# THE NEW TRAIL

## I

### The Promise of Self-Government

President Roosevelt is interested in the Indians; he cares about them, and he is never going to allow any wrong-doing toward Indians so long as he is President. Secretary Ickes is known to many of you. He is Secretary of the Interior. He has been interested in the Indians and has been coming out here to visit you for ten years. He has met with you in your All-Pueblo Council. In addition, he is a man of great strength and, if necessary, he will fight the world for Indian rights. I am sure that the reason I was asked to be Indian Commissioner was certainly not because I had any political strength, because I had none at all. I did not even know President Roosevelt. I had never met him, and I have not got the reputation of being an able business man. I am not. I have not got the reputation of being a good executive. I am not. I was selected because President Roosevelt, as well as Mr. Ickes, wanted to select someone whom the Indians wanted, and they wanted to select somebody who had been out on the fighting line and had been fighting for the Indians, and I was put in office in order to keep on fighting, if necessary, for the Indians. You can see as I draw the picture and can remember how great the change has been. (Honorable John Collier, Commissioner of Indian Affairs, Minutes of All-Pueblo Council, Santo Domingo Pueblo, July 4-5, 1933, pp. 4-5)

I

<u>The Promise of Self-Government</u>

The purpose of this title of the bill is to bring to an end the
absolute power of the Indian Bureau over the lives and affairs of the
Indians * * * When an Indian tribe gets ready for self-government, the
Secretary of the Interior will send out expert advisors who will help you
to frame the kind of a charter that you would like to have with the powers
that you feel ready to undertake. (Mr. Shepard, <u>Report of Southern Arizona</u>
<u>Indian Conference held at Phoenix Arizona, March 15-16, 1934 For the Purpose</u>
<u>of Explaining the Howard-Wheeler Bill to the Assembled Indians</u>, Phoenix
Indian School Print Shop, Phoenix, Arizona, p. 3)

When you look at the Indians in other parts of the country, practi-
cally all of the Indians are entirely at the mercy of the Secretary and
Commissioner. We can forbid them to organize at all or we can say how they
are to organize. We can ride rough shod over their local customs or their
local conditions and they are quite helpless. They can't be expected to build
up their life as long as any Commissioner of Indian Affairs can come in and
knock it down, and in the past Secretaries of the Interior and Commissioners
have spent a good deal of their time knocking down things that the Indians
have been trying to build up. Secretary Ickes and I are not doing that, but
we are only temporary. Pretty soon we won't be here any more, and we want
before we get out of office, to procure safety for the Indians in this matter
of their self-government, as well as the matter of their lands. That is why we
are promoting this self-government Bill.

Now, what do we mean by self-government? What are we talking about?
It may mean a great many different things. Self-government may mean nothing
but this; that the pueblo can decide about punishments for fist-fights or
wife beating, etc. It can have its own court to keep peace. It might mean
no more than that. But self-government might mean a great deal more than
that. Suppose a pueblo borrows $100,000 for a loan fund. I mean, suppose
the pueblo gets a gift from the Government of $100,000 to be used as a loan
fund, and then the pueblo authorities begin to administer that $100,000 so
as to make it do good, so as to be fair to everybody and so as not to lose
the money but get it back and loan it again. That is self-government too.
(Honorable John Collier, Minutes of All-Pueblo Council, Santo Domingo
Pueblo, March 15, 1934, at pp. 17-18).

II

The Powers of An Organized Tribe

In law, and I wish the attorneys would correct me if I am wrong,
each pueblo is as the Supreme Court has stated, a municipal corporation,
an organized body of citizens living within a certain territory, and its
powers you may say, are all those things which are inherent, the power to
tax, the power to adopt ordinances governing behavior, the power to enforce
decrees, including penalties for violations of law, the power to amaintain
an organization for law enforcement, power to regulate the life in such a
way that it is comfortable for every member of the corporation. Those
powers are all inherent and would be sustained by the court and backed by
the Department. There are certain things which lie outside. If a murder
is committed the jurisdiction over that alleged crime is in the Federal
Court. Those crimes go into the Federal Court. Substantially everything
else is within the power of the local community, which means, of the governor
and his council, so that the power in law is a very broad power. (Honorable
John Collier, Commissioner of Indian Affairs, Minutes of All-Pueblo Council,
Santo Domingo Pueblo, July 4-5, 1933, pp. 93-94).

### III

#### Tribal Funds

Suppose Lagune Pueblo comes and asks for, let us say $100,000 to be taken out of this loan fund, the pueblo would have that money to lend to its members. If the Pueblo of Laguna wants to make a charge to cover the cost of investigating who ought to get a loan, or the cost of collections, that would be entirely up to the Pueblo of Laguna, and they probably would do that because they would want to make this thing self-supporting. I should make this clear - that these money loans will be loaned to organizations and communities and they will then lend them. (Honorable John Collier, Commissioner of Indian Affairs, Minutes of All-Pueblo Council, Santo Domingo Pueblo, March 15, 1934, p. 12)

I cannot go too much into detail, but there is one other highly important point that I want to mention that I know will appeal to every Indian here today, and that is if this bill passes, the Federal Government can no longer spend tribal funds without the consent of the tribe. Is that clear? That your tribal money in the future cannot be spent by Congress or by the Secretary of the Interior or by the Commissioner of Indian Affairs unless you agree to have him spend it. As you know during the past 30 years or more, hundreds of millions of dollars in tribal funds have been spent by the government without the consent of the Indians and much of that money has been used for the administration of the office of Indian Affairs.

Another important point is that in the future no federal appropriation spent for the benefit of the Indians or spent on an Indian reservation can

become a reimbursable debt against that tribe without the consent of the
tribe. In other words you are not going to have debts fastened on your
shoulders unless you want to have them. (Mr. Shepard, Report of Southern
Arizona Indian Conference Held at Phoenix, Arizona, March 15-16, 1934 For
the Purpose of Explaining the Howard-Wheeler Bill to the Assembled Indians,
Phoenix Indian School Print Shop, Phoenix, Arizona, at. p. 5)

IV

Indian Education

It seems that our problem is to build up such day schools that the Pueblo child, through the school, is given the whole wonderful richness and beauty of his pueblo life, because the pueblo life is something great. White life has nothing as deep or as precious to give to a Pueblo child as his own pueblo has got to give. (Honorable John Collier, Commissioner of Indian Affairs, Minutes of All-Pueblo Council Santo Domingo Pueblo, July 4-5, 1933, p. 108)

A certain number of these schools will be continued and will become sort of colleges to give advanced education to Indians. Next year we are starting in to make Haskell into an Indian college. It will give an opportunity for advanced training to Indians, and you will be interested to know that we are doing that under the direction of an Indian, Dr. Henry Roe Cloud. (Applause). (Ibid, p. 86)

You all know that many Indians are very capable of doing Government work, but they can't be employed because of Civil Service. They haven't got the academic, the college education, and so they can't qualify under the Civil Service and they can't get good jobs. It will interest you to know that the Indian Service has been going backward in this matter, not forward. The ideal of the Indian Service is to have all the jobs held by Indians, right up to the Commissioner. Actually, if you go back to the year 1900,

34 years ago, there were more Indians in the regular employ of the Indian Bureau than there are now, in comparison to the number of employees. I am not talking about the E. C. W., I mean the regular Indian Service. That is due primarily to the Civil Service. Now what does this Bill do? It directs the Secretary of the Interior to set out the qualifications that are necessary for an Indian to be a good workman in any of the Government jobs done in his community. In other words, the Secretary is directed to set up tests. Only Indians can take these tests, not white people, and the Indian can then show whether he is capable of being a good stockman, a good Government farmer, a teacher, a nurse, or a doctor, a school inspector, or a superintendent. Now, when the Indian has qualified and found fit by the Secretary - the Civil Service Commission has nothing to do with it - then whenever there is a vacancy his pueblo can demand that he be appointed to that vacancy and the Secretary and the Commissioner have got to appoint him. What this means is the setting up of a special Civil Service for Indians, made up in such a way that Indians can qualify under its tests, and then too the pueblo and the local community are given the power to elect, to appoint its own members to the Government jobs.

Now, one more power. At present the Secretary of the Interior appoints all of the officials of the Indian Bureau, and the regular employees have Civil Service protection. It has sometimes happened in the past that an employee was not satisfactory to the Indians. Any employee might be unsatisfactory, from the farmer up to the superintendent, but the Indians have not had anything to say about it. All they could do was to complain. Under this Bill, if an Indian tribe or pueblo took out a charter

then the Pueblo or community could compel the Secretary and the Commissioner to move out any objectionable employee; of course, after due hearing and consideration and all that. This is a very important power to give an Indian community, and in some places it would lead to hardships, and it might lead to injustices to Government employees. Nevertheless, we feel that the Indian Service exists for the Indians, that in the long run we are the agents and servants of the Indians, and if we can't satisfy the people that we are working for, the Indians, then the Indians ought to decide whether they are going to keep us or get somebody else. We feel that that is a fundamental principle. (Honorable John Collier, Minuted of All-Pueblo Council, Santo Domingo Pueblo, March 15, 1934, at pp. 19-20).

You know that at the present time all these local jobs in the Indian Service are under the Federal civil service and that as a rule the Indians can't get those jobs. There are fewer Indians in the Indian Service today than there were twenty years ago. We believe that the Indian young people can be trained to do this work just as well as the white young people, but we do not want to force you to compete with all the millions of white people that want to get these jobs. We think that these jobs should be kept for the Indians because they are in your own community and they are for your own advancement.

Under this bill these jobs which are to be filled by Indians will not be under the civil service, but the Commissioner of Indian Affairs will lay down certain qualifications and requirements for these jobs and Indians who wish to get these jobs must meet these requirements. We feel it is necessary to help your young people to get the right kind of

training so that they can carry on these services and therefore this
bill provides an appropriation which will be loaned without interest
to help the young people to get the right kind of training at our
regular universities or in special schools. The government will pay
half of the cost of the education and the student will pay back
gradually the other half when he gets a job. If he doesn't get a
job, he doesn't pay it back. (Mr. Shepard, Report of Southern Arizona
Indian Conference held at Phoenix, Arizona, March 15-16, 1934 For the
Purpose of Explaining the Howard-Wheeler Bill to the Assembled Indians,
Phoenix Indian School Print Shop, Phoenix, Arizona, p. 4)

The Transfer of Services

I want now to come to a second important part of the self-government idea, and that is that in the future under this bill the powers now exercised by the Indian Service over the lives and property of the Indians will be on a different basis and that basis will be that of cooperation so that the Indian Service will become the cooperator and advisor of the organized, self-governing Indian tribes. We plan, for example, that the Indian communities, these organized communities that receive a charter, will become capable of gradually taking over the functions and services now performed by the Indian office and that your own young people will be trained to undertake that work and will be given jobs and will be paid by the Federal Government. That means, for example, that gradually Indians will be trained as teachers, farmers, foresters, range managers, administrators, police or as agricultural extension workers, and Indian girls will be trained as nurses, domestic science workers, teachers, office workers, and as you have qualified workers to take over these services, they will be transferred to your community. Congress will give you the right to hire these people and Congress will pay for it. (Mr. Shepard, Report of Southern Arizona Indian Conference held at Phoenix, Arizona, March 15-16, 1934 For the Purpose of Explaining the Howard-Wheeler Bill to the Assembled Indians, Phoenix Indian School Print Shop, Phoenix, Arizona, p. 4)

Question. Suppose that our people are capable of handling their own affairs and suppose that we obtained a charter. Now, is it possible through this bill for that organization as a whole to take over the work in the education, health, farm extension service, etc.? Could we become the Indian Bureau as far as the tribe is concerned?

Answer. Completely. When a tribe is capable of taking over, say schools, health service, etc., then the Secretary transfers that authority along with the property to the tribe, and the tribe receives money from Congress. If the tribe does not make a success, it can be brought back. If it is a success, it can finally take over anything. (Honorable John Collier, *Proceedings of the Conference for the Indians of The Five Civilized Tribes of Oklahoma, Held at Muskogee, Oklahoma, March 22, 1934, to Discuss the Wheeler-Howard Indian Bill*, at p. 65).

VI

<u>The Indian Land Program</u>

It is the policy of this administration that the Federal Government
owes a duty to the poor and landless Indian just as much as to the Indian
who still has his land.

We do not say that every Indian ought to live on the land and farm
it and use it, but we do say that if he wants to live on the land and use
it, it is the duty of the Federal Government to supply him with the land
and with the necessary money to develop the land. (Honorable John Collier,
Commissioner of Indian Affairs, *Proceedings of the Conference for the
Indians of The Five Civilized Tribes of Oklahoma, Held at Muskogee, Okla-
homa, March 22, 1934 to Discuss the Wheeler-Howard Indian Bill*, at p. 15).

What the Indians Said

The Bill now before us, as I understand it, gives us these things
that it recognizes - our form of government. It revises it and gives it
added power to meet conditions in the particular area in which we are
living. It seems this way to me. I will illustrate it this way. We were
living in a nice house as Pueblo Indians. Our house was crude but sub-
stantial. It was satisfactory to us. We were happy and everybody was
engaged in something. The white man came one day and says "that house
of yours looks crude to me. I will offer you a better one in its place.
I will set that house on fire." We remonstrated but he set fire to it;
we lived in it anyway and to his consternation the thing hasn't burned for
the last three hundred years. The foundation is firm and still present.
Now the Government, through our Honorable Commissioner, Mr. Collier, a true
friend of the Indians, has voiced its decisions and says "we have failed to
find a satisfactory substitute for your form of government. Therefore, we
are going to pass a law and the effect of it will be this - we will help
you to build up that house we tried to destroy." We only wish to say that
it took a mighty long time for that house to burn down to its foundation and
it is going to take a mighty long time to build it up. It holds out to the
Indians security for the future, it holds out a strong hand for an Indian
whereby he can be enabled to cope with the situation, by offering him
unlimited education with means. As to his land rights, it guarantees that
to him with a promise of more additional land. As to religious affairs,
that is fully protected under the Constitution of the United States. The
Bill does not touch that. As to law and peace, it provides a way whereby
it can be handled and carried on. It appears to me, speaking for the Hopis

from our pueblo and other pueblos, that the Bill should pass. ***
But education or civilization does not consist of the white man's form
of civilization. We Indians have always had our own government and
civilization composed of progress in arts and crafts and contentment.
Perhaps the Government might have adopted what I term an indirect form
of Government, rather than direct in working through our government.
In 1924 we were declared citizens of the United States, but how many of
us are citizens? Our lands are being taken away notwithstanding. We
have no access to courts. I do not see that the Bill would have any
tendency to drive us back into the old form of government, and if it does
I don't think any Indian would want to do it. We will progress ahead.
Thank you. (Otto Lemitovi, Hopi, Minutes of All-Pueblo Council, Santo
Domingo Pueblo, March 15, 1934, at pp. 46, 47, and 48).

Our form of government was functioning before the birth of the United
States of America. The King of Spain recognized it, and we have a cane which
was supposed to have been sent by the King of Spain, confirming authority on
the governors of the pueblos. Isleta was one of them. When the Mexican
government was formed during the war in 1812 and the change was made, we
have another cane that was sent by the Mexican government recognizing the
pueblo authorities and their governors. When we came within the United
States Mr. Abraham Lincoln gave us another cane as a symbol of our authority,
recognizing the authority of the different pueblos at that time. Up to this
time we have the same form of government. At that time the Europeans were
pillaging, murdering, and massacring each other, and the Indians were living
in peace. I can say, without hesitation, that when it comes to pure meanness,

Civilisation and the Growth of Law. By William A. Robson. New York: The Macmillan Co. 1935. Pp. xv, 354. 2s.75.

Dr. Robson is a distinguished barrister and Reader in Administrative Law in the University of London, who has recently discovered the seminal fact that law is part of human life and, like the rest of it, influenced by men's ideas about nature in general. This discovery has suggested to him a liberal and interesting course of reading in rather familiar and for the most part secondary sources. Though we are assured that "the essential aim throughout has been to present a synthesis", the result looks more like the elaboration of a student's notebook than like an original systematic work on the subject. There is a noticeable lack of a clear and coherent set of ideas to hold together the diverse observations and bits of information. In the end it is not even clear what our author means by law and how it differs from custom.

Part I, entitled The Origins of Law, is in the main devoted to illustrations of the influence of supernatural ideas and practices on legal and political institutions. These illustrations are generally suggestive and sometimes illuminating, especially in the chapter on Curses, Blessings, Oaths. Students, however, should be warned against the methodologic frailties of books of this sort. In the first place, one must be on guard against the great vice of popular anthropology, so strikingly represented by J. G. Frazer, to wit, building on reports

of others without the most rudimentary critical examination of their
competence or reliability. Even when the authorities are of the
most unexceptional character, one is put to misapprehend what they
say and fall into serious error if he is not himself familiar with
the subject matter. This is illustrated by Dr. Robson's remark that
Kepler's laws mark the first occasion when laws of nature were expressed
in mathematical terms (shades of Archimedes!), or by his attributing
to the Greeks the view that human life is a reign of law but that
Nature is chaos. Even more serious, however, because more subtle,
is the error of what may be called the anecdotal method, according to
which illustrations are drawn from the ideas and customs of the most
diverse people without regard to their actual historical background
and meaning. This method vitiates the work even of men of genius like
Montesquieu and renders scientifically worthless such generalizations
as those of Herbert Spencer. On the whole it results in overemphasizing
the bizarre in the customs of ancient and primitive people to the
neglect of the common human elements which make these customs compre-
hensible in terms of our own daily experience.

Part II is entitled The Law of Nature and goes over the rather
familiar field of discussion of natural rights, natural law, and the
state of nature. Dr. Robson unfortunately has not a firm grip on the
history of this theme. He clearly misses some of the most significant
points in the work of Grotius.

2

In Part III, entitled The Nature of Law, the author proposes "to survey and analyse the relationship existing between contemporary science and con- temporary law." What Dr. Robson actually does, however, is to try to show that we can "reunite natural law with the laws of man by acknowledging the legislative power and creative ability of the human intellect to be the source of both." Now this philosophic idealism may be what Eddington and some other eminent scientists have said in their popular works, but it is as illegitimate to identify contemporary science with this view, as with the views of any religious denomination or political party which counts some distinguished scientists among its members. It is well to heed what dis- tinguished men say on subjects of their special competence, but the opinions of a mathematical physicist on philosophy, education, morals or politics are not science. If we disregard what men of science say when in the pul- pit and watch what they do when they are engaged in physical investigation or mathematical computation, we find them invariably taking for granted what geological evidence makes explicit, viz., that there was a material world before man and his legislative activity ever came on the scene. It is flattering to human vanity to make man the creator of nature or its laws, but if we were to take this seriously, we should have to say that we also create our own ancestors and the biologic laws according to which we have come into this world.

The hazy idealism which ignores such obvious facts has no difficulty in ignoring the existence of police, sheriffs, militia, jails, prisons, and other agencies concerned with penalties for those who disobey legal commands. Law doubtless involves more than brute force, and Dr. Robson

3

would be on firm ground if he were satisfied to note how frequently
law evolves a generally convenient pattern of conduct. But every law
necessarily affects some class of persons differently from others.
Hence no government can exist without some force to compel obedience
to its commands. Dr. Robson adds only vehemence but not logical
force to the many vain attempts to overthrow this sound core in Aus-
tin's theory of law.

Altogether the spirit of this book is that of humane liberalism,
but also of pious disinclination to come to close grips intellectually
with the hard realities of the law, realities that are inseparable from
the human lack of omniscience, omnipotence and universal good will.

~~Morris R. Cohen.~~

REFER IN REPLY TO THE FOLLOWING:

ADDRESS ONLY THE
COMMISSIONER OF INDIAN AFFAIRS

UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF INDIAN AFFAIRS
WASHINGTON

June 27, 1939.

To the Indians of the

Salt River Reservation.

The first graduating class of the Salt River Vocational High School is small in number but of good quality, if one may judge by the speeches made by the members of the class at the exercises on May 29. I am glad to have had the opportunity to read them and am sure all of you who heard them were proud of the boys and of the school.

These four boys are now ready to commence that part of their lives for which they have been in training at home and in school ever since they were born. Whether they will be as successful in the future as they have in the past will depend on each one's own efforts — no one else can live his life for him. His parents may be helpful and his Tribe can make it possible, through its land program, for him to make a living and have a home on land assigned to him for that purpose, the Government may assist him in various ways to get a start, but after all it will be up to the boy himself whether he makes good. Or, if he chooses to seek training and opportunity in other lines of work, still it will be true that the boy will only go as far as his own ability and perseverance will take him.

It is my earnest hope that these first graduates of the Salt River Vocational School may be successful, each in his own way, and that they may add strength and vitality to the Salt River Community as they advance in years.

Best wishes to the boys and to the Salt River people.

67753

On May 29, 1939, at 8 PM, the first graduation exercises were held at the Salt River Vocational High School. Four boys graduated at that time. They were:

Harvey Leo Shurz,
Ernest Cheerless Antone,
Joseph Clayton Thomas,
Leonard Antone Juan.

At the graduation exercises these boys each delivered a speech. We felt, after hearing these boys, standing on the platform before about 700 people, that these speeches were worth preserving. In content they reflect some of the study and some of the work the boys have done during the past two years. They have studied about the ancient Pima, such problems as social adjustments, economic questions, land and water use, etc. In their English composition, these speeches reflect a great deal of credit upon these boys and their teachers. In their manner of presentation, these boys showed that they are now ready to take their place in the community as leaders of their people. They have proved themselves able to think, to plan, and to present to their people the result of their thinking and their planning. I believe we are justly proud of these four boys who composed the first graduation class of the Salt River High School. We are placing these speeches in our school library to be preserved and read by future pupils.

F. L. Shannon, Principal

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# THE CONTRIBUTIONS OF INDIANS TO CIVILIZATION

## LEONARD ANTONE JUAN

A few years ago in our Indian schools, boys and girls spent years in studying European history and the effect it had upon American civilization. They were taught of the great achievements of the lands across the Atlantic and of their powerful influence. Now we learn that the Indians of this western hemisphere contributed their share to civilization along with European and Asiatic countries. It is my task to show you some of these contributions.

Because Indians have always been and still are farmers their contribution has been greatest in this field. In looking over material concerning agricultural products known to Indians and not to the rest of the world at the time of the discovery of America I was able to list forty-five. I am quite sure that this list was not complete. To show the importance of these agricultural products let me quote from Scientist A. W. Pezet—"If some magician were to remove over night, every crop or product inherited from the American Indian, civilization would collapse!" Agricultural statistics show that today crops for which the world is indebted to our people are valued at more than three-thousands of millions of dollars.

When the first white men came to Arizona, they found our people cultivating several crops foreign to the rest of the people of the world. Long staple cotton, beans, the squash, the pumpkin, and the watermelon are the three most important. How many people today depend upon the long staple cotton for their living! The textile industry of New England would be ruined without it. Corn and tobacco both hold high places in agricultural products. Both were given to the world by the Indians. There are many more as the potatoe, strawberry, tomato, and the peanut.

Our South American neighbors contributed rubber without which the world would be without electric power, telephone, telegraph, and automobile tires. The $50,000,000 chewing gum industry depends upon chicle, cocoa chocolate, coffee, pineapples, and the sisal used in rope making are also products of these Indians.

Today the United States is faced with a huge problem in agricultural economics. With such an inspiring background and with such a hopeful agricultural future, the Pimas should be able to contribute even more in the future than they have in the past.

Indians of the days before Columbus used many plants and roots as medicine. Without one of these, quinine, the Panama Canal could not have been built. Many Indians have followed the profession of the ancient medicine man and have become doctors—notably; Dr. Montezuma, of the Fort McDowell Indians, and Dr. Powless a Chippewa.

67753

Indians are famous for their ability as athletes. Jim Thorpe has be-
come an American athletic tradition and with him we have Lone Star Dietz;
Tom Stedman; Chief Bender, pitcher for the Athletics for 18 years; and many,
many others. To the earliest Americans we credit the game of basketball,
for although it was invented by a mid-western coach it was played by the
Maya Indians, conturies before the white man came.

Examine some of the ancient Indian temples of worship and then examine some of New York's largest skyscrapers and you will see a very close resemblance. Study the art of any group of Indians on the North American continent and you will see why artists all over the world argue that Indian artists have given and are continuing to give the world something beautiful and lasting in the way of art.

One thing to which we as Indians might point with pride is the system of government found in nearly every ancient tribe. Here was no class distinction and with the exception of the chief, everyone was socially equal. No one went hungry while neighbors food ratted in bins. Everyone in the tribe was clothed and fed and sheltered. One man who boasted Indian heritage became beloved to the whole world because he lived this philosophy of equality and fair dealing. That man was Will Rogers. Other men who have well represented our people at our national capitol were Charles Curtis and the beloved Senator Hastings of Oklahoma. Other outstanding men who have done notable work in law and government are Charles Ground and Carl Taylor.

Recent contributions to American culture have been Dr. Eastman, a prominent writer; Henry Poe Cloud, an educator; and Shunatona, well known band leader.

Some ideals held by ancient Indians could be a distinct contribution to the world if copied by modern countries. They were extremely religious. If our modern nations would adhere as strictly to the teachings of Christ as these pagan customs we would find the world much better off today. If our so-called world powers would adopt the policy of peace and commerce held by our ancient business men the world would not be tottering on the brink of another war as it is today.

Let us all be proud of our contribution to the world. Let us all feel that we are a vital part of our country and as such let us strive for the continued growth of Indian knowledge and well being.

2

67753

AGRICULTURAL HISTORY OF THE PIMA
ERNEST CHEERLESS ANTONE

Pima agricultural history is the story of the struggle of our tribe to conquer the land and to make the desert fruitful. In this hot dry land the greatest problem has always been water. Without water the crops would not grow and our people would be destitute. With water our crops flourish and the people are happy and content. Water is the greatest gift of a merciful God to a desert people and now in the year 1939, after centuries of struggle, our people have been given this great gift by a wise government that realizes what a fruitful land will mean to an agricultural people.

The Primas are famous in history for their early knowledge of farming skill. You all know that they had early irrigation systems. To the Pimas we do not give credit for the digging of the canals. This was done unknown centuries before recorded Pima history by the "Hohokam." But they did continue the use of these canals. These people added to previous knowledge the ability to free the soil from destructive alkali. They simply flooded the fields repeatedly, thus washing away all traces of alkali. In this way it was unnecessary to abandon any land and because the land of the Gila and Salt River valleys was kept rich by frequent floods the Pimas became a stationary group living year after year in the same place and raising the same crops. However this primitive system of irrigation was not wholly satisfactory as shown in Pima annals. Time and time again floods and droughts left the Pimas with no food. Some people lived too far from the river to get water and had to depend upon the flooding of fields during rainy seasons. Pima history is marked by "years when the crops failed because of no rain" and "years when the floods came." During this period of Pima agriculture, corn, wheat, beans, cotton, and melons were raised on small plots of 5 or 6 acres chosen by the people themselves. It is not to the discredit of the men that history says the women did the work--the men were busy protecting their homes from the Apaches.

This simple life went on for centuries and then came the white men. They, too, found it necessary to build canals and these they copied after those of the Indians. Then indeed did the Pimas begin to see hard times, for their water, often inadequate in the past, had to be shared. More and more farmers came and with them came the huge dams which made floods less frequent and rivers poorer sources of water. The fact that the Pimas did not become discouraged during this period attests to the fact that they are true farmers.

Our present era of agriculture was brought in by the Kent Decree which gave irrigation water from the dams to the Indians. We on this reservation have found it hardly enough to greatly improve our farming conditions and so we have continued very much in the old method of farming--raising about the same kinds of crops and livestock. But how we have longed for more water!

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And now almost miraculously the water that we have waited for so long has come to us. But instead of becoming a cure-all for troubles it has only complicated our problems. But this time these problems seem possible of solution. We are no longer trying to conquer nature. The water is ours. It is only up to us to use that water to the best possible advantage.

How will we distribute the water? Shall we go against hundreds of years of traditions and allow some people to become huge land owners while others go practically landless? Although we have had much good advice on this problem from our good friend, Mr. Shipe, it is still our problem to solve as we see fit.

There is also the problem of preparing ourselves for the task of adopting better farming methods to improve our farms. A great deal of this task will be taken over by the school in their new land use program. Under this program a subsistence homestead will be set up. This farm will be under school guidance for the purpose of instructing school pupils but it will also be used as a demonstration farm for the grown ups living on this reservation. This farm, to be truly successful, will need the 100% cooperation of the farmers of this community. It is necessary that we aid the school in every way possible that the boys and girls of our community may be trained to be really fine farmers and home makers.

Then there is still another problem which has been met on other reservations. During the land development program many of us have had work for which we have received pay. Two problems arise here. When the jobs stop will the people be willing to return to the slower task of cultivating their fields? When they do start farming what will they use for living expenses while their crops are being put in and until they begin to bring in money and food?

Remember we belong to a race of farmers. Difficulties and problems have always been with our people. Whatever our solution to our problem, may we try to benefit the largest group of people; may we profit by better farming methods; and may we keep the Pima tradition of simple living always.

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CONTRIBUTION of the SCHOOL to the PUPIL

Harvey Leo Shurz

This being the first graduating class from the Salt River Community
High School and the second from any of the newly organized community high
schools, it is fitting that we should pause briefly to consider something
of the history of our school. It is also fitting that we should consider
what the school means to the pupil, not in the mere acquisition of skills
and knowledge, but in the larger sense of preparation for a larger and
fuller life in the community.

Almost every person here has seen the evolution of this school from a
one room building now used as the women's club, to the present modern build-
ing where 250 boys and girls of our tribe attend school for nine months of
each year. You have all watched with interest the development of the twelve
grade school from the five grades of a few years ago. You know, too, that
today we are being educated to take our places as worthwhile citizens of the
community and not being trained to take some mythical "trade" job that 99
times out of 100 never materialize. Let me then tell you what we, graduates
of this new school, feel that we have received from this school and why we
are proud and happy to receive these certificates saying that we have satis-
factorily completed the courses offered us here.

Primarily we feel that we are equipped with five things for the new
and bigger field that awaits us, namely:

1. The ability to live with people around us.

2. A knowledge of the value of good health and how to acquire it.

3. An understanding of the use of leisure time.

4. The ability to make the best possible use of our resources for a
happy and comfortable life among our people.

5. Training in Pima history and tradition that it shall be preserved
for those who follow us.

Now let us consider these topics that we may see how our school has con-
tributed to each. First: We acquire the ability to live with our neighbors.
One of the greatest lessons that every child must learn is the lesson of so-
cial behavior. Left alone a child would grow with no respect for other
people—their rights or property. He would have not self-control. But with
the aid of the school our parents are able to cultivate in us a respect for
others and a moral obligation toward ourselves. When we enter school as be-
ginners we are not conscious of wrong doing in such actions as rock throwing
or hitting our playmates who displease us with their actions. When we are
ready to leave school as graduates we are not only able to control ourselves
but can aid our teachers in keeping law and order and we are conscious of our
duty toward the community and even toward larger units as state and nation.

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Second: We learn the value of good health. In our school there is not a single health class taught and yet every child is conscious of the importance of good health habits. Regularity and repetition of daily health practices and of regular check ups make it so much a part of our daily life that we will never forget it.

Third: We gain an understanding of the use of leisure time. Wholesome but worth-while and pleasant social life here in school, fun in all sorts of sports, and playing together as well as working together teaches us the right kind of fun. Good books all around us and teachers who patiently guide us teaches us to love to read worth-while literature. We learn here the pleasure of music. That is something that we shall have always to give pleasure to others as well as to ourselves. We learn the joy of creating beautiful things with the materials we have at hand. Certainly our spare moments should be happily filled.

The fourth is perhaps the most important thing of all: We learn the ability to make the best possible use of our resources for a happy and comfortable life among our people. We learn from the very first day of our school life to use the English language both written and spoken. We learn mathematics; and while none of us can work difficult geometry problems we can all keep our accounts. We can bargain and we can work problems of measurement. Then we learn through practice simple farm mechanics and construction of useful articles. We learn how to use the land that is our heritage that we may best put it to use for ourselves and our tribe. Our girls are learning to be good home makers that they may take their places as wives and mothers on our reservation.

Fifth: I mention our study of Pima history and tradition because it has been so sadly neglected in the past. Today the students of our school are better able to meet the problems of our situation because they understand the background of our people. We have been encouraged to preserve the beautiful things in our history and to weed out the things which are not beautiful.

This then is our training. From four loyal students of the Salt River School who will very soon become the first alumni comes this parting wish: May our school prosper and grow and may the teachers be encouraged by every member of this reservation to teach the Pima boys and girls the way to truly contented and worth-while living on the Salt River and Lehi reservations.

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# THE SCHOOL AND THE COMMUNITY

## JOSEPH CLAYTON THOMAS

No school can be really satisfactory without the support of its community and certainly any community without a school would be most unprogressive. Day by day the people of this reservation are realizing the huge importance of close cooperation between the school and the people whom it serves. Today our school is known, not as the Salt River Day School, but as the Salt River Community Center. This term implies real understanding between the two groups-- a successful effort on the part of the school to be helpful and a true understanding on the part of the people of the community of the work and aims of the school.

I would like to enumerate some of the contributions of our school to our community and while I am doing so it would be wise for everyone here to ask themselves if they are making the best possible use of the facilities open to them. If the people of the reservation would fully grasp the significance of the relationship between the school and the community, Salt River's growth would be limitless and her success would be assured.

The first contribution that I mention is one that has been recognized always—the training of young people. Harvey has covered pretty thoroughly the contribution of our school to the pupil. I shall not repeat them. Let me assure you that every effort is being made by the school staff to prepare our boys and girls for a complete life in the community. With the new land program which we all hope will be inaugurated next year the school will not stop its school training with a twelve year program but will follow young people on to land projects—aiding them in building permanent homes for themselves and their families. Already we have seen the work of the school with the young Mother's Club. Other organizations could be equally as successful. We have every reason to feel that the larger program among the young people will be a success.

Nearly every day the people here at the school are called upon to settle some problem arising on the reservation. It may be just disorderly conduct. Again it may be family trouble or trouble with people off the reservation. Conferences are held and advice is given; sometimes even, punishment is meted out to the wrong doer. Every attempt is made to teach a moral obligation to the people living here. Our homes are happier and our reservation is safer, cleaner, and more wholesome because of the efforts of the school staff toward enforcing law and order.

Then there is the use of school facilities. All of you have, at some time or other, used the Community Hall. Fewer have taken advantage of the home economics department, the shop, music equipment, and library. They are open to all of us. No one is too young and none too old to attend the Salt River Community School.

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The medical department is another department which is one of the vital parts of the community center. Do not think of this phase of the work of the school merely as an aid in curing illness but as the greatest factor in teaching everyone in the community to prevent sickness and how to raise the health and sanitation standards of our community.

The last that I mention is the social life furnished to the people of the Salt River School. Many people who are in constant contact with many reservations say that our P.T.A. meetings are some of the most excellent to be found on any of the reservations. This is evidence of the fact that the school and community work together. Then there are various parties and dances. From time to time we invite our families and friends to school parties. Every one of us, students and teachers alike, really sincerely want you. It is the hope of the school that in the future the parents will be as big a part of the social life of the school as are the students.

Is there anyone here who has not felt proud when someone has said, "You're from Salt River? Fine school you have out there. Nice group of people, too."
Do you realize how much the school has done to advertize your reservation?
Do you realize how much it does daily in increasing the pride of your people in their reservation? Do you realize that it helps to make you proud that you are a Pima or a Maricopa? Are you as good an advertisement for your school as your school is for you?

The boys here on the stage tonight feel that they are not leaving the school but are only entering into another stage of school work, a bit farther away from the daily school program and the rigid schedule of the school room, but as much a part of the school as ever. The school will follow them to their homes; they will bring the reservation to the school. It is to this larger and fuller program that we pledge ourselves.

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TO OUR GREAT WHITE FATHER
The President of the United States

We, the older Indians and Chiefs of the Colville and Okanogan
tribes of Indians of the State of Washington, open our hearts to you,
our great White Father at Washington. We tell you about our body,
about our lands; we speak for all our people, the men, the women,
the children, and the children that are not yet born. This is what
our fathers considered; this is what we consider this is what we
want you to consider.

We will tell you how we regard the white man according to our
view of things. We will speak the truth; we will speak plain so that
you can understand us. Those that speak the truth are not afraid to
speak plain; those who speak the truth do not need to speak with a
forked tongue. We speak the truth. You do not understand the Indi-
ans. People at large do not understand the Indians, and poke fun at
them every day. They always seem to have something to say about the
Indians and don't understand them - even at the odor of the Indian
you turn up your nose. We smell of the clean wood fire, of the woods.
Now, we do not like the smell of the white people. We don't like the
ways of the white people, but we have said nothing about that.

We will tell you about this Indian Country. This was our country. God created this Indian Country, and it was like he spread out a big blanket, and he put the Indians on it. The Indians were created here in this country, truly and honestly, and that was the time our rivers started to run. Then God put fish in the rivers, and he put deer and elk in the mountains and buffalo upon the plains, and roots and berries in the field, and God made laws through which there came the increase of fish and game. When the Creator gave us Indian life, we awakened and as soon as we saw the fish and the game we knew that they were made for us. For the men God gave the deer, the elk and the buffalo to hunt for food and hides; for the women God made the roots and the berries for them to gather, and the Indians grew and multiplied as a people, and gave their thanks to the Creator. When we were created we were given our ground to live on, and from that time these were our rights.

This is all true. Our mothers gathered berries; our fathers
fished and killed game. These words are ours and they are true. It
matters not how long we live, we cannot change these thoughts. This
land was ours, and our strength and our blood is from the fish and
the game, the roots and the berries. These are the essence of our
life. We were not brought here from a foreign country; we did not
come here. We were put here by the Creator. The Creator did not
plan the Indian to plow up the fields or to live as the White Man.
We had no cattle, no hogs, no grain - just berries and roots, and

fish and game. We never thought we would be troubled about these
things. Whenever the seasons opened we raised our hearts in thanks
to the Creator for his bounty that this food was given us.

When we came into the world, we came from a woman, our Mother.
She, before we were born, saved rabbit skins for us, and when we
came into the world she placed us in a skin. That was our dress. She
fed and cared for us. This country was like our Mother. Here our
fathers were born. Here we were born. It provided us with food and
cared for us. This country was like our Mothers; we did not want to
leave it. We never saw a better country. We are satisfied. It was
Indian country long before the White Man came. We were poor Indians,
but we were content to stay here in our country. Here were good roots;
the camas, the couse, the bitterroot. Here many salmon came; came in
the spring and again came when the grass was dry. Here the game, the
deer and the birds multiplied. Here the good sun shone brightly, and
the trails led to our friends the Flatheads and the Nez Perces, and
across the mountains to the buffalo grounds. This country God gave
to our fathers. Our game food God placed upon this land for our
fathers to eat. God provided here for our fathers, the Indians, their
food in season; the game, the berries, the roots and the fish. God
gave to the Indians here, all they needed; God gave us here all we
desired, all we needed. Therefore, we believe that we the Indians
were favored of God; and according to this understanding and our view
of things we regard the White Man as thus beneath us, in creation and
in standing before God.

We thought of our Maker and prayed hard. In the morning our
fathers had their prayers and asked God to give them pure water
from heaven that the grass might grow. They asked for pure water
so that nothing unclean would be in them; also that they would be
provided with plenty to eat.

Our fathers taught us to pray that way. Our fathers taught us
to be kind to little children, to be kind to one another, to be
friends upon our lands and to have strong hearts. Their words were
true and like to the light. We are telling you the truth. Now you
will understand; that is something you didn't understand before.
We will tell you of our fathers. Our fathers were great in the days
gone by, and their past will last forever and forever. Our fathers
did not have books. Our fathers did not need books. The Indian did
not write down his words on paper, or in a book, and then place his
words on a shelf to be covered with dust, forgotten, and unknown to
his children. The Indian wrote his words, his promises in his memory;
in his children's memory, and in the memory of his children's children.
Our father lived here in happiness. They had hearts that were strong;
they regarded them the same as a mountain. Our fathers taught us never

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children got their eyes on our ground and they coveted it. When they
saw this country of ours they liked it. They did not care for the
poor Indians. They wanted our country and they put their feet in our
very tracks. When you came we welcomed you. You did not ask for
what was ours. You took what was ours. You fenced our trails; you
took our gardens; you took away our homes by force; you plowed up our
fathers' graves; you killed our game. Had it not been for our fathers;
had it not been for the teachings of our fathers, of our priests,
had it not been that our hearts were big, the white people would
not have been so plentiful here, for the Indians have strong hearts
like the mountains. Now you white people have grown up on our
country, and are rich in everything. You have banks, railroads,
farming, cattle, business, stores and everything. Our fathers told
us to be good, to do right; did you do right to the Indians? You
have taken all that we had; what have you given us?

Our fathers taught us water was the only thing we should drink;
water was the only thing we had to drink. Your fire water the Indi-
ans did not make. The Indians did not have fire water. Your fire
water makes men into beasts. You knew that your fire water even
kills you, yet you gave it to the Indian, you white people. You
made Indians into beasts with fire water; you killed Indians with
fire water. No Indian ever made firewater. You had bad diseases
and sicknesses that God had not given to or meant for the Indians,
his children. You inflicted us with them; you killed us with them.
You white people stole and debauched our women, our wives, our
sisters, our daughters, and when you were done with them you sent
them back to our teepees with their half white children for us to
support; we from whom you had taken everything. You wanted our
land; you took it from us. You have killed our game; you have de-
stroied our fisheries; our great fishery at the Kettle Falls where
when we were young, all the tribes gathered and we gave fish to all
who came; even to the tribes east of the mountains. You have plowed
up and destroyed our camas and couse grounds and our berry fields.
You have trampled over the graves of our fathers.

We have sat broken hearted because of what you did; we have
sat with empty bellies, and watched you while our children cried.
Watched you and your children enjoy that which you took from us.
That which you took from us and have not paid us for. We are men.
Men with different skins than yours, different ways than yours; but
we are men. We did not fight you. We are men with strong hearts,
hearts like mountains. We are told it was wrong to fight. We
watched you.

You put your laws upon us. Your laws say that we men are
children, and that we cannot manage the little that you left to us.
By your laws you say that we are but children; that we have not

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minds, that we cannot do as we wish with what is ours - that little
that you have not yet taken from us. That we cannot ask you to pay
us for what you owe us, unless we, your children, first ask and get
consent from your great council of Congress. After many years, many
long years, your council of Congress this Spring voted us Indians
that consent. Your Council of Congress said that we Indians could
ask you in your Court of Claims to pay us what is right for you to
pay for that you took from us.

We are now told that you, the President, have said that we
should have asked you to pay us in that Court before; that our
claims are too old - that we have waited too long. We have waited
long; we have waited very long. We cannot ask you to pay, only
when your Council of Congress says we may. When did Congress say
we could ask? Our fathers told us to pay our debts; to pay our old
debts; to pay all our debts. Our fathers did not tell us we need
not pay the old debts; our fathers told us if they could not pay
their debts then, we, their children must pay them, or our children's
children, else we and our children and our fathers are disgraced.

We are broken hearted because we are treated as children. We
wait to know about our claims; we have waited very long. We ask
you to now treat us as men; to deal with us as men. Do so now. Make
glad our hearts; make whole the broken promises of Stevens.

About this land it all belonged to the Indians. You were more
numerous than we; as numerous as are all the ants in all the ant
hills. You were stronger than we. You put your feet in all our
tracks. You crowded us out. You took our land away. We were sorry.
Our hearts were heavy. They are yet heavy. We never started to of-
fend the whites, but they have continually done wrong towards us.
We never gave to you; we never sold our lands to you; we have never
agreed on a treaty. We have never given you any writing for these
lands. We were willing to be big hearted towards you; we would have
selected the best of our lands and reserved our homes and the graves
of our fathers, and we would have been liberal with you, so that the
poor white men who had no lands and were hungry for Indian lands
might settle on what was left of our lands. We so often told your
commissioners.

You took our lands from us. Without our consent, wholly with-
out consulting us, General Grant, the President, selected some of
our lands; not our homes, not our best lands, not where our fathers
were buried, but some of the poor lands, mostly rocks and mountains,
for a reservation for us. We could not believe that President Grant
gave us that land; we could not believe that he wanted the Indians
put on rocks and mountains. We did not select those lands. We were
not consulted. We did not consent to go on those lands. We had

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other lands; good lands. We then lived on those lands. We cultivated them. Our fathers were buried on those lands. There we wanted to live. But the white man wanted those same lands; wanted them because they were good lands, the best lands. The white men did not want the rocks and mountains where the President said we should have a reservation. The white men crowded us out. They threatened us. They seized our lands and improvements; they threatened us. The Indian Agents you sent to us told us we had to move from our homes to that Reservation that the President had selected. You sent your soldiers among us. We did not fight you. Our priests taught us it was wrong to steal; that it was wrong to fight. We did not fight. We obeyed you. We left our homes. We left the graves of our fathers. We left with heavy hearts and we went on those poor rocky lands that you left to us as a Reservation; the poor lands that the White Men did not want. We went unwillingly.

You had told us that our lands and rights would not be taken from us without our consent. We believed you. We trusted you. You said you were our friend and protector. Our lands were taken from us without our consent. The great chief, Governor Isaac I. Stevens, who first came among us and who held councils with us said that he was our friend; that whatever was done about our lands would be done by talking and agreeing, both sides being satisfied. He said that our rights were our rights; that we would not be deprived of them, and that our lands should not be taken away from us without our consent. We spoke with one tongue. He spoke for you. We, the poor ignorant Indians believed him. He went away to the great war you had, long long ago. We are told he was killed in battle. Had he lived we believe he would have kept his words unbroken. His words are broken words. The Indian Agents, the Commissioners, and other big men that you sent to us for many years after that handed you the broken words of Stevens. They told you that you had no right to our lands; told you that our lands had not been given to you; told you that no agreement had been made between us; told you that you had not bought our lands; that you had not paid for them; told you that our Indian title to our lands was not wiped out.

When these Agents, these Commissioners, these Big Men spoke thus to us and to you, you had other agents surveying our lands; you were inviting white men to settle upon them; you were giving them away to the railroads, to the State, to the Schools and Colleges, to whoever wanted them until now all the Indian lands, that you made free lands are gone. All our lands you have given away, and you did not own them; you did not buy them from us; you have not paid us for them.

We never gave you what you took. These lands were taken away from us by you - our friend, our protector, our guardian. These lands were not taken from us in war, we never fought you, we were always your friend. What you took was ours, so claimed by us, so recognized by our neighbors, so recognized by you; you have never paid us for what you took.

On this land of ours your children have built great towns; over
it they have run railroads; from the belly of the earth they have dug
our silver, gold, lead and copper. They have cut down and used the
great forests that grew on our hills, they have built great dams across
our salmon streams and harnessed the lightning to do their work. They
have made farms and orchards out of our root fields and our hunting
grounds. Your people have multiplied and grown rich on our lands;
these lands that you, our friend, took from us without our consent;
these lands that you have never paid us for.

You are our guardian. You govern us by your laws. We cannot
employ attorneys without your consent. We cannot act without your
consent. By your laws we cannot urge a claim against you without
your consent; we cannot ask you for justice in your own courts, un-
less you first made a law granting us that right.

The first time you spoke to us Indians about our lands was in
the day of our fathers, when we were children or infants in our
Mothers arms, you were yet talking to us about our lands and our
rights when we were young men. We have talked ever since. Our hair
is now gray and we are becoming old, some of us are now very old, and
we will see but few winters. We are old and we have not long to wait
here. We would like to have this matter settled before we meet our
fathers; before we meet Governor Isaac I. Stevens. We do not want to
tell them that Stevens' promises, that your promises are yet broken;
that the Indian lands were taken for the whites without the consent of
the Indians; that the whites have multiplied and grown rich on the
Indian lands; and that the poor Indians from whom they were taken
without consent, without agreement, without treaty, have never been
settled with or paid for the lands taken from them.

After many years we secured your consent to employ a lawyer,
familiar with your customs, to present our claim.

The sub chiefs in the two great councils of Congress made a law
that our claims should, with your consent, be submitted to and heard
by your Court of Claims. This proposed law was designated as H. R.
9160. It was submitted to you, you did NOT approve it, and unless
you approve the law, the poor Indian cannot go into your courts;
cannot secure justice.

We are told that you, the President have said that our claims
are too old. Who made them old; who delayed the settlement? We are
your children; we are your wards; we can do nothing without your con-
sent. We have been - we are now helpless unless you act. We cannot
bring suit against you in your courts. If settlement with us has
been delayed, it has been due to your own fault. It is not the fault

7

of the poor, ignorant, helpless Indian. Will you take advantage of
your own fault? Will you say, I delayed a long time settling with
my children; now because I delayed so long I will not settle with
them at all? An Indian does not so pay his debt. If he cannot pay
it his children pay it. We cannot believe, that you, the President,
meant to take advantage of the poor Indian, and refuse to pay him
because of your own delay.

We have also been told that you have said that our claim is too
large. We have never put any price on our lands, or on the rights
you took away from us without our consent. All we have asked, all
we now ask is that the matter be settled; that you permit your Court
of Claims to decide whatever it is just for you to pay us. Are you
not willing to pay that; are you not willing to pay whatever you
justly owe; whether it is big or little? We are told that you are
the head of the wealthiest nation in the whole world; that the United
States is a benevolent nation, that has given hundreds of thousands
of dollars - great sums that the poor Indian cannot comprehend, to
the poor people across the ocean in the countries where the great
world war was fought, and where our own sons fought, bled and died,
fighting shoulder to shoulder with your own sons. Whatever your courts
may decide and fix upon as the amount justly due us, for the lands and
rights taken from us will be as but a leaf from the great tree of your
wealth; it will be but as a small twig from the branch that you broke
off and gave away. Is not the heart that gives away big enough to
move you to pay the just debt, be it little or big, that you owe to us
poor Indians?

An Indian pays his debts before he gives a potlatch.

We have studied our situation. We have watched you. We are
wise with the wisdom of our fathers. We know that the Indian as an
Indian must cease. We see that the day of the Indian has passed; the
Sun set on the old Indian life when you killed our game, destroyed
our fisheries, and took away our lands. We now know that the Indians
if they continue to exist must become White Men in their manner of
living.

We have some of us read your history. We learn that it has
taken two thousand years to change the Helvatians of France; the
Germanians and the Goths, and the Britons and Picts of England, into
you white people of today. We know that the Indian cannot be wholly
changed into White Men in a generation or in the short time. We know
that the mind and way of thinking has to be changed and we know that
the bodies of the Indians have to be changed. We who lived by fish-
ing and the chase must learn to work as White Men and our muscles and
the bones of our bodies must change. Our bellies must accept and be

8

content with strange foods; our skins must grow accustomed to our wearing the White Men's clothes and our lungs that only know the clean free air must become accustomed to the air of closed houses. While we change into White Men we must suffer in body and in spirit. We must fight in our bodies all your diseases which we as Indians never knew, and for which our Indian medicines are not good. Our women must learn to have children and to keep them well under new and changed conditions so that they grow into strong men and women.

We see you White Men work and gather money and property together for your children. We have children. We love these children. We think of our children's children who will be White Men and Women like yourselves - but with red skins - less red than ours. What was ours, what our fathers left to us you have taken. Taken without our consent, for that we want pay. This is our right. This is our need. We want this that we may care for ourselves and our children while the Indian changes into a White Man. That we may care for and make provision for our children, just as you White Men do. This is our right.

Now about our Claims. We want them settled now while we yet live. When they are settled we can continue changing into White Men and they will be forgotten. Now these claims are in our minds. We keep thinking about them.

Why do you not settle this matter, why do you not let your Court of Claims decide what is justly due to us?

It is not because of lack of time for the life time of man has passed since we first began to talk about our land. It is not because you do not know of our claims and of their right and justness, for commencing with Governor Stevens, your own Commissioners and Agents have often told you of our rights, and have often written them out in the records of your doings that you keep in your great offices at Washington. Why do you not settle this matter? We are very old. The lands, the rights you took were OURS. We have never agreed that you should have them. They were valuable, valuable to us and more valuable to you. You took them. You have never settled with us for them. We want nothing but what is just, nothing but what your own Court of Claims may freely say is ours. What are you going to do?

We have spoken.

That is all.

We will tell you how we regard the white man according to our view of things. We will speak the truth; we will speak plain so that you can understand us. Those that speak the truth are not afraid to speak plain; those who speak the truth do not need to speak with a forked tongue. We speak the truth. You do not understand the Indians. People at large do not understand the Indians, and poke fun at them every day. They always seem to have something to say about the Indians and don't understand them - even at the odor of the Indian you turn up your nose. We smell of the clean wood fire, of the woods. Now, we do not like the smell of the white people. We don't like the ways of the white people, but we have said nothing about that.

2

Our fathers taught us to pray that way. Our fathers taught us to be kind to little children, to be kind to one another, to be friends upon our lands and to have strong hearts. Their words were true and like to the light. We are telling you the truth. Now you will understand; that is something you didn't understand before. We will tell you of our fathers. Our fathers were great in the days gone by, and their past will last forever and forever. Our fathers did not have books. Our fathers did not need books. The Indian did not write down his words on paper, or in a book, and then place his words on a shelf to be covered with dust, forgotten, and unknown to his children. The Indian wrote his words, his promises in his memory; in his children's memory, and in the memory of his children's children. Our father lived here in happiness. They had hearts that were strong; they regarded them the same as a mountain. Our fathers taught us never to kill things foolishly, but to take for use only, to kill only for food. Our fathers allowed the white man to come as our fathers were good and kind to everyone. Our Maker, the Great God, told us when everything was full grown and had its full growth; when the birds'

4

Our fathers taught us water was the only thing we should drink;
water was the only thing we had to drink. Your fire water the Indi-
ans did not make. The Indians did not have fire water. Your fire
water makes men into beasts. You knew that your fire water even
kills you, yet you gave it to the Indian, you white people. You
made Indians into beasts with fire water; you killed Indians with
fire water. No Indian ever made firewater. You had bad diseases
and sicknesses that God had not given to or meant for the Indians,
his children. You inflicted us with them; you killed us with them.
You white people stole and debauched our women, our wives, our
sisters, our daughters, and when you were done with them you sent
them back to our teepees with their half white children for us to
support; we from whom you had taken everything. You wanted our
land; you took it from us. You have killed our game; you have de-
estroyed our fisheries; our great fishery at the Kettle Falls where

when we were young, all the tribes gathered and we gave fish to all who came; even to the tribes east of the mountains. You have plowed up and destroyed our canoes and couse grounds and our berry fields. You have trampled over the graves of our fathers.

We have sat broken hearted because of what you did; we have sat with empty bellies, and watched you while our children cried. Watched you and your children enjoy that which you took from us. That which you took from us and have not paid us for. We are men. Men with different skins than you, different ways than yours; but we are men. We did not fight you. We are men with strong hearts, hearts like mountains. We are told it was wrong to fight. We watched you.

You put your laws upon us. Your laws say that we men are children, and that we cannot manage the little that you left to us. By your laws you say that we are but children; that we have not minds, that we cannot do as we wish with what is ours - that little that you have not yet taken from us. That we cannot ask you to pay us for what you owe us, unless we, your children, first ask and get consent from your great council of Congress. After many years, many long years, your council of Congress this Spring voted us Indians that consent. Your Council of Congress said that we Indians could ask you in your Court of Claims to pay us what is right for you to pay for that you took from us.

8

that it was wrong to fight. We did not fight. We obeyed you. We left
our homes. We left the graves of our fathers. We left with heavy
hearts and we went on those poor rocky lands that you left to us as
a Reservation; the poor lands that the white Men did not want. We went
unwillingly.

11

We are told that you, the President have said that our claims are too old. Who made them old; who delayed the settlement? We are your children; we are your wards; we can do nothing without your consent. We have been - we are now helpless unless you act. We cannot bring suit against you in your courts. If settlement with us has been delayed, it has been due to your own fault. It is not the fault of the poor, ignorant, helpless Indian. Will you take advantage of your own fault? Will you say, I delayed a long time settling with my children; now because I delayed so long I will not settle with them at all? An Indian does not so pay his debt. If he cannot pay it his children pay it. We cannot believe, that you, the President, meant to take advantage of the poor Indian, and refuse to pay him because of your own delay.

14

We have some of us read your history. We learn that it has
taken two thousand years to change the Helvaticians of France; the

15

our children, just as you white men do. This is our right.

Now about our claims. We want them settled now while we yet live. When they are settled we can continue changing into white men and they will be forgotten. Now these claims are in our minds. We keep thinking about them.

That is all.

17

THE DISORDERLY CONDUCT OF WORDS*

Hugh and Patricia were an attractive couple on the permanent plateau of prosperity, but Hugh had much more money than was good for them. They drifted apart and in the spring of 1929 came the divorce. Hugh placed a large block of government bonds in the hands of trustees. The settlement directed the trustee to pay the income to Patricia for life and the principal to her children, but "if she remarries" then the income is to go to the children at once. Next October Hugh's remaining investments suddenly shrank. As he was walking along Fifth Avenue feeling very blue, whom should he meet but Patricia in a new hat and more charming than ever. At her suggestion they went to her apartment for tea, and he soon found himself pouring his troubles into her sympathetic ears. Tea prolonged itself into dinner and dinner was succeeded by breakfast. After visiting the City Hall, Hugh and Patricia departed for a second honeymoon. While they were disporting on the beach at Waikiki the market crashed again. Whatever Hugh had left was wiped out, but Patricia said, "Never mind, darling, we can live on what you generously gave me while you are getting a fresh start." Soon came the expected long envelope from the trustees, but inside instead of the usual check was a formal letter stating that since she had "remarried" the trustees were now obligated to pay the income from the bonds to her children. And so, the story goes, Hugh and Patricia hurried home to be supported by their boys and girls.

This unreported case is a fair example of the problems presented by law and language combined. Observe that the difficulty is caused, not by any long commaless legal jargon, but by one plain word—"remarries." The trustees were merely echoing the joyous outcries of the couple's friends—"Have you heard the latest—Patricia and Hugh have remarried"!

Yet I have a strong guess that a court would not uphold the trustees' interpretation of "remarries." Why? Possibly the judge would declare: "The parties did not intend 'remarries' to include this even-

* This article has been adapted from an address delivered to the Judicial Section of the New York State Bar Association on January 27, 1940.

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tuality." Yet, when the spouses signed the settlement on the bitter eve of divorce, nothing was farther from their thoughts than being reunited. The truth is, the only person who had any intention about not applying "remarries" to the present situation is the judge himself. Whither should the judge go for help? That is the question to which I shall keep returning.

Words are the principal tools of lawyers and judges, whether we like it or not. They are to us what the scalpel and insulin are to the doctor, or a theodolite and sliderule to the civil engineer. So we need to know more about their imperfections. Several books have appeared recently about a new science of language called Semantics. Best known in the United States are *The Meaning of Meaning* (fourth edition, 1936), a technical and difficult work by C. K. Ogden and I. A. Richards, and *The Tyranny of Words* (1938), a popular discussion by Stuart Chase. I have gone to these for help, to see whether they supplement the efforts of judges and lawbooks to solve problems of legal interpretation.

I

The first lesson I have learned is, that language is not used solely for the communication of thought. That purpose is uppermost in our minds when we write opinions or briefs or law review articles, and hence we lawyers easily forget that words are frequently employed with quite a different object—to make somebody do something. Ogden and Richards stress this emotive function of language as distinguished from its communicative function; and illustrate this by printing Malinowski's observations on the speech of children and savages.¹ They do not employ language, he says, as a condensed piece of reflection and a record of fact or thought, as does the author of a book or inscription. With them, language functions as a link in concerted human activity, as a piece of human behavior. It is a mode of action and not an instrument of reflection. For example, among primitive people:

> A word, signifying an important utensil, is used in action, not to comment on its nature or reflect on its properties, but to make [the utensil] appear, be handed over to the speaker, or to direct another man to its proper use.

It takes only a little thought for us to realize that among civilized adults language is largely employed for the same emotive purpose. One instance will suffice—the young wife who complained, “When I ask Charles if he loves me, he acts as if I were asking for information.”

1. Malinowski, supplement to OGDEN & RICHARDS, MEANING OF MEANING (4th ed. 1936) 309-321 *passim*.

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What bearing has this emotive function on law? More than we like to admit. The clerk's prelude to the session of court,—"Oyez! oyez! oyez!"—aims to produce an attitude of seriousness and wrench us out of the careless moods of everyday life. The lawyer's address to a jury is only in part an attempt to organize the evidence clearly. In large measure, he seeks to evoke emotion and action, namely, a favorable verdict. Nor can we say that the emotive function is always absent from the lawyer's argument before an appellate court. When Mr. Joseph Choate told the United States Supreme Court in 1895 that a 2 per cent income tax had "scattered to the winds the great fundamental principle of private property,"² he was not aiming to give accurate information but to create judicial hostility to the statute. Indeed, some experienced advisers consider that the main purpose of appellate argument is to make the judges want to decide your way. It is even said that the citation of authorities is a solemn pretext. My own view is quite different, but here too action is the end desired—a decision for one's client—and not merely the transmission of clear ideas.

When one gets into this vein, he discovers the emotive function operating in almost all speech and writing. The communication of facts and thoughts seems never completely separated from the desire to make somebody do something or feel somehow. Nothing appears sterilized from emotion except a quitclaim release. Even when the informative purpose is very strong as in a law-book, the author wants to write so that a publisher will print it and lawyers will buy it. Although a law review article gets no compensation, it may produce academic promotion or esteem among the elect. Most audacious of all is the idea that a judicial opinion is more than pure thought. Does not the judge hope thereby to win over a hesitating colleague, to reconcile the losers to their fate, and perhaps to make courts in other states eager to follow his views?

Why worry? It's one of the things language is for. Probably the distinction between the communicative and emotive functions is only a matter of degree. The transmission of information and the creation of an attitude in the listener are dual purposes in most speech, though in varying proportions. Because we believe reason to be our best guide, we must exert ourselves in legal expression to make our thoughts fit things and our words fit our thoughts, to keep down the emotional element, and above all to pick and choose among possible emotions. The evocation of a sense of fairness may be within the emotive function as truly as the stimulation of hatred and greed, but it is a much more legitimate aim.

2. See Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 534 (1895).

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However, our major concern as lawyers is with the communicative function of language, to which my remaining observations will be devoted. My next main point is that *The Meaning of Meaning* gives us much help in understanding the true relation between a word and the object for which the word stands. (I use "object" loosely to embrace persons and abstract ideas as well as tangible things; the semanticists use instead the technical word "referent").

To start with, the word is not the same as what it points to. Obvious as this statement may seem, the contrary belief is constantly cropping up; that words have existence and power, that they are equivalent to the things and persons they denote, or nearly so. It is something like the relation assumed by primitive or superstitious minds between the god and the image. A Harvard professor fell into conversation with a peasant in the Campagna, who asserted defiantly that there was no God. "I suppose you don't believe in the Devil either." Quick as a flash the peasant crossed himself and looked behind him with terror.

Although this identification of the word with the object is avoided by more sophisticated minds, they often slip just one peg down into the deeply-rooted notion that the word inevitably and unalterably belongs to a particular thing or person. A name is like a label chained around the object by God's order, which nobody must presume to detect. "And whatsoever Adam called every living creature, that was the name thereof."

An Englishman was lunching in a Paris restaurant. He knew no French, the waiter little English. They engaged in the friendly task of giving names in their respective languages to things at which the Englishman pointed. Eventually he pointed at the bread. "Pain," said the waiter; and the Englishman burst out laughing. "What you call it, M'sieur?" "Bread"—and the waiter laughed. At this the Englishman got angry. "M'sieur," expostulated the waiter, "you laugh when I say 'Pain,' I laugh when you say 'Bread'." Back came the Englishman, "But it is bread, you know."

Lawyers and judges are highly susceptible to this notion of an indissoluble link between the word and the thing. A sense of the inherent potency of words is natural with us. Words are the effective force in the legal world. In statutes, they result in heavy fines, long imprisonment or even death. In contracts, deeds, or wills, they transfer large amounts of property. Hence the persistent feeling in our profession that the right words must be used. You must in the old days say "A and his heirs" to give a fee, not "A and his descendants" or "A and his successors."

Nor can we flatter ourselves that we have wholly outgrown this

tendency to believe that a word points to this object and only this, and that no other word can point to it. Look at a case in the House of Lords in 1914.³ A testator who had spent all his life in Scotland bequeathed £500 to "The National Society for the Prevention of Cruelty to Children." These words corresponded to the charter name of a London society, which did no work in Scotland and of which the testator had never heard. Near his home was a branch office of The Scottish National Society for the Prevention of Cruelty to Children, whose activities he knew. Which charity should get the £500? The Scotch courts awarded the bequest to the Scottish society, as the testator pretty clearly intended. Yet the remote charity in London got the money, because the Law Lords said that "he had by name designated" the London society; that it was "the possessor of the name mentioned in the will." Lord Dunedin declared: "... the question for a Court of law is, ... what is the meaning of the words used?"

Here the Law Lords clung to the notion that the Scottish society had only one name, which the testator must use to reach that society just as Ali Baba couldn't open the door without saying "Open Sesame". Doubtless, a corporation should use its corporate name in formal documents for conveying land, etc., but a moment's reflection makes it clear that the corporation may have other names too. Think of the names we give our pet charities in conversation and letters. We call government corporations R. F. C., H. O. L. C., and T. V. A. We specify railroads as the Big Four and the Soo. I work for an institution whose corporate name is the President and Fellows of Harvard College, but is that its only name? Most of the time people call it Harvard College, Harvard University, or Harvard. My guess is that many Scotchmen used the same name as the testator for the Scottish society, and that the Scotch courts were sensible in recognizing that fact.

Then, when the House of Lords said that its award to the London society was following "the meaning of the words," what did "meaning" mean? Not the intention of the testator, not common usage, not the opinion of the average reasonable Scotchman under the circumstances. Many American courts would speak of "the single plain meaning" of the words, and reach a similar result defeating the testator's intention.⁴

The need for analysis of this word "meaning" is obvious. Ogden and Richards constantly insist that words are only symbols of objects. These symbols do not arise from the nature of the objects, but are

3. National Society v. Scottish Nat. Soc., [1915] A. C. 207.

4. E.g., Tucker v. Seaman's Aid Soc., 7 Metc. 188 (Mass. 1843); See Mann v. Mann, 1 Johns. Ch. 231, 236 (N. Y. 1814). Cf. Thomas v. Stevens, 4 Johns. Ch. 607 (N. Y. 1820).

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created by human beings for purposes of convenience, just like buoys and traffic-signals. So far there is nothing new. Wigmore, for example, has an admirable presentation of the symbolic quality of words.⁶ But now comes a big contribution from Ogden and Richards. The relation of the word to the object is only indirect. Between these two factors, a third factor always intervenes, the thought of some person. Thus the object causes a thought in the mind of a speaker or writer, and he uses a word to express his thought. In listening or reading, the process is reversed. The word brings about a thought which refers to the object. The authors diagram their theory by a triangle. The word and the object are at the two base angles; the thought is at the apex. We never go directly across the base of the triangle, from word to object or *vice versa*, but always travel the long way around through somebody's thought at the top of the triangle. Of course, we telescope this process in popular parlance by saying that the word stands for the object, but in careful analysis we must always remember the whole series: object to thought to word, or word to thought to object.

The value of this analysis to law can be realized only after a full consideration of Ogden and Richard's book. I shall speak of only one application, to the problems of Mistake. Since the relation between the word and the object involves two steps, two different kinds of mistakes may occur. First, the thought may not adequately represent the object, as when parties buy and sell a racehorse which is in fact dead. This type of mistake I call Error. Second, the word may not correctly express the thought. For example, a deed describes the "east" half of Blackacre when the parties intended the west half to be conveyed. This I call a Mistake of Expression. This distinction is important, because the usual remedy for Error is to call the bargain off (rescission), and for Mistake of Expression is to remould the writing to the actual intention (reformation).

Another big contribution of Ogden and Richards is their demonstration that this word "meaning," which we lawyers and judges use so blithely as if it were a clear path out of our tangles, is really a network of paths in which we are likely to get worse lost than ever. The authors list sixteen different main definitions of "meaning" and nine subvariations, all derived from reputable sources. I mention only a few of these, as apt to occur in law: the other words annexed to a word in the dictionary; what the user of the word intends to be understood from it by the listener or reader (intention of the testator, etc.); that to which the user of the word actually refers; that to which the user of the word ought to be referring (this is common usage, the view held by Mr. Jus-

5. 9 WIGMORE, TREATISE ON EVIDENCE (3d ed. 1940) § 2459.

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tice Holmes, who insists on "the ordinary meaning of the language in the mouth of a normal speaker situated as the party using the language was situated");⁶ that to which the interpreter of a word refers; that to which the interpreter believes himself to be referring; that to which the interpreter of a word believes the user to be referring.

When a lawyer or judge speaks of "the meaning of the word used," he needs to know clearly which of these numerous definitions is applicable. Sometimes a case on the interpretation of a will or contract or statute shows the judge employing "meaning" in three or four different senses and sliding unconsciously from one sense to another in a single sentence of his opinion.

I have spoken of two lessons for law to be gained from the writers on Semantics—first, the varied functions of language; second, the analysis of the relation between the word and the object. We now come to a third lesson, that words are very imperfect means of communication. A word doesn't stay put. It wabbles and slides around. This is illustrated by the migrations of "meaning," just discussed. Hundreds of examples arise in daily life. We pay dues to a golf-club and use a golf-club to hit a ball. Then we invite our fair partner to a ball at the clubhouse.

When the objects for which a single word stands are thus widely separated, no harm results except an occasional excruciating pun, from which even the law is not free. A Massachusetts doctor charged with procuring an abortion argued to the Supreme Judicial Court of Massachusetts that he was protected by the Statute of Frauds—no one should be held for the debt, default or "miscarriage of another" unless evidenced by some memorandum in writing.

However, when the same word signifies two ideas which are close to each other or overlap, confusion and obscurity are probable. The writer may fall into the terrible crime called the utraquistic subterfuge, of using the word in both its senses during the same discussion. This is said to be a frequent crime among philosophers. For example, "knowledge" may be used for both the content of what is known and the process of knowing. Such an error occasionally creeps into judicial opinions. For example, a case involves a serious misstatement of fact, but it is not clear that the speaker knew of the falsehood or intended to deceive. The judge begins by calling innocent misrepresentation "constructive fraud." After a while "constructive" drops out. Later on he cites a number of cases of intentional misrepresentations which stress the wickedness of "fraud." "Fraud" is an emotive as well as a communica-

6. Violette v. Rice, 173 Mass. 82 (1899). To the same effect is Holmes, *The Theory of Legal Interpretation* (1899) 12 HARV. L. REV. 417.

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tive word, and the judge begins to warm up. Before long the speaker's knowledge of the falsehood is treated as irrelevant, and the judge concludes that an innocent misstatement should be heavily penalized because "fraud" is a vicious quality.

If words were perfect instruments of communication, such difficulties could be avoided. Ogden and Richards lay down as the first requirement of a satisfactory system of symbols, "One symbol stands for one and only one referent." ("Referent," as already stated, is their word for my "object,"—what one's thought refers to). Unfortunately, this requirement can only rarely be fulfilled. In mathematics, we have a specially devised system of symbols of such a character; *pi* always means the same thing. The natural sciences approximate this ideal. Our colonial ancestors used "robin" for an English relative of the sparrow and an American relative of the thrush, but an ornithologist calls each bird by a different Latin name. But it would be impossible to impose such precision on ordinary language, for it would go to pieces in the wear and tear of everyday intercourse. "Thus it constantly happens that one word has to serve functions for which a hundred would not be too many." Some attempts to introduce a specially devised symbolism into law have not been successful, as we shall see later. For the most part we must be content to let words remain imperfect symbols.

It is some consolation to realize that other kinds of symbols often possess the same difficulty. Stuart Chase would have us go back to gestures as far more accurate than words, but has he never been perplexed by the ambiguity of the arm motions of a traffic policeman? A red light symbolizes the rear of an automobile, a pile of dirt, a railway crossing, a fire alarm box, the port side of a steamer, and (on a light-house) the presence of rocks and shoals. Probably nobody has ever confused the port light of a boat with a moving automobile, but a lowered railway gate has been mistaken for such an automobile with disastrous consequences. Ordinarily we are able to attach the proper significance to the red light because of the environment, just as a word which is in itself ambiguous can often be understood in the light of the context and surrounding circumstances. But this is not always possible.

We find abundant examples in law of the trouble caused by a word which is capable of standing for two or more different objects, like "remarries" in the divorce settlement. Are canary birds subject to a tariff on "live animals"?⁷ A life insurance policy makes the company not liable for death while "participating in aeronautics"; does the phrase

7. Reiche v. Smythe, 13 Wall. 162 (U. S. 1871).

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apply when the insured is killed while a passenger in a commercial plane which crashes?⁸ This quality of words was described by Mr. Justice Holmes in the first *Stock Dividend* case, where he made it plain that "income" in a revenue act did not necessarily mean exactly the same as "income" in the Sixteenth Amendment:

> A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.⁹

Less familiar legal examples appear outside documents and cases on interpretation. Thus we very frequently say that a particular decision is "wrong" or "unsound." When we do this, it is well to bring ourselves up with a round turn and ask ourselves what the word signifies. Conceivably it means: (1) The decision offends our sense of justice. (2) It does not fit into the logical symmetry of earlier cases. (3) It is likely to produce undesirable social consequences. (4) It is likely to be overruled or disregarded in later cases. (5) It has already been overruled or disregarded by courts. (6) Our client lost. The method just adopted of thinking up conceivable meanings of a doubtful word complies with a very useful piece of advice given by Ogden and Richards.¹⁰ When we have completed such a list, we may discover that the various senses have no common denominator and that the single word is a sort of ashcan into which many different kinds of objects have been thrown during the course of years.

Of late years lawyers have been urged to stop concentrating on metaphysical reasoning and devote more attention to collecting facts. A thirst has grown for all sorts of legal statistics. The best known instance is the lists which appear frequently in the newspapers of "crimes known to the police" in various large cities. These contain surprising conclusions. Thus in one year Philadelphia was stated to have only a quarter as many thefts for its size as Toronto and only a fifth of the thefts of Washington, D. C. Miami in another year reported three hundred times as many robberies per hundred thousand inhabitants as Lowell. Newark reported twenty-four times as many burglaries proportionately as New York.¹¹ This illustration shows how the elastic nature of words can easily render legal statistics almost valueless. Two items may not be comparable although they bear the same verbal label.

8. Note (1938) 23 CORN. L. Q. 335.

9. Towne v. Eisner, 245 U. S. 418, 425 (1918).

10. THE MEANING OF MEANING, 131.

11. 1 REPORTS OF NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT (Wickersham Commission), No. 3, *Report on Criminal Statistics* (1931) 39; Warner, *Crimes Known to Police* (1931) 45 HARV. L. REV. 307, 312.

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Thus "thefts" as reported by the police in two cities may have quite a different scope, because the legal definitions of the crime differ from state to state, e.g., in omitting or including temporary borrowings of automobiles by joy riders, because automobiles are reported as stolen merely to escape fines under parking regulations, or because some police faithfully list every offense sent in while others patriotically cut down the list to correspond to the number of arrests made in order to give a pleasing picture of activity. Plainly, before any inferences can be safely drawn from legal statistics, great care must be taken by somebody to insure that the standards of classification and the accuracy of reporting are approximately uniform. Utraquistic subterfuges may as easily occur in identical statistical headings as in judicial opinions and old-fashioned law-review articles.¹²

A fourth and final lesson is taken from a Polish exile Korzybski. This I call the hierarchical nature of words. All words are symbols, but some of them are much nearer than others to the five senses. Thus, at the bottom level we have "John Marshall," "Ford sedan No. 1,207,- 643" and "26 Broadway." On a higher level come generalized words for persons and things, like "judge," "automobile," "office-building." Above these are "men," "chattels," "real estate." Still higher come abstractions like "mankind" and "property." Some writers, especially Stuart Chase, stress the dangers that we run as we get up on the heights. The more abstract the word, the greater the risk that any proposition in which it is used will not be true of all the persons and things within the class denoted by the word, and the more liable we are to forget that at bottom we are talking about persons and things. An ardent advocate of female rights will assert that "Women are oppressed by men" regardless of several hen-pecked husbands she knows. With this inexactness of abstractions goes another danger, their emotional quality. Men are stirred to frenzy by words like "democracy," "un-American," "New Deal" without taking the trouble to specify to themselves the individual persons and practices which they purport to admire or hate.

Similar dangers exist in the legal use of abstractions. "Property" is a striking example. It includes a great range of things from my home to my interest in a free access to prospective customers and employees. Suppose that an official, acting under a statute, is compelling me to bargain with a union or alter my management of a holding company in which I have majority control. Because he is restricting my "property," I begin to feel and talk as indignantly as if I were turned

12. See Dr. F. G. Crookshank's account of the breakdown of English official classification of supposed different types of infantile paralysis, in supplement to THE MEANING OF MEANING, 347-354.

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out of my home or forbidden to cruise in my own sloop. Mr. Justice Holmes, who has given as much thought to the meaning of words as any American judge, recognized this danger in *Truax v. Corrigan*.¹³

Delusive exactness is a source of fallacy throughout the law. By calling a business "property" you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed.

Some kinds of property like a home or a savage's spear and canoe would be owned even though there were no courts or legislatures, under

> The good old rule, the simple plan,
> That they should take who have the power,
> And they should keep who can.

But an owner cannot control other kinds of property, like contracts and corporate shares and good will, just by fighting for them. He must have the help of legal process. What the law gave, it can to some extent take away. It can abridge or regulate or fail to protect such intangible property within wider limits than is permissible in the case of the immediate instruments of life.

However, it is one thing to say that abstractions must be used cautiously, and quite another to urge, that, unless they can be verified by the methods of the natural sciences, they must not be used at all. The higher ranges of the hierarchy of words are indeed dangerous, but so are high buildings and high voltages. Modern life would be hampered without these; and every department of intellectual activity including law would be slowed down almost to a standstill if we did not employ shorthand expressions to denote great masses of related facts.

As part of this attack on abstractions, widely sold books are persuading the lay public that "negligence," "good faith," "reasonable" and the very word "law" are weasel words which do not really serve to settle disputes. Precedents are marked for slaughter, for if universals are to be abandoned we should admit that we live in an atomistic world where one legal case lacks any significance for another legal case. The proposed substitute for "law" is very simple. Get the sort of judge "who can wisely decide situations in a real world, now, using whatever practical rules may be necessary." Man would be "willing to take his decision, if he were a good judge, without the ornament of citations."¹⁴

13. 257 U. S. 312, 343 (1921) (dissenting opinion). See also White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 19-20 (1908).

14. CHASE, TYRANNY OF WORDS (1938) 321, 327.

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As an antidote to this frequently held layman's ideal of leaving everything to the common sense of judges, we lawyers need to bestir ourselves and popularize numerous aspects of John Adams's principle of "a government of laws, not men." One can begin by pointing out that the substitute just described embodies abstractions far removed indeed from the five senses. When is a case "wisely" decided? Cynics say it is when your side wins. What rules are "practical"? What we agree with is apt to seem practical, and what we dislike theoretical. Who is the "good" judge? It depends on the point of view. Judge Jeffreys was a good judge to James II.

The evils of abolishing general phrases in law will become clearer to laymen if they be led to consider its effect upon the kind of law with which they are most familiar—criminal law. The substantive definitions of crime would disappear. For example, treason would not consist only "in levying war against the United States or in adhering to their enemies, giving them aid and comfort" and be further limited by centuries of judicial precedents. Instead, the government would be at liberty to imprison or execute anybody if a tribunal decided that he was an objectionable person or not sufficiently enthusiastic about the policies of the administration. Our law would be like that of Germany, where a man can be punished without having committed any defined crime, merely because his conduct is considered not to be "according to healthy public sentiment."¹⁵ Harold Laski tells a story about the Round Table Conference that met in London to draft the new Constitution of India. The Conference was at work on the Bill of Rights and had reached the provision that *habeas corpus* should not be suspended. One of the native princes asked what this clause signified. After listening to a lengthy explanation, he asked, "Do you mean I shan't be able to put a man in prison when I wish, except for committing some specific crime?" "That's exactly what it means." "Well," said the Maharajah, "I don't want anything like that in my dominions!"

Even if judges should give up their abstractions and swear never to create any more, the law will still be crowded with concepts imposed by statutes, like "restraint of trade" in the Sherman Act, "unfair methods of competition" and "unfair or deceptive acts or practices" in the Federal Trade Commission Act, "gifts in contemplation of death" and "income" in Tax Acts, "advocate the overthrow by force or violence of the Government" in the Deportation Act, and "obscene" in the Tariff and Postal Acts.

The need for general words is plainest to laymen in the many

15. See McIlwain, *Government by Law* (1936) 14 FOREIGN AFFAIRS 185.

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important statutes which are mainly enforced by government officials, so that it would be impossible to rely merely on the "common sense" of judges and juries. Examples are the Internal Revenue Acts, the Interstate Commerce Act, and the National Labor Relations Act. The standards laid down by such a statute for the officials to apply to ordinary citizens must be framed in pretty broad terms in order to embrace the varied situations which may arise and which cannot possibly be all foreseen so as to be listed by the legislature in concrete terms. The resulting lack of precision gives rise occasionally to amusing problems, whether hen's eggs are "bird's eggs" within the free list of a tariff act, or whether tomatoes are "vegetables" or "fruit" under a similar statute.¹⁶ These legal jokes, we are told, render the whole system of laws ridiculous. Of course, a few such borderline cases are bound to arise and prove nothing. Precision cannot be attained in the administrative process until its final stage—the ruling of an official on a given set of facts. Detailed statutory wording would fetter official action, while the total omission of prescribed standards from statutes would leave government employees free to deport and regulate and tax us and seize our property as they pleased. A citizen would soon come to understand all this, if there were more readable books on law, based on wisdom rather than wisecracks.

This long reply to the superficially tempting plan of dropping general concepts out of the administration of justice does not take the position that all such concepts are now satisfactory or that they are all wisely handled. Every sensible judge or lawyer or law teacher is well aware of the fact that these legal phrases are not accurate measures like the yardstick in the Bureau of Standards. They can more fairly be compared to a chart of colors, which is constructed to give some indication of the differences between scarlet and crimson, and so forth, in spite of the fact that its maker knows that every color shades by imperceptible degrees into every other. Furthermore, judges and law teachers should be constantly engaged in the task of making these phrases fit present conditions better. We need a big spring cleaning to see which terms embody useful principles like "good faith", and which are enough worn out to throw away like "malice" and "conclusive presumption." Finally, I shall be sorry if my argument sounds like a pharisaic belief that laymen have no right to question legal doctrines and practices. Surely the common man who feels the impact of law has the best of rights to point out its imperfections, and he can often call attention to matters which professional habit makes us overlook. We should be

16. Nix v. Heddon, 149 U. S. 304 (1893), ridiculed by ARNOLD, SYMBOLS OF GOVERNMENT (1935) 78.

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glad indeed to have the help of able economists and journalists in our task of improving and modernizing the concepts which have been handed down to us. But the fact that the houses in which we live happen to be ugly or inconvenient is no reason for tearing them down and sleeping in the woods.

II

Thus far I have talked of the help we men of law can get from the writers on Semantics. Now I want to speak briefly about the help they can get from us.

Our case-law provides a vast storehouse of examples of the imperfect symbolism of language. It offers four centuries of reflection by judges on the meaning of words, some of it very acute. Long before the problem of interpretation received systematic attention from non-legal writers, it was explored by such able lawyers as Hawkins, Holmes, Thayer, Wigmore, and Williston.¹⁷

There are strong practical reasons why the contributions of law to the problem of language are very carefully thought over. First, when a judge is confronted with a word whose meaning is not clear, he must force himself to understand it if this be possible. An ordinary listener could let the word slide by him as not worth bothering about, but the judge has to try and apply the word to real life. To use the terminology of Ogden and Richards, the judge must find referents (objects) for the verbal symbol. Secondly, a lawyer who is drafting an important document also acts under compulsion in just the opposite direction. He searches for words to fit objects. He must probe his client's mind to ascertain his wishes for all the contingencies that are likely to occur, and then do his best to put into the document a phrase which describes the persons or things the client desires—every one of them and no more. Furthermore, the lawyer must be sure that when the document later gets before the court, the judge will reverse the lawyer's process and go back from the phrase to those very persons and things. Thus the

17. WIGRAM, EXTRINSIC EVIDENCE IN AID OF THE INTERPRETATION OF WILLS (3d ed. 1840); Hawkins, *On the Principles of Legal Interpretation with Reference Especially to the Interpretation of Wills* (1860) 2 JURID. SOC. PAPERS 298, reprinted in THAYER, op. cit. infra, 577; Nichols, *On the Rules which Ought to Govern the Admission of Extrinsic Evidence in the Interpretation of Wills* (1860) 2 JURID. SOC. PAPERS 351; Elphirstone, *The Interpretation of Formal Documents* (1867) 3 JURID. SOC. PAPERS 251; THAYER, PRELIMINARY TREATISE ON EVIDENCE (1898) 390-483; Holmes, *The Theory of Legal Interpretation* (1899) 12 HARV. L. REV. 417; Phipson, *Extrinsic Evidence in Aid of Interpretation* (1904) 20 L. Q. REV. 245; 9 WIGMORE, TREATISE ON EVIDENCE (3d ed. 1940) §§ 2458-2478; 3 WILLISTON, TREATISE ON THE LAW OF CONTRACTS (1936) §§ 601-603. For recent collections of legal materials, see MORGAN AND MAGUIRE, CASES ON EVIDENCE (1934) 891-899; GARDNER, CASES ON CONTRACTS (1939) 211-250; LEACH, CASES ON FUTURE INTERESTS (1935).

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lawyers who wrote wills or contracts and the judges who interpreted them have acted under a very heavy responsibility.

At times lawyers have found common speech inadequate to their purposes, especially in dealing with real property and trusts, and have made some use of technical terms, which form "a specially devised symbolism," resembling so far as it goes the method employed by mathematicians and chemists in making up a language that is more accurate than regular English words.¹⁸ Unfortunately, in some of the situations that call for such special symbols, the client either writes the document himself or hires an incompetent lawyer, leaving it for others to struggle with the inadequate symbols drawn from everyday speech. "The jolly testatrix who makes her own will" supplies remunerative semantic investigations for the bar.

The fact that judicial insistence on technical language in such situations will often defeat the intention of the parties has prompted the courts to sheer away from the special symbolism exemplified by "A and his heirs," and adopt a liberal construction. In so doing, they lose exactness by giving effect to non-technical phrases which are capable of several different meanings. I am by no means sure that this is to be deplored. Indeed, my previous adverse criticism of the Scottish charity case stressed the disadvantages of extreme precision. Years ago James Bradley Thayer emphasized the hopelessness of the ideal which lawyers have long cherished, of treating all the language in legal documents as a specially devised symbolism:¹⁹

> The Chief Justice [Holt] here retires into that lawyer's Paradise where all words have a fixed, precisely ascertained meaning; where men may express their purposes, not only with accuracy, but with fulness; and where, if the writer has been careful, a lawyer, having a document referred to him, may sit in his chair, inspect the text, and answer all questions without raising his eyes. Men have dreamed of attaining for their solemn muniments of title such an absolute security; and some degree of security they have compassed by giving strict definitions and technical meanings to words and phrases, and by rigid rules of construction. But the fatal necessity of looking outside the text in order to identify persons and things, tends steadily to destroy such illusions and to reveal the essential imperfection of language, whether spoken or written.

For the most part, the language of lawyers is likely to possess a good deal of the indefiniteness of the language everybody speaks. It is significant that the technical terms suggested by Wigmore and Hohfeld to clarify legal discussion, like "autoptic proference" and "no-right",

18. See COHEN AND NAGEL, AN INTRODUCTION TO LOGIC AND SCIENTIFIC METHOD (1934) 119-120.

19. THAYER, A PRELIMINARY TREATISE ON EVIDENCE (1898) 428-429.

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have not been widely accepted by the bench and bar or even by law schools.

Let me describe a few legal difficulties about non-legal words, which seem of value to the writer on Semantics. Few of these have to do with abstractions of high order. Most of the worries of Ogden and Richards are about words like "beauty," "meaning," "knowledge," "good", where the user of the words had no specific objects clearly before his mind. Judges and lawyers worry a great deal about words on the lower levels of the verbal hierarchy such as "children" or "issue", where the person who wrote down the words was thinking of something pretty definite, but it is hard later on to know what it was.

The first group of cases involve ordinary concrete words in a document which were intended to indicate just one person or thing, but the interpreting tribunal discovers that the words are conceivably a symbol for two persons or things. To which shall they apply? The Scottish charity case is an illustration. Here proper names cause great difficulty though they are not abstract at all. Suppose a will leaves a large legacy to "my nephew Joseph Grant"; two Joseph Grants claim it, the testator's nephew and his wife's nephew, with whom he was much more intimate.²⁰ Enemies of Senator Norris of Nebraska almost succeeded in putting the name of a mute, inglorious George W. Norris of Broken Bow on the ballot along with the Senator's name, to leave the voters hopelessly confused between two identical symbols.²¹

In a second situation the writer had several persons or things or acts in mind and used one generic word to describe his intention, but uncertainty subsequently arises as to the exact limits of the class. Thus "remarries" in my opening illustration was obviously intended to include possible remarriages to many different persons; the only doubt was whether union to the writer of the word was within the class of forbidden acts. Many cases turn on the limits of "children" and "grandchildren."²² For example, after a life estate a fund is given "to my grandchildren." Does this include a lawful child of the testator's illegitimate son? An illegitimate child of the testator's lawful daughter? Her adopted child? Grandchildren born after the testator's death? Grandchildren who died before the distribution of the fund? Grandchildren born after that date?

A third problem is suggested by a recent New York case.²³ A

20. Grant v. Grant, L. R. 5 C. P. 727 (1870).

21. State ex rel. Smith v. Marsh, 120 Neb. 287, 232 N. W. 99 (1930), see (1931) 9 NEB. LAW BULL. 467-468.

22. See Casner, *Class Gifts—Definitional Aspects* (1941) 41 COLUMBIA LAW Rev. 1.

23. Matter of Hayes, 146 Misc. 660, 263 N. Y. Supp. 730 (Surr. Ct. 1933), *aff'd*, 263 N. Y. 219, 188 N. E. 716 (1934).

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former Wellesley professor had written a book on education containing a chapter entitled "Words and Their Meaning." Thereafter she wrote her own will. Among other gifts, some money was bequeathed to Arthur Garfield Hays "to use at his discretion in promoting the ends of justice." A serious controversy followed as to the extent of the legacy to Mr. Hays. The testatrix undoubtedly had in mind some portion of her property, but did not clearly say what portion. She left it uncertain whether the benevolent purposes she mentioned were to absorb the bulk of her estate, or only a small fund. Here, there was a need for the special symbols devised by lawyers to indicate a rather complex process. Words of common speech proved inadequate. However, the courts managed to find sufficient evidence to give the bulk of the estate to Mr. Hays to promote the ends of justice.

Finally, we have the interesting situation where the writer employs a usual word in an unusual sense. May "a thousand" be construed to mean twelve hundred as it does in the rabbit business?²⁴ Can the court take "white" for "black" in a contract about "white selvage," as the trade calls something definitely dark?²⁵ Here Sir George Jessel declared to counsel that "nobody could convince him that black was white"; but the Court of Appeal reversed him. Even if we are thus willing to ignore the usage of ordinary speech and derive our system of symbols from the special language of a trade or profession, what shall we do with a testator who writes a will in his own peculiar code or a business man whose contract employs words in a sense unfamiliar to the other party? The difficulty of this problem of the divergence between ordinary and special meanings has caused sharp conflict of opinion between such great thinkers as Dean Wigmore and Mr. Justice Holmes.

One important warning must be given to non-legal students of words who resort to law for material. The information which can be employed by a legal tribunal during interpretation is somewhat limited by rules based on tradition or policy. When we lawyers are dealing with an operative document like a will or deed or contract or judicial decree or statute, we have a special purpose. As Hawkins says, "We desire not solely to obtain information as to the intention or meaning of the writer . . . , but also to see that that intention or meaning has been expressed in such a way as to give it legal effect and validity."²⁶ We must not let our attention wander far away from what has been properly authenticated by the formalities required by law, such as a

24. Smith v. Wilson, 3 B. & Ad. 728, 110 Eng. Rep. 266 (K. B. 1832).

25. Mitchell v. Henry, 15 Ch. D. 181 (1880).

26. Hawkins, *op. cit.*, *supra* note 17, reprinted in THAYER, *PRELIMINARY TREATISE ON EVIDENCE* (1898) 580, 581.

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seal for a deed or witnesses for a will or the execution of a written contract or a lease by both parties.

For example, if an office holder writes a letter which makes some obscure statement about his not running again, political columnists can elucidate his meaning by all his oral references to the subject. But if a testator makes an obscure disposition in his will, his contemporaneous oral statements about his intention cannot ordinarily be collected to explain the will, because they are not surrounded with the safeguards imposed by law—writing and execution in the presence of witnesses. There is danger that to some extent we might be setting up an oral will.

Again, if A offers in writing to rent a house to B, a stranger, for "fifty-nine dollars" a month and B accepts, B can have it for that amount even though dozens of witnesses testify that ever since the United States went off gold A has been accustomed to use the words "fifty-nine dollars" to describe $100 in bills. Yet if A uses the same phrase in a political speech, his friends can afterwards explain his arithmetic by telling about his verbal whim. To introduce this private joke into the lease would be unfair to the tenant and deprive him of the safeguards offered by the writing on which he relied.

A considerable portion of the judicial opinions and writings on legal interpretation are concerned with this question of preserving proper safeguards and of enforcing the document rather than something else. In this respect they may not be very helpful toward solving the question what words mean.

### III

In concluding, I should like to draw together a good deal of what I have been saying into a few suggestions about two unsolved problems of interpretation. I am not pretending to be able to solve them, but perhaps I can bring the solution a bit nearer.

It is high time that I wound up the case of Hugh and Patricia. It touches the broader problem—what part does the user's intention really play in the determination of the legal effect of words? My first suggestion is, that we should firmly resolve never to speak of the intention of a testator or other writer on a given point except after we have carefully convinced ourselves that that point was actually in his mind when he wrote the words in question. For example, we will never say "He intended this result" when we merely think that if he had foreseen the present contingency (which he didn't) then he would have intended this result. That consideration may be helpful, but it is not his intention. Again, what the judge would have intended in the circumstances of the writer or what a reasonable man would have intended or what

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the normal speaker of English would have intended may also be helpful, but they have even less to do with the mind of the man who used the words. My guess is, that if we stick by this resolve, we shall soon find that his intention is a much less important factor in the decision than the frequent uncritical use of the word in judicial opinions and law books would lead us to suppose. Once in Providence the relatives of a testator contested his will and eventually all the parties interested agreed on a compromise will, which under the Rhode Island statute was probated as *the* will of the testator. Subsequently a dispute arose about a clause which the contestants had put into the compromise will, so they had a suit to construe that will, during which the judge frequently referred to "the intention of the testator".

Ogden and Richards give dire warnings about the obscurity of defining "meaning" either as what the writer intends to be understood from the words by the reader, or as that to which the reader believes the writer to be referring.²⁷

To clarify the problem, go back to my earlier statement that legal interpretation is a passing from the word to the object through somebody's mind. Whose mind? Not that of the author of the document. Indeed, if it be a will he is dead. It must be the mind of the judge. Although his mind may be influenced by what he believes the testator or other user to have thought, the mental operations of the two men cannot fully correspond. Other important factors beside the supposed intention of the testator, etc., contribute to the thought which the judge ultimately frames before applying the words to the outside world.

Therefore, my next suggestion is that the "meaning" of language in operative documents is a combination of several of the different senses in which judges use "meaning", only one or two of which involve the intention of the writer; and that the relative importance of his intention varies considerably with the type of document under consideration. It is most important in a will, which Lord Blackburn called "the language of a testator, soliloquizing."²⁸ It is less important in a contract, where the fair expectation of the other party has to be given effect. "It makes not the least difference," says Judge Learned Hand, "whether a promisor actually intends that meaning which the law will impose upon his words. The whole House of Bishops might satisfy us that he had intended something else, and it would make not a particle of difference in his obligation."²⁹ Intention is even less important, I venture to say, in

27. *THE MEANING OF MEANING*, 195, 208.

28. Grant v. Grant, L. R. 5 C. P. 727, 728 (1870).

29. Eustis Mining Co. v. Beer, Sondheimer & Co., Inc., 239 Fed. 976, 984 (S. D. N. Y. 1917). See the same judge in Hotchkiss v. Nat. City Bank, 200 Fed. 287, 293 (S. D. N. Y. 1911).

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the interpretation of a statute, in writing which hundreds of persons participated with widely varying degrees of attention and with very little chance of envisaging the contingencies that have arisen later. This important point was cleared up by Morris Cohen years ago,³⁰ so that a single illustration must suffice.

Years ago I drafted an intestacy act for the Rhode Island Bar Association. After hearing my explanation, the Association accepted the draft and had it introduced in the legislature. At the committee hearing I again explained the bill. The legislature enacted it, largely because the Association recommended it. Later the Rhode Island Supreme Court had to decide whether the words "real estate" in the statute included a peculiar interest in land.³¹ Both sides wrote me to learn my intention. In two identical replies I said that I had never thought of this point before, but that I now considered the interest to be "real estate" within the act. Both lawyers offered to read my letter to the court, which very properly refused to listen to it. So the intention of the only person who had given prolonged thought to the bill was ignored, and in fact he had no intention on this point. The court decided the case according to my subsequent view, and said that this construction was "not inconsistent with the manifest intent" of the legislature. As Gray writes, "When the judges are professing to declare what the legislature meant, they are in truth themselves legislating to fill up casus omissi."

My last suggestion is that a judge faced with an interpretation case may wisely follow Ogden and Richard's plan of listing all the senses in which he employs "meaning," that is all the factors which he proposes to use in forming his thought-picture in reacting to the disputed words. Then when he comes to write his opinion, it will be very profitable if, instead of jumbling these factors, he takes them up one at a time, always making it clear what he is doing at the moment.

So I venture to put myself in the place of a judge deciding Hugh and Patricia's suit against the trustees. First, the actual intention of the parties when signing the settlement is considered and rapidly dismissed, since the possibility of reunion to Patricia was out of Hugh's mind, and equally out of hers.

Next, other clauses of the settlement are examined for help. For instance, there might be a clause expressly mentioning a reconciliation between spouses. Nothing is found.

Then common usage is invoked and dictionaries are pulled down,

30. *Legal Theories and Legal Science* (1915) 38 REP. N. Y. ST. BAR ASS'N 177, reprinted in revised form in his *LAW AND THE SOCIAL ORDER* (1933), 112ff. See also Gray, *THE NATURE AND SOURCES OF THE LAW* (2d ed. 1921) 170-188; Chafee in *AMERICA NOW* (1938) 310-312.

31. Fischer v. Scott, 44 R. I. 368, 117 Atl. 417 (1922).

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but they merely sanction both proposed interpretations. Holmes's "normal speaker of English" would sometimes use "remarries" to apply to a new marriage between the same persons and sometimes only to a new marriage with a new spouse. Indeed, I suspect that common usage is much less important in this kind of litigation than Holmes maintains. There are of course thousands of occurrences out of court every day when members of a family or business men or administrative officials settle the effect of a document by common usage. But for the most part, it is only when this kind of arbitration fails that litigation begins. The disputants don't usually start suing each other except when, as here, each party can find a dictionary definition which backs up his side of the case. For example, how useless "good use" is in all the will-cases about "children" and "grandchildren." Common usage resembles the banks of a river. The court must keep within it, but it doesn't tell where the proper channel lies.

Sometimes a rule of construction established by statute or prior decisions gives a presumptive meaning to a phrase, especially if it be technical—the specially devised symbolism already mentioned—but "remarries" has, I assume, not been thus defined.

At last I am thrown back to a device judges frequently use and rarely admit. To be frank, the parties have left a hole in the instrument and the court must fill up this hole with the plan that will work most fairly to all concerned under the circumstances. It is something like invisible mending, except that the hole was there from the start; the same requirements prevail,—the hole must not be a big one and the added material must fit into the old pattern. Hugh and Patricia did not say what was to happen if they were reunited, so the court must draft its own clause to cover the situation. There would be some sense in preventing a second husband from living off Hugh's bounty, but that contingency has not arisen. To give the money to the children, now that their parents are reconciled, serves no useful purpose, so the trustees were wrong. What then? Perhaps the fund should go back to Hugh, on the ground that the life of the trust ends with the life of the divorce. But I am apprehensive that the marriage once broken may not be very well mended, and I should like to keep the trust alive awhile to take care of a possible second smash-up. This may be too strong-armed an exercise of judicial power, although the continued supervision over alimony is analogous. At any rate, I direct the income to be paid to Patricia until the court decrees otherwise, and shall not be unduly grieved if Hugh ungraciously appeals and I am reversed.

In short, what is commonly called "the intention of the parties"

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is in large measure the intention of the judge, subject to all sorts of
traditional restraints on his range of choice. When all is said and done,
the court of last resort in an interpretation case can echo quite a bit of
the famous boast of Humpty Dumpty:

"When I use a word," Humpty Dumpty said, in rather a scornful tone,
"it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean so
many different things."

"The question is," said Humpty Dumpty, "which is to be master—that's all."

Still more complex is the problem of interpreting a document written many years ago, like the Constitution of the United States. Some critics of the Supreme Court like to demonstrate that words like "commerce" had a different meaning for the framers than for us, in view of the great changes in economic and social conditions since 1787. And "due process" was always a vague phrase. So they go on to the conclusion that, apart from the rules of the Constitution for governmental machinery, "its power today is largely ritualistic, and so without much useful meaning for practical problems."32 One of two consequences seems logically to follow. First the Supreme Court justices might frankly exercise an unlimited veto power over statutes, without professing any longer that they are obligated to do so by a document which, we are told, was written to surmount a crisis that was surmounted more than a century ago. Or secondly (what these critics probably prefer) the justices might recognize every federal or state statute as valid. Either way, most of the Constitution would have the same historical interest as the Declaration of Independence and the same lack of present legal effect.

Here again the problem is far less simple than these writers make
out. No doubt we are forced to broaden our conception of the "mean-
ing" of a word, when we are dealing with language which is applied
many years after it was originally written. Those who used the word
knew of definite persons or things which fell within its terms. Many
of these tangible realities have long since disappeared. Others have
come into existence of which the writers never thought. But must we
necessarily say that the word has now become meaningless? Perma-
nence and change are not always inconsistent. Even a solid object like a
table, as Eddington tells us, is not really the same from one instant to
another, for there is an ever-shifting dance of molecules or electrons.

32. CHASE, TYRANNY OF WORDS, 316.

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Yet for all the practical purposes of life, we can say that the same table
stands there year after year. Or take a river. The drops of water that
compose it pass steadily on, but something stays there which is distinct
from its physical constituents.

I see what was, and is, and will abide;
Still glides the stream, and shall not cease to glide;
The Form remains, the Function never dies.

Indeed the ever-changing Tiber has outlasted all the buildings that once
stood motionless along its banks.

Disce hinc quid possit fortuna; immota labascunt;
Et quae perpetuo sunt fluitura, manent.

An even closer analogy to an enduring phrase is found in a human
individual. He is considered to be the same person from birth until
death, although his tissues replace themselves, his mind develops, and
his external relations may be completely altered. Gladstone, whom
Macaulay in 1839 called "the rising hope of those stern and unbending
Tories," was not a different person from the man who was too radical
for half of the Liberal Party in 1886. Some kind of identity persists
through changes that startle even the person concerned. As the old
lady exclaimed when her mind went askew,

If I be I, as I think I be,
Then will my little dog know me!

Therefore it is not correct to say, with Stuart Chase, that "we can-
not expect the meaning of written constitutions to survive extensive
changes in culture." Of course a clause acquires new significations as
external conditions alter and many cases are decided. It becomes appli-
cable to more tangible objects or to fewer. It grows like a human being,
or like a university, which has a continuous life although older profes-
sors and students are gradually replaced by younger men. Thus the
study of words raises one of the deepest philosophical problems, that of
identity, which the Greeks expressed in the paradox of the Argo: Was
the ship still there though all the timbers had been renewed? It is the
small boy's "same old jack-knife with six new blades and five new
handles."

The problem of long-enduring words extends far beyond consti-
tutions. Even if courts could disregard constitutional phrases limiting
the national government at the risk of disrupting the federal system, they

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would not be equally free to reject the responsibility of interpreting
words in old statutes (some of them long antedating the Constitution,
like the Statute of Frauds of Charles II's reign) and old contracts and
deeds. In 1933 a United States court had to interpret the gold clause
in a lease of water power executed just before the Civil War.³³

Nor is it always sufficient to determine what objects the words were
applied to at the time they were written. A grant of the dramatic rights
in a popular novel, given before the invention of motion pictures, may
conceivably include screen rights; and few will follow the lawyer who
wrote a book to prove that Congress could not regulate railroad rates
under its powers over "commerce" because the only transportation in
1787 was by boats and wagons.³⁴ When those who used words con-
templated their long continued application, these words must eventually
acquire a new content, especially when, as Marshall said, "It is a Con-
stitution that we are interpreting."

Let me end with a story about Robert Browning. Toward the
close of his life he received a letter from Professor Hiram Corson of
Cornell, asking whether one of his early obscure poems meant what
Corson supposed it did. Browning replied, "I didn't mean that when I
wrote it, but I mean it now."

ZECHARIAH CHAFEE, JR.

HARVARD LAW SCHOOL

33. Holyoke Water Power Co. v. American Writing Paper Co., Inc., 68 F.(2d) 261 (C. A. 1st, 1933). See also Nashua Hospital Association v. Gage, 85 N. H. 335, 159 Atl. 137 (1932) (construing deeds executed in 1850).

34. PRENTICE, FEDERAL POWER OVER CARRIERS AND CORPORATIONS (1907).

# THE RACES OF MANKIND

By PROFESSOR RUTH BENEDICT
and DR. GENE WELTFISH
Department of Anthropology
Columbia University

## The World is Shrinking

Thirty-four nations are now united in a common cause—victory over Axis aggression, the military destruction of fascism. This is the greatest fighting alliance of nations in history. These United Nations include the most different physical types of men, the most unlike beliefs, the most varied ways of life. White men, yellow men, black men, and the so-called “red men” of America, peoples of the East and the West, of the tropics and the arctic, are fighting together against one enemy.

Every morning in the newspapers and on the bulletin boards we read of yesterday's battles in Russia, in China, in Italy, in the Solomon Islands, and in New Guinea. One day's hop in a plane

This pamphlet was prepared under the supervision of a committee of the American Association of Scientific Workers. The committee includes the following members of the faculty of Columbia University: Prof. Ruth Benedict, Anthropology; Prof. L. C. Dunn, Zoology; Prof. Otto Klineberg, Psychology; Dr. Marion Smith, Anthropology; and Dr. Gene Weltfish, Anthropology.

Copyright, 1943, by the Public Affairs Committee, Incorporated
—A nonprofit, educational organization—

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can carry us across the oceans. Our supply ships go to every corner of the globe. On the radio we hear men reporting on the spot from Cairo and Australia. Burma is much closer to us today than New Orleans was to Washington at the time of the War of 1812. Distance then was a hard fact; it had not been scaled down by the triumphs of human invention.

This war, for the first time, has brought home to Americans the fact that the whole world has been made one neighborhood. All races of man are shoulder to shoulder. Our armed forces are in North Africa with its Negro, Berber, and Near-East peoples. They are in India. They are in China. They are in the Solomons with its dark-skinned, "strong"-haired Melanesians. Our neighbors now are peoples of all the races of the earth.

For Americans this is not so new an experience as it is to people of most nations. In our country men of different color, hair texture, and head shape have lived together since the founding of our nation. They are citizens of the United States. Negroes and whites, Indians, Mexicans, Chinese, and people from the European nations are all taxable, subject to the draft and to the other laws of the land. They are part of our great national community. History today is only bringing together on a world scale races which have been brought together on a smaller scale here in America.

Americans know better than most how much hard feeling there can be when people of different races and nationalities have to live together and be part of one community. They know that there is often conflict. Today when what we all want more than anything else is to win this war, most Americans are confident that, whatever our origins, we shall be able to pull together to a final victory. Hitler, though, has always believed we were wrong; he has believed that hard feeling would break out and leave us defeated. He has been sure that he could "divide and conquer." He has believed that he could convince nonwhite races in Asia and Africa that this is a "white man's war." He has believed especially that America was a no man's land, where peoples of all origins were ready to fall to fighting among themselves. He

THE RACES OF MANKIND

believes that this is a front on which we are doomed to lose the battle. It is certainly a front no less important in this war than the Production Front and the Inflation Front.

## Science and the Race Front

In any great issue that concerns this war we turn to science. When we need new fuels, substitutes for rubber, lighter metals, or new plastics, we ask scientists to tell us what is possible and what is impossible. The chemists tell us how to make the plastics we need, and the physicists tell us how to detect and locate an approaching airplane, and the engineers tell us how to build a better fighting plane. When we are faced with war shortages, they tell us what essential materials we have been throwing out on the dump heap.

We need the scientist just as much on the race front. Scientists have studied race. Historians have studied the history of all nations and peoples. Sociologists have studied the way in which peoples band together. Biologists have studied how man's physical traits are passed down from one generation to the next. Anthropologists have studied man's bodily measurements and his cultural achievements. Psychologists have studied intelligence among different races. All that the scientists have learned is important to us at this crucial moment of history. They can tell us: "this is so," "this is not so," "this occurs under certain conditions," or "this occurs under opposite conditions."

This booklet cannot tell you all that science has learned about the races of mankind, but it states facts that have been learned and verified. We need them.

## One Human Race

The Bible story of Adam and Eve, father and mother of the whole human race, told centuries ago the same truth that science has shown today: that all the peoples of the earth are a single family and have a common origin. Science describes the intricate make-up of the human body: all its different organs cooperating in keeping us alive, its curious anatomy that couldn't possibly

4

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have "just happened" to be the same in all men if they did not
have a common origin. Take the structure of the human foot,
for instance. When you list all the little bones and muscles and

THE PEOPLES OF THE EARTH ARE ONE FAMILY.

the joints of the toes, it is impossible to imagine that would
all have happened twice. Or take our teeth: so many front teeth,
so many canines, so many molars. Who can imagine finding the
same arrangements in two human species if they weren't one
family?

The fact of the unity of the human race is proved, therefore,

THE RACES OF MANKIND

5

in its anatomy. It is proved also by the close similarity in what all
races are physically fitted for. No difference among human races
has affected limbs and teeth and relative strength so that one race
is biologically outfitted like a lion and another biologically out-
fitted like a lamb. All races of men can either plow or fight, and
all the racial differences among them are in nonessentials such
as texture of head hair, amount of body hair, shape of the nose
or head, or color of the eyes and the skin. The white race is the
hairiest, but a white man's hair isn't thick enough to keep him
warm in cold climates. The Negro's dark skin gives him some
protection against strong sunlight in the tropics, and white men
often have to take precautions against sunstroke. But the war has
shown that white men can work and fight even in a tropical
desert. Today white men in hot countries wear sun helmets and
protect themselves with clothes and rub their skin with suntan
oil. Very dark-skinned people in the north, too, can add cod-liver
oil and orange juice to their diet, and, if they need to, take a
vitamin pill or two. The shape of the head, too, is a racial trait;
but whether it is round or long, it can house a good brain.

The races of mankind are what the Bible says they are—
brothers. In their bodies is the record of their brotherhood.

WHAT ARE RACE DIFFERENCES?

THE greatest adventure story in the history of the world is the
spread of early man to all corners of the globe. With crude tools,
without agriculture, without domesticated animals except the
dog, he pressed on, from somewhere in Asia, to the tip of Africa,
to the British Isles, across Behring Strait into America and down
to Cape Horn. He occupied the islands of the Pacific and the
continent of Australia. The world had a small population then,
and many of these pioneers were for centuries as separated from
other peoples as if they lived on another planet. Slowly they
developed physical differences.

Those who settled nearer the equator, whether in Europe,
Asia, or in the Americas, developed a darker skin color than

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THE RACES OF MANKIND

those who settled to the north of them. People's hair is often the same over great areas: frizzly hair, lank hair, wavy hair. Europeans remained quite hairy, but in some parts of the world body hair almost disappeared. Blue eyes appeared in the north. In some places in Asia a fold of skin developed over the inner corner of the eye and produced what we call a slant eye.

All these distinctive traits made it easy to recognize people as belonging to different parts of the world. In each place the people got used to looking at one another. They said, "Our men are really men. Our women are beautiful. This is the way people should look." Sometimes they liked the appearance of their close neighbors. But strangers seemed odd and queer. Strangers wore funny clothes and their manners were bad. Even more important, strangers did not look the way people should. Their noses were too flat or too pointed. Their skin was "a sickly white" or "a dirty black." They were too fat or too short. Everywhere in the world men and women used the standard of their own people to judge others and thought that people who differed from this standard looked funny or ugly.

## All Peoples Much the Same

After the discovery of America by Columbus, Europeans began traveling to every quarter of the globe, and all the new peoples they met were complete strangers to them. For one thing, the Europeans couldn't understand their languages. They looked and acted strange. Europeans thought they were different creatures and named a lot of different "races." Gradually the Europeans described each one as having a skin color, kind of hair, kind of lips, height, and head shape that was peculiar to that "race." Nowadays we know that this was a false impression.

## HEIGHT

Take height, for example. There are tall and short people almost everywhere in the world. Near the sources of the Nile, the Shilluk Negroes are 6 feet 2 inches; their neighbors, the brown pygmies, are 4 feet 8 inches. In Italy, a six-footer and a five-

 footer could both be native Italians for generations back. Among the Arizona Indians, the Hopi Pueblos are 5 feet 4 inches; their Mohave neighbors are nearly 6 feet.

A report of the Selective Service System of November 10, 1941, showed that registrants examined for the U. S. Army varied in height from 4 feet 6 inches to 7 feet 4 inches. This represents the extremes of height anywhere in the world. The Army's limits for acceptance, from 5 feet to 6 feet 6 inches, would include most men the world over.

## SHAPE OF HEAD

Take the shape of the head as another example. In West Africa there are more long heads; in the Congo, more round. Among the American Indians, as well as in the population of Europe, both the longest and the roundest heads are to be found, and in Asia Minor long heads and round heads appear among very close relatives.

Or let us take the brain itself. Because the brain is the thinking organ, some scientists have tried to find differences in the size and structure of the brain among different groups of people. In spite of these efforts, using the finest microscopes, the best scientists cannot tell from examining a brain to what group of people

THERE ARE TALL ONES AND SHORT ONES IN ALL COLORS.

THE RACES OF MANKIND

7

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THE RACES OF MANKIND

its owner belonged. The *average* size of the brain is different in different groups, but it has been proved over and over again that the size of the brain has nothing to do with intelligence. Some of the most brilliant men in the world have had very small brains. On the other hand, the world's largest brain belongs to an imbecile.

BLOOD THE SAME

For ages men have spoken of "blood relations" as if different peoples had different blood. Some people have shouted that if we got into our veins the blood of someone with a different head shape, eye color, hair texture, or skin color, we should get some of that person's physical and mental characteristics.

Modern science has revealed this to be pure superstition. All human blood is the same, whether it is the blood of an Eskimo or a Frenchman, of the "purest" German "Aryan" or an African pygmy—except for one medically important difference. This medical difference was discovered when doctors first began to use blood transfusion in order to save life. In early attempts at transfusion it was discovered that "agglutination" or clumping together of the red cells sometimes occurred and caused death. Gradually investigators learned that there are four types of blood, called O, A, B, and AB, and that although blood typed O can be mixed successfully with the other three, none of these can be mixed with one another without clumping.

These four types of blood are inherited by each child from its forebears. But whites, Negroes, Mongols, and all races of man have all these blood types. The color of their skin does not tell at all which blood type they have. You and an Australian bushman may have the same blood type. Because you inherit your bodily traits from your many different ancestors, you may have a different blood type from your mother or your father or your brothers and sisters. You may have eyes like your mother's, teeth and hair like your father's, feet like your grandfather's, and a blood type like your great-grandmother's.

Today doctors do not "type" blood for transfusion at all. The

THE RACES OF MANKIND

9

red and white cells or corpuscles are removed, and the remainder is the same whatever race it comes from. The Blood Bank calls it plasma. It is dried and kept indefinitely. When needed for emergency transfusions, it is mixed with water and can save the life of any man or woman in the world. The same blood plasma is used to restore any man of any color who has been wounded in battle.

MOST PEOPLE IN THE WORLD HAVE IN-BETWEEN-COLOR SKIN.

COLOR

Finally, let us take skin color, the most noticeable of the differences between peoples. Few traits have been used as widely to classify people. We all talk about black, white, and yellow races of man.

In the world today the darkest people are in West Africa, the lightest people in northwest Europe, while in southeast Asia are men with yellowish-tan skins. Most people in the world, how-

10

THE RACES OF MANKIND

ever, are not of these extremes but are in-betweens. These in-
betweens probably have the skin shades that were once most
common, the white, yellow, and dark brown or black being
extreme varieties.

Recently scientists found that skin color is determined by two
special chemicals. One of these, *carotene*, gives a yellow tinge;
the other, *melanin*, contributes the brown. These colors, along
with the pinkish tinge that comes when the blood vessels show
through, give various shades to the human skin. Every person,
however light or dark his skin may appear, has some of each of
these materials in his skin. The one exception is the albino, who
lacks coloring substances—and albinos appear among dark- and
light-skinned peoples alike. People of browner complexions sim-
ply have more *melanin* in their skin, people of yellowish color
more *carotene*. It is not an all-or-nothing difference; it is a
difference in proportion. Your skin color is due to the amount
of these chemicals present in the skin.

HOW ARE RACES CLASSIFIED?

THE three primary races of the world have their strongest
developments in areas A, B, and C on the map on page 9.
In these parts of the world most of the inhabitants not only have
the same skin color but the same hair texture and noses. A is the
area of the Caucasian Race, B of the Mongoloid Race, C of
the Negroid Race.

The Caucasian Race inhabits Europe and a great part of the
Near East and India. It is subdivided in broad bands that run
east and west: Nordics (fair-skinned, blue-eyed, tall, and long-
headed) are most common in the north; Alpines (in-between
skin color, often stocky, broad-headed) in the middle; Mediter-
raneans (slenderer, often darker than Alpines, long-headed) in
the south. The distribution of racial subtypes is just about the
same in Germany and in France; both are mostly Alpine and
both have Nordics in their northern districts. Racially, France

THE RACES OF MANKIND

11

and Germany are made up of the same stocks in just about
equal proportions.

American Indians are Mongoloid, though they differ phys-
ically both among themselves and from the Mongols of China.

The natives of Australia are sometimes called a fourth primary
race. They are as hairy as Europeans, and yet they live in an area
where other peoples have very little body hair.

THERE IS NO JEWISH "RACE."

Aryans, Jews, Italians are *not* races. Aryans are people who
speak Indo-European, "Aryan" languages. Hitler uses the term
in many ways—sometimes for blond Europeans, including the
Scandinavian; sometimes for Germans, whether blond or brunet;
sometimes for all who agree with him politically, including the
Japanese. As Hitler uses it, the term "Aryan" has no meaning,
racial, linguistic, or otherwise.

Jews are people who practise the Jewish religion. They are of
all races, even Negro and Mongolian. European Jews are of
many different biological types; physically they resemble the
populations among whom they live. The so-called "Jewish type"
is a Mediterranean type, and no more "Jewish" than the South
Italian. Wherever Jews are persecuted or discriminated against,
they cling to their old ways and keep apart from the rest of the
population and develop so-called "Jewish" traits. But these are

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THE RACES OF MANKIND

not racial or "Jewish"; they disappear under conditions where
assimilation is easy.

Italians are a nationality. Italians are of many different racial
strains; the "typical" South Italian is a Mediterranean, more
like the Spaniard or the Greek or the Levantine Jew than the
blond North Italian. The Germans, the Russians, and all other
nations of Europe are *nations*, not races. They are bound to-
gether, not by their head shape and their coloring, but by their
national pride, their love of their farms, their local customs,
their language, and the like.

Racial Mixture

As far back in time as the scientist can go he finds proof that
animals and men moved about in the world. There were different
kinds of animals, and many of them went great distances. But
wherever they went, the different kinds could not breed together.
A tiger cannot mate with an elephant. Even a fox and a wolf
cannot mate with each other. But whenever groups of people
have traveled from one place to another and met other people,
some of them have married and had children.

At first men had to travel by foot. It took them a long time
but they got almost all over the world that way. Long ago when
people knew only how to make tools out of stone, the Cro-
Magnons lived in Europe. Waves of migration came in from
the east and the southeast. These new people settled down, bred
with the Cro-Magnons, and their children were the ancestors
of modern Europeans. Since then there have been many migra-
tions from Asia and northern Africa.

Later men tamed the horse. They built carts and rode horse-
back. They built great boats, which were rowed by hundreds of
men. They could go faster and travel farther than ever before.
The Phoenicians went on trading expeditions through the Medi-
terranean. The Romans went to Spain and up along the coast
to the British Isles. Then the Huns swept in from Asia through
central Europe and destroyed the Roman Empire. The Tartars
came in from the east. They threatened to conquer all of Europe

THE RACES OF MANKIND

13

but were defeated in one of the greatest cavalry engagements of
all time. The Mohammedans captured all of North Africa; they
took Spain and went on up into France across the Pyrenees.
Thousands of Negro slaves have been brought into Europe at
various times. Where are they now? Peoples have come and
gone in Europe for centuries. Wherever they went, some of them
settled down and left children. Small groups were absorbed into
the total population. Always the different races moved about
and intermarried.

We are used to thinking of Americans as mixed. All of us have
ancestors who came from regions far apart. But we think that
the English are English and the French are French. This is true
for their nationality, just as we are all Americans. But it is not
true for their *race*. The Germans have claimed to be a pure
German race, but no European is a pure anything. A country
has a population. It does not have a race. If you go far enough
back in the populations of Europe you are apt to find all kinds
of ancestors: Cro-Magnons, Slavs, Mongols, Africans, Celts,
Saxons, and Teutons.

It is true, though, that people who live closer together inter-
marry more frequently. This is why there are places like Alsace-
Lorraine, where Germans and French have intermarried so much
that the children cannot tell whether they are German or French
and so call themselves Alsatians. Czechoslovakia included old
Bohemia which had a population of Nordics and semi-Asiatics
and Slavs. After World War I the Germans and the Czechs along
the border between the two countries intermarried so often that
the Germans of this section got to look like Czechs and the Czechs
began to speak German. But this did not make the two countries
love each other.

People of every European nation have racial brothers in other
countries, often ones with which they are at war. If at any one
moment you could sort into one camp all the people in the world
who were most Mediterranean, no mystic sense of brotherhood
would unite them. Neither camp would have language or nation-
ality or mode of life to unite them. The old fights would break

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THE RACES OF MANKIND

WITH BETTER HOME, SCHOOL, MEDICAL CARE, JOHNNY COULD HAVE BEEN JIMMY.

out again unless social conditions were changed—the old hatred between national groups, the old antagonisms between ruler and ruled and between the exploiter and the exploited.

The movements of peoples over the face of the earth inevitably produce race mixture and have produced it since before history began. No one has been able to show that this is necessarily bad. It has sometimes been a social advantage, sometimes a running sore threatening the health of the whole society. It can obviously be made a social evil, and, where it is so, sensible people will avoid contributing to it by grieving if their children make such alliances. We must live in the world as it is. But, as far as we know, there are no immutable laws of nature that make racial intermixture harmful.

## Racial Superiorities and Inferiorities

When they study racial differences, scientists investigate the way by which particular traits are passed on from parents to children. They measure head form and identify skin color on a color chart. They map out the distribution of different kinds of hair or noses in the world. Scientists recognize that these differences do not themselves show better or worse qualities in peoples, any more than bay horses are better than black ones.

THE RACES OF MANKIND

15

They know that to prove that a bay horse is superior to a black one you have to do more than identify its skin color on a color chart; you have to test its abilities.

Science therefore treats human racial differences as facts to be studied and mapped. It treats racial superiorities as a separate field of investigation; it looks for evidence. When a Nazi says "I am a blue-eyed Aryan and you are non-Aryan," he means "I am superior and you are inferior." The scientist says: "Of course. You are a fair-haired, long-headed, tall North European (the Anthropological term is Nordics, not Aryans), and I am a dark-haired, round-headed, less tall South European. But on what evidence do you base your claim to be superior? That is quite different."

Race prejudice turns on this point of inferiority and superiority. The man with race prejudice says of a man of another race, "No matter who he is, I don't have to compare myself with him. I'm superior anyway. I was born that way."

AN AMERICAN BROUGHT UP IN CHINA WILL SPEAK CHINESE.

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THE RACES OF MANKIND

It is the study of racial superiorities and inferiorities, there-
fore, which is most important in race lations. This investiga-
tion, to have any meaning at all, must get evidence for and
against the man who says, "I was born that way. My race is
proof that I am the better man." It must be an investigation
of what is better and what is worse in traits passed down by
inheritance. Such traits are, by definition, racial. The first thing
we want to know scientifically is what traits a man is born with
and what things happen to him after he is born. If he is lucky
after he is born, he will have good food, good care, good educa-
tion, and a good start in life; these are not things of which he
can boast: "I was born that way."

A man learns the language he speaks. If he'd been born of
Nordic parents and brought up from infancy in China, he'd
speak Chinese like a native and have as much difficulty learning
Swedish when he was grown as if he'd been born of Chinese
parents. He wasn't "born" to speak Cockney English or to speak
with a Brooklyn accent; he speaks the way people around him
speak. It's not a racial trait; he didn't inherit it.

Customs Not Racial

Differences in customs among peoples of the world are not
a matter of race either. One race is not "born" to marry in
church after a boy-and-girl courtship, and another race to marry
"blind" with a bride the groom has never seen carried veiled to
his father's house. One race is not "born" equipped to build
skyscrapers and put plumbing in their houses and another to
run up flimsy shelters and carry their water from the river. All
these things are "learned behavior," and even in the white race
there are many millions who don't have our forms of courtship
and marriage and who live in shacks. When a man boasts of his
racial superiority and says that he was "born that way," perhaps
what he's really saying is that he had a lot of luck after he was
born. A man of another race might have been his equal if he'd
had the same luck in his life. Science insists that race does not
account for all human achievements.

THE RACES OF MANKIND

17

What About Intelligence?

The most careful investigations of intelligence have been made
in America among Negroes and whites. The scientist realizes that
every time he measures intelligence in any man, black or white,
his results show the intelligence that man was born with *plus*

ANYONE CAN LEARN ANY LANGUAGE.

what happened to him since he was born. The scientist has a lot
of proof of this. For instance, in the First World War, intelligence
tests were given to the American Expeditionary Forces; they
showed that Negroes made a lower score on intelligence tests than
whites. But the tests also showed that Northerners, *black and white*,
had higher scores than Southerners, *black and white*.
Everyone knows that Southerners are inborn equals of North-
erners, but in 1917 many southern states' per capita expenditures
for schools were only fractions of those in northern states, and

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THE RACES OF MANKIND

PEOPLE ARE GENTLE OR WARLIKE DEPENDING ON THEIR TRAINING.

in their veins. But spiritually they are more like the Germans
than they are like their racial brothers, the peace-loving Chinese.

It can go the other way, too. In 1520 the ancient Mexicans
were like the Germans. They talked like Nazis, thought like them,
in many ways felt like them. They, too, believed war to be man's
highest mission. They, too, trained their children for it, placing
their boys in great state schools where they learned little else but
the glories of battle and the rituals of their caste. They, too,
believed themselves invincible, and against small, defenseless
villages, they were. But they were defeated in battle by the
Spaniards with the help of the peoples whom the Aztecs had
oppressed; their leaders were killed, their temples destroyed,
their wealth pillaged, and their power broken. The Mexican
peasant, who still speaks the Aztec language and in whose veins
still runs the blood of Aztec conquerors, no longer dreams of
glorious death in battle and eternal life in an Indian Valhalla.
He no longer goes on the warpath, no longer provokes war with
peaceful villages. He is a humble peon, wishing only to be left

THE RACES OF MANKIND

21

in peace to cultivate his little field, go to church, dance, sing,
and make love. These simple things endure.

Americans deny that the Nazis have produced a national char-
acter superior to that of Goethe's and Schiller's day, and that
the ruthless Japanese of today are finer human beings than in
those generations when they preferred to write poetry and paint
pictures. Race prejudice is, after all, a determination to keep
a people down, and it misuses the label "inferior" to justify
unfairness and injustice. Race prejudice makes people ruthless;
it invites violence. It is the opposite of "good character" as it is
defined in the Christian religion—or in the Confucian religion,
or in the Buddhist religion, or the Hindu religion, for that matter.

Civilization Not Caused by Race

History proves that progress in civilization is not the monopoly
of one race or subrace. When our white forebears in Europe were
rude stone-age primitives, the civilizations of the Babylonians and
the Egyptians had already flourished and been eclipsed. There
were great Negro states in Africa when Europe was a sparsely
settled forest. Negroes made iron tools and wove fine cloth for
their clothing when fair-skinned Europeans wore skins and knew
nothing of iron.

When Europe was just emerging from the Middle Ages,
Marco Polo visited China and found there a great civilization,
the like of which he had never imagined. Europe was a frontier
country in those days compared with China.

Since the beginning of history an unusual collection of for-
tunate circumstances have been present among one race, some-
times among another. Up to now, every great center of civiliza-
tion has had its day and has given place to others. The proud
rulers of yesterday become the simple peasants of another era.
The crude people who once threatened the great cities become
later the kings and emperors in the same country. The peoples
change, but the old arts of life are, for the most part, not perma-
nantly lost. They pass into the common heritage of mankind.

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THE RACES OF MANKIND

Inventions pass, too, from one continent to another when people trade with each other. This has happened since the dawn of history. About 5,000 years ago, when Europe was on the frontiers of the civilized world, Asiatics came to trade in Europe

THERE HAVE BEEN GREAT "EDISONS" IN ALL TIMES AND PLACES.

and North Africa in great caravans. They followed the main rivers—the Nile into North Africa, the Danube into Europe, and the Tigris and Euphrates Rivers out of Asia. People from all over came in contact with one another and compared notes on what they knew. In this way they pooled their knowledge, and

THE RACES OF MANKIND

23

out of this combined knowledge came the great inventions of civilization—massive building and the arts of metallurgy, chemistry, writing, medicine, and mathematics; transportation on wheels. The idea of printing and the use of movable type is an old Chinese invention, and our power engines depend upon a knowledge of explosives that the Chinese worked out with firecrackers.

When Columbus discovered America, corn, "Irish" potatoes, tobacco, and "Boston" beans were unknown in Europe. They had been developed by American Indians. Within ten years corn was being planted in Central Asia and in the interior of Africa, and African tribes today think that corn was given them by their own gods "in the beginning."

All races have made their contributions to human knowledge. Those who have lived at the crossroads of the world have invented most; those who have lived isolated on islands or at the tip ends of continents have been content to earn their livelihoods by old traditional methods. There was, for them, no "necessity" to be "the mother of invention" after they had devised a way to live on the land.

Peoples who came into contact with strangers, however, gave what arts of life they had and took what the strangers had. These contributions to civilization accumulated over the centuries and on this accumulation new discoveries are based. We are all the gainers.

The United States is the greatest crossroads of the world in all history. People have come here from every race and nation, and almost every race in the world is represented among our citizens. They have brought with them their own ways of cooking food, so that our "American" diet is indebted to a dozen peoples. Our turkey, corn, and cranberries come from the Indians. Our salads we borrowed from the French and Italians. Increasingly in recent years we have enriched our tables with soups from Russia, vegetables from Italy, appetizers from the Scandinavian countries, seafoods from the Mediterranean lands, chile and tortillas from Mexico, and so on almost endlessly. At

24

THE RACES OF MANKIND

the same time, everywhere we have gone in the world, we have
popularized ice cream, beefsteak, breakfast cereals, corn on the
cob, and other foods that are called "American."

OUR FOOD COMES FROM MANY PEOPLE'S.

Industry in the United States has taken the hand-skills of our
immigrants and made machines to do the work; without their
skills we should not have known how. Our music, our buildings
have developed from patterns brought to our shores or learned
from every quarter of the world. Our country would be poorer
in every phase of its culture if different cultures had not come
together here, sharing and learning the special contributions each
had to offer.

THE RACES OF MANKIND

25

THE FUTURE OF RACE PREJUDICE

NEVERTHELESS there is race prejudice in America and in the
world. Race prejudice isn't an old universal "instinct." It is
hardly a hundred years old. Before that, people persecuted Jews
because of their religion—not their "blood"; they enslaved
Negroes because they were pagans—not for being black.

Looking back now, moderns are horrified at all the blood that
was shed for centuries in religious conflicts. It is not our custom
any more to torture and kill a man because he has a different
religion. The twenty-first century may well look back on our
generation and be just as horrified. If that century builds its way
of life on the Atlantic Charter—for the whole world—our era
will seem a nightmare from which they have awakened. They
will think we were crazy. “Why should race prejudice have swept
the western world,” they will say, “where no nation was any-
thing but a mixture of all kinds of racial groups? Why did
nations just at that moment begin talking about ‘the racial
purity’ of their blood? Why did they talk of their wars as racial
wars? Why did they make people suffer, not because they were
criminals or double-crossers, but because they were Jews or
Negroes or non-Nordic?”

We who are living in these troubled times can tell them why.
Today weak nations are afraid of the strong nations; the poor
are afraid of the rich; the rich are afraid they will lose their
riches. People are afraid of one another's political or economic
power, they are afraid of revenge for past injuries, they are
afraid of social rejection. Conflict grows fat on fear. And the
slogans against "inferior races" lead us to pick on them as
scapegoats. We pin on them the reason for all our fears.

Race Prejudice Not Inevitable

Freedom from fear is the way to cure race prejudice. When
aggressions like those of the Axis are made impossible by guar-
antees of collective security, those guarantees must cover coun-
tries of all races. Then Nazi race tactics will be outmoded. In any

26

THE RACES OF MANKIND

country every legal decision that upholds equal citizenship rights without regard to race or color, every labor decision that lessens the terror of being "laid off" and gives a man self-respect in his employment, every arrangement that secures the little farmer against losing his acres to the bank—all these and many more can free people from fear. They need not look for scapegoats.

The Russian nation has for a generation shown what can be done to outlaw race prejudice in a country with many kinds of people. They did not wait for people's minds to change. They made racial discrimination and persecution illegal. They welcomed and honored the different dress, different customs, different arts of the many tribes and countries that live as part of their nation. The more backward groups were given special aid to help them catch up with the more advanced. Each people was helped to develop its own cultural forms, its own written language, theater, music, dance, and so on. At the same time that each people was encouraged in its national self-development, the greatest possible interchange of customs was fostered, so that each group became more distinctively itself and at the same time more a part of the whole.

The Russians have welcomed cultural *differences* and they have refused to treat them as *inferiorities*. No part of the Russian program has had greater success than their racial program.

## What Is Being Done?

In the United States a considerable number of organizations are working for democratic race equality. To mention only a few: The East-West Association has done some splendid work in emphasizing the importance of racial understanding, especially between Asiatic and Western peoples. The China Institute is active in promoting the work of Chinese students in America, and the Phelps-Stokes Foundation has brought many African students here, cementing the relation between the two continents.

The Council Against Intolerance in America has a continuous program in the schools. The Council on Intercultural Relations has done much to emphasize the Negro's contribution to American

THE RACES OF MANKIND

27

culture. The Bureau for Intercultural Education interprets the contributions made to America by many different races and nationalities. The Rosenwald Foundation has sponsored southern

FREEDOM FROM FEAR BRINGS FREEDOM FROM PREJUDICE.

Negro schools, elementary, high school, and college, in order to make up for the deficiencies of southern Negro education. They have also pressed for Negro housing and health projects in the North. The National Association for the Advancement of Colored People arranges publicity and fosters public education through periodicals, the radio, and special publications. It fights cases of

28

THE RACES OF MANKIND

discrimination in the courts and tries to get effective laws passed for the protection of Negro rights. The National Urban League helps Negroes who move from rural districts to the cities to find industrial work and proper living conditions.

## THE CHURCHES

Many church bodies have done much to help people realize that ideas of race superiority or inferiority are un-Christian. The Department of Race Relations of the Federal Council of the Churches of Christ in America and the National Conference of Christians and Jews have encouraged collaboration among church leaders interested in interracial cooperation. During World War II, the Executive Committee of the Council called on all local churches to eliminate racial discrimination in their own practices. Church bodies of all faiths have encouraged education for tolerance.

## COMMISSION ON INTERRACIAL COOPERATION

For some twenty years white and Negro leaders of the South have cooperated actively through the Commission on Interracial Cooperation in establishing local committees of both whites and Negroes. This commission has promoted mutual respect and understanding. In many local areas, small groups have worked patiently to increase interracial cooperation.

## BY UNIONS

Among the unions we find that the National Maritime Union has fought and won the right of Negroes to serve as skilled workers instead of in menial jobs only. Today mixed crews on freighters, tankers, and merchant ships are doing a magnificent job without friction. The *Booker T. Washington* with its Negro captain, Hugh Mulzac, is a notable example. The United Auto Workers has an interracial committee with Walter Hardin, a veteran Negro official, as its chairman. At first white workers resisted the right of Negroes to do more skilled kinds of work. For example, when Negroes were first placed on machines previously manned by white operators, a work stoppage shut down a whole section of the Packard plant. R. J. Thomas, the presi-

THE RACES OF MANKIND

29

dent of the union, ordered the white strikers to return to work or suffer loss of union membership and employment. Within a few hours the strikers were back, with the recently promoted Negroes still at their machines.

Besides the National Maritime Union and the Auto Workers, a number of other unions have taken the lead in promoting interracial understanding. They include the International Ladies Garment Workers, the Amalgamated Clothing Workers, the United Electrical Radio and Machine Workers, the Marine Shipbuilding Workers, and the United Rubber Workers. In the Birmingham, Alabama, area there are more than a hundred union locals with both white and Negro members, and the Southern Tenant Farmers Union has a mixed membership.

## THE GOVERNMENT

From the time of Lincoln's Emancipation Proclamation to the present day, the national and state governments have passed laws to carry forward the principles of our Declaration of Independence and our Constitution. In June, 1941, President Roosevelt took direct action in his Executive Order No. 8802 toward eliminating discrimination in employment in plants with war contracts. The Fair Employment Practices Committee was set up and held public hearings in Los Angeles, Chicago, New York, and Birmingham. When an individual applied for a job in a plant doing war work and was refused for reasons of prejudice—because he was a Negro, a Jew, or a naturalized citizen—he could bring his case before the committee, who then called the company to a public hearing. This committee is now part of the War Manpower Commission.

The Negro Manpower Commission of this same body is headed by an able Negro economist and maintains a staff of Negro field representatives attached to the U. S. Employment Service. They also work through the regional offices of the Social Security Board to detect cases of racial discrimination.

The Bureau of Indian Affairs under Commissioner Collier should be mentioned here as a government bureau with a long

30

THE RACES OF MANKIND

record of successful effort for the adjustment of a racial minority.

But at best the government can act only as a policeman, finding a wrongdoer here and there. Only the people themselves can really end racial discrimination, through understanding, sympathy, and public action. But there is evidence that the American people as individuals are beginning to think and to act. One hundred thousand Americans have petitioned the War Department to have at least one division in the Army containing both Negroes and whites. A separate petition was signed by American white men of draft age who asked to be assigned to such a division—many of these were Southerners.

## COMMUNITY ACTIVITIES

In Houston, Texas, the mayor and a group of prominent citizens advertised in the local papers that no disturbance would be tolerated that would blacken the reputation of Houston when the Negroes of that city celebrated Juneteenth Day in honor of the emancipation of the slaves. It began with the statement, "Don't do Hitler's work," and warned citizens not to repeat rumors. The celebration was peacefully carried out. It is unfortunate that in Beaumont, Texas, similar effective action was not undertaken and a serious riot occurred.

## JUST FOLKS

In the most disastrous of recent riots in Detroit, a number of obscure bystanders performed heroic actions.

A white passenger on a street car spoke to the mob and dissuaded them from searching the car.

Two women, a mother and daughter, realizing that the Negro passenger was in danger, sheltered him so that when the rioters looked into the car he was effectively hidden.

In a bus going south recently the white passengers all remained standing rather than occupy the "white" seats of a Jim Crow bus.

During the recent disturbances in New York's Harlem, a group of Negroes stood in front of the restaurant of a white proprietor who had been their friend and in this way protected it from being broken into and destroyed by the mob.

THE RACES OF MANKIND

31

In the last analysis these homely incidents tell the real story. They tell us that the conscience of America is aroused, that there is work to be done, and that some of us are already trying to do it.

## The Challenge

With America's great tradition of democracy, the United States should clean its own house and get ready for a better twenty-first century. Then it could stand unashamed before the Nazis and condemn, without confusion, their doctrines of a Master Race. Then it could put its hand to the building of the United Nations, sure of support from all the yellow and the black races where the war is being fought, sure that victory in this war will be in the name, not of one race or of another, but of the universal Human Race.

## FOR FURTHER READING

* Benedict, Ruth. *Race: Science and Politics*. New York, Modern Age Books. 1940. $2.50

* Brown, Earl, and Leighton, George R. *The Negro and the War*. Public Affairs Pamphlet No. 71. 1942. 10¢

* Crosswaith, Frank R., and Lewis, Alfred Baker. "Discrimination, Incorporated," *Social Action*. New York, Council for Social Action of the Congregational Christian Churches. January 15, 1942. 15¢

* Embree, Edwin R. *American Negroes: A Handbook*. New York, John Day. 1942. Cloth, $1; paper, 40¢

* Fineberg, Solomon Andhil. *Overcoming Anti-Semitism*. New York, Harper & Bros. 1943. $2

* Gould, Kenneth. *They Got the Blame—"Scape-Goats" in History*. New York, Association Press. 1942. 25¢

* McWilliams, Carey. *Brothers Under the Skin*. New York, Little, Brown. 1943. $2.50

*The Negro and Defense*. Democracy in Action Series, No. 3. New York, Council for Democracy. 1941. 10¢

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THE COMMITTEE

<table><tr><td>Ordway Tead, Chairman</td><td>F. Ernest Johnson</td></tr><tr><td>Lyman Bryson, Vice Chairman</td><td>Robert P. Lane</td></tr><tr><td>S. M. Keeny, Secretary</td><td>Francis P. Miller</td></tr><tr><td>Harry D. Gideonse, Treasurer</td><td>Frieda S. Miller</td></tr><tr><td>Beulah Amidon</td><td>Felix Morley</td></tr><tr><td>Earl Brown</td><td>Thomas D. Rishworth</td></tr><tr><td>Raymond Leslie Buell</td><td>Walter R. Sharp</td></tr><tr><td>Frederick V. Field</td><td>Donald Slesinger</td></tr><tr><td>William Trufant Foster</td><td>George Soule</td></tr><tr><td>Luther Gulick</td><td>Mark Starr</td></tr><tr><td>Erling M. Hunt</td><td>William T. Stone</td></tr></table>

William H. Wells

Maxwell S. Stewart, Editor of the Pamphlet Series

Violet Edwards, Education and Promotion

All rights reserved. No part of this pamphlet may be reproduced without permission, except short passages of no more than 500 words in length which may be quoted by a reviewer or commentator, with full credit to the Committee. For permission to use longer excerpts, write to the Public Affairs Committee, Incorporated, 30 Rockefeller Plaza, New York, N. Y.

First Edition, October, 1943

Second Printing, December, 1943

Printed in the United States of America

145

DISCUSS THE PICTURES

**Page 4.** Next time you go to the zoo don't say the monkeys and apes may be your 19th cousins. But all the *people* in the world *have* been your close relatives for a very long time.

**Page 7.** "Tall, dark, and handsome" comes in all races—even the dark. Ideas of beauty change and differ. Venus de Milo doesn't measure up today in the U.S.A. to our glamor girls. Different people have different ideas of glamor: it's not so hard to get used to them, either.

**Page 9.** Close your eyes and put your finger on the map of the world. Wherever your finger touches there will be some people with blood types the same as your own.

**Page 11.** In China there are Jews that look just like Chinese. In Abyssinia there are Jews that look like Abyssinians. In Turkey there are Jews that look like Turks. In England and in Germany there are many blond Jews. (Their faces are not alike.) Jews follow a religion, just as Mohammedans and Christians follow their religions.

**Page 14.** Johnny and Jimmy were twins. Johnny was adopted by a family which gave him love, care, and a good home. Jimmy's foster parents lived in poverty and neglected him. Johnny grew up to be a much kinder and more likable boy than Jimmy. And yet, could Jimmy have been Johnny ... had they changed homes when they were very young?

**Page 15.** Joseph Rheinhardt was born in New York; his parents were white Americans. He was a foundling—a baby sent to China to live with the Chinese family that adopted him. When he was 17 years old he came home and had to study English in an Americanization class. Do you think it was any easier for Rheinhardt to learn English than for Chinese immigrants in his class?

**Page 19.** Among the "International Quiz Kids" are names like Olmstead, Black, Wong, Jefferson, Ryan, Moreno, Frazanelli. Any one of them might be the smartest one of all in tonight's radio program. Race, or nationality, does not put a ceiling on intelligence.

**Page 20.** There is no such thing as a "born fighter." People often are vicious and cruel because they are taught that is the best way to get along. It is just as natural to be cooperative and gentle as it is to be bossy and overbearing. You can bring out either characteristic by the way you bring up a child. His race doesn't decide the matter.

**Page 22.** No race, or people, has a monopoly on inventions. All new inventions are built on old ones, from all times and all places. Even Edison and Steinmetz built on other people's ideas and inventions. You can't tell from a man's looks what he can invent, what he can do for other people.

**Page 24.** Do you know that the only important foods contributed by ancient Europe were—crab apples and hazel nuts? Everything you like to eat, from beefsteak to corn-on-the-cob, comes from the other "races"!

**Page 27.** You smash your finger in the door. Angry, you may kick the door—or feel like kicking it. The door could just as easily be another person—it often is. Things go all wrong in your private world: you look around for someone to blame. That's why some people don't like the poor; others don't like the rich; some—the Chinese, the Negroes, the Jews, the Catholics. Blaming and hating other people, of course, doesn't help you solve your difficulties. It usually hurts you—and the other fellow.

LAW LIBRARY
DEPARTMENT OF THE INTERIOR

SUPREME COURT OF THE UNITED STATES.

No. 51.—OCTOBER TERM, 1943.

Lonnie E. Smith, Petitioner,

vs.

S. E. Allwright, Election Judge,
and James E. Liuzza, Associate
Election Judge, 48th Precinct of
Harris County, Texas.

On Writ of Certiorari to
the United States Circuit
Court of Appeals for the
Fifth Circuit.

[April 3, 1944.]

Mr. Justice REED delivered the opinion of the Court.

This writ of certiorari brings here for review a claim for dam-
ages in the sum of $5,000 on the part of petitioner, a Negro
citizen of the 48th precinct of Harris County, Texas, for the re-
fusal of respondents, election and associate election judges re-
spectively of that precinct, to give petitioner a ballot or to permit
him to cast a ballot in the primary election of July 27, 1940, for
the nomination of Democratic candidates for the United States
Senate and House of Representatives, and Governor and other state
officers. The refusal is alleged to have been solely because of the
race and color of the proposed voter.

The actions of respondents are said to violate Sections 31 and
43 of Title 8¹ of the United States Code in that petitioner was
deprived of rights secured by Sections 2 and 4 of Article I² and

18 U. S. C. § 31:

"All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding."

§ 43: "Every person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the juris-
diction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress."

² Constitution, Art. I:

"Section 2. The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States, and the Electors

APR 7 1944

5

2

Smith vs. Allwright et al.

the Fourteenth, Fifteenth and Seventeenth Amendments to the United States Constitution.³ The suit was filed in the District Court of the United States for the Southern District of Texas, which had jurisdiction under Judicial Code Section 24, subsection 14.⁴

The District Court denied the relief sought and the Circuit Court of Appeals quite properly affirmed its action on the authority of Grovey v. Townsend, 295 U. S. 45.⁵ We granted the petition for certiorari to resolve a claimed inconsistency between the decision in the Grovey case and that of United States v. Classic, 313 U. S. 299. 319 U. S. 738.

The State of Texas by its Constitution and statutes provides that every person, if certain other requirements are met which are not here in issue, qualified by residence in the district or county "shall be deemed a qualified elector." Constitution of Texas, Article VI, Section 2; Vernon's Civil Statutes (1939 ed.), Article 2955. Primary elections for United States Senators, Congressmen and state officers are provided for by Chapters Twelve and Thirteen of the statutes. Under these chapters, the Democratic Party was required to hold the primary which was the

in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

"Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

³ Constitution:

Article XIV. "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Article XV. "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

"Section 2. The Congress shall have power to enforce this article by appropriate legislation."

Article XVII. "The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures."

⁴ A declaratory judgment also was sought as to the constitutionality of the denial of the ballot. The judgment entered declared the denial was constitutional. This phase of the case is not considered further as the decision on the merits determines the legality of the action of the respondents.

⁵ Smith v. Allwright, 131 F. 2d 593.

Smith vs. Allwright et al.

3

occasion of the alleged wrong to petitioner. A summary of the state statutes regulating primaries appears in the footnote.⁶ These nominations are to be made by the qualified voters of the party. Art. 3101.

⁶ The extent to which the state controls the primary election machinery appears from the Texas statutes, as follows: Art. 3118, Vernon's Texas Statutes, provides for the election of a county chairman for each party holding a primary by the "qualified voters of the whole county," and of one member of the party's county executive committee by the "qualified voters of their respective election precincts." These officers have direct charge of the primary. There is in addition statutory provision for a party convention: the voters in each precinct choose delegates to a county convention, and the latter chooses delegates to a state convention. Art. 3134. The state convention has authority to choose the state executive committee and its chairman. Art. 3139, 1939 Supp. Candidates for offices to be filled by election are required to be nominated at a primary election if the nominating party cast over 100,000 votes at the preceding general election. Art. 3101. The date of the primary is fixed at the fourth Saturday in July; a majority is required for nomination, and if no candidate receives a majority, a run-off primary between the two highest standing candidates is held on the fourth Saturday in August. Art. 3102. Polling places may not be within a hundred yards of those used by the opposite party. Art. 3103. Each precinct primary is to be conducted by a presiding judge and the assistants he names. These officials are selected by the county executive committee. Art. 3104. Absentee voting machinery provided by the state for general elections is also used in primaries. Art. 2956. The presiding judges are given legal authority similar to that of judges at general elections. Compare Art. 3105 with Art. 3002. The county executive committee may decide whether county officers are to be nominated by majority or plurality vote. Art. 3106. The state executive committee is given power to fix qualifications of party membership, Art. 3107; Art. 2955, 1942 Supp., requires payment of a poll tax by voters in primary elections, and Art. 3093(3) deals with political qualifications of candidates for nomination for United States Senator. But cf. Bell v. Hill, 123 Tex. 531. Art. 3108 empowers the county committee to prepare a budget covering the cost of the primary and to require each candidate to pay a fair share. The form of the ballot is prescribed by Art. 3109. Art. 3101 provides that the nominations be made by the qualified voters of the party. Cf. Art. 3091. Art. 3110 prescribes a test for voters who take part in the primary. It reads as follows:

"No official ballot for primary election shall have on it any symbol or device, or any printed matter, except a uniform primary test, reading as follows: 'I am a . . . (inserting name of political party or organization of which the voter is a member) and pledge myself to support the nominee of this primary;' and any ballot which shall not contain such printed test above the names of the candidates thereon, shall be void and shall not be counted." This appears, however, to be a morally rather than a legally enforceable pledge. See Love v. Wilcox, 119 Tex. 256.

Arts. 3092 and 3111 to 3114 deal with the mechanics of procuring a place on the primary ballot for federal, state, district, or county office. The request for a place on the ballot may be made to the state, district or county party chairman, either by the person desiring nomination or by twenty-five qualified voters. The ballot is prepared by a subcommittee of the county executive committee. Art. 3115. A candidate must pay his share of the expenses of the election before his name is placed on the ballot. Art. 3116. Art. 3116, however, limits the sum that may be charged candidates for certain posts, such as the offices of district judge, judge of the Court of Civil Appeals,

4

Smith vs. Allwright et al.

The Democratic Party of Texas is held by the Supreme Court of that state to be a "voluntary association," *Bell v. Hill*, 123 Tex. 531, 534, protected by Section 27 of the Bill of Rights, Art. 1, Constitution of Texas, from interference by the state except that:

and senator and representative in the state and federal legislatures, and for some counties fees are fixed by Arts. 3116 a-d, 1939 Supp., and 3116 e-f, 1942 Supp. Supplies for the election are distributed by the county committee, Art. 3119, and Art. 3120 authorizes the use of voting booths, ballot boxes and guard rails, prepared for the general election, "for the organized political party nominating by primary election that cast over one hundred thousand votes at the preceding general election." The county tax collector must supply lists of qualified voters by precincts; and these lists must be used at the primary. Art. 3121. The same precautions as to secrecy and the care of the ballots must be observed in primary as in general elections. Art. 3122. Arts. 3123-25 cover the making of returns to the county and state chairmen and canvass of the result by the county committee. By Art. 3127, a statewide canvass is required of the state executive committee for state and district officers and a similar canvass by the state convention, with respect to state officers, is provided by Art. 3138. The nominations for district offices are certified to the county clerks, and for state officers to the Secretary of State. Arts. 3127, 3137, 3138. Ballot boxes and ballots are to be returned to the county clerk, Art. 3128, 1942 Supp., and upon certification by the county committee, the county clerk must publish the result. Art. 3129, 1942 Supp. If no objection is made within five days, the name of the nominee is then to be placed on the official ballot by the county clerk. Art. 3131, 1942 Supp. Cf. Arts. 2978, 2984, 2992, 2996. Arts. 3146-53, 1942 Supp., provide for election contests. The state district courts have exclusive original jurisdiction, and the Court of Civil Appeals has appellate jurisdiction. The state courts are also authorized to issue writs of mandamus to require executive committees, committee-men, and primary officers to discharge the duties imposed by the statute. Art. 3142; cf. Art. 3124.

The official ballot is required to contain parallel columns for the nominees of the respective parties, a column for independent candidates, and a blank column for such names as the voters care to write in. Arts. 2978, 2980. The names of nominees of a party casting more than 100,000 votes at the last preceding general election may not be printed on the ballot unless they were chosen at a primary election. Art. 2978. Candidates who are not party nominees may have their names printed on the ballot by complying with Arts. 3159-62. These sections require applications to be filed with the Secretary of State, county judge, or mayor, for state and district, county, and city offices, respectively. The applications must be signed by qualified voters to the number of from one to five per cent of the ballots cast at the preceding election, depending on the office. Each signer must take an oath to the effect that he did not participate in a primary at which a candidate for the office in question was nominated. While this requirement has been held to preclude one who has voted in the party primary from appearing on the ballot as an independent, Westerman v. Mims, 111 Tex. 29, 227 S. W. 178; see Cunningham v. McDermott, 277 S. W. 218 (Civ. App.), one who lost at the primary may still be elected at the general election by a write-in vote. Cunningham v. McDermott, *supra*.

The operations of the party are restricted by the state in one other important respect. By Art. 3139, 1939 Supp., the state convention can announce a platform of principles, but its submission at the primary is a prerequisite to party advocacy of specific legislation. Art. 3132.

Smith vs. Allwright et al.

5

"In the interest of fair methods and a fair expression by their members of their preferences in the selection of their nominees, the state may regulate such elections by proper laws." P. 545. That court stated further:

"Since the right to organize and maintain a political party is one guaranteed by the Bill of Rights of this State, it necessarily follows that every privilege essential or reasonably appropriate to the exercise of that right is likewise guaranteed,—including, of course, the privilege of determining the policies of the party and its membership. Without the privilege of determining the policy of a political association and its membership, the right to organize such an association would be a mere mockery. We think these rights,—that is, the right to determine the membership of a political party and to determine its policies, of necessity are to be exercised by the State Convention of such party, and cannot, under any circumstances, be conferred upon a State or governmental agency." P. 546. Cf. *Waples v. Marrast*, 108 Texas 5.

The Democratic party on May 24, 1932, in a State Convention adopted the following resolution, which has not since been "amended, abrogated, annulled or avoided":

"Be it resolved that all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the State shall be eligible to membership in the Democratic party and, as such, entitled to participate in its deliberations."

It was by virtue of this resolution that the respondents refused to permit the petitioner to vote.

Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution or in conflict with powers delegated to and exercised by the National Government.⁷ The Fourteenth Amendment forbids a state from making or enforcing any law which abridges the privileges or immunities of citizens of the United States and the Fifteenth Amendment specifically interdicts any denial or abridgement by a state of the right of citizens to vote on account of color. Respondents appeared in the District Court and the Circuit Court of Appeals and defended on the ground that the Democratic party of Texas is a voluntary organization with members banded together for the purpose of selecting individuals of the group representing the common political beliefs as candidates in the general election. As such a voluntary or-

⁷ Cf. Parker v. Brown, 317 U. S. 341, 359-60.

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ganization, it was claimed, the Democratic party is free to select its own membership and limit to whites participation in the party primary. Such action, the answer asserted, does not violate the Fourteenth, Fifteenth or Seventeenth Amendment as officers of government cannot be chosen at primaries and the Amendments are applicable only to general elections where governmental officers are actually elected. Primaries, it is said, are political party affairs, handled by party not governmental officers. No appearance for respondents is made in this Court. Arguments presented here by the Attorney General of Texas and the Chairman of the State Democratic Executive Committee of Texas, as amici curiae, urged substantially the same grounds as those advanced by the respondents.

The right of a Negro to vote in the Texas primary has been considered heretofore by this Court. The first case was *Nixon v. Herndon*, 273 U. S. 536. At that time, 1924, the Texas statute, Art. 3093a, afterwards numbered Art. 3107 (Rev. Stat. 1925) declared "in no event shall a Negro be eligible to participate in a Democratic Party primary election in the State of Texas." Nixon was refused the right to vote in a Democratic primary and brought a suit for damages against the election officers under R. S. § 1979 and 2004, the present sections 43 and 31 of Title 8, U. S. C., respectively. It was urged to this Court that the denial of the franchise to Nixon violated his Constitutional rights under the Fourteenth and Fifteenth Amendments. Without consideration of the Fifteenth, this Court held that the action of Texas in denying the ballot to Negroes by statute was in violation of the equal protection clause of the Fourteenth Amendment and reversed the dismissal of the suit.

The legislature of Texas reenacted the article but gave the State Executive Committee of a party the power to prescribe the qualifications of its members for voting or other participation. This article remains in the statutes. The State Executive Committee of the Democratic party adopted a resolution that white Democrats and none other might participate in the primaries of that party. Nixon was refused again the privilege of voting in a primary and again brought suit for damages by virtue of Section 31, Title 8 U. S. C. This Court again reversed the dismissal of the suit for the reason that the Committee action was deemed to be State action and invalid as discriminatory under the Fourteenth Amendment.

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The test was said to be whether the Committee operated as representative of the State in the discharge of the State's authority. *Nixon v. Condon*, 286 U. S. 73. The question of the inherent power of a political party in Texas "without restraint by any law to determine its own membership" was left open. *Id.*, 84-85.

In *Grovey v. Townsend*, 295 U. S. 45, this Court had before it another suit for damages for the refusal in a primary of a county clerk, a Texas officer with only public functions to perform, to furnish petitioner, a Negro, an absentee ballot. The refusal was solely on the ground of race. This case differed from *Nixon v. Condon*, *supra*, in that a state convention of the Democratic party had passed the resolution of May 24, 1932, hereinbefore quoted. It was decided that the determination by the state convention of the membership of the Democratic party made a significant change from a determination by the Executive Committee. The former was party action, voluntary in character. The latter, as had been held in the *Condon* case, was action by authority of the State. The managers of the primary election were therefore declared not to be state officials in such sense that their action was state action. A state convention of a party was said not to be an organ of the state. This Court went on to announce that to deny a vote in a primary was a mere refusal of party membership with which "the state need have no concern," *loc. cit.* at 55, while for a state to deny a vote in a general election on the ground of race or color violated the Constitution. Consequently, there was found no ground for holding that the county clerk's refusal of a ballot because of racial ineligibility for party membership denied the petitioner any right under the Fourteenth or Fifteenth Amendments.

Since *Grovey v. Townsend* and prior to the present suit, no case from Texas involving primary elections has been before this Court. We did decide, however, *United States v. Classic*, 313 U. S. 299. We there held that Section 4 of Article I of the Constitution authorized Congress to regulate primary as well as general elections, 313 U. S. at 316, 317, "where the primary is by law made an integral part of the election machinery." 313 U. S. at 318. Consequently, in the *Classic* case, we upheld the applicability to frauds in a Louisiana primary of §§ 19 and 20 of the Criminal Code. Thereby corrupt acts of election officers

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were subjected to Congressional sanctions because that body had power to protect rights of Federal suffrage secured by the Constitution in primary as in general elections. 313 U. S. at 323. This decision depended, too, on the determination that under the Louisiana statutes the primary was a part of the procedure for choice of Federal officials. By this decision the doubt as to whether or not such primaries were a part of "elections" subject to Federal control, which had remained unanswered since New-berry v. United States, 256 U. S. 232, was erased. The Nixon Cases were decided under the equal protection clause of the Fourteenth Amendment without a determination of the status of the primary as a part of the electoral process. The exclusion of Negroes from the primaries by action of the State was held invalid under that Amendment. The fusing by the Classic case of the primary and general elections into a single instrumentality for choice of officers has a definite bearing on the permissibility under the Constitution of excluding Negroes from primaries. This is not to say that the Classic case cuts directly into the rationale of Grovey v. Townsend. This latter case was not mentioned in the opinion. Classic bears upon Grovey v. Townsend not because exclusion of Negroes from primaries is any more or less state action by reason of the unitary character of the electoral process but because the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the state. When Grovey v. Townsend was written, the Court looked upon the denial of a vote in a primary as a mere refusal by a party of party membership. 295 U. S. at 55. As the Louisiana statutes for holding primaries are similar to those of Texas, our ruling in Classic as to the unitary character of the electoral process calls for a reexamination as to whether or not the exclusion of Negroes from a Texas party primary was state action.

The statutes of Texas relating to primaries and the resolution of the Democratic party of Texas extending the privileges of membership to white citizens only are the same in substance and effect today as they were when Grovey v. Townsend was decided by a unanimous Court. The question as to whether the exclusionary action of the party was the action of the State persists as the determinative factor. In again entering upon consideration of

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the inference to be drawn as to state action from a substantially similar factual situation, it should be noted that Grovey v. Townsend upheld exclusion of Negroes from primaries through the denial of party membership by a party convention. A few years before this Court refused approval of exclusion by the State Executive Committee of the party. A different result was reached on the theory that the Committee action was state authorized and the Convention action was unfettered by statutory control. Such a variation in the result from so slight a change in form influences us to consider anew the legal validity of the distinction which has resulted in barring Negroes from participating in the nominations of candidates of the Democratic party in Texas. Other precedents of this Court forbid the abridgement of the right to vote. United States v. Reese, 92 U. S. 214, 217; Neal v. Delaware, 103 U. S. 370, 388; Guinn v. United States, 238 U. S. 347, 361; Myers v. Anderson, 238 U. S. 368, 379; Lane v. Wilson, 307 U. S. 268.

It may now be taken as a postulate that the right to vote in such a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution. United States v. Classic, 313 U. S. at 314; Myers v. Anderson, 238 U. S. 368; Ex parte Yarborough, 110 U. S. 651, 663 et seq. By the terms of the Fifteenth Amendment that right may not be abridged by any state on account of race. Under our Constitution, the great privilege of choosing his rulers may not be denied a man by the State because of his color.

We are thus brought to an examination of the qualifications for Democratic primary electors in Texas, to determine whether state action or private action has excluded Negroes from participation. Despite Texas' decision that the exclusion is produced by private or party action, Bell v. Hill, supra, Federal courts must for themselves appraise the facts leading to that conclusion. It is only by the performance of this obligation that a final and uniform interpretation can be given to the Constitution, the "supreme Law of the Land." Nixon v. Condon, 286 U. S. 73, 88; Standard Oil Co. v. Johnson, 316 U. S. 481, 483; Bridges v. California, 314 U. S. 252; Lisenba v. California, 314 U. S. 219, 238; Union Pacific R. Co. v. United States, 313 U. S. 450, 467; Drivers Union v. Meadowmoor Co., 312 U. S. 287, 294; Chambers v. Florida, 309 U. S. 227, 228. Texas requires electors in a primary to pay a