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Rh 14. The colonies of the middle and southern sections of the territory, which later became the United States, were wholly

proprietary in form. This was true of New Netherland (founded by the Dutch West India Company in 1621) and of New Sweden (settled under the authority of the Swedish Royal Company in 1638), as well as of the English colonies which were established on that coast. In the case of Virginia and of the Dutch and Swedish settlements, trading companies were the proprietors. But the later English colonies, beginning with Maryland in 1632, and continuing with the Carolinas (1663), New York (1664), New Jersey (1665), Pennsylvania and the Lower Counties, afterwards Delaware (1681), were founded by individual proprietors or proprietary boards. Georgia (1732), the only English colony settled after 1681 on the continent, existed for twenty years under a proprietary board of trustees. By the efforts of adventurers of this class, put forth chiefly during the period of the Restoration, the entire coast-line from Florida to Acadia was permanently occupied by the English. But, unlike New England, the population of the other sections was of a mixed character, as were their economic and religious systems, and to an extent also their political institutions.

15. As has already been stated, in their internal structure and in the course of their history the proprietary provinces differed very materially from the corporate colonies. Those of later English origin also differed in some important respects from Virginia under the company and from New Netherland and New Sweden. The system of joint management of land and trade, which was so characteristic of early Virginia, was outgrown before the other proprietary provinces were founded. Neither did it prevail in the Dutch and Swedish provinces, but there the law and institutions of government of those nations existed, and no provision whatever was made for assemblies.

16. In the proprietary province the proprietor, or board of proprietors, was the grantee of powers, while in the corporate colony it was the body of the freemen organized as an assembly or general court. The proprietor might or might not be a resident of the province. He might exercise his powers in person, or, as was usually the case, delegate them to one or more appointees. In any case, the form of government of the proprietary province was essentially monarchical in character. The powers that were bestowed were fundamentally the same as those which were enjoyed during the middle ages by the counts palatine of Chester and Durham. In some charters express reference was made to Durham as a model. The normally developed provinces which resulted were miniature kingdoms, and their proprietors petty kings. As Coke said, their powers were king-like though not sovereign. This character arose from the fact that the grantee of power was the executive of the province. This branch of government was thereby brought into the forefront. At the beginning and for a long time thereafter it continued to bear the leading part in affairs. It was not so in the corporate colony, for there the freemen and the general court stood at the centre of the system, and their ultimate control, which no one dreamed of disputing, was maintained through a system of annual elections. In most of the corporate colonies the executive (i. e. the body of magistrates) was strong, but that was due to the political and social influence which its officials had gained, and not to their tenure of office. But the nature of the proprietary province demands further explanation.

17. In every case, apart from the ordinary rights of trade and the guarantees of the liberties of the colonists, the powers

which were bestowed on the proprietors were territorial and governmental. The territory of the provinces was granted under the conditions which by English law controlled private estates of land. An entire province, or any part of it, could be leased, sold or otherwise disposed of like a private estate. It was an estate of inheritance, descending to heirs. The attitude of proprietors toward it was that of landlords, investors or speculators in land. They advertised for settlers, and, in doing so, an ever present motive with them was the desire

to secure more private income from land. In 1664 the duke of York sold New Jersey to Berkeley and Carteret, and the sale was effected by deeds of lease and release. In 1708 William Penn mortgaged Pennsylvania, and under his will devising the province legal complications arose which necessitated a suit in chancery. Thus proprietors and proprietary boards changed with every generation or oftener. All this, of course, was different in the corporate colony.

18. In all the later proprietary charters, except that of New York, the operation of the statute Quia emptores was suspended, so far as relations between the proprietor and his immediate grantees were concerned. By virtue of this provision each proprietor, or board, became the centre from which originated an indefinite number of grants. These were held directly of the proprietor and through him of the Crown. In practice the same was true also of New York. The proprietors were thus left free to make grants on such conditions as they chose—limited by the nature of their patents—to erect or permit the erection of manors, to devise the machinery necessary for surveying, issuing and recording grants, and collecting rents. Preparatory to the exercise of this power, the proprietors issued so-called “concessions” or “conditions of plantation,” stating the terms on which they would grant lands to colonists. These were often accompanied by descriptions of the country, which were intended to be advertisements for settlers. Under a system of head rights, analogous to that which existed in Virginia, land was thus bestowed on settlers upon easy terms. Proportional amounts of land were granted upon the importation of servants, and in this way a traffic in servants and their head rights to land was encouraged among planters and masters of merchant vessels. In all the provinces, except New Netherland, a quit rent was imposed on all grants. In the Dutch province rents were sometimes imposed, but they varied in character and differed from the English quit rent. In Maryland fines were levied on alienations. In Maryland and Pennsylvania the demand for land became so great that it was sold. In most of the provinces manorial grants were made, but in none except New Netherland did the manor become an institution of government. In all the provinces territorial affairs were administered directly by the provincial authorities, and not by towns as in New England. In Maryland a land office was fully organized, towns developed only to a very limited extent, and when they did originate they were in no sense village communities. Lots in them were granted by provincial authorities and they were subject to a quit rent. They were simply more densely populated parts of the counties, and, unless incorporated as boroughs, had no distinct institutional life. In almost all cases land, in the provinces, was granted to individuals, and individual ownership, with direct relations between the owners or tenants and the proprietary authorities, was the rule. This was in marked contrast to the conditions which have been described as existing in the corporate colonies. In the corporate colony the elements of the fief had been eliminated, but in the provinces they still survived to a considerable degree.

19. Had governmental powers not accompanied the territorial grants which have been described, these grants would have been estates of land, unusually large, no doubt, but nothing more. In cases where the governmental rights of proprietors were suspended or resigned into the hands of the Crown, they remained thereafter only private landlords. But the fact that rights of government were bestowed with the land made the territory a province and the proprietor its political head. The bestowment of rights of land carried with it not only the obligation to pay quit rent, but to take to the proprietor the oath of fidelity.

20. In the discussion of the corporate colony it was necessary to dwell first and chiefly on the legislature. But in the case of the proprietary province the executive, for the reason already mentioned, demands first attention. The provincial charters made the proprietors the executives of their provinces and for the most part left it to them to determine how and under what forms the governmental powers which they had received should

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60 this stage of civilisation simply the copy, the mimic, of the normal treatment of the hated, disdained, and conquered enemy, who is not only deprived of every right and protection but of every mercy; so we have the martial law and triumphant festival of the vae victis! in all its mercilessness and cruelty. This shows why war itself (counting the sacrificial cult of war) has produced all the forms under which punishment has manifested itself in history.

10.

As it grows more powerful, the community tends to take the offences of the individual less seriously, because they are now regarded as being much less revolutionary and dangerous to the corporate existence: the evil-doer is no more outlawed and put outside the pale, the common wrath can no longer vent itself upon him with its old licence,—on the contrary, from this very time it is against this wrath, and particularly against the wrath of those directly injured, that the evil-doer is carefully shielded and protected by the community. As, in fact, the penal law develops, the following characteristics become more and more clearly marked: compromise with the wrath of those directly affected by the misdeed; a consequent endeavour to localise the matter and to prevent a further, or indeed a general spread of the disturbance; attempts to find equivalents and to settle the whole matter (compositio); above all, the will, which manifests itself with increasing definiteness, to treat every offence as in a certain degree capable of being paid off, and consequently, at any rate

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

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Page:Folk-lore - A Quarterly Review. Volume 3, 1892.djvu/240

 232 was nothing besides this rose-tree to mark the scene of the mysterious catastrophe."

It is a curious coincidence that about 1654 roses were all that Erich could discern on a sculptured stone on the Koppen, which was regarded as a memorial of that Exodus Hamelemsis of which he was writing. Only a few years ago there were old people who professed to remember two stones in the form of a cross upon the hill ; and I myself fell in with a young man, of some twenty summers, who seemed to assert that he had often seen the record; yet I looked and looked in vain, and was scarcely solaced when Dr. Meinardus wrote to me : "A memorial stone with an inscription on the so-called Koppen you will never find. If such a thing ever existed, which is doubtful, it is no longer there."

Is the episode of the Pied Piper credible? is the question that has been for some time before me; and, at the risk of incurring your scorn, I answer that it is. A few accretions, such as no tradition or even frequently re-written story is likely to avoid, must of course be cleared off; but this may easily be done, and then I think nothing will be found remaining that any reverent-minded folk-lorer need decline to hold.

Early in the present century an account of the Hameln disaster was distilled from ten different sources (four only of them to be sipped of at the British Museum) by the Brothers Grimm, for their Deutsche Sagen where it runs essentially as follows. In the year 1284, a strange man appeared at Hameln wearing a many-coloured coat, which is said to have earned for him the name of Bundting. He gave


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Rh up to a certain point, to isolate the offender from his act. As the power and the self-consciousness of a community increases, so proportionately does the penal law become mitigated; conversely every weakening and jeopardising of the community revives the harshest forms of that law. The creditor has always grown more humane proportionately as he has grown more rich; finally the amount of injury he can endure without really suffering becomes the criterion of his wealth. It is possible to conceive of a society blessed with so great a consciousness of its own power as to indulge in the most aristocratic luxury of letting its wrong-doers go scot-free.—"What do my parasites matter to me?" might society say. "Let them live and flourish! I am strong enough for it."—The justice which began with the maxim, "Everything can be paid off, everything must be paid off," ends with connivance at the escape of those who cannot pay to escape—it ends, like every good thing on earth, by destroying itself.— The self-destruction of Justice! we know the pretty name it calls itself—Grace! it remains, as is obvious, the privilege of the strongest, better still, their super-law.

11.

A deprecatory word here against the attempts, that have lately been made, to find the origin of justice on quite another basis—namely, on that of resentment. Let me whisper a word in the ear of the psychologists, if they would fain study revenge itself at close quarters: this plant blooms its prettiest at present among Anarchists and anti-Semites, a hidden flower, as it has ever been, like

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 234 ness. 1531 and 1556 were dates that, in earlier times, appeared one under the other at Hameln upon its Neuethor, above a legend stating that the gate was erected 272 years after the Outgoing: 272 subtracted from 1531 gives 1259; from 1556, 1284; result, uncertainty. A writer in 1556, speaks of about 180 years ago; another, in 1568, puts it at about 190; while in 1643 it is a matter of 250 years since. 1284 has, at present, vogue in Hameln. I fancy Browning's direct authority for 1376 was Verstegan.

I have an impression that I range myself with a very small minority in accepting the account of the Outgoing just given as being approximately true. The explanations that have been offered to make it more credible to the majority may be glanced at. (1) It has been elaborated out of a possible mock-fight on the Koppen, in which earnest succeeded jest, and many young men were slain, and so lost to their parents. (2) An earthquake or a landslip engulfed the 130. (3) Tilo Colup, pretending that he was the Emperor Frederick II returned from the Holy Land, attracted many followers in the latter part of the 13th century, and missing Hameln lads may have been among them. (4) In 1286, Jews are said to have murdered children in a mill at Fulda: Hameln being originally Quern Hameln, the sorrow was possibly imputed to her by error. (5) There was strife in Brunswick in 1281 between Duke Albrecht and his sons. One of them, being arrested and imprisoned without warning, his sudden removal may have


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4 criticism I may incur, the profession which I hereby make of reverence and affection for our University, and of true sympathy with those who to-day carry on her manifold labours, will be accepted as no mere formal statement, but as the expression of a deep-rooted sentiment.

It is a pleasure to me, at this moment, to call to mind my friendship with the gifted man who founded this lectureship, and to join my tribute with that of so many others, to his high qualities. The knowledge of Nature lost a true and eager searcher when his labours ceased.

In choosing a subject for the discourse which it is my privilege to deliver to-day, I have ventured to select one which has largely occupied the attention of biologists during the five and forty years in which I have followed the results of scientific discovery. The title which describes it must, I fear, seem unduly ambitious since Nature and Man comprise well-nigh every topic with which such a discourse can deal. My desire, however, is more modest than my advertisement. It has become more and more a matter of conviction to me—and I believe that I share that conviction with a large body of fellow students both in this country and other civilized states—that the time has arrived when the true relation of Nature to Man has been so clearly ascertained that it should be more generally known than is at present the case, and that this knowledge should form far more largely than it does at this moment, the object of human activity and

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62 the violet, though, forsooth, with another perfume. And as like must necessarily emanate from like, it will not be a matter for surprise that it is just in such circles that we see the birth of endeavours (it is their old birthplace—compare above, First Essay, paragraph 14), to sanctify revenge under the name of justice (as though Justice were at bottom merely a development of the consciousness of injury), and thus with the rehabilitation of revenge to reinstate generally and collectively all the reactive emotions. I object to this last point least of all. It even seems meritorious when regarded from the standpoint of the whole problem of biology (from which standpoint the value of these emotions has up to the present been underestimated). And that to which I alone call attention, is the circumstance that it is the spirit of revenge itself, from which develops this new nuance of scientific equity (for the benefit of hate, envy, mistrust, jealousy, suspicion, rancour, revenge). This scientific "equity" stops immediately and makes way for the accents of deadly enmity and prejudice, so soon as another group of emotions comes on the scene, which in my opinion are of a much higher biological value than these reactions, and consequently have a paramount claim to the valuation and appreciation of science: I mean the really active emotions, such as personal and material ambition, and so forth. (E. Dühring, Value of Life; Course of Philosophy, and passim.) So much against this tendency in general: but as for the particular maxim of Dühring's, that the home of Justice is to be found in the sphere of the reactive feelings, our love of truth compels us drastically to invert his own proposition and to oppose to him

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The Encyclopedia Americana (1920)/Garfield, James Abram

GARFIELD, James Abram, 20th President of the United States: b. Orange, Cuyahoga County, Ohio, 19 Nov. 1831; d. Elberon, N. J., 19 Sept. 1881. On his father's side he was of English Puritan descent; on his mother's, Huguenot. The father, a native of New York, settled in the “Western Reserve” in 1830 and died in 1833, leaving his widow with four small children, James being the youngest. Garfield's boyhood was passed amid the harsh but by no means destitute conditions of frontier life. He worked hard on the farm, helped in the support of the family, attended school three months each winter and read and reread every book which fell in his way. For a short time he was a driver and steersman on the Ohio Canal. Supporting himself chiefly by teaching, he studied successively at Geauga Seminary 1849, Eclectic Institute, Hiram, Ohio (now Hiram College), 1851-54, and Williams College, Mass., entering the junior class in 1854 and graduating with high honors in 1856. Returning to Ohio, he taught the classics at Hiram Institute 1856-57, and became its president 1857-59. Coincident with his teaching he studied law, was admitted to the bar in 1859 and, resigning his presidency, was elected to the Ohio State senate. The Civil War breaking out, he threw himself enthusiastically into the Northern cause, was commissioned lieutenant-colonel of the 42d Ohio and given command of a brigade, with orders to operate as an independent force in eastern Kentucky, December 1861. With a force of 1,100 men and no artillery he signally defeated 5,000 Confederates under the veteran general Humphrey Marshall, driving them from fortified positions of their own choosing, 10 Jan. 1862. For this exploit Lincoln promoted him brigadier-general. Subsequently he took part in the battle of Shiloh, in the operations around Corinth, and served with distinction on several courts-martial at Washington, one being that of Gen. Fitz-John Porter (q.v.). Appointed chief of staff to General Rosecrans, February 1863, his notable services at Chickamauga (see ) caused Lincoln to make him a major-general, 19 Sept. 1863. In 1862 his home district had elected him to Congress. Thus, within six years he had been president of a college, State senator, major-general and representative-elect, a combination

of honors without parallel in the national annals. Upon the advice of Lincoln and Stanton he resigned his major-general's commission 5 Dec. 1863 and took his seat as a representative on December 7. In this field his talents and genius found their true sphere. He stepped to the front at once, taking a prominent part in every debate of importance and becoming an authority on questions of finance, tariff, education and constitutional rights. Always the champion of sound money, his speech in March 1866 clearly outlined the policy which resulted in the resumption of specie payments 1 Jan. 1879. An eminent contemporary has well said of Garfield's speeches, that they are a compendium of the political history of the time and would give a connected history and complete defense of the important legislation of the 17 eventful years that comprised his legislative career. He was eight times re-elected to Congress, serving on such important committees as those on military affairs and on ways and means, and was the first chairman of the Committee on Banking and Currency. In the Reconstruction period he steadily opposed the theories of President Johnson (see ); in 1876 he went to New Orleans at President Grant's request to watch the counting of the Louisiana vote, and in 1877 was chosen by acclamation one of the two members of the Electoral Commission allotted to the House of Representatives. In the 45th Congress Garfield displayed masterly qualities as a leader of opposition. His speech at Faneuil Hall, Boston, in 1878 on the national finances was circulated by thousands as a campaign document. On 13 Jan. 1880 the Ohio legislature unanimously elected him United States senator to succeed Hon. Allen G. Thurman (q.v.), and his last speech in Congress was delivered 23 April 1880. At the Republican National Convention at Chicago, 2-8 June 1880, he headed the Ohio delegation, nominated John Sherman (q.v.) for the Presidency, opposed the nomination of General Grant for a third term and was himself nominated on the 36th ballot as a compromise candidate. Contrary to all precedent, Garfield himself took part in the campaign that followed, making some 70 speeches in all, chiefly extemporaneous. At the November election he received 214 electoral votes to 155 given his Democratic opponent, General Hancock. The first months of Garfield's administration were disturbed by the opposition of the New York senators to certain of his appointments. Senators Conkling and Platt claimed the right to control the Presidential appointments in their State. This the President refused to concede. The senators resigned and appealed to their legislature to vindicate their attitude by a re-election, but failed to get it. On the morning of 2 July 1881, while in the Baltimore and Potomac station at Washington, on his way to New England, where he intended to deliver the commencement address at Williams College, President Garfield was shot by Charles Jules Guiteau (q.v.), a disappointed office-seeker. For weeks he lingered between life and death, suffering the greatest agony but bearing it with a magnificent fortitude that won the admiration and sympathy of the civilized world. A removal to Elberon, N. J., in the hope that the sea air

might benefit him was of no avail. Blood poisoning set in on 15 September and he died on the 19th at 10.30 P.M. In February 1882 an impressive memorial service was held in the House of Representatives, the Hon. James G. Blaine delivering a commemorative address, which for eloquence, dignity and truth has rarely been equaled on such occasions. Garfield's body lies in a beautiful cemetery in Cleveland, Ohio, a stately monument marking the spot. His life was the fullest realization of the opportunities of American citizenship. Rising from nothing, by his own exertions he won high places in various spheres and filled them all adequately and with dignity. His ‘Works’ have been edited by Prof. B. A. Hinsdale (Boston 1882-83). Consult Hinsdale, ‘President Garfield and Education’ (Boston 1882).

JAMES ABRAM GARFIELD

Twentieth President of the United States


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Rh in Tasmania is known as the Redbill. Terns and gannets were amongst the birds of the coastal waters. Of New Zealand terns, Sterna frontalis and S. nereis are the species which are seen most frequently. The 'goelette blanche' may have been Gygis Candida. The gannets may have been 'manches de velours—the name by which French mariners knew the Masked Gannet (Sula cyanops). The body of this gannet is white; the wings are rich chocolate brown. It is a bird of the tropical and sub-tropical seas of the world and its appearance in New Zealand waters is infrequent.

From New Zealand the two vessels, now under the command of Duclesmeur, sailed for Guam and thence to the Philippine Islands, but as Crozet's observations on the birds which he saw after he quitted New Zealand are of little importance, we will follow him no further.


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Rh it should be, in fact, the guide of state-government and the trusted basis of the development of human communities. That it is not so already, that men should still allow their energies to run in other directions, appears to some of us a thing so monstrous, so injurious to the prosperity, of our fellow men, that we must do what lies within our power to draw attention to the conditions and circumstances which attend this neglect, the evils arising from it, and the benefits which must follow from its abatement.

It is not unfitting that a son of Oxford should in the fullness of time place before his Alma Mater conclusions which he has formed on a matter of serious and far-reaching importance. Oxford has been said to be the home of lost causes. It is true that her hospitality and benevolence are such that she is the home both of causes which triumph and of causes which are defeated; but it may be more aptly said that it is her splendid distinction, when corrupting greed and glorified ignorance are so largely dominant in the national life, still to be the birth-place of high aspirations, still the shelter and sanctuary of noble ideals. I therefore, with confidence in the generosity of my audience, venture to lay before you what I have to say.

The signification attached to the word 'Nature' is by no means the same at the present day as it has been in the past: as commonly used it is a word of varied meanings and limitations, so that misconception and confusion is liable to be associated with it. By the professed student of modern sciences it is usually understood as a name for the entire mechanism of

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Rh this other maxim: the last sphere conquered by the spirit of justice is the sphere of the feeling of reaction! When it really comes about that the just man remains just even as regards his injurer (and not merely cold, moderate, reserved, indifferent: being just is always a positive state); when, in spite of the strong provocation of personal insult, contempt, and calumny, the lofty and clear objectivity of the just and judging eye (whose glance is as profound as it is gentle) is untroubled, why then we have a piece of perfection, a past master of the world—something, in fact, which it would not be wise to expect, and which should not at any rate be too easily believed. Speaking generally, there is no doubt but that even the justest individual only requires a little dose of hostility, malice, or innuendo to drive the blood into his brain and the fairness from it. The active man, the attacking, aggressive man is always a hundred degrees nearer to justice than the man who merely reacts; he certainly has no need to adopt the tactics, necessary in the case of the reacting man, of making false and biassed valuations of his object. It is, in point of fact, for this reason that the aggressive man has at all times enjoyed the stronger, bolder, more aristocratic, and also freer outlook, the better conscience. On the other hand, we already surmise who it really is that has on his conscience the invention of the "bad conscience,"—the resentful man! Finally, let man look at himself in history. In what sphere up to the present has the whole administration of law, the acutal need of law, found its earthly home? Perchance in the sphere of the reacting man? Not for a minute: rather in that of the active, strong, spontaneous, aggressive man? I deliberately defy the above-

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64 mentioned agitator (who himself makes this self-confession, "the creed of revenge has run through all my works and endeavours like the red thread of Justice"), and say, that judged historically law in the world represents the very war against the reactive feelings, the very war waged on those feelings by the powers of activity and aggression, which devote some of their strength to damming and keeping within bounds this effervescence of hysterical reactivity, and to forcing it to some compromise. Everywhere where justice is practised and justice is maintained, it is to be observed that the stronger power, when confronted with the weaker powers which are inferior to it (whether they be groups, or individuals), searches for weapons to put an end to the senseless fury of resentment, while it carries on its object, partly by taking the victim of resentment out of the clutches of revenge, partly by substituting for revenge a campaign of its own against the enemies of peace and order, partly by finding, suggesting, and occasionally enforcing settlements, partly by standardising certain equivalents for injuries, to which equivalents the element of resentment is henceforth finally referred. The most drastic measure, however, taken and effectuated by the supreme power, to combat the preponderance of the feelings of spite and vindictiveness—it takes this measure as soon as it is at all strong enough to do so—is the foundation of law, the imperative declaration of what in its eyes is to be regarded as just and lawful, and what unjust and unlawful: and while, after the foundation of law, the supreme power treats the aggressive and arbitrary acts of individuals, or of whole

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 Rh seemed to me as if I were directed in turn to all points of the compass; and I thought then, and have thought ever since, that there is something in the atmosphere of Hameln which tends to bewilderment and suggests enchantment. I sometimes felt there as if I were the victim of a spell; and maybe some tricksy Ariel was making me his sport. The fact that I and my companions spoke as barbarians had possibly something to do with the difficulties; then, too, certain of the people appealed to may have fancied we were in quest of the Klüt, the hill to which Pietsch led his followers on the festal day; and others may not have known—as at the outset I did not—that what is now called the Bassberg was, according to some, the mediaeval Koppen. Koppen is suggestive of heads, and Dr. Otto Meinardus, Royal Archivist at Berlin, who has bestowed much research on the records of his native Hameln, believes that the scene of the Disappearance was the two-headed Teutberg, which commands the Hildesheim and Hanover roads, and bars the end of the Weser valley, This would be a far cry for the little children; but the Bassberg is within a stroll from the town, and I have but little doubt that I meditated on its summit on the occasion of my third hunt at Hameln. I am not as easily convinced as were the writer and the illustrator of a pleasant paper in the Magazine of Art ; the hill was pointed out to them from a distance, they seem to have gone by instinct to the proper knoll, and (to quote) "we pitched at once on the spot where we felt sure the laughing children had disappeared; a huge wild rose-bush, glowing with scarlet hips, was growing there. It must have been a lovely sight of flowers some months before. We gathered a bunch of the scarlet fruit as a memory of our visit. There


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The Encyclopedia Americana (1920)/Garfield, James Rudolph

GARFIELD, James Rudolph, American government official, son of President James A. Garfield: b. Hiram, Ohio, 17 Oct. 1865. He was graduated at Williams College in 1885; studied at the Columbia Law School and in 1888 was admitted to the bar. In 1896-99 he was a member of the Ohio senate and in 1902-03 was a member of the United States Civil Service Commission. From 1903 to 1907 he was commissioner of corporations of the United States Department of Commerce and Labor and in 1907 became Secretary of the Interior in President Roosevelt's Cabinet. He retired from this post on 4 March 1909; during his term of office, he effected a complete reorganization of the department and instituted many land-office reforms. Since 1909 he has been engaged in law practice at Cleveland; in 1912 he was prominent in the councils of the new Progressive party.


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McDermott, Inc. v. Lewis

Charles F. Richards, Jr., Esquire, of Richards, Layton & Finger; Wilmington, Richard F. Nolan, Esquire (argued), and Dennis E. Glazer, Esquire, of Davis Polk & Wardwell, New York, of Counsel, for Appellant.

Norman M. Monhait, Esquire, of Morris & Rosenthal; Wilmington, Mordecai Rosenfeld, Esquire (argued), of Mordecai Rosenfeld, P.C., New York, and A. Arnold Gershon, Esquire, of A. Arnold Gershon, P.C., New York, Of Counsel, for Appellees.

Christie, Chief Justice, Horsey and Moore, Justices.

title: McDermott, Inc. v. Lewis


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McDermott, Inc. v. Lewis/Opinion of the Court

[p208] We confront an important issue of first impression -- whether a Delaware subsidiary of a Panamanian corporation may vote the shares it holds in its parent company under circumstances which are prohibited by Delaware law, but not the law of Panama. Necessarily, this involves questions [p209]  of foreign law, and applicability of the internal affairs doctrine under Delaware law.

Plaintiffs, Harry Lewis and Nina Altman, filed these consolidated suits in the Court of Chancery in December, 1982 seeking to enjoin or rescind the 1982 Reorganization under which McDermott Incorporated Click for Enhanced Coverage Linking Searches, a Delaware corporation ("McDermott Delaware"), became a 92%-owned subsidiary of McDermott International, Inc., a Panamanian corporation ("International"). Lewis and Altman are stockholders of McDermott Delaware, which emerged from the Reorganization owning approximately 10% of International's common stock. Plaintiffs challenged this aspect of the Reorganization, and the Court of Chancery granted partial summary judgment in their favor, holding that McDermott Delaware could not vote its stock in International.

We conclude that the trial court erred in refusing to apply the law of Panama to the internal affairs of International. There was no nexus between International and the State of Delaware. Moreover, plaintiffs concede that the issues here do not involve the internal affairs of McDermott Delaware. Thus, we decline to follow Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir. 1984), which prohibited a similar device involving a Panamanian subsidiary seeking to vote the shares it held in its Panamanian parent. Accordingly, we reverse. In so doing, we reaffirm the principle that the internal affairs doctrine is a major tenet of Delaware corporation law having important federal constitutional underpinnings.

I.
International was incorporated in Panama on August 11, 1959, and is principally engaged in providing worldwide marine construction services to the oil and gas industry. Its executive offices are in New Orleans, Louisiana, and there are no operations in Delaware. International does not maintain offices in Delaware, hold meetings or conduct business here, have agents or employees in Delaware, or have any assets here.

McDermott Delaware and its subsidiaries operate throughout the United States in three principal industry segments: marine construction services, power generation systems and equipment, and engineered materials. McDermott Delaware's principal offices are in New Orleans.

Following the 1982 Reorganization, McDermott Delaware became a 92%-owned subsidiary of International. The public stockholders of International hold approximately 90% of the voting power of International, while McDermott Delaware holds about 10%.

The stated "principal purpose" of the reorganization, according to International's prospectus, was to enable the McDermott Group to retain, reinvest and redeploy earnings from operations outside the United States without subjecting such earnings to United States income tax. The prospectus also admitted that the 10% voting interest given to McDermott Delaware would be voted by International, "and such voting power could be used to oppose an attempt by a third party to acquire control of International if the management of International believes such use of the voting power would be in the best interests of the stockholders of International." An exchange offer, and thus the Reorganization, was supported by 89.59% of McDermott Delaware stockholders.

The applicable Panamanian law is set forth in the record by affidavits and opinion letters of Ricardo A. Durling, Esquire, and the deans of two Panamanian law schools, to support the claim that McDermott Delaware's retention of a 10% interest in International, and its right to vote those shares, is permitted by the laws of Panama. Significantly, the plaintiffs have not offered any contrary evidence.

[p210] Mr. Durling, an expert on Panamanian corporate law, stated:

"7. Article 35 of Panamanian Cabinet Decree No. 247, dated July 16, 1970, which amended the General Corporation Click for Enhanced Coverage Linking Searches Law of Panama, added provisions which are applicable only to certain corporations incorporated under the laws of Panama. Article 35 states:"

"'Shares of a corporation owned by [an]other corporation in which the former corporation owns the majority of shares shall not be entitled to vote at Meetings of Shareholders nor shall be deemed as issued and outstanding shares for purposes of quorum.'"

"8. Article 37 of Panamanian Cabinet Decree No. 247 specifically limits the prohibition on voting contained in Article 35 to those corporations registered with the National Securities Commission of Panama or those corporations whose shares are sold to the public within Panama. Article 37 states:"

"'The provisions contained in the foregoing Articles 34, 35 and 36 shall be applicable to corporations registered in the National Securities Commission and those whose shares are sold on the market, even though such corporations do not offer their own shares to the public.'"

"Article 37 of Cabinet Decree No. 247 of 1970, as amended by cabinet Decree No. 30 of 1972."

"9. I have examined a Certificate issued by the National Securities Commission (of Panama) to the effect that International is not registered with that Commission, and have therefore ascertained that International is not registered with that Commission. Accordingly, the prohibition set forth in Article 35 of Cabinet Decree No. 247 does not apply to International unless its stock is sold on the market in Panama. No Panamanian corporation, except one whose shares are either (a) registered with the National Securities Commission or (b) sold on the Panama market, is subject to the limitations of Article 35 of Cabinet Decree No. 247."

"10. There is no general public policy of the Republic of Panama in favor of precluding Panamanian corporations from selling or issuing stock to their subsidiaries or precluding a subsidiary from voting any stock held of its Panamanian corporate parent, except for those corporations falling within the scope of Article 37. It is generally accepted by Panamanian counsel that, with the exceptions described above, subsidiaries may vote the stock held in their parent corporations."

"11. A recent opinion of the General Attorney of Panama, dated May 2, 1984, has interpreted the proviso of Article 37 relating to shares 'sold in the market,' to mean that if a corporation's shares are sold in a private manner in Panama to a number of persons not exceeding 10 per year, such shares will not be considered to have been 'sold in the market.' To the best of my knowledge, none of International's securities has been sold to primary or secondary purchasers in Panama."

"12. Based upon the foregoing, I am of the opinion that:"

 * (a) McDermott Delaware can lawfully vote its shares in International at any of International's shareholders meetings;

 * (b) the provisions contained in Section 17 of Panama's General Corporation law are not applicable to shares held by McDermott Delaware, one of International's subsidiaries; and

 * (c) the retention by McDermott Delaware of a 10% interest in the voting power of International pursuant to the reorganization is lawful under applicable Panama law.

Appendix to Appellant's Opening Brief at A-178 to A-181. (Emphasis added).

Bonifacio Diez Fernandez, Dean of the Law School of the Catholic University, agreed that McDermott Delaware could vote its shares of International stock:

"[p211] Regarding the second item of your consultation, the Corporation Law of Panama, Law 32 of February 26, 1927, does not contain any provision prohibiting a Panamanian corporation to vote the shares owned by another corporation in which the first corporation owns the majority of the shares."

"* * *"

"It is a principal of law that in matters of public law one can only do what is expressly allowed by the law; while in private law all acts not prohibited by law can be performed. This principal is acknowledged by Law 32 of 1927, numeral 11 Artile [sic] 19, when it states that the corporation may perform all types of legal businesses even if they are not contained in the objects of the corporation, specified in its Articles of Incorporation or its Amendments."

"I have already stated in the preceding paragraphs that Article 35 of Cabinet Decree No. 247 is not applicable to corporations in general, but only to those registered with the National Securities Commission and to those who sell their shares within the national territory, in accordance to the provisions of Article 37 of said Decree No. 247."

"Therefore, I am of the opinion that, in the absence of an expressed prohibition, a Panamanian corporation may vote the shares owned by another corporation in which the first owns the majority of shares."

Appendix to Appellant's Opening Brief at A-200 to A-201 (original) and A-206 to A-207 (English translation) (Emphasis added).

Finally, Dr. Edgardo Molina Mola, Dean of the Law School of the National University of Panama (Universidad de Panama), opined that McDermott Delaware could vote its International shares:

"In item 2 of your letter, you consult me if the corporation law of Panama forbids Panamanian corporations to vote the shares owned by another corporation in which the first owns the majority of shares."

"I have examined in detail the provisions of Law 32 of February 26, 1927 which regulates the formation of corporations in Panama, and have not found any expressed prohibition which may be applicable to the situation presented by you. I do find some provisions, as that of Article 15, which allow corporations to acquire their own shares, which may be kept or sold by the corporation, or redeemed by the agreement of the Board of Directors, pursuant to Article 16. The only prohibition I have found is that contained in Article 17, but the same refers to those cases when the corporation acquires its own shares of stock. In these cases, such shares cannot be directly or indirectly represented in the Stockholders meetings."

"* * *"

"Therefore, I must conclude that, in the absence of an express prohibition by the law, a Panamanian corporation may vote the shares owned by another corporation in which the first owns the majority of the shares."

Appendix to Appellant's Opening Brief at A-212 (original) and A-217 (English translation).

This evidence of Panamanian law is uncontroverted. Plaintiffs have offered no proof whatever on the subject. Instead, they rely on Norlin. By letter dated March 9, 1987, McDermott informed the Court of a postargument change in the facts relevant to this appeal. McDermott International has recently registered with the National Securities Commission of Panama, thereby making Article 35 of Panamanian Cabinet Decree No. 247 applicable to the company. Thus, McDermott Delaware cannot now vote its International shares. This change in circumstances technically renders the appeal moot. Normally, we decline to decide moot issues. Sannini v. Casscells, Del. Supr., 401 A.2d 927, 930 (1979). However, where the question is of public importance, and its impact on the law is real, this Court has recognized an exception to the above rule. ''Darby v. New Castle Gunning Bedford Educ. Ass'n.,'' Del. Supr., 336 A.2d 209, 209 n.1 (1975). [p212] See also Bailey v. State, Del. Supr., 525 A.2d 582, slip op. at 3-4 (1987) (Christie, C.J., for the Court en banc). Given the importance of this matter to Delaware corporation law, and the state in which it otherwise would be left, we are compelled to decide this case based on the facts presented to the trial court.

II.
We note at the outset that if International were incorporated either in Delaware or Louisiana, its stock could not be voted by a majority-owned subsidiary. 8 Del.C. § 160(c) ; La. Rev. Stat. Ann. § 12:75(G). No United States jurisdiction of which we are aware permits that practice.

Relying on Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir. 1984), the Court of Chancery concluded that Panama in effect would refrain from applying its laws under the facts of this case. On that basis, the trial court then concluded that since both Delaware and Louisiana law prohibit a majority-owned subsidiary from voting its parent's stock, the device was improper. We consider this an erroneous application of both Delaware and Panamanian law.

Our analysis requires a two-step inquiry. First, we must determine if Panamanian law, in the factual context addressed by the Court of Chancery, permits International to vote its own shares through the device of McDermott Delaware's ownership. If it does not, then the inquiry ends. However, if Panamanian law permits the practice, we must consider the multifaceted issues inherent in the application of the internal affairs doctrine.

A.
It is apparent that under limited circumstances the laws of Panama permit a subsidiary to vote the shares of its parent. Article 35 of Panamanian Cabinet Decree No. 247 of July 16, 1970, which is part of the General Corporation Law of Panama, restricts the exercise of voting rights on shares of certain Panamanian corporations, but Article 37 limits the scope of Article 35 to "corporations registered in the National Securities Commission [of Panama] and those whose shares are sold on the market . . ." Opinion of Ricardo A. Durling, supra p. 5. Based on the facts before the Court of Chancery, it is undisputed that International was not required to register, nor had it registered, with the National Securities Commission. Further, International's shares were not "sold on the market," as that term is defined by the Attorney General of Panama. Reading Articles 35 and 37 together, it is apparent that Article 35's prohibition did not apply to International.

B.
Plaintiffs argue that McDermott Delaware may not vote shares held in International, since Panama law does not expressly permit such corporate action. Further, they contend, and the Vice Chancellor ruled, that Article 37 simply provides "that where a Panama corporation's shares are not registered in Panama and not publicly [p213]  traded in Panama (i.e., such as the shares of International at bar) the laws of Panama will not be imposed on that corporation Click for Enhanced Coverage Linking Searches." According to plaintiffs, this means that Panama has "declined to assert its own jurisdiction and laws on Panamanian corporations that choose to limit their contact with Panama."

We cannot accept either of those propositions. The uncontroverted evidence clearly and unambiguously rejects the contention that Panamanian law prohibits all conduct not otherwise expressly permitted. All three legal experts agreed that McDermott Delaware could vote the shares it held in International. Further, Dean Fernandez specifically stated that it "is a principle of law that in matters of public law one can only do what is expressly allowed by the law; while in private law all acts not prohibited by law can be performed." This fully accords with basic principles of Delaware corporate law. Unocal Corp. v. Mesa Petroleum Co., Del. Supr., 493 A.2d 946, 957 (1985); See Providence and Worcester Co. v. Baker, Del. Supr., 378 A.2d 121, 123-24 (1977).

C.
We also reject plaintiffs' contention that Article 37 articulates Panama's intent to decline jurisdiction over corporations which are neither registered with the National Securities Commission nor sell shares on the Panamanian "market." Were this the intent of the Panamanian Cabinet Decree, the language of Article 37 would not expressly limit its applicability to Articles 34, 35 and 36.

While offering no proof on this point, plaintiffs cite Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir. 1984) for the proposition that:

"In this case, Panama apparently would refrain from applying its own law to the transactions under scrutiny, because appellant does not meet the criteria of Article 37, as interpreted by the General Attorney. In essence, Panama has made a determination that its interest in Norlin's affairs is insufficient to warrant the application of Panamanian law to this dispute."

744 F.2d at 264.

The Norlin decision, however, provides no rationale for this result, nor does it analyze the express limitation of applicability, contained in the opening clause of Article 37, to Articles 34, 35 and 36. Such analytical omissions materially undermine its persuasive effect. Moreover, the facts of Norlin are quite different from those here. Norlin Corp., confronted by a hostile takeover bid from Piezo Electric Products, Inc., transferred 828,395 shares of voting stock to its wholly-owned subsidiary. Both Norlin and the subsidiary were incorporated in Panama. Piezo alleged that the stock transfer violated, inter alia, Panama and New York law. Evidently applying a "cluster of significant contacts" theory, the Second Circuit, interpreting New York law, determined that an automatic application of the internal affairs doctrine was inappropriate:

"Norlin's contacts with the State of New York are far from insubstantial. The company's principal place of business is located within the state, and its board of directors meets here. The resolution approving the contested stock issuances were adopted in this state, and the company stock has been traded on the NYSE. Whether these contacts are sufficient for a New York court to apply New York law is in our view, a question that does not lend itself to a simple answer. We need not, however, grapple with it to resolve the present inquiry. The principals compelling a foreign state to apply foreign law come into play only when a legitimate and substantial interest of another state would thereby be served . . . . Conversely, when the interest of only one state are truly involved, the purported conflict is purely illusory. Thus, there is no reason why the law of the foreign state should not control. . .."

Norlin, 744 F.2d at 263-64 (citations omitted).

To buttress the application of a New York statute prohibiting the issuance of voting stock to a majority-owned subsidiary, [p214]  the Second Circuit concluded that Panama would refrain from applying its own law to the transaction. Id.

We decline to follow Norlin for several reasons. First, we reject the notion that Panamanian law is inapplicable on the basis of some factually unsupported theory of abstention. ''Cf. Hart v. General Motors Corp.,'' N.Y. App. Div., 129 A.D.2d 179, 517 N.Y.S.2d 490 (1987). Second, Norlin applies the law of New York because of the defendants' substantial contacts with that State. Third, Norlin neither cited nor distinguished the earlier contrary decision of Hausman v. Buckley, 299 F.2d 696 (2d Cir.), cert. denied, 369 U.S. 885, 8 L. Ed. 2d 286, 82 S.C.t. 1157 (1962), although both opinions were authored by the same member of the Court. Hausman holds that the right of shareholders to bring a derivative action on behalf of a corporation is determined by the laws of the state of its incorporation. The Second Circuit rejected an argument that New York courts would refuse to apply the internal affairs doctrine for reasons of public policy. Id. at 705. Significantly, Hausman recognized that the doctrine was "well established" and had been applied "repeatedly" to determine matters governing the relations of stockholders and corporations inter se. Id. at 702. The failure to even mention Hausman can only further undermine Norlin's persuasiveness.

Finally, Norlin arose in the context of a hostile takeover threat. The Norlin board issued over 800,000 shares of voting stock to a subsidiary, as the final step in a series of transactions designed to place 49% of the voting power in the friendly hands of the board of directors, and with the clear intention of thwarting any hostile bids for control of the company. In contrast, McDermott Delaware emerged from the Reorganization holding only 10% of International's voting power, and there is no serious suggestion that this circumstance, alone, would thwart a determined bidder.

Given the uncontroverted evidence of Panamanian law, establishing that a Panamanian corporation may place voting shares in a majority-owned subsidiary under the limited circumstances provided by Article 37, we turn to the fundamental issues presented by application of the internal affairs doctrine.

III
Internal corporate affairs involve those matters which are peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders. Edgar v. MITE Corp., 457 U.S. 624, 645, 102 S.C.t. 2629, 2642, 73 L. Ed. 2d 269 (1982). Restatement (Second) of Conflict of Laws § 313, Comment a (1971). It is essential to distinguish between acts which can be performed by both corporations and individuals, and those activities which are peculiar to the corporate entity.

Corporations and individuals alike enter into contracts, commit torts, and deal in personal and real property. Choice of law decisions relating to such corporate [p215]  activities are usually determined after consideration of the facts of each transaction. See Reese and Kaufman, The Law Governing Corporate Affairs: Choice of Law and the Impact of Full Faith and Credit, 58 Colum. L. Rev. 1118, 1121 (1958) (hereinafter "Reese and Kaufman"). In such cases, the choice of law determination often turns on whether the corporation had sufficient contacts with the forum state, in relation to the act or transaction in question, to satisfy the constitutional requirements of due process. The internal affairs doctrine has no applicability in these situations. Rather, this doctrine governs the choice of law determinations involving matters peculiar to corporations, that is, those activities concerning the relationships inter se of the corporation, its directors, officers and shareholders.

The internal affairs doctrine requires that the law of the state of incorporation should determine issues relating to internal corporate affairs. First Nat'l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 621, 103 S.C.t. 2591, 2597, 77 L. Ed. 2d 46 (1983). Under Delaware conflict of laws principles and the United States Constitution, there are appropriate circumstances which mandate application of this doctrine.

A.
Delaware's well established conflict of laws principles require that the laws of the jurisdiction of incorporation -- here the Republic of Panama -- govern this dispute involving McDermott International's voting rights. Beard v. Elster, Del.Supr., 39 Del. Ch. 153, 160 A.2d 731, 735 (1960); Elster v. American Airlines, Inc., Del. Ch., 34 Del. Ch. 94, 100 A.2d 219, 224-25 (1953); Ringling v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., Del. Ch., 29 Del. Ch. 318, 49 A.2d 603, 607 (1946), modified, Del. Supr., 29 Del.Ch. 610, 53 A.2d 441 (1947); Mau v. Montana Pacific Oil Co., Del. Ch., 16 Del. Ch. 114, 141 A. 828, 831 (1928); Bruch v. National Guarantee Credit Corp., Del. Ch., 13 Del. Ch. 180, 116 A. 738, 744 (1922).

The traditional conflicts rule developed by courts has been that internal corporate relationships are governed by the laws of the forum of incorporation. See Macey & Miller, Toward an Interest-Group Theory of Delaware Corporate Law, 65 Tex. L. Rev. 469, 495 (1987). As early as 1933, the Supreme Court of the United States noted:

"It has long been settled doctrine that a court - state or federal - sitting in one state -- will, as a general rule, decline to interfere with, or control by injunction or otherwise, the management of the internal affairs of a corporation organized under the laws of another state but will leave controversies as to such matters to the courts of the state of the domicile . . . .."

Rogers v. Guaranty Trust Co. of New York, 288 U.S. 123, 130, 53 S.C.t. 295, 297, 77 L. Ed. 652 (1933) (citations omitted).

However, in Western Air Lines, Inc. v. Sobieski, Cal. App., 191 Cal. App. 2d 399, 12 Cal. Rptr. 719 (1961), a California court upheld an order of the California Commissioner of Corporations directing a Delaware corporation having major contacts with California to follow the cumulative voting requirements imposed by California law. After the Western Air decision, commentators noted that the case signaled the alleged start of a "conflicts revolution." See Kozyris, Corporate Wars and Choice of Law, 1985 Duke L.J. 1 (hereinafter "Kozyris"); Kaplan, Foreign Corporations and Local Corporate Policy, 21 Vand. L. Rev. 433 (1968) (hereinafter "Kaplan"). The "new" conflicts theory weighs the interests and policies of the forum state in determining whether the law of the forum -- lex fori -- should be applied. See Restatement (Second) of Conflict of Laws, §§ 302-06, 309 (1971). Thus, the Western Air Lines [p216]  case "was to be the harbinger of a new conflicts approach in corporate law that would limit or perhaps discard the lex incorporationis." Kozyris, supra at 17.

A review of cases over the last twenty-six years, however, finds that in all but a few, the law of the state of incorporation was applied without any discussion. Id. at 17-18. In fact, twenty-six years after Western Air the following statement remains apt:

"The umbilical tie of the foreign corporation to the state of its charter is usually still religiously regarded as conclusive in determining the law to be applied in intracorporate disputes. The fundamental reexamination of the nature of conflict of laws over the past few years has virtually left foreign corporation matters remaining as a pocket of the past in a subject area which has otherwise been characterized by free inquiry, change and flux."

Kaplan, supra, at 464.

The policy underlying the internal affairs doctrine is an important one, and we decline to erode the principle:

"Under the prevailing conflicts practice, neither courts nor legislatures have maximized the imposition of local corporate policy on foreign corporations but have consistently applied the law of the state of incorporation to the entire gamut of internal corporate affairs. In many cases, this is a wise, practical, and equitable choice. It serves the vital need for a single, constant and equal law to avoid the fragmentation of continuing, interdependent internal relationships. The lex incorporationis, unlike the lex loci delicti, is not a rule based merely on the priori concept of territoriality and on the desirability of avoiding forum-shopping. It validates the autonomy of the parties in a subject where the underlying policy of the law is enabling. It facilitates planning and enhances predictability. In fields like torts, where the typical dispute involves two persons and a single or simple one-shot issue and where the common substantive policy is to spread the loss through compensation and insurance, the preference for forum law and the emphasis on the state interest in forum residents which are the common denominators of the new conflicts methodologies do not necessarily lead to unacceptable choices. By contrast, applying local internal affairs law to a foreign corporation just because it is amenable to process in the forum or because it has some local shareholders or some other local contact is apt to produce inequalities, intolerable confusion, and uncertainty, and intrude into the domain of other states that have a superior claim to regulate the same subject matter. . .."

Kozyris, supra at 98.

B.
Given the significance of these considerations, application of the internal affairs doctrine is not merely a principle of conflicts law. It is also one of serious constitutional proportions -- under due process, the commerce clause and the full faith and credit clause -- so that the law of one state governs the relationships of a corporation to its stockholders, directors and officers in matters of internal corporate governance. The alternatives present almost intolerable consequences to the corporate enterprise and its managers. With the existence of multistate and multinational organizations, directors and officers have a significant right, under the fourteenth amendment's due process clause, to know what law will be applied to their actions. [p217] Stockholders also have a right to know by what standards of accountability they may hold those managing the corporation's business and affairs. That is particularly so here, given the significant fact that in the McDermott Group reorganization, and after full disclosure, 89.59% of the total outstanding common shares of McDermott Delaware were tendered in the exchange offer. Compare Norlin. Thus, by an overwhelming choice those stockholders received shares in International, and thereby selected the laws of Panama to govern inter se the corporate relations between themselves, International, its directors, officers and agents. (See note 1, supra.) Such issues have been the subject of litigation and scholarly discussions for decades. However, an attitude has developed in some quarters which exalts local interests over more fundamental doctrines. We approach such teachings with reservations.

Under the commerce clause Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.C.t. 844, 847, 25 L. Ed. 2d 174 (1970), determined that a state may regulate interstate commerce indirectly, but emphasized that the burden placed upon interstate commerce may not be excessive in relation to the local interests served by the regulation. In Edgar v. MITE Corp., 457 U.S. 624, 102 S.C.t. 2629, 73 L. Ed. 2d 269 (1982), the Supreme Court ruled that under the commerce clause a state "has no interest in regulating the internal affairs of foreign corporations." Id. at 645-46, 102 S.C.t. at 2642. If that is so, then a court or state which attempts to displace the internal affairs doctrine carries a heavy burden to justify its actions.

The recent decision in CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 107 S.C.t. 1637, 95 L. Ed. 2d 67 (1987), (reversing 794 F.2d 250), seems to support this interpretation of MITE:

"This Court's recent Commerce Clause cases also have invalidated statutes that adversely may affect interstate commerce by subjecting activities to inconsistent regulations . . . The Indiana Act poses no such problem. So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one state. No principal of corporation law and practice is more firmly established than a State's authority to regulate domestic corporations, including the authority to define the voting rights of shareholders . . . This beneficial free market system depends at its core upon the fact that a corporation -- except in the rarest situations -- is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the state of its incorporation."

CTS Corp., 481 U.S. 69, 107 S.C.t. at 1649, 95 L. Ed. 2d 67 (citations omitted) (emphases added). Thus, we conclude that application of the internal affairs doctrine is mandated by constitutional principles, except in "the rarest situations."

[p218] In the early part of the twentieth century, the internal affairs doctrine was deemed to have constitutional support under the full faith and credit clause. See Broderick v. Rosner, 294 U.S. 629, 643, 55 S.C.t. 589, 593, 79 L. Ed. 1100 (1935); Converse v. Hamilton, 224 U.S. 243, 256-57, 32 S.C.t. 415, 418-19, 56 L. Ed. 749 (1912). However, in 1935 the Supreme Court developed a balancing test to be used when evaluating whether full faith and credit was applicable. Alaska Packers Ass'n. v. Industrial Accident Comm'n., 294 U.S. 532, 55 S.C.t. 518, 79 L. Ed. 1044 (1935). A party bringing a full faith and credit claim thereafter bore the burden of establishing that conflicting interests of a foreign state were superior to those of the forum state. Id. at 547, 55 S.C.t. at 523-24.

Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586, 67 S.C.t. 1355, 91 L. Ed. 1687 (1947) is the last Supreme Court decision which mandates application of the law of the state of organization to an entity's internal dealings under the full faith and credit clause. In Wolfe, the Supreme Court held that full faith and credit required that a dispute involving the internal affairs of a fraternal benefit society be governed by the laws of the state where the society was formed. Id. at 623-25, 67 S.C.t. at 1373-74. Although we recognize that there are lingering uncertainties concerning the vitality of Wolfe, we believe that full faith and credit commands application of the internal affairs doctrine except in the rare circumstance where national policy is outweighed by a significant interest of the forum state in the corporation and its shareholders. Reese and Kaufman, supra at 1141.

Addressing the facts originally presented to the trial court and to us, we must conclude that due process and the commerce clause, in addition to principles of Delaware conflicts law, mandate reversal. Due process requires that directors, officers and shareholders be given adequate notice of the jurisdiction whose laws will ultimately govern the corporation's internal affairs. Under such circumstances, application of 8 Del.C. § 160(c) to International would unfairly and, in our opinion, unconstitutionally, subject those intimately involved with the management of the corporation to the laws of Delaware.

Moreover, application of Section 160(c) to International would violate the commerce clause. Delaware and Panama law clearly differ in their treatment of a subsidiary's voting rights under the facts originally presented here. For Delaware now to interfere in the internal affairs of a foreign corporation having no relationship whatever to this State clearly implies that [p219]  International can be subjected to the differing laws of all fifty states on various matters respecting its internal affairs. Such a prohibitive burden has obvious commerce clause implications, and could not pass constitutional muster. The substantial effect that would impose on interstate commerce triggers the Pike v. Bruce Church, Inc. balancing test. Since a state has no interest in regulating the internal affairs of a foreign corporation under MITE, Delaware has nothing left with which to counterbalance the burden that application of Section 160(c) on International would impose on interstate commerce. Given all the circumstances, the trial court's ruling cannot stand.

IV.
Plaintiffs protest the issuance of voting stock to McDermott Delaware on public policy grounds, relying on the following statement from Norlin:

"[The] statutes seek to safeguard minority shareholders from management attempts at self-perpetuation. If cross-ownership and cross-voting of stock between parents and subsidiaries were unregulated, officers and directors could easily entrench themselves by exchanging a sufficient number of shares to block any challenge to their autonomy . . .."

744 F.2d at 262 (citation omitted).

In that regard, Delaware law prohibits cross-voting of stock by majority-owned subsidiaries of Delaware corporations. 8 Del.C. § 160(c). But here, we are called upon to apply the laws of Panama to a Panamanian corporation having no contacts with Delaware. We are not altering existing law governing Delaware corporations.

On the record before the Court of Chancery, we are not faced with some "Draconian" measure for the effectuation of a scheme designed solely to entrench existing management to the detriment of the corporation's shareholders. See Unocal Corp. v. Mesa Petroleum Co., Del. Supr., 493 A.2d 946, 955 (1985). The facts here do not support an entrenchment claim. The size of the voting interest placed in McDermott Delaware, its stated principal purpose being for tax advantages, and the timing of the transaction, all sustain this conclusion. In short, there was no threat of any kind which implicated the policies discussed by us in Unocal. Id. at 954-59. If such issues should arise in a takeover context, they can be addressed in a proper way and at the proper time. See Moran v. Household International, Inc., Del. Supr., 500 A.2d 1346, 1353 (1985).

In conclusion, the trial court erred as a matter of law in ignoring the uncontroverted Panamanian law, and in applying Delaware and/or Louisiana law to the internal affairs of International contrary to established Delaware law and important constitutional principles. Accordingly the judgment of the Court of Chancery is Reversed.


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Rh groups, as a violation of law, and a revolt against itself, it distracts the feelings of its subjects from the immediate injury inflicted by such a violation, and thus eventually attains the very opposite result to that always desired by revenge, which sees and recognises nothing but the standpoint of the injured party. From henceforth the eye becomes trained to a more and more impersonal valuation of the deed, even the eye of the injured party himself (though this is in the final stage of all, as has been previously remarked)—on this principle "right" and "wrong" first manifest themselves after the foundation of law (and not, as Duhring maintains, only after the act of violation). To talk of intrinsic right and intrinsic wrong is absolutely nonsensical; intrinsically, an injury, an oppression, an exploitation, an annihilation can be nothing wrong, inasmuch as life is essentially (that is, in its cardinal functions) something which functions by injuring, oppressing, exploiting, and annihilating, and is absolutely inconceivable without such a character. It is necessary to make an even more serious confession:—viewed from the most advanced biological standpoint, conditions of legality can be only exceptional conditions, in that they are partial restrictions of the real life-will, which makes for power, and in that they are subordinated to the life-will's general end as particular means, that is, as means to create larger units of strength. A legal organisation, conceived of as sovereign and universal, not as a weapon in a fight of complexes of power, but as a weapon against fighting, generally something after the style of Duhring's communistic model of treating every will as equal with every

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66 other will, would be a principle hostile to life, a destroyer and dissolver of man, an outrage on the future of man, a symptom of fatigue, a secret cut to Nothingness.—

12.

A word more on the origin and end of punishment—two problems which are or ought to be kept distinct, but which unfortunately are usually lumped into one. And what tactics have our moral genealogists employed up to the present in these cases? Their inveterate naivete. They find out some "end" in the punishment, for instance, revenge and deterrence, and then in all their innocence set this end at the beginning, as the causa fiendi of the punishment, and—they have done the trick. But the patching up of a history of the origin of law is the last use to which the "End in Law" ought to be put. Perhaps there is no more pregnant principle for any kind of history than the following, which, difficult though it is to master, should none the less be mastered in every detail.—The origin of the existence of a thing and its final utility, its practical application and incorporation in a system of ends, are toto caelo opposed to each other—everything, anything, which exists and which prevails anywhere, will always be put to new purposes by a force superior to itself, will be commandeered afresh, will be turned and transformed to new uses; all "happening" in the organic world consists of overpowering and dominating, and again all overpowering and domination is a new interpretation and adjustment, which must necessarily obscure or absolutely extinguish the subsisting "meaning" and "end."

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690 States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

Approved 6th March, 1820.

Whereas the Congress of the United States by various acts, purporting to be acts laying duties and imposts on foreign imports, but in reality intended for the protection of domestic manufactures, and the giving of bounties to classes and individuals engaged in particular employments, at the expense and to the injury and oppression of other classes and individuals, and by wholly exempting from taxation certain foreign commodities, such as are not produced or manufactured in the United States, to afford a pretext for imposing higher and excessive duties on articles similar to those intended to be protected, hath exceeded its just powers under the constitution, which confers on it no authority to afford such protection, and hath violated the true meaning and intent of the constitution, which provides for equality in imposing the burdens of taxation upon the several States and portions of the confederacy: And whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish, hath raised and collected unnecessary revenue for objects unauthorized by the constitution.

We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled "An act in alteration of the several acts imposing duties on imports," approved on the nineteenth day of May, one thousand eight hundred and twenty-eight, and also an act entitled "An act to alter and amend the several acts imposing duties on imports," approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.

And it is further ordained, that it shall not be lawful for any of the constituted authorities, whether of this State or of the United States, to enforce the payment of duties imposed by the said acts

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Rh The most perfect comprehension of the utility of any physiological organ (or also of a legal institution, social custom, political habit, form in art or in religious worship) does not for a minute imply any simultaneous comprehension of its origin: this may seem uncomfortable and unpalatable to the older men,—for it has been the immemorial belief that understanding the final cause or the utility of a thing, a form, an institution, means also understanding the reason for its origin: to give an example of this logic, the eye was made to see, the hand was made to grasp. So even punishment was conceived as invented with a view to punishing. But all ends and all utilities are only signs that a Will to Power has mastered a less powerful force, has impressed thereon out of its own self the meaning of a function; and the whole history of a "Thing," an organ, a custom, can on the same principle be regarded as a continuous "sign-chain" of perpetually new interpretations and adjustments, whose causes, so far from needing to have even a mutual connection, sometimes follow and alternate with each other absolutely haphazard. Similarly, the evolution of a "Thing," of a custom, is anything but its progressus to an end, still less a logical and direct progressus attained with the minimum expenditure of energy and cost: it is rather the succession of processes of subjugation, more or less profound, more or less mutually independent, which operate on the thing itself; it is, further, the resistance which in each case invariably displayed this subjugation, the Protean wriggles by way of defence and reaction, and,

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 Rh been multiplied by 130. (6) Fein believed that he unmasked fable when he maintained the slaughter of many sons of Hameln at the battle of Sedemünde (1259), and the carrying of others into captivity, to be the groundwork of the legend. He observed that on a sculptured house in the Papenstrasse the Piper was followed by youths bearing spears. Still, setting aside the fact that it is hardly likely the glory and fate of war would be reduced to anything as ignominious as the Koppen catastrophe, the two events were recorded as separate items in one of the municipal registers ; and the result of the fight was annually commemorated in the parish church of S. Nicholas and at the Bonifatiusstift on S. Pantaleon's Day. (7) Some authors give a mystical interpretation; Dr. Busch, for instance, regards the Piper as the Aryan death-god; and others talk of Dame Hulda, and see souls in the rats as well as in the children. (8) Our own countryman, Mr. Baring-Gould, writes: "The root of the myth is this: the Piper is no other than the wind, and the ancients held that in the wind were the souls of the dead." (9) I do not recollect whether those universal resolvents—Dawn and Darkness—have been called into requisition, but, if I myself were asked to give the mot d'énigme, I should say with confidence Bunting is an apt designation for the source of colour, and Kockerill, another name applied to him in story, suggests "the bird of dawning". We need not hesitate to recognise the sun in the pied musician, who banishes those nocturnal marauders, rats, and renders


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68 further, the results of successful counter-efforts. The form is fluid, but the meaning is even more so—even inside every individual organism the case is the same: with every genuine growth of the whole, the "function" of the individual organs becomes shifted,—in certain cases a partial perishing of these organs, a diminution of their numbers (for instance, through annihilation of the connecting members), can be a symptom of growing strength and perfection. What I mean is this: even partial loss of utility, decay, and degeneration, loss of function and purpose, in a word, death, appertain to the conditions of the genuine progressus; which always appears in the shape of a will and way to greater power, and is always realised at the expense of innumerable smaller powers. The magnitude of a "progress" is gauged by the greatness of the sacrifice that it requires: humanity as a mass sacrificed to the prosperity of the one stronger species of Man—that would be a progress. I emphasise all the more this cardinal characteristic of the historic method, for the reason that in its essence it runs counter to predominant instincts and prevailing taste, which must prefer to put up with absolute casualness, even with the mechanical senselessness of all phenomena, than with the theory of a power-will, in exhaustive play throughout all phenomena. The democratic idiosyncrasy against everything which rules and wishes to rule, the modern misarchism (to coin a bad word for a bad thing), has gradually but so thoroughly transformed itself into the guise of intellectualism, the most abstract intellectualism, that even nowadays it penetrates and has the right to penetrate step by step into the most exact and apparently the most objective sciences: this

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 236 minor heavenly bodies invisible by his brightness. It is on such lines that the story of Apollo Smintheus is interpreted.

But now let us turn from these ingenuities, and set ourselves to consider what claim the story of the Pied Piper may have to be received as an essentially true if not wholly unvarnished tale. How does it appear when we seek for a record of it in writings of the 13th century, in books which must have been penned before this more than nine-days' wonder had ceased to interest, and long ere wounds in Hameln hearts would heal? Martin Schoock, who essayed to demolish what he called the Fabula Hamelensis in 1659, assures us that no contemporary left note of the event, and gives us to understand that there was an ominous consensus of silence concerning it for some 250 years, until 16th century authors busied themselves to make it known. He delivers himself in Latin; but, being interpreted, he seems to say: "Under the Emperor Rudolf of Hapsburg, who began to reign A.D. 1272, lived the compiler of the Annales Colmariensium, who with his continuator reaches 1302; of all those whom I know, he is the most ignorant of the laws of history, and descends even to such poor matters as the details of the harvest and vintage, and of the sale of ripe strawberries, cherries, and pears in the June of 1283. Who would believe that an author relating such minutiæ would neglect a prodigy whose fame ought to have filled, if not all Europe at least all Germany? Also Werner Rolewinck a Laer, a Westphalian, a man deeply learned in the Scriptures, and in matters secular .... though living near Hameln and stopping at 1464, does not gather this flower, the exit of the children from that town, into his nosegay (Fasciculi Temporum). Like remark might be made of the author of the Magnum Chronicon Belgici, ending 1474, who revels in all kinds of historic trifles; of Trithenius, Abbot of Spanheim, who snatched from darkness whatever was worth remembering in his


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Rh tendency has, in fact, in my view already dominated the whole of physiology and biology, and to their detriment, as is obvious, in so far as it has spirited away a radical idea, the idea of true activity. The tyranny of this idiosyncrasy, however, results in the theory of "adaptation" being pushed forward into the van of the argument, exploited; adaptation—that means to say, a second-class activity, a mere capacity for "reacting"; in fact, life itself has been defined (by Herbert Spencer) as an increasingly effective internal adaptation to external circumstances. This definition, however, fails to realise the real essence of life, its will to power. It fails to appreciate the paramount superiority enjoyed by those plastic forces of spontaneity, aggression, and encroachment with their new interpretations and tendencies, to the operation of which adaptation is only a natural corollary: consequently the sovereign office of the highest functionaries in the organism itself (among which the life-will appears as an active and formative principle) is repudiated. One remembers Huxley's reproach to Spencer of his "administrative Nihilism": but it is a case of something much more than "administration."

13.

To return to our subject, namely punishment, we must make consequently a double distinction: first, the relatively permanent element, the custom, the act, the "drama," a certain rigid sequence of methods of procedure; on the other hand, the fluid element, the meaning, the end, the expectation which is attached to the

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 Rh Chronicon Hirsangiense ending 1370, and Spanheiniense ending with 1502; of Hartmann Schedel, author of the Nuremburg Chronicle, down to 1492; Nauclerus, Chancellor of the University of Tubingen, whose record goes through several generations to 1500: and of Albert Crantz, author of a Saxon history reaching to 1520. Even Paulus Langius, though there be rare things in his chronicle, which ends in 1515, omits this story, nor is there a trace of it in Johannes Aventinium. Hence we are of opinion," adds Schoock, "that this affair is an invention of superstition and monkish ignorance."

Well, possibly it may be all this; but I cannot myself allow that an alleged event of medieval times ought to be stamped out of credence, merely because it was not chronicled by certain contemporary scribes, whose works we happen to know, but of whose idiosyncrasies, disabilities, motives, and scope we cannot adequately judge. A case in point is the following: I confess I began to sympathise with the incredulity of Schoock when I learnt from Sprenger that John de Polde or Pohle takes no notice of the Outgoing in his Chronicon Hamelense, for he worked at it as an aged man in 1384, and if he came of native stock, his own father may have been in peril from the Piper, may have been the very babe who kept the nursemaid back from joining in the rout. This consideration loses cogency when we know the limit of the undertaking. Meinardus tells us that we ought not to wonder at Pohle's silence, because he was merely engaged on a history of the Collegiate Church at Hameln, of which he was a canon, and that he did not meddle with municipal matters or speak of political events. Let us give the good man credit for minding his own business, and acknowledge that he had nothing to do with ours. We should remember, too, that although the narrative in which we are


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 238 interested did not engage the pens of the aforesaid writers, it may nevertheless have put in motion those of other scribes whose parchments have been less successful in the war with Time. When we reflect how strangely rare copies of whole editions of comparatively modern books have grown, we ought not to find it difficult to realise that hundreds of unique MSS. would utterly pass out of being through fire, water, and violence in the blustrous Middle Ages. With them would perish the sole record of some episodes which our after-times have never heard of, and likewise the only documentary evidence of others that, until the invention of printing, would be handed on to later ages by tradition. It is with these latter that I would have you class the Hameln story, if I should fail to show there is reason for thinking that its preservation was never for long, if indeed at all, confided to the popular memory alone.

From the 16th century, when men's minds were roused into fertility by great religious agitation and by the impulse of the new learning, and when the fresh faculty of multiplying copies had encouraged the making of books and lessened their chance of extermination, we have abundant testimony that concerns us. The earliest I can quote is that of Fincelius, a Doctor of Medicine, who—to translate the quaint German of his Wunderzeichen (1556). says: "Of the Devil's power and wickedness will I here tell a true history. About 180 years ago, on S. Mary Magdalene's Day, it came to pass at Hammel on the Weser in Saxony, that the Devil went about the streets visibly in human form, piped and allured many children, boys and girls, and led them through the town-gate towards a mountain. When he arrived there he disappeared with the numerous children who had followed him, and nobody knew what became of the children. Thus did a girl who had followed them afar report to her parents, and thereupon diligent search and inquiry was soon made over


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70 of such procedure. At this point we immediately assume, per analogiam (in accordance with the theory of the historic method, which we have elaborated above), that the procedure itself is something older and earlier than its utilisation in punishment, that this utilisation was introduced and interpreted into the procedure (which had existed for a long time, but whose employment had another meaning), in short, that the case is different from that hitherto supposed by our naïf genealogists of morals and of law, who thought that the procedure was invented for the purpose of punishment, in the same way that the hand had been previously thought to have been invented for the purpose of grasping. With regard to the other element in punishment, its fluid element, its meaning, the idea of punishment in a very late stage of civilisation (for instance, contemporary Europe) is not content with manifesting merely one meaning, but manifests a whole synthesis "of meanings." The past general history of punishment, the history of its employment for the most diverse ends, crystallises eventually into a kind of unity, which is difficult to analyse into its parts, and which, it is necessary to emphasise, absolutely defies definition. (It is nowadays impossible to say definitely the precise reason for punishment: all ideas, in which a whole process is promiscuously comprehended, elude definition; it is only that which has no history, which can be defined.) At an earlier stage, on the contrary, that synthesis of meanings appears much less rigid and much more elastic; we can realise how in each individual case the elements of the synthesis change their value and their position, so that now one element and now another stands out and

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The Encyclopedia Americana (1920)/Siebengebirge

SIEBENGEBIRGE, zē'bĕn-gĕ-bēr'gė (Seven Mountains), Germany, a small chain of mountains near the Rhine, in Rhenish Prussia, 20 miles above Cologne. Above the main range rise seven lofty summits, whence the name. These rugged heights are all crowned with ruins of ancient lordly castles of the 12th century. Ölberg is the highest peak (1,522 feet); while the ../Drachenfels/ (q.v.) is the more interesting. Cologne Cathedral was built from stones quarried in these Rhenish Mountains. Some of the peaks are ascended by specially built railways. The scenery is romantic and interesting.


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Rh over the others, nay, in certain cases one element (perhaps the end of deterrence) seems to eliminate all the rest. At any rate, so as to give some idea of the uncertain, supplementary, and accidental nature of the meaning of punishment and of the manner in which one identical procedure can be employed and adapted for the most diametrically opposed objects, I will at this point give a scheme that has suggested itself to me, a scheme itself based on comparatively small and accidental material.—Punishment, as rendering the criminal harmless and incapable of further injury.—Punishment, as compensation for the injury sustained by the injured party, in any form whatsoever (including the form of sentimental compensation).—Punishment, as an isolation of that which disturbs the equilibrium, so as to prevent the further spreading of the disturbance.—Punishment as a means of inspiring fear of those who determine and execute the punishment.—Punishment as a kind of compensation for advantages which the wrong-doer has up to that time enjoyed (for example, when he is utilised as a slave in the mines).—Punishment, as the elimination of an element of decay (sometimes of a whole branch, as according to the Chinese laws, consequently as a means to the purification of the race, or the preservation of a social type).—Punishment as a festival, as the violent oppression and humiliation of an enemy that has at last been subdued.—Punishment as a mnemonic, whether for him who suffers the punishment—the so-called "correction," or for the witnesses of its administration.—Punishment, as the payment of a fee stipulated for by the power which protects the evil-doer from the excesses of revenge.—

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 Rh land and water to find out whether the children had possibly been stolen and led away. But nobody could tell what had become of the children. This grieved the parents terribly, and is a fearful example of divine anger against sin. This is all written in the town-book of Hammel, where many persons of high standing have read and heard it."

"Written in the town-book of Hammel", he says, and so say not only Hondorff (1568), who took Fincelius on trust, and later men who nourished themselves on Hondorff; but the assertion is confirmed by Wier, who visited Hameln in 1567, and seems to have made personal examination of all the evidence it could adduce in support of its fame. He had published his book on the "Delusions of Devils", De Præstigiis Dæmonorum, in 1563, the second edition in the following year, but showed no sign of knowing anything of that "modern instance", the Pied Piper. He had heard of it, however, before a third issue of his work was ready at Basle in 1566, and he made it the subject of a short paragraph. A few months later, he sought the locus in quo, and became as enthusiastic a believer as even I could wish in the authenticity of all that he was shown and told. The 4th edition of De Præstigiis, which came out in 1577, gives token of this: after repeating the narrative, he says in Latin, what amounts in English to: "These facts are thus written in the annals of Hammel and are religiously guarded in the archives; they are to be read also in the sacred books of the Church, and to be seen in the painted panes of the same; of which fact I am an eye witness. Besides, as confirmation of the story, the older


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72 Punishment, as a compromise with the natural phenomenon of revenge, in so far as revenge is still maintained and claimed as a privilege by the stronger races.—Punishment as a declaration and measure of war against an enemy of peace, of law, of order, of authority, who is fought by society with the weapons which war provides, as a spirit dangerous to the community, as a breaker of the contract on which the community is based, as a rebel, a traitor, and a breaker of the peace.

14.

This list is certainly not complete; it is obvious that punishment is overloaded with utilities of all kinds. This makes it all the more permissible to eliminate one supposed utility, which passes, at any rate in the popular mind, for its most essential utility, and which is just what even now provides the strongest support for that faith in punishment which is nowadays for many reasons tottering. Punishment is supposed to have the value of exciting in the guilty the consciousness of guilt; in punishment is sought the proper instrumentum of that psychic reaction which becomes known as a "bad conscience," "remorse." But this theory is even, from the point of view of the present, a violation of reality and psychology: and how much more so is the case when we have to deal with the longest period of man's history, his primitive history! Genuine remorse is certainly extremely rare among wrongdoers and the victims of punishment; prisons and houses of correction are not the soil on which this worm of remorse pullulates for choice—this is the unanimous opinion

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