The prosecuting attorney also showed that the Indian was a chronic lawbreaker.

'Helps my case,' murmured Gates, and he waived cross-examination again. Next it was proved that the Indian had been repeatedly warned, that his fish, game, and nets had been often confiscated, that he had been arrested and sent to jail, and that he blamed it all on the game-warden. Gates smiled, as if this were quite in line with his plans, and waived cross-examination.

The actual killing being admitted, and having proved, to his own satisfaction, that the warden was acting in the line of his duty, that he had been tolerant, that his feeling for the Indian was one of pity rather than anger, and that the Indian had a motive for the deliberate murder that he evidently committed, the prosecuting attorney rested his case.

Gates, for the defense, put the Indian on the stand. This was a surprise, for it seemed to open a way for the prosecution to show on cross-examination that the warden was in no sense the aggressor. But the Indian proved a difficult witness. He admitted the killing, of course, but, beyond that, even Gates could get no more out of him than, 'Him break treaty - make all time hell for me,' or 'Him no let live, so me kill.'

Whatever the question, the answer usually took one of these forms. It seemed almost as if Gates had coached him, and the prosecution quickly realized that every repetition served to emphasize the fact that the Indian believed he was being unwarrantably persecuted, and, driven to desperation, had sought to end that persecution in the only way that seemed possible to one of his primitive instincts. In effect, the situation presented, indirectly, extenuating circumstances. So the crossexamination was quickly dropped.

The squaw followed, and she was an equally difficult witness. Still, under skillful questioning, she did succeed in making it clear that the activity of the warden left them often hungry, there being neither fish nor game to eat, and no money wherewith to buy anything else.

Here Gates changed the line of his defense, and, first proving the descent of the Indian, then offered in evidence a copy of the treaty with the United States Government, that gave these Indians the right to hunt and fish on the ceded lands.

The prosecuting attorney immediately objected, and the judge asked Gates what he expected to prove by it.

'I expect to prove,' was the reply, 'that the warden was an aggressor, that he had exceeded his authority in practically all his dealings with this Indian, that he had deprived the Indian of rights guaranteed him by the United States Government, that it was the warden who was the law-breaker, and that the Indian, up to the moment of the killing, was wholly within his legal rights. That there was no personal malice or unlawful intent on the part of the warden in this matter is of no consequence; he did hound and persecute this Indian, and I wish to show that the Indian acted in defense of actual, not imagined, rights. Your honor will see that everything in this case depends upon which was and had been the real law-breaker when they last met.'

The judge turned to the prosecuting attorney, and the prosecuting attorney again objected.

The whole case hinged upon that treaty, and each lawyer saw that success or failure depended upon whether or not it was allowed to be put in evidence. So far as Gates was concerned, it was the keystone of his whole case. Without it, there was absolutely no

thing upon which to hang a plea of even partial justification, nothing but the mere fact that the Indian, believing himself in the right, had defied and finally killed an official for doing his duty. So Gates went over the ground again, being careful to see that no link was missing. The Indian was a descendant of the tribe, the tribe had made the treaty with the government, the treaty never had been abrogated, the rights under it still belonged to the Indian, and it was proper to show, in extenuation of his act, that he had these rights, and was acting in defense of them.

The prosecuting attorney replied that there was no treaty. It was quite impossible that there should be any treaty. The Indian, under the Indian Appropriation Act of 1871, was held to be incapable of contracting treaty obligations. He was to be considered as either a citizen or a ward of the government, and in neither of these capacities was it possible for him to make a treaty. True, the act in question expressly stated that it was not to be construed as invalidating any existing treaty, but there had been no existing treaty in this case certainly none covering this point.

The prosecuting attorney was an older and more experienced man than Gates, and it was evident that he had foreseen and prepared for this question. His calm denial of the existence of a treaty that had just been offered in evidence was staggering. Gates was inclined to doubt the evidence of his own senses, but he managed to call attention to the fact that he had already produced a copy of the document.

'Oh, that was abrogated long ago,' was the reply. "The Indians may not have known exactly what happened to them, but that does not alter the facts. The form and the words still remain, but as a valid treaty it passed out of

existence long before the Indian Appropriation Act became a law.'

The prosecuting attorney was unpleasantly patronizing and confident. The treaty, he said, was made previous to the admission of the state to the Union. The state had then been admitted 'on an equal footing with the original states,' and the act contained no reservation as to rights of Indians under treaties, and no mention of any special privileges granted to or held by any Indians. It had been held in at least two states, Wyoming and Wisconsin, that the admission of a state on an equal footing with other states abrogates, by implication, the treaties with Indians which grant them privileges inconsistent with the sovereignty of the state, or the rights and powers possessed by other states. In support of this he quoted from the decision in the Wyoming case of Ward vs. Race Horse:

'Determining the question whether the provisions of a treaty giving the right to hunt upon unoccupied lands of the United States in the hunting districts, are repealed in so far as the land in such districts is now embraced within the State of Wyoming, it becomes plain that the repeal results from the conflict between a treaty and the act admitting that state into the Union.'

The Wisconsin case, State vs. Morrin, was to similar effect:

"The Act of Congress admitting Wisconsin into the Union on an equal footing with the other states abrogated the stipulations of the treaty of March 28, 1843, with the Chippewa Indians, respecting their right to hunt and fish within the borders of the state, so that thereafter they were subject to the laws of the state in that regard.'

'So I submit, your honor,' he said in conclusion, 'that this so-called treaty is no better than waste paper and should not be admitted in evidence.'

'Ruled out,' decided the judge. Gates saw his case crumbling, and he was desperate. He listened gloomily to the brief and formal statement of the case by the prosecuting attorney, and he became bitter. His case had collapsed, had become so weak that the prosecution deemed it hardly worth while to argue the question at all; his client had not even had the poor satisfaction of having his rights taken from him openly and boldly, but had been cunningly deprived of them, without his knowledge, by implication. By implication! An Indian, who at best would have difficulty in comprehending laws that dealt with him directly and frankly, was now told that his treaty had been nullified by inference. The idea rankled. He based his brief address to the jury on it.

"The tribe had these rights,' he said, 'and they should have descended to this Indian among others. The promise was made that they would so descend, but they were taken away by implication - not honestly and openly, in a way that the Indian could understand, but by implication, by inference. The Indian never knew that he had legally lost them; he thought all his troubles were due to one man; he does n't understand it yet. Uncle Sam put the little pea under the walnut shell, but it was n't there when the Indian lifted the shell. The Indian is still wondering what happened.

""Where's my treaty?" he asks. "I had it, I thought I had it, and then I did n't have it, but you got all you bargained for you never discovered anything wrong until it became inconvenient for you to carry out your share of the contract."

"I don't really know what became of that treaty," says Uncle Sam. "It looked perfectly good the last time I

noticed it, but somewhere in the course of a transfer it got frost-bitten or burned up or something. All I know about it now is what my courts tell me, and they are sometimes rather hazy and difficult to understand. I'm mighty sorry about this. You certainly had some treaty rights, but they seem to have vanished, and I'm not sure just when or how it all happened."

'And if Uncle Sam is puzzled,' demanded Gates, 'how can you expect an Indian to understand?'

More there was in explanation of the Indian's point of view and in sarcastic arraignment of the government's treatment of him, much of which might have been excluded had the prosecution cared to object, but it had no bearing on the material facts, and the prosecution did not object. The prosecuting attorney, while in no sense condoning the crime, was sorry for the Indian.

The foreman of the jury also found something in the Indian's plight to excite sympathy. "The old buck has certainly been given the worst of it all along the line,' he remarked carelessly, when the jury had retired, but he killed Jim Tansey, and we don't have to bother about the rest of it.' So the verdict was 'Guilty as charged,' and it was reached without discussion.

'To be hanged by the neck until dead,' was the important detail of the sentence pronounced by the judge.

There was a silence then, which was broken only when the sheriff led the Indian back to his cell.

The jurors were thanked and discharged, the lawyers left, and the judge leaned back in his chair, and gazed moodily at the ceiling.

'I can't help being sorry for that Indian,' the judge finally muttered, and then, straightening up,

'Call the next case.'

I

THE archaic character of Southern ante-bellum society is illustrated by the rapidity with which since its collapse it has fled back in historical perspective to join the forms with which it should properly have been contemporary. It disappeared, not as things so widespread generally disappear in real life, a little at a time, and so gradually that the participants hardly notice the change. On the contrary, it disappeared as things do in dreams; it was held together, like M. Waldemar, by mesmeric passes, and when they were interrupted it was found to have been dead some time. It became immediately the theme of legend as though it had thriven in the ninth century, instead of in the nineteenth. Like most other archaic social forms, it has left but an unsatisfying documentary basis for history.

For the hundredth time fiction is proved to be incomparably more enduring than life, and Uncle Tom's Cabin bids fair to be the form in which posterity will see the age of which it is so bewildering a mixture of 'Dichtung und Wahrheit.' The Homeric poems and the romances of chivalry, the Hebrew Scriptures and Uncle Tom, have established ideas against which the scientific historian, if we may assume his existence, can but file his exceptions; the jury will not heed his technicalities. The South cried out against Uncle Tom, but was unable to oppose it by a similarly persuasive work of

fiction; and fiction appears to be the only form of statement that in the long run carries conviction.

So far as the voice of the South itself has been effective in helping to shape the myth, it has spoken chiefly through the lips of amiable and estimable old ladies recalling honestly, but uncritically, the days of their youth. This is a class of literature in which, notoriously, dimensions expand and colors grow bright. After a course of it the reader who visits the physical remains of its world is amazed by their shrinkage. At Monticello and Mount Vernon the traveler feels, it is true, a touching and imperishable charm; but it is the charm of modesty, not the charm of grandeur. And apart from the historic seats of the mighty, he searches in vain for the stately mansions of his fancy. Surely they were not all burned by Yankee raiders or riotous freedmen. 'Stately mansions' is, in fact, very strong language. The traveler would not immediately recognize as deserving it the large two-storied house of wood or brick, with its double gallery, that formed the well-to-do planter's residence.

The archaic lady of the South obeyed a law of her being in leaving very little written record of herself. Ladies from the real world penetrated into her territory from time to time, and gave accounts of what they saw. Two Englishwomen could hardly be more unlike in temperament and antecedents than Miss Martineau and Fanny Kemble, but they differed far more from

the Southern lady than from each other. They agreed in approaching the South with a lively interest, and each was stirred to write excellently in her own way of what she found. In the North a rather remarkable group of women arose in the second quarter of the nineteenth century, able to think and to speak, who associated, with a profounder logic than they were perhaps themselves aware of, the political and social limitations of women with those of the slave. A really noble eloquence sprang from the enthusiasm of Lucretia Mott.

The lady of the South was equally enthusiastic. The time came when she sincerely believed that the chief end of slavery was the good of the slave. But she was unable to say so. She could suffer for her faith, see her sons die for it, cherish it long after the men who fought for it had laid it aside; but it never stirred her to effective defense of it. This is not attributable to any inherent defect in it; causes just as bad have been movingly and triumphantly argued. It is not attributable to any lack on the part of the Southern lady of the talents that we call literary; for soon after the war she gained a creditable place among American men and women of letters. The trouble was that the social system based on slavery discouraged general mental effort both in men and women, but especially in women. The planter's high gifts of intelligence were concentrated on keeping his balance, and the lady in an even higher degree must make no gesture outside her prescribed rôle. Though the exigencies of the situation often made him a shrewd debater and a vigorous orator, they had no analogous effect upon his wife.

The truth is that in the days of slavery nobody was free at the South. The planter, whose autocracy was his boast, who contrasted himself with the

men of other communities as being more completely a free agent than they, submitted to enact laws for himself that no other Anglo-Saxon society in the world at that time would have endured.

It may not be surprising that Louisiana, with its exotic social ideas, should make 'imprisonment at hard labor not less than three years nor more than twenty-one years, or death, at the discretion of the court,' the punishment for one who 'shall make use of language in any public discourse . . . or in private discourses, or shall make use of signs or actions having a tendency to produce discontent among the free colored population of this state, or to excite insubordination among the slaves.' But it is hard to believe that the Code of Virginia of 1849 abridged the freedom of speech and press.

As the slave was a chattel of the owner, who could do what he liked with him except kill him (otherwise than 'by accident in giving such slave moderate correction'), it would seem evident that he could, if he liked, set him free. In Virginia he could generally do so, by his last will or by deed, provided his creditors were not prejudiced; though the Revised Code attached to the permission to emancipate, a rider that contained the oddest rapprochement of barbarism and civilization: 'If any emancipated slave (infants excepted) shall remain within the state more than twelve months after his or her right to freedom shall have accrued, he or she shall forfeit all such right, and may be apprehended and sold by the overseers of the poor, etc., for the benefit of the Literary Fund.'

But in several states an act of the legislature was required to allow a man to relinquish his property. In Georgia the penalty for attempting to free a slave in any other way was not to exceed one thousand dollars. In the