The North American review. / Volume 131, Issue 285, miscellaneous front pages
RA03-RA04
NORTH AMERICAN REVIEW.
AUGUST, 1880.
Air. PAGU
I. RUINED CITIES OF CENTRAL AMERICA. By the EDITOR. 89
II. THE LAW OF NEWSPAPER LIBEL. By JOHN PROFFATT. 109
III. NULLITY OF THE EMANCIPATION EDICT. By RICHARD
H. DANA . . . . . . . . . 128
IV. THE CENSUS LAwS. By CHARLES F. JOHNSON. . 135
V. PRINCIPLES OF TAXATION. By Professor SIMON NEW
COMB. . . . . . . 142
VI. PRINCE BISMARCK, as a Friend of America and as a
Statesman. Part II. By MoRITz BUSCH . . . 157
VIL RECENT LITERATURE. I. Cowper. II. The English
Poets. III. Vignettes in Rhyme, and other Verses.
IV. The Poems of Richard Henry Stoddard. V.
Songs of the Springtides. By CHARLES T. CONODON. 177
TILE Editor disclaims responsibility for the opinions
of contributors, whether their~ articles are signed or
anonymous.
The Editor
The Editor
Ruined Cities of Central America
89-109
NORTH AMERICAN REVIEW.
No. CCLXXXV.
AUGUST, 1880.
RUINED CITIES OF CENTRAL AMERICA.
WE have always thought it strange that, while the sources of
the Nile or the exact topography of the north or south pole has
excited wide and unwearied interest, the past of an American race
which has left imperishable monuments of its vigor should, even
among ourselves, have been viewed with comparative indifference.
The story of the Spanish rule in America is familiarly known to
all men. Even in England every schoolboy knows who impris-.
oned Montezuma and who strangled Atahualpa. But how many
Americans of our day have any adequate conception of the stately
edifices of monumental Mitla, or of Palenque, with its magnificent
palace, its terraces and temples, its pyramids and sculptured orna-
ments? How many, indeed, have any knowledge whatever of the
innumerable splendid relics which, having defied the havoc of time,
still crowd the entire nucleus of New Spain, and speak to us so elo-
quently of a noble culture, reaching back far beyond the conquest.
Yet it might have been expected that every American who takes
an interest in the history of this continent, or even in the history
of the human race, would be curious to know who reared the stately
structures which, in importance, far surpass any found in the land
of Montezuma. More, no doubt, would be known to us of a ter-
ritory so full of interest and so close at hand, but for the untimely
end of the distinguished traveler John L. Stephens, the lax manner
in which the work has been since conducted, and the consequent
VOL. CXXXI.NO. 285. 7
90 THE NORTH AMERICAN REVIEW.
ebb in popular interest. It would, however, be unjust to criticise
with severity a work which demands more ample means and sup-
port than have hitherto been accorded to any of the numerous indi-
viduals who have purposed the exploration of these mysterious
regions. But we are happy that it should now be in our power to
signalize the departure of an expedition to Central America which
it is hoped will, through the united efforts of a munificent gentle-
man and two powerful governments, not only win the good will
and support of the local authorities, but also have at its disposal
the necessary funds for the proper conduct of such an enterprise.
The expedition will have for its object a systematic investiga-
tion of the so-called ruined cities and other remains of ancient
civilization in Central America and Mexico. It is dispatched under
the joint auspices of the Governments of the United States and
France. The expense will be jointly defrayed by Mr. Pierre Loril-
lard, of New York, the original promoter of the undertaking, and
by the French Government. The expedition is under the charge
of M. ID~sir6 Charnay. It is thoroughly equipped, and comprises
an efficient staff. The means are provided not only of photograph-
ing bas-reliefs and hieroglyphic inscriptions, but of making careful
casts of them by the process of M. Lotin de LavaL Copies of
these casts will first be presented to the Smithsonian Institution at
Washington, and to the French Governmentthe latter collection
to be permanently preserved in the Trocad6ro of Paris. The col-
lection and preservation of these casts will be one of the most dis-
tinctive and valuable features of the present enterprise, offering, as
they will, to students of all countries, an ample field for investiga-
tion, and possibly the materials requisite for a solution of the lin-
guistic problem. The exploring party will visit Mount Alban, Mit-
la, Palenque, and other great centers of ancient civilization. Its
route will lie through Gaxaca, Tehuantepec, and Guatemala, termi-
nating in the peninsula of Yucatan, where the ground is to a great
extent fresh. Among the untamable Mayas and other warlike tribes
where it is only possible to travel safely in armed force, the party
will be able to secure a guard one hundred strong. From an ex-
pedition which is favored by such varied advantages, it is hardly
unreasonable to expect many valuable and interesting accessions
to our knowledge of the ancient and contemporary races of Central
America.
Although the idea of equipping such an expedition has for
many years been entertained by Mr. Lorillard, yet not only was
RUINED CITIES OF CENTRAL ANERI CA. 91
its execution originated independently on both sides of the At-
lanticboth in France and in Americabut two similar though
separate enterprises were actually, as often happens, taking form
simultaneously. Indeed, it was only while actively engaged in
organizing the American party that the present writer became
aware of the existence of another Richmond in the field, and it
augurs well for the success of the undertaking that he encountered
no serious difficulty in reconciling and amalgamating what would
otherwise have developed into two rival schemes.
As now constituted, the mission bears an international character,
though, in fairness to France, we must state that the predominance
of American interests has been fully recognized by her. She has
gracefully recognized the conspicuous generosity of Mr. Loril-
lard by permanently associating his name with the proposed col-
lection at Paris; and, among other privileges accorded to America,
we may be excused for referring to an official letter of agreement
by which the French Minister concedes to us the privilege of laying
before the readers of this Review the earliest accounts from the
pen of the explorer, as he at brief intervals reports the progress of
the expedition.
While, however, the scheme has thus in a limited sense a pecu-
liar relation to the United States, it has an equal interest and value
for the curious in all parts of the world. The vexed question of
origin attracts at once the philosopher and the ethnologist, the theo-
logian and the Darwinian. The historian sees looming through the
mist of tradition and pictured hieroglyphics the life of powerful
nations. The artist or architect stands mute before the sculptured
evidence of marvelous skill and taste, of grand powers of architec-
tural design and engineering resource, in a race of semi-barbarians.
And all marvel how nations which have left such noble proofs of
their vigor, and which, without the immediate directing influence of
any foreign civilization, passed through every stage of social econ-
omy, from that of tribal savagery to a golden age of culture and
wealth, should have finally perished and vanished utterly from the
worlds knowledge as though by enchantment. It is not astonish-
ing that the only memorials of their existencethe only links con-
necting them with the human familyshould exercise a strange
moral influence. We believe M. Charnay, the chief of the present
expedition, to be thoroughly imbued with the spirit in which alone
this subject should be approached. His achievements, as a practical
Americanist, are already known to the world of science. He brings
92 THE NORTH AMERICAN REVIEW.
to his task the experience and reflection so rare, and, in the present
instance, so essential to success. Apart from the intimate knowledge
of Mexico which he has gained during two previous journeys, he
has also traveled widely in the East and in Australasia, and has
made a special and comparative study of Javanese antiquities. M.
Charnay is the author of two works relating to Mexicoone an enter-
taining book of travel, the other a singularly valuable contribution
on the subject of the antiquities. In the authorship of the latter
work, Cit6s et Ruines Am6ricaines (Paris, 1863), he was asso-
ciated with the famous architect, M. Viollet-le-Duc. It is especial-
ly remarkable for its great folio album of magnificent photographs.
In a traveler of such experience and observation we have every
hope that the expedition will possess, what is so vital to its success,
an able, enthusiastic, and responsible leader.
Whatever may have been the other causes which combined to
prevent any systematic explorations of the present nature, the prin-
cipal one may no doubt be found in the isolated position of the
country and its distance from the worlds great thoroughfares. It
is curious to observe to what an extent we owe what little knowl-
edge we possess, even of the antiquities, to men who were first at-
tracted to the spot by schemes for the formation of new commercial
highways. At the time of the conquest another and most potent
reason against systematic exploration lay in the wealthy and allur-
ing kingdom of the neighboring Aztecs, and hither flocked the
restless and intrepid spirits of Castile to luxuriate amid the delights
of a New World, and to return after a few years laden with the
treasures of America.
It is difficult, if not impossible, to conceive the shock which
must have been produced on the Continent of Europe by the dis-
covery of America. All the marvels of Eastern fable pale before
the vision of a New World emerging like a mirage from the Western
seas, peopled by strange races, glorious in the richness of its tropi-
cal vegetation, its forests teeming with curious animal forms, its
mines reputed to contain inexhaustible stores of gold and gems.
The bounds of human empire had suddenly been widened, and the
worlds compass was increased by an unknown quantity. Soon the
American dependencies of the Castilian crown alone embraced a
territory almost as large as Europe. From the equator northward
and southward, far into the temperate zone, Spanish rule was ex-,
tended. Thence came gold and silver to be coined in all the mints
and curiously wrought in all the jewelers shops of Europe and
RUINED CITIES OF CENTRAL A2IIERICA. 93
Asia. Soon the cultivation of indigenous and exotic plants, with
the enforced labor of slaves, was found to be not an inferior source
of wealth, and from the Spanish dominions in America were exported
tobacco, chocolate, indigo, sugar, coffee; nor in this enumeration of
their sources of wealth must we omit their exports of hides, cochi-
neal, and quinquina.
Truly this was a land of milk and honey, where, if one would
believe some of the chroniclers of the day, the buildings were more
sumptuotis than the palace of Aladdin, and the very fountains more
wonderful than the golden water of Parizade. The lust of gold
was the supreme passion of all classes, and, while all efforts were
bent on the spoliation and oppression of an ingenious and diligent
population, men~s minds were turned aside from any serious atten-
tion to the relics of a race that had already flourished and decayed.
Small wonder, indeed, that the Spanish Viceroy, who, leaving be-
hind him the curses of Mexico, entered Madrid with a long train of
gilded coaches and of sumpter-horses, trapped and shod with silver,
spared himself the pains of such laborious inquiries. But, although
we hear of no investigations on the spot, the New World offered to
the thinkers of the day no small field for speculation, and, where
knowledge failed, fancy was substitutedto what purpose can best
be understood after a perusal of Mr. Bancrofts learned chapter on
this subject in his Native Races of the Pacific States. For illus-
trations of the spirit in which the problems of the New World were
discussed, we need not seek beyond the pages of that great work.
Of the innumerable questions to which the discovery of America
gave rise, the most difficult to answer, perhaps, was that regarding
the origin of the newly discovered races. Not so thought the theo-
logian, who was content to look upon the aborigines as straggling
members of the Hebrew stock, whose ancestors had found their way
thitherit did not much matter howfrom the primal abode of
man in Asia Minor. He saw in the discovery only another evidence
of the truth of Holy Writ. Were not these Indians the lost tribes of
Israel? In this easy manner was the question settled, then; but in
later times it has again cropped up, to receive answers as diverse as
as they are often ridiculous. The theory of an Asiatic immigration
obviously was suggested by a certain resemblance between the prod-
ucts of plastic art on the opposite shores of the Pacific, and by the
close proximity in the north of the two continents. But, as Fried-
rich MUller and others have pointed out, the supposed influence of
Asia must have shown itself conspicuously in matters of every-day
94 THE NORTH AMERICAN REVIEW.
lifein the simpler industries, in a knowledge of materials, in the
common possession of various plants and animals. But in all these
circumstances the respective civilizations of America. and of China
and Japan are wholly different. If, however, the theory of an Asi-
atic immigration across the Pacific is to be put aside as untenable,
what can be said in favor of the theories which connect the red-
man with the Mongolian or Samoyed, the Cymric or Gallic Celts,
the Polynesian or the Iberian Basque?
The study of language has led to some singular misconcep-
tions. The famous Abb6 Brasseur de Bourbourg, a profound but ec-
centric student of American antiquities, discovered what he thought
unmistakable affinities between the Maya and Quiche languages
and Greek, Latin, French, English, German, and other languages.
These languages, indeed, he regards as derivatives from the Maya-
Quiche. But to understand this topsy-turvy doctrine presupposes
a knowledge of the Abb6s origin theory. At first his belief was
that civilization began in the Occident instead of in the Orient, as
has always been supposed. In support of this opinion he cited as
his principal authority a Nahua manuscript, which he entitles
Codex Chimalpopoca, and which purports to be a history of the
kingdoms of Caihuacan and Mexico. Subsequently, however, he
sacrificed the theory over which he had spent so much time and
labor. The Codex began to have for him a new meaning. In an
allegorical sense it referred to the mighty cataclysm which sub-
merged the cradle of civilization. From this time Brasseur became
a convert to the Atlantis theory, believing that the American Con-
tinent originally occupied the Gulf of Mexico and Caribbean Sea,
extending so far across the Atlantic as to have possibly included
the Canaries.. But at a remote period this continent was ingulfed
by a tremendous convulsion of nature. The continuity of the
Americas was destroyed by the submersion which included in its
area Yucatan, Honduras, and Guatemala. A subsequent upheaval
of the continent was, however, sufficient to restore this portion of
the surface. Such is an outline of Brasseurs theory; and, entirely
apart from his wild conjectures and still wilder arguments, it is
worthy of observation that science has in recent times gone to
show that a vast extent of dry land formerly existed between
America and Europe. The judgment passed by Mr. Bancroft on
the Abb6s speculations is eminently just; he says that, in perusing
Brasseurs Quatre Lettres, the reader is continually harassed
by long, rambling digressionsliterary no-thoroughfares, as it
RUINED CITIES OF CENTRAL AMERICA. 95
wereinto which he is beguiled in the hope of coming out some-
where, only to find himself more hopelessly lost than ever; for any
mythological evidence the Pantheons of Pha~nicia, Egypt, Hindos-
tan, Greece, and Rome are probed to their most obscure depths;
comparative philology is as accommodating to the theorist as ever,
which is saying a great deal; the opinions of geologists, who never
dreamed of an Atlantis theory, are quoted to show that the Ameri-
can Continent formerly extended into the Atlantic in the manner
supposed. It is certainly wise, even were Brasseurs original docu-
ments obtainable and intelligible, to reject his double meaning
as au hallucination, and to regard his first rendering of the Codex
as more reliable, if indeed any reliance can be placed upon his
labors.
The earlier theories furnish many instances of ingenious hy-
potheses and naive credulity. To those whose sole desire was to
make the history of man in America conform to revelation, Noahs
ark presented itself as a convenient cleus ex mac/dna. Lescarbot
fails to see why Noah should have experienced any difficulty in
reaching America, whenhis reason is remarkable Solomons
ships made voyages lasting three years. Another opinion is, that
the sons of Noah reached America by land; while Orrio, in order to
show that one human pair was equal to the task of populating the Old
World and the New, assures us that one woman can in two hun-
dred and ten years become the ancestor of one million six hundred
and forty-seven thousand and eighty-six persons. In support of a
derivation from Noah, we are constantly referred to the tradition
of a foreign origin and the native flood-myths. According to Lord
Kingsborough, who is a willing believer in Scriptural analogies,
the Mexican tradition of the deluge bears unequivocal marks of
having been derived from a Hebrew source. But there is little
reason to doubt that such of these traditions as are not wholly
spurious are in the most essential parts improved by the Spanish
chroniclers and priests, who were not unaccustomed to draw upon
their imaginations for their facts. As a sequel to the flood-myths
we come upon traditions of the building of a tower of refuge, and
this has led some writers to identify the Americans with certain
of the builders of Babel, who were scattered over the earth after
the confusion of tongues. Indeed, there is no limit to the fancy of
the chroniclers. Fuerites, the chronicler of Guatemala, gives an
interesting account of the fabled descent of the Toltecs the
builders of many of the finest structures of Central Americafrom
96 THE NORTH AMERICAN RE VIEW
the house of Israel. These amusing stories and speculations have
their counterpart in the more or less frivolous theories which are
put forward in later times without the excuse of being warped by
a religious purpose. The Celtic theory is supported upon charac-
teristic grounds. It is based upon the idea that our old friend the
Welsh prince Madoc, son of Owen Gwynedd, established his colony
in Mexico, and the proof of this startling assertion is threefold.
First, the Mexicans believed that their ancestors came from a
beautiful country afar off, inhabited by white people; secondly,
they adored the cross; and, thirdly, several Welsh names are found
in Mexico. In further corroboration various stories are told which
are supposed to point to existing traces of the Welsh colony. A
story of this kind, appearing in the Gentlemans Magazine for
1740, is told by the Rev. Morgan Jones, and illustrates the heavy
drafts that have so frequently been made on public credulity.
Along with five companions, the reverend gentleman was taken
prisoner by the Tuscarora tribe. Being about to be killed, his life
was saved by the accident of a soliloquy in his native tongue. The
Indians were able to converse freely in Welsh, and Mr. Jones
remained among them for four months, and did preach to them
in the same language three times a week. Again, in 1801, a cer-
tain Lieutenant Roberts met an Indian chief at Washington who
spoke Welsh as fluently as if he had been born and brought up in
the vicinity of Snowdon. This Indian said this was the language
spoken by his tribe, the Asguaws, who preserved the tradition of
an origin from beyond sea, and conformed to a law which forbade
the acquisition by their children of any other speech till after
twelve years of age. Several instances of a similar character are
cited in support of the pretensions of the Scotch and Irish to be the
progenitors of the Americans, and all one can say is that these
claims are just as strong as those, for instance, of the Hellenes and
Pelasgians.
But all these theories of the origin of the American races from
an Israelitish stock, or from a Kymric or a Gaelic, may be safely
dismissed as the fruits of misguided enthusiasm and perverted in-
genuity. There remain, then, three hypotheses, each of which has
its strenuous advocates, namely: First, that the American races are
autochthonic, and this was held by Agassiz, in accordance with his
doctrine of multiple centers of creation; second, that they are of
one blood with the races inhabiting the Eastern Continent, from
whom they were separated by the subsidence of the intervening
RUINED CITIES OF CENTRAL AMERICA. 97
land; third, that they represent a migration from Asia via Behring
Strait or across the Pacific in lower latitudes. Either of the first
two hypotheses, could it be proved, would harmonize many appar-
ently conflicting circumstances connected with Mexican civiliza-
tion. At the same time it would give to that civilization the pe-
culiar interest which must attach to an independent development,
presenting a curious and suggestive parallel to that with which we
are familiar. True, there are striking resemblances between the
architectural styles of America and of several Old World countries,
and slight, but seemingly real, though in fact fortuitous, points of
affinity in language, while a consensus of traditions shows an abo-
riginal knowledge of certain countries beyond the sea inhabited by
white-faces. But this is not overwhelming evidence against
either the Altantis or the autochthonic theory, and is as nothing
indeed compared with the proof that can be adduce~1 against any of
the other theories. On the other hand, as has been suggested, the
strangeness of the implied connection between the Old World and
the New disappears if we admit the possibilityno very unlikely
contingencyof stray vessels having found their way at various
times to these distant shores. To this slight admixture, of for-
eign elements we might not unreasonably attribute certain striking
points of identity existing between the artistic forms of the East-
ern and the Western Continent, and which could hardly have had a
separate origin in both. They are but few in number, and chief
among them are to be named the sphinx-like statues at the base of
the pyramid at Izamal, and the representation, on pottery, of ele-
phants equipped for war purposes.
It is difficult to say whether we may expect much new light to
be thrown on this phase of the subject from future investigation;
but we can rest assured that a nearer approach will be made to the
truth on the acquisition of fuller and clearer knowledge. Until
comparatively recent years, in the absence of any well-authenticated
account of the remains of Mexican civilization, there was a disposi-
tion to regard as apocryphal the glowing descriptions of Cortes and
the Spanish chroniclers. Dr. Robertson, the historian, lays it down
as a certain principle that America was not peopled by any nation
of the ancient world which had made considerable progress in civ-
ilization. In other words, the civilization of America began with
the Spanish conquest! In saying this, Dr. Robinson is only repeat-
ing the commonly accepted opinion of his time; and it may be
pleaded in excuse of such an opinion that the ruined monuments of
98 THE NORTH AffERICAN REVIEW.
Central America, which impress us so vividly as the signs of a by-
gone prosperity and civilization, were then unknown. The extent
and power of that civilization we have had some means of estimating,
but no satisfactory conclusion has yet been arrived at regarding its
age. It is remarked by Mr. Hubert H. Bancroft that the ten-
dency of modem research is to prove the great antiquity of Ameri-
can civilization as well as of the American people; and, if either was
drawn from a foreign source, it was at a time probably so remote as
to antedate all Old World culture now existing, and to prevent any
light being thrown on the offspring by a study of the parent stock.
This is a curious commentary on the certain principle of the dis-
tinguished author of The History of America. Yet there are
many, again, who would join issue with Mr. Bancroft on the vexed
questions he so ably raises, and on which we have so many and
diverse opinions recorded by explorers within the past century.
It is, indeed, only within this recent period that we hear of any
notable efforts to elucidate the subject of the antiquities. The ex-
istence of some of the more important ruins was first discovered in
1750, when a party of Spaniards, traveling in Chiapas, stumbled
upon the so-called Casas de Piedras, subsequently named Palenque,
after the neighboring village. It was not till 1786 that the King of
Spain dispatched the expedition of which Captain Del Rio took
charge. To Rios report was added a commentary by Dr. Paul Felix,
in which the people were derived from the Egyptians. This docu-
ment, after being neglected or withheld by the Government, fell
into English hands after the revolution, and an English version was
published in 1822. This, the first account of the antiquities given
to Europe, failed to awaken public interest, partly, no doubt, be-
cause the whole narrative was too novel and startling, too full of
gorgeous and vivid tints, to be at once accepted with general cre-
dence. Meantime Charles IV of Spain had sent out another expedi-
tion, under Captain Dupaix, who was aided bya secretary, a draughts-
man, and a detachment of dragoons. The expedition lasted over
three seasons, from 1805 to 1807. The drawings and MSS. went
out of sight at the time of the revolution, and, some time after, were
almost accidentally discovered in the Cabinet of Natural History in
Mexico. Twenty-eight years after the date of the expedition, in
183435, Dupaixs work saw the light in the shape of four costly
volumes. Then followed Lord Kingsboroughs still more expensive
work, which, as regards its material, is little more than a rehash of
Dupaix, and in respect of its opinions is a storehouse of analogies
RUINED CITIES OF CENTRAL AMERICA. 99
in support of the Hebrew theory. Colonel Galendo was the oniy
other practical investigator in the field up to the time of Waldecks
expedition, which lasted over two years, and the funds for which
were provided by an association in Mexico. All previous work,
however, was far surpassed in excellence by that of Stephens and
Catherwood, the accurate, lively narrative of the former being in
every way worthy of the remarkable drawings of the latter. Dur-
ing their two visits to the country, they accomplished, by their indi-
vidual efforts, infinitely more than any of the previous expeditions,
bringing to our knowledge upward of forty ruined cities, besides
making the most painstaking examination of Copan, Quiche, Pa-
lenque, and ITxmal. The region embracing Yucatan, Guatemala,
and Nicaragua has also been ably treated by Mr. E. G. Squier, and
in the same territory, at Uxmal and Chichen Itza, Waldeck has
been carefully supplemented by the labors of M. D6sir6 Charnay.
In our own time we find the number both of theoretical and practi-
cal workers increased so largely that we can do no more than name
a few such, as Dr. Scherzer, Dr. Boyle, Rosny, Dr. Bernonitti,
Stephens Salisbury, Jr., and Larrouza, whose important work in
five volumes was published in Mexico, 187579. Last, but of the
first importance, we will name Mr. Hubert H. Bancrofts careful
wQrk, which is an admirable cyclop~edia of the whole subject.
One of the distinctive features of Mexican architecture is the
pyramidal form of the buildings or their substructures. On this
account, chiefly, an attempt has been made to trace a connection
between America and Egypt, in civilization if not in race; but, as
Fergusson points out, the two kinds of pyramids are widely dif-
ferent. The towering structure of Mexico, as a matter of fact, is
not a pyramid at all in the conventional sense. It is distinguished
by the fact that it almost invariably forms the basis of some super-
structure. It is, indeed, little more than an arrangement of gradu-
ally diminishing terraces; where this is not the case the pyramid is
a truncated mound, intended, it is generally thought, as a place of
sacrifice. Most of the ruined towns have such mounds, but the
great pyramid at Izamal is peculiar in consisting of two pyramidal
piles of masonry, one on the top of the other, the base of the whole
measuring no less than eight hundred and twenty feet on each side,
and the first platform six hundred and fifty feet. The pyramidal
form is also finely seen in the Casa del Gobernador at Uxmal, which
is described as, of all the structures of the kind, the most stately
in form and proportions. Here three successive terraces form the
100 THE NORTH AMERICAN REVIEW.
base which holds aloft the grand ornate building, and add to its
look of spacious magnificence. The sculptured ornament at lJxmal
is of a special character. It resembles arabesque in its general
appearance, but is richly diversified, the parts being wrought into
a sort of sculptured mosaic, having possibly a symbolical mean-
ing. According to Stephens, the carved work is equal to the finest
of the Egyptian. It would be impossible, he says, with the best in-
struments of modern times, to cut stone more perfectly. And yet,
as far as is known, the ancient sculptor was ignorant of the existence
of iron, and had to rely in the formation of his tools upon chaystone
or flint. Add to this the difficulty of quarrying large masses of
stone, conveying them long distances through a rough country, and
of raising them to great altitudes, and the construction of these vast
edifices seems truly marvelous. But it is not our present intention
to discuss at length the subject of Mexican civilization, aware as
we are that matters of the greatest interest would arrest the atten-
tion at every step. We must leave the antiquities to the future
consideration of M. Charnay.
Yet, for the benefit of readers who may be unacquainted with
the results of antiquarian research in Yucatan and the neighboring
states of Mexico and Central America, we will venture upon a
rapid sketch of the ruins of Uxmal, and also note a few of the
principal objects of interest to be found at Palenque.
The site of Uxmal is in the northwestern portion of Yucatan,
about latitude 200 25 north, and longitude 890 45~ west. It is as
yet impossible to determine with any approach to certainty the ends
which its ruined edifices were designed to serve, but it is at least
highly probable that they were originally palaces, temples, council-
halls, and courts of justice; possibly some of them may even have
been monasteries or community-houses in which the ascetics of a
religion analogous to that of Buddha lived in common. But this
is a problem which can be solved, if at all, only by a thorough ex-
ploration of the fast-crumbling ruins, and patient discussion of the
results by competent archa~ologists.
The buildings at JITxmal have received from the people names
supposed to express the character of their original occupancy.
Thus we have the House of the Governor, that of the Nuns, that
of the Dwarf, and so forth. Or they bear names founded on some
peculiarity of their ornamentation or architecture, as the House
of the Old Woman, so called on account of a stone figure of an
old woman found on the ground in front of it; or the House of
RUINED CITIES OF CENTRAL AffERICA. 101
the Pigeons, the meaning of which is explained below. The Gov-
ernor s House (Casa del Gobernador) is thirty feet in height, has a
frontage of three hundred and twenty-two feet, with a depth of
thirty-nine feet, and stands upon three great terraces. It is built
entirely of stone. Below the cornice, which extends around the
entire building, the front, rear, and lateral elevations are plain; but
all above is one solid mass of rich, complicated, and elaborately
sculptured ornaments forming a sort of arabesque. In the front
are eleven doorways reaching nearly to the cornice, each surmounted
with imposing decorations, but the central doorway is distinguished
from all the others by the elaborateness of its ornamentation, as
also by the fact that above it are sculptured characters evidently
hieroglyphic.
The rear elevation has no doorways, windows, or openings of
any kind. The ornamentation above the cornice is less elaborate
than on the front. The two ends also are less ornate, but each has
one doorway. The roof is flat, and was originally covered with
cement; it is now overgrown with a luxuriant vegetation.
The internal plan of all the buildings is essentially the same;
that of the Casa del Gobernador is as follows: First, a wall extend-
ing from end to end divides the interior into two narrow halls,
which are again subdivided by walls, running from front to rear,
into a number of separate chambers. Each front chamber com-
municates with the one back of it, by a doorway through the cen-
tral walL The three terraces on which this great building rests are
of artificial construction, and were supported by substantial walls
of stone. The lowest terrace is three feet high, fifteen feet broad,
and five hundred and seventy-five feet long; the second twenty
feet high, two hundred and fifty feet wide, and five hundred and
forty feet in length; the third, nineteen feet high, thirty feet broad,
and three hundred and sixty feet in length.
On the platform of the second terrace is another remarkable
building, the Casa de las Tortugas, or House of the Turtles, so
called on account of the row of tortoises sculptured on the cornice.
It is ninety-four feet in front and thirty-four feet deep. Like the
principal building of its group, its exterior decoration is restricted
to the portion above the cornice, but it differs from the Casa del
Gobernador in that its ornamentation is extremely chaste and simple.
This striking monument of the architectural genius of a vanished
people is unfortunately little better now than a mass of ruins.
At no great distance from the House of the Turtles stand two
102 THE NORTH AMERICAN RE VIE W
buildings, each one hundred and twenty-eight feet long and thirty
feet deep, each apparently the counterpart of the other, and facing
one another, with an interval between them of seventy feet. The
sides by which they confront each other are ornamented with sculp-
ture, and each appears to have been surrounded by a colossal serpent
in stone. In the center of both is seen, set in the fa9ade, a frag-
ment of a great stone ring, four feet in diameter. There are no
openings whatever in the walls, whether doorways or windows.
Stephens had a breach made in the wall of one of these structures,
to the depth of over eight feet, and found only rough stones loosely
thrown together, but no chamber. What possible use could these
curious buildings have served?
Like the Casa del Gobernador, the Casa de las Monjas, the Nuns
House, stands on three terraces. It is quadrangular, with a court-
yard in the center. The front, which is two hundred and seventy-
nine feet long, is ornamented above the cornice with sculptures no
less elaborate than those of the Governors House. In the middle
is a wide doorway and passage leading to the courtyard, and on
each side are four doorways affording entrance to as many separate
apartments. There are no exterior doorways in the other three
buildings of the Casa de las Monjas. The four fa9ades overlooking
the courtyard present the most elaborate specimens of the sculptors
art anywhere to be seen in Uxmal. The four buildings constituting
this quadrangle are divided into chambers by longitudinal and
transverse walls, as in the Casa del Gobernador, except that in the
front building there is no communication between the front and the
rear row of chambers. One of these buildings incloses a smaller
and older one, the latter being, presumably, like the Holy House
of Loretto, a house made venerable in the eyes of the devout by
some miraculous event.
The House of the Dwarf stands on the summit of an artificial
elevation eighty-eight feet in height, and incased in stone. Some
sixty feet up the face of this mound, on a projecting platform,
stands a building divided into two chambers. Its front is the most
elaborately ornamented of any building in Uxmal, and is made to
represent some dread semi-human monster. The wide doorway is
the mouth; the lintel is carved to represent teeth; above are the
eyes still perfectly distinct, though the nose has disappeared by the
ravages of time. The crowning structure, the House of the Dwarf,
is seventy-two feet in front and only twelve feet deep. The orna-
mentation is extremely chaste. The three chambers into which the
RUINED CITIES OF CENTRAL AMERICA. 103
interior is divided have no communication with each other. Stephens
holds it to be beyond doubt that the House of the Dwarf was a
great temple of idols, in which human sacrifices were once offered.
The building known as Casa de Palomas, or House of the
Pigeons, is two hundred and forty feet long. It is in a very
dilapidated condition. How it got its name is best explained in
the words of Stephens: Along the center of the roof, says he,
running longitudinally, is a range of structures built in a py-
ramidal form, like the fronts of some of the old Dutch houses that
still remain among us, but grander and more massive. These are
nine in number, built of stone, about three feet thick, and have
small oblong openings through them. These openings give them
somewhat the appearance of pigeon-houses, and from this the name
of the building is derived. Through a wide doorway in the mid-
dle of this building there is a passage into a courtyard, bounded on
the right and left by ruined buildings. At the lower end of the
court is a range of buildings in ruins which have also a passage
through the middle, opening into a second courtyard, with a teocalli
or House of God, about fifty feet high, at the opposite end. Like
the House of the Dwarf, the building on this teocalli is divided
into three apartments.
Such are the principal edifices still to be seen in ruins at Uxmal.
But Uxmal is only one among many placesprimus inter pares
in Yucatan, where these interesting monuments of antiquity are
to be found. The remains of Palenque are still more imposing
than those of Uxmal, while for the artist and the antiquarian they
possess an interest that can hardly be exaggerated. To say no-
thing of the six noble buildings themselves which remain, known
as the palace and casas No. 1, No. 2, No. 3, No. 4, and No. 5, and
which exhibit a bolder architectural genius than we see at Uxmal,
though no new architectural principle is introduced, the specimens
of plastic art, the spirited bas-reliefs, and the numerous hiero-
glyphic tablets with which these buildings are decorated within
and without, suffice to insure for Palenque preeminent rank among
these ancient American cities.
Palenque is situated in the Mexican State of Chiapas, latitude
17~ 30 north, longitude 920 25 west. If a circle were described
so as to inclose all the ruins, its area, according to Stephens, would
not exceed that of the Battery Park in New Yorka very incon-
siderable area for a city. But it might have once occupied a
far greater area. Being solidly constructed of stone laid in mor
104 THE NORTH AMERICAN REVIEW.
tar, these buildings which remain could for generations withstand
the elements, while the frail tenements of the lower classes, and
even the houses of the upper class, would disappear and leave no
sign. The tropical forest in its irresistible advance has, as it were,
trampled into the earth the hovels of the poor and the mansions of
the rich; it is only a question of time when the palaces of the
kings and the shrines of the gods will succumb to the same fate.
Of the six Palenque buildings we can notice only one, the Palace.
Even of that, room is wanting here for a detailed description; and
of its numerous courts, chambers, and corridors we can particularize
only one or two. This palace, as it has been justly called, for it
was in every respect a fit abode for the ruler of the state, is a one-
storied structure twenty-five feet high, two hundred and eighty-
four feet front, and one hundred and eighty feet deep. It stands
upon a pyramidal elevation forty feet high, three hundred and ten
feet front and rear, and two hundred and sixty feet on each side.
This mound was originally faced with stone on all sides, and doubt-
less had stone steps, but the stones have long since fallen away, and
now are heaped at the base of the pyramid. A pyramidal tower
rises from near the middle of the palace projecting two stories above
the roof, which is fiat, and coated with cement. The entire build-
ing, or group of buildings, was constructed of dressed stone laid in
a mortar of sand and lime, and the front was coated with stucco and
painted in various bright colors. The cornice, which extends all
round the building, is supported on stone piers about seven feet
wide, between each pair of which is a doorway nine feet wide. Of
these doorways there are fourteen in front, and there the piers were
ornamented with bas-reliefs, some of which still remain as irrefrag-
able proof of a very high artistic development. These bas-reliefs
would of themselves appear to be enough to confute the theory ac-
cording to which Palenque, Uxmal, and the other sites of ruins in
this portion of the American Continent are only pueblos, groups
of communal houses such as still exist and are still inhabited in
New Mexico. All of the edifices which remain of Palenque, Ux-
mal, etc., are richly, even profusely decorated, while the coin-
munal houses of the pueblos are void of all attempt at ornamen-
tation. Indeed, to suppose that a community of barbarians would
erect for themselves such palaces as these, is to attribute to them a
degree of refinement never yet attained even by what is known in
Engla*nd as the upper middle class.
An idea of the high artistic merit of these bas-reliefs can only
RUINED CITIES OF CENTRAL AMERICA. 105
be obtained by an inspection either of the originals or of their
reproductions in drawings or photographs, such as illustrate Ste-
phenss or Charnays volumes. In future numbers of the Review,
many of these interesting monuments of indigenous American art
will be illustrated with engravings after photographs to be taken
by the Lorillard expedition. Suffice it, therefore, for the present, to
describe roughly one of this series of bas-reliefs as a specimen of
the whole. Here are seen three human figures, one of which, the
principal personage, stands erect, while the other two are sitting
cross-legged on the ground, the one before, the other behind him.
They are all in profile, and they all exhibit a very remarkable facial
angle of about forty-five degrees, as if the head above the ears had
been compressed in infancy so as to assume a peaked shape. The
attire of the principal figure consists of a bonnet of plumes orna-
mented with sundry devices, a short vest or cape, probably of fea-
ther-work (though it might be of mail), decorated with studs, and
faced with a sort of breastplate, a belt around the waist supporting
a close-fitting tunic made of the skin of some animal; finally, moc-
casins ornamented with feather-work at the top. In his hands he
holds a curiously branched staff or scepter. The other two figures
are naked, save that both wear wide belts. The border of this bas-
relief is richly ornamented; the work measures, within the border,
ten feet in height and six feet in width.
Entering at one of the doorways, we find ourselves in a grand
corridor which extends the whole length of the front of the palace,
and back of that is another corridor of nearly the same length
about two hundred feet. From this inner corridor doorways give
access to the principal court, which occupies nearly one fourth of
the whole interior. It were vain, without diagrams and figures, to
attempt to convey an idea of the ground-plan qf this edifice, or of
its ornamentation, and we content ourselves with simply enumer-
ating a few of the objects of interest which meet the eye. The
principal court adjoins the inner corridor, as we have said, and
occupies the northeast corner of the building, which itself faces
eastward. Crossing the inner corridor, we descend a grand. stone
stairway, each of whose steps is thirty feet in length, to the floor
of the court ; there is a similar stairway at the opposite or west-
ern end, and the distance between the two is about seventy feet,
while in the other direction the court measures eighty feet. These
stairways are situated in the middle of their respective sides, of the
court, and the piers to the right and left of them are adorned with
VGL. cxxxl.No. 285. 8
106 TEE NORTH AMERICAN REVIEW.
bas-reliefs of the same general character as that described above,
while the walls on which the piers rest have carved on them mon-
strous colossal figures nine or ten feet high. The court is encum-
bered with growing trees and with d~ris, so that excavations have
to be made in order to obtain a view of the figures. Above the
piers is a heavy cornice highly ornamented. Every time we de-
seended the steps, says Stephens, the grim and mysterious fig-
ures stared us in the face, and it (the courtyard) became to us one
of the most interesting parts of the ruins. We were exceedingly
anxious to make excavations, clear out the mass of rubbish, and
lay the whole platform bare; but this was impossible. It is prob-
ably paved with stone or cement; and, from the profusion of orna-
ment in other parts, there is reason to believe that many curious
and interesting specimens may be brought to light. This agree-
able work is left for the future traveler, who may go there better
provided with men and materials, and with more knowledge of
what he has to encounter; and, in my opinion, if he finds nothing
new, the mere spectacle of the courtyard entire will repay him for
the labor and expense of clearing it.
The pyramidal tower of the palace is in itself an enigma. It is
thirty feet square at its base. Stephens, on entering this tower from
one of the corridors of the palace, found within it another tower dis-
tinct from the outer one, and a stone staircase so narrow that a large
man could not ascend it. This staircase ends at a stone ceiling
which closes all further passage, the last step being only six or
eight ,inches below it.
Among the most remarkable bas-reliefs found in the palace is a
stone tablet set in a wall of a corridor adjoining the tower. This
now famous tablet, which is four feet long and three feet wide, con-
tains two figures with hieroglyphics in the spaces to the right and
left of them. The principal figure, which is nude, sits in the BbLd-
dha attitude, cross-legged, on a couch ornamented with two heads
of jaguars. The other figure bears a ludicrous likeness to an old
woman arrayed in old-fashioned modern gown and cape. She is
offering to the god, if god it beor perhaps goddesswhat ap-
pears to be a plumed bonnet, to take the place of the incomprehen-
sible head-gear of the deity.
All of these bas-reliefs have inscribed on them hieroglyphics, but
there are in the palace no hieroglyphical tablets, such, for instance,
as exist in casa No. 1. In that building both of the corner-piers of
the fa9ade are covered with hieroglyphics, and besides these there
RUINED CITIES OF CENTRAL AMERICA. 107
are three great hieroglyphic tablets, two of which are each thirteen
feet long and eight feet high, and each divided into two hundred
and forty squares. These tablets are a sealed book, and toward
their interpretation not even a beginning has been made.
Whether or not it will be in human power to decipher these and
the rest of American hieroglyphics, and to give to history the an-
nals they so vainly strive to tell, is a question yet to be settled. In
any event, however, one of the main objects of the expedition, the
reproduction of the most important inscriptions, has every prospect
of accomplishment. This will bring within the reach of all con-
cerned, both in Europe and in America, problems not unworthy the
attention of the highest human intellects. Nor is it unreasonable
to expect that some new Champollion will do for the early annals
of our continent what has been already so amply done for the his.
tory of ancient Egypt. It is true that the quiet student at Paris
or Washington will, of necessity, remain cold to some of the emo-
tions naturally evoked by the monuments which attest the prosper-
ity of what once was one of the fairest and most populous regions
of the earth. He will, perhaps, not be stirred by the feelings which
have moved enthusiastic travelers. It will not be in his power to
feel with Stephens when, in the midst of desolation and ruin, he
conjured up the past, dispelled the gloomy forest, and fancied every
structure perfect, with its terraces and pyramids repeopled, and over-~
looking an immense inhabited plain. The scholar will not, per-
haps, so readily as the traveler, call back into life the strange peo-
ple whom Stephens fancied gazing at him in sadness from the walls
of Palenquethe same people who had once, clad in fanciful cos-
tumes, adorned with plumes and feathers, ascended the terraces of
the palace and the steps leading to the temples. But, though the
future investigator may have no share in the genial enthusiasm of
the traveler, he will have at his command all the materials that the
most diligent research can obtain, for throwing light upon the ori-
gin and history of this interesting population. In careful casts and,
distinct photographs he will possess faithful representations of
every monument. In effect he will have before his eyes Copan
with all its mysteries, its columns scored with hieroglyphics, its
rows of deaths heads on the sculptured walls, its nameless kings
and gods; and to his unimpassioned research we must trust to bring
before us once more the old faith of an ancient and mighty priest-
hood, and the lost knowledge and strange arts of a cultivated and
vanished people, whose ruins can be compared only with the ruins
108 THE NORTH AMERICAN RE VIE W
of Rome in her glory. America, it has been said, is without tradi-
tions, has no past. But, just as geology shows that this Western
Continent is really the Old World, so arch~ological research will
perhaps show that man and human civilization are as ancient here
as in Europe. However that may be, these venerable monuments
appeal with special force to Americans of the present day, not only
on account of their value as purely scientific data, but also because
they supply the links which connect us with the past.
THE EDITOR.
THE LAW OF NEWSPAPER LIBEL.
THE liberty of the press has been the boon for which patriots
have struggled and many suffered. It has been the watchword of
progress, and the shibboleth of party. It has been the battle-cry of
those who contended against arrogant pretension and arbitrary
power, as it has been the terror of irresponsible rulers. Claimed by
its champions as the safeguard of the rights and rewards of freedom;
it has been decried by its enemies as destructive of order, and inimi-
cal to the public safety. Its attainment has been signalized by deter-
mined struggle and effort from the time of the public prosecutions
in England over a century ago, until now, when the freedom of the
press is recognized and established under the supreme sanction of
constitutional guarantees in every one of the United States.
However inestimable the right may have been once regarded, it
is certain that at the present time the phrase the liberty of the
press conveys no such idea of a public blessing as it formerly did.
Unfortunately, it now suggests a dangerous and unrestrained license
in the vituperation of private character, in the publication of much
that is vile and demoralizing, and in the misrepresentation of public
men and measures. On all sides we hear complaints of this license
and abuse; and the courts are more and more resorted to for redress.*
So now it is not so much a question of enlarging the liberty as of
circumscribing it; not one of guarding it so much as restraining it.
The nature and limit of this liberty have perhaps never been more
aptly and elegantly stated than by Wirt, on the impeachment trial
of Judge Peck, in December, 1830. The Judge was tried for punish-
ing, as a contempt, a party for the publication of a criticism in refer-
* The New York herald published in 1869 a statement in reference to libel
suits against the press; and it appears that there were then pending no less than 756
libel suits of this character, wherein the complainants demand no less than $4T,~OO,OOO
damages. (See this article, reproduced in hudsons History of Journalism, p. 747.)
John Proffatt
Proffatt, John
The Law of Newspaper Libel
109-128
THE LAW OF NEWSPAPER LIBEL.
THE liberty of the press has been the boon for which patriots
have struggled and many suffered. It has been the watchword of
progress, and the shibboleth of party. It has been the battle-cry of
those who contended against arrogant pretension and arbitrary
power, as it has been the terror of irresponsible rulers. Claimed by
its champions as the safeguard of the rights and rewards of freedom;
it has been decried by its enemies as destructive of order, and inimi-
cal to the public safety. Its attainment has been signalized by deter-
mined struggle and effort from the time of the public prosecutions
in England over a century ago, until now, when the freedom of the
press is recognized and established under the supreme sanction of
constitutional guarantees in every one of the United States.
However inestimable the right may have been once regarded, it
is certain that at the present time the phrase the liberty of the
press conveys no such idea of a public blessing as it formerly did.
Unfortunately, it now suggests a dangerous and unrestrained license
in the vituperation of private character, in the publication of much
that is vile and demoralizing, and in the misrepresentation of public
men and measures. On all sides we hear complaints of this license
and abuse; and the courts are more and more resorted to for redress.*
So now it is not so much a question of enlarging the liberty as of
circumscribing it; not one of guarding it so much as restraining it.
The nature and limit of this liberty have perhaps never been more
aptly and elegantly stated than by Wirt, on the impeachment trial
of Judge Peck, in December, 1830. The Judge was tried for punish-
ing, as a contempt, a party for the publication of a criticism in refer-
* The New York herald published in 1869 a statement in reference to libel
suits against the press; and it appears that there were then pending no less than 756
libel suits of this character, wherein the complainants demand no less than $4T,~OO,OOO
damages. (See this article, reproduced in hudsons History of Journalism, p. 747.)
110 THE NORTH AMERICAN REVIEW.
ence to an opinion he gave in a case. At the close of his argument
for the accused, the famous Maryland orator said:
What is the liberty of the press, and in what does it consist?
Does it consist in a right to vilify the tribunals of the country and
to bring them into contempt by gross and wanton misrepresentations
of their proceedings? Does it consist in a right to obstruct and
corrupt the streams of justice by poisoning the public mind with
regard to causes in these tribunals before they are heard? Is this
a correct idea of the liberty of the press? If so, the defamer has a
charter as free as the winds, provided he resort to the press for the
propagation of his slander; and, under the prostituted sanction of
the liberty of the press, hoary age and virgin innocence lie at his
mercy. This is not the idea of the liberty of the press which pre-
vails in courts of justice, or which exists in any sober or well-regu-
lated mind. The liberty of the press is among the greatest of bless-
ings, civil and political, so long as it is directed to its proper object
that of disseminating correct and useful information among the.
people. But this greatest of blessings may become the greatest of
curses if it shall be permitted to burst its proper barriers. The
liberty of thepress has always been the favorite watchword of those
who live by its licentiousness. It has been from time immemorial,
is still, and ever will be, the perpetual decantatum of all libelers.
To be useful, the liberty of the press must be restrained.
The full and unrestrained license accorded the press has resulted
too often in the aspersion of private character, and the invasion of
domestic privacy; and therefore .the tribunals of the country, by
means of libel suits, are called upon very frequently to protect and
vindicate one of the dearest rights of individualsreputation. It
will be, therefore, instructive, and of practical importance, to inquire
what are the limits which the law has placed upon this liberty of the
press; and how far it can invade private life and violate reputation
without incurring a liability for libel. Let it be premised that it is
rather in respect to civil liability that we intend to examine the
question; for it is seldom now we witness criminal prosecutions
against the press on behalf of the State for an abuse of its liberty.
The prosecutions familiar at the prcsent are those by individuals
for damages for defamation, or by the State for criminal injury
to such individuals. It is not intended to point out what charges
or imputations are libelous, or to what extent newspapers can go,
in commenting on men and things, without exposing themselves to
a charge of libel. To do this we should have to enter into an ex
THE LA W~ OF NEWSPAPER LIBEL. 111
amination of the whole law of libel. It will be presumed in this
inquiry that there is a knowledge of the law of libel, so far a~ is
necessary to perceive what constitutes a libelous charge; that a
libel, as it is well defined, is any malicious publication, written,
printed, or painted, which by words and signs tends to expose a
person to contempt, ridicule, hatred, or degradation of character. *
The definition given by Chief Justice Parsons, in Commonwealth
VS. Clap, ~ has been often quoted with approval. He says, A
libel is a malicious - publication expressed either in printing or writ-
ing, or by signs or pictures, tending either to blacken the memory
of one dead, or the reputation of one who is alive, and expose him
to public hatred, contempt, and ridicule.
It is a common understanding that newspapers have a special
indulgence or privilege in their public comments, which is denied
to private persons. Now this popular fallacy is misleading, not
only to those who may rightfully complain against the freedom and
immunity allowed the press, but as well to journalists themselves.
In a certain sense newspapers are so privileged; for their publica-
tions come under the head of privileged communications, which
rebut the presumption of malice, implied when a libel is published
without legal excuse. But in this respect newspapers as such en-
joy no peculiar immunity; they have merely the same right which
any individual has to comment on matters of public concern, or
on facts of a public nature, and to criticise public performances.
At present, the law takes no judicial cognizance of newspapers;
and, independently of certain statutory provisions, the law recog-
nizes no distinction in principle between a publication by the pro-
prietor of a newspaper, and a publication by any other individual.t
This popular error is stated and combated in a recent case before
the Supreme Court of Ohio (Wahle vs. Cincinnati Gazette Com-
pany), where the defense to a suit for libel was that the publication
was privileged, concerning which the Court says: The question
then presented is, whether or not these communications come under
the head of privileged communications. Part of the answer states
they were made by a public journal of a public officer. The allega-
tions being made by a public journal, of course, makes no difference.
If the communications are not privileged when made by a private
* Mercur, 3., in Barr vs. Moore, Sup. Court of Pennsylvania, November, 1878.
~ 4 Mass., 163.
~ Townshend on Libel, 252; Foster vs. Scripps, 13 American Law Review,
~i95; Sheckell vs. Jackson, 10 Gushing, 26.
112 THE NORTH AMERICAN REVIEW.
citizen, they would certainly not be privileged if made by a news~
paper. It would be a strange rule if we were to hold that a man
could with impunity spread abroad a story when he used an engine
of fifty-ton power, while he would be punished if he should merely
do the same thing by whispering it to an acquaintance. Wherever
our laws extend, the nile is the same between private citizens and
newspapers. Every person has a right to discuss all matters of
public interest, and to comment favorably or unfavorably thereon,
either by attack upon, or criticism of, the official acts of persons in
a public station. And the freedom of the press is, when rightly
understood, commensurate and identical with the freedom of the
individual and nothing more. This freedom should at all times be
justly guarded and protected, but so should the reputation of an
individual against calumny. The right of each is too valuable to
be encroached on by the other. The general liberty of the press
must be construed, therefore, in subordination to the right of any
person calumniated to hold it responsible for an abuse of that lib-
erty.
rj7he consideration we shall give to this subject at present will
be principally confined to three pointsthose which peculiarly con-
cern the sphere of newspaper publication, and in which journalists
are most prone to expose themselves to a charge of~ libeL These
are comments relating to public men or measures.; criticism on
authors, works of art, and literature; and reports of judicial pro-
ceedings. But, as preliminary to this inquiry, it will be useful to
discuss some special points having a particular reference to news-
papers, and relating to what may be termed new8paper law.
Journals are well known to be the vehicle or means of circulat-
ing reports on common or hearsay rumor, and sometimes on very
unreliable authority. They quote from, and often refer imperson-
ally to vague reports and rumors under a mistaken idea that in this
manner they may evade a libelous charge. Yet it is well estab-
lished that it is no less libelous to make a charge on common
report, or on the authority of another named, than to make it
directly. But, although a libel is not justfflable when the article
is copied from another paper, a defendent may, however, show in
mitigation of damages that it had previously been published in
other papers, for this serves to show the quo animo.* In the case
of Storey vs. Earley, in the Supreme Court of Illinois, February,
* Hewitt vs. Pioneer Press Company, 23 Miun., 178; Heilman vs. Shanklin, 00 In-
diana, 424.
THE LA IF OF NEWSPAPER LIBEL. 113
1878, Breese, J., says that there is a clear distinction between
a publication of slanderous matter in a newspaper as a matter of
news, and the publication of slanderous matter on the personal
truthfulness and responsibility of the defendant.
An editor is responsible for a libelous communication published,
although the writers name is signed.* And the fact that a libel
was published in the communication of a correspondent, was held
not admissible in evidence to mitigate damages.f
On this subject, in one of our early cases in Pennsylvania,~ the
Court tersely says: It will not be denied that if one designedly
bespatters anothers clothes with filth as he passes the street, though
at the instigation of a third person, he would be liable for damages.
And shall a printer with his types blacken the fairest reputation
the choicest jewel we enjoyand go scot-free, merely because he
has told the world that the paper is inserted at the request of an-
other?
This point was recently well considered in Perret vs. New Or-
leans Times. Certain irresponsible persons, whose residence was
unknown, published in the defendants journal an advertisement
severely reflecting on certain public men. The publication was
admitted, but the defense was that it was published as an advertise-
ment; and that it was received at a late hour of the night, and dur-
ing the absence and without the knowledge of the proprietors of
the paper. It was denied that the defendant had any malicious
intent; and, as proving an absence of malice, it was shown that as
soon as the plaintiff brought the injury to the attention of the
defendant, an editorial article was inserted, explanatory of the
publication, which the plaintiff deemed satisfactory. The defend-
ant was, however, held liable. The decision of the Court in this
case deserves particular attention, as enunciating some sound and
salutary principles in regard to newspaper defamation. The Court
admitted the right of public journals to freely comment upon the
acts and conduct of men in public life, to speak faithfully and
boldly in the interests of the people regarding public measures, and
questions of all kinds that concern the community at large. The
Court then says : Still there is a limit beyond which this freedom
becomes license. The law which shields the private character and
* Hotchkiss ts. Oliphant, 2 Hill, 510.
~ Talbutt V8. Clark, 2 Moody and Rob., 312.
~ Runkle vs. Meyer, 3 Yeates, 518.
25 La. An., 170.
114 THE NORTH AMERICAN REVIEW.
reputation of an inoffensive person from the assaults of calumny
and falsehood is founded upon a public sentiment of greater power
even than that of the free press. It forbids the wanton violation
of the sacredness of personal character and good name.
Sometimes after an injury has been done, a paper may, by way
of reparation, offer and make an explanation or retraction of a libel-
ous charge; but, while this is commendable and entitled to con-
sideration as a mitigation of the damage, it will not shield nor
exempt a publisher from an action.* The publication of the expla-
nation or retraction may be offered in evidence in mitigation, just
as a subsequent publication may be given in evidence to show a
reiteration of the charge, and the malice of a publisher.t But
neither the good intentions of the publisher nor his honest belief
in the truth of the charge when it is libelous will be a justification,
though they may show in mitigation, for in these cases the intent
is a main element in the liability.
When an editor desires to make the amende 1tonora1~1e, he should
do so promptly in a prominent part of his paper and in clear type.
It will not be sufficient to put the apology among notices to cor-
respondents, and in fine type.
An action lies against the proprietor of a newspaper edited by
another, although the publication was made without the knowledge
of such proprietor. By intrusting the conduct of the paper to
another~ the owner constitutes this person his general agent, and is
therefore responsible for his acts in such capacity. In an early
case in New York, this point came under the consideration of the
Court, and it was determined that the proprietor of a newspaper,
which is edited by another, is responsible for a libel published there-
in, although published without his knowledge. The same rule was
held in a well-known English case, Rex vs. Walter,** which was
* See a late instructive case in this connection: Cass vs. New Orleans Times, 27
La. An., 214, and Towashend on Libel, 413.
1 Goodrich vs. Stone, 11 Metcalf, 486; Barr vs. Moore, Sup. Court of Pennsylvania,
November, 1878; Thomas vs. Croswell, 7 Johnsons Reports, 264.
~ Rearick vs. Wilcox, 81 Ill., 77.
Lafone vs. Smith, 3 Hurl, and N., 735.
Detroit Daily Post Co. vs. MeArthur, 16 Michigan, 447. This case is instructive
as showing that a proprietor may be to some extent relieved from liability when he
has taken due precaution to select careful and competent persons to conduct the
paper.
Andres vs. Wells, 7 Johnsons Reports, 260, decided in 1810.
** 3 Esp. 21.
THE LAW OF NEWSPAPER LIBEL. 115
an indictment for libel against the proprietor of the Times. He
proved that he lived in the country, and took no part in conducting
the newspaper, which was under the charge of his son. In spite of
the able advocacy of Erskine, Lord Kenyon was clearly of opinion
that the proprietor of a newspaper was answerable, criminally as
well as civilly, for the acts of his servants or agents in conducting
~such newspaper.
Irony, humor, and satire are frequently indulged in to make a
journal spicy; and as a general rule a writer may safely shield
himself in this manner if his shafts are not too directly leveled, or
his allusions too personal or pungent. The editor of the Denver
Tribune published, concerning Mr. Downing, the following:
My conscience (meaning the conscience of the said plaintiff)
bath a thousand several tongues,
And every tongue brings in a several tale;
And every tale condemns me (meaning the said plaintiff)
for a villain.
Perjury, foul perjury in the highest degree;
Murder, stern murder in the direst degree,
All several sins, all used in each degree,
Throng to the bar, crying all: Guilty! guilty!
Richard III.
and yet Jack Downing (meaning the said plaintiff) affects to
laugh with a low, guttural sound, thus: Ha! ha!! ha!! ! The
complaint charged that this imputed perjury as well as murder.
The article also charged that the plaintiff was a second Boss
Tweed and a ballot-box stuffer. It was left to the jury~to find
what the defendant meant to charge, or whether he meant any-
thing serious, and the jury being doubtful as to what precise charge
was meant, gave the defendant the benefit of the doubt, and the
editor had a verdict in his favor.* But irony is not always to be
indulged in with impunity. Thus, where the plaintiff having pub-
lished a somewhat singular article in his paper, the defendant, the
editor of another paper, published an ironical article, alleging that
the plaintiff had become insane; that his friends had ~ut him in
confinement, and consigned the management of his paper to an
Irishman; that he had been put in a strait-jacket, etc. This was
held libelous, and it was left to the jury to determine how far
it was malevolent.t So humor can not always be safely indulged
* Downing vs. Brown, 3 Colorado, 5fl.
j Southwick vs. Stevens, 10 Johnsons Reports, 443.
116 THE NORTH AMERICAN REVIEW.
in; it may sometimes be a dangerous instrument, even in an editors
hands. The editor will be excused, however, if he can show to the
jury that he thought a communication complained of was a fictitious
narrative or a mere fancy sketch, and that it was not intended for
anybody in particular, atthough the writer intended it as a libel on
the plaintiff. In such a case the writer only is liable to the party
libeled.*
We will now consider more specially the three divisions of the
subject we proposed:
1. Comments respecting Pu6lic Men.
It is in this field that journals are most liable to abuse their
privileges, and to expose themselves to the hazard of a prosecution
for libel. The acknowledged privilege which they possess, in coin-
mon with citizens generally, of commenting upon public affairs,
criticising the actors in such affairs, exposing their shortcomings
or disqualifications, has given them a license in this respect which
induces them too often to assail personal reputation, and to invade
domestic privacy. It is in this direction we so frequently hear
complaints of the abuses of the press. Good men are said to be
deterred from entering public life, or participating in public affairs,
because they will be thus subjected to calumny, and exposed in
their private life to adverse criticism. It must be confessed, the
abuse is too frequent and the evil lamentable; but it is well to
know that, under the law as laid down by our courts, the fact of a
person being a public character, or a candidate for a public office,
does not necessarily subject him to be calumniated, or held up to
ridicule in his private life, without redress. Our courts have lately,
in several instances, laid down salutary principles for the protection
of the private character of those engaged in public affairs. There
is an erroneous idea abroad that a man can be calumniated in his
private character, falsely ridiculed and traduced, because he happens
to be a public character. There is, however, a license allowed in
this respect, and a right given to criticise, which in reference to a
private individual would be clearly libelous, because it is acknowl-
edged that a service is rendered thereby to the people at large, who
have a right to be informed concerning the merits and qualifications
of those who seek their suifrages. It is laid down in Parmiter vs.
Coupland,t that a much greater latitude will be extended to criti
* Smith vs. Ashley, 11 Metcalf, 867. 6 31. and W., 108.
I
THE LAW OF NEWSPAPER LIBEL. 11~
cisms on persons occupying a public capacity, than to criticisms on
private individuals; and publications which would be clearly libel-
ous if leveled against the latter, may be innocent and even com-
mendable when directed against the former.
At the beginning of this century Chief Justice Parsons very
accurately stated the ground and the limit of this privilege in Com-
monwealth V8. Clap.* When any man, he says, shall consent
to be a candidate for a public office conferred by the election of
the people, he must be considered as putting his character in issue,
so far as it may respect his fitness and qualifications for the office.
And publications of the truth on this subject, with the honest inten-
tion of informing the people, are not a libel. For it would be un-
reasonable to conclude that the publication of truths, which it is the
interest of the public to know, should be an offense against their
laws. . . . For the same reason the publication of falsehood and
calumny against public officers is an offense most dangerous to the.
people and deserves punishment; because the people may be de-
ceived, and reject the best citizens to their great injury, and, it may
be, to the loss of their liberties. How well it would be if courts
would particularly impress juries with the principle here laid down,
in regard to liability for calumniating public characters! The cor-
rect doctrine on this subject may be thus stated : The writer must
not make the occasion one for the gratification of personal malice
and vindictiveness, when commenting on public affairs. He must
not make imputations of base, sordid, or corrupt motives, or dis-
honest conduct. He is not bound to justify to the very letter
everything that he writes; yet his inferences must not be reckless
and unjust, though they may be hostile and severe. If l~e proceeds
further, and in a spirit of reckless and inconsiderate imputation
makes false charges, though he may in good faith believe in the
truth of his imputations, he is guilty of a libeL f
The virulence of political and party strife at the beginning of
this century was conspicuous in the historical prosecution for libel
in People VS. Croswell in New York. Hildreth thus accurately
describes this celebrated action: While these political intrigues
were in progress, a case came on for argument before the Supreme
Court of New York, then sitting at Albany, in which the rights
and freedom of the press were deeply involved. Ambrose Spencer,
* 4 Mass., 163..
~ Shortt on Libel, 434; Cockburn, J., in llcdley vs. Barlow, 4 F. and F., 230.
~ 3 Johnsons Cases, 360.
118 THE NORTH AMERICAN REVIEW.
as Attorney-General, had instituted a prosecution for libel against
a Federal printer for having asserted that Jefferson had paid Cal-
lender for traducing Washington and Adams. The case had been
tried before Chief Justice Lewis, who had held, among other things,
that in a criminal trial for libel, the truth could not be given in evi-
dence; and that the jury were merely to decide the fact of publi-
cation, the question belonging exclusively to the court whether it
were a libel or not. These points coming on for a rehearing before
the Supreme Court, on a motion for a new trial, Spencer maintained
with great zeal the arbitrary doctrines laid down by Lewis. Ham-
ilton, a volunteer in behalf of the liberty of the press, displayed on
the other side even more than his wonted eloquence and energy in
denouncing the maxim The greater the truth the greater the libel,
at least in its relation to political publications. The court, after a
long deliberation, was equally dividedKent and Thompson against
Lewis and Livingston. The opinion of the Chief Justice stood as
law; but Hamiltons eloquence was not lost. A declaratory bill
was introduced in the Assembly, then sitting, by a Federal member.
The ,Republicans shrank from this implied censure on their can-
didate for Governor, and the matter was postponed to the next
session. An act allowing the truth to be given in evidence was
then passed, but was defeated by the council of revision, composed
of the judges and Chancellor, The act, however, with some modi-
fications, became law the next year, and such either by constitu-
tional provisions, legislative enactment, or the decisions of the
courts, is now the law throughout the United States.
A late decision in Kansas shows that, under the Constitution
and statutes of that State, the truth will not be a justification in
criminal as in civil actions, unless published for justifiable ends. *
It was lately held otherwise (as the cases generally hold) in Mas-
sachusetts.t We can not but more readily subscribe to the good
policy of the Kansas rule, although at the time the decision was
rendered, it gave rise to much controversy in that State and in
other places. Allowing the truth to be given in evidence as a jus-
tification, irrespective of the object c~f the publication, gives the
press and libelous writers generally an immunity which may be de-
structive to the peace of the community, and inimical to the pro-
tection of private character. Members of legislative bodies too
often have to bear the effect of journalistic rancor, and have to
suffer their motives to be impugned and misrepresented. Calling
* Castle vs. Houston, P7 Kan., 417. ~ Perry vs. Potter, 124 Mass., 338.
THE LA TV OF NEWSPAPER LIBEL. 119
a member of Congress a fawning sycophant, a misrepresentive,
and charging that he had abandoned his post in Congress to seek
a certain office, was held libelous.*
In a case where a lawyer offered himself as a political candidate
the proprietor of the Sunday Mercury published concerning
him: Elnathan L. Sanderson, extra-radical candidate for Assem-
bly from the third, fourth, and eleventh wards of Brooklyn, did a
good thing in his sober moments in the way of collecting soldiers~
claims against the Government for a fearful percentage. The
blood-money he has got from the boys in blue in this way is sup-
posed to be a big thing, and may elect him to the Assembly on the
loyal ticket, although the soldiers and sailors are out in full force
against him. The Court held that the fact that the plaintiff was a
candidate for office did not make the publication privileged.
Recent decisions in Pennsylvania, Michigan, and Illinois, show
the direction which the courts are taking, and are instructive, be-
cause they limit in an important degree this assumed privilege of
animadverting upon and aspersing the character of men occupying
a public or quasi public station.
The case of Foster vs. Scripps f was lately decided in Michigan.
This was an action for libel brought against the proprietor of the
Detroit Evening News, for publishing of the plaintiff, who was a
city physician, that he had caused the death of a child by introduc-
ing scarlet fever into its system in vaccinating it. In the court
below the article was held to be privileged, on the ground that the
plaintiff was a city physician. The Supreme Court reversed the
judgment, and Chief Justice Campbell, in giving the opinion of the
Apellate Court, very ably considers the question of privileged pub-
lications. It is not, he says, and can not be, claimed that there
is any privilege in journalism which would excuse a newspaper,
when any other publication of libels would not be excused. What-
ever functions the journalist performs are assumed and laid down
at his will, and performed under the same responsibility attaching
to all other persons. The greater extent of circulation makes his
libels more damaging, and imposes special duties as to care to
prevent the risk of such mischief proportioned to the peril. But,
whatever may be the measure of damages, there is no difference in
liability to suit. Allowing the most liberal rule as to the liability
of persons in public employment to criticism for their conduct,
* Thomas vs. Croswell, 7 Johnsons Reports, 264.
~ 13 Am. Law Rev., 595.
120 THE NORTH AMERICAN RE VIE W
in which the public are interested, there certainly has never been
any rule which subjected persons, public or private, to be falsely
traduced. The nearest approach to such license is where th~
person vilified presents himself befQre the body of the public as
a candidate for ~n elective office, or addresses the public in open
public meetings for public purposes. But even in such cases we
shall not find support for any doctrine which will subject him, with-
out remedy, to every species of malevolent attack. But where a
person occupies an office like that of a city or district physician, not
elected by the public, but appointed by the council, we have found
no authority, and we think there is no reason, for holding any libel
privileged, except a bonafide representation, made without malice
to the proper authority, complaining on reasonable grounds.
The case of Rearick vs. Wilcox, in Illinois,* considers the same
subject. Here it is decided that it is no justification nor mitigation
of a libel upon a candidate if there was great public excitement in
the election, in which party spirit ran high, and an instruction to
the jury that they might consider such excitement was held errone-
ous. Neither the good intentions, nor the reports which reached an
editor, could justify, though, to a certain extent, they might excuse
him. These decisions are noticeable, for they show the principles
controlling courts in laying down the law to juries. If they were
followed, there would be less distrust in the courts and in legal
remedies for the vindication of private character from wanton and
reckless attacks. -
We are accustomed to regard the French newspaper law as
severe and illiberal; but, with all the laudation of our law, we
must claim that the French law manifests a more tender solicitude
for the inviolability of private character, and a higher regard for
the intimacy of domestic life, than our own. While a public jour-
nal in France may freely comment on a person in his public or offi-
cial character, it is forbidden to pass over the threshold of the
family, and reveal to public view the acts of private life. The acts
taking place in the privacy of the family are not to be exposed, and
must be sacred from the prying and curious eyes of the ubiquitous
reporter. We could hardly expect outside of Anglo-Saxon commu-
nities such a high regard for the inviolability and the sanctity of
the family. Yet to-day in France, under the law of the 11th of May,
1868, any publication in a periodical relating to facts of private
life is prohibited under a fine of five hundred francs. A recent
* 81 Iii., ~l7.
THE LAW OF NEWSPAPER LIBEL. 121
decision under this law shows how strictly the courts follow it.
Thus, it was held to be violated when a paper published the names,
and gave sketches of certain persons who entered upon a pilgrim-
age, although the court admitted it might be allowable to publish
the fact of the pilgrimage, and its organization.* The construction
of the law appears further from a decision of the court published in
the Journal du Palais for June, 1877, where it is held: LeB
faits de Ut vie priv~e dent lapu~lication dane ~critp~riodique tombe
sous le coup dart. 11 de Ut loi du 11 mai, 1868, sentendent non seule-
ment des faits qui se passent dane Ut famille, mais encore de ceu~e
qui sacco7nplissement dans le monde exterieur, m~me dane un lieu
public et avec une publicit~ relative loreque lauteur de ces faits lee
ex~cute comme homme priv~. The law in France makes an impor-
tant distinction in the mode of trying offenses of the press against
private character, and offenses against men in their public or official
character. In the former case there is a more summary mode, with-
out a jury, before the Tribunaux Correctionnels, while offenses
against public men are to be tried by a jury since the law of the
15th of April, 1871. Art. III of this law provides:
En cas dimputation contre lee dt~positaires ou agents de lau-
torit~ publiqu6, d loccasion de faits relatife d leurs fonctions, ou
contre personne ayant agi dane un caract~re public, a loccasion de
eec actes, la preuve de la verit~ dee faits diffamatoiree pourra ~tre
faite devant lejury.
The IDuc de Broglie was chairman of the committee who drew
up the projet of this law, and he made a very instructive report,
showing the views that influenced the committee in relegating to
the jury offenses of this character. He says : Si limputation est
fond6e au contraire, si cest un fait vrai qui est r6v616 au public, un
service 6miuent est rendu ~ soci6t6, qui se trouve par l~ avertie du
danger que lui fait courir un serviteur infidMe. Attaquer les fouc-
tionnaires publics est le droit dun citoyen dans un pays libre, et
1abus ne commence que quand lattaque est pouss6e jusqu~ dana-
turer la verit6. Si jamais la verit6 est n6cessaire, cest pour dis-
cerner la limite qui s6pare un acte non seulement licite, mais louable,
dun acte crimineL
We think the policy of these laws is to be commended; and it
would be well if we had some similar legislation in favor of the
inviolability of private life. If I am the owner of a field, I can, by
virtue of that ownership, restrain the invasion of my property by
* Journal du Palais for 18~4, p. 563.
VOL. cxxxi.i~o. 28.5. 9
122 THE NORTH AMERICAN RE VIEW.
simply warning off all trespassers. I have a right to an exclusive
and unmolested enjoyment of this property. And is not ones pri-
vate character as sacred and inviolable as his house or property?
If the law seeks to enter the privacy of the home, it has to issue
its regular process and mandate before it can be properly done.
And why can a public writer at his will pass the threshold of that
home, drag to public view its intimacies, its privacy, and its confi-
dences, simply because a person in some manner happens to attract
public attention?
Z Criticism.
Writers in the public press frequently make themselves liable to
a charge of libel by reason of an intemperate and reckless criticism
of works of literature and art. They are permitted a wide latitude
in this respect, on the ground that it is praiseworthy to enlighten
the public in reference to such works, and improve the public taste.
They can go far in condemning the productions as vicious, crude,
and demoralizing; but they can not attribute unworthy and base
motives, and bad faith, to the authors. Says Lord Ellenborough,
in Carr vs. Hood *: Every man who publishes a book commits
himself to the judgment of the public, and any one may comment
on his performance. If the commentator does not step aside from
his work, or introduce fiction for the purpose of condemnation, he
exercises a fair and legitimate right. . . . The critic does a great
service to the public, who writes down any vapid and useless publi-
cation, such as ought never to have appeared. He checks the dis-
semination of bad taste, and prevents people from wasting both
their time and money upon trash. I speak of fair and candid criti-
cism, and this every one has a right to publish, although the author
may suffer a loss from it. . . . Reflection on personal character is
another thing. Show me an attack on the moral character of the
plaintiff, or any attack upon his character unconnected with his au-
thorship, and I shall be as ready as any judge who ever sat here to
protect him; but I can not hear of malice on account of turning
his words into ridicule. Similar views were laid down in Strauss
vs. Francis,f in reference to a critique in the Athemeum, where a
novel was described as characterized by vulgarity, profanity, and
indelicacy, bad French, bad German, and bad English, and abuse
of persons living and dead.
The limits of criticism appear from the action brought by the
* 1 Campbell, 358. j. 4 F. and F., 1113.
THE LA TV OF NEWSPAPER LIBEL. 123
celebrated novelist Cooper against Stone,* for a libel published in
the Commercial Advertiser. Here it was held that, while it is
allowable freely to condemn and criticise an authors productions,
a critic can not impute to the author false and dishonest or un-
worthy motives in the preparation of his book.
One of the most famous cases of this kind was an action for libel
brought by Charles Reade against the editor of The Round Ta-
ble, in 1870, for a criticism on his Griffith Gaunt. This case is
reported as Reade vs. Sweetzer, ~ and the Judges charge to the jury
has been much approved as containing a correct statement of the
privileges and limits of criticism. The article in The Round Ta-
ble charged that it was one of the worst stories that had been
printed since Sterne, Fielding, and Smollett defiled the literature of
the already foul eighteenth century, and that it was not only
tainted with this one foul spot, it is replete with impurity, it reeks
with allusions that the most prurient scandal-monger would hesi-
tate to make. It was denounced as unfit for circulation in fami-
lies, and it was said to be doubtful whether the author had not lent
his name to others to utter this work.
Judge Clerke charged the jury: The critic may say what he
pleases of the literary merits of the published production of an au-
thor, but with respect to his personal rights, relating to his reputa-
tion, the critic has no more privilege than any other person not
assuming the business of criticism. For instance, he may say that
the matter is crude, forced, and unnatural; that it betrays poverty
of thought, and abounds with commonplaces and platitudes, being
altogether fiat, stale, and unprofitable, and that its style is affected,
obscure, and involved. He may say, as Burke said of the style of
Gibbon, that it is execrable, or that it is personally affected, absurd,
or wayward. . . . The critic can call a painting a daub and an abor-
tion, but he can not call the painter himself a low, discreditable
pretender and an abortion. He further charged that a critic may
not, from the sentiments and characters of the work, impute un-
worthy motives and evil designs to the author himself. The jury
merely found for the plaintiff six cents damages, though the charge
was so much in his favor.
A recent case in Massachusetts, in reference to a criticism con-
cerning the famous Cardiff Giant also illustrates the limits of
criticism. The article stated that the giant originally cost eight
* 24 Wend., 442. 6 .& bb., N. S. 9.
4 Gott vs. Pulsifer, 122 Mass., 235.
124 THE NORTH AMERICAN REVIEW.
dollars, and that the man who brought the colossal monolith to
light confessed that it was a fraud. The defendant testified that
he wrote the article as a humorous comment on one in the Chicago
Tribune; that he did not know the plaintiff, and intended no
malice. Evidence on the plaintiffs part of the value of the giant
as a scientific curiosity was ruled out. The plaintiff requested forty-
one instructions to be given to the jury; but a verdict was given
for the defendant.. The Court on appeal held the ninth request to
have been erroneously declined, and granted the promoter of the
giant another trial, the ground being that under that direction
the jury may have found that the defendants charges were false,
but that he was not liable to punishment because he intended no
injury. This, the Court says, is not law; for a publisher is liable,
if his comments exceed the bounds of fair criticism and produce
injury, no matter what were his motives.
3. .Reports of J~idicial Proceedings.
Reports by newspapers of judicial proceedings, when they are
true, impartial, and not garbled, are privileged. The report is not
privileged if it in any wise discolors or garbles the proceedings or
adds unwarrantable comments or insinuations. The English courts
have gone further in restricting this privilege than our own when
the proceedings are defamatory or indecent. Maule, J., in bare
vs. Silverlock, says, Matters may appear in a court of justice
that may have so immoral a tendency, or be so injurious to the
character of an~ individual, that their publication would not be tol-
erated. But this statement has reference particularly to the case
of individuals voluntarily publishing the proceedings of a trial, in
order to reflect on the character of a person by some defamatory
matter; but it is different in the case of newspapers, which assume
the duty, for public information, of reporting the proceedings.
They are then fully privileged, if they give a true and fair account
of the proceedings, notwithstanding matter defamatory of an indi-
vidual is thereby published.
In New York, the publication in newspapers of judicial and
other public proceedings is protected by statute, which enacts: No
reporter, editor, or proprietor of any newspaper shall be liable to
any action or prosecution, civil or criminal, for a fair and true re-
port in such newspaper of any judicial, legislative, or other public
official proceedings, or any statement, speech, argument, or debate
9 0. B. 20.
THE LA W OF NEWSPAPER LIBEL. 125
in the course of the same, except upon actual proof of malice, which
shall in no case be implied from the fact of publication. Nothing
in the preceding section contained shall be so construed as to pro-
tect any such reporter, editor, or proprietor from an action or in-
dictment for any libelous comments or remarks superadded to and
interspersed or connected with such report. *
When it is said that the account or report of a trial must be fair
and impartial, it is understood that a party must publish not merely
fragments, but the whole case; not necessarily in ea,tenso, for it
may be abridged. He can not partially state it so as to draw un-
warrantable inferences or unjust conclusions. He may comment
on the proceedings, provided the comments are fair and impartial.t
Says Spencer, J., in Thomas vs. Croswell,t There is not a dic-
turn to be met with in the books, that a man, under the pretense
of publishing the proceedings of a court of justice, may discolor and
garble the proceedings by his own comments and constructions, so
as to effect the purpose of aspersing the characters of those con-
cerned.
The case of Pittock vs. ONeil is a good illustration, showing
how dangerous it is to intersperse or accompany the account of an
action with sensational and highly colored conclusions and com-
ments of the writer. Such expressions in relation to a divorce case
as terrible story of domestic treachery and guilt, wreck of
domestic happiness, shameless treachery and hypocrisy, scan-
dalous affair, etc., were held libelous; and the plaintiff had a ver-
dict of one thousand dollars. Comments may be made on a body
of men in such a reckless manner, and corrupt motives attributed
to them collectively, so as to give to an individual of that body a
right of action on his own account. This was the case where a
newspaper article pronounced the verdict of a jury infamous
and added, We can not express the contempt which should be felt
for those twelve men, who have thus not only offended public opin-
ion, but have done injustice to their own oaths. It was held that
an action for libel might be maintained by a member of the jury
against the publisher.II
This is an important decision, and deserves attention from news-
* Laws of 1854, Ch. 130, 1,2. And see Ackerman vs. Jones, 37 N. Y. Superior
Court, 42.
j Lewis vs. Walter, 4 B. and Aid., 612; Stiles vs. Nokes, 7 East, 493.
7 Johnsons Reports, 264. 63 Pennsylvania Reports, 253.
~ Byers vs. Martin, 2 Colorado, 605.
126 THE NORTH AMERICAN REVIEW.
papers when they comment on the verdicts of juries which they dis-
approve, as it leaves them open to twelve suits for libel for the
same charge.
A libel may be conveyed in the head-lines of a report. Thus,
where an article charged, in the heading of the report of public pro-
ceedings, that a public officer had been guilty of blackmailing, and
had been dismissed from office on that account, it was held to be
libelous, unless it was a fair deduction from the facts reported.*
And so where a report of proceedings in a court of law was headed,
Shameless conduct of an attorney. t
Whether newspaper writers can go to the court records and ex-
tract therefrom accounts of actions begun before any hearing has
been had on the complaint, as to publish, in a suit for divorce, the
substance of a bill charging a person with adultery, was a question in
a recent Michigan case.~ The Court, although it did not decide
the point, entertained a strong impression that such publication
was not privileged. The same question arose, and was decided
in Barber vs. St. Louis Dispatch Co., in 1876 ; and it was held
that such publication was not privileged, as it was an account of
an ~ parte proceeding. The rule in England was, and until lately
in this country, that the ex parte proceedings before coroners and
committing magistrates were not privileged, and newspapers pub-
lished them at their peril. But in a late English case II the rule
was overthrown by Lord Cockburn, when he held that the report
of an ex parte application made to a police magistrate was privi-
leged, notwithstanding the magistrate decided he had no jurisdic-
tion. A similar decision was made in Maryland in the case of
McBee vs. Fulton, an action against the proprietor of the Balti-
more American, and it was held that newspaper and other reports
of courts of justice are privileged; and this extends to preliminary
examinations before justices of the peace. The reports, however,
though they need not be verlatim, must be substantially correct,
and not garbled or partial, and made Iwna fide and without malice.
These decisions may be accepted as laying down the generally
received doctrine on this point.
The uncertainty of the result in an action against the proprietor
of a newspaper for libel, deters many from attempting to pursue
this method in the vindication of their character. This uncertainty
* Edsall vs. Brooks, 17 Abb. Pr., 221. ~ Walcott vs. Hall, 6 Mass., 514.
4 Scripps vs. Reilly, 35 Michigan, 3l1. See 4 Central Law Journal, 332.
Usill vs. Hales, 26 W. R., 371. 4~ Md., 403.
THE LAW OF NEWSPAPER LIBEL. 127
and distrust, it must be admitted, do not arise from any indefinite-
ness or uncertainty in the law. Enough has been said to show the
principles by which courts are guided in expounding the law to
juries; but, unfortunately, jurors bring more of their prejudices,
feelings, and prepossessions to the determination of actions of this
nature than to other causes; and the result is a growing distrust in
legal proceedings as a vindication of injured reputation. There
have of late been many remedies suggested for this miscarriage of
justice; but some are too radical, and are, besides, not consonant
to our system. We suggest, however, that a partial remedy for
this defect might be given if the determination of such actions
were given to a select juryto what is known as a special jury,
which is now granted in certain cases requiring peculiar knowledge,
and where intricate and important questions are involved.*
Very frequently, in actions for libel, the question in a great
measure may depend upon a turn or trick of expression, a phrase of
peculiar signification, or some obscure or classical allusion, which
our ordinary jurors can hardly be expected to comprehend. There-
fore, in prosecutions for libel, especially against the press, a party
ought to have a positive right to demand a special or struck jury,
composed of a class of men of a higher order of intelligence
than those ordinarily called to serve upon juries. It should not
depend, as now in many States, on judicial discretion; it should
be a statutory right. The courts have on some occasions granted
the right to such a jury, as where the libel was against a public
officer in his official character.t In addition to this right, let such
actions have a precedence on the calendar, so that an injured party
may have speedy redress before the injury becomes irreparable, and
the charge works its blasting effect. At present, under the long
delay and continuances, a party may be irretrievably injured while
waiting for the slow proceeding of a court to give him reparation;
and thus a greater inducement is given to breaches of the peace,
by compelling an injured party to take into his own hands the vin-
dication of the wrong done him.
JOHN PROFFATT.
* 3 Blackstone, 357; and see Proffatt on Jury Trial, 71.
t Thomas V8. Croswell, 4 Johnsons Rep., 491.
NULLITY OF THE EMANCIPATION EDICT.
I HAVE been greatly interested in an article in the February
number of the North American Review, by President Welling,
on the Emancipation Proclamation. It presents the subject with
great ability and fullness of detail, and, as far as my memory goes,
it is the first article in an American periodical that has taken up
the subject upon principle.
The proclamation is a past matterwas superseded by the
amendment to the Constitution abolishing slaveryand it may be
asked why its character and effect need now be inquired into. But
it presents a great figure in history, and at the time it was issued
it was supposed by many to have abolished slavery throughout the
Union; and, doubtless, a great number are still of that opinion, and
the pen with which it was signed is preserved as a pious relic. It
is never right to allow a mistake to exist upon an important politi-
cal act, and I know of none in our history about which there has
been so much misconception. The proclamation presents no ques-
tion of constitutional law. It is to be looked at only with reference
to the nature of things, and to that universal public law which must
always coincide with the nature of things. If what the proclama-
tion assumed to do could be done at all, I see no constitutional ob-
jection to its being done by the President, as commander-in-chief,
in the absence of an act of Congress. But what it assumes to do
is something which neither the President, nor Congress, nor the
whole people of the loyal States, by an amendment of the Constitu-
tion, or in any other manner, could have effected.
This strong statement justifies a demand for a careful examina-
tion of the proclamation. There is no difficulty, it seems to me, in
its construction. The vital passage reads as follows: By virtue
of the power in me vested as commander-in-chief of the army and
navy of the United States in time of actual armed rebellion against
Richard H. Dana
Dana, Richard H.
Nullity of the Emancipation Edict
128-135
NULLITY OF THE EMANCIPATION EDICT.
I HAVE been greatly interested in an article in the February
number of the North American Review, by President Welling,
on the Emancipation Proclamation. It presents the subject with
great ability and fullness of detail, and, as far as my memory goes,
it is the first article in an American periodical that has taken up
the subject upon principle.
The proclamation is a past matterwas superseded by the
amendment to the Constitution abolishing slaveryand it may be
asked why its character and effect need now be inquired into. But
it presents a great figure in history, and at the time it was issued
it was supposed by many to have abolished slavery throughout the
Union; and, doubtless, a great number are still of that opinion, and
the pen with which it was signed is preserved as a pious relic. It
is never right to allow a mistake to exist upon an important politi-
cal act, and I know of none in our history about which there has
been so much misconception. The proclamation presents no ques-
tion of constitutional law. It is to be looked at only with reference
to the nature of things, and to that universal public law which must
always coincide with the nature of things. If what the proclama-
tion assumed to do could be done at all, I see no constitutional ob-
jection to its being done by the President, as commander-in-chief,
in the absence of an act of Congress. But what it assumes to do
is something which neither the President, nor Congress, nor the
whole people of the loyal States, by an amendment of the Constitu-
tion, or in any other manner, could have effected.
This strong statement justifies a demand for a careful examina-
tion of the proclamation. There is no difficulty, it seems to me, in
its construction. The vital passage reads as follows: By virtue
of the power in me vested as commander-in-chief of the army and
navy of the United States in time of actual armed rebellion against
NULLITY OF THE EAIANCIPATION EDICT. 129
the authority and Government of the United States, and as a fit and
necessary war measure, . . . I do order and declare that all persons
held as slaves within said designated States are, and from hence-
forth shall be, free; and that the Executive Government of the
United States, including the military and naval authorities thereof,
will recognize and maintain the freedom of said persons. The
States and parts of States which the President designates in the
proclamation were those which were beyond our military occupa-
tion and control, and he makes his proclamation in terms applica-
ble only to such.
To fully understand the application of the proclamation, we
must remind ourselves how the country then stood. The Southern
States were not in the attitude of an insurrection for redress of
grievances, or of rebellion against particular laws. They had de-
clared their absolute independence of the United States, and were
engaged in war against the United States for the maintenance of
that independence. Whether that independence stood or fell, was
to be determined by the result of the war. They had organized a
confederate republic, with armies against which our powers had
availed but little, and with a marine which gave us great trouble at
sea. The final result of the war was then doubtful, depending in
some measure upon the course which should be taken by the great
states of Europe with respect to the recognition of independence.
Our Government fully recognized a state of belligerency between
the two powers, and we accepted and acted upon the rules which
prevail in public war. As the act done by the President was pro-
fessed to be done solely as a war measure, by virtue of the
powers vested in him as commander-in-chief, and as the region
upon which it was to operate was a region beyond our military
occupation and control, and declared to be within that of the enemy,
the only question that we need ask is whether a commander-in-chief
can effectually do such an act, under such circumstances. Let us
return to the proclamation. It is not a military order to take
effect in the future. It is an edict purporting to operate from the
time it is given out, and to operate proprio vigore. The slaves
are~~ free. Its only reference to the future is a promise that those
slaves shall continue free from henceforth, and that the Execu-
tive Government of the United States, including the military and
naval authorities thereof, will not create and confer, but recog-
nize and maintain the freedom of said persons.
We may therefore treat the proclamation as an edict purport-
130 THE NORTH AMERICAN REVIEW.
ing to operate, by its own force and from the time of its signature,
the actual emancipation of all existing slaves beyond our military
control and occupation. It did not affect to operate at all upon
slaves within our military controL On the contrary, it studiously ex-
cludes them, reserving, in its designation of the regions upon which
it is to operate, those counties in the rebel States of which our
armies had obtained control. It must be also remembered that at
this time several of the border slave States were in the Union, their
senators and representatives being in Congress, their slave Constitu-
tions respected, the right of loyal masters to their slaves sustained,
and that slavery was not abolished in the District of Columbia nor
the fugitive-slave law repealed; and more than a year after this
time an act of Congress (February 24, 1864) gave to the loyal mas-
ter the one hundred dollars bounty for the slave which should be
enlisted in the army, and assumed to pay every loyal owner of a
colored volunteer in a loyal slave State a compensation of three
hundred dollars, and this provision was to retroact, and this act had,
of course, the approval of the President.
To show how completely the proclamation was assumed to ef-
fectuate emancipation from its date, the President enjoins upon all
persons so enfranchised to abstain from all violence, unless in case
of necessary self-defense, and recommends them in all cases, when
demanded, to labor faithfully for reasonable wages.
The rules of universal public law give to an invading conqueror
certain powers over such territory of his enemy as he holds with a
certain degree of military occupation and control. Among these
powers is one respecting the emancipation of such slaves as are
within that territory, and under his military controL It is not ne-
cessary to inquire nicely what kind and degree of occupation and
control are required to bring these powers into force, because the
proclamation is confined to territories beyond our control, and des-
ignated as within the control of the enemy. And for the same rea-
son it is not necessary to inquire nicely into the limits of the pow-
ers of the conquering invader over the slaves in question. It is
sufficient to say that this proclamation assumes to give them imme-
diate and absolute emancipation, in spite of the condition or vicissi-
tudes of the war. It is also sufficient for our purpose to say that
no emancipation of slaves can be effected under the war power,
except upon the condition of successful occupation. It is not neces-
sary to cite any authorities for such a point. War is a contest of
force, and nothing can be done under the war powers of any gov
NULLITY OF THE EffANCIPATION EDICT. 131
eminent which is not effected and sustained by force. The same
reasoning applies to the Czar of Russia as to the President or the
Congress. The Czar, by his edict, freed every serf in Russia; but
even he, whose will is law, could not have emancipated a serf in his
enemys occupation. The proclamation was in the nature of legis-
lation, an edict professing to rest upon war powers; but the thing
it undertook to do can not be done in that way. It may be done by
adequate force, subject to the contingencies of war, but it can not
be done by anything which is a mere expression of will, even if that
will be the will of an absolute sovereign. It was our policy to close
all the Southern ports to foreign trade. It is surprising to re-
member how many persons thought at first that that could be ef-
fected by an act of Congress, and had to be taught that legislation
could effect nothing beyond the line of bayonets, and that we could
only close the ports by a blockade. So as to all other attempts to
substitute will for force in an actual war. No one supposed the
President could decree a victory, or proclaim territory to be within
our military control and subject to our authority, which was not so
in fact. Yet it is somewhat surprising to see how general has been
the misapprehension respecting the character and effect of this
proclamation. But, on further consideration, it is not matter of
so much surprise. This leads us to revert to the state of things at
that time, so well set forth by President Welling.
The border slaveholding States in the Union required careful
treatment, and received great consideration. The President thor-
oughly adopted their policy, the object of which was to restore
the Union without affecting slavery. In the free States there was
a large political party supporting this policy, which, acting with
the border slave States, it was feared might at any time obtain the
control of Congress, and make a peace favorable to slavery. While
this policy was in the ascendant we made little progress, suffered
great reverses, and the public mind was in great agitation. The
opinion increased rapidly that slavery was the real question at issue;
that it formed the strength and gave the materials to the enemy,
and was the one thing that held them closely togethermore
closely than anything could hold the North together, unless it
should be a determination to destroy slavery under the military
power. President Welling has described how great was the pres-
sure which was brought to bear upon the President in this direc-
tion, and how deeply it affected him. We all remember that what
was demanded was a change of the policy of the war from the Ken-
132 THE NORTH AMERICAN REVIEW.
tucky policy to the Massachusetts policy; from that of the border
slave States and what may be called the border politicians in the
free States, to that of the people who believed that nothing could
be done effectually until we took hold upon slavery.
To this pressure the President yielded and issued the proclama-
tion. Was this proclamation what was expected? It seems, from
President Wellings quotations, that Mr. Chase, who had been most
earnest for the change of policy, had limited his expectations by
the rules of public law, and looked only for a military order which
should carry emancipation wherever the flag went, and was sur-
prised at the position taken. Mr. Seward seems to have favored
practical emancipation, but to have opposed a proclamation. From
Mr. Welless letters, it is plain that he did not advise it. It would
seem, therefore, that in this, as in many other cases, the Cabinet
was not consulted. I believe that, if the President had issued a
proclamation in the form of a military order, requiring all slaves
to be emancipated as fast and as far as the flag advanced, and
pledging to the emancipated slaves our utmost efforts to secure
them in their freedom, and if he had expressed it with that power
and pathos of language of which the untutored Abraham Lincoln
was a master, it would have answered the expectations of the coun-
try, given him the just fame of a liberator, and raised no question
under public law.
I remember that, after the preliminary proclamation of the 22d
of September, 1862, I had an interview with Mr. Sumner upon the
subject, just before his return to Washington. It was plain that
the final proclamation was to come, and I feared, from the prelimi-
nary, that it would take the form it did. I presented to him sub-
stantially the objections which are now made, but I could not se-
cure from him a serious consideration of the objections. He was
under great excitement, and, it seemed to me, was under the impres-
sion that there was a necessity overruling all other considerations
for freeing all the slaves in the country, and that the proclamation
would give them the status of freedom. I can not but think that
if Mr. Pierce shall continue his biography to the year 1863, we
shall have more light than we now have as to who is responsible for
the position taken in the proclamation, and for the pressure which
led to its adoption. It is plain that Mr. Lincoln himself, in urging
afterward the adoption of the amendment to the Constitution
abolishing slavery, doubted the effect of his proclamation. A morel
careful examination of those biographies and letters which have
NULLITY OF THE EMANCIPATION EDICT. 133
lately been brought to light may show whether he was not subject
to the same doubts at the time he issued it. I talked with Mr.
Seward on the subject after the proclamation appeared, but he
made no explanation, and when I asked him why, if it was simply A
a war measure by the commander-in-chief, he countersigned it as
Secretary of State, he replied that that was a compromise, not say-
ing between whom or what, and I did not pursue the subject.
The slaves of the South seem to have made no mistake as to
their status. They knew they were not free while their masters
held them and the territory. They looked to the gunboats and the
Stars and Stripes, and regarded the proclamation only as a promise
which would fail or be made good according to the issue of the war.
As to the people of the North, they were in no humor to reason
too precisely upon the event. They were impatient under the ex-
isting policy, and looked for a change. They saw that change in
the proclamation, and cared little in what form it came or what else
it undertook to do. They had been disgusted by the advice that
had been offered them on constitutional questions by over-technical
or semi~loyal men. Jurists had advised that the prize courts were
unconstitutional, that no property could be taken, at sea or on land,
except in the way of penalty for treason, after a jury-trial; that
we could not blockade our own ports; that though an army and a
militia were constitutional, volunteers and conscriptions were not;
and, at the bottom of all, that the republic could not coerce a
State. It is little wonder, therefore, that they were impatient of
any criticism upon the proclamation. On the other hand, unques-
tionable patriots, educated in a narrow school of strict construction
chief among whom was Mr. Thaddeus Stevenswere telling the
people that the only way to save the Union was to run the Consti-
tution ashore; and, to ease the conscience of doubters, the phrase
extra constitutional was inventeda jhrase which, in logic,
meant nothing, and was never heeded by men who studied the Con-
stitution in the light of the letters of The Federalist, the judg-
ments of John Marshall, the essays of Story, and the speeches of
Webster.
Fortunately, the proclamation was never brought to a test.
There can be little doubt that foreign states and our own judiciary
would have treated it as ineffectual. When the Southern armies sur-
rendered and dispersed, and the Confederate Government had fallen
through and was abandoned, and we were in military occupation of
all the strongholds of what had been, in the sense of the laws of
134 THE NORTH AMERICAN REVIEW.
war, enemy territory, we were competent, under the rules of war,
to emancipate every existing slave. And no doubt the proclama-
tion of January 1, 1863, though such were not its terms, brought
about a system of progressive military emancipation, taking effect
as we advanced. But for the prohibition of slavery thereafter in the
conquered States, under their Constitutions, as well as in the loyal
States, very different action was required. The abolition of the
slave system, as it stood in the Constitutions of so many States, was
beyond the reach of the mere military power of the President or of
Congress. It called for the ultimate, sovereign legislative action
of we, the people of the United States, in the form of an amend-
ment of the Constitution; and this, when adopted, precluded all
question as to attempted past emancipation or abolition by procla-
mation.
I should regret extremely if what I have felt obliged to say
should lead any one to think me disposed to join in attempts to de-
tract from the fame of Abraham Lincoln. I never failed to sustain
his Administration, when at one time the conservatives, and at
another the radicals, stood in threatening or dubious attitudes.
His fame as a statesman, an orator, and a liberator, as a man of
kind heart and serious thought, is established. Nothing can be
added to it by fiction, and it would be simply fiction to represent
to the people that the proclamation, as conceived and issued, abol-
ished slavery or emancipated a slave. Knowing, as all do, of the
powers of Mr. Lincolns mind and the sincerity of his purpose, we
can not but earnestly desire that further research may furnish satis-
factory explanations of what is now a curiosity of history.
RICHARD H. DANA.
THE CENSUS LAWS.
IF the object of the framers of the Constitution had been to form
either,a consolidated Government, or a confederation of equal sover-
eign states, the general enumeration of all citizens would not have
been a necessary provision of fundamental law. But since the
States composing the Union are regarded as equal units in certain
views and for certain purposes, while for others their rank and
weight are determined by the number of their inhabitants, it became
a political necessity to provide for a census at regular intervals.
Advantage was early taken of the machinery created by law for
this purpose, to gather in addition some statistics of industry and
mortality. Before the close of the last century, the American
Philosophical Society, of which Thomas Jefferson was president,
memorialized Congress on this subject, representing that the de-
cennial census offered an occasion of great value for ascertaining
sundry facts highly important to society and not otherwise to be
obtained. It therefore prayed that the next census might be so
taken as to present a more detailed view of the inhabitants of the
United States under several different aspects. A similar memo-
rial was presented by the Connecticut Academy of Arts and Sci-
ences, through its president, Timothy Dwight.
Attention to the possibilities of the census having thus been
drawn by thoughtful men, a series of tentative extensions of the
work has followed. The population schedule was considerably
enlarged in 1800, and in 1810 the Secretary of State, then charged
with the execution of the work, made the first systematic endeavor
to obtain the statistics of the industries of the country. Lack of
experience and organization rendered the results of little value, and
it was not until1840 that any reasonable measure of exactness was
obtained. The importance of the subject was, however, now so
generally recognized, that in 1849 the law was carefully remodeled
Charles F. Johnson
Johnson, Charles F.
The Census Laws
135-142
THE CENSUS LAWS.
IF the object of the framers of the Constitution had been to form
either,a consolidated Government, or a confederation of equal sover-
eign states, the general enumeration of all citizens would not have
been a necessary provision of fundamental law. But since the
States composing the Union are regarded as equal units in certain
views and for certain purposes, while for others their rank and
weight are determined by the number of their inhabitants, it became
a political necessity to provide for a census at regular intervals.
Advantage was early taken of the machinery created by law for
this purpose, to gather in addition some statistics of industry and
mortality. Before the close of the last century, the American
Philosophical Society, of which Thomas Jefferson was president,
memorialized Congress on this subject, representing that the de-
cennial census offered an occasion of great value for ascertaining
sundry facts highly important to society and not otherwise to be
obtained. It therefore prayed that the next census might be so
taken as to present a more detailed view of the inhabitants of the
United States under several different aspects. A similar memo-
rial was presented by the Connecticut Academy of Arts and Sci-
ences, through its president, Timothy Dwight.
Attention to the possibilities of the census having thus been
drawn by thoughtful men, a series of tentative extensions of the
work has followed. The population schedule was considerably
enlarged in 1800, and in 1810 the Secretary of State, then charged
with the execution of the work, made the first systematic endeavor
to obtain the statistics of the industries of the country. Lack of
experience and organization rendered the results of little value, and
it was not until1840 that any reasonable measure of exactness was
obtained. The importance of the subject was, however, now so
generally recognized, that in 1849 the law was carefully remodeled
136 THE NORTH AMERICAN RE VIE W
in accordance with the recommendations of several eminent statisti-
cians, and the scope of the census was enlarged to include all the
varied uses to which modern statistics are applicable. The control
of the work was placed under the newly created Department of the
Interior, the office of Superintendent of the Census was created, and
the value of accurate social, industrial, and civil statistics received
a distinct legal recognition.
The census of the United States is an unforeseen development of
the germ contained in the Constitution, and the word itself signifies
for Americans much more than it did originally. The results of
the inquiry which at first were contained in an octavo pamphlet of
fifty-two pages, and procured at an expense of $44,000, were em-
bodied in 1870 in three large quartos .and a series of maps and
graphic representations, costing in all $3,300,000. Our decennial
contribution to the data of political science is in no wise unworthy
of a great nation, although perhaps we can not claim to deserve the
eulogium of Morean de Joun6s when he declared that the United
States presented a phenomenon without parallel in history, that of a
people who instituted the statistics of their country on the same
day when they founded their government, and who regulated by
the same instrument the census of the inhabitants, their civil and
political rights, and the destinies of the nation.
The new and valuable features of the law of 1850 were the cre-
ation of a separate bureau in the Department of the Interior with a
single responsible head, and the authoritative recognition of the
importance of industrial and economic statistics. The growth of
the work was like the growth of the country, in magnitude chiefly.
No organic change was made in the machinery, though experience
had shown that the plan was radically faulty. The execution of
the work was still charged upon the United States marshals, and
carried out by deputies who were not directly responsible to the
Superintendent. This necessitated, of course, making the judicial
districts the primary geographical divisions or census districts; an
obviously inadequate arrangement, for in the thickly settled parts
of the country the regular work of the marshals office was too im-
portant to allow them to give the necessary supervision to new and
extra duties, and in other places the districts were so large that it
was impossible to complete the enumeration in the one hundred
days contemplated by the law. In consequence the time was neces-
sarily extended, and full returns were not received until nearly a
year had elapsed from the inception of the work. The compen
THE CENSUS LA IFS. 137
sation was unequal, and the provision for extra pay was an allow-
ance for mileage at the rate of ten cents a mile, the whole number
of miles traveled to be ascertained by multiplying the square root
of the number of dwelling-houses by the square root of the number
of square miles in the subdivision, a formula which, though it has
a scientific sound, is evidently too rigid and clumsy for practical
use, and hardly needs the high authority of Professor Peirce to be
pronounced radically defective and vicious in its underlying
mathematical principle. In spite of these disadvantages the cen-
sus of 1870 is a monument of technical and executive ability. Its
merits are largely due to the hereditary talent and energy of the
Superintendent, who by a good fortune rare to this republic of
political patronage, brings his ripened culture and experience to
the supervision of the present one. It is a case in which there can
be no rational objection to a third or fourth term.
The law under which the census of 1880 is being taken presents
some important modifications, the need for which was clearly shown
in General Walkers last report. It still leaves the census office as
a bureau of the Department of the Interior, the Superintendent to
be appointed by the President and confirmed by the Senate, the
clerks and computers to be appointed by the Secretary. The Super-
intendent divides the country into districts, and the President ap-
points a supervisor for each district, who also must be confirmed by
the Senate. The responsibility would be less divided if the Secre-
tary or the Superintendent appointed the supervisors; but the
method of the law is perhaps more in accordance with our theory
of the executive. It has worked well, because in 1880 the Presi-
dent and Superintendent were in accord in supposing that the
duties of a supervisor were to supervise the taking of the census,
and not solely his own canvas for some petty office. But it is not
impossible that we may have in the future a President who may
regard offices as political rewards.
The supervisors subdivide their districts, and employ enumera-
tors with the consent of the Superintendent. By a regulation of
the office, every enumerator is required to report every day by
postal card to his supervisor, and also to Washington, the amount
of work he has done during the day. The effect of this check on
indolence and procrastination will be very great. By it the Super-
intendent has direct control over the personnel of his entire corps,
and will be enabled to hold his work well in hand, and to see that
every private of his great army is on the march. An enumeration
VOL. cxxxl.No. 285. 10
138 THE NORTH ANERICAN REVIEW.
to be thorough must not be desultory or protracted. General
Walker possesses in a marked degree the qualityperhaps the most
valuable one in an executive chiefof inspiring his sul~ordinates
with a portion of his own zeaL His bulletins of instruction are
models of their kind, and go far toward informing the most igno-
rant with some idea of what a census should be.
The law provides that the enumerators shall be selected with-
out reference to their political or party affiliations. This is so
new and startling an idea in American politics, that in some dis-
tricts no Democrat made application. They thought there was
some catch in jt. They feared the Greeks, even when offering
gifts.
The second important change in the law is contained in the sec-
tion which authorizes the Superintendent to withdraw, whenever
he shall deem it expedient, the schedules for manufacturing and
social statistics from the enumerators of the several subdivisions,
and to charge the collection of these statistics upon experts and
special agents, to be employed without reference to locality, and to
employ experts and special agents to investigate, in their economic
relations, the manufacturing, railroad, fishing, mining, and other
industries of the country, and the statistics of telegraph, express,
transportation, and insurance companies. This introduces into
the theory of census-taking the modern idea of division of labor,
and enlarges its scope far beyond the primary conception of a mere
instrument to gather material. The machinery, which hitherto has
increased in magnitude only, now suffers an organic change, and is
differentiated into separate branches adapted to different functions.
Its powers for the higher work of classification and induction are
developed. In consequence, its efficiency in every department is
increased. The enumerators are relieved from a perplexing part of
their duties, and are able to keep their minds fixed definitely on the
special objects they are best fitted to accomplish. The result must
be a more rapid and perfect enumeration, and presumably a more
thorough and scientific examination of special branches of industry.
And further, it is probable that the entire cost will be less than
under the former law.
Under this section, the following subjects have been committed
to special experts:
The manufacture of cotton, to Edward Atkinson; the culture of
cotton, to Professor E. W. Hilgar; the culture of tobacco, to John
C. Killibrew ; mining, west of the Mississippi, to Clarence King;
THE CENSUS LA WS.
139
mining, east of the Mississippi, to Raphael Pumpelly; manufac-
ture of woolens, to George W. Bond; coke, glass, and wages in
manufacturing and mining communities, to James D. Weeks; man-
ufactures of iron and steel, to James D. Swank; the fisheries, to
Professor Goode ; prisons, to F. H. Wines; cities in their indus-
trial aspects, to Professor William Trowbridge; cities in their san-
itary and civil aspects, to Colonel Waring; railroads, to J. H.
Goodspeed; the production and transportation of meat, to Clarence
Gordon; agriculture, to J. R. Dodge; forestry and the lumbering
industry, to Professor Charles Sargent; ship-building, to the Hon.
John Lynch; and silk industry, to William C. Wyckoff.
The names of the above gentlemen are a sufficient guarantee of
the wisdom of the law, and, if nothing more than a monograph on
their specialties were expected from them, it would be a notable
addition to the sum of existing knowledge.
The statistics of the production of gold and silver have hereto-
fore been gathered, by reason of the remote and difficult nature of
the country where they are mined, chiefly by correspondence; a
most exasperatingly insufficient method. The successful establish-
ments are as desirous of concealment as the unsuccessful ones are
of exaggeration. The reports of mints and express companies fur-
nish a check on the totals, but the method of sending on to the
spot practical experts armed with authority, whose characters are
above suspicion, and who are acquainted with the business and
with the peculiar types of humanity developed by it, is the only
means of procuring trustworthy details. In view of the fact that
mining investments are attracting more attention than ever before,
and that they are generally made without the slightest reference to
real values, the worth of Mr. Kings forthcoming report can hardly
be exaggerated.
Mr. Pumpelly will furnish, in addition to full statistics of pro-
duction, a complete set of analyses of the iron-ores of the United
States, from samples taken by his experts. These results will not
only be interesting in a scientific point of view, as indicating the
distribution of the iron-ores, but will furnish a guide to the iron-
master as to where he may look for the various ores he needs to
combine, and where they can best be brought together for reduc-
tion. Hitherto, the State geological surveys have furnished the
most reliable information on these points. They have generally
been under the direction of competent and painstaking geologists,
but their standpoints and nomenclature have differed, and their
140 THE NORTH AMERICAN REVIEW.
efficiency has been hampered by insufficient means and by the
necessity of obtaining immediate results. It is to be hoped that
unworthy and disheartening jealousies will not tie the hands of the
newly established United States geological survey, which aims at
c& )rdinating and perfecting the work of the State surveys, now for
the most part abandoned.
In addition to statistics proper, several of the special agents
gather materials for a general survey of industrial communities and
the relations between laborers and employers, as illustrated by trades-
unions, strikes, cot~perative associations, etc. The precarious and
jealous nature of the union between capital and labor is the most
alarming characteristic of modern society. A true understanding
of the conditions is the first requisite of any attempt at amelioration.
The attention of the public is generally called to labor organizations
under circumstances likely to embitter feelings on both sides. The
imperfect reasonings and warped judgments of the men, and the
violence that is too apt to characterize their actions, prevent their
case from being fairly presented. In fact, the public may be said
to be substantially ignorant of this most important subject. The
great problem for us is how to make such use of our freedom as
to advance to better relations between capital and labor; and the
great force of modern civilization is American public opinion.
Political economy is so obscure and complex a subject that in-
ductions can be drawn in it only from the widest range of data.
At present, the United States offers the best field for progress in this
science. Its reasoners have generally dealt with abstract conditions,
the A who sells goods to B, and the C who employs D, forgetting,
apparently, that A and B are not equal factors, but bundles of preju-
dice and ignorance, whose action can not be averaged or predicted.
Our country, from the simplicity of its social structure, the mobility
and versatility of its citizens, and the fact that it is the largest area
in the civilized world where trade is free, is the place where the
natural laws of political economy work with the least friction, and
where new discoveries will be most readily made. But for that
very reason absolutely reliable statistics are especially valuable to
the United States.
Whatever the success of the census now in operationand there
is no reason to doubt that it will be very encouragingone thing is
assured: it will demonstrate what are the best methods. The inqui-
ries of the special agents are based on several different plans, and
their combined experience must result in an increase of technical
THE CENSUS LAWS. 141
skill and knowledge of gathering statistics. It is no small achjeve-
ment to bring all the details of an organization like the census office
to the highest point of working efficiency. Methods, theoretically
perfect, and which would perhaps give accurate results in Connecti-
cut, will fail if applied to Georgia. Questions which seem simplest
will prove misleading even to men familiar with the subject. It is
as dangerous to ask too much as to ask too little. Trade jealousies
will be aroused when least expected, so as to nullify some branches
of the inquiry. Hitherto the experience of each successive census
has served, in some sort, as a warping port by which to drag the next
up to a higher point of excellence. The census of 1880 will be a
practical test of an improved method, whose working details must
be perfected by experience.
CHARLES F. JOHNSON.
N
PRINCIPLES OF TAXATION.
THE object of the present article is to consider those features of
our plan of taxation which stand in need of such light as may be
shed upon them by political economy. Our attention will be con-
fined to those points which seem of most practical importance in the
present state of public opinion, and no exhaustive discussion of any
special branch will be attempted. We shall begin with sqme prac-
tical hints respecting the objective points at which arguments on
this subject are sometimes aimed.
Perhaps the most common error of current thought on the sub-
ject consists in considering special kinds of tax as being good or bad
in themselves. If the question were tax or no tax, then each sys-
tem of taxation could be separately disposed of on its own merits.
But taxes of some sort must be levied in some way, because the
support of government is a necessity. Our conclusions must there-
fore be drawn by comparing taxes of different kinds, and not by
saying that this system is bad or that one good in itself. The only
alternative of taxation in itself is borrowing; but this alternative
is only temporary, because the money borrowed must eventually be
paid by the levying of taxes. Hence it is not at all to the point to
prove that any special form of taxation is bad: we may admit at
the outset that every possible form is objectionable, without doing
away with the necessity of making a choice of evils.
The first subject which we propose to consider is that of the
distribution of the burden under different systems of taxation. In
ordinary language, taxes are divided into direct and indirect taxes.
Direct taxes are supposed to be those levied on the individual him-
self, or his property, in such manner that he must personally bear
the burden of all he pays. Indirect taxes are those levied on the
products he expects to sell to others, and are therefore such, it is
supposed, as he may charge to his customers. We frequently hear
Professor Simon Newcomb
Newcomb, Simon, Professor
Principles of Taxation
142-157
N
PRINCIPLES OF TAXATION.
THE object of the present article is to consider those features of
our plan of taxation which stand in need of such light as may be
shed upon them by political economy. Our attention will be con-
fined to those points which seem of most practical importance in the
present state of public opinion, and no exhaustive discussion of any
special branch will be attempted. We shall begin with sqme prac-
tical hints respecting the objective points at which arguments on
this subject are sometimes aimed.
Perhaps the most common error of current thought on the sub-
ject consists in considering special kinds of tax as being good or bad
in themselves. If the question were tax or no tax, then each sys-
tem of taxation could be separately disposed of on its own merits.
But taxes of some sort must be levied in some way, because the
support of government is a necessity. Our conclusions must there-
fore be drawn by comparing taxes of different kinds, and not by
saying that this system is bad or that one good in itself. The only
alternative of taxation in itself is borrowing; but this alternative
is only temporary, because the money borrowed must eventually be
paid by the levying of taxes. Hence it is not at all to the point to
prove that any special form of taxation is bad: we may admit at
the outset that every possible form is objectionable, without doing
away with the necessity of making a choice of evils.
The first subject which we propose to consider is that of the
distribution of the burden under different systems of taxation. In
ordinary language, taxes are divided into direct and indirect taxes.
Direct taxes are supposed to be those levied on the individual him-
self, or his property, in such manner that he must personally bear
the burden of all he pays. Indirect taxes are those levied on the
products he expects to sell to others, and are therefore such, it is
supposed, as he may charge to his customers. We frequently hear
PRINCIPLES OF TAXATION. 143
it said, in a very general and sweeping way, that whenever goods or
services of any sort are taxed, the owner of the goods, or the per-
former of the services, has only to charge the tax to his custom-
ers, and thus free himself of its burden. But the power of doing
this is something to be accurately investigated, and not taken for
granted in the sweeping form it often assumes.
The question is, Out of whose pocket will any given tax ulti-
mately come, or who will be the real sufferers, not only with respect
to the money which they have to pay, but with respect to the rela-
tion between their income and the cost of the commodities they
have to consume? The total amount of taxes contributed by each
individual will comprise not merely the obvious items of money
paid to the collector and increased cost of articles necessary to com-
fort, but also a possible disturbance of the demand for his commodi-
ties, or a change in his power of acquiring wealth from his fellow
men. In fact, it not infrequently happens that the levying of a tax
puts money into the pockets of individuals. A familiar instance of
this is seen when a new or increased tax is levied upon goods
already in the hands of manufacturers or dealers. In this case, the
market value of the goods may be suddenly increased by the whole
amount of the tax without any effort whatever on the part of the
holders. It is evident, in such a case as this, that the consumers
will at first be sufferers without the government gaining anything.
I cite this merely as an illustration.
The power of charging a tax to customers will depend upon the
nature of the things on which it is levied, or upon the subjects of
taxation a classification of tax-systems with respect to these sub-
jects is therefore necessary. For our present purpose we may di-
vide most of the taxes levied under our system into three distinct
classes, namely:
a. Ta~res levied on Individuals.
These include not merely poll-taxes, which are now nearly ob-
solete, but taxes of all sorts which are levied either on special per-
sons or on every one, without respect either to the value of his
property or of his income. The distinctive feature of such a tax is,
that it is independent of the ability of the payer. The principal
taxes of this sort now existing are the licenses required for the
practice of particular trades or professions. It will be observed
that the license required of a liquor-dealer or tradesman of any
sort is not dependent upon the amount of his possessions or upon
144 THE NORTH AMERICAN REVIEW.
his ability, but is demanded of him simply as an individual engaged
in a certain business. This is the peculiarity of what we may con-
sider a personal tax.
(3. Taxes o~ Production.
These include the excise and customs duties on productions of
specified classes which, under our system, form almost the sole
revenue of the General Government. Customs duties are included
with those on home products because the fact that the production
is that of a foreigner makes no difference in the application of the
general principles we are to elucidate. The income-tax is to be
included under this head, because each man~s income is to be re-
garded as the equivalent of his entire productiveness, whether it is
derived from his own powers or from an hereditary capital.
y. Taxes on Accumulated Property.
There is this very important difference between a tax on pro-
duction and one on accumulation: that the former is paid only
once on each dollar of value produced, whereas, under the latter,
every dollar saved has to make an annual contribution to the pub-
lic treasury. No matter how large a percentage we levy on pro-
duction, it can be borne, because the producer will always have the
balance free from all future taxation so long as he chooses to keep
it. But if the tax on accumulated capital should exceed the rate of
profit to be derived from its use, there would be no object what-
ever in saving it, since the proceeds of everything one saved would
have to be given up to the Government.
Taxes of each class are to be subdivided according as they are
levied; firstly, on sums total expressed in money without respect to
the particular things prcduced or possessed; or, secondly, on spe-
cially designated products. Among taxes on Woduction an excise
and customs duty is levied on special productsas tea, liquor, or
tobacco. Such a duty, levied on the total product without respect
to the things produced, would bc in effect the equivalent of an
income-tax. Again, we must distinguish taxes levied on special
kinds of property, as real estate, bonds, or moneys, from those levied
on the sum total of ones possessions without respect to the form in
which those possessions are held. Thus, all three of the classes we
have described may be divided into two orders: the one being those
of which the subjects are sums total ; the other those of which the
subjects are specially designated persons or products. This double
PRINCIPLES OF TAXATION. 145
classification will be made more clear by presenting it in a tabular
form.
CLASSIFICATION. ORDER A.Taxes on totals, ORDER B .Taxes confined
or unlimited taxes. to designated subjects.
CLASS c.Taxes on Tax on every one of a cer- Taxes on designated occupa.
persons. tam age or sex (poll-tax). tions (licenses).
CLASS ~.Taxes on Tax on total production of Taxes on designated prod.
production. every individual (income. ucts only (customs, excise,
tax). duties).
CLASS y.Taxes on Taxes on ones whole pos. Taxes on designated kinds
accumulation. sessions, without regard of wealth.
to their character.
The reason of the distinction between orders A and B in all
classes of taxes, is that when taxes are levied on totals of any kind,
as in order A, they can not be lawfully evaded; while, when levied
on especial productions or especial kinds of property, as in order B,
it may be possible for one to confine himself to the production of
untaxed articles or to put his wealth into an untaxed shape. For
instance:
A tax on all males over twenty-one years of age can not be evad-
ed. But a tax on liquor-sellers can be evaded by the liquor-seller
giving up his occupation. A duty on imported cloth can be evaded
by ceasing to import it, and one on native cloth by the manufac-
turer engaging in some other pursuit. But a tax on gross or net
profits can not be evaded by a mere change of pursuit. A tax on
carriages can be evaded by putting money in something else than
carriages, but, where gross capital is taxed, a mere change of invest-
ment will not bring relief.
In our consideration we shall begin with taxes levied on desig-
nated things (order B), because the effects of such taxes can be
most readily traced. Let us suppose a certain commodity, no mat-
ter what, which we may call C. In an untaxed society a certain
quantity of C will be produced and sold in a year. Let us call Q
this quantity and P the price per unit of quantity, so that P is the
untaxed price. The total value of the product will then be Q X P.
Now, suppose a tax to be levied on C. The common impression is,
that the manufacturers of C will simply add the tax to the price P,
146 THE NORTH AMERICAN REVIEW.
and thus collect from their customers all that they pay the Govern-
ment. But the producer may find a difficulty or disadvantage in
thus increasing the price of his product. The subject seems to be
thought of as if any producer could at will charge any price he
pleased for his services. Now, we know that, as a general rule, the
price at which any individual sells his services or his goods is the
highest he can advantageously command. He may take into con-
sideration not merely his own immediate interests, but also the
future interest of his own trade or profession ; but, whatever his
objects, we may be sure that his price is the maximum which will be
consistent with their attainment. Hence, before the tax is levied,
the price P is the highest which the manufacturer can command for
his product without incurring some disadvantage. It is also clear
that he can not advantageously add the whole tax to his price un-
less his competitors, who are also making the commodity C, unite
with him in charging the higher price. If he did his custom would
go to them. We must, therefore, inquire how, under the varying
conditions which affect the supply and demand of different com-
modities, the equilibrium of price, supply, and demand, will be re-
stored when the tax is levied.
We may assume that, in the first place, all the producers of a
taxed article will attempt to add the tax to the price. It this addi-
tion caused no falling off in the demand, it would be made without
difficulty, and production and consumption would both go on undis-
turbedthe price being raised by the whole aihount of the tax.
But we know very well that this is not the rule. Every increase in
the price of a commodity leads people to economize in its consump-
tion, either by going without the gratification which it yields, or
by substituting some cheaper commodity for it. If this falling off
in the demand were the same for all commodities, the problem
would be a comparatively simple one. But we know that it is not.
There are some articles the consumption of which is but slightly
affected by changes in price. Such are tobacco, stimulants, condi-
ments, medicines, and in general all commodities the habit of con-
suming which becomes deeply rooted, and for which substitutes can
not be found.
There are other commodities, the total consumption of which
will fall off rapidly as the price is raised. Among these we may
include all luxuries which people can dispense with and not suffer
serious inconvenience. Articles of food for which substitutes can
be found, and articles of clothing which can be made to wear longer,
PRINCIPLES OF TAXATION. 147
may be included in this class. These are the things on which
people economize when they feel the pressure of hard times.
To give precision to our ideas, we may call those articlesthe
consumption of which rapidly diminishes when the price is raised
Bensitive, and those of which the consumption is but slightly affect-
ed by changes in price, insensitive. Of course, we can not thus
form two completely distinct classes, because different commodities
have every degree of the quality which we call sensitiveness. The
difference is therefore one of degree, not of kind. It is upor~ the
degree in which a co7mmodity possesses this quality that its taxa-
bility will depend.
In the case of inse~sitive articles there is no difficulty in collect-
ing the tax from the consumer. The producers, on adding the tax
they have paid to the price, find no falling off in the demand, and
thus the levy of the tax causes no disturbance in the market. The
economical questions connected with the taxation of such articles
are therefore very simple, and the latter are in all countries the
favorite subjects of taxation.
In the case of sensitive articles, the attempt on the part of pro-
ducers to add the whole tax to the price will result in a falling off of
the demand. One of two things must then follow: either the pro-
ducers must submit to a smaller profit, paying the whole or a part
of the tax out of their own pockets; or, the production must be
reduced until the article becomes so scarce that consumers are will-
ing to pay the tax. In the latter case some of the producers must
seek another employment. Which of these alternatives shall be
accepted will depend on the conditions of production. As a general
rule, neither of them will be accepted in its entirety, but the com-
pensation will be effected partly by the falling off of production,
and partly by the remaining producers assuming a portion of the
burden of taxation. But there may be any approximation toward
one extreme or the other, and we have next to inquire into the con-
ditions of final equilibrium.
Whether the equilibrium shall be restored by diminishing the
number of producers, or by the latter paying the tax themselves
and selling at the old price, will depend upon how far the elements
necessary to production are, in an economic sense, monopolies. We
call to mind that an economic monopoly consists not simply in a
grant of some privilege, but in the possession of any special knowl-
edge, faculty, device, or machine whereby one is enabled to gain
larger profits than he could gain in any other pursuit. If the prod-
148 THE NORTH AMERICAN REVIEW.
uct is a complete monopolyif, for instance, it is a patented article,
or if it is a thing which only one person or combination has a knowl..
edge how to makeone effect will be produced. If it is a thing of
which every one can engage in the production without either legal
or practical difficulty, another effect will be produced. We shall
find the result to be that the more the production of the article is a
monopoly, the greater the proportion of the tax which will be paid
by the producer.
At first sight this may appear paradoxical. The ordinary idea
will be that the producer of the monopolized article, being quite at
liberty to fix his own price, can most readily charge the whole tax
to purchasers, and that, therefore, it is upon a monopolized article
that the tax will most surely be paid by the producer. But we
must remember that without the tax the producer of the patented
article is supposed to charge the highest price which he can com-
mand, or which it is to his advantage to charge. He will therefore
find it to his disadvantage to increase the price by the whole amount
of the tax. Possibly the falling off in the demand might be so
great as to entirely destroy his business should he attempt such a
course. Any one possessing a real and effective monopoly is, with-
out the tax, making a more profitable use of his monopolized pow-
ers or privileges than he could make in any other business, and is
ther& fore able to pay the tax without being driven out of business.
On the other baud, where competition is entirely free, it is to be
assumed that everything is being sold at the lowest price for which
it will pay to produce it. Therefore, when we tax such produc-
tions, those producers who are making the minimum of profit will
not be able to pay the tax at all, and, if they find by trial that they
can not collect it from their customers, they will have to go out of
business. Such a number will therefore go out of business that the
diminished production shall correspond to the demand with the in-
creased price.
The result to which we are led may be summed up as follows:
There are two extreme cases in which a tax upon special products
is paid entirely by the consumer, namely:
1. When the product belongs to the insensitive class on which
the consumer will not economize, and in which demand is therefore
undiminished by an increase of price.
2. When the products taxed are those of which the price is, by
free competition, brought down to the lowest limit, so that produ-
cers can not afford to pay any part of the tax, and, when they find
PRINCIPLES OF TAXATION. 149
demand falling off in consequence of increased price, will be com-
pelled to betake themselves to some other business. But the agen-
cies by which the tax is thrown upon the consumer are very different
in the two cases. In the first case, there is no diminution of produc-
tion and consumption; in the second, the tax is added to the price
through scarcity, so that in this case there is a diminution of pro-
duction which does not occur in the other.
These two cases are each an extreme of a series. On the one
side, they are at the end of the series of products possessing a con-
tinually diminishing degree of sensitiveness; on the other side, they
are at the end of the series of products marked by a continual
decrease in the number and importance of monopolized elements
entering into their production. The rule is therefore that while, in
these extreme cases, the tax may be wholly paid by the consumer, in
general a greater or less portion, depending upon the conditions of
production and consumption, will have to be borne by the producer.
Our next problem is to consider the effects of taxes on gross
amounts of production, without respect to the individual things
produced. The levying of such a tax is extremely difficult, owing
to obstacles in the way of learning what the gross production of
the individual is. If each individual worked only on his own ac-
count, and sold nothing but his own products, he would himself
have little difficulty in ascertaining the total amount. But such a
simple case as .this is entirely exceptional. Wherever production
is carried on upon a considerable scale, many persons have to be
employed and much money expended, not only for their labor, but
in the purchase of raw material. We must, therefore, to determine
the actual total production of the individual, go through a complex
calculation, of which the result will always be uncertain. Hence,
the more complex production becomes, that is, the more advanced
the state of society, the greater the difficulty which must be expe-
rienced in determining what the actual production of an individual
is. Economically considered, total production may be regarded as
identical with the individual income. The tax on such production
is therefore nearly the same as an income-tax. As this tax is fre-
quently a subject of practical discussion, we may devote a little
attention to it.
The first thing to be said of the income-tax is, that it is, in its
aims, the most equitable tax of all. In fact, the very problem
which the statesman has in view when he seeks to levy a tax is, to
levy according to the wealth-producing power of the individual.
150 THE NORTH AffERICAN REVIEW.
This power is measured by the individual income, and thus a tax ou~
income is really what should be, in most cases, aimed at. Indeed,
a tax on commodities, if assessed on everthing produced, would be
nearly the same as an income-tax, because it would be distributed
among society pretty nearly in proportion to incomes.
But when we consider the practical working of an income-tax,
we find it to be the most unfair and demoralizing one that can be
levied. It is one of the first requirements of a proper system of
taxation that the amount which each man has to pay must be deter-
mined, so far as possible, independently of his own judgment.
When the individual is called upon to communicate to the collector
the data for assessing his taxes, a premium is offered for a failure
to perform this duty. Every one knows that a not inconsiderable
portion of the community will therefore fail to pay the tax. This
knowledge will lead others not entirely devoid of conscience to fail
also, because they know that if they make their returns they will
really pay more than their share. The very fact that the tax re-
quires a statement in which the individual is to be truthful at his
own expense, renders it an unfair tax in the present state of soci-
ety, and leads many who, in a better state of society, would scorn
a delinquency in this respect, to consider that they are not bound
to be any better than their neighbors. We may look forward to a
stage in human progress in which every man will send the tax-col-
lector semi-annually a check for the amount of his contribution,
as determined by law, without the necessity of any assessment
whatever. But we do nothing but mischief by assuming that we
have reached this stage and acting accordingly.
This feature, however, of requiring the individual to levy his
own tax, as it were, is one of the least of the difficulties in the way
of a fair income-tax. How conscientious soever we may suppose
every member of society to be, there is a difference between ones
income proper and his income as generally understood by law.
This difference is a matter of scientific interest, apart from any
question of taxation; it is, therefore, worth understanding. The
question turns upon the definition of income. Ordinarily, ones in-
come is measured by the moneys which he receives from selling his
labor or its product, after subducting that which he pays out for
materials, or assistance in production. It might, in simple forms
of business, be reached by a careful examination of accounts. But
that this is not necessarily the actual income from an economical
point of view will be evident if we reflect that an isolated family,
PRINCIPLES OF TAXATION.
151
possessing plenty of machinery and capital, may be able to supply
nearly all its wants by the labor of its members, and thus be enjoy-
ing what is the equivalent of a good income, and yet receive very
little in the form of money from others. The point of difference
is this: Ones real income is what he actually produces, no matter
whether used by his own family or others. His income, as ordi-
narily measured, is one derived from what he receives in money by
selling his goods. Thus, the latter omits all that portion of the
products of labor which the individual, or the combination of in-
dividuals, devotes immediately to his own use. What this portion
is depends upon the nature of the society in which the individual
is placed, and the character of his pursuits. If there were no such
thing as exchange, except between members of the same family,
there would be no estimated income by the usual method. Where
one s occupation is such that he consumes no appreciable portion of
his own products, the two methods of determining the income
become identical. This is the case with professional men, and in-
deed with people generally who live in cities. The lawyer does
little or no legal business for himself personally, the physician saves
little by attendance on his own family; the supplies which any
dealer furnishes his own family form but a small part of their
annual wants; and the laborer who works for hire or the clerk who
serves on a salary, consumes none at all of his own products.
But when we go into the country we find the case to be quite
different. Very frequently a family may be found living in com-
parative affluence with a minimum of taxable income. Their stud
of horses, which, in the city, might represent a moneyed expenditure
of five hundred dollars per year or upward, are supported from
their own farm and by the labor of their own servants. A large
part of their food is produced at home, and not obtained by pur-
chase. Their servants are supported in great part from the prod-
ucts of the farm; if they do their work on shares, they may be en-
tirely supported in this way without any expenditure of nominal
income on the part of the owner. With the aid of their combined
labor the owner continually adds to the value of his farm by repair-
ing buildings, erecting fences, and fertilizing the ground, without
paying out any considerable sums of money. He may thus have
no taxable income whatever, although in reality wealthy.
Now, in reality, all this wealth produced and enjoyed on the
spot is as much an income as if it were sold for cash. It must be
taken into account to measure the wealth producing power of the
152 THE NORTH AMERICAN REVIEW.
owner. Hence, to levy the equitable income-tax which is desirable, it
would be necessary, at least in the country, to determine not simply
the value of the products sold by the farmer, but the value of every-
thing produced upon the farm, and either consumed there without
being sold or put into permanent improvement. The difficulty of
distinguishing between improvements and simple repairs of loss
would be such that the tax would be an entirely impracticable one.
The general result is that an income-tax is, at least in this country,
almost a pure fiction. When attempted, it is collected solely from
certain classes of individuals, mostly dwellers in cities.
So far as we have yet considered the subject, the entire burden
of taxation on any given article is borne entirely by the producers
and consumers of that article, and not by the community at large.
Will the distribution go further, or will it not? To take a concrete
case: Let us consider the tax on tobacco. Will any part of this
tax be paid by those who are neither producers nor consumers of
the article? By the very theory on which this tax is levied, con-
sumption is not materially affected. The smoker will have his pipe
or cigar, no matter what he has to pay for it. A tax on tobacco is
therefore paid in the first place entirely by those who smoke it, and
no one else is affected. Is there any way in which the smoker can
make his neighbor who does not smoke bear a part of his burden?
Since, in the long run, the same total of taxes must be collected,
and the only question is on what article they shall be levied, we
must, in supposing the levy of an increased tax on tobacco, also
suppose a diminution of the tax upon other products. Let us take
food as typical of these other products. When we take the tax off
of it, we make it cheaper to every consumer. Thus the consumers
of food, for the moment, all gain by having to pay less money for
it, while the smokers of tobacco lose by having to pay more for
what tobacco they consume. The income of each class remains un-
altered by the change, the effect of which is simply to increase the
expenses of the smoker, and diminish those of the ordinary eater
If the former could make the latter pay his surplus to him without
his giving any labor in return, the equilibrium would be restored,
and the tax divided between the two. But this can not be done
unless the smoker will change his habits, which, by hypothesis, he
will not do. It is true that the eater must in some way spend the
money which he saves by being relieved of taxation, and the smoker
must go without some other articles, in consequence of the higher
price which he has to pay for the tobacco. With this increased
PRINCIPLES OF TAXA T1011 153
enjoyment of the eater and diminished enjoyment of the smoker
we reach the end of the economical chain of causes as dependent on
the change of tax. The general money equilibrium in the commu-
nity is restored, but the eater has the sole advantage of the com-
modities he receives in exchange for the increased sum of money
he can devote to other wants than those of food, while the si~ioker
has to go without something. Thus the effect of the tax is that
certain commodities, no matter what, which without the change of
tax would have been consumed and enjoyed by the smoker, are
now consumed and enjoyed by the eater. Clearly, the latter reaps
the whole advantage. The smoker may indeed earn his tax back
by increased labor, but the existence of the tax will not help him
in the matter.
This same conclusion will be reached if we consider the rela-
tions of any other pair of commodities. Let us take food and sew-
ing-inachines, for example. If we take the tax off of food and levy
it on sewing-machines, the eater is relieved in precisely the same
way as before. What he gains is paid partly by the manufacturer
and partly by the user of the machine on which the new tax is lev-
ied. The manufacturer is in the same position with the smoker
just supposed, so far as his share of the tax is concerned. He is
obliged to sustain the whole loss of the tax which he pays, because
he can not levy it on any one else except he changes his occupa-
tion. This he will not do, because he is already making a larger
profit, owing to the rights which he possesses and the skill which
he has acquired, than he could make in any other occupation.
The makers share of the tax is not, however, the whole tax, but
the whole tax diminished by the increase of price which he puts
upon his machines. This latter tax is paid by the user of the ma-
chine. The latter, however, will have tho power to transfer it to
his customers because, since the tax is levied on all sewing-ma-
chines, the price of everything a machine produces may be raised,
and the wearers of shirts have to pay a higher price for them. We
will notice that, in fact, a tax upon machines is effectively a tax
upon everything which the machine produces, and is therefore
divided among all the consumers of the product.
Thus we see that the popular opinion that taxes of all sorts are
distributed among the whole community, no matter what articles
they are levied upon, and that every one who is taxed can distribute
a portion among his neighbors by charging more for his services, is
altogether too hasty. A tax on each class of articles, so far as paid
voL. cxxxI.No. 285. 11
154 THE NORTH AMERICAN REVIEW.
at all, is paid by the consumers and producers and by no one else.
Some will see in this an argument in favor of taxing luxuries which
the consumers will not dispense with; others an argument against
it. There is, undoubtedly, a strong and natural feeling that by
making the consumers of wine and liquors pay more than their
share, of the expenses of government, we are administering a mild
punishment for their appetites, which is all the more justifiable in
that they are compelled to pay it only by gratifying the appetite.
If we view this subject from the side of the let-alone principle, and
admit that every man has an equal right to his tastes and appetites,
and that it is nooody elses business how he indulges them, such a
tax appears inequitable. But the natural way of thinking of the
community is not in this direction. It is the old story over again
of attacking the weak rather than the strong. The slave of his
appetites, who is obliged to pay whatever is demanded of him as
the condition of his gratifying them, is, in a certain sense, a weak
man when compared with his temperate neighbor to whom nothing
is a necessity. The very same impulse which leads us to levy upon
the weak rather than the strong will justify making the consumer
of whisky pay more than his share of the expenses of government.
The third class of taxes we have to consider are those levied
on accumulated capital, or on the accumulations of the past in what-
ever form they may happen to be. The great difference between
the effect of such taxes, and of those levied on production simply,
consists in this: the tax on a thing produced is paid once for all,
and the owner can thereafter hold it free for ever, while, when capi-
tal is taxed, the owner has to pay a perpetual annual penalty to the
Government for possessing it. When, however, we consider the
interest which all accumulated capital is assumed to be earning, we
may regard this difference as one of degree rather than of kind.
Excepting those luxuries which will both morally and economically
pay a heavy excise, a tax of five per cent. on domestic productions
would probably be considered a very heavy one. If, then, capital
were taxed at only five per cent. on the net rate of interest it might
be supposed to earn, the two classes of taxes would be~ equalized.
Judging from the rate at which the public is now anxious to take
Government four per cent. bonds, the actual net profit on capital,
after deducting the expense of management and the risk, is only
from four to six per cent. Five per cent. of this would be only
from two to three tenths of one per cent. per annum. Such a tax
would, however, among us, be considered an extremely moderate
PRINCIPLES OF TAXATION. 155
one. It is evident that, if the tax is equal to the whole rate of inter-
est on capital, the producer is left no motive to accumulate, since
all the results of his savings are seized by the Government, unless,
indeed, he is able to add his tax to the regular rate of interest on
capital. When he can do this the tax is distributed, just as it is
distributed when taxed articles are sold at a higher price.
We have, then, to consider to what extent and under what con-
ditions the capitalist who is taxed can collect his assessment from
those whom his capital supplies. To reach an intelligent and well-
grounded conclusion on this point, we must inquire into the cir-
cumstances which determine the accumulation of capital.
Considering an individual member of society as seeking merely
his own gratification, the fact is very generally overlooked that the
motives impelling him to save are not so urgent as those impelling
him to consume. This is because he has no immediate motive to
save, for the simple reason that, under our system, he can avail him-
self of the savings of others by paying the current rate of interest.
If he is not able to build himself a house, he can rent one belonging
to another at so low an annual rental that, considering simply his
own chances of life, and of the future enjoyment of anything he
might save, it will hardly pay him to save money to build a house.
The same remark applies to nearly every form which the accumula-
tions of past labor may take in order to be made useful at the pres-
ent time. That propensity of the civilized man which is so com-
monly considered the essence of selfishness, the propensity, namely,
to accumulate wealth, is in its actual effects more beneficent than
any other human impulse. As a general rule, the most charitable
purpose to which a man can put his money is to find for it the best
paying investment he can. The interest which it pays him is an
index of the amount of good his money is doing to his fellow men,
and the more he receives the greater the good to others. When,
in familiar parlance, he spends his money freely, he spends it all
on himself; when he invests it he allows others to reap all ihe bene-
fits of it. Leaving out the morbid propensil~y to accumulate coin,
which is now nearly unknown in civilized communities, the only
motive one has for accumulating is the interest which he is thus to
gain. When one comes into possession of a sum of money it is
entirely optional with him to spend it on his immediate personal
wants, of which he has a great number ungratified, or to save it for
the future. If he can gain no interest on it, it is clearly better for
him to enjoy it now while he can, because, at the best, he will get
156 THE NORTH AMERICAN REVIEW.
no more enjoyment out of it in the future, and may in the mean
while lose it entirelyor die, and thus fail to enjoy it at all.
It is a curious fact in this connection, to which I have before
called attention in this Review, that the rate of interest has
never permanently fallen much below the limit at which a young
man would no longer be able to gain an interest equal to his capital
during his probable life. Thirty or forty years ahead is about as
far as the average man appears to look when he considers whether
he shall enjoy his earnings now or save them for the future.
A general conclusion from this view of things is that the imme-
diate cause of the increase of capital is the interest which may be
gained upon it. Lessening this interest by a tax, we lessen the
motive to accumulate in a far greater ratio than we would lessen
the disposition to produce by levying a corresponding tax on pro-
duction. The reason is that, to the individual, accumulation is less
necessary than production.
Therefore, looking at the matter in the broadest light, the result
is that a tax on accumulated property may be considered as paid by
the owner, or by the public who get the benefit of the capital, ac-
cording to our point of comparison. The capitalist may not be
directly able to charge a higher rate of interest, and thus, consider-
ing only the immediate effects of the tax, he may have to pay the
whole of it himself. But the result of this will be that the increase
of capital will be discouraged; a scarcity will then result which
will raise the rate of interest; and it may happen that the scarcity
will continue until this rate is increased by the whole amount of the
tax. It is of course impossible to lay down any exact law of the
subject, like that which governs production. The very fact that
the increase of capital is very slow and includes the work of a whole
generation in its scope, renders our conclusions a little indefinite.
But I think there can be no reasonable doubt that taxes on accu-
mulated property do in the main act in this way. And, a point
especially to be borne in mind is, that in our reasoning we have
supposed the tax to be levied on capital universally, without any
exception whatever. Of course, a tax levied specially upon capital
employed in certain designated ways might be wholly or partially
transferred to the consumers of the product in the same way as a
tax on production.
SIMON NEWCOMB.
PRINCE BISMARCK, AS A FRIEND OF AMERICA
AND AS A STATESMAN.
PART II.
PRINCE BISMAROK passes for a man of inflexible character, self-
assured, without ever a doubt or scruple concerning either his aims
or his results. Many suppose that he must look back upon his deeds
and creations as on the seventh day God the Father contemplated
the world he had made. This I will not dispute. But he has also
hours of weakness, moments of apparent or real dissatisfaction with
his own performances or with his fortunesad, or rather depressed
moods, which take the form of despondency. The strong Prince
Bismarck is then transformed into a wearied Prince Hamlet. Anon
he strongly reminds us, in certain respects, of Achilles sulking in
his tent before Ilion, or of the exclamation of the preacher, Solo-
mon: I looked on all the works that my hands had wrought, and
on the labor that I had labored to do; and behold all was vanity
and vexation of spirit, and there was no profit under the sun. It
may be that these moods are the expression of a mystic process in
his soul, of a sentiment akin to that of the philosopher who said,
The more I know, the better do I see how little I know; but,
possibly, too, they are simply the result of physical causes, over-
excitement, exhaustion, disturbance of the nervous system.
One evening at Varzin, after contemplating for a while the
darkening horizon, he complained to us that he had derived little
pleasure or satisfaction from his political labors, which had won for
him no friends, which had brought happiness to no one, either to
himself, to his family, or to others. We expressed dissent, but he
went on to say that on the contrary, they had made many unhappy.
But for me three great wars would not have occurred, eighty thou-
sand men would not have fallen in battle, and parents, brothers,
Moritz Busch
Busch, Moritz
Prince Bismarck, as a Friend of America and as a Statesman. Part II
157-177
PRINCE BISMARCK, AS A FRIEND OF AMERICA
AND AS A STATESMAN.
PART II.
PRINCE BISMAROK passes for a man of inflexible character, self-
assured, without ever a doubt or scruple concerning either his aims
or his results. Many suppose that he must look back upon his deeds
and creations as on the seventh day God the Father contemplated
the world he had made. This I will not dispute. But he has also
hours of weakness, moments of apparent or real dissatisfaction with
his own performances or with his fortunesad, or rather depressed
moods, which take the form of despondency. The strong Prince
Bismarck is then transformed into a wearied Prince Hamlet. Anon
he strongly reminds us, in certain respects, of Achilles sulking in
his tent before Ilion, or of the exclamation of the preacher, Solo-
mon: I looked on all the works that my hands had wrought, and
on the labor that I had labored to do; and behold all was vanity
and vexation of spirit, and there was no profit under the sun. It
may be that these moods are the expression of a mystic process in
his soul, of a sentiment akin to that of the philosopher who said,
The more I know, the better do I see how little I know; but,
possibly, too, they are simply the result of physical causes, over-
excitement, exhaustion, disturbance of the nervous system.
One evening at Varzin, after contemplating for a while the
darkening horizon, he complained to us that he had derived little
pleasure or satisfaction from his political labors, which had won for
him no friends, which had brought happiness to no one, either to
himself, to his family, or to others. We expressed dissent, but he
went on to say that on the contrary, they had made many unhappy.
But for me three great wars would not have occurred, eighty thou-
sand men would not have fallen in battle, and parents, brothers,
158 THE NORTH AMERICAN REVIEW.
sisters, widows, would not have mourned. Nor sweethearts,
some one added. Nor sweethearts, he repeated, in monotone.
That, however, I have settled with God. Still I have reaped little
or no happiness from all that I have done; but, on the contrary,
much vexation, anxiety, weariness, and ill usage. He continued
for a time in the same strain. The rest of us were silent, and I was
surprised. Subsequently I learned that of late years he has repeat-
edly expressed himself to the same effect.
In his correspondence, too, we find evidences of this Hamlet
mood, and at a rather early period of his life. When, in 1859,
Austria was defeated in the war with France and Italy, and Prus-
sia was preparing to help her, Bismarck, who rightly thought that
no good would come of it, but who, at that time holding a subordi-
nate position, was unable to revoke a step that afterward was ren-
dered unnecessary by the Peace of Villafranca, wrote as follows:
Gods will be done! but the whole thing is simply a question of
time. Nations and individuals, folly and wisdom, war and peace,
come and go like the waves, but the sea remains. Truly, there is
in this world nothing but hypocrisy and jugglery; and whether it
is a fever or a bullet that does away this mask of flesh, off it must
come, sooner or later, and then an Austrian and a Prussian will be
so much alike, provided they are of the same stature, that it will
not be easy to distinguish them. Even fools and wise men~, when
reduced to skeletons, are very much alike. This consideration, it is
true, does away with special patriotism, but even now we should be
driven to despair were our happiness to depend on that.
We find in these utterances much that points toward a charac-
teristic trait, which forms the groundwork of the whole nature and
action of our hero, and on which I propose to throw a little light.
In him, the sense of the vanity of all human and earthly things is
associated with the belief that beyond them or within them is a
Something higher, a firm, everlasting stay and comfort for toiling,
fighting, suffering man; above the incessant changes of terrestrial
things, a divine loadstar that never quits its place, whose light is
unalterable; on this he must keep his eyes ever fixed if he would
at all times find the right way to that which will afford peace and
safety to himself and to those for whom he labors, and fights, and
suffers. In other words, Bismarck is a God-fearing man who seeks
his strength in religion, who bases his political action upon religion,
and who lives in the conviction that death is only the passage into
another life, for which the present should be a preparation.
PRINCE BISMARCK. 159
On his first appearance upon the stage of politics he expressed
this conviction in the most definite terms. On June 15, 1847, he
made a speech in the Landtag, in which, among other things, he
said: I am of the opinion that the idea of the Christian state is
as old as the ci-devant Holy Roman Empire, as old as any European
state; that it is the very soil in which those states struck root;
and that the state which would have its permanence insured, which
would even justify its own existence, must rest on the basis of reli-
gion. To me, the words by the grace of God, which Christian
potentates put after their names, are no empty sound; but, therein,
I see the acknowledgment that princes desire to wield the scepter
which God has intrusted to them in accordance with his wAl. But
I can only recognize as Gods will what is revealed in the Christian
gospels; and I hold that I am justified in calling that a Christian
state which sets itself the task of realizing the teaching of Chris-
tianity. If a religious basis is recognized for the state at all, that
basis, in my opinion, can only be Christianity. Take away from
under the state this religious basis, and you have only a casual ag-
gregate of rights, a sort of bulwark against the war of all against
allan idea entertained by the older philosophy. But then its legis-
lation will not refresh itself at the primal fount of everlasting truth,
but will conform itself to the vague and fluctuating notions of hu-
manity that happen to be current at the time in the minds of rulers.
In such a state I do not see how communistic ideas about the im-
morality of property, and the high ethical value of theft as an at-
tempt at restoring man~s original rights, can be denied the oppor-
tunity of asserting themselves whenever they feel in themselves the
power to do so. Such ideas are esteemed rational by those who
hold them; indeed, they are regarded as the highest result of human
reason. Let us not, therefore, gentlemen, derogate from Christianity
in the eyes of the people by showing them that it is not essential
for their law-givers ; * let us not deprive them of the comforting
assurance that our legislation has its source in Christianity, and that
the state aims at the realization of Christian teaching, though it
may not always attain that end.
Thus Bismarek held that a state without a religious basis is
unthinkable, that the religious basis of European states is Chris-
tianity, and that their object is the realization of Christian senti-
ments and of Christian habits of living. The justness of these
* The matter under debate was the conferring of active and passive electoral rights
upon Jews.
160 THE NORTH AMERICAN REVIEW.
propositions is indisputable, though the orator did not make proper
application of them at the time. It did not follow from the Chris-
tian character of the modern state that people must uphold an arbi-
trary theologico-political system which in the reign of Frederick
William IV had identified itself with the idea of a Christian state
and had usurped its name. Bismarck held this erroneous opinion
then, but subsequently he repudiated it together with other errors of
his youth. But what gives special significance to this speech is the
stress he lays upon revelation in view of the instability of earthly
truth. Here we discover a marked feature of his character. Certi-
tude is vital air for the hero, and creative action is impossible if the
convictions of the worker do not rest on the firmest foundations.
Luthers whole nature finds expression in the first verse of his
hymn
Em feste Burg ist unser Gott.
There have been heroes who presumptuously or under the guidance
of unconscious necessity have found in themselves the law of their
conduct, and then would fain make that law the law of their nation,
or, like Napoleon I, of all nations. Other heroes have taken the
moral code, the conscience, of their countrymen as the rule of
their own life and conduct: of these is Bismarck. But God dwells
in the conscience of nations. With him, Kants Categorical Im-
perative, the leader of Prussian and German politics has tri-
umphed over all hindrances to his great reformatory work. With
eyes steadily fixed on him, and through intimate communion with
him, who is the source of all fidelity to duty and of all moral power,
he has gone on from victory to victory.
Thoughts of like tenor with the above have been again and
again expressed by the Chancellor during his maturer years, both
in public and in private life. When in March, 1870, there was a de-
bate in the North German Reichstag on the abolition of capital pun-
ishment, Bismarck spoke against a measure dictated by the humani-
tarianism of the day. If, he said, I were to represent the im-
pression the debate has made on my mind, I should say that the
opponents of capital punishment overrate the value of life in this
world and ascribe too great significance to death. I can under-
stand how the death-penalty should seem harder to one who does
not believe in a continuance of the individual life after the death of
the body, than to one who believes in the immortality of the soul
he has receiVed from God. But when I consider the question more
PRINCE BIS2JIARCK. 161
closely I can hardly accept even this view. For him who possesses
not the faith which I from my heart confess, that death is a passage
from one life into another, and that it is competent for us to give
to the worst criminal on his death-bed the comforting assurance,
.Mors janua vitcefor him who shares not in this conviction, the
enjoyments of this life must have such value that I almost envy
him the sensations they yield to him. His occupations must pro-
duce for him results so satisfactory that I am unable to enter into
his feelings when, fully assured that his personal existence termi-
nates for good and all in death, he finds it worth while to live on.
The orator made an allusion to Hamlets soliloquy, and then
quoted a passage or two from Schiller. I have felt to-day, he
said, that the saying of the poet, Und setzet ihr nicht das Leben
em, nie wird euch das Leben gewonnen sein, * and that other say-
ing, Das Leben der Giiter h6chstes nicht ist,f have among us fallen
into oblivion, buried in a wilderness of what, in my opinion, is a
false sentimentality.
These judgments, I take it, pronounced by this man in a tone of
unalterable conviction, place before us ~character that recalls the
nobility and the grandeur of the ancients, and the hearty contempt
of the world shown by the early Christians, when with serene com-
posure they entered the horrid cavect of the Colosseum, whence
there was no return. Amid his temporal concernments ever mind-
ful of eternity; by his faith in this ever armed against vicissitude;
a calm, tranquil personality, a mariner directing his course by an
unerring compasssuch is Bismarck; and in truth only such a
genius could achieve success where hitherto the German people
had wrought in vain, where many eminent men bad striven to no
purpose, where so many valiant Germans had sacrificed that which,
though not the highest, is still a high good.
Even within the last few years Bismarck has made public pro-
fession of the same principles which he first declared thirty years
ago. He is no longer by any means the representative of the hier-
archical orthodox party, but he is as he always was a sincere Chris-
tian. Christianity, not creeds, said he to me on the 5th of Octo-
ber, 1878. He seldom goes to church, perhaps out of regard for
his health; but in 1870, before going to the war, he felt the need of
nerving himself for the combat by partaking of the Lords Supper.
Further, I would quote one remark made by him on October 9, 1878,
* If you do not plant life, you will never reap life.
t Life is not the highest good.
162 THE NORTH AMERICAN REVIEW.
in the debate upon the socialist law: If I were to accept the belief
held by these peopleFor myself I will say~ that I lead a busy life,
my position is satisfactory, and yet all this could not inspire me with
the wish to live another day were it not that I possess that which
the poet calls a faith in God and in a better future. Rob the poor
of that, and you predispose them for that weariness of life which
finds expression in deeds like those we lately witnessed.
But Bismarck gave the strongest and the most emphatic proof
of his strictly religious mind and heart on that memorable evening
at Ferri~res, as recorded in my book, Graf Bismarck und seine
Leute(vol. i, p. 208). I will here recount rather more in detail
the main points of that conversation.
It was September 28th, and we were at dinner. The company
had been talking of matters more or less indifferent, as pheasant-
shooting, champagne-punch, etc., when the Chancellor turned the
conversation to graver topics, and at last began a longer discourse,
suggested, as to the metaphor with which it began, by a spot of
grease on the table-cloth ; and which at times assumed the character
of a dialogue between the Chancellor and his kinsman, Herr von
Katt, who sat beside him. Bismarck saidand I report him verla-
tim, for I took down his remarks stenographically: The grease-
spot (scilicet, the feeling that it is a noble thing to die for country
and honor, even without recognition) is sinking deeper into the
people now that it is soaked with blood. The corporal has essen-
tially the same sense of duty as the lieiifenant and the colonel, that
is to say, among us Germans. With us this runs through every
stratum of the nation. The French are a mass easily brought
under the control of one man, and are then a great force. With
us, each one has a mind of his own; but when, as now, Germans
are in great numbers of one mind, they can be relied upon for
mighty enterprises. If they were all of one mind, they would be
omnipotent. - . - The sense of duty in a man who submits to be
shot dead, alone, in the dark (meaning, no doubt, without thought
of recompense or glory for steadfastly holding the post assigned to
himwithout fear or hope, and with eye single to his duty), this
the French have not. It comes of the residuum of faith in our
peopleof the fact that I know there is One who sees me, even
when the lieutenant sees me not.
Do you believe, Excellency, that they really reflect on this?
asked the Landrath von Ftirstenstein, one of the guests.
Reflect? No; it is a feeling, a humor, an instinctwhat you
PRINCE BISMARCK. 163
please. If they reflect, it is gone; they argue themselves out of it.
How, without faith in a revealed religion, in God who wills what is
good, in a Supreme Judge and a life to come, men can live together
harmoniously, each doing his duty and letting every one else do
his, I do not understand.
Here the Grand Duke of Weimar was announced. I believe
that he, too, will be revealed, said the Chancellor, laughing; but
let him wait. Then he went on talking for a good quarter of an
hour longer, departing now and then from his proper theme, and
oftentimes repeating the same idea in different words. Were I
no longer a Christian, I would not remain an hour in the Kings
service. If I did not obey God, if I did not count upon him, I
should certainly pay no homage to earthly masters. I should have
to live, of course; I should be in a good enough position, and should
have no need of them. Why should I fret and toil unceasingly in
this world, and expose myself to perplexities and ill usage, if I did
not feel that I must do my duty? I have a firm, unshaken faith
in a life after deaththerefore am I a royalist, otherwise I should
be a republican. If I did not believe in a divine order which has
destined this German nation for something good and great, I would
forthwith go out of the diplomatic business, or I would never have
entered it. To what original to ascribe the sense of duty I know
not, except to God. Orders and titles have no charm for me. The
firm stand that for ten years I have taken against all possible ab-
surdities of the court I owe purely to my decided faith. Take
from me this faith and you take from me my country. I~f I were
not a Christian and a firm believer, if I had not the miraculous basis
of religion, you would never have had such a chancellor. Give me
a successor on this basis, and I retire at once. But I am living
among heathen. When I say this, I do not mean to make prose-
lytes, but needs I must confess this faith.
But, said Katt, surely the Greeks and Romans practiced
self-denial and devotionsurely they had a love of country and
did great things with it; and many people trow, he was convinced,
do the same thing from patriotic feeling and the sense of belong-
ing to a great unity.
The Minister replied: This self-denial and devotion to duty
toward the state and the King is with us only a relic of the faith of
our fathers and grandfathers in transformed shapemore indistinct
and yet active, faith and yet faith no longer. . . . How gladly
I should be off! he continued; I delight in the woods and in
164 THE NORTH AMERICAN RE VIE W
nature. Take away from me my relation to God, and I am the
man to pack up to-morrow and be off for Varzin to grow my oats.
I have then no King, and why? If it were not Gods command,
why should I submit to these Hohenzollern? They are a Swabian
family no better than my own, and I should have no interest in
them.
From this, in the best sense of the term, religious tone of our
heros whole naturea feature in which he strongly reminds us of
Cromwellsprings another of his characteristics, which I might
describe as the expenditure of his entire personality upon the tasks
assigned to him: he pays, or rather prepays, for his results by
entire self-devotion. On the 7th of April, 1878, I had the honor of
dining with the Chancellor, and, in the course of conversation, he
called himself an old man. The Princess would not let this pass, so
she remarked, You are only sixty-three years of age. He replied,
Yes, that is true, but I have always lived fast, and on a cash
basis (6aar). Then, turning to me, he added: Baar, that is to
say, I have always thrown my whole self into whatever I did, and
have paid for it in health and strength.
But Bismarcks religion is not obtrusive. He makes no parade
with it, like certain Pharisees, and his piety is free from intoler-
ance, and from the desire of imposing upon others his own faith, or
a behavior approved by the dominant Church. Very distinctly he
condemns all constraint in such matters. He has never made war
on Catholics as such. He has always only in so far opposed them,
and made them to feel the weight of his arm, as they have avowed
themselves Ultramontane, and have inscribed on their banners, and
striven to make effective, the right of Rome to rule in Germany,
and the competence of the Church to invade the sphere of the state.
He is neither intolerant nor bigoted.
A conversatio,n at St. Avold on the question how the United
States could tolerate the Mormons with their polygamy led him to
express his opinion on the subject of religious liberty in general,
which he advocated very strongly; but, said he, it must be impar-
tial and reciprocal. Every man must be saved in his own way,
he said; I will urge this some day, and the Reichstag will cer-
tainly approve. But the church property must, of course, remain
with those who stick to the old Church to which it belongs. The
man who goes out must be ready to sacrifice to his conviction, or
rather to his unbelief. It is not taken in bad part if Catholics are
orthodox, not at all if Jews are so; bi~t orthodoxy in Protestants
PRINCE BISMARCK. 165
gives great offense, and the Church is constantly decried for her
persecuting spirit if she expels the unorthodox. Then, when the
orthodox are persecuted and derided in the presswhich in Ger-
many is unfortunately in the hands of Jewsand in society, people
think that is just as it ought to be.
At Versailles the same subject was up for discussion one even-
ing at table, and again the Chancellor distinctly declared himself to
be in favor of toleration in religious matters. But, he continued,
the illuminati are not tolerant. They persecute those who be-
lieve, not indeed with the stake, for that would not do, but with
contempt and insolence in the newspapers; and among the people,
so far as they belong to the party of unbelief, toleration has made
but little way. I should not like to see how delighted they would
be here to have Pastor Knak * hanged. The conversation now
turned to the strict observance of Sunday in England, and the Min-
ister declared the Sabbath rest to be good. As a proprietor he did
what he could to make Sunday a day of rest from labor on his es-
tate, only he did not wish to see people coerced. Every one must
know, said he, how he should best prepare for the future life.
On Sunday no work should be done, not so much because it is
against Gods command, as on mans account, who needs recrea-
tion, and must have opportunity for attending to his spiritual
affairs. . . . This, of course, does not apply to the service of the
state, above all not to the diplomatic service, for dispatches and
telegrams arrive on Sunday that must forthwith be attended to.
Neither is anything to be said against our peasants bringing in their
hay or corn on Sunday in the harvest after long rain, when fine
weather begins on a Saturday. I could not find in my heart to
forbid this to my tenants in the contract, although I should not do
it myself, being able to bear the possible damage of a rainy Sunday.
It is thought by our proprietors improper even in such cases to let
their people work on a Sunday.
I mentioned that pious folk in America allow no cooking on Sun-
day, and that in New York I was once asked to dinner, and got
only cold victuals. Yes, replied the Chancellor, in Frankfort,
while I was still freer, we always dined more simply on Sunday, and
I never used my carriage, for the sake of the servants.
One day (it was in 1876, I think) the Chancellor went out for a
ride along the boundary of his Varzin estate. To his great surprise
he saw, though it was Sunday, a number of men at work in the
* A leader among the orthodox in Berlin, since deceased.
166 THE NORTH AMERICAN RE VIE W
fields with hoe and spade. What men are those? he asked of
his overseer. Our laborers, your Highness, was the reply; we
can not spare them in the six week-days, and now they must work
their own fields on Sunday. The Prince rode home, and there im-
mediately wrote a note to all the overseers of his estates to the
effect that the cultivation of the laborers fields should always pre-
cede that of his own, but that in future he would not permit any
work to be done on Sunday. The result was that the laborers did
what was necessary for their own fields in two or three days, and
then went cheerfully to work on those of the Prince, so that the
head overseer was soon able to report that never before had the
field-work been done so quickly.
Bismarck does not favor the efforts made to introduce among us
parliamentarism, as in Englandnot from principle, but because he
holds it to be not the only system of government that promotes the
happiness of the people, and because it is not adapted to Germany,
inasmuch as the conditions do not exist here, where, instead of only
two political parties, we have half a dozen. But he is a sincere
constitutionalist, and, during the conflict, his action was, on the
whole, constitutional.
His general principles of internal policy he very plainly expressed
to the Frenchmen who dined with him at Versailles on January 30,
1871. He said that consistency in these matters, i. e., politics, often
becomes simply blundering obstinacy and self-will. One must be
guided by facts, by the way things lie, by the possibilitiestaking
into account the conditions, and serving his country according to
circumstances, and not following ones own opinions, which are often
simply prejudices. When he first entered political life, as a green
young man, he had very different ideas and aims from what he had
now. But he had changed his mind after thinking the matter over,
and then had not shrunk from sacrificing his own wishes, if any-
thing was to be gained thereby, to the necessities of the day. One
must not force ones own inclinations and wishes upon ones coun-
try, he further remarked; and then concluded, La patrie vent ~tre
servie et pas domin6e. This last remark exceedingly pleased the
Frenchmen, who pronounced it true and profound. Still, one of
them objected that this would subject genius to the will and opinion
of the majoritythough, as a rule, majorities have ever had but
little understanding, little knowledge of affairs, and little character.
The Chancellor very neatly replied, saying that his sense of respon-
sibility to God was his guiding star, and declaring devoir to be a
PRINCE BISMA.RCK. 167
higher and a more powerful principle than the droit du g6nie
which his French visitors had lauded.
About this same time he remarked to us: Favre has no idea
how things go on our side. He has again and again reminded me
that France is the land of freedom, while despotism reigns among
us. I had told him, for instance, that we wanted money, and Paris
must procure it. He thought we might raise a loan. That could
not be done, I replied, without the Reichstag or the Landtag.
Oh, said he, you surely could raise five hundred million francs
without the Chamber. No, nor five francs, I replied. He could
not believe it. But I told him that I had passed four years of
struggle with our popular representatives, yet it had never occurred
to me to raise a loan without the consent of the Landtag; at that
point I had ever halted. This seemed rather to alter his opinion;
but his only remark was that in France on ne se g~nerait pas.
The conflict which arose out of the question of army reform in
the years preceding 1866 produced an unpleasant state of things.
It was impossible to tell the Prussian representatives that we were
in this way making ready for a policy of action. The new Minister
did not fail to throw out hints in a general way, but he must needs
speak very plainly, and disclose his plan in detail, if he would con-
vince and win to himself his opponents in the House of Deputies,
which was, of course, quite impossible. Bismarck, therefore, be-
thought him of a rather strained interpretation of the Constitution.
The budget, he said, is a legislative act, and for such act three
factors are required, to wit, the House of Deputies, the House of
Lords, and the Crown. Now, if one of these three refuses assent,
as in the present case, there is no budget. But the state can not
stand still, and hence, in default of a budget, the Crown must dis-
pose of the public moneys. This interpretation was correct down
to the conclusion. Certainly the state must endure, even when there
is no budget, but the Crown is not, therefore, constitutionally em-
powered to originate fundamental remedies. If the good of the
state demands innovations, and the representatives of the people
withhold their assent to them, then such innovations must be made
on the responsibility of the Ministers, until the country has changed
its mind and given assent. And it is well when the conversion is
not too long delayed. So it was with army reform and the strife
it called forth. When the victories of 1866 had converted the
country, Bismarck, who at the same time had, in a measure, gained
a victory over the opposition at home, in strict conformity with
168 THE NORTH ANERICAN RE VIE W
constitutional usage, asked the Landtag to grant indemnitythat
is, he now repudiated the theory that, whenever the budget is
rejected by the House of Deputies, the Crown acquires unrestricted
power to make organic innovations. It was, however, fortunate
that before internal strife had resulted too seriously, chance gave
occasion for a foreign war. In all this it was only dreamers
who thought of a revolution. Revolutions, said the Chancellor,
are, in Prussia, the work of the kings alone. Nevertheless, had
these internal dissensions lasted much longer, and the popular mind
in Prussia been so estranged from the Government as to threaten
such an uprising as that of 1866, it would have been unfortunate
for Germany, and indeed for all Europe.
With justice does the Chancellor object to deputies who look on
their parliamentary avocation as their only business, as a trade; and
it is mainly on this account that he refuses to grant a salary to
members. He has repeatedly called attention to the peril of such
a degradation of the office of a representative. Thus, in January,
1869, speaking in the Prussian Landtag of the difficulty of finding
capable men who can amid their ordinary occupations find oppor-
tunity to fit themselves successively for the Landtag, the Zollparlia-
ment, and the Reichstag, he said: Before long, men will make a
trade of being representatives, as of being doctors or lawyers. The
result will be that we shall have a special class, that of the popular
representative, who gradually will come to resemble more closely a
bureaucratic element than a body representing the country and in
intimate communication with the people. Such men, when they
fail of election to Parliament, have nothing else to do but to travel.
In this connection I recall further the speech of May 8, 1879, in
which the Chancellor, while defending his project of customs re-
form, remarked to the Deputy Lasker that his policy was that of a
man without property. He then went on as follows: He is one
of those gentlemen who hitherto, at every step in our law-reforms,
have been a majority, and of wh6m the Scripture says that they
sow not, neither do they reap; they neither spin nor weave, yet are
they clothed and fed. In other words, it must be confessed that
the majority of our law-makers is made up of men who are engaged
neither in manufactures nor in agriculture; and such men easily
lose whatever little sympathy they may have with the interests here
represented by the Government. These non-producers in our Par-
liament, these law-makers who live on salaries, fees, pensions, or
annuities, who belong to the press, law, medicine, or other learned
PRINCE BISffARCK. 169
professions; but particularly the party leaders who, through their
eloquence and their influence over their colleagues, are wont to con-
trol the majority, and who, year in and year out, devote themselves
to this business partly through the press, partly in Parliament.
these men surely ought to know that projects which have their
origin in the bureau or in theory must necessarily be faulty unless
they are aided by some experience and practical sense. Then, too,
they ought to take to heart the maxim NoIles8e oblige, for he
who has thus for years enjoyed power in the legislative hall must
think of the one who serves as the anvil when the hammer of legis-
lation falls.
The Prince is equally justified in his opposition to the doctri-
nctire jurists who make their presence felt in our Parliaments. These
men are 4ominated, or at least powerfully influenced, by the erro-
neous belief that all questions which touch upon their province, and
in particular all constitutional questions, can be solved by the ap-
plication of formal rules; and not only the Party of Progress, but
also certain leaders of less radical factions, as Lasker, Bamberger,
and Von Forkenbeck, are inclined to compress the fullness and
complexity of our national life within the limits of dead-letter law.
In other words, jurisprudence takes too prominent a place in the
ranks of our liberal parties, and the tone of the debates reminds one
of a lawsuit into which the not very intelligible dogmatism of specu-
lative professors is injected. As Herr von Benningsen, a leader of
the National Liberals, and himself a jurist, remarked to me a few
years ago, Our Liberal movement is mainly an effort of the law-
yers to win a higher position. He had reference to Hanoverian
lawyers, but we need only glance at the important part played by
this class in our whole political life to see plainly that the remark
applies to all Germany. I think highly of lawyers and professors
as a class; but a teacher whose words his pupils must accept with-
out question soon comes to think himself infallible; and experience
proves that the lawyer who is always engaged on one side in poli-
tics is apt to become obstinately dogmatic. This is, unhappily, the
characteristic of the eloquence of our Parliamentary debaters, who,
instead of transacting business in a rational way, are constantly en-
gaged in petty disputes with the Chancellor. Idealists who have
no practical intercourse with the people have, in the different par-
ties, acquired an influence that is positively baneful. The conse-
quence is, thaPthe decision of questions of the highest importance
Lor the welfare of the people lies in the hands of professional poli
vox~. Cxxxl.NO. 285. 12
170 THE NORTH AMERICAN REVIEW.
ticians, intriguers, and leaders of coteries. Many of the speeches
made in our Reichstag are no better than those of the National As-
sembly of 1848a flood of words with little sense, for the most
part mere rhetorical pugilism that attacks all sorts of subjects with
ready-made theories and catchwords, and that always must have the
last word.
Nor is there any comfort in the fact that this phenomenon has
still worse consequences among some of our neighborsin Italy, for
example, where the Minister is in the habit of giving up the field
to the lawyers; for the same thing might happen here were the
Government less firm than it is at present. But the Rechtsstaat
(jurist-state), which a large proportion of our representatives from
the bar and from the bench have more or less distinctly in view,
inasmuch as it is purely juristic, and gives to jurists all the power,
would be exactly the reverse of that which its advocates in the Par-
liament, and the press are striving for, or think they are striving
for. It would disfranchise and disqualify all powers and classes
which exist in the state alongside of the legists, and which have as
good a right to have views and interests of their own. The at-
tempt to set up a jurist-state, therefore, is in no wise better or
more just than would be the attempts of theologians to set up a
state on strictly theological principles, of the Vatican to make the
Church supreme in political affairs, or of any class of men to con-
stitute a state in which the feudal lord or the merchant should
decide what may be done and what may not be done. It was
surely well and truly said, Justitia est fundamentum regnorum.
Law, right, is the corner-stone of the state. But its creating and
living power is something else, and jurisprudence has no valid
claim to be regarded as the basis of the state. That creative force
is, on the contrary, the natural life as a whole. Statesmanship fash-
ions and shapes its products, and political science notes these prod-
ucts, grouping them in harmonious series.
Prince Bismarck, being a thoroughly candid statesman, loves
candor in others, and is the sworn enemy of all simulation, all empty
show, all mere phrases. He abhors florid oratory, and I have often
heard him condemn the pomposity of most diplomats. Von Ga-
gem, at one time so famous, was in his eyes a man with the mien
of Jupiter, signifying nothinga phrasengiesskanne (phrase-wa-
tering-pot). Jules Favre, who strove to bring into diplomacy the
arts of an advocatethe impressive gestures and the high-flown ora-
torywas for him a comic actor. It was a delightful description
PRINCE BISifAROK. 171
he gave us on January 31, 1871, of Waldeck, the great light of the
I3erlin Democrats: He reminds me of Favre; always consistent,
true to his principles, with his opinion and conclusion made up be-
forehand; then a stately presence, venerable white beard, voice
deep from the chest, even when he speaks of trifles. All this is
quite effective. He would deliver a speech in a voice quavering
with earnestness, to tell you that the spoon remains in the glass,
and would proclaim any man a scoundrel who did not agree with
him. Everybody would declare his assent, and laud his forceful
sentiments. When General Reille told him, after the battle of
Sedan, that the French would blow up themselves and the fortress
rather than submit to our hard conditions, the Chancellor dryly re-
plied to this pathetic phrase, Faites sauter.
The first time I ever spoke to the Chancellor was on the 24th
of February, 187Q, and he asked if I knew what was the order of
the day in the Reichstag. I said No, adding that I had had too
much to do to notice what was in the newspapers. Well, he re-
plied, the question was about the mooted admission of Baden into
the North German Confederation. Why can not people wait for
that event to come about of itself? They must treat everything
from a partisan point of view and as speech-makers! It is most
unpleasant to have to answer such speeches, I might say such prat-
tle. In fact, it is with these oratorical gentlemen as with many
ladies who have small feet which they are always displaying in
shoes much too small for them. We have the German question in
good train now; but it has its own timea year, perhaps five years,
possibly even ten. I can not make it advance any quicker; no more
can these gentlemen, with all their powerful and emotional elo-
quence.
Quite characteristic of his way of dealing with such matters
were the remarks he made in our hearing at Versailles on the even-
ing of February 2, 1871. He told us that during the day he had
been to St. Cloud, and that on the way thither he had met many peo-
ple with household utensils and beds, probably returning inhabitants
of the villages around Paris, who, during the siege, had fled from
their homes. The women looked quite friendly, he observed, but
the men, on seeing the Prussian uniform, assumed a hostile expres-
sion and a heroic attitude. This reminds me of the old Neapolitan
army which had a word of command that ordered the men to assume
a like attitude. Where in our army the command would be, Arms
to the charge, right, in the Neapolitan army it would be, Faccia
172 THE NORTH AMERICAN REVIEW.
feroce, i. e., look 8avage. With the French everything lies in a
magnificent attitude, a pompous speech, and an impressive, theatri-
cal mien. If it only sounds right and looks like something, the
meaning is all one. They are like the Potsdam burgher and free-
holder who once told me that a speech of Radowitz had touched and
affected him deeply. I asked him if he could point out any passage
which had specially gone to his heart or seemed particularly fine.
He could not name one. Thereupon I read the whole speech to
him, and asked him what was the affecting passage. It turned out
that there was nothing of the sort there, nothing either striking or
affecting. In short, it was nothing but the manner and attitude of
the orator, which looked as if he were saying the deepest, most in-
teresting, and most striking thingsthe thoughtful glance, the de-
vout eyes, the voice full of tone and weight. It was the same with
Waldeck, though he was not so able a man or of such distinguished
appearance.
The gift of oratory, he continued, has done much mischief
in Parliamentary life. Much time is wasted because every one who
fancies he has any ability must have his word even when he has
nothing new to offer. Speaking is too much in the air, and too little
to the point. Everything is settled beforehand in committee; hence
what is said in the House is for the public and the reporters. The
sole object is to exhibit before the public the orators power, and to
be praised by the newspapers. But the time is coming when elo-
quence will be looked on as a faculty hurtful to the common weal,
and a man will be punished who allows himself to be guilty of a
long speech. But we have one body which admits no oratory what-
ever, and which nevertheless has done more for the German cause
than any other, namely, the Council of the Confederation. True, I
remember that at first some attempts were made in that direction,
but I put a stop to all that, though properly I had no right to do so,
albeit I was President. I said to them something like this: Gen-
tlemen, we have nothing to do here with eloquence, with speeches
intended to produce conviction, for every one brings his conviction
with him in his pocketthat is to say, his instructions. It is simply
a loss of time. I propose that we confine oursevelves here to facts.
And so it was; there were no more long speeches. We got on all
the faster with business, and the Council of the Confederation has
really done a great deal.
That the Prince has but a poor opinion of the abilities and the
services of most of the members of the diplomatic corps, and that
PRINCE BIS3fARCK. 173
he laughs at their pomposity and arrogance, is plain from sundry of
his utterances. I cite only the following:
At Ferril~res he told me a delightful story of the time when
he was envoy of the Diet of the Confederation at Frankfort:
At both of the sittings of the military commission, while Ro-
chow represented Prussia in the Diet, Austria alone smoked.
Rochow would certainly have liked to do the same, but he did
not venture; besides, his king, who was not a smoker, would per-
haps have disapproved of such conduct. When I came, I too hank-
ered after a cigar, and, as I did not see why I should not have
it, I asked the Power in the Presidents chair for a light, which
seemed to give him and the other gentlemen both astonishment and
displeasure. Plainly it was an event for them. That time only
Austria and Prussia smoked. But the other gentlemen obviously
thought the matter so serious that they reported it to their respec-
tive courts. The subject required mature deliberation, and for half
a year only the two Great Powers smoked. Then Schrenkh, the
Bavarian envoy, began to assert the dignity of his station by smok-
ing. Nostitz, the Saxon, had also a strong inclination to do like-
wise, but as yet had not received permission from his minister.
Yet when at the next session -he saw Bothmer, the Hanoverian,
indulging in the weed, he mustfor he was intensely Austrian, and
had sons in the Austrian armyhave come to some understanding
with Rechberg; for he also now took out a cigar from his case and
puffed away. Only he of Wtlrtemberg and he of Darmstadt were
now left, and they never smoked at all. But the honor and dignity
of their states imperatively required it, and so at the next sitting
the Wiirtemberger produced a cigarI see it still; it was a long,
slender, yellow thingand smoked at least half of it as a burnt-
offering for the Fatherland.
One evening at Versailles the Chancellor happened to remark
upon the reports of ambassadors and diplomatic agents in general,
which, he said, contain nothing in a pleasing form. It is space-
work, written only because something must be written. Take, for
example, the reports of our consul in Paris. As you read them you
kept for ever thinking, Now something is coming, but it never
came. It was all very fine, and, one would read on and on, but at
the end it was found that in fact there was nothing at all in it.
Mention was made of a military plenipotentiary, who had also fig-
ured as an historian, and of him the Minister said: It was expected
that he would render some service, and, as far as quantity goes, his
174 THE NORTH AMERICAN REVIEW.
services were great. As regards form, too, the same may be said.
His style is pleasing, would do credit to a novelist; but, while I
peruse his reports, written in a fine, ornate hand, I find that despite
their length there is nothing in them.
A few days later the conversation again turned upon diplomatic
reports, and the Chancellor once more pronounced them to be for
the most part of no value. In great part they consist of paper and
ink, said he. The worst is when they make them long. With
Berustorif, one is used to his sending every time such a ream
of paper with stale newspaper clippings. But when any one else
writes a lengthy dispatch, one gets disgusted, because as a rule
there is nothing in it. If people write history out of them, there
is no proper information to be got out of it. I believe the archives
will be opened to them after thirty years; they might be allowed to
see them much earlier. Dispatches and reports, even when they do
contain something, are unintelligible to those who do not know the
persons and the circumstances. Who knows after thirty years what
sort of a man the writer waswhether he saw and heard to good
purpose, how he looked at things, whether he was partial or preju-
diced, and whether he possessed the gift of reporting them clearly
and accurately? And who has any intimate acquaintance with the
persons of whom he writes? We have to know what Gortshakoff or
Gladstone or Granville meant in what the envoy reports of his con-
versations with them. Better information may be gleaned from the
newspapers, of which even governments avail themselves, and where
people often say more plainly what they think. But there, too, we
have to know the circumstances. The main points always lie in
private letters and confidential communications, even by word of
mouth, nothing of which finds its way into the records.
Since Bismarck assumed control of the Foreign Office and the
external diplomacy of Germany, a very different spirit is noticeable
in those circles. A vast deal of work is done in Nos. 76 and 77
Wilhelmstrasse, and the Prince himself sets a good example. The
whole ~stablishment, from top to bottom, is organized with a strict-
ness that is almost military. Every one has to obey without ques-
tion, and does obey without question or murmur, whatever he may
think within his own mind. Everything moves and acts in obedi-
ence to one will, one mind, and all do what they can. The man
who can not make himself the passive instrument of the genius who
here toils, here commands, may go his waythere is no room here
for him. There must be order, strict order, subordination, harmony,
PRINCE BISMARCK. 175
so that the machine may do its work qidckly and accurately. There
must be no halting, no failure produced by the exercise of individ-
ual judgment. In times past, under an easy-going and feeble ad-
ministration, things were different. Then every one pursued his
own policy, and ambassadors not unfrequently did the same thing.
But now that a teeming mind and a strong will are in control, and
the highest interests are at stake, infractions of discipline are not
tolerated. Every official, even the highest, has simply to obey
orders, and must consider himself in the light of a dispatch-clerk, or
as a colonel or captain under the general. The councilors are not
expected to give advice, but are to act as members under the head,
like the other membersthe charges daffaires, ambassadors, and
envoysthey have to put in execution his ideas, his views, and
nothing else, with the aid of whatever knowledge or skill they may
possess. Individualism and the necessity of one uniform policy go
not hand in handa lesson which the proud and self-willed Harry
von Arnim learned to his cost.
While I was employed in the Foreign Office, everything was done
in its political section as in a regiment. About 10 A. M., occasion-
ally later, seldom earlierfor the Prince worked far into the night,
not going to sleep till toward dawna servant would announce in
the central bureau, The Prince is in the breakfast-room. That
was the reveille, and the first signal for action given to the little
army of the Chancellor, and he then received from the hands of the
dispatch secretaries all sorts of communications coming per post or
otherwise. Next came the announcement, The Prince is in his
work-room. The councilors who had business with the Chan-
cellor could now be admitted to the presence of their chief, and
the rest were notified to hold themselves in readiness to answer
any summons from him. Lastly, about 10 i. M., in ordinary times,
but not till late in the night when there was stress of work, the
tattoo, The Prince is in the tea-room, was sounded for those
whom duty still held chained to their desks, among whom, when
the Chancellor was in Berlin, was always found the faithful and
ever-prompt Lothar Bucher. This brought the days labors to an
end. The workers departed, the window-shutters were closed, and
the servants put out the lights.
In conclusion, it might be asked whether the German nation
love the man who has raised them to political power and to high
honor, who has placed them in the saddle and now expects them to
ride with him in new ways; who has caused a new sun to rise for
176 TH~ NORTH AMERICAN REVIEW.
them, brighter and fairer than any that illumined their path in
past days. My answer is that many admire him openly, many
others secretly in spile of themselves; few love him, for few un-
derstand him. But they who do love him love him above all the
world.
MORITZ BUSCH.
RECENT LITERATURE.
I.
THERE is a kind of criticism which has in modern times come
into fashion, of which Professor Goidwin Smiths Cowper is a
fair example.* As a condensed biography of the poet, his book
may be of value to cursory readers, though we have failed to dis-
cover in it any fresh fact, or any evidence of original research.
The materials which the author has employed were open to every-
body, and were already familiar to every student of biography.
Besides the somewhat heavy, and, we may say, stupid life by Hay-
ley, we had already the very minute work of Southey; and, con-
sidering the entirely recluse existence of Cowper, we have some-
times thought it remarkable that we know so much of him, and are
in possession of so many of the particulars of his singular and mel-
ancholy experiences. We owe this advantageif it be an advan-
tageto the passion of evangelical persons for the smallest details
of personal religion. Following the traditions which connect New-
ton, who is one 0f the saints of a special class of saintly persons,
with the author of The Task, these have pleased to regard the
invalid and the hypochondriac as a wonderful example of the neces-
sity of working out salvation with fear and trembling. Besides
this, there have been unspeakable scandals circulated about Cowper,
which we believe to~ be falsehoods, impure if simple. Professor
Smith darkly alludes to this foolish gossip, but, if he has heard the
worst of it, he does not say so.
It is doubtful whether the admirers of Cowper will be grateful
for this new discussion of his infirmities. Surely, in such matters,
there should be some law of limitation. What the poet did re-
mains, and will remain while the English language is written, and
some of it, of a proverbial kind, as long as it is spoken. But those
* Cowper. By Goidwin Smith. New York: Harper & Brothers.
Charles T. Congdon
Congdon, Charles T.
Recent Literature
177-RB02
RECENT LITERATURE.
I.
THERE is a kind of criticism which has in modern times come
into fashion, of which Professor Goidwin Smiths Cowper is a
fair example.* As a condensed biography of the poet, his book
may be of value to cursory readers, though we have failed to dis-
cover in it any fresh fact, or any evidence of original research.
The materials which the author has employed were open to every-
body, and were already familiar to every student of biography.
Besides the somewhat heavy, and, we may say, stupid life by Hay-
ley, we had already the very minute work of Southey; and, con-
sidering the entirely recluse existence of Cowper, we have some-
times thought it remarkable that we know so much of him, and are
in possession of so many of the particulars of his singular and mel-
ancholy experiences. We owe this advantageif it be an advan-
tageto the passion of evangelical persons for the smallest details
of personal religion. Following the traditions which connect New-
ton, who is one 0f the saints of a special class of saintly persons,
with the author of The Task, these have pleased to regard the
invalid and the hypochondriac as a wonderful example of the neces-
sity of working out salvation with fear and trembling. Besides
this, there have been unspeakable scandals circulated about Cowper,
which we believe to~ be falsehoods, impure if simple. Professor
Smith darkly alludes to this foolish gossip, but, if he has heard the
worst of it, he does not say so.
It is doubtful whether the admirers of Cowper will be grateful
for this new discussion of his infirmities. Surely, in such matters,
there should be some law of limitation. What the poet did re-
mains, and will remain while the English language is written, and
some of it, of a proverbial kind, as long as it is spoken. But those
* Cowper. By Goidwin Smith. New York: Harper & Brothers.
178 TUE NORTH AMERICAN REVIEW.
who love the tenderness of Cowper, his fresh and original relati&
to Natare, his kindly humor, his never ill-natured wit; those who
have been charmed by his domestic life in its best aspects, and
think of him as preeminently the poet of home and of the domestic
affections; those who have found plenary evidence of his innate
manliness in the strongest of his poems, and of his loving heart in
the tenderestmay well ask to be excused from any further studies
in morbid anatomy, from any further discussion of his weakness
of body and of mind, from the prying curiosity which seeks to
fathom the inscrutable, and from a renewal of the tragic tale of
his infirmities. Evidently he was an invalid and a hypochondriac,
with suicidal tendencies from the start. He had very old blood in
his veins, and some of it was not of the best. His grandfather, the
Chancellor, had been tried for murder. The poet was a weakly
boy, and at Westminster School he had been ill treated. He was
set to studying the law, because his, grandfather had been a good
lawyer, though nobody could have been less fitted for the profes-
sion than this timid and shrinking youth. At thirty-two he was a
lunatic. There was an injudicious attempt to force him into the
office of the Clerk of the Journals in the House of Lords, and he
tried to kill himself because a horror of the publicity of the place
had disturbed his intellect. Thus far, it will be observed, ieligion
had nothing to do with his melancholy. Nor can it be h6ld justly
that it had anything to do with his subsequent despondencies. If
he had remained a man of the worldif he had, at intervals, con-
tinued to giggle and make giggle with the London witsit is
more than probable that he would still have been subject to fits of
despondency, though the remorse which he experienced would have
been occasioned by secular rather than religious influences. He
was a sick man all his life.
It is with pleasure that we turn from this melancholy view of
Cowpers character, and consider what a noble work he performed
in spite of a hundred adverse c5rcumstances. All here is fresh and
beautiful. Usually he is cheerful, almost always he is vigorous;
his poetic sense invested the homeliest natural and social objects
with an exquisite charm, and he absolutely rescued English poetry
from studied artificiality. Grateful for the pure enjoyment which
his poetry gives us, let us try, at least while we read it, to forget
that clouds and shadows were about him as he wrote, and that
he smiled at the world through his bitter tears! Let us not suffer
impertinent and over-curious discussion to disturb our appreciation
RECENT LITERATURE.
I.
THERE is a kind of criticism which has in modern times come
into fashion, of which Professor Goidwin Smiths Cowper is a
fair example.* As a condensed biography of the poet, his book
may be of value to cursory readers, though we have failed to dis-
cover in it any fresh fact, or any evidence of original research.
The materials which the author has employed were open to every-
body, and were already familiar to every student of biography.
Besides the somewhat heavy, and, we may say, stupid life by Hay-
ley, we had already the very minute work of Southey; and, con-
sidering the entirely recluse existence of Cowper, we have some-
times thought it remarkable that we know so much of him, and are
in possession of so many of the particulars of his singular and mel-
ancholy experiences. We owe this advantageif it be an advan-
tageto the passion of evangelical persons for the smallest details
of personal religion. Following the traditions which connect New-
ton, who is one ~f the saints of a special class of saintly persons,
with the author of The Task, these have pleased to regard the
invalid and the hypochondriac as a wonderful example of the neces-
sity of working out salvation with fear and trembling. Besides
this, there have been unspeakable scandals circulated about Cowper,
which we believe to be falsehoods, impure if simple. Professor
Smith darkly alludes to this foolish gossip, but, if he has heard the
worst of it, he does not say so.
It is doubtful whether the admirers of Cowper will be grateful
for this new discussion of his infirmities. Surely, in such matters,
there should be some law of limitation. What the poet did re-
mains, and will remain while the English language is written, and
some of it, of a proverbial kind, as long as it is spoken. But those
* Cowper. By Goidwin Smith. New York: Harper & Brothers.
180 THE NORTH AMERICAN REVIEW.
The Faerie Queen from beginning to end; but it would be
equally cruel to ask him to make up his mind critically about these
great poems from half a dozen shreds and fragments of them, how-
ever judiciously selected. This remark, of course, does not apply
to many entire poems of the shorter kind which are included in
these volumes. Nor would we be understood to say that they are
nothing better than crutches for the critically lame, or lifts for the
hopelessly lazy. But, while they may help the young reader in
forming his poetical taste, there can be no harm in cautioning him
to search for himself in the great mine of English poetry which is
so full of wealth, and alas! of rubbish. One should not be always
in leading-strings; and no man can study for another, especially in
this department of literature.
A work like this is full of somewhat melancholy suggestions.
The perishable nature of poetical fame is inevitably indicated by
these efforts to preserve or revive it. How many who have been
of great consideration in their own day, in even the day following,
are now known only to scholars, and to those who search in libra-
ries for works which are no longer upon the counters of the book-
sellers! To be ancient is to be obsolete. The lyrical writers, if
once they get a hold upon the hearts of the people, are compara-
tively safe; and brevity is often a passport to a precarious remem-
brance. But if every time sings its own songs as it~ should, it will
not care much, in a popular sense, for the songs which are a cen-
tury or two old. The very greatest poems in all languages can be
counted upon the fingers of one hand. Yet our bards still go on
with their production, and every week witnesses the birth of a new
book of verses. If any of these shall be remembered sufficiently
at some distant day to be included in a volume of specimens, we
can not wish their writers more judicious and sensible treatment
than Mr. Wards corps of critics has bestowed upon the English
poets from Chaucer to Dryden, and promise to extend to the others
from Dryden to Keble and Clough.
TI.
THERE are lyrics, at once light, elegant, and ingenious, which
charm by their manner and disarm criticism by their jocund harm-
lessness; Mr. Austin Dobsons poems * are of this description. Mr.
Edmund C. Stedman, in the introduction which he has furnished to
* Vignettes in Rhyme, and other Verses. By Austin Dobson. New York: Henry
Molt & Co.
- RECENT LITERATURE. 181
the American edition, tells us that Mr. Dobson is forty years of age,
and has been a government clerk for twenty-two years. There is
little suggestion of even twoscore in this pretty book but only a
certain easy and salient elasticity; and, if there are occasionally
tears in the verses, they but lend fresh brilliancy to the light and
lilting measure. The book, though neither serious nor earnest, has
the sweetness which comes of constitutional good nature, and the
polished politeness which befits songs of this description. In many
of the poems there is a flavor of antiquity not in the least dusty
or moldy, however; and there is everywhere that indefinable I~ric-
d-1~rac beguilement which betrays collectors into the purchase of
old china and prettily painted statuettes.
Mr. Dobsons book will be invaluable to those verse-makers who
desire to distinguish themselves by writing in the old metres which
have been lately revivedthe rondel, the rondeau, and the bal-
lade. Now and then, as we read him, we seem to hear the tinkling
of lutes and the sweet warbling of minstrels under the windows of
bowers which went long ago to dust, with their pretty and piquant
inmates. Sometimes his songs remind us of the ingenious verses
which break the dull and indecent monotony of Drydens horrible
comedies. We do not agree with Mr. Stedman in thinking that Mr.
Dobson is like Horace, for Horace always had an earnest and seri-
ous purpose, even in his lightest mood, and never for a moment
indulges in eccentricities of thought or of meter. Mr. Dobson is like
Horace, however, in always writing like a gentleman; and if he
sometimes cloys us by his unremitting sweetness, we have only to
lay the book aside for a little while, with a certainty that the appe-
tite for these fine cates and delicacies will be sure to return.
Iv.
hr this prosaic age and in this over-busy land, the men who
devote themselves to literary pursuits and strictly meditate the
thankless Muse, are entitled to much more consideration than they
are likely to receive. Mr. Richard Henry Stoddard has long been
known as a poet of no ordinary capacity; but we must own to a
degree of surprise, upon looking into his handsome volume,* to find
how much he has written. We may as well acknowledge at once
a feeling of regret that such a poet as Mr. Stoddard undoubtedly
is should not have given us some work of greater artistic propor
* The Poems of Richard Henry Stoddard. Complete edition. New York: Charles
Scribuers Sons.
182 THE NORTH AMERICAN REVIEJY
tionsnot an epic, to be sure, since it seems that the world is to
have no more epics; but a poem in which his remarkable power of
construction and copious resources of diction might have been
more largely displayed. For there is more than one poem in this
volume which shows how strong is the sweep of Mr. Stoddards
genius, and what a thorough master he is of literary resources. His
life has been that of the scholar, if not of the recluse; his tastes,
originally and naturally delicate, have been matured until it would
not be saying too much to call them simply perfect; he has hand
and eye, and all else that a poet should havefancy, subtilty, and
imagination. Above all, he has absolute literary sense. Here is a
volume, containing we hardly dare to say how many separate and
distinct poemsthere are thousands of verses; a hundred different
forms are employed; the range of subjects is wide and various
and yet we doubt if the most fastidious critic could detect in the
whole a really bad line or a single solecism, or a passage which it
would be easy to improve. Nobody, who has not had some experi-
ence of the matter, can know how much labor all this implies. We
are sorry to say that not many American poets have written after
this fashion. They may have, in some rare cases, the genius, but
few of them have the patience, to do it. We do not propose to
make any odious comparisons; but those who think that slovenly
writing is a mark of genius, and who have been told so by their
admiring critics, would do well to learn a lesson from this pains-
taking poet.
Mr. Stoddard is fond of a short song, which he polishes with all
the care with which a lapidary polishes a gem. He likes a bit of
exquisite verse which shall be teres atque rotundus. The loving
care with which he has perfected many of these little poems is evi-
dent in their grace, tenderness, depth of feeling, and frequent depth
of thought. Open the book almost anywhere and you come across
them. It is a volume to keep upon the table, and to read in during
a spare moment. The brief music is like that of a bird, who gives
a rapid and complete and most melodious refrain, and then flies
away. Sometimes the strain is a sad one; oftener it is calmly
serene, and there is not a whine in this whole collection, which is
more than can be said of a great many volumes of American poetry.
Indeed, we have been much impressed by the thorough manliness of
Mr. Stoddards work. He is often pensive, as all men who think
poetically must be; but he is never maudlin. There are evidences
of sorrow, and unrest, and disappointment; but the reader may be
RECENT LITERATURE. 183
assured that they give no tone to the book, which, take it for all in
all, is at least as healthy a volume of poems as there is in the Eng-
lish language. Mr. Stoddard is an artist, and an artist must some-
times paint the gloomy as well as the glad; but the general tenor
of his work shows the writer to be a well-balanced and even square-
shouldered man, who knows precisely what he is about, and man-
ages even the minor key with an energy which we might call ro-
bust if it were less musical. There is tragedy in these poems and
sometimes pathos, but they spring naturally from the topic, and are
not pumped up for the occasion.
Many of Mr. Stoddards poems have, indeed, a half-sportive
character. Doing well whatever he undertakes, he writes vers de
soci~t~ sometimes with an easy aluzndon, which proves how sure he
is of his hand. There are occasional poems, too, suggested by cur-
rent topics, which are strong and self-sustained. There is a suffi-
cient love of Nature, and frequent passages which prove it genuine.
But Mr. Stoddard is substantially a poet of the passions and of the
emotions; and not seldom he rises to a height of tragic expression,
and depicts the darker experiences of the soul with unusual force.
Yet, as we have said, he is never unpleasantly subjective. He is
too good at his art for that. What is to be sung he sings naturally.
What is to be told he tells in a straightforward, earnest way; and
with all his other merits he has unusual power of poetical narrative.
His whole book may be heartily commended to all those who care
for healthy and natural poetry, and who have no desire to be either
puzzled or bored.
v.
THERE are poets who, however they may change for the better
in other respects, never outgrow their mannerisms. It has been
said of Mr. Wordsworth that he lost the world for a quibble, and
was content to lose it. Mr. Browning is represented as having
lately expressed some regret, not that he has been an obscure
writer, for his own conscience doubtless acquits him upon that score,
but that the majority of his readers should have found him so.
Mr. Swinburne, in this new volume of poems,* exhibits the same
peculiarities which marked his earlier works. There is the same
audacity of diction, profusion of double-epithets, muscular and
sometimes spasmodic versatility of metre, and unbridled exuberance
of imagination. Though to many the principal poems in this little
* Songs of the Springtides. By Algernon Charles Swinburne. New York: R.
Worthington.
184 THE NORTH AMERICAN RE VIE W
volume will be insoluble puzzles, it will be read with great satis-
faction by those who do not trouble themselves about sense, if only
they are gratified by sound. If they do not understand, they will
think that they do, which perhaps is just as well. There is something
very fascinating about Mr. Swinburnes lyrical swing and ever-
shifting variety of versification, and we wander through his pages
as through some land of faery or wilderness of mingled beauty and
terror. Perhaps we should not err in pronouncing him, though he
does not use dramatic forms, the most dramatic of modern poets,
for in his works there are often the most subtile delineations of
human passion, and the most vigorous pictures of the deepest, the
darkest, and the brightest experiences of human life. It seems to
us that the poems in this volume are among the most intellectual
which he has produced. As he has advanced in years he has lost
something of that downright sensuousness which once shocked some
readers of his works, and, we are obliged to add, delighted others.
Whatever else it may be, this volume is at least cleanly, with no
touch of prurience and no suspicion of physical coarseness.
The present volume contains Mr. Swinburnes Birthday Ode
for the Anniversay Festival of Victor Hugo the fine tribute o~ a
man of genius to the genius of another. The idea of the poem is
thoroughly original. Anything exactly like this piece of rhythmical
criticism we do not remember to have seen in the literature of any
language. All the great works of Hugo are chronologically alluded
to, and, lest there should be any misunderstanding on the part of the
reader, Mr. Swinburne has annexed a catalogue of Hugos books,
with reference to the places in which they are treated in the ode.
He shares the Frenchmans hearty hatred of the last Emperor of
France, and prints a special sonnet On the Profane Desecration of
Westminster Abbey, by the Erection of a Monument to the Son of
Napoleon IH. He keeps no terms with the poisonous race, and
calls upon the elect of Englands dead to leave the abbey in dis-
gust. Accustomed to use plain language on all occasions, Mr. Swim-
burne particularly uses it upon this; and speaks of Dean Stanley
in a way which will shock the friends and admirers of that amiable
divine
Who had the glory of these graves in trust,
And turned it to a hissing.
CHARLES T. CONGDON.
THE
NORTH AMERICAN
REVIEW.
SEPTEMBER, 1880.
No. 286.
Tros Tyriusque mihi nullo discrimine agetur.
NEW YORK:
D. APPLETON AND COMPANY.
1880.
COPYRIGHT BY
ALLEN THORNDIKE RICE.
1880.