text:
Planters' Bank of Mississippi v. Sharp/Dissent Daniel

Mr. Justice DANIEL.

Differing from the majority of the court in the decision just pronounced, I might, nevertheless, have been disposed to acquiesce in that decision, had it related to questions merely of property or of individual interests; but embracing as it does a construction of the Constitution, and annulling at the same time a legislative act of a sovereign State, I cannot feel warranted in yielding by silence a seeming approbation of conclusions which my judgment entirely repels. My deliberate opinion, then, is, that the statute of Mississippi of February 21st, 1840, by its seventeenth section, comes not in conflict with the tenth section of the first article of the Constitution; that it in no wise impairs the obligation of any contract between the State and the Mississippi Railroad Company, formed by grant of the charter of that company, nor as existing with the plaintiffs in error as claiming under them. An elaborate review of the arguments on which the pretensions of the plaintiffs in error are urged is not here deemed necessary, nor will I enter much in detail upon the reasons by which those arguments appear to be met and overthrown, but will content myself with succinctly stating the decisive conclusions of my own mind upon the only question properly presented by this record, and the legal grounds on which those conclusions are bottomed. The rights of the plaintiffs in error, whatever they may be, it must be borne in mind, are derived from the charter of the Mississippi Railroad Company, or from that of the Planters' Bank of Mississippi, as supposed to possess rights and powers more comprehensive than those vested in the former company; but from whichsoever of those companies the plaintiffs in error may choose to deduce their rights, these must be restricted to the rights and authority vested in the source from which they are drawn. Both the Mississippi Railroad Company and the Planters' Bank of Mississippi are corporations created by statute, deriving their existence and every power and attribute they ever possessed from the laws which gave them existence, and from these only. The doctrine has been long and repeatedly affirmed by this court, that, in interpreting the powers and rights of corporations, an essential distinction must be taken between corporations existing by the common law (often, nay, necessarily, traceable to a remote and obscure antiquity), and those which are created by statute, whose constitutions and powers are defined and ascertained by accessible and visible proofs. Into the composition or practices of the former, tradition, implication, or usage may enter, and thus give room for assumptions of power; with respect to the latter, no such rule, or rather misrule, has obtained or been permitted, especially by the settled decisions of this day. The adjudications of this court, as has been already stated, are too explicit to admit of doubt on this subject. Thus, in the case of Head and Amory v. The Providence Insurance Co., 2 Cranch, 127, Chief Justice Marshall says,-'Without ascribing to this body (the Insurance Company), which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating act has made it; to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes. To this source of its being, then, we must recur, to ascertain its powers, and to determine whether it can complete a contract by such communications as are in this record.'

In the case of Dartmouth College v. Woodward, 4 Wheat. 636, it is said by the court, that 'a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.' In the case of The Bank v. Dandridge, 12 Wheat. 64, this court said, 'Whatever may be the implied powers of aggregate corporations at the common law, and the modes by which those powers are to be carried into operation, corporations created by statute must depend, both for their powers and the mode of exercising them, upon the true construction of the statute itself.' In the case of The Bank of Augusta v. Earle, 13 Peters, 587, the several authorities just mentioned are cited in the opinion of the court; all of them approved, and none of them, it is presumed, will be questioned as not laying down the law with perfect accuracy.

Such being the well-settled rule of this court with respect to statutory corporations, let us inquire into its operation on the case before us. Neither by the charter granted to the Mississippi Railroad Company, or to the Planters' Bank of Mississippi, nor to any other banking corporation within the State, was the power ever directly given to assign bonds, bills, or promissory notes. Is this power necessarily implied in any of the express grants contained in the charters now under consideration? It is admitted on all sides that the clause in this charter of the Planters' Bank which authorizes the bank to discount bills of exchange and notes, and to make loans, contains no such direct grant; but it is said that the bank is authorized to possess and receive lands, rents, tenements, hereditaments, goods, chattels, and effects, to a certain amount, and to grant, demise, alien, or dispose of the same for the good of the bank; and that this authority confers thd power of assigning notes discounted by the corporation. Could the doctrine of implied powers, in contravention of the express decisions of this court just cited, be extended in its utmost latitude to these statutory corporations, still it would seem difficult, even by the greatest violence of construction, to torture the language of this charter into an expression of the meaning here ascribed to it. The right to acquire and to dispose of effects cannot, by the natural import of language, nor by any received intendment, be made to signify the power to discount bills and notes; much less can it be interpreted to mean the power to transfer bills and notes discounted, or securities of any description, and beyond this even, the power (in opposition to the principles of the common law in reference to choses in action) of investing the assignee with the right of maintaining an action at law in his own name. The extravagance of the construction contended for on behalf of the plaintiffs may be seen by bringing it to another test. Let it be supposed that the charters of these companies contained not one word about rights and powers of banking, as then permitted to other corporations in the State of Mississippi; suppose, too, they had been silent as to any right to discount bills and notes, and had been limited to the simple power of receiving and possessing goods, chattels, and effects, and of disposing of such effects for the good of the bank; would it be pretended that, under this latter provision, the power of discounting bills or notes, or of discounting at all, was given by the mere import of the word effects,-that the power of receiving and disposing of effects meant the power of discounting bills and notes? This can hardly be pretended. If, then, this term be not synonymous with the words bills and notes when taken in connection with the power of discounting and of making loans, how can it become so by being connected with the right of acquisition and enjoyment, or with the jus disponendi? The power to sell or assign discounted notes cannot be deduced from the clause in the charter which authorizes the exercise of the usual banking powers granted to the banks of Mississippi, first, because in no charter granted by the State is it shown that such a right is expressly conferred; secondly, it is manifest that a traffic in the sale of its own paper, or in notes or bills discounted, is conformable neither with the regular functions of a bank, nor reconcilable with the purposes of its institution. Banks are usually created for the purpose of making loans, and this in a medium, in theory at least, equal to money; not for the purpose of borrowing, or of raising means to eke out their daily existence by selling off their securities or their own paper. Their establishment rests upon the idea of their possessing funds of their own as the foundation of their credit and of their circulation. The practice of becoming brokers for the sale of their own paper or the paper of their customers, to put themselves in funds, is not, therefore, one of their regular functions, and can flow only from an abuse of these functions, and is a perversion of the legitimate ends of their creation. So, too, it is entirely inadmissible to place this practice of brokerage by the bank upon the mere absence of an inhibition in the charter; such a mode of reasoning cuts up entirely the admission, that the banks have no power except such as is expressly granted or necessarily implied. The fallacy of the idea, that the right to dispose of effects conferred by the charter of the Planters' Bank implied the right of an habitual and unrestricted sale or brokerage of discounted notes, is exposed by adverting to another provision of the charter, by which the amount of effects of every kind which the bank was permitted to acquire and dispose of was positively limited to a specified amount. The power of the bank being thus restricted, that power could by no sound reasoning be made coincident or coextensive with regular and permanent operations on the part of this corporation; for if its banking powers were deducible from such a limited privilege, or were dependent upon it, of course, when this permitted limit should be attained, the operations of the bank would be at an end. It is clear, therefore, that these corporations, restricted as are all statutory corporations under the decisions of this court, to the express grants contained in their charters, and to implications necessary to and inseparable from those grants, never were by the provisions of their charters invested with the power to assign bills or notes, and much less by such assignment to invest their assignee with the right of suing at law; that whatever power of assignment these corporations at any time may have possessed, and whatever the effect implied in such assignment, both were conferred upon them in common with all other persons, natural or artificial, within the State, by a general public law, subject at all times to modification or repeal by the authority which enacted it. Vid. section 12 of the statute, Howard and Hutchinson's Laws of Mississippi, p. 373.

The actual repeal of such a statute cannot correctly be regarded as the violation of any vested right, or the impairing of the obligation of a contract, for no one can claim to have a perfect and vested right, through all future time, in the mere capacity to do an act, from the absence of a law forbidding that act. A pretension like this would forestall and prevent legislation upon every subject. A wholly different state of things would have existed had the assignment to the plaintiffs been made anterior to the repeal of the statute, for then the rights of these parties would have been vested and complete; but the assignment was in this instance subsequent, by more than a year, to the passage of the repealing statute, was a new and separate contract, and entered into with necessary knowledge of its provisions, and made apparently in defiance thereof. This view of the question is clearly and forcibly presented by the Supreme Court of Louisiana, in the case of Hyde and another v. The Planters' Bank of Mississippi, 8 Robinson, 416, a case arising upon the laws and charters now under consideration, and in all its features essentially, nay, mutato nomine, literally, the same with the present. It has been said, that, in the case from 8 Robinson, the note was made after the enactment of the repealing statute. I think that this statement is not warranted by the statement of facts in that case. Certainly the reasoning of the court rests on no such hypothesis, for it covers the whole of the language and policy of the statute of Mississippi, and vindicates them to the utmost extent. In this case, the note was assigned after the enactment of the repealing law, and with full knowledge thereof, and the assignment was an independent and posterior contract which the law had forbidden. The question, then, as to the validity of the statute of Mississippi seems to resolve itself into this inquiry,-whether a sovereign State of this Union possesses the right within her own territory to regulate the formation of contracts, to define the rights and interests such contracts shall give to the parties thereto, and to declare the modes and extent in and to which these may be enforced by her own tribunals. To such an inquiry I can give none but an affirmative answer; and any other, I feel assured, is not evoked either by the language or spirit of the Federal Constitution, and would be highly unjust and inconvenient with respect to the States.

With regard to the plaintiffs in error, no injustice nor hardship of any kind is perceived in enforcing against them the provisions of the statute of 1840. In the first place, they have, with full knowledge of the law, placed themselves directly in the attitude of resistance thereto; for they have entered into an agreement explicitly inhibited upon grounds of public policy, and this long after such inhibition was proclaimed to every person within the State. In the next place, there surely can be no merit in a combination, the effects and manifest purposes of which were to deny to the holders of the notes of these banking corporations the power of making payment to them in their own currency, and to enable the latter to seize or to appropriate to themselves or their favorites the substance of those very note-holders to whom such right of payment was denied. A proceeding thus subversive of justice has not been heretofore sanctioned by this court, and in one instance has been, to a certain extent,-indeed, as I think, to the whole length of the present case,-directly condemned. The case of the United States v. Robertson, 5 Peters, 641, was a case in which a judgment had been recovered by the United States against the Bank of Somerset for an amount of money which had been deposited by a collector in that bank. By an act of Congress of the year 1818, it was provided, that, in any suit thereafter instituted by the United States against any corporate body for the recovery of money upon any bill, note, or other security, it should be lawful to summon as garnishees the debtors of such corporation, who were required to state on oath the amount in which they stood indebted at the time of serving such summons, for which amount judgment should be entered in favor of the United States, in the same manner as if it had been due and owing to the United States. On the 9th of February, 1819, a year after the act of Congress giving the remedy by attachment to the United States, the legislature of Maryland passed an act declaring that, in payment of any debt due to or judgment obtained by a bank within that State, the notes of such bank should be received. Attachments were laid in behalf of the United States, after their judgment against the Bank of Somerset, on debts in the hands of various debtors to the bank, and on some of these attachments judgments had been obtained. It was contended in behalf of these garnishees, that they had a right to discharge their debts in the notes of the Bank of Somerset, as well in those cases in which judgment had been obtained on attachment by the United States as in those wherein there were no judgments. Upon this question Chief Justice Marshall, in delivering the opinion of the court (p. 659), remarks, first, upon the act of Congress of 1818, 'That it operates a transfer from the bank to the United States of those debts which might be due from the persons who should be summoned as garnishees. They become, by the service of the summons, debtors of the United States, and cease to be debtors of the bank. But they owed to the United States precisely what they owed to the bank, and no more'; 2. 'That the act of the legislature of Maryland of 1819, so far as respects debts on which judgments have not been obtained, embodies the general and just principles respecting effects, which are of common application. Every debtor may pay his creditor with the notes of that creditor. They are an equitable and legal tender. So far as these notes were in possession of the debtor at the time he was summoned as garnishee, they form a counter claim, which diminishes the debt due to the bank to the extent of that counter claim. But the residue becomes a debt to the United States, for which judgment is to be rendered. May this judgment be discharged by the paper of the bank? On this subject the court are divided. Three of the judges are of opinion, that, by the nature of the contract, and by the operation of the act of Maryland upon it, an original right existed to discharge the debt in the notes of the bank, which original right remains in full force against the United States, who come in as assignees in law, and not in fact, and who must therefore stand in the place of the bank. Three of the judges are of opinion, that the right to pay the debt in the notes of the bank does not enter into the contract.' May not this decision, I inquire, be considered as substantially covering the whole ground of the case before us? For, after stating that the garnishees became by the service of the summons the debtors of the United States, and ceased to be the debtors of the bank, it goes on to declare, that they owed to the United States what they owed the bank, and nothing more; that, by the just and general principles of set-off, every debtor may pay his creditor with the notes of that creditor, which as to him are an equitable and legal tender. And by the unanimous declaration of the court, not until after the claim against the garnishee was carried into a judgment, and after the allowance of all rights of tender and set-off in the notes of the bank, could payment be coerced from him in any other medium than the notes of the bank. On half the court deemed the garnishee, even after judgment, entitled to the same privileges against the creditor of the bank which he possessed against the bank itself. This right, as between note-holders and the assignees of a failing or insolvent bank, is fully sustained by the Court of Appeals of Maryland in the case of The Union Bank of Tennessee v. Ellicot, Morris, & Gill, 6 Gill & Johns. 364, and in that of The Bank of Maryland v. Ruff, 7 ib. 448, in which last case the authority of this court is relied on. But, at all events, the principles of these decisions are broad enough to vindicate the legislation of Mississippi, and the objects of that legislation, against the imputation of oppression or hardship as respects these plaintiffs, and all who may occupy a similar position, if legislation can need vindication or apology, the purposes of which are to prevent, if possible, the paper of these corporations, spread over the community by them, from utterly perishing on the hands of the note-holder, and to disappoint dishonest combinations to set the public laws at defiance, and, further, to oppress and ruin the note-holder by taking his property, and leaving him the worthless and false and simulated representatives of an equivalent. I am of the opinion, that the judgment of the Supreme Court of Mississippi should in both these cases be affirmed.

This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said High Court of Errors and Appeals in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said court, to be proceeded with in conformity to the opinion of this court, and as to law and justice shall appertain.


text:
Encrypted message to John Pemberton, 1863-07-04

Ciphertext
SEAN WIEUIIUZH DTG CNP LBNEncoding error, should be 'H'. [sic]XGK OZ BJQB FEQT FEQTEncoding error, duplicate word. [sic] XZBW JJOY TK FHR TPZWK PVEncoding error, should be 'B'. [sic]U RYSQ VOWEncoding error, should be 'U' [sic]PZXGG OEPH BEncoding error, should be 'C' [sic]K WEncoding error, should be 'U' [sic]ASFKIPW PLVO JKEncoding error, should be 'I' [sic]Z HMN NVAEUD XYF DWEncoding error, should be 'U' [sic]RJ BOVPA SF MLV FYYRDE LVPL MFYSIN XY FQEO NPK M OBPC FYXJFHOHT AS ETOV B OCAJOEncoding error, should be 'D' [sic]SVQU M ZTZV TPIEncoding error, should be 'H' [sic]Y DAWEncoding error, should be 'U' [sic] FQTI WEncoding error, should be 'U' [sic]TTJ J DOGOAIA FLWHTXTI QMEncoding error, should be 'L' [sic]TR SEA LVLFLXFO.

Key
The key is "MANCHESTERBLUFF", repeated until the end of the message.

Cleartext
GENL PEMBERTON YOU CAN EXPECT NO HELP FROM THIS SIDE OF THE RIVER LET GENL JOHNSTON KNOW IF POSSIBLE WHEN YOU CAN ATTACK THE SAME POINT ON THE ENEMYS LINE INFORM ME ALSO AND I WILL ENDEAVOUR TO MAKE A DIVERSION I HAVE SENT SOME CAPS I SUBJOIN DESPATCH FROM GEN JOHNSTON.

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


text:
West River Bridge Company v. Dix/Separate McLean

Mr. Justice McLEAN.

As this is a constitutional question of considerable practical importance, I will state, succinctly, my general views on the subject.

The West River Bridge, under the statutes of Vermont, was appropriated to public purposes. And it is alleged that the charter under which the bridge was built and possessed by such appropriation was impaired. Our inquiry is limited to this point. For whatever injury the proceedings may have done to the interests of the corporation, unless its contract with the State was impaired, we have no jurisdiction of the case.

The power in a State to take private property for public use is undoubted. It is an incident to sovereignty, and its exercise is often essential to advance the public interests. This act is done under the regulations of the State. If those regulations have not been strictly observed, that is not a matter of inquiry for this court. The local tribunals have the exclusive power in such cases.

This act by a State has never been held to impair the obligations of the contract by which the property appropriated was held. The power acts upon the property, and not on the contract. A State cannot annul or modify a grant of land fairly made. But it may take the land for public use. This is done by making compensation for the property taken, as provided by law. But if it be an appropriation of property to public use, it cannot be held to impair the obligations of the contract.

It is insisted, that this was a pretended exercise of the power of the eminent domain, with the view of destroying the force and obligation of the plaintiffs' charter.

This whole proceeding was under a standing law of the State, and it was sanctioned, on an appeal, by the Supreme Court of the State. A procedure thus authorized by law, and sanctioned, cannot be lightly regarded. It has all the solemnities of a sovereign act.

But it is said that the franchise of the plaintiff cannot be denominated property; that 'it included the grant of no property real or personal; that it lay in grant, and not in livery.'

If the action of the State had been upon the franchise only, this objection would be unanswerable. The State cannot modify or repeal a charter for a bridge, a turnpike-road, or a bank, or any other private charter, unless the power to do so has been reserved in the original grant. But no one doubts the power of the State to take a banking-house for public use, or any other real or personal property owned by the bank. In this respect, a corporation holds property subject to the eminent domain, the same as citizens. The great object of an act of incorporation is, to enable a body of men to exercise the faculties of an individual. Peculiar privileges are sometimes vested in the body politic, with the view of advancing the convenience and interests of the public.

The franchise no more than a grant for land can be annulled by the State. These muniments of right are alike protected. But the property held under both is held subject to a public necessity, to be determined by the State. In either case, the property being taken renders valueless the evidence of right. But this does not, in the sense of the Constitution, impair the contracts. The bridge and the ground connected with it, together with the right of exacting toll, are the elements which constitute the value of the bridge. The situation and productiveness of the soil constitute the value of land. In both cases, an estimate is made of the value, under prescribed forms, and it is paid when the property is taken for public use. And in these cases the evidences of right are incidents to the property.

No State could resume a charter, under the power of appropriation, and carry on the functions of the corporation. A bank charter could not be thus taken, and the business of the bank continued for public purposes. Nor could this bridge have been taken by the State, and kept up by it, as a toll-bridge. This could not be called an appropriation of private property to public purposes. There would be no change in the use, except the application of the profits, and this would not bring the act within the power. The power must not only be exercised bona fide by a State, but the property, not its product, must be applied to public use.

It is argued, that, if the State may take this bridge, it may transfer it to other individuals, under the same or a different charter. This the State cannot do. It would in effect be taking the property from A to convey it to B. The public purpose for which the power is exerted must be real, not pretended. If in the course of time the property, by a change of circumstances, should no longer be required for public use, it may be otherwise disposed of. But this is a case not likely to occur. The legality of the act depends upon the facts and circumstances under which it was done. If the use of land taken by the public for a highway should be abandoned, it would revert to the original proprietor and owner of the fee.

It is objected that this bridge, being owned by a corporation and used by the public, does not come within the designation of private property. All property, whether owned by an individual or individuals, a corporation aggregate or sole, is within the term. In short, all property not public is private.

The use of this bridge, it is contended, is the same as before the act of appropriation. The public use the bridge now as before the act of appropriation. But it was a toll-bridge, and by the act it is made free. The use, therefore, is not the same. The tax assessed on the citizens of the town, to keep up and pay for the bridge, may be impolitic or unjust; but that is not a matter for the consideration of this court.

It is supposed, if this power is sustained by the State of Vermont, it will be in the power of a State to seize the evidences of its indebtment in the hands of its citizens, or within its jurisdiction, have their value assessed, and, by paying the amount, extinguish them. Such a case bears no analogy to the one before us. The contract only is acted upon in the case supposed. The obligation to pay the money by the State is materially impaired, which brings the case within the Constitution. But the appropriation of property affects the contract or title by which it is held only incidentally. This, it is said, is an extremely technical distinction, and is not sustainable, as it enables a State to do indirectly what the Constitution prohibits.

However nice the distinction may seem to be, when examined it will be found substantial.

The power of appropriation by a State has never been held by any judicial tribunal as impairing the obligation of a contract, in the sense of the Constitution. And this power has been frequently exercised by all the States, since the adoption of the Constitution. In the fifth article of the amendments to the Constitution it is declared, 'Nor shall private property be taken for public use without just compensation.' This refers to the action of the federal government, but a similar provision is contained in all the State constitutions. Now the Constitution does not prohibit a State from impairing the obligation of a contract unless compensation be made, but the inhibition is absolute. So that if such an act come within the prohibition, the act is unconstitutional. But this power has been exercised by the States, since the foundation of the government, and no one has supposed that it was prohibited by that clause in the Constitution which inhibits a State 'from impairing the obligations of a contract.'

The only reasonable result, therefore, to which we can come is, that the power in the State is an independent power, and does not come within the class of cases prohibited by the Constitution.

This view gives effect to the Constitution in imposing a salutary restraint upon legislation affecting contracts, but leaves the States free in their exercise of the eminent domain, which belongs to their sovereignties, is essential for the advancement of internal improvements, and acts only upon property within their respective jurisdictions. The powers do not belong to the same class. That which acts upon contracts and impairs their obligation only is prohibited.


text:
West River Bridge Company v. Dix/Separate Woodbury

Mr. Justice WOODBURY.

In the decisions of this court on constitutional questions it has happened frequently, that, though its members were united in the judgment, great differences existed among them in the reasons for it, or in the limitations on some of the principles involved. Hence it has been customary in such cases to express their views separately. I conform to that usage in this case the more readily, as it is one of the first impression before this tribunal, very important in its consequences, as a great landmark for the States as well as the general government, and, from shades of difference and even conflicts in opinion, will be open to some misconstruction.

I take the liberty to say, then, as to the cardinal principle involved in this case, that, in my opinion, all the property in a State is derived from, or protected by, its government, and hence is held subject to its wants in taxation, and to certain important public uses, both in war and peace. Vattel, B. 1, ch. 20, § 244; 2 Kent, Comm. 270; 37 Am. Jurist, 121; 1 Bl. Comm. 139; 3 Wils. 303; 3 Story on Const. 661; 3 Dallas, 95. Some ground this public right on sovereignty. 2 Kent, Comm. 339; Grotius, B. 1, ch. 1, § 6. Some, on necessity. 2 Johns. Ch. 162; 11 Wend. 51; 14 Wend. 51; 1 Rice, 383; Vanhorne's Lessee v. Dorrance, 2 Dallas, 310; Dyer v. Tuscaloosa Bridge, 2 Porter, 303; Harding v. Goodlett, 3 Yerger, 53. Some, on implied compact. Raleigh & Gaston Railroad Co. v. Davis, 2 Dev. & Bat. 456; 2 Bay, 36, in S.C.ar.; 3 Yerger, 53. Where a charter is granted after laws exist to condemn property when needed for public purposes, others might well rest such a right on the hypothesis, that such laws are virtually a part and condition of the grant itself, as much as if inscribed in it, totidem verbis. Towne v. Smith, 1 Woodbury & Minot, 134; 2 Howard, 608, 617; 1 Howard, 311; 3 Story on Const. §§ 1377, 1378, quaere.

But, however derived, this eminent domain exists in all governments, and distinguished from the public domain, as that consists of public lands, buildings, &c., owned in trust exclusively and entirely by the government (3 Kent, Comm. 339; Memphis v. Overton, 3 Yerger, 389), while this consists only in the right to use the property of others, when needed, for certain public purposes. Without now going further into the reasons or extent of it, and under whatever name it is most appropriately described, I concur in the views of the court, that it still remains in each State of the Union in a case like the present, having never been granted to the general government so far as respects the public highways of a State, and that it extends to the taking for public use for a road any property in the State, suitable and necessary for it. Tuckahoe Canal case, 11 Leigh, 75; 11 Peters, 560; 20 Johns. 724; 3 Paige, Ch. 45; 7 Pick. 459. But whether it could be taken without compensation, where no provision exists like that in the fifth amendment of the Constitution of the United States, or that in the Vermont constitution, somewhat similar, is a more difficult question, and on which some have doubted. 4 D. & E. 794; 1 Rice, 383; 3 Leigh, 337. I do not mean to express any opinion on this, as it is not called for by the facts of this case. But compensation from the public in such cases prevails generally in modern times, and certainly seems to equalize better the burden. 2 Dallas, 310; Pisc. Bridge v. Old Bridge, 7 N. Hamp. 63; 4 D. & E. 794; 1 Nott & McCord, 387; ''Stokes et al. v. Sup. Ass. Co.,'' 3 Leigh, 337; 11 Leigh, 76; Hartford Bridge, 17 Conn. 91; Vattel, B. 1, ch. 20, § 244; 3 Paige, Ch. 45; 2 Dev. & Bat. 451; 2 Kent, Comm. 339, note; Lex. & Oh. Railroad case, 8 Dana, 289.

Nor shall I stop to discuss whether it is on this principle of the eminent domain alone, that private property has always been taken for highways in England, on making compensation, so as to be a precedent for us. This was done there formerly, not as here, but by a writ ad quod damnum, and it was for ages issued before the grant of any new franchise by the king, whether a road, ferry, or market; and the inquiry related to the damage by it, whether to the public or individuals. Fitz. N. B. 221; 3 Bac. Abr., Highways, A.

Nor were alterations in roads, or even the widening or discontinuing of them, allowed without it. Thomas v. Sorrel, Vaughan, 314, 348, 349; Cooke, ch. 267; 6 Barn. & Ald. 566.

But in modern times Parliament, by various laws, have authorized all these, after inquiry and compensation awarded by certain magistrates. 1 Burr. 263; Camp. 648; Cro. Car. 266, 267; 5 Taunt. 634; Domat, B. 1, t. 8, § 2; 7 Adol. & Ellis, 124.

And thus, notwithstanding the theoretical omnipotence of Parliament, private rights and contracts have been in these particulars, about compensation and necessity for public use, as much respected in England as here.

So as to railroad companies, as well as turnpikes, under public trustees, and as to common highways; the former are often authorized there to erect bridges, and carry their roads over turnpikes and other highways; but it is on certain conditions, keeping them passable in that place or near, and on making compensation. Kemp v. L. & B. Railway Co., 1 Railway Cases, 505, and Attorney-General v. The L. & S. Railroad, 1 ib. 302, 224; 2 ib. 711; 1 Gale & D. 324; 2 ib. 1; 4 Jurist, 966; 5 ib. 652; 9 Dowling, P. C. 563; 7 Adol. & Ellis, 124; 3 Maule & Selw. 526; 11 Leigh, 42.

But I freely confess, that no case has been found there by me exactly in point for this, such as the taking of the road or bridge of one corporation for another, or of taking for the public a franchise of individuals connected with them. Though, at the same time, I have discovered no prohibition of it, either on principle or precedent, if making compensation and following the mode prescribed by statute.

The peculiarity in the present case consists in the facts, that a part of the property taken belonged to a corporation of the State, and not to an individual, and a part was the franchise itself of the act of incorporation.

I concur in the views, that a corporation created to build a bridge like that of the plaintiffs in error is itself, in one sense, a franchise. 2 Bl. Comm. 37; Bank of Augusta v. Earle, 13 Peters, 596; 4 Wheat. 657; 7 Pick. 394; 11 Peters, 474, 454, 472, 490, 641, 645; 11 Leigh, 76; 3 Kent, Comm. 459. And, in another sense, that it possesses franchises incident to its existence and objects, such as powers to erect the bridge and to take tolls. See same cases.

I concur in the views, also, that such a franchise as the incorporation is a species of property. 7 N. Hamp. 66; ''Tuckahoe Canal Co. v. Tuckahoe & Camb. Railroad Co.,'' 11 Leigh, 76. It is a legal estate vested in the corporation. 4 Wheat. 700; 11 Peters, 560. But it is often property distinct and independent of the other property in land, timber, goods, or choses in action, which a corporation, like a body not artificial, may own. 3 Bland, 449; 11 Leigh, 76.

It is also property subject to be sold, sometimes even on execution (Semb., 4 Mass. 495; 11 Peters, 434), and may be devised or inherited. 17 Conn. 60. And while I accede to the principle urged by the counsel for the bridge, that the act of incorporation in this case was a contract, or in the nature of one between the State and its members (1 Mylne & Craig, 162; 4 Peters, 514, 560; Lee v. Nailer, 2 You. & Coll. 618; King v. Pasmoor, 3 D. & E. 246; Woodward v. Dartmouth College, 4 Wheat. 628; 7 Cranch, 164; Terrett v. Tayler, 9 Cranch, 43, 52; 9 Wend. 351; 11 Peters, 257; Canal Co. v. Railroad, 4 Gill & Johns. 146; 3 Kent, Comm. 459; Enfield Toll-Bridge case, 17 Conn. 40; 1 Greenleaf, 79; 8 Wheat. 464; 10 Conn. 522; Peck, 269; 1 Alabama, 23; 2 Stewart, 30), I concur in the views of the court, that this or other property of corporations may be taken for the purpose of a highway, under the right of eminent domain, and that the laws of Vermont authorizing it are not in that respect and to that extent violations of the obligation of any contract made by it with the corporation. Bradshaw v. Rodgers, 20 Johns. 103, 742; ''The Trust. of Belf. Ac. v. Salmond,'' 2 Fairf. 113; Enfield Bridge case, 17 Conn. 40, 45, 61; 3 Paige, Ch. 45; Charles River Bridge v. Warren Bridge, 7 Pick. 394, 399; S.C.., 11 Peters, 474; 1 Bland, 449; Bellona Co. case, 3 Bland, 449.

Because there was no covenant or condition in the charter or contract, that the property owned by it should not be liable to be taken, like all other property in the State, for public uses in highways. 7 N. Hamp. 69; 4 Wheat. 196; Jackson v. Lamphire, 3 Peters, 289.

Because, without such covenant, all their property, as property, must be liable to proper public uses, either by necessity, or the sovereignty of the State over it, or by implied agreement.

And because, on a like principle, taxes may be imposed on such property, as well as all other property, though coming by grant from the State, and may be done without violating the obligation of the contract, when there is no bonus paid or stipulation made in the charter not to tax it. This is well settled. 5 Barn. & Ald. 157; 2 Railway Cases, 17 arg. 23; 7 Cranch, 164; New Jersey v. Wilson, 4 Peters, 511; Providence Bank v. Billings, 11 Peters, 567, Shaw, C. J., in Charles River Bridge v. Warren Bridge; Gordon v. Appeal Tax Court, 3 Howard, 146; 12 Mass. 252; 4 Wheaton, 699; 4 Gill & Johns. 132, 153; Williams v. Pritchard, 4 D. & E. 2. The grantees are presumed to know all these legal incidents or liabilities, and they being implied in the grant or contract, their happening is no violation of it. 8 Peters, 281, 287; 11 Peters, 641, 644; 3 Paige, 72.

Vattel says,-'The property of certain things is given up to the individuals only with this reserve.' B. 1, ch. 20, § 244.

In England anciently, when titles of land became granted with immunities from numerous ancient services, it was still considered that such lands were subject by implication, under a certain trinoda necessitas, to the expenses of repair of bridges as well as forts, and of repelling invasion. Tomlins, Dict., Trinoda Necess tas; 3 Bac. Abr., Highways, A.

Even the right to a private way is sometimes implied in a grant, from necessity. Cro. Jac. 189; 8 D. & E. 50; 4 Maule & Selw. 387; 1 Saund. 322, note.

It is laid down, also, by Justice Story, that 'a grant of a franchise is not in point of principle distinguishable from a grant of any other property.' Dartmouth College v. Woodward, 4 Wheat. 699, 701.

I concur, therefore, in the further views, that the corporation as a franchise, and all its powers as franchises, both being property, may for these and like reasons, in proper cases, be taken for public use for a highway. Pierce v. Somersworth, 10 N. Hamp. 370; 11 N. Hamp. 20; ''Piscat. Bridge v. N. Hamp. Bridge,'' 7 N. Hamp. 35, 66; 8 N. Hamp. 398, 143; 11 Peters, 645; Story J., in Warren Bridge v. Charles River Bridge; 2 Kent, Comm. 340, note; 2 Peters, 658; 5 Paige, Ch. 146; 1 Rice, 383; 2 Porter, 296; 7 Adol. & Ellis, 124; 3 Yerger, 41; 2 Fairf. 222; 23 Pick. 360; J. Bonaparte v. C. Railroad, Baldw. C. C. 205; Tuckahoe Canal Co. v. The T. & J. River Railroad Co., 11 Leigh, 42; Enfield Bridge Co. v. Hartford & New Haven Railroad, 17 Conn. 40; Armington v. Barnet, 15 Vermont, 745, and 16 Vermont, 446, this case; 3 Cowen, 733, 754; 11 Wendell, 590; Lex. & Oh. Railroad case, 8 Dana, 289; 18 Wend. 14.

It must be confessed, that some surprise has been felt to find this doctrine so widely sustained, and in so many of the States, and yet no exact precedent existing in England.

But in relation to it here, I am constrained, in some respects, to differ from others, and, as at present advised, agree to the last proposition, concerning the taking of the franchise itself of a corporation, only when the further exercise of the franchise as a corporation is inconsistent or incompatible with the highway to be laid out.

It is only under this limitation as to the franchise itself, that there seems to be any of the necessity to take it which, it will be seen in the positions heretofore and hereafter explained, should exist. Nor do I agree to it with that limitation, without another,-that it must be in cases where a clear intent is manifested in the laws, that one corporation and its uses shall yield to another, or another public use, under the supposed superiority of the latter and the necessity of the case. 4 Gill & Johns. 108, 150; Barbour v. Andover, 8 N. Hamp. 398.

Within these limitations, however, the acts of incorporation and all corporate franchises appear to me to possess no more immunity from reasonable public demands for roads and taxes, than the soil and freehold of individuals.

The land may come by grant or patent from the State, as well as the corporation, and both the grant and corporation may be contracts. But they are contracts giving rights of property, held, and of course understood to be held, subject to those necessary burdens and services and easements to which all other property is liable. And it is neither inconsistent with the grant of them, nor a violation of the contract contained in them, to impose those burdens and easements, unless an express agreement has been made to the contrary by the State in the act of incorporation or grant, as is sometimes done in respect to taxation. But where the corporation, as a franchise, or its powers as franchises, can still be exercised usefully or profitably, and the highway be laid out as authorized, I see no reasons why these franchises should then be condemned or taken. The property owned by a banking or manufacturing corporation may, for instance, be condemned for highways, necessarily, where situated on a great line of travel; but why should their franchises be, if their continued existence and use may be feasible and profitable, and one not inconsistent with the taking and employment of their other property for a public highway?

In this instance, however, as a fact, the franchise was established and seems to be useful only in one locality. The continuance of it elsewhere than at this spot would be of no benefit to individual members or the public. If the bridge itself and land of the corporation at that place were taken, it was better for the latter that the franchise should be taken with them, if enhancing the damages any, because, unlike a bank or manufacturing company, the corporation could not do business to advantage elsewhere, even within the limited four miles, as there was no road elsewhere within their grant. The law of Vermont, too, was clear, that the toll-bridge might be made to give way for a free highway. It is, therefore, only under the particular circumstances and nature of this case, that, in my apprehension, the taking of the franchise itself was not a violation of the contract. For, under different circumstances, if a franchise be taken and condemned for a highway, when not connected locally with other property wanted, when it can be exercised on ordinary principles elsewhere, when not in some respects incident to, or tied up with, the particular property and place needed, I am not now prepared to uphold it. I am even disposed to go further, and say, that if any property of any kind is not so situated as to be either in the direct path for a public highway, or be really needed to build it, the inclination of my mind is, that it cannot be taken against the consent of the owner. Because, though the right of eminent domain exists in some cases, it does not exist in all, nor as to all property, but probably as to such property only as, from its locality and fitness, is necessary to the public use. Semb., 4 Mylne & Craig, 116; ''Webb v. Manch. & Leeds Railway Co.,'' 1 Railway Cases, 576.

It may be such, not only for the bed of the road, but perhaps for materials in gravel, stone, and timber, to build it with. Yet even then it must be necessary and appropriate as incidents. 2 Dev. & Bat. 462; 13 East, 200.

And also, for aught I now see, circumstances must, from its locality and the public wants, raise an urgent necessity for it. 'The public necessities' are spoken of usually as the fit occasion to exercise the power, if it be not derived from them in a great degree, and the reason of the case is confined to them. (See cases before.)

The ancient trinoda necessitas extended to nothing beyond such necessity.

Indeed, without further examination, I fear that even these limitations may not be found sufficient in some kinds of public highways,-such as railroads, for instance. And I must hear more in support of this last position before acquiescing in their right to take, in invitum, all the materials necessary to build such roads, as the timbers on which their rails are laid, or the iron for the rails themselves.

Nor do I agree that, in all cases of a public use, property which is suitable or appropriate can be condemned. The public use here is for a road, and the reasoning and cases are confined chiefly to bridges and roads, and the incident to war. But the doctrine, that this right of eminent domain exists for every kind of public use, or for such a use when merely convenient, though not necessary, does not seem to me by any means clearly maintainable. It is too broad, too open to abuse. Where the public use is one general and pressing, like that often in war for sites of batteries, or for provisions, little doubt would exist as to the right. Salus populi suprema est lex. So as to a road, if really demanded in particular forms and places to accommodate a growing and changing community, and to keep up with the wants and improvements of the age,-such as its pressing demands for easier social intercourse, quicker political communication, or better internal trade,-and advancing with the public necessities from blazed trees to bridle-paths, and thence to wheel-roads, turnpikes, and railroads.

But when we go to other public uses, not so urgent, not connected with precise localities, not difficult to be provided for without this power of eminent domain, and in places where it would be only convenient, but not necessary, I entertain strong doubts of its applicability. Who ever heard of laws to condemn private property for public use, for a marine hospital or state prison?

So a custom-house is a public use for the general government, and a court-house or jail for a State. But it would be difficult to find precedent or argument to justify taking private property, without consent, to erect them on, though appropriate for the purpose. No necessity seems to exist, which is sufficient to justify so strong a measure. A particular locality as to a few rods in respect to their site is usually of no consequence.; while as to a light-house, or fort, or wharf, or highway between certain termini, it may be very important and imperative. I am aware of no precedents, also, for such seizures of private property abroad, for objects like the former, though some such doctrines appear to have been advanced in this country. 3 Paige, 45. Again, many things belonging to bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public, in the necessity to obtain them by the power of the eminent domain. Such seem to be cars, engines, &c., if not the timber for rails, and the rails themselves. Gordon v. C. & J. Railway Co., 2 Railway Cases, 809.

Such things do not seem to come within the public exigency connected with the roads which justifies the application of the principle of the eminent domain. Nor does even the path for the road, the easement itself, if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the user must be for the people at large,-for travellers,-for all,-must also be compulsory by them, and not optional with the owners,-must be a right by the people, not a favor,-must be under public regulations as to tolls, or owned, or subject to be owned, by the State, in order to make the corporation and object public, for a purpose like this. 3 Kent, Comm. 270; Railroad Co. v. Chappell, 1 Rice, 383; Memphis v. Overton, 3 Yerger, 53; King v. Russell, 6 Barn. & Cres. 566; King v. Ward, 4 Adol. & Ellis, 384.

It is not enough that there is an act of incorporation for a bridge, or turnpike, or railroad, to make them public, so as to be able to take private property constitutionally, without the owner's consent; but their uses, and object, or interests, must be what has just been indicated,-must in their essence, and character, and liabilities, be public within the meaning of the term 'public use.' There may be a private bridge, as well as private road, or private railroad, and this with or without an act of incorporation.

In the present instance, however, the use was to be for the whole community, and not a corporation of any kind. The property was taken to make a free road for the people of the State to use, and was thus eminently for a public use, and where there had before been tolls imposed for private profit and by a private corporation so far as regards the interest in its tolls and property.

And the only ground on which that corporation, private in interest, was entitled in any view originally to condemn land or collect tolls was, that the use of its bridge was public,-was open to all and at rates of fare fixed by the legislature and not by itself, and subject to the revision and reduction of the public authorities.

It may be, and truly is, that individuals and the public are often extensively benefited by private roads, as they are by mills, and manufactories, and private bridges. But such a benefit is not technically nor substantially a public use, unless the public has rights. 1 Rice, 388. And in point of law it seems very questionable as to the power to call such a corporation a public one, and arm it with authority to seize on private property without the consent of its owners.

I exclude, therefore, all conclusions as to my opinions here being otherwise than in conformity to these suggestions; though when, as in the present case, a free public use in a highway and bridge is substituted for a toll-bridge, and on a long or great and increasing line of public travel, and thus vests both a new benefit and use, and a more enlarged one, in the public, and not in any few stockholders, I have no doubt that these entitle that public for such a use to condemn private property, whether owned by an individual or a corporation. Boston W. P. Co. v. B. & W. Railroad Corp., 23 Pick. 360. And it is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sandstone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement. 2 Dev. & Bat. 456; 1 Rice, 395; 8 Dana, 309.

I exclude, also, any inference, that, in assenting to the doctrine, that an act of incorporation for a toll-bridge is a contract, giving private interests and rights as well as public ones, and thereby not allowing a State to take the private ones or alter them, unless for some legitimate public use, or by consent, as laid down in 4 Wheat. 628, I can or do assent to the doctrine of some of the judges there in respect to public offices being such contracts as not to be changed or abolished by a State on public considerations, without incurring a violation of the contract.

I should be very reluctant to hold, till further advised, that public offices are not, like public towns, counties, &c., mere political establishments, to be abolished or changed for political considerations connected with the public welfare. 9 Cranch, 43. The salaries, duration; and existence of the offices themselves seem to be exclusively public matters, open to any modification which the representatives of the public may decide to be necessary, whenever no express restriction on the subject has been imposed in the constitution or laws. Quaere. Hoke v. Henderson, 4 Dev. 1.

This would seem the implied condition of the office or contract, as much as that it may be taxed by the government under which it is held, though not by other governments so as to impair or obstruct it. See, as to the last, McCulloch v. Maryland, 4 Wheat. 316; Weston v. The C. C. of Charleston, 2 Peters, 449; ''Dobbins v. Comm. of Erie City,'' 16 Peters, 435.

Finally, I do not agree that even this franchise, as property, can be taken from this corporation without violating the contract with it, unless the measure was honest, bon a fide, and really required for what it professed to be, beside being, as before remarked, proper, on account of the locality and nature of this property, to be condemned for this purpose.

And though I agree, that, for most cases and purposes, the public authorities in a State are the suitable judges as to this point, and that the judiciary only decide if their laws are constitutional (2 Kent, Comm. 340; 1 Rice, 383); that the legislature generally acts for the public in this (2 Porter, 303; 3 Bl. Comm. 139, note; 4 D. & E. 794, 797); that road agents are their agents, under this limitation (1 Rice, 383); yet I am not prepared to agree, that if, on the face of the whole proceedings, the law, the report of commissioners, and the doings of the courts,-it is manifest that the object was not legitimate, or that illegal intentions were covered up in forms, or the whole proceedings a mere 'pretext,' our duty would require us to uphold them. Ibid.; Rice, 391. In England, though this power exists, yet if used maliciously or wantonly, it is held to be void. Boyfield v. Porter et al., 13 East, 200.

In this case, however, while the fairness of it is impeached by the plaintiffs in error, yet on the record the object avowed is legal. It was to make travel free where it was before taxed, and the bridge, though remote from the changes desired in the old road, was still situated on the great line of travel over it, and not merely by color and finesse connected, and, from increases in population and business, seemed proper to be made free at the expense of the town or county.

Nor on the face of the record do the proceedings seem void, because the assessment may have been without a jury, when it was made by the legal officers, appointed for that purpose. 3 Peters, 280; 2 Dev. & Bat. 451, 460; ''Beekman v. Sar. Railroad,'' 3 Paige, Ch. 45. Nor void as made by the commissioners without notice, when the return states notice, and when there was a full hearing enjoyed by all before the court on the report.

Nor void because the compensation was too small to the corporation,-as it was assessed in conformity to law,-or too burdensome to the town alone to discharge, though the last might well have been flung on a larger number, like a county. 10 N. Hamp. 370; Tomlins, Dict., Ways, 2; 1 Rice, 392. Nor because the commissioners take a fee instead of an easement, when the legislature provide for a fee as more expedient. 2 Dev. & Bat. 451, 467. Nor because some of the property condemned was personal, when it was mixed with the real, and when real or personal, if needed and appropriate, may at times be liable. 1 Rice, 383.

With these explanations, I would express my concurrence in the judgment of the court.


text:
West River Bridge Company v. Dix/Dissent Wayne

Mr. Justice WAYNE delivered a dissenting opinion.

The West River Bridge Company, Plaintiffs in error, v. Joseph Dix, and the Towns of Brattleboro' and Dummerston in the County of Windham.

This cause same on to be heard on the transcript of the record from the Supreme Court of Judicature of the State of Vermont, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.

The West River Bridge Company, Plaintiffs in error, v. The Towns of Brattleboro' and Dummerston, in the County of Windham, and Joseph Dix, Asa Boyden, and Phineas Underwood.


text:
User talk:ThT

— billinghurst  sDrewth  03:18, 27 December 2010 (UTC)

title: User talk:ThT


text: Index:The Babes in the Wood.djvu

title: Index:The Babes in the Wood.djvu


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/50

eminent comedian, Mr. John Laurence Toole, is a native of the city of London, and was born, as he sometimes jokingly says, 'of poor but dishonest parents, you know,' in the year 1831. He is the son of the late celebrated toastmaster, who distinguished himself as much by his 'Silence, gentlemen, if you please,' and by his good and genial qualities, as his son has since done on the boards.

Mr. Toole received his education at the City of London School, and was removed thence at the usual age to become a clerk in a merchant's office, His taste for the drama appears to have developed itself very early in life, for at this time he became a member of the 'City Histrionic Club,' where he soon became very popular. The appearances of the amateur actor were hailed with applause at several metropolitan literary institutions, where he performed in various characters. His successes at Walworth, Aldersgate-street, Hackney, Crosby Hall, and other places, caused Mr. Toole to lay down his pen and put on the buskin as a professional actor.

His first appearance on the stage of a regular theatre was at Ipswich, on the occasion of a benefit, where— under an assumed name—he played the part of Silvester Daggerwood. This assumption was completely successful. On his return to town, Mr. Toole played as an amateur at the Haymarket, for Mr. F. Webster's benefit, taking the character of Simmons in the 'Spitalfields Weaver.' After this performance he gave up his commercial pursuits, and took to the stage for good.

His debut as a professional was made at the Queen's Theatre, Dublin, on the 2d of October 1852—now twenty years ago. Since that date Mr. Toole's career has been a series of successes. From Dublin, where he was well received, Mr. Toole went to Edinburgh, and thence to Glasgow.

In London his first engagement was at the St. James's Theatre, then


text: Page:The Babes in the Wood.djvu/1

title: Page:The Babes in the Wood.djvu/1


text: Page:The Babes in the Wood.djvu/3

title: Page:The Babes in the Wood.djvu/3


text: Page:The Babes in the Wood.djvu/6

title: Page:The Babes in the Wood.djvu/6


text: Page:The Babes in the Wood.djvu/7

title: Page:The Babes in the Wood.djvu/7


text: Page:The Babes in the Wood.djvu/10

title: Page:The Babes in the Wood.djvu/10


text: Page:The Babes in the Wood.djvu/12

title: Page:The Babes in the Wood.djvu/12


text:
Page talk:The Babes in the Wood.djvu/12

This back cover appears in the "Read Online" option from Internet Archive, but is not included in the djvu file. - Theornamentalist (talk) 04:29, 27 December 2010 (UTC)

title: Page talk:The Babes in the Wood.djvu/12


text:
Page:The Salticidae (Spiders) of Panama.djvu/258

 Sternum. Longer than wide in ratio of 3 : 2; scutiform; widest between second coxae, but nearly as wide between first; quite convex; terminates posteriorly in a blunt point which is not extended between fourth coxae which are separated by three tenths of their diameter.

Legs. 1423. Tibial index of first and fourth legs 17.

Legs without fringes. First leg considerably extended and first femora somewhat enlarged but not greatly so.

Spines. First leg: femur dorsal 0-0-1-1-1, prolateral distal 2; patella only prolateral 0-1-0; tibia only prolateral 0-1-0, ventral 1r-1r-2 on right, 1r-2-2 on left; metatarsus only ventral 2-2. Second leg: as in first except metatarsus ventral 1r-2. Third leg: femur dorsal 0-1-1-1, prolateral and retrolateral distal 1; patella only retrolateral 0-1-0; tibia only prolateral 0-1-0; retrolateral 0-2-0, ventral 0-0-2; metatarsus prolateral 0-0-2, retrolateral 0-0-1, ventral 0-0-2. Fourth leg: femur and patella as in third; tibia prolateral 0-1-0, retrolateral 0-1-0, ventral 0-0-2; metatarsus as in third.

Palp. Both tibia and patella short with former only a little more than half as long as latter; femur much bent; tibial retrolateral apophysis long, slender, and sinuous; embolus sickle-shaped from an expanded base (Figs. 215–216). At distal end of femur is a dorsal snow white cap of scales which may extend over a much longer part of the segment in life.

Abdomen. Ovoid, longer than wide in ratio of 13 : 8; widest near middle; all spinnerets short, first pair most robust, third pair somewhat slender and plainly two-jointed, middle pair shortest and closely surrounded by others; tracheal spiracle near base of spinnerets; apparently colulus indicated by a very small tuft of black bristles.

Color in alcohol. Legs: first and second pairs of coxae dull brownish, others lighter; all femora dark brown with scattered white scales, first pair with a rather conspicuous prolateral white patch of scales; all patellae yellowish tipped with reddish brown; all tibiae reddish brown; first metatarsi yellowish in proximal third, elsewhere reddish brown, second and third metatarsi yellowish except reddish brown distal ends,


text:
Page:The Babes in the Wood.djvu/2

 THE

Now ponder well, you parents dear,  These words which I shall write; A doleful story you shall hear,  In time brought forth to light. A gentleman of good account  In Norfolk dwelt of late, Who did in honour far surmount  Most men of his estate.

Sore sick he was, and like to die,  No help his life could save; His wife by him as sick did lie,  And both possessed one grave. No love between these two was lost,  Each was to other kind; In love they lived, in love they died,  And left two babes behind.

The one, a fine and pretty boy,  Not passing three years old; The other, a girl more young than he,  And framed in beauty's mold. The father left his little son,  As plainly doth appear, When he to perfect age should come,  Three hundred pounds a year.

title: Page:The Babes in the Wood.djvu/2


text:
Page:The Babes in the Wood.djvu/4

Rh And to his little daughter Jane,  Five hundred pounds in gold, To be paid down on her marriage-day,  Which might not be controlled; But if the children chanced to die,  Ere they to age should come, Their uncle should possess their wealth;  For so the will did run.

"Now, brother," said the dying man,  "Look to my children dear; Be good unto my boy and girl,  No friends else have they here: To God and you I recommend  My children dear this day; But little while be sure we have  Within this world to stay.

"You must be father and mother both,  And uncle, all in one; God knows what will become of them,  When I am dead and gone." With that bespake their mother dear:  "O brother kind," quoth she, "You are the man must bring our babes  To wealth or misery.

And if you keep them carefully,  Then God will you reward; But if you otherwise should deal,  God will your deeds regard." With lips as cold as any stone,  They kissed their children small: God bless you both, my children dear;"  With that their tears did fall.

title: Page:The Babes in the Wood.djvu/4


text:
Page:The Babes in the Wood.djvu/5

Rh VIII. These speeches then their brother spake  To this sick couple there: "The keeping of your little ones,  Sweet sister, do not fear. God never prosper me nor mine,  Nor aught else that I have, If I do wrong your children dear  When you are laid in grave."

IX. The parents being dead and gone,  The children home he takes, And brings them straight unto his house,  Where much of them he makes. He had not kept these pretty babes  A twelvemonth and a day, But, for their wealth, he did devise  To make them both away.

X. He bargained with two ruffians strong  Which were of furious mood, That they should take these children young  And slay them in a wood. He told his wife an artful tale:  He would the children send To be brought up in fair London,  With one that was his friend.

XI. Away then went those pretty babes,  Rejoicing at that tide, Rejoicing with a merry mind,  They should on cock-horse ride. They prate and prattle pleasantly,  As they rode on the way, To those that should their butchers be,  And work their lives' decay.

title: Page:The Babes in the Wood.djvu/5


text:
Page:The Babes in the Wood.djvu/8

Rh XII. So that the pretty speech they had,  Made murder's heart relent: And they that undertook the deed,  Full sore did now repent. Yet one of them, more hard of heart,  Did vow to do his charge, Because the wretch that hired him  Had paid him very large.

The other won't agree thereto,  So here they fall to strife; With one another they did fight  About the children's life; And he that was of mildest mood,  Did slay the other there, Within an unfrequented wood:  The babes did quake for fear!

He took the children by the hand,  Tears standing in their eye, And bade them straightway follow him,  And look they did not cry; And two long miles he led them on,  While they for food complain: "Stay here," quoth he, "I'll bring you bread  When I come back again."

These pretty babes, with hand in hand,  Went wandering up and down; But never more could see the man  Approaching from the town: Their pretty lips with blackberries  Were all besmeared and dyed, And when they saw the darksome night?  They sat them down and cried.

title: Page:The Babes in the Wood.djvu/8


text:
Page:The Babes in the Wood.djvu/9

Rh XVI. Thus wandered these poor innocents  Till death did end their grief, In one another's arms they died,  As wanting due relief: No burial this pretty pair  Of any man receives, Till Robin Redbreast piously  Did cover them with leaves.

XVII. And now the heavy wrath of God  Upon their uncle fell; Yea, fearful fiends did haunt his house,  His conscience felt an hell: His barns were fired, his goods consumed,  His lands were barren made, His cattle died within tho field,  And nothing with him stayed.

XVIII. And in the voyage to Portugal  Two of his sons did die; And to conclude, himself was brought  To want and misery. He pawned and mortgaged all his land  Ere seven years came about; And now at length this wicked act  Did by this means come out:

XIX. The fellow that did take in hand  These children for to kill, Was for a robbery judged to die,  Such was God's blessed will. Who did confess the very truth,  As here hath been displayed: Their uncle having died in jail,  Where he for debt was laid.

title: Page:The Babes in the Wood.djvu/9


text:
Page:The Babes in the Wood.djvu/11

Rh XX. You that executors be made,  And overseers eke Of children that be fatherless,  And infants mild and meek; Take you example by this thing,  And yield to each his right, Lest God with such like misery  Your wicked minds requite.

title: Page:The Babes in the Wood.djvu/11


text: The Babes in the Wood (c. 1890)

title: The Babes in the Wood (c. 1890)


text:
User talk:201.220.232.61

Welcome

Hello, and welcome to Wikisource! Thank you for your contributions. I hope you like the place and decide to stay. Here are a few good links for newcomers:

 * Help pages
 * Style Guide
 * Inclusion policy

You are welcome to continue editing articles without logging in, but you may wish to  [ create an account] . Doing so is free, requires no personal information, and provides several benefits. For one thing, if you continue to edit without a username, your IP address is used to publicly identify you.

In any case, I hope you enjoy donating your time to grow the Wikisource library that is free for everyone to use! In discussions, please sign your comments using four tildes ( ~ ); this will automatically produce your IP address (or username if you're logged in) and the date. If you need help, ask me on my talk page, or ask your question here (click  [ edit] ) and place  before your question. Again, welcome! — billinghurst  sDrewth  05:32, 27 December 2010 (UTC)

title: User talk:201.220.232.61


text:
Page:Landscape Painting by Birge Harrison.djvu/36

are all born color-blind. The most perfect eyes in the world cannot see one-quarter of the colors which are known to exist in nature. Those of us who are fortunate, it is true, are able to differentiate with reasonable exactness the three primary colors which go to make up our limited human color-scale—but what about the tones which certainly exist above the ultra-violet band and below the infra-red?

For convenience, the full color-scale of nature may be divided into four octaves, of which less than one-quarter is taken up by the prismatic scale of the rainbow, which includes all the colors


text:
Page:Landscape Painting by Birge Harrison.djvu/37

 to the human eye. Immediately below the line of infra-red, at the point where the human vision ceases to record color-impressions, there begins a series of vibrations which we can only feel as warmth; and still lower down the scale is another series which the human ear records in the form of sound. Yet we know of a certainty that these vibrations are also potential color-waves, that each note of music carries its own special color-note, whose quality and beauty, alas! may never be known to man, owing to the limited range of his vision.

However, no one can with certainty affirm that this may not be one of the joys that await future generations. Nothing is beyond the range of possibility. Already, by means of the fluoroscope, we are able to extend our vision somewhat, and peer over a little into


text:
Page:Landscape Painting by Birge Harrison.djvu/38

 the realm of the ultra-violet. And, if it is held that a wise providence, at the beginnings of things, limited our sensory nerves to the record of such impressions as were essential to the physical existence of the primal creature, thereby confining our later æsthetic activities to the exploitation of a given range of sensations, a certain regret is nevertheless permissible when one thinks of the bewildering color-feast that might await us in a Wagner overture or a Beethoven sonata. What a fascinating problem it would be, for instance, to work out the color probabilities of some great masterpiece of music, and fling them glowing upon the translucent page of a vast cathedral window. If the time ever comes when man is able, by means of some miraculous transformer, to gaze upon music-color, it is safe to venture the prediction that it will be found to


text:
Page:Landscape Painting by Birge Harrison.djvu/39

 be harmonious and beautiful in proportion to the harmony and beauty of the music upon which it is based.

This is guesswork, of course, but it rests upon a strong basis of probability. Our actual knowledge of the subject is at present limited to mathematics. The velocity of the impulses has been noted and the number of the vibrations has been counted. We know those of sound to be comparatively slow, there being but 4,000 vibrations to the inch in the highest treble note of the piano. Above this on the ascending scale comes a long series of vibrations of which we know little or nothing; and it is not until we reach 36,000 vibrations to the inch that we come again within the range of human sensory consciousness. This number represents the rate of vibrations in the red note of our prismatic scale. The rate of vibration increases


text: Landscape Painting/Chapter 1

title: Landscape Painting/Chapter 1


text: Page:Landscape Painting by Birge Harrison.djvu/3


text: Page:Landscape Painting by Birge Harrison.djvu/4


text:
Page:Landscape Painting by Birge Harrison.djvu/5

 LANDSCAPE PAINTING


text: Page:Landscape Painting by Birge Harrison.djvu/6


text: Page:Landscape Painting by Birge Harrison.djvu/7


text: The Swiss Family Robinson - 1851/Chapter VII


text: Page:Landscape Painting by Birge Harrison.djvu/8


text:
Page:Landscape Painting by Birge Harrison.djvu/9

BY

BIRGE HARRISON

WITH TWENTY-FOUR REPRODUCTIONS OF REPRESENTATIVE PICTURES

FOURTH EDITION

NEW YORK

CHARLES SCRIBNER'S SONS

1910


text:
Page:Landscape Painting by Birge Harrison.djvu/10

 CoyrightCopyright [sic], 1909, by Charles Scribner's Sons

Published October, 1909


text:
Page:Landscape Painting by Birge Harrison.djvu/11

 To

J. S. H.


text: Landscape Painting

title: Landscape Painting


text:
Page:The Swiss Family Robinson - 1851.djvu/68

 called out, 'Jack! Jack! Fritz's jackal is covered with crabs! Come!—come!' I ran to tell mamma, who brought a net that came from the ship, and we caught these in a few minutes, and could have got many more, if you had not come."

I commanded them to put the smaller ones back into the river, reserving only as many as we could eat. I was truly thankful to discover another means of support.

We now landed our timber. I had looked at Jack’s site for the bridge, and thought my little architect very happy in his selection; but it was at a great distance from the timber. I recollected the simplicity of the harness the Laplanders used for their reindeer. I tied cords to the horns of the cow—as the strength of this animal is in the head—and then fastened the other ends round the piece of timber we wanted moving. I placed a halter roimd the neck of the ass, and attached the cords to this. VVe were thus enabled, by degrees, to remove all our wood to the chosen spot, where the sides of the river were steep, and appeared of equal height.

It was necessary to know the breadth of the river, to select the proper planks; and Ernest proposed to procure a ball of packthread from his mother, to tie a stone to one end of the string, and throw it across the river, and to measure it after drawing it back. This expedient succeeded admirably. We found the breadth to be eighteen feet; but, as I proposed to give the bridge strength by having three feet, at least, resting on each shore, we chose some planks of twenty-furr feet in length. How we were to get these across the river was


text:
Page:Landscape Painting by Birge Harrison.djvu/18

CONTENTS


text:
Page:The Swiss Family Robinson - 1851.djvu/69

 another question, which we prepared to discuss during dinner, to which my wife now summoned us.

Our dinner consisted of a dish of crawfish, and some very good rice-milk. But, before we began, we admired her work. She had made a pair of bags for the ass, sewed with packthread; but having no large needles, she had been obliged to pierce holes with a nail, a tedious and painful process. Well satisfied with her success, we turned to our repast, talking of our bridge, which the boys, by anticipation, named the Nonpareil. We then went to work.

There happened to be an old trunk of a tree standing on the shore. To this I tied my main beam by a strong cord, loose enough to turn round the trunk. Another cord was attached to the opposite end of the beam, long enough to cross the river twice. I took the end of my rope over the stream, where we had previously fixed the block, used in our boat, to a tree, by the hook which usually suspended it. I passed my rope, and returned with the end to our own side. I then harnessed my cow and ass to the end of my rope, and drove them forcibly from the shore. The beam turned slowly round the trunk, then advanced, and was finally lodged over the river, amidst the shouts of the boys; its own weight keeping it firm. Fritz and Jack leaped on it immediately to run across, to my great fear.

We succeeded in placing four strong beams in the same way; and, by the aid of my sons, I arranged them at a convenient distance from each other, that we might have a broad and good bridge. We then laid down planks close


text: The Swiss Family Robinson - 1851/Chapter VIII


text:
Page:Landscape Painting by Birge Harrison.djvu/112

 VI

DRAWING

is the grammar of art. As grammar is the framework on which all good literature is built, so drawing is the foundation of all good painting. It is no more possible to imagine a great picture with crude and incompetent drawing than it is to think of a great sonnet whose grammar should be uncouth and halting. Like grammar, also, drawing is not a virtue to be extolled in a picture, but an essential to be demanded.

Fortunately, both grammar and drawing may be learned by any one of good average intelligence. In reference to drawing, however, this statement [78]


text:
Page:Landscape Painting by Birge Harrison.djvu/122

 forms, and at the same time it lends itself to the large and noble vision—for, even in drawing, the true painter must always see big. Here, as elsewhere, he must "grab the essential" and cast the little and the inessential behind him.