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V.] if we must follow back the fates of our race until they centre in a limited number of families or in a single pair, which expanded by natural increase, and scattered, forming the little communities which later fused together into greater ones—and who will deny that it was so?—then, also, both by analogy and by historical necessity, it follows that that is the true view of the relation of dialects and language to which we have been led above: namely, that growth and divarication of dialects accompany the spread and disconnection of communities, and that assimilation of dialects accompanies the coalescence of communities.

Prevalence of the same tongue over wide regions of the earth's surface was, indeed, impossible in the olden time, and human speech is now, upon the whole, tending toward a condition of less diversity with every century; but this is only owing to the vastly increased efficiency at present of those external influences which counteract the inherent tendency of language to diversify. As, here in America, a single cultivated nation, of homogeneous speech, is taking the place of a congeries of wild tribes, with their host of discordant tongues, so, on a smaller scale, is it everywhere else: civilization and the conditions it makes are gaining upon barbarism and its isolating influences. In the fact that Frenchmen, Spaniards, and Italians, on entering our community, all learn alike to say with us verity, there is nothing which at all goes to prove that verity, vérité, verdad, and verità are primitive dialectic varieties, tending toward unity; nor, in the extended sway of the cultivated tongues of more modern periods, is there aught which in the most distant manner favours the theory that dialects are antecedent to uniform speech, and that the latter everywhere grows out of the former.

It is true, again, that a certain degree of dialectic variety is inseparable from the being of any language, at any stage of its history. We have seen that even among ourselves, where uniformity of speech prevails certainly not less than elsewhere in the world, no two individuals speak absolutely the same tongue, or would propagate absolutely the same, if circumstances should make them the founders of independent linguistic traditions. However small, then, may have been


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182 the community which laid the basis of any actually existing language or family of languages, we must admit the existence of some differences between the idioms of its individual members, or families. And if we suppose such a community to be dispersed into the smallest possible fragments, and each fragment to become the progenitor of a separate community, it might be said with a kind of truth that the languages of these later communities began their history with dialectic differences already developed. The more widely extended, too, the original community before its dispersion, and the more marked the local differences, not inconsistent with mutual intelligibility, existing in its speech, the more capital, so to speak, would each portion have, on which to commence its farther accumulation of dialectic variations. But these original dialectic differences would themselves be the result of previous growth, and they would be of quite insignificant amount, as having been able to consist at the outset with unity of speech; they might be undistinguishable even by the closest analysis among the peculiarities of idiom which should have arisen later; and it would be the grossest error to maintain either that these last were original and primitive, or that they grew out of and were caused by the first slight varieties: we should rather say, with entire truth, that the later dialects had grown by gradual divergence out of a single homogeneous language.

In an uncultured community, the value of such minor discordances of usage as may exist, and do always exist, among those who yet, as being able to communicate freely with one another, are to be regarded as speaking the same tongue, is at its maximum. The first effect of the cultivation of a language, as we style it, is to wipe out this class of differences, extending the area and perfecting the degree of linguistic uniformity. And its work is accomplished, first as last, whether the scale of variation over which its influence bears sway be less or greater, by selection, not by fusion. The varying usages of different individuals and localities are not averaged, but the usages of one part of the community are set up as a norm, to which those of the rest shall be conformed, and from which farther variation shall be


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Barnard v. Adams/Dissent Daniel

Mr. Justice DANIEL dissenting.

The decision just pronounced, so far as it goes, must of course be regarded as settling the law of this court upon the subject of general average, that decision being in complete accordance with the decision of The Columbian Assurance Co. v. Ashby and Stribling, 4 Peters, 139; the single case from this court previously maintaining the doctrine announced by the court in the case before us. But, however the decision now made may control the question of general average in the courts of the United States, as it must do, being the revised and reaffirmed doctrine of this tribunal, still, with the sincerest respect entertained for the opinions of my brethren, and with unaffected diffidence as to the conclusions of my own mind, I have been unable to vield to this doctrine my assent. I cannot but regard the doctrine here affirmed as opposed to the course of opinion (the settled and undisputed opinion) in the greatest maritime and commercial nation in the world, and as subversive of the fundamental principle in which the law of average has its origin. That principle, which is traced by all writers and courts to the Rhodian law, is thus propounded by Lord Tenterden, in his work on Shipping (p. 342): 'Namely, the general contribution that is to be made by all parties towards a loss sustained by some for the benefit of all.' The same writer (p. 344) says that goods must be thrown overboard; the mind and agency of man must be employed. If the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. The goods must be thrown overboard for the sake of all. The same writer remarks (p. 348), that, though the rule mentions goods only, its principle extends also to the ship and its furniture.

Mr. Benecke, in his Treatise on Average (p. 96), tells us that general average has been described in the English courts to comprise 'all loss which arises in consequence of extraordinary sacrifices or expenses incurred for the preservation of the ship and cargo.' After speaking of the enumeration of instances of general average in some of the Continental nations of Europe, he continues: 'Although these laws and the corresponding ones of other states do not make use of the term sacrifice, yet their definitions imply that nothing short of a sacrifice shall be deemed a general average. All these laws may therefore be said to establish the same general principle; namely, that a sacrifice made for the preservation of the ship and cargo is general average.' Again he says (p. 97): 'As to the term sacrifice, it is clear and generally admitted, that a damage, to deserve the appellation of a sacrifice, must have been purposely undergone, and by the agency of man, for the benefit of the whole, and that every damage not purposely undergone, although the ship and cargo may be benefited by it, gives no claim to restitution.' Again, it is said with great force and propriety, that the special sacrifice must be something done and not suffered; there must be the will and agency of the party making it. That it should be for the purpose, and with the intent, causa et mente, of the preservation of the common concern. Although the examples of this sacrifice put are usually instances of jactus, the principle embraced applies equally to the ship as to the cargo; thus Benecke (p. 144) says: 'The case of voluntary stranding being implied in the general rules, most of the foreign ordinances omit to mention it expressly. The Prussian law is in this respect more explicit than the others. If the captain, say sections 1820 and 1821, in order to preserve the cargo, run the vessel intentionally ashore, the damage thereby occasioned to the ship and cargo as well as all incidental charges, belong to the general average. But if it appear clearly from the circumstances, that the stranding was resorted to merely for the purpose of saving the lives or liberty of the crew, the damage, even if the whole cargo be saved, is held to be particular average. The ancient laws, says Benecke, as well as the opinions of the English and foreign lawyers, are also in favor of this distinction. And it is, as far as I have been able to learn, the practice of all countries.' The same will, the same positive action, the same purpose, and, it may be added, the same predicament or position of the actors, must exist in each class of cases. There must be intent and act, prompted by, and tending to, a practicable, or at least a probable result, and not mere endurance or submission to uncontrollable necessity in either case.

Thus, says Benecke, 'when a vessel is purposely run ashore (p. 143), and afterwards got off with damage; the question whether repairs of such damage belong to general or particular average depends entirely upon the circumstances of the case. If the situation of the vessel were such as to admit of no alternative; so that, without running her ashore she would have been unavoidably lost, and that measure were resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing, in fact, was sacrificed. But if the vessel and cargo were in a perilous, but not a desperate situation, and the measure of running her ashore deliberately adopted, as best calculated to save the ship and cargo; in that case the damage sustained, according to the fundamental rules, constitutes a claim for restitution.' And Mr. Phillips, in his work on Insurance (Vol. I., p. 338), and in a note to Stevens on Average (p. 81), lays down the law, both in England and in the United States, to be this: that 'the voluntary stranding of the ship is general average; but not the mere steering her to a less dangerous place for stranding, when she is inevitably drifting to the shore.' I am wholly unable to perceive how, in conformity with the rules and principles above cited as constituting the foundation of general average, contribution could justly be claimed in this instance for the loss of the ship. For there is not a scintilla of proof in this cause tending to show a design to sacrifice the ship, or anything else, nor tending to prove that the course pursued was one which, under any circumstances, could possibly have been avoided. On the contrary, the testimony establishes, as far as it is possible to establish any facts, that the stranding was the effect of the vis major, of an inevitable necessity,-that every effort was made to avoid this necessity, and that the only act of the mind apparent in the case was the determination, to repeat the language of Mr. Phillips, already quoted, 'merely to steer her to a less dangerous place for stranding, when she was inevitably drifting to the shore;'-a determination not less for the benefit of the ship than for that of the cargo, and one falling within the general scope of the duty and discretion of every master or seaman.

There is no contrariety in the testimony in this case. The single witness, the mate, who was examined, states most explicitly the hopeless and desperate condition of the vessel;-she had lost all her anchors, was in the midst of a hurricane, and drifting to the shore under a force which the witness explicitly says nothing could resist. He therefore did not elect to run her ashore, or to make her a sacrifice for the general good; he only sought to save her as far as possible from danger or injury. It appears to me to be no slight paradox to assert, that a man is the positive and controlling agent in the accomplishment of an effect which he merely suffers, and which is forced upon him by a power that he is wholly unable to resist or influence, and that it is equally paradoxical to declare, that we elect and seek a sacrifice or a peril from which we are most anxiously fleeing. The cases at nisi prius in the federal courts, and in the courts of the states referred to, leave this matter pretty much in equipoise, if indeed they do not incline to the side of the question here maintained. We have Story and Washington and Tilghman opposed to Kent and Gibson and Kennedy; with this consideration attending the decisions of the Supreme Court of Pennsylvania, that they are the most recent, and have been made upon an examination and review of the cases which they have overruled. Repeating the assurance of entire deference entertained for the opinion of my brethren, and of the sincerest diffidence of the conclusions of my own mind, yet being unable to concur in those opinions, I have no claim to share in their merits if they are right, and if they are incorrect, my position with respect to them should be equally understood.

title: Barnard v. Adams/Dissent Daniel


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Henderson v. Tennessee/Dissent Woodbury

Mr. Justice WOODBURY dissented from the opinion delivered by the court.

My view of the present case is, that this tribunal has jurisdiction over it, and, also, that the judgment below ought to be reversed.

In order to enable us to exercise jurisidiction in this class of causes, it need only appear, that in the state court some right or title set up under treaty with the United States was drawn in question and overruled. The title set up below by the defendants seems very clearly to have been one of this character. The record states that 'it was proved by sundry witnesses that Andrew Miller was the head of an Indian family; resided in the Cherokee nation east of the Mississippi at the date of the treaty of 1817, between the United States and the Cherokee nation; that from the spring of 1818 till his death in July or August of the same year, he resided on the land in dispute, claiming the same as a reservation, where he said he intended to live and die; and that the land in dispute was not ceded by the treaty of 1817, but was by that of 1819.' Now, on such facts it is averred and admitted that the court instructed the jury, 'that although the ancestor, Andrew Miller, registered his name for the place in dispute, and took possession thereof in the spring of 1818, and died upon the place in July or August of the same year, and before the treaty of 1819, no title vested in him, Andrew Miller, and consequently none could vest or descend to his heirs.'

It is difficult to conceive how it is possible to say, that a title under a treaty was not thus set up or drawn in question, and was not overruled by the state court, so as to give to this court jurisdiction to revise any error committed. Such a title seems to have been the only one interposed against a recovery, and was the only one decided on below, and was there explicitly overruled.

The sole argument offered here to obviate this conclusion does not appear to have been there presented or relied on. It is, that, though Miller's title was there set up and overruled, it was not set up as existing in the tenants, or as the title under which they entered or claimed.

But the Judiciary Act, in order to give to this court jurisdiction under the twenty-fifth section, does not in terms require that such title should have been entirely vested in the tenants. It seems sufficient if it was drawn in question, or was set up, and could legally be set up, in defence, and was overruled. (1 Stat. at L., 85.)

What is drawn in question in any case depends on the facts and the law applicable to that particular case. Here the title of Miller's heirs under the treaty, I have already shown, was certainly drawn in question, and as certainly was overruled by the judge.

But it is argued, that the defendant must have had a right under the United States to make the defence, or we have no jurisdiction. That, however, is begging the question on the merits. It seems quite sufficient to have him set up such a right and to have it overruled.

Here, too, the court below seemed to concede, that Henderson possessed such a right under Miller's heirs; but decided against him, on the ground that the right of Miller himself was defective.

Again, the question of right is not the guide, but the question of claim, and the claim being overruled. Nor need the claim be to the whole estate or interest. I such an action as this, the persons in possession may have, in themselves, no title in fee, nor for life, nor even for years. It is sufficient if a mere tenancy at will, for or in behalf of those possessing a larger estate, is claimed.

So it may be only a naked possession, if the legal estate is shown to be in other persons than the plaintiff, the latter not being authorized to disturb the possession of the tenant, unless he has the legal estate. 4 Burr., 2484; 9 Wheat., 515; Greenleaf's Lessee v. Birth, 6 Pet., 302.

Here, however, the defendants appear to have gone further, and to have made a claim in privity with the heirs, or set up a right under Miller and the treaty, though not to the whole interest. In a just view of the record, therefore, they seem to have brought themselves within what is now required, even by the opinion of this court. Because, though the original defendants claimed no title in themselves, unless it was a tenancy at will under Henderson and Calloway, and hence, probably, the latter were requested to defend, and did defend, yet it clearly appears on the record, that the latter set up rights for the heirs of Miller, and relied in defence on the title of those heirs, and the court did not overrule the propriety of such a mode of defence, but the title itself of Miller's heirs set up under the Cherokee treaties.

The title under the treaty was not only thus set up and overruled, but it was set up by Henderson and Calloway, claiming rights under it in privity under the heirs of Miller.

The widow of Miller, as early as 1818, is proved to have put Black in actual possession of the land, 'to hold it for her and the heirs of Andrew Miller.' And he, with two of the children, remained in possession and cultivated the land till 1822. No question can exist, that, if Black was the defendant here, he could rightfully protect himself under the Miller title. But it is said that Henderson and Calloway were never, like him, put into possession by the widow or the heirs, and never held it for them with any privity by lease or otherwise. We think differently. Another portion of the record says expressly, after Black had been expelled by the plaintiffs, and the plaintiffs by others, between 1822 and 1837 or 1838, that 'Thomas Henderson got possession for the heirs of Andrew Miller, under which title it has since been held.'

During the three or four years which ensued before this action was instituted, it would therefore appear, not only that the present defendants were in possession, in person or by others, 'for the heirs,' which is the very expression used as to Black's possession, but would naturally mean in one case, no less than the other, with the privity or request of the heirs, and as agents for them. But to remove all doubt as to this in respect to Henderson, who entered for the heirs of Miller, the record adds, that under the Miller 'title it has since been held.'

Giving a fair construction to all the words in the record, and to all the other facts stated, it is difficult to misunderstand this language. The widow and heirs regarded the reservation as valuable. She refused to sell their rights in it for $1000 offered by Black. It was not abandoned as unworthy of attention; but Black was first put into possession with privity as agent or tenant to them. And after he was expelled, Henderson, as another agent, seems not only to have regained the possession for the heirs, but to have held it by their title since, and probably as their agent or tenant, with like privity. The notice to Henderson, Likewise, to take on himself the defence in this case, and his admission by the court to defend, confirm this view. A third person, disconnected entirely with the title or right of possession, would not usually be admitted. 10 Johns. (N. Y.), 69; 1 Cai. (N. Y.), 151; Fairclaim v. Shamtitle, 3 Burr., 1299, 1301. He was doubtless admitted, then, from his connection with Miller's title. Lord Holt says (Comb., 209), 'No person is admitted to defend in ejectment unless he be tanant, and is or hath been in possession or receives the rent.' Bac. Abr. Ejectment, B. 2. Runnington on Eject., 192, 199, 201, 209.

It is urged further in objection, that Miller's heirs are not parties here. Neither is the owner of the fee a party in ejectment in any case where a lessee or agent under him makes a sub-lease and is admitted to defend for his sub-lessee.

Looking to the whole record, then, these considerations seem to dispose of the question of jurisdiction in favor of the original defendants. But the plaintiffs below rely on some detached expressions in the record from which to infer a different result. Such as the judge speaking of 'an outstanding title' in Miller's heirs. Probably, as already explained from the whole case, the judge meant, by the words 'outstanding title,' one which did not exist in the plaintiffs, and one which, though represented by, had not been conveyed to, the defendants by any formal deed. Under that aspect, all is natural, and our jurisdiction is unimpaired. Such a case would be entirely unlike that of Owings v. Norwood's Lessee, 5 Cranch, 344. But if he meant by outstandiny title one which existed elsewhere, but which the defendants did not set up, nor mean to avail themselves of as a defence by their connection with it, he departs in all essentials from the rest of the record, and all the proof in it, that Henderson entered for the heirs of Miller, held it two or three years under their title, and set it up as his defence.

My dissent rests on this view of the case, though it is by no means certain, that, if a naked outstanding title were shown merely to defeat the plaintiff, and not held under nor relies on through any privity in defence, and it was examined by the court below, when set up to defeat the action, we should not exercise jurisdiction to revise the decision, if a treaty connected with that title is there overruled; because the treaty is a part of the defence there, as much as in other cases. It is relied on for exemption in the action as much as in other cases. The title under a treaty is called in question and decided against as fully as in other cases. The dangers from such a defence being overruled by a state court are as serious as in other cases.

So a judgment of a state court is reversible here at all only when in collision with defences offered under authority from the United States. And here the state court not only overruled an authority so set up, but did it in favor of their own state and of their own citizens, and against the validity of a claim in behalf of an Indian widow and Indian orphans. On general principles, therefore, and with entire respect for the court of Tennessee, it would seem proper, that, if any case should be open to revision by another tribunal, it ought to be one of this character.

As it would be of no use to sustain jurisdiction here, unless in favor of the validity of the title overruled, I would add a few words as to the merits being with the Miller title. It must be conceded, that the title of Miller's heirs ought to be upheld against the plaintiffs, if it became perfected before his death; or if it was so perfected afterwards as to operate or relate back to a time before his death.

The judge below rested his ruling entirely on the position that Miller, dying before the treaty of 1819, though after that of 1817, had acquired no title to the land claimed. But he had fulfilled all the requisites of the treaty of 1817, not afterwards varied by that of 1819. He entered on the lands under the treaty of 1817, which extended to territory afterwards, as well as then, ceded. He improved them under it. He was the head of an Indian family. He registered them under it. See Treaty, art. 8 (7 Stat. at L., 159). He resided on them under it. And the only remaining requisite, the census, which had been provided for by the first treaty, was dispensed with by the treaty of 1819 (7 Stat. at L., 195). Though his death, then, had intervened, his rights had commenced under the treaty of 1817, and become perfected by it and by that of 1819, ceding the territory and dispensing with the census. All, then, should relate back to the period of his entry and registration. It is very familiar law to have proceedings operate back to their commencement, and references need not be extended beyond the common cases of amendments in writs, records, and returns, as well as titles to land confirmed or ratified where before partly completed. Com. Dig. Confirmation; Vin. Abr. Relation; 4 Kent. Com., 450, n.; Clary's Heirs v. Marshall's Heirs, 5 B. Mon. (Ky.), 266; Landes v. Brant, post, 348; 12 Johns. (N. Y.), 141; 3 Cow. (N. Y.), 75; 12 Mo., 145.

As this court, in the opinion just delivered, has not gone into the consideration of the validity of the title of Miller's heirs, I forbear further remarks upon it until brought before us in some other action and form, more acceptable to a majority of the members of this tribunal.

Justices McLEAN, WAYNE, and McKINLEY concurred with Mr. Justice WOODBURY.

title: Henderson v. Tennessee/Dissent Woodbury


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Gayler v. Wilder/Dissent McLean

Mr. Justice McLEAN.

I dissent from the opinion of a majority of the judges in this case. The point of difference, I think, is essential to the maintenance of the rights of the public and also of inventors.

It was proved by James Conner, as appears from the bill of exceptions, 'that between 1829 and 1832 he was engaged in business as a stereotype founder, and knowing that plaster of Paris was a non-conductor of heat, he constructed a safe with a double chest, and filled the space between the inner and outer one with plaster of Paris; the same, substantially, as testified to and claimed by Fitzgerald, except there was no plaster used on the top of the safe. It was made for his own private use in his establishment, and was used by him as a safe from the time it was made till 1838, when it passed into other hands. It was kept in the counting-room while he used it, and was known to the persons working in the foundery.' This evidence was confirmed by another witness.

By the sixth section of the patent act of 1836, it is provided, 'that any person or persons having discovered or invented any new or useful art, machine, manufacture, or composition of matter, or any new or useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others before his or their discovery or invention thereof,' may apply for a patent, &c. The applicant is required to make oath or affirmation that he does verily believe that he is the original and first inventor,' &c., and that he does not know or believe that the same was ever before known or used.'

The seventh section authorizes and requires the Commissioner of Patents 'to make or cause to be made an examination of the alleged new invention or discovery; and if on such examination it shall not appear to the Commissioner that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented or described in any printed publication in this or any foreign country,' &c., the Commissioner may grant a patent.

In the fifteenth section it is provided, 'that whenever it shall satisfactorily appear that the patentee, at the time of making his application for the patent, believed himself to be the first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or any part thereof, having before been known or used in any foreign country, it not appearing that the same or any substantial part thereof had before been patented or described in any printed publication.'

From the above extracts, it is seen that the patentee must be the inventor of the machine, or the improvement of it, or he can have no right. If the thing was known or used by others, he cannot claim a patent. Or if it was patented in a foreign country, or described in any publication at home or in any foreign country, he has no right to a patent. To this there is only the exception in the fifteenth section above cited. But this can have no influence in the present case.

Let these provisions of the statute be compared with the last two paragraphs of the charge of the court, as stated in the third exception:--

'And said court further instructed the jury, that if they found that the use made by James Conner of plaster of Paris was confined to a single iron chest, made for his own private use after said Fitzgerald's discovery and experiments, then it was not in the way of Fitzgerald's patent, and the same was valid; but if the jury found that said James Conner made his said safe, as claimed, and tested it by experiments, before Fitzgerald's invention and improvements, and before he tested the same, then said Fitzgerald was not the first inventor, as claimed, and was not entitled to said patent.'

This charge stands disconnected with any other facts in the case, except those named, and, in my judgment, it is erroneous. If Conner's safe were identical with Fitzgerald's, and though it was of prior invention, yet if it were not tested by experiments before Fitzgerald's improvement, and before he tested the same, the jury under the instruction were bound to find for Fitzgerald. And the case was thus made to turn, not on the priority of invention only, but upon that and the fact of its having been tested by experiments. This introduces a new principle into the patent law. The right under the law depends upon the time of the invention. An experimental test may show the value of the thing invented, but it is no part of the invention.

'The court further charged, that, independently of these considerations, there was another view of the case, as it respected the Conner safe; that it was a question whether the use of it by him had been such as would prevent another inventor from taking out a patent; that if Conner had not made his discovery public, but had used it simply for his own private purpose, and it had been finally forgotten or abandoned, such a discovery and use would be no obstacle to the taking out of a patent by Fitzgerald, or those claiming under him, if he be an original, though not the first, inventor or discoverer of the improvement.'

If there be anything clear in the patent law, it is that the original inventor means the first inventor, subject only to the provision tated in the fifteenth section. This instruction presupposes that the safes are the same in principle. Now, if the invention was patented abroad, or was described in a foreign publication, both of which were unknown to the inventor in this country, still his patent is void. So it is void, if such invention has been known to any person in this country. The instruction says, if Conner's invention 'had been forgotten or abandoned,' it was no obstacle to Fitzgerald's right. Can a thing be forgotten or abandoned that was never known? If known before Fitzgerald's invention, it is fatal to it. By whom must it have been forgotten? By the inventor, or the public, or both? And how must it have been abandoned? When an invention is abandoned, it is said to be given up to the public, and this is the sense in which the term abandonment is used in the patent law. Such an abandonment would be fatal to the right of Fitzgerald.

Conner's safe, as appears from the bill of exceptions, was used in his counting-house, being accessible to every one, some six or eight years. In 1838 it passed into other hands; but into whose hands it does not appear. In 1843, Fitzgerald obtained his patent. How long before that he made experiments to test the invention is not proved. At most, the time must have been less than five years. This is a short period on which to found a presumption of forgetfulness. The law authorizes no such presumption. It can never become the law. It is not founded on probability or reason. The question is, Was Conner's invention prior to that of Fitzgerald? That it was of older date by some ten or twelve years is proved. And the instruction, it must be observed, was founded on the supposition that both inventions were similar.

The instruction seems to attach great importance to the fact that Conner's safe was used only for his private purpose. This is of no importance. The invention is the question, and not the manner in which the inventor used it. The safe was constructed at the foundery, and must have been known to the hands there employed. How can it be ascertained that Fitzgerald was not informed by some of these hands of the structure of Conner's safe, or by some one of the many hundreds who had seen it in his counting-house in the city of New York? It was to guard against this, which is rarely if ever susceptible of proof, that the act is express,-if the thing patented was known before, the patent is void. If the fact of this knowledge in any one be established, it is immaterial whether the patentee may have known it or not, it avoids his patent.

The law, on this subject, is not founded upon any supposed notions of equity. A foreign patent for the same thing, or a description of the thing in a foreign publication, is as effectual to avoid the patent as if the patentee had seen the prior invention. Notice to him is not important. The law is adopted on a settled public policy, which, while it is just to inventors, protects the rights of the public. Any other basis would open the door for endless frauds, by pretended inventors, without the probability of detection. And especially does this new doctrine of forgetfulness, or abandonment, used in any other sense than as recognized in the patent law, leaving such matters to a jury, overturn what I consider to be the settled law on this subject. Of the same character is the fact, that the invention was used for private purposes. A thing may be used in that way, and at the same time be public, as was the case with the Conner safe, and yet the jury are necessarily misled by such an instruction.

title: Gayler v. Wilder/Dissent McLean


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Gayler v. Wilder/Dissent Daniel

Mr. Justice DANIEL, dissenting.

Differing from the majority in the decision just pronounced, I proceed to state the grounds on which my dissent from that decision is founded.

On two essential points in this cause, it seems to me that the learned justice who tried it at the Circuit has erred, and that the decision here should therefore have been for a reversal of his judgment. Those points involve, first, the right of the plaintiff below to maintain his action upon the title or right of action deduced from Fitzgerald through Enos and Benjamin Wilder; and secondly, a right to, or interest in the subject of the suit on the part of the plaintiff below, admitting to have been originally invented and used by some other person than Fitzgerald; a right founded upon an assumption that this subject had been used in private only, or had, in the language of the learned justice, been 'finally forgotten or abandoned' by such first inventor. These points are presented by the first and third exceptions of the plaintiffs in error to the rulings at the trial below. The plaintiff in the Circuit Court claimed by assignment from B. G. Wilder, assignee of Enos Wilder, assignee of Daniel Fitzgerald, alleged to have been the inventor of the Salamander safe. By the paper deduction of title, it appears that, on the 11th day of April, 1839, Fitzgerald, alleging that he had invented an improvement called the Salamander safe, for which he was about to apply for letters patent, for the consideration of five thousand dollars, sold the interest he then had, or might thereafter have, in this invention, to Enos Wilder; that Enos Wilder, on the 1st day of September, 1843, for the consideration of one dollar, assigned and transferred to the plaintiff all the right, title, and interest which he had derived from Fitzgerald, under the agreement of the 11th of April, 1839; that no patent issued for this Salamander safe until the year 1843, when a patent was granted to Daniel Fitzgerald, as the original inventor; that no patent for this invention has ever been granted either to Enos or B. G. Wilder, either as inventor or assignee of this safe; that the title, whatever it may be, rests upon the agreement between Fitzgerald and Enos Wilder, of the 11th of April, 1839, before the patent to the former.

It must be recollected, that this is an action at law; and in order to maintain it, the plaintiff was bound to set out and to prove a legal title. Has he done either? What was the character of the interest or title transferred from Fitzgerald to Enos Wilder? This could not transcend the interest or title possessed by Fitzgerald himself; and what was this? A title to any specific machine which he may have constructed, and of which no person could rightfully deprive him; and a claim upon the good-will and gratitude of the community, if in truth he should have conferred upon them a benefit by the discovery and construction of his machine. I speak now in reference to rights derivable from the common law; and independently of the Constitution or of statutory provisions. The mere circumstances of inventing and constructing a machine could no more inhibit its imitation, than would the structure or interior arrangement of a house of peculiar ingenuity or convenience prevent the like imitation by any one who could possess himself of its plan. The mere mental process of devising an invention enters not into the nature of property according to the common law; it forms no class or division in any of its enumerations or definitions of estates or property, and is a matter quite too shadowy for the practical character of that sturdy system.

A doctrine contrary to this, though with some discrepancy amongst the judges as to its extent, seems at one time to have obtained in the King's Bench, as propounded in the case of Millar v. Taylor, in 4 Burr., 2305, in opposition to the profound and unanswerable reasoning of Mr. Justice Yates; but upon a review of the same question in the Lords, in the case of Donaldsons v. Becket and others, the doctrine of the King's Bench was repudiated, and that of the common law, as asserted by Yates, Justice, vindicated and restored. And, indeed, if, according to the opinions of some of the judges in the case of Millar v. Taylor, the mere mental process of invention constituted an estate or property at the common law, and property vested in perpetuo, except so far as it should be transferred by the owner, it is difficult to perceive tha necessity of a cautious and complicated system for the investment and security of interests already perfect, and surrounded with every guard and protection which is inseparable under the common law from every right it has created or recoguized. But if the mere mental and invisible process of invention, apart from the specific, sensible, and individual structure, can be classed at all as property at law, it must partake of the character of a chose in action, much more so than an obligation or contract, the terms and conditions of which are defined and assented to by the contracting parties. To choses in action, it can scarcely be necessary here to remark, assignability is imparted by statutory enactment only, or by commercial usage. To hold that the single circumstance of invention creates an estate or property at law, and an estate and legal title transmissible by assignment, appears to me a doctrine not merely subversive of the common law, but one which contravenes the origin and course of legislation in England in relation to patent rights, and renders useless and futile both the constitutional provision and all the careful enactments of Congress for the security and transmissibility of the same rights. For why, as has been already remarked, should that provision and these enactments have been made for the establishment and security of that which was established and safe independently of both? I hold it, then, to be true, that the circumstance of invention invests no such perfect estate or right of property as can be claimed and enforced at law or in equity against the user of the same invention, either by subsequent inventors or imitators, and that any estate or property in the mere mental process of invention must be traced to and deducible from the Constitution and the acts of Congress alone. I cannot but regard as mischievous and alarming an attempt to introduce a quasi and indefinite, indefinable, and invisible estate, independently of the Constitution and acts of Congress, and unknown to the rules and principles of the common law.

It is the patent alone which creates an estate or interest in the invention known to the law, and which can be enforced either at law or in equity, either by the inventor or by the person to whom, by virtue of the statute, he may assign his rights. Down to the act of Congress of 1837, nothing but the estate, interest, or property created or invested by the patent itself, was made assignable. The language of the law is, that 'every patent,' 'the exclusive right under any patent,' 'the thing patented,' may be assignable. The fact or existence of a patent is in every instance inseparable from the right given. It is this fact and this only which impresses the quality of assignability. Of course, under these provisions there could be no transfer of the legal title previously to a patent.

By section sixth of the act of Congress approved March 3d, 1837, it is provided that thereafter any patent to be issued may be made to the assignee of the inventor or discoverer, upon the conditions set forth in that section. Yet still it is presumed that, until the issuing of a patent, so far is it from being true that a legal estate or title existed in such assignee, it is clear, on the contrary, that no legal title existed before the patent in the inventor himself, for it is the patent which constitutes his title. Of course, then, the assignee can at most hold nothing but an equity under such an assignment, which he may insist upon under this assignment against the inventor or against the government; but he has no legal title by force merely of such an assignment, and a fortiori he has no legal title, if the patent, notwithstanding such an assignment, is in fact issued to the inventor, but is thereby entirely excluded from all pretension to a legal title. Thus, in the case before us, the patent under which the plaintiff claims was, subsequently to the agreement between Fitzgerald and Enos Wilder, issued to Fitzgerald, the inventor, and, according to the proofs in the cause, has never been renewed to Enos Wilder, nor to any claimant under him, nor been assigned to any such claimant, but remains still in the alleged inventor, Fitzgerald. It seems to me, then, indisputable, that the legal title indispensable for the maintenance of this suit at law never was in the plaintiff, and that he could not maintain the action.

The second instance in which I hold the learned justice who tried this cause to have erred is that in which he instructed the jury as follows:-'That if Conner had not made his discovery public, but had used it simply for his own private purpose, and it had been finally forgotten or abandoned, such discovery and use would be no obstacle to the taking out of a patent by Fitzgerald, or those claiming under him, if he be an original, though not the first, inventor or discoverer of the improvement.' In considering this instruction of the learned judge, the first vice with which it appears to be affected is its violation of a rule thought to be universally applicable to instructions to juries in trials at law; and that rule is this, that instructions should always arise out of, and be limited to, the facts or the evidence in the cause to which the questions of law propounded from the bench should be strictly applicable; and that instructions which are general, abstract, or not springing from, and pertinent to, the facts of the case, are calculated to mislead the jury, and are therefore improper. Tried by this rule, the instruction of the learned judge, so far as it relates to Conner's not having made his discovery public, or having finally forgotten or abandoned it, is certainly irrelevant to, and unsustained by, any evidence in the record. So far is the existence of such testimony from being shown, the converse is proved and is justly inferable throughout; for although it does not appear that Conner advertised his invention in the public papers, or claimed a patent for it, it is admitted that he used this safe in an extensive business establishment, to which it is certain from the nature of his business the public had access; and it is not pretended that he made any effort at concealment of what he had invented, and the record is entirely destitute of evidence of an abandonment of his invention. As to the assumption of his having forgotten it, there is neither a fact, an inquiry, nor conjecture in the testimony pointing to such a conclusion. The instruction appears to me to be wholly gratuitous and irrelevant. But supposing this instruction to have been founded upon testimony introduced before the jury, let us consider for a moment its correctness as a rule of law applicable to this cause. This charge, it must be recollected, admits that Conner was, or might have been, the first inventor; and, notwithstanding, asserts that Fitzgerald, though posterior in time, might, upon the conditions and considerations assumed by the judge, become the owner of the right. Are these conditions warranted, either by the rules of public policy, or by the terms and language of legislative provisions on such subjects? It is said that patent privileges are allowed as incitements to inventions and improvements by which the public may be benefited. This position, that may be conceded in general, should not be made a means of preventing the great and public purposes its legitimate enforcement is calculated to secure. The admission of this principle leaves entirely open the inquiries, whether he is more the benefactor of the public who makes a useful improvement which he generously shares with his fellow-citizens, or he who studies some device which he denies to all, and limits by every means in his power to a lucrative monopoly; and still more, whether the latter shall be permitted to seize upon that which had already (as is here admitted) been given to the public, thereby to levy contributions, not only on the community at large, but upon him even who had been its generous benefactor. It was doubtless to prevent consequences like those here presented, that the priority and originality of inventions are so uniformly and explicitly insisted upon in all the legislation of Congress, as will presently be shown. The tendency of the learned judge's charge to mislead the jury, from its want of precision, and its failure to define any certain predicament upon which the action of the jury should be founded, is of itself an insuperable objection to that charge. Thus it is said, if Connor 'had not made his discovery public.' In what mode? it may be asked. What form of publicity did the learned judge intend the jury should require? It is shown that Conner used his safe publicly; that is, he concealed it from no one; and if any mode or kind of publication or concealment was requisite, either to establish or conclude the right of Conner, or to conclude common right (a delinquency in the nature of a forfeiture), surely that mode, if found either in any statute, or in the rules of the common law, ought to have been clearly laid down, so as to guard the rights of all. In the next place, it is said by the learned judge, that, if Conner had abandoned this improvement which the charge admits him to have invented, this would justify a patent to another who had not known of the improvement, although a subsequent inventor. I have always understood it to be indisputable law, that wherever an inventor abandons or surrenders an invention or improvement which he has certainly made, and neither claims and exclusive right in himself nor transfers it to another, the invention or improvement is given to the public; but by the charge in this case, such an abandonment transfers an exclusive right to one who, by the case supposed, is admitted not to be the first inventor. So, too, with respect to the hypothesis of the learned judge that the invention had, or might have, been forgotten. To this the same objections of vagueness and uncertainty, and the graver objection of injustice to the real inventor or to the public, are applicable. By whom and for what interval of time must this improvement have been forgotten, in order to transfer it from the originator thereof? For a term of years? And if so, for how long a term? But suppose he forgets it for his lifetime, shall his executor or his posterity, upon the exhibition of indisputable proofs of the invention, yea, the very machine itself, perfect in all its parts and in its operation, be cut off? This surely cannot be; but, at any rate, the jury should have been furnished with some rule or measure of obliviousness, if this was to be made the substantive cause of deprivation as to the original inventor, or the foundation of right and of exclusive right in one confessedly not the first inventor. An attempt has been made to compare the doctrine propounded by the court to what it might be thought is the law as applicable to the discovery, or rather recovery, of the processes employed in what have been called the lost arts. This illustration is in itself somewhat equivocal, and by no means satisfactory; for if that process could certainly be shown to be the same with one claimed by the modern inventor, his discovery could scarcely have the merit of originality, or be the foundation of exclusive right. But, in truth, the illustration attempted to be drawn from a revival of a lost art is not apposite to the present case. The term lost art is applicable peculiarly to certain monuments of antiquity still remaining in the world, the process of whose accomplishment has been lost for centuries, has been irretrievably swept from the earth, with every vestige of the archives or records of the nations with whom those arts existed, and the origin or even the identity of which process none can certainly establish. And if a means of producing the effect we see and have amongst us be discovered, and none can either by history or tradition refer to a similar or to the identical process, the inventor of that means may so far claim the merit of originality, though the work itself may have been produced possibly by the same means. But not one principle drawn from such a state of things can be applied to a recent proceeding, which counts from its origin scarcely a period of fifteen years. In fine, this ruling of the learned judge is regarded as being at war not less with the policy and objects than it is with the express language of all the legislation by Congress upon the subject of patent rights, which legislation has uniformly constituted priority of invention to be the foundation and the test of all such rights. Thus in the act of April 10th, 1790, the first patent law, (1 Stat. at L., 109,) it is declared by the first section, 'That upon the application of any person or persons, &c., setting forth that he, she, or they hath or have invented or discovered any useful art, &c., not before known or used,' &c.; and the sccond section of the same statute, requiring a specification of any invention or discovery, declares that it shall be so described 'as to distinguish it from all other things known or used.'

The act of February 21st, 1793, (1 Stat. at L., 318), provides, that when any citizen or citizens of the United States shall allege that he or they have invented any 'new and useful art, &c., not known or used before the application,' &c.

By the act of April 17th, 1800, (2 Stat. at L., 38,) which extends the privilege of patents to aliens, proof is required that the art, invention, or discovery hath not been known or used in that or any foreign country. It is true that this requisition has been so far relaxed as to admit of the patenting in this country inventions which had been invented and used abroad, but with respect to this country, the invention, &c., must still be original.

The act of July 4th, 1836, (5 Stat. at L., 117,) reorganizing the Patent-Office, the language of the sixth section is as follows: 'That any person or persons having discovered or invented any new and useful art, &c., not known or used by others before his or their discovery,' &c. The language and import of the laws here cited are too plain to require comment, and I think that the production of a single instance from the statute-book may safely be challenged by which the requisites above mentioned have been dispensed with. Every law, on the contrary, has emphatically demanded originality and priority as indispensable pre-requisites to patent privileges, and every aspirant to such privileges is expressly required to swear to these pre-requisites, as well as to establish them. These tests ordained by the laws are not only founded upon the true reason for the privileges conferred, but they are simple and comprehensible; whereas the innovations permitted by the ruling of the learned judge not only conflict with the true reason and foundation of patent privileges, but tend to an uncertainty and confusion which cannot but invite litigation and mischief. I think that the judgment of the Circuit Court should be reversed, and the cause remanded for a venire facias de novo.

Mr. Justice GRIER also dissented.

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 of themselves, hoping to get notoriety; but Mark Lemon was too old to be sold in that way'—as no doubt Shirley Brooks is.

'An hotel-keeper,' he added, 'who had lately opened a house in a watering-place, pleasantly situated, offered, if a cut of his premises were inserted, and a couple of letters were written and dated from his house, in the pages of "Punch," to let any two gentlemen connected with the office stay at his hotel free of charge for a month.' On one occasion, when the lecturer was in a railway carriage, the talk turned on 'Punch,' and a fellow passenger informed him in confidence that he had written a series of papers in the periodical of which Shirley Brooks himself was the author.

Our outline of the remarks the lecturer made on the history of 'Punch' is necessarily very imperfect. But the lecture on 'Satire' was altogether a very charming evening's entertainment. We wish the editor of 'Punch' would repeat it. We close this notice by quoting a few words from James Hannay's estimate of the satire of 'Punch:' 'The decorum which distinguishes; "Punch" from the best effusions of the class in the olden days belongs as much to the age as to the periodical. In the worst of times our facetious friend is innocent; and though our progenitors seem to have thought that all wit required great license, the student finds that they were often licentious and dull too, sacrificing decency, and getting nothing in exchange.'

Shirley Brooks, in accepting the duty of carrying out the traditional policy of the leading satirical journal on all social and political questions, in taking the chair so long and so well filled by one of the first promoters of the paper, and in essaying to maintain the prestige of the best journal of the kind in the world, took upon himself a grave responsibility. For 'Punch' belongs to the British nation. This step was taken two years ago. The result has proved how happy was the selection of a successor to him who had grown old with the paper, whose interests he watched so well—how capable and how gentle a follower has been found to hold the coachman's whip over the flyers that pull the 'Punch' coach.

Ten years ago, this couplet closed the lecturer's comments on the paper


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Author:James Hannay

 * James Hannay (1827-1873), Scottish novelist and journalist
 * James Owen Hannay (1865-1950), wrote under the pseudonym, George A. Birmingham

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Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/117

Rh as to the narrators which ought to have been affixed to every tale.

The Pawnee Hero Stories and Folk-tales, published by Mr. Grinnell, are very valuable, as giving us an authentic glimpse of the traditions and mode of life (for the author has added a number of interesting anthropological notes) of a North-American tribe, of which only too little is known. In my report last year I drew attention to the importance of the historical, as well as the mythical, traditions of the Maoris. One section of Mr. Grinnell's book is devoted to corresponding Pawnee traditions, called by him "Hero Stories". The mythical traditions deal chiefly with the relations conceived to exist between men and the lower animals. Two of them narrate the origin of the bear and deer dances. Others are legends of persons who have died and been restored to life. None can safely be overlooked by students of savage thought.

M. Dumontier has included a dozen stories in his Annamite collection, which is of much inferior interest to those of Landes and Des Michels, and, indeed, if tales only be considered, to his own previous Légendes Historiques de l'Annan et du Tonkin. The tradition of the first man is curious, the human race, according to it, being derived from a man who was hatched from a square egg dropped by a bird, one of a pair produced from a tree. Three of the stories are comic; one turning on the effect of a mirror on persons who had never seen such a thing before, another an analogue of the barber's blind brother in the Arabian Nights, and the third a well-known variant of "The Three Wishes". We have also a Travelling Deity story, a story of a brother and sister who married without being aware of their kinship, and two stories turning on the superstition that he who succeeded in placing his father's bones inside the mouth of a subaqueous dragon would become a king. The remainder are beast tales, one of which—"The Opium-smoker and the Tiger"—is obviously of quite modern origin.


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Author:James Hannay (1827-1873)

Works

 * Singleton Fontenoy (1850), in 3 vols.
 * Lectures on Satire and Satirists (1854)
 * Eustace Conyers (1855)
 * Characters and Criticisms (1865)
 * Three Hundred Years of a Norman House (1867)
 * Studies on Thackeray (1868)

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110 New ground, or almost new ground, has been broken by Dr. Francesco Mango in his Sardinian Folk-tales. Twelve or fourteen folk-tales from the island of Sardinia at most had previously appeared in black and white, of which eleven were published in early volumes of the Archivio, and one is practically inaccessible to English students, having been printed in a limited edition on the occasion of Prof Guarnerio's wedding. Dr. Mango mentions also two others by Prof. Bariola, but where and when they were published he does not say. It is to us a curious custom, that of printing a tale in a dainty little pamphlet as a wedding compliment; but it is common among folk-lore students in Italy, and quite a number have thus appeared. Only a few of these have been translated by Prof. Crane in his Italian Popular Tales. He seems to have access, in that wonderful library at Harvard, to them all. Could he not be induced by the Council of the Folk-Lore Society to add to our heavy debt to him by translating the rest for the pages of ? This is by the way. The book before us consists of twentysix tales in their original dialect, followed by literal translations. Dr. Mango only names one of the peasants from whom he and his two fair assistants obtained them. The difficulties of collection, he says, were so great that he would have abandoned the enterprise but for the help and encouragement of Dr. Pitré, under whose editorship the volume appeared. The stories are obviously genuine, and they present some interesting variants of well-known themes,

A portion of Mrs. Milne-Home's little book consists of a reprint of the Ananci stories somewhat incongruously appended to Sir G. W. Dasent's Popular Tales from the Norse. The remainder is new, and comprises fourteen stories, chiefly variants of Uncle Remus' collection, where the part of Brer Rabbit is played by the Anansi. Brother Death, however, is a new character in such a company. The introduction deserves to be read for the writer's observations on the negro customs and superstitions in Jamaica,


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 Rh and on the modifications undergone by the stories to adapt them to West Indian surroundings. Here, again, no particulars of the mode of collection are given.

Mr. Allen's Korean Tales, though placed before Western readers for the first time, are translated from a literary original. There can be little doubt, however, as to their being at bottom traditional. The series opens with a few beast tales, whence we pass to "The Enchanted Wine-jug", in which an old man is befriended by a Travelling Deity, to whom he had shown kindness, and who in return gifts him with an amulet that causes his wine-jug never to be empty. The story concerns the loss of the amulet, and its recovery by his two faithful servants, his cat and dog, at the expense, however, of perpetual enmity between cats and dogs ever since. Among the other stories is one of two brothers, one rich and covetous, the other poor and virtuous; and another illustrating the power of fate, in which we read of the son of a nobleman's concubine who is cast out and joins a band of robbers, but ultimately makes his peace with the king, and, by supernatural aid, conquers an island for himself, rescuing a fair maiden with the usual result. The stories are preceded by an interesting account of Korea.

It is not easy to know for what purpose the collection entitled Folk-lore and Legends has been published, beyond that of producing pleasant little books good in print and paper, and suitable for whiling away an idle hour. At all events, it contains little or nothing that the student will not easily find elsewhere. It only purports to be "a selection", and no hint is afforded as to the source of any of the tales, except in the Scandinavian volume, where half-adozen purport to be taken from the Prose Edda. This precludes all scientific use of the volumes. And yet the author is evidently impressed with a genuine love of folktales, and has some knowledge of the subject. He might do good work, if he would go about it in the right way.

Prof. Crane's edition of The Exempla of Jacques de Vitry,


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112 on the other hand, is one of the most valuable books issued by the Folk-Lore Society. It forms an admirable companion-volume to the Contes Moralisés of Nicholas Bozon, put forth a few months earlier by the Société des Anciens Textes Français, under the editorship of Miss Toulmin Smith and M. Paul Meyer. The introduction to the latter work, written by M. Paul Meyer, is learned and judicial; and it would have been still more complete had he been able to refer to Mr. Jacobs' edition of The Fables of Æsop, reported on last year. The notes to both the Exempla and the Contes Moralisés greatly enhance their usefulness. Those of Prof Crane display wider research in the literary history of the fable, and his whole book is a model of editing. I may note, incidentally, that the thirteenth example, that of the mouse in the dish, has survived in England as a traditional apologue until the present day. I remember my own nurse, a Cambridgeshire woman, often repeating it to me as a child. Prof Crane notices its survival in Italy, but he refers to no case in England, nor to any English writer who has mentioned it beside Swift.

Miss Hodgetts leaves us to find out which of the items included in her Tales and Legends from the Land of the Tsar are translations from existing collections. Some of them are easily recognised from Mr. Ralston's versions, and it was hardly necessary to present them afresh to English readers. Much more real service would have been done had she taken the trouble to give us chapter and verse for all that she has obtained from Afanasief and other writers, and stated concerning the rest when, where, and from whom she heard them. Thus much said, however, let me hasten to add that thirty of the eight-and-thirty stories here brought together are new, in their Russian form, to English readers; and there are few English men or women who have the opportunity of obtaining Russian folk-tales at first hand. To those who have the opportunity and use it, we may well be grateful.

In Tales of the Sun, Mrs Howard Kingscote has


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 Rh the same fault as Miss Hodgetts. Indeed, she admits that she only obtained the stories which are her contribution to the volume from the old women in the bazaars, through her native servants—of what town she carefully refrains from telling us. It is evident that the collection would have been of little value had it not been for Pandit Natêsa Sástrî's help; and Mrs. Kingscote has done wisely in retaining Mr. Clouston's long and important note on "The King and his Four Ministers" (here given under the name of "The Lost Camel and other Tales"), as well as the smaller notes by Mr. Clouston and Captain Temple to Pandit Sástrî's tales. The remaining notes are presumably to be attributed to Mrs. Kingscote herself They are short and to the point. Altogether, folk-lore students will not regret to have this supplement to the folk-lore of Southern India already published by Pandit Sastri, though it is much to be regretted that we are not even told to which of the numerous populations of that land we are indebted for the various tales.

English Fairy Tales is the first form of the first instalment of Mr. Jacobs' promised collection of English folk-tales, and the most delightful book of fairy tales, taking form and contents together, ever presented to children. Of its abundant popularity among the public to which it is specially addressed, nobody who has made the experiment will doubt. Treating it from a scientific point of view, it may be said to consist of forty-three tales, roughly divisible into twenty mdrchen, four sagas, seven drolls, three cumulative tales, two beast tales, and seven nonsense tales, tales working up to a climax of comic grimace, and so forth, classes for which specific names have yet to be found. One of these, "The Three Bears," Mr. Jacobs says, is of literary origin, having been invented by Southey. This statement requires some qualification. The likeness of the plot to a portion of the tale of "Little Snow-white", and the identity of some of the phrases, render it probable that the most that can be attributed to Southey is the giving of


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 114 a new turn to a well-known inarche7i. I must also make a protest on another point. Glad as I shall be to find that the opinion I ventured to express in the introduction to English Fairy and other Folk Tales, that the märchen recorded in England are very few, is unfounded, still I must, in all fairness, object to the inclusion among English fairy tales of some that Mr, Jacobs has added to his list. It may be probable—nay, I think we may assume as certain—that the stories of "Nicht Nought Nothing", "Childe Rowland", "The Red Etin", and others, were in substance told in England generations ago. This is, however, a mere inference; and we do not know in what precise form they were repeated to our forefathers. It may have been that in which they are here presented: it is equally likely not to have been. Again, Mr, Jacobs has paraphrased ballads in order to obtain some of his stories, like "Binnorie", "The Laidly Worm", "Earl Mar's Daughter". Here, again, there can be little doubt that the stories once existed in other forms than verse; nor would it be reasonable to complain of their being put into prose for the purpose of the present volume. But it must not be forgotten that these prose versions are not themselves genuine folk-tales, but only literary reconstructions which may be more or less accurate. The careful and scholarly notes appended to the book display with frankness the alterations Mr. Jacobs has deemed proper to make for the little ones of the present day, and give us a slight foretaste of the banquet he is preparing "for students only".

Of The Red Fairy Book I need only say that it is a worthy companion to The Blue Fairy Book, published last year. The stories are, except "Jack and the Beanstalk", from foreign, and some of them from unfamiliar, sources, and so will be the more welcome to the audience to whom they are addressed—the same audience as that to which English Fairy Tales is intended to appeal. May both editors succeed in making many youthful disciples, to


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Rh herrings were laid on sticks, and exposed to the smoke of a fire of green moss kindled below. This dried them, and gave them the peculiar flavour so agreeable to many.

We were visited by another shoal of fish a month after that of the herrings. Jack first discoverd them at the mouth of Jackal River, where they had apparently come to deposit their eggs among the scattered stones. They were so large, that he was sure they must be whales. I found them to be pretty large sturgeons, besides salmon, large trout, and many other fishes. Jack immediately ran for his bow and arrows, and told me he would kill them all. He fastened the end of a ball of string to an arrow, with a hook at the end of it; he tied the bladders of the dog-fish at certain distances to the string; he then placed the ball safe on the shore, took his bow, fixed the arrow in it, and aiming at the largest salmon, shot it in the side; the fish tried to escape; I assisted him to draw the cord; it was no easy task, for he struggled tremendously; but at length, weakened by loss of blood, we drew him to land, and despatched him.

The other boys came running up to congratulate the young fisherman on his invention, and as it was to be feared that the rest, alarmed by this attack, might take their departure, we determined to abandon everything for the fishery. Fritz threw his harpoon, and landed, by means of the reel, some large salmon; Ernest took his rod, and caught trout; and I, armed like Neptune with an iron trident, succeeded in striking, amongst the stones, some enormous fish. The greatest difficult was to land our booty; Fritz had struck a sturgeon at least eight feet long, which resisted


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Rh become in future years enthusiastic recruits for the Folk-Lore Society!

The second part of the Kurdish Collections of MM. Prym and Socin consists of tales and songs in the dialect of Bohtan translated by M. Socin. Nearly all of these are from written originals, and most of them are tribal or religious sagas. Literary influences have been at work on them for many a year; but they are by no means without interest for students of the problems of the diffusion of folk-tales. The wild exaggerations of oriental fancy, still more marked perhaps in the Siberian collection published by M. Radloff, in whose footsteps the present editor walks, are here abundantly exemplified. The poetical provenance of the tales is evidenced by the sad catastrophes which close them, as well as by the verbiage wherein they are clad. The first tale is noticeable as repeating the incident which opens the immortal story of "Camaralzaman and Badoura".

A book half the size of Mr. Parkinson's Yorkshire Legends and Traditions, omitting all the verses and rhetorical clap-trap, might be made of some scientific value if care were taken to specify the source of each tradition, and, where possible, to obtain it direct from the mouths of the natives. Many of the traditions are still living, as Mr. Nicholson has shown in his Folk-lore of East Yorkshire—a better book in every way, though one that still leaves much to be desired as to exactness of record. Some of the narratives Mr. Nicholson gives are very interesting: among these may be mentioned the legend of Willey How, which is told, first of all, by William of Newbridge. In Willey How the fairies had their dwelling; but I may state, for the information of Mr. MacRitchie, that the How in question was never in fact inhabited either by the living or the dead. Lord Londesborough caused it to be opened in the year 1857, but found nothing. Thirty years later Canon Greenwell reopened it, and ascertained that, in spite of its size and the enormous care evidently bestowed upon


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 he now edits. The thoroughly English sentiment that inspires this homely rhyme is the yeast that leavens the fancy, wit, and satire which so often have lighted the pages of our Fleet-street friend. The name of Shirley Brooks is a guarantee of the maintenance of the old principles in the 'Punch' of the future.


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176 our united efforts, till my wife brought the buffalo, which we harnessed to the line, and made ourselves masters of this immense prize.

We had a great deal of labour in opening and cleaning all our fish: some we dried and salted; some my wife boiled in oil, as they preserve the tunny. The spawn of the sturgeon, a huge mass, weighing not less than thirty pounds, I laid aside to prepare as caviare, a favourite dish in Holland and Russia. I carefully cleansed the eggs from the skin and fibres that were mixed with them, washed them thoroughly in sea-water, slightly sprinkled them with salt, then put them in a gourd pierced with small holes to let the water escape, and placed weights on them to press them completely for twenty-four hours. We then removed the caviare in solid masses, like cheeses, took it to the smoking-hut to dry, and in a few days had this large addition to our winter provision.

My next employment was the preparation of the valuable isinglass. I took the air-bladder and sounds of the fish, cut them in strips, twisted them in rolls, and dried them in the sun. This is all that is necessary to prepare this excellent glue. It becomes very hard, and, when wanted for use, is cut up in small pieces, and dissolved over a slow fire. The glue was so white and transparent, that I hoped to make window-panes from it instead of glass.

After this work was finished, we began to plan a boat to replace our tub raft. I wished to try to make one of bark, as the savage nations do, and I proposed to make an expedition in search of a tree for our purpose. All those in our own


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116 its construction, it was merely a cenotaph. A grave there was, sunk more than twelve feet deep in the chalk rock; but no corporeal tenant had ever occupied it. Picts and Finns were alike foreign to it; yet here is a legend just like some of those Mr. MacRitchie relies on, of a fairy festival within its earthen walls, which has persisted to our certain knowledge for seven hundred years. I have dealt elsewhere with Mr. MacRitchie's book, and have no intention of discussing it again. It is an argument to prove a thesis quite untenable, namely, that the fairies of tradition were the prehistoric, dwarfish, races of Northern Europe driven out by the ancestors of the present peoples. In Scotland and Ireland, the author tells us, these races were called Picts and Finns, and they inhabited barrows, such as are still known in Scotland as Picts' Houses. Many of these barrows seem, in fact, to have been used as residences: to some of them fairy traditions yet cling, and they are quoted by Mr. MacRitchie in proof of his position. The legend of Willey How is an instance of a tradition of this kind, attaching with great persistency to a barrow that never was a place of human abode; and it is not an unfair test of the value of the evidence Mr. MacRitchie brings forward to support this branch of his argument.

Of Miss Garnett's book on The Christian Women of Turkey, it will be enough to say here that the folk-tales it contains were all, or nearly all, previously in print, though scarcely any of them were known to English readers. They are all interesting, and their importance is enhanced by the full and vivid account of native life and superstitions in which they are embedded. Dr. Krauss has included a number of sagas illustrative of South Slavonic superstitions in his work on that subject. The narratives have been gathered at first hand, and the particulars relative to them are carefully recorded.

The Doyle Fairy Book and (except for the last chapter) Shadowland in Ellan Vannin hardly fall within the limits


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Rh of this report. The chief point of the former is the illustrations by the late Richard Doyle, repeatedly recalling the same artist's design for the cover of Punch. The latter book causes me to regret that with Mrs. Russell's abilities, opportunities, and enthusiasm, she has not given us a collection of the genuine and unadorned folk-lore, all duly ticketed and pigeon-holed, of the island she loves so well. It is not too late to hope that she may be induced to make so desirable a contribution to science. Waldron's is the only book on the subject, for the chapters given by Train are somewhat grudgingly devoted to it in a larger work; and Waldron labours under the difficulty of having written in a pre-scientific age. From The Deemster we learned what wealth lay buried in the mountain recesses of the Isle of Man; and Mrs. Russell's little book confirms the knowledge. But in neither case is the store, by its form, available for students, save in Mrs. Russell's last chapter, however, where she gives an account of a few superstitions, and relates some stories not hitherto recorded; but they, alas! only whet the appetite.

I have left but little space to deal with Mr. Clouston's treatise (for this it is) on Chaucer's "Squire's Tale", and Herr Marx's work on Greek Folk-tales of Grateful Beasts. The importance of the former will be understood when I say that Mr. Clouston has filled more than two hundred pages with abstracts of analogues of the tale and of the various magical instruments—horses, chariots, mirrors, images, rings, gems, swords, and spears—with which it is concerned. He has ransacked literature and tradition, with a result that every one who knows his writings would have anticipated. The reader is presented with a cyclopaedia of information; and the pity is that it is intended only for the members of the Chaucer Society, for it is worthy of a wider audience. Incidentally Mr. Clouston administers a rebuke to the late Sir R. F. Burton for his " explanation" of the ebony horse in the Arabian tale as simply Pegasus, "which". Sir Richard lucidly declares, "is a Greek


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 118 travesty of an Egyptian myth developed in India"! In emphatically repudiating this "explanation", Mr. Clouston, as most readers of this review will be glad to learn, states his belief that the identities found in savage folk-lore with the mythologies of ancient nations and the folk-lore of modern Europe and Asia, are impossible to explain by any theory of transmission, and therefore "have been independently developed by widely different and widely separated races in similar conditions of life, and having more or less similar modes of thought".

Herr Marx has studied with great care and acuteness the literary history of ancient Greek folk-tales concerning Grateful Beasts. The chief animals dealt with are the dolphin, eagle, stork, lion, dog, horse, elephant, and snake. The last-named is studied with special fulness, and should not be overlooked by any one interested in the relations of snakes with the spirits of the dead. The author is by no means a partisan of the Buddhist origin of the Grateful Beast; on the contrary, he maintains, in opposition even to Benfey, that the fable of the Lion and the Mouse originated in Greece, and migrated to India, where the lion's part is played by an elephant.

The preceding paragraphs had all been written when Mr. Douglas Hyde's Beside the Fire was issued. The key-note of Dr. Hyde's work is struck in one of his opening-pages. "The folk-lore of Ireland", he says, "remains practically unexploited and ungathered. Attempts have been made from time to time during the present century to collect Irish folk-lore, but these attempts, though interesting from a literary point of view, are not always successes from a scientific one." The attempt before us is on scientific lines. It consists of fifteen stories, six of which are given in their native Irish, with translations opposite, according to the plan adopted by Campbell and Maclnnes; and the remainder are from an Irish work by the same author previously published. All of them are chosen "on account of their dissimilarity to any published Highland tales, for, as


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User talk:TeleComNasSprVen

— billinghurst  sDrewth  08:16, 6 January 2011 (UTC)

Note
I have reverted some of the speedy deletes that you created for redirects to DNB entries. These articles will be appearing as we step through the project so may as well continue to exist. — billinghurst  sDrewth  08:16, 6 January 2011 (UTC)

Bacon's Essays
I've uploaded the two scans of Bacon's Essays: File:Bacons Essays 1908 West.djvu (ed. by Alfred S. West) and File:Essays of Francis Bacon 1908 edition.djvu (ed. by Mary Augusta Scott). The second one currently links back to the article here, though unless it's clear that one or the other was used for the text that we have there is no reason to not use the first if you prefer. The next step would be to create an index page here.--Doug.(talk • contribs) 00:55, 12 January 2011 (UTC)

I think you are approaching this from the wrong direction, A combination of these approaches will be counter productive, and match and split is only going to make the situation more confusing. If you decide to to take one of these approaches I will be happy to show how, I would like to see this text at site. cygnis insignis 10:21, 21 January 2011 (UTC)
 * If you want the Bartelby text then add that, if you want to add the annotations then make sure they are public domain.
 * If you want to add your own annotations you need to provide that in a separate version, the priority is to get the published text.
 * If you want one of the editions in the djvu files above, then start correcting the pages and use their annotations.

 * Cygnis has a point here, I didn't realize the text that's up is yet another annotation and references the P.F. COLLIER & SON COMPANY (1909-1914) Charles W. Eliot Harvard Classics edition published by P.F. Collier & Son Company in 1909. . Sorry if I put you on the wrong track when I suggested Match and Split was the answer.  I was focused on getting a basic supporting text for the Essays themselves.  If the Collier & Son text is available online that would be preferable to be matched to the existing text though the main body of the work other than the footnotes, should be virtually identical.  The text can still be botted in but match and split may not have been the best answer (though we could easily undo the mainspace portion and have the same effect.  If you really want to work with the West edition (which has a lot of advantages, including more annotations), then we should probably have both.  Cyg is also right, you should make sure any annotations are in the "original" (the Public Domain text you're working from - in this case either West or Collier & Son) or are otherwise consistent with the spirit of our annotation guideline.  If you plan to annotate the work it belongs at WikiBooks.

 * Here it is if you really want it The_Harvard_Classics_Vol._3.djvu but it's several books by Bacon, Milton, and Browne all in one volume. Better to use West I think for your purpose, but your call. --Doug.(talk • contribs) 17:41, 21 January 2011 (UTC)

 * I have organized Index:The_Harvard_Classics_Vol._3.djvu so that you can tell where Bacon's Essays start and I got a bot to move Essays (Francis Bacon) to Essays, civil and moral (Harvard Classics) (the former now being a versions page as you can see here. You may also want to take a look at how I've set up The Harvard Classics Vol. 3, they could all use some prettying up and the latter should eventually be the first few pages of the book with the table of contents from the book, which could be transcluded from the first page of Essays, civil and moral - or vice versa.  NOW you can match and split the text against this djvu and import the remaining text so that we have it all (but stick to Eliot's edition or put it somewhere else).  There's no problem putting the bare text into Eliot's edition, some day you or someone else will proofread it.  At some point I need to go through and tag the old subpages for deletion.--Doug.(talk • contribs) 22:07, 6 February 2011 (UTC)

title: User talk:TeleComNasSprVen


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Author:Douglas Ross Hyde

Works

 * A plea for the Irish language, Dublin University Review August 1886
 * Literary history of Ireland, (1899)
 * Beside the Fire: a collection of Irish Gaelic folk stories (1890)
 * "The Necessity for the De-Anglicising the Irish Nation" manifesto presented to National Literary Society in Dublin (1892)
 * Abhráin diadha Chúige Connacht or Religious songs of Connacht (1906)
 * Story of early Gaelic literature, New Irish Library (1905)
 * Fairy and folk tales of the Irish peasantry, W. B. Yeats (1888)

title: Author:Douglas Ross Hyde


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 * Longevity — Modifications not necessarily simultaneous — Modifications apparently of no direct service — Progressive development — Characters of small functional importance, the most constant — Supposed incompetence of natural selection to account for the incipient stages of useful structures — Causes which interfere with the acquisition through natural selection of useful structures — Gradations of structure with changed functions — Widely different organs in members of the same class, developed from one and the same source — Reasons for disbelieving in great and abrupt modifications.

devote this chapter to the consideration of various miscellaneous objections which have been advanced against my views, as some of the previous discussions may thus be made clearer; but it would be useless to discuss all of them, as many have been made by writers who have not taken the trouble to understand the subject. Thus a distinguished German naturalist has asserted that the weakest part of my theory is, that I consider all organic beings as imperfect: what I have really said is, that all are not as perfect as they might have been in relation to their conditions; and this is shown to be the case by so many native forms in many quarters of the world having yielded their places to intruding foreigners. Nor can organic beings, even if they were at any one time perfectly adapted to their conditions of life, have remained so, when their conditions changed, unless they themselves likewise changed; and no one will dispute that the physical conditions of each country, as well as the number and kinds of its inhabitants, have undergone many mutations.

A critic has lately insisted, with some parade of mathematical accuracy, that longevity is a great advantage to all species, so that he who believes in natural selection "must arrange his genealogical tree" in such a manner that all the descendants have longer lives than their progenitors! Cannot our critics conceive that a biennial plant or one of the lower animals might range into a cold climate and perish there every winter; and yet, owing to advantages

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 gained through natural selection, survive from year to year by means of its seeds or ova? Mr. E. Ray Lankester has recently discussed this subject, and he concludes, as far as its extreme complexity allows him to form a judgment, that longevity is generally related to the standard of each species in the scale of organisation, as well as to the amount of expenditure in reproduction and in general activity. And these conditions have, it is probable, been largely determined through natural selection.

It has been argued that, as none of the animals and plants of Egypt, of which we know anything, have changed during the last three or four thousand years, so probably have none in any part of the world. But, as Mr. G. H. Lewes has remarked, this line of argument proves too much, for the ancient domestic races figured on the Egyptian monuments, or embalmed, are closely similar or even identical with those now living; yet all naturalists admit that such races have been produced through the modification of their original types. The many animals which have remained unchanged since the commencement of the glacial period, would have been an incomparably stronger case, for these have been exposed to great changes of climate and have migrated over great distances; whereas, in Egypt, during the last several thousand years, the conditions of life, as far as we know, have remained absolutely uniform. The fact of little or no modification having been effected since the glacial period, would have been of some avail against those who believe in an innate and necessary law of development, but is powerless against the doctrine of natural selection or the survival of the fittest, which implies that when variations or individual differences of a beneficial nature happen to arise, these will be preserved; but this will be effected only under certain favourable circumstances.

The celebrated palaeontologist, Bronn, at the close of his German translation of this work, asks how, on the principle of natural selection, can a variety live side by side with the parent species? If both have become fitted for slightly different habits of life or conditions, they might live together; and if we lay on one side polymorphic species, in which the variability seems to be of a peculiar nature, and all mere temporary variations, such as size, albinism, &c., the more permanent varieties are generally found, as far as I can discover, inhabiting distinct stations,— such as high land or low land, dry or moist districts. Moreover, in the case of animals which wander much about and cross freely, their varieties seem to be generally confined to distinct regions.

Bronn also insists that distinct species never differ from each other

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 in single characters, but in many parts; and he asks, how it always comes that many parts of the organisation should have been modified at the same time through variation and natural selection? But there is no necessity for supposing that all the parts of any being have been simultaneously modified. The most striking modifications, excellently adapted for some purpose, might, as was formerly remarked, be acquired by successive variations, if slight, first in one part and then in another; and as they would be transmitted all together, they would appear to us as if they had been simultaneously developed. The best answer, however, to the above objection is afforded by those domestic races which have been modified, chiefly through man's power of selection, for some special purpose. Look at the race and dray-horse, or at the greyhound and mastiff. Their whole frames, and even their mental characteristics, have been modified; but if we could trace each step in the history of their transformation,— and the latter steps can be traced,— we should not see great and simultaneous changes, but first one part and then another slightly modified and improved. Even when selection has been applied by man to some one character alone,— of which our cultivated plants offer the best instances,— it will invariably be found that although this one part, whether it be the flower, fruit, or leaves, has been greatly changed, almost all the other parts have been slightly modified. This may be attributed partly to the principle of correlated growth, and partly to so-called spontaneous variation.

A much more serious objection has been urged by Bronn, and recently by Broca, namely, that many characters appear to be of no service whatever to their possessors, and therefore cannot have been influenced through natural selection. Bronn adduces the length of the ears and tails in the different species of hares and mice,— the complex folds of enamel in the teeth of many animals, and a multitude of analogous cases. With respect to plants, this subject has been discussed by Nägeli in an admirable essay. He admits that natural selection has effected much, but he insists that the families of plants differ chiefly from each other in morphological characters, which appear to be quite unimportant for the welfare of the species. He consequently believes in an innate tendency towards progressive and more perfect development. He specifies the arrangement of the cells in the tissues, and of the leaves on the axis, as cases in which natural selection could not have acted. To these may be added the numerical divisions in the parts of the flower, the position of the ovules, the shape of the seed, when not of any use for dissemination, &c.

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