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 language for the benefit of students? Are we not told that Bishop Landa acquired a great proficiency in it? Was he not for many years a teacher of it? Has he not composed a grammar of that tongue for the use of his pupils? What right, then, have men in our age, innocent of all knowledge of Maya language, even as spoken to-day, however great may be their attainments in any other branch of learning, to pass judgment on, worse still, to condemn, a learned teacher of that language, charging him with ignorance and incompetency, simply because he assigns various meanings to a character?

Perhaps Mr. Champollion le jeune will be branded in like manner, because he tells us that the Egyptians represented indifferently the vowels A, I, 0, E by the character ? "We see effectively," says the learned discoverer of the Egyptian alphabet, "the leaf or feather as their homophones, to mean, according to the occasion, an A, an I, an E, and even an O, as the א (aleph) of the Hebrews. So do we find in the Egyptian tongue, written with Coptic letters, a dialect that uses indifferently α for ο, where the other two write ο only, and ε where the other two write α. We have in the same dialect αβε and οβε — Sitire; ακε — "reed," "rush," Juncus.


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Elk v. Wilkins/Dissent Harlan

HARLAN, J., dissenting.

Mr. Justice WOODS and myself feel constrained to express our dissent from the interpretation which our brethren give to that clause of the fourteenth amendment which provides that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.' The case, as presented by the record, is this: John Elk, the plaintiff in error, is a person of the Indian race. He was born within the territorial limits of the United States. His parents were, at the time of his birth, members of one of the Indian tribes in this country. More than a year, however, prior to his application to be registered as a voter in the city of Omaha, he had severed all relations with his tribe, and, as he alleges, fully and completely surrendered himself to the jurisdiction of the United States. Such surrender was, of course, involved in his act of becoming, as the demurrer to the petition admits that he did become, a bona fide resident of the state of Nebraska. When he applied in 1880 to be registered as a voter, he possessed, as is also admitted, the qualifications of age and residence in state, county, and ward, required for electors by the constitution and laws of that state. It is likewise conceded that he was entitled to be so registered if, at the time of his application, he was a citizen of the United States; for, by the constitution and laws of Nebraska, every citizen of the United States, having the necessary qualifications of age and residence in state, county, and ward, is entitled to vote. Whether he was such citizen is the question presented by this writ of error.

It is said that the petition contains no averment that Elk was taxed in the state in which he resides, or had ever been treated by her as a citizen. It is evident that the court would not have held him to be a citizen of the United States, even if the petition had contained a direct averment that he was taxed; because its judgment, in legal effect, is that, although born within the territorial limits of the United States, he could not, if at his birth a member of an Indian tribe, acquire national citizenship by force of the fourteenth amendment, but only in pursuance of some statute or treaty providing for his naturalization. It would, therefore, seem unnecessary to inquire whether he was taxed at the time of his application to be registered as a voter; for, if the words 'all persons born * *  * in the United States and subject to the jurisdiction thereof' were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states, then, manifestly, the legal status of such Indians is not altered by the fact that they are taxed in those states. While denying that national citizenship, as conferred by that amendment, necessarily depends upon the inquiry whether the person claiming it is taxed in the state of his residence, or has property therein from which taxes may be derived, we submit that the petition does sufficiently show that the plaintiff was taxed, that is, belongs to the class which, by the laws of Nebraska, are subject to taxation. By the constitution and laws of Nebraska all real and personal property, in that state, are subject to assessment and taxation. Every person of full age and sound mind, being a resident thereof, is required to list his personal property for taxation. Const. Neb. art. 9, § 1; Comp. St. Neb. c. 77, pp. 400, 401. Of these provisions upon the subject of taxation this court will take judicial notice. Good pleading did not require that they should be set forth, at large, in the petition. Consequently, an averment that the plaintiff is a citizen and bona fide resident of Nebraska implies, in law, that he is subject to taxation, and is taxed, in that state. Further: The plaintiff has become so far incorporated with the mass of the people of Nebraska that being, as the petition avers, a citizen and resident thereof, he constitutes a part of her militia. Comp. St. Neb. c. 56. He may, being no longer a member of an Indian tribe, sue and be sued in her courts. And he is counted in every apportionment of representation in the legislature; for the requirement of her constitution is that 'the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed, and soldiers and officers of the United States army.' Const. Neb. art. 3, § 1.

At the adoption of the constitution there were, in many of the states, Indians, not members of any tribe, who constituted a part of the people for whose benefit the state governments were established. This is apparent from that clause of article 1, § 3, which requires, in the apportionment of representatives and direct taxes among the several states 'according to their respective numbers,' the exclusion of 'Indians not taxed.' This implies that there were, at that time, in the United States, Indians who were taxed; that is, were subject to taxation by the laws of the state of which they were residents. Indians not taxed were those who held tribal relations, and therefore were not subject to the authority of any state, and were subject only to the authority of the United States, under the power conferred upon congress in reference to Indian tribes in this country. The same provision is retained in the fourteenth amendment; for, now, as at the adoption of the constitution, Indians in the several states, who are taxed by their laws, are counted in establishing the basis of representation in congress. By the act of April 9, 1866, entitled 'An act to protect all persons in the United States in their civil rights, and furnish means for their vindication,' (14 St. 27,) it is provided that 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.' This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States. Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States. But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race, (excluding only 'Indians not taxed,') who were born within the territorial limits of the United States, and were not subject to any foreign power. Surely every one must admit that an Indian residing in one of the states, and subject to taxation there, became, by force alone of the act of 1866, a citizen of the United States, although he may have been, when born, a member of a tribe. The exclusion of Indians not taxed evinced a purpose to include those subject to taxation in the state of their residence. Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in respect to persons of the Indian race residing in the United States or territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished statesmen and lawyers participated in the senate of the United States when the act of 1866 was under consideration.

In the bill as originally reported from the judiciary committee there were no words excluding 'Indians not taxed' from the citizenship proposed to be granted. Attention being called to this fact, the friends of the measure disclaimed any purpose to make citizens of those who were in tribal relations, with governments of their own. In order to meet that objection, while conforming to the wishes of those desiring to invest with citizenship all Indians permanently separated from their tribes, and who, by reason of their residence away from their tribes, constituted a part of the people under the jurisdiction of the United States, Mr. Trumbull, who reported the bill, modified it by inserting the words 'excluding Indians not taxed.' What was intended by that modification appears from the following language used by him in debate: 'Of course we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens. They must be excepted. The constitution of the United States excludes them from the enumeration of the population of the United States when it says that Indians not taxed are to be excluded. It has occurred to me that, perhaps, the amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding Indians not taxed, and not subject to any foreign power, shall be deemed citizens of the United States.' Cong. Globe, (1st Sess. 39th Congress,) p. 527. In replying to the objections urged by Mr. Hendricks to the bill even as amended, Mr. Trumbull said: 'Does the senator from Indiana want the wild roaming Indians, not taxed, not subject to our authority, to be citizens of the United States persons that are not to be counted, in our government? If he does not, let him not object to this amendment that brings in even [only] the Indian when he shall have cast off his wild habits, and submitted to the laws of organized society and become a citizen.' Id. 528.

The entire debate shows, with singular clearness, indeed, with absolute certainty, that no senator who participated in it, whether in favor of or in opposition to the measure, doubted that the bill as passed admitted, and was intended to admit, to national citizenship Indians who abandoned their tribal relations and became residents of one of the states or territories, within the full jurisdiction of the United States. It was so interpreted by President Johnson, who, in his veto message, said: 'By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.'

It would seem manifest, from this brief review of the history of the act of 1866, that one purpose of that legislation was to confer national citizenship upon a part of the Indian race in this country-such of them, at least, as resided in one of the states or territories, and were subject to taxation and other public burdens. And it is to be observed that, whoever was included within the terms of the grant contained in that act, became citizens of the United States without any record of their names being made. The citizenship conferred was made to depend wholly upon the existence of the facts which the statute declared to be a condition precedent to the grant taking effect. At the same session of the congress which passed the act of 1866, the fourteenth amendment was approved and submitted to the states for adoption. Those who sustained the former urged the adoption of the latter. An examination of the debates, pending the consideration of the amendment, will show that there was no purpose on the part of those who framed it, or of those who sustained it by their votes, to abandon the policy inaugurated by the act of 1866, of admitting to national citizenship such Indians as were separated from their tribes and were residents of one of the states or territories outside of any reservation set apart for the exclusive use and occupancy of Indian tribes.

Prior to the adoption of the fourteenth amendment, numerous statutes were passed with reference to particular bodies of Indians, under which the individual members of such bodies, upon the dissolution of their tribal relations, or upon the division of their lands derived from the government, became, or were entitled to become, citizens of the United States by force alone of the statute, without observing the forms required by the naturalization laws in the case of a foreigner becoming a citizen of the United States. Such was the statute of March 3, 1839, (5 St. 349,) relating to the Brothertown Indians in the then territory of Wisconsin. Congress consented that the lands reserved for their use might be partitioned among the individuals composing the tribe. The act required the petition to be evidenced by a report and map to be filed with the secretary of the interior, by whom it should be transmitted to the president; whereupon the act proceeded: 'The said Brothertown Indians, and each and every of them, shall then be deemed to be, and from that time forth are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens,' etc. Similar legislation was enacted with reference to the Stockbridge Indians. 5 St. 646, 647. Legislation of this character has an important bearing upon the present question, for it shows that prior to the adoption of the fourteenth amendment it had often been the policy of congress to admit persons of the Indian race to citizenship upon their ceasing to have tribal relations, and without the slightest reference to the fact that they were born in tribal relations. It shows, also, that the citizenship thus granted was not, in every instance, required to be evidenced by the record of a court. If it be said that the statutes prior to 1866, providing for the admission of Indians to citizenship, required in their execution that a record be made of the names of those who thus acquired citizenship, our answer is that it was entirely competent for congress to dispense, as it did in the act of 1866, with any such record being made in a court, or in any department of the government. And certainly it must be conceded that except in cases of persons 'naturalized in the United States,' (which phrase refers only to those who are embraced by the naturalization laws, and not to Indians,) the fourteenth amendment does not require the citizenship granted by it to be evidenced by the record of any court, or of any department of the government. Such citizenship passes to the person, of whatever race, who is embraced by its provisions, leaving the fact of citizenship to be determined, when it shall become necessary to do so in the course of legal inquiry, in the same way that questions as to one's nativity, domicile, or residence are determined.

If it be also said that, since the adoption of the fourteenth amendment, congress has enacted statutes providing for the citizenship of Indians, our answer is that those statutes had reference to tribes, the members of which could not, while they continued in tribal relations, acquire the citizenship granted by the fourteenth amendment. Those statutes did not deal with individual Indians who had severed their tribal connections and were residents within the states of the Union, under the complete jurisdiction of the United States. There is nothing in the history of the adoption of the fourteenth amendment which, in our opinion, justifies the conclusion that only those Indians are included in its grant of citizenship who were, at the time of their birth, subject to the complete jurisdiction of the United States. As already stated, according to the doctrines of the court, in this case,-if we do not wholly misapprehend the effect of its decision,-the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been, at the time it was adopted, a permanent resident of one of the states, subject to taxation, and, in fact, paying property and personal taxes, to the full extent required of the white race in the same state.

When the fourteenth amendment was pending in the senate of the United States, Mr. Doolittle moved to insert after the words 'subject to the jurisdiction thereof,' the words 'excluding Indians not taxed.' His avowed object in so amending the measure was to exclude, beyond all question, from the proposed grant of national citizenship, tribal Indians who-since they were, in a sense, subject to the jurisdiction of the United States-might be regarded as embraced in the grant. The proposition was opposed by Mr. Trumbull and other friends of the proposed constitutional amendment, upon the ground that the words 'Indians not taxed' might be misconstrued, and also because those words were unnecessary, in that the phrase 'subject to the jurisdiction thereof' embraced only those who were subject to the complete jurisdiction of the United States, which could not be properly said of Indians in tribal relations. But it was distinctly announced by the friends of the amendment that they intended to include in the grant of national citizenship Indians who were within the jurisdiction of the states, and subject to their laws, because such Indians would be completely under the jurisdiction of the United States. Said Mr. Trumbull: 'It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.' Cong. Globe, pt. 4, (1st Sess. 39th Cong.) pp. 2890-2893. Alluding to the phrase 'Indians not taxed,' he remarked that the language of the proposed constitutional amendment was better than that of the act of 1866 passed at the same session. He observed: 'There is a difficulty about the words 'Indians not taxed.' Perhaps one of the reasons why I think so is because of the persistency with which the senator from Indiana himself insisted that the phrase 'Indians not taxed,' the very words which the senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The senator from Maryland did not agree to that, nor did I; but, if the senator from Indiana was right, it would receive a construction which, I am sure, the senator from Wisconsin would not be for, for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.' Id. 2894.

A careful examination of all that was said by senators and representatives, pending the consideration by congress of the fourteenth amendment, justifies us in saying that every one who participated in the debates, whether for or against the amendment, believed that, in the form in which it was approved by congress, it granted, and was intended to grant, national citizenship to every person of the Indian race in this country who was unconnected with any tribe, and who resided, in good faith, outside of Indian reservations and within one of the states or territories of the Union. This fact is, we think, entitled to great weight in determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U.S. 57; S.C.. 4 SUP. CT. REP. 279. In this connection we refer to an elaborate report made by Mr. Carpenter, to the senate of the United States, in behalf of its judiciary committee, on the fourteenth of December, 1870. The report was made in obedience to an instruction to inquire as to the effect of the fourteenth amendment upon the treaties which the United States had with various Indian tribes of the country. The report says: 'For these reasons your committee do not hesitate to say that the Indian tribes within the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to which they belong, are not, within the meaning of the fourteenth amendment, 'subject to the jurisdiction' of the United States, and therefore that such Indians have not become citizens of the United States by virtue of that amendment; and, if your committee are correct in this conclusion, it follows that the treaties heretofore made between the United States and the Indian tribes are not annulled by that amendment.' The report closes with this significant language: 'It is pertinent to say, in concluding this report, that treaty relations can properly exist with Indian tribes or nations only, and that, when the members of any Indian tribe are scattered, they are merged in the mass of our people, and become equally subject to the jurisdiction of the United States.'

The question before us has been examined by a writer upon constitutional law whose views are entitled to great respect. Judge COOLEY, referring to the definition of national citizenship as contained in the fourteenth amendment, says: 'By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either state or territorial, are extended, they are protected by, and, at the same time, held amenable to, those laws in all their intercourse with the body politic, and with the individuals composing it; but they are also, as a quasi foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are 'subject to the jurisdiction' of the United States only in a much qualified sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights-or, on the other hand, subjected to the full responsibilities-of American citizens. It would not for a moment be contended that such was the effect of this amendment. When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant.' 2 Story, Const. (Cooley's Ed.) § 1933, p. 654. To the same effect are Ex parte Kenyon, 5 Dill. 390; Ex parte Reynolds, Id. 397; U.S. v. Crook, Id. 454; U.S. v. Elm, Dist. Ct. U.S., N. D. N. Y. 23 Int. Rev. Rec. 419.

It seems to us that the fourteenth amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our states and territories at the time the amendment was submitted by congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the congress which submitted, and the people who adopted that amendment intended to confer citizenship, national and state, upon the entire population in this country of African descent, (the larger part of which was shortly before held in slavery,) and, by the same constitutional provision, to exclude from such citizenship Indians who had never been in slavery, and who, by becoming bona fide residents of states and territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life, and become a part of the people of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States upon the ground that his parents were, when he was born, members of an Indian tribe; for, if he can be excluded upon any such ground, it must necessarily follow that the fourteenth amendment did not grant citizenship even to Indians who, although born in tribal relations, were, at its adoption, severed from their tribes, subject to the complete jurisdiction as well of the United States as of the state or territory in which they resided.

Our brethren, it seems to us, construe the fourteenth amendment as if it read: 'All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside;' whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States. This would not include the children born in this country of a foreign minister, for the reason that, under the fiction of extraterritoriality as recognized by international law, such minister, 'though actually in a foreign country, is considered still to remain within the territory of his own state,' and, consequently, he continues 'subject to the laws of his own country, both with respect to his personal status and his rights of property; and his children, though born in a foreign country, are considered as natives.' Halleck, Int. Law, c. 10, § 12. Nor was plaintiff born without the jurisdiction of the United States in the same sense that the subject of a foreign state, born within the territory of that state, may be said to have been born without the jurisdiction of our government. For, according to the decision in Cherokee Nation plaintiff were members was not 'a foreign state, in the sense of the constitution,' but a domestic dependent people, 'in a state of pupilage,' and 'so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered an invasion of our territory and an act of hostility.' They occupied territory which the court, in that case, said composed 'a part of the United States,' the title to which this nation asserted independent of their will. 'In all our intercourse with foreign nations,' said Chief Justice MARSHALL in the same case, 'in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our citizens. * *  * They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.' And, again, in U.S. v. Rogers, 4 How. 572, this court, speaking by Chief Justice TANEY, said that it was 'too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority.' The Cherokee Tobacco, 11 Wall. 616. Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the states, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race. If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the fourteenth amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

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

title: Elk v. Wilkins/Dissent Harlan


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Page:Travels to Discover the Source of the Nile - In the Years 1768, 1769, 1770, 1771, 1772, and 1773 volume 2.djvu/142

 then the latter became rich, from the gold, ivory, coffee, cattle, hides, and all manner of provision, procured by the former from every part of the mountainous tract above it. Trade flourished and plenty followed it. The merchants carried every species of goods to the most distant provinces in safety, equally to the advantage of Abyssinia and Adel. These advantages, so sensibly felt, were maintained by bribery, and a constant circulation of Mahometan gold in the court of Abyssinia; the kingdom, however, thus prospered. A war with Adel, on the contrary, had its origin in a violent desire of a barbarous people, such as the Abyssinians were, to put themselves in possession of riches which their neighbours had gained by trade and industry.

saw that, even in this the worst of cafes, nothing utterly destructive could possibly happen to the Abyssinians; in their inroads into that country, they plundered the markets and got, at the risk of their lives, India stuffs of every kind, for which else they would have paid money. On the other hand, the people of Adel, when conquerors, acquired no stuffs, no manufactures, but the persons of the Abyssinians themselves, whom they carried into slavery, and sold in Arabia, and all parts of Asia, at immense profits. Next to gold they are the most agreeable and valuable merchandise in every part of the east; and these again, being chiefly the idle people who delighted in war, their absence promoted the more desirable event of peace.

this state we see that war was but another species of commerce between the two countries, though peace was the most eligible state for them both; and this the empress Helena had constantly endeavoured to maintain, but could


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Butchers' Union Slaughter-House Live-Stock Landing Company v. Crescent Slaughter-House Company/Concurrence Field

FIELD, J., concurring.

I concur in the doctrine declared in the opinion of the court, that the legislature cannot, by contract with an individual or corporation, restrain, diminish, or surrender its power to enact laws for the preservation of the public health or the protection of the public morals. This is a principle of vital importance, and its habitual observance is essential to the wise and valid execution of the trust committed to the legislature. But there are some provisions in the act of Louisiana upon which the appellees rely that have not been referred to, and which, from the interest excited by the decision rendered when that act was before us in the Slaughter-house Cases, should be mentioned in connection with the views now expressed. 16 Wall. 36. No one of the judges who then disagreed with the majority of the court denied that the states possessed the fullest power ever claimed by the most earnest advocate of their reserved rights, to prescribe regulations affecting the health, the good order, the morals, the peace, and the safety of society within their respective limits. When such regulations do not conflict with any constitutional inhibition or natural right, their validity cannot be successfully controverted. The general government was not formed to interfere with or control them. No aid was required from any external authority for their enforcement. It was only for matters which concerned all the states, and which could not be efficiently or advantageously managed by them separately, that a general and common government was desired. And the recent amendments to the constitution have not changed nor diminished their previously existing power to legislate respecting the public health and public morals. But though this power rests with them, it cannot be admitted that, under the pretense of providing for the public health or public morals, they can encroach upon rights which those amendments declare shall not be impaired. The act of Louisiana required that the slaughtering of cattle and the preparation of animal food for market should be done outside of the limits of the city of New Orleans. It was competent to make this requirement, and, furthermore, to direct that the animals, before being slaughtered, should be inspected, in order to determine whether they were in a fit condition to be prepared for food. The dissenting judges in the Slaughte -house Cases found no fault with these provisions, but, on the contrary, approved of them. Had the act been limited to them, there would have been no dissent from the opinion of the majority. But it went a great way beyond them. It created a corporation, and gave to it an exclusive right for 25 years to keep, within an area of 1,145 square miles, a place where alone animals intended for slaughter could be landed and sheltered, and where alone they could be slaughtered and their meat prepared for market. It is difficult to understand how in a district embracing a population of a quarter of a million, any conditions of health can require that the preparation of animal food should be intrusted to a single corporation for 25 years, or how in a district of such extent there can be only one place in which animals can, with safety to the public health, be sheltered and slaughtered. In the grant of these exclusive privileges a monopoly of an ordinary employment and business was created. A monopoly is defined 'to be an institution or allowance from the sovereign power of the state, by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before or hindered in their lawful trade,' All grants of this kind are void at common law, because they destroy the freedom of trade, discourage labor and industry, restrain persons from getting an honest livelihood, and put it in the power of the grantees to enhance the price of commodities. They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment.

The oppressive nature of the principle upon which the monopoly here was granted will more clearly appear if it be applied to other vocations than that of keeping cattle and of preparing animal food for market,-to the ordinary trades and callings of life,-to the making of bread, the raising of vegetables, the manufacture of shoes and hats, and other articles of daily use. The granting of an exclusive right to engage in such vocations would be repudiated in all communities as an invasion of common right. The state undoubtedly may require many kinds of business to be carried on beyond the thickly settled portions of a city, or even entirely without its limits, especially when attendant odors or noises affect the health or disturb the peace of the neighborhood; but the exercise of this necessary power does not warrant granting to a particular class or to a corporation a monopoly of the business thus removed. It may be that, for the health or safety of a city, the manufacture of beer, or soap, or the smelting of ores, or the casting of machinery should be carried on without its limits, yet it would hardly be contended that the power thus to remove the business beyond certain limits would authorize the granting of a monopoly of it to any one or more persons. And if not a monopoly in business of this character, how can a monopoly for like reasons be granted in the business of preparing animal food for market, or of yarding and sheltering cattle intended for slaughter?

As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: 'We hold these truths to be self-evident'-that is, so plain that their truth is recognized upon their mere statement-'that all men are endowed'-not by edicts of emperors, or deerees of parliament, or acts of congress, but 'by their Creator with certain inalienable rights.'-that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime-'and tha among these are life, liberty, and the pursuit of happiness; and to secure these'-not grant them, but secure them-'governments are instituted among men, deriving their just powers from the consent of the governed.' Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hinderance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' Smith, Wealth Nat. bk. 1, c. 10.

In this country it has seldom been held, and never in so odious a form as is here claimed, that an entire trade and business could be taken from citizens and vested in a single corporation. Such legislation has been regarded everywhere else as inconsistent with civil liberty. That exists only where every individual has the power to pursue his own happiness according to his own views, unrestrained except by equal, just, and impartial laws. The act of Lousiana compelled more than a thousand persons to abandon their regular business, and to surrender it to a corporation to which was given an exclusive right to pursue it for 25 years. What was lawful to these thousand persons the day before the law took effect was unlawful the day afterwards. With what intense indignation would a law be regarded that should, in like manner, turn over the common trades of the community to a single corporation. I cannot believe that what is termed in the declaration of independence a Godgiven and an inalienable right can be thus ruthlessly taken from the citizen, or that there can be any abridgment of that right except by regulations alike affecting all persons of the same age, sex, and condition. It cannot be that a state may limit to a specified number of its people the right to practice law, the right to practice medicine, the right to preach the gospel, the right to till the soil, or to pursue particular business or trades, and thus parcel out to different parties the various vocations and callings of life. The first section of the fourteenth amendment was, among other things, designed to prevent all discriminating legislation for the benefit of some to the disparagement of others; and when rightly enforced as other prohibitions upon the state, not by legislation of a penal nature, but through the courts, no one will complain. The disfranchising provisions of the third section naturally created great hostility to the whole amendment. They were regarded by many wise and good men as impolitic, harsh, and cruel; and the manner in which the first section has been enforced by penal enactments against legislators and governors has engendered wide-spread and earnest hostility to it. Communities, like individuals, resent even fa ors ungraciously bestowed. The appropriate mode of enforcing the amendment is, in my judgment, that which has been applied to other previously existing constitutional prohibitions, such as the one against a state passing a law impairing the obligation of contracts, or a bill of attainder, or an ex post facto law. The only provisions deemed necessary to annul legislation of this kind have been such as facilitated proceedings for that purpose in the courts; no other can be appropriate against the action of a state. Thus enforced, there would be little objection to the provisions of the first section of the amendment. No one would object to the clause forbidding a state to abridge the privileges and immunities of citizen of the United States; that is, to take away or impair their fundamental rights. No one would object to the clause which declares that no state shall deprive any person of life, liberty, or property without due process of law, nor to the provision which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. If the first section of the amendment is thus applied as a restriction against the impairment of fundamental rights, it will not transfer to the federal government the protection of all private rights, as is sometimes supposed, any more than the inhibition against impairing the obligation of contracts transfers to the federal government the cognizauce of all contracts. It does not limit the subjects upon which the states can legislate. Upon every matter, in relation to which previously to its adoption they could have acted, they may still act. They can now, as then, legislate to promote health, good order, and peace, to develop their resources, enlarge their industries, and advance their properity. It only inhibits discriminating and partial enactments,-favoring some to the impairment of the rights of others. The principal, if not the sole, purpose of its prohibitions is to prevent any arbitrary invasion by state authority of the rights of person and property, and to secure to every one the right to pursue his happiness unrestrained, except by just, equal, and impartial laws.

The first section of the amendment is stripped of all its protective force, if its application be limited to the privileges and immunities of citizens of the United States as distinguished from citizens of the states, and thus its prohibition be extended only to the abridgment or impairment of such rights, as the right to come to the seat of government, to secure any claim they may have upon that government, to transact any business with it, to seek its protection, to share its offices, to engage in administering its functions, to have free access to its seaports, to demand its care and protection over life, liberty, and property on the high seas, or within the jurisdiction of a foreign government, the right to peaceably assemble and petition for redress of grievances, and the right to use the navigable waters of the United States,-which are specified in the opinion in the Slaughter-house Cases as the special rights of such citizens. If thus limited, nothing was accomplished by adopting it. The states could not previously have interfered with these privileges and immunities, or any other privileges and immunities which citizens enjoyed under the coustitution and laws of the United States. Any attempted impairment of them could have been as successfully resisted then as now. The constitution and laws of the United States were as much then as now the supreme law of the land, which all officers of the state governments were then, as now, bound to obey.

While, therefore, I fully concur in the decision of the court that it was entirely competent for the state to annul the monopoly features of the original act incorporating the plaintiff, I am of opinion that the act, in creating the monopoly in an ordinary employment and business, was to that extent against common right, and void.


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Butchers' Union Slaughter-House Live-Stock Landing Company v. Crescent Slaughter-House Company/Concurrence Bradley

BRADLEY, J.

I concur in the judgment of the court in this case, reversing the judgment of the circuit court. I think that the act of the legislature of Louisiana incorporating the Crescent City Live-stock Landing & Slaughter-house Company, and granting to said company for 25 years the exclusive right to erect and maintain stock-landings and slaughter-houses within the limits of the parishes of Orleans, Jefferson, and St. Bernard was not a valid contract, binding upon the state of Louisiana, and protected by the constitution of the United States from alteration or repeal; but my reasons for this opinion are different from those stated in the opinion of the court. They are not based on the ground that the act was a police regulation. The monopoly clause in the act was clearly not such. It had nothing of the character of a police regulation. That part of the act which regulated the position on the river, relatively to the city of New Orleans, in which slaughter-houses and stock landings should be built, was a police regulation, proper and necessary to prevent the offal of such establishments from floating on the water in front of the city. But such a regulation could be complied with by any butcher erecting a slaughter-house, or by any wharfinger erecting a stock landing; and so could every other real police regulation contained in the act. The police regulations proper were hitched on to the charter as a pretext. The exclusive right given to the company had nothing of police regulation about it whatever. It was the creation of a mere monopoly, and nothing else; a monopoly without consideration and against common right; a monopoly of an ordinary employment and business, which no legislature has power to farm out by contract. Suppose a law should be passed forbidding the erection of any bakery or brewery or soap manufactory within the fire-district, or any other prescribed limits in a large city. That would clearly be a police regulation; but would it be a police regulation to attach to such a law the grant to a single corporation or person of the exclusive right to erect bakeries, breweries, or soap manufactories at any place within 10 miles of the city? Every one would cry out against it as a pretense and an outrage.

I hold it to be an incontrovertible proposition of both English and American public law, that all mere monopolies are odious, and against common right. The practice of granting them in the time of Elizabeth came near creating a revolution. But parliament, then the vindicator of the public liberties, intervened, and passed the act against monopolies. 21 Jas. I. c. 3. The courts had previously, in the last year of Elizabeth, in the great Case of Monopolies, 11 Rep. 84b, decided against the legality of royal grants of this kind. That was only the case of the sole privilege of making cards within the realm; but it was decided on the general principle that all monopoly patents were void, both at common law and by statute, unless granted to the introducerof a new trade or engine, and then for a reasonable time only; that all trades, as well mechanical as others, which prevent idleness, and enable men to maintain themselves and their families, are profitable to the commonwealth, and therefore the grant of the sole exercise thereof is against not only the common law, 'but the benefit and liberty of the subject.' It was in view of this decision, and in accordance with the principles established by it, that the act of 21 Jas. I. was passed abolishing all monopolies, with the exception f 'letters patent and grants of privileges, for the term of fourteen years or under, of the sole working or vending of any manner of new manufactures to the true and first inventor and inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not us.' As a mere declaration of the common and statute law of England, the Case of Monopolies, and the act of 21 Jas. I., would have but little influence on the question before us, which concerns the power of the legislature of a state to create a monopoly. But those public transactions have a much greater weight than as mere declarations and enactments of municipal law. They form one of the constitutional landmarks of British liberty, like the petition of right, the habeas corpus act, and other great constitutional acts of parliament. They established and declared one of the inalienable rights of freemen which our ancestors brought with them to this country. The right to follow any of the common occupations of life is an inalienable right, it was formulated as such under the phrase 'pursuit of happiness' in the declaration of independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen. To deny it to all but a few favored individuals, by investing the latter with a monopoly, is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures.

I do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. There are such. The granting of patents for inventions, and copyrights for books, is one instance already referred to. This is done upon a fair consideration, and upon grounds of public policy. Society gives to the inventor or author the exclusive benefit for a time of that which, but for him, would not, or might not, have existed; and thus not only repays him, but encourages others to apply their powers for the public utility. So, an exclusive right to use franchises, which could not be exercised without legislative grant, may be given; such as that of constructing and operating public works, railroads, ferries, etc. In such cases a part of the public duty is farmed out to those willing to undertake the burden for the profit incidentally arising from it. So, licenses may be properly required in the pursuit of many professions and avocations which require peculiar skill or supervision for the public welfare. But in such cases there is no real monopoly. The profession or avocation is open to all alike who will prepare themselves with the requisite qualifications, or give the requisite security for preserving public order; except in certain cases, such as the sale of intoxicating drinks, where the interests of society require regulation as to the mumber of establishments, as well as the character of those who carry them on. All such regulations as are here enumerated are entirely competent to the legislature to make. But this concession does not in the slightest degree affect the proposition, (which I deem a fundamental one,) that the ordinary pursuits of life, forming the large mass of industrial avocations, are and ought to be free and open to all, subject only to such general regulations, applying equally to all, as the general good may demand; and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizen as exhibited in one of its most important aspects,-the liberty of pursuit. But why is such a grant beyond the legislative power, and contrary to the constitution? The four eenth amendment of the constitution, after declaring that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside, goes on the declare that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' I hold that a legislative grant, such as that given to the appellees in this case, is an infringement of each of these prohibitions. It abridges the privileges of citizens of the United States; it deprives them of a portion of their liberty and property without due process of law; and it denies to them the equal protection of the laws.

1. I hold that the liberty of pursuit-the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States. It was held by a majority of the court in the former decision of the Slaughter-house Cases, 16 Wall. 57, that the 'privileges and immunities of citizens of the United States,' mentioned and referred to in the fourteenth amendment, are only those privileges and immunities which were created by the constitution of the United States, and grew out of it, or out of laws passed in pursuance of it. I then held, and still hold, that the phrase has a broader meaning; that it includes those fundamental privileges and immunities which belong essentially to the citizens of every free government, among which Mr. Justice WASHINGTON enumerates the right of protection; the right to pursue and obtain happiness and safety; the right to pass through and reside in any state for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; and to take, hold, and dispose of property, either real or personal. Corfield v. Corryell, 4 Wash. C. C. 381. These rights are different from the concrete rights which a man may have to a specific chattel or a piece of land, or to the performance by another of a particular contract, or to damages for a particular wrong, all which may be invaded by individuals; they are the capacity, power, or privilege of having and enjoying those concrete rights, and of maintaining them in the courts, which capacity, power, or privilege can only be invaded by the state. These primordial and fundamental rights are 'the privileges and immunities of citizens' which are referred to in the fourth article of the constitution and in the fourteenth amendment to it. In the former, it is declared that 'the citizens of each state shall be entitled to ALL PRIVILEGES AND IMMUNITIES OF CITIZENS in the several states; that is, in the other states. It was this declaration which Justice WASHINGTON was expounding when he defined what was meant by 'privileges and immunities of citizens.' The fourteenth amendment goes further, and declares that 'no state shall abridge the privileges and immunities of citizens of the United States;' which includes the citizens of the state itself, as well as the citizens of other states. In my opinion, therefore, the law which created the monopoly in question did abridge the privileges of all other citizens, when it gave to the appellees the sole power to have and maintain stock landings and slaughter-houses within the territory named, because these are among those ordinary pursuits and callings which every citizen has a right to follow if he will, subject, of course, to regulations equally open to all.

2. But if it does not abridge the privileges and immunities of a citizen of the United States of prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty, for it takes from him the fre dom of adopting and following the pursuit which he prefers, which, as already intimated, is a material part of the liberty of the citizen. And if a man's right to his calling is property, as many maintain, then those who had already adopted the prohibited pursuits in New Orleans were deprived by the law in question of their property as well as their liberty without due process of law.

3. But still more apparent is the violation, by this monopoly law, of the last clause of the section,-'no state shall deny to any person the equal protection of the laws.' If it is not a denial of the equal protection of the laws to grant to one man or set of men the privilege of following an ordinary calling in a large community and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition. Monopolies are the bane of our body politic at the present day. In the eager pursuit of gain they are sought in every direction. They exhibit themselves in corners in the stock market and produce market, and in many other ways. If by legislative enactment they can be carried into the common avocations and callings of life, so as to cut off the right of the citizen to choose his avocation, the right to earn his bread by the trade which he has learned,-and if there is no constitutional means of putting a check to such enormity, I can only say that it is time the constitution was still further amended. In my judgment, the present constitution is amply sufficient for the protection of the people if it is fairly interpreted and faithfully enforced.

HARLAN and WOODS, JJ., concur.


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Doe v. Commonwealth's Atty. for City of Richmond

John D. Grad, Alexandria, Va. (Philip J. Hirschkop), Alexandria, Va., for plaintiffs.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen.), Richmond, Va., for defendants.

Before Bryan, Senior Circuit Judge, Lewis, Senior District Judge, and Merhige, District Judge.


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Page:U.S. Department of the Interior Annual Report 1881.djvu/20

XVIII Baker City with the Oregon system of railroads, and thus acquire an outlet to the Pacific coast, independent of the Central Pacific. It is represented that the work will be completed at an early date.

The Central Pacific Railroad Company has, by lease of the Southern Pacific of Arizona and New Mexico, which is now completed to Deming, N. Mex., and there connects with the Atchison, Topeka and Santa Fé Railroad, secured a through route from the Pacific coast, independent of the Union Pacific.

The Atlantic and Pacific Railroad is being rapidly constructed from the east and the west.

THE UNION PACIFIC RAILWAY COMPANY.

The property and business of this company is reported on in full, and has been found in good condition, with business increasing.

The company has furnished reports, from which the following statements are derived:

The following statement shows the earnings for the fiscal year ending June 30, 1881, as per reports submitted by the company:


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Page:Folk-lore - A Quarterly Review. Volume 10, 1899.djvu/324

 286 times (and most frequently) a "malin personnage," who is surnamed "le rusé compère" (Nwa-Chisisana), sometimes "un nigaud," who is taken in by the Swallow, and even by the Hen. M. Junod suggests that his contention is borne out by the circumstance that the two tales in his collection which most strongly exhibit the Rabbit in this light are really Makua stories, imported from Mozambique.

I do not feel competent to give an opinion on this matter, but would like to mention one or two points which may or may not be relevant. Among the Mang'anja tales I collected at Blantyre and in the West Shire district are two variants (one very imperfect) of the tale called by M. Junod "Le Lièvre et l'Hirondelle." In one it is the Cock (tambala) who is overreached (with tragic results) by the Swallow; in the other the Rabbit's place is taken by the Cat, and it is a small bird (the ntengu) who is too sharp for him. Again, many of the Kalulu stories (and he figures in the great majority) consist of two parts; in the first. Brer Rabbit is fooled by some one, by preference the Dzimwe; in the second he goes one better and turns the tables on his adversary. In one, the Crocodile kills the Rabbit's wife, but the latter employs the Wood-pigeon to entice the Crocodile ashore, and then kills him. So universally is the Kalulu's superiority insisted on, that I am inclined to think that the tales showing him as the defeated party (I can only recall one at this moment) are incomplete, and, like Cambuscan's, left half-told.

I may add that, to the best of my belief, there is only one Kalulu in the Shire Highlands, and he is quite as much of a hare as he is of a rabbit; more so indeed, for he does not live in warrens, but makes himself a form in the bush, even as our hare at home. In size, if I recollect rightly the fleeting glimpses which were all he ever vouchsafed me, he is something between the two.


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Page:Folk-lore - A Quarterly Review. Volume 10, 1899.djvu/325

 Rh The tale of the Nakami begins in true native fashion: "There was a man; he had a field of bukonzo (dhurra); it ripened. The Rabbit came to eat it. He (i.e. the owner) came; he went to (see) it; he found in it the footmarks of the Rabbit. And he said, The Rabbit, it is he who eats my bukonzo." .... It will be seen that this style of narrative is conducive to longueurs, especially as the speeches of the various characters are reported with Homeric minuteness, and repeated in full every time there is occasion to refer to them. Thus, e.g., if a native has to relate that A gave B a message to convey to C, and C afterwards told the purport of the message to D, the exact words used will recur in extenso at least three times in the narrative.

To return to the Shisumbwa story; it runs, in a slightly condensed paraphrase, something like this: The owner of the field consulted with his neighbours, and they suggested that he should cut a log of wood into the shape of a girl. He did so, and having adorned the figure with cloth and beads, smeared her with gum (bwirembo; elsewhere they say malilolilo), and set it up in his field. When the Rabbit came in the early morning, he saluted her with "Mpola! little girl!" She made no answer. He said again: "Mpola, little girl!" No answer. So he said: "Do you hate your neighbours then? They salute you, and you say nothing. I will come nearer." He came nearer and spoke to her again, but still received no answer. Then he took hold of her, and his hand stuck fast. He said: "Let me go," but could not get away. "Let me go, little girl, there are people coming." He seized her with the other hand, and that, too, stuck fast. "Do let me go, they are coming nearer. I will put my foot on you." He did so; his foot stuck fast, then the other foot. Then he threatened to bite her, and as this produced no effect he tried to do so, and was caught by the mouth. Then he sat on her (it is not easy to see how


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 286 he could have done it under the circumstances), and could not get up again. The people now came up and found him a prisoner. They went to fetch the Muna Mugunda, who loosed him from the gum and carried him off to the village. The culprit, however, had thought of a way of escape. "You man! (obe mugosha) don't kill me, but boil me alive in the pot; I shall boil quickly. If you kill me first, I shall not boil quickly, I shall be hard like a stone." The man listened to his words, and put him into the pot. (As it was still early, we may presume that the water had only just been put on, and was therefore cold.) Then the people all went away to hoe their gardens. At this village, there was a child ill with manoro (a skin disease), and they left him to watch the pot. As soon as they were gone, the Rabbit came out of the pot, seized the boy set to watch, put him in, and then assumed his shape, manoro and all. When the people came back, he said: "Your meat is ready; cook me a mess of bran-porridge (shihere; in Yao, chipere). I do not want any of your meat, it smells bad." The boy's mother made him some shihere, and he went outside to eat it muhumbo—under the eaves by the door. They called him to come and sit beside them, but he refused. When he saw them picking the bones, he muttered: "You are gnawing the bones of your own child." They said: "What do you say, child?" He said: "I only said the flies are biting my sores." When they had finished eating, he ran away, calling out to them as he went: "You have eaten your own child! I am going away!—I, the Rabbit of Ngaraganza." (This might be the same as "Ukalaganza," which seems to be another name for Unyamwezi.) The women cried (lira means both to weep and to cry out; in particular, to raise the "keening" for the dead), but the men pursued him. They had all but caught him, when he ran into a hole. One man put in his hand and seized him by the tail, but he began "fer ter holler," the equivalent to the "Tu'n loose dat stump root an ketch holt er me," uttered by Brer Tarrypin in like case. Like Brer


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 Rh Bar, the man let go his hold of the tail and seized the root; but the episode was not yet at an end, for he pulled as hard as he could, and up came the root. Then they left one man to watch the hole, while the rest went for picks, to dig out Brer Rabbit. As soon as they were gone, he said to the man on guard: "Open your eyes wide, so that you may see the Rabbit when he comes out, and catch him." ("Ecarquille les yeux au terrier," says Père Capus: the meaning seems to be that the man was to put his face close to the entrance of the burrow and look in.) He did so, and the Rabbit threw dust in his eyes and ran past him. He felt something, and quickly clapped his hands over the hole, still blinded (so the narrative seems to imply), and not knowing whether the prisoner had escaped or not. When the others came back they said: "Is he there?" He answered: "He threw sand in my eyes; perhaps he is there." "Perhaps"—Kamba, kanga, kapena—is one of the most subtly characteristic African locutions. No one conversant with native ways can fail to recognise the cautious non-committal answer; the speaker declining to draw any inference, however obvious, from his first statement, or to assume any responsibility for a supposition even to the extent of an "I think." "Has A gone to X?" "Perhaps he has gone." "Are the floods out on the Matope road?" "Kapena they are!" It is only less exasperating, on occasion, than the famous Kaya, of the Mang'anja (Yao, Kwalini), which can only be rendered by the Spanish Quien sabe? and is more comprehensive even than that.

They began to dig. The Rabbit made a circuit (it is to be supposed that he stripped off his skin—as he does in many native tales, or otherwise disguised himself—though this is


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Wikisource:Administrators/Archives/Tannertsf

2011-05 nomination (unsuccessful)

I am nominating myself for an administrator position because I feel I have been a great contributor to Wikisource on many different books and projects. I feel that I could use some of the admin tools for the purpose of bettering Wikisource and I would not use them overbearingly. I am on Wikisource for, on average, around 3-5 hours each day.

 * Question, are you asking for admin rights because it will allow you to better Wikisource or your classroom? RE:Scriptorium & Administrators'_noticeboard, if your experiment at Index:Outlines of European History.djvu works out well you might be able to answer both, but currently it would seem you might have conflicts. JeepdaySock (talk) 16:03, 16 May 2011 (UTC)

In a way, both. - Tannertsf (talk) 00:46, 17 May 2011 (UTC)

 * Support: I believe he should be given these tools because 1) he is a teacher and could use these tools to better his "education", and 2) he has shown a wide range of activity throughout this site that seems good. - Mackenziemrk (talk) 15:46, 17 May 2011 (UTC)
 * Question Mackenziemrk are you voting for Tannertsf because of off wikisource actives, or because you have been watching his activities here on Wikisource and you think he meets or exceeds the needs and excpecations in Adminship? JeepdaySock (talk) 16:39, 17 May 2011 (UTC)

I am voting for him because of mostly his activities on Wikisource. - Mackenziemrk (talk) 17:04, 17 May 2011 (UTC)

Discusion

 * Comment we generally don't award adminship to provide support for off wiki activities. For instance we would not give Bill Gates adminship in order to make Microsoft a better company. I am not likely to support Tannertsf for admin in an effort to improve his classroom activities. I would support for the benefit of Wikisource, though currently it looks like the primary benefit would be for classroom with the chance of some residual benefit to Wikisource (or not). Tannertsf seems like a great editor who has helped on several works, and hopefully will continue to do so.  There is a project w:Wikipedia:Campus Ambassadors that works to create a bridge between schools and Wikipedia.  JeepdaySock (talk) 16:39, 17 May 2011 (UTC)

Archive comment - self withdrawal of nomination

2011-07 nomination (unsuccessful)
I think that User:Tannertsf should be an Administrator here, so I am nominating him. He has helped we with learning Wikisource, and his edits are impressive. I know that I haven't been on here long, but I see that he is good and could use the tools of an admin well. - Lucyrocks=) (talk) 14:53, 4 July 2011 (UTC)
 * Support - From what I've seen, Tannertsf is dedicated, hardworking, polite, and knows the system. - Theornamentalist (talk) 21:13, 4 July 2011 (UTC)
 * Provisional Support (I have some questions) - First, I have interacted with Tannertsf in the past and s/he does indeed seem dedicated and hardworking. Most of Tannertsf's edits are in Page space (65%) and, following a random sampling, it appears to be good work.  A quick and dirty calculation indicates about 300 edits per month (since joining in September 2010). Tannertsf has made some requests in Scriptorium as a teacher regarding selected Index pages; it is reasonable that administrator abilities may be useful in similar circumstances.  Now the questions:-SUL isn't showing any edits on Wikipedia, which seems unusual. Is this true?  Do you have any other identity on Wikimedia?I have deleted proofread pages in the past at your request.  If you had the power to delete pages yourself, how would you handle this? - AdamBMorgan (talk) 21:48, 4 July 2011 (UTC)
 * AdamBMorgan: To answer your questions, I used to have an old account on here (4-5 years ago). I "fell off the map" and in 2010 made a Wikipedia account under this name, where I edited on various articles, but they were very small fix-ups on errors. I found my way back to Wikisource during my researching to find a text from Roman History ... and I've been hooked since. No other accounts except at Commons (for uploading some of my projects (djvu's) and pics for them). If I had that power to delete pages, I would use it only if something I did went very wrong. - Tannertsf (talk) 21:58, 4 July 2011 (UTC)
 * When you say "made a Wikipedia account under this name" (my emphasis) due you mean "Tannertsf"? I ask because w:Special:Contributions/Tannertsf shows no contributions at all.  I don't mean anything by this, everything I've ever seen from you appears to be entirely in good faith, I'm just a little paranoid after a previous time I voted. (I'm OK with your assurance regarding deletions.) - AdamBMorgan (talk) 12:23, 6 July 2011 (UTC)
 * To answer this question, I can honestly say I'm not really sure what I did in the September-November timeframe last year. Personal family things were going on, so I don't remember exactly what I did. I did record some edits on Wikipedia, but it might of been my cousin's "explorations" on it. Essentially, I have not done anything on Wikipedia since last year, because as soon as I found Wikisource I was hooked onto it. I know it sounds bad, but Wikipedia was never a big hit with me, as I wanted to edit and proofread books, not articles.- Tannertsf (talk) 12:52, 6 July 2011 (UTC)
 * Scratch that! I just looked and saw that it wasn't Wikipedia, but Wikibooks, that I used first. Sorry for all the troubles regarding Wikipedia. I was on Wikibooks for 1-2 months and Wikisource thereafter. - Tannertsf (talk) 12:56, 6 July 2011 (UTC)
 * Maybe this was you? - Theornamentalist (talk) 13:34, 6 July 2011 (UTC)
 * Yes. This is the one where my cousin "explored". - Tannertsf (talk) 13:58, 6 July 2011 (UTC)
 * Cool. That's everything. - AdamBMorgan (talk) 17:20, 6 July 2011 (UTC)
 * Not Yet, 2 months ago a self nomination for admin was withdrawn. Now a new contributor has nominated Tannertsf for admin without discussing it on the users talk page I get unpleasant thoughts of meat puppetry considering the implications. JeepdaySock (talk) 11:01, 7 July 2011 (UTC)
 * Hmm, I'm looking at some of Lucyrocks edits. First edit was like on the day of Tannertsf self-nom a couple months ago. And these edits show knowledge of Page: space validation, which typically isn't what most new editors dive right into, but of course there are plenty of exceptions. They also supported Tannertsf's first nom here, which is sort of odd that they even got right into admin nom stuff in like 2 days. Also, Lucyrocks has only edited at en.ws, here, and has never used a talk page, here. I hope there is an explanation for this. - Theornamentalist (talk) 16:43, 7 July 2011 (UTC)

The explanation is that she is my good family friend, that's all. She is a big fan of the internet and was a former user on Distributed Proofreading, which explains the validation issue. I did not know of her plan to nominate me at all - honestly. No "meat puppetry" at all with this. - Tannertsf (talk) 18:00, 7 July 2011 (UTC)
 * I'm going to go with Not yet as well. Much better to be nominated by an established Wikisourceror than a good family friend. Angr 18:15, 7 July 2011 (UTC)
 * Not yet — On review of his edits since he withdrew his nomination a couple of months back, I don't see that Tannertsf is working in areas that require the tools. We are working closely together on proofreading/validating some works and as a result I'm dogging his edits quite intensly at present. If, through this, I see activity for which the admin tools would prove useful I will offer to nominate him at that point. I note that he has not accepted the nomination, and as a result this discussion may be moot. Beeswaxcandle (talk) 05:55, 8 July 2011 (UTC)

I do accept the nomination and, Beeswaxcandle - I know my edits aren't great, but just tell me if you have big problems on that, okay? I try to do my best and enjoy this, not see it as "work". - Tannertsf (talk) 09:49, 8 July 2011 (UTC)
 * Hey, I've said nothing here about the quality of your editing. By "dogging his edits" I mean that at present I'm seeing your footprints in enWS. This is only because I need to know what you've proofread so that I can validate it. If there was a quality issue I would have raised it with you in the same way as I raised the hws issue. I'm referring to the points in Adminship. I don't see you working in the various areas that would make the tools useful to you. Beeswaxcandle (talk) 10:37, 8 July 2011 (UTC)

Ok. Sorry I jumped on that ... didn't know what it meant. - Tannertsf (talk) 16:38, 8 July 2011 (UTC)


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 288 not stated, as it is on a similar occasion, later on), came upon them, as if from a distance, asked what they were doing, and offered to help. He took up a pick and set to work; but before long the iron came out of the handle. So he called to the Giraffe, and asked for the loan of his leg to serve as a handle. The Giraffe lent his leg, and in a very short time it was broken, and the Rabbit ran away, declaring himself as he ran. He now took refuge in a white-ant heap, and the episode was repeated with two differences, viz. that, instead of getting past his enemy by a stratagem, he found an opening into another burrow, and so escaped; and that, when the pick came out of the handle, he this time proposed to fix it into the head of the Elephant. After this second failure the pursuers were (naturally) disheartened, and said: "We are tired" (twakatara, which is the Zulu sakatala), "and those who helped us, they have been killed. Let us stop." So they went home.

The Rabbit and the "Muna" both, in this story, exhibit an engaging artlessness, the former asking directly for what he wishes, the latter unsuspiciously granting it. Brer Rabbit and Brer Fox are cuter. (Is this owing to the stimulating air of the New World?) "'I don't keer w'at you do wid me. Brer Fox,' sezee, 'so you don't fling me in dat brier-patch. Roas' me, Brer Fox,' sezee, 'but don't fling me in dat brier-patch' sezee . . . . . Co'se Brer Fox wanter hurt Brer Rabbit bad as he kin, so he cotch 'im by de behime legs en slung 'im right in de middle er de brier-patch . . . ."

M. Junod, who belongs to the (Swiss) Mission Romande, and resided for some years at Lourenço Marques, has, in his large collection of Ronga tales, two fairly complete sequences of adventures, which he entitles "Le Roman du Lièvre." The Tar-Baby episode comes into the first of these as follows. The "Lièvre" having, by means of a false alarm of war, repeatedly robbed the ground-nut patches of a certain village, the inhabitants become suspicious, and lay a trap for him. The first step is to


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 Rh gather "de la glu noire." There are several kinds of trees which yield large quantities of gum, especially (in the Shire Highlands, at least) that called myombo (Brachystegia longifolia), which also supplies bark-cloth. They made a Tar-Baby, in this instance, "un mannequin de femme." (It is to be noticed that "Tar-Baby she ain't sayin' nuthin'" is in strict accordance with the original tradition, though Brer Rabbit's injunction to "take off dat hat en tell me howdy," seems to imply that the feminine pronoun is a mere façon de parler— as in the case of ships and engines. For Uncle Remus certainly knew what good manners demand in the case of gentlemen and ladies respectively.) The image having been set up in the gardens, the Ronga Brer Rabbit once more gives the alarm: "Nte! nte! nte!" (he is supposed to be sounding his horn—the nefarious acquisition whereof forms an earlier episode in the story)—"the enemy is coming!" The women all ran away; but, seeing the Tar-Baby still there, the Rabbit called out "Va-t-en, femme!" The sequel is exactly as in the version already given (except that Brer Rabbit did not sit down on the "mannequin"), so that "il resta suspendu, se balançant de-ci, de-là." The people then came up, extricated him from the Tar-Baby's embraces, and informed him that they were going to kill him. "Very well," said he, "but don't kill me on the ground, kill me on the chief's back!" They returned to the village and spread a mat on the ground, on which the chief obligingly lay down, and the Rabbit squatted on his back. A strong warrior then prepared to spear the Rabbit and, as might be expected, killed the chief. Brer Rabbit having leaped into the air at the critical moment, made his


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 290 escape without any difficulty, and the indignant villagers massacred the warrior. "This is the end," says Kwizu, the narrator of the story.

These villagers, like the Basumbwa, seem singularly deficient in perspicacity. Perhaps the Makua, through long contact with Portuguese and Arabs, are somewhat sharper, and Nakami or Mpfundla lost his too easily-acquired reputation when he ventured among them. It will not have escaped the reader's notice that Uncle Remus attributes to Brer Fox (and in one case to Brer B'ar) the part played by "the people" in these two African stories. In fact, except for Miss Meadows and the girls, so delightfully accounted for by the statement that "dey wuz in de tale," and one solitary appearance of "Mr. Man" (from whose superior power only Brer Rabbit can deliver Brer Fox), the actors in the great majority of his tales are animals only. In the aboriginal African stories, however, the distinction is not very clearly marked. I had myself frequently noticed this characteristic in Shire Highlands folklore, when I came upon the following passage in Chants et Contes des Baronga (p. 89):

"Le Lièvre, la Rainette, et toutes les bêtes qui passent et repassent dans ces curieux récits, représentent des êtres humains, cela va sans dire." . . . (Or would it not be more exact to say that the narrator, by a familiar myth-making process, invests them with his own personality?) "Leurs caractères physiques particuliers sont présents devant l'imagination du conteur pour autant qu'ils donnent du pittoresque au récit. Mais on les oublie tout aussi aisément dès qu'ils ne sont plus essentiels à la narration. . . . L'Hirondelle est un oiseau, mais sa femme est une véritable femme qui demeure dans une hutte, qui cuit dans une marmite des légumes. . . . . Dans l'histoire de la Femme paresseuse, l'Antilope déclare au Lièvre avoir vu les traces de ses pas dans un champ qui a été pillé par un voleur. Or, c'etaient les empreintes d'une femme! Le conteur è oublie la


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 Rh physique du lièvre et de l'homme à ce moment-là. A chaque ligne on rencontre de ces inadvertances. . . . ."

One of these inadvertences, to name no more, is found in the Shisumbwa story, where the Rabbit seizes the Tar-Baby with his hands. So, too, a Mang'anja tale in my MS. collection gives the Swallow a hut with all orthodox arrangements—the hearth in the middle of the floor, and the stage (nsanja) above it, on which meat and other things are dried—and a wife who cooks gourds in an earthen pot. In another, the Rabbit's wife goes down to the river with her water-pot like any native woman, and is caught by the Crocodile when stooping to fill it. Numberless touches of the same sort could be quoted from Uncle Remus, but he has a much more sophisticated consciousness of the difference between "folks en de beasteses" than the native African.

M. Junod remarks that this "personification" of animals is emphasised in the Ronga tales by the honorific prefix Nwa, which can be rendered, according to circumstances, by Mr., Mrs., or Miss, and is equivalent to the Yao Che. Thus we have Nwa-Mpfundla, Nwa-Ndlopfu (Mr. Elephant), and in Yao Che-Sungula, &c. No doubt Brer Rabbit, Miss Cow, &c., are echoes of the same usage. There is an opening here for a grammatical dissertation on the "m or living-person" class, and the transference into it of animal names properly belonging to another, when the animals are considered with reference to their personality. But we must not forget that we set out with the Tar-Baby.

M. Junod, in a note to the tale we have just quoted from him, refers to a story in M. Heli Chatelain's "Folk-tales of Angola," where the Rabbit and the Monkey (whom we have not hitherto found in his company) are lamentably caught by "de belles filles-mannequins," whom they are


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 292 tempted to embrace. I have not seen Chatelain's book, but the story is probably very much on the same lines as those already given. The Ambundu of Angola seem to possess a rich store of tales, and a language sufficiently like that of their more eastern kin to be learnt without difficulty. Herr Seidel (in a handy little collection entitled, "Geschichten und Lieder der Afrikaner," Berlin, 1896) gives two or three specimens, among them a turtle story which is the exact parallel to the adventure of Brer Tarrypin and Brer Bar. The German translator, who has evidently made his version from the English and not from the Kimbundu text, has, by a curious slip, entitled it "Die Turteltaube;" but it is quite evident from the story itself that the water and not the winged turtle is the one meant. A man from Lubi la Suku found a turtle in the bush, and it was proposed to kill it with axes, but the turtle sang:

Stones, fire, and knives are all suggested in turn with a


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 Rh like result, and at last some one says: "We will throw him into the deep water!" Then the turtle cried out lamentably: "Alas! I must die! What shall I do?" And they took him to the river and threw him in. He swam away merrily, singing in triumph:

"Ole man Tarrypin wuz at home, I tell you, honey!"

I was about to add that there is also a Yao version of the Tar-Baby. There probably is, but I am not acquainted with it. It is true that the little book in which the Domasi school-children learn to read contains, along with some (I believe) genuine native tales, one called "Ndano ja Juampache Malilolilo," whereof one word at least will be recognised by listeners devoted enough to have followed this paper attentively. But it is only—so, if my memory serves, I was informed by the compiler of the book—a version of Uncle Remus's Wonderful Tar-Baby, as indeed the words, "If you refuse to take off your hat," sufficiently indicate. But it reads naturally enough, and after all, we may suppose, has only been restored, a little touched up perhaps, to its original home.


text: Appletons' Cyclopædia of American Biography/Eckert, Thomas Thompson


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294 WEDNESDAY, MARCH 15th, 1899.

(Mr. E. S. Hartland) in the Chair.

The minutes of the last Meeting were read and confirmed.

The election of Mr. Hoey Dignem and Miss K. Schlesinger was announced.

The resignation of Mr. T. K. Hurlburt was also announced.

The President then read a paper by Mr. W. G. Aston, entitled "Japanese Myth," which was followed by a discussion, in which Mr. Crooke and the President took part.

Dr. Gaster then read a paper entitled "Two Thousand Years of the Charm against the Child-Stealing Witch."

Votes of thanks for these papers were passed.

JAPANESE MYTH.

In Japan, as elsewhere, the respective domains of myth, legend, and history merge into one another in such a way that it is often hard to say where one ends and another begins. The ancient annals give us continuous narratives in which all three are treated alike. It is generally agreed, however, that the mythical period comes to an end with the accession to the throne of Jimmu Tennō, the first Mikado, an event to which the date of B.C. 660 is usually assigned. Modern Japanese historians make history to begin from this point; but in reality legend predominates for many hundreds


text: Folk-Lore/Volume 10/The Tar-Baby Story

title: Folk-Lore/Volume 10/The Tar-Baby Story


text: Folk-Lore/Volume 10/Proceedings at Meeting, March 1899


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 MISCELLANEA.

On the 10th of February, 1854, Mr. Kinahan read before the Dublin Natural History Society a paper "On the Reproduction and Distribution of the Smooth Newt and a Notice of the Popular Superstitions relating to it." It was printed in The Zoologist at the time (vol. xii., p. 4355). I forward a transcript of the portion relating to folklore:—

"This brings me to the third part of my paper, namely, the superstitions connected with this animal. There are several of them curious and interesting, as having a connection with the religious belief of the former inhabitants of this country, and are now fast dying away. In almost every part of the country we find these animals looked on with disgust and horror, if not with dread. This arises from two superstitions; one of them, common to great part of Ireland, relating chiefly to the animal in its aquatic state, and which in the county of Dublin has earned for it the names of man-eater and man-keeper, though the dry ask of the county of Dublin, that is the animal in its terrestrial stage, is supposed to be equally guilty with the first mentioned, in the habit of going down the throats of those people who are so silly as either to go to sleep in the fields with their mouths open, or to drink from the streams in which the dark lewkers harbour. They are also said to be swallowed by the thirsty cattle; in consequence, the country people kill them whenever they meet with them on land, and poison the stream they are found in by putting lime into the cattle's drinking-pools. In either case the result is the same; the reptile taking up his quarters in the interior of his victim in some way, it would puzzle a physiologist to explain how it contrives to live on the nutriment taken by the luckless individual or animal, so that, deprived of its nourishment, the latter pines away; nay, so comfortable does the newt make herself, that


text: Appletons' Cyclopædia of American Biography/Eckfeldt, Jacob Reese


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 252 not content with living by herself, she contrives to bring up a little family. Often have I been told of the man who got rid of a mamma newt and six young ones by the following recipe, which I am assured is infallible: the patient must abstain from all fluids for four-and-twenty hours, and eat only salt meats; at the expiration of that time, being very thirsty, he must go and lie open-mouthed over a running stream, the noisier the better, when the newts, dying of thirst, and hearing the music of the water, cannot resist the temptation, but come forth to drink, and of course you take care they do not get back again. The dry ask, in addition to this bad character, is also supposed to be endowed with the power of the "evil eye," children and cows exposed to its gaze wasting away. The Rev. J. Graves writes to me that in Kilkenny it is looked on as "a devil's beast," and as such is burnt. But, to compensate in some measure for its evil qualities, the dry ask is said in Dublin to bear in it a charm. Anyone desirous of the power of curing scalds or burns has only to apply the tongue along the dry ask's belly to obtain the power of curing these ailments by a touch of that organ. In Queen's County it is also used to cure disease, but in a different way; being put into an iron pot under the patient's bed it is said to effect a certain cure, though of what disease I am not quite clear."

.

In a visit to Girgenti this winter I came to hear of a custom that seemed to me interesting as apparently a survival or metamorphosis of some rite connected with the ancient Demeter worship. I write to ask if you know whether the custom has been described by any student from personal observation, and, if so, if you can refer me to such description. The account I am sending was given me by Captain Adolf Ragusa, the proprietor of the Hotel des Temples, Girgenti, who observed it last year for the first time, but took no special notice of it, not imagining that any


text:
Author:William Jacob Holland

Works

 * Deinosuchus hatcheri, a new genus and species of crocodile from the Judith River beds of Montana (1909) *incomplete*
 * Deinosuchus hatcheri, a new genus and species of crocodile from the Judith River beds of Montana (1909) *incomplete*

title: Author:William Jacob Holland