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] bloom of cacti further transformed them into gardens. "Our people worshiped the gods in grateful recognition for their protection; we danced unmolested by the murderous Apaches; we looked after the welfare of our households."

Gila Crossing, Salt River. One summer afternoon when only women and old men were at home, the Apaches came and killed two Pimas, a man who was irrigating his field and a boy who was hunting doves. That morning the younger men of the village of Rsânûk had planned to have a rabbit hunt toward the north, but when the crier gave the final announcement it was to hunt toward the south. Thus it was that one side of the village had been left unprotected, and when the fighting men returned it was too late to follow the raiders and the revenge was postponed.

Salt River. At the beginning of this year the fruit of the giant cactus was gathered and a large quantity of liquor prepared from it. All the men became intoxicated—too drunk to be on their guard against an attack from the Apaches. Early in the morning a woman started toward the hills to gather cactus fruit. She had not gone far when she saw a man mount a horse and start toward her. She suspected danger and walked backward for some distance before turning to flee. She got halfway to the village before she was overtaken by the Apache, with whom she struggled so desperately as to raise a cloud of dust. Those who were somewhat sober hastened toward the place, but too late to rescue the woman from being roped and dragged to death. However, they overtook the party of Apaches and killed five of them. Upon examining the dead Apaches it was found that their bodies were protected with rawhide armor; then the Pimas understood why their arrows had glanced off or jumped back.

Gila Crossing, Salt River. A year passed without a visit from the marauding Apaches, "We tilled our fields, danced our war dances, sang songs, kept up target practice, and exercised in the use of the shield."

Gila Crossing, Salt River. One cold night in the spring a Pima at Rsoʼtûk was irrigating his wheat field by moonlight. Without thought of enemies he built a fire to warm himself. This the Apaches saw and came about him in the thicket. Hearing the twigs cracking under their feet, he ran to the village and gave the alarm. The Pimas gathered in sufficient numbers to surround the Apaches, who attempted to reach the hills on their horses. Two horses stumbled into a gully, and their riders were killed before they could extricate

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 essentials of a modern liberal education? What studies must be pursued in order to secure, as far as possible, the truly free and cultured mind in accordance with the actual conditions of modern life?" I find no insuperable difficulty in making up a fairly defensible opinion. For amid many and conflicting changes, all is by no means changed. History still lies back of us with its great lessons there, although we must undoubtedly take pains in reading them into clear and convincing formulas. The primary and essential facts and laws of man's environment—what we call nature, in which human nature has its setting, and in which human life develops with a certain reciprocity of influences—also remain the same as ever. And the soul of man, that which is to be educated,—the real being whose culture to the point of highest freedom and perfection it is hoped by all changes in processes the better to attain,—the soul of man is not essentially different in this boastful nineteenth century from the soul of man in the so-called "Dark Ages," or when Plato and Aristotle undertook its informing, purifying, and elevating.

From history, from nature without, and from the nature of the mind, I think we may confidently derive a body of rational conclusions as to what are the essentials of the most modern liberal education, or of all truly liberal education. And now,

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Rh already beginning to feel more or less dissatisfied with their Danish surroundings. But the society, which contained several gifted members, gradually assumed a literary character. It undertook to criticise literary productions and to publish prize essays and poems. In this society particular homage was paid to French taste, and the German school was violently opposed. The Norwegian society's shafts were especially aimed at the worthless imitators of Klopstock, nor did they spare Ewald, whose admirers and friends in turn organized "The Danish Literary Society" and elected Ewald an honorary member. The struggle between these two schools exercised a wholesome influence on the masses by awakening among them an interest in literature and by helping them to appreciate the literary productions of the day. The Norwegian society particularly did a great deal of good by its sound criticism and pure taste. In this circle Wessel spent the greater part of his time, and outside of it he was but little known. Constantly embarrassed by poverty and not thoroughly appreciated by his contemporaries, he sought consolation in the wine-bottle and died prematurely in 1785, barely 43 years old.

Several of the members of the Norwegian society made more or less successful attempts at poetry. In this connection it is worthy of notice that we find developed already at this time that national feeling which is so conspicuous in modern Norwegian literature, and the poets of the Norwegian society invariably sought their materials in Norway, in its natural scenery, in its popular life and traditions, etc. In their works they even occasionally made use of the popular dialects of Norway. Among the Norwegian poets of this period the following are to be mentioned:

(1745-1816). Besides "Zarine" referred to above, he wrote another tragedy, "Einer Tambarskjelver," in which we find an episode from old Norwegian


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 without making any show of argument, deductive or inductive, as though you could not avoid being convinced and agreeing with me, I will frankly state my own opinions and some of the reasons which, in my own reflections, support them.

A truly liberal education includes, I think, as essential to it, the prolonged and scholastic pursuit of three subjects, or groups of subjects. These three are, language and literature, mathematics and natural science, and the soul of man, including the products of his reflective thinking. Any education which is markedly defective on any one of these three sides comes, so far, short of being liberal,—of being, that is to say, the kind of culture which sets the mind most truly free, and which is worthy of the cultivated gentleman in the nobler meaning of that latter word.

It is difficult indeed to separate the scientific study of literature from the study of history, or to separate the proper pursuit of philosophy from the study of both literature and history. But in a qualified, though meaningful, way we may declare that the supreme expression of human mental life is in literature,—of man's life, that is, of thought and feeling. To get the supreme expression of man in action, in the exercise of those activities which we somewhat loosely call practical, we must turn to the study of history. But literature is, of course, a certain form of human


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 language, put on record so that the thoughts and feelings thus expressed can remain for other generations of thinking, feeling men to contemplate sympathetically and yet critically.

Language, then, is the only pass-key to literature; and to be a cultured student of language is the only possible way to possess the key which unlocks the treasure-house of literature. You will notice that I have used this important word in the singular number. I have not said that a liberal education includes of necessity the prolonged scholastic study of many languages, much less the glib-tongued use of many languages. It is undoubtedly a very convenient thing in these days to speak in several of the principal forms of human speech; it is even, if you please, a pretty accomplishment quite worth spending some years of time and some thousands of dollars upon. But it is not an essential, it is not even a very vital and impressive, part of a truly liberal education. The empty-headed hotel clerk, the boorish globetrotter, the frivolous boarding-school miss, may have this accomplishment of languages, and not have the first rudiments of a liberal culture in language.

When, then, I speak of the prolonged and scholastic study of language as an essential of a liberal education, I have reference to acquiring the science and art of interpretation and the cognate science and art of expression. For the


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 of literature can never come by mere untrained reading: I do not care to what kind of literature, or in what language expressed, you apply my denial. He who has made no such study of language as a liberal education implies cannot enter the inner temple of literature, he can scarcely cross the threshold of its outer courts; for the key to the temple is the knowing how to get at the meaning of any literature; and the knowing how to get at the meaning can only be acquired by the study—not of many languages as many, necessarily, but of at least some one language as the supreme expression of human thought and feeling.

In order to illustrate and enforce my opinion I turn somewhat aside for a moment to the current discussions over the place of the ancient classical languages—especially of the Greek—in a modern liberal education. The larger part of the arguments used against continuing these languages in the place they have formerly held seem to me beyond all doubt justifiable. The answers which the defenders of these languages have most employed are scarcely sufficient to ward off or to foil the attacks of their opponents. At the same time I most firmly believe in keeping the ancient classics substantially where they have been in the scheme of a truly liberal education; and I do not believe in the proposed substitution of any of the


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40 themselves. The others were followed and all killed. "This was the only event of the year, and our people were undisturbed further in the practice of their customs."

Salt River. Late in the spring a party of Pimas went to Tucson to buy clothing and other needed supplies. On their return they were ambushed and barely escaped massacre. The Apaches had concealed themselves on either side of the trail, and when the attack was suddenly made the Pimas were at first panic-stricken, but recovered sufficiently to repel their assailants, with the loss, however, of two men killed and a boy captured. This youth is said to have been a very handsome fellow, skillful in the use of the bow and arrow. Fearing a renewal of the conflict, the Pimas hastened home.

A few months later they obtained their revenge upon a party of Apaches who came to the villages to steal horses. The enemy were seen and chased across the river. On the way they were met by a party of Pimas, returning from a council, who called out to the approaching horsemen to ask who they were; on receiving no answer they shot one of them. An Apache called "Slender Leg" was pushed off his mule and two Pimas jumped off their horses and tried to hold him, but he was too strong for them and they had to tie him. He was taken to the well-swept plaza of the village, according to the Salt River calendar, or to an open alkali flat near the villages, as stated by the Gila Crossing annalist, where the people gathered and danced and sang around him. Two widows of men killed in an ambuscade earlier in the season walked four times around the outside of the circle of dancers, and then passed inside as an avenue was opened for them. They carried long clubs of mesquite, with which they beat the captive into insensibility.

There are no events recorded for these two years on either of the two sticks that date back thus far.

Gila Crossing, Salt River. The Maricopas of the village of Masakimûlt, accompanied by one Pima, went on a campaign against the Yumas. The enemy gathered to meet them and sent a messenger to tell them that they should leave aside their knives and bows and fight only with sticks. The Maricopas agreed to this, but the Pima said he had made his bow and arrows to use on the enemy and he would keep them in his own hands. The Yuma messenger showed the Maricopas where to cross the Colorado river and conducted them to the assembled Yumas on the farther side. It was agreed

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lightly, she is near

Under the snow,

Speak gently, she can hear

The daisies grow.

All her bright golden hair

Tarnished with rust,

She that was young and fair

Fallen to dust.

Lily-like, white as snow,

She hardly knew

She was a woman, so

Sweetly she grew.

Coffin-board, heavy stone,

Lie on her breast,

I vex my heart alone,

She is at rest.

Peace, Peace, she cannot hear

Lyre or sonnet,

All my life's buried here,

Heap earth upon it.

57

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] that four from each side should engage in the combat, using sharp sticks about 6 feet long (lances) instead of the customary war club.

Four times each squad ran in a semicircle near the enemy's line; four times they approached each other before the fight began, At the first onslaught three Maricopas and two Yumas were killed; the Yumas killed the surviving Maricopa and retired to their line.

Then Pantatûk, "bravest of the Maricopas," ran his horse through the entire party of Yumas, striking many with his lance before being caught in the line of women behind the warriors. Kâûtci Pai, Hawk-tail, also rode through the Yuma lines, and is living to-day (1902).

Tcwt Hakûtäny, Earth-crack, challenged a Yuma to single combat and was wounded, but recovered.

Then the fight became general, most of the Maricopas being killed. Many Yumas were also killed. The Pima killed so many with his arrows that they could not reach him with their lances, and he escaped, as did some Maricopas, and they reached home in safety. Ââpap Anton, Maricopa Antoine (pl., b) also kept his bow and arrows, and when closely pressed by the Yumas exclaimed in the Pima language: "You can not catch me!" which somewhat confused his enemies and enabled him to escape.

Salt River. In the autumn the Yumas again came to attack the Maricopa village, but did not attempt to surprise it. They formed in line of battle opposite the line of Maricopas, who were equally courageous. The war chiefs stood between the lines. Each man was armed with a club only. The Yuma chief said to his opponent: "I am ready to have you strike me first if you can." The Maricopa chief answered: "It is for me to let you try your club on me, because you want to kill me, and you have traveled far to satisfy your heart." In the personal combat which ensued the Yuma was killed, the sharp end of his opponent's club piercing his side. Then the fight became general, each attacking the man opposite him in the line. There were some Mohave Apaches with the Yumas who fought with bows and arrows. When they saw the line of Yumas wavering, they deserted them. The Yumas retreated some distance and again made a stand, and the fight ended in an indecisive manner, with perhaps a greater loss to the Maricopas than to the Yumas. After the fight the Mohaves wanted to scalp the dead enemy, but the Yuma chief said no, they might scalp some Yumas by mistake, and they must wait until these had been gathered from the field.

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 Rh But we shook our heads.

Bulls, we explained, were not a department of research for which we were equipped. What we wanted, we said, was to learn something of his methods of work.

“My methods of work?” he answered, as we turned up the path again. “Well, really, I hardly know that I have any.”

“What is your plan or method,” we asked, getting out our notebook and pencil, “of laying the beginning of a new novel?”

“My usual plan,” said the Novelist, “is to come out here and sit in the stye till I get my characters.”

“Does it take long?” we questioned.

“Not very. I generally find that a quiet half-hour spent among the hogs will give me at least my leading character.”

“And what do you do next?”

“Oh, after that I generally light a pipe and go and sit among the beehives looking for an incident.”

“Do you get it?” we asked.

“Invariably. After that I make a few notes, then go off for a ten mile tramp with my esquimaux dogs, and get back in time to have a go through the cattle sheds and take a romp with the young bulls.”

We sighed. We couldn’t help it. Novel writing seemed further away than ever.

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 Rh “Have you also a goat on the premises?” we asked.

“Oh, certainly. A ripping old fellow—come along and see him.”

We shook our heads. No doubt our disappointment showed in our face. It often does. We felt that it was altogether right and wholesome that our great novels of to-day should be written in this fashion with the help of goats, dogs, hogs and young bulls. But we felt, too, that it was not for us.

We permitted ourselves one further question.

“At what time,” we said, “do you rise in the morning?”

“Oh anywhere between four and five,” said the Novelist.

“Ah, and do you generally take a cold dip as soon as you are up—even in winter?”

“I do.”

“You prefer, no doubt,” we said, with a dejection that we could not conceal, “to have water with a good coat of ice over it?”

“Oh, certainly!”

We said no more. We have long understood the reasons for our own failure in life, but it was painful to receive a renewed corroboration of it. This ice question has stood in our way for forty-seven years

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 modern languages for the ancient classics. These seemingly conflicting sympathies I harmonize by answering the inquiry, why Latin and Greek should be required, in a way far more satisfactory to me than that followed by the classicists themselves. The ancient classical languages, and especially Greek, are, on account of their very construction and on account of the superiority of their equipment, by far the best media for the study of language, for the acquiring of the science and art of interpretation, for the possession and use of the key to literature.

It seems to me that very insufficient account is customarily made of the difference between the man who has enjoyed and improved this part of a liberal education and the equally intelligent and serious man who is lacking here. The latter can never, try as hard as he may, read a choice piece of literature, of any sort or in any language, as the other readily can. The value of studying Greek, under skilful and judicious teaching, is not set at its highest even when we consider how choice are the stores of Greek literature which are thus opened to the student, if only he can master—a thing possible to only a few professors of Greek in this country—the language so as to move about at all freely in its literature. That value is rather seen at its highest when we consider how in this way a man may be best trained


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 in skill and interest really to get at a good piece of literature in any language—even in his own language.

An acquaintance of mine had some years ago a confidential conversation with the public servant to whom had been committed, for a long period of years, the engrossing of the bills proposed by the successive ministries of one of the most powerful and intelligent nations on the face of the earth. This work this official had done for two prime ministers, one of whom was a classical scholar, the other a man of literary training and tastes, but without a liberal education in language study. The clear-cut, intelligible, interpretable character of the bills drafted by the former were, as a rule, in marked contrast with the confused, uninterpretable, but "flourishing" style of the latter.

As a rule, the Japanese cultivated classes acquire the speaking and writing of foreign languages with an uncommon speed and deftness. But I never knew a scholar of that nation—no matter, we will suppose, how well acquainted both with Japanese and with English—who could furnish you an exact interpretation of either one of these languages in terms of the other. This inability is doubtless partly due to the immense difference in the so-called genius of the two languages. But it is also, I venture to believe, largely due to the fact that exact interpretation—the telling precisely


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 what do you understand this to mean as a matter of careful construing—is not made a study among the Japanese in acquiring a liberal education.

For myself, I do not hesitate to say that if I had forgotten all I ever knew of the Greek language and of the Greek literature, its study would still be worth double the time it cost in making me able to sit down with a good book, in whatever language written, and let its author tell me just what was in his mind and on his heart. I insist upon it that the practical consequences of retiring the study of the classical languages from the curriculum of a liberal education will be something quite incalculable in the way of wresting from those who call themselves cultured the key to every form of good literature.

It would scarcely seem necessary to argue that a somewhat wide acquaintance with, and fondness for, good literature is a necessary part of a truly liberal education. For theoretically few indeed are found ready to dispute this truth. But, in my opinion, this is one of the truths most likely at the present time to be left practically out of the account in making up our estimate of the studies indispensable to such an education. There is reading enough done—there is far too much reading done—by the multitude of the people and by the so-called educated classes. And of the making of many books, the gross, materialistic, sordid manufacture of something to be read—something, no


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 early kinds again, having found that I can grow them as fine and palatable as in the spring. In sowing these in the kitchen garden I sow a part of a row at a time, in the portion worked with the wheel hoe, where the rows are about one foot apart; the seed is sown thinly in the drills, and if it comes up too thickly, should be thinned out to one inch apart for the small kinds and two inches for the larger ones. The seed should be sown from one-half inch to one inch in depth, according as it is early or late in the season or in heavy or light soils. The radishes should be pulled early in the morning and kept in fresh water in a cool cellar until used, so as to have them fresh, brittle and crisp. The large winter varieties are not much raised, except by the Germans, being rather too pungent for the American taste. The seed is generally mixed with the turnip seed and broadcasted or drilled in together, but if I were planting them, I would think it much better to sow them in drills and cultivate separately.

(Scarlet Button).—I have grown this new radish for two seasons and consider it the earliest and finest radish that I have ever grown. It is the earliest, about one inch in diameter, handsome, crisp and brittle. The color is the deepest


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Rh training to produce the co-ordination and efficiency which formed the basis of the morale and fighting stamina later displayed in battle.

By September 1st the training was well under way. The month of August had been in a general way the period of organization. Regular drills and exercises were held by each company after it had been completely organized; battalion parades were undertaken but it was not until the end of the month that each battalion had its full quota of companies and each company its full quota of officers. A regular routine of training was carried out, including close and extended order drill and the manual of arms, which were intended to develop self-confidence in the men and precision in each separate unit The men were given actual instruction in constructing trenches of various types and erecting barbed wire entanglements. Each battalion had one day's trench construction out of three. The other two days were used for drills and for instruction in throwing hand grenades and the latest bayonet exercises. Practice marches and simple maneuvers were held. The rolling, woody country around Quantico was ideal for these maneuvers. On September 5th the Preparedness Parade was held in Washington, D. C., in which this regiment was represented. President Wilson reviewed this parade. In the meantime light machine guns of the Lewis type had been issued and instruction was given daily in their operation by Major Edward B. Cole and his assistants. A temporary range was constructed for this purpose and practical demonstrations were made. Each infantry platoon was equipped with two of these Lewis guns.

Early on the morning of Sunday, September 16, 1917, the entire 1st Battalion, under Major John A. Hughes, left Quantico by train for League Island, Philadelphia, where it was to board a transport for France. The day was dark and it was raining as the men climbed aboard the two long trains. The post band played and as the cars drew away from the station the departing men were given rousing cheers by the members of their regiment who were being left behind. On the night of the 16th the battalion embarked on the U. S. S. Henderson and on the following morning the transport got under way for New York. It arrived there on the morning of September 18, where it remains for five days, and put to sea at 10:30 P. M. September 23rd. The trip across the Atlantic was uneventful, the men, the majority of whom had never been out of sight of land before, soon accustomed themselves to the new life and routine aboard ship. Experienced men were assigned to man the two batteries of four 5-inch guns each. The entire guard and all submarine lookouts and watches were furnished by the battalion. Officers of the battalion were assigned to duty as spotters and battery officers. In fact the only work left to the sailors was scrubbing the deck and running the engine. Drill call


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 matter what, if you can only so construct and advertise it that it will be read,—there is no promise of an end. But the simple undisputed matter of fact is that what is read is not literature, and would, almost all of it, better be left unread.

It is somewhat shocking to discover how few men and women, even among those who claim the title of "educated," know or care much about really good literature. They read—the newspapers (Heaven pity them), the magazines, and the latest, most sensational novels. But with these persons there is little acquaintance or affection having for its object what is really pure, noble, and elevating in the world's best books. I regard it, then, as of the utmost importance to hold up a high standard of literary culture as an aspiration and aim of all those who would lay claim to a truly liberal education.

And here I will venture to speak quite frankly though with perfect friendliness, concerning certain efforts of some of the modern devotees of a more purely scientific education. They are often obviously irritated at the distinction which has not as yet been wholly abolished between the degree of B. A. and the other degrees given at the end of courses which do not emphasize in the same way the linguistic and literary side of culture. They think it unjust and intolerable that graduates of scientific schools, who have been serious and


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 in their studies, should not be eligible—for example—to the distinction of Phi Beta Kappa, or to other similar distinctions. Now, speaking for myself, I certainly have no exaggerated estimate of the worth of titles or of membership in any form of learned societies. But I do care a great deal about the truth, and about maintaining in this country a high standard, a sound basis, and a comprehensive range, for the recipients of a liberal education. And in my opinion, anyone who claims that a larger amount of scholastic study of the physical and natural sciences can be substituted for studies in language and literature, so as to obtain in this way that kind of cultured mind which belongs to the intellectual freeman, is simply maintaining what, from the very nature of the case, cannot be made true. Neither bestowing nor withholding titles and membership in learned societies will alter the fundamental facts of the soul's life and development. Connected with these trifles, however, impressions and tendencies may be strengthened which will work a mischief to the cause of liberal education in this country from which it will not readily recover, even if a long time be allowed for the recovery.

I hasten at once, however, to say that prolonged scholastic training in mathematics and in the elements of the physical and natural sciences is also a necessary part of a truly liberal education.


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 The relation in which mathematics stands to the science of nature is somewhat akin to that in which language stands to literature. In a true and important meaning of the figure of speech, mathematics gives the key into the hand of him who wishes to make a scientific study of nature. The man who is to have any education whatever must have some knowledge of mathematics; he must know enough to be honest and accurate in his business transactions, if he wishes to exercise those virtues. To conduct well many forms of business, one must know much more than the rudiments of mathematics; while the successful pursuit of certain branches of mechanical industry and invention requires a considerable training in this branch of education. But it is for a certain amount of the scholastic study of mathematics, as a necessary factor in a liberal education, that I now plead. Much has been made, by the advocates of a high value for the mental training that comes through this form of study, of the kind of close deductive reasoning which it employs. Such an estimate is partially justified; although it has, I think, very often been exaggerated. Of more educational value is that training which mathematics imparts in respect of quickness of insight and deftness of handling bestowed upon set problems. To enjoy, and to be skilful in, attacking problems is a not insignificant attainment for any educated mind.


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 For is not life one prolonged succession of problems that demand to be solved? To be sure, most of these problems are not of the mathematical order and do not admit of solution by the methods of mathematics. But it is a thoroughly good thing for a man not to be a coward or a sluggard when he is brought face to face with any hard problem.

The truly liberalizing power of mathematics, however, is felt only when two things are attained. The first of these is a certain amount of free and joyful movement in the handling of mathematical symbols and formulæ. The other is a certain grasp upon the beautiful ideas and the wonderful laws which are represented by these symbols and formulæ. A friend of mine, who stands in the very front rank of the world's great mathematicians (a rank so thin that two men could probably count its numbers on the fingers of their two hands), has recently declared that for him the higher mathematics is chiefly an æsthetical affair; and that no man ought to study it who does not rejoice in the beauty of the ideas with which it deals. Now, of course, it cannot be maintained that such very high mathematics shall be made a necessary part of all liberal culture. But, in my opinion, it is desirable for one in pursuit of this culture to go far enough in mathematics to get some glimpse of the ideality, and the beautiful ideality, of the world in which mathematical conceptions reign supreme.


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 scarlet. It has very small leaves, and a great many can be grown in a small space, rendering it very valuable for forcing. Last winter I sowed seed between the rose bushes in my forcing houses and kept my table supplied, and had large quantities to sell.

—This is a fine selection of the long, slender scarlet radishes so generally seen in the spring, and is preferred by some to the round or turnip radishes. It is very early, tender, crisp and fine flavored; the roots averaging half an inch in diameter at the top and 9


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Rh hall be turned into Train Tubs, which are placed under the Lamps in Heaven, or the Land of Souls.

They keep their Clothes pretty clean, though in other Things, epecially in their Victuals, they are not o nice, chiefly the Women, who have got Children, are very dirty and lovenly, well knowing, that they cannot be repudiated, or ent a packing. But thoe Wretches that are barren, or whoe Children are dead, and do not know the Moment they may be ent away, are obliged to take more Care of their Cleannes and Property, that they may pleae their Hubands.

Greenlanders Proviion and Victuals are Fleh and Fih Meat, (for the Country affords no other kind of Pro-  Rh


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Rh

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 regulation, all alcoholic beverages must warn pregnant women against their use. 27 U.S.C. § 215 (forbidding sale of alcohol unless it bears the following statement: “GOVERNMENT WARNING: (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects….”); 27 C.F.R. § 16.21. Congress has gone further and made the possession and consumption of certain products criminal because of their presumed effect on the health of consumers. Other products have created health hazards and resulted in extensive and expensive class action litigation. E.g., Amchem Products v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) affirming denial of certification of class of potentially millions who had suffered injuries as a result of exposure to asbestos); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liability Litig., 282 F.3d 220, 225 (3d Cir.2002) (class action of six million who took diet drugs (Pondimin and Redux) that were later linked to valvular heart disease); In re Breast Implant Cases, 942 f.Supp. 958, 959–60 (S.D.N.Y.1996) (discussing possibility of transfer of thousands of cases alleging injuries from silicone breast implants). Public health is one, if not the, critical issue in society.

This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. As discussed, infra, this guiding principle comports with the law of products liability under New York law. As Sir Francis Bacon noted, “Nam et ipsa scientia potestas est,” or knowledge is power. Following from this aphorism, one important principle in assigning legal responsibility is the common knowledge of consumers. If consumers know (or reasonably should know) the potential ill health effects


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 Moreover, a truly liberal education implies enough knowledge of mathematics to use it as a key for getting at those more elementary and fundamental principles upon which external nature is built. A knowledge of these principles is itself an indispensable part of an education. The extreme advocates of a scientific, as distinguished from a literary and philosophical culture, are accustomed to consider themselves as the only representatives of a really modern education. And it is undoubtedly true that natural science has only comparatively recently begun to come to the front as a claimant of rights—of something more than mere bits of tardily granted concessions. These advocates too often forget, however, that this is because natural science is itself so new, and is still so comparatively crude and ill instructed as to the most effective methods of liberal culture; is even so doubtful as to the actual results which it could show if the higher education of the country were more fully committed to its hands. For here again it is simple matter of fact that literature and philosophy were brought to a very high pitch of cultivation centuries before the first crude beginnings of real natural science were made. It is true also that the equipment and accredited method of these two-thirds of a liberalizing education are still superior to that of natural science. And now I wish I might be pardoned (though I am sure I shall not be) for


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134 viion) as Whales, Seals, Hares, and Rypes, or white Partridges, and all orts of Sea Fowls. They eat their Fleh Meat ometimes raw, ometimes boiled, or dried in the Sun or Wind; but their Fih Meat is always thoroughly done, or eat them dried in the Sun or Air, as Salmon,  Holybut, or the mall Stints, which, in the Months of May and June, they catch in great Abundance, and keep them cured and dried for Winter Proviions. And whereas, in the Winter Seaon, it is very rare to get Seals, except in the mot northern Parts, where they take them upon the Ice; o they make all the Proviion of them, they can get, in the Fall, and bury them under the Snow, until the Winter comes on, when they dig them up, and eat them raw and frozen as they are. Their Drink is nothing but Water, and not, as ome Writers have wrongly pretended, Train Oil; for they do not o much as eat the Fat, but only in Sauces to their dried Fih. Further-


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Rh Furthermore, they put great Lumps of Ice and Snow into the Water they drink, to make it the cooler for to quench their Thirt. They are, taking them in general, very hoggih and dirty in their eating and dreing of their Victuals; they never wah, cleane, or cour the Kettles, Pots, or Dihes, in which they dres, and out of which they eat their Victuals; which, when dreed, they often lay down upon the dirty Ground, which they walk upon, intead of Tables. They will, with o great an Appetite and Greedines, feed upon the rotten and tinking Seal Fleh, that it turns the Stomach of any hungry Man, who looks upon them. They have no et Time for their Meals, but every one eats when he is hungry, except when they go to Sea, and then their chief Repat is a Supper, after they are come home in the Evening; and he, whoe Supper is firt ready, calls his Neighbours to come and partake of it, as he does again with them reciprocally; and o it goes round from one to another. Rh


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 "scientific." Undoubtedly also—to repeat the remark of a colleague, a professor of physics—"most of the advances in science consist in correcting mistakes." Notwithstanding the hardship which would be involved in the effort to draw a fixed line between the region where opinion dwells and the domain ruled over by science, the characacter of the conception to which the latter word answers should be made clear to every educated mind. How often does one meet men of fine literary culture who still show no little bigotry, and commit not a few important mistakes, because they simply do not know what science really is. And again, if they wanted to attain knowledge on any subiect which should be worthy of being called scientific, they simply do not know how to go to work; they know nothing about scientific method in the investigation of any subject.

It seems to me, then, especially desirable in these days that the somewhat prolonged scholastic study of natural science should be made a required part of every liberal education. And if I were asked that difficult practical question, "How much?" I should be inclined to answer: "Enough to give the student a pretty firm grasp on those fundamental physical principles upon which the world of things is built, and enough of the pursuit of some form of descriptive natural science to impart the training of the powers of observation and the habit of properly


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136 The Women do not eat in Company with the Men, but eparately by themelves; and in the Abence of their Hubands, when gone a fihing, they, being left to themelves, invite one another, and make grand Chear. And as they eat heartily, when they can come at it; o they can as well endure Hunger, when Scarcity of Proviion requires it. It has been oberved, that in great Scarcity they can live upon Pieces of old Skins, upon Reets, or Sea Weeds, and other uch Trah. But the Reaon why they can endure Hunger better than we Foreigners, I take to be their Bodies being o quat and corpulent, their Fat yielding them Matter of Nourihment within themelves, for a while, till it be conumed.

Beides the Proviions, they alo eat a ort of reddih  and a kind of Root, which they call Tugloronet, both dreed with Fat, or Train Oil; the Dung of the  taken out of the Guts, when they cleane them; the Entrails of Partridges, and the like  pas


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 connecting newly observed natural objects with groups of similar objects known before." I find myself disinclined more and more, on the other hand, to consider liberally educated, in accordance with the spirit and the needs of the age, any man who knows nothing certain of the fundamental things in physics, or who cannot turn a trained eye on at least one group of natural objects—be this group stars or stones, trees, flowers, ferns, or the human body, birds, beetles, the animals in the zoölogical garden, or those domesticated in the city house or back-yard.

I am also quite as firmly persuaded that a somewhat prolonged study of the human soul—of logic, psychology, ethics, and of those problems which have formed the themes of reflective thinking since man first began really to think at all, of philosophy, that is to say—is a necessary part of a truly liberal education. I find it difficult to understand how any man can attain the genuine scholar's liberal mind, who takes no interest in the processes and laws of his own mental and moral life, and in the progress and laws of the mental and moral lives of other men. If I were to argue in detail for a portion of these studies in the required work of every college curriculum, I think I could show how close is the relation they sustain to the most successful pursuit of every other kind of studies. Modern psychology is certainly making


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 large claims and rapid advances, in the direction of proving itself an indispensable auxiliary to the entire group of liberalizing pursuits. Certainly no one of those learned professions, including the fourth profession of teachers, into which the great body of liberally educated youth annually pour themselves, can in these days afford to neglect the somewhat prolonged and scholastic study of the human mind; of the four, certainly neither the preacher nor the teacher. The former has been traditionally a student of philosophy. The latter is now compelled, even by the authorities in charge of our higher public and normal schools, to know something, in appearance at least, of psychology. It must be a truly humiliating experience for a college graduate, who has had no work in this subject as a part of his collegiate education, to be compelled to sit down beside the girl graduate of the highschool and get his lesson in psychology.

My task will doubtless be hardest of all when I insist on some philosophical study as a necessary part of a truly liberal education. Yet in my own opinion there is no other study which is so distinctly liberalizing as philosophy. Just to face these profound problems concerning the being of the world; concerning the being, the origin, and the destiny of man; and concerning God and his relations to the world and man's relation to him; just to know that there are such problems, and


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 232 of the Papacy, and especially the dogma of the Pope's Infallibility. It is with this last subject exclusively that we are concerned.

This subject of Papal Infallibility was not mentioned among the causes for which the Council was assembled, nor was it introduced into the discussion for the first three months. During that period the Bishops' attention was devoted to discussions on faith; the discipline of the clergy; the project of the compilation of a new Catechism, for universal use, in place of all local Catechisms in the Roman body. Matters such as these occupied the first twenty-eight Congregations. But progress was excessively slow: partly owing to the reluctance of the minority to proceed, under fear of what the future would produce, and under dislike of various extreme measures proposed to them. It seems clear that the Roman authorities had not anticipated so much persistent opposition. At the end of three months, minority-Bishops said with relief, "We have done nothing, and that is a great deal." The Dogmatic Constitution on faith was expected to be ready for the second Public Session on 6th January. But when the date arrived the doctrine was not ready. Consequently the entire Session was occupied by formal recitation of the Tridentine Creed.

In January 1870 the crisis became acute when Manning and other members of the Vatican Council presented the Pope with an Address, urging him to declare his own Infallibility.

Upon this Döllinger wrote his "Few Words " to the Augsburg Gazette. He pointed out with all possible emphasis the magnitude of the suggested revolution. He declared that Papal Infallibility had never been believed hitherto—believed, that is, with the faith due to a divine revelation. Between the faith due to a truth


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Rh pas for Dainties with them. They make likewie Pancakes of what they crape off the Inide of Seal Skins, when they dres them. In the Summer they boil their Meat with Wood, which they gather in the Field, and in Winter Time over their Lamps in little Kettles, of an oval Figure, made of Bras, Copper, or Marble, which they make themelves.

For to rekindle the Fire, when extinguihed, they make ue of this Expedient, which hews their Ingenuity: They take a hort Block of dry Firr Tree, upon which they rub another Piece of hard Wood, till by the continued Motion the Firr catches Fire. When we firt came among them, they did not like to tate any of our Victuals, but now they are glad to get ome of it, epecially Bread and Butter, which they like mightily, but they do not much care for our Liquors; yet, notwithstanding, ome of them, who have lived ome Time among us, have learnt to drink Wine and Brandy, and never refue it, when it is offered them. But


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 ] divinely revealed through the Church, and the acceptance of a theological theory, the difference is immense. Hitherto there had been conjectures, opinions, probabilities, even human certainty in individual minds as to Papal Infallibility; but never that divine faith which is the response of the Catholic to the doctrine of the Church. Döllinger added that while the Infallibilists' Address spoke of the Pope being infallible when instructing the entire Church, it was historically clear that all papal utterances on doctrine during the first twelve hundred years were directed to individuals or local communities.

The effect of this urgent appeal to historic certainties was very considerable. Archbishop Scherr, Döllinger's diocesan, had a very uneasy time in consequence at the hands of the Jesuits and the majority in Rome. Although his personal conviction and sympathy were with the learned historian, he could not help a certain human self-pity, and he is said to have sighed, "What a comfort it would be if only Döllinger would expire!" But the vigorous old Professor seemed in no way likely to comply with the archiepiscopal wishes.

A further stage in Vatican procedure was reached when Pius IX. imposed upon the Council, on 22nd February 1870, a new series of Regulations which were designed to accelerate progress, and to drive things forward to their intended conclusion.

These New Regulations as to procedure were introduced into the Council without its consultation or consent. They were simply imposed upon the Council, from without; by the same authority which directed everything without personally appearing. The main features of the New Regulations are two. The first rule authorised the Presidents to control any individual speaker who in their opinion wandered from


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 234 the point. Another rule gave the Presidents power, at the request of ten Fathers and with the approval of the majority, to closure the discussion. This second Regulation involved tremendous possibilities. It placed the minority entirely at the mercy of the majority. It thereby determined a principle more momentous still—namely, that Decrees of Faith could be imposed on the Church by mere majority of votes. Hitherto the minority had taken refuge in the principle that no opinion could be elevated into a dogma of faith without the Council's moral unanimity. The existence of an opposition so extensive as between one hundred and two hundred Bishops rendered the Church secure on that theory from the imposition of the Ultramontane conception of papal prerogatives. But the New Regulations swept that plea of moral unanimity entirely away. Whatever was the intention of its propounders, its effect is clear; and that effect was disastrous to the men who clung to what they regarded as the ancient truth. Naturally the depression of the minority was profound.

Döllinger wrote a very powerful criticism upon these New Regulations. He characterised the existing Roman Synod as the first in history in which instructions as to procedure had been imposed upon the Bishops without their co-operation or approval. The New Regulations concentrated all real power in the hands of the presiding Cardinals and the Commission of Suggestions, so that the Council itself, as opposed to these, had neither power nor will. Equally momentous was the fact that doctrine was to be determined by majorities. This was an intrusion of parliamentary forms into synodical procedure—with this tremendous difference: that whereas laws passed by majorities are subject to subsequent revision and recall, dogmatic resolutions are, if the Council be


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 ] really ecumenical, irrevocable and valid for all future time. The Infallibilist majority would naturally accept the dogmatic proposals introduced by the Commission of Suggestions; for that Commission, which alone possessed the privilege of introducing doctrine into the Council, and of determining what amendments should be admitted, and the form which those amendments should take, consisted of the most pronounced advocates of Infallibility. And this decision by majorities was utterly alien to the traditional methods of Christendom. "For eighteen hundred years," said Döllinger, "it has been held as a principle of the Church that decrees concerning faith and doctrine should be adopted by at least moral unanimity." And this because Bishops at a Council are primarily witnesses to the faith which they and their Churches have received; secondly, judges to examine whether the conditions of universality, perpetuity, and consent are fulfilled by a given doctrine; whether it is really a universal doctrine of the whole Church, and a constituent portion of the original Deposit divinely intrusted to the Church's keeping, and therefore a doctrine which every Christian must affirm. Consequently the judicial function of the episcopate cannot exclude the past. It extends across all history.

"A Council only makes dogmatic decrees on things already universally believed in the Church, as being testified by the Scriptures and by Tradition, or which are contained, as evident and clear deductions, in the principles which have been already believed and taught. Should, for example, the Infallibility of a single individual be put in the place of the freedom from error of the whole Church, as formerly believed and taught, this would be no development nor explanation of what was hitherto implicitly believed, nor is it a deduction that follows with logical necessity, but simply


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 of eating at McDonalds, they cannot blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonalds products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonalds’ knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds’ products involve a danger that is not within the common knowledge of consumers. As discussed later, plaintiffs have failed to allege with any specificity that such a danger exists.

McDonalds has also, rightfully, pointed out that this case, the first of its kind to progress far enough along to reach the stage of a dispositive motion, could spawn thousands of similar “McLawsuits” against restaurants. Even if limited to that ilk of fare dubbed “fast food,” the potential for lawsuits is great : Americans now spend more than $110 billion on fast food each year, and on any given day in the United States, almost one in four adults visits a fast food restaurant. Eric Schlosser, Fast Food Nation 3 (2002) (hereinafter “Schlosser”). The potential for lawsuits is even greater given the numbers of persons who eat food prepared at other restaurants in addition to those serving fast food. See FDA, Food Labeling; General Requirements for Health Claims for Food, 58 FR 2478, 2516, 1993 WL 1547 (Jan. 6, 1993) (“Almost half of the American food dollar is spent on food consumed away from home, and … perhaps as much as 30 percent of the American diet is composed of foods prepared in food service operations.”). In light of these facts, the Court is cognizant of its duty “to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability.” McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d Cir.1997) (quoting Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 557, 482 N.E.2d 34 (1985)).

The interplay of these issues and forces has created public interest in this action, ranging from reports and letters to the Court to television satire. Obesity, personal liberty and public accountability affect virtually every American consumer.


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 236 the very opposite of the earlier doctrine, which thereby would be subverted."

Döllinger contended further that all theologians agree that the ecumenical character of a Council depends, among other essential conditions, upon the possession of real freedom. Real freedom does not consist in mere immunity from physical force. Fear, ambition, avarice, as effectually destroy true freedom as bodily constraint. Moreover, urged Döllinger, even if a Council be ecumenical in its vocation, it does not follow that it is also ecumenical in its procedures or in its conclusions. "It is still necessary that the authority which stands ever above every Council—the testimony of the whole Church—should come forward and decide."

This was Bellinger's final protest before the decision. A Bishop of the majority replied by prohibiting theological students in his diocese from attending Döllinger's lectures. Pius congratulated the Bishop on this action, and wished that others would follow his example; which however they declined to do. A war of pamphlets followed. Döllinger was attacked in a party newspaper as having by his recent writings placed himself outside the Catholic Church. Hötzl, a Franciscan lecturer on theology, afterwards Bishop of Augsberg, published a pamphlet entitled, "Is Döllinger a Heretic?" This was too much for the King of Bavaria. He expressed in a birthday letter the earnest hope that Döllinger might long be spared in undiminished mental and bodily powers to the service of religion and of learning. Hötzl's imprudent act awakened so many demonstrations of sympathy and approval towards Döllinger that it was thought wise to transfer Hötzl to Rome.


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138 But as for Tobacco, they do not at all like it, nor can they bear the Smell or Smoak of it.

mot detetable Crime of Polygamy, which reigns o much among the Heathens, the Greenlanders are not o much addicted to; for commonly they are contented with one Wife. There are ome, but very few, that keep two, three, or four Wives; but thee pas for Heroes, or more than ordinary Men, in that, by their Indutry, they are able to ubit o many Wives and Children. And what is remarkable, before our Arrival, there was never heard of uch a Thing as Jealouy, among thoe Wives, but they agreed very well together, though the firt Wife was reckoned  the


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 ] It was impossible, of course, that these New Regulations, involving for the minority such tremendous possibilities, should be tamely acquiesced in without a protest. The protest came, partly in the form of written appeals to the Pope, and partly in speeches in the Congregation. One of the ablest orators in the Council, the brilliant Strossmayer, being called to order by the President, uttered against the Rules the following impassioned criticism:—

As Strossmayer uttered the closing words the Council Chamber was filled with the wildest tumult, says Lord Acton, and the Session was broken up.

Written protests were sent to the Pope against the New Regulations by the minority, but no relief was given. What were they now to do? They had complained, on ground of conscience, that the freedom of the Council was impaired. This complaint affected the Council's validity. Could they reasonably continue their work within it? On the other hand, no actual Decree was threatened as yet. Was it wise to withdraw before the repulsive doctrine was introduced? The instincts of caution prevailed over bolder and more resolute lines. The minority protested, but submitted.


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the actual subject of Infallibility had not yet entered the Council for discussion, it was anxiously or eagerly debated in every mind. As far back as the beginning of the year (28th January 1870), a petition under the instigation of Archbishop Manning was sent to the Commission on Faith, entreating that the doctrine of Infallibility might be brought before the Council. This petition for a Decree on Papal Infallibility was based upon the following grounds. It was, they said, opportune and necessary, because, according to the universal and constant tradition of the Church, papal decrees of doctrine could not be reformed; because some who gloried in the name of Catholic were presuming to teach that deferential submission to papal authority was sufficient; that one might acquiesce in silence without inward mental consent, or might at any rate accord a merely provisional assent until the Church itself endorsed or modified the decree in question. This independence was, they considered, injurious and subversive of authority. Prevalent disputes made definition a positive necessity. If the Vatican Council, thus challenged, neglected to testify to Catholic Faith, the Catholic world would fall into uncertainty, and the


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Rh the Mitres. Since our Arrival, as we have informed them of the Word and Will of God, importing, that in the Beginning the Creator made one Man and one Woman, to live in Matrimony as Huband and Wife, there has been ome Reentment in the Wives, when their Hubands have had a Mind to take any other beides them; they have addreed themelves to me, and deired me to put a Stop to uch a Proceeding. Alo when I have intructed them in their Catechim, and the Chritian Doctrine, they have always put me in mind, not to forget fully to intruct their Hubands in the Duties of the Seventh Commandment.

Some Time paed, before we could learn, how the Men behaved themelves with Regard to other Men's Wives, or the Women vice verâ, till at lat we perceived them not to be over crupulous in this Matter, of which we were more fully convinced, by hearing of a certain illegal Game, ued among them; which is uch. A Number


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 212 GUARDY'S PEARL.

room, and looked a little suspiciously, I fancied, at my jewel-case, now almost empty. Finally, she said, good-night, (our rooms were on the same side of the house, but hers was at one end of the balcony, and mine at the other), and then I sent Martha away, pretending that I would do my hair myself. Twelve o’clock! It was nearly time to start; so I put up my window and gazed cautiously out. The rain had stopped a little, but it blew just as hard as ever; and, oh, dear! how slippery the balcony looked! No help for it; so I turned my gas down very low, and having lowered my bag, gathered my dress in my hand, and slid safely and almost noiselessly down. Then came a gust that nearly took my breath away, and there was a distant gleam of light in the summer-house. How could Charley be so imprudent! On any less stormy night the people at the lodge must have seen it. I am certainly a very plucky girl, for between the pitchy darkness and the wet, slippery ground, I was in a little the worst plight I ever imagined. On I plunged, however, until I got to the little bridge, and there stopped to take breath. My bag was heavy, so I deposited it on the boards, and at that instant I heard Charley's voice, so sharp and quick, that I fairly jumped.

‘Kathie, take care, for heaven’s sake! Don’t try the bridge, it’s broken in several places, and the stream has risen so——”

Bang! A furious blast of wind, a rush of swollen water; and as he snatched me away from the dangerous locality, the remains of the little bridge went floating off—my bag, my jewels, and my dresses with it, and I, like Lord Ullric, was ‘left lamenting.”

“Goodness! my bag!” I gasped; and then, as  I saw Charley's face, by the light of his lantern, I went off into a fit of laughter that nearly strangled me, as I tried not to make a noise.

“How upon earth are we going over, Charley? The gate is locked, and the stream impassable.” Alas! for the romance of the elopement, fancy Charley’s horror! “Don’t you think we're a pair of geese, dear?”

“Most unmitigated ones,” said the clear, soft voice of Marguerite, close at my elbow. In my fright I nearly tumbled into the water, and Charley was almost as bad. There she stood, her long hair wet and loosened, her pale face and gleaming eyes looking at us with a mixture of censure and kindness.

“Kathie, come home,” said she, a little severely; ‘I think you are mad to risk so much in such an utterly thoughtless, childish fashion. Mr. Blake, I hardly think such foolish children have any claim for mercy at Our King’s hands.” I don’t think I ever felt so like a fool. To be foiled in my elopement was not half so hard as to have merited the white witch’s contempt— for I love Marguerite almost as well as I do Charley. But I didn’t hang my head like a chidden child then; I scolded, and laughed, and cried, and defended Charley, and would not allow him to say that it was at all his fault.

“I only implore you not to tell aunt Frances,” said I. ‘Write for Guardy tomorrow, if you choose; but I won’t be bullied by that old lady. And then, just think of my bag and jewelry at the bottom of the river!” Marguerite’s lips quivered at the climax.

‘Kathie, darling, go home,” said Charley, at last. ‘Miss Vivian, I am thoroughly ashamed of my own conduct. Try to be as merciful to that poor child as you can. May I come back as far as the house?”

But Marguerite sent him to the lodge instead, to knock up the keeper, with a story of being locked in; and then we girls battered against the wind and rain back to our balcony. Without a word, Marguerite locked the window, turned on the gas, and throwing herself in my easy-chair, laughed a little, low laugh of contentment.

“Oh, Kathie! you naughty, naughty child! How I have been watching you every moment since last night, when I overheard you plotting with Charley in the library, and made up my mind to stop you. I would have done it earlier, but you were bent upon trying it. Yes, I followed you from the time you started, except that I let myself quietly out of the house-door, instead of the balcony. I have kept my own counsel; and you will be heartily ashamed of it in six months. Child! don’t be silly! Are you crying?”

“To be sure I am,” sobbed I, as Marguerite’s busy fingers loosened my wet cloak. ‘You're such a cold, proud girl, you don’t know what it means to love any one as I love Charley. I tell you I shall die if Guardy separates me from him.” And I stamped my feet in genuine, passionate misery. Marguerite drew me down close beside her, and kissed me twice. I looked up in surprise at the unexpected caress, and saw that her eyes were full of tears.

“So I am too cold to love, Kathie? Little girl, do you wish to listen to a story—a short one, and very commonplace. I would like to comfort you, and, perhaps, I can do so best by telling you what a sore heart I have carried this five years. Yes, five years—don’t you know I'm twenty-four, Kathie?” She did not look it, with her beautiful, pearly skin, and violet eyes; and she smiled, as I told her so.

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 ] heretical world would rejoice. Various local synods, moreover, had already passed resolutions for Papal Infallibility.

Petitions were also issued on the other side. Copies of a circular had reached them requesting the definition of Papal Infallibility. Accordingly they are constrained to address the Pope. This is not a time in which the rights of the Apostolic See are questioned by Catholics, and it is undesirable to add to the doctrines of the Council of Trent. The difficulties which the writings of the Fathers, and the genuine documents and facts of history suggest to many minds, on the subject of Infallibility, preclude the definition of this doctrine as a truth divinely revealed, until the difficulties have been removed. They implore the Pope not to impose such discussions upon them.

This was in January. Nothing was immediately done. But on the 6th of March a notice was sent to the members individually, informing them that, in response to the appeal of many Bishops, the Pope had consented to the introduction of Papal Infallibility into the Council. They were accordingly requested to send in their written remarks within ten days.

Accordingly written criticisms were sent in to the Commission on Faith. And it is to this fact that we owe a large portion of our knowledge of the actual argument employed by Infallibilists by the minority in the Council. For their criticisms were condensed and printed for distribution among the members, and copies of this have survived the Council. This is all the more important since the proceedings of the Council were nominally secret, and no official report of the speeches was ever given to the world, and the actual minutes are buried in the Vatican archives. A Jesuit


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 In terms of the pending motion by McDonalds to dismiss the complaint, these principles require the complaint to be dismissed for lack of specificity, with leave granted to replead within the limits set forth below.

Prior Proceedings

The plaintiffs commenced suit on August 22, 2002, in the State Supreme Court of New York, Bronx County. Defendants removed the action to the Southern District of New York on September 30, 2002, alleging as the basis of removal that the plaintiffs had fraudulently joined non-diverse parties in order to defeat diversity jurisdiction pursuant to 28 U.S.C. § 1332.

McDonalds filed the instant motion to dismiss plaintiffs’ complaint (the “Complaint”) on October 7, 2002. The plaintiffs cross-moved to remand and in opposition to the motion on October 25, 2002. Oral argument on both motions was held on November 20, 2002, and the motions were considered fully submitted at that time.

Facts

As befits a motion to dismiss, the following facts are drawn from the allegations in the Complaint and do not constitute findings of fact by the Court.

Parties

Ashley Pelman, a minor, and her mother and natural guardian Roberts Pelman are residents of the Bronx, New York.

Jazlen Bradley, a minor, and her father and natural guardian Israel Bradley are residents of New York, New York.

The infant plaintiffs are consumers who had purchased and consumed the defendants’ products and, as a result thereof, have become overweight and have developed diabetes, coronary heart disease, high blood pressure, elevated colestorol intake, and/or other detrimental and adverse health effects as a result of the defendants’ conduct and business practices.

Defendant McDonald’sMcDonalds [sic] Corp. is a Delaware corporation with its principal place of business at One McDonald’s Plaza, Oak Brook, Illinois. It does substantial business with outlets in the State of New York, as well as throughout the fifty states and the world.

Defendant McDonalds of New York is a New York State corporation with a registered agent office located at 80 State Street, Albany, New York. It does substantial business with outlets and/or franchises in the State of New York.

McDonalds is the owner, manager, franchisee and operator of defendants the Bruckner Boulevard and Jerome Avenue outlets. Ashley and Roberta Pelman purchased and consumed food products at the Bruckner Boulevard outlet. Jazlen and Israel Bradley purchased and consumed food products at the Jerome Avenue outlet. All products, ingredients, promotions and advertisements sold, provided, utilized, advertised and promoted by the Jerome Avenue and Bruckner Boulevard outlets were authorized by McDonalds Corp. and McDonalds of New York.

McDonalds Corp. and McDonalds of New York, through its agents, servants, and/or employees, operate both company-owned outlets and franchises, and prescribe their ingredients, qualities and quantities of the food products served, so as to insure that its food products sold in one state or location is substantially identical to food products sold elsewhere in the country.

Obesity in Young Persons and its Effects

Today there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. In 1999, an estimated 61 percent of U.S. adults were overweight or obese and 13 percent of children aged 6 to 11 years and 14 percent of adolescents


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240 German writer on the Council has had access to these, and has given extracts and accounts of them; but no complete account has ever yet appeared. Meanwhile great value must attach to the printed criticisms of the doctrine. These, as was natural, are chiefly the work of the opposition. Some one hundred and thirty-nine Bishops replied, of whom nearly one hundred were against the decree. Its advocates contented themselves with general expressions of approval. The opposition to the proposed definition was begun by the criticisms of Cardinal Rauscher.

Rauscher said that the question was not whether the instructions of the Pope should be obeyed, but whether they must be received with the faith due to God. The salvation of souls and the honour of the Council demand that the greatest caution should be exercised before imposing this upon the faith of Christian people. He confessed himself, although prepared to defend what the Council might decree, unable to solve the difficulties which would arise. To those already persuaded conviction would not be difficult. But Bishops in Austria and Germany would have a difficult time. "The subterfuges employed by not a few theologians in the case of Honorius would only expose the writers to derision." To propound such sophistries appears to him unworthy alike of the episcopal office and of the subject in question, which ought to be treated in the fear of God. Even prudence would prohibit the use of such artifices.

Bishop Ketteler, Bishop of Maintz, urged that according to the principle observed by the Fathers and sanctioned by Councils, dogmatic decrees should only be resorted to under imperative necessity. In many districts the doctrine of Papal Infallibility was almost


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 214 MY PLANETS - MARS, JUPITER, VENUS.

and I had no right to expect you would be so good to such'a horrid madcap asIam. Do, do forgive my saucy note; I’m as wicked as poor Topsey was. And don’t let aunt Frances bully me! I shall never, never call either you or Marguerite cold and hard-hearted again.” Guardy gave me a queer look.

“Pray, what has, your wise head got in it now? Has Miss Vivian been casting her spells over you? I used to call her.a white witch long ago, but she seems more like a pure, stately pearl now-a-days. And, if you have made such a discovery about my warm-hearted qualities, how in the world did you happen to arrive at the conclusion that she is not cold? Verily, she has changed since lang syne,”

I looked up through the half open door, where beyond, in the music-room, I could see Marguerite’s fair, classic profile bent over her embroidery-frame; and I made an audacious resolution.

“Guardy,” quoth I, slipping down on the floor in my favorite position, and looking very innocently up into his face, ‘I want to tell you a story. Once upon a time, there was a beau- tifal Prince, (at least he would have been a Prince if we had such things in America,) and he had a garden, of which he was very fond. He admired all the flowers there, but he took the most care of a certain ‘blush-rose, and a beautiful, stately lily. And one day he said to himself, ‘I will gather the rose and wear it on my heart; see how she smiles and blushes when I stand beside her—the lily is always the same, she is more to be admired at a distance.’ But, after it was plucked, the rose began to fade; and the Prince was smitten with sore grief when he saw it wither away and die. And the lily stretched out her hands to him, and longed to comfort him, but he was selfish in his grief, and was blind. And day by day the lily grew paler and colder, till the Prince began to think it a marble flower.”

“Kathie!” and Guardy’s angry face frightened me, but I went on faster than ever.

“So the Prince wandered away all over the world, and at last, after many years, he came back to visit his long neglected garden. And a pert, little daisy lifted up her head, and whispered in his ears, ‘See! the lily queen would suffer no hand to pluck it but yours. Place it on your breast, and learn its sweetness.’ And, behold! the scales fell from the Prince's eyes, and taking the daisy’s advice in good part— Guardy, suppose you finish the story!”

For a second there was silence; I dared not lift my eyes to Gerald King’s face. Then, imperiously,

«Kathie, are you an angel, or an impish monkey, to tear open hearts thus? Brave child!”—and, actually, my stern, proud, dig- nified Guardy, hurried from the room in as hot haste as if he had been Charley himself.

I know it was abominably mean, but I could not help peeping through the door after him. I saw him go to Marguerite’s side, and behel:l the crimson blood dye her pearly throat as lie took her unresisting hand; and then, with a more perfectly triumphant heart than I ever expect to possess again, I danced every step of the way up stairs into my own room. Positively, Charley and my own delight fled away for full five minutes, inthe overwhelming idea that I had had a share in the darling white witch’s joy.

So you see, Guardy having found his ‘Pearl,” his heart relented even more toward Charley and me. And I am to take my European tour this fall, instead of a year hence; and to prevent any more elopements, Charley will accompany us; for, as soon as the dress-makers and such bothers will, let us, Marguerite and I are going to change our names, and we shall all go across the Atlantic together—such a jolly party.

Guardy has forgiven me for my impudence, and tries his best to induce ‘Pearl” to overlock my awful breach of confidence. He has generously supplied the deficiencies of my jewel-case; and Charley and I are more happy than two such monkeys deserve to be. Good-by!

MY PLANETS—MARS, JUPITER, VENUS.

BY FRANCES HENRIETTA SHEFFIELD.

Are these my stars? the mystic planets Presiding o’er my mortal life? I well believe that Mars is one, For fate and I are still at strife. And Jupiter, the traveling planet, Homeless as Autumn leaf, and Driven by each wind of circumstance, Against an ever darkening sky. But Venus, she whose silver radiance Flings bright enchantment o’er the Heaven,

Oh! naught so mild and beautiful Can to my restless course be given. It must be Saturn, the misanthrope, Progeni of cannibals; Those outre folks we sometimes find, That man their choicest morsel call. Oh! mystic planets, though we scorn you, We shrink at your far-reaching power; We walk, encircled by your influence, To death, e’en from our natal hour,

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140 Number of married Men and Women meet together at an Aembly; where, after they have taken their fill of Feating and Reveling, they fall a Singing and Dancing, according to their own Way; and in the mean while one after another take a Trip with each other's Wife, behind a Curtain or Hangings made of Skins at one End of the Houe, where their Beds are placed, and there divert themelves. Thoe are reputed the bet and noblet tempered, who, without any Pain or Reluctancy, will lend their Friends their Wives.

But, as I oberved above, non but married People frequent thee ort of Games, which, they imagine, is not unbecoming. Epecially the Women think themelves happy, if an Angekkok, or Prophet, will honour them with his Carees: There are even ome Men o generous, that they will pay the Angekkok for it; chiefly if they themelves can get no Children; for they fancy that an 's Child will be more happy and better qualified for Buines than others. Maidens


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Rh Maidens on the contrary, and unmarried Women oberve much better the Rules of Modety and Continency; for I never aw any of them entertain any looe or lippery Converation with young Men; or hew the leat Inclination to it either in Words or Deeds. During fifteen full Years that I lived in Greenland, I did not hear of more than two or three young Women, who were gotten with Child unmarried; becaue it is reckoned the greatet of Infamies. 'Tis remarkable, that natural Decency is oberved by them; for they refrain from marrying their next Relations, even in the third Degree, taking uch Matches to be unwarrantable and quite unnatural. It is likewie reckoned uncouth an blameable, if a Lad and a Girl, that have erved and been educated in one Family, hould deire to be married together; for they look upon them as Brother and Siter.

The Ceremonies they ue in their Marriages and Weddings are as follow: When a young Man likes a Maiden, he commonly 2


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142 propoes it to their Parents and Relations on both Sides; and after he has obtained their Conent, he gets two or more old Women to fetch the Bride (and if he is a tout Fellow, he will fetch her himelf:) They go to the Place where the young Woman is, and carry her away by Force; for though he ever o much approves of the Match, yet out of Modety he mut make as if it went againt the Grain, and as if he was much ruffled at it; ele he will be blamed and get an ill Name, as if he had been a Loveick Wench. After he is brought to the Houe of the Bridegroom, he keeps for ome time at a Ditane, and its retired in ome Corner, upon the Bench with her Hair dihevelled, and covering her Face, being bahful and ahamed. In the mean while the Bridegroom ues all the Rhetorick he is Mater of, and pares no Carees to bring her to a Compliance with his ardent Wihes; and the good Girl being at length peruaded and prevailed with, yields kindly to his ravihing Embraces; and then they lie down together, and o the Wedding is over.


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 tapering from that throughout their length of four or five inches.

—A very early radish, of a rich carmine color, and while not so early as Burpee's Earliest, attains fully twice the size; the roots are of an even, regular olive shape and very fine quality. It is an excellent radish for forcing, on

account of its size and appearance and the small growth of top which it makes, enabling many to be grown in a small space.


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216

Ꭵ Ꭺ Ꭱ Ꮮ Ꭼ ANTOINETTE'S TALISMAN. I shall be content, so long as there is a pallet on which I may snatch a few hours’ rest, and light enough to refresh my toilet by.”

“The room has a glazed window, and you shall not be disturbed.”

«Meanwhile, perhaps, you will think of some method by which I can speak to the queen.”

“It is difficult, very difficult; but there are few things that Dame Tillery cannot accomplish when all her energies are set upon it. This is the room; marmosette has arisen—go in, go in; if he has left anything there, set it outside the door, and draw the bolt. I see his bed has not been touched.”

The page stepped over the threshold, saying,

I will not disturb the lady with any noise.”

“Oh! never mind her—she cannot rule here! The time was—but no matter; a good morning's  sleep to you. When the breakfast is ready you shall be informed.”

The page entered the little room assigned to him, threw himself on the pallet-bed, and burst into a low, rich gush of laughter, that was little in keeping with the promise he had made not to disturb the lady in the next room. A few minutes after Zamara came to the door. The page sprung up, drew the bolt, and gave the dwarf a glimpse of his laughing face.

“Go away!” he said, “I am here safe and well. Your lady will sleep late; she is ill—has an abominable headache. I should not wonder if she keeps her bed all day.”

Zamara left the door smiling, for he had been very anxious during the night, In the passage he met Dame Tillery.

“How has your lady rested?” she inquired. “Have you seen her this morning?”

“No; but I will inquire,” answered the dwarf.

“It is time, we must be thinking about her breakfast.”

“I fear madame will have but little appetite; she was not well last night.”

“Still we must take her orders. Yes, yes, I am coming! Was ever a house like this! Dame Tillery here, Dame Tillery there! If I could cut myself into a dozen, it would not be enough. You hear how they are calling me, marmosette. In ten minutes I will be back again—expect me.”

Zamara went at once to the door which he had just left, and, after a faint knock, put his lips to the key-hole, and whispered something to the person he heard moving inside, Then he sauntered away, waiting patiently for the reappearance of the dame. She appeared at last, breathing heavily, and flushed with the exertion she was forced to make in lifting her ponderous weight up the stairs.

“Now you will make inquiries about madame,” she said. “It is important; I have so much to accomplish before presenting myself at the chateau.”

Zamara walked softly to Madame Du Barry’s chamber and knocked at the door. A voice bade him come in, and he disappeared. Directly he came back and beckoned to the dame, who was glad enough to enter the sleeping-room of her guest. She would not have known the room in her own house, so completely was it metamorphosed. Silken hangings fell over the windows through which the light came, richly filling the room as with a warm sunset. The only table in the room had been covered with a scarlet cloth, on which golden scent-bottles, pomade-boxes, and caskets, shone in gorgeous profusion. Instead of the best sheets and blankets that her linen-closet could afford, Dame Tillery saw sheets of the finest linen peeping out from blankets of delicate lamb’s- wool, and over them was a coverlet of pale-green satin, which swept the oaken floor with a border of delicate embroidery.

In this bed, with her hair all loose, and her night-dress open at the throat, lay Madame Du Barry, with all the rouge washed from her face, and her head resting languidly on the snowy- whiteness of ber pillows. She certainly had all the appearance of an invalid. The countess held out her hand with a gentle smile.

“This is kind,” she said; “I have been so ill in the night. You are looking at these things. It is foolish, I know, but they please me—they have become necessary; so, when I travel, Zamara always has them ready. I hope you are not offended.”

“Offended! Well, I was, almost! Her majesty, I think, would not have scorned to sleep in my best room as it was.”

“Ah, dame! but she is the queen. She has everything, while I possess nothing but old memories and habits, that make commonplace things repulsive.”

“I do not know about it. Princes have slept in this room before now, and never seemed to feel a want. Well, madame, if you are so dainty, the aid of Dame Tillery can be nothing to you. I shall not take your message to the queen, remember that.”

“Ah, dame! this is unkind.”

“I think it is only prudent.”

“Well, if you really refuse, I have nothing more to say. There was a time when the most courageous woman in Versailles would have been afraid to refuse a request of mine.”

“But now it would take the bravest woman

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Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/9

 aged 12 to 19 years were overweight. In 1980, those figures for children were 7 percent for children aged 6 to 11 years and 5 percent for adolescents aged 12 to 19 years.

Obese individuals have a 50 to 100 percent increased risk of premature death from all causes. Approximately 300,000 deaths a year in the United States are currently associated with overweight and obesity. As indicated in the U.S. Surgeon General’s 2001 Report on Overweight and Obesity, “left unabated, overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.”

Obesity and overweight classification are associated with increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis.

Studies have shown that both modest and large weight gains are associated with significantly increased risk of diseases. For example, a weight gain of 11 to 18 pounds increased a person’s risk of developing type 2 diabetes to twice that of individuals who have not gained weight, while those who gain 44 pounds or more have four times the risk of coronary heart disease (nonfatal myocardial infarction and death) of 1.25 times in women and 1.6 times in men. A gain of 22 pounds in men and 44 pounds in women result in an increased coronary heart disease risk of 1.75 and 2.65, respectively.

In certain obese women, the risk of developing endometrial cancer is increased by more than six times. Overweight and obesity are also known to exacerbate many chronic conditions such as hypertension and elevated cholesterol and such individuals may also suffer from social stigmatization, discrimination and poor body image.

In 1995, the total estimated costs attributable to obesity amounted to an estimated $99 billion. In 2000, the cost of obesity was estimated to be $117 billion. Most of the costs associated with obesity arise formfrom [sic] type 2 diabetes, coronary heart disease and hypertension.

Claims

The plaintiffs allege five causes of action as members of a putative class action of minors residing in New York State who have purchased and consumed McDonalds products. Counts I and II are based on deceptive acts and practices in violation of the Consumer Protection Act, New York Gen. Bus. Law §§ 349 and 350, and the New York City Administrative CodesCode [sic], Chapter 5, 20–700 et seq. Count I alleges that McDonalds failed to adequately disclose the ingredients and/or health effects of ingesting certain of their food products with high levels of cholesterol, fat, salt and sugar; described their food as nutritious; and engaged in marketing to entice consumers to purchase “value meals” without disclosing the detrimental effects thereof. Count II focuses on marketing techniques geared toward inducing children to purchase and ingest McDonalds’ food products. Count III sounds in negligence, alleging that McDonalds acted at least negligently in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects. Count IV alleges that McDonalds failed to warn the consumers of McDonalds’ products of the ingredients, quantity, qualities and levels of cholesterol, fat, salt and sugar content and other ingredients in those products, and that a diet high in fat, salt, sugar and cholesterol could lead to obesity and health problems. Finally, Count V also sounds in negligence, alleging that McDonalds acted negligently in marketing food products that were physically and psychologically addictive.


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MARIE ANTOINETTE'S TALISMAN. 217 in Versailles to grant a request from the Countess } Da Barry.”

“But you have courage for anything.”

“Not for that. When the Queen of France selects a favorite from the people, she expects discretion—and thut she shall find with Dame Tillery.”

«But you have already introduced a stranger —that young girl.” |

“Ah! but that is another matter; the differ- ° ence here is that Madame Du Barry is not a ; stranger.”

Du Barry almost laughed at the blunt frank- ness of this speech.

“Well, well,” she said, “if you will have nothing to do with me, I cannot help it; but you have lost a rouleau of gold which I had } already counted out.”

Dame Tillery had evidently forgotten the gold, § or she might not have been in such haste to assert her determination. Her countenance } fell; her fat fingers worked nervously in the ; folds of her dress.

Well,” she said, ‘tell me what the message }

is and I will decide—everything depends on that.” A mischievous smile quivered around Du }

Barry's mouth, and mischief twinkled in her eyes.

“No,” she said, “I will not embarrass you; ¢ perhaps I shall myself go to the chateau.”

“What, you?”

“Possibly. At any rate, I will bring no one else into disrepute.’’

Dame Tillery was crestfallen enough. She had expected to be argued with and implored, but found herself utterly put aside.

“But I did not mean to be altogether un- ; accommodating. It was the slight you put upon } my room that aggravated me. There is not a} more obliging woman in the world than Dame } Tillery, if she is a little restive at times. So, if your message is a safe one os

Du Barry rose to her elbow, and with her still fine hair falling around her shoulders, drew a ponderous gold watch, flaming with pearls, from ; under her pillow. 3

“It is getting late,” she said. ‘You will ; have scarcely ttme to prepare; as for me, talking makes my head ache.”

Dame Tillery arose, feeling the poorer by a rouleau of gold. $

“Madame has had no breakfast,” she said, ; still lingering. {

“Not a morsel,” murmured Du Barry, closing | her eyes with an appearance of disgust. “I : shall not cat a morsel to-day.” ;

“But, shall I send nothing?”

‘‘On the contrary, I must have profound rest. No one but Zamara need approach me. He will understand if I want anything.”

Dame Tillery went out, feeling herself put down; but she had no time to dwell on her dis- appointment. The breakfast of that dashing page had not yet been served, and the time was fast approaching when she was to appear at the royal chateau. She hurried down to her kitchen, saw*that the stranger’s meal was in reasonable forwardness, and then gave herself up to the mysteries of a most wonderful toilet, in which she appeared an hour after, armed with her fan,

{and rustling like a forest-tree in October.

The dame joined her latest guest at the table, with his hair freshly curled, his laces spotless as gossamer, and the ribbons on his dress flut- tering airily.

“Ah! but this is magnificent!” he said, with an affected lisp. ‘Who shall say after this it is the nobility alone that understand what is

‘ befitting the presence of royalty? Under such

protection I shall be sure of success.”

Dame Tillery had found such unthought of ruccess in her last protege that she was em- boldened to test her fortune again. and, being a woman, was particularly pleased that this time her companion would be a handsome and dash- ing fellow, who would not feel abashed by anything he might see at the palace.

«You are in haste, I see,” observed the page, helping himself to the nearest dish; ‘but this omelet is delicious, and I must detain you for - another plate.”

“Take your time; take plenty of time,” an- swered the dame, charmed that he should have praised the dish she had herself prepared; ‘it will be half an hour before her majesty can be kept waiting, so there is no especial haste; still it is always well to be ready.”

The page finished his omelet, shook off a crumb of two of bread that had fallen among his ribbons, and arose.

“Pray, my good dame, glance your eyes over my person, that I may be sure that all is right,” he said, pluming himself like a bird. ‘It seems to me that this love-lock might be brought forward the fraction of an inch with good effect. Pray let me have your judgment on the matter.”

Dame Tillery took the glossy curl between her fat thumb and finger, laid it very daintily a little forward on the shoulder, and stood back with her head on one side to mark the effect.

“That is perfect,” she said, “The Duke De Richelieu’s love-lock fell just in that way when he presented us yesterday. He is a handsome

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 —This variety is of very quick growth and fine quality, being ready for use in from four to six weeks after sowing the seed. In shape it is almost entirely round, the color quite bright, and the quality very sweet and crisp.

produces very large roots, frequently reaching the size of an ordinary turnip; it

is very quick growing and resists the heat of summer well, being firm and brittle until it runs to seed. The skin and flesh are pure white, a good guarantee of its mild flavor.

—This is a very fine long, white radish, both skin and flesh being pure white; it is crisp and brittle and rapid in growth, and to my


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 mind of a much more attractive shape than the large globe radishes, which, unless pulled young, are too large for any hut the confirmed lover of radishes.

—Avery large, round, summer turnip radish, with pure white skin and flesh, which is very crisp and brittle. It grows quickly and withstands heat well. It is similar to the Golden Globe, except in color.

—This is the largest of all radishes, the roots growing eight to ten inches long and two to three inches in diameter,


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Rh over. But ometimes they take a horter Way to go to Work, which is carnally to know one another, without the Advice or Conent of the Parents. Nevertheles their Matrimony is not of o indiolvable a Nature, but that the Hubands often repudiate and put away their Wives, if either they do not uit their Humours, or ele if they are barren and do not bring forth Children (which they hold to be very ignomonious) and marry others. But if they have got Children by them, they bear a great deal with them, and keep them for Life. It is not rare to ee that a Man beats his Wife, and gives her black Eyes, for her Obtinacy and Stubbornnes ake; however they are oon reconciled and good Friends again,

2