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Vantagepoint Venture Partners 1996 v. Examen, Inc./Opinion of the Court

[p1109] HOLLAND, Justice:

This is an expedited appeal from the Court of Chancery following the entry of a final judgment on the pleadings. We have concluded that the judgment must be affirmed.

Delaware Action
On March 3, 2005, the plaintiff-appellant, Examen, Inc. ("Examen"), filed a Complaint in the Court of Chancery against VantagePoint Venture Partners, Inc. ("VantagePoint"), a Delaware Limited Partnership and an Examen Series A Preferred shareholder, seeking a judicial declaration that pursuant to the controlling Delaware law and under the Company's Certificate of Designations of Series A Preferred Stock ("Certificate of Designations"), VantagePoint was not entitled to a class vote of the Series A Preferred Stock on the proposed merger between Examen and a Delaware subsidiary of Reed Elsevier Inc.

California Action
On March 8, 2005, VantagePoint filed an action in the California Superior Court seeking: (1) a declaration that Examen was required to identify whether it was a "quasi-California corporation" under section 2115 of the California Corporations Code ; (2) a declaration that Examen was [p1110]  a quasi-California corporation pursuant to California Corporations Code section 2115 and therefore subject to California Corporations Code section 1201(a), and that, as a Series A Preferred shareholder, VantagePoint was entitled to vote its shares as a separate class in connection with the proposed merger; (3) injunctive relief; and (4) damages incurred as the result of alleged violations of California Corporations Code sections 2111(a)(2)(F) and 1201.

Delaware Action Decided
On March 10, 2005, the Court of Chancery granted Examen's request for an expedited hearing on its motion for judgment on the pleadings. On March 21, 2005, the California Superior Court stayed its action pending the ruling of the Court of Chancery. On March 29, 2005, the Court of Chancery ruled that the case was governed by the internal affairs doctrine as explicated by this Court in McDermott v. Lewis. In applying that doctrine, the Court of Chancery held that Delaware law governed the vote that was required to approve a merger between two Delaware corporate entities.

On April 1, 2005, VantagePoint filed a notice of appeal with this Court. On April 4, 2005, VantagePoint sought to enjoin the merger from closing pending its appeal. On April 5, 2005, this Court denied VantagePoint's request to enjoin the merger from closing, but granted its request for an expedited appeal.

Merger Without Mootness
Following this Court's ruling on April 5, 2005, Examen and the Delaware subsidiary of Reed Elsevier consummated the merger that same day. This Court directed the parties to address the issue of mootness, simultaneously with the expedited briefing that was completed on April 13, 2005. VantagePoint argues that if we agree with its position "that a class vote was required, then VantagePoint could pursue remedies for loss of this right, including rescission of the Merger, rescissory damages or monetary damages." Examen submits that "the need for final resolution of the validity of the merger vote remains important to the parties and to the public interest" because a decision from this Court will conclusively determine the parties' rights with regard to the law that applies to the merger vote. We have concluded that this appeal is not moot.

Facts
Examen was a Delaware corporation engaged in the business of providing web-based [p1111] legal expense management solutions to a growing list of Fortune 1000 customers throughout the United States. Following consummation of the merger on April 5, 2005, LexisNexis Examen, also a Delaware corporation, became the surviving entity. VantagePoint is a Delaware Limited Partnership organized and existing under the laws of Delaware. VantagePoint, a major venture capital firm that purchased Examen Series A Preferred Stock in a negotiated transaction, owned eighty-three percent of Examen's outstanding Series A Preferred Stock (909,091 shares) and no shares of Common Stock.

On February 17, 2005, Examen and Reed Elsevier executed the Merger Agreement, which was set to expire on April 15, 2005, if the merger had not closed by that date. Under the Delaware General Corporation Law and Examen's Certificate of Incorporation, including the Certificate of Designations for the Series A Preferred Stock, adoption of the Merger Agreement required the affirmative vote of the holders of a majority of the issued and outstanding shares of the Common Stock and Series A Preferred Stock, voting together as a single class. Holders of Series A Preferred Stock had the number of votes equal to the number of shares of Common Stock they would have held if their Preferred Stock was converted. Thus, VantagePoint, which owned 909,091 shares of Series A Preferred Stock and no shares of Common Stock, was entitled to vote based on a converted number of 1,392,727 shares of stock.

There were 9,717,415 total outstanding shares of the Company's capital stock (8,626,826 shares of Common Stock and 1,090,589 shares of Series A Preferred Stock), representing 10,297,608 votes on an as-converted basis. An affirmative vote of at least 5,148,805 shares, constituting a majority of the outstanding voting power on an as-converted basis, was required to approve the merger. If the stockholders were to vote by class, VantagePoint would have controlled 83.4 percent of the Series A Preferred Stock, which would have permitted VantagePoint to block the merger. VantagePoint acknowledges that, if Delaware law applied, it would not have a class vote.

Chancery Court Decision
The Court of Chancery determined that the question of whether VantagePoint, as a holder of Examen's Series A Preferred Stock, was entitled to a separate class vote on the merger with a Delaware subsidiary of Reed Elsevier, was governed by the internal affairs doctrine because the issue implicated "the relationship between a corporation and its stockholders." The Court of Chancery rejected VantagePoint's argument that section 2115 of the California Corporation Code did not conflict with Delaware law and operated only in addition to rights granted under Delaware corporate law. In doing so, the Court of Chancery noted that section 2115 "expressly states that it operates 'to the exclusion of the law of the jurisdiction in which [the company] is incorporated.'"

Specifically, the Court of Chancery determined that section 2115's requirement that stockholders vote as a separate class conflicts with Delaware law, which, together with Examen's Certificate of Incorporation, mandates that the merger be authorized by a majority of all Examen stockholders voting together as a single class. The Court of Chancery concluded that it could not enforce both Delaware and California law. Consequently, the Court of Chancery decided that the issue presented was solely one of choice-of-law, and that it need not determine the constitutionality of section 2115.

[p1112]

VantagePoint's Argument
According to VantagePoint, "the issue presented by this case is not a choice of law question, but rather the constitutional issue of whether California may promulgate a narrowly-tailored exception to the internal affairs doctrine that is designed to protect important state interests." VantagePoint submits that "Section 2115 was designed to provide an additional layer of investor protection by mandating that California's heightened voting requirements apply to those few foreign corporations that have chosen to conduct a majority of their business in California and meet the other factual prerequisite of Section 2115." Therefore, VantagePoint argues that " Delaware either must apply the statute if California can validly enact it, or hold the statute unconstitutional if California cannot." We note, however, that when an issue or claim is properly before a tribunal, "the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."

Standard of Review
In granting Examen's Motion for Judgment on the Pleadings, the Court of Chancery held that, as a matter of law, the rights of stockholders to vote on the proposed merger were governed by the law of Delaware - Examen's state of incorporation - and that an application of Delaware law resulted in the Class A Preferred shareholders having no right to a separate class vote. The issue of whether VantagePoint was entitled to a separate class vote of the Series A Preferred Stock on the merger is a question of law that this Court reviews de novo.

Internal Affairs Doctrine
In CTS Corp. v. Dynamics Corp. of Am., the United States Supreme Court stated that it is "an accepted part of the business landscape in this country for States to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares." In CTS, it was also recognized that "[a] State has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs." The internal affairs doctrine is a long-standing choice of law principle which recognizes that only one state should have the authority to regulate a corporation's internal affairs - the state of incorporation.

The internal affairs doctrine developed on the premise that, in order to prevent corporations from being subjected to inconsistent legal standards, the authority to regulate a corporation's internal affairs should not rest with multiple jurisdictions. [p1113] It is now well established that only the law of the state of incorporation governs and determines issues relating to a corporation's internal affairs. By providing certainty and predictability, the internal affairs doctrine protects the justified expectations of the parties with interests in the corporation.

The internal affairs doctrine applies to those matters that pertain to the relationships among or between the corporation and its officers, directors, and shareholders. The Restatement (Second) of Conflict of Laws § 301 provides: "application of the local law of the state of incorporation will usually be supported by those choice-of-law factors favoring the need of the interstate and international systems, certainty, predictability and uniformity of result, protection of the justified expectations of the parties and ease in the application of the law to be applied." Accordingly, the conflicts practice of both state and federal courts has consistently been to apply the law of the state of incorporation to "the entire gamut of internal corporate affairs."

The internal affairs doctrine is not, however, only a conflicts of law principle. Pursuant to the Fourteenth Amendment Due Process Clause, directors and officers of corporations "have a significant right . . . to know what law will be applied to their actions" and "stockholders . . . have a right to know by what standards of accountability they may hold those managing the corporation's business and affairs." Under the Commerce Clause, a state "has no interest in regulating the internal affairs of foreign corporations." Therefore, this Court has held that an "application of the internal affairs doctrine is mandated by constitutional principles, except in the 'rarest situations,'" e.g., when "the law of the state of incorporation is inconsistent with a national policy on foreign or interstate commerce."

California Section 2115
VantagePoint contends that section 2115 of the California Corporations Code is a limited exception to the internal affairs doctrine. Section 2115 is characterized as an outreach statute because it requires certain foreign corporations to conform to a broad range of internal affairs provisions. Section 2115 defines the foreign corporations for which the California statute has an outreach effect as those foreign [p1114]  corporations, half of whose voting securities are held of record by persons with California addresses, that also conduct half of their business in California as measured by a formula weighing assets, sales and payroll factors.

VantagePoint argues that section 2115 "mandates application of certain enumerated provisions of California's corporation law to the internal affairs of 'foreign' corporations if certain narrow factual prerequisites [set forth in section 2115] are met." Under the California statute, if more than one half of a foreign corporation's outstanding voting securities are held of record by persons having addresses in California (as disclosed on the books of the corporation) on the record date, and the property, payroll and sales factor tests are satisfied, then on the first day of the income year, one hundred and thirty five days after the above tests are satisfied, the foreign corporation's articles of incorporation are deemed amended to the exclusion of the law of the state of incorporation. If the factual conditions precedent for triggering section 2115 are established, many aspects of a corporation's internal affairs are purportedly governed by California corporate law to the exclusion of the law of the state of incorporation.

In her comprehensive analysis of the internal affairs doctrine, Professor Deborah A. DeMott examined section 2115. As she astutely points out:

"In contrast to the certainty with which the state of incorporation may be determined, the criteria upon which the applicability of section 2115 hinges are not constants. For example, whether half of a corporation's business is derived from California and whether half of its voting securities have record holders with California addresses may well vary from year to year (and indeed throughout any given year). Thus, a corporation might be subject to section 2115 one year but not the next, depending on its situation at the time of filing the annual statement required by section 2108."

Internal Affairs Require Uniformity
In McDermott, this Court noted that application of local internal affairs law (here California's section 2115) to a foreign corporation (here Delaware) is "apt to produce inequalities, intolerable confusion, and uncertainty, and intrude into the domain of other states that have a superior claim to regulate the same subject matter [p1115]  . . . ." Professor DeMott's review of the differences and conflicts between the Delaware and California corporate statutes with regard to internal affairs, illustrates why it is imperative that only the law of the state of incorporation regulate the relationships among a corporation and its officers, directors, and shareholders. To require a factual determination to decide which of two conflicting state laws governs the internal affairs of a corporation at any point in time, completely contravenes the importance of stability within inter-corporate relationships that the United States Supreme Court recognized in CTS.

In ''Kamen v. Kemper Fin. Serv.'', the United States Supreme Court reaffirmed its commitment to the need for stability that is afforded by the internal affairs doctrine. In Kamen, the issue was whether the federal courts could superimpose a universal-demand rule upon the corporate doctrine of all states. The United States Supreme Court held that a federal court universal-demand rule would cause disruption to the internal affairs of corporations and that its holding in Burks had counseled "against establishing competing federal - and state - law principles on the allocation of managerial prerogatives within [a] corporation." In Kamen v. Kemper, the Restatement (Second) of Conflict of Laws was cited for the proposition that "uniform treatment of directors, officers and shareholders is an important objective which can only be attained by having the rights and liabilities of those persons with respect to the corporation governed by a single law." If a universal-demand rule in federal courts would be disruptive because the demand rule in a state court would be different, a fortiori, it would be disruptive for section 2115's panoply of different internal affairs rules to operate intermittently within corporate relationships under either the law of California or the law of the state of incorporation - dependent upon the vissitudes of the ever-changing facts.

State Law of Incorporation Governs Internal Affairs
In McDermott, this Court held that the "internal affairs doctrine is a major tenet of Delaware corporation law having important federal constitutional underpinnings." Applying Delaware's well-established choice-of-law rule - the internal affairs doctrine - the Court of Chancery recognized that Delaware courts must apply the law of the state of incorporation to issues involving corporate internal affairs, and that disputes concerning a shareholder's right to vote fall squarely within the purview of the internal affairs doctrine.

Examen is a Delaware corporation. The legal issue in this case - whether a [p1116]  preferred shareholder of a Delaware corporation had the right, under the corporation's Certificate of Designations, to a Series A Preferred Stock class vote on a merger - clearly involves the relationship among a corporation and its shareholders. As the United States Supreme Court held in CTS, "no principle of corporation law and practice is more firmly established than a State's authority to regulate domestic corporations, including the authority to define the voting rights of shareholders."

In CTS, the Supreme Court held that the Commerce Clause "prohibits States from regulating subjects that 'are in their nature national, or admit only of one uniform system, or plan of regulation,'" and acknowledged that the internal affairs of a corporation are subjects that require one uniform system of regulation. In CTS, the Supreme Court concluded that "so long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one State." Accordingly, we hold Delaware's well-established choice of law rules and the federal constitution mandated that Examen's internal affairs, and in particular, VantagePoint's voting rights, be adjudicated exclusively in accordance with the law of its state of incorporation, in this case, the law of Delaware.

Any Forum - Internal Affairs - Same Law
VantagePoint acknowledges that the courts of Delaware, as the forum state, may apply Delaware's own substantive choice of law rules. VantagePoint argues, however, that Delaware's "choice" to apply the law of the state of incorporation to internal affairs issues - notwithstanding California's enactment of section 2115 - will result in future forum shopping races to the courthouse. VantagePoint submits that, if the California action in these proceedings had been decided first, the California Superior Court would have enjoined the merger until it was factually determined whether section 2115 is applicable. If the statutory prerequisites were found to be factually satisfied, VantagePoint submits that the California Superior Court would have applied the internal affairs law reflected in section 2115, "to the exclusion" of the law of Delaware - the state where Examen is incorporated.

In support of those assertions, VantagePoint relies primarily upon a 1982 decision by the California Court of Appeals in Wilson v. Louisiana-Pacific Resources, Inc. In Wilson v. Louisiana-Pacific Resources, Inc., a panel of the California Court of Appeals held that section 2115 did not violate the federal constitution by applying the California Code's mandatory cumulative [p1117] voting provision to a Utah corporation that had not provided for cumulative voting but instead had elected the straight voting structure set forth in the Utah corporation statute. The court in Wilson did not address the implications of the differences between the Utah and California corporate statutes upon the expectations of parties who chose to incorporate in Utah rather than California. As Professor DeMott points out, "although it is possible under the Utah statute for the corporation's charter to be amended by the shareholders and the directors, that mechanical fact does not establish California's right to coerce such an amendment" whenever the factual prerequisites of section 2115 exist.

Wilson was decided before the United States Supreme Court's decision in CTS and before this Court's decision in McDermott. Ten years after Wilson, the California Supreme Court cited with approval this Court's analysis of the internal affairs [p1118]  doctrine in McDermott, in particular, our holding that corporate voting rights disputes are governed by the law of the state of incorporation. Two years ago, in State Farm v. Superior Court, a different panel of the California Court of Appeals questioned the validity of the holding in Wilson following the broad acceptance of the internal affairs doctrine over the two decades after Wilson was decided. In State Farm, the court cited with approval the United States Supreme Court decision in CTS Corp. v. Dynamics and our decision in McDermott. In State Farm, the court also quoted at length that portion of our decision in McDermott relating to the constitutional imperatives of the internal affairs doctrine.

Since Wilson was decided, the United States Supreme Court has recognized the constitutional imperatives of the internal affairs doctrine. In Draper v. Gardner, this Court acknowledged the Wilson opinion in a footnote and nevertheless permitted the dismissal of a Delaware action in favor of a California action in which a California court would be called upon to decide the internal affairs "demand" issue involving a Delaware corporation. As stated in Draper, we had no doubt that after the Kamen and CTS holdings by the United States Supreme Court, the California courts would "apply Delaware [demand] law [to the internal affairs of a Delaware corporation, given the vitality and constitutional underpinnings of the internal affairs doctrine." We adhere to that view in this case.

Conclusion
The judgment of the Court of Chancery is affirmed. The Clerk of this Court is directed to issue the mandate immediately.


text: Talk:Vantagepoint Venture Partners 1996 v. Examen, Inc.

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 sixteen years of age) get, in addition, pint of milk. Dinner, 8 oz. of bread daily, with 1 pint of porridge on three days of the week, 8 oz. of potatoes (representing the vegetable element) on two other days, and 8 oz. of suet pudding (representing the fatty element) on the other two days. Supper, the breakfast fare repeated.

Class B diet, which is also given to (1) prisoners on remand or awaiting trial, (2) offenders of the 1st division who do not maintain themselves, (3) offenders of the 2nd division and (4) debtors, is as shown in Table I.

Class C diet is class B amplified, and is given to those prisoners serving sentences of three months and over.

The dietary of convict prisons, in which prisoners are all under long sentence, is divided into a diet for convicts employed at hard labour and a diet for convicts employed at sedentary, indoor and light labour. It will be found set forth in the Blue-book mentioned above. The sparest of all prison diets is called “punishment diet,” and is administered for offences against the internal discipline of the prison. It is limited to a period of three days. It consists of 1 ℔ of bread and as much water as the prisoner chooses to drink.

In French prisons the dietary is nearly two pounds weight of bread, with two meals of thin soup (breakfast and dinner) made from potatoes, beans or other vegetables, and on two days a week made from meat. In France the canteen system is in vogue, additional food, such as sausages, cheese, fruit, &c., may be obtained by the prisoner, according to the wages he receives for his labours. The dietary of Austrian prisons is 1 ℔ of bread daily, a dinner of soup on four days of the week, and of meat on the other three days, with a supper of soup or vegetable stew. Additional food can be purchased by the prisoner out of his earnings.

These dietaries may be taken as more or less typical of the ordinary prison fare in most civilized countries, though in some countries it may err on the side of severity, as in Sweden, prisoners being given only two meals a day, one at mid-day and one at seven p.m., porridge or gruel being the principal element in both meals. On the other hand, the prison dietaries of many of the United States prisons go to the other extreme, fresh fish, green vegetables, even coffee and fruit, figuring in the dietary.

Another class of dietary is that given to paupers. In England, until 1900, almost every individual workhouse had its own special dietary, with the consequence that many erred on the side of scantiness and unsuitability, while others were too lavish. By an order of the Local Government Board of that year, acting on a report of a committee, all inmates of workhouses, with the exception of the sick, children under three years of age, and certain other special cases, are dieted in accordance with certain dietary tables as framed and settled by the board. The order contained a great number of different rations, it being left to the discretion of the guardians as to the final settlement of the tables. For adult inmates the dietary tables are for each sex respectively, two in number, one termed “plain diet” and the other “infirm diet.” All male inmates certified as healthy able-bodied persons receive plain diet only. All inmates, however, in workhouses are kept employed according to their capacity and ability, and this is taken into consideration in giving allowances of food. For instance, for work with sustained exertion, such as stone-breaking, digging, &c., more food is given than for work without sustained exertion, such as wood-chopping, weeding or sewing. Table II. shows an example of a workhouse dietary.

In the casual wards of workhouses the dietary is plainer, consisting of 8 oz. of bread, or 6 oz. of bread and one pint of gruel or broth for breakfast; the same for supper; for dinner 8 oz. of bread and 1 oz. of cheese or 6 oz. of bread and one pint of soup. The American poor law system is based broadly on that of England, and the methods of relief are much the same. Each state, however, makes its own regulations, and there is considerable diversity in workhouse dietaries in consequence. The German system of poor relief is more methodical than those of England and America. The really deserving are treated

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 with more commiseration, and a larger amount of outdoor relief is given than in England. There is no casual ward, tramps and beggars being liable to penal treatment, but there are “relief stations,” somewhat corresponding to casual wards, where destitute persons tramping from one place to another can obtain food and lodging in return for work done.

In the British navy certain staple articles of diet are supplied to the men to the value approximately of 6d. per diem—the standard government ration—and, in addition, a messing allowance of 4d. per diem, which may either be expended on luxuries in the canteen, or in taking up government provisions on board ship, in addition to the standard ration. The standard ration as recommended in 1907 by a committee appointed to inquire into the question of victualling in the navy is as follows:—

Service Afloat.

1 ℔ bread (or ℔ bread and  ℔ trade flour). ℔ fresh meat. 1 ℔ fresh vegetables. pint spirit. 4 oz. sugar. oz. tea (or 1 oz. coffee for every oz. tea). oz. ordinary or soluble chocolate (or 1 oz. coffee). oz. condensed milk. 1 oz. jam or marmalade. 4 oz. preserved meat on one day of the week in harbour, or on two days at sea. Mustard, pepper, vinegar, and salt as required.

Substitute for soft bread when the latter is not available— ℔ biscuit (new type) or 1 ℔ flour.

Substitutes for fresh meat when the latter is not available:—

On shore establishments and depot ships pt. fresh milk is issued in lieu of the  oz. of condensed milk.

In the United States navy there is more liberality and variety of diet, the approximate daily cost of the rations supplied being 1s. 3d. per head. In the American mercantile marine, too, according to the scale sanctioned by act of Congress (December 21, 1898) for American ships, the seaman is better off than in the British merchant service. The scale is shown in Table III.

In the British mercantile marine there is no scale of provisions prescribed by the Board of Trade; there is, however, a traditional scale very generally adopted, having the sanction of custom only and seldom adhered to. The following dietary scale for steerage passengers, laid down in the 12th schedule of the Merchant Shipping Act 1894, is of interest. See Table IV.

Certain substitutions may be made in this scale at the option of the master of any emigrant ship, provided that the substituted articles are set forth in the contract tickets of the steerage passengers.

—Weekly, per Statute Adult.

In the British army the soldier is fed partly by a system of co-operation. He gets a free ration from government of 1 ℔ of bread and ℔ of meat; in addition there is a messing allowance of 3d. per man per day. He is able to supplement his food by purchases from the canteen. Much depends on the individual management in each regiment as to the satisfactory expenditure of the messing allowance. In some regiments an allowance is made from the canteen funds towards messing in addition to that granted by the government. The ordinary field ration of the British soldier is 1 ℔ of bread or 1 ℔ of biscuit; 1 ℔ of fresh, salt or preserved meat; oz. of coffee; 1/6 oz. of tea; 2 oz. of sugar;  oz. of salt,  oz. of pepper, the whole weighing something over 2 ℔ 3 oz. This cannot be looked on as a fixed ration, as it varies in different campaigns, according to the country into which the troops may be sent. The Prussian soldier during peace gets weekly from his canteen 11 ℔ 1 oz. of rye bread and not quite 2 ℔ of meat. This is obviously insufficient, but under the conscription system it is reckoned that he will be able to make up the deficiency out of his own private means, or obtain charitable contributions from his friends. In the French infantry of the line each man during peace gets weekly 15 ℔ of bread, 3 ℔ of meat, 2 ℔ of haricot beans or other vegetables, with salt and pepper, and 1 oz. of brandy.

An Austrian under the same circumstances receives 13·9 ℔ of bread, ℔ of flour and 3·3 ℔ of meat.

The Russian conscript is allowed weekly:—

 DIETETICS, the science of diet, i.e. the food and nutrition of man in health and disease (see ). This article deals mainly with that part of the subject which has to do with the composition and nutritive values of foods and their adaptation to the use of people in health. The principal topics considered are: (1) Food and its functions; (2) Metabolism of matter and energy; (3) Composition of food materials; (4) Digestibility of food; (5) Fuel value of food; (6) Food consumption; (7) Quantities of nutrients needed; (8) Hygienic economy of food; (9) Pecuniary economy of food.

1. Food and its Functions.—For practical purposes, food may be defined as that which, when taken into the body, may be utilized for the formation and repair of body tissue, and the production of energy. More specifically, food meets the requirements of the body in several ways. It is used for the formation of the tissues and fluids of the body, and for the restoration of losses of substance due to bodily activity. The potential energy of the food is converted into heat or muscular work or other forms of energy. In being thus utilized, food protects body substance or previously acquired nutritive material from consumption. When the amount

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 of food taken into the body is in excess of immediate needs, the surplus may be stored for future consumption.

Ordinary food materials, such as meat, fish, eggs, vegetables, &c., consist of inedible materials, or refuse, e.g. bone of meat and fish, shell of eggs, rind and seed of vegetables; and edible material, as flesh of meat and fish, white and yolk of eggs, wheat flour, &c. The edible material is by no means a simple substance, but consists of water, and some or all of the compounds variously designated as food stuffs, proximate principles, nutritive ingredients or nutrients, which are classified as protein, fats, carbohydrates and mineral matters. These have various functions in the nourishment of the body.

The refuse commonly contains compounds similar to those in the food from which it is derived, but since it cannot be eaten, it is usually considered as a non-nutrient. It is of importance chiefly in a consideration of the pecuniary economy of food. Water is also considered as a non-nutrient, because although it is a constituent of all the tissues and fluids of the body, the body may obtain the water it needs from that drunk; hence, that contained in the food materials is of no special significance as a nutrient.

Mineral matters, such as sulphates, chlorides, phosphates and carbonates of sodium, potassium, calcium, &c., are found in different combinations and quantities in most food materials. These are used by the body in the formation of the various tissues, especially the skeletal and protective tissues, in digestion, and in metabolic processes within the body. They yield little or no energy, unless perhaps the very small amount involved in their chemical transformation.

Protein is a term used to designate the whole group of nitrogenous compounds of food except the nitrogenous fats. It includes the albuminoids, as albumin of egg-white, and of blood serum, myosin of meat (muscle), casein of milk, globulin of blood and of egg yolk, fibrin of blood, gluten of flour; the gelatinoids, as gelatin and allied substances of connective tissue, collagen of tendon, ossein of bone and the so-called extractives (e.g. creatin) of meats; and the amids (e.g. asparagin) and allied compounds of vegetables and fruits.

The albuminoids and gelatinoids, classed together as proteids, are the most important constituents of food, because they alone can supply the nitrogenous material necessary for the formation of the body tissues. For this purpose, the albuminoids are most valuable. Both groups of compounds, however, supply the body with energy, and the gelatinoids in being thus utilized protect the albuminoids from consumption for this purpose. When their supply in the food is in excess of the needs of the body, the surplus proteids may be converted into body fat and stored.

The so-called extractives, which are the principal constituents of meat extract, beef tea and the like, act principally as stimulants and appetizers. It has been believed that they serve neither to build tissue nor to yield energy, but recent investigations indicate that creatin may be metabolized in the body.

The fats of food include both the animal fats and the vegetable oils. The carbohydrates include such compounds as starches, sugars and the fibre of plants or cellulose, though the latter has but little value as food for man. The more important function of both these classes of nutrients is to supply energy to the body to meet its requirements above that which it may obtain from the proteids. It is not improbable that the atoms of their molecules as well as those from the proteids are built up into the protoplasmic substance of the tissues. In this sense, these nutrients may be considered as being utilized also for the formation of tissue; but they are rather the accessory ingredients, whereas the proteids are the essential ingredients for this purpose. The fats in the food in excess of the body requirements may be stored as body fat, and the surplus carbohydrates may also be converted into fat and stored.

To a certain extent, then, the nutrients of the food may substitute each other. All may be incorporated into the protoplasmic structure of body tissue, though only the proteids can supply the essential nitrogenous ingredients; and apart from the portion of the proteid material that is indispensable for this purpose, all the nutrients are used as a source of energy. If the supply of energy in the food is not sufficient, the body will use its own proteid and fat for this purpose. The gelatinoids, fats and carbohydrates in being utilized for energy protect the body proteids from consumption. The fat stored in the body from the excess of food is a reserve of energy material, on which the body may draw when the quantity of energy in the food is insufficient for its immediate needs.

What compounds are especially concerned in intellectual activity is not known. The belief that fish is especially rich in phosphorus and valuable as a brain food has no foundation in observed fact.

2. Metabolism of Matter and Energy.—The processes of nutrition thus consist largely of the transformation of food into body material and the conversion of the potential energy of both food and body material into the kinetic energy of heat and muscular work and other forms of energy. These various processes are generally designated by the term metabolism. The metabolism of matter in the body is governed largely by the needs of the body for energy. The science of nutrition, of which the present subject forms a part, is based on the principle that the transformations of matter and energy in the body occur in accordance with the laws of the conservation of matter and of energy. That the body can neither create nor destroy matter has long been universally accepted. It would seem that the transformation of energy must likewise be governed by the law of the conservation of energy; indeed there is every reason a priori to believe that it must; but the experimental difficulties in the way of absolute demonstration of the principle are considerable. For such demonstration it is necessary to prove that the income and expenditure of energy are equal. Apparatus and methods of inquiry devised in recent years, however, afford means for a comparison of the amounts of both matter and energy received and expended by the body, and from the results obtained in a large amount of such research, it seems probable that the law obtains in the living organism in general.

The first attempt at such demonstration was made by M. Rubner in 1894, experimenting with dogs doing no external muscular work. The income of energy (as heat) was computed, but the heat eliminated was measured. In the average of eight experiments continuing forty-five days, the two quantities agreed within 0.47%, thus demonstrating what it was desired to prove—that the heat given off by the body came solely from the oxidation of food within it. Results in accordance with these were reported by Studenski in 1897, and by Laulanie in 1898.

The most extensive and complete data yet available on the subject have been obtained by W. O. Atwater, F. G. Benedict and associates in experiments with men in the respiration calorimeter, in which a subject may remain for several consecutive days and nights. These experiments involve actual weighing and analyses of the food and drink, and of the gaseous, liquid and solid excretory products; determinations of potential energy (heat of oxidation) of the oxidizable material received and given off by the body (including estimation of the energy of the material gained or lost by the body); and measurements of the amounts of energy expended as heat and as external muscular work. By October 1906 eighty-eight experiments with fifteen different subjects had been completed. The separate experiments continued from two to thirteen days, making a total of over 270 days.

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 In some cases the subjects were at rest; in others they performed varying amounts of external muscular work on an apparatus by means of which the amount of work done was measured. In some cases they fasted, and in others they received diets generally not far from sufficient to maintain nitrogen, and usually carbon, equilibrium in the body. In these experiments the amount of energy expended by the body as heat and as external muscular work measured in terms of heat agreed on the average very closely with the amount of heat that would be produced by the oxidation of all the matter metabolized in the body. The variations for individual days, and in the average for individual experiments as well, were in some cases appreciable, amounting to as much as 6%, which is not strange in view of the uncertainties in physiological experimenting; but in the average of all the experiments the energy of the expenditure was above 99·9% of the energy of the income,—an agreement within one part in 1000. While these results do not absolutely prove the application of the law of the conservation of energy in the human body, they certainly approximate very closely to such demonstration.

—Percentage Composition of some Common Food Materials.

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 It is of course possible that energy may have given off from the body in other forms than heat and external muscular work. It is conceivable, for example, that intellectual activity may involve the transformation of physical energy, and that the energy involved may be eliminated in some form now unknown. But if the body did give off energy which was not measured in these experiments, the quantity must have been extremely small. It seems fair to infer from the results obtained that the metabolism of energy in the body occurred in conformity with the law of the conservation of energy.

3. Composition of Food Materials.—The composition of food is determined by chemical analyses, the results of which are conventionally expressed in terms of the nutritive ingredients previously described. As a result of an enormous amount of such investigation in recent years, the kinds and proportions of nutrients in our common sorts of food are well known. Average values for percentage composition of some ordinary food materials are shown in Table I. (Table I. also includes figures for fuel value.)

It will be observed that different kinds of food materials vary widely in their proportions of nutrients. In general the animal foods contain the most protein and fats, and vegetable foods are rich in carbohydrates. The chief nutrient of lean meat and fish is protein; but in medium fat meats the proportion of fat is as large as that of protein, and in the fatter meats it is larger. Cheese is rich in both protein and fat. Among the vegetable foods, dried beans and peas are especially rich in protein. The proportion in oatmeal is also fairly large, in wheat it is moderate, and in maize meal and rice it is rather small. Oats contain more oil than any of the common cereals, but in none of them is the proportion especially large. The most abundant nutrient in all the cereals is starch, which comprises from two-thirds to three-fourths or more of their total nutritive substance. Cotton-seed is rich in edible oil, and so are olives. Some of the nuts contain fairly large proportions of both protein and fat. The nutrient of potatoes is starch, present in fair proportion. Fruits contain considerable carbohydrates, chiefly sugar. Green vegetables are not of much account as sources of any of the nutrients or energy.

Similar food materials from different sources may also differ considerably in composition. This is especially true of meats. Thus, the leaner portions from a fat animal may contain nearly as much fat as the fatter portions from a lean animal. The data here presented are largely those for American food products, but the available analyses of English food materials indicate that the latter differ but little from the former in composition. The analyses of meats produced in Europe imply that they commonly contain somewhat less fat and more water, and often more protein, than American meats. The meats of English production compare with the American more than with the European meats. Similar vegetable foods from the different countries do not differ so much in composition.

4. Digestibility or Availability of Food Materials.—The value of any food material for nutriment depends not merely upon the kinds and amounts of nutrients it contains, but also upon the ease and convenience with which the nutrients may be digested, and especially upon the proportion of the nutrients that will be actually digested and absorbed. Thus, two foods may contain equal amounts of the same nutrient, but the one most easily digested will really be of most value to the body, because less effort is necessary to utilize it. Considerable study of this factor is being made, and much valuable information is accumulating, but it is of more especial importance in cases of disordered digestion.

The digestibility of food in the sense of thoroughness of digestion, however, is of particular importance in the present discussion. Only that portion of the food that is digested and absorbed is available to the body for the building of tissue and the production of energy. Not all the food eaten is thus actually digested; undigested material is excreted in the faeces. The thoroughness of digestion is determined experimentally by weighing and analysing the food eaten and the faeces pertaining to it. The difference between the corresponding ingredients of the two is commonly considered to represent the amounts of the ingredients digested. Expressed in percentages, these are called coefficients of digestibility. See Table II.

Such a method is not strictly accurate, because the faeces do not consist entirely of undigested food but contain in addition to this the so-called metabolic products, which include the residuum of digestive juices not resorbed, fragments of intestinal epithelium, &c. Since there is as yet no satisfactory method of separating these constituents of the excreta, the actual digestibility of the food is not determined. It has been suggested that since these materials must originally come from food, they represent, when expressed in terms of food ingredients, the cost of digestion; hence that the values determined as above explained represent the portion of food available to the body for the building of tissue and the yielding of energy, and what is commonly designated as digestibility should be called availability. Other writers retain the term “digestibility,” but express the results as “apparent digestibility,” until more knowledge regarding the metabolic products of the excreta is available and the actual digestibility may be ascertained.

Experimental inquiry of this nature has been very active in recent years, especially in Europe, the United States and Japan; and the results of considerably over 1000 digestion experiments with single foods or combinations of food materials are available. These were mostly with men, but some were with women and with children. The larger part of these have been taken into account in the following estimations of the digestibility of the nutrients in different classes of food materials. The figures here shown are subject to revision as experimental data accumulate. They are not to be taken as exact measures of the digestibility (or availability) of every kind of food in each given class, but they probably represent fairly well the average digestibility of the classes of food materials as ordinarily utilized in the mixed diet.

5. Fuel Value of Food.—The potential energy of food is commonly measured as the amount of heat evolved when the food is completely oxidized. In the laboratory this is determined by burning the food in oxygen in a calorimeter. The results, which are known as the heat of combustion of the food, are

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 expressed in calories, one calory being the amount of heat necessary to raise the temperature of one kilogram of water one degree centigrade. But it is to be observed that this unit is employed simply from convenience, and without implication as to what extent the energy of food is converted into heat in the body. The unit employed in the measurement of some other form of energy might be used instead, as, for example, the foot-ton, which represents the amount of energy necessary to raise one ton through one foot.

The amount of energy which a given quantity of food will produce on complete oxidation outside the body, however, is greater than that which the body will actually derive from it. In the first place, as previously shown, part of the food will not be digested and absorbed. In the second place, the nitrogenous compounds absorbed are not completely oxidized in the body, the residuum being excreted in the urine as urea and other bodies that are capable of further oxidation in the calorimeter. The total heat of combustion of the food eaten must therefore be diminished by the heat of combustion of the oxidizable material rejected by the body, to find what amount of energy is actually available to the organism for the production of work and heat. The amount thus determined is commonly known as the fuel value of food.

Rubner’s commonly quoted estimates for the fuel value of the nutrients of mixed diet are,—for protein and carbohydrates 4·1, and for fats 9·3 calories per gram. According to the method of deduction, however, these factors were more applicable to digested than to total nutrients. Atwater and associates have deduced, from data much more extensive than those available to Rubner, factors for total nutrients somewhat lower than these, as shown in Table III. These estimates seem to represent the best average factors at present available, but are subject to revision as knowledge is extended.

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 The heats of combustion of all the fats in an ordinary mixed diet would average about 9·40 calories per gram, but as only 95% of the fat would be available to the body, the fuel value per gram would be (9·40 × 0·95 =) 8·93 calories. Similarly, the average heat of combustion of carbohydrates of the diet would be about 4·15 calories per gram, and as 97% of the total quantity is available to the body, the fuel value per gram would be 4·03. (It is commonly assumed that the resorbed fats and carbohydrates are completely oxidized in the body.) The heats of combustion of all the kinds of protein in the diet would average about 5·65 calories per gram. Since about 92% of the total protein would be available to the body, the potential energy of the available protein would be equivalent to (5·65 × 0·92 =) 5·20 calories; but as the available protein is not completely oxidized allowance must be made for the potential energy of the incompletely oxidized residue. This is estimated as equivalent to 1·15 calories for the 0·92 gram of available protein; hence, the fuel value of the total protein is (5·20 − 1·15 =) 4·05 calories per gram. Nutrients of the same class, but from different food materials, vary both in digestibility and in heat of combustion, and hence in fuel value. These factors are therefore not so applicable to the nutrients of the separate articles in a diet as to those of the diet as a whole.

6. Food Consumption.—Much information regarding the food consumption of people in various circumstances in different parts of the world has accumulated during the past twenty years, as a result of studies of actual dietaries in England, Germany, Italy, Russia, Sweden and elsewhere in Europe, in Japan and other oriental countries, and especially in the United States. These studies commonly consist in ascertaining the kinds, amounts and composition of the different food materials consumed by a group of persons during a given period and the number of meals taken by each member of the group, and computing the quantities of the different nutrients in the food on the basis of one man for one day. When the members of the group are of different age, sex, occupation, &c., account must be taken of the effect of these factors on consumption in estimating the value “per man.” Men as a rule eat more than women under similar conditions, women more than children, and persons at active work more than those at sedentary occupation. The navvy, for example, who is constantly using up more nutritive material or body tissue to supply the energy required for his muscular work needs more protein and energy in his food than a bookkeeper who sits at his desk all day.

In making allowance for these differences, the various individuals are commonly compared with a man at moderately active muscular work, who is taken as unity. A man at hard muscular work is reckoned at 1·2 times such an individual; a man with light muscular work or a boy 15-16 years old, ·9; a man at sedentary occupation, woman at moderately active muscular work, boy 13-14 or girl 15-16 years old, ·8; woman at light work, boy 12 or girl 13-14 years old, ·7; boy 10-11 or girl 10-12 years old, ·6; child 6-9 years old, ·5; child 2-5 years old, ·4; child under 2 years, ·3. These factors are by no means absolute or final, but are based in part upon experimental data and in part upon arbitrary assumption.

The total number of dietary studies on record is very large, but not all of them are complete enough to furnish reliable data. Upwards of 1000 are sufficiently accurate to be included in statistical averages of food consumed by people in different circumstances, nearly half of which have been made in the United States in the past decade. The number of persons in the individual studies has ranged from one to several hundred. Some typical results are shown in Table IV.

7. Quantities of Nutrients needed.—For the proper nourishment of the body, the important problem is how much protein, fats and carbohydrates, or more simply, what amounts of protein and potential energy are needed under varying circumstances, to build and repair muscular and other tissues and to supply energy for muscular work, heat and other forms of energy. The answer to the problem is sought in the data obtained in dietary studies with considerable numbers of people, and in metabolism experiments with individuals in which the income and expenditure of the body are measured. From the information thus derived, different investigators have proposed so-called dietary standards, such as are shown in the table below, but unfortunately the experimental data are still insufficient for entirely trustworthy figures of this sort; hence the term “standard” as here used is misleading. The figures given are not to be considered as exact and final as that would suggest; they are merely tentative estimates of the average daily amounts of nutrients and energy required. (It is to be especially noted that these are available nutrients and fuel value rather than total nutrients and energy.) Some of the values proposed by other investigators are slightly larger than these, and others are decidedly smaller, but these are the ones that have hitherto been most commonly accepted in Europe and America.

8. Hygienic Economy of Food.—For people in good health, there are two important rules to be observed in the regulation of the diet. One is to choose the foods that “agree” with them, and to avoid those which they cannot digest and assimilate without harm; and the other is to use such sorts and quantities of foods as will supply the kinds and amounts of nutrients needed by the body and yet to avoid burdening it with superfluous material to be disposed of at the cost of health and strength.

As for the first-mentioned rule, it is practically impossible to give information that may be of more than general application. There are people who, because of some individual peculiarity, cannot use foods which for people in general are wholesome and nutritious. Some persons cannot endure milk, others suffer if they eat eggs, others have to eschew certain kinds of meat, or are made uncomfortable by fruit; but such cases are exceptions. Very little is known regarding the cause of these conditions. It is possible that in the metabolic processes to which the ingredients of the food are subjected in the body, or even during digestion before the substances are actually taken into the body, compounds may be formed that are in one way or another injurious. Whatever the cause may be, it is literally true in this sense that “what is one man’s meat is another man’s poison,” and each must learn for himself what foods “agree” with him and what ones do not. But for the great majority of people in health,

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 mentioned above. It should be observed, however, that these are generally more applicable to the proper feeding of a group or class of people as a whole than for particular individuals in this class. The needs of individuals will vary largely from the average in accordance with the activity and individuality. Moreover, it is neither necessary nor desirable for the individual to follow any standard exactly from day to day. It is requisite only that the average supply shall be sufficient to meet the demands of the body during a given period.

The cooking of food and other modes of preparing it for consumption have much to do with its nutritive value. Many materials which, owing to their mechanical condition or to some other cause, are not particularly desirable food materials in their natural state, are quite nutritious when cooked or otherwise prepared for consumption. It is also a matter of common experience that well-cooked food is wholesome and appetizing, whereas the same material poorly prepared is unpalatable. There are three chief purposes of cooking; the first is to change the mechanical condition of the food. Heating changes the structure of many food materials very materially, so that they may be more easily chewed and brought into a condition in which the digestive juices can act upon them more freely, and in this way probably influencing the ease and thoroughness of digestion. The second is to make the food more appetizing by improving the appearance or flavour or both. Food which is attractive to the eye and pleasing to the palate quickens the flow of saliva and other digestive juices and thus aids digestion. The third is to kill, by heat, disease germs, parasites or other dangerous organisms that may be contained in food. This is often a very important matter and applies to both animal and vegetable foods. Scrupulous neatness should always be observed in storing, handling and serving food. If ever cleanliness is desirable it must be in the things we eat, and every care should be taken to ensure it for the sake of health as well as of decency. Cleanliness in this connexion means not only absence of visible dirt, but freedom from undesirable bacteria and other minute organisms and from worms and other parasites. If food, raw or cooked, is kept in dirty places, peddled from dirty carts, prepared in dirty rooms and in dirty dishes, or exposed to foul air, disease germs and other offensive and dangerous substances may easily enter it.

9. Pecuniary Economy of Food.—Statistics of economy and of cost of living in Great Britain, Germany and the United States show that at least half, and commonly more, of the income of wage-earners and other people in moderate circumstances is expended for subsistence. The relatively large cost of food, and the important influence of diet upon health and strength, make a more widespread understanding of the subject of dietetics very desirable. The maxim that “the best is the cheapest” does not apply to food. The “best” food, in the sense of that which is the finest in appearance and flavour and which is sold at the highest price, is not generally the most economical.

The price of food is not regulated largely by its value for nutriment. Its agreeableness to the palate or to the buyer’s fancy is a large factor in determining the current demand and market price. There is no more nutriment in an ounce of protein or fat from the tender-loin of beef than from the round or shoulder. The protein of animal food has, however, some advantage over that of vegetable foods in that it is more thoroughly, and perhaps more easily, digested, for which reason it would be economical to pay somewhat more for the same quantity of nutritive material in the animal food. Furthermore, animal foods such as meats, fish and the like, gratify the palate as most vegetable foods do not. For persons in good health, foods in which the nutrients are the most expensive are like costly articles of adornment. People who can well afford them may be justified in buying them, but they are not economical. The most economical food is that which is at the same time most healthful and cheapest.

The variations in the cost of the actual nutriment in different food materials may be illustrated by comparison of the amounts of nutrients obtained for a given sum in the materials as bought at ordinary market prices. This is done in Table VI., which shows the amounts of available nutrients contained in the quantities of different food materials that may be purchased for one shilling at prices common in England.

When proper attention is given to the needs of the body for food and the relation between cost and nutritive value of food materials, it will be found that with care in the purchase and skill in the preparation of food, considerable control may be had over the expensiveness of a palatable, nutritious and healthful diet.

 DIETRICH, CHRISTIAN WILHELM ERNST (1712–1774), German painter, was born at Weimar, where he was brought up early to the profession of art by his father Johann George, then painter of miniatures to the court of the duke. Having been sent to Dresden to perfect himself under the care of Alexander Thiele, he had the good fortune to finish in two hours, at the age of eighteen, a picture which attracted the attention of the king of Saxony. Augustus II. was so pleased with Dietrich’s readiness of hand that he gave him means to study abroad, and visit in succession the chief cities of Italy and the Netherlands. There he learnt to copy and to imitate masters of the previous century with a versatility truly surprising. Winckelmann, to whom he had been recommended, did not hesitate to call him the Raphael of landscape. Yet in this branch of his practice he merely imitated Salvator Rosa and Everdingen. He was more successful in aping the style of Rembrandt, and numerous examples of this habit may be found in the galleries of St Petersburg, Vienna and Dresden. At Dresden, indeed, there are pictures acknowledged to be his, bearing the fictitious dates of 1636 and 1638, and the name of Rembrandt. Among Dietrich’s cleverest reproductions we may account that of Ostade’s manner in the “Itinerant Singers” at the National Gallery. His skill in catching the character of the later masters of Holland is shown in candlelight scenes, such as the “Squirrel and the Peep-Show” at St Petersburg, where we are easily reminded of Godfried Schalcken. Dietrich tried every branch of art except portraits, painting Italian and Dutch views alternately with Scripture scenes and still life. In 1741 he was appointed court painter to Augustus III. at Dresden, with an annual salary of 400 thalers (£60), conditional on the production of four cabinet pictures a year. This condition, no doubt, accounts for the presence of fifty-two of the master’s panels and canvases in one of the rooms at the Dresden museum. Dietrich, though popular and probably the busiest artist of his time, never produced anything of his own; and his imitations are necessarily inferior to the originals which he affected to copy. His best work is certainly that which he gave to engravings. A collection of these at the British Museum, produced on the general lines of earlier men, such as Ostade and Rembrandt, reveal both spirit and skill. Dietrich, after his return from the Peninsula, generally signed himself “Dietericij,” and with this signature most of his extant pictures are inscribed. He died at Dresden, after he had successively filled the important appointments of director of the school of painting at the Meissen porcelain factory and professor of the Dresden academy of arts.

 DIETRICH OF BERN, the name given in German popular poetry to Theodoric the Great. The legendary history of Dietrich differs so widely from the life of Theodoric that it has been suggested that the two were originally unconnected. Medieval

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The Treason of Secession. . . I Lecture on "Discoveries, Inventions, and Im- provements." Delivered before th^ Library Association of Springfield, Illinois. February , 1860 2 Slavery as the Fathers Viewed It. Address at Cooper Union, New "fork. February 27, 1860 14 Slavery the Enemy of the Free Workingmen. Abstract of Speech at Hartford, Connecticut. March 5, 1860 43 Slavery the Snake in the Union Bed. Speech at New Haven, Connecticut. March 5. 1860 50 Popular Sovereignty the Sugar-Coated Slavery Pill. Abstract of Speech at Norwich, Connecticut. March 9, 1860 76 Reply to the Committee Informing Him of His Nomination for President by the Chicago Con- vention. May 19, 1860 80 Acceptance of Nomination as President. May, 1860 80 [Platform of the Republican National Convention held in Chicago, May 16-18, 1860] . . 81 The Cause, Not the Man. Remarks at Springfield, Illinois. August 14, 1860 . . . .84 Charity towards Political Opponents. Remarks V


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 suitable combinations of the ordinary sorts of wholesome food materials make a healthful diet. On the other hand, some foods are of particular value at times, aside from their use for nourishment. Fruits and green vegetables often benefit people greatly, not as nutriment merely, for they may have very little actual nutritive material, but because of fruit or vegetable acids or other substances which they contain, and which sometimes serve a most useful purpose.

The proper observance of the second rule mentioned requires information regarding the demands of the body for food under different circumstances. To supply this information is one purpose of the effort to determine the so-called dietary standards

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text: Index:Australia an appeal.djvu

title: Index:Australia an appeal.djvu


text: 1911 Encyclopædia Britannica/Dietrich of Bern


text:
Mosley v. General Motors Corp.

Ross and Stephenson, Circuit Judges, and Van Pelt, Senior District Judge.

title: Mosley v. General Motors Corp.


text:
Mosley v. General Motors Corp./Opinion of the Court

[p1331] ROSS, Circuit Judge.

Nathaniel Mosley and nine other persons joined in bringing this action individually and as class representatives alleging that their rights guaranteed under 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981 were denied by General Motors and Local 25, United Automobile, Aerospace and Agriculture Implement Workers of America [Union] by reason of their color and race. Each of the ten named plaintiffs had, prior to the filing of the complaint, filed a charge with the Equal Employment Opportunity Commission [EEOC] asserting the facts underlying these claims. Pursuant thereto, the EEOC made a reasonable cause finding that General Motors, Fisher Body Division and Chevrolet Division, and the Union had engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964. Accordingly, the charging parties were notified by EEOC of their right to institute a civil action in the appropriate federal district court, pursuant to § 706(e) of Title VII, 42 U.S.C. § 2000e-5(e).

In each of the first eight counts of the twelve-count complaint, eight of the ten plaintiffs alleged that General Motors, Chevrolet Division, had engaged in unlawful employment practices by: "discriminating against Negroes as regards promotions, terms and conditions of employment"; "retaliating against Negro employees who protested actions made unlawful by Title VII of the Act and by discharging some because they protested said unlawful acts"; "failing to hire Negro employees as a class on the basis of race"; "failing to hire females as a class on the basis of sex"; "discharging Negro employees on the basis of race"; and "discriminating against Negroes and females in the granting of relief time." Each additionally charged that the defendant Union had engaged in unlawful employment practices "with respect to the granting of relief time to Negro and female employees" and "by failing to pursue 6a grievances." The remaining two plaintiffs made similar allegations against General Motors, Fisher Body Division. All of the individual plaintiffs requested injunctive relief, [p1332] back pay, attorneys fees and costs. Counts XI and XII of the complaint were class action counts against the two individual divisions of General Motors. They also sought declaratory and injunctive relief, back pay, attorneys fees and costs.

General Motors moved to strike portions of each count of the twelve-count complaint, to dismiss Counts XI and XII, to make portions of Counts I through XII more definite, to determine the propriety of Counts XI and XII as class actions, to limit the scope of the class purportedly represented, and to determine under which section of Rule 23 Counts XI and XII were maintainable as class actions. The district court ordered that "insofar as the first ten counts are concerned, those ten counts shall be severed into ten separate causes of action," and each plaintiff was directed to bring a separate action based upon his complaint, duly and separately filed. The court also ordered that the class action would not be dismissed, but rather would be left open "to each of the plaintiffs herein, individually or collectively . . . to allege a separate cause of action on behalf of any class of persons which such plaintiff or plaintiffs may separately or individually represent."

In reaching this conclusion on joinder, the district court followed the reasoning of Smith v. North American Rockwell Corp., 50 F.R.D. 515 (N.D. Okla. 1970), which, in a somewhat analogous situation, found there was no right to relief arising out of the same transaction, occurrence or series of transactions or occurrences, and that there was no question of law or fact common to all plaintiffs sufficient to sustain joinder under Federal Rule of Civil Procedure 20(a). Similarly, the district court here felt that the plaintiffs' joint actions against General Motors and the Union presented a variety of issues having little relationship to one another; that they had only one common problem, i.e. the defendant; and that as pleaded the joint actions were completely unmanageable. Upon entering the order, and upon application of the plaintiffs, the district court found that its decision involved a controlling question of law as to which there is a substantial ground for difference of opinion and that any of the parties might make application for appeal under 28 U.S.C. § 1292(b). We granted the application to permit this interlocutory appeal and for the following reasons we affirm in part and reverse in part.

Rule 20(a) of the Federal Rules of Civil Procedure provides:

"All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. . .." Additionally, Rule 20(b) and Rule 42(b) vest in the district court the discretion to order separate trials or make such other orders as will prevent delay or prejudice. In this manner, the scope of the civil action is made a matter for the discretion of the district court, and a determination on the question of joinder of parties will be reversed on appeal only upon a showing of abuse of that discretion. Chicago, R.I. & P.R.R. v. Williams, 245 F.2d 397, 404 (8th Cir.), cert. denied, 335 U.S. 855, 78 S.C.t. 83, 2 L. Ed. 2d 63 (1957). To determine whether the district court's order was proper herein, we must look to the policy and law that have developed around the operation of Rule 20.

The purpose of the rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. 7 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 1652 at 265 (1972). Single trials generally tend to lessen the delay, expense and inconvenience to all concerned. Reflecting this policy, the Supreme Court has said:

"Under the Rules, the impulse is toward entertaining the broadest possible [p1333] scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged."

United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 16 L. Ed. 2d 218, 86 S.C.t. 1130 (1966).

Permissive joinder is not, however, applicable in all cases. The rule imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences; and (2) some question of law or fact common to all the parties must arise in the action.

In ascertaining whether a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20, a case by case approach is generally pursued. 7 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 1653 at 270 (1972). No hard and fast rules have been established under the rule. However, construction of the terms "transaction or occurrence" as used in the context of Rule 13(a) counterclaims offers some guide to the application of this test. For the purposes of the latter rule,

"'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship."

Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 70 L. Ed. 750, 46 S.C.t. 367 (1926). Accordingly, all "logically related" events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. 7 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 1653 at 270 (1972). The analogous interpretation of the terms as used in Rule 20 would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary.

This construction accords with the result reached in United States v. Mississippi, 380 U.S. 128, 13 L. Ed. 2d 717, 85 S.C.t. 808 (1965), a suit brought by the United States against the State of Mississippi, the election commissioners, and six voting registrars of the State, charging them with engaging in acts and practices hampering and destroying the right of Negro citizens of Mississippi to vote. The district court concluded that the complaint improperly attempted to hold the six county registrars jointly liable for what amounted to nothing more than individual torts committed by them separately against separate applicants. In reversing, the Supreme Court said:

"But the complaint charged that the registrars had acted and were continuing to act as part of a state wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote solely because of their color. On such an allegation the joinder of all the registrars as defendants in a single suit is authorized by Rule 20(a) of the Federal Rules of Civil Procedure . . . . These registrars were alleged to be carrying on activities which were part of a series of transactions or occurrences the validity of which depended to a large extent upon 'questions of law or fact common to all of them'"

Id. at 142-43.

Here too, then, the plaintiffs have asserted a right to relief arising out of the same transactions or occurrences. Each of the ten plaintiffs alleged that he had been injured by the same general policy of discrimination on the part of General Motors and the Union. Since a "state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote" was determined to arise out of the same series of transactions or occurrences, we [p1334]  conclude that a company-wide policy purportedly designed to discriminate against Negroes in employment similarly arises out of the same series of transactions or occurrences. Thus the plaintiffs meet the first requisite for joinder under Rule 20(a).

The second requisite necessary to sustain a permissive joinder under the rule is that a question of law or fact common to all the parties will arise in the action. The rule does not require that all questions of law and fact raised by the dispute be common. Yet, neither does it establish any qualitative or quantitative test of commonality. For this reason, cases construing the parallel requirement under Federal Rule of Civil Procedure 23(a) provide a helpful framework for construction of the commonality required by Rule 20. In general, those cases that have focused on Rule 23(a) (2) have given it a permissive application so that common questions have been found to exist in a wide range of context. 7 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 1763 at 604 (1972). Specifically, with respect to employment discrimination cases under Title VII, courts have found that the discriminatory character of a defendant's conduct is basic to the class, and the fact that the individual class members may have suffered different effects from the alleged discrimination is immaterial for the purposes of the prerequisite. Hicks v. Crown Zellerbach Corp., 49 F.R.D. 184, 187-88 (E.D. La. 1968). See also Washington v. Lee, 263 F. Supp. 327, 330 (M.D. Ala. 1966), aff'd per curiam, 390 U.S. 333, 88 S.C.t. 994, 19 L. Ed. 2d 1212 (1968); Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971), cert. denied, 405 U.S. 1045, 31 L. Ed. 2d 588, 92 S.C.t. 1309 (1972). In this vein, one court has said:

"Although the actual effects of a discriminatory policy may thus vary throughout the class, the existence of the discriminatory policy threatens the entire class. And whether the Damoclean threat of a racially discriminatory policy hangs over the racial class is a question of fact common to all the members of the class."

Hall v. Werthan Bag Corp., 251 F. Supp. 184, 186 (M.D. Tenn. 1966). See also Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969); Mack v. General Electric Co., 329 F. Supp. 72, 75-76 (E.D. Pa. 1971); Bennett v. Gravelle, 323 F. Supp. 203, 219 (D. Md.), aff'd, 451 F.2d 1011 (4th Cir. 1971), cert. denied, 407 U.S. 917, 32 L. Ed. 2d 692, 92 S.C.t. 2451 (1972).

The right to relief here depends on the ability to demonstrate that each of the plaintiffs was wronged by racially discriminatory policies on the part of the defendants General Motors and the Union. The discriminatory character of the defendants' conduct is thus basic to each plaintiff's recovery. The fact that each plaintiff may have suffered different effects from the alleged discrimination is immaterial for the purposes of determining the common question of law or fact. Thus, we conclude that the second requisite for joinder under Rule 20(a) is also met by the complaint.

For the reasons set forth above, we conclude that the district court abused its discretion in severing the joined actions. The difficulties in ultimately adjudicating damages to the various plaintiffs are not so overwhelming as to require such severance. If appropriate, separate trials may be granted as to any particular issue after the determination of common questions.

The judgment of the district court disallowing joinder of the plaintiffs' individual actions is reversed and remanded with directions to permit the plaintiffs to proceed jointly. That portion of the district court's judgment that withholds determination of the propriety of the purported class until further discovery is affirmed. We consider the application of the appellants for attorneys fees on this appeal to be premature, and they will be denied without prejudice to their right to reassert that claim upon final disposition of the case.


text: Talk:Mosley v. General Motors Corp.

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Rh the compassion of others for Australia; and thus many will be induced to follow Your Majesty's example, by interesting themselves in the salvation of the heathen—a charity of a higher and a holier character, than any that are to be found in the catalogue of Christian duties, or within the range of Christian benevolence.

The unprecedented nature of the request, will perhaps excite a smile. Its singularity is occasioned by an unwillingness to touch any of the funds which those whom you consult may consider indispensable to other objects, But what is there of excellence in the sublunary scenes of the life which man leads in this terrestrial abode that is not singular. The disposition, the life, and the actions of the Saviour of men, as well as those of his apostles, were distinguished by a heaven-born singularity. Nor should it excite our surprise. The common walks of life are all crowded with worldly pursuits and worldly interests, which tend alike to harden the heart, to darken the understanding, and to exclude heavenly things from our consideration, or to clothe them in an earthly garb, and degrade them with worldly associations. Hence, the treading of an unbeaten path, by the followers of the Redeemer in their efforts to save mankind, is as indicative of wisdom and good taste as it is of self-denial. It is impossible for them to act otherwise. In a world abounding with iniquity, singularity has therefore been, and ever will be, the characteristic of the religion of Jesus.

Singular, however, as the means which delicacy prompts for the attainment of an end so great and important, my suit itself is not without an example worthy of Your Majesty's imitation. Between the scene that occurred in the palace of Susan and that now acting in the British cabinet, there are coincidences and contrasts which are deeply interesting. True, I stand not in the same relation to the Queen of England as that of the distinguished Israelite to the Queen of the Persian empire. In this respect the suit of Mordecai and mine differ. Mine! did I say? Not mine, but that of the Redeemer of men. What though I be unrelated and unknown to Your Majesty? "The wind bloweth where it listeth, and thou hearest the sound thereof;" yet it is not necessary—nor would it answer any end—to know "whence it cometh or whither it goeth." Such sometimes is the bearer of divine communications to a fallen world. I am merely the voice—the message is from heaven. There are in Your Majesty s dominions a people devoted to destruction by the colonizing enactments of your legislature and the avarice of your subjects, as certainly as if an edict had issued from the throne for their extermination. This is an affecting coincidence. The contrast, however, between your Rh

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text: Talk:The Confessions of Jean Jacques Rousseau (Aldus)


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OW glad you must be to lie at rest,

Forgetful of him whom you loved so,

Of him who loved you not:

To leave all the watching and waiting,

The hoping and doubting, behind you—

To know no more of the longing

That burned like a fire at your heart!

How glad you must be to lose yourself—

Utterly, utterly, Sappho,

In sleep that is sleep indeed!—

To turn from the pain and the passion,

The dreams of delight that, on waking,

But mocked you and left you more lonely—

The visions that ever betrayed!

How glad, after all—oh, how glad to forget

The golden one, dread Aphrodite!—

The laughter deceitful and sweet

Wherewith from her own glowing bosom

She gave the red rose that consumed you,


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Rh Whose fire only floods all-embracing

Could cool, as they rocked you in sleep!

Hereafter for others her emblem shall bloom:

For others shall be the delusion,

The torturing doubt, the despair;

But you, cradled deep mid the waters,

Naught heeding of ebb-tide or flowing,

Your heart pulsing not with their pulsing,—

You, Sappho, untroubled shall rest.


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164 this proposition and its labyrinthine consequences? Does he know from experience the Minotauros of this den.—I doubt it—nay, I know otherwise. Nothing is more really alien to these "monofanatics," these so-called "free spirits," than freedom and unfettering in that sense; in no respect are they more closely tied, the absolute fanaticism of their belief in truth is unparalleled. I know all this perhaps too much from experience at close quarters—that dignified philosophic abstinence to which a belief like that binds its adherents, that stoicism of the intellect, which eventually vetoes negation as rigidly as it does affirmation, that wish for standing still in front of the actual, the factum brutum, that fatalism in "petits faits" (ce petit faitalism, as I call it), in which French Science now attempts a kind of moral superiority over German, this renunciation of interpretation generally (that is, of forcing, doctoring, abridging, omitting, suppressing, inventing, falsifying, and all the other essential attributes of interpretation)—all this, considered broadly, expresses the asceticism of virtue, quite as efficiently as does any repudiation of the senses (it is at bottom only a modus of that repudiation). But what forces it into that unqualified will for truth is the faith in the ascetic ideal itself, even though it take the form of its unconscious imperatives,—make no mistake about it, it is the faith, I repeat, in a metaphysical value, an intrinsic value of truth, of a character which only warranted and guaranteed in this ideal (it stands and falls with that ideal). Judged strictly, there does not exist a science without its "hypotheses," the thought of such a science is inconceivable, illogical: a philosophy, a faith, must always exist first to enable science to gain

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text: Poems (Coates 1916)/Volume I/To Sappho Dead


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Rh thereby a direction, a meaning, a limit and method, a right to existence. (He who holds a contrary opinion on the subject—he, for example, who takes it upon himself to establish philosophy "upon a strictly scientific basis"—has first got to "turn upside-down" not only philosophy but also truth itself—the gravest insult which could possibly be offered to two such respectable females!) Yes, there is no doubt about it—and here I quote my Joyful Wisdom, cp. Book V. Aph. 344: "The man who is truthful in that daring and extreme fashion, which is the presupposition of the faith in science, asserts thereby a different world from that of life, nature, and history; and in so far as he asserts the existence of that different world, come, must he not similarly repudiate its counterpart, this world, our world? The belief on which our faith in science is based has remained to this day a metaphysical belief—even we knowers of to-day, we godless foes of metaphysics, we, too, take our fire from that conflagration which was kindled by a thousand-year-old faith, from that Christian belief, which was also Plato's belief, the belief that God is truth, that truth is divine. . . . But what if this belief becomes more and more incredible, what if nothing proves itself to be divine, unless it be error, blindness, lies—what if God Himself proved Himself to be our oldest lie?"—It is necessary to stop at this point and to consider the situation carefully. Science itself now needs a justification (which is not for a minute to say that there is such a justification). Turn in this context to the most ancient and the most modern philosophers: they all fail to realise the extent of the need of a justification on the part of the Will for Truth—here is a gap in every philosophy—what

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166 is it caused by? Because up to the present the ascetic ideal dominated all philosophy, because Truth was fixed as Being, as God, as the Supreme Court of Appeal, because Truth was not allowed to be a problem. Do you understand this "allowed"? From the minute that the belief in the God of the ascetic ideal is repudiated, there exists a new problem: the problem of the value of truth. The Will for Truth needed a critique—let us define by these words our own task—the value of truth is tentatively to be called in question. . . . (If this seems too laconically expressed, I recommend the reader to peruse again that passage from the Joyful Wisdom which bears the title, "How far we also are still pious," Aph. 344, and best of all the whole fifth book of that work, as well as the Preface to The Dawn of Day.

25.

No! You can't get round me with science, when I search for the natural antagonists of the ascetic ideal, when I put the question: "Where is the opposed will in which the opponent ideal expresses itself?" Science is not, by a long way, independent enough to fulfil this function; in every department science needs an ideal value, a power which creates values, and in whose service it can believe in itself—science itself never creates values. Its relation to the ascetic ideal is not in itself antagonistic: speaking roughly, it rather represents the progressive force in the inner evolution of that ideal. Tested more exactly, its opposition and antagonism are concerned not with the ideal itself, but only with that ideal's outworks, its outer

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 chroniclers, however, repeatedly asserted the identity of Dietrich and Theodoric, although the more critical noted the anachronisms involved in making Ermanaric (d. 376) and Attila (d. 453) contemporary with Theodoric (b. 455). That the legend is based on vague historical reminiscences is proved by the retention of the names of Theodoric (Thiuda-reiks, Dietrich) and his father Theudemir (Dietmar), by Dietrich’s connexion with Bern (Verona) and Raben (Ravenna). Something of the Gothic king’s character descended to Dietrich, familiarly called the Berner, the favourite of German medieval saga heroes, although his story did not leave the same mark on later German literature as did that of the Nibelungs. The cycle of songs connected with his name in South Germany is partially preserved in the (q.v.) in Dietrich’s Flucht, the Rabenschlacht and Alpharts Tod; but it was reserved for an Icelandic author, writing in Norway in the 13th century, to compile, with many romantic additions, a consecutive account of Dietrich. In this Norse prose redaction, known as the Vilkina Saga, or more correctly the Thidrekssaga, is incorporated much extraneous matter from the Nibelungen and Wayland legends, in fact practically the whole of south German heroic tradition.

There are traces of a form of the Dietrich legend in which he was represented as starting out from Byzantium, in accordance with historical tradition, for his conquest of Italy. But this early disappeared, and was superseded by the existing legend, in which, perhaps by an “epic fusion” with his father Theudemir, he was associated with Attila, and then by an easy transition with Ermanaric. Dietrich was driven from his kingdom of Bern by his uncle Ermanaric. After years of exile at the court of Attila he returned with a Hunnish army to Italy, and defeated Ermanaric in the Rabenschlacht, or battle of Ravenna. Attila’s two sons, with Dietrich’s brother, fell in the fight, and Dietrich returned to Attila’s court to answer for the death of the young princes. This very improbable renunciation of the advantages of his victory suggests that in the original version of the story the Rabenschlacht was a defeat. In the poem of Ermenrichs Tod he is represented as slaying Ermanaric, as in fact Theodoric slew Odoacer. “Otacher” replaces Ermanaric as his adversary in the Hildebrandslied, which relates how thirty years after the earlier attempt he reconquered his Lombard kingdom. Dietrich’s long residence at Attila’s court represents the youth and early manhood of Theodoric spent at the imperial court and fighting in the Balkan peninsula, and, in accordance with epic custom, the period of exile was adorned with war-like exploits, with fights with dragons and giants, most of which had no essential connexion with the cycle. The romantic poems of König Laurin, Sigenot, Eckenlied and Virginal are based largely on local traditions originally independent of Dietrich. The court of Attila (Etzel) was a ready bridge to the Nibelungen legend. In the final catastrophe he was at length compelled, after steadily holding aloof from the combat, to avenge the slaughter of his Amelungs by the Burgundians, and delivered Hagen bound into the hands of Kriemhild. The flame breath which anger induced from him shows the influence of pure myth, but the tales of his demonic origin and of his being carried off by the devil in the shape of a black horse may safely be put down to the clerical hostility to Theodoric’s Arianism.

Generally speaking, Dietrich of Bern was the wise and just monarch as opposed to Ermanaric, the typical tyrant of Germanic legend. He was invariably represented as slow of provocation and a friend of peace, but once roused to battle not even Siegfried could withstand his onslaught. But probably Dietrich’s fight with Siegfried in Kriemhild’s rose garden at Worms is a late addition to the Rosengarten myth. The chief heroes of the Dietrich cycle are his tutor and companion in arms, Hildebrand (see ), with his nephews the Wolfings Alphart and Wolfhart; Wittich, who renounced his allegiance to Dietrich and slew the sons of Attila; Heime and Biterolf.

 DIEZ, FRIEDRICH CHRISTIAN (1794–1876), German philologist, was born at Giessen, in Hesse-Darmstadt, on the 15th of March 1794. He was educated first at the gymnasium and then at the university of his native town. There he studied classics under Friedrich Gottlieb Welcker (1784–1868) who had just returned from a two years’ residence in Italy to fill the chair of archaeology and Greek literature. It was Welcker who kindled in him a love of Italian poetry, and thus gave the first bent to his genius. In 1813 he joined the Hesse corps as a volunteer and served in the French campaign. Next year he returned to his books, and this short taste of military service was the only break in a long and uneventful life of literary labours. By his parents’ desire he applied himself for a short time to law, but a visit to Goethe in 1818 gave a new direction to his studies, and determined his future career. Goethe had been reading Raynouard’s Selections from the Romance Poets, and advised the young scholar to explore the rich mine of Provençal literature which the French savant had opened up. This advice was eagerly followed, and henceforth Diez devoted himself to Romance literature. He thus became the founder of Romance philology. After supporting himself for some years by private teaching, he removed in 1822 to Bonn, where he held the position of privatdocent. In 1823 he published his first work, An Introduction to Romance Poetry; in the following year appeared The Poetry of the Troubadours, and in 1829 The Lives and Works of the Troubadours. In 1830 he was called to the chair of modern literature. The rest of his life was mainly occupied with the composition of the two great works on which his fame rests, the Grammar of the Romance Languages (1836–1844), and the Lexicon of the Romance Languages—Italian, Spanish and French (1853); in these two works Diez did for the Romance group of languages what Jacob Grimm did for the Teutonic family. He died at Bonn on the 29th of May 1876.

The earliest French philologists, such as Perion and Henri Estienne, had sought to discover the origin of French in Greek and even in Hebrew. For more than a century Ménage’s Etymological Dictionary held the field without a rival. Considering the time at which it was written (1650), it was a meritorious work, but philology was then in the empirical stage, and many of Ménage’s derivations (such as that of “rat” from the Latin “mus,” or of “haricot” from “faba”) have since become bywords among philologists. A great advance was made by Raynouard, who by his critical editions of the works of the Troubadours, published in the first years of the 19th century, laid the foundations on which Diez afterwards built. The difference between Diez’s method and that of his predecessors is well stated by him in the preface to his dictionary. In sum it is the difference between science and guess-work. The scientific method is to follow implicitly the discovered principles and rules of phonology, and not to swerve a foot’s breadth from them unless plain, actual exceptions shall justify it; to follow the genius of the language, and by cross-questioning to elicit its secrets; to gauge each letter and estimate the value which attaches to it in each position; and lastly to possess the true philosophic spirit which is prepared to welcome any new fact, though it may modify or upset the most cherished theory. Such is the historical method which Diez pursues in his grammar and dictionary. To collect and arrange facts is, as he tells us, the sole secret of his success, and he adds in other words the famous apophthegm of Newton, “hypotheses non fingo.” The introduction to the grammar consists of two parts:—the first discusses the Latin, Greek and Teutonic elements common to the Romance languages; the second treats of the six dialects separately, their origin and the elements peculiar to each. The grammar itself is divided into four books, on phonology, on flexion, on the formation of words by composition and derivation, and on syntax.

His dictionary is divided into two parts. The first contains words common to two at least of the three principal groups of Romance:—Italian, Spanish and Portuguese, and Provençal and French. The Italian, as nearest the original, is placed at the head of each article.

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