text:
Searight v. Stokes/Dissent Daniel

Mr. Justice DANIEL.

With the profoundest respect for the opinions of my brethren, In find myself constrained openly to differ from the decision which, on behalf of the majority of the court, has just been pronounced. This case, although in form a contest between individuals, is in truth a question between the government of the United States and the government of Pennsylvania. It is, to a certain extent, a question of power between those two governments; and, indeed, so far as it is represented to be a question of compact, the very consideration on which the interests of the federal government are urged involves implications affecting mediately or directly what are held to be great and fundamental principles in our state and federal systems. It brings necessarily into view the operation and effect of the compact insisted upon as controlled and limited by the powers of both the contracting parties. In order to show more plainly the bearing of the principles above mentioned upon the case before us, they will here be more explicitly, though cursorily, referred to.

I hold, then, that neither Congress nor the federal government in the exercise of all or any of its powers or attributes possesses the power to construct roads, nor any other description of what have been called internal improvements, within the limits of the states. That the territory and soil of the several states appertain to them by title paramount to the Constitution, and cannot be taken, save with the exceptions of those portions thereof which might be ceded for the seat of the federal government and for sites permitted to be purchased for forts, arsenals, dock-yards, &c., &c. That the power of the federal government to acquire, and that of the states to cede to that government portions of their territory, are by the Constitution limited to the instances above adverted to, and that these powers can neither be enlarged nor modified but in virtue of some new faculty to be imparted by amendments of the Constitution. I believe that the authority vested in Congress by the Constitution to establish post-roads, confers no right to open new roads, but implies nothing beyond a discretion in the government in the regulations it may make for the Post-office Department for the selection amongst various routes, whilst they continue in existence, of those along which it may deem it most judicious to have the mails transported. I do not believe that this power given to Congress expresses or implies any thing peculiar in relation to the means or modes of transporting the public mail, or refers to any supposed means or modes of transportation beyond the usual manner existing and practised in the country, and certainly it cannot be understood to destroy or in any wise to affect the proprietary rights belonging to individuals or companies vested in those roads. It guaranties to the government the right to avail itself of the facilities offered by those roads for the purposes of transportation, but imparts to it no exclusive rights-it puts the government upon the footing of others who would avail themselves of the same facilities.

In accordance with the principles above stated, and which with me are fundamental, I am unable to perceive how the federal government could acquire any power over the Cumberland road by making appropriations, or by expending money to any amount for its construction or repair, though these appropriations and expenditures may have been made with the assent, and even with the solicitation of Pennsylvania. Neither the federal government separately, nor conjointly with the state of Pennsylvania, could have power to repeal the Constitution. Arguments drawn from convenience or inconvenience can have no force with me in questions of constitutional power; indeed, they cannot be admitted at all, for if once admitted, they sweep away every barrier erected by the Constitution against implied authority, and may cover every project which the human mind may conceive. It matters not, then, what or how great the advantage which the government of the United States may have proposed to itself or to others in undertaking this road; such purposes or objects could legitimate no acts either expressly forbidden or not plainly authorized. If the mere appropriation or disbursement of money can create rights in the government, they may extend this principle indefinitely, and with the very worst tendencies-those tendencies would be the temptation to prodigality in the government and a dangerous influence with respect to others.

In my view, then, the federal government could erect no toll-gates nor make any exaction of tolls upon this road; nor could that government, in consideration of what it had done or contributed, constitutionally and legally demand of the state of Pennsylvania the regulation of tolls either as to the imposition of particular rates or the exemption of any species of transportation upon it. As a matter of constitutional and legal power and authority, this appertained to the state of Pennsylvania exclusively. Independently, then, of any stipulations with respect to them, vehicles of the United States, or vehicles transporting the property of the United States, and that property itself, would, in passing over this road, be in the same situation precisely with vehicles and property appertaining to all other persons; they would be subject to the tolls regularly imposed by law. There can be no doubt if the road were vested in a company or in a state, that either the company or the state might stipulate for any rate of toll within the maximum of their power, or might consent to an entire exemption; and such stipulation, if made for a valuable or a legal consideration, would be binding.

The United States may contract with companies or with communities for the transportation of their mails, or any of their property, as well as with carriers of a different description; and consequently could contract with the state of Pennsylvania. But what is meant to be insisted on here is, that the government could legally claim no power to collect tolls, no exemption from tolls, nor any diminution of tolls in their favor, purely in consequence of their having expended money on the road, and without the recognition by Pennsylvania of that expenditure as a condition in any contract they might make with that state. Without such recognition, the federal government must occupy the same position with other travellers or carriers, and remain subject to every regulation of her road laws which the state could legally impose on others.

This brings us to an examination of the statutes of Pennsylvania, and to an inquiry into any stipulations which the state is said to have made with the federal government, as declared in those statutes. That examination will, however, be premised by some observations, which seem to be called for on this occasion. These acts of the Pennsylvania legislature have been compared with the acts of other legislative bodies relative to this road, and it has been supposed that the Pennsylvania laws should be interpreted in conjunction with those other state laws, and farther, that all these separate state enactments should be taken, together with the acts of Congress passed as to them respectively, as forming one, or as parts of one entire compact with the federal government. I cannot concur in such a view of this case. On the contrary, I must consider each of the states that have legislated in respect to this road, as competent to speak for herself; as speaking in reference to her own interests and policy, and independently of all others; and unshackled by the proceedings of any others. By this rule of construction let us examine the statutes of Pennsylvania. The act of April 4th, 1831, which may be called the compact law, as it contains all that Pennsylvania professed to undertake, begins by stating the doubts which were entertained upon the authority of the United States to erect toll-gates and to collect tolls on the Cumberland road; doubts which, with the government as well as with others, seem to have ripened into certainties, inasmuch as, notwithstanding its large expenditures upon this road, the government had never exacted tolls for travelling or for transportation upon it. The statute goes on next to provide, that if the government of the United States will make such farther expenditures as shall put the road lying within the limits of Pennsylvania in complete repair, Pennsylvania will erect toll-gates and collect tolls upon the road, to be applied to the repairs and preservation of it. The same act invests the commissioners it appoints to superintend the road, with power to increase or diminish the tolls to be levied; limiting the increase by the rates which the state had authorized upon an artificial road that she had established from the Susquehanna, opposite the borough of Harrisburg, to Pittsburg. Then in the act of 1831 are enumerated the subjects of toll, and the rates prescribed as to each of those subjects. Amongst the former are mentioned chariots, coaches, coachees, stages, wagons, phaetons, chaises. In the 3d proviso to the 2d section it is declared, 'that no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States, or any cannon or military stores belonging to the United States, or to any of the states belonging to this union.' On the 13th of June, 1836, was passed by the legislature of Pennsylvania, 'An act relating to the tolls on that part of the Cumberland road which passes through Pennsylvania.' The 1st section of this act is in the following words: 'All wagons, carriages, or other modes of conveyance, passing upon that part of the Cumberland road which passes through Pennsylvania, carrying goods, cannon, or military stores, belonging to the United States, or to any individual state of the union, which are excepted from the payment of toll by the second section of an act passed the fourth of April, anno Domini eighteen hundred and thirty-one, shall extend only so far as to relieve such wagons, carriages, and other modes of conveyance, from the payment of toll to the proportional amount of such goods so carried, belonging to the United States, or to any of the individual states of the union; and that in all cases of wagons, carriages, stages, or other modes of conveyance, carrying the United States mail, with passengers or goods, such wagon, stage, or other mode of conveyance, shall pay half-toll upon such modes of conveyance.'

Upon the construction to be given to the 1st and 2d sections of the statute of 1831, and to the 1st section of the statute of 1836, depends the decision of the case before us. By the defendant in error it is insisted that, by the sections of the act of 1831 above cited, stages or stage-coaches, transporting the mail of the United States, are wholly exempted by compact from the payment of tolls, although the mails may constitute but a small portion of their lading; and those vehicles may be at the same time freighted for the exclusive profit of the mail contractors, with any number of passengers, or with any quantity of baggage or goods, which can be transported in them, consistently with the transportation of the mail; and that the 1st section of the act of 1836, which declares that 'in all cases of wagons, carriages, stages, or other modes of conveyance, carrying the United States mail, with passengers or goods, such wagon, stage, or other mode of conveyance, shall pay half-toll upon such mode of conveyance,' is a violation of the compact. Let us pause here, and inquire what was the natural and probable purpose of the exemption contained in the act of 1831? Was that exemption designed as a privilege or facility to the government, or as a donation for private and individual advantage? Common sense would seem to dictate the reply, that the former only was intended by the law; and even if the privilege or facility to the government could be best secured by associating it with individual profit, certainly that privilege or facility could, on no principle of reason or fairness, be so sunk, so lost sight of, so entirely perverted, as to make it a mean chiefly of imposition and gain on the part of individuals, and the cause of positive and serious public detriment; and such must be the result of the practice contended for by the defendants in error, as it would tend to impede the celerity of transportation, and to destroy the road itself, by withholding the natural and proper fund for its maintenance. Passing then from what is believed to be the natural design of these enactments, let their terms and language be considered. By those of the 2d section of the law of 1831, every stage or wagon is made expressly liable to toll, without regard to the subjects it might transport, and without regard to the ownership of the vehicle itself. The terms of the law are universal; they comprehend all stages and all wagons; they would necessarily, therefore, embrace stages and wagons of the United States, or the like vehicles of others carrying the property of the United States or of private persons. If, then, either the vehicles of the United States, or of others carrying the property of the United States, have been withdrawn from the operation of the act of 1831, this can have been done only by force of the 3d proviso of the 2d section of that act. The proviso referred to declares that no toll shall 'be collected for the passage of any wagon or carriage laden with the property of the United States,' &c., &c. Can this proviso be understood as exempting stages, whether belonging to the government or to individuals, which were intended purposely to carry the MAIL? It is not deemed necessary, in interpreting this proviso, to discuss the question, whether the United States have a property in mails which they carry. It may be admitted that the United States and all their contractors have in the mails that property which vests by law in all common carriers; it may be admitted that the United States have an interest in the mails even beyond this. These admissions do not vary the real inquiry here, which is, whether by this proviso the mails of the United States, or the carriages transporting them, were intended to be exempted from tolls? This law, like every other instrument, should be interpreted according to the common and received acceptation of its words; and artificial or technical significations of words or phrases should not be resorted to, except when unavoidable, to give a sensible meaning to the instrument interpreted; or when they may be considered as coming obviously within the understanding and contemplation of the parties. According to this rule of interpretation, what would be commonly understood by 'the property of the United States,' or by the phrase 'wagons and carriages laden with the property of the United States?' Would common intendment apply those terms to the mail of the United States, or to vehicles carrying that mail? The term 'mail' is perhaps universally comprehended as being that over which the government has the management for the purposes of conveyance and distribution; and it would strike the common understanding as something singular, to be told that the money or letters belonging to the citizen, and for the transportation of which he pays, was not his property, but was the property of the United States. The term 'mail,' then, having a meaning clearly defined and universally understood, it is conclusive to my mind, that in a provision designed to exempt that mail, or the vehicle for its transportation, the general and equivocal term 'property' would not have been selected, but the terms 'mail,' and 'stages carrying the mail'-terms familiar to all-would have been expressly introduced.

Farther illustration of the language and objects of the legislature of Pennsylvania may be derived from the circumstance, that, in the law of 1831, they couple the phrase 'property of the United States' with 'property of the states.' The same language is used in reference to both; they are both comprised in the same sentence; the same exemption is extended to both. Now the states have no mails to be transported. It then can by no means follow, either by necessary or even plausible interpretation, that by 'property of the United States' was meant the 'mails of the United States,' any more than by 'property of the states' was meant the 'mails' of those states; on the contrary, it seems far more reasonable that the legislature designed to make no distinction with regard to either, but intended that the term 'property' should have the same signification in reference both to the state and federal governments.

In the acceptation of the term 'property,' insisted on for the defendants in error, the mails committed to the contractor are the property of that contractor also. Yet it would hardly have been contended that in a provision for exempting the 'property' of a mail contractor from tolls, either a vehicle belonging to the United States, and in the use of such a contractor, or the mail which he carried in it, would be so considered as his property as to bring them within that exemption; yet such is the conclusion to which the interpretation contended for by the defendants would inevitably lead. That construction I deem to be forced and artificial, and not the legitimate interpretation of the statute, especially when I consider that there are various other subjects of property belonging to the United States, and belonging to them absolutely and conclusively, which from their variety could not well be specifically enumerated, and which, at some period or other, it might become convenient to the government and beneficial to the country to transport upon this road. But if, by any interpretation, the words 'wagon or carriage laden with the property of the United States,' can be made to embrace stages carrying the mail, and employed purposely for that service, they surely cannot, by the most forced construction, be made to embrace stages laden with every thing else, by comparison, except the mail of the United States, and in which the mail was a mere pretext for the transportation of passengers and merchandize, or property of every description and to any amount, free of toll. They must at all events be laden with the mail. The term laden cannot be taken here as a mere expletive, nor should it be wrested from its natural import-be made identical in signification with the terms 'carrying' or 'transporting.' Such a departure would again be a violation of common intendment, and should not be resorted to; and the abuses just shown, which such a departure would let in and protect, furnish another and most cogent reason why the common acceptation of the phrase, 'property of the United States,' should be adhered to. Fairness and equality with respect to all carriers and travellers upon this road and justice to the state which has undertaken to keep it in repair from the tolls collectible upon it, require this adherence.

If the interpretation here given of the act of 1831 be correct, then admitting that act to be a compact between Pennsylvania and the United States, the former has, by the 1st section of the act of 1836, infracted no stipulation in that compact. Pennsylvania never did, according to my understanding of her law of 1831, agree to the exemption from tolls for stages, wagons, or vehicles of any kind, intended for carrying the mails of the United States. These stood upon the like footing with other carriages. If this be true, then by the act of 1836, in which she has subjected to half-tolls only, stages, wagons, &c., carrying the mails, and at the same time transporting passengers or goods, so far from violating her compact, or inflicting a wrong upon the government or upon mail contractors, that state has extended to them a privilege and an advantage which, under the 3d proviso of the act of 1831, they did not possess. My opinion is, that the plaintiff in the court below had an undoubted right of recovery.

title: Searight v. Stokes/Dissent Daniel


text:
Pollard v. Hagan/Dissent Catron

Mr. Justice CATRON dissented.

The statute of 1836, and the patent of the United States founded on it, by which the land in controversy was granted to Wm. Pollard's heirs, have on several occasions heretofore received the sanction of this court as a valid title.

1. In the case of Pollard's heirs v. Kibbe, 14 Pet., 353, the Supreme Court of Alabama having pronounced an opposing claim under the act of 1824 superior to Pollard's, this court reversed the judgment and established the latter, after the most mature consideration.

2. In the case of Pollard v. Files, 2 How., 591, the precise title was again brought before this court, and very maturely considered; it was then said-(page 602)-'This court held, when Pollard's title was before it formerly, that Congress had the power to grant the land to him by the act of 1836: on this point there was no difference of opinion at that time among the judges. The difference to which the Supreme Court of Alabama refers, (in its opinion in the record,) grew out of the construction given by a majority of the court to the act of 1824, by which the vacant lands east of Water street were granted to the city of Mobile.'

On this occasion the decision of the Supreme Court of Alabama was again reversed, and Pollard's heirs ordered to be put into possession, and they now maintain it under our two judgments. It is here for the third time.

In the mean time, between 1840 and 1844, a doctrine had sprung up in the courts of Alabama, (previously unheard of in any court of justice in this country, so far as I know,) assuming that all lands temporarily flowed with tide-water were part of the eminent domain and a sovereign right in the old states; and that the new ones when admitted into the union, coming in with equal sovereign rights, took the lands thus flowed by implication as an incident of state sovereignty, and thereby defeated the title of the United States, acquired either by the treaty of 1803, or by the compacts with Virginia or Georgia. Although the assumption was new in the courts, it was not entirely so in the political discussions of the country; there it had been asserted, that the new states coming in, with equal rights appertaining to the old ones, took the high lands as well as the low, by the same implication now successfully asserted here in regard to the low lands; and indeed it is difficult to see where the distinction lies. That the United States acquired in a corporate capacity the right of soil under water, as well as of the high lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained and subject to grant up to the time Alabama was admitted as a state. Louisiana was admitted in 1812; to her the same rules must apply that do to Alabama. All acquainted with the surface of the latter know that many of the most productive lands there, and now in successful cultivation, were in 1812 subject to overflow, and have since been reclaimed by levees.

It is impossible to deal with the question before us understandingly, without reference to the physical geography of the delta of the Mississippi and the country around the gulf of Mexico, where the most valuable lands have been made and are now forming by alluvion deposits of the floating soils brought down by the great rivers; the earlier of which had become dry lands; but the more recent were flowed, when we acquired the country; and are in great part yet so: thus situated they have been purchased from the United States and reclaimed; a process that is now in daily exercise. An assumption that mud-flats and swamps once flowed, but long since reclaimed, had passed to the new states, on the theory of sovereign rights, did, at the first, strike my mind as a startling novelty; nor have I been enabled to relieve myself from the impression, owing to the fact in some degree, it is admitted, that for thirty years neither Congress, or any state legislature, has called in question the power of the United States to grant the flowed lands, more than others: the origin of title, and its continuance, as to either class, being deemed the same. A right so obscure, and which has lain dormant, and even unsuspected, for so many years, and the assertion of which will strip so much city property, and so many estates of all title, should as I think be concluded by long acquiescence, and especially in courts of justice.

Again: the question before us is made to turn by a majority of my brethren exclusively on political jurisdiction; the right of property is a mere incident. In such a case, where there is doubt, and a conflict suggested, the political departments, state and federal, should settle the matter by legislation: by this means private owners could be provided for and confusion avoided; but no state complains, nor has any one ever complained, of the infraction of her political and sovereign rights by the United States, or by their agents, in the execution of the great trust imposed on the latter to dispose of the public domain for the common benefit; on the contrary, we are called on by a mere trespasser in the midst of a city, to assert and maintain this sovereign right for his individual protection, in sanction of the trespass.

But as already stated, the United States may be an owner of property in a state, as well as another state, or a private corporation, or an individual may: That the proprietary interest is large, cannot alter the principle. I admit if the agents of the United States obstruct navigation, the state authorities may remove the obstructions and punish the offenders; so the states have done for many years without inconvenience, or complaint.

Nor can material inconvenience result. If a front to a city, or land for another purpose is needed, Congress can be applied to for a grant as was done by the corporation of Mobile in 1824: If the state where the land lies was the owner the same course would have to be pursued. The states and the United States are not in hostility; the people of the one are also the people of the other; justice and donation is alike due from each.

Connecticut was once a large proprietor in the North-West Territory, (now Ohio.) She owned the shores of a great lake and the banks of navigable rivers: Can it be assumed that the admission of Ohio defeated the title of Connecticut, and that she could not grant? The question will not bear discussion-and how can the case put be distinguished from the one before us: Nay, how can either be distinguished from the rights of private owners of lands above water, or under the water? Yet in either instance, is the owner in fee deprived of his property, on this assumption of sovereign rights.

The front of the city of Mobile is claimed by the act of 1824, sanctioned by this court as a valid grant in the five cases of Pollard v. Kibbe, 14 Pet.; of The City of Mobile v. Eslava, 16 Id., 234; of the same plaintiff v. Hallet, 16 Id., 261; of the same plaintiff v. Emanuel, 1 How., 95, and of Pollard v. Files, 2 Id., 591. Except the grant to Pollard, the act of 1824 confers the entire title, (so far as is known to this court,) of a most valuable portion, and a very large portion, of the second city on the Gulf of Mexico, in wealth and population. This act is declared void in the present cause; and the previous decisions of this court are either directly, or in effect, overthrown, and the private owners stripped of all title. On this latter point my brethren and I fully agree: Can Alabama remedy the evil, and confirm the titles by legislation or by patent? I say by patent, because this state, Louisiana, Mississippi, and surely Florida, will of necessity have to adopt some system of giving title if it is possible to do so, aside from private legislation; as the flowed lands are too extensive and valuable for the latter mode of grant in all instances.

The charge of the state court to the jury was, that the act of Congress of 1836, and the patent founded on it, and also, of course, the act of 1824, were void, if the lands granted by them were flowed at high tide when Alabama was admitted; and it was immaterial whether the mud-flat had been filled up and the water excluded by the labor of man or by natural alluvion. And this charge is declared to have been proper, by a majority of this court.

The decision founds itself on the right of navigation, and of police connected with navigation. As a practical truth, the mud-flats and other alluvion lands in the delta of the river Mississippi, and around the Gulf of Mexico, formed of rich deposits, have no connection with navigation, but obstruct it, and must be reclaimed for its furtherance. This is well illustrated by the recent history of Mobile. When the act of 1824 was passed, granting to the corporation the front of the city, it was excluded from the navigable channel of the river by a mud-flat, slightly covered with water at high tide, of perhaps a thousand feet wife. This had to be filled up before the city could prosper, and of course, by individual enterprise, as the vacant space, as was apparent, must become city property; and it is now formed into squares and streets, having wharves and warehouses. The squares are built up; and the fact that that part of the city stands on land once subject to the flow of tide, will soon be matter of history. At New Orleans, and at most other places fronting rivers where the tide ebbs and flows, as well as on the ocean and great lakes, navigation is facilitated by similar means; without their employment few city fronts could be formed, at all accommodated to navigation and trade. To this end private ownership is indispensable and universal; and some one must make title. If the United States have no power to do so, who has? I repeat, can Alabama grant the soil? She disavowed all claim and title to and in it, as a condition on which Congress admitted her into the union. By the act of March 2, 1819, (3 Story's Laws, 1726,) the Alabama territory was authorized to call a convention, and form a state constitution; but Congress imposed various restrictions, and among others the following one: 'And provided always, that the said convention shall provide by an ordinance, irrevocable without the consent of the United States, that the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the waste or unappropriated lands lying within the said territory, and that the same shall be, and remain at the sole and entire disposition of the United States.'

On the 2d of August, 1819, the convention of Alabama formed a constitution, and adopted an ordinance declaring 'that this convention, for and on behalf of the people inhabiting this state, do ordain, agree, and declare, that they forever disclaim all right and title to the waste or unappropriated lands lying within this state; and that the same shall be and remain at the sole and entire disposition of the United States.' In addition, all the propositions offered by the act of March 2, 1819, were generally accepted without reservation.

On the 14th of December, 1819, Congress, by resolution, admitted Alabama as a state, on the conditions above set forth. 3 Story's Laws, U.S., 1804.

That the lands in contest, and granted by the acts of 1824 and 1836, were of the description of 'waste or unappropriated,' and subject to the disposition of the United States, when the act of Congress of the 2d of March, 1819, was passed, is not open to controversy, as already stated; nor has it ever been controverted, that whilst the territorial government existed, any restrictions to give private titles were imposed on the federal government: and this in regard to any lands that could be granted. And I had supposed that this right was clearly reserved by the recited compacts, as well as on the general principle that the United States did not part with the right of soil by enabling a state to assume political jurisdiction. That the disclaimer of Alabama, to all right and title in the waste lands, or in the unappropriated lands, lying within the state, excludes her from any interest in the soil, is too manifest for debate, aside from all inference founded on general principles. It follows, if the United States cannot grant these lands, neither can Alabama; and no individual title to them can ever exist. And to this conclusion, as I understand the reasoning of the principal opinion, the doctrine of a majority of my brethren mainly tends. The assumption is, that flowed lands, including mud-flats, extending to navigable waters, are part of such waters, and clothed with a sovereign political right in the state; not as property, but as a sovereign incident to navigation, which belongs to the political jurisdiction; and being part of state sovereignty, the United States could not withhold it from Alabama. On this theory, the grants of the United States are declared void: conceding to the theory all the plenitude it can claim, still Alabama has only political jurisdiction over the thing; and it must be admitted that jurisdiction cannot be the subject of a private grant.

The present question was first brought directly before this court, (as I then supposed, and now do,) in the cause of The City of Mobile v. Eslava, in 1840, when my opinion was expressed on it at some length. It will be found in 16 Pet., 247, and was in answer to the opinion of the Supreme Court of Alabama, sent up as part of the record; having been filed pursuant to the statute of that state, found in Clay's Digest, 286, sec. 6. My opinion, then given, has been carefully examined, and so far as it goes, is deemed correct, (except some errors of the press,) nor will the reasons given be repeated.

In Hallet's case, 16 Pet., 263, reasons were added to the former opinion. And again, in the case of Emanuel, the question is referred to, in an opinion found in 1 How., 101.

In Pollard's Lessee v. Files, 2 How., 602, the question, whether Congress had power to grant the land now in controversy, was treated as settled. As the judgment was exclusively founded on the act of 1836, (the plaintiff having adduced no other title,) it was impossible to reverse the judgment of the Supreme Court of Alabama on any other assumption than that the act of Congress conferred a valid title. I delivered that opinion, and it is due to myself to say, that it was the unanimous judgment of the members of the court then present.

I have expressed these views in addition to those formerly given, because this is deemed the most important controversy ever brought before this court, either as it respects the amount of property involved, or the principles on which the present judgment proceeds-principles, in my judgments, as applicable to the high lands of the United States as to the low lands and shores.

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title: Pollard v. Hagan/Dissent Catron


text:
Cary v. Curtis/Dissent McLean

Mr. Justice McLEAN.

This suit was brought to recover from the defendant, collector of the customs, an excess of duties exacted by him of the plaintiffs against law. And on the trial in the Circuit Court the judges were divided on the question, 'whether the act of the 3d of March, 1839, was a bar to the action.' This point has been certified to this court.

The 2d section of the above act provides, 'that from and after the passage of this act, all money paid to any collector of the customs, or to any person acting as such, for unascertained duties, or for duties paid under protest against the rate or amount of duties charged, shall be placed to the credit of the treasurer of the United States, kept and disposed of as all other money paid for duties is required by law or by regulation of the Treasury Department to be placed to the credit of the said treasurer, kept and disposed of; and shall not be held by the said collector, or person acting as such, to await any ascertainment of duties or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectible in any case where money is so paid; but whenever it shall be shown to the satisfaction of the Secretary of the Treasury, that, in any case of unascertained duties or duties paid under protest, more money has been paid to the collector or person acting as such than the law requires should have been paid, it shall be his duty to draw his warrant upon the treasurer in favor of the person or persons entitled to the over-payment, directing the said treasurer to refund the same out of any money in the Treasury not otherwise appropriated.'

In the case of Elliott v. Swartwout, 10 Pet., 137, and in Bend v. Hoyt, 13 Id., 263, this court held, that illegal duties exacted by the collector were recoverable from him, where paid under protest, by the importer, in an action of assumpsit. This doctrine is not questioned in this country or in England. Has the 2d section of the act above cited changed the law in this respect? A majority of the judges have decided in the affirmative, and that that act constitutes a bar to an action in such a case. I dissent from the opinion of the court.

The above section, in my judgment, so far from taking away the legal remedy, expressly recognises it. The collector is required, 'from and after the passage of the act,' to pay over to the treasurer the moneys in his hands, and not 'to await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duty legally chargeable,' &c. Now, if Congress intended by this section to withdraw this subject from the courts, and vest the exclusive right to decide the matter in the Secretary of the Treasury, could they have used this language? The law was not to operate upon the past, but upon the future acts of the collector. And I ask in sober earnestness, whether the collector could be required to pay over money, 'and not await the result of a litigation,' as 'to the amount of duties legally chargeable,' if the intention was to prohibit such litigation. I use the words of the section; and the words of the section alone, as I think, are conclusive as to the intention of Congress. The collector must pay over the money, and not retain it until the termination of a suit. Does this take away the right to bring a suit? Such an inference, it seems to me, would be as exceptionable in logic as in law.

From the proceedings of this court we know that collectors of the customs after their removal from office or the expiration of their term, and sometimes while in office, under the pretext of indemnifying themselves against suits for the exaction of illegal duties, were in the practice of withholding from the Treasury large sums of money. And it was to remedy this evil, that the above law was passed. As to the remission of duties illegally charged, it vested in the secretary no new powers; but it authorizes him, where the excess of duty has been paid into the Treasury, to draw it out by a warrant, and pay it over to the person entitled to receive it. By the 21st section of the Duty Act of 1799, (1 Story, 592,) the collectors 'were required, at all times, to pay to the order of the proper officer the whole of the moneys which they may respectively receive, &c., and shall once in three months, or oftener, if required, transmit their accounts,' &c. Now, it is known from public documents and from cases before this court, that the Secretary of the Treasury has, for a long time before the act of 1839, required the collector of New York to pay over moneys received by him, weekly or at short intervals. And can it be pretended that the act of 1799, under the instructions of the Secretary of the Treasury, was not as binding upon collectors as the act of 1839? In a legal point of view the liability of a collector was the same for illegal duties received by him, whether paid into the Treasury under the one law or the other.

It is said that the law cannot raise a promise to pay by an officer, where it requires him to pay the same money into the Treasury. The action is founded on the illegality of the transaction. None other than legal duties are payable to the government; and where an officer by his own volition, or acting under the instructions of his superior, demands a higher duty than the law authorizes, he is guilty of a wrong which his instructions cannot justify. And having done this, can it be contended, that by paying over moneys so obtained he can escape the legal consequence of his unlawful act? Where one person obtains money illegally from another, is he not bound in conscience to return it? And may not an action of assumpsit be sustained for the recovery of the money? In such an action the question is, whether the defendant has received money which he is bound in good conscience to pay to the plaintiff. Now, if the defendant, as collector, exacted a higher duty of the plaintiffs than the law authorized, is he not bound in conscience to return the excess? But it is said that he has paid it over to the Treasury of the United States, in pursuance of the act of 1839, and that this is a bar to the action. Why has not this bar been set up under the act of 1799? By that act the collector, when ordered by the Secretary of the Treasury, was as much bound to pay over the money in his hands into the Treasury as under the act of 1839. And yet for forty-four years such a defence has not been thought of. It has never been supposed that the payment of the money into the Treasury exonerated the collector. He has violated the law, and he is answerable for that violation. This must be the case, unless, in the language of this court in the case of Elliott v. Swartwout above cited, 'the broad proposition can be maintained, that no action will lie against a collector to recover back an excess of duties paid him, but that recourse must be had to the government for redress. Such a principle,' the court say, 'would be carrying an exemption to a public officer beyond any protection sanctioned by any principles of law or sound public policy.'

In Townson v. Wilson et al., 1 Campb., 396, Lord Ellenborough says, 'If any person gets money into his hands illegally, he cannot discharge himself by paying it over to another.' The same doctrine is held in Sadler v. Evans, 4 Burr., 1986. And this court in the above case of Elliott v. Swartwout say, 'It may be assumed as the settled doctrine of the law, that where money is illegally demanded and received by an agent, he cannot exonerate himself from responsibility by paying it over to his principal, if he has had notice not to pay it over. A notice not to pay over the money to the principal, it is contended, presupposes a right in the agent to retain it. No such inference could arise under the act of 1799, nor can it be made under the present law. The notice should induce the collector to reconsider his act, and if found to have been against law to correct it. But it is said, he may have acted under the orders of the Secretary of the Treasury. Suppose he did, would that justify or excuse an illegal act? I will answer this in the language of this court in the case last cited: 'Any instructions from the Treasury Department could not change the law or affect the rights of the plaintiff. He, the collector, was not bound to take and adopt that instruction. He was at liberty to judge for himself, and act accordingly.' And in Tracy v. Swartwout, 10 Pet., 99, this court say, 'that the personal inconvenience of the collector is not to be considered.' When acting under instructions the government is bound to indemnify him. In my judgment the act of 1839 interposes no bar to this action.

But there is another aspect in which this case must be considered. Feeling, as I do, an unfeigned respect for the opinion of the judges who differ from me, yet I cannot, without concern, look at the consequences of the principle established in this case. The right of a citizen to resort to the judicial tribunals of the country, federal or state, for redress for an injury done by a public officer, is taken away by the construction of an act of Congress, which, in my judgment, bears no such construction. But I will take higher ground, and say, that Congress have no constitutional power to pass such an act as the statute of 1839 is construed to be by this decision.

By the 2d section of the 3d article of the Constitution of the United States, the judicial power extends to all cases in law and equity arising under the Constitution and laws of the union. And by the 7th section of the amendments to the Constitution it is provided, that 'in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'

The act of 1839, in my judgment, does not conflict with either of the above constitutional provisions. But if it take away the right of the citizen to sue in a court of law for the injury complained of, as construed by my brethren, then it is in direct conflict with both of the above provisions.

In a matter of private right it takes from the judiciary the power of construing the law, and vests it in the Secretary of the Treasury; the executive officer under whose sanction or instruction the wrong complained of was done.

And in the second place it takes from the citizen the right of trial by jury, which is expressly given to him by the Constitution.

I again repeat that Congress have not done this, nor did they intend to do it by the act of 1839. But the act is so construed by the decision just pronounced. Under this view, I feel myself bound to consider the principle established by the court, and to speak of its consequences.

That the act, as construed, is in direct conflict with the above provisions of the Constitution, is so palpable that it seems to me no illustration could make it clearer.

The right to construe the laws in all matters of controversy, is of the very essence of judicial power. Executive officers who are required to act under the laws, of necessity, must give a construction to them. But their construction is not final. When it operates injuriously to the citizen, he may, by any and every possible means through which it may be brought before the courts, have the construction of the law submitted to them, and their decision is final.

But the court say, that the plaintiffs in this case cannot seek redress for the injury complained of, by an action at law, but, under the act of 1839, are referred to the Secretary of the Treasury; an executive officer, who has prejudged the case, who can exercise neither the forms nor the functions of a judicial officer; who acts summarily, without a jury, and from whose judgment there is no appeal. The case turns upon facts; facts properly triable by a jury. The question is, whether the articles on which the duties have been assessed, are such articles as under the law are liable to be thus taxed. This is a question most fit to be answered by a jury of merchants, under the instructions of a court of law. The plaintiffs allege that the duty was not authorized by law, but to obtain possession of their goods, they were compelled to pay it, protesting against the right of the government. And they brought an action at law to recover from the collector the excess of duty paid. This course had been sanctioned by previous decisions. It was, in fact, the only effectual course they could take to obtain possession of their goods. A tender of the legal duty, and a replevin, if it would lie, involved the necessity of security for the return of the goods which, if in the power of the importers, might not have been convenient to them. But a replevin is expressly prohibited in such a case by the act of 2d March, 1833.

The question arises on the facts stated. Illegal duties were demanded by the collector and paid to him by the plaintiffs, before they could obtain their goods; and the question is, has their remedy at law been cut off by the statute of 1839? This is a taxing power; the most delicate power that is exercised by the government. It reaches the concerns of the citizen, and takes from him a part of his property for purposes of revenue. The tax should be judicious, and the mode of collecting it should be specially guarded. Care should be taken not to infringe private right in making this public exaction. But, especially, where, in this respect, a wrong has been done to the citizen, the courts should be open to him. His remedy should be without obstruction. But my brethren say that the act of 1839 takes away from the plaintiff all remedy except an appeal to the Secretary. The state courts as well as the federal are closed against the injured party.

The able men who laid the foundation of this government saw that, to secure the great objects they had in view, the executive, legislative and judicial powers, must occupy distinct and independent spheres of action. That the union of these in one individual or body of men constitutes a despotism. And every approximation to this union partakes of this character.

What though no positive injustice be done to the plaintiffs in this case; is that any reason why the great principle involved in it should be yielded? What is this principle? It is nothing less than this: that throughout the whole course of executive action, summary, diversified, and multiform as it is, for wrongs done the citizen, all legal redress may be withdrawn from him; and he may be turned over as a petitioner to the power that did the wrong. If this may be done in the case under consideration, it may, on the same principle, be done in every similar case.

A seizure of a vessel and cargo may be made by an officer under a supposed breach of the revenue law, and the question of forfeiture may be referred to the Secretary of the Treasury. Private property may be taken for public purposes, and the owner may be limited to the remedy, if remedy it may be called, of petitioning some executive officer for remuneration. Military violence may be perpetrated on the person of a citizen or on his property, and his relief may be made to depend on the will of the commander-in-chief. In short, in every line of the executive power, wrongs may be done and legal redress may be denied.

The cases put may seem to be extreme ones, and therefore not likely to happen. But do they not test the principle? I think they do. If Congress may deprive these plaintiffs of their remedy by action at law, they may do the same thing in the cases specified. Indeed it would be difficult to prescribe any limit to legislative action on this subject. It can, at least, be extended through all the ramifications of executive power.

To say that this will never be done, and that the consequences spoken of can never happen, is no answer to the argument. Do the consequences lie within the exercise of the principle? If they do, the consequences must follow a general exercise of the power. The danger is in sanctioning the principle. At this point, I meet the principle and combat it. I object to it because it is dangerous and may be ruinous. It takes from the citizen his rights-rights secured to him by the Constitution; the trial by jury, in a court of law. This is, done by the act of 1839, if it be what it is now construed to be. In this aspect, then, I say, the act is unconstitutional and void. It not only strikes down the rights of the citizen, but it inflicts a blow on the judicial power of the country. It unites, in the same department, the executive and judicial power. And on a subject the most delicate and interesting; and one which, of all others, may most easily be converted into an engine of oppression.

In this government, balances and checks have been carefully adjusted, with a view to secure public and private rights; and any departure from this organization endangers all. We have less to apprehend from a bold and open usurpation by one department of the government, of powers which belong to another, than by a more gradual and insidious course. In my judgment, no principle can be more dangerous than the one mentioned in this case. It covers from legal responsibility executive officers. In the performance of their ministerial duties, however they may disregard and trample upon the rights of the citizen, he can claim no indemnity by an action at law. This doctrine has no standing in England. No ministerial officer in that country is sheltered from legal responsibility. Shall we in this country be less jealous of private rights and of the exercise of power? Is it not our boast that the law is paramount, and that all are subject to it, from the highest officer of the country to its humblest citizen? But can this be the case if any or every executive officer is clothed with the immunities of the sovereignty? If he cannot be sued, what may he not do with impunity? I am sure that my brethren are as sincere as I am, in their convictions of what the law is, in this case; and I have only to regret, that their views do not coincide with those I have stated.

title: Cary v. Curtis/Dissent McLean


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Rh Dimly discerned as morning draweth near

Spreading a radiant pall upon night's bier.

The blessed thing the Sign doth signify

They partly know, and are made glad thereby.

But more the Mother knows, and more she sees

Than soaring angel or than climbing saint;

Her heart familiar grown with mysteries

Of God's own working under love's constraint,

The remedy she knows for man's complaint.

The clouds are all beneath her, and above

The light of life, the radiancy of love.


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10 And He, Whom Lord of love and life we hail,

Is on her bosom borne, a blossom fair;

The pentecostal breath that lifts her veil

Has fanned His royal brow, and stirred His hair.

And kissed His lips just parted for a prayer.

That spirit-wind shall blow, that Face shall shine,

Till all His brothers know their Father's Sign.


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A CLOISTERED garden was the place Where Mary grew, God's perfect flower; One, only one, discerned her grace, And visited her bower.

God's choice was his; by love made strong To guard the Mother of the King; No heart, save hers, had e'er a song So sweet as his to sing.


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Rh To the little lives that ripen

'Neath the shelter of its wings;

God's delays are no denials,

As He waits He sings!

They alone are seers and singers

Who invalidate despair

By the lofty hopes they cherish,

By the gallant deeds they dare,

By the ceaseless aspirations

Of a life of prayer.

Brothers, sisters, lift your voices,

May the rapture of your song


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22 Put to flight the sad misgivings

That have vexed the world too long;

God would have us share the triumph

That shall right the wrong.


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 VOL. II.

OCTOBER, 1817—MARCH, 1818.

Blackwood's Magazine - Volume 2 - Title page portrait.jpg

WILLIAM BLACKWOOD, EDINBURGH;

JOHN MURRAY, LONDON.

1818.


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Rh

! the world's inheritance,

The treasure-trove of happy homes;

Whereby the poorest hut becomes

A fairy-palace of romance.

A cradle is the mother's shrine:

Two lamps o'erhang it—her sweet eyes.

Whose love-light falls, Madonna-wise,

On sleeping infancy divine.


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interesting articles intended for insertion in this Number have, owing to the press of matter, been necessarily delayed; and among others, Reviews of Kirkton's Memoirs, Hazlitt's Shakespeare, Stirling Head's, and the Lament of Tasso;—the Case of the Deaf Mute; Prospectus of a Work intended to give a correct View of the State of Education in Scotland, with some Remarks, and a Specimen of the Mode in which the Work will be executed, by the Rev. Andrew Thomson, A.M. Minister of St George's Church, Edinburgh; Sketches of Foreign Scenery, &c. They will probably appear in our next.

In place of a formal Prospectus, we now lay before our Readers the titles of some of the articles which we have either already received, or which are in preparation by our numerous Correspondents, among whom we are happy to announce almost all the distinguished Contributors to the late Edinburgh Monthly Magazine.

A series of Essays on the Pulpit Eloquence of Scotland, No I.; being a parallel between Mr Alison and Dr Chalmers.

A series of Essays, entitled "Baroniana;" being disquisitions concerning the Origin and Early History of Scottish Families.

Regular Intelligence from the Scientific Circles of Paris, by a distinguished Member of the Institute.

Letter to Walter Scott, Esq. from Mr William Laidlaw, on an interesting Agricultural Subject.

Defence of Drummond of Hawthornden, against an attack in Gifford's Life of Ben Jonson.

On the Life and Writings of Isaac Walton, and his friend Bishop Ken.

Strictures on the Latinity of Dr Gregory.

On the Sports and Games of the Crimea.

"Bibliopola Detectus," being an account of the Tricks, Squabbles, and Schemes of Booksellers.

Notices of Reprints of curious Old Books, No I. Dekker's Gull's Horn Book.

The Knight Errants, No I.

Some Account of the Life and Unpublished Poems of John Finlay, Author of the Vale of Ellerslie.

A series of Essays on the Greek Drama, containing New Translations both of the Dialogue and Chorusses. By the writer of the Analytical Essays on the Early English Dramatic Poets.

A series of Essays on the French Theatre, by the same Gentleman, and on a similar plan.

A series of Essays on the Italian Theatre, containing numerous Translations of Compositions that have never before appeared in English; by the same Gentleman.

An Essay on Romance, prefatory to the Lives of the most eminent Troubadours.

An Account of all the great Public Schools in England, Eton, Winchester, Harrow, Rugby, Christ's Hospital, St Paul's, &c.: to be followed by a more full account than has yet been laid before the Public, of the English Universities; and the subject to be concluded by a series of Essays on Education, containing a complete discussion of the comparative merits of the English and Scottish Systems.

Specimens of Translation from Spanish Poetry, written during the Peninsular War.

Dialogues over a Punch-bowl, No I. II. III. IV.

Historical and Critical Essay on Blue Stockings.

On the Ancient Modes of Interment and Incremation.

Answer to the Question, "Why is the Church of Scotland illiterate?"

On the Latin Poems of Petrarch and Bocaccio.

On Marino and his Poetry, considered in relation with the Writings of Guarini.

On the Infancy and Youth of Shakespeare.

Remarks on Dunlop's History of Fiction, and an Essay on the Prose Romances.

Essays on the Writings of Lope de Vega and Calderon, with Specimens.


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Rh View of the Age of Hadrian.

Translations from the Minor Greek Poets.

Hours before Breakfast, No I. II.

Six Letters from Killarney.

Walks through the Highlands, in a series of Letters.

The Angler's Guide through Scotland, No I. II. III. IV. V.

On the Egotism of the Lake Poets, more especially of Wordsworth.

A Friendly Remonstrance with John Wilson, Esq. on some of the Principles of Poetic Composition adopted by him in his " City of the Plague."

Life of Zachary Boyd, with some extracts from his Works published and unpublished.

Memoir of the Literary Life of John Pinkerton.

On the Marriage-Law of Scotland.

On the Genius of Baxter.

Extraordinary Anecdotes of a Convict.

A Complete Guide through the Lakes of England.

Specimens of Oxford Prize Poetry, with Critical Remarks.

An Essay on Marine Poetry.

On Academical Abuses. Addressed to John Young, Esq. Professor of Greek in the University of Glasgow.

Review of the "Political Works" of James Graham, Esq. Advocate.

A series of Essays on the more obscure, but meritorious Modern Poets.

On the Poets of the West End of the Town, No I.

On the Cockney School of Poetry, No II. III.

Accounts of various living Scottish Versifiers in the lower Ranks of Society, with Specimens; No I.

Letter addressed to C. K. Sharpe, Esq. on his mode of commenting on Church History.

Essays on the Genius of the living Artists of Scotland. No I. Allan.

Three Essays, on the English, Scotch, and Irish Characters.

On Pastoral Poetry.

On Public Opinion regarding Literature.

On what Coleridge calls the "Reading Public."

Ought not Poets to be the best Critics on Poetry?

Is Superstition necessarily pernicious?

On Capital Punishment.

On the Profession of the Law,—an Essay.

On the absurd Belief that the Study of the Mathematics strengthens the Power of Moral Reasoning.

On Military Genius, and the Education of a Soldier.

An Account of different interesting Funeral Ceremonies.

Scraps of Criticism, No I. II. III.

Essays on British Zoology, No I. II. III.

On the Old Maids of the Greeks, and the Mysogynaical Apophthegms of Greek Authors.

Comparison between Ancient and Modern Eloquence, in a series of Essays.

Two Letters to W. E. Leach, Esq. of the British Museum.

On the Modern Method of manufacturing Encyclopædias, addressed to Macvey Napier, Esq.

On "Translation," by Madame de Stael, her last Work, and never published in this Country.

Notices of William Cleland, the Covenanter.

A Dissertation on the "Periodical Criticism" of Great Britain, translated from the German of Schlegel.

Curious Notices of Gawin Douglas, Bishop of Dunkeld.

Remarks on the Melody of certain old Scots Airs.

On the Character of Sappho.

Account of the Life and Poems of Chiabrera.

On Lyrical Poetry. No I. Of the Hebrews.

Remarks on the mean Qualifications of all the English Lexicographers, and on the Etymological Genius of J. H. Tooke.

On the Study of Anglo-Saxon.

On the fashionable Dances of Scotland about the time of Queen Mary.

"Vitruvius Iratus," addressed to the Magistrates of Edinburgh.

MS. Tractate on Elves and Brownies, with Notes.

Duke Hamilton's Ghost, or the Underminer countermined, a Poem, dated 1659.

Account of some remarkable Trials omitted by Lord Fountainhall.

Remarkable Interview between Francis Jeffrey and William Wordsworth; a Dream.

On the Taste of Burger in altering our old Scotch and English Ballads.

On a proposed New Poetical Version of the Psalms.

On Byron's Imitation of the Lake School.


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title: User talk:198.82.90.66


text:
Pambo

Suppose that we part (work done, comes play) With a grave tale told in crambo — As our hearty sires were wont to say — Whereof the hero is Pambo?

Do you happen to know who Pambo was? Nor I — but this much have heard of him: He entered one day a college-class, And asked — was it so absurd of him? —

"May Pambo learn wisdom ere practise it?     In wisdom I fain would ground me: Since wisdom is centred in Holy Writ,      Some psalm to the purpose expound me!"

"That psalm," the Professor smiled, "shall be     Untroubled by doubt which dirtieth Pellucid streams when an ass like thee      Would drink there — the Nine-and-thirtieth.

"Verse First: I said I will look to my ways     That I with my tongue offend not.  How now? Why stare? Art struck in amaze?      Stop, stay! The smooth line hath an end knot!

"He's gone! — disgusted my text should prove     Too easy to need explaining? Had he waited, the blockhead might find I move      To matter that pays remaining!"

Long years went by, when — "Ha, who's this?     Do I come on the restive scholar I had driven to Wisdom's goal, I wis,      But that he slipped the collar?

"What? Arms crossed, brow bent, thought-immersed?     A student indeed! Why scruple To own that the lesson proposed him first      Scarce suited so apt a pupil?

"Come back! From the beggarly elements     To a more recondite issue We pass till we reach, at all events,      Some point that may puzzle . . . Why 'pish' you?"

From the ground looked piteous up the head; "Daily and nightly, Master, Your pupil plods thro' that text you read,     Yet gets on never the faster.

"At the self-same stand, — now old, then young!     I will look to my ways — were doing As easy as saying! — that I with my tongue      Offend not — and 'scape pooh-poohing

"From sage and simple, doctor and dunce?     Ah, nowise! Still doubts so muddy The stream I would drink at once, — but once!      That — thus I resume my study!"

Brother, brother, I share the blame, Arcades sumus ambo! Darkling, I keep my sunrise-aim, Lack not the critic's flambeau, And look to my ways, yet, much the same, Offend with my tongue — like Pambo!

title: Pambo


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54 shining hour" of his leave of absence, and was already engaged. He replied that I would see his post as we went up the river, and then might comprehend why he did not dare ask any woman to be his wife. I argued that if some girl grew fond of him, it would little matter to her where she went, if it were only by her husband's side. I confess, however, that when I saw that lonely place, I thought that it would require extraordinary devotion to follow him there. It was an infantry station, and the soldiers' barracks, officers' quarters, and storehouses were huddled together inside a wall made of logs placed perpendicularly and about fifteen feet high. The sand was so deep about this spot that nothing could be made to grow. Constant gusts of wind over the unprotected plain kept little clouds of fine alkaline dust whirling in the air and filling the eyes and mouth; not a tree was near, as the Missouri—that most uncertain of rivers—kept constantly changing its channel, and the advancing water washed away great hollows in the banks. The post would then have to be moved farther back for safety. The soldiers would be obliged to take up the stockade, and bury the logs as deep as they could to keep them from blowing over. The frail buildings, "built upon the sand," rocked and swayed in the wind.

Beside the forlorn situation of this garrison, no one could go outside to ride or hunt without peril. The warlike Indians considered that side of the river theirs, and roamed up and down it at will. They came incessantly to the small sliding panel in the gates of the stockade, and made demands, which, if not

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Rh to, were followed by howls of rage and threatening gestures. All that the handful of men could do was to conciliate them as best they could. The company was not full, and possibly, all told, there were but fifty white men against hundreds of Indians. The only variety in their lives was the passing of an occasional steamer in the brief summer. Then settled down the pitiless winter, burying them in snow which never left the ground until late in the spring. The mail only reached them at irregular intervals. They were compelled to live almost entirely on commissary stores, for though living in the midst of game it was too hazardous to attempt to hunt. When we found that one regiment had been seven years on the river, and some of the officers had never taken leave of absence, it seems strange that any one stationed at such a post had not gone stark mad. It makes me proud of women when I recall the fact that the wife of an officer did live in that wretched little post afterwards, and did not complain. The cavalry, turning to look their last at that garrison, thanked the good-fortune that had placed them in a branch of the service where there was the active duty of campaigns to vary a life otherwise so monotonous.

The dogs had almost as hard a time to become accustomed to the vagaries of a Dakota climate as we did. We had to be their nurses and surgeons. In our large pack of hounds there were many that had marked individuality of character. Not many days could be passed in their company before we were noticing new peculiarities not previously observed. The general had a droll fashion, as we rode along, of putting words into

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56 their mouths when they got into trouble, fought among themselves, or tried to lord it over one another. One of them had been given us, and had been called by her former owner "Lucy Stone." In vain did we try, out of respect for the life of the useful woman for whom she was named, to rechristen the dog. She would neither listen nor obey if called anything else. I can see her now, sitting deliberately down in the road directly in front of us, and holding up a paw full of cactus thorns. The general would say, "There sits Lucy Stone, and she is saying, 'If you please, sir, since you chose to bring me into a land of bristling earth like this, will you please get down immediately and attend to my foot? Her howls and upturned eyes meant an appeal, certainly, and her master would leap to the ground, sit down in the road, and taking the old creature in his arms, begin the surgery. He carried one of those knives that had many adjuncts, and with the tweezers he worked tenderly and long to extract the tormenting cactus needles. Lucy was a complaining old dame, and when the general saw her sit down, like some fat old woman, he used to say that the old madam was telling him that she "would like to drive a bit, if you please." So it often happened that my travelling-wagon was the hospital for an ill or foot-sore dog. The general had to stop very often to attend to the wounded paws, but experience taught the dogs to make their way very skilfully where the cactus grew. A dancing-master, tripping the steps of instruction, could not have moved more lightly than did they. If there were no one near to whom they could appeal in the human way those dumb

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Rh things have, they learned to draw out the offending thorns with their teeth.

While we were all getting accustomed to the new climate, it was of no use to try to keep the dogs out of my tent. They stood around, and eyed me with such reproachful looks if I attempted to tie up the entrance to the tent and leave them out. If it were very cold when I returned from the dining-tent, I found dogs under and on the camp-bed, and so thickly scattered over the floor that I had to step carefully over them to avoid hurting feet or tails. If I secured a place in the bed I was fortunate. Sometimes, when it had rained, and all of them were wet, I rebelled. The steam from their shaggy coats was stifling; but the general begged so hard for them that I taught myself to endure the air at last. I never questioned the right of the half-grown puppies to everything. Our struggles to raise them, and to avoid the distemper which goes so much harder with blooded than with cur dogs, endeared them to us. When I let the little ones in, it was really comical to hear my husband's arguments and cunningly-devised reasons why the older dogs should follow. A plea was put up for "the hound that had fits;" there was always another that "had been hurt in hunting;" and so on until the tent would hold no more. Fortunately, in pleasant weather, I was let off with only the ill or injured ones for perpetual companions. We were so surrounded with dogs when they were resting after the march, and they slept so soundly from fatigue, that it was difficult to walk about without stepping on them.

My favorite, a great cream-colored stag-hound, was Rh

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 {|align="center" cellpadding=12 ALMAYER'S FOLLY AN OUTCAST OF THE ISLANDS THE NIGGER OF THE "NARCISSUS" TALES OF UNREST LORD JIM: A ROMANCE YOUTH: A NARRATIVE TYPHOON FALK, AND OTHER STORIES NOSTROMO: A TALE OF THE SEABOARD THE MIRROR OF THE SEA THE SECRET AGENT A SET OF SIX UNDER WESTERN EYES A PERSONAL RECORD 'TWIXT LAND AND SEA CHANCE WITHIN THE TIDES VICTORY THE SHADOW-LINE THE ARROW OF GOLD THE RESCUE NOTES ON LIFE AND LETTERS THE ROVER ROMANCE: A NOVEL THE INHERITORS: AN EXTRAVAGANT STORY THE NATURE. OF A CRIME
 * WITH FORD M. HUEFFER
 * WITH FORD M. HUEFFER
 * }

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User talk:120.34.62.21

Welcome

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title: User talk:120.34.62.21


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The Century Dictionary

The first edition was released in various bindings, including a six-volume set, an eight-volume set, a ten-volume set, and a 24-part set. The binding adopted here is the ten-volume set, since the later supplements were published as Volumes 11 and 12.
 * Volume 1
 * Volume 2
 * Volume 3
 * Volume 4
 * Volume 5
 * Volume 6
 * Volume 7
 * Volume 8
 * Volume 9: The Century Cyclopedia of Names (1894)
 * Volume 10: The Century Atlas (1897)
 * Volume 11: The Century Dictionary Supplement 1 (1909)
 * Volume 12: The Century Dictionary Supplement 2 (1909)

title: The Century Dictionary


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58 named "Cardigan." He never gave up trying to be my lap-dog. He was enormous, and yet seemingly unconscious of his size. He kept up a perpetual struggle and scramble on his hind-legs to get his whole body up on my lap. If I pieced myself out with a camp-stool to support him, he closed his eyes in a beatific state and sighed in content while I held him, until my foot went to sleep and I was cramped with his weight. One thing that made me so fond of him was that on one occasion, when he was put in the kennel after an absence, he was almost torn to pieces by the other dogs. He was a brave hound, but he was at fearful odds against so many. Great slices of flesh were torn from his sides, and gaping wounds made by the fang-like teeth showed through his shaggy coat. It was many months before they healed.

Though the stag-hound is gentle with human beings he is a terrible fighter. They stand on their hind-legs and, facing each other, claw and tear like demons. It was always necessary to watch them closely when a new dog, or one that they had not seen for some time, was put in their midst.

I will anticipate a moment and speak of the final fate of Cardigan. When I left Fort Lincoln I asked some one to look out for his welfare, and send him, as soon as possible, to a clergyman who had been my husband's friend. My request was complied with, and afterwards, when the poor old dog died, his new master honored him by having his body set up by the taxidermist, and a place was given him in one of the public buildings in Minneapolis. I cannot help thinking that he was worthy of the tribute, not only because of the testimony thus

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Rh given to the friendship of the people for his master, but because he was the bravest and most faithful of animals.

Most of the country passed over in our route belonged to the Indian Reservations, and the Government was endeavoring to teach the tribes settled there to cultivate the soil. They had hunted off most of the game; an occasional jack-rabbit, the plover, and a few wild ducks were all that were left. I must not forget the maddening curlew. It was not good eating, but it was always exciting to see one. There never was a more exasperating bird to shoot. Time and again a successful shot was prophesied, and I was called to be a witness, only to see finally the surprise of the general when the wily bird soared calmly away. I believe no person was able to bring one down during the entire trip.

As we approached an Indian village, the chiefs came out to receive us. There were many high-sounding words of welcome, translated by our guide, who, having lived among them many years, knew the different dialects. The Government had built some comfortable log-houses for them, in many of which I would have lived gladly. The Indians did not care for them, complaining that they had coughs if they occupied a house. A tepee was put up alongside, in which one or two families lived, while little low lodges, looking like the soldiers' shelter-tents, were used for the young men of the circle to sleep in. The tools and stores given by the Government were packed away in the otherwise empty houses.

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Rh by the sacrifice of stones. This series is taken from Korschelt, and the position as it arose in actual play is shown on Plate 10, depicting a complete game. In Plate 3, Diagram, the white group is shown externally surrounded, and the black stone has just been played at S 9, rendering the group hopeless. The same group is shown on the opposite side of the board at Plate 4, Diagram, but Black has added three more stones and could kill the white group on the next move. Therefore, White plays at A 12, and the situation shown in Plate 4, Diagram, arises, where the same group is shown on the lower edge of the board. Now, if it were White's move, he could save his group by playing at J 2, and the situation which would then arise is shown on Plate 4, Diagram, where White has three perfect "Me," one more than enough. However, it is not White's move, and Black plays on the coveted intersection, and then adds two more stones until the situation shown in Plate 4, Diagram, arises. Then White must again play at S 8 in order to save his stones from immediate capture, and the situation shown at Plate 5, Diagram, comes about. Black again plays at J 18, adds one more stone, and we have the situation shown in Plate 5, Diagram, where it is obvious that White must play at C 11 in order to save his group from immediate capture, thus leaving only two vacant spaces. It is unnecessary to continue the analysis further, but at the risk of explaining what is apparent, it might be pointed out that Black would play on one of these vacant spaces, and if White killed the stone (which it would not pay White to do) Black would play again on the space thus made vacant, and completely surround and kill the entire white group.

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38 A group with five vacant “Me,” as shown in the preceding diagrams, is a situation well known to the Japanese, so much so that they have a special phrase or saying that applies to it, to wit, “Go moku naka de wa ju san te,” which means that it takes thirteen turns to reduce a group having five such “Me” in the center.

As we have previously seen, in actual play this white group would be regarded as “dead” as distinguished from “taken,” and this series of moves would not be played out. White obviously would not play in the space, and he could not demand that Black play therein in order to complete the actual surrounding of the stones, and the only purpose of giving this series of diagrams is to show theoretically how the white stones can be killed. However, the killing of these stones would be necessary if the surrounding black line were in turn attacked (“Semeai”), in which case it might might be a race to see whether the internal white stones could be completely surrounded and killed before the external white group could get in complete contact with the black line.

Stones which are sacrificed in order to kill a larger group are called “Sute ishi” by the Japanese, from “Suteru,” meaning “to cast or throw away,” and “Ishi,” a “stone.”

It may be noted that if a group contains four connected vacant intersections in a line it is safe, because if the adversary attempts to reduce it, two disconnected “Me” can be formed in the space by simply playing a stone adjacent to the adversary’s stone, as shown in Plate 5, Diagram, where if Black plays for instance at K 11, White replies at L 11, and secures two “Me.” Even if these four connected vacant intersections are not in a straight line, they

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Rh are nevertheless sufficient for the purpose, provided the fourth "Me" is connected at the end of the three, and the Japanese express this by their saying "Magari shimoku wa me," or four "Me" turning a corner. Neither does it make any difference whether the four connected "Me" are in the center of the board or along the edge. On Plate 5, Diagrams and, are examples of "Magari shimoku wa me," and they both are safe. It is interesting, however, to compare these situations with that shown at Plate 4, Diagram, where the fourth intersection is not connected at the end of the line, and which group Black can kill if it is his move, as we already have seen.

If, however, such a group contains only three connected vacant intersections, and it is the adversary's move, it can be killed, because the adversary by playing on the middle intersection can prevent the formation of two disconnected "Me." We saw a group of this kind on Plate 2, Diagram, which can be killed by playing at N 11. Obviously, if it is Black's move in this case, the group can be saved by playing at N 11; obviously, also, if White, being a mere novice, plays elsewhere than at N 11, Black saves the stones by playing there and killing the white stone. Plate 5, Diagram, shows another group containing only three vacant intersections. These can be killed if it is Black's move by playing at A 1. On the other hand, if it is White's move, he can save them by playing on the same point.

Of course, if a group of stones contains a large number of vacant intersections, it is perfectly safe unless the vacant space is so large that the adversary can have a chance of forming an entire new living group of stones therein.

We now come to the one exception to the rule that the

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40 players may place their stones at will on any vacant intersection on the board. This rule is called the rule of "Ko," and is shown on Plate 6, Diagram. Assuming that it is White's turn to play, he can play at D 17 and take the black stone at C 17 which is already surrounded on three sides, and the position shown in Plate 6, Diagram, would then arise. It is now White'sBlack's [sic] turn to play, and if he plays at C 13, the white stone which has just been put down will be likewise surrounded and could be at once taken from the board. Black, however, is not permitted to do this immediately, but must first play somewhere else, and this gives White the choice of filling up this space (C 13) and defending his stone, or of following his adversary to some other portion of the board. The reason for this rule in regard to "Ko" is very clear. If the players were permitted to take and retake the stones as shown in the diagram, the series of moves would be endless, and the game could never be finished. It is something like perpetual check in Chess, but the Japanese, in place of calling the game a draw, compel the second player to move elsewhere and thus allow the game to continue. In an actual game when a player is prevented from retaking a stone by the rule of "Ko," he always tries to play in some other portion of the board where he threatens a larger group of stones than is involved in the situation where "Ko" occurs, and thus often he can compel his adversary to follow him to this other part of the field, and then return to retake in "Ko." His adversary then will play in some part of the field, if possible, where another group can be threatened, and so on. Sometimes in a hotly contested game the battle will rage around a place where "Ko" occurs and the space will be taken and retaken several times.

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PUBLISHED BY

NEW YORK


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Natural Law

 * Natural Law; or The Science of Justice, by Spooner, Lysander (1882)
 * "Natural Law" by Holmes, Oliver Wendell, Jr. in Harvard Law Review 32 (1918)
 * "Natural Law" by Holmes, Oliver Wendell, Jr. in Harvard Law Review 32 (1918)

title: Natural Law


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Page:The Century Dictionary Volume 12.djvu/10

 Copyright,

1889, 1890, 1891, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901,

1902, 1903, 1904, 1905, 1906, 1909, 1910,

By

All Rights Reserved.

PUBLISHERS' NOTE ON THE COMPLETED WORK

publication of the Atlas, which is incorporated in the present edition, completed the plan of The Century Dictionary and Cyclopedia. As the Cyclopedia of Names grew out of the Dictionary and supplemented it on its encyclopedic side, so the Atlas grew out of the Cyclopedia, and serves as an extension of its geographical material. Each of these works deals with a different part of the great field of words,—common words and names,—while the three, in their unity, constitute a work of reference which practically covers the whole of that field. The two new volumes now issued make the material of the Dictionary and Cyclopedia complete. The total number of words and names defined or otherwise described in the completed work is over 500,000.

The special features of each of these several parts of the book are described in the Prefaces which will be found in the first, ninth, tenth, and eleventh volumes. It need only be said that the definitions of the common words of the language are for the most part stated encyclopedically, with a vast amount of technical, historical, and practical information in addition to a wealth of purely philological material; that the same encyclopedic method is applied to proper names—names of persons, places, characters in fiction, books—in short, of everything to which a name is given; and that in the Atlas geographical names, and much besides, are exhibited with a completeness and serviceableness seldom equaled. Of the Century Dictionary and Cyclopedia as a whole, therefore, it may be said that it is in its own field the most complete presentation of human knowledge—scientific, historical, and practical—that exists.

Moreover, the method of distributing this encyclopedic material under a large number of headings, which has been followed throughout, makes each item of this great store of information far more accessible than in works in which a different system is adopted.

The first edition of The Century Dictionary was completed in 1891, that of the Century Cyclopedia of Names in 1894, that of the Atlas in 1897, and that of the two new volumes in 1909. Each of the works published at the earlier dates has been subjected to repeated careful revisions, and the results of this scrutiny are comprised in this edition.


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PUBLISHED BY

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The Century Dictionary/Volume 12

{{{!}} class="aux auxtoc"
 * Abbreviations — Key to Pronunciation — Signs — Special Explanations
 * Abbreviations — Key to Pronunciation — Signs — Special Explanations

M — N — O — P — Q — R — S — T — U — V — W — X — Y — Z
 * }

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User talk:Ruslik0

— billinghurst  sDrewth  13:32, 20 December 2010 (UTC)

title: User talk:Ruslik0