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106 —Diaz Miron—ventured to oppose a scandalous proposition of the then President, Gonzales, for the readjustment of the claims of the English holders of the national bonds, he felt it necessary to preface his speech on the floor of the House of Representatives with words to the effect that he fully recognized that, in opposing the Administration, he probably forfeited all chance for future political preferment, even if he did not at once endanger his personal freedom. And such, probably, would have been to him the result, had not the students of the city of Mexico made the cause of Miron their own, and, by organizing and assuming the aggressive, forced the Government to quietly abandon its position.

The yielding of the Government was, however, but temporary; for, in the elections for a new Congress during the present year (1886), it has so ordered matters as to effectually prevent all antagonism to its measures—the Opposition of the last Congress, led by Miron and his associates, and which was regarded by many as so promising for a larger measure of independence and intelligence in Mexican legislation and politics, not having been able, it is understood, to elect a single member.

The present Constitution of Mexico dates back to 1857, with modifications down to 1883. The Mexican States are Independent, in the same

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Rh as are those of the United States, but seem to be less under the control of the central Federal Government, and the Federal Supreme Court, than in the latter country. There is little interest among the people of the Mexican States in national affairs, and consequently little of national spirit; a result naturally to be expected when one recalls that a large proportion of the population are Indians, who are wholly uneducated, have no conception of what their government is apart from military rule, and do not in the least concern themselves about its details. The leaders in the States are also largely military men, and experience in the past has shown that they are rarely restrained by sentiments of pride or patriotism from using their influence for their own personal advantage, and with little regard for the public welfare. The Mexican Federal Government, like that of the United States also, is composed of three departments—the legislative, executive, and judicial. Congress consists of a Senate and House of Representatives. There are about two hundred and thirty members of the latter body, elected for two years, and apportioned at the rate of one member for forty thousand inhabitants. The Senate comprises fifty-six members, two from each State. Congressmen and senators are paid three thousand dollars a year. A president of the

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Rh —played jazz, but she played it like a concert artist. Her maiden name was Alicia Castle. That's the name she played under—"

"I knew, of course, who Alicia Castle had been—who doesn't?—and I thought immediately that I had the whole story. Loving husband—wife, fine pianist, dies—husband can no longer bear to hear piano music as he had heard it so many times in his home, soft and loud, fragmentary bits, practising, the human side of music that's somehow missing on a record or over the radio. 'Poor devil,' I thought

"I felt sympathetic, all right. The feeling of intimacy the drinks had built up—and then this confession Pierce had made, that had so dramatically and poignantly explained his peculiar phobia. I tried to be as delicate as possible in my sympathy. I looked down at my hands and murmured, 'She was a wonderful pianist wasn't she? I remember; she always played Dancing in the Wind at the start and finish of her radio programs. And she was your wife—!'

"He didn't seem to be listening. He just sat there across from me, right where you're sitting now, and, like me, he kept looking down at his hands. Only his hands were trembling violently. After a moment he muttered, and his voice was so savage that I almost jumped, 'Dancing in the Wind! God, how I loathe that piece!'

"I didn't say anything; I was afraid to. And in a minute or two he started up again, and the words just poured out of him.

"'Hell, Chambers!' he babbled, with the most peculiar, pitiful eagerness, 'ghosts don't exist! They just don't exist, and that's all there is to it. Especially ghosts that don't do anything but just play piano!'

"He reached for the bottle of Scotch, poured himself a good six ounces, tossed it off in one sobbing gulp that didn't even jar him. He went on talking—raving maybe's the better word.

"'It's been like that ever since the night she died. Piano playing. Her piano playing. I can't mistake it; I know her touch, her style of playing, the licks she used that nobody else can imitate, like I know my own face. It's her playing. Nobody else. It's unmistakable, unmistakable, I tell you! And it's been going on ever since the night she died. Whenever I get near a piano, sooner or later I hear her playing. Not all the time; sometimes she plays only one piece, or just part of a piece, and then stops, as though she's been—called away. Dancing in the Wind, she plays a lot. She had a special arrangement of it. And—nobody else can hear her. Nobody else can hear her playing. Only me.

"'It can't be. Such a thing can't be. There aren't ghosts. There can't be ghosts. But when I get near a piano, sooner or later I hear her ghost playing. The night she died I heard her first, playing on the big grand downstairs in the living room. I went down—but before I got downstairs the music stopped. The room was empty—nobody there. But Lucas—he was our butler then—was outside, in the foyer. I asked him who'd been playing the piano in the living room, and he said, "Nobody, Mr. Pierce. I haven't heard a sound from the living room all evening." So I went upstairs again. Twice more that night I heard it—the sound of her playing—and both times nobody else heard it—nobody but me. I asked; I know. The servants were beginning to look at me as though they thought I was queer; I knew they were beginning to talk among themselves. So I shut up—just watched them, watched the people in the house, the friends and relatives who were dropping in all the time to pay their condolences.

"'Three or four times the next day I heard her playing. Each time I was in the living room—and each time other


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Rh We did not run far; the weather was still bad, raining hard, and at ten o'clock, with wood nearly exhausted, we stopped on the west shore, and there remained all the night, cleaning boilers, etc. Sunday 30th. This morning was cold, and it blew a gale from the north. We started, however, for a wooding-place, but the "John Auld" had the advantage of us, and took what there was; the wind increased so much that the waves were actually running pretty high down-stream, and we stopped until one o'clock. You may depend my party was not sorry for this; and as I had had no exercise since we left St. Louis, as soon as breakfast was over we started—Bell, Harris, Squires, and myself, with our guns—and had quite a frolic of it, for we killed a good deal of game, and lost some. Unfortunately we landed at a place where the water had overflowed the country between the shores and the hills, which are distant about one mile and a half. We started a couple of Deer, which Bell and I shot at, and a female Turkey flying fast; at my shot it extended its legs downwards as if badly wounded, but it sailed on, and must have fallen across the muddy waters. Bell, Harris, and myself shot running exactly twenty-eight Rabbits, Lepus sylvaticus, and two Bachmans, two Sciurus macrourus of Say, two Arctomys monax, and a pair of Tetrao [Bonasa] umbellus. The woods were alive with the Rabbits, but they were very wild; the Ground-hogs, Marmots, or Arctomys, were in great numbers, judging from the innumerable burrows we saw, and had the weather been calm, I have no doubt we would have seen many more. Bell wounded a Turkey hen so badly that the poor thing could not fly; but Harris frightened it, and it was off, and was lost. Harris shot an Arctomys without pouches, that had been forced out of its burrow by the water entering it; it stood motionless until he was within ten paces of it; when, ascertaining what it was, he retired a few yards, and shot it with No. 10 shot,

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Author:Lawrence Fraser Abbott

Works

 * Impressions of Theodore Roosevelt (1919)
 * Impressions of Theodore Roosevelt (1919)

title: Author:Lawrence Fraser Abbott


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116 of the land of such estates is uncultivated, and the water is wasted upon the remainder in the most reckless manner. The titles by which such properties are held are exceedingly varied, and probably to a considerable extent uncertain. Some originated with the Spanish crown, through its viceroys, and have been handed down from generation to generation; some came from Mexico, through its governors or political chiefs; while, over a not inconsiderable part of all the good land of the country, the titles of the Church, although not recognized by the Government, are still, to a certain extent, respected. As agricultural land generally upon the Mexican plateau, has little or no value apart from the use and control of water, it has come to pass that in various communities the title to land is vested in the water-right; and a small land-owner or farmer, instead of holding deeds for the land he occupies, owns a right to so many minutes, hours, or days of water per month—that is, he is entitled to draw from the main irrigation ditch, which skirts or runs through his land, water for so long a time each month, and to cultivate so much land as this water will irrigate. These rights to water, which are therefore equivalent to titles to land, are, like land-titles, inheritable, and subject to the laws of descent; and so scattered sometimes have become the heirs to such rights, that the

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Rh, very curiously, is often the loss of any power of sale by those actually remaining in possession. Thus, in Northern Mexico, according to Consul Sutton, there are persons whose only claim to use the general grazing-lands belonging to the community, and to cut wood upon the same, is the ownership of ten seconds of water per month, and yet even this small right entitles them to hold for their exclusive use such land as they may have under fence, and to live on community land so long as they can build themselves a house and make their ten seconds of water answer their purpose. In such communities agriculture is paralyzed, and, as the only person affected by this pernicious system is the small farmer, the very foundation of progressive cultivation of land is undermined wherever it exists.

Added to all this, there is a marked indisposition on the part of the large owners of real estate in Mexico to divest themselves of such property; and this for various reasons. Thus, in the heretofore almost permanently revolutionary condition of the country, the tenure of movable or personal property was subject to embarrassments from which real estate, or immovable property, was exempt. Under the system of taxation which has long prevailed in Mexico, land also is very lightly burdened. And, finally, from what is probably an

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118 inherited tradition from Old Spain, the wealthy Mexican seems to be prejudiced against investing in co-operative (stock) or financial enterprises—the railways, banks, and mines, in both Old Spain and Mexico, for example, being to-day mainly owned and controlled by English or other foreign capitalists. Under such circumstances, there is no influx of immigrants into Mexico with a view to agriculture, and settlements, such as spring up and flourish in the United States almost contemporaneously with the construction of the "land-grant" and other railroads, are unknown, and are not at present to be expected; all of which clearly works to the great disadvantage of all Mexican railway enterprise and construction. It is also interesting to note, in connection with this subject, that it is the immobility and uncertainty of these same old Spanish or Mexican land-grants, which cover a vast portion of New Mexico, that constitute at present the greatest obstacle in the way of the growth and development of that Territory.

Statutes offering great inducements for permanent immigration—such as a bonus to each immigrant, the right to purchase public lands at moderate prices and on long terms, the right to naturalization and citizenship, and the like—were enacted by the Mexican Congress as far back as 1875, but

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The Encyclopedia Americana (1920)/Fichtelgebirge

FICHTELGEBIRGE, fi H 'tel-gĕ-bēr'gĕ, a mountain range, chiefly situated in the northeast of Bavaria, once covered with pines (Fichte, “pine”), and constituting a watershed between the head-feeders of the Elbe, the Rhine and the Danube. The elevation of the peaks ranges from 2,700 to 3,400 feet. The highest summits are Schneeberg (3,461 feet) and Ochsenkopf (3,334). In their northern extremities the Fichtelgebirge are connected by intermediate chains, on the one hand with the Erzgebirge, and on the other with the Thuringian Forest. They are composed principally of granite and primitive crystalline slates, with bands and intrusions of gneiss, micaceous slates, basalt and some strata of the Tertiary Age (Oligocän). The climate is moist and disagreeable in the elevated sections; snow lies on the summits from October to May. The former rich ore deposits are now exhausted; quarrying, timbering and glass manufacture are the chief industries. Of recent years the Fichtelgebirge have come much into vogue with tourists. Consult Ruchdeschel, ‘Handbook of Bavaria.’


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Page:Transactions of the Second International Folk-Congress.djvu/51

 THE CHAIRMAN'S ADDRESS.

The study of folk-tales and folk-songs, with which we have in this section more particularly to do, is, perhaps, the most generally popular of all the departments of folk-lore. The cause of this popularity is not far to seek. It arises less from the scientific interest of the problems to be solved, or of the results of the investigation, than from the beauty, the wildness, the weird enchantment of many of the tales themselves, and from the tender recollections awakened by them in almost every mind of the hours and feelings of childhood, of faces, of voices, and of scenes long since passed away. Of course we have arrived at that pitch of scientific training that we despise all this sentiment, and we should probably be unwilling to admit how far we have been at one time or another influenced by it. But it may be put as a general proposition—quite inapplicable to ourselves—that many persons are influenced by it, and that some of those who are drawn first of all to the study in this way end by becoming serious investigators of the phenomena. The effect of such an advantage in obtaining recruits ought to be a large body of students, and much consequent' progress in the solution of the questions wherewith we have to deal. But, although some progress has been made, it would be difficult to show that it exceeds the progress made in several other branches of folk-lore,—if, indeed, it will compare with it at all. Do we ask why? The answer will, I think, be found in the fact that hitherto most of the energy devoted to this fascinating subject has been spent in accumulating material rather than in examining and digesting it. Not a word is to be said against the accumulation of material. We have, indeed, a wealth of stories from almost all parts of the world. The books which contain them would already of themselves fill a library, and that not a small one. But there is much yet to be done, much most urgently required, in the way of collection before what we, with self-satisfied emphasis, call civilisation stamps out some races of mankind altogether—as, for


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 would stick in your throat; and besides he wants to work for you; perhaps you can make him useful. But sit down to supper now, and after supper I will show him to you." So she set before him half of a fat heifer, a sheep, and a turkey, which he swallowed so fast that his hair stood on end. When he had finished, Featherflight beckoned to Reuben, who came trembling from behind the oven. The giant looked at him scornfully, and said, "Indeed, as you say, he is but half a mouthful. But there is room for flesh there, and we must fatten him up for a few days; meanwhile, he must earn his victuals. See here, my young snip, can you do a day's work in a day?" and Reuben answered bravely, "I can do a day's work in a day as well as another." So the giant said, "Well, go to bed now; I will tell you in the morning your work." So Reuben went to bed, and Lady Featherflight showed him; while the giant lay down on the floor, with his head in Featherflight's lap, and she combed his hair and brushed his head, until he went fast asleep.

The next morning, Reuben was called bright and early, and was taken out to the farmyard, where stood a large barn, unroofed by a late tempest. Here the giant stopped and said: "Behind this barn you will find a hill of feathers; thatch me this barn with them, and earn your supper; and look you, if it be not done when I come back to-night, you shall be fried in meal, and eaten whole for supper." Then he left, laughing to himself as he went down the road.

Reuben went bravely to work, and found a ladder and basket; he filled the basket, ran up the ladder, and then tried hard to make a beginning on the thatch. As soon as he placed a handful of feathers, half would fly away, as he wove them in. He tried for hours with no success, until, at last, half of the hill was scattered to the four winds, and he had not finished a handbreadth of the roof. Then he sat down at the foot of the ladder, and began to cry, when out came Lady Featherflight with the basket on her arm, which she set down at his feet, saymg, "Eat now, and cry afterwards. Meantime I will try to think what I can do to help you." Reuben felt cheered, and went to work, while Lady Featherflight walked round the barn, singing as she went:


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 42 As she walked round the second time, the sky grew dark, and a heavy cloud hid the sun and came nearer and nearer to the earth, separating at last into hundreds and thousands of birds. Each, as it flew, dropped a feather on the roof, and tucked it neatly in; and when Reuben's meal was finished the thatch was finished too.

Then Featherflight said, "Let us talk and enjoy ourselves till my father the giant comes home." So they wandered round the grounds and the stables, and Lady Featherflight told of the treasure in the strong-room, till Reuben wondered why he was born without a sixpence. Soon they went back to the house, and Reuben helped, and Lady Featherflight prepared supper, which to-night was fourteen loaves of bread, two sheep, and a jack-pudding by way of finish, which would almost have filled the little house where Reuben was born.

Soon the giant came home, thundered at the door again, and shouted, "Let me in! Let me in!" Featherflight served him with the supper already laid, and the giant ate it with great relish. As soon as he had finished, he called to Reuben and asked him about his work. Reuben said, "I told you I could do a day's work in a day as well as another. You'll have no fault to find." The giant said nothing, and Reuben went to bed. Then, as before, the giant lay down on the floor, with his head in Featherflight's lap. She combed his hair and brushed his head, till he fell fast asleep. The next morning the giant called Reuben into the yard, and looked at his day's work. All he said was, "This is not your doing," and he proceeded to a heap of seed, nearly as high as the barn, saying, "Here is your day's work. Separate the seeds, each into its own pile. Let it be done when I come home to-night or you shall be fried in meal, and I shall swallow you bones and all." Then the giant went off down the road, laughing as he went. Reuben seated himself before the heap, took a handful of seeds, put corn in one pile, rye in another, oats in another, and had not begun to find an end of the different kinds when noon had come and the sun was right overhead. The heap was no smaller, and Reuben was tired out. So he sat down, hugged his knees, and cried. Out came Featherflight, with a basket on her arm, which she put down before Reuben, saying, "Eat now, and cry after." So Reuben


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 ate with a will, and Lady Featherflight walked round and round the table, singing as she went:

As she walked round the heap for the second time, still singing, the ground about her looked as if it was moving. From behind each grain of sand, each daisy stem, each blade of grass, there came some little insect, grey, black, brown, or green, and began to work at the seeds. Each chose out one kind, and made a heap by itself. When Reuben had finished a hearty meal, the great heap was divided into countless others, and Reuben and Lady Featherflight walked and talked to their heart's content for the rest of the day. As the sun went down, the giant came home, thundered at the door again, and shouted, "Let me in! Let me in!"

Featherflight greeted him with his supper, already laid, and he sat down and ate with a great appetite four fat pigs, three fat pullets, and an old gander. He finished off with a jack-pudding. Then he was so sleepy he could not keep his head up; all he said was, "Go to bed, youngster! I'll see your work to-morrow." Then, as before, the giant laid himself down on the floor with his head in Featherflight's lap. She combed his hair and brushed his head, and he fell fast asleep. The next morning, the giant called Reuben into the farmyard earlier than before. "It is but fair to call you early, for I have work, more than a strong man can well do." He showed him a heap of sand, saying, "Make me a rope, to tether my herd of cows, that they may not leave the stalls before milking-time." Then he turned on his heel, and went down the road laughing. Reuben took some sand in his hands, gave one twist, threw it down, went to the door, and called out, "Featherflight, Featherflight, this is beyond you! I feel myself already rolled in meal and swallowed, bones and all!"

Out came Featherflight, saying with good cheer, "Not so bad as that. Sit down, and we will plan what to do." They talked and planned all the day. Just before the giant came home, they went up to the top of the stairs to Reuben's room; then Featherflight pricked Reuben's finger and dropped a drop of blood on each of the three stairs. Then she came down and prepared the


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44 supper, which to-night was a brace of turkeys, three fat geese, five fat hens, six fat pigeons, seven fat woodcocks, and half a score quail, with a jack-pudding.

When he had finished, the giant turned to Featherflight with a growl: "Why so sparing of food to-night? Is there no good meal in the larder? This boy whets my appetite. Well for you, young sir, if you have done your work. Is it done" "No, sir," said Reuben, boldly; "I said I could do a day's work in a day as well as another, but no better." The giant said: "Featherflight, prick him for me with a larding-needle, hang him in the chimney-corner well wrapped in bacon, and give him to me for my early breakfast." Featherflight says, "Yes, father." Then, as before, the giant laid himself down on the floor with his head in Featherflight's lap. She combed his hair and brushed his head, and he fell fast asleep.

Reuben goes to bed, his room at the top of the stairs. As soon as the giant is snoring in bed, Featherflight softly calls Reuben, and says, "I have the keys of the treasure-house; come with me." They open the treasure-house, take out bags of gold and silver, and loosen the halter of the best horse from the best stall in the best stable. Reuben mounts, with Featherflight behind, and off they go. At three o'clock in the morning, not thinking of his order the night before, the giant wakes, turns over, and says, "Reuben, get up." "Yes, sir," says the first drop of blood. At four o'clock the giant wakes, and says, "Reuben, get up." "Yes, sir," says the second drop of blood. At five o'clock the giant turns over, and says, "Reuben, get up." "Yes, sir," says the third drop of blood. At six o'clock the giant wakens, turns over, and says, " Reuben, get up," and there was no answer.

Then with a great fury he says, "Featherflight has overslept herself; my breakfast won't be ready." He rushed to Featherflight's room; it is empty. He dashes downstairs to the chimney-corner, to see if Reuben is hanging there, and finds neither Reuben nor Featherflight.

Then he suspects they have run away, and rushes back for his seven-leagued boots, but cannot find the key under his pillow. He rushes down, finds the door wide open, catches up his boots, and rushes to the stable. There he finds the best horse from the best stall in the best stable gone. Jumping into his boots,


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 he flies after them swifter than the wind. The runaways had been galloping for several hours, when Reuben hears a sound behind him, and turning, sees the giant in the distance. "O Featherflight, Featherflight, all is lost!" But Featherflight says, "Keep steady, Reuben; look in the horse's right ear, and throwbehind you over your right shoulder what you find." Reuben looks, finds a little stick of wood, throws it over his right shoulder, and there grows up behind them a forest of hard wood. "We are saved," says Reuben. "Not so certain," says Lady Featherflight; "but prick up the horse, for we have gained some time." The giant went back for an axe, but soon hacked and hewed his way through the wood and was on the trail again. Reuben again heard a sound, turned and saw the giant, and said to Lady Featherflight, "All is lost!" "Keep steady, Reuben," says Featherflight; "look in the horse's left ear, and throw over your left shoulder what you find." Reuben looked, found a drop of water, throws it over his left shoulder, and between them and the giant there arises a large lake, and the giant stops on the other side, and shouts, "How did you get over?" Featherflight says, "We drank, and our horses drank, and we drank our way through." The giant shouts scornfully back, "Surely I am good for what you can do," and he threw himself down, and drank, and drank, and drank, and then he burst.

Now they go on quietly till they come near to a town. Here they stop, and Reuben says, "Climb this tree and hide in the branches till I come with the parson to marry us. For I must buy me a suit of fine clothes before I am seen with a gay lady like yourself." So Featherflight climbed the tree with the thickest branches she could find, and waited there, looking between the leaves into a spring below. Now this spring was used by all the wives of the townspeople to draw water for breakfast. No water was so sweet anywhere else; and early in the morning they all came with pitchers and pails for a gossip, and to draw water for the kettle. The first who came was a carpenter's wife, and as she bent over the clear spring, she saw, not herself, but Featherflight's lovely face reflected in the water. She looks at it with astonishment, and cries, "What, I a carpenter's wife, and so handsome? No, that I won't!" and down she threw the pitcher, and off she went.


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 46 The next who came was the potter's wife, and as she bent over the clear spring, she saw, not herself, but Featherflight's lovely face reflected in the water. She looks at it with astonishment, and cries, "What, I a potter's wife, and so handsome? No, that I won't!" and down she threw the pitcher, and off she went. [In the same way all the wives of the men of the village came to the spring, see the reflection, throw down their pitchers, and depart.]

All the men in the town began to want their breakfast, and one after another went out into the market-place to ask if by chance anyone had seen his wife. Each came with the same question, and all received the same answer. All had seen them going, but none had seen them returning. They all began to fear foul play, and all together walked out toward the spring. When they reached it, they found the broken pitchers all about the grass, and the pails, bottom upwards, floating on the water. One of them, looking over the edge, saw the face reflected, and knowing it was not his own, looked up. Seeing Lady Featherflight, he called to his comrades, "Here is the witch, here is the enchantress. She has bewitched our wives; let us kill her." And they began to drag her out of the tree, in spite of all she could say. Just at this moment Reuben comes up, galloping back on his horse, with the parson up behind. You would not know the gaily-dressed cavalier to be the poor ragged boy who passed over the road so short a time before. As he came near he saw the crowd, and shouted, "What's the matter? What are you doing to my wife?" The men shouted, "We are hanging a witch; she has bewitched our wives, and murdered them, for all that we know." The parson bade them stop, and let Lady Featherflight tell her own story. When she told them how their wives had mistaken her face for theirs, they were silent a moment, and then one and all cried, "If we have wedded such fools they are well sped," and turning, walked back to the town. The parson married Reuben and Lady Featherflight on the spot, and christened them from water of the spring, and then went home with them to the great house that Reuben had bought as he passed through the town. There the newly-married pair lived happily for many months, until Reuben began to wish for more of the giant's treasure, and proposed that they should go back for it. But they could not cross the water. Lady Featherflight said, "Why not


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 build abridge?" And the bridge was built. They went over with waggons and horses, and brought so heavy a load that, as the last waggonful passed over the bridge, it broke, and the gold was lost. Reuben lamented, and said, "Now we can have nothing more from the giant's treasure-house." But Lady Featherflight said, "Why not mend the bridge?"

This tale was obtained from a member of a highly intelligent family in Massachusetts, in which it has been traditional. I have observed, in New England, that in folk-literature the best versions of tales and games are found in the possession of educated persons. The truth is, I believe, that English popular literature, like that of other countries, has been the property, not only of the inferior portion of the community, but also of the most intelligent class; incoherence and vulgarity are the result of transmission, through illiterate persons, of material which, in former centuries, was in circulation among the superior part of the nation. This circumstance must be taken into account in framing a definition of folk-lore; if the word folk is to be defined, in the language of early dictionaries, as plebs or vulgus, it must be admitted that our own grandmothers belonged to the vulgar: in the words of the President of the American Folk-lore Society, the folk must be taken to include "(1) all savages; (2) the old-fashioned people; (3) the children; and (4) all of us when we are old-fashioned."

Of all folk-tales, this is perhaps the most widely diffused. In the course of remarks on a Scottish version of the story, Mr. Andrew Lang has remarked that no human composition would seem to have attained so wide a circulation as the work of the unknown author. The force of this observation will be made clear by the comparisons presently to be offered.

Other English versions are as follows: (1) In Scottish dialect,


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Author talk:Frank Hutson Gregory

Biographical
Born: Lancashire, England in 1951. Educated at Friends' School, Lancaster; University of York (B.A. Philosophy); University of Lancaster (M.Sc. Information Management); University of Warwick (Ph.D. Industrial and Business Studies).

Created the Logico-linguistic_modeling~ method for the design of information systems with artificial intelligence.

Address: Frank Hutson Gregory can be contacted through his personal web page at (url|logicalgregory.jimdo.com)

title: Author talk:Frank Hutson Gregory


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48 "Nicht, Nocht, Nothing" ; (2) from Ireland, "The Story ot Grey Norris from Warland" ; (3) "The Three Tasks," also from Ireland, but a literary recension-; (4) from Jamaica, a


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Tioga Railroad v. Blossburg and Corning Railroad/Concurrence Hunt

Mr. Justice HUNT, concurring in the judgment.

The question whether, upon the merits, the plaintiff is entitled to recover is no longer an open question. It was settled by the adjudication of the point by the highest courts of New York in an action between the same parties and upon precisely the same facts. The record in the former suit was given in evidence in this suit, and is conclusive.

The point with which we are principally concerned at this time arises upon the statute of limitations. This action was commenced on the 6th day of May, 1864, and it was insisted that all that part of the claim which became due on or before May 6th, 1858, was barred by the statute of limitations of the State of New York. The court below held against this claim, but it is repeated and renewed on this appeal.

The Civil Code of New York repeals the former laws on the subject of the limitation of actions and enacts as follows:

'SECTION 74. Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute.

'SECTION 89. The periods prescribed in section seventy-four for the commencement of actions, other than for the recovery of real property, shall be as follows:

'SECTION 91. Within six years: 1. An action upon a contract, obligation, or liability, express or implied (excepting judgments and sealed instruments).

'SECTION 100. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited after the return of such person into this State; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.'

An examination of the statutes of the different States shows a great similarity in their provisions. They generally provide that if a person shall be out of the State when the cause of action accrues against him the statute does not begin to run until he returns into the State; if, after the cause of action has accrued, such person shall depart from and reside out of the State, the time of his absence shall not be taken to be a part of the time limited for the commencement of the action. As to a resident of the State where the action is brought, his temporary absences after the cause of action shall have accrued do not suspend the running of the statute. As to a non-resident debtor, however long his absence may be continued, he takes no benefit from the statute. Temporary returns do not put the statute in motion. So long as he continues to reside in another State, so long he is liable to an action in the State in which he is sued. These provisions are found in substance in the statutes of Maine, Massachusetts, New Jersey, Vermont, New Hampshire, Michigan, Wisconsin, Arkansas, Oregon, and Iowa.

The State of New York is not singular, therefore, in providing or in holding that although a debtor may have been from time to time within the State, yet while he is a resident of another State, and until he becomes a resident of New York, he cannot ask the protection of the statute of limitation.

It was proved and conceded that during all the time of the existence of the contract in question the defendant had property within the State of New York, an office at Corning, New York, directors, officers, and agents within the State; that it was at all times amenable to the process of its courts; and that in 1855 the plaintiff availed itself of this condition of things to bring a suit against the defendant for a portion of the demand claimed under the contract now in controversy, and that the present suit was commenced by the service of a summons upon the defendant's agent at Corning, New York.

In 1848 the code of New York authorized the commencement of a suit by the delivery of a copy of the summons to the defendant, and if the suit was against a corporation, to the president or other head of the corporation, secretary, cashier, or managing agent thereof.

In 1851 this section was amended by adding thereto the words 'but such service can be made in respect to a foreign corporation only when it has property within this State, or the cause of action arose therein.'

In 1859 this subdivision was further amended by adding, at the end, the words 'or where such service shall be made within the State, personally upon the president, treasurer, or secretary thereof.'

It would appear from this analysis that the legislature intended to authorize the commencement of a suit against a corporation by the delivery of a summons to its president or other officer, without regard to the facts: 1st, whether it was a domestic or a foreign corporation; or 2d, whether it had property within the State; or 3d, whether the cause of action arose within the State; or 4th, whether such service was made within this State or without the State. It amended the proceeding, first by limiting this mode of commencing a suit against a foreign corporation to a case where it had property within this State or where the cause of action arose therein; and second, by requiring such service to be made within this State.

In commenting upon these provisions, the counsel for the plaintiff in error says: 'It is then apparent that ever since 1848, it has been in the power of any creditor of the Tioga company to sue it in the courts of New York, and recover a judgment against it as effectual and conclusive as any that could be obtained against any citizen or domestic corporation, for it has had during all that time property within the State and officers upon whom process could have been personally served; and in this case, the cause of action, if any, arose within the State of New York.'

That a judgment could be obtained during that period is apparent, but that an effectual and conclusive judgment could be obtained by the service of a New York summons upon an officer of a Pennsylvania corporation in that State, as was authorized by the code until the year 1859, is not so apparent. The process of the New York courts does not and cannot run beyond the territorial limits of that State. A service of such process within the State of Pennsylvania would be void. The broad language used in these statutes justifies the construction given it by the New York courts, that they were intended to provide for a judgment not complete and effectual but limited and restricted like that obtained upon publication or by attachment proceedings. The statutes give no evidence that a more perfect judgment was expected to be obtained where the service of the summons was made upon the officer within this State than when it was made without it. A suit was authorized to be commenced against a foreign corporation by any of these various modes, or by attachment and publication. In the latter case no pretence is made that the judgment is effectual and conclusive, and the fact that the cause of action arose within this State or that the corporation had property within the State, can give but little addition to its conclusiveness. Such is the doctrine announced not only in Rathbun v. Northern Central Railroad Co., but in many previous cases.

In the 4th, in the 5th, and in the 10th of Howard's Practice Cases, it is held that a judgment obtained in a suit commenced by the service of a summons upon an officer of a foreign corporation while in this State is not a personal judgment, that it can only be enforced against property in this State.

In Rathbun v. Northern Central Railroad Co., in delivering the unanimous opinion of the court, Folger, J., after citing the statutes upon the subject and discussing the decisions of the State heretofore made, bases the decision that the statute did not limit the action against the defendant in that suit upon the principle that the judgment to be obtained by service upon the officer of a foreign corporation would not be a full and perfect judgment prevalent against it in a State other than New York. The case as reported in the series does not contain the opinion, but a copy certified by the reporter has been handed to us, and it is full and explicit upon the point now suggested.

The cases establish, that a corporation has its existence and domicile only within the jurisdiction of its origin, and that in its nature it is incapable of migration to another jurisdiction.

In the Bank of Augusta v. Earle, it was said: 'The artificial person or legal entity known to the common law as a corporation, can have no legal existence out of the bounds of the sovereignty by which it is created, that it exists only in contemplation of law and by force of law, and where that law ceases to operate the corporation can have no existence. It must dwell in the place of its creation.'

The same doctrine was reiterated and the above language quoted with approbation by Taney, C.J., in Ohio and Mississippi Railroad Co. v. Wheeler.

In Day v. Newark India-Rubber Manufacturing Company, Mr. Justice Nelson held that a corporation of New Jersey, although it had a place for the store and sale of its goods in New York, was not an inhabitant of that city, and that it could have no corporate existence beyond the territory of New Jersey. These principles have never been disturbed, although other doctrines contained in these cases in regard to the residence of a corporation, when plaintiff in an action, have been reconsidered.

It is also established in the courts of New York, that a foreign corporation is a citizen of the State from which it obtains its charter, and that it is incapable of immigration.

We do not say that a corporation cannot run its cars in a State other than that where it is incorporated and where it is domiciled, nor that it cannot by its lawful agents make contracts and do other business in such State. We assume that it can. In doing these things it does not lose its residence in the former State nor become a resident of the latter. It still resides in the State where it is incorporated and does not depart therefrom.

We assume, also, that a foreign corporation may appoint an attorney to appear for it when sued in a foreign State, and that a judgment obtained against it, upon such appearance, would be perfect and complete. We are not aware that this proposition has ever been doubted.

By section one hundred of the New York code, already quoted in full, the statute of limitations does not apply to the case of a person who shall be 'out of the State when the cause of action shall accrue against him.' If he 'depart from and reside out of the State after such cause of action shall have accrued, the time of his absence shall not be taken as any part of the time limited for the commencement of such action.' Although a natural person who has thus departed may return frequently and remain long, yet if his domicile continues in another State, the time of his non-residence forms no part of the time limited by the statute. It was legally impossible for the Tioga Railroad Company to depart from the State of Pennsylvania. Of course, it could not bring its residence into the State of New York. It was resident out of the State when the cause of action accrued against it, and had ever since so continued. There is no limitation of the time in which the action may be brought in such a case.

Statutes of limitation are in their nature arbitrary. They rest upon no other foundation than the judgment of a State as to what will promote the interests of its citizens. Each determines such limits and imposes such restraints as it thinks proper.

In Angell on the Limitation of Actions at Law, the author says: 'Under the thirty-fourth section of the Judiciary Act of 1789, the acts of limitations of the several States, where no special provision has been made by Congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the State courts. In accordance besides to a steady course of decision for many years, the Federal judiciary feel it an incumbent duty carefully to examine and ascertain if there be a settled construction by the State courts of the statutes of the respective States where they are exclusively in force, and to abide by and follow such construction when found to be settled. There is no unwritten or common law of the Union. The rule of action is found in the different States as it may have been adopted and modified by legislation and a course of judicial decisions. The rule of decision must be found in the local law, written or unwritten.'

The decisions of the courts of the State of New York upon the question before us directly, and in its collateral aspects, have been uniform and consistent. They all sustain the view we have taken; Burroughs v. Bloomer, holding that the time spent by a person in this State while domiciled elsewhere, is not to be deemed as a part of the time required for the running of the statutes; McCord v. Woodhull, to the same purport; Olcott v. Tioga Railroad Company, and Rathbun v. Northern Central Railroad Company, together with the cases already cited, showing that a judgment obtained by service of a summons upon the agent or officer of a foreign corporation is not personal and conclusive; and Blossburg Railroad Company v. Tioga Railroad Company, in the Circuit Court of the United States, heretofore referred to, all tend to the same conclusion.

We have not been referred to a single decision of the New York courts in conflict with these authorities, nor are we aware of any. We are not at liberty to depart from this settled construction were we inclined to do so.

There is nothing in the rulings upon the trial in regard to the admission or exclusion of evidence that requires our interference.

Mr. Justice FIELD concurred in this opinion.


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 tale printed as of African origin, but evidently imported from Europe.

The name "Lady Featherflight" appears not to correspond to any part of the story as now told, but to belong to an omitted section, which gave an account of the manner in which the hero, while proceeding in search of the giant's castle, captures the garments of a bird-maiden, and consents to return these only on condition of succour. The title of the heroine seems to refer to her original bird-plumage. her toes, given him for steps, and flight follows. The magic objects are a twig, a pebble, and a bottle of water; the latter produces a sea, in which the giant is drowned. in. Bride-forgetting.—Jack separates from his bride, violates her injunction by kissing a dog, and forgets her. The end is altered.


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New Orleans v. The Steamship Company/Concurrence Hunt

Mr. Justice HUNT, concurring.

I cannot assent to the proposition that the agents of the city appointed by the conquering power which captured it had authority to execute a lease of its levees and wharves continuing more than nine years after the conquering power had abdicated its conquest. If an extension of nine years may be justified, it would be difficult to repudiate an extension for ninety years, if that case should be presented. The lease under consideration was executed on the 8th day of July, 1865, to continue for the term of ten years. On the 18th of March, 1866, eight months and ten days afterwards, the military authority of the United States was withdrawn and the civil authority resumed its sway. The lease continued for that length of time during the military occupation of the city, and by its terms was to continue nine years, three months, and twenty days after the military dominion did in fact cease to exist. That the execution of this lease was an unwarranted assumption of power by the agents who made it, I quote Halleck on International Law and the Laws of War. He uses this language:

'§ 4. Political laws, as a general rule, are suspended during the military occupation of a conquered territory. The political connection between the people of such territory and the state to which they belong is not entirely severed, but is interrupted or suspended so long as the occupation continues. Their lands and immovable property are, therefore, not subject to the taxes, rents, &c., usually paid to the former sovereign. These, as we have said elsewhere, belong of right to the conqueror, and he may demand and receive their payment to himself. They are a part of the spoils of war, and the people of the captured province or town can no more pay them to the former government than they can contribute funds or military munitions to assist that government to prosecute the war. To do so would be a breach of the implied conditions under which the people of a conquered territory are allowed to enjoy their private property and to pursue their ordinary occupations, and would render the offender liable to punishment. They are subject to the laws of the conqueror, and not to the orders of the displaced government. Of lands and immovable property belonging to the conquered state, the conqueror has, by the rights of war, acquired the use so long as he holds them. The fruits, rents, and profits are, therefore, his; and he may lawfully claim and receive them. Any contracts or agreements, however, which he may make with individuals farming out such property, will continue only so long as he retains control of them, and will cease on their restoration to, or recovery by, their former owner.' To which he cites Heffter; Vattel; American Insurance Co. v. Canter, and other authorities. See also, Thirty Hogsheads of Sugar v. Boyle.

The wharves and levees now in question were land and immovable property belonging to the conquered state. The fruits and rents of them were spoils of war which belonged to the conqueror so long as he held the conquered state. When the possession of the conqueror was at an end, the rights belonging to a conqueror ceased also. The spoils of war do not belong to a state of peace.

It is said that although this doctrine may be sound generally, it is not applicable to our recent civil war. But why not? The State of Louisiana was in rebellion against the United States government. It had formally disavowed its association with the United States, and had formally become a member of another and hostile confederated government. The United States invaded its territory and captured its commercial metropolis, not figuratively or metaphorically, but literally and physically; with its ships, its cannon, and its men it battered down the forts built for its protection and drove out the armies by which it was defended. What it thus acquired by military power, it retained by the same power.

The armies of the revolting States were overthrown, and peace ensued. It was not, as the ancient historian said, 'solitudinem faciunt, pacem appellant,' but rest, repose, and rights restored. The State of Louisiana was again the sovereign authority in which all the administrative power of the State was vested. The city of New Orleans as a representative of the State, and under its authority, possessed the absolute control of its municipal powers, in the same manner and to the same extent as it possessed and exercised them before the existence of the war. The displaced government resumed its sway. The conqueror's possession ceased.

The State of Louisiana and the Confederate government were public enemies, not unsuccessful revolutionists merely. The forts of the Confederate States were blockaded as those of a foreign enemy, and vessels taken in attempting to enter them were adjudged prizes of war. A prize court is in its very nature an international tribunal. Their captured soldiers were not shot as rebels, but were exchanged as prisoners of war. All intercourse between the citizens of the contending States was illegal, contracts were dissolved or suspended, their property within our States was confiscated to the public use. In short, we were at war with them. It is difficult to understand why the postliminy doctrine is not applicable under such circumstances.

In Fleming v. Page, Chief Justice Taney says: 'The port of Tampico, at which the goods were shipped, and the Mexican State of Tamaulipas, in which it is situated, were undoubtedly, at the time of the shipment, subject to the sovereignty and dominion of the United States. The Mexican authorities had been driven out or had submitted to our army and navy; and the country was in the exclusive and firm possession of the United States, and governed by its military authorities, acting under the order of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country in the sense in which these words are used in the acts of Congress. . . . While it was occupied by our troops, they were in an enemy's country and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy when he surrenders to a force which he is unable to resist. Tampico, therefore (he says), was a foreign port when this shipment was made.'

This case is authority to the proposition that conquest and temporary military possession do not alter the national character of a city or port. As Tampico remained Mexican, notwithstanding its conquest by our armies, so New Orleans, so far as the jus post liminii is concerned, remained a part of the Southern Confederacy.

There is, however, another view of the case that may be taken.

The care, custody, and control of wharves and levees is legitimately within the power of the city. Like streets and highways, they may be opened or closed in the discretion of the city. The mode in which they shall be used, how managed and regulated, whether open to the use of all indifferently, whether portions shall be set apart for particular uses, whether certain classes of business shall be confined to particular localities, whether controlled by the immediate agents of the city or managed by those to whom the city may lease them, are matters of police regulation to be settled by the authorities of the city. In none of the cases is it to be assumed that the power will be wilfully exercised to the injury of the city.

In my view, the agents of the city who made the lease of July 18th, 1865, which we are now considering, exceeded the authority they possessed. Their authority was limited to the time of the possession and control of the lots by the military authority which appointed them. The making of the lease, however, was not an illegal act in any other sense than that the agents had exceeded their powers. The excessive acts of those agents were capable of ratification, and if ratified, were as binding upon the principal as if originally authorized.

It appears that the lessees gave their notes (one hundred and twenty notes in number) for $666.66 each, payable monthly, for the whole amount of the rent to become due. The first nine of the notes were paid to the mayor and bureau acting under the military authority. The government of the city now in power was elected by the citizens according to law, in the ordinary manner, upon the resumption by the State and city of their civil powers, and was vested with the entire authority of the city in respect to wharves, levees, their management and control. Upon the principles already stated, it had power to lease the levee and wharf in question to the steamship company for the period named in the lease. Prior to the war, it had leased portions of its wharves to individuals, and had farmed out the collection of the levee dues upon the entire wharves by sections.

It came into possession of the city government upon the election of its citizens on the 18th of March, 1866. Twenty-four days thereafter, to wit, on the 11th of April, 1866, the note for $666.66 due three days previously, was paid to the city government. At the same time all the other notes, one hundred and eleven in number, were transferred by the military government to the new city administration. These notes were retained by the city until seyeral months after the present action was begun, when they were tendered to the plaintiff by supplemental answer. No tender was ever made of the money, $666.66, received by the city upon the note paid to it by the plaintiff for the rent due April 8th, 1866. It now holds and enjoys, to that amount, the rent received by it under a lease which it seeks to repudiate.

The reception and holding of this rent is a clear and unqualified act of ratification, which bars the defence of a want of authority to execute the lease from which it issued. It is in violation of every principle of honesty and of sound morality, that one should retain the benefit of the act of his agent, and at the same time repudiate such act.

A ratification once made, with a knowledge of all the material circumstances, cannot be recalled. A ratification of a part of a contract ratifies the whole. One act of ratification is as complete and perfect in its effect as any number of acts of the same character.

CONCUR IN THE AFFIRMANCE OF THE JUDGMENT.


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 50 From a comparison of the English versions, it would appear that our tale, as narrated in England, formerly included the following incidents: I. Introduction.—This explains how it came about that a youth is obliged to proceed in quest of the castle of a giant. II. Bird-maiden.—The hero surprises three birdmaidens, bathing in human form; he seizes the feather-dress of the youngest, and returns it only on promise of assistance in his enterprise. III. Tasks and Flight.—The giant, father of the maiden, receives the stranger with severity, and imposes on him certain tasks, which are, however, accomplished by the magic arts of the daughter. The youth is then required to choose the maid, in disguise, from among her sisters; in this he succeeds by the counsel of the girl. On the wedding night, by the advice of the bride, the pair escape, leaving an object which by artmagic is made to answer the questions asked by the giant. A pursuit takes place, which is arrested by throwing out certain magical objects, interposing barriers; the giant perishes, being drowned in the sea created by drops of water, IV. Forgetfulness of the Bride.—The hero, as he approaches his father's city, goes in advance to arrange for the suitable entry of his bride. He violates her caution, receives a kiss, and is caused to fall into oblivion of the lady. Incident of the fountain; the bride is carried to the house of a peasant, whose wife and daughter, out of conceit of their own beauty, have abandoned household labour. After a time, when the prince is about to wed another, his bride, disguised as a juggler, appears at the ceremony, and by magic causes two birds to enact a drama, which has the effect of reviving the youth's memory.

To the tale as thus analysed correspond a great number of versions, from all European countries, which assume as their common original a story containing the sections and traits indicated. The variations, of course, are numerous, and these variations are often reproduced in many widely separated countries; this correspondence appears to be due to a continual intercommunication, by which even modern alterations of the narrative have been introduced into remote districts, and have obtained general circulation.


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New Orleans v. The Steamship Company/Dissent Field

Mr. Justice FIELD, dissenting.

I am unable to agree with the majority of the court in the judgment rendered. The power of the mayor and board of New Orleans, appointed by the commanding general upon the military occupation of that city, terminated with the cessation of hostilities; and I am of opinion that no valid alienation of any portion of the levee front and landing of the city could be made by them for any period extending beyond such occupation.

Assuming, as asserted, that the capture of New Orleans gave to the military authorities of the Union the same rights with respect to property there situated which would attend the conquest of a foreign country, the result in not different. A temporary conquest and occupation of a country do not change the title to immovable property, or authorize its alienation. They confer only the rights of possession and use. When the military occupation ceases, the property reverts to the original owner with the title unimpaired.

'Of lands and immovable property belonging to the state,' says Halleck, 'the conqueror has by the rights of war acquired the use so long as he holds them. The fruits, rents, and profits are, therefore, his; and he may lawfully claim and receive them, but contracts or agreements, however, which he may make with individuals farming out such property, will continue only so long as he retains control of them, and will cease on their restoration to or recovery by their former owner.' Such is the language of all publicists and jurists, and there is nothing in the circumstances attending the military occupation of New Orleans by our forces which calls for any modification of the well-established rule of public law on this subject. The fact that New Orleans is a part of one of the States of the Union certainly ought not to be deemed a reason for enlarging the power of the military commander, but on the contrary would seem to be good ground for restricting it.

It appears to me to be perfectly clear that, according to settled doctrines of public law, questioned by no publicists, but everywhere recognized, the authorities of New Orleans were restored to as complete control over the levee front and landing of the city upon the cessation of the military occupation as they possessed previously, and had, in consequence, a perfect right to remove all obstacles to the public use of such levees and landings.

I do not see any ground for the application of the doctrine of ratification in the case. The civil authorities of the city were restored to power in March, 1866, and in April following they asserted their right to remove the obstructions to the levees created by the steamship company, and took steps to enforce it. In this proceeding they repudiated instead of ratifying the action of their military predecessors. The one hundred and eleven unpaid notes of the company received by their predecessors have been deposited in court subject to the company's order, and the failure to restore or tender the proceeds of one note, amounting to six hundred and sixty-six dollars, previously paid, may be justified or explained on grounds consistent with the repudiation of the lease. Ratification of unauthorized acts of public agents, or persons assuming to be public agents, can only be inferred from conduct indicating an intention to adopt the acts and inconsistent with any other purpose. The alienation by sale or lease of any portion of the public levees and landings of the city after the restoration of its civil authorities could only be made, if at all, by ordinance or resolution of its common council, and it may be doubted whether there could be a ratification of an unauthorized alienation, attempted by their predecessors, by any proceeding less direct and formal.

I am of opinion, therefore, that the decree of the court below should be reversed, and the bill be dismissed.


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Home Insurance Company v. Morse/Dissent Waite

The CHIEF JUSTICE, with whom concurred Mr. Justice DAVIS, dissenting.

I cannot concur in the judgment which has just been announced. A State has the right to exclude foreign insurance companies from the transaction of business within its jurisdiction. Such is the settled law in this court. The right to impose conditions upon admission follows, as a necessary consequence, from the right to exclude altogether. The State of Wisconsin has made it a condition of admission that the company shall submit to be sued in the courts she has provided for the settlement of the rights of her own citizens. That is no more than saying that the foreign company must, for the purposes of all litigation growing out of the business transacted there, renounce its foreign citizenship and become pro tanto a citizen of that State. There is no hardship in this, for it imposes no greater burden than rests upon home companies and home insurers.

This insurance company accepted this condition, and was thus enabled to make the contract sued upon. Having received the benefits of its renunciation the revocation comes too late.

The State court had jurisdiction to try the question of citizenship upon the petition to transfer. Upon the facts I think it was authorized to find that the company was, for all the purposes of that action, a citizen of Wisconsin, and refuse the order of removal.


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 To the English tale correspond a number of Gaelic märchen: in particular, a well-known tale of the Highlands of Scotland agrees very closely with the Scotch dialectic form of the English tale, even in respect to the introduction, the most divergent part of the narrative. The only manner in which I can explain this resemblance is by the hypothesis of recent transmission; I

clumsy peasant women are made to furnish the mirth of the reader. But other versions give quite a different character to the occurrence; thus, in an Italian tale, while the heroine, in the tree, awaits the return of her lover, a servant who comes to draw water notices the reflection in the well; becoming envious, the servant climbs the tree, and fixes in the head of the beauty a pin, which transforms the latter into a dove. At the wedding, the bird flies to the palace, and by her song attracts the attention of the prince, who, while stroking the bird, draws out the pin, and a retransformation takes place. (G. Pitré, Fiabe, novelle e racconti pop. Sicil., Palermo, 1875, No. 13, i, 118, "La Bella Rosa".)

Basile, Pentamerone (1574), gives versions answering to the incident as narrated in "Lady Featherflight". One trait of the latter is exceedingly interesting. The hero goes to seek a priest to perform the marriage; and this priest christens the lovers. Variants—e. g., a Basque version—explains this procedure: the heroine (as a fairy) could not enter a Christian land until baptised (W. Webster, Basque Legends, London, 1879, p. 120). The presence of this trait is thus the best possible proof of the independence and antiquity of the version found in America. As a second reason is given the intention to provide a suitable equipment, as mentioned in Basile. Thus this form of the märchen, even in details, is older than the sixteenth century.

Mr. Lang observes, as a curious fact, that the fountain incident occurs in the Malagasy tale mentioned below; but this is an error; the whole section of the forgotten bride appears in European versions only. Yet compare the ending of Samoan and Eskimo tales, hereafter noted.


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Sprott v. United States/Dissent Field

Mr. Justice FIELD, dissenting.

I am compelled to dissent from the judgment of the court in this case, and from the reasons stated in the opinion upon which that judgment is founded. The opinion appears to me to proceed upon the assumption that this is an action to enforce a contract which was illegal in its inception, and, therefore, without standing in a court of justice. And the cases of Hanauer v. Doane, in the 12th of Wallace, and Hanauer v. Woodruff, in the 15th of Wallace, are cited in support of the position that contracts of this character will not be upheld. Those authorities do establish the position that contracts entered into for the purpose of aiding the late insurrectionary government are illegal and void, and will not be enforced by the Federal tribunals. In the first case the action was upon two promissory notes, the consideration of which consisted in part of stores and supplies furnished the defendant, an army contractor of the Confederate government, with knowledge that they were to be used in aid of the rebellion, and in part of due-bills issued by the contractor to other parties for similar supplies, and taken up at his request; and the court held that the sale of the goods, being made with the vendor's knowledge of the uses to which they were to be applied, was an illegal transaction and did not constitute a valid consideration for the note of the purchaser, and that the due-bills given by him for similar goods, being taken up by third parties with knowledge of the purpose for which they were issued, were equally invalid as a consideration for his note in their hands. In the second case the action was upon a promissory note, the only consideration of which consisted of certain bonds, issued by the convention of Arkansas which attempted to carry that State out of the Union, and issued for the purpose of supporting the war against the Federal government, and styled 'war bonds' on their face, and one of the questions presented for our determination was whether the consideration was illegal under the Constitution and laws of the United States. And the court answered that it did not admit of a doubt that the consideration was thus illegal and void; that 'if the Constitution be, as it declares on its face it is, the supreme law of the land, a contract or undertaking of any kind to destroy or impair its supremacy, or to aid or encourage any attempt to that end must necessarily be unlawful and can never be treated, in a court sitting under that Constitution and exercising authority by virtue of its provisions, as a meritorious consideration for the promise of any one.' In both of these cases the aid of the courts was sought to enforce unexecuted contracts which were illegal and void in their inception, because made in aid of the rebellion, and all that they decide is that contracts of that character can never be enforced in the courts of that government against which the rebellion was raised. In those courts such contracts stand on the same footing as other illegal transactions; they will not be upheld nor enforced. In both of those decisions I concurred, and in the second case I wrote the opinion of the court. I still adhere to the views expressed in both cases.

But, with great respect for my associates, I am compelled to say that, in my judgment, neither of those cases has any just application to the case at bar, or to any question properly involved in its decision. This action is not brought to enforce an unexecuted contract, legal or illegal; there is no question of enforcing a contract in the case. The question, and the only question, is whether the cotton seized by the forces of the United States in May, 1865, was at the time the property of the claimant. If it was his property, then he is entitled to its proceeds, and the judgment of the Court of Claims should be reversed; and in determining this question we are not concerned with the consideration of his loyalty or disloyalty. He was a citizen of Mississippi and resided within the lines of the Confederacy, and the act forbidding intercourse with the enemy does not apply to his case. He was subject to be treated, in common with other citizens of the Confederacy, as a public enemy during the continuance of the war. And if he were disloyal in fact, and if by his purchase of the cotton he gave aid and comfort to the rebellion, as this court adjudges, the impediment which such conduct previously interposed to the prosecution of his claim was removed by the proclamation of pardon and amnesty made by the President on the 25th day of December, 1868. He was included within the terms of that beneficent public act of the Chief Magistrate of the United States, as fully as if he had been specifically named therein. That pardon and amnesty did not, of course, and could not change the actual fact of previous disloyalty, if it existed, but, as was said in Carlisle v. The United States, 'they forever close the eyes of the court to the perception of that fact as an element in its judgment, no rights of third parties having intervened.' In legal contemplation the executive pardon not merely releases an offender from the punishment prescribed for his offence, but it obliterates the offence itself.

In the present case, therefore, the question of the loyalty or disloyalty of the claimant is withdrawn from our consideration; and as the non-intercourse act does not apply to his case, it does not concern the United States whether he acquired the property from another public enemy or from one of the States of the Confederacy, or from an agent of the Confederate government. He was in possession of the property at the time of the seizure, asserting ownership to it; and no one then disputed, and no one since has disputed his title. Who then owned the property if he did not? The United States did not own it. They did not acquire by its seizure any title to the property. They have never asserted any greater rights arising from capture of property on land in the hands of citizens engaged in the rebellion than those which one belligerent nation asserts with reference to such property captured by it belonging to the citizens or subjects of the other belligerent. All public property which is movable in its nature, possessed by one belligerent, and employed on land in actual hostilities, passes by capture. But private property on land, except such as becomes booty when taken from enemies in the field or besieged towns, or is levied as a military contribution upon the inhabitants of the hostile territory, is exempt from confiscation by the general law of nations. Such is the language of Mr. Wheaton, who is recognized as authority on all questions of public law. And 'this exemption,' he adds, 'extends even to the case of an absolute and unqualified conquest of the enemies' country.'

In Brown v. The United States, the question arose whether enemy's property found on land at the commencement of hostilities with Great Britain, in 1812, could be seized and condemned as a necessary consequence of the declaration of war; and the court held that it could not be thus condemned without an act of Congress authorizing its confiscation. The court, speaking through Chief Justice Marshall, said that it was conceded that war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, and observed that the mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, might more or less affect the exercise of this right, but could not impair the right itself. 'That,' said the court, 'remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will.' But,' added the court, until that will shall be expressed, no power of condemnation can exist in the court.'

It may be doubted whether the right to confiscate property of the enemy wherever found, which is here stated to have been conceded, would at this day be admitted without some qualification excepting private property on land not engaged in actual hostilities or taken as booty, or levied as a military contribution, as stated by Mr. Wheaton. Be that as it may, the decision is emphatic that until Congress by some legislative act directs the confiscation of private property on land, none can be ordered by the courts.

Now, Congress has only provided for the confiscation of private property of persons engaged in the rebellion, by the act of August 6th, 1861, and that of July 17th, 1862. Both of these acts require legal proceedings resulting in a judicial decree of condemnation before the title of the owner can be divested. The present case is not brought under either of these acts. No proceedings for the condemnation and forfeiture of the cotton seized, or of its proceeds, have ever been instituted by the government. The title of the claimant remains, therefore, at this day, as perfect as it did on the day the cotton was seized.

In the case of The United States v. Klein, this court had occasion to consider the rights of property, as affected by the war, in the hands of citizens engaged in hostilities against the United States, and it held, after mature consideration, that the effect of the act of Congress of March 12th, 1863, to provide for the collection of captured and abandoned property in insurrectionary districts, under which the present action is brought, is not to confiscate, or in any case absolutely divest, the property of the original owner, even though disloyal, and that by the seizure the government constituted itself a trustee for those who were by that act declared entitled, or might thereafter be recognized as entitled to the proceeds.

But it is contended that the Confederate government, being unlawful in its origin and continuance, was incapable of acquiring, holding, or transferring a valid title to the property. The court below so held in terms, and this court so far sustains that ruling as to declare that the claimant could not acquire any title to the cotton seized by purchase from that government.

Assuming that the Confederate government was thus incapable of acquiring or transferring title to property, the result claimed by the attorney-general, and held by the majority of this court, would not, in my judgment, follow. That organization, whatever its character, acted through agents. Those agents purchased and sole property. The title of the vendors passed to somebody; if it did not vest in the Confederate government, because that organization was incapable of taking the property, it remained with the agents. The sale of the vendors was a release and quit-claim of their interest, and when that took place the property was not derelict and abandoned. Whatever title existed to the property was, therefore, in the agents if their assumed principal had no existence, and by their sale passed to purchasers from them. Undoubtedly larceny could be alleged against one who feloniously took the property from such purchaser. The taker would not be allowed in any court which administers justice to escape punishment by showing that no title passed to the purchaser because his vendor was the agent, or assumed to be the agent, of a government which had no legal existence. And it is equally clear that the purchaser could have maintained an action for injuries to the property thus purchased, or for its recovery if forcibly removed from his possession by a third party. The plea that the property was not his because obtained from the agent, or a person assuming to be the agent, of an unlawful political organization, would not be held a justification for the injuries or the detention.

But I do not desire to place my objection to the decision of the court upon this view of the case. I place it on higher ground, one which is recognized by all writers on international law, from Grotius, its father, to Wheaton and Phillimore, its latest expounders, and that is, that a government de facto has, during its continuance, the same right within its territorial limits to acquire and to dispose of movable personal property which a government de jure possesses. And that the Confederate government, whatever its character in other respects, possessed supreme power over a large extent of territory, embracing several States and a population of many millions, and exercised that power for nearly four years, we are all compelled to admit. As stated by this court, speaking through Mr. Justice Nelson, it cannot be denied that, by the use of unlawful and unconstitutional means, 'a government in fact was erected greater in territory than many of the old governments in Europe, complete in the organization of all its parts, containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions; and during all which time the exercise of many belligerent rights were either conceded to it, or were acquiesced in by the supreme government, such as the treatment of captives both on land and sea as prisoners of war; the exchange of prisoners; their vessels captured recognized as prizes of war and dealt with accordingly; their property seized on land referred to the judicial tribunals for adjudication; their ports blockaded, and the blockade maintained by a suitable force, and duly notified to neutral powers, the same as in open and public war.'

In Thorington v. Smith, this court placed the Confederate government among that class of governments de facto of which the temporary governments at Castine and Tampico were examples, and said, speaking through Chief Justice Chase, that 'to the extent of actual supremacy, however unlawfully gained, in all matters of government within its military lines the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. But it made obedience to its authority in civil and local matters not only a necessity, but a duty. Without such obedience civil order was impossible.'

With these authorities before me I should unhesitatingly have said-but for the fact that a majority of my associates differ from me, and the presumption is that they are right and I am wrong, that it was impossible for any court to come to the conclusion that a government thus organized, having such immense resources and exercising actual supremacy over such vast territory and millions of people, did not possess the power to acquire and to transfer the title to personal property within its territorial limits.

Our government in its efforts to reach the property of the extinct Confederacy has asserted a very different doctrine from that announced in the court below, and, so far as the cotton seized in this case is concerned, approved here. It has alleged in the courts of England that that Confederacy did acquire property to a vast amount and attempted to reach it in the hands of its agents. In United States v. McRae it filed a bill in the court of chancery in England to obtain an account of all moneys and goods which came to the hands of the defendant, as agent or otherwise, on behalf of the Confederate government during the insurrection, and the payment of the moneys which, on taking such account, might be in his hands, and a delivery over of the goods in his possession. The bill alleged that the Confederate government possessed itself of divers moneys, goods, and treasure, part of the public property of the United States, and that other moneys and goods were from time to time paid and contributed to it by divers persons, inhabitants of the United States, or were seized and acquired by that government in the exercise of its usurped authority; that it had sent to agents and other persons in England large amounts of money to be laid out in purchasing goods for its use, and had sent there large quantities of goods to be sold; that it had thus sent large sums of money and large quantities of goods to the defendant, and that on the dissolution of that government he had them in his possession. And the bill claimed that all the joint or public property of the persons constituting the Confederate government, including the said moneys and goods, had vested in the United States and constituted their absolute property, and ought to be paid and delivered to them. The court held that the moneys, goods, and treasure which were at the outbreak of the rebellion the public property of the United States, and which were seized by the rebels, still continued the moneys, goods, and treasure of the United States, their rights of property and rights of possession being in no wise divested or defeated by the wrongful seizure. But that with respect to property which had been voluntarily contributed to or acquired by the insurrectionary government, and impressed in its hands with the character of public property, the right of the United States was that of a successor of the Confederate government; and that they could recover such property from an agent of that government, but subject, however, to the same rights and obligations, to which that government would have been subjected, had it not been overthrown.

In the case of The United States v. Prioleau, the same court again held that the government of the United States could recover the property of the Confederate government, as its successor or representative in the hands of its agents, but that they must take it subject to all the liens and conditions arising from the contract upon which the property was received by the agents. Neither the United States, in the prosecution of these suits, nor the courts of England in deciding them, expressed the slightest doubt that the title to the property, not originally owned by the United States, had been acquired by the Confederate government, which was in the hands of its agents. And I submit that a response by those courts to the claim of the United States, that the insurgent government, being illegal in its origin and continuance, could neither take, hold, nor transfer title to personal property, would not have been acquiesced in, nor deemed respectful by our government. And I submit respectfully that the earnest denunciation of the wickedness of the rebellion, contained in the opinion of the majority, is no legal answer to the demand of the claimant for the proceeds of his property seized and sold by our government, when that government long since pardoned the only offence of which that claimant was guilty, and thus gave him the assurance that he should stand in the courts of his country in as good plight and condition as any citizen, who had never sinned against its authority.

I am, therefore, of opinion that the judgment of the Court of Claims should be reversed.

title: Sprott v. United States/Dissent Field


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 52 suppose the Gaelic story to have reached the Highlands as a translation of the English tale, at some time not earlier than the thirteenth century. It is to be presumed that the Celtic populations of Great Britain obtained most of their stories belonging to the modern European stock of märchen through the English. It must be remarked that the character of the Gaelic narrative, especially of the preface, is peculiarly wild, and, if it stood alone, would be accounted especially Celtic. This circumstance, however, is by no means inconsistent with the view above taken; it is only with regard to the language, and to the details, that a national quality can be claimed for märchen. This apparent nationality merely indicates that ideas borrowed from abroad have received a dress such as to suit the taste of the race which has adopted them. The rule often accepted as a canon of interpretation, in regard to mediæval literature as well as modern folk-lore, that the rudest form of a story is probably the oldest, is entirely misleading and indefensible.

It is possible that an indication of the presence of our tale in Wales, in the thirteenth or fourteenth century, is to be found in the well-known Welsh story of "Kilhwch and Olwen" (MS. of about 1380). This story is one of a class in which the hero, by wedding of the king's son, the girl takes a gold and silver pigeon, which perform a drama, representing herself and her lover. Awakening of the latter.

Compare a Russian tale, "Afanasief," V. 23, translated by W. R. S. Ralston Russian Folk-tales, London, 1873, p. 120. "Vasilissa the Wise." A king spares and nourishes an eaglet, and finally sets him free. The eagle takes the king on his back to the houses of his sisters, on three successive nights, gives him a ship to sail home, and two coffers. The king opens one, finds it full of cattle, repents, but cannot put them back. A man from the water consents to do so if the king will promise whatever he has at home that he does not know of. Comes home, finds that he has a son, and opens the coffers of treasure. The water-man, after a period, calls on the king, reminds him of his promise, and the son is sent forth. II. Bird-maiden.—The prince comes to the hut of an ogress, who directs him to the sea-shore, charging him to steal the shift of one of twelve bird-maidens (spoonbills), to come to terms with her, and then go to the seaking. This maid is Vasilissa the Wise. He returns her shift, and she rejoins her companions. III. Bride-winning.—Tasks (to build crystal bridge, plant a garden in a night, choose bride from twelve daughters. The girl gives him knowledge of a signal by which this is accomplished). Flight and pursuit; transformation (forms assumed by the girl: a well, a church, a river of honey, in which the water-king drinks himself to death), IV. Bride-forgetting.—Prohibition to kiss, fountain-scene, doves—these baked in a pie (as in Basile, No. 17).


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 forming certain tasks, wins for his wife the daughter of a giant. It is not to be supposed that all tales of this class belong to the particular one now under consideration; but, in the present instance, there are certain incidents which seem to suppose the knowledge, on the part of the recorder of the tale, of a folk-tale answering to our märchen. I should be inclined to suppose that the writer, who does not appear to me to have composed at a time much earlier than the date of the MS., was acquainted with the story of the bird-maiden, then in circulation in Wales, in a form much the same as that which it now possesses, and that he employed this and other märchen for the composition of his work, which, in its present form, is not a popular tale, but a literary product.

An example of the use of our folk-tale in literature is to be found in the drama of the German playwright, Jacob Ayrer (died in 1605), Comedia von der schonen Sidea. The plot is as follows:

Ludolf, prince of Littau, having been defeated and driven from his kingdom by Leudegast, prince of Wittau, in order to avenge himself becomes a magician, and entertains a familiar spirit, Runcifal. The son of his enemy, Engelbrecht, goes to hunt in the forest, and falls into the power of Ludolf, who has been informed by Runcifal of the approach of the youth. Ludolf, by means of his magic art, masters Engelbrecht, and makes a servant of him, committing him to the charge of his daughter Sidea, for whom the captive is to carry wood. Sidea, however, falls in love with the prince, and elopes with him.

In this account may be recognised the bride-winning section of our tale; the giant has been altered into a magician, and the tasks modified into a mere servile obligation; the flight has been reduced to a commonplace elopement. If, however, there were any doubt as to the connection of the tale and the drama, it would be removed by the succeeding part of the story, which


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 54 from the third act follows closely the last portion of the folk-tale, including the scene at the well.

The Tempest of Shakespeare is connected with Ayrer's drama, in what way is not clear. The Tempest is founded on the earlier part of the tale as given by Ayrer; it corresponds, therefore, to the bride-winning section of the märchen. It is true that the resemblance is remote; nevertheless it is sufficient to show that the ground-idea of The Tempest is ultimately derived from the folk-tale.

Closely related to the European märchen, already mentioned, is a story contained in the collection of Somadeva of Kashmir (about 1080 A.D.). This story seems to be a hterary recension of the folk-tale; it does not contain the final section of the European variants, that in which the hero is represented as forgetting his bride. It does not appear that the written narrative has had any influence on the European variants; the close correspondence has arisen from a common oral tradition.


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 As the concluding part of our tale, relating to forgetfulness of the bride, is not found in Asiatic versions, it would seem likely that this last section was added in Europe; these variants, existing in all European countries, must have depended on the narration of a single story-teller, who constructed his tale by adding a new section to an Oriental story. The similarity of these versions would indicate that this narrator lived in a time comparatively recent; the probability is that he belonged to Central Europe, and to one of the most civilised nations.

To the absence in Oriental versions of the last part of the European stories there is one very curious exception, namely, in a ballad of Samoa, which contains all the sections of the tale, including that of bride-forgetfulness. The conclusion seems to be that this ballad must have been inspired by a tale recently imported from Europe, yet the story is highly characteristic in form and scenery. If this be the explanation of the correspondence, the fact is highly instructive, as indicating the ease with which a primitive people may appropriate ideas from civilised visitors, and transform these into forms which would be taken to be of indigenous origin, unless the contrary could be ascertained otherwise than by internal evidence. image of a fairy, who informs him that she is a princess of the City of Ivory. He proceeds thither, and obtains the princess for his wife. The tale, though altered and modernised, seems to depend on the same märchen used by Somadeva. It is curious that the tale of the latter contains both forms of the flight, the casting out of magic objects, and the transformation. Some European versions have one, some the other.

The work of Somadeva, in general, is a translation from the Brat-kathá of Gunadhyā, composed about the time of our era. I cannot say whether the particular tale belonged to the latter collection. There is an independent translation, of the eleventh century, by Kshemendra. See S. Lévi, Journal Asiatique, 8th Ser., vi, 1885, 417; C. R. Lanman, Sanscrit Reader, Boston, 1888, p. 322. For the date of Somadeva, G. Bühler, Vienna Acad. Sitzungsberichte, vol. CX, 1885, 545.


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Folk-tale has hitherto suffered somewhat the same fate as one of her own heroines. On the way to join her spouse, she has been put aside by an envious sister who usurps her place and causes the true bride to perform menial tasks for her. At first it was Mythology that played the rôle of the Substituted Bride. The tale of Cinderella was studied in order to find traces of the dewy dawn, or of the rising moon, or the setting sun. The sun of that theory is for ever set, thanks in large measure to the genial wit and gentle irony of our versatile President. But while getting rid of one substituted bride, Mr. Lang has, in my opinion, only succeeded in introducing another false claimant. Anthropology takes the place nowadays that Mythology once usurped, and the poor Folk-tale is set the task of finding "survivals" for her envious sister Anthropology. We are to study Cinderella on this method in order to discover traces of the old manorial custom of Borough English, in which the youngest child, and not the eldest, succeeds, or to find traces of animal metamorphosis, or to find other things interesting enough in their way, but having extremely little to do with Cinderella as a tale. Now, all these "survivals" are of interest in their way; I am even guilty myself of having written something on Borough English in some of the most ancient of folk-tales. But to study them is not to study the tale, and the first thing to do, in my opinion, is to study the tale itself, and to get what instruction we can for anthropology or for mythology afterwards. It is as if we were studying chemistry for the light it may throw on physiology: we have to get our chemical facts and theories