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United States v. Smith (18 U.S. 153)/Dissent Livingston

Mr. Justice LIVINGSTON dissented.

In a case affecting life, no apology can be necessary for expressing my dissent from the opinion which has just been delivered.

The only question of any importance in this case is, whether the act of the 3d of March, 1819, be a constitutional exercise of the power delegated to Congress of 'defining and punishing piracies?' The act declares, that any person who shall commit on the high seas the crime of piracy as defined by the law of nations, shall be punished with death. The special power here given to define piracy, can be attributed to no other cause, than to the uncertainty which it was known existed on this subject in the law of nations, and which it must have been the intention of the framers of the constitution to remove, by conferring on the national legislature the power which has been mentioned. It was well known to the members of the Federal Convention, that in treatises on the law of nations, or in some of them at least, definitions of piracy might be found; but it must have been as well known to them that there was not such a coincidence on this subject, as to render a reference to that code a desirable or safe mode of proceeding in a criminal, and espekcially in a capital case. If it had been intended to adopt the definition or definitions of this crime, so far as they were to be collected from the different commentators on this code, with all the uncertainty and difficulty attending a research for that purpose, it might as well at once have been adopted as a standard by the constitution itself. The object, therefore, of referring its definition to Congress was, and could have been no other than, to enable that body, to select from sources it might think proper, and then to declare, and with reasonable precision to define, what act or acts should constitute this crime; and having done so, to annex to it such punishment as might be thought proper. Such a mode of proceeding would be consonant with the universal practice in this country, and with those feelings of humanity which are ever opposed to the putting in jeopardy the life of a fellow-being, unless for the contravention of a rule which has been previously prescribed, and in language so plain and explicit as not to be misunderstood by any one. Can this be the case, or can a crime be said to be defined, even to a common intent, when those who are desirous of information on the subject are referred to a code, without knowing with any certainty, where it is to be found, and from which even those to whom it may be accessible, can with difficulty decide, in many cases, whether a particular act be piracy or not? Although it cannot be denied that some writers on the law of nations do declare what acts are deemed piratical, yet it is certain, that they do not all agree; and if they did, it would seem unreasonable to impose upon that class of men, who are the most liable to commit offences of this description, the task of looking beyond the written law of their own country for a definition of them. If in criminal cases every thing is sufficiently certain, which by reference may be rendered so, which was an argument used at bar, it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. It is not certain, that on examination, the crime would not be found to be more accurately defined in the code thus referred to, than in any writer on the law of nations; but the objection to the reference in both cases is the same; that it is the duty of Congress to incorporate into their own statutes a definition in terms, and not to refer the citizens of the United States for rules of conduct to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted. Nor does it make any difference in this case, that the law of nations forms part of the law of every civilized country. This may be the case to a certain extent; but as to criminal cases, and as to the offence of piracy in particular, the law of nations could not be supposed of itself to form a rule of action; and, therefore, a reference to it in this instance, must be regarded in the same light, as a reference to any other foreign code. But, it is said, that murder and robbery have been declared to be punishable by the laws of the United States, without an definition of what act or acts shall constitute either of these offences. This may be; but both murder and robbery, with arson, burglary, and some other crimes, are defined by writers on the common law, which is part of the law of every State in the Union, of which, for the most obvious reasons, no one is allowed to allege his ignorance in excuse for any crime he may commit. Nor is there any hardship in this, for the great body of the community have it in their power to become acquainted with the criminal code under which they live; not so when acts which constitute a crime are to be collected from a variety of writers, either in different languages, or under the disadvantage of translations, and from a code with whose provisions even professional men are not always acquainted. By the same clause of the constitution, Congress have power to punish offences against the law of nations, and yet it would hardly be deemed a fair and legitimate execution of this authority, to declare, that all offences against the law of nations, without defining any one of them, should be punished with death. Such mode of legislation is but badly calculated to furnish that precise and accurate information in criminal cases, which it is the duty, and ought to be the object, of every legislature to impart.

Upon the whole, my opinion is, that there is not to be found in the act that definition of piracy which the constitution requires, and that, therefore, judgment on the special verdict ought to be rendered for the prisoner.


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Rh And the problem of possible redemption?

The minor was proved by the major.

Which various features of the constellations were in turn considered?

The various colours significant of various degrees of vitality (white, yellow, crimson, vermilion, cinnabar): their degrees of brilliancy: their magnitudes revealed up to and including the 7th: their positions: the waggoner’s star: Walsingham way: the chariot of David: the annular cinctures of Saturn: the condensation of spiral nebulae into suns: the interdependantinterdependent [sic] gyrations of double suns: the independent synchronous discoveries of Galileo, Simon Marius, Piazzi, Le Verrier, Herschel, Galle: the systematisations attempted by Bode and Kepler of cubes of distances and squares of times of revolution: the almost infinite compressibility of hirsute comets and their vast elliptical egressive and reentrant orbits from perihelion to aphelion: the sidereal origin of meteoric stones: the Libyan floods on Mars about the period of the birth of the younger satroscopistastroscopist [sic]: the annual recurrence of meteoric showers about the period of the feast of S. Lawrence (martyr, 10 August): the monthly recurrence known as the new moon with the old moon in her arms: the posited influence of celestial on human bodies: the appearance of a star (1st magnitude) of exceeding brilliancy dominating by night and day (a new luminous sun generated by the collision and amalgamation in incandescence of two nonluminous exsuns) about the period of the birth of William Shakespeare over delta in the recumbent neversetting constellation of Cassiopeia and of a star (2nd magnitude) of similar origin but lesser brilliancy which had appeared in and dissappeareddisappeared [sic] from the constellation of the Corona Septentrionalis about the period of the birth of Leopold Bloom and of other stars of (presumably) similar origin which had (effectively or presumably) appeared in and disappeared from the constellation of Andromeda about the period of the birth of Stephen Dedalus, and in and from the constellation of Auriga some years after the birth and death of Rudolph Bloom, junior, and in and from other constellations some years before or after the birth or death of other persons,persons: [sic] the attendant phenomena of eclipses, solar and lunar, from immersion to emersion, abatement of wind, transit of shadow, taciturnity of winged creatures, emergence of nocturnal or crepuscular animals, persistancepersistence [sic] of infernal light, obscurity of terrestrial waters, pallor of human beings.

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

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654 His (Bloom’s) logical conclusion, having weighed the matter and allowing for possible error?

That it was not a heaventree, not a heavengrot, not a heavenbeast.heavenbeast, [sic] not a heavenman. That it was a Utopia, there being no known method from the known to the unknown: an infinity, renderable equally finite by the suppositious probable apposition of one or more bodies equally of the same and of different magnitudes: a mobility of illusory forms immobilised in space, remobilised in air: a past which possibly had ceased to exist as a present before its spectatorsfuture spectators [sic] had entered actual present existence.

Was he more convinced of the esthetic value of the spectacle?

Indubitably in consequence of the reiterated examples of poets in the delirium of the frenzy of attachment or in the abasement of rejection invoking ardent sympathetic constellations or the frigidity of the satellite of their planet.

Did he then accept as an article of belief the theory of astrological influences upon sublunary disasters?

It seemed to him as possible of proof as of confutation and the nomenclature employed in its selenographical charts as attributable to verifiable intuition as to fallacious analogy: the lake of dreams, the sea of rains, the gulf of dews, the ocean of fecundity.

What special affinities appeared to him to exist between the moon and woman?

Her antiquity in preceding and surviving successive tellurian generations: her nocturnal predominance: her satellitic dependence: her luminary reflection: her constancy under all her phases, rising, and setting by her appointed times, waxing and waning: the forced invariability of her aspect: her indeterminate response to inaffirmative interrogation: her potency over effluent and refluent waters: her power to enamour, to mortify, to invest with beauty, to render insane, to incite to and aid delinquency: the tranquil inscrutability of her visage: the terribility of her isolated dominant implacable resplendent propinquity: her omens of tempest and of calm: the stimulation of her light, her motion and her presence: the admonition of her craters, her arid seas, her silence: her splendour, when visible: her attraction, when invisible.

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Rh What visible luminous sign attracted Bloom’s, who attracted Stephen’s gaze?

In the second storey (rere) of his (Bloom’s) house the light of a paraffin oil lamp with oblique shade projected on a screen of roller blind supplied by Frank O’Hara, window blind, curtain pole and revolving shutter manufacturer, 16 Aungier street.

How did he elucidate the mystery of an invisible person, his wife Marion (Molly) Bloom, denoted by a visible splendid sign, a lamp?

With indirect and direct verbal allusions or affirmations: with subdued affection and admiration: with description; with impediment; with suggestion.

Both then were silent?

Silent, each contemplating the other in both mirrors of the reciprocal flesh of theirhisnothis fellowfaces.

Were they indefinitely inactive?

At Stephen’s suggestion, at Bloom’s instigation both, first Stephen, then Bloom, in penumbra urinated, their sides contiguous, their organs of micturition reciprocally rendered invisible by manual circumposition, their gazes, first Bloom’s, then Stephen’s, elevated to the projected luminous and semiluminous shadow.

Similarly?

The trajectories of their, first sequent, then simultaneous, urinations were dissimilar: Bloom’s longer, less irruent, in the incomplete form of the bifurcated penultimate alphabetical letter who in his ultimate year at High School (1880) had been capable of attaining the point of greatest altitude against the whole concurrent strength of the institution, 210 scholars: Stephen’s higher, more sibilant, who in the ultimate hours of the previous day had augmented by diuretic consumption an insistent vescical pressure.

What different problems presented themselves to each concerning the invisible audible collateral organ of the other?

To Bloom: the problems of irritability, tumescence, rigidity, reactivity, dimension, sanitariness, pelosity. To Stephen: the problem of the sacerdotal integrity of Jesus circumcised (1st January, holiday of obligation to hear mass

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656 and abstain from unnecessary servile work) and the problem as to whether the divine prepuce, the carnal bridal ring of the holy Roman catholic apostolic church, conserved in Calcata, were deserving of simple hyperduly or of the fourth degree of latria accorded to the abscission of such divine excrescences as hair and toenails.

What celestial sign was by both simultaneously observed?

A star precipitated with great apparent velocity across the firmament from Vega in the Lyre above the zenith beyond the stargroup of the Tress of Berenice towards the zodiacal sign of Leo.

How did the centripetal remainer afford egress to the centrifugal departer?

By inserting the barrel of an arruginated male key in the hole of an unstable female lock, obtaining a purchase on the bow of the key and turning its wards from right to left, withdrawing a bolt from its staple, pulling inward spasmodically an obsolescent unhinged door and revealing an aperture for free egress and free ingress.

How did they take leave, one of the other, in separation?

Standing perpendicular at the same door and on different sides of its base, the lines of their valedictory arms, meeting at any point and forming any angle less than the sum of two right angles.

What sound accompanied the union of their tangent, the disunion of their (respectively) centrifugal and centripetal hands?

The sound of the peal of the hour of the night by the chime of the bells in the church of Saint George.

What echoes of that sound were by both and each heard?

By Stephen:

By Bloom:

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Rh Where were the several members of the company which with Bloom that day at the bidding of that peal had travelled from Sandymount in the south to Glasnevin in the north?

Martin Cunningham (in bed), Jack Power (in bed), Simon Dedalus (in bed), Tom Kernan (in bed), Ned Lambert (in bed), Joe Hynes (in bed), John Henry Menton (in bed), Bernard Corrigan (in bed), Patsy Dignam (in bed), Paddy Dignam (in the grave).

Alone, what did Bloom hear?

The double reverberation of retreating feet on the heavenborn earth, the double vibration of a jew’s harp in the resonant lane.

Alone, what did Bloom feel?

The cold of interstellar space, thousands of degrees below freezing point or the absolute zero of Fahrenheit, Centigrade or Réaumur: the incipient intimations of proximate dawn.

Of what did bellchime and handtouch and footstep and lonechill remind him?

Of companions now in various manners in different places defunct: Percy Apjohn (killed in action, Modder River)River), [sic] Philip Gilligan (phthisis, Jervis Street hospital), Matthew F. Kane (accidental drowning, Dublin Bay), Philip Moisel (pyemia, Heytesbury street) Michael Hart (phthisis, Mater Misericordiæ hospital), Patrick Dignam (apoplexy, Sandymount).

What prospect of what phenomena inclined him to remain?

The disparition of three final stars, the diffusion of daybreak, the apparition of a new solar disk.

Had he ever been a spectator of those phenomena?

Once, in 1887 after a protracted performance of charades in the house of Luke Doyle, Kimmage, he had awaited with patience the apparition of the diurnal phenomenon, seated on a wall, his gaze turned in the direction of Mizrach, the east.

He remembered the initial paraphenomena?

More active air, a matutinal distant cock, ecclesiastical clocks at various points, avine music, the isolated tread of an early wayfarer, the visible diffusion

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Rh little the horrible confusion, for he frequently looked at us all with dark and penetrating glances.

At length this twisted knot disentangled itself again. Euphemie's brother began to recover, the former projects were brought forward again, and my overwhelming passion was compelled to give place by degrees to a calm resignation. This only was the case, for I was determined to make good my supposed rights, until I perceived that the delicate Euphemie must perish in this storm. Lucy at length declared herself for Beauvais, and it was discovered, that his too intimate intercourse with Lacoste was alone the cause of her reserve towards him. The fear had risen within her, that he himself might be inclined to the free-thinking opinions of his rival. So great was her love to her church, that she had resolved, rather to sacrifice her dear betrothed than to live in the proximity of persuasions, which she considered as utterly profane. And


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Rh it is true, the more zealous we were to recognise truth and divinity in one form only, the more did Lacoste seize every opportunity to express his incredulity. Indeed, however miserable he felt within himself, he sought by a certain vanity to avail himself of every occasion to prove his strength of mind in mockery, and in violent bursts of passion, his wretchedness had given such a bitter turn to his feelings, that sometimes he stood amongst us like an inspired prophet of Atheism, used such singular similies and figurative expressions, in a language so touching and elevated, that the pious maidens turned away from him with inward terror.

We had all ceased to weep, we were reconciled and of peaceable, quiet hearts, when Lacoste entered in the midst of our pathetic emotion and religious conversation. Beauvais made known to him what he had learned from Lucy, and that he (Lacoste) must quit our society in order that he might not disturb the happiness of


text: Category:Russian poets

title: Category:Russian poets


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Rh the lovers and their approaching marriage, perhaps even render it impossible. This blow fell unexpectedly on the unfortunate Lacoste; his whole emaciated, care-worn frame trembled violently as if in convulsions, he was unable for a long time to find words, and when at last they flowed from his colourless lips, he tried to persuade us, that such a sentence of banishment from former friends was at least too hard, that he was not able to subdue his passion so quickly, or entirely to get rid of his persuasions, but that he combated both, and would strive against them with still greater energy in our company. But Beauvais was on this day armed with manly courage and resolution, his intercourse hitherto with Lucy had made him too unhappy; he insisted on the immediate departure of the peace-destroyer; the Abbé Aubigny sided with him, the gentle Euphemie was anxious, and Lucy herself the most decided; I also joined in this chorus, and we all unanimously


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Rh, as with one voice, that the godless one should no longer linger near us; it was our duty, the love of Christ itself required of us to banish him, because through his intercourse with us, our religion would be sullied, perhaps even endangered. When Lacoste perceived we were firm in our religious zeal, he left off prayers and humiliations, and a tremendous fury overcame the mortified man, his eyes flashed fire, and he cursed himself and us with the bitterest execrations—that we might never find happiness, that misery might pursue us, that Beauvais might reap nothing but grief and sorrow from this marriage, and that he might live to see calamity, distress, and crime on his dearest children."

Edmond sighed deeply. "Thus," continued the priest, "did the wretched man leave us, and rushed like a madman out of the house; but a short time only was requisite to recall us to our senses, and to penetrate us with a burning shame. In


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Rh the most devout temper of mind, in feelings of the purest love, as we fancied, we had been cruel towards a fellow brother, towards a friend, who deserved forbearance and compassion, although he might have strayed into the path of error. Beauvais was the first to recollect himself, and was angry with himself and all of us; he rebuked us as inquisitors, who condemn in cold blood to the stake all those that differ in opinion with them. A messenger was quickly dispatched to his residence in town, but he had already in his fury departed thence, no one knew whither. He had smashed to pieces everything in the house there, and with his gigantic strength had so ill-used a young waiter, who had attempted to appease him, that the unfortunate lad had been given up to the surgeons as dead. He had so cut his head with tables and chairs that he threw at the defenceless boy and crushed both his legs, that it was doubtful whether he would recover. If we had first been ashamed, we


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Rh would now have concealed ourselves in the caverns of the earth, when we learned that this young lad, bred up in the most ordinary manner, and without any information, as soon as he had recovered his senses, during excruciating tortures from the dressing of his wounds, had prayed to God for the man, who had injured him, that he would forgive and succour the unhappy man, who must have been inexpressibly, infinitely wretched to have been prompted in his sorrow to fall upon an innocent person. Who is the true Christian? we asked ourselves, who the professor of the religion of love? Ah! we were so zealous, we thought we had learned so much, that we were able to teach the profoundest doctrine, we looked down daily with contemptuous pity on those who were less enlightened, who were not susceptible of our sublime emotions,—but now we were forced to confess to ourselves, that we were yet standing on the other side of the commencement; it was just, that we as


text: Talk:United States v. Smith (18 U.S. 153)/Dissent Livingston


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Rh scholars, should be compelled to go for instruction to a young and ignorant waiter at an inn.

"I will conclude. Before my friend had yet celebrated his marriage, my Euphemie took the veil. On the same day, we had thus arranged it, I caused myself to be received into the bosom of her church. At first I intended to become a monk, but as I had delayed, I suffered myself to be consecrated a priest at a distance, and was transferred to this solitary part of the mountains. Since then, I have never heard of my friends, of Euphemie; I even wished to avoid ever seeing them again, that I might not renew the pains of deep, vital wounds. And yet it is but weakness, to turn away from the path of sorrow."—It had become dark, and the two friends repaired to the lighted room, to partake of the little evening meal. The young peasants who had been there before, reentered, and led with them a young and beautiful girl. The latter shewed the pastor the


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Rh flowers and the ornaments, with which they intended on the morrow to adorn the image of the mother of God. "Now, at last," said the young and happy Caspar, "is the time come, reverend sir, that I can lead home my Louison, my bride. You know very well how she desired to spend to-morrow's festival still as a virgin, in order that she might be able to carry our Mary, and sing too. It has been sorrow enough to me, to be compelled to defer my happiness for so long a time; but for once she has persisted in her pious obstinacy. Well, truly it is precious to have such a christian wife, such a holy treasure. All is well, that everything has been so prosperous as yet; for who can tell what evil may come between, when man places his fate on such trials as these, and binds himself to hours and days. However everything is already arranged for the wedding, and all danger and fear is surmounted." "How thou talkest," said the blushing Louison, from whose eyes laughed


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Rh her approaching happiness, and the fulfilment of all her wishes. "I have been friendly to thee for two years past, but must I on that account love the mother of God less? Ah! the history as it has come down to us, is too affecting, and therefore we must be thankful towards her. Look you, my strange young gentleman, before the village stood here, there was nothing far around but field and forest. No vine, no olive-tree was to be found here. Then went a poor wood-cutter, who had come from a distance into the wild forest to cut down a tree for his trade. And as he applied his hatched to it, he heard a sigh, and as he listened, a singing. A light appeared in the gloomy forest, and above in the tree, in the oak trunk, there sat as if in a hollow the mother of God, and commanded him to build a church on that very spot. The man made known the miracle, the wood was cleared, and behind the altar of our church stands still the same old oak trunk, in which the holy


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Rh virgin already dwelt from time immemorial as a testimony and a remembrance. Thus was our good church founded, thus has the village risen, and men have drawn near the beloved spot, for our Mary would not thus dwell in solitude any longer. Look Caspar, thus but for our gracious mother, there would be no house, no man here, and our dear parent's house, and I, and thou would not be in the world, and upon this spot of earth, and for all this must we be thankful to her."

"All well and good," said Caspar, "but just because she is so amiable, she would certainly have granted us with all her heart, our happiness a long while ago. God and the saints are not like us men, who are so ambitious on one little point, that we neglect true honour." "Is it not true, Caspar," said Louison, laughing, "if thy new jacket with shining buttons had not been ready, thou wouldst willingly have deferred the wedding?" Thus laughing and jesting they withdrew again to go and seek


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Rh the clerk with whom they wished to consult how best they might attach the flowers and garlands to the altar. The old man felt happy that his penitents loved to approach him with this child-like confidence, and respected him just as much as a father, while at the same time they fearlessly associated with him in play and merriment. Edmond was grave and melancholy; when it was time to separate to sleep, he abruptly asked the priest, as he grasped his hand: "Well, reverend sir, did you then afterwards in your station find that happiness of which you dreamed in your youth?"

"Happiness," said the old man, "what is it men call thus? and of what avail would their dreams be then, if it were to be met with in reality. I soon saw in the beginning, with bitter sorrow, that I was too enthusiastic, that my companions in the same calling, my superiors, did not partake of my burning zeal; disapproved of it indeed, or declared it heresy and false enthusiasm. They were too much


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Rh about their community, the ensuring of their condition, their infuence in the world, and the binding of souls, to have kindled ardour within them, or to have sought that faith in emotions, which was so necessary to my life. Well, somewhat late, I undertook to examine the teachers of my now abandoned church, and discovered that they were not altogether so inimical to Christianity as I had fancied. I thought that I perceived more and more distinctly that many roads lead to the Lord, and that he, as he himself has promised, has prepared many dwellings in his house. What the innovators, who have split asunder the church, desire, many of the apostles and earlier teachers have already wished. I hope, this disunion will just preserve the eternity of the Word. I also perceived, that to form a spiritual state, to represent a great community, a great deal by far of that enthusiasm of solitude must he checked, if it were only to preserve the constitution


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Rh pure, the strength which alone renders possible that innate spirit of love for the present as well as for the future, and prepares for it an asylum. It was granted to my desire to live here in a small commune, retired from the whole world, almost like a hermit and thus to suffice for myself. I honour the body of our church, and am not angry with it, because it has no spirit; I forgive it the letter, if sometimes it appears to annihilate the spirit, because I trust in the wisdom and love of the Almighty, who thus accomplishes all to his ends."

Thus they separated. Edmond could not sleep. How agitatingly did all this old man’s words work upon him, whom he had so unexpectedly met of whom his father had so often spoken to him in his childhood. He felt troubled, and prayed fervently, that at length this rebellion, which he had been sent forth to excite, might not rage in this valley over the


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Rh head of this peaceful hermit. But he indeed knew best how impossible this was, how inevitable must be the dreadful event. In short slumbers, fearful dreams tormented him, and with the dawn of morning, he hastened over the mountain to Lacoste to send him off to Roland and Cavalier.


text: The Rebellion in the Cevennes/Volume 2/Chapter VIII


text: A Short Biographical Dictionary of English Literature/Campbell, John Francis


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124 as it is still called, to the N.W., the exact position which Tailltiu’s fert or grave-mound occupied with regard to the óenach, according to the Leabhar Gabhala. The great Ring must not be confused, as has been done, with the great circular platform in Telltown which is called the Rathduff or “Black Fort,” and is not named in connection with the sports. There are four ponds or artificial lakes between this Rath and the Lug. The histories and handbooks of the eighteenth and early nineteenth century are silent on this most important site. The phrase “a Telltown marriage” is proverbial in Meath; I heard it among the peasantry round Slane in the same county in 1880-82, and round Navan in 1887. In the thinly peopled Telltown district I only heard of it in the name “the Rath of the marriages.” Our chief authorities are John O’Donovan and Dr. William Wilde, both writing of the period round 1836, when there existed Irish speakers, local sports, and traditions of the god Oengus of the Brugh and of other legendary personages. John O’Donovan nearly always overlooks the fact of early place-names covering a far wider extent than their modern equivalents, and of townlands being split up, sometimes into as many as 4 or 5 divisions. He accordingly asserts, without the least reason, that the “fair” had been “moved from Telltown into Oristown.” The latter name is not found in early records; his derivation of Oristown, from Orientstown, i.e. Rath airthir (the “East fort” of the “Lives” of St. Patrick, certainly at Donaghpatrick Church), is absurd, being really from the Bermingham or “Oris” (mac Feorais, i.e.

title: Page:Folklore1919.djvu/490


text: 1911 Encyclopædia Britannica/Dryander, Jonas


text:
Author:Charles Synge Christopher Bowen

Works

 * contributed to Men of the Time 12th ed.

Judgments
He is credited with coining the phrase "the man on the Clapham omnibus", which was quoted by Sir Richard Henn Collins MR many years after his death in the case of McQuire v. Western Morning News ([1903] 2 KB 100).

 * Harben v Phillips (1883) 23 Ch D 14
 * Hutton v West Cork Railway (1883) 23 Ch D 654
 * Abrath v North Eastern Railway 7 QBD 440
 * Thomas v Quartermaine 18 QBD 685
 * Edgington v Fitzmaurice (1885) 29 Ch D 459, "the state of a man's mind is as much a fact as the state of his digestion", securities-fraud case dealing with false statements of intention
 * Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
 * Vagliano v Bank of England 23 QBD 243, prepared the majority judgment of the court, held wrong in conclusion by the majority of the House of Lords
 * Mogul Steamship Company v McGregor (1889) 23 QBD 598
 * Angus v Dalton 6 App Cas 740

title: Author:Charles Synge Christopher Bowen


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 mac Peirce) family, as other Meath and Dublin names, Monasteroris, Carrickoris, and Ballycoruss, should have shown him.

He heard that the Telltown marriages were celebrated in the Luganeany hollow in Pagan times; “a short distance to the South of this a wall (now a ‘ditch’) was erected and in this was a gateway, in which there was a hole, large enough to admit of a human hand. This was the spot at which marriages were celebrated according to the odd manner following—A number of young men went into the hollow to the North side of the wall, and an equal number of young women to the South side of the wall, which was so high as to prevent them from seeing the men. One of the women put her hand through the hole in the gate and a man took hold of it on the other side, being guided in his choice only by the appearance of the hand. The two who thus joined hands by blind chance were obliged to live together for a year and a day, at the expiration of which they appeared at the Rath of Telton and, if they were not satisfied with each other, they obtained a ‘deed of separation’ and were entitled to go to Leganeany again to try their good fortune for the ensuing year—whence the phrase ‘they got a Tailltean marriage,’ i.e. they took each other for nine (sic) months. The natives of Telton think there was a great deal of fair play in this marriage. . . whether the tradition be right or wrong.”

Now this elaborate description is most closely corroborated, as we shall see, by the Book of Aicill and other ancient law codes of Ireland, unpublished and nearly unknown to scholars when O’Donovan heard this strange tale from the illiterate peasantry. It revolted O’Donovan’s prejudices; he, naturally, doubted that the ascetic Irish Church could have permitted such an abuse, and therefore his testimony of the local tradition is above suspicion. He heard the “fairs” were suppressed 30 years before,

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 * Convention on biological diversity (with annexes). Concluded at Rio de Janeiro on 5 June 1992

 * Authentic texts: Arabic, Chinese, English, French, Russian and Spanish.
 * Registered ex officio on 29 December 1993.

 * Convention sur la diversité biologique (avec annexes). Con- clue à Rio de Janeiro le 5 juin 1992

 * Textes authentiques : arabe, chinois, anglais, français, russe et espagnol.
 * Enregistrée d'office le 29 décembre 1993.


text: Index:Convention on Biological Diversity.djvu


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 EXTRACTS FROM PRESS NOTICES.


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 EXTRACTS FROM PRESS NOTICES—continued.


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126 i.e. 1806. This is correct, for I do not find them in almanacks after 1807, which is probably a heedless repetition from the previous year. Wilde, whose local knowledge of tradition covers, and evidently precedes slightly, the same period as O’Donovan’s, says the marriages had been stopped in 1770.

The “fair” of Oristown was held on May 1st (Belltaine) in 1678, but on May 13th and Oct. 11th, once as late as Oct. 14th, in the eighteenth century, through which I have traced it from the reign of George II. A pattern (without, however, a patron saint) was held in Martry, just over the stream near Telltown, on Aug. 1st, the actual Lugnasad, as O’Donovan was told. Perhaps the marriages were held the same day at Oristown and not at the time of the statutory fair. Wilde, as I said, with personal local knowledge, accepts the tradition of 1836, which he published in 1849; he often witnessed sports in Meath when a boy, but only adds to O’Donovan’s accounts that the man took the woman by the little finger. He, however, places the marriages in the fosse of the great Ring (as Eugene Conwell heard in 1864 and as the modern name implies), the couples walking south. After the great famine of 1845 Leinster tradition died out or got confused, so later versions carry but little, if any, weight, either as told to Conwell or, still more, in my time.

Now O’Donovan’s difficulty as to the connivance of the Church will carry little weight with students of folk custom. Undoubted pagan rites and rhymes, obscene games and acts, handfasting, necromancy and such-like have never been suppressed. Public opinion easily condones old

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 abuses and vested nuisances. The ancient ethics of Ireland, though the natives were free from the more revolting forms of vice, were very lax as to what the Church taught as to affinity and the sanctity of marriage. Despite all bowdlerizing by late clerics, connections of parents and children, and brother and sisters, abound in the early tales. Let it suffice to refer to the tales of Fiacha Fermara, son of Oengus of Tara (like Guortighern in Britain); to Cairbre Musc and his sister or daughter Duben; to Conchobar and his sister Ness; to Lug and Daire, children of Finn; to Clothra, who married her three brothers in succession; to Mac Lugach and Bresal, son of Bodibad; nay more, if the Life of St. Ciaran be true in its statement, to St. Senan’s mother’s marriage with two brothers—she being a Christian. This confirms Caesar’s and Strabo’s allegations (so bitterly resented by old school Irish antiquaries) and those of Jerome and Benedict, “cognatas suas germanas habere solebant sibi uxores,” and indeed to some degree that of Giraldus, “non incestus vitant.” In fact, in certain religions these marriages were sacrosanct, and, where the father and his sons were regarded as not akin to the daughters and sisters, they were fully permissible. Much more was this true of mere irregularity in the forms of marriage, separation, divorce and even polygamy. Diarmuid, a nominally Christian High King, about A.D. 550, brought

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150

 * The Contracting Parties.

 * Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components.

 * Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere.

 * Affirming that the conservation of biological diversity is a common concern of humankind.

 * Reaffirming that States have sovereign rights over their own biological resources,


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 his two wives to the Óenach of Tailltiu and the chaste and holy Ciaran restored the lost hair of one of them. “Plerique illorum quot volebant uxores habebant,” says Benedict; “the wife on the neck of the chief wife” was lawful bigamy in the Irish laws, and the marriage relations of King Brian Boroimhe, a veritable pillar of the Faith, left much to be amended.

I touch on the Ancient Laws with the utmost diffidence. No critical text of these most obscure documents has been prepared, and the translations are recognized as often doubtful and sometimes incorrect. Howbeit—though we are told St. Patrick and other Christian clerics expurgated them—we find statements apparently allowing connections for a year like the “Telltown marriages.” A woman when put away was entitled to a share of what she had made; if repudiated at Belltaine, to two-thirds of a ninth part, if at Samhain to one-third of an eighty-first part. She could claim a sack of the corn and bacon she had prepared “for every month she was with her mate to the end of the year, i.e. the next Belltaine day—for this is mostly the time for which they make their separate connection.” The Book of Aicill mentions an agreement “to remain together from Belltaine to Belltaine.” Uisnech was like Tailltiu, “marriages were broken off and new ties formed, judgements given and laws amended”; in fact, if the Church failed to ward the sacramental sanctity of marriage, the old Irish Law and public opinion gave it little, if any, help.

Even so late as 1335 Pope Benedict III. denounced certain persons in Ireland “acting according to the rites and sects of gentiles and pagans.” In the face of all this testimony it seems impossible to doubt that, down to times well remembered by the peasantry, Telltown was a

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 recognized centre for irregular pagan marriages of short duration.

4.

We can only very briefly abstract all that shows what other rites were celebrated at this great Celtic and pre-Celtic sanctuary. As we saw, the real centre of the ceremonies is the god Lug and his marriage with Eriu. The allegation that children were sacrificed at Tailltiu, it is true, rests on a mistranslation of a corrupt text, “burning of the first fruits, or chief descendants,” being really “burnings of empty steadings.” Prof. Gwynn renders it “The three havocs which Patrick forbade in it (Tailltiu), stealing of oxen in the yoke, killing of cows in milk, burning of empty steadings”—some add “not a primitive tradition” or “round a noble family.” Nevertheless, in face of the exuberance of human sacrifice among the Celts of Gaul and Britain and the cases of it in Ireland —the man sacrificed at Emania; the children at Tara and before the pillar of Crom (or Cenn) Cruach (perhaps a Christian nickname for Lug) and the substituted killing of swine at the foundation of Dun Fidne, about A.D. 580, not to speak of the children given to be devoured by the mountain goddess Echtge, almost necessitates a belief that Tailltiu was defiled by these horrible rites. Such Irish sacrifices, denied so angrily by Dr. Joyce and other advocates in Ireland, and also the allegations that there was

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Author:Thomas Nelson Annandale

Works

 * (with Robinson H. C.) Fasciculi Malayenses: Anthropological and Zoological Results of an Expedition to Perak and the Siamese Malay States (1903).
 * The Faroes and Iceland: studies in island life. (1905).
 * (with Gravely F. H.) “The limestone caves of Burma and the Malay Peninsula, Part II: The fauna of the caves”. Journal and Proceedings of the Asiatic Society of Bengal (1914). (ns) 9 (10) for 1913: pp. 402-423.
 * (with Prashad B. & Amin-ud-Din) “The Aquatic and Amphibious Molluscs of Manipur.” Records of the Indian Museum (1921). 22 (4): pp. 528–632
 * (with Prashad B. & Amin-ud-Din) “The Aquatic and Amphibious Molluscs of Manipur.” Records of the Indian Museum (1921). 22 (4): pp. 528–632

title: Author:Thomas Nelson Annandale


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 CHAPTER II

Circa B.C. 55—A.D. 410

A GREAT CIVILISATION

ITH the invasion of Julius Cæsar and the occupation of England by the Romans a hundred years later, a very highly developed civilisation was brought to our shores. And though we no longer regard the dwellers in this land at that period as half-naked savages, painted blue and madly hurling immense stones at the orderly Roman legions as they endeavoured to step on to British soil, yet there is no doubt the newcomers were very far in advance of the inhabitants of the island they sought to conquer. 15


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 Arrayed in short tunics of cloth or linen, with bare heads and legs, armed with broadswords and lances, standing in war-chariots drawn by well-trained ponies accustomed to the roughest country, each tribe under its own chief—these ancient Britons gallantly defended their land against the foreign foe. But very different were the organised legions against which they had to fight Each Roman soldier was armed with a well-tempered blade of steel, each head was protected by a lofty-crested helmet, while mail breastplates, greaves, and shields embossed with plates of iron, completed the equipment. Commanded by men chosen for their military skill, it is small wonder that they conquered the British tribes, even as those very British tribes—the Celts—had triumphed over the Iberians of old by means of a superior metal weapon.

The Britons fought with true courage, and for the first time in this land's social history we get glimpses of individual heroes rejoicing in elaborate names, few of which are less than four syllables. Stronger than his fellow's, Cassivelaunus, King of the Catuvelauni, keeps a large tract of country* free from the Roman, while his descendant Cunobelinus—the Cymbeline of Shakspere—


text: 1911 Encyclopædia Britannica/Ras

title: 1911 Encyclopædia Britannica/Ras


text: 1911 Encyclopædia Britannica/Rascal

title: 1911 Encyclopædia Britannica/Rascal


text: 1911 Encyclopædia Britannica/Rashbam

title: 1911 Encyclopædia Britannica/Rashbam


text: 1911 Encyclopædia Britannica/Dryburgh Abbey


text: 1911 Encyclopædia Britannica/Rashi

title: 1911 Encyclopædia Britannica/Rashi


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Rh defends his stronghold of Camalodunum, on the site of our modern Colchester, as some maintain. The defence of the old country was carried on by his son Caractacus, the stirring account of whose defeat and subsequent appearance in Rome are well known. Women, too, sprang up to defend the land against Roman invaders, and amongst them we get a mention of one of the first-named Queens in old British history. A glimpse of her conduct illumines for a moment these barbaric times.

Boadicea, the widowed Queen of Prasutagus, King of the Iceni tribe, inhabiting Norfolk, burned with indignation at the insults offered to herself and her daughters by the Roman governors. Her own fierce courage inspired her people, and she proudly led the tribes, over which she still held sway, against Colchester, the headquarters of the Romans in the east. Her ranks were soon swollen by other discontented Britons, until she found herself at the head of something like 80,000 native warriors. A vivid picture of the Queen before the battle has been handed down by a Roman historian, as, standing up in her war-chariot, where sat her weeping daughters, her bare arms raised on high, her long, yellow


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18 hair floating over her shoulders, from which hung a tunic of many colours, her golden necklace and bracelets glistening in the sun, she resolutely addressed her faithful troops: "Not as a Queen, the descendant of noble ancestors, possessed of great riches and wealth, but as one of the community, I lead you to avenge the loss of our liberty. The Roman army now opposed to us will never stand the shouts and clamour of so many thousands, much less their shock and fury. To-day, we conquer or we die. This is the last resource for me—a woman. Let the men live—if they please—as slaves." The angry hosts made their way to Colchester, which was, as yet, unwalled, burst in and slaughtered the Romans with savage fury, and hastened on to further destruction. It was not until the Roman Governor himself advanced against the British Queen that the massacre was stopped, and at the last it is said that some 80,000 Britons lay dead on the battlefield, including women and children. The tragic end of Boadicea, by suicide, throws a lurid light on her strength of character. Impulsive and fearless, with a passionate love of liberty,


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Talk:The Six Books of Proclus, the Platonic Successor, on the Theology of Plato/Book III

How come the text jumps from chapter III to IX? I think it should be corrected in IV and so on...


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 Rh we learn that in those days of small opportunities there were women of this type in early Britain, a type which survived the Roman assimilation as well as the Teutonic invasions that swept over the country in later days. The conquest more or less complete, the Romans found it easy to introduce into the newly acquired country all that had made life comfortable in their far-off Italian homes. Their first great work was to convert the old British tracks into broad military highways, thus enabling their soldiers to march easily from one end of the island to another, as well as simplifying commercial intercourse. These roads were carried over the rivers by an extensive system of bridges built of timber on stone piers. Distances were made known by means of milestones, which were stone pillars on which were engraved the distance in numbers, the places between which the road extended, the name of the constructor, and the Roman Emperor in whose reign the stone was erected. At regular intervals of a day's journey were posting stations, where refreshments were obtainable. Indeed, the County Councillor of to-day might well make a study of the very complete system of road communication


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 no evidence for sun worship among the Irish (in face of its severe denunciation by St. Patrick in the Confessio and the unmistakable worship of Lug as sun god) may be passed by as unnecessary to refute. Perhaps we have, as I ventured to suggest early in this paper, an ancient hymn to Lug—“Master of all the sciences, Lug, like the sun is the splendour of his face. He rides on Manannán’s steed (the waves), swift as the wind of spring. What else than the Sun is it? This is the radiance of Lug Lamhfada.” Perhaps it was sung by the druids at the very Lugnasad of Tailltiu. The god was probably the most dangerous opponent of Christ in the days of Patrick, and well might the Apostle of the Irish write: “the Sun shall not reign for ever nor shall its splendours continue, and woe to its unhappy worshippers.”

After the “Servile Revolt,” probably where the first faint dawn of historic legend begins in Ireland, King Tuathal Techtmhar, in his restoration of the Celtic monarchy and its chief sanctuaries, re-established the fire festival of Lugnasad and its sacred fire at Tailltiu. We may pass over the euhemerist attempt to discredit the Celtic pantheon by “giving gods to the gods” and making the Milesians defeat and slay the gods of the Tuatha Dé (their own gods) MacGreine, MacCuill and MacCethoir at Tailltiu. The

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1911 Encyclopædia Britannica/Rashtrakuta

RASHTRAKUTA, an Indian dynasty which ruled in the ../Deccan/ (q.v.) from about A.D. 750 to 973. The Rashtrakuta or Ratta clan are supposed to have held power during the historical blank before the 6th century; but they came to the front in A.D. 750, when Dantidurga overthrew the Chalukya dynasty and made himself ruler of the Deccan. He was succeeded by his uncle Krishna I. (c. 760), who completed his conquests, and whose reign is memorable for the execution of the Kailasa, the rock-cut temple at Ellora. His grandson Govinda III. (780-815) extended the power of the family from the Vindhya Mountains and Malwa on the north to Kanchi on the south. The next king, Amogavarsha, reigned for sixty-two years. The reign of Krishna III. was remarkable for a war with the Cholas, in which the Chola king was killed on the field of battle in 949. The last of the Rashtrakuta kings was Karka II., who was overthrown by the Chalukyas in 973.


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20 by the Roman of old. The roads were the property of the State, which had entire control and supplied funds for their construction and maintenance. Each main line of road was under an inspector-in-chief, who held an important office, one filled by many a Roman princeling of repute. Nevertheless we get glimpses of fraudulent contractors and negligent magistrates prosecuted for the bad condition of the roads, which were finally so well constructed that many of them remained in England till the sixteenth century. It is interesting to note that the country roads were under the control of the rural authorities, maintained by assessments, and that the city streets had to be repaired by the inhabitants, each householder being responsible for the portion immediately opposite his own house. On or near the great main roads which freely intersected the island were the famous walled towns of the Romans. Boadicea had taught them a lesson at Colchester, and henceforth every city of repute was strongly walled, however advantageous its natural position. These walls were tremendously strong, for amid their many accomplishments the Romans were excellent masons.


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 Rh With tiles and bricks and well-cut stone bound together with durable mortar, they built, not for a day, but for eternity, and many of their weather-beaten walls have already stood the storm and stress of 1400 years. The towns were approached by gateways with rounded arches, inside which the streets were determined by the form of the Roman camp or of a British town. They had their public buildings like a miniature Rome: each had its temple, its theatre, its court of justice, and its public baths. With regard to the latter it may be instructive to remark that when the Roman civilisation was swept away in the fifth century, it took Englishmen 1400 years to re-learn the lesson that it is necessary to provide public baths for the inhabitants of our large cities. This, initiated in 1846, is but partially fulfilled now. The construction of the Roman villa is too well known to need repetition here. How badly these foreigners from the sunny South felt the damp and cold of our island home is revealed by the elaborate warming apparatus in their houses as well as in their bath-rooms. The floors of their largest sitting-rooms were supported on rows of short thick pillars. This space was filled with heat issuing from a furnace without, which also


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Rh “chronologers” give us a liberal margin as to the date, B.C. 1569, 1545, 1399, 1229, 1066, 1071, 554 or 331, and credulous writers still select and believe some one of these! Tailltiu is seen by Cu Chulaind, but has no place in his legends. The Tain bo Cualnge tells how a great-grandson of Conall Cernach (Iliach or Amairgen) drives certain warriors over it northward. The “Will of Cathaoir mór” says that his son Fiacha shall enlarge Tailltiu. The High King Dathi about A.D. 422 celebrated the Tailltiu óenach with unusual splendour in a vain attempt to propitiate the gods before his raid into Gaul. St. Patrick, after his visit to Tara, purified the Oenach Tailltinn “Taltenam ubi fit agon regale.” He won over the sons of Nial and built Donaghpatrick Church in a fort near Tailltiu. We have already alluded to King Diarmuid’s celebration (539-567); he “held the óenach of Uisneach at Belltaine, that of Taillti at Lugnasad, and that of Tara at Samhain,” putting anyone to death who transgressed these solemnities, as a pagan monarch might have done. No wonder that the Church has drawn his picture in such dark colours in its tale of the cursing of Tara. He also held a special convention, “the men of Erin sitting on the benches of the Assembly ground” (such scaffolds being provided under the Ancient Laws), he and his two wives sitting there in state. Even such foolish tales as how Ambacuc swore falsely at Tailltiu, with St. Ciaran’s crozier round his neck, and how his head fell off, how he lived in this

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22 fed the flue pipes introduced into the walls. Thus the houses were well warmed, though no fireplace or heating arrangement was visible, and it is interesting to note that, for warming the last and newest Sanatorium in England, this system has been adopted. The floors were elaborately pieced together in mosaic. The foundation was composed of concrete, made of pounded lime and bricks, sometimes nearly a foot thick. The mosaic patterns were composed of cubes of various colours in stone, terra-cotta or glass. Thus the floors were fire-proof, durable, beautiful, and easy to clean.

Not only was there a feeling for warmth and cleanliness among the Romans and Romanised British, but sanitary arrangements were carefully made. There was a regular water supply: large leaden mains were laid under the paving of the streets, branching off to the houses. These led to cisterns, from which descending supply pipes were laid on to various parts of the house, as in our systems of to-day. Neatly finished watercocks and draw-taps facilitated the supply, while the turncocks in the mains had movable key handles which rivalled those in modern use.


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Rh And the people who lived in these well-equipped houses: what of them? Their dress was at once simple and serviceable. They rejoiced in the yellow cloth toga of Roman fame, a semicircular garment with folds ample enough to cover the head in bad weather. Though worn in its natural colour for the most part, various officials had the toga bleached, while in times of mourning it was dyed black. Later the toga gave way to the tunic, women wearing theirs long and adorned with fringe. But the only part of Roman dress that has descended to us entire is the leathern shoe or sandal. This was often of superb workmanship, rich in ornament, and proportionately costly to buy. The soles were cut for right and left feet, as they are to-day.

Some maintain that, unlike the Britons, the Romans ate little beef or mutton. As a medicine, roast beef or beef tea was used, but not as food. Poultry, originally brought from Rome, fish and game, pork and venison, were the food of the wealthy, while the more common food consisted of vegetables flavoured with lard or bacon. The following record of a Roman supper party is illuminating. The first course consisted of


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132 condition for many years and had a son! shows how dear Tailltiu was to the Irish mind. Miracles sometimes, however, become realities; three “aerial ships sailed over Tailltiu óenach” during the visit of Murchad, son of Domnall. A similar sight was there during the War when we were returning from Tailltiu at the time when the enemy’s line was broken in July, 1918; but by that time the wonder had become commonplace!

I will not repeat the many extracts of the Annals telling of the Óenach, but will summarise the principal. It was visited by St. Patrick at the dawn of Christianity, 434, and there was a tale how he promised that no one should be slain at it. This was broken in a riot in 716 and 790, when it was the scene of a violent battle. This was a blow from which the Oenach never recovered; its inviolability was gone for ever. It was ravaged by the King of Connacht (though his army “fled like goats” before King Aed), 807. In 810 the clerics of Tamlacht, near Dublin, who had been plundered by the Ui Neill, went and prohibited (banned) the games, “so neither horse nor chariot arrived”; they were paid a large indemnity. In 826 it was destroyed and many slain in a raid. In 830 a disturbance broke out, round the very forad, or President’s seat, and the shrines of MacCuilind and St. Patrick, which the clerics used to exhibit there; so many

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24 sea-hedgehogs, raw oysters, and asparagus; then came a fat fowl, more oysters and shell-fish with dates, roebuck, and wild boar. The third course was made up of wild boar's head, ducks, a compôte of river birds, hare, and cakes resembling our modern Yorkshire pudding.

Here is a Roman receipt called "Pig with Stuffing":—

"Clean out interior of pig and fill with the following stuffing. Pound an ounce of pepper, honey, and wine, make it hot; break a dry biscuit into bits and mix. Stir with a twig of green laurel and boil until the whole is thickened. Fill the pig with this; skin, stop up with paper, and put it into the oven to bake."

Receipts for boar and pig are numerous, for pork was a passion with the Romans. They would feed their pigs on figs and cook them with fifty different savours, for the Roman "cook was a poet."

Their fancy bread contained oysters, and was sold at about three shillings a peck loaf. Nor must it be forgotten that the Romans introduced into this country cherries, peaches, pears, mulberries, figs, damsons, medlars, quinces, walnuts, and vines. They likewise brought over


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Rh the first fallow deer, pheasants, geese, fowls, and rabbits, while there were no limes, planes, sycamores, or sweet chestnuts before the Roman occupation. They established extensive pottery works in various parts of the island; specially famous were those which stretched some twenty miles along the banks of the river Medway, where at least 2,000 men were employed. They must have astonished the ancient Britons by the beauty and ingenuity of their work in this as in many other branches of industry, and one can imagine their surprise at the Roman looking glass of polished metal, tooth combs, padlocks, thimbles, baby's bottles, glass jugs, &c. These civilised peoples taught the ancient Briton to write letters on tablets covered with wax with pointed bronze pens. The letter finished, the tablet was closed, tied with thread, and sealed. It was then despatched by hand to the person to whom it was addressed. Having read the message, he rubbed it out, wrote the answer on the same tablet, and returned it. But, with all their advanced civilisation, the amusements of the Romans were horribly cruel. One of their great delights was to set fierce


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26 animals to tear one another to pieces—not only bears and bulls, but elephants, tigers, giraffes, and even serpents. Three or four hundred bears might be killed in a single day. Criminals would be thrown to maddened bulls—"butcher'd to make a Roman holiday"; possibly in Britain also. As in the case of the Stone Man and the Celt, we look into the tombs of the dead to learn the manners and customs of the living. The Romans dealt with their dead either by cremation or burial in wooden, clay, or lead coffins placed in stone sarcophagi The Christian ideal was dawning slowly, and the old superstition was still deeply rooted in the minds of the people that articles of various kinds buried in the tombs would add to the comfort of the departed spirits. The dead were clothed in full dress with their jewels and personal ornaments, while in their mouth was placed a coin for the payment of Charon, the ferryman of the nether regions. Often wine and food were placed on or near the coffin, and the idea of action in the future life is manifested by the attention paid to the sandals, which were invariably placed by the dead body. Pathetic enough are the Latin inscriptions on some of the little tombs:


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Rh died. Three persons were struck by lightning at the Assembly in 856, and the strange story of a mysterious explosion, which blew part of a cross to Tailltiu ten years before, must have added to a sense of insecurity. At last, in 872, for the first time in tradition, the Assembly was discontinued. Futile attempts were made to re-establish it in 898, by Diarmaid, son of Cerball; in 916 by Niall, King of Tara; and perhaps by King Donchad in 925, when the Dub óenach was stopped; in 1006, by King Mael Sechlainn, after eighty years’ disuse (his rival, King Brian, visited the place two years before, but had not attempted to hold a meeting) and lastly, after 114 years, Ruadri, the last monarch of Ireland, appropriately closed its official history by a huge gathering (the crowds covering the country for several miles) in 1166. The artificial renewals naturally died out when the Normans occupied the country, though some sort of customary sports were kept up by their tenants. Otherwise the last trace of a forgotten god and discredited social system disappeared.

Unlike the instructive details in the poem on the great sister Assembly of Carmun, we find little as to the sports and etiquette at Tailltiu. The chariot races and horses are named in many sources, notably in 810, and in Cormac’s Glossary a century later. The coursers still ran in 1550, and a bard frequented the place so late as 1571 and played the harp. Sacred fires were lit, judgments were given, offences against the solemnities were punished with death, even in the sixth century, and we hear of a fine for cutting a gap in the grave (mound) of a chief at Suidech na Taillten,

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Rh

Or again:

The traces of Christianity are of the scantiest description. Nevertheless, to the Romans we owe the organisation of Christianity in our country, for they never forgot the distant province they had governed for over three hundred years, and when the time was ripe, they sent their little band of Benedictine monks to teach their brethren beyond the seas that Gospel that they themselves had learnt to love. At last Rome called her legions home to defend their own country from the barbarians already knocking at her gates. And the Romans hurried from their island home in England to


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28 obey the call of duty. They left their splendid roads and bridges, their walled cities, luxurious villas and spacious baths, their extensive mines and manufactures, their temples and Christian churches, and the little lonely graves of their dead. Yet something of despair seized the Romanised Britons as the last shiploads of Roman invaders waved farewell. They had grown to depend entirely on their conquerors for municipal government and defence along the Saxon shore, and three centuries of official protection had sapped away the very strength of their manhood and the vigour of their independence. True, the wealth of the island had grown rapidly during the Roman occupation, which had secured three centuries of unbroken peace: her mineral resources had been explored; commerce had increased everywhere, owing to improved communication; agriculture had been developed until, after supplying her own needs, England could export corn in considerable quantities to other lands; and cities had sprung up connected by an elaborate network of roads. But all these developments were necessarily costly, and the land was crushed by a heavy system of taxation.


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Rh At the same time, though doubtless Britain was a more comfortable place to live in than of yore, the old tribal patriotism had vanished under the despotism of the Roman government. The Britons were not called on to defend their land; thus there was no national organisation, no cause to call forth the sacrifice of life, so potent a factor in the vigour of a nation. Hence a certain dependence and effeminacy characterised the people, and no sturdy patriots of the Caractacus and Boadicea type are forthcoming at this period of the nation's social history.

Most of the advanced Roman civilisation was swept away wherever the barbaric Saxon secured a footing, but much remains to this day.

Do not all our months bear Latin names, July and August perpetuating the great Julius Cæsar and Augustus Cæsar? Do not our pennies bear the stamp of the Roman Britannia? Did not the Roman teach us to put on mourning for our dead? They discovered our oyster-beds, they constructed our roads, they bridged our rivers. To use the words of a modern historian: "Rome left few traces on our language, none on our early laws, little on our


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 Rh KATIE WOODENCLOAK.

on a time there was a King who had become a widower. By his Queen he had one daughter, who was so clever and lovely, there wasn't a cleverer or lovelier Princess in all the world. So the King went on a long time sorrowing for the Queen, whom he had loved so much, but at last he got weary of living alone, and married another Queen, who was a widow, and had, too, an only daughter; but this daughter was just as bad and ugly as the other was kind, and clever, and lovely. The stepmother and her daughter were jealous of the Princess, because she was so lovely; but so long as the King was at home they daren't do her any harm, he was so fond of her.

Well, after a time he fell into war with another King, and went out to battle with his host, and then the step-mother thought she might do as she pleased; and so she both starved and beat the Princess, and was after her in every hole and corner of the house. At last she thought everything too good for her, and turned her out to herd cattle. So there she went about with the cattle, and herded them in the woods and on the fells. As for food, she got little or none, and she grew thin and wan, and was always sobbing and sorrowful. Now in the herd there was a great dun bull, which always kept himself so neat and sleek, and often and often he came up to the Princess, and let her pat him. So one day when she sat there, sad, and sobbing, and sorrowful, he came up to her and asked


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30 blood, but … wherever a civilised language is spoken, men think in the forms and speak the grammar, reason on the principles, and are judged and governed according to the standards of law and good government, which have descended to them from Imperial Rome." So that to-day we are all, "in the best sense of the word, children of the Roman Empire."


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 358 her outright why she was always in such grief. She answered nothing, but went on weeping.

"Ah!" said the Bull, "I know all about it quite well, though you won't tell me; you weep because the Queen is bad to you, and because she is ready to starve you to death. But food you've no need to fret about, for in my left ear lies a cloth, and when you take and spread it out, you may have as many dishes as you please."

So she did that, took the cloth and spread it out on the grass, and lo! it served up the nicest dishes one could wish to have; there was wine too, and mead, and sweet cake. Well, she soon got up her flesh again, and grew so plump, and rosy, and white, that the Queen and her scrawny chip of a daughter turned blue and yellow for spite. The Queen couldn't at all make out how her stepdaughter got to look so well on such bad fare, so she told one of her maids to go after her in the wood, and watch and see how it all was, for she thought some of the servants in the house must give her food. So the maid went after her, and watched in the wood, and then she saw how the stepdaughter took the cloth out of the Bull's ear, and spread it out, and how it served up the nicest dishes, which the stepdaughter ate and made good cheer over. All this the maid told the Queen when she went home.

And now the King came home from war, and had won the fight against the other king with whom he went out to battle. So there was great joy throughout the palace, and no one was gladder than the King's daughter. But the Queen shammed sick, and took to her bed, and paid the doctor a great fee to get him to say she could never be well again unless she had some of the dun bull's flesh to


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 Rh eat. Both the King's daughter and the folk in the palace asked the doctor if nothing else would help her, and prayed hard for the Bull, for every one was fond of him, and they all said there wasn't that Bull's match in all the land. But no; he must and should be slaughtered, nothing else would do. When the King's daughter heard that, she got very sorrowful, and went down into the byre to the Bull. There, too, he stood and hung down his head, and looked so downcast that she began to weep over him.

"What are you weeping for?" asked the Bull.

So she told him how the King had come home again, and how the Queen had shammed sick and got the doctor to say she could never be well and sound again unless she got some of the Dun Bull's flesh to eat, and so now he was to be slaughtered.

"If they get me killed first," said the Bull, "they'll soon take your life too. Now, if you're of my mind, we'll just start off, and go away to-night."

Well, the Princess thought it bad, you may be sure, to go and leave her father, but she thought it still worse to be in the house with the Queen; and so she gave her word to the Bull to come to him.

At night, when all had gone to bed, the Princess stole down to the byre to the Bull, and so he took her on his back, and set off from the homestead as fast as ever he could. And when the folk got up at cockcrow next morning to slaughter the Bull, why, he was gone; and when the King got up and asked for his daughter, she was gone too. He sent out messengers on all sides to hunt for them, and gave them out in all the parish churches; but there was no one who had caught a glimpse of them. Meanwhile,


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360 the Bull went through many lands with the King's daughter on his back, and so one day they came to a great copper-wood, where both the trees, and branches, and leaves, and flowers, and everything, were nothing but copper.

But before they went into the wood, the Bull said to the King's daughter,—

"Now, when we get into this wood, mind you take care not to touch even a leaf of it, else it's all over both with me and you, for here dwells a Troll with three heads who owns this wood."

No, bless her, she'd be sure to take care not to touch anything. Well, she was very careful, and leant this way and that to miss the boughs, and put them gently aside with her hands; but it was such a thick wood, twas scarce possible to get through; and so, with all her pains, somehow or other she tore off a leaf, which she held in her hand.

"AU! AU! what have you done now?" said the Bull; "there's nothing for it now but to fight for life or death; but mind you keep the leaf safe."

Soon after they got to the end of the wood, and a Troll with three heads came running up,—

"Who is this that touches my wood?" said the Troll.

"It's just as much mine as yours" said the Bull.

"Ah!" roared the Troll, "we'll try a fall about that."

"As you choose," said the Bull.

So they rushed at one another, and fought; and the Bull he butted, and gored, and kicked with all his might and main; but the Troll gave him as good as he brought, and it lasted the whole day before the Bull got the mastery; and then he was so full of wounds, and so worn out, he could scarce lift a leg. Then they were forced to


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Rh stay there a day to rest, and then the Bull bade the King's daughter to take the horn of ointment which hung at the Troll's belt, and rub him with it. Then he came to himself again, and the day after they trudged on again. So they travelled many, many days, until, after a long long time, they came to a silver wood, where both the trees, and branches, and leaves, and flowers, and everything, were silvern.

Before the Bull went into the wood, he said to the King's daughter,—

"Now, when we get into this wood, for heaven's sake mind you take good care; you mustn't touch anything, and not pluck off so much as one leaf, else it is all over both with me and you; for here is a Troll with six heads who owns it, and him I don't think I should be able to master."

"No," said the King's daughter; "I'll take good care and not touch anything you don't wish me to touch."

But when they got into the wood, it was so close and thick, they could scarce get along. She was as careful as careful could be, and leant to this side and that to miss the boughs, and put them on one side with her hands, but every minute the branches struck her across the eyes, and, in spite of all her pains, it so happened she tore off a leaf.

"AU! AU! what have you done now?" said the Bull. "There's nothing for it now but to fight for life and death, for this Troll has six heads, and is twice as strong as the other, but mind you keep the leaf safe, and don't lose it."

Just as he said that, up came the Troll,—

"Who is this," he said, "that touches my wood?"

"It's as much mine as yours," said the Bull.

"That we'll try a fall about," roared the Troll.


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 362 "As you choose," said the Bull, and rushed at the Troll, and gored out his eyes, and drove his horns right through his body, so that the entrails gushed out; but the Troll was almost a match for him, and it lasted three whole days before the Bull got the life gored out of him. But then he, too, was so weak and wretched, it was as much as he could do to stir a limb, and so full of wounds, that the blood streamed from him. So he said to the "King's daughter she must take the horn of ointment that hung at the Troll's belt, and rub him with it. Then she did that, and he came to himself; but they were forced to stay there a week to rest before the Bull had strength enough to go on.

At last they set off again, but the Bull was still poorly, and they went rather slow at first. So to spare time the King's daughter said as she was young and light of foot, she could very well walk, but she couldn't get leave to do that. No; she must seat herself up on his back again. So on they travelled through many lands a long time, and the King's daughter did not know in the least whither they went; but after a long, long time they came to a gold wood. It was so grand, the gold dropped from every twig, and all the trees, and boughs, and flowers, and leaves, were of pure gold. Here, too, the same thing happened as had happened in the silver wood and copper wood. The Bull told the King's daughter she mustn't touch it for anything, for there was a Troll with nine heads who owned it, and he was much bigger and stouter than both the others put together, and he didn't think he could get the better of him. No; she'd be sure to take heed not to touch it; that he might know very well. But when they got into the wood, it was far thicker and closer than the silver wood, and the deeper they went into


text: The works of William Blake, poetic, symbolic and critical/2/The Everlasting Gospel


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ASCINATING is the story of the Saxon conquest, but perhaps even more fascinating is that of the Saxon settlement, with all its latent germs of our social life to-day. Though for the moment the desertion of Britain by the Romans seemed an irretrievable calamity, yet, looking back across the ages of time, we cannot but note with gratitude the influx of those hardy tribes from the shores of the wild North Sea, who were destined to be the forefathers of a race which plays a part in the world to-day wholly disproportionate to the size of its home.


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 Rh it the worse it got. The wood went on getting thicker and thicker, and closer and closer; and at last she thought there was no way at all to get through it. She was in such an awful fright of plucking off anything, that she sat, and twisted and turned herself this way and that, and hither and thither, to keep clear of the boughs, and she put them on one side with her hands; but every moment the branches struck her across the eyes, so that she couldn't see what she was clutching at; and lo! before she knew how it came about, she had a gold apple in her hand. Then she was so bitterly sorry she burst into tears and wanted to throw it away; but the Bull said she must keep it safe and watch it well, and comforted her as well as he could; but he thought it would be a hard tussle, and he doubted how it would go.

Just then up came the Troll with the nine heads, and he was so ugly, the King's daughter scarcely dared to look at him.

"" he roared.

"It's just as much mine as yours," said the Bull.

"That we'll try a fall about," roared the Troll again.

"Just as you choose," said the Bull; and so they rushed at one another, and fought, and it was such a dreadful sight the King's daughter was ready to swoon away. The Bull gored out the Troll's eyes, and drove his horns through and through his body, till the entrails came tumbling out; but the Troll fought bravely; and when the Bull got one head gored to death, the rest breathed life into it again, and so it lasted a whole week before the Bull was able to get the life out of them all. But then he was utterly worn out and wretched. He couldn't stir a foot, and his body was


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 364 all one wound. He couldn't so much as ask the King's daughter to take the horn of ointment which hung at the Troll's belt, and rub it over him. But she did it all the same, and then he came to himself by little and little; but they had to lie there and rest three weeks before he was fit to go on again.

Then they set off at a snail's pace, for the Bull said they had still a little farther to go, and so they crossed over many high hills and thick woods. So after a while they got upon the fells.

"Do you see anything?" asked the Bull.

"No, I see nothing but the sky and the wild fell," said the King's daughter.

So when they clomb higher up, the fell got smoother, and they could see farther off.

'Do you see anything now?" asked the Bull.

"Yes, I see a little castle far, far away," said the Princess.

"That's not so little though," said the Bull.

After a long, long time, they came to a great cairn, where there was a spur of the fell that stood sheer across the way.

"Do you see anything now?" asked the Bull.

"Yes, now I see the castle close by," said the King's daughter, "and now it is much, much bigger."

"Thither you're to go," said the Bull. "Right underneath the castle is a pig-sty, where you are to dwell. When you come thither you'll find a wooden cloak, all made of strips of lath; that you must put on, and go up to the castle and say your name is 'Katie Woodencloak,' and ask for a place. But before you go, you must take your


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 Rh penknife and cut my head off, and then you must flay me, and roll up the hide, and lay it under the wall of rock yonder, and under the hide you must lay the copper leaf, and the silvern leaf, and the golden apple. Yonder, up against the rock, stands a stick; and when you want anything, you've only got to knock on the wall of rock with that stick."

At first she wouldn't do anything of the kind; but when the Bull said it was the only thanks he would have for what he had done for her, she couldn't help herself. So, however much it grieved her heart, she hacked and cut away with her knife at the big beast till she got both his head and his hide off, and then she laid the hide up under the wall of rock, and put the copper leaf, and the silvern leaf, and the golden apple inside it.

So when she had done that, she went over to the pigsty, but all the while she went she sobbed and wept. There she put on the wooden cloak, and so went up to the palace. When she came into the kitchen she begged for a place, and told them h^r name was Katie Woodencloak. Yes, the cook said she might have a place—she might have leave to be there in the scullery, and wash up, for the lassie who did that work before had just gone away.

"But as soon as you get weary of being here, you'll go your way too, I'll be bound."

No; she was sure she wouldn't do that.

So there she was, behaving so well, and washing up so handily. The Sunday after there were to be strange guests at the palace, so Katie asked if she might have leave to carry up water for the Prince's bath; but all the rest laughed at her, and said,—


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32 The Celt was losing the force of his manhood and the strength of his freedom under the somewhat effeminate influence of the luxury-loving Roman, while Jutes, Angles and Saxons on the further shores were developing that rough-and-ready civilisation which was shortly to sweep over our island home. They had come to their own from beyond the distant Caucasus. Westward they had already fought their way till stayed by the waves of the "Western Sea," and amid the waste of sand and heather, where no man dwelt, they made their homes.

A fierce, free, fearless folk were these ancestors of ours—broad-shouldered, large-limbed giants, with masses of long fair hair and confident grey-blue eyes—utterly reckless of life and limb, pitiless, merciless, and bloodthirsty. Worshippers of Woden, whose name we commemorate every Wednesday of our lives, they lived on a traditional creed which enacted "eye for eye and limb for limb." Each limb had its value. An eye or a leg was valued at fifty shillings, the loss of a thumb at twenty shillings, the jawbone and front tooth at six shillings, while the brutality of the age is illustrated in the unwritten code that condoned for three


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Rh shillings the tearing off a thumb nail or the pulling of hair till the bone became visible! This sum, however, was not payable to the injured man, but to his family. And it is this sense of the value of the family bond that was such a marked characteristic of our forefathers, and has laid the foundation of so much in our social life to-day.

Each kinsman was kinsman in very deed and truth, bound to guard and protect his brother from wrong, to suffer for him and revenge him. There was no forgiveness in the old Saxon creed. War was their very existence, plunder and slaughter the "very breath of their lives." Splendid sailors, the "blast of the wind and the roar of the storm was as music in their ears," and still we seem to hear their shouts of glee as they breasted the salt waves to greet the undefended shores of deserted Britain. True, a stubborn defence by unorganised bands of the Celtic inhabitants of the island took place, but they


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 366 "What should you do there? Do you think the Prince will care to look at you, you who are such a fright?"

But she wouldn't give it up, and kept on begging and praying; and at last she got leave. So when she went up the stairs, her wooden cloak made such a clatter, the Prince came out and asked,—

"Pray, who are you?"

"Oh, I was just going to bring up water for your Royal Highness's bath," said Katie.

"Do you think now," said the Prince, "I'd have anything to do with the water you bring?" and with that he threw the water over her.

So she had to put up with that, but then she asked leave to go to church; well, she got that leave too, for the church lay close by. But first of all she went to the rock, and knocked on its face with the stick which stood there, just as the Bull had said. And straightway out came a man, who said,—

"What's your will?"

So the Princess said she had got leave to go to church and hear the priest preach, but she had no clothes to go in. So he brought out a kirtle, whioh was as bright as the copper wood, and she got a horse and saddle beside. Now, when she got to the church, she was so lovely and grand, all wondered who she could be, and scarce one of them listened to what the priest said, for they looked too much at her. As for the Prince, he fell so deep in love with her, he didn't take his eyes off her for a single moment.

So, as she went out of church, the Prince ran after her, and held the church door open for her; and so he got hold of one of her gloves, which was caught in the door. When


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 Rh she went away and mounted her horse, the Prince went up to her again, and asked whence she came.

"Oh, I'm from Bath," said Katie; and while the Prince took out the glove to give it to her, she said,—

The Prince had never seen the like of that glove, and went about far and wide asking after the land whence the proud lady, who rode off without her glove, said she came; but there was no one who could tell where "Bath" lay.

Next Sunday some one had to go up to the Prince with a towel.

"Oh, may I have leave to go up with it?" said Katie.

"What's the good of your going?" said the others; "you saw how it fared with you last time."

But Katie wouldn't give in; she kept on begging and praying, till she got leave; and then she ran up the stairs, so that her wooden cloak made a great clatter. Out came the Prince, and when he saw it was Katie, he tore the towel out of her hand, and threw it into her face.

"Pack yourself off. you ugly Troll," he cried; "do you think I'd have a towel which you have touched with your smutty fingers?"

After that the Prince set off to church, and Katie begged for leave to go too. They all asked what business she had at church—she who had nothing to put on but that wooden cloak, which was so black and ugly. But Katie said the Priest was such a brave man to preach, what he said did her so much good; and so at last she got leave.


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34 were held together by no bonds of unity, bound by no patriotism, moved by no enthusiasm. Consequently, with daring spirit and boundless brutality the new-comers wrested from them portion after portion of the fair country, until Britain became Engle-land and the Celts were driven westward. Neither were the English slow to appreciate the material advantages of their newly acquired territory. If they were fierce warriors, they were also skilful agriculturists, and the rich water meadows, the flourishing condition of sheep, goats and cattle, the golden cornfields producing more grain than the island could consume, appealed to them with irresistible force. More so indeed than did the thirty walled towns, the elaborately warmed villas, the theatres and amphitheatres of their predecessors—the Romans.

Avoiding the towns as much as possible, they made their new homes in family clusters, surrounded by earthworks for protection. Here within these little townships, as they were called, dwelt the farmer freemen with their slaves, and under their Chief of the Clan. As they had crossed the North Sea, and as they had fought side by side for the land, so now they made


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 368 Now she went again to the rock and knocked, and so out came the man, and gave her a kirtle far finer than the first one; it was all covered with silver, and it shone like the silver wood; and she got besides a noble steed, with a saddle-cloth broidered with silver, and a silver bit.

So when the King's daughter got to the church, the folk were still standing about in the churchyard. And all wondered and wondered who she could be, and the Prince was soon on the spot, and came and wished to hold her horse for her while she got off. But she jumped down, and said there was no need, for her horse was so well broke, it stood still when she bade it, and came when she called it. So they all went into church, but there was scarce a soul that listened to what the priest said, for they looked at her a deal too much; and the Prince fell still deeper in love than the first time.

When the sermon was over, and she went out of church, and was going to mount her horse, up came the Prince again and asked her whence she came.

"Oh, I'm from Towelland," said the King's daughter; and as she said that, she dropped her riding-whip, and when the Prince stooped to pick it up, she said,—

So away she was again; and the Prince couldn't tell what had become of her. He went about far and wide, asking after the land whence she said she came, but there was no one who could tell him where it lay; and so the Prince had to make the best he could of it.


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Insurance Company v. Dunham

ON certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts.

The act of Congress of April 29th, 1802, provides that

'Whenever any question shall occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next session to be held thereafter, and shall by the said court be finally decided.'

At the time when this statute was passed the Circuit Court, when consisting of more than a single judge, was composed of a judge of the Supreme Court of the United States and the District judge of the district sitting together, and this organization remained until April 10th, 1869.

By act of that day, 'to amend the judicial system of the United States,' it was enacted:

'That for each of the nine existing judicial circuits there shall be appointed a Circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. The Circuit Courts in each circuit shall be held by the justice of the Supreme Court allotted to the circuit; or by the Circuit judge of the circuit; or by the District judge, or by the justice of the Supreme Court and Circuit judge sitting together,. . . or, in the absence of either of them, by the other. . . and the District judge.'

In this state of enactment a libel in personam had been filed in the District Court for the District of Massachusetts, by one Dunham against the New England Mutual Marine Insurance Company, on a policy of insurance, dated at Boston on the 2d day of March, 1863, whereby the insurance company, a corporation of Massachusetts, agreed to insure Dunham, the libellant, a citizen of New York, in the sum of $10,000, for whom it might concern, on a vessel called the Albina, for one year, against the perils of the seas and other perils in the policy mentioned; and the libellant alleged that within the year the said vessel was run into by another vessel on the high seas, through the negligence of those navigating the said other vessel, and sustained much damage, and that the libellant had expended large sums of money in repairing the same, of which he claimed payment of the insurance company.

The question was whether the District Court, sitting in admiralty, had jurisdiction to entertain a libel in personam on a policy of marine insurance to recover for a loss.

The Constitution ordains, it will be remembered, that

'The judicial power shall extend. . . to all cases of admiralty and maritime jurisdiction.'

And the Judiciary Act of 1789, which established the District Courts, declares that they shall have

'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. . . saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.'

The District Court decreed in favor of the libellant, and the insurance company appealed to the Circuit Court. The judges of that court were opposed in opinion on the point raised, and it was accordingly certified to this court. Two questions were thus before this court:

1. Whether since the reorganization of the Circuit Courts under the act of 1869, a difference of opinion between a judge of the Supreme Court and 'the Circuit judge,' created by that act, sitting as the Circuit Court, could be certified to this court under the act of 1802.

2. If it could, what was the proper answer to be returned to the question certified? Had the District Court, sitting in admiralty, jurisdiction to entertain the libel in this case, the same being a libel in personam on a policy of marine insurance to recover for a loss?

The latter question was the one to which the briefs of counsel were directed.

Mr. F. C. Loring, for the libellants and in support of the jurisdiction:

By the universal and unanimous foreign practice and authorities, with one exception only, the contract of marine insurance is considered to be maritime, and a proper subject for the cognizance of a court vested with jurisdiction over maritime cases. It might, therefore, have been anticipated, that when the question came before the admiralty courts of the United States, vested with jurisdiction over all maritime cases, the decision would be in favor of the jurisdiction. This does not seem to have happened for more than twenty years after the adoption of the Constitution. As the courts of common law exercise concurrent jurisdiction over contracts of insurance, and as the plaintiffs in suits thereon would naturally prefer not to waive the benefit of a trial by jury, and of a trial in their own courts; and as the lawyers of that day were brought up according to and by the common law, this is not surprising. No case is found, in the reports of any of the courts of the United States, of an action in the admiralty on a policy of insurance until the year 1815, nor on a charter-party, nor for freight, till 1829.

At the October Term of the Circuit Court for Massachusetts, in 1815, the question was first presented by a libel on a policy of insurance. A plea to the jurisdiction was interposed, and the result was the opinion of Story, J., in De Lovio v. Boit, deciding in favor of the jurisdiction.

How this decision was received at the time is not now known. As this court was then constituted, it is probable that the jurisdiction would have been maintained on appeal. Marshall, C. J., affirmed, in The Little Charles, in 1819, that 'The courts of the United States have never doubted their right to proceed under their general powers as courts of admiralty, where they are not restrained from the use of these powers by statute.'

That Washington, J., would have sustained the jurisdiction, cannot be doubted. In The Sencea, he says:

title: Insurance Company v. Dunham


text: Talk:Insurance Company v. Dunham

title: Talk:Insurance Company v. Dunham