text:
Winans v. Denmead/Dissent Campbell

Mr. Justice CAMPBELL.

I dissent from the opinion of the court in this case.

The plaintiff claims to have designed and constructed a car for the transportation of coal on railroads which shall carry the heaviest load, in proportion to its own weight.

His design consists in the adoption of the 'conical form' 'for the body of the car,' 'whereby the weight of the load presses equally in all directions;' does not 'tend to change the form of the car;' permits it 'to extend down within the truck,' lowering 'the centre of gravity of the load,' and by its reduced size at the bottom adding to its strength and durability. He claims as his invention, and it is the whole of the change which he has made in the manufacture of cars, 'the making of the body of the car in the form of the frustum of a cone.'

It is agreed that a circle contains a greater area than any figure of the same perimeter; that the conical form is best suited to resist pressure from within, and that the reduced size at the bottom of the car is favorable to its strength. The introduction of the cars of the plaintiff, upon the railroad, for the transportation of coal, was attended by a great increase of the loads in proportion to the weight of the car. The merits of the design are frankly conceded. Nevertheless, it is notorious, that there does exist a very great variety of vessels in common domestic use, 'of a conical form,' or, 'of the form of the frustum of a cone,' for the reception and transportation of articles of prime necessity and constant demand, such as water, coal, food, clothing, &c. It is also true that the properties of the circle, and of circular forms alluded to in the patent of the plaintiff, are understood, and appreciated, and have been applied in every department of mechanic art. One cannot doubt that a requisition from the transportation companies for cars of a diminished weight, and an increased capacity, upon the machinists and engineers connected with the business, would have been answered promptly by a suggestion of a change in the form of the car. The merit of the plaintiff seems to consist in the perfection of his design, and his clear statement of the scientific principle it contains.

There arises in my mind a strong if not insuperable objection to the admission of the claim, in the patent for 'the conical form,' or the form of the frustum of a cone,' as an invention. Or that any machinist or engineer can appropriate by patent a form whose properties are universally understood, and which is in very common use, in consequence of those properties, for purposes strictly analogous. The authority of adjudged cases seems to me strongly opposed to the claim. Hotchkiss v. Greenwood, 11 How. 249; Losh v. Hague, Web. Pat. Cas. 207; Winans v. Providence Railroad Company, 2 Story, 412; 2 Id. 190; 2 Car. & Kir. 1022; 3 W. H. & Gord. 427.

Conceding, however, that the invention was patentable, and this seems to have been conceded in the Circuit Court, the inquiry is, what is the extent of the claim? The plaintiff professes to have made an improvement in the form of a vehicle, which has been a long time in use, and exists in a variety of forms. He professes to have discovered the precise form most fitted for the objects in view. He describes this form, as the matter of his invention, and the principle he develops applies to no other form. For this he claims his patent. We are authorized to conclude, that his precise and definite specification and claim were designed to ascertain exactly the limits of his invention. Davis v. Palmer, 2 Brock. 298.

The car of the defendants is of an octagonal form, with an octagonal pyramidical base. There was no contradiction, in the evidence given at the trial, in reference to its description, nor as to the substantial effects of its use and operation. In the size, thickness of the metal employed in its construction, weight, and substantial and profitable results, the one car does not materially vary from the other. The difference consists in the form, and in that, it is visible and palpable.

The Circuit Court, acting upon these facts, of which there was no dispute, instructed the jury that an infringement of the plaintiff's patent had not taken place. I do not find the question before the court a compound question of law and fact. The facts were all ascertained, and upon no construction of those facts was the plaintiff, in my opinion, entitled to a judgment.

In theory, the plaintiff's car is superior to all others. His car displays the qualities which his specification distinguishes. The equal pressure of the load in all directions; the tendency to preserve the form, notwithstanding the pressure of the load; the absence of the cross strain; the lowering of the centre of the gravity of the load,-are advantages which it possesses in a superior degree to that of the defendants.' Yet the experts say that there is no appreciable difference in the substantial results afforded by the two.

The cause for this must be looked for in a source extrinsic to the mere form of the vehicles. Nor is it difficult to detect the cause for this identity in the results in such a source.

The coarse, heavy, cumbrous operations of coal transportation do not admit of the manufacture of cars upon nice mathem atical formulas, nor can the loads be adjusted with much reference to exactness. There is a liability to violent percussion's and extraordinary strains, which must be provided for by an excess in the weight and thickness of the material used. Then, unless the difference in the weight of the load is great, there will be no correspondent difference in the receipts of the transportation companies.

The patentee, not exaggerating the theoretical superiority of the form of his car, overlooked those facts which reduced its practical value to the level of cars of a form widely veriant from his own. The object of this suit is to repair that defect of observation. It is, that this court shall extend, by construction, the scope and operation of his patent, to embrace every form which in practice will yield a result substantially equal or approximate to his own.

In the instruction asked for by the plaintiff, 'form and circumstances' are treated as more or less immaterial, but the verdict is claimed if the defendants have constructed cars 'which, substantially on the same principle and in the same mode of operation, accomplish the same result.'

The principle stated in the patent applies only to circular forms.

The modes of operation in coal transportation have experienced no change from the skill of the plaintiff, except by the change from the rectilineal figure to the circular.

The defendant adheres to the rectilineal form. The result accomplished by the use of the two cars is the same-a more economical transportation of coal. This result it is that the plaintiff desires to appropriate, but this cannot be permitted. Curtis on Patents, § 4, 26, 27, 86, 87, 88; 2 Story, 408, 411.

In the case of Aiken v. Bemis, 3 Wood. & M. 349, the learned judge said, 'When a patentee chooses to cover with his patent the material of which a part of his machine is composed, he entirely endangers his right to prosecute when a different and inferior material is employed, and one which he himself, after repeated experiment, had rejected.'

The plaintiff confines his claim to the use of the conical form, and excludes from his specification any allusion to any other. He must have done so advisedly. He might have been unwilling to expose the validity of his patent, by the assertion of a right to any other. Can he abandon the ground of his patent, and ask now, for the exclusive use of all cars which, by experiment, shall be found to yield the advantages which he anticipated for conical cars only?

The claim of to-day is, that an octagonal car is an infringement of this patent. Will this be the limit to that claim? Who can tell the bounds within which the mechanical industry of the country may freely exert itself? What restraints does this patent impose in this branch of mechanic art?

To escape the incessant and intense competition which exists in every department of industry, it is not strange that persons should seek the cover of the patent act, for any happy effort of contrivance or construction; nor that patents should be very frequently employed to obstruct invention, and to deter from legitimate operations of skill and ingenuity. Thid danger was foreseen, and provided for, in the patent act. The patentee is obliged, by law, to describe his invention, in such full, clear, and exact terms, that from the description, the invention may be constructed and used. Its principle and modes of operation must be explained; and the invention shall particularly 'specify and point' out what he claims as his invention. Fulness, clearness, exactness, preciseness, and particularity, in the description of the invention, its principle, and of the matter claimed to be invented, will alone fulfil the demands of Congress or the wants of the country. Nothing, in the administration of this law, will be more mischievous, more productive of oppressive and costly litigation, of exorbitant and unjust pretensions and vexations demands, more injurious to labor, than a relaxation of these wise and salutary requisitions of the act of Congress. In my judgment, the principles of legal interpretation, as well as the public interest, require, that this language of this statute shall have its full significance and import.

In this case the language of the patent is full, clear, and exact. The claim is particular and specific.

Neither the specification nor the claim, in my opinion, embrace the workmanship of the defendants. I therefore respectfully dissent from the judgment of the court, which implies the contrary.

title: Winans v. Denmead/Dissent Campbell


text:
Page:Poems, Volume 1, Coates, 1916.djvu/254

232 Long, long ago, to such seclusion—

Filled with accusing shame and grieved confusion—

Life's noontide dark, its promise dead,

The youthful Daphnis fled.

Child of the God, ill could he brook

That curious eyes should gaping look

Upon the sightless face,

Where, deeply written, burned his deep disgrace.

Fearful of wrongs he could not see,

He brought his bruisèd heart to thee.

And thou with solemn stillness didst caress him.

Forbearing to afflict with comfort crude,

Mistimed advice or cheap solicitude,

Thou with thy mild tranquillity didst bless him.

Thou didst not proffer fond, unmeaning words;

But whisperings of leaves, and notes of birds,

And breathings of fresh flowers; things which stole

Through the unlighted chambers of his soul,

And made him—how, he knew not—less alone.

Like dreams that come where misery hath slept,

Recalling tender hopes and pleasures flown,

He welcomed them, and wept.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:Poems, Volume 1, Coates, 1916.djvu/255

Rh Then with unsteady hand from out his breast

He drew the pipe of Pan—the reedy flute

That long neglected in inglorious rest,

Dark, like his vision, lay there cold and mute.

Up to his quivering lips he raised it slowly;

A moment paused, then blew a fainting strain:

His rigid brow relaxed, his head drooped lowly,

He felt the old, the sweet, immortal pain!

Again the mellow, melting notes he tried,—

Again meek Echo caught her breath and sighed.

Then freer, stronger, lovelier grew the lay;

Uncertain fears fled guiltily away;

The lilies, listening, paled, the breeze grew whist,

The violets flushed to deeper amethyst,

The restless Hours, departing, longed to stay.

And he forgot his melancholy state,

Fair Nomia's blissful love and fatal hate,—

In the rapt exaltation of his mind,

Forgot that he was blind;

And poured that moving music in thine ear,

Which still Sicilian shepherds in the dawn

And deepening twilight, from some balmy lawn

Or grove of Ætna, fondly think they hear.


text:
Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/381

 Rh forms of the version he in other respects slavishly follows! An example will make this plain.

The Boroma is one of the most important tales edited and translated by Mr. O'Grady. It so happens that Mr. Whitley Stokes, whilst Silva Gadelica was passing through the press, published text and version of the same tale in vol. xii of the Revue Celtique. Means is thus afforded to the non-Celtic student of testing the method of editing and translating of both scholars. One singularly reassuring result of the comparison between the two versions is that for practical purposes Middle Irish has been mastered; substantially, the two renderings, made independently of each other, agree. The Boroma, which tells of the tribute levied upon Leinster by an over-king of Ireland in the second century, and continued by his successors until the seventh century, is preserved mainly in two MSS., the 12th-century Book of Leinster and the 15th-century Book of Lecan. Mr. O'Grady prints the former version, which is incomplete, at the end, and leaves out a number of passages found in Lecan. Mr. Stokes supplies all deficiences in the Leinster text from that in Lecan, bracketing the passages thus dealt with. I select a few of the passages to show what is lost in Mr. O'Grady's version.

In the course of the tale it is told how Aed, son of Ainmire, is defeated and slain in his attempt to levy the tribute. Lecan adds: "but though Aed fell on account of the Boroma he had levied it twice without a battle." Now whether this be addition to the original text by a non-Leinster scribe, or its absence in the Book of Leinster be due to deliberate omission from patriotic motives, there can be no doubt as to the importance of the passage for estimating the historic value of the narrative. When Aed dies his wife laments as follows:


text: Poems (Coates 1916)/Volume I/Daphnis

title: Poems (Coates 1916)/Volume I/Daphnis


text:
Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/382

 374

Telltown being, so to say, the religious, and Tara the political headquarters of the Irish kings. This exquisite quatrain is only found in Lecan, and is thus absent from Mr. O'Grady's pages, the chief object of which is to bring the beauty of Irish romance home to the English reader!

The next passage is of greater importance and of special interest to folk-lorists as presenting the oldest example of a familiar incident of Gaelic story-telling—the counterspell. It is told how Cummascach, son of the high-king of Ireland,, starts forth on a "free circuit of youth" throughout Ireland. It was the custom of the free circuiter to "sleep one night with the wife of every king of Erin", whence it may be gathered that the "free circuit" was not an institution favourably beheld of the under-kings. Cummascach comes to the court of Leinster's king, Brandub, and, to quote from Mr. Whitley Stokes' version (Rev. Celt., xii, p. 59): "Then said the king of Erin's son, 'Where is Brandub's wife?' A message was sent by him to the queen. The queen came to converse with him, and bade welcome to the king of Erin's son.

["Then the king of Erin's son said to Brandub's wife, 'Let a boon be granted by thee to me.' 'What boon dost thou ask?' says the lady. 'Not hard to say,' quoth he. 'Thou to stay with me that I may sleep with thee.'"]

"'Grant thou a boon to me,' she saith. 'What boon doth thou ask?' says the king of Erin's son.

"'Not hard to say,' she replied. 'A respite, not to detain me until I have finished distributing food to the host, so that I may purchase my honour from them.'"

Of course the queen escapes, and Cummascach is slain by Brandub's men.

The bracketed passage in above extract is omitted by


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Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/383

 Rh the Leinster scribe, obviously owing to his having skipped the first boon through inattention in copying. As Lecan gives the full passage we have here ample proof that the 15th century MS. is not copied from the 12th century one, but goes back to the common original, a fact in itself of the utmost interest and import. Again, without the omitted phrases the whole passage loses all point and meaning. Yet Mr. O'Grady prints the Leinster text, nonsense though it be, and takes no account of the omitted passage, precious as it is to the folk-lorist and the textual critic.

These examples will suffice, I think, to justify regret that Mr. O'Grady should have given forth an incomplete and mutilated version when better ones lay ready to his hands. Unfortunately, I have to add that Mr. O'Grady does not even translate the whole of the text he prints. A single example will show this. The cause of the levying of the Boroma tribute was this: the king of Leinster's son weds one of the two daughters of the over-king of Ireland. After a while, pretending she was dead, he sought for and obtained the other in marriage. The two sisters meet, and to quote from Mr. Stokes' translation: "But when Fithir beheld Darfine she dies at once of shame. When Darfine beheld her sister's death she dies of grief [Thereafter the washing of the two maidens was performed in Ath Toncha, so that everyone said 'Rough is this washing'. Hence the neighbouring fortress 'Rough Washing' is so called.]"

Mr. O'Grady prints the Irish of the bracketed portion, but does not translate it, nor does he in any way indicate that he has omitted a very curious and important passage. In the first place we have plainly here an interpolation from the Dinnshenchas, that remarkable early mediæval list of Irish topographical legends, a portion of which recently appeared in these pages, which is thus proved to have existed before the composition of the Boroma; in the second place we have an allusion to an incident no trace of which survives otherwise in the story.

It is not necessary to multiply examples of this most


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Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/386

 378 The contents of the volume (already given in full,, ii, p. 125) are of too miscellaneous a character to allow of detailed criticism. Suffice to say that whilst the earliest stratum of Irish story-telling is practically unrepresented, the middle and later stages are fully illustrated. These stages are of especial interest to the student of oral literature still surviving among the Celtic-speaking populations of these islands. The wonderful continuity of mode of thought and expression, upon which I have so often insisted, is once more brought into relief. The Gaelic story-tellers of to-day work in a convention which has subsisted for over a thousand years.

Undoubtedly the most important text translated by Mr. O'Grady is the Agallamh na Senorach, or Colloquy with the Ancients, the chief representative of the second stage of the Ossianic romance, and one of the most characteristic specimens extant of Irish story-telling, with its fondness for annalistic and topographical minutiæ, its mingling of dreamy romance and would-be historic accuracy. Renewed acquaintance with this text has not led me to modify the opinions I expressed concerning its nature and date three years ago (MacInnes, p. 411), nor to view with added favour Prof. Zimmer's hypothesis concerning the origin of the Fenian cycle.

Mr. O'Grady has been as chary of exegetical as of critical comment, and this is greatly to be regretted. A romantic literature such as is the Irish, singularly self-contained and cast in a traditional mould equally familiar to reciter and to hearer, offers many pitfalls to the outsider. It is so easy to attach undue importance to an expression or an epithet in a particular passage before one learns that it is merely a conventional cliché. Mr. O'Grady's unrivalled knowledge of Irish romance would enable him, if he but would, to give precious assistance to the student. The few obiter dicta scattered through the volume are pregnant and illuminating. But I must confess my disbelief in the soundness of one, and as the question is of interest to the


text:
Marshall v. Baltimore and Ohio Railroad Company/Dissent Daniel

Mr. Justice DANIEL.

From the opinion just delivered I must declare my dissent. In the settlement of the discreditable controversy between the parties to this cause, I take no part. If I did, I should probably say that it is a case without merits, either in the plaintiff or in the defendants, and that in such a case they should be dismissed by courts of justice to settle their dispute by some standard which is cognate to the transaction in which they have been engaged.

My participation in this case has reference to a far different and more important ingredient involved in the opinion just announced, namely, the power of this court to adjudicate this cause consistently, with a just obedience to that authority from which, and from which alone, their being and their every power are derived.

Having in former instances, and particularly in the case of the Rundle v. Delaware and Raritan Canal Company, endeavored to expose the utter want of jurisdiction in the courts of the United States over causes in which corporations shall be parties either as plaintiffs or defendants, I hold it to be unnecessary in this place to repeat or to enlarge upon the positions maintained in the case above mentioned, as they are presented in 14 Howard, 95. Indeed, from any real necessity for enforcing the general fundamental proposition contended for by me in the case of Rundle and the Delaware and Raritan Canal Company, namely, that under the second section of the third article of the Constitution, citizens only, that is to say men, material, social, moral, sentient beings, must be parties, in order to give jurisdiction to the federal courts, I am wholly relieved by the virtual, obvious, and inevitable concessions, comprised in the attempt now essayed, to carry the provision of the Constitution beyond either its philological, technical, political, or vulgar acceptation. For in no one step in the progress of this attempt, is it denied that a corporation is not and cannot be a citizen, nor that a citizen does not mean a corporation, nor that the assertion of a power by an individual outside of the corporation, and interfering with and controlling its organization and functions, (whatever might be the degree of interest owned by that individual in the corporation,) would be incompatible with the existence of the corporate body itself. Nothing of this kind is attempted. But an effort is made to escape from the effect of these concessions, by assumptions which leave them in all their force, and show that such concessions and assumptions cannot exist in harmony with each other.

Thus it has been insisted that a corporation, created by a State, can have no being or faculties beyond the limits of that State; and if its president and officers reside within that State such a conjuncture will meet and satisfy the predicament laid down by the Constitution.

The want of integrity, in this argument, is exposed by the following questions:

1. Does the restriction of the corporate body within particular geographical limits, or the residence of its officers within those limits, render it less a corporation, or alter its nature and legal character in any degree?

2. Does the restriction of the corporate faculties within given bounds, necessarily or by any reasonable presumption, imply that the interest of its stockholders, either in its property or its acts, is confined to the same limits? If it does, then a change of residence by officers, agents, or stockholders, or a transfer of a portion of the interests of the latter, would destroy the qualification of citizenship depending upon locality. If it would not have this effect, then this anomalous citizen may possess the rights of both plaintiff and defendant, nay, by a sort of plural being or ubiquity, may be a citizen of every State in the Union, may even be a State and a citizen of the same State at the same time.

Again it has been said, that the Constitution has reference merely to the interests of those who may have access to the federal courts; and that provided those interests can be traced, or presumed to have existence in persons lesiding in different States, it cannot be required that those by whom such interests are legally held and controlled, or represented, should be alleged or proved to be citizens, or should appear in that character as parties upon the record. In reply to this proposition it may be asked, upon what principle any one can be admitted into a court of justice apart from the interest he may possess in the matter in controversy; and whether it is not that interest alone and the position he holds in relation thereto, which can give him access to any court? But, again, the language of the Constitution refers expressly and conclusively to the civil or political character of the party litigant, and constitutes that character the test of his capacity to sue or be sued in the courts of the United States.

In strict accordance with this doctrine has been the interpretation of the Constitution from the early, and what may in some sense be called the cotemporaneous interpretation of that instrument, an interpretation handed down in an unbroken series of decision, until crossed and disturbed by the anomalous ruling in the case of Letson v. The Louisville Railroad Company.

Beginning with the case of Bingham v. Cabot, in the 3d of Dallas, 382, and running through the cases of Turner v. The Bank of North America, 4 Dallas, 8; ''Turner's Admr. v. Enrille,'' Ib. 7; Mossman v. Higginson, Ib. 12; Abercrombie v. Dupuis, 1 Cranch, 343; Wood v. Wagnon, 2 Ib. 1; Capron v. Van Noorden, 2 Ib. 126; Strawbridge v. Curtis, 3 Ib. 267; The Bank of the United States v. Deveaux, 5 Ib. 61; Hodgson v. Bowerbank, 5 Ib. 303; The Corporation of New Orleans v. Winter, 1 Wheat. 91; Sullivan v. The Fulton Steamboat Company, 6 Wheat. 450-the doctrine is ruled and reiterated, that in order to maintain an action in the courts of the United States, under the clause in question, not only must the parties be citizens of different States, but that this character must be averred explicitly, and must appear upon the record, and cannot be inferred from residence or locality, however expressly stated, and that the failure to make the required averment will be fatal to the jurisdiction of a federal court, either original or appellate; and is not cured by the want of a plea or of a formal exception in any other form. But the decisions have not stopped at this point; they have ruled that to come within the meaning of the Constitution, the cause of action must have existed ab origine between citizens of different States, and that the article in question cannot be evaded by a transfer of rights which, by their primitive and intrinsic character, were not cognizable in the courts of the United States as between citizens of different States. See Turner v. The Bank of North America, already cited, and the cases of Montalet v. Murray, 4 Cranch, 46; and Gibson v. Chew, 16 Peters, 315. It is remarkable to perceive how perfectly the case of Turner v. The Bank of North America covers that how under consideration, and how strongly and emphatically it rebukes the effort to claim by indirect and violent construction, powers for the federal courts which not only have never been delegated to them, nor implied by the silence of the Constitution, but still more powers assumed in definance of its express inhibition. In the case last mentioned, the plaintiffs were well described as citizens of Pennsylvania, suing Turner and others, who were properly described as citizens of North Carolina, upon a promissory note made by the defendants, and payable to Biddle and Company, and which, by assignment, became the property of the plaintiffs. Biddle & Co. were not otherwise described than as 'using trade and partnership' at Philadelphia or North Carolina. Upon an exception upon argument, taken for the first time in this court, Ellsworth, Chief Justice, pronounced its decision in these words: 'A Circuit Court is one of limited jurisdiction, and has cognizance not of causes generally, but only of a few specially circumstanced, amounting to a small proportion of the cases which an unlimited jurisdiction would embrace. And the fair presumption is, (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears.

This renders it necessary, inasmuch as the proceedings of no court can be valid farther than its jurisdiction appears or can be presumed, to set forth upon the record of a circuit court, the facts or circumstances which give it jurisdiction, either expressly or in such manner as to render them certain by legal intendment. Amongst those circumstances it is necessary, where the defendant appears to be a citizen of one State, to show that the plaintiff is a citizen of some other State, or an alien; or if, as in the present case, the suit be upon a promissory note by an assignee, to show that the original promisee is so, for by a special provision of the statute it is his description as well as that of the assignee, which effectuates the jurisdiction; but here the description given of the promisee only is, that he used trade at Philadelphia or North Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a State other than that of North Carolina, or an alien, nor any thing which by legal intendment can amount to such an averment.' Let it be remembered, that the statute alluded to by Chief Justice Ellsworth is nothing more nor less than an assertion in terms of the second section of the third article of the Constitution; and it may then be asked, what becomes of this awkward attempt to force upon both the Constitution and statute a construction which the just meaning of both absolutely repels? Every one must be sensible that the seat of a man's business, of his daily pursuits and occupations, must probably, if not necessarily, be the place of his residence; yet here we find it expressly ruled, that such a commorancy by no just legal intendment any more than by express language, constitutes him a citizen of that community or State in which he may happen to be then residing or transacting his business; moreover, it is familiar to every lawyer or other person conversant with history, that during the periods of greatest jealousy and strictness of the English polity, aliens were permitted, for the convenience and advancement of commerce, to reside within the realm and to rent and occupy real property; but it never was pretended that such permission or residence clothed them with the character or with a single right pertaining to a British subject.

Nor has the doctrine ruled by the cases just cited been applied to proceedings at law alone, in which a peculiar strictness or an adherence to what may seem to partake of form is adhered to. The overruling authority of the Constitution has been regarded by this court as equally extending itself to equitable as to legal rights and proceedings in the courts of the United States. Thus in the case of Course v. Stead in 4 Dallas, 22. That was a suit in equity in the Circuit Court of the United States for the District of Georgia, in which it was deemed necessary to make a new party by a supplemental bill. This last bill recited the original bill, and all the orders which had been made in the cause, but omitted to allege the citizenship of the newly made defendant. In this case, when brought here by appeal from the court below, this court say, in reference to the omission to aver the citizenship of the new party, 'it is unnecessary to form or to deliver any opinion upon the merits of this cause; let the decree of the Circuit Court be reversed.' The case of Jackson v. Ashton, in 8 Peters, 148, is still more in point. This also was a suit in equity. The caption of the bill was in these words: 'Thomas Jackson and others, citizens of the State of Virginia v. The Rev. William E. Ashton, a citizen of Pennsylvania.' What said this court by its organ, Marshall, Chief Justice, upon this state of the case? 'The title or caption of the bill is no part of the bill, and does not remove the objection of the defects in the pleadings. The bill and proceedings should state the citizenship of the parties to give the court jurisdiction.' In these last decisions must be perceived the most emphatic refutation of this newly assumed version of the Constitution, which affirms that, although by the language of that instrument citizenship and neither residence nor property, but citizenship, the civil and political relation or status independently of either, is explicitly demanded, yet this requisition is fully satisfied by the presumption of a beneficiary interest in property apart either from possession or right of possession or from any legal estate or title makes the interest thus inferred equivalent with citizenship of the person to whom interest is thus strangely imputed. Perhaps the most singular circumstance attending the interpolation of this new doctrine is the effort made to sustain it upon the rule stare decisis. After the numerous and direct authorities before cited, showing the inapplicability to this case of this rule, it would have been thought a priori that the very last aid to be invoked in its support would be the maxim stare decisis. For this new class of citizen corporations, incongruous as it must appear to every legal definition or conception, is not less incongruous nor less novel to the relation claimed for it, or rather for its total want of relation to the settled adjudications of this court. It is strictly a new creation, an alien and an intruder, and is at war with almost all that has gone before it; and can trace its being no farther back than the case of Letson v. The Louisville Railroad Company.

The principle stare decisis, adopted by the courts in order to give stability to private rights, and to prevent the mischiefs incident to mutations for light and insufficient causes, is doubtless a wholesome rule of decision when derived from legitimate and competent authority, and when limited to the necessity which shall have demanded its application; but, like every other rule, must be fruitful of ill when it shall be wrested to the suppression of reason or duty, or to the arbitrary maintenance of injustice, of palpable error, or of absurdity. Such an application of this rule must be necessarily to rivet upon justice, upon social improvement and happiness, the fetters of ignorance, of wrong, and usurpation. It is a rule which, whenever applied, should be derived from a sound discretion, a discretion having its origin in the regular and legitimate powers of those who assert it. It can never be appealed to in derogation or for the destruction of the supreme authority, of that authority which created and which holds in subordination the agents whose functions it has defined, and bounded by clear and plainly-marked limits. Wherever the Constitution commands, discretion terminates. Considerations of policy or convenience, if ever appealed to, I had almost said if ever imagined in derogation of its mandate, become an offence. Beyond the Constitution or the powers it invests, every act must be a violation of duty, an usurpation.

There cannot be a more striking example than is instanced by the case before us, of the mischiefs that must follow from disregarding the language, the plain words, or what may be termed the body, the corpus, of the Constitution, to ramble in pursuit of some ignis fatuus of construction or implication, called its spirit or its intention,-a spirit not unfrequently about as veracious, and as closely connected with the Constitution, as are the spirits of the dead with the revolving tables and chairs which, by a fashionable metempsychosis of the day, they are said to animate.

The second section of the third article of the Constitution prescribes citizenship as an indispensable requisite for obtaining admission to the courts of the United States-prescribes it in language too plain for misapprehension. This court, in the case of Deveaux and the Bank of the United States, yielded obedience, professedly at any rate, to the constitutional mandate: for they asserted the indispensable requisite of citizenship; but in an unhappy attempt to reconcile that obedience with an unwarranted claim to power, they utterly demolished the legal rights, nay, the very existence of one of the parties to the controversy, thereby taking from that party all standing or capacity to appear in any court. This was ignis fatuus, No. No. 1. This was succeeded by the case of Letson v. The Cincinnati and Louisville Railroad Company, in which, by a species of judicial resurrection, this party (the corporation) was deterr e, raised up again, but was not restored to the full possession of life and vigor, or to the use of all his members and faculties, nor even allowed the privilege of his original name; but semianimate, and in virtue of some rite of judicial baptism, though 'curtailed of his natural dimensions,' he is rendered equal to a release from the thraldom of constitutional restriction, and made competent at any rate to the power of commanding the action of the federal courts. This is ignis fatuus, No. 2. Next in order is the case of Marshall v. The Baltimore and Ohio Railroad Company. This is indeed the chef d'oeuvre amongst the experiments to command the action of the spirit in defiance of the body of the Constitution.

It is compelled, from the negation of that instrument, by some necromantic influence, potent as that by which, as we read, the resisting Pythia was constrained to yield her vaticinations of an occult futurity. For in this case is manifested the most entire disregard of any and every qualification, political, civil, or local. This company is not described as a citizen or resident of any State; nor as having for its members the citizens of any State; nor as a quasi citizen; nor as having any of the rights of a citizen; nor as residing or being located in any State, or in any other place. No intimation of its 'whereabout' is alluded to. It is said to have been incorporated by the State of Maryland; but whether the State of Maryland had authority to fix its locality or ever directed that locality, and whether that be in the moon or in terra incognita, is no where disclosed. It is said that because this company was incorporated by the Legislature of Maryland, we may conjecture, and are bound to conjecture, that it is situated in Maryland, and must possess all the qualifications appertaining to a citizen of Maryland to sue or be sued in the courts of the United States; and this inference we are called upon to deduce, in opposition to the pleadings, the proofs, and the arguments, all of which demonstrate, that this corporation claims to extend its property, its powers, and operations, and of course its locality, over a portion of the State of Virginia, and that it was in reference to its rights and operations within the latter State, that the present controversy had its origin.

Thus does it appear to me that this court has been led on from dark to darker, until at present it is environed and is beaconed onward by varying and deceptive gleams, calculated to end in a deeper and more dense obscurity. In dread of the precipices to which they would conduct me, I am unwilling to trust myself to these rambling lights; and if I cannot have reflected upon my steps the bright and cheering day-spring of the Constitution, I feel bound nevertheless to remit no effort to halt in what, to my apprehension, is the path that terminates in ruin. And in considering the tendencies and the results of this progress, there is nothing which seems to me more calculated to hasten them than is the too evidently prevailing disposition to trench upon the barrier which, in the creation by the several States of the federal government, they designed to draw around and protect their sovereign authority and their social and private rights; and to regard and treat with affected derision every effort to arrest any hostile approach, either indirectly or openly, to the consecrated precincts of that barrier. It is indeed a sad symptom of the downward progress of political morals, when any appeal to the Constitution shall fail to 'give us pause,' and to suggest the necessity for solemn reflection. Still more fearful is the prevalence of the disposition, either in or out of office, to meet the honest or scrupulous devotion to its commands with a sneer, as folly unsuited to the times, and condemned by that new-born wisdom which measures the Constitution only by its own superior and infallible standard of policy and convenience. By the disciples of this new morality it seems to be thought that the mandates or axioms of the Constitution, when found obstructing the way to power, and when they cannot be overstepped by truth or logic, may be conveniently turned and shunned under the denomination of abstractions or refinements; and the loyal supporters of those mandates may be borne down under the reproach of a narrow prejudice or fanaticism incapable of perceiving through the letter, and, in contradiction of the language of the charter, its true spirit and intent; and as being wholly behind the sagacity and requirements of the age.

We cannot, however, resist the disposition to ask of those whose expanded and more pervading view can penetrate beyond the palpable form of the charter, what it is they mean to convey by the term abstraction, which is found so well adapted to their purposes? We would, with becoming modesty, inquire whether every axiom or precept, either in politics or ethics, or in any other science, is not an abstraction? Whether truth itself, whether justice or common honesty is not an abstraction? And we would farther ask those who so deal with what they call abstractions, whether they design to assail all general precepts and definitions as incapable of becoming the fixed and fundamental basis of rights or of duties. The philosophy of these expositions may easily embrace the rejection of the decalogue itself, and might be particularly effectual in reference to that injunction which forbids the coveting of all that appertains to our neighbor. The Constitution itself is nothing more than an enumeration of general abstract rules, promulged by the several States, for the guidance and control of their creature or agent, the federal government, which for their exclusive benefit they were about to call into being. Apart from these abstract rules the federal government can have no functions and no existence. All its attributes are strictly derivative, and any and every attempt to transcend the foundations (those prosclibed abstractions) on which its existence depends, is an attempt at anarchy, violence, and usurpation. Amongst the most dangerous means, perhaps, of accomplishing this usurpation, because its application is noiseless whilst it is persevering, is the habitual interference, for reasons entirely insufficient, by the federal authorities with the governments of the several States; and this too most commonly under the strange (I had almost called it the preposterous) pretext of guarding the people of the States against their own governments, constituted of, and administered by, their own fellow-citizens, bound to them by the sympathies arising from a community or identity of interests, from intimate intercourse, and selected by and responsible to themselves. Or it may be said, under the excuse of protecting the people of the States against themselves, converting the federal government in reference to the States into one grand commission, 'De lunatico inquirendo.' The effect of this practice is to reduce the people of the States and their governments under an habitual subserviency to federal power; and gives to the latter what ever has been and ever must be, the result of intervention by a foreign, a powerful, and interested mediator, the lion's share in every division. For myself I would never hunt with the lion. I would anxiously avoid his path; and as far as possible keep him from my own; always bearing in mind the pregnant reply told in the Apologue as having been made to his gracious invitation to visit him in his lair; that although in the path that conducted to its entrance, innumerable footprints were to be seen, yet in the same path there could be discerned 'Nulla vestigia retrorsum.' The vortex of federal incroachment is of a capacity ample enough for the engulfing and retention of every power; and inevitably must a catastrophe like this ensue, so long as a justification of power, however obtained, and the end of every hope of escape or redemption can, to the sickening and desponding sense, in the iron rule of stare decisis, be proclaimed. A rule which says to us, 'The abuse has been already put in practice; it has, by practice merely, become sanctified; and may therefore be repeated at pleasure.' The promulgation of a doctrine like this does indeed cut off all hope of redress, of escape, or of redemption, unless one may be looked for, however remote, in a single remedy-that sharp remedy to be applied by the true original sovereignty abiding with the States of this Union, namely, a reorganization of existing institutions, such as shall give assurance that if in their definition and announcement their rights can, by their appointed agents, be esteemed as abstractions merely, yet in the concrete, that is, in the exercise and enjoyment, these rights are real and substantive, and may neither be impaired nor denied.

My opinion is, that this cause should have been dismissed by the Circuit Court for want of jurisdiction, and should now be remanded to that court with instruction for its dismission.


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Marshall v. Baltimore and Ohio Railroad Company/Dissent Campbell

Mr. Justice CAMPBELL.

I dissent from that portion of the opinion of the court which affirms the jurisdiction of the Circuit Court in this case. The question involves a construction of a clause in the Constitution, and arises under circumstances which make it proper that I should record the reasons for the dissent.

The conditions under which corporations might be parties to suits in the courts of the United States engaged the attention of this court not long after its organization. At the session of the court, in 1809, three cases exhibited questions of jurisdiction in regard to them, under three distinct aspects. The Bank of the United States v. Deveaux, was the case of a corporation plaintiff, whose corporators were described as citizens of Pennsylvania suing a citizen of Georgia in the Federal Court of that State. The case of Wood v. Maryland Insurance Company, was that of a corporation defendant, whose corporators were properly described, sued in the State of its charter. And the case of Hope Insurance Company v. Boardman, was that of a 'legally incorporated body,' sued in the State from which it derived its charter, and was 'legally established,' but of whose corporators there was no description, 5 Cranch, 57, 61, 78.

The cases were argued together by counsel of eminent ability, with preparation and care, and were decided by the court with much deliberation and solemnity. Chief Justice Marshall declared the opinion of the court to be 'that the invisible, intangible, and artificial being, the mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States unless the rights of the members in this respect can be exercised in the corporate name.' As it appeared in the two cases first mentioned that the corporators might sue and be sued in the courts of the United States under the circumstances of the cases, the court on those cases treated them 'as a company of individuals who, in transacting their joint concerns, had used a legal name,' and for the reason 'that the right of a corporation to litigate depended upon the character (as to citizenship) of the members which compose it, and that a body corporate cannot be a citizen within the meaning of the Constitution. The judgment in the last case was reversed for want of jurisdiction.'

In Sullivan v. Fulton Steamboat Company, 6 Wheat. 450, the defendant was described as a body corporate, incorporated by the Legislature of the State of New York, for the purpose of navigating, by steamboats, the waters of East River or Long Island Sound, in that State.' This corporation was sued in New York. Upon appeal, this court determined that the Circuit Court had no jurisdiction of the defendant. In Breithaupt v. The Bank of Georgia, that corporation was sued in that State, but this court certified 'that as the bill did not aver that the corporators of the Bank of Georgia are citizens of the State of Georgia, the Circuit Court had no jurisdiction of the case.' In the Vicksburg Bank v. Slocomb, 14 Pet. 60, a corporation was sued by a citizen of a different State, in the State of its charter, but it appearing by plea, that two of its corporators were citizens of the same State as the plaintiff, this court declined jurisdiction for the federal tribunals. This was in accordance with the circuit decisions, 4 Wash. C. C. 597; 3 Summ. 472; 1 Paine; and their doctrine was repeated in Irvine v. Lowrey, 14 Pet. 293. Such was the condition of the precedents in this court when, in 1844, the case of Louisville Railroad Company v. Letson, 2 How. 497, arose. The case was one of a New York plaintiff suing a South Carolina corporation, in that State, and describing its corporators as citizens. It appeared by plea, among other things, not material to the present discussion, 'that two of the corporators were citizens of North Carolina.'

In similar pleas, before this, it had appeared that the corporators belonged to the State of the adverse party, and consequently were within the exclusion of the eleventh section of the Judiciary Act of 1789. In the present case the plaintiff was a citizen from a different State from these corporators. The court notices this fact as a peculiarity. 'The point,' they say, 'has never before been under the consideration of this court. We are not aware that it ever occurred in either of the circuits until it was made in this case. It has not then been directly ruled in any case.' The court proceeded then to decide that there was jurisdiction under the Constitution, for the parties were citizens of different States, and that the Judiciary Act did not exclude it. Thus was this point in the plea disposed of, upon grounds which unsettled none of the cases before cited. The court avows this, and says, 'that the case might be safely put upon these reasonings,' conducted 'in deference to the doctrines of former cases.' It then proceeds, 'but there is a broader ground, upon which we desire to be understood upon which we altogether rest our present judgment, although it might be maintained upon the narrower ground already suggested. It is, that a corporation created by and doing business in a particular State, is to be deemed, to all intents and purposes, as a person, although an artificial person, an inhabitant of the same State, for the purposes of its incorporation, capable of being treated as a citizen of that State, as much as a natural person.'

Since the decision of Letson's case, there have been cases of corporations, suing in the federal courts beyond the State of their location, and suing and being sued in the State of their location, in which this question might have been considered in this court. But there was no argument at the bar, and no notice of it in the opinion of the court. In one of these, one of the six judges who assisted in the decision of Letson's case expressed strongly a disapprobation of its doctrine, while another limited the conclusions of the court to the decision of the case then before it. Rundle v. Delaware Canal Company, 14 How. 80.

The case of the Indiana Railroad Company v. Michigan Railroad Company, 15 How. 233 presented the question now before us, and at that time I was favorable to its re examination; but this was expressly waived by the court, and the case decided upon another question of jurisdiction.

In the case of the Methodist Church, there was but one corporation before the court as a party. The two corporators who composed that were defendants in their corporate, as well as individual capacity. The citizenship of all the parties to the record was legally declared; and the parties to the record legally represented, all the interests of the voluntary association at issue. In reference to jurisdiction, Justice Washington says, 'the cases of a voluntary association, trustees, executors, partners, legatees, distributees, parishioners, and the like, are totally dissimilar to a corporation, and this dissimilarity arises from the peculiar character of a corporation, (4 Wash. C. C. R. 595,) and this is clear by the decisions of this court. 4 Cranch, 306; 8 Wheat. 642.

I have been thus specific in the statement of the precedents in the court, that it may appear that this dissent involves no attempt to innovate upon the doctrines of the court, but the contrary, to maintain those sustained by time and authority in all their integrity.

The declaration before us describes the defendant 'as a body corporate by act of the General Assembly of Maryland,' and corresponds therefore with the cases cited from 5 Cranch, 57; 6 Wheat. 450; 1 Pet. 238; and in those cases jurisdiction was first questioned and disclaimed in this court. These cases were not cited in Letson's case, and are decisive of this.

If we search the record for facts to sustain the jurisdiction, we can collect that the defendant has been recognized as a body corporate by the Legislature of Virginia, is commorant, and transacts business there by its authority, has for its corporators citizens and a city of that State, and that the plaintiff is also a citizen of Virginia. If these facts are considered with reference to the question of jurisdiction, all the cases decided by this court on this subject have principles which would exclude it. Even Letson's case prescribes, that the corporation should carry on its business in the State of its charter, and that case hardly contemplated an estoppel, such as is described in the opinion of the court.

I am compelled to consider this case as uncontrolled by the declaration of doctrine in Letson's case; nor do I consider the cases in which the decision of the question has been waived as obligatory. I cannot look for the conclusions of this court or any of its members, except from the public, authorized and responsible opinions delivered here in cases legitimately calling for them. For this conclusion I have the sanction of the highest authority. Chief Justice Marshall, replying to the argument that corporations under no circumstances, and by no averment, could be a party to a suit in the courts of the United States, says 'repeatedly has this court decided cases between a corpotion and an individual without feeling a doubt of its jurisdiction,' and adds, 'those decisions are not cited as authority, for they were made without a consideration of the particular point.'

The inquiry now presented is, shall I concur in a judgment which removes the ancient landmarks of the court, in reference to its jurisdiction, and which it established with care and solemnity, and maintained for so long a period with consistency and circumspection? I am compelled to reply in the negative.

A corporation is not a citizen. It may be an artificial person, a moral person, a juridical person, a legal entity, a faculty, an intangible, invisible being; but Chief Justice Marshall employed no metaphysical refinement, nor subtlety, nor sophism, but spoke the common sense, 'the universal understanding,' as he calls it, of the people, when he declared the unanimous judgment of this court, 'that it certainly is not a citizen.'

Nor were corporations within the contemplation of the framers of the Constitution when they delegated a jurisdiction over controversies between the citizens of different States. The citation by the court from the Federalist, proves this. It is said by the writers of that work, 'that it may be esteemed as the basis of union that the citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States.' And if it be a just principle that every government ought to possess the means of executing its own provisions, by its own authority, it will follow that, in order to the inviolable maintenance of that equality of immunities and privileges to which citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.' Thus to administer the rights and privileges of citizens of the different States, held under a constitutional guaranty, when brought into collision or controversy-rights and immunities derived from the constitutional compact, and forming one of its fundamental conditions, was the object of this jurisdiction. The commonplace, that it resulted as a concession to the possible fears and apprehensions of suitors, that justice might not be impartially administered in State jurisdiction, soothing as it is to the official sensibilities of the federal courts, furnishes no satisfactory explanation of it.

Hence the interpretation of that instrument which transferred to the artificial persons created by State legislation, the rights or privileges of the corporations, derived from the Constitution of the United States, as citizens of the Union, and held independently and without any relation to their rights as corporators-was, to say no more, a broad and liberal interpretation. Nor did the court in Deveaux's case affect the least self-denial or diffidence in making the bounds of its power. It declared that 'the duties of the court, to exercise a jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation,' and in this spirit rejected a jurisdiction over a case exactly like the present.

The doctrine of the court in Earle's case, 13 Peters, 519, and Runyan's case, 14 Peters, 122, to the result that corporations have no extraterritorial rights, but that the legal exercise of their faculties, extraterritorially, was the effect of a rule of comity among the States, dependent upon their policy and convenience, and revocable at their pleasure, was in harmony with these judgments of the court, and the constitutional principles I have stated. The administration of the rules of domestic policy adopted by the several States, in reference to these artificial creatures of a domestic legislation, belonged to State jurisdictions, and were ascertainable from its laws and judicial interpretations. But when, from the later case of Letson, it was supposed that these legal entities had a status which admitted them to the federal tribunals by a constitutional recognition, the inquiry at once arose, for what purpose was this privilege held? The interdependence between the sections of the Constitution which defined the privileges and immunities of citizens of the Union, and the jurisdiction of the federal courts in controversies between citizens of the States, was known and felt. It was argued that the capacity to sue was only a consequent of the right to contract, to hold property, and to perform civil acts. They commenced, therefore, an agitation of the State courts for their rights as 'citizens of the Union.' The Supreme Court of Kentucky, (12 B. Mon. 212,) repelling these pretensions and exposing their perilous character, thus refers to Letson's case, which had been relied on for their support: 'There are some expressions in that opinion which indicate that corporations may be regarded as citizens to all intents and purposes. But in saying this, the court went far beyond the question before them, and to which it may be assumed that their attention was particularly directed.' So, too, in New Jersey, 3 Zabris. 429, it was argued that the existence of the extraterritorial rights of corporations 'is not now a question of comity in the United States, but a constitutional principle incapable of being altered by State legislation.' And opinions from jurists of pre eminence in Massachusetts and New York were laid before the court to sustain the argument founded upon the relaxing doctrines of this court.

Thus the introduction of new subjects of doubt, contest, and contradiction, is the fruit of abandoning the constitutional landmarks.

Nor can we tell when the mischief will end. It may be safely assumed that no offering could be made to the wealthy, powerful, and ambitious corporations of the populous and commercial States of the Union so valuable, and none which would so serve to enlarge the influence of those States, as the adoption, to its full import, of the conclusion, 'that to all intents and purposes, for the objects of their incorporation, these artificial persons are capable of being treated as a citizen as much as a natural person.'

The Supreme Court of Kentucky says, truly, 'The apparent reciprocity of the power would prove to be a delusion. The competition for extraterritorial advantages would but aggrandize the stronger to the disparagement of the weaker States. Resistance and retaliation would lead to conflict and confusion, and the weaker States must either submit to have their policy controlled, their business monopolized, their domestic institutions reduced to insignificance, or the peace and harmony of the States broken up and destroyed.' To this consummation this judgment of the court is deemed to be a progress. The word 'citizen,' in American constitutions, state and federal, had a clear, distinct, and recognized meaning, understood by the common sense, and interpreted accordingly by this court through a series of adjudications.

The court has contradicted that interpretation, and applied to it rules of construction which will undermine every limitation in the Constitution, if universally adopted. A single instance of the kind awakens apprehension, for it is regarded as a link in a chain of repetitions.

The litigation before this court, during this term, suffices to disclose the complication, difficulty, and danger of the controversies that must arise before these anomalous institutions shall have attained their legitimate place in the body politic. Their revenues and establishments mock at the frugal and stinted conditions of State administration; their pretensions and demands are sovereign, admitting impatiently interference by State legislative authority. And from the present case we learn that disdainful of 'the careless arbiters' of State interests, they are ready 'to hover about them' in 'efficient and vigilant activity,' to make of them a prey; and, to accomplish this, to employ corrupting and polluting appliances.

I am not willing to strengthen or to enlarge the connections between the courts of the United States and these litigants. I can consent to overturn none of the precedents or principles of this court to bring them within their control or influence. I consider that the maintenance of the Constitution, unimpaired and unaltered, a greater good than could possibly be effected by the extension of the jurisdiction of this court, to embrace any class either of cases or of persons.

Mr. Justice Catron authorizes me to say that he concurs in the conclusions of this opinion.

Our opinion is, that the judgment of the Circuit Court should be affirmed for the want of jurisdiction.


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 376 regrettable practice, nor would I have mentioned this one were it not that important questions of Irish literary history are concerned. Some of Mr. O'Grady's omissions seem due to a mistaken standard of delicacy. The few naturalistic touches of the original might well have been left entire, considering the cost and bulk of Mr. O'Grady's work.

For the student not the least important section of Silva Gadelica consists of the illustrative extracts, occupying, in English, forty-eight closely printed pages. An immense amount of valuable matter is here brought together and for the first time rendered accessible to the non-Irishspeaking student. But here, even more than in the body of the work, there are grave defects of editing, the effect of which is to seriously diminish the value and utility of this section to the mass of readers. How is the non-specialist to know that MD at the end of an extract means that it is from the Martyrology of Donegal? A number of passages are quoted from the Kilbride MSS. 3 and 16, in the Advocates' Library at Edinburgh, but no information is given as to the date of these MSS.; nor, more important still, is one told from what tracts the passages are taken. Now both of these, like nearly every other early Irish MS., are libraries in themselves, made up of pieces of various date and provenance. To refer simply to the MS. is much as if an English editor should refer to ''Parl. Deb. or Stat. at Large''., without vouchsafing a hint as to the date and nature of the passages referred to. The same remark applies to the citation from the Books of Leinster, Lecan, and Ballymote; but of these MSS. facsimile editions exist, and it is possible by an expenditure of £15 and several hours' work to trace the passages quoted by Mr. O'Grady and to form some idea as to their nature and value. One class of references to the Books of Leinster and Ballymote requires special mention. Mr. O'Grady has—and one cannot be too thankful to him for it—translated a considerable portion of Dinnshenchas, but this is a fact the ordinary reader would never find out,


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 Rh as the references are simply to LL or BB, the quotations being impartially drawn sometimes from the 12th century and sometimes from the 14th century text.

In other respects the student is left in the lurch just where he requires the expert editor's guidance. Thus, p. 522, Mr. O'Grady quotes as follows respecting Ossian: "Blae Dherg from the rushing Banba, the formidable Ossian's mother. In a doe's shape she used to come and join the outlawed band; and thus it was that Ossian was begotten upon Blae Dherg disguised as a doe, LL. 164, marg. sup." It is evident that the value of this passage for the criticism of the Ossianic romance generally depends largely upon its date. The ordinary reader, knowing that LL stands for the 12th century Book of Leinster, naturally concludes that we have here a genuine 12th century testimony to the animal parentage of Ossian. It may well be so; on the other hand it may possibly not be so. For the quotation comes from a marginal note, and what one expects of the editor is that he should give us the benefit of his knowledge as to the date of this gloss. Is it in the same handwriting as the body of the MS.? does it present the same linguistic features as the text to which it is appended? These are questions Mr. O'Grady could answer but does not, and in the meantime the reference is useless, or misleading, to anyone ignorant of Irish palaeography and linguistics.

The criticisms I have felt bound to make could, it will be seen, have been obviated by more definite ideas of the editorial function, and by a very slight extra expenditure of time, work, and space. It is earnestly to be hoped that Mr. O'Grady and his publishers will receive sufficient encouragement to continue the issue of Silva Gadelica, and that the editor will, in future, bear the requirements of the ordinary student more fully in mind than he has done in the present volume.