text:
Richmond Fredericksburg and Potomac Railroad Company v. Louisa Railroad Company/Dissent Curtis

Mr. Justice CURTIS.

I have been unable to agree with the majority of the court in this case, and some of the principles on which a decision depends are of so much importance, as affecting legislation, that I think it proper to state my opinion and the reasons on which it rests.

That the 38th section of the complainants' charter contains a contract between the corporation and the State, the obligation of which the latter can not impair by any law, must, I think, be admitted. Whether 'An act for the extension of the Louisa Railroad to the dock in the city of Richmond,' does impair that obligation, depends upon the interpretation which the contract requires; and, inasmuch as it is the duty of this court to determine whether the obligation of the contract has been impaired, it is necessarily its duty to decide, what is the true interpretation of the contract.

The 38th section, with its preamble, are as follows:

'And whereas the railroad authorized by this act will form a part of the main northern and southern route between the city of Richmond and the city of Washington, and the privilege of transporting passengers on the same, and receiving the passage-money, will, it is believed, be a strong inducement to individuals to subscribe for stock in the company, and the General Assembly considers it just and reasonable that those who embark in the enterprise should not be hereafter deprived of that which forms a chief inducement to the undertaking,

'38. Be it therefore enacted and declared, and the General Assembly pledges itself to the said company, That in the event of the completion of the said railroad from the city of Richmond to the town of Fredericksburg, within the time limited by this act, the General Assembly will not, for the period of thirty years from the completion of the said railroad, allow any other railroad to be constructed between the city of Richmond and the city of Washington, or for any portion of the said distance, the probable effect of which would be to diminish the number of passengers travelling between the one city and the other, upon the railroad authorized by this act, or to compel the company, in order to retain such passengers, to reduce the passage-money: Provided, however, That nothing herein contained shall be so construed as to prevent the legislature, at any time hereafter, from authorizing the construction of a railroad between the city of Richmond and the towns of Tappahannock or Urbana, or to any intermediate points between the said city of Richmond and the said towns; And provided, also, That nothing herein contained shall be construed to prevent the General Assembly from chartering any other company or companies to construct a railroad from Fredericksburg to the city of Washington.'

The preamble in effect declares what general object the parties have in view, and the section makes known to what extent and by what means that subject is to be accomplished. That general object is to secure the corporation from being deprived of the passenger travel on its railroad; and the means of prevention are, to prohibit for thirty years the existence of any other road, the probable effect of which would be to diminish the number of passengers travelling between Washington and Richmond upon the railroad of the complainants.

The first question is, whether what is called the extension of the Louisa road, is a railroad, the probable effect of which would be to diminish those passengers; and this depends on what passengers are referred to in the contract.

It is maintained by the appellees that only passengers travelling the distance between Washington and Richmond are intended; but this is not consistent either with the substantial object of the parties, or with the language they have employed to make known their agreement. 'The privilege of transporting passengers on the same and receiving the passage-money,' and protection from being 'deprived of that which forms the chief inducement of the undertaking,' would be but imperfectly secured, if limited to one particular class of passengers only. Such a limitation inconsistent with the apparent object of the parties is not to be engrafted on the contract unless clearly expressed. It is said that the words 'passengers travelling between the one city and the other,' contain this limitation, their meaning being passengers travelling from one city to the other. The word 'between' in this clause admits of that interpretation, but does not require it. That word may also designate any part of the intermediate space, as well as the whole. It may be correctly said that the complainants' railroad is between Richmond and Washington, though it does not traverse the whole distance from one of those cities to the other, and the words which immediately follow, certainly tend strongly to show that it was in this last and more comprehensive sense the word 'between' was here used. The whole clause is, 'passengers travelling between one city and the other, upon the railroad authorized by this act.' But the railroad there referred to, upon the completion of which this contract was to take effect, was only to be from Richmond to Fredericksburg, so that, strictly speaking, passengers could not travel to or from the city of Washington upon the railroad authorized by the act; they could thus pass over only a part of the intermediate space between Washington and Richmond. This clause therefore does not control the evident general intent of the parties to protect the passenger travel, but rather tends to make that general intent more clear. The question being whether the travellers referred to are only those going the whole distance, and one part of the descriptive words, designating where they are travelling, being ambiguous, and the other part which points out how they are travelling, being clear, the result of the whole is to include all who travel in the intermediate space between the two cities, upon the complainants' railroad. And this construction is still further strengthened by the stipulation that the State will not authorize another road 'to be constructed between the city of Washington and the city of Richmond, or for any portion of the said distance;' for if the object of parties was merely to protect the enjoyment by the complainants of the tolls derivable from passengers going from one of those cities to the other, it is highly improbable that the State would have agreed to this broad restriction. Construing the preamble and the section together, I think it was the intention of the parties to secure to the complainants, for the period of thirty years, the exclusive enjoyment of all the railroad passenger travel over every part of the line between Washington and Richmond; and that the mode of security agreed on by the parties was, that the State should not authorize the construction of any such railroad as might probably interfere with that exclusive enjoyment.

In coming to this conclusion I have not overlooked the rule, that grants from States to corporations of such exclusive privileges, are to be construed most strongly against the grantees. But this rule, like its converse, fortius contr a proferentem, which applies to private grants, is the last to be resorted to, and never to be relied upon, but when all other rules of exposition fail. Bac. Max. reg. 3; 2 Bl. Com. 380; Love v. Pares, 13 East, 86. In Hindekoper's Lessee v. Douglass, 3 Cranch 70, Chief Justice Marshall says: 'This is a contract; and although a State is a party it ought to be construed according to those well established principles which regulate contracts generally.' A grant such as is now in question, in consideration of the grantees risking their capital in an untried enterprise, which, if successful will greatly promote the public good, in no proper sense confers a monopoly. It enables the grantees to enjoy, for a limited time, what they may justly be considered as creating. It is in substance and reality, as well as in legal effect, a contract, and in my judgment it is the duty of the court to give it such a construction as will carry it into full effect; imposing on the public no restriction, and no burden, not stipulated for, and depriving the company of no advantage, which the contract, fairly construed, gives. This is required by good faith; and to its demands all technical rules, designed to help the mind to correct conclusions, must yield. Having come to the conclusion that the intention of the parties to this contract was to secure to the complainants exclusive enjoyment of all railroad passenger travel over every part of the distance between Richmond and Washington for thirty years, and that the means adopted to effect this object was the promise of the State to authorize the construction of no railroad which might probably interfere with that exclusive enjoyment, the next inquiry is, whether the extension of the Louisa Railroad to the dock in the city of Richmond would probably have that effect. This act enables the Louisa Railroad Company to extend their road, from its junction with the complainants' road, as a point about twenty-four miles from Richmond, to that city, and thus to make another railroad between Richmond and that point on the complainants' road.

That this authority comes within that part of the restrictive stipulation, which describes the route over which another railroad is not to be built, is clear; for it does authorize 'another railroad,' 'for a portion of the distance' 'between the cities of Richmond and Washington.' But it is said that it does not come within the residue of the restrictive clause, because its probable effect will not be to diminish that passenger travel designed to be secured to the complainants. To this I cannot assent. The Louisa Company, by their original charter, are expressly authorized to carry passengers on their railroad, and when they are empowered by the act now in question to extend their road, it is a necessary implication that the extension is for the same uses, and subject to the same rights, and powers, and privileges as the original road, to which it is to be annexed. And accordingly we find, that by the 5th section of this act, the legislature has prescribed a limit of tolls, as well for passengers as for merchandise, coming from or going to another railroad and passing over the whole length of the Louisa road and each part of it, including the extension.

Passengers using the complainants' road between Richmond and the junction, may be divided into three classes. Those who travel the whole, or a part of the distance between Richmond and the junction, and do not go beyond the junction; those who do go to, or come from points beyond the junction on the complainants' road; and those who travel on the Louisa road, beyond the junction, going west, or coming east. The extension of the Louisa road is adapted to carry all these, and by the act complained of, the Louisa Company is authorized to construct a road to carry them. It may certainly be assumed, that a corporation, created to conduct a particular business for profit, will do all such business as it is its clear interest, and within its authority to do, and which it was created for the very purpose of doing. And if so, the effect of this extension must be, to transport thereon a part of all these classes of passengers, and thus to diminish the number of those same classes of passengers, who, at the time of the passage of the act in question, used the complainants' road.

As to those passengers who do not use the Louisa road beyond the junction, I am at a loss to perceive any reason why they are not within the description of passenger travel designed to be secured to the complainants; and if they are excluded therefrom, I know of none who would be included, unless upon the interpretation already considered and rejected, that the contract was designed to embrace only passengers travelling the entire distance between Richmond and Washington. It is not absolutely necessary to go any further to find that this extension act impairs the obligation of the contract, by authorizing another road to be built, the probable effect of which would be, to diminish the number of passengers travelling on the complainants' road between the junction and Richmond. But it is clear to my mind, that the third class of passengers using the Louisa road, are as much within this contract as any others. To explain my views on this point, it is necessary to refer to a few dates.

The complainants were incorporated in February, 1834, and their act of incorporation contained the compact now relied on. Their road was completed and opened for use in January, 1837. In February, 1836, an act was passed incorporating the stockholders of the Louisa Railroad Company. In December, 1838, the Louisa road was opened for use to the Louisa court-house, and from that time to March, 1848, the passengers using the Louisa road, going to or coming from Richmond, and points between that city and the junction, passed over the road of the complainants. In March, 1848, the complainants and the Louisa Company having differed concerning the tolls to be charged by the former on passengers and merchandise going to or coming from the Louisa road, the legislature passed the 'Act for the extension of the Louisa Railroad,' which contains the following section:-'Be it further enacted, that in case the Richmond, Fredericksburg, and Potomac Railroad Company shall, at the next annual meeting of the stockholders, stipulate and agree, from and after the expiration of the present contract with the Louisa Railroad Company, to carry all passengers and freight coming from the Louisa Railroad from the junction to the city of Richmond, at the same rate per mile as may at the same time be charged by the Louisa Railroad Company on the same passengers and freight; and shall also agree to carry all passengers and freight entered at the city of Richmond for any point on the Louisa Railroad, at the same rate per mile as is charged at the time for the same, by the Louisa Railroad Company; and shall also agree to submit to the umpirage of some third person or persons, to be chosen by the said companies, the compensation to the Richmond, Fredericksburg, and Potomac Railroad Company for collecting at the depots in Richmond the dues of the Louisa Railroad Company, and any other matters of controversy which may arise between the said companies owing to the connection between them, then this act to be void, or else to remain in full force.' It will thus be seen that the passenger travel, which it is the object of this act to take away from the complainants' road, had been de facto a part of its passenger travel between Richmond and the junction for about ten years. It is maintained that as the Louisa Railroad, from the junction westward, was the cause of the existence of this travel upon the complainant's road, between Richmond and the junction, the Louisa corporation might be empowered to construct another road between those points for the purpose of doing that business. In other words, that passenger travel actually existing on the complainant's road, may properly be diminished by the construction of another road for a part of the distance between Richmond and Washington, provided it be done by a party who at some prior time was instrumental in increasing the passenger travel; that we are to inquire whether by this new and competing road any more is to be taken away than was brought by the corporation which builds it, and if not, then the competing road does not diminish the number of passengers, travelling on the complainants' road, within the fair meaning of this contract. I can not give to this contract such a construction. It seems to me to be at variance with its express terms and with what must have been within the contemplation of the parties when it was entered into. The promise not to authorize any other railroad between Washington and Richmond, or for any part of that distance, the probable effect of which would be to diminish the number of passengers travelling on the complainants' railroad is absolute and unqualified. It contains no reservation in favor of parties who have been instrumental in bringing that travel to the complainants' road. It extends over the period of thirty years, and applies to the travel actually existing thereon during every part of that period, to whatever causes its existence there may be attributable. It must have been contemplated by the parties that the number of travellers on the complainants' road would increase during the long period of thirty years; it must have been known to them that this increase would be likely to arise, among other causes, from the increased number of passengers coming laterally to the line, in consequence of the construction of other railroads, as well as from increased facilities of access by other means. They enter into a contract which by its terms protects this increased travel during the whole period, and by whatever causes produced, just as much as it protects the travel existing during the first month after the opening of the road. How then can we engraft upon the contract an exception not found there, and say, that when it speaks generally of passengers travelling upon the road, it does not mean passengers which another railroad corporation has brought there? I am unable to see why not, as much as if a steamboat or stage company had brought them. In my opinion this class of passengers on the complainants' road, are as truly within the contract as any others; and a railroad, the object of which is to take away this class of passengers from the complainants' road, is one which the State has promised it would not authorize to be built.

Parties may agree, not only on the substantial rights to be protected, but on the particular mode of protecting them; and if they do agree on a particular mode, it becomes a part of their contract, which each party have a just right to have executed. In this compact the parties have agreed on the mode of protection. It is that the State will not authorize to be built any other railroad, which would probably have the effect to diminish the number of passengers on the complainants' road. It is the right to construct, and not the right to use which the contract restrains. To say that the State may properly authorize a road to be built, the purpose of which is to carry passengers, and thus diminish the number of passengers on the complainants' road, but that the road thus authorized must not be used to the injury of the complainants' rights, is to strike out of the contract the stipulation that such a road should not be authorized to be built. The power of the State to enable a corporation to build another road to carry merchandise only, seems to me to have nothing to do with this question. When the legislature shall adjudge that the public convenience requires another railroad there, to carry merchandise only, and that therefore the power of eminent domain may be exercised to build it, and when a company is found ready to accept such a charter, and risk their funds in its construction, then a case will arise under the power of the legislature to authorize a road for the transportion of merchandise only. But in the law now in question the legislature has not so adjudged; no such charter has been granted, or accepted, and no such road built; but one which the State is by its own promise restrained from authorizing. It seems quite aside from the true inquiry, therefore, to urge that the State might have empowered a company to make a railroad on which to transport merchandise only; for it has not done so.

It has been suggested by one of the defendants' counsel, that though the power of the legislature to enter into a compact for some exclusive privileges is not denied, yet that the legislature had not power to grant such privileges as are here claimed by the complainants, and therefore the State is not bound thereby. This is rested not upon any express restriction on the powers of the legislature, contained in the Constitution of Virginia, but upon limitations resulting by necessary implication from the nature of the delegated power confided by the people of that State to their government. But if, as must be, and is admitted, it is one of the powers incident to a sovereign State to make grants of rights, corporeal and incorporeal, for the promotion of the public good, it necessarily follows that the legislature must judge how extensive the public good requires those rights to be. Whether the State shall grant one acre of land, or one thousand acres; whether it shall stipulate for the enjoyment of an incorporeal right, in fee, for life or years; whether that incorporeal right shall extend to one, or more subjects; and what shall be deemed a fit consideration for the grant in either case, is intrusted to the discretion of the legislative power, when that discretion is not re-restrained by the constitution under which it acts. This has been the interpretation by all courts, and the practice under all constitutions in the country so far as I know, and it seems to me to be correct. See Piscataqua Bridge, v. New Hamp. Bridge, 7 N. H. Rep. 35, and cases there cited; Enfield Bridge, v. The Hart. & N. H. R. R. Co., 17 Conn. R. 40; Washington Bridge v. State, 18 Conn. R. 53.

It remains to consider whether this court has jurisdiction to reverse the decision of the State court.

The Court of Appeals having refused to entertain an appeal, the superior Court of Chancery of the Richmond Circuit, was the highest court of the State, to which the complainants could carry the case; and it is to the decision of that court we must look. The questions are whether that court erroneously decided against a right claimed by the complainants under the Constitution of the United States, and whether the bill was dismissed by reason of that erroneous decision. The points decided are set out with great clearness upon the face of the decree. Their substance is, that the construction of this extension road is lawful, the legislature having power to authorize it; that it may lawfully be used for the transportation of passengers, who, but for the existence of the Louisa road would never have come on to the line of the Fredericksburg road; that whether the Louisa Company will use the extension for the transportation of any other passengers, and thus infringe complainants' rights, does not appear; when the supposed case shall occur, it may be proper to interfere by injunction, if, upon the facts of that case as they shall appear, there is not a plain, adequate, and complete remedy at law.

It is clear, then, that the Chancellor decided, against the right claimed by the complainants, under the Constitution, that this extension should not be constructed. In my opinion, this decision was erroneous. It is clear, also, that he decided against their right, under the Constitution, to be protected in the enjoyment of the passenger travel coming upon their road, in consequence of the existence of the Louisa road. I think this was also erroneous. By reason of these decisions the bill was dismissed. They left nothing but a case of contingent damage, which would not happen at all, if the Louisa Company should carry only the passengers coming upon the line of the complainants' railroad by reason of the existence of the Louisa road; there was no certainty to what extent, or under which circumstances, or whether at all, the complainants' rights would be infringed.

Upon these views of the contract of the State, and the rights of the complainants, it necessarily followed that the bill was to be dismissed; for equity would not interfere in a case where the defendants had valuable rights and powers, which they might not exceed, and which they ought not to be restrained from exercising. But on the other hand if the defendants had no such rights, or powers; if they were claiming them and about to exercise them, in a manner certain to inflict great and continuing injury on the complainants, the extent of which injury a court of law could not fully ascertain, and could redress, even partially, only by a great multiplicity of suits, then no court of chancery would hesitate to grant relief. It is certain therefore that this bill was dismissed, by reason of, what I consider, the erroneous views taken by the chancellor, of the rights claimed by the complainant under the Constitution of the United States.

It has been argued that by the local law of Virginia, contained in the general railroad act of that State, the chancellor had not jurisdiction to grant an injunction to restrain the construction of the extension road. If the chancellor had so decided and dismissed the bill, for that reason this court could not reverse that decision. But he did not so decide; and I cannot infer that he would so decide if this case were to be remanded, because I am of opinion that the statute relied on has no application to this case.

My opinion is that the decree of the Superior Court of Chancery should be reversed and the case remanded, with such directions as would secure to the complainants the remedy to which they are entitled, to prevent the violation of rights, secured to them by the Constitution of the United States.

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


text:
Williamson v. Barrett/Dissent Catron

Mr. Justice CATRON.

This action is one of owners against owners of respective steamboats. It is an action on the case, in which no vindictive damages can be inflicted on the defendants, as they committed no actual trespass; and therefore, in assessing damages against them, moderation must be observed.

In the next place, the collision occurred on the Ohio River, and the rules of law applicable to the controversy must accommodate themselves to that navigation.

The injured boat was sunk, and the plaintiffs declared for a total loss; but it came out in evidence, that she was raised and repaired, and again commenced running the river. On this state of facts the jury was charged: 1st. That damages should be given for raising the boat: 2d. For repairing her: and 3d. Also damages in addition, 'for her use, during the time necessary to make the repairs and fit her for business.'

The expression 'for her use,' must mean either the clear profits of her probable earnings; or, how much she could have been hired for to others during the time of her detention. Both propositions come to the same result, to wit: how much clear gains the owners of the Major Barbour, could have probably made by their boat, had she not been injured, during the time she was detained in consequence of being injured. This probable gain, the jury was instructed to estimate as a positive loss, and to charge the defendants with it.

The suit is merely for loss of the boat, and has no reference to the cargo. It does not appear that she had either cargo, or passengers; nor does the evidence show in what trade she was engaged.

In cases of marine torts, no damages can be allowed for loss of a market; nor for the probable profits of a voyage. The rule being too uncertain in its nature to entitle it to judicial sanction. Such has been the settled doctrine of this court for more than thirty years.

In the case of the Amiable Nancy, 3 Wheat. 560, when discussing the propriety of allowing for probable loss of profits on a voyage that was broken up by illegal conduct of the respondents' agents, this court declared the general and settled rule to be, that the value of the property lost, at the time of the loss; and in case of injury, the diminution in value, by reason of the injury, with interest on such valuation, afforded the true measure for assessing damages: 'This rule,' says the court, 'may not secure a complete indemnity for all possible injuries; but it has certainty, and general applicability to recommend it, and in almost all cases, will give a fair and just recompense.' And in the suit of Smith v. Condry, 1 How. 35, it is declared, that in cases of collision 'the actual damage sustained by the party, at the time and place, of the injury, is the measure of damages.' In that case there was detention as will as here, but it never occurred to any one, that loss of time could be added as an item of damages. In other words, that damages might arise after the injury and be consequent to it; and which might double the amount actually allowed.

The decision found in 3 Wheat. was made in 1818, and I had supposed for many years past, the rule was established, that consequential damages for loss of time, and which damages might continue to accrue, for months after the injury was inflicted, could not be recovered; and that there was no distinction in principle, between the loss of the voyage, and loss of time, consequent on the injury.

The profits claimed and allowed by the Circuit Court, depended on remote, uncertain, and complicated contingencies, to a greater extent, than was the case, in any one instance, in causes coming before this court, where a claim to damages was rejected for uncertainty.

Here, full damages are allowed for raising the boat, and for her repairs. To these allowances no objection is made; it only extends to the additional item for loss of time. That the investigation of this additional charge will greatly increase the stringency, tediousness, and charges of litigation, in collision cases, is manifest; nor should this consideration be overlooked. The expense and harassment of these trials have been great when the old rule was applied; and, the contest, if the rule is extended, must generally double the expense and vexation of a full and fair trial. Nor will it be possible, as it seems to me, for a jury, or for a court (where the proceeding is by libel) to settle contingent profits, on grounds more certain, than probable conjecture. The supposition that the amount of damages can be easily fixed, by proof of what the injured boat could have been hired for on a charter-party, during her detention, will turn out to be a barren theory, as no general practice of chartering steamboats, is known on the western rivers, nor can it ever exist; the nature of the vessels, and the contingencies of navigation being opposed to it. In most cases, the proof will be, that the boat could not have found any one to hire her; and then, the contending parties will be thrown on the contingency, whether she could have earned something, or nothing; little, or much, in the hands of her owner, during the time she was necessarily detained; and this will involve another element of contention of great magnitude; to wit, whether she was repaired in reasonable time. Forasmuch as no necessity will be imposed on the owner to bestow the repairs, as is now the case, he will rarely, if ever, do so; and having the colliding boat and her owners in his power, gross oppression will generally follow, in applying this new and severe measure of damages to western river navigation.

In a majority of cases of collision on the western waters, partial injury, repairing, and detention of the injured boat occur. Contests before the courts have been numerous where the precise question of compensation here claimed was involved, and yet in an experience of twenty-five years, I have never known it raised until now. The bar, the bench, and those engaged in navigation, have acquiesced in the rule, that full damages for the injury at the time and place when it occurred, with legal interest on the amount, was the proper measure; nor do I think it should be disturbed; and that therefore the judgment of the Circuit Court should be reversed, because the jury were improperly instructed, in this particular.

title: Williamson v. Barrett/Dissent Catron


text:
Mitchell v. Harmony/Dissent Daniel

Mr. Justice DANIEL dissented.

In this case I find myself constrained to disagree with the opinion of the court just pronounced. This disagreement is not so much the result of any view taken by me of the testimony in this case, in conflict with that adopted by my brethren; for, with respect to the character of the testimony, were that the subject regularly before us, there perhaps would exist little or no difference of opinion. With some modifications, perhaps unimportant, I might have agreed also to the legal propositions laid down by the court, so far as I have been able to extract them from the charge of the judge. My disagreement with the majority, relates do a great principle lying at the foundation of all legal inquiries into matters of fact; lying indeed at the foundation of civil society itself: the preservation, in its fullest scope and integrity, unaffected, and even unapproached by improper influences, direct or indirect, of the venerable, the sacred, the unappreciable trial by jury. In the remark just made, or in any criticism which may be attempted as to the charge of the judge at circuit, in this case, I would have it understood that there is no officer to whose learning, or to whose integrity of purpose, I would with greater confidence intrust either the rights of the citizen, or the exposition of the law, than I would to the judge whose opinion is before us; but in this instance, it seems to me, that in accordance with a practice which, although it has obtained in some of the courts, is regarded as irregular and mischievous, he has stepped beyond the true limits of the judicial province. Duty demands of me, therefore, however ineffectual the effort, that I should oppose my feeble resistance to the aggression.

I object to the charge of the judge in this case, as I would to every similar charge of a court presiding over a jury trial at common law, because it is not confined to a statement of the points of law raised by the pleadings, and to the competency or relevancy of the testimony offered by either party in reference to those points; but extends to the weight and efficiency of the evidence, all admissible, and in fact admitted, and declares to the jury minutely and emphatically, what that testimony does or does not prove. And now let us examine the language of the charge. It is as follows:

'One ground on which the defence is placed is, that the plaintiff was engaged in an unlawful trade with the public enemy, and that, being engaged in an unlawful trade, his goods were liable to confiscation; and any person, particularly an officer of the army, could seize the same.

This ground, as I understand the evidence, has altogether failed. He was not only not so engaged, but was engaged in trading with that portion of the territory reduced to subjection by our arms, and where his trading with the inhabitants was permitted and encouraged. The army was directed to hold out encouragement to the traders. There is no foundation, therefore, for this branch of the defence. Another ground taken by the defendant, and relied upon, depends upon another principle of public law, viz., the taking possession of the goods at a time and place when it was necessary for the purpose of preventing them from falling into the hands of the enemy. This has been urged as particularly applicable to the plaintiff's goods, some of which consisted of articles which might be used as munitions of war, wagons for transportation, &c.

Taking the whole of the evidence together, and giving full effect to every part of it, we think this branch of the defence has also failed.

No case of peril or danger has been proved which would lay a foundation for taking possession of the goods of the plaintiff at San Elisario, on that ground, either as it respects the state of the country, or the force of the public enemy. On the contrary, it was in the possession of the arms of this government. There was no enemy, no public force at the time in the neighborhood, which put the goods in the danger of being captured. The plaintiff's goods, therefore, stood in the same condition as the goods of any other trader in the country. The testimony does not make out a case of seizure of property justified by the peril of its falling into the enemy's hands. The peril must be immediate and urgent, not contingent or remote; otherwise every citizen's property, particularly on the frontiers, would be liable to be seized or destroyed, as it must always be more or less exposed to capture by the public enemy. The principle itself, if properly applied, of the right to take property to prevent it from falling into the hands of the enemy, is undisputed. But in this case there was no immediate or impending danger, no enemy advancing to put the goods in peril. They were more exposed to marauding parties than to any public force, the danger from which he plaintiff considered himself able to take care of. The next ground of defence, and which constitutes the principal question in the case, and upon which it must probably ultimately turn, is the taking of the goods by the public authorities for public use. I admit the principle of public law; but this rests likewise upon the law of necessity. I have no doubt of the right of a military officer, in a case of extreme necessity, for the safety of the government or of the army, to take private property for the public service.

An army upon its march, in danger from the public enemy, would have a right to seize the property of the citizen, and use it to fortify itself against assault while the danger existed and was impending, and the officer ordering the seizure would not be liable as a trespasser; the owner must look to the Government for indemnity. The safety of the country is paramount, and the rights of the individual must yield in case of extreme necessity. No doubt, upon the testimony, if the enemy had been in force, in the neighborhood of the United States troops, with the disparity which existed at Sacramento, and the same danger for the safety of the troops existed at San Elisario that threatened them there, the commanding officer might, for the safety of this army, seize and use, while the danger continued, the wagons and teams of the plaintiff that could be immediately brought into the service, to meet and overcome the impending danger. An immediate, existing, and overwhelming necessity would justify the seizure of the safety of the army.

Looking, however, at the testimony, it seems to me quite clear that these goods were seized, not on account of any impending danger at the time, or for the purpose of being used against an immediate assault of the enemy, by which the command might be endangered, but that they were seized and taken into the public service for the purpose of co operating with the army in their expedition into the enemy's country, to Chihuahua. The mules, wagons, and goods were taken into the public service for the purpose of strengthening the army, and aiding in the accomplishment of the ulterior object of the expedition, which was the taking of Chihuahua; it was not to repel a threatened assault, or to protect the army from an impending peril; in my judgment, all the evidence taken together does not make out an immediate peril or urgent necessity existing at the time of seizure which would justify the officer in taking private property and impressing it into the public service; the evidence does not bring the case within the principle of extreme necessity; it does not make out such a case, or one coming within the principle; there is not only no evidence of an impending peril to be resisted by the public force, but the goods were taken for a different purpose, viz., for the purpose of cooperating with the army against Chihuahua; the army had to march over two hundred miles before it reached or found the enemy; the danger, if any, lay in the pursuit, not in remaining at San Elisario or returning to Santa F e; there had been a sudden insurrection against the authority of the government in that neighborhood, but it was immediately suppressed.

As to the remaining grounds of defence, the liability of the defendant for taking the goods and appropriating them to the public service accrued at the time of the seizure; if it was an unlawful taking, the liability immediately attached, and the question was whether that liability had been discharged or released by any subsequent act of the plaintiff; Colonel Mitchell, who executed the order, was not alone responsible, Colonel Doniphan, who gave the order, was also liable; they were jointly and severally responsible; then, was any act done by the plaintiff which waived the liability, or by which he resumed the ownership and possession of the goods? Certainly the abandonment of the goods to Colonel Doniphan cannot be regarded as an act of resumption of ownership; on the contrary, it was consistent with the assertion of his liability; there had been a negotiation between them; Colonel Doniphan advised him to sell the goods at Chihuahua and look to the government for indemnity, and, in pursuance of this, measures were taken for their protection and safe-keeping. I doubt if there be any evidence showing an intent on the part of the plaintiff to resume ownership over the goods as his private property after they had been seized by the army, or any act done by him that would, when properly viewed, lead to that result.'

The bill of exceptions concludes as follows:

'After the judge expressed his views of the case as above stated, the counsel on both sides declined going to the jury.

The presiding judge accordingly charged the jury that the law was as had been stated by him, and that if they agreed with him in his view of the facts, that they would find for the plaintiff, otherwise for the defendant.

The counsel for the defendant did then and there except to each of the four propositions mentioned in the charge above stated.

The jury, without leaving their seats, returned a verdict for the plaintiff for $90,806.44.

And because none of the said exceptions, so offered and made to the opinions and decisions of the said associate justice, do appear upon the record of the said trial; therefore, on the prayer of the said defendant, by his said counsel, the said associate justice hath to the bill of exceptions set his seal, April term, one thousand eight hundred and fifty. S. NELSON. [SEAL]'

The record, above cited, informs us that after the judge had expressed his views of the case as above stated, the counsel on both sides declined going to the jury. And surely, after such an expression, no other result could well have been anticipated. In the first place, the counsel for the plaintiff could not have made to the jury so authoritative an argument in behalf of his client; and in the next place the counsel for the defendant must have been a rash man could he have attempted to throw his individual weight (whatever might have been his ability) in opposition to this authoritative declaration and influence of the court. Nay, it may be insisted, that if the court, in passing upon the weight of the evidence, was acting within its legitimate sphere, the counsel would have been justly obnoxious to the imputation of indecorum, if not of contempt, in assailing before the jury the judge's decision; for the respective provinces of the court, the counsel, and the jury, are separate, distinct, and well defined, and neither should be subject to invasion by the other.

But after the counsel had been thus silenced, and the weight of the evidence fully and minutely pronounced upon by the court, it is insisted, that the alleged irregularity was entirely cured, by a declaration from the court to the jury, 'that if they agreed with him in his view of the facts, they should find for the plaintiff, otherwise they might find for the defendant.' But the natural and obvious inquiry here is, what the judge's view of the facts had to do with this matter. It was the jury who were to find the facts for the judge, and not the judge who was to find the facts for the jury; and if the verdict is either formally, or in effect, the verdict of the judge, it is neither according to truth nor common sense, the verdict of the jury; and these triers of fact had better be dispensed with, as an useless, and indeed an expensive and cumbersome formula in courts of law, than be preserved as false indicia of what they in reality do not show. Moreover, this determination of facts by the court does not place the parties upon fair and equal grounds of contest before the minds of the jury; it is placing the weight of the court, which must always be powerfully felt, on the side of one of the parties, and causing the scale necessarily to preponderate by throwing the sword, which, under such circumstances, can hardly be called the sword of justice, into one of the scales in which the rights of the parties are hanging.

The practice of passing upon the weight of the evidence and of pronouncing from the bench what that evidence does or does not prove, accords neither with the nature and objects of jury trial, as indicated by its very name, nor as affirmed by the fathers of the law who have defined this institution and proclaimed it to be the ark of safety for life, liberty, and property. Thus it is called the trial per pais, or by the country, to distinguish it as a determination of the rights of the subject or citizen by his fellow subjects or citizens, from a determination thereon by the action of mere officials or creatures of the government. And with respect to the peculiar intent and effects of this tribunal of the people we read thus: Justice Blackstone, speaking of this institution, says: 'The trial by jury has ever been, and, I trust, ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected, either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.' Again he says: 'Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our property, is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince, or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is wisely ordered, therefore, that the principles and axioms of law, which are general propositions flowing from abstracted reason, and not accommodated to times or men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of facts pre established. But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in, either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder.' And again: 'Every new tribunal erected for the decision of facts without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, or judges of a court of conscience, or any other standing magistracy,) is a step towards establishing aristocracy, the most oppressive of absolute governments. It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain, to the utmost of his power, this valuable constitution in all its rights; to restore it to its ancient dignity if at all impaired by the different value of property, or otherwise deviated from its first institution; and above all to guard it against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty.'

With regard to the legitimate and proper mode of operation, and effect of the trial by jury, the language of Lord Coke should ever be kept in mind, as furnishing the true and only true standard by which to measure this valuable institution. After giving his derivation of the terms verdict and judgment, this great common lawyer proceeds, {{{{'}}Et sicut ad quaestionem juris non respondent juratores sed judices; sic ad quaestionem facti, non respondent judices sed juratores.{{'}} For jurors are to try the fact, and the judges ought to judge according to the law that ariseth upon the fact, for ex facto jus oritur. The manner of stating the above propositions by this great lawyer and commentator is worthy of particular attention, as defining and illustrating with clearness and precision, the powers and duties of the court and the jury. He has not simply said, ad quaestionem juris respondent judices, nor in like manner ad quaestionem facti, respondent juratores, but he has placed them in a striking opposition and contrast, and drawn a well-defined limit around the functions of both the court and the jury, and informed them, in terms too unequivocal for misapprehension, that the limit, thus prescribed, neither has the power to transcend; has declared to each what it shall not do. Thus, literally translated, his annunciation is 'And as with respect to the questions of law, the jury must not respond, but only the judges; so, or in like manner, or under like restriction, the judges must not respond to questions of fact, but only the jury.' There can be no escape from the force of the positions thus laid down by Lord Coke, by the argument that the jury are not absolutely bound by the opinion pronounced by the court upon the weight of the evidence. The proper inquiry here is, not as to the absolute and binding authority of the court's opinion upon the weight of evidence, but that inquiry is, what are the legitimate and appropriate functions of the court and the jury; whether the former, in pronouncing upon the weight of the evidence, can, within any rational sense, be responding only to questions of law, or whether it is not controlling the free action of the jury by the indirect exertion of a power which all are obliged to concede that it does not legitimately possess; the power of responding to the facts of the case. This is one of the mischievous consequences against which we are assured by Justice Blackstone, that the trial by jury was designed to guard, when he remarks that, 'in settling and adjusting a question of fact when intrusted to any single magistrate, partiality and injustice have an ample field to range in, either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder.' And if this power of interpretation or of weighing the evidence cannot safely be deposited within the regular commission of the judge, much less should an attempt to wield that power be tolerated, when confessedly beyond his commission. The objection here urged to the interposition of the court as to the weight of evidence, is by no means weakened by the excuse or explanation that such declaration by the court is not binding, but is given in the way of advice to the jury; the essence of the objection is perceived in the control and influence which an interposition by court is almost certain to produce upon the otherwise free and unembarrassed action of the jury, and the restraint it imposes upon the views and efforts of the advocate, who, in a great majority of instances, will hardly venture to throw himself openly into a conflict with the court. And again the maxim which declares that ad quaestionem facti non respondent judices, would seem to forbid this advice altogether, or to render it officious or irregular at least. The court can exercise a legitimate and effectual control over the verdict of juries by the award of new trials, and should be restricted to this regular exertion of its acknowledged power. Let us test this interposition by the court, by comparing it with a similar irregularity on the part of the jury. {{'}}Ad quaestionem juris non respondent juratores sed judices,{{'}} says the maxim. Now, suppose the jury sworn in a cause should declare to the court what evidence was competent or relevant to the issues they were to try, and what, in their view, should be the law governing the contest between the parties. Would not such a proceeding be regarded as extremely irregular and wholly unjustifiable? And why would it be so regarded? Simply because in so acting the jury would transcend the province assigned them by their duty; because they would not be conforming to the maxim ad quaestionem legis non respondent juratores sed judices. And yet, perhaps, there would be greater color for this proceeding than can be found to excuse the interference by the court in questions of fact; for it is undeniable that from the earliest periods of the practice of jury trials, the jury, of right, could find a general verdict, thereby constituting themselves judges both of law and fact.

In accordance with the maxim quoted from Lord Coke, may be cited other authorities of great weight. Thus, in the case of Rex v. Poole, to be found in Cases in the King's Bench, in the time of Lord Hardwicke, it is said by Hardwicke, C. J., that 'it is of the greatest consequence to the law of England, and to the subject, that the powers of the judge and the jury be kept distinct; that the judge determine the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England.' So likewise in Foster, p. 256, it is said, that 'the construction of the law, upon the facts found by the jury, is in all cases undoubtedly the proper province of the court.' It has been said, that the course pursued by the judge in this case is in conformity with the practice of the courts of England, and in the majority of the States of this Union. For the establishment of the position assumed, either with regard to the English courts, or with respect to the tribunals of the several States, no authorities have been cited; but, even if this position should be conceded, it is not the less clear that the rule it is invoked to sustain is a flagrant departure from the great principle so emphatically asserted by the fathers of the law, and should not the less be viewed and shunned as an abuse rather than an example worthy of imitation. In what number of States of this confederacy such a practice (such an abuse, as I would term it,) may prevail has not been shown; certain it is, that in many of the Southern States it does not obtain, and would not be tolerated. It has also been said, that the right of the judge to instruct the jury upon the weight of testimony has been ruled as the established doctrine of this court. If this be so, it is a revelation which the friends of jury trial, in its full integrity and independence, will grieve to learn, and will be disposed to regard as a demolition by this court of that sacred ark of civil liberty, for which, by the greatest services it may render, it can hardly ever be able to atone. It is true that, in the case of Carver v. Jackson, 4 Pet. 80, there is an expression of Mr. Justice Story, in delivering the opinion of the court, broad enough to cover this irregular exercise of power by the court in its widest extent. But, upon examination, it will be seen that this expression had no real connection with the points regularly before the court, and, as a mere dictum, was entirely without authority. In the introductory part of his opinion, Mr. Justice Story, meaning merely to express his disapprobation of a practice of bringing up for review the entire charge of the court below, without stating specific points or grounds of exception, as extremely inconvenient, takes occasion to use the following remark, namely,-that, 'with the charge of the court to the jury upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do.' But it is remarkable that this judge goes on to say, with respect to these commentaries, that they are of no binding legal effect; thus, in reality, pronouncing their condemnation in the same breath which sanctions their admission to affect, if it can be done without legal or binding obligation, the minds of the jurors. Surely it may be assumed as a postulate, that a court of justice, in adjudicating upon the rights of the citizen or of the State, should do, and can have power to do, nothing which is irregular, or vain, or useless. Its duty and its office is to do the law, and nothing but the law. The anomalous and contradictory doctrine above noticed has, I think, been condemned by a more recent and a far more correct decision of this court; a decision directly in point upon this subject,-I allude to the case of Hanson v. Eustace, 2 How. 706. In that case, the late Justice Baldwin, under the rule which admits of secondary evidence when the primary evidence is not within the power of a party, or is withheld improperly by his adversary, went so far beyond the just application of the rule as to say to the jury what the secondary or presumptive evidence did actually prove; but still accompanied his declaration with the salvo, 'that if they agreed with him in opinion.' This is his language: 'Should your opinion agree with ours on this point, you will presume that there was a deed from Robert Phillips, or his heirs, competent to vest the title to the sixth street lot in the firm of Robert & Isaac Phillips; that it so remained at the time of the assignment, and that it was by such conveyance as would enable them to enjoy the property against Robert Phillips and his heirs.' And this court reversed the decision of the Circuit Court, upon the ground that the judge's charge declared to the jury what their conclusions, from the secondary evidence, ought specifically to be. This decision I regard as in strict conformity with the doctrines promulged by the fathers of the law, the doctrine which alone can prevent the inestimable trial by jury from becoming a mere mockery and a deception to those who have been taught to revere and rely upon it as the best safeguard of these rights. Transforming this institution from what it was intended to be, and once was in reality,-a trial by the country,-into a mere formula, to be moulded at the discretion of the court. I think that the judgment of the Circuit Court should be reversed.

David D. Mitchell, Plaintiff in Error, }

v.     }

Manuel X. Harmony. }

In obedience to the order of the court in this case, yesterday, the clerk of this court having filed the following report, namely:--

''Supreme Court of the United States. No.'' 178. December Term, 1851.

David D. Mitchell, Plaintiff in Error, }

v.     }

Manuel X. Harmony. }

In error to the Circuit Court of the United States for the Southern District of New York.

In calculating the interest on the judgment of affirmance in the above-entitled cause, the clerk respectfully presents, at the instance of the respective counsel, the following different modes for the consideration of the court:--

1. Interest, at the rate of six per cent., on the judgment of the Circuit Court, from the 9th November, 1850, the day the judgment was signed, to this date.

2. Interest, from the 1st April, 1850, the first day of the term at which the judgment was rendered, to this date.

3. Interest, at the rate of 7 per cent., from 9th November, 1850, to 26th February, 1851, (the date of the writ of error,) and then at 6 per cent. on the aggregate, to this date.

4. Interest, at the rate of 7 per cent., from 1st April, 1850, to 26th February, 1851, and then at 6 per cent. on the aggregate, to this date.

The clerk feels bound to confine his calculations to the 18th rule of the court, irrespective of the act of Congress of 23d August, 1842. WM. THOMAS CARROLL, C. S.C.. U.S.

14th May, 1852.

$95,855.38  Judgment of Circuit Court, U.S., for New York,

signed 9th November, 1850.

8,706.85    Interest, at 6 per cent. per annum, from 9th

--- November, 1850, to 14th May, 1852,-one year,

$104,562.23    six months, and five days.

$95,855.38  Judgment of Circuit Court, U.S., for New York,

rendered 1st April, 1850.

12,204.57   Interest, at 6 per cent. per annum, from 1st April,

--- 1850, to 14th May, 1852,-two years, one

$108,059.95 1/2   month, and fourteen days.

$95,855.38  Judgment of Circuit Court, U.S., for New York,

signed 9th November, 1850.

1,994.35    Interest, at 7 per cent. per annum, from 9th

--- November, 1850, to 26th February, 1851,-three

97,849.73     months and seventeen days.

7,139.51    Interest on this amount at 6 per cent. per annum,

---   from 26th February, 1851, to 14th May, 1852,

$104,989.24    -one year, two months, and eighteen days.

$95,855.38  Judgment of Circuit Court, U.S., for New York,

rendered 1st April, 1850.

6,076.15    Interest, at 7 per cent. per annum, from 1st April,

--- 1850, to 26th February, 1851,-ten months

$101,931.53    and twenty-six days.

7,440.99    Interest on this amount, at 6 per cent. per annum,

---   from 26th February, 1851, to 14th May, 1852,

$109,372.52    -one year, two months, and eighteen days.

And Mr. Vinton having filed the following exceptions, namely: -

The defendant in error, M. X. Harmony, excepts to the report of the clerk, touching the computation of interest on the above-named judgment of the Circuit Court, U.S., for the Southern District of New York, in this, namely:--

1st. That, by the act of Congress of the 23d of August, 1842, the said defendant in error is entitled to the same rate of entitled to if said judgment had been rendered in a State entitled to if said judgment had been rendered in a State court of the State of New York; whereas, the said computation allows 6 per cent. only on said judgment. See 5 Statutes at Large, 518.

2d. That the said interest ought to be computed, on said judgment, from the 1st Monday in April, 1850, instead of from the 9th of November of that year. See printed record, pages 19 and 20.

S. F. VINTON, For Defendant in Error.

May 14, 1852.

And the said defendant in error, also, at the same time, moves the court to open up the judgment of affirmance (rendered in this court at its present term) of said judgment of said Circuit Court, touching the damages allowed in said judgment of affirmance; and in lieu of 6 per cent. per annum, therein given on said judgment below, to allow 7 per cent. per annum therein, to be computed from the ___ day of _____ 1850, in conformity to said act of Congress, of the 23d of August, 1842.

S. F. VINTON, For Defendant in Error.

It is thereupon now here ordered by the court, that the said report and exceptions be set down for argument next Monday, the 17th instant.

The court declined to hear any argument on the motion of Mr. Vinton, and the exceptions filed by him to the clerk's report, and took the same under advisement.

On consideration of the motion made by Mr. Attorney-General Crittenden, on the 13th instant; of the report by the clerk, filed the 14th instant; of the exceptions to said report, by Mr. Vinton, filed the same instant; and of the motion filed by Mr. Vinton, the 15th instant, it is the opinion of the court, that the first calculation by the clerk in his report is the proper mode of calculating the damages given under the rule of court. Wherefore, it is now here ordered by the court, that the judgment entered in this case, on the 12th instant, do stand as the judgment of this court.

title: Mitchell v. Harmony/Dissent Daniel


text:
Page:Essays on Early Ornithology and Kindred Subjects.djvu/47

 ICOLAS THOMAS MARION DUFRESNE was an officer in the French navy, and was born at St. Malo in 1729, In 1771 he was commissioned at his own desire to restore to the island of his birth a Tahitian who had accompanied Bougainville to France. He was also charged to ascertain if a continent or islands existed in the Southern Ocean whence useful products might be exported to Mauritius or Reunion.

The middle of the eighteenth century is approximately the period in which the collection and classification of exotic plants and animals became one of the chief objects of exploratory voyages. This was also one of the aims of the expedition under the command of Marion and Commerson, a botanist who had accompanied De Bougainville, was to have accompanied Marion also. But he was unable to go, so that no botanist and also no zoologist made the voyage. Crozet, however, who was second in command of the Mascarin, has left not a few observations relating to the birds which he saw at sea during the voyage, or in the countries which he visited. They are embodied in his book Nouveau Voyage à la Mer du Sud.

The native of Tahiti fell sick shortly after the commencement of the voyage, and was put ashore in Madagascar, where he died. One of the objects of the voyage thus ceased to exist. The first undiscovered land which was sighted after leaving Madagascar was named Terre d'Espérance, and subsequently, by Cook, Prince


text:
Page:Essays on Early Ornithology and Kindred Subjects.djvu/48

32 Edward Island. Near it a collision with the Mascarin caused the partial disablement of the Marquis de Castries; the search for a southern continent was therefore abandoned, and it was resolved to visit the countries which had been discovered by Tasman in the seventeenth century.

Crozet's first observation relating to sea-birds was made on the 8th of January, 1772, about twelve days after leaving the Cape of Good Hope. Terns were then in view, and thereafter, until the 13th of that month, Terns and Gulls were frequently seen. Shortly after the latter date Du Clesmeur, who was in command of the Marquis de Castries, sighted another island which was named Ile de la Prise de Possession, and which has been renamed Marion Island, Crozet landed upon it, and relates that the sea-birds which were nesting upon it continued to sit on their eggs or to feed their young regardless of his presence. There were amongst the birds penguins, Cape petrels ('damiers'), and cormorants. Crozet also mentions divers—'plongeons.' It is doubtful to what birds he alludes under this name—a name which is usually applied to the Colymbidæ, a family which has no representative in the seas of the southern hemisphere.

The terns which Crozet saw were probably of the species Sterna vittata, which breeds on the islands of St. Paul and Amsterdam. It also frequents the Tristan da Cunha Group, and Gough Island and Kerguelen Island, so that it enjoys a wide distribution in the Southern Ocean. The gulls may have been Dominican Gulls (Larus dominicanus), which are to be found at a considerable distance from any continental land. The penguins which frequent the seas adjacent to the islands which Marion named Ile de la Caverne, Iles Froides, and Ile Aride are Aptenodytes patagonica, Pygoscelis papua, Catarrhactes chrysocome, and Catarrhactes chrysolophus. The eggs of the last-named penguin have


text:
Page:Essays on Early Ornithology and Kindred Subjects.djvu/49

Rh been found on the Ile Aride, which is now known as Crozet Island, and the whole group as the Crozet Islands. The Cape Petrel (Daption capensis) nests on Tristan da Cunha and Kerguelen Island. A Cormorant (Phalacrocorax verrucosus) inhabits Kerguelen Island, but its occurrence on the Crozet Islands is doubtful. Finally, Crozet saw on the island on which he landed a white bird, which he mistook for a white pigeon, and argues that a country producing seeds for the nurture of pigeons must exist in the vicinity. This bird was probably the Sheath-bill (Chionarchus crozettensis) of the Crozet Islands.

The next land visited was Tasmania, where the vessels cast anchor on the east side of the island. Like their Dutch predecessors, the French mariners bestowed the names of European birds upon the birds which they saw in these new lands, and it would be an idle task to seek the equivalents of the ousels, thrushes, and turtle-doves which Crozet saw in Tasmania. There can be no doubt, however, about his pelicans, for Pelecanus conspicillatus still nests on the east coast of the island or on islets adjacent to the coast.

The duration of Crozet's sojourn in New Zealand was about four months in the autumn and winter of 1772. The vessels anchored in the Bay of Islands. Crozet has given a long enumeration of the birds which he saw in New Zealand. We will not seek to find what his wheatears and wagtails, starlings and larks, ousels and thrushes may have been, but we may make an exception in favour of his black thrushes with white tufts ('grives noires à huppes blanches'). These birds were evidently Tuis (Prosthemadura Novæ-Zealandiæ).

Crozet distributes the birds which he saw in New Zealand under four heads, as birds of the forest, of the lakes, of the open country, and of the sea-coast. In the forests were Wood Pigeons


text:
Page:Essays on Early Ornithology and Kindred Subjects.djvu/50

34 as large as fowls, and bright blue in colour; no doubt the one pigeon of New Zealand (Hemiphaga Novæ-Zealandiæ) is alluded to in this description. Two parrots are mentioned, one of which was very large and black or dusky in colour diversified with red and blue, and the other was a small lory, which resembled the lories in the island of Gola. It was no doubt a Cyanorhamphus—a genus of which there are in New Zealand more than one species. The large parrot may be the Kaka, although there is no blue in the plumage of the Kaka (Nestor meridionalis). There is blue under the wing of the Kea, but the Kea (Nestor notabilis) is not a bird of the North, but of the South Island.

In the open country were the passerine birds, which Crozet mentions by the names of European birds, and also a quail (Coturnix Novæ-Zealandiæ) which has lately become extinct.

On the lakes were ducks and teals in abundance, and a 'poule bleue,' similar to the 'poules bleues' of Madagascar, India, and China. The 'poule bleue' was doubtless the Swamp Hen or Purple Gallinule which, because of its rich purple plumage and red feet, is a conspicuous object in New Zealand landscapes. The species which inhabits New Zealand, Tasmania, and Eastern Australia is Porphyria melanotus.

On the sea-coast were cormorants, curlews, and black-and-white egrets. The curlews, which pass the summer in New Zealand and the remainder of the year in islands of the Pacific Ocean, are of the species Numenius cyanopus. They leave New Zealand in autumn, with the exception of a few individuals which remain in favoured localities. The 'aigrettes blanches et noires' were perhaps reef herons; the black bird of the form of an oyster-catcher, and possessing a red bill and red feet, was doubtless the Sooty Oyster-catcher (Hæamotopus unicolor) which


text: Essays on Early Ornithology and Kindred Subjects/The Rukh of Marco Polo


text: Essays on Early Ornithology and Kindred Subjects/The Penguins and the Seals of the Angra de Sam Bràs


text: Essays on Early Ornithology and Kindred Subjects/The Banda Islands and the Bandan Birds


text: Essays on Early Ornithology and Kindred Subjects/New Zealand Birds in 1772


text:
Page:History of West Australia.djvu/566

EMOVE ambition from the motor springs of life, and the result is a limpid, disorganised entity. The consequence of the hypothesis is patent to all; for a little reflection shows that all our aims and ends, so indefinitely and profusely conceived, are but the external covering or shell to that dynamical yoke which is so vaguely represented by the word ambition.

By this strange organic force men are goaded on to the realisation of their ideals, and thrice happy are those whose wills are equal to the task of carrying to the goal the burden of ambition. How often has it been expressed by poet and philosopher alike, that ambition is one of the Creator's greatest blessings. When the wondering world beholds an undaunted struggler, in the heyday of youth, battling against the vicissitudes of life—gradually, yet successfully—it applauds his efforts, and admires the spirit that gives them birth and strength. Yet often do men feel its potent sway, and never act on its stimuli. The spirit is willing, but the flesh is weak. Many men go forth on the sea of life, with determination and courage, illumined by this emotional projector, but their bodies seem to clog their ideas, and physical incapacity drags to perdition the best earthborn hopes and ends.

Those who know Mr. Harold B. McCormack will assuredly say that there is a residium of truth in the applicability of these remarks. He was born in Ballarat in 1864. His father, Mr. William Henry McCormack, is one of the oldest solicitors in the wide and prosperous colony of Victoria. His forty years professional reputation projects venerable halo round his name. His knowledge of law was an epitome, accumulated by long and steadfast experience and industry. Master Harold was educated in Geelong till he attained the age of fifteen years—a stage in a boy's life when his aspirations are all aglow, and his energies bubble over with surfeit abundance. The youthful scholar did not entertain any strong desire to wander into the fields of scholastic study; he preferred a free and open life, with its stimulating conceptions of adventure. His roving and romantic notions impelled him to a far-distant station in his fifteenth year. His boyish pride swelled in his breast when he felt himself, for the first time, master of his actions, and beyond the whack and strap of his old Dominie. He lived on the John Tara Station for four years, gaining creditable experience, and acquitting himself as an industrious and capable overseer. He was next found in the pastoral areas of Queensland, on a station leagues removed from the hum and hub of city life, there following his self-chosen career of pastoralist. One triennial period in this colony closed the first chapter of his callings. With the growth of years and ideas his ideals changed, and what was formerly an immovable desire became, in the course of evolution, an aspersion. He felt that professional life had greater potentialities in store, and that mental labours stood in a higher rank than mere mechanical physical effort. Such a change in the world of aims was natural, and marked the first milestone on the road to higher achievements. He forthwith repaired to Melbourne, and was successful in obtaining a position in the Bank of Australasia. For a year he adapted himself to the arithmetical surroundings of his new sphere, but then the atmosphere of his ledger imprisonment became somewhat noxious, and he forsook the money chambers for the pure oxygen of his old haunts. For some time subsequent to his banking experience, and a period of recruit on the hills, he was sub-editor of the Mildura Cultivator. His journalistic proclivities might have won for him a laudable reputation, but the passion of the moment was reviewed as nothing short of a capricious choice. His leaning towards this new phase was ephemeral.

The trend of his life, amid all its heterogeneity, seems to impress the spectator with its irresistible aversion to anything stereotyped or restricting. Let Mr. McCormack have a palatable office, with a multiplicity of diversions into which his enthusiasm for physical exercise drives him, and we find him revelling in his avocations. From the pen, and everlasting copy of the journalist's desk, he escaped to wield the hammer of the auctioneer. There is not much affiliation or affinity between these two spheres, but the adventurer did not pause, for energy conserved with him must have an outlet, and a judicious blending of occupations seemed to his mind an aromatic seasoning, and an antidote against an ever-recurring monotonous sameness. Twelve months later, in 1893 he left for Western Australia. He resolved to catch the tide at its flow, and with all haste set out for this land of promise, leaving others to wait and watch before "they came behind," to quote the words of Lawson. His journey to Coolgardie was characterised by the same unpleasant experiences as those which befell similar travellers in those early days. By train as far as Doodlakine was sufferable, and possibly pleasant, in view of future discomforts, but from that distant terminus, to the auriferous beds of Coolgardie, is a series of unkind hardships that are more graphically felt than narrated.

title: Page:History of West Australia.djvu/566


text:
Author:Arthur Orlo Norton

Works

 * "Huxley on Science and Culture." in The Harvard Classics Vol. 51 (1914)

title: Author:Arthur Orlo Norton


text: Author talk:Arthur Orlo Norton

title: Author talk:Arthur Orlo Norton


text:
Page:History of West Australia.djvu/567

Rh After several days steady march he reached the locality of the far-booming rush, and he was not a little happy when he disengaged himself from the rather cumbrous swag, whose weight seemed to increase with the march of time. No rest or respite was calmly indulged in on his arrival; with full mining armoury, and sanguine expectations, he assumed the new role of the dry blower on the flat. His first experience could not be termed the unskilful efforts of "new chum," for his success compared favourably with the most fortunate. The flats and their specious contents were hurriedly disembowelled, and the young prospector abandoned operations on this now heap and hole area. Bayley's Reward was already possessed of its first instalment of machinery, and Mr. McCormack engaged to work on the battery when the first five-head were set merrily agoing.

Gradually Coolgardie emerged from dust and lowpitched tents to streets and pretentious edifices. The scene was rapid, the transformation a pleasant spectacle, and the daring prospector gazed amazingly on the kaleidoscopic change of germ, bud, and bloom. Enterprising individuals started business and profession; the bustle and activity of town life prevailed, and everything augured well.

Mr. McCormack's first step was a stride. He became managing clerk in the large legal firm of Horgan, Moorhead, and Harvey. His power of adaptation was decidedly phenomenal. He now amassed valuable insight into the intricate legal machinery of mining, and learnt lessons which were attended with advantageous results.

At such a period of excitement few men of pluck and energy remain long in subservience to the commands and wishes of others. They strike out on ventures of their own. Mr. McCormack set up as a mining agent, and enthusiastic and vigorous capabilities soon attracted an enviable clientele. The very atmosphere at this time was thick with flotations, as infectious as it was necessary. Mr. McCormack co-operated with others in bringing these formations into the realm of existence. His name is closely connected with the flotation of the Mackenzie, Kaniva, Armidale, Dorothy, and Golden Rose mines. Early in 1896 he was appointed to the responsible position of secretary of the Chamber of Mines. The duties of the office demand concentrated attention and intelligence. As secretary of this important institution he has won the respect of its members and of interested adherents without.

At the mining conference, held in Perth in January, 1897, Mr. McCormack was secretary. He was, in fact, the prime mover and instigator of this important assemblage, the results of whose deliberations created a strong impression on mining authorities, both in the colony and abroad. It was categorised by the West Australian as the most successful mining conference ever held in Western Australia. His labours in connection with it were immense, but the awards and praises they necessarily elicited were co-extensive with their arduousness.

Mr. MeCormack's readiness to assist in any public movement has been extensively utilised in Coolgardie. He was appointed hon. secretary of the Railway Opening Committee at Coolgardie in 1896. In athletics, he was captain of the champion junior team of Victoria, and had the enviable honour of being one of the intercolonial rowers.

Caricaturing with Mr. McCormack is a happy pastime. His sketches have often appeared in the Bulletin, and he is a regular contributor in this respect to the Coolgardie Pioneer. He is the fortunate possessor of much real estate in Coolgardie. He married Miss Gertrude Langfield, an English lady, a few years ago in Geelong. Mr. McCormack is a highly popular personage in Coolgardie. He is frank and open-hearted. His numerous manifestations of kindness and public spiritedness have won for him a crowd of sympathetic admirers, whose sincerity is marked by their willingness to requite their many obligations. He is a true colonial, who spurns affectation and cant.

JOHN RICHARD ARTHUR CONOLLY, J.P., M.L.A.

F the many strong advocates who have championed the cause of the Esperance, Norseman, and Dundas districts not one has stood to his guns more tenaciously than Mr. Conolly. From his first entering this colony he seems to have had that bright optimistic foresight which enables one to view through the ever-widening glass of futurity the embyro city heralded by the advent of commerce. Such an eye follows the River of Time, till— "Gone is the calm of the earlier shore, Now bordered by cities, and hoarse With a thousand cries ..... "

James Richard Arthur Conolly is a native of West Meath, Ireland, and was born in 1866. He is a son of a distinguished soldier, Colonel Conolly, V.C., of the Goldstream Guards. The gallant colonel won his distinction in the Crimea. Mr. Conolly's mother was the sister of the late Colonel Fred Burnaby, the dashing soldier, and author of the famous "Ride to Khiva," who was lost to the British Army in the battle of Abou-Klea. The subject of

title: Page:History of West Australia.djvu/567


text: Dictionary of National Biography, 1885-1900/Brett, Robert


text: Index:PoincareDynamiqueJuillet.djvu

title: Index:PoincareDynamiqueJuillet.djvu


text:
Page:PoincareDynamiqueJuillet.djvu/1

It seems at first sight that the aberration of light and the related optical and electrical phenomena will provide us a means of determining the absolute motion of the Earth, or rather its motion, not in relation to the other stars, but in relation to the ether. had already tried it, but he recognized soon that the motion of the earth does not alter the laws of refraction and reflection. Similar experiments, like that of a telescope filled with water and all those which take into consideration only terms of first order in respect to aberration, give no other but negative results; soon an explanation was discovered; but, having imagined an experiment where the terms depending on the square of the aberration became sensitive, failed as well.

It seems that this impossibility of demonstrating an experimental evidence for absolute motion of the Earth is a general law of nature; we are naturally led to admit this law, which we will call the Postulate of Relativity and admit it without restriction. This postulate, which is up to now in accord with experiments, may be either confirmed or disproved later by more precise experiments, it is in any case interesting to see which consequences follow from it.

An explanation was proposed by and, who introduced the hypothesis of a contraction undergone by all bodies into the direction of the motion of earth and proportional to the square of aberration; this contraction, which we will call  contraction, would give an account of the experiment of  and all those which were carried out up to now. The hypothesis would become insufficient, however, if one were to assume the postulate of relativity in all its generality.

sought to supplement and modify it in order to put it in perfect agreement with this postulate. He succeeded in doing so in his article entitled Electromagnetic phenomena in a system moving with any velocity smaller than that of light (Proceedings de l’Académie d’Amsterdam, May 27, 1904).

The importance of the question determined me to take it up again; the results which I

title: Page:PoincareDynamiqueJuillet.djvu/1


text:
Page:PoincareDynamiqueJuillet.djvu/2

 obtained are in agreement with those of on all important points; I was only led to modify and supplement them in some points of detail; one will further see the differences which are of secondary importance.

The idea of can be summarized as follows: if we can bring the whole system to a common translation, without modification of any of the apparent phenomena, it is because the equations of the electromagnetic medium are not altered by certain transformations, which we will call  transformation; two systems, one motionless, the other in translation, thus become exact images of one another.

had sought to modify the idea of ; for both authors the moving electron takes the shape of a flattened ellipsoid, but for two of the axes of the ellipsoid remain constant, while for  on the contrary it is the volume of the ellipsoid which remains constant. Besides, both scientists showed hat these two hypothesis are in agreement with the experiments of, as well as the original hypothesis of Abraham (undeformable spherical electron).

The advantage of the theory of is that it uses only electromagnetic forces and binding forces; but it is incompatible with the postulate of relativity; this is what  had shown, this is what I find again in another way by relying upon the principles of group theory.

It is thus necessary to return from here to the theory of ; but if one wants to preserve it and avoid intolerable contradictions, it is necessary to suppose a special force which explains at the same time the contraction and the constancy of two of the axes. I sought to determine this force, I found that it can be compared to a constant external pressure, acting on the deformable and compressible electron, and whose work is proportional to the variations of the volume of the electron.

So if the inertia of matter is exclusively of electromagnetic origin, as it is generally admitted since the experiment of, and except that constant pressure from which I come to speak, all forces are of electromagnetic origin, the postulate of relativity can be established in any rigour. It is what I show by a very simple calculation founded on the principle of least action.

But this is not all. , in the quoted work, considered it to be necessary to supplement his hypothesis so that the postulate remains when there are other forces as the electromagnetic forces. According to him, all the forces, whatever is their origin, are affected by the transformation (and consequently by a translation) in the same way as the electromagnetic forces.

It was important to examine this assumption more closely and in particular to seek which modifications it would oblige us to bring to the laws of gravitation.

It is found at first sight, that we are forced to suppose that the propagation of

title: Page:PoincareDynamiqueJuillet.djvu/2


text:
Page:PoincareDynamiqueJuillet.djvu/3

 gravitation is not instantaneous, but happens with the speed of light. One could believe that this is a sufficient reason to reject the hypothesis, as has shown that this cannot be so. But actually, this propagation effect is mainly compensated by a different cause, so that there is no more contradiction between the proposed law and the astronomical observations.

Is it possible to find a law, which satisfies the condition imposed by, and which at the same time is reduced to the law of Newton when the speeds of the stars are rather small, so that one can neglect their squares (as well as the product of acceleration and distance) in respect to the square speed of light?

To this question, as it further will be seen, one must answer in the affirmative.

Is the law thus amended compatible with the astronomical observations?

At first sight it seems that it is the case, but this question can be decided only by a thorough discussion.

But even accepting that the discussion turns to the advantage of a new hypothesis, what should we conclude? If the propagation of attraction happens with the speed of light, it cannot be by a fortuitous coincidence, it must be due to a function of the ether; and then it will be necessary to seek to penetrate the nature of this function, and to relate it to the other functions of the fluid.

We cannot be satisfied with simply juxtaposed formulas which would agree only by a lucky stroke; it is necessary that these formulas are so to speak able to be penetrated mutually. Our mind will not be satisfied before it believes to see the reason of this agreement, at the point where it has the illusion that it could have predicted it.

But the question can still be seen form another point of view, which could be better understood by analogy. Let us suppose an astronomer before who reflects on the system of ; he will notice that for all planets one of the two circles, epicycle or deferent, is traversed in the same time. This cannot be by chance, there is thus between all planets a mysterious binding.

But, by simply changing the axes of coordinates regarded as fixed, destroyed this appearance; each planet does not describe any more than only one circle and the durations of the revolutions become independent (until restores between them the binding which was believed to be destroyed).

Here it is possible that there is something analogue; if we admit the postulate of relativity, we would find in the law of gravitation and the electromagnetic laws a common number which would be the speed of light; and we would still find it in all the other forces of any origin, which could be explained only in two manners:

Either there would be nothing in the world which is not of electromagnetic origin.

Or this part which would be, so to speak, common to all the physical phenomena, would be only apparent, something which would be due to our methods of

title: Page:PoincareDynamiqueJuillet.djvu/3


text:
Page:PoincareDynamiqueJuillet.djvu/4

 measurement. How do we perform our measurements? By transportation, one on the other, of objects regarded as invariable solids, one will answer immediately; but this is not true any more in the current theory, if the contraction is admitted. In this theory, two equal lengths are, by definition, two lengths for which light takes the same time to traverse.

Perhaps it would be enough to give up this definition, so that the theory of is as completely rejected as it was the system of  by the intervention of. If that happens one day, it will not prove that the effort made by was useless; because, no matter what we think about him, was not useless for.

Also I did not hesitate to publish these few partial results, although in this moment even the whole theory seems to be endangered by the discovery of magnetocathodic rays.

§ 1. — transformation
had adopted a particular system of units, so as to eliminate the factors 4π in the formulas. I'll do the same, plus I choose the units of length and time so that the speed of light is equal to 1. Under these conditions the fundamental formulas become (by calling f, g, h the electric displacement, α, β, γ the magnetic force, F, G and H the vector potential, φ the scalar potential, ρ the electric density, ξ, η, ζ the electron velocity, u, v, w the current):

A material element of volume dx dy dz suffers a mechanical force whose components X dx dy dz, Y dz dx dy, Z dx dy dz are deduced from the formula:

These equations are capable of a remarkable transformation discovered by and which owes its interest from the fact, that it explains why no experience is suited to show us the absolute motion of the universe. Let:

l and ε are two arbitrary constants, and

$$k=\frac{1}{\sqrt{1-\epsilon^{2}}}.$$

title: Page:PoincareDynamiqueJuillet.djvu/4


text: Dictionary of National Biography, 1885-1900/Brett, Thomas


text:
Page:PoincareDynamiqueJuillet.djvu/5

 If we now set:

$$\square^{\prime}=\sum\frac{d^{2}}{dx^{\prime2}}-\frac{d^{2}}{dt^{\prime2}},$$

it follows:

$$\square^{\prime}=\square l^{-2}.$$

Consider a sphere entrained with the electron in a uniform translational motion, and

$$(x-\xi t)^{2}+(y-\eta t)^{2}+(z-\zeta t)^{2}=r^{2},\,$$

is the equation of that moving sphere whose volume is $$\tfrac{4}{3}\pi r^{2}$$.

The transformation will change it into an ellipsoid, and it is easy to find the equation. It is easily deduced because of equations (3):

The equation of the ellipsoid becomes:

$$k^{2}(x^{\prime}-\epsilon t^{\prime}-\xi t^{\prime}+\epsilon\xi x^{\prime})^{2}+(y^{\prime}-\eta kt^{\prime}+\eta k\epsilon x^{\prime})^{2}+(z^{\prime}-\zeta kt^{\prime}+\zeta k\epsilon x^{\prime})^{2}=l^{2}r^{2}.$$

This ellipsoid moves in uniform motion; for t' = 0, it reduces to

$$k^{2}x^{\prime2}(1+\xi\epsilon)^{2}+(y^{\prime}+\eta k\epsilon x^{\prime})^{2}+(z^{\prime}+\zeta k\epsilon x^{\prime})^{2}=l^{2}r^{2},$$

and has the volume:

$$\frac{4}{3}\pi r^{3}\frac{l^{3}}{k(1+\xi\epsilon)}.$$

If we want that the charge of an electron is not altered by the transformation, and when we call ρ' the new electrical density, it follows:

Those are the new velocities ξ', η', ζ '; we must have:

where:

Here I should mention for the first time a discrepancy with.

poses (with different notations) (loco citato, page 813, formulas 7 and 8):

$$\rho^{\prime}=\frac{1}{kl^{3}}\rho,\quad\xi^{\prime}=k^{2}(\xi+\epsilon),\quad\eta^{\prime}=k\eta,\quad\zeta^{\prime}=k\zeta.$$

title: Page:PoincareDynamiqueJuillet.djvu/5


text:
Page:PoincareDynamiqueJuillet.djvu/6

 We thus find the formulas:

but the value of ρ' differs.

It is important to note that formulas (4) and (4bis) satisfy the continuity condition

Indeed, let λ be an undetermined quantity and D the functional determinant

with respect to t, x, y, z. We will have:

Let $$\lambda'=l^{2}\lambda$$, we see that the four functions

are related to the functions (5) by the same linear relations as the old variables to the new variables. Then, if we denote by D' the functional determinant of the functions (5bis) in relation to the new variables, we have:

where:

With the hypothesis of, this condition is not satisfied, since ρ' has not the same value.

We will define the new potentials, vector and scalar, in order to satisfy the conditions

Then we obtain from this:

These formulas differ significantly from those of, but the difference is ultimately due to the definitions.

We will choose the new electric and magnetic fields so as to satisfy the equations:

title: Page:PoincareDynamiqueJuillet.djvu/6


text:
Page:PoincareDynamiqueJuillet.djvu/7

 It is easy to see that:

and we conclude:

{{MathForm1|(9)|$$\left\{ \begin{align} f^{\prime}=\frac{1}{l^{2}}f, & g^{\prime}=\frac{k}{l^{2}}(g+\epsilon\gamma), & h^{\prime}=\frac{k}{l^{2}}(h-\epsilon\beta),\\ \alpha^{\prime}=\frac{1}{l^{2}}\alpha, & \beta^{\prime}=\frac{k}{l^{2}}(\beta-\epsilon h), & \gamma^{\prime}=\frac{k}{l^{2}}(\gamma+\epsilon g). \end{align}\right.$$}}

These formulas are identical to those of.

Our transformation does not alter the equations (I). Indeed, the continuity condition, and the equations (6) and (8), already provided us with some of the equations (I) (except the accentuation of letters).

Equations (6) close to the continuity condition give:

It remains to establish that:

and it is easy to see that these are necessary consequences of equations (6), (8) and (10).

We must now compare the force before and after transformation.

Let X, Y, Z be the force before, and X', Y', Z' the force after transformation, both related to unit volume. In order for X' to satisfy the same equations as before the transformation, we must have:

or, replacing all quantities by their values (4), (4bis) and (9) and taking into account equations (2):

{{MathForm1|(11)|$$\left\{ \begin{align} X^{\prime} & =\frac{k}{l^{5}}(X+\epsilon\sum X\xi),\\ Y^{\prime} & =\frac{1}{l^{5}}Y,\\ Z^{\prime} & =\frac{1}{l^{5}}Z. \end{align}\right.$$}}

If we represent the components of the force X1, Y1, Z1, not per unit volume, but per unit of electric charge of the electron, and X'1, Y'1, Z'1 are the same quantities after the transformation, we would have:

title: Page:PoincareDynamiqueJuillet.djvu/7


text:
Page:PoincareDynamiqueJuillet.djvu/8

 and we would have the equations

{{MathForm1|(11{{sup|bis}})|$$\left\{ \begin{align} X_{1}^{\prime} & =\frac{k}{l^{5}}\frac{\rho}{\rho^{\prime}}(X_{1}+\epsilon\sum X_{1}\xi),\\ Y_{1}^{\prime} & =\frac{1}{l^{5}}\frac{\rho}{\rho^{\prime}}Y_{1},\\ Z_{1}^{\prime} & =\frac{1}{l^{5}}\frac{\rho}{\rho^{\prime}}Z_{1}. \end{align}\right.$$}}

found [with different notation, page 813, formula (10)]:

{{MathForm1|(11{{sup|ter}})|$$\left\{ \begin{align} X_{1} & =l^{2}X_{1}^{\prime}-l^{2}\epsilon(\eta^{\prime}g^{\prime}+\zeta^{\prime}h^{\prime}),\\ Y_{1} & =\frac{l^{2}}{k}Y_{1}^{\prime}+\frac{l^{2}\epsilon}{k}\xi^{\prime}g^{\prime},\\ Z_{1} & =\frac{l^{2}}{k}Z_{1}^{\prime}+\frac{l^{2}\epsilon}{k}\xi^{\prime}h^{\prime}. \end{align}\right.$$}}

Before going further, it is important to investigate the cause of this significant discrepancy. It is obvious that the formulas for ξ', η', ζ' are not the same, while the formulas for the electric and magnetic fields are the same.

If the inertia of electrons is exclusively of electromagnetic origin, if in addition they are subject only to forces of electromagnetic origin, the equilibrium condition requires that we have inside the electrons:

$$X = Y = Z = 0.\,$$

But in virtue of equations (11) those relations are equivalent to

$$X' = Y' = Z' = 0.\,$$

The equilibrium conditions of the electrons are not altered by the transformation.

Unfortunately, a hypothesis as simple as that is unacceptable. If, indeed, we assume $$\xi=\eta=\zeta=0$$, the conditions $$X = Y = Z = 0$$ entrain $$f = g = h = 0$$, and consequently $$\sum\tfrac{df}{dx}=0$$, i.e. ρ = 0. We arrive at similar results in the most general case. We must therefore admit that there are, in addition to electromagnetic forces, either other forces or bindings. It is necessary to search for conditions which must satisfy these forces or bindings, so that the equilibrium of the electron is not disturbed by the transformation. This will be the subject of a later paragraph.

§ 2. — Principle of least action
We know how Lorentz deduced his equations from the principle of least action. I will return to this question, even though I have nothing substantial to add to the analysis of Lorentz, because I prefer to present it in a slightly different form which will be useful for my purpose. I will pose:

title: Page:PoincareDynamiqueJuillet.djvu/8