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 or clusters along the table, some standing, some still remaining seated. There are four of these groups, of three disciples each, and each group is harmoniously interlinked by some natural connecting action with the next. Leonardo, though no special student of the Greeks, has perfectly carried out the Greek principle of expressive variety in particulars subordinated to general symmetry. He has used all his acquired science of linear and aerial perspective to create an almost complete illusion to the eye, but an illusion that has in it nothing trivial, and in heightening our sense of the material reality of the scene only heightens its profound spiritual impressiveness and gravity. The results of his intensest meditations on the psychology and the human and divine significance of the event (on which he has left some pregnant hints in written words of his own) are perfectly fused with those of his subtlest technical calculations on the rhythmical balancing of groups and arrangement of figures in space.

Of authentic preparatory studies for this work there remain but few. There is a sheet at the Louvre of much earlier date than the first idea or commission for this particular picture, containing some nude sketches for the arrangement of the subject; another later and farther advanced, but still probably anterior to the practical commission, at Venice, and a MS. sheet of great interest at the Victoria and Albert Museum, on which the painter has noted in writing the dramatic motives appropriate to the several disciples. At Windsor and Milan are a few finished studies in red chalk for the heads. A highly-reputed series of life-sized chalk drawings of the same heads, of which the greater portion is at Weimar, consists of early copies, and is interesting though having no just claim to originality. Scarcely less doubtful is the celebrated unfinished and injured study of the head of Christ at the Brera, Milan.

Leonardo’s triumph with his “Last Supper” encouraged him in the hope of proceeding now to the casting of the Sforza monument or “Great Horse,” the model of which had stood for the last three years the admiration of all beholders, in the Corte Vecchio of the Castello. He had formed a new and close friendship with Luca Pacioli of Borgo San Sepolcro, the great mathematician, whose Summa de aritmetica, geometrica, &c., he had eagerly bought at Pavia on its first appearance, and who arrived at the Court of Milan about the moment of the completion of the “Cenacolo.” Pacioli was equally amazed and delighted at Leonardo’s two great achievements in sculpture and painting, and still more at the genius for mathematical, physical and anatomical research shown in the collections of MS. notes which the master laid before him. The two began working together on the materials for Pacioli’s next book, De divina proportione. Leonardo obtained Pacioli’s help in calculations and measurements for the great task of casting the bronze horse and man. But he was soon called away by Ludovico to a different undertaking, the completion of the interior decorations, already begun by another hand and interrupted, of certain chambers of the Castello called the Saletta Negra and the Sala Grande dell’ Asse, or Sala della Torre. When, in the last decade of the 19th century, works of thorough architectural investigation and repair were undertaken in that building under the superintendence of Professor Luca Beltrami, a devoted foreign student, Dr Paul Müller-Walde, obtained leave to scrape for traces of Leonardo’s handiwork beneath the replastered and whitewashed walls and ceilings of chambers that might be identified with these. In one small chamber there was cleared a frieze of cupids intermingled with foliage; but in this, after the first moments of illusion, it was only possible to acknowledge the hand of some unknown late and lax decorator of the school, influenced as much by Raphael as by Leonardo. In another room (Sala del Tesoro) was recovered a gigantic headless figure, in all probability of Mercury, also wrongly claimed at first for Leonardo, and afterwards, to all appearance rightly, for Bramante. But in the great Sala dell’ Asse (or della Torre) abundant traces of Leonardo’s own hand were found, in the shape of a decoration of intricate geometrical knot or plait work combined with natural leafage; the abstract puzzle-pattern, of a kind in which Leonardo took peculiar pleasure, intermingling in cunning play and contrast with a pattern of living boughs and leaves exquisitely drawn in free and vital growth. Sufficient portions of this design were found in good preservation to enable the whole to be accurately restored—a process as legitimate in such a case as censurable in the case of a figure-painting. For these and other artistic labours Leonardo was rewarded in 1498 (ready money being with difficulty forthcoming and his salary being long in arrears) by the gift of a suburban garden outside the Porta Vercelli.

But again he could not get leave to complete the task in hand. He was called away on duty as chief military engineer (ingegnere camerale) with the special charge of inspecting and maintaining all the canals and waterways of the duchy. Dangers were accumulating upon Ludovico and the state of Milan. France had become Ludovico’s enemy; and Louis XII., the pope and Venice had formed a league to divide his principality among them. He counted on baffling them by forming a counter league of the principalities of northern Italy, and by raising the Turks against Venice, and the Germans and Swiss against France. Germans and Swiss, however, inopportunely fell to war against each other. Ludovico travelled to Innsbruck, the better to push his interests (September 1499). In his absence Louis XII. invaded the Milanese, and the officers left in charge of the city surrendered it without striking a blow. The invading sovereign, going to Sta Maria delle Grazie with his retinue to admire the renowned painting of the “Last Supper,” asked if it could not be detached from the wall and transported to France. The French lieutenant in Milan, Gian Giacomo Trivulzio, the embittered enemy of Ludovico, began exercising a vindictive tyranny over the city which had so long accepted the sway of the usurper. Great artists were usually exempt from the consequences of political revolutions, and Trivulzio, now or later, commissioned Leonardo to design an equestrian monument to himself. Leonardo, having remained unmolested at Milan for two months under the new régime, but knowing that Ludovico was preparing a great stroke for the re-establishment of his power, and that fresh convulsions must ensue, thought it best to provide for his own security. In December he left Milan with his friend Luca Pacioli, having first sent some of his modest savings to Florence for investment. His intention was to watch events. They took a turn which made him a stranger to Milan for the next seven years. Ludovico, at the head of an army of Swiss mercenaries, returned victoriously in February 1500, and was welcomed by a population disgusted with the oppression of the invaders. But in April he was once more overthrown by the French in a battle fought at Novara, his Swiss clamouring at the last moment for their overdue pay, and treacherously refusing to fight against a force of their own countrymen led by La Trémouille. Ludovico was taken prisoner and carried to France; the city, which had been strictly spared on the first entry of Louis XII., was entered and sacked; and the model of Leonardo’s great statue made a butt (as eye witnesses tell) for Gascon archers. Two years later we find the duke Ercole of Ferrara begging the French king’s lieutenant in Milan to let him have the model, injured as it was, for the adornment of his own city; but nothing came of the petition, and within a short time it seems to have been totally broken up.

Thus, of Leonardo’s sixteen years’ work at Milan (1483–1499) the results actually remaining are as follows: The Louvre “Virgin of the Rocks” possibly, i.e. as to its execution; the conception and style are essentially Florentine, carried out by Leonardo to a point of intense and almost glittering finish, of quintessential, almost overstrained, refinement in design and expression, and invested with a new element of romance by the landscape in which the scene is set—a strange watered country of basaltic caves and arches, with the lights and shadows striking sharply and yet mysteriously among rocks, some upright, some jutting, some pendent, all tufted here and there with exquisite growths of shrub and flower. The National Gallery “Virgin of the Rocks” certainly, with help from Ambrogio de Predis; in this the Florentine character of the original is modified by an admixture of Milanese elements, the tendency to harshness and

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text: Page:Red Riding Hood.ogv/2

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

title: Page:Red Riding Hood.ogv/2


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Page:Two Treatises of Government.djvu/53

 this time, with antient hitory. But this by the by.

§. 34. The other parts of this benediction, or grant, are o expreed, that they mut needs be undertood to belong equally to them all ; as much to Noah's ons as to Noah himelf, and not to his ons with a ubordination, or ''in ucceion. The fear of you'' ; and the dread of you, ays God, hall be upon every beat, &c. Will any body but our author ay, that the creatures feared and tood in awe of Noah only, and not of his ons without his leave, or till after his death? And the following words, into your hands they are delivered, are they to be undertood as our author ays, if your father pleae, or they hall be delivered into your hands hereafter ? If this be to argue from cripture, I know not what may not be proved by it ; and I can carce ee how much this differs from that fiction and fanie, or how much a furer foundation it will prove, than the opinions of philoophers and poets, which our author o much condemns in his preface.

§. 35. But our author goes on to prove, that it may bet be undertood with a ubordination, or a benediction in ucceion ; for, ays he, it is not probable that the private dominion which God gave to Adam, and by his donation, aignation, or ceion to his children, was abrogated, and a community of all things intituted between Noah and his ons-Noah was left the ole heir of the world; why hould it be thought Rh


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 over-elaboration of detail softened, the strained action of the angel’s pointing hand altogether dropped, while in many places pupils’ work seems recognizable beside that of the master. The “Last Supper” of Sta Maria delle Grazie, his masterpiece; as to its history and present condition enough has been said. The decorations of the ceiling of the Sala della Torre in the Castello. Other paintings done by him at Milan are mentioned, and attempts have been made to identify them with works still existing. He is known to have painted portraits of two of the king’s mistresses, Cecilia Gallerani and Lucrezia Crivelli. Cecilia Gallerani used to be identified as a lady with ringlets and a lute, depicted in a portrait at Milan, now rightly assigned to Bartolommeo Veneto. More lately she has by some been conjecturally recognized in a doubtful, though Leonardesque, portrait of a lady with a weasel in the Czartoryski collection at Prague. Lucrezia Crivelli has, with no better reason, been identified with the famous “Belle Ferronnière” (a mere misnomer, caught from the true name of another portrait which used to hang near it) at the Louvre; this last is either a genuine Milanese portrait by Leonardo himself or an extraordinarily fine work of his pupil Boltraffio. Strong claims have also been made on behalf of a fine profile portrait resembling Beatrice d’Este in the Ambrosiana; but this the best judges are agreed in regarding as a work, done in a lucky hour, of Ambrogio de Predis. A portrait of a musician in the same gallery is in like manner contested between the master and the pupil. Mention is made of a “Nativity” painted for and sent to the emperor Maximilian, and also apparently of some picture painted for Matthias Corvinus, king of Hungary; both are lost or at least unidentified. The painters especially recorded as Leonardo’s immediate pupils during this part of his life at Milan are the two before mentioned, Giovanni Antonio Boltraffio and Ambrogio Preda or de Predis, with Marco d’Oggionno and Andrea Salai, the last apparently less a fully-trained painter than a studio assistant and personal attendant, devotedly attached and faithful in both capacities. Leonardo’s own native Florentine manner had at first been not a little modified by that of the Milanese school as he found it represented in the works of such men as Bramantino, Borgognone and Zenale; but his genius had in its turn reacted far more strongly upon the younger members of the school, and exercised, now or later, a transforming and dominating influence not only upon his immediate pupils, but upon men like Luini, Giampetrino, Bazzi, Cesare da Sesto and indeed the whole Lombard school in the early 15th century. Of sculpture done by him during this period we have no remains, only the tragically tantalizing history of the Sforza monument. Of drawings there are very many, including few only for the “Last Supper,” many for the Sforza monument, as well as the multitude of sketches, scientific and other, which we find intermingled among the vast body of his miscellaneous MSS., notes and records. In mechanical, scientific and theoretical studies of all kinds it was a period, as these MSS. attest, of extraordinary activity and self-development. At Pavia in 1494 we find him taking up literary and grammatical studies, both in Latin and the vernacular; the former, no doubt, in order the more easily to read those among the ancients who had laboured in the fields that were his own, as Euclid, Galen, Celsus, Ptolemy, Pliny, Vitruvius and, above all, Archimedes; the latter with a growing hope of some day getting into proper form and order the mass of materials he was daily accumulating for treatises on all his manifold subjects of enquiry. He had been much helped by his opportunities of intercourse with the great architects, engineers and mathematicians who frequented the court of Milan—Bramante, Alberghetti, Andrea di Ferrara, Pietro Monti, Fazio Cardano and, above all, Luca Pacioli. The knowledge of Leonardo’s position among and familiarity with such men early helped to spread the idea that he had been at the head of a regularly constituted academy of arts and sciences at Milan. The occurrence of the words “Achademia Leonardi Vinci” on certain engravings, done after his drawings, of geometric “knots” or puzzle-patterns (things for which we have already learned his partiality), helped to give currency to this impression not only in Italy but in the North, where the same engravings were copied by Albrecht Dürer. The whole notion has been proved mistaken. There existed no such academy at Milan, with Leonardo as president. The academies of the day represented the prevailing intellectual tendency of Renaissance humanism, namely, an absorbing enthusiasm for classic letters and for the transcendental speculations of Platonic and neo-Platonic mysticism, not unmixed with the traditions and practice of medieval alchemy, astrology and necromantics. For these last pursuits Leonardo had nothing but contempt. His many-sided and far-reaching studies in experimental science were mainly his own, conceived and carried out long in advance of his time, and in communion with only such more or less isolated spirits as were advancing along one or another of the same paths of knowledge. He learnt indeed on these lines eagerly wherever he could, and in learning imparted knowledge to others. But he had no school in any proper sense except his studio, and his only scholars were those who painted there. Of these one or two, as we have evidence, tried their hands at engraving; among their engravings were these “knots,” which, being things of use for decorative craftsmen to copy, were inscribed for identification, and perhaps for protection, as coming from the Achademia Leonardi Vinci; a trifling matter altogether, and quite unfit to sustain the elaborate structure of conjecture which has been built on it.

To return to the master: when he and Luca Pacioli left Milan in December 1499, their destination was Venice. They made a brief stay at Mantua, where Leonardo was graciously received by the duchess Isabella Gonzaga, the most cultured of the many cultured great ladies of her time, whose portrait he promised to paint on a future day; meantime he made the fine chalk drawing of her now at the Louvre. Arrived at Venice, he seems to have occupied himself chiefly with studies in mathematics and cosmography. In April the friends heard of the second and final overthrow of Ludovico il Moro, and at that news, giving up all idea of a return to Milan, moved on to Florence, which they found depressed both by internal troubles and by the protraction of the indecisive and inglorious war with Pisa. Here Leonardo undertook to paint an altar-piece for the Church of the Annunziata, Filippino Lippi, who had already received the commission, courteously retiring from it in his favour. A year passed by, and no progress had been made with the painting. Questions of physical geography and engineering engrossed him as much as ever. He writes to correspondents making enquiries about the tides in the Euxine and Caspian Seas. He reports for the information of the Arte de’ Mercanti on the precautions to be taken against a threatening landslip on the hill of S. Salvatore dell’ Osservanza. He submits drawings and models for the canalization and control of the waters of the Arno, and propounds, with compulsive eloquence and conviction, a scheme for transporting the Baptistery of St John, the “bel San Giovanni” of Dante, to another part of the city, and elevating it on a stately basement of marble. Meantime the Servite brothers of the Annunziata were growing impatient for the completion of their altar-piece. In April 1501 Leonardo had only finished the cartoon, and this all Florence flocked to see and admire. Isabella Gonzaga, who cherished the hope that he might be induced permanently to attach himself to the court of Mantua, wrote about this time to ask news of him, and to beg for a painting from him for her study, already adorned with masterpieces by the first hands of Italy, or at least for a “small Madonna, devout and sweet as is natural to him.” In reply her correspondent says that the master is wholly taken up with geometry and very impatient of the brush, but at the same time tells her all about his just completed cartoon for the Annunziata. The subject was the Virgin seated in the lap of St Anne, bending forward to hold her child who had half escaped from her embrace to play with a lamb upon the ground. The description answers exactly to the composition of the celebrated picture of the Virgin and St Anne at the Louvre. A cartoon of this composition in the Esterhazy collection at Vienna is held to be only a copy, and the original cartoon must be regarded as lost. But another of kindred though not identical motive has come down to us

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text:
Author:Alexander Fisher

Works

 * (in part)

title: Author:Alexander Fisher


text:
User:Jdcollins13

Jdcollins13

title: User:Jdcollins13


text: Red Riding Hood (1931 film)

title: Red Riding Hood (1931 film)


text:
Executive Order 13576

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to cut waste, streamline Government operations, and reinforce the performance and management reform gains my Administration has achieved, it is hereby ordered as follows:

, June 13, 2011. [FR Doc. 2011–15181 Filed 6–15–11; 11:15 am] Billing Code 3195–W1–P

title: Executive Order 13576


text: Author:Frederick Vincent Brooks

title: Author:Frederick Vincent Brooks


text: Index:Letter from B. Henry Latrobe, Architect (1800).djvu


text:
Life (Coates, "Thou art more ancient than the oldest skies")

 * "Life" from Lippincott's Monthly Magazine 44 (July 1889)
 * "Life" from Poems (1898)
 * "Life" from Poems I (1916)


text:
Life (Coates, "Before we knew thee thou wert with us; ay")

 * Life from The Century Magazine V. 46 No. 6 (Oct 1893) p. 839.
 * Life from Poems (1898)
 * Life from Poems I (1916)


text:
Author:Stuart Pratt Sherman

Works

 * Matthew Arnold: How to Know Him (1917)
 * On Contemporary Literature (1917)

Novels

 * My Dear Cornelia (1924)

Essay collections

 * Americans (1922)
 * The Genius of America (1923)
 * Points of View (1924)
 * Critical Woodcuts (1926)

As editor

 * John Masefield (c. 1929)
 * The Cambridge History of American Literature

Individual essays

 * "American Style" (1924)
 * "Anatole France" (1926)
 * "Andrew Carnegie" (1922)
 * "An Apology for Essayists of the Press" (1924)
 * "Barrett Wendell" (1926)
 * "Ben Hecht and the Supermen" (1926)
 * "Boswell on His Own Hook" (1926)
 * "Brander Matthews and the Mohawks" (1924)
 * "Brigham Young" (1926)
 * "Chekhov, Chekhovians, Chekhovism" (1926)
 * "A Conversation on Ostriches" (1923)
 * "D. H. Lawrence Cultivates His Beard" (1926)
 * "The Disraelian Irony" (1924)
 * "Don Marquis, Poet" (1926)
 * "Education by the People" (1923)
 * "Ellen Glasgow" (1926)
 * "The Emersonian Liberation" (1922)
 * "Evolution in the Adams Family" (1922)
 * "Floyd Dell on the Coast of Bohemia" (1926)
 * "For the Higher Study of American Literature" (1924)
 * "Forty and Upwards" (1924)
 * "Franklin and the Age of Enlightenment" (1922)
 * "The Genius of America" (1923)
 * "George Sand and Gustave Flaubert" (1924)
 * "George Washington as Diarist" (1926)
 * "H. G. Wells" (1926)
 * "H. L. Mencken as Liberator" (1926)
 * "Hawthorne" (1922)
 * "An Imaginary Conversation With Mr. P. E. More" (1922)
 * "Interpreting Jesus" (1926)
 * "Joaquin Miller" (1922)
 * "Joyous Things" (1925)
 * "The Known Soldier" (1926)
 * "Laurence Sterne" (1926)
 * "Literature and the Government of Men" (1923)
 * "Llewelyn Powys" (1926)
 * "Mandeville on the Seamy Side of Virtue" (1926)
 * "Mr. Brownell on the Quest of Perfection" (1926)
 * "Mr. Mencken, the Jeune Fille, and the New Spirit in Letters" (1922)
 * "Mr. Tarkington on the Midland Personality" (1924)
 * "A Note on Carl Sandburg" (1922)
 * "A Note on Gertrude Stein" (1924)
 * "On Falling in Hate" (1924)
 * "On Falling in Love" (1924)
 * "Oscar S. Straus" (1924)
 * "Oscar Wilde" (1926)
 * "Pierre Loti and Exotic Love" (1926)
 * "The Point of View in American Criticism" (1923)
 * "R. L. S. Encounters the "Modern" Writers on Their Own Ground" (1926)
 * "Roosevelt and the National Psychology" (1922)
 * "Rose Macaulay and Women" (1926)
 * "Samuel Butler" (1924)
 * "Sherwood Anderson's Tales of the New Life" (1926)
 * "The Shifting Centre of Morality" (1923)
 * "The Significance of Sinclair Lewis" (1924)
 * "The Superior Class" (1923)
 * "Towards an American Type" (1924)
 * "Tradition" (1922)
 * "Unprintable" (1924)
 * "Vocation" (1923)
 * "W. C. Brownell" (1924)
 * "Walt Whitman" (1922)
 * "What Is a Puritan?" (1923)
 * "Where There Are No Rotarians" (1924)
 * "Willa Cather and the Changing World" (1926)
 * "William Osler" (1926)

Individual poems

 * "Kaiser and Councillor" (1917)

Works about Sherman

 * "Stuart Pratt Sherman" (1926), a poem by Anna Shattuck Palmer

title: Author:Stuart Pratt Sherman


text: Talk:United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense/Archive 1


text:
The Autocrat of the Breakfast-Table

First published in instalments in The Atlantic Monthly between 1857 and 1858.

 * The Autocrat of the Breakfast-Table, illustrated by Augustus Hoppin (1858)
 * The Autocrat of the Breakfast-Table, illustrated by Howard Pyle, (1894) wikidata commons

title: The Autocrat of the Breakfast-Table


text:
Page:Diplomacy revealed.djvu/30

Concentration of British Fleet in North Sea. Lord Fisher, First Sea-Lord, and Sir Philip Watts, Chief Constructor at the Admiralty, design the Dreadnought…… …… January-February.

Russian defeats by Japan. Port Arthur surrendered (January), Annihilation of Russian Fleet (May 27)……… January-June Massacres and Revolutionary movements in Russia………January-October The Kaiser pays a visit to Tangier and informs a deputation of Moroccan notable s that he looks upon the Sulton of Morocco as an independent Sovereign………… March 31. British Imperialist Press describes the visit as a challenge to the Anglo-French Entente and denies that Germany has any right to concern herself with the future of Morocco……… April.

Germany presses for another International Conference on Morroco following the precedent set by the Madrid Convention of 1880, British and French diplomacy resist a Conference……… ………April. The Sultan of Morocco invites the Powers Signatory to the Madrid Convention to a Conference…… ………May 30.

The British Governmcnt informs the Sultan that it will be noparty to a Conference. The Times denounces a Conference and attacks Germany and the Kaiser with great violence…… ……June. M. Deleassé, French Foreign Minister, fails to carry his colleagues with him in his opposition to a Conference and resigns... June.

M. Deleasse is interviewed by Le Gaulois, and forehadows the annihilation of Germany's trade and shipping through an Anglo-French naval coalition…………… July 12. Anglo-Japanese Alliance………… August. Treaty of Portsmouth between Russia and Japan.. September.

First steps towards Anglo Russian understanding………… Autumn. The French reactionary Press publish accounts purporting to describe the proceedings at the last Cabinet meeting of M. Delcassé with his colleagues (June) in the course of which the former is said to have communicated assurances of a British seizure of the Kiel Canal and a landing on German soil in the event of a Franco-German war over Morocco. Substantial accuracy of these revelations confirmed by Jaurès………………October.

First Dreadnaught officially laid down…………… October.

title: Page:Diplomacy revealed.djvu/30


text:
Gordon, George

 * articles in the Dictionary of National Biography:

title: Gordon, George


text:
Richard

 * articles in the Dictionary of National Biography:

title: Richard


text:
Russell, William

 * articles in the Dictionary of National Biography:

title: Russell, William


text:
Arkansas v. Tennessee

 * Arkansas v. Tennessee (246 U.S. 158)
 * Arkansas v. Tennessee (247 U.S. 461)
 * Arkansas v. Tennessee (269 U.S. 152)
 * Arkansas v. Tennessee (271 U.S. 629)
 * Arkansas v. Tennessee (310 U.S. 563)
 * Arkansas v. Tennessee (311 U.S. 1)
 * Arkansas v. Tennessee (312 U.S. 664)
 * Arkansas v. Tennessee (389 U.S. 1026)
 * Arkansas v. Tennessee (397 U.S. 88)
 * Arkansas v. Tennessee (399 U.S. 219)

title: Arkansas v. Tennessee


text: Talk:Arkansas v. Tennessee

title: Talk:Arkansas v. Tennessee


text:
Page:Travels to Discover the Source of the Nile - In the Years 1768, 1769, 1770, 1771, 1772, and 1773 volume 2.djvu/377

 were to devote to destruction, or, if possible, keep possession of it.

was governor of Gojam; the king had sent Sela Christos to his assistance, and was intending to follow with another army himself. In the mean time, the passes through which the Galla used to enter were all lined with men, and every preparation made to receive them.

barbarians advanced to the Nile in multitudes never seen before; and, finding the province perfectly on its guard, they feigned a panic, or disagreement among themselves, retired in seeming confusion, and dispersed, some, as it was said, to their own homes, and some to an expedition against Narea. This in reality had often happened; but now it was only a stratagem; for they all assembled in their own country Bizamo, of which the Abyssinians had no intelligence. Buco, thinking he was free of them for that year, disbanded his troops, or detached them to other services; Sela Christos did the same; neither did Socinios advance with his army.

that interval of weakness, news were sent to Buco that the Galla had passed the Nile. Upon which he advanced with 1000 foot and 200 horse, believing that it was some small part of that army which he thought had some time before been dispersed. After hearing mass with great devotion, and receiving the sacrament, in passing through a thick wood he was assaulted by the Galla. Being a man, brave in his own person, and exceedingly well-trained to arms, he fought so successfully, and so encouraged his men by his example, that he cut that body of Galla


text:
Bridge Company v. United States/Dissent Miller

MR. JUSTICE MILLER.

I dissent from the decree of the court in this case, and as I cannot agree to all the grounds on which my brother Field dissents, I will state very briefly the reasons which have seemed to me to require the reversal of the decree of the Circuit Court.

Congress gave its assent in the most solemn form, by the resolution of 1869, to the erection of a bridge over the Ohio River by the appellant company, the character of which was described in the resolution. It reserved the right to withdraw the assent thus given in case the free navigation of the river should at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct necessary modifications and alterations of said bridge. The Circuit Court finds that up to the third day of March, 1871, the bridge company had proceeded in the erection of their bridge, 'in all respects constructing the same so as substantially to comply with the provisions of the law relating thereto.'

On that day Congress passed the act under which this suit is brought; and it is upon the construction of this act in connection with the resolution of 1869 that the decision of this case must turn.

It will be observed that the resolution reserved to Congress a right to interfere and assert its power only in case the bridge of the appellant should at any time substantially and materially obstruct the free navigation of the river; and, in that event, the reservation was that Congress might withdraw the assent so given to the erection of the bridge, or direct the necessary modifications and alterations of said bridge. It is not necessary to inquire whether Congress could do both these things or not, for it did not, as I understand the language of the act of March 3, 1871, c. 121, withdraw or intend to withdraw its assent previously given.

It did exercise the alternative power given by the joint resolution, and 'direct the necessary modifications and alterations of said bridge.'

The legislation by which this is done is the fifth and last section of an act making appropriations for the service of the Post-Office Department.

It is important to observe that it contains no declaration that the bridge, as then constructed in process of construction, would either partially or substantially obstruct the navigation of the Ohio River, nor does this court base its decree on the existence of that fact. Nor do counsel in the argument before us insist that this proved, or that it was a necessary condition to the exercise of the power which Congress assumed in passing the statute requiring alterations in construction of the bridge, costing over $200,000.

Why did not Congress declare as a reason for the exercise of this power that the bridge as originally authorized by it was or would be an obstruction to navigation? and why did it not content itself with making that declaration and withdrawing its assent, as it would then have a right to do?

The best answer to this question, the most reasonable one to be made, and the one most consistent with the evidence in this record, is that either the fact did not exist, or was not so apparent, that Congress was willing to found any action on it.

But Congress, with this view of that question, and entertaining also a just view of its powers and obligations as regards the appellant and the bridge, determined to exercise such power as it had, for the purpose of changing the structure from a drawbridge, to a bridge so high above the water that no draw was necessary.

It did this; but in the same section which prescribed this change and forbade the company to proceed in any other mode of construction, it provided equitable relief for the injury which this somewhat arbitrary act of power inflicted on the Bridge Company.

I repeat that it was competent for Congress to have declared that the bridge, as it was in process of construction, had proved to be a substantial and material obstruction to the free navigation of the river, and for that reason the assent of Congress to its erection was withdrawn. Or that it would be such an obstruction unless certain modifications of the plan were made, which Congress could prescribe, and require them to be made. But it did neither. It based no action on the assumption that the bridge was or would be an obstruction to navigation; but it determined to change the bridge from a low bridge with a draw, to a high bridge without a draw. The difference in these two is well known to every one who has travelled over our Western rivers, and I myself am familiar with no less than ten drawbridges across the Mississippi built under acts of Congress, which are not substantial or material obstructions to the navigation of that great river.

Congress, therefore, never intended to act on the reservation contained in the resolution. No reference is made to that resolution in the act of 1871 requiring this total change of plan.

Nothing is more reasonable, therefore, than that Congress, resorting its high prerogative of requiring a structure which would not only be no substantial or material obstruction to navigation,-words well understood,-but one which would impose no delay in passing it, nor interfere in the slightest possible manner with navigation, should see that equity and justice required compensation for the loss inflicted by this change.

It did see this, and provided for the situation. Until the structure was completed, no one could tell the cost of the changes required. When completed, the safest tribunal, as Congress thought, to determine this was a court. And that the court might not be restricted by the rigid rules of a court of law, it referred the matter to a court of equity, with instructions to proceed as in other cases in equity. It required the court to determine 'the actual and necessary costs and expenditures reasonably required to be incurred in making the changes ordered,' and it instructed the Secretary of the Treasury to pay the amount so found.

It required the court to ascertain, 'first, whether the bridge, according to the plans on which it has progressed at the passage of this act, has been constructed so as to substantially comply with provisions of law relating thereto.' The court found that the bridge was in conformity to law, including, of course, the joint resolution giving the assent of Congress. 'Second, the liability, if any there be, of the United States to said company by reason of the changes by this act required.'

The whole argument of the opinion of the court is founded on the potentiality of this, 'if any there be.' And the whole scheme and purpose of the joint resolution, its assent with qualified power of withdrawal, the failure of Congress to declare the existence of the condition on which this right of withdrawal was to be exercised, the fact that the law required the court to find whether the appellant had proceeded according to law, and that the court found it had so proceeded; the great loss which the appellant was compelled to bear, and the reference of the whole matter to a court of equity, are all ignored, that we may throw ourselves back on the general and absolute power of Congress, over navigable waters, to defeat this eminently just claim for losses, growing out of the exercise of that power. It is impossible for me to believe that Congress went through all this tedious legal machinery to have the court decide upon its right to exercise such a power without responsibility. It is not the habit of that body to refer intentionally the question of its constitutional power to the courts of the country.

Nor is such construction of the words 'if any there be' necessary. There were two contingencies in which Congress might have acted, as it did, without incurring any just obligation to make compensation. One of these was that the bridge might not have been built in conformity to the terms of the joint resolution, and in that event the company was in no condition to complain of the action of Congress requiring a change. The act required this fact to be ascertained by the court, and it evidently meant that no damages should be awarded unless it was found that the law was complied with.

Congress might, also, while declining to ascertain for itself whether the bridge, as authorized, was likely to prove a substantial and material obstruction to navigation, have made compensation for the change they ordered to depend upon the existence or non-existence of that fact, nd left it to the court to determine.

This court refuses to inquire into this latter question, and notwithstanding the fact, which the court was expressly required to find, is found in favor of the appellant, it proceeds on what I think is a fallacious view of the statute, namely, that Congress intended to refer to the court the question of its constitutional power to change the character of the bridge, and it decides in favor of that power, thus disregarding the whole structure of the two acts on which the right to compensation is based.

I think Congress intended to waive that question, and in favor of justice and fair dealing to pay for the losses incurred under the very act which gave the compensation, if it was found that the bridge, as far as it had progressed, was in conformity to law, and would not be a substantial and material obstruction to navigation if completed on that plan.


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Bridge Company v. United States/Dissent Field

MR. JUSTICE FIELD.

I am not able to agree with the manjority of the court in their judgment in this case, nor in the reasons assigned for it. Their opinion proceeds upon a theory of the power of Congress over bridges crossing navigable waters to which I cannot assent. Its power to authorize the construction of such bridges not being conferred in express terms by the Constitution, must, if it exist, be deduced from the power to regulate commerce with foreign nations and among the several States. This latter power authorizes Congress to prescribe rules by which commerce in its various forms may be conducted between our people and those of other countries, and between the people of different States; and also to adopt measures to facilitate and increase it. When the Constitution was adopted, commerce with foreign nations and even between the several States was carried on principally by means of vessels. Its regulation, therefore, required such control over our harbors, bays, and navigable streams connecting them or different States, as might be necessary to keep navigation free from unnecessary obstructions; and might legitimately extend to making such improvements as would facilitate the passage of vessels, render their anchorage safe, and expedite the discharge of their cargoes and the landing of their passengers and crews. To this extent its power over navigable waters goes, under the commercial clause; no further. Unless, therefore, the free navigation of the public waters is impeded by what a State may do or permit, Congress cannot interfere with its action. And what is meant by their free navigation I shall hereafter explain. The doctrine of a paramount power in Congress over bridges crossing navigable streams-either to authorize their construction, or regulate them, that is, control them when constructed-derives no support from its power to protect the free navigation of such streams. If a bridge, for example, built under the law of a State, should cross a navigable stream, at so high a point, and in such a way, as in no manner to obstruct its free navigation, Congress could not interfere with the structure. Its permission would not authorize the building, nor its command authorize the removal, of the bridge. And while Congress may declare that bridges of particular height and dimensions shall not be deemed an obstruction to the free navigation of the streams, it cannot interfere with bridges of a different size and character, unless they prove to be an impediment to such navigation.

Of course, should Congress undertake the construction of a road for the postal service, or other national purposes, it might authorize the erection of a bridge over navigable streams, to connect the road on opposite sides. But it is not of such works, or of bridges connecting them, that we are speaking; but of bridges built under the law of a State, and of the power which Congress has to interfere with and control them.

This view of the limits of the power of Congress will be more clearly apparent, if was consider it in connection with the construction of docks, wharves, and piers. Some of our bays and harbors ar miles in width. Such is the size of the bays of New York and of San Francisco; and some of the streams upon which piers and wharves are built, like the Mississippi and the Hudson, are over a mile in width. The several States own the soils under tide-waters within their limits. Speaking on this subject with reference to lands under the tide-waters of the bay of San Francisco, this court said: 'Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tide-waters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the general government.' Wever v. Harbor Commissioners, 18 Wall. 57. The same doctrine was previously asserted in Pollard's Lessee v. Hagan, 3 How. 212; in Martin v. Waddell, 16 Pet. 367; in Mumford v. Wardwell, 6 Wall. 423, 436; and subsequently in McCready v. Virginia, 94 U.S. 391. The State of California, exercising her right of disposition of such soils, granted in 1851 to the city of San Francisco a large tract of land covered by the tide-waters of the bay; and since then the tract has been filled up, and wharves, piers, streets, and blocks of buildings of the most permanent and costly character have been constructed upon it. The bay being miles in width, its free navigation is in no way impeded by the new blocks of buildings and streets, where vessels once floated and cargoes were discharged.

Now, the control of Congress over the bay is as complete and unrestricted as over the navigable streams of the State. Could it in the exercise of its commercial power, that is, in its control over navigation, direct the destruction of the wharves, the buildings, and streets, which have been built where, in 1850, the tide-waters of the bay flowed? I doubt whether any jurist could be found who would hazard his reputation by giving an affirmative answer. And why not? Simply because until the free navigation of the bay for purposes of commerce is impeded, Congress has no power to interfere with the buildings and wharves constructed.

There are wharves and piers constructed, under State authority, at New York City, where the waters of the Hudson once flowed. There are wharves and piers in all our bays and harbors which are built in their waters. But as these structures do not interfere with the free navigation of the river in the one case, nor of the bays and harbors in the other cases, no judge or jurist has ever ventured to assert a power in Congress to order their removal at its pleasure; and simply because the right of interference on its part does not arise until the free navigation of the waters is obstructed. On what possible ground, then, can Congress order the removal of bridges built over navigable streams, under authority of the States, when they do not interfere with the free navigation of the streams? With the most careful consideratrion I can give to the subject I am unable to find any. To me it seems clear that no such arbitrary power exists.

The power of the State over its internal commerce must also be considered in treating of this subject. While the Constitution vests in Congress the power to regulate commerce among the several States, it leaves with each the regulation of its internal commerce. 'Comprehensive,' says Mr. Chief Justice Marshall, 'as the word 'among' is, it may be very properly restricted to that commerce which concerns more States than one,' and 'the completely internal commerce of a State, then, may be considered as reserved for the State itself.' Gibbons v. Ogden, 9 Wheat. 1, 195. The jurisdiction of the State over the navigable waters within its limits, so far as may be necessar for the regulation of its internal commerce, is as complete as the jurisdiction of Congress over them for the regulation of inter-state or foreign commerce. On this subject we said, in County of Mobile v. Kimball: 'The States have as full control over their purely internal commerce as Congress has over commerce among the several States and with foreign nations; and to promote the growth of that internal commerce, and insure its safety, they have an undoubted right to remove obstructions from their harbors and rivers, deepen their channels, and improve them generally, if they do not impair their free navigation, as permitted under the laws of the United States, or defeat any system for the improvement of their navigation provided by the general government. Legislation of the States, for the purposes and within the limits mentioned, does not infringe upon the commercial power of Congress.' 102 U.S. 691, 699.

It follows, I think, from what has been said, that the position of the majority of the court, as to the paramount power of Congress over bridges crossing navigable streams, is not tenable. Congress cannot invade the rights of a State, nor can a State impede the exercise of the just powers of the Federal government. The conclusion I draw is, that a bridge constructed by the authority of a State, if it does not interfere with the free navigation of the stream, is a lawful structure, and can neither be taken nor destroyed by Congress or by the State, except as other private property may be thus taken, that is, for public purposes upon making just compensation.

It must also be borne in mind that the power to regulate commerce with foreign nations and among the several States, extends to such commerce on land as well as to that on navigable waters. There are highways on land in every State, on which a far greater commerce, both inter-state and foreign, is conducted, than that which is borne upon its navigable waters. Congress can require that this commerce shall be as free from unnecessary obstruction as that on navigable waters connecting two or more States or leading to the sea. There is nothing in the Constitution which in any respect distinguishes the regulation it may exercise in either case. Its power, in all its extent and with all its limitations, is the same in both. The fact that navigable waters are natural highways, and roads, railways, and canals are of artificial construction, does not affect the power. That is one of regulation of inter-state and foreign commerce by whatever channels conducted. If bridges crossing natural highways cannot be constructed without the consent of Congress, because it is vested with the power to regulate commerce with foreign nations and among the States, for like reason bridges cannot be constructed without such consent over artificial highways on land. The argument for the necessity of the consent in the one case is equally good in the other, and is equally unsound in both. In nearly every county of every State, bridges have been constructed under State authority over railways,-the great highways of commerce in modern times,-and it has never been suggested that the consent of Congress to their construction was at all necessary.

Nor do I find in the previous decisions of this court any recognition of a power in Congress to authorize the construction of bridges over navigable streams within or bordering on the States, in the sense that its permission will justify their construction, and that without it such construction would be unlawful,-excepting, of course, bridges which are parts of works undertaken for national purposes,-or of a power to regulate them, that is, to control them, after they are constructed. There are expressions in the opinions of the judges in the Wheeling Bridge Case, in the 18th of Howard, that, under the power to regulate commerce, Congress may declare what shall and shall not be deemed in judgment of law an obstruction to navigation. But these expressions, in their generality, were not called for by the case efore the court. That only called for a dtermination of the question whether a structure adjudged by the court to be unlawful as an obstruction to the navigation of the river could afterwards be legalized by Congress. The court held that it could be legalized, which amounted to no more than declaring that it should not thereafter be treated as interfering with the public right of navigation of the river, so far as that right was under the protection of Congress. This is a very different thing from asserting a power to declare that a structure, lawful when erected, and in no way interfering with the navigation of the river, is an unlawful structure, removable without compensation to the owner. I cannot admit that there is any such arbitrary power under our government. I find no warrant for it in the Constitution; on the contrary, all the guarantees which that instrument contains for the security of property negative its existence. Yet out of this assertion of a power to legalize a structure, which without such sanction would be deemed an obstruction to navigation, has grown up the doctrine of an independent power in Congress to authorize the construction of bridges over navigable streams without the permission of the States, and to control them when constructed. In this we are furnished with a striking illustration of the facility with which power is assumed from expressions, loosely or inadvertently used, apparently recognizing its existence. From the use of the word 'assent' to the erection of a bridge over a navigable river, or the declaring of one already erected a lawful structure, the transition has been easy and natural to the assumption of an affirmative power in Congress to authorize, independently of the action of the States, the construction of such bridges, and to control them. From the authorities cited, and the reasons assigned, it is evident that Congress possesses no such power. In the Wheeling Bridge Case, Mr. Justice Nelson, who delivered the prevailing opinion said: 'The bridge had been constructed under an act of the legislature of the State of Virginia; and it was admitted that act conferred full authority upon the defendants for the erection, subject only to the power of Congress in the regulation of commerce.' 18 How. 430. Mr. Justice McLean, while dissenting from the asserted power of Congress to declare a bridge to be a lawful structure, which had been adjudged by the court to be a public nuisance as an obstruction to navigation, spoke with emphasis against the existence of any authority in Congress to construct bridges, and, of course, to authorize their construction, and his views do not appear to have met with any dissent from the other judges. 'If,' said he, 'under the commercial power, Congress may make bridges over navigable waters, it would be difficult to find any limitation of such a power. Turnpike-roads, railroads, and canals might on the same principle be built by Congress. And if this be a constitutional power, it cannot be restricted or interfered with by any State regulation. So extravagant and absorbing a Federal power as this has rarely, if ever, been claimed by any one. It would, in a great degree, supersede the State governments by the tremendous authority and patronage it would exercise. But if the power be found in the Constitution, no principle is perceived by which it can be practically restricted. This dilemma leads us to the conclusion that it is not a constitutional power.'

Such, also, has been the uniform doctrine of the Supreme Courts of several States declared by judges, some of whom were justly distinguished for their learning and ability. Thus, in The People v. Rensselaer & Saratoga Railroad Co., in the Supreme Court of New York, Chief Justice Savage, in delivering its opinion, said: 'I think I may safely say that a power exists somewhere to erect bridges over waters which are navigable, if the wants of society require them, provided such bridges do not essentially injure the navigation of the waters which they cross. Such power certainly did exist in the State legislatures, before the delegation of power to the Federal government by the Federal Constitution. It is not pretended that such a power has been delegated to the general government, or is conveyed under the power to regulate commerce and navigation; it remains, then, in the State legislatures, or it exists nowhere. It does exist, because it has not been surrendered any farther than such surrender may be qualifiedly implied; that is, the power to erect bridges over navigable streams must be considered so far surrendered as may be necessary for a free navigation upon those streams.' 15 Wend. (N. Y.) 113, 131.

If weight is to be given to these authorities, and to the reasons on which they rest, it must follow that the sovereignty and jurisdiction of the States over their navigable waters, which were as absolute upon the adoption of the Constitution as over their roads, still continue; except that they are to be so exercised as not to obstruct the free navigation of the waters,-so far as such navigation may be required in the prosecution of inter-state and foreign commerce. And by 'free navigation' is not meant a navigation entirely clear of obstructions. In the sense in which these terms are used by European jurists, the navigation of a river is free, when it is not entirely interrupted, and not embarrassed by oppressive duties exacted by riparian States. In this country, the navigation of a river is deemed to be free, when it is kept open for vessels cleared of such physical obstructions as would retard their passage beyond what is required for the necessary transit over the stream, and is exempt from exactions and delays other than for the enforcement of quarantine and health laws; and such occasional tolls as may be levied to meet the expenses of improving its navigation. The delays attendant upon the necessary transit of persons and property, or the enforcement of quarantine and health laws, or the exaction in exceptional cases of tolls, are not deemed to be inconsistent with the free navigation of the river in the legal sense of those terms. Thus, bridges with draws of sufficient width for the passage of vessels are allowed on rivers in Europe, like the Rhine, whose navigation is declared to be free. So, in this country, such bridges do not destroy the free character of the navigation, any more than ferries, though, like them, they may cause more or less delay to vessels. In Palmer v. Commissioners of Cuyahoga County, application was made to the Circuit Court of the United States, sitting in Ohio, for an injunction to prevent the construction of a drawbridge over the Cuyahoga River, on the ground that it would obstruct the navigation of the river and injure the property of the plaintiff in its vicinity. It was founded upon the fourth article of the ordinance of 1787 respecting the Northwestern Territory, which declares 'that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said Territory, as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty therefor.' The court, refusing the injunction, said that this provision 'does not prevent a State from improving the navigableness of these waters, by removing obstructions, or by dams and locks so increasing the depth of the water as to extend the line of navigation. Nor does the ordinance prohibit the construction of any work on the river, which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass, with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the ordinance.' And again: 'A drawbridge across a navigable water is not an obstruction. As this could not be a work connected with the navigation of the riv r, no toll, it is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the draw; and as such a work may be very important in a general intercourse of the community, no doubt is entertained as to the power of the State to make the bridge.'

In the Wheeling Bridge Case, the bridge was held to be an unlawful obstruction because it entirely prevented the passage of steam vessels with high chimneys; and the court ordered that it should be elevated in a manner, and to an extent indicated, so as to afford a free passage for the steamers; or that some other plan should be adopted by a day designated which would relieve the navigation from obstruction. Upon a suggestion that the obstruction to the navigation might be avoided by making a draw in the bridge, or in some other manner equally convenient to the public and less expensive than by elevating it, the matter was referred to an engineer; and upon his report the company was allowed to make an attempt to obviate the obstruction by improving another channel of the river and constructing a draw in the bridge over it. Some slight delay would be caused by the draw, and an increased distance would have to be run in passing the new channel; but the court did not consider these circumstances as constituting a material objection to the plan. See also Cooley, Const. Lim., pp. 591-594, and authorities there cited.

The considerations to which I have referred and the authorities cited lead to a ready solution of the questions raised by the case at bar.

The construction of a bridge over the Ohio River was authorized by the legislation of Kentucky and Ohio. The legislation of Kentucky, adopted in 1868, provided that the bridge 'should be so constructed as not to obstruct the navigation of the Ohio River further than the laws of the United States authorize.' The legislation of Ohio, adopted the same year, authorized the construction of a bridge 'either with a single span or with a draw,' as the company (incorporated for that purpose) might determine; but in either case, in order that said bridge might not obstruct the navigation of said river, the same should be built in accordance with the act of Congress of July 14, 1862, or of any act that Congress might thereafter pass on the subject; which, of course, meant before the bridge was built. The only regulation of Congress to which the erection of the bridge was made subject by the States, was such as had been prescribed or might be prescribed previously to the execution of the work. The bridge was not surrendered to any further disposition or control of the general government. The companies organized under the laws of the two States for the construction of the bridge were authorized to consolidate themselves into one company. They were consolidated under the name of the Newport and Cincinnati Bridge Company.

On the 3d of March, 1869, Congress passed a resolution giving its consent to this company to erect a bridge over the Ohio River from Cincinnati to Newport, provided it be built with an unbroken or continuous span of not less than four hundred feet in the clear from pier to pier, over the main channel of the river, and in all other respects in accordance with the conditions and limitations of an act entitled 'An Act to establish certain post-roads,' approved July 14, 1862; and the resolution declared that the bridge, when completed in the manner specified, should 'be deemed and taken to be a legal structure,' and should be 'a post-road for the transmission of the mails of the United States.' It also had this clause: 'But Congress reserves the right to withdraw the assent hereby given, in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.'

The act of July 14, 1862, provided that any bridge erected under it might, at the option of the company building the same, be constructed either as a drawbridge with a pivot, or other form of draw, or with unbroken or continuous spans; and specified the width of the spans and the elevation of the bridge.

In March, 1869, the company commenced the construction of a bridge across the river according to a plan, which met all the conditions imposed by the legislation of the States and of Congress, and the work was prosecuted until March, 1871, when it was nearly completed, the actual cost then incurred being about $807,000. The whole cost, when completed at contract prices, would have been about $1,110,000. On the 3d of March of that year, while the company was in the prosecution of the work, Congress passed an act declaring that it would be unlawful for the company or any other person to proceed with the erection of the bridge without making various alterations, including a wider span and a higher elevation, which should be submitted to the Secretary of War for his approval.

The company immediately suspended work, adopted a new plan, submitted it to the Secretary of War, obtained his approval, and then proceeded with the bridge and completed it. The additional work, and the necessary changes in that already done, required by the act of Congress, caused an additional expenditure of over $300,000. The act also provided that, in the event the company made the changes, it should be lawful for it to file a bill in equity against the United States, in the Circuit Court for the Southern District of Ohio, which should have jurisdiction to determine, first, whether the bridge, according to the plans on which it had progressed at the passage of the act, had been constructed so as substantially to comply with the provisions of law relating thereto; and, second, the liability of the United States, if any there were, to the company, by reason of the changes required; and if the court should determine that the United States were so liable, and that the bridge was so being built, then the court should further ascertain and determine the amount of the actual and necessary cost and expenditures reasonably required to be incurred in making the changes in the bridge and its approaches, in excess of the cost of building the bridge and approaches according to the original plan. The court was further authorized and required to proceed therein to final decree as in other cases in equity.

Under this act the present bill was filed, and it was clearly shown at the hearing that when the act was passed the bridge had been constructed substantially in compliance with all the provisions of law in relation thereto; that so far as constructed it did not materially obstruct the navigation of the river, and would not have done so had it been completed according to the original plan. Yet the court below held, and this court sustains its ruling, that for the enormous expenditures forced upon the company the United States are in no way responsible. This court thus, in effect, decides that the power of Congress over all structures crossing navigable streams is absolute; and that it can change or remove them at its pleasure, without regard to their effect upon the free navigation of the streams, and without compensation to the owners.

I do not think that the assent of Congress to the erection of the bridge was at all essential to its character as a lawful structure. That depended upon the legislation of Kentucky and Ohio, and upon the contingency of the bridge not interfering with the free navigation of the river. The assent of Congress, as already stated, only removed all ground of complaint of the structure as interfering with the public right of navigation, so far as that right was under the protection of the Federal government. No one could afterwards complain that the bridge, if built in conformity with the directions specified, constituted a public nuisance, because interrupting the free navigation of the river as secured under the laws of Congress, and proceed to obtain its abatement. The authority of the States to build it, oupled with the assent of Congress, if constructed in the manner prescribed, placed the work, whilst in the process of erection and when completed, beyond the reach of legal proceedings for its abatement or modification. It could not, when completed, be taken for public purposes by the general government, nor be materially changed in its form and structure whilst in the process of erection, under compulsion of the legislation of Congress, without compensation to its owners. The legislative declaration, made when it was nearly completed, that its further construction would be unlawful without a change of plan, which necessitated very costly alterations, or an abandonment of the bridge, was a taking from its owners of a portion of their work as effectually as its absolute appropriation. If not, in the strict constitutional sense, a taking of private property for public uses, it was an enforced expenditure of labor and materials by the company, not required by the work undertaken or the conditions on which assent to its construction had been given; and for such labor and materials the government should, on every principle of justice, indemnify the company. A legislative decree commanding such an expenditure is within the spirit, if not the letter, of the constitutional provisions which inhibit depriving one of his property without due process of law, and taking it from him without compensation. The wrong inflicted is as great in the one way as in the other. As the provisions were designed to secure the individual from the arbitrary spoliation of his property, their purpose could be readily evaded if a special act could exact for the protection of his property an expenditure of money or labor, which was neither exacted when the property was acquired, nor permitted by the terms of its acquisition.

This view was taken by the Court of Appeals of Virginia, in Crenshaw v. Slate River Company, reported in 6th Randolph. There it was held that after a mill had been established and a dam erected according to a law granting to the mill-owner the use of the water for grinding, a subsequent act of the legislature, which imposed on him the burden of erecting locks through his dam, keeping them in repair, and giving them attendance so as to admit the passage of boats, and on his failure, vested in a company the power to abate the dam as a nuisance, without full indemnification and equivalent for the injury thus done to his vested rights, was contrary to the Constitution of the State, and void, as a taking of private property for a public use without compensation.

There are many ways of taking property other than by occupation of appropriation, which are within the constitutional inhibition. If its beneficial use and enjoyment are prevented under the sanction of law, it is taken from him as effectually as though the title were condemned. Such is the purport of the decision in Pumpelly v. Green Bay Company (13 Wall. 166), a decision which has attracted much attention from its enlarged views of the redress afforded by the constitutional provision for injuries to property effected under authority of law, which permanently and materially impair its value. It was there held that the backing of the water of a river in Wisconsin by a dam authorized by law, so as to overflow the land of an individual, thus destroying its usefulness to him, was a taking of the property within the meaning of the Constitution. Mr. Justice Miller, in delivering the opinion of the court, very justly observed that 'it would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of re l property to the uses of the public, it can destroy its value extirely, can inflict irreparable and permanent injury to an extent,-can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.' It is not necessary, however, in order to charge the government with the expenditures forced upon the company, to rely upon this provision of the Constitution, further than to show the general spirit which should control the government in its legislation affecting the property of individuals. There is a general principle of justice pervading our laws, and the laws of all free governments, which requires that whoever unlawfully and wrongfully imposes upon another the necessity of an unusual expenditure of money or labor or materials for the protection and preservation of his property, shall make complete indemnity for the expenditure. The principle applies as fully to the acts of the government as to those of individuals; and wherever suits can be brought in the tribunals of the country, such indemnity can be enforced. Here the government waives exemption from suit which its soverign character gives, and submits the question of its liability to the judgment of its tribunals, thus admitting a readiness to indemnify the owners of the bridge, if it has disregarded its pledge and dealt unfairly with them in the premises.

The resolution of Congress giving its consent to the erection of the bridge specified its character and form, and the right to withdraw the consent or to direct necessary modifications and alterations of the bridge was reserved to be exercised only in case the free navigation of the river should at any time be substantially and materially obstructed by the bridge. The reservation clause is to be read as though written thus: 'But Congress reserves the right to withdraw the assent hereby given [or to direct the necessary modifications and alterations of said bridge] in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution.' The right to withdraw the assent or to direct alterations was thus made to depend upon the same contingency; and the resolution amounts to a pledge of the government, that neither should be done unless the contingency happened. Congress said to the constructing company in substance thus: 'You are empowered by the States of Kentucky and Ohio to build a bridge over the Ohio River, of certain height and dimensions, provided it be so constructed as not to obstruct the navigation of the river further than the present laws of the United States authorize, and in accordance with the act of July 14, 1862. Now, we consent to the erection of the bridge, that is, we declare that, if constructed in the manner prescribed, it shall not be deemed an obstruction to the free navigation of the river; but we reserve the right to withdraw this assent, or to direct alterations to the bridge, if hereafter the free navigation of the river should be substantially and materially obstructed by it.'

The general government, through Congress, thus bound itself not to interfere with the construction of the bridge, nor with the bridge when completed, except on the contingency of its proving a material obstruction to the free navigation of the river. Such contingency had not occurred when the act directing the alterations was passed; it has never occurred. So the proofs in the case show, and independently of this circumstance, whether or not the contingency had occurred, was not a fact to be arbitrarily determined by the legislature. It was to be ascertained judic ally upon proofs and after hearing the parties, like any other disputed fact upon the establishment of which rights of property depend. This doctrine, as well as other positions advanced in this opinion, is well illustrated by the case of Commonwealth v. The Proprietors of New Bedford Bridge, 2 Gray (Mass.), 339. There the act chartering the corporation authorized the building over a navigable stream in Massachusetts of a toll-bridge with two suitable draws, which were to be at least thirty feet wide,-one on the west side of the river in the channel way, and the other on the east side in the most suitable place there. A bridge with such draws was accordingly built. A subsequent act of the legislature required the corporation to make and maintain, in lieu of one of these two draws, a new draw of not less than sixty feet in width, the westerly abutment of which was to be eight feet further to the eastward than the westerly abutment of the existing draw. The bridge proprietors, not making the changes required, were indicted for obstructing the navigation of the river by their bridge. They justified under their act of incorporation. In deciding upon their liability the court held that the original act of incorporation, when accepted, constituted a contract between them and the State, by the terms of which both parties were equally bound; that the proprietors could not, without the consent of the legislature, escape or evade any of the duties or obligations imposed upon or assumed by them under the act; nor could the legislature, without the assent of the proprietors, in any way affect or impair the original terms of the charter by annexing new conditions or imposing additional duties onerous in their nature or inconsistent with a reasonable construction of the contract; that by its terms the proprietors were to erect 'suitable draws, which were to be not less than thirty feet wide;' and that the question whether the draws already made were suitable, that is, constructed so as not unreasonably or unnecessarily to obstruct or impede the navigation of the river, was not a question to be determined absolutely by the legislature or by the proprietors, when disputed between the parties. 'Like all other matters involving a controversy concerning public duty and private rights,' said the court, 'it is to be adjudged and settled in the regular tribunals where questions of law and fact are adjudicated on fixed and established principles, and according to the forms and usages best adapted to secure the impartial administration of justice.' The same doctrine is also well illustrated in the case of Mayor of Baltimore v. Connellsville & Pittsburg Railroad Co., decided in the Circuit Court of the United States by the late Mr. Justice Grier. The charter of the Pittsburg and Connellsville Railroad Company, a corporation of Pennsylvania, contained the following provision, viz.: 'If the said company shall at any time misuse or abuse any of the privileges herein granted, the legislature may resume all and singular the rights and privileges hereby granted to such corporation.' Under this clause the legislature passed an act, in 1864, revoking and resuming all the rights and privileges granted to the company, so far as it authorized the construction of a line southwardly or eastwardly from Connellsville. But the court held that when the right to revoke was to be exercised only in case the corporation should misuse or abuse its privileges, the fact of such misuse, if denied by the corporation, should be established by competent proceedings; and that an act declaring a revocation without the establishment of such fact was unconstitutional. In giving its opinion Mr. Justice Grier said: 'If in the act of incorporation the legislature retains the absolute and unconditional power of revocation for any or no reason; if it be so written in the bond, the party accepting a franchise on such conditions cannot complain if it be arbitrarily revoked; or if this contract be that the legislature may repeal the act whenev r in its opinion the corporation has misused or abused its privileges, then the contract constitutes the legislature the arbiter and judge of the existence of that fact. But the case before us comes within another category. The contract does not give an unconditional right to the legislature to repudiate its contract, nor is the legislature constituted the tribunal to adjudge the question of fact as to the misuse or abuse.' 4 Am.Law Reg. N. S. 750.

A consciousness seems to have pervaded Congress that it was disregarding its pledge to the company, when it directed the alterations which proved so expensive, before the contingency mentioned had happened; and that it might turn out that the bridge completed as designed would not substantially and materially obstruct the free navigation of the river; and that, in that case, it would be justly chargeable with the commission of an injury to the company. For this reason, I think we may assume it intended that the court should award compensation to the owners for the alterations made, if, upon proof, it appeared that, so far as the bridge had been constructed, when they were required, the provisions of the law relating thereto had been substantially complied with; and it should also appear that, if completed as originally designed, the bridge would not have substantially and materially obstructed the free navigation of the river. Congress did not intend that heavy expenditures should be imposed by its will upon the company without at the same time offering, if they were illegally exacted, to reimburse them. Congress intended to be just, and I cannot resist the conclusion, that the court, in its decision, has defeated its intentions.


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Bridge Company v. United States/Dissent Bradley

MR. JUSTICE BRADLEY.

I dissent from the judgment of the court in this case, and will briefly state my reasons. The central reason is, that the bridge, as it stood, nearly completed when the act of March 3, 1871, c. 121, directing it to be taken down or altered, was passed, was a lawful structure, and in the lawful possession of the appellants as their private property; and, being such, I think that Congress could not constitutionally require its demolition, or reconstruction, without providing for compensation to the owners. By virtue of its plenary power to regulate commerce among the several States, as well as with foreign nations, Congress may undoubtedly require the removal of all muisances and unlawful obstructions in the navigable rivers of the United States, without giving compensation to any persons who may be incidentally affected. It also has the power to improve the navigation of such rivers; but in making or authorizing improvements, other than the removal of unlawful obstructions, it cannot take private property without complying with that clause of the Fifth Amendment to the Constitution which declares, 'Nor shall private property be taken for public use without just compensation.' This proposition would be conceded where property taken for that purpose consists of lands, houses, buildings, or other structures standing on the natural banks of a river; but I think that it is equally true where erections are made on the margin of a river, or where a bridge is constructed across it, in accordance with the laws of the State and with the consent of Congress. Such structures are lawful and are private property, entitled to the constitutional protection. That which is lawful is not a nuisance, and cannot be prostrated or removed as such without compensation.

I should not have much difficulty in holding, if it were necessary to the decision of the case, that such structures made in conformity with the laws of the State, if not prohibited by any act of Congress, and not materially interfering with navigation, would be equally lawful, and entitled to the protection of the Constitution. There is a vast amount of property of this sort in this country. The wharves which have been extended below low-water mark, the flats covered by shallow water which have been reclaimed, and the many bridges which have been erected over navi able streams, are nearly all of this class. Navigation has rarely been materially interfered with in these works, the States themselves being deeply interested in preserving it free from obstruction. It would be strange if Congress could destroy this species of property without any compensation whatever.

But the bridge in question had not only the sanction of the States of Kentucky and Ohio, which it was intended to connect, but it had also the sanction of an act of Congress. If that of the States was not sufficient to make it a lawful structure, that of Congress, in addition, certainly made it so. I cannot yield to the argument that the reservation in the resolution of 1869 made the bridge any the less lawful than it would have been if no such reservation had been made. After authorizing the bridge to be erected in the manner it was, the resolution went on to say 'that the said bridge, when completed in the manner specified in this resolution, shall be deemed and taken to be a legal structure, and shall be a post-road for the transmission of the mails of the United States;' then comes the reservation referred to, as follows: 'But Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by an bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.' The power thus reserved was merely declaratory of the power which Congress would have had without reserving it; but there is no stipulation or condition that it might be exercised without providing for compensation to the proprietors of the bridge; and inasmuch as the bridge became a lawful structure,-was, in fact, expressly declared such by the resolution of 1869,-it cannot be presumed that this reserved power was to be exercised in any other than the constitutional mode. Hence, when the act of 1871 required the bridge to be taken down, and constructed on a different plan, if constructed at all, we should expect what we find was done, that provision would be made in the same law for ascertaining the damages to which the appellants would be put by the alteration, and for the payment thereof out of the treasury of the United States. It is true that the law required the tribunal to which the matter was referred to ascertain the liability of the United States, 'if any there be;' thus qualifying the provision for compensation by a preliminary inquiry as to the government's liability. This inquiry was probably directed to be made from the fact that doubts may have existed in the minds of some members of the legislative body whether the reservation referred to did not exonerate the United States from any obligation to make compensation. In my opinion it did not. I think, therefore, that the appellant was entitled to a decree in its favor, and that the decree of the Circuit Court dismissing the bill should be reversed.


text:
Evansville Bank v. Britton Britton/Dissent Waite

MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE GRAY.

I cannot agree to so much of the judgment in this case as affirms that part of the decree below appealed from by Britton, the treasurer. 'Credits' are but one of a number of kinds of moneyed capital. They represent, in the classification of taxable property, the ordinary debts due to a person; and it has been common for so long a time in the States to measure their taxable value by their excess over like debts owing to the same person in the same right, that I cannot believe it was the intention of Congress in its limitation on the power of taxing national bank shares to require a deduction of debts from the value of shares, when such a deduction was only allowed to other persons from this one kind of moneyed capital. The law of Indiana expressly prohibits deductions from the value of any other property than credits. Ample provision is made for the taxation of all other moneyed capital at its value without deduction, the same as national bank shares. In Hepburn v. The School Directors (23 Wall. 480) this court said 'it could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt.' In that case, a tax on bank shares was sustained when, by law, mortgages, judgments, recognizances, and moneys owing on articles of agreement for the sale of lands were not taxable. I am unable to distinguish this case in principle from that. The exemption here is partial only, as it was there.


text:
Evansville Bank v. Britton Britton/Dissent Bradley

MR. JUSTICE BRADLEY.

I dissent from the judgment of the court in these and the two preceding cases, for the reason that, in my opinion, the State laws authorizing the capital stock of national banks to be taxed, without allowing any deduction for the debts of the stockholders, where such deduction is allowed in relation to other moneyed capital, are void in toto so far as relates to national banks. To hold the laws valid except as to those who are actually indebted, and actually claim the benefit of the deduction, and actually set it up in a suit brought by the bank for relief, is practically to render the condition of the act of Congress nugatory, and to deprive of its protection the national banks and their stockholders. The tax though laid on the stockholders is required to be paid by the bank itself, which must pay without deduction unless the shareholders give the bank notice of the amount of their debts. This is a most ingenious expedient to avoid such deductions altogether. The probability that not one in ten of the shareholders will ever have notice of the assessment in time to make the claim, and the natural reluctance they would have (if they had notice) to lay the amount of their debts before a board of bank officers, will effectually secure the State from claims for deduction. And that was, no doubt, the object of the law. But this unequal operation of it, in its practical effect, might not be sufficient to render it void. It is void, in my judgment, because it makes no exception, but is general in its terms, subjecting to taxation the capital stock of national banks without the privilege of deducting debts. Denying to it operation and effect as to those who desire to claim the benefit of the deduction, and giving it effect as to all others, is to tear a portion of the law out by the roots. It is not like the case where a portion of a law, which may be separated from the rest, can be declared invalid without affecting the remainder of the law; nor like the case of a general law which the legislature has power to make, but from the operation of which some individuals may have a legal or constitutional exemption, which they can plead in their defence; but it is wrong in form, wrong in toto. The legislature had no authority or power to make the capital of national banks taxable except in the same manner as other moneyed capital of the State. The practical iniquity of the law is seen in this, that it affects the value of all the stock, whoever holds it. As the law stands, it acts as a prohibition against the purchase of the stock by those who owe debts, and they constitute a considerable portion of every community. It does not help the validity of the law for us to declare that it is pro tanto void, and, in fact, make a new law for the State. Its validity must be decided by its actual form and terms. If these cannot stand, the law is void.


text: User talk:178.93.39.144

title: User talk:178.93.39.144


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User talk:Obi2canibe

Welcome
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Again, welcome! Beeswaxcandle (talk) 07:08, 14 June 2011 (UTC)

Deleted Tamil United Liberation Front 1977 General Election Manifesto
The work Tamil United Liberation Front 1977 General Election Manifesto would appear to be under copyright both as the original and as the translation, accordingly I have deleted it. If you can demonstrate to me why it is not covered by copyright in both those forms, then we can look to recover the work. — billinghurst  sDrewth  05:47, 19 June 2011 (UTC)
 * (addendum) There are other similar works that I have had to remove for similar reasons. Please review Copyright policy.  Also to note that we do not categorise our works by author, that duplicates the author page itself, so I have undone those edits. What may be of interest is something like Portal:Sri Lanka and we could even consider a similar portal for Tamil-related matters.  We link to these via the portal parameter in Template:Header and other related header templates. — billinghurst  sDrewth  06:40, 19 June 2011 (UTC)

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User talk:Jdcollins13

Welcome
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Again, welcome! Beeswaxcandle (talk) 07:10, 14 June 2011 (UTC)

Frida's Letter
Hi, we prefer to have texts as close to the original as possible, so yes leave all her spellings intact. What I usually do is add the sic template after misspellings. This indicates to other editors that this is what the original text has and hopefully avoids drive-by corrections. I'll make a note to myself that we need to mention this somewhere in the Style Guide next time we're updating it. Cheers, Beeswaxcandle (talk) 07:23, 15 June 2011 (UTC)
 * Ok, I'll add that to the code for that page, thanks so much for the advice. Jdcollins13 (talk) 19:40, 15 June 2011 (UTC)

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Page:Chesterton - A Short History of England.djvu/175

should be very much bored if we had to read an account of the most exciting argument or string of adventures in which unmeaning words such as "snark" or "boojum" were systematically substituted for the names of the chief characters or objects in dispute; if we were told that a king was given the alternative of becoming a snark or finally surrendering the boojum, or that a mob was roused to fury by the public exhibition of a boojum, which was inevitably regarded as a gross reflection on the snark. Yet something very like this situation is created by most modern attempts to tell the tale of the theological troubles of the sixteenth and seventeenth centuries while deferring to the fashionable distaste for theology in this generation or rather in the last generation. Thus the Puritans, as their name implies, were primarily enthusiastic for what they thought was pure religion; frequently they wanted to impose it on others; sometimes they only wanted to be free to practise it themselves; but in no case can justice be done to what was finest in their characters, as well as first in their thoughts, if 163


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Page:Chesterton - A Short History of England.djvu/177

THE AGE OF THE PURITANS easily turned into that heresy of a tribal pride that took even heavier hold upon the Germans. It is by such things that a civilized state may fall from being a Christian nation to being a Chosen People. But even if their nationalism was of a kind that has ultimately proved perilous to the comity of nations, it still was nationalism. From first to last the Puritans were patriots, a point in which they had a marked superiority over the French Huguenots. Politically, they were indeed at first but one wing of the new wealthy class which had despoiled the Church and were proceeding to despoil the Crown. But while they were all merely the creatures of the great spoliation, many of them were the unconscious creatures of it. They were strongly represented in the aristocracy, but a great number were of the middle classes, though almost wholly the middle classes of the towns. By the poor agricultural population, which was still by far the largest part of the population, they were simply derided and detested. It may be noted, for instance, that, while they led the nation in many of its higher departments, they could produce nothing having the atmosphere of what is rather priggishly called folklore. All the popular tradition there is, as in songs, toasts, rhymes, or proverbs, is all Royalist. About the Puritans we can find no great legend. We must put up as best we can with great literature.

All these things, however, are simply things that other people might have noticed about them; they are not the most important things, 165


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Page:Chesterton - A Short History of England.djvu/178

A SHORT HISTORY OF ENGLAND and certainly not the things they thought about themselves. The soul of the movement was in two conceptions, or rather in two steps, the first being the moral process by which they arrived at their chief conclusion, and the second the chief conclusion they arrived at. We will begin with the first, especially as it was this which determined all that external social attitude which struck the eye of contemporaries. The honest Puritan, growing up in youth in a world swept bare by the great pillage, possessed himself of a first principle which is one of the three or four alternative first principles which are possible to the mind of man. It was the principle that the mind of man can alone directly deal with the mind of God. It may shortly be called the anti-sacramental principle; but it really applies, and he really applied it, to many things besides the sacraments of the Church. It equally applies, and he equally applied it, to art, to letters, to the love of locality, to music, and even to good manners. The phrase about no priest coming between a man and his Creator is but an impoverished fragment of the full philosophic doctrine; the true Puritan was equally clear that no singer or story-teller or fiddler must translate the voice of God to him into the tongues of terrestrial beauty. It is notable that the one Puritan man of genius in modern times, Tolstoy, did accept this full conclusion; denounced all music as a mere drug, and forbade his own admirers to read his own admirable novels. Now, the 166


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Page:Chesterton - A Short History of England.djvu/179

THE AGE OF THE PURITANS English Puritans were not only Puritans but Englishmen, and therefore did not always shine in clearness of head; as we shall see, true Puritanism was rather a Scotch than an English thing. But this was the driving power and the direction; and the doctrine is quite tenable if a trifle insane. Intellectual truth was the only tribute fit for the highest truth of the universe; and the next step in such a study is to observe what the Puritan thought was the truth about that truth. His individual reason, cut loose from instinct as well as tradition, taught him a concept of the omnipotence of God which meant simply the impotence of man. In Luther the earlier and milder form of the Protestant process only went so far as to say that nothing a man did could help him except his confession of Christ; with Calvin it took the last logical step and said that even this could not help him since Omnipotence must have disposed of all his destiny beforehand; that men must be created to be lost and saved. In the purer types of whom I speak this logic was white-hot and we must read the formula into all their parliamentary and legal formulæ. When we read, "The Puritan party demanded reforms in the church," we must understand, "The Puritan party demanded fuller and clearer affirmation that men are created to be lost and saved." When we read, "The Army selected persons for their godliness," we must understand "The Army selected those persons who seemed most convinced that men 167