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 tells his story

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

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 Summer

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text: Constitution of the Republic of South Africa, 1993/Chapter 1


text: Constitution of the Republic of South Africa, 1993/Chapter 2


text: Constitution of the Republic of South Africa, 1993/Chapter 3


text: Constitution of the Republic of South Africa, 1993/Chapter 4


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 Summer days

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text: Constitution of the Republic of South Africa, 1993/Chapter 5


text: English Folk-Carols/The Little Room

title: English Folk-Carols/The Little Room


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 Boy threw him, but of course he didn't want to say so.

"Can you hop on your hind legs?" asked the furry rabbit.

That was a dreadful question, for the Velveteen Rabbit had no hind legs at all! The back of him was made all in one piece, like a pincushion. He sat still in the bracken, and hoped that the other rabbits wouldn't notice.

"I don't want to!" he said again.

But the wild rabbits have very sharp eyes. And this one stretched out his neck and looked.

"He hasn't got any hind legs!" he called out. "Fancy a rabbit without any hind legs!" And he began to laugh.

"I have!" cried the little Rabbit. "I have got hind legs! I am sitting on them!"

"Then stretch them out and show me, like this!" said the wild rabbit. And he began to whirl round and dance, till the little Rabbit got quite dizzy.

"I don't like dancing," he said. "I'd rather sit still!" But all the while he was longing to dance, for a funny new tickly feeling ran through him, and he felt he would give anything in the world Rh

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text: Constitution of the Republic of South Africa, 1993/Chapter 6


text: Constitution of the Republic of South Africa, 1993/Chapter 7


text: Constitution of the Republic of South Africa, 1993/Chapter 8


text: Constitution of the Republic of South Africa, 1993/Chapter 9


text: Constitution of the Republic of South Africa, 1993/Chapter 10


text: Constitution of the Republic of South Africa, 1993/Chapter 11


text: English Folk-Carols/Sons of Levi

title: English Folk-Carols/Sons of Levi


text: Constitution of the Republic of South Africa, 1993/Chapter 11A


text: Constitution of the Republic of South Africa, 1993/Chapter 12


text: Constitution of the Republic of South Africa, 1993/Chapter 13


text: Constitution of the Republic of South Africa, 1993/Chapter 14


text: Constitution of the Republic of South Africa, 1993/Chapter 15


text: Constitution of the Republic of South Africa, 1993/Schedule 1


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 to be able to jump about like these rabbits did.

The strange rabbit stopped dancing, and came quite close. He came so close this time that his long whiskers brushed the Velveteen Rabbit's ear, and then he wrinkled his nose suddenly and flattened his ears and jumped backwards.

"He doesn’t smell right!" he exclaimed. "He isn’t a rabbit at all! He isn’t real!"

"I am Real!" said the little Rabbit, "I am Real! The Boy said so!" And he nearly began to cry.

Just then there was a sound of footsteps, and the Boy ran past near them, and with a stamp of feet and a flash of white tails the two strange rabbits disappeared.

"Come back and play with me!" called the little Rabbit. "Oh, do came back! I know I am Real!"

But there was no answer, only the little ants ran to and fro, and the bracken swayed gently where the two strangers had passed. The Velveteen Rabbit was all alone.

"Oh, dear!" he thought. "Why did they run away like that? Why couldn't they stop and talk to me?" Rh

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text: Constitution of the Republic of South Africa, 1993/Schedule 2


text: Constitution of the Republic of South Africa, 1993/Schedule 3


text: Constitution of the Republic of South Africa, 1993/Schedule 4


text: Constitution of the Republic of South Africa, 1993/Schedule 5


text: Constitution of the Republic of South Africa, 1993/Schedule 6


text: Constitution of the Republic of South Africa, 1993/Schedule 7


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Page:Dictionary of National Biography volume 06.djvu/308

 Brewer mosses, thus clearing up many doubtful points. In the autumn of 1727 he went into Yorkshire, living at Bingley, and afterwards at Bierley, near Dr. Richardson, who befriended him. The loss of 20,000l. of his own earnings, and of a large estate left to him by his father, which was taken by his elder brother, gave a morbid tone to his letters. His son was sent to India through the influence of Dr. James Sherard of Eltham, but the father quarrelled with the doctor in 1731 about some plants. His daughter also seems to have acted 'undutifully' towards him. He had a small house and garden at Bierley, and devoted himself to the culture of plants ; afterwards he became head-gardener to the Duke of Beaufort at Badminton, and died at Bierley, at Mr. John Pollard's house ; he was buried close to the east wall of Cleckheaton chapel. Although unfortunate in business, he was a good collector of plants, insects, and birds ; the botanical genus Breweria was founded by Robert Brown in his honour, and a species of rock-rose, a native of North Wales, discovered by him, bears the name of 'Helianthemum Breweri.' He is mentioned in the Richardson correspondence in 1742, but the dates of his birth and death are uncertain.

[Pulteney's Biog. Sketches of Botany (1790), ii. 188-90; Richardson Correspondence, 252, 270, 273, 276-88, 298, 313, &c. ; Dillenius's Hist. Musc. viii. ; Nichols's Illustr. of Lit. i. 288, &c. ; Sloane MS. 4039.]

BREWER, THOMAS (fl. 1624), miscellaneous writer, of whose life no particulars are known, was the author of some tracts in prose and verse. The first is a prose tract entitled 'The Life and Death of the Merry Deuill of Edmonton. With the Pleasant Pranks of Smug the Smith, Sir John and mine Host of the George about the Stealing of Venison. By T. B.,' London, 1631, 4to, black letter ; reprinted in 1819. The author's name, 'Tho. Brewer,' is inscribed on the last leaf. This piece was written and probably printed at a much earlier date, for on 5 April 1608 'a booke called the lyfe and deathe of the Merry Devill of Edmonton, &c., by T. B., was entered in the Stationers' Registers ('s Transcripts, iii. 374). Mr. A. H. Huth possesses a unique exemplar, printed in 1657, with the name 'T. Brewer, Gent.,' on the title-page. The popularity of the comedy of the 'Merry Devil of Edmonton' doubtless suggested the title of this droll tract, which tells us little about Peter Fabell, and deals mainly with the adventures of Smug. In 1624 Brewer published a small collection of satirical verses, under the title of

 * A Knot of Fooles. But
 * Fooles or Knaves or both I care not,
 * Here they are ; come laugh and spare not,

4to, 14 leaves, 2nd ed. 1658. The stanzas to the reader are signed 'Tho. Brewer ;' they are followed by a dialogue between fools of various sorts. The body of the work consists of satirical couplets, under separate titles, on the vices of the day. 'Pride teaching Humility,' the concluding piece, is in seven-line stanzas. Brewer's next production was a series of poems descriptive of the plague, entitled 'The Weeping Lady, or London like Ninivie in sack-cloth. Describing the Mappe of her owne Miserie in this time of Her heavy Visitation. . . Written by T. B.,' 1625, 4to, 14 leaves. The dedication to Walter Leigh, esq., and the Epistle to the Reader are signed 'Tho. Brewer.' On the title-page is a wood-cut (repeated on the verso of A 3) representing a preacher addressing a crowd from St. Paul's Cross ; a scroll issuing from his mouth bears the inscription, 'Lorde, haue mercy on vs. Weepe, fast, and pray.' Each page, both at top and bottom, has a mourning-border of deep black. The most striking part of the tract is a description of the flight of citizens from the metropolis, and of the sufferings which they underwent in their attempts to reach a place of safety. Two other tracts by Brewer relating to the plague were published by H. Gosson in 1636 : (1) 'Lord have Mercy upon us. The World, a Sea, a Pest House,' 4to, 12 leaves ; (2) 'A Dialogue betwixt a Cittizen and a poore Countrey-man and his Wife. London Trumpet sounding into the country. When death drives the grave thrives. ' A copy of the last-named tract (or tracts?) was in Heber's library (Bibl. Heber. pt. viii. No. 234). In 1637 Brewer contributed to a collection of verse, entitled 'The Phoenix of these late times, or the Life of Mr. Henry Welby, Esq.,' 4to. Lemon ascribes to Brewer a broadside by T. B. (preserved in the library of the Society of Antiquaries), entitled 'Mistress Turner's Repentance, who, about the poysoning of the Ho. Knight Sir Thomas Overbury, was executed the fourteenth day of November last,' 1615. 'London's Triumph,' 1656, by T. B., a descriptive pamphlet of the lord mayor's show for that year, is probably by Brewer. Brewer has commendatory verses in Taylor's 'Works' (1630), and in Heywood's 'Exemplary Lives. . . of Nine the most worthy Women of the World' (1640).

[Corser's Collectanea ; Collier's Bibliographical Catalogue ; Hazlitt's Handbook ; Arber's Transcripts, iii. 165 ; Bibliotheca Heberiana, pt. viii. No. 234 ; Catalogue of Huth Library ; Fairholt's Lord Mayors' Pageants, ii. 282.]


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 For a long time he lay very still, watching the bracken, and hoping that they would come back. But they never returned, and presently the sun sank lower and the little white moths fluttered out, and the Boy came and carried him home.

Weeks passed, and the little Rabbit grew very old and shabby, but the Boy loved him just as much. He loved him so hard that he loved all his whiskers off, and the pink lining to his ears turned grey, and his brown spots faded. He even began to lose his shape, and he scarcely looked like a rabbit any more, except to the Boy. To him he was always beautiful, and that was all that the little Rabbit cared about. He didn’t mind how he looked to other people, because the nursery magic had made him Real, and when you are Real shabbiness doesn't matter.

And then, one day, the Boy was ill.

His face grew very flushed, and he talked in his sleep, and his little body was so hot that it burned the Rabbit when he held him close. Strange people came and went in the nursery, and a light burned all night, and through it all the little Velveteen Rabbit lay there, hidden from sight under the bedclothes, and he never stirred, for he Rh

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 Anxious times

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text: English Folk-Carols/The Twelve Apostles

title: English Folk-Carols/The Twelve Apostles


text: Seoul, the capital of Korea

title: Seoul, the capital of Korea


text: English Folk-Carols/New Year's Carol

title: English Folk-Carols/New Year's Carol


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 was afraid that if they found him some one might take him away, and he knew that the Boy needed him.

It was a long weary time, for the Boy was too ill to play, and the little Rabbit found it rather dull with nothing to do all day long. But he snuggled down patiently, and looked forward to the time when the Boy should be well again, and they would go out in the garden amongst the flowers and the butterflies and play splendid games in the raspberry thicket like they used to. All sorts of delightful things he planned, and while the Boy lay half asleep he crept up close to the pillow and whispered them in his ear. And presently the fever turned, and the Boy got better. He was able to sit up in bed and look at picture books, while the little Rabbit cuddled close at his side. And one day, they let him get up and dress.

It was a bright, sunny morning, and the windows stood wide open. They had carried the Boy out on to the balcony, wrapped in a shawl, and the little Rabbit lay tangled up among the bedclothes, thinking.

The Boy was going to the seaside to-morrow. Everything was arranged, and now it only Rh

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 remained to carry out the doctor's orders. They talked about it all, while the little Rabbit lay under the bedclothes, with just his head peeping out, and listened. The room was to be disinfected, and all the books and toys that the Boy had played with in bed must be burnt.

"Hurrah!" thought the little Rabbit. "To-morrow we shall go to the seaside!" For the Boy had often talked of the seaside, and he wanted very much to see the big waves coming in, and the tiny crabs, and the sand castles.

Just then Nana caught sight of him.

"How about his old Bunny?" she asked.

"That?" said the doctor. "Why, it’s a mass of scarlet fever germs!—Burn it at once. What? Nonsense! Get him a new one. He mustn’t have that any more!"

And so the little Rabbit was put into a sack with the old picture-books and a lot of rubbish, and carried out to the end of the garden behind the fowl-house. That was a fine place to make a bonfire, only the gardener was too busy just then to attend to it. He had the potatoes to dig and the green peas to gather, but next morning he promised to come quite early and burn the whole lot. Rh

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 King. Will nothing fatisfie but all? Arm. Without all, nothing. The Kingdome and not under suites our blood, Flyes are are not Eagles preyes nor thankes our food: And for Cilicia our other spheare, Our sonne Zenarchus let thy beames move there. Zen. Rather, my Lord, let me mave pitty here, Vnto that reverend fate-afflicted King; For whom, with disconsolate sonne (my friend And plighted Brother) I here kneele as Sutor. Oh my most Noble Father, still retaine The seale of honour and religion, A Kingdome rightly possessed by course, Containes more joy than is usurpt by force. Arm. The Boy hath almost chang'd us. Maz. He cooles - my Lord, remember you are possess'd.     Arm. What, with the Devill? Max. The Devill I the Dukedome, the Kingdome, Lydia. All pant under your Scepter; the sway's yours, Be not bought out with words, a Kingdome's deare, Kisse fortune, keepe your minde, and keepe your state, Y'are laught at if you prove compassionate. Arm. Thankes to Mazeres, he hath refresht our spirits, Zenarchus, 'tis thy death if thou proceede, Thy words we threate, rife silent or else bleed. King. who can expect but blood where Tyrants governe? Arm. We are not yet so cruell to thy fortune As was Lapyrus, thy owne Nephew, trecherous; That stole upon thy life, beseig'd thee basely, And had betra, 'd thee to thine enemies anger Had we not beate his strength to his owne throate; And made him shrinke before us, all can tell In him twas monstrous, tis in us but well; A tricke of warre, advantage, policy, nay rather recompence; There's more deceite in peace, tis common there T' unfold young heires, the old may well stand bare. You have your life, be thankefull, and tis more Than your perfidious Nephew would confent to,

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114 waver in its reverence for Zeus. Speak alone. I won't answer any more."

"Be not wrathful, Elpidias! I don't wish to inflict any evil upon you. But if you are tired of following my arguments to their logical conclusions, permit me to relate to you an allegory of a Milesian youth. Allegories rest the mind, and the relaxation is not unprofitable."

"Speak, if your story is not too long and its purpose is good."

"Its purpose is truth, friend Elpidias, and I will be brief. Once, you know, in ancient times, Miletus was exposed to the attacks of the barbarians. Among the youth who were seized was a son of the wisest and best of all the citizens in the land. His precious child was overtaken by a severe illness and became unconscious. He was abandoned and allowed to lie like worthless booty. In the dead of night he came to his senses. High above him glimmered the stars. Round about stretched the desert; and in the distance he heard the howl of beasts of prey. He was alone.

"He was entirely alone, and, besides that, the gods had taken from him the recollection of his former life. In vain he racked his brain—it was as dark and empty as the inhospitable desert in which he found himself. But somewhere, far away, behind the misty and obscure figures conjured up by his reason, loomed the thought of his lost home, and a vague realisation of the figure of the best of all men; and in his heart resounded the word 'father.' Doesn't it seem to you that the fate of this youth resembles the fate of all humanity?"

"How so?"

"Do we not all awake to life on earth with a hazy recollection of another home? And does not the figure of the great unknown hover before our souls?"

"Continue, Socrates, I am listening."

"The youth revived, arose, and walked cautiously, seeking to avoid all dangers. When after long wanderings his strength was nearly gone, he discerned a fire in the misty distance which illumined the darkness and banished the cold. A faint hope crept into his weary soul, and the recollections of his father's house again awoke within him. The


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 That night the Boy slept in a different bedroom, and he had a new bunny to sleep with him. It was a splendid bunny, all white plush with real glass eyes, but the Boy was too excited to care very much about it. For to-morrow he was going to the seaside, and that in itself was such a wonderful thing that he could think of nothing else.

And while the Boy was asleep, dreaming of the seaside, the little Rabbit lay among the old picture-books in the corner behind the fowlhouse, and he felt very lonely. The sack had been left untied, and so by wriggling a bit he was able to get his head through the opening and look out. He was shivering a little, for he had always been used to sleeping in a proper bed, and by this time his coat had worn so thin and threadbare from hugging that it was no longer any protection to him. Near by he could see the thicket of raspberry canes, growing tall and close like a tropical jungle, in whose shadow he had played with the Boy on bygone mornings. He thought of those long sunlit hours in the garden—how happy they were—and a great sadness came over him. He seemed to see them all pass before him, each more beautiful than the other, the fairy huts Rh

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 in the flower-bed, the quiet evenings in the wood when he lay in the bracken and the little ants ran over his paws; the wonderful day when he first knew that he was Real. He thought of the Skin Horse, so wise and gentle, and all that he had told him. Of what use was it to be loved and lose one’s beauty and become Real if it all ended like this? And a tear, a real tear, trickled down his little shabby velvet nose and fell to the ground.

And then a strange thing happened. For where the tear had fallen a flower grew out of the ground, a mysterious flower, not at all like any that grew in the garden. It had slender green leaves the colour of emeralds, and in the centre of the leaves a blossom like a golden cup. It was so beautiful that the little Rabbit forgot to cry, and just lay there watching it. And presently the blossom opened, and out of it there stepped a fairy.

She was quite the loveliest fairy in the whole world. Her dress was of pearl and dewdrops, and there were flowers round her neck and in her hair, and her face was like the most perfect flower of all. And she came close to the little Rabbit and gathered him up in her arms and kissed him Rh

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 The Fairy flower

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 on his velveteen nose that was all damp from crying.

"Little Rabbit," she said, "don't you know who I am?"

The Rabbit looked up at her, and it seemed to him that he had seen her face before, but he couldn't think where.

"I am the nursery magic Fairy," she said. "I take care of all the playthings that the children have loved. When they are old and worn out and the children don't need them any more, then I come and take them away with me and turn them into Real."

"Wasn't I Real before?" asked the little Rabbit.

"You were Real to the Boy," the Fairy said, "because he loved you. Now you shall be real to every one."

And she held the little Rabbit close in her arms and flew with him into the wood.

It was light now, for the moon had risen. All the forest was beautiful, and the fronds of the bracken shone like frosted silver. In the open glade between the tree-trunks the wild rabbits danced with their shadows on the velvet grass, but when they saw the Fairy they all stopped Rh

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 dancing and stood round in a ring to stare at her.

"I’ve brought you a new playfellow," the Fairy said. "You must be very kind to him and teach him all he needs to know in Rabbitland, for he is going to live with you for ever and ever!"

And she kissed the little Rabbit again and put him down on the grass.

"Run and play, little Rabbit!" she said.

But the little Rabbit sat quite still for a moment and never moved. For when he saw all the wild rabbits dancing around him he suddenly remembered about his hind legs, and he didn’t want them to see that he was made all in one piece. He did not know that when the Fairy kissed him that last time she had changed him altogether. And he might have sat there a long time, too shy to move, if just then something hadn't tickled his nose, and before he thought what he was doing he lifted his hind toe to scratch it.

And he found that he actually had hind legs! Instead of dingy velveteen he had brown fur, soft and shiny, his ears twitched by themselves, and his whiskers were so long that they brushed the grass. He gave one leap and the joy of using Rh

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 those hind legs was so great that he went springing about the turf on them, jumping sideways and whirling round as the others did, and he grew so excited that when at last he did stop to look for the Fairy she had gone.

He was a Real Rabbit at last, at home with the other rabbits.

Autumn passed and Winter, and in the Spring, when the days grew warm and sunny, the Boy went out to play in the wood behind the house. And while he was playing, two rabbits crept out from the bracken and peeped at him. One of them was brown all over, but the other had strange markings under his fur, as though long ago he had been spotted, and the spots still showed through. And about his little soft nose and his round black eyes there was something familiar, so that the Boy thought to himself:

"Why, he looks just like my old Bunny that was lost when I had scarlet fever!"

But he never knew that it really was his own Bunny, come back to look at the child who had first helped him to be Real. Rh

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 With Illustrations by

HEINEMANN London1922

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To Francesco Bianco

from

The Velveteen Rabbit

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 Had he surpriz'd you first, your fate is cast, The sooner you be gone 'twill prove the safer. Kin. On thee Lapyrus, and thy treacheries, fall The heavie burthen of an old mans curse. Fid. Your Queene with her two Infants fled the Citty Affrighted at this treason and new warres. Kin. Newes of more sadnesses than the Kingdomes losse, She fled upon her houre, for had she stayd Sh' had either dyed, beene banish'd, or betrayd. I have some servants here? Arma. All these my Lord. Kin. All these? not all, you did forget, I am not worth the flattering, I am done, Old and at set, honour the rising Sunne. If any for love serve me, which is he? Now let him shame the world and follow me. Fid. That's I my Lord. Amor. And I.     Kin. What two of you? Two follow a King when he is poore and old. ''Exit. cum suis.'' Sex. Farewell King. Ile play the Flounder, keepe me to my tyde. Lod. And so will I, this is the flowing side. Maz. Those men are yours, my Lord. Arm. We'le grace them chiefely, Waite for imployment, place and eminence, The like to each that to our bounty flies, For he that falls to us shall surely rife. His sonne Tymethes little frights our thoughts, He's young,and given to pleasure, not to plots. Maz. Your grace defines him right, he may remaine, The Prince your sonne, bindes him in a love-chaine; There's little feare of him. Arm. Their loves are deare, Base Boy, he leaves his father to live here. Maz. His presence sets glosse on your attempts, They have their luster from him. Arm. He's their Countenance, Twas well observ'd and follow'd, he shall stay,

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text:
Lessee of Brown v. Clements/Dissent Catron

Mr. Justice CATRON.

I feel myself bound to dissent, from the foregoing opinion for the following reasons:

1. By the act of 29th May, 1830, a pre-emption right settler then in possession was entitled to enter with the register of the Land-office in the district where the land lay, by legal subdivisions, not more than one hundred and sixty acres.

The controversy before us turns, partly, on what was the true 'legal subdivision' of fractional section 22, containing two hundred and three acres: This must be ascertained from the laws on the subject existing in 1830. The lines of public surveys actually run and marked in the field, are township extensions, and section boundaries; the lines dividing sections into quarters, half-quarters, (and quarter-quarters since 1832,) being only indicated, or depicted upon the township plats returned and recorded in the office of the register.

The act of 26th March, 1804, provides for the first time for the sale of the public lands in quarter-sections; and also directs (sect. 9) that fractional sections shall be sold entire; or by uniting two or more together. The act of February 11th, 1805, directs with absolute precision, leaving no discretion on the subject, the manner in which full sections shall be divided into quarters: but makes no provision for the subdivision of fractional sections. It was not until the passing of the act of April 24, 1820, that these were authorized to be subdivided; and then only when they contained more than one hundred and sixty acres. The act of 1820, in directing the manner in which full sections shall be subdivided into half-quarters, or eighty acre lots, is as absolutely precise in its provisions as that of 1805; and, as in the former case, gives no discretionary power so far as these subdivisions are concerned-but in authorizing the subdivision of fractional sections containing one hundred and sixty acres and upwards, it directs that they shall in like manner, 'as nearly as practicable,' be subdivided into half-quarter sections, or eighty acre lots-'under such rules and regulations, as may be prescribed by the Secretary of the Treasury.' Under the discretionary power here given, rules and regulations were prescribed by Secretary Crawford, on the 10th of June, 1820, (2 Land Laws and Opinions, p. 820, No. 796.) A circular was addressed to the surveyors-general of that date, for their government in this respect, by the commissioner of the General Land-office: It orders that fractional sections, containing more than one hundred and sixty acres, shall be divided into half-quarter sections, by north and south, or east and west lines, so as to preserve the most compact and convenient forms. 'You will, therefore,' says the commissioner, 'be pleased to divide the fractional sections in your district, (which remain unsold,) in the manner above directed, and report to this office, and to the registers of the land-district in which those fractions respectively are situate, the subdivisions, together with the quantity in each. It is not intended to run the subdivisional lines, and mark them, but merely to make them upon your surveys, and calculate the quantity of land in each subdivision.'

In January, 1826, (2 Land Laws, p. 583, No. 841,) further instructions were given on this subject, to the surveyor-general at Washington, Mississippi. The commissioner says, among other things-'A fractional section is a tract of land not bounded by sectional lines on all sides, in consequence of the intervention of rivers, &c., and containing a less quantity than six hundred and forty acres.'

Speaking of the regulations, and the circular letter founded on them, the commissioner continues: 'The substance of the rule is, that fractional sections of one hundred and sixty acres and upwards are to be subdivided by east and west, or north and south lines, at the discretion of the surveyor, so as to preserve the most compact and convenient forms. Each lot to be, as nearly as practicable, a half-quarter-section, containing a quantity of eighty acres; sometimes rather more, sometimes less, as the locality demands.'

According to these instructions, fraction No. 22 was divided: two precise eighty-acre tracts could not be made out of it; half-quarters, or eighty acres, was the least quantity that could be sold by the act of 1820, if in regular form and part of a full section; but if in irregular form, and the fraction of a section, containing upwards of one hundred and sixty acres, then it was left to the Secretary to cause it to be subdivided according to his own regulations, into two or more tracts, approaching, 'as nearly as practicable,' to eighty acres each. He directed the subdivisions to be made in all cases so as to preserve the most compact and saleable forms, accommodating the tracts to the sides of rivers, or other legal intervening boundaries to subserve the best interests of the government. This practice has prevailed as the governing rule for nearly a quarter of a century, and is now in full operation-large quantities of land have been sold thus subdivided; and great quantities yet remain to be sold. I speak on information derived from the commissioner of the General Land-office. The idea of taking out of a fraction a quarter-section of one hundred and sixty acres, if found there, as if the section was entire, and leaving surrounding strips of a few acres each, unsaleable and of little or no value, as will be the case here, never has been entertained at that office, as the true construction of the act of 1820, from the date of Mr. Crawford's instructions, (June 10th, 1820,) up to this time. On mature consideration, I think the instructions given legitimately within the authority conferred on the Secretary. In this view of the law, as applicable to the present case, I am supported by the opinion of the attorney-general, given on Etheridge's claim in 1837, (2 Land Laws and Opinions, p. 136, No. 85.)

2. Suppose, however, it was doubtful whether they were or not authorized, is it admissible for the courts of justice, after such a lapse of time, to call in question the construction given to the act; to disturb so many titles taken under it-and to break up existing subdivisions? The sole authority to which the act referred for its exposition, and the prescribing of rules and regulations to carry it into execution, was the Secretary of the Treasury. His jurisdiction was subject to no supervision; he was constituted the only judge, from whose decision there was no appeal on part of purchasers; they were compelled to buy in the form, and quantity, the lands were offered for sale, or not be permitted to purchase at all. The Secretary having adjudged and settled the construction of the act according to his views of its true meaning, and this coeval with its passage-a strong circumstance: the government in its executive and political departments, and the community at large concerned in purchasing from the government, having acquiesced without complaint, recognizing the construction as the true one, through so great a lapse of years, it is now supposed by me, the duty of this court, on the question being presented here, and that for the first time, to acquiesce also. That these subdivisions are for the best interests of the United States is manifest; all others have abided by them, and so should the plaintiff.

If one of our own judgments made in 1820, coeval with the statute, had produced similar consequences; if many thousands, of titles rested on it, (as there surely do on Mr. Crawford's instructions,) I should feel myself wholly unauthorized, at this day, to overthrow the decision, however doubtful I might think it to be. The conservative rule of communis error facit jus, is universal in courts of justice, in regard to their own judgments, under such circumstances; and undoubted judicial propriety requires its adoption, as it seems to me, when dealing with the decision of the Secretary in the present instance. This course is peculiarly due to the repose of titles, and the stable maintenance of an established system in a great department; a system that cannot be changed in this respect without much expense, confusion, and delay, in the administration of that department.

3. But suppose the Secretary was mistaken, and the subdivision of fractional section 22 is illegal; what then is the plaintiff's case? His title is a patent; on his legal title he must recover, therefore he cannot be heard to say his patent is void because founded on an illegal subdivision: the question then is reduced to this; what does the patent cover? Etheridge had no peculiar rights by the act of 1830, save that he had a preference of entry; like others purchasing of the United States he was compelled to buy in legal subdivisions; before 1820 not less than an entire fractional section could be sold; nor after the act of that year, could one be sold in subdivisions until divided, under regulations by the Secretary of the Treasury. Further than this, the act of 1805 remained unchanged, as to fractions. Etheridge could not be permitted to treat a quarter-section in a fraction, although found there, as if it was found in an entire section. He did attempt it, in proving up his preference right, but when he applied to enter at the Land-office the register rejected his claim, and compelled him to take the land on which he resided in the form and quantity it had been laid off according to the instructions; and this he did take. The government is bound by its patent; is estopped to disavow the subdivision granted; and as estoppels are mutual, Etheridge is equally bound, by the grant. It recites the patent certificate; this says it is for ninety-two acres and sixty-seven hundredths, bounded 'according to the official plat of the survey of the said lands, returned to the General Land-office by the surveyor-general-which said tract, described in the plat returned, has been purchased by the said James Etheridge.' The plat is part of the patent certificate; is referred to in the patent, and is part of that also, just as much as if it was attached to the same paper. By the plats of public surveys, lands must be identified, and the boundaries ascertained, in all cases of the kind. The parties agree of record that exhibit No. 2 is the official map described in the patent of Etheridge; according to this, he purchased lot A for ninety-two acres and sixty-seven hundredths; his eastern boundary being the red line made by the surveyor-general, pursuant to the instructions. This was undoubtedly the land the government intended to sell, and, as I think, as certainly the same Etheridge intended to buy, and did buy; of course he can recover no land east of that line, and therefore the judgment ought to be affirmed, even if the instructions were illegal and void.

4. The case does not stop here: Stone's patent is elder than Etheridge's; the same plat is referred to in each; Stone's is for the one hundred and ten acres and fifty hundredths east of the red line. This is not disputed. To overcome it, Etheridge's patent must be supported by a legal entry for the same land, elder than Stone's patent. As already stated, until Etheridge paid his money, he could have no legal entry from which to date his title. There being no such subdivision existing in law as the south-west quarter of fractional section 22, when Etheridge presented his occupant claim, he could not be permitted to enter in that form, or for that quantity. Such was the express instruction of May 31, 1831, (2 Land Laws and Instructions, No. 497, and again in No. 521.) The first subdivision was created afterwards by the act of the surveyor-general, and is indicated by the red line. That it is denominated the south-west quarter in the patent, amounts, in my judgment, to very little; thus the department saw proper to call such subdivisions; the denomination was arbitrary and not precise, but we cannot discard the substance for the sake of correcting terms of description open to verbal criticism. The land contained in plat referred to in Etheridge's patent, is a technical quarter-section in the language of the General Land-office; and such subdivisions are known by no other name there, as will be seen by No. 483 and No. 486 in the volume of Instructions above referred to. Thus in No. 483, dated July 28th, 1830, the commissioner instructs the register at Mount Salus, that the pre-emption law of that year restricted the quantity to be located to one hundred and sixty acres, or a quarter-section; but that it did not intend that an excess over one hundred and sixty acres, 'in a tract of land technically known as a quarter-section,' should be cut off so as to restrict the quantity literally to one hundred and sixty acres. 'The law, (says he,) having taken it for granted that every quarter-section contains one hundred and sixty acres, which not being the fact, we must be guided by what we know to be the spirit and intention of the law.' He then instructs the register, in cases of fractional sections, to conform to the subdivisions as made by the surveyor-general, and to give the quantity as near as practicable.

No. 486 is a general circular, dated September 14, 1830, on the same subject in part. Instruction 8 directs: 'Although a quarter-section may be found to contain rather more than the ordinary quantity of one hundred and sixty acres, the right of pre-emption is extended to the full quantity of such quarter-section.' In the language, therefore, of the General land-office, the south-west quarter of fractional section 22, called for in Etheridge's patent, is as well known by its designation, as if the section was entire. This the Instruction No. 497 above, explains, where the subdivided quantity is less, to be a 'technical' quarter also, as well as if the quantity had been more. But if there be uncertainty, here, as in former cases, we must refer to the plat and quantity to explain the uncertainty. This course was pursued in the case of McIver v. Walker, 9 Cranch, 173, and again in 4 Wheat., 444. There the plat was held to control the face of the patent, and fixed a different locality, because Crow Creek was laid down on the plat, nearly through its centre; the location certificate copied in the patent, as in this case, called for a beginning, and for courses from that point, running off from the creek, which was not named as being crossed by the lines; yet this court diregarded the calls, and held the land lay on both sides of the creek, as indicated in the naked plat. It was a much weaker case than the present. In patents of the United States, from their earliest date down to this day, nothing is referred to but numbers on the public surveys. To hold that the surveys did not explain and control the patent as to identity, and side lines, would be an abandonment of both; as nothing else can establish either.

Much stress is laid on the fact that the half-mile post is found on the south boundary of section 22. The same line-marks are uniformly made on all sectional lines, regardless of fractions: so it would have been done had the fraction 22 been for less than one hundred and sixty acres, and not subjected to subdivision. The section south may have been entire, and the corner post necessary for the purposes of that section.

Another difficulty stands in the way of the plaintiff's recovery. Stone's patent is the elder; it is admitted it covers the land in dispute-the patent passed the perfect and consummate title; in an action of ejectment the patent is conclusive, as was held by this court in Wilcox v. Jackson, and Bagnell v. Broderick, 13 Pet., 516, 450. You can only go behind it, and give it earlier date, from a precise legal entry for the same land made by the grantee, to overreach an elder patent; as this court held in Ross v. Barland, 1 Pet., 655. We have seen Etheridge did not enter the land in dispute when he paid his money, and took his patent certificate. To overthrow Stone's patent, we must rely on the preference right to enter. At best, it is a remote and doubtful equity; Stone paid for the land, (and if the assumption be true,) has an equity attached to it for his purchase money; presenting a case of conflicting equities, with which a court of law cannot deal. In the language of this court in Bagnell v. Broderick, 'we are bound to presume for the purposes of this action, that all previous legal steps had been taken by Stone to entitle himself to the patent, and that he had the superior right to obtain it, notwithstanding the claim set up by Etheridge; and having obtained the patent, Stone had the best title known to a court of law, to wit, the fee.' There a much more imposing equity than Etheridge can pretend to, was set up. In no respect, therefore, is there any ground for reversing the decision of the Supreme Court of Alabama, as is supposed by me.

In the case of Brown et ux. v. Hunt, Mr. Justice DANIEL dissents from the opinion of the court, and concurs in opinion with Mr. Chief Justice and Mr. Justice CATRON.


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Neil v. Ohio/Dissent Daniel

Mr. Justice DANIEL.

From the decision just pronounced on behalf of the majority of the court, I am constrained to dissent. Upon the principles involved in the decision, so far as they have been assumed as the foundation of rights in the federal government, or in the postmaster-general as its agent or representative, independently of any agreement with the state of Ohio, my opinion has already been declared. That opinion was expressed on a similar point arising in the case of Searight v. Stokes et al., during the present term; it is unnecessary, therefore, on this occasion to repeat it. With respect to the compact which is said to have been made between the federal government and the state of Ohio, by the act of Congress relinquishing the control of the Cumberland road to the state, and by the act of the Ohio legislature, assuming the control and management of that road, it has not to my mind been shown that this compact has in any respect been violated by the state. A cursory view of the legislation, both by the state and by Congress, will establish the very converse of any such inference. That the several proceedings on the part of the state steer entirely clear of collision with the letter of that compact, has not, so far as I have heard, been even disputed. The statute of Ohio, passed on the 4th of February, 1831, after several provisions-1st, investing the governor of the state with power to take under his care that portion of the Cumberland road comprised within the limits of the state; 2dly, prescribing the rates of toll to be collected; 3dly, laying down regulations for the police of the road; contains in the second proviso of the 4th section the following enactment: 'Provided also, that no toll shall be received or collected for the passage of any stage or coach carrying the United States mail, or horses bearing the same, or any wagon or carriage laden with the property of the United States, or any cavalry or other troops, arms or military stores belonging to the same, or to any of the states of the union; or any person or persons on duty in the military service of the United States, &c., &c.' The 15th section of the same law is in the following words: 'That it shall be lawful for the General Assembly at any future session thereof, without the assent of Congress, to change, alter, or amend this act; provided that the same shall not be so changed, altered, or amended, as to reduce or increase the rates of toll hereby established, below or above a sum necessary to defray the expenses incident to the preservation and repair of the said road, to the erection of gates and toll-houses thereon, and for the payment of the fees or salaries of the superintendent, the collectors of tolls, and such other agents as may be necessarily employed in the preservation and repair of the same, according to the true intent and meaning of the act.' The act of Congress of the 2d of March, 1831, (4 Story L. U.S., p. 2250,) is nothing more than a literal recital of the law of Ohio, and an entire and unqualified assent to, and adoption of, that law. These statutes comprise all that has been ever done by the state and federal governments, which amounts to any thing in the nature of an agreement or compact between them in reference to the Cumberland road. Let us now inquire what it is that, by reasonable and proper construction, these laws import? And it should, in their examination, ever be borne in mind, that whatsoever the law of Ohio has ordained in reference to its subject matter; whatever rights or powers it has claimed for the state in regard to it, the act of Congress has unconditionally recognized the whole. The second proviso of the 4th section, already quoted, contains no stipulation that ordinary travellers or passengers, or any others indeed, or any descriptions of property, save those expressly enumerated in the proviso, shall pass upon the road free of toll. It concedes to the federal government that stages carrying the mail, i. e. the carriages and the horses necessary for their use, and the mail itself, should not pay toll; but with respect to private travellers, and to every thing within or without those carriages, the law is entirely silent. By what correct implication, then, can the power of the state to levy tolls on travellers in such carriages be taken away. I can conceive of no implication tending to such a result, which would not obviously do violence to the language of the statute, as it would be every correct rule of construction, and to every intendment consistent with the natural and plain objects of the law. The fact that the state has exacted tolls on passengers in the stages carrying the mails, only beyond a certain number of carriages so employed, can by no correct reasoning affect the right of the state in this matter, however it might be received as a measure either of policy or liberality; for having the power absolutely to exact tolls of all travellers on the road not exempted by the proviso, this power carried with it, by every sound rule of logic, the right to discriminate between the subjects of her power. She had then a perfect right to declare that travellers in specified carriages carrying the mail should pass free of toll, and that those transported in other vehicles, although bearing the mail, likewise should be subjected to the payment of toll. Such a regulation the state had the power to enact, had it been the dictate of mere caprice. A correct apprehension, however, of her policy and interests in reference to this road, and in reference to the accommodation of the public, will develop a more enlarged and more equitable motive for the measures adopted by the state, showing those measures to have been produced by the force of supervening circumstances. It cannot be denied, that in assuming the management of this road, the purpose of the state was to maintain and preserve it as a commodious highway. By the title of the law passed for its assumption, viz., 'An act for the preservation and repair of the United States road,' as well as by every clause and provision of that law, this object is clearly evinced. It is equally undeniable, that the means in contemplation for the accomplishment of this object were the usual and natural means by which artificial highways are supported, viz.: the tolls collectable on travellers and on property transported upon it. The concession to the federal government of the free passage of a portion of its mails over this road, and of the vehicles in which they might be carried, was an act of fairness and liberality which should not be made the pretext for abuse and monopoly, such as must, if permitted, dry up the source whence the means of maintaining the road are to be derived, and which would operate for the exclusive advantage of the favorites of such monopoly, and for the serious injury of the public. To guard against consequences like these, the power reserved by the 15th section of the law of 1831 was retained by the state, a power expressly recognized to its full extent by the act of Congress adopting the former law; and it can as little be doubted, that, in the practical experience of those consequences, and in the intention of applying a remedy for them, the law of Ohio of March 9th, 1838, and the order of the Board of Public Works of the same state, had their origin.

But it is argued that the exaction of tolls on travellers in stages carrying the mails, would be a violation of the compact between the two governments, because it would enhance the demands of contractors for transporting the mail, and thereby become a tax upon the federal treasury, and the same degree an impediment to the conveyance of the mails. It is a sufficient reply to such an argument to remark, that neither the law of Ohio nor the act of Congress adopting that law, stipulates any exemption from tolls on travellers, but the exemption is limited to carriages only; and it is an inflexible rule of contract, too familiar to be commented on here, that neither party, singly, can superadd a term or condition to a contract completed. This argument is therefore utterly without force, even if the effects it seeks to deduce could be demonstrated. It is fallacious too in another respect. The monopoly in support of which it is adduced, by enabling the mail contractor to drive off all competition, whilst it puts it in his power to withhold the tolls by payment of which the road would be supported, enables him to practise the very extortions upon the government which fair competition would be the surest means of preventing. But conceding, for the moment, that a denial to the contractor of the privilege now contended for, might enhance the price of transporting the mails, the question still very properly arises, whether this effect (were the language of the law even doubtful) would justify the extension to him of such a privilege? A just view of the legislation of both the state and federal governments, and of the obvious purposes of that legislation, must compel a negative answer to this question. The purposes designed by this legislation were the preservation and repair of the National road. Such are the objects announced, not only in the titles of the laws themselves, but provided for in all their enacting sections; and the quo modo declared by these enactments is the levying of tolls. Is it then reasonable or logical, or rather is it not inconsistent and contradictory, to attempt to deduce from them conclusions which fall not within their terms, but which go to defeat every end which must have been within the contemplation of the parties; for which indeed these enactments all profess to have been made. Is not this attempt in violation of all rules for the construction either of statutes or contracts, which always preserve the main and obvious intentions of legislators or of contracting parties, to the exclusion of minor though seemingly contradictory considerations? But the language of these laws is by no means equivocal. Except for the exemption contained in the second proviso of the 4th section of the Ohio statute of 1831, all mails and the carriages in which they are transported, the troops, arms, and property of the United States of every description, would have been subject to the payment of tolls; and the exemption can be extended no father than the plain and natural import of the language of that proviso will justify.

Again, it has been said, that the exaction of tolls from travellers in the mail-stages would be a violation of the contract, because by such a demand travellers would be excluded from those stages, and that the safety of the mails would be endangered by this exclusion; it being assumed by this argument that the travellers are to constitute a guard to the mails. To this seemingly strange and far-fetched argument, it might be sufficient to answer, as was done to the former, that no stipulation for the transportation of such a guard, (if by any violence to language ordinary casual wayfarers could be so denominated,) is contained in the contract; and that the attempt thus to introduce any such stipulation or engraft it upon that contract, is a palpable and unwarrantable interpolation upon its terms and its objects. In the next place, the propounders of this argument may be challenged to show either the duty or the willingness of such travellers, to take upon themselves the hazards, the trouble, or the responsibilities of guarding the United States mails. With equal cogency may those who thus reason be called upon to prove, that amongst the promiscuous multitudes who travel in stages, there may not be comprised those who roam the country with the view of committing depredations, and from whose designs the safety of the mails may be most endangered.

Upon a full consideration of this case, I am brought to conclude, that the acts of the legislature of Ohio, subsequent in date to the 2d of March, 1831, and the proceedings of the Board of Public Works of that state, founded upon those statutes, are in violation of no principle or right guarantied by the Constitution of the United States, nor of any acts of Congress passed in pursuance thereof; nor of any contract at any time existing between the state of Ohio and the federal government. I am farther of opinion, that the aforesaid laws of Ohio were on the contrary designed, and are of a tendency, fairly and justly, to distribute the tolls collectible within her limits, on the road in question, so as to make them properly subservient to the views of the federal government and of the government of Ohio, at the times of passing of the state law of February 4th, 1831, and the act of Congress of the 2d of March, 1831; and in conformity with the express language of those laws; and to prevent unwarrantable monopoly, and serious if not fatal detriment to the road. I think that the decision of the Supreme Court of Ohio, being a correct exposition of the laws designed to effect these important objects, ought therefore to be affirmed.

title: Neil v. Ohio/Dissent Daniel


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 First published in 1908.


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Rh Remarks on the Religion of the Edinburgh Review.

On Literary and Critical Pretenders.

A Peep into the Parliament-house.

On old Scottish Proverbs on the Marriage State.

On old Scotch Songs and Ballads on the same subject.

Original Letters of King Charles II.

Essays on the Living Poets of Britain. No I. Crabbe in our January Number.

Dialogues between the Dead and the Living, viz.

I. Duke of Marlborough and Duke of Wellington.—II. Kant and Coleridge.—III. Milton and Wordsworth.—IV. Goldsmith and Crabbe.—V. Sterne and Mackenzie.—VI. Julius Caesar and Napoleon.—VII. Cataline and Brougham.—VIII. Dennis and Jeffrey.—IX. Pope and Dr Thomas Brown.—X. Thersites and Leigh Hunt.—XI. Palladio and Bailie Johnstone.—XII. Plato and Forsyth.—XIII. Aristotle and Francis Maximus McNab.—XIV. Adam Smith and James Grahame, Esq. Advocate.

A series of Letters from Lord Reays' Country.

Public will observe, from the above List of Articles, that we intend our Magazine to be a Depository of Miscellaneous Information and Discussion. We shall admit every Communication of Merit, whatever may be the opinion of the writer, on Literature, Poetry, Philosophy, Statistics, Politics, Manners, and Human Life. Our own opinions, and those of our regular Correspondents, will be found uniformly consistent—but we invite all intelligent persons who choose it, to lay their ideas before the world in our Publication; and we only reserve to ourselves the right of commenting upon what we do not approve. No Anonymous Communication, either in Prose or Verse, however great its merit, will be received or noticed. But every Contributor to our Work may depend upon the most inviolable secrecy; and all Letters, addressed to us, will meet with a prompt and decisive Reply. .

The communication of Lupus is not admissible. D. B.'s Archaeological Notices are rather heavy. We are obliged to our worthy Correspondent M. for his History of "Bowed David," but all the anecdotes of that personage are incredibly stupid, so let his bones rest in peace. When G's communications on Natural History are not anonymous, they will be attended to. Cornelius Webb will observe that we have availed ourselves of his Letter. We have received an interesting Note, inclosing a beautiful little Poem, from Mr Hector Macneil, the celebrated author of Will and Jean, and need not say how highly we value his communication. Mrs Grant's (of Laggan) beautiful Verses were unfortunately received after our last sheet had gone to press, but they will appear in our next. The beautiful Verses on Mungo Park will be inserted. Also, "Edith and Nora," and "The Earthquake." "O were my Love, &c." is pretty, though not very original, but it will find a corner. Duck-lane, a Town Eclogue, by Leigh Hunt—and the Innocent Incest, by the same gentleman, are under consideration; their gross indecency must however be washed out. If we have been imposed upon by some wit, these compositions will not be inserted. Mr James Thomson, private secretary for the charities of the Dukes of York and Kent, is, we are afraid, a very bad Poet, nor can the Critical Opinions of the Princes of the Blood Royal be allowed to influence ours. Some Remarks on an interesting little volume, "Evening Hours," may perhaps appear. If not, the author of that work has our best wishes. Reason has been given for our declining to notice various other Communications.


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SOME OBSERVATIONS ON THE "BIOGRAPHIA LITERARIA" OF S. T. COLERIDGE, ESQ.—1817.

a man looks back on his past existence, and endeavours to recall the incidents, events, thoughts, feelings, and passions of which it was composed, he sees something like a glimmering land of dreams, peopled with phantasms and realities undistinguishably confused and intermingled—here illuminated with dazzling splendour, there dim with melancholy mists,—or it may be shrouded in impenetrable darkness. To bring, visibly and distinctly before our memory, on the one hand, all our hours of mirth and joy, and hope and exultation,—and, on the other, all our perplexities, and fears and sorrows, and despair and agony,—(and who has been so uniformly wretched as not to have been often blest?—who so uniformly blest as not to have been often wretched?)—would be as impossible as to awaken, into separate remembrance, all the changes and varieties which the seasons brought over the material world,—every gleam of sunshine that beautified the Spring,—every cloud and tempest that deformed the Winter. In truth, were this power and domination over the past given unto us, and were we able to read the history of our lives all faithfully and perspicuously recorded on the tablets of the inner spirit,—those beings, whose existence had been most filled with important events and with energetic passions, would be the most averse to such overwhelming survey—would recoil from trains of thought which formerly agitated and disturbed, and led them, as it were, in triumph beneath the yoke of misery or happiness. The soul may be repelled from the contemplation of the past as much by the brightness and magnificence of scenes that shifted across the glorious drama of youth, as by the storms that scattered the fair array into disfigured fragments; and the melancholy that breathes from vanished delight is, perhaps, in its utmost intensity, as unendurable as the wretchedness left by the visitation of calamity. There are spots of sunshine sleeping on the fields of past existence too beautiful, as there are caves among its precipices too darksome, to be looked on by the eyes of memory; and to carry on an image borrowed from the analogy between the moral and physical world, the soul may turn away in sickness from the untroubled silence of a resplendent Lake, no less than from the haunted gloom of the thundering Cataract. It is from such thoughts, and dreams, and reveries, as these, that all men feel how terrible it would be to live over again their agonies and their transports; that the happiest would fear to do so as much as the most miserable; and that to look back to our cradle seems scarcely less awful than to look forward to the grave.

But if this unwillingness to bring before our souls, in distinct array, the more solemn and important events of our lives, be a natural and perhaps a wise feeling, how much more averse must every reflecting man be to the ransacking of his inmost spirit for all its hidden emotions and passions, to the tearing away that shroud which oblivion may have kindly flung over his vices and his follies, or that fine


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4 and delicate veil which Christian humility draws over his virtues and acts of benevolence. To scrutinize and dissect the character of others is an idle and unprofitable task; and the most skilful anatomist will often be forced to withhold his hand when he unexpectedly meets with something he does not understand—some conformation of the character of his patient which is not explicable on his theory of human nature. To become operators on our own shrinking spirits is something worse; for by probing the wounds of the soul, what can ensue but callousness or irritability. And it may be remarked, that those persons who have busied themselves most with inquiries into the causes, and motives, and impulses of their actions, have exhibited, in their conduct, the most lamentable contrast to their theory, and have seemed blinder in their knowledge than others in their ignorance.

It will not be supposed that any thing we have now said in any way bears against the most important duty of self-examination. Many causes there are existing, both in the best and the worst parts of our nature, which must render nugatory and deceitful any continued diary of what passes through the human soul; and no such confessions could, we humbly conceive, be of use either to ourselves or to the world. But there are hours of solemn inquiry in which the soul reposes on itself; the true confessional is not the bar of the public, but it is the altar of religion; there is a Being before whom we may humble ourselves without being debased; and there are feelings for which human language has no expression, and which, in the silence of solitude and of nature, are known only unto the Eternal.

The objections, however, which might thus be urged against the writing and publishing accounts of all our feelings,—all the changes of our moral constitution,—do not seem to apply with equal force to the narration of our mere speculative opinions. Their rise, progress, changes, and maturity, may be pretty accurately ascertained; and as the advance to truth is generally step by step, there seems to be no great difficulty in recording the leading causes that have formed the body of our opinions, and created, modified, and coloured our intellectual character. Yet this work would be alike useless to ourselves and others, unless pursued with a true magnanimity. It requires, that we should stand aloof from ourselves, and look down, as from an eminence, on our souls toiling up the hill of knowledge;—that we should faithfully record all the assistance we received from guides or brother pilgrims;—that we should mark the limit of our utmost ascent, and, without exaggeration, state the value of our acquisitions. When we consider how many temptations there are even here to delude ourselves, and by a seeming air of truth and candour to impose upon others, it will be allowed, that, instead of composing memoirs of himself, a man of genius and talent would be far better employed in generalizing the observations and experiences of his life, and giving them to the world in the form of philosophic reflections, applicable not to himself alone, but to the universal mind of Man.

What good to mankind has ever flowed from the confessions of Rousseau, or the autobiographical sketch of Hume? From the first we rise with a confused and miserable sense of weakness and of power—of lofty aspirations and degrading appetencies—of pride swelling into blasphemy, and humiliation pitiably grovelling in the dust—of purity of spirit soaring on the wings of imagination, and grossness of instinct brutally wallowing in "Epicurus' stye,"—of lofty contempt for the opinion of mankind, yet the most slavish subjection to their most fatal prejudices—of a sublime piety towards God, and a wild violation of his holiest laws. From the other we rise with feelings of sincere compassion for the ignorance of the most enlightened. All the prominent features of Hume's character were invisible to his own eyes; and in that meagre sketch which has been so much admired, what is there to instruct, to rouse, or to elevate—what light thrown over the duties of this life or the hopes of that to come? We wish to speak with tenderness of a man whose moral character was respectable, and whose talents were of the first order. But most deeply injurious to every thing lofty and high-toned in human Virtue, to every thing cheering, and consoling, and sublime in that Faith which


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1817.] sheds over this Earth a reflection of the heavens, is that memoir of a worldly-wise Man; in which he seems to contemplate with indifference the extinction of his own immortal soul, and jibes and jokes on the dim and awful verge of Eternity.

We hope that our readers will forgive these very imperfect reflections on a subject of deep interest, and accompany us now on our examination of Mr Coleridge's "Literary Life," the very singular work which caused our ideas to run in that channel. It does not contain an account of his opinions and literary exploits alone, but lays open, not unfrequently, the character of the Man as well as of the Author; and we are compelled to think, that while it strengthens every argument against the composition of such Memoirs, it does, without benefitting the cause either of virtue, knowledge, or religion, exhibit many mournful sacrifices of personal dignity, after which it seems impossible that Mr Coleridge can be greatly respected either by the Public or himself.

Considered merely in a literary point of view, the work is most execrable. He rambles from one subject to another in the most wayward and capricious manner; either from indolence, or ignorance, or weakness, he has never in one single instance finished a discussion; and while he darkens what was dark before into tenfold obscurity, he so treats the most ordinary common-places as to give them the air of mysteries, till we no longer know the faces of our old acquaintances beneath their cowl and hood, but witness plain flesh and blood matters of fact miraculously converted into a troop of phantoms. That he is a man of genius is certain; but he is not a man of a strong intellect nor of powerful talents. He has a great deal of fancy and imagination, but little or no real feeling, and certainly no judgment. He cannot form to himself any harmonious landscape such as it exists in nature, but beautified by the serene light of the imagination. He cannot conceive simple and majestic groupes of human figures and characters acting on the theatre of real existence. But his pictures of nature are fine only as imaging the dreaminess, and obscurity, and confusion of distempered sleep; while all his agents pass before our eyes like shadows, and only impress and affect us with a phantasmagorial splendour.

It is impossible to read many pages of this work without thinking that Mr Coleridge conceives himself to be a far greater man than the Public is likely to admit; and we wish to waken him from what seems to us a most ludicrous delusion. He seems to believe that every tongue is wagging in his praise—that every ear is open to imbibe the oracular breathings of his inspiration. Even when he would fain convince us that his soul is wholly occupied with some other illustrious character, he breaks out into laudatory exclamations concerning himself; no sound is so sweet to him as that of his own voice; the ground is hallowed on which his footsteps tread; and there seems to him something more than human in his very shadow. He will read no books that other people read; his scorn is as misplaced and extravagant as his admiration; opinions that seem to tally with his own wild ravings are holy and inspired; and, unless agreeable to his creed, the wisdom of ages is folly; and wits, whom the world worship, dwarfed when they approach his venerable side. His admiration of nature or of man, we had almost said his religious feelings towards his God, are all narrowed, weakened, and corrupted, and poisoned by inveterate and diseased egotism; and instead of his mind reflecting the beauty and glory of nature, he seems to consider the mighty universe itself as nothing better than a mirror in which, with a grinning and idiot self-complacency, he may contemplate the Physiognomy of Samuel Taylor Coleridge. Though he has yet done nothing in any one department of human knowledge, yet he speaks of his theories, and plans, and views, and discoveries, as if he had produced some memorable revolution in Science. He at all times connects his own name in Poetry with Shakespeare, and Spenser, and Milton; in politics with Burke, and Fox, and Pitt; in metaphysics with Locke, and Hartley, and Berkely, and Kant—feeling himself not only to be the worthy compeer of those illustrious Spirits, but to unite, in his own mighty intellect, all the glorious powers and faculties by which they were separately distinguished, as if his soul were endowed with all human power, and was


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6 the depository of the aggregate, or rather the essence of all human knowledge. So deplorable a delusion as this, has only been equalled by that of Joanna Southcote, who mistook a complaint in the bowels for the divine afflatus; and believed herself about to give birth to the regenerator of the world, when sick unto death of an incurable and loathsome disease.

The truth is, that Mr Coleridge is but an obscure name in English literature. In London he is well known in literary society, and justly admired for his extraordinary loquacity: he has his own little circle of devoted worshippers, and he mistakes their foolish babbling for the voice of the world. His name, too, has been often foisted into Reviews, and accordingly is known to many who never saw any of his works. In Scotland few know or care any thing about him; and perhaps no man who has spoken and written so much, and occasionally with so much genius and ability, ever made so little impression on the public mind. Few people know how to spell or pronounce his name; and were he to drop from the clouds among any given number of well informed and intelligent men north of the Tweed, he would find it impossible to make any intelligible communication respecting himself; for of him and his writings there would prevail only a perplexing dream, or the most untroubled ignorance. We cannot see in what the state of literature would have been different, had he been cut off in childhood, or had he never been born; for except a few wild and fanciful ballads, he has produced nothing worthy remembrance. Yet, insignificant as he assuredly is, he cannot put pen to paper without a feeling that millions of eyes are fixed upon him; and he scatters his Sibylline Leaves around him, with as majestical an air as if a crowd of enthusiastic admirers were rushing forward to grasp the divine promulgations, instead of their being, as in fact they are, coldly received by the accidental passenger, like a lying lottery puff or a quack advertisement.

This most miserable arrogance seems, in the present age, confined almost exclusively to the original members of the Lake School, and is, we think, worthy of especial notice, as one of the leading features of their character. It would he difficult to defend it either in Southey or Wordsworth; but in Coleridge it is altogether ridiculous. Southey has undoubtedly written four noble Poems—Thalaba, Madoc, Kehama, and Roderick; and if the Poets of this age are admitted, by the voice of posterity, to take their places by the side of the Mighty of former times in the Temple of Immortality, he will be one of that sacred company. Wordsworth, too, with all his manifold errors and defects, has, we think, won to himself a great name, and, in point of originality, will be considered as second to no man of this age. They are entitled to think highly of themselves, in comparison with their most highly gifted contemporaries; and therefore, though their arrogance may be offensive, as it often is, it is seldom or ever utterly ridiculous. But Mr Coleridge stands on much lower ground, and will be known to future times only as a man who overrated and abused his talents who saw glimpses of that glory which he could not grasp—who presumptuously came forward to officiate as High-Priest at mysteries beyond his ken—and who carried himself as if he had been familiarly admitted into the Penetralia of Nature, when in truth he kept perpetually stumbling at the very Threshold.

This absurd self-elevation forms a striking contrast with the dignified deportment of all the other great living Poets. Throughout all the works of Scott, the most original-minded man of this generation of Poets, scarcely a single allusion is made to himself; and then it is with a truly delightful simplicity, as if he were not aware of his immeasurable superiority to the ordinary run of mankind. From the rude songs of our forefathers he has created a kind of Poetry, which at once brought over the dull scenes of this our unimaginative life all the pomp, and glory, and magnificence of a chivalrous age. He speaks to us like some ancient Bard awakened from his tomb, and singing of visions not revealed in dreams, but contemplated in all the freshness and splendour of reality. Since he sung his bold, and wild, and romantic lays, a more religious solemnity breathes from our mouldering Abbeys, and a sterner grandeur frowns over our time-shattered Castles. He has peopled our hills with Heroes, even as Ossian peopled them; and


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1817.] like a presiding spirit, his Image haunts the magnificent cliffs of our Lakes and Seas. And if he be, as every heart feels, the author of those noble Prose Works that continue to flash upon the world, to him exclusively belongs the glory of wedding Fiction and History in delighted union, and of embodying in imperishable records the manners, character, soul, and spirit of Caledonia; so that, if all her annals were lost, her memory would in those Tales be immortal. His truly is a name that comes to the heart of every Briton with a start of exultation, whether it be heard in the hum of cities or in the solitude of nature. What has Campbell ever obtruded on the Public of his private history? Yet his is a name that will be hallowed for ever in the souls of pure, and aspiring, and devout youth; and to those lofty contemplations in which Poetry lends its aid to Religion, his immortal Muse will impart a more enthusiastic glow, while it blends in one majestic hymn all the noblest feelings which can spring from earth, with all the most glorious hopes that come from the silence of eternity. Byron indeed speaks of himself often, but his is like the voice of an angel heard crying in the storm or the whirlwind; and we listen with a kind of mysterious dread to the tones of a Being whom we scarcely believe to be kindred to ourselves, while he sounds the depths of our nature, and illuminates them with the lightnings of his genius. And finally, who more gracefully unostentatious than Moore, a Poet who has shed delight, and joy, and rapture, and exultation, through the spirit of an enthusiastic People, and whose name is associated in his native Land with every thing noble and glorious in the cause of Patriotism and Liberty. We could easily add to the illustrious list; but suffice it to say, that our Poets do in general bear their faculties meekly and manfully, trusting to their conscious powers, and the susceptibility of generous and enlightened natures, not yet extinct in Britain, whatever Mr Coleridge may think; for certain it is, that a host of worshippers will crowd into the Temple, when the Priest is inspired, and the flame he kindles is from Heaven.

Such has been the character of great Poets in all countries and in all times. Fame is dear to them as their vital existence—but they love it not with the perplexity of fear, but the calmness of certain possession. They know that the debt which nature owes them must be paid, and they hold in surety thereof the universal passions of mankind. So Milton felt and spoke of himself, with an air of grandeur, and the voice as of an Archangel, distinctly hearing in his soul the music of after generations, and the thunder of his mighty name rolling through the darkness of futurity. So divine Shakespeare felt and spoke; he cared not for the mere acclamations of his subjects; in all the gentleness of his heavenly spirit he felt himself to be their prophet and their king, and knew, "When all the breathers of this world are dead, That he entombed in men's eyes would lie." Indeed, who that knows any thing of Poetry could for a moment suppose it otherwise? What ever made a great Poet but the inspiration of delight and love in himself, and an empassioned desire to communicate them to the wide spirit of kindred existence? Poetry, like Religion, must be free from all grovelling feelings; and above all, from jealousy, envy, and uncharitableness. And the true Poet, like the Preacher of the true religion, will seek to win unto himself and his Faith, a belief whose foundation is in the depths of love, and whose pillars are the noblest passions of humanity.

It would seem that in truly great souls all feeling of self-importance, in its narrower sense, must be incompatible with the consciousness of a mighty achievement. The idea of the mere faculty or power is absorbed as it were in the idea of the work performed. That work stands out in its glory from the mind of its Creator; and in the contemplation of it, he forgets that he himself was the cause of its existence, or feels only a dim but sublime association between himself and the object of his admiration; and when he does think of himself in conjunction with others, he feels towards the scoffer only a pitying sorrow for his blindness—being assured, that though at all times there will be weakness, and ignorance, and worthlessness, which can hold no communion with him or with his thoughts, so will there be at all times the pure, the noble, and the pious, whose delight it


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ProCD v. Zeidenberg

For PROCD, INCORPORATED, Plaintiff - Appellant: Michael J. Lawton, Kenneth B. Axe, LATHROP & CLARK, Madison, WI, USA. Thomas N. O'Connor, John T. Gutkoski, Lauren C. Panora, HALE & DORR, Boston, MA, USA.

For MATTHEW ZEIDENBERG, SILKEN MOUNTAIN WEB SERVICES, INCORPORATED, Defendants - Appellees: Keith Napolitano, Madison, WI, USA. David A. Austin, Madison, WI.

For INFORMATION INDUSTRY ASSOCIATION, AMERICAN MEDICAL ASSOCIATION, ASSOCIATION OF AMERICAN PUBLISHERS, Amicus Curiae: June M. Besek, Morton D. Goldberg, Jesse M. Feder, SCHWAB, GOLDBERG, PRICE & DANNAY, New York, NY.

For BUSINESS SOFTWARE ALLIANCE, Amicus Curiae: Christopher A. Meyer, Michael R. Klipper, MEYER & KLIPPER, Washington, DC.

For SOFTWARE PUBLISHERS ASSOCIATION, Amicus Curiae: Barry D. Weiss, Stuart Smith, Ronald Julian Palenski, GORDON & GLICKSON, Chicago, IL, USA. Kenneth A. Wasch, Mark Nebergall, SOFTWARE PUBLISHERS ASSOCIATION, INC., Washington, DC.

For AMERICAN COMMITTEE FOR INTEROPERABLE SYSTEMS, Amicus Curiae: Mark Alan Lemley, UNIVERSITY OF TEXAS SCHOOL OF LAW, Austin, TX. Peter M.C. Choy, AMERICAN COMMITTEE FOR INTEROPERABLE SYSTEMS, Mountain View, CA.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

title: ProCD v. Zeidenberg


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18 known to the public, by his advice and commendation; and along with Lord Byron, was the principal means of bringing "Bertram" on the stage. Such conduct was worthy of the "Mighty Minstrel," and consistent with that true nobility of mind by which he is characterized, and which makes him rejoice in the glory of contemporary genius. Mr Coleridge speaks with delight of the success of his own Tragedy—of his enlightened audience, and the smiling faces of those he recollected to have attended his Lectures on Poetry at the Royal Institution. How does he account for the same audience admiring Bertram? Let him either henceforth blush for his own fame, or admit Mr Maturin's claims to a like distinction.

We have done. We have felt it our duty to speak with severity of this book and its author and we have given our readers ample opportunities to judge of the justice of our strictures. We have not been speaking in the cause of Literature only, but, we conceive, in the cause of Morality and Religion. For it is not fitting that He should be held up as an example to the rising generation (but, on the contrary, it is most fitting that he should be exposed as a most dangerous model), who has alternately embraced, defended, and thrown aside all systems of Philosophy—and all creeds of Religion,—who seems to have no power of retaining an opinion,—no trust in the principles which he defends,—but who fluctuates from theory to theory, according as he is impelled by vanity, envy, or diseased desire of change,—and who, while he would subvert and scatter dnto dust those structures of knowledge, reared by the wise men of this and other generations, has nothing to erect in their room but the baseless and air-built fabrics of a dreaming Imagination.

CURIOUS METEOROLOGICAL PHENONOMENA OBSERVED IN ARGYLLSHIRE.

MR EDITOR,

meteorological phenomenon described in a paper read before the Wernerian Society, and given in the Edinburgh Monthly Magazine, No V. p. 471, though it may have been singular in the neighbourhood of Leadhills, is not a solitary instance of the same appearance; and if you think it worthy of notice, I shall transcribe from my note-book its occurrence to me on two different occasions.

Having resided for several years in the West Highlands, my profession often obliged me to be on horseback in the night as well as during the day. From the western situation of that country, in the immediate vicinity of the Atlantic Ocean, the climate is generally moist and variable, occasioned by the prevailing winds, which, for the greater part of the year, blow from that quarter, and carry along with them immense volumes of clouds collected over that immeasurable expanse of water, which, being attracted by the great altitude of the mountains, are broken upon their summits, and pour down their torrents on the surrounding country;—of this description was the 6th of October 1799. I mounted my horse in the morning, to encounter—what I often had done before—a long ride with a wet skin. Along with the rain there was its usual accompaniment, a breeze of wind, which continued till dusk, when it became calm. The rain also gradually abated, and at last disappeared, but left in its place a dense, humid vapour, so that at the distance of a few yards no object was visible. The night became dark and dreary, but I continued my journey.

In passing along a road that leads by the margin of an extensive moss, and not far from a considerable river which intersects a great plain, I was surprised, and I confess startled, by the sudden illumination of my horse's whole mane and ears, which rapidly appeared as if thickly covered with burning sulphur, or ignited phosphorus, and partially spread over the breast of my great coat, and edge of my hat.

Having never before seen any thing of the kind, I believed that I was enveloped by an electric cloud, and felt considerable alarm lest an explosion