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 brought the news of the defeat of the Scots and of James's death to Queen Catherine of Arragon, who sent him to communicate the intelligence to Henry VIII at Tournay. On 1 Nov. 1514 he was created Carlisle herald, and on 30 Jan. 1514–15 the king granted him an annuity of twenty marks for his services at Flodden. In 1520 he accompanied Henry to Ardres, near Calais, and was present at the ‘Field of the Cloth of Gold.’

On 19 Sept. 1524 he was despatched from Newcastle by the Duke of Norfolk with the king's letters to the Queen of Scots and the Earl of Arran. He was constantly engaged in diplomatic negotiations in Scotland in 1531 and 1532. By patent dated 15 June 1534 he was made king-of-arms and principal herald in the northern parts of the kingdom, with the title of Norroy, and 20l. a year. In the same year he went to Scotland in the suite of Lord William Howard, ambassador to the Scottish court. By patent dated 18 April 1536 he was appointed king-of-arms and principal herald of the southern, eastern, and western parts of the kingdom, with the title of Clarenceux. He was actively employed by the Duke of Norfolk in treating with the northern rebels at the time of the Pilgrimage of Grace. In December 1536 he proclaimed the king's pardon at Wakefield, Halifax, and in other towns in the north, and he was present at the execution of Robert Aske and other leaders of the insurrection in 1537. In 1539 he was engaged in a dispute with Sir Christopher Barker [q. v.], Garter king-of-arms, with reference to their respective privileges (Addit. MS. 6297, pp. 124 seq.) In 1552 he visited the counties of Essex, Surrey, and Hants. After the death of Edward VI he went with the Duke of Northumberland to Cambridge, but he opportunely left before the cause of his daughter, Lady Jane Grey, collapsed. Queen Mary treated him as a disaffected person, but did not deprive him of his office. He regained some portion of the royal favour by his conduct during the rebellion of Sir Thomas Wyatt, whom he induced to submit to the queen without sacrificing more of the lives of his deluded followers. In 1555 he held an heraldic visitation in the county of Kent. He died at his residence in Barbican, London, on 22 Aug. 1557, and was buried on the 24th with elaborate ceremony in the church of St. Giles without Cripplegate (Harleian MS. 897, f. 17;, Diary, p. 149). By his will, dated 21 Aug. 1557, and proved on the 25th, he appointed (d. 1567) [q. v.], Norroy king-of-arms, his executor, and gave him all his books.

His heraldic visitation of Essex, Surrey, and Hampshire is preserved in the Addit. MS. 7098 in the British Museum. ‘The Visitation of Essex’ was printed by the Harleian Society (vol. xiii. London, 1878, 8vo), edited by Walter C. Metcalfe, F.S.A.

A portrait engraved from an illuminated initial in a grant of arms is in Dallaway's ‘Science of Heraldry’, plate 12.

HAWORTH, ADRIAN HARDY (1767–1833), entomologist and botanist, a member of an old mercantile family, was born at Hull in 1767. He was articled to a solicitor, but renounced the legal profession on completion of his articles and settled at Cottingham, near Hull, where he began the study of entomology, ornithology, and botany. He moved to Little Chelsea between 1793 and 1797, where he resided until 1812, returned to Cottingham in the latter year, and once more moved to Chelsea in 1817. He became a fellow of the Linnean Society in 1798, founded the Aurelian Society, which never reached twenty members, about 1802, and on its dissolution in 1806 took the lead in establishing the Entomological Society of London, which was afterwards merged in the Zoological Club of the Linnean Society. Besides forming a collection of eleven hundred species and three hundred varieties of lepidopterous insects at Chelsea, he cultivated a great variety of succulent plants, which he obtained from Kew, and during his second residence at Cottingham he helped to form and to arrange the Hull botanical garden. He died suddenly of cholera at Salamanca Place, Queen's Elm, Chelsea, 24 Aug. 1833. He was three times married, and he had children by each marriage. His third wife survived him. His collections were sold by auction, the insects, numbering forty thousand, being catalogued by J. O. Westwood, now professor of zoology at Oxford. The type specimens of insects described by him are now in the British Museum, and his herbarium, which comprised twenty thousand specimens, is incorporated with that of H. B. Fielding at


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1807 if not on his table, the American minister could not but feel that the British secretary might have spoken with more frankness. In truth ministers were waiting to consult the law, and to learn whether Berkeley could be sustained. The extreme Tories, who wanted a quarrel with the United States; the reckless, who were delighted with every act of violence, which they called energy; the mountebanks, represented by Cobbett, who talked at random according to personal prejudices,— all approved Berkeley's conduct. The Ministry, not yet accustomed to office, and disposed to assert the power they held, could not easily reconcile themselves to disavowing a British admiral whose popular support came from the ranks of their own party. Seeing this, Monroe became more and more alarmed.

The tone of the press was extravagant enough to warrant despair. July 27 the "Morning Post," which was apt to draw its inspiration from the Foreign Office, contained a diatribe on the "Chesapeake" affair.

 * "America," it said, "is not contented with striking at the very vitals of our commercial existence; she must also, by humbling our naval greatness and disputing our supremacy, not only lessen us in our own estimation, but degrade us in the eyes of Europe and of the world.... It will never be permitted to be said that the 'Royal Sovereign' has struck her flag to a Yankee cockboat."

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H Calais (, Fœdera, vii. 844), and possibly, through this connection requiring his attendance at London, Haxey was chosen to attend the parliament summoned for 22 Jan. 1396–7. That he was (as Hallam maintains) a member of the house is altogether unlikely. It must rather be supposed, with Bishop Stubbs, that, as his name is absent from the returns of elections to this parliament, he was ‘a proctor of the clergy in attendance under the præmunientes clause.’ Haxey here made himself conspicuous by bringing forward an article in a bill of complaints reflecting upon the extravagance of the king's household; and on 2 Feb. Richard II, when he learned the purport of the bill, called upon the speaker to give up the name of the member responsible for the obnoxious article. When the bill was produced, Haxey's specific attack was found to be directed against the residence of the bishops at court away from their dioceses, and against a particular tax levied on the clergy; but the commons were frightened, and offered a humble apology. Haxey was made the scapegoat for a bill which they had accepted. He was tried in the White Chamber before the king, the lords temporal, and the commons on 7 Feb., and was condemned to death as a traitor. Archbishop Arundel, however, with the other bishops, succeeded in claiming him as a clergyman, and he was afterwards (27 May) pardoned. In the first parliament of Henry IV the judgment was reversed.

During his residence at York Haxey was active in watching over the repair and enlargement of the fabric of the minster. His work there is attested by the presence of his coat of arms (or, three buckets in fess, sable) on the windows of the library and elsewhere. He also presented some plate to the cathedral. During the vacancy of the see, in 1423–4, he was twice appointed by the dean and chapter to be keeper of the spiritualities. He died probably on 8 Jan. 1424–5, and was buried in York Minster.

HAY, ALEXANDER, (d. 1594), Scottish judge, belonged to the family of Hay of Park, Wigtonshire, and in March 1564 was nominated by Maitland of Lethington clerk to the privy council, with a salary of 150l. Scots. In 1568 he accompanied Murray and Lethington to York. In 1577 he became director of the chancery, and in October 1579, upon the death of M'Gill of Rankeillour, he was appointed clerk register, and on 20 Oct. of that year was admitted an ordinary senator of the College of Justice, with the title of Lord Easter Kennet. In the same year he became a member of the commission anent the jurisdiction of the kirk, and in 1581 a member of the commission for the visitation and reformation of hospitals, and also acted as arbitrator in the feud between the families of Gordon and Forbes. In November 1581, after the raid of Ruthven, he was employed to carry to Lennox the king's commands that he should quit the kingdom, and during the absence of Secretary Maitland with King James in Norway he acted as interim secretary for the Scottish language in October 1589. In 1592 he received grants of numerous charters for his good service, and on 19 Sept. 1594 he died.

A younger son, (d. 1616), was clerk of session till 1608, when he became secretary. On 3 Feb. 1610 he was admitted an ordinary lord; acted as royal commissioner at the Glasgow Assembly in 1610; and became clerk-register 30 July 1612. He was the author of ‘Manuscript Notes of Transactions of King James VI, written for the use of King Charles’ (Cat. David Laing's MSS. Univ. Libr. Edinb. p. 17). There are letters of Lord Easter Kennet in the same collection, p. 57, and in Thorpe's ‘Cal. State Papers,’ Scottish series, between 1573 and 1584.

HAY, ALEXANDER (d. 1807?), topographer, was a master of arts of probably a Scottish university, who took orders in the English church. He settled at Chichester, Sussex, where he taught at a school; became chaplain of St. Mary's Chapel in that city, and by December 1798 was vicar of Wisborough Green, Sussex. He never resided at Wisborough. About 1784 he wrote a small pamphlet entitled ‘The Chichester


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42 blamed Berkeley's act; and the "Morning Chronicle" was the organ of opposition.

Monroe waited two days, and heard no more from Canning. July 29, by a previous appointment, he went to the Foreign Office on other business. He found the Foreign Secretary still reticent, admitting or yielding nothing, but willing to satisfy the American government that Berkeley's order had not been the result of instructions from the Tory ministry. Monroe said he would send a note on the subject, and Canning acquiesced. Monroe on the same day sent his letter, which called attention to the outrage that had been committed and to its unjustifiable nature, expressing at the same time full confidence that the British government would at once disavow and punish the offending officer. The tone of the note, though strong, was excellent, but on one point did not quite accord with the instructions on their way from Washington.

 * "I might state," said Monroe, "other examples of great indignity and outrage, many of which are of recent date; . . . but it is improper to mingle them with the present more serious cause of complaint."

Monday, August 3, Canning sent a brief reply. Since Monroe's complaint was not founded on official knowledge, said Canning, the King's government was not bound to do more than to express readiness to


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H in the British Museum (Eg. MS. 2348, ff. 229, 231). Dr. Thomson, his first tutor, says of his earlier years that ‘he was remarkable for shrewdness of observation, diligence in study, and amiable disposition. … Though somewhat shy and retiring to strangers, he was very unselfish and considerate.’

The evidence on military matters which he gave before a committee of the commons in 1869 contains bold and clear statements, and suggests reforms of which several have been since adopted. Hay's ornithological works, which had appeared between 1844 and 1879 as contributions to the ‘Madras Journal of Literature and Science,’ the ‘Proceedings of the Zoological Society,’ the ‘Ibis,’ the ‘Annual and Magazine of Natural History,’ and the ‘Journal of the Asiatic Society of Bengal,’ were collected after his death and published privately in 1 vol. London, 1881, 4to, the editor being his nephew, Captain R. E. Wardlaw Ramsay. A memoir of the author by Dr. W. H. Russell was prefixed.

 HAY, CHARLES (d. 1760), soldier, was third son of Charles Hay, third marquis of Tweeddale, and brother of John Hay, fourth marquis [q. v.] He is sometimes described as Lord Charles Hay of Linplum, because, on the death of his kinsman, Sir Robert Hay, in 1751, he succeeded to that gentleman's estate and territorial designation of Linplum. In 1722 he was gazetted ensign, and in 1729 was preferred to a troop in the 9th regiment of dragoons. He seems to have been present at the siege of Gibraltar in 1727, and to have served as a volunteer under Prince Eugene during the prince's campaign in 1734 on the Rhine, in the war of the Polish succession. In 1741 Hay was elected knight of the shire for Haddington, and two years later was given command of a company in the 3rd foot guards. As virtual, if not actual, lieutenant-colonel of the 1st foot guards he gained conspicuous distinction at Fontenoy. On 11 May 1745 he unexpectedly found himself, on reaching the crest of a low hill, face to face with the French guards, who, though anticipating an engagement as little as Hay, showed no sign of flinching or even of disorder. According to the French accounts, of which Voltaire's is the best known, Lord Charles stepped from the ranks and, in response to a similar movement promptly made by the French commander, politely called to him to order his people to fire, but in reply was assured, with equal politeness, that the French guards never fired first. According to the story which he himself sent in a letter to his brother three weeks later, his men came within twenty or thirty paces of the enemy, whereupon he advanced in front of the regiment, drank to the health of the French, bantered them with more spirit than pungency on their defeat at Dettingen, and then turned and called on his own men to huzzah, which they did. Whichever be the correct version of the occurrence, Hay unquestionably showed extraordinary coolness. In the fighting that followed he was severely wounded; the first published accounts of the battle placed his name in the list of the killed. In 1749 he was appointed one of the king's aides-de-camp, in 1752 colonel of the 33rd regiment, and in 1757 (the first year of the seven years' war) major-general. Hay subsequently received a high command in the force that was sent to Halifax in Nova Scotia under General Hopson, to join the expedition which was gathering there, under the Earl of Loudoun, to attack the French. Loudoun's dilatoriness provoked Hay into exclaiming—such, at any rate, was the charge against him—that ‘the general was keeping the courage of his majesty's troops at bay, and expending the nation's wealth in making sham sieges and planting cabbages when he ought to have been fighting.’ Thereupon a council of war ordered him under arrest, and sent him back to England. After considerable delay he was tried before a court-martial, which sat from 12 Feb. to 4 March 1760. Dr. Johnson, who, at Hay's instance, had been introduced to him at this time, saw him often, was ‘mightily’ pleased with his conversation, and pronounced the defence he had prepared ‘a very good soldierly defence.’ The decision was not made public, the case being referred to the king; and Hay died (1 May 1760) before George II could make up his mind what course to take.

 HAY, DAVID RAMSAY (1798–1866), decorative artist and writer on art, was born in Edinburgh in March 1798. His mother, Rebecca Carmichael, a cultivated woman who in 1790 published a volume of ‘Poems’ in Edinburgh, was left entirely destitute on the early death of her husband. David Ramsay, a banker in Edinburgh, and proprietor of the ‘Edinburgh Evening Courant,’ after whom the boy had been named, saw that he received some education, and placed him in a printing-office as a ‘reading-boy.’ The occupation proved uncongenial, and Hay showed


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H an aptitude for drawing, which led to his apprenticeship in his fourteenth year to Gavin Beugo, a heraldic and decorative painter in Edinburgh. A fellow-apprentice, who became a lifelong friend, was David Roberts, afterwards R.A. Hay devoted his spare time to the higher branches of art, and especially to animal painting. Some examples of his work of this class, and some oil copies after Watteau, are still in the possession of his family. He now attracted the attention of Scott, for whom he painted a portrait of a favourite cat, and who recommended him to adopt such a branch of decorative art as house-painting—‘a department of obvious and direct utility, in which the mass of the people are concerned’—rather than the higher walks of the profession. Scott employed him in the decoration of Abbotsford, along with George Nicholson, a partner whom Hay had joined. They were aided, we are informed, by his partner's brother, William Nicholson, afterwards the portrait-painter and R.S.A. About 1828 Hay started in business on his own account, first at 89 and afterwards at 90 George Street, Edinburgh, where he continued for the rest of his life to practise as a most successful house-decorator. Among his more important public works was the decoration of the hall of the Society of Arts, London, executed about 1846. Several of the leading house-decorators in Edinburgh and Glasgow were his pupils, and they founded in memory of their master ‘The Ninety Club,’ named from the number of his place of business in George Street, a society which still holds an annual dinner. He published many elaborate works on the theory and practice of the fine arts, most of them illustrated by his own designs; moved in the most cultivated Edinburgh society of his day; and accumulated a fine collection of pictures and other art objects. He was a member of the Royal Society of Edinburgh, before whom he read a paper ‘On an Application of the Laws of Numerical Harmonic Ratio to Forms generally, and particularly to that of the Human Figure;’ and Professor Kelland contributed to the same society an ‘Exposition of the Views of D. R. Hay, Esq., on Symmetric Proportion,’ for both of which see ‘Proceedings,’ vol. ii. He was also a founder of the Æsthetic Society, established in Edinburgh in 1851, of which Professors Kelland, Goodsir, and J. Y. Simpson, Dr. John Brown, E. S. Dallas, and Sheriff Gordon were members. Goodsir read before the society two papers ‘On the Natural Principles of Beauty,’ founded on Hay's ‘Geometric Beauty of the Human Figure,’ a work in which the author had been considerably aided by the professor's anatomical knowledge. In 1846 Hay received from the Royal Scottish Society of Arts a silver medal ‘for his machine for drawing the perfect egg-oval or composite ellipses.’ He died in Edinburgh on 10 Sept. 1866. His portrait, a small cabinet work by Sir George Harvey, P.R.S.A., is in the possession of the Royal Scottish Academy, and in 1867 a large series of his ‘educational diagrams, illustrative of his theory of the beautiful and its application to architecture, sculpture, and art production in general,’ was presented to the Board of Manufactures, Edinburgh, by his family and trustees.

His works are: 1. ‘The Laws of Harmonious Colouring adapted to House Painting,’ 1828 (six editions, the latest of which, 1847, is practically a new work). 2. ‘The Natural Principles and Analogy of the Harmony of Form,’ 1842. 3. ‘Proportion, or the Geometric Principle of Beauty analysed,’ 1843. 4. ‘Original Geometrical Diaper Designs, accompanied by an attempt to develop the true Principles of Ornamental Design as applied to the Decorative Arts,’ 1844. 5. ‘A Nomenclature of Colours, Hues, Tints, and Shades applicable to the Arts and Natural Sciences,’ 1845 (2nd edition, 1846). 6. ‘The Principles of Beauty in Colour systematized,’ 1845. 7. ‘First Principles of Symmetrical Beauty,’ 1846. 8. ‘On the Science of those Proportions by which the Human Head and Countenance as represented in works of ancient Greek Art are distinguished from those of ordinary Nature,’ 1849. 9. ‘The Geometric Beauty of the Human Figure defined; to which is prefixed a System of Æsthetic Proportion applicable to Architecture and the other formative Arts,’ 1851. 10. ‘A Letter to Patric Park, Esq., R.S.A., in reply to his Observations upon D. R. Hay's Theory of Proportion. With an Appendix,’ 1851. 11. ‘A Letter to the Council of the Society of Arts on Elementary Education in the Art of Design,’ 1852. 12. ‘The Natural Principles of Beauty as developed in the Human Figure,’ 1852. 13. ‘The Orthographic Beauty of the Parthenon referred to a Law of Nature. To which is prefixed a few Observations on the importance of Æsthetic Science as an Element in Architectural Education,’ 1853. 14. ‘The Harmonic Law of Nature applied to Architectural Design,’ 1855. 15. ‘The Science of Beauty, as developed in Nature and applied in Art,’ 1856. [Knight's English Encyclopædia, Biography, vol. iii. 1856; Lockhart's Life of Scott, vol. v. ch. xii. 1837; Proceedings of the Royal Society of Edinburgh, vol. ii.; Turner and Lonsdale's Anatomical Memoirs of John Goodsir, 1868; Minute Book of the Board of Manufactures,


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H Edinburgh; Art Property in possession of Royal Scottish Academy, 1883 (privately printed); Cat. of Advocates' Library, Edinburgh; Ballantine's Life of David Roberts, R.A., 1866; information from family and pupils.]

HAY, EDMUND (d. 1591), Scottish jesuit, of the family of the Earl of Errol, studied theology at Rome, and took the degree of bachelor in that faculty. He volunteered to accompany to Scotland Nicholas de Gouda, who was engaged as nuncio from Pius IV in a secret embassy to Mary Queen of Scots in 1562. On his return to Rome he joined the Society of Jesus, and at the close of his noviceship was appointed rector of Clermont College in Paris. While holding that office he was ordered by Pope Pius V in 1566 or 1567 to go to Scotland with the nuncio on another special mission to the Queen of Scots. The nuncio proceeded no further than Paris, where, at Mary's urgent request, he remained till the times should become more tranquil; but Hay penetrated into Scotland, and during his brief stay there reconciled several persons, including Francis Hay, earl of Errol, to the catholic church. Subsequently he was appointed the first rector of the academy at Pont-à-Mousson in Lorraine. He was chosen by the French province of the Society of Jesus to attend the first meeting of delegates held at Rome in 1568. Afterwards he governed that province. Finally he was nominated assistant for both Germany and France to Claudius Aquaviva, the general of the jesuits, and he held that post till his death at Rome on 4 Nov. 1591. He is said to have left a work entitled ‘Contrarietates Calvini.’

HAY, EDWARD (1761?–1826), historiographer, member of a respectable catholic family of Wexford, was born at Ballinkeele in that county about 1761. He studied in France and Germany, and returning to Ireland took part in the public movements for effecting a relaxation of the penal laws against catholics. In 1791 he was appointed by the Wexford catholics to act as a member of the committee whose exertions led to the Catholic Relief Bill. Hay endeavoured at this period to suppress the disturbances in Wexford and to restore peace in the county, and was one of the delegates who, on behalf of the Irish catholics, presented an address to Lord Fitzwilliam, and laid a petition before George III at London in 1795. Edmund Burke in a letter in that year referred to him as a ‘zealous, spirited, and active young man.’ Hay also devised a project for obtaining a statistical enumeration of the population of Ireland. His plan received the commendation of Lord Fitzwilliam and Burke, as well as of Bishop Milner, but was not carried out. During the commotions in Wexford in 1798 Hay exerted himself in the cause of humanity. He was, however, arraigned on a charge of treason, and, although acquitted, suffered protracted imprisonment till he obtained his liberation through the interference of Lord Cornwallis. In 1803 he published at Dublin ‘History of the Insurrection of the County of Wexford, A.D. 1798, including an Account of Transactions preceding that event, with an Appendix,’ 8vo; reprinted at Dublin in 1842. To it he appended statements in contravention of allegations made against him by Sir Richard Musgrave in his book on Ireland. Hay subsequently acted as secretary to various associations for the emancipation of the Irish catholics. He was somewhat unjustly superseded as secretary to the catholic board in 1819, nominally for having without authority opened communication with a cabinet minister. In his latter years he was reduced to penury, suffered imprisonment for debt, and died in very necessitous circumstances at Dublin in 1826. An engraved portrait of Hay was twice published at Dublin.

HAY, FRANCIS, ninth (d. 1631), was second son of Andrew, eighth earl, by his wife Lady Jean Hay, only surviving child of William, sixth earl. He was thus, after the death of his brother, the nearest heir, both in the male and female line. He succeeded to the earldom in 1585. Having been converted to catholicism by Father Edmund Hay [q. v.], he became the chief associate of Huntly [see, 1562–1636] in his endeavours to re-establish the old religion. After the defeat of the Spanish Armada he seconded Huntly in his attempts to induce the Spanish king to undertake a second expedition. A letter from Errol to the Duke of Parma asserting his loyalty to the Spanish king was inter-


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1807. make reparation if such reparation should prove to be due: —

 * "Of the existence of such a disposition on the part of the British government you, sir, cannot be ignorant. I have already assured you of it, though in an unofficial form, by the letter which I addressed to you on the first receipt of the intelligence of this unfortunate transaction; and I may perhaps be permitted to express my surprise, after such an assurance, at the tone of that representation which I have just had the honor to receive from you.  But the earnest desire of his Majesty to evince in the most satisfactory manner the principles of justice and moderation by which he is uniformly actuated, has not permitted him to hesitate in commanding me to assure you that his Majesty neither does nor has at any time maintained the pretension of a right to search ships of war in the national service of any State for deserters."

If it should prove that Berkeley's order rested on no other ground than the simple and unqualified pretension to such a right, the King had no difficulty in disavowing it, and would have none in showing his displeasure at it.

Although Monroe thought this reply to be "addressed in rather a harsh tone," as was certainly the case, he considered it intended to concede the essential point, and he decided to say no more without instructions. He might well be satisfied, for Canning's "surprise" was a mild expression of public feeling.


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H cepted in England, and sent by Elizabeth to James on 17 Feb. 1588–9 (printed in, v. 18). On the 29th he was summoned to appear before the council within eight days, under pain of rebellion, to answer against the ‘allegit practice tending to the subversion of the trew religion’ (Reg. P. C. Scotl. iv. 361). On 14 March the king went out hunting with Huntly, and they met Errol in the fields. Huntly urged the king to go with him and Errol. The king refused, and warned them against entering into futile conspiracies (, v. 37). As Errol failed to appear before the council to answer the charge against him, the lords on 21 March denounced him as a rebel (Reg. P. C. Scotl. iv. 367). On the 22nd, probably before news had reached him of the proclamation, he wrote a letter to Robert Bruce, one of the ministers of Edinburgh, asserting that he had been maliciously accused by the chancellor, Maitland, and denied that he had ever neglected his duty to the kirk or ‘travelled anie wise against the religion’ (, v. 54).

Notwithstanding these professions Errol was busy concerting with Huntly and David Lindsay, earl of Crawford, a rising in the north of Scotland. On 7 April 1589 his officers of arms and the keepers of the castles of Slains and Logiealmond were ordered to deliver them up within six hours under pain of treason (Reg. P. C. Scotl. iv. 372). Errol himself had gone to join Huntly and Crawford in the north, and on the 9th the king went to Linlithgow to await the muster of the forces ordered for the suppression of the rebellion. When the king had arrived at Cowie, near Aberdeen, the rebel lords marched out of the city to the Bridge of Dee, accompanied by three thousand men. The lords had given out that their aim was to set at liberty the king, who was ‘held captive and forced against his mind;’ but the presence of the king against them gave the lie to this statement, and although the royal forces numbered only one thousand the rebels' followers were afraid to attack. In such circumstances Huntly could not risk a battle, although Errol ‘would have foughten’ (, v. 55). They therefore dispersed their forces, many of whom had already deserted. Huntly surrendered while the king was still in the north, and Crawford gave himself up at Edinburgh on 20 May. Errol remained at large until the king's second visit to the north in July; but when the king was on the point of returning south, he and other rebels came in to the king, and were ‘received in favour upon composition’ (ib. p. 59). By an act of council, dated Aberdeen, 4 Aug., liberty was granted him to ‘mell and intromett’ with such of his goods as were extant (Reg. P. C. Scotl. iv. 406). On 17 Sept. 1589 he and Huntly made a bond to keep sure and infallible affection, goodwill, and friendship to each other, and to assist and defend one another against all other persons, the king only excepted (‘Errol Papers’ in Spalding Club Miscellany, ii. 279).

Errol still remained in partial disgrace, for when the king in 1590 learned that a marriage treaty was in contemplation between him and a daughter of William Douglas, earl of Morton, he inhibited it on the ground of his rebellion and the fact that he was not reconciled to the church. The marriage was nevertheless celebrated, and the Earl of Morton had to answer to the council for his ‘contemptuous proceeding’ (Reg. P. C. Scotl. iv. 506). On 22 June 1591 Errol, Morton, and other nobles dined at Leith with Bothwell [see, fifth earl] in celebration of the latter's escape from Edinburgh Castle (, p. 86). Errol was present with the king in Falkland Palace on 27 June 1592 when Bothwell attempted to capture it, and being suspected of complicity was committed to the castle of Edinburgh (Hist. of James the Sext, p. 250;, v. 168). He soon obtained his release, but in December 1592 again fell under suspicion through the subscription of his name to two of the famous ‘Spanish Blanks’ which were supposed to be a portion of the instruments of conspiracy in connection with a contemplated second Spanish expedition for the restoration of the catholic faith (see, v. 222–31). He was ordered into ward, but retired to his estates, and on 5 Feb. 1592–3 was denounced a rebel (Reg. P. C. Scotl. v. 42). On 9 March the Earl Marischal was appointed his majesty's commissioner to apprehend him (ib. p. 49). The king advanced to Aberdeen in person, but Errol retired to the far north, and the expedition was without result. The king was evidently loth to proceed to extremities. After his return Errol and his fellow-rebels were, on 16 March 1592–1593, relaxed from the horn (ib. v. 53) and summoned to appear before parliament on 2 June 1593. When the parliament met they were not forfaulted, offers having been made in their name to satisfy the king and kirk. The leniency was displeasing to the kirk, and by an act passed by the provincial synod of Fife on 25 Sept. they were excommunicated (, v. 263). On 12 Oct. the king, while on his way from Edinburgh to the borders to repress irregularities, was intercepted at Fala by the rebel lords, who suddenly appeared and craved his pardon (Hist. of James the Sext, p. 283;, v. 270). He


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44 Hitherto the British press had shown no marked signs of the insanity which sometimes seized a people under the strain of great excitement, but the "Chesapeake" affair revealed the whole madness of the time. August 6, three days after Canning had disavowed pretension to search national vessels, the "Morning Post" published an article strongly in favor of Berkeley and war. "Three weeks blockade of the Delaware, the Chesapeake, and Boston Harbor would make our presumptuous rivals repent of their puerile conduct." August 5 the "Times" declared itself for Berkeley, and approved not only his order, but also its mode of execution. The "Courier" from the first defended Berkeley. Cobbett's peculiar powers of mischief were never more skilfully exerted:—

 * "I do not pretend to say that we may not in this instance have been in the wrong, because there is nothing authentic upon the subject; nor am I prepared to say that our right of search, in all cases, extends to ships of war. But of this I am certain, that if the laws of nations do not allow you to search for deserters in a friend's territory, neither do they allow that friend to inveigle away your troops or your seamen, to do which is an act of hostility; and I ask for no better proof of inveigling than the enlisting and refusing to give up such troops or seamen."

Owing to his long residence in the United States, Cobbett was considered a high authority on American affairs; and he boldly averred that America could


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H advised them to clear themselves at a trial. They went to Dalkeith, and sent word that they were ready to be tried at Perth on 24 Oct. The clergy in Edinburgh and their supporters sent a deputation to the king at Jedburgh to crave that the trial should be strictly legal, and that meanwhile the earls should be committed to prison (Petition, printed in Hist. of James the Sext, pp. 284–6). The king by way of compromise entrusted the trial to a convention of estates to be held at Linlithgow after his return from the borders. The clergy resolved to summon an armed gathering to see justice enforced, but were prohibited by a proclamation of the council. The convention was held on 27 Oct. 1593, but the king, deeming the arrangement inconvenient, named, with consent of the estates, special commissioners for the trial to meet at Edinburgh on 12 Nov. (Reg. P. C. Scotl. v. 104). Those summoned failed, however, to appear, and at a convention held on the 19th others were chosen, who on the 26th passed an ‘Act of Abolition,’ granting full pardon to the accused on condition that they did not repeat their offences. They were to have the option of remaining in this country as true protestants or going into exile; the earls were also required to give security in 400l. each; and Errol was ordered to remove from the realm the jesuit William Ogilvy (ib. v. 108). Their choice between exile and protestantism was to be made by 1 Jan. 1593–4. They failed to arrive at a decision within the specified time, and an act was passed on 18 Jan. declaring that they had ‘tint all benefit and favour granted to them by the Act of Abolition’ (Acta Parl. Scot. iv. 52–3). On the 31st Errol was ordered to enter into ward in the castle of Edinburgh within ten days (Reg. P. C. C. Scotl. v. 130), and failing to do so he was declared to be a traitor, sentence of forfeiture being also passed upon him by the subsequent parliament.

Errol now joined Huntly in Aberdeenshire with a formidable force. The authorities of Aberdeen on 16 July 1594 seized the crew of a Spanish ship, from which James Gordon, an uncle of Huntly, and some other jesuits had disembarked. Huntly and Errol threatened to burn the town unless the prisoners were released. The request was complied with (, p. 118). The king sent a force against them under the command of the young Earl of Argyll, but on 4 Oct. it was, after a severe struggle, completely defeated by Huntly and Errol. The loss on both sides was heavy, and Errol himself was wounded by an arrow in the leg, and was otherwise severely injured (ib. p. 120;, v. 348–53). On the arrival of the king in the north Huntly and Errol kept themselves quiet, ‘and no intelligence was to be had of them.’ Slains Castle, the seat of Errol, was demolished in the presence of the king, but no special effort was made to pursue him. The king returned south on 9 Nov., leaving the Duke of Lennox as his lieutenant to keep the catholic earls in check. On Lennox's persuasion Huntly and Errol left the country, their lands being given to the duke ‘by way of factorie,’ but their wives being made ‘intrometters therewith’ (ib. v. 357). In the following January Scot of Balwearie revealed the signature in the previous August of a bond between the northern earls for the imprisonment of the king and the coronation of the young prince. The revelation did not injuriously affect Errol's relations with the king. On 26 March 1594–5 a proclamation was issued to mariners and skippers against bringing the earls or any of their adherents back (Reg. P. C. Scotl. v. 217). Rumours of his conspiracies abroad caused Errol to be arrested by the States of Zealand, and detained a captive in Middelburg (Cal. State Papers relating to Scotland, p. 713). Subsequently he was surrendered to Robert Danielstoun, the Scottish king's conservator in the Low Countries, who permitted his escape (Reg. P. C. Scotl. v. 315). He returned home secretly in September 1596, and on 22 Nov. a declaration was issued by the council to the effect that he and others had returned without the king's leave, and warning them that unless they satisfied the kirk the king intended to take the field against them in person (ib. pp. 329–31). On the 30th David Black, minister of St. Andrews, was summoned for asserting that they had returned with the king's consent. The king was clearly anxious to be on good terms with the earls, and was specially desirous to bring about a reconciliation between them and the kirk. On the king's representations the assembly ultimately agreed to release Errol and other earls from excommunication, on condition of their abjuring popery and subscribing the confession of faith. With these conditions Errol (see his answers to the articles in, v. 635) complied, and absolution was granted him on 26 June 1597. In the beginning of August he and his friends were also relaxed from the horn at the cross of Edinburgh, and at the parliament held in the following December they were formally restored to their estates and dignities.

Errol enjoyed for some years afterwards much of the king's confidence. On 30 Oct. 1601 a commission of justiciary was given him against Gordon of Gicht and the rebels who had adhered to him (Reg. P. C. Scotl.


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[Ch. 55.] 16. For a fraction of a mile the company may charge according to the number of quarters of a mile in that fraction, and a fraction of a quarter of a mile may be charged for as a quarter of a mile.

17. Article's sent in large aggregate quantities, although made up of separate parcels such as bags of sugar, coffee, and the like, shall not be deemed to be small parcels.

18. For any quantity of merchandise less than a truck load which the company either receive or deliver in one truck on or at a siding not belonging to the company, or which from the circumstances in which the merchandise is tendered or the, nature of the merchandise the company is obliged or required:, to carry in one truck, the company may charge as for a reasonable minimum load having regard to the nature of the. merchandise.

19. The term "terminal station " means a station, or place upon the railway at which a consignment of merchandise is loaded or unloaded before or after conveyance on the railway, but does not include any station or junction at which the merchandise in respect of which any terminal is charged has been exchanged with, handed over to, or received from any railway, company, or a junction between the railway and a siding let by or not belonging to the company, or in respect of merchandise passing to or from such siding, any station with which such siding may be connected, or any dock or shipping place the charges for the use of which are regulated by Act of Parliament.

The term "siding" includes branch railways not belonging to a railway company.

20. In this Schedule the word "company" means a railway company with respect to which a schedule of standard charges is in operation, and the word "trader" includes any person sending or receiving or desiring to send or receive merchandise by railway.

83


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H vi. 298). Nevertheless he and others formerly known as popish earls were still held in strong suspicion by the kirk. In May of this year deputies were appointed by the assembly to wait upon them for half a year to confirm them in the truth. The deputies who waited on Errol reported satisfactorily (, vi. 162), but it was deemed best to continue them in attendance on him (ib. p. 166). At the parliament which met at Perth on 3 July 1602 he was appointed a commissioner to treat of the union with England. A few years afterwards he began to manifest luke warmness in his relations with the kirk, and the absence of the king in England allowed the kirk party to exercise a great influence on the council. In February 1608 a summons was issued against him for having absented himself from the communion, thereby incurring a penalty of 1,000l. (''Reg. P. C. Scotl''. viii. 63). On 21 May he was ordered to be confined within the city of Perth ‘for the better resolution’ of his doubts (ib. p. 94). At the assembly of the kirk held at Linlithgow in July he was ranked among the ‘professed’ catholics, and as one of the ‘head of the party’ (, vi. 752). Shortly afterwards the ‘brethren of the Presbytery of Perth’ appointed to confer with him reported him to be a ‘more obstinate and obdured’ papist than he was before his so-called conversion. It was therefore ordained that he should be excommunicated before 18 Sept. unless he recanted. On 20 Aug. he was, on his own petition, transferred from Perth, on account of a visitation of the plague, to Errol (''Reg. P. C. Scotl''. viii. 159). On sentence of excommunication being passed against him he was removed to permanent imprisonment in the castle of Dumbarton (ib. p. 176). On 11 March 1609 a decree was issued ordaining him to lose his life-rent and to be put to the horn (ib. p. 262). In 1610 Huntly and Errol made overtures to have their cases reconsidered. A meeting to consider Errol's case was held within the castle of Edinburgh, at which he again professed conformity to protestantism, but, according to Spotiswood, he the same night ‘fell in such a trouble of mind as he went near to have killed himself.’ On withdrawing his recantation he was detained in the castle of Edinburgh till the end of May of the following year, when, although still under the ban of excommunication, he was set at liberty (, vii. 159). In 1617 he was absolved from excommunication ‘upon some offers given in of him to some bishops convened at Perth’ (ib. p. 244).

Errol died on 16 July 1631 at his house of Bownes, which he had erected on the destruction of the ancient castle of Slains. He was buried without ceremony within the church of Slains by torchlight, and left instructions that the money which might have otherwise been expended on his funeral should be given to the poor. Spalding describes him as ‘ane trewlie noble man of ane gryt and couragious spirit, who had gryt trubles in his tyme, whiche he stoutly and honorably still careit, and now deit in peace and favour with God and man’ (Memorialls of the Trubles, i. 25). In his lifetime a dispute arose between him and the Earl Marischal regarding the privileges of the high constable, an hereditary office in the Errol and Marischal families. Though the dispute began as early as 1606, the commissioners appointed to consider the matter did not report till 27 July 1631, ten days after the death of the ninth earl. Discussion as to the privileges of the high constable continued for another century (see documents on the constabulary in ‘Errol Papers,’ Miscellany of Spalding Club, ii. 211–250). Errol was three times married. By his first two wives, daughters respectively of the Earl of Atholl and the regent Murray, he had no issue; but by his third wife, Lady Elizabeth Douglas, daughter of the Earl of Morton, he had three sons and eight daughters. He was succeeded in the earldom by his eldest son William.

HAY, GEORGE (d. 1588), Scottish controversialist, second son of Dugald Hay of Linplum, was parson both of Eddlestone and of Rathven (sometimes confounded with Ruthven), Aberdeenshire, holding the two benefices by dispensation from the pope. He conformed at the Reformation, but continued to hold both charges. As commissioner for the diocese of Aberdeen and Banff, he along with other ministers, at the meeting held in the house of James M'Gill in 1561, supported the proposal to deprive the queen of the mass (, ii. 291). In 1562 he was appointed by the assembly to preach in the unplanted kirks of Carrick and Cunningham, Knox preaching in the adjoining district of Kyle and parts of Galloway, the result of their joint labours being the subscription on 4 Sept. by many of the principal gentry and burgesses of the districts to a band at Ayr to uphold the Reformation (ib. p. 348). Knox states


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1807. not go to war without destroying herself as a political body. More than half the people of America, he said, were already disgusted with the French bias of their government.

In the face of a popular frenzy so general, Monroe might feel happy to have already secured from Canning an express disavowal of the pretension to search ships of war. He was satisfied to let the newspapers say what they would while he waited his instructions. A month passed before these arrived. September 3 Monroe had his next interview, and explained the President's expectations,—that the men taken from the "Chesapeake" should be restored, the offenders punished, a special mission sent to America to announce the reparation, and the practice of impressment from merchant-vessels suppressed. Canning listened with civility, for he took pride in tempering the sternness of his policy by the courtesy of his manner. He made no serious objection to the President's demands so far as they concerned the "Chesapeake;" but when Monroe came to the abandonment of impressment from merchant-vessels, he civilly declined to admit it into the discussion.

Monroe wrote the next day a note, founded on his instructions, in which he insisted on the proposition which he had expressly discarded in his note of July 29, that the outrages rising from impressment in general ought to be considered as a part of the


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H that when shortly afterwards the Abbot of Crossraguel presented himself in Maybole to dispute about the mass, the ‘voice of Maister George Hay so effrayed him that efter ones he wearyed of that exercise’ (ib. p. 352). Hay published the substance of his discourses as ‘The Confutation of the Abbote of Crossraguell's Masse set forth by Maister George Hay, 1563.’ He seems for some time to have held some official position resembling that of chaplain in connection with government ceremonials. In a minute of the general assembly, 30 Dec. 1563, he is styled ‘Minister to the Privy Council’ (Buik of the Universal Kirk, i. 42), and by the ‘courtier’ party ‘George Hay, then called the minister of the court,’ was sent to the assembly of 1564 to require ‘the superintendents and sum of the learned ministers to confer with them’ (, ii. 423). The Earl of Morton requested him at the conference to reason against Knox in regard to the obedience due to magistrates. Maitland of Lethington, the secretary, remarked, upon his declining to do so, ‘Marye, ye ar the weall worst of the twa; for I remember weill your ressonyng whan the Quene wes in Caryke’ (ib. ii. 435). Hay took a prominent part in the discussions of succeeding assemblies, and was a member of the principal committees and commissions. In 1567 he obtained the third of the stipend of both parsonages on condition that he caused his charge where he did not reside to be sufficiently served and charged no further stipend. In 1568, on complaint that he neither preached nor administered the sacraments in the parish of Eddlestone, he was sharply rebuked. Though not always approved by the church courts, he was on 5 March 1570–1 elected moderator of the assembly. In 1576 he published a book against Tyrie the jesuit, which a committee of the assembly was directed to revise (, iii. 363). In the following year he was appointed one of the deputies to the general council at Magdeburg for establishing the Augsburg confession. On 25 Jan. 1578 he was appointed one of the visitors of the college of Aberdeen. He died in 1588. He had a brother, William Hay of Eddilstoun, from whom the family of Leith Hay of Rannes is descended.

HAY, GEORGE, first  (1572–1634), lord chancellor of Scotland, descended from a younger branch of the family of William de Haya, ancestor of the Earls of Errol, fourth son of Sir Peter Hay of Megginch (d. 1596), was born in 1572. About 1590 he was sent to the Scots College at Douay, where he studied under his uncle Edmund Hay [q. v.] ‘the jesuit.’ Not long after his return to Scotland in 1596, he was appointed a gentleman of the bedchamber. On 18 Feb. 1598 he received the commendam of the Charterhouse of Perth with a seat in parliament, and also the ecclesiastical lands of Errol. On the ground, however, that the rents of these lands were too small to support the dignity of a lord of parliament, he resigned his seat. On the death of the Earl of Gowrie at Perth, 5 Aug. 1600, he received the lands of Nethercliff out of his forfeited estates. In July 1605 he was appointed along with three other commissioners to repress outrages in Lewis (Reg. P. C. Scotl. vii. 86), caused by jealousy of traders from the lowlands. Proceeding there in August, they succeeded in compelling the unruly persons ‘to remove furth of the isle, and give security not to return,’ but the effect of the visit was only temporary, for the old settlers soon returned, and compelled the new settlers to resign their claims for small sums of money. Some time in 1609 Hay received the honour of knighthood, his name appearing as Sir George Hay in an action against Patrick Douglas of Kilspindie on 3 Aug. of that year (ib. viii. 339). On 24 Dec. of the following year he received from the king a patent for the manufacture of iron and glass in Scotland. A proclamation was made on 19 May 1613 against any of his majesty's lieges transporting out of the kingdom any iron ore in prejudice of Sir George Hay's works (, Annals, ii. 42). On 26 March 1616 he was made clerk-register and an ordinary lord of session. Hay is mentioned by Calderwood as one of three who, on the occasion of the meeting of parliament in May 1617, received the communion in the chapel of Holyrood after the English form, ‘not regarding either Christs institution or the ordour of our kirk’ (Hist. vii. 247), and he was also one of those who voted for the five articles of Perth establishing a modified ceremonial (ib. p. 499). In July 1622 he was made lord high chancellor of Scotland. When Charles I, in July 1626, sent down twelve articles to the lords of session to regulate their duties, Hay and others so firmly opposed them that they became entirely inoperative (, Annals, ii. 138). Hay also steadfastly resisted the command of the king, made on 12 July of this year, that the Archbishop of St. Andrews should have precedency of the lord chancellor. On 4 May 1627 he was created Viscount of Dupplin and Lord Hay of Kinfauns, and on the occasion of the king's coronation in Scotland he was, on 25 May 1633, created Earl of Kinnoull by patent to him


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Arkansas Game and Fish Commission v. United States

Petitioner, Arkansas Game and Fish Commission (Commission), owns and manages the Dave Donaldson Black River Wildlife Management Area (Management Area or Area), which comprises 23,000 acres along the Black River that are forested with multiple hardwood oak species and serve as a venue for recreation and hunting. In 1948, the U.S. Army Corps of Engineers (Corps) constructed the Clearwater Dam (Dam) upstream from the Management Area and adopted a plan known as the Water Control Manual (Manual), which sets seasonally varying rates for the release of water from the Dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the Management Area's peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the Management Area, and opposed the Corps' proposal to make the temporary deviations part of the Manual's permanent water-release plan. After testing the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims' judgment in favor of the Commission was reversed by the Federal Circuit. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is "permanent or inevitably recurring." The Federal Circuit understood this conclusion to be dictated by Sanguinetti v. United States, 264 U.S. 146, 150, and United States v. Cress, 243 U.S. 316, 328.

Held: Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. Pp. 31–40.

[p24] (a) No magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. This Court has drawn some bright lines, but in the main, takings claims turn on situation-specific factual inquiries. See ''Penn Central Transp. Co. v. New York City'', 438 U.S. 104, 124.

As to the question whether temporary flooding can ever give rise to a takings claim, this Court has ruled that government-induced flooding, Pumpelly v. Green Bay Co., 13 Wall. 166, and seasonally recurring flooding, Cress, 243 U.S., at 328, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. E.g., United States v. Causby, 328 U.S. 256, 266. This Court's precedent thus indicates that government-induced flooding of limited duration may be compensable. None of the Court's decisions authorizes a blanket temporary-flooding exception to the Court's Takings Clause jurisprudence, and the Court declines to create such an exception in this case. Pp. 31–34.

(b) In advocating a temporary-flooding exception, the Government relies primarily on Sanguinetti, 264 U.S. 146, which held that no taking occurred when a government-constructed canal overflowed onto the claimant's land. In its opinion, the Court summarized prior flooding cases as standing for the proposition that "in order to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land." Id., at 149. The Government urges the Court to extract from the quoted words a definitive rule that there can be no temporary taking caused by floods. But the Court does not read the passing reference to permanence in Sanguinetti as having done so much work. Sanguinetti was decided in 1924, well before the World War II–era cases and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, in which the Court first homed in on the matter of compensation for temporary takings. There is no suggestion in Sanguinetti that flooding cases should be set apart from the mine run of takings claims.

The Court thus finds no solid grounding in precedent for setting flooding apart from other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is that reversing the Federal Circuit's decision risks disrupting public works dedicated to flood control. While the public interests here are important, they are not categorically different from the interests at stake in myriad other Takings Clause cases in which this Court has rejected similar arguments when deployed to urge blanket exemptions from the Fifth Amendment's instruction.

[p25] The Government argues in the alternative that damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause. The Court expresses no opinion on this claim, which was first tendered at oral argument and not aired in the courts below. For the same reason, the Court declines to address the bearing, if any, of Arkansas water-rights law on this case. Pp. 34–38.

(c) When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence vel non of a compensable taking. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, n.12. Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See, e.g., John Horstmann Co. v. United States, 257 U.S. 138, 146. So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use, Palazzolo v. Rhode Island, 533 U.S. 606, 618, as well as the severity of the interference, see, e.g., Penn Central, 438 U.S., at 130–131. In concluding that the flooding was foreseeable in this case, the Court of Federal Claims noted the Commission's repeated complaints to the Corps about the destructive impact of the successive planned deviations and determined that the interference with the Commission's property was severe. The Government, however, challenged several of the trial court's factfindings, including those relating to causation, foreseeability, substantiality, and the amount of damages. Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding, it did not address those challenges, which remain open for consideration on remand. Pp. 38–40.

637 F.3d 1366, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.

James F. Goodhart argued the cause for petitioner. With him on the briefs were Julie DeWoody Greathouse, Matthew N. Miller, Kimberly D. Logue, and John P. Marks.

Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Moreno, Ben- [p26] jamin J. Horwich, William B. Lazarus, Katherine J. Barton, Robert J. Lundman, and Earl H. Stockdale, Jr.


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H and his heirs male. Sir James Balfour relates that when on the day of his coronation the king sent the Archbishop of St. Andrews as Lyon king-at-arms to Kinnoull to intimate his pleasure that for that day only he should give place to the archbishop, of whom he claimed precedency as chancellor, Kinnoull vehemently declined to obey. The king did not press his point. ‘I will not meddle further,’ he added, ‘with that ald cankered gootishe man, at whose hand there is nothing to be gained but sour words’ (, ii. 142). Kinnoull died in London of apoplexy on 16 Dec. of the following year. His body was embalmed and brought to Kinnoull, where, on 19 Aug. 1635, it was interred in the nave of St. Constantine's Church. Here a life-size statue has been erected to his memory, representing him in his robes as lord chancellor of Scotland. He is commemorated in a Latin epitaph by Arthur Johnston. By his wife Margaret, daughter of Sir James Halyburton of Pitcur, he had two sons, Sir Peter Hay, who predeceased him, and George, second earl of Kinnoull.

 HAY, GEORGE, seventh (d. 1758), was eldest son of Thomas Hay, sixth earl of Kinnoull. While Lord Dupplin he was elected M.P. for Fowey, Cornwall, in 1710, and was in the following year appointed one of the tellers of the exchequer. On 31 Dec. 1711 he was created a peer of Great Britain, with the title of Baron Hay of Pedwardine, Herefordshire, being one of twelve peers specially created by the tory administration of Harley and St. John to secure a majority in the House of Lords on the question of the Utrecht treaty. On 21 Sept. 1715, when the Jacobite rebellion broke out in Scotland, he was suspected of favouring the Pretender, and was placed under arrest in London, with the Earl of Jersey and Lord Lansdowne, but on 24 Jan. following was liberated on bail. He succeeded his father as seventh Earl of Kinnoull in 1719. In 1722 witnesses declared that Kinnoull was privy to the conspiracy of Richard Layer [q. v.], but a motion to examine the witnesses in the House of Lords was negatived. Kinnoull voted in favour of the motion. On 27 Feb. 1724 he was served heir to his father in the lands and barony of Keillor, including Eastern and Western Keillars, Strathevan, and Tulchan in Perthshire. On 24 Nov. 1729 he was served heir to his cousin James, viscount Strathallan, as heir of line special in the barony of Cardeny, chiefly in Perthshire, Balfron, Stirlingshire, and Kirklands of Kilmorith, Argyleshire.

In 1729 he was appointed British ambassador to Constantinople, where he remained till 1737. Two years after his return home he entered on a controversy with the Scottish ecclesiastical courts regarding the presentation of a minister to the parish of Madderty, Perthshire. The earl presented George Blaikie, who was so unacceptable to the parishioners that the presbytery refused to induct. The case was carried by appeal before the commission of the general assembly in Edinburgh, where the objecting parishioners were ably represented by Robert Hawley, weaver, and John Gray, mason. The commission asked Kinnoull to waive hac vice his right of presentation, but this he refused to do (August 1740), from fear of ‘weakening … the right of patronages, and of all those to whom they do by law belong.’ The court instructed the presbytery to induct Blaikie, but while the difficulty was still unsolved Blaikie accepted a call from a congregation in America.

Kinnoull died on 28 July 1758. He married Lady Abigail, daughter of Robert Harley, first earl of Oxford [q. v.] She died 15 July 1750. By her he had four sons and six daughters. His eldest son, Thomas, is separately noticed.

 HAY, GEORGE (1715–1778), lawyer and politician, son of John Hay, rector of St. Stephen's, Coleman Street, London, was born on 25 Jan. 1714–15, and admitted into Merchant Taylors' School in 1724. He was elected to St. John's College, Oxford, in 1731, matriculating on 30 June, and took the degrees of B.C.L. on 29 April 1737 and D.C.L. on 23 Feb. 1742. On 23 Oct. 1742 he was admitted a member of the College of Advocates, and rapidly rose in his profession. His first piece of preferment was the chancellorship of Worcester diocese, which he held from 1751 to 16 July 1764. At the general election in 1754 he was returned for the borough of Stockbridge in Hampshire, and in 1755 he became vicar-general to the Archbishop of Canterbury and king's advocate. Horace Walpole's first impression of Hay's oratory was that his reputation was greater than his merits deserved, but in the course of a month this opinion changed. Hay, as one of Pitt's followers, was appointed a lord of the admiralty in November 1756. Henry Fox caused his re-election at


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 Stockbridge to be opposed, and, although the Duke of Bedford refused to join in the opposition, Hay was defeated. With the exception of the brief interval from April to July 1757, he held a seat at the admiralty board from November 1756 to August 1765. He was a member of that body when Byng was executed (14 March 1757), and, as George II thought that the board had transferred to him the odium of the execution, Hay, with the rest of his colleagues, fell under the royal displeasure, and a seat for treasury borough was refused him. Ultimately he was elected for a Calne (July 1757), and represented it till the dissolution in 1761. In the next parliament (1761–8) he represented Sandwich, and from November 1768 until his death he sat for Newcastle-under-Lyme. Horace Walpole's reluctant praise of Hay's speeches is echoed in the good opinion of others. Alexander Carlyle, when in London in 1758, heard him speak in a debate in the commons on the remodelling of the Habeas Corpus Act ‘with a clearness, a force, and brevity’ which delighted him. In the debates in 1762 on the questions connected with Wilkes he interfered, says Walpole, with ‘much and able subtlety,’ but was attacked by the whigs for his assertion that the law of government was superior to the law of the land. Many years later, on the motion for the repeal of the Stamp Act, he was subjected in the same way to much censure for his ‘arbitrary notions from the civil law.’

Hay resigned his posts of chancellor of Worcester diocese, vicar-general, and king's advocate in 1764, on becoming dean of the arches, judge of the prerogative court of Canterbury, and chancellor of the diocese of London. These offices he retained until his death, and from November 1773, in which month he was knighted, he held with them the judgeship of the high court of admiralty. It was hoped in March 1778 that he would be one of the commissioners to treat with the American colonies, but he ‘positively refused’ the offer. Hay loved company and was lax in application to the duties of his profession. Hogarth, his intimate friend, dedicated to him the fourth print of ‘The Election’ (1 Jan. 1758), and painted his portrait. Hay possessed several of Hogarth's pictures. Garrick admitted that he had passed in Hay's company ‘some of the happiest hours of his life.’ When Hay intervened in the debates on Wilkes, he was taunted with his former intimacy with the agitator, and acknowledged the ‘pleasure and instruction’ which he had received in Wilkes's society. With his irregularities in private life and disregard of his profession his affairs became embarrassed, and under their pressure he put an end to his life on 6 Oct. 1778. Hay was an eloquent speaker and an ingenious advocate. Thurlow, when attorney-general and engaged on the trial of the Duchess of Kingston [see ], called him an ‘able and excellent judge.’ There was printed at Boston, U.S., in 1853 a volume of ‘Decisions in the High Court of Admiralty during the time of Sir George Hay and Sir James Marriott. Edited by George Minot. Vol. i. Michaelmas Term 1776 to Hilary Term 1779.’ Some of his speeches are condensed in Cavendish's ‘Debates,’ i. 401, 503.

HAY, GEORGE, D.D. (1729–1811), catholic bishop of Daulis, and vicar-apostolic of the lowland district of Scotland, born at Edinburgh on 24 Aug. 1729, was the only son of James Hay, a ‘writer in Dalrymple's Office,’ who as a nonjuror and a Jacobite was put in irons and banished in 1715. His mother was Mary Morrison. The father, grandson of Andrew Hay of Inch-noch, was directly descended from Dugald Hay of Linplum, father of (d. 1588) [q. v.], and his son was the last in the male line of his branch of the house. George Hay attended school in Edinburgh, and at the age of sixteen was bound apprentice to George Lauder, a surgeon there. He was pursuing his medical studies when the highland army under Prince Charles arrived at Edinburgh in September 1745. After the victory at Prestonpans (21 Sept.) his master, Lauder, an ardent Jacobite, became military surgeon to the rebel army, and proceeded to the scene of action with several of his pupils. The house of Colonel Gardiner, near Tranent, was used as a hospital, and Hay tended the wounded there. For the next four months he followed the prince's army, accompanying the highlanders in their march southwards, and in their retreat as far as Ardoch. A severe attack of ague compelled him to return to Edinburgh, where he was detained in the castle. After about three months he was transferred to London, and remained a


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46 "Chesapeake" affair; and he concluded his argument by saying that his Government looked on this complete adjustment as indispensably necessary to heal the deep wound which had been inflicted on the national honor of the United States. After the severity with which Monroe had been rebuked for disregarding his instructions on this point barely a few months before, he had no choice but to obey his orders without the change of a letter; but he doubtless knew in advance that this course left Canning master of the situation. The British government was too well acquainted with the affairs of America to be deceived by words. That the United States would fight to protect their national vessels was possible; but every one knew that no party in Congress could be induced to make war for the protection of merchant seamen. In rejecting such a demand, not only was Canning safe, but he was also sure of placing the President at odds with his own followers and friends.

A fortnight was allowed to pass before the British government replied. Then, September 23, Canning sent to the American legation an answer. He began by requesting to know whether the President's proclamation was authentic, and whether it would be withdrawn on a disavowal of the act which led to it; because, as an act of retaliation, it must be taken into account in adjusting the reparation due. He insisted that the nationality of the men seized must


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H year there in easy confinement. Among his visitors while a prisoner in London was Meighan, a catholic publisher. From him Hay heard for the first time arguments in support of the doctrines of the Roman church.

After the passing of the Act of Indemnity in June 1747 he was set at liberty and returned to Edinburgh, but to avoid being called as a witness against his late associates he withdrew to Kirktown House, near Kilbride, the seat of his relative, Sir Walter Montgomery. The casual discovery in the library there of Goter's ‘Papist Misrepresented and Represented’ deepened the impression made by Meighan's arguments. On returning to Edinburgh he attended the fencing school of John Gordon of Braes, who introduced him to John Seton the jesuit. Seton, after giving him a regular course of instruction, received him into the catholic church, 21 Dec. 1748. He now resumed his medical studies under Dr. John Rutherford, who had commenced a course of clinical lectures in the Royal Infirmary. On 14 Oct. 1749 he was elected an ordinary member of the Royal Medical Society, and on 2 Dec. following an ‘honorary member by succession’—a class of members which has since fallen into abeyance. Being debarred by the penal laws from graduating and obtaining a diploma, he kept a chemist's shop in Edinburgh for a year. Afterwards he became surgeon on board a ship fitted out by a company of Leith merchants for the Mediterranean trade, but his engagement terminated on his arrival at Marseilles. Before his departure he had been introduced in London to Dr. Richard Challoner [q. v.], vicar-apostolic of the London district, who had persuaded him to embrace the ecclesiastical state, and had written to Bishop Smith at Edinburgh to secure a place for him in the Scots College at Rome. From Marseilles he therefore went to the Scots College at Rome, which he entered 10 Sept. 1751. He was ordained priest by Cardinal Spinelli, 2 April 1758. On 20 April 1759 he left the college for the Scotch mission, in company with the Rev. John Geddes [q. v.] and the Rev. William Guthrie. They reached Edinburgh on 15 Aug.

In November 1759 Hay took up his residence with Bishop James Grant (1706–1778) [q. v.] at Preshome in the Enzie of Banff, where he laboured as a missionary priest till August 1767. He afterwards spent two years in Edinburgh, settling the affairs of Bishop Smith. He was consecrated bishop of Daulis in partibus, and coadjutor cum jure successionis to Bishop Grant at Scalan, 21 May 1769, and continued his services at Edinburgh as procurator for the clergy and pastor of the secular mission there.

On the death of Bishop Grant, 3 Dec. 1778, he became vicar-apostolic of the lowland district of Scotland. In the following year intense excitement prevailed among the protestant population in consequence of the proposal of the government to relax in a slight degree the penal laws against the catholics. The new chapel-house in Chalmers' Close, near Leith Wynd, Edinburgh, was burnt down by the infuriated mob, 2 Feb. 1779, and next day the rabble plundered the chapel-house in Blackfriars Wynd. During these riots the bishop incurred great personal danger. His papers were saved from the fire, but his furniture and a valuable library, formed by three of his predecessors, were partly burnt and partly distributed by public auction among the populace. He came to London to obtain from the government protection for the suffering catholics. Burke interested himself in the matter, and in a letter to Patrick Bowie spoke highly of Hay. The government, after protracted negotiations, refused protection, but compensation was granted for all losses in consequence of the riots, half the amount being paid by the government and half by the city of Edinburgh. Hay returned to Scotland at the end of June, but it was thought prudent for him to avoid Edinburgh. He had petitioned the holy see for a coadjutor, and John Geddes [q. v.] was nominated on 30 Sept. 1779.

In 1781 he went to Rome to lay before the pope a plan for reorganising the Scots College there. The suppression of the jesuits had done the college serious injury. Hay's chief object was to get Scottish superiors appointed; but although he was well received in Rome, where he remained six months, some years elapsed before the whole of his plan was carried out.

In 1788 he took charge of the ecclesiastical seminary at Scalan in the Braes of Glenlivat, but he was recalled in 1793 to resume his former functions, in consequence of Bishop Geddes's failing health. The loss of all the continental establishments belonging to the mission in the French revolutionary war was a severe trial. With very slender means he began and completed a new seminary at Aquhorties, near Inverury, Aberdeenshire, to which the students removed from Scalan, 24 July 1799. Dr. Alexander Cameron [q. v.], principal of the Scots College in Spain, was appointed his coadjutor in Geddes's place, but did not arrive in Scotland till 20 Aug. 1802. Hay's request for permission to resign his episcopal charge entirely was refused by the pope. He accordingly retired to Aquhorties,


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H and devoted all his time to pious reading and prayer, but his mental and bodily infirmities rapidly increased, and his resignation was at length accepted by the holy see. During the last two years of his life his reason failed. He died at Aquhorties on 15 Oct. 1811, and was buried within the walls of a decayed catholic chapel on the banks of the Don, not far from the house of Fetternear. A new chapel has since been erected there, and the grave is now enclosed in the south transept of the building.

Hay was the chief instrument in keeping the catholic religion alive in Scotland during a dismal period of persecution. His piety and virtues gained for him the veneration of his coreligionists, and the respect of the most enlightened of his protestant contemporaries. The popularity of his principal works, notwithstanding their ponderous style, is attested by the numerous editions through which they have passed, and by their translation into several languages. Dr. (afterwards Cardinal) Newman, on joining the Roman church, was recommended by Cardinal Wiseman to study theology in Hay's writings.

His works are: 1. ‘A Detection of the Dangerous Tendency, both for Christianity and Protestancy, of a Sermon said to be preached before an Assembly of Divines by G. C., D.D. … By a Member of the Aletheian Club,’ London, 1771, 8vo; written in reply to a sermon, ‘The Spirit of the Gospel, neither a Spirit of Superstition nor of Enthusiasm,’ by George Campbell (1719–1796) [q. v.] Hay's ‘Detection’ occasioned a lively controversy, in which Dr. William Abernethy Drummond [q. v.] took part. 2. A series of letters on usury, contributed, under the pseudonym of ‘John Simple,’ to the ‘Weekly Magazine, or Edinburgh Amusement,’ in 1772–3. They were reprinted in ‘Letters on Usury and Interest; showing the advantage of Loans for the support of Trade and Commerce,’ London, 1774, 12mo. 3. ‘The Scripture Doctrine of Miracles Displayed, in which their Nature, their Different Kinds, their Possibility, their Ends, Instruments, Authority, Criterion, and Continuation are impartially examined and explained, according to the Light of Revelation and the Principles of Sound Reason,’ 2 vols., Edinburgh, 1775, 12mo. This is his best work. An appendix contained a dialogue on transubstantiation, which elicited a reply from Dr. William Abernethy Drummond. A rejoinder by Hay appeared under the title of 4. ‘Explanatory Remarks on the Dialogue between Philalethes and Benevolus against the Appendix to the Scripture Doctrine of Miracles, in which the strength of the reasoning made use of in that Dialogue against the Appendix is examined and unfolded, and some of its defects pointed out. By a Lover of Truth and Merit,’ Edinburgh, 1776, 12mo. 5. ‘An Answer to Mr. W. A. D.'s Letter to G. H.; in which … the Roman Catholics [are] fully vindicated from the slanderous accusation of thinking it lawful to break faith with Heretics,’ Edinburgh, 1778, 8vo. In answer to a pamphlet written by Drummond, who issued a rejoinder to Hay's answer. 6. A long pastoral letter on the ‘Duties of the Clergy,’ 1780, 12mo, 96 pp. 7. ‘The Sincere Christian instructed in the Faith of Christ from the Written Word,’ 2 vols., Edinburgh, 1781, 2nd edit., 1793; 20th edit., 2 vols., Dublin, 1822, 8vo. 8. ‘The Devout Christian instructed in the Law of Christ,’ Edinburgh, 1783. 9. ‘The Pious Christian instructed in the nature and practice of those exercises of Piety which are used in the Catholic Church,’ Edinburgh, 1786. 10. Manuscript written in shorthand, preserved at Blairs College, and containing, inter alia, a collection of ‘Controversial Songs’ for popular Scottish airs. Whether Hay composed them does not, however, appear. They are all found in ‘A Collection of Spiritual Songs,’ Aberdeen, 1802. 11. ‘An Inquiry whether Salvation can be had without true Faith, and out of the communion of that one only Church established by Christ,’ London and Derby, 1856, 18mo. A reprint of the appendix to the second volume of the ‘Sincere Christian.’

An edition of his ‘Works,’ prepared under the supervision of Bishop Strain, appeared in 5 vols., Edinburgh, 1871. Vols. i. and ii. contain ‘The Sincere Christian;’ vols. iii. and iv. ‘The Devout Christian;’ and vol. v. contains ‘The Pious Christian.’ Two volumes containing ‘The Scripture Doctrine of Miracles,’ were added to this edition in 1873.

A portrait of him by George Watson, P.R.S.A., has been engraved by G. A. Periam. The original is at Blairs College. Another original portrait of him hangs in the rector's room in the Scots College at Rome.

HAY, GEORGE, eighth (1787–1876), was born at Yester in Haddingtonshire on 1 Feb. 1787. He acceded to the title and estates on the death of his father (George, seventh marquis) in


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H August 1804, having entered the army as an ensign in the previous June. In 1806 he went to Sicily, on the staff of the English general commanding there. Soon after obtaining his company, in May 1807, he joined Wellington's army in the Peninsula. He was made aide-de-camp, and was wounded at the battle of Busaco, 27 Sept. 1810. He subsequently became quartermaster-general, received his majority 14 May 1812, and was again wounded at Vittoria, 21 June 1813. He was at once promoted to be lieutenant-colonel, and went home invalided. As soon as his health was sufficiently restored he joined his regiment, then engaged in the American war. He was once more wounded in the action at Niagara in 1813, when, on refusing to surrender, he was with great difficulty taken alive by his humane enemies. After his return in 1814 the marquis saw no further active service, though he continued on the employed list, and rose through all the grades of the army, his later commissions being dated: colonel 27 May 1825, major-general 10 Jan. 1837, lieutenant-general 9 Nov. 1846, general 20 June 1854, and field-marshal 29 May 1875. He settled on his paternal estates in Haddingtonshire, and in 1824 was appointed lord-lieutenant of the county, where he spent the next eighteen years in the improvement of his estates and the discharge of his duties as a landed proprietor and county magnate. In 1842 he was made governor of Madras, and also, by special arrangement of the Duke of Wellington, commander-in-chief of the local army, then in need of reorganisation and discipline. After a useful tenure of office Tweeddale retired in 1848, when he returned to Yester, and resumed his agricultural pursuits. He led the way in tile-draining, in deep ploughing, and in many bold experiments, in the course of which he incurred considerable expense. He also showed an intelligent interest in the then infant science of meteorology and in mechanics, where his knowledge enabled him to invent machinery which has been found useful by farmers. His services were acknowledged in Scotland by election to the presidentship of the Agricultural and Highland Society.

Tweeddale was made a C.B. in 1815, a K.T. in 1820, K.C.B. in 1862, and G.C.B. in 1867. He was also gold-stick in waiting, and was successively colonel of the following regiments: 30th foot 1846, 42nd foot 1862, 2nd lifeguards 1863. He was likewise during many years a representative peer for Scotland. He was a man of conspicuous physique, and celebrated in the army as a horseman and sabreur. He was also an accomplished coachman, and is said to have once driven the mail from London to Haddington without a halt or relief. He died from an accident 10 Oct. 1876, aged 89, having married, 28 March 1816, Lady Susan Montagu, third daughter of the fifth Duke of Manchester; she died 5 March 1870. Tweeddale had by her seven sons and six daughters; his eldest son, George, earl of Gifford, died in 1862; his second, Arthur [q. v.], succeeded him, and is noticed separately.

 HAY, GILBERT (fl. 1456), Scottish poet and translator, was in all likelihood of the noted family of Hays of Errol, hereditary constables of Scotland. He was probably the son of Sir William Hay of Locharret, and he may be the Gylbertus Hay mentioned among the Determinants or Bachelors of Arts in 1418 and the Masters of Arts in 1419 of St. Andrews University. Following a custom of the cadets in his time, Hay soon after this date went to France, where the influence of the Dauphiness Margaret, daughter of James I of Scotland, may have helped him to the position of chamberlain to Charles VII. He returned to Scotland soon after Margaret's death in 1445. It is not certain when he became a knight, but in introducing in 1456 his version of Bonnet's ‘Buke of Battailes,’ he calls himself ‘Gilbert of the Haye Knycht, Maister in Arte, and Bachilere in Decreis, Chaumerlayn vmquhile to the maist worthy King Charles of Fraunce.’

After his return to Scotland, Hay resided with the Earl of Caithness, at whose suggestion he translated from French the prose works that bear his name. He may have been related to the Caithness family by marriage. He was a witness to the testament of Alexander de Sutherland of Durnbethe, ‘made at Roslin, 14 Nov. 1456.’ The testator leaves Sir Gilbert the Haye his ‘sylar colar,’ with the injunction to say ten Psalters for his soul. (Genealogie of the Sainteclaires of Rosslyn, pp. 91–8.)

Hay's prose works were found in manuscript in the library of Sir Walter Scott after his death, and were edited by David Laing for the Abbotsford Club (1847). There are three treatises in all: 1. The monk Bonnet's ‘Buke of Battailes.’ 2. The anonymous ‘Le Livre de l'Ordre de Chevalerie,’ which Caxton also translated. Hay entitles his version ‘The Buke of the Order of Knyghthood.’ 3. ‘The Buke of the Governaunce of Princes,’ a translation of the spurious Aristotelian ‘Secretum Secretorum.’ These were all translated into expressive characteristic Scotch,


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[Ch. 55.]


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1807. also be taken into account, not as warranting their unauthorized seizure, but as a question of redress between government and government. In respect to the general question of impressment in connection with the specific grievance of the "Chesapeake," he explained at some length the different ground on which the two disputes rested; and while professing his willingness to discuss the regulation of the practice, he affirmed the rights of England, which, he said,—

 * "existed in their fullest force for ages previous to the establishment of the United States of America as an independent government; and it would be difficult to contend that the recognition of that independence can have operated any change in this respect, unless it can be shown that in acknowledging the government of the United States, Great Britain virtually abdicated her own rights as a naval Power, or unless there were any express stipulations by which the ancient and prescriptive usages of Great Britain, founded in the soundest principles of natural law, though still enforced against other independent nations of the world, were to be suspended whenever they might come in contact with the interests or the feelings of the American people."

After disposing of the matter with this sneer, Canning closed by earnestly recommending Monroe to consider whether his instructions might not leave him at liberty to adjust the case of the "Chesapeake" by itself:—

 * "If your instructions leave you no discretion, I cannot press you to act in contradiction to them. In that case


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48 there can be no advantage in pursuing a discussion which you are not authorized to conclude; and I shall have only to regret that the disposition of his Majesty to terminate that difference amicably and satisfactorily is for the present rendered unavailing.

 * "In that case his Majesty, in pursuance of the disposition of which he has given such signal proofs, will lose no time in sending a minister to America, furnished with the necessary instructions and powers for bringing this unfortunate dispute to a conclusion consistent with the harmony subsisting between Great Britain and the United States; but in order to avoid the inconvenience which has arisen from the mixed nature of your instructions, that minister will not be empowered to entertain, as connected with this subject, any proposition respecting the search of merchant-vessels."

Monroe replied, September 29, that his instructions were explicit, and that he could not separate the two questions. He closed by saying that Canning's disposition and sentiments had been such as inspired him with great confidence that they should soon have been able to bring the dispute to an honorable and satisfactory conclusion. With this letter so far as concerned Monroe, the "Chesapeake" incident came to its end in failure of redress.

One more subject remained for Monroe to finish. His unfortunate treaty returned by Madison with a long list of changes and omissions, had been made by Monroe and Pinkney the subject of a letter to


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[Ch. 55.]

85


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 as if it related to the planet Mars. Yet here I am, with the Gifford system part and parcel of my very self, and all my energies, for the time being, devoted to successfully identifying myself with it. My soul stands now planted in what once was for it a practically unreal object, and speaks from it as from its proper habitat and centre.

When I say 'Soul,' you need not take me in the ontological sense unless you prefer to; for although ontological language is instinctive in such matters, yet Buddhists or Humians can perfectly well describe the facts in the phenomenal terms which are their favorites. For them the soul is only a succession of fields of consciousness: yet there is found in each field a part, or sub-field, which figures as focal and contains the excitement, and from which, as from a centre, the aim seems to be taken. Talking of this part, we involuntarily apply words of perspective to distinguish it from the rest, words like 'here,' 'this,' 'now,' 'mine,' or 'me'; and we ascribe to the other parts the positions 'there,' 'then,' 'that,' 'his' or 'thine,' 'it,' 'not me.' But a 'here' can change to a 'there,' and a 'there' become a 'here,' and what was 'mine' and what was 'not mine' change their places.

What brings such changes about is the way in which emotional excitement alters. Things hot and vital to us to-day are cold to-morrow. It is as if seen from the hot parts of the field that the other parts appear to us, and from these hot parts personal desire and volition make their sallies. They are in short the centres of our dynamic energy, whereas the cold parts leave us indifferent and passive in proportion to their coldness.

Whether such language be rigorously exact is for the present of no importance. It is exact enough, if you


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 recognize from your own experience the facts which I seek to designate by it.

Now there may be great oscillation in the emotional interest, and the hot places may shift before one almost as rapidly as the sparks that run through burnt-up paper. Then we have the wavering and divided self we heard so much of in the previous lecture. Or the focus of excitement and heat, the point of view from which the aim is taken, may come to lie permanently within a certain system; and then, if the change be a religious one, we call it a conversion, especially if it be by crisis, or sudden.

Let us hereafter, in speaking of the hot place in a man's consciousness, the group of ideas to which he devotes himself, and from which he works, call it the habitual centre of his personal energy. It makes a great difference to a man whether one set of his ideas, or another, be the centre of his energy; and it makes a great difference, as regards any set of ideas which he may possess, whether they become central or remain peripheral in him. To say that a man is 'converted' means, in these terms, that religious ideas, previously peripheral in his consciousness, now take a central place, and that religious aims form the habitual centre of his energy.

Now if you ask of psychology just how the excitement shifts in a man's mental system, and why aims that were peripheral become at a certain moment central, psychology has to reply that although she can give a general description of what happens, she is unable in a given case to account accurately for all the single forces at work. Neither an outside observer nor the Subject who undergoes the process can explain fully how particular experiences are able to change one's centre of energy so decisively, or why they so often have to bide their hour to do so. We have a thought, or we perform an act,


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[Ch. 55.] Conditions of Carriage.

Submission of proposed conditions.

42. Within six months from the passing of this Act, or within such further time as the rates tribunal may permit, the constituent companies in all the groups shall jointly submit to, and publish in such manner as may be, prescribed by, the rates tribunal—

(a) the terms and conditions (hereinafter called "company's risk conditions") on and subject to which merchandise other than live stock, and live stock, will respectively be carried if carried at ordinary rates;

(b) the terms and conditions (hereinafter called "owner's risk conditions") on and subject to which merchandise other than live stock, and, subject as hereinafter provided, live stock, will respectively be carried if carried at owner's risk rates;

(c) the terms and conditions on and subject to which damageable goods not properly protected by packing will be carried.

Settlement by tribunal.

43.—(1) The rates tribunal shall consider the terms and conditions so submitted, or, if the companies fail to submit terms and conditions within the time so allowed, shall themselves prepare and publish provisional terms and conditions, and after hearing any representative body of traders who may desire to be heard or any person who may obtain a certificate from the Board of Trade that he is, in the opinion of the Board of Trade, a proper person for the purpose, and any other party whom they consider entitled to be heard, shall settle, and when settled publish in the London and Edinburgh Gazettes the terms and conditions which they consider just and reasonable, and shall fix a date, not earlier than two months after such publication, upon which those terms and conditions are to come into force.

(2) When the terms .and conditions so settled come into force they shall be the standard terms and conditions of carriage for all railway companies and shall be deemed to be reasonable.

Conditions on which merchandise to be carried.

44.—(1) On and after the date so fixed as aforesaid the terms and conditions upon and subject to which merchandise is apart from special contract to be carried by a railway company shall be company's risk 38


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 repeatedly, but on a certain day the real meaning of the thought peals through us for the first time, or the act has suddenly turned into a moral impossibility. All we know is that there are dead feelings, dead ideas, and cold beliefs, and there are hot and live ones; and when one grows hot and alive within us, everything has to re-crystallize about it. We may say that the heat and liveliness mean only the 'motor efficacy,' long deferred but now operative, of the idea; but such talk itself is only circumlocution, for whence the sudden motor efficacy? And our explanations then get so vague and general that one realizes all the more the intense individuality of the whole phenomenon.

In the end we fall back on the hackneyed symbolism of a mechanical equilibrium. A mind is a system of ideas, each with the excitement it arouses, and with tendencies impulsive and inhibitive, which mutually check or reinforce one another. The collection of ideas alters by subtraction or by addition in the course of experience, and the tendencies alter as the organism gets more aged. A mental system may be undermined or weakened by this interstitial alteration just as a building is, and yet for a time keep upright by dead habit. But a new perception, a sudden emotional shock, or an occasion which lays bare the organic alteration, will make the whole fabric fall together; and then the centre of gravity sinks into an attitude more stable, for the new ideas that reach the centre in the rearrangement seem now to be locked there, and the new structure remains permanent.

Formed associations of ideas and habits are usually factors of retardation in such changes of equilibrium. New information, however acquired, plays an accelerating part in the changes; and the slow mutation of our instincts and propensities, under the 'unimaginable touch