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 such monopolies were illegal in the time of James is also shown by Lord Coke's own argument and the decision in Devenant's case. In denouncing monopolies, Parliament and courts, and Coke himself, perfectly familiar with the law, confined themselves not to those which alone were admittedly illegal, but only to those whose illegality was still contested—exclusive grants by the sovereign. The contest was not at all whether lesser powers could inflict the curse of "sole sale" upon the people. It was settled long before, that they could not; but whether the sovereign power itself could still do so.

Professor Stimson seems thoroughly to establish this. But beyond this it is now settled by In re Debs, the Addyston case, and Loewe vs. Lawlor that whatever is prohibited to sovereign States is likewise and a fortiori unlawful in mere aggregations of individuals. Finally, that "monopolies," in their modern sense, hark back to their natural and original common law sense as applied to "unifications," etc. See Mr. Justice McKenna's opinion, National vs. Texas: "Unified tactics with regard to prices"—the exact results of "sole sale" seven hundred years before!

But if this be so, why should not the general rule as to "tendency" constituting the offence, be applicable? This would certainly seem worthy of consideration, especially as it makes this provision a vital and useful part of the statute? If one person or group control the whole of a necessary commodity throughout the United States,


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 there is not merely the "power and interest" necessary to create the tendency constituting illegality in other cases; but there is absolute necessity that he or it must regulate interstate transactions in that commodity. In view of the investigations of Professor Stimson, as well as the actual decision in National vs. Texas, it is not difficult to say what the ultimate conclusion will be.

In the Securities case Mr. Justice Holmes says: "There is a natural feeling that somehow or other the statute meant to strike at combinations great enough to cause just anxiety on the part of those who love their country more than money, while it viewed such little ones as I have supposed with just indifference. This notion, it may be said, somehow breathes from the pores of the Act, although it seems to be contradicted in every way by the words in detail. And it has occurred to me that it might be that when a combination reached a certain size it might have attributed to it more of the character of a monopoly merely by virtue of its size." And the test of Mr. Justice Jackson of "exclusion of others" evidently created great difficulty in Mr. Justice Holmes's mind. But if, as has been shown, the fundamental offence was "sole sale" or attempts to reach it, tendency to it; and exclusion by sovereign or other authority was but a single and, indeed, last phase of it, is not Mr. Justice Holmes's feeling fully supported by the very words of the Act? He says, at page 403: "Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act." And is not this difficulty here the result of substituting "attempts to exclude others" for the wider phrase "sole sale"? The other

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 EDITIONS

The more important editions of Dio are the following: —


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 difficulties are answered in National vs. Texas: "To contend for these extremes is to overlook the difference in the effect of actions, and to limit too much the function and power of government. By arguing from extremes almost every exercise of government can be shown to be a deprivation of individual liberty." Reading of Mr. Justice Holmes' natural feeling, I could not but think of Lord Bramwell's dictum regarding the "feelings" of great lawyers, 13 Ap. C. 12, "the four judges were great lawyers, and I believe that a great lawyer may be, as it were, instinctively right, without at the moment being able to give a good reason for his opinion." In prohibiting monopolies, and attempts at monopoly, Congress and the common law never intended or could have intended to prohibit necessary and useful things that in their nature had to be to some extent monopolies. Two towns unconnected by a railroad were certainly not forbidden to have a railroad because a railroad would, in a sense, be a monopoly. What was and has always been the evil was substituting for "competition," where that was either established or naturally and ordinarily possible, "sole sale" or "unified tactics" as to prices, and not at all to prevent the starting of a new industry. And that this was the intent of the common law and statute of James declaring it is shown by the reservation of right to grant patents for new inventions. The policy was to encourage industry, and that answers such objections. In many phases of the matter "magnitude" is, as the word implies, the very gist of it, and the dangerous measure, as in many other cases, must be found through the sound sense of the tribunal deciding it. An ordinary partnership, an ordinary


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 consolidation of two butchers, out of the thousands in New York City or the United States, can in nothing but a finespun impracticable sense, unfit for a basis of any sound jurisprudence, be said to constitute a monopoly, or a tendency to monopoly; although, without doubt, Mr. Justice Holmes was right in holding that the combination in United States vs. Swift was illegal. An "overshadowing combination" necessarily gives the power and necessary interest to inflict the evils flowing from "sole sale," while the evil may easily be totally wanting in many minor and convenient combinations which really facilitate trade. In construing every statute since Heydon's case, "what was the evil and effect" has always been carefully scrutinized. And in this matter "the evils" were "the effects" naturally flowing from the prohibited "sole sale," and not necessarily the mere method of accomplishing the prohibited thing which, however created, always and almost inevitably inflicted the evils.


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 On 3 Feb. 1832 he was collated to the second stall in Winchester Cathedral. As canon he gave very effectual assistance to [q. v.] in the work of the diocese. In 1850 he published ‘The Bible Student's Guide to the more correct understanding of the Old Testament by reference to the Original Hebrew’ (London, 4to), a second edition of which appeared in 1866 under the title ‘An English, Hebrew, and Chaldee Lexicon and Concordance to the more correct understanding of the English Translation of the Old Testament by reference to the Original Hebrew’ (London, 4to). Wilson was a considerable Hebrew scholar, and his work has not yet been superseded. He died on 22 Aug. 1873 in The Close, Winchester, and was buried on 27 Aug. at Preston Candover. In February 1830, at Godalming, Surrey, he married Maria (1794–1834), daughter of Robert Sumner, vicar of Kenilworth, and sister of John Bird Sumner, archbishop of Canterbury, and [q. v.], bishop of Winchester (Gent. Mag. 1830, i. 266). By her he had a son, Sumner Wilson, who became vicar of Preston Candover.

Besides the work mentioned he published: He edited the ‘Christianæ Pietatis Institutio’ of Alexander Nowell, London, 1817, 12mo.
 * 1) ‘D. J. Juvenalis Satiræ, cum notis Anglicis, expurgatæ,’ London, 1815, 12mo.
 * 2) ‘The Thirty-nine Articles of the Church of England, illustrated by copious Extracts from the Liturgy, Homilies, Nowell's Catechism, and Jewell's Apology, and confirmed by numerous Passages of Scripture,’ Oxford, 1821, 8vo; enlarged ed. Oxford, 1840, 8vo.
 * 3) ‘Parochial Sermons,’ Oxford, 1826, 8vo.
 * 4) ‘The Attributes of God,’ selections from Charnock, Goodwin, Bates, and Wishart, London, 1835, 8vo; republished 1836 in ‘The Christian Family Library,’ vol. xv.
 * 5) ‘The Book of Psalms, with an Exposition Evangelical, Typical, and Prophetical of the Christian Dispensation,’ London, 1860, 2 vols. 8vo.

WILSON, WILLIAM (1808–1888), Scots divine, was born in 1808 at Blawearie, Bassendean, in Berwickshire. He was educated at the parish school, and in 1825 entered the university of Edinburgh, where he took the arts and theological classes, studying under Chalmers, [q. v.], and Alexander Brunton. Licensed by the presbytery of Dumfries on 2 March 1830, Wilson was early recognised as a powerful preacher. Till 1837 he acted as a parochial missionary in Glasgow, and from 1835 to 1837 he was editor of the ‘Scottish Guardian.’ On 22 Sept. 1837 he was ordained minister of Carmyllie, Forfarshire. In the conflict which ended in the disruption, Wilson took an active part. He joined the free church and preached in a wooden building till 1848, when he was called to the mariners' church, Dundee, where he officiated till 1877. He was elected moderator of the free-church assembly on 24 May 1866, junior principal clerk of assembly in 1868, and senior clerk in 1883. On 20 April 1870 he received the degree of D.D. from Edinburgh University. In 1877 he was appointed secretary of the sustentation fund committee. He also held the office of Chalmers lecturer. He died on 14 Jan. 1888, survived by one son and five daughters. His remains were accorded a public funeral in Dundee. In 1840 Wilson married Eliza, daughter of Alexander White of Drimmietermont, near Forfar. She died in February 1860.

Wilson wrote:

Wilson also edited with a preface and notes Daniel Defoe's ‘Memoirs of the Church of Scotland,’ 1844, and contributed a preface to Sir James Stewart and James Stirling's ‘Survey of Naphtaly,’ 1845. He wrote the history of the parish of Carmyllie for the ‘New Statistical Account of Scotland,’ and contributed to the ‘Free Church Pulpit.’
 * 1) ‘Statement of the Scriptural Argument against Patronage,’ Edinburgh, 1842, 8vo.
 * 2) ‘The Kingdom of our Lord Jesus Christ,’ Edinburgh, 1859, 8vo.
 * 3) ‘Christ setting his Face towards Jerusalem,’ Dundee, 1878, 8vo.
 * 4) ‘Memorials of R. S. Candlish, D.D.,’ Edinburgh, 1880, 8vo.

WILSON, WILLIAM JAMES ERASMUS (1809–1884), surgeon, generally known as Sir Erasmus Wilson, was son of William Wilson, a native of Aberdeen, who had been a naval surgeon, and afterwards settled as a parish surgeon at Dartford and Greenhithe in Kent. Erasmus was born on 25 Nov. 1809 in High Street, Marylebone, at the house of his maternal grandfather, Erasmus Bransdorph, a Norwegian. He was educated at Dartford grammar school, and afterwards at Swanscombe in Kent, but he was


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The Anti-Trust Act, being a criminal as well as remedial statute, intent is, of course, necessary. But it is also, of course, only intent as legally defined.

As Mr. Justice Holmes so felicitously puts it in Ellis vs. United States: "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances he intentionally breaks the law in the only sense in which the law ever considers intent."

But there is another viewpoint of importance in this connection, which, in its ultimate results, becomes vital, and that is that from which the law ascertains or presumes an intent as to results flowing from the forbidden acts. It was long since said: "Thought is not triable," but quite as long ago that "actions speak louder than words;" and it may be added that a knowledge of human nature as loudly as either.

When we pass, then, from proved acts, and an inquiry as to the ends sought through them becomes necessary, the legal method is well established, though it has a duality of expression that is sometimes confusing. It may either be said that intent is conclusively presumed under certain circumstances, or that intent is of no importance whatever. But the latter expression is sometimes misleading, as, while in some cases it may be of no importance, in others it is the vital, determinative fact!

To explain this further: An act is done from which certain results naturally, reasonably, or ordinarily may


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 be expected. Then it is perfectly proper to say, as the Earl of Halsbury, L. C., does in South Wales Miners' Federation vs. Glamorgan:

"It is, further, a principle of the law, applicable even to the criminal law, that people are presumed to intend the reasonable consequences of their acts." Indeed, this presumption is so absolutely necessary that the Supreme Court has had to apply it even to the enactments of the sovereign States themselves, so interpreting their statutory acts, no matter how they themselves assert their purposes. "In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effects. * * * The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments." And, in such a case, it is equally accurate to say intent is immaterial; but this may well mislead, and has often misled where proof of intent becomes essential, as it sometimes really does in these cases.

This is best illustrated by the cases themselves. Mr. Justice Peckham says: "It is useless for the defendants to say they did not intend to regulate or affect interstate commerce. They intended to make the very combination and agreement which they in fact did make, and they must be held to have intended (if in such case intention is of the least importance) the necessary and direct result of their agreement."

So Mr. Justice Harlan says in the Securities case: "Is the motive with which a forbidden combination or


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xxxviii {|class="_tablecolhdborder" style="text-align: center"
 * -style="border: 1px solid black; border-style: none solid solid solid"
 * Parable.||Georgian.||Hebrew.||Arabic. (Halle and Razi.)||Greek.
 * style="text-align: left"|Death Trumpet||1||c. viii.||1||2
 * style="text-align: left"|The Four Caskets||2||c. viii.||2||3
 * style="text-align: left"|The Sower||3||c. x.||3||1
 * style="text-align: left"|Man in Well||4||…||4||5
 * style="text-align: left"|The Three Friends||5||c. xi.||5||6
 * style="text-align: left"|King of the Year||6||c. xiii.||6||7
 * style="text-align: left"|King and Vizier||7||c. xvi.||7||8
 * style="text-align: left"|Rich Man and Beggar's Daughter||8    ||c. xviii.||    8 ||9
 * style="text-align: left"|Man and Nightingale||9    ||c. xxi.||9||4
 * style="text-align: left"|The Tame Gazelle||10||…||…||10
 * style="text-align: left"|The Amorous Wife||   11 ||…||…||…
 * style="text-align: left"|The Demon Women||12||…||…||11
 * }
 * style="text-align: left"|King and Vizier||7||c. xvi.||7||8
 * style="text-align: left"|Rich Man and Beggar's Daughter||8    ||c. xviii.||    8 ||9
 * style="text-align: left"|Man and Nightingale||9    ||c. xxi.||9||4
 * style="text-align: left"|The Tame Gazelle||10||…||…||10
 * style="text-align: left"|The Amorous Wife||   11 ||…||…||…
 * style="text-align: left"|The Demon Women||12||…||…||11
 * }
 * style="text-align: left"|The Amorous Wife||   11 ||…||…||…
 * style="text-align: left"|The Demon Women||12||…||…||11
 * }
 * style="text-align: left"|The Demon Women||12||…||…||11
 * }

The order of the parables is here the same in the Hebrew, Arabic, and Georgian, while that of the Greek varies considerably. The absence of the last three parables in Hebrew and Arabic is simply due to the fact that they do not contain anything subsequent to the parting with Barlaam. But the variation of order in the Greek text against the unanimity of the other three versions seems to me conclusive against the mediate derivation of the Hebrew or Arabic from the Greek, which may


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 soon called upon to help in the practice of his father. At the age of sixteen he became a resident pupil with George Langstaff, surgeon to the Cripplegate dispensary, and he then began to attend the anatomical lectures given by [q. v.] at St. Bartholomew's Hospital. At his master's house he became acquainted with [q. v.] and Sir William Lawrence [q. v.], while his skill as a draughtsman and the neatness of his dissection soon attracted general attention. On the establishment of the Aldersgate Street school of medicine, under the leadership of, Wilson became one of the first pupils, gaining the prizes for surgery and midwifery in the session 1829–30. He was admitted a licentiate of the Society of Apothecaries on his twenty-first birthday, and in the following year (25 Nov. 1831) he became a member of the Royal College of Surgeons of England. In the same year Wilson was asked by Jones Quain, then professor of anatomy and physiology at University College, to become his assistant. He accepted the post, and was soon afterwards appointed demonstrator of anatomy to [q. v.] This office he filled until Jones Quain retired from University College in 1836, when Wilson established a school of anatomy, called Sydenham College, which eventually proved unsuccessful. In 1840 he lectured upon anatomy and physiology at the Middlesex Hospital, and in the same year he began to act as sub-editor of the ‘Lancet.’ He was also consulting surgeon to the St. Pancras infirmary, and on 20 Feb. 1845 he was elected a fellow of the Royal Society.

At the suggestion of [q. v.], the editor of the ‘Lancet,’ Wilson began to devote himself more particularly to the treatment of diseases of the skin, and from 1840 almost to the end of his long life the cares of an extensive practice occupied most of his time.

At the Royal College of Surgeons of England he was elected a fellow in 1843, and in 1869 he founded, at his own expense, a professorship of dermatology, endowing it with a sum of 5,000l. This chair he held from 1869 to 1877, and when he resigned it the conditions of the trust were so modified as to include the whole domain of pathology. In 1869 and again in 1883 Wilson made large and valuable presents to the museum of the College of Surgeons. He was elected a member of the council in 1870, and held office until 1884. He was vice-president in 1879–80, and president in 1881. In 1884 he was awarded the honorary gold medal of the college.

Wilson was particularly fond of foreign travel, and so early as 1828, and again in 1830, he went to Paris to attend the lectures of Cuvier and of Geoffroy Saint-Hilaire. In middle life he travelled much in the east. He became particularly interested in the study of Egyptian antiquities, and in 1877–8 he defrayed the expenses (about 10,000l.) connected with the transport of ‘Cleopatra's needle’ to London. In 1881 he received the honour of knighthood. He also filled the office of master of the Clothworkers' Company, and he was president of the Biblical Archæological Society.

He died on 7 Aug. 1884, after two years' ill-health, at Westgate-on-Sea, Kent. He married Miss Doherty in 1841, who survived him, but he left no children.

Wilson ranks as one of the first and best of the specialists in skin diseases. He found the field of dermatology almost unworked, and he toiled with such assiduity, and obtained such rewards, as soon induced a host of fellow labourers to follow in his footsteps. To Wilson's teaching we owe in great measure the use of the bath, which is so conspicuous a feature in our national life, and to his advocacy is to be attributed the spread of the Turkish bath in England. Skilful investments in the shares of gas and railway companies made him a wealthy man, and he devoted his riches to various charitable objects, for he was a distinguished freemason. He restored Swanscombe church, and he founded a scholarship at the Royal College of Music. He was a large subscriber to the Royal Medical Benevolent College at Epsom, where he built at his own cost a house for the head-master. At an expense of nearly 30,000l. he built a new wing and chapel at the sea-bathing infirmary, Margate, where diseases of the skin are extensively treated, and in 1881 he established a chair of pathology in the university of Aberdeen, where the degree of LL.D. had been conferred upon him.

After the death of Lady Wilson the bulk of his property, amounting to upwards of 200,000l., reverted to the Royal College of Surgeons of England.

A bust of Wilson, executed by Thomas Brock, R.A., stands in the new library of the Royal College of Surgeons in Lincoln's Inn Fields. A three-quarter length in oils in the robes of a lecturer at the Royal College of Surgeons of England, painted by Stephen Pearce, hangs in the hall of the Medical Society's Rooms in Chandos Street, W.

Wilson's more important works were:  ‘Practical and Surgical Anatomy,’ London, 1838, 8vo; 2nd edit. 1853; issued in America, 1844 and 1856.  ‘The Anatomist's Vade Mecum,’ London, 1840, 12mo; 2nd edit.


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 conspiracy was formed at all material when it appears that the necessary tendency of the particular combination or conspiracy in question is to restrict or suppress free competition?" etc.

On the other hand, Mr. Justice Holmes says, in the Swift case: "The statute gives this proceeding against combinations in restraint of commerce among the States and against attempts to monopolize the same. Intent is almost essential to such a combination, and is essential to such an attempt."

There is, of course, no conflict in these opinions; and reading them together there should be no danger of misunderstanding or confusion. But I have known lawyers who argued that intent was immaterial, as well as those who argued that it must be independently proved. Of course, as a rule, both were wrong, for intent is always material in some sense, though inferable from the acts themselves; while, on the other hand, there are cases where, it not being reasonably inferable from the facts of the alleged conspiracy, it is necessary in some legitimate way to establish it to constitute the offence at all.

Lord Watson states this clearly in Allen vs. Flood, 1898 A. C. 102: "The object of an act, that is the results which will necessarily or naturally follow from the circumstances, in which it is committed, may give it a wrongful character, but it ought not to be confounded with the motive of the actor. To discharge a loaded gun is, in many circumstances, a perfectly harmless proceeding; to fire it on a highway, in front of a restive horse, might be a very different matter."

This will be further considered in the next chapter.


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Author:James Walter Ferrier

Works

 * Mottiscliffe
 * (with John George Robertson)

Translations

 * George Eliot and Judaism (1878) from the German of David Kaufmann

title: Author:James Walter Ferrier


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Rh for the present be set aside in our journey to the fons et origo of the whole literature.

Thus far we are led to the conclusion that this original was in Pehlevi, and on this point there is, practically, unanimity among recent investigators. But the book, on the face of it, is propagandist, and the question arises, what religion was it whose interests it was composed to further? Dr. Kuhn declares for a Christian author, but on very slight grounds, as it seems to me. True, there is a certain amount of evidence for the existence of a Christian Pehlevi literature. True, the Nestorian Church was firmly established in East Iran. The possibility, therefore, of the Christian manipulation of the Buddha legend in that district cannot be denied. But the Barlaam book in its Pehlevi form had very little theological tendency. The theologisms of the Greek text are excrescences, and are peculiar to that version. The only trace of Christian influence to which Dr. Kuhn can point, is the parable of The Sower, to which, curiously enough, there are strong Buddhistic parallels (Carus, Gospel


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Around these terms and "competition" has been fought the chief battle in this country for the freedom of man in relation to trade.

Where a result is considered seriously detrimental it has been the uniform policy of the common law to enforce the doctrine that men should not lead or be led into temptation to bring it to pass. And, if the application of it did not originate in cases of restraints, it was certainly very early applied in them. The declaratory statute of James equally prohibits that which "tends" as that which constitutes "sole sale."

The general doctrine has never been more clearly enunciated than in the leading case of Egerton vs. Earl Brownlow, where Lord Brougham says: "But the law * * * taking security against the infirmity of human nature regards the tendency, as well as the act, and removes the motives to offending that it may not have to punish the offence."

Lord Truro, at page 199: "I repeat that what may occur in the particular instance is not the point; it is the general tendency."

And Lord St. Leonards, at page 235: "It is a dangerous power to be placed in the hands of any man with such a temptation to use it—a temptation almost irresistible. God forbid that I should say there are not men who could resist it; but the temptation is


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 xl of Buddha. I cannot think that any work, written with the express view of the propagation of the faith, would be so singularly free from all dogmatic colouring.

The existence of the Hebrew version confirms me in my belief that the original work was not intended, or regarded, as specifically religious, or, at any rate, theological. Its teaching is ascetic, it is true, but all religions have a touch of asceticism. It was for the sake of its parables, not for its theology, that the book was taken up, equally by Moslem, Jewish, and Christian writers. Now the Hebrew version is much fuller in its parables, containing no less than ten not found in the other versions. Of these, four at least can be traced back to India (Bird and Angel, The Power of Love, Language of Animals, and Robbers' Nemesis). I see no reason, therefore, why we should not go behind the Pehlevi and look for the original in its complete form, as we can certainly trace it in its elements, to India itself.


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 Relations to pre-Camhrian Merostomes.—The fragmentary remains that were described under the name of Beltina danai were referred to the Merostomata, and the genus was considered to be more or less closely related to Eurypterus and Pterygotus. All the original specimens are flattened in a calcareous shale and none of them show definite surface markings. In a collection made by Prof. Stuart Weller in the Altyn limestone in the valley of Swift Current Creek, Montana, the specimens are embedded in a very fine calcareoarenaceous matrix, and many of them show the convexity, and some, the original surface markings. One of these (illustrated on pl. 7, fig. 4), an abdominal segment, shows the convexity and general form of the segment, and the surface is more or less roughened by what appear to be depressed tubercles.

Specimens collected from about the same horizon to the north in British Columbia, and embedded in a siliceous matrix, are more flattened than those from the Altyn limestone, but they show certain definite surface characters. Two of the specimens are illustrated on pl. 7. Fig. 2 is a portion of a cephalo-thorax, with irregular transverse ridges near the posterior margin and depressed tubercles over other portions of the surface. An abdominal segment (fig. 3) shows depressed tubercles not unlike those shown by the segment from the Altyn limestone illustrated by fig. 4.

The relations of this very ancient form to the Middle Cambrian Merostomes described in this paper are very uncertain owing to the fragmentary character of all the specimens of Beltina yet discovered. Most of these fragments are quite similar to fragments of Sidneyia inexpectans where the latter is broken up and flattened in the shale, but, as a whole, the form of all the parts of Beltina thus far recognized indicates a closer relationship to the Eurypterida than to the Sidneyidae.

Body elongate, with a thin epidermal skeleton either smooth or ornamented by lines or ridges. Cephalo-thorax with lateral or marginal eyes, on the ventral side with five pairs of movable appendages; mouth posterior to a large epistoma.


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 Rh In short, I regard the literary history of the Barlaam literature as completely parallel with that of the Fables of Bidpai. Originally Buddhistic books, both lost their specifically Buddhistic traits before they left India, and made their appeal, by their parables, more than by their doctrines. Both were translated into Pehlevi in the reign of Chosroes, and from that watershed floated off into the literatures of all the great creeds. In Christianity alone, characteristically enough, one of them, the Barlaam book, was surcharged with dogma and turned to polemical uses, with the curious result that Buddha became one of the champions of the Church. To divest the Barlaam-Buddha of this character, and see him in his original form, we must take a further journey and seek him in his home beyond the Himalayas.


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 more than you are justified in laying before a man; more than you are justified in exposing him to. You are not justified in raising so fearful an issue."

The "tendency," then, which the law regards, is tendency to wrong from that which really tempts to its perpetration. Not mere possibility or power; but such possibility or power as, taking human nature as it is, supply such temptation as to create a dangerous probability of some yielding to and committing the offence.

This, then, being the doctrine, it may easily be seen that "power" without interest, or, if you please, temptation, to restrain is not necessarily illegal.

While on the one hand, under some circumstances, "power" may constitute a deadly threat to public interests, on the other it may be innocuous, or even largely beneficial. "Power," therefore, when spoken of as constituting the offence, must always be understood as power coupled with actual intent, or interest, or temptation, to restrain; but that is "tendency." And not only is "tendency" to restrain, to monopolize, denounced by the act of James, but, as Chief Justice Fuller points out in the Knight case: "All the authorities agree that, in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition."

The Knight case so strongly demonstrates the danger of holding that power alone does constitute tendency or the consequent illegality, that nothing more need be said on that subject; but that those


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Page:Dio's Roman History, tr. Cary - Volume 1.djvu/32

 BIBLIOGRAPHY

P. MEYER: De Maecenatis oratione a Dione ficta. (1891)

J. BERGMANS: Die Quellen der Vita Tiberii des Cassius Dio. (1903)

H. JAEGER: De Cassii Dionis librorum 57. et 58. fontibus. (1910)

R. FERWER: Die politischen Anschauungen des Cassius Dio. (1878)

E. LITSCH: De Cassio Dione imitatore Thucydidis. (1893)

In addition to the symbols already given for the Mss. and collections of excerpts the following abbreviations are employed in the critical apparatus: —


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 who intentionally conspire to restrain national trade are within the Act is plain, though none of their acts without such intent would have amounted to tendency. He who does, with intent of accomplishing a given result, is certainly estopped from denying that what he did tended to that which he intended that it should tend to.

Sir F. Pollock well says: "It does not lie in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence. The iniquity of such a defence is obvious in the gross examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any 'legal consequences,' the act of compliance or obedience being a crime; but no one has suggested, on this ground, any doubt that procurement is also a crime." As will be seen, an intended restraint must always be a "direct" restraint, and no matter how indirect the means of accomplishment.

To summarize: To constitute an offence within the Act there must have been either the intent to commit the offence, or to commit acts, or acquire power tending to it; but "power" alone does not constitute the offence.

Two quotations by the Chief Justice from opinions by Mr. Justice Holmes must ever be kept in view:

"If, as we must assume, the scheme is entertained, it is, of course, contrary to the very words of the statute. * * * It is suggested that the several acts charged are lawful and that intent can make no difference. But they are bound together


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 III.

.

Portuguese historian, Diogo do Conto, in describing the exploits of his nation in Asia, in 1612, had occasion to speak of Buddha, or the Budão, as he called him. After recounting his legend, he goes on to say: "With reference to this story, we have been delayed in inquiring if the ancient Gentiles of those parts had in their writings any knowledge of Josaphat, who was converted by Barlaam, who in his legend is represented as the son of a great king in India, who had just the same up-bringing, with all the same particulars that we have recounted of the life of the Budao . . . and as it informs us that he was the son of a great king in India, it may well be, as we have said, that he was the Budão of whom they relate such marvels" (Decada

xlii


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 DIO'S ROMAN HISTORY


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 as part of a single plan. The plan may make the parts unlawful. * * * The statute is directed against a series of acts, and acts of several, the acts of combining, with intent to do other acts. 'The very plot is an act in itself.' But an act, which in itself is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the constitution is sufficient to prevent the punishment of the plot by law."

The law is a practical science, and by "tendency" it means something real, something, as Mr. Justice Holmes puts it, which amounts to "dangerous probability." As he so well says (Swift case, 196 U. S. 396): "Where acts are not sufficient in themselves to produce a result which the law seeks to prevent—for instance, the monopoly—but require further acts in addition to the mere forces of Nature to bring that result to pass, an intent to bring it to pass is necessary in order to


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 Abdomen with twelve segments, the anterior nine of which have a pair of ventral appendages to which the branchiae are attached; the posterior segment has a central spatulate-shaped section that, combined with swimmerets, forms a strong caudal fin.

The description of the branchiae will be found under the description of Sydneyia, the typical genus of the Limulava.

Observations.—The sub-order Limulava differs from the Eurypterida, to which it is most nearly related, in having a large epistoma similar to that of the Trilobita; in not having a metastoma, chelate antennae, and swimming cephalic appendages; and in having a broad fan-shaped caudal fin, and branchial appendages more or less unlike the lamellar branchiae of the Eurypterida and Xiphosura.

Cephalo-thorax small, without lobes, eyes marginal; ventral side with large epistoma, five pairs of movable appendages, the gnathobases of the three posterior pairs forming organs of manducation. Abdomen twelve-jointed, the three posterior segments annular and narrow, the terminal one forming, with lateral swimmerets, a fan-like tail; nine anterior segments with a pair of ventral branchial appendages on each; the three posterior segments without ventral appendages. Surface smooth or ornamented by narrow, irregular, fine, imbricating ridges.

Body elongate, broadly oval in outline, attaining as now known a length of 17 cm., covered with a thin dorsal shield or crust, divided into a short cephalon, broad anterior abdomen, and narrow posterior abdominal portion. Cephalo-thorax transverse, short, depressed convex, as compressed in the shale, with broadly rounded frontal margin and antero-lateral angles; margins smooth. Eyes reniform and situated near the postero-lateral outer margin. Ventral side with five pairs of movable appendages. The anterior pair are large, long, simple, jointed antennae; second pair, slender and jointed; third pair with numerous spines on the front side of the joints and with variously developed chelate-like outer joints (see pl. 4) ; fourth pair, slender and jointed; fifth pair with a large basal joint, and an outer, broad joint or palp that is fringed with fine branchial setae or spines. A large epistoma is attached to the front margin and back of it the gnathobases of the appendages, the three posterior pairs of which form the organs of manducation.


text: Dio's Roman History/Introduction

title: Dio's Roman History/Introduction


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 a dangerous probability that it will happen. Commonwealth vs. Peaslee, 177 Massachusetts 267, 272. But when that intent and the consequent dangerous probability exist, this statute, like many others, and like the common law in some cases, directs itself against that dangerous probability, as well as against the complete result." Of course this intent must be proved and inferred, as in other cases, from conduct. Unlawful acts, invasions of liberty, limiting of discretion, the creation of such a temptation as would naturally lead to it; but, however established, when once formed, and followed by action, the offence is established; for intent, being intensified tendency, the offence has appeared, the danger to society has arisen!


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One would think, in reading some of the briefs submitted on behalf of the trusts, that "indirectness of restraint" was a mere arbitrary unmeaning phrase solely devised that a trust could make some pretense of a defence in the absence of all real ones, whereas it means little more than the absence of dangerous probability explained by Mr. Justice Holmes. So, it is the present purpose to inquire not merely whether this be so, but whether it is not, indeed, but an abbreviation covering one of the most essential and scientifically thought out doctrines of the law.

If the doctrine, in this connection, be understood, it may be defined as the effort of the law so to limit the doctrine of tendency as to prevent its improper extension to the extinguishment of all other rights, or "the doctrine of indirection defines the limitations of the doctrine of 'tendency' so that all rights and powers may not be absorbed by an absurd extension of the latter."

The first and most important thing to be remembered in this connection is that the doctrine has no application whatever to tortious or involuntarily suffered restraints, its sole application being to cases of voluntary or contractual restraint, involving in its accomplishment no wrongful means or end. This is constantly overlooked in argument, and leads but 31


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 1519–[20]. He was buried in the chancel of the church with his first wife, Alice, and a brass effigy with inscription is fixed to the east wall of the north aisle. He was survived by his second wife, Joan, and apparently an only son. His will, dated 4 Jan., was proved on 24 March 1519–[20] (Brit. Mus. Addit. MS. 6033, f. 46; History of Newbury, 1839, p. 78).

His son, (1489?–1565?), carried on his father's trade, but took more part in politics. In October 1536 he was one of those to whom letters were addressed for aid in view of the northern rebellions. In February 1538–9 [q. v.], when at Newbury, employed him as a means of communication with Cromwell, who in the same month gave Winchcombe an order for a thousand kerseys (, Remains, Parker Soc. pp. 500, 502; Letters and Papers of Henry VIII, i. 396). In December following he was one of the ‘squires’ appointed to receive Anne of Cleves, and on 12 Feb. 1539–40 he was granted Bucklebury and Thatcham, besides some lands in Reading, all previously the property of St. Mary's Abbey there; on 4 Feb. 1540–1 he was placed on the commission of the peace for Berkshire. In March 1541 he was leader of a movement among clothiers to protest against the provisions of the statute of 1535 dealing with the manufacture of cloth (27 Henry VIII, c. 12). The council stayed the execution of the statute, and directed Sir Thomas Gresham and others who had procured it to prepare for its defence (, Acts P. C. vii. 156; Letters and Papers, xvi. 625). On 20 Jan. 1544–5 ‘John Winchcombe, gent., of Newbury,’ was returned to parliament for West Bedwin, Wiltshire. In 1549 he was granted a coat of arms, and on 8 Feb. 1552–3 was returned to parliament for Reading. Three portraits of the younger John Winchcombe, all dated 1550, were exhibited at the Tudor Exhibition in 1887. An original portrait, erroneously ascribed to Holbein, belongs to Mrs. Webley Parry, a copy to Mrs. Dent of Sudeley, and another original portrait to Mr. Walter Money (Cat. Tudor Exhib. Nos. 448, 201, 218).

It was probably his son who, as ‘John Winchcombe, jun.,’ represented Ludgershall in 1553–4 and 1555 with Dr. [q. v.], was directed in the latter year to maintain order at Reading fair (Acts P. C. 1554–6, p. 163), and in Elizabeth's reign was suggested by Parker as a commissioner in Berkshire to prevent the scarcity of corn (, Parker, iii. 121). His descendant, Sir Henry Winchcombe, was created a baronet in 1661, and died in 1667, leaving a son Henry, on whose death in 1703 the baronetcy became extinct. The estates passed to his eldest daughter, Frances, who was married in 1700 to, the great viscount Bolingbroke [q. v.]

The cult of the legendary ‘Jack of Newbury’ began before that of Whittington. Wood mentions (Addit. MS. 6033, f. 46 b) having bought from a pedlar in Warwickshire the ‘Life and Ghests of Jack of Newbury’ printed in black letter, of which no copy now appears to be extant. Late in the sixteenth century [q. v.] published his ‘Pleasant History of John Winchcomb, in his younger yeares called Jacke of Newberie, the famous and worthy clothier of England.’ The earliest edition extant appears to be the eighth, published in 1630; a copy in the Douce collection in the Bodleian Library contains a note by Douce to the effect that the first edition was published about 1597, and on his flyleaf is ‘a sketch of Jack of Newbury's house from recollection, made by Flaxman for F. Douce.’ A ninth edition appeared in 1633 (London, 4to), a fourteenth about 1680, and a fifteenth about 1700 (both London, 4to). A shortened version of the story, ornamented with rough woodcuts and entitled ‘The History of Jack of Newbury,’ was published about 1750 (London, 12mo; another edit. London, 1775? 12mo), and another version, entitled ‘The History of Mr. J. W.,’ appeared at Newbury (1780? 8vo).

WINCHELSEA, ROBERT (d. 1313), archbishop of Canterbury, derived his name from Old Winchelsea in Kent, where he was probably born. He studied arts at Paris, where he took his master's degree, becoming rector of the university before 7 July 1267 ( and, Cartularium Universitatis Parisiensis, i. 468). He afterwards studied theology at Oxford, where he proceeded D.D., and was


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 to confusion and error. The doctrine of "tendency," indeed, if properly understood and limited, comprises the whole doctrine of "indirectness" within itself.

Sir Frederick Pollock, in "Contracts," page 317, discussing Egerton vs. Earl Brownlow, 4 H. of L. C. 1 (1853), says: "The question * * * was whether there was an apparent tendency to mischief * * * or only a remote possibility of inconvenient consequences. * * * Egerton vs. Earl Brownlow, however, is certainly a cardinal authority for one rule which applies in all cases of 'public policy,' namely, that the tendency of the transaction at the time, not its actual result, must be looked to.” This contrasting "tendency" with "remote possibility" is inherent in the subject, and must have at all times and in all such cases been a necessary part of the mental processes of the courts; but it is remarkable how little prominence it attained before the Nation undertook to protect national trade, and thus required a consideration of State as contrasted with national rights. It is confidently believed that even if the term "indirect" in connection with restraints of trade was ever used in the whole history of the common law, its use or discussion in one thousand years has not equaled either, under the Anti Trust Act since 1895. Indeed, until I found the passage in Pollock, just quoted, I had no reference to the principle at common law, and, even there, the term is not used and the discussion is but as to "tendency." This advantage would have been gained, from so confining the discussion, that it would not have required all the labor of defining and restricting the enunciation of a new term of art. And it is submitted that the doctrine enunciated in the Egerton case, and by Mr. Justice 32


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 Holmes, as just quoted, was all that was necessary, and would have led to the same results. Indeed, he makes it the differentiating factor between the Knight and Swift cases, saying, at page 397 of the latter: "Moreover, it is a direct object, it is that for the sake of which the specific acts and courses of conduct are done and adopted. Therefore the case is not like The United States vs. E. C. Knight Co., 156 U. S. 1." No more illuminating or better exposition of those cases could be found!

One thing is certain, and that is that this unhappy word is intended to enunciate no new doctrine in controversion of the maxim: "Dolus circuitu non purgatur," and one of the chief objections to the word "direct," in this connection, is that in other connections it is used as an equivalent of "proximate," and so suggests an inquiry along that line. But this cannot be correct, as a power may be "inevitable," at least in some sense, certainly "foreseeable" in its results, and not be "direct" at all (see the Knight case), and yet be one that may never be reached, or if reached, be so by the most circuitous path possible, and be "direct." In the Knight case a complete control of manufactories, in every respect and as to every discretion, was secured; and yet the restraint was held to be "indirect," "remote;" while in the Addyston case but a limited amount of discretion was yielded, and yet, because that yielding might, through many possible steps, end ultimately in a decrease of national trade, the restraint was held to be "direct" and unlawful. But the court found conduct evincing intent and consequent dangerous probability in the later case, and thought it lacking, on the evidence, in the former!


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 The Knight and Securities cases afford a much stronger instance. Unification by complete ownership took place in both instances. So complete was the analogy that four of the justices held that the law laid down in the former case was overruled by the latter; and yet, on the facts found, identical acts, found in the one case as constituting indirect methods of restraint, were, in the other, found to be direct; and on no question of law did the latter case depart from the former! Both cases are constantly cited by the Supreme Court to justify a single doctrine, and correctly. As has been indicated, the reason is that while the acquisition of "power" to restrain may be viewed with such just suspicion as to make it prima facie dangerous, illegal, to require explanation, that still, if that explanation satisfy the court that there was neither purpose nor interest amounting to dangerous temptation to misapply it, the justly and lawfully acquired power can be lawfully retained; because neither restraint nor the power acquired with interest or intent to restrain exists, necessary to constitute that tendency, which is equally illegal with restraint itself.

To repeat: The doctrine of "direct" or "indirect" restraints would have continued to be explained, as at common law, by a sensible definition of the term tendency, had not the doctrine for identical reasons become so important a one in solving questions resulting from the duality of government and powers in the United States; but having been necessarily so used in regard to such questions generally, it most naturally was also applied to them in this particular respect, as to a national matter. Nevertheless, the


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 common law doctrine of "tendency," properly understood, also fully covered the subject.

As the purpose is to consider the Knight case separately in this connection, what has been said will only be justified shortly here. But first, a word of caution. It is not the purpose of this essay to justify the findings of fact of that case, the inference of interest or tendency; and tendency is a question of fact of any particular case. Such findings, however important to the particular case, are of no importance to any one else, binding neither juries nor the court itself, in later cases. This has been ably pointed out in a restraint case where the inferences of fact of another restraint case, previously passed upon by it, were again unsuccessfully urged upon the House of Lords. An exact parallel of the Knight and Securities cases, in America!

And, in addition to this, it must never be forgotten that while the law remains and should be permanent, that conditions of civilization and trade are constantly changing; and that it was held under prior conditions, that certain conduct did not tend to restraint; still, under subsequent ones, it is permissible to hold that tendency may be clear even from identical conduct. So that identically opposite decisions may only demonstrate the unchangeable quality of the law's hostility to restraints of prosperity, however brought about.


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 For the present, but two opinions will be referred to, as it is thought they perfectly clarify the subject—Mr. Justice Peckham's, in the Anderson case, and Mr. Justice White's, in the Securities case, the latter because no stronger view can possibly be contended for than that of the minority, which dissented because the majority would not go even so far.

In the Anderson case, then, the doctrine is thus lucidly stated: "Where the subject-matter of the agreement does not directly relate to and act upon and embrace interstate commerce, and where the undisputed facts clearly show that the purpose of the agreement was not to regulate, obstruct, or restrain that commerce, but that it was entered into with the object of properly and fairly regulating the transaction of the business in which the parties to the agreement were engaged, such agreement will be upheld as not within the statute, where it can be seen that the character and terms of the agreement are well calculated to attain the purpose for which it was formed; and where the effect of its formation and enforcement upon interstate trade or commerce is, in any event but indirect and incidental, and not its purpose or object. As is said in Smith vs. Alabama: 'There are many cases, however, where the acknowledged powers of a State may be exerted and applied in such a manner as to affect foreign or interstate commerce without being intended to operate as commercial regulations.' The same is true as to certain kinds of agreements entered into between


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 chancellor in 1288 (, Fasti Oxon. p. 15, ed. Gutch). A confusion of him with a namesake, John Winchelsea, has led to the improbable assertion that he was a fellow of Merton College (, Memorials of Merton Coll. pp. 197–8, Oxford Hist. Soc.). He enjoyed a great reputation as scholar and administrator both at Paris and Oxford ( in Anglia Sacra, i. 12). He was appointed prebendary of Leighton Manor in Lincoln Cathedral, but his rights there were contested by the litigious Almeric of Montfort [q. v.] (Peckham's Letters, i. 90). Winchelsea gained the suit, and held the prebend until he became archbishop (, Fasti Eccl. Angl. ii. 176, ed. Hardy). About 1283 Winchelsea was appointed archdeacon of Essex and prebendary of Oxgate in St. Paul's (ib. ii. 333–4, 420;, Repertorium Ecclesiasticum Londin. i. 71, 190). He resided constantly and diligently visited his archdeaconry. He preached frequently and resumed the delivery of theological lectures in St. Paul's (, p. 12).

Peckham died on 8 Dec. 1292. The papacy was vacant, and for once there was a chance of a canonical election to Canterbury. On 22 Dec. Henry (d. 1331) [q. v.] of Eastry, prior of Christ Church, sought license to elect, and two of his monks visited Edward at Newcastle, whence they were sent back on 6 Jan. 1293 with the necessary permission. The election took place on 13 Feb., and was ‘per viam compromissi,’ a committee of seven being entrusted with making the appointment on behalf of the whole chapter (, Concilia, ii. 189–90). Through Eastry's influence, and probably with Edward I's goodwill, Winchelsea was unanimously elected. The king gave his consent after three days (, p. 12), whereupon Winchelsea at once prepared to start off for Rome (cf. Cal. Pat. Rolls, 1292–1301, p. 7). He reached Rome on Whit-Sunday, 17 May. The papacy being still vacant, he was delayed at the curia more than a year before he could obtain confirmation and consecration. He made so good an impression on the cardinals that it was believed in England that he was thought of as a possible pope (, p. 12). At last the election of Celestine V terminated the long vacancy on 5 July 1294. The new pope thought so well of Winchelsea that he offered him a cardinalate, which Winchelsea refused. Despite the opposition of the Franciscans (Worcester Ann. p. 518), Celestine confirmed Winchelsea's election. On 12 Sept. he was consecrated bishop at Aquila, where the papal court then was (, Concilia, ii. 198). He left Rome on 5 Oct., and travelled home by way of Germany, Brabant, and Holland, to avoid the territories of Philip the Fair, with whom Edward I was then at war. He reached Yarmouth on 1 Jan. 1295 (Worcester Ann. p. 518). Besides the sum of 142l. 19s. expended in England, his outlay at Rome had amounted to the huge sum of 2,500 marks (, Antiq. of Cant. Appendix to Supplement, pp. 18–19). The proctors of the chapter had spent more than half as much besides.

Edward I was in North Wales suppressing the revolt of Madog ab Llywelyn [see ]. Winchelsea at once repaired to the royal camp at Conway, where on 4 Feb. the order for the restoration of his temporalities was issued (Cal. Pat. Rolls, 1292–1301, p. 129). On 6 Feb. Winchelsea excommunicated Madog (Concilia, ii. 203), and on 18 March he made his solemn entry into Canterbury, where he received the pallium. He was enthroned on Sunday, 2 Oct., in the presence of the king, Edward's brother and son, and a great gathering of clerks and magnates. The details of the ceremony were carefully recorded (‘Forma inthronizationis archiepiscopi VI Non. Oct. ab Henrico priore,’ &c., in, i. 57–8).

A secular priest, canonically elected by an English chapter, Winchelsea was anxious from the beginning not to fall short of his two mendicant predecessors (Kilwardby and Peckham), whom the papacy had forced upon the English king and church. In personal holiness he was in no wise inferior to them, and he was probably their superior in ability. He continued to be assiduous in preaching. He attended the canonical hours as regularly as a monk. He frequently shut himself up for prayer and meditation, and, as his intimates suspected, for severe corporal discipline. His charity and almsgiving were magnificent. Many poor scholars partook of his bounty, and he was careful to reserve many of his best benefices for needy masters and bachelors of divinity. He was bountiful to the mendicant friars, though he sought to restrain them from exercising pastoral functions without the consent of the local clergy (Worcester Ann. p. 546; cf. however Concilia, ii. 257–64). He constantly distributed his rich garments to the poor, and never kept more than two robes for himself. He partook sparingly or not at all of the costly meats set before him, and habitually gave them away to the poor and sick, much to the disgust of his servants, who thought that coarser food would have sufficed for pauper needs. Yet he seldom gave way to the excesses of asceticism. He was cheerful in temperament, corpulent in body, a hard worker, and a good man of


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 engaged in the same business for the direct and bona fide purpose of properly and reasonably regulating the conduct of their business among themselves and with the public. If an agreement of that nature, while apt and proper for the purpose thus intended, should possibly, though only indirectly and unintentionally, affect interstate trade or commerce, in that event we think the agreement would be good. Otherwise, there is scarcely any agreement among men which has interstate or foreign commerce for its subject that may not remotely be said to in some obscure way affect that commerce, and be void." The synonyms of "indirect," used in this decision, being "unintended," "obscure," "not its purpose," "incidentally," "possibly though unintentionally," "if at all," "no purpose of affecting or in any manner restraining," "if at all only in a very indirect and remote," "no direct tendency to diminish or in any way impede or restrain," "no tendency directly or indirectly to restrict competition," "not with intent or purpose of affecting in the slightest degree," "no tendency to limit the extent of the demand, or to limit the number marketed, or to limit or reduce price, or place any impediment in the course of the commercial stream," "too remote and fanciful," "reasonable and fair," "possibly in but a remote way." But what is this, but an able application of the common law, as laid down by Baron Parke in Mallan vs. May?

In the Securities case, Mr. Justice White says: "Where an authority is exerted by a State, which is within its power, and that authority, as


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, does not touch interstate commerce or its instrumentalities, and can only have an effect upon such commerce by reason of the reflex and remote results of the exertion of the lawful power, it cannot be said, without a contradiction in terms that the power exercised is a regulation, because a direct burden upon commerce * * * The question whether a burden is direct and therefore constitutes a regulation of interstate commerce is to be determined by ascertaining whether the power exerted is lawful, generally speaking, and then by finding whether its exercise in the particular case was such as to cause it to be illegal, because directly burdening interstate commerce. If in a given case the power be lawful and the mode in which it is exercised be not such as to directly burden, there is no regulation of commerce, although as an indirect result of the exertion of the lawful power some effect may be produced upon commerce." But, of course, the mere fact that a result merely "may be produced" and as "an indirect result" cannot even at common law amount to the "dangerous probability" constituting "tendency" with which the law deals.

Or, in a nutshell, as is said by the same justice in Pabst vs. Crenshaw: "The distinction between direct and indirect burdens upon interstate commerce, by means of which the harmonious working of our constitutional system has been made possible."

But, of course, it must not be forgotten, as already pointed out, that no exercise of power is lawful if used to accomplish an illegal purpose, or that really tends to the accomplishment of it, or the


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 public evil involved in its accomplishment. But, assuming that the application of the power is for a lawful purpose and with lawful tendencies, its merely possible results are not controlling. But the distinction between "tendency" or "intent," and mere "unintended possibility," must ever be kept in mind if error is to be avoided. And it is to be feared that it is not always.

A very satisfactory way of stating and explaining this is that of Chief Justice Marshall, in Gibbons vs. Ogden, as is so ably pointed out by Mr. Justice Moody in the Employers' Liability cases.

Where there are two powers, one in the State, another in the nation, one in individuals, or another in the nation, the exercise of the one power is not to be destroyed by the mere existence of the other, where that exercise is bona fide, with no intent or purpose of invading, or manifest, or natural tendency to invade it. In such cases there must be temptation added to power to constitute tendency, or that intent that is, of course, its equivalent, or most intensified form.

It is worth while to repeat that: "Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, for instance, the monopoly" (or, of course, that which tends to it), "but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. But when that intent and the consequent dangerous probability exist, this statute, like many


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 business. He was tenacious of his precedence and personal dignity on public occasions, but associated on terms of friendly equality with his clergy. He was affable, kind, and jocular. He hated flatterers, traitors, and prodigals. He rarely spoke to women save in confession ({sc|Birchington}}, pp. 12–14 collects, perhaps with too much desire for edification, his personal characteristics; cf. also Flores Hist. iii. 155, Chron. de Melsa, ii. 328; Monk of Malmesbury in Chron. Edw. I and Edw. II, ii. 192–3).

Winchelsea was an uncompromising churchman and a zealous upholder of the papal authority. Yet his love of power and influence was so great that it brought him into conflict with his clergy, his suffragans, many of the nobles, the king, and sometimes even with the pope. With longer English experience than Peckham, and the wider outlook of a secular priest, Winchelsea did not limit his interests so strictly to the ecclesiastical side of things as his predecessor. He thought it his business to protect nation and church alike. The growing difficulties in which Edward I's too ambitious policy had involved him enabled Winchelsea to combine with the purely ecclesiastical antagonism inherited by him from Peckham a strong political opposition to the king's policy.

Even before his enthronement Winchelsea had taken up his line. He summoned a council of his suffragans to meet on 15 July 1295 at the New Temple (, pp. 293–4; Concilia, ii. 215), and the proceedings of this body seemed to be a menace to the king. At the autumn parliament in London Edward on 28 Nov. personally pleaded with the clergy for a large war subsidy. Winchelsea offered him a tenth, which Edward rejected as inadequate. Strong pressure was brought to bear, but the archbishop made a merit of offering the tenth for a second year if the war still continued (Worcester Ann. p. 524). Next year Edward's embarrassments grew worse, while Winchelsea's position was strengthened by Boniface VIII issuing the bull clericis laicos, on 24 Feb. 1296, by which the clergy were forbidden to pay taxes to the secular authority. In November parliament met at Bury St. Edmund's, and the laity granted a liberal subsidy. Next day Winchelsea harangued the clerical estate in the chapter-house of the abbey. Admitting the reality of the danger from France, he urged the papal prohibition and the impoverishment of the clergy through former exactions, and denied that the clergy had promised any fresh tax (, pp. 314–15). At last he persuaded Edward to wait until January 1297 for the final answer. Meanwhile parliament broke up, and Winchelsea summoned a provincial convocation for 13 Jan. at St. Paul's, which took up the business that the clerical estate had evaded. Before this met on 5 Jan. Winchelsea by papal order published the bull clericis laicos in every deanery in England (Concilia, ii. 222;, p. 316).

Winchelsea opened convocation by a sermon. ‘We have two lords over us,’ he said, ‘the king and the pope, and, though we owe obedience to both, we owe greater obedience to the spiritual than to the temporal lord’ (, ii. 116). The clergy therefore must find, if possible, a way intermediate between the subversion of the realm and disobedience to the pope. The clergy, though much divided, refused a general subsidy, and Edward threatened them with outlawry. Though individual clerks made personal gifts to the king, who announced his willingness to accept a fifth, Winchelsea remained firm, and kept the clergy as a body on his side. On 30 Jan. the sentence of outlawry was formally promulgated against the clergy by John of Metingham, the chief justice, in Westminster Hall. On 10 Feb. Winchelsea, who had gone to Canterbury for the consecration of John of Monmouth as bishop of Llandaff, preached to the people in the cathedral after the consecration, and then solemnly pronounced excommunicate all who in any wise trangressed the papal bull (, p. 320). On 12 Feb. Edward answered by ordering the sheriffs to take possession of the lay fees of all the clergy of the province of Canterbury. But within a fortnight the resistance of the baronage under Norfolk and Hereford at Salisbury further strengthened Winchelsea's position.

The strain was too great to last. Winchelsea, who had all through admitted the necessity of the war and the legitimacy of the king's demands for help, found it judicious not to press matters to extremity. On 7 March he persuaded Edward to suspend the execution of the edict confiscating their lay fees. He summoned another convocation for 24 March, but on its assembling the king sent to it six commissioners, who warned it not to attempt anything against his authority. Two Dominicans upheld the king's rights to raise war taxes (Flores Hist. iii. 100), and Winchelsea himself abandoned his heroic attitude. He kept the council from coming to any formal decision, but before it separated said, ‘I leave each and all of you to your own consciences. But my conscience does not allow me to offer money for the king's protection or on any other pretext’ (Worcester Ann. p. 351; cf. Flores Hist. iii. 101, ‘Unusquisque ani-


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 others, and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result."

But it must also be borne in mind that, as trade is carried on for profit, and rarely successfully by the pure altruist, the acquirement of power that offers its owner unlimited opportunities of attaining the object—profit—and satisfying cupidity, but at the expense of the consuming public, needs no additions "to the mere forces of nature to bring that result to pass." "Tendency" has appeared, and with it unlawfulness.


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It is manifest from what has been said, that this doctrine of indirectness can but apply to cases of assent. Lacking assent you have mere torts, invasions of right; and in such cases the doctrine of the maxim "dolus circuitu non purgatur" applies in full force.

It is a striking fact that in no such case has the Supreme Court ever denied a citizen redress for an invasion of his constitutional right and election to engage in national trade!

The acquirement of power by unlawful means, or the unlawful use of it in such manner as possibly to affect the Nation's rights in its trade, never overcomes the prima facie presumption of illegality always arising in such cases. Good purposes are not legally to be deduced from bad purposes or evil acts.

The doctrine of "indirectness," resting upon the lawfulness of what is done, can have no relevancy whatever to that which is in any way unlawfully done—to any tort or conspiracy! When people begin to do unlawful things that may injure national trade, there is always enough "dangerous probability" for the law to interfere at once. "Indirectness" meaning, in this connection, nothing more than "mere unintended possibility from lawful exercise through lawful means, of lawful rights or powers," an intended restraint upon trade itself must be illegal. It is illegal to strive to destroy, in any degree, that upon which public welfare depends. It makes no difference how indirect the means adopted, how


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 mam suam salvet’). It was substantially a recommendation to each clerk to make his own terms of submission.

Winchelsea's estates remained in the king's hands for more than five months (Anglia Sacra, i. 51), during which he depended on charity for subsistence. Royal agents seized his horses at Maidstone and compelled him to travel on foot (Flores Hist. iii. 293). On 27 Feb. the king seized Christ Church and sealed up its storehouses to prevent the monks giving him any help (, i. 14–15; Hist. MSS. Comm. 5th Rep. i. 433). But even the clerical partisans who hailed Winchelsea as a second St. Thomas admitted that his worst sufferings resulted not from Edward's direct orders but from the officious zeal of the royal underlings. The king's self-restraint made a reconciliation the more easy, and Edward's wrath was over when most individual clerks had made their voluntary offering, and the baronage had agreed to fight for him beyond sea. On 14 July the reconciliation of church and state was publicly brought home to Londoners in the affecting scene of farewell enacted outside Westminster Hall. Winchelsea burst into tears at the king's appeal to the emotions of his subjects, and promised that he would be faithful to him in future (Flores Hist. iii. 295). Two days (14 July) afterwards Winchelsea summoned another convocation to deliberate as to the means of obtaining the pope's permission to pay the king a grant. On 19 July his lands and goods were restored.

Winchelsea now exerted himself to persuade the earls of Norfolk and Hereford to make terms with the king. On 27 July he had personal colloquy with the earls' agents at Waltham, and next day took them with him to see the king at St. Albans. It was no fault of his if the two earls held aloof. On 31 July Edward received the clergy back to his protection, and before his embarkation wrote to the archbishop begging his prayers for the success of the army.

On 10 Aug. Winchelsea opened convocation at London by informing it that the king had promised to confirm the charters if the clergy would make an adequate grant for the French war. The assembly agreed, however, that no grant could be made without obtaining the pope's leave, but promised the king to apply to Boniface at once. Curiously enough the bull of 28 Feb. 1297, by which the pope excepted from his prohibition all voluntary gifts and sums raised for national defence, was referred to by neither party in the discussion. But on 20 Aug. Edward, without waiting for a grant, ordered the immediate collection of a third of the clerical temporalities. On 23 Aug. he sailed for Flanders. The reconciliation, after all, was not very deep.

Despite Edward's prohibition, Winchelsea excommunicated the infringers of the liberties of the church. Meanwhile the baronial opposition was obtaining from the regency the long-promised confirmation of the charters. Winchelsea, who was present at the tumultuous parliament which preceded the baronial triumph, was in full sympathy with their action, though not taking a leading part in it himself. A devastating Scottish foray now made odious the unpatriotic attitude of the clergy. On 28 Nov. a new convocation granted a tenth, raised by each diocesan through clerical machinery. As Edward had not asked for a tax, and as the money was for occasions recognised by the bull of explanation, Winchelsea felt himself secure both from the king and the pope. On the same day the charters, which Edward had confirmed in London, were recited publicly and handed over to the custody of Winchelsea. Thus peace was at last restored.

Winchelsea's vigorous and successful resistance to Edward gave him a great reputation among all lovers of high clerical authority. Boniface VIII called him ‘solus ecclesiæ Anglicanæ pugil invincibilis, inflexibilisque columna’ (, i. 16). Despite his preoccupation in politics, Winchelsea had found time for plenty of other work. He had numerous quarrels on his hands. A dispute with Gilbert de Clare, ninth earl of Gloucester [q. v.], which broke out before the archbishop's enthronement, could not be settled by arbitration, and was ultimately referred to the bishop of Durham (Cal. Pat. Rolls, 1297–1301, p. 152). He had a fierce controversy with the abbot and convent of St. Augustine's, Canterbury. In the course of it he was cited to Rome in 1299, and in 1300 Boniface VIII issued a bull exempting the abbey from all episcopal jurisdiction (Cal. Papal Letters, i. 585–6). But Winchelsea's strenuous remonstrances led the pope to issue in 1303 a further bull that minimised the privileges that he had previously granted (Literæ Cantuar. lxi–lxiii; Thorn in, Decem Scriptores, c. 2004–5, who is bitterly hostile to Winchelsea). The pope played Winchelsea even a worse trick when in 1297 he exempted the bishop of Winchester for life from all his archiepiscopal jurisdiction (Cal. Papal Letters, i. 569). Winchelsea strove to increase the number of monks and improve the discipline even in the faithful convent of Christ Church (Hist. MSS. Comm. 5th Rep. i. 446).


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 Although I have read pretty nearly everything about them that has been written by anybody, I have not included it all in my history, but only what I have seen fit to select. I trust, moreover, that if I have used a fine style, so far as the subject matter permitted, no one will on this account question the truthfulness of the narrative, as has happened in the case of some writers; for I have endeavoured to be equally exact in both these respects, so far as possible. I will begin at the point where I have obtained the clearest accounts of what is reported to have taken place in this land which we inhabit.

This land in which the city of Rome has been built.

1. Aeneas after the Trojan war came to the Aborigines, who were the former inhabitants of the land wherein Rome has been built and who

This Aeneas, after the capture of Troy, came, as we have remarked, to Italy and the Latins. He


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 He frequently objected to episcopal elections, but his objections were not always sustained on appeal to Rome. He was a strenuous upholder of the metropolitan's rights of visitation. He began in 1299 with a visitation of the diocese of Chichester, and in 1300 passed on to that of Worcester. In 1300 he had an unseemly dispute with St. Albans Abbey (Gesta Abbatum S. Albani, ii. 47–8, Rolls Ser.). In the same year he extracted a tax of 4d. in the mark from all his clergy to assist the execution of his numerous plans of reformation (Worcester Ann. p. 547). On 8 Sept. 1299 Winchelsea officiated in his own cathedral at the king's second marriage (ib. p. 542). He was in 1300 entrusted by Boniface VIII with the delivery of the apostolic mandate to withdraw from attacking the Scots, whom the pope had taken under his protection. A letter of Winchelsea to Boniface (Ann. Londin. pp. 104–8) relates in detail his long journey to Carlisle, his difficulty in reaching the king, his perils from the sea and the Scots, and his final interview with Edward at Sweetheart Abbey on 27 Aug. The king refused the pope any final answer until he had consulted the magnates. But it seemed to be in obedience to the mandate that he now withdrew from Scotland. Winchelsea returned southward. He traversed slowly the province of York, ostentatiously bearing his cross erect before him even when close by the city of York. In September he was in Lincolnshire. In October he was back at Otford in his own house.

At the parliament of Lincoln of January 1301 the troubles between Winchelsea and Edward were renewed in a more violent form. On Winchelsea's advice the barons presented through Henry of Keighley, knight of the shire for Lancashire, a bill of twelve articles, demanding an immediate settlement of the forests question and certain other outstanding grievances. The influence of the primate is almost certainly to be traced in the bishops' fresh declaration, with the assent of the barons, that they could not agree to any clerical tax contrary to the pope's prohibition, and in the demand for the removal of Winchelsea's enemy, Walter Langton [q. v.], bishop of Lichfield, from the treasury. Edward yielded to the pressure, but never forgave Winchelsea, whom he looked upon as the real instigator of the movement. Even in this parliament he managed to isolate the archbishop from his baronial allies. The barons' famous letter of protest addressed to Boniface was a repudiation of Winchelsea as well as of the pope. Edward made the split more emphatic by rejecting Winchelsea's addition to the articles of the barons limiting clerical taxation without papal consent. Another cause of quarrel soon arose between Winchelsea and Edward. During the vacancy at Canterbury the king had presented Theobald, brother of Edward's own son-in-law, the count of Bar, to the living of Pagham in Sussex, of which the archbishop was patron. In 1298 Winchelsea deprived Theobald on the ground of an informality, and conferred Pagham on Ralph of Malling. Before this, in 1297, Edward had induced Boniface to reappoint Theobald by papal provision (Cal. Papal Letters, i. 572). Winchelsea paid no heed to the papal action, whereupon Boniface on 15 Jan. 1300 renewed the grant of Pagham (Cal. Papal Letters, p. 591). The abbot of St. Michael's, in the diocese of Verdun, was sent to England to secure for Theobald the execution of the papal provision. As Winchelsea still resisted the appointment of a non-resident pluralist in subdeacon's orders, he was on 15 Oct. solemnly excommunicated by the abbot. Only after Winchelsea's submission was the sentence removed, in 1302.

During this time Winchelsea revengefully continued his attack on Langton. His agents at Rome supported the monstrous charges brought by John de Lovetot against the treasurer. However, in February 1302 Boniface put Winchelsea in a difficult position by associating him with the provincials of the Franciscans and Dominicans on a commission appointed to investigate the accusations. Winchelsea was forced to report to Rome that Langton was innocent, and in June 1303 Boniface formally acquitted the archbishop's great enemy (Cal. Papal Letters, i. 610). The collapse of the papacy after the fall of Boniface VIII removed Winchelsea's best support against his sovereign, for Boniface, if sometimes hostile, might be relied upon to uphold all who maintained the clerical against the civil power. Meanwhile Winchelsea was busy visiting his province and constantly giving fresh causes of irritation. He offended Edward once more by exercising through an unworthy stratagem the right of visiting the king's free chapel within Hastings Castle, and by visiting almost by force the king's hospital of St. Giles-without-London (Cal. Patent Rolls, 1301–7, pp. 189, 397). He had incurred widespread unpopularity through his constant claims of jurisdiction. In 1303 the Canterbury mob broke open his palace while he was residing there, and brutally maltreated the dean of Ospringe at Selling for no other offence than serving the archbishop's


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 citations (ib. p. 197). He was quarrelling with the archbishop of York on the ancient question of the right of the northern primate to have his cross borne erect before him in the southern province, and it is significant that Edward wrote to the curia upholding the archbishop of York's claim. But Winchelsea still controlled the clerical estate, and won his last triumph when he induced the clergy to reject the law proposed by Edward in the parliament of April 1305 forbidding the export of specie from alien priories.

In November 1305 the election of Edward's vassal and dependent, Bertrand de Goth, as Clement V, gave the signal for Edward's long-deferred attack on Winchelsea. Among the special ambassadors sent to the new pope's coronation on 14 Nov. 1305 were Bishop Langton and the Earl of Lincoln, who very effectively poisoned the pope's mind against Winchelsea. By absolving Edward from his oath to the forest charters Clement destroyed the result of Winchelsea's most hard-won victory, while by decreeing that Edward should not be excommunicated or censured without papal permission he deprived Winchelsea of his most effective weapon. In January 1306 Winchelsea sent Walter Thorp, dean of arches, to Lyons to counteract Langton's machinations (Ann. Londin. p. 144). But on 12 Feb. Clement suspended Winchelsea from his spiritual and temporal functions, and cited him to the curia within two months. On 24 Feb. the envoys came back to London. Next day Winchelsea also arrived, having terminated a visitation of the diocese of Winchester that he had eagerly undertaken on the death of the exempt bishop. He was now unable to resist Archbishop Greenfield bearing his cross erect through London streets (Ann. Londin. p. 144; cf. Lit. Cantuar. i. 30–31).

Winchelsea received intelligence of his deprivation on 25 March, and at once visited the king to beg for his intercession. A stormy scene ensued. Winchelsea showed some confusion and craved the king's benediction, just as if his sovereign were his ecclesiastical superior. Edward overwhelmed him with reproaches, accusing him of pride, treason, and pitilessness, and declaring that either he or the archbishop must leave the realm. On 5 April Edward declared to the pope that Winchelsea's presence threatened the peace of the land. Winchelsea went down to Dover priory, where on 18 May the citation to the curia was delivered to him (Ann. Londin. pp. 144–5). Early next day he took ship for the continent. He remained in exile for the rest of Edward's life.

Winchelsea found the papal court established at Bordeaux, so that even in his banishment he did not quit Edward's dominions. The worry and fatigues in which he had been involved culminated in a stroke of paralysis, from which he never wholly recovered. He scornfully rejected the proposal to resign his archbishopric or to accept translation to another see. He felt that he was but treading more completely in the footsteps of St. Thomas (, i. 16). His reputation for sanctity became greater, and it was believed that the death of his enemy, Edward I, was revealed to him at Bordeaux in a vision (Flores Hist. iii. 328).

Winchelsea's suspension was so much a political measure that the accession of Edward II and the disgrace of his arch enemy Langton removed the only obstacles to his reinstatement. On 16 Dec. 1307 the new king urged Clement to restore Winchelsea, and on 22 Jan. 1308 the pope issued from Poitiers letters removing his suspension (Lit. Cantuar. iii. 385–6; Cal. Papal Letters, ii. 33). On the same day Clement, at Winchelsea's request, revoked a former nomination of a commission of English bishops to crown Edward, on the ground that the right of coronation belonged exclusively to Canterbury. On 28 Jan. Winchelsea appointed the bishop of Winchester to act on his behalf, as he was unable through ill-health to be back in time to officiate in person. This punctiliousness necessitated the postponement of the coronation from 18 Feb. to 25 Feb. The archbishop returned to England in March or April (, p. 33; Ann. Paul. p. 263). On 14 April he made a long-deferred composition with the Count of Boulogne, who had been irritated by not obtaining his usual dues from a new archbishop, through Winchelsea not having passed through his territories on his earlier journeys to the continent (Lit. Cantuar. iii. 388).

Within a few weeks of Winchelsea's return Piers Gaveston [q. v.] was banished. The archbishop headed his suffragans in threatening excommunication to the favourite if he disobeyed the baronial edict (Ann. Londin. p. 155). He thus renewed from the first his relations with the opposition, and was soon more hostile to Edward II than to his father. His goods were not restored until November, but during his absence William Testa, the papal administrator, had taken such care of his estates that he was now ‘a richer man than ever he had been before’ (, p. 13; cf. Anglia Sacra, i. 51). At the parliament of


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 Rh quinta da Asia, l. vi. c. ii., Lisboa, 1612, f. 123).

Thus, almost as soon as the Western world got to know anything of the Buddha, the remarkable resemblance of his legend and that of St. Josaphat was observed, but no note was taken of do Conto's hint for two centuries and a half, when M. Laboulaye, quite independently, drew attention to the Buddhistic origin of the Barlaam legend in the Journal des Dehats of the 26th July 1859. Laboulaye's discovery was clinched by Felix Liebrecht in a paper on the sources of Barlaam and Josaphat (Jahrbuch, f. Rom. Lit. 1860, 314-34). Since the appearance of that striking memoir, no doubt has ever existed in any one's mind, who has examined the question of the legend of St. Joasaph, that it was simply and solely derived from the legend of Buddha. Indeed, if we put the two legends side by side, as M. Cosquin has done (Contes de Lorraine, pp. xlix. seq.), their close resemblance, if not identity, is

quinta da Asia, l. vi. c. ii., Lisboa, 1612, f. 123).

Thus, almost as soon as the Western world got to know anything of the Buddha, the remarkable resemblance of his legend and that of St. Josaphat was observed, but no note was taken of do Conto's hint for two centuries and a half, when M. Laboulaye, quite independently, drew attention to the Buddhistic origin of the Barlaam legend in the Journal des Dehats of the 26th July 1859. Laboulaye's discovery was clinched by Felix Liebrecht in a paper on the sources of Barlaam and Josaphat (Jahrbuch, f. Rom. Lit. 1860, 314-34). Since the appearance of that striking memoir, no doubt has ever existed in any one's mind, who has examined the question of the legend of St. Joasaph, that it was simply and solely derived from the legend of Buddha. Indeed, if we put the two legends side by side, as M. Cosquin has done (Contes de Lorraine, pp. xlix. seq.), their close resemblance, if not identity, is

quinta da Asia, l. vi. c. ii., Lisboa, 1612, f. 123).

Thus, almost as soon as the Western world got to know anything of the Buddha, the remarkable resemblance of his legend and that of St. Josaphat was observed, but no note was taken of do Conto's hint for two centuries and a half, when M. Laboulaye, quite independently, drew attention to the Buddhistic origin of the Barlaam legend in the Journal des Dehats of the 26th July 1859. Laboulaye's discovery was clinched by Felix Liebrecht in a paper on the sources of Barlaam and Josaphat (Jahrbuch, f. Rom. Lit. 1860, 314-34). Since the appearance of that striking memoir, no doubt has ever existed in any one's mind, who has examined the question of the legend of St. Joasaph, that it was simply and solely derived from the legend of Buddha. Indeed, if we put the two legends side by side, as M. Cosquin has done (Contes de Lorraine, pp. xlix. seq.), their close resemblance, if not identity, is

quinta da Asia, l. vi. c. ii., Lisboa, 1612, f. 123).

Thus, almost as soon as the Western world got to know anything of the Buddha, the remarkable resemblance of his legend and that of St. Josaphat was observed, but no note was taken of do Conto's hint for two centuries and a half, when M. Laboulaye, quite independently, drew attention to the Buddhistic origin of the Barlaam legend in the Journal des Dehats of the 26th July 1859. Laboulaye's discovery was clinched by Felix Liebrecht in a paper on the sources of Barlaam and Josaphat (Jahrbuch, f. Rom. Lit. 1860, 314-34). Since the appearance of that striking memoir, no doubt has ever existed in any one's mind, who has examined the question of the legend of St. Joasaph, that it was simply and solely derived from the legend of Buddha. Indeed, if we put the two legends side by side, as M. Cosquin has done (Contes de Lorraine, pp. xlix. seq.), their close resemblance, if not identity, is


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 April 1309 he refused to attend until the archbishop of York, disgusted at not being allowed to bear his cross, went back to the north. In his zeal for clerical privilege Winchelsea had even taken up the cause of his old enemy Langton, who was still imprisoned by royal authority alone. He refused to have any dealings with the king as long as Langton was unlawfully detained (, p. 14). In March 1310 Winchelsea was one of the lords ordainers, though in April Edward was still urging him to persuade convocation to make fresh grants from its spiritualities. After the first draft of the ordinances was issued in August 1310, Winchelsea on 1 Nov. published in St. Paul's a solemn excommunication of all who should impede their execution or publish to the world the secrets of the ordainers. When Edward broke the ordinances by recalling Gaveston in January 1312, Winchelsea at once excommunicated Piers and his abettors. Langton was released and restored to the treasury in March, despite Winchelsea's strenuous opposition. But in April the ordainers turned him out of his post, and Winchelsea excommunicated him for taking office against the provisions of the ordinances. On Langton going to the papal court to remonstrate against the sentence, Winchelsea despatched thither his clerk, Adam Murimuth, the chronicler, to represent his interests against the bishop (, p. 18).

Winchelsea's weak health makes his political activity the more remarkable. He did not, however, neglect the more spiritual side of his office during these years. He was much involved in the proceedings for the suppression of the templars (Cal. Papal Letters, ii. 48, 49), though he took no personal part in the council that he summoned for 25 Nov. 1308 to St. Paul's. He was associated with the papal commissioners sent to investigate the charges against them, but again he did not act. However, on 29 Dec. 1309 he opened another synod at St. Paul's by preaching a sermon. Ill-health prevented him from attending its later proceedings. He showed himself anxious to check the excessive zeal of the enemies of the order, and absolved by commission all the templars who professed penitence and accepted the declaration maintaining their orthodoxy (Flores Hist. iii. 145). He died at Otford on 11 May 1313, and was buried on 16 May at Canterbury, in the south part of the choir, near the altar of St. Gregory, against the south wall. The tomb has now disappeared.

In his will Winchelsea left his books and many rich vestments to the monks of his cathedral and some legacies to all his servants (Hist. MSS. Comm. 5th Rep. i. 460). There was, however, much delay in carrying out his testament, and in 1325 Prior Eastry urgently entreated Archbishop Reynolds to suffer the administration to be completed on account of the scandal caused by the delay (Lit. Cantuar. i. 44, 54, 134). This scandal was all the greater since popular veneration had already made Winchelsea an object of worship. The wounds discovered on his body had been attributed to self-maceration (, p. 13). Many miracles had been worked at his tomb, and his associates, the ordainers, pressed strongly for his canonisation. In 1319 Thomas of Lancaster sent a report of his miracles to Avignon, and Reynolds ordered the bishops of London and Chichester to investigate their authenticity. John XXII answered Lancaster by explaining the deliberate nature of the procedure of the curia in such matters, and nothing more seems to have been done in Thomas's lifetime. After the fall of Edward II the agitation was renewed, and in March 1327 Reynolds sent the pope a long schedule of miracles worked by him (Lit. Cantuar. iii. 398–402, gives the correspondence; cf., App. i. 56; Cal. Papal Letters, 1305–42, p. 422). Nothing, however, came of the effort to make him a saint.

[Wharton's Anglia Sacra, especially Birchington in i. 11–17, Annales Monastici (Osney, Wykes, Dunstaple, and Worcester), Chron. Edw. I and Edw. II (Ann. Londin. and St. Paul's, and Canon of Bridlington), Cont. Gervase of Canterbury, Bartholomew Cotton, Rishanger, Langtoft, Murimuth, Flores Hist., Chron. de Melsa, Literæ Cantuarienses (all in Rolls Ser.); Hemingburgh (Engl. Hist. Soc.); Thorn in Twysden's Decem Scriptores; Chron. de Lanercost (Bannatyne Club); Rymer's Fœdera; Hist. MSS. Comm. 5th and 8th Rep.; Parl. Writs; Rolls of Parl. vol. i.; Cal. of Papal Letters, vols. i. and ii.; Cal. of Patent and Close Rolls, Edw. I and Edw. II; Le Neve's Fasti Eccl. Angl. ed. Hardy; Godwin, De Præsulibus, 1743; Somner's Antiquities of Canterbury. The best modern accounts are in Stubbs's Const. Hist. vol. ii. and prefaces to the Chron. of Edw. I and Edw. II (Rolls Ser.); Hook's Life in Archbishops of Canterbury (iii. 368–454), though elaborate, is careless in details and unhistorical in tone; many extracts from Winchelsea's register, still at Lambeth, are given in Wilkins's Concilia, ii. 185–423; the whole well deserves calendaring or publishing.]

WINCHESTER,. [See , 1485?–1573, first ;, 1535? –1598, third ;, 1598–1675, fifth .]


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 were at that time ruled by Latinus, the son of Faunus. He came ashore at Laurentum, by the mouth of the river Numicius, where in obedience to some oracle he is said to have made preparations to dwell. The ruler of the land, Latinus, tried to prevent his settling in the land, and joined in battle with him, but was defeated. Then, as the result of dreams that appeared to both leaders, they effected a reconciliation, and Latinus both granted the other a settlement there and gave him his daughter Lavinia in marriage. Thereupon Aeneas founded a city, which he named Lavinium; and the country was called Latium, and the people there were termed Latins.

landed near Laurentum, called also Troy, near the River Numicius, along with his son by Creusa—Ascanius or Ilus. There his followers ate their tables, which were of parsley or of the harder portions of bread loaves; for they had no real tables. Furthermore, a white sow leaped from his boat and running to the Alban mount, named after her, gave birth to a litter of thirty, which indicated that in the thirtieth year his children should get fuller possession of both land and sovereignty. Since he had heard of these portents beforehand from an oracle he ceased his wanderings, sacrificed the sow, and prepared to found a city. Latinus would not allow him to do this; but after being defeated in war, he gave Aeneas his daughter Lavinia in marriage. Aeneas then founded a city and called it Lavinium.