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Kring v. State of Missouri/Dissent Matthews

MATTHEWS, J., dissenting.

The chief justice, Mr. Justice BRADLEY, Mr. Justice GRAY, and myself are unable to concur in the judgment and opinion of the court in this case, and the importance of the question determined constrains us to state the grounds of our dissent. The material facts are these:

The plaintiff in error, at March term, 1875, of the St. Louis     criminal court, was indicted for murder in the first degree. On his arraignment he pleaded 'not guilty.' At the November     term of the same year a trial was had, which resulted in a      verdict of guilty of murder in the first degree, and a      sentence of death. That judgment was reversed on appeal, and     twice subsequently there were mistrials. On November 12,     1879, the defendant, by consent of the circuit attorney and      leave of the court, withdrew his plea of not guilty and      entered a plea of guilty of murder in the second degree. He     was thereupon sentenced to imprisonment in the penitentiary      for a term of 25 years. The prisoner then filed a motion to     set aside this judgment and sentence, and to allow him to      withdraw the plea of guilty of murder in the second degree,      and to permit him 'to have his original plea of not guilty      entered to record, to the end that he may have a trial upon      the merits of his case before a jury.' In support of this      motion reasons were assigned, in substance, that he had      withdrawn his original plea of not guilty and entered the      plea of guilty of murder in the second degree, upon the faith      of an understanding previously had with the circuit attorney,      representing the prosecution, that if he would do so the      sentence should not exceed 10 years in the penitentiary,      which * understanding was violated by the sentence complained of. The court     overruled the motion, but upon appeal the judgment was      reversed, on the ground alleged by the prisoner that he had      been misled, and the cause was remanded for further      proceedings. On receipt of this mandate, the trial court, the     prisoner refusing to withdraw his plea of guilty of murder in      the second degree and to enter a plea of not guilty,      entertained the motion previously made by him, for refusing      to grant which the judgment had thus been reversed, and      granted it, setting aside the plea of guilty, and, the      prisoner standing mute, ordered a plea of not guilty to be      entered. On this plea a trial was had at October term, 1881,     when the prisoner was found guilty of murder in the first      degree and again sentenced to death. An appeal was prosecuted     from this judgment, which, however, was affirmed by the      supreme court of Missouri, and is brought here for      examination by the present writ of error, on the ground that      it has been rendered in violation of a right secured to the      plaintiff in error by the constitution of the United States.

The right which it is alleged has been violated is supposed to arise in this way. At the time of the commission of the offense, in 1875, it was well established as the law of Missouri, by the decisions of the supreme court of the state, that 'when a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree, and a new trial is ordered at his instance, he cannot legally be put upon his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree.' State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of murder in the second degree, accepted by the state, would have been at that time equally an acquittal of the charge of murder in the first degree, having the same force as to future trials as a conviction of murder in the second degree, although the judgment should be reversed on the application of the prisoner.

On November 30, 1875, the state of Missouri adopted a new constitution, which contained (section 23, art. 2) the provision that 'if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.'

In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows the rule laid down in the case of State v. Ross, ubi supra, and was 'equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial, as if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in consequence of their inability to agree on a verdict.'

The rule thus introduced by the constitution of 1875 was the one applied in the trial of the prisoner, instead of that previously in force; and the contention is that to apply it in a case such as the present, where the alleged offense was committed prior to the adoption of the new constitution, is to give it operation as an ex post facto law, in violation of the prohibition of the constitution of the United States.

In examining this proposition it must constantly be borne in mind that the plea of guilty of murder in the second degree, the legal effect of which, when admitted, is the precise subject of the question, was entered long after the new rule established by the constitution of Missouri took effect; that the prisoner himself moved to set it aside, and for leave to renew his plea of not guilty, on the ground that he had been misled into making his plea of guilty under circumstances that would make it operate as a fraud upon his rights, if it were permitted to stand; and that, because the court denied this motion, he made and prosecuted his appeal for a reversal of its judgment, in full view of the rule, then in force, of the application of which he now complains, which expressly declared what should be the effect of such a reversal.

The classification of ex post facto laws first made by Mr. Justice CHASE, in Calder v. Bull, 3 Dall. 386-390, seems to have been generally accepted. It is as follows:

'(1) Every law that makes an action done before the passing     of the law, and which was innocent when done, criminal, and      punishes such action; (2) every law that aggravates a crime      or makes it greater than it was when committed; (3) every law      that changes the punishment, and inflicts a greater punishment      than the law annexed to the crime when committed; (4) every      law that alters the legal rules of evidence, and receives      less or different testimony than the law required at the time      of the commission of the offense, in order to convict the      offender.'

This definition was the basis of the opinion of the court in the cases of Cummings v. State, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, and was expressly relied on in the opinion of the dissenting judges, which says: 'This exposition of the nature of ex post facto laws has never been benied, nor has any court or any commentator on the constitution added to the classes of laws here set forth, as coming within that clause of the organic law.' 4 Wall. 391.

Now, under which of these heads does the controverted rule of the Missouri constitution fall? It cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the fourth. But what rule of evidence, existing at the time of the commission of the offense, is altered to the disadvantage of the prisoner? The answer made is this: that, at that time, an accepted plea of guilty of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the first degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But while that rule was in force the prisoner had no such evidence of which he could avail himself. How, then, has he been deprived of any benefit from it? He had not, during the period while the rule was in force, entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the state. All that can be said is that if, while the rule was in force, he had entered such a plea with the consent of the state, its legal effect would have been as claimed, and by its change he has lost what advantage he would have had in such a contingency. But it does not follow that such a contingency would have happened. It was not within the power of the prisoner to bring it about, for it required the concurrence and consent of the state; and it cannot be assumed that, under such a rule and enough to say that, under a ruling of the court, a party might have enough to say that, under a ruling of the court, a party might have lost the benefit of certain evidence, if such evidence had existed. To predicate error in such a case, it must be shown that the party had evidence of which, in fact, he has been illegally deprived. Such a case would have been presented here, if the plea of guilty of murder in the second degree had been entered and accepted before the constitution of 1875 took effect, and while the old rule was in force. Then the law would have taken effect upon the transaction between the prisoner and the prosecution in the acceptance of his plea; the status of the prisoner would have been fixed and declared; he would have stood acquitted of record of the charge of murder in the first degree; and the new rule would have been an ex post facto law if it had made him liable to conviction and punishment for an offense of which by law he had been declared to be innocent.

But, in the circumstances of the present case, the evidence, of which it is said the prisoner has been deprived, came into being after the law had been changed. It was evidence created by the law itself, for it consists simply in a technical inference; and the law in force when it was created necessarily determines its quality and effect. That law did not operate upon the offense to change its character; nor upon its punishment to aggravate it; nor upon the evidence which, according to the law in force at the time of its commission, was competent to prove or disprove it. It operated upon a transaction between the prisoner and the prosecution, which might or might not have taken place; which could not take place without mutual consent; and when it did take place that consent must be supposed to have been given by both with reference to the law as it then existed, and not with reference to a law which had then been repealed.

It is the essential characteristic of an ex post facto law that it should operate retrospectively, so as to change the law in respect to an act or transaction already complete and past. Such is not the effect of the rule of the constitution of Missouri now in question. As has been shown, it does not, in any particular, affect the crime charged, either in its definition, punishment, or proof. It simply declares what shall be the legal effect, in the future, of acts and transactions thereafter taking place. It enacts that any future erroneous and unlawful conviction for a less offense, thereafter reversed on the application of the accused, shall be held for naught, to all intents and purposes, and shall not, after such reversal, operate as a technical acquittal of any higher grade of crime, for which there might have been a conviction under the same indictment. It imposes upon the prisoner no penalty or disability. It cannot affect the case of any individual, except upon his own request, for he must take the first step in its application. When he pleads guilty of murder in the second degree, he knows that its acceptance cannot operate as an acquittal of the higher offense. When he asks to have the conviction reversed, he understands that if his application is granted, the judgment must be set aside with the same effect as if it had never been rendered. It does not touch the substance or merits of his defense, and is in itself a sensible and just rule in criminal procedure.

And, 'so far as mere modes of precedure are concerned,' says     Judge COOLEY, (Const. Lim. 272,) 'a party has no more right      in a criminal than in a civil action to insist that his case      shall be disposed of under the law in force when the act to      be investigated is charged to have taken place. Remedies must     always be under the control of the legislature, and it would      create endless confusion in legal proceedings if every case      was to be conducted only in accordance with the rules of      practice, and heard only by the courts in existence when its      facts arose. The legislature may abolish courts and create     new ones, and it may prescribe altogether different modes of      procedure in its discretion, though it cannot lawfully, we      think, in so doing, dispense with any of those substantial      protections with which the existing law surrounds the person      accused of crime. Statutes giving the government additional     challenges, and others which authorized the amendment of      indictments, have been sustained and applied to past      transactions, as doubtless would be any similar statute      calculated merely to improve the remedy, and in its operation      working no injustice to the defendant and depriving him of no      substantial right.'

Accordingly it was held by this court, in Gut v. State, 9 Wall. 35, in the language of Mr. Justice FIELD, delivering its opinion, that 'a law changing the place of trial from one county to another county in the same district, or even to a different district from that in which the offense was committed or the indictment found, is not an ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment.' And in the case of Ex parte McCardle, 7 Wall. 506, it was the unanimous decision of the court that it was competent for congress, in a case affecting personal liberty, to deprive the complaining party of the benefit of an appeal from the judgment of an inferior court, after his appeal had taken effect and while it was pending. It would have been equally competent for the constitution of Missouri to have declared that no appeal or writ of error should thereafter be allowed to reverse the judgment of the court of original jurisdiction in any pending criminal cause, which certainly would be giving a different, because irreversible, effect to that judgment from what such judgments would have had under the law in force when the offense was committed. If it be true, in the logic of the law, as it is in all its other applications, that the greater includes the less, then it was competent for that constitution to provide that, as to all judgments in criminal cases thereafter rendered, which should be reversed for error, on the appeal of the defendant, the effect of the reversal should be such as not to be a bar to a subsequent conviction for any crime described in the indictment; for that would have been to say, not that there shall be no appeal at all, but that if an appeal is taken its effect shall only be such as is prescribed in the law allowing it.

In Com. v. Holley, 3 Gray, 458, SHAW, C. J., said:

'The object of the declaration of rights was to secure     substantial privileges and benefits to parties criminally      charged; not to require particular forms, except where they      are necessary to the purposes of justice and fair dealing      towards persons accused, so as to insure a full and fair      trial.'

And in Com. v. Hall, 97 Mass. 570, the court, speaking of a statutory provision authorizing the amendment of indictments, so as to allege a former conviction, the effect of which was to increase the penalty, said:

'We entertain no doubt of the constitutionality of this     section, which promotes the ends of justice by taking away a      purely technical objection, while it leaves the defendant fully and fairly informed of the      nature of the charge against him, and affords him ample      opportunity for interposing every meritorious defense. Technical and formal objections of this nature are not     constitutional rights.'

These observations, it is not necessary to point out, are entirely applicable to the present argument.

Still stronger, and more to the point, is what was said by SHAW, C. J., in Jacquins v. Com. 9 Cush. 279, where it was held that a statute authorizing the supreme judicial court, on a writ of error, on account of error in the sentence, to render such judgment therein as should have been rendered, applied to past judgments, and was not, on that account, an ex post facto law. That eminent judge said:

'It was competent for the legislature to take away writs of     error altogether in cases where the irregularities are formal      and technical only, and to provide that no judgment should be      reversed for such cause. It is more favorable to the party to     provide that he may come into court upon the terms allowed by      this statute than to exclude him altogether. This act     operates like the act of limitations. Suppose an act was     passed that no writ of error should be taken out after the      lapse of a certain period. It is contended that such an act     would be unconstitutional, on the ground that the right of      the convict to have his sentence reversed upon certain      conditions had once vested. But this argument overlooks     entirely the well-settled distinction between rights and      remedies.'

Precisely the same distinction between laws ex post facto and those which merely affect the remedy, and are, therefore, applicable to the case of an offense previously committed, is well illustrated by the case of Ratzky v. People, 29 N. Y. 124. There the prisoner had been convicted of murder in the first degree; the offense was committed when the act of 1860 was is force, which prescribed the mode of punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862, subsequently to the commission of the offense, and which prescribed a different mode of punishment. On this account the judgment was held to be erroneous and was reversed, on the ground that the act of 1862, applied to offenses previously committed, was ex post facto. But at the time of the commission of the offense, in 1861, it was the well-settled law of New York, as decided in Shepherd v. People, 25 N. Y. 406, that when a wrong judgment had been pronounced, although the trial and conviction were regular, the prisoner could not, on the reversal of judgment, be subject to another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been tried and convicted, but before judgment and sentence were pronounced, an act of the legislature took effect, which provided that the appellate court should have power, upon any writ of error, when it should appear that the conviction had been legal and regular, to remit the record to the court in which such conviction had been had, to pass such sentence thereon as the appellate court should direct. But for the authority conferred by this act, the court of appeals stated that it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment, or remit the record to the oyer and terminer to give such judgment; but, on the contrary, would have been obliged to have discharged him, the law not authorizing another trial. Nevertheless, the court of appeals gave effect to the act of 1863, reversed the judgment, and sent the record down with directions to sentence the prisoner to death, in accordance with the provisions of the act of 1860, holding that the act of 1863 was not an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of law, in force at the time the offense was committed, viz., that if he should be erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged and forever after protected against further prosecution for the same offense, as well as against any second judgment upon the same verdict. This decision deserves particular consideration, for it involves the very question under discussion. At the time of the commission of his offense, and at the time of his trial and conviction, a rule of law in New York had been well established that upon a reversal of judgment in a capital case, for error in the sentence, the prisoner was entitled to be discharged, and his former conviction, notwithstanding the reversal, was a conclusive defense upon any subsequent trial for the same offense. After trial and conviction a statute was passed which abrogated that rule and declared that a subsequent reversal of judgment for error merely in the sentence should not have that effect, but that, even without a new trial, a new judgment might be entered upon the verdict. This gave to the verdict and to the subsequent proceeding an effect entirely different from what they would have had under the law as it stood at the time of the commission of the offense, and deprived the prisoner of the advantage of the rule then in force. After that statute took effect he prosecuted a writ of error and reversed the judgment for error in the sentence, and it was held that the effect of that reversal was determined by the law in force when it was rendered, and not by thelaw in U 'It would follow from these considerations, and the authority of the case of People v. Shepherd, 25 N. Y. 406, that a wrong judgment having been pronounced, although the trial and conviction were regular, this prisoner could not be subjected to another trial and would be entitled to his discharge. That would unquestionably be so but for the act of April 24, 1863. * *  * In the present case that act became operative before the judgment and sentence were pronounced and given, and before the writ of error was prosecuted to this court. It was, therefore, in force when the writ of error in this case was prosecuted, and its provisions are applicable to the duty imposed upon this tribunal by virtue of that proceeding. * *  * But for the authority conferred upon this court by that statute it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and terminer to give such judgment.'

'The remaining question is, whether the judgment should be     reversed and the prisoner discharged, according to the former      rule, or the record be remitted to the oyer and terminer to      pass a legal sentence upon the conviction. This latter course     is now authorized by statute. Laws 1863, c. 226, p. 406. The     conviction was legal and the sentence only was erroneous. The     only question is, whether the act, having been passed after      the conviction, though before judgment was given in the      supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of     judicial proceedings are under control of the legislature.'

And the court accordingly, instead of ordering the prisoner to be discharged, according to the rule in force at the time the offense was committed, and even at the time of his trial and conviction, directed the record to be remitted to the court of oyer and terminer with instructions to sentence him to suffer death for the crime of which he had been convicted.

The counterpart and complement of the decision in Ratzky's Case are found in Hartung v. People. There the prisoner had been convicted of murder and sentenced to death; but at the time the judgment was rendered the law in force at the time of the commission of the offense providing for its punishment had been repealed, and the repealing act substituted a different punishment. It was on this account adjudged to be an ex post facto law, and void, and the judgment was reversed. 22 N. Y. 95. Subsequently the repealing act was itself repealed, and the former act in force when the offense was committed was restored. Then the prisoner was again tried, having pleaded a former conviction, but was found guilty, and adjudged to suffer death in accordance with the law existing at the time the offense was committed. This judgment was thereupon reversed, and the prisoner ordered to be discharged, on the ground that the act restoring the law as it stood when the offense was committed was an ex post facto law, because at the time it was passed the prisoner had been adjudged to be legally free from punishment of any kind on account of her offense. 26 N. Y. 167. The very point of the decision was that while it was competent for the legislature to repeal the repealing act so that it could not thereafter be availed of, it could not destroy the effect of a judgment actually pronounced while that act was in force. It is manifest that if in that case the prisoner had not been tried at all until after the law had been thus twice changed, she could not have claimed to have had the vested interest in the first repealing act which was allowed to her in the judgment actually rendered when it was in force. It was because the subsequent law, if applied, would have changed the legal effect of that judgment, that it was adjudged to be an ex post facto law.

It was precisely upon this principle that the supreme court of North Carolina proceeded in the case of State v. Keith, 63 N. C. 140. There the prisoner, in custody on a charge of murder, moved for a discharge, on the ground that his offense was within the provisions of the amnesty act of 1866-67. This was admitted to be the case, but the motion was opposed on the ground that the amnesty act had been repealed. It was held that the effect of the pardon was, so far as the state was concerned, to destroy and entirely efface the previous offense, as if it had never been committed; and that to give to the repeal of the amnesty act the effect, as claimed, of reviving the offense, would make it an ex post facto law, making criminal that which, when it took effect, was not so, and taking from the prisoner his vested right to immunity. But suppose in that case the provisions of the amnesty act had been conditional and not absolute, so that no one could plead its pardon unless he had taken certain formal preliminary steps to obtain the benefit of its terms, and that before the prisoner had done so the act had been repealed, could it be claimed that in that event he had obtained a vested right to immunity, and that its repeal operated as an ex post facto law? Clearly not. And, in reference to this case, it is also to be observed that the fact, the legal character of which was changed by the subsequent law, was the fact of pardon, and not a fact which existed at the time of the commission of the offense. The repealing act was ex post facto, because it had the effect to change the legal character of the facts as they existed at the time of its passage.

In State v. Arlin, 39 N. H. 179, a prisoner was indicted for a robbery, which, at the time of its commission, was punishable by imprisonment for life, but by the same law he was entitled to have counsel assigned him by the government, process to compel the attendance of witnesses, and other similar privileges. A subsequent law mitigated the severity of the punishment and repealed the act giving these privileges. It was held that the act was not ex post facto, because it changed the punishment to the advantage of the prisoner, and that he was not entitled to the incidental benefits secured by the law in force when the offense was committed. The court remarked that by committing the offense the prisoner had not acquired a vested right to enjoy the privileges to which he would have been entitled if tried under the law subjecting him to imprisonment for life.

The rule of law in Missouri, the benefit of which is claimed for the prisoner in this proceeding, notwithstanding its repeal by the constitution of the state before it could have been applied in his case, was established, not by statute, but by a series of judicial decisions of the supreme court of the state. Those decisions might at any time have been reversed by the same tribunal, and a new rule introduced, such as that actually declared by the constitution. In that event, could it be said, with any plausibility, that the latter decisions, reversing the law as previously understood, could not be applied to all subsequent proceedings in cases where, upon a plea of guilty of murder in the second degree thereafter entered and accepted, an erroneous judgment thereon had been reversed, notwithstanding, when the offense was committed, the prior decisions had been in force? Would the new rule, as introduced and applied by the later judicial decisions, be in violation of the prohibition of the constitution of the United States against ex post facto laws? But the constitution of Missouri has done no more than this. The nature and operation of the rule are not affected by any peculiarity in the authority which establishes it. If it is not objectionable as an ex post facto law, when introduced by judicial decision, it is because it is not so in its nature; and, if not, it does not become so when introduced by a legislative declaration.

There are doubtless many matters of mere procedure which are of vital consequence; but in respect to them the power of congress, as to crimes against the United States, is restrained by positive and specific limitations, carefully inserted in the organic law, prohibiting unreasonable searches and seizures, and general warrants, providing that no one shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the military service; that no person shall, for the same offense, be twice put in jeopardy of life or limb, nor be compelled to testify against himself; that every accused person shall be secured in the right to a public trial by an impartial jury in a previously ascertained district, in which the alleged offense is charged to have been committed; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. But these are limitations upon the legislative power of the United States, whether prospective or retrospective, and not upon that of the states; and although the constitutions of all the states, probably, have equivalent guaranties of individual rights, the violation of none of them by a state tribunal, under state legislation, could present a case for the exercise of supervisory jurisdiction by this court. The prohibition against bills of attainder is the only one of this class which applies to both the government of the United States and those of the states; and while a bill of attainder may be an ex post facto law, it is not necessarily so, as it may be merely a matter of procedure,-a trial by a legislative instead of a judicial body.

But, in addition to these matters of procedure, which are specially protected against legislative change, either for the past or the future, there may be others, in which changes with a retrospective effect are forbidden by the prohibition against ex post facto laws. Such, we have already seen, would be laws which authorize conviction upon less evidence than was required at the time of the commission of the offense, or which altered, to the disadvantage of the accused, the nature and quantity of proof at that time required to substantiate a legal defense; or which, in other words, gave to the circumstances which constituted and attended the act, a legal signification more injurious to the accused than was attached to them by the law existing at the time of the transaction.

It is doubtless quite true that it is difficult to draw the line in particular cases beyond which legislative power over remedies and procedure cannot pass without touching upon the substantial rights of the parties affected, as it is impossible to fix that boundary by any general words. The same difficulty is encountered, as the same principle applies, in determining, in civil cases, how far the legislature may modify the remedy without impairing or enlarging the obligation of contracts. Every case must be decided upon its own circumstances, as the question continually arises and requires an answer. But it is a familiar principle that, before rights derived under public laws have become vested in particular individuals, the state, for its own convenience and the public good, may amend or repeal the law without just cause of complaint. 'The power that authorizes or proposes to give,' said Mr. Justice WOODBURY in Merrill v. Sherburne, 1 N. H. 213, 'may always revoke before an interest is perfected in the donee.' Accordingly, the heir apparent loses no legal right, if, before descent cast, the law of descents is changed so as to shift the inheritance to another, however his expectations may be disappointed. And while it would be a violation of the constitutional maxim which forbids retrospective legislation inconsistent with vested rights, to deprive, by a repeal of statutes of limitation, a defendant of a defense which had become perfect while they were in force; yet if, before the bar had become complete, he should be deprived of an expected defense by an extension of time in which suit might be brought, he would have no just cause to object that he was compelled to meet the case of his adversary upon its merits.

In respect to criminal offenses it is undoubtedly a maxim of natural justice, embodied in constitutional provisions, that the quality and consequences of an act shall be determined by the law in force when it is committed, and of which, therefore, the accused may be presumed to have knowledge, so that the definition of the offense, the character and degree of its punishment, and the amount and kind of evidence necessary to prove it, cannot be changed to the disadvantage of the party charged ex post facto. And this equally applies to, because it includes, the matters which, existing at the time and constituting part of the transaction, affect its character, and thus form grounds of mitigation or defense; for the accused is entitled to the benefit of all the circumstances that attended his conduct, according to their legal significance, as determined at the time. All these are incidents that belong to the substance of the thing charged as a crime, and therefore come within the saving which preserves the legal character of the principal fact. But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res gestae, are continually subject to the legislative will, unless, in the mean time, by an actual application to the particular case, the legal condition of the accused has been actually changed. His right to maintain that status, when it has become once vested, is beyond the reach of subsequent law. The present, as we have seen, is not such a case. The substance of the prisoner's defense, upon the merits, has not been touched; no vested right under the law had wrought a result upon his legal condition before its repeal. He is, therefore, in no position to invoke the constitutional prohibition which is, by the judgment of this court, now interposed between him and the crime of which he has been convicted.

In our opinion the judgment of the supreme court of Missouri should be affirmed.


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Connecticut v. Menillo/Opinion of the Court

PER CURIAM.

In 1971 a jury convicted Patrick Menillo of attempting to procure an abortion in violation of Connecticut's criminal abortion statute. Menillo is not a physician and has never had any medical training. The Connecticut Supreme Court nevertheless overturned Menillo's conviction, holding that under the decisions in Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), the Connecticut statute was "null and void." As we think the Connecticut court misinterpreted Roe and Doe, we grant the State's petition for certiorari and vacate the judgment.

The statute under which Menillo was convicted makes criminal an attempted abortion by "any person." The Connecticut Supreme Court felt compelled to hold this statute null and void, and thus incapable of constitutional application even to someone not medically qualified to perform an abortion, because it read Roe to have done the same thing to the similar Texas statutes. But Roe did not go so far.

In Roe we held that Tex. Penal Code, Art. 1196, which permitted termination of pregnancy at any stage only to save the life of the expectant mother, unconstitutionally restricted a woman's right to an abortion. We went on to state that as a result of the unconstitutionality of Art. 1196 the Texas abortion statutes had to fall "as a unit," 410 U.S., at 166, and it is that statement which the Connecticut Supreme Court and courts in some other States have read to require the invalidation of their own statutes even as applied to abortions performed by nonphysicians. In context, however, our statement had no such effect. Jane Roe had sought to have an abortion "'performed by a competent, licensed physician, under safe, clinical conditions,'" id., at 120, and our opinion recognized only her right to an abortion under those circumstances. That the Texas statutes fell as a unit meant only that they could not be enforced, with or without Art. 1196, in contravention of a woman's right to a clinical abortion by medically competent personnel. We did not hold the Texas statutes unenforceable against a nonphysician abortionist, for the case did not present the issue.

Moreover, the rationale of our decision supports continued enforceability of criminal abortion statutes against nonphysicians. Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion's being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. See 410 U.S., at 149-150, 163; cf. statement of Douglas, J., in Cheaney v. Indiana, 410 U.S. 991 (1973), denying certiorari in 259 Ind. 138, 285 N.E.2d 265 (1972). Even during the first trimester of pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference. And after the first trimester the ever-increasing state interest in maternal health provides additional justification for such prosecutions.

As far as this Court and the Federal Constitution are concerned, Connecticut's statute remains fully effective against performance of abortions by nonphysicians. We express no view, of course, as to whether the same is now true under Connecticut law. Accordingly, the petition for certiorari is granted, the judgment of the Supreme Court of Connecticut is vacated, and the case is remanded to that court for its further consideration in light of this opinion.

So ordered.

Mr. Justice White concurs in the result.

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


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 continued the fight with the same degree of courage, till the Galla, who did not dare to approach him near, killed him by a number of javelins thrown at a distance.

news of the defeat and death of Buco reached Sela Christos, then in march to join him; nor did the misfortune that had already happened, nor the bad prospect of his own situation, alter his resolution of attacking the enemy: But he first wrote to the king his brother, telling him his situation, and the probable consequences of doing his duty as he had determined, laying all the blame upon the malice of his enemies, who, to gratify their own private malice, had left him without assistance, and occasioned misfortunes so detrimental to the common-weal.

passed this night upon a rising ground, and in the morning early descended into the plain, with a view of attacking the Galla, when, to his great surprise, that barbarous people, content with the slaughter of Kafmati Buco and his army, and not willing to risk a large quantity of plunder with which their whole army was loaded, had repaired the Nile, and returned home.

was son-in-law to Socinios, and then governor of Tigré, but at variance with his father-in-law upon some quarrel with his wife. Determined on this account to rebel, he associated with some noblemen of the first rank and power in Tigré, particularly Guebra Mariam and John Akayo, declaring to them, that he would no longer suffer the Roman religion, but defend the ancient church of Alexandria to the utmost of his power. And, to convince all the Abyssinians of his sincerity, he tore off the figures of


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 to produce in abundance the tropical productions of sugar, cotton, coffee, silk, tobacco, &c.

Moreton Bay, shortly after its examination by the late Surveyor-General, was made a penal settlement for convicts under colonial sentences, and free settlers were not permitted to resort thither; but a year or two ago, the convicts were withdrawn, and this fine district was thrown open for location. Brisbane Town, a few miles up the river, contains some very good houses and stores of stone or brick, and it possesses the advantage of having in its vicinity excellent building stone, lime, coal, iron, cedar, pine, and other superior timber of useful kinds. Two other Government townships have been formed in eligible situations, one of them being near the mouth of the Brisbane river, and the other above Brisbane Town, at Limestone. This last township will be the terminus for the wool-drays from the upper parts of the district, and the numerous sheep-stations at Peel's plains. Darling downs, Byron's plains, &c. on the western side of the main dividing range. The settlers on the other side of the range, at these different localities, have been for some time in direct communication with Moreton Bay; the descent into the low country being very easy and gradual, through a passage called the Gap.

Wool has been hitherto forwarded from the Moreton Bay district to Sydney in steamers and other coasting vessels, to be shipped from thence to


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 England, but I see by the latest Sydney papers that the settlers in the vicinity of Moreton Bay are now going to send their wool direct to England from that harbour. Notwithstanding the near approach of this district to the tropic, Moreton Bay being in about 27° south latitude, the climate is quite as salubrious as any other part of New South Wales, and the traveller in the "bush" there can sleep uncovered on the bare ground, ford rivers, ride on in wet clothes, and expose himself to every variation of temperature, with the same impunity as in the more southern parts of New South Wales. The great exposure, to which settlers and travellers in the Australian forests subject themselves, would, in any other clime, infallibly entail upon them fevers, rheumatism, affections of the lungs, &c.; yet their extraordinary exemption from these ill effects has become proverbial, and is the best argument that can be adduced in favour of the salubrity of those parts of New South Wales hitherto colonized. During my surveys at the MacLeay and Nambucca rivers, I found it often necessary to carry lines through extensive reedy swamps, in which I myself and my men were frequently immersed for hours together in stagnant water, which sometimes reached as high as our shoulders; yet although several of the men attached to my surveying party were evidently not of strong constitutions, none of them ever suffered any bad effects from these long continued soakings; they were generally rather pleased on those days


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 when I traversed swamps, as I had made it a rule to give them an extra ration of rum or wine whenever they got wet.

What a contrast between the climate of New Holland, and that of the United States, to which our fellow-countrymen are so fond of resorting! Ague, marsh fever, and dyspeptic complaints, soon attack the unlucky emigrant who seeks a home in the dreary back settlements of the latter country, amidst fetid morasses, and dank unwholesome forests, where he is oppressed in summer by a close, moist, almost tropical heat, and in winter experiences the violent gradation to a temperature colder than he has ever experienced in his native land. In the southern states, especially Louisiana, yellow fevers, tumefied livers, et hoc genus omne, are prevalent; and although Texas is said to possess a healthy climate, yet the adjoining countries have been proved to be so little suited to English constitutions, that I should be rather diffident of trusting to the climate of Texas, unless there existed a very marked difference in the physical conformation of that country compared with Mexico and Louisiana.

Experience is our only guide to enable us to form an opinion of the salubrity of the climate of any country: Hong-Kong was always supposed to be a healthy island, and yet we now learn, after a frightful mortality among our troops and seamen in that settlement, that in order to guard against disease there, it is necessary to take greater care of oneself,


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 and submit to more annoying precautions than in India itself; it being necessary, for instance, to wear thick cloth clothes in the hottest weather, &c.

There are many inexplicable causes which produce wonderful diversity of climate. Thus, if I were called upon to judge from analogy, I should have no hesitation in saying that Australia was a most unhealthy country for Europeans; for the estuaries of its rivers, its creeks, salt-water inlets and mud flats, abound in mangroves, which have been considered by the best authorities the chief cause of the unequalled unhealthiness of the rivers on the coast of Western Africa. Again, there are in Australia an infinite number of tea-tree morasses, and reedy swamps, covered with stagnant water and rank vegetation; and the changes in the temperature, between day and night, are probably greater in Australia than in any other country, and are also very sudden. Nevertheless, the experience of upwards of half a century has now ascertained that no country in the world is more exempt from all that class of disorders which originate in impure air, and deleterious miasma, than Australia. Indeed, when I informed some persons in Sydney a few years ago, that ague was prevalent at the lower part of the MacLeay river, I was listened to with great incredulity, it seemed to them so totally incompatible with the climate of the colony; yet the reader will not wonder that cases of ague should occur at the MacLeay, for beside the mangrove


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 man had been condemned to die for an offence, some time before, by Ras Sela Christos; but having fled to the king, who heard his cause, the sentence was reversed. Some time after this he fell into the hands of the Ras, who put him to death upon his former sentence, without regarding the late pardon of the king. This violent act became the foundation upon which his enemies built many accusations, mostly void of truth.

king upon this took from him the government of Gojam, and gave it to a young nobleman whose name was Serca Christos, supposed to be a friend and dependent upon the prince Facilidas. Serca Christos was no sooner arrived in his government than he resolved to rebel, and privately solicited the young prince Facilidas to take up arms and make a common cause against the king his father, in favour of the Alexandrian church. At the time that the young man departed to his government, Socinios had earnestly recommended to him, and he had most solemnly promised, to protect the Catholic religion in his province, and seemingly for this purpose he had taken with him a Jesuit named Francisco de Carvalho.

affair which the king particularly charged him with was, the care of a caravan which once a-year came: from Narea. This, besides many other valuable articles for the merchant, brought 1000 wakeas of gold as tribute to the king, equal to about 10,000 dollars, or crowns of our money: its whole way was through barbarous and lawless nations of Galla till they arrived at the Nile; then through Gafats and Gongas, immediately after having passed it,


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 mud-flats at its mouth, there are, on its banks, at least 60,000 acres of stagnant swamps covered with high reeds and water; and the decomposition constantly going on in the dense mass of vegetation on the alluvial lands, must also evolve a great quantity of noxious gases.

Notwithstanding these obvious causes of impure exhalations, and the greater heat of the climate, the ague at the MacLeay river is much milder than in the fenny counties of England; the cold fit occurs every other day, but is seldom so severe as to prevent a man from attending to his daily avocations. Change of air, and sulphate of quinine, remove the ague directly, but it is liable to return by fresh exposure to the causes which produced it. Although I have resided upwards of four years at the MacLeay river, I have never known there a single instance in which ague has been attended, even in bad constitutions, with serious symptoms of an inflammatory or typhoidal character.

Should it happen, that, at any future period, labour became sufficiently cheap and abundant, to render it profitable to clear and cultivate the rich brush land on the banks of the Brisbane and Bremer rivers at Moreton Bay, for the production of cotton, sugar, coffee, indigo, rice, &c. that district will become the most flourishing part of the colony.

Dr. Lang, the present member for Port Philip in the Legislative Council, and whose long residence in New South Wales, and intimate acquaintance with


text:
Author:John Dunmore Lang

Works

 * An Historical and Statistical Account of New South Wales, both as a Penal Settlement and as a British Colony
 * View of the origin and migrations of the Polynesian nation (1834)
 * Transportation and Colonization (1837)
 * New Zealand in 1839: Position and Prospects of its Inhabitants
 * Religion and Education in America (1840)
 * Cooksland in north-eastern Australia (1847)
 * Phillipsland (1847)
 * The Australian Emigrant's Manual
 * Freedom and Independence for Australia (1852)
 * Queensland, Australia; a highly eligible field for emigration and the future cotton-field of Great Britian; with a disquisition on the origin, manners and customs of the Aborigines
 * The Coming Event! or Freedom and Independence for the Seven United Provinces of Australia (1876)
 * Aurora Australis (1826)
 * a series of poems

title: Author:John Dunmore Lang


text:
Author:William Hilton Hovell

Works

 * Journey of Discovery to Port Philip, New South Wales with Hamilton Hume, in (1824 and 1825)

title: Author:William Hilton Hovell


text:
Author:Alexander Hamilton Hume

Works

 * Journey of Discovery to Port Philip, New South Wales with William Hilton Hovell, in (1824 and 1825)
 * Life of Edward John Eyre, late Governor of Jamaica (1867)

title: Author:Alexander Hamilton Hume


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 troops of soldiers, he was afraid he had advanced too far; and, apprehensive left he should be inclosed in the midst of a multitude so posted, he began to think how he could best make his retreat before he was surrounded by so numerous enemies. But they no sooner saw his intention by the movement of his army, than, leaving their leader as a spectator above, they fell on all sides upon Sela Christos's troops, who, having no longer any safety but in their arms, began to attack the hill that was next them, which they stormed as they would do a cattle. Finding the small resistance that each of these posts made, the governor divided his small army into so many separate bodies, leaving his cavalry in the plain below, who, without fighting, were only employed in slaughtering those his troops had dislodged from their separate posts.

day after, the impostor assembling his scattered troops, retreated towards the sea into the territory of Hamazen, between the country of the Baharnagash and the mountains of the Habab.

, finding that, while he pursued his victory in these distant parts, the spirit of rebellion increased nearer home, resolved to inform the king his brother of the unpromising state of his affairs in Tigré, and the great necessity there was of his presence there. Nor did Socinios lose a moment after receiving this intelligence from Sela Christos, although it had found him, in one respect, very ill prepared for such an undertaking; for he had sent all his horse from Coga upon an expedition against the Shangalla and Gongas, nations on the north-weft border of this kingdom; so that, when he marched from Wainadega, his


text:
Author:Antonio Genesio Maria Panizzi

Works

 * Published an edition of Orlando Innamorato, Matteo Maria Boiardo's
 * Published an edition of Orlando Furioso, Ludovico Ariosto.

Works about Panizzi

 * 1899, Sir Anthony Panizzi, K.C.B. in Essays in librarianship and bibliography
 * 1880, The Life of Sir Anthony Panizzi, K.C.B., Louis Fagan
 * 1880, The Life of Sir Anthony Panizzi, K.C.B., Louis Fagan

title: Author:Antonio Genesio Maria Panizzi


text:
Author:Peter Miller Cunningham

Works

 * Two Years in New South Wales, in a Series of Letters

title: Author:Peter Miller Cunningham


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We infer the spirit of the nation in great measure from the language, which is a sort of monument to which each forcible individual in a course of many hundred years has contributed a stone. (Ralph Waldo Emerson, Essays, XX., "Nominalist and Realist.")

ages long lost in the abyss of time, when Aryan colonists had not yet established their first settlements on the banks of the river Saraswati in the Punjab, and the primitive Egyptian settlers in the valley of the Nile did not fancy, even in their most hopeful day-dreams, that their descendants would become the great people whose civilization was to be the cradle of that of Europe, there existed on the Western Continent a nation — the Maya — that had attained to a high degree of culture in arts and sciences.

Valmiki, in his beautiful epic the "Ramayana," which is said to have served as model to Homer's "Iliad," tells us that the Mayas were mighty navigators, whose ships travelled from the western to the eastern ocean, from the southern to the northern seas, in ages so remote that "the sun had not yet risen above the horizon;" that, being likewise great warriors, they conquered the southern parts of the Hindostanee

Comment (Wikisource)
B. French translation by Hippolyte Fauché


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 Rh 1. Gods grew out of several different ideas of superhuman beings.

2. These beings had independent origins.

3. The attributes of the gods differ according to their origin.

4. The historical gods are usually mongrel gods, the outcome of the combination of characteristics belonging to superhuman beings of different origins.

The need of accounting for observed phenomena gives rise to one class of sources of the belief in unseen, superhuman beings; the affective and moral needs give rise to another class.

I. This class contains several independent groups of external and internal phenomena. They are by far the most prolific sources of ideas of superhuman beings.

(a) Apparitions of animals and persons yet living, seen in sleep and in the hallucinations of fever or insanity, lead to the belief in "doubles" and "ghosts." When these apparitions come after the death of the person they represent, they produce the belief in "souls" or "spirits."

(b) States of seeming death followed by apparent return to life,—sleep, trances, and other states of temporary loss of consciousness,—suggest a belief similar to the preceding.

(c) The spontaneous though fleeting personification of striking natural phenomena such as thunder, lightning, fire, flood, and tempest, or the sudden appearance of animal or vegetable life, may well lead to the belief in personal agents behind visible nature.

(d) The problem of creation no doubt forces upon the primitive mind very early the necessity of a Maker. It may be that a crude conception of a Creator is attained even earlier than that of a soul or double.

(e) The facts of conscience: the feeling of duty, the categorical imperative; transformations of personality, conversion, etc.


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 150 (f) Various experiences included under the terms clairvoyance, divination, monition, etc.

(g) Striking motor and sensory abnormalities, such as are met with in hysteria.

The desire to explain the phenomena of the last three groups implies a considerable degree of mental development; therefore, before these causes could become operative, man must have been already in possession of a variety of ideas of superhuman beings and of gods. But, if these phenomena could hardly have become sources of original god-ideas, they have undoubtedly led to important modifications of them by the ascription to the gods of the moral qualities and of the powers implied in these experiences. With the appearance of the moral conscience, for instance, gods became promoters of morality.

It is to be noted that the metaphysical arguments for the existence of God,—for instance, the cosmological and the ontological proofs and the argument from design,—stand in a different relation from the facts here classified to the belief in superhuman beings. The metaphysical proofs are primarily arguments by which man sought to establish the objective validity of god-ideas already in existence. These proofs have also served to give greater precision to the god-ideas, and, above all, to modify their content. How radically the metaphysical and the naive empirical methods differ becomes evident in a comparison of the cosmological argument with the manner in which non-civilized man comes to believe in a Maker.

II. The affective and the moral needs. These needs become potent relatively late in human history; so that, when they appear as factors in the making of gods, beliefs in superhuman beings have already come into existence through the agency of phenomena of the first class. The experiences of this second class result, therefore, in a transformation of existing superhuman beings by the ascription to them of affective and moral qualities.


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 Rh In an essay on a group of Christian mystics, I have indicated four kinds of affective needs, only two of which need be mentioned here:—

(a) The needs of the heart. Affection and love seek perfect objects that they may be perfectly gratified. Under stress of this need a Nature-god or the impassable Absolute may be transformed into the Great Friendly Presence, the benevolent Father, even the Passionate Lover.

(b) The needs of conscience, (not, as in Class I., the interpretation of the facts of conscience). We crave strength in order to fulfil its imperative commands. These cravings are father to the belief in a Being who is able and willing to assist in the conflicts of the "spiritual" against the "natural" man. Here might be placed also the conviction that justice must be fulfilled, either in this life or in another. This conviction is usually connected with the belief in a Dispenser of punishment and reward, a Fulfiller of the law of justice.

The modern belief in the existence of God rests nearly entirely upon the experiences of this second class. Dreams, hallucinations, trances, personification of striking phenomena, the idea of a Maker,—these empirical data, together with the metaphysical arguments, have lost all or almost all the value they had once as prompters of the belief in God.

Subclasses Ia and Ib.—I proceed to a few remarks concerning the first four groups of the first class, and I begin with groups a and b.

Most anthropologists seem to be of the opinion that the idea of the "double" or "ghost" is the exclusive source of the original belief in souls, in invisible spirits, and consequently in gods. Very recently, however, a distinguished sociologist, E. Durkheim, has vigorously attacked


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 152 this view. He maintains that the conception of soul did not have its origin in dreams, visions, and trances, although the conception may be of service in an attempt to account for some of these phenomena. As the point raised by Durkheim is of considerable importance, I give his chief objections under four heads, and offer answers which seem to me sufficient to refute his arguments.

1. The belief in soul is not the simplest way to account for dreams, visions, etc. Why should not man instead have imagined that he could see at a distance through all kinds of obstacles? This is a simpler idea than that of a double made of a semi-invisible, ethereal substance.

2. Many dreams are refractory to the ghost-interpretation; for instance, dreams of things that we have done in the past. The double might transport himself into the future, but how could he live over again the past existence of the body to which he belongs? How could a man when awake really believe that he has taken part in events which he knows to have taken place long ago? It is much more natural that he should think of memories, since these at least are familiar to him.

3. How could he be so stupid and non-inquisitive as not to be impressed by the fact that the person whose alleged double has conversed with his own double while he slept had also had dreams that same night and was with another person than his own double? There is, thinks Durkheim, some naïveté in the blind credulity ascribed to primitive man by this theory.

4. Even though the ghost-explanation should be sufficient to account for all dreams, it would remain unlikely that man ever sought for an explanation of his dreams; they are


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 Rh too common occurrences. "What is dream in our life? How small a place it holds . . . and how surprising it is that the unfortunate Australians spend so much energy in evolving a theory of it."

Let it be observed, first, that whatever objection there may be to the ghost-hypothesis as a means of interpreting the phenomena in question, the savage actually does account for them by that notion. This fact, which even Durkheim admits, causes many of his arguments to lose their relevancy. Sir Everard im Thurn relates the following incident in his book, Among the Indians of Guiana : —

That man should have originally regarded as memories vivid dreams in which he feels and hears himself walking and talking with another person, whose face he sees and whose voice he hears as clearly as in waking life, seems to me an impossible supposition; and to try to explain the dreadful experience of feeling the hand of one's enemy around one's neck, and choking in his grasp, on the ground


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Rh fresh water, "while the bay was salt, and a salt-water fish does not usually show a willingness to swim up a fresh-water stream except in the spawning season.

The run to Hilo was made in about forty hours, the steamer making several stops on the way. It rained "cats and dogs" when the party landed, but as all the baggage had been wrapped in water-proof coverings, nothing was damaged. Arrangements were speedily made for departure on the following morning without regard to the weather; horses and guides were engaged, the best animals being selected for the saddles and others for packing purposes, and a substantial lunch was madeready for the mid-day meal. Doctor Bronson insisted that the horses should all be freshly shod before starting, and an extra supply of shoes and nails carried along. The road goes over the lava-beds for nearly the whole distance, and if a horse loses a shoe he will go lame in a very few minutes, so rough and cutting is the lava.

Fortunately the morning was fine, and the bay of Hilo presented a pretty appearance. Groves of palm and other tropical trees lined the shore, the surf broke in regular pulsations upon the curving stretch of beach, and was made animate by dozens of men and boys at play in the waves. For the first time our friends saw some of the sport in the


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32 water for which the islanders are famous, though less so at present than in the days that are gone. Fred thus described it:

"Each man had a surf-board, which was a thick plank twelve or fifteen feet long and perhaps thirty inches wide, and said to be madefrom the trunk of a bread-fruit tree. There were five or six of the natives to whom we had promised half a dollar each for the performance. They pushed out with their planks to the first line of breakers and managed to dip under it and swim along by the help of the under-tow. They passed the second line in the same way, and finally got beyond the entire stretch of surf into comparatively smooth water.

"Then they tossed up and down for a while, waiting for their chance. What they wanted was an unusually high swell, and they tried to find a place in front of it so that it would sweep them towards the shore just where it broke into a comber. They tried several times but failed, and we began to get out of patience.

"At last they got what they had waited for, while some were kneeling on their planks and others lying extended with their faces


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 154 of remembrance seems mere mockery. I do not know any explanation simpler than the assumption that the person one has felt and seen was actually present. If by chance one knows that person to have been elsewhere, then the immediate inference is that he is double. Certain savages believe that men have four souls. One may, of course, offer objections to this interpretation; but the savage does not realize the difficulties that thrust themselves upon the reflecting mind. Observations of the beliefs of intellectually inferior persons of civilized races show that for most of them there is no contradiction sufficient to make them give up an explanation to which they have become attached. Durkheim alludes to other simpler and more adequate explanations of dreams, but these he does not himself advance.

In the life of young children are found indications of the possibility of the dream-origin of the idea of doubles. Preyer relates of his child, then in his fourth or fifth year, that "he sometimes cried out in the night, and imagined that a pig was going to bite him. He seemed to see the animal as if it were actually there, and he could not be convinced that it was not there even after his bed was brightly lighted up." In the Diary of a Father, published as an appendix to Sully's Studies of Childhood, we read of C., four years old:—"He evidently takes these dream-pictures for sensible realities, and when relating a dream insists that he has actually seen the circus-horses and fairies which appear to him when asleep." Yet he knows that he has spent the night in a room into which horses could not enter; but it does not seem to be one of the wishes of children to get rid of contradictions otherwise than by dismissing the thought of them. The non-civilized adult behaves similarly, and in this he differs simply in degree from ourselves. It is unnecessary to multiply


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 Rh similar instances, yet the following may not be out of place as an illustration of the manner in which a child deals with a situation resembling in one respect that by which primitive man is confronted in the explanation of his dreams and visions. A boy of my acquaintance, nearly four years old, had been deeply impressed by the dragon in a performance of the Play of Saint George. He was told that it was a skin inside which a person roared and gave life-like movements to the skin. He seemed readily to understand and to accept the explanation, yet he still firmly believed the dragon to be alive. In order to complete the explanation, the dragon's skin was brought to the child, and in his presence a man got into it, roared, and moved about. The child, of course, understood, yet the next day he was ready to go hunting for the dragon, and this was not simply in play, if a careful observer can judge at all what is and what is not play in a child's behaviour. What happened in this case is a common experience; emotion made it impossible for him to bring his knowledge and his critical sense to bear upon the problem. An occasional terrifying vision would be sufficient, it seems, to establish and keep up the belief in doubles. Regarding the frequency of hallucinations among savages, Mary Kingsley writes of the West Africans:—"I also know that the African, in spite of all his hard-headed common sense, is endowed with a supersensitive organisation—he is always a step nearer delirium, in a medical sense, than an Englishman; a disease that will by a rise of bodily temperature merely give an Englishman a headache will give an African delirium and its visions."

The four objections just reviewed are offered by Durkheim as an argument against animism. That theory, taken as an original philosophy of life, I do not defend; nor, indeed, do we need to concern ourselves with it at all.


text: United Nations Convention on Biological Diversity


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 156 The question in point is simply whether dreams, visions, and the like have been an original source of belief in ghosts or doubles. I see nothing in Durkheim's criticisms to invalidate Marett's assertion that it is "one amongst the few relative certainties which Anthropology can claim to have established in the way of theory."

Subclass Ic.—I am ready to grant that the spontaneous personification of striking nature phenomena, such as thunder, fire, floods, cataracts, and heavenly bodies, by bestowing upon them either human or animal attributes, was a factor of less importance than dreams and visions. This mode of origin seems to have played an uncommonly important role among the old Aryans, who worshipped "the heavenly ones," "the shining ones," that is, the powers of the luminous heaven. More frequently, perhaps, the tendency to personify served to confirm beliefs in powerful invisible beings and to give to them new characteristics.

Conclusions as to the probability of this origin may be drawn from the behaviour of the child. Many a child barely able to speak forms the habit of ascribing human or animal nature to what is for the adult simply non-personal. He personifies not only because it is for him a natural form of explanation, but also because he finds an inexhaustible source of delight in the fictitious world he creates. Who can make the division between belief and pretence in this mythopoeic world? It was during his fourth year that C. began "to create fictitious persons and animals, and to surround himself by a world, unseen by others, but terribly real to himself." In this connection one should keep in mind the fact of great individual differences. Some children live almost entirely in the real world, and many probably never confuse make-believe with reality. But there are also those who hold firmly to the reality of a world of their


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 Rh own creation. It is these believing children who make the traditions and the dogmas of childhood. Is it improbable that savages should, both in earnest and in play, have placed personal and animal beings behind certain striking phenomena? How otherwise could they better gratify at once a demand for explanation and a love of dramatic play?

The personifications of the primitive man, as well as those of the child, often are classed as animal forms. Nothing could be more natural. Is not the animal world more varied and mysterious to the savage than the human? The size, appearance, and behaviour of animals are so exceedingly diverse that one may expect almost anything that shows self-movement to be an animal. Why, for instance, should not the savage believe that the sun is an animal? Is its shape too simple, or its motion too regular? I do not see how uncivilized man could set limits to the shapes of animals. And as to the sun's movements, they are not, after all, so regular as the scientist would make them. The sun rises at different points winter and summer, and traverses the heavens by different paths. It hides away for long periods, and then shows itself constantly for many days. Even its heat is variable.

But, even though the personification of natural phenomena is to be expected of savages, it is perplexing to find people as far advanced as the old Egyptians, for instance, continuing to worship nature-gods. One must in this case reckon with the momentum of psychic life, just as one does with physical inertia. Habits once formed and expressed in venerated institutions cannot easily be cast aside. But something else contributes also to the production of this paradox: the literal assumes a poetic or a moral sense, and the change remains long unrecognized or unacknowledged.


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 158 The ease with which most men pass, without knowing it, from a genuine belief in God to one which is merely conventional or is maintained for aesthetic or moral reasons is a fact as amazing as it is pregnant with sociological consequences. One may observe among us at present the passage from a vital belief in the traditional personal God to a survival-belief of the kind just mentioned.

Subclass Id.—The idea of creation, it seems, should lead more directly than any other to the conception of beings possessing the attributes of divinities; for the notion of a Maker includes from the first power, dignity, authority, and some degree of benevolence. Yet this very early and potent source of the idea of great unseen beings has been very insufficiently taken into account. The idea of a mighty Maker of things may safely be attributed to men as low in general intelligence as are the lowest tribes now extant, for it appears very early in the child. The first definite inquiries about causes are usually made towards the end of the second year. After that time the question "What makes that?" is for many months frequently on the child's lips. At first his inquiries bear upon particular things and not upon the origin of things in general. Moreover, he does not necessarily think of personal causes. A little later on, however, he passes from particular problems to the general


text: Talk:United Nations Convention on Biological Diversity


text:
Author:Mary Kingsley

Works

 * Travels in West Africa, Congo Français, Corisco and Cameroons (1897)
 * West African Studies (1899)

title: Author:Mary Kingsley


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 Rh one, and thinks of a personal Creator. Many persons have had the good fortune to be present at the child's sudden awakening to this problem and his immediate solution of it by the assumption of a great Maker conceived vaguely as a human being. A child notices a curiously made stone, and asks who made it. He is told that it was formed in the stream by the water. Then suddenly he throws out in quick succession questions that are as much exclamations of astonishment as queries: "Who made the streams? Who made the mountains? Who made the earth?" If children five years old begin of themselves to inquire into the origin of the world, one must admit the presence of such queries in the mind of the most intelligent individuals of the lowest tribes.

The Great Maker or Makers usually take on a human shape, probably because men and not animals are to primitive man the constructors of things. The nests of birds and lairs of animals are no better than the huts of the savage himself, and animals make no implements of any sort. The making of weapons and other necessary objects is one of primitive man's vital occupations. One may well suppose, therefore, that, when he thought of the making of things about him, he placed the Great Maker in the human rather than in the animal group. Nevertheless, it is not impossible that in some cases the Great Maker should have assumed an animal form.

In many primitive societies certain names supposed to designate high personal Gods have been found by later


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 160 scholars to have only a non-personal significance. If we accept both this conclusion and the one now reached concerning belief in a Great Maker, we shall expect to find among primitive peoples one name for a general non-personal force and another for a great Creator. But after a time the non-personal power may naturally enough in many tribes have come to assume personal characteristics, either by direct personification, or by fusion with the creator-idea.

I know of no sufficient reasons, either psychological or historical, for denying any of the following propositions. Each appears to me possible, and, under appropriate circumstances, probable.

(1) Several of the sources may have operated simultaneously in the formation of diverse ideas of superhuman beings and subsequently of gods, so that several gods of different origins may have, from the first, divided the attention of the community.

(2) These sources may have been effective not simultaneously but successively. A ghost-ancestor may have first attained dominance and, later on, a Great Maker.

(3) Any order of succession is possible. It is nearly simultaneously that the belief in unseen personified causes of external events arises in the child's mind, that dreams begin to play a part in his waking life, and that the problem of creation presents itself to him. The question as to which is the first cannot be given a universally valid answer. If we imagine a group of children living in close companionship, uninfluenced by adults, we may conceive that belief in beings arising from any of these sources would, according to the peculiarities of the children and the circumstances of their lives, first gain ascendancy.


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 Rh (4) When several gods existed side by side, fusion and confusion of their characteristics could hardly be avoided: to a deified ancestor may have been ascribed the attributes of a creator, and to a creator the role of an ancestor; a non-moral nature-divinity may have been raised above the natural phenomenon to which it owed its origin, and become, as among the old Aryans, creator and governor of the world. An interaction of god-ideas of different origin,—and therefore of different nature,—is one of the fundamental facts to be taken into account by the student of the origin of religion.

It is for the anthropologist and the historian to discover what, in any particular case, has actually happened in these four respects, and to determine the origin or origins of any particular god. They will have to say, for instance, why Shintoism is a cult addressed exclusively to ancestral spirits, to family and national ancestors, while the other god-ideas have remained unknown to the Japanese, or have been suppressed under the influence of circumstances favourable to the worship of ancestors. It was otherwise with the Aryans. Their imagination was captured by ideas of nature-gods, sun, fire, storms, etc. The richness and versatility of the Greek mind provided that wonderful race with a pantheon composed of ancestor-gods, creator-gods, and nature-gods. Why these differences? As to the psychologist, he may regard his task as completed when he has pointed out the several possible origins of the god-ideas, the characteristics of each, and the nature of the causes which determine the dominance of particular gods.

I close this paper with an illustration of the usefulness of the principles I have just set forth in solving a different problem in the history of early religion.

It is an old opinion that even the lowest savage entertains a belief in a Supreme Being, however dimly conceived and little reverenced. This view was originally based quite


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 162 as much on the propensity of Christians to discover at the beginning of society beliefs in agreement with their own, as on actual facts concerning these peoples. Although this opinion suffered temporary discredit from the discovery that in several instances the alleged monotheistic beliefs really proceeded from the teaching of missionaries, recent anthropological researches furnish sufficient evidence to warrant a return to this view. It seems now established that in every part of Australia except perhaps among the Arunta, a tribe of the central regions, there is a belief in an All Father, who is perhaps always regarded as creator. He is variously named in the different tribes,—Baiame, Duramulum, Mungamongana, Nureli, etc., that is, our father, father of the whole people, father of all the tribes who observe the law, great master, and the like.

In Africa there also exists, it seems, a general belief in a great god conceived as creator. Miss Mary Kingsley says that—

Concerning the natives of central Australia,—the most primitive of that continent,—Spencer and Gillen write,—"In all of the tribes there is a belief in the existence of


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Rh, and just ahead of the great comber they swept on at a speed of little, if any, less than forty miles an hour. There they were just ahead of the breaker, and apparently sliding downhill; one of them was swamped by it, but he dived and came up behind the wave and made ready for the next. The others kept on, and were flung high and dry by the surf, and as soon as they could rise from their planks they ran towards us to receive their pay. One of the fellows stood erect on his plank while in the surf, just as the Nubians at the first cataract of the Nile stand up while descending through the foaming water."

Meanwhile the guides were busy getting the cavalcade in readiness, and a little before eight o'clock the party was under way for the great volcano. From Hilo to the Volcano House is a distance of thirty miles. The horses go for the most of the time at a walk, and though the ride has been accomplished in six hours, it is better to allow not less than ten for it, and "take things easily." This will give time for a rest of an hour for lunch at the Half-way House—the lunch being the one which we have already prepared.

Frank wanted to try the effect of a gallop, but to guard against accidents Doctor Bronson suggested that gallops would be out of order for the day. The path over the lava is full of holes, and very rough and broken in many places. The natives trot and gallop along the road, but the novice should refrain from so doing. At a walking pace there is little discomfort and practically no danger, and parties of ladies and children can make the journey without excessive fatigue. "Chi va piano va sano," as the Italians say.

The youths found the ride from Hilo to the volcano full of interest. They amused themselves by comparing the lava-fields with those of


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 164 They have referred it to a revelation. Andrew Lang, approaching the same facts in a different spirit, has drawn from them conclusions which contain certainly a valuable element of truth. He revives the discredited view of the existence, at the origin of human society, of a relatively noble religious belief, and of its subsequent degeneration into rites of propitiation and conciliation addressed to beings greatly inferior in power and in worth to the original High God, and he claims that his "theory, rightly or wrongly, accounts for the phenomena, the combination of the highest divine and the lowest animal qualities in the same being. But I have yet to learn how, if the lowest myths are the earliest, the highest attributes came in time to be conferred on the hero of the lowest myth."

In my opinion, the priority of the High Gods is not the important point in the interpretation of the facts I have just cited; and, further, it would not necessarily follow from priority that the lower beings are degraded High Gods. The truth of the matter, as I see it, is that the High Gods proceeded from an independent and specific source; they are, or were originally, the Makers. The essential elements of my theory are that man comes to the idea of superhuman beings along several routes, that the characteristics of these beings depend upon


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34 the volcanoes they had visited in other parts of the world, and they studied the ferns, of which there were many varieties, the largest of them having stalks three or four feet in diameter and a height of fifteen or twenty feet. Other ferns were very small, and between the small and large there were all shades of colors and all possible sizes. One of the guides showed that the ferns were not altogether ornamental plants, as he plucked from one of them a woolly substance he called pulu, and said it was used for stuffing beds and pillows. Many tons of pulu are exported every year to America and other countries.

At the Half-way House everybody was hungry, and the lunch was speedily disposed of. A little after six o'clock in the evening the Volcano House was reached, and here the party spent the night. A good supper was prepared and eaten, and the incidents of the day and plans of the morrow were discussed; then the youths joined Doctor Bronson, at the suggestion of the latter, in a sulphur vapor-bath of Nature's own preparation, and after it all retired to sleep. The accommodations were limited, but everybody was weary enough to be willing to put up with the most primitive style of lodging, provided nothing better could be obtained.

Here is what Frank wrote concerning the visit of our friends to the crater of the volcano:

"We took a hearty breakfast and left the house about half-past eight o'clock in the morning, to make acquaintance with the crater. We put on our strongest shoes but did not encumber ourselves with heavy clothing, as the guide said we should not need it. The house is quite near the crater, almost on its edge, and so we didn't have far to go to begin sight-seeing; in fact, we had begun it on the previous evening, and all through the night, as the light of the volcano was almost constantly in our eyes. Two or three times during the night we saw the lava spurting up like a fountain above the edge of one of the small craters, and altogether the scene was an exciting one.

"It is fully three miles from one side of the crater of Kilauea to the other; but you do not walk in a straight course across it, for the simple reason that you can't. The crater is a great pit varying from eight hundred to fifteen hundred feet in depth; its floor consists of lava, ashes, and broken rocks, the lava predominating. It is rough and uneven, and in several places there are small craters sending up jets of flame, smoke, and steam, and there are numerous cracks from which smoke and steam issue constantly. In many places the lava lies in great rolls and ridges that are not easy to walk over, and some of


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Rh alcheringa (or its equivalent) ancestors, who made the country and left behind numberless spirit individuals."

From Melanesia the evidence is equally interesting. Codrington mentions two superhuman beings who at any rate "were never human, yet in some ways originators of the human race; both were female, both subjects of stories not objects of worship." A little farther on he expresses some surprise at the existence in the New Hebrides and Banks' Islands of spirit-beings of two orders. He writes of Qat, —

Let us note that these creators are not worshipped, although they occupy a higher station than any of the worshipped gods.

If recent travellers are to be believed, even the Negritos of central Africa, who are among the lowest human beings, know of a Great Maker, above and distinct from the host of spirits that are around them.

Although the general existence of the belief in High Gods is now accepted by most anthropologists, there is no unanimity of opinion in regard to the origin of the belief Some supporters of the Christian religion have tried to make capital out of this so-called original monotheism.


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 CHAPTER XXI

IKE SLUMPS "NUTCRACKER"

was taken completely off his guard. He struggled violently, but his assailants had the advantage.

One of them pinioned his arms. The other tied the rope about them. A second rope was whipped about his ankles, and secured.

"Push him down," spoke a quick voice.

They half-lifted, half-dropped their prisoner. Ralph was thrust down into an old easy-chair.

"Now then, shut the door and fetch the lamp," was the next order.

Ralph was too astonished to say anything for a minute or two. One of his captors flitted from the room. The front door slammed shut. Then the fellow ran to the kitchen and brought in a lamp and placed it on a table.

"Well," he said with a great chuckling guffaw, "how's Mr. Ralph Fairbanks?"

"Slump—Ike Slump, eh?" spoke Ralph calmly, but following a start of some surprise.

"Don't miss me, Ralphy," suggested Slump's companion in a tone of sneering mockery. Rh

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Rh "And Mort Bemis?" added Ralph coolly. "Good-evening, gentlemen—what can I do for you?"

"Nervy!" sneered Slump—"but it won't last. It's what we're going to do that will interest you, Ralph Fairbanks."

Ralph looked over the enemy with a steadfast glance. They were certainly "dressed to kill." He noticed that their clothing was of the most expensive grade. For all that, it was disordered and ill-fitting.

They looked as they had not slept regularly for a week, and when they did, seemed to have made any old place their resting-spot. Their faces bore marks of dissipation.

Their whole bearing indicated that the money they had recently come into had helped them down the road of idleness and crime.

"We've come back to the Junction specially to see you," observed Bemis, sinking upon a sofa opposite their helpless prisoner.

"Yes, unfinished business, ha! ha!" jeered Ike Slump, looking mightily bad and vicious as he proceeded to light a cigarette. "We owe you one, as you'll perhaps remember. You put the police onto me."

Ralph had not done this. As the reader knows, it was the act of Van Sherwin. Ralph, however,

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180 did not care to enlighten his captors as to the real facts of the case.

"And you stole my job from me," added Mort Bemis savagely. "You've put Young Slavin up to queer us, too."

"So," resumed Slump, "seeing we did one good job for a certain liberal gentleman in Stanley Junction, we'll try and please him in another. At the same time, we get good and even with you for ourselves."

"I can easily guess you might please Gasper Farrington with anything that means harm to me, if that is what you are getting at," observed Ralph pointedly.

"Who mentioned Farrington?" demanded Slump.

"He went on your bond. It is pretty easy to guess you are in cahoots with him in some way," bluntly retorted Ralph.

Mort Bemis got up from his seat and strode up and down the room. Through a long tirade of his fancied wrongs, he worked himself up into a seething fury, real or pretended. Ralph's cool unconcern nettled him. Once or twice he referred to the saving of the limited, and to other acts that had made Ralph popular and his friends proud of him.

"You robbed me of my chance," he snarled.

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Rh "If I'd have been on deck, your luck would have fallen to me. I'm out for revenge. I'm going to pay you off."

"With bluff and blow?" demanded Ralph sarcastically.

Bemis leaned over and slapped Ralph's face.

"Don't you sass me!" he gritted out. "It won't be healthy for you."

"You're a mean coward!" said Ralph. "Give me a free show, and we'll see who is the better man."

"I'll show you something!" snapped Bemis venomously. "Do you know what we are going to do with you? I'm going to fix you, Ralph Fairbanks, so you will never crow over me—you'll never pull another lever."

"Jaw less—get into action," directed Ike Slump tartly.

"Where's the fixtures?"

"Here they are."

Ike reached over to a chair and picked up something that jangled. Ralph regarded the the trap-like apparatus disclosed with some interest.

Bemis took it from the hand of his associate.

"Do you know what this is?" he inquired of Ralph.

"I don't."

"It's a nutcracker, see?"

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182 Ike grinned as if that was a big joke.

"You're the funniest fellow in the world, Mort!" he chuckled gleesomely.

The instrument Bemis displayed somewhat resembled a nutcracker. It opened and was operated by hand pressure. It had fine grooves. These tallied to the fingers on a human hand.

"They used that on the scabs, the time of the big railroad strike," exclaimed Bemis grimly. "The strikers did."

Ralph started. He recognized the "nutcracker" now. It was one of the brutal instruments of torture that had been used to terrify and cripple the men who had taken the places of the strikers, during the labor troubles on the Great Northern about a year back.

"We put your hand in these grooves," proceeded Bemis. "Crack! Your knuckles are gone. See? The man who can pull a lever ever afterwards is a dandy. See?"

"I see," nodded Ralph, his lips set firmly, though his heart misgave him. "Do you mean, Mort Bemis, brute, coward, and traitor, to the honest workingman's cause, that you intend to maim me for life to satisfy a low, paltry spirit of revenge?"

"Mr. Ralph Fairbanks," declared Bemis coolly, "I—mean—just—that."

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Rh "Have you considered what this job is likely to cost you?" inquired Ralph.

"It didn't cost the strikers anything," jeered Ike.

"I am not mixed up in any strike," observed Ralph. "I warn you I have good friends, and any such fiendish act as that you contemplate will send them on your track to the ends of the earth."

"That'll do," growled Bemis. "Grab his hand—the right one, Ike."

"Got it—he's easy to handle," said Slump.

The young towerman was indeed easy to handle, for the reason that his arms were securely surrounded by the ropes, both above and below the elbows.

Ike seized the wrist of Ralph's right hand and Bemis advanced with the "nutcracker."

A cold shiver ran over Ralph as his fingers were encased in the grooves of the iron hand.

He remembered having once seen a victim of the strike, a poor fellow who had gone around with the knuckles of one hand twisted so out of shape that he would never be able to straighten out his fingers again.

Ralph could not resist. If he shouted for help, he knew that he would be brutally silenced. He thought of his mother, of the bright ambitions

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text: Talk:Ex parte Mead Executrix/Opinion of the Court


text: Talk:Ex parte Royall

title: Talk:Ex parte Royall


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184 about to be wrecked by two worthless, cruel enemies.

Then Ralph closed his eyes. He set his lips firmly, and silently prayed that his wicked inquisitors would not dare carry out fully their announced programme.

"I'm ready," sounded Bemis' heartless tones.

"So am I," chorused Ike. "You'll wish you'd minded your own business and let us alone, Ralph Fairbanks."

Bemis began to put the pressure on the vile instrument of torture. Ralph's breath came quick. He felt his fingers compress.

Chug!

Ralph strained his hearing at the new sound. He opened his eyes with a thrill.

The pressure on his hand was relaxed. The "nutcracker," released by Bemis with strange suddenness, dangled at Ralph's finger tips for an instant. Then it dropped harmless to the carpet with a dull clang.

Ralph saw something cleave the air directly in front of him. It was a human fist. It met the broad, astonished face of Mort Bemis squarely.

That shuddering, sickening sound echoed out. It reminded Ralph of the noise made by a boy playing with a big lump of clay, and spatting it violently against a wooden fence.

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Rh He saw Bemis fall back with a roar of awful pain. In that fleeting glimpse, it looked to Ralph as if Mort's face had been flattened out from ear to ear. His nose seemed to have disappeared. In its place was a vague red blotch of color.

Bemis fell flat backwards, his head striking a chair and smashing off its arm.

"You next!" shouted a terrible voice.

Ike Slump had already dropped Ralph's hand. With a sharp cry of alarm he tried to dodge back.

Again that great fist swung forward. Ralph turned pale, and he felt his flesh creep.

As he looked, he saw Ike Slump reeling. There was a ghostly grin on his face. His whole lower row of teeth was gone.

"I said I'd do it," spoke Ralph's rescuer and the assailant of his enemies, "and I've kept my word."

Young Slavin proceeded to liberate Ralph from the ropes that bound him.

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text: Ralph in the Switch Tower/Chapter 21

title: Ralph in the Switch Tower/Chapter 21