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The Making of Arguments by J. H. Gardiner

Part 5 out of 5

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case to which I referred just now. The circumstantial evidence may be
better and more convincing than the testimonial evidence; for it may be
impossible, under the conditions that I have defined, to suppose that
the man met his death from any cause but the violent blow of an ax
wielded by another man. The circumstantial evidence in favor of a murder
having been committed, in that case, is as complete and as convincing as
evidence can be. It is evidence which is open to no doubt and to no
falsification. But the testimony of a witness is open to multitudinous
doubts. He may have been mistaken. He may have been actuated by malice.
It has constantly happened that even an accurate man has declared that a
thing has happened in this, that, or the other way, when a careful
analysis of the circumstantial evidence has shown that it did not happen
in that way, but in some other way.

We may now consider the evidence in favor of or against the three
hypotheses. Let me first direct your attention to what is to be said
about the hypothesis of the eternity of the state of things in which we
now live. What will first strike you is, that it is a hypothesis which,
whether true or false, is not capable of verification by any evidence.
For, in order to obtain either circumstantial or testimonial evidence
sufficient to prove the eternity of duration of the present state of
nature, you must have an eternity of witnesses or an infinity of
circumstances, and neither of these is attainable. It is utterly
impossible that such evidence should be carried beyond a certain point
of time; and all that could be said, at most, would be, that so far as
the evidence could be traced, there was nothing to contradict the
hypothesis. But when you look, not to the testimonial evidence--which,
considering the relative insignificance of the antiquity of human
records, might not be good for much in this case--but to the
circumstantial evidence, then you will find that this hypothesis is
absolutely incompatible with such evidence as we have; which is of so
plain and so simple a character that it is impossible in any way to
escape from the conclusions which it forces upon us.

You are, doubtless, all aware that the outer substance of the earth,
which alone is accessible to direct observation, is not of a homogeneous
character, but that it is made up of a number of layers or strata, the
titles of the principal groups of which are placed upon the
accompanying diagram.[68] Each of these groups represents a number of
beds of sand, of stone, of clay, of slate, and of various other

On careful examination, it is found that the materials of which each of
these layers of more or less hard rock are composed are, for the most
part, of the same nature as those which are at present being formed
under known conditions on the surface of the earth. For example, the
chalk, which constitutes a great part of the Cretaceous formation in
some parts of the world, is practically identical in its physical and
chemical characters with a substance which is now being formed at the
bottom of the Atlantic Ocean, and covers an enormous area; other beds of
rock are comparable with the sands which art; being formed upon
seashores, packed together, and so on. Thus, omitting rocks of igneous
origin, it is demonstrable that all these beds of stone, of which a
total of not less than seventy thousand feet is known, have been formed
by natural agencies, either out of the waste and washing of the dry
land, or else by the accumulation of the exuviae of plants and animals.
Many of these strata are full of such exuviae--the so-called

Remains of thousands of species of animals and plants, as perfectly
recognizable as those of existing forms of life which you meet with in
museums, or as the shells which you pick up upon the seabeach, have been
embedded in the ancient sands, or muds, or limestones, just as they are
being embedded now, in sandy, or clayey, or calcareous subaqueous
deposits. They furnish us with a record, the general nature of which
cannot be misinterpreted, of the kinds of things that have lived upon
thy surface of the earth during the time that is registered by this
great thickness of stratified rocks. But even a superficial study of
these fossils shows us that the animals and plants which live at the
present time have had only a temporary duration; for the remains of such
modern forms of life are met with, for the most part, only in
the uppermost or latest tertiaries, and their number rapidly diminishes
in the lower deposits of that epoch. In the older tertiaries, the places
of existing animals and plants are taken by other forms, as numerous and
diversified as those which live now in the same localities, but more or
less different from them; in the Mesozoic rocks, these are replaced by
others yet more divergent from modern types; and in the Paleozoic
formations the contrast is still more marked. Thus the circumstantial
evidence absolutely negatives the conception of the eternity of the
present condition of things. We can say with certainly that the present
condition of things has existed for a comparatively short period; and
that, so far as animal and vegetable nature are concerned, it has been
preceded by a different condition. We can pursue this evidence until we
reach the lowest of the stratified rocks, in which we lose the
indications of life altogether. The hypothesis of the eternity of the
present state of nature may therefore be put out of court.

We now come to what I will term Milton's hypothesis--the hypothesis that
the present condition of things has endured for a comparatively short
time; and, at the commencement of that time, came into existence within
the course of six days. I doubt not that it may have excited some
surprise in your minds that I should have spoken of this as Milton's
hypothesis, rather than that I should have chosen the terms which are
more customary, such as "the doctrine of creation," or the "Biblical
doctrine," or "the doctrine of Moses," all of which denominations, as
applied to the hypothesis to which I have just referred, are certainly
much more familiar to you than the title of the Miltonic hypothesis. But
I have had what I cannot but think are very weighty reasons for taking
the course which T have pursued. In the first place, I have discarded
the title of the doctrine of "creation," because my present business is
not with the question why the objects which constitute Nature came into
existence, but when they came into existence, and in what order. This is
as strictly a historical question as the question when the Angles and
the Jutes invaded England, and whether they preceded or followed the
Romans. But the question about creation is a philosophical problem, and
one which cannot be solved, or even approached, by the historical
method. What we want to learn is, whether the facts, so far as they are
known, afford evidence that things arose in the way described-by Milton,
or whether they do not; and, when that question is settled, it will be
time enough to inquire into the causes of their origination.

In the second place, I have not spoken of this doctrine as the Biblical
doctrine, It is quite true that persons as diverse in their general
views as Milton the Protestant and the celebrated Jesuit Father Suarez,
each put upon the first chapter of Genesis the interpretation embodied
in Milton's poem. It is quite true that this interpretation is that
which has been instilled into every one of us in our childhood; but I do
not for one moment venture to say that it can properly be called the
Biblical doctrine. It is not my business, and does not lie within my
competency, to say what the Hebrew text does, and what it does not
signify; moreover, were I to affirm that this is the Biblical doctrine,
I should be met by the authority of many eminent scholars, to say
nothing of men of science, who, at various times, have absolutely denied
that any such doctrine is to be found in Genesis. If we are to listen to
many expositors of no mean authority, we must believe that what seems so
clearly defined in Genesis--as if very great pains had been taken that
there should be no possibility of mistake--is not the meaning of the
text at all. The account is divided into periods that we may make just
as long or short as convenience requires. We are also to understand that
it is consistent with the original text to believe that the most complex
plants and animals may have been evolved by natural processes, lasting
for millions of years, out of structureless rudiments. A person who is
not a Hebrew scholar can only stand aside and admire the marvelous
flexibility of a language which admits of such diverse interpretations.
But assuredly, in the face of such contradictions of authority upon
matters respecting which he is incompetent to form any judgment, he will
abstain, as I do, from giving any opinion.

In the third place, I have carefully abstained from speaking of this as
the Mosaic doctrine, because we are now assured upon the authority of
the highest critics, and even of dignitaries of the Church, that there
is no evidence that Moses wrote the Book of Genesis, or knew anything
about it. You will understand that I give no judgment--it would be an
impertinence upon my part to volunteer even a suggestion--upon such a
subject. But, that being the state of opinion among the scholars and the
clergy, it is well for the unlearned in Hebrew lore, and for the laity,
to avoid entangling themselves in such a vexed question. Happily, Milton
leaves us no excuse for doubting what he means, and I shall therefore be
safe in speaking of the opinion in question as the Miltonic hypothesis.

Now we have to test that hypothesis. For my part, I have no prejudice
one way or the other. If there is evidence in favor of this view, I am
burdened by no theoretical difficulties in the way of accepting it: but
there must be evidence. Scientific men get an awkward habit--no, I won't
call it that, for it is a valuable habit--of believing nothing unless
there is evidence for it; and they have a way of looking upon belief
which is not based upon evidence, not only as illogical, but as immoral.
We will, if you please, test this view by the circumstantial evidence
alone; for, from what I have said, you will understand that I do not
propose to discuss the question of what testimonial evidence is to be
adduced in favor of it. If those whose business it is to judge are not
at one as to the authenticity of the only evidence of that kind which is
offered, nor as to the facts to which it bears witness, the discussion
of such evidence is superfluous.

But I may be permitted to regret this necessity of rejecting the
testimonial evidence the less, because the examination of the
circumstantial evidence leads to the conclusion, not only that it is
incompetent to justify the hypothesis, but that, so far as it goes, it
is contrary to the hypothesis.

The considerations upon which I base this conclusion are of the simplest
possible character. The Miltonic hypothesis contains assertions of a
very definite character relating to the succession of living forms. It
is stated that plants, for example, made their appearance upon the third
day, and not before. And you will understand that what the poet means
by plants are such plants as now live, the ancestors, in the ordinary
way of propagation of like by like, of the trees and shrubs which
flourish in the present world. It must needs be so; for, if they were
different, either the existing plants have been the result of a separate
origination since that described by Milton, of which we have no record,
nor any ground for supposition that such an occurrence has taken place;
or else they have arisen by a process of evolution from the original

In the second place, it is clear that there was no animal life before
the fifth day, and that, on the fifth day, aquatic animals and birds
appeared. And. it is further clear that terrestrial living things, other
than birds, made their appearance upon the sixth day, and not before.
Hence, it follows that, if, in the large mass of circumstantial evidence
as to what really has happened in the past history of the globe, we find
indications of the existence of terrestrial animals, other than birds,
at a certain period, it is perfectly certain that all that has taken
place since that time must be referred to the sixth day.

In the great Carboniferous formation,[69] whence America derives so vast
a proportion of her actual and potential wealth, in the beds of coal
which have been formed from the vegetation of that period, we find
abundant evidence of the existence of terrestrial animals. They have
been described, not only by European but by your own naturalists. There
are to be found numerous insects allied to our cockroaches. There are to
be found spiders and scorpions of large size, the latter so similar to
existing scorpions that it requires the practiced eye of the naturalist
to distinguish them. Inasmuch as these animals can be proved to have
been alive in the Carboniferous epoch, it is perfectly clear that, if
the Miltonic account is to be accepted, the huge mass of rocks extending
from the middle of the Paleozoic formations to the uppermost members of
the series, must belong to the day which is termed by Milton the sixth.
But, further, it is expressly stated that aquatic animals took their
origin upon the fifth day, and not before; hence, all formations in
which remains of aquatic animals can be proved to exist, and which
therefore testify that such animals lived at the time when these
formations were in course of deposition, must have been deposited during
or since the period which Milton speaks of as the fifth. But there is
absolutely no fossiliferous formation in which the remains of aquatic
animals are absent. The oldest fossils in the Silurian rocks[70] are
exuviae of marine animals; and if the view which is entertained by
Principal Dawson and Dr. Carpenter respecting the nature of the _eozooen_
be well founded, aquatic animals existed at a period as far antecedent
to the deposition of the coal as the coal is from us; inasmuch as the
_eozooen_ is met with in those Laurentian strata which lie at the bottom
of the series of stratified rocks. Hence it follows, plainly enough,
that the whole series of stratified rocks, if they are to be brought
into harmony with Milton, must be referred to the fifth and sixth days,
and that we cannot hope to find the slightest trace of the products of
the earlier days in the geological record. When we consider these simple
facts, we see how absolutely futile are the attempts that have been made
to draw a parallel between the story told by so much of the crust of the
earth as is known to us and the story which Milton tells. The whole
series of fossiliferous stratified rocks must be referred to the last
two days; and neither the Carboniferous, nor any other, formation can
afford evidence of the work of the third day.

Not only is there this objection to any attempt to establish a harmony
between the Miltonic account and the facts recorded in the fossiliferous
rocks, but there is a further difficulty. According to the Miltonic
account, the order in which animals should have made their appearance in
the stratified rocks would be this: Fishes, including the great whales,
and birds; after them, all varieties of terrestrial animals except

Nothing could be further from the facts as we find them; we know of not
the slightest evidence of the existence of birds before the Jurassic, or
perhaps the Triassic, formation;[71] while terrestrial animals, as we
have just seen, occur in the Carboniferous rocks.

If there were any harmony between the Miltonic account and the
circumstantial evidence, we ought to have abundant evidence of the
existence of birds in the Carboniferous, the Devonian, and the Silurian
rocks. I need hardly say that this is not the case, and that not a trace
of birds makes its appearance until the Tar later period which I have

And again, if it be true that all varieties of fishes and the great
whales, and the like, made their appearance on the fifth day, we ought
to find the remains of these animals in the older rocks--in those which
were deposited before the Carboniferous epoch. Fishes we do find, in
considerable number and variety; but the great whales are absent, and
the fishes are not such as now live. Not one solitary species of fish
now in existence is to be found in the Devonian or Silurian formations.
Hence we are introduced afresh to the dilemma which I have already
placed before you: either the animals which came into existence on the
fifth day were not such as those which are found at present, are not the
direct and immediate ancestors of those which now exist; in which case
either fresh creations of which nothing is said, or a process of
evolution must have occurred; or else the whole story must be given up
as not only devoid of any circumstantial evidence, but contrary to such
evidence as exists.

I placed before you in a few words, some little time ago, a statement of
the sum and substance of Milton's hypothesis. Let me now try to state as
briefly, the effect of the circumstantial evidence bearing upon the past
history of the earth which is furnished, without the possibility of
mistake, with no chance of error as to its chief features, by the
stratified rocks. What we find is, that the great series of formations
represents a period of time of which our human chronologies hardly
afford us a unit of measure. I will not pretend to say how we ought to
estimate this time, in millions or in billions of years. For my purpose,
the determination of its absolute duration is wholly unessential. But
that the time was enormous there can be no question.

It results from the simplest methods of interpretation, that leaving out
of view certain patches of metamorphosed rocks, and certain volcanic
products, all that is now dry land has once been at the bottom of the
waters. It is perfectly certain that, at a comparatively recent period
of the world's history--the Cretaceous epoch--none of the great physical
features which at present mark the surface of the globe existed. It is
certain that the Rocky Mountains were not. It is certain that the
Himalaya Mountains were not. It is certain that the Alps and the
Pyrenees had no existence. The evidence is of the plainest possible
character, and is simply this:--We find raised up on the flanks of these
mountains, elevated by the forces of upheaval which have given rise to
them, masses of Cretaceous rock which formed the bottom of the sea
before those mountains existed. It is therefore clear that the elevatory
forces which gave rise to the mountains operated subsequently to the
Cretaceous epoch; and that the mountains themselves are largely made up
of the materials deposited in the sea which once occupied their place.
As we go back in time, we meet with constant alternations of sea and
land, of estuary and open ocean; and, in correspondence with these
alternations, we observe the changes in the fauna and flora to which I
have referred.

But the inspection of these changes gives us no right to believe that
there has been any discontinuity in natural processes. There is no trace
of general cataclysms, of universal deluges, or sudden destructions of a
whole fauna or flora. The appearances which were formerly interpreted in
that way have all been shown to be delusive, as our knowledge has
increased and as the blanks which formerly appeared to exist between the
different formations have been filled up. That there is no absolute
break between formation and formation, that there has been no sudden
disappearance of all the forms of life and replacement of them by
others, but that changes have gone on slowly and gradually, that one
type has died out and another has taken its place, and that thus, by
insensible degrees, one fauna has been replaced by another, are
conclusions strengthened by constantly increasing evidence. So that
within the whole of the immense period indicated by the fossiliferous
stratified rocks, there is assuredly not the slightest proof of any
break in the uniformity of Nature's operations, no indication that
events have followed other than a clear and orderly sequence.

That, I say, is the natural and obvious teaching of the circumstantial
evidence contained in the stratified rocks. I leave you to consider how
far, by any ingenuity of interpretation, by any stretching of the
meaning of language, it can be brought into harmony with the Miltonic

There remains the third hypothesis, that of which I have spoken as the
hypothesis of evolution; and I purpose that, in lectures to come, we
should discuss it as carefully as we have considered the other two
hypotheses. I need not say that it is quite hopeless to look for
testimonial evidence of evolution. The very nature of the case precludes
the possibility of such evidence, for the human race can no more be
expected to testify to its own origin, than a child can be tendered as a
witness of its own birth. Our sole inquiry is, what foundation
circumstantial evidence lends to the hypothesis, or whether it lends
none, or whether it controverts the hypothesis. I shall deal with the
matter entirely as a question of history. I shall not indulge in the
discussion of any speculative probabilities. I shall not attempt to show
that Nature is unintelligible unless we adopt some such hypothesis. For
anything I know about the matter, it may be the way of Nature to be
unintelligible; she is often puzzling, and I have no reason to suppose
that she is bound to fit herself to our notions.

I shall place before you three kinds of evidence entirely based upon
what is known of the forms of animal life which are contained in the
series of stratified rocks. I shall endeavor to show you that there is
one kind of evidence which is neutral, which neither helps evolution nor
is inconsistent with it. I shall then bring forward a second kind of
evidence which indicates a strong probability in favor of evolution, but
does not prove it; and, lastly, I shall adduce a third kind of evidence
which, being as complete as any evidence which we can hope to obtain
upon such a subject, and being wholly and strikingly in favor of
evolution, may fairly be called demonstrative evidence of its



This article is a scientific demonstration of a new fact. It shows
clearly the processes of scientific reasoning based on the methods known
to Logic as the Methods of Agreement and Difference. The theory that the
germs of the disease are carried by mosquitoes seems first to have
suggested itself to Dr. Sternberg and to Dr. Finlay through noticing a
similarity of phenomena in many cases under different conditions. Yet,
however plausible, the theory, neither of them could declare that he had
discovered the fact until the experiments carried on under rigorous
precautions had been tried. By these experiments all other causes were
ruled out of consideration.

The discoveries which have been made in the past twenty-five years with
reference to the etiology[73] of infectious diseases constitute the
greatest achievement of scientific medicine and afford a substantial
basis for the application of intelligent measures of prophylaxis.[74] We
know the specific cause ("germ") of typhoid fever, of pulmonary
consumption, of cholera, of diphtheria, of erysipelas, of croupous
pneumonia, of the malarial fevers, and of various other infectious
diseases of man and of the domestic animals, but, up to the present
time, all efforts to discover the germ of yellow fever have been without
success. The present writer, as a member of the Havana Yellow Fever
Commission, in 1879, made the first systematic attempt to solve the
unsettled questions relating to yellow fever etiology by modern methods
of research.

Naturally the first and most important question to engage my attention
was that relating to the specific infectious agent, or "germ," which
there was every reason to believe must be found in the bodies of
infected individuals. Was this germ present in the blood, as in the case
of relapsing fever; or was it to be found in the organs and tissues
which upon post-mortem examination give evidence of pathological
changes, as in typhoid fever, pneumonia, and diphtheria; or was it to be
found in the alimentary canal, as in cholera and dysentery?

The clinical history of the disease indicated a general blood
infection. As my equipment included the best microscopical apparatus
made, I had strong hopes that in properly stained preparations of blood
taken from the circulation of yellow fever patients my Zeiss 1-18 oil
immersion objective would reveal to me the germ I was in search of. But
I was doomed to disappointment. Repeated examinations of blood from
patients in every stage of the disease failed to demonstrate the
presence of microorganisms of any kind. My subsequent investigations in
Havana, Vera Cruz, and Rio de Janeiro, made in 1887, 1888, and 1889,
were equally unsuccessful. And numerous competent microscopists of
various nations have since searched in vain for this elusive germ.
Another method of attacking this problem consists in introducing blood
from yellow fever patients or recent cadavers into various "culture
media" for the purpose of cultivating any germ that might be present.
Extended researches of this kind also gave a negative result, which in
my final report I stated as follows:

The specific cause of yellow fever has not yet been demonstrated.

It is demonstrated that microorganisms, capable of development in
the culture media usually employed by the bacteriologists, are only
found in the blood and tissues of yellow fever cadavers in
exceptional cases, when cultures are made very soon after death.

Since this report was made, various investigators have attacked the
question of yellow fever etiology, and one of them has made very
positive claims to the discovery of the specific germ. I refer to the
Italian bacteriologist, Sanarelli. His researches were made in Brazil,
and, singularly enough, he found in the blood of the first case examined
by him a bacillus. It was present in large numbers, but this case
proved to be unique, for neither Sanarelli nor any one else has since;
found it in such abundance. It has been found in small numbers in the
blood and tissues of yellow fever cadavers in a certain number of the
cases examined. But carefully conducted researches by competent
bacteriologists have failed to demonstrate its presence in a
considerable proportion of the cases, and the recent researches of Reed,
Carroll, and Agramonte, to which I shall shortly refer, demonstrate
conclusively that the bacillus of Sanarelli has nothing to do with the
etiology of yellow fever.

So far as I am aware, Dr. Carlos Finlay, of Havana, Cuba, was the first
to suggest the transmission of yellow fever by mosquitoes. In a
communication made to the Academy of Sciences of Havana, in October,
1881, he gave an account of his first attempts to demonstrate the truth
of his theory. In a paper contributed to _The Edinburgh Medical Journal_
in 1894, Dr. Finlay gives a summary of his experimental inoculations up
to that date as follows:

A summary account of the experiments performed by myself (and some also
by my friend, Dr. Delgado), during the last twelve years, will enable
the reader to judge for himself. The experiment has consisted in first
applying a captive mosquito to a yellow fever patient, allowing it to
introduce its lance and to fill itself with blood; next, after the lapse
of two or more days, applying the same mosquito to the skin of a person
who is considered susceptible to yellow fever: and, finally, observing
the effects, not only during the first two weeks, but during periods of
several years, so as to appreciate the amount of immunity that should

Between the 30th of June, 1881, and the 2d of December, 1893,
eighty-eight persons have been so inoculated. All were white adults,
uniting the conditions which justify the assumption that they were
susceptible to yellow fever. Only three were women. The chronological
distribution of the inoculations was as follows: seven in 1881, ten in
1883, nine in 1885, three in 1886, twelve in 1887, nine in 1888, seven
in 1889, ten in 1890, eight in 1891, three in 1892, and ten in 1893.

The yellow fever patients upon whom the mosquitoes were contaminated
were, almost in every instance, well-marked cases of the albuminuric or
melanoalbuminuric forms, in the second, third, fourth, fifth, or sixth
day of the disease. In some of the susceptible subjects, the inoculation
was repeated when the source of the contamination appeared uncertain.

Among the eighty-seven who have been under observation, the following
results have been recorded:

Within a term of days, varying between five and twenty-five after the
inoculation, _one_ presented a mild albuminuric attack, and _thirteen,
only_ "acclimation fevers."

* * * * *

While Finlay's theory appeared to be plausible and to explain many of
the facts relating to the etiology of yellow fever, his experimental
inoculations not only failed to give it substantial support, but the
negative results, as reported, by himself, seemed to be opposed to the
view that yellow fever is transmitted by the mosquito. It is true that
he reports one case which "presented a mild albuminuric attack" which we
may accept as an attack of yellow fever. But in view of the fact that
this case occurred in the city of Havana, where yellow fever is endemic,
and of the eighty-six negative results from similar inoculations, the
inference seemed justified that in this case the disease was contracted
in some other way than as a result of the so-called "mosquito
inoculation." The thirteen cases in which only "acclimation fevers"
occurred "within a term of days varying between five and twenty-five
after the inoculation" appeared to me to have no value as giving support
to Finlay's theory; first, because these "acclimation fevers" could not
be identified as mild cases of yellow fever; second, because the
ordinary method of incubation in yellow fever, is less than five days;
and, third, because these individuals, having recently arrived in
Havana, were liable to attacks of yellow fever, or of "acclimation
fever" as a result of their residence in this city and quite
independently of Dr. Finlay's mosquito inoculations. For these reasons
Dr. Finlay's experiments failed to convince the medical profession
generally of the truth of his theory relating to the transmission of
yellow fever, and this important question remained in doubt and a
subject of controversy. One party regarded the disease as personally
contagious and supposed it to be communicated directly from the sick to
the well, as in the case of other contagious diseases, such as smallpox,
scarlet fever, etc. Opposed to this theory was the fact that in
innumerable instances nonimmune persons had been known to care for
yellow-fever patients as nurses, or physicians, without contracting the
disease; also the fact that the epidemic extension of the disease
depends upon external conditions relating to temperature, altitude,
rainfall, etc. It was a well-established fact that the disease is
arrested by cold weather and does not prevail in northern latitudes or
at considerable altitudes. But diseases which are directly transmitted
from man to man by personal contact have no such limitations. The
alternate theory took account of the above-mentioned facts and assumed
that the disease was indirectly transmitted from sick to well, as is the
case in typhoid fever and cholera, and that its germ was capable of
development external to the human body when conditions were favorable.
These conditions were believed to be a certain elevation of the
temperature, the presence of moisture and suitable; organic pabulum
(filth) for the development of the germ. The two first-mentioned
conditions were known to be essential, the third was a subject of

Yellow fever epidemics do not occur in the winter months in the
temperate zone and they do not occur in arid regions. As epidemics have
frequently prevailed in seacoast cities known to be in an insanitary
condition, it has been generally assumed that the presence of
decomposing organic material is favorable for the development of an
epidemic and that, like typhoid fever and cholera, yellow fever is a
"filth disease." Opposed to this view, however, is the fact that
epidemics have frequently occurred in localities (e.g. at military
posts) where no local insanitary conditions were to be found. Moreover,
there are marked differences in regard to the transmission of the
recognized filth diseases--typhoid fever and cholera--and yellow fever.
The first-mentioned diseases are largely propagated by means of a
contaminated water supply, whereas there is no evidence that yellow
fever is ever communicated in this way. Typhoid fever and cholera
prevail in all parts of the world and may prevail at any season of the
year, although cholera, as a rule, is a disease of the summer months. On
the other hand, yellow fever has a very restricted area of prevalence
and is essentially a disease of seaboard cities and of warm climates.
Evidently neither of the theories referred to accounts for all of the
observed facts with reference to the endemic prevalence and epidemic
extension of the disease under consideration.

Having for years given much thought to this subject, I became some time
since impressed with the view that probably in yellow fever, as in the
malarial fevers, there is an "intermediate host." I therefore suggested
to Dr. Reed, president of the board appointed upon my recommendation for
the study of this disease in the island of Cuba, that he should give
special attention to the possibility of transmission by some insect,
although the experiments of Finlay seemed to show that this insect was
not a mosquito of the genus _Culex_, such as he had used in his
inoculation experiments. I also urged that efforts should be made to
ascertain definitely whether the disease can be communicated from man to
man by blood inoculations. Evidently if this is the case the blood must
contain the living infectious agent upon which the propagation of the
disease depends, notwithstanding the fact that all attempts to
demonstrate the presence of such a germ in the blood, by means of
microscope and culture methods, have proved unavailing. I had previously
demonstrated by repeated experiments that inoculations of yellow fever
blood into lower animals--dogs, rabbits, guinea pigs--give a negative
result, but this negative result might well be because these animals
were not susceptible to the disease and could not be accepted as showing
that the germ of yellow fever was not present in the blood. A single
inoculation experiment on man had been made in my presence in the city
of Vera Cruz, in 1887, by Dr. Daniel Ruiz, who was in charge of the
civil hospital in that city. But this experiment was inconclusive for
the reason that the patient from whom the blood was obtained was in the
eighth day of the disease, and it was quite possible that the specific
germ might have been present at an earlier period and that after a
certain number of days the natural resources of the body are sufficient
to effect its destruction, or in some way to cause its disappearance
from the circulation.

This was the status of the question of yellow fever etiology when Dr.
Reed and his associates commenced their investigations in Cuba during
the summer of 1900. In a "Preliminary Note," read at the meeting of the
American Public Health Association, October 22, 1900, the board gave a
report of three cases of yellow fever which they believed to be direct
results of mosquito inoculations. Two of these were members of the
board, viz., Dr. Jesse W. Lazear and Dr. James Carroll, who voluntarily
submitted themselves to the experiment. Dr. Carroll suffered a severe
attack of the disease and recovered, but Dr. Lazear fell a victim to his
enthusiasm and died in the cause of science and humanity. His death
occurred on September 25, after an illness of six days' duration. About
the same time nine other individuals who volunteered for the experiment
were bitten by infected mosquitoes--i.e. by mosquitoes which had
previously been allowed to fill themselves with blood from yellow fever
cases--and in these cases the result was negative. In considering the
experimental evidence thus far obtained, the attention of the members of
the board was attracted by the fact that in the nine inoculations with a
negative result "the time elapsing between the biting of the mosquito
and the inoculation of the healthy subject varied in seven cases from
two to eight days, and in the remaining two from ten to thirteen days,
whereas in two of the three successful cases the mosquito had been kept
for twelve days or longer." In the third case, that of Dr. Lazear, the
facts are stated in the report of the board as follows:

Case 3. Dr. Jesse W. Lazear, Acting Assistant Surgeon U.S. Army, a
member of this board, was bitten on August 16, 1900 (Case 3, Table III)
by a mosquito (_Culex fasciatus_), which ten days previously had been
contaminated by biting a very mild case of yellow fever (fifth day). No
appreciable disturbance of health followed this inoculation.

On September 13, 1900 (forenoon), Dr. Lazear, while on a visit to Las
Animas Hospital, and while collecting blood from yellow fever patients
for study, was bitten by a _Culex_ mosquito (variety undetermined). As
Dr. Lazear had been previously bitten by a contaminated insect without
after effects, he deliberately allowed this particular mosquito, which
had settled on the back of his hand, to remain until it had satisfied
its hunger.

On the evening of September 18, five days after the bite, Dr. Lazear
complained of feeling "out of sorts," and had a chill at 8 P.M.

On September 19, twelve o'clock noon, his temperature was 102.4 deg., pulse
112; his eyes were injected and his face suffused; at 3 P.M. temperature
was 103.4 deg., pulse 104; 6 P.M., temperature 103.8 deg. and pulse 106; albumin
appeared in the urine. Jaundice appeared on the third day. The
subsequent history of this case was one of progressive and fatal yellow
fever, the death of our much-lamented colleague having occurred on the
evening of September 25, 1900.

Evidently in this case the evidence is not satisfactory as to the fatal
attack being the result of the bite by a mosquito "while on a visit to
Las Animas Hospital," although Dr. Lazear himself was thoroughly
convinced that this was the direct cause of his attack.

The inference by Dr. Reed and his associates, from the experiments thus
far made, was that yellow fever may be; transmitted by mosquitoes of the
genus _Culex_, but that in order to convey the infection to a nonimmune
individual the insect must be kept for twelve days or longer after it
has filled itself with blood from a yellow fever patient in the earlier
stages of the disease. In other words, that a certain period of
incubation is required in the body of the insect before the germ reaches
its salivary glands, and consequently before it is able to inoculate any
individual with the germs of yellow fever. This inference, based upon
experimental data, received support from other observations, which have
been repeatedly made, with reference to the introduction and spread of
yellow fever in localities favorable to its propagation. When a case is
imported to one of our southern seaport cities, from Havana, Vera Cruz,
or some other endemic focus of the disease, an interval of two weeks or
more occurs before secondary cases are developed as a result of such
importation. In the light of our present knowledge this is readily
understood. A certain number of mosquitoes having filled themselves with
blood from this first case after an interval of twelve days or more bite
nonimmune individuals living in the vicinity, and these individuals
after a brief period of incubation fall sick with the disease; being
bitten by other mosquitoes they serve to transmit the disease through
the "intermediate host" to still others. Thus the epidemic extends, at
first slowly from house to house, then more rapidly, as by geometrical

It will be seen that the essential difference between the successful
experiments of the board of which Dr. Reed is president and the
unsuccessful experiments of Finlay consists of the length of time during
which the mosquitoes were kept after filling themselves with blood from
a yellow fever patient. In Finlay's experiments the interval was usually
short,--from two to five or six days,--and it will be noted that in the
experiments of Reed and his associates the result was invariably
negative when the insect had been kept less than eight days (7 cases).

Having obtained what they considered satisfactory evidence that yellow
fever is transmitted by mosquitoes, Dr. Reed and his associates
proceeded to extend their experiments for the purpose of establishing
the fact in such a positive manner that the medical profession and the
scientific world generally might be convinced of the reliability of the
experimental evidence upon which their conclusions were based. These
conclusions, which have been fully justified by their subsequent
experiments, were stated in their "Preliminary Note" as follows:

1. Bacillus icteroides (Sanarelli) stands in no causative relation
to yellow fever, but, when present, should be considered as a
secondary invader in this disease.

2. The mosquito serves as the intermediate host for the parasite of
yellow fever.

In "An Additional Note" read at the Pan-American Medical Congress held
in Havana, Cuba, February 4,-7, 1901, a report is made of the further
experiments made up to that date. In order that the absolute scientific
value of these experiments may be fully appreciated I shall quote quite
freely from this report with reference to the methods adopted for the
purpose of excluding all sources of infection other than the mosquito

In order to exercise perfect control over the movements of those
individuals who were to be subjected to experimentation, and to avoid
any other possible source of infection, a location was selected in an
open and uncultivated field, about one mile from the town of Quemados,
Cuba. Here an experimental sanitary station was established under the
complete control of the senior member of this board. This station was
named Camp Lazear, in honor of our late colleague, Dr. Jesse W. Lazear,
Acting Assistant Surgeon U.S.A., who died of yellow fever, while
courageously investigating the causation of this disease. The site
selected was well drained, freely exposed to sunlight and winds, and
from every point of view satisfactory for the purposes intended.

The personnel of this camp consisted of two medical officers, Dr. Roger
P. Ames, Acting Assistant Surgeon U.S.A., an immune, in immediate
charge; Dr. R. P. Cooke, Acting Assistant Surgeon U.S.A., nonimmune; one
acting hospital steward, an immune; nine privates of the hospital corps,
one of whom was immune, and one immune ambulance driver.

For the quartering of this detachment, and of such nonimmune individuals
as should be received for experimentation, hospital tents, properly
floored, were provided. These were placed at a distance of about twenty
feet from each other, and numbered 1 to 7 respectively.

Camp Lazear was established November 20, 1900, and from this date was
strictly quarantined, no one being permitted to leave or enter camp
except the three immune members of the detachment and the members of the
board. Supplies were drawn chiefly from Columbia Barracks, and for this
purpose a conveyance under the control of an immune acting hospital
steward, and having an immune driver, was used.

A few Spanish immigrants recently arrived at the port of Havana were
received at Camp Lazear, from time to time, while these observations
were being carried out. A nonimmune person, having once left the camp,
was not permitted to return to it under any circumstances whatsoever.

The temperature and pulse of all nonimmune residents were carefully
recorded three times a day. Under these circumstances any infected
individual entering the camp could be promptly detected and removed. As
a matter of fact, only two persons, not the subject of experimentation,
developed any rise of temperature; one, a Spanish immigrant, with
probable commencing pulmonary tuberculosis, who was discharged at the
end of three days: and the other, a Spanish immigrant, who developed a
temperature of 102.6 deg. F. on the afternoon of his fourth day in camp. He
was at once removed with his entire bedding and baggage and placed in
the receiving ward at Columbia Barracks. His fever, which was marked by
daily intermissions for three days, subsided upon the administration of
cathartics and enemata. His attack was considered to be due to
intestinal irritation. He was not permitted, however, to return to the

No nonimmune resident was subjected to inoculation who had not passed in
this camp the full period of incubation of yellow fever, with one
exception, to be hereinafter mentioned.

For the purpose of experimentation subjects were selected as follows:
From Tent No. 2, 2 nonimmunes, and from Tent No. 5, 3 nonimmunes. Later,
1 nonimmune in Tent No. 6 was also designated for inoculation.

It should be borne in mind that at the time when these inoculations were
begun, there were only 12 nonimmune residents at Camp Lazear, and that 5
of those were selected for experiment, viz., 2 in Tent No. 2, and 3 in
Tent No. 5. Of these we succeeded in infecting 4, viz., 1 in Tent No. 2.
and 3 in Tent No. 5, each of whom developed an attack of yellow fever
within the period of incubation of this disease. The one negative
result, therefore, was in Case 2--Moran--inoculated with a mosquito on
the fifteenth day after the insect had bitten a case of yellow-fever on
the third day. Since this mosquito failed to infect Case 4, three days
after it had bitten Moran, it follows that the result could not have
been otherwise than negative in the latter case. We now know, as the
result of our observations, that in the case of an insect kept at room
temperature during the cool weather of November, fifteen or even
eighteen days would, in all probability, be too short a time to render
it capable of producing the disease.

As bearing upon the source of infection, we invite attention to the
period of time during which the subjects had been kept under rigid
quarantine, prior to successful inoculation, which was as follows: Case
1, fifteen days; Case 3, nine days; Case 4, nineteen days; Case 5,
twenty-one days. We further desire to emphasize the fact that this
epidemic of yellow fever, which affected 33.33 per cent of the nonimmune
residents of Camp Lazear, did not concern the seven nonimmunes occupying
Tents Nos, 1, 4, 6 and 7, _but was strictly limited to those individuals
who had been bitten by contaminated mosquitoes._

Nothing could point more forcibly to the source of this infection than
the order of the occurrence of events at this camp. The precision with
which the infection of the individual followed the bite of the mosquito
left nothing to be desired in order to fulfill the requirements of a
scientific experiment.

In summing up their results at the conclusion of this report the
following statement is made:

Out of a total or eighteen nonimmunes whom we have inoculated with
contaminated mosquitoes, since we began this line of investigation,
eight, or 44.4 per cent, have contracted yellow fever. If we exclude
those individuals bitten by mosquitoes that had been kept less than
twelve days after contamination, and which were therefore probably
incapable of conveying the disease, we have to record eight positive and
two negative results--80 per cent.

In a still later report (May, 1901) Dr. Reed says, "We have thus far
succeeded in conveying yellow fever to twelve individuals by means of
the bites of contaminated mosquitoes."

The nonimmune individuals experimented upon were all fully informed as
to the nature of the experiment and its probable results and all gave
their full consent. Fortunately no one of these brave volunteers in the
cause of science and humanity suffered a fatal attack of the disease,
although several were very ill and gave great anxiety to the members of
the board, who fully appreciated the grave responsibility which rested
upon them. That these experiments were justifiable under the
circumstances mentioned is, I believe, beyond question. In no other way
could the fact established have been demonstrated, and the knowledge
gained is of inestimable value as a guide to reliable measures of
prevention. Already it is being applied in Cuba, and without doubt
innumerable lives will be saved as a result of these experiments showing
the precise method by which yellow fever is contracted by those exposed
in an "infected locality." Some of these volunteers were enlisted men of
the United States Army and some were Spanish immigrants who had recently
arrived in Cuba. When taken sick they received the best possible care,
and after their recovery they had the advantage of being "immunes" who
had nothing further to fear from the disease which has caused the death
of thousands and tens of thousands of Spanish soldiers and immigrants
who have come to Cuba under the orders of their government or to seek
their fortunes.

The experiments already referred to show in the most conclusive manner
that the blood of yellow fever patients contains the infectious agent,
or germ, to which the disease is due, and this has been further
demonstrated by direct inoculations from man to man. This experiment was
made by Dr. Reed at "Camp Lazear" upon four individuals, who freely
consented to it; and in three of the four a typical attack of yellow
fever resulted from the blood injection. The blood was taken from a vein
at the bend of the elbow on the first or second day of sickness and was
injected subcutaneously into the four nonimmune individuals, the amount
being in one positive case 2 cc, in one 1.5 cc, and in one O.5 cc. In
the case attended with a negative result, a Spanish immigrant, a
mosquito inoculation also proved to be without effect, and Dr. Reed
supposes that this individual "probably possesses a natural immunity to
yellow fever." Dr. Reed says with reference to these experiments:

It is important to note that in the three cases in which the injection
of the blood brought about an attack of yellow fever, careful culture
from the same blood, taken immediately after injection, failed to show
the presence of Sanarelli's bacillus.

Having demonstrated the fact that yellow fever is propagated by
mosquitoes, Dr. Reed and his associates have endeavored to ascertain
whether it may also be propagated, as has been commonly supposed, by
clothing, bedding, and other articles which have been in use by those
sick with this disease. With reference to the experiments made for the
solution of this question I cannot do better than to quote _in extensa_
from Dr. Reed's paper read at the Pan-American Medical Congress in

[This extract from Dr. Reed's paper describes in careful scientific
detail the experiments which finally established the fact that the
contagion came through mosquitoes, and in no other way. Into a small
house, thoroughly air-proof, were brought bedclothes, clothing, and
other articles which had been contaminated by yellow fever patients.
Then for twenty days men who were nonimmune to the fever slept in this
building, with no evil effects. This experiment was repeated several
times. Then in another building similar, except that it was ventilated
by mosquito-proof windows, and had been thoroughly disinfected, another
volunteer was bitten by mosquitoes which had first bitten patients
suffering with yellow fever; and he developed the disease. The last
paragraph of the extract is as follows:]

"Thus at Camp Lazear, of seven nonimmunes whom we attempted to
infect by means of the bites of contaminated mosquitoes, we have
succeeded in conveying the disease to six, or 85.71 per cent. On the
other hand, of seven nonimmunes whom we tried to infect by means of
fomites [cloth and other material generally capable of carrying
germs] under particularly favorable circumstances, we did not
succeed in a single instance."

It is evident that in view of our present knowledge relating to the mode
of transmission of yellow fever, the preventive measures which have
heretofore been considered most important, that is, isolation of the
sick, disinfection of clothing and bedding, and municipal sanitation,
are either of no avail or of comparatively little value. It is true that
yellow fever epidemics have resulted, as a rule, from the introduction
to a previously healthy locality of one or more persons suffering from
the disease. But we now know that its extension did not depend upon the
direct contact of the sick with the nonimmune individuals and that
isolation of the sick from such contact is unnecessary and without
avail. On the other hand, complete isolation from the agent which is
responsible for the propagation of the disease is all-important. In the
absence of a yellow fever patient from which to draw blood the mosquito
is harmless, and in the absence of the mosquito the yellow fever patient
is harmless--as the experimental evidence now stands. Yellow fever
epidemics are terminated by cold weather because the mosquitoes die or
become torpid. The sanitary condition of our southern seaport cities is
no better in winter than in summer, and if the infection attached to
clothing and bedding it is difficult to understand why the first frosts
of autumn should arrest the progress of an epidemic. But all this is
explained now that the mode of transmission has been demonstrated.

Insanitary local conditions may, however, have a certain influence in
the propagation of the disease, for it has been ascertained that the
species of mosquito which serves as an intermediate host for the yellow
fever germ may breed in cesspools and sewers, as well as in stagnant
pools of water. If, therefore, the streets of a city are unpaved and
ungraded and there are open spaces where water may accumulate in pools,
as well as open cesspools to serve as breeding places for _Culex
fasciatus_, the city will present conditions more favorable for the
propagation of yellow fever than it would if well paved and drained and

The question whether yellow fever may be transmitted by any other
species of mosquito than _Culex fasciatus_ has not been determined.
Facts relating to the propagation of the disease indicate that the
mosquito which serves as an intermediate host for the yellow fever germ
has a somewhat restricted geographical range and is to be found
especially upon the seacoast and the margins of rivers in the so-called
"yellow fever zone." While occasional epidemics have occurred upon the
southwest coast of the Iberian Peninsula, the disease, as an epidemic,
is unknown elsewhere in Europe, and there is no evidence that it has
ever invaded the great and populous continent of Asia. In Africa it is
limited to the west coast. In North America, although it has
occasionally prevailed as an epidemic in every one of our seaport cities
as far north as Boston, and in the Mississippi Valley as far north as
St. Louis, it has never established itself as an epidemic disease within
the limits of the United States. Vera Cruz, and probably other points on
the Gulf coast of Mexico, are, however, at the present time, endemic
foci of the disease. In South America it has prevailed as an epidemic at
all of the seaports on the Gulf and Atlantic coasts, as far south as
Montevideo and Buenos Aires, and on the Pacific along the coast of Peru.

The region in which the disease has had the greatest and most frequent
prevalence is bounded by the shores of the Gulf of Mexico, and includes
the West India islands. Within the past few years yellow fever has been
carried to the west coast of North America, and has prevailed as an
epidemic as far north as the Mexican port of Guaymas, on the Gulf of

It must be supposed that _Culex fasciatus_ is only found where yellow
fever prevails. The propagation of the disease depends upon the
introduction of an infected individual to a locality where this mosquito
is found, at a season of the year when it is active. Owing to the short
period of incubation (five days or less), the brief duration of the
disease and especially of the period during which the infectious agent
(germ) is found in the blood, it is evident that ships sailing from
infected ports, upon which cases of yellow fever develop, are not likely
to introduce the disease to distant seaports. The continuance of an
epidemic on shipboard, as on the land, must depend upon the presence of
infected mosquitoes and of nonimmune individuals. Under these conditions
we can readily understand why the disease should not be carried from the
West Indies or from South America to the Mediterranean, to the east
coast of Africa, or to Asiatic seaport cities. On the other hand, if the
disease could be transmitted by infected clothing, bedding, etc., there
seems no good reason why it should not have been carried to these
distant localities long ago.

The restriction as regards altitude, however, probably depends upon the
fact that the mosquito which serves as an intermediate host is a coast
species, which does not live in elevated regions. It is a
well-established fact that yellow fever has never prevailed in the City
of Mexico, although the city has constant and unrestricted intercourse
with the infected seaport, Vera Cruz. Persons who have been exposed in
Vera Cruz during the epidemic season frequently fall sick after their
arrival in the City of Mexico, but they do not communicate the disease
to those in attendance upon them or to others in the vicinity. Evidently
some factor essential for the propagation of the disease is absent,
although we have the sick man, his clothing and bedding, and the
insanitary local conditions which have been supposed to constitute an
essential factor. I am not aware that any observations have been made
with reference to the presence or absence of _Culex fasciatus_ in high
altitudes, but the inference that it is not to be found in such
localities as the City of Mexico seems justified by the established
facts already referred to.

As pointed out by Hirsch, "the disease stops short at many points in the
West Indies where the climate is still in the highest degree tropical."
In the Antilles it has rarely appeared at a height of more than seven
hundred feet. In the United States the most elevated locality in which
the disease has prevailed as an epidemic is Chattanooga, Tennessee,
which is seven hundred and forty-five feet above sea level.

It will be remembered that the malarial fevers are contracted as a
result of inoculation by mosquitoes of the genus _Anopheles_, and that
the malarial parasite has been demonstrated not only in the blood of
those suffering from malarial infection, but also in the stomach and
salivary glands of the mosquito. If the yellow fever parasite resembled
that of the malarial fevers, it would no doubt have been discovered long
ago. But, as a matter of fact, this parasite, which we now know is
present in the blood of those sick with the disease, has thus far eluded
all researches. Possibly it is ultramicroscopic. However this may be, it
is not the only infectious disease germ which remains to be discovered.
There is no doubt a living germ in vaccine lymph and in the virus from
smallpox pustules, but it has not been demonstrated by the microscope.
The same is true of foot and mouth disease and of infectious
pleuropneumonia of cattle, although we know that a living element of
some kind is present in the infectious material by which these diseases
are propagated. In Texas fever, of cattle, which is transmitted by
infected ticks, the parasite is very minute, but by proper staining
methods and a good microscope it may be detected in the interior of the
red blood corpuscles. Drs. Reed and Carroll are at present engaged in a
search for the yellow fever germ in the blood and in the bodies of
infected mosquitoes. What success may attend their efforts remains to be
seen, but at all events the fundamental facts have been demonstrated
that this germ is present in the blood and that the disease is
transmitted by a certain species of mosquito--_Culex fasciatus_.

[At the end of the article General Sternberg reproduces the general
orders issued to the army in Cuba with directions for the precautions to
be taken against the disease.]


This is a good example of the high quality of argumentative writing
which is being turned out by daily and weekly journals in great
quantities throughout the year. This article, being from a weekly
journal, is longer and more searching than the editorial in a daily
paper, and to some extent partakes of the nature of an essay. It is
notable for the thoroughness of the analysis of the question, for the
careful review of the history of the case, and for the precise statement
of the points at issue. There is little space for the presentation of
evidence, though the specific statement of facts and the quotations from
authorities, so far as they go, serve as evidence.

We purpose in this article to give to our readers an interpretation of
the recent decision of the New York Court of Appeals declaring that the
Workman's Compensation Act is unconstitutional. We regard this decision
as of very great importance, because, if the Court has correctly
interpreted the Constitution of the United States, that document
prevents America from adopting an industrial reform which has been
adopted as just and necessary by practically the entire civilized world.
We do not believe that the interpretation of the Court is correct. It
is, in our opinion, in conflict alike with the progress of civilization,
the spirit of democracy, the principles of social justice, and the
analogies and tendencies of law. And we believe that this unconscious
attempt to fasten upon the workingman an unjust and intolerable burden
from which all other civilized nations, with one exception, have
relieved him, will ultimately prove as futile as was the conscious and
deliberate attempt of the United States Supreme Court, under the lead of
Chief Justice Taney, to halt the movement for the emancipation of the

In the earlier stages of industrial development, when industry was
unorganized, machinery hardly existed, and labor was an individual
handicraft, the courts naturally assumed that accidents occurring to a
workman were probably due to his own negligence.

If he were mowing in a field and cut himself with his scythe, if he
were digging a ditch and sprained his ankle, if he were cutting down a
tree and it fell upon him and broke his leg, he could recover from his
employer only on proof that his employer was at fault. Nor could he
recover if the accident were due to the carelessness of a fellow
workman. There was always a natural presumption that he could better
guard against such carelessness than could the probably absent employer.
If he were turning a grindstone and his awkward fellow workman so held
the scythe as to cut him, if he were in the forest and his fellow
workman gave no notice of the falling tree, it was natural to presume
that the carelessness was shared between the two, and the law would
neither attribute blame to the employer nor levy the damage upon him
when he was not blameworthy.

But the organization of labor and the creation of elaborate machinery
has destroyed this presumption of the common sense, and therefore in all
civilized countries has destroyed this presumption of law. When a
railway train runs off the track because of a misplaced switch or a
defective rail, there is no presumption that the engineer was careless
or could have guarded against the carelessness of the switch tender or
of the manufacturer of the rail. When a fire breaks out in a room where
scores of shirt-waist makers are confined at their work and a hundred
and forty of them are burned to death, there is no presumption that the
impossibility of their escape through narrow passageways and a locked
door was due to their carelessness, or that they were to blame because
the tables at which they were working were wood, not metal, or that they
could have prevented the careless fellow workman from throwing his
cigarette down in the inflammable material which surrounded them. In
fact, only a very limited number of modern accidents are due to the
carelessness of the injured party; probably a somewhat larger number are
due to the carelessness of some other employee; while a very
considerable proportion are incidents of the trade and due to no
definite culpability which it is possible to trace home either to the
employer or the employed.

The Christian nations of the world have, with singular unanimity,
recognized this change, and have changed their laws to meet the new
conditions. The change which they have made was indicated to them by
their maritime laws, which in this respect have been alike in all
civilized nations and from a very early period. An accident occurring to
a sailor on shipboard has always been regarded as an accident to the
ship; and the ship has always been required to bear the burden of his
care and keep and cure. This right to be cared for does not rest on any
assumption that the master of the ship has been negligent, nor is the
seaman deprived of his right to care and keep and cure by proof that the
accident was due in part, or even altogether, to his negligence. He is
not debarred from recovery by proof of his carelessness; he is not given
larger damages upon proof of the negligence of the master. His right to
be cared for rests, says Mr. Justice Story, upon the fact that "seamen
are in some sort co-adventurers upon the voyage." Modern jurisprudence
throughout Christendom recognizes that under modern industrial
conditions the workman in the railway, the mine, and the factory is a
co-adventurer in the enterprise, and that the hazards incident to his
employment should be borne, not by the individual, but by the industry.
This principle is now recognized and incorporated in their legal,
systems by every country in Europe (including Russia but not Turkey)
with the single exception of Switzerland.[76]

The justice and importance of this reform have been recognized by such
statesmen as the President of the United States and his predecessor in
office, by such lawyers as Elihu Root, by workmen who desire some better
insurance against accident than is furnished them by a right to sue
their employers, by employers who desire to be protected from vexatious
lawsuits and the peril of verdicts for great sums, and by about half a
dozen states, including Kansas, New Jersey, Massachusetts, and New York,
all of which have passed Workmen's Compensation Acts. Such an act,
shifting the responsibility for the risks which are incident to the
trade in organized industry from the individual to the organization, the
New York Court of Appeals declares no state in the Union has authority
to enact, because the Constitution of the United States forbids its
enactment. The Court recognizes the need for a change in the Law. "We
desire," says the Court, "to present no purely technical or
hypercritical obstacles to any plan for the beneficent reformation of a
branch of our jurisprudence in which, it may be conceded, reform is a
consummation devoutly to be wished." It presents forcibly,
appreciatively, and apparently with entire approbation, the arguments
which have brought about this reform in other lands: "There can be no
doubt as to the theory of this law. It is based upon the proposition
that the inherent risks of an employment should, in justice, be placed
upon the shoulders of the employer, who can protect himself against loss
by insurance, and by such an addition to the price of his wares as to
cast the burden ultimately upon the consumer; that indemnity to an
injured employee should be as much a charge upon the business as the
cost of replacing or repairing disabled or defective machinery,
appliances, or tools; that under our present system the loss falls
immediately upon the employee, who is almost invariably unable to bear
it, and ultimately upon the community, which is taxed for the support of
the indigent; and that our present system is uncertain, unscientific,
and wasteful, and fosters a spirit of antagonism between employer and
employee which it is for the interest of the state to remedy."

To these considerations the Court suggests no reply, and upon them it
offers no criticism. On the contrary, it in terms concedes "the strength
of this appeal to recognized and widely prevalent sentiment." It
declares that "no word of praise could overstate the industry and
Intelligence of the Commission" which prepared the New York law, and it
apparently agrees with the conclusion of the Commission, based on "a
most voluminous array of statistical tables, extracts from the works of
philosophical writers, and the industrial laws of many countries"--the
conclusion that "our own system of dealing with industrial accidents is
economically, morally, and legally unsound." But all these
considerations of public policy, social justice, and world-wide
conviction are set aside "as subordinate to the primary question whether
they can be molded into statutes without infringing upon the letter or
spirit of our own written Constitution." The countries which have
adopted this desirable reform, it is said, "are so-called constitutional
monarchies in which, as in England, there is no written constitution,
and the Parliament or lawmaking body is supreme. In our country the
Federal and State Constitutions are the charters which demark the extent
and the limitation of legislative power."

In brief: The change in the law is just: it is demanded by the change
which has taken place in our industrial system; it is all but
universally desired; the experience and the conscience of the civilized
world call for it; but America is powerless to make it under her present
Constitution. Other countries can make it because they are monarchies:
America cannot make it because she is free.

The clause in the Constitution which, in the opinion of the Court of
Appeals, prohibits the legislature from making this wise and just reform
in our law is the clause which provides that "no person shall be ...
deprived of life, liberty, or property without due process of law"--a
prohibition which occurs twice in our Federal Constitution (Amendments V
and XIV), and is to be found in many, very probably in most, State
Constitutions. We believe that the Court of Appeals, in its contention
that this clause in our Constitution prohibits this just and necessary
reform in our industrial laws, is sustained neither by the spirit nor by
the letter of this clause in the Constitution, neither by the history of
its origin and significance nor by the course of judicial interpretation
which has been given to it by the United Slates Supreme Court.

Let the reader stop a moment here and reflect upon the principle
involved in the law enacted in other civilized countries and proposed in
ours. It is not that an employer should be mulcted in damages when he
has been guilty of no fault. It is not that he should be compelled to
pay for his carelessness without an opportunity to prove to the court
that he has not been careless. It is that accidents occurring in the
course of organized industry should be held to have occurred, not to the
individual, but to the industry.

"In everything within the sphere of human activity," says the Court of
Appeals, "the risks which are inherent and unavoidable must fall upon
those who are exposed to them." The jurists of all the civilized
countries of Europe agree that in modern organized industries it is the
industry, not the individual, that is exposed to the accidents. The law
applies to the factory hand for the future the principle heretofore
applied to the seaman in maritime law. The factory hand is henceforth to
be regarded as a "co-adventurer" with the employer in the industry.

Nor is "due process of law" denied by the Workman's Compensation Act. No
damages can be recovered from the employer against his consent without a
suit at law. The statute in terms provides that "any question which
shall arise under this act shall be determined either by agreement or by
arbitration as provided in the Code of Civil Procedure, or by an action
at law as herein provided." And what is provided is that, if the
employer fail to make compensation as provided by the Act, the injured
party or his guardian or executor may sue for the amount. The law does
not deny the employer his day in court. But it redefines the question
for the court to decide. It has not to decide whether the employer is
guilty of fault. His liability does not depend on his fault. The court
has simply to decide whether the accident occurred in the due course of
the business, and, if the employer chooses to raise the question,
whether it was "caused in whole or in part by the serious and willful
misconduct of the workman." If not, the workman is entitled to recover,
and the amount which he is entitled to recover is fixed by the statute.
The question, then, is this:

Does a law which, for accidents in certain carefully defined and
especially dangerous employments, transfers the liability from the
individual to the organization, and which carefully preserves the right
of the employer to submit any questions which arise under the law to the
courts for adjudication, deprive the employer of his property without
due process of law? The Court of Appeals of New York State affirms that
it does. _The Outlook_ affirms that it does not.

To state this question appears to us to answer it. Certainly there is
nothing in the Workman's Compensation Act which violates the _letter_ of
the Constitution. It does not in terms take the property of the employer
without due process of law. How any one can find in the act a violation
of the _spirit_ of the Constitution we find it difficult to conceive.
And that difficulty is enhanced, not relieved, by a careful study of the
opinions of the Court. For in those opinions it is assumed that on its
face the law is unconstitutional, and the Court devotes all its
intellectual energies to an attempt to show that the authorities cited
in opposition are exceptional. That the law and the Constitution are not
inconsistent is, however, established both by a consideration of the
object and intent of the Constitutional provision and by judicial
decisions interpreting it. To these two considerations we now direct the
attention of the reader.

The provision in the federal Constitution that "no person shall be ...
deprived of life, liberty, or property, except by due process of law"
(Fifth Amendment), and the provision, "nor shall any state deprive any
person of life, liberty, or property without due process of law"
(Fourteenth Amendment), are derived from the Great Charter wrested from
King John by the Barons in 1215. "No freeman shall be taken or
imprisoned, or disseized, or outlawed, or banished, or any ways
destroyed, nor will we pass upon him, nor will we send upon him, unless
by the lawful judgment of his peers, or by the law of the land." This is
perhaps the most important of those general clauses in the Great Charter
which, says Hallam in his "History of the Middle Ages," "protect the
personal liberty and property of all freemen by giving security from
arbitrary imprisonment and arbitrary spoliation." Hume gives some
intimation of the abuses that led to this provision: merchants had been
subjected to arbitrary tolls and impositions; the property of the dying
had been seized and their lawful heirs dispossessed; officers of the
Crown had levied on horses and carts in time of peace for their own or
the public service. Green, in his "History of the English People," gives
the picture of John's despotism and of the growing spirit of liberty in
the English common people with greater detail The King's exactions drove
the Barons into alliance with the people. "Illegal exactions, the
seizure of their castles, the preference shown to foreigners, were small
provocations compared with his attacks on the honor of their wives and
daughters." The demand of the common people to substitute due process of
law for wager by battle, and to be secure in their lives, their
liberties, and their property from acts of lawless and irresponsible
power, the Barons made their own, and by the same act claimed for others
what they claimed for themselves. "The under tenants were protected
against all exactions of their lords in precisely the same terms as they
were protected against the lawless exactions of the Crown."

From such a provision for the protection of the fundamental rights of
person and property it is a far cry to the conclusion that the people
cannot remedy the injustice which inflicts all the consequences of
accidents which occur in extrahazardous trades upon the individual who,
in practicing that trade, happens to be subjected to the peril. Common
sense, as well as frequent decisions of the courts, sustain Daniel
Webster's definition of the scope of the Constitutional provision
embodying in our law this provision of the Great Charter: "The meaning
is that every citizen shall hold his life, liberty, and property and
immunities under the protection of general rules which govern society."
That society can never make new rules for the better protection of life,
liberty, and property and immunities, is a doctrine as repugnant to
reason as it is to social progress. It is equally repugnant to the
principle of interpretation laid down by the Supreme Court of the United
States: "The law is perfectly well settled that the first ten amendments
to the Constitution, commonly known as the Bill of Rights, were not
intended to lay down any novel principles of government, but simply to
embody certain guarantees and immunities which we had inherited from our
English ancestors."[77] And it seems never even to have occurred to
English law makers that the Workman's Compensation Act is inconsistent
with this provision of their Great Charter--a charter which is as much a
part of the British constitution as the Fifth and Tenth Amendments are
of ours. In the English Constitution, as in the American, the principle
is carefully defined in writing. The only difference is that in England
the Parliament is the final judge of its meaning; in the United States
that final judge is the Supreme Court of the United States.

At least it ought to be. But the New York Court of Appeals does not
allow that it is the final authority. In this particular case it is not,
for no appeal lies by the plaintiff in this case from the state to the
national court. But an appeal does lie by the public. _The Outlook_ takes
such an appeal. And it declares without hesitation that the decision of
the New York Court of Appeals is in conflict, not only with the trend of
judicial decisions in that Court, but also with its very explicit
statement of the fundamental principles to be applied in interpreting
the Constitution.

We have already noted the fact that maritime law regards a seaman as a
co-adventurer with the shipowner, and therefore makes the ship liable
for his care, keep, and cure in case any accident occurs to him, even
though it be produced by his own fault. We now add that the Supreme
Court of the United States has decided that such a law does not take the
shipowner's property without due process of law. That, says the Court of
Appeals, is different, for "the contract and services of seamen are
exceptional in character ... When he is sick or injured he is entitled
to be cared for at the expense of the ship, and for the failure of the
master to perform his duty in this regard the ship or the owner is
liable." No doubt there is a difference between a seaman on a ship and a
factory hand in a factory. Very probably that difference ought to weigh
with the representatives of the people in determining what difference
there should be in their respective treatment. But if making a ship
liable for accidents happening to a seaman does not take the shipowner's
property without due process of law, then rendering a factory liable for
accidents happening to a factory hand does not lake the factory owner's
property without due process of law. The Constitution of the United
States is precisely the same on sea as on land; but to the Constitution
of the United Slates the Court of Appeals gives one meaning on shipboard
and another meaning in the town.

The right of the legislature to impose new responsibilities upon
property is not confined by the United States Supreme Court to the sea.
It is equally sustained upon the land. The State of Oklahoma provided
for an assessment on all banks in the State in order to create a fund
for the purpose of guaranteeing the depositors in all banks in the
State. The Noble State Bank brought suit against the State to prevent it
from collecting this assessment, on the ground that it was taking
property without due process of law. The Supreme Court, without a
dissenting opinion, held that the act was constitutional, on two
grounds: first, because "it is established by a series of cases that an
ulterior public advantage may justify a comparatively insignificant
taking of private property for what in its immediate purpose is a
private use"; and, second, because "it may be said in a general way
that the police power extends to all the great public needs. It may be
put forth in aid of what is sanctioned by usage or held by the
prevailing morality or strong and preponderant opinion to be greatly and
immediately necessary to the public welfare." A similar case coming
before the Court from the State of Kansas was decided with the same
unanimity by the Court at the same time.[78]

This definition of Constitutional law by the unanimous opinion of the
Supreme Court of the United Slates, if accepted, clearly determines the
constitutionality of the Workman's Compensation Act. That this Act "is
sanctioned by usage and held by the prevailing morality and strong and
preponderant opinion to be greatly and immediately necessary to the
public welfare" is proved by the fact that it is demanded alike by
employer and employee, that it has been approved by the general public,
that it is apparently regarded by the Court of Appeals itself as a
reform much to be desired, and that it has been adopted by every
civilized country in Europe except Switzerland. The New York Court of
Appeals can find only one escape from this declaration of principle by
the highest tribunal in the land, in these two cases, namely, a
repudiation of the authority of that tribunal in these cases: "We cannot
recognize them as controlling our construction of our Constitution."

In this review of the decision of the New York Court of Appeals we have
passed by without comment some extraordinary statements which should not
be passed by in any complete review--the statement that "practically all
of these [European] countries are so-called constitutional monarchies in
which, as in England, there is no written constitution," whereas, in
fact, practically all of the European nations have written
constitutions; and the statement that the Workman's Compensation Act
"does nothing to conserve the health, safety, or morals of the
employee," whereas, in fact, it is aimed and purposed to accomplish all
three results, and was urged in the English House of Lords by Lord
Salisbury specifically on the ground that "to my mind the great
attraction of this bill is that I believe it will turn out a great
machinery for the saving of human life."

But we have deliberately neglected all minor details in an endeavor to
put before our lay readers a true interpretation, and what we hope they
will generally believe to be a just criticism, of this decision of the
highest court of the Empire State. In that decision, in our opinion, the
Court has disregarded all considerations of social justice and public
policy, has set itself against the conscience and judgment of the
civilized world, and in its forced interpretation of the Constitution
has disregarded alike the history of the Constitution's origin and of
its judicial interpretation by the highest court in the land.



What is the purpose of a course in the writing of arguments? The
arguments which it turns out cannot convince any one, since there is no
one for them to convince; so that the immediate and tangible product of
the course must be looked on as a by-product, and a by-product from
which there can be no salvage.

What products, then, can teachers aim to produce? First, a vital respect
for facts and for sound reasoning therefrom; second, the power so to
analyze and marshal the facts in an obscure and complicated case as to
bring order and light out of confusion; and third, the appreciation of
other men's point of view and training in the tact which will influence
them. Incidentally a good course in argumentation should leave with its
students an acquaintance with certain effective and economical devices
for going to work that should serve them well in later life.

I will take up each of these points in order, and speak of a few methods
which I have found useful in practice.

In the first place, how can a teacher establish and strengthen the
veneration for fact and the suspicion of all unsupported assertion and
_a priori_ reasoning? Partly by judicious exercises, partly by quiet
guidance in the choice of subjects. Let a class cross-examine each other
on their exact knowledge of the ultimate facts on some familiar subject.
On the question of the value of Latin, for example, just how many of the
class know no Latin? In a piece of their own writing, how many of the
words are derived from the Latin? and what kind of words are they? Of
the leaders in scholarship in the class how many know Latin? Of the best
writers? Of the authors whose works they are studying in English
literature, how many were trained in Latin? Of the authors of the
textbooks in science how many? A few such questions as these will
suggest others; and the members of the class should keep a record of how
many such questions they can answer with precision. Very few people have
any exact command of facts on subjects about which they talk freely and
with authority; and a young man who has had this truth borne in on him
by personal examination will come to writing an argument with more
modesty and scrupulousness.

Then a class can be guided away from the large subjects where of
necessity their knowledge of facts is second-hand, and in which their
arguments, being of necessity short, can touch only the surface of the
subject. Here, I think, is where much of the ineffectiveness of courses
in argument is to be found. "Judges should be elected by direct vote of
the people," "The right of suffrage should be limited by an educational
test," "Corporations engaged in interstate commerce should be required
to take out a federal license," are samples of propositions recommended
as subjects for arguments of two thousand words or less. No
undergraduate has the practical knowledge of affairs to judge the value
of facts adduced in support of such propositions, and except for the
members of debating teams, who spend time on their contests comparable
to that given by athletes to their sports, no undergraduate can make
himself acquainted with the vast fields of economics and governmental
theory covered by such subjects. To write an argument of twelve hundred
words on such a subject will weaken rather than strengthen the respect
for facts.

What sort of subjects, then, can be used? This is, I confess, a question
not altogether easy to answer; but I have had a try at an answer in the
list of Subjects which is given in Chapter I, which can be adapted to
special conditions of time or place. In general a question which a
student would discuss of his own accord and with some warmth is the best
subject for him. There are many such subjects in athletics: at this date
the rules of football seem not yet settled beyond amendment, and the
material for hunting facts in the records of past games is large; Dean
Briggs of Harvard is making an appeal to players to raise the level of
manners and of ethics in baseball; do all your students agree with him?
Should the universities be allowed to use men in their graduate schools
as members of their teams? And what are the facts about the playing of
such men in the universities in which your students would be interested?

Then there are various educational questions, on which the views of
students have real value, especially if they are based on some
examination of facts in the course of writing an argument. President
Lowell of Harvard told a body of students whom he was consulting that it
did not make much difference what they wanted, but that their views when
set forth for the purpose of helping the authorities of the college were
of great value. The views of your class on examinations for entrance
would be based on knowledge which a member of the faculty cannot have at
first-hand. What is the estimate of the relative difficulty of getting
into various colleges, and on what figures from schools is the estimate
based? For how many boys are languages easier or harder than history or
mathematics or science? Does admission by certificate provide sufficient
safeguard for the standards of the college? Does a rigid prescription of
subjects for examination distort the course for the high school? How
many boys, who can be named, had their education injured by such
prescription? Should the standard for entrance or for graduation be
raised, or lowered, at your college? Should honor students be excused
from final examinations? Should they have special privileges? Should
freshmen be required to be within college bounds at a fixed hour every
night? Should class rushes be abolished? Here are only a few suggestions
of subjects which can be adapted to the needs and the knowledge of
special classes. They are of no value, however, unless the students are
driven to gather facts, and to reason from these facts, not from general
impressions. School catalogues, college catalogues, informal censuses,
reports of presidents and of committees, and other printed or oral
sources will help in the gathering of facts.

Then there are the innumerable local and state questions that touch the
fathers of at least half of any class, and that the sons may be in the
way of hearing discussed at home, or may be sent to hear discussed in
legislatures and city councils. Every instructor who takes a daily
newspaper will be provided with more of these subjects than his class
can use. For their facts the students can go to the newspapers, to
printed reports, to the persons who are concerned with the questions
which they are going to argue. In some cases the students will get
valuable interest and advice from the older men who have the active
charge of the questions under discussion; and it is not inconceivable,
that if some of the latter happen to be graduates of the college or
school, they will even read the arguments and make helpful criticisms on
them. The grateful interest of graduates is a source which has not been
overdrawn for aid in the processes of instruction.

Many of the subjects which I have here offered as suggestions can be
discussed in part, at any rate, within the space of an editorial
article; and that I conceive to be about the length which most arguments
written by students, except those in special courses, will run to. In so
short a space, it is hardly necessary to point out, evidence cannot be
presented and discussed with the detail, say, of Webster's "Speech in
the White Murder Case." It would be a good separate exercise to call for
such detailed presentation of evidence on some single point in the
argument. With most classes, however, the instructor cannot do much more
than rule out wholly unsupported assertion, and insist that the
distinction between fact and inference from fact shall be kept in sight.

The second of the results which an instructor in a course in
argumentation should aim for is the power to analyze complicated masses
of facts and so arrange them and present them as to bring order out of
confusion. President Taft has said that Justice Hughes "won his
reputation at the bar by his gift of boring to the innermost core of a
subject"; and that is what the drill on the introduction to the brief
should to some degree impart to students. The orderly analysis of the
question, step by step, according to the admirable scheme devised by
Professor Baker, cannot help implanting some understanding of what it
means to go to the heart of a question. Every man sooner or later, must
face complicated and puzzling questions; and the ordinary man will give
himself a long start if he will thus put down on paper the points that
can be urged on the two sides of a question, and then study them until
the real points at issue emerge. Then the drill in laying out the
logical skeleton of an argument, so plainly that no false or broken
connection can escape detection, will strengthen the conscience for
clearness and coherence of thought; and the necessity for getting back
to ultimate facts for every assertion, and putting down the source from
which the facts are derived, will help to implant a wholesome respect
for facts as something different from assertion.

Since the argument written out is the final test of the thinking, some
care must be taken that students do not obscure by careless paragraphing
and slovenly sentences such clearness of thought as they have attained
in their brief. I have found it useful to prescribe marginal titles to
the paragraphs: a student who has struggled to find a single phrase that
will cover all of a sprawling paragraph will have learned some respect
for firmness of paragraphing. In general, an instructor has a right to
insist that his class shall apply in practice all that they have learned
about the ordinary devices for getting clearness and emphasis.

In the third place, this practice in writing arguments ought to leave
with students a more developed idea of how to make readers look
favorably on a proposition which they are urging. I have insisted, at
the risk of seeming repetitious, on the need of considering the audience
whose minds are to be won over; for what persuasiveness can mean apart
from specific persons to persuade I cannot conceive. Much of the
perfunctory emptiness of the textbooks when they get to this part of the
subject comes from neglecting this very practical and obvious side of
making an argument. The difficulty it raises for arguments written in
class work is just as obvious; more than most kinds of composition
written for practice, arguments run the risk of having no touch with
reality. Something may be done, however, if an instructor guides his
class toward the kind of questions I have suggested above: an argument
on the rules of football would be addressed to the Rules Committee, and
most youths would know something of the prepossessions of so famous a
man as Mr. Camp; an argument on a college question would be addressed
to the faculty or the president, and it may be assumed that students
have some idea of their general attitude on such matters. I have
followed the practice in my own sections of freshmen of requiring them
to put at the head of their brief and of their argument the audience
which they had in mind. Then when one comes to criticism and conference
one can by a little cross-examination bring home to them the very
practical nature of this matter of persuasion.

One must be careful not to insist too strictly on the model and the
scheme of work laid down here, and in practically the same form in other
books. It is the best that has yet been devised, but any student who is
set to making a brief of one of the examples of argument at the end of
this book will see for himself that there is no one infallible way of
making an argument. Each argument must adapt itself to its occasion and
its audience; and an instructor will be wise to keep himself awake to
this truth by noting divergencies from the model. The rules which are
here set forth and the model which is built on them are serviceable just
so long as they are serviceable, and no longer. Their chief service is
done when they have set up in the minds of students a standard of
effectiveness in singling out and emphasizing the critical issues of a

As to the exercises which should accompany the work in argument my
experience with classes of five to six hundred freshmen leads me to
think that their value to the student can hardly be overestimated. I
will speak here of a few of them.

The exercises in the use of reference books is something that every
student ought to be put through. I found it simple and not too
extravagant of time to take my sections to the library in squads of ten
or a dozen, and show them and let them handle the principal books on the
list. Then on the spot I gave each of them a sheet of theme paper on
which I had written some sort of fact drawn from one of these books, and
told them to look up that fact and report on it. My object was to
convince them that most ordinary facts can be looked up in less than
five minutes. The material for this exercise I got by turning over the
reference books and jotting down almost anything that caught my eye. One
can in this way get a great variety of facts in a very short time. In
some libraries it might be possible to get members of the library staff
to share in this instruction; in all libraries one will find active

For the preliminary work on the argument we found that it was often
practicable and advisable to let the students pair off on the two sides
of the question, and work together through all the preliminaries. Two
men thus working together often discuss themselves into the liveliest
kind of interest in their question; and almost always they come closer
to the important issues involved by sharpening their wits against each
other. Their arguments, too, are better, especially in the refutation,
from their knowing just what points can be made on the other side.

It is excellent practice, not only for the brief and the argument, but
also for all other college work, to set the students to making briefs of
parts or wholes of the arguments printed here as examples, or of other
arguments found outside. Not only lawyers, but other men of affairs,
constantly have to digest and summarize papers; and skill in picking out
essential facts and the thread of thought from a document is a highly
valuable asset for practical life. The exercise is sometimes irksome to
students, for it is hard work at first and calls for concentration of
mind: but it can be sweetened and made livelier by the competition of
classroom discussion.

All through the work on the argument students may well be set to
watching the daily papers and the magazines for examples of arguments,
and of good and bad reasoning. Very often an instructor can get, at the
cost of a cent or two apiece, a set of arguments printed in a newspaper
for his class to analyze. Senators and representatives in Congress are
notably willing to send copies of speeches, and these sometimes furnish
good examples of both sound and unsound reasoning.

If time serves, instructors will do well to give a grounding in logic. I
have inserted a brief discussion of the subject with the hope that it
will furnish a basis for a short study; it can be reenforced by a few
weeks on such a manual as Jevons's "Primer of Logic," or Bode's "Outline
of Logic" if there is time. Whatever be one's view of the positive value
of deductive logic, there can be no doubt that every student should have
some knowledge of the canons of inductive logic, and that a study of
propositions and syllogisms is a mighty sharpener of the discrimination
for the real meaning of words and sentences.

The short chapter on debating I have added for the use of classes where
a moderate amount of training in this most useful of exercises is
practicable. Debating may be looked at in two ways, either as training
in alertness and effectiveness in discussion, or as a form of
intercollegiate or interscholastic sport. On the latter aspect a
recognized authority has said: "Formal debate is a kind of game. In the
time limit, the order of speakers, the alternation of sides, the give
and take of rebuttal, the fixed rules of conduct, the ethics of the
contest, the qualifications for success, and the final awarding of
victory, debate has much in common with tennis";[79] and he develops the
likeness through a page of rather fine print. From this point of view
debating has keenly interested a small body of students; in some
colleges it has been recognized by hatbands or other emblems of
distinction for the successful "teams"; and it has developed an
elaborate apparatus of rules and of "coaches." With the game in this
full bloom I have not space to deal in this small book; for such
elaborate work of analysis and preparation one must go to special
manuals which deal with it at length. I have confined myself to an
application of the general principles of the subject to the spoken
argument, and to a few suggestions for preparing for and carrying on the
not very formal discussions which the average man gets into in the
ordinary run of life.

Even where there is not time for systematic practice in debating, much
may be done by extemporaneous five-minute speeches. There is
unquestionably an active movement among the best teachers of English for
more stress on oral composition; they recognize that the power to stand
quietly and at one's ease on one's feet and explain one's views clearly
and cogently will help any man in his life work.

In some cases there may be local or academic subjects under discussion
at the time the class is working on argument on which they can prepare
themselves to speak. It may be possible to interest graduates of the
school and college, so that they will give help in getting material, and
perhaps in judging and criticizing. Occasionally, perhaps, a man who has
the actual settlement of a local question or a share in the settlement
may be willing to hear the discussion. Any aid of this sort that will
bring the debate within the bounds of reality will add zest to it.

For the use of this book when a comparatively short time, perhaps six
weeks, is at the disposal of the instructor, my advice, based on the
practice worked out with my colleagues in the freshman course at
Harvard, would be to begin with Chapter I, and at the same time ask the
class to hand in subjects for approval. This should be done a fortnight
ahead of the main work, in order to allow changes of subject, after
consultation if necessary. In connection with Chapter II would come
exercises in making briefs of one or more of the arguments in the back
of the book or of others provided for the purpose. Then would come the
preliminary work on the brief, the introduction to the brief. This it is
profitable to treat as a separate piece of work, with a grade of its
own. At this stage would be the place for the exercises in the use of
reference books, which will lead naturally to looking up the material
for the brief. If possible a conference should be given on the
introduction to the brief. Then comes the next main step in the work,
the brief. The work for this would naturally be accompanied by study of
Chapter III, and by such exercises in the correction of bad briefing and
in correction of fallacies as the instructor finds time for. There
should be another conference on the brief, and it should be rewritten if
necessary. Instructors who have been through the subject will know from
sad experience that one rewriting and one conference may be only
starters. Then comes the argument itself: this should be the climax, and
not merely a perfunctory filling out of the brief. If it be at all
possible, the argument should be rewritten after a conference, and the
conference can hardly be too long. If the argument is fifteen hundred or
two thousand words long, a half an hour will be found a short time to go
over the whole with any thoroughness. No instructor in English needs to
have it pointed out that conferences are his most efficient means of


[Footnote 1: See Lincoln's speech at Galesburg and at Quincy, in the
Lincoln-Douglas debates.]

[Footnote 2: O. W. Holmes, Jr., The Common Law, Boston, 1881, p. 35.]

[Footnote 3: For such changes of fashion in literature see Stevenson's
Gossip on Romance and A Humble Remonstrance in "Memories and Portraits,"
and The Lantern Bearers in "Across the Plains."]

[Footnote 4: From the speech on the Repeal of the Union with Ireland;
quoted by W. T. Foster, Argumentation and Debating, Boston, 1908, p,

[Footnote 5: A. Sidgwick, The Application of Logic, London, 1910, pp.
40, 44.]

[Footnote 6: From the speech of Senator Depew, January 24,

[Footnote 7: C. R. Woodruff, City Government by Commission, New York,
1911, p. 11.]

[Footnote 8: A. Sidgwick, The Application of Logic, London, 1910, p.

[Footnote 9: W. Bagchot, The Metaphysical Basis of Toleration,
"Works," Hartford, Connecticut, 1889, Vol. II, p. 339.]

[Footnote 10: From Huxley's first Lecture on Evolution (see p. 233).]

[Footnote 11: C.R. Woodruff, City Government by Commission, New York,
1911, p. 6]

[Footnote 12: See Lincoln's speech at Ottawa.]

[Footnote 13: _The Outlook_, November 20, 1909. See also the example
quoted on page 180, from William James's Will to Believe.]

[Footnote 14: A full and very readable account of the growth of the law
of evidence and the changes in the system of trial by jury will be found
in J. B. Thayer's Preliminary Treatise on the Law of Evidence, Boston,

[Footnote 15: George Bemis, Report of the Case of John W. Webster,
Boston, 1850, p. 462. Quoted in part by A.S. Hill, Principles of
Rhetoric, p. 340.]

[Footnote 16: H. Muensterberg. On the Witness Stand, New York, 1908, p.

[Footnote 17: _The Nation_, New York, Vol. XCI, p. 603, In a review of J.
Bigelow, Jr.'s Campaign of Chancellorsville.]

[Footnote 18: Mr. Gardiner was answering Father Gerard's book on the
Gunpowder Plot.]

[Footnote 19: S. R. Gardiner, What Gunpowder Plot Was, London, 1897, pp.

[Footnote 20: Wines and Koren, The Liquor Problem. Published by the
Committee of Fifty, Boston, 1897.]

[Footnote 21: Reprinted in Educational Reform, New York, 1898. See p.

[Footnote 22: A committee appointed by the National Educational
Association to recommend a course of study for secondary schools.]

[Footnote 23: H. Muensterberg, On the Witness Stand, New York, 1908, p.

[Footnote 24: W. James, Psychology, New York, 1890, Vol. II, p. 330; B.H.
Bode, An Outline of Logic, New York. 1910, p. 216.]

[Footnote 25: B. H. Bode, An Outline of Logic, New _York_, 1910, p. 170.]

[Footnote 26: C. R. Woodruff, City Government by Commission, p. 184.]

[Footnote 27: Professor John Trowbridge, in the _Harvard Graduates
Magazine_, for March, 1911.]

[Footnote 28: W. James, Human Immortality, Boston, 1898, p. 11.]

[Footnote 29: B. H. Bode, An Outline of Logic, New York, 1910, p. 162.]

[Footnote 30: The Origin of Species, London, 1875, p. 63.]

[Footnote 31: "There is only one aim in all generalization--the finding
of signs that are fit to be trusted, so that, given one fact, another
may be inferred."--A. Sidgwick, The Process of Argument, London, 1893,
p. 108.

"The whole object of any class name is to group together (for the
purpose of making general assertions) individual members which are not
only alike but different; and so to give unity in spite of
difference."--A. Sidgwick, The Use of Words in Reasoning, London, 1901,
p. 165.]

[Footnote 32: W. James, Psychology, New York, 1890, Vol. II, p. 342.]

[Footnote 33: See B. Bosanquet, The Essentials of Logic, London, 1895, p.
162; A. Sidgwick, The Process of Argument, London, 1893, chap. vi; B.H.
Bode, An Outline of Logic, New York, 1910, p. 234.]

[Footnote 34: A. Sidgwick, Fallacies, New York, 1884, p. 342.]

[Footnote 35: A. Sidgwick, Fallacies, New York, 1884, P. 345.]

[Footnote 36: A. Sidgwick, The Use of Words in Reasoning, London, 1901,
p. 91.]

[Footnote 37: J.S. Mill, A System of Logic, Book III, chap. iii, sect. 2;
quoted by E.H. Bode, An Outline of Logic, New York, 1910, p. 109.]

[Footnote 38: Quoted by A. Sidgwick, The Use of Words in Reasoning,
London, 1901, p. 28, note.]

[Footnote 39: See also the next to last paragraph of the argument on The
Workman's Compensation Act, p. 268.]

[Footnote 40: New York, March 9, 1911, p. 241.]

[Footnote 41: B. H. Bode, An Outline of Logic, New York, 1910, p. 71.]

[Footnote 42: W. James, Psychology, New York, 1890, Vol. II, p. 365.]

[Footnote 43: Abraham Lincoln, Complete Works, edited by Nicolay and Hay,
New York, 1894, p. 445.]

[Footnote 44: C. R. Woodruff, City Government by Commission, New York,
1911, p. 186.]

[Footnote 45: B. H. Bode, An Outline of Logic, New York, 1910, p. 86. For
another example see Luke XX, I 8.]

[Footnote 46: From the Essay on Warren Hastings, The Works of Lord
Macaulay, London, 1879, Vol. VI, p. 567.]

[Footnote 47: The Works of Daniel Webster, Boston, 1851, Vol. VI, p. 62.]

[Footnote 48: B.H. Bode, An Outline of Logic, New York, 1910, p. 30.]

[Footnote 49: Sidgwick, The Use of Words in Reasoning, London, 1901, p.

[Footnote 50: See, for example, his Apologia pro Vita Sua, London, 1864,
pp. 192, 329.]

[Footnote 51: Newman, The Idea of a University, London, 1875, p. 20.]

[Footnote 52: Felix Adler; quoted by Foster. Argumentation and
Debating, Boston, 1908, p. 168.]

[Footnote 53: From the Essay on Milton, The Works of Lord Macaulay,
London, 1879, Vol. V, p. 28.]

[Footnote 54: C.W. Eliot, Educational Reform, New York, 1898, p. 375.]

[Footnote 55: W. James, The Will to Believe, New York, 1897, p. 3.]

[Footnote 56: _The Atlantic Monthly_, Vol. CVII, p, 14.]

[Footnote 57: It was invented and developed by Professor George P. Baker
in the first edition of his Principles of Argumentation, Boston, 1895.]

[Footnote 58: Lamont, Specimens of Exposition.]

[Footnote 59: See the passage from James's Psychology, p. 150.]

[Footnote 60: Reprinted in Baker's Specimens of Argumentation, New York,

[Footnote 61: _World's Work_, Vol. XXI, p. 14242]

[Footnote 62: From the stenographic report of the argument; reprinted in
the author's Forms of Prose Literature, New York, 1900, p. 316.]

[Footnote 63: W. James, The Will to Believe, New York, 1897, p. 7.]

[Footnote 64: See Baker and Huntington, Principles of Argumentation,
Boston, 1305, p. 415.]

[Footnote 65: Fuller discussion of the rules for the distribution of the
speakers and the time will be found in Baker and Huntington, Principles
of Argumentation, p. 415; and an elaborate, almost legal, set of
instructions to judges, and the agreement of a tricollegiate league, in
Foster, Argumentation and Debating, Boston, 1908, pp. 466, 468.]

[Footnote 66: Suggestions of points for the judges to consider will be
found in Pattee, Practical Argumentation, p. 300; and format
instructions in Foster, Argumentation and Debating, Boston, 1908, p.

[Footnote 67: Lecture I of three Lectures on Evolution. From American
Addresses, London, 1877.]

[Footnote 68: The diagram, which is not reproduced here, gives an ideal
section of the crust of the earth, showing the various strata lying one
under the other. The strata are divided by geologists into three groups:
the Primary, which is the oldest and deepest; the Secondary, above that;
and the Tertiary and Quaternary on top. The Cretaceous is the lowest
stratum of the Tertiary.]

[Footnote 69: One of the upper strata of the Primary rocks.]

[Footnote 70: The Silurian rocks occur about the middle of the Primary
formations. The _eozooen_ was formerly supposed by some geologists to be
a form of fossil. The Laurentian rocks are the lowest strata of the
Primary formations.]

[Footnote 71: The Jurassic formation occurs about the middle, the
Triassic, just below it, in the lower half of the Secondary rocks. The
Devonian occurs just above the middle of the Secondary, between the
Carboniferous above and the Silurian below.]

[Footnote 72: From _The Popular Science Monthly_, July, 1901.]

[Footnote 73: Knowledge of the cause.]

[Footnote 74: Prevention.]

[Footnote 75: _The Outlook_, April 29, 1911.]

[Footnote 76: Probably the reason why it has not yet been adopted by
Switzerland is because her organized manufacturing Industries are so few
that no pressure has been brought upon the state to change the law.]

[Footnote 77: Robertson _vs_. Baldwin, United States, 281.]

[Footnote 78: Noble State Bank _vs_. Haskell; Shallenberger _vs_. Bank of
Holstein, January 3, 1911. Lawyers' Cooperative Publishing Company,
Rochester, New York.]

[Footnote 79: Foster, Argumentation and Debating, p. 281.]

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