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Nothing can be more nearly a truism than the statement that everything in the known universe is the product of some sort of evolution. At the same time, there is hardly a doctrine in the civilized world that has aroused more enthusiasm, interest, and enmity, than the doctrine of organic evolution. And yet I have found, to my great surprise, that few of us are accustomed to thinking of that doctrine itself as a product of a long process of evolution, covering more than twenty-six centuries. We are all too apt to think of the doctrine of organic evolution as beginning with Darwin and ending with Huxley and Haeckel; as a matter of fact, it began (so far as we can tell) with Thales, and shall not end so long as human beings inhabit this planet.

It is with the idea of presenting, in a condensed form, the essentials of this "evolution of evolution: that I have prepared this book. It is neither detailed nor technical; it does not assume to be a complete history of the subject under consideration. But it does give a convenient, readable account of the most important stages in that history, and at the same time a slight glimpse of the major characters who made it possible. This latter, unfortunately, is difficult for two reasons. The space of this booklet is limited, and only brief sketches


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6 can be given, where they can be given at all. But more important than that is the lack of material. No scientist has been a Shakespeare, to be written about by Goethe and Frank Harris, nor yet a Cromwell, to receive the attention of Carlyle. And yet the personality and fortunes of a scientist are just as important in judging his place in the world as are those of a poet or statesman. Without knowing that Lamarck was poor and blind we cannot properly view his efforts; without realizing that Cuvier was spoiled, wealthy, and of a "ruling class," we cannot understand his bitter contempt for an honest, capable worker who was founding one of the greatest conceptions of all human thought. And so, while we are considering the ideas that go to make up this evolution, let us remember that those ideas were worked out by men, not by erratic, thinking machines which popular magazines proclaim to the world as representations of its scientists.

C. L. F.


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, the Accolade engineer with primary responsibility for reverse engineering the interface procedures for the Genesis console, sent a memo regarding the code segment to Alan Miller, his supervisor and the current president of Accolade, in which he noted that “it is possible that some future Sega peripheral device might require it for proper initialization.”

In the second round of reverse engineering, Accolade engineers focused on the code segment identified by Lorenzen. After further study, Accolade added the code to its development manual in the form of a standard header file to be used in all games. The file contains approximately twenty to twenty-five bytes of data. Each of Acccolade’s games contains a total of 500,000 to 1,500,000 bytes. According to Accolade employees, the header file is the only portion of Sega’s code that Accolade copied into its own game programs.

In 1991, Accolade released five more games for use with the Genesis III, “Star Control”, “Hardball”, “Onslaught”, “Turrican”, and “Mike Ditka Power Football.” With the exception of “Mike Ditka Power Football”, all of those games, like “Ishido”, had originally been developed and marketed for use with other hardware systems. All contained the standard header file that included the TMSS initialization code. According to Accolade, it did not learn until after the Genesis III was released on the market in September, 1991, that in addition to enabling its software to operate on the Genesis III, the header file caused the display of the Sega Message. All of the games except “Onslaught” operate on the Genesis III console; apparently, the programmer who translated “Onslaught” for use with the Genesis system did not place the TMSS initialization code at the correct location in the program.

All of Accolade’s Genesis-compatible games are packaged in a similar fashion. The front of the box displays Accolade’s “Ballistic” trademark and states “for use with Sega Genesis and Mega Drive Systems.” The back of the box contains the following statement: “Sega and Genesis are registered trademarks of Sega Enterprises, Ltd. Game 1991. Accolade, Inc. All rights reserved. Ballistic is a trademark of Accolade, Inc. Accolade, Inc. is not associated with Sega Enterprises, Ltd. All product and corporate names are trademarks and registered trademarks of their respective owners.”

Sega filed suit against Accolade on October 31, 1991, alleging trademark infringement and false designation of origin in violation of sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1)(a), 1128(a). On November 29, 1991, Sega amended its complaint to include a claim for copyright infringement. Accolade filed a counterclaim against Sega for false designation of origin under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The parties filed cross-motions for preliminary injunctions on their respective claims.

After expedited discovery and a hearing, the district court granted Sega’s motion. Prior to the hearing, Sega introduced the declaration of Takeshi Nagashima, an employee of Sega. Nagashima stated that it was possible either to create a game program which did not contain the TMSS code but would still operate on the Genesis III, or to modify a game program so that the Sega Message would not appear when the game cartridge was inserted. Nagashima stated that he had been able to make both modifications using standard components, at a total extra cost of approximately fifty cents. At the hearing, counsel for Sega produced two game cartridges which, he represented, contained the modifications made by Nagashima, and demonstrated to the district judge that the Sega Message

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The earliest known books on natural history, and particularly on zoology, the science of animals, were those written by the ancient Greeks. We are certain that still more ancient volumes once existed, for the Greek writers commonly referred to "the ancients," very much as authors of today refer to the Greeks. But who these ancients were, where they lived, and what they wrote, we have no means of knowing; for all practical purposes the study of animal life may be considered to have originated in Greece during the seventh century before the Christian era.

Never, perhaps, has a talented people been so advantageously situated with relation to a stimulating environment as were the Greeks. All about them was a sea teeming with low and primitive forms of life, stimulating them to the observation of nature. Their earliest philosophies were philosophies of nature, of the beginnings and causes of the universe and its inhabitants. Of course, as has been pointed out by various students of philosophy, the Greeks did not follow truly scientific methods of thought; they aimed directly at a theory without stopping to search for a mass of facts to suggest and support it. Neither, for that matter, can they justly be called scientists or naturalists; rather, they were poets and phi-


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 8 losophers, and their evident failures to understand the problems which they attacked are quite to be expected. As has been said, they sought the theory before they searched for the fact, and having attained it they interpreted all facts in the light of the theory. And if that was wrong—as it very often was—the whole thing was wrong, because only the theory was studied and no one knew anything about the mistake.

But with all their superstitions and erroneous ideas, the Greeks possessed an overpowering curiosity regarding the multitudinous natural objects which they saw about them. Thales, an Ionian astronomer who lived from 624–548 B. C. was the first, so far as we know, to substitute a natural explanation of "creation" for the prehistoric myths. He believed that water was the fundamental substance from which all things come, and because of which they exist. Thus the idea of the marine origin of life, held today by many prominent biologists, is found to be extremely ancient. Of course, had Thales lived in a land-locked country instead of one surrounded by a warm, highly populated sea, his ideas might well have been different. Thus we must, at the very outset, attribute to environment as well as to intellect the reliability of an important Greek idea.

Anaximander (611–547), another astronomer, was the first important Greek evolutionist. He believed that the earth first existed in a fluid state. From its slow drying up were produced all living creatures, the first being man. These


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Kansas has a history which is common with no other State in the Union. The history of Slavery in our country is the history of successive triumphs and continued advances over the will of a majority of our people, until it entered into a hand to hand grapple with Free Labor in Kansas. Here was the battle-field of the combined forces of the “Irrepressible Conflict,” and here the question of supremacy between its opposing elements was finally settled. Slavery triumphed in every Territory where she sought to establish her dominion until she provoked, by tearing down the bulwarks of Plighted Faith, a single-handed contest with Free Labor in the settlement of Kansas, upon the principles of Popular Sovereignty.

To the people of this Territory, aided by friends in the Free States, therefore, belongs the honor of first repelling the advances of Slavery, and of forever destroying its power. Slave propagandists felt this, and hence, when the question was decided in Kansas, they turned in their wrath upon the General Government, which had been to Slavery an indulgent and fostering guardian, to take its life, whereby to rid themselves of its control.

Few have fully comprehended the awful character and extent of the desperate conflict in Kansas. Both


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 is no date in my diary which tells me exactly when we arrived in Brittany; but I shall not be far wrong if I set it down as the month of March, and, to be particular, rather late than early, in a week when there was spring in the air, and the smell of the country was like new wine to a man. I can remember well that there were many to chaff us for leaving Paris at such a season; and, so far as that goes, it was a queer sort of journey to make just when the town was full of life, and most folks were coming in from the provinces. But Sir Nicolas was hit again, and like many a one before his day, and many a one to come after, time and season were nothing when laid against a woman's pretty face. He would have gone to the other end of the world for Mme. Pauline—aye, I believe he would go now, if it were in his power.

I have seen women enough in my time,—and a man's no worse judge of a pretty girl because fortune compels him to look at her through an attic window,—but this I will say, that a finer creature than the mistress of the Château de l'Épée never drew breath. We had met her first in the Vienna express on our

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 Rh water-dwelling humans appeared as fishes in the sea, and came out upon the land only when they had so far developed that they were able to live in the air. The capsule-like case which enclosed their bodies then burst, freeing them and allowing them to reproduce their kind upon the continents. In his ideas of the origin of life Anaximander was the pioneer of "Abiogenesis," teaching that eels, frogs, and other aquatic creatures were directly produced from lifeless matter.

Anaximander's pupil, Anaximenes, departed radically from the teachings of Thales. He thought that air, not water, was the cause of all things, yet he held that in the beginning all creatures were formed from a primordial slime of earth and water. Another pupil of Anaximander, Xenophanes (576–480), made himself famous by discovering the true nature of fossils. Before his time, and indeed, for thousands of years afterward, fossils were held to be accidents, or natural growths, or creations of a devil, or of a god who delighted in puzzling his earthly children. Xenophanes. rightly interpreted them to be the remains of animals, and from this concluded that seas formerly covered what is now dry land.

Empedocles, (495–435) taught what is probably the first clearly formulated theory of evolution. He supposed that many parts of animals, such as heads, legs, necks, eyes, ears, and so on, were formed separately, and were kept apart by the mysterious forces of hate. But love of part for part finally overcame the


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 return from that business with Benjamin King,—I laugh now when I think of it,—and she and Sir Nicolas struck up a friendship at once. This was not surprising, for he had the ways which go down with women to a degree I've never seen before or since; and she—well, she was a creature who could walk straight to a man's heart, so to speak. All said and done, it isn't the schoolgirl with the pink-and-white skin, and the simper you find in story-books, that a man of the world cares twopence about, Youth? Yes, he won't turn his head away from that; nor prettiness either, so far as it goes. But it's soul and devil, light and shade, that hold him—and there never was a woman who had them like madame.

I said, when first I saw her, that she was a stranger to the thirties, and this was no wonder, for she had the face of a child. It was not until we had spent some few days in her company that I changed my opinion, and put her down as thirty-one or thirty-two. It's always difficult to read the age of a brunette; and her hair was as dark as night. Not that years made any difference to her; for she was just one of those rare creatures whose acquaintance age seems to shun. There is no greater compliment to a woman than this—that men are glad to hear she is no child. In her case, she was both child and woman, slight and graceful as a young girl should be, gay in talk as one who has not taken a downward rung on the ladder of life. And I never met a man yet who wasn't her servant ten minutes after he knew her.

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It is to be imagined how my master carried himself in an affair of this sort. He had seen madame first on the platform at Munich; he was raving about her before we got to Strasbourg; when at last the train drew up at the Gare de l'Est, he spoke to her as though he had known her all his life. I heard him promise to call upon her immediately at her apartment in the Rue de Lisbonne. He couldn't talk of any thing else for hours after.

"Indeed, and 'tis lucky entirely I am to have travelled in that same train," said he to me, directly we were alone together in the cab. "Was there ever the like to her born? She's Mme. Pauline Sainte-Claire, the sister to the artist of that name, I'd have you know. Her husband died at Brest three years ago"

"Oh," said I, for I saw how the land lay, "they always die like that."

But at this he flared up in a minute.

"If it's any insult you mean to her," cried he, "you'll go out of the cab this minute. Was there any need to remind ye that ye're a servant?"

"None at all," said I, though I could have have hit him for the word. "A servant I am; maybe an indispensable one"—and with that I looked him full in the face, and he turned as white as a sheet.

"’Tis late in the day to quarrel, isn't it?" he asked.

"You're the best judge of that, sir," said I.

After this we rode on to the hotel without a word;

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 but he went the same afternoon to leave his card in the Rue de Lisbonne, and the next night he dined there. I knew at once that this was no ordinary affair, for he had brought plenty of money in his pockets from Vienna; and when he began to go to madame's house almost as regularly as I went to the Café Rouge, I said to myself that he was tied up for the winter, at any rate. And so it proved. Christmas passed, and still found him dancing attendance. He was harder hit than ever at the end of January. The matter seemed to come to a head in March, when he began, all of a sudden, to order clothes enough to stock a tailor's shop, and to make preparations for leaving Paris.

Now, during all these weeks he had never said a word to me of the woman, or of his own intentions about her. Whether he remembered our bit of a difference at the Gare de l'Est, or whether he had something in his mind which he did hot want me to know, I never found out. And though I did my best to get an inkling of what was going on in the Rue de Lisbonne, I never succeeded. You might as well have tried to pump an East End waterworks as the concierge of. that hotel. The only servant Mme. Pauline had was a saucy bit of goods, who could roll out lies like an auctioneer. Watch the place as I did—and my eyes were rarely off it in my leisure hours—I never learned more than common-sense had told me at home. Twice a week he dined with her, or she dined with him. For the rest, they went to

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 parties upheld by the pecuniary means and moral support of their respective States, engaged in it with the most intense and inflamed spirit of partisans. Plans, deep, dark and far-reaching, were laid by the great minds of the nation, and found their execution in Kansas. Worse than civil war reigned, worse than its concomitant evils prevailed.

To fully understand the character of the Kansas conflict requires a proper acquaintance with the aggressions of Slavery in the United States upon Freedom, of which the Kansas trouble was but the outgrowth or culmination. I have, therefore, inserted a short sketch of that Institution.

The history of Kansas is a difficult one to write. Though there is an incalculable amount of material which can be gathered together, still facts were so perverted and differently represented by contemporary writers, that the searcher for truth is often lost and puzzled in his investigations. Much, too, of the history of Kansas has never been written. The designs and motives of each party, and many of their plans, can not be found on paper, all of which so essential to a complete history of Territorial struggle, must be gathered from men who are still living, and to whom they are familiar.

There is no complete and consecutive history of Kansas Territory. The books which have been written upon Kansas matters cover but a short space of time, and contain but a partial and disjointed sketches of those times. They were written in great haste for campaign documents, and hence were in many instances highly colored and inaccurate.

Most of the important documents bearing upon Kansas history are scarce and difficult to find. There is no public library or historical society in the State which has made the collection. The writer has been at the trouble and pains to make this collection himself, which he has found more difficult than the labor


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 the theatre, but always with a third party; they skated together; they were seen in the parks; yet so careful was she of her reputation that a bishop could not have found fault with her. I thought at the start that she might be trying to get his money over the card-table—but here I was right down wrong, and don't believe he staked threepence the whole winter through. It's fair to say that she led him into no other extravagances. He spent less money that quarter than he had done for years—drank less, and was better tempered.

This is how the thing went on until March; and when that month came I had given it up as a mystery. It seemed to me that he was just in love with the creature's pretty face and pretty ways, and that was all you could say about it. I concluded that he would end by marrying her, and that I should find myself compelled either to serve a mistress—which I could never do—or to begin life afresh with what capital I had made in his service. In fact, I was just looking about to see what sort of a future I could make for myself, when he burst upon me with the news that we were going into the country, and that our destination was Brittany.

"It's not the time I'd be choosing to leave Paris," said he, "but we won't be away a month, and there'll be fun when we return. Ye must know that she's a great place in Brittany, at the woods of Folgöet it is, and we're to take the night train to Châteaulin on Monday. Will I be wanting clothes, do you think?"

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I told him that he had suits enough to last him ten years, for I was never one that hungered after old coats; but he was not to be put off that way.

"’Tis true enough," said he, "yet I doubt the shape of them entirely. There's great folk to meet—the Duc de Marmontel, he's coming"

"Oh," said I, "is that the one they wouldn't have at the Jockey Club last year?"

"The same," said he, "and a rare devil for the play, they tell me. Then there's Prince Paul, the Russian; and Lord Beyton, son of the Earl of Lomond, you'll remember. Bedad! it's pleasant company altogether, though a man would do well not to finger the cards with them."

"You're right there, sir," said I, "though I don't doubt there will be cards in Brittany."

"Not at all," said he; "she'll have nothing to do with them. Her brother, the Comte de Faugère, told me so yesterday. They say that he's going for the Church, though I have my doubts. Ye must remember that she herself is the widow of an artist, and fond of gay folk. I make sure she'll amuse us finely."

There was no good arguing with him, for he was set upon it, and, to cut a long story short, we were in Brittany and at madame's château on the following Tuesday morning. I said at once that a prettier place never was; nor one with such green hills and sweeping forests. Mile after mile we drove from the station through woods which man never seemed to

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 of writing the book. In a few years this work could not have been done. Documents would have been lost, families moved away, and thus some of the most essential items in the history of Kansas become oblivious.

The history of Kansas could never be  so well as at the present time, while most of the actors in the early troubles of the Territory are still living. The author has visited those, made their acquaintance, whom he has ever found open and communicative on all subjects, and from whom he has gathered much valuable assistance.

To supply what seemed to be a great public demand has been my design in undertaking the preparation of this volume. I have had but one idea to guide me in its compilation, and that is Truth. By this I have sought to test every word and sentence. I have sought not only to avoid misrepresentation, but also another very common fault into which writers are prone to fall—exaggeration of facts; but I have labored to describe events exactly as they transpired, without underrating or over coloring them. How far I have succeeded in accomplishing this purpose is left to the impartial judgment of the public to decide.

In the prosecution of this work, I have enjoyed many advantages. Totally unconnected with the Territorial difficulties, without any political or personal preferments, my judgment has been wholly free from prejudice and partiality. I have freely consulted with men of all parties and opinions, from all of whom I have gathered much information. Books, files of papers, letters and documents of various kinds have come to me from every quarter. In this way my labors have been greatly facilitated, and I take this opportunity to make a public acknowledgement of these favors, which are the more appreciated


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 tread. There were mazy paths and leafy groves, turn where you would. The house itself was like an old shire mansion, low and gabled, with a white spire at the north end of it, and lawns smooth as billiard tables before its windows. The company, so far as names went, was beyond talk; and by far the best ornament to be found the whole house through was Mme. Pauline, who looked for all the world like a pretty schoolgirl broken out of bounds to enjoy herself. Think as I would, I could find no fair reason to quarrel with my quarters or the woman who found them for me; nevertheless I had my doubts about the journey from the start—could make nothing of it, in fact, and was the more suspicious on that account.

"What's her game?" I kept asking myself. "What is she doing down here with a company like this, when all the world is going back to Paris? If she was just in love with him, why not finish the business in town? He was willing enough."

This I said, turning the thing over and over in my mind, the very first night we came to the Château de l'Epee, which was her place.

I should tell you that they had lodged me with two or three more gentlemen's gentlemen in a little pavilion standing out in the park, about two hundred yards from the big house itself. I was never one that cared for society in a servants' hall, especially when that society was French down to the finger-tips; and when I had made sure that none of the others knew more than I did, either about Mme.

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 as I am a stranger in the State. It would be tedious to mention all who have rendered me much invaluable assistance, but I cannot forbear to name the State Auditor. Mr. Swallow, and State Librarian, Dr. Hounton, who has permitted me the use of the library, as though it were my own; Mr. Barker, Secretary of State and Mr. Clarkson, Clerk in that office, who have allowed me free access to official records; Hon. John W. Forman of Atchison, who has furnished me, among other valuable documents, a complete file of the “Squatter Sovereign”; Dr. A. Huntting of Manhattan, who sent me several valuable scrap-books; Hon. G. W. Smith of Lawrence, who furnished me a complete file of the “Herald of Freedom”; Hon. Joel Grover, of Lawrence, who supplied me with some rare documents; Col. C. K. Holliday of Topeka, who has given me many important items; Hon. J. A. Halderman of Leavenworth, through whose influence I obtained access to the Mercantile Library of that city, and the use of its excellent files of old papers; Hon. S. A. Kingman of Atchison, who has assisted me in various ways; Gov. Robinson, to whom I am much indebted, as also to Col. Montgomery, whose assistance and hospitality I have enjoyed; Hon. J. A. Wakefield who wrote out some early reminescences for me; Hon. George Hillyer who furnished me a file of the “Kansas Freeman”; Hon. John Ritchie from whom I obtained valuable official documents; S. M. McDonald and Baker of the “State Record” who have greatly assisted me; Hon. James Christian who has the most valuable library in the Territory.


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 Pauline or her party, I left them alone and went my own ways. So it came about, on the second night after we arrived at the house, that eleven o'clock struck and found me walking in the great park which surrounded the château. It was dark enough then for any thing, the cloud hanging low over the woods, and a warm south wind promising rain. But the blinds were up in most of the lower rooms, and I had not taken ten steps to cross the lawn when I solved my mystery. Mme. Pauline's guests were playing roulette.

"Halloa!" said I, standing stock still, and laughing to think how simple it was, "so this is your game, is it, my lady? You brought him here to dance on the green, eh? And he's fool enough to come up smiling, like a lamb to be sheared. I wonder if you heard that he picked up money at Vienna—it looks like it, any way."

Certainly, it did look like it, for there he was, hanging over the cloth like a boy over a rail; and throwing the money away, I did not doubt, just like a man pitching pebbles into the sea. As for the others, they were as deep in it as they could be; old Marmontel sitting with a pile of gold at his elbow, and young Lord Beyton throwing the notes about as though they were spills. Yet—this was curious—madame herself was not playing. She was sitting at the piano strumming a waltz; and though I watched her for nearly an hour, never once did I see her turn her eyes toward the table. She was acting the

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 10 baser passion, and the various sections came together to form bodies. The combinations, unfortunately, were entirely accidental, and did not always result in satisfactory creatures. One body, for example, might possess several heads and no legs; another might have an abundance of arms and legs, but be without a head. These monstrosities were unable to keep themselves alive, and so perished, leaving the world to the bodies that had come together in proper combinations. Thus Empedocles, more than two thousand years before the first zoologist framed and taught a theory of organic evolution that seemed to offer anything worth while, conceived one of the most important of evolutionary principles—that of natural selection.

But by far the most striking figure among the early Greek philosophers who gave their attention to natural history was Aristotle, (384–322). He lived more than three hundred years before the Christian era, and was a pupil of Plato and a teacher of Alexander the Great. He wrote upon a wide variety of subjects—politics, rhetoric, metaphysics, psychology, philosophy, and natural history—and published several hundred works, most of which have been lost. It is true that Aristotle's books are full of errors, and if the philosopher were to be judged by the standards of twentieth century science he would not appear very important. But it must be remembered that he was a pioneer who, by the force of his own ability created the serious study of natural history. The workers who had preceded him had dis-


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simple little girl still—and right well did she play the part.

Now, when you have looked for something really deep and surprising in a puzzle, it does not please you to find that its solution is plain enough for a schoolboy. For the matter of that, once I saw the ball spinning in the Château de l'Épée, the only thing that remained for me to know was the name of madame's partner in the deal. That she had a partner, probably the man who kept bank, was certain. They went shares, I said, in what they could win from the pigeons they had caged. Probably, too, the thing was square enough, or an old bird like Marmontel would not be throwing his money away so cheerfully. Tricks would not pay in that house of rooks. If my master walked out of the château a beggar, he would have his own luck to blame. And that he would walk out a beggar, I felt sure from the start.

I had come to this conclusion, standing in the park of the château, and smoking my pipe under the shadow of a great elm-tree on the lawn before the drawing-room windows. It was not a conclusion to put me in good spirits, or to send me to bed in a cheerful mood—and so far as that goes, I found myself presently thinking very much about it, and strolling through the ground as I did so. For one thing, you see—money to be made or money to be lost, I saw no chance of my coming into the business. If Sir Nicolas was bitten both by the woman

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 and the cloth, Heaven knew how long he would stay at the house. That he had any other danger to fear I did not then believe. The mystery had proved the cheapest affair possible; there could be nothing behind it.

It was curious, upon my life, but these words were hardly off my lips when I saw something in the grounds of the Château de l'Épée which altered in a moment my whole opinion of our situation, and set my brain itching with curiosity. My walk had carried me perhaps a mile from the house. Thinking of nothing but Mme. Pauline's prettiness and of her schemes, I looked up presently to find myself in a clearing of a wood, and almost at the door of a little pavilion built in the heart of the thicket. There were no lights in the windows of this strange little house, nor any thing to tell that any one lived in it— but all in a moment, while I was standing in the shadow of the trees, a man crossed the grass before the door, and let himself into the pavilion with a latchkey. For ten seconds at the most I saw him, and though there was nothing but a fitful play of the moonlight between the rolling clouds, I recognized him at once. He was Mme. Pauline's brother—the man who passed in Paris as the Comte de Faugère.

"Come," said I to myself, stepping back into the thicket, "what are you doing here, young man, and why don't you show yourself in the house? She gave it out that you had gone back to your seminary, or whatever you call it. How does it happen that

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 you can't show your mug in public? It's a queer state of things, any way."

Queer it appeared to be, look at it how you like. Here was a boy, who, according to madame's story, was being trained for a priest,—one whom we all thought to be in Paris,—masquerading at midnight in the woods of the château. More than that, he was not masquerading alone, for I had not watched the pavilion for ten minutes when I saw another lad, slim and rather short, and wearing a soft felt shooting hat, slip out of the shelter of the trees, and knock three times upon the door of the little building. The door was opened at once; but, although there were now two of them in the house, not a light did I see. Back and front, the place was as dark as the grave, and as mysterious. Not a sound of any thing human was to be heard. You might have passed the pavilion a hundred times and never have known that a living thing occupied it. You might have walked for a month in the park and yet have been ignorant that such a nest was a part of it. Whatever were his reasons, the Comte de Faugère had a roosting-ground which many a hunted man might have envied.

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 This hand, as the first had done, went all in favour of the two men. Mr. Rastall-Retford won five tricks in succession, and, judging from the glitter in his mild eye, was evidently going to win as many more as he possibly could. Mrs. Rastall-Retford glowered silently. There was electricity in the air.

The son of the house led a club. Eve played a card mechanically.

"Have you no clubs, Miss Hendrie?"

Eve started, and looked at her hand.

"No," she said.

Mrs. Rastall-Retford grunted suspiciously.

Not long ago, in Westport, Connecticut, U.S.A., a young man named Harold Sperry, a telephone worker, was boring a hole in the wall of a house with a view to passing a wire through it. He whistled joyously as he worked. He did not know that he had selected for purposes of perforation the exact spot where there lay, nestling in the brickwork, a large leaden water-pipe. The first intimation he had of that fact was when a jet of water suddenly knocked him fifteen feet into a rosebush.

As Harold felt then, so did Eve now, when, examining her hand once more to make certain that she had no clubs, she discovered the ace of that ilk peeping coyly out from behind the seven of spades.

Her face turned quite white. It is never pleasant to revoke at bridge, but to Eve just then it seemed a disaster beyond words. She looked across at her partner. Her imagination pictured the scene there would be ere long, unless

It happens ever now and then that the human brain shows in a crisis an unwonted flash of speed. Eve's did at this juncture. To her in her trouble there came a sudden idea. She looked round the table. Mr. Rastall-Retford, having taken the last trick, had gathered it up in the introspective manner of planning big coups, and was brooding tensely, with knit brows. His mother was frowning over her cards. She was unobserved.

She seized the opportunity. She rose from her seat, moved quickly to the side-table, and, turning her back, slipped the fatal card dexterously into the interior of a cheese sandwich.

Mrs. Rastall-Retford, absorbed, did not notice for an instant. Then she gave tongue.

"What are you doing, Miss Hendrie?"

Eve was breathing quickly.

"I—I thought that Mr. Rayner might like a sandwich."

She was at his elbow with the plate. It trembled in her hand.

"A sandwich! Kindly do not be so officious, Miss Hendrie. The idea—in the middle of a hand" Her voice died away in a resentful mumble.

Peter started. He had been allowing his thoughts to wander. He looked from the sandwich to Eve and then at the sandwich again. He was puzzled. This had the aspect of being an olive-branch—could it be? Could she be meaning? Or was it a subtle insult? Who could say? At any rate it was a sandwich, and he seized it, without prejudice.

"I hope at least you have had the sense to remember that Mr. Rayner is a vegetarian, Miss Hendrie," said Mrs. Rastall-Retford. "That is not a chicken sandwich?"

"No," said Eve; "it is not a chicken sandwich."

Peter beamed gratefully. He raised the olive branch, and bit into it with the energy of a starving man. And as he did so he caught Eve's eye.

"Miss Hendrie!" cried Mrs. Rastall-Retford.

Eve started violently.

"Miss Hendrie, will you be good enough to play? The king of clubs to beat. I can't think what's the matter with you to-night."

"I'm very sorry," said Eve, and put down the nine of spades.

Mrs. Rastall-Retford glared.

"This is absurd," she cried. "You must have the ace of clubs. If you have not got it, who has? Look through your hand again. Is it there?"

"No."

"Then where can it be?"

"Where can it be?" echoed Peter, taking another bite.

"Why—why," said Eve, crimson, "I—I—have only five cards. I ought to have six."

"Five?" said Mrs. Rastall-Retford. "Nonsense! Count again. Have you dropped it on the floor?"

Mr. Rastall-Retford stooped and looked under the table.

"It is not on the floor," he said. "I suppose it must have been missing from the pack before I dealt."

Mrs. Rastall-Retford threw down her cards and rose ponderously. It offended her vaguely that there seemed to be nobody to blame. "I shall go to bed," she said.

Peter stood before the fire and surveyed Eve as she sat on the sofa. They were alone in the room, Mr. Rastall-Retford having


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 Rh words 'I' and 'mine' constitute ignorance. What is the great end of all, you shall now learn from me. It is Soul—one in all bodies, pervading, uniform, perfect, pre-eminent over Nature, exempt from birth, growth and decay, omnipresent, made up of true knowledge, independent, unconnected with unrealities, with name, species, and the rest, in time past, present, and to come. The knowledge that this spirit, which is essentially one, is in one's own, and in all other bodies, is the wisdom of one who knows the unity of things. As one diffusive air, passing through the perforations of a flute, is distinguished as the notes of a scale, so the nature of the Great Spirit is single, though its forms be manifold, arising from the consequences of acts. When the difference of the investing form, as that of a god, or the rest, is destroyed, there is no distinction. … The whole world is but a manifestation of Vishnu, who is identical with all things, and is to be regarded by the wise, as not differing from, but as the same as themselves. I neither am going nor coming; nor is my dwelling in any one place; nor art thou, thou; nor are others, others; nor am I, I."

It is "as if he had said," writes Emerson, "All is for the soul, and the soul is Vishnu; and animals and stars are transient painting; and light is whitewash; and durations are deceptive; and form is imprisonment and heaven itself a decoy."

Emerson thus analyzes: "If speculation tends thus to a terrific unity, in which all


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 20 things are absorbed, action tends directly backwards to diversity. The first is the course of gravitation of mind; the second is the power of Nature. Nature is manifold. The unity absorbs, and melts or reduces. Nature opens and creates. These two principles reappear and interpenetrate all things, all thought; the one, the many. The one is being, the other intellect; one is necessity, the other freedom; one rest, the other motion; one power, the other distribution; one strength, the other pleasure; one consciousness, the other definition; one genius, the other talent; one earnestness, the other knowledge; one possession, the other trade; one caste, the other culture; one king, the other democracy; and, if we dare carry these generalizations a step higher, and name the last tendency of both, we might say that the end of the one is escape from organization—pure science; and the end of the other is the highest instrumentality, or use of means, or executive deity."

To Plato, Emerson pays the highest tribute: "A balanced soul was born, perceptive of the two elements. It is as easy to be greet as to be small. The reason why we do not at once believe in admirable souls, is because they are not in our experience. In actual life they are so rare as to be incredible; but, primarily, there is not only no presumption against them, but the strongest presumption in favor of their appearance. But whether voices were heard in the sky, or not; whether his mother or his father dreamed that the infant man-child was


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 written it above that this discovery altered my opinion of the Château de l'Épée and of its mistress just about as suddenly as a man's opinion could be altered. It is one thing to believe that you're asked to a house to play cards; it is another to wake up to the fact that you are the guest of queer folks who can't afford to be seen in the daylight, and whose object in lying low doesn't altogether explain itself. That the Comte de Faugère was lying low, I never had a doubt from the start of it. And yet this continued to be the puzzle—that he was at the château, while they gave it out that he was in Paris.

It was daylight that morning before I went to sleep. There were moments when I said that I would have it out with Sir Nicolas Steele before another day was passed; other moments when I remembered what a poor hand he was at holding his tongue, and resolved that I would get deeper down into it before I shared it with him. "Maybe," said I, "it doesn't concern us any more than the pump in the court yonder; maybe it concerns us very much indeed.

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In either case, his is not the head to deal with it, for he's blind set on the woman and won't listen to reason."

This thought prevailed in the end, and I went to shave him in the morning just like a man got up from a long night's sleep. I found him irritable and not over disposed to talk; and I could see that he had been losing pretty heavily the night before. In fact, he was almost dressed before he said any thing at all, and then he spoke short and almost curt.

"Is it good quarters ye have below?" he asked.

"The best," said I; "they've put us out at the little place in the park yonder."

"Ay, 'tis the picture of a house," said he, "and some very pretty company in it."

"That's so, sir," said I; "there must be a wonderful lot of money on this very landing."

"Ye speak truth," cried he; "the duke alone has enough to buy a kingdom."

"So I've been told," said I, trying my best to draw him out; "and a rare one for cards he is, they tell me."

"I'll not deny it," he exclaimed, as he took the towel from my hands; "he plays like a gentleman."

"Like a what, sir?" said I, sudden, for I couldn't keep the thing back.

"Like a gentleman," he answered, very slow and deliberately, "and it's me that should know, for I lost three hundred to him last night."

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"I'm sorry to hear that, sir," said I, "and madame not liking the play, either."

"Sure, she doesn't like it at all; but what could she do in her own house when the duke brings out his cloth, and says, 'Just one game for the luck of it?' Faith, he carries a board wherever he goes, and you might as well expect a child not to touch the jam as to keep his fingers off it. And 'tis wonderful luck he has, too. He won on manque fifteen times running last night. I've never seen the like."

"Let's hope his luck will change, sir," said I, as he put on his coat to go down stairs; "we couldn't afford many nights like that."

"Indeed, and we couldn't, and she'll not be allowing it, either. She detests the play entirely—and no wonder, with a brother that's half a Jesuit, and the lesson her husband taught her not yet forgotten. He lost a fortune at the cards in Paris, ye may know. Bedad! they say he would have played with the priest that came to anoint him."

This was all the talk we had that day, for he spent the morning riding in the woods with Mme. Pauline; and when he dressed for dinner at night he was in such a fluster to make himself fine that I could not get a word with him. As the thing stood, he could not tell me any thing which would help me to get to the bottom of the mystery in the park; and that was the matter my mind ran upon. Hour after hour I'd been thinking of it, yet not a foot further had I got; and I was just about burning with

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 curiosity when eleven o'clock at night came, and I set off through the woods to take a second look at the pavilion. This time, however, I went warily, creeping like a shadow through the trees; and once at the little house, I did not content myself with watching it from the thicket opposite, as I had done the night before; but I lay down boldly at that side of it nearest the wood, and so placed myself that I could not only see my man, but hear him. And this I did without danger. The windows of the place looked out back and front; there was a thick bush to hide my body; and a great shadow, for the moon shone bright and clear, lying half over the lawn in the clearing. I was as safe from sight as a bird in the corn; the place could not have served me better if I had planned it myself.

Half an hour, perhaps, I lay thus crouching upon the grass before I heard any sound or saw any more. But, and this just when I was thinking that I had come out on a fool's errand, there was then a low whistling in the trees, and the door of the pavilion opened to let out the Comte de Faugère. At the same moment, the lad who had met him on the previous evening sprang out from the shadows of the copse, and stood a minute with the moonlight shining brightly on his face. I say "his face," but it should be "her face." The pair had not been there ten seconds when I recognized both of them. For the new-comer was no other than Mme. Pauline dressed up in boy's clothes. And the man she came

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 to meet made no bones at all about his welcome; he took her in his arms and kissed her for five minutes together.

You may think that this discovery surprised me. I can never remember any thing in all my life which so completely knocked me over. For minutes together my brain was in a perfect whirl. Who, then, I asked myself, is the Comte de Faugère? why does his sister wear a man's clothes and meet him at twelve o'clock at night in a wood? why does he kiss her like a boy-lover kissing a schoolgirl? A hundred answers flashed upon my mind—one as impossible as the other—a hundred speculations were raised only to be put aside again. Listen as I would, I could get no help from the talk between them. For a long time nothing but stray words came to me; when at last the pair turned toward the house together, the few sentences I put together were so much Greek.

"Jean leaves to-morrow," said she, and I could see that their arms were locked together; "it will be forty-eight hours, I fear."

"What of Marmontel?" said he in answer to this.

"A week should work that," she replied; "but he is an old fool."

They walked a few more steps in silence, and then, just as they were at the door, he said;

"It was understood about the signals and the lantern."

"Of course it was—and the wine," she answered; and with this on her lips, she disappeared into the

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 pavilion with him. I heard him lock the door—and then, precisely as it was on the first night I had seen them, there was a dead silence in the woods, and every living thing seemed to have fled.

"Bigg," said I to myself, crawling at last from my hiding-place, "if ever you ran against a stone wall, this is the day. You can make as much of it as you could of a mummy. The best place for you is bed—and after that Paris."

I made up my mind to this, and, buttoning my coat round me, I ran back sharply to the château. It was all too new, too surprising for me to make head or tail of it, and I do believe that I ran all the way to the great house, with the word "signals" ringing in my ears. When at length I did stop, I was gasping for breath on the lawn before the drawing-room windows; and I saw, as I stood, that Mme. Pauline's guests were still round the roulette board. But she herself was not there,—I knew she could not be,—and as for the others, the only one who interested me was Sir Nicolas himself. It did not take me very long to learn how it had gone with him. One glance at his face told me the story. He had been losing heavily again.

For five minutes, perhaps, I watched the party, and being certain at last that nothing more was to be gained by cooling my heels on the lawn, I went up to my bit of a bedroom and lay down, dressed as I was, to think. I knew well enough that I should have little sleep that night; but it was not until I

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 began to work right through the story that I learned what a task I had set myself. For, you see, I could not get a starting-point. If the woman had asked us down there to skin us, how came it that Marmontel always kept the bank? He was not her confederate, that I was ready to swear. And how did this supposition fit in with the little box in the park and a brother who took the girl in his arms just like a soldier cuddling a housemaid? It didn't fit anyhow, I said. Look at it as you would, there was no light through it. Of one thing only was I sure—Mme. Pauline was no sister to the Comte de Faugère. Yet how did that concern our fortunes?

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As the territory of the State of Kansas is a part of the Louisiana purchase, I will first give a succinct account of the discovery, exploration and settlement of that province; of the many changes in ownership which it underwent, and the final division and organization of its broad domain into territories and states to form integral parts in the American Union.

Forty-four years after the western shores of the Atlantic had been discovered and before any settlements had been effected thereon, the first Europeans traversed the valley of the Mississippi. Ferdinand De Soto, a man of valor, fame, and fortune, headed this expedition. An intimate associate of Pizarro in the conquest of Peru, he shared in the immense ransom of the Inca. Returning to his native land, he enjoyed the admiration and honors of Spain. Charles V. appointed him governor of Cuba, and gave him a grant of Florida. His ambition inflamed by the adulations of the court, his avarice more craving by the taste of riches, he sought to surpass Cortes in glory and Pizarro in wealth by seeking a new field for fame and riches in America. With six hundred chosen men he disembarked in 1538 at Tampa Bay, in Florida, and began his memorable march through the savage wilds of the interior. After two years of wandering through swamps and brush, over ragged hills and


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 swollen torrents, harrassed on every hand by enraged savages, but with hopes inspired, amid all embarrassments, by the ignis fatuus of early adventurers—the El Dorado of North America—he stood upon the banks of the Mississippi, the discoverer of the most majestic river in the world. Crossing this, where the southern boundary of Tennessee touches it, as though it had been a swamped rain, he pressed his vain search for the “gold region,” westward through cane-brakes, marshes and tangled forests, perplexed by the murmurings of his followers, until he reached the head waters of the Arkansas, where Fort Gibson was afterwards located, within one hundred miles of the southern boundary of Kansas. Looking out upon the broad expanse of prairie before him, he saw no prospect of the “land of hope.” Disappointed and disheartened, the little band of adventurers returned to the banks of the Mississippi. There, on the wet lands of the bottoms, surrounded by weeds and cane-brakes, with no one to administer to the sympathies and wants of the sick, De Soto died of fever. “Thus perished,” says Bancroft, “Ferdinand De Soto, the governor of Cuba, the successful associate of Pizarro. His miserable end was the more observed from the greatness of his former prosperity. His soldiers pronounced his eulogy by grieving for his loss; the priests chanted over his body the first requiems that were ever heard on the waters of the Mississippi. To conceal his death, his body was wrapped in a mantle, and, in the stillness of midnight, was sunk in the middle of the stream. The discoverer of the Mississippi slept beneath its waters. He had crossed a large part of the continent in search of gold, and found nothing so remarkable as a burial place.” His followers reduced in numbers to three hundred and eleven, after long wanderings, reached a place of safety in Mexico.


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 More than a century elapsed before another European visits the Mississippi valley. The French had settled along the St. Lawrence, and around the Great Lakes. Missionaries with pious zeal were planting the Cross among the Indians and subduing the barbarians unto Christ by the gentleness of Love. The most earnest and successful among these was Father Marquette!

The Indians frequently spoke of a great river at the West, flowing south which they called Mississippy, as Marquette wrote it. It was a matter of debate among the French, what course this river pursued to the ocean. Some contended that it continued to flow directly south, and emptied into the Gulf of Mexico; others were of the opinion that it deflected either to the east and discharged itself into the Atlantic, or west, and poured its waters into the Gulf of California.

To settle this difficult question and carry the Gospel to the heathen, Father Marquette determined to make a tour of exploration. Encouraged by the governor of Canada, who gave him M. Joliet as a companion, and five other Frenchmen, he embarked on the 13th of May, 1673, in two bark canoes at Michilimackinac. Reaching Green Bay, the solicitous aborigines besought him with tears to abandon so hazardous an undertaking, portraying to him the frightful dangers of the Meschasebe (Mississippi.) “I thanked them for their good advice,” says Marquette, “but I told them I could not follow it, since the salvation of souls was at stake, for which I would be overjoyed to give my life.” Ascending Fox River and crossing the portage, they gave themselves to the current of the Wisconsin, and were soon carried into the waters of the Mississippi.

Borne upon this mighty stream, they continued to descend, occasionally halting at Indian villages, smoking the calumet of peace and narrating the story of the Cross, until they reached the mouth of the Arkansas. Here, satisfied that the Mississippi continues its course to the Gulf of


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 Mexico, and their provisions well nigh exhausted, they resolved to return.

Father Marquette was the first to observe the muddy waters of the Peketanoni, as he called the Missouri. He represents it as being a very large river, flowing from the north-west, “on which are prodigous nations who use wooden canoes.” From the Indians he gathered the idea that by following this river to its head waters, and crossing a narrow portage, another stream might be found, flowing down through a large lake to the “Red Sea,” or Gulf of California. In the map accompanying his journal he lays down the general course of the Missouri for one hundred miles pretty accurately.

The account of La Hontan's travels through the West, which he dates Feb. 28, 1689, would give him the honor of being the discoverer and explorer of the Missouri, were it entitled to credibility. But it contains so many palpable contradictions and errors that historians refuse to acknowledge its claims.

The next explorer of the Mississippi was the celebrated. Though of noble family, on being educated a Jesuit, he lost his patrimony. Obtaining an honorable discharge from this order, he came to Canada in 1667 a penniless, yet ambitious adventurer. While the single hearted Marquette was floating upon the western waters, he was engaged in the fur traffic, revolving plans for future achievements. To discover a short route to China across the western continent was his favorite scheme. When he learned Marquette's discoveries, he conceived the design for the future greatness of France and his own glory of colonizing the valley of the Mississippi and connecting Canada and the Gulf of Mexico by a chain of fortifications. What a mighty undertaking for a poor, unknown wanderer! But this idea that sprung from the warm and fertile brain of La Salle ultimately electrified all France. He lays his plans


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 before the Governor of Canada who recommends him to the favor of the King. Repairing to the courts of France, he obtains the sanction and encouragement of his sovereign. He returns to Canada and applies himself, like an enthusiast and a philosopher, a skilful financier and an importunate mumper, to the prosecution of his plans. He raises money without security, builds a ship sixty tons burthen, and crosses the waters of Lake Michigan to Green Bay. Returning his barge, laden with furs, to Niagara for the benefit of his creditors, he with others coasts the lake in canoes to the mouth of St. Joseph River where he erects a fort. Ascending this stream he crosses the portage and glides down the Kankakee into the Illinois. He descends with the current of this smooth flowing river as far as Peoria and erects another fort. His means are now exhausted and he is compelled to return, while Henepin, his associate, sets out in a northwest direction and explores the Mississippi for some distance above the mouth of the Wisconsin.

On the 4th of January, 1682, La Salle enters upon his second expedition. Descending the river Chicago, across the portage, down the Illinois, by the 6th of February he glides upon the waters of the Mississippi; yielding to its swift current, occasionally halting to smoke the calumet with the natives, and erecting Fort Prudhomme, on Chicasaw Bluffs, in three months he explores it to its mouth. Here, with due solemnity and in a formal manner, he takes possession of the country, by the name of Louisiana, in behalf of the King of France. Erecting a column with a cross, he has inscribed upon it Louis the Great, King of France and Navarre, reigns the 9th of April, 1682. He now resolves to return to Canada, collect a number of emigrants, convey them down the Mississippi and plant a colony at its mouth. His journey back was long delayed by illness, and this plan was never executed. He determines to accomplish his object in a different way. Placing his faithful associate Tonty, in command of Fort St. Louis at Peoria, which by


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 this time was completed, on the 13th of December, 1683, he repairs to France. In 1684, with four vessels and two hundred and eighty-four emigrants, he sets sail from the shores of his native land for the Gulf of Mexico. Early in the following year, he reaches his point of destination. After vainly searching for the mouths of the Mississippi, he anchors his vessels in the Bay of Matagorda and disembarks his little colony upon the sandy shore. But here he experiences sad disasters. One by one, he loses all his vessels by shipwreck and desertion. After making scanty provisions for his colony, he explores the country. He searches for the mouths of the Mississippi and for his lost ship, Belle, but with ill success. He now pursues in ecstacy golden visions for the mines of St. Barbe, but in a few months, he returns in rags and sadness to his dejected colony—diminished by fatal fevers and savage massacres. Cut off from France by the loss of his ships, misfortune constantly attending him, he resolves to seek assistance in Canada. Having made arrangements for his colony during his absence, he sets out for the northern lakes with a company of twenty men. He had not proceeded far when a mutiny sprang up among his followers, and he was the victim of assassination. His little colony which had cost him so much labor, solicitude and misfortune, was soon visited by the Spaniards and all of its members killed, save five, who were spared on account of their youth, and a few men who escaped to the woods and were never heard of more.

During the next five years, France is too much engaged in war to turn her attention to her distant possessions. After the peace of Ryswick, another colony was sent out under her auspices. Early in 1699, Lemoine De Iberville, a distinguished Canadian officer, established a little settlement near the Bay of Baloxi. While exploring one of the mouths of the Mississippi he obtained Tonty's letter to La Salle from the wandering savages. It will be recollected that this was the individual whom La Salle had left in


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 charge of Fort St. Louis on his going to France the last time. Tonty supposing that La Salle had returned with his intended colony to the mouth of the Mississippi, had descended, to visit him. But not being able to find him, Tonty had left this letter in the hands of the natives who had carefully preserved it for thirteen years.

The little daughter of France, thus cast upon the burning sands of the Mexican Gulf, struggled through a miserable infancy. The men, many of whom were of a reckless character, instead of pursuing the slow, but sure way of acquiring a subsistence, wealth and independence, by opening farms and tilling the fertile soil and raising stock, spent their time in roving over the country in search of game and gold mines. Whenever game failed, or supplies from France, the colony was in a suffering condition.

In 1712, France being plunged again in war was unable to lend assistance to her “infant child” across the waters. For the benefit of the colony, she sells the monopoly of Louisiana to Crozat, a merchant prince, who hoped by discovering and working mines, and by opening a traffic with Mexico, to make a wonderful speculation. But in this he was doomed to disappointment. In 1717, having lost his fortune—though he had labored more for his own aggrandizement than the good of the colony—he surrenders his privileges.

But other speculators were not intimidated by the failure of Crozat. Louisiana passed the same year into the hands of the western company. This corporation had absolute sovereignty over Louisiana, except homage and fealty to the King of France. The association was headed by John Law, a notorious gambler and swindler, and was organized just on the eve of his financial glory with a charter for twenty-seven years.


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The company began their work by laboring to increase the settlement of Louisiana. A wonderful interest was awakened in France by artfully circulating reports of the gold and silver mines in the Mississippi valley. The stock of the company was soon in great demand. A company of eight hundred emigrants is shipped over and the city of New Orleans is laid out. Great expectations are awakened both in France and Louisiana of the future greatness and grandeur of the province, and for the first time the pulsations of life begin to throb vigorously in the little colony.

But the prosperity was not real. It was awakened by the financial flush, springing from the erroneous and ephemeral money theory of John Law. The financial gloom having spread over France, it extends to the colony, and the bright prospect vanishes. Louisiana is in but little better condition than when she passed into the hands of the company. The members of the company held their charter until 1733, when, wearied with their burden, surrendered it.

Though the company did not accomplish for the colony all that it and others expected, still it is entitled to credit for what it did. Under its auspices the colony had been increased to 5,000 white and 2,000 black, inhabitants—the latter having been shipped from Africa and sold for one hundred and seventy-six dollars apiece on three years credit. The vast territory had been divided into nine districts


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 and settlements; factories and store-houses had been established in each; the attention of the colonists had been drawn from the unprofitable search for gold, to the importance of agriculture; the culture of rice, indigo and tobacco had been introduced, and figs and oranges were growing in luxuriant abundance; communication and commerce had been opened with the Indies and Canada; in short, the colony had been brought into a condition of self support.

On the reversion of Louisiana to the King, he began the chastisement of the Indians, who had been instigated to deeds of violence by the English and Spaniards. One powerful tribe, the Natches, was utterly annihilated, and the Chicasaws severely punished.

The territory claimed by the French under the name of Louisiana was immense. Beginning to the east, midway between Pensacola and Mobile, the boundary ran north to the head waters of the Ohio. Every rivulet whose waters ran to the Mississippi was claimed by the French. “Half a mile,” says Bancroft, “from the head of the southern branch of the Savannah River is a spring, which flows to the Mississippi; strangers who drank of it would say that they had tasted of French waters.” Beginning at the south-west on the Rio del Norte and ascending on a line of the ridge that divides it from the Red River, the boundary extended along this ridge to the Gulf of California. On the north-west, the boundary line between the Hudson Bay Company was not fixed. On the north-east it was bounded by Canada.

It must not be supposed that while the French were thus exploring, taking possession of, and settling so vast a country, that the Spaniards and English were wholly ignorant of, or indifferent to, their operations. Both nations had watched the French with a jealous eye and envied their success. The Spaniards had at one time destroyed a settlement at the Isle of Dauphine and frequently harassed the colonists. From the discovery of the continent, England had


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 claimed all territory from sea to sea. In 1684 and 1726 she had purchased all the land laying north-west of the Ohio from the Six Nations, who claimed to hold it. As early as 1724 English settlers were found along the Ohio River.—Upon these grounds England based a claim to this country, and the Governor of Virginia had repeatedly called the attention of the legislators to the importance of protecting their claim against the encroachments of the French.

It was not until 1748 that anything was done by the English to openly assert their right to the territory. It was then resolved that the most effectual way to secure their possessions was to settle them. The Ohio company was organized with a grant of a half a million acres of land and several other companies of a similar nature were formed. These sent out emigrants, established settlements, opened farms, built store-houses and began a traffic with the Indians.

The Governor of Canada learning the movements of the British, caused inscriptions to be made upon plates of lead, setting forth the fact that the territory belonged to France, and had them placed on stakes in different parts of the disputed possessions. But this effort to stay the encroachment of the English proving futile, an irregular warfare was begun between the French settlers and their allies—the Indians—on the one side, and the English settlers on the other, until finally one neighborhood of the latter was utterly destroyed.

Meanwhile the Governor of Canada constructs military roads and forts in different parts of the territory. The executive of Virginia learning of the sad destruction of an English settlement on the banks of the Ohio by the French and their other warlike demonstrations, despatched a messenger (Geo. Washington) to the commander of one of the French forts to inquire what business he had upon his Majesty's domains and require his removal from the territory. This messenger having met with a decided refusal by the French General to comply with these requisitions,


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 an open rupture soon took place between the two nations. The war which followed—commonly known as the French war—I have not space to treat of in detail. It lasted for nine years, first in America, then in Europe, and was terminated, in 1763, by the treaty of Paris.

This treaty ceded from France to England Canada, Nova Scotia and the Island of Cape Breton, with their dependencies; fixed the boundary between the dominions of the two nations by a line drawn along the middle of the river Mississippi from its source to the river Iberville, and from thence by a line drawn along the middle of this river and the lakes Maurepas and Ponchartrain, to the sea, and withdrew all claim on the part of France to any territory east of the Mississippi. The vast territory, thus acquired by England west of the Alleghanies, was divided out among the colonies along the Atlantic coasts and held by them by charters from their mother country until after their independence.

Spain, who had stood aloof from the conflict of the two nations until she had seen the vast territory in America wrested from France, alarmed at the increasing greatness of Britain and the danger of losing her own possessions across the Atlantic, in 1762, determined to make common cause with France, and declared war against England. But by this step she suffered what she sought to avert; for before another year had passed, she, with France, was compelled to treat for peace by relinquishing Florida in favor of England.

But France undervaluing her remnant of Louisiana, ceded it, in 1764, to Spain as a compensation for her loss of Florida. Thus the vast and fertile territory included in Canada and Louisiana, which had awakened dazzling hopes in France by the greatness of its prospects, and which had cost her so much solicitude, expense and misfortune, was swept from her by the fortune of war.

This cession of Louisiana to Spain was not made known


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 to the inhabitants for a time; but when the rumor reached them, it awakened a general dissatisfaction among the colonists; for they were intensely French, and nothing could be more odious to them than Spanish rule. When Spain did take possession of Louisiana, it was in such a way as to exasperate the excited inhabitants, and the policy she pursued, was one not calculated to win their affection. It was years before the machinery of government was fully established and worked with smoothness.

In 1776, the thirteen colonies east of the Alleghanies declared their separation from England, and by a long and hard struggle maintained it. After the establishment of the general government, they ceded their respective claims to territory in the west, to the sovereignty of the United States. This broad expanse of country lying between the Alleghany mountains and the Mississippi river, once a part of Louisiana, was divided up into districts by Congress, which were organized under territorial government, and, in a constitutional way, successively admitted into the Union as states with the names they now bear.

In this great American revolution, which resulted in the independence of the English colonies, Spain employed about the same tactics as in the former war, but with better success. France had repeatedly solicited her to join the cause of the colonies against Britain, but fearing the effects of their independence upon her adjoining possessions, she observed a strict neutrality, hoping to be able to accomplish more by diplomacy than by a resort to arms. She offered herself as a mediator between the belligerent powers, to which France acceded, but England peremptorily refused to acknowledge the independence of her subjects across the ocean, whereupon Spain joined (1779) heartily in the strife, doing much mischief to England by her maritime strength. The colony of Louisiana, rejoicing at the opportunity of revenging her suffering during the last war, raised fourteen thousand men, under the command of Galvez, and took


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 possession of the East and the West Floridas. By the treaty of peace which England was compelled to make this time, all the territory east of the Mississippi, below the thirty-first degree of latitude, was ceded to Spain.

The treaty between the United States and Spain in, 1795, conceded to the former the free navigation of the Mississippi, the right of deposit at New Orleans, and fixed the boundary of the two dominions east of the Mississippi on the thirty-first degree of north latitude, deviating slightly from it towards the Atlantic.

From 1793 to 1797 efforts were made by the agents of France and Spain to prevail upon the people of the south-western territory to separate from the United States, and, with Louisiana in connection with these two powers, form an independent government west of the Alleghany mountains. Genet, the Minister of the French Republic, first fermented the idea, and even went so far as to enlist the sympathies and co-operation of the western people. But his government discovering his acts and recalling him, the United States establishing a strong military force in the West, squelched the movement. Garondolet, the governor of Louisiana, sought to attain the same object. He refused to give up certain posts that fell to the United States by the treaty, and embarrassed the navigation of the Mississippi. He sent secret agents into Ohio and Kentucky and sought to bribe over commanders of military posts to his interests; but finding them incorruptible, his project failed.

Therefore, when the United States ascertained through her Minister at Paris, Mr. Livingston, that the whole of Louisiana had been re-troceded to France by the secret treaty of Ildefonso (1800), as might be expected, was greatly alarmed. While impotent Spain had held dominion there, she had experienced great danger; still more was she imperilled when ambitious and powerful France established herself in so strong and commanding position.

The sagacious Jefferson, then President, comprehending the peril of his country's situation, like a wise and skillful statesman, by one of the most celebrated and strategic strokes of American diplomacy,


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 did not appear when the cartridges were inserted into a Genesis III console. Sega offered to make the cartridges available for inspection by Accolade’s counsel, but declined to let Accolade’s software engineers examine the cartridges or to reveal the manner in which the cartridges had been modified. The district court concluded that the TMSS code was not functional and that Accolade could not assert a functionality defense to Sega’s claim of trademark infringement.

With respect to Sega’s copyright claim, the district court rejected Accolade’s contention that intermediate copying of computer object code does not constitute infringement under the Copyright Act. It found that Accolade had disassembled Sega’s code for a commercial purpose, and that Sega had likely lost sales of its games as a result of Accolade’s copying. The court further found that there were alternatives to disassembly that Accolade could have used in order to study the functional requirements for Genesis compatibility. Accordingly, it also rejected Accolade’s fair use defense to Sega’s copyright infringement claim.

Based on its conclusion that Sega is likely to succeed on the merits of its claims for copyright and trademark infringement, on April 3, 1992, the district court enjoined Accolade from: (1) disassembling Sega’s copyrighted code; (2) using or modifying Sega’s copyrighted code; (3) developing, manufacturing, distributing, or selling Genesis-compatible games that were created in whole or in part by means that included disassembly; and (4) manufacturing, distributing, or selling any Genesis-compatible game that prompts the Sega Message. On April 9, 1992, in response to a request from Sega, the district court modified the preliminary injunction order to require the recall of Accolade’s infringing games within ten business days.

On April 14, 1992, Accolade filed a motion in the district court for a stay of the preliminary injunction pending appeal. When the district court failed to rule on the motion for a stay by April 21, ten business days after the April 9 recall order, Accolade filed a motion for an emergency stay in this court pursuant to 9th Cir.R. 27-3, together with its notice of appeal. On April 23, we stayed the April 9 recall order. The April 3 preliminary injunction order remained in effect until August 28, when we ordered it dissolved and announced that this opinion would follow.

In order to obtain a preliminary injunction, the movant must demonstrate “either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1174 (9th Cir.1989). We may reverse the district court’s grant of a preliminary injunction to Sega if the district court abused its discretion, made an error of law, or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Ctr. v. Scott, 869 F.2d 1306, 1309 (9th Cir.1989); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir.1987), ''cert. denied'', 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).

Accolade raises four arguments in support of its position that disassembly of the object code in a copyrighted computer program does not constitute copyright infringement. First, it maintains that intermediate copying does not infringe the exclusive rights granted to copyright owners in section 106 of the Copyright Act unless the end product of the copying is substantially similar to the copyrighted work. Second, it argues that disassembly of object code in order to gain an understanding of the ideas and functional concepts embodied in the code is lawful under section 102(b) of the Act, which exempts ideas and functional concepts from copyright protection. Third, it suggests that disassembly is authorized by section 117 of the Act, which entitles the lawful owner of a copy of a computer program to load the program into a computer. Finally, Accolade contends

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 steered the ship of State free of danger. Though the future seemed lowering, the present he augured propitious.—France suffering from a long and disastrous war with England and an impoverished treasury, was in no condition to resist a determined overture from the United States for the possession of Louisiana. Jefferson, accordingly, dispatched instructions to the United States Minister at Paris, to represent to the First Consul that the occupation of New Orleans by France would endanger the friendly relations between the two nations, and, perhaps, even oblige the United States to make common cause with England; as the possession of this city by the former, by giving her the command of the Mississippi, the only outlet to the produce of the Western States, and also the Gulf of Mexico, so important to American commerce, would render it almost certain that the conflicting interests of the two nations would lead to an open rupture. Mr. Livingston, the Minister, was instructed to negotiate not only for the free navigation of the Mississippi, but for the acquisition of New Orleans and the territory itself.

Bonaparte, on receiving these representations from the Minister of the United States, summoned a conference with two of his ministers who had resided in Louisiana, and opened it with these words: “I am fully sensible of the value of Louisiana, and it is my wish to repair the error of the French diplomatists, who abandoned it in 1763. I have scarcely recovered it, before I run the risk of losing it; but, if I am obliged to give it up, it shall hereafter cost more to those who force me to part with it, than to those to whom I yield it. The English have despoiled France of all her northern possessions, and now they covet those of the south. I am determined that they shall not have the Mississippi. Although Louisiana is but a trifle compared with their vast possessions in other parts of the globe, yet, judging from the vexation which they have manifested on seeing it return to the power of France, I am certain that their first object will be to gain possession of it. They will probably commence war in that quarter. They have twenty vessels in the Gulf of Mexico, and affairs in St. Domingo are daily getting worse since the


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 death of Le Clerc. The conquest of Louisiana might be easily made, and I have not a moment to lose in putting it out of their reach. I am not sure but that they have already begun the attack upon it. Such a measure would be in accordance with their habits, and in their place, I should not wait. I am inclined in order to deprive them of all prospects of ever possessing it, to cede it to the United States. Indeed, I cannot say I cede it, for I hardly possess it; and if I wait but a short time, my enemies will leave me nothing but an empty title to grant to the republic I wish to conciliate. They only ask for the city of Louisiana, but I consider the whole colony lost; and I believe in the hands of this rising power, it will be more useful to the political, and even the commercial interest of France, than if I should attempt to retain it.”

After inquiring from both for their opinions on the subject and debating the matter for a long time, he dismissed the conference without making known his determination. On the following day, calling his chief minister, he said: “The season for deliberation is over; I have determined to renounce not only New Orleans, but the whole colony. * * * I commission you, therefore, to negotiate this affair with the envoys of the United States. Do not wait for the arrival of Mr. Monroe; but go this very day and confer with Mr. Livingston. Remember, however, I want ample funds for carrying on the war, and I do not want to commence it by levying new taxes. For the last century France and Spain have incurred great expenses in the improvement of Louisiana, for which her trade has never indemnified us. Large sums have been advanced to different companies which have never returned to the treasury. It is fair that I should require payment for these. Were I to regulate my demands by the importance of this territory to the United States, they would be unbounded; but, being obliged to part with it, I shall be moderate in my terms. Still remember, I must have fifty millions of francs and will not consent to take less. I would rather make some desperate effort to preserve this fine country.”

After some considerable correspondence between the ministers


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 of the two republics, and quibbling about the price, the purchase was effected by the United States for sixteen million dollars, four millions of which was to be paid to American merchants to indemnify them for losses from French privateers. The treaty was signed on the 3d of May, 1803, and ratified by Congress on the twentieth of the following October; the most essential provisions of which, bearing upon our subject, are here inscribed:

“.—Whereas, by the article the third of the treaty concluded at St. Ildefonso, the 9th Vendimiaire, an 9, (October 1, 1800,) between the First Consul of the French Republic and his Catholic Majesty, it is agreed as follows: His Catholic Majesty promises and engages on his part to retrocede to the French republic, six months after the full and entire execution of the conditions and stipulations herein to his royal highness, the Duke of Parma, the colony or province of Louisiana, with the same extent it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties entered into between Spain and other States; And, Whereas, in pursuance of the treaty, and especially the third article, the French Republic has an incontestable title to the domain and possession of said territory: The First Consul of the French Republic, desiring to give to the United States a strong proof of his friendship, doth hereby cede to the United States, in the name of the French Republic, forever, and in full sovereignty, the said territory and all its appurtenances, as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above mentioned treaty concluded with his Catholic Majesty. “. The inhabitants of the ceded territory shall be incorporated into the Union of the United States, and admitted, as soon as possible, to all the rights, advantages and immunities of the citizens of the United States; and, in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they prefer.”

Immediately after the accession of Louisiana, the President dispatched Generals Wilkinson and Claiborne to take possession of it in behalf of the United States. On their arrival at


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 New Orleans the star-spangled banner supplanted the tri-colored flag of France. By an act of Congress the same year, it was divided into two unequal parts: the one extending from the thirty-third degree of latitude to the Gulf of Mexico, under the name of the Territory of Orleans; the other embraced the remaining portion of the cession, and was called the District of Louisiana.

The following year the Territory of Orleans passed under the second grade of government. In those days there were two distinct conditions which organized territory could occupy. In the first they were governed by a governor, judges and secretary, appointed by the President; in the second, besides these officers, they had a council appointed by the President and Senate of the United States, and a House of Representatives, chosen and elected by the people. In 1811 the Territory of Orleans having complied with the necessary requisitions, was constituted a State in the Federal Union, under the name of Louisiana. The Territory of Louisiana was under the jurisdiction of the Governor and judges of Indiana Territory the first year, but in 1805 was admitted to the first grade of government; in 1811 to the second, under the name of Missouri, and in 1820 it was made one of the United States of America.

The narrow skirt of coast along the Gulf of Mexico, below the thirty-first degree of latitude, was ceded to the United States by Spain in 1818, and was annexed to the States immediately above it.

The territories of Texas, Arkansas, Iowa and Minnesota were in turn next organized, formed, and, in the usual way, admitted to the dignity, rights and privileges of independent States.

In 1854, by an act of Congress, the territories of Kansas and Nebraska were organized, a detailed account of which I will give in a subsequent chapter. Before I enter upon this branch of my subject, I desire to disclose the' gathering of the storm that burst upon the virgin soil of Kansas; but which, by discreet council, strong arms and brave hearts, was turned back to vent its fury on the nation.


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 were the things that were in my mind the whole night through, and what sleep I got did not come to me until the sun was streaming through the windows and the birds in the park were singing fit to split your ears. I had made up my mind then that the business was beyond me, and that I could only watch and wait and make use of what I had seen when the opportunity came. As for telling my master, the idea was farther from my mind than ever. When I went to his room at eight o'clock, I did my best to look like a man who is thinking of nothing but his breakfast, and who will think of nothing after that but his dinner.

"Good-morning, sir," said I. "Are you ready for me now?"

"The devil a bit!" said he, sitting up in bed and looking very pale; "’tis like a boiled owl I feel."

"You made a night of it, then?" said I.

"Indeed and we did, and I lost fifteen hundred."

"You did, sir?"

"’Tis truth I speak. Fifteen hundred last night and three hundred the night before!"

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"That's a heavy bill for two days in the country, sir."

"Faith, too heavy for me. And if ye'd bring me a brandy-and-soda, I'd be the better for it. I've to ride with madame this morning."

I brought him the spirit, and when he had drunk it he seemed more himself.

"Hildebrand," said he, getting up suddenly off the bed, "’tis a beautiful air to breathe, but too strong for me. I think we'd do better in Paris."

"I'm sure of it, sir," said I, glad to hear him talk like that.

"But better or worse, I'll be staying a while yet," said he, after a minute; "there's business that keeps me, and, bedad! 'tis pleasant business too."

I knew what he meant, and there was no need to talk to me in this way. The business that kept him at the château was madame's pretty face. He followed it everywhere, riding with her in the morning, taking tea with her in the arbor by the lake in the afternoon, turning over her music at night, looking into her eyes whenever they met as if he could have eaten her. And all the time she was the wife of another man—and more than that, was as deep down in roguery as any scoundrel out of Newgate. I write that she was deep down in roguery, but that is to get ahead in my story. You want to know, naturally, how I found that out, and I will tell you in a few words. It was the second day after I had seen the strange thing in the woods—a day when I was beginning to say that

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 drifted silently away in the wake of his mother. Suddenly Eve began to laugh helplessly.

He shook his head at her.

"This is considerably sharper than a serpent's tooth," he said. "You should be fawning gratefully upon me, not laughing. Do you suppose King Charles laughed at my ancestor when he ate the despatches? However, for the first time since I have been in this house I feel as if I had had a square meal."

Eve became suddenly serious. The smile left her face.

"Mr. Rayner, please don't think I'm ungrateful. I couldn't help laughing, but I can't tell you how grateful I am. You don't know what it would have been like if she had found out that I had revoked. I did it once before, and she kept on about it for days and days. It was awful." She shivered. "I think you must be right, and my nerves are going."

He nodded.

"So are you—to-morrow, by the first train. I wonder how soon we can get married. Do you know anything about special licences?"

She looked at him curiously.

"You're very obstinate," she said.

"Firm," he corrected. "Firm. Could you pack to-night, do you think, and be ready for that ten-fifty to-morrow morning?"

She began to trace an intricate pattern on the floor with the point of her shoe.

"I can't imagine why you are fond of me!" she said. "I've been very horrid to you."

"Nonsense. You've been all that's sweet and womanly."

"And I want to tell you why," she went on. "Your—your sister"

"Ah, I thought as much!"

"She—she saw that you seemed to be getting fond of me, and she

"She would!"

"Said some rather horrid things that—hurt," said Eve, in a low voice.

Peter crossed over to where she sat, and took her hand.

"Don't you worry about her," he said. "She's not a bad sort really, but about once every six months she needs a brotherly talking-to, or she gets above herself. One is about due during the next few days."

He stroked her hand.

"Fasting," he said, thoughtfully, "clears and stimulates the brain. I fancy I shall be able to think out some rather special things to say to her this time."

Vol. xlii—3


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 whatever was the mystery of the château de l'Épée, I should never unravel it. I had spent the morning brushing up my master's clothes; but in the afternoon I carried a message down to the village, and as I was returning through the park I chanced to pass at the back of the little arbor by the lake. Sir Nicolas was sitting there with Mme. Pauline, but instead of making love to her as usual, he was watching her spin a little ball in a basin. This seemed to me such a funny thing that I stopped a minute to watch; and observing that no one was about, I crept quite up to the place presently, and got a better view of what she was doing. I found then that what I had taken to be a basin was nothing but a bit of a roulette board, and that madame was showing him how well she could keep bank.

"Look," she said, and her eyes were as bright as diamonds when she spoke, "I will spin any number you like. Choose one yourself, and try me."

He named the number twelve, and she set the ball rolling. When it stopped, I knew by his exclamation that she had succeeded.

"Faith, it's like a miracle!" cried he. "Was it here that you practised it?"

"Indeed no! I learned it when I used to be tailleur for my husband. They played almost every day then, and I spun the ball so often that I found out at last how to make it go into any hole I pleased. What a fortune I could win if I were dishonest!"

With this she drew quite close to him, and I saw

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