further states that his MeisterstUck or c/ief- 
(i'ceuvre was placed in the Mathematical Hall of the Zwinger, or 
Royal Museum at Dresden. It was a qicadratum geomctricum, and 
bears, beside his usual inscription, the date 1569. This apparatus 
was for the purpose of measuring both elevation and distance, in 
which the divisions were given by transverse lines. 

He also constructed an ingenious odometer or measuring wheel 
(Wegmesscr) which is described by Kirchner, p. 221, Ed. Colon., 

From the above enumerations of Schissler's handicraft, we are safe 
in assuming that the Augsburg artificer was one of the most ingeni- 
ous mechanics of his time. 

In searching for other scientific authorities who were acquainted 
with instruments having a similar property, and had left a record of 
the fact, it is found that Varenius, in his Geographica Genera/is, 
makes some general mention of what may be called a refracting 

Leybourne, in his work on Gnomonicks (London, 1682), notes 
that such dials were to be made in two ways, one where the gnomon 
was hidden all under the water ; the other, where the point was above 
the water. Our own specimen was evidently one that combined the 

Sachse.] ^^ [Feb. 1, 

two principles; a conclusion arrived at by the space for the stylus 
on the meridial line, which has been replaced, and the figure upon 
the rim, which evidently supported the elevated gnomon upon the 
same line. 

Ozanan, in his J? ecrea/ions (London, 1708), also gives a problem 
" to describe a dial by refraction." 

The first public mention of, or reference to, the phenomena of the 
refraction of light was made by Willebrord Snellius (1591-1626), 
the celebrated mathematician, shortly before his death, or about a 
half century after it had been practically demonstrated by the 
Augsburg artificer, as is proven by the specimen here brought to 
your notice. 

After the death of Snellius, Rene Descartes, by some means, 
came into possession of the former's experiments on the refraction of 
light, and published an account of the phenomena, in \\\?> Principia 
Philosophice, 1637, with several illustrations, from which we may 
obtain a possible clue to the missing parts once elevated by the 
figure upon the rim of our interesting specimen. 

Schotus, in his Magia Universalis, published in 1657, also illus- 
trates the refraction of light, PI. xxiii, by a simple experiment and 
plate. None of the above references to a refracting dial, or the 
refraction of light, however, make any reference to the miracle of 
Isaiah ; thus showing that our scientific relic is unique of its 
kind, and was known only to persons who were intimately versed 
in the higher phases of occult philosophy. 

The written records of this venerable Society, so far as I have 
been able to discover, fail to show just from whom this interesting 
relic of Christopher Schissler's handiwork was received, or even 
when it came into possession of the Society. 

Tradition, however, connects this instrument directly with Dr. 
Christopher Witt, the last surviving member of the Rosicrucian 
Community, which two hundred years ago was located on the banks 
of the romantic Wissahickon, in the vicinity of Philadelphia, 
and usually known as the "Hermits on the Ridge." Dr. Witt, 
prior to his death in 1765, gave some of his philosophical and 
scientific apparatus to the local Philosophical Society, then presided 
over by Benjamin Franklin, among which presumably was the speci- 
men under discussion. 

It will here again be necessary to take a short retrospect, viz. : 
Between the years 1 691-1693, a company of religious and philo- 


1895.] -^^ [Saclise. 

sopbical enthusiasts or mystics was organized in Germany. Their pm"- 
pose was to escape the religious and secular proscription under 
which they suffered, by emigation. They naturally cast longing eyes 
tav>^ards Pennsylvania, where liberty of conscience was assured. 

These enthusiasts had all received a liberal education, six of the 
number being clergymen. All were members of the theosophical 
brotherhood known as " Rosicrucians," and were under the leader- 
ship of Magister Johann Jacob Zimrnermann, who, as you will see 
by reference to the reports of the Royal Society, was one of the 
most noted astronomers of the time in Europe. It is to the posses- 
sion of this philosopher that this instrument has been traced, prior 
to his leaving Nuremberg. When finally the *' Chapter of Perfec- 
tion," consisting of the mystic number of fortv, was completed, 
the start was made from the two rallying points, Halberstadt and 
Magdeburg, for Rotterdam, whence they were to embark for the 
New World. 

Upon the very eve of embarkation, Magister Zimrnermann died. 
The vessel, containing his effects, sailed for America, and Johann 
Kelpius was elected Magister in his stead ; under his guidance, the 
party of mystic philosophers came to these shores, and upon the 
romantic banks of the Wissaliickon erected a tabernacle in the 
forest, suited to their occult studies and researches. The structure 
was surmounted by a "Lantern or Observatory" {Ster/nvaric), in 
which a nightly watch was kept for celestial phenomena. This was 
the first regular observatory established in North America. 

It is a noteworthy fact in connection with this community, that 
here in the wilds of the New World were practiced the various mys- 
teries and rites of occult philosophy and esoteric theosophy. 

Here the crucible of the alchemist frequently fumed until long 
after midnight, while the alembic of the Magister was distilling 
juices of herbs gathered at the dark of the moon, in the hope of 
discovering the "Philosopher's Stone " or the " Elixir of Life," — 
in contrast, as it were, to the lonely watch maintained in the 
" Sternwarte " on the lookout for the harbinger of the Bridegroom, 
who was to appear in silky holiness. 

Some of the horoscopes that were calculated and cast by these 
Hermetic philosophers, on the Wissahickon, aye still treasured as 
precious heirlooms among some of the leading families of this State. 

To return to ovcc Horologium. It is known that after the death of 
Kelpius, in 1708, and the virtual disbanding of the Community, 



[Feb. 1, 

all of the philosophical instruments, as well as Zimmermann's 
astronomical apparatus, passed into the possession of Daniel Geiss- 
ler and Dr. Christopher Witt. The latter then went to Germantown, 
and continued in his profession as " Practitioner of Physick " until 
the end of his days. 

It is further known from his correspondence that has come down 
to us, that Dr. Witt was a close friend of both John Bartram and 
Benjamin Franklin ; also that he was upon intimate terms with 
others of the original American Philosophical Society : all facts 
going to substantiate the old tradition as to the actual donor of this 
HoROLOGiUM AcHAZ Hydrographicum, and that the interesting 
instrument is not only a relic of German mechanical ingenuity of 
three centuries ago, but also of the chapter of " True Rosicrucians " 
who settled in the Province of Pennsylvania two centuries ago, and 
were the first community of Hermetic philosophers who attempted 
to put their occult teachings to a practical test. 

.In Old Germantowu Horoscope. 

1895.] '^J- [Boas. 

SalisJian Texts. 
{Read before the American PMlosopJiical Society, March 1, 1895.) 

By Franz Boas. 

The following texts were collected in the winter of 1836-87 on the coast 
of British Columbia. As the languages which they represent are very 
little known, and as I do not see any prospect of adding in the near future 
to the material which I now possess, I consider it best to present tlie 
same as a slight contribution to our knowledge of the languages of 
the North Pacific Coast. Heretofore only brief vocabularies of these 
languages have been published. I have given grammatical notes on a 
few of them ( Proceedings of the British Association for the Advancement of 
Science, 1891), but no texts which give the best insight into the structure of 
a language have been made known. 

After some hesitation, I have decided to make a few changes in the 
alphabet applied for recording these languages. Unfortunately the lim- 
ited facilities of the printing offices deny us the use of diacritical marks, 
so that a systematic phonetic alphabet is out of the question. After 
several years of use I have found the alphabet which I applied heretofore 
not sufficient for the needs of the phonology of the languages of the North 
Pacific Coast. I have, therefore, adopted the following scheme : 

a, e, i, o, u have their continental sounds. 

E, obscure e, as in flower. 

a, aw in law. 

6, o in voll (German). 

L, dorsal 1, similar to tl. 

q, velar k. 

k, English k. 

k', anterior k, similar to ky. 

X, velar, as ch in German Bach. 

X', as ch in German ich. 

c, English sh. 

y, as in year. 

! denotes increased stress of articulation. 


This language is spoken on Bentinck Arm and Deans Inlet, on the 
coast of British Columbia. It represents the farthest northwestern 
offshoot of the Salishan stock. The texts are fragmentary and indifTer- 
ent versions of myths. Nos. 1 to 7 were told by a number of young 
women of the village of Satsq on Deans Inlet, the dialect of which difl'ers 
slightly from that of Nuxa'lk*. The last tale was obtained from Nusk-e- 
lu'sta, a young man from Nuxa'lk-. 

Boas.] '^^ [March 1, 

1. The Snene'iq. 

ApsuLaq tu Lumstatx aneL x'nac eL koana'ts tamnanau'tx. 

lu the house a man and a woman and it cried their child. 

PoLskts ta Snene'iq aa'ai'k'sk-e tk-snikics tamnanau'tx. L'apskto'o 
It came the Snene'iq he intended to shoot him their child. He went 

ta Lumsta'tx sx"e tk'snic ta Snene'iqt. Atemasqto'o ta 

the man and he shot him the Snene'iq. He was dead the 

Snene'iqt. Nutse'exesktsal ta koxlolE'mx'tx. K'anx-ulx'i'skts 

Snene'iq. He dug a hole the ground. He did not return 

ta Lqulx't ta Snene'iqt ta mnastx. Laputskts ta Lqulx't 

the old the Snene'iq his child. He went the old 

Snene'iqt ska koana'ts. PoLaqto'oqtx too'qtx UL 

Snene'iq and he cried. He went down the river down river when 

amatsutstx ska koana'ts. Aianma'o tsk'e'lotsik sle'psdtau 
he sat down and he cried. They went up the river they returned 

wa spaaxo'nau al ta Snene'iq ta koana'tq. PoLa 

they they were afraid (of) the Snene'iq he he cried. 

koa'iotoqtx aqL wa s'a'lEmk'au aianma'o ; tsakui'looq 

They went down the river they went up the river up the river ; they went down 

slepsutelx'ao sdq'oa'o wa spaaxo'nau. PoLskts ta la'iittx sk"a 
they returned they were afraid. He came the la'lit aud 

alE'mk's sk'a anai'x'otsisk ta anusniEna'tx koana'ts ta 

he went up the river aud together ttie the dead child they cried the 

Lumsta'tx ska amto'sis ta Snene'iqt. Tsai'auts. Ta Snene'iqt 
man and sitting with him the Snene'iq. They stopped. The Snene'iq 

kMimsk'ta'o uL ta la'iittx : "Qama'its ti x"a'lo ti li"a ai't6msx"'ino. Axko 

said to the la'lit : " My dear 1 wish to cry with you. Not 

aLnapali'ts ta mnaLts. AtEma'ma ta ninats tix'alotik'a 

I know (where) the my child. Maybe he is dead the my child. ? ? 

aix''ino ti k'a naix'X'otsts. Ti si aLai'tsx*'ats ala au'xoa wa ino ti k'ama'ts 
? ? here to you the 

t'aix" ti La'lia t'aix*. L'aptuts ti La'lia t'aix" ul i'no tix't'ai ti si 
the copper this. I give you the copper this to you this (to be a) 

stalto'mx's la mnaLs. ALk-!x" ke'x'oa wa sols ta mnaLS? 
chief (for) the my child. Do you see it the house of the my child? 

Wix" aLai'ats wa sols ta mnaLts." "A'xk5, kMx'its," tsutkts 
There it is the house of the my child." "No, I (do not) see it," replied 

ta la'iittx. "Tspostse'no skei kMx'ix' wa sols ta mnaLts." 

the la'lit. "I will rub over your eyes and you see it the house of the my child." 

" K'!x"itstsEn wa sols ta mna'Lno." "Aiyai'x* uLi'no wa sols 

"I see it the house of the your child." " Igive to you the house of 

ta mnaL«i ske stalto'mx'nots ska LLe'mno mo'sanmak'no. 

the my child and you will be a chief and you will make a house you four times. 

Aitslo'ix"its'a'tsi wl ta Naust'ax." Lapskts tastaapso'Ls slv-a kuna'mslits 
I leave and go to the Naus." He found it the his town and he carried it 

o'ltsdsqLqtx aL tu sols ta Snene'iqt. Lok- a ti smnt tu 
down the river out of the his house the Snonc'iq. On top of the mountain the 

SOLS ta Snene'iqt. 
his house the SnOnO'iq. 

1895.1 "<^ [Boas. 


A man and his wife were in their house. Their child was crying. Then 
a Snene'iq came and wanted to shoot the chihl. Then the man (whose 
name was la'lit) shot the Snene'iq and killed him. He dug a hole in the 
ground and buried him. When the young Snene'iq did not return his 
father went down the river and cried. He sat down and cried. The 
people who went up the river saw him. They became afraid and returned 
home. Then la'lit went up the river and sat down with the Snene'iq and 
bewailed with him his lost child. When they stopped the Snene'iq said 
to la'lit : "My dear, I desired to cry with you. I do not know where 
my child is. It may be it is dead. I will give you my child's copper and 
you shall be a chief in his place. Do you see my son's house. There it 
is." la'lit replied : "I do not see it." "I will rub over your eyes, then 
you will see my son's house." "JSTow I see your son's house." "I will 
give you my son's house, and you will be a chief. Four times you shall 
build a house. Now I will leave this country and go to ISTaus." la'lit 
found Snene'iq's house and carried it down the river. The house was on 
top of the mountain. 

2. Wa'walis. 

ALi'skuiL iL x-nas Wa'walis ai, tu soLstx wa sx'L mna'naq ta qe'qte 
She was inside the wife of Wa'walis in the house and her child the little one. 

X'Lia'iamis 11 x'nas Wa'walis x'te ix'a'aLs ti asx*. X'sxa'nskuiL 
She wished to eat the wife of Wa'walis the feet of the seal. Her sweetheart 

iL x-nas Wa'walis x*ta satsi'sx. X- snax enax'e'q Wa'walis ti 
the wife of Wa'walis one of his men. His slave Wa'walis the 

imilimi'lk" ti wix'koelo'ok'atx ti pa'axLs wo sti tk'ak"aias. x,apsqt6'o 
boy the one there sitting he steered and he shot. He went 

Wa'walis k"a numpa'ix's sk"a anoai'k-s ala k"a asx* k"a slax. 
Wa'walis and he went in his canoe and he desired the seals the many. 

Tk"atisq Wa'walis tsi qe'qte tsi aa'sx-ui. Lapak'imisqlo'o Wa'walis skya 
He shot Wa'walis a small a young seal. He intended Wa'walis and 

ist5'xis iL a'sx'uiL sk'a q'ali'x'tsis Qoxi'sqtoo x'to stxumtx. 

he cut it the seal and he boiled it with stones. He covered it witli a -mat. 

Ts'osEmqto'o. Walisqto'o tu sooLslistx, xo'lisq ta La'lastx 

It grew dark. He landed at the house, he pusbed into the the canoe 


sk-a anai'x''sqts sx'a q'oplix'is iL x"nas iL ul ta sxanstx. 
and he wished to he watched her the wife at her sweetheart. 

Nuk'alik" to ti snL stsk'tus Wa'walis o'la asa'nk's ta apsoLtx. 
In the middle the night he arrived WaHvalis at at the beach the town. 

Taia'mkitstoo Wa'walis sk'aiasta'mkis ta me'lastx uL ap=6'Ltx. 
He pointed it Wa'walis he pointed the baton to the town. 

Tsito'niElx-sqtoo ta apso'Ltx. Axtsqqo ta sati'x's Wa'walis 

They slept the town. He slept with her the man Wa'walis 

aL ta SOLS ta manstx. L'apsqto'otx Wa'walis ul tu quLe'ixs 
at the house of the father. He went Wa'walis to the head part of 

tu sxetstanau'tx. Aiak'sqto'o Wa'walis ats. LkMmskoiL iL x'nas 
the her bed. He scratched Wa'walis he. She said the mfe of 




[March 1, 

Wa'walis : "K-ixoLix" ta tsk'tsoLk-s Wa'walis." Sx-iik'tsto'o 

Wa'walis : " I wish it would gaaw the stomach of Wa'walis." He grew angry 

Wa'walis sk -a tai'exoisq x'ti tsito'ma iL x'naslL. Tsito'milx-sqt 

Wa'walis and he threw (his baton) and she slept the woman. They slept 



X'nas iL 

en ti 

and her 



PdLsqtoo Wa'walis sk'a ostxs 
He came Wa'walis and he entered 

UL tu 

at the 



Wa'walis usqa sk'a 
Wil'walis outside and 

he cut off the head 

he took the head 




He left 

ta t'E'naqs ta sati'x'Lstx. 
the head of the man. 

He left 

x'wa aLix'lix' 
boiled meat 





he put into it 








Koanatsqto'o ta mnais Wa'walis. 
It cried the child of Wa'walis. 

Slaxs tu 
Mucli the 


tu sxetsta 
the bed 

mna Wa'walis to ple'eqtuya ta sxans ul x-nas Wa'walis. 
child of Wa'walis the beheaded one the sweetheart of the wife of Wa'walis. 

Qotsisqto'o 11 x'nas Wa'walis ta 
She cleaned it the mfe of Wa'walis the 

mnai'nautx sk'a 
child and 

nut a xois 

she washed it 

ta mnai'nautx, 
the child, 

qots IS 
she washed 



Tsito'niElx'sqtao ta 

It slept the 

mnai'nauL Wa'walis. Aq'oLiaqtoo iL x'nas Wa'walis ta 

child of Wa'walis. She wrapped him up the wife of Wa'walis the 

sxanstx sk*a Laptus osqa ul tu sxetstastx ul tu asqat'atx. 

sweetheart and she carried him out of at her bed at the outside. 

Qoqxe'exuisql o'o. 
She covered him. 


She rose 



mother of 



young man. 

laxoe'mqtau sk-a 
They shall awake him and 




x'tu susqoe'mtsq. 
the the younger brothers. 

Lqu'lax'ilix-itx sk*a 
almost grown up and 

" Alatsixo'p'Elk's ax qio'osip?" 
" Why don't you uncover him?" 

He went 

qia'osis. Nusq'a'axEmsqtoo : "At> 

he uncovered him. He cried: "Now 

tiple'exts'Eutx qama'tsaia !" 
he has no head my dear !" 

Koanatsqto'o tu tsaatste'tx. 
He cried the youth. 

They assembled 

ta sta apso'Lautx. 
the of the town. 

" Wa ato ple'ex ta 
"No head the 

man of 




lluatsklo'o sk"a aLl'txums sta apso'Lautx. 
Now all were assembled of the town. 

Po'Lsqtoo Wa'walis sk-a 
He came Wa'walis and 



your man 

" NuqEnki'laxsai'k'anix 
' Put into the water your paddles. 

Wa'walis ! 
Wa'walis ! 



stu ple'ex 
without head 


when the sun rose 



so'nxuats." Tsk-tutskto'o Wa'walis 
sun." He arrived Wa'walis 

nuLqame'exuisqto'o ta 
he carried it the 

q'aitx sk'a 
basket and 

he brought her food 



wife : 

"L'akyani'x noo'mik'lux atu'xtsi sk'e'natix wa 
"Goon! takeout that and feed 


your people." 


She took it out of 





"Is it that?" 

A'xk5, qEnkye'tix- 

"No, it is below 

taia'mix'." KisqtiVo ta q'omneq'oLs ta sxa'nistx. "Tsix'sa'mats'ai 
what you like." She saw the skull of the sweetheart. "Why 




tsi nusq'a'axem aL atuste'ix'?" E'p'isqtoo Wa'walis ta mnai'natx. 
do j'oii cry at that?" He took Wa'walis his child. 

Ep'isktuts ta La'liatx En ta 
He tooli it the copper and the 

s'aLoqoala'stx ; nupaix-aqto'o. 

shamanistic implements ; he went into the 

AuLe'mqtoo Wa'walis x'ta sta apso'Lstx sk'a wuntsi'maxlo 
They pursued him Wa'walis those of the town and they wanted to fight him 

k'a pakiinixi'm. ALauat,emqt6''o Wa'walis nuix'ayaqetomkoalo'q 
and- they overtook him. They pursued Wa'walis they were near him, 

iasta'mkisqq ta s'aLoqoa'lastx. AtEraanaqqo'o to aLau'Ltalutx. 

he pointed at them his shamanistic implements. Tliey were dead these pursuers. 

He paddled on the fjord 

They did not reach him 








to the 



K'lx-isqto'o Wa'walis ta apso'Ltx 
He saw Wa'walis a town 











Nuk'pa'axisqtoo Wa'walis ta Lala'stx sk"e exnusa'kias 

He landed Wa'walis the canoe and he went into all the houses 

ta soLo'k'stx. 

the houses. 


No one 

He wished 

Wa'walis sk-a 
Wa'walis and 


was there. 


to marry 

Ti k-ik-!x-is ti 
He saw 



iL mEaa's 


a man. 

ta Lqulx'tx 
of the old man 


auk "aia'aLtx. 

blind one. 

He took 

Wa'walis tu sto'tsemstx Lqulx'tx. 

Wa'walis tlie boiled dried salmon of the old one. 

Tsalx'lioamisqto'o ta 

He did not find it the 

Lqulx-tx tu 

old one the 


boiled salmon 


dried salmon. 

Lk'Etnsqto'o ta Lq'ulx-tx ul iLinnas'iij: 
He said the old man to iiis daughter : 



my dear, 

UL ti 

to the 

always said so. 







playing with 

aiaxE'mtstski al ta sta 
playing with those of the 

"Qamai'ts, uuk'X'alexe'intx 

" -My dear, look back 

s nu'kyakilstx'u'tsmiLts 
boiled food 

ta s 



tsu taina't'aix' 


"Stop I 

do not talk, 

qamai'ts !" 
my dear !'' 


? " he 

She looked back 

the old man. 

He said to 


You speak the iruth. 

q'oalaix'a'lx* Wa'walis : 
the old one Wa'walis : 

A man 



ti x"to 
that one 

mna'no ts'aix 
your daughter this. 

ti k-a 


"I will 

" Anoai'k'ts 
' ' I wish to 


ta n'tx'aL lao. 

he is near you." 

sk"a talau'sts ul 
and marry to 


restores my eyesight 

ti k"a ta'laus ul tsi 
he marries to the 


my daughter 

your daughter 

ai'toms ti k"a k'!.x'ailai'x'toms 
? he restores my eyesight 

ts'ai'x'." "Talauststo'oLtsx- anoai'kx'ts 

this." " I want to marry her I will 

Usia'm aLi'ik's ta sta aps5'Ln6 







' Once I cried (?) 

wa psliua'tas 

are those of the your town 

Lqamai'ts V ' 
my dear?" 



Sta apso'Lts 
of the town 


they went for water 



of the 


He devoured them 


all of them 

t aix' 


Boas.] ^^ [March 1, 

al ti qxla t'aix", qamai'ts. Lokoa'lats'ino?" "SLokoalano'toox"' 
in the water this, my dear. Are you a shamau?" "I am. a shaman 

Ens." "ij'ak'anax k"!x*ailaixto'mx'." " Klx'ailaixio'minoto." 
I." "Goon! restore my eyesight." " I shall restore your eyesight. " 

K-!.\:"ailaix'sqt6'o ta Lq'ulx-tx. SEmqlasqto'o ta qeqte'tx. 

He restored his eyesight the old one. He wanted to have water the little one. 

L'apsqto'o ta snax'Enaxe'tx sk-a qa'axlas. K'nix'e'mqtoo x"ta 
He went the slave and fetched water. He devoured him the 

Sk''ain9k"tx. L'apsqto'o Wa'walis sk'a iasta'mkis ta s'aLokoa'lastx. 
Sk-'amsk". He went Wil'walis and he pointed the shaman's imple- 


AtEmasqto'o ta Sk*'amsk'tx. Nusq'itsqto'o Wa'walis : "LaLani'x! 
He died the Sk-'amsk-. He cut him open Wa'walis: "Come! 

qamai'ts, k'lx'tix" wa smatEmx-nutsx'. Anoai''k"ts sk-a nitsmau 
my dear, see the your people. I wish he and make alive 

wa smatE'mx-nutsx." " A'xk5 aLk'pau sk'a smatE'mx'ts. Axtxoaio'tsno 

the your people." "No they all and my people. Be silent 

k"a tEmsna'axLiidmats k'a tEmsiaidLmaLno'mats." 

and they will be your slaves and they will be your servants." 

ii'apak'imtisqto'o Wa'walis k"a nuta'xtis. Wulxla'akq'o ti 

He healed them Wa'walis and he washed them. He limped the 

noma'o. PatsuLakimi'tsklut Wa'walis ta sua'axstx nut'a'xois. 
one. First he healed him Wa'walis the slave he washed him. 

Nut'axtisqto'o to aik"'ein to aLatEina'tx sk"a snaaxa'qts 
Theu he washed them those long ago the dead ones and they became slaves 

aL iL x'nas Wa'walis. Tsaiak-imsqto'o sk"a mosanmak'sqts 

of the wife of Wa'walis. He finished and four times 

Wa'walis sk'a tskis wa mo'suL wa sol wa Lix'Liko'ooL wa 

Wa'walis and he made the four the houses the large the 

so'iidk-s sk-a stalto'mx'sts Wa'walis sk-a Lqoana'tsts Wa'walis 
houses and he was a chief Wa'walis and he became great Wa'walis 

sk-a stalto'mx-s. 
and chief. 

L'apsqto'o iL x-nas Wa'walis sk-a niix-'a'p'is tu ts'i'maL aL 

She went his wife Wa'walis and she washed the intestines of 

tu asx-tx. Stsaisqluq wa sk-nix'is iL x-nas Wa'walis. 

the seal. She likes only one kind of food the wife Wa'walis. 

PoL'aktoo tu siu'ltx sk-a isutau' ; nmpeiuqto'o iL 

It came the killer whale and paddled; he took her into his canoe the 

X-nas Wa'walis. "Wa'walis! nnipe'm iL x uasLno x-tu 

wife of Wa'walis. "Wa'waUs! he took her into his the your wife the 


siu'tax." Oqxisqto'o Wa'walis ta snax-E'nx'istx : "L'aLi'x 

killer whale." He said Wa'walis to his slave : "Come! 

auLtiLt'a'x k'ma'nx-its iL ta x-nasts." Iso'tsqton Wa'walis sk-a 

we will follow her recover the my wife." He paddled Wa'walis and 

aL'auLtis to siu'ttx. Aianino'otskue'lots'ik- Wii'walis. 

he followed it the killer whale. He stopped Wa'walis. 

AL'episkoe'lots'ik- Wa'walis ta q'E'lx-sutx ; s'aLipoLoosisqts ta 
He took it Wa'walis the rope ; he let him down tlie 

snox-iutxe'stx. L'apsqto'o Wil'walis sk-a nio'lEnis sk-a 

slave. He went Wa'walis and he jumped into the water and 



he followed 

He arrived 



x'na^' iL. 



Almost below 


Wa' walls 



xetnsqio'o wa so'nx-'uats. 
it got day the sua. 

ta koxlo'lemx-tx. KMx'isqto'o Wa'walis 

the country. He saw Wa'walis 

ta quio'oLank'tx ti k'tsa'tsaiia ta isumkumLe'tx ta lu 

the stout one the one who chopped wood the one who gathered fuel the 

qu'lx-'etx. Osek'a'msqtoo Wa'walis ul ta stntx. Qat'oLo'osakisqq 
old one. He entered Wa'walis in the tree. He broke ofl 






Koana'tsqq ta 
He cried the 

old one : 

anana' ! 
anana' ! 

K'exL'e'ts'ama ta 
He grew augrv' the 


stout one 



tsi'extsau'a. "Q'ulaix'a'lx* 
his wedge there. "Old one ! 





sk'a k'stuts. 
and I do it. 


he carried her into 
his canoe 





Do you wish 


do you know 

sk*a aik'ek'mi'ts atu'xtsi 
and I repair that one 

tsi k-a x-nas tsi k-a 
her the woman her 



k"a i'sut, qamai'ts?' 
and he paddled, my dear?" 

'T-iix'ma tsi 
'That one her 


he carried her 







that one 



nux"ema'xtsx" ala 
sits near the fire in the 

SOLS ti stalto'mx'tx* 
house of the cliief. 

Ti x'lo'otx* ti iskaraLalo'sits k-a qa'axlatsuiastu'ts 





house of the 


stand upright. 


I carry fuel 


She is there 


I carry water 






I make Are at 





I pour out 

nuLqta'tx" sk*a 
post and 





She is there 







L apno 

you go 






your wife." 



." Lapsqtoo 
He went 

e'nsts'En ta 
I am the 


LEmsqto iL x'nas iL. 
She arose the woman. 





anuka-'laLis tu 
threshold of the 

x'nas iL. "L'ak'e'it, LE'mno 
woman. "Come! rise 

Tiratsqoa'LEinsqtoo qmo'oLa'nk -tx 
He lay down the stout one 

Lapsqto'o Wa'walis sk'a aLepis 11 
He went Wa'walis and he carried her 


X'nas iL 
his wife 

sk-a le'psutau 
and they returned 

Wa'walis oak'snemuts aL 

climbed up at 

UL to 

to the 



only bones 




their country. 


PatsaL kue'lots'ik' 


Q'atsatisqto'o Wa'walis ta 
He shook it Wa'walis the 

PoLsqtoo iL 
She came the 

X'nas iL 













slave of 



Lapak'inisqto'o Wa'walis 
He wanted to heal him Wa'walis 

sk'a nitsE'mtus 
and he made him alive 






He went 



iso'ts UL ta k6xlolE'mx''autx. Letx'umsqtS'o ta sta apso'LS 
he paddled to the their country. They assembled those of the town 






a chief 

smaqto'o ti 
one the 

s aniL, 

sk'a Lqoana'ats 
and he became great 




her country 


X'nas iL. 

Boas.] ^y [March], 


The wife of Wa'walis and lier child were staying in tlie house. She 
desired to have seal flippers to eat. One of Wa'walis' men was her lover. 
Wa'walis went hunting and his young slave steered his canoe. He went 
to shoot many seals. He shot a young seal, which he cut up and boiled 
and covered with a mat. When it was dark he landed near his liouse. 
He pushed his canoe into the water. He wanted to watch his wife and 
her lover. At midnight he arrived at the beach in front of the town. He 
pointed his baton towards the town. Then the people fell asleep. 
Wa'walis' man slept with her in the house of her father. Wa'walis went to 
the head part of her bed and scratched at the wall. His wife said : "I wish 
(that mouse) would gnaw Wa'walis' stomach.'' Wa'walis grew angry. 
He stretched out his baton and the woman fell asleep. She slept with 
her lover. Then Wa'walis came and entered the house. He cut off the 
bead of the man. Then he went out of the house and took the head of 
the man along. He went far away and put the head into a basket. He 
covered it with seal meat. 

Wa'walis' child cried. The bed of the child was full of the blood of the 
beheaded lover of Wa'walis' wife. She washed the child and the bed and 
the child went to sleep again. Then she wrapped up her lover and car- 
ried him out of her bed and out of the house. She covered him. 

(On the next morning) the mother of the young man arose (and told) 
his younger brothers to wake him. (They called him, but he did not 
stir.) "Why don't you uncover him?" The oldest one went and un- 
covered him. He cried: " O, my dear, he has no head !" The youth 
cried and the people assembled. "Oh, Wa'walis' man has no head." 
Now all the people of the town had assembled. Then Wa'walis came 
paddling. (They cried :) "Put your paddles down, Wa'walis ! One of 
your men was (found) without head when the sun rose this morning." 
Wa'walis arrived, carrying the basket, in which he brought food for his 
wife. "Come! take the basket and feed our people" (he said). She 
took the basket: "Is it this (what you want to give me?" she asked). 
"No, what you like to have is below." Then she saw the head of her 
lover. "Why do you cry on seeing this?" Wa'walis took his child. 
He took his copper and his baton and went into his canoe. The people of 
the town pursued him. They wanted to kill him. They came nearer. 
When they were near him he pointed his baton at them and his pursuers 
were dead. He paddled on the fjord towards the sea. They did not reach 

(Soon) Wa'walis discovered a town. Smoke was rising from one of the 
houses only. Nobody was to be seen. He saw a man. Wa'walis 
wished to marry the daughter of this old, blind man. He took the boiled 
dried salmon of the old man. The latter could not find his salmon and 
said to his daughter: "Look back, my dear, somebody must be in the 
town and is playing with my food." He alwaj's said so, and she replied : 
"Stop ! do not talk, my dear I" But then she looked back towards the 

1895.] ^^ [Boas. 

old man. (She saw the stranger and said :) "You spoke the truth ; a 
man is near you." Wa'walis said to the old man: "I wish to marry 
your daughter." "I will give her to him who restores my eyesight." 
"I want to marry her " (replied Wfi'walis). " Where are all the people 
of your town, my dear?" " When they went to fetch water, that being in 
the water devoured them, my dear. Are you a shaman ?" "Yes, I am a 
shaman." "Then restore my eyesight." "I shall restore your eye- 
sigbt." He did so. Then Wa'walis' child wished to have water. He 
sent his slave after water. Then (the monster) Skyamsky devoured him. 
Wa'walis went out, pointed his baton at it, and Skyamsky died. He 
opened its belly (and said) : " Come, my dear, and look at your people. I 
wish to resuscitate them." (The old man said:) "They are not my 
people. Don't say anything, they will be your slaves. They will be your 
servants." Wa'walis washed them and healed them. One of them 
limped (because one of his bones was lost). Wa'walis first washed his 
slave and healed him. Then he washed those who had been dead long ago. 
They became slaves of Wa'walis' wife. After he had finished, Wa'walis 
built four times large houses, and he became a great chief. 

Once upon a time Wa'walis' wife went to wash the intestines of a seal. 
She liked only one kind of food. Then the killer whale came paddling 
and took her in his canoe. "Wa'walis ! the killer whale took your wife 
in his canoe." Then Wa'walis said to his slave : " Come, we will follow 
him and recover my wife." Wa'walis went in his canoe and pursued the 
killer whale. He stopped. Then he took a rope and the slave let him 
down. Wa'walis jumped into the water and followed his wife. When 
he almost reached the bottom of the sea it grew light, and the sun was 
shining. Wa'walis arrived in a country and saw a stout old man who 
chopped a tree for fuel. Wa'walis hid in the tree and broke off the point 
of the (slave's) wedge. The old man cried : ananah. He became angry 
on account of his wedge. (Wa'walis said :) " Old man, stop crying. If 
you so desire, I will repair your wedge. Don't you know about a woman 
whom a man carried away in his canoe, my dear?" " He carried her into 
the house, where she is sitting near the fire, in the bouse of the chief. I 
am going to carry fuel and water into the house. I shall make a fire. 
You stay behind the post of the house and wait. She will be right there. 
Then I shall pour the water into the fire. At that time you must go and 
take your wife." Wa'walis went and took the woman. "Come, rise. 
I am Wa'walis." She arose (and they went out). The stout man lay 
down on the threshold of the house (and made himself so big that the 
killer whale could not leave the house). Wa'walis took his wife along 
and they returned to their country. Wa'walis was the first to climb up 
the rope. He shook it and then the woman climbed into the canoe. Only 
the bones of the slave (whom Wa'walis had left in the canoe) remained. 
Wa'walis healed him and revived him. Then Wa'walis paddled to their 
country. They had been away one winter and one summer. The people 
assembled and he became a great chief in the country of his wife. 

Boas.] 4U [March 1, 

3. The Creation op the Salmon. 

Tsalx'liwa'nakto'o stain sEtnLx-akoa'la Yula'timot, Masmasala'nix 
They could not find it the salniou right Yula'timot, Masmasala'uix 

stam sEiiiLk-au'aL. Xeltots qoax ; sk'ix-a'alasnos ske ti 

the real salmon. He went to fetch it the Raven ; he went to find it and the 

x"ma'noas. Oqxtix'sto'o qoa'x skukuLx'nastx TsuastE'lqs, 

its soul. Thej' accompanied him the Raven his younger sisters TsuastE'lqs, 

Stsuak"tE'laqs, X'ilx', Ask'ani'qs. Lapaqta'oqs sk'e isu'tau ; 
Stsuak-tE'laqs, X-ilx-, Ask'ani'qs. They went and paddled; 

tsk'taqto'o ul ta sols ta sEiuLk'tx. Iputisto'o ti qoa'xtx* 
they arrived at the house of the Salmon. He hid them the Raven 

skukuLx-na'slx al ta siupTi'nxt. TsosEiiiqto'o. L'apakto'o 

his younger sisters at the point of laud. It grew dark. They went 

sk-e nuk''ixa'aqit tu Lalasa'axt tu SEtnlk'. Laptutsta'uLk" ti 
and gnawed through the canoes of the Salmon. He went the 

qoa'xtx" sk-8 aLpsta'onikua. A'laxits ti x'ma'nuostx* ti 

Raven and they fed him. He wanted to steal the child of the 

SEmLk". AxtsEmksto'o ti qoa'xtx •. Xemskto'o, wa sp'alk'ts. 
Salmon. He lay down the Raven. It got day, that he rose. 

Xems aLpstomktuts al ti e'noxtx. Tsaiutskto'o sk"a 

It got day they fed him again in the morning. It was finished and 

nupai'x's ; sulix-tsemkto'o x'te stalto'mx-tx. 

he loaded his canoe ; he gave them traveling provisions the chief. 

Aiutskto'o qoa"x. "Tsix'tx tsi mnanu'tsx* tsi k-auaLts 

He said to them the Raven. " Her the your daughter the let her load it 

UL ti Lala'stx'." Lapskto'o qoa'x sk-e nupai'ts. 

in the canoe." He went the Raven and he went into the canoe. 

Lapskto'o iL mEna's ti stall o'mx' sk"e k'au'aLis 

She went the daughter of the chief and loaded his canoe 

qoa'x x'iL niE'nas ti stalto'tnx'tx. Limaskto'o 

the Raven's the daughter of the chief. He look her away 

qoa'x x'iL mE'nas ti stalto'mx'tx. Lapskto'ox qoax 
the Raven the child of the chief. He went the Raven 

sk'a isu'Lts ; tsk-t&kxto'o ul skukuLX-na'stx. PoLskualo'ls ta 
and he paddled ; they arrived at his younger sisters. He came the 

ma'ns iL tsa'atstei sk"a a'uLem qoa'x. Nutsku'lxskq tu 
father of the girl and pursued the Raven. It foundered the 

Lala'stx. Anuk'ixua'aqLau TsuastE'lqs. P5ls ti qoa'x sk'a 
canoe. They had gnawed it through TsuastE'lqs. He came the Raven and 

isoLS UL Nusa'lk-, xtsa'mkix'ts qoa'x iL mE'nas 

paddled to Nuxa'lk-, he threw her into the water the Raven tlie child of 

ta sEraLk'. Slaxkts ta sEuiLk" aL tu tEmtx. 
the Salmon. Many the salmon in the river. 

Yula'timot and Masmasala'nix could not find the real salmon. Then 
the Raven went to fetch the soul of the salmon. Ilis younger sisters 
TsuastE'lqs, Stsuak-tE'laqs, X'ilx", and Aska'uiqs accompanied liim. 
They went paddling in their canoe and reached tlie house of the Salmon. 
The Raven hid his younger sisters behind a point of land. When it was 

1895.] 41 [Boas. 

dark they went and gnawed holes through the bottoms of the canoes of 
the Salmon. The Raven went and (the Salmon) fed him. He wanted to 
steal the daughter of the Salmon. The Raven lay down. When it got 
day he arose. Then they fed him again. When they had finished he 
loaded his canoe. The chief gave him traveling provisions. The Raven 
spoke : "Let your daughter put them into my canoe." The Raven went 
into his canoe. The chief's daughter brought the load into the canoe. 
Then he took her (into the canoe) and paddled away. They arrived at 
(the place where he had left) his younger sisters. The girl's father came 
and pursued the Raven, but his canoe foundered. The Raven's sisters 
had gnawed it through. The Raven came to Nuxa'lk*. Then he threw 
the Salmon's daughter into the water, (and since that time) there are 
many salmon in the river. 

4. The Deer and the Raven. 

Alai'k'S atE'mas ti mna'is ti sx'pani'Ltx. Wa skoana'tsqts wa 
Long ago it was dead the child of the Deer. He cried he 

s'ai'mis ti sx'pani'Ltx' s'anusmE'nas : " AnusuaLax"Lai' ta 
always the Deer for his dead child : "ItisdeadC?) the 

mnaLsai' ananai'k's ta mnaLsai'. ALnix'ne'q'ots anima'so wa 
my child, I cry aiiana' for the my child. ? ? 

siai's ta mnaLsai' ananai'k's ta mnaLsai'." 
? the my child I cry anana for my child." 

PoLsktu'o ti qoa'xtx* sk"a anai'x-otsis sk'a koana'ts : 

He came the Raveu and sat down vvith him and cried : 

"Anoai'k'ts sk-a aLuai'x'Otstsino aL ta mnaLno sk"a koanatiL, 
"I wish to and together with you to the your child and we cry, 

qamai'ts. AnusniEna'nomak's ala lau'atuxtsL koanatsmasa auxtsi 
my dear. Your dead child ? cry 

aL ti anusniE'na x'ti mEnas, qamai'ts." Ti qoa'xtx" sk'a 
about the dead child the his child, my dear." The Raven and 

qe'exlixis : "L'aix'L'aix'k'aik'aL ti squ'x'ts'ai," koana'tsqts ti qoa'xtx" 
began: " His legs are thin the legs," he cried the Raven 

sk'a nuya'mts. Nnya'ratsqts ti sx-pani'Ltx* : " Wix'wix'lx-a'L ti 

and he sang. He sang the Deer: " His legs are lean the 

squx'ts'ai." Anoai'k'ts ti qoa'xtx- sk*a k'xmixn's ta sx'paniLtx 
legs." He wished the Raven and for food the Deer 

sk-a nuLuqo'axisqts ta sx'paniLtx ta stsqa'ats. LapakMmisqto'o 
and he ate his inside the Deer's his anus. He opened him 

sk'a i'stox is. L'apaqto^o tu susqoe'mtsx sk'a aLxapate'm 
and skinned him. They came the his sisters and carried it home 

ta sx'pani'Ltx. La^pak'memqto'o sk"a slome'm ta sx'paniL sk*a 

the Deer. They cut it and boiled it the Deer and 

k'x'nix'e'mts ta sx'pani'L. 
it was their food the Deer. 


A long time ago the child of the Deer died. He always wailed for his 
dead child. " Oh, my child is dead. I wail for my child." The Raven 


Boas.] 4-1 [March 1, 

came, sat down by his side, and cried : "Let us wail together for your 
child, my dear." Then the Raven began to sing his wailing song and 
said: "Your legs are thin." The Deer sang: "Your legs are lean." 
The Raven wished to have the Deer for food. (He said : "Don't scold 
me," and pushed him so that the Deer fell down the precipice near which 
he was sitting.) He began to eat him at his anus. He opened him and 
skinned him. Then his sisters came and carried the deer home. They 
cut it, boiled it and it served as their food. 

5. The Origin op the Mink. 

Sx"umk-ts \va sonx ats alai'lc*. Sx'uma'lustusq T'otqoa'ya 
It burnt the sun once. He burnt everything T'otqoa'ya 

alai'k". E'noxmaqs qumaito'o sk'a fi'nuxyeks wa slax wa 
once. In the morning he rose and went to get fuel the much the 

ne'ix. Nuk'ali'k'ti sonxtx sx-uma'lus wa so'nx ats, sk*a atama'nauts 
fuel. At noon the sun burnt all the sun, and they died 

wa slax wa L'umsta'tx". Slaxs ta xtsamk'tsut ta Lumsta'lx*. 
the many the men. Many swam the men. 

Sk'x'nalustokts ti Snx t'aix' ta mnastx sk-a taia'mkits oaxe'nk* 
He broke his bones the Snx he the his sou and threw him down 

sk'a t'o'kyas ala qeak- ats. 
and minks at below (were.) 


A long time ago the sun burnt everything. T'otqoa'jj'a (m3'^thical name 
of mink) burnt everything. He arose in the morning and went to get 
fuel. At noon the sun burnt everything and many people died. Many 
people (jumped into the water and) swam. Then Snx broke the bones of 
his son, he threw him down (fi'om the sky) and he became a mink. 

Note. — This refers to the tradition of Mink or T'otqoa'ya, who was the 
son of the sun god (Snx) and of a woman. He was maltreated by men and 
visited his father in the sky, ascending to heaven in one version on the rays 
of the sun, Snx's eyelashes ; in another version along a chain of arrows 
which he had made. He carried the sun in his father's place, but dis- 
obeyed the instructions of the latter, approaching too near the earth. 
Then the woods began to burn, the rocks to crack and the water to boil. 
Snx caught his son, flung him down and transformed him into the mink. 

6. The Creation op the Sun. 

X'LmE'nas ti Snx t'aix" wa name's wa x'na'suks. 
The daughter of the Snx that one the four the girls. 

L'apskto'o qoa'x sk-a qoa'ls ul ta qlatx. i/ap anaik'sqto'o 
He went the Raven (as) spike of flr to the water. Fetch she wished to 

11 qoalE'm iL niE'nas ti Snx t'aix" sk"a qa'axlas ul ta 
the eldest one the daughter of the Snx that one and drank at, the 

qlatx. Qaaxlamfi'nix'isqto'o ta qoa'lstx. Atsiwilktfi'mk'imts qoa'x 
water. She drank the spike. She became pregnant with the Raven 

1S95.] "^^ [Boas. 

sk"a qoa'ls. Mosqna'mk'imts qoa'x sk-a noosqona'mk-imts 
(as) the spike. After four days the Raven and she gave birth to 

qoa'x. Sk'a anoai'k-sqts ti qoa'xts la qe'qte aL ti 
the Raven. And he wished the Raven the little one for the 

paqeye^latx ta nusxe'mtatx. [Al to ai'k'tx s'enL. Ti sonx 
box the having the daylight. In the past it was dark. The sun 

wats ik-a'x ; koaloxe'mtEulL axk'aai's qoa'x SkuLuma'atli'oas 
it was not ; it grew daylight when he went up tlie Raven. He wanted to have every 


qoa'x ax, to aik-tx.] S'anoai'k'sqts qoa'x sk-a ye'ix'mis 
the Raven in the past.] He wished the Raven and to play with 



aL to 






ti Snx 



with the 





He said 

the Snx 

t'aix- UL ta ranastx : "Sk'a maL anoai'k'ats sk'a ye'ixmis." Sk-a 
that one to his child: "And he wishes to and to play." And 

yai'aLkunis to paqeye'latx. Oaxe'nk-. Tsaiatttsqto'o qoa'x 
he played with the "box. He went down. He stopped the Raven 

sk-a koana'ts, s'yaiaxmists to paqeye'latx. 
and crying, he played with the box. 


Snx had four daughters. The Raven -went. (He transformed himself 
into a) spike, -which dropped into the -water, (from which) the eldest 
daughter of Snx used to fetch -water. She drank the -water and swallowed 
the spike. She became pregnant and after four days she gave birth to the 
young Raven. The little Raven -wished for the box in -which they kept 
the daylight. [It -was dark in the past. There -was no stin and it grew 
daylight when the Raven went up. He wanted to have everything in 
the past.] He wished to play with the little box of the father. Then Snx 
said to his child : "He wishes to play with the box." (She gave it to 
him) and he played with the box. Then the Raven stopped crying and 
played with the box. (He finally took it out of the house and broke the 
box. Thus the sun was liberated.) 

7. The Boy and the Salmon. 

Asqusnote'mq x"ta manstx. Sx'ilik-tskto'o JL sta'nti- 
He always brought him food the his father. She grew angry the his step- 
mots iL. L'aptuskoaluqto'o sk-a e'natis 11 x'nas iL. 
mother the. He gave her to eat and presents of food the woman the. 

Nutaiamk-ix'emto'o tu s'e'natiskoaalo'tx sk-a aiaLtd'm ul ta 
She threw them down the presents of food and she spoke to the 

mnastx. Lapskuts ta tsaatste'tx sk'a sx-lix'lik-tums sk-a ixq'E'ms 
his child. He left the youtli and he grew angry and went 

sk-a k"'ix-omats sk-a ixq'E'ms. Lapak-stoo sk-a tk-six-casqtx* 
and he did not know and he went. He left and he shot it 

tu tsitsipe'tx. Tk'sna'nix-isqtu'o ta smLk-tx. L'aputsqto'o ta 
the bird. He hit it the salmon. '? the 

smLk-tx sk-a nunusqoaxE'msq ta smLk-. Tsk-tsqto'o ta 
salmon and it cried the salmon. He arrived the 



[March 1, 







mk'tsx !" L'aptuskttVo 
me into the water !"' He took it 

Ue said 

ti tsaitse'tx 
the youth 

ta smL,k-tx : "Tqtsa'- 
the salmon : "Throw 


he threw him into the 

ta siBLkix. Stsux'emsqto'o ta smLktx sk"a maLa'pts. Lk-imqsl6'o 
the Salmon. He jumped the Salmon and once. He said 

smLk'tx x'k-ix'a'Iasnix'is tu tsaate'tx tu tsapts ta 

Salmon he should look for the youth the bone of the 





Axk5ts 'ek"!k"is tsaatste'tx 
Not he saw it the youth 

ta nutqa'l'axitas ta smLktx 
the bone of the nape of the Salmon 

x"wa L'aps k-!x"esqto'o. Laptutsqtu'ts sk-a qtsa'mkis. 

that ho found it he saw it. He gave it to him and he throw him into the 


Nuk'tsa'axtsotskts ta smLk'tx sk'a Lala'sqts. 
He came ashore the Salmon and his canoe. 

He was good. 

Nupemo'tskts oqxe'mq ta smLk* ; Lapa'kts. Lk*'imsqt6'o ta 
He went into his canoe down (?) the Salmon; he left. He said the 

sraLk'tx sk"a axsE'ms tu tsaatste'tx. " Axtx qOoxo'mno." 

Salmon and he should pull his blan- the youth. "Not uncover your head," 
ket over his head 

tsutkd'its'ek ta smLk'tx. 
spoke the Salmon. 

Wix'to'tsa sk'a tsk"!x'tlL sk'a iaxtsi'no 
" Those and we see them and I awake you 

UL ti aps5'L ti tk'lx'iLiko'ots t'aix'." Tsk-taqlo'o ul ta apso'Ltx. 
at the town the we see it that one.'' They arrived at the town. 

laxoe'mqto'o ta sols 
He waked him (at) the house of 

ta t'ex'Lala'tx, Lapaqtu'ts ; tsk'taqtu'ts 
the (a bird). They went ; they arrived 

UL ta apso'Ltx tsutsule'ttsx. S'nuyamlsq s'amit wa s'nuya'mtau 
at the town of (a bird). They sang always they sang 

tsi tsutsule'ttsx. 
the (birds). 

ti k'a sma'o ala 
the one at 

ias ti k'a sma'o. 
good was the one. 


He said 

ta sraLk'tx 

the Salmon : 

"K'a maLyanixix' 
"When you like it 






the house of the 

iL. Lapaktu'ts 
the. They left 

qulExlele'ts iL sk'a 
(bird) the and 

L'apa'ktuts sk'a uali'tk. 
They left and went on. 



They went on to 

isutau' ; tsk'tatu'ts 
paddled ; they arrived at 

iana'xtsq tu ti x'na'sitx 

she was pretty the 

They arrived 







ta ^"="' 




apso'Ltx ta 

town the 




SOLS ill 

house of the 

They went on. 

house of 

iL qoaqoa'os iL. Omakto'o ta 

the (bird) the. They went ashore at the 

apso'Ltx sk'a aLixoai'x'slora 
town and he went into the 


ta tsaatste'tx. Aiotsqto'o ta tsaatst'e'tx : "Si'as ix'Lo nia'o iL, " 
the youth. He said the youth "She is pretty the one she," 

aiotsqto'o sk'a talau'sau. Lk'Ems([to'o ta smLk'tx sk'a 

he said and they married. He said the Salmon and 

sx'ULamisa'16 ; aio'tsq ta smLk'tx: "S'ax ti k'a ne'nits ti k'a 
forbade it ; he said the Salmon: "Not he survives 



iL qoaqoa'os il. 
the (bird) the." 

Lapsqio'o ta 
He left the 

tsaatste'tx ul iL 


to her 





11 L 



lay down. 

Xemsqto'o, atntsqto'o, 
It got day, he arose, 

not he 

was dead. 

They left 





house of 





He said 





child of 



SEmtsix -koe'lotsiq 
They reached 



their geople 

saiiiL iij. Tso 

samL her. 

aio tsmis 

he said 



youth : 


si'as ta 
Good is the 

squptstx : " Sti 

sqapts : "A 

omakto'o sk-a aLelaxt5'm. 
landed and ? 

omataLau'tuts k'utsix'a'tx 

They landed 

koxlo'lemx" amats ta 
country where the 

tai'a ta x'ix'na'setx." 
pretty the girls." 

Laputsaqto'o tu t'litx sk-a 
They lelt the t'li and 

They avoided 


she laughed. 






house of 






he spoke 

they are merry 



Salmon : 





UL amatau' 

at where they 

a man 



house of 

They went on 

looked much. 

s'iLiLq'oltimotau'. " 
they laughed." 

k-'apai' iL. Sk-a 
k-'apai' her. And 

Wa sia'nau 
They are glad 

They went on 


Aiotsqto^o tu tsaatste'tx, 
He said the youth, 

wa apso'Lau sk-a 

(in) their town and 


They reached 

bad was 

town of 




UL ta ?6ls ta uai'stx ; o'maqtuts. Sk-a 
to the house of the silver salmon ; they landed. And 

K-!x-itqt6'o qnuseraqto'o tsaatste'tx x-ta smLk-tx 

he sighted the vouth and the Salmon 

tu ti 


He saw 


snut axma'qx. 


He was sitting there 







al ta koxlaaxo'ts ta nuqla'tx. Lutso'oLisqIo'o 

at the bank of the water. They exchanged their cloths 

"Slutso'OLa'nix-iL." Stwi'nmau 
We will exchange cloths." They came 

sk-a nut'axmau'. Lapakto'o sk-a qxtsamx-tsutau'. 
and bathed. They went and went into the water. 

ti x-q'oe'lok'atx': 

the ? 

He came 


They returned 



he washed them. 

They left 





house of 






They recognized him 



were afraid. 





He married her 

the youth 










He got chUdren 



he thought 



s enL, 
















house of 







father of 





they left 






They made it 


thev visited 

They arrived at 

stutix-qtuya ta 
that one " the 

father of 

ta staate'tx ti aLqp aL ta siLma'k-tx 

the voulh the being above at the salmon weir 



crying much. 

He lifted the net 






rope of bark . 

Boas.] 4.^ [March 1, 

Xuenemutsqto'o ta manstx wa stutix-ktuya ta mnastx. Ti 
He recognized him the father of that one the son. He 

k'lx'is a ta siLinak'txs. Nitx'umsqto'o ta sta apso'LS ta 
saw him at the salmon weir. They came to his house those of the town the 

x'q'ulx'tx. Aiots^to'o ta tsfiitste'tx nusqtsolimx'a'lstx. Ostxsqto'o 
old one. He said the youth they should clean the house. He entered 

ta tsaatste'x ul ta sols ta manstx. Lats'a'xsqts tsaatste'lx 
the youth at the house of his father. He related the youth 

wa stsais : " tu iqtx annai'kMiii tu smLk'tx. Ai5'tsau tu 
to alloftliem: "the cedarbark they desire the salmon. They say the 

smLk-tx sk-a aLpstute'm x'ta iqtx." K-stute'mqx 

salmon and they eat it the cedarbark." They bit each other 

swintste'm xta mnmatsaito'o tu Lu'mstalx sx'ek-tno'mktuts 

they fought the children of the man they struck each other 

Lapskats. " II mnsta'iL sk*a sx'ix'lix-tE'ins " sk'a u'alix's 
they went. "The our children and are angry" and she deserted 

ta qtEmtstx. 

the her husband. 


The father (of a youth) brought him always food. Then his stepmother 
grew angry. When (the father) gave her to eat she threw the food which 
he had presented to her down. She scolded his son. Then the youth 
grew angry and left. He (went into the woods) without knowing where 
he went. He went on and he tried to shoot a bird. His (arrow) hit a 
Salmon. He heard the Salmon cry. When tlie youth came to the Salmon 
the latter said : "Throw me into the water." The youtli took him and 
threw him into the water. The Salmon jumped (but did not swim right). 
Tlien the Salmon told the youth to look for one of his bones (which was 
missing). At first tlie youth did not find the bone of the nape* of the 
Salmon, but then he found it. He gave it to him and threw him (again) 
into the water. Now he was perfect. Then the Salmon came ashore in 
his canoe. He went down to the canoe. Tlie Salmon told the j'outh to 
lie down and to pull his blanket over his head. "Don't uncover your 
head," said the Salmon "I shall awake you when we come to a town." 
They went and arrived at the town of the birds t'e.K'Lala'tx. They went 
on and arrived at the town of the birds tsutsule'ttsx. They were singing 
all the time. The Salmon said : " Wlien you like a country you must 
tell me." Now he liked this one. They landed and went to the house 
of the bird. Then they went on and paddled. They arrived at the house 
of the bird qulExlele'ts, and she was a pretty woman. They left and 
went on. Tliey arrived at a town (where there was) the house of tlie 
bird qoaqoa'os. They went ashore and the youth went into her house. 
He said : "She is pretty," and he married her. The Salmon forbade it 
and said: "Nobody survives who marries tlie bird qoaqoa'os." The 

* This means probably the soul, which is believed to be located iu an egg-shaped bone 
in the nape. 

1895.] ^ ' [Boas.. 

youth, however, went to her and lay down. It got day and he arose. 
He was not dead. They departed for the house of the sqapts. The latter 
said: "A stranger landed." Then they went on and came to the fish 
samij. They landed and the youth said : "This is a good country. Here 
are pretty girls." They avoided the house of the fish t'll. They left her 
and she laughed. Then the youth and the Salmon said : " They are glad 
and make merry in this town. They are laughing." They went on and 
reached the house of the k-'apai' salmon. Her town was bad. They 
went on to the house of the silver salmon and landed. They looked about 
and the youth and the salmon saw the place where the women went 
bathing. A man was sitting at the bank of the pond. The youth ex- 
changed cloths with him. Then the girls came and bathed. They went 
into the water and the youth washed them, but they recognized him. They 
ran away and cried. They were afraid. Then they returned to the house 
of the fish samL. The youth married her. He thought he had stayed 
away one night, but it was two seasons. The youth had two children. 
Now the salmon made his canoe ready and they went to visit the house of 
the youth's father. They arrived there and found the youth's father sit- 
ting at his salmon weir crying. Then the youth pulled the rope and 
lifted the net. The father recognized his son. He saw him at the salmon 
weir. Then all the people came to the house of the old man. The youth 
told him to clean it. Then he entered the house of his father, and he 
related to all of them : "The salmon desires to have cedarbark." It is 
said that the salmon eat it. (He stayed there with his wife and his chil- 
dren.) Then the (other) children quarreled and fought with them. 
Then she grew angry and deserted her husband. 

8. The Ascent to Heaven. 

NusLOLa'neta. Tx'sisinte'x" wa tsitstsipe'. 

There was a hunting hut at the water. They shot birds. 

Anaik-sto'o x'sgyasqs. Sx'ik*!x"is ti sonx" t'aix. KMx'tislo'o 
He wished to go up. He wished to see the sun that one. He saw 

wunaqs'nq ai, tu L5k"t'aq. SLokoalaya'mktis. 

ducks at the above. He found something supernatural. 

Ix'e'eqsatis, x'tok-sto'ttq. NeetststoLa'aqstis, k'!x"aut(Vo. 

He cured them, he worked on them. He spat on their eyes, they saw. 

Skoa'tstatit x'i Smoq'oa'ns. Leptsotsto'o. K'lx'istoo ti sa'axist 
They called him the Smoq'oa'ns. He returned. He saw him the younger brother 

ta koxld'lemx-'au'tx. Axsa'nix'tostu'o ta manau'tx. "KMxiitsts, 
the their country. He made know the their father. "I saw him, 

kMx'litsts ta q'oale'mts." " Alatsikmu'ks ti nu'kLootsE'mno," 
I saw him the my elder brother." " Why you the liar you," 

tso'tkuts ta manau'tx ul tsenL. " Ts'ak'o'liwa wa 

said the their father to him. " I speak the truth 

SL'iu^kts'awa." "Wa iLLana'' oqxe^x." "A^xko ai'ots sk'a 
what I said." "Go call him." "Not he says and 



[March 1, 



he comes, 

Anoai^k'kx sk"a 
He will and 

he wished 





ts'e'k'ims k'a 
dirty and 

he goes 





he goes 





their father 




their honse. 

He invited the people 

Qotsanaqto^o tu 

They washed the 



sa m, aar s wu 

They were ready 

poLskto'o. Ostxs. 
he came. He entered. 

He informed them 

sLdkoa^las anoaik'sto'o sk*a tElaxo'im 

he found something supernatural he wished and he showed 

x'sto smatE'mx'stx 
his people 


wunlsti's tu 

killed with the 

his supernatural power 




Sk'a enate's to 
And he give them to the 

sta apso'Lstx 
those of liis town 



their meat. 

That is all. 

Anoai'k stuts sk*a le'ptuts ul ta 
He wished and returned to the 

sonx" t aix*. 
sun that one. 

Koanatskto'o ta sa'axistx snuL'api'k-skoalu'ts. 
He cried the younger brother he wished to accompany 



He did not want him 

to go. 

Ai'lutstx, axko tsnuk-sa'axaLE'ms. Siuta'namEluts, taia'mk-- 
He left him, not he returned. He became supernatural he threw 

tiskto'o wa tsilstsipe' ats sk"a sipxMioa'ts wa 
them down the birds and he made happy the 

us Indians. 


(Two brothers built) a hut for hunting (birds) on a river. They shot 
birds. One of them wished to go up to see the sun. (When he reached 
the sky) he saw ducks. He found something supernatural. (The ducks 
•werie blind.) He cured them by spitting on their eyes. Then they 
regained their eyesight. They called him Smoq'oa'ns. He returned and 
his younger brother saw him. He went and told their father : "I saw my 
elder brother." "Why do you tell such lies," replied the father. "I 
speak the truth." "Then call him." " He says he will not come. He 
does not want to enter a dirty room. He will come and enter when it is 
clean." The father invited the people and they cleaned the house. The 
people washed themselves. When they were ready he came. He entered. 
He informed them how he had found a supernatural helper. He wished 
to show his power to them and killed many ducks by the aid of his super- 
natural helper, and he gave the meat to the people of his town. That is 
all. Then he wished to return to the sun. His younger brother cried 
and wished to accompany him, but he did not want him to go. He left 
him and did not return. He became a supernatural being. He threw 
down birds and made us Indians happy. 




The Varying Ratio between Gold and Silver. 

By Frederick Prime. 

Mr. Prime made some remarks on the varying ratio between gold and 
silver. Between 1687 and 1861 the ratio of silver to gold varied between 
1 : 14.14 (1760) and 1 : 16.25 (1813). But in 1862 silver reached a value 
from which there has been a steady decrease, with slight exceptions, up 
to the present time. The ratio for this period * has been as follows : 


1862 1 


: 15.43 



















. 17.94 

1863 1 


1864 1 


1865 1 


1866 1 


1867 1 


1868 1 


1869 1 

: 19.41 

1870 1 


1871 1 : 


1872 1 

1873 1 


1874 1 


1875 1 ■ 


1876 1 


1877 1 : 


The percentage of production of the two metals since 1831 is as follows,, 
given in values, not in weights : 


























1871 75 

58 5 



























In consequence of the demonetization of silver and the consequent in- 
creased demand for gold, which has increased in value judging by its 
increased purchasing power, the output of the world in this metal has 
increased materially. 

In 1891 there were produced.. .196,586 kilograms = $130,450,000 
In 1893 " " ...236,574 " = 157,228,100 

♦Twenty -second Annual Repiort Director of the Mint, 1894. 


Slade.] 50 [March 15, 

Africa has most markedly increased its output, and in 1893 became the 
third producing portion of the world, the output being almost entirely in 
South Africa. While in 1891 Africa produced 23,687 kilograms = $15,- 
743,400, this had increased, in 1893, to 44,096 kilograms = $29,305,800, 
and it is probable this output will be greatly increased in the near future. 

Of the remaining large gold-producing countries the output for 1893 is 
estimated to be as follows : 

United States 54,100 kilograms = $35,955,000 

Australia 53,698 " = 35.688,600 

Russia 39,805 " = 26,454,400 

It is thus apparent that Africa has surpassed Russia. 

With the greatly increased output of gold, the fields known to be rich 
but still undeveloped (South Africa, Australia and South America), and 
with the downward tendency of silver, it seems impossible that bi-metal- 
lism can exist for any length of time in the near future, even by the con- 
sent of all the nations of the globe. Gold may be made the circulating 
medium, or silver may be ; but with the continual disparity in value 
between the two metals, which is not constant but varying daily, the two 
can only coexist in subsidiary coinage, where they are mere tokens. 

The fact is frequently lost sight of that gold and silver are only articles 
•of merchandise like wheat, cotton or iron, and intrinsically are of less 
lvalue than any of the three latter. A coin only means that the country 
whose stamp it bears guarantees it to be of a certain weight and to con- 
tain a certain percentage of gold or silver. Common agreement has 
made these articles of merchandise the means of paying balances, as a 
matter of convenience. 

The Significance of tJie Jugal Arch. 

By Daniel Denison Slade. 

( Read before the American Philosophical Society, March 15, 1895. ) 

It is difficult to explain why that portion of the mammalian cranium 
which presents so prominent and striking a feature, even to the most 
careless observer, as does the jugal or zj^gomatic arch, should not have 
been considered worthy of more extended scientific notice than it has re- 
ceived. Cuvier, in his admirable treatise, Anatomie Comparee, seems 
to have been the only writer, familiar to us, who has comprised the 
anatomy and physiology of this region in any lengthy description. 

While the present paper does not pretend to have, by any means, ex- 
hausted the subject, it claims to have brought together for the first time, 
under the light of modern science, a concise statement of the chief 
modifications which the arch undergoes in the various orders of the Mam- 

1895.] ^l [Slade. 

This osseous bridge connecting the lateral regions of the cranium with 
those of the face is often composed of three bones, the malar or jugal in 
the centre, flanked on either side by the zygomatic process of the squa- 
mosal and by the malar process of the maxilla. Again, it may be reduced 
to two, the process of the squamosal and the jugal, or the process of the 
squamosal and the postorbital process of the frontal. The number of 
bones present depends upon the advanced or receding position occupied 
by the orbit, also upon the position held by the articulation of the mandi- 
ble in relation to the orbital cavity, whether this be above, below, or on a 
level with the latter. Although the arch in certain cases is imperfect, it 
can rarely be said to be entirely absent. 

The strength of the jugal arch, the most important factor in its exist- 
ence, depends upon its line of direction, whether this be straight or curved, 
and upon the amount and manner of this curvature ; upon the number, 
size, extent of surface, and mode of union of its component bones. These, 
in their turn, are correlated with the articulation of the lower jaw, and 
with the amount of surface presented by the ascending ramus ; with the 
neighboring fossae, crests and processes ; with the dental series, and neces- 
sarily with the muscles concerned in mastication, varied as these are in 
their action. 

The jugal arch, as it exists in the Carnivora, offers an instructive example 
of the various points to be considered in its morphology. In the tiger, for 
example, the arch, composed of three bones — the squamosal, malar and 
maxilla — presents an extraordinary horizontal curvature, thereby vastly 
increasing its expanse, giving great width to the temporal muscle, which 
taking its origin from the largely expanded surface of the parietal, and 
from the occipital-sagittal crest, passes forwards and downwards, to be 
inserted into the high, wide, oblique, coronoid process of the mandible. 
This increase in length of the arch, due to the great horizontal curvature, 
is also seconded by the advanced position of the orbit upon the skull, 
and by its height above the level of the articulation of the mandible. 

The vertical curvature of the arch, with the convexity above and con- 
cavity below, denotes increased power of resistance to the strain produced 
by the muscular fibres of the masseter, which, springing from the under 
side of the arch, are carried obliquely backwards and downwards to be 
inserted into the deeply grooved ascending ramus. The action of the 
pterygoids, which is similar to that of the masseter, is also relatively 
powerful. The fibres rising from the pterygoid fossae and plates are 
inserted into the inside of the angular portion of the lower jaw, and into 
the neck of the condyle. The suture by which the processes of the squa- 
mosal and jugal are joined, extends very obliquely through a greater por- 
tion of the arch ; this obliquity imparting much strength to the bony 
structure, and thereby enabling it to resist the upward pressure. 

The convex surface of the transverse condyle of the mandible, received 
into the deeply grooved glenoid cavity, forms the hinge-^like articulation 
fitted for the vertical action of the jaw, and which is necessary for the pre- 

Slade.] ^^ [March 15, 

hension, tearing and division of the flesli by means of the characteristic 

In the Edentata, on the other hand, the cranium of the great ant-eater 
exhibits a jugal arch whicli is the extreme opposite of that which has been 
thus partially described. Here, it is very incomplete, consisting of a short 
styliform process given off by a very rudimentary jugal, and of an ex- 
tremely small tuberous zygomatic process from the squamosal, no union 
being formed between the two. There is no postorbital procebs of the 
frontal, and no separation between the orbital and temporal fossis. Under 
these circumstanceie, the muscular development concerned in the prepara- 
tion of the food is very feeble, correlated as it is with the entire absence of 
teeth and any necessity for mastication. 

Between these two extreme modifications, there are many intermediate 
forms of this arch, as will become evident as we study them in the different 
orders of the Mammalia. 

In the PiiiMATES the arch is composed of two bones, the squamosal and 
malar, which are joined by a serrated suture which inclines downwards 
and backwards ; the amount of inclination being modified in the various 
groups of this order. The strength and curvature of the arch also widely 
vary, as does also the extent to which the various crests and ridges for 
muscular attachment are developed. In man, the arch is generally 
slender, slightly curved in its horizontal axis, and presents a very 
moderate convexity upwards in its vertical curvature. Owing to the slight 
horizontal curvature outwards, the temporal fossa is relatively shallow, 
consequently allowing but little development of the temporal muscle. 
This condition, however, is subject to modifications in the various races of 
man. The maximum breadth of the cranium is at the jugal arches, and it 
is at these points that craniologists now take the bizygomatic diameter of 
the face. 

Humphrey, in his Human Skeleton, in speaking of this arch, says : 
"The upper surface of its root forms a smooth channel for play of the 
temporal muscle. In the negro the greater width of this channel throws 
out the zygoma into stronger relief, and added to the flatness of the squa- 
mosal portion, affords more space for the temporal muscle." This gen- 
eral statement is not confirmed by any cranial measurements, neither does 
Mr. Humphrey state what he means by a negro. Probably he intended, 
as in common parlance, to designate the African, although this designa- 
tion is ambiguous, as it is well known that the crania of the ditlerent 
tribes of Africa differ very essentially in their general formation, as well 
as in their special cranial measurements. 

Although the cephalic measurements of Broca, Topinard, and others 
allow a slight increase in the horizontal curvature of the arch iu certain 
instances, which signify a greater development of the temporal muscle, as 
well as a more extended surface for the attachment of the masseter, yet, 
as Topinard remarks, in speaking of the bizygomatic diameter, " This 
measurement by itself often presents difficulties, purely accidental and 

1895.] ^'^ [Slade. 

local, and entirely apart from the general type. Thus, in every race, 
cases occur in which the zygomatic process of the squamosal, instead of 
joining directly with the malar, hends outwards and then resumes the 
general characteristic direction of the arch, whetlier this be straight or 
gently curved. The greatest width under tlie circumstances falls upon 
the summit of the bend, which causes the measurement to be unduly 

As a result of the measurements taken upon the crania of the Africans 
in the collection of the Peabody Museum, and of the Harvard medical 
school, there was a slight iacrease in the bizygomatic breadth over those 
of other mixed European skulls. But no dependence should be put in 
such measurements, for although in one collection the crania were classi- 
fied in general as African, nothing was known of their history, and still 
less of those with which they were compared. 

Tables given by Topinard, Flower, and others, of the bizygomatic 
breadth compared with the total length of the face, apparently do not sup- 
port the statement of Mr. Humphrey. A more satisfactory method of 
ascertaining the truth of the point in question would be to obtain by meas- 
urement the actual width of the groove in the upper surface of the poste- 
rior root of the zygoma, of the African skull and compare this with that of 
other races. This can be properly effected by taking first the bizygomatic 
breadth and then the bisquamosal at the most prominent point on the 
line of suture between the squamosal and alisphenoid ; the difference 
between the measurements would give the breadth of groove. 

Cuvier reminds us that the size of the temporal fossa and its muscle 
have close relation with the age of the animal. In the young, the brain 
and its case are developed, but the jaws are small, and the forces which 
move them are wanting in energy. But with age these last are developed, 
while the intellectual powers constantly diminish. In civilized man, the 
equilibrium is maintained between the growth of the brain-case, the intel- 
lectual powers and the masticatory organs. Can any relation, however 
remote, be traced between the developed masticatory powers of the unciv- 
ilized negro, and the flattened squamosal of his brain case as described by 
Mr. Humphrey? 

The Anthropomorpha have strong jugal arches, longer than in man, 
and presenting marked horizontal and vertical curvatures. Although, 
strictly speaking, it is composed of only two bones — the zygomatic pro- 
cess of the squamosal and the jugal, this last rests upon a process of the 
maxilla so much developed, that in many cases it might be rightfully con- 
sidered as entering into the formation of the arch. The suture which 
joins the squamosal and jugal is long and serrated, its great inclination 
downwards and backwards vastly increasing the strength of the parts as 
also the power of resistance. 

In the gorilla, the arch is relatively broader and more developed than in 
the other higher apes. The process of the squamosal presents a sudden 
vertical convexity upon its upper border, at a point corresponding to the 

Slade.] *^^ [March 15, 

junction of the anterior transverse root, the remaining portion of the 
arch being nearly of the same width. The breadth of the channel for the 
play of the temporal muscle is proportionally large. The entire structure 
of the arch, especially in its horizontal-vertical curvatures, exhibits enor- 
mous strength. In the adult male all the cranial ridges attain their maxi- 
mum size, thus presenting a largely increased surface for the origin of the 
temporal muscle, while the relative greater breadth of the ascending ramus 
of the mandible and the increased width of the pterygoid fossae are cor- 
related with a corresponding development of the masseter and pterygoid. 
The long and massive canines have reference to the powerful action of 
the last named muscles, while their use has a sexual relation. The glenoid 
cavity is transversely broader than in man, and more shallow, its anterior 
boundary, formed by the anterior root of the zygoma, being scarcely 
developed, thus allowing greater freedom for the antero-posterior move- 
ment of the articulation of the mandible. 

In comparing the skull of the male gorilla with that of man, we shall 
find that the arch of tHe former is not only vastly stronger, but the bones 
present a different form and proportions. The squamosal is as long and 
vertically as wide as the malar portion of the arch, while its upper border 
rises into an angular form, constituting a very marked convexity, no trace 
of which is to be seen in man. In the latter the jugal portion of the arch 
decreases in depth after leaving the body of the bone, whereas in the 
gorilla it continues of the same depth and is relatively longer. 

In the orang, the horizontal curvature of the arch is greatly produced, 
and strongly developed at the portion corresponding to the malar-squa- 
mosal suture. Its inferior border is flattened and thickened. The vertical 
curvature, however, is not so great, while the channel for the temporal 
muscle is relatively wider than it is in the gorilla. The crests and ridges 
of the cranium, especially in the male, express the great energy of this 
muscle, although the general outline of the arch is far lecS massive than 
in the latter ape. 

The jugal arch of the chimpanzee presents much resemblance to that 
of man, being narrow, and with slight curvature, either horizontal or 
vertical. The malar is anteriorly flatter, and its orbital process is longer 
and narrower at its base. The extent of surface for the development of 
the temporal muscle is greater than in man, and the width of the channel 
relatively increased. 

The slight modifications observed in the arch of the gibbons, exhibit a 
distinct tendency to those shown in the lower types of the Simiadre. In 
the old-world monkeys, the arch takes on a sigmoidal curvature, thus pre- 
senting upon its superior border, a slight convexity behind and a corre- 
sponding concavity anteriorly. The extent of this curvature varies in the 
different groups. In the new-world monkeys, the postglenoid process of 
tiie squamosal is largely increased, while the remarkable extent of the 
ascending portion of the ramus, both vertical and antero-posterior, has 




reference in the howlers to the great development of the vocal organs, 
rather than to any unusual energy of the masticatory muscles. 

In the Lemuroidea, the family of the common lemurs have an arch which 
in most cases is nearly straight, narrow, long, and distinguished by a 
malar-squamosal suture, which is almost horizontal in direction, the 
amount of the overlapping of the jugal by the lengthened process of the 
squamosal being exceptional, while in some cases the jugal is partially 
underlapped by a process of the maxillary. 

As regards the Carnivora, the general characteristics presented by the 
arch and the adjacent regions have already been considered, when taking 
that of the tiger as a typical illustration of their morphology. The order 
of the Carnivora is divided into two suborders, the true or fissiped and the 
pinniped (the latter being organized mainly for an aquatic life). The true 
Carnivora may be classified under three sections — ^luroidea, Arctoidea 
and Cynoidea. The arch in the families comprehended under the first of 
these sections presents no modifications specially different from those 
oflered by the Felidae, unless we may except the Hysenidae, in which the 
jugal arch is extremely wide and strong and the horizontal curvature very 
great. The postorbital of botli frontal and jugal are largely developed, 
approximating each other, while the sagittal crest is high, giving large 
attachment to the very powerful muscle of the temporal. The ascending 
rami of the mandible present the corresponding extent of surface for 
muscular attachments. In the section Arctoidea, the family Ursidte 
present an arch which is longer, and of which the horizontal curvature is 
greater than that of the Felidoe, while the jugal-squamosal suture is more 
oblique, and the entire bridge much less developed. In the Musteli'dte, 
the upward vertical curvature is large, but the entire arch is relatively 

In the Cynoidea, the strength and curves of the arch occupy a position 
midway between those of the other sections, being more developed than 

Slade.] ^^ [March 15, 

those of the Arctoidea, but exhibiting less strength than those of the 

The suborder Pinnipedia is easily separated into three families — the 
Otaridpe, the Trichecidfe and the Phocidse. The first of these bear genetic 
relationship to the Ursidoe in many of the cranial characters. The arch 
is composed, as in the Fissipedia, of three bones. Of these, the jugal 
presents a wide backward progressing process, which divides into a short 
upper and a long lower one, receiving and supporting the extended pro- 
cess of the squamosal, as in a mortise. 

The postorbital processes are well developed. A more or less distinctly 
marked sagittal crest exists with an extended surface for muscular attach- 
ment. The coronoid surface of the ascending ramus is wide, but not pro- 
duced above the level of the arch. 

In the Trichecidfe, of which Trichecus is the single genus, the maxilla 
enters largely into the formation of the arch, the jugal is shorter and 
broader than it is in the other ftimilies, and nearly quadrangular, sending 
up a prolonged postorbital process from its superior border, while pos- 
teriorly its inferior border underlies the process of the squamosal. The 
condylar surface of the mandible points backwards, while those of the 
rounded coronoids are scarcely lifted above the dental series. 

In the Phocidfe, the composition of the arch does not differ essentially 
from that of the Otaridne, although it is relatively much weaker. There 
are no postorbital processes, and the sagittal crest is less distinctly 
marked. The angle of the mandible is not inflected. 

The Chiroptera are divisible into the suborders Maaachiroptera and 
Microchiroptera. The family Pteropodidoe includes all the characters of 
the first of these suborders. In Pteropus, the arch is long and relatively 
slender, and composed of three bones, of which the jugal is splint-like, 
adliering to the outer and under surface of both the squamosal and maxilla, 
which meet above it and form the span. 

The postorbilals of the frontal and jugal not unfrequently meet, and 
thus complete the bony orbit. There are strongly developed crests, both 
occipital and sagittal. The coronoid surface of the mandible is fitted for 
large muscular attachments, being high, broad and recurved. The angle 
is flattened and rounded, presenting an extended surface. Of the six 
f\imilies into which the suborder Microcliiroptera is divided, the Vesper- 
tilionidse may be taken as the typical representatives. The arch is slender 
and complete throughout the entire group, except in some of the Phylosto- 
midaj, in whom it is entirely wanting. 

When present, the horizontal curvature is large, and the vertical also 
considerable, the convexity being upwards. In its conformation, it is 
similar to that of the Pteropodida;. The orbit is incomplete, the temporal 
fossae are relatively large. The parietal crest is but slightly developed. 
The mandible is stout and high at the symphysis. The ascending ramus 
is compressed, and bears a coronoid process which is strongly indented for 
muscular attachment. Immediately below the condyle, is a backward 

1895.] ^' [Slade. 

projecting process. The dental series in this suborder resembles that of 
the Insectivora, the molars being cuspid. Adopting the classification of 
the highest authorities, and notably that of Dr. Dobson, the Insectivora 
may be divided into two suborders, the Dermoptera and the Insectivora 
Vera. Accepting the above classification, the Insectivora, so far as con- 
cerns the jugal arch, may be brought into three groups : 

1. Those in which the arch is complete and well developed, comprising 
the Tupaidaj, Macroscelidae, Rhynchocyonidae, Galeopithecidse. 

2. Those in which the arch is complete but more or less feebly devel- 
oped, comprising the Erinaceidoe, Talpidse, Chrysochloridse. 

3. Those in which the arch is partially or wholly deficient, comprising 
the Centetidfe, Potamogalidse, Solenodoutidos, Soricidse. 

The Tupaia may be taken as a typical form of the first group. The 
jugal arch is well developed, a postorbital process from the frontal meet- 
ing a corresponding one from the malar, thus forming a complete bony 
orbital ring. The malar has a large longitudinal oval vacuity, which, 
although unique in this case, when taken with similar vacuities in the pal- 
ate of this genus, as also In some of the other Insectivora, points unmis- 
takably to the Marsupialia. 

The horizontal curvature of the arch is sufficient to counteract any 
inherent weakness due to the vertical curvature with its convexity down- 
wards. The temporal fossa is moderately extended, while the coronoid 
surface of the mandible presents a large backward projecting surface, ris- 
ing high above the transversely produced condyle. 

In the second group, where the arch, although complete, is for the most 
part weak, the cranium presents marked modifications. In Erinaceus and 
Gymnura the arch is formed mostly by the processes of the squamosal and 
maxilla which join, while the malar is very small and occupies in a splint- 
like form the outer and under sides of the centre of the arch. There are 
no traces of any postorbital processes. The temporal fossa is deep and 
extended, while additional surface is afforded for the temporal muscle by 
the prominence of the sagittal and occipital crests. The ascending ramus 
of the mandible, with its broad, concave, coronoid surface, and the devel- 
opment of the pterygoid fossse, denote increased masticatory powers, in 
spite of the apparent weakness of the buttress. 

In the Talpidse, certainly in all of the truly fossorial of the family, the 
jugal arch is slender, and exhibits no distinct malar bone, no occipital or 
sagittal crests, and no postorbital processes. 

The mandible is long, and the vertical portion presents a moderately 
extended coronoid surface with a small transverse condyle. The infra- 
orbital foramen is of great size, being a very slender osseous arch which 
serves for the transmission of the large intraorbital branch of the trifa- 
cial, affording the necessary svipply of sensory nerves to the muzzle. 

In the Chrysochloridse, which in the general shape of the skull present 
modifications different from all other Insectivora, the jugal arch is in some 
species so expanded vertically, that, as Dr. Dobson remarks, "their upper 


Slade.] ^^ [March 15, 

margins rise above the level of the cranium, giving additional origin to 
the large temporal muscles." There is no postorbital process given oflF 
either by the frontal or zygomatic arch. As regards the mandible, the 
coronoid process is little elevated, and in some species is nearly level with 
the transversely extended condyle. 

In the third group the arch is incomplete, and in one instance, at least, 
may be described as entirely absent. In the CentetidsE, the skull is long 
and narrow, and marked by largely developed occipital and sagittal 
crests which serve as attachments for muscles of temporal origin. The 
zygomatic processes of the maxilla and squamosal are very short and rudi- 
mentary, while the malar is entirely absent. The temporal fossae are very 
large, and the skull retains nearly the same width at their anterior and 
posterior regions. There is not a trace of a postorbital process. The 
infraorbital foramen is circular and capacious. There are no pterygoid 
fossae. The coronoid process of the mandible is largely developed, its 
inner surface being concave, and its outer surface flattened. The condyle 
is small and circular, while the glenoid surface is transversely concave. 

The other families of this group, with the exception of the Soricidae, agree 
with the Centetidoe in the modifications of the skull that have been 
described. In the Soricidae, the cranium is broadest just behind the glen- 
oid surfaces. There is no jugal arch and no trace of a postorbital pro- 
cess. Frequently there is present a strongly marked lamboidal ridge as 
well as a sagittal crest. There is no pterygoid fossa, but very large vacui- 
ties exist on each side of the basis cranil. The mandible resembles that of 
the Talpidae, although the horizontal ramus is shorter, while the ascend- 
ing one " presents a very large and singularly deep excavation upon its 
internal surface quite characteristic of the genus." The articular surface 
of the condyle looks backwards instead of upwards. The angle of the 
jaw is elongated and thin. The infraorbital is large and bounded pos- 
teriorly by an osseous bar. 

The jugal arch in the Rodentia is always present, and is generally com- 
plete, although it exhibits many modifications in its composition. Three 
bones form the arch, which is straight or slightl}'^ curved horizontally, 
while it almost invariably presents a curvature downwards. The position 
of the jugal therein serves as a determining character in grouping the 
various families of the order. 

The temporal fossa is often small, showing feeble energy in the action 
of the temporal muscle. On the contrary, the pterygoid plates and fossae 
are often largely increased in relation to the enlarged development of the 
muscular insertions. In close connection with these conditions, the coro- 
noid process of the mandible is small and even rudimentary, while the 
parts about the angle are largely expanded. The condyle is little elevated 
and presents, with few exceptions, an anteroposterior articulating surface. 
Postorbital processes of the frontals exist in a few of the families, but in 
no case is there a corresponding process from the arch. The orbit is never 
separated from the temporal fossa. 




la many of the rodents there is present a more or less extensive dilatation 
of the infraorbital foramen, through wliich passes, in addition to the 
nerve, that portion of tlie masseter muscle which has its insertion upon 
the maxilla. This extends around the back of the jugal process of the 
maxilla in a pulley-like manner to an insertion just below the socket of 
the mandibular pra^molar, and thus cooperates with the temporal in 
moving the mandible in a vertical direction. This attachment of a 
head of the masseter is peculiar to the order, and explains the use of 
the vacuity in the maxilla which oftentimes is of vast relative proportions. 

All existing rodents fall into two groups, the Simplicidentata and the 
Duplicidentata. The first embraces the Sciuromorpha, Hystricomorpha, 
Myomorpha, and the second, the Lagomorpha. 

In the Sciuromorpha, the jugal forms the greater part of the arch, ex- 
tending forward to the lachrymal and posteriorly to the glenoid cavity, of 
which it forms the outer wall, and is not supported below by a con- 
tinuation backwards of the process of the maxilla. In the more typical 
forms there is no enlargement of the infraorbital opening, while the 
postorbital processes of the frontals are characteristic of the family 
Sciuridie. The external pterygoid plate is entirely wanting and there is 
no fossa. 

The arch in the Myomorpha is for the most part slender, and the jugal, 
which does not extend far forward, is supported by the continuation below 
of the maxillary process. The zygomatic process of the squamosal is 
short. No postorbital process of frontal exists. The infraorbital opening 
varies. In the family Muridiie, especially in the typical forms, this opening 
is perpendicular, wide above and narrow below, while the lower root of 
the zygomatic process of the maxilla is flattened into a thin perpendicular 
plate. Very much the same condition exists in the Myoxidfe, while in the 
Dipodidse, the foramen is as large as the orbit, is rounded, and has a 

Slade.] t)() [March 15, 

separate canal for the nerve. The malar ascends to the lachrymal in a 
flattened plate. In close connection with these conditions the coronoid 
process of the mandible is small and rudimentary, while the parts around 
the angle of the ramus are much developed. 

In the Hystricomorpha, the arch is stout. The jugal is not supported 
by the continuation of the maxillary process, and generally does not ad- 
vance far forward. The infraorbital vacuity is large and is either trian- 
gular or oval. The coronary process and the condyle are but slightly 
elevated above the dental series. 

In the Chinchillidre, the jugal extends forward to the lachrymal. In the 
Dasyproctidas, Cselogenys is characterized by the extraordinary develop- 
ment of the jugal arch, which presents an enormous vertical curvature, 
two-thirds of the anterior portion of which, constituting the maxilla, is 
hollowed out into a cavity which communicates with the mouth. The 
nerve passes through a separate canal, adjacent to the infraorbital opening. 

The jugal arch in the suborder Duplicidentata is well developed. 

In the family Leporidse, there are large wing-like postorbital processes, 
while the jugal, but feebly supported by the maxillary process, continues 
posteriorly to aid in the formation of the outer side of the glenoid articular 
surface, passing beneath the process of the squamosal. 

The Lagomyidse have no postorbital processes, and the posterior angle 
of the jugal is carried backward nearly to the auditory meatus. The infra- 
orbital opening in the Duplicidentata is of the usual size. The angle of 
the jaw is rounded, and the coronoid process much produced upwards. 

The Ungulata may at the present time be divided into the Ungulata 
vera, including the two suborders, Perissodactyla and Artiodactyla, and 
the Ungulata polydactyla, which comprises the two suborders, Hyracoidea 
and Proboscidea. 

In its morphology, the jugal arch of the Ungulata presents various 
modifications. With few exceptions, two bones alone compose it, the 
squamosal and jugal, which are connected by a suture, the general direc- 
tion of which is horizontal. Both the horizontal and vertical curvatures 
of the arch present considerable variations, as does also its relation to the 
neighboring parts. 

In the Perissodactyla, the family Equidse exhibits an arch, which, 
although relatively slender, is quite exceptional in its arrangement. The 
large and lengthened process of the squamosal not only joins the greatly 
developed postorbital process of the frontal, but passing beyond, forms a 
portion of the inferior and posterior boundary of the orbit. The malar 
spreading largely upon the cheek, sends back a nearly horizontal process 
to join the under surface of the squamosal process above described, while 
the orbit is entirely surrounded by a conspicuous ring of bone, thereby 
clearly determining the bounds between it and the temporal fossa, which 
last is remarkably small. This fossa is bounded above and posteriorly 
by more or less well-developed crests and ridges. The pterygoids are 
slender and delicate, without the presence of any fossa. The glenoid 

1S95.] t)l [Slade. 

surface is much extended transversely, concave from side to side, and 
bounded posteriorly by a prominent postglenoid process. The angle of 
the jaw is much expanded. The condyle is well elevated above the 
molar series, while the coronoid process is long, narrow and slightly re- 

In the Rhinoceridse and Tapiridse, the arch is strongly developed, and 
composed of the squamosal and jugal processes, which are joined at about 
its centre by an oblique suture from above downwards, backwards and 
upwards. In the Tapiridae, the arcli is long, owing to the advanced posi- 
tion of the orbit. There is a small postorbital process, largest in the tapir, 
but the orbital and temporal fossae are continuous. The surface for the 
temporal muscle is extensive. The glenoid fossa presents a transverse 
convex surface to articulate with the corresponding one of the mandible, 
which is not much elevated above the dental series. The coronoid process 
is slender and recurved, while the angle is broad, compressed, somewhat 
rounded and incurved. 

In the Artiodactyla, the arch is slender and is composed of the process 
from the jugal, which passes backwards beneatli the corresponding for- 
ward projecting process of the squamosal, the juncture being by a suture 
nearly horizontal in direction, and longest in the Cervidse. The jugal 
sends up a postorbital process to meet the corresponding descending one 
of the frontal, the suture which unites them being about midway. The 
bony orbit is thus complete, while the jugal is forked posteriorly. The 
temporal region is relatively small. The horizontal curvature of the arch 
is very slight. The glenoid surface is extensive and slightly convex with 
a well-developed postglenoid process. The pterygoids present a large 
surface and are situated nearer the middle line than is the case in the 
Perissodactyla. The condyle is broad and tiat, and the coronoid process 
is long, compressed, and slightly recurved. The angle is rounded and 
much expanded. 

The Tylopoda alone among the Ruminantia have large surfaces with 
crests and ridges for the increased development of the temporal muscle. 
The horizontal curvature of the arch is greater than in the true rumi- 
nants, consequently the temporal fossa is wider and deeper — all in correla- 
tion with the powerful canine teeth. The forked articulation between the 
molar and squamosal is also more strongly marked. 

Among the non-Ruminantia, the family Suidse exhibit an arch in which 
the process of the jugal underlying the squamosal extends back to the 
glenoid fossa — the two bones being connected by a suture, which is ver- 
tical anteriorly for the depth of half the bone, and then horizontal. The 
postorbital process does not meet the frontal, in fact all traces of this are 
lost in Sus scrofa, but in the peccary and Barbaroussa it is quite promi- 
nent. The arch is short owing to the position of the orbit, and both ver- 
tical and horizontal curvatures are considerable. The narrow, transverse 
condylar surface of the mandible, and the small coronoid process with its 



[March 15, 

rounded surface, are but slightly raised above the level of the alveolar 
surface The pterygoid surface is extensive and the fossa deep. 

In the Hippopotamida3, the arch is broad and strong. Its superior bor- 
der presents a marked sigmoid curvature, and the convexity which is 
always posterior, is in this case much shorter in proportion. The tem- 
poral fossfe, as also the surfaces for the muscular insertions, are extensive. 
The pterygoid surface is not so large as in the SuidiB. The glenoid fossa 
is slightly concave, but not bounded externally by a continuation of the 
jugal. The condyles of the mandible are nearly on a level with the 
molars, and the coronoid process is small and recurved. The angle is 
greatly modified for muscular attachment. 

In the Hyracoidea, the arch is composed of three bones, of which the 
jugal is the most important. Resting anteriorly upon the maxilla, the 
jugal sends backwards a process to form the external boundary of the 
glenoid fossa. It also sends upwards a postorbital process to meet a cor- 
responding one from the parietal alone or from the parietal and frontal 
combined, thus completing the bony orbit. Both horizontal and vertical 
curvatures are slight. The surface for the temporal muscle is largely 
developed while the pterygoid fossae are well marked. The ascending 
ramus of the mandible is high, and the angle ia rounded and projects 
very much behind the condyle, which last is wide transversely, and 
rounded on its external border. The coronoid process is small, slightly 
recurved, and not on a level with the condylar surface. 

In the Proboscidea, the arch is straight, slender, and composed of three 
bones. The maxilla forms the interior portion, while the jugal sup- 
ported upon the process of the maxilla, meets that of the squamosal in 
the middle of the arch, and is continued under this as far as the posterior 
root. This modification is unlike that of any other ungulate. There is a 
small postorbital process from the frontal. The temporal surface is exten- 

1805] 63 [Slade. 

sive, and that of the pterygoid considerable. The ascending ramus of the 
mandible is high, and the condyle small and round. The coronoid pro- 
cess is compressed, and but little elevated above the molar series, while 
the angle is thickened and rounded posteriorly. 

The jugal arch in the order of the Cetacea presents some singular modi- 
fications. In the Delphinoidea, the squamosal, frontal and jugal enter 
into its composition. The squamosal sends forward a large, bulky process 
which nearly meets the descending postorbital process of the frontal. 
The jugal is an irregular flat bone, covered by the maxilla, and sends 
back from its anterior and internal border a long and very slender pro- 
cess, curved slightly downwards, to articulate with the short obtuse pro- 
cess of the squamosal, thereby forming the lower boundary of the orbit. 
So far as the relations of the squamosal and frontal are concerned, the 
portion of the arch thus formed is a counterpart of that of the horse : 
although the union of the two bones is much more complete in the latter 
animal. The jugal in the horse is relatively a much larger bone, and 
sends back a well-developed process jvhich underlies that of the squamo- 
sal, with which it is joined by a nearly horizontal suture, thus forming a 
strong suborbital bony wall. The delicate character of the suborbital 
process of the jugal, and its union with the squamosal in the Delphinoidea, 
render it difficult at first sight to determine its relation to the arch, and 
yet when compared with that of the horse, its homological character can- 
not be disputed. 

In the Balfenoidea, much the same conditions are presented, except that 
the suborbital process of the jugal is both stronger and more curved. 
The small capacity of the temporal region, as well as the limited extent 
of the arch in the Cetacea, are correlated with the modifications presented 
by the mandible, in which the condylar surface is small, and looks 
directly backwards. There is no ascending ramus, and the coronoid pro- 
cess is quite rudimentary — all of which conditions are in direct relation 
to the nature of the food, and absence of the masticatory movements. 

In the Sirenia, the arch is greatly developed, being composed of the 
squamosal and the jugal. The former of these is much thickened and 
presents upon its external face a smooth, convex surface. In the Manatus, 
this process of the squamosal rests loosely upon the process of the malar, 
which, underlying it, extends back as far as the glenoid, having first 
formed a rim whi-ch is both suborbital and postorbital, besides sending a 
broad plate downwards and backwards, thereby greatly increasing the 
vertical breadth. The orbital fossa is separated almost completely from 
the temporal by a bony partition. The surface for the muscular attach- 
ments, both of the temporal and masseter, are extensive, while the ptery- 
goid plates and groove are relatively enlarged. The vertical curvature of 
the arch is great, but the horizontal is inconsiderable. The ascending ramus 
of the mandible is broad, compressed, with rounded angle and sur- 
mounted by an obliquely placed, small convex condyle, much raised 
above the molar series. The coronary surface is broad, directed forwards, 
and but slightly elevated above the condyle. 

Slade.] ^* [March 15, 

la the Dugong, the arch is much less massive. There is no postorbital 
process from the jugal, aad consequently no separation of the orbital and 
temporal fossae by a bony orbit. The coronoid process of mandible looks 

Althougli the horizontal curvature of the arch is very slight in both 
genera of the Sirenia, the temporal fossae are deepened and extended, con- 
ditions due to the walls of the cranium being compressed in a lateral direc- 
tion, which materially increases the extent of surface for muscular attach- 
ment and development. 

In the order Edentata, the jugal arch also offers unusual modifications. 
In the Myrmecophagidae, it is very incomplete, being composed of the 
proximal end of the jugal, articulating with the narrow projecting process 
of the maxilla, and a very rudimentary fragment of the squamosal. These 
separate portions, however, do not meet, in fact they are widely separated. 
There is no boundary between the orbital and temporal fossae, the latter 
being comparatively shallow. The glenoid fossa is a slight cavity running 
antero-posteriorly, and well adapted to the pointed, backward projecting 
condyles of the mandible, whose long straight horizontal rami present 
neither coronoid process nor angle. In Cycloturus, the mandible is some- 
what arched, and presents a well-marked angular process, as well as a 
coronoid surface slightly recurved. 

In the Brady podidae, containing the two forms, Bradypus and Choice - 
pus, the arch is imperfect, consisting of the jugal, which is narrow at its 
articulation with the lachrymal and maxilla, but which widening out into 
a broad compressed plate, terminates posteriorly in two processes, the 
upper pointing backwards and upwards, while the lower looks downwards 
and backwards. The straight process of the squamosal, although fairly 
developed, fails to meet either of those of the jugal. There is a post- 
orbital process of the frontal, which is best marked in Choloepus. The 
glenoid is shallow and narrow from side to side. The mandible, widest 
in Choloepus, develops a rounded convex condylar surface, well raised 
up from the dental series, while the coronoid surface is large and 
recurved. The rounded angular process projects backwards to a con- 
siderable extent. The symphysis in both forms is solidified, while in 
Cholcepus it projects forwards into a spout-like process. The temporal 
surface for muscular attachment is large, as also are the pterygoid plates. 

In the Dasypodidae, the arch is complete, and in its formation the jugal 
largely enters. This bone extends from the lachrymal and frontal to the 
process of the squamosal, the anterior third of which it underlies. There 
is no postorbital process of the frontal. The glenoid presents a broad, 
slightly convex, transverse surface. The pterygoids are small. The 
mandible has a high ascending ramus, the condyle is transverse and above 
the alveoli, while the coronoid surface is large and the angle broad and 

In the Manid;ie, the arch is incomplete, owing to the absence of the 
malar, which if present would occupy almost the exact centre of the arch, 

1895.] t)0 [Slade. 

the length of the squamosal process and that of the maxilla being nearly 
equal on either side. The temporal and orbital fossie form one depression 
in the side of the skull. The rami of the mandible are slender and straight 
and without teeth, angle, or coronoid process. The condj'le is not raised 
above the level of the remainder of the ramus. 

In the Orycteropidse, the arch is complete, and the horizontal curvature 
is very slight. The postorbital process is well-developed. The mandible 
rises high posteriorly, with a coronoid slightly recurved, and with an 
ascending pointed process on the angular edge below the condyle. 

In the Marsupialia, the jugal arch is always complete, and composed of 
the jugal, resting on the maxilla and squamosal, the first extending from 
the lachrymal anteriorly to the glenoid fossa posteriorly, of which it forms 
the external wall. The process of the squamosal passes above the jugal, 
being united to it by an almost horizontal suture. The horizontal and 
vertical curvatures of the arch are considerable, and the space for both 
temporal and masseter muscular insertions is extensive. The various 
ridges and crests are large, especially in the Dasyuridaj and Didelphida;. 
The postorbital of the frontal is present as a rule, although in most forms 
inconsiderably developed. The ascending ramus of the mandible is less 
elevated than in several of the orders of the Mammalia. The condyle is 
but little raised above the molar series. The masseteric fossa is extremely 
projected at its lower external border, and the mandible, with one excep- 
tion, has an inverted border to the angle. 

In the Monetremata, the Echidnidse possess an arch in wiiicli the squa- 
mosal is compressed, and sends forward a slender straight process to join 
the corresponding slight shaft-like process of the jugal. The horizontal 
curvature is extremely small. 

In the Ornithorynchidse, the arch is made up of the malar resting upon 
a process of the maxilla, which, passing straight backwards, unites with 
the squamosal process that rises far back on the sides of the cranium. 
While the mandible of the Echidna has but the rudiments of the parts 
which usually enter into its formation, that of the Ornithorynchus is 
more fully developed in relation to the attachment of the horny teeth. 

In studying the significance of the jugal arch according as this portion 
of the mammalian cranium has been presented to us in the preceding 
pages, while there are modifications in certain groups which are somewhat 
difficult of explanation, we shall find that the general laws which govern 
its morphology may be satisfactorily determined. These laws, concisely- 
speaking, are, that the development of the arch, as shown by the number 
of the bones, by the degree and the ntimber of the curvatures, by its rela- 
tion to the orbit and articulation of the mandible, as well as to other 
neighboring parts, and by the amount of surface presented for muscular 
insertion, all depend upon the energy and character of the masticatory 
muscles. That these in turn depend upon, and are closely correlated with 
the habits and environment of the animal. 

The above laws are very clearly exhibited in the Carnivcra and in the 


Slade.] ^^ IMarch 15, 

Ungulata. In the Perissodactyla, the sagittal crest, ridges and extensive 
parietal surface are correlated with increased insertions of the temporal, 
while the large, strong and complicated arch has equal reference to a 
powerful masseter. So in the Artiodactyla, especially in the Ruminantia, 
the diminished surface for the temporal, and the smaller, weaker arch, 
both denote lessened energy in the above muscles, while the enlarged 
pterygoid muscular insertions show that the required action has been pro- 
vided in another direction. As Prof. Cope has shown, " Forms which 
move the lower jaw transversely have the temporal muscles inversely as 
the extent of the lateral excursions of the jaw. Hence these have a 
diminished size in sucli forms as the ruminants, and are widely separated." 

The singular fact that the Tylopoda alone of the selenodont Artiodactyla 
possess the sagittal crest, is explained by Prof. Cope, by the presence of 
canine teeth, which are used as weapons of offense and defense, and 
which demand large development of the temporal muscles. 

The energy of the action of these muscles has reference to the position 
of the dental series. In the primitive Mammalia, as Cope shows, a con- 
siderable portion of the molar series is below and posterior to the vertical 
line of the orbit, and this condition has been preserved in the Rodentia 
and Proboscidia, forms which have the proal mastication. But in those 
which have lateral movements of the jaw, the molar series has gradually 
moved forwards. The camel alone retains the primitive condition. 

The bunodont Artiodactyla, as the Dicotylidae, have the molar series 
posterior to the orbit ; those with lateral movement of the jaw, the Suidae, 
have them more anterior. 

In the relation of the arch to the orbit, it is obvious that the position of 
this last must exert its influence upon the strength of the arch. When the 
orbit is above or below the articulation a longer and consequently a 
weaker arch is demanded, than when it is on a level with it. The same 
may be said when the orbit occupies an anterior rather than a posterior 
position upon the cranium. A comparison of the crania of the Tapiridae 
with those ol the Suidse will corroborate this fact. 

Then again the union of the bones by suture imparts a degree of 
elasticity to the arcli which must serve to disperse over a given space the 
effects of shocks and blows, which might under other circumstances 
prove injurious. 

We have already noted the peculiar vertical curvature of the arch down- 
wards in the Rodentia. This is a decided manifestation of weakness, and 
is compensated in some of the families by the unusual arrangement made 
in the distribution of the muscular insertions of the masseter through the 
infraorbital opening, by which increased energy is imparted to the powers 
of mastication, and whereby the action of the mandible is rendered equal 
to the demand upon its efforts. 

Where this does not exist, it is evident that the strength of the arch is 
still sufficient for the antero-posterior movement of tlie articulation so 
peculiar to the Rodentia and so characteristic of the act of gnawing. The 

1895.] ^* [DuBois. 

ascending ramus of the mandible diflers according to the food. Elevated 
in the Leporidae, it is short in the Sciuridae, and still shorter in the 
Muridoe. In the first, the coronoid projects but slightly, is near the con- 
dyle and far distant from the molar series, while the angle is broad and 
well rounded. 

In the other two families, the coronoid is feeble, pointed and placed at 
equal distances between the condyle and the last molar ; thus the masseter 
does not possess a leverage as advantageous as in the Leporidae. This 
muscle, however, in the rats has its maxillary attachments much developed, 
while few fibres spring from the arch. 

It has been implied that modifications of the arch are due to variation 
as brought about by the effects of increased Use and Disuse, aided by the 
influences commonly attributed to Natural Selection. To what extent 
these laws have been carried since the earliest records of mammalian life, 
it would be useless to inquire, as palaeontology afibrds us little or no evi- 
dence. They certainly cannot have escaped those which govern Hered- 
ity. In the Carnivora, for example, the arch remains essentially the 
same as it did in the days of the Creodonta, the ancestors of the cats ; 
and similar conditions undoubtedly apply to other groups, so far as our 
scanty knowledge extends. We must await farther developments for the 
solution of this as well as of other even more important problems. 

A Matter of Priority. 

By Patterson DuBois. 

{Read before the American Philosophical Society, April 5, 1S95.) 

It is reported that at a meeting of the Royal Society held June 13, 1894, 
Mr. J. W. Swan presented a number of specimens of leaves of gold of 
extreme thinness which had been prepared by the process of electro- 
deposition. Mr. Swan's idea appears to have been to produce gold leaf 
by electro-chemical instead of mechanical means. The process is briefly 
described as follows : 

" The leaves were prepared by depositing a thin film of gold on a 
highly polished and extremely thin electro-copper deposit. The copper 
was then dissolved by perchloride of iron, leaving the gold in a very 
attenuated condition. The leaves were approximately foui-millionths of 
an inch thick, and some of them mounted on glass showed the transpar- 
ency of gold very perfectly when a lighted lamp was looked at through 

Within a few weeks past I, myself, observed an item going the rounds 
of the public press in reference to this so-called Swan process. We have 

DuBois.] ^^ [April 5, 

no right to say that the process described by Mr. Swan is not entirely 
original with him. It is proper, however, to call the attention of the 
American Philosophical Society to the following facts. 

At a meeting of this Society held February 16, 1877, William E. Du- 
Bois, then Assayer of the United States Mint in this city, and a member 
of this Society, made a brief communication {Proceedings, Vol. xcix) on 
the production of gold films by a process such as Mr. Swan has within a 
few months past, through the Royal Society, brought before the public. 
The inventor of the process was Mr. Alexander E. Outerbridge, Jr., then 
an assistant in the Assay department of the Mint at Philadelphia and 
subsequently engaged in establishing and carrying on scientific laborato- 
ries at the Whitney Car Wheel Works and at the large establishment of 
William Sellers & Company, both in this city. 

Apart from any future possibility of producing gold leaf by electro- 
chemical instead of mechanical process, Mr. Outerbridge regarded his 
results as interesting in a purely scientific aspect. The gold films pro- 
duced at that time by him seem to have been much thinner than those 
which were recently shown at the Royal Society by Mr. Swan. Speci- 
mens were exhibited in the Philadelphia Mint as early as 1877, and some 
were obtained by several colleges and individuals. One now in the pos- 
session of Dr. George F. Barker, of this city, is accompanied by the 
written account which Prof. Barker received with it in 1878. This mem- 
orandum is as follows : 

"Gold film obtained from a copper plate having 20 square inches sur- 
face : 

" Weight before plating ^^\md ?^s- 

"Weight after plating. ^^{-5-^5 Si's- 

"Weight of gold yfo^ gi'- 

"Calculated thickness, ^-jyl^-Q^Q of an inch ; 59^ times less than a single 
wave-length of green light." 

This is mounted as a slide for a microscope, and has a double fold. I 
have also specimens in my own possession. 

In addition to the brief communication made by Mr. W. E. DuBois to 
this Society in 1877, as aforesaid, the Journal of the Franklin Institute 
(Vol. ciii, 284) gave an abstract of a lecture delivered by 3Ir. Outerbridge 
before the Franklin Institute in 1877. At the stated meeting of the Insti- 
tute held May 16, 1877, Mr. J. B. Knight, then Secretary, referred in his 
monthly report to Mr. Outerbridge's process in the following terms : 

" Transparent Gold. — In the course of a lecture on gold, delivered 
before the Franklin Institute, on February 27lh last, Mr. A. E. Outer- 
bridge, Jr., of the Assay department of the Mint in this citj', gave an 
account of some experiments he had made witii tiie view of ascertaining 
how thin a film of gold was necessary to produce a fine gold color. 

" The plan adopted was as follows : From a sheet of copper rolled down 
to a thickness ofy/j^of an inch he cut a strip 2^ by 4 inches. This 
strip, containing 20 square inches of surface, after being carefully cleaned 

1895.] ^'^ [DuBois. 

and burnished, was weiglied on a delicate assay balance. Sufficient gold 
to produce a fine gold color was then deposited on it by means of the 
battery ; the strip was then dried without rubbing, and reweighed, and 
found to have gained ^V of ^ grain, thus showing that one grain of gold 
can by this method be made to cover 200 square inches, as compared to 
75 square inches by beating. 

" By calculation, based on the weight of a cubic inch of pure gold, the 
thickness of the deposited film was ascertained to be -^johoo of an inch, 
as against 3s?:z^o for the beaten film. 

"An examination under the microscope showed the film to be continu- 
ous and not deposited in spots, the whole surface presenting the appear- 
ance of pure gold. 

"Not being satisfied, however, with this proof, and desiring to examine 
the film by transmitted light, Mr. Outerbridge has since tried several 
methods for separating the film from the copper, and the following one 
has proved entirely successful. 

" The gold plating was removed from one side of the copper strip, and 
by immersing small pieces in weak nitric acid for several days the copper 
was entirely dissolved, leaving the films of gold, intact, floating on the 
surface of the liquid. These were collected on strips of glass, to which 
they adhered on drying, and the image of one of them is here projected 
on the screen by means of the gas microscope. 

"You will observe that it is entirely continuous, of the characteristic 
bright green color, and very transparent, as is shown by placing this 
slide of diatoms behind the film. By changing the position of the instru- 
ment, and throwing the image of the film on the screen by means of 
reflected light, as is here done, you will see its true gold color. 

"Mr. Outerbridge has continued his experiments, and, by the same 
processes, has succeeded in producing continuous films, which he deter- 
mined to be only the -z-.j-^hooij of an inch in thickness, or 10,584 times 
thinner than an ordinary sheet of printing paper, or sixty times less than 
a single undulation of green light. The weight of gold covering twenty 
square inches is, in this case, j§§o of a grain ; one grain being sufficient 
to cover nearly fcmr square feet of copper." 

In a lecture on "Matter," delivered at the International Electrical Ex- 
hibition (Philadelphia), October 9, 1884, and subsequently printed in the 
Journal of the FranUin Institute, September, 1885, Mr. Outerbridge him- 
self made the following statement: 

"After a series of careful experiments. I have obtained, in this way, 
sheets of gold, mounted on glass plates, which are not more than 40:^00^ 
of a millimetre thick ; and I have some specimens to show you which I 
have good reason to believe are not more than 5^00:^000 of a millimetre. 
To give you an idea of this thickness, or, rather, thinness, I may say that 
it is about ^ho V^^^ of a single wave-length of light. Such figures are not 
haphazard guesses, but are based upon reliable and understandable data, 
and are easily susceptible of verification. 


DuBois.] • ^ [April 5, 

"We cannot claim for the thinnest of these films that they represent 
a single layer of molecules. Taking Sir William Thomson's estimate of 
the size of the final molecules, and considering that each laj'er corre- 
sponds to one page of a book, our thinnest film would then make a pam- 
phlet having more than a hundred pages. It is found that when such a 
film is interposed between the eye and any object it is as transparent as a 
piece of glass. Tliis may be readily proved by projecting a picture on 
the screen and interposing the leaf of gold in the path of the light and you 
see that the only apparent effect is to tinge the light a pale greenish color, 
none of the detail of the picture is lost, though all the light is coming 
through a piece of gold as absolutely continuous in its structure, when 
examined under a microscope, as though it were an inch thick. By plac- 
ing in the lantern a piece of ordinary gold leaf, having a thickness of 
about 2tfirVot» ^f ^^ inch, and a piece of electro-plated gold leaf about 
sTo^oSTiJou <^f ^^ ^'^•^'^ thick, mounted side by side on a glass slide and 
focusing their images on the screen, you will see a very great difference in 
the amount of light transmitted by the two, owing to the difference of 

One particularly interesting thing about the foregoing extract is that 
the lecture from which it was taken was bound in as a part of the litera- 
ture relating to the exhibition, and sent broadcast to exhibitors and others, 
to whom Mr. Swan's revelations ought therefore to come with no degree 
of novelty. 

The Journal of the Franklin Institute, in its issue of September, 1894 
(Vol. cxxxviii, 825), refers to the Outerbridge and Swan processes in an 
article which concludes as follows: 

"It may be stated, in conclusion, that the mode of procedure above 
described was patented by its author [Alexander E. Outerbridge, Jr. ], 
under the title 'Manufacture of Metallic Leaf In his patent the inven- 
tor describes, as 'a new and improved method of manufacturing gold leaf, 
silver leaf, and other metallic leaf,' the above-named method of electrical 
deposition. As suitable mediums to support his films, he mentions copper 
in thin sheets, and paper, shellac, wax, etc., made conductive upon the 
surface which is to receive the deposit. 

"For removing the deposited film from copper and paper, Mr. Outer- 
bridge describes the use of a bath of dilute nitric acid, or of perchioride 
of iron. In the case of the shellac, wax, etc., alcohol, benzine and other 
solvents are referred to." 

The patent granted to Mr. Outerbridge is No. 193,209, and is dated 
December 18, 1877. 

The American Philosophical Society is presumably interested in ques- 
tions of scientific priority, especially when that priority is American, and 
still further, when it is Philadelphian. As Mr. Outerbridge and I worked 
side by side for twelve years as assistants in the Assay department of the 
Mint in this city, I am glad to add my testimony towards the substantia- 
tion, if such were necessary, of the facts herein mentioned. As stated 

1895.] ~ 71 [Brinton. 

in the beginning, Mr. Swan's process, notwithstanding its striking simi- 
larity to Mr. Outerbridge's, may be fairly original with Mr. Swan, but it 
was also original with Mr. Outerbridge some seventeen years before Mr. 
.«ean appears to have made his achievement known. 

The Protohistoric Ethnography of Western Asia. 

By Daniel G. Brinton, 31. D. 

{Read before the American Philosophical Society. April 19, 1805.) 

Many of the most weighty problems in ethnography and in 
the history of civilization depend for their solution on the rela- 
tive positions of races and linguistic stocks in western Asia at 
the dawn of history. The numerous special studies which have 
been devoted to the archaeology of this region are abundantly 
justified by the importance of the results obtained and yet to be 

It is my intention in this article to examine these studies with 
the aim of ascertaining what races and stocks occupied the area 
in question in protohistoric times, and where lay the lines of de- 
marcation between them. It is possible that by bringing to 
bear upon the questions involved the general principles of eth- 
nographic research, some light may be thrown on points still 
obscure. This I shall have in view when it appears applicable. 

The area to be considered is roughly that portion of Asia be- 
tween the thirtieth and fortieth parallels of north latitude, and 
west of the fiftieth meridian east of Grreenwich. It includes 
the whole' of the Euphrates-Tigris valley, Syria, Asia Minor 
and Trans-Caucasia. 

Alleged Prehistoric Races. 

The assertion has been often made that there are indications of 
races in this area belonging to other varieties of the human 
family than those discovered there in the protohistoric period. 

These statements require to be examined as a preliminary to 
the study of the earliest historic peoples. 

Brinton.] • '^ [April 19, 

1. An Alleged Primitive Black Race (Dravidian or Negritic). 

The theory was advanced by Lenormant that lower Mesopo- 
tamia and southern Persia were once peopled by an ancient 
branch of the black-skinned Dravidians of India. This opinion 
has of late years been defended by De Quatrefages, Oppert, Le- 
fevre, Schurtz, Schiaparelli, Conder and others.* 

The only evidence which seems at all to support such a view 
is the presence in the Khanate of Celat of the Brahu tribe, who 
have been bj*^ some classed with the Dravidas or Mundas of 
India. They are certainly negroid, with swarthy complexions, 
flat noses, scanty beard, hair black and curly, cheek bones high 
and face broad. Their lang-uage has undoubted Dravidian ele- 
ments, the words for " one " and " two," for example, and man}' 
others. But its grammar seems to me to be much more Aryan 
than Dravidian. The verbal subject is a separable pronominal 
prefix, the nouns have declensions, and the suffixes are no longer 
root-words. It is probable they are merely a hybridized outpost 
of the Dravidian stock. f It is well to remember that they 
dwell on the affluents of the Indus, twelve hundred miles dis- 
tant from the Euphrates, and there is no reason to suppose that 
they were ever nearer it. 

The undersized negritic population which is found in the 
Andaman and other islands south of the Asiatic continent has 
been supposed, principally on the strength of some discoveries 
of negroid heads and portraitures at Susa by M. Dieulafoy, to 
have extended into Babjdonia. But these sculptures belong to 
a comparatively late period, and if negritic — and their strong 
beards render such a supposition improbable — they are much 
more likely to have been of slaves or captives than of an old 
resident population.;}; This would also explain the somewhat 
negroid traits of the modern Susians. 

*See De Quatrefages, The Pi/i;mies, pp. 55, 56 (Eng. trans., N. York, 1S95) ; Lef6vre, 
Race and Language, p. 118; Schurtz Catechismus der Voikerkunde, p. 155; L. Schiaparelli, 
" Sull 'Etnogralia della Persia antica anteriore alle luvasione ariane,*' iu AttideUn R. 
Accad. delle ScU-nze di Torino, 1888. The last-meutioued distinctly identifies the Bmhu 
as the remnant of the primitive speech. 

t" Synoptical Grammar and Vocabulary of the Brahoe Language," iuBellew, Travels 
from the Tiiduti to the Eitphrates. There are only three numerals in the laugaage : 1, asit ; 

2, irat ; 3. Vixsit. The others are borrowed from the Persian. The first may bo compared 
to theSumerian ash, one Mr R. N. Oust, in his Languages of the Eitst Lidics, is doubtful 
alMut the Dravidian relationship. 

I The theory that the beard and hair are artificial of course destroys ethnic value of any 
kind for these figures. 


1895.] * ^ [Brinton. 

The " Asiatic Ethiopians," mentioned by Herodotus and some 
other early Greek writers, were not negroid. They are described 
as having straight hair, and it has been shown by Georges Radet 
that some of them at least were Semites.* 

2. An Alleged Primitive Hamitic (Gushite) Race. 

By the " Hamitic " stock, ethnographers and linguists now 
mean those who speak dialects of the Berber languages of 
northern Africa and their affined tongues, the Galla, Somali, 
Danakil, etc., of eastern Africa. The "Gush" of the ancient 
Egyptians was largely peopled by Hamites, and the oldest in- 
habitants of Egypt itself were probably of Hamitic blood. 

The idea of locating members of this stock on west Asian 
soil was no doubt first derived from the book of Genesis. f 
That respected authority states that Nimrod, the son of Gush 
and grandson of Ham, settled in the plain of Shinar and built 
the first cities of Babylonia. This statement was eagerly 
adopted by the early Assyriologists, notably by Sir Henry and 
Prof. George Rawlinson, by Lepsius, Loftus and others. The 
language of old Babylon was even identified with the mod- 
ern Galla, and the passage of the Hamites or Cushites across 
the Red Sea, by way of Arabia to the Persian Gulf, was accu- 
rately traced ! % 

Another band was supposed to have entered Palestine and to 
have left representatives in the light-complexioned Amorites of 
the highlands. 

It must be acknowledged that later researches have accumu- 
lated no evidence in favor of these ancient legends. Except in 

* See his extended discussion of the passages in the Rcime Archcologique, Tome xxii 
(1893), p. 209, s<?. 

t The genealogical list of peoples in Genesis x is often appealed to in support of theo- 
ries in ethnography. That list has much interest politically, geographically and even 
historically ; but cannot at all be accepted on questions of ethnic affiliations. Schrader, 
Hommel and Delitzsch have expressed the opinion that the " Cush" of Gen. x. 8, etc., 
refers to the Kashites of the lower Tigris, who will be discussed later. Fried. Delitzsch, 
Die Sprac.he der Kosiaer, p. 61, note. 

J See Prof. Rawlinson in Smith's Diet, of the Bible, s. v. "Chaldeans;" and Sir Henry 
in tlie notes to his translation of Herodotus ; W. K. Loftus, Travels in CluUdea and Susi- 
ana, pp. 69, 70, 93. Lepsius' views are severely criticised by Dr. VV. Max Miiller in his 
erudite work, Asienund Earopa nach altegyptischen Tnschriflen (Leipzig, 1893), p. 343. The 
theory has recently been developed by M. Lombard in his " Description ethnographique 
de I'Asio Occidentale," in the Bidl. dc la Sm. d' Anthropolofjie of Paris, 1890, though his 
connotation of the term chamitique differs from that of Rawlinson. 



Briuton.] • ^ [Apnl 19, 

one or two possible instances in southern Arabia,* no example 
of a Hamitic dialect has been discovered in Asia ; and Bab}^- 
lonian Semitic is as far from Galla as is ancient Arabic. 

Principally because they are said to have been blonds, Prof. 
Sayce claims the Amorites as Lib^'ans. But there are blonds 
in considerable numbers among the pure-blooded Arabs of the des- 
ert. Therefore this trait is not conclusive. Moreover, some of 
the ablest critics now believe that " Amorite " and " Canaanite " 
were merely ethnically synonymous terms applied to the same 
Semitic people.f At any rate, the Amorites, if non-Semitic, 
are much more likely to have been allied to the tribes north of 
them than to the African Libyans. 

3. An Alleged '■'•Turanian'''' (Sibiric or Sinitic) Race. 

A favorite theory with many writers, notably Lenormant, 
Sayce, Conder, Isaac Taylor, etc., has been that the '' Turanians " 
extended over western Asia and central and southern Europe in 
prehistoric times.;}; 

Who these Turanians were is not alwaj's clear. Prof. Sayce 
sometimes calls them " Ugro-Altaic," at others, " Ugro-Mongo- 
lian," by the former meaning collaterals of the Finns, Tartars 
and Turks (those whom I call Sibiric), § and hy the latter appar- 
ently including the Chinese. 

Apart from the alleged evidence from linguistic data, which 
I shall consider later, scarcely anything save assertions have 
been offered in favor of this opinion. Before the historic 
invasions of western Asia by the Sibiric tribes, tliere is no rec- 
ord of their presence in Persia or west of it. There are no 
remnants of a prehistoric occupation by them, no existing frag- 
ments of a primitive Sibiric tongue. The only groups of Mon- 
gols now in the limits of ancient Iran, to wit., the Hasarah and 

♦Notably the Ekhili or Mahri in the Hadramaut. See M. de Charency's study of this 
dialect in Actes de la Socictt Philologique, T. i, p. 31, sqq. Dr. Glaser has recently obtained 
more material, but this has not yet been published. 

+ The question is impartially stated in J. F. McCurdy, History, Prophecy and the Monu- 
ments, Vol. i, pp. 406-10? (New York, 1894). Dr. W. Max Miiller assigns strong reasons 
for considering the Amorites to have been pure Semites, Asien und Eiiropa, pp. 2S0-234. 

I The evidence in favor of this theory is luUy summed up by C. K. Conder in his arti- 
cle, " The Early Races of Western Asia," in the Jour, of the Anthropological Institute, 1890, 
p. 304, sq., and in his Syrian Stone Lore (London, 1886). 

§See the clasaification of the Asian race whi(;h I adopt in my Races and Peoples; Lec- 
tures on the Science of Ethnography, p. 191 (New York, 1892). 


1895.] • " [Brinton. 

the Aimak, between Herat and Cabul, and a few others, drifted 
there in the mighty inundation of Ghenghis Khan in the four- 
teenth century of our era.* 

According to their own traditions, and the concurrent testi- 
mony of the oldest Chinese annals, the present Khanates of 
Khiva, Bokhara and Khokan, as well as eastern Turkistan, were 
inhabited in the most ancient time by an Aryan population, 
which was conquered or expelled by the Mongol-Tartar race 
within the historic period. f 

This is substantiated by the most recent researches with ref- 
erence to the ethnic position of the ancient Asian Scythians who 
are located in that vicinit^^ by the Greek geographers. They 
are shown to have been members of the Indo-European family. | 

It is even very doubtful that in the remote Avestan period of 
the history of eastern Iran the Aryans had to contend with 
Altaic or Mongolic hordes ; for their enemies are represented as 
using war chariots, which were unknown to the Tartar horse- 
men.! The so-called non-Aryans (anarya) probably were merely 
other tribes of Indo-European origin, of different culture and 
religion. II The peculiar arrow release of the Mongolians and 
their characteristic bows are not depicted on the oldest monu- 
ments, nor were they familiar to the early western tribes of 

Phj'sically the protohistoric peoples of western Asia nowhere 
display clear traits of the well-marked t3'pe of the Sibiric stock. 
Judged either by the portraitures on the monuments or by the 
cranial remains in the oldest cemeteries, they were meso- or 
dolicho-cephalic, with straight eyes, oval or narrow faces, distinct 
nasal bridges, etc. 

A persistent effort was made a few years ago by the Rev. C. 
J. Ball to prove that the language and blood of the southern 

* H. Rchurtz, Calechismas der Volkerkunde, p. 292. 

t W. Geiger, Civilization of the Eastern Iranians in Ancient Times, p. 18 ; Gregorjew, Bulle- 
tin of the Oriental Congress at St. Petersburg, 1876, p. 38. 

X Berlin in Jour, of the Anthrop. Inst., 1888, p. 109 ; Hovelacque, La Linguistique, p. 190, 
and others. 

§ W. Geiger, u. s., who inclines, however, to a pre-Aryan hypotliesis. 

II Geiger points this out clearly, and it is surprising that Schrader and Jevons {Prehis- 
toric Anuquities of the Aryan People, London, 1890) fail to note that arya in the Avesta is a 
religious, not an ethnic, distinction. 

% See Prof. E. S. Morse's suggestive study on arrow releases as an ethnic trait in Essex 
Institute Bulletin, 1885. 

Brinton ] < " [April 19, 

Babylonians were distinctly Chinese.* His essays on this sub- 
ject are striking examples of the misapplication of the principles 
of linguistic compai'isons for ethnographic purposes. By the 
methods he adopts anj^ two languages whatever can be shown to 
be related. He claims his view to be original ; but eighteen 
years before he published it, the Rev. Joseph Edkins had 
printed a volume to prove that the Chinese language had its 
origin in the Mesopotamian plain, because the Tower of Babel 
stood there, near which the " confusion of tongues " took place ! f 

Prof. A. Boltz has lately pushed the Sinitic theory to its ex- 
treme by discovering elements of Japanese in the tongues of 
old Babylonia. 

These opinions scarcely merit serious refutation ; the more so 
as the whole Turanian hypothesis has distinctly weakened of 
late years, several of its warmest defenders having gone over 
to the " Alai-odian " theory, which I shall consider presently. 

4. An Alleged " Ground Race " of Unknown Affinities. 

It will be sufficient to mention the notion advanced by Bertin, 
that in prehistoric times westei'u Asia was peopled by what he 
calls a " ground race," a variety of the human species of no par- 
ticular language or physical type, which he imagines once spread 
over the whole earth and disappeared with the advance of the 
higher varieties. | No evidence is offered for the existence of 
this fanciful creation of a scientific brain. 

The " Stone Age " in Western Asia, 

The absence of a prehistoric, aboriginal people, of a different 
variety from the white race, resident in western Asia, appears 
confirmed by archneological investigations. 

Up to the present time no sufficient proof of paliieolithic sites 
within the area I am considering has been presented. § 

•Ball's articles on the subject are in the Proceedings of the Society of Biblical Archxology^ 
1889, and after. 
■f-Rev. Joseph Edkin, China's Place in Philology (London, 1871). 
JG. Bertin, "The Races of the Babylonian Empire," in the Jbftr. of the Anthrop. Soc, 

18S8, p. 101, Sqq. 

gG. de Mortillet, in his Prehistorirjue Antiquitc cle C Homme, pp.178, 288,430, presents 
statements to the contrary. But the day is past when we assign a rough stone implement 
of "chelloen " form at once to palaolitliic times. The stratigraphy is the test, and this 
has not been shown to justify such antiquity in Syrian caves. 

1895. J ' ' [Brintou. 

Prof. Hilprecht, of the Niffer expedition, brought from the 
Lebanon range a, collection of roughl^^ chipped stones, but I am 
convinced, after examining them carefully', that they are not 
completed implements, but " quarr}^ rejects," such as have often 
been mistaken for pahBoliths, or else undeveloped forms. 

In the oldest strata of Hissarlik no signs of a " rough stone " 
a'ge were discovered.* In the caves of the Libanus range ex- 
amined by Lartet, the oldest remains of man's industry in stone 
were associated with pottery and the bones of living species 
of animals. f Later cave exploration, when properly conducted, 
has everywhere in western Asia repeated this story. Only when 
the strata have been manifestly remanie hy nature or man have 
stone implements been found in juxtaposition to the bones of 
extinct species. 

In none of these deposits have human remains been exhumed 
presenting the low and presumably very ancient types of the 
" neanderthaloid " man, or the " pithecanthropus." 

The megalithic monuments, the dolmens and menhirs of S^-ria 
and Palestine also contain pottery and belong distinctly to the 
polished stone period, if not to that of early metals. They 
have been attributed to some prehistoric, non-Semitic people ; 
but the fact that Palgrave and Dr. d'Elyseff found just such 
monuments in Arabia removes the foundation for such an asser- 
tion, and assigns them to early Semitic hordes. | 

This is consistent with the Egyptian portraitures, which rep- 
resent all the inhabitants of Sj-ria (except the Hittites) with 
pure Semitic features. § 

The conclusion from the above facts is, that from the testimony 
so far presented, western Asia, instead of being the birthplace 
of the human species, as has generally been supposed, was, in 
fact, comparatively lately occupied by man. 

* Verhand. der Berliner Anthrop. GeselL, Bd. xi, s. 275. 

t Lartet, Voyage d' Exploration d la Mer Morte, pp. 215, !<qq. The latest scientific explorer 
of the caves of Palestine is Dr. Alexandre d'Elj'seflf His full text has not yet appeared, 
but an abstract was published in the Ball. delaSoc. d'Anthropologie, Paris, 189i, p. 217. 

I Lartet, Exploration, etc., p. 238. He gives interesting sketches of a number of these 
monuments. They were doubtless sepulchral. Hoernes refers them to the " earliest age 
of metals;" Die Urgeschichte dei Menschen, p. 402 (Vienna, 1892). Dr. d'Elyseff {uhi 
suprd) assigns those in northern Arabia to the neolithic period. Their builders knew 
the ass and camel, but vv^ere anthropophagous. 

i W. Max Miiller, Asien und Europa nach altegyptischen Inschriften, p. 229. 

Brinton] *^ [April 19, 

Members of the White Race the Earliest Known Occupants. 

Excluding for the reasons above given the various alleged 
prehistoric races named, we are justified in saying that western 
Asia at the dawn of history was under the exclusive control and 
substantially wholly populated by the white race. 

This race is that to which Blumenbach erroneously applied 
the name " Caucasian," by which it is still familiarly known. It 
is distinctively the " European," in contrast with the Asian 
(Mongolian, yellow), and the African (Negro, or black) sub- 
species. I have, however, assigned it the more correct name 
■•' Eurafrican," as its primitive home included northwest Africa 
as well as western Europe.* 

In western Asia it was represented from the remotest historic 
times, as it is to-day, by branches of its three great linguistic 
stocks, the Aryan or Indo-Germanic (Xorth Mediterranean), the 
Semitic (South Mediterranean) and the Caucasic. In a general 
way, the Caucasic tribes are and always have been in the north, 
the Aryans in the centre and the Semites in the south. The 
tribes which cannot positively be assigned to one or other of 
these stocks I shall consider later. 

Lines of Immigration. 

There was a time when the doctrine was general that the white 
race originated in central Asia, and moved westwardly into 
Europe and Africa. 

Cogent I'easons have of late led to a reversal of this opinion. 
The white race, as such, most probably had its " area of charac- 
terization " f in western Europe and the Atlas region (then 
united by a land-bridge), and moved eastwardly in two great 
streams, the Hamitic and Semitic branches journejung south of 
the Mediterranean, the Ar3'an and Caucasic north of it. 

For a very long period the proto-Semites resided in Arabia, 
developing there the special traits of their languages, their 
ethnic character, and to some extent their earlj' culture. Later 
they spread over Syria and Mesopotamia, advancing in both 

♦See my Races and Peoples, p. 103, S(jq., for the subdivisions of the white race, 
tl adopt this excellent expression from M. de Quatrefages, and have explained it in 
my Races and Peoples, p. 94. 

1895.] • ^^ [Brinton. 

directions until checked by the North Mediterranean immi- 

The Arj^ans entered Asia chiefly by the Hellespont and Bos- 
phorus. They traversed Asia Minor into Iran, where the lofty 
chain of the Hindu Kush turned one current to the north to 
Bactriana, another to the south to Afghanistan and India."!" 
^ The Caucasic tribes may possibly have compassed the Black 
Sea, and thus have reached their mountain homes ; but the evi- 
dence, both linguistic and archa^ologic, is that they preceded the 
Aryans along the same route into Asia Minor, and originally 
occupied localities well to the south of their present position. 
The indications are that they did not reach the Caucasus until 
late in the neolithic period, or about the beginning of the Age 
of Iron, and then as refugees, driven from more favored climes 
to the south and southeast, and bringing with them elements of 
the characteristic cultures of those regions. | 

We cannot suppose a movement in the reverse direction ; for, 
as M. Chantre well remarks : " History does not furnish a single 
example of a nation which has left the Caucasus to spread itself 
in the plains near it or in remoter regions." The mountain fast- 
nesses were refuges, not centres of dispersion.§ The most pro- 
longed researches in the caves of the Caucasus and in the drift 
of its rivers have brought to light no evidence of a really ancient 
occupation, no traces of an " old stone " or palaeolithic condition 
of culture. II 

Antiquity of the Immigratiox. 

While the general movement above outlined has been recog- 
nized by various writers, its antiquity has been surely underesti- 

* See an article by me, " The Cradle of the Semites," read before the Oriental Club of 
Philadelphia, and published, with a paper on the same subject by Dr. Morris Jastrovv, Jr., 
Philadelphia, 1890. 

tSee the suggestive study of M. G. Capus, " Les Migrations Ethniques en Asie Centrale 
au point de vue Geographique," in L'Anthropologie, 1894, p. 53, sqq. 

X This is the result of a careful comparison of the oldest artefacts from the necropoles 
of Trans-Caucasia. See F. Heger, in Verhand. Berliner Anthrop. Ges., 1891, p. 424. M. E. 
Chantre believes the connection was with Assyrian culture, and an equal authority, M. 
de Morgan, that it was with Iranian (Morgan, Mission Scientifiqueaii Caucase, Paris, 1S89). 

§In the 0}ng. Intcrnat. d' Archeologie Prehistorique, Moscow, 1892, Tome i, p. 173. This 
illustrates how erroneous was the notion of Blumenbach that the Caucasus was the 
cradle of his so-called " Caucasian," i. e., European white race. 

11 Chantre, «. s., Tome ii, p. 82, sqq. Compare also the article of F. Bayern, " Ueber die 
alteslen Graber in Kauliasieu," Sup. to Zeitsclirifl fiir Ethnologie, 1885, and the recent re- 
searches of Rosier and Belck in the Verhand. Berliner AntJiroi). Ges., 1891, pp. 213, sqq. 

Brinton.] "^ [April 19, 

When we calculate the age of culture in Mesopotamia and 
S^'ria, and especially the lime required to develop the extensive 
changes in the languages and dialects of all three stocks, it is 
safe to say that the appearance on Asian soil of the northern 
and southern streams could not have been later than ten or 
twelve thousand years B.C. We need fully this much elbow- 
room to account for the changes, physical, cultural and linguistic, 
in the stocks themselves, and b}^ taking it many difficulties will 
be avoided.* 

Late researches tend strongly in this direction. It has been 
shown that the Georgian dialect of the Caucasic stock has 
changed almost nothing in grammar or vocabulary in a thousand 
years ; f the age of the gdthds, the oldest songs of the Avesta, 
has been carried back far beyond the former computations ; J 
and in spite of vigorous opposition, the opinion is gaining 
ground that the more ancient portions of the Rig Yeda must be 
assigned to a period about four thousand years B.C.§ City- 
building nations lived on the Euphrates six thousand years be- 
fore our era, as is indicated by the alluvial deposits. || And other 
evidence to the same effect is constantly accumulating from 
various directions. 

No position could be more untenable than that recently main- 
tained by Col. A. Billerbeck that the Ar^^ans entered Asia about 
the thirteenth century B.C., '• coming from the north around the 
Caucasus," (!)^ into western Asia, and did not become the lead- 
ing race in Persia until about 800 B.C., a land which he belieA'es 
was before that date inhabited by a " Mongolian " population. 
Such views are directly against the evidence. The light which has 
been thrown on the culture of the Indo-Iranians anterior to that 
remote period when they separated, by the linguistic researches 
of Schrader, show that even then they had domesticated those 

*As that advonced by Schlaparelli, that we cannot suppose Iran to have been unin- 
habited when powerful and orgaiiizid nations dwelt on the Indus and the Euphrates. 
There is no reason why it may not have been peopled by Aryans as early as these locali- 
ties were by Dravidiaus and Semites. Cf. Schiaparelli, nbi stqjrd, p. 316. 

tSee the admirable work ot R. von Erckcrt, I)ic Sprachen des Kattkasischen Stammcs, 
pp. 2S8, 300 (Vienna, 1895). 

X W. Geiger, ubi suprd, Introduction. 

§ I refer to the arguments of Prof. Jacobi, of Bonn, and the Hindu, Bal G. Tilak. For 
a very one-i<idtd criticism of these, by Prof. Whitney, see Proceedings of the Amer. Orien- 
tal Hociely, March, 1H94, p. l.KXxii. 

II Dr. J. F. Peters, in Science, March 8, 1895. 

H " Von Nordeu, um den Kaukasus herum, uach West Asien." Billerbeck, Susa, p. 63. 

1895.] C>1 [Brinton. 

thoroughly Asiatic animals, the camel and the ass, and had lived 
long enough in their Asian home to develop many local culture- 
words, which each branch preserved after their division.* Years 
ago the acute student of antiquit}^, Vivien de St. Martin, 
pointed out that throughout the Avesta there is not an instance 
of a word, proper name or culture-reference which distinctly 
iiklicates association with any Turanian or Dravidian national- 
ity.f This significant statement has borne the test of criticism, 
and is well-nigh conclusive in its bearing on the question at 

We may now proceed to scrutinize more closely each of the 
three great divisions of the white race who dwelt in western 
Asia in prehistoric and protohistoric times. 

The first to arrive, as I have intimated, I take to have been 

The Caucasic Stock. 

The clear definition of this stock is one of the most recei.t 
conquests of anthropologic science, and is due chiefly to the un- 
tiring studies of Gen. R. von Erckert, of the Russian army.|; 
He has proved the fundamental unity of the three great groups 
of the Caucasic languages, the Georgian, the Circassian and the 
Lesghian. In these groups there are about thirty dialects or 
languages, and they have not j'et been sufficiently analyzed to 
decide which is nearest to the original tongue, the common 

The morphology of the stock is strictly its own, severing it 
as widely from the Ural-Altaic tongues as from those of Aryan 
or Semitic complexion. It is an entirelj* independent linguistic 

The Georgian is the southernmost group, being spoken in 
Trans-Caucasia about Tiflis. It is divided into several branches, 
which are scarcely more than dialects, the Grusinian, the Imeri- 
an, the Mingrelian, the Lasian and the Svanian. The structure 
of these is not agglutinative in the proper sense of the word. 

* Schrader aud Jevons, Prehistoric Antiquities of the Aryan Peoples, p. 2G7, etc. (Londou , 

t Oeographie dii Veda, Paris, 1859, etc., quoted by L. Sehiaparelli in his article already 
quoted, '" SuU 'Etnografia della Persia autica aateriore alle invasione ariaae." 

X Die Sprachcn <lcs Kaukasischcn Stammes (Vienna, 1895). The grouping of the Caucasic 
languages is not yet settled. Eicliert incline:* to a provisional, geographical one. 

PfiOC. A.MEB. PHlLOS. SOC. XXXIV. 147. K. PRIKTED MAY 10, 1895. 

Brinton.] ^^ [April 19, 

They abound both in prefixes and suffixes, but these are not, or 
are rarely, independent themes. The same affix may be used 
either as a prefix or a suffix. The verbs have a direct conjuga- 
tion in which the theme is verbal, and another in which it is 
nominal (e. g., " I see it," and " the seeing it is to me "),* 

The physical type of the Caucasic stock is that of the pure 
white race, the brunette variety. The modern skulls are broad 
(brachy cephalic), but those from the most ancient cemeteries are 
much less so, proving that a change has taken place in this re- 
spect during historic times. f The stature is slightly above the 
European average. The hair is dark and wavy, beard abundant, 
eyes straight and dark, nose prominent. Handsome men are 
frequent, and the beauty of the women is famous the world 

In the opinion of M. Chantre — an archaeologist who has most 
thoroughly investigated the subject — the Georgians have resided 
in their present territory at least since 2000 B.C.J This is cor- 
roborated by the development of their dialects. Their own 
legends, which trace their ancestry back to Kartvel, fourth in 
descent from Noah, are worthless. § 

Whenever it was that they reached Trans-Caucasia, they cer- 
tainly brought with them an advanced culture. The oldest ceme- 
teries belong to the dawn of the Iron Age (the Halstatt epoch); 
a few burial mounds may date back to the Copper Age, but none 
are in the exclusively Stone Age.|| This proves, as already sug- 
gested, that their earlier development was in another clime, in 
some more southerly latitude, where the}' were in contact with 
an older civilization, which must have been either Aryan or 

*Fr. Miiller, G)-undriss der Sprachwissenschaft, Bd. iii, Abth. i, s. 216, sq. 

t Dr. R. Virchovv, Verhand. Berliner Anlhrop. Qes., Bd. xiv, s. 474-480. In the necropolis 
of Sam tha wo two-thirds of the oldest skulls are dolicho-cephalous. The modern Geor- 
gians have an index of about 84°. Many of the old skulls average as low as 73°. See on 
this Dr. Zaborowski, in Bull, de la Soc. d' A nthropologie de Parix, 1894, p. 43. This change 
in cranial form is doubtless owing in part to intermarriage with brachycephalous stocks, 
but partly also to persistent antero-posterior deformation finally exerting hereditary in- 

tSee his article, "Origine et Ancienneto du premier Age du Fer au Caucase," in the 
Mcms. de la Soc. d'Anlfiropoloj/ie de Lyons, 1892, and in the reports of the International 
Congress of Prehistoric Archaeology at Moscow, 1892. De Morgan refers the older tombs 
of Armenia and Trans-Caucasia to a period 2500-3000 B.C. (Mission Sciaifijlque au Cau- 
case, p. 203.) 

gThey are epitomized in N. F. Rittich's Die Elhnographie Russlands, p. 2. 

11 Dr. Virchow, uhi sup., p. 482. 

1895.] ^'-^ [Brinton. 

Their immediate neighbors on the soutli were the inhabitants 
of the basin of Lal<e Van. These were the " Urartu " of the 
Assj^rian texts, the " Alarodi " of Herodotus, dwelling near tlie 
Ararat of the Hebrew Scriptures. They spoke a non-Semitic 
language, which by Sayce, Lehmann, Hommel and others has 
been classed with the Georgian. This is probable, although it 
was certainly more or less Aryanized when we first become ac- 
quainted with it (about 800 B.C.).* The native name of the 
land was Biaina, and of the people, C/laW^, after their chief god 
Chaldis. From this they are designated in ancient geography 
as the " Pontic Chaldeans," to distinguish them from those in 
Babylonia (the Kash du). A sharp culture-line, however, di- 
vides these Chaldi from the Georgians. Their mode of burial 
was quite different, and their proper names cannot be analj'zed 
from the Grusinian lexicon. This line crosses the river Araxes 
above Ordubad, and is easily traced by the existing remains. f 

Another people claimed, with some show of reason, to have 
belonged to this family were the Mitani, who occupied the great 
bend of the Euphrates about 31° N. Lat.| Certain proper 
names of divinities and affixes are common to them and to the 
old Yannic language. The name Mitani itself sounds Georgian, 
as in that tongue -ani or -mni is an adjectival suffix (okhro, gold ; 
okhrani^ golden). 

Bold attempts have been made to trace the Georgian into 

It has been pointed out that Strabo mentions the Iberians 
and Albanians as tribes dwelling in Trans-Caucasia ; and this is 
enough to have induced Prof. Hommel to claim that the Grusin- 
ian is related to the Albanian of ancient Illyria and to the 
Basque of the Pyrenees. § As the former is a well-marked 

*" stark indogermanisirt," as Hommel says. His articles in point \\\\\ be found in 
the Archivfilr Anthropologie, Bd. xix, s. 251, sq., and the ZeUschri/tfur Keilscliriftforschung, 
Bd. i, s. 162, sq. In the latter he says ihat the old Armenian, the Cossaean and the Suso- 
Medic belonged "zvveifellos" to the Georgian family. Heinrich Winkler considers the 
affinity of the Vannic to the Georgian is " shown to be highly probable " ( Ural-Altdische 
Vulker unci Sprachen, p. 145). 

t See an excellent article by Waldemar Belck in the Verhand. der Berliner Anthrop. Ges., 
1893, s. 81, sq. Bertin {Gram, of the Langs, of the Cuneiform Inscrips.) gives three Vannic 
numerals : 1, shushi; 2, tara; 3, shishti. These are rather similar to the Caucasic : 1, eshku; 
2, heri; 3, shshi. 

I Among others, Dr. Lehmann supports this opinion, Zcitschrift fiir Elhnologie, 1892,' 
s. 130 (though with some hesitation). Compare his Shamashshuinakin, s. 63. Others con- 
nect the Mitani with the " Hittite " tongue. To this I shall refer later. 

I Arehiv fiir Anthropologie, Bd. xix, s. 251. 

Brinton.] o4: [April 19, 

Aiyan language and the latter one whose morphology is widely 
different from members of the Caucasic stock, the suggestion 
scarcely merits serious reception. The Etruscan, which has, of 
course, been thought of in this connection, presents no points of 
positiv^e affinity. Possibly if we knew something of the Ligu- 
rian or the pre Italic dialects, we might discover a connection. 
The Caucasic physical type is certainly that of the south of 
Europe, rather than of the north.* 

The Aryan Stock. 

I take it as sufficiently demonstrated that the Aryan cradle- 
land was in western Europe. Evidence of all kinds is constantly 
accumulating in favor of this opinion, and I need not rehearse 
it here.f 

In spite, however, of the indisputable relationship of the 
Aryan tongues, the branches of the stock do now, and appar- 
ently always have presented several distinct physical varieties. 
Prof. KoUmann has claimed that there were at least four of these 
in prehistoric Europe.]; Two certainlj' cannot be questioned. 
There is the blonde type, with medium or long heads, orthog- 
nathic, with fair or ruddy complexions, hair wav}' and brown, red 
or flaxen in hue, eyes blue, gray or brown, stature tall, nose narrow 
and prominent, beard abundant. Such in Europe are the Scan- 
dinavians and Scotch Highlanders ; and in Asia such are the 
Galchas and neighboring tribes, pure-blooded Iranians in the 
secluded valleys of the upper Oxus.§ The modern Persians, in 
spite of admixture, partake of it largelj', and hence the name 
of contempt which the Turcomans apply to them, Ouzl-hash. — 
" red heads." 

Another European type is that of the dark Celts. The}' are 
brunettes, of short stature, with round, high heads, black eyes 

*The able archaeologist, M. De Morgan, confuses his readers by calling the Caucasians 
• ' Turanians" — " Les Touraniens, ou blancs allophyles." He means by these the mem- 
bers of what I call the Caucasic branch of the white race, and the map which he gives, 
" Carte de I'Asie Antericure pour rEpoque Assyrienne," in which he marks the southern 
limit of the Caucasic stoclc by a line drawn from the mouth of the Araxes to the Amanus 
mountains, is, I am persuaded, quite accurate. The differences between us are in plirase- 
ology only. See his Mission Scientifique au Caucase, pp. 197, 202, etc. 

tSee my Races and Peoples, p. 109, sq., for a condensed statement of the argumeut. 

tSee his article, " Les races huiaaines de I'Europe et la question arieune," in the Pro- 
ceedings of the Congress of Prehistoric Archxologij, Moscow, 1892. 

I Wm. Geiger, Civilisation of the Eastern Iranians, p. 8. 

1895.] ^^ [Brinton. 

and hair, somewhat prognathic, beard rather scanty. In proto- 
historic times they extended through central Europe from the 
Pyrenees to the Bosphorus, and included the Rhpetians, Cro- 
atians, Roumanians and Dacians. The modern Auvergnats and 
Savoyards retain the type in its greatest purity.* 

The Aryan languages are preeminently inflectional. The proto- 
historic members of the family in Asia were the Hellenic, the 
Armenian, the Iranian and the Indian (Sanscrit) groups. To 
these, which have been recognized by all, I would add the Celtic. 
All are characterized by suffix-inflections, where the augment is 
not a separate word, but can be used onlj' as a grammatical ad- 
junct to the theme. 

But it is of prime ethnographic importance to note that this 
represents a comparatively late stage in the growth of language. 
Prof. Brugmann pertinentl^'^ remarics : " The first foundations of 
inflections were laid by the fusion of independent elements. We 
have to presuppose a period in which suflfixal elements were not 
yet attached to words." f 

It is possible that some of the Arj-an tribes at the period of 
their arrival in Asia still retained a condition of the common 
tongue in which the suffixes were loosely attached to the stem 
and preserved their independence as words. An Aryan lan- 
guage in this stage might easily be mistaken for one which is 

The Semitic Stock. 

As I have already said, the " area of characterization " of the 
Semitic stock is now genei'ally admitted to have been in Arabia. 

When its members began to expand from that centre towards 
the east and north, the configuration of the land dictated the 
course they had to pursue. The arid surfaces of the Arabian 
and Syrian deserts lay between them and the fertile Mesopota- 
raian depression. They were obliged to follow the coast of the 
Mediterranean and the vales of the Syrian mountains near it for 
the distance of five or six degrees of latitude northward, before 
they could turn to the east and reach the '• Stream-land " (Na- 
harin) watered by the Orontes and the upper Euphrates (about 
36° N. Lat.). 

* Hovelacque et Herv6, Pricis d' Anthropologie, p. 5S2, sq. 

t Karl Brugmann, Comparative Orammar of the Indo-Germanic Languages, Vol. i, pp. 14-lG. 

Biiuton.] ob LA-pril 19, 

It would be rash to set a specific date, even in millenniums, for 
tliis movement. But it is safe to say that S3'ria was reached 
earlier by the north Mediterranean influx than by the Semites. 
The dialects and languages of the latter stock are more compact, 
and they contain more culture-words in common than those 
of either the Caucasic or Aryan families * — facts which indicate 
longer association in their early homes. It is not likely, how- 
ever, that the two streams first came into contact at any later 
date than 7000 B.C. 

The Semitic languages are also inflectional, but by a method 
so unlike that of the Aryan tongues that we cannot imagine any 
prolonged contact in the formative stages of their structure. 
Instead of suffix-building, first by the attachment of independ- 
ent words, and later by formative particles, the Semitic dia- 
lects have triliteral radicals which they inflect by internal vowel 

The physical traits of the Semites are marked and durable. 
The head-form is long (dolichocephalic) and the face orthog- 
nathic. The complexion, hair and eyes are usually dark, but in 
about ten per cent, of the stock, even where purest, as in Arabia, 
the complexion is blonde or reddish, with hair and eyes to cor- 
respond. The beard is abundant, and both it and the hair are 
curlier than in the Aryan. The nose is large, fleshy, and so 
paculiarly curved that it has been singled out as the most char- 
acteristic feature of the race. It is shown on the oldest Egyp- 
tian and Babylonian representations as clearly as it is seen 

The northernmost extension of the Semites was defined, on 
the west, by the range of the Amanus mountains, just south of 
the Bay of Iskanderun (N. Lat., 3G° 30').f Between these and 
the Euphrates it is not likely that they permanently extended 
beyond 37? north latitude. East of that river, the range of the 
Masius mountains, about latitude 36° north, was their northern 
limit. In very early times they had probably gained control of 

*The oldest forms of Sainitic speech, remarks McCurdy, "can be proved by the voca- 
l)les common to them all to have been the idiom of a people already well furnished with 
the rudimentary appliances of civilization." Ilislory, etc., Vol. i, p. 13S. 

tThis is the opinion of Dr. W. Max Miiller, Adenund Europa, etc., p. 310, and is sup- 
ported by a general agreement. But the date assigned by that writer for the entrance of 
t lie Arameans into northern Syria — 1-iOO B.C. — seems quite too recent, in view of the other 
elements in the case {As. u. Eur., p. '233, 234). 

1895.] 0« [Briiiton. 

the valley of the Tigris and its affluent, the upper Zab, nearly to 
the 37th parallel of north latitude and southward to its mouth. 
This was, and has ever been, their easternmost ethnic limit. 
The mighty wall of the Zagros mountains, which is described 
by travelers to look like an enormous buttress rising from the 
river plain to uphold the tableland of Persia,* and which ex- 
tends with little interruption under various names in a south- 
easterly direction from the 38th to the 30th parallel, checked 
their further advance. 

While the broad outlines of the locations of these stocks in 
western Asia are clear enough, there were a number of small 
nations near the border lines about whom much doubt still ob- 
tains. Some writers claim that they did not belong even to the 
European or White race, but to another branch of the species. 

In examining them I shall begin with 


The region near the mouths of the Tigris and the Euphrates 
(at that time emptying separately into the Persian Gulf) was 
occupied six thousand years ago by the Sumeriaus and Accadi. 
ans on the west, the Elamites and Ansanians on the east, the 
Kashites adjoining the latter to the northwest, and the Proto- 
Medes, adjacent to these, in the eastern highlands. 

What we know of the relationship of these tribes has been 
derived from a comparison of the remnants of their languages, 
and that this has not led to positive results will be clear from 
the following comparison of opinions : 

. 1. The Sumerians, Elamites, Kashites and Proto-Medes spoke 
dialects of one language, probably related to the Alarodian or 
Georgian stock (Hommel, Jensen, Billerbeck)4 

2. The Elamites, Kashites and Proto-Medes were of one 
speech, while the Sumerians belonged to a totally different stock 
(Eb. Schrader, Weisbach, McCurdy). § 

*Bellew, From the Indus to the Euphrates, p. 7. The observations of this author on the 
disposition of the mountain chains of Persia as desectlng the lines of early migration 
and acting as barriers in some instances, are well worth study. 

t For valuable suggestions and references in this part of my subject I am under obliga- 
tions to Profs. H. V. Hilprecht and Morris Jastrow, Jr., of the University of Pennsylvania. 

I Hommel, Zeitschrift fiir Keilschriflforschung, Bd. i, s. 161, 330; Billerbeck, Susa, s. 26 ; 
Jensen, Zeitschrift fiir Assyriologie, 1891. 

'i Schrader, " Zur Frage nach dem Ursprunge der altbabylonischen Cultur," in the Abh 
K. P. Akad., Berlin, 18S1 ; Weisbach, Die Achdmeniden Inschri/ten zweiter Art (Leipzig, 

Briuton .] OO [April 19, 

3. The Elamites, Proto-Medes and Ansanians were of one 
tongue. The Sumerian was totally distinct, as was the Kashite, 
the latter possibl}^ having Aryan affinities (Hilprecht).* 

4. The Kashite (to be distinguished from the Cossfean) was 
Semitic, as was the Accadian. The Sumerian was an independ- 
ent stock (Lehmann).f 

5. The Kashite, identical with the Cossjiean, was nowise re- 
lated to either Semitic, Sumerian, Elamitic or Medic (Delitzsch).| 

The " Sumerian " Question. 

In striking contrast to the above opinions. Prof. Joseph Ha- 
levy, of Paris, has for twenty years contended that there never 
was a Sumerian language, and that all which has been written 
about it is a tissue of errors. The natives of Sumer, he main- 
tains, were pure Semites. § 

This opinion claims the more attention as these alleged Su- 
merians, according to various, eminent scholars, were the fathers 
of the Babylonian culture, the creators, therefore, of perhaps the 
oldest civilization of the world. Consequently, the utmost in- 
terest attaches to their ethnic position. 

Prof. Sayce has recorded himself in these strong terms : " The 
science, the art and the literature of Babylonia had been the 
work of an early people, and from them it (sic) had all been 
borrowed by the later Semitic settlers of the countiy." || In a 
similar strain, Schrader asserts that the Sumerians were the 
founders of Babylonian culture, and that whatever else they 
might have been, they were positively not Semitic ; ^ and Paul 
Haupt has emphatically stated that to this certainly non-Semitic 
people, " the whole culture of western Asia must be traced." ** 

* Prof. Hilprecht acknowledges, however, that the Kashitic and Elamitic proper names 
have much in common. Assyriaca, p. 95. 

t Lchmann adds further and needless confusion to the question by applying the terra 
" Accadian " to the Semitic language of Babylon, and confining the " Kashitos" to the 
Semitic inhabitants of Elain. See his Shamashshamukin, Konig von Babylonicn, pp. 57, 100, 
etc. (Leipzig, 1892). 

|Delitz>ch, Die Sprache der Cossaer, Leipzig, 1884. 

§0f the numerous articles of HaK'vy it will be sufficient to refer to his " Apcr^u gram- 
matical de I'Allographie Assyro-Babylouienne " in the Proceedings of the Sixth Iiitrrna- 
tional Omgrcss of Orientalists. He there sets forth with entire clearness the method he 

!| Introduction to the Science of Language, Vol. i, p. 3. 

1[ Schrader, 7Air Frage, etc., p. 19. 

** Haupt, "Die Sumerisch-Akkadische Sprache," in the Fifth Inttrnat. Orient. Cong., 
p. 249. This distinguished Assyriologist informs me that he has not changed his opinions 
in this respect. 

1895.] ^«^ [Brinton. 

Halevy's point is, that what has been supposed to be Sumerian 
epigraphy is nothing more than another method of writing Baby- 
lonian Semitic, an " allography," or a secret writing, a " cryptog- 
raphy," used by the priests. The Sumerian graphic method 
was chiefly ideographic, or, when phonetic, it was rebus-writing 
similar to that which is found so well marked in America, and 
which I have named " ikonomatic " writing.* 

His explanations, which I cannot enter upon further, are ex- 
tremely plausible, and evidently have been making headway of 
recent years. Distinguished Assyriologists, such as Stanislas 
Guyard and Fr, Delitzsch,t have publicly announced their ac- 
ceptance of them. Careful historians, such as McCurd}^ have 
been convinced they are right. J 

The reasons are obvious. More and more Semitic elements 
are recognized in the alleged " Sumerian," until one of the sin- 
cere believers in it. Dr. Heinrich Zimmern, has expressed his 
doubt that there is a single " pure " inscription in the tongue ; § 
and another, Dr. Hugo Winkler, avers that it was already a dead 
language long before King Gudea's time, and none of the 
scribes could write it correctl3\|| If this be so, how can any- 
thing like a correct grammar be extracted out of their blunders ? 

Other adversaries of the Sumerian doctrine have pointed out 
the theory of such an early people overpowered by a foreign 
population, which absorbed its culture while preserving intact 
its own tongue, is, as the eminent Assyriologist, Mr. George 
Smith, long ago said, " without a parallel in the historj- of the 
world. "^ In every recorded instance, when a tribe has con- 
quered another of higher culture and adopted its civilization, 
the language of the conquered appears in that of the conqueror 
in numerous loan-words borrowed to express the new ideas ob- 
tained ; but, with few and doubtful exceptions, nothing of the 

* See my Essays of an Americanist, p. 213, and Primer of Mayan Hieroglyphics, p. 13. 

t Delitzsch gives his reasons in detail in his Assyrische Grammalik, pp. 61-65 (Berlin, 1889). 

J History, Prophecy and the Monuments. New York, 1894. 

I Zimmem, Babylonische Busspsalmen, p. 7 (Leipzig, 1885). He asserts that such a 
graphic method as the Sumerian could not have arisen in a Semitic tongue. 

II Winkler, Oeschichte Babyloniens und Assyriens, -p. 5S (Leipzig, 1892). Gudea may be 
placed at the most recent date, about 2750 B.C. Prof. Sayce is more cautious. He says : 
"The Aceadian {i. e.; Sumerian) had ceased to be spoken before the seventeenth cen- 
tury B. C." Introd. to the Science of Language, Chap. i. 

\ Assyrian Discoveries, p. 449 (New York, 1875). 


Briuton.] "" [April 19, 

kind appears in Bab^'lonian Semitic* What is not less signifi- 
cant, the inscriptions themselves are entirely silent about any 
such conquest.f 

Furthermore, professional comparative linguists have been 
nonplussed at the strange features of the alleged Sumerian. Its 
friends at first wished to class it with the " Turanian," espe- 
cially the Ural-Altaic, languages. The " Finno-Tartar " was a 
favorite group. But specialists in the Ural-Altaic tongues 
unanimously declared that an}' such connection was an " abso- 
lute impossibility."! Then recourse was had to the " Alarodian " 
and the Dravidian; but with no better success. So that finally 
the conclusion they were driven to was, that it was an independ- 
ent stock by itself, without affinity, like the Basque, or, perhaps, 
the Etruscan. 

There is nothing impossible in this. Historically, such 
isolated examples are numerous. But the difficulty lies in 
the alleged forms of the language themselves. They seem so 
uncouth as to cast doubts on the whole theory. One word will 
have more than fifty diflferent meanings assigned it ; the system 
of affixes is most capricious ; its supposed system of " vocalic 
harmony " is unexampled in any other tongue ; it omits a num- 
ber of sounds absent also in Semitic — a suspicious coincidence ; 
and so many disparities in its grammar have to be explained 
away by assertions of " impure " and " dialectic " texts that the 
whole assumes an air of uncertainty. § 

In view of such difficulties the question is urged. Are not 
the supposed affixes merely the phonetic determinatives of 
ideograms, which are themselves used sometimes for their ideo- 
graphic, sometimes for their ikonomatic values, just as we find 
them in the Mayan hieroglyphs of Central America? Or, if 
there is a fond which is non -Semitic in the Sumerian (a likely 
enough supposition), do not the above facts show that it is im- 

* A supposed instance is egal, palace, literally " great house " (e, house, gal, great, in 
" Sumeriaa"). But may not the few expressions of this kind, as well as the names of 
gods, Nergal, Anu, etc., merely be borrowings from neighbors? 

t Smith, uhisuprd. 

X Prof. Douner, of Helsingfors, has shown that no connection can exist between the 
Sumerian and any of the five stocks of the Ural-Altaic languages. See Proc. Fifth Inter- 
nal. Orient. Cong. A not less competent authority, Dr. Heinrich Winkler, says that it is 
"absolut unmijglich." Ural-Altdische VOlker und Sprachen, p. 1G9. 

? Delitzsch, Assyrische Grammalik, ubi suprd. 

1895.] yj- [Briaton. 

possible, in the avowedly corrupt condition of the inscriptions, 
to construct a sane grammar from such disjecta membra ? 

A careful study of the human faces on the oldest Babylonian 
monuments seems to tend strongly in favor of the Semitic the- 
ory. In the excavations at Tello and Niffer we have well-drawn 
portraits of the people who lived on the Sumeriau plain six 
thousand years ago. To my own eye, they belong wholly to 
the white race, and frequently unmistakably to its Semitic 
branch. This also is the conviction of so eminent an ethnog- 
rapher as Fr. Ratzel. In his discussion of the subject he writes : 
" All of them, even the common people, the captives and the 
eunuchs, present the Semitic traits. Xot one in the most re- 
mote degree approaches the Turanian type." * All the professed 
physical anthropologists who have examined • the ancient por- 
traitures, without prejudice, have arrived at this same conclu- 

Even if there was a Sumerian language, related or not to the 
Susie, it by no means follows that those who spoke it were the 
authors of the ancient culture. On the contrarj^, there is evi- 
dence the other way. The primal centre of progress was not 
in Sumer, not among the litoral people of the Gulf, but up the 
river, far inland. As McCurdy observes : " We can have no 
hesitation in vindicating for the region north of Babylon, the 
claim put forth in Genesis, that the seat of the earliest civiliza- 
tion was the place of the parting of the rivers." f 

A curious bit of linguistic evidence illustrates this. The 
earliest Babylonians knew no metal but copper, and used it only 
for ornaments. When they first became acquainted with pearls 
and adopted them as ornaments, thej^ called them " fish-copper," 
^. e., ornaments from fishes. This shows that they were an in- 
land people. I 

♦Friederich Ratzel, Volkerkunde, Bd. iii, s. 739 (Leipzig, 1888). Lehmann, on the other 
hand, cannot see anything Semitic in the faces from Tello ! {Shamashshamukin, p. 173). 
It is enough to say that they have full, strong beards, abundant curly hair, nose promi- 
nent and curved, the bridge raised, eyes straight, skull symmetrical and arched, in order 
to satisfy any somatologist. 

f History, Prophecy and the Monuments, Vol. i, p. 124. S Reinach, a most competent 
authority, declares that the most ancient Babylonian art "n'est pas Egyptisant," but 
arose independently. Revue Archeologique, 1893, p. 101. 

tHaupt, in his article, "Wo lag das Paradies?" in Veher Land mid Meer, lS9b. The 
copper from Tello is entirely pure, without a trace of tin. It doubtless came, as Virchow 
maintains, from deposits of this character in Trans-Caucasia. Verhand. Berliner Antltrop, 
Ges., Bd. xix, p. 336. 

Brinton.] '^'^ [April 19, 

According to Lehraann, however, the people at the parting of 
the rivers, the Akkads, were Semitic;* and Zimmern, who 
believes them Sumerians, acknowledges that they spoke a 
"younger," i. e., more Semitized dialect.f This seems to inti- 
mate that if there was a Sumerian people, its culture was 
learned from an earlier inland Semitic nation, and not the re- 
verse, as Sa3'ce and others above quoted have maintained. This 
supposition, it appears to me, would explain away more of the 
difficulties in the case than any theory yet offered ; and I do not 
remember that it has heretofore been suggested. 

The Elamites, Kashites, Ansanians and Proto-Medes. 

As will be seen above, the consensus of opinion is in favor of 
considering these as branches of one stock. 

The main difficulty is with the Kashites (Kashshu). Their 
territory adjoined Elam, and just about where it was situated 
Herodotus locates a region " Kissia," and Strabo and Pliny, a 
free, mountain bandit tribe, the Cossjei, The effort has been 
made to distinguish between these ; but the identities of both 
name and location are too complete to admit reasonable doubt 
but that the same people was intended. | The Kashites are de- 
scribed as mountaineers living in tents, just as Strabo depicts 
the mode of life of the Cossfei. 

The ancient inscriptions in the various dialects of this stock, 
to wit, the Susie, the Neo-Susic, the Ansanian, the Apirian and 
the Proto-Medic, are comparatively numerous, but it must be 

* ShamaxJishamukin, p. 57. 

fWhat is known as the g dialect. Zimmern, Balnjlmnsche Busfpsalmen, p. 7. The myth 
of the culture-hero, Cannes, lialf man, half fish, rising from the waters of the Persian 
Gulf, has, of course, no historic value, any more than that of Ea, the marine god, who 
created the first man. 

JFriedrich Delitzsch asserts that the proper names in the Proto-Medic inscriptions, 
" fast unverkennbar arischcs Geprage tragen " (Die Sprache der Cornier, p. 49). Dr. Hugo 
W^iukler says that there is "kaum eine andere Moglichkeit vorhanden," than that the 
Kashites belonged with the Medes and Elamites ; GescMchte Babylon iens. p. 78. McCurdy, 
reviewing the evidence, decides this is so, "in all probability." Iliston/, etc., p. 143. 
They ruled Babylonia six hundred j-ears and their names do not seem to be Semitic, ex- 
cept where such were adopted. Their name for Babylon was Kardtmiash. Gesenius 
long ago suggested that the Chaldees might be "the Chardim," allied to Kard. Kurd, 
names applied to Aryan peoples, derived from old Persian Kard, Ossctic, Kliard, etc., the 
ancient Aryan term for the sword or dagger, and also for iron (Schradcr, Prehistoric Ai}r 
tiquities of the Aryan Peoples, p. 224). There was a tribe, the Kaldani, among the Kurds, 
who claimed to be lineal descendants of the ancient Chaldeans (Lofius, Travels, p. 99). 
What if the primitive Babylonian civilization should turn out to be of Aryan origin 
after all? 

1895.] ^'J [Eriuton. 

acknowledged that little progress lias been made in their decipher- 
ment. The " second column " of the great Behistun inscription 
is held to be Proto-Medic (Neo-Susic). It is described as a 
tongue employing suffixes only, with at least four well-marked 
tenses, and with a kind of declension of nouns.* It has been 
declared to be "non-Aryan and non-Semitic," but there is 
nothing in its morphology as described to exclude it from the 
Aryan family. 

It has been the custom with most Assyriologists to take for 
granted that all the tribes mentioned, as well as others inhabit- 
ing Elymais and Media in early da^'S, as the Parsua, Anduia, 
Namri, Ellipi, etc., were neither Aryan nor Semitic. In this 
spirit Dr. Winkler, in his lately published History asserts that 
it was not nntil the reign of Psalmaiiasar II (about 850 B.C.), 
that the Aryan Medes (the Western Iranians) appear in Sem- 
itic history, their predecessors in the region having been non- 

It is difficult to see any sufficient grounds for such an assump- 
tion. The Cosssei and their northern neighbors, the Mardi, 
whom Strabo describes, were certainly Aryans, and if the Kas- 
shu were the ancestors of the former, they, too, were of Aryan 
lineage. The Elamites of " Shushan the palace " maintained 
their power till a late date ; their descendants were the Uxii of 
the Alexandrinian conquest; and these were surel}^ not of an 
alloph3'llic stock. They were either Semitic or Ai'yah. A 
thousand years B.C. the powerful and warlike Minnean nation 
mentioned by the prophet Jeremiah was on the southern shore 
of Lake Urumia, and that they were of Aryan speech is at- 
tested by such names of their kings as Iranzu, Ulusunu, etc.| 
The theory which has been advanced by some that the Ossetes 
of the Caucasus, who speak an archaic Aryan tongue related 

*F. H. Weisbach, Die Achamenldenischen Inscliriften zweiter Art, p. 46 (Leipzig, 1890). 
Inscriptions in Neo-Susic date between 1100 B.C. and 370 B.C. Weisbach calls the lan- 
guage in which they are written " Finuo-Tartaric, richly mixed with Aryan words." Id., 
p. 11. On the other hand, Dr. Heinrich Winkler, an excellent authority, formally denies 
that it can be classed with any Ural-Altaic language. Urcd-Altaische ViJlkcr and Sprachen, 
p. 169. As Weisbach has shown the linguistic unity of Ansaulc, Susie (Elamitic), and 
Neo-Susic (old Medic) in his Ansanische Insclirijlen, 1891, p. 34, this applies to the whole 

t Geschichte Babyloniens imd Assyriens, s. 242. 

X Jeremiah, chap, li, ver. 27. An admirable article on " Das Reich der Manmier," by 
Waldemar Belck, may be found in the Verhand. Berliner Anthrop. Ges., 18i)4, p. 479, sqq. 
He does not identify their ethnic relations, but to me the proper names admit of no doubt 
that they were Aryans. 



[April 19, 

to Iranian, were in fact descendants of the Proto-Medes, driven 
from their southern homes, is deserving of respectful consider- 

Whether the Guti and the Lulubi who possessed the valley 
of the Tigris on the east of the stream (from Lat. 34° to Lat. 
37°) belonged with the Susie group, the material is too scanty to 
decide. Their writing was in Babylonian, and their royal names 
largely Semitic, but neither of these facts is conclusive, j" While 
Prof, Hilprecht has classed them with the Semites, Oppert has 
suggested, not without some show of reason, that the name 
" Guti" has an Aryan sound, like Gothi, the Goths, and there- 
fore that the tribe itself may have been of this blood. | 

The vocabularies of these languages might be supposed to 
give definite information concerning their relationship. The 
material in the Kashite, Susie and Medic is, however, too scanty 
to admit of satisfactory comparison. Of the Sumerian, at least 
one-third the words are acknowledged by believers in the tongue 
to be of Semitic origin. Others, as balag, axe (Greek, rrc/ls/ti?), 
gushkin^ gold (Armenian, os;(fi), are admitted to be Ar^'an. To 
these, it seems to me, should be added the well-known woi'd tur, 
son, which is also Susie, and belongs in the oldest gdthds of the 

The numerals, except in Sumerian, have been very imperfectly 
ascertained. The following lists will serve for comparison : 








dish, ash, 

mill, man, dab, tag, kash, 

pish, esh, ush, 

Urn, lavi, 

d, ia, 



us, sa, 

















ar, arthi. 
ori, dziri. 
sami, sami. 
xutJii, x?(/. 
tkhusi, Hskhwaash. 
rua. ara. 




nish, sha7ia, mdn. 






atln, withi. 
otsi (=2 X 10). 

* Mems. de la Societc d' Anthropologic de Lyons, 1891. 

t Winkler believes that the Guti had a tongue of their own, but wrote in Semitic. Ge- 
schichie Babyloniens, p. 82. Hilprecht gives reasons for holding that Semitic was the 
native language of both Guti and Lulubi. Old Babylonian Inscriptions, pp. 12-14 (Phila- 
delphia, 1894). 

X Revue Archxologique, 1893, p. 363. 

gin the Avesta, the TCira people are Iranians (not Turanians). See W. Geiger, ubi 
supra, p. 32. In Persian legend Tur and Era were brothers, sons of Fredfm, the founder 
and father of the Iranian tribes. The Armenian os-t-r, son, preserves the radical. The 
first syllable corresponds to the Greek us. The second j)robably defined the oldest son, 
and hence came to have the sense of chief, prince. Tliis analogy has been suggested to 
mc in part by Prof. Llilprecht. 




A few common wordstaken from the tougues mentioned, with 
their correspondents in the Caucasic and Brahu dialects, will 
show how slight is the lexical similarity between them. 


: C0S.S.EA.N. 





'.. Georgian. 


vs. Brahu. 





f mare, 
\ katsi. 





f sunkik, 
(■ zunkuk. 




hurt, ubri, 




meli, kukla, 



du, dumu 

f tdam, 
' (■ sim mash, 


st-r, sis, 

, arsh, ush, 










, ana, 

f ilulu, 
*- dagigi. 













bik, kit. 




f hameru, 
(■ saribu. 





kur, ki, 





mish (place), 


gcr, imi, 



























didi, gangal, 














In such ethnographic questions the elements of historical 
connections and duration of time enter as significant factors. 
For that reason I insert the following synoptical table of 

Protohistoric Babylonian CHRONOLoaY.* 


4000. King Ur-Nina at Lagash (Tello). 

3850. Alusharshid conquers Elam. 

3800. Sargoa I rules ceatral and southern Babylonia and Elam. 

3750. Naram Sin, his son, at Sippar. 

3000. Ur bau rules at Lagash. 

2800. Supremacy of the Kings of Ur. 

2750. Gudea (Nabu) rules at Lagash. 

2350. Babylonia is conquered by the Elamites. 

2300. Abraham departs from Ur. 

* The dates have been kindly revised for me by Prof. Hilprecht. They may be regarded 
as the minimal which can be assigned. 

Briuton.] "^ [April 19, 


2350. The Elamites, uader Cliedar-laomer, enter Palesliae and are de- 

2250. Rim Sin, last king of Suraer and Accad. 

22i0. Chammurabi expels the Elamites and rules both north and south 

1730 to 1140. A dynasty of Kashite kings rules at Babylon. 

1350. Babylonia is conquered and reduced to a tributary by the Assyrians. 

No one can glance over this table without being impressed 
with the long and close connection which the Elamitic and 
Kashitic tribes had with the Bab^donian Semites. This must 
have left deep ethnic traces on all three stocks. 

The Anatolians (Hittites). 

The region included in Cappadocia, Galatia, Cilicia and west- 
ern Armenia was known to the Babylonians from very early 
times as mat Hatte^ " the land of the Hittites," a people who 
bore the same name in the Egyptian documents, Beta* They 
were non- Semitic, but their precise affiliations have not yei been 
decided. They had a syllabic, hieroglyphic writing, which 
probably arose in Cilicia,'}' and which has been in part inter- 
preted, but not yet sufficiently for extended comparison. 

It is almost certain that the same people extended westward 
through Lycaonia, Pisidia, Lycia, Caria and Lydia;| that is, 
along the whole south coast of Asia Minor to the ^Egean sea, 
and northward to the boundaries of Phrygia and Mysia, which 
were inhabited by tribes of Hellenic origin. 

This southern family has been pronounced by Sayce to be of 
" Mongolian " connections ; by Hommel and also at times by 
Sayce to be " Alarodian," i. e., Georgian ; by Pauli and Toma- 
schek to be a wholly independent linguistic stock, to which the 

*The earliest reference to the Hittites in the annals of Mesopotamia is to a conquest of 
Akkad by ''the king of 'Hatti" (or 'Hati), about 3S00 B.C. See authorities quoted by de 
Morgan, Mission Scieiitifique au Caucase, p. 193. This author believes that about 4000 B.C. 
the "allophyllic white stock," i. e., the Caucasic peoples, overran much of western Asia. 
Ibid., p. 197. 

t Dr. W. Max Muller claims that it certainly did. Asiat tind Europa, etc., p. 3i0. 

];Tlie Philistines who invaded Palestine towards the close of the second millennium 
B.C. quite certainly belonged to this stock, and not to the Cretans, as has lately been re- 
asserted by Mr. Arthur J. Evaus (I'mc. Brit. Soc. Adr. of Science, 1891, p. "TO. Compare 
Dr. W. M. Muller, u. s , p. 3S7, S77.). There were never any Hittites proper (/. c, from 
Cappadocia) settled in Palestine. The Orontes marked their furthest soutliern limit. 
Ibid., p. 221^ 

1S95.] '^* ' [Briutoii. 

former gives the name " Pelasgican," and argues that its European 
connections were the Pelasgi and the Etrusci.* On the other 
hand, Fr. Miiller, Mor. Schmidt, G. Radet and P. Jensen have 
concluded that it is some remote, not clearly defined, member of 
the Aryan family. f While J. Halevy, on the strength of the 
inscriptions from Sindjirli, has claimed the Hittites who once 
lived in that region as Semites. 

Recent archa.^ological researches in Paphlagonia present evi- 
dence that before the arrival of Greek colonies from the west 
this territory was peopled by the same stock ; and at the height 
of their power they may have controlled a large portion of the 
eastern shores of the jEgean sea. This was about 1200-1500 
B.C.; and it has been argued from a variety of evidence that 
near the former date they were conquered and scattered or ab- 
sorbed by their Semitic, Egyptian and Hellenic foes. Prof. 
Ramsay and others have identified them with the Amazons of 
the Homeric legends on reasonably good grounds | 

It is quite likely that mat Hatte was a very vague phrase to 
the Assyrian mind; and it is wiser not to employ " Hittite " as 
an ethnic term. It has been proposed (by whom first I kuow 
not) to designate collectively the tribes above named as related, 
by the term " Anatolians," from the ancient name of Asia Minor ; 
and I adopt this appropriate suggestion. Perhaps some of the 
easternmost and southernmost of the so-called Hittites did not 
belong in the Anatolian group, but those in most of Cappadocia 
and Cilicia in all probability did. 

At various times, after and probably before the dawn of 
history, the Anatolian group proper extended its conquests 
southward ; and it is the opinion of Hoernes§ and others that 
they were the pi"e-Semitic inhabitants of the whole of Syria. 
It is even possible, as Mariette and Hilprecht || have suggested, 
that the Hyksos d^y^iasty of Egypt in the second millennium 
B.C. was an advanced outpost of the group, though this at 

* Fanli, Elne Insdirift von Lemnos, p. 79; Tomaschek, Die Ufbevolkemng Kleinasiens, in 
the Mlltheilungen of the Vienna Anthrop. Soc. for 1892. 

fDr. Jensen's article was published in the Sunday School Times (Philadelphia), April 
1, 1893. 

t See a series of articles on " Die Paphlagonischen Felsengriibsr," by Lt. von Kannen- 
berg, in the Globus, Jan. and Feb., 1893, especially p. 121, note. 

§Dr. Moritz Hoernes, Die Urgcschichte des MenscJien, p. -154 (Vienna, 1892). 

il Hilprecht, Assi/riaca, p. 130 (Boston, 1891). 

PilOC. AMER. PHIL03. SOC. XXXIV, 147. M. PRINTED M ^Y 20, 1895. 

Brinton.] • »Jo [April 19, 

l^resent rests as a surmise onl}'. That the Kashites and kindred 
tribes on the lower Tigris were distant members of the same 
group has been suggested bj- Hommel and Hilprecht, but with 
the material difference, that the former, defends the connection 
with the Caucasic, the latter with the Ar^'an linguistic stock. 

When we combine Avhat we know of the physical type and 
the language of this ancient people there would seem to be 
evidence enough to assign it its ethnic position. 

The type has generally been studied from the local monu- 
ments and the Egyptian records. The portraitures on the latter, 
especially of enemies, are often either conventional or carica- 
tures. When we see the Hittites shown with " yellow or red 
complexions, receding foreheads, oblique e3'es, protruding upper 
jaws and high cheek bones," * and all very much alike, we may 
be sure that both motives were present. The delineations on 
their own monuments are quite different and much higher, more 
Aryan, in character.f 

It is a mistake to suppose that the so-called Hittite art was 
altogether borrowed from their Semitic neighbors. While the 
old Chaldean influence is visible in it, there is also a mai'ked 
element of originality which should not be overlooked. The 
motives of the latter constantly recall Aryan inspiration and 
forms. I 

More trustworthy than sculpture are the bones from the oldest 
graves of the region. In examining these, Dr. von Luschan 
made an interesting discovery. Pie found that a peculiar tvpe 
in early times extended over southern Asia Minor, from the 
^gean east to the Euphrates, and northeast into Armenia. The 
skulls were remarkably broad and high, and the bones showed 
a people of short stature. In other words, he discovered just 
the type of the globular-headed, short Celts of Central Europe. 
He went further. He found that in the more sparsely inhab- 

*See McCurdy, History, Pmpfteci/ and the Monuments, Vol. i, p. 193. 

1 1\. number of them are given from various sources by W. ISfax Miiller, Asicn tind 
Eiiropa, pp. 825-330. They are generally painted with reddish hair, which is worth not- 
ing, but may be conventional. The absence of beard indicates the custom of shaving. 
On tlie conventionality of the Egyptian artists see the same writer in the Papers of the 
Oriental Club of Philnddphia, p. 78 (Boston, 1S91). The ruins of the ancient Pteria are 
supposed to ofl'er ihe purest examples of native Hittite work. 

t " L'influence qui & preside aux arts chez ce penple est purement chaldeo-babylon" 
ienne, et non assyrienne; mais en meme temps elle conserve son originalit(5." De Mor- 
gan, Mission Scientifltjue au Caucase, p. 198. 

1895.] '^•^ [Briuton. 

ited portions of the country there still live a shy, secluded 
people,, the Taktadschy, who preserve just these traits, and he 
at once noticed their similarity to the Auvergnats and Savoy- 
ards. They are recognized as the descendants of the most 
ancient inhabitants, and certainly present their characteristics.* 
The inscriptions and local dialects of Cappadocia and Lycia 
preserve some expressions which appear to me to be of the 
Lesghian group of the Caucasic stock ; as 





thladi, wife. 



gedai-mi, son (thy), 










nine, dangar, udczgo. 

These indicate that at some time in the past there has been 
an impermeation of Caucasic elements into the Cappadocian 
population. f The Taktadschy have adopted the modern Turk- 
ish, at least for intercourse with the world. 

The Anatolian inscriptions proper seem as likely to be in 
Aryan as in any other stock. The personal pronouns mi and ti 
are surely Aryan, and not " Alarodian," as Hommel argues ; | 
they are the English-Aryan me and thee ; the word for son, s-t-r^ 
corresponds to the Armenian iislr ; " siris," king, is Ar^-an, and 
so on § 

The strongest evidence is in the ancient place-names. These 
show peculiarities in western and southern Asia Minor which 
have been repeatedly commented upon. A large number of them 
terminate in -anda (-enda, -inda, -onda) or in -ess (-assa, -essos, 
etc.). They extend westward into Thrace and Macedonia, prov- 
ing a European connection in prehistoric times. Pauli, Toma- 

*See Von Luschan's article, " Die Taktadschy," in tbe Archivfiir Antkropologie, 189:5. 

tTomascliek quotes some of tliese from the Glossary of the Cappadocian dialect lately 
published by Capolides, which work I have been unable to see. Tomaschek does not 
offer any analogies for them. Others belong to the "Lyciau inscriptions," of which a 
Corpus is soon to be published by the Imperial Academy of Vienna. 

Jin the Archivfiir Antkropologie, Bd. xix, p. 251. 

§See the article of Dr. Jensen above referred to for other instances ; and also his replies 
to the criticism of Prof. Sayce in the Academy, 1894. Of course, within the territory of 
the Anatolians we may expect to find both Semitic and Caucasic names and inscriptions, 
as it was the meeting-ground of the three stocks for thousands of years before history 
began, as it has been ever since. 

Brintou.] lUu [April 19, 

schek and others claim that they cannot be analyzed as of Ar^-an 

Such an opinion seems to me without foundation. We find 
such place-names wherever the Celtic stock of central Europe 
left its traces. For the termination in -ess, I need but instance 
Yindouissa, Yogessus, Sigonessus, Bodiocassus, etc. Its sig- 
nification is well known. It means " the seat " (sedes, sessio^ 
positio) of the person or tribe, and in this sense was especiall}' 
employed as a suffix in the Celtic dialects. f 

The termination -anda in the form -anta or -ante is a familiar 
Celtic suffix of tribal names, as Bi'igantes, Trinobantes, etc. 
From these were derived place-names, as Carantia, Brodentia,etc. 
The later terminations in -anza or -enza, as in Braganza, Pia- 
cenza, etc., were corruptions of this, as was also the German 
termination in words like " Pegnitz," etc.| 

Many other proper names of places and persons from south- 
ern Asia Minor have lately been analyzed b}' M. Georges Radet, 
and his researches appear to place beyond doubt these two 
theses — 1. That the original Anatolians constituted an ethnic 
unit; 2. That they spoke a tongue of Ar^'an affiliation. § 

Many of these names have a Celtic physiognomy. Thus the 
Hittite roj'al names, Thargathazas, Tarthisebu, etc., simulate 
the Gallic Thartontis, Turones, etc., in which the prefix tar {thai% 
tar or dor) means " above, across," and by metaphor, superior, 
leading, etc.|| 

A more striking coincidence is offered hy some religious 

It is generally conceded that the Ephesian Diana was origi- 
nally a " Hittite " deity, and that her name Artemis is an Ana- 
tolian word. It is also known that the original form under 
which she was worshiped was that of a black conical stone, 
thought to have been a meteorite. Now in Celtic arlan means 
" a stone," and it often forms a part of proper names, as Artgal, 

* Paiili has been industrious in collecting such place-names. A long list will be found 
in his IiiHnhrift von Lenivos, above quoted. 

fTliis is the explanation of Zeuss, Grammatka Ccltica, pp. 61 and 747-749. I am sur- 
prised that it has been overlooked. 

I See Zeuss, Grammatica C'dtica, pp. 759, 7G0. It has been suggested that this termina- 
tion is the Old Indian inda, sindim, river, whence Indus, etc., applied to tribes, towns, 
etc., on a river. 

I See the Rtvac ArcMologiquc, Tome -xxii (1893), p. 209, sqq. 

II The Celtic tar esai (see above; is translated " super locum, in loco." Zeuss, «. s., p. 613. 

1895.] J-'Jl [Brinton. 

Artbrnn, Artobriga, etc. Still more : when St. Domitian under- 
took the conversion of the Celtic Segusiani, who lived in the 
Auvergne mountains in France, he found what appears to have 
been a sacred rock among them which was called Artemia ! *^ 

I have already referred to the Amazons as a Hittite class of 
priestesses. Lieut, von Kaunenberg derives their name from 
the Circassian 7naza, moon ; but this Circassian word is not from 
a Caucasic, but an Aryan root, Sanscrit masa, " the measurer," 
and was applied to the moon as the measurer of time, as Von 
Erckert has abundantly shown. f The Amazons were indeed 
the priestesses of the moon, but their name is Aryan strictly 
and refers to their being devoted ad niasam, to the moon, as the 
measurer of the nine months of pregnancy. 

This identification explains how it happened that in the yenv 
279 B.C. a hoi'de of Gauls from central Europe crossed the Hel- 
lespont, and proceeding to central Asia Minor, settled in a portion 
of the ancient mat Halte^ from them ever since known as 
" Galatia." | There they lived, retaining their own tongue with 
the usual Celtic tenacity so completely that St. Jerome, seven 
hundred years afterwards, says they were the only people of his 
day in the whole of Asia Minor who did not speak Greek. § 

To sum up, then, the view I advocate is, that the Anatolians 
proper were of the Celtic stem of the Aryan race ; that several 
thousand years B.C. they came from the west and occupied the 
valley of tiie Halys and more or less land to the east and south 
of it, driving out, or subjecting and retaining, an earlier popu- 
lation of the Caucasic (Lesghian) stock; that about 1200 B.C. 
they were themselves overwhelmed by Semitic and Hellenic ad- 
versaries ; that a portion of them rejoined the Celts of Europe ; 
and that it was to make good some traditional, ancestral claim 
that the descendants of these in 279 B.C. again possessed them- 
selves of the basin of the Halys. || 

* " Usque ad petram quae Artemia dicitur." Zsuss, GrammaUca Celtica, p. 78. 

t Die Spracheji des Kaukasisclien Stammes, Bd. i, s. 103. 

I " Galatse" is from the Cellic root gal, violeut, and is translated by Zeuss " viri piig- 
naces armati." Oram. Celt., p. 9&3, note. The authorities on this invasion are well 
collated in Schliemann's Ilios. 

§This also explains the difficulty commented on by Dr. John Beddoe (The Races nf 
Britain, p. 22) that various local names in Galatia and its neighborhood anterior to the 
arrival of the Galatians appear to be from Celtic roots. Niebuhr's theory that the Gala- 
tians were Teutons has now, I think, no defenders. 

IThe assertion of Scbliemann (in Ilios, p. 120), that " No Aryans were settled east of 
the Halys before the eighth century B.C.," is possibly true if confined to Aryans of Hel- 
lenic descent, but certainly not as a general statement. 

Potts.] W^ [j^pril 19, 


My general conclusions are : 

1. That there is no evidence of a prehistoric, non-Eurafrican 
race in western Asia. Its soil has alwa3's been possessed either 
by the Caucasic, the Semitic or the Aryan branches of the White 

2. There are distinct signs that the Caucasic stock in prehis- 
toric times extended over large areas south of their present 
homes, and were driven north b}^ the attacks of the Ar^-ans and 

3. The chains of the Amanus on the west, the Masius on the 
north and the Zagros on the east have been from immemorial 
eras the limits of dui'able ethnic impressions b}' the Semites. 

4. From the Zagros to the Pamir, the Ar^'an stock occupied 
or controlled the land at the dawn of histoiy. Medes and Proto- 
Medes were alike' Arj^ans. 

5. The civilization of Babylonia ai'ose from some branch or 
blend of the White race, and not from any tribe of the Asian 
or Yellow race, still less from the Dravidian or Black races. 

6. The Anatolian group of Asia Minor were allied to the 
Gallo-Celtic tribes of central Europe, and preceded by probabl3' 
several millenniums the Hellenic mio-rations into Asia. 

Biograpldeal Sketch of the Hon. Thomas H. Dudley, of Camden, N. J., 
who Died April 15, 1892. 

By William John Potts. 

{Read before the American Philosophical Society, April 19, 1S95.) 

Thomas Haiues Dudley, born 10th mo. 9, 1819, died 4th mo, 15, 1893, 
elected a member of the American Philosophical Society 10th mo. 15, 
1880, was descended from Francis Dudley and Rachel Wllkins, his wife, 
a member of the Society of Friends who came from the Parish of St. 
Peter, Wolverhampton, Staffordshire, about 1730. Francis Dudley was 
the son of John Dudley and Mary Arnej^ of that parish, who were mar- 
ried in 1708. Another account says the name of his mother was Jane 
Dudley. John, the English ancestor of this New Jersey family of Dud- 
ley, died in 174G. In the parish register of St. Peter's he is named as 
"singing man and clerk." 

1895.] 103 |-potts_ 

Francis Dudley, the eldest son, so tradition says, came over with Nathan 
Middleton, and shortlj'" after married Rachel Wilkins in 1733, settled at 
Evesham (the "Vale of Evesham," as the early settlers called it in mem- 
ory of their old home in England), Burlington county, N. J. This pro- 
genitor of the name in this Slate died in the early part of 1782 at Eves- 
ham. We find his will on record in the Secretary of State's office at 
Trenton, and that of his widow Rachel a few years later, in 1786. He 
-leaves his three sons goodly farms, upon the metes and bounds of which 
he dwells minutely with all the pride of a Saxon landholder. In this 
connection we are reminded of the eloquent words of Mr. Blaine in his 
oration on President Garfield, which are equally applicable to Mr. Dud- 
ley. Mr. Blaine says he "was born beir to land, to the title of freeholder, 
which has been the patent and passport of self respect with the Anglo- 
Saxon race ever since Hengist and Horsa landed on the shores of Eng- 

Thomas Dudley, son of Francis, married Martha Evans, 11th mo. 27, 
1762, of an old and respectable family among Friends. They had ten 
children. Evan Dudley was the ninth child ; he was born 1st mo. 1, 1783, 
married Ann Haines and died 3rd mo. 21, 1820, aged thirty-seven years."* 

Tiiomas Haines Dudley, the subject of this biography, was the young- 
est child of this marriage. His early youth was passed in Burlington 
C(juuty, where he was born, working upon his mother's farm. She was 
early left a widow with four children. She was a desceadant of Richard 
Haines, of Aynlioe, Northamptonshire, whose children came to Burlington 
county, N. J., in 1683 ; thus we see Mr. Dudley had a claim to early Ameri- 
can ancestry on both sides of his family. For some years lie taught school 
in the vicinity and saved sufficient money to begin the study of law under 
William N. Jefiers, a lawyer of good standing in Camden. During this 
period, while he was returning from a night school late in the evening, 
an incident happened which we have often heard him relate without anj"- 
thought of our application of it to himself. It showed the same determi- 
nation and courage which was the ruling trait of his life and the cause 
of his success. Passing at twelve o'clock at night over a lonely road by 
a graveyard, he saw in the grounds what seemed to him, the more he 
gazed upon it, to be the figure of a human being in white, moving and 
bending toward him. Though so frightened that his teeth chattered and 
his knees fairly knocked together, he determined to go forward and ex- 
amine it. Climbing the fence, he was strongly tempted to go back ; he 
sliook with fright, the thing seemed so supernatural in the moonlight, but 
reasoning strongly within himself, "there is no such thing as a ghost," 
he determined to push on, and conquering all his fears, pressed forward 
and found that the weird figure was a sheep with its horns caught in the 
bushes, moving up and down in its efforts to get free. 

* We are indebted to Miss Henrietta Haines, of Moorestown, N. J , and to Miss Martha 
Evans Bellangee, of Asbury Park, N. J., for valuable genealogical data, and regret that 
limited space does not permit us to give other details. 

Potts.] ' W4: [April 19, 

Between fifty and sixty years ago there was more belief in ghosts than 
now, and when we consider Mr. Dudley was then a young man, brought 
up in an atmosphere in which this belief was not uncommon, the circum- 
stance was one that few — ulone at such an hour in the middle of the night, 
in a lonely country graveyard — very few, indeed, would have stopped to 
investigate. His description was much more graphic and awe-inspiring 
than we can give, and was related to the writer as an instance that we 
must not be iufltienced by groundless (ears in what reason t<ills us is 

Among Mr. Dudley's papers is a draft of a short article by him, signed 
"Many Citizens," probably one of his first political efforts. It was pub- 
lished in the United Stiies Gazette during the year 1842. Tills concerns 
the removal ot Judge Philip J. Gray from the office of Surveyor of the 
Port of Camden. He was a nian of character, highly respected, and was 
afterwards reinstated by Zacliary Taylor. President John Tyler is taken 
to task for this removal as being inconsistent with the views expressed in 
his inaugural address to the people of the United States, April 9, 1841, 
where he says, "I will remove no incumbent from office who has faith- 
fully and honestly acquitted himself of the duties of his office, except in 
such cases where such officer has been guilty of an active partisanship, or 
by secret means, the less manly and therefore the more objectionable, has 
given his official influence to the purposes of party, thereby bringing the 
patronage of the Government in conflict with the freedom of elections." 

In 1843 Mr. Dudley held the two offices of City Clerk and City Treas- 
urer of Camden when aged twenty-three. 

When twenty-four years of age we find him taking an active part in 
the Clay campaign as Secretary of the Clay Club of Camden ; August 29. 
1844, drawing up the minutes of the District Clay Club Convention, held 
at Bridgeton at that date, as its Secretary ; Dr. Ephraira Buck, President, 
associated with men some of whom were to become famous in the folate, 
namely, Abraham Browning, A. G. Cattell, Dr. E. Q. Keasbey, Charles 
P. Elmer and others. 

Among his papers is a rough drawing of a " Clay Cabin," a curiosity to 
the present generation. It was located at Fourth and Market streets, Cam- 
den, and these few details are worthy of being recorded for the history of 
politics in this vicinity in what was a very exciting campaign. Tliis 
"cabin " of those primitive political daysof half a century ago was "46 feet 
deep and 25 feet front," with, of ccuirse, a flagpole, made in the early 
part of the year 1844 for the Camden Clay Club. The building came to 
a little more than the contract, costing in all $155 " 32 benches at 50 cts. 
pr. peas," the carpenter's bill calls for, which gives an idea of Clay's 
political following in the neighborhood. Allowing five persons to a 
bench, we may conclude "the cibin " held 160 persons. Mr. Dudlc}' 
seems to have been ac ive in all of this organization. A good speech of 
his, made on the occasion of a flag presentation to this organization, has 
been preset ved. It will be remembered he was then but twenty-four, 

1895.] 105 [Potts. 

and at that yontliful age he takes strong ground for the protection of 
American industry. His first child, wlio died in infancy, was named for 
Henry Clay. This was the early school of one who was afterward to 
have a much more enlarged sphere. 

With his hard-earned savings and the money he had obtained by mort- 
gnging his farm to study law, he at last passed his examination in 1845, 
and having been admitted, retired to his room at his boarding house in 
Camden, shut the door, tlirew himself on the bed greatly depressed, won- 
dering where his bread was to come from without a single client, when 
there came a knock on the door and a client appeared in the person of 
Mr. Benjamin Cooper, of Camden county, engaging him for a case of 
which there were perhaps few men able or willing to undertake, from its 
difficulty and danger, in which all the instincts of humanity required a 
speedy action. A free colored family of Burlington county, personally 
known to Mr. Dudley, had been kidnapped into slavery, a mother and 
three children, and had been rapidly driven away on the road South. 
Membeis of the Society of Friends of Burlington county hastily met 
together and subscribed, it is said, a thousand dollars to buy back the 
woman and her children. The difficulty then arose, who was to pursue 
the fleeing kidnappers and their victims and redeem the captives, a most 
dangerous task in those days for a Northerner to venture across the bor- 
der on such an errand of mercy and of justice. 

Mr. Cooper informed his coadjutors that he knew such a man, who had 
just passed the bar, whose sympathies were with the Abolitionists, and, 
above all, possessed the energy and determinatiim necessary; who knew, 
besides, the captives, as the woman had often worked on his mother's 
farm when he was a child. Disguising himself in the character of a slave 
trader, who were often Morthern men from the borders, Mr. Dudley pro- 
cured a large broad-brimmed hat, a whip, and taking a pair of pistols he 
followed the track of the fugitives and was so fortunate as to discover 
them near the Head of Elk, in Maryland. He gave out that he was from 
a distant part of the country buying slaves to take South. The sale was 
not accomplished without its dangers, for presuming he must have a large 
sum of money with him, he overheard a plot to rob him, and sat up all 
night in the hotel with his pistols before him on the table. Keeping up 
the character of a slave trader, he had behaved so roughly to the woman 
and her child that they did not recognize him and took him for what he 
pretended to be. He ordered them to be locked up safely until he could 
take them away in the morning. The poor woman, overcome with fear, 
reluctantly fallowed. Making a detour south to deceive the kidnappers, 
it was not until on the boat at Wilmington, Del., that he asked the poor 
creature if she did not know him, and received for a reply, "All she 
wanted to." Her fears turned to joy when he said, "Don't you remem- 
ber Nancy Dudley's little boy, Tom, who used to play pranks on the 
cows you milked at Evesham and make them kick the pail over? " And 
when he told her she was going home, her happiness can be imagined. 


Potts.] WK) [April 19, 

We give below a copy of the deed of sale,* with a feeling of earnest 
thankfulness that a bill for a slave is no longer a possibility in this coun- 
try. Of the other children, a boy and a girl, it is said the boy was adver- 
tised for sale in Baltimore, and was bought by Mr. Dudley for ninety dol- 
lars, before the sale came olf. The girl was purchased by a lady in Balti- 

The West Jersey Mail, a weekly paper of Camden, records his marriage 
in its issue of Wednesday. March 11, 1846, as follows : " In this city, on 
fourth day evening last, 4 inst, by Friends' ceremony, Thomas H. Dud- 
ley to Emmaline, daughter of Seth Matlack." 

She was a faithful and devoted wife, the mother of three children, who 
survived infancy — Edward, Mary, and Ellen. Mrs. Dudley died at 
Madrid, Spain, February 9, 1884, regretted by all who knew her as a 
woman of a happy disposition and kindness of heart, with many qualities 
serviceable to her husband in his career. 

In July, 1848, he was admitted a counselor-at-law. While practicing 
law and engaging in politics his acquaintance began with such men as the 
late Henry C. Carey, David Davis (afterwards Judge of the Supreme 
Court of the United States), Judge Ephraim Marsh, and others active in 
political life, which acquaintance ripened into friendship and lasted to the 
end of their lives. 

In the beginning of the decade of 1850 we find among his correspond- 
ence, numerous letters in the minute hand of the eminent writer on the 
tariff, Mr. Carey, above mentioned, largely upon this subject, of whom 
he was an apt pupil. 

In 1851 he was elected City Treasurer of Camden, and in the years 
1856 and 1857, City Solicitor ; in 1856, Chairman of the Republican State 
Executive Committee of New Jersey. 

Mr. Dudley was one of the number of those saved in the burning of 
the ferryboat J^ew Jersey on Saturday evening, March 15, 1856. This 
calamity was one of the most terrible which had ever occurred in this 
vicinity. It was brought prominentl3f before the inhabitants of the two 
cities, Camden and. Philadelphia, b}' the drifting of the steamboat in 
flames, in lull view of thousands of spectators from both sides of the 
river, who could see the unfortunate passengers when near Philadelphia 

* Know All Men by These Presents that I, William E. Chance of the county of Caro- 
line, State of Maryland, for the consideration of one hundred and fifty dollars current 
money, to me in hand paid by Thomas H. Dudley of the State of New Jersey, the receipt 
whereof I hereby acliuowledge, have granted, bargained, sold, aliened, and delivered, 
and by these presents do grant, bargain, sell, and deliver unto the said Thomas H. Dud- 
ley my negro slave Maria Johnson and her cliild Susan about 16 months old, which said 
slaves ISIaria and Susan I will warrant and defend to the said Thomas H. Dudley, his 
executors and administrators and assigns against me, my executors and administrators 
and against every other person or persons whatsoever. In Witness Whereof I have here- 
unto set my name and atlirmcd my seal this eighteenth day of October in the year of our 
Lord one thousand eight hundred and forty-tive. 

In the presence of | Signed, William E. Chanxe. (Seal) 

I. M. Beknaud. J 

1895.] J-"' [Potts. 

leap one by one into the water, driven over by the fire, and could dis- 
tinctly hear their cries. The solemn sound of the State House bell, the 
ringing of the firebells in both cities, and the lurid glare which lighted up 
the Delaware, added to the horrible scene, of which the writer was one of 
the eye-witnesses from the Camden shore. The pilot box was the first 
part of the vessel to catch, and consequently the boat soon became un- 
manageable. Loaded with heavy wagons and a hundred passengers re- 
turning to their homes in Camden, nearly fifty persons, it is said, were lost. 
Finally driven by the flames, Mr. Dudley, throwing away his overcoat to 
sink more easily and avoid the paddle-wheels which struck many, sprang 
as far as possible from the side of the vessel, and came up in a mass of 
crushed ice, which gave but a partial support. It was in this situation that 
he saw many leap into the water, their clothes on fire and their cries most 
agonizing — a scene which naturally had an effect upon his nervous sys- 
tem, and one never to be forgotten, of which he rarely ever spoke. Shout- 
ing until his cries grew faint, he was despairing and overcome with cold, 
when several men in a boat which put out from the Philadelphia side, res- 
cued him, and he was carried in a state of apparent death to the hotel at 
Arch street wharf, where all efforts to bring him to life seemed in vain. 
Mr. Albert S. Markley, of Camden, a well-known director in the Camden 
& Amboy Railroad, happening in, recognized him, and after long and 
persistent efforts, though told it was no use, the man was dead, restored 
him to consciousness. Mr. Dudley was then in his thirty-sixth year. 

In 18'j0 he was Chairman of the State Executive Committee of New 

"In 1860 he was chosen as one of the Senatorial delegates from the 
State at large, in the memorable convention at Chicago, which nominated 
Abraham Lincoln for President. He was a member of the committee 
which framed the platform adopted by that convention, and it was he 
who introduced the plank favoring incidental protection to American 
manufactures and was mainly instrumental in carrying it through the 
convention. He supported Mr. Lincoln as a candidate for nomination, 
in opposition to Mr. Seward, and took a prominent part in bringing about 
that nomination. 

" The manner in which this nomination was effected, and Mr. Dudley's 
part therein, is thus related by Charles P. Smith in Beecher's (Trenton) 
Magazine. As these are facts of historic interest, we give the account in 
full." [We shall introduce Mr. Smith's account by a few words from Mr. 
Isaac H. Bromley's striking and vivid paper, with the same title, in 
Scribner's Magazine for November, 1893, a spectator as a journalist in 
the scenes which he describes. He was afterward one of the editors of 
the New York Tribune. Mr. Bromley says, " The Chicago Convention 
of 1860 was much more than an organized body of delegates, its work 
much more than that of nominating candidates. Its transactions over- 
shadowed in importance, outreached in consequences, and transcended in 
results those of any assembly of men that was ever gathered on this con- 

Potts.] iUo [April 19, 

tinent. I shall not stop to answer the reader's rising thought of Philadel- 
phia and 1776." This is strong language, but Mr. Bromlej' impresses the 
reader with its truth. Both narratives, though widely different in their 
style, deserve a place in the history of this important occasion. ] 

"The Nomination of Lincoln. 

"As a member of the 'Opposition State Executive Committee ' I signed 
a call for a State Convention in Trenton, on March 8, 1860, for the purpose 
of selecting delegates to the National Coovention at Chicago. At that 
period there was a respectable and extremely active portion of the party 
in East Jersey in favor of nominating Mr. Seward for the Presidency and 
seeking to secure for him the vote of this State in convention. Aside from 
the Presidential question, it was highly important that we achieve success 
in our own State, and this, I felt confident, could not be accomplished with 
Mr. Seward as our Presidential candidate. It occurred to me that our 
proper course would be to hold the vote of the State on Mr. Dayton, and 
possibly give him the nomination. At all events, it might at least aid in 
nominating a candidate with whom success in this State was possible. 
Mr. Thomas H. Dudley came into the Supreme Court office one day on 
professional business, and I called his attention to what I deemed the 
unfortunate tendency of affairs. He coincided with me in opinion, but 
argued that the loss of the State under the circumstances was unavoidable 
— at least he perceived no recourse. I suggested that we start a candi- 
date in our own State, to hold the vote, and named the Hon. William L. 
Dayton. Mr. Dudley, after some consideration, assented. I then ad- 
vised holding a caucus of leading men of the party to give force to tlie 
movement, whereupon Mr. Dudley agreed to notify such gentlemen in 
the First Congressional District as he might deem proper and I was to 
summon from the Slate at large. We thus assembled some sixty promi- 
nent Jerseyraen at Jones' Hotel, Chestnut street, Philadelphia. I also 
spent considerable time in securing the attendance of a number of active 
Philadelphia Republican politicians. My object was to induce them to 
join in the movement ; but they preferred Mr. Cameron. As far as their 
cooperation was concerned, the movement was without success. Abra- 
ham Browning. Esq., of Camden, presided at the meeting, and after con- 
siderable discussion, in wlticli Mr. Dudley took by far the most promi- 
nent part, the Jerseyraen present unanimously determined to use their 
best efforts to secure delegites in favor of Mr. D lytoa. Tiie effect of 
this meeting was fully manifested iu the State Convention. But a small 
moiety of the East Jersey delegates were for Mr. Seward, while the large 
majority were decidedly for Mr. Dayton. Mr. Dudley was selected as a 
delegate from the First District, and at Chicago was one of the most prom- 
inent and active members of the New Jersey delegation, exercising all 
necessary influence in holding the vote of his State for ]\[r. Dayton until 
he was able to cast it for Mr. Lincoln, and practically give him the nomi- 

1895.] 109 [Potts. 

"It was conceded early in the session of the convention that there were 
four doubtful States — New Jersey, Indiana, Illinois and Pennsylvania — 
and it was necessary to carry at least two of these States in order to nom- 
inate a candidate other than Mr. Seward. New Jersey presented Mr. 
Dayton ; Pennsylvania, Mr. Cameron ; and Indiana and Illinois, Mr. 
Lincoln. Mr. Seward was the first choice of a majority of the New Eng- 
land States, but the event disclosed that they preferred the triumph of 
principle to the success of their favorite. A committee of these States, 
headed by Ex-Governor Andrew, waited upon the New Jersey delegation 
at their rooms, and declared that Mr. Seward was their choice, but if he 
could not carry the doubtful States they were willing to go for any one 
else who could, but added, 'Gentlemen, you see our difficulty; you are 
not agreed among yourselves, but present three different candidates. 
Now, if you will unite upon some one man who can carry them, then we 
wdl give him enough votes in the convention to nominate him. If you 
continue divided we shall go into the convention and vote for Mr. Sew- 
ard, our first choice.' It was narrowed down to this ; the four doubtful 
States must unite upon a candidate or Mr. Seward would be nominated. 
The convention assembled Wednesday morning, without change in this 
state of affairs. ?.[r. Dudley was assigned a place on the committee to 
frame a platform, and kept busy until Thursday noon. At that time the 
four doubtful States assembled at Cameron Hall to endeavor to unite upon 
some person. Ex-Governor Reeder presided. It was a noisy assem- 
blage, and it very soon became evident that nothing could be accom- 
plished as affairs then stood. Mr. Dudley then proposed to Mr. Judd, of 
Illinois, that the matter should be referred to a committee of three from 
each of the four States. He made a motion to this effect which was car- 
ried. Among those appointed were Judge David Davis, Caleb B. Smith, 
David Wilmot and William B. Mann, of Pennsylvania. On the part of 
New Jersey, Judge Ephraim Marsh, Hon. F. T. Frelinghuysen and Mr. 
Dudley. The committee met at six p.m. in Mr. Wilmot's room and were in 
session until nearly ten p.m. before anything was accomplished. At that 
time it seemed that an adjournment would be carried without arriving at an 
understanding. The time had been consumed in talking and trying to 
persuade each other that their favorite candidates were the most available 
and best qualified. It was then that Mr. Greeley went to the door, and 
finding no agreement had been reached, telegraphed to the Tribune that 
Mr. Seward would certainly be nominated the next morning as the Re- 
publican candidate. 

" Finding that the committee was about to separate without achieving 
any result, Mr. Dudley took the floor, and proposed that it should be 
ascertained which one of the three candidates had the greatest actual 
strength before the convention, and could carry the greatest number of 
delegates from the four Slates in the event of dropping the other two. 
Judge Davis stated as to Mr. Lincoln's vote on the first ballot, and the 
probable vote of the Illinois delegates, in the event of Mr. Lincoln being 

Potts.] lit) [April 19, 

dropped — that is, how they would break. The committee from Indiana 
and Pennsylvania also reported how the votes of their States would be 
cast if Lincoln and Cameron were both dropped. The New Jersey 
committee made a similar statement as to the strength of .Judge Dayton. 
It was understood that a portion of the New Jersey delegates would drop 
Mr. Dayton, after giving him a complimentary vote, and go for Mr. 

"This examination revealed the fact that of the three candidates Mr. 
Lincoln was the strongest. Mr. Dudley then proposed to the Pennsyl- 
vania committee that for tlie general good and success of the party they 
should give up their candidates and unite upon Lincoln. After some 
discussion, Mr. Dudley's proposition was agreed to, and a programme 
arranged to carry it into execution. A meeting of the Dayton delegates 
from New Jersey was immediately called at James T. Sherman's room, at 
one o'clock that night ; Judge Marsh and Mr. Frelinghuysen, evidently 
not believing it possible to carry out the plan, did not attend the meeting ; 
thus Mr. Dudley was the only one from the committee present. He ex- 
plained what had been accomplished, and, after talking the matter over, 
they approved his action. It was understood that Judge Dayton was to 
receive one or more complimentary votes, and then the strength of the 
delegation to be thrown for Mr. Lincoln. It was also arranged that Mr. 
Dudley was to lead off in voting for Mr. Lincoln, and then they were to 
follow. The Pennsylvania delegation likewise adopted the plan, first 
giving Mr. Cameron a complimentary vote. The agreement of the com- 
mittee was not generally known when the convention assembled. On 
the first ballot the entire New Jersey delegation voted for Mr. Dayton ; 
tile next, that portion who favored Mr. Seward, voted for him, while the 
majority voted for Mr. Dayton. "When New Jersey was called on the 
third ballot;, Mr. Dudley stated that he should vote for Mr. Lincoln and 
was immediately followed by all the New Jersey delegates save one. The 
result is known. New England did what she promised, and Mr. Lincoln 
was nominated. It was the action of the committee from the four doubt- 
ful States which undoubtedly secured Mr. Lincoln's nomination ; but for 
this Mr. Seward would have been nominated, and there is little doubt, 
just as surely defeated. This is a plain narrative of the manner in which 
the nomination of Abraham Lincoln was brought about. It cannot be 
disguised that, had it not been for Mr. Dudley's energy and tact in the 
committee of the doubtful States, the nation in the emergency which so 
soon followed would not have had the service of that great and good man 
at the helm. 

"Mr. Lincoln recognized his obligations to Mr. Ddyton's friends by 
nominating that honored citizen to the important position of Minister to 
France. I wrote to Mr. Lincoln after his inauguration ; stating fully Mr. 
Dudley's action in the convention, and asking his appointment as Consul 
to Liverpool. Others likewise urged his claims, and he was appointed to 
the position, where his eminent services during the Rebellion were 

1895.] Ill [Potts. 

scarcely inferior to tliose rendered by our Minister at the Court of St. 

Early in 1861, before he had accepted the position of Consul to Liv- 
<;rpool, Mr. Dudley went abroad for his health. While there, he was 
appointed Consul to Paris, to fill tlie temporary vacancy, Mr. Bigelow 
not having yet arrived and the former incumbent having proved a Seces- 

The trying situation of Mr. Dudley and the little band of American 
patriots in Liverpool is best described by Mr. William Everett in his 
address on Charles Francis Adams.* He says : "I was in England dur- 
ing the first two years of the war. I was one of that little company of 
Americans whose duty kept us in England, scattered, isolated, scantily 
informed, learning what was going on at home chiefly from garbled 
telegrams, not knovving what to believe, yet called to account for every- 
thing rash or foolish done or said to be done in North and South alike ; 
sneered at, taunted, patronized and forced every hour to fight the battle 
of our country's honor as truly as you who were in the regiments at 
home. You had your trials ; believe me, we had ours. You were five 
hundred thousand strong ; we were scarcely a fair-sized regiment, and 
scattered farther apart than the pickets of a whole army corps. You 
had the nation at your very backs ; we were cut off from it by ten days 
of ocean. You had those who took eager account of your triumphs and 
your disasters. We might bear tortures as acute as wounds or fever, and 
deal what blows we could, with none to note or sympathize. Yet there 
we fought, resolved that the name of America should not die in the land 
from which her founders came. And to him we looked as leader, as 
commander in our strife for honor ; and none who fought under McClel- 
lan or Grant, under Dupont or Farragut, remember those heroes with 
more grateful devotion than that which we pay to the memory of Charles 
Francis Adams." 

It is impossible to read Mr. Adams' letters in " The Diplomatic Corre- 
spondence " without having a profound respect for the character of the 
man and his diplomatic ability. Mr. Dudley's relations with Mr. Adams 
were constant and close. Surrounded by spies, a written correspondence 
was not always deemed safe, as every moment the Consul at Liverpool 
was watched and followed. For these reasons he often took the train 
for London from Edgehill, liaving previously arranged to have his family 
take his valise in their carriage and meet him there. He had noticed that 
if he carried a handbag a spy was sure to follow and take the same train, 
surmising his destination. If without it, apparently he was free from 
this espionage. The numerous letters from his friend, Mr. Benjamin 
Moran, the Secretary of Legation at London, were purposely written in 
such a vague way that if they were intercepted, they would be of no ser- 

*William Everett's "Address on Charles Francis Adams," July 4, 1887, Cambridge, 
1887, pp. 85, 86, 87. 

Potts.] 112 [April 19, 

vice to the rebel agents. Having examined a large number of them, we 
must give Mr. Moran credit for great ingenuity. 

Liverpool, which owed its early rise and progress to the slave trade, 
was in a great variety of ways the stronghold of Southern sympathy. An 
instance is given in a letter of Mr. Seward to Charles Francis Adams in 
" The Diplomatic Correspondence." 

"May 1, 1862. 

" Sir : — Mr. Dudley our vigilant consul at Liverpool, writes that the 
subscription which was gotten up in that place to aid the insurrection in 
this country mounted up to £10,000 sterling, and that all that large sum 
of money has been invested in arms and munitions of war. He also states 
that a second subscription for the same purpose is now being filled up in 
the same place. 

" I can hardly doubt that he has brought these facts to. your notice and 
that you have called the attention of her Majesty's government to them." 

The Consul received numerous threatening letters warning him unless 
he ceased his opposition to those who gave substantial assistance to the 
Confederate government, his life would be taken, and if lound in certain 
designated spots he would be shot on sight. These threats had little 
effect on his determination to do his duty. It is pleasant to meet with an 
occasional friend of the Union, whose sympathy an American at such a 
crisis needed at this advanced outpost in what may truly be called the 
enemy's country. John Bright was such a one, whose letters of heartfelt 
sympathy we print below.* On one occasion we meet with the letter of 
an undecided friend from an anonymous source, who seems ashamed of 

* The Eaglisli friends of tlie Union in Liverpool were few, but hearty and practical in 
their sympathy. Tliey deserve to be held in grateful remembrance. First we would 
mention the Vice-Couhul of the United States, Mr. Henry Wilding, au able and efficient - 
officer, himself an Englishman. He died a few years since. Charles Edward Rawlins, 
Ex-President of the Chamber of Commerce ; Robert Trimble ; James Spence, elsewhere 
mentioned in this article ; CJharles Wilson; William Inman, of the Inmau Line Steam- 
ship Company ; William Crossiield ; Samuel Bulley ; Thomas Avison, and the firm ot 
Jevous & Ryley (Wm. A. Jevons, Thomas C. Ryley). 

The American merchants who formexl the Liverpool colony that were steadfast in their 
devotion to their country were Daniel James (of Phelps.. Dodge & Co.), George Warren 
(fo.under of the Warren Steamship Company), Stephen B. Guion (head of the Guion 
Line), B. F. Babcock, William T. Whitlimoreaud Henry Nash. 

The Americans were in some sense in a state of siege, surrounded by their enemies. 
These earnest men brought private news of the success of the Union arms to the Consul 
and distributed correct information among the friends of the United States, sometimes 
in the middle of the night ; otherwise all they would have known for at least two weeks 
were garbled telegrams and false reports. Among the English, the family of Mr. Robert 
Trimble, above mentioned, made with their own hands and the help of their friends 
eight hundred garments for the Irecdmeii of the South. The determination of these 
few men, headed by Mr. Dudley, and the colony in Loudon led by Mr. Adams was not 
without its influence being ultimately felt in England. John Bright's remarkable 
speeches were followed by the sympathy of some of the most profound thinkers iu Great 

1895.] ilo [Potts. 

the disgraceful piratical proceedings of his fellow-Englishmen, and sends 
the Consul the following picturesquely descriptive note : 

" Sir : — There is a steamer called the Eirang Tung in the Birkenhead 
Dock sails built and Guns on board, said to be for the Chinese and ready- 
to sail any tide ; she came from the same building yard as the Alabama 
and it may be worth your while to look after her. She has two masts, 
wholly or partially brig-rigged, two funnels painted light colour, black 
hull and light blue paddle boxes, built of iron with a ram bow .... I 
don't side particularly with North or South but 

" I am 

" No Privateer's man. 

"Liverpool, 1 May, 1863." 

A few of Mr. Bright's letters are marked " private," but this the reader 
will readily see bears on the time and circumstance, which secrecy above 
thirty years' distance removes. They all do him the highest honor, and 
show that his political course and some of his important speeches, which 
considerably influenced the English people of the liberal sort, were prob- 
ably to some extent owing to Mr. Dudley's efforts to keep him correctly 

"Rochdale, Dec. 29, 1861. 

"■'Dear Sir : — I am very much obliged to you for your kind letter, and 
I shall be very happy if anything I have said shall contribute to the pres- 
ervation of peace. 

"There are two nations in England — the governing class and the mil- 
lions who toil — the former dislike your republic, and their organs inces- 
santly misrepresent and slander it — the latter have no ill feeling towards 
you, but are not altogether unaffected by the statements made to your 
prejudice. I hope however that out of present perils we may see a bright 
future and a better understanding between your people and ours. 
"Yours very Sincerely, 

"John Bright. 

"Thos. H. Dudley, Esq., U. S. Consulate, 

"Llandudno, North Wales, Oct. 18, '62. 

" Dear Sir : — I have ordered the Book of which you speak. I read 
Gasparin's first Book and thought it admirable. 

"I know nothing of Gladstone's speech* except that on the American 
question it is discreditable to him, and calculated to do mischief. He 
comes of a family long connected with slavery — and is now the minister 
in a country where aristocracy rules, and by which a republic is neces- 

*Mr. Adams wrote to Mr. Seward from London, October 17, 1862, regarding Mr. Glad- 
stone's speech in much the same manner. 

Mr. Adams says later in his letter: "The general opinion now is that he was very 
indiscreet. But I see no change in the current [of public opinion]. Indeed nothing 
short of a very decisive victory in Virginia will avail to check it." 

PROC. amkr. philos. see. xxxiv. 147. o. printed may 23, 1895. 

Potts.] -1-14 [April 19, 

sarily hated, and I suppose he takes the color of the atmosphere in which 
he moves. 

" The Proclamation * is a grand move not too soon, nor too late, in my 
opinion. It must have a good effect here in putting your enemies more 
and more in the wrong. 

"During the winter as your forces get possession of Charleston, Savan- 
nah, Mobile and Vicksburgh the negro will learn everywhere who are his 
friends, and I can see no way of escape for the Conspirators but in work- 
ing the ' Emancipation ' lever for themselves. If they declare for free- 
dom, they may give you a deal of trouble — but if they do not I think their 
whole basis of industry and power will crumble under them. 

" Don't be unhappy about English opinion — there will be a reaction — 
and it is what you do in America, and not what people think here that 
will decide the contest.f 

"You oflfered to write to Horace Greeley asking him to send me the 
Tribune. I shall be glad to pay for it if he has an agent in Liverpool. 
"Yours very Sincerely, 

"John Bright. 

"Thomas H. Dudley. Esq., U. S. Consulate, 

" Rochdale, Jany. 26, 1863. 

" Dear Sir : — Thank you for the Book — I have read it through with 
much pleasure. I wish it may have a wide circulation in America and in 

" You may rely upon it that positive sympathy with the South is only 
to be found in our 'upper crust ' and the rich middle class which largely 
' flunkey ' to it. The People, the millions don't hate America because of 
the republic — nor do they prefer the disruption of the Union to the 
abolition of slavery. 

"I am sorry your Govt, has not yet succeeded in clearing the great 
river — they seem generally to underrate the work thej'' have to do — to 
attempt too many things at once. The retaking of Galveston shows 
great carelessness on the part of those in authority in the Gulf. 

"I hope and believe we shall not hear much of recognition and inter- 
vention in the coming session, unless circumstances change for the worse 
with you. 

"The Alabama will be discussed in some shape. The Govt, feel 
themselves in a difficulty about it. I should like to have all the facts of 
the case, and an hour's talk with you upon them before the meeting of 
Parlt., but I don't know whether such a thing can be arranged or not. 
" Yours very Sincerely, 

"John Bright. 

"Thos. n. Dudley, Esq., U. S. Consulate, 

* Tlie Emancipatiou Proclamation issued by President Liucoln, September 22, 1862. 
t See footnote, p. 113. 

1895.] J-J-^ [Potts. 

"Rochdale, Jany. 30, '63. 
" Dear Sir :— It is possible I may come down to see you to-morrow 
morning if I can arrange it. 

"If I come I shall hope to see you between 10 and 12 o'clock—I must 
return in the course of the afternoon. 

" Yours very Sincerely, 

"John Bright. 
" Thos. H. Dudley, Esq., Liverpf)ol." 


"Rochdale, April 33, '63. 

" 3fi/ Dear Sir : — Thank you for the pamphlet. It makes me very angry 
to read the cases of the Alabama and the 3Iaury. 

"I think Lord Russell will go on with the proceedings against the 
Alexandra. Our Govt, is so much in favor of belligerents that it can- 
not disregard those international obligations to which it attaches so much 

" They find it very difficult for the same reason to say anything against 
the seizures made by your vessels. The owner of the Peterhoff* told me 
that she was not a blockade runner, and had no contraband of war on 
board. I hope if this be so, your prize court will soon liberate her. It 
will be a great misfortune if any trouble arises out of any of the recent 

"There is a special hostility to your Commodore or Admiral Wilkes 
and he should be careful to keep within the law. I cannot be in the 
House on Friday night. 1 am kept here at present by domestic affairs 
and must leave the public to its fate. 

"There seems an increasing emigration to the States just now. Can 
you tell me if an emigrant is, immediately on landing liable to the con- 
scription, or only after a certain time of residence? Two men have just 
come back here fearing the draft, and I suppose many are deterred from 
going by fear of it. 

"If your Govt, were to offer a free passage to 50,000 people from Lan- 
cashire, I think they might get them — they would be avenged on the cap- 

* The case of the Peterhoff is related in detail in Appleton's Annual Cyclopedia for 1863 
under " Prize." She was captured by a United States vessel February 25, 1863, otf 
the Island of St. Thomas. Upon her bills of lading she was bound "for off the Rig 
Grande, Gulf of Mexico, to Matamoras." Her clearance was from London to Matamoras. 
She left London early in January, 1863. Her registered owner was an English subject. 
Her cargo was laden by a large number of shippers, all of them British subjects, with 
the exception of one, who was a citizen of the United States and a resident of Texas at 
the breaking out of the war, and was a passenger on the vessel. The portion represented 
by this passenger was more in value than half the whole. 

It was shown by the character, of the army stores on board that they were " contraband 
of war," that the bills of lading gave a false showing as to the vessel's destination. The 
ship and entire cargo were therefore confiscated. 

Potts.] lib lAprillO, 

italists who have backed the South by making labor scarce and dear here- 

"Yours very Sincere]}'', 

"John Bright. 
"T. H. Dudley, Esq., U. S. Consulate, 

" [P. S.] I wish I could get a copy of your Eomestead Bill. 1 do not 
know what it is." 

In an eloquent speech delivered at Birmingham, January 26, 1864, on 
"The Distribution of Land," recommending emigration to America, 
Mr. Bright speaks in detail of the Homestead Act, which came into 
operation 1st January, 1863, and says : "I have a copy of the Act here, 
and the circular, which was issued from the Department of State, giving 
direction as to how the Act should be worked throughout the Union " (p. 
355, Rogers' Ed. oi Bright' s Speeches, 1868). 

" Rochdale, April 27, '63. 

" 3Iy Dear Sir : — Thank you for the Homestead Bill, &c. The Docu- 
ments are very interesting. 

" The Charleston business is bad as was to be expected. It appears to 
me that half a dozen people in your Govt, do as they like — trying to 
do too much and failing almost in all. If the Iron clads had been on the 
great river, perhaps tliey might have cleared it by this time — whereas 
neither one thing nor tlie other is done — I am afraid Banks is not up to 
his work at New Orleans — the whole power of the South is evidently in 
arms, all its force is given up to the war and therefore the contest is 

"The speeches of Palmerston and the Solicitor General have given 
offense — naturally enough — I hope the seizure of the Alexandra will im- 
prove the tone in the States. In the debate on Friday last, the Govt, 
were mild enough, and Mr, Cobden's speech was excellent. It must do 
much good here. 

"I am sorry for your ' heart sickness ' — perhaps the clouds will break. 

"I am always in trouble for your country — and whilst the contest lasts, 
I seem able to thiulc of nothing else. 

"Yours very Sincerely, 

"John Bright. 
"Thos. H. Dudley, Esq., U. S. Consulate, 

"Rochdale, July 0, '63. 

"Bear Sir : — I am not likely to be in town for some days — but I have 
sent your note and the extracts to Mr. Cobden and have urged him to see 

1895.] 11* [Potts. 

some of the members of the Govt, with a view to measures to stop the 
iron-plated ships. I did what I could before I left London. Affairs in 
the States are very critical. There seems a strange want of foresight and 
of force at Washington and I fear this has bred disgust and hopelessness 
among the People. 

"Why pay and fight under Leaders totally incompetent to lead and 
win ? Is not this a possible feeling ? 

"Again, has the Slavery poison gone so deep as to have polluted and 
enfeebled the free States that they cannot subdue the revolution which 
threatens to destroy them ? 

"History may answer this question — I cannot. 

"I have kept my faith till now — and I shall not part with it except as I 
should part with my life's hope. 

" Perhaps another week or two may bring better tidings — I will hope 

" Yours very Sincerely, 

"John Bright. 

"Thos. H. Dudley, Esq., U. S. Consulate, 

Among the curious miscellaneous correspondence of Mr. Dudley rela- 
ting to his consulate at Liverpool during the war of the rebellion, were a 
large number of letters from persons who stated they desired to enlist in 
the service of the United States. They were sometimes very descriptive 
of the applicant and often original and amusing, showing considerable 
egotism and conceit. Many of these were undoubtedly written in good 
faith, while others were most likely written by spies and those who wished 
to entrap the American Consul in an offense against the laws of Great 
Britain. Most appear to have been written by Irishmen whose animosity 
to England is quite evident, and some were from those who had no real 
intention of joining the army of the United States, but desired to use this 
method as a means to obtain a free passage. 

We regret that we have not spape to give a few of these to show the 
variety of men the American Consul had to deal with. They have au 
historic interest as a picture of the times. 

Many of tliese letters being from men then in Lancashire where the 
operatives were starving through the shutting off of the cotton supply for 
the mills by the blockade, will bring to mind the passage in one of the 
above letters of John Bright to Mr. Dudley, April 23, 1863, where he 
says : "If your Govt, were to offer a free passage to 50,000 people from 
Lancashire, I think they might get them." 

Mr. Dudley was constantly subjected to insults and threitening letters, 
sneers, and social evidences with the plainest remarks of hatred for him as 
the representative of the United States. The flag at the consulate was 
often found with tin kettles and bricks tied to it as an object of contempt. 
On one occasion it is believed personal violence was intended in an assault 

Potts.] 11" [April 19, 

at his own house. Three men apparently bent on mischief rang his door 
bell, and were so stern in their demands to see Mr. Dudley, that the ser- 
vant was in an agony of fear, but taking in the situation at a glance the 
Consul, with prompt presence of mind, quickly shut the door in their 
faces and bolted it. It is believed they were armed and intended assault- 
ing him. His duties were therefore for the most part entirely new and 
without precedent, requiring just such a man of more than usual execu- 
tive ability, promptness, and decision of character, not open to blandish- 
ments or bribes. 

In the biographical notices which appeared at the time of his death 
much has been said about his patriotic action in preventing the sailing of 
the numerous vessels fitted out, not only at Liverpool, but elsewhere, to 
prey upon American commerce. These general statements give no idea 
of the character of the work and its arduous as well as dangerous diffi- 
culties, in all its intricate details in which Mr. Dudley faithfully served his 
country. To say that he was a sentinel at the most advanced outpost, and 
in the midst of the enemy's country; while it gives an idea of his con- 
stant watchfulness, barely shows his actual encounter with the enemy. 
Of the long list of vessels, 324 blockade steamers reported by Mr. Dudley, 
126 were either captured, sunk or battered to pieces. The mere mention 
of their names alone with that of fifty-six sailing vessels engaged in the 
same piratical enterprise, fill a column and a half in an ordinary sized 
newspaper. The source from which this is taken gives some valuable 
details regarding twelve war steamers, which Mr. Dudley also reported 
and was instrumental either in stopping, or embarrassing so effectually 
that except in one or two instances, comparatively little harm was accom- 
plished. It was here that Mr. Dudley's legal services were continually 
employed. He was obliged to be constantly before the English oflicials 
with a mass of sworn evidence in regard to the hostile character and 
destination of these vessels, obtained as best he could in a neighbor- 
hood where every obstruction was put in his way, and spies constantly 
employed to watch his slightest movements, and many who were willing 
to testify were deterred by the fear of social ostracism and loss of busi- 
ness. Citations to appear were sent to him at the most inconvenient times. 
He was obliged in self-defense and in the service of his country to fight 
these persistent people with their own weapons. By the authority of the 
President he had over one hundred spies employed, and to guard against 
deception, many of these were spies upon each other, not a single one 
knew the name or identity of a brother spy. Mr. Dudley himself traveled 
incognito through the country, and "for three years there was not a keel 
laid in Great Britain, without his learning the whole particulars within 
twenty-four hours. 

Impressed with his work, the President gave him extraordinary powers 
and every consulate in Great Britain, with the exception of the single one 
in London, was placed under his supervision. Even many of the American 
Consuls on the continent, who were not under his jurisdiction, repeatedly 

1«95.] J 1" [Potts. 

wrote to ]iim for advice and instructions, in the new and trying situation 
they found tlie rebellion liad placed them. The mass of correspondence 
alone, without mentioning the other work which this situation occasioned, 
18 evidenced by a simple statement of the fact. The following interest- 
ing letter to Mr. Dudley from Captain Winslow, of the Kearsarge, 
describing the combat with" the Alabama, was a fulfillment of the hopes 
of the little band of patriots resident in Liverpool, as well as of the 
American people. The engagement took place on June the 19th : 

"U.S. Kearsarge, Cherbour, June 24, '64. 

" JJy Dear Sir : — Your letter conveying congratulations with many of 
the same kind has been received. I thank you in behalf of my crew and 
officers, for this evidence of the estimate you put upon the destruction of 
the Alabama. I think you will ere this reaches you find full particulars 
in the Daily News as Morse and the London Legation have written for 
them and a Herald correspondent has been on board. 

"You know I could not challenge the Alabama without violating 
orders. I however got one from Semmes to wait until he was read}' (a 
quite unnecessary request since he knew that was my business). The 
Kearsarge carried into action 160 men, 7 guns, 2 Dahlgren's eleven inch, 
1 light rifle twenty eight pounder and four thirty-twos. The Alabama 
had eight, one more than the Kearsarge, consisting of 100 pounder rifle and 
heavy sixty-eight ditto, six thirty-two pounder guns. The Alabama had 
the coal bunkers filled, the Kearsarge was partly empty and her sides for 
twenty feet opposite the bunkers were hung with chains, stopped to eye 
bolts. This was done on board and the cliains belonged to the sheet 
anchors and were put there as a sort of protection when the bunkers 
were out of coal. 

" The Kearsarge steamed several miles seaward to prevent the Alabama's 
getting back and dispose of all questions of jurisdiction. Turning she 
started for close quarters with the Alabama and coming down received 
three broadsides of the Alabama, nearly raking [her] which it was neces- 
sary to get, to close in with her. No shot came on deck from this firing. 
The action lasted one hour and two minutes, when [the] Alabama struck, 
and it was well for her, for she would have been most destructively 

" The Kearsarge had some 28 or 29 shot above and below, some 5 or 6 
aft mainmast which were the best two shells in her chains on the side 
which were of no importance. One shot of 100 lbs, in her stern post 
remaining (bad shot this). The Deerhound ran oflTwith prisoners, which 
I could not believe any cur dog could have been guilty of under the cir- 
cumstances, hence I did not open on him. 

"We landed of Alabama, G3 men, 3 dead, 17 wounded. Have 5 ofli- 
cers prisoners. 

" All twaddle about Alabama's firing going down. The vessel they 
say was a slaughter house, and when some of the men ran aft to prevent 

Potts.] X^U [April 19, 

the flags being hauled, Seinmes took his pistol to blow out their brains — 
this Is true and don't show there was any disposition to fire guns when 

" We had 3 severely wounded. The Alabama has here now 74 men and 
officers — 3 dead, making 77 of the number, 18 are wounded — 39 were 
landed (officers and men) in England, making 116 in all. Of the 116 left 
about 20 are wounded and they say some 40 lost, killed and went down 
in the ship. For want of means for providing I was compelled to parole 
all except officers. 

" This is a memorandum of the whole story, which I am sorry from the 
number of letters I have to answer, that I cannot put in another shape, 

"I remain with thanks very truly yours, 

"Jno. a. Winslow. 
"Thos. H. Dudley, Esq., IT. S. Consul, 

Mr. J. C. Bancroft Davis, in his recent interesting work, 3Jr. Fish 
and the Alabama Claims; A Chapter in Diplomatic History, has ably 
set forth Mr. Sumner's estimate of the damages inflicted on the United 
States by England, and though we may agree with Mr. Davis in his per- 
sonal estimate of Sumner's character and ability, and especially that such 
a statement of damages was undiplomatic and impractical as regards any 
pending arbitrations, yet nevertheless we must allow that a large body of 
the American people felt that Mr. Sumner truly stated our wrongs. His 
was not an overestimate of the importance of these damages which are 
so far away they seem unreal to the present generation which unques- 
tionably prolonged the war and produced the slaughter of thousands of 
our countrymen, who died by English bullets fired from English guns 
for whose death England was responsible. 

Mr. Davis, quoting Mr. Sumner's speech in the Senate upon the John- 
son-Clarendon Treaty for the settlement of the Alabama Claims, says : 
" Under the heading, 'The Case Against England,' he [Sumner] said : 
' At three difterent stages the British Government is compromised ; first, 
in the concession of ocean belligerency, on which all depended ; secondly, 
in the negligence which allowed the evasion of the ship in order to enter 
upon the hostile expedition for which she was built, manned, armed and 
equipped ; and thirdly, in the open complicity which, after the evasion, 
gave her welcome, hospitality and supplies in British ports. Thus her 
depredations and burnings, making the ocean blaze, all proceeded from 
England, wliich by three different acts lighted the torch. To England must 
be traced the widespread consequences which ensued.' What those wide- 
spread consequences were he set forth in detail under the heading, ' The 
Extent of Our Losses.' He estimated the loss sustained by the capture 
and burning of American vessels at about $15,000,000, on the authority 
of 'a statistician.' The loss in the carrying trade he put at $110,000,000. 
Then he said that, large as these losses were, there was another chapter 

1895.] ^Jl [Potts. 

•where they were larger far — 'the national losses caused by the prolonga- 
tion of the war and traceable directly to England,' and he clinched the 
statement by saying, ' If through British intervention the war was doubled 
in duration or in any way extended, as cannot be doubted, then is Eng- 
land justly responsible for the additional expenditure to which our coun- 
try was doomed ;' and he stated the cost of the suppression of the Rebel- 
lion at $4,000,000,000, thus leaving the calculation of this item plain to 
the youngest schoolboy." 

"The feeling of hostility towards our country," Mr. Dudley said, 
" was not confined to one class, but pervaded all classes, the laboring and 
middle classes as well as the higher. Of the entire population of Eng- 
land, nine out of every ten sympathized with the slave-holders' Rebellion. 
I say nine out of every ten, deliberately. I am aware there are those in 
England who entertain a different opinion, and assert that among the 
laboring classes of the country the majority were with the North. I do 
not think so, and am satisfied the proportions I have given are cor- 

"You can now understand how it was that this sympathy should 
become active and bear fruit in the recognition of belligerent rights to 
the rebels, in building them a navy, in fitting out cruisers to sweep our 
commerce from the seas, in furnishing arms and munitions to their 
army, and supplies to clothe and feed them. You can also understand 
why one of the leading blockade runners, whilst mainly engaged in the 
blockade business, was elected Mayor of Liverpool ; why John Laird 
could be elected to Parliament from Birkenhead by an increased majority ; 
and why Sheffield, a leading manufacturing town, trading with the United 
States, would send Roebuck as their representative. 

"The effect of all this was to prolong, to intensify and render more 
bloody the war. Much of the blood that was spilt, muchof the treasure that 
was spent, are justly chargeable to the Government and people of Europe 
who recognized the rebels as belligerents and gave them aid and comfort ; 
and to this charge the people of England are especially obnoxious. But 
for this recognition, the South could not have had a cruiser on the ocean ; 
but for this active aid and sympathy she could not have armed her men, or 
fed or clothed them when in the field. It was the hope of intervention 
that buoyed up the South, and cheered them on in the desperate contest. 
It was this that supplied fuel to the fiame and kept the fire burning. But 
for this, in my judgment, tlie war could not have lasted for a year ; and the 
probabilities are that the ninety days given by Mr. Seward for its termi- 
nation would have witnessed the end, as he predicted."* 

In 1867, the Government of the United States sent David A. Wells to 
Europe for the purpose of investigating the questions of production and 
labor in England, France, Belgium and Germany. Mr. Seward, at the 
instance of the Secretary of the Treasury, detailed Mr. Dudley to accom- 

* See p. U, Proceedings at the Dinner Given by the Bar of New Jersey to Thomas H. Dudley, 
Esq., Nov. 25, 1868, Newark. 


Potts.] -"-^^ [April 19, 

pany Mr. Wells. Of this appolatment he says: "I therefore have been 
in many of the manufactories of Europe, and had an opportunity to study 
them and learn the wages and the condition of their working people."* 

Returning to this country on a visit in the latter part of 1868, the mem- 
bers of the New Jersey Bar gave a dinner to Mr. Dudley on November 
25, at Newark, in recognition of his distinguished services to the coun- 
try, at which the late Mr. Justice Bradley, of the Supreme Court of the 
United States, Senators Frelinghuysen and Cattell, Chancellor Zabriskie, 
Attorney-General Robeson and many eminent persons were present. Mr. 
Bradley, introducing Mr. Dudley, spoke of him as a Jersey lawyer, 
whose professional career had ever been marked by the greatest prompt- 
ness, assiduity and painstaking in tlie cause of his clients, and whose 
unfaltering patriotism and sympathy for the principles which on our part 
lay at the bottom of the struggle, pointed him out as the man to be im- 
plicitly trusted. And how well and nobly has he justitied the confidence 
which President Lincoln reposed in him !" Mr. Bradley also enumerated 
the numerous vessels captured, sunk and detained through his watchful- 

Mr. Frelinghuysen, on this occasion, spoke of the energy and persever- 
ance with which Mr. Dudley had stood by the interests of his countr}"- 
amid difficulties and discouragements of no ordinary kind and in spite of 
the social Coventry, to which, in company with others from the North, he 
was contemptuously dispatched during the progressof our civil war. " It is 
sometMng," said he, "to do our duty when it is hard, and incurs the gen- 
eral opprobrium of those around ; and honor should be given to him who 
faithfully performs his duty under such circumstances." 

In 1871, Mr. Dudley proceeded to Geneva to attend the Court of Arbi- 
tration there and to assist the Government in regard to ihe Alabama. The 
English themselves appear to have been impressed with his character 
while endeavoring to controvert his important testimony concerning the 
Florida In the "Counter Case of Great Britain," at the Geneva Arbi- 
tration. We have the following (p. 299) : "The American Consul at Liv- 
erpool, whose activity in hunting for secret information appears to have 
been indefatigable," and again (p. 301), " Mr. Dudley, though he appears 
to have been an intelligent and painstaking officer," etc. In short we 
may say that the subject of this sketch possessed that staunch quality 
which is the admiration of the Anglo-Saxon race all the world over, called 
' ' force. ' ' 

The testimony of another Englishman on another occasion is also worth 
recording. Mr. James Spence, of the well-known firm of Richardson, 
Spence «& Co., a citizen of Liverpool, said of Mr. Dudley : "My acquaint- 
ance with him commenced when he first came to Liverpool, and our 
friendship, I am happy to say, never varied. He filled a very responsible 
and onerous position in most troublesome times, with much prudence and 
discretion with credit to himself, and benefit to his Government." 

*r. 19, speech at Astoria, N. ¥., Oct. 23, 1884. 

1895.] 123 [Potts. 

In 1872, after his service at Geneva, he was appointed Assistant Attor- 
ney-General of the United States to settle certain claims against the Gov- 

The Consulate of Liverpool, being both famous and lucrative, was 
eagerly sought even during his incumbency, but no pressure of the many 
office-seekers could induce the Government to remove him, he was too 
valuable a man for the place. At the time of his voluntary resignation 
in 1872, it is said there were no less than fifteen hundred applicants for 
the position. He had before repeatedly desired to resign when the war 
was over, but was told, by Mr. Seward, his services could not be spared, 
and begged to remain. 

These are but a few of the incidents of national importance which 
occurred during his long sojourn of eleven years as Consul at Liverpool ; 
they were closely interwoven with the history of his active life. Of minor 
importance were the opportunities the position gave him for social inter- 
course with his gi'ateful countrymen, many of whom of the most distin- 
guished character he entertained at his own house in Liverpool, of his 
frequent travels on the continent, and during this time his careful obser- 
vation and study on the Tariff question gave him excellent and well- 
digested material for his numerous pamphlets on the subject written on 
his return, which are given in the bibliography below. These were 
widely circulated throughout the country. We wish to call attention to 
three of considerable political interest ; that written in Liverpool, the case 
of the Alabama contrasted with that of the Maury at New York during 
the Crimean War, which pamphlet excited John Bright's just indigna- 
tion ;* the able reply to Augustus Mongredien's pamphletf on the Tariff, 
which passed through many editions, and was in one especially com- 
mended by a letter from Peter Cooper, and the last paper which he wrote. 
The Three Critical Periods in Our Diplomatic Relations with England Dur- 
ing the Late War. This is different in style and subject from the others, a 

* In his Three Criticnl Periods in Our Diplomatic Relations with England During the Late 
War, Mr. Dudley (p. 17) saj's : " During the Crimean War in 1855, Mr. Barclay, the Eng- 
lish Consul at Kew York, wrote Mr. Crampton, the English Minister at Washington, that 
he had reason to believe that the barque Maiuy was being fitted out in New York as a 
cruiser for Russia against England. Mr. Crampton wrote to the Secretary of State, Mr. 
Marcy, and he communicated with Mr. Gushing, the Attorney-General, who directed 
the United States District Attorney at New York to take Immediate steps for the deten- 
tion of the vessel, and this was done. In 1S38, during the Canadian Rebellion, the 
United States, at the instance of England, passed a special Act of Congress to prevent our 
people from aiding the Rebellion. I prepared a pamphlet, containing the correspon- 
dence in the case of the Alabama and the barque 31awy, and the special Act of Congress 
just referred to, to show the difference between the United States and England in enforce- 
ment of neutrality. I sent a copy of this pamphlet to all the members of the House of 
Commons, the leading members of the House of Lords and many of the prominent peo- 
ple in the kingdom. The English Government, in a dispatch dated September 25, 1863, 
addressed to Mr. Adams, refused to pass a new law to preserve its neutrality." 

tThe Western Farmer o/ ^??tenca, by Augustus Mongredien, author ot Free Trade and 
English Commerce. Cassell, Fetter, Galpin & Co., London, Paris and New York. All 
rights reserved, ls80. 12mo, pp. 30. The second title page has the seal of the Cobden Club. 

Potts.] J-^'* [April 19, 

deeply interesting narrative from which a much better idea can be obtained 
of his career abroad than in any words we can give. It is a paper of 
ability in its department, equal though different from the others, and gives 
rise to a melancholy regret, that one who could write so well had not 
completed his story before death called him away. 

On his return to his native country, in 1873, he purchased an estate, 
"The Grange," near Camden, and built a handsome house upon it. 
Here were frequently entertained perhaps the most distinguished com- 
pany of men ever gathered together in West Jersey. General Grant, 
while President, with his family, also passed the day there on one occa- 

In "The Report of the New Jersey Commissioners on the Centennial 
Exhibition," * it is said of Mr. Dudley, who had been appointed on the 
Board of Finance in 1873, that he represented New Jersey "with great 
assiduity and ability." This important office was one which required 
constant attention for several years. 

From this time he was actively engaged as President of the Agricul- 
tural Society of New Jersey ; President of the Pittsburgh, Titusville & 
Buffalo Railroad, and of the New Jersey Mining Company ; a Director 
in the Camden & Atlantic Railroad, the West Jersey Railroad, the Cam- 
den & Philadelphia Ferry Company, and of the Peoples Gaslight Com- 
pany of Jersey City ; first Vice-President of the American Protective 
Tariff League, etc., and President of the Bar Association of Camden. 

On March 22, 1886, he was elected to membership in the Historical 
Society of Pennsylvania. In the American Philosophical Society he was 
a member of the Council in the years 1887, 1890, and 1893, also serving 
on numerous committees. In these two societies he was an active mem- 
ber and must have held membership in others which are unknown to us. 

In short, his activity towards the end of a life of earnest work from his 
early youth, at a period when most men begin to show signs of age, was 
remarkable. During this time he wrote the numerous pamphlets whose 
titles we have given, and articles for the newspapers, besides taking part 
in political campaigns, making many speeches in his own State, in Penn- 
sylvania, New York and Virginia, in behalf of the Republicans. 

His death, in the seventy-third year of his age, was most unexpected 
and sudden. He was in such good health that he accepted an invitation 
to respond to a toast to be given on April the 25th to the Minister to Ger- 
many. A few days previous, seemingly strong and vigorous, early in the 
morning of April 15, 1893, arriving at the Broad Street Station, in Phila- 
delphia, he died almost instantly from an attack of heart failure. He 
was buried at Colestown Cemetery, near Moorestown, where repose 
the remains of his wife and infant son and of many of his old friends 
and neighbors. This spot was his own choice, for he was greatly 
attached to early associations, which seemed strengthened by a long 
absence from home and a participation in stirring scenes abroad. The 

* Trenton, 1877, p. 4t. 

1895.] 1-^'^ [Potts. 

Grand Army of the Republic of this district asked permission to place 
the flag upon his grave and to decorate it with flowers on Decoration Day, 
for tliey said he had served his country as faithfully as a soldier. 

The immense fleet of vessels carrying arms and munitions of war 
which, through his instrumentality, were stopped or rendered harmless, 
and the fifteen million of the Alabama claims acquired largely through 
his vigilance and prompt evidence, and information of great value con- 
veyed to the home Government, make his claims on his country's grati- 
tude equal to those of a great general. 

To sum up his personality, "Every one," says Cervantes, "is the son 
of his own work." His face, full of energy and decision, bore the im- 
press of his life. In person he was tall, in dress and habits simple. 

One of Mr. Dudley's biographers* gives a truthful account of some of 
his traits in the following : " Deeply religious in the Quaker sense, which 
makes each man alone responsible to his Maker and not to conventional 
ceremony, he was more spiritual minded than a practical prosaic lawyer 
and man of afTairs would be taken to be, but never wore his heart upon 
his sleeve save to familiars. Hated by many through the prejudice and 
misconception engendered in political strife [as strong characters often 
are], misunderstood by many more because he would not stoop to con- 
quer, he pursued the even tenor of his way in the respect and love of his 
confidants. Uarely heading public subscriptions, lie was instant in good 
ways and works, and most of his generous benefactions were only known 
to the needy recipients." 

A.n eminent member of the Bar of New Jersey f who knew him well 
thus describes him : "He was, as a lawyer, distinguished for the absolute 
devotion to the cause of his client with which he conducted his cases; no 
difficulty daunted and no obstacle deterred him. He persevered with 
indomitable energy and unceasing assiduity until his object was attained." 
We close this sketch with a tribute to the character of Mr. Dudley from 
one for whose sound judgment we have the highest respect — the vener- 
able Frederick Fraley, the President of this Society. 

" No. 1000 Walnut St., Sept. 27, 1893. 
" My Dear Sir : — I owe you an apology for not writing a reply to your 
letter relative to my acquaintance and friendship with our mutual friend 

"1 find by reference to the minutes of the Centennial Board of Finance 
that he was elected a Director of that body in December, 1873. I then 
became personally acquainted with him, although I had known him by 
reputation as a great and useful man during our unhappy Civil War. My 
intercourse with him from 1873 until the date of his death was character- 
ized by frequently meeting with him, participating in the work of the 
Centennial, and in many ways making our friendship of the strongest 

* H. L. Bonsall, in The Post, a dally paper of Camden, April 15, 1893. 
t Mr. Samuel H. Grey. 

Potts.] 126 [April 19, 

"I had learned a great deal from him of the thrilling events which 
took place during his holding the Consular office in England, and I also 
had opportunities for testing the value and extent of the information he 
possessed of economic and business questions. His death was a severe 
blow to me, and unexpectedly severed the ties which had bound us 
together for nearly twenty years. 

"He spent a morning with me and my family a few days before his 
death, and we were all wonderfully impressed with his kindly manners 
and the interest which he gave on that occasion to our Sunday morning 

" This made for him with us a glorious sunset for such a life, and I am 
truly thankful that I was permitted to have such a friend. 

"Sincerely yours, 

"Frederick Fraley. 
"Wm. John Potts, Esq., 
Camden, N. J." 


1. Correspondence Respecting the Alabama, also Respecting the Bark 

Maury, at New York, During the Crimean War ; and The Tempo- 
rary Act of Congress Passed by the United States at the Instance of 
Great Britain, in 183S, to Meet the Case of the Rebellion in Canada. 
[1862.] 12mo, pp. 56. (This contains several letters by Mr. Dud- 
ley and others relating to the Alabama's history which are extremely 

2. Proceedings at the Dinner Given by the Bar of New Jersey to Thomas 

H. Dudley, Esq , November 25, 1868. Newark • Printed at the 
Baity Advertiser Office, 1868. 8vo, pp. 18. (This contains the 
speech of Mr. Dudley, etc. See pp. 4 to 16, inclusive.) 

3. Protective Tariff and Free Trade. By Hon. Thomas H. Dudley (late 

United States Consul to Liverpool). Printed by J. B. Lippincott &> 
Co., Philadelphia, 1880. 12mo, pp, 13. (Apparently the first edi- 
tion. This is in the form of a letter to ' ' Charles Edwin [szc] Raw- 
lins, Esq., Liverpool," dated "Camden, N. J., January 20, 1830.") 

4. Protection or Free Trade for the United States of America? Dis- 

cussed in Two Letters between the Hon. Thomas H. Dudley, Ex- 
United States Consul to Liverpool, and Charles Ed. Rawlins, an 
Ex-President of the Chamber of Commerce, Liverpool. Audialteram 
partem. Second Edition, 1880. 12mo, pp. 29, The Argus Printing 
and Stationery Company, Limited, 31 Dale Street, Liverpool. 

5. Please Read and Circulate. Reply to Augustus Mongredien's Appeal 

to the Western Farmer of America, Showing the Prosperity of 
America under Protection and the Decline of England under Her 
So-called Free Trade System. By Hon. Thomas H. Dudley (late 

1895.] ■ 127 [Potts. 

United States Consul at Liverpool). 12mo, pp. 48. Printed by J. 
B. Lippincott & Co., Philadelpliia, 1880. 

6. Tariff Tract No. 12, 1880. Published by the American Iron and Steel 

Association at No. 265 South Fourth street, Philadelphia, at which 
place copies of this tract may be had free, for distribution, on appli- 
cation by letter. 
Protection to Home Industry. Shall England Interfere in Our Elec- 
tions and Make Our Tariff Laws for Her Benefit ? Reply to Augus- 
tus Mongredien's Appeal to the Western Farmer of America. By 
the Hon. Thomas H. Dudley, of Camden, N. J. (late United States 
Consul to Liverpool). 8vo, pp. 24. (Appears to be a reprint of 
No. 5.) 

7. Errors and Appeals. Edward Dudley vs. Camden and Philadelphia 

Steamboat Ferry Company, in Error, Etc. Thomas H. Dudley, 
Counsel. 12mo, pp. 18. (One of the so-called "paper books," 
printed in 1882, probably.) 

8. Court of Errors and Appeals. Benjamin F. Davis vs. the Township 

of Delaware, in Error. Brief of Plaintiff in Error. Thomas H. 
Dudley of Counsel for Plaintiff in Error. [No date.] 12mo, pp. 
16. ("Paper book.") 

9. The Farmer Feedeth All. How Protection Affects the Farmer. An 

Address Delivered before the New Jersey State Agricultural Society, 
at Waverley, September 22, 1882. By Hon. Thomas H. Dudley, 
Philadelphia. Allen, Lane & Scott's Printing House, Nos. 229-231 
South Fifth Street [Phila.], 1883. 8vo, pp. 16. (This was also 
printed by the Republican National Committee, campaign of 1884, 
Document No. 4.) 

10. Please Read and Circulate. Copies may be had by addressing Thomas 

H. Dudley, Camden, N. J. Reply to Augustus Mongredien's Ap- 
peal to the Western Farmer of America, Showing the Prosperity of 
America under Protection and the Decline of England under Her 
So-called Free Trade System. By Thomas H. Dudley (late United 
States Consul at Liverpool). With Peter Cooper's Letter En- 
dorsing the Same. 8vo, pp. 48. Allen, Lane & Scott's Printing 
House, Nos. 229-331 South Fifth Street [Phila.], 1883. (A note on 
the second page of the cover says, giving a letter from Peter Cooper, 
of New York: "This endorsement of Mr. Cooper's and the pam- 
phlet of Mr. Dudley's were published in the Justice, of New York, 
and National Farmer,. oi Washington.") 

11. A Reply to Kersey Graves' Comparison between Protection and Free 

Trade in the United States. By Thomas H. Dudley (late United 
States Consul at Liverpool) . [1883.] 8vo, pp. 11. 

12. An Address Delivered Before the New Jersey Board of Agriculture, 

February 6, 1883. By Thomas H. Dudley, President. Printed by 
Order of the Board of Agriculture, Camden, N. J. 8vo, pp. 16. 
The Milliette Printing Rooms, No. 21 Federal Street. 

Potts.l ^■^^ [April 19, 

13. The Cobden Club of England and Protection in the United States. 

A Speech Made at a Republican Meeting Held at Astoria, New 
York, October 23, 1884. By Thomas H. Dudley, of Camden, N. J. 
(late United States Consul at Liverpool, England.) 8vo, pp. 33. 

14. Competition of India Wheat ; Cause of Decline in Price ; to Super- 

sede American in English Market. Tne Remedy. From Address 
Before the State Board of Agriculture of New Jersey, February 3, 

1885. By Thomas H. Dudley, President (late Consul at Liverpool). 
8vo, pp. 14. Camden, N. J. : S. Chew, Printer, Front and Market 
Streets, 1885. 

15. Address of Thomas H. Dudley, President of the State Board of Agri- 

culture. Delivered before said Board at Trenton, February 2, 

1886. 8vo, pp. 16. Camden, N. J. : S. Chew, Printer, Front and 
Market Streets, 1886. 

16. Is There Reciprocity in Trade? And the Consumption of Manufac- 

tured Commodities. By Thomas H. Dudley. Read before the 
American Philosophical Society, October 1, 1886. 8vo, pp. 9. 

17. Which is Best for the Farmers, Protection or Free Trade? An Ad- 

dress before the Agricultural Society ol Lancaster County, Deliv- 
ered at Lancaster City, Pa., February 7, 1887. By Thomas H. 
Dudley, of Camden, N. J. Answer to Col. Beverley, of Virginia, 
and Hon. Frank Kurd, of Ohio. 8vo, pp. 24. (Issued by the 
American Protective Tariff League.) 

18. The Farmers and the Tariff. A Speech Delivered at the Meeting of 

the Farmers' Congress at Chicago, November 11, 1887. By Thomas 
H. Dudley, of Camden, N. J. 8vo, pp. 16. Philadelphia : Allen, 
Lane & Scott's Printing House, .... 1887. (Reprinted as a cam- 
paign document in the Defender, New York, July 2, 1892.) 

19. How Abraham Lincoln was Nominated. An Article in the Century 

Magazine for July, 1890. Reprinted in Ihe Bulletin of the American 
Iron and Steel Association, Philadelphia, July 1(5, 1890. No. 26. 

20. Letter on Agriculture as Affected by the Tariff. North American 

Review, pp. 2. 

21. What is Protection? Symposium fjr a New York paper. Signed at 

the end, Thomas H. Dudley, Camden, August 30, 1890. 12mo, pp. 2. 

22. A Comparison between England under Free Trade and the United 

States under Protection. By Thomas II. Dudley (late United States 
Consul at Liverpool). 8vo, pp. 8. Pliiladelphia : Allen, Lane & 
Scott's Printing House, 1892. 

23. Three Critical Periods in Our Diplomatic Relations with England 

During the Late War. Personal Recollections of Thomas II. Dud- 
ley, Late United States Consul at Liverpool. Reprinted from the 
Pennsylvania Magazine of History and Biography, April, 1893. 8vo, 
pp. 22. 

1895.] l^J [Potts, 


The following valuable letter was received to day (May 16), too late for 
insertion in the foregoing, and as it forms an historical paper of especial 
interest, written by one of the last three survivors of tlie Emancipation 
Society of Liverpool's Committee of Twenty-five, the Honorary Secretary 
Col. Robert Trimble, now of Taranaki, New Zealand, who has been a 
member of Parliament there, and has held numerous political offices, it is 
an excellent supplement to the foregoing. The letter is addressed to Mr. 
Thomas H. Dudley's sister-in-law. Miss Matlack. 

Col. Trimble was the author of several pamphlets explaining and sym- 
pathizing with the action of the North, wliich we give in a footnote.* 

W. J. P. 

"Inglewood, Taranaki, New Zealand, April 18, 1895. 

" 3fp Dear Miss Matlack : — Mrs. Trimble has passed to me your letter 
of February 24 to b9 answered. I need liardl}-- say that I am glad that 
Mr. Dudley is to have a fitting biography. Upon it could be grafted a 
whole history of the exterior attitude of the United States. The work 
passed over to Mr. Dudley was to all appearances overwhelming, and was 
without precedent for guidance. It looked many a time as if he would 
break down, so heavy were tlie odds. A passionate love for his country, 
and a temper singularly equable, carried him over or around all his 

" I now, in accordance with your request, send you a tew memories of 
men and movements, looking tame enough now, after the lapse of over 
thirty years, but once instinct with life and redolent of human hopes. 
Nor was fear wanting. During the great epic struggle between the 
powers of light and of darkness there were times when it almost seemed 
as if the darkness had won. Hence we used to say, ' We do not say the 
North shall win, but we say it ought to win.' 

"Never during the tempest did Mr. Dudley despair of the State. The 
news was sometimes cruelly bad, but he always carried a head erect and 
a heart undaunted. 

* Slavery in the United States of America. A Lecture delivered in Liverpool, December, 
1861, by Robert Trimble. 

The Negro North and South. The Status of the Coloured Population in the Northeru 
and Southern States of America Compared. By Robert Trunblo. 

Popular Fallacies Relating to the American Question. A Lecture delivered in November, 
1S63, by Robert Trimble. 12mo, pp. 36. 

A Review of the American Struggle in the Military and Political Aspects, from the inaugu- 
ration of President Lincoln, 4th March, 1861, till his reelection, 8th November, 1864. By 
Robert Trimble. 12mo, pp. 48. 

The Present Crisis in America, by Robert Trimble. 1865. 12mo, pp. 10. 

These pamphlets were printed, London : Whittalcer & Co. ; Liverpool : Henry Young ; 
Manchester : Abel Heywood & Son. 


Potts.] J-'^^ [April 19, 

"I will now proceed with my discursive narrative. Previous to Presi- 
dent Lincoln's Proclamation in favour of certain forms of Emancipation, 
which was to take effect on first of January, 1863, there was a very gen- 
eral feeling throughout England that the war between North and South 
was not likely to issue in the abolition of slavery, if the North proved 
victorious. The British people are not, as a rule, well informed upon 
matters taking place abroad, and are therefore at times liable to make 
serious mistakes. When the Southern partizans proclaimed that their 
object was to get rid of the Protective System in the Tariff; and the 
Northern orators and writers kept dinning that the sole object of the 
North was to keep intact the Union, the people of this country were 
dazed. They could not understand the nice distinctions of lawyers as to 
what was Constitutional and what was not. When it was argued that the 
whole tendency of the war made for freedom, and at the same time, that 
the authorities could not constitutionally enact emancipation by a vote of 
Congress, a shrug of the shoulder sufficiently showed' incredulity. 
When, however. President Lincoln issued the Proclamation above 
referred to, it had an instantaneous effect, and the friends of the United 
States were able to speak and write with a confidence they never before 
had experienced. It is true that in the north of England, and particu- 
larly in Lancashire, there was a strong feeling that the action of our gov- 
ernment should in no way be twisted into a support of the Slave States ; 
and from the time of the sailing of the Alabima, in August, 1862, tliis 
feeling rapidly assumed a definite shape. When, therefore, the Presi- 
dent's Proclamation reached England the friends of Emancipation saw 
that the time for united action had come. This was recognized in Man- 
chester sooner than in Liverpool, and this was natural, for Manchester 
was filled with workingmen who had proved by their conduct all through 
the struggle that they held that man was not to live by bread alone. In 
the midst of want they stood firmly by their convictions. In Liverpool, 
on the other hand, the cotton trade was predominant. Men 'on cliange' 
were unmistakably ' Southern ' in their proclivities, that is, the majority 
of them. The mere rabble took tlie same side. All that these could under- 
stand was that whereas they formerly earned a comfortable living in 
handling imported cotton, they were now idlers living on the rates, or 
depending upon very precarious employment. To them 'cotton' was 
still 'king.' The Emancipationists in Manchester had the masses to aid 
them, and they therefore took action first, by establishing an Emancipa- 
tion Society. In Liverpool the rich and the lowest were acting together, 
whilst the great body of shopkeepers and the handicraftsmen were favor- 
able to the North. Of course these classifications must be taken as only 
approximately accurate. 

" Such vv^as the state of feeling in Liverpool when an advertizement 
appeared in the newspapers calling a meeting to assemble in the ' Claren- 
don Rooms,' early in the afternoon of the 17th January, 1863. I was 
present and was surprised to find so many influential merchants in 

1895.] 1^^ [Potts. 

attendance. Not knowing many of them, I guessed that the South was 
hirgely represented, and that not unlikely sympathy with the North 
would be a minus quantity. The chair was taken by Mr. John Crop- 
per, a man deservedly respected in Liverpool and far beyond, for his 
deeds of benevolence. I think it was Mr. Robertson Gladstone (elder 
brother of Mr. William E. Gladstone) that moved the following reso- 
lution : 

'"That in the opinion of this meeting the war now raging in the 
United States of America originated in the institution of slavery and in 
the antagonism which that system inevitably presents to the institutions 
of freedom ; that in the great national crisis now created by the announce- 
ment of the Emancipation policy, the Federal Government is entitled to 
the generous sympathy of every Englishman, and to the moral support 
which such sympathy always affords ; that to ensure these from the in- 
habitants of Liverpool it is now deemed advisable, by means of lectures 
and public discussions, to fully instruct the public mind on the true con- 
ditions of the American question, preliminary to a general aggregate 
meeting for the adoption of an address to President Lincoln.' 

"A debate of an interesting character sprung up. Mr. James Spence,* 
the S of The Times and author of The American Union, was present, and 
in eloquent terms denounced the hypocrisy of the North and praised the 
chivalry of the South. Slavery was pronounced 'scriptural ' and ' patri- 
archal,' and poor Onesimus was trotted out once more to prove that injus- 
tice is the very highest form of justice. He sat down with an air of tri- 
umph which I can never forget. Applause was loud and continuous. 
Before it was over a man that I then only knew by name, but knew inti- 
mately ever after, was on his feet waiting for attention. Mr. Spence was 
a dainty-looking little man, with a pleasant voice and graceful presence. 
The man about to reply (John Patterson by name) was a burly Ulster- 
man with loud voice and energetic action. As soon as Mr. Patterson got 
a hearing he took a little Bible out of liis pocket and first addressed him- 
self to the task of answering the Scriptural arguments of Mr. Spence. He 
made the house ring with denunciations of man-stealers and of oppressors 
of the poor. The year of jubilee was not forgotten — in fact, the little 
pocket- Bible had the effect of a gigantic bomb-shell. Neither before nor 
since have I heard so able an ex tempore rejoinder. There was no occa- 
sion for further discussion. The resolution was put and carried almost 
unanimously. An Emancipation Society was founded and a committee 
formed to carry out the objects of the resolution. On the motion of our 
old friend, Mr. C. E. Rawlins, I was asked to be Honorary Secretary, and 
thus came my official connection with the Socitjty which lasted till the 
end of the war. 

' ' As you wish to know the names of those most active amongst us, I give 

* [A different person from the James Spence of the firm of Spence, Richardson & Co., 
of Liverpool, whom we have mentioned elsewhere in the foregoing article, a strong 
friend of the United States.— W. J. P.] 

Potts.] J oZ [April 19, 

the uames of the Committee as follows, reserving a few words to be said 
about two or three of them afterwards : 

Rev. J. S. Jones, Mr. John Turner, 

" Hugh S. Brown, " T. R. Aruott, 

" Charles M. Birrell, " Peter Stuart, 

" John Robberds, " David Stuart, 

Mr. John Cropper, " George Golding, 

" I. B. Cooke, " Robert Varty, 

" Denis Duly, " Andrew Leighton, 

" Robertson Gladstone, " E. K. Muspratt, 

" James R. JeflFery, " Maurice Williams, 

" John Patterson, " "William McGowan, 

" Charles E. Rawlins, " Charles Wilson, 

" Charles Robertson, " Robert Trimble, 

" Richard Sheil, 

" Besides the above named there were many others that both worked 
hard and subscribed liberally to our objects, such as the late William 
Crosfield and his two sons, Thomas Ellison, S. Bull3% etc. 

" The committee lost no time in beginning its work. In every district of 
the town meetings were held preparatory to a great central demonstration 
at the Amphitheatre. We were followed everywhere by paid organizers 
of disorder ; but notwithstanding this opposition we carried our resolu- 
tions at every meeting, including that at Birkenhead. 

"On Thursday evening, 19th of February, we held a great meeting at 
the Amphitheatre, where we had much organized opposition ; but all our 
resolutions were carried. We had many other occasions for demonstra- 
tions and plenty of private work. It is a remarkable fact that our oppo- 
nents never had a public meeting from the opening of the war till the 

"Perhaps I ought to say something of the meeting to hear Mr. Beecher ; 
but the truth is I had no faith in its success, and although we carried our 
resolutions by overwhelming majorities, yet I think it did us no good. 
He did not understand his audience, and was too 'bumptious.' 

"You ask about garments made for the fugitive negroes by my wife and 
other ladies. I have no particulars of the work done. I have a memo- 
randum written on one of my pamphlets showing the final result of the 
eflbrts for the Freedmen and I have the original subscription list some- 
where. I saw it quite recently amongst some papers, but for the moment 
cannot find it. The figures are : 

Cash subscriptions £3170 2s. Od. 

Computed value of clothing 362 19 9 

Total , £-2533 Is. 9d. 

1S95.] • lOD [Potts. 

" After the war closed I thought we might get up a fuud of £10,000, but 
on the advice of Mr. Dudley I dropped the idea. Some time afterwards a 
gentleman called upon me one morning with a note from his father en- 
closing £50 to be given to certain American travelers if I thought well of 
it. The sou said that if I thought it desirable, his firm would give £1000 
to begin a subscription worthy of the town. I sent once more to Mr. 
Dudley, giving him in confidence the name. After mature thought, he 
again gave an opinion similar to that he had given before. Neither of 
these gentlemen had joined our agitation. 

"With regard to Mr. Dudley's eleven years' work in Liverpool, I would 
like to say that I had the good fortune to enjoy his friendship from the 
middle of the war until lie resigned his oflice of Consul, and can say that 
he was an indefatigable worlier, tliough all the time labouring under great 
physical disabilities. He kept a strict watch upon the enemies of the 
United States, and at the same time was urbane to all who had any busi- 
ness at the consulate. When the full history of that revolutionary period 
comes to be written his name will be found amongst the most honourable. 

"A life perhaps too busy has prevented me from keeping documents 
concerning passing events, but what I have here written is from memory 
aided by some odds and ends and preserved letters. I have purposely ab- 
stained writing about war ships, blocliade runners, confederate bonds and 
so on, as, if I began, it would require volumes to finisli the story. In 
hunting through old papers in the last few days I find I have still a pretty 
complete set of my letters exposing the celebrated cotton loan. I am glad 
to think that the eventual sufferers were not unwarned both from the 
commercial and the moral side. 

"My pamphlets are out of print, so I cannot send you a set, but I find I 
have a few copies of the three latest and I send you two of each of them. 

"You ask for a few incidents which might prove interesting. I have 
given you one about our old friend, John Patterson, but now recall his 
name to say that he kept full reports of every meeting held, and all pub- 
lished correspondence that he noticed. I dare say his family has them. 

"Charles E. Rawlins wrote the best book brought out amongst us. It is 
called American Disunion. It was published in April, 1863. It has only 
one fault. He shows himselfquite too charitably disposed to his opponents; 
but that was his constant characteristic. You may have the book in your 

" Thomas Ellison, a cotton broker, wrote a book called Slavery and Se- 
cession. It was published just before that by Mr. Rawlins. 

"The Rev. J. S. Jones was remarkable for his broad sympathies. He 
was very 'high church' in his views, but he visited, preached in, and 
lived in the vilest part of Liverpool, and at a nominal salary. I believe he 
has now similar surroundings in London. He stood second to none 
amongst our friends. 

"The Rev. Charles M. Birrell was a leading Baptist minister, and 
joined us on account of the moral aspect of the question at issue. He 

Potts.] l64: [April 19, 

spoke at our Amphitheatre meeting. He was a very retiring man, but lie 
was roused to vehemence when the mob tried to howl him down. I can 
never forget tlie close of his speech. He said that in the old anti-slavery 
agitations he had stood in the same place and had to face a similar hostile 
multitude ; and then rising to his full height, his face aglow, and lifting 
his right hand towards heaven, he said, ' We conquered then and we will 
conquer now.' He touched a chord that vibrated throughout the vast as- 

"A word or two about Charles Wilson, and T have done. He was a 
veritable 'Fighting Quaker,' if ever there was one. 

"He was Chairman of our Executive Committee, and to him was largely 
owing the aggressive attitude assumed at the beginning and continued 
till peace was proclaimed. With all this never man could be more reck- 
oned upon to keep his temper. His services to the cause were beyond 

"Perhaps it looks a little insidious to pick out a few, out of many 
friends, for special mention ; but these were serviceable above measure. 

"Of the twenty-five members of the committee as already given in list, 
I believe twenty-two have gone to their rest — their work done. I believe 
I am right in stating that Messrs. Jones, Muspratt and I, are the last sur- 
vivors ; and of Mr. Jones, I am not quite sure as it is a dozen years since I 
have heard of him. 

" I remain, my dear Miss Matlack, 

" Yours sincerely, 

"Robert Trimble. 
"Miss Matlack, The Grange, 
Camden, N. J." 

1895.] 135 [Cope. 

Fourth Contribution to the Marine Fauna of the Miocene Period of the 

United States. 

By E. D. Cope. 

{Read before the American Philosophical Society, Apiril 5, 1S95.) 

The three preceding "Contributions" appeared ia ihe Proceedings of 
the Acadtmy of Natural Scie?ices of Philadelphia for the years 1867, 1868 
and 1869 respectively. Their subject matter is almost exclusively confined 
to the description of the remains of Cetacea which occur in the marine 
deposits of middle Neocene age of the Atlantic coastal region, and more 
exactly, in the Yorktown formation of Dana, or the Chesapeake forma- 
tion of Darton and Dall. The present paper continues the description 
of these forms preliminary to an illustrated memoir on the subject. The 
word "marine " has been introduced into the title to distinguish the series 
from the numerous papers which have appeared on the paleontology of 
the lacustrine neocenes of the West. For the sake of uniformity the term 
Miocene is retained. 



The genus Paracetus has been recently proposed by Lydekker* to 
include members of this family which possess a well-developed series of 
teeth in the (?) premaxillary and maxillary bones. It is up to the present 
time represented by one species, the Paracetus pouc7ietii Moreno, of the 
Santa Cruz bed of eastern Patagonia, of the district of Chubut. Tlie 
present species is apparently not distaatlj' related to that one. 

This genus stands near to Cogia Griy, and can scarcely, with present 
information, be referred to a distinct family. The presence of superior 
teeth cannot alone be regarded as necessitating this course, as they occa- 
sionally occur in Cogia. Thus in C. sima Owen, from the coast of India, 
there are two teeth at the anterior extremity of the upper jaw, and a male 
of a rather small species preserve.! in the U. S. National Museum from 
the eastern coast of the United States exhibits the same character.! A 
male in the Museum of the Wistar Institute of the University of Pennsyl- 
vania:): from the coast of New Jersey at Sea Isle City, has no teeth in the 
upper jaw. The genus Paracetus seems to me to be only distinguishable 
from Cogia by the posterior extension of the tooth series to the posterior 

* Anales del Museo de la Plata : Paleonlologia Argentina ; II : Cetacean Skulls from Patagonia, 
p. 8, Plate iii. 

t For the opportunity of examiaing this specimen I am indebted to Dr. Goode, Director 
of the Museum. 

X My thanks are due to Prof. Horace Jayae, Director of the Wistar Institute, for the 
opportunity of studying this specimen. 

Cope.] ■l*^^ [April 5, 

part of the maxillary bone. Perhaps when the skeleton is known other 
characters will be detected. 

The name of this genus is stated by Dr. Lydekker in the text of his 
description to be as I have cited, but the name Hypocetus stands at the 
top of the paragraph in which this statement is made, and is also attached 
to the plate in which it is figured. I have followed Dr. Lydekker's ex- 
pressed intention rather than what may be a lapsus calami or other mis- 

Char, specif — As the posterior border of the skull and the extremity 
of the muzzle of the specimen are broken off, an exact idea of its outline 
cannot be given. However, the form was probably much as in the P. 
poucJietii, and more elongate than in the species of Cogia. This form is 
subtriangular, with the basal border convex, and the two lateral ones 
slightly concave. The muzzle is probably, however, produced into a ros- 
trum, as the maxillary borders are parallel at the point where it is broken 
off. On the right side, where the maxillary bone is best preserved, there 
are eight alveoli ; the teeth are lost. The lateral border of the maxillary 
bone overhangs the tooth line considerably in front, and spreads away 
from it outwards and backwards in a gradually thinner edge to the deep 
notch which bounds the supraorbital region anteriorly. The rise of the 
anterior border of the facial basin is within this notch, and not without it, 
as in the species of Cogia ; and is gradual, attaining a considerable eleva- 
tion immediately in front of the temporal fossa, and a little within the 
vertical plane of the supraorbital border. The premaxillary bones are 
separated by the deep vomerine channel which they partially overroof on 
each side, and are separated posteriorly by the prenarial part of the vomer 
posteriorly. The latter forms an elevated crest directed forwards and 
unsymmetrically to the right. The premaxillaries spread gradually out- 
wards posteriorly to a tliin margin, and are concave opposite to the vom- 
erine crest which separates them, tliat of the left hand descending to the 
nareal orifice. The skull is broken off at the blow-holes, so that it is dif- 
ficult to affirm positively whether the right blow-hole existed or not. It 
was apparently present, but smaller and posterior in position to the right 
one. The inferior surface of the maxillaries slopes upwards and outwards, 
leaving the inferior face of the vomer quite prominent below. The vomer 
forms ihe half of a circle in transverse section above, and extends as far 
anteriorly as the specimen extends. 

There is a large supraorbital foramen between the preorbital notch and 
the rising edge of the facial crest, as in the sperm whale ; and there is a 
smaller one in a direct line posterior to it just exterior to a more elevated 
part of the crest, within a line above the posterior part of the supraorbital 
border. A. longitudinal groove anterior to the supraorbital foramen is 
pierced in its fundus by two foramina. Anterior to the groove a depressed 
foramen pierces the maxillary bone near the premaxillary border. Ante- 
rior and interior to the corresponding foramen of the left side a depressed 
foramen pierces the premaxillary bone. This foramen is absent from 

1895.] J-'J < [Cope. 

the right side. In the other hand the right premaxillary is pierced near 
the aaterior part of the vomerine crest by a large round foramen, which 
is wanting from the left side. A large foramen pierces the inner side of 
the lateral crest half-way to the superior border, and opposite the middle 
of the left blow-hole. 

The dental alveoli are subrouad, and are separated by narrow septa. 
They are not deep, the deepest equaling 50 mm., so that the teeth have 
been easily lost. 



Length of fragment on middle line 800 

Width of skull at supraorbital notch ; left side restored 800 

Width of muzzle where broken off 173 

Widtli of right premaxillary at middle of length 100 

Width of left premaxillary at middle of length 150 

Width of right premaxillary at vomerine keel 100 

Width of left premaxillary at vomerine keel 170 

Elevation of lateral crest above orbit (apex broken off) 310 

Length of series of eight teeth 165 

From Drum Point, Chesapeake Bay, Maryland. 


ZipJiivice Flower ; Ziphiidce Gill {ZipMus preoccupied). 
Pelycouhamphcs pertortus, gen. et sp. nov. 

Char. gen. — Allied to Choneziphius, but the solid rostrum of the vo- 
mer bifurcates posteriorly and embraces a basin which takes the place of 
the maxillary basin of the right side, and reduces that of the left side to 
very small dimensions. Blow-holes very unsymnietrical, the left only 
preserved in the specimen. 

This genus has certain characters which ally it to the Physeteridse. 
The internareal part of the vomer is directed very obliquely upwards to 
the left, and then forwards to the left on the superior surface for a dis- 
tance, when it turns to the right as in Paracetus and Cogia. Instead of 
terminating at this point as in those genera, it assumes the swollen form 
and dense structure seen in the species of Clioneziphius, and besides send- 
ing forwards the usual rostrum on the median line, it continues to the 
right, and apparently spreads out into a thin plate which forms the floor 
of a wide basin, and which apparently continues to and forms its right 
border, overlying the posterior plate of the maxillary. This basin is repre- 
sented in Paracetus mediatlanticus by a longitudinal shallow concavity of 
the right side of the superior keel of the vomer, which is a rudiment as 
compared with the basin in the present genus. The rostrum of the vomer 
extends to the narrow extremity of the specimen, where it is broken off. 
The fracture exhibits no tube or channel. 


Cope.] loo [Aprils, 

It would not be surprising if this genus should prove to be related to 
Anoplonassa Cope, which has the long symph3^sis mandibuli of the Ph}^- 
seter, with the nearly edentulous character of the Choneziphiidte. 

Cfiar. specif. — The species is founded on a rostrum similar in its mode 
of preservation to Ziphioids in general. Nothing is preserved posterior to 
the nares, and the edge of the left maxillary, with the end of the muzzle, 
is broken off. All the parts are coossified. 

The anteroposterior diameter of the basin exceeds by a little the trans- 
verse. The bottom is nearly regularly concave, with a few shallow foss« 
at the right side. The part of the median vomerine ridge which forms 
the anterior half of tlie left border of the basin is thicker than that which 
bounds the posterior half of the same, and it presents an angular tuber- 
osity horizontally to the left. The fractured edge of the left maxillary 
shows that it was thin at this point, and at no point had it when perfect 
any considerable horizontal extension to the left side. It is separated 
from the vomerine ridge by a groove, which extends from the left maxil- 
lary basin to a foramen, which is situated at a point in advance of the great- 
est width of the vomerine rostrum. A corresponding foramen exists on 
the right side, which is opposite the anterior border of the central basin. 
The vomerine rostrum contracts rapidl}' forwards, forming a prominent 
rounded ridge, and the premaxillaries rise to it on each side. The maxil- 
laries are little expanded, and their superior surface is subhorizontal and 
is moderately rugose. It is much thicker on the right side than on the 
left, and is probably also wider on the right side. On the left side it is 
bounded below by a deep groove from opposite the anterior part of the 
left maxillary basin to a point in front of and below the supramaxillary 
foramen of the same side already described. On the right side there is a 
similar foramen which bears the same relation to the supramaxillaiy fora- 
men of the same side. In front of the foramen on the left side the groove 
continues. On the right side the groove does not continue, but is suc- 
ceeded forwards by a narrow vertical wall to the anterior extremity of the 

On the inferior side the middle line is deeply grooved to a point oppo- 
site the middle of the superior median basin. On each side of the groove 
the palatal aspect of tlie maxillary slopes slightly upwards, and on the 
left side rolls up to a thickened inferior border of the inferior or submax- 
illary groove. On the right side the palatal face of the maxillary turns 
up more obliquely to the border of the superior median basin. 

Measurements. mm. 

Total length of specimen 330 

Length from front of median basin 150 

T -1 J- I F A- ^ • f anteroposterior 160 

Inside diameters of median basin. .J ' 

( transverse loO 

Depth of basin 64 

Width of rostrum in front of basin 80 

1895.] l^J [Cope. 

Measurements. mm. 

Width of rostrum at end of specimen 35 

Width of lateral edge of right maxillary at inferior maxil- 
lary foramen 25 

Length of inferior keel of vomer 120 

This species exhibits the most unsymmetrical cetacean cranium known 
to me. Its size was probably about that of the ChonezipMus indicus of the 
present ocean. Its exact locality is unknown, but it probably was ex- 
posed to the action of water for a considerable time, after being washed 
from its position of deposit. It has been bored by Pholades in several 


I have remarked that the Mysticete with its single family the Balse- 
nidffi * " would seem to have derived their descent from some form allied 
to the Squalodontidse, since their nasal bones are more elongated than 
those of the Odontoceti, and in Plesiocetus " (Celotherium) "the supe- 
rior cranial bones show some of the elongation of that family." This 
elongation of the superior crai^ial wall is not seen in the genus Squalodon, 
but is moderately developed in the genus Prosqualodon of Lydekker, 
founded on the P. australis Lydd. (I c.) from Patagonia. It is exhibited 
in a still more marked degree by the genus Agorophius g. n. Cope, which 
is represented by the Zeujlodon pygmceus of Miiller, which was referred 
to Squalodon by Leidy.f The form of the skull in this genus approaches 
distinctly that of Cetotherium of the Balsenidfe, and the permanent loss 
of the teeth would probably render it necessary to refer it to the Mysta- 

Stages of transition from, some such genus as Agorophius to the typical 
whalebone whales are represented by several genera from the Yorktown 
beds. Theoretically the loss of teeth bp failure to develop would be ac- 
companied by the loss of the interalveolar walls, leaving the dental groove 
continuous and separate from the dental canal. A genus displaying these 
characters has not been discovered, but I have no doubt that it will be. 
The new genus Siphonocetus Cope exhibits the groove roofed over by 
ossification of the gum, and distinct from the dental canal. The genus 
Ulias indicates that a still farther degeneracy took place, in the fusion of 
the dental groove and dental canal, while the groove remained open. In 
Tretulias the same condition persists with the addition that the gingival 
passages and foramina are present, as in the genus Siphonocetus, and in 

*"0n the Cetacea," American Naturalist, 1890, p. 611 ; Meyer, Studien iiber Sdugethiere, 
Jena, 1886, p. 191. 

t Extinct Mavim. Dakota and Nebraska, 1869, p. 420, PL xix, Fig. 8. It is doubtful 
■whether this geuus should be referred to the Zeuglodontidae or the Squalodontidse. TJie 
relations of the maxillary and premaxillary boues posteriorly resemble most those of 
the latter family. It differs from Prosqualodon in the contact of the temporal fossae on 
the middle line above, and in the greater elongation of the frontal and probably nasal 

Cope.] 14:0 [April 5, 

llie later genera. In Cetolherium and in later Balixjuldse tbe groove and 
canal are fused, the gingival roof is complete, and it is perforated. It 
would appear, then, that Ulias may be descended from the undiscovered 
genus above mentioned, while Tretulias is descended from Siphonocetus. 
The exclusively Neocene genera may be tabulated as follows : 

I. Alveolar groove and dental canal distinct. 

Alveolar groove open Not discovered. 

Alveolar groove roofed over and perforate Siphonocetus Cope, 

II. Alveolar groove and dental groove confluent in a giugivodental 

Gingivodental canal open ; no gingival canals Ulia^ Cope. 

Canal open ; gingival canals at one side Tretulias Cope. 

Canal with complete and perforate roof. Cetotheriam Brandt. 

SiPHONOCKTUS PRisccs Leidy, gen. nov. Balaena prisea Leidj^ Pro- 
ceeds. Academy Pldlada., 1854, p 308. Eschrichtius priscus Leidy, 
Cope, Proceeds. Acad. Philada., 1869, 11. Leidy, Extinct Mamm. 
Dakota and Nebraska, 1869, p. 441. Infra Plate vi. Fig. 8. 
Specimen in Museum of Academy of Natural Sciences of Philadelphia. 

Siphonocetus expansus Cope. E&chric7iiius expansus Cope, Proceeds. 
Acad. Philada., 1869, p. 11. 
The two mandibular rami ascribed to this species are the property of the 
Maryland Academy of Sciences. The collection of Johns Hopkins Uni- 
versity contains a fragment of a ramus of an individual of rather smaller 
size than the types. Plate vi. Fig. 5. 

Siphonocetus clabkiancs Cope, sp. nov. Plate vi, Fig. 4. 

In the collection of the Johns Hopkins University there are portions of 
mandibular rami of two species of Siphonocetus. The cranium of this 
genus is unknown, but it is probably similar in character to that of the 
Cetotheiium of Brandt. This genus differs from Balsenoptera in having 
the elements between the supraoccipital and the nasals much elongated, 
so that there is a sagittal crest of greater or less lenglh, and in the non- 
union of the dia- and parapophyses into a vertebral canal,* in which it 
agrees with Eschrichtius of Gray. Some of the rami described belong 
possibly to species of Balajnoptera, and it remains for future discoveries 
to ascertain which these are. 

One of the species above referred to is the Siphonocetus expansus Cope.f 
The other species differs from all of those known to me. In dimensions 
it exceeds those of any of the species described in this paper, and is only 
exceeded by the species which I have described (I. c.) under the names 

*See American Naturcdist, 1890, p. 611, where these genera are characterized ; but Van 
Beuedeu's name, Plesiocetus, is used for Cetotherium, and the latter name for Eschrich- 
tius of Gray. 

t Proceeds. Academy Philada., 1869, p. 11. 

1895.] 141 [Cope. 

of Cetotherium leptocentrum and C. ceplialus. It compares more closely in 
dimensions with tlie C. polyporum from the Chesapeake formation of 
North Carolina. From the last named, audfrom the C cephalus, it differs 
in the robust form of the ramus, resembling in this respect rather such 
species as C. palceatlanticum, 8. priscus (Leidy), and S. expansus. 

The fragment representing the S. dnrkianns is from the part of the 
ramus anterior to the base of the coronoid process, and is about 350 mm. 
in length. Both faces are convex, but the external is more strongly so 
than the internal. The superior part of the latter is, however, not hori- 
zontal as in the 8. priscus, nor is the internal face subhorizontal as in 
8. expansus. The two faces unite above at an obtuse angle, which if 
perfect, would be nearly right. The inferior edge is on the contrary a 
ridge which would be acute were it not rounded. The section of the 
ramus is therefore lenticular, with one side more convex than the other. 
Posteriorly the external convexity becomes greater, and the internal con- 
vexity rises towards the base of the coronoid, leaving a gentle concavitj' 
above the inferior border. The external foramina are large, distant, and 
only a little further below the superior ridge than those of the inferior in- 
ternal row. The latter are in two series ; those of the superior smaller 
and quite near the superior edge ; the others larger and situated lower 
down, and separated by intervals of about 40 mm. No trace of Meckelian 
or alveolar grooves. 



vertical 95 

transverse 72 

I vertical 114 

\ transverse 99 

Diameters at distal end. . . 
Diameters near coronoid. 

The presence of two internal series of foramina distinguishes this spe- 
cies from any of those known to me. The rami are less compressed than 
those of the G. pusillum, while the external pasition of the external fora- 
mina distinguishes it from the 8. priscus (Leidy). The presence of an 
acute-angled ridge below distinguishes it strongly from the G. palwatlan- 
ticum. The species was larger than the Cetotherium megalophysum above 
described, having probably attained a length of forty feet. 

I have dedicated it to Prof. William B. Clark, of the Depirtment of 
Geology and Paleontology of the Johns Hopkins University, to whom I 
am under obligations for the opportunity of studying most of the mate- 
rial here described. The label attached to the specimen states that it was 
dredged up near Point-no-Point, Chesapeake Bay, and was presented to 
Johns Hopkins University by Conrad Miller. 

Ulias moratus, gen. et sp. nov. Plate vl. Fig. 1. 

Char, gen — Mandible with the ginglvodental canal open throughout 
most of its length, closed only near its apex. Gingival foramina repre- 
sented by a few orifices on the alveolar border near the distal extremity. 

Cope.] 14-4 fApril 5, 

This form is of much interest as representing in adult life a stage which 
is transitional in typical Baltenidie. The alveolar groove is continuous 
with the dental canal, and is permanently open. It is probable then that 
this genus possessed teeth during a longer period than the existing Balse- 
nidte, and that they were retained in place by a gum so long that the 
canal could not close as is the case in the latter. The absence of the long 
series of mental foramina characteristic of the true whales is further evi- 
dence to this effect. 

Van Beneden, in his Descriptions des Ossemens Fossiles des Environs 
d'Anvers, describes a Balienid under the name of Balcenula balcenopsis 
which is represented by numerous individuals. I agree with Lydekker 
(Catalogue of Fossil Mammalia in t/ie British Museum, Vol. v) that Van 
Beneden has not given sufficient reason for separating the species gen- 
erically from BahBna. There is also considerable diversity between indi- 
viduals referred to the species. In a small specimen, a narrow alveolar 
groove is present, but Van Beneden makes no reference to the cliaracter 
in his description. As the groove is closed in large specimens figured, it 
is possible that M. Van Beneden regarded the character as one of imma- 
turity. This may be the case, as the groove figured by Van Beneden is a 
very narrow one, and is quite different from the widely gaping channel 
in the Ulias moratus, which is founded on an adult animal. 

Chai: specif. — This species is founded on a nearly entire right mandib- 
ular ramus. The condyle and angle are wanting, as is also a piece from 
tHe proximal part of the distal third of the length. This piece was found 
with the rest of the specimen, but has been, for the present at least, mis- 

The ramus is moderately curved horizontally, but is not decurved ex- 
cept towards the angle. A slight convexity of the inferior margin exists 
at the anterior part of the proximal two-fifths of the length. The supe- 
rior border is occupied with the widely open alveolar groove, which grad- 
ually contracts in transverse diameter distally, so as to be closed for the 
terminal fourth of the length. On this region two or three large foramina 
issue from it on the middle line above, and the terminal mental foramen 
issues at the superior extremity of the distal end, a little below the inter- 
nal ridge on tlie external side of it. Of the borders of the alveolar groove 
the internal is much lower than the external on the proximal sixth of the 
length. The edges are then equal for a short distance, and are acute. 
The internal then becomes the more elevated, and continues so until its 
point of union with the external. The internal wall of the groove is at 
first narrow, and its superior edge from being acute becomes narrowly 
rounded, but becomes more obtuse distally as the wall becomes thicker. 
The internal side of the ramus is very little convex. The external side of 
the ramus is strongly convex in vertical section, hence it is that the exter- 
nal edge of the groove becomes wider as it becomes lower, until at the be- 
ginning of the distal third of the length it forms a plane distinct from the 
convex external face. This external convexity growing rapidly less, the 

1895.] 14:d [Cope. 

superior edge becomes proportionally narrower, and at the extremity of 
the ramus is about as wide as the internal superior ridge. The extrem- 
ity of the ramus is, in profile, truncated obliquely backwards and down- 
wards to the obtuse angle at which it meets the slight rise in the outline of 
the inferior margin. The external plane is slightly concave. The internal 
face exhibits two surfaces, a superior convex portion which widens down- 
wards and backwards, and an inferior wider flat portion separated from 
the superior by a straight ledge. The inferior border of the ramus is rep- 
resented by an angle of about 70° for the greater part of the length. Below 
the region where the alveolar borders are equal the angle is more nearly 
right owing to the increased convexity of the external face. It is rounded 
below the coronoid process (which is broken off) and widens towards the 
angle. It is rounded on the distal third, becoming narrower rapidly 
towards the distal extremity. 



Length of ramus restored ; on curve 1.900 

Length of proximal fragment 790 

Length of distal fragment 390 

Transverse diameter near condyle 070 

Transverse diameter where alveolar borders are equal 060 

Transverse diameter at distal end of long fragment 057 

Vertical diameter where alveolar edges are equal 073 

Vertical diameter at distal end of long fragment 074 

Vertical diameter at proximal end of distal fragment 079 

Transverse diameter at proximal end of distal fragment. . . .049 
Vertical diameter of extremity 085 

Besides the generic characters, the V lias mora tus presents various spe- 
cific difl"erence3 from the various species of Balaenidae which are known. 
The flatness of the internal face and the lack of decurvature distin- 
guishes it from several of them ; and the absence of fissure at the distal 
mental foramen separates it from others. I know of no species which 
has only one series of foramina and that one on the median line, on the 
distal fourth, except the present one. The size of the ramus resembles 
that of the CetotJierium palceatlantieum of Leidy, and represents a species 
of about twenty -five feet in length. 

Tretulias buccatus, gen. et sp. nov. Plate vi. Fig. 3. 

Char. gen. — Dental canal obliterated, and dental groove without osseous 
roof. Gingival canals and foramina present at one side of the alveolar 

The presence of the gingival canals and foramina in this genus, and 
their absence in Ulias, suggests two alternative phylogenies. First, it is 
possible that Tretulias is derived from Siphouonetus by failure of the roof 
of the gingival groove to develop external to the gingival canals by re- 

Cope.] 1^4: [Aprils, 

tardation. Or, second, it may have been derived from Ulias or its ances- 
tor, by development of the roof about the gingival canals only, leaving 
the remainder of the groove open. In the latter case it represents a stage 
intermediate between Ulias and Cetotherium. But one species is known 
to me. 

Ckar. specif. — This species is represented by parts of the mandibular 
rami of two individuals, both preserved in the Museum of Johns Hop- 
kins University of Baltimore. One of these measures 607 mm. in lengtli, 
and is in fairly good preservation ; the other is a shorter fragment, and is 
considerably worn. They agree in all respects. 

The longer fragment is gently curved both inwards and downwards. 
It is compressed anteriorly, and more depressed posteriorly, so as to be 
but little deeper than wide. The external face is very convex, more so 
posteriorly than anteriorly, so that that part of the superior wall which is 
developed is horizontal, as in the Siphonocetus priscus Leidy. The internal 
face is little convex, and is slightly concave on a line near to and parallel 
to the inferior border. Generally this angle is obtuse, and is a little more 
than right ; anteriorly, near the extremity it becomes more ridge-like. 
Posteriorly the section of the ramus represents more than a half-circle, 
the base being the internal face. The internal basal concavity referred to 
disappears posteriorly, but its place is occupied by a Meckelian fissure, 
which extends along the bottom of the groove, disappearing at the end of 
the terminal two-fifths of the length. 

The gingival canals are very oblique, extending horizontally forwards 
and outwards. The internal foramina issue at spaces of one and two 
inches, and they are not connected by a superficial groove. The superior 
(external) series are equally oblique, extending forwards and opening 
obliquely upwards. Only two of these canals are present on the speci- 
men, and these are on the posterior two-fifths of the length. They are 
not complete on the external side, and are therefore only grooves. The 
common canal is open external to them, and separates the superior from 
the external face of the ramus. It has not the form of the section of the 
ramus as in other species, but is shallow, and with its long axis oblique 
to that of the section, and parallel to that of the superior oblique part of 
the external face. It is shallower than in the Ulias moratus, and the 
species of Cetotherium, and is separated by a wide osseous space from the 
inferior border. That tliis form is descended from one with a larger canal 
is indicated by the fact that the fractures of the ramus display a closed 
fissure extending from the floor of the canal vertically downwards. The 
canal is overhung on the inner side by a narrow free border of the supe- 
rior perforate wall. 



Length of fragment 607 

Diameters posteriorly { ^"tical 077 

t. transverse 078 

1895.] 145 [Cope. 

Measurements. M. 

Diameters more anteriorly { "vertical 070 

t- transverse 06o 

Diameters near distal extremity \ ^^^ ^^'^ 

t. transverse 056 

For a length of 200 mm. from the anterior extremity the borders of the 
gingivodental groove are sufficiently well preserved to demonstrate that 
it was not closed. The edges posterior to this are more or less worn, so 
that the roof might be supposed to have been broken away in the absence 
of other evidence. This is, however, forthcoming, for the internal border 
is so far preserved near the posterior extremity for a space of 135 mm. as 
to show that no roof has existed. 

Omitting consideration of the generic characters, the following com- 
parisons with other species may be made. In the TJUas moratus the gin- 
givodental groove is deeper and narrower, and the inner edge is much 
narrower. The external face is not so convex. The Siphonoeetus priscus 
of Leidy resembles it more nearly in form, but the superior (external) 
foramina are not so far inwards, and the two canals taken together con- 
form nearly to the outline of the ramus in section, which is far from be- 
ing the case in the TretuUas buccatus. There is no Meckelian groove. 
In the Cetotherium palmatlanticam Leidy, the external face is not so con- 
vex, and the internal gingival canals are, according to Leidy, "directed 
upward and moderately forward." In the T. buccatus they are directed 
forwards horizontally, and very little upwards. 

Dr. Leidy has regarded the presence of a Meckelian fissure on the 
ramus of G. palceatlanticum as a speciflc character, and possibly as gen- 
eric, as he has given a new generic name to it,* without diagnosis. This 
fissure I have not observed in any of the rami described by me, except 
in the case of the present species. It is figured by Van Beneden in some 
of the Balnenidae of Antwerp, and is stated by him to be common to all 
the Bahenidfe. It is, however, not visible in many recent skeletons, and 
I am inclined to doubt whether it is normal in adult animals. When the 
rami of recent Balaenidae dry, they sometimes split along the line of the 
primitive Meckeliian groove, but not always. It remains to be seen 
whether this is the origin of the fissure in the present species and in the 
jaw described by Prof. Leidy. The generic name proposed by Prof. 
Leidy (Protobalaena) is preoccupied by Van Beneden (1867). 

Cetotherium pusillum Cope, Amer. Naturalist, 1890, p. 616. 
Eschrichtius piisillus Cope, Proceeds. Acad. Nat. Sci., Phila., 1868, p. 191 ; 
1869, p. 11. 
The fragment of the ramus of this species above referred to is longer 
than any that have come under my observation, which now number five 
individuals. Its length is 723 mm., and the diameters at a fracture near 

* Extinct Mamm. Dakota and Nebraska, 1869, p. 4i0. 


Cope.] ^^^ [Aprils, 

the middle are as follows : vertical, 71 mm.; transverse, 47 mm. It is a 
little larger than those I have seen hitherto, but agrees with them in every 
respect. Plate vi. Fig. 6. 

Cetotherium megalophysum, sp. nov. 

This species is established on a cranium which is complete from the 
condyles to near the anterior extremity of the nasal bones inclusive. The 
apices of the zygomatic processes of the squamosal bones and the left 
auricular bulla are wanting. The presence of the right bulla in the 
specimen enables comparisons to be made with species in which this part 
is preserved and where the cranium is wanting. The skull has lain in 
the water for a considerable time, as numerous barnacles and oysters 
have attached themselves to it. The matrix has been generally removed 
from it by the action of the water. 

The cranium presents the characters of the genus in the close approxi- 
mation of the temporal fossae on the middle line and the elongation of 
the frontals anterior to this point. Portions of premaxillaries and max- 
illaries remain at positions much posterior to that of the external nares. 
The glenoid surface is separated by a sharp angle from the temporal fossa. 
The sphenoid and presphenoid are keeled on the median line. The vomer 
is visible between the palatines on the middle line below. 

The lateral occipital crests form with a line connecting the exoccipital 
processes across the foramen magnum, an isosceles triangle with straight 
sides, each of which is rather shorter than the base-line mentioned. The 
apex of the supraoccipital is not elevated, and is well produced forwards, 
so that the length of the cranium from the posterior border of the frontal 
bone is one and one-half times as long as the depth of the cranium at the 
same point. 

The tympanic bulla has the general form characteristic of species of 
this genus, but presents specific characters of its own. The part anterior 
to the posterior boundary of the external process is half as long again as 
the length posterior to it. The two measurements are equal in the C hup- 
schii, according to Van Beneden. The two ridges of the internal border 
unite 19 mm. posterior to the anterior extremity, forming a single acute 
angle. This character is not described by authors as occurring in any 
other species of this genus. The anterior extremity is squarely truncate, 
and is semicircular in outline, as the superior side is flat and the inferior 
convex. In C. brialmoatii, according to Van Beneden, the bulla is not 
truncate in front nor is there a single acute edge on the inner side in 
front ; the portions of the bulla anterior and posterior to the internal pro- 
cess are of equal transverse widtli ; in the 0. megalophysum the anterior 
portion is considerably narrower than the posterior portion. In Mesoce- 
tus agramii, according to Van Beneden, there is a single acute internal 
ridge on the bulla, but it is much longer than in the Cetotherium megalo- 
physum and the anterior extremity of the bulla is rounded and not trun- 
cate in the former. The bulla in the species now described presents an 

1895.] 147 [Cope. 

angle posteriorly, as viewed from below, instead of the rounded outline 
seen in several species. 

The form of the skull differs from that of several species where that 
region is known. Thus in the C. burtinii, according to Van Beneden, 
the occipital bone is broadly rounded in outline instead of triangular. In 
C. dubium this region is triangular, but is much more elevated and less 
produced forwards than in the G. megalophysum. It is more elevated 
than the length from the frontal bone posteriorly, instead of being only 
two-thirds as high as long. In the C. morenii, from Chubut, Patagonia, 
Lydekker states that the lateral occipital crests are more elevated than 
the apex of the occipital bone, giving a cordate outline to the posterior 
profile. This does not occur in any known northern species. The tym- 
panic bulla of this species is also quite different. The occipital region of 
the G. hupscMi resembles that of the G. megalophysum more nearly than 
that of any other species as far as knowu. In the G. capellinii Van Ben., 
according to the descriptions and figures of Capellini, the frontal is more 
elongate and narrower on the middle line and the tympanic bulla has not 
the posterior median angle when viewed from below such as exists in the 
C. megalophysum. 

Comparison with the species described by Brandt from Russia and 
Italy, discloses numerous important differences.* The frontoparietal 
region in the G. priscum Br. is materially shorter than in the megalophy- 
sum. The auricular bullis of G. priscum, G. meyerii and G. kliaderii are 
gradually acuminate to an acute apex, when viewed from the inner side, 
and are without the convexity of the lower side and the truncation of the 
apex characteristic of our species. The bulla of the G. rathkei is a little 
more like that of the Chesapeake form, but it is nevertheless specifically 
distinct. It is, when viewed from above, broadly and subequally rounded 
at both extremities, instead of being truncate at the one and angulate at 
the other. The extremities are of subequal width, while the anterioi 
portion is much narrower in the G. megalophysum. 

Finally, the bulla of the G. megalophysum is of relatively larger size 
than in any of the species noticed above. 



Length of fragment below 565 

Width Of fragment 515 

Width of glenoid region from bulla 150 

Length of glenoid region from bulla (least) 100 

Width of sphenoid between foramina lacera 105 

Length of tympanic bulla below 100 

Width of tympanic bulla in front of external process 53 

Width of tympanic bulla behind external process 67 

Width at exoccipital processes .400 

* Memoires Acad. Imp. Sciences, St. Petersburg, 1873, xx, p. 143. 

Cope.] J-4o [April 5, 

Measurements. m. 

Length anterior to parietals above 225 

Length of occipital from base of foramen magnum to apex 

(on curve) 290 

Width of occipital condyles and foramen 140 

The mandible of this species is unknown. The size is not far from that 
of the Cetotherium pusillum and Siphonocetus expansus of Cope. Should 
either of these turn out, on the discovery of the skull, to be Cetotheri- 
form, it will become necessary to compare them with the present species. 
The total length of the animal was about twenty or twenty- five feet. 

Cetotherium crassangulum, sp. nov. 

This species is represented by an imperfect skull, to which adhere three 
cervical vertebrae, the posterior parts of both mandibular rami, parts of 
the hyoid arch and a humerus. The sagittal part of the skull is crushed 
and the frontal bones somewhat displaced outwards. Large portions of 
the nasal bones remain, but the premaxillaries and maxillaries are mostly 
wanting. By excavating at the proper point the right otic bulla was 
brought to light. The presence of this structure, together with a consid- 
erable part of the mandibular rami, enables me to compare the individual 
with known species and to determine its specific reference with certainty. 
The cobssification of all the epiphyses shows that the animal is adult. 

The species belongs to that group in the genus Cetotherium which is 
characterized by the presence of a developed angle of the mandible, 
but where it is short and broadly truncate. The angle is, however, 
scarcely separated from the condyle, and partakes of the articular sur- 
face, apparently much as in the Balmnoptera emarginata of Owen. 
It is further distinguished from such species as G. priscum, G. meyerii and 
G. klinderii by the oval and little-compressed form of the otic bulla, 
resembling in this part rather the G. rathkei. From the G. megalophysum 
the bulla diflFers by the much smaller dimensions as well as the different 
form. Thus while the exoccipital width of the skull of the G. crassan- 
gulum is half as great again as that of the G. megalophysum, the length of 
the bulla is only about three-quarters that of the latter. The bulla of the 
G. cephalus Cope is very diff"erent in form from that of either species. It 
is of the compressed type and is a little smaller than that of the G. crass- 
angulum. It is truncate both anteriorly and posteriorly, which is not the 
case with that of the latter species. 

Although the sagittal crest is crushed away, it is evident that it is much 
less elevated relatively to the width of the skull than in any of the species 
so far known. This elevation, allowing for the injury, was about equal 
to that in the G. megalopJiysum, measured from the floor of the foramen 
magnum. The exoccipital width is one-half greater than that of the 
latter species. The nareal orifice was about as far in advance of the 
supraoccipital angle as in the G. megalopJiysum and much further than in 
any existing whale. The supraorbital portions of the frontal are wanting 

1S95.] l^y [Cope. 

and the nasals are spread apart laterally in the matrix. Their lateral 
portions are produced forwards on each side of the nares for a considerable 
distance, as vertical plates, in a manner which I have not observed in 
any other Balaenid. The proximal extremity of the bone has the vertical 
laminate suture usual in the family. The bulla is oval and, viewed from 
below, the extremities are regularly rounded, the posterior but little 
wider than the anterior. The inferior side is regularly convex in all 
directions and the interior edge is flattened as in various other species of 
Cetotherium. The two lateral internal longitudinal angles come together 
well externally on the anterior end, thus leaving a very short anterior 
keeled edge. The fate of the angles is not visible posteriQrly, as the bulla 
is in place, but they do not seem to come together. 

There is preserved of the right mandibular ramus .595 m. from the 
angle forwards, and a corresponding part of the left ramus, measuring 
.740 m. The condyles and angles of both sides are preserved. The con- 
dyle is compressed, and the articular face presents both upwards and 
backwards. The angle is broadly truncate, its outline a broad parallelo- 
gram, which, when placed vertically, presents its lateral upper angle to 
the condyle, which obliquely truncates the same. The two surfaces are 
separated by a shallow groove for only a part of this contact ; elsewhere 
they are continuous. The presence of a coronoid process cannot be pos- 
itively demonstrated, owing to the position of the rami in the matrix. 
The ramus of the left side displays its characters at the anterior extremity 
of the fragment. The convexity of the external face, as usual, exceeds 
that of the internal, but both are rather flat and meet above at an angle 
which is a little less than a right angle. Foramina are very few in the 
portion of the ramus preserved. There is a very shallow groove on the 
internal side of the superior angle, which is pierced by a single small 
foramen. On the external side a single foramen of still smaller size 
pierces the external wall anterior to the position of the internal foramen 
mentioned, and three times as far below the superior angle. The inferior 
edge of the left ramus is preserved at a position not far posterior to that 
just described of the right ramus. It presents an obtuse angle, indicat- 
ing that a more acute angle exists anterior to its position. Posteriorly the 
right ramus is rounded more broadly below. 

The characters of the ramus diff^er from those of any of the North 
American species so far known. In S. clarkianus and C. polyporum the 
foramina are much more numerous at the corresponding locality. The 
form of the part is different in the ;S', expansus, C. pusillum and C. ceph- 
alus. In O. j)olyporum and C. cephalus the form is moi'e compressed and 
the superior edge more acute ; in the other species named it is less so. 
There is no meckelian groove as in the G. palmatlanticum. 

The three cervical vertebrae diminish in anteroposterior and transverse 
diameters from the first to the third. The diapophyses of the atlas arise 
opposite to the base of the neural canal and are short. The distal end of 
each is depressed. No tuberculum atlantis. The axis is slightly concave 

Cope.] i.b\) [April 5, 

transversely below between the bases of the parapophyses. The latter 
are directed obliquely backwards at an angle of 45° from the articular 
surface and are vertically expanded at the distal extremity. The parapo- 
physes of the third cervical are as long as those of the second, but are 
more slender. 

The humerus is of the size of that of the Cetotherium brialmontii, as 
represented by Van Bencden, and has the moderately elongate form 
characteristic of the species of Cetotherium so far as they are known. 
The tuberosity and crest are broken off, but a portion of the smooth sur- 
face which connects the former with the head remains. The distal end 
is somewhat crushed and the olecranar facet is not as well distinguished 
from the remainder of the ulnar facet as in most specimens. The humerus 
is distinguished by two peculiarities. The crest ceases near the middle of 
the length, and there is a wide and medially deep fossa on the inner side 
of the shaft immediately beyond the line of the distal end of the crest. 
Van Beneden figures a somewhat similar fossa in the Cetotherium hupschii 
Van B., but in that species its position is more proximal and it is bounded 
anteriorly by the distal portion of the crest. The other species of Ceto- 
therium, and those of Balsenoptera figured by Van Beneden, do not 
present this fossa. 

Measurements. m. 

Total length of fragment from line of paroccipital 870 

Axial length from occipital condyles to nasal bones, inclu- 
sive 660 

Length on occipital bone from foramen magnum to apex of 

supraoccipital, inclusive (apex restored) 300 

Width of skull at paroccipital processes 820 

Width of skull at exoccipital processes 620 

Width of condyles and foramen 215 

Width of foramen inagnum 070 

Length of mandibular ramus to posterior foramen 680 

Depth of condyle and angle posteriorly 165 

Depth of posterior face of angle 120 

Width of posterior face of angle. 090 

Vertical diameter of condyle (axial) 078 

Transverse diameter of condyle (axial) 070 

Depth of ramus at last foramen (approximate) 140 

Depth of ramus 130 mm. anterior to condyle 110 

anteroposterior 080 

Diameters of otic bulla \ rot notch 048 

transverse ■{ 
'^ t at process 0a5 

Length of epihyal 120 

( anteroposterior below 060 

Diameters of atlas \ r of centrum 224 

transverse-; .. „„„ 

^ (. do. with diapophyses 328 

Diameters of axis | anteroposterior below 040 

*. transverse in front 1 <2 

1895.] 1*^1 [Cope. 

Measurements. M, 

Length of parapopliysis of second cervical from centrum. . . ..135 

Greatest length of humerus 

Anteroposterior diameter of head 130 

Anteroposterior diameter of shaft at middle 115 

Diameters of distal end | transverse (somewhat crushed). . . .075 
( anteroposterior 170 

For the opportunity of describing this specimen I am indebted to the 
Rev. John T. Goucher, President of the Woman's College of Baltimore, 
who kindly placed the specimen at my disposal. I am also indebted to 
Prof. Arthur Bibbins, of the same institution, who first drew my atten- 
tion to it. The specimen was presented to the Woman's College by Dr. 
Richard Eppes, of City Point, Va., wlio obtained it from the Yorktown 
bed at Tarbay, not far from that place. Dr. Eppes discovered in the year 
1854 the specimen whicli became the type of the S. priscus of Leidy, and 
it is through his hospitality that I have been enabled to visit recently the 
locality, seven miles below City Point on the James river, where the 
skull of the C. crassangulum was found. 


Five species of Balsenidse from the Yorktown bed are known from otic 
bullae. These are Balcena mystketoides Emmons, Mesoteras kerrianus 
Cope, Getotherium cephalus Cope, C. megalophysum Cope, and G. crass- 
angulum Cope. The present species will be the sixtli. It is established 
on a bulla from the Yorktown formation of Maryland, and is in excellent 
preservation, the middle portion of the inferior thin wall being absent. 

It is not necessary to compare this species with any of those of the 
genus Cetotheriura. On comparison with the Baleenopteroe described by 
Van Beneden, it is to be observed that they all difier from the present 
form in the convexity of superior face, where the dense layer or lip has a 
different chord or face from that of the space which separates it from the 
internal longitudinal marginal angle. In the B. sursiplana there is but 
one superior plane from the eustachian orifice to the internal edge, which 
is absolutely flat. In all these species also the dense layer of the lip is 
reflected on the superior edge of the external thin wall at its anterior end. 
In the present species this layer is reflected in a very narrow strip under- 
neath the free border, which overhangs it. In all these species also the 
anterior extremity, as viewed from above or below, is angulate, the angle 
marking tlie end of the inner border of the dense layer or lip. In B. 
sursiplana the anterior extremity, viewed in the same way, is truncate. 
The species which appears to approach nearest is the B. definita Owen, 
which is figured by Lydekker.* This otolite appears to be flatter above 
than the species described by Van Beneden, although the figure is not 
clear in this respect. It has the oblique upwards and backwards looking 
face at the posterior extremity, whicli is a conspicuous feature of the B. 

* Quar. Jowrn. Geolog. Society, 1887, PI. ii, Fig. 3, p. 11. 

Cope.] 1^^ [Aprils, 

sursiplana, although it is not so sharply defined by a strong transverse 
convexity of the superior surface, as in the latter. Nor is there as strong 
a bevel of the anterior extremity of the superior face when viewed from 
within, as in B. definita. An equally conspicuous difference is to be seen 
in the form of the inferior wall. According to Lydekker this surface, 
when the bulla is viewed from within, consists of three planes separated 
by rounded angles, of which the median is longer than those at the ends. 
In the B. sursiplana this surface is regularly convex from end to end. In 
size this species is like that of the large Baloenopterge, including the B. 

Measurements. mm. 

Axial length of bulla 98 

Width at posterior extremity of anterior hook at superior 

border 71 

"Width at anterior extremity of orifice 35 

Width at posterior extremity of orifice 53 

Depth at middle (about) 55 

Greatest depth of lip 38 

Bal^ena affikis Owen, Brit. Foss. Mamm. and Birds, 1846 ; plate opp. 
p. xlvi. Lydekker, Catal. Foss. Mamm. Brit. Mus., v, p. 17, Fig. 7. 
Two otic bulla} agree with the figures and descriptions of this species, 
except in their smaller dimensions. The smallest given by Lydekker is 
120 mm. Tlie larger specimen in the Johns Hopkins collection is 105 
mm., and the smaller is 95 mm. 

All of the material described in this paper, excepting the type specimen 
of the Cetotherium crassangulum, belongs to the Museum of the Johns Hop- 
kins University of Baltimore ; and I wish to express my obligations to 
the authorities of that institution, and especially to Prof. William B. 
Clark, in charge of the Department of Geology, for the opportunity of 
studying it. ^ 

Explanation of Plate. 

Diagrammatic sections of the left mandibular rami of species of Balseni- 
dae, one-half natural size. 

Fig. 1. Ulias moratus Cope. 
Fig. 2. Tretulias buceatus Cope. 
Fig. 3. Siphonocetus prisms Leid3\ 
Fig. 4. Siphonocetus clarkianus Cope. 
Fig. 5. Siphonocetus expansus Cope. 
Fig. 6. Cetotherium pusiUum Cope. 
Fig. 7. Cetotherium polyporum Cope. 

Lettering: E. O., External gingival canal; /. O., Internal gingival 
canal ; O. 0., Gingival groove ; D. C, Dental canal. 

1895.] i.06 [Cope 


Mesocetds siPHUNCXJLtis, sp. nov. 

The geuus Mesocetus was established by Van Beneden * for Mysta- 
coceti in which the posterior part of the mandibular ramus approaches in 
its characters that of the Odontoceti. That is, the condyle is situated at the 
middle of the vertically compressed posterior border, and is more or less 
expanded transversely. It is thus below the superior part of the poste- 
rior extremity of the ramus, instead of constituting that part, as it does in 
the whalebone whales generally. That structure is naturally adapted to 
a more anterior direction of the glenoid cavity, as is shown by Van 
Beneden. The only known species of the genus is the M. agrami Van 
Ben. from the Neocene beds of Agram in Croatia, Austria. It is of 
much interest that a second species is now determined to have existed in 
the Neocene formation of Virginia. 

Van Beneden does not appear to have seen much if any of the mandibu- 
lar ramus anterior to the condyle. I have a ramus nearly entire, and 
smaller parts of three others, and can thus locate the genus Mesocetus 
in relation to those already defined. In the species now to be described, 
the ramus has no large dental canal, but it is almost entirely filled with 
spongy bone of moderate coarseness. The gingival canals unite into a 
single tube which is not larger than one of the external gingival canals, 
and which runs about opposite to them or a little distance below the 
superior edge. In this disposition of the canals Mesocetus diflfers from 
any of the genera of Mystacoceti referred to in the preceding pages. 

Char, specif. — Founded primarily on a nearly complete right mandibular 
ramus, and represented by the anterior part of a second ramus of a 
smaller individual. The distal part of the ramus of a third individual 
resembles the last one, but differs in some respects from it, so that the 
reference cannot now be made. These specimens I saw taken Irom the 
same locality and bed, and I took the type specimen myself piecemeal 
from the deposit. The latter is a wet phosphatic marl, and it was impos- 
sible to remove the specimen without damage. It has been reconstructed 
under my eye by my assistant so as to be in good condition. 

The ramus exhibits little curvature in any direction. It is strongly 
compressed, and although the external face is more convex than the inter- 
nal, the convexity is not great. The superior border is throughout 
thicker transversely than the inferior. Both are obtusely rounded anteri- 
orly, but both become more compressed posteriorly. The inferior border 
becomes rather acute posteriorly. The usual ledge is present on the 
internal or symphyseal side of the distal extremity. The representative 
of the anterior part of the dental canal issues posterior to the distal 
border and a little below the superior border ; the external border of the 

*Memoires cle I' Academic royale des Sciences de Lettres et des Beaux. Arts de Belgiqiie 1882, 
Vol. xlv. 


Cope.] 104 [April 5, 

foramen is notched, and a shallow groove rises from its superior angle 
and returns posteriorly as a shallow groove of the superior middle line. 
This groove disappears in a small median foramen, the first of the series 
of small foramina of the inner side of the superior border. The foramina 
of this series are small and represent the exits of narrow canals which 
run horizontally inwards so close together that a fractured surface pass- 
ing through them resembles a sutural surface with oblique grooves. 
From a median superior position they assume an internal lateral posi- 
tion, and disappear at about the posterior third of the ramus. The inner 
face of the ramus above these foramina becomes slightly concave. Tlie 
large external foramina are rather numerous and are situated at intervals 
of about 45 mm. They are situated posteriorly about as far below the 
superior edge as those of the internal series, and they retain that position 
anteriorly, not rising to a higher position, as is the case with those of 
the internal series. Posteriorly the internal face becomes slightly con- 
cave next the inferior border. The posterior part of the ramus is strongly 
concave on the inner side, and is thin walled. The base of the coronoid 
process indicates that it is flared outwards. 

The condyle is a vertical oval tapering more gradually upwards than 
downwards. The superior border of the ramus is thin and curves strongly 
inwards, quite as Van Beneden has restored the corresponding part in 
the M. agrami. This condyle diilers from that of the M. agrami in 
having a less transverse extent, especially on the inner side, and in lack- 
ing the transverse ridges and grooves described and figured by Van 
Beneden (PI. ii. Fig. 10). This is the only part of the two animals 
which is present in both specimens ; and the comparison indicates that 
the species are diflferent. 

I have probable vertebrae of this species, but I cannot yet associate 
them with certainty. A first dorsal was found in immediate contact with 
the posterior part of the ramus. This resembles considerably the corre- 
sponding vertebra of the M. agrami described by Van Beneden. It has 
lost its epiphyses, but if these were added, its anteroposterior diameter 
would be less than that of the latter, and there is not nearly so conspicu- 
ous a facet for the head of the first rib. This is very indistinct in my 
vertebra. A perfect humerus was also found near the position from which 
the second and third rami were dug out. Until I know the proper 
relation of this humerus I will only describe it so far as to say that it 
has the proportions of that of Cetolherium, but that the tuberosity is not 
produced beyond the head, and the olecranar facet is not distinguished 
by an angle from the remainder of the ulnar facet. 

1895.] 155 

Measurements. mm. 

Total length (subject to some correctioii on account of 

a fracture) 1290 

I vertical 97 

Diameters at mental foramen < . 

transverse 28 

Diameters at 500 mm. from distal end 

f vertical 90 

\ transverse 48 

r vertical 120 

Diameters of condyle | t^^nsverse 61 

{vertical 57 

transverse 85 

anteroposterior . 31 

Expanse of diapophyses 170 

From the Miocene marl of the Pamunkey river, Virginia. 

Stated Meeting, March 1, 1896. 

Treasurer, Mr. Price, in the Chair. 

Present, 15 members. 

Dr. Richard A. Cleemann, a lately-elected member, was 
presented to the Chair. 

Correspondence was submitted as follows: 

Letters accepting membership from Dr. Richard A. Clee- 
mann, Philadelphia ; Mr. Richard S. Hunter, Philadelphia. 

Letters of acknowledgment (148, 146) were received from 
the Franklin Institute, Engineers' Club, Wagner Free Institute 
of Science, Free Library of Philadelphia, Historical Society of 
Pennsylvania, College of Physicians, Numismatic and Anti- 
quarian Society, Mercantile Library, Library Company of 
Philadelphia, Hon. James T. Mitchell, Hon. Henry Reed, 
Profs. John Ashhurst, Jr., F. X. Dercum, Henry D. Gregory, 
H. V. Hilprecht, J. P. Lesley, J. A. Ryder, Drs. John H. 
Brinton, W. W. Keen, F. W. Lewis, Morris Longstreth, Charles 
A. Oliver, C. N. Peirce, James W. Robins, W. S. W. Rusch- 
enberger, Henry Clay Trumbull, Messrs. R. L. Ashhurst, 
Henry C. Baird, Cadwalader Biddle, Lorin Blodget, Charles 

J-'^O [March 1. 

Bullock, S. Castner, Jr., C. H, Clark, Samuel Dickson, Patter- 
son DaBois, Philip C. Garrett, George Harding, William W. 
Jefleris, Benj. Smith Lyman, Franklin Piatt, Frederick Prime, 
Theo. D. Eand, Julius F. Sachse, W. P. Tatham, Louis 
Vossion, Joseph M. Wilson, Ellis Yarnall, Philadelphia ; Mr. 
Philip P. Sharpies, West Chester, Pa. 

A letter from Lorin Blodget, dated February 23, 1895, was 
read, in reference to a large collection of reports on Applied 
Electric Force, which he had obtained. 

Accessions to the Library were reported from the K. Nor- 
diske Oldskrift-Selskab, Copenhagen, Denmark; Acad^mie 
E. de Belgique, Bruxelles; Ecole des Mines, Secr^teriat de 
S. A. S. le Prince Albert 1"" de Monaco, Paris, France ; U. S. 
Geological Survey, U. S. Department of Agriculture, Wash- 
ington, D. C; Artillery School, Fort Monroe, Va. 

Photographs for the Society's album were received from 
Prof. James M. Hart, Ithaca, N. Y.; Mr. Robert N. Toppan, 
Cambridge, Mass. 

A paper by Dr. F. Boas on " Salishan Texts " was pre- 
sented by Dr. Brinton, who gave a brief synopsis of it. 

Mr. F. Prime made some remarks on the relation of gold 
and silver, showing the output of those metals through a 
series of years, and the relative values of the two at different 
periods of recent history. 

An extended discussion took place on Mr. Prime's commu- 
nication, partaken in by Dr. Morris, Dr. Greene, Dr. Horn, Prof. 
Snyder, Mr. Rand and others. Opinions were expressed on 
the bearing of the facts stated, on the merits of a bimetallic 
standard of currency, etc. 

Dr. Greene spoke of the new element akin to nitrogen, 
which has lately been discovered, called Argon. 

The death of Gen. William F. Raynolds, U. S. A., Detroit, 
Mich., was announced. 

And the Society was adjourned by the presiding member. 

1895.] 15* 

Stated Meeting^ March 15, 1805. 
Treasurer, Mr. Price, in the Chair. 

Mr. Charlemagne Tower, Jr., a newlj-elected member, was 
presented to the Chair, and took his seat. 

Correspondence was submitted as follows : 

Acknowledgments of election to membership were received 

Dr. Herman Snellen, Jr., Utrecht, JN'etherlands. 

Prof. William W. Goodwin, Cambridge, Mass. 

Prof. Alpheus Hyatt, Cambridge, Mass. 

Mr. Charles C. Harrison, Philadelphia. 

Mr. Charlemagne Tower, Jr., Philadelphia. 

Letters of acknowledgment were received from the Royal 
Society of Victoria, Melbourne (142, 144) ; Royal Society of 
New South Wales, Sydney (142, 144); Societas pro Fauna 
Flora Fennica, Helsingfors, Finland (146) : Physico-Mathe- 
matical Society, Kasan, Russia (144, 145); K. K. Geologische 
Reichsanstalt, Vienna, Austria (145) ; Verein f. Erdkunde, 
Dresden, Saxony (145); Verein der Freunde der Natur- 
geschichte, Mecklenburg, Germany (142, 144, 145) ; R. Istituto 
Lombardo di Scienze e Lettere, Milan, Italy (144) ; Sir Henry 
W. Acland, Oxford, Eng. (145); Mr. F. Prime, Philadelphia 
(145) ; University of Wisconsin, Madison (136-141) ; Museo 
Nacional, Buenos Aires, Argentine Republic (142, 144) ; 
Society Scientifique du Chili, Santiago (145). 

Letters of acknowledgment (143 and 146) were received 
from the Nova Scotian Institute of Natural Science, Halifax ; 
Mr. Horatio Hale, Clinton, Ontaria ; Geological Survey, 
Ottawa, Canada ; Laval University, Hon. J. M. Le Moine, 
Quebec, Canada ; Canadian Institute, Toronto ; Bowdoin Col- 
lege Library, Brunswick, Me.; Society of Natural History, 
Maine Historical Society, Portland, Me.; Prof. C. E. Hitch- 
cock, Hanover, N. H.; Vermont Historical Society, Mont- 
pelier ; Amherst College Library, Amherst, Mass. ; AtheucBum, 
Boston Society of Natural History, Massachusetts Institute of 

-• ^" [March 15, 

Technology, Massachusetts Historical Society, American 
Academy of Arts and Sciences, State Library of Massachusetts, 
Mr. Stephen P. Sharpies, Boston, Mass. ; Museum of Compara- 
tive Zoology, Profs. George Lincoln Goodale, J. D. Whitney, 
Dr. Justin Winsor, Mr. Robert N. Toppan, Cambridge, Mass. ; 
Free Public Library, New Bedford, Mass. ; Essex Institute, 
Salem, Mass.; Prof. BUhu Thomson, Swampscott, Mass.; 
American Antiquarian Society, Worcester, Mass. ; Providence 
Franklin Society, R. I. Historical Society, Brown University, 
Dr. A. S. Packard, Providence, R. I. ; Mr. George F. Dun- 
ning, Farmington, Conn. ; Connecticut Historical Society, 
Hartford ; Connecticut Agricultural Experiment Station, Yale 
University, Profs. O. C. Marsh, H. A. Newton, New Haven, 
Conn. ; New York State Library, Prof. James Hall, Albany, 
N. Y. ; Buffalo Library. Society of Natural Sciences, Buffalo, 
N. Y.; Prof. Edward North, Clinton, N. Y. ; Profs. T. F. 
Crane, J. M. Hart, W. T. Hewett, Ithaca, N. Y. ; American 
Institute of Electrical Engineers, Columbia College; American 
Museum of Natural History, New York Academy of Medicine, 
Historical Society, New York Hospital, Academy of Science, 
Brevet Brigadier-General H. L. Abbot, Captain R. S. Hayes, 
Profs. Joel A. Allen, Isaac H. Hall, J. J. Stevenson, Dr. Daniel 
Draper, New York, N. Y, ; Geological Society of America, 
Rochester, N. Y. ; Prof. W. Le Conte Stevens, Troy, 
N. Y. ; Oneida Historical Society, Utica, N. Y. ; United States 
Military Academy, West Point, N. Y. ; Free Public Library, 
Jersey City, N. J. ; Prof. Robert W. Rogers, Madison, N. J. ; 
Profs. C. F. Brackett, A. B. Fine, W. Henry Green, Princeton, 
N. J. ; Dr. Charles B. Dudley, Altoona, Pa. ; Dr. Robert H. 
Alison, Ardmore, Pa. ; Dr. Charles F. Himes, Carlisle, Pa. ; 
Prof M. H. Boy^, Coopersburg, Pa, ; Hon. Eckley B. Ooxe, 
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Green, Prof. J. W. Moore, Rev, Thomas Conrad Porter, 
Easton, Pa. ; State Library of Pennsylvania, Hon. Robert E. 
Pattison, Mr. Andrew S. McCreath, Harrisburg, Pa, ; Haver- 
ford College, Profs. Lyman B. Hall, Allen C. Thomas, Haver- 
ford, Pa. ; Mr. John Fulton, Johnstown, Pa. ; Academy of 



Natural Sciences, Hon. Henry Reed, Profs. Andrew A, Blair, 
James MacAlister, William Pepper, Samuel P. Sadtler, Albert 
n. Smyth, Dr. D, G. Brinton, Messrs. R. Meade Bache, Richard 
S, Hunter, E. V. d'Invilliers, Samuel Wagner, Mrs. Helen 
Abbott Michael, Philadelphia ; Mr. Heber S, Thompson, 
Pottsville, Pa.; Rev. F. A. Mahlenberg, Reading, Pa.; Dr. 
W. H. Appleton, Swarthmore, Pa. ; Dr. John Curwen, War- 
ren, Pa.; Philosophical Society, Hon. William Butler, West 
Chester, Pa.; Wyoming Historical and Geological Society, 
Wilkesbarre, Pa. ; Agricultural Experiment Station Newark, 

Accessions to the Library were reported from the Govern- 
ment Observatory, Madras, India ; R. Geographical Society, 
St. Petersburg, Russia ; Etat Indepi^ndant du Congo, Bruxelles, 
Belgique; K. K. ZoologiSch-botanisch Gesellschaft, Vienna, 
Austria ; R. Accademia d. Scienze, Turin, Italy ; R. Academia 
de Ciencias y Artes, Barcelona, Spain ; Society of Antiquaries, 
R. Meterological Society, London, Eng. ; R. Geological Society 
of Cornwall, Penzance, Eng.; Theological Seminary, Andover, 
Mass, ; Essex Institute, Salem, Mass.; Prof. O. C. Marsh, New 
Haven, Conn. ; Oneida Historical Society, Utica, N. Y. ; 
American Academy of Medicine, Easton, Pa. ; Free Public 
Library, Jersey City, N. J. ; Mercantile Library, Academy of 
Natural Sciences, College of Physicians, University of Penn- 
sylvania, Indians' Rights Association, Mr. Henry Carey Baird, 
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Enoch Pratt Free Library, Editor of the Journal of Philology^ 
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Los Angeles ; Mercantile Library Association, St. Louis, Mo. ; 
Society of Natural History, Cincinnati, O, ; Mr. William R. 
Head, Chicago, 111. ; State University of Iowa, State Historical 
Society, Iowa City, la. ; University of Wisconsin, Madison ; 
Prof. J. L. Campbell, Crawfordsville, Ind.; University of 
Kansas, Lawrence ; Colorado Scientific Society, Denver ; Ob- 
servatoire Meteorologique Central, Observatorio Astronomico 
Nacional de Tacubaya, Direccion General de Estadistica, 
Mexico, Mexico ; Sociedad Cientifica Argentina, Buenos 


[April 5, 

Aires; Agricultural Experiment Stations, Amherst, Mass., 
College Park, Md., Experiment, Ga., Fort Collins, Colo., Lin- 
coln, Neb., Corvallis, Oregon, Lawrence, Wyo. 

The following deaths were announced : 

M. Victor Duruj, Paris, France. 

Sig. Giovanni Battista Rossi, Rome, Italy. 

A portrait of the late Dr. John Le Conte was presented on 
behalf of the donor, Mrs. Le Conte, by Dr. Horn, who referred 
to the services to science rendered by Dr. Le Conte. Dr. J. C. 
Morris followed with a tribute to the memory of Dr. Le 
Conte's personal and official career, and moved a vote of 
thanks to Mrs. Le Conte for the gift of the portrait. Carried. 

Mr. Benjamin Smith Lyman read a paper entitled " Folds 
and Faults in Pennsylvania Anthracite Beds." 

On account of the large number of engravings required by 
the paper, on motion of Dr. Brinton it was referred to a spe- 
cial committee of three, to be appointed by the Chair. 

The following paper was read by title by Prof. E. D. Cope : 
" The Structure and Origin of the Zygomatic Arch in the 
Mammalia^" by Daniel Slade, Mus. Comp. Zoology. 

Dr. Cope presented a paper, for the Proceedings, illustrated 
by a number of specimens, on some "Extinct Cetacea." 

Pending nominations 1306, 1307, 1308, 1309 were read. 

And the Society was adjourned by the presiding member. 

Stated Meeting^ April 6, 1895. 
President, Mr. Fraley, in the Chair. 

Mr. Henry C. Mercer, a newly-elected member, was pre- 
sented to the Chair and took his seat. 

Correspondence was submitted as follows : 

Acknowledgments of election to membership were received 
from : 

R. T. Glazebrook, F.R.S., Cambridge, Eng. 

C. A. M. Fennell, Litt.D., Cambridge, Eng. 

1895.] 1^1 

Prince Roland Bonaparte, Paris, France. 

E. A. Wallis Budge, Litt.D., London, Eng. 

Sir George Grove, C.B , London, Eng. 

William Huggins, D.C.L., London, Eng, 

Rev. James Legge, LL.D., Oxford, Eng. 

Rev. Isaac Taylor, LL.D., York, Eng. 

Prof. W. Wundt, Leipzig, Germany. 

Dr. Ernst Curtius, Berlin, Prussia. 

Mr. Joseph "Wilcox, Philadelphia. 

Mr. Henry C. Mercer, Doylestown, Pa. 

Prof. Gabriel de Mortellet, St. Germain-en-Laye, France. 

Letters of envoy were received from the Government As- 
tronomer, Madras, India; K. K. Astronomisch-nieteorolog- 
ische Observatorium, Triest, Austria ; Universite Royale, 
Lund, Sweden ; Bureau des Longitudes, Paris, France ; R. 
Academia de Ciencias y Artes, Barcelona, Spain ; Meteoro- 
logical Office, British Association for the Advancement of 
Science, London, Eng,; Royal Irish Academy, Dublin ; Oneida 
Historical Society, Utica, N. Y.; Direccion General de Esta- 
distica de la Republica Mexicana, Mexico. 

Letters of acknowledgment were received from the Insti- 
tut Egyptien, Cairo (142, 144r, 145) ; R. Zoological Society, 
Amsterdam, Netherlands (145) ; Royal Library, The Hague, 
Holland (145); Colonial Museum, Musee Teyler, Harlem, Hol- 
land (145); Friesch Genootschap van GeschiedOudheid en 
Taalkunde, Lee warden, Holland (145) ; Academic R. des Sci- 
ences, des Lettres, etc., Bruxelles, Belgique (144, 145) ; Prof. 
Peter R. v. Tunner, Leoben, Styria (144) ; Naturforschende 
Gesellschaft, Bamberg, Bavaria ( 145 ) ; Naturhistorische 
Gesellschaft, Hannover, Prussia (142, 144, 145); Prof. Carl 
Vogt, Geneva, Switzerland (145) ; Accademia R. delle Scienze, 
Torino, Italia (144) ; Philosophical Society, Cambridge, Eng. 
(145); Public Library, Boston, Mass. (143, 146); Profs. Wil- 
liam W. Goodwin, Alpheus Hyatt, C. R. Lanman, Cambridge, 
Mass. (143) ; Rev. Edward E. Hale, Roxbury, Mass. (146) ; 
Marine Biological Laboratory, Woods Holl, Mass. (143, 146) ; 
R. I. Agricultural Experiment Station, Kingston (143, 146) ; 



[April 5, 

Prof, Levi W. Russell, Providence, R.I. (1-^3) ; American Jour- 
nal of Science (143), Prof. H. A. Newton, New Haven, Conn. 
(142, 144, 145); Prof. B. G. Wilder, Ithaca, N. Y. (143, 146) ; 
N. Y. Academy of Medicine (141, 145), Editor of the Popu- 
lar Science Monthly (14:$), Hon. Charles P. Daly (143,146), 
Prof. Henry F. Osborn, New York, N.Y. (143) ; Oneida His- 
torical Society, General Charles W. Darling, Utica, N.Y. (143) ; 
Profs. William Libbey, Jr. (143), C. A. Young, Princeton, N. J. 
(143, 146); Dr. E. D. Warfield, Easton, Pa. (143); Mr. S. M. 
Sener, Lancaster, Pa. (143) ; Profs. Henry F. Bitner, H. Jus- 
tin Roddy, Millersville, Pa. (143); Profs. Andrew A.Blair 
(142, 144, 145), J. Solis Cohen (143), Drs. Persifor Frazer 
(146), John Marshall (146), D. K. Tuttle (143), Charles Stewart 
Wurts, (143, 146), Messrs. Arthur Biddle (143), Arthur E. 
Brown (143, 146), Robert Patterson Field (143, 146), Joseph 
C. Fraley (143), William A. Ingham (143, 146), Thomas Mee- 
han (143), Robert Patterson (143), L. A. Scott (143, 146), 
Joseph Wilcox Philadelphia (143-146) ; Patent Office Library 
Washington, D. C. (143); Captain William N. Casey, U.S A., 
Norfolk, Va. (143) ; Academy of Science, St. Louis, Mo. (146) ; 
College of Agriculture and Mechanic Arts, Mesilla Park, 
N. M. (143); Museo Nacional (144), Soci^te Scientifique du 
Chili, Santiago de Chile (142). _ 

Letters of acknowledgment (143 and 146) were received 
from the Smithsonian Institution (6 cases, 446 packages), 
Anthropological Society, Bureau of Ethnology, Library Sur- 
geon-General's Office, U. S, Naval Observatory, U. S. Coast 
and Geodetic Survey, U. S. Geological Survey, U. S. Depart- 
ment of Agriculture, Rt. Rev. John J. Keane, Profs. S. F. 
Emmons, C. V. Riley, Charles A. Schott, Dr. W. J. Hoffman, 
Mr. Lester F. Ward, Washington, D.C.; Mr. Jedediah Hotch- 
kiss, Staunton, Va.; University of Virginia, Va.; Prof. J. W. 
Mallet, University of Virginia, Va.; Hon. Lyon G. Tyler, Wil- 
liamsburg, Va.; West Virginia University, Morgantown ; 
Agricultural Experiment Station, Raleigh, N.C.; Georgia His- 
torical Society, Savannah ; Agricultural Experiment Station, 
Knoxville, Tenn.; Experiment Station Library, Auburn, Ala.; 

1895.] l^d 

University of Alabama, Uoiversitj P.O.; University of Cali- 
fornia, Berkeley; Lick Observatory, Mt. Hamilton, Gal.; 
California Academy of Sciences, San Francisco ; Texas 
Academy of Science, Austin ; State Agricultural College, 
Michigan ; Geological Survey of Missouri, JefiTerson City ; 
Prof. E. W. Claypole, Akron, O.; Editors of the Journal of 
Comparative Neurology, Granville, O.; Society of Natural His- 
tory, Cincinnati Observatory, Hon. J. D. Cox, Cincinnati, O.; 
Oberlin College, Oberlin, O.; Athenaeum Library, Columbia, 
Tenn ; Academy of Sciences, St. Louis, Mo.; Prof. J. L. Camp- 
bell, Crawfordsville, Ind.; Indiana Engineers' Society, Rem- 
ington ; Field Columbian Museum, Newberry Library, Chi- 
cago, 111.; Iowa Experiment Station, Ames ; Iowa Masonic 
Library, Cedar Rapids ; Academy of Natural Sciences, Daven- 
port, la.; State Historical Society, Iowa City, Ta.; American 
Archeeological and Asiatic Association, Nevada, la.; State 
Historical Society of Wisconsin, Academy of Sciences, 
Arts and Letters, Madison, Wis.; Agricultural Experiment 
Station, Manhattan, • Kans.; Kansas Academy of Science, To- 
peka ; Agricultural Experiment Station, Corvallis, Oregon ; 
Colorado Scientific Society, Denver ; Agricultural Experiment 
Station, Fort Collins, Col. ; Nebraska State Historical Society, 
Lincoln; Academy of Science, Tacoma, Wash, ; University of 
Wyoming, Laramie ; Dakota Agricultural College, Brookings. 
Accessions to the Library were reported from the Natur- 
forscher-Verein, Riga, Russia ; K. D. Geografiske Selskab, Co- 
penhagen ; Universite Royale, Lund, Sweden ; Socidte Royale 
de Geographic, Antwerp, Belgium ; Hungarian Nat. Mu- 
seum, Budapest; Academic des Sciences, Cracow, Austria; 
Osservatorio Astronomico-Meteorologico, Trieste, Austria ; 
K. K. Naturhistorische Hofmuseum, Vienna, Austria ; Akade- 
raie der Wissenschaften, Verein zur Beforderung des Garten- 
baues, Berlin, Prussia ; K. Sachsische Gesellschaft der Wissen- 
schaften, Leipzig ; Naturhistorische Verein der Preussischen 
Rheinlande, etc., Bonn, Prussia ; Wiirttembergische Kommis- 
sion fiir Landesgeschichte, Stuttgart; Prof. M. E. Renevier, 
Lausanne, Switzerland ; R. Academia de Ciencias, R. Acade- 


[April 5, 

mia de la Historia, Madrid, Spain ; Musdara d'Histoire Natu- 
relle, Paris, France ; Mr. James L. Bowes, Liverpool, Eng.; 
British Association for the Advancement of Science, London, 
Eng.; Geographical Society, Manchester, Eng.; R. I. Historical 
Society, Providence ; Academy of Sciences, Historical So- 
ciety, New York, N.Y.; Rev, Joseph H. Dulles, Princeton, N. J.; 
Messrs. Henry Phillips, Jr., Julius F. Sachse, Philadelphia ; 
Light House Board, Smithsonian Institution, Mr. F. W. 
Hodge, Washington, D. C; Editors of the Journal of Com- 
parative Neurology^ Granville, 0.; j^gricultural Experiment 
Stations, Durham, N. H., Lexington, Ky., Ames, la.; Socie- 
dad Central de Profesores del Estado, Puebla, Mex.; Observa- 
torio Meteorologico Central, Xalapa, Mex.; Institute of Jamaica, 
Kingston ; Direccion General de Estadistica, Guatemala, C, A. 
A photograph for the Society's Album was received from 
Prof. Peter R, v. Tunner, Leoben, Austria. 
The following deaths were announced : 
Prof. Henry Coppde, Bethlehem, Pa. Born October 13, 
1821; died March 21, 1895. 

Hon. Richard Yaux, Philadelphia. Born December 19, 
1816 ; died March 22, 1895. 

Dr. W. S. W. Ruschenberger, Philadelphia. Born Septem- 
ber 4, 1807 ; died March 24, 1895. 

Prof. John A. Ryder, Philadelphia. Born 1852 ; died 
March 26, 1895. 

Prof. James E. Oliver, Ithaca, N. Y. Born July 27, 1829 ; 
died March 27, 1895. 

Dr. Brinton moved that the President, at his leisure, ap- 
point members to prepare suitable obituary notices of the 

Prof. Cope, by consent, paid a tribute to the scientific stand- 
ing of the late Prof. Ryder, and the exceptional value of his 
investigation into ontogeny. 

The President appointed Prof. Cope to prepare the obituary 
notice of the late Prof. Ryder. Prof. Cope accepted the ap- 

1895.] 165 

Prof. Cope read his paper on " Crania of Fossil Whalebone 
Whales," as announced. 

Mr, Du Bois read a paper on the " Priority of the Manu- 
facture of Extremely Thin Gold Leaf by Electrical Processes." 

Kemarks, corroborative of the tenor of the paper, were made 
by Mr, Joseph Fraley, 

The Committee upon Mr, Lyman's Paper reported and was 

Pending nominations 1306, 1307, 1308, 1309, and new nomi- 
nations 1310, 1311, 1312, were read. 

And the Society was adjourned by the President, 

Stated Meeting, April 19, 1S95. 
President, Mr, Fraley, in the Chair. 

Mr, Eichard S, Hunter, a newly elected member, was pre- 
sented to the Chair, and took his seat. 

Correspondence was submitted as follows : 

A circular letter from the Geographical Society of Toulouse, 
France, requesting that the Society examine into the method 
of applying the Decimal System parallel and simultaneously 
to the measurement of angles and time. 

A letter was read from Philip P. Calvert, Secretary of the 
Kyder Memorial Meeting, requesting the Society to appoint a 
representative to the Committee of Publication of that meet- 

On motion, the President was requested to make the ap- 

Prof, Cope was subsequently appointed. 

Letters were read from Mr. Dalton Dorr, Superinteudent of 
the Pennsylvania Museum of Industrial Art, and Mr. F. D, 
Langenheira, Curator of the Numismatic and Antiquarian 
Society, requesting the Society to take the receipt of the 
former institution for the Society's coins and medals deposited 


[April 19, 

therein, and return the receipt held by the latter institution. 
A list of the coins and medals belonging to the Society accom- 
panied the letters. 

Dr. Brinton moved that the letters of Messrs. Dorr and 
Langenheira, together with the list of coins and medals, be 
referred to the Curators, with instructions to take a receipt for 
them from the Pennsylvania Museum of Industrial Art as a 
deposit in that institution. 

After some discussion the motion was carried. 

Letters of envoy were received from the Academic des 
Sciences, Cracow, Austria ; Naturforschende Gesellschaft des 
Osterlandes, Altenburg i. S. A., Germany ; K. Sachsische 
Gesellschaft der Wissenschaften, Leipzig ; Socidt^ de Geog- 
raphic, Berne, Switzerland ; Bath and West and Southern 
Counties Society, Bath, England ; Meteorological Council, 
London, England ; Iowa Geological Survey, Des Moines. 

Letters of acknowledgment were received from Dr. Otto 
Donner, Helsingfors, Finland (145) ; Russia Tashkent Obser 
vatory (144, 145) ; Maatschappij der Nederlandsche Letter 
kunde, Leiden, Z. Holland (145) ; Socidte R. de Geographic 
Antwerp, Belgium (145); Naturforschende Gesellschaft 
Schweiz. Naturforschende Gesellschaft, Berne, Switzerland 
(145); Anthropologische Gesellschaft, Vienna, Austria (145) 
Anthropologische Gesellschaft, Berlin, Prussia (145) ; Natur 
historische Verein, Bonn, Prussia (112, 144, 145) ; K. Sachs 
A Iterthumsverein, Dresden (142, 144) ; Naturhistorische Mu 
seum, Hamburg, Germany {Trans., xvii, 3); K. Sachs. Ge 
sellschaft der Wissenschaften, Leipzig (142, 144, 145); Natur 
wissenschaftliche Verein, Osnabriiok, Germany (144, 145) 
Literary and Philosophical Society, Liverpool, England (145) 
Prof. W. W. Goodwin, Cambridge, Mass. (144, 145, 146) 
American Mathematical Society (143), Mr. James Douglas 
New York, N. Y. (143, 146); Vassar Brothers' Institute 
Poughkeepsie, N. Y. (143, 146); Academy of Science 
Rochester, N. Y., (143, 146); Dr. H. Hartshorne, German 
town. Pa. (143) ; Mr. Joseph Wilcox, Philadelphia (143-146) 
Prof. John F. Carll, Pleasantville, Pa. (143, 146); U. S. Naval 

1895.] lt)7 

Institute, Annapolis, Md. (U3, 146); Mr, T. L. Patterson, 
Cumberland, Md. (143, 146); Maryland Institute, Enoch Pratt 
Free Library, Peabody Institute, Prof. J. E. Humphrey, Bal- 
timore, Md. (143,146); Smithsonian Institution, U. S, Na- 
tional Museum (143, 146), Dr. John S. Billings, Washington, 

D. C. (146) ; Agricultural Experiment Station, Morgantown, 
W. Va. (143); Ohio State Archaeological and Historical 
Society, Columbus (143-146) ; State Geological Department, 
Frankfort, Ky. (143, 146); Agricultural Experiment Station, 
Knoxville, Tenn. (140, 144, 145); Prof. Joseph Le Conte, 
Berkeley, Cal. (143, 146) ; Historical Society of Southern 
California, Los Angeles (143, 146) ; California Historical 
Society (143, 145, 146), California State Mining Bureau (143), 
Prof. George Davidson, San Francisco, Cal. (143, 146); Prof. 
J. C. Branner, Stanford University, Cal. (143, 146) ; Univer- 
sity of Wisconsin, Madison (136-141, 143-146); Prof. G. W. 
Hough, Evanston, 111. (143) ; Kansas State Historical Society, 
Topeka (143, 146); Experiment Station Library, Lincoln, 
Neb. (143, 146) ; North Dakota Agricultural College, Fargo 
(143, 146); Bishop Cr, Carrillo, Merida, Yucatan (143, 146) ; 
Dr. Antonio Penafiel, Mexico, Mex. (143, 146) ; Observatorio 
Astronomico Nacional Mexicano, Tacubaya (143, 146). 

Accessions to the Library were reported from the Society 
Entomologique de Belgique, Bruxelles ; Naturforschende Ge- 
sellschaft des Osterlandes, Altenburg i. S. A., Germany ; Ge- 
sellschaft fiir Anthropologic, Ethnologic, etc., Berlin, Prussia ; 
K. Gesellschaft der Wissenschaften, Gottingen, Prussia ; K. 
Sachsische Gesellschaft der Wissenschaften, Leipzig; Society 

E. di Napoli, Napoli, Italia ; Bath and West and Southern 
Counties Society, Bath, England ; Meteorological Council, 
London, England ; Natural History and Philosophical Society, 
Belfast, Ireland ; Public Library, Salem, Mass. ; Agricultural 
Experiment Station, New Haven, Conn. ; University of the 
State of New York, Albany ; Enoch Pratt Free Library, 
Baltimore, Md. ; U. S. Coast and Geodetic Survey, Light- 
house Board, Washington, D. C. ; Denison University, Gran- 
ville, O. ; Cincinnati Observatory, Cincinnati, 0. ; Iowa Geo- 


[May 3, 

logical Survey, Des Moines ; Kansas State Agricultural Col- 
lege, Manhattan; Observatorio-Magnetico Central, Mexico, 

The death of Prof. James D. Dana, New Haven, Conn, 
(born Feb. 12, 1813, died April U, 1895), was announced. 

The President announced that he had requested Mr. C. 
Stuart Patterson, Prof. E. D. Cope, Dr. D. G. Brinton and Mr. 
J. G. Kosengarten to prepare the obituary notices of Mr. 
Vaux, Prof. Eyder, Dr. Ruschenberger and Prof. Coppde 
respectively, and that they had accepted the appointments. 

An obituary notice of the late Mr. Thomas H, Dudley by 
Mr. W. John Potts was submitted and read by title. 

Dr. D. G. Brinton read a paper on " The Protohistoric Eth- 
nography of Asia Minor." The paper was discussed by Prof. 
H. V. Hilprecht and others. 

Pending nominations Nos. 1306, 1307, 1308, 1309, 1310, 
1311, 1312, and new nominations Nos. 1313, 1314, 1315, 1316 
were read. 

The nominations for non-resident members, recommended 
by Council and not acted on, were placed in nomination. 

A report was read from the Special Committee in reference 
to the plates attached to Mr. Lyman's paper. As the report 
was not definitive, on motion the Committee was continued 
and requested to prepare a final report at the next meeting. 
On further motion, as Mr. Henry Phillips, Jr., a member of 
the Committee, was ill, Mr. J. Sergeant Price was appointed 
to act in his place. 

And the Society was adjourned by the President. 

Stated Meeting, May 3, 1895. 
President, Mr. Fraley, in the Chair. 

Correspondence was submitted as follows : 

Letters from Sarah J. Farmer, Eliot, Me., and Mr. James 
Lindsay, Kilmarnock, Scotland, the latter accompanying a 
book presented by him to the Society. 



Letters of envoy were received from the Geological Survey 
of India, Calcutta ; Musee Teyler, Haarlem, Holland ; K. 
Geologische Landesanstalt und Bergakademie, Berlin, Prussia ; 
K. Sachsische Gesellschaft der Wissenschaften, Leipzig ; Mete- 
orological Observatory, New York, N. Y.; Historical Society 
of Southern California, Los Angeles. 

Letters of acknowledgment were received from the Socie- 
tatea Geografica Romana, Bucharest (141) ; Universitets-Bib- 
liotheket, Christiana, Norway (145); Prof. Japetus Steenstrup, 
Copenhagen, Denmark (145) ; Naturwissenschaftliche Verein, 
Frankfurt a. O. (145) ; K. Gesellschaft der Wissenschaften, 
Gottingen, Prussia {Trans. ^ xiii, 3); Prof. G, Maspero, Paris, 
France (145) ; South African Philosophical Society, Cape 
Town (136-141) ; Hon. E. J. Phelps, New Haven, Conn. (119, 
143) ; N. J. Historical Society, Newark (143, 146) ; Mr. Henry 
C. Mercer, Doylestown, Pa. (144, 145, 146); Mr. Jacob B. 
Eckfeldt, (143, 146), Dr. Charles Schaffer, Philadelphia (143, 
144, 146); Maryland Historical Society, Baltimore (143). 

Accessions to the Library were reported from the Natur- 
wissenschaftliche Yerein des Reg. Bez., Frankfurt a. O. ; 
Musee Teyler, Haarlem, Holland ; Friesch Genootschap van 
Geschied, Oudheid, en Taalkunde, Leeuwarden, Netherlands ; 
R. Museum vanOudheden, Leiden, Holland ; I. R. Accademia 
degli Agiati, Rovereto, Austria ; Yerein der Freunde der 
Naturgeschichte in Mecklenburg, Giistrow ; Socidte Yaudoise 
des Sciences Naturelles, Lausanne, Switzerland ; Naturwissen- 
schaftliche Gesellschaft, St. Gall, Switzerland ; M. J. de Rey- 
Pailhade, Toulouse, France ; Philosophical Society, Cam- 
bridge, Eng. ; Mr. James Lindsay, Kilmarnock, Scotland; 
R. Society of Antiquaries of Ireland, Dublin ; American Anti- 
quarian Society, Worcester, Mass. ; Connecticut Historical 
Society, Hartford; Lenox Library, New York, N. Y.; Uni- 
versity of Michigan, Ann Arbor; Agricultural Experiment 
Stations, Durham, N. H., Burlington, Yt., Jacksonville, Fla., 
Tucson, Ariz. ; Observatorio Meteorologico Central, Mexico. 

Dr. William H. Greene presented to the Society a Breguet 
metallic thermometer, made by Dr. Franklin Bache, from 
whom it was purchased by Dr. B. Howard Rand, whose widow 


1 ' ^ [May 3, 

presented it to the donor. This form is no longer made, ex- 
cept as an apparatus for physical demonstration. It was the 
precursor of the modern metallic thermometer now rapidly 
coming into use. 

An obituary notice of the late James E. Rhoads, M.D., 
LL.D., was read by Dr. Henry Hartshorne. 

The President announced the death of Hamilton Andrews 
Hill, Boston, Mass., April 27, 1895, get. 67. 

Prof. Cope read his paper on "Some New Forms of Whale- 
bone Whales," as announced. 

Mr. Julius F. Sachse made a preliminary communication on 
" The Application of Electricity to Photography," 

Pending nominations 1306-1316 and new nominations 
1317-1329 were read. 

The following report of the Special Committee on Mr. 
Lyman's paper was presented : 

To THE American Philosophical Society : 

The Special Committee to whom was referred the paper by Mr, Benja- 
min S. Lyman read at a late meeting of the Society, for the purpose of 
considering the subject of publishing the plates accompanying the said 
paper, respectfully report that they have carefully considered the matter 
referred to them and hav3 reached the following conclusions upon the 
subject : 

1. The plates consist of thirty-four maps taken bodily from the book of 
plans published by the Geological Survey of Pennsylvania, all of which 
have been copyrighted under the Laws of the United States and therefore 
under no circumstances can be published without the written consent of 
the Board of Survey, witnessed by two or more witnesses, which consent 
does not accompany the papers. 

2. There is a standing rule of the Society from which it has not deviated, 
tbat all its publications must be of original matter, and any papers, drawings 
or maps, which have been previously printed or published, cannot appear 
in its Proceedings or Transactions. This is an insuperable objection, and 
however much we personally desire to accommodate Mr. Lyman, it is 
impossible for us, even if the expense should be borne by him, to report 
in favor of printing or publishing the maps, although he is fully entitled, 
to have his paper printed in the Proceedings as an original contribution 
read at one of the stated meetings. We therefore submit the following 
resolutions for adoption by the Society : 

"Resolved, Thatthepaper presented by Mr. Benjamin S Lyman be pub- 
lished in our Proceedings, but that for the reasons set forth in the report 

1895.] I'l 

of the Committee, the thirty-four maps accompanying his paper be not 

included in the publication." 

"Resolved, That the Special Committee be discharged from the further 

consideration of the matter." 

William H. Greene, 
J. Sergeant Price, 
Albert H. Smyth. 

Prof. Greene made a statement in reference to the paper of 
Mr. Lyman, expressing his inability to speak of its special 
value as a geological contribution. 

Mr. Lyman stated that he had received a verbal permission 
to print the copyrighted maps. 

Prof. Cope spoke in favor of publishing the maps accom- 
panying Mr. Lyman's paper. 

Mr. J. Sergeant Price explained the reason for referring the 
question of publication to a Committee. 

Prof. Cope moved that the Special Committee be dis- 
charged, and that a Committee of Experts be appointed to 
consider the publication of the plates and the paper. Car- 

The President subsequently appointed Messrs. Heilprin, 
Ingham and Piatt. 

And the Society was adjourned by the President. 

JAN 20 1896 






Vol. XXXIV. July, 1895. No. 148. 


[Circular Issued by Committee.] 

Philadelphia, 104 South Fifth St., May 1, 1893. 

The American Philosophical Society held at Philadelphia for 
the promotion of useful knowledge has the honor to announce 
that an award of the Henry M. Phillips Prize will be made during 
the year 1895 ; essays for the same to be in the possession of the 
Society before the first day of January, 1895. The subjects 
upon which essays ai-e to be furnished by competitors are as 
follows : 

1. The sources, formation, and development, of what is gene- 
rally designated the Common Law of England. 

2. The theory of the State, treated historically, and upon 
principle, with a discussion of the various schools of classical, 
mediaeval, and modern thought, upon the subject. 

3. The historical and doctrinal relations of the Koman Law and 
the English Law, illustrated by parallels and contrasts. 

The Prize for the crowned essay on either of these subjects 

will consist of the sum of five hundred dollars lawful gold coin 

of the United States, to be paid upon the awarding of the prize. 

The Society invites attention to the laws governing said prize, 

which accompany this circular. 

EiCHARD Vaux, Cliairman ; \ 

Henry Phillips, Jr., ) 

William V. McKean, / Committee on the 

FURMAN ShEPPARD, l „ „ du.iiv, 

Joseph C. Fraley, / Henry M. Phillips 

— and — \ Prize Essay Fund 

Frederick Fraley, President of the Society, \ et„ ^^^.v, ) 

J. Sergeant Price, Treasurer of the Society, J J^-^-ojficiis.j 

The essays must be sent, addressed to Frederick Fraley, President of the 
American Philosophical Society, Hall of the Society, No. lOlt South Fifth Street, 
Philadelphia, Pa, 



Extract from the Laws. 

The Henry M. Phillips Prize Essay Fund. 

Miss Emily Phillips, of Philadelphia, a sister of Hon. Henry 
M. Phillips, deceased, presented to the American Philosophical 
Society held at Philadelphia for Promoting Useful Knowledge, 
the sum of five thousand dollars for the establishment and 
endowment of a Prize Fund, in memory of her deceased brother, 
who was an honored member of the Society. The Society 
accepted the gift and agreed to make suitable rules and regula- 
tions to carry out the wishes of the donor, and to discharge the 
duties confided to it. In furtherance whereof, the following 
rules and regulations were adopted by the Society : 

First. The Prize Endowment Fund shall be called the 
" Henry M. Phillips Prize Essay Fund." 

Second. The money constituting the Endowment Fund, viz., 
five thousand dollars, shall be invested by the Society in such 
securities as may be recognized by the laws of Pennsylvania, as 
proper for the investment of trust funds, and the evidences of 
such investment shall be made in the name of the Society as 
Trustee of the Henry M. Phillips Prize Essay Fund. 

Third. The income arising from such investment shall be 
appropriated as follows : 

(a) To making public advertisement of the prize and the sum 
or amount in United States gold coin, and the terms on which 
it shall be awarded. 

(b) To 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, and to 
the preparation of the certificate to be granted to the author of 
any successful essay. 

Fourth. Competitors for the prize shall aflSx to their essays 
some motto or name (not the proper name of the author, how- 
ever), and when the essay is forwarded to the Society, it shall 
be accompanied by a sealed envelope containing within the 
proper name of the autlior, and, on the outside thereof, the 
motto or name adopted for the essay. 


Fifth. At a stated meeting of the Society, in pnrsuance of 
the advertisement, all essays received up to that time shall be 
referred to a Committee of Judges, to consist of five persons, 
who shall be selected b}^ the Society from nomination of ten 
persons made by the Standing Committee on the Henry M. 
Phillips Prize Essay Fund. 

Sixth. All essays may be written in English, French, German, 
Dutch, Italian, Spanish or Latin ; but, if in any language except 
English, must be accompanied by an English translation of the 

Seventh. No treatise or essay shall be entitled to compete for 
the prize that has been already published or printed, or for which 
the author has received already any prize, or profit, or honor, of 
any nature whatsoever. 

Eighth. All essays must be clearly and legihly written and on 
one side of the paper only. 

Ninth. The literary property of such essays shall be in their 
authors, subject to the right of the Society to publish the 
crowned essays in its Ti-ansactions or Proceedings. 

Tenth. A Standing Committee, to consist of five members 
appointed by the President, and, ex-officio, the President and 
the Treasurer of the Society, shall continue in office during the 
pleasure of the Society, and any vacancies that may occur 
in said Committee shall be filed by new appointment by the 

Eleventh. The said Committee shall have charge of all matters 
connected with the management of this endowment and the 
investment of the same, and shall make such general rules for 
publishing the terms upon which said prize shall be competed 
for, and the amount of the said prize, and if it shall deem it 
expedient, designate the subjects for competing essays. It shall 
report annually to the Society, on the first Friday in December, 
all its transactions, with an account of the investment of the 
Prize Fund, and of the income and expenditures thereof. 

The following-named gentlemen were selected by the Society 
as a Committee of Judges : J. Randolph Tucker, of Virginia ; 
James C. Carter, of New York ; George F. Edmunds, of Ver- 
mont ; E. J. Phelps, of New Haven, Conn.; C. Stuart Patter, 
son , of Philadelphia, Pa. 


The Report and Award 




Henry M. Phillips Prize Essays. 

To the HON. FREDERICK FRALEY, President of the 
American Philosophical Society: 

Sir : — We, the undersigned, having been, together with the 
Hon. J. Randolph Tucker, of Virginia, selected by the American 
Philosophical Society as a Committee of Judges to whom were 
referred the several essays sent to the Society in competition 
for the Henry M. Phillips Prize, under the terms of the circular 
issued by the Society on the first day of Maj'^, 1893, have the 
honor to report : 

That in the performance of the duty imposed upon us, we met 
at the hall of the Society on Monday, 8th April, 1895, and on 
Tuesday, 9th April, 1895, and that we there read and considered 
the several essays submitted to us and hereinafter referred to. 

Greatly to our regret the Hon. J. Randolph Tucker was 
unavoidably prevented from meeting us and affording to us the 
benefit of his accurate knowledge and sound judgment. 

Upon the first of the subjects designated by the Society'' in its 
circular of 1st May, 1893, to wit : " The sources, formation and 
development of what is generally designated ' The Common Law 
of England,' " three essays were submitted for our consideration, 
entitled and designated as follows : 

No. 1. "The sources, formation and development of what is 
generally designated ' The Common Law of p]ngland.' " By 
" Vikiuir." 


Iso. 2. " The sources, formation and development of what is 
generally designated ' The Common Law of England.' " By 
" Vox Populi." 

No. 3. " The sources, formation and development of the Com- 
mon Law." By " Imogene." 

Under the second of the subjects designated in the Society's 
circular of 1st May, 1893, to wit : " The theory of the State, 
treated historically and upon principle, with a discussion of the 
various schools of classical, mediaeval, and modern thought upon 
the subject," five essays were referred to us, entitled and desig- 
nated as follows : 

No. 1. " The Theory of the State." By "Ayala." 

No. 2. " The Nature of the State." By " Cegra." 

No. 3. " The Theory of the State." By "Amicus Plato, 
Amicus Socrates, Sed Magis Arnica Veritas." 

No. 4. '• The Theory of the State." By " Civis XXV." 

No. 5. " The Theory of the State, treated historically and upon 
principle, with a discussion of the various schools of classical, 
mediaeval, and modern thought upon the subject." By "A 

Upon the third of the subjects designated in the Society's 
circular of 1st Ma3% 1893, to wit : " The historical and doctrinal 
relations of the Roman Law and the English Law, illustrated by 
parallels and contrasts," no essays were submitted to us. 

As a preliminary to the determination of the relative merits 
of the several essays, we concluded that our duty to the Society 
forbade us to set the seal of its approval upon any essay which 
should fall short of a very high standard of excellence. 

We are unanimously of opinion and we report that no one of 
the essays referred to us in competition for the first subject 
designated by the Society, to wit : " The sources, formation, and 
development of what is generally designated ' The Common 
Law of England '" is of sufficient mei'it to justify the award of 
a prize to it. We, therefore, recommend that the three essays 
submitted in competition upon this subject be returned to their 
respective authors. 

We have carefully considered and compared the five essays 
referred to us in competition for the prize to be awarded for the 
best essay upon the second subject stated in the circular of the 


Society, to wit : " The Theory of the State, treated historically 
and upon principle, with a discussion of the various schools of 
classical, mediieval, and modern thought upon the subject." 

Understanding the words " real merit,'' as used in the third 
regulation (b) of the Societ}^ to be taken in the sense of high 
excellence, as a work of scholarship, considered chiefly with 
reference to its logical character and literar^^ execution, while 
not wholly ignoring its soundness of theory, we are unanimously' 
of opinion that, having regard to the evidence which it presents 
of historical research, to its accuracy of thought, and to its 
originalit}^ of treatment, the essay entitled " The Theory of the 
State," by "Amicus Plato, Amicus Socrates, Sed Magis Arnica 
Veritas," is entitled to the highest consideration, and is worthy 
of the great honor of being crowned by the Society-. 

We are also unanimously of opinion that the essaj' entitled 
" The Nature of the State," by " Cegra," is worthy of high com- 
mendation, and that honorable mention may justl}' be made of it. 

While we heartily concur in awarding the prize and in making 
honorable mention of the essays, to which we have referred, we 
are not to be understood as expressing, either on behalf of the 
Societ}" or upon our own behalf, an}' assent to the historical 
deductions, or conclusions, or any approval of the theories of 
government or of politics, stated in either of the commended 

We deem our duty to be fully performed when we report to 
the Society the essays deemed to be worthy of crowning or of 
honorable mention, with the designation of those essaj's by that 
motto or name which the respective authors have affixed thereto, 
and we do not regard it to be within the scope of the authority 
committed to us to open the sealed envelopes containing the 
names of those wliose essa3's we deem to be worthy of honor. 
Signed this Hth day of May, 1895. 

James C. Carter, 
George F. Edmunds, 
E. J. Phelps, 
C. Stuart Patterson. 

The report of the judges having been presented to President 
Fraley, the envelopes containing the names of the successful 


competitors were opened by Mr. Fralej' and J. Sergeant Price, 
Esq., and it was found that the winner of the prize is George H. 
Smith, Esq., of Los Angeles, California, and that the essay of 
which Honorable Mention is made was written by Westel W. 
WiLLOUGHBY, of Leland Stanford University, Palo Alto, Cali- 

Approved by the Society, 

Frederick Fraley, President. 

J. Sergeant Price, Treasurer. 

The Theory of the State. 









Committee of Judges: 




E. J. PHELPS, New Haven, Conn. 

C. STUART PATTERSON, Philadelphia, Pa. 


In submitting to the A.merican Ptiilosophical Society the following essay 
upon the Theory of the State, I desire to say a word in explanation of 
the unusual number of quotations used, and the consequent voluminous- 
ness of the notes. This course was suggested to me by the example of 
Roscher in his Political Economy, and has been adopted as apparently the 
best method of considering the theory of the State, at once historically 
and upon principle, as required by the offer of the Society. For in this 
way only has it been practicable for the author to develop his own theory 
briefly and consecutively, and at the same time to review other theories. 

I also desire to say a word in apology for, or rather in vindication of, the 
somewhat free and plain-spoken criticisms of the theories of others that 
I have found it necessary to make. In this I have followed the example of 
the older writers on the theory of the State from Aristotle down ; whose 
custom (to use a familiar phrase) has always been to handle the theories 
of other writers without gloves, and by whom similar treatment has never 
been regarded as a just subject of complaint. I admit, however, that 
the practice is, at the present day, open to some objections. For, as will 
be seen, the theories of modern publicists are of a delicate and somewhat 
artificial structure, little suited to stand the rough handling of logic, and, 
in fact, existing mainly by mutual comity. This is especially true in 
England, and in this country, where jurists and publicists have, for over 
half a century, been absolutely dominated by Austin's false and per- 
nicious theory, and where, consequently, that theory must necessarily be 
attacked in order to gain even a hearing. 

And especially I desire that these criticisms may not be regarded as evi- 
dence of any malice or ill-feeling on my part. On the contrary, the two 
authors that I criticise most severely, Hobbes and Austin, I have ever 
regarded with the most profound admiration ; and their works, though 
false in conclusions, yet seem to me, on account of their logical method, 
and the profound and accurate analytical power displayed in them, 
beyond comparison, the most valuable contributions made to political 
science in modern times ; and I freely confess that from them I have 
learned more than from all other writers, Aristotle excepted. 

I may say, therefore, in the language of the old adage (which I adopt as 
the motto of my work): "Amicus Plato, amicus Socrates, sed magis 
arnica Veritas." 




§ 1 Tlie Theory of the State Defined, and Its Scope Determined. . 189 

§ 2 Of Certain Current Political Theories 189 

§ 3 The Doctrine of Sovereignty 191 

(1) Of Personal Sovereignty 191 

(2) Of Corporate Sovereignty 191 

(3) Of the Sovereignty of the State 193 

(4) Of the Sovereignty of Law or Bight 193 

(5) Of the Variations of the Above Doctrine 193 

§ 4 Observations Upon the Doctrine of Sovereignty 194 

§ 5 Of Hobbes' Argument 194 

§ 6 Of Kant's Argument 197 

g 7 Of Huxley's Argument 198 

(1) Donisthorpe's Theory 199 

(2) Tiedeman's Theory 199 

(3) Observations on These Theories 200 

§ 8 Of Austin's Argument, and of His Theory Generally 202 

(1) Observations Upon His General Theory 202 

(2) Of His Doctrine of Rights, or of Justice 203 

(3) Of His Doctrine of Sovereignty 204 

g 9 Of Bodin's Argument 207 

§ 10 Historical Refutation of the Doctrine of Sovereignty 208 

§ 11 Historical Genesis of the Doctrine of Sovereignty 211 

Chapter I. 
Of the Nature of the State. 

12 Of the Definition of the State ; and herein 222 

(1) Of Definition in General 222 

(2) Of Current Definitions of the State 224 

(3) Definition of the State ; and Its Several Kinds. . 225 
§ 13 Of the Federal States ; and herein Particularly of the United 

States of America 229 

§ 14 Of the Historical Origin of the State 232 

§ 15 Of the Causal Origin, or Raison d' Etre of the State 232 

§ 16 Of the Distinction Between the State and the Government 233 

§ 17 Of the Causal Origin, or Raison d' Mre of Government 233 

§ 18 Of the So-called Organic Nature of the State 235 



Chapter II. 
Of the Functions of the State Generally. 


§ 19 Of the Relation Between the Functions, and the Rights of the 

State. 244 

§ 20 Of the Essential Functions of the State 245 

§ 21 Of the Non-Essenlial Functions of the State 246 

§22 Of the Doctrine o{ Laissez Faire, or Administrative Nihilism. . 246 

1 23 Of the Utilitarian Doctrine 250 

§ 24 Of the Juristic Doctrine 250 

§ 25 Of the Organic Theory of the State 251 

§ 26 Illustrations of this Theory 253 

Chapter III. 

Of the Several Functions of the State. 

§27 Of the Function of Organization, and that of Administration. . 263 
§28 Of the Sovereign and Subordinate Functions of the Govern- 
ment 263 

§ 29 Of the Received Classification of the Sovereign Functions of 

Government 263 

§ 30 Of the So-called Executive Function 263 

§ 31 Of the So-called Legislative Function ; and herein of Judicial 

Legislation, or, Legislative Jurisdiction 264 

§ 32 Another Division of the Functions of Government 266 

§ 33 Of the Twofold Division of the Functions of Government 266 

§ 34 Theoretical and Historical Argument in Support of this Division 266 

I 35 Of the Judicial Function 267 

§ 36 Of the Administrative Function ; and herein 270 

(1) Of the Legislative Function 270 

(2) Of the Governmental Function 270 

§ 37 Of the Function of Political Organization 271 

Chapter IV 
Of the Nature and Method of Jurisprudence. 

§ 38 Public Right a Branch or Department of Jurisprudence, or the 

Science of Right 275 

§ 39 Division of Jurisprudence, or Right 275 

§ 40 Right or Jurisprudence Part of the Science of Morality 276 

§ 41 Morality Distinguished from the Philosophy of jNIorality 276 

§ 42 Of the Moral Standard , ... 278 

§ 43 Of the Tlieoretical or Rational Standard ; and herein 279 

( 1) Of the Principle of Necessity 279 

(2) Of the Principle of Utility 279 



§ 45 Of the Method and General Principles of Jurisprudence 281 

§ 46 Of Certain Principles of Right, and herein 283 

(1) Of Jural Equality 283 

(2) Of Restitution and Compensation 284 

(3) Of Observance of Custom 284 

(4) Of Contracts or Promises 285 

(5) Of Legislative Acts or Statutes 285 

(6) Of the Philosophic, or Rational, and the Historical 

Methods 286 

Chapter V. 

The Subject of Jurisprudence Continued; and Herein of the Doctrine 
of Natural Right. 

§ 47 Of Prevailing Misconceptions as to the Nature of Right 289 

§ 48 Statement of the Doctrine of Natural Right 290 

§ 49 Of the Relation Between Natural or Theoretic, and Positive 

Right , 292 

(1) Theoretical Exposition 292 

(2) Historical Verification 292 

§ 50 Historical View of the Doctrine of Natural Right 297 

(1) Aristotle 297 

(2) The Roman Jurists 299 

(3) Leibnitz 299 

(4) The Jurists of Modern Continental Europe 299 

(5) The Common Law Jurists 299 

(6) Comparison of the Civil Law, and the Common 

Law Jurists 300 

Chapter VI. 
Of the Rights or Just Powers of the State. 

§ 51 Of the State as a Body Politic or Corporation 305 

§ 52 Of the Distinction Between the Internal and the External 

Rights of the State, and herein 306 

Of International Law or Right 307 

§ 53 Of the So-called Private International Law 307 

§54 Of the Distinction Between the Political and the Non-Political 

Rights of the State, and herein, first 308 

Of the Non-Political or Social Rights of the State 309 

§ 55 Of the Political Rights of the State 309 

§ 56 Of the Limit to the Political Rights of the State 309 


Chapter VII. 
Of the Principles of Political Organization. 


g 57 Aristotle's Classification of Government 314 

§ 58 Of Constitutional and Absolute Governments 315 

§59 Of the So-called Ideocracy 316 

§ 60 Of the So called Mixed State 317 

§ 61 Of the Essential Nature of Constitutional Government 319 

§ 63 Of the Principles that Should Govern the Distribution of the 

Sovereign Powers 321 

(1) Of the Local Distribution of Powers Between the 

Federal and Constituent States 322 

(2) Of the Distribution of Powers Between the Gov- 

ernment and the Constituent Electorate 324 

(3) Of the Distribution of Powers in the Government 325 

(4) Of the Judicial Power 325 

(5) Of the Distinction Between Ordinary and Legisla- 

tive Jurisdiction 325 

(6) Of the Twofold Division of Powers into Judicial 

and Administrative 326 

(7) Of the Received Division of Powers into Execu- 

tive, Legislative and Judicial 326 

(8) Of the Legislative Power 326 

(9) Of the Governmental Power 327 



§ 1. The Theory of the State Defined and its Scope Determined. 

The theory of the State, in the proper aad most comprehensive sense of 
the term, would seem to involve the consideration of all matters affecting 
the political and social life of man, and, to speak accurately, should, there- 
fore, be regarded as coextensive with the whole of political science. It 
will, however, be more convenient in the present state of philosophy, to 
regard it as confined to the consideration of certain political problems, 
that are broadly distinguished from the rest of political science by their 
fundamental character, and by the fact that they stand, as it were, at the 
threshold of the subject and imperatively demand solution as a condition 
even of entrance into it. 

These are to determine, (1) the nature of the State, (2) its functions, 
(3) its rights, or rightful powers, and (4) the principles that should gov- 
ern its political organization. 

In addition to these subjects — which the German publicists include 
under the head of Public Riglit (Staatsrecht, Jus Ftihlicum), regarding it 
as a department of Jurisprudence or Natural Right — they include in the 
theory of the State another subject, which they call PoUtilc (politique). 
This term is the equivalent of the English word Politics : but, as with us, 
the term is used, after Aristotle, to denote the whole of political science, 
it will be better to translate the German word by the term Policy. The 
nature of this si;bject, and its relation to the theory of the State, will be 
understood by reference to the passages cited in the note (a) *. 

In the following exposition of the theory of the State, it will be found 
most convenient, in general, to consider the historical aspect of the subject 
in connection with the several topics as they arise, or, in the sequel, after 
the exposition of the theory has been completed. But, in exception 
to this general course, it will be found convenient and even necessary to 
consider in advance, by way of introduction, certain theories, now gen- 
erally prevailing, by which our investigations may otherwise be embar- 

§ 2. 0/" Certain Carrent Political Theories. 

There are certain traits common to modern political writers — and from 
which hardly any are exempt — that have profoundly, and, I think, dele- 
teriously, influenced political theory. These are Has, or prejudice, and 
illogicalness, or disregard of logic — two infirmities very closely united. 
For — as observed by logicians — if the mind be wholly unbiased, it spon- 
taneously observes the true method of reasoning. But where bias or 
prejudice intervenes, there is no fallacy so absurd that it may not entrap 

* All notes indicated by letters will be found at the end of Introduction. Those occur- 
riDg in a Chapter at the end of the Chapter. 



the acutest intellect. For prejudice — as expressed in the popular prov- 
erb : "The wisli is father to the thought" — is the native and congenial 
soil of logical fallacy ; against which, in the absence of this powerful and 
malignant influence, nature itself, without special training, is in general 
a sufficient protection. Of the truth of this observation, the writings 
even of the most distinguished political theorists — such, for instance, as 
Hobbes, Kant, Austin, not to speak of lesser men — furnish, as will be 
seen, numerous and striking illustrations. So that in place of the trivial 
and often ridiculous examples used by logical writers to illustrate the dif- 
ferent kinds of fallacies — and which, perhaps, have greatly contributed 
to bring logic into the contempt and consequent disuse into which it has 
fallen in modern times (b) — there might be readily collected from the most 
distinguished sources, examples of all of them, that have proved their 
efficiency by deceiving, not only the less intelligent reading public, but 
also the great philosophers that invented them. 

Hence, it has resulted that the political theories current in modern 
times are in general mere expressions of popular sentiment prevailing at 
the time of their inception, modified more or less by tlie idiosyncrasies of 
their respective authors, and by subsequent changes of popular opinion ; 
and the origin or original genesis of any given theory is, tlierefore, gen- 
erally to be sought, not in the formal reasoning adduced in its support, 
but in the events and character of the period in which it originated and 
in the character, mental and moral, or as it may be called, the personal 
equation of its author. Hence, also, it will be found, that the reasoning 
of political writers is, in general, merely polemical, or, in other words, 
designed, not to direct the author's investigations, or to test the correct- 
ness of his conclusions, but to establish some preconceived opinion, con- 
sciously or unconsciously, imposed upon him by his environment, or by 
authority. For, in modern times, on nearly every great political question, 
men take sides and range themselves, or are ranged by fortune, into par- 
ties, and henceforth devote themselves, not to investigating, but to estab- 
lishing the dogmas to which they have become fortuitously attached. 
Hence, it may be said, without much exaggeration, that, with regard to 
political and social problems, men generally have ceased to be reasoning, 
and become mere arguing creatures ; and that there is hardly a writer on 
the theorj^ of the State, since Aristotle, that has approached the subject 
in the true scientific spirit, without bias, and with entire indiflereuce as to 
the conclusions to which his investigations might lead him. (r) 

From this infirmity, almost universal, of political writers tliere have 
resulted certain political theories, which, though wholly unverified, have 
come to be almost universally received, and are so intrenched in the sen- 
timents and prejudices of the people, or classes of the people, as almost 
to preclude the possibility of a fair and unbiased consideration of the 
subject, of politics. 

This opinion will doubtless be "caviare to the general ;" and for most 
readers it will be hard even to conceive the possibility of its being true. 


But the most incredulous may be readily convinced of the justice of the 
opinion, if he will follow us in a critical examination of some of the 
theories referred to and of the arguments adduced in their support. 

Among these the most conspicuous is the doctrine of sovereignty as gen- 
erally received in modern times, and to this we will first devote our atten- 
tion. This doctrine will be found to rest for its plausibility upon certain 
-purely logical fallacies ; and it will, therefore, require no special knowl- 
edge of political science to investigate its claims to credibility. On this 
account, and because it stands in the way of an intelligent investigation 
of our subject, the Introduction presents the most appropriate place for its 

§ 3. The Doctrine of Absolute Sovereignty, (d) 

The doctrine of absolute sovereignty so universally asserted and appa- 
rently believed, would seem to consist of a single proposition, and the 
several forms in which it is asserted, to be merely unessential variations 
of the same doctrine. But this is far from being the case ; for the term 
sovereign, on which the meaning of the term sovereignty depends, has sev- 
eral essentially distinct meanings, and to each of these there corresponds 
a distinct and independent theory, (e) 

Hence, the so-called doctrine of sovereignty consists in reality of sev- 
eral theories that must be distinguished from each other, and which, it 
will be found, are not only essentially diflFerentbut mutually inconsistent. 

(1) Originally the term sovereign denoted merely a monarch or single 
ruler ; and the corresponding doctrine of sovereignty simply asserted the 
absolute or unlimited power of the monarch, or, as more usually ex- 
pressed, the Divine Right of Kings. In this, the original and proper 
sense of the term, sovereignty — being the power of a single man — is ex vi 
termini, indivisible. But that it is absolute is a proposition asserted only 
by extreme royalists, who may now be regarded as practically extinct. 

(2) But afterwards, with the progress of constitutional government in 
Europe, the term sovereign came to denote not merely a monarch but the 
government or political organization of the State, whether consisting in 
an assembly or of several departments ; and the doctrine of sovereignty 
thus assumed the form of asserting the unlimited power of the govern- 
ment in its corporate capacity. But obviously the term sovereign is here 
used in a secondary and improper sense, essentially distinct from its 
original signification ; for the government thus regarded is a body politic 
or corporation, which is rightly defined as a fictitious or imaginary per- 
son ; and the power of this fictitious sovereign is equally fictitious or 
imaginary. For human power can exist only in actual human beings ; 
and though for convenience we may speak of the power of the govern- 
ment, as of that of any other eorporation, yet the expression is always to 
be understood as really denoting the concurrent powers of certain indi- 
viduals in the government. Thus, taking for illustration the case of a 
simple sovereign assembly, and regarding this as the sovereign, when we 


speak of its power, we mean nothing more than the united powers of a 
concurring majority. And hence, instead of regarding as sovereign the 
fictitious entity that we are accustomed to regard as such, we miglit with 
greater propriety say that the actual sovereign is the majority that acts, 
and that, with every change in the constitution of such majority, we have 
a different sovereign. (/) 

Hence, it is easy to perceive that the doctrine of corporate sovereignty — 
wliich is the form in wliich the doctrine of sovereignty is now most usually 
asserted — is inconsistent with the original doctrine. For the latter assumes 
the existence of a single supreme ruler or sovereign, whose power is cer- 
tainly indivisible, and may be absolute ; but the latter rests upon the 
assumption that there are several officers or rulers, in each of whom 
political poAver is vested, and, hence, that the sovereign powers of the 
government are not only divisible, but actually divided ; and conse- 
quently that the power of each is limited by the condition that others 
shall concur in its exercise. Accordingly all the great constitutional 
struggles that have occurred in history have been in effect contests 
between the doctrine of personal, and that of corporate sovereignty, and 
the triumph of the latter is justly regarded as having finally overthrown 
the former. 

(8) But latterly the doctrine of corporate sovereignty has been asserted 
in another form that bids fair in this country and in others inclining to 
republicanism to supplant the doctrine as originally expressed. This, 
which may be called the doctrine of the sovereignty of the State or of the 
people, results from the distinction, now generally recognized, between 
the State and the government, and asserts that the sovereignty is vested, 
not in the latter, but in the former. 

But this doctrine must be clearly distinguished from another that passes 
by the same name. In all liberal governments either all, or a large pro- 
portion of the adult male citizens participate in electing representatives. 
And in this country the electors are also vested by law with the power of 
changing the constitution of the government, either by constitutional 
conventions or otherwise. Hence, when we speak of the sovereignty of 
the people, refei'ence is generally made to the electors only and not to the 
people generally, or the State as distinguished from the government or 
political organization of the State. But obviously the electors are part of 
the political organization or government, and hence, the doctrine of sov- 
ereignty of the people, in this sense, does not differ essentially from the 
doctrine of corporate sovereignty, as stated in the preceding paragraph. 

Hence, to avoid this ambiguity, the expression, "the sovereignty of the 
people," should be disused, and instead of it we should speak only of the 
"sovereignty of the State," by which is meant the sovereignty of the 
whole people, or the State as distinguished from the political organization 
of the State or government. 

Of tlie two forms of the doctrine of sovereignty last adverted to — namely, 
the doctrine of corporate sovereignty and that of the sovereignty of the 


State — it will be observed that each is at once more liberal and less definite 
than its predecessor, and that the last is altogether without significance, 
except in so far as it repudiates the notion of unlimited political power 
either in a single ruler or in the government ; and thus, while preserving 
the name, it in fact altogether denies the doctrine of absolute sovereignly. 
It would, therefore, be altogether unobjectionable, were it not that 
indefinite theories that to wise men mean nothing, to the multitude mean 
anything that passion and prejudice maj^ suggest ; and hence, that such 
theories constitute the most fruitful cause of political heresies and revo- 

(4) Finally, under the influence of the more enlightened spirit, and 
the more profound realization of the principle of liberty and of human 
rights that characterizes our modern civilization, the term sovereign has 
received a still wider extension of meaning, and is now often used to 
denote mere abstractions, as when we speak of the sovereignty of Reason, 
or of Justice, or Right, or of Public Opinion. Accordingly the doctrine 
of sovereignty has undergone a still further and more satisfactory evolu- 
tion into the doctrine of the sovereignty or supremacy of the law or of 
right. But obviously this use of the term is purely metaphorical, and merely 
expresses the notion that justice or right is at once the paramount stand- 
ard of the rectitude of human conduct and the source of all rights, public 
and private. This is in effect the doctrine expounded in this work, and 
to render the expression of it entirely unobjectionable, it is only necessary 
that the name as well as the substance of the doctrine of sovereignty be 
abandoned, (g) 

(5) It is also to be observed that in each of the above expressions of the 
doctrine of sovereignty — with the exception of the last, which cannot be 
regarded as such — there is another ambiguous term which has been the 
source of much confused political thinking and serious political error. 
This is the term '"power," which is habitually used to denote, not merely 
actual power or might, but also rightful power, or power that the gov- 
ernment or individual ought to have, or, in other words, right. Hence, 
accordingly as we use the term power, each of the propositions stated is 
susceptible of two constructions ; and thus, under the apparently single 
proposition that the sovereign power is unlimited, we have included six 
essentially different doctrines, that to avoid confusion ought to be, but 
which in general are not, distinguished by political writers. 

And to add to this confusion, there is in the brief proposition referred 
to also another ambiguous term, namely, the term "unlimited" — a term 
altogether without meaning, until we determine the nature of the limit 
referred to, which may be either mere force, or law in the sense of lex, or 
law in the sense of ^''/s, or theoretical right. And thus each of the six 
propositions into which, as we have seen, the doctrine resolves itself, may 
branch out into several others. 


§4. General Observations Upon the Doctrine of Sovereignty. 

Of the several forms of the doctriae of sovereignty above enumerated 
— namely, the doctrine of Personal sovereignty, of Corporate sovereignty, 
of the sovereignty of the State, and of the sovereignty of Right, or of the 
Law — the first — now happily obsolete — is the only one that has any defi- 
nite significance ; for in this form of the doctrine, the sovereign referred 
to is an actual person ; whose power is necessarily indivisible and may be 
despotic. But in the second form of the doctrine — namely, that of cor- 
porate sovereignty — the sovereign referred to is a body politic or corpora- 
tion, a purely fictitious person, whose supposed power is equally fictitious. 
Tliat the fictitious and imaginary power of this fictitious and imaginary 
sovereign is unlimited and indivisible is a proposition witliout significance 
and is to be regarded as a mere verbal trick or contrivance to conceal the 
actual fact that, in all governments of more than one, the supreme pol- 
itical powers are in all cases divided among several officers or departments, 
and that the power of each officer or department is necessarily limited 
by those of the others ; and hence, that in all such governments the pro- 
position that the sovereign power is necessarily unlimited and indivisible, 
is, in fact, untrue. The doctrine of corporate sovereignty must, there- 
fore, be regarded as in effect a denial of the true form of the theory ; 
which is that of personal sovereignty. A fortiori are these observations 
true of the doctrine of the sovereignty of the State — where the sovereign 
is conceived to be the unorganized mass of the people, of all ages, 
sexes and degrees of mental capacity, without political power, or capacity 
of exercising it — and also of the doctrine of the sovereignty of Right or 
Law ; where the imagined sovereign is a mere abstraction. 

These obvious considerations are sufficient of themselves to dispose of the 
doctrine of absolute sovereignty, which — except in its now happily obso- 
lete form as asserting the divine right of kings — is altogether destitute of 
definite signification, or, in other words, using the term in its original sense, 
is merely nonsense, (h) This is strikingly illustrated by the arguments that 
have been adduced in its support; which, for the purpose of further illus- 
trating our thesis, we will next consider, commencing with the celebrated 
argument of Hobbes. 

g 5. Robbes' Argument. 

Hobbes clearly perceives the nature of the fundamental problem of 
political science ; which is to determine, not the actual, but the rightful 
power of the government or, in other words, the power with which the 
government ought to be vested. As stated by him, the question to be con- 
sidered is : "What are the 'rights' and 'just power' or 'authority' of a 
sovereign?"* And accordingly his conclusion — which is that the 
" rights " or "just power " of the sovereign over the lives and fortunes 
of the subject is unlimited, and that there is a corresponding duty on the 

* Leviathan, Introduction. 


part of the subject to obey — ia words, precisely corresponds to the ques- 
tion thus stated. 

But to reach this couclaaiou, Hobbes is compelled to assume the exist- 
ence of an imaginary contract or covenant between the individual mem- 
bers of the State — not with the sovereign, but with each other, — by which 
this unlimited right or power is conferred upon him ; which is a manifest 
petitio principii, of the most glaring kind, belonging to the class of what 
are called legal fictions ; which are erroneously supposed to be peculiar to 
lawyers — but are also used, or ratlier misused, by philosophers. These 
consist in the conscious assumption as true of propositions known to be 
false — as for instance, in the legal maxim that the husband and wife con- 
stitute one person, or in the essentially similar proposition involved in the 
notion of a corporation or body politic, that the several members of a 
society, as for instance the State, constitute a person, {i) 

But the assumption of a social contract is not, of itself, sufficient to 
establish the desired conclusion. For it may be reasoned that certain 
conditions are necessarily implied in such a contract — as, for instance, 
that performance by the sovereign of his functions is a condition of the 
contract ; or even that the power of the sovereign might be divested in 
the same way it was conferred ; or that other consequences might follow 
such as are in fact drawn by Locke, Rousseau and others. Hence, it was 
assumed by Ilobbes that the supposed contract of the individual members 
of the State is unconditional, that it is irrevocable, and finally — to cover 
all points — that its efi"ect has been to transfer to the sovereign, not only 
"all their powers and strength," but even their wills, so as "to reduce 
all their wills, by plurality of voices, to one will," and thus to create, not 
merely "a consent or concord," but "a real unity of them all in one and 
the same person."* From which he concludes, that "every subject is 
. . . . author of all the actions and judgments of the sovereign." f And 
"that nothing that the sovereign representative can do a subject, on 
what pretense whatever, can properly be called injustice, or injury ; be- 
cause every subject is author of every act the sovereign doth." Hence 
the killing of Uriah by David "was not an injury to Uriah, .... be- 
cause the right to do what he pleased was given him by Uriah himself; " X 
who, being the author of the act, in fact — upon the principle, qui facit 
per alium, facit per se — committed suicide. 

This extravagant conception of Hobbes is revived in modern times by 
Mr. Bluntschli and others ; the fundamental principle of whose doctrine 
is that the State is an "organized being," or an "organism," having a 
soul and body, a conscience and active organs, and also a will which is 
different from the individual wills of all individuals aud different from 
the sum of them, and even that it is of the masculine gender ; in fine, 
that it is a " moral organized masculine personality, or, more shortly 
.... the political original national person of a definite country " 
(Bluntschli's Theory of the Slate, Bk. i, Cli. i). Or, as expressed by an- 

* Leviathan, Si. iId.,S6. t Id., 101, 102. 


other: It is " an organism, " "a conscious organism," " a moral oi'gan- 
Ism," "a moral personality " (Mulford's The Nation, Ch. i). Obviously 
all this is merely metaphor, and expresses nothing more than the admitted 
fiction involved in the notion of a corporation in regarding it as a ficti- 
tious or ideal person. There is, indeed, a very close analogy between 
States or other corporations and natural persons ; but it is very unsafe 
to reason from tliis analogy ; and to neglect to observe the essential differ- 
ence between the two notions may involve the most serious errors. An 
instance of a great judge being misled by it is famished by the decision 
of Chief Justice Marshal in the celebrated Dartmouth College case, 4 
Wheat, 508. 

In that case the principle was asserted that a charter to a corporation is 
a contract, which, under the constitutional provisions forbidding the 
enactment of laws impairing the obligation of contracts, could not be 
altered by the State ; and the principle was held to apply to the charter 
of the plaintiff — an eleemosynary corporation. But it is clear that, 
strictly speaking, a corporation — which is a purely fictitious or imaginary 
being — cannot itself have any rights, and that what we call the rights of a 
corporation are, in fact, the rights of its stockholders, creditors or other 
individuals beneficially interested ; and hence that the constitutional pro- 
vision can have no application, if there are no such persons— as was in 
fact the case before the court. Hence, in that case — as in all others where 
property has no other owner — the beneficial interest in the property of 
the corporation was in the State, and could deal with it as it pleased. Or, 
to state the proposition more generally, all property held for charitable 
purposes — at least, after the death of the donors — belongs to the State, 
and may be disposed of by it according to its own views of what is right 
and proper. 

A similar question was presented by the proposed legislation in Eng- 
land for the disposition of the property of the old trade companies of 
London ; which survived only for the purpose of holding the propert}' 
vested in them several hundred years ago for charitable purposes. This 
legislation was vehemently opposed as an invasion of private rights ; but 
it is very evident, the funds being devoted to general charity, that only 
the public had an interest in it. 

Here again, therefore, another example of petitio principii is pre- 
sented, consisting in the monstrous assumption that not only the rights 
of the subjects, but even their wills, and their persons are, in some mys- 
terious way, transferred to, and incorporated in the fictitious Leviathan, 
and that there is thus effected "a real unity of them all in one and the 
same person ;" who is thus " enabled to perform the wills of them all " * 
— a doctrine certainly as extravagant as that of the actual conversion of 
bread and wine into the body and blood of Christ, which Hobbes is never 
tired of ridiculing.f 

But independently of these fallacies in the argument — which, were it 

* Leviathan, 81. t l<i; 4^. 276. 204. 


not for their actual influence on political speculation, would be too trans- 
parent to notice — the conclusion itself presents a peculiarly artful and 
effeetive example of the fallacy of irrelevant conclusion or ignoratio 
eTenchi. For, while it seems to respond to the problem propounded, it 
does not really do so, but, when construed according to Hobbes' own 
definitions of the terms used, assumes a very different meaning, or rather 
becomes devoid of all material significance. For, as defined by Hobbes, 
rigJit signifies merely the absence of restraint imposed by law {lex).* 
Hence the proposition, that the power of the sovereign, is not limited bj' 
law, regarded as the expressed will of the sovereign, simply asserts the 
truism, equally applicable to the sovereign and all others, that a man's 
power cannot be said to be limited by his own will. So with regard to 
the termj/'wsi, "the definition of injustice, " he says, "is no other than the 
not performance of contract, and whatever is not unjust, is just. "f Hence 
the conclusion merely asserts that the power of the sovereign is not limited 
by contract. Which, according to Hobbes' theory, is very true ; for 
he is not party to the social contract, and is not bound by any other for 
want of a superior power to enforce 11.% 

So also, with regard to the duty of obedience in the subject, appa- 
rently asserted — this, according to Hobbes' definition, means nothing 
more than the fear of evil consequences to be inflicted by the sovereign 
for disobedience, and ex vi termini must be admitted to exist precisely to 
the extent that there is ground for such fear. 

Hence, translated into plain English, the conclusion asserted is nothing 
more than that the so-called right of the sovereign is an unbridled or law- 
less power, to which prudence demands of the subject that he should sub- 
mit in order to avoid worse consequences. This is an altogether different 
proposition from that which the author undertook to establish, and which 
he apparently asserts, viz., that the rigJit of a sovereign over the fortunes 
and the persons of his subjects, and the corresponding duty of the subject 
to obey, is unlimited ; but nevertheless the conclusion is habitually used 
by him and others, as though equivalent to that proposition. 

In fine, the theory of Hobbes rests wholly upon the assumption that the 
will of the government is the paramount moral standard by which justice 
and injustice, and right and wrong, generally, are to be determined ; and 
from'this it follows inevitably that, in the proper sense of the term, neither 
the sovereign, nor — in relation to the sovereign — the subject can have auj' 
rights, or be subject to any duties or obligations, (j) 

% 6. Kant's Argument. 

Kant, like Hobbes, asserts the absolute or unlimited power of the sov- 
ereign over his subjects; and, like him, is guilty of a manifest petitio 
principii in his reasoning, which is as follows : It is " the right of every 

* Right is that liberty wliicli the law leaveth us {DeC'orpore Politico, Bk. ii, Ch. x, § 3). 
|i«>., p. 72. tLev., 85. 



citizen to have to obey no other law than that to which he has given his 
consent or approval."* But the legislative power is to be regarded as 
" the united will of the people,"f and as necessarily including as such 
the will of every citizen. Hence, every law is to be regarded as an 
expression, not only of tlie will of the government, but of every indi- 
vidual in the Stale ; and hence, "resistance on the part of the people of 
the State to the supreme legislative power of the State is in no case legiti- 
mate ; for it is only by submission to the universal legislative will that a 
condition of law and order is possible. Hence, there is no right of sedi- 
tion, and still less of rebellion, belonging to the people.":}: " The will of 
the people is naturally un unified, and consequently it is lawless ; and its 
unconditional subjection under a sovereign will, uniting all particular 
wills by one law, is a fact which can only originate in the institution of a 
supreme power and thus is public right founded. Hence, to allow a 
right of resistance to tliis sovereignty, and to limit its supreme power, is a 
contradiction ; for in that case it would not be the supreme legal power 
if it might be resisted, nor could it primarily determine what shall be 
publicly right or not. This principle is involved a priori in the idea 
of a political constitution generally, as the conception of the practical 

This, as will be seen, is precisely the argument of Hobbes, with its 
native enormities draped under a cloud of words. Its whole validity rests 
upon the manifest fiction that the toiU of the State is the tinited will of all 
the people ; to wliich it may be answered that what is called " the will of 
the State," is merely the will of the individuals who control the Slate, 
and that the will of these rulers does not necessarily, or even generally, 
concur with the wills of the citizens, even where these happen to concur. 
Furthermore, it is manifest that the term will is purely relative, and im- 
plies some actual creature in whom it exists. Hence, the State, properly 
speaking, cannot be said to have a will ; and when we speak of the will 
of the State, or of the government, or of the legislature, we use the term 
in a figurative sense, based upon the conception of the State as a body 
politic, or in other words as a fictitious person, {k) 

% 7. Huxley's Argument. 

Another argument I find attributed to Professor Huxley in a collection 
of essays lately publislied, under the singularly inappropriate title of " A 
Plea for Liberty." But whether he is in fiict responsible for it, or for the 
use made of it by the author, I do not know. It occurs in the essay 
entitled "The Limits of Liberty," by j\Ir. Douisthorpe, and is as follows : 

"The power of the State may be defined as the resultant of all the 
social forces operating within a definite area. 'It follows,' says Profes- 
sor Huxley, with characteristic logical thoroughness, 'that no limit is, or 
can be theoretically set to State interference !' " (0 

* Philosophy oj Law, p. 1G7. 

fid., p. 166. J /(/.. |). 176. § Id., p. 258. 


It is, however, obvious tliat tlie author of this arguQient, whether Prof. 
Huxley or another, fails to distiaguish between the two senses of the term 
power, to which we have alluded, namely, that of actual power or miglit 
and that oi jural power, or right. In the premises of the argument it is 
used in the former sense, and in the conclusion in the latter — thus pre- 
senting — instead of a "characteristic thoroughness of logic" — a striking 
example of that most common and most destructive of all fallacies, an 
ambiguous middle. 

But independently of this, the argument is obviously a mere rhetorical 
artifice ; for the term, forces, in its proper sense, denotes merely physical 
forces, that operate under fixed laws, from which, from given data, the 
resultant can be mathematically determined. But when we speak of 
social or moral forces, or of the resultant of such forces, the term is used 
in a sense purely metaphorical. Hence, the proposition of Prof. Huxley 
is to be regarded as only figuratively true, and must be translated into 
plain English before it can be logically serviceable. But thus translated, 
no definite meaning can be assigned to it. 

The attempt is however made by Mr. Donisthorpe to render the propo- 
sition more definite by defining the sovereign as consisting of what he 
calls "the effective majority " or "force majeure." But even with this 
explanation the doctrine still remains indefinite. 

What is the effective majority, or superior force— /orce majeure — referred 
to? To this two answers are given, one by the author cited, and the 
other by a writer to whom we will presently refer ; and accordingly as 
we take the one, or the other, the doctrine will assume an essentially dif- 
ferent form. 

(1) According to Mr. Donisthorpe — as will be seen by reference to 
the passage cited in the note — this/orce majeure or superior force is neces- 
sarily vested, not in the unorganized State, but in the government, and 
"the effectite majority " is but another name for the individuals who control 
the government ; and thus apparently we arrive again at the doctrine of 
governmental absolutism, or of the unlimited power of the government, as 
asserted by Hobbes. But this, though supposed by the author to be the 
case, is not so. For, as we have seen, Hobbes' doctrine is that the 
"rights," or "just authority," of the government are unlimited ; whereas 
the present writer unequivocally defines his proposition as asserting only 
that the actual power or force of the government is unlimited — a propo- 
sition essentially different, and obviously false. For not only do govern- 
ments undoubtedly differ in actual power, but the power of the strongest 
is constantly and successfully resisted or evaded, and a limit thus set to 
State interference otherwise than "by the simple process of exploding 
the State." All that can be claimed for Leviathan is that he is bigger and 
stronger than the individual, and therefore in general able to overcome 
his resistance ; but clearly omnipotence is not one of his attributes ; nor 
will any amount of assertion make him stronger than he is. 

(2) The other form of the doctrine oi force majeure proceeds upon pre- 


■cisely the same argument ; but it is a striliing testimony to the lack of defi- 
nite significance in Prof. Huxley's proposition, (or, rather, I should say, in 
the proposition attributed to him), that an essentially different conclusion is 
reached. According to this doctrine — as stated by a late writer* — the sov- 
ereign is not the government, but something outside of the government. 

"The statement," he says, "that municipal law is 'prescribed by the 
supreme power in tlie State,' is false and misleading, unless by the 'su- 
preme power in the State,' is meant the aggregate of all the social forces, 
both material and spiritual, which go to nialie up our civilization." 

The "supreme power in the State," or the sovereign, is therefore this 
"aggregate of all the social forces," or, as elsewhere expressed, this "re- 
sultant of social forces." But this is obviously a merely figurative ex- 
pression, and renders further definition of the sovereign necessary. This 
is eflfected by the more definite proposition that the supreme power in the 
State, or the sovereign, is "that aggregation of individuals which has the 
actual ability to enforce obedience" — it being added by way of explana- 
tion that all political power rests merely " upon the possession by the few 
of the superior strength, both moral and material." 

But this again is a very indefinite notion ; for " the aggregation of in- 
dividuals which has the actual power " is not the majority of the whole, 
or even the majority of the dominant party, but the political managers of 
the latter ; and lience we must have a new sovereign, not only with every 
election, where the majority changes, but with every change in the man- 
agers of the prevailing party. 

(3) The theory of Mr. Tiedeman and that of Mr. Donisthorpe, though 
apparently similar, and therefore liable to be confounded, are, in fact, 
essentially diflei'ent. The latter regards the government as the sovereign, 
and the sovereigntj'- as vested in it. The former asserts that the sovereign is 
something outside of the government ; which lie describes as the "aggre- 
gation of individuals, which has the actual ability to enforce obedience ;" 
or, as elsewhere expressed, "those who possess the political power." The 
former assumes that the power of the government is necessarily irresist- 
ible, and that when it ceases to be so, it is no longer a government ; the 
latter that the government has, in fact, no independent power, but merely 
registers the decrees of the vague and shadowy sovereign existing outside 
of it. Hence, in Mr. Tiedeman's view, the law consists of the commands, 
not of the government, but of "those who (for the time being) possess 
the political power;" and "the commands of these few constitute the 
law, whatever be their superior viciousness or iniquity." Or, as the doc- 
trine is expressed by a writer in a late number of the American Laio 
Review : The law is simply "a system of rules agreed to by the dominant 
element in the State or community," and "government, merelj^ a contri- 
vance for the enunciation and enforcement of these rules," 

This tlieory, though perhaps when taken literally, more extravagant 
tlian any of the others, has at least the merit of recognizing the great 

*Tieileman, Thr Uawiiltai Constitution of the United States. 


truth that there is, in fact, a power outside of the jjovernment and para- 
mount to it, of which the government itself is mainly an instrumentality.. 
The defects of the theory are : (1) that it regards merely the actual power 
of the government and does not consider the more important question of 
its rightful power, or right ; and (2) that it fails to identify the nature of 
this paramount power by which the government is controlled. 

With regard to the extent of the actual power of the government, all 
that can be said is that it varies infinitely in different times and countries, 
and hence, that no theory wiih reference to it is possible. It may, how- 
ever, be asserted that the power of the government is, in no case, unlim- 
ited; — -which is but to say, that the omnipotence of human power is incon- 
ceivable. And it may be further asserted that there is always a power 
outside of it that is in general and in the long run, superior to it. This 
consists, it is sometimes said, in public opinion ; but the expression is an un- 
fortunate one, including not only the settled concurring convictions of men 
with reference to fundamental questions, but also transient popular opinion, 
which is altogether unreliable, and which in fact is often disregarded by 
the government. We must regard the expression, therefore, as referring 
only to opinion that is permanent, that relates to matters of right and 
wrong, and in which all or nearly all concur ; which corresponds almost 
precisely to the Greek term nomos. In this sense, all governments are, in 
the long run, to a large extent, and in civilized countries almost entirely, 
governed by public opinion ; and in this we have the actual power to which 
doubtless Prof. Tiedeman more or less consciously refers. This concur- 
rent opinion, however, consists in an agreement, not of the wills, but of 
the consciences of the people ; and it simply affirms not what is, but what 
ought to be, and is, therefore, nothing more nor less than the general 
conscience or positive morality of the community. That it is always cor- 
rect cannot be affirmed, but that it is so in the main is beyond question ; 
and it is also certain^as will be shown hereafter — that it is the only ad- 
missible practical standard by which questions of general concern are to 
be immediately determined. We have here, therefore, not merely an 
actual power, by which governments are in fact largely controlled, but 
also the rightful power by which they ought to be controlled ; and in 
which, in fact, the rights of individuals and of governments find their 
source. And thus again we arrive at the so-called doctrine of sovereignty 
which asserts that the law or justice is the true sovereign. And this we 
may conceive is the unconscious but real theory intended by those who 
assert the fiction of a "general will," vested in the government, repre- 
senting the particular wills of all the individuals in the community.* 

* The matter in this ami the foUovviug section has been collected from various sources, 
some of which it has been impracticable to note. In addition to the sources specified 
in the notes, I have in this chapter, and also in the Introduction, drawn largely upon 
Mr. Smith's Elements of Right and of the Law (Callaghan & Co., Chicago), and a mono- 
graph of the same author entitled A Critical History of Modern English Jurisprudence. 


%S. Of Austiti's Argument, and of His Theory Generally. 

The theory of Austin is so coherent and closely knit together that his 
doctrine of sovereignty can only be considered in connection with his 
general theory ; which, tlierefore, must be first considered. 

(1) The theory of Austin is in fact wholly based upon the ambiguity of 
the term laic ; which is defined by him as though equivalent to the Latin 
lex, but habitually used as though including the whole law, ox jus. Thus 
— taking for illustration the famous position of Austin, that judicial deci- 
sions are in ftict commands or expressions of the will of the State, and 
therefore in nowise different in essential nature from laws or statutes — it 
is obvious that the conclusion is deduced by an apparent syllogism, of 
which the major premise is the proposition that all law is an expression of 
the will of the State or government, and the minor, that judicial decisions 
constitute part of the law ; from which — assuming that the term law be 
used in the same sense in both propositions— the conclusion must neces- 
sarily follow. But, in fact, in the major premise, it is used in the sense 
of lex, and in the minor, in that of ^'ms. 

The same fallacy is also illustrated by the equally famous position of 
the same writer, that custom does not constitute part of the law — the 
argument being as follows : (1) As before: All law (Zex) is an expression 
of the will of the State. (2) Custom is not an expression of the will of 
the State. Ergo, (3) Custom is not part of the law {jus). 

The theory of Austin also furnishes us with a beautiful illustration of 
the fallacy of petitio j)rindpii. For the theory is wholly deduced from 
the definition of the law as being merely an expression of the will of the 
sovereign, or the Supreme Government, and is tlierefore in effect assumed 
in the definition ; while the definition itself was taken, as it were by acci- 
dent, from Blackstone, without proof, or attempted proof of its correct- 
ness, and as though self-evident, (m) 

The theory also presents several striking and important illustrations of 
the fallacy of irrelevant conclusion or ignoralio elenchi — the most formid- 
able form of which is to use an ambiguous conclusion proved true in one 
sense as though true in all senses. Of this the most important and con- 
spicuous examples are furnished by the reasoning of Austin upon the two 
important subjects of justice, or rights, and of sovereignty — which will 
be considered in the order named. 

(2) In the vocabular}^ of the Austinians, a right is defined as being a 
mere legal power, or, in other words, a power over others, vested in any 
one by the expressed will of the government ; and rights, therefore, in 
this sense of the terra, are mere creatures of that will. Accordingly, 
whatever power be conferred by the government upon any one — though 
it be in violation of every principle of justice and morality, and even of 
mercy or decency — it constitutes a right ; and, on the other hand, no 
^laim that one man may have upon another, however just, can constitute 


a right, unless the government has signified its will that it should be 
such. But the term a right universally carries with it, as part of its 
essential connotation, tlie notion of Tightness, and, consequently, ex vi 
termini, it is impossible to conceive of a right that is not just, or rightful ; 
and hence, Austin was compelled to advance to the position that, "in 
truth, law {i. e., the expressed will of the government), is itself the stan- 
dard of justice." * This view he based on the proposition that the term, 
"just, or tmjust, justice, or injustice, is a term of relative and vary- 
ing import" — denoting merely conformity, or non-conformity, to some 
"standard of comparison," referred to by the speaker. This stan- 
dard maybe either (1) the will of God, as evidenced by utility, or (2) 
positive morality, or (3) the will of the government ; and, accordingly as 
the one or the other of these standards is referred to, the term has an 
essentially different meaning. Hence, it may be said, with equal propri- 
ety, that Socrates was poisoned, and Christ crucified, either justly, or un- 
justly ; or that it is eiWxer just or unjust for one to refuse to pay an honest 
debt, or to return a deposit, where the action of the creditor or owner is 
barred by the Statute of Limitations. Or we may, in one sense of the 
term, approve as just the fate of the gladiator "butchered to make a 
Roman holiday," or the spectacle of Christians converted by Nero by 
way of amusement into animated torches, or of the crazy act of Caligula 
in making his horse a consul, or the marriage of Elagabulus to his cata- 

Of the three standards referred to, Austin holds the first, i. e., utility, 
"as an index to the Divine Will, to be obviously insufficient;" the 
second — positive morality — as mere opinion and therefore of no authority, 
and, consequently, the third — the will of the government — as practically 
the only one admissible. Accordingly, it is asserted, not only by himself, 
but by the modern English jurists generally, that in jurisprudence, or the 
law, the last is the standard, and the only standard referred to ; that the 
term rights, is always used in this sense, and all other senses of the term 
are disregarded. To this, were we considering the theory generally, objec- 
tion might be made on the score that it is an altogether novel sense of the 
term right, and one inconsistent with its proper and generally accepted 
sense ; and that in thus using it, it is almost impossible either for the 
speaker or the hearers to escape from the original connotation of the term. 
And even the suspicion might be suggested that the term is in fact used 
on this account, with a view of covering the innate and essential deform- 
ity of the Austiuiau theory with the cloak of its venerable name. But 
this, though in my opinion true, is immaterial to our present subject, 
which is simply to expose the logical fallacy, and for this purpose it will 
be sufficient to show — as can be very readilj' done — that the term is not 
used consistently by the Austinian jurists in the sense in which it is 

The principle asserted by Austin is \\\&,i justice, in the sense he uses the 



terra, denotes merely conformity to the will of the government, and that 
consequently rights are mere legal or statutory powers, and therefore mere 
creatures of the legislative v^mII ; and from this it logically follows that, 
in this sense of the terms, there can be no such things as natural rights, or 
natural justice, or riglit. To this — except as a matter of taste — provided 
the terms be understood in the sense defined — no objection need be 
urged ; but thus construed, both propositions are without significance ; 
for the one simply asserts the identical proposition that natural rights, or 
rights existing independently of legislation, are not rights created by law, 
in the sense of legislation ; and the other, the natural justice or right, 
which, ex m termini, does not refer to the will of the government as tiie 
paramount standard, is not necessarily J^<s^ice or riglit as determined by 
that standard. The conclusions readied, therefore, have no bearing upon 
the real question involved ; which is : Whether there is, or is not a stan- 
dard of justice or morality paramount to the will of the government? or, 
in other words : Whether there are in fact, such things as natural rights, 
and natural right or justice? Nor is there anything anywhere contained 
in the Austinian theory that throws any light on this great and funda- 
mental question. Yet the conclusion thus reached by Austin — which, 
when construed according to his definitions, is a mere truism — is habitu- 
ally understood and used by his followers — as it was by himself — as 
though establishing the negative of the great question of the existence or 
non-existence of natural justice, or rights, or, in other words, of the exist- 
ence or non-existence of justice, or rights, independently of governmental 
institution. And this is regarded as so triumphantly established, as to put 
the question for the future beyond the pale of legitimate discussion, and to 
relegate the doctrine of Natural Right, or of Justice, and the ineradicable 
faith of the human race generally in the existence of natural rights, to 
the list of exploded delusions — such — to use the illustration of Sir Henrj'' 
Maine — as the Ptolemaic theory of the universe, or the Pythagorean 
doctrine of the music of the spheres ; — a position wholly unjustified, and 
which I take to be the most remarkable and striking illustration of the 
fallacy of ignoratio elenchi presented in the history of Philosophy. 

(3) The argument of Austin in support of the doctrine of absolute 
sovereignty has served to convince two generations of English jurists and 
philosophers, and is fondly regarded by the existing generation, as an im- 
pregnable foundation upon which that theory may securely rest. On this 
account, whatever be our views with regard to the doctrine, the argument 
demands of us a most serious and careful examination. For, on the one 
hand, if it be valid, it has in fact recreated political science, and thus, as 
the Austinian jurists claim, rendered it necessary for us definitely to 
abandon, not only the doctrine of limited sovereignty, but also many 
other almost universal delusions. On the other, before accepting his 
paradoxical views, it behooves us to assure ourselves that the argument 
used to establish them is at least logically conclusive, and that we be not 
misled by merely verbal fallacies. 


Briefly stated, his argument is that it follows, ex vi termini, from the 
definition of the law as consisting exclusively of the commands of the 
sovereign, that the power of the sovereign cannot be limited by law, or, 
in his own language, "is incapable of legal limitation;" or, slated 
syllogistically : 

(1) Whatever is limited by law is limited by the commands of the sov- 
ereign. (2) The power of the sovereign is not limited by liis own com- 
mands. (3) Ergo, the power of the sovereign is not limited by law. (n) 

The three principal terms here used, as we have observed, are all ex- 
tremely ambiguous ; but in the present argument, as will be seen by ref- 
erence to the passages cited in the note, they are precisely defined. Tlie 
term law denotes merely the commands of the sovereign, and the term 
sovereign, the supreme government — whether consisting of a monarch or 
of a sovereign number — and ihe term power, actual power. The proposi- 
tion, therefore, merely asserts that the actual power or might of the govern- 
ment cannot be limited by its own commands. Or, as the argument is 
expressed by liobbes in the passage cited in the note : " To the civil laws, 
or to the laws which the sovereign maketh, the sovereign is not subject : 
For, if he were subject to the civil laws, he were subject to himself; 
which were not subjection, but freedom." 

In this sense ot the terms no objection can be made, either to the argu- 
ment or the conclusion ; but the latter — which, as defined, is without ma- 
terial significance — is habitually used by Austin and his school as equiva- 
lent to several essentially different propositions, and hence, the argu- 
ment, thus used, presents an example, or rather several examples, of the 
f&W&cy oi ig nor atio elenehi ; to which it will be necessary to advert in 

The most important of these is that the conclusion is habitually re- 
garded and used by the Austinians as though a successful refutation of 
the theory to which they are opposed ; which is that the rightful power, 
or right of the government is limited by law, in the sense of jus ; of 
"which, as will be seen, natural right or justice constitutes a part. And 
hence they regard as exploded, not only the proposition above stated, but 
also the hypothesis of natural rights, and of justice, or natural right. 
But obviously the conclusion of Austin is not tlie elenchus, or contradic- 
tory, either of the theory of limited sovereignty, or of that of natural 
right, but is entirely consistent with both. 

The conclusion of Austin, that the power of the sovereign is unsus- 
ceptible of legal limitation, is expressly asserted by him to be equivalent 
to the proposition that "every free government is legally despotic;" 
which, he says, is "the same proposition dressed in a diflerent phrase." 
But this is not the case ; for, accordmg to the most obvious sense of the 
terms, to say that the government is " legally despotic" is to say that it 
is by law vested with despotic power ; which is obviously false, and, ac- 
cording to Austin's theory, impossible. 

The conclusion asserted is also regarded by Austin and his school as a 



refutation of the proposition that the power of the government may be 
limited by constitutional laws or statutes ; and, consequently they assert 
that constitutional law, whether established by custom or by written con- 
stitution, is not in fact law. Which, at least to Americans, seems to be 
inconsistent with facts familiar to them from their own experience. For, 
in this country, the powers of all our governments, State and Federal, 
are, in fact, limited by written organic or constitutional laws ; and it 
cannot be doubted, either that these are statutes or laws in the strictest 
sense, or that our governments are supreme or sovereign governments. 
Nor is this proposition iuconsistent with the conclusions asserted by Aus- 
tin. For, in his argument, the term "sovereign," is expressly defined 
as equivalent to "supreme government," and consequently the law, as 
consisting of the commands of the sovereign, as thus defined, or, in other 
words, of the commands ot the government. But, in the popular, or, as 
it may be called, American doctrine — which asserts the possibility of lim- 
iting the power of the government by written constitutional laws — the 
sovereign whose commands are referred to, is the State as distinguished 
from the government, and consequently the law (lex) is regarded as con- 
sisting nut only of statutes enacted by the ordinary legislature, but as in- 
cluding also statutes enacted by constitutional conventions. Hence, 
having regard to the double meaning of the terms used, the two propo- 
sitions, though verbally, are not really, inconsistent, or, in other words, 
the one is not the elenchus of the other. For we may say, without con- 
tradiction, that the supreme government is at once sovereign, and not 
sovereign — i. e., sovereign, as being the supreme government, or political 
organization in the State, but not sovereign, as being the State ; and that 
while its power cannot be limited by laws enacted by itself, or, in other 
words, by its own commands, it may be limited by constitutional laws or 
commands of the State imposed by a constitutional convention. 

Nor is the fact material — as claimed by Austin — that a constitutional 
convention is itself "an extraordinary or ulterior legislature ; " * for such 
a convention is not a government, even When in session ; and is still less 
so after it is dissolved, and its members mingled with the body of the 

Nor is it true that constitutional laws are without sanctions, even as 
against the government. For, though no punishment is, or can be pro- 
vided for the fictitious or imaginary being, who, in corporate govern- 
ments, is conceived to be the sovereign — and who, in fact, as was observed 
by an eminent jurist, has neither a soul to be saved, nor a body to be 
kicked — yet provision may be, and is made for the punishment of the in- 
dividual ofiicers that constitute the government, or sovereign, and by 
whom its powers are actually exercised ; and in this way our " artificial 
man '' Leviathan, may be, and is, eflectually controlled. 

Finally, Austin seems to regard his conclusion as equivalent to the pro- 
position of Sydney, that all governments must necessarily be vested with 

*Jur., 254. 


"arbitrary powers.'' But tbis is not the case. For, obviously, tbe 
rigbts of tbe government must be more extensive than its functions, and, 
within tbe limit of its rigbts, its powers must necessarily be arbitrary. 
Thus, it is tbe function of a judge to administer justice, but his jurisdic- 
tion or right is to determine the controversy presented to him ; and 
though, by mistake or even by deliberate intent, be may decide wrongly, 
this will not affect his jurisdiction. So, also, according to the Deraocralic 
doctrine, it is tbe function of the federal government, under the consti- 
tution, in levying duties, to levy them for purposes of revenue only, and 
it is a violation of its functions to impose them for the purpose of pro- 
tecting manufactures, or for any other purpose ; but, in order to enable 
it to perform this function efficiently, its right must extend in general to 
the power of imposing duties, even for illegitimate purposes. 

The general acceptance by English jurists of Blackstoae's definition of 
the law, and of the irrational theory founded upon it by Bentbam and 
Austin, and tbe long continued dominion established by the theory over 
the English mind, is one of tbe most curious and instructive phenomena 
presented in tbe history of mankind. Nor is it possible to estimate fully 
the deleterious consequences that have thus resulted. Briefly, it may be 
said that it has eradicated from English jurisprudence, so far as the views 
of theorists can effect such result, the very notions of justice and reason, 
and has thus efiectually isolated the English jurists from those of other 
ages and countries. The theory, and the numerous works of English 
jurists in support of it, are therefore to be regarded not merely as 
valueless, but as even positively deleterious to tbe intellect and 
the conscience of the nation ; and, hence, the first step towards tbe re- 
habilitation of true jurisprudence must be tbe total eradication, not only 
of the theory itself, but of all the prejudices and false notions engendered 
by it. In no other way can we put ourselves m unison with tbe thought 
of the world on jurisprudence and political science, (o) 

^ 9. Bodin's Argument. 

To tbe above arguments may be added that of Bodin ; who, in the 
opinion of Sir Frederick Pollock, "is entitled to share with Hobbes the 
renown of having founded the modern theory of the State,"* and with 
whom, certainly, the doctrine of sovereignty seems to have originated. 
In regular course, therefore, his argument should have been considered 
first ; but, as I am unacquainted with his work, except at second hand, I 
was compelled to omit its consideration. His argument, as stated by Sir 
Frederick Pollock, in tbe paragraph cited, is as follows : 

"In every independent community governed by law there must be 
some authority, whether residing in one person or several, whereby the 
laws themselves are established and from which they proceed. And this 
power being the source of law must itself be above the law : not above duty 

* History of the Science of Politics, 19. 


and moral responsibility, as Bodin carefully explains : Mit above the muni- 
cipal ordinances of the particular States — the positive laios, in modern phrase 
— which it creates and enforces. Find the person or persons whom the 
constitution of the State permanently vests with such authority, under 
whatever name, and you have found the sovereign. 'Sovereignty is a 
power supreme over citizens and subjects, itself not bound by the laws.' 
This power is somewliere necessary to an independent Stale, and its pres- 
ence is the test of national independence. Such is in outline the princi- 
ple of sovereignty as stated by Bodin, taken up a century later by 
Ilobbes, and adopted by all modern publicists, with more or less varia- 
tion in the manner of statement." But obviously this argument, lilie 
that of Austin, rests upon the ambiguity of the term, law, us signifying 
either lex or jus. 

Whether the argument of Bodin is correctly staled by the author cited, 
I do not know, but assume that it is. But if so, Bodin is extremely in- 
consistent ; lor, according to the author, "he teLs us of organic laws or 
rules which may be so very closely associated with the very nature of this 
or that sovereignty that thej^ cannot be abrogated by ihe sovereign power 
itself, and he instances the rule of succession to the French Crown. 
Again, there are institutions of society, such as the family and property, 
which he assumes as the foundation of the Stale ; and with these even the 
sovereign power cannot meddle. From the inviolability of properly he 
draws the consequence that not the most absolute monarch can tax his 
subjects without their consent."* 

§ 10. Uidorical Refutation of the Doctrine of Absolute Sovereignty . 

The doctrine of sovereignty is generally expressed in the proposition 
that the sovereign power, or sovereignty, is unlimited and indivisible. It 
is not explained by the advocates of the doctiine, whether the proposi- 
tion refers to the actual or the rightful power of the sovereign ; that is to 
say, to his might or to his right. But in whatever sense the term is used, 
the doctrine — as we have seen — is not only without definite significance, 
or, in other words, nonsense, and the arguments adduced in support of 
it — even those of the most celebrated philosopliers — a mere tissue of logi- 
cal absurdities, but it is also inconsistent with the whole history of the 
European race, whose principal characteristic and fundamental political 
virtue has been, in sentiment, an abhorrence of unlimited power, and in 
practice, a determined resistance to it, and, in the long course of whose 
history, every epoch and place has been a livmg refutation of the doc- 

Here in our own country, according to the unvarying decisions of the 
Supreme Court of the United States, and of all jurists possessed of even 
an elementary knowledge of the constitutional law, the sovereign pow- 
ers are in fact divided between the federal government and the Slates ; 

* History (if the Science of Politics, p. 21. 


and in each State and in the federal government they are again divided 
among several departments. Hence the power of each political commu- 
nity, and of each department, is limited by that of the others ; and not 
merely is this so in theory, but the courts are empowered to pass upon the 
validity of every legislative or executive act, either of the general gov- 
ernment or the States, and to declare them void if they transcend the 
limits of power imposed by the constitution. 

So also, we were taught in our younger days that under the English 
constitution the sovereign power was vested in the king, the lords and 
the Commons, and that the participation of each of these was necessary 
to the validity of all legislation ; and this was not only the doctrine of 
English lawyers and statesmen, but also of foreign publicists, who saw in 
it the peculiar excellence of the British constitution. Hobbes, indeed, 
had asserted that the sovereign power was vested in the king only, and 
that the doctrine that his single power could be resisted by Parliament was 
anarchical in its tendencies and therefore untenable, {p) and in the same 
way, the modern English jurists, or some ot them, blindly assert tliat the 
sovereign power is vested in the Commons ; but in fact the whole history of 
England is but an illustration of the practical workings of the theory, 
uniformly asserted by the lawyers, that the legislative power is equally 
vested in the three coordinate departments, and that neither has any 
power to act without the participation of the others. The relative power of 
each has, indeed, at diMerent periods, varied extremely. In early ages the 
power of the king was most formidable ; afterwards, the lords, and finally 
the Commons ; but even now, it is simply an absurdity to say that any 
independent power is vested in the latter, for even in tiie last year or two 
we have seen it actually overridden and nullified by the lords ; and so it 
must always be, until a revolution is effected. 

But the most conspicuous illustration of the historical fallacy of the 
doctrine is presented by the constitution of the Roman Republic — the 
most famous, and one of the two or three most efficient and successful 
constitutions that ever existed ; and a somewhat detailed examination of 
the provisions of this constitution will perhaps serve, better than any 
other, to illustrate the subject. 

Under the monarchical government, the whole executive and judicial 
power was vested in the king, who held for life, and the legislative 
power, in the people. The actual power of the king was, in theory, not 
to be resisted by any citizen, and, in practice, it was as nearly irresistible 
aa it was possible to be. But he had no power of legislation, and any act 
of his that went beyond the existing law was regarded simply as an exer- 
cise of unlawful power, (^g) On the other hand, the people, in whom the 
legislative power was vested, could not act of their own motion, but only 
upon a law proposed by the king ; or, in other words, the initiative of leg- 
islation was vested in the king. Nor was every legislative act of the peo- 
ple on the initiative of the king necessarily valid ; there was still an- 
other department in the State, viz., the Senate, in whom was vested the 


power of guarding the law itself, and nullifying such legislation as was 
clearly opposed to fundamental principles, or, as we would say, uncon- 

Originally, the people consisted of the patricians only, who acted in an 
assembly called the Comitia Cariata, and they alone bore the burdens of 
the government, and constituted the military force. But under what is 
Ciilled the Servian constitution, said to have been established by Servius 
TuUius, the population, whether patrician or plebeian, was divided into 
classes and centuries according to property qualification, — the classifica- 
tion being similar to that of the Athenian people by Solon. The inten- 
tion of this arrangement was to make the plebeians, or those who had 
property, equally subject, with the patricians, to taxation and military 
service ; but the assembly of the citizens under this classification, called 
the Comitia Centuriata, gradually acquired legislative power, and took 
the place entirely ot the Comitia Curiata. In this assembly, the classes 
were so arranged as to give a decisive advantage in voting to the higher 

Afterwards, under the republic, a new division of the people was made 
into tribes, and as the primary purpose of this was for the assessment and 
collection of taxes, the assembly of the citizens by tribes was called the 
Comitia Trihuta ; and in this the votes of all the citizens were of equal 
force. This assembly also gradually acquired legislative power, and it 
finally became a coordinate legislature with the Comitia Centuriata. 
Each of these assemblies was vested with full legislative power, and each 
could repeal the acts of the other, or, in fact, either could, in theory, have 
abolished the other. In the one assenlbl3^ manhood suffrage prevailed ; 
in the other, a property qualification that gave the decisive power to the 
wealthy ; and these two coordinate legislative assemblies continued to 
exist alongside of each other during the whole period of the republic, (r) 
Upon the abolition of the monarchy, instead of one king for life, the 
kingly power was vested in two officers, holding for a term of one year 
only, called consuls, in whom was vested all the powers of tlie king, 
not jointly, but in each separately ; so that either consul could act with- 
out tlie concurrence of the other, and either could annul the acts of the 
other, and, indeed, either could remove both himself and his colleague 
from power by nominating a dictator, in whom the whole kingly power 
became at once vested. These officers, that is, the consuls, or the dic- 
tator, had the power of punishing the citizen ; and this power extended 
even to the infliction of ihe death penalty, until, by the Valerian law, an 
appeal was provided, in the case of ca))ital ofi"onses, to the people. In 
addition, it was enacted that every citizen should have the right to kill 
any official, including tiie consuls, should he aspire to a tyranny, and that 
upon trial, proof of the fact should be sufficient to acquit him. 

Originally, the political power, as we have said, was confined to the 
patricians, and afterwards to the patricians and the wealthy plebeians, and 
in consequence the plebeians were much oppressed. This resulted in the 


first secession ; and in the compromise by wliich this was settled, the 
office of the tribunate of the people was established. This consisted, at 
first, of two tribunes of the people, elected by the plebeians, whose per- 
sons were made sacred from arrest or outrage of any kind, and in whom 
was vested the power to veto any act of the consuls or other officers, or 
any legislation proposed ; so that the power was, in fact as well as in 
theory, vested in them of stopping the wheels of government entirely. 
The number of the tribunes was afterwards increased, but this institution 
also continued throughout the whole history of the republic. 

Comment upon these constitutional arrangements is unnecessary. "We 
have here the sovereign powers of the government distributed, not 
merely among different officials and departments acting concurrently, 
but independently, in various officers and ai?semblies, opposed, and gen- 
erally hostile to each other. And yet this constitution — than which, ac- 
cording to modern theories, nothing could be more absurd — was, in fact, 
the most successful in its operation that history has presented us with ; 
and to it we owe the achievements of the Romans during the most suc- 
cessful part of their history, and ultimately the conditions of modern 

§11. Historical Genesis of the Doctrine of Absolute Sovereignty. 

The genesis of this theory is readily accounted for by the historical 
events out of which it grew. In the struggle between the kingly power 
and that of the feudal lords, in the Middle Ages, the former naturally 
came to be regarded as the last refuge of personal security, and the only 
hope of organized social life ; and out of this arose an almost universal 
sentiment in its favor, which found its expression in the modern doctrine 
of sovereignty ; and this doctrine either in its original form, as applied to 
a single monarch, or, in a secondary sense, as applied to other forms of 
government, has come to be so generally received in the political philoso- 
phy of Europe, that the term itself, in popular use, carries with it the 
connotation of being an absolute, despotic power, or right. And this 
notion, intensified by the events of the great English Civil War, and of 
the French Revolution, continues to prevail in Europe, and especially in 
England, and also to a considerable extent in this country. 

Hence, obviously the doctrine is simply the exaggerated expression of a 
sentiment, just and natural in itself, in the form of an absolute proposi- 
tion, and in this form it is obviously untrue. It is, indeed, sufficiently 
manifest that the power of government must be great; and we may even 
say with Hobbes : Non est super terram potestas guce comparetur ei. But 
that it is, or should be, either unlimited or irresponsible, or that it should 
be any greater, within the limits of our power to restrict it, than neces- 
sary for the efficient performance of its functions, does not follow ; nor is 
it possible to conceive of any argument tending to establish such a con- 


Nor is it probable that any one can be found who really believes in the 
doctrine. It .would not be difficult to find in Hobbes' writings opinions 
inconsistent with it ; and even by Bentham and Austin the doctrine is 
asserted with the anarchical qualification that the government may be re- 
sisted, or evea overturned, when demanded by the vague principle of 
general utility. So in history, never has the doctrine been practically 
asserted by any but the predominant party in the government ; nor has it 
ever had the slightest influence with the party in opposition. Nor are we 
without instances of revolutions eifected by men who on previous occa- 
sions had most absolutely asserted the doctrine. Thus, among many 
other instances that might be cited, the cavalier and church party, who, 
in the great rebellion, supported Charles, and asserted in the most unqual- 
ified terms the principle of the divine right of kings, was not restrained 
by its doctrine, from joining with the revolutionary party to dethrone 
James. Nor can any one in this country be found who hesitates to justify 
our own Revolution, or any other of the great revolutions of history by 
wliich tyranny has been overthrown, and constitutional liberty estab- 


(a) "The ancient Greeks applied the name TZoXirturj to all political science. Wa 
(Germans) distinguish Public Law {Staatsrecht) and Politics (Politik) as two special 

" Public Law and Politics both consider the State on the whole, but each from a dif- 
ferent point of view, and in a different direction. In order to understand the State more 
thoroughly, we distinguish its two main aspects— its existence and its life. 

" Public Law [Staatsrecht) deals with the State as it is, i. e., its normal arrangements, the 
permanent conditions of its existence. 

" VoVitics (Politik), on the other hand, Aas to do with the life and conduct of the S' ate." 
— The Theory of the State, Bluntschli translation, p. 2. (The italics are the translator's.) 

"The general science of Right is divided into three principal branches, each one of 
which forms a distinct science : First, the philosophy of right— sm integral part of philoso- 
phy in general— expounds the, fundamental principles of right, whicli result from the 
nature of man as a reasonable being, and determines the manner in which the relations 
between men ought to be established in order to conform to the idea of justice. It cre- 
ates thus, not a chimerical, but an ideal State, towards which social life ought more and 
more to approximate. On the other hand, the history of right — an integral part of history 
in general — makes us know the changes that the laws and the institutions of a people 
have undergone at different epochs of their civilization. Their present state, so far as it 
is comprised in the principles of right actually in force, is determined by positive right, 
private and public ; while civil and political statistics, which are a part of general sta- 
tistics, make us know tlie totality of facts which characterize the state of private and 
political law. Positive right i.s comprised in the history of right, because it changes con- 
tinually wi'.h the culture of the people. Finally the science intermediary between the 
science and the history of right, and bearing upon both, is political scietice (or Policy, la 
science politique). It demands on one hand, from the philosophy of right, the knowledge 
of the end of society, and of the general principles of its civil organization, and con- 
sults, on the other, in history and positive right, and in statistics the antecedents of a 
people, the character and the manners which it has mauitested in its institutions, the 
actual state of its culture, and its exterior relations with other nations. It is from this 
data that political science expounds the reforms for which the State is prepared by its 


previous development, and which it can actually realize. Policy {la poUtique) is, then, 
the science which, upon a historic basis, and in the measure of existing forces, expounds 
the totality of the conditions and of the means proper to assure continued progress, and 
to realize the reforms immediately demanded of the social state." — Ahreu's Cours de 
Droit Naturel, § 2. 

(6) There can be no doubt that the present age is as distinctly unlogical, as the age prior 
to that of Bacon was unscientific, and that in political and social science, and in the sci- 
ence of human nature generally — in the investigation of which logic must always be an 
indispensable instrument— the great demand of the times is the revival of the use of 
logic, and our motto here, as elsewhere, should be, "Back to Aristotle." 

"We .... live in an age," says De Morgan, "in which formal logic has long been 
nearly banished from education ; entirely we may say from the education of the habits. 
The students of all our universities (Cambridge excepted) may have heard lectures and 
learned the forms of syllogism to this day ; but the practice has been small ; and out of 
the universities (and too often in themi the very name of logic is a by-word. 

" The philosophers, who made the discovery (or what has been allowed to pass for one), 
that Bacon invented a new species of logic which is to supersede that of Aristotle, and 
their followers have succeeded by false history and falser theory in driving out from our 
system all study cf the connection between thought and language. The growth of inac- 
curate expression which this has produced gives us swarms of legislators, preachers and 
teachers of all kinds who can only deal with their own meaning as bad spellers deal 
with a hard word— put together letters which give a certain resemblance, more or less, as 
the case may be. Hence, what have been aptly called the slipshod judgments and crip- 
pled arguments which every-day talkers are content to use. Offenses against the laws of 
syllogism (which are all laws of common sense) are as common as any species of fallacy ; 
not that they are always oflFenses in the speaker's or writer's mind, but that they fre- 
quently originate in his attempt to speak his mind. And the excuse is that he meant 
differently from what he said ; which is received because no one can thiow the tirst stone 
at him ; but which, in the Middle Ages, would have been regarded as a plea of guilty." 
— Formal Logic, pp. 2-40, 241. 

"The above," continues the author, after treating of the several fallacies, "were the 
forms of fallacy laid down as most essential to be studied by those who were in the habit 
of appealing to principles supposed to be universally admitted, and of throwing all de- 
duction into syllogistic form. Modern discussions, more favorable, in several points, to 
the discovery of truth, are conducted without any conventional authority which can 
compel precision of statement : and the neglect of formal logic occasions the frequent 
occurrence of these offenses against mere rules which the old enumeration of fallacies 
seems to have considered as sufficiently guarded against by the rules themselves, and 
sufficiently described under one head, the fallacia conscquentis. For example, it would 
have been a childish mistake, under the old system, to have asserted the universal pro- 
position, meaning the particular one, because the thing is true in most cases. The rule 
■was imperative : ' not all ' must be ' some,' and even ' all,' when not known to be ' all,'' was 
' some.' But in our day nothing is more common than to hear and read assertions made 
in all the form, and intended to have all the power, of universals, of which nothing can 
be said except that most of the cases are true. If a contradiction be asserted and 
proved in an instance, the answer is : 'Oh ! that is an extreme case.' But the assertion 
had been made of all cases. It turns out that it was meant only for ordinary cases. Why 
it was not so stated must be referred to one of three causes— a mind which wants the 
habit of precision which formal logic has a tendency to foster, a desire to give more 
strength to a conclusion than honestly belongs to it, or a fallacy intended to have its 
chance of reception. 

"The application of the extreme case is very often the only test by which an ambiguous 
assumption can be dealt with : no wonder that the assumer should dread and protest 
against a process which is as powerful as the sign of the cross was once believed to be 
against evil spirits. Where anything is asserted which is true with exception, there is 
often great difficulty in forcing the assertor to attempt to lay down a canon by which to 
distinguish the rule from the exception. Everything depends upon it ; for the question 



will always be, whether the example belongs to the rule or to the exception. When one 
case is brought forward which is certainly an exception, the assertor will, in nine cases 
out of ten, refuse to see why it is brought forward. He will treat it as a fallacious argu- 
ment against the rule, instead of admitting that it is a good reason why he should define 
the method of distinguishing the exceptions : he will virtually and perhaps absolutely 
demand that all which is certainly exception shall be kept back, simply that he may be 
able to assume that there is no occasion to acknowledge the difficulty of the uncertain 
cases."— /d., pp 270, 271. 

(c) "After mathematics, physical science is the least amenable to the illasions of feel- 

" The processes of scientific induction involve only the first elements of reasoning, and 
present such a clear and tangible surface as to allow no lurking place for prejudice ; 
while questions of polities and morals, to which the deductive method, or common logic, 
as Bacon calls it, is peculiarly applicable, are ever liable to be swayed or perverted by 
the prejudices he enumerates " {Novem Organum, Aph. xl. Editor's note). The last refer- 
ence is to Bacon's celebrated doctrine of Idols {efdcoXa, illusions, or false appear- 
ances)— Orr/awif/n, Aph. xxsviii, et seq.— one of the most profound and valuable parts of 
his works, and which we cite as authority for our own strictures. 

It may be added that the logical processes involved in the Mathematical and the Ex- 
perimental Sciences are so extremely simple as to render their non-observance almost 
impossible ; while in Politics, Morality, and the science of human nature generally, they 
are so difficult as hardly to be overcome by the greatest genius. 

Of this, the most striking example is presented by the celebrated Hobbes— the most 
powerfully logical genius and the most profound political philosopher since Aristotle. 
But his preeminent mental gifts were, to a large extent, neutralized by the almost insane 
dread of the miseries of civil war, generated by his own experience, or inherited from 
his mother: of whom it is related that she was prematurely delivered of the philoso- 
pher by reason of the fright into which she was thrown by the report of the approach of 
the Spanish Armada. From this and the associations of his life he was naturally led to 
espouse the royal cause in the great rebellion ; and thus it resulted that his work, com- 
posed at an advanced age, after his political opinions were formed, is but a magnificent 
polemic in support of a preconceived conclusion, originating in the idiosyncrasies of his 
nature, and his peculiar experiences. Yet, in the opinion of Leibnitz, he was one of " the 
only two'" (the other was Grotiusl " who were capable of reducing morals and jurispru- 
dence to a science." " So great an enterprise," he says, " might have been executed by 
the deep searching genius of Hobbes, if he had not set out from evil principles " (Mcin- 
tosh's nissfrtations). 

As it is, his works, on account of the unrivaled style, the logical power, and the pro- 
found and penetrating genius displayed in them, constitute by far the most valuable 
contribution to political science in modern times; and, in the critical examination to 
which I to subject them, it is my hope, that 1 may not only point out the dan- 
gerous fallacies contained in his reasoning, rendered trebly formidable by his logical 
skill and polemical ability, and by a style that is nearly the perfection of expression, but 
that I may also call back the attention of my readers to writings preeminently deserving 
of consideration, not only from their intrinsic merits, but from the fact that in them is 
to be found the source and spring of modern political philo.sophy. 

Another instance, no less striking, is presented by Austin— a writer hardly inferior to 
Hobbes in logical capacity, and far more fair-minded and disposed to observe the re- 
quirements of logic, and onewhose works, in thedepartmentof jurisprudence, are hardly 
of less value than those of Hobbes. As far as can be judged there was no particular dis- 
position on his part towards arbitrary government, but the particular bias (or, as Bacon 
would call it, idol) to which he was subjected was the notion, derived from Bentham and 
Blackstone, that the law (jus) is mere expression of thn will of the sovereign or supreme 
government. This he accepted, with unquestioning faith, as his first principle, and from 
it, with an intrepidity of logic that is much to be admired, he deduced his whole theory. 

(d) The doctrine of absolute sovereignty is at once an attempted solution of the problem 
of the rights, or ri4,'htful powers, of the State— which will be discussed fully in the body ot 


this work— and, also, to a certain extent, a theory as to the nature of the State. Regard- 
ing it as wholly false, and as even absurd, I deem it a matter of importance, in order 
to avoid embarrassment in our investigations, to dispose of it before entering upon our 
main subject. Otherwise, as will be seen, we would find it necessary, at every step of our 
progress, to interrupt our investigations in order to refer to and refute tliis almost uni- 
versal prejudice. 

Another motive, scarcely less ])0werful, for introducing the subject here is to vindicate 
the strictures contained in the text as to the almost universal non-observance of logic by 
modern political theorists, and the resulting fallacious and inconsequent methods of 
reasoning characterizing their writings. In executing this task. I shall freely avail my- 
self of the technical names of the several fallacies used by logicians ; for, though this 
may give something of the appearance of pedantry to my discourse, there is no other 
method by v/hich the task can be so briefly and effectively accomplished. 

(c) The terms "sovereign" and "sovereignty" have widely departed from their 
original meaning. The former term is equivalent to the low Latin siiperamis (foTmeA with 
suffix anus from Latin super), and etymologically it denotes merely superiority, and 
hence, in a political sense as originally used, it denotes merely the monarch or other 
supreme officer of a State, and its correlative, sovereignty, the jjower vested in the sover- 
eign. Both terms are strictly comparative, and there is nothing in them to imply that 
the sovereign or supreme power in the State is absolute or unlimited ; all that is implied 
is that the sovereign is superior to the other officers of the State, and his power superior 
to theirs. Hence, as originally used, the terms were applied with equal propriety, not 
only to the king or monarch, but to his feudatories, who each were said to be sovereign in 
their own domain. Afterwards the term came to be restricted to the monarch only, from 
whom it was transferred to the government generally; and afterwards, as will be 
explained, to the State as distinguished from the government and various other abstrac- 
tions. The term is, therefore, now one of the most vague in the language, and, as 
observed by a late American writer, it " is seldom used by two respective writers as 
embodying the same notion, and is oftener used to supply the absence of a distinct 
notion "—that is to say, it is used by different writers with aU sorts of different mean- 
ings, and still more frequently without any distinct meaning at all. He is, therefore, 
of the opinion, in which I entirely agree, that "because of its uncertainty, of its special 
unfitness as applied to a federal State, and of its suggestion of absolutism, the word 
should be dropped," or, at least, ostracised for a while. " As used by some," he adds, 
" it is not deceptive or dangerous ; but it will not be so used, and in the future as in the 
past will breed disorder and anarchy " (Bliss on Sovereigtity , pp. Ill, 175). 

In order to guard against the numerous unfortunate associations of the term, we sub- 
join the just and sober observations of Mr. Ahrens upon the subject : 

" '^\\e sovereignty .... has been confounded with omnipotence and absolutism, and 
centralized, instead of being conceived organically and as dividing itself among the sev- 
eral domains of the social order. Nevertheless this conception is in accord with the true 
sense of the word. Many theories, it is true, have been built upon the nature of sov- 
ereignty (a vague word originating in the Latm of the Middle Ages from super ioritas 
superanus), which lends itself readily to arbitrary conceptions, but, according to its 
true sense, the term denotes merely a power which, in its own domain, decides finally 
without being submitted in this respect to a superior authority. In this sense we rightly 
speak of a court of justice which decides finally as sovereign, but as the social order is 
au organic whole of several spheres of life, of which each ought, in virtue of its 
autonomy, to decide, in last resort, upon a certain class of relations left to its determina- 
tion, each sphere of life is sovereign in its degree and in its kind. This acceptation of 

the notion of sovereignty was not unfamiliar to the epoch of the Middle Ages 

In effect, in the feudal hierarchy, the sovereignty was always attributed to the last 
member. 'Each baron,' says Beaumanoir, 'is sovereign in his barony.' .... What is 

said here of the baron applies to-day to every free personality Every man is sov- 

eigu in the sphere of action where it belongs to him to act finally without being responsi- 
ble to a superior authority. It is the same with the family and with the commune 

"As to the mode of exercise of the sovereignty, it is to be received as a fundamental 


principle that like all power it ought to be a sovereignty of right " {Cours de Droit Nal- 
urel, ? 110). 

(/ ) Or rather, we should say, that the r-^al sovereign consists of the managers who con- 
trol the assembly. For nowhere is the saying truer that there is a power behind the throne 
greater than the throne than in the case of large assemblies, which experience has 
demonstrated are incapable of rational and consistent action, and are always controlled 
either by committees or by party managers. This notion, as will be seen, is in fact em- 
bodied in one of the numerous doctrines of sovereignty, of which the present day is 
extremely prolific" {ivfia, p. 2C0). 

{g) A striking illustration of the danger of using the term sovereignty, even thus quali- 
fied, is presented by Mr. Von Hoist, in his Constitutional History of the United States, or 
rather the first volume of it. The conclusion there reached (I say " conclusion," because 
the history seems to have been written for the purpose of establishing the proposition) 
is that " Sovereignty is One and Indivissible— the Sovereignty of Law." 

This is apparently an innocent, though certainly not a self-consistent propo-^ition. For 
if the law be sovereign, it must follow that there are as many different sovereigns as there 
are laws ; and hence that in every State of the United States there must be two sov- 
ereigns, for in each there are two different and entirely independent systems of law. But, 
in fact, the doctrine of the sovereignty of the law, though formally asserted by him, is 
not the doctrine he has in his mind. His real doctrine— to the establishment of which 
all his facts and arguments are marshaled— is that sovereignty is indivisible, and there- 
fore vested exclusively in the Federal Government, and not to any extent in the States. 
In other words, the obvious, and I may say avowed purpose of his work is to teach us— 
who, for over a hundred years, under the uniform decisions of the courts, and the con- 
curring opinion of constituiional lawyers of all political faiths — have believed ourselves 
to be living under a divided sovereignty— that we have been living under an impossible 
delusion, thus presenting an instractive example of how difficult it is for a man to escape 
the influence of his early environment, and the consequent almost imnossibility for a 
European to comprehend the simple and rational doctrine of political power, unre- 
servedly accepted by the founders of our Constitution, uniformly affirmed by our courts 
and our statesmen, and rendered familiar to us by long use ; which is, that the sovereign 
or supreme powers of government may be, and in fact are, distributed between the 
General Government and the State governments, and in each among the several depart- 
ments of the Government. (On this point see further infra, pp. 229, et seq.) 

" In viewof the danger of the common notion of sovereignty and the necessity of sub- 
mitting it to a superior principle, several eminent publicists (Royer-Collard, Guizot and 
others) have sought to transfer the sovereignty itself into an ideal sphere and to place it 
in reason, truth or justice. But sovereignty expresses a mode of action of the will, and, 
hence, pertains always to living persons, individual or collective ; but it is of high impor- 
tance to comprehend that it ought to be exercised like all will, according to the princi- 
ples of reason and of justice." — Ahren's Cours de Droit Natarel, § 110, " De la Souveri- 

The same observation is made by Mr. Bliss : The conception " of Guizot, wliich 
enthrones justice, reason, as the only sovereign, commands our reverence, yet in fact it 
is but a denial that sovereignty can exist among men ; it destroys the word by giv- 
ing it to an obligation ; it is not a figment of the imagination like the social contract ; it 
is a metaphor— a sublime one, but of little use in our present inquiries." "How 
sublime," he adds, "is Guizot's metaphor, and how welcome the word as he uses it. 
Justice, reason, law, as embi>dyiug its dictates, is alone sovereign : let the notion of any 
other sovereign be trampled under foot" (Bliss on Soi'ereignty, pp. 172-175). 

Thus amended the doctrine is but a reexpression of the opinion of Aristotle. {Politics, 
b. 3, c. Ifi): "Moreover, he who bids the law be supreme makes God supreme ; but he 
who intrusts man with supreme power gives it to a wild beast, for such his appetites 
often make him." 

{h) It is well explained by Hobbes, that in matters of experience where we fail to judge 
correctly, it is simply an "error," or erroneous opinion. But when we make a mistake 


in reasoning, or, as it is commonly called, deductive reasoning, the result is not merely 
an erroneous opinion, but au absurdity, or nonsense. As the passage is one of extreme 
interest, and containing a truth of great importance, I quote it at length : 

" When a maa reckons witliout the use of words, which may be done in particular 
things, as when upon the sight of any one thing we conjecture what was likely to have 
passed, or is likely to follow upon it, if that which he thought likely to follow follows 
not, or that which he thought likely to have passed hath not passed, this is called 
' error,' to which even the most prudent men are subject, but when we reason in words 
of general signification and fall upon a general inftrence which is false, though it be 
commonly called ' error,' it is indeed an ' absurdity,' or senseless speech ; for error is but 
a deception in presuming that something is passed or to come ; of which, though it were 
not passed, or not to come, yet there was uo impossibility discoverable. But when we 
make a general assertion, unless it be a true one, the possibility of it is inconceivable, 
and words whereby we conceive nothing but the sound are tliose we call ' absurd,' ' in- 
significant,' and 'nonsense' {Leviathan, p. 2S). In other words, to talk illogically is to 
talk nonsense. And, as very fewot us are logic^al, and none of us always so — like Molieres 
hero, who was unconscious that he talked prose— we talk nonsense all our lives without 
knowing it. Socrates discovered tbis more than two thousand years ago, and the great 
need of the age is to rediscover it." 

(i) Bentham was never tired of reproaching the lawyers with their use of legal fictions 
or ol repeating that a flctiou is not an argument, and the charge is repeated ad nauseam 
by his followers ; and one of them. Sir Henry Maine, has even based a theory upon it. 
But it may be said that the legal fiction of the lawyers is always recognized as such, and 
never used as an argument, but merely as a convenient form of expression, or as a con- 
venient means of reconciling a true doctrine with some arbitrary rule that caunot be 
disavowed, and that its use is governed by the maxim : In flctione juris semper xquitas ex- 
islit; while the fictions of philosophers, such, for instance, as the social contract, though 
known by them to be false, are stated and argued from as though in fact true, and with- 
out any regard to the extravagance of the conclusions they may lead to. 

0) On this point Hobbes, and the modern English jurists, — who are at one with him — 
occupy precisely the position of the ancient cosmologists, who explained the stability of 
the world by supposing it to rest ultimately on a turtle, but did not explain upon what 
the turtle rested. In the same way these jurists regard private rights as resting upon the 
will of the State, but in denying the existence of natural right they render it impossible 
to conceive of any foundation upon which the right of the State can be rested. 

{k) It u ill be observed here that while the argument of Kant rests mainly upon the fic- 
tion of the personality of the State, and of its supposed will representing "the united 
will of the people," it involves also other fallacies incidentally referred to to eke outthe 

The first consists of the ambiguous proposition that it is only by submission to the leg- 
islative will that a condition of law and order is possible ; which may mean either a gen- 
eral submission or an absolute submission without exception. The former proposition is 
altogether true, and it is difficult to exaggerate the importance of the duty of the citizen 
to obey the government ; but the latter is not only false, but is inconsistent with the very 
existence of social order, the true foundation of which is, the consciousness of inviola- 
ble rights in the subject, and the manly determination in the last resort to vindicate 
them by force even against the government. The ideal State is not composed of slaves 
to human power, but, in the noble language of Sir William Jones, of men "who their 
duties know, .... but know their rights, .... and knowing, dare maintain them." 

The other fallacy consists in the argument, that the power of the State would not be 
supreme if it might be resisted, and consequently, " to limit its supreme power is a con- 
tradiction." But obviously the term "supreme power" is merely comparative, and 
denotes nothing more than the highest political power in the State, which, if we use the 
term " power" in the sense of right, is necessarily limited by right, and if we use it in 
the sense of actual power, may be, and in fact is, limited in various ways. 


(l) " Ab exira," continues the author, " this is so. I have always endeavored to show 
that the effective majority has a right (a legal right) to do just what it pleases. How can 
the weak set a limit to the power of the strong? .... 

" The time comes in the life of every government when it becomes effete, when it rules 
the stronger by sheer force of prestige ; when the bubble waits to be pricked, and when 
the first determined act of resistance brings the whole card-castle down with a crash. 
The bouleversetnent is usually called a revolution. On the contrary, it is merely the out- 
ward and visible expression of a death which may have taken place years before. In 
such cases a limit cau be set to State interference by the simple process of exploding the 
State. But when a State is (as Hobbes assumes) the embodiment of the will of the 
effective majority— /orce majeure— o{ the country, then clearly no limit can be set to 
State interference— a6 extra. And this is why Hobbes (who always built on fact) described 
the power of the State as absolute. This is why he says that eacli citizen has conveyed 
all his strength and power to the State. I fail to see any a priori assumption here. It is 
the plain truth of his time and of our own. .... We must never forget that .... 
rights, when created, are created by the will of the strong for its own good pleasure, and 
not carved out of the absolute domain of despotism by a higher court of eternal jus- 
tice It is the absence of all this a pc/oci vaporings common to Locke, Rousseau and 

Henry George, which renders the writings of Hobbes so fascinating and so instructive." 

(?«) The opprobrium justly resting upon English and American lawyers, for their simplic- 
ity in accepting this definition, is much heightened by the curious fact that the definition it- 
self was the result of a blunder on the part of Blackstone, which, in any countrj-, where the 
slightest knowledge of the Roman law survived among the lawyers, could not have escaped 
immediate detection. It is a telling commeutaiy on our proficiency in that law, that the 
mistake remained undiscovered, and the definition universally accepted for over a century. 

The definition obviously originated in the failure of Blackstone to comprehend the term 
jiis civile as used in the Roman law. According to the conception of the Roman lawyers, 
the law is made up of two elements, viz., the jus gentium and the jus civile : the former con- 
sisting of those rational principles which are common to, and constitute the substantive 
part of all systems of law ; and the latter, of the arbitrary or accidental rules peculiar to 
any given system. According to this conception, the jus civile constituted not the whole, 
but only a part of the law ; and, if we have regard to Importance, rather than bulk, a very 
inconsiderable part of it. But Blackstone unfortunately mistook it for the whole, and 
avowedly founded his definition upon it. 

(re) I append at length the argument of Austin as variously stated by himself: 

" It results from positions which I shall try to establish .... that the power of a sover- 
eign is incapable of legal limitation " (Jur., 264). 

" Every positive law, or every law simply and strictly so called, is set directly or circuit- 
ously by a sovereign person or body to a member, or members, of the independent political 
society wherein that person or body is sovereign or supreme " {Id., 270). 

" Now, it follows from the essential difference of a positive law, and from the nature of 
sovereignty and independent political society, that the power of a monarch, properly so 
called, or the power of a sovereign number in its collegiate and sovereign capacity, is incap- 
able of legal limitation. A monarch or sovereign number, bound by a legal duty, were sub- 
ject to a higher or superior sovereign ; that is to say, a monarch or sovereign number, bound 
by a legal duty, were sovereign and not sovereign. Supreme power limited by positive law 
is a flat contradiction in terms " (Id.). 

" The proposition that sovereign power is incapable of legal limitation, will hold univcp- 
sally or without exception." 

Hence, "against a monarch, properly so called, or against a sovereign number in its col- 
legiate and sovereign capacity, constitutional law and the law of nations are nearly in the 
same predicament ; each is positive morality rather than positive law " (Td., 277). 

" Bfat if sovereign or supreme power be incapable of legal limitation, or, if every supreme 
government be legally absolute, wherein (it may be asked) doth political liberty exist, and 
how do the sujjreme governments, which are commonly deemed free, differ from the supreme 
governments, which are commonly deemed despotic? 


" I answer that political or civil liberty is the liberty from legal obligation which is left or 
granted by a sovereign government to any of its own subjects, and that since the power of 
the government is incapable of legal limitation, the government is legally free to abridge 
their political liberty at its own pleasure and discretion" (/(/., p. 281). 

" Every supreme government is free from legal restraints : or (which is the same proposi- 
tion dressed in a different phrase), every supreme government is legally despotic. The dis- 
tinction, therefore, of governments into free and despotic, can hardly mean that some of 
them are freer from restraints than others ; or, that the subjects of the governments which 
are denominated /ree are protected against their governments by positive law " {Id., 283). 

" That the power of a sovereign is incapable of legal limitation, has been doubted and 
even denied, but the difficulty, like thousands of others, probably arose from a verbal am- 
biguity. The foremost individual member of a so-called limited monarchy is styled, improp- 
erly, monarch or sovereign. Now the power of a monarch or sovereign, thus improperly so 
styled, is not only capable of legal limitations, but is sometimes actually limited by positive 
law ; but monarchs or sovereigns, thus improperly so styled, were confounded with monarchs 
and other sovereigns in the proper acceptation of the terms. Since the power of the former 
is capable of legal limitations, it is thought that the power of the latter might be bound by 
similar restraints. Whatever may be its origin, the error is remarkable. For the legal in- 
dependence of monarchs, in the proper acceptation of the term, and of sovereign bodies in 
their corporate and sovereign capacities, not only follows inevitably from the nature of sov- 
ereign power, but is also asserted expressly by renowned political writers of opposite parties 
or sects : by celebrated advocates of the governments which are decked with the epithet 
free, and by the celebrated advocates of the governments which are branded with the epithet 

" If it be objected," says Sydney, " that I am a defender of arbitrary powers, I confess 
I cannot comprehend how any society can be established or subsist without them. The 
difference between good and ill governments is not that those of one sort have an arbitrary 
power which the others have not, for they all have it ; but rather, in those which are well 
constituted, this power is so placed as it may be beneficial to the people." 

And he concludes by quoting the opinion of Hobbes, that he " who hath the sovereign 
power is (not) subject to the civil laws. For if he were subject to the civil laws, he were 
subject to himself, which were not subjection, but freedom" {Id., 286, 287). 

(o) Of late years many of the works of German jurists have been translated into English, 
and from this, and the happy cessation of works by English Austinian jurists, of which the 
English press was previously prolific, it may be inferred that the reign of Austin over the 
English mind is coming to an end. Indeed, it is said by Sir Frederick Pollock, in the Law 
Quarterly Review, with what truth I cannot presume to judge, that Austin's theory is now 
regarded by advanced jurists in that country as " dead and buried ; " and, in a late number 
of the Review, we find an article by the same author in which a more rational view of the 
nature of law and of natural right is very aptly expounded. But, as the whole literature of 
modern English jurisprudence, including the writings of Sir Frederick Pollock himself, has 
hitherto been devoted to the establishment of the Austinian heresy, he should have ex- 
plained to his readers the fact that English jurists have been wandering for over forty years 
in the wilderness of Austin's speculations, and that what they have hitherto taught has been 
false and misleading. For, until the prejudices engendered by Austin's theory are re- 
moved, and the sequelae of the disease eradicated, there can be no room for a more rational 
investigation of the subject, and many readers will have great difficulty in reconciling 
their former with their present teachings. 

{p) " These are the rights which make the elements of sovereignty, and which are the marks 
whereby a man may discern in what man or assembly of men, the sovereign power is placed 
and rests. For these are incommunicable and inseparable. The power to coin money, to dis" 
pose of the estates and persons ol infant heirs, etc may be transferred by the sover- 
eign, and yet the power to protect his subjects be retained. But if he transfer the militia, 
he retains the judicature in vain, for want of execution of the laws ; or, if he grant away 
the power of raising money, the militia is in vain ; or if he give away the government of 
doctrines, men will be frightened into rebellion with the fear of spirits. And so, if he con- 


sider any one of said rights, we shall presently see that the holding of all the rest will pro- 
duce no effect in the conservation of peace and justice, the end for which all commonwealths 
are instituted. And this division is it whereof it is said, " a house divided in itself cannot 
stand," for unless this division precede, division into opposite armies can never happen. If 
there had not first been an opinion, received by the greatest part of England, that those 
powers were divided between the King and the Lords and the House of Commons, the peo- 
ple had never been divided and fallen into this civil war, first, between those that disagree 
in politics, and after, between the dissenters about the liberty of religion ; whicli have so in- 
structed men in tliis point of sovereign right that there be few now in England that do not 
see that these rights are inseparable. It will be so generally acknowledged at the next re- 
turn of peace, and so continue till their miseries are forgotten ; and no longer — except the 
vulgar be better taught than they have hitherto been " {Lev., p. 88). 

The doctrine " that the sovereign power may be divided," is " plainly and directly against 
the essence of a commonwealth." " For what is it to divide the power of a commonwealth 
but to dissolve it ; for powers divided mutually destroy each other" {Id., 149). 

In connection with this proposition, is to be noted a strange contradiction in Hobbes' doc- 
trine. For — as has been shown — the sovereign powers are necessarily divided in every 
form of government, except that of a simple monarchy ; yet he admits that there may be 
" three kinds of commonwealths ; namely, ' Monarchy,' where ' the representative (or sov- 
ereign) is one man;' 'Democracy,' where the sovereign is 'an assemljly of all that will 
come together,' and 'Aristocracy,' where the sovereign is ' an assembly of part only,' " {Id., 
85). This concession was, however, forced upon him by the necessity of admitting the his- 
torical existence of such forms of government. But in his opinion the first was at least the 
preferable, and perhaps the only legitimate form {Id., pp. 92, el seq.). 

{q) One of the most deleterious effects of the Austinian theory upon the minds of the 
modern English jurist, is that it has apparently rendered him incapaVjle of conceiving a 
power limited by right unless the right is also capable of being enforced. To his mind " a 
right without a remedy is a vain thing ; " by which he understands that such a right cannot 
exist ; and to him the notion that the power (». «., the right) of the Roman king was limited 
by law, while in fact his actual power was practically irresistible, is incomprehensible. But 
the passage cited had a nobler meaning in the mind of Chief Justice Holt, by whose lips it 
was first uttered ; the inference drawn from it by him was, that where the remedy was want- 
ing, it ought to be furnished — as expressed in the maxim of the law : ubijus ibi remediutn. 
And in fact such is the constitution of human nature, that where a right is firmly fixed in 
the conscience of a people, it will sooner or later find its remedy. And, even though the 
remedy be long coming, it will only render the case more hopeless to infer therefrom that 
the right does not exist. Thus, at Rome, during the monarchy, no legal remedy could be 
found for the violation of the law bj' the king ; nor could he be made in any way respon- 
sible ; for he was king for life, and, when he ceased to be king, could no longer be reached 
by human power. But when, for the king holding for life, there were substituted consuls, 
chosen annually, in whom was vested the kingly power unaltered, the principle at once came 
to have a practical application ; for while the consul's power was irresistible, and his person 
sacred, during his term, he became liable upon its expiration, and, like any other person, 
might be called to account for his violation of the law — as was frequently exemplified la 
actual practice. 

An analogous case is presented by the early Norman kings of England ; whose power — as 
elsewhere under the feudal system — could in practice be restrained only by force. It was, 
however, a principle of the law then recognized, that the power or right of the kind was 
limited by the law ; or, as expressed in Bractou's maxim : " Ipse autem rex non debit esse sub 
homine, sed sub Deo et lege, quia lexfacil regem " (Spence, Eq. Jiir., 125). 

Among the limits thus imposed by the law upon the king's power was the principle of im- 
munity of life, j)erson, and property in the citizen. This right was habitually violated, and 
with impunity, by the king ; but the i)rinoii)le nevertheless continued to be recngnized and 
asserted, and after a long struggle, commencing with Miigiia Cliarta, in the reign of .bihn, 
and ending with the habeas corpus Act, in the reign of Charles II, it was finally vindicated 
in practice, and the power of the king effectually limited. 


(r) The nature of this political arrangement is graphically described by Hume ; JEssai/s, 
Part ii, Essay 10 ; from which we extract the following : 

"A wheel within a wheel, such as we observe in the German empire, is considered by 
Lord Shaftesbury as an absurdity in politics : but what must we say to two equal wheels 
whieu govern the same political machine, without any mutual check, control, or subordina- 
tion ; and yet preserve the greatest harmony and concord? To establish two distinct legis- 
latures, each of which possesses full and absolute authority within itself, and stands in no 
need of the other's assistance, in order to give validity to its acts ; this may appear, before- 
hand, altogether impracticable, as long as men are actuated by the passions of ambition, 
emulation, and avarice, which have hitherto been their chief governing principles. And 
should I assert, that the State I have in my eye was divided into two distinct factions, each 
of which predominated in a distinct legislature, and yet produced no clashing in these inde- 
pendent powers, the supposition may appear incredible. And if, to augment the paradox, 
I should affirm, that this disjointed, irregular government, was the most active, triumphant, 
and illustrious commonwealth, that ever yet appeared, I should certainly be told, that such 
a political chimera was as absurd as any vision of priests or poets. But there is no need 
for searching long, in order to prove the reality of the foregoing suppositions : for this was 
actually the case with the Roman republic. 

" The legislative power was there lodged in the comitia ceniuriala and comitia tributa. In 
the former, it is well known, the people voted according to census ; so that when the first 
class was unanimous, though it contained not, perhaps, the hundredth part of the common- 
wealth, it determined the whole ; and, with the authority of the senate, established a law. 
In the latter, every vote was equal : and as the authority of the senate was not there requis- 
ite, the lower people entirely prevailed, and gave law to the whole State. In all party divi- 
sions, at first between the patricians and plebeians, afterwards between the nobles and the 
people, the interest of the aristocracy was predominant in the first legislature ; that of the 
democracy in the second : The one could always destroy what the other had established : 
Nay, the one, by a sudden and unforeseen motion, might take the start of the other, and 
totally annihilate its rival, by a vote, which, from the nature of the constitution, had the 
full authority of a law. But no such contest is observed in the history of Rome : no in- 
stance of a quarrel between these two legislatures ; though many between the parties that 
governed in each. Whence arose this concord, which may seem so extraordinary ? . . . . 

"No instance is found of any opposition or struggle between these comitia ; except one 
slight attempt of this kind, mentioned by Appian in the third book of his civil wars." 

There is some confusion as to the various Roman legislatures, which it would be hopeless 
to attempt to untangle in the brief space at our command. It seems, however, that another 
assembly, the Concilium Plebis, from which the patricians were excluded, was at a later date 
also vested with legislative power. But this assembly, though differing in its mode of action, 
was, in the power it represented, scarcely distinguishable from the Comitia Tributa. (See on 
this point, Momsen's History, and the article on " Roman Law " in the Encyclopedia Britan- 
nica.) At a later period the Senate also acquired independent legislative power ; and, on 
the institution of the empire, the emperor also. Accordingly, in Justinian's collections, the 
ditfereut kinds of statutes are enumerated as consisting of leges, jjlebiscila, Senatus consulta, 
principum placita, corresponding respectively to the several legislatures named in the text, 
and in this note. 



Op the Nature of the State. 

§ 13. Of the Definition of the State, and of lis Several Kinds. 

(1) From what has been said ia tlie Introduction, it may be inferred 
that political science in its present state, is beyond all others prolific in 
logical fallacy ; and this conclusion will be found to be verified at every 
step of our further progress. This arises, not from any peculiar lack of 
ability in political writers — for, as we have seen, those who are responsible 
for these fallacies, are the very foremost of their class, and some of them 
preeminent, among all classes, in genius and even in logical capacity — 
but principally from two causes already adverted to, that are character- 
istic rather of the age than of any particular class or individual — namely, 
bias or prejudice, and contempt, or, at least, practical neglect of logic. 

The latter, as we have observed, is in great measure, an eifect, of which 
the former is the cause. For, in the absence of disturbing causes, to rea- 
son logically is, for men of some clearness of intellect, as natural as to 
walk in the right direction ; or, if a mistake occurs, it is readily detected. 
But where men reason only to support preconceived opinions, in whose 
favor they are warmly interested, there is no absurdity of Which they are 
not capable. And it may be added, as bias is the most fruitful cause of 
the non-observance of the rules of logic, so the rigid observance of those 
rules is the only effectual remedy for it. 

Hence, in our own investigations, to avoid the pitfalls into which others 
have fallen, it behooves us, above all things, to be careful in our logical 
processes ; and on this account it will be found advantageous, even at 
the expense of some appearance of pedantry, to continue to make use of 
familiar logical rules and logical terms. 

Of all the fallacies to which political writers are addicted, the most 
common, and at the same time most serious, is the fallacy of petitio prin- 
cipii, or of the illegitimate assumption of first principles. It has indeed 
been said that all logical reasoning necessarily involves a petitio principii, 
and this is so far true that in every syllogism the conclusion is in fact in- 
volved in the premises, and when the premises are admitted, inevitably 
follows. And so, in any legitimate chain of deductive reasoning, how- 
ever extensive, the last conclusion is in fact involved in the premises first 
assumed, or, in other words, in the first principles — as for instance, the 
most recondite theorems of mathematics, in a few simple maxims and 
definitions. Nor is reasoning possible without the assumption of first 
principles. Until these are agreed upon all discussion is mere sound. 

Generally our first principles must be obtained from observation of 



facts, or, in other words, from experience ; and, as all men are more or 
less observers, and as the facts from which our notions in political and 
moral subjects are, to a certain extent, obvious, there results necessarily 
a more or less agreement among men with reference to these matters, and 
the conclusions thus reached are embodied in familiar speech, and thus 
become established as part of the mental furniture of mankind. Hence, 
in deductive reasoning generally, it is not required of us to go back to the 
ultimate principles of all knowledge, but we legitimately commence with 
propositions which are regarded as established. But, in doing this, it is 
essential for us to examine such propositions with care, in order to satisfy 
ourselves there is no objection to them, and to state them in such clear 
and unequivocal terms as to challenge the attention of our hearers or 
readers to their exact significance. When this is done, the assumption of 
the premises is not illegitimate ; or, in other words, there is no petitio 
principii. But where our premises are so expressed as to entrap our 
hearers, and jjerhaps ourselves, into admissions that we would not delib- 
erately make, the fallacy takes place. Hence the first step in reasoning 
is the careful consideration of our first principles, with a view of deter- 
mining whether we arc prepared deliberately to assert, and others, to 
admit them. And in this process, as in the case of agreements generally, 
there is in fact no agreement unless each party understands what is in the 
mind of the other, and both fully appreciate the significance of the matter 
agreed upon. 

The most usual and formidable form of this fallacy is thatof using ques- 
tion-begging terms ; which consists, either in including in the formal defi- 
nition of a term some unproved assumption as being of the essence of the 
conception denoted, or — without including such assumption in the formal 
definition — by using the term as though such assumption were implied. 
By this method the propositions from which our conclusions are to be 
deduced, instead of being proved as they ought to be, are unconsciously 
imbibed by the mind with the definition, or with our conception of the 
term, and the conclusions thus in effect assumed. In this way, in fact, 
nearly all modern writers proceed, and, either consciously or uncon- 
sciously, seek to inculcate their opinions about the State by including 
them in their definitions of the term — thus assuming, without any attempt 
at proof, their own fortuitous conceptions as part of its essential nature. 
And thus the idea or concept of the State, in itself extremely definite and 
simple, has become to be so obscured by the extraneous notions thus 
attached to it, as to render it almost impossible to perceive its simple 
essential features. 

The power of this method of persuasion is well understood by many, 
and unscrupulously used ; (o) but, with the mass of writers, tlie fallacious 
process, though none the less effective, is entirely unconscious. Hence, 
if we would avoid error, the necessity of a scrupulous attention to the 
definition of terms ; which is the essential condition of correct reasoning. 
For to the lack of this nearly all the errors in political and moral science 


by which mankind are afflicted can be directly traced.* Hence, the 
rules of definition constitute perhaps the most important part of logical 
doctrine, and too great care cannot be expended on their application. 

These rules, though generally neglected, are extremely simple in their 
nature, and to some of them we will briefly refer : 

The use of a definition in logical discourse is merely to ascertain and 
determine the sense in which the term defined is to be used ; or, in other 
words, the whole office of a definition is simply to describe the class of 
objects denoted by the term. In effecting this, the definition must, to 
some extent, disclose the nature of the tiling denoted by the term, but it 
does so only to the extent necessary to fix the meaning of the term ; and 
beyond this, it is not any part of its function to e.xpress the nature of the 
thing denoted. 

Another obvious rule Is that, while it is necessary for the definition of 
a term to contain enough to distinguish or define the class of things 
denoted by it from all other classes of things, it is almost equally import- 
ant that when this is effected it should contain nothing more. In other 
words, a correct logical definition, to use the technical expression, must 
be 2)^1" genus et differentia — that is to say, it must specify the general class 
to which the species of things denoted by the term belongs, and the 
essential characteristics by which this is distinguished from other species 
of the genus, or, in other words, the specific difference ; and the last, i. e., 
the specific difference, should contain only sufficient characteristics to 
distinguish the species, and no more. Having stated the essential char- 
acteiistic necessary to distinguish the species, all others may be demon- 
strated, or proved by evidence ; and it is therefore illegitimate to assume 

Another rule — which will complete the list of those necessary to be 
referred to here — is that the words used in the definition should be more 
clear, or more susceptible of definition tlian the term defined. Or, in 
other words, that we do not fall into the error of trying to explain the 
unknown by something still more unknown {Ignotum per ignotius). 

(3) The above rules have been habitually violated in the definitions 
given us by political writers; and the result has been that the fa lacy 
under consideration, and especially that form of it which consists in the 
use of question-begging terms, is one of the most fruitful sources of polit- 
ical heresies. A conspicuous instance of this is furnished by Austin, 
whose theory, as we have observed, is wholly deduced from his assumed 
definition of the law ; which in turn derived its plausibility from the 
ambiguity of that term in our language, in denoting at once lex and jus. 
But in the current definitions of the State, we will find equally con- 
spicuous, and perhaps even more dangerous examples of this fallacy. 

*As Hobbes says: "A man that seeketh precise trutli had need to remember what 
every name he uses stands for, and to phvce it accordingly, or else lie will find himself 
entangled iu words as a bird in lime twigs ; the more he struggles, the more belimed."— 
Lev , pp. 24, 25. 


Amonsj these one of the most remarkable is the definition of Bluntschli 
and his American followers, already adverted to ; which defines the State 
as an " organism," or as "an organic being," having a soul and body, a 
wi'.l, a conscience, and active organs, and, in the opinion of Bluntschli, 
even as being of the masculine gender. (6) This is obviously an extreme 
violation of the third of the rules above specified, which demands that 
the words used in the definition should be clearer tlian the term defined. 
Here the term, "organism," is used in an entirely new sense, which is 
not defined, and which it is extremely difficult to define. It vaguely sug- 
gests that there are, in the nature of man, certain principles of action, from 
which result certain characteristics of the State similar or analogous to 
those characterizing natural persons. But what these elements of human 
nature and resulting character istics of the State, in fact, are, can only 
be determined by extended and laborious observation ; and, even when 
determined, they do net properly enter into the definition, but belong 
rather to the theory of the nature of the State — the subject of our future 
investigations ; or, in other words, to the sequel, rather than to the begin- 
ning of our discourse. 

Another example of vicious definition is given us by a late American 
writer, who assumes, among "the peculiar cliaracteristics of the organi- 
zation which we term the State," numerous qualities that may, or may 
not, belong to it — and which, at all events, do not properly belong to the 
definition — and among others the possession of absolute and unlimited 

" The State," he says, " is sovereign. This is its most essential princi- 
ple What now do we mean by this all-important term and princi- 
ple, ' the sovereignty?' I understand by it original, absolute, unlimited, 
universal power over the individual subject and over all associations of 
subjects."* This indeed is but an expression of the prevailing doctrine of 
sovereignty, which has already been fully considered. It is again alluded 
to simply for the purpose of observing, that whether true or not, the pro- 
position has no place in the definition of the State, or among the postu- 
lates or axioms of political science. If the proposition be construed as re- 
ferring to the actual power or might of the State, its truth or falsity is to 
be determined by historical evidence ; or, if it refer to the rightful power, 
or right of the State, by the principles of jurisprudence, or right. In 
either case, if true, it can be proved, and hence, to assume it in the defini- 
tion, or otherwise without proof, is an illegitimate assumption ; or, in 
other words, a petltio principii. 

Numerous other instances of the same fault occur ; some of which are 
referred to in the note. 

(3) The above review of the current definitions of the State (though I 
fear somewhat tedious) will serve to guard us against errors into which 
it seems men are peculiarly prone to fall. Thus guarded we will find no 

* Political Science, etc., Burgess, Professor of History, Political Science and Interna- 
tional Law, Dean of the University Faculty of Political Science in Columbia College. 
Vol. i, pp. 51, el seq. (c) 


difficulty in arriving at a correct and satisfactory definition of the State, 
the conception of which is extremely simple. 

Proceeding according to our logical rules, the first step— which is with- 
out difficulty — is to determine the genus, or superior class of which Stales 
constitute a species. This genus obviously consists of societies or associa- 
tions of men. Of these some are natural — such as the family, the tribe, 
the city, etc., and others voluntarily formed, or, as they may be called, 
artificial, such as associations for business, charity, religion, or any oiher 
purpose that men may desire to pursue in common. Here we have to do 
with the former class only, or natural societies, and it will be understood 
we always use the term in that sense. 

Of societies of this kind, there are numerous varieties, as for ex- 
ample, single families, patriarchal families, or clans (gentes, y^'-'''}), village 
communities, or wandering tribes, cities, or associations of villages, feuds, 
and Slates composed of feuds, national Stales, or States of the modern 
European type, empires, federal States, independent and subject States, 
and many others ; and to complete our definition, our only task will be 
to determine which of these shall be included, and which excluded, and 
to ascertain the specific difference of the State accordingly. 

Here the first and most important difterence is between societies that 
exist separately or independently, and those which form part of superior 
associations. The latter are merged in the higher associations, of which 
they become part, and thus cease to exist independently. This process 
has, in the history of mankind, gone on naturally and inevitably until all 
other associations have finally n>erged into and become part of a State; 
and in this manner, as Aristotle lucidly explains, the natural generation of 
the State has taken place. The State, therefore, is the only autonomous, 
or independently existing human society, and this may be taken, there- 
fore, as constituting the specific difference, or at least an element of the 
specific difterence of the species we call the State. Whether any further 
element is required to complete the definition is next to be considered. 

In defining a term we must, as far as possible, conform to usage ; but 
the term " State, " as commonly used, varies somewhat in meaning, and 
our definitions of it may, therefore, vary, accordingly as we give it a 
greater or less extension. But in its most general sense the term may, 
with propriety, be applied to all autonomous societies, and the State may, 
therefore, be defined as an autonomous society of men. And this is the 
sense in which I propose to use the term. 

Others, however, would restrict the definition so as to exclude some 
socieiies of this kind. Thus, a late writer — founding his opinion upon 
what I conceive to be a misinterpretation of the views of Aristotle — 
would exclude from the definition of the State, the gens, the village com- 
munity, the tribe, and in fact all other associations historically anterior 
to the city.* 

* 7he City State, by W. Warde Fowler, M.A.. l<"ellow ami Sub Rector of Lincoln College, 
Oxford. The mistake of Mr. Fowler results from bis not bearing in mind that the pecu- 
liarsubject of Aristotle's treatise is the city (-(/AtV), and not the State generally. 


Again, a late American writer. Dr. Mulford,* deliberately adopts the 
term, "nation," in place of the term " State," and in this he is followed 
by the authors of the work on Politics already referred to. (6) This, of 
course, would be unobjectionable were it intended simply to distinguish 
the nation as one kind of State, instead of using — as seems to be their in- 
tention — the former term in the place of the latter as belter expressing 
the conception denoted by it. But this is, in effect, though perhaps un- 
consciously, to exclude from the definition of the State, not only the vil- 
lage and the tribe, but also the city, which, with the Greeks and Ro- 
mans, was for a long time the only form of State existing. But obviously 
this conception of the State, as well as that of Mr. Fowler, is too re- 
stricted. For though in modern times, when we use the term, the form 
of State we generally have in view is the modern national European 
Stale, yet we also habitually apply the term more extensively ; and to 
give it the more restricted meaning would be in conflict with Aristotle's 
principle, now almost universally accepted, and which is undoubtedly 
the fuadamental fact of political science, that "man is a political ani- 
mal," and therefore necessarily always a citizen or member of a State, 
or, in other words, that he cannot exist in a stateless condition ; for ac- 
cording to this notion before the city there was no State. We must, 
therefore, regard all autonomous human societies as constituting States, 
and include in the definition all the several kinds of such societies enu- 
merated above, except the single family. This we exclude simply be- 
cause, in no period of history known to us, has the single family existed 
independently ; but even with regard to the family in its simplest form, 
as consisting merely of man and woman, this also, if we could conceive 
of it existing independently — as, for instance, in the case of Adam and 
Eve in Paradise — might, with propriety, be called a State, or at least a 
State in embryo. 

Again, it is a very common error, resulting from the general reception 
of the delusive doctrine of sovereignty, that a society in order to consti- 
tute a Stale, must be entirely independent of all external control ; and 
this absolute independence is regai'ded as an essential element of the 
definition. But this is certainly opposed to common usage, according to 
which we speak of subject, as well as of independent Stales, and of sov- 
ereign, and semi-sovereign States. 

And though, of course, within certain limits, men are at liberty to vary 
in their definitions, yet the definition contended for would be, not only in- 
convenient, but unscientific. For history, in the past, and in the present, 
presents us with numerous examples of subject Stales — societies in which 
the dependence is so slight as not materially to afiect the character of the 
society as a Stale — as, for example, the several States once wholly subject 
to Turkey, but afterwards independent in all respects, except in that of 
paying tribute. The definition I have given would, therefore, seem to be 
not only more in accordance with usage, but in all respects preferable. 

* The Nation, passim. 


There is, indeed, some difficulty in determining what amount of 
dependence would be sufficient to deprive the dependent society of title 
to the name of State ; but this difficulty occurs throughout all the depart- 
ments of natural history — as, for instance, is illustrated by the difficulty 
in determining where vegetable life and where animal life begins ; and is, 
therefore, no objection to the definition ; in which the principle of dis- 
tinction is the simple consideration, whether the society in question has an 
independent existence, or exists simply as a part of some other society or 
State. This question, though in some cases difficult, is, in general, easily 
to be determined. 

I define a State, therefore, simply as an autonomous society of men. 
By "autonomous," I do not mean complete and absolute independence 
of external control, but simply such degree of independence as is incon- 
sistent with the notion of the society referred to being an integral part of 
another State. And it may be added that by the term " society " a cer- 
tain degree or kind of permanence is necessarily implied. For the term 
itself, according to its etymology, and also according to its habitual use, 
denotes an aggregation of companions or habitual associates. 

In this definition, we have omitted an element almost universal, 
namely, the permanent occupation of a common territory. This, how- 
ever, cannot be regarded as an essential element of the notion of the 
State ; which may be conceived, and has in fact existed in a migratory 
condition, as for instance, the Israelites in their wanderings, and the Ger- 
man tribes prior to their settlement. Indeed, in the history of the race 
the first principle of association is that of kinship, and it is by this prin- 
ciple that the State is first recognized and determined ; the influence of 
the common territory in determining the State is of later origin. But 
such a condition can exist only in primitive times, and we may, there- 
fore, without error, leave it out of view and regard the permanent occu- 
pation of a common territory as an element in the definition. In other 
words, in our investigations, we may confine our consideration to the sub- 
ject of territorial States. 

A still more important omission from the definition seems to be that 
the element of government is apparently omitted. History nowhere pre- 
sents us with a society of men absolutely without government or politi- 
cal organization, and we might, therefore, confining ourselves entirely to 
the facts historically known to us, include this element in our definition. 
But this would be to violate the rule that the definition of a term should 
contain no more elements than are necessary to define the class denoted ; 
as, for instance, as if we should define a triangle as a three-sided figure 
having three angles. The State being thus defined, it may be conclu- 
sively inferred from the nature of men, as known to us in history, and 
otherwise from experience, that in every State the fact of government 
must, so far as our experience goes, also exist. But it is possible that in 
prehistoric times men existed without government, and that, in some 
higher state of human development in the future, government may be- 


come unnecessary. I prefer, therefore, to regard government or politi- 
cal organization not as an essential element, but as an inseparable acci- 
dent of the State. No material error will be involved, however, in includ- 
ing it in the definition, and in deference to common usage and for conve- 
nience otherwise, the State may be defined as an "autonomous politi- 
cally organized society ;" or, as Austin defines it, " an independent politi- 
cal community." 

Thus defined. States may be variously classified, either historically, as 
the primitive village or tribe, the ancient and the mediaeval city, the feu- 
dal State, the modern national State, etc., or logically, as subject and in- 
dependent States, or as simple and complex States, etc. 

Of the last an instructive example is furnished by the feudal regime ; 
in which the several feuds, each in itself a State, constituted in effect a 
federal State. Historically, this system is a subject of capital importance, 
and deserves the most careful consideration, but, except for purposes of 
illustration, will not be considered in this work. 

To us a much more important example of the complex or composite 
State is presented by what is called the federal State as developed in mod- 
ern limes — a subject of extreme interest, and to which we must devote a 
somewhat extended consideration. 

Before passing to this, however, it will be observed that our definition 
does not include leagues or confederations of States. These, indeed, are 
political societies, but of States, not of men, and more properly, there- 
fore, fall under the subject of the external relations of States. They, 
however, constitute a most important subject for consideration ; and per- 
haps in them alone is to be sought the realization of what the Germans 
call the "idea," as distinguished from the "concept" of the State, and 
which is to be realized only in the " world- State." 

§13. Of the Fedtral State. 

A federal State, instead of occupying exclusively a certain territory, in 
fact occupies the territories of the constituent States, out of which it is 
formed in common with those States ; and thus the people which consti- 
tutes it consists of the peoples of the several States, regarded for certain 
purposes as one people. It differs essentially, as we have observed, from a 
federation, which is a mere league of States, and in which the community 
constituting the confederacy consists of States, and not of men ; while 
a federal State is not a community of States, but a people, precisely as in 
the case of a simple State. On the other hand, the federal State, as well 
as its constituent States, di2"er from the ordinary, or simple State, in this, 
that the powers of the former as well as those of the latter are each 
definitely limited ; or, in other words, the sovereignty, or aggregate of 
the sovereign, or supreme political powers, is divided between the federal 
and the constituent States ; so that each is sovereign in the definite sphere 
of political action allotted to it, and no further. Hence, in a federal 



union, there are always several communities or peoples occupying a com- 
mon territory, namely, the community or people of the federal State, and 
the communities or peoples of the several States ; and thus, in each of 
the constituent States, there are two peoples or communities, consisting 
of the same individuals, or rather, one people or community and part of 
another ; that is to say, the people or community constituting the con- 
stituent State, and the part of the federal people or community occupy- 
ing the same territory. 

Of this kind of State, the most instructive instance is that of the 
United States of America, the general nature of which is sufficiently 
familiar, and from which our description of the federal State has, in 
effect, been taken ; and which we will further consider. Briefly, this 
State was voluntarily formed by several independent States, upon the 
principles agreed upon and inserted in the Constitution ; which thus con- 
stituted, not only a national Constitution, but a contract or obligatory 
agreement between the several States. By the provisions of that instru- 
ment, certain powers were conferred upon the federal government, and 
it was expressly provided, that "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."* Hence, the obvious dis- 
tinction, universally recognized by all competent jurists and publicists, 
between the federal constitution and those of the several States ; the 
former is an express grant of powers to the federal government, which is 
vested with no powers except such as are granted to it, either expressly 
or by implication ; the latter is a mere limitation upon the general sov- 
ereign powers vested in the State. Hence, it follows that each govern- 
ment is paramount, supreme or sovereign with reference to matters within 
its own sphere of rights ; but any act of the federal government, or of a 
State government, in excess of its powers, is absolutely void, and may 
be disregarded, not only by any State or by the federal government, but 
by any individual. Hence, also (which is but another statement of tiie 
same proposition), the sovereign or supreme political powers are divided 
between the federal and the State government-^, each being sovereign in its 
own sphere. All this, though often iguorantly disputed, has uniformly 
been asserted by the Supreme Court of the United States, as well as by 
jurists generally, and, as is well known to all lawyers, is the established 
law of the land, (d) 

This view of the nature of the federal State is at once simple and 
entirely rational, and, it may be added, is the view generally entertained 
by American lawyers and jurists of all political faiths. But, outside of 
the legal profession, it is generally repudiated by American writers north 
of Mason and Dixon's line ; and the opposite doctrine — namely that the 
federal government is alone supreme, and the States entirelj' subordinate 
— is generally received among the writers of that section of the country, 
and has in fact colored, not only their political, and even their hisloii- 

* Const. U. S , Amend. XII. 


cal writings, but tlieir wliole literature. Tliis view has also become a 
matter of popular faitli witli the members of a great party ; to whom the 
very name of States rights is offensive — and it is also very largely, if not 
generally, received among European publicists. On this account, if not 
for its intrinsic merits, the opinion demands, and will receive a critical 

The opinion in question rests wholly upon the doctrine of absolute sov- 
ereignty, which has already been considered at length ; and from which, 
it must be admitted, the conclusion is logically deducible. For if it be 
true that the sovereignty is unlimited and indivisible, and that it is vested 
la the federal government, it follows that a federal State is at once a prac- 
tical impossibility and a logical absurdity. 

For obviously, in general, no Slate would ever be willing to enter into 
a federal union, if the doctrine be recognized that by doing so it would 
part altogether with its sovereignty, and subject itself to a foreign domi- 
nation, and that too, according to the assumed doctrine, a domination 
absolute and unlimited in its nature. Certainly, had such a doctrine 
been broached in the constitutional convention which framed the fed- 
eral constitution, the federal union would never have come into exist- 
ence ; nor can it now be asserted without violating every principle of 
good faith. 

But independently of this, the doctrine is logically absurd ; for if it be 
assumed that the sovereignty is indivisible, it would follow that, in every 
so-called federal union, it must be vested exclusively, either in the federal 
State, or in the several constituent States, and that the former must be 
subordinate to the latter, or the latter to the former. But obviously, upon 
the former hypothesis, the union would be a mere confederacy, or league 
of States ; and upon the latter, it would differ in no essential particular 
from the ordinary or simple State ; for in such case the subordinate States 
would be nothing more than mere municipalities, such as universally 
exist in all States. 

It would be an endless task to enumerate all of the disastrous conse- 
quences that have resulted, not only to political science, but to the prac- 
tical interests of men, from this purely fictitious notion of sovereignty ; 
but the subject may be sufficiently illustrated by observing, in connection 
with the present subject, that from this doctrine — the fruit of a question- 
begging term — there has resulted, in our own history, nearly a century of 
bitter conflict, ending in four years of destructive war, and, it is to be 
feared, in the permanent alienation of the two sections of the country. 
For, upon the assumption that sovereignty is indivisible, a proposition 
accepted by both sides, it is clear, as we have observed, that either the 
federal government is sovereign, and the Slates subordinate, or the States 
sovereign, and the federal government a mere league or compact ; and, 
as both propositions are equally untenable, it was impossible, in the long 
controversy between the North and South, for either party to be con- 
vinced, and nothing was left but the arbitrament of arms. It may be 


said, therefore, that the great civil war was but a logomachy, or fighting 
about a word. 

Other causes doubtless concurred in bringing on the war, such as slavery 
and the tariff; for it cannot be doubted, on tlie one hand, that, with those 
in the South who owned slaves, the protection of tlieir property was a 
strong motive, or, on the other, that, with a large, wealthy and influential 
class at the North, the preservation of a market was an equally control- 
ling consideration. But no one who is familiar with the history of the 
contest, and especially with opinion and sentiment, as it existed both at 
the North and the South immediately before the war, can doubt that the 
paramount issue in the minds of the great mass of honest people was the 
relative supremacy of the federal and the State governments, or that this 
question originated in the absurd doctrinaire notion of the indivisibility of 
sovereignty, or, in fine, that this notion was the ultimate cause of the war. 

§ 14. Of the Historical Origin of the Slate. 

The subject of the historical origin of the State — whicli must not be 
confounded with what may be called its causal origin, or raison d'etre, or 
cause of existence of the State — a very difTerent subject — is one of 
great interest ; but its consideration does not belong to the theory of the 
State, except in so far as it may serve to illustrate or verify the principles 
involved in the discussion. A brief consideration of it will therefore be 

With regard to modern States, we are, in general, able to trace back 
the history of each to its origin ; but this is uoi true of the ancient States, 
whose beginnings are shrouded in the mists of antiquity. All, therefore, 
that we can know of the origin of the primitive State, with the exception 
of a few historical facts, is confined to such inferences as may be drawn 
from the nature of man ; but from tliis, the general course of the original 
genesis and development of the State is sufficiently obvious. The primi- 
tive society is the family ; and out of this, even in the absence of other 
supervening causes, must inevitably grow, as from a germ, the larger 
society, which we call the State, whether the village or tribe, the city 
or the nation. Other causes may indeed concur in the development of 
the State, the chief of which is war or conquest ; but without these the 
same course of development must inevitably take place. 

§15. Of the Causal Origin, or Raison d' &tre of the State. 

Hence, therefore, passing to the causal origin, or raison d'etre of the 
State, it is evident that it does not need the refined hypothesis of a social 
contract, or of direct divine appointment, to justify its existence, but it is 
to be regarded as a naturally existing phenomenon, in the same sense as 
man himself exists. Hence, also, it seems to be an absurdity to speak, as 
many do, of "the State of nature," as opposed to the social State ; f<n- the 
social State is, in fact, the natural State of mankind, and the State of 


nature but another name for it. The term is, indeed, very commonly used 
to denote what may be more properly called the anarchic State, or society 
without government ; but iu this sense it denotes a purely fictitious idea, 
"which has probably never existed, and which, unless human nature be- 
comes radically improved, can never exist. For it is evident from the 
most superficial observation, that the nature of men is such as to impel 
them, irresistibly, to live in society, and that in order for them to do so gov- 
ernment is essential. Hence, as rightly defined by Aristotle, "man is by 
nature a political animal " (avOpwTzog (pbatt TzoXtru6-y ^u>ov, Pol.,i, 2, §9); 
in which principle we have the cause of the genesis, and continued exist- 
ence of the State ; the end, or at least the effect of which is, to secure the 
existence of the conditions necessary to the life and to the welfare or hap- 
piness of man. Or, as expressed by Aristotle, " the State is first founded 
in order that men may live, but continued that they may live happily." 
Hence, we may admit with Burke, that the State " is not a partnership in 
things subservient only to the gross animal existence of a temporary and 
perishable nature," but "a partnership in all science, a partnership in 
every virtue, and in all perfection."* 

§ 16. Of the Distinction Between the State and the Government. 

But in accepting this proposition, it is necessary to distinguish carefj.illy 
between the State and the government. Government, or political organ- 
ization, is a necessary and perhaps essential part, but not the whole of the 
State. Outside of the government there is the people, for whom the gov- 
ernment exists, and for whom all political power is held in trust. The 
State, therefore, must be conceived as consisting of the government and 
of the people. The end, and the corresponding functiou of the State, is 
to promote the happiness or well-being of the people in every respect ; 
but the agencies by which this is effected are twofold ; namely, by gov- 
ernment, whicli is organized force, and, without the intervention of gov- the natural influence of men upon each other, and by volun- 
tary cooperation. Hence, the end, and corresponding function of govern- 
ment is not coextensive with that of the State ; and the proposition we 
have asserted of the one cannot be accepted as true of the other. We 
must then next inquire in what the necessity of government consists, or, 
in other words, its raison d'etre. 

§ 17. Of the Causal Origin or Raison d' htre of Oovernment. 

While man is irresistibly impelled to live in society, there exist also in 
his nature certain anti-social tendencies, which, unless restrained, are 
irreconcilable with the existence of social life. These result from the un- 
due empire of the self-regarding principles of his nature, which in general 

*The reader will perhaps recognize the last observations as taken from Sir Frederick 
Pollock's History of the Science of Politics, No. 42, Humboldt Library, pp. 49, 50. But, as 
will be seen, this must not be taken as indicating any very consider.ible identity of our 
views in general. 


overmaster his regard to the well-being, and even to the rights of others. 
Thus, in the absence of restraint, he is, by his own evil desires, and from 
the fear of like treatment from others, almost irresistibly impelled to 
invade and attack his neighbors, and by means of force or fraud to sub- 
ject them to his own power, or, in the expressive language of the law, to 
convert Iheni and Iheir property to his own use. Hence results the neces- 
sity of government ; without which there would necessarily exist a uni- 
versal and continuous conflict between men, which it would be no exag- 
geration to call, with Hobbes, a condition of permanent war of "every 
man against every man."* Hence, we may conclude with him, that " the 
final cause, end, or design of men, who naturally love liberty (in them- 
selves), and dominion over others, in the introduction of that restraint 
upon themselves in which we see them live in commonwealths, is the 
foresight of their own preservation, and of a more contented life thereby; 
that is to say, of getting themselves out from that miserable condition of 
war which is necessarily consequent to the natural passions of men when 
there is no visible power to keep them in awe."f 

But in agreeing with Hobbes on this point, it is not necessary for us to 
accept also his psychological theory (in which he is followed b}' Bentham 
and Austin), that men act always from selfish motives, and are incapable 
of any other. The sentiments of benevolence and justice, though less 
strong, are as really principles of human nature as is regard to one's own 
interest. In this respect, the views of Mr. 'Calhoun are more just, 3'et 
equally sufficient to establish the conclusion reached. The question and 
the solution of it is thus slated by him : 

" What is that constitution of our nature, which, while it impels man to 
associate with his kind, renders it impossible for society to exist without 

" The answer will be found in the fact that, while man is created for the 
social State, and is accordingly so formed as to feel what afi'ects others, as 
well as what affects himself, he is, at the same time, so constituted as to 
feel more intensely what affects him directly, than what affects him indi- 
rectly through others ; or, to express it differently, he is so constituted, 
that his direct or individual affections are stronger than his sympathetic 
or social affections. I intentionally avoid the expression, selfish feelings, 
as applicable to the former, because, as commonly used, it implies an un. 
usual excess of the individual over the social feelings, in the person to 
whom it is applied, and consequently something depraved and vicious. 

"But that constitution of our nature which makes us feel more in. 
tensely what affects us directly than what affects us indirectly through 
others, necessarily leads to conflict between individuals. Each, in conse- 
quence, has a greater regard for his own safety or happiness, than for the 
safety or happiness of others, and, where these come in opposition, is ready 
to sacrifice the interests of others to his own. And hence the tendency to 
a universal state of conflict between individual and individual ; accompa- 

* Lev., Chap. xiii. i Id., Chap, xviii. 


nied by the connected passions of suspicion, jealousy, anger, and revenge 
— followed by insolence, fraud, and cruelty, and, if not prevented by 
some controlling power, ending in a state of universal discord and con- 
fusion, destructive of the social State, and the ends for which it is 
ordained. This controlling power, wherever vested, or by whomsoever 
exercised, is government. 

"It follows, then, that government has its origin in this twofold consti- 
tution of our nature : the sympathetic or social feelings, constituting the 
remote, and the individual or direct, the proximate cause."* 

§ 18. Of the So-called Organic Nature of the State. 

As the State is but a certain kind of aggregation of men, it is clear that 
the nature of the State, as well as its genesis, is determined by, and must 
besought in the nature of individual man.(e) Proceeding on this piinciple, 
we investigated, in a preceding section, what we called the carinal origin, 
or, as it may be called, the genetic, or generating cause, of the State ; and 
this we have found to consist in certain traits of human nature, which 
may be called social, that irresistibly compel men to live in a State of 
society ; and hence, that the State is to be regarded as a natural phenome- 
non, that — given the existence of man — must necessarily exist. Which 
indeed might have been inferred from the term itself, which — according 
to the eiymology — signifies nothing more than a state, or condition of 
men. In like manner, we also investigated the causal origin of govern- 
ment ; which we found to consist in certain traits or tendencies of human 
nature (which may be called anti social), that render political organiza-. 
tion a necessary condition to the existence of society. In solving these 
problems, we have necessarily, to a certain extent, ascertained the nature 
of the Slate ; that is to say, we have ascertained it to be merely an autono- 
mous society of men, always existing under a political organization, or 
government; and from these propositions — meagre as they are — some 
negative inferences may be drawn, that will, at least, serve to dissipate 
more eSectually certain false notions of the nature of the State, already 
touched upon, and thus to preserve us from error. 

The Slate being a mere aggregation of men, living under certain condi- 
tions, cannot, strictly speaking, be said to have intellect, or conscience, 
or will, or consciousness, or power, either iu the sens6 of right or might, 
or any human quality, moral, mental, or physical ; nor can it be regarded 
as an actual individual being, or as having an actual independent exist- 
ence. Like other collective terms, such as army, church, family, gens, 
race, etc., the term denotes merely a certain number of human beings, 
aggregated in a certain way ; and hence, all human qualities and acts 
ascribed to the State, or to the government, are in reality merely qualities 

* Disquisition on Government, 5. This is justly described by Mr. Mill as " a posthumous 
work of great ability ;" and the author as " a mau who has displayed powers, as a spec- 
ulative political thinker, superior to any who has appeared in American politics since 
the authors of TIte Federalist" (Representative Government, p. 329). 


or acts of the individual men composing it, or of some one, or more of 
them. It is, for example, as impossible to conceive of a single will or 
conscience, made up of the wills of several individuals, as it is to conceive 
of a single man made up of several. The problem of the nature of the 
State, therefore, is simply the problem of the nature of the individual 
man in his social relations. 

Yet, such is the nature of men, when brought together in society, that 
a certain unanimity of moral judgment, and of opinion in general, and a 
corresponding unity of action, always result ; as is exhibited in every 
sphere of social life : in the family, in the associations of friendship, in 
general society, in business relations, and, finally, in the greater society 
we call the Slate. This unanimity, in a certain degree, is in fact essential 
to the social existence of men, and in this case, as in others, nature has 
provided for it by endowing men, more or less perfectly, with qualities 
necessary to produce it ; such as reason, and perhaps instinct, the atTec- 
tions, and benevolence generally, and justice, and especially the disposi- 
tion to conform to the general opinion and conduct of the community, or, 
in other words, to autliority and custom ; which are the instruments by 
which the intelligence and conscience of the community most effectually 
assert their authority. 

This tendency to unanimity of thought and action permeates all the 
different spheres of social life, from the family to the State inclusive ; and 
under its action there are developed, as it were, naturally and automat- 
ically, certain principles or rules of conduct, by which men are governed, 
and to which they voluntarily conform their conduct. Of this nature are 
the rules of society, the laws of fashion, the laws of honor, etc.; all of 
which strongly illustrate this natural tendency of mankind, in all spheres 
of society, to evolve involuntarily, and almost unconsciously, some com- 
mon standard of thought and action to which they voluntarily conform. 
But of this tendency the most conspicuous and important example is fur- 
nished by its operation in that largest of all social spheres — the State. And 
of this the results are threefold, viz.: as affecting questions (1) of justice, 
(3) of morality generally, and (3) of expediency and propriety ; with 
reference to each of which there is evolved, in every State, under the in- 
fluence of this natural tendency of men, a body of opinion and sentiment 
in which all, or nearly all, concur. Of these results the first constitutes — 
as we shall see — the Law or Positive Right of the State ; which in reality 
constitutes a part of Morality, but is distinguished from morality generally 
by the fact that it constitutes the principal and sole essential end of gov- 
ernment. The second constitutes the Fodtive Morality of the State ; and 
the third is what is commonly spoken of as Public Opinion; of which 
that which relates to political matters, or Political Opinion, mainly con- 
cerns us here. 

The nature of this consensus of moral convictions, the method of its 
genesis, its rightful authority, and the instrumentalities by which it is 
enforced, thougli a subject of fundamental importance in jurisprudence, 


and in politics generally, is too extensive to admit of adequate discussion 
here ; but the following brief statement of the principles applying to the 
subject will, perhaps, be sufficient for our present purpose. (/) There is in 
some way generated in every man, as it were, a code of moral convictions, 
or principles, by which, in ordinary cases, he instantaneously, and with- 
out reflection, judges his own actions and those of others to be right or 
wrong. There is also in every man a faculty — whether innate, or acquired, 
it is unnecessary here to inquire — by which he perceives the duty or moral 
necessity of conforming to the right ; and this conception is accompanied 
by sentiments of approbation or disapprobation with regard to his own 
actions and those of others, and with regard to the former, the sentiment 
of conscious rectitude or remorse. The combination of these moral con- 
victions, with the faculty of perceiving the duty of conforming to them, 
and the accompanying sentiments, together constitute what is called con- 
science — the existence of which, whatever diflference of opinion there may 
be as to its nature, cannot be denied. It is this which constitutes to every 
man the proper standard or test of right and wrong by which his conduct 
— at least with regard to matters concerning himself alone — is, or ought 
to be, governed. 

Men, however, acquire their moral convictions to a great extent from 
education and association with others ; or, in other words (as indicated 
by the etymology of the term " morality " and kindred terms), from cus- 
tom ; and this is to be regarded, not as accidental, but as the result of the 
law of his nature. Hence, every aggregation of people have a morality, 
to some extent, peculiar to themselves, and the moral principles of one 
age or nation are somewhat different from those of another. But under 
all these diversities there is always a substantial conformity with respect 
to fundamentals, and especially, in every nation or people, there is 
always a body of moral principles, universally or almost universally 
recognized, which becomes embodied in the language and habitual 
thoughts of the people, and wrought, as it were, into the conscience, 
o every individual. It is this which constitutes the positive or received 
morality (mores) or, as the Greeks call it, nomos, of a nation or people ; 
and it cannot be doubted that in all questions of common concern it 
should be held to be of paramount authority ; and this for three reasons. 
For, first, the positive morality of the present age is the result of the 
never-ending struggle of mankind to realize theoretical morality — a 
struggle to which, from the beginning of history, the highest intellect and 
conscience of the race, have been consecrated — and it, therefore, carries 
with it the strongest presumption of its truth ; secondly, no reason, 
except, where applicable, that of necessity, can be assigned why the con- 
science of one man or set of men should be forced upon others of different 
convictions ; and, hence, in political affairs, there is no alternative between 
the acceptance of this standard, or of submission to arbitrary power ; and 
hence, also, free government is possible only to the extent that this gen- 
eral conscience, or consensus of moral conviction, is developed ; and, 

PEOC. AMEK. PH. LOS. SOC. XXXIV. 148. 2 E. PRINTED OCT. 5, 1895. 


thirdly, men, as it were, by some instinct of their nature, in fact invol- 
untarily, accept and submit to this test as a standard of practical morality; 
for, as is well observed by Mill, "the customary morality, that which edu- 
cation and opinion have consecrated, is the only one that presents itself 
lo the mind with the feeling of being in itself obligatory." (g) 

All this is especially true with reference to that part of Morality that 
deals with Right, or, in other words. Jurisprudence — the peculiar matter 
with which government is concerned ; wilh reference to which it may be 
asserted that the general conscience or positive morality of the commu- 
nity is, in fact, ultimately, and in the long run, the paramount, predomi- 
nating political force in the civilized world ; that it is this alone that 
makes civilization possible ; and that in the superior development of the 
sentiment of rights is to be found the essential difference by which modern 
civilization is to be distinguished from that of the ancient world, and of 
mferior civilizations generally ; and finally, as in the past, that all future 
progress in political civilization must consist in the development and per- 
fectionment of this sentiment. 

Summarizing these results, it will be observed, that the genesis, the 
continued development, and the action of the State is, to a large extent, 
automatic ; but, not wholly so. The State must exist ; and so far, it may 
be said, its genesis, and its continued existence is a natural phenomenon ; 
and it may be said also that its gradual development is largely of the same 
character. But both in its original creation and subsequent development, 
conscious, human agency concurs, and with advancing civilization, in an 
increasing degree. So also, with regard to the conduct of the State, this, 
while to a large extent automatic, is, also, to a large extent, determined 
by conscious human agency. Hence, arises the obvious distinction be- 
tween the functions of the State that are automatically performed, or, 
more briefly, its automatic functions, and those that are performed by the 
conscious agency of men ; the latter of which may be called political — as 
being performed by government — and the former, non-political. 

Government, as we have observed, is, so far as our experience or obser- 
vation goes, an invariable element in the form of the State, or, in other 
words, the State has always manifested itself to us as politically organized; 
and this may be assumed, therefore, as its normal character. In this 
aspect, the State — i. e., the politically organized State — is to be regarded 
— as we have heretofore observed — simply as a large corporation, or body 
politic, differing in no essential particular from private corporations, ex- 
cept that it is not, as in other cases, merely the result of human volition, 
but to a large extent a natural growth, and, at least, to the extent of its 
existence, a natural and, therefore, a necessary phenomenon. Hence, we 
may regard the State, politically organized, as a fictitious, or imaginary 
person, or being ; and this conception will be found extremely conve- 
nient, and, provided we bear in mind that it is a pure fiction, also safe. 

Indeed, it is difficult, and perhaps impracticable, for us to dispense with 
this mode of expression. For it is impossible not to recognize, or at 


least, not to imagine we recognize, in this "our artificial man" — as 
Hobbes calls him — the familiar lineaments and qualiiies of an actual man, 
or to refrain from thinking and speaking of him accordingly. And to 
this usage, properly guarded, no objection can be made. For so numer- 
ous and striking are the resemblances, or rather the analogies, between 
the State and the individual man, that the most convenient, and there- 
fore the most natural, way of describing the qualities and actions of the 
former, is to apply to them the terms we use with reference to the latter. 
Accordingly this has become the settled upage of our own and other lan- 
guages, from which, even were it otherwise d'jsirable, it is now too late 
to depart. 

This usage is indeed in some respects extremely misleading and danger- 
ous ; but the same is true of language generallj^ ; throughout which the 
same method of expressing mental conceptions by terms originally appro- 
priate only to physical objects universally prevails ; and hence, out of 
such analogies, arises the wonderful power of fallacy — or, to be more 
accurate, the vion(\iiri\i\ fallacy -producing power — contained in words — a 
power unsuspected by the multitude, but recognized by all profound 
thinkers, and practically illustrated in the most conspicuous and stiikhig 
manner, by the justly distinguished writers we have reviewed ; and which 
we will, again and again, have occasion to observe in the further progress 
of our inquiries. But fortunately, against this power, it is practicable 
for us effectively to guard ourselves by simply observing, and always 
bearing in mind, where we use a word in a transferred sense, that it is 
with an essentially different meaning from that originally denoted ; and 
that the resemblance between the conceptions denoted respectively by 
the secondary and the original senses of the term is not a resemblance of 
essential nature, but a mere analogy ; which may be useful in suggesting, 
but is incapable of accurately expressing the conception denoted by 
the former. 

Hence we may, without impropriety, and, bearing in mind the above 
caution, without danger, apply this usage to the State, and speak of "its 
will," or "its conscience," as though it were a man ; and, indeed, in the 
present state of language, it is difficult otherwise to express ourselves. 
But in fact these expressions, taken literally, and all theories founded on 
their literal sense, are without signification, or, in other words, non- 
sensical. For both terms, and other terms expressing human qualities, 
are strictly relative, and imply, as a correlative, an actual human being 
in whom to exist. 

The two expressions commented upon — "the will of the State," 
and "the conscience of the State" — when rightly understood, are 
equally innocent, but it cannot be said that, in their actual influ- 
ence on political science, they have been equally innocuous. By the 
former is meant nothing more than the concurring wills of the indi- 
viduals, or of some of the individuals who possess the political power ; 
but it has been commonly understood in its literal sense, or non-sense, 


and, as we liave seen, has thus given rise to the equally nonsen- 
sical, but pernicious, doctrine of absolute sovereignty and other mis- 
leading notions. But the expression, "the conscience of the Slate," or 
the equivalent expression, " the conscience of the community," or — as I 
prefer to call it— the "general conscience," while perhaps equally 
misunderstood, is not susceptible of being perverted to evil uses; 
and, indeed, its literal sense so strongly suggests the actual fact or phe- 
nomenon to which it refers, and which it is designed to express— namely, 
the received or positive morality of the community — that its use has been 
almost purely beneficial. 

Hence — to conclude — while we may not say that the State is an 
*' organism," or an "organic being" — for this seems to assert, not as a 
convenient fiction, but as an actual fact, that the State is an animal — 
yet we may, without impropriety, say that it is organic in its nature — 
meaning thereby, tliat its genesis and development, though partly arti- 
ficial, are, to a large extent, natural, or governed by natural laws ; and 
that its functions, though partly performed by the conscious agency of 
the men intrusted with government, are also, to a large extent, automatic. 
And, indeed, I know of no other way to express, in brief terms, these 
conspicuous and important characteristics of the State. Only, in con- 
forming to this usage, it is always to be remembered that the organic 
nature of the State is sui gemris ; and especially that it is essentially 
difterent from that of an organism or living being ; with which it has 
nothing of essential nature in common. 

Thus defined, the proposition, lliat the State is organic in its nature, 
expresses a profound truth. For, though the State is organic oaly in the 
peculiar sense we have defined, and although, even in this sense, the pro- 
position is only partially true, yet it may be that, in some more advanced 
state of social civilization, it may become wholly so, and that the per- 
formance of the functions of the State may become wholly automatic 
and government be dispensed wi„h. 


(a) The advocates of the doctrine of governmental absolutism fully realize the truth of 
the observation of Rousseau, tliat " the strongest is not strong enough to continue always 
master, unless he transforms his power into a right .... and obedience into a duty " 
(Social Contract, Chap, iii) ; and that for this purpose no method is so efTeciive as the 
fallacy in question. 

(6) Supra, pp. 195, 193. See also Politics, by William W. Crane and Bernard Moses, Ph.D., 
Professor of Political Economy in the University of California ; who follow Bluntschli 
and Mulford in this definition. 

This use of the term "organism " and the adjective "organic" is purely metaphorical. 
Provided this be understood, there is no objection to this use of tlie terms, and tliey may 
perhaps be used with advantage, as is done by Krause to dlstinguisli what, as will be 
seen, I take to be the true theory of the nature of tlie State. In thus using the term, 
however, it must be understood that it is used in an entirely new sense, and one essentially 


different from that of the term "organism," as denoting animal and vegetable beings. 
This method of using the term is admirably illustrated by the sober, accurate and able 
Coiirs de Droit Naturel of Mr. Ahrens ; which is avowedly an exposition of The Organic 
Theory of Krause ; and in which the author is not misled by the associations of the term, 
nor indeed, except in one particular, by any of the prevailing delusions as to the nature 
of the State. With regard to the exception alluded to, Mr. Ahrens appears to be emanci- 
pated altogether from the prevailing doctrine of sovereignty, and admits that the power 
of the State is not only limited, but is also divisible in its practical application ; yet he 
adheres to the notion that it is indivisible in its source, namely, the State, which con- 
stitutes the national sovereignty {Coars de Droit Naturel, Vol. ii, pp. 359, 360). Bat this, 
as we have observed, is also a meaningless assertion. 

(c) Thus, one of the characteristics of the State alleged by Mr. Burgess is, that " the 
State is permanent ;" by which, from the context, it appears that he means to assert, 
either that it cannot, or that it ought not to be dissolved, otherwise than by natanil 
causes. "It does not lie," he says, "within the power of man to create it to-day and 
to destroy it to-morrow, as caprice may move liim." And the same notion is expressed 
by Dr. Mulford {The Ndtion, p. 6). But if reference be made to the fact, nothing has 
been more common in history than the dismemberment and destruction of nations by 
external foes, or even by the people of the State itself, and if to the right, it is difiicult to 
perceive any grounds upon which we can assert it to be universally true. That in 
general a State should not be disrupted, is an obvious proposition. But numerous cases 
have occurred in history in which it may be safely said that the State ought to have been 
dissolved. Thus, the Roman empire was in fact formally. dissolved upon the partition 
of the east and the west by Arcadius and Honorius, and it is very probable that, had this 
partition been deliberately made a hundred years before, good results would have fol- 
lowed. And, indeed, it is not unreasonable to suppose that in the decadence of the 
Roman empire, after its great work had been accomplished, it would have been for the 
interests of the human race had a more general partition taken place, as for instance, in 
the west, between Italy and the western provinces, and in the east, between the 
European and Asiatic provinces. And it is certainly to be hoped that at least one great 
State of modern times (I refer to Russia) may, at some future period, be dissolved, as 
otherwise, sooner or later, it will dominate the world. 

Other instances of faulty definition, though of less importance, are the following : 
Sidgwick defines the State, as "a body of human beings deriving its corporate unity 
from the fact that its members acknowledge permanent obedience to the same govern- 
ment, vvhich represents the society in its collective capacity, and ought to aim in all its 
actions at the promotion of their common interests " (Elements of Politics, pp. 211, 212). The 
last clause, though perhaps true, is not appropriate to a definition, but is to be established 
by an investigation of the principles of jurisprudence. 

Similar faults are also presented by the following definitions ; all of thsm by approved 

" A State, in the meaning of public law, is a complete, or self-sufficient body of persons 
united together in one community, for the defense of their rights, and to do right to 
foreigners" (Bynkershock, N. J. Pub., Bk. i. Chap. xvii). 

" The State (civitas) is a perfect (that is, independent) collection of free men associated, 
for the sake of enjoying the advantages of right or justice, and for common utility " {Grotius, 
Bk. i. Sec. 14). 

" Nations or States are bodies politic, societies of men united together to procure their 
mutual safety and advantage by means of their union "' ( Vattel, Introduction, Sec. 1 ). 

"The State (is to be regarded) as an association /or the purpose of establishing right " 
(Como la sociedad para derecho) (Krause, The Ideal of Humanity, Trans, of Sauz. del 
Rio, p. 48). 

In all of these definitions the end or duty of the State to provide for the rights and for 
the welfare of its citizens, is inserted as an element of the definition, to which it is not 
appropriate. What is the true end or fun tion of the State, is, indeed, an important 
question, and I do not say that it is not here correctly stated, but to insert it in the defi- 
nition makes the definition in fact false. For States are formed either by natural causes 


existing in the nature of man, inevitably driving him into society, or by force or 
violence, exercised by men at least with the predominant motive of advancing their ov?n 

Again, the definition of Cicero {Republic, Bk. i, Sec. 25) is also objectionable: "The 
State {respublica) is the collection of a multitude associated by a common sense of right and 
a community of inierei-ts." 

A common sense of right and a community of interests generally result from the 
establishment of a State ; but even if this proposition were universally true, it would not 
be appropriate to tlae definition. And, indeed, a State may exist with little or no " com- 
mon sense of right," or "community of interests," as for instance, the great Asiatic 
despotisms, and perhaps many European empires. 

The definition of Aristotle, who defines a State or city to be "a certain number of 
citizens " {Politics, Bk ii. Chap, i), and that of Austin wlio defines it " as an independent 
political society " (Jicr., p. 219), are both free from objection, at least in this respect. 

(rf) " In American Constitutional Law, there is a division of the powers of sovereignty 
between the national and State governments by subjects ; the former being possessed of 
supreme, absolute and uncontrollable power over certain subjects throughout all the 
States and Territories, while the latter have the like complete power, within their respec- 
tive territorial limits, over other subjects." — Cooley, Constitutional Limitations, p. 2. 

" In the case now to be determined, the defendant (in error), a sovereign State, denies 

the obligation of a law enacted by the Legislature of the Union (p. 400) Thegov- 

ernmeut of the Union, though limited in its powers, is supreme within its sphere of action 

(405) (Bat) Should Congress, under the pretext of executing its powers, pass 

laws for tlie accomplishment of objects not intrusted to the government, it would become 
the painful duty of this tribunal, should a case requiring such a decision come before it, 
to say such an act was not the law of the land (425) 

" The sovereignty of a State extends to everything which exists by its own authority, 
or is introduced by its permission ; but does it extend to those means which are employed 
by Congress to carry into execution powers conferred upon that body by the people of 
the United States? We think it demonstrably does not" (429,.— Marshall, C. J., 4 Wheat., 

" 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 these 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 necessa- 
rily be, which is the paramount law? And that must depend upon the supremacy of 
the power by which it was enacted. The federal government is supreme in the exercise 
of powers delegated to it. but beyond this its acts are unconstitutional and void. So the 
acts of the States are void when they do that which is inhibited to them, or exercise a 
power which they have exclusively delegated to the federal government." — License 
Cases, 5 Howard, 588. 

"Although the State of Wisconsin is sovereign within its territorial limits to a certain 
extent, yet that sovereignty is limited and restricted by the Constitution of the United 
States, and the powers of tlie general government, and of the State, although both exist 
and are exercised within the same territorial limits, are yet separate and distinct sover- 
eignties, acting separately and independe-itly of each other, within their respective 
spheres."— Ableraan vs. Booth, 21 How., 516. 

(e) This is well explained by Mr. Ahrens : 

" Before him (Aristotle) Plato seized still more profoundly the intimate relation 
between the man and the State, when he conceived the order of right, as above all, an 
order which each man ought first to realize in his own internal nature, of which society 
is always more or less a reflection. For this reason Plato saw in each man a State in 
miniature ('micropolis '), as he saw in society man enlarged ('writ large'). The same 

opinion is professed by Krause The State, without doubt, .... must always be, 

in its organization, and in the forces and modes of its activity, the mirror of the interior 


and moral state of its members, of the condition, more or less elevated, of their intelli- 
gence, of the sentiments and motives with which they are inspired in their actions. As 
Christ said : 'The kingdom of God is within you ;' Plato and Krause say : The State, 
which ought to realize the divine idea of right, is originally iu you" {Cours de Droit 
Naturel, g 105). 

(/) For this subject the term Nomology, or the science of Nomos, or positive morality 
(mores), would be an appropriate name. It would treat of both the theory, and the 
natural history, the mode of genesis, and existing state of positive morality, and of its 
relation to theoretical morality. 

(g) " There can be no democratic State, unless the mass of the population of a given 
State have attained a consensus of opinion m reference to rights and wrongs, in reference 
to government and liberty." There must be a "common custom, and a common con- 
sciousness of rights and wrongs" (Burgess, Political Science, Vol. i, pp. 81, 82). It will be 
observed that all modern European States are regarded by Mr. Burgess as democratic. 

Of the Functions of the State Generally. 

§ 19. Of the Relation Betaeen the Functions, and the Rights of the State. 

The end of the State, as we have observed, is not only to insure the 
safety and peace of the individuals that compose it ; it extends also to 
the promotion of their welfare in other ways. IJut this end, as we have 
seen, is accomplished, not by means of government exclusively, but also, 
and perhaps chiefly, by individual action, and the natural influences of 
society upon men. The functions of the State are, therefore, to be 
divided into two classes essentially diff'erent from each other, viz., the 
automatic or non-political functions, and the political functions, or func- 
tions of government. The former constitute a subject of great impor- 
tance, which we have already touched upon and will again refer to ; but 
in the present chapter, we will confine our attention to the political, or 
governmental functions of the Stale, only ; and as these are all exercised 
by the government, we may, with regard to them, use the term govern- 
ment, instead of State ; which will be found to be the most convenient 
form of expression. 

By the expression, the functions of the government, or the political 
functions of the State, is meant simply the duties of the government, con- 
sidered generally, or, in other words, tlie modes in which the powers or 
rights of the government ought to be exercised. The relation existing be- 
tween the functions and the rights of the government is, therefore, obvious. 
The government is rightfully vested with all the powers necessary to the 
efiicient performance of its functions, and the extent of its rights is to be 
determined by this necessity. On the other hand, the exercise of any 
function by the government is the assertion of an assumed right, and can 
be justified only by establishing the right. The question of function and 
the question oi right are, therefore, so closely implicated that the one can- 
not well be considered without touching upon the other. 

The two questions, however, are not to be considered as identical ; for 
obviously the rights of the government are more extensive than its func- 
tions ; for the functions, or duties of the government, under diflerent cir- 
cumstances, are infinitely various, diflicult to determine and admitting of 
great variety in the mode and means of performance ; and hence, to 
enable the government to perform them, there must be vested in it 
the power, or right, to determine what its duties are, and the times, modes 
and means by which they shall be performed. And, while it is the duty, 
or function, of the government to act wisely, and with the single view to 
the good of the people, yet, obviously, the power to decide necessarily 



implies the power to decide erroneously, or even dishonestly. For the 
question here is, as to the extent of the power with which it is necessary 
to vest the government, in order that it may be able to perform its func- 
tions efficiently ; and when the extent of its power or right is thus deter- 
mined, no act of the government within the limit of its right, can be held 
unlawful, however erroneous in fact, or criminal of intent, it may be. 

Thus — to make use of an illustration already used — it is the function of 
the judge to administer justice ; but his jurisdiction, or power, is "to 
hear and determine the subject in controversy ;"* and this obviously im- 
plies the power, or right, to decide erroneously, and even unjustly. 
Hence, judgments depend for their validity, not upon their being correct, 
but simply upon the jurisdiction, or right of the court, to determine the 
cause. Hence, it has been wittily and truly said, referring to the defini- 
tion of jurisdiction, "as power to hear and determine," that, "it is in 
truth the power to do both, or either — to hear without determining, or to 
determine without hearing."! In the same way, the validity of all the 
acts of government, like that of the acts of private individuals, is to be 
determined, not by the wisdom of the act, or by the motives of the actor, 
but by the single consideration whether it is within its right. If so, it is 
valid, however mistaken or wicked it may be. 

The distinction between the question of function and the question of 
right is also illustrated by the discussion that has arisen with reference to 
the provision of the late Democratic platform, declaring the protective 
policy of the government to be unconstitutional. Conflicting opinions 
on this point, from a Democratic point of view, may be reconciled by say- 
ing that this policy is within the right, but outside of the function of the 
federal government ; and, therefore, that it is unconstitutional, as not 
being the exercise of a constitutional function ; but constitutional, as 
being the exercise of a constitutional right. 

§ 20. Of the Essential Functions of Oovernment. 

The functions of government are necessarily determined by its nature 
and end, and this, again, by the principles or qualities of human nature, 
which give rise to the necessity of government, and which thus consti- 
tute its raison d'etre, or the cause of its genesis and continued exist- 
ence. This subject was considered in the last chapter, and it was there 
shown at length that this cause, or reason for the existence of govern- 
ment, is the tendency of men to commit injustice, and the consequent 
necessity of government, or organized political force, in order to secure 
to individuals immunity from injustice ; and hence, in the language of 
Cousin: "Government, in principle at least, is precisely what Pascal 
desired — ^justice armed with force." Hence, the principal end of govern- 
ment — to use the language of the Constitution of the United States — is, 
" to establish justice," or, in other words, to protect the rights of indi- 

*R. I. vs. Mass., 12 Pet., 657-717. 
t Bennett's Case, 44 Cat., 88. 



viduals from aggression, either foreign or domestic. And this is its sole 
essential end ; for all other ends of society can be more or less perfectly 
attained without political interference, (a) But obviously this function in- 
cludes numerous others ; as, for instance, tlxe function of organizing and 
administering a government, and of maintaining it against attacks, from 
without or within, and, as consequent upon this, the functions of tt^xa- 
tion, judicature, legislation, punishment and many others. All of these 
are essentially necessary, either directly or indirectly, to the exercise of 
the function of maintaining justice and therefore to be admitted. 

§ 21. Of Other Functions of the State and of the Several Theories with 
Reference Thereto. 

Whether, in addition to the maintenance of justice and the several 
functions therein involved — which may be called its essential functions — 
government has other functions, is an important question, and one upon 
which there is much difference of opinion. On the one hand, it is 
asserted that the functions of the State are strictly limited to the realiza- 
tion of right or justice ; on the other, that they extend to the promotion 
of the happiness or welfare of the community in every way. The former 
of these theories is variously designated as the doctrine of Inissez faire, 
laissez passer, or laissez aller, and has latterl3% I believe, by Mr. Huxley, 
been nick- named administrative Niliilism; the latter may be called the 
utilitarian doctrine. Between these two theories, as extremes, there are 
several others, which, while according to the State more extensive func- 
tions than the former, yet assign a well-defined limit to State inter- 
ference. Of these, two maybe distinguished : The one regards the main- 
tenance of justice as the essential end of government, and the per- 
formance of this function as a Imiitation on its other functions, with- 
out assigning any other limit : The other regards it as the proper 
function of government also to supervise, protect, encourage and direct, 
the natural development of man and society. The former is the practi- 
cal view commonly taken by the jurists, and may, therefore, without im- 
propriety, be called the juristic theory of political functions ; the latter, 
from the fact that it regards the State— in the sense explained in the last 
chapter — as organic in its nature, has been called, though not with strict 
propriety, the organic theory of the State. These several theories will be 
discussed in the order in which they have been named. 

§23. Of the Laissez Faire Doctrine. 

Of the first tlieory — the laissez faire, or let alone doctrine — the most 
conspicuous representative is Mr. Herbert Spencer, whose works have 
made the subject so familiar in this country and England as to dispense 
with the necessity of treating it here at length. (6) His position is thus 
admirably stated in one of his latest works : 

"Whether, in the absence of war, a government has, or has not any- 


thing more to do than this ii e , to maintain justice), it is clear that it has 
to do this. And by implication, it is clear that it is not permissible to do 
anything which hinders the doing of this." This, it will be observed, is, 
so far, a precise statement of what we have called the juristic doctrine. 

"Hence, the question of limits becomes the question whether, beyond 
maintaining justice, the State can do anything else without transgressing 
justice. On consideration, we shall find that it cannot."* 

Three arguments are urged in support of this position, which are drawn 
(1) from the nature of the State,f (2) from the imperfection of political 
instrumenialities, :]: and (3) from the demoralizing influence of govern- 
mental interference on private character^ 

With the last two arguments, so far as they go, I entirely concur. 
Thus, with regard to the last, it cannot be doubted that the progress of 
individuals and of society is, in the main, the product of individual energy 
and voluntary cooperation, and that these forces operate most efHciently 
in a state of liberty ; nor can it be doubled that the virtues, intellectual 
and moral, by which this progress is eflFected, must necessarily be more or 
less deteriorated by the assumption of unnecessary functions by the gov- 
ernment, and the consequent disuse of such functions, by individuals 
and voluntary associations. And this is especially manifest with regard 
to the capacity for private cooperation ; which, in the view of the most 
sober and profound thinkers, must constitute the principal instrumentality 
in the development of civilization ; and which, it is not extravagant to 
hope, may, in the end, take the place of government in the performance 
of all but its absolutely essential functions. 

With regard to the second argument— namely, the argument from the 
imperfection ot political instrumentality— the reasoning is even more con- 
clusive ; for, whatever view we may take of the extent of the functions 
of government, it is obvious that we must always consider, not only the 
legitimacy of the end, but also the efficiency of the means by which it is 
to be attained ; and, hence, that no functions should be undertaken, except 
those absolutely essential, until an efficient instrumentality for its per- 
formance can be obtained. Nor is there any proposition more entirely 
demonstrated by liistorical experience than that the political agencies 
with which we have hitherto had to deal are utterly and entirely incom- 
petent for the purpose, on account of the dishonesty, and, still more, the 
ignorance, of government officials. It is also, as we have observed, a 
fact of fundamental importance that the only efficient means we have of 
directing and controlling the government is public opinion, and especially 
that form of it whicli constitutes the positive morality of the commu- 
nity. Hence, it is evident, the only hope of an improvement in political 
organization, and in the cliaracter of political rulers, lies in an enlightened 
public opinion. But this, at the present time, and not less in this coun- 
try than in others, is, with regard to political matters, lacking, in the 
highest degree, both in honesty and in knowledge. We need, therefore, 

* Justice, t Id., Sec. 121. J Id., Sec. 123, et seq. § Id., Sec. 135, et scq. 


as an essential condition to the enlargement of the functions of govern- 
ment, a cultivation of political science in all its departments ; and until 
this takes place, and public opinion is thereby enlightened and by this, 
or otlier means, an improved political organization, and a moderate degree 
of honesty and intelligence in our public officials obtained, all thought of 
governmental interference, beyond cases of the strictest necessity, should 
be abandoned. 

Hitherto, nearly all the interferences of government with individual 
action, beyond what were essentially necessary, have been, if not in their 
end, at least in their execution, altogether unjustifiable, and such inter- 
ferences have been, and are the source of more human misery and un- 
happiness than almost any other cause. So that, in fact, instead of regard- 
ing the present condition of things as being the result of a hmsez faire 
policy — as is commonly asserted by those who favor an extension of the 
functions of the State — the opposite is true, and it must be regarded 
largely as the result of such undue interferences by the government. The 
advocates of the laissez faire doctrine may, therefore, justly claim that 
before any argument against it can be drawn from experience, we must 
first give the policy a fair trial by divesting the government of unneces- 
sary functions ; and, undeT this view of the matter, those who are 
opposed to governmental action beyond the demands of necessity may, 
without shame, accept the name applied to them by Huxley, and, with 
Prof. Sumner, regard themselves, to this extent, as Niliilists. (c) 

But just here, a great and almost insurmountable difficulty presents 
itself ; the existence of which constitutes one of the most serious argu- 
ments against undue governmental interference. For it is a fact, as un- 
doubted as it is unfortunate, that whenever a policy is once adopted, how- 
ever unjust and detrimental to the public interests it may be, it generates 
immediately a host of private interests, by which it is so buttressed and 
defended as, in general, to make it almost impregnable. Of tliis, a thou- 
sand illustrations might be given, but, as in every case there has been de- 
veloped a strong and interested public opinion, the illustrations would 
simply have the effect of prejudicing the minds of many readers against 
the principle itself, and will, tlierefore, be dispensed with. The reader 
may, however, readily find sufficient illustration in the opinions of his 
political opponents. 

The doctrine of laissez faire must, therefore, I think, with reference to 
the existing state of things, be regarded as practically established ; and to 
those who would deny it, we may say, with Oxenstiern : " Nescis, mi 
fili, quam parva sapientia regitur mundus." (d) 

But while this doctrine, as a practical maxim, is, for the present, to be 
accepted, this cannot be said of it as a universal theory, true of the future, 
as of the past. Nor is the argument of Mr. Spencer on this point at all 
conclusive. His conclusion, as we have seen, is lliat the Stale cannot do 
anything beyond maintaining justice, "without transgressing justice ;" 
and the argument is, that, in going beyond its function of maintaining 


justice, tlie State must do this, "in one, or both, of two ways, which, 
severally or jointly, reverse its duty." 

Of these, the first consists of cases in which the State restrains "the 
freedom of some individuals more than is required by maintenance of the 
like freedom of other individuals." And these cases "are themselves 
breaches of the law of equal freedom." This, indeed, is obviously a 
legitimate application of "the law of equal freedom," but that law itself 
— as will be shown more fully liereatter — cannot be maintained ; for 
there are obviously cases, as, for instance, those of minors, and persons 
non compotes, in which interference by the State, though in violation of 
the law of equal freedom, is not only proper, but obviously essential. 

The other argument is, that taxation is itself a diminution of freedom, 
and, except where required for the necessities of the government, there- 
fore unjust ; and to this proposition we think there can be no reply. But 
the question of the extent of the legitimate necessities of the government 
is the very question at issue, and it cannot be assumed that they are lim- 
ited merely to the essential function of maintaining justice ; but, as I will 
attempt to show, they are more extensive. Nor does the argument apply 
to those resources of the government which are not acquired by taxation 
— as, for instance, the public lands oi the State, and property acquired by 
esclieat, and also property acquired by gift : with reference to which, or 
at least to the last, no question can be made. This mode of acquisition 
by the State — i. e., by gift — will, indeed, probably be regarded as insigni- 
ficant ; but such is by no means the rase. All the immense property 
devised or given to public charity is, in fact, given to the State, and is 
ultimaleiy subject to its disposition ; and it is extremely probable that, by 
an encouragement of the natural disposition of men, under certain circum- 
stances, to leave their property for public uses, or charity, this source of 
acquisition might be rendered enormously prolific. For, at all times, there 
is a certain percentage of men, who, either from feelings of duty, desire to 
devote their wealth, or some part of if, to the good of their fellow-men, 
or who have no other objects to which they desire to devote it ; and I do 
not think it can be doubted that, if there were an efficient department of 
the government to take charge of such bequests, and gifts, and to devote 
them to the public good, either generally, or in reasonable accordance 
with the will of the donor, such bequests would enormously increase. 

This is, in fact, shown by the great acquisitions of the Church, prior to 
the statutes of mortmain, and also, by the large sums that have otherwise 
been devoted to charities of various kinds. Hencp, I regard it as proba- 
ble, that a never-dying corporation like the State could, in this way, if 
desirable, acquire property to an almost unlimited extent, and that the 
disposition of men would, in this respect, have to be curbed rather than 
encouraged. The real difl^culty is that, under existing circumstances, it 
could not be hoped that such resources would be wisely and efficiently 


§23. Of the Utilitarian Doctrine. 

The Utilitarian doctrine is formulated in the proposition that the func- 
tions of government extend to the promotion of the happiness or welfare 
of the community generally. The proposition is a very specious one, and 
calculated to mislead. In elfect, it consists of two propositions : (1) the 
Utilitarian principle generally, as the fundamental principle of Morality ; 
and (2) the inference from it that the welfare of the community may be 
subserved by governmental interference, whenever deemed expedient. 

The general principle will be considered hereafter, and it will be shown 
that it is not only false, but also so indefinite as to be of no practical use 
as a standard of conduct. But for the present — for the sake of the argu- 
ment — we may accept it as true, and consider only the inference from it. 

It is to be admitted that the ultimate end of the State is to promote the 
welfare of the community ; by which is to be understood, the welfare of 
the individuals of the community, and of all of them. But — as we have 
seen — this end is accomplished, not merely by the instrumentality of 
government, but also and chiefly by the free action of men, controlled 
and modified by the natural influences of society upon them ; and hence, 
the action of government is but one of the means by which the ultimate 
end of the State is to be accomplished. And it is equally clear, with 
regard to the governmental functions of the State, that the fundamental 
rule, by which their exercise should be determined, is that justice is to be 
observed ; for this, of all conditions, is most imperatively demanded by 
a just regard to the welfare of the State, and of all its members. Hence, 
the real questions involved are, not as to the ultimate end of the State, 
or of the government — as the theory would seem to imply — but (1) 
whether there should be governmental interference with natural pro- 
cesses operating efficiently, or, in other words, with the automatic func- 
tions of the State, and (2) whether the welfare of the community can 
ever be subserved by violating justice. 

To both of these questions, the answer is clear : 

The most obvious dictates of the principle of Utility, as of all other 
theories of justice, demand : (1) that there should be no unnecessary 
governmental interference with the liberty or free action of men, either 
individually or in the aggregate; and, consequently, the development 
and conduct of the State, as well as of the individual, should be left, as 
far as practicable, to the operation of natural causes ; and (2) that the 
observance of justice is the fundamental condition of social well-being, 
and its violation always pernicious. 

Accepting these qualifications, the theory becomes identical with the 
juristic theory, next to be considered. But, in fact, these qualifications 
are ignored by the Utilitarians ; the vice of whose system is in ignoring, 
and, in effect, even in denying the existence of justice. 

§ 24. Of the Juristic Doctrine. 
We come next to what we have called the juristic theory of the func- 
tions of the government ; which is, that the maintenance of right or jus- 


tice is an essential function of government, and its performance, a limi- 
tation on its other functions ; in other words, that it is not permissible for 
the government to do anything that is inconsistent with justice. 

More specially, the principle, and the grounds upon which it rests, may 
be stated in the following three proposition? : 

(1) There is always a presumption in favor of liberty, which rests upon 
the principle that the healtliy development, and consequent welfare of 
man, considered either individually or collectively as a State, can, in gen- 
eral, be secured only by leaving his development to natural processes, 
and hence that in every particular case, the presumption is against gov- 
ernmental interference, and the burden ot proof upon him who asserts 
its propriety. 

(2) In order to secure the liberty or freedom of action essential to the 
health}' development and well-being of man, the State must interfere by 
governmental action, so far as may be necessary for the purpose ; and 
hence, it is the essential function of government to maintain justice. 

(3) It follows, as a corollary of the last proposition, that the perform- 
ance of the function of maintaining justice (which constitutes the raison 
d'etre of government, and the condition of its existence), is a limitation 
on its other functions ; and that no other function can be admitted that is 
inconsistent with this. 

§ 25. Of the Organic Theory of the Functions of Oovernment. 

These propositions, however, do not establish the negative proposition 
of Spencer and others, that the functions of the State do not extend 
beyond the function of maintaining justice ; and it remains, therefore, to 
consider the affirmative of this proposition. 

On this point, as we have said, it cannot be denied that the ultimate 
end of the State is the welfare or well-being of the individuals — including 
future generations — that compose it. But this end can be effected only 
by means of society — which is as essential to the welfare of each individ- 
ual as food or raiment or shelter — and, in general, only by the perfect 
freedom of its action. The government may, indeed, with the resources 
of the Stat?, assist this or that individual or class of individuals, and thus 
add to the fortunes and perhaps to the happiness of sucii individual or 
class ; but, as all its rights are held in trust for, and in fact belong to the 
whole community, it cannot legitimately or justly do this, except to the 
extent that the interests or the obligations of the whole community may 
require it. Hence, it may be said that the ultimate end of government is 
merely to maintain the healthy existence and development of society. 

To this end, as we have seen, it is an essential condition that justice 
should be observed ; but justice itself is perhaps but a corollary from a 
higher principle; namely, that the aummum bonum , or greatest good of 
man, is the perfect and harmonious development and exercise of his facul- 
ties ; and that his nature is such that the principal instrumentality of such 
development must consist in individual liberty, operating freely under 


the natural aad fructifying influences of society. From which it must be 
inferred that justice — which is but the maintenance of the rights or just 
liberty of the individual — demands that the largest liberty should be 
accorded to him that is compatible with the highest development of all, 
and no more, (e) 

Hence, we may say, that justice, though the immediate and direct end 
of the State, is but subsidiary and subordinate to its ultimate end ; which 
is the maintenance and healthy development of society, iu its highest 
form. (/) 

The genesis of society, as of the individual, is natural and spontaneous. 
Men naturally and inevitably place themselves, or are placed, in social 
groups, such as the family, the village, town, or city, or neighborhood ; 
and in mauy other kinds of associations, whether incorporated or other- 
wise, such as churches, schools, colleges, and associations for friendship, 
charity, business and other purposes, and finally in the State and in the 
world community of civilized nations ; to which is to be added that great 
society of the living and the dead, of which literature makes us members. 
By tlie influence of these associations, the manners, beliefs, tastes, aspi- 
rations, ideals, and ambitions, and consequently the character, career and 
fortunes of the individual are to a large extent determined. So that it 
may be said, without much exaggeration, that the modern man is almost 
wholly the product of ihe social influences to which he has been sub- 
jected, and that it is these alone that have difTereniiated him from the 
primitive savage. 

The development of the society which we call the State, like that of 
the individual, is also in the main spontaneous, being determined by the 
resultant of the characters of its individual members, and subordinate 
social groups, by the influence of other States,and by its own history. If 
we regard it (as, for the sake of illustration we may — though such analo- 
gies are dangerous), as a body politic, or fictitious or imaginary person, it 
may be said that its growth, like that of the individual man, is natural 
and organic, and that undue interference with its natural development 
must result in death or disease ; and hence, in general, the function of 
government is merely to protect it from interference by force or fraud. 

But the State, like the individual, is subject to evil influences, intellec- 
tual, moral, and physical, by which its opinions are vitiated, its morality 
corrupted, and its health deteriorated ; among which often the most serious 
is the evil influence of its own government. The result is, that it often 
loses the capacity for healthful development, either wholly — as in the 
later Roman Empire, and in Turkey, Ciiina, India and Asiatic countries 
generally — or partially — as is generally more or less the case with our- 
selves and other European peoples. Here, then, it seems to be an obvi- 
ous function of government, not only to remove the e\il influences which 
liave caused the disease, but also, if possible, to cure the disease itself, by 
directing and encouraging the social progress ; nor does it seem less appa- 
rent that it is also its function to check in the beginning any tendency to 


evil, before the consequences have become disastrous. Hence, we may 
Conclude that it is the function of government to supervise the develop- 
ment of society, check its evil tendencies, and when necessary — though 
the performance of the function is a delicate one — to direct and encourage 
its healthy progress. For the exercise of this function is not merely for 
the benefit of this or that individual or class, but is essential to the welfare 
of every individual of the community. But it is to be understood that 
this function does not extend to the interference with the development of 
society, or of the individual, unless demanded by necessity ; that is to 
say, the government should interfere only so far as absolutely essential to 
its healthful existence and development, {g) 

g 36. Illustrations of This Principle.] 

The application of the above principles may be illustrated by reference 
to the numerous familiar cases of State interference, which have of late 
years been so warmly discussed ; such as public education, the encourage- 
ment of literature and the arts, the supervision of the public morality, 
the regulation of railroad corporations and of monopolies generally, and 
public improvements, etc., to some of which we will briefly refer. All of 
these, it will be seen, may in theory be justified by the principles we have 
laid down ; but it will also be seen that these principles are in general 
violated in the practical exercise of the governmental tunclion. 

With regard to education, it cannot be doubted that, to a certain ex- 
tent, and for specific purposes, it comes within the function of the gov- 
ernment. This is clear enough with reference to the education of mili- 
tarj' and naval oflicers, and also that of soldiers and sailors generally. 
Hence, the fishery bounties allowed by the United States Government 
were, at one time., a legitimate exercise of governmental power, as tend- 
ing to produce a supply of seamen for the navy in time of war. And on 
the same ground, the money expended by the United States Government 
for the encouragement and education of militia organizations is an equally 
legitimate expenditure. And the same principle might perhaps with 
advantage be applied, as in France, to the education of young men witli 
a view of providing material for the civil service. Indeed, with regard 
to one branch of the civil service, the exercise of this function by the 
government of the United States is imperatively demanded l)y the neces- 
sities of our situation — namely, the diplomatic service — the efficiency of 
which is such as frequently to put us in a humiliating condition in our 
intercourse with foreign nations, and is likely, at any time, to involve us 
in great difficulties and dangers. 

Another case where government interference is demanded is for the edu- 
cation of lawyers. So far as the lawyers themselves are concerned, they 
seem to get along very well with the imperfect education of the present 
day ; and it may be said that often a thorough and scientific knowledge 
of the law may operate to their disadvantage by putting them out of touch 



■with their professional brethren and the judges ; but, unquestionably, the 
interests, not only of litigants, but of society generally, are injuriously 
affected by the lack of such education. So that, with regard to the for- 
mer, it may not be extravagant to say that the license of the average law- 
yer is to be likened, as it were, to a letter of mark, authorizing him to prey 
upon mankind. And with regard to society, it cannot be doubted that 
the efficient administration of justice, for which thoroughly educated 
jurists are required, is essential to the preservation of the positive moral- 
ity of the people, which is in fact the life of civilization ; and that the in- 
efficient performance of the judicial functions is of all other causes of 
demoralization the strongest and most irresistible. 

On the same grounds, also, it is evident that it is a legitimate function 
of the government to encourage education in political science ; for this 
branch of literature is so unremunerative, that, without such encourage- 
ment, it must continue to be, as it has been, neglected. So, too, with 
regard to citizens generally, it is necessary and therefore legitimate for 
the government, by the judicious supervision of education, and, when 
necessary, by affirmative help, to provide lor their education in such 
points as may be necessary to fit them for their political functions ; 
and this includes, undoubtedly, as an essential condition, instruction at 
least in the primary branches of education. But beyond this, and per- 
haps some similar cases that I have overlooked, no satisfactory grounds 
can be assigned for the further extension of the functions of the govern- 
ment in this direction ; and it is therefore difficult to conceive of any 
principle upon which to justify the American theory of public education, 
which aims to absorb the whole of education, and whose object is con- 
ceived to be the good of the individual student. 

The same considerations apply to the encouragement of literature ; 
whicii it is the legitimate function of the State to encourage so far as 
necessity may demand ; as is the case with reference to political and 
moral science, and also philosophy generally. For in this branch of lit- 
erature, even if we may count upon a few high spirits, who, at the sacri- 
fice of their worldly interests, may devote themselves to it, we cannot 
count upon theii finding readers, or sufficient remuneration for their ser- 
vices to keep them alive. But this object is not at all effected by the 
copyright laws, whose effect is rather to submerge the productions of 
solid thought under a flood of shallow and unprofitable matter, which, 
in the mass, cannot be said to conduce in any way to the welfare of so- 
ciety. Iq this, I am no doubt singular ; for even Mr. Spencer, and other 
administrative nihilists, justify this policy, not, indeed, on the ground of 
its being conducive to the interests of society, but on the principle of the 
author's supposed right of property in his work — a principle which, it 
seems to me, is altogether without justification. For the supposed right, 
as has been uniformly held by our courts, has no analogy whatever to the 
right of property, and cannot be regarded in any other light than that 
of a mere monopoly. 


So, with regard to public libraries, it cannot be doubted that they can 
be made one of the most efficient means of educating the people ; but as 
conducted, they serve only for their amusement, and are therefore illegiti- 
mate. The remedy, however, is very simple ; it is rigidly to exclude all 
books except such as may serve for instruction ; or, to adopt a rough 
criterion, to exclude, with some extremely limited exceptions, all novels 
-and light literature. This would reduce the cost of administration per- 
haps tenfold, and would make it practicable to secure a fair collection of 
solid works. In these observations, I, of course, do not refer to the great 
public libraries of the world ; whose main object is to preserve literature. 

The same observation is true, also, with regard to patent rights, the 
effect of which, instead of being conducive to the welfare of society, has 
been to divert the genius of men to matters merely material, to the exclu- 
sion of the higher thought which the moral and intellectual progress of 
mankind demands. Hence, though I do not doubt it is the function 
of the State in certain cases to encourage inventions, I am far from the 
opinion that the exercise of this function in the manner in which it has 
been exercised has been judicious. 

The functions of the government also undoubtedly extend to the pro- 
tection, and, in proper cases, to the encouragement of the positive or re- 
ceived morality of the people ; in which, it cannot be too often said, the 
life of the community consists, and which is but another name for its 
civilization. For no fact appears more manifestly on the pages of his- 
tory than that civilization progesses only when the political morality of 
the people, to which private morality is essential, is in a healthy state, 
and that with the degeneracy of its morality the national life becomes 
extinct. This is illustrated by the communities of Greece, and by the 
Roman republic, and by all countries of which we have had any account ; 
and it may be taken, empirically, as a law of human development. 

The mode in which this function shall be performed is another ques- 
tion. Generally, the true policy is non-interference ; but where a ten- 
dency to demoralization manifests itself, it is the function of government 
to remove it ; nor do I doubt that in proper cases it is equally its func- 
tion to encourage virtuous action, and especially virtuous political action, 
in its citizens. But as to the practical exercise of the function, it must be 
confessed that the most formidable source of demoralization has been the 
example set by the dishonesty of public officials, and by the government 
itself when acting under the pressure of depraved popular opinion 
(" Civiuni ardor prava jubentium "). 

With regard to railroad corpoiations, and other transportation com- 
panies, in view of their enormous and resistless influence over the rights 
and interests of citizens, it cannot be doubted that it is a function of the 
government to regulate their charges and mode of operation ; and such, 
accordingly, is the doctrine of our courts. And if no means of regula- 
ting them can be devised, and no other mode can be suggested, it is even 
true that the rights of the community would require the government 


itself to own, and to operate tlieno : and the same principle would apply 
to all monopolies. It must also be regarded as a function of the govern- 
ment to encourage the construction of highways and streets so far as 
essentia] to the comfortable life and healthful development of society ; 
as, for instance, in the case of cities, which it is obvious could not exist 
without the exercise of this function. But it must also be confessed that 
the exercise of this function has not hitherto been unexceptionable. 

Nor can it be doubted, to add one more illustration, that the functions 
of the government extend, under proper conditions, to the coinage of 
money and to fixing the value of the coins and making the same legal 
tender, and also to the issue of paper money, and the general supervision 
of the currency. Indeed, the necessity for the exercise of these functions 
is so apparent that it is never denied, except by those who have profiled 
by some previous action of the government in that regard (generally 
illegitimate), and who, therefore, naturally desire to be left alone. But 
there is perhaps no function of the government of which history pre- 
sents more numerous instances of its illegitimate exercise than this. It 
will be sufBcient, however, to illustrate the subject by a brief reference to 
our monetary history during and since the civil war. 

The issue of greenbacks during the war and making the same legal 
tender for past debts, was, in fact, a violation of the terms of such con- 
tracts. For, in all cases of contracts to pay money where no particular 
kind of money is specified, it is always a condition, expressed or implied, 
that the payment shall be made in the money current at the time of the 
contract. Hence, this legislation was in eflfect jyro tanto a confiscation of 
the property of the creditor. 

On the same principle, in all contracts to pay money made subse- 
quent to the passage of the act, where no particular kind of money was 
specified, the debt was payable in greenbacks, or any other legal cur- 
rency at the option of the debtor. But it is obvious that wherever 
the value of money changes, either the creditor or the debtor is injured, 
or, if the change be by the voluntary act of the government, defrauded ; 
and hence that to appreciate, is as unjust and immoral as to depreciate the 
currency ; and nothing, therefore, can be more obvious than that it is the 
duty of the government, so far as in its power lays, to prevent all fluctua- 
tions in the value of money. Thus at the end of the war when legal ten- 
ders were at a low ebb, their value was, of course, increased by the large 
demand made by the entrance of the South again into the financial system 
of the country — greatly to the damage of the debtor class whose debts were 
thus in fact increased ; but the damage was the result of circumstances 
which the government could not control, and hence was damnum absque 
ivjuria. But the subsequent legislation of the government, avowedly 
designed gradually to appreciate the value of its paper money and finally to 
redeem it in coin, was in violation of all principles of justice, and in effect 
constituted the levy of a subsidy of about fifty per cent, on the average 
of the total private indebtedness of the country during the period of the 
appreciation of the greenbacks — amounting to billions of dollars. 


This legislation was justified upon the ground that the government had 
contracted to pay the face value of its notes, and tiiat justice required 
that this obligation should be fulfilled. But, even if the performance of 
ttiis obligation could not have been deferred, it mav be said, paradoxical 
as the proposition may appear, that it was unjust for the government to 
perform it, at least in the manner that it was performed. For the green- 
back was not merely a contract of the government ; it was also the 
money of the country, and could not be appreciated in value in any 
way without levying an unjust subsidy upon all the private indebtedness 
of the country ; so that, in fact, the government could not pay its notes 
in specie, without also compelling the unjust payment of ten or twenty 
times the amount; by private parlies. And it may be safely said that, 
where the government can only pay its debts by taxing, to a tenfold, or 
twentyfold amount, other parties, equity forbids it to pay. But, in this 
case, the action of the government was entirely gratuitous ; for it could, 
without violating the contract, have delayed the payment, or, even if it 
had repudiated its contract by paying only the actual value of the cur- 
rency, it could afterwards have compensated the parties injured. The 
effect of this policy, so highly lauded, and pointed to with pride by many, 
was to transfer, unjustly, from the debtor to the creditor class many bil- 
lions of dollars. 

Another effect, less important, but still monstrous in proportion, was to 
double the bonded indebtedness of the United States. And this was 
aggravated first, by the legislation making the bonds payable in coin, and 
then by the demonetization of silver — thus largely appreciating the value 
of gold, and making them piyable in that metal. 

These conclusions, indeed, are warmly disputed, and those who affirm 
them are characterized as cranks, or as debtors aiming to defraud their 
creditors ; but in the main, the principles upon which they rest are not 
contested by competent writers upon financial subjects, whether hi met- 
alist or mono-metalist ; and they are too obvious to be intelligently dis- 

I touch here, contrary to my custom, upon matters of current politics, 
and it is not be expected that what is said will be dispassionately consid- 
ered ; but a few words on the other side of the question may perhaps 
tend to set me right with some of my readers. It is proposed now to re- 
form the currency by remonetizing silver at a ratio of 16 to 1. That the 
demonetization of silver was one of the most disastrous mistakes that has 
ever been made, I do not doubt ; nor do I pretend to deny that I am in 
favor of its remonetizition ; but I readily perceive that to do this without 
injustice is a difficult task. The principle underlying the whole subject 
is the one already referred to — that a change in the value of the currency 
is an injury, and generally a robberj% either to the creditor or the debtor. 
The issue of legal tender greenbacks, and their final redemption, by means 
of the demonetization of silver, in gold coin, was a palp ible robbery 
equally of the debtor and of the government. But, as we have for years 


been in effect upon a gold basis, and as payment in gold i-; therefore, 
either expressly or impliedly one of the terms of every contract for the 
payment of money, the remonelization of silver, it may well be claimed, 
■would be a robbery of the creditor, and, therefore, unless accompanied 
with other provisions of the law obviating injustice, an illegitimate exor- 
cise of governmental functions. Hence, to prevent injustice from the re- 
sumption of the free coinage of silver at the old ratio, it would be neces- 
sary for the government to redeem all outstanding currency, gold, silver 
and paper, at its value in gold, and for the law to provide for the pay- 
ment of all existing debts public and private in gold coin. To the justice 
of this course neither party could make just objection ; not, the gold men ; 
for contracts would be paid according their tenor ; nor the silver men ; 
for it is claimed by them, and I think justly, that gold would be depre- 
ciated. This would be a great, but not impracticable undertaking ; and 
perhaps in view of the disastrous effects of the demonetization of silver, 
and of the absolute necessity of a remedy, it might be also advisable, (/t) 


(a) "Man, born in a family, is compelled to maintain society, from necessity, from 
mutual inclination and from habit. The same creature, in his further progress, is 
engaged to establish political society, in order to administer justice, without which there 
can be no peace among them, nor safety, nor mutual intercourse. We are therefore to look 
upon all the vast apparatus of our government as having ultimately no other object or 
purpose but the distribution of justice, or, in other words, the support of the twelve 
judges. Kings and parliaments, fleets and armies, officers of the court and revenue, 
ambassadors, ministers and privy counselors, are all subordinate in their end to this part 
of administration " (Hume's Essays). 

( b) The origin of this, the laissez alter theory, is ascribed by Mr. Ahrens to Kant, to whom 
bethinks the reaction from the theory of Wolf is due. "Thenceforth," he says, "the 
State was conceived as an institution, not for eternal or temporal salvation, but for right, 
guaranteeing to all liberty, and nothing but liberty, which each was to use consistently 
with the liberty of all, and according to the moral views freely formed in his own con- 
science. The theory of Kant upon the end of the State thus conducted to the con- 
ception of the State as an institution, or Stcite of right {Hat de droit, rechts-staat), wliich 
England has, in great pan, realized in practice, which Adam Smith, with whom Kant 
has been paralleled, has established from the point of view of the liberty of labor, and 
Avhich the United States have realized still more completely in all their Constitution. 
NeverXhelcss, the theory of Kant went beyond all reality. For even the United States, 
where the particular States take so great a care of public instruction, have not gone so 
far in the limitation of the action of the State. The theory of Kant did not respond 
sufficiently to practical exigencies, and it was also recognized, from the jihilosophic 
point of view, as an exclusive, abstract theory, leaving out of view all the ends of man 
with which right ought to be put in relation. To remedy this great defect attempts were 
made to combine the two opposed theories of right, and of happiness, or, rather of the 
common good, by presenting right as the primary, or direct, immediate end, and the 
common good, on the contrary, as the secondary or indirect end, yet without determining 
precisely the relation of the one as the mean, with the other as the final end" {Cuurs de 
Droit Naturel, Sec. 106). 

(c) I quote Prof. Sumner from memory. The fact is there has never, in any modern 
government, been even an approximation to the laissez /aire doctrine, and no argument 


against it can, therefore, be drawn from experience. The suffering and oppression 
among operatives is generally cited as an illustration of the unsatisfactory workings of 
the doctrine. But in reality they are the victims of power in a large measure created by 
artiflc'ial political arrangements. To bring the State under the full operation of the doc- 
trine, it would be necessary to repudiate, or at least to essentially modify, the existing 
policy of the State with reference to the following subjects, viz., contracts, and especially 
coMtracts for the payment of interest, patent and copyright laws, corporations, taxation 
and other subjects. 

Thus, with regard to usury, or interest, there is an almost imiversal consensus of 
opinion in favor of allowing it, and I do not mean to say either that I am, or that I am 
not, of a different opinion ; but certainly the arguments which have been advanced in its 
support, and which have served to convince the world, are very far from being 

The celebrated argumentof Bentham, which is regarde 1 as having settled the question, 
is even childish in its simplicity. Briefly, it i.s " tliat no man of ripe years and of sound 
mind, acting freely and with his eyes open, ought to be hindered, with a view to his 
advantage, from making such bargains iu the way of obtaining money as he thinks fit." 

And he adds : 

" Were it any individual antagonist I had to deal with, my part would be a smooth and 
easy one : ' You who fetter contracts, you who lay restraints on the liberty of man, it is 
for you, I should say, to assign a reason for your doing so.' That coitracts in general 
ought to be observed is a rule no man was ever yet found wrong headed enough to 
deny," etc. {Defense oj Usury, Introduction). 

But obviously Bentham here mistakesthe issue, and it is he who is arguing in restraint 
of liberty ; for his thesis is, not that men ought to be peroiiited to agree to pay interests, 
but that the State ought to compel him to do so ; and he in fact assumes as his first prin- 
ciple that all contrar-ts should be enforced. But, as observed elsewhere, there is no such 
principle— taking the proposition universally — known to the law, or to right (v. infra, 
pp. 140, 141), and the question presented in this and all other cases of contract is whether 
the force of the State ought to be used. 

With regard to taxation, omitting the other subjects referred to, the power of taxing, 
both as to amount and as to kind of taxation, is unlimited, and the power is used, not 
simply for the purpose of providing for the necessary expenses of the goveriimeut — its 
only legitimate object— but for the purpose of so-called protection, and other equally 
illegitimate purposes ; and it is impossible to calculate what efFdCt this has had upon the 
inequalities of condition in the body politic. 

(d) We quote this from Mr. Coleridge, who uses it to emphasize his own experience of 
" the extreme shallowness and ignorance with which men, of some note, too, were able, 
after a certain fashion, to carry on the government of independent departments of the 
empire" {Table Talk, London, George Routledge & Sons, p. 194). 

(e) This is well expressed by Amos: "The generic expression which denotes, for any 
given age or country, the exact measure of personal liberty for every man, which supplies 
the most favorable conditions for the highest possible development of all, is rights" ( The 
Science of Law, p. 91). And this seems to agree with the view of Krause, or rather of his 
Spanish translator, Sauz del Rio : " Right requires that all men shall give and receive 
mutually and iu social form, every condition necessary for the fulfillment of their 
destiny, individual and social." "The idea of right .... looks to the totality of human 
ends, and the conditionality thus imposed on man as itself an end " {Ideal de la Humaiu- 
dad, p. 48). 

(/) Mr. Ahrens, in reviewing the principal theories as to the end of the State, distri- 
butes them into three grand categories, the names of which— for lack of ability to trans- 
late them satisfactorily to myself— I give in the original, namely, " la theorie d'unitiS, les 
theories partielles, et la doctrine harmonique." 

The first theory is that which confounds the end of the State (by which it will be 
understood Mr. Ahrens means the organized State, or government, or the political order) 


with the end of the social orcier in general, or, as I would say, which confounds the end 
of the government with that of the State. 

The second category comprehends the several theories, which assign to the State one, 
or several, particular ends. This class includes numerous and inconsistent theories, as, 
for instance, that of Aristotle, who, with Cicero and Grotius, distinguished " a direct 
end of the State, consisting in the maintenance of justice, and an indirect end, consisting 
in happiness or well-being;" it includes also the theory of Thomasius and Kant, who 
make a radical distinction between Right and Morality, and assign the first as the sole 
eud of the State— holding that the State should not otherwise concern itself with the 
happiness of its members, but should leave it to the free choice of each to seek his own 
happiness ; and also, the doctrine of Leibnitz, who regards the end of the State to be the 
perfectioiimenl of society, and that of Wolf, who regards it as happiness or felicity, or the 
common welfare and safety ; and finally also that of Hegel, which may be regarded " as 
the culminating point of the modern movement which commences by presenting the 
State as the pivot of social order, and ends, not only by absorbing, in the ancient way, 
everything in it, but also, by conceiving the State itself as the absolute end, as the mani- 
festation of the Divinity, or, as the ' present God' " (or, as Hobbes says, "the Mortal 
God "), an apotheosis by which the just relations of the State, as a means, with the culture 
of all that is diviue and humin, are completely inverted. 

" The third category consists of the doctrines which seek the orgmiic, and harmonic 
relations of the State (i. e., the government), and its end, with the order, and the end of 
human society. Apart from certain feeble essays attempted by others, there is only the 
doctrine of Krause by which these organic relations can receive a precise definition in 
conformity with all the tendencies, at once, of liberty aud of humanity, in our epoch " 
{Cours cle Droit. Naturel, g 106, Du But, De I'Etat). 

This doctrine forms the basis of Mr. Ahren's own exposition ; which is set forth in the 
following section (Du But, De i'E'nt on Point de Vue Ideah, and more generally in the first 
part of the work in § 5, and which will be again reverted to. 

(g) The views in the text seem to agree, at least in the conclusion reached, with those 
of Mr. Ahrens : 

" When we speak of right," he says, " as the fundamental end of the State, and thus 
concede the State as b2ing by its essence I'etat de droit {rechts-stajt), we must remember 
that right has not its ultimate end in itself, but in human culture ; it follows, then, that 
we must assign to the State a double end ; an immediate, direct eud, that of right, and 
an end indirect, but final, consisting in the social culture. This distinction is explained 
by several authors, bat none of them, with the exc -ption of Krause, has made clear the 
intimate and necessary relation existiug between right as the direct end, and all culture 
as the final end." 

But the author explains, at length, that this function consists " in regulating or order- 
ing the relations of life and of culture, without intervening in the causes and productive 
forces which are situ ited outside of its domain and its action;" and "in realizing, for 
all the spheres of life, the conditions of their existence and their development," " Intel- 
lectual, moral, religious, economical causes," he says, "are the primary powers, the 
immediate sources of life, and the powers of the State can consist only iu keeping open 
the sources of life, from which flow, by the free and proper impulsion of all the forces, 
individual and social, the good influences which form the ever increasing aliment of 
social life " (C'ours de Droit Naturel, pp. 331, et seq.). 

I am unacquainted with Krause's views, with which Mr. Ahrens expresses hisagreement, 
except at second hand. As well as I can make out, his theory seems to be, that the end 
of government is simply the maintenance of right or justice, but the sentiment of right 
is regarded by him, "not as a sentiment of individuality," but as "the sentiment of a 
common and reciprocal relation " which demands " that all men should give and 
receive mutually every condition for the fulfillment of their destiny, individual aud 
aggregate" {Ideal de la Iliimaaidad, Sac. 17). The diffrirence between this, aud the nar- 
rower view of justice, may be illustrated by the two forms of the familiar maxim, viz. : 
" Do unto others what you would have others do to you ;" and : " Do not to others what 
you would not have others do to you." 


Hence, " the State, as the exterior form of justice, ought to assure to its citizens all the 
conditions necessary for accomplishing freely the totality of their destiny ; but the 
interior conditions of liberty and moral merit, the internal operations of the mind, and 
the superior powers of the understanding-' and the will areoutsideof its sphere, and above 
its means. In these particulars, the State can only give the exterior conditions .... 
thus giving legitimacy {derecho) to the activity of other institutions relating to the 
destiny of humanity ; but the State can neither found nor direct the interior life of these 
Institutions" (Id., Sec. 25). 

We add, for the purpose of more fully explaining and illustrating the organic 
theory of the State, the following observations of Mr. Ahrens, whose views we have 
already so largely noted : 

" No organism can exist and be developed without a certain equilibrium between all 
its parts. In the physical organism it is maintained by natural laws. In the ethical and 
free organism of the State it ought to be preserved by rational laws formulated and 
executed according to the free fluctuations of the social life of the State. To maintain 
to a certain degree, the equilibrium, the proportion, the harmony between the different 
branches of the social work of culture, above all to arrest evident deviations and pro- 
tuberances, this is the important function that the State ought to fullill, both by general 
laws regulating better the relations between the different parts, and by afiirmative aids, 
which it can distribute, according to the rules of a just prof)ortion. 

" It is this action of organic relation established first in general in the three organic 
functions of right which we have yet to determine more in detail 

" (1) The first principle which ought to guide the State in its activity is to recognize 
the probable nature, the independence, the autonomy of all the spheres of life, pursuing 
ends distinct from the juridical and from the political end. We have already sufficiently 
observed that these principles are to receive consecration by the practice of self-govern- 
ment applicable to all the spheres and to all the degrees of human society. 

" (2) The second principal function of the State admitted by all theorists, is of the 
negative and restrictive nature. It consists in removing in the domain left free to the 
operation oflaissezfaire, laissez passer, those obstacles which are too great to be overcome 
by individual forces, in imposing upon the liberty of each the limits necessary for the 
existenceof the liberty of all, and in submitting for the maintenance of eternal peace, all 
controversies to the tribunals. It is to this function, without doubt, very important, that 
a theory, the expression of an extreme tendency, has wished to reduce the end of the 
State. It is, as we have seen, the exclusive, abstract form of the theory which considers 
the State as the order of right [I'nrdre da droit), isolating it from all the ends of culture ; 
an opinion practiced largely in England, systematized by Kant, and carried to excess by 
the English positivism of Buckle 

" (3) There is then a third function assigned to the State by its end, and consisting in 
favoring, directly and positively, the social development. All modern theorists who 
have elevated themselves above the narrow piint of view of the doctrine of laissez alter 
are in accord upon this fundamental principle, but none of them have undertaken to 
determine the mode or the manner in which the State ought to favor the social culture." 
" We will cite only," continues Mr. Ahrens in a note, " some eminent writers outside of 
Germany. Mr. J. S. Mill says that the intervention of the State ought to be admitted 
only in cases of imperious utility. Mr. Ch. de Remusat says : ' Whenever the question 
is doubtful, whenever imperious antecedents, or a necessity generally felt, does not take 
away the faculty of choosing between the coercive system (the action of the State), and 
the voluntary system (self-government), do not hesitate to reject the power and trust 
yourselves to liberty.' Mr. Ed Laboulaye says : " The end of the State is the protection 
of the moral and the material interests of all its citizens. The maintenance of the State 
is then the first guaranty of liberty. To give the State the highest degree of power, it is 
necessary to charge it only with that which it ought to do necessarily. Otherwise it is 
to employ the force of all to paralyze the energy of each.' Mr. L. Bland (I'Etat et la 
Commune, 18i6) says : ' Whenever the intervention of the State is in opposition to the 
free development of the human faculties, it is an evil ; but whenever it aids in that 
development, or removes an opposing obstacle, it is a good.' Nevertheless these princi- 
ples of necessity and of affirmative aid, demand to be more precisely formulated. 



" Uudoubtedly liberty, as we have not ceased to show, is the first source of light, and 
liberalism is right in putting itself on guard against all the measures of safety proposed 
by the government, in examining scrupulously whether the good which it designs by its 
general means does not weaken the first sources of action and personal responsibility ; it is 
true also that au important mission of government, even at the present time, consists in 
repairing the evil and injustice which the governments in the past have done or allowed 
to be done, in removing the obstacles by which the social movement has been obstructed 
in all directions. 

"In modern times it is in France that liberty has bsen most profoundly examined in 
its source, its practical applications and its relations with the action of the State, by the 
eminent writers cited above, and the existing regime (the imperial) will have had at 
least the effect of having effected a double moral reaction of the French genius " {Cours 
de Droit Aaturel, pp. 333, et seq.). 

(h) That the demonetization of silver, and the consequent appreciation of gold, or 
what is the same thing the resulting fall of prices, is the main factor in producing the 
existing financial depression, and that, from the same cause, there still remains in store 
for us a great aggravation of existing evils, is a proposition warmly disputed, but in favor 
of which the argument seems conclusive. The exp2rience of a few years will, however, 
definitely determine the question ; and while I believe the result will be as above staled, 
I will be glad to find myself mistaken. 

Of the Several Functions of Government. 

§27. Of the Function of Organization and That of Administration. 

The ordinary functions of government, or, as they may be called, the 
functions of the government, are to be distinguished from the extraordi- 
nary function, necessarily vested in every State, of organizing a govern- 
ment. The latter may be called the function of political organization ; 
the former, the function of political administration — using the term in its 
wider sense, as including the administration of justice. This will be first 

§28. 0^ the Sovereign and Subordinate Functions of the Oovernment. 

The functions of the government are either sovereign or subordinate — 
the former being those exercised by sovereign officers or departments, 
which maybe defined as ofllcers or departments having no superior in the 
government ; the latter, those exercised by inferior ofiicials. 

§ 29. Of the Received Classification of the Functions of the Government. 

The sovereign functions of the government are commonly classified as 
being legislative, executive, and judicial— a division suggested by Aris- 
totle (a), and afterwards more fully expounded by Montesquieu (5), 
from whom it has passed into common use. It was especially familiar to 
the founders of our government, and is thus the source of the provisions 
in the American Constitutions, State and Federal, vesting these several 
powers in three coordinate departments, known as the Legislative, the 
Executive, and the Judicial, respectively, (c) 

But this division of the functions of the government — though founded 
upon a real and essential difference of nature, and, as practically adopted 
in the several American Constitutions, constituting a great step in advance 
in political organization — lacks scientific accuracy in several particulars ; 
and of the terms used to denote the several kinds of functions, two, viz., 
" legislative " and "executive " are inappropriate and misleading. 

§30. Of the So-called Executive Functions. 

Thus, there are included under the term, " executive functions," two 
classes of functions essentially different in their nature, namely, first, the 
functions belonging to the Chief Executive, whether king, president, gov- 
ernor, protector, or of other name ; and, secondly, executive functions, 
properly so called, which consist in executing the enactments of the Leg- 
islature, the judgments of the courts, and the commands of the Chief 



Executive. This class of functions are subordinate in their nature, and 
have no place in a division of the sovereign functions, and carresponding 
rights or powers of theStatj; and hence the term ejcecutioe fuactions is 
to be understood as denoting merely the functions of the chief executive. 
But, in this sense, the terna is inappropriate and involves a grave 
error ; for its U5e in this connection is founded upon the erroneous notion 
that the functions of the king, president, or other chief executive, consist 
merely in executing the enactments, or expressed will, of the legislative 
department, which is not true, (d) For, wliile it is the function of the 
head of the State to see that the legislative will, when not i/ltra vires, is 
carried out, and also the judgments of the courts, when within their juris- 
diction, these are not his only functions, but he is vested with others 
which are independent of the other departments. On this account, it has 
been suggested by eminent publicists that these independent functions 
should be distinguished by some appropriate term ; and for this purpose 
several terms have been suggested, as, for instance, by Blackstone, "the 
Royal Prerogative ;" by German writers, "the Inspective, or Supervisorial, 
Power;" by Clement Tonnerre and B. Constant, "the Royal Power;" 
by Bluntsclili, "the I>aperial Power" (Lnperium), and by Ahrens, "the 
Governmental Power." (e) Of these, the last is justified by the usage, 
according to which, in England, the ministry is called "the govern- 
ment," and in America the title of Governor applied to the chief execu- 
tive of the State. It also, if we have regard to the original sense of the 
term, agrees precisely with the term "royal power," suggested by M. 
Constant; though for the latter the term "regal power," the "potestas 
rectoria" of Kant, or, still better, the "Imperial Power," might, perhaps, 
be advantageously substituted. Thus understood, all these terms well 
express the nature of the power in question ; but as the term royal, or 
regal, or imperial, carries with it an unpleasant sound to republican ears, 
it will be better to adopt the term suggested by Mr. Ahrens, and to call 
the function in question governmental; the term to be regarded, not as 
the name of a, fourth function, but as the true name of what is erroneously 
called the exeeutioe function, and to be substituted for that term. 

§31. Of the So-called Legislative Function, and Herein of Juiieial 
Legislation or Legislative Jurisdiction. 

The term legislative function is even more unfortunate. For legislation 
is one of the modes in which the judicial function is exercised, and the 
function of legislation is to this extent judicial. For the judicial func- 
tion consists in the function of determining controversies between men, 
or classes of men, as to their mutual rights and obligations, and obviously 
may be exercised in two ways, — namely, the one, by determining contro- 
versies between individuals, that are submitted to the courts, or, in 
other words, in the exercise of jurisdiction, in the narrow sense of that 
term used by the lawyers ; the other, by establishing general rules 
for determining in advance classes of controversies that may be aniici- 


pated to arise. The latter is as essentially an exercise of the judicial 
function as the former, the only difference being that, in the one case, 
single controversies, in the other, classes of controversies are determined. 
The exercise of the latter function is, therefore, neither exclusively legis- 
laiioe nor exclntively judicial, and can be described in no other way than 
by calling it the function of judicial legislation or legislative jurisdiction. (/) 
Obviously such judicial legislation is to be essentially distinguished from 
legislation that relates to the administration of the government in other 
than judicial matters ; such, for instance, as legislation for the support 
of the government and its defense from external and from internal aggres- 
sion, for the administration of its finances and other property, for regu- 
lating the election and the duties of officers, and for education, the sup- 
port of the poor, and other such matters ; which may with propriety be 
termed administrative legislation ; for, with regard to the latter, the gov- 
ernment is vested with the function, and the right, within certain limits, 
of adopting any means which it may deem most conducive to the efficient 
administration of government, and the maxim applies, " Voluntas sttt 
proratione;" but with regard to the former, it performs, in effect, the 
function of a judge, and should be governed solely by the consideration 
of what is just and equal between men. Or, in other words, the object 
of administrative legislation extends, within appropriate limits, to the 
promotion of the welfare of the people generally ; while that o{ judicial 
legislation extends only to the promotion of their welfare in a particular 
way, viz , by causing justice to be observed ; and in the exercise of this 
function the maxim, " Judicis est jus dicere non dare," is equally appli- 
cable to the legislator as to the ordinary judge. Thus, for instance, a 
law declaring that, in each of the class of cases determined by its provis- 
ions, an obligation shall arise to transfer property, or to render services 
to another, is obviously a declaration of the judgment, and not merely of 
the will, of the legislator, or, in other words, is an exercise of the judi- 
cial function ; and, on the other hand, if there be no pretense of natural 
obligation, corresponding to the burden thus imposed, the law would be 
essentially unjust, and, therefore, not a legitimate exercise either of the 
judicial or of the legislative function ; and it would also be in conflict with 
the Constitutional provision that no man shall be deprived of life, liberty, 
or property, except by due process of law. Hence it cannot be doubted 
that the function of judicial legislation is essentially identical with that of 
jurisdiction in the ordinary sense, and that, whether called upon to de- 
termine particular controversies presented for decision, or to determine 
classes of cases, in advance, by establishing rules for their decision, the 
function of the State is simply that of a judge, or umpire, and that 
justice constitutes the only admissible principle of decision. For it would 
be a monstrous proposition to assert that it is the function of government 
to establish, in the comparatively few cases that are presented to it for 
decision, a set of principles different from those principles of justice by 
which honest men, and indeed men in general, hold themselves to be 


bound, and by which, in the great majority of cases, their mutual claims 
and demands upon each other are habitually and voluntarily regulated 
by themselves. 

i^ 33. Another Division of the Functions of Government. 

We will, therefore, for the purpose of marking this distinction, regard 
the function o( judicial legislation, or legislative jurisdiction, as part of 
the judicial function, and the function of legislation as including only 
that of administrative legislation. Our divisions of the functions of gov- 
ernment will then stand thus, viz.: (1) The governmental, or so called 
executive function ; (2) the legislative function, including only that of 
administrative legislation : and (3) the judicial function, including that 
of legislative jurisdiction. 

§ 33. Of the Twofold Division of the Function of Government. 

But even this, perhaps, may be improved. For, if attentively consid- 
ered, the legislative, seems to belong properly to the administrative func- 
tion ; of which the two special functions, namely, the legislative and the 
governmental, appear to be merely different modes of exercising the same 
general function, rather than as themselves being essentially distinct. 
For, precisely as, in individual life, the conduct of men, in matters not 
governed by moral considerations, is directed partly by general rules 
founded on experience, and partly by particular judgments formed upon 
the occasion as it presents itself, so the State, in matters non-judicial, will 
find it necessary sometimes to govern its conduct by general rules or laws, 
and sometimes by the suggestions of the particular occasion ; but in both 
cases, the end in view, and the corresponding function, is the same, 
namely, the efficient administration of its affairs. It is indeed obviously 
expedient that the administrative functions should be divided into ilie 
legislative and governmental ; but the ends of both are the same, namely, 
to administer the non-judicial affairs of the State, and the difference is 
merely in the mode of effecting this end. We must, therefore, I think, 
regard the tripartite division of the functions of government as erroneous, 
or, rather, inaccurate, and adopt the twofold division, namely, into the 
judicial and the administrative functions, distributing — as will be ex- 
plained more fully when we come to treat of the organization of the 
government — the function of legislative jurisdiction to the former and 
that of administrative legislation to the latter. And this division of the 
functions of government, it will be found, is theoretically confirmed by a 
consideration of the ends of government, and historicilly by a considera- 
ation of its primitive organization, and of the subsequent development of 
the judicial function and of the law. 

§ 34. Theoretical and Historical Argument in Support of this Division. 

The ends of the State were considered in the preceding chapter, and 
it was there shown that there are only two theories with regard thereto 


that are worthy of consideration. The first of these is the strict judi- 
cial theory that regards the administration of justice, not only as the 
principal, but as the sole, end of the State ; the other admits that this 
i£ the principal end of government, but holds that, in subordination to 
this function, and, so far as may be consistent therewith, it also comes 
within its end, and consequently its function, when necessary, to super- 
vise, protect and encourage the natural development of society. The 
former, that is, the judicial function, being the essential and paramount 
end of government, should obviously be regarded as essentially distinct 
from all others, which must be held merely subordinate. The exercise 
of this function, however, obviously demands the existence of a gov- 
ernment, and the administration of its powers and resources, both with 
regard to its external and its internal relations ; and, in this adminis- 
tration, it may be admitted that the general welfare of the community 
may be legitimately considered ; but this, as we have seen, is a merely 
incidental or unessential end, which, in itself, would not be sufficient 
to justify the existence of government. Hence, the functions of gov- 
ernment should, in the first instance, be divided into (1) the essential 
and paramount function of causing justice to be observed — which may 
be called either the judicial function or the function of jurisdiction; 
and (2) the subordinate functions of government ; all of which are 
included under what we have called the administrative function. The 
last should be divided into the legislative and the governmental functions ; 
and a corresponding division should be made of the first, namely, into 
the function of legislatioe jurisdiction, and that of ordinary jurisdiction. 
This accords precisely with the organization of the primitive State, 
in which the king, apart from his character of military and administra- 
tive chief, is regarded merely as judge, and the necessity of legislation 
is not even conceived of (g) ; and it also accords with the subsequent 
development of the law, which has mainly been the result of the exer- 
cise of the judicial function, and in which legislation has had but small 
part. "We perceive, therefore, that our twofold division of the sover- 
eign functions of the State into the judicial, and the administrative func- 
tion, and especially the distinction made by us between judicial, and 
administrative legislation, is not only suggested to us by a consideration 
of the legitimate ends of the government, and also, historically, by the 
primitive constitution of the State, but that is also confirmed in the 
historical development of the law. 

§ 35. Of the Judicial Function of the Government. 

With regard to the judicial function, therefore, its province may be 
readily determined. It includes, as we have observed, the functions 
both of legislative, and of ordinary jurisdiction ; and in the exercise of 
either of these functions the same principle should be applied, as to all 
other functions of the government, namely, that they should be exer- 
cised only in aid of the natural development of society, to which the 


interference of government should be merely ancillary, and not in such 
a manner as to interfere with its natural progress. 

In applying this principle, the first phenomenon that should attract 
our attention is that the observance of justice is, in the main, provided 
for by nature itself. Men living in society inevitably conceive certain 
notions of justice, and of right and wrong, and these, by a process of 
nature that appears to be necessary in its action, become common or 
universal ; and thus, as we have seen, is created the received or posi- 
tive right of the people ; which, in general, covers nearly the whole 
field of jural relations; and which is, in the main, a correct expression 
of the principles of natural justice, as theoretically defined ; and 
which, also, is the practical standard which men ought to observe, and 
to which, by an impulse of nature, they involuntarily submit ; and it is 
this which constitutes the means by which society, and government, 
and even civilization, become possible. 

Hence — as the development of the theory and principles of right is, 
in the main, like the rest of the development of society, natural and 
spontaneous — it follows, as an application of the organic theory, that 
the function of judicial legislation is merely supplemental to natural 
functions ; that it does not extend to the abrogation of the principles 
of natural justice, but merely to protecting them, and to encouraging 
and directing their natural development to such extent as necessity 
may demand, and no further. 

With regard to the function of ordinary jurisdiction, a few additional 
observations will be necessary. Jurisdiction is of two kinds, namely, 
civil, and criminal, — the former consisting in the power to hear and 
determine controversies between individuals as to their mutual rights ; 
the latter in the power to hear and determine accusations of crime, 
which, so far forth as they enter into the domain of jurisdiction, are 
merely controversies between individuals and the State. 

The criminal jurisdiction will first be considered. The right of pun- 
ishment is based exclusively on the right of self-defense, which is nec- 
essarily vested in the government as it is in the individual, ( Vim vi 
repellere omnia jura clamant). It is, therefore, in its essential nature, 
merely the war power exerted against internal enemies ; for the crimi- 
nal is in fact at war with the State. The right, therefore, is strictly 
limited by necessity, which is its only justification, {Salus populi su- 
prema lex), and, in its essential nature, it is the same as the right in war 
over captured enemies. The State, therefore, has no right to inflict 
punishment by way of retribution, or for the purpose of reforming the 
criminal, but merely for the purpose of the prevention of crime by ex- 
ample of punishment or by actual restraint. I do not say, it will be 
observed, that the functions of the State do not extend to the reforma- 
tion of the criminal, but only that the justification of such a function 
does not rest upon the right of punishment. 

The right, therefore, extends no further than to inflict the punishment 


demanded by the necessity of preventing crime. Beyond this, the 
State has no right over the person, the property, or the labor of the 
convict ; and hence the practice, universal in our penal system, of com- 
pelling the convict to labor for the benefit of the State, is as unjust 
as it is unwise. For, in the one aspect, it takes from the convict 
the incentive of exertion, and thus destroys almost the only prac- 
tical means of reformation ; and, on the other, it constitutes an un- 
necessary and unjust conversion of the person, the labor, and the 
property of the citizen to the use of the State, and thus by impress- 
ing upon him the fact that justice is something with which, in the view 
of society, he has no concern, still further corrupts the sentiment of 
justice in the heart of the convict. Nor is this injustice excused by the 
fact that no profit results to the State from the policy, or, in other 
words, that the business does not pay ; but rather, on this account, we 
may say, to use the somewhat immortal language of the diplomatist : 
"It is worse than a crime ; it is a blunder." 

The question of punishment is not a judicial one, but pertains to the 
governmental power; but before the right to punish can accrue, a ques- 
tion oi jurisdiction must necessarily arise, namely, to determine whether 
the accused is guilty of the crime charged ; which, as we have observed, 
is a controversy between the individual and the government, aifecting 
the private rights of the former, and hence essentially similar in char- 
acter to controversies between individuals. For every penal jirosecu- 
tion is in elfect a suit by the State to establish a right over the person 
of the accused. 

With regard to the civil jurisdiction, it maj' be said that there is no 
other power or function of government of which the nature, end, and 
mode of exercise is, in this country and England, and in these latter 
days, so thoroughly and generally misunderstood. Briefly, the function 
is precisely what the etymology of the term, jurisdiction, indicates, 
namely, to declare the right between men, in conti'oversies presented 
to the courts for determination,* but, as commonly conceived, it is 
merely the power or authority to declare the legislative will with 
regard to the controversy. This — while as a universal proposition 
utterly false — is, to a certain extent, true ; for there are many mat- 
ters that are within the right of the legislator to determine, and 
as to these, when its will is declared, justice requires it should be 
observed, and hence the function of administering justice necessarily 
includes the obligation or duty to observe all valid laws. But, as we 
have seen, judicial legislation, even in modern times, is extremely lim- 
ited in its scope, and laws and statutes therefore constitute but an infin- 
itesimal part of the principles by which, in practice, rights are deter- 
mined. It is, indeed, as we have seen, asserted by Austin and others, 
that the courts are in fact vested with legislative power ; and that their 

* " Jurisdiction, jurisdictio: an autiiority or power which a man hath to do justice in 
causes of complaint brought before him," Jacob's Law Dictionary. 



decisions, being precedents for future cases, are, in their essential 
nature, laws differing in nothing from statutes, except in the mode of 
expression ; (A) and hence, that the law is a mere expression of the 
will of the State, consisting exclusively of laws or statutes, enacted 
either by the ordinary legislature or the judges ; but this proposition 
is manifestly untenable ; and, as fortunate!}^ the subject will be more 
or less familiar to the reader, it will tlierefore be sufficient on these 
points to observe that the proposition is opposed to the uniform opinion 
of the jurists, both of our own and of the Roman law, as embodied in 
the maxim, Judicis est jus dicere, non dare ; and that it is in conflict with 
the rule of stare deeisin, as uniformlj^ interpreted by the authorities of 
either law. (i) The eliect of judicial decisions, so far as they are bind- 
ing in the courts, is simply tliat accorded to custom generally. If they 
have entered into the life and mode of business of the people, or, in 
other words, have become part of their general customs, they must in 
general be observed ; and hence the validity of precedents rests upon 
precisely tlie same grounds as does that of customs, which are to be 
observed only when it is reasonable or just that they should be. 

Beyond this — on the principle, " Cuilibet in sua arte perito" — judicial 
decisions and the opinions of jurists carry with them, as do those of 
experts in all branches of knowledge, a certain autliority ; but in the 
law, as elsewhere, authority is to be regarded as a mere aid in arriving 
at truth, and can in no case be Iield conclusive. Naturally, every judge 
will avail himself of the labors of other judges when questions investi- 
gated by them come before him ; and he is bound to give their views a 
respectful consideration ; but the weight of the authority will vary in 
all cases, according to the learning and ability of its author, and the 
cogency of his reasoning ; and in all cases, except where the decision 
has passed into custom and become an accepted canon of property and 
conduct, the judge is bound to reject it, if, in his opinion, it is clearly 

§ 36. Of the Administrative Function. 

With regard to the administrative function, its nature, and the various 
modes of its operation, the subject is too extensive to be entered at 
length upon here. It is sufficiently defined, however, as including all 
the functions of government that do not properly belong to the judicial 
function ; that is, either to the function of ordinary or to that of legis- 
lative jurisdiction ; and it is to be subdivided into the legislative and 
the governmental functions. As to the precise division between these 
it must be determined by practical considerations, as there is, or at least 
I know of no principle by which they can be sharply distinguished. 
The subject, therefore, will belong more properly to the subject of 
political organization. 


§ 37. Of the Function of Political Organization. 

One of the advantages. of the above division of political functions is 
that it enables us to separate clearly the organic function, or function 
of political organization, from the functions of the ordinary govern- 
ment. The exercise of this function is illustrated by its practical work- 
ings in the Constitutions of this country, and, from this, has come to be 
generally recognized as an essentially distinct function by European 
jurists. The practical mode in which it is usually exercised is too 
familiar to us in this country to require any explanation, and it will, 
therefore, be sufficient to say of it that the principles which should 
govern its exercise are simply those of natural right, and, subordi- 
uately to these, considerations of the common welfare. 


(a) " Now in all States there are three particulars, in which the careful legislator 
ought well to consider what is expedient to each form of government ; and if these are 
in a proper condition, the State must necessarily prosper ; and according to the variation 
of each of these, one State will differ from the other. The first of these is the assembly 
for public Htl'dirs ; the second, the officers of the State (that is, who they ought to be , 
and with what power they should be invested, and in what manner they should be 
appointed) ; and the third, the judicial department" (Politics, Chap. xiv). 

(6) Esprit des Lois, Bk. xi, Chap, vi, a work that has had an immense influence on 
political thought, and is still very entertaining reading, but which has no pretensions, or, 
at least, no just pretensions, to the character of science. A better title for it, it has been 
suggested, would have been, Esprit sur Lois. 

(c) Constitution U. S., Art. i, ii and lii; Constitution Cat., Art. iii, Sect. 1. See also the 
Constitutions of other States. 

(d) This error, with many others, is exemplified by Kant : " Every State contains in 
itself THREE POWERS, the universal, united will of the people being thus personified in a 
political triad. These are the legislative power, the executive power aud the judiciary power : 
(1) The legislative power or the sovereignty in the State is embodied in the person of the 
lawgiver ; (2) the executive power is embodied in the person of the ruler who adminis- 
ters the law ; and (3) the judiciary power, embodied in the person of the judge, is the 
function of assigning every one what is his own, according to the law {Potestas legislato- 
Tia,recloria et judiciaria). These three powers may be compared to the three proposi- 
tions in a practical syllogism : The major, as the sumption, laying down the universal 
law of a will ; the minor presenting the command applicable to an action according to 
the law, as the principle of the subsumption, and the conclusion containing the sentence 
or judgment of right in the particular case under consideration" (Philosophy of Law, 
p. 165). 

We add Mr. Bluntschli's view of this position: "Another error which is almost 
childish, is that which treats the organism of the State as a logical syllogism : the legis- 
lative power determining the rule or major premise, the judicial power subsuming a 
particular case under it (minor premise), while the executive carries out the conclusion. 
All the functions of the different powers would thus be united in every judicial deci- 
sion, and government would be only the policeman to execute this judgment " (Theory 
of the State, -p. 520). 


(e) " This theory, according to which three powers are admitted, namely, the legisla- 
tive, the executive, and the judicial, was propagated by Montesquieu, who believed that 
he had derived it from the Constitution of England. But the Constitution of that country 
did not recognize such a separation of powers, since the king is there an integral part of 

the parliament But, as the theory of Montesquieu, adopted even in England 

(Blackstone), did not respond to the political reality, which presented in the royal power 
something more than a power purely executive, it was found necessary to complete it by 
the theory of the royal prerogative, which is useless when the governmental power of the 

State is well understood We see also that in France, during the first revolution, 

Clermont Tonnerre, and, later, B. Constant, sought to complete the theory by the doc- 
trine of a fourth power, called the royal power; and in Germany, there is generally 
added to the three powers an »!sperftfe power, which is equally comprehended, as we 
shall see, in the just notion of the governmental power— such as exists in democracies as 
well as in monarchies." 
B. Constant says, in his Cours de Politique Constitutionelle : 

"It will be regarded as strange, that I distinguish the royal power from the executive 
power. This distinction, always misconceived, is very important ; it is, perhaps, the key 
to all political organization. I do not claim the honor of having invented it; the germ 
is to be found in the writings of a man who perished during our troubles" (ib., note). 

"There is, then," continues Mr. Ahrens, " in the State, a governmental function, or 
power, of which the peculiar functions consist essentially in giving impulse and direc- 
tion to the public life, in inspecting and supervising the social movement, in keeping 
itself in touch with its needs, in exercising the initiative in legislation, and in adminis- 
tration, in representing the State in its international relations, and in constituting the 
point of union and connection for all the other powers and their principal functions. 
For this last and important need, the government ou^t to participate in legislation, by 
exercising an initiative, and by a veto, either absolute or at least suspensive. Likewise 
the government inspects and supervises the juridical functions, and directs directly the 
administration " (Cours de Droit Naturel, p. 357). 

" Government or Administration (Regierungsgewalt). The usual expression, ' Executive 
(volhieliende) power,' is unfortunate, and is the source of a number of errors, misunder- 
standings in theory, and mistakes in practice. It neither expresses the essential char- 
acter of government, nor its relation to legislation and the judicial power 

"The essence of government consists rather in the power of commanding in particular 
matters what is just and useful, and in the power of protecting the country and the 
nation from particular attacks and dangers, of representing it, and guarding against 
common evils. It consists especially in what the Greeks call the Roman's imperium, the 
Germans of the Middle Ages Mundschafl and Vogtei (tutelle and bailloge). Of all other 
powers government is the ruling, and, without doubt, the highest, being related to ihe 
others as the head to the limbs of the body. It includes what is called the representative 
power" (Bluntschli, Theory of the State, p. 521). 

(/) "The judicial (richtcrliche) power is often regarded as the power which judges 
(urtheilen)—& confusion which is favored by the French (and English) expressions (jjom- 
voirjudiciaere). But the essence of judicial power consists not in judging (urtheiten), but 
in laying down the law (richten), or, according to the Roman expression, not injudicio, 
but injure. ' Judging,' in the sense of recognizing and declaring the justice in particular 
cases, is not necessarily a function of government, nor the exercise of a public power. 
In Rome it was commonly entrusted to private persons asjudiccx, in mediaeval Germany 
to the assessors (Sclioffcii), not the judges [Ric/itcr). In modern times it is often entrusted 
to popular juries. Maintaining the law, on the other hand, and protecting the rights of 
individuals and of the community, has always been considered as a magisterial func- 
tion" (Bluntschli, Theory of the State, p. 523). 

These observations are just : except that I do not see that the English expression, " the 
judicial power," or the corresponding French expression, is open to objection. Etymo- 
logically it precisely expresses the idea of Mr. Bluntschli. 

(g) " It is certain," says Sir H^nry Maine, " that in the infancy of mankind, no sort of 
legislator, nor even a distinct author of law, Is contemplated or conceived of." " Zeus, 


or the human king on earth," says Mr. Grote in his History of Greece, " is not a lawmaker 
but a judge" {Aiicient Law, Chap. i). Hence, in the history of nations, legislation is a 
phenomenon of comparatively late appearance, coming into existence only as its neces- 
sity, as a curb upon irresponsible power, becomes developed. 

This ancient view of the function of government was well expressed in the cry of the 
Israelites to Samuel : 1 Sam., chap. viii. 19, 20 : 

" Nay, but we will have a king over us, that we may be like all the nations, and that 
our king may judge us, and go out before us, and fight our battles." 

(h) The doctrine of Austin may, however, be briefly refuted by considering the conse- 
quences logically involved in it. It is avowedly founded on the rule of stare decisis, of 
which, indeed, it purports to be but an expression. It will therefore apply to the deci- 
sions of the courts (m the construction and effect of statutes, equally as to their decisions 
on other questions. Whatever doubts and conflicts may have arisen with reference to 
the application of the rule in other respects, it has never been s-uggested that there is 
any distinction to be made between its application to acts of the legislature, or ordinary 
statutes, and its application to rules otherwise established. Hence it follows that the 
ordinary legislature cannot enact a valid law as to matters of private right ; for such 
law, or supposed law, cannot be enforced otherwise than by the courts, and is, there- 
fore, without a sanction— which, according to the theory, is an essential element of a 
true law— until it be so recognized ; and, if the courts fail to recognize it, or give it an 
erroneous construction, it can never become law. In this respect, statutes stand in pre- 
cisely the same category as customs or principles of natural right, which, according to 
the theory, cannot become law until adopted by the courts. 

Nor can there be any law of any kind binding on the judges. For, being vested with 
legislative power, they can, if they please, disregard the decisions of their predecessors, 
not only with impunity, but without blame. For the legislative power is, in its essential 
nature, an arbitrary power, and to be exercised according to the maxim, voluntas stel pro 
ratione, and the rule applies, legt s posteriores abrogant priores. 

Hence, as the ultimate consequence of the doctrine, we must conclude that law is in 
fact impossible, and that the sole standard of men's rights must always consist in the 
fluctuating and unforeseeable opinions, or rather decisious, of the courts ; and this, in 
fact, it is to be apprehended, is something like the condition to which the influence of 
this pernicious doctrine upon modern lawyers has reduced the law in this country at the 
present day. 

(i) The doctrine of our own law is thus expressed by approved authorities : " Even a 
series of decisions," says Chancellor Kent, "are not always conclusive evidence of the 
law, and the revision of a decision very often resolved itself into a mere question of 
expediency, depending upon the consideration of the importance of certainty in the rule 
and the extent of property to be affected by a change in it. Lord Mansfield frequently 
observed that the certainty of a rule was often of much more importance in mercantile 
cases than the reason of it, and that a .settled rule ought to be observed for the sake of 
property ; and yet perhaps no English judge ever made greater innovations or improve- 
ments in the law, or felt himself less embarrassed with the disposition of the older cases 
wlien they came in his way to impede the operation of his enlightened and cultivated 
judgment." "The lave of England," he observed, " would be an absurd science, were it 
founded upon precedents only " (1 Kent's Com., 47). 

As is said by Chancellor Went worth, speaking of this maxim : " While another maxim 
—humanum ast ejrarg— remains true, there must occasionally be a reconsideration and 
overruling of former judgments. If on a reexamination the former error is clear, our 
duty is plain ; we must be, as Lord Coke said Sir John Fortescue was, ' not amongst the 
number of those qui suos amassent errores, but one of those who yielded to the truth when 
he found it ' " (Preface to 10 Coke). 

The function of the judge is thus admirably explained by Hobbes : " The interpretation 
of the law of nature is the sentence of the judge constituted by the sovereigu authority 
to hear and determine such controversies as depend thereon, and consisteth in the 
application of the law to the present case. For, in the act of judicature the judge doth 


no more but consider whether the demand of the party be consonant to natural reason 
and equity ; and the sentence he giveth is, therefore, the interpretation of the law of 
nature ; whicli interpretation is authentic, because he givetli it by authority of the sov- 
ereign, whereby it becomes the sovereign's sentence, which is law for that lime for the 
parties pleading. 

" But, because there is no judge, subordinate nor sovereign, but may err in a judgment 
of equity, if, afterwards, in another case, he finds it more consonant to equity to give a 
contrary sentence, he is obliged to do it. No man's error becomes his own law, 
nor oblige-s him to persist in it. Neither, for the same reason, becomes it a law to 
other judges, though sworn to follow it. For, though a wrong senten' e given by 
authority of the sovereign, if he know and allow it, in such laws as are mutable, be a 
constitution of a new law in cases in which every little circumstance is the same, yet in 
laws immutable, such as are the laws of nature, they are not laws to the same, or other 
judges, in like cases, forever after. Princes succeed one another ; and one judge passeth, 
another cometh ; nay, heaven and earth shall pas-s ; but not one tittle of the law of 
nature shall pass, for it is the eternal law of God. Therefore, all the sentences of prece- 
dent judges that have ever been, cannot, all together, make a law contrary to natural 
equity ; nor any example of former judges can warrant an unreasonable sentence, or 
discharge the present judge of studying what is equity, in the case he is to judge, from 
the principles of his own natural reason " (Leviathan, pp. 123, 129). 

We may, therefore, with Mnckeldey, adopt for our motto the sentence of Cujacius : 
" Utinam qui hoc tempore jua nostrum interpretantur, Papianum imitati, qux vel falsa vel 
inepte aliquando et senserint, et scripserint ingenue retractent ; nee eis, contra quampostea 
resciierint, tarn obstinato tarn que obflrmatio animo (uti facuinl) perseverent " (Kaufman's 
Mackeldey, Preface). 


Op the Nature and Method of Jurisprudence. 

1 38. Public Rigid a Branch of Jurisprudence or the Science of Rights. 

The subject of the rights of the State, or public right, does not ia 
itself constitute a complete and independent subject of investigation, 
but merely a division or part of a more general subject, namely, the 
science of rights or justice, or, as it is more commonly called in our lan- 
guage, Right, and in other languages, Recht, Droit, Diriito, Derecho, etc. 
Some observations on this subject will therefore be required before enter- 
ing upon the immediate subject of our investigations, which is, the rights 
of the State. These will be found in this and the following chapter. 

The term, Right, like its foreign equivalents, denotes rather the sub- 
ject of the science — i. e., rights in the aggregate — than the science 
itself, and its use in the sense above given is, therefore, to some extent 
inaccurate. On this account it is desirable to use some other term that, 
like the German Rechtslere, may more accurately denote the science 
itself ; and for this purpose no other can be suggested than the term, 
Jurisprudence, which — though of late years it has, in our language, 
drifted somewhat from its meaning — is now generally thus used in 
other languages and not uncommonly in our own. 

Etymologically the term Jurisprudence denotes merely the science or 
doctrine of 7«s/ but the latter term — like its equivalents, rigid, recht, 
droit, diritto, derecho, etc. — is commonly used to denote not only theo- 
retical right, but also positive right, or right actually realized in the 
State by means of the law ; and the term Jurisprudence necessarily 
presents a corresponding ambiguity. The latter use of the term is, 
indeed, in our language, the most common ; and hence with us the 
term Jurisprudence is generally regarded as belonging exclusively to 
positive right, or, as we call it, the law ; and its application to theoret- 
ical right seems to carry with it some appearance of impropriety. On 
this account it has become a common usage to distinguish theoretical 
from positive jurisprudence by calling the former natural jurispru- 
dence ; and to this usage, where necessary to avoid confusion, no 
objection can be" made. But in this work, unless the contrary is ex- 
pressed, we uniformly use the term in the sense of theoretical or nat- 
ural jurisprudence. 

§ 39. Division of Jurisprudence or Right. 

The term Right, as we have observed, is but an expression for rights 
in the aggregate, and it may relate either to private or individual rights 



or to the rights of the State. Accordingly, right is divided into two 
parts, called respectively, after the Roman jurists, private right (jus 
privatum) and public right (jus publicum), the former of which deals 
with private rights, the latter with the rights of the State. 

Public right is commonly regarded as referring only to the rights of 
the State as against its subjects, or, as they may be called, its internal 
rights ; but according to its real sense, and the definition given of it, 
it would seem to include also the external rights of the State, or the 
rights of the State as against other States. But the latter constitute the 
subject matter of International Right, or the Right or Law of Nations 
(jus gentium), which, for many reasons, it will be better to consider as 
an independent subject of investigation. Jurisprudence will, there- 
fore, be regarded in our present investigation as dealing with three 
subjects, namely, (1) Private Right; (2) Public Right, regarded as 
denoting the internal rights of the State ; and (3) International Right, 
or the right or law of nations. The last two constitute the peculiar 
subject matter of the theory of the State. 

§40. Jurisprudence or Right, a Department of Morality. 

But Right itself, or Jurisprudence, is but a branch of a more exten- 
sive science, namely. Morality or Ethics, which comprehends not only 
the subject of duties but also that of rights or justice. The latter sub- 
ject is indeed so broadly distinguished from the rest of Morality that 
it may with convenience be considered independently ; but its connec- 
tion with Morality generally must be borne in mind, if for no other 
purpose than that of realizing the fact that the problem of rights, pri- 
vate and public, is purely a problem of Morality, or of right and 
wrong. For the term Right carries with it as an essential part of its 
signification or connotation the quality of rightness, and hence, ex vi 
termifii, all rights are moral rights, and there can no more be a right of 
any other kind than there can be a two-sided triangle or a square circle. 
Hence, in inquiring as to the nature and extent of the powers of the 
State, the subject of our investigation is not the mere historical prob- 
lem of defining the actual powers that are or have been exercised by 
diflt'erent governments, but, in the accurate and profound language of 
Hobbes, it is to determine "what are the rights or just power or 
authority of a sovereign." * 

§41. Morality Distinguished from the Philosophy of Morality. 

But at this point we are confronted by an apparently formidable 
problem, namely, the metaphysical problem as to the nature of the 
distinction between right and wrong. This subject is one of great 
importance and of absorbing interest to the philosophic mind ; but for- 
tunately the solution of the problem is unnecessary to the jurist or the 

* Leviathan, Introduction. 


moralist, whose task is to determiue, not the abstract nature of the 
quality of rightness, but its presence or absence in given cases. Hence 
the question of the absti'act nature of the distinction between right and 
-.vrong belongs rather to the Metaphysics of Morality than to Moralitj^ 
itself, which is concerned only with a practical question of deter- 
mining as to the rectitude of human conduct. To assert that the 
solution of this question must abide the solution of the metaphys- 
ical problem — hitherto unsolved, and of which, as of other meta- 
physical questions, there appears no promise of a solution — would 
be in effect to assert in the face of history that man is incapable of 
moral development, and, consequently, of civilization. But, on the 
contrary, it is manifest that the metaphysical problem was itself sug- 
gested by the previously existing moral judgments of mankind, and 
could not present itself as a distinct subject of inquiry until Morality 
had already been highly developed. Similarly, men reason without 
understanding logic, and logic itself must be developed before the met- 
aphj'sical question as to the ultimate grounds of human knowledge can 
arise. But, as Locke says, "God did not make man a mere two-legged 
animal and leave it to Aristotle to make him a reasonable creature." 
And with like reason it may be said that fortunately it has not been 
left to the metaphysicians to make him a moral being. 

There is also another interesting problem that seems to touch upon 
the subject of our investigations, namely, the psychological problem as 
to the faculty or faculties by which moral obligations and the necessity 
of observing them are perceived. But this, also — though more suscep- 
tible of solution than the metaphysical problem — does not fall within 
the scope of our inquiry, but belongs rather to the Philosophy of Moral- 
ity than to Morality itself. For our task is to determine neither the 
abstract nature of the quality of rightness, nor the nature of the fac- 
ulty by which we perceive the obligation to conform to it, but merely 
the rectitude of this or that course of human conduct ; and in this 
investigation it is manifestly indifferent what metaphysical or psj^cho- 
logical theory we adopt, provided only it assert the reality of moral 
distinctions and the possibilitj^ of perceiving them. 

It will be sufficient, therefore, to say that we use the terms, right and 
wrong, in their ordinary and familiar acceptation, as denoting a uni- 
versal and apparently necessary conception of the human conscious- 
ness, and that the reader is at liberty to adopt a more specific definition, 
according to the theory to which he may incline — as, for instance, that 
it consists in conformity to the will of God, or to nature, or to the uni- 
versal order, or to the end or destiny of man, or to general utility, or 
the welfare of mankind. 

The above considerations, though sufficiently obvious, have not gen- 
erally been observed ; and through this neglect have resulted the most 
deleterious consequences to Jurisprudence and to Morality generally. 
For to inquirers on these subjects almost the first questions that present 



themselves are the metaphysical and psychological problems, and these 
seem imperatively to demand a solution and almost invariably to ab- 
sorb the attention of the inquirer. The result is that some waste their 
labors in the production of unsatisfactory theories, and others, dis- 
couraged by failure and impatient to approach the practical questions 
involved, cut the Gordian knot by denying the existence of any mate- 
rial distinction between right and wrong. Of the latter, the most con- 
spicuous instance is presented by the theory of Bentham and Austin 
and of the modern English school of jurists, which is based wholly 
upon the assumption that the distinction between the just and the un- 
just is merely of human imposition. 

§42. Of the Moral Standard. 

Questions of right and wrong, in the concrete, present in general but 
little difficulty, and consequently there is a' remarkable unanimity in 
the moral judgments of men in the same state of civilization, and even 
in ditferent ages and countries, with reference to what may be called 
the fundamentals of morality. No one, for instance, can contemplate 
the crime of murder or robbery without disapprobation ; or, to refer to 
less extreme cases, there are none who will deny the obligation to re- 
turn a deposit, or to compensate for an injury, or to repay a loan. 
These and similar principles are universally admitted, and in fact fur- 
nish the crucial test by which all theories of morality are to be judged, 
and to which the advocates of all theories appeal. But the difficulty 
consists in expressing satisfactorily the ultimate test or criterion by 
which conduct is to be judged ; and on this point the widest diflFerence 
of opinion exists. To me, however, it seems that the solution of the 
problem is to be found in the consideration that there are, in fact, two 
standards intimately related, but between which it is necessary to dis- 
tinguish, namely, the theoretical and the practical, the former consisting 
in rational principles by which our judgments should be formed and 
our conduct governed so far as it may affect ourselves only ; the latter, 
— as we have explained — in the common moral convictions, or general 
conscience, or, in other words, the positive morality of the commu- 
nity, by which, in matters affecting others, our conduct ought to be 
determined. These standards are not antagonistic, or even entirely 
independent of each other. For, on the one hand, it is a manifest 
principle of theoretical morality that the established morality should 
be observed ; and, on the other, such is the constitution of human 
nature, that, just as the cannon ball nearly coincides with the trajec- 
tory curve as scientifically determined, so positice tends to conform, 
and in civilized countries substantially conforms to theoretical morality. 
The former has already been considered,* and it only remains, there- 
fore, to consider the latter. 

* Supra, p. 236. 


§ 43. Of the Theoretical or Rational Standard. 

With regard to the theoretical standard, it is obvious that reason is 
the sovereign judge of conduct, and that all assumed principles of 
morality must be submitted to the test of its judgment. Hence the 
standard of right and wrong must consist of principles or propositions 
derived either from intuitive reason or from the rational investigation 
of the nature of man and of his environments and experience, (a) 

Of these principles — besides that of Liberty, which will be fully con- 
sidered hereafter — there are two, more general in their character and 
application than others, that may be conveniently considered here, 
namely, the principle of Necessity and that of Utility. The former is 
rudely expressed in the maxim, Salus pnpuli suprema lex, and may be 
more accurately expressed in the proposition that whatever is essential 
or necessary to the existence and well-being of man or society is at 
once right and obligatory ; the latter, in the proposition that whatever 
conduces to the welfare or happiness of mankind is, if not obligatory, 
at least right. 

(1) Of the two principles, that of Necessity, though less extensive in 
its scope, is of the greater practical utility, and from it, as we shall see, 
nearly all the admitted principles of political science are derived. It 
may, therefore, be said to constitute the foundation of the science. 

(2) The principle of Utility, in the form in which it has been generally 
asserted — namely, that of Utilitarianism — is altogether without definite 
signification, and cannot either be accepted as true or asserted to be 
altogether false ; but it may be asserted of it, as of indefinite theories 
generally, that its influence, both in theory and in practice, upon polit- 
ical science and morality, has been greatly deleterious. It will, there- 
fore, be necessary to determine accurately the signification of the prin- 
ciple of Utility, and to inquire how far it may be accepted as a rule of 

To say that anything is useful is, in itself, altogether unmeaning. To 
give the expression definite signification it must be stated for what and 
to whom it is useful. Leaving out of view the former problem — which, 
it may be said in passing, involves the whole subject of the destiny of 
man and the end of human conduct — it is obvious that the term usefvl, 
or utility, is a relative term, implying some man or men whose utility is 
considered, and that its meaning must difter essentially according to the 
correlative to which it is applied. Thus, obviously, the mere private 
utility of the individual cannot be adopted as the test ; and we must 
also reject the principle that the happiness of the majority or the great- 
est good of the greatest number is to determine ; for it cannot be 
asserted that it is right that the happiness of any innocent man should 
be sacrificed to that of any other man or men, except in cases where 
there is an obligation on his part to submit to such sacrifice and a cor- 
responding right of such others to exact it. We must also reject the 
theory of utility as commonly received, which is that general utility is 


the test. For the term general utility is indefinite, and we cannot deter- 
mine from it tlie number or class of individuals whose welfare is to be 

There remains, therefore, but one form of the principle to be consid- 
ered, which is that the happiness or welfare of all — that is, of every 
individual — must be accepted as the test of right, and which may, 
therefore, be called the theory of universal utility ; and this, indeed, 
is the only form in which the principle is not obviously false. For to 
assert that anything is useful to the community, or to mankind, or to 
any other class, is to assert that it is useful to every individual of the 
class referred to. Otherwise, if we speak correctly, we must specify 
the individuals or class of individuals to which the proposition is in- 
tended to apply ; as, for instance, that it will be useful to a majority, 
or to two-thirds, or three-fourths, or to some other proportion. Hence 
the only form in which the principle can be received is that in which 
it asserts that whatever tends to the welfare of every individual in the 
community must be accepted as right. But even in this form the prop- 
osition is still indefinite. For when we speak of any course of conduct 
as right, we may mean either that it is imperatively right, or obliga- 
tory, or that it is merely permissibly right, i. e., not wrong. In the 
latter sense the proposition expresses, not the notion of duty, but 
merely that of liberty. In the former it expresses the notion of obliga- 
tion, and in this sense I can conceive of no principle on which the 
pi'oposition can be asserted to be true. 

It is, however, assumed in all theories of morality that the observ- 
ance of right must necessarily tend to the happiness and welfare of the 
individual and of mankind generally. And from this it may be in- 
ferred that the welfare of mankind is a necessary consequence of right 
conduct, and, therefore, if not of the essence, at least a property of 
right ; and hence, that whatever is pernicious to any one is wrong. The 
principle of utility, therefore, in this its negative form — that is, as 
asserting that whatever is pernicious or detrimental to mankind is to be 
regarded as wrong — must be accepted ; and in this form its principal 
use is in correcting mistakes of mankind made in pursuance of some 
fancied utility. The principle, in this form, is embodied under the 
name of the Argumentum ab inconvenienti, in one of the fundamental 
maxims of the law, and there are few principles of more practical util- 
ity to the jurists. As given by Coke, the maxim is: Argume/itum ab 
inconvenienti plurimum valet in lege. And he adds : "The law tha^ is the 
perfection of reason cannot sutler anything that is inconvenient ;" and 
therefore he says, "NiJiil quod est inconveniens est licitum, and judges are 
to judge of inconvenience as of things unlawful." 

It is, of course, to be observed that in considering the question of 
utility regard must be had, not to particular, but to general conse- 
quences ; or, in other words, not to the effect of the particular decision, 
but to the efl'ect of the general rule. For what is right or wrong, just 


or unjust, in one case must be so in like cases ; and hence right, as well 
as morality generally, must consist of general rules applying to all 
cases of the same class. This is insisted upon by all moralists, and is 
biH a statement of Kant's Categorical Imperative: "Act according to 
a maxim which at the same time can be adopted as a universal law." 

§ 45. Of the Method and General Principles of Jurisprudence. 

It is in the highest degree important, before entering upon the sub- 
ordinate subject of the rights of the State, that we should have some 
notion of the method and general principles of general Jurisprudence, 
of which the subject of Public Right constitutes only a subordinate de- 
partment. It will be necessary, therefore, to give here a brief epitome 
of the subject. As we proceed with the work, the application and 
utility of the principles thus briefly stated, which at first may be ob- 
scure, will become clearly manifest. 

Rights are of two kinds, namely, rights of ownership and rights of 
ohlig ition. (b) To the former class belong the right of personal liberty 
and security, or of self-ownership, the right of property and the right 
of husband in wife and parent in child and vice versa ; in each of which 
cases we may say of the subject of the right, whether one's person, 
property, wife, husband, parent, or child, that, to the extent of the 
right, it belongs to the one having the right, or that it is his, or his own. 
To the other class belong all rights to the performance of obligations, 
wliether rising from contract, or delict, or ex mero jure, without the 
intervention of either — the term "obligation" being here used, in its 
strict and proper sense, as denoting a duty from one person to another, 
the performance of which may be rightfully exacted by the obligee or 
person to whom it is owed. A mere duty, without such corresponding 
right to exact its pei'formance, properly speaking, is not an obligation. 
Thus, where one owes to another money, or has the property of an- 
other in his possession, either unlawfully or as a mere bailee, or has 
injuriously damaged another, there arises upon his part an obligation 
to pay the debt, or to restore the property, or to compensate the party 
injured, as the case may be ; and there is also a corresponding right in 
such other party to exact the performance of the obligation. But the 
duty upon the part of a man to assist a neighbor or friend, or to perform 
a charitable act, is, in general, a mere duty, and not an obligation ; nor 
is there any right upon the part of any one to exact its performance. 

If we analyze the notion of a right of the former class — as, for in- 
stance, a right of property — it will be found to consist merely in the 
liberty ov power of the owner to act freely, to the extent of the right, 
witli regard to the thing owned, according to the dictates of his own 
will, and free from interference by others ; and this we will find to be 
also- true in the case of rights of obligation. For such a right, in its 
ultimate analysis, consists also in the liberty or power to act freely, to 
the extent of the right, with reference to its subject; which, in this 


case, is euphoniously said to be the obligation, but is in reality the 
obligor himself, Avhose free action the obligee, by virtue of his right, 
has the liberty or power to control if he shall choose to do so. Hence, 
obviously a right consists in the liberty or power of acting {facultas 
agendi), in a specitic case, or class of cases ; and the aggregate of a man's 
rights is therefore but another expression for the general liberty to 
which he is justly entitled. 

It is obvious, however, that the liberty or power to act, in which 
consists the essence of the right, is not to be understood as actual 
power or liberty. For it is clear, on the one hand, that a man may be 
prevented from exercising a right, and the riglit nevertheless continue 
to exist — as, for instance, where he is unjustly imprisoned or deprived 
of his property — and on the other, that he may have the actual liberty 
or power to interfere with the rights or liberty of another without hav- 
ing the right to do so. The liberty or power in which a right consists 
must, therefore, be understood as consisting in rightful or jural liberty 
or power — that is, liberty or power which he rightfully has, or which it 
is right that he should have. 

In this definition, it will be observed, the terms "liberty" and 
"power" have been inditi'erently used. These, in a certain sense, are 
apparently opposed in meaning ; but, in this connection, and in their 
strict and proper sense, are substantially synonymous — the difference 
between them corresponding merely to that between the terms "may " 
and "can," in each of which two notions are signified, namely, the 
absence of restraint and ability to act ; for, obviously, one cannot have 
the liberty to act without the ability, or the ability without the liberty. 
Hence, in logical phrase, the difference between the terms is, that the 
term "liberty" denotes the absence of restraint and connotes ability 
to act ; and conversely, the term "power" denotes the latter and con- 
notes the former. In all cases of rights of obligation, however, tlie act 
wliich the owner of the right has the liberty or power to do is to coerce 
another, and hence there is implied in it a power or control over the 
obligor, and in common language this is, perhaps, the idea most prom- 
inently suggested by the term "power." But in this case, as in the 
case of riglits in rem, where no control over others is necessarily im- 
plied, the term "liberty to act" is equally applicable, and, on account 
of the ambiguity of the term "power," is, in general, to be preferred 
as the more appropriate term. Accordingly, we will define a right as 
the jural, or rightful liberty to act (facuUas agendi), in a given case or 
class of cases ; and riglits, in the aggregate, or right, as jural liberty, 
or the general liberty to which one is justly entitled. 

It follows, therefore, that the ultimate problem presented h\ juris- 
prudence is to determine the extent of the rightful or jural liberty of 
the individual. 

But as, in general, this liberty exists in every case in which one may 
not be rightfully restrained by other individuals or the State, and as 


there is always a presumptioa in its favor, the immediate problem is to 
determine the exceptional cases in which the liberty of tlie individual 
may be rightfully restrained. 

But the rightful liberty or power to restrain the free action of an in- 
dividual, where it exists, like the liberty or power to do any other act, 
is, ex m termini, a right ; and it follows, therefore, as a fundamental 
principle of jurisprudence, that the rightful liberty of the individual is 
limited, and limited only, by the rights of other individuals or of the 

And as the presumption is always in favor of liberty, the burden 
of proof is in all cases obviously upon the party asserting the right. In 
this respect no distinction can be made between the rights of individ- 
uals and the rights of the State ; but where a right is asserted in either 
which derogates from the liberty of the individual, it cannot be admit- 
ted unless a sufficient reason can be given for its existence. 

Tlie propositions above stated determine what may be called "the 
Method of Jurisprudence." This is, in substance, the method of 
Hobbes, who has been followed in this respect, and in the theory of 
the State generally, by Kant and his followers. It is also the method 
of Herbert Spencer, as explained both in his Social Statics and Justice. 
The fundamental principle of Mr. Spencer is "that every man may 
claim the fullest liberty to exercise his faculties compatible with the 
exercise of like liberty by every other man." Or, as he elsewhere ex- 
presses it: "Everyman has freedom to do all that he wills provided 
that he infringes not the equal freedom of any other man ; " and ac- 
cordingly every asserted right is to be proved "by showing tliat the 
particular exercise of the faculties referred to is possible without pre- 
venting the like exercise of faculties by other persons." (c) 

According to Hobbes and Kant the power or right of. the State is 
absolute or unlimited, which, as we have seen, is a manifestly untenable 
proposition. According to Spencer it is limited by the law of equal 
liberty. But this also is untenable ; for the very existence of private 
rights, ex vi termini, imports an inequality of liberty. All that can be 
said is that the rights or rightful liberty of each is limited, and limited 
only, by the rights of other individuals or of the State, {d) 

§ 46. Of Certain Principles of Right. 

There are numerous subordinate principles bearing peculiarly upon 
the determination of private riglits which — tliough not properly belong- 
ing to the immediate subject of our investigations, viz., the rights of 
the State — must be briefly referred to. 

(1) Of these one of the most important is what may be loosely called 
"the law of equal liberty" — a principle uniformly asserted but not 
accurately expressed by jurists and philosophers. It may be formu- 
lated and demonstrated as follows : 

In determining whether a right exists in any one which derogates 


from the liberty of another, or, in other words, wliether restraint may, 
in any given case, be riglitfully imposed, the obvious principle suggests 
itself that such a right cannot be affirmed unless it can be equally 
affirmed of all others standing in the same jural relations ; for the bur- 
den of proof lies upon him who asserts the existence of such a right, 
and according to the hypothesis it is impossible to assign any reason 
why such a right should exist in one case and not in all similar cases. 
The principle may, therefore, be expressed by saying that the jural or 
rightful liberty of all men in the same case is equal ; or, in other words, 
that restraint cannot be rightfully imposed upon any one unless it may 
be equally imposed upon all others in the same case — meaning by the 
term "the same case" a similarity of circumstances material to the 
question of right. Thus, the circumstance of infancy, or of mental 
unsoundness, clearly distinguishes the case of the infant or non compos 
from that of the ordinary man, and so the circumstance that one has 
manufactured an article of personal property clearly distinguishes him 
from others. But obviously the principle can have no application to 
the State, which stands in a case peculiar to itself. 

(3) Another principle is that of restitution in case of delict — i. e., 
that where one is deprived of his property, or liberty, or other right, 
he should be restored to its enjoyment. And it seems equally obvious 
that, where restitution in kind is impracticable, restitution in value or 
compensation should be made, and the injured party restored, as far as 
possible, to his original condition. 

(3) Another and most important principle is that in certain cases 
custom must be considered in the determination of rights. This is not 
only true in the case of contract, where custom is important in deter- 
mining the intention of the parties, and in cases of delict, where it is 
important in determining the question of negligence, but it is also true 
generally that custom should be observed as law, and this is, in fact, its 
most important aspect. Its efficiency in this respect is generally attrib- 
uted to the fact that it necessarily implies a general consent or agree- 
ment as to the particulars to which it relates, Avhich is undoubtedly 
true. But the most important reason for its efficiency is that human 
nature is so constituted as to act involuntarily with reference to custom, 
and hence that a violation of custom must result in a disappointment 
of men's legitimate expectations; and on this account, and because it 
is also the most perfect expression of the general will, custom should 
have a superior efficacy to legislative enactments. And this, in fact, is 
substantially the case ; for, with regard to private right, statutes be- 
come operative only when they conform to an existing custom or gen- 
erate a new one. Otherwise they may for a while, at the expense of 
infinite injustice and hardship, be imperfectly enforced, but ultimately 
they must give way and become obsolete. Thus, if we compare the 
common law, or rather the arbitrary and accidental part of it (the jus 
civile), of the time of Edward III, or of Elizabeth, or even of Black- 


stone, •with the existing law, it will be found to have become almost 
altogether obsolete, and the instrumentality by which the change has 
been efiected is almost exclusively custom. So true is the observation 
of Coke that "Leges humanw nascuntur vivunt et moriuntur." Hence, the 
assertion of Mr. Austin and his followers that custom becomes operative 
only when adopted by the government, cannot be maintained, but it 
will be nearer the truth to say that laws become operative only when 
they become custom, and for so long only as they continue to be so. 

But custom is not conclusive in the determination of rights ; for it is 
an obvious principle of jurisprudence that it is not to be observed 
unless reasonable. And hence, customs enter into the determination of 
rights only as an element in the problem, and their effect is to be deter- 
mined by independent principles of right. 

In this way custom is constantly rectified by reason, and the positive 
law by means of custom undergoes a rational development. Hence, the 
development of the law proceeds, not from the arbitrary and accidental 
elements in which it seems, and is commonly supposed to originate, but 
from justice, or reason, by which the arbitrary and accidental part of the 
law is slowly but surely eradicated. 

(4) Another obvious principle is that of contract, which is usually 
expressed in the maxim pacta qwelibet servancld sunt, "compacts are to 
be observed." This principle is one very generally received, and it has 
been thought by Hobbes, Locke, Kousseau and others, to constitute a 
suflacienl basis for the theory of the State. But a very little consideration 
will be sufficient to show that the principle thus generally stated cannot 
be admitted. For there is no system of jurisprudence, positive or natural, 
that has affirmed, as a universal proposition, that contracts should be 
enforced. Thus, in our own law, contracts without consideration are not 
enforced, and in courts of equity inadequacy of consideration is regarded 
as sufficient reason for refusing specific performance ; and in the Roman 
law a certain degree of inadequacy is sufficient to avoid the contract. So 
both in our own and in the Roman law contracts for penalties and for- 
feitures are not enforced. And many other instances might be cited in 
which the principle is not observed, (e) 

The true principle as to the obligation of contracts would seem to be 
the same as that applying to the case of delict, namely, that no man should 
be permitted to be injured, or placed in a worse position by the act of 
another without compensation. For the same rule that would forbid any 
one to deprive another of his property, or liberty, by force or fraud, equally 
forbids him to do it by a promise, even honestly made ; and the same 
rule of compensation would seem to apply, namely, that the injured party 
shall be restored by the other to his original position. 

(5) There is another important element in the determination of rights, 
to which we will briefly refer, namely, that of laws or statutes. These are 
mere acts of men who are distinguished from other men only in being 
vested with the right of legislation, and they belong, therefore, to the 



same generic class as grants, and other expressions of human will. Like 
private acts, therefore, they depend for their validity upon the right of the 
legislature over the matters to which they relate. Wherever it is within 
the right of the legislator to determine any matter, the expression of his 
will with regard to it is conclusive ; and rights may, therefore, originate 
in legislation as in contract, or delict; but if a law is in excess of the 
rightful power or right of the legislator, or, to use a technical expression, 
is ultra vires, it has no more force or validity in determining rights than 
the act of a private individual. The existence, or non-existence of rights 
cannot, therefore, be affirmed from the mere enactment of laws, but must 
depend upon the existence of a precedent right in the legislator to deter- 
mine the matter to which they relate ; and this is obviously true whatever 
may be assumed with reference to the extent of the rights of the State. 
For, even if it could be assumed that the right of the State to create, or to 
destroy rights in private individuals is unlimited, the assumption could be 
justified only as a principle of natural reason, and the laws enacted by 
the State would thus derive their efficacy from the same principle. 

Laws, in this respect, are, therefore, analogous to contracts, grants and 
other expressions of human will, and also to customs, and are to be re- 
garded, not as establishing principles of right, or as entering into the 
definition of jus, or the law, but as mere elements in the problem of 
determining rights. 

(6) Obviously the same distinction must be made between theoretic and 
positive jurisprudence as between theoretic and positive morality generally 
— the former being jurisprudence, as scientifically determined, the latter, 
as generally received. But the principles of jurisprudence are not only 
in themselves exceptionally clear and determinate, but they have been 
painfully and perseveringly elaborated by a long succession of great jur- 
ists and philosophers from the time of Aristotle to the present day ; with 
the result that as to fundamentals, the conformity of theoretic and positive 
jurisprudence is almost perfect ; and nothing more is wanting to the per- 
fection of Positive Right, as received in modern European countries, than 
the accurate formulation of the fundamental principles implicitly con- 
tained in every existing system, and their logical development, and con- 
sistent application. 

In conclusion, it should be observed that the diflference existing between 
Theoretic and Positive Jurisprudence has given rise to two schools of 
jurists, which are known respectively as the Philosophic or Rational, and 
the Historical. These, in popular opinion, are often opposed, and indeed 
have often opposed themselves to each other ; but it is obvious, that there 
is in fact no opposition ; but that the methods of the two schools are both 
essential to the study of the subject, and that the true method combines 
them both. 

The historical method, though inapplicable to theoretical jurispru- 
dence, and other branches of pure science, is true of positive jurispru- 
dence for the reason that general recognition constitutes in fact the es- 


sential difference between the principles of positive and those of theo- 
retical right. (/) 


(a) As to the possibility of a moral science, see Locke, On the Understanding, Bk. iv, Chap, 
ill, Sec. 18-20, from which we extract the following : " Confident I am that if men would in 
the same method, and with the sameindifFerency, search after moral as they do after mathe- 
matical truths, they would find them to have a stronger connection one with another, and a 
more necessary consequence from our clear and distinct ideas, and to come nearer perfect 
demonstration than is commonly imagined." In the future as in the past, all progress in 
the moral sciences must consist in the recognition and utilization of this truth. 

It is, however, to be understood that, in matters already determined by the received or 
positive morality of the people, it is not the function of political science directly to control the 
action of government, but indirectly only, by correcting and developing the general con- 
science ; and that all the principles of theoretical jurisprudence are to be received subject to 
this qualification. To use the metaphor of Pindar, Nomas only is king, reason but his coun- 

(6) The two classes of rights are more commonly called, respectively, rights in rem and 
rights in personam. 

(c) The proposition in the text is illustrated by the argument of Fichte, Science of Law, 
p. 137. " If," he says, " reason is to be realized in the sensuous world, it must be possible 
for many rational beings to live together as such ; and this is permanently possible only if 
each free being makes it its law to limit its own freedom by the conception of freedom of all 

(d) It is admitted by Mr. Spencer that he was anticipated in his theory, or rather method, 
by Kant ; but in fact both were anticipated by Hobbes. 

"Among the tracks pursued by multitudinous minds in the course of ages," says Mr. 
Spencer, " nearly all must have been entered upon if not explored. Hence the probability 
is greatly against the assumption of entire novelty in any doctrine. The remark is sug- 
gested by an instance of such an assumption erroneously made. 

" The fundamental principles enunciated in the chapter entitled ' The Formula of Jus- 
tice,' is one which I set forth in Social Statistics : ' The Conditions Essential to Human 
Happiness Specified and the First of Them Developed,' originally published at the close of 
1850. I then supposed that I was the first to recognize the law of equal freedom as being 
that in which justice, as variously exemplified in tlie concrete, is summed up in the abstract. 
I was wrong, however. In the second of two articles entitled ' Mr. Herbert Spencer's Theory 
of Society,' published by Mr. F. W. Maitland (now Downing Professor of Law at Cam- 
bridge) , in Mind, Vol. viii (1883) , pp. 508, 509, it was pointed out that Kant had already enun- 
ciated, in other words, a similar doctrine. Not being able to read the German quotations 
given by Mr. Maitland, I was unable to test his statement. When, however, I again took 
up the subject, and reached the chapter on ' The Formula of Justice,' it became needful to 
ascertain definitely what were Kant's views. I found them in a recent translation (1887) by 
Mr. W. Hastie, entitled The Philosophy of Laic, An Exposition of the Fundamental Principles 
of Jurisprudence as the Science of Right. In this, at p. 45, occurs the sentence : ' Right, there- 
fore, comprehends the whole of the conditions under which the voluntary actions of any 
one Person can be harmonized in reality with the voluntary actions of every other Person 
according to a universal Law of Freedom.' And then there follows this section : 

" ' Universal Principle of Eight. 

" ' Every Action is right -vihich. in itself, or in the maxim on which it proceeds, is such that 
it can co-exist along with the Freedom of the Will of each and all in action, according to a 
universal Law. 


" ' If, then, my action or my condition generally can co-exist with the freedom of every 
other, according to a universal Law, any one does me a wrong who hinders me in the per- 
formance of this action, or in the maintenance of this condition. For such a hindrance or 
obstruction cannot co-exist with Freedom according to universal Laws.' 

" These passages make it clear that Kant had arrived at a conclusion which, if not the 
same as my own, is closely allied to it. It is, however, worth remarking that Kant's con- 
ception, similar though it is in nature, differs both in its origin and in its form." 

(e) As for instance, thecase of Thornborrow vs. Whittaker, 2 La Eayne, 1164, where one 
agreed for valuable consideration, to pay two grains of rye corn on the following Monday, 
four on the next Monday, and so on doubling for each Monday of the year, — and the case of 
James vs. Morgan, 1 Lev., Ill, approved in Chesterfield vs. Jansen, 1 Wils., 286-295, where 
one agreed to pay for a horse a barley corn for the first nail in the shoes of the horse, two 
barley corns for the second, and so on doubling for the whole number of twenty-four ; in 
each of which the contract was held void. 

(/) In accepting the theory of the historical school of jurists, however, it is not necessary 
for us to give in our adhesion to what is called the historical method, as applied to other 
subjects — as, for instance, to political economy, or other branches of political science, in- 
cluding theoretical jurisprudence. Thus applied, the theory, as I understand it, in effect 
denies the possibility of political or moral science, and, as commonly used — as, for instance, 
by the historical school of political economists — seems to serve merely as a pretext for 
repudiating the force and validity of logical reasoning. In the true method, a thorough 
investigation of historical phenomena is, of course, essential, for the purpose, both of ascer- 
taining our premises, and verifying our conclusions ; but its fundamental principle is that 
the deductions of logic are absolutely certain, and that all true reasoning is apodictic or 
demonstrative ; and that in this respect there is no distinction between mathematical rea- 
soning, and reasoning of other kinds. At the same time, it is equally certain that conclu- 
sions thus reached are purely hypothetical, and must, therefore, depend for their absolute 
truth upon the truth of the premises, and the truth of these, of course, is always a matter of 
historical research. The whole method of reasoning, therefore, is well expressed by Bacon 
in the well-known aphorism: "The syllogism consists of propositions; propositions of 
words ; words are the signs of notions. If, therefore, the notions which form the basis of the 
whole be confused, and carelessly abstracted from things, there is no solidity in the super- 
structure ; our only hope then is, in a genuine induction," (Nov. Org., Bk. i., Aph. 14). 


The Subject of Jukisprudence Continued ; And Herein op the 
Doctrine op Natural Right. 

§ 47. Of Prevailirig Misconceptions as to the Nature of Natural Rigid. 

The subject of natural right is one of fundamental importance, and as 
many erroneous notions prevail with reference to it, it ■will require an ex- 
tended consideration. 

The term natural right, or natural law, is a mere translation of the jus 
naturale of the Roman lawyers ; and, in the Latin, the term j«s naturm is 
precisely equivalent ; but these terms are commonly translated by us by 
the expressions, "natural law" and "the law of nature;" and, conse- 
quently, the same ambiguity, as in the case of the law, is presented. 
Hence, the modern English jurists, having no other conception of law 
than as being merely legislation, suppose that the term law is here used 
in the same sense, and that to account for the existence of natural law, or 
the law of nature, a legislator must be supposed, (a) But obviously, the 
Roman lawyers, in speaking of natural law {jus naturale), which, they 
defined as the law, or jus, " which natural reason has established among 
all men," did not use the term, law, or jus, in the sense of legislation, or 
conceive that a legislator was implied by it ; nor, so far as I know, has 
any one, other than the Austinian jurists, ever done so. 

On the contrary, all that is implied by the term, natural right — which 
is but another expression for right reason — is, that there are certain 
natural principles, governing the jural I'elations of men, determined or 
established by reason. (6) 

Another very common error with regard to the nature of natural right, 
as conceived by the Roman jurists, regards it as derived from the con- 
fessedly fictitious notion of a state of nature, or of natural society existing 
without government. Tliis is the notion of Sir Henry Maine, who is 
commonly regarded by English jurists as having finally established the 
true theory of jurisprudence, by modifying, in some essential particulars, 
that of Austin ; and whose views, on account of the reputation of the 
writer, are given at length in the note, (c) But this notion is altogether 
without foundation. The Roman doctrine of the jus naturale, or jus 
gentium, as will be seen, originated with Aristotle ; and that in his mind 
it had no connection with the impossible hypothesis of a state of nature is 
sufficiently shown by his definition of man as being by nature a political 
animal, and by his conception of natural right, or as he called it, the 
nomos koinos, or common law, as being part of the law of the State. 
Which was also the view of the Roman lawyers ; who, as the author him- 



self states, regarded the jus gentium, or jus naturale, "as something be- 
longing to the present, something entwined with existing institutions." 
And this also was the view of English lawyers prior to the advent of 
Bentham and Austin. And of the truth of the doctrine, which simply 
asserts that reason, justice, or right, is part of the law, no more striking 
proof can be given than is furnished by the observation of Sir Henry 
Maine himself, on tlie part it performed in the development of the Roman 
law, viz.: that "the progress of the Romans in legal improvement was 
astonishingly rapid, as soon as stimulus was applied to it by the theory of 
natural law," and that "he knew of no reason why the law of the 
Romans should be superior to that of the Hindus, unless the theory of 
natural law had given it a type of excellence different from the usual 
one " * 

§ 48. Statement of the Doctrine of Natural Right. 

The doctrine of natural right simply asserts that there are certain prin- 
ciples of justice existing independently of human institutions, by which 
the conduct of individuals towards each other, and also that of the State, 
ought to be regulated. But this is also in effect to assert the existence of 
natural rights ; for the terms, a right, and justice, are strictly correlative ; 
whatever a man may justly do, that he has a right to do ; and hence the 
term rights, taken collectively with reference to an individual, denotes 
merely the sphere or province within which he may act freely without 
injustice. The relation of the two terms is therefore precisely expressed 
in the definition that justice consists in the observance of rights f And 
hence, to assert the existence of justice is but another mode of asserting 
the existence of natural rights. 

Of the existence of justice, and consequently of natural rights, it is im- 
possible to doubt. The conviction of their existence is so universal, so 
profoundly rooted in the belief and sentiments of mankind, and so evi- 
dently a constant attribute of human consciousness, that the argument in 
support of the proposition, except to those who expressly or in effect deny 
it, is hardly necessary ; and as to those, a sufficient refutation of their 
views may be found in the logical defects of their own arguments, to 
which we have adverted. 

To establish the doctrine of natural right affirmatively, the most 
efficacious argument consists in the simple enumeration of the many 
familiar rights recognized in every system of law, such as the right to 
personal liberty and security, or, as it may be more properly called, the 
right of self-ownership, the right of property, the right of husband in wife, 
and parent in child, and vice versa, and other rights of ownership ; and 
riglits of obligation, such as to the performance of contract, and com- 
pensation, or restitution, in cases of delict ; allof which are simply natural 
rights recognized by the State, (rf) 

The rights above enumerated are universally recognized in all civilized 

* Ancient Law, p. 75. t V- infra, p. 299. 


countries, and are In fact as susceptible of demonstration as the proposi- 
tions of Euclid ; but it will be sufficient for our present purpose to establish 
this, with reference to one of them only, viz., the right of self-ownership, 
or of personal liberty or security, from which all others are derived. 
This right is obviously essential, not merely to the welfare or happiness, 
but even to the existence of the individual, and is therefore to be ad- 
mitted ; nor can it be denied, without absurdity ; for the question, in its 
ultimate analysis, may be reduced to this simple dilemma : Does a man 
belong to himself, or to somebody else? And, obviously, the first alterna- 
tive must be accepted, unless the second can be established ; and to estab- 
lish the second, it is necessary affirmatively to show who is his master. 
If any one, he is a slave, and it will make but little difference to him 
whether his master be another individual, or the State, or rather, tlie in- 
dividual or individuals who, for the time being, wield the political power 
of the State, (e) 

Hence, as we have observed, it is a proposition universally accepted, 
that the principal end of the State is to cause justice to be observed ; or, 
in the language of the Constitution of the United States, to "establish 
justice." Hence, as we have also observed, the difference between theo- 
retical and positive right, or right as actually established under a given 
system of positive law, is merely the ditlerence between the theory of 
rights and its attempted realization, a difference not essential, but acci- 
dental merely, and which is, in fact, much less considerable than is com- 
monly supposed.* 

This proposition, which, it will be perceived, is of fundamental import- 
ance, cannot, as we have observed, be denied, without denying, also, the 
existence of natural rights ; and, accordingly, it is in fact not denied by 
the jurists of any school, except that of Austin, who at the same time 
denied the existence of rights, and of justice, otherwise than merely as 
creatures of the governmental will ; but in this they are guilty of assert- 
ing, not merely a false proposition, but a logical absurdity ; for these 
jurists, like others, have their theory of morality, viz., the principle of 
utility, and thereby assert the existence of moral distinctions, and conse- 
quently the existence of a distinction between the just and unjust, which 
are but species of right and wrong ; for to assert that certain acts of men 
are just, and certain others unjust, is but to assert that within the sphere 
of action defined by the former class of acts, men ought to be permitted to 
act freely ; or, in other words, that it is right that such liberty be accorded 
to them. But, as w>e have seen, this liberty, to which every man is justly 
entitled, is but another name for the aggregate of what are called his 
rights ; and hence, to assert the existence of any principle of morality 
whatever, whether that of utility, or any other, is ex vi termini to assert 
the existence of rights ; and to deny the latter is in effect to deny the 
existence of morality, including even the special form of morality asserted 
by them, the principle of general utility. Hence, as the jurists referred 

* See opinion of Leibnitz, infra, p. 299. 


to, though denying the existence of natural rights, do not, in general, 
differ from the rest of mankind in admitting the existence of moral dis- 
tinctions, they are clearly guilty of logical inconsistency ; and this, indeed, 
is the only plea upon which they can be acquitted of the graver charge of 
being, in tlieory, the enemies of Justice and of Morality. 

§49. Of tJie Relation Between Natural, or Theoretic, and Positive RigJit. 

Thus far, the doctrine is sufficiently plain, and is, in fact, generally ad- 
mitted. Nor can there be any doubt that there is a necessary and essen- 
tial connection between natural, or theoretic, and positive right ; but the 
more difficult problem remains, to determine the precise nature of the 
relation between them. This problem, the complete solution of whicli is 
just now the great desideratum of jural science, is too extensive to be 
adequately treated here ; but the general nature of the relation may be 
readily explained. 

(1) This relation may be expressed by saying that the principles of 
natural right, so far as they are determinate, and are known to and recog- 
nized by the people generally, or, in other words, so far as they are ex- 
pressed or manifested in the general conscience, or positive moralitj', of 
the people, constitute a part of the law ; by which is meant, that they 
constitute, not merely the material out of which, or the norm after which, 
the law is fashioned, or made, as is the opinion of Austin and others, but 
an integral, or component part of the law, in the same sense, precisely, as 
do statutes and customs. 

(2) With reference to public right, or the rights of the State, this is suffi- 
ciently obvious ; for, with regard to the State, no other law can be con- 
ceived of as governing it, than natural right, or justice ; and without this, 
as we have observed, it is impossible to show that the State has anj'' 
rights, or that any one is under obligation to submit to its power. Nor is 
this proposition inconsistent with the acknowledged existence of unwrit- 
ten constitutional law and of international law ; for these are but terms, 
denoting the law of nature, or natural right, as applied to the internal, 
and the external jural relations of State ; nor can any other definition be 
conceived of. They are either this, or they are not law ; and unless the 
former, the latter proposition, whicli is the doctrine of the Austlnian 
jurists, must be accepted. These jurists are, indeed, right in asserting 
that both constitutional and international law are merely positive 
morality ; but this is merely to assert that positive morality, or, rather, 
that part of it that is called positive right, is, in eflfect, law. 

It may, indeed, be said, and the proposition cannot be disputed, that 
both laws are based largely upon custom, or, as it is called, with reference 
to the latter, the usage of nations. (/) But, as we have seen, custom 
does not, of itself, constitute law : it is law only to the extent that reason, 
or natural right, determines it to be so ; for it is a received principle of 
jurisprudence, that the unreasonable customs carry with them no ob- 


So, also, with reference to contract, or convention, of which it is said 
international law largely consists, these are binding only because it is a 
principle of natural right that they should, in certain cases, be observed. 
Hence, contracts, like customs, are mere elements in the problem of 
international or constitutional right, and ultimately depend for their 
validity upon the principles of natural right, or justice. 

Especially are these observations true with reference to the theory of 
the Stale, the subject of our present investigations ; for here, obviously, 
we have to deal exclusively with theoretical right, unembarrassed by the 
consideration of contracts, customs, laws, or other historical facts, except 
in the abstract, as elements of the problem. 

(3) But, with reference to private right, the question is more compli- 
cated ; for here we have to take into consideration, not only customs, 
but also judicial decisions and statutes, or legislative acts ; and these 
present questions of great difficulty, which cannot here be considered at 

It will be sufficient, however, for our purposes, to say, with reference 
to judicial decisions, or precedents, that they are but a species of custom, 
and rest for their binding force, upon the same principle ; and, with refer- 
ence to statutes, or legislative acts, that they are but the acts of men, and, 
like contracts, or other human acts, derive their authority solely from the 
right of the men enacting them to dispose of the subject matter to which 
they relate : if within the right of the legislator, they are valid, and 
otherwise not. Hence, statutes and judicial precedents, like the acts of 
private individuals and customs, are mere elements in the problem of 
private right, and ultimately depend for their validity upon the principles 
of natural right, and can have no other foundation, and hence, to assert 
their validity is, in effect, to assert the existence of natural right, Hobbes 
is therefore right in asserting not only that "tho law of nature is a part 
of the civil law of all the commonwealths of the world," but that 
"reciprocally, also, the civil law is a part of the dictates of nature ; for, as 
he says, justice, that is, performance of covenant, and giving to every man 
his own, is a dictate of nature, and every subject in a commonwealth 
hath covenanted to obey the civil law." Hence he says, " The civil and 
natural laws are therefore not different kinds, but different parts of law ; 
whereof, one part being written, is called civil, the other, unwritten, 
natural." * 

Of the truth of our proposition, that natural law is part of every system 
of positive law, or, in the words of Hobbes, that it is a part of the civil 
law of all commonwealths of the world, there cannot therefore be any 
doubt, and the chief difficulty of men in conceiving it is in the failure to 
observe that what we call the law consists of several essentially diflferent 
parts. These consist of the criminal and the civil law, and the latter of 
the law of civil procedure, and the law of private right ; and the last, 
again, of the doctrine of rights, or, as we may call it, right, and of the 

*L€V., 124. 

PROC. AMER. PHIL08. 80C. XXXIV. 148. 2 L. PRINTED NOV. 1, 1895. 


doctrine of actions, or remedies for the enforcement of rights. Right, or 
the doctrine of rights, as we have defined it, constitutes the substantive 
part of the law, for which all the other parts exist ; which accords with 
the division of the law by Bentham into substantive and adjective law. 
Our proposition is to be understood, therefore, as asserting simply the 
identity of the substantive law, or the doctrine of rights, with natural 
right : and the correctness of our reasoning may be very readily verified 
by comparing the different systems of law prevailing in modern Europe ; 
in all of which the substantive part of the law, or the doctrine of rights, 
will be found to be substantially identical : so that a man may travel 
throughout all the countries of the civilized world, without finding his 
rights substantially varied. Every wliere, his rights to personal liberty and 
security, to his property, to the payment of debts due him, and the per- 
formance of other contracts, and to compensation, or restitution in case of 
delict ; and, in short, his rights generally, as enjoyed by him at home, 
will be recognized. 

(4) This view of the nature of the private right is, in fact, verified by 
the early history and the subsequent development of every system of law. 
In all countries, positive law commences merely with the establishment 
of a jurisdiction, or power to declare justice, or right, (in the words of 
Magna Charta, justitiam vel rectum) in controversies presented for decis- 
ion ; and the law of private right consists merely of the principles of 
justice, or natural right, which, of course, includes the observance of ex- 
isting customs. Afterwards, the law is modified by new customs, and 
especially by the custom of the courts, or judicial precedents ; but it is 
only at a later period, and until modern times very sparingly, that the 
law of private right is materially affected by legislation. In the begin- 
ning, as justly observed by Sir Henry Maine, legislation is an unknown 
phenomenon. "It is curious," he says, in a passage already partly 
quoted, "that the further we penetrate into the primitive history of 
thought, the further we find ourselves from a conception of the law which 
at all resembles a compound of the elements which Bentham determined. 
It is certain, that, in the infancy of mankind, no sort of legislature, nor 
even a distinct author of law, is contemplated, or even conceived of ;" 
and he adds, "Zeus, or the human king on earth, is not a law maker, but 
a judge." * 

From this beginning, it is a well-known historical f\ict, that both in our 
own and in the Roman system, the law has been developed mainly by 
the decisions of the courts, and is therefore an expression, not of the will, 
but of the judgment, or conscience, of the State. In this development, 
legislation, until recently, has had but little part ; and it is to be regarded, 
not as an essential or necessary element in the law, but merely as a means 
of modifying its natural development. 

The truth of the theory of the Historical School of jurists — as applied 
to positive jurisprudence — must therefore be admitted by all who are 

* Ancient Law, chap. i. 


familiar with the law ; and those who are not thus familiar may readily 
satisfy themselves of the proposition by referring to the list of rights that 
we have given above. These, as we have observed, are not only suscep- 
tible of demonstration but are universally received in all civilized coun- 
tries, and the principles by which they are determined are in fact rec- 
ognized everywhere as part of the positive law. So that to this extent, 
in the modern European world, the dream of Cicero is fully realized : 
"Non erit alia lex Romce, alia Athenis ; alia nunc alia posthac, sed et apud 
omnes gentes, et omnia tempora una eademque lex obtinebit." And in this 
general recognition of natural rights is to be found the essential char- 
acteristic of our advanced civilization. Nor is it extravagant to say 
that this is a law written by the finger of God, or, for those who prefer 
the expression, by the finger of nature, upon the heart of man — not 
meaning thereby that it is written upon the heart of each man so as to 
be discerned without reasoning, but that it is the nature and constitu- 
tion of man in the progress of civilization to recognize and under- 
stand it. 

(5) Our proposition, it will be observed, asserts that natural right con- 
stitutes an integral part of the actual law of every country. Those, 
therefore, who regard it merely as the matei'ial out of which, or the norm 
after which, the law ought to be fashioned, in effect deny the proposi- 
tion, and also, in effect, deny the existence of natural right, which, 
from its essential nature, must be regarded as asserting its own para- 
mount obligations over government as well as over individuals. But 
to this class belong many of the theoretical or philosophical, as distin- 
guished from the historical jurists, of modern Europe. These accept 
the doctrine of natural right without reservation, but, owing to their 
want of familiarity with the positive law, or to other causes, do not 
seem fully to have grasped its significance. The true expression of the 
doctrine, I repeat, is that justice, or natural right, so far as its princi- 
ples are determinate, constitutes in every commonwealth, not merelj^ 
an ideal to be attained by legislation, but an integral or component part 
of the actual or positive law of the land, as binding on the courts and 
the State generally, as any other part of the law, and that its violation 
by either is not only unjust but unlawful ; and that this is to be under- 
stood not merely as a philosophical theory but as a received principle of 
every system of positive law. But the writers referred to, while, in 
some respects, expounding admirably the principles of natural right, 
and showing by actual demonstration their clear and definite character, 
seem to assume that they are not in fact law, and can become law only 
by some sort of legislative transmutation. 

Thus Kant — in his celebrated definition of the several powers of the 
State, namely, the legislative, the executive, and the judiciary powers, 
which we have already quoted — in efiect asserts that the law is alto- 
gether the expression of the will of the legislative power. And so 
Bluntschli, referring to the theory that the State should be merely a 


legal State (rechts-stat), i. e., that its functions should be confined merely 
to the administration of justice, says that in such case " the State would 
at last become a mere institution for administering justice, in which the 
legislative power would establish the legal rules, and the judicial power 
would protect them and apply them to particular cases ; " which is in 
efl;*ect but a different expression of the proposition asserted by Kant. 
And the same prejudice seems to be entertained by many other 
writers, (gr) 

But obviously in this they are inconsistent, for nothing can be clearer 
than the two propositions — one of principle, the other of fact ; first, that 
if there are any principles of natural right sufliciently definite and suf- 
ficiently known to be observed, it is right that they should be observed ; 
and secondly, that in fact they are substantially observed in all systems. 
The true test or criterion of the jural or legal nature of such principles, 
therefore, is not the will of the legislator, but general recognition by 
the people ; when they are thus recognized they become, ipso facto, 
part of the law. Hence it is a principle universally received by jurists 
that custom is part of the law, and that in fact the law consists mainly 
of customs. 

(6) This is the doctrine of the so-called historical school of jurists, of 
whom the most distinguished representatives are Hugo and Savigny, 
and wliich, indeed, is but a formulation of the views of practical jurists 
genei'ally. According to this doctrine, as expressed by Mr. Ahrens, 
"the source of right (that is, positive right, or the law) is placed, not 
in the individual reason, but in the national conscience, as successively 
existing in history."* And this is unquestionably the true doctrine. 
For to be observed as a common rule obligatory upon all, the prin 
ciples of right must be generally recognized, and hence such gen- 
eral recognition consiitutes the test or criterion by which the prin- 
ciples of positive right are to be distinguished. The proposition, 
however, it will be observed, does not assert that the general recog- 
nition of a given principle as a principle of natural right necessarily 
makes it such. The general consensus of the moral convictions of 
men derives its authority partly from the necessity of observing cus- 
tom, but chiefly from the presumption it gives rise to, that it is in fact 
right. But it is, within certain limits, competent for the legislature to 
entertain the question whether the principle asserted be true, and if not, 
to correct it. And this in general equallj^ belongs to the function of 
the judge — the only restriction upon him being that he is bound to 
decide, not according to the exigencies of the pariicular case, but 
according to the effect of the rule. And this accords with the principle 
explained in a former chapter, that the interference of the State should 
not be extended to cases where the desired end may be etl'ected by the 
spontaneous action of natural social forces. 

(7) Hence, to sum up the argument, if it be true, as we have sufliciently 

* Cours de Droit Naturel, p. 22. 


established, that in every society or State a body of principles govern- 
ing the jural relations of men, or, in other words, a system of private 
right, is naturally and spontaneously developed, and that these princi- 
ples are, in the main, rational and just, and are generally recognized, 
not only by the particular people, but by all peoples of the same grade 
of civilization, and to a considerable extent by all peoples, civilized and 
uncivilized, and that such principles are universally regarded by the 
people as the criterion by which their just rights are to be determined, 
and if it be further true that no government is strong enough to disre- 
gard, except to a limited extent, these jural convictions of the people, 
or to violate the rights believed by the people to be guaranteed by them, 
and that in fact all governments hold their power, and even their ex- 
istence subject to the condition of substantially observing them, then it 
must inevitably follow, first, as a historical fact, that these principles, 
so far as they are thus recognized, must be and in fact are, in theory 
recognized and in practice substantially observed by all States, and 
hence constitute an integral part of the law ; and secondly, that this is 
not an accidental but a necessary fact or phenomenon resulting from 
permanent laws of human nature, to which philosophy must conform 

I have dwelt largely on this point because, though the proposition 
contended for is obvious and simple, there seems to be an inveterate 
prejudice to the contrary, from which even those who have convinced 
themselves over and over again of its falsity can hardly escape. Hence, 
whenever I assert the doctrine in explicit terms, I am conscious that, 
to many readers, it will appear paradoxical ; and I have, therefore, 
being convinced that herein must consist the first step in the intelligent 
study of political science, labored with anxious care both here and else- 
where throughout the work, and at the risk of tediousness, to establish 
the true doctrine of natural right, both directly by demonstrating its 
abstract truth, and by showing it to have been substantially realized in 
every system of law, and indirectly by demonstrating the absurdity 
of every conceivable contradictory theory. For, as in the past, the 
noble development of jui'isprudence as exemplified in the Roman and 
in the English law was due entirely to the acceptance and application 
of this doctrine, so the present state of stagnation into which it has 
fallen is to be attributed to its neglect ; nor in my opinion is there any 
hope of a revival either of jurisprudence or political science generally, 
until the doctrine of natural right, as above explained, is again received 
and assigned to its proper place. 

§ 50. Historical View oj the Doctrine of Natural Right. 

The theory of natural right, and its existence as an integral part of 
the law, has been uniformly recognized by the jurists of all ages and 
countries, with the exception of Austin and the modern English jurists. 

(1) It is clearly and forcibly expressed by Aristotle, who may be 


called the first and one of the greatest of jurists. In his view (as we 
have seen) man is by nature a political animal, and hence his natural 
state is in society. Hence political justice — by which term he denoted 
the justice obtaining between the citizens of the State, and which he 
defined as consisting in conformity to the law (or nomas) of the State — 
is, in fact, the only justice. "For," he says, "the term justice implies 
the case of those who have laws {nomoi) to which they are subject,"* 
and hence justice can exist only "in the case of those between whom 
laws exist," or, in other words, between men in society. In his view, 
therefore, the terms, justice and the law (nomas), connote the same 
essential idea, and dift'er only in this, that the one denotes the rule, 
and the other, conformity to the rule ; as is in effect asserted in his 
proposition that "the administration of law is the determination of the 
just and the unjust," j; or, in other words, the administration of justice. 
Having thus identified political justice with the justice actually existing 
in and enforced by the State, or, in other words, the law, he proceeds to 
say that it is partly natural and partly legal. To use his own language, 
"Of the political just, one part is natural, and the other, legal. The 
natural is that which everywhere is equally valid and depends not upon 
being, or not being received, but the legal is that which was originally a 
matter of inditference, but which, when enacted, is so no longer ; as the 
price of a ransom being fixed at a mina, or the sacrificing a goat and not 
two sheep, and further, all particular acts of legislation as the sacrificing 
to Brasidas, and all those matters which are the subjects of decrees." % 

And in the Rhetoric a precisely corresponding division is made of the 
law. "Let the acting unjustly," he says, "be defined as the voluntary 
commission of hurt in contravention of law. Now law is either common 
or peculiar, nomos koinas or nomas idios." The peculiar law I call that 
by whose written enactments men direct their policy ; the common law, 
whatever unwritten rules appear to be recognized among all men.§ 

And in another place the same idea is thus more fully expressed : "Law, 
now I understand, to be either peculiar or common {idios or koinos) ; tlie 
peculiar to be that which has been marked out by each people in refer- 
ence to itself, and this is partly written and partly unwritten, {h) The 
common law I call that which is conformable merely to the dictates of 
nature. For there does exist naturally a universal sense of right and 
wrong, which, in a certain degree, is intuitively divined, even should no 
intercourse with each other, nor any compact have existed ; which senti- 
ment the Antigone of Sophocles enters uttering that it was just, namely, 
to bury Polynices, though forbidden, since by nature, this was a deed of 
justice ; for, by no means, is it for this or the next day merely that this 
maxim is in force, but forever ; nor is there any one that knows from 
whom it proceeded. And as Empedocles says on the subject of not slay- 

* Ethics, Bk. V, Chap, vi, fol. 4. % Id., Bk. v, Chap, vii, fol. 1. 

t Id., Bk. V, Chap, vi, fol. 4. g Rhetoric, Bk. i, Chap, x, fols. 2, 3. 


ing that which has life ; for this is a maxim not right here nor wrong 
there, but a principle of law to all." {i) 

(2) The distinction made by Aristotle between the common and the 
peculiar law {nomos koinos and nomos idios), was adopted without change 
by the Roman jurists ; who regarded the law as consisting of two parts, 
namely, the jus gentium or naturale and the jws civile. " Every people," 
they say, "uses partly its own peculiar law {jus) and partly the law 
common to all men. For that law which each people has established for 
itself is peculiar to it, and is called the jus civile as being peculiar to the 
State in question ; but that which natural reason has established among 
men, is observed generally among all people and is called the jas 
gentium as being the law which all nations use." * 

The same notion is also embodied in their definitions as given in the 
works cited in note. ( j) 

(3) It was to this conception of jus that the Roman law owed the 
rational character of its development ; which, in fact, commenced with, 
and was, in a large measure, due to the adoption of the Greek philosophy 
by the Roman lawyers. Hence, the Roman law is, to a great extent, to 
be regarded, as Celsus says of it, as "a true philosophy," or, in other 
words, a "body of reasoned truth," which is the view taken of it by 
Leibnitz ; who was at once philosopher and jurist ; and whose opinion is 
therefore entitled to the highest consideration. (A) 

(4) The doctrine of natural right, and of its existence as part of the 
law, was received by the different countries of Western Europe along 
with the whole body of the Roman law, and, so far as my knowledge ex- 
tends, has never been disputed by the continental jurists. It was also 
adopted by the jurists of the common law, and until the advent of 
Bentham and Austin, was universally received. 

(5) On this point the only difficulty arises from the exuberance of the 
aiTthorities. Bracton quotes literally the passages I have cited from the 
Roman jurists, adding much to the same effect of his own. 

"Jurisprudence," he says, "differs much, therefore, from justice ; for 
jurisprudence recognizes, and justice gives what is due to every one. 
Justice, therefore, is the virtue, jurisprudence the science; justice the 
end, jurisprudence the means." + 

The doctrine of natural right as part of the law is also explained at great 
length by Fortescue, De Laudibus Legum Anglim,X also by St. Germain, § 
and Fleta, and finally by the great master of the common law, Coke ; who 
asserts explicitly that " the law of nature is part of the law of England ;" 
and, defines it, in the words of " Aristotle, Nature's Secretary, as that quod 
apud omnes homines eanden habit potentiam" ; and "herewith agreeth," 
he says, Bracton, Lib. i. Chap, v, and Dr. and Student, Chaps, v, vi, 
" And this appeareth plainly and plentifully in our books. "|| And to the 
same efi"ect are numerous other passages hereafter cited. 

* Pandects and Inst, of Justinian. J Chap. 1, 15, 16. 

t Bk. i, Chap, iv, g 1-4. g Doctor and Student, passim- 

1 Calvin s Case, 7 Rep., 12, 13. 


la this way only can be explained the notorious fact that, in spite of 
the avowed hostility of the English people to the Roman law, the English 
lawyers, from the time of Glanville to the present day, have freely bor- 
rowed from its principles. (0 

The same process took place on the continent, and resulted in the estab- 
lishment of the Roman law as the common law of Europe — a fact, it 
would seem, more calculated to surprise than its partial adoption in Eng- 
land. In the latter country, the process was, at a period subsequent to 
the time of Bracton,* checked by the hostility of the English people to the 
Roman law ; but the only result was, that the process was transferred from 
the common-law courts to the court of chancery, where it went on un- 
checked. In modern and more enlightened times the common-law judges 
again commenced to borrow freely from the civilians. It is related of 
one of the greatest of our jurists, Sir Matthew Hale, that "he applied 
himself with great avidity to the contemplation of the Roman law ;" and 
that " he often affirmed that the principles of jurisprudence were so well 
delivered in the Digests that law could not be understood as a science 
without first resorting to them for information."! (to) 

Nor, as we have observed, can any one, even slightly familiar with the 
two systems, fail to perceive the entire identity of principle and method 
of those portions of the two systems that deal with the determination of 
rights, and the substantial identity of rights themselves as realized in all 
civilized nations. 

(6) Two distinctions, however, are to be drawn between the English 
and the continental jurists. The Roman law was inherited by the latter 
from a corrupt and degenerate age, after its spirit had fled, and the 
rational method, by which it had been developed, had ceased to operate ; 
and its general reception on the continent, in its complete form, as part 
of the positive law, has given to it an undue authority. Hence, the 
genius of the continental jurists seems, to a certain extent, to have been 
cramped or fettered by the authority of Justinian's collections, in the same 
manner as, in other branches of philosophy, thought has been dominated 
by the authority of the Church ; and, accordingly, it has been well 
remarked that "the fruits to be obtained from the study of the Roman 
law can be reaped to their full extent only in countries where it is not 
allowed the force of law, "| as is the case in England. 

On the other hand, jurisprudence has been cultivated in England, in 
the main, only by professional lawyers, for purposes of the practical ad- 
ministration of justice ; while on the continent, it has fallen into the hands 
of jurists, devoted exclusively to its theoretical study, or of philosophers ; 
and hence, has resulted a (to us) humiliating superiority in the exposition 
of the law, and of the philosophy of the law, on the continent. Still, ad- 
milting this superiority, it may be said of continental jurisprudence, that 

* Calvin's Case, 346. 

t Hale's History of the Common Law, iii. 

X Kaufman's Mackeldey, Translator's Preface, 7. 


it has been cultivated of late years too exclusively either by professional 
jurists or by philosophers unfamiliar with the details of the law, and 
hence, the following strictures of Bacon may be applied to them as well 
ae to ourselves. 

"All who have written concerning laws have written either as philo- 
sophers or lawyers. The philosophers lay down many principles fair in 
argument, but not applicable to use ; the lawyers being subject and ad- 
dicted to the positive rules, eiiher of the laws of their own country, or 
else of the Roman or pontifical law, have no freedom of opinion, but, as 
it were, walk in fetters."* Pantagruel expresses the same opinion of the 
French lawyers, in somewhat more forcible language: "Seeing," he 
says, "that the law is excerpted from the very bowels of moral and 
natural philosophy, how should these people know the law? who, by 
. . . . , have read no more in philosophy than my ass." 


(a) Thus, Bentham regarded the expressions, the law of nature and natural rights, as 
purely metaphorical. "The primitive sense of the word law," he says, "under ordi- 
nary meaning of the word, is the will, or command of the legislator." " The law of 
nature is a figurative expression, in which nature is represented as a being, and such 
and such a disposition is attributed to her, which is ailirmatively called a law. Natural 
rights are the creatures of natural law. They are a metaphor which derive their exist- 
ence from another metaphor." And he adds : " In this anti-legal sense, the word right 
is the greatest enemy of reason, and the most terrible destroyer of governments. There 
is no reasoning with fanatics, armed with natural rights " (Principles oj Legislation) . 

Austin, also, while admitting the possibility of a natural law, enacted by the Creator, 
in effect denies that it could be known to us, except through the commands of the gov- 
ernment ; and thus practically arrives at the same conclusion. 

(6) Hence, as observed by St. Germain, Doctor and Student, pp. 11 and 12, " it is not 
used, among them that be learned in the laws of England, to reason what thing is com- 
manded or prohibited by the law of nature, and what not ; but .... when anytliing is 
grounded upon the law of nature, they say reason will that such a thing be done ; and if 
it be prohibited by the law of nature, they say that it is against nature, or that nature 
will not suffer it to be done." And the same view is asserted by Coke, in his celebrated 
saying, that "Nihil quod est contra rationem est licitum," aud that "the common law itself 
is nothing else but reason " [Co. LitL, 976) ; and by Mansfield, more accurately, in the 
definition that it is nothing else but reason modified by habit and authority ; and by 
Burke, in saying that it is " the collected reason of ages, containing the principles of 
original justice with the infinite variety of human affairs." 

(c) " After nature had become a household word in the mouths of the Romans, the 
belief gradually prevailed, among the Roman lawyers, that the old jus gentium was, in 
fact, the lost code of nature .... by which nature had governed man in the primitive 
state." " Romnn jurisconsults, in order to account for the improvement of their juris- 
prudence by the praetor, borrowed from Greece the doctrine of a natural-state man — a 
natural society, anterior to the organization of commonwealths, governed by positive 
law." And, again : " The law of nature confused the past aud the present ; logically, it 
implied a state of nature which had once been regulated by natural law. Yet the juris- 

* Bacon's De Aug., 8, 3. 



consults do not speak clearly or confidently of the existence of such a state, which, in- 
deed, is little noticed by the ancients, except where it finds a poetical expression iu the 
fancy of a golden age. Natural law, for all practical purposes, was [■omething belonging 
to the present— something entwined with existing institutions, something which could 
be distinguished from them by a competent observer. The test which separated the 
ordinances of nature from the gross ingredients with which they were mingled, was a 
sense of simplicity and harmony ; yet it was not on account of their simplicity and har- 
mony that these finer elements were primarily respected, but on the score of their descent 
from the aboriginal reign of nature. This confusion has not been successfully explained 
away by the modern disciples of the jurisconsults ; and, in truth, modern speculations 
on the law of nature betray much more indistinctness of perception, and are vitiated by 
much more hopeless ambiguity of language, than the Roman lawyers can be justly 
charged with" {Ancient Law). 

(d) Eights, as we have explained, are of two kinds, viz., rights of ownership and 
rights of obligation, and the enumeration given iu the text is therefore exhaustive. 

(e) It is said by Kant, that this right " is the one, sole, original inborn right belonging 
to every man in virtue of his humanity " {Phil, of Law, p. 56) ; but, in fact, from this 
right are derived all others. This is admirably shown, though with some error, by Her- 
bert Spencer, in his Social Statics and Justice, and is also treated in detail in Mr. Smith's 
Right and Law, Chaps, vii and viii. 

(/) Accordingly, the most approved definition of the Common Law, uniformly asserted 
by English jurists from the time of Bracton, is that it consists of the general customs of 
the realm or State (1 Blacks. Com., 63). " In England," says Bracton (Bk. i, Chap. 1, ? 2), 
"the law {jus) has come without written enactment {ex non scripta), because use has 
established it." In this sense, the term. Common Law, is opposed, by modern legal 
writers, to statutory law. "Common Law is taken for the law of this kingdom simply 
.... as it was generally holden before any statute was enacted in Parliament to alter 
the same " (Jacobs' Ler/. Diet.). " The Common Law is that which derives its force and 
authority from the universal consent and immemorial practice of the people. It has 
never received the sanction of the legislature by an express act, which is the criterion 
by whicli it is distinguished from the statute law " (Bouvier, Law Diet.). 

(g) Thus Mr. Whewell {Elements of Morality) in his otherwise admirable chapter on 
"Justice " seems to assume this : "Though, in general," he says (Sect. -IS'J), " Justice is 
determined by law, the law must be framed in accordance with justice. Justice is 
djrectly and positively determined by law ; for a man's just rights are those which the 
law gives him. The law must be framed in accordance with justice, and must therefore 
reject all that is arbitrary and unequal, as soon as it is seen to be so." The defect of Mr. 
\V he well's views is, he fails to grasp the true nature of the relation between natural 
right and law ; which is that the former is part of the latter. 

(/() There will be noted a discrepancy between this proposition and the one immediately 
preceding ; in the one the written law is described as commensurate with the nomos 
idios, and the vnwritten, with the nomosl-omos, or common law ; in the other, the nomos 
komos is said to be partly written and partly uniuritten. The latter is the true view and 
conforms to the distinction made in the Roman law, and in our own between the lex 
scripta and the lex non-scripta , and also to the distinction made in our law between the 
common and the statute law. 

(i) See further on this point Elements of Civil Law, in the chapter on "The Law of 
Nature," by Dr. Taylor ; who, alter quoting the langu ige of Aristotle, says : " These are 
the very words of the emperor : Omnes pnpidi qui legibus et moribiis regiintur partim suo 
propria partim communi omnium hominum jure utuntur." "This twofold division of the 
law," he adds, "as it is the earliest, so it is perhaps the best and has been generally 
received by lawyers and philosophers." 

Sir Frederick Pollock very strangely mistakes the position of Aristotle upon this 


point : ''Aristotle," he says, "struck out a new and altogether different part. In the 
first place he made the capital advance of separating ethics from politics. Not only is this not 
done in the Platonic writings, but the very opposite course is taken in the Republic. 
Man is represented as a micropoUs, and the city is the citizen writ large" (History of the 
Science of Politics, p. 7). 

The views of Aristotle as expressed in the above quotations, are directly to the con- 
trary ; and it may be added that the Platonic view of the subject objected to by him has 
also been very generally received by modern European publicists {v. Ahrens, cited supra), 
^ (Id., Bk. i, Chap, xiii, Fol. 2j. 

(J) Justitia (i. e., the virtue) est eonstans et perpetua volimtas jus suuni cuique tribuendi. 

Hence, abstract, or, as it is called by Aristotle, political justice, consists in rendering 
to every man his right (jiis suum cuique tribuendo). 

Jurisprudentia est . . . . justi atque injusti scientia. "Jus," says Celsus, "is the art of 
the good and the equal — ars boni et xqui; of which some one deservedly calls us the 
priests ; for we administer the cult of justice, and profess the knowledge of the good and 
the equal, separating the equal from the unequal and distinguishing the right from the 
wrong .... following, unless I am deceived, a true, and not a pretended philosophy. The 
precepts of ./MS are to live decently, to hurt no one, and to give every mau his own" 
(honeste vivere alterum nan Ixdere suum cuique tribuere). 

" Jus civile is that which neither recedes altogether from the Jus naturale, or Jus gen- 
tium, nor altogether follows it. Therefore when we add anything to, or detract anything 
from the common law (jus communis), we make a peculiar law, jus proprium, or jus 
civile." And it is added : "Almost all contracts were introduced from the jus gentium ; 
as for instance, buying, selling, letting, hiring, partnership, deposit, loan and other un- 

" This law of ours is partly written, partly unwritten; as with the Greeks the laws 
(nomoi) were written or unwritten. 

" The written law (jus scriptum) consists of the several kinds of statutes (leges, plebis- 
cita, senatus consulta, principum placita), of the edicts of the magistrates or judges, and 
the opinions of the learned in the law (responsa prudentum). 

"The unwritten law is that which custom has approved. 

" The principles of natural right (naturalia jura) which, are observed equally among 
all peoples, being established by a certain divine providence, remain always firm and 
immutable, but those which each State has established for itself are often changed, 
either by the tacit consent of the people or by some later law." 

Compare Coke, Calvin's Case, Rep. 25. 

"Leges naturse perfectissimx sunt et inmictabiles ; humani vera juris conditio semper in iniin- 
itam currit, et nihil est in eo quod perpetuo stare possit; leges huinanx nascuntur, vivunt, et 

(k) " I have often said, that, after the writings of the geometricians, there exists noth- 
ing which, in point of strength, subtilty and depth, can be compared to the works of 
the Roman lawyers ; and, as it would be scarcely possible from intrinsic evidence to 
distinguish a demonstration of Euclid's from one of Archimedes or Apollonius (tlie 
style of each of them appearing no less uuiform than if reason herself were speaking 
through her organs), so also the Roman lawyers all resemble each other, like twin 
brothers ; insomuch, from the style alone of any particular opinion or argument, hardly 
any conjecture could be formed about its autlior ; nor are the traces of a refined and 
deeply meditated system of natural jurisprudence anywhere to be found more visible or 
in greater abundance. And even in those cases where its principles are departed from, 
incompliance with language consecrated by technical forms, or in consequence of new 
statutes or of ancient traditions, the conclusions which the assumed hypothesis renders 
it necessary to incorporate with the eternal dictates of right reason are deduced with a 
soundness of logic and with an ingenuity that excites admiration. Nor are these devia- 
tions from the law of nature so frequent as is commonly supposed." 

This passage is quoted by Dugald Stewart (Pldlosophy of the Human Mind, ii, iii, 3) ; 
who, while admitting Leibnitz to be good authority, finds it difficult to accept his opinion. 


{I) The most striking illustration of this fact is furnished by the treatise of Bracton, 
with reference to which Sir Henry Maine mal<es the following observation : " That an 
English writer of the time of Henry III should have been able to put off on his country- 
men as a compendium of pure Englith law a treatise of which the entire form and a 
third of the contents were directly borrowed from the corpus juriK, and that he should 
have ventured on this experiment in a country where the systematic study of the Roman 
law was formally proscribed, will always be among the most hopeless enigmas in the 
history of jurisprudence " (Maine's Ancient Law, Chap. iv). It must, indeed, be hope- 
less to reconcile this fact with Mr. Maine's, or rather, Austin's and Bentham's theory of 
the law ; but, in the light of the true theory, there is nothing in it to surprise us. It was 
the function of the judges to administer justice, and tlieir duty, at least, in the then con- 
dition of the law, to seek the principles of justice where they could best find them, 
namely, in the Roman law. " What is good sense in one age must be good sense, all 
circumstances remaining, in another, and pure, unsophisticated reason is the same in 
Italy and in England, in the mind of a Papinian and of a Blackstone" (Sir William 
Jones' Bailments, Introduction). 

"To have neglected to tabe advantage of the assistance which was then offered would 
have argued a high degree of presumption, or gross and culpable ignorance ; neither of 
which is to be imputed to the founders of our system of jurisprudence" (1 Spence's Eq. 
Jur., 123). 

(m) For a fuller account of the influence of the Roman upon the law, see ob- 
servations of Spence, 1 Eq. Jur., pp. lOS, 109, 122-124, 131, 132, 224, 2:«, 235, 285, 286, 346, 
347. Mr. Markby, in his late work. Elements of Law, takes a different view, but in this 
he is clearly wrong. 


Of the Rights, or Just Powers op the State. 
§ 51. Of the State as a Body Politic or Corporation. 

The rights of the State have already been incidentally but extensively 
discussed, in the progress of our work, so that but little remains except to 
summarize what has already been said. 

The notion of a right or of an obligation implies some person or per- 
sons, in whom it exists. Hence, public rights, or rights of the State, 
are in fact rights of the individuals who compose it, differing from indi- 
vidual rights only in being common to all ; and the same is true in 
Private Right of all rights vested in classes of individuals, regarded as 
aggregates {universitates), as, for instance, in the case of an ordinary 
business corporation ; which exists merely for the benefit of the stock- 
holders, and is merely an instrument or organ for exercising more 
efficiently their individual activities ; and whose rights, obviously, are 
merely their rights. But for purposes of expression, this view of rights 
and obligations as vested in actual persons, though true, is, with reference 
to rights vested in classes of individuals, an extremely inconvenient one, 
and on this and on other accounts, it has become necessary to invent what 
are called collective names, such for instance, as a flock of sheep, a 
library, a regiment, etc., by which all the individuals included under the 
name are, figuratively speaking, unified, or regarded as one. This one, 
or unit, is generally conceived to be a thing, as in the instances above 
given, and this, for ordinary purposes, is sufficient ; but when we have to 
express the' moral relations of men — their rights and obligations, their 
duties, their virtues, or other moral qualities — it becomes necessary to 
conceive of it as a person — for it is in persons only that moral qualities 
can reside. 

Hence, in the Law, it has become necessary, for the purpose of dealing 
more conveniently with rights and obligations, to invent the notion of a 
juridical («) person, or, as it is more commonly called with us, a body 
politic or corporation ; which is a fictitious or imaginary person, said to be 
created by fiction of law. 

Of corporations the most perfect type is a State, For that exists 
naturally, as an inevitable consequence of human nature, and therefore 
presents an instance of a permanent organization analogous in many 
particulars to the actual human being. But nevertheless it is of the 
utmost importance that it always be borne in mind that its personality is 
merely fictitious, or imaginary, and that when we speak of its rights and 
obligations, it is a mere convenient expression for those of its citizens. 



From llie neglect to observe this obvious truth, many errors have re- 
sulted, ana indeed it would be almost impossible to instance all the false 
and pernicious conclusions which have been drawn from this analogy — 
as, for instance, that of Kant, Rousseau, and numerous others, to which 
we have alluded, that the State has a will which must be regarded as the 
united will of the individual members of the community ; which involves 
a double fiction, namely, the obviously false proposition that the wills of 
all the citizens may be, in fact, united, or, rather, chemically compounded, 
and the further proposition, that they are vested in a personage as purely 
fictitious as the genii of the Arabinn Nights. And a still more remarkable 
instance is the organic or 2'>^y<i^<'Ological theory of Bluntschli — already re- 
viewed in the preceding pages of this work — which, in effect, regards the 
State as an actual organism, or organic being, having will, intelligence 
and parts like the actual man ; and in which numerous functions are 
assigned to the State ; many of which are illegitimate and some im- 

On this account, in adopting the use of the term, "the organic 
theory,"* I spoke of it as not altogether appropriate. For, while the 
terms "organize" and "organization" are commonly applied to bodies 
of men, as when we speak of organizing a meeting, or a government, the 
term "organic" has acquired a narrower meaning as denoting merely 
an organic being, either animal or vegetable — a sense which it is necessary 
altogether to repudiate in speaking of the State. It will, therefore, be 
understood throughout this work that in applying the term, organic, to 
the State, we use it not as denoting an animal, or vital connection 
between its different parts, or as implying that the State is in any sense a 
living man, with intelligence, or will, but simply as denoting a permanent 
composite naturally existing whole, which, in many respects, bears a close 
analogy to an organic being in the narrower and stricter sense. 

§53. Of the Distinction Beticeen the Internal and External Rights of 
the State ; and Herein of Inttrnational Right. 

In considering the rights of the State it is to be first observed that the 
State occupies two distinct relations, viz., the one, towards its subjects, 
the other, towards other States. Accordingly, the rights of the State are 
to be divided into two classes, namely, its internal and its external rights. 
The former belong peculiarly to the subject of the present work ; the 
latter, to an independent, though closely related science, known as the 
Law, or, more properly, the Right of Nations (jus gentium), or, as in 
modern times, it is more commonly called, International Right, or Law. 

It is one of Austin's tenets, generally received by the later English 
jurists, that international law, or right, is not law in the true sense, and 
this conclusion — as we have observed — necessarily follows from his defi- 
nition of the law, as being merely the expressed will of the State; on 
which, as we have seen, his theory wholly rests. And hence, according 

* Supra, p. 240. 


to this view, International Law or Right is nothing more than positive 
morality. The last proposition is, indeed, undoubtedly true ; but it is 
equally clear, as we have seen, that his definition of the law is untenable, 
and that his conclusion that International Law, or Right, is not law in 
the true sense, cannot be sustained. On the contrary, it constitutes a 
system of law, or right, essentially similar in its nature, and in its general 
principles and method to the Law of Private Right, or rather to that por- 
tion of the Law of Private Right which consists of the doctrine oi rights, 
as distinguished from the doctrine of actions; which, as we have seen, con- 
sists merely of the principles of justice or natural riglit — including, of 
course, such arbitrary and accidental piinciples as are admitted by those 
principles. Hence, it must be said that not only International Right, 
but Private Right also, are, in fact, only positive morality ; for they both 
consist merely of the principles of natural justice as received in the gen- 
eral conscience, and these constitute but a branch or division of positive 

International Law, therefore, may be described as being merely an 
application of the principles of justice or natural right to the relations 
existing between different States, regarded as juridical persons ; nor is any 
other conception of it possible. The theory that conceives it to be based 
upon custom, and also that which conceives it to be based on convention, 
and, iu fine, all other theories, are necessarily included in this. For each 
of these theories rests upon the assumption that justice, or right, demands 
the observance of the principle asserted, i. e., the observance of custom, 
or of^ convention— and hence, as in the case of private law, the practice of 
nations, and treaties, and other contracts are merely elements in the 
problem ; which, in every controversy, is simply to determine, in view of 
these, and all other circumstances, what are the mutual rights and obli- 
gations of the parties. 

The doctrine of private rights, as observed in each State, and the doc- 
trine of international rights, are, therefore, essentially the same ; and this 
was well and clearly conceived by the Roman lawyers in their concep- 
tion of {ha jus gentium or jus naturale, and by Aristotle in liis conception 
of the nomos koinos, or common law, as including all those principles of 
natural right, or justice, observed by men generally. But in both cases, 
as we have observed, with regard to Private Right, the principles of jus- 
tice or natural right can become the practical standard only when gener- 
ally received. (6) 

§ 53. Of Private International Right. 

Hence, the system of rules and principles known as private interna- 
tional law, and sometimes treated under the title, "The Conflict of 
Laws," is improperly so called. This system may be described as in- 
cluding the rules and principles which govern the transactions taking 
place outside of the State, but presented to the courts of the State for 
determination. Controversies with reference to such transactions are 


determined either by the law of the foreign State in which the transacilon 
occurred, so far as consonant with natural right, and with the policy of 
the State exercising the jurisdiction, or by principles of natural right. 
The principal application of this jurisdiction is to the case of contracts ; 
which are said to be governed by the law of the place of contract {lex loci 
contractus), and to cases of succession ; but it is also applied to cases of 
trespass, and other torts. In all such cases the foreign law is applied, 
not on the supposed ground of comity, but because justice demands that 
it should be. 

With these few and simple considerations, which have in England and 
in this country been greatly obscured by the prevailing theory, and which 
are sufficient to give a clear and definite notion of the nature of Interna- 
tional Law, or Right, we will now revert to our proper subject ; which is 
the internal rights of the State, (c) 

I 54. Of the Distinction Between the Political and the Non-Political RigJits 
of the State, and Herein First of the Social Rights of the State. 

The rights of the State may be divided into two general classes — namely, 
those which pertain to the individuals composing the State, and which 
differ from private rights only in being common to all, and those which 
pertain to the State in its corporate capacity only. The latter may be 
called the political, the former the non-political, or merely social rights of 
the State. 

The former class includes the right to the maintenance of the public 
peace and security, and also to the preservation of the public morality. 
For the existence of these rights is essential to the existence and well- 
being of every individual in the community, and they therefore exist in 
the State because they exist in each of the individuals composing it. This 
is sufficiently clear with reference to the maintenance of the public peace 
and security, and with reference to the observance of justice ; for without 
these, social life would be impossible ; and it is equally clear that a decent 
observance of the received morality is, to a certain extent, demanded by 
the rights of individuals, and that its open violation is, in certain cases, 
inconsistent with those rights. For such violation of the principles of 
morality generally observed by the community, would constitute what is 
technically called a nuisance, and is as inconsistent with the comfortable 
enjoyment of existence, and property and the free exercise of the faculties 
in the pursuit of happiness, as a noxious smell, or poisonous exhalation, {d) 

In this kind of rights is also included a certain right to the lands of the 
State, which is violated by its unjust appropriation by individuals ; for 
without the right to a certain use of land, the existence of the individual 
is impossible, and it would seem also that there is a right to a certain 
equality of enjoyment in such lands. But the latter right is in its nature 
indeterminate, and can be realized only by the affirmative action of the 
State ; to which, as in the case of all indeterminate rights, this function 
properly belongs. 


And generally the social or non-political rights of the State includes 
all rights implied by the general right of the State to a free and natural 

The social rights of the State, like private rights of ownership, are fully 
effectuated by their mere exercise or enjoyment, and, so far as respected, 
do not call for or admit of the intervention of the political power : whose 
sole function with regard to them is that of protection. Hence, were it 
not for their liability to be violated, or, in other words, were mankind 
uniformly just, and voluntarily disposed to observe them, private and 
social rights would include all rights whatever. 

§ 55. Of the Political Bights of the State. 

Hence, the political rights of the State, as we have seen, spring from the 
necessity of an organized force to protect private and social rights ; and 
they may therefore all be summed up in the right to govern ; which, as 
already observed, includes not only the right to use force directly for the 
protection of private and social rights, but also to use it for the organiza- 
tion, maintenance, protection and administration of the government ; all 
of which are essential to the principal or final end ; and also, within cer- 
tain limits, to promote the common good. 

The classification of the political rights of the State, or the rights of 
government, has been sufficiently indicited by the classification of its 
several functions. They consist first in the extr&or^Wn&vy right of political 
organization, and {herights of the government ; the last of which are to be 
divided into the judicial and the administrative rights ; the former of 
which is again to be diVided into the right of legislation, and that of 
ordinary jurisdiction ; and the latter, into that of the right of legislation, 
and that of government (Imperium). 

The rights, as we have explained, are, however, necessarily more ex- 
tensile than the corresponding functions,* and it will be necessary there- 
fore to consider the limit to which they extend. 

§ 56. Of the Limit to the Political Rights of the State. 

This limit will vary under different circumstances. In a less advanced 
stage of civilization, in which public opinion, and especially the sentiment 
of rights is not highly developed, hardly any limit can be assigned to the 
powers of government ; but in our modern civilization the powers of 
government are much more limited. The general principle governing 
the subject is, however, obvious, and is thus well expressed by Ruther- 
ford :f 

" The civil power is in its own nature a limited power ; as it arose at 
first from the social union, so it is limited by the needs and powers of such 
union, whether it be exercised as it is in democracies, by the body of the 

* See Supra, p. 245. 

^Second Institutes of Natural Law, p. 393. 



people, or, as it is in monarcliies, by one single person." In other words, 
the most obvious dictates of reason demand that the powers of govern- 
ment should, as far as practicable, be limited to such power as may be 
necessary for the performance of its functions. 

This power must necessarily be very great ; and we may even say of it, 
with Hobbes, "Non est super terram potC'itas quae comparetur ei ;" but still, 
whether we consider the power of the ordinary government, or the 
general power of the State, it, has its clearly defined limits. With regard 
to the former, such limits may be imposed by the Stale, in the exercise of 
iis function c>f political organization, by constitutional limitations ; with 
reference to the latter, this cannot be effected ; but the obvious limit is in 
the common sentiment of rights which measures at once its rightful and 
its actual power ; or, in other words, botli its right and its might. 

With regard to the right of government, as we have explained, the 
limit thus imposed is the rightful one, or, in other words, the State has no 
right to violate it. With regard to its actual power, or might, this limit 
is equally effective ; for it is itself backed by the superior force, and it 
takes from the government, when this limit is exceeded, the only force 
upon which it rests, viz., that of popular opinion. Nor is it necessary, 
except in extreme cases, that this limit should be enforced by actual re- 
sistance or revolution. The fear of such resistance is in general suffi- 
cient, and this constitutes a sanction essentially identical in its nature 
with that which restrains the would-be robber or murderer. 

This force operates also by simply producing the non-observance of the 
commands of the government. Without this, as we have explained, laws 
fail to become operative, and even laws originally operative cease to be 
so. The power of government is also often successfully resisted, and 
still more frequently evaded by individuals. In this respect despotic have 
no advantage over constitutional governments ; in the latter of which the 
safety of the rulers and the observance of the laws are enforced not only 
by fear, but by the intelligent sentiment of the community ; while in the 
former, not only are the laws in general less observed, in matters where 
the power of the sovereign does not reach, but the sovereign himself is 
frequently assassinated. Through these instrumentalities, viz , by fear, 
by force, and by evasion, a real and powerful restraint is imposed upon 
the power of the State by the manners and customs, or, in other words, 
the morality of the people, and especially by the sentiment of rights and 
by the force of popular opinion. For — as we have observed — no fact in 
the history of mankind is more obvious than that beyond a certain point 
the power of government is unavailing against the quiet but resistless 
operation of this force ; and that, when opposed by it, laws in general are 
dead letters — either failing to take effect, or becoming obsolete as manners 
and customs change. This resietance indeed varies in different political 
societies ; but its real and powerful efficiency — which, it may be safely 
affirmed, increases with the growth of civilization — is strikingly con- 
spicuous in modern civilized nations of the world ; in none of which can 


any government continue to exist if the rights of life, liberty or property, 
or those arising out of tlie family relations should become insecure, either 
by reason of the inefficiency of the government or otherwise. Indeed, 
as we have observed, the most characteristic distinctness of modern 
civilization consists in the clear and more definite conception of rights 
generally prevailing, and the controlling power of this conception over 
government. It is Nomos, therefore (to use again the familiar saying of 
Hesiod), that is the only absolute king ; and Leviathan is but his vice- 
gerent ; who, like other subordinate ministers, may, within certain limits, 
abuse the powers entrusted to him, but, if he undertakes to resist and 
defy the will of the true king, is sooner or later made to know and sub- 
mit to his power. Briefly, therefore, the sentiment of rights in the human 
heart and the conviction that it is the right and the duty of every man, 
when there is no other resort, and where the infringement upon them is 
intolerable, to vindicate them by force, constitutes at once the rightful, 
and the only practical limit upon the power of the State ; and hence — to 
quote again the expression of an eminent jurist — no State is capable of 
constitutional government unless composed of "men who know their 
rights," " and knowing dare maintain them." (e) 

Opposed to this view is the modern doctrine of sovereignty as generally 
held in Europe and this country ; which has been already fully con- 


(a) " By the term 'juridical (moral or fictitious) persons,' is meant everything other than 
a human being, which is regarded by the State as the proper subject of rights. To this class 
belong first, the State itself ; then, in a monarchy, the ruler as holder for the time being of 
the highest power of the State ; the treasury, or fiseus ; and all State offices as regards the 
rights connected with them. It includes moreover corporations of every kind, all pious and 
charitable institutions (j^ice casuce) recognized and approved of by the State ; and lastly, the 
inheritance of a person deceased, while it lies unacquired by the heirs {heredilas jacens). A 
corporation (universitas, corpus collegium) is a body of persons united for some permanent 
object, invested with the capacity of acting as a single person and recognized as a moral 
juridical person by the State" (Kaufmann's Mackeldey, §§ 141, 142). 

" Artificial, conventional, or juristic persons, are such groups of human beings, or masses 
of property as are, in the eye of the law, capable of rights and liabilities " (Holland's Jur., 
pp. 74, 75). 

In our law a corporation is defined by Chief Justice Marshal as " an artificial being, invis- 
ible, intangible and existing only in contemplation of law " (Dartmouth iw. Woodward, 
4 Wheal Re})., 626). 

" It was chiefly," says Chancellor Kent, " for the purpose of clothing the bodies of men in 
succession with the qualities and capacities of one single artificial and fictitious being that 
corporations were originally invented, and for the same convenient purjiose they have been 
brought largely into use. Accordingly, in the law, persons are divided into natural and fic- 
titious (' persons in fact and persons by fiction of law ')" (Muirhead's Inst, of Oaiiis, p. 570). 

The distinction is thus admirably expressed "by Hobbes, Levialhan, Chap, xvi : 

" A person is he whose words or actions are considered either as his own, or as represent- 


iiig the words or actions of another man, or of any other thing, to whom they are attribu- 
ted, whether truly or by fiction. When they are considered as liis own then is he called a 
natural person ; and whea they are considered as representing words and actions of another, 

then is he a/e/ginefZ or ar<//icto/ person There are few things that are incapable of being 

represented by fiction. Inanimate things, as a church, and hospital, and bridge may be 

personated by a rector, master, or overseer An ideal, or mere figment of the brain 

may be personated, as where the gods of the heathen, which by such officers as the State 
appoint, were personated, and held possessions, and other goods and rights, which men 

from time to time dedicated and concentrated unto them 

" A multitude of men are made one person when they are by one man or person repre- 
sented, so that it be done with the consent of every one of that multitude in particular. 
.... And unity cannot otherwise be understood in multitude." 

(b) The nature of International Right or law is admirably explained by Vattel, in the Pre- 
face to his well-known work on the Law of Nalions, from which we extract the following : 

" Hobbes, in a work wherein he discovers great abilities, notwithstanding his paradoxes 
and detestable maxims : Hobbes, I say, was, I believe, the first who gave a distinct, though 

imperfect idea of the Law of Nations This author has well observed, that the Law 

of Nations is the Law of Nature applied to States or nations 

" Piiffeiidorf declares, that he subscribes absolutely to this opinion espoused by Hobbes. He has 
not therefore treated separately of the Law of Nations ; but has everywhere united it with 
the Law of Nature projierly so called. 

" Barbeyrac, the translator and commentator on Grotius and Pufifendorf, has approached 

much nearer to a just idea of the Law of Nations ' I confess,' says he, ' that there are 

laws common to all nations or affairs, which ought to be observed by every nation with 
respect to each other ; and if people call this the Law of Nations, they may do so with great 
propriety. But the consent of different people is not the foundation of those obligations by 
which they are bound to observe those laws, and therefore cannot take place here in any 
manner. The principles and obligations of such a law are in fact the same as those of the 
Law of Nature, properly so called. All the difference consists in the application made of it, 
varied a little on account of the difference that sometimes subsists in the manner in which 
societies discharge their affairs with respect to each other.' 

" The author we have just quoted has well observed, that the rules and decisions of the 
law of nature cannot be applied merely and simply to sovereign States, and that they must 
necessarily suffer some changes according to the nature of the new subjects to which they 
are applied. But it does not appear that he has seen the full extent of this idea, since he 
seems not to approve of treating the Law of Nations separately from the Law of Nature, as 
it relates to individuals 

" This glory was reserved for the Baron de Wolfius 

" ' Nations,' says he, ' among themselves acknowledge no other law, than that which na- 
true herself has established, it will therefore perhaps appear superfluous to give a treatise on 
the Law of Nations distinct from the Law of Nature. But those who think thus, have 
not sufficiently studied the subject 

" ' When we would apply to nations, the duties which the Law of Nature prescribes to 
each man in particular, and the right it attributes to him in order that he may fulfill his 
duties ; these rights and these duties being no other than what are agreeable to the nature 
of the subjects, they must necessarily suffer in the application, a change suitable to the new 
subjects to which they are applied. We thus see, that the Law of Nations does not in every- 
thing remain the same, as the Law of Nature, regulating the actions of individuals. Why 
then may it not be treated of separatelj', as a law proper to nations?' " 

(c) " Though much has been said about eomitas, it is an improper term ; there is no such 
thing as a decision from complaisance ; when jurists determine by the law of another coun- 
try, they do it ex justitia; they are bound to do it. In questions of succession, for instance, 
England and Scotland have different laws ; but if a man dies intestate in Scotland the Eng- 
lish courts will not regard their own law in deciding on his suceesion. They commit injus- 
tice if they determine by the English law. ' What is the Scottish law?' ought to l>e the very 
first question that they ask. If they do otherwise, they do wrong. The judgment of Eug- 


lish and Scottish judges in such a case ought to be the same " (Per Macqueen, J. C, in Wat- 
son vs. Renton, 8 Bell's Sep., 106). 

(-?) Thus for instance the peculiar mode of consummating the marriage contract used by 
Crates could not be admitted in modern society ; or, to use a more familiar instance, the 
maintenance of houses of ill-fame, and other disorderly houses, is not to be permitted among 
the dwellings of respectable persons. This, I take it, to be the tirst of the three precepts of 
the law given us by Ulpran : " Juris prcecepla sunt hcec : honeste vivere, allerum non kedere, 
suum cuique iribuere," i. e., to live decently, to injure no one, and to render to every man 
what is due him — the first referring to the observance of morality, the second to the observ- 
ance of rights of ownership, or rights i7i rem., and the third to the performance of obliga- 

(e) This principle, with some defects in application, is admirably developed in Von Ihering's 
Struggle for Right: " The end of the law," he says, " is peace ; the means to that end is 

war The life of the law is a struggle, a struggle of nations, of the State power, of 

classes, of individuals ; all law in the world has been obtained by strife. Every principle of 
law which obtains had first to be rung by force from those who denied it, and every juridical 
right — the juridical right of a whole nation as well as those of individuals — supposes a con- 
tinual readiness to assert and defend it." In illustration of his theme the author refers at 
length to the story of Michael Kohlhaas, by Heinrich Von Kleist, not as endorsing the con- 
duct of the man, but a.s approving the sentiment and principle upon which he acted. There is 
another story with a similar motive, entitled For the Right, the author of which I forget, but 
of which Mr. Gladstone makes a similar use in a late English review. The manner in which 
these stories, and Von Ihering's work appeals to the heart of the reader, constitutes the 
most convincing demonstration of the depth and force of the sentiment of right, and the 
sentiment that the first principle of manly virtue is to vindicate it, if necessary, by force. 
In his Preface, Von Ihering informs us, with pardonable vanity, that his little work, at the 
time of his writing, 1877, had been translated into Hungarian, twice into Russian, and into 
modern Greek, Dutch, Roumanian, Servian, French, Italian, Danish, Bohemian, Polish 
and Croatian. 


Of the Principles op Political, Organization. 

§ 57. Aristotle's Classification of the Forms of Oovernment. 

There are many principles upon which the forms of government may 
be divided, and as many different systems of classification. Hence, the 
several classifications adopted by political writers are numerous, and, on 
account of the neglect to distinguish between the different principles of 
division — it may be added — extremely bewildering. A certain unity, 
however, results from the fact that publicists generally seem to have 
agreed in accepting, in a more or less modified form, the classification 
proposed by Aristotle ; witli wiiicli, therefore, every exposition of the 
forms of government must naturally begin. 

This classification is based on two distinct principles, and may be said 
to be a combination of the two corresponding classifications. 

The first of these consists in the division of governments into (1) 
those which have, or, rather, are so constituted as to have the common 
good as their end ; and (2) those which have for their end, the good of 
the rulers only. The former are called by Aristotle, normal; the latter, 
perverted, forms. 

The second classification is based merely upon the consideration of the 
number of Individuals in whom the supreme power of the government is 
vested. This, he says, "must be vested, either in an individual, or in a 
few, or in the many."* Accordingly, the several forms of government 
may be divided into (1), Monarchy, or, as Kant prefers to call it, Autoc- 
racy,\ the government of one; (2) Oligarchy, the government of a 
few, and (3) Democracy, or Ochlocracy, the government of the many. 
But, with regard to the last, the term "democracy" is misleading. 
The demos, or people, consists of all the members, or at least all the free 
members of the community, men, women and children, all of whom can- 
nut participate in the government; and the term, "ochlocracy" — the 
government of the mob — though more accurate, carries with it an oppro- 
brious sense, that is out of place in the impartial realm of science. The 
occasion, therefore, seems to demand the invention of a new term, and 
perhaps no better for the purpose can be suggested than the term Poly- 
archy ; which precisely expresses the idea intended, without either ap- 
proval or disapproval. 

Combining these two classifications, there will result six forms of gov- 
ernment — three normal and three perverted. 

Of these the normal forms are called by Aristotle, (1) Monarchy, the 

*Po/., iii, Chaps, vi, vii. f Phil of Law, p. '207. 



government of one ; (2) Aristocracy, the government of the best, i e., of 
a class so regarded, and (S), Polity, so called in the Politics, for lack of a 
distinctive name ; but, in the Rhetoric, called Timocracy, the government 
cf the worthy. 

The three perverted forms are, (1) Tyranny; (2) Oligarchy, which, 
on historical grounds, he defines as a governmentof the rich {Plutocracy), 
and (3) Democracy, which, on like grounds, he defines as the government 
of the poor. 

It needs but little reflection to perceive that what Aristotle calls "the 
perverted forms" of government are in fact the historical forms invaria- 
bly presented. And, as all constantly recurring historical phenomena 
must be regarded as resulting from some law or principle of human 
nature, they must be regarded as the actual or real forms of government ; 
and the normal forms as merely ideal. We may, therefore, regard the 
former as Aristotle's actual or historical classification, disregarding the 
latter ; and accordingly lliis is the form in which it has been generally 
received in modern limes — the received division of governments being 
into (1) Monarch}', (2) Oligarch}'-, improperly called Aristocracy, and 
(3) Democracy, or Ochlocracy ; and this division, rejecting the inappro- 
priate term, "aristocracy," we will adopt as our classification of actual 

It is, however, obvious that the utility of a historical classification of 
governments consists merely in presenting them in a form convenient for 
investigation, and that the object of such investigation is to discover the 
true, or ideal forms, which, perhaps, we may never fully realize, but to 
which it is the object of political science to enable us to approximate. 
We must examine, therefore, more particularly Aristotle's views as to 
the latter, as contained in his division of governments, into those which 
do, and those which do not, regard the common good as the end of the 

\ 58. Of Constitutional and Absolute Governments. 

On this point it is first necessary to observe that the term, " the common 
good," here used — like the principle of Utility, of which it seems to be an 
expression — is a very indefinite term, and, with politicians, as a practical 
rule, extremely dangerous ; for, as we have observed, though the prin- 
ciple of Utility — rightly stated— is a sound one, that of General Utility, or 
Utilitarianism, which is the form of the principle most commonly used, is 
a dangerous and even pernicious principle of polity ; being, of all the 
weapons of political knavery, and political stupidity, the most effective ; 
and we may, therefore, say of it, as Austin untruly says of conscience, 
that it is merely "a convenient cloak for ignorance, or sinister interest." 
But these observations are not to be regarded as strictures upon Aristo- 
tle's views, but rather as intended to prevent his being misunderstood. 
For, though he here uses what, on account of its indefiniteness, and also 
on account of the prevalence of the Utilitarian philosophy, is, at this 


time, a peculiarly objectionable expression, viz., "the common good," 
he is elsewhere careful to explain that "the political good is justice" 
{Pol., Bk. iii, Chap, xii); of which he says, "all others must yield her 
the precedence " {11., Bk. iii. Chap, xiii), and that it is "the rule of the 
social State, and the very criterion of what is right" {Id., Bk. i, Chap, 
iii); which is an anticipation of the view of German philosophers, that 
the State is a jural institution {Rechtsstaai, status juris), and that its 
essential end is the realization of justice. 

Thus understood, this division of Aristotle agrees precisely with that of 
Mr. Ahrens ; according to which there are two kinds of States only, 
namely, the jural and the despotic; {a) the former of which, he agrees 
with Aristotle in thinking, can only be secured by a participation of the 
people in the government.* This division is thus explained by Mr. 
Ahrens : 

"The principle of life of the State is Right {droit), and there is only 
one just form of the State; it is that which, by the mode in which its 
powers, and their relations to the national life are organized, assures the 
reign of right {regne de droit, liechtsstaat) as the ethical and objective 
principle, to which the will of all ought to be submitted, and as the 
organic principle which guarantees to all its members and parts their 
position, and free action, and participation in the exercise of all the 
political powers. The Jural State {L' Etat de Droit — Rechtsstaat) is then 
the normal State, formally organized, of which self-government forms the 
most salient characteristic. The opposite of the jural State is despotism, 
the arbitrary personal will, which puts itself in the place of right, and of 
law enacted by the free consent of the people, and efhcaciously controlled 
in its execution. Between the Jural State, and despotism, there are with- 
out doubt many intermediate terms ; but the way to despotism is opened, 
whenever a government, in matters of public order, puts its own, in the 
place of the action of its citizens, and carries into effect its personal will, 
without seeking to know, or without respecting the national will." f 

§ 57. Of the So-called Ideocracy. 

Mr. Bluntschli, while agreeing generally with Aristotle, thinks a fourth 
form of the State should be added, the normal form of which he calls 
"ideocracy," and the perverted form, " idolocracy ;" and which is defined 
by him as the Stale " in which the supreme power has been attributed 
either to God, or some other .... superhuman being, or an Idea." 
" This form," he says, " can exist only in a theocracy '' — which, accord- 
ingly, he uses as an identical terni.| But Aristotle's doctrine of the 
supremacy of the law, (c) or, as expressed by Hesiod, "The reign of 
King Nomos " {Nomocracy), or, in the language of modern times, "the 
sovereignty of the law," or, still better, "the sovereignty of right," 
conies equally within the definition. It is, however, obvious that, in 

*Pol., Bk. iii, Chap, vii, et seq. % Theory of the State, pp. 331-338. 

t Corns De Droit Natarel, Sec. 114. (6) 


either a theocracy, or a nomocracy, the real rulers must necessarily be 
human beings, and the form of government must, therefore, be either a 
monarchy, an oligarchy, or a polyarchy ; which, indeed, seems elsewhere 
to be admitted by Mr. Blunstchli. (d) 

The modern doctrine of Sovereignty, in whatever form it be asserted — 
whether as the sovereignty of the government, or that of the State or 
people — is but an ideocracy ; for, in either case, the supposed sovereign is 
merely a body politic, or a fictitious or imaginary person, or, in other 
words, an idea. Of the two forms of the doctrine, the latter — i. e., the 
sovereignty of the State or people — is an example of the normal form of 
Ideocracy ; and, as we have observed, its use, as a metaphor expressing 
the notion that there is a higher power than that of government, is to be 
encouraged ; though it must yield, in the importance and dignity of the 
truth expressed, to the nobler doctrine of the Sovereignty of Right, or 
Justice, or, in other words, of King Nomas. The other doctrine — i. e., 
the sovereignty of the government — presents an equally striking example 
of the perverted form of Ideocracy, called by Bluntschli, Idolocracy ; of 
which Austin and the modern English, or so-called, " Analytical " school 
of jurists may be taken as the peculiar representatives ; their idol being 
the "Mortal God " created by Hobbes, and called Leviathan. 

§ 59. Of the So-called Mixed State. 

Mr. Bluntschli — whose own doctrine, indeed, is a kind of Ideocracy — 
has emancipated himself from this idolocracy to a certain extent. He 
denies emphatically the absolute power of the sovereign. (<?) But he 
himself regards the State as ''a living, and therefore organized being," 
with a "soul and body," a "will," and "active organs,"* in short as a 
"moral organized masculine personality,"! with a "psychological and 
human nature." % (/) And from this he infers that the supreme power 
of the State, or sovereignly, is indivisible, and from this again, he deduces 
many illegitimate conclusions.g 

Of these one of the most important is presented by his views as to the 
so-called Mixed State, as described by Cicero and others — a subject of 
much importance to which we will briefly refer, {g) The possibility of 
such a State is repudiated by him ; and with this conclusion no fault can 
be found. For, in a constitutional monarchy, as in every constitutional 
government, the supreme power is vested in more than one, and it is, 
therefore, according to Aristotle's definitions, not a monarchy, but an 
oligarchy, or aristocracy. (A) But the reasoning of Mr. Bluntschli — which 
rests entirely upon the notion that sovereignty is indivisible — and also his 
conclusion that the limited monarchies of modern Europe are monarchies 
in the sense of Aristotle — is untenable. 

* Theory of the State, pp. 18, 19. % Id., p. 76. 

tia., p. 23. 

g " Sovereignty implies .... unity, a necessary condition in every organism " {Id., 
p. 495). 



In every constitutional government the sovereign powers are, in fact, 
divided. Hence, to avoid this ditHculty he is, as it were, compelled to 
misconceive and misconstrue the principle of Aristotle's classification ; 
which is that " the supreme power over the whole State," language that can 
mean nothing else than sovereignty, i e., the aggregate of all sovereign 
powers — " must necessarily be in the hands of one person, or of a few, or 
of the many."* But Bluntschli asserts that, according to Aristotle, it is 
the vesting, not of the whole sovereignty, but of "the governmental 
authority " only, which determines the form of the State ; and from this 
"governmental" (or regal) "authority" "the legislative power" is ex- 
pressly excluded." "But this" (the goveinmental or r^^aZ authority), 
he says, "is unsusceptible of division, and, therefore, as it forms the 
principle of Aristotle's classification, there cannot be a fourth form of gov- 
ernment. But on the same principle he might deny also, that either 
aristocracy or democracy is possible ; for ia both these forms the govern- 
mental power is — as we have seen — divided. (^) 

Accordingly he asserts — as, on the principle of the indivisibility of the 
sovereign powers, he necessarily must — that in every so-called mixed 
State, "the supreme governing power" — which can mean only the 
sovereignty — is in reality either " in the hands of the monarch, or, of the 
aristocracy, or, of the people."! {j) And this is true provided we accept 
his new definition of sovereignty, as including only the governmental or 
regal, or, as it is usually called, the executive power, but according to the 
commonly received sense of sovereignty, and according to Aristotle's 
definitions, altogether false. 

This peculiar notion of sovereignty is strikingly illustrated by Mr. 
Bluntschli's views of the English Constitution ; which are, in effect, that 
the English government is still a monarchy in Aristotle's sense of the 
term. (Jc) And, on the other hand, there are those who hold the opposite 
notion, equally unfounded, that the House of Commons is the sovereign ; 
as was, in effect, asserted by Mr. Gladstone, in a late speech denouncing 
the rejection of the Home Rule Bill by the Lords as unconstitutional, and 
as is asserted in terms by Sir Frederick Pollock. (0 And also by Mr. 
Ikirgess ; who says {Pol. Science and Const. Law, p. 96), that the House of 
Commons "is now the perpetual constitutional convention for the amend- 
ing of the Constitution." But this view is obviously erroneous — as was 
practically manifested by its inability to enact the Home Rule Bill, and 
many other similar cases. Mr. Gladstone's denunciation of the House of 
Lords, on the occasion referred to, and his threat to abolish it, was, there- 
fore, in effect, a threat of revolution ; for the powers of the lords, as well 
as those of the king, are, like those of the Commons, vested in them by 
the fundamental law, and they cannot be involuntarily deprived of tliem 
unless by revolution. The extent of the power of the Hou&e of Commons 
is merely to force the government to dissolve it, and thus to appeal to the 
country. Hence, the view of Mr. Austin is more logical, lluit the 

*Bk. iii, Chap. vii. t M., p. 332. 


sovereignty apparently exercised by the House of Commons is vested, not 
in tlie House, but in its constituency, {m) 

Tlie view of Bluntsolili that the liing, and that of others, that the House 
of Commons is the exclusive sovereign, are, therefore, equally untenable. 
Sovereign power is undoubtedly vested, and, since the Commons became 
a constituent part of Parliament, has always been vested in each of the 
three coordinate branches of the government ; as, previously to the event 
referred to, it was in the king and lords. 

§ 61. Of the Essential Nature of Constitutional Government. 

Bluntschli's doctrine, as to the indivisibility of the sovereignty, is 
obviously inconsistent with his own theory that it is limited. For, regard- 
ing sovereignty merely as the supreme, or Jiighest political power, it is 
clear that, if exclusively vested in the governmental or executive depart- 
ment of the government, it cannot be limited by the legislative, or the 
judicial department; for this would be to vest in some respects, a higher 
power in the latter. The argument of Austin on this point * is conclusive. 
Hence, all constitutional government must consist of divided sovereign 
powers ; and this in fact constitutes the essential difference between such 
governments, and despotic governments ; where the sovereign powers are 
concentrated in one hand. Hence, the most fatal aspect of Mr. Bluntschli's 
argument is that, if it be true, constitutional government is impossible ; 
for the very essence of all constitutional government — it is universally 
admitted — is that the legislative power, within its province, must be 
supreme ; and. in this country, it is regarded as equally essential that 
the judicial power also shall be so. Hence, it may be said that every 
American State, federal, or constituent, is in fact a triarchy, consisting of 
three sovereign departments, " existing side by side, each independent of 
the other ;" each of which may, without much impropriety, be called, 
with reference to the power vested in it, a sovereign. This state of things 
is indeed regarded by Mr. Bluntschli as impossible, at least as a permanent 
institution ;f but so far is this from being the case, that such division of 
powers is, in our own case, universally regarded as the surest foundation 
of permanency. And, it may be added, that some such division of 
sovereignty is an essential and necessary condition of permanency in all 
States whose people are capable of vindicating their rights ; for no free 
people will willingly submit to despotic power. 

That from this division of powers conflicts may arise is inevitable ; but 
this is a necessary condition of human life, and perhaps essential to human 
development, individual and political. Such conflicts may indeed even 
result in civil war, and in fact have done so in numerous cases ; but this 
is but one of the means by which rational government, political freedom, 
and civilization have been developed. Nor is it possible to preserve tlie 
fruits gathered from our painful experience, in any othgr way than by 

* Supra, p. 205. t Theory of the State, pp. 333, 334. 


maintaining, as our forefathers did, the principles of right, public and 
private, not only by argument, but when necessary, by force, and, in last 
resort, by arms. 

Nor, indeed, as one might think is the case, from the difBculty en- 
countered by modern publicists in conceiving the possibility of a gov- 
ernment of mutual checks and balances between the powers of several 
departments of government, is the world without abundant experience 
on this point. The English people, throughout a history of over eight 
hundred years, has presented a most conspicuous, and, it may be added, 
valuable example of such a government. The distribution of the sovereign 
powers first between the king and the lords, and afterwards among the 
king, lords and Commons, did, indeed, provoke conflict, and numerous 
civil wars. But to this principle of the division of sovereignty, and the 
wars resulting from it, the modern world owes the idea and the possi- 
bilitj'^ of constitutional liberty. And now that the conflict has for a while 
ceased, the only fear is that the results of such painful labor and struggle 
may be ignorantly lost, and government become a mere representative 
democracy without constitutional checks. If this should prove to be 
the case, the result will be attributable mainly to the supremacy of the 
Austinian philosophy, and especially to the doctrine of the indivisibility of 
sovereign power. 

Another illustration of the principle is presented by the Roman 
republic; where, as we have seen, there existed, side by side, without 
affecting the permanency or efficiency of the government, two sover- 
eign and coordinate legislatures, and two sovereign consuls, each 
vested with full regal powers, and also, alongside of the regular govern- 
ment, the political organization of the whole people, an independent 
sovereign organization of a class, namely, the Fkbs, represented by the 
tribunes of the people, in each of whom was vested the power to veto, or 
nullity all the acts of the other departments and officers of the govern- 
ment, including even those of his own colleagues. («) Tlie English and 
the Roman constitutions are admittedly the most successful that history 
presents. Other instances might be cited, but these will be sufficient. 

Recapitulating what has been said, it will be observed, and cannot be too 
often relocated, that the divisibility of the sovereign powers of the gov- 
ernment constitutes the essential characteristic, or specific dift'erence of 
constitutional government ; and consequently governments may be 
divided on this principle into two classes, namely, the Constitutional, and 
the Absolute or Despotic ; the former of which consists of those in whicli 
the sovereign powers are distributed among several classes of officers or 
departments, the latter of those in which the whole sovereign power is 
centred in a single officer or assembly. 


§63. Of the Principles tJiat Should Oovern the Distribution of the 
Sovereign Powers. 

To determine the modes in which the sovereign powers of the State 
may be most safely and efficiently distributed in the government, is the 
great problem of political organization. This problem, however, does 
not admit of any general solution, but is to be differently solved accord- 
ing to the character of the people, and the circumstances that surround 
them, and especially the grade of civilization that characterizes them. 
There are, indeed, certain general principles governing the subject, that 
have been evolved by a long and painful experience, and which, when 
well understood and applied, may be accepted ; but in general, the par- 
ticular mode of their application must be determined, in a large measure, 
by experience, and by the natural development of political institutions. 
For no fact in the constitution of the State is more obvious or more im- 
portant than that the political institutions of the State are mainly the 
result of a natural or organic development ; and that, in this fundamental 
matter, as in all others, the extent and limit of human power is to modify 
this development, either by conservmg, improving, and perfecting it, or 
by hindering and destroj-ing it. 

Hence, it is a principle of political organization, as obvious as it is gen- 
erally disregarded, that political reforms should be cautious and gradual, 
and such only as are clearly and obviously suggested by the necessities 
of the times, and a thorough knowledge of existing institutions, their 
nature and significance, and their practical operation ; for, obviously, 
political innovations are too serious to be undertaken until necessity de- 
mands, and they never can be safely adopted without a just appreciation 
of their effect upon the existing order. On the other hand, reform is as 
essential to preserve the body politic in health, as are the cares of the 
physician to the natural man ; and, looking back to the experience of the 
nations that have appeared and disappeared on the theatre of the world's 
history, it may be said that their decay and death, when not occasioned by 
external force, have been the result of defects in their political institutions 
that might have been reformed. Hence, as it were, we have to pass between 
Scylla and Charybdis ; and it is almost impossible to avoid, on the one 
hand, the dangers of injudicious reform, and on the other, those of stupid 
conservatism, (o) 

Hence, from a logical and scientific point of view, no principle of party 
division could be more irrational than that on which parties are in fact 
usually divided, and which is founded upon the distinction between con- 
servatives, and radicals or liberals. The wise man will be either, as the 
occasion demands ; or, rather, he will, at all times, be both ; that is, 
liberal, and even radical, in thought, but conservative in sentiment and 
in practice. And this suggests another important consideration, which is, 
that the permanent organization of political parties is itself irrational, 
and, as constituting imperia in imperio, inconsistent with a rational and 


efficient political order. That parties should exist, is not only desirable, 
but inevitable ; but that they should be organized in permanent corpora- 
tions, as they are, is a different matter. On the contrary, it seems obvi- 
ously desirable that the division of parlies should take place with reference 
to each important political question as it may arise, and that their dura- 
tion should be determined by the duration of the controversy. And 
hence it follows, that instead of the people of the country being divided 
into two great hostile political organizations, determined entirely by 
federal politics, there should be a different division of parties in State, 
from that existing with reference to federal politics ; and again, that there 
should be another and entirely ditferent division in counties and cities, 
with reference to their local affairs ; and that parties thus formed should 
be of only temporary duration. This, indeed, in view of the influence ot 
custom and association, is hardlj"^ to be hoped for. But the evils of the 
existing system may, to a large extent, be remedied by the increase of 
men capable of independent thought and action, and of disregarding 
parties, except so far as they may find them fitting instrument of attaining 
rational political ends. 

This apparent digression has been rendered necessarj' by the necessity 
of guarding against the fatal delusion that in practical politics, theoretical 
principles are always to be put immediately in practice ; and, it may be 
added, that in general the sole instrument or means by which political 
theory is to be realized is general opinion ; which should lead and not 
follow legislation. 

"With this caution, we will now return to the consideration of the theo- 
retical principles that should govern the distribution of sovereign powers. 

(1) An obvious principle upon which this distribution may proceed is 
that of locality ; which is the principle observed in the constitution of 
federal States, where, as we have seen, the sovereign powers are divided 
between the federal and the constituent States. The nature of this kind 
of government has already been considered at length. Certain publicists, 
as we have seen, deny the possibility of such a division of the sovereign 
powers, and hence, in effect, the possibility of the federal State ; but it 
has been shown, that this view is untenable. It may be added, now, 
that, in view of the tendencies manifested in the history of the race, it is 
to this character oi State that we must look as the principal instrument of 
the advance of political civilization in the future. 

In the historical evolution of States, we observe a constant tendency 
to the enlargement of the territory and population embraced under the 
jurisdiction of the State. Thus, we have seen the primitive clan, or gens, 
absorbed into the village, and this again into the ancient city, and this 
finally by the great Roman empire ; and this has been followed by the 
feudal States of medisEval, and the great national States of modern times ; 
and, it is to be apprehended, that this tendency unless modified may go 
on, unchecked, to results not now anticipated, (p) Of the several classes 
of States thus evolved, we may take two as representative types ; namely, 


the ancient city and the modern State, or empire. Of these there cannot 
be any doubt that, so far as yet disclosed in history, the first is the more 
perfect type ; or, in other words, it is the type of State that has most per- 
fectly fulfilled the essential end of the State ; namely the harmonious 
development of the individual : and that the modern State, though per- 
haps of a higher order of development, cannot be compared with the city 
State of the ancient world in this respect. Fully to establish this propo- 
sition, would necessitate a historical disquisition too extensive for these 
pages ; (q) but the fact will be made sufficiently clear by a comparison of 
any modern State with that of Athens — an insignificant country in point 
of numbers and extent, but which has played a greater part in the history 
of the race, and the development of its civilization, than any of the great 
empires of the world. On the other hand, this type of State presented 
one essential defect, which was, that on account of its size, it proved itself 
unable to cope with external aggression, and thus, in the development of 
larger political organizations, necessarily succumbed. On this account, 
it has been condemned, in unqualified terms, by publicists generally ; 
who have consequently come to regard this capacity for large political 
organization as the distinguishing mark of the political genius of the 
people. In this, they are undoubtedly right, to the extent that this 
capacity, under the conditions that are presented in human history up to 
this time, has been essential to political existence. But it is equally 
obvious, from experience, that the organization of large States, while 
under existing conditions, essential to political existence, carries with it 
many evils ; and especially, that it is to a large extent injurious to the 
development of the individual, morally and intellectually. Hence, it 
seems evident that a combination of the advantages of the larger and the 
smaller State is desirable, and this is precisely what is effected by the 
federal organization. It is, indeed, impossible, in modern times, and in 
view of the immense development of population and business interests, to 
return to the city State ; but smaller political organizations of sovereign 
character, such as in our country are presented by the States of the 
Union, are possible ; and these generally are sufficiently limited in popu- 
lation and territory to subserve the same purposes as the city State. 

In Europe, where the existence of each State is threatened by hostile 
powers, its policy, under existing conditions, must be determined by this 
sole consideration. But here in America we are absolutely free from such 
considerations ; and an opportunity for political development is thus 
given us which has never before, in the history of the race, been presented 
to the same extent ; and nothing but political prejudice, born of circum- 
stances that no longer exist, can stand in our way. To what extent this 
circumstance in our situation may or should influence our future develop- 
ment, is to some extent illustrated by the history of our mother country' ; 
which, by reason of its isolation, alone of the countries of modern 
Europe, has been able to develop a liberal and rational constitution. 

In this country, also, it is to be observed, that under our federal Consti- 


liUion, the separate States, which are sovereign as to nearly all the great 
interests of society, are in a position to reform their political organizations, 
free from all fear of foreign interference ; and hence, that they present 
the most appropriate and hopeful fields for the operation of political 

With these observations upon the federal State, we pass to the con- 
sideration of the distribution of sovereign powers in the government of 
each State. 

(2) The first great division of powers to be considered, is that between 
tlie ordinary government and the constituent electorate. This distinction 
is more or less ignored, or, at least, its significance misunderstood, by 
European publicists ; but it is clearly marked out, in this country, by our 
actual constitutional practice. With us, as is expressed in the phrase, the 
sovereignty of the people, the electorate is regarded as supreme, or, in 
other words, sovereign ; but, in asserting this proposition, it must always 
be understood that its power is limited, as is all other political power, by 
the principles of right. 

With regard to the composition of the electorate, or, in other words, the 
qualifications of electors, I know of no principle that can be asserted as 
universally true. We have adopted, practically, that of universal suf- 
frage, and the rule of the majority ; but with regard to the former, it is 
admitted by all, that a certain degree of political civilization is required in 
order to make the principle practically efticient ; and we may therefore 
assume that the doctrine of universal suffrage does not assert a natural 
and inalienable right, but that it is to be regarded, among people of sufli- 
cient political virtue and intelligence, as the best practicable solution of 
the question. 

With regard to the rule of the majority, as existing under our present 
political organization, our approral must be even less unqualified. The 
existing operation of this principle may be considered in two aspects ; 
viz., as to its theoretical, and as to lis, practical working. With regard to 
the former, the legislative power — in which the other powers of the gov- 
ernment have been largely absorbed — is supposed to be exercised by our 
representatives. Our government, therefore, is, in theory, though not ac- 
cording to the common notion, an oligarchy, consisting of our chosen rep- 
resentatives ; but this, in fact, is not the case. The rulers of the country 
are, in reality, the majority of the representatives ; and these represent, 
not the whole of the electorate, but simply the majority of the electorate ; 
and the minority, in many States, as, for instance, in the Southern States, 
and in the Eastern States, with one exception, and in most of the old 
Northwestern States, are as completely and permanently disfranchised as 
though they lived under the Czar of Russia. But, practically, even this 
is not realized. The actual constituency of the representatives does not 
consist of the electors generally, or even of the electors assembled in con- 
ventions, but of the professional politicians and party leaders ; so that we 
are really living under an oligarchy, constantly alternating from the 
political managers of one party to those of the other. 


It seems, therefore, that in this respect a reform is imperatively de- 
manded, at least in the State governments ; and the nature of this reform 
is equally obvious. It consists of the principle oi proportional representa- 
tion, the most approved form of which is that knovvn as the Hare plan ; 
with reference to which, it may be said, as far as it is possible to foresee 
the result of an untried experiment, that in it is to be found a remedy for 
the principal political evils of the day : For, first, it will emancipate 
minoiities, and our legislative assemblies will become truly representative, 
representing minorities as well as majorities ; secondly, it will altogether 
dispense with political conventions and professional politicians ; thirdly, 
it will restore to the individual citizen, who desires to participate in the 
government of the country, that independence of thought and of action of 
which, as a condition of entering into politics, he is now absolutely de- 
prived ; and, fourthly, it will admit of the facile organization of third pnr- 
ties. representing all the several interests, opinions and principles, existing 
in the country ; and thus, in place of the dead level of character, and in- 
tellect, that is engendered by the existing system, it will substitute the 
free and harmonious development of all the natural tendencies of society. 

(3) With regard to the distribution of sovereign powers in the govern- 
ment, the most general principle that should govern our conclusions is 
suggested by the consideration that the State, as expressed by the German 
publicists, is -a jural State (Rechtsstaat). or, in otlier words, that its prin- 
cipal end and function is to establish justice ; which can be practically 
effected only by protecting the rights of men, individually and collec- 
tively, from the aggressions of human power, whether exercised by indi- 
viduals, or the State. 

(4) To effect this end, it is necessary that a judicial power should be 
constituted, competent to determine controversies between individuals, 
and between individuals and the government, with reference to their 
mutual rights and obligations ; and, in order that the judicial power may 
be adequate to the performance of this function, it is obviously desirable 
that it should, as far as possible, be independent, or, in other words, 
sovereign, and therefore coordinate with the other sovereign departments 
or officers of the government. 

(5) It is necessary to the efficient administration of justice, that with 
reference to rights otherwise indeterminate, general rules should be estab- 
lished ; and, as we have already shown, the establishment of such rules, 
determinative of questions of right, constitutes part of the function of the 
judicial department. But the function of establishing such rules, or, in 
other words, the function of legislative jurisdiction, or judicial legislation, 
should be distinguished from that of ordinary jurisdiction, and should be 
vested in a different body, or organization, from that of ordinary judges. 
Hence, in the most efficient organization of the judicial department, it 
would consist of the courts, and of a judicial commission, or legislature. 
It is to be observed, however, that the performance of the respective 
functions of these two departments should be governed by the same con- 



sideration, namely, that justice should be observed ; and hence, there 
seems to be no necessity for regarding them as separate and coordinate 
departments, but rather as two different organizations in the same depart- 
ment, cliarged with essentially the same functions. 

(6) But tlie judicial department is itself a part of the government, or 
political organization of the State ; which is charged generally with the 
maintenance of the State, and its defense against foreign and domestic 
enemies, and also with the protection of the rights of individuals against 
aggression : and hence, among its functions is that of protecting the 
people, and the State generally, against the abuse of the judicial power, 
as well as against the abuse of the other powers of the State. These 
functions of the State, exclusive of its judicial (unctions, we have been 
forced, for lack of a better term, to call its administrative functions. 
These must be divided, again, into the leginlative function, and the gov- 
ernmental, or, as it may be otherwise called, the imperial function, and 
each of these, in an elficiently organized government, should in the main 
be vested in independent officers and departments, namely, the legislative 
and the governmental departments ; each O'f which should be coordinate 
with the other, and with the judicial power, and, in its sphere, supreme, 
or sovereign. 

(7) The above division of functions, as will be observed, accords, in the 
main, with the received division of the functions of the State, into the 
executive, the legislative and the judicial. It differs from it, however, in 
the following respects : Under the received division of functions, as ex- 
emplified in our own constitutions, and those of other States, the legisla- 
tive department improperly exercises the function of legislative jurisdiction, 
and also many of the govei'nmental functions. The former, as we have 
said, should be vested in the judicial department, and the latter should be 
restored to the governmental, or so-called executive department of the 

(8) The nature of the legislative department, and of its functions, are 
sufficiently familiar not to require an extended explanation. It will be 
sufficient, therefore, to accept the general view upon the subject, noting 
only where it requires to be modified. Of which modifications, the first 
to be observed is, that it is not to be regarded as including the function of 
legislative jurisdiction, or juridical legislation, now generally exercised 
by it, but which, according to the view we have taken, ought to be vested 
in the judicial department. 

In addition, it may be observed that it is a matter of grave doubt, 
whether, in other respects, the modern representative legislature might 
not, with advantage, be materially modified, and its functions largely 
reduced. Originally, the legislative power operated simply as a check, 
or limit, to the exercise of the governmental or regal power ; against which 
it was its chief function to protect the lives, liberties and propertj'^ of the 
citizen. And this function, as illustrated in English history, was accom- 
plished by effectually establishing, first, the principle that no man shall 


be deprived of life, liberty or property, except by due process of law ; 
secondly, the practical independence of the judiciary ; and, finally, the 
exclusive control of the limit, and the ways and means of taxation, by 
the legislative department. Ultimately, however, the governmental, or 
regal, power was, in England, transferred from the king to a parliamen- 
tary commission, depending, in effect, for the continuance of its official 
existence, upon the House of Commons ; by which, on the whole, the 
function is fairly well administered. But in this country, while the gov- 
ernmental functions are still, to a considerable extent, left in the President, 
or other head of the government, they have, in the main, been absorbed 
by the legislative department, and are necessarily exercised by it through 
committees of a temporary nature, generally unknown to the public, ami 
hence, to a large degree, irresponsible. Thus the governmental, and the 
legislative functions, having become, in the main, united in the legislative 
body, the power of taxation has become entirely unlimited, and the prop- 
erty of the citizen has come to be wholly at the mercy of the irresponsible 
power of the legislature ; and thus, the principle of the immunity of 
private property from governmental aggression, established in the mother 
country by the bloody struggles of six hundred years, has been entirely 
eradicated from our Constitution. The only difference is, that the unlim- 
ited power of taking the property of the citizen, once asserted by the 
king, who might, at times, be able and honest, is now freely exercised, 
without challenge, by bodies of men, who, experience seems to teach 
us, cannot possibly be either. Hence has resulted the constant increase 
of taxation, both in the federal and constituent States, and in municipal- 
ities and counties ; and the obvious fact is disregarded, that taxation may 
be carried to the extent of actual confiscation of all visible property, and 
may thus result — as it did in the case of the Roman empire — in the actual 
destruction of the State. For this evil, the obvious remedy would seem 
to be, to take from tlie legislative, and to restore to the governmental 
department, all strictly governmental functions, including the initiative of 
all legislation, and especially of legislation determining the amount of 
money required for the needs of the government, but leaving to the legis- 
lature, to whom the function properly belongs, the initiative of deter- 
mining the ways and means of raising the amount required. 

This, indeed, would necessitate a large increase in the powers and 
functions of the government, or governmental department. But this, 
too, is desirable, and indeed is one of the most pressing demands of our 
age and country ; and it cannot be doubted that governments vested with 
larger powers and more responsible functions, and thus naturally enjoy- 
ing that respect and consideration for the governmental power that has 
almost died out with us, would be capable of more efficient service than 
under our present system. 

(9) The nature of the governmental power is more complicated and 
less familiar than that of the legislative department. It is best expressed 
by the terms, royal, regal, imperial ; all of which have been applied to it 


by eminent publicists.* Generally, it may be said that it is vested with 
the function of executing the enactments of the legislative department ; 
and hence it has been called the Executive Power. But this, as we have 
observed, is but a subordinate function, and in addition to it, the govern- 
ment is charged with the function of supervising all the departments of 
the government, in the exercise of their functions, and also with the 
supervision of the welfare of the State generally. And among its other 
functions, in the opinion of eminent publicists already referred to (in 
which I entirely concur), it ought to be charged mainly, though not ex- 
clusively, with the initiative of legislation, and to a greater or less extent, 
with the veto power. 

This extensive increase in the functions of the government, and of the 
respect and consideration in which it is to be held is, indeed, opposed by 
our democratic prejudices ; but, in fact, tliese functions must exist some- 
where, and when not vested in the head of the government, will be 
exercised, not by the legislative power, which is incapable of performing 
them, but by temporary legislative commissions. 

The expediency of this change rests, in addition to what has been said, 
upon the obvious consideration that the administration of political affairs, 
outside of the judicial department, is merely a matter of business, differing 
from ordinary business only in the fact that it is infinitely more compli- 
cated and difficult to be performed ; and as in ordinary business, men 
trained to its administration are essential, so, a fortiori, it is necessary 
that the business of ihe government should be conducted by men of 
trained efficiency, and in the main of permanent tenure of office ; and 
this can only be effected by vesting the governmental functions in a 
thoroughly organized department, the leaders of which, as in all other 
business operations, should be few in number, and thoroughly competent. 
On the other hand, it is an equally obvious consideration, that the legisla- 
tive body should consist of men taken from the people at short intervals, 
and in close sympathy with them, and, in fact, representing them in their 
opinions and sentiments. To this end, it must necessarily consist of 
many members, and therefore be incapable, as a body, of exercising gov- 
ernmental functions. 


(a) This seems to agree also with the division made by Kant, as explained by the 
author: "According to Kant, there are two governmental forms— the repubtican and 
the despotic— ihe first, which is alone capable of securing a good administration, exists 
where there is a division of powers ; the second, where all the powers are united in the 
hands of the sovereign, individual or collective " ( Coiirs de Droit Naturel, 117). 
It is also the division of Mr. Calhoun, and is thus clearly explained by him : 
"Constitutional governments, of whatever form, are, indeed, much more similar to 

* Supra, p. 264. 


each other, iu their structure and character, than they are, respectively, to the absolute 
governments, even of their own class. All constitutional governments, of whatever 
class they may be, take the sense of the community by its parts— each through its appro- 
priate organ ; and regard the sense of all its parts, as the sense of the whole. They all 
rest on the right of suffrage, and the responsibility of rulers, directly or indirectly. On 
the contrary, all absolute governments, of whatever form, concentrate power iu one un- 
controlled and irresponsible individual or body, whose will is regarded as the sense of 
the community. And, hence, the great and broad distinction between governments is 
_ — not that of the one, the few, or the many — but of the constitutional, and the absolute." 
Thus far, I think the principles of concurrent majorities, as expounded by Mr. Cal- 
houn, is generally conceded in this country by thinking men ; nor do I know of any 
serious difference of opinion among American statesmen and publicists of approved 
reputation prior to the war. The heated controversies between parties, represented iu 
the popular imagination by Webster and Clay on the one hand, and Calhoun and Hayne 
on the other, was merely as to the application or extension of the principle. Mr. Cal- 
houn ineflt'ect held that the principles of rational constitutional government required that 
every class or minority of respectable proportions, which by sectional division, peculiar 
interests or otherwise, stood permanently separated and distinguished in opinion and in 
interest from the rest of the community, should have, as the only efficient means of self- 
protection, a veto power ; which, as a principle of political science, was but to assert the 
right of every community of considerable proportions to self-government; but he 
further asserted, as a principle of the actual constitution, the right of every State to 
nullify a law tliat it deemed unconstitutional, or, as a last resort, to withdraw from the 
Union. This was the actual issue ; which, iu its result, consigned to obscurity the works 
of one of the purest statesmen, and one of the most acute, profound, and analytical 
minds of modern times, and which finally terminated in a war that cost a million lives, 
and billions of money. Upon the merits of the question, in view of the passions engen- 
dered in this country by the struggles of a century, and the culminating horrors of civil 
war, it is too early yet to justify a discussion. We liave entered upon it simply for the 
purpose of showing that the principle of the division, not only of the sovereign powers 
generally, but also of the legislative power particularly, is not in question— for to deny it 
is to <1eny the possibility of constitutional government — but the question of the extent of 
its application only. 

(6) Mr. Ahrens, while agreeing with Aristotle's division of States, is, I think errone- 
ously, of the opinion that it "touches only the surface of political relations," and he 
adds, "that it is necessary to determine the form of the State accoiding to its funda- 
mental idea, or according to the principle which animates all political organization, and 
which gives it its type and its principal character" (<&.). But this, as we have seen, is 
precisely the method pursued by Aristotle, whose conclusion seems also substantially 
to agree with his own. 

(c) " He who bids the law be supreme, makes God supreme, but he who entrusts man 
with supreme power, gives it to a wild beast, for such his appetites sometimes make 
him " (Bk. iii. Chap. xvi). " The supreme power should be lodged in laws duly made " 
(Bk. iii. Chap. xi). 

(d) " Some French statesmen with good intentions, but without much success, have 
attempted to oppose to this destructive conception of the sovereignty of the people, the 

idea of the sovereignty of reason or justice The error which recognizes the only 

fundamental form of State in absolute democracy is here opiX)sed by the error of ideoc- 
racy " ( Theory of the State, pp. 499, 500). But, as the author justly observes, iu this doc- 
trine the fact is overlooked that "right can only belong to a person, and that political 
supremacy can only be ascribed to a political personality." 

(e) " Louis XIV and the Jacobins of the Convention of 1793," he says, " alike regarded 
themselves as omnipotent. Both were wrong. Modern representative government 
knows nothing of absolute power, and there is no such thing on earth as absolute inde- 


pendence. Neither political freedom, nor the right of the other organs and elements of 
the State are compatible with such unlimited sovereignty, and wherever men have 
attempted to exercise it, their presumption has been condemned by history. Even the 
State as a whole is not almighty, for it is limited externally by the rights of other States, 
and internally by its own nature and by the rights of its individual members" {Theory 
of the State, p. 491). 

(/) "This," he says, "is very clear to him, but as there are persons, sometimes edu- 
cated persons, who have no musical ear, or are completely insensible to the beauty of a 
painting or a drawing, so there are many learned men who are complete strangers to 
organic or psychological thinking." Hence, he apparently denies to Ahrens the right 
to call himself a believer in the organic theory of the State. He "has undertaken," he 
says, to write such a theory ; " but by the organism of the State, he does not so much 
understand a living and personal collective being, as an organic arrangement for com- 
munity»in law,'" or (as I suppose it is in the original) right. 

" I made the mistake." he adds, " of presupposing some understanding for this science 
which I had made known in my Theory of Parties, but I found out I was in error, and 
that all psychological thinking about the State was strange and unknown to the educa- 
tion of the day. My Studies were put aside as ' the incomprehensible nonsense of an 
otherwise intelligent man.' The fruits of these studies, as they have been matured in 
the present work, are received with general acceptance " {ib.). The last is an astound- 
ing statement ; and if true would argue almost as low a state of political science in 
Germany as exists in England ; but in this the author probably flatters himself. 

The work of Mr. Bluntschli is a valuable one, but this extravagant notion that the 
State is an organic being, or, in plain English, or. at least in logical eflFect, an animal, 
has vitiated all his conclusions. In this respect Ahrens, and, though I am acquainted 
only at second hand with his works, I presume Krause, are safer guides. 

(g) Aristotle himself recognized mixed constitutions. Pol.,iv,7: " Quartam quocldam 
genua reipublicx mnxime probanditm esse censeo, quod est ex his, quse prima dixi, moderatum 
et permixtum tribus." " Cicero De RepubL, i, 29 . . . . Polybius (vi, 11) had previously de- 
scribed the Roman constitution as mixed. Plato (Laws, 712) treated Sparta as a mixed 
government, but without using the phrase" [Theory of the State, p. 332, note). " If it is 
understood," continues the author, " that the supreme governing power is itself divided 
between the monarch, the aristocracy and the people, so that two supreme governments 
exist side by side, each independent of the other, then Tacitus is right in rejecting the 
idea of a mixed State, and in maintaining that its existence, or, at any rate, its continu- 
ance, is impossible " {tb., 352, 333). Tacitus' Annals, iv, 33 : " Canctas nationes et urbes pop- 
ulus, aut priinores, aut singuU reguat : delecta ex iis et consociata rcipublicx forma laudari 
facdius quain eveiiire, vel si evenit, haud diatuma esse potest." 

(h) Theory of the State, Bluntschli, p. 400, n. : " It is h,ardly neces'Jary to remind English 
readers," says the translator, " that our constitution is a monarchy only in the popular, 
and not in the scientific sense." 

(t) Theory of the State, pp. 329, 333 : "It is generally forgotten," he says, in the para- 
graph last cited, "that the principle of Aristotle's division does not rest on the nature 
and composition of the legislative power ; for in any advanced State this is usually rep- 
resentative of the chief elements of the whole nation. On the contrary, it depends on 
the antithesis between the government and the governed, and upon the (luestion to 
whom the supreme administrative power belongs. This latter cannot be divided, not 
even between a king and his ministers, for this would create a dyarchy or triarchy, and 
would be opposed to the essential character of a State, which, as a living organism, re- 
quires unity. In all living beings there is a variety of powers and organs, but in this 
variety there is unity. Some organs are superior and others inferior, but there is always 
one supreme orgau, in which the directing power is concentrated. The head and the 
body have no separate and independent life, but they are not equal. So also for the 


state, a supreme organ is a necessary condition for its existence, and this cannot be split 
into parts. If thie State itself is to retain its unity." 

(i) "By a mixed State maybe understood one in which monarchy, aristocracy, or 
•uemocracy are moderated or limited by other political factors, e. g., a monarchy may be 
limited by the formation of an aristocratic Senate or Upper House, and of a primary or 
representative Assembly of the people. In that case it is true that such a divided con- 
stitution is better than when an individual, or a few, or the majority rule absolutely and 
without restraint. But such a mixture as this does not create a new form of State, for 
the supreme governing power is still concentrated in the hands of the monarch, or of 
the aristocracy, or of the people." 

(k) "As the Middle Ages came to an end," he says, " the modern constitution of the 
State was close at hand. It is the end of a history of more than a thousand years, the 
completion of the Romau-Germanic political life, the true political civilization of 

" This form of State was first developed in England, where it had long been slowly but 
surely ripening." .... 

" Constitutional monarchy is a combination of all other forms of State. It preserves 
the greatest variety without sacriticing the harmony and unity of the whole. While 
giving free room to the aristocracy to exercise its powers, it imposes no restraint upon 
the democratic tendencies of the people. In its reverence for the lavv we can even see 
an ideocraiic element. But all these various tendencies are held together in their due 
relations by the monarchy, the living head of the State organism 

" The English king has realized that he does not represent his own will, but that of the 
State. Thus the ministers and — since the English ministers are kept in power by the 
confidence of Parliament, or rather of the House of Commons— the popular representa- 
tives have more influence over the government than in continental States. So far the 
English monarchy may be called parliamentary or republican. But the reverence for 
the crown is nowhere stronger than in England, and however strong the aristocratic 
elements, and the Parliament may be, the English constitution has remained a mon- 

{I) History of the Science of Politics, p. 32, note: "We now say," observes the author 
cited, " that political power, as distinct from legal sovereignty, is in the last resort with 
the majority of the House of Commons." 

(m) " In our country, for example, one component part of the sovereign or supreme 
body is the numerous body of the Commons (in the strict signification of the term) : that 
is to say, such of the Commons (in the large acceptation of the term) as share the sov- 
ereignty with the king and peers, and elect the members of the Commons House." 
"Consequently the sovereignty always resides In the king and the peers, with the elec- 
toral body of the Commons " (Jur., pp. 251-263). 

(w) A full account of the Constitution of the Tribunate is given by Mr. Calhoun, in his 
Disquisition on Government," (pp. 9i, et seq.), from which we extract the following : 

" Such was the origin of the tribunate ; which, in proce>s of time, opened all the 
honors of the government to the plebeians. They acquired the right, not only of veto- 
ing the passage of all laws, but also their execution ; and thus obtained, through their 
tribunes, a negative on the entire action of the government, without divesting the 
patricians of their control over the Senate. By this arrangement, the government was 
placed under the concurrent and joint voice of the two orders, expressed through sepa- 
rate and appropriate organs ; the one possessing the positive, the other the negative 
powers of the government. This simple change converted it from an absolute, into a 
constitutional government— from a government of the patricians only, to that of the 
whole Roman people— and from an aristocracy into a republic. In doing this it laid the 
solid foundation of Roman liberty and greatness. 

"A superficial observer would pronounce a government, so organized as that one order 


should have the power of making and executing the laws, and another, or the repre- 
sentatives of another, the unlimited authority of preventing their enactment and 
execution, if not wholly impracticable, at least too feeble to stand the shocks to which 
all governments are subject; and would, therefore, predict its speedy dissolution, 
after a distracted and inglorious career. 

" How different from the result ! Instead of distraction, it proved to be the bond of 
concord and harmony ; instead of weakness, of une<iualed strength, and, instead of a 
short and inglorious career, one of great length and immortal glory. It moderated the 
conflicts between the orders; harmonized their interests and blended them into one; 
substituted devotion to country in the place of devotion to particular orders; called 
forth the united strength and energy of the whole, in the hour of danger ; raised 
to power the wise and patriotic ; elevated tlie Roman name above all others ; extended 
her authority and dominion over the greater part of the then known world, and trans- 
mitted the influence of her laws and institutions to the present day. Had the opposite 
counsel prevailed at this critical juncture ; had an appeal been made to arms instead of 
to concession aud compromise, Rome, instead of l)eing what she afterwards became, 
would, in all probability, have been as inglorious, and as little known to posterity, as the 
insignificant States which surrounded her, whose names and existence would have been 
long since consigned to oblivion, had they not been preserved in the history of her con- 
quests of them. But for the wise course then adopted, it is not improbable— whichever 
order might have prevailed— that she would have fallen under some cruel and petty 
tyrant, and finally been conquered by some of the neighboring States or by tlie Carthage- 
niaus or the Gauls. To the fortunate turn whicli events then took, she owed her un- 
bounded sway and imperishable renown. 

"It is true, that the tribunate, after raising her to a height of power and prosperity 
never before equaled, finally became one of the instruments by which her liberty was 
overthrown ; but it was not until she became exposed to new dangers, growing out of 
increase of wealth and the great extent of her dominions, against which the tribunate 
furnished no guards. Its original object was the protection of the plebeians against 
oppression aud abuse of power on the pan of the patricians. This it thoroughly 
accomplished, but it had no power to protect the people ol tlie numerous and wealthy 
conquered countries from being plundered by consuls and proconsuls. Nor could it 
prevent the plunderers from using the enormous wealth, which they extorted from the 
impoverished and ruined provinces, to corrupt aud delmse the people; nor arrest the 
formation of parties— irrespective of the old division of patricians aud plebeians— having 
no other object than to obtain the control of the government lor the purpose of plunder. 
Against these formidable evils, her constitution furnished no adequate security. Under 
their baneful iufluence, the possession of the government became the object of the most 
violent conflicts ; not between patricians and plebeians, but between profligate and cor- 
rupt factions. They continued with increasing violence, until finally Rome sunk, as 
must every community under similar circumstances, beneath the strong grasp, the 
despotic rule of the chieftain of the successful party— tlie sad but only alternative which 
remained to prevent universal violence, confusion and anarchy." 

In further illustration of the principle stated in the text the Slavic principle may be 
referred to, that requires unanimity to give validity to a political act. This is referred to 
by Mr. Bluntschli as practicable only in small and entirely homogeneous communities ; 
but it is well known to have been exemplified on a large scale in the Polish goverijment. 
I do not, of course, recommend the principle as applied in that governmi-nt, but it 
worked fairly well for over two hundred years. 

It is thus explained, and also a similar institution of another people, by Mr. Callioun 
{Disquisition on Government) : 

" It is, then, a great error to suppose that the government of the concurrent nnijority is 
impracticable or that it rests on a feeble foundation. History furnishes many examples 
of such governments, and among them, one, in which the principle was carried t-o an 
extreme that would be thought impracticable had it never existed. I refer lo that of 
Poland. In this it was carried to such an extreme that, in the election of her kings, the 
concurrence or acquiescence of every individual of the nobles and gentry present in an 


assembly numbering usually from one hundred and fifty to two hundred thousand, was 
required to make a choice ; this giving to each individual a veto on his election. So, 
likewise, every member of her Diet — the supreme legislative body— consisting of the 
king, the senate, bishops and deputies of the nobility and gentry of the palatinates, pos- 
sessed a veto on all its proceedings, thus making an unanimous vote necessarj' to enact 
a law, or to adopt auy measure whatever. And, as if to carry the principle to the 
utmost extent, the veto of a single member not only defeated the particular bill or meas- 
ure in question, but prevented all others, passed during the session, from taking effect. 
Further, the principle could not be carried. It, in fact, made every individual of the 
nobility and gentry, a distinct element in the organism, or, to vary the expression, made 
him an Estate of the kingdom. And yet this government lasted, in this form, more than 
two centuries ; embracing the period of Poland's greatest power and renown. Twice, 
during its existence, she protected Christendom, when in great danger, by defeating the 
Turks under the walls of Vienna and permanently arresting thereby the tide of their 
conquests westward. 

" It is true her government was fiually subverted and the people subjugated, in conse- 
quence of the extreme to which the principle was carried ; not, however, because of its 
tendency to dissolution from weakness, but from the facility it aflbrded to powerful and 
unscrupulous neighbors to control, by their intrigues, the election of her kings. But the 
fact, that a government, in which the principle was carried to the utmost extreme, not 
only existed, but existed for so long a period, in great power and splendor, is proof con- 
clusive both of its practicability and its compatibility with the power and permanency 
of government. 

" Another example, not so striking indeed, but yet deserving notice, is furnished by 
the government of a portion of the aborigines of our own country. I refer to the Con- 
federacy of the Six Nations, who inhabited what now is called the western portion of 
the State of New York. One chief delegate, chosen by each nation, associated with six 
others of his own selection— and making, in all, forty-two members— constituted their 
federal or general government. When met, they formed the council of the union, and 
discussed and decided all questions relating to the common welfare. As in the Polish 
Diet, each member possessed a veto on its decision, so that nothing could be done with- 
out the united consent of all. But this, instead of making the Confederacy weak or Im- 
practicable, had the opposite effect. It secured harmony in council and action, and with 
them a great increase of power. The Six Nations, in consequence, became the most 
powerful of all the Indian tribes within the limits of our country. They carried their 
conquest and authority far beyond the country they originally occupied." 

(o) The essay of Bacon, "Of Innovations," which follows, is almost too familiar to be 
quoted, but the true principles of reform are nowhere so admirably and wisely ex- 
pressed : 

" Time is the greatest innovator, and if time of course alter things to the worse, and 
wisdom and counsel shall not alter them to the better, what shall be the end ? 
It is true, that what is settled by custom, though it be not good, yet at least it is fit ; and 
those things which have long gone together, are, as it were, confederate within them- 
selves ; whereas new things piece not so well ; but, though they help by their utility, yet 
they trouble by their inconformity ; besides, they are like strangers, more admired and 
less favored. All this is true, if time stood stUl : which contrariwise, moveth so round, 
that a froward retention of custom is as turbulent a thing as an innovation ; and 
they that reverence too much old tunes are but a scorn to the new. It were good, 
therefore, that men in their innovations would follow the example of time itself, which 
indeed inuovateth greatly, but quietly, and by degrees scarce to be perceived ; 
for otherwise whatsoever is new is unlooked for; and ever it mends some and pairs 
(injures or impairs) other ; and he that is holpen, takes it for a fortune, and thanks the 
time ; and he that is hurt, for a wrong, and imputeth it to the author. It is good also 
not to try experiments in States, except the necessity be urgent, or the utility evident ; 
and well to beware that it be the reformation that draweth on the change, and not the 
desire of change that pretendeth the reformation ; and lastly , that the novelty, though 


it be not rejected, yet be held for a suspect, and, as the Scripture saith, ' That we make 
a stand upon the ancient way, and then look about us, and discover what is the 
straight and right way, and so to walk in it.' " 

(p) Napoleon is reported to have said that all Europe must become either republican 
or Cossack ; and, it is not unreasonable to expect — existing political tendencies remain- 
ing unchanged — that Europe, as well as Asia, will finally fall under the dominion of 
Russia ; and thus the idea of the ivorld Mate, entertained by some of the German jurists, 
be practically realized. 

iq) The subject is ably and entertainingly treated by Mr. Fowler in The City State. 

MAR 17 1896 

May 17, 1895.] ^"^5 





Vol. XXXrv. December, 1895. No. 149. 

Stated Meeting, May 17, 1895. 
President, Mr. Fraley, in the Chair. 

Correspondence was submitted as follows: 

A letter from the Academie E. des Sciences, Lisbon, Portu- 
gal, announcing the death of its Secretary, Prof. Manuel 
Pinheiro Chagas, April 8, 1895. 

An invitation from the New Jersey Historical Society, 
Newark, to the American Philosophical Society, to participate 
in the celebration of its serai-centennial anniversary, Thursday, 
May 16, 1895, 

Letters of envoy were received from the Observatoire 
Physique Central, St. Petersburg, Russia ; Royal Statistical 
Society, Zoological Society, London, England ; Massachusetts 
Institute of Technology, Boston. 

Letters of acknowledgment were received from the R. 
Accademia dei Lincei, Rome, Italy (145); Botanical Society 
of Canada, Halifax, N. S. (146); Massachusetts Institute of 
Technology, Boston (111-114, 116-126); American Antiqua- 
rian Society, Worcester, Mass. (143, 146); University of the 
City of New York (143, 146); Mr. James C. Carter, New 
York, N. Y. (119, 143). 

Accessions to the Library were reported from the Royal 
Asiatic Society (Straits Branch), Singapore; Government 
Museum, Madras, India; Institut Egyptien, Cairo; Societe 

PROC. AMER. PHILOS. SOC. XXXIV. 149. 2 Q. PRINTED. NOV. 15, 1895. 


[May 17 

Imperiale des Naturalistes, Moscow, Russia ; Comite Geologi- 
que, Observatoire Physique Central, St. Petersburg, Russia; 
Antliropologische Gesellscbaft, Vienna, Austria ; K. P. Greolo- 
gische Landesanstalt und Bergakademie, Berlin, Prussia ; 
Zoological and Geological Societies, London, England ; Natu- 
ral History Society, Montreal, Canada ; Agricultural Experi- 
ment Station, Amherst, Mass.; Messrs. Wharton Barker, 
John F. Lewis, Philadelphia ; Agricultural Experiment 
Station, Agricultural College, Miss.; Texas Academy of 
Science, Austin ; Observatorio Meteorolugico Central, Insti- 
tuto Medico Nacional, Mexico, Mexico ; Observatorio Astrono- 
mico y Meteorolugico, San Salvador, C. A. 

A photograph for the Society's album was received from 
Mr. Julius F. Sachse, Philadelphia. 

The following deaths were announced : 

Prof. Carl Vogt, Geneva, Switzerland: b. July 5, 1817; d. 
May 5, 1895. 

Hon. Eckley B. Coxe, Drifton, Pa.: b. June 4, 1839 ; d. 
May 13, 1895.' 

After the reading of the minutes and the correspondence 
and donations, it was moved that the order of business be sus- 
pended in order that the election of members be proceeded 
with. Carried. 

The names of the nominees were then read and spoken to. 

On motion, a recess was taken in order to give members an 
opportunity to vote. 

In accordance with the By-Laws, the Secretaries acted as 
tellers for the election. 

After the recess, Mr. C. Stuart Patterson made a report from 
the Committee on the Henry M. Phillips Prize Essay, and 
ofifered the following resolution : 

Resolved, That after the as^ard signed by the judges to whom were 
referred the essays submitted under the terms of the circular of May 1, 
1893, in competition for the Henry M. Phillips Prize, shall have been 
presented to the President of the Society, the sealed envelopes containing 
the names of the competitors shall be opened by the President and Treas- 
urer of the Society, or either of them. Carried. 

1895.] ^'^* 

The following motion was oflfered by Mr. Price, and 
adopted : 

Resolved, That when the official report and certificate of the Committee 
of Judges of the Henry M. Phillips Prize Essays shall be received, and 
the President and Treasurer shall open the envelopes and find the name 
of the person entitled to the prize for the crowned essay, the Treasurer be 
authorized to pay him the prize of five hundred dollars from the Phillips 

An obituary notice of Prof. Henry Copp^e by Mr. J. G. 
Eosengarten was read by title. 

An obituary notice of Dr. W. S. W. Euschenberger was 
read by Dr. Brinton. 

Mr. Bache read a paper for the Proceedin^js on " Personal 

He said that, in order to fix the fact of his priority in what 
he believes to be the discovery, that personal equation, or 
relative reaction time of individuals, as it is variously called, 
is related to race, he should like to state the final results 
of some experiments which he has lately had made. From 
auditory, visual, and tactile tests, applied to thirty-three differ- 
ent individuals, represented by Whites, Indians and Negroes, 
divided into their three classes, consisting respectively of 12, 11, 
and 10 individuals, comprising in the aggregate 990 observa- 
tions, giving the reaction time of these individuals by the sev- 
eral tests, as recorded by electro-magnetic apparatus, are 
derived the following final means, to the nearest thousandth 
of a second. 


White 147 165 136 

Indian 116 136 115 

Negro 130 153 123 

The superior quickness of the Negro, as compared with the 
White is, therefore, so far as these figures show, given by the 
following figures of differences. 


17 13 13 


[May 17, 

And the superior quickncFs of the Indian, as compared with 
the Negro, by the following figures of differences. 


14 17 

Therefore the superior quickness of the Indian, as compared 
with the White, is shown bj the observations to be repre- 
sented by the following figures of differences. 


31 29 21 

Mr. Bache went on to say that, as a paper by him on the 
subject had been sent to a scientific magazine for publication, 
he did not deem himself at liberty to add more than that he 
believes that, other things being equal, the lower the race the 
quicker is the reaction time. He accounts, he said, for the 
superiority in quickness of the Indian over the Negro by 
recognizing that the life of the Indian for thousands of years 
promoted quickness of reaction, while that of the Negro has 
tended to slowness. According to his view, he added, the 
more intellectual the development, the slower ought to be the 
reaction in all but the product of the higher thought. So far 
as the observations presented show, the most intellectual of 
races, the White, exhibits by far the slowest reaction time. 

Dr. Cope read his paper on " The Pamunkey Formation of 
the Chesapeake Eegion and its Fauna," as announced. 

Dr. Brinton described Mr. Cushing's observations on the 
relics from the caves of France. 

Prof. Cope made further observations on the subject. 

Dr. Hartshorne made remarks on a recent visit he had made 
to the Ainos of Japan, supposed by many to have been the 
original inhabitants of the islands. They are now rapidly 
dying out and are confined to the northern isles of the archi- 

Pending nomination No. 1329 was read. 

Mr. Du Bois made a verbal report from the Curators in ref- 
erence to the collection of coins of the Society in deposit at 
the Pennsylvania Museum. 

1895.] 339 

Dr. Frazer moved that the Curators be requested to con- 
tinue their identification and examination of the coins before 
taking a receipt from the Museum, with power to act when 
satisfied. Carried. 

The Tellers reported that the following nominees had re- 
ceived the requisite number of votes, and were therefore duly 
elected : 

No. 2253. M. Georges Bertin, Paris, France. 

No. 2254. Marshall D. Ewell, M.D., LL.D., Chicago, 111. 

No. 2255. Clarence S. Bement, Philadelphia. 

No. 2256. George Tucker Bispham, Philadelphia. 

No. 2257. Joel Cook, Philadelphia. 

No. 2258. Hon. Mayer Sulzberger, Philadelphia. 

No. 2259. Frederick D. Stone, Philadelphia. 

No. 2260. James C. Carter, New York, N. Y. 

No. 2261. Hon. Edward J. Phelps, New Haven, Conn. 

No. 2262. Hon. George F. Edmunds, Burlington, Vt. 

No. 2263. Hon. J. Randolph Tucker, Lexington, Va. 

No. 2264. M. Marcelin Berthelot, D. es Sc, Paris, France. 

No. 2265. E. S. Morse, Salem, Mass. 

No. 2266. Paul Heyse, Munich, Bavaria. 

No. 2267. Paolo Montegaze, Firenze, Italia. 

No. 2268. F. W. Putnam, Salem, Mass. 

No. 2269. Mrs. Zelia Nuttall, Dresden, Saxony. 

No. 2270. Augustus F. Franks, London, England. 

No. 227 L George Ebers, Berlin, Prussia. 

No. 2272. A. Marshall Elliott, Baltimore, Md. 

No. 2273. Jean Leon Gerome, Paris, France. 

No. 2274. Willard Gibbs, Ph.D., New Haven, Conn 

After which the Society was adjourned by the President. 

340 (^Sept. 6, 

Stated Meeting^ Septemler 6^ 1895. 
Mr. Harold Goodwin, in the Chair. 
Present, 6 members. 

Correspondence was submitted as follows : 

Letters acknowledging election to membership from Mrs. 
Zelia Nuttall, Dresden, Saxony ; Dr. George Ebers, Berlin, 
Prussia; Dr. Paul Heyse, Munich, Bavaria; Prof. Paolo 
Montegaze, Florence, Italy ; Dr. M. Berthelot, Paris, France ; 
Hon. George F. Edmunds, Burlington, Vt.; Prof. F. W. Put- 
nam, Cambridge, Mass.; Prof. E. S. Morse, Salem, Mass.; Prof. 
J. Willard Gibbs, New Haven, Conn.; Hon. Edward J. Phelps, 
New Haven, Conn.; Mr. James C. Carter, New York, N. Y.; 
Mr. George Tucker Bispham, Philadelphia, Pa.; Mr. Joel 
Cook, Philadelphia, Pa.; Mr. Frederick D. Stone, Phila- 
delphia, Pa.; Hon. Mayer Sulzberger, Philadelphia, Pa.; Mr. 
A. Marshall EUiott, Baltimore, Md.; Hon. J. Eandolph 
Tucker, Lexington, Va.; Dr. Marshall D. Ewell, Chicago, 111. 

Letter of resignation from Mr. Henry W. Spangler, Phila- 
delphia, Pa. 

A letter from the K. Leopoldinisch-Carolinische Akademie, 
Halle a. S., July 1, 1895, announcing the death of its President, 
Prof. Dr. Hermann Knoblauch, June 30, 1895, in his seventy- 
sixth year. 

A letter from the Physikalisch-Okonomische Gesellschaft, 
Kcinigsberg, i. Pr., May 24, 1895, announcing the death of its 
honorary President, Prof. Dr. Franz Ernst Neumann, May 23, 

Letters of envoy were received from the Geological Survey 
of India, Calcutta ; Naturforscher Gesellschaft, Dorpat, Russia ; 
Naturforschende Verein, Briinn, Austria ; Geologische Reichs- 
anstalt, Vienna, Austria ; K. Siichsische Gesellschaft der 
Wissenschaften, Leipzig ; K. Geodatisches Institut, Potsdam, 
Prussia; Verein filr Vaterljindische Naturkunde in Wlirttem- 
berg, Stuttgart ; Facultc des Sciences, Marseille, France ; Musee 
Guimet, Bureau des Longitudes, Socidt^ Gcologique de France, 

1895.] ^■il 

Paris, France ; Royal Observatory, Greenwich, Bng.; Royal 
Statistical Society, Zoological Society, Meteorological Office, 
London, Eng.; Mr. Samuel A. Green, Boston, Mass.; Geological 
Society of America, Rochester, JST. Y.; University Extension 
Society, Philadelphia; Johns Hopkins University, Baltimore, 
Md.; Treasury Department, Washington, D.C.; Library of 
University of California, Berkeley ; Musde de La Plata, Argen- 
tine Republic, S. A. 

Letters of acknowledgment ( Transactions) were received from 
the Societe Geologique de France, Paris (i-xiii, xiv, 1, 2 ; xv, 
1, 2) ; Geological Survey of Canada, Ottawa (xviii, 2) ; Public 
Library, Boston, Mass. (xviii, 2) ; Museum of Comparative 
Zoology, Cambridge, Mass. (xviii, 2) ; American Antiquarian 
Society, Worcester, Ma^s. (xviii, 2) ; Yale University, New 
Haven, Conn, (xviii, 2) ; Historical Society, New York (xviii, 
2); Franklin Institute, Academy of Natural Sciences, Library 
Company of Philadelphia, Philadelphia (xviii, 2); Smithsonian 
Institution (113 pks.), U. S. Geological Survey, Washington, 
D. C. (xviii, 2) ; University of California, Berkeley (xviii, 2) ; 
State Historical Society of Wisconsin, Madison (xviii, 2) ; 
Kansas Academy of Science, Topeka (xviii, 2). 

Letters of acknowledgment were received from Royal Geo- 
graphical Society, Brisbane, Queensland (14:2, 1-14); Linnean 
Society of N, S. Wales, Elizabeth Bay, Sydney (145) ; Tokyo 
Library, Tokyo, Japan (142, 144, 145) ; Musee Polytechnique, 
Societe Imp. Amis des Sciences Naturelles, etc., Moscow, 
Russia (143, 146); Central. Physical Observatory, Royal Pub- 
lic Library, St. Petersburg, Russia (143, 14(5); Astronomical 
Observatory, Tashkent, Russia (143, 146) ; Norske Universitets 
Bibliothek, Christiania, Norway (143, 146) ; Bureau Central 
de Statistique, Stockholm, Sweden (143, 146) ; K. Danske 
Videnskabernes Selskab (143, 145, 146), Prof. Japetus 
Steenstrup (143, 146), Copenhagen, Denmark ; R. Zoological 
Society, Amsterdan, Netherlands (143, 146) ; K. Bibliotheek, 
K. Zool.-Botanische Genootschap, The Hague, Netherlands 
(143, 146); Musee Teyler, Musee Colonial, Harlem, Nether- 
lands (143, 146) ; Societe R. de Geographic, Antwerp, Belgium 

342 [Sept. 6, 

(143, 146); Musee R. d'Histoire Naturelle de Belgique, 
Bruxelles (14B, 146); Naturforschende Verein, Briinn, Austria 
(142, 144) ; K. K. Sternwarte, Prag, Austria (143, 146) ; K. K. 
Naturhistorisches Hofmuseum (145), Dr. Aristides Brezina 
(143, 146), Franz v. Hauer (143-146), Vienna, Austria ; Natur- 
forschende Gesellscliaft, Sohweiz. Naturforsch. Gesellschaft, 
Bern, Switzerland (14:3, 146) ; Mr. H. de Saassure, Geneva, 
Switzerland (143, 146); Prof. E. Renevier, Lausanne, Switzer- 
land (143, 145, 146); R. Istituto di Studi Superiore, Firenze, 
Italia (143, 146); R. Istituto Lornbardo, Milano, Italia (145) ; 
Societa Africana, Napoli, Italia (125, 126, 143, 144, 146); R. 
Comitato Geologico (145), Prof. Guiseppe Sergi (L43, 145, 
146), Roma, Italia; R. Osservatorio, Prof. Guido Cora, Torino, 
Italia (145); Naturforschende Gesellschaft des Osterlandes, 
Altenburg, Germany (143, 146); Redaction der Naturwissen- 
schaftlichen Wcchenschrift (143), Gesellschaft fiir Erdkunde, 
K. P. Akademie d. Wissenschaften (143, 146), Berlin, Prussia ; 
K. Universitats Bibliothek, Bonn, Prussia (143, 146) ; Natur- 
wissenschaftlicher Verein, Bremen, Germany (143,146); K. 
Sachs. Meteorolog. Institut, Chemnitz, Saxony (143, 146) ; K. 
Siichs. Alterthumsverein (143, 145, 146), Verein f. Erdkunde 
(143, 146), Dresden, Saxony; Naturforschende Gesellschaft, 
Emden, Prussia (143, 146); Physikalisch-Medicinische 
Societat, Erlangen, Bavaria (112-146) ; Senckenbergische 
Naturforschende Gesellschaft, Frankfurt a. M. (143) ; Natur- 
forschende Gesellschaft, Freiburg i. B. (143, 146); Ober- 
hessische Gesellschaft, fiir Natur- und Heilkunde, Giessen, Ger- 
many (143, 146); Geographische Gesellschaft, Hamburg, Ger- 
many (143, 146); Geographisciie Gesellschaft, Hannover, Prussia 
(141, 145); Astronomische Gesellschaft (143, 145, 146), K. 
Sternwarte (143, 145, 146), M. Otto Bohtlingk, Prof. I. Victor 
Carus, Dr. Caspar Rene Gregory, Leipzig, Saxony (143, 116); 
Verein liir Erdkunde, Metz, Germany (143, 146) ; Naturhis- 
torische Gesellschaft, Nurnberg, Bavaria (143); K. P. Geoda- 
tische Institut, Potsdam, Prussia (143, 146); Verein fiir Vater- 
liindische Naturkunde, Stuttgart, Wiirttemberg (142-146); 
Prof. F. von Sandberger, Wiirzburg, Bavaria (143, 146); 

1895.] ^*^ 

Academie des Science?, etc., Anglers, France (145) ; Society des 
Sciences, Physiques, etc., Bordeaux, France (143-146) ; Societe 
de Sciences Naturelles et Archdologiques de la Creuse, Gueret, 
France (143) ; Blbllotheque Universitaire, Lyons, France (143) ; 
Socidtes de Geograpliie, Gdologlque, d'Histoire, Physique, 
" Le Cosmos," Musde Gulmet (143, 146), Museum d'llistoire 
Naturelle (141, 143, 146), Ecole Polytechnique (144-146), 
Bureau des Longitudes (145), Prof. A. Daubree (143, 146), Dr. 
E. T. namy (139-146), Prof. Abel Hovelacque (143, 146), 
Prof. E. Mascart (143, 146), Dr. Edward Pepper (143, 146), 
Paris, France; Mr. Lucien Adam, Rennes, France (143, 146); 
Societe des Antiquaires de la Morinie, St. Omer, France (143, 
146); Mr. Samuel Timmins, Arley, Coventry, Eng. (143, 146); 
University Library, Cambridge, Eng. (143, 146); Mr. Alfred 
R. Wallace, Parkston, Dorset, Eog. (143); R. Cornwall Poly- 
technic Society, Falmouth, Eng. (143, 146) ; Linnean Society, 
Royal Society, Meteorological, Astronomical, Statistical Socie- 
ties, Society of Antiquaries, Royal Institution, R,^ Geographical 
Society, Victoria Institute (143, 146), Geological Society of 
LondoQ (143), Chemical Society (140-146), Prof. William 
Crookes (143, 146), Mr. Juhlin Daunfelt (143, 146), Mr. W. 
n. Flower (143, 146), Sir James Paget (143), Sir Rawson W. 
Rawson (143, 146), Sir Heury Thompson (146), Prof. W. C. 
Unwin (143, 146), London, Eng.; Geographical Society, 
Literary and Philosophical Society, Prof. W. B. Dawkin?, 
Manchester, Eng. (143, 146) ; Natural History Society, Liter- 
ary and Piiilosophical Society, New Castle u. T., Eng. (143, 
146) ; Radcliffe Observatory, Sir H. W. Acland, Oxford, Eng. 
(143, 146); R. Geological Society of Cornwall, Penzance, Eng. 
(143, 146); Sir Henry Bessemer, Surrey, Eng. (143, 146); Dr. 
Isaac Roberts, Starfield, Crowborough, Sussex, Eng. (143, 146); 
Geological and Polytechnic Society, Yorkshire, Eng. (143, 
145, 146); Royal Society, Prof. James Geikie, Edinburgh, 
Scotland (143, 146); Philosophical Society, Glasgow, Scotland 
(143,116); Natural History and Philosophical Society, Bel- 
fast, Ireland (142, 144, 145) ; Royal Dublin Society, Dublin, 
Ireland (143, 146); Mass. Institute of Technology, Boston 

PROC. AMER. PHILOS. SOC. XXXIV. 149. 2 R. PRINTED NOV. 15, 18 f . 

^^^ IBept. 6, 

(Catalogue^ Parts i-iv); Prof. M. H. Boy^, Coopersburg, Pa. 
( 142) ; Lackawanna Institute of History and Science, Scrantou, 
Pa. (144); Prof. Daniel Kirkwood, Riverside, Cal. (14(5); 
Ohio State Arch geological and Historical Society, Columbus 
(143, 146) ; Prof. G. W. Hough, Evanston, 111. (142); Museo 
de la Plata, La Plata. Argentine Eepublic (145, and Catalogue^ 
Parts iv) ; Istituto Fiseco-Geographico Nacional, San Jose de 
Cofta Rica, C. A. (142, 144, 145). 

Letters of acknowledgment (147) were received from the 
Franklin Institute, Historical Society of Pennsylvania, 
Numismatic and Antiquarian Society, Library Company of 
Philadelphia, Academy of Natural Sciences, Wagner Free In- 
stitute of Science, Free Library of Philadelphia, Profs. John 
Ashhurst, Jr., John H. Brinton, F. A. Genth, Jr., Lewis M. 
Haupt, H. V. Hilprecht, J. P. Lesley, Drs. Morris Longstreth, 
Charles A. Oliver, C. N. Peirce, Charles Schaffer, H. Clay 
Trumbull, Messrs. R. L. Ashhurst, Cadwalader Biddle, Arthur 
E. Brown, Charles Bullock, Joel Cook, Patterson Du Bois, 
Jacob E. Eckfeldt, Robert Patterson Field, Benjamin Smith 
Lyman, James T. Mitchell, Franklin Piatt, J. Sergeant Price, 
Theo. D. Rand, J. G. Rosengarten, Julius F. Sachse, L. A. 
Scott, Coleman Sellers, F. D. Stone, Mayer Sulzberger, L. 
Vossion, Samuel Wagner, Joseph Wharton, Talcott Williams, 
Mrs. Helen Abbott Michael, Philadelphia ; Prof. John F. 
Carll, Pleasantville, Pa ; Mr. Heber S. Thompson, Pottsville, 
Pa.; Rev. F. A. Muhlenberg, Reading, Pa.; Lackawanna In- 
stitute of History and Science, Scranton, Pa.; Mr. Thomas S. 
Blair, Tyrone, Pa; Dr. John Curwen, Warren, Pa.; Philo- 
sophical Society, Hon. William Butler, Prof. J. T. Ruthrock, 
Mr. Philip P. Sharpies, West Chester, Pa.; Col. Henry A. 
DuPont, Montchanen, Del.; U. S. Naval Institute, Annapolis, 
Md.; Maryland Institute lor the Promotion of the Mechanic 
Arts, Enoch Pratt Free Library, Baltimore, Md.; U. S. Coast 
and Geodetic Survey, U. S. Geological Survey, Prof. S. F. 
Emmons, Dr. W. J. Hoffman, Profs. C. V. Riley, Charles A. 
Schott, Washington, D. C ; ISlr. Jedediah Ilotchkiss, Staunton, 
Va.; Prof. J. W. Mallet, University of Virginia, Va.; Prof. I. 



C. "White, Morgantown, W. Va.; Agricultural Experiment 
Station, Ealeigh, N. C; Georgia Historical Society, Savannah ; 
Experiment Station, Agricultural College, Miss.; Athenceum 
Library, Columbia, Tenn.; Agricultural Experiment Station, 
Knoxville, Tenn.; Texas Academy of Science, Austin ; Uni- 
versity of California, Berkeley ; Historical Socitty of Southern 
California, Los Angeles ; Lick Observatory, Mt. Hamilton, 
Cal.; Historical Society, Academy of Sciences, San Francisco, 
Cal.; Prof. J. C. Branner, Stanford University, Cal.; Agricul- 
tural Experiment Station, Agricultural College, Mich.; Astro- 
nomical Observatory, Cincinnati, O.; Archaeological and His- 
torical Society, Columbus, O.; Editors o^ Journal Comparative 
Neurology^ Granville, 0.; State Historical Society of Wis- 
consin, University of Wisconsin, Academy of Sciences, etc., 
Madison, Wis.; Indiana Society of Civil Engineers, etc., Rem- 
ington; Field Columbian Museum, Dr. M. D. Evvell, Chicago, 
111.; Prof. G. W. Hough, Evanston, 111. 

Accessions to the Library were reported from the Royal 
Society of South Australia, Adelaide ; Linnean Society of N. 
S. Wales, Sydney ; Tokyo Library, Tokyo, Jajjan ; Institut 
Egyptien, Cairo; Naturforscher Gesellschaft, Dorpat, Russia; 
Societe des Naturalestes, Kiew, Russia; Naturforscher Yerein, 
Riga, Russia ; Societe Imp. Mineralogique, St. Petersburg, 
Russia; Bat. Genooschap van Kunsteu en Wetenschappen, 
Batavia, Java ; Koloniaal Museum, Haarlem, Holland ; K. 
Bibliotheek, 's Gravenhage, The Hague ; Society R. de 
Geographic, Anvers, Belgique; Societe Beige de Geologique, 
M. C. Klement, Bruxelles, Belgique ; Naturforschende Verein, 
Briinn, Austria; K. Sternwarte, Gesellschaft der Wissen- 
schaften, Prag, Bohemia; K. K. Geologische Reichsanstalt, 
Vienna, Austria ; Botanische Verein der Provinz Branden- 
burg, Verein zur Beforderung des Gartenbaues in den K. P. 
Staaten, K. P. Meteorologisches Institut, Berlin, Prussia ; 
Naturwissenschaftlicher Verein, Bremen, Germany ; Naturwis- 
senchaftliche Gesellschaft "Iris," Dresden, Sax