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GIVEN BY
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Best'des th,e maz'n tojz'c tIn's book also treats of
Subject No, Onjage Subject No. Onjage
, ;
.1
. .
. I .
STUDIES IN GREEK ALLEGORICAL
INTERPRETATION
I. SKETCH OF ALLEGORICAL INTERPRETA-
TION BEFORE PLUTARCH.
11. PLUTARCH.
A DISSERTAT[ON
SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF ARTS
AND LITERATURE; IN CANDIDACY FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
(DE.PARTMENT OF GREEK)
BY
ANNE BATES HERSMAN
..
CHICAGO
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PREFACE.
Part I of this study is not an treatment of allegorical
interpretation in Greek literature before the eml of the first cen-
tury of our era. It is an attempt to show the motives of such in-
terpretation, its beginnings and various developments, together
with comment on some other results of that spirit of criticism out
of which grew aJlegoristic. Part 11 is an account of the religious
beliefs of :Plutarch, the foremost Greek writer of his agc, and of
what he thought of religious tradition and its relation to philo.
sophical thought and nloral conduct.
I wish to express my indebtedness to Professor Shorey of the
University of Chicago, who has from time to time read my manu-
script and given me helpful suggestions and criticisms. The sub-
subject itself grew out of a larger one suggested by him, namely Plu-
tarch's literary criticism. To his aid and criticism the dissertation
owes any value that it may possess. Thfy obligation to Professor
Breasted is expressed on page 62 f. n.
"La Critique des Traditions Religieuses chez les Hrecs,:' by
P. Decharme, came into my hands only after this paper had been
l:\ent to the printer. Much of the book would have heen useful for
comparison, particularly the following pages: . The preface, on the
attitude of the Greeks towards their religion; cf. below p. 1 foIl.
Page X, on allegorisis, and XII., some interpreters held that the
myth-makers were in possession of a broad science.; cf. below Zeno
and Plutarch. p.age 10 foIl., some parts of Hesiod's Theogony are .
conscious allegory. Page 119, the images of Democritus were real
beings, hut, page 457, not demons in the sense in which Xenocrates
and later writers used this term; cf. below p. 14. Page 240
foIl., Aristotle's attitude towards myths was that of an allegorist;
cf. below p. 8 f. n. 11 and pp. 9, 10. Page 270 foIl., a history of alle-
gOI'ical interpretation before the St.oics. Page 28:3, !tietrodorus alle-
gorized the heroes; Decharine refers to Tatian and Hesychius, but
does not mention the fragment of the Herculanean Rolls; he
neglects the in the Tatian passage; cf. helow p. 11 foIl. Page
289, there is not enough left of the work of Antisthenes to justify
a statemem.t of his method of int.erpreting the poets; the fragments
in the scholia on the Odyssey are not allegorical; cf. below p. 16.
Page 305 foIl., Stoic exegesis. Page 370 foIl., Euhemerism.
Page 414 foIl., especially page 426 foIl., religious views of Plutarch.
Page 465 foIl., Plutarch's interpretation of sacred tradition. Page
477, on Plutarch's rejection of Stoic allegoristic; cf. below pp. 37, 52.
AN NE BATES HERSM:AN.
June, 1905, Chicago.
1
This Wiis in the printer's hands in June
1
19(}5. The
publication has been delayed nearly a year on aCGount of accidents
Etiid misfortunes in the printing press. A, B. H, .
May! ]906.
PARTIAIJ LIST OF 'WORKS CONSULTED.
, .' ' t,
The following modern authorities have been particularly help-
ful. They will be quoted merely by the name. References to Zeller
without the name of the work will be to his Historv of Greek
Philosophy. Other authorities will be referred to in the footnotes:
Grote, History of Greece . I. c. 16.
Zeller, Gesch. Gr. Phil., under special names or schools. IV. 322
!t ;'n.' 1, a short account of the rise and causes of allegoristic, and
of its exponents.'
Sengebusch, Horn. Dis. I .
. Wolff, Prolegomena, especially 161.
Gruppe, Gr. Culte u. My then I. 14 foIl. 24 foIl., allegoris-
tic; especially as it appears in Heraclitus and Coroutus. 28, 29, a
summing up of the unsatisfactory accomplishment of allegorical
interpretation. Cf. Lobeck 11. 1050 foIl.
Hirzel, Untersuch. z Cic .. Phil. Schr.
Krische, Forschurigen. Die Thool. Lehr. d. Gr. Denker I.
Schrader, Porph. Quaest. Horn. 11. Proleg. c. 3, parts 11 and Ill.
Schow, introduction in' his edition of Heraclitus Alleg. Horn.
Lobeck, Aglaophamus I. Especially 155 foIl.
S-chlemm. De font. Plut. corn. de aud. po. 32 foIl.
Heinze, Xenokra.tes.
Lehrs. AristaJ."chus Ill. c. 4, p. 201 foll.
J ebb, Introduction to Homer 80, 89.
Stallbaum, on Plato, Ion. 530 D.
Amoneit, De Plut. Stud. H:om. 15, fol1.
Christ, Gesch. d. Gr. Lit. 63.
Pearson, Fragments of Zeno and Cleanthes.
Arnim.. Stoic. Vet. Fr 11.
Diels, Fr. d. Vorsokratiker.
Zeller, Stoics, Epicureans and Sceptics, translated by Reichel p.
354 foIl.
Siegfried, Philo VOIlI Alex. P. 9 foIl. on the Stoics; 160 foIl. on
:Philo.
Bernays, Phi!. Unzers. d. Wcltalls, 30 foIl.
Wyttenbach, notes on de aud. po. and on de Is. in his edition of
PIut. Mor.
Volkmann, Plutarch.
Oakesmith, The Religion of Plutarch.
Parthey, Introduct.ion! and Notes in his edition of de Is.
Erman, Life in Ancient Egypt, translated by Tirard.
Lafaye, Les divinites d' Alex. hors de
3
CONTENTS.
PART Io Historical Sketch. 0 0 '( -23
Introduction ...... 0 0 " 7-10
Plato .......... ' ............................ 0 0 0 8
XenophoD ............... 0 0.' 0 0.00.00.000.0000 9
Aristotle ....................... 0 0 0 0 9
Early Homeric Allcgorists. 0 0 0 0 0 0 0 0 0 0 0 0 0 10-13
Theagenes ... 0 0 000000 00... 10
Heracliteans 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10
Followers of Thale.s ................. ' ....... 00. 10
Anaxagoras . 0 0 0 11
Metrodorus, .. 0 0 0 11
Stesimhrotus ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Glaucon (Glaucus) .................................... 0 12
Anaximander ........................................... 13
Other Writers ................ 0 ~ 0 13-16
Euripides .. 0 0 13
Critias ................................................. 13
Democritus ........................................... 13
Prodicus ............................................... 14
Euhemerus ...... '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Palaephatus '0....................................... ... 15
PolyiJ.ius ........................................ 0 15
Diodorus ............................................... 15
Agroetas ............................................... 15
Theophra,stus ........................................... 15
Herodorus .............................................. 15
Hecataeus .............. 0 15
Ephorus ............................ ,................... 16
Herodotus .. 0 16
Cynics ..................... , . . . . . . . . . . . . . . . . . . . . . .. 16, 17
Antisthenes ............................................ 16
Diogenes ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stoics ............................................ 17-22
Zeno .................................................. 19
Cleanthes .................... ., ....... ,.,............. 20
Chrysippus ............................................. 20
Heraclitus ..................................... ........ 21
C,ornutus ............................................... 21
Philo ....................... .......................... 22
Gramma.rians 23
Aristarchus ............................................. 23
Crates ........................................ ........ 23
PART 11. Plutarch............................... .
Introduction ..................................... ",'.
Religious views ....................... , .............. ' .. ' ..
Attitude towards tradition .. , .......................... '.
Attitude towards poetry ............................ ' ... .
Attitude towards myths ... , ............................ .
Euhemerism . ................................... .
Demons ........................................
Attitude towards rites ..................................
Allegorical Interpretation ............ : ............ , .
/., :.1 Principles " ' ........... ' ............ ' ......... ' ....... "
myth not naive ................................ .
Plutarch not a rationalist ............... '.' .. , ...............
SQmetimes historical ............. : .. ; . : .. ; .............. .
FiguratIve use of, words ........ ' ... . '. ' .... '. ' .............
Right use of metaphor .................................
The Isis Myth. ..............................
Osiris the moist ...........................
'.rwo opposed wot"ld principles ......................
.. ...................................
Physical . .... ' .............................
Animal worship .............................. , ...
Images of the gods ...............................
Osiris lord of Hades .............................
APPENDIX I. Numbers. . . . . . . . . . ... '. . . ........... .
APPENDIX 11.
IBis myth ..............................
Plutarch on hieroglyphics .............................
Plutarch on Egyptian etymologies ........................ .
Authorities named by Plutarch ......................
6
25-64
25-32
211
2b
26-29
29-31
31
"'3-1
al
32-57
32-08
33
34
34
36
as
38-56
40-45
45
46-50
51,52
53
54
5ti
59,60
61-61t
61
62
63
63,64
PART 1. HISTORICAL SKETCH.
In their moral anil. mental development! the Greeks ca.me to a
point when their traditional religion and history no longer satisfied
them. They must either renounce or modify their beliefs. Xen-
ophanes
2
boldly pronounced Homer and Hesiod immoral a.nd un-
worthy of belief. Pindar
3
rejected particular stories that ottendeir
his ideas the gods. Others st.m the truth of the
myths, but conceived some hidden meaning intended by t.he original
nmkers. They &elem sometimes to have thought that the mean-
ing wae not intentionally obscured, but had been later misunder-
sttood';at other times they described the myth-makers as conceal-
ing the true doctrine under symbols and enigmas. There were
speculations about the origin of all religious beliefs, or about the
origin of particular traditions or observances.
8
Allegorical interpretation became an intellectual and moral
necessity, either to preserve one's own or to account for the
faith of others. However, all figurative use of the names of the
gods must not be considered as allegorical.
T
"Then Empedocles
called hy the title Aphrodite the force that draws together unlike
elements and so creates a complex world. he did not himself believe
that the god worshipped under that name was only a vivid repre-
sentation of a force; nor did he mean to imply that and myth.
makers had known his scheme of the universe, and had described
Aphrodite and established her worship as a riddle of the truth.
There were points. in common between the god and the t.hing over
which he presided; the philosopher recognized the likeness by a
metaphorical transference of the name. This is allegory, not alle-
t For a discussion of the attitude of the Greeks themselves to theil' own
tradition, and of the causes of change in attitude, see Grote, I. ch. 16. For
short histJo[j1 of allegoricaJ interpretation, Zeller Ill. 322 f. n. 1.
2 Diog. L. IX. 18 and 11. 46. Sextus Math. IX. 193 and I. 224.
'Olymp. 1, 52 foIl.; ib. 36 foIl.; see Croiset, La Poesie de Pindllre, lS5, 186.
, This was the teaching of Euhemerus; and Plutarch considered it
possible in some cases, see below p. 26, 35 foIl.; although he rejected Euhem
erism.
5 See below Democritus, p. 13; Prodicus, p. 14; Oritias, P. 13.
o See befow Herodotus, p. 24; Hecataeus, 24.
T On the use of a name for a tMng, not but /J.na)..Yj7r,cx(u:" see
Heraclitus, Alleg. Hom. ch. 26.
Nor did Lucretius llse.suCh interpretation of popular religion when he
invoked Venus us god of creation and life.
"I
gorical interpretatioll.
9
N or is vague poetic pantheism allegorical
interpretation; snch, for example, as the fragment of Aeschylus/,)
"Zerus is the ether. Zeus is the earth. is the heavens; Zeus, indeed,
is all, and is whatever is above these."
Plato
ll
refused to admit into his State the impioue:\ stories found
in the poets of)r' elJ V7rlllJO{WIi: 7r7rlW1)fJ.{lJali: Of)T'lJ.IISU V7rlllloewlJ,for the reason
that the young man would be unable to judge what was said figul'a-
tively and what was not.
1Z
He particularly objected to the idea that
Homer was all-wise/a and argued that neither Homer nor Hesi6d
seemed to have been a teacher, and gllide to a better life.
14
It is
true that when he was not describing the ideal condition:s of a per-
fect state, when, that is. he had to aclmowledge the presence and
inftuence of the poets, he did force the meaning to suit lus own
rmds, and for just. the salnH reason that the Stoics alleged, b.ecause
Simonides "is divine and wise" ;lG although in these cases the inter-
pretation is not allegorical, his just.ification is that of the allegorists,
.. (} I1pa cOli: mxslJ, 0 7rocYj""WIi:.
10
In the Phaedrusl1
Socrates quotes an allegorical or the stoty of Boreas
and o rithyia, but adds tha.t for his part he has not t.im-e fOT such
studies. The Cratylushas many allegorical etymologies/
8
but Plato
was . here rather belittling allegoristic by ridiculing these ety-
mologies t.hat were one of its chief aids; for Socrates undertook the
into the origin names on condition that the investigation
shonld be for amusement and not entirely serious.
10
o Both Ker, The Dark Ages 28 (in the series Periods of European Litera-
ture) and his ;reviewer in /PILe Nat.ion (New York) for May 11, 1905, p.
382, use allegory indiscriminately for the two ideas; and the confusion
seems to. extend beyond the term even to the ideas th.emselves.
10 Clem. Alex. Stvom. V. 718 P (ch. 14, Sec. 114 end).
11 Plato and Xenophon and Aristotle are put here instead Qf in their
chronologioal order because they do not belong to the number of allegorical
tnterpreters, and appear at all only on account of their tP.<stimony that this
methiod was much used at th{'1ir time. Of. Ar. OlouUs, 264, a physical intel1'Pre-
tntion of Zens is ridiculed.
12 Rep. 378 D. Cf. Duemmler, Aut. 24, "AlIegoricam interpretandi rntioneom
Plato neque ignorat neque rclellit sed suo iure p.utat abiciendam. Rep. 378 D."
On PJato's banishment OIf the poets see Bohne, Wie gelaengt Plato z. Aufstell.
s. Stantsideals. u. wie erklaert si ch s. Ul'theil u. d. Poesie in demselben?
13 Rep. 598 0, n; 606 E; 607 A. On the relation of the Alexandrinfl
schoQl to Plato see Sengebuscll 118 ,foIl. 'rh.at school, too, did not alle-
goristic, and rejected the omniscience of Homer. On Plutarch.'s rejection of
the snme idea, see below p. 26 foIl.
H Rep. 600.
1;; Re-p. 331 E. Of. Protagol'.as 344-347, a forced interpretation of another
poem of
16 Rep. 332 B. On Plato's use ot ailJCT'T'fIIJ.ae to extract edifying meaning
from the poets and others, cf. Lysis 214 D, Charm. 162 A, Theaet. 152 0, and
194 C.
17 229 C, foIl.
1S For example. 407A. B: the contemporary interpreters of HOIIDer derhe
At'hena from a fhllll/rr).
]0 406 O. And he is parodying the extreme HeracIiteans bv the explana-
tion in. Tbeaet. 153 C of Homer's golden chain (11. 8, 17. Of. HeracH.tus,
alleg. Horn. ch. 36) as the sun; and 194 0 that Homer called the heart
T'OU XYj,oIlU O(.J.'fHOT'1jT'a, is not very serious. Of. etymologies
8
III two ways Plaho supplied an hnpetus to the well-defined move-
ment in the direction of allegorical interpretation. By his arraign-
ment of Homer and Hesiod as teachers of impiolls belicfs and
immoral ideas he roused up others to the defense of the traditional
Heraclitus in the Allegoriae Homericae mentions Plato
four times with great Although his own nse 01 pJ] e-
gorical etymologies was jesting, they- doubtless became a model for
serious attempts to trace the origin of things by meanls of their
names.
21
. Probably in a third way, also, Plato influenced lat.er criti-
cism in the direction olf an allegorical understanding of the poetli!.
His doctrine of tlle "ent.hllsiasmus"22 of poets might ,,"ell have 5Ug-
gested to his readers the infallibility of inspired writingA, an idea
not accepiied by Plato, as we have just seen. He did himself believe
that poetic creation was the result of a peculiar state of mind, of
an ov,eTheated imaginat.ion, a conditioninexplicahle in logical terms.
But in the Ion at least he was ironical, and that irony was, in all
likelihood, missed by literal-minded rela,ders; as the ;jesting spirit
of the Oratylus. was missed; and they missed, too., Plato's:!;; insist-
ence on the necessity of inspiration in the interpreters themselves.
Xenophon also testified to the common habit of looking fnr a hid-
den meaning in the poets; for in the Symposium\:4 he mane SocrateR
say that rhapsodes were the stupidest set of men because they did
not understand'l"(k {nrOlm{ar;. When Socrates
25
said that Oirce feastefl
men upon delicacies, Xertophon uses the word errcO"r.anr'l"{J)lI, and adds
for of course the moral was serious. however
playful SoC!rateA may have been in the allegorical interpretation.
Aristotle was not hostile ,to the allegorists. He sometimes
trea,ted the early poets as in a sense natural philosophers.; for in-
stance, in Hesicid's Oha.os and Eros he found an anticipation of
his own doctrine of material and efficient causes. . It is trne tha.t
in 493 A, where the verb ,uul9o).wrew seems to be mmd in the sense of
writing an allegory. Of. below p. 30. That Plato did not use allegorical in-
terprretntion seriously,Ree "r,olff 164; Gruppe. 1. 14 f. n. 18: 1-1ir:;'(l,1 Unto 7.
Cic. PIliI. Schrift.. I. 221. On Socrates, KriAclw 1. 234. Kc!', T1.le Darit
Ages, 29, in the series Periods of European Literature, makes the remarka-
hIe mistake of calling Plato an allegolist; he claims that the philosopher in
his treatment of Homer had a familiarity with the "Gothic" commonplnces of
allegorical intell'pl'etation.
:0 eh. 4, 12, 17, 21. On Plate as the cause of much allcgeristic, see
Schracler n. Pl'oleg. 389; Sengebusch I. 118 foIl.; Schow 223! 224.
21 See Krische 399 on the Stoic indebted'ness to tIle Oratylus.
22 Apol. 22 B, O. Phaedrus 245 A, B. Ion 533 D foIl. Of. Bernard Shaw.
The Perfect Wagnerite, 121. The artif;t net. as Plato il'enica.Ily said. nblp' to'
. understand what hel 'has learned. but to write what he lees not undetr-
This modern c.OI1Celltion of the rights of the interpreter surpasses any-
thing by the ancients.
IS lOon, 1. C. Cf. Pret. 347 m; Hipp. Min.. 365 D.
2' 3, 6. Duemmler, Antisthenica, 29, ha-s given this passage as if Antis-
thenes had uttered these words.
13 Mem. 1, 3, 7. Of. Pal. Anthol. 10, 50, Circe allegorized as a prostitute.
The use of the Sirens in 2, 6, 11, foIl. is by way of comparison, not allegorical.
9
this is not allegorical i:uterpretation of a naive myth, for Hesiod
was consciously using Chaos and Eros as representative of large
natural forces.
2G
Aristotle did believe that the myth-makers inten-
tionally hid truths under figurative forms, "for the persuasion of
the and for the aid of the laws.n2
S
Though he went on
to say that probably art and philosophy Wf\re often fou]](l nncl 10st.
D
It is possible to do little more than give a list of the earliest
allegorists. In the absence of their writings or of detailed l"epOlts
of their teachings, the nature of their interpretation can only be
conjectured from later development.s of t.he same tendencies.
Theagenes of Rhegium heads the list. He is not only the earliest
mem.tioned, but is said to hnve been the first who wrote about
Homer.80 The Homeric scholium gives two method8 of explaining
the battle of t.he gods, that the names of the gods were applied to
the departments of the physical world and also that they were
applied to mental qualities; then a.dds, "Such was the ancient
method of de fen se, a method that came from Theagenes of
Rhegium."il
There seems to he no proof that Haraclitus
32
himself used Homer
allegorically, but. certainly his followers did so. unless, indeed,
Plato was showing them how they might add authority to their
doctrines when he made Homer
13
the first to teach t.hat nothing
stands, that all is in constant motion. He used as proof of this
theory the verse n. 14, 201 and 302, "Oceanns, the father of the
gods and their mother Tethys." Again he called the Heracliteans
Homerids/' "on account of the doctrine of constant motion," as
the scholium quoting this versel of Homer.
This snme verse has, perhaps more naturally, been quoted to
shmy that Homer believed water the original element.
so
It is not
26 Met. I. 984b lines 23 foIl. See ZeIler 3, 795, especially f. n. 3.
Cf. below Philo P. 22.
M.et. XI. 1074 b lines I foIl. Of. belOW p. 13, Critias.
211 Aristotle, Fragment 175 (Rose) is a pihysiml explanation of Od. 12,
120 (Dindorf's Schol. and Eustathius, Od. 1717, 33). But Schrader n. 423,
argues that it does not belong to Aristotle. Sengebusch refers to it as genlUine.
For another schoUum, with the words ii).)''1)rop,xwr;---rfOp.'1)polJ ascribed to Aris-
totle (Eusta.thius, Oel. 1713, 9) see Schrader 419 f. n. I. Still a third, on Hes.
Theog. 275, is so unlike Aristotle that Flach, Iut. to Gloss. u. Schol. Hes. Theog.
161, thinks a sentence may have fallen out between the interpretation and
the name.
10 Schol. n. 20, 67 (Dindorf IV. 231).
81 Grnppe, I. 21 f. n. 37, suspects that later writers took as allegorizing
the merely metaphorical exprp..ssions of Theagenes and Metrodorus, such as ara
found in Em.pedocles and Heraclitus. That the tw.o latter are not caUed alle-
gorists weakens the force of this suggestion .
2 Schuster, Heraklit von Ephesos, s. 53 f., howeveT, calls Heraclitus the
chjef of allegorists; quoted by Zeller, IV. 322 f. n. I., and Gruppe I. 21, neit'hler
of whoon a'greei3 with Schuster.
I. Theaet. 152 E.
It Theaet. 179 E. Cf. 180 D; Crat. 402 A foIl.; in Crat. 402 B, they go
back to Orpheus for their doctrine.
n Plato, Firmin-Didot Ill. 285 on Theaet. 138 F-D line Ht
88 Arist. Met. 983 b 27. The indefiniteness of these statements, there nre
lame who think, etc., would seem to exclude Thales. Plut. de Is. 364 D (the
Egyptians) think that Homer as well as Thales learnt from them, etc. Cf.
Ps. Plut. Plac. Phil. 875 F, with reference to n. 14, 246.
10
reported that Thales made this claim; therefore, it seems probable
that he did not do so, or at least that no such tra.dition was handed
.
Anaxagoras was the first to explain the Homeric poems as dis-
cussions of virtue and justice!7 In this expression Favorinus pro.b-
ably considered the method of Ana.xagoras as more ,distinctly ethical
than that of Theagenes of Rhegium; or, possibly, "first" is used
carelessly.1S "The Anaxa.goreans explained the mythical gods so as
to make Zeus mind, Athena technical skill.,,:lII
Anaxagoras was the first to publish a book on physical allegory,
but he was preceded in this method by Metrodorus of J.Jampsacus,.
who also followed Anaxagoras in the moral interpretation.
40
lIe1-
rodorus went beyond the usual allegorical interpretation which
confined itself to the gods, and called Agamemnon air, if Hesychius
(s. v.) is' to be trusted. Thel'e is a fragment of the Herclllanean
Rolls that identifies the heroes of the Iliad with physical phe-
nomell1a,and some of the gods with parts of the human body.
Gomperz
u
recognizes Philodemus as the author of thiR iragment,
and, from its likeness to the reference in Hesychius, that
it gives the opinion of, Metrodorus. He refers to the fragment 3S,
p. 12, "den Metrodorns 'Von Lampsakos betreffende 1\.f.ittheilung."
On p. 14 he says: '''Die klarere Einsicht. die,;wir mllllnehJ: in das
allegorische System des von IJampsakos, des Schuelers
des Anaxagoras" gewinnen des f. 90, welches sich-mit
Ausnahme der ersten Zeile--vollstaendig undmit I.Jeicntigkeit
hers,tellen laesst: xl:tl (1) lIOP_ (WlI) xa (1 ) OUi (/-L) WlI TW (v) tra (p')
all (Opw) 7r0 xat TUlI' A ('Ya) ,u.lp.llIIlIa alOlpa (cf. Hesych.)
37 Fayorinns, in Diog. L. 11. 11. Sandys, A Hist of Class. Schol, p. 30.
and Egge'l', Hist. de) la chez les Grecs, p. 99, say that Linaxagoras saw in
the arrows of Apollo' tbe rays of the sun. Egger refers to '1"lletzes on
Iliad. p 94 ed. God. Hermann. Decharme, La Orit. d. Trad. ReI. chez les
Grecs, thinks that the Tzetzes passage will not beal' this interpretation.
Sandys, I. c., Anaxagol'as "is sftlid (whether truly or not) to have found in
the web of Penelope an emblem of the rules of dialedics, tilP. warp be-iog
tho premises, tht" WOOof the conclusion. and the flame of tlle by which
she executed her task, being 'no'ne other than the light of rf!aSOll," with a
reference to SchoI. on Od. 2, 104. The writer seems to have been misled by a
remaork of E'ggex's, p. 100 f. n. 1, to the effect that the author of this anony-
mous scholium evidently follOoWS the methocl Oof Anaxagoras, "s'iI n'est pas
Anaxn-gore Ini-meme." The was not known before Aristotle.
88 Modern wl'iters use "first" about various allegOorists. On Duemmler's
claim for Antistlienes see below p. 17, f. n. 72. Gomperz, Gr. Thinkers (Trans.
by M1agnus), 'I. 375, Diogenes of Apollollia "was the first to break ground in
introducing the allegorical method in nationail poetry." But o'n page 379,
"Already in the sixth century, Tbeagenes of Rhegium had applied' the panacea
of allegory to tbe authority of Homer, which Xenophanes had assailed M
bitterly." ,
119 Zeller I. 1019 f. n. 3 quoted from Syncellus, Chron. s. 149 C. Zeller
thinks it probable that it was not Anaxagoras but hi,;; pupils that used m<oral
Interpretation; for his interests were physical, and from this pa,c;;sage of Syn-
eellu8 it seems that 'bis followers did tUrn to psychological interpretation. On
Anaxagoras see whack, I. 157 fOoll .
.. Dior. L. 11, 11. See Tatian C. Grnec. c. 21, for the physical of the
Interpretatif>D.
U Sitz. Bel'. d. Kais. Akad. Wien. 116, pp. 12-14.
11
"Arap.l,'J.'1UlIa TJlI alO{pa jJJYjTf)(;awfJuS aJ..J.."1/(opexws}, T011 (,A)Xtj,Ua a'
'EU(II)r;IJ T(IIJ IJ8pu'I oipa, TOIJ tI EXTo(pa)
xa/ TUUS aA(AUU)S allaAUrWS clmi,ualT(Tat) TUUTotS. TWIJ as OewlI
T(}1I JUJ)IIU{T(}lJ TJlI 'A)iU)J..)'W[t] loA7J(IJ)." .
So sehen wir denn, dass die-ser aJltike Vorlaenfer unsere:JJ'"
modernen U schold und Forchhammer es an systematischer Folge-
richtigk,eit keineswegs fehlen liess, und dass ihn wa.s immer sich
auch gegen seine Methode "einwenden lassen mag, der Vorwurfder
Inconsequenz, den man in einen Bemerkung 'ratians" zu finden
geglaubt hat, jedenfalls nicht mit Recht t:re:ffen wuerc1e (adv'. Graec ..
c. 3'7 [this must be a misprint :for 21] vgl. Grote. Hi8tOry" r 563"
Zeller's Philosophie der Griechen ra, 831)." The passage of Titian
is as follows:
xa'l Al"1)Tp6awpus at v ila,uf/Jax"1)vvS Ell Tip llq/'/. Mav drrJOws
r.an'a eis aJ..J..YJyop{aIJ p.eTarWIJ. ol)re rap Cf HpaIJ ol)re 'A07}lIiiIJ ol)Te .a{a:
1IJa{ ip"1j(1'tll {frrep o[ 7rep,(36Aous afJTo"'is xat Tep.h"1j
ae {nCOITTa(1'ees xat ITTOeXeCwlI xat TOIJ Cl EXTOp"a
xa/ TVII 'A XtAMa xat TOIJ '.A rap.{,uIJova Wt 7rallTas Cf
-re xac (3ap(3apous ITU'; T?) 'EUIJ'(I xat Tip nap,a, ipU(1'ews U7rapXOIJT(J.S-
Zaptll olxollop{as oMelJvs lSlJT/iS TWIJ 7rp()etp7)/.J.IJWII (I.IJOpW7rWIJ.
Relying upon this passage, Grote" I: 3'14, and Sehlemm (de
Plut. Corn. de aud. po. et fort. 32 f. n. ]), say that Metrodorus
gave physical explanations of the heroes. They seem to have over-
looked Zeller gives the due weight," I. 1019, f. n. 4.
It would almost seem that Lobcck, I. 156, f. n. (b), had before
him a different text, for, while he evidently does not think that
Tatian had borne witness to Metrodornsfs allegorizing any hero
out Agamemnon, he says tllat Metrodorus considered the other
heroes as introduced xaptIJ olxoIJ()fJf.as. Now in <JUT text this is not
the statement of Metroc1orus, but of the supposed objector im-
plied in for the l.(l.ptIJ ()!x(JIJo/J.{as is dependent upon the
as well as the names of the heroes: r:po allegorize the
heroes
2
was not the custom of even the Stoics, and had not the
same excuse that oPeTated in the case of the gods, namely," to avoid
impiety. Therefore, it seems probable that Tatian gives the cor-
rect tradition, and that Hesychius and the: author of this fragment
neglected the or rather whatever in TaHan's source the
repres"e'llts, just as Grote and Schlemm have done.
Plato" joins the names of Stesimbrotus and Glaucon to t.hat of
4.
l
a Cf. on this use of Xaplll Max. Tyr. 32, 9,
The whole chapter is an aIlegoriC'R1 interpretation of Homer as a
of ethics and politics.
G It is true a late writer does allegorize Paris in the Apple of Discord
story. He is perception by means of the senses, SaIlustius, Phi!. doe diis c. 4.
61 Ion, 530 D.
12
l.Ietrodorus as interpreters of Homer, but. does not give their meth-
ods. Xenophon," however, reports Stesimbrotus and- Anaximand01'
as explaining the of Homer. . .
As a tragic poet Euripides was- obliged to use the myths In then
essential forms. However, he was so iranklyrationalistic that the
few allegorical interpretations found in his works may be regarder:l
as suggestive of his own beliefs, and not merely as indications of
the _ somewhat common feelings of the time. In two fragments he
distinctly calls Zeus- In the mouth of another poet this
might be the deification of this great and impressive and mysterious
part of nature, a deification conson-ant with popular feeling and
usage. More necessarily allegoristic are some expr.essions of psy-
chological interpretation of t.he gods; as "Zeus, whether the laws
of nature or the mind of When Orestes cries out to the
Eumenides, Electra- bids him lie quiet, for he Aees none of those
things that he thinks he clearly recognizes.
41
Mortals called their
love-folly Aphrodite.
48
Tiresias saves his piety and the dignity of
Zeus at once by expla.ining that the story that Dionysus was sewn
up in the thigh, f1.7)POS, of ZellS was a popnlar misundcrstanding of
""hat really did take place: Zeus had saved Dionysus, and had given
Hera a wraith-in the image of a baby as a pledge, 8fJ.7)pos."
There are some verses quoted by Sextus Math. 9.51:. as from
Critias, by Ps. PIut. Plac. 880 E as from Ellripides, that make
religion only a clever deviee of law givers, invented to restrain men
from lawless acts, even when they think that they are safe from
human observation.1IO
Democritus, Prodicns, and Euhemerlls seem rather to have
sought the of belief in the popular religion than to have
44 Symp. 3. 6. Lobeck I, 157, "Fulgentius XIV. 604 said that
mandel' Lampsacenus and Xenophanes Heracleopolites explained physically the
myths of the muses." On Anu..'Cimander see Sengebusch 207. On Gluuc.on,
208; on all these names see Lobeck 1. 156, 157.' Plato', Orat, 407 A, "Those
of the present day wh:o are learned in Homer" explain that Homer represented
mind and judgment under the name Athena; several etymologies follow.
Frag. 869 and 935 Nauck Cf. Cornutus, de nat. deol."; c. 20.
46 Troad. 886.-0f.Cic. Tuscul. I. 26, 65.
41 Orestes 255-259. Cf. 314. On the treatmen!t of the Eumenides see
DechaI'me, Euripides, p. 68, and Girard, Le Selllt. ReI. en 401-404. Cf.
COl'nutus N. D. 10, the dreadful appearance of the E'nmenides was due to the
imaginatio'u of the wicked.
-48 Tl'oad 983-992, Cf. below Aruti.sthenes, p. 1.6.
40 Bac. 286-297. Dion. Hal. Ars. Rhet. 300-356 (Rieske), the Melanippe
of Euripides had argued against rEpara. Bac. 284 is probably a poetic
identifica tion of wine and the wine god. See Decha:rme, Euripides, p. 59
foll. Nestle, Euripides, -p. 8U foIL Zeller, 11. 1.3. 1.4. D'l1emmler, Akade-
miker. 142-144.
Plato in Laws 889 E. foIl. objects to the idea that the gods exist merely
by convention. Cf. Cic. N. D. I. 42, 118. See ZeIler !:. 1132 foIl.
M On sources of belief in go'ds, see Sextus Emp. Math. 9, 14, foIl. Plut-
763 0; de Is. 369 B; see below p. 26. Ps.. Plut. PIB:C" Phil.
<:',10 F. DlO. Ohrys. XII. 391R. foIl. Schol. 11. 20, 67 (Dmdorf IV. 2:30 foIl.) :
Eustathius 3. SyncelIus, first part of Cbronika. Anon. Alleg. (Westermann)
13
endeavQred tOo preserve and supPQrt their Qwn belief, Qr to defend
the myth-makers against the accnsatiQn Qf immQrality. AccQrding
tOo DemQcritus, Qne Qrigin Qf the belief in gOods was the effQrt men
made tOo assign causes tOo strildng natural phenQmena.
52
But he
seemed tOo believe in SQme more direct manifestatiQns Qf super-
natural beings, fOol' he described images that appear tOo men as be,ings
mQre PQwerful than themselves, larger and IQnger-lived, SQme gQod
and some evil; they were alsQ prQphetic Qf the future; when men
mw these images, they called them DemQcritus sPQke Qf
Zeus as "what men nQW call air."M And he gave an allegorical ex-
planatiQn Qf the epithet -rpc-r0ryeca. It means that wisdom has three
parts, tOo reaSQn well, tOo sperak eloquently Qne's thQught, and to put
properly intQ practice what has been thQught Qut.55
"PrQdicus the Cean says that the ancients believed sun and mQon
and rivers and springs, and, in general, all things that are bene-
ficial tOo man to be gOods Qn aCCQunt Qf their service tOo us, as the
Egyptians IOQk Qn the ,Nile. And tha,t Oon this account bread was
believed tOo be De-meter, wine DiQnysus. water PQseidQn, fire
HephaestQs,and, ind:eed, each Qf the aids to. man's life was tr.eated
in this way,"56 that is, deified. Cicero/
7
tQQ, understoQd PrQdicus tOo
deny the existence Qf gOods, that is, whQlly tOo allegQrize the tradi-
Script. Poet. Hist. Gr. P. 327. 4; 328. 22. Oic. N. D. Ill. 7. 16; better, lI.
5. 13-15, on Cleanthes's views. Only Democritus, Proldicus and Euhemerus
are spoken of here, fOI' their view,s seem akin to allegoristic.
D2 SeIXtus Math. 9. 24.
113 Sextus Math. 9. 19. Cf. Oic. N. D. I. 12. 29; 43. 120. Oicero says
that besides these images Democritus sometimes called the mind of man god.
Plutarch, de de. or. 419 A, joins the eidola of Deanocritus to the demonS' of
Empedocles, Plato, Xenocrates a'nd Chrysippus. In Timoleon c. 1, he calls
Democritus superstitious :01' his prayer 1.0 meet favorable images. Modern
writers have differed as to whether these images of Democritus were demons.
Zeller I. 936 foll. calls them the first suggestion of dtemons as mediators be-
tween philosopbly and religion. (On demons see below p. 31.) Windelband,
History of :Ancient Philosophy (trans. by Cushman) 173 (Of. 169); Liard,
De Damoc. Phil. 56, 57; Decharme, Eur. 63, call these images' demons. Hirzel,
I. 137, 1, with whom Heinze, Xen. 88, agrees, does not aCcept iliis view. The
suggestion of demons in the images can be avoided only by . discrediting the
testimony of Sextus and Plutarch, and assuming that they bad imposed alien
beliefs upon the atomist. The rema'l'k of Hil"Zel, p. 76, upon "Die
nnd vielleicht von: Missverstaendnissen nicht freie Ueberlieferllng" is just, bu.t
would apply with the same cogency to almo..,t eycry allegorist before Hera-
clitus, the author of the Homeric Allegories. However, as Democritus was the
of the rationalist, there is a presumption against attributing any super-
stition to him.
M Alex. Protrep. c. 6. 68. 59 P. (20 S.) Strom. 709 P. (255 S.).
It ils an atheistical paSI':' aoge, for he says that few educated men address what
we now call air as Zeus, and ascribe to it all knowledge an.d power.
D5 Diog. L. 9. 46. Eustath. 696. 36. Cf. Lobeck. I. 157, 1.58. C'f. remarks
on an explanation giYen by Diogenes, below P. 11.
DO Sextus Math. 9. 18. Philodemllls p. 76 (Gomrperz) seems to say much
the but the lines are so defective that without Sextus the restitution
would appear doubtful. Menan.der's expression, "That which nourishes me I
judge to. be god," may be mere literary adorn'Inent or exaggeration. Meineke,
IV 76 (8. 4) and Gnoon. Mon. 490.
DJ N. D. I. 42. 118.
14
lional deities into things that conduce to man's life and com:Eort
And" yet it is possible that Prodicus meant that the ancients wor-
shipped the givers of the gifts, not the gifts.
1IS
Just as according to
one-half of the theory of Democritus they worshipped the causers
of thunder and otheor great natural appearances. In that case
Prodicus might either have been a p.olytheist himself., or a mono-
theist, who considered the traditional gods as manifestations of
the one divine power, as did Plutarch.CII
Ellhemerus is hardly an allegorist, yet he had the same purpose
as Democritus and Prodicus had and the same spirit as any atheistic
allegorist. "He claimed to have found in his travels records of great
and good kings and leaders of men, who came to he regarded as
superhuman. They had" the names of Greek divinities. Hence
arose religion.
M
The chief followers of Euhemerus were Palaephatu",ol ana Polyb-
illS,02 ancl especially Diodorus.
63
Occasional Euhemerisms are found
in authors who are not at all Ellhemerists. The scholium on
ApoiIonius Rhodius Argonalltica IT. 1248, gives several allegoristic
and Euhemeristic explanat.ions of the Promethe11S myth whirh are
assigned to Agroetas, Theophrastus and Herodorlls. Hecataeutl
also made Cerberus" a poisonous snake, and Geryon
65
a king. Like-
DS Plutarch made such an explanation but wit.hout mentioning Prodicus.
see below p. "26. .
50 See below p. 26. Cf. Welcker, Prodiclls, s. 521 (quoted by Nestle,
Enripides, p. 431, 91). Wenn er ... von den vielen Yolksgoettern den einen
natuerlichen oder den wahre"Ii Gott nnterschied . so hebt dies nieM die
vershrnng des :ei"nen Gottes in den Goettern al"! Symbol en oder Organen seiner
Wohltharen und seiner Hel'rlichkejt nach des Landes Gesetzen auf. .Tool. Der
Echte u. d. Xen. Sokrates 11. 262, Der A.ng der Fr.oemmigkeit ist die Dank-
barkeit des Banern gegen die Natur sngt Prodikos (Cf. Plut. de Is. 378, 3 7 ! ~ ,
especially 378 F to 379 D) ; and J.oel connects the doctrine of Prodicus with
the Cynic doctrine, as he describes it, o ~ the piety of the farmer.
60 Eusebins Praep. Evang. 11.2 5"5 foIl. Smtns l\fath. 9, 17, 34, 51. Plut.
de Is. 359 D to, 360 D. See Euh.emeri Reliquae, collected by Geyza Nemethy.
Cicero ascribed this doctrine t.o the Stoics, see below p. 21. Wellman Aegyptisches
11 ermes 31, p. 232, says that Euhemerns. who W8.q a friend of Oassandf'r. de-
veloped his historical theory to make the apotheosis of the kings who followed
Alexander more acceptable to Greek u"nderstanding. According to Grnppe,
however. Euhemerus was a delicate humorist, misunderstood by both adherents
and opponents, who took as serious myth-maki"ng his playful irony upon the
Diadochi. (I 16 foIl; a history of Euhemerism.) '.rhere does not' flee-Ill t.o be
en,.)ugh ancient testimOOly on the subject to support either view. Euhemerus
seems to bave given the promulgators of religious doctrine the same purpose
that Ol'itias assigned to tl1em, namely, to obtain the obedience of t'he masses
(cf. above p. 13.) For Sextus Matlh. 9. 17 says that according to Euhemerus
the powerful men of ancient times, in order that they might increase fear and
obedience, persuad'ed their subjects to worship them as gods. Of course the
parallel ends with the purpose. Saintsbury seems to misuse Euhemerism when
in Hist . .of Crit. I. 187 he calls Tzetzes's physical allegoriz-ing u a cheap
pseudo-I'lclell'tific Euhemerism."
81 Concerning incredible tales. introduction, 'Vestermann, Script. poet.
hlst. GI'. p. 268.
62 For example, in Strabo I. 2, 15 (C. 24).
6a Ill. 44-60. Of. Eustath. n. p. 1190. On all three, see Hrote, I. 368-
871; on IDuhemerns, 367, 368.
8' Fr. 348, l\fu ell er, Fr. Hist. Gr.
83 lb. Fr. 349.
15
wise, Ephorus converted the serpent Pytho into a tyrannical king.
ult
Even Herodotus accepted the story that some Egyptian priestesses
founded Dodona, and reconciled this version with the popular
Greek tale by calling the doves of the latter a figurative repl'esen-
tation of the priestesses.o
f
The meager remains of the early Cynics do not offer material for
the reconstruction of their literary criticism. It is plain,
that they did not understand all tradition in its literal sense. For
Antisthenes explained the god Eros a,s an affection of the soul,
deified by t.hose suffering from an attack of, the disease.
aa
His
exegesis of Homer is illustrated by his comment upon
The epithet held both praise and blame of lliysses, but it might be
wholly frep, from evil implication if it were intended to apply not to
his moral character but to his oratory; that is, .he could suit his
speech to his audience.
oD
This is not allegorical interpretation, but
reveals the same intention, namely, to preserve the moral teaching
of Homer at the expense of the natural meaning of his words. For
here Antisthenes was endeavoring to keep Ulysses as an example of
a moral life. Plato's treatment of the same epithet is whollydif-
re rent ; he did not free it from the idea of falsity, and declined to
enter into an idle discussion of what Homer might have meant,
"since it is impossible to ask the poet himself." fO
Antisthenes taught that some of t.he words of the poet were
spoken and some aAYj6;{q. fl cannot, of course, have the
meaning given to xaTa by Plutarch in de aud. po. 17 D. where
it expresses the gennine belief of the poet himself, however
wrong or false such belief may be. 'Vhether Antisthenes would
have said, as the Stoics did later, that the poet always knew the
truth and told it allegorically when he spoke appears uncertain.
Dio's words are: 6 ae oUbey TOU Of1:rJpou tl.p.a "0.1
Ih Ta p.ev XaTa Ta ae xaia
aVTfp T(f aOXOU(fV elpij(f(Ja. er
8T Ta p.ev Ta ae dAYj(Je{l/- dpYjTa Tip
aAA' <5 ou" er xa(J' lXa(fTOll 1"WlI
eT xal llep(faios er TOU XaTa xGCt
l1Um It would seem unnecessary to repeat with Antisthenes
the words, Ta 't'a ae a).Yj(Je{q. if it was not only in this
10 Strabo IX. 422.
" U; 54 foIl. Cf. VII. 129. on thec1efile of Tempe, the work of Poseldon,
if Poseidon caused earthquakes. See Grote, I. 852 foil.
11 Clemens Ale-x. Strom. IT. 20, p. 485P.
at SchOll. Od. I. 1 (Dind. I. p.9).
" Hipp. Mi. 364 E.' 865 B-D; 869 D.
Tl Dio. Ohrys. LIII. 276 R.
16
of the teachings of Zeno but also in exculpation of Homer that
Antisthenes was his ..
Diogenes explained the sorcery of l\fedeoa in restoring old men to
youth as the work of gymna.stic.
73
But this does not necessarily
mean that Diogenes believed that the myth was invented to teach
the value of gymnastics. He may well have used the story as an
a.pt illustration of his subject in hand. It is often .impossible to
determine just how a thinker has used the myth, espedally when
his exact words have not come down to us, and the context i8
wanting. .
lillch surer ground is reached when we come to the Stoics.Tt
The testimony on their methods of interpreting Homer is clearer
and fuller than for any of their prede.cessors; more than that, for
the first time a definite plan was developed. Their sYAtem is the
first that has come down to lis; that it .was really the first elaborated
employment of allegoristic is a; just inference from the words of
72 Therefore D uemml er, Antisilienica24, seems to overstate the effect of
this passage when he says th.at [Antisthenes] non potu it non uti Stoicorum
allegoria quam i'ncohasC'e saltem eum testatur Dio Chrysootomus or. LIIl. 276 R,
Moreover, Dio does not bear witness that Antisthl'nes was the originator of tliis
method of criticism, wbatever its naturl', for he uses nplrrepov, not 1rPWT'OV
Sch1':lder, 387, seems to agree with Dllemmler. That Plato was arguing
against Antisthenes in those passa,ges in whd<>h he OIH>Osed allegorical in-
terpretation, or the belief in the omniscience of Homer, or in which he jested
about the origin of names .(Duemmler, Ant. ,24-39) ,can har(l1y be proved.
For, in the first place, too little is known of Antisthenes's writings to give
MSuranca that in so many ca<::es the leind of interpr.l'tation atta'C'ked by Plato
to the Cynic. (On Plato's hostility to Antisthenes see Zeller H.
294-300, especially footnotes.) A;nd, in th.e .seco'nd place, the ideas opposed by
Plato were common, Ion 530 C, an.d' a general tendency was more powerful for
evil th.an any teachers, Hep. 492, therefore it is unlikely that Plato always had
individuals in mind. Of. Shol'ey, The Unity of Plato's Thought, 4 f. 11. 4 .
TOIel. per Ec'hte u. d. 'Xen. Sokrates, l1as carried to the extreme this
attempt to find Antisthenes in Plato; see especially H. 146. 148, 149.
At any rate these discussions do not aid in the search for Antistllenes's
allegoristic. For we know tllat be is th.e object of Plato's only wlten
we already know th.at the doctrine is that of the Cynjc. Antisthenes
used allegories in his teaching, Julian VII. 209 A; 215 C; 217 A. Phto and
Xenoplhon are mentioned in the last two passages. (Cf. Krische 243 foll.:
Lobeck I. 159 b). On the allegorical interprl'tation E:>mployed AntiRthenes
see Schlemm 34 (cf. 35, 36, 39, 40) ; Heinze, Xen. 94; Zeller 2. 283; Weber,
de Dio OhilYS. Cyn. Sec., Leipsiger. Stud. 10. 224. fall. Thege writers refer
to Dnemmler. Cf. also Norden Reit. z. gesch. (I. Gr. Philo.c; .. JahI'b. f. Class.
PhiJ.ol. XIX. SUP. s. 377 foIl. Kri&!he I, 234-246. Sengebusch I. 115 foll.
78 St,ob. Eclog. Ill. c. 29, 92. Of.. Lobeck I. 159 f.n.h. Gomperz Gr. Thinkers
(Translated by M:agnus) I. 375. '.rhe passage in Phil9dernus p. 70 (Gomp.)
is s'o defective tllat it seems hardly safe to build a doctrine for Diogenes upon
it. It appears to mean that "Diogenes praiRe!S Homer because he wrote (not)
mythically but trutbfully; for he 'says that he (Homer) considl'red the ail as
Zeus; since he says that Zeus knows everything." Rut I"f. Akad.
143, 2. Sextus, Mlath. 7. 128, said that Homer, Od. 18. 163, ascribed
gence to the air. . .
T4 r.rheir allegoristic has bl'en treated so often that theRe few paragraphs
nre insertoo here only for the sake of C!ompleteness. See espec:'ially Zeller lIt.
321 foll., and Zeller, Stoics, EpicurE'anlS and Sceptics, trans. by Reiehel, 354
foIl. (many etymologies a.re given 362, f. n. 3), and Krische pa88im. Also
Sengebnsch I. 67 foll.; F'lach Int. to Gloss. 11. School. z. Hes. 'l'heog.,
authors referred to at t11e beg.inning of this sketch.
Dio Chrysostom.
1ii
They assumed that Homer wrote with a full
knowledge of and acquiescence in Stoic physical and moral dogmas. if}
Whether this assumption was a pious conviction antecedent to the
use of the myths to support their own t.eachings, or whether they
consciously wrested the poet's words from their origin'al intention,
it is perhaps impossible to determine. ,'rhe language of Dio, that
"Zeno blamed nothing in Homer," would imply the genuinene8s of
their faith. However, either on account of a' naive belief, or avail-
ing themselves of the convictions of others, ,they did. reconcile tra-
dition with their doctrines so as to gain support from the respect
and almost religious awe in which the body of myths about the gods
was held.
The de,fense of Homer against his detractors was the chief
motive of some of the writers. It is at least probable that Heracli-
tus" was not expressing only his own view when he gave prominence
to this motive for his allegorical explanation of objectionable stories
in Homer. By explaining myths a1?out the gods as moral or physi-
cal allegories, they found their own beliefs the[fe, and at the same
time relieved the myths of any impious or immoral implication
discover,ed in them. They were not the first who did either the
one or the other; we have already seen that the followers of Thales
and Heraclitus-unless Plato called the latter Homerids to ridicule
the search for {nruIJO!w - discovered in the words of Homer the
principles of those philosophers. This method of understanding
the myths was a natural, to some extent a necessary, result of the
Greek
7B
habit of personifying natural phenomena and moral char-
acters; the in,evitable corollary to that mythopoeic habit, namely,
confusion 111 in the minds of the sincerely religious between the god
1G See above p. 16.
70 r.I.'1bis was somewhat the attitude of early and mediaeval Christian::;
towards VirgiI; they found their own beliefs in the Aenei@l, in an aI1ego'rical
dress. Gomparetti, Vergil in tble Middle Ages, trans. by Benecke, ('h. 7, 8. On
the honesty of the allegorists, p. 105 end.
77 Alleg. Hom. passim. Of. Kriscbe 393, that Zeno'fiI motive was merely to
support his mvn doctrines. But the rema1ns of Zeno 011 this point are too
scanty to justify a decision. On the serious purpose of the Stoics and their
allegoristic see Zellel' Ill, 336, Sie (ihre erkUirungen) galten ihnen fUr das
ei'nzige Mittel, urn dlen Glauben ihres Volkes zu retten, urn die hartesten Vor-
wlirfe von den Ueberliefernngen und den Dichterwel'ken abzuwehoon, mit denen
del' Griecl1e sieh von Kindesbeine'n angenahrt hatte. Mit dWSen Ueberliefer-
ungen gauz,lich zu brechen, konnten sie sich nicht entschliessen, ihre wissen-
schaftIichen und sittIichen U eberzeugen woIIten sie ihnen nicht zum Opfer
briDgen; kaDn uns Wunder ne'hmen, wenn sie das unmogliche versuchten,
Widersprecheude,s zu vereinige'n, und wenn diesel' Versuch sie zu Gewal,tsamkeit
und Ktlnsteleien jeder Art hindrangte?
7B Of C O U I ~ l e oot particularly Greek. Cf. Grote I. ch. 16. Grote in this
chapter and Gruppe and Schow point out the false results obtained by both
ancient and modern writers when they have pushed allegorical or symbolical
explan&tions to an extreme. Cf. Goropius Becamus in Lobeck n. 1051. the ob-
jection to the discovery of truth in in.spired writings by means of al1egorical
interpretation is that the interpreter must, like the poet, be inspired. C'f.
Plato's similar idea, above p. 9.
111 On identification of the god in a thing the words of Gruppe I. 49 are
suggestive: Wenn Lehrs uncl die uebrigen Rationalisten die Identification del'
18
and the tiling typified by him, or the department of the physical or
psychological world over which he presided. was one cause of the
development of allegorical interpretation. Etymology, that popu-
field of philological activity, was abundantly used by the Stoics
in aid of their allegorical explanations.
That Zeno wrote on the interpretation of t.he poets is known
from the list of his works given by Diogellces I.Jaertius/
1
from Dio
Chrysostom,s2 from Cicero,&'i and the scholia to Hesiod's Theogony.8'
That his method was allegorical is proved by the following: (1)
The passage in Dio Chrysostom already quoted under AntisthenHs,
which is to the effect that Zeno blamed nothing in Homer, but said
that the poet wrote some things in accordance with truth, others in
accordance with opinion, and that he worked this int.erpretation
out in detail. (2) Cicero Zeno, Oleanthes and Ohrysippus wrote
to show that physica ratio non ipelegans inclusa est in inpiaR fab-
ulas. (3) The statement of Minucius Felix
B6
that Zeno interpreted
Juno as air, Jupiter as the heaven,s, Neptune as the sea, Vtilcan as
fire, and the other popular gods as elem,en ( 4) Cicero :81 Zeno
said that ether was a god. (5) Cicero :88 in Zeno's interpretatjon of
Resiod's theogony he utterly overthrew the accepted ideas of the
gods; fQr he did not receive Jupiter nor JunO' nor Vesta amolJg the
gods, hut among inanimate things, and taught t.hat these names
had, by some symbolism (significationem), been attributed to mere
dumb things. (6) Oicero's witness to the great number of the
etymologies of Zeno, Oleanthes, and Ohrysippus, and to their de-
stnlCtive effect upon religion. "For by this method those who are
called gods are acknowledged to be natural things .. not personal
godS."SII Examples of these etymologies: 'By the Titans were meant
the elements of the universe; from the x used for 71: as
in the Aeolic dialect; the royal and chief;' Y7rep{w'I the move-
ment up, from {J7rcpaIlW Ullac.' 90 "Zeno said that the Oyclopes were

Goetter mit den Natnrsch.einungen fuer eine spaete Faelschung der Griechischen
Mythologie halten so irren sie doppelt; vollstaendig identificiert wurden die
Uottheiten nie lmd die faculative Identification ist nicht auf die junge Pel'iode
beschraenkt. See Plutarch's views below, p. 38 fo11.
Cf. Plato C'ratylus, S'ee aoove p. 8, 9.
81 VII. 4.
82 See aJbove .p. 16.
113 N. D. I. 15. 36.
i' On vss. 134, 139.
N. D. 11. 24. 63; Cf. 64.
B6 Octavo 19, 10; Pears on., Zeno 111; see Pearson's notes on that flag.ment.
IT N. D. I. 15. 36.
89 N. D. I. 15, 36. 110; see bis notes.
111 N. D. Ill. 24, 63.
oe Sc:hol. 134, Res. Theog. The text of the following sentence about Iapetu8
seems too doubtful to make it so valuable as the othcrfl; see FInch 011
scholion. Cf. Oornutus, Theol. Or. Comp. ch. 17. . ,
01 Schol. 139.
1!J
In the list of the books of Cleanthcs
92
given by Diogenes" are three
that were probably filled with allegorical explanations, On.the gods,
On the poet, On the giants. Oleanthes t.ried to acoommodate to his
own beliefs the doctrines that were ascribed to Orpheus and Musaeus
and the teachings of Homer, Resiod; Ellripides and other' poets.
VJ
By the word lJ..toAu in Od. 10, 305. he said that reason was alle-
gorically set f'orth, by which impulse and passion U;) Ifis
etymologies were sometimes so a.bsurd that Plutaroh
DO
said that
Cleallthes' was in jest. as when he pretended to explain: 'Z"u
(Zeu 7T:anp fJ.eOiw'l'
"at 'Z"(}
, ZeJ l1.'1a LJw/Jw'lais'
f.eAsrJ4Il.I a'lar'rytfNxm ly, tb)' 'Z"UII b, 0''1aOu,tlu.o!U:'10ll alp'/'
o''1a,JO(flll a'laawlJw'lat(}'1 Oll'r"a.
Other etymologies' showing his allegorioal interpretation of myths
a,re of Pers
1
ciphone,07 of Dionysus
llS
(as .the sun), of ApolloDS (also as
the sun).. and of various epithets of Apollo.DS
As seen above,oo Chrysippus used aUegory to explain the myths,
as Zeno and Cleanthes did.
loO
According to Cicero
1ul
he sometimes
made one thing god, sometimes another, as mind, the universe, the
elements, or men who had o.btained immortality. "Re said that he
was ether whom men called Jupiter." Neptune the air that perme-
ated the sea, Ceres that of the earth, and he treated the names of
the other p;oc1s in the same way. He called Zeus fate,t2 a180. He'
wished to fit the fables of Orpheus, 1\Iusaeus, Resiad and Homer to
those things which he himself said, ut etiam veterrimi poetae, qui
haec ne suspica.ti quidem sunt, Stoici fuisse videantur.
103
, His ety-
G2 See abQve p. 19.
us VII. 175.
V1 PhilQdemus de piet. 13 (p. 80 Gomp.) Pearson fr. 54. Of. PI ut. de
def. or. 415, F, l11e Stoics imposed their doctr'ine Qf the conflagration of .the
wo.rld upon Heraclitus, Orpheus arntd Hesiod.
05 Peal'son fr. 66, quoted from Appollo.n. Soph. Lex. Horn. p. 114 ea.
Bekker.
vo De aud. po. 31 E.
07 Plut. de Is. 377 n.
vs Pearson, 57, 58, 59, 60; all fiJ'om 1\f-acrob. Sat.
00 P. 19.
100 His work How to Listen to tIle Poets was p'l'obabIy filled with alle-
gorical interpretations, Diog. L. VII. 200.
101 N. D. 1. 15.39, 40. Of. Philooeml1s de piet. 11-14 (P. 77-81 Gomp.). fl
more detailed statement of Chl'Y:'lipp'lls's views o.n the gods than tboat in Ciool'o.
According to Kl'ische, this treatise de pietate, whiCh he ascribes to. the Epi-
curean Phaedrus, was Cicero's source for the l)aSsages in the natura deol'um
on the Stoics. Diels Dox. 121 foIl. takes Pbaedrus as the co.mmon source of
Oicero and Philodemus.
102 Plut. Stoic. rep. 1050 B on Ohrysippus's interprebttion of n. 1. 5, Zeus
meant fate and nature. Of. Galen Plac., Hipp. 348 foIl., Ohrysippus explained
allegorically the birth of Athena, Hes. Theog. 886 foIl.; the goddess WAS mind.
108 Oic. N. D. I. 15. 41. Cicero went O'n to S83" that Diogenes of Babylon
followed Ohl'ysipptls in this figurative method, and explained the birth of
l\Iinerva by a physicu,l allegory. On the allegoristic of DiO'genes cf. Philodemus
de piet. 15 (82 GO'hlp.), See fie Ren('!f. I. 3. 8. [ChrysiTJfms] nee 'his
[his arguments] fabulas, sed haec fabulis inserit. On this use O'f the poets as
20
mology of Zeus will perhaps serve as an example, though it is not
necessarily allegorical. Zeus
lOl
is irolll qv, he is called Ala. because
. all things are a.u!"th/
03
The Stoics accepted aU the unliteral explanations of the popular
religion that had found favor with their predecessors ;100 how much
of this eclecticism; however, was in use among the 'older' Stoics, it
is, of course,' impossible to determine; but P,ersaeus
l07
said that men
of signal . bene-fit to their race had come to be called gods, thus
showing himself a follower of Euhemerus.
The extant allegorical works written befo,re Plutarch are Alle-
goriae Homericae of Heraclitus, (in the time 01 Augustus), and
Compendium Theologiae Graecae of Cornutus (in the time of Nero).
They are both plainly Stoic in method, but exhibit widely different
purposes. While the book of Cornutus is but a tiresome list of
etymologies of the names of the gods and of their epithets that aims
to show that the whole hierarchy of the Greek religion was u, figura-
tive expression of phy'sical doctrine/o
7a
Heraclitus explains in detail
the true meaning of the passages in'TIomer that have been a.ttacked
as impious. : Many chapters from Heraclitu8 have passed into the
Homeric the Pseudo-Plutarchian de vita et poesi Homeri/
UII
und the Stoic passages in Porphyry's Homeric questions
lOD
and in
Eustathius'sllG comments upon the Homeric poems are so much like
the Allegoriae Homericae that they must all be supposed to have a
common source.
The purpose
111
of Heraclitus was to defend Homer against his
detractors. He began by acknowledging that Homer was'impious if
he were not allegorizing. But 38 he had not always' been a teacher or
Greek youth, he must still be considered as a sacred writer,112 and
although the foolish and unlearned may fail to understand the
allegories our duty to find. what he really in the appar-
witnesses see Diog. L. 10. 27, on Epicurus, Zeno and Aristotle; Galen de plac.
Hipp. 302 on Chrysippus. Yet Galen expressed his surprise at the generosity of
Chrysippns, i'n quoting passages that supported the doctrine that he was trying
to refute, Ill. 300. . .
11).1, Stoh. eel. I. 48 (s. 26). Arn.im. 11. fr. 1062, 1063. Other etymologies
are in the fragme'Dlts 1084, 1085, 1094, 1095, 10US, 1099.
Ohrysippus gave an allegorical inter.pretation of a picture, Clem. HQJn.
V. 1S.667; Origen c. Oels. IV. 48.540.
loa. PS. PIut. PJ.ac. 879 O. foIl., Stoic theories of the origin of
beliefs. .
107 Oic. N. D. I. 15. 3S. Cf. oh the Stoics in general H. 24. 62. On their
use of a theory akin to that. of Prodicns 11. 23. ,60-62; physical allegory n.
24. 63 foIl:: in this passage are many etymologies. On etymologies cf. also
Diog. L. VII. 147. On their physical allegory see Plutarch de Is. 367. C. On
psychological allegory. Plut. Amat. 757 B.
10T
a
His closing paragraph, however, expresses a firm belief in the wisdom
of the ancients; and proclaims bis own pious purpose of leading the young
to religion 'but not to superstition.
108 Schrader 11. 394.
lOt lb. 393 foll.
110 SchQW 227, 228.
111 Ch. 1. HJe referred to Plato with bitterness C. 4, 12, 17, 21; cf. above p.
9.
112 C. 1. Cf. Philo below p. 22.
21
Cl'
ently reprehensible stories.
ll3
He is t.he 80urce of all philoso-
phies.
lIt
Since he and the other poets have manifestly made use of
allegorieE, they have pointed out the way to interpret. their mVIl
works;m even philosophers use allegory.1l0 His allegorical explana-
tions of t.he battle of the gods will be sufficient to show his t.reat-
"ment of the myths as either psychological or physical allegory. After
allowing some plausibility to the suggestion that the hostile meet-
ing of the gods typified the conjunction of the seven planets and
the consequent destruction of all things, he pronounced the follow-
ing conception of the meaning to be cl earer and more in accordance
with Homer's philosophy.11T The poet opposed to vices, virtues; to
physical forces, their opposites; as, Athooa to Ares and Aprodite:
wisdom to folly and incontinence. Hermes to Leto: logical speech
to forgetfulnesl::l. Apollo to Poseidon: the snn to water.m
Philo had the same ideas about his sacred literrature
that the Stoics had about theirs. Just as He-rnclitlls believed Homer
the source of all wisdom, so Philo believed the Old Testament the
source not only of religious truth. but of all truth.120 'rruth was
sometimes expressed literally, sometimes figuratively in order that
it might accommodate itself to the weaker sort of men/
lIl
yet not
all men could grasp the hidd.en meaning/
22
as Heraclitus, too, recog-
nized. He reminds us again of H.eraclitus
l23
when he says that some-
times the sacred writings would lea.d to impiety or to atheism if
they were not understood allegorically.124 S0metimes both a his-
torical fact and a spiritual truth were conveyed by the words/
2ft
just
as Plutarch said of the Isis myth.12ft He gave "different .allegorical
explanations of the same thing,t21 again like Plutarch.
118 C. 3. Of. Pind.ar O. 2. 91, "Th,ere is many an arrow in my quiver, full
of speech to the wise, but for the many, they need interpreters." And frag.
of Soph. in Plut. de Pytbl. or. 400 F, god himsellf teaches the wise by riddles.
And Sallustius. de diis c. 3.
m O. 4, 13, 22, 34. "He is not only an allegorical philosopher, bnt even
an allegorical farmer/' c. 35. On Homer as source of wisdom see Sengebusch
1. 132, 133, 135, 137. But Sengebusch's acknowledgment of the debt oC Inter
writers to Homer is not exactly on the point in question, as it does not show that
the.y derived their dogma8 from the poet.
\ C. 5; at the end, an interesting contrast between ,,6 ).er0p.elloll and
T'o lItJtJUll.::lltJlI.
III O. 24.
117 O. 53.
118 C. 54-58. Cf. below pAO f. n. 216.
119 Since Ph-ilo's aIlegoristic is not applied to Greek literature but to the
IIrbl'ew Bible, it will be sufficient for tllis sketch. to bring out some of his
principles and methods as they are set down in Siegfried, 160 foll., and ZeIIer,
V. 347 foIl.
120 Siegfried 161.
l2l lb. 162. Of. Plato Rep. 376 E. l\fax. Tyr. X. 5. Of.l'lutarch below p. i$O.
122 Siegfl,ied 164. Of. Heraclitus, above p. 21.
123 Above p. 21.
m Siegfried, 165, 164. Of. ZeIIer V. 348.
125 Siegfried, 164.
120 Below p. 30, 31.
121 ZeIler V. 351. For Plutarch see below p. 33.
'>'>
(>' .,
We know little about the allegorical explanations of the gram-
marians. Aristarchus was opposed to the allegorical method of
interpreting Homer.
128
But he admitted etymologies of the names
of the gods,129 Crates of M-allus was a Stoic philosopher, and wrote
on Homer.
lOO
He described the throwing of Hephaestos from heaven
as a physical allegory.l3l He made the of Odyssey 12.62
equal to that nourished Zeus (upper ether) with
moisture.l32 Aristorchus
133
followed Eratosthenes
1u
in taking some-
thing of a historical view of the poems, while Crates held the St.oic
doctrine of the omniscience of Homer.13G
128 Eustathius p. 3, 40, 604. ct "Tolff, Pro leg. Sengebusch, I. 60;
124 foIl. on Aristarchus's relation to Plato.
129 Eustath, 571.
130 Suidas s. v.
131 Heraclitus, Hom. Alleg. c. 27.
132 Athenaeus, 490 B-E. Athenaeus says that Crates got this explanation
Crom l\Ioero IOf Byzantium. Of. Porph. and Eustath. Il. l8, Wl()lff,
Proleg. 278, 9.
133 Strabo, I. 31.
134 Strabo Il. 299; I. 23; I. 15, 3. Of. Sengebusch I. 42.
13G Strabo Ill. 157. Cf. "rolff I. c, susemihl, Gesch. Gr. Lit. I. 415,
Sengebusch I. 117. "The Pergamene school formed the third link in a chain of
allegorists, of which the other two were the Cynics and the Stoics." On
Craies see Schrader, 391 foil.; Sengebusch, I. 60
.
PART II.-PLlTTARCH.
Plutarch's allegorical interpretation of myths was the logical
consequence of his own religious belief and of his regard for reli-
gious traditions. He believed in a supreme being, immortal and
beneficent and wise, but not all powerful. God was not the cause of
an things, but only of the good/M for a principle of was inher-
ent in nature; this doctrine of the two principles of good and evil
at war witlt_.ea1J1i other was "held by most men, and by the wisest
mell."l38 Hut the principle of good was more powerful.
UII
It was
Plutarch's view that Plato taught that this principle of evil was
intractability of matter under the spirit of disorder.
Ho
The supreme
god assigned various fields of activity to his subordinates.
'u
This
divine power was universal, and was worshipped by all men,
although they called it by different names, and observed different
forms and rites in its se'l'vice; in their worship they made use of
symbols, often dark and misleading, so that some fell into super-
stition and others into atheism.14:l Although god could not control
SlI Cf. Plato. Rep. 379 B.
lIf De Is. 369 A foIl.
SII 369 D foIl.
u. 371 A.
140 De an. -proc. 1015 A, C-E. Cf. de tran. an.. 413 F foIl. Plutarcb
found no contradiction between Plato's earner and later discussions on this
subject: 'Plato often veiled his thought, and called tlle two opposed causeli
the same and the other r see Tim. 35 A]; however, when he was older he
wrote in the Laws [896 foll.l without enigma a'nd symbol but in plain words
that the world was not moved by one soul: it was moved at the lerust by two,
one the cause of good, the other of t.he opp02ite too good,' de Is. 370 F. Yet
in the Politicus 269 E Plato says explicitly that yO'u must not think that
there are twO' gOds who rule the wO'rld.
su But sometimes these snbO'rdinate deities were conceived of as ooly
names of the one god: 'Justice a'nd Right are said to be the assessors of Zeus
to' show that he cannot rule without them. But he is himself justice and
right,' ad princ. inerud. 781 B.
142 De Is. 377 F,
001 nap' oMe "at fI oMe "at /io-
aU' /ht1nep "at "at "at "at OdAat1t1a xoclJa nat1tlJ,
a' un' lJ.AAUJIJ, A()rOU T'OU T'aUT'a "at
"at aUlJdp.eUJIJ unoupriiJlJ ndlJm T'emrp.{IJUJ'I, IT'epat
nap_' "aT'a rerOlJat1t T'cp.a{ "at npOt1YJrop{ac "at 1PiiJlJ-
T'at o p.elJ o ae T'a Oeia lJoYJt1tlJ
00" eWH rap nallT'dnat1clJ aect1Caacp.olJ{aJ.l
WAtt1(JOIJ, of ae GJt1nep aett1taatp.olJ{alJ eJ.aOolJ GJt1nep
"PYJp.IJOIJ aOeOT'YJm.
25
all the forces of the universe, yet the order of the world was a
moral order; even fate moved by moral law, and men and cities
reaped the inevitable results of their own acts.
141
Apparently he thought that men of a happier age had had direct
inspiration from god, for he said that the source of all knowledge
that did not come through the senses was perhaps myth, custom,
or reason; therefore we have had three classes of teachers of relig-
ion-poets, lawgivers, philosophers ;144 and, "Plato, Pythagoras,
Xenocrates, and Chrysippus followed the ancient theologians in the
demon doctrine.
m
" The, atheiRti.cal view that lawgivers
religion in order to subject the people to their government is sug-
ges.ted by the remark that superstition is a valuable bridle in the
hands of rulers.
Ut
. However. : it is not conceivable that Plutarch
believed that religion in its higher sense was a conscious invention
of the lawgivers. Re doubtless meant that rulers of men took-
advantage of particular sl1petstitions, or, possibly, suggested some
superstitious ideas tha.t: would tend to subjec"t the masses. more
thoroughly. The men of ancient times who made myths and insti-
tuted religious rites possessed a. clearer religious truth than their
descesndants. For to the former the dark funereal rites performed
in the worship of certain gods were symbolic of grief at the pass
tng of the fruits of the earth, which were the g;ifts of the gods;U1
while to the latter these rites represented the sorrow of men for
the death of the gods themselves.
m
However, in spite of this belief in the wisdom of the ancients,
he did not go to the Stoic extreme of using Home-r and H!esiod as
sacred scriptures, to be defended against all attacks and to be ,relied
upon as infallible authorities for his own teachings. Homer was
See the whole passage 377 0-378 D. On superstition and atheism cf.
355 D, and de superst. 171 F; in the J::ttter passage much the same lrulguage
as in the Isis. Cf. HirzeI, der Dial. II. 218, Nach dem VOl'gange der akad-
emischen Skeptikel' hat er [PInt. in de Is.] sich zwischen den Abe'rglanben
des 'Volkes und dem Unglauben mancher Philosophen den Mittelweg einer
reineren und tieferen Gottes -erkentniss und -vel"ebrung gesuchrt:. On the
unity of God, cf. de Is. 382 D; de E. 3H3 A, B. On Plutarch's ide9. of
God, see! Volkmann-, H. 69 foIl., 248 foIl.; Zeller Ill. 166 foIl.; Schlemm 51.
ua De aud. po. 23 E.
t44 Amat. 763 O. Of. de Is. 369 B.
De Is. 360 E,. Of. de proc. an. 1030 B, theologians were the earliest
philosophers; in this place poets also are quoted to snpport the author's thesis,
so we again have the three sources of opinion. Of. Dio Ohrys. XII. D\Jl It.
foIl.: sources <>if belief in t'he gods are innate ideas, poetry, laws, statues of
gods, philosophy. S. Aug. de civ. IV. 27, the orator Scaevola sa,id that there
We'l"e three cIa sses of gods--the gods ()If the p.oetls. of the philosophers. of the
l'ulers. Cf. Aristotle above p. 10 on poets and myth-makers as teachers.
See Oakesmith, XIX. On the origin of religion, above p. 13 foIl.
140 De gen. Soc. 580A. Of. above p. 13.
UT De Is. 378 F.
HS 379 D. foIl. This is the answer of the faithful to nnbelievers lilre
Pl'odicus, see above 'P. 14.
26
certainly not sa.cred to him, for he freely blamed the poet's words/ill
and rejected poetic teachings about the gods or about virtue and
vice when they did not accord with his. own high religious and
moral he conside:red philosophers of so nLUch
greater. authority. than poets that he advised the readers of poetry
whenever they met with useful precepts to show that they were
fo,und in some philosopher also, in order that the precepts might
thereby gain in force.
1G1
. Poet.ry as a vehicle of truth fell be10w.
religious as well as below philosophy; and poetic myths
were. webs woven entirely of false threads, while religious myths
always. had an underlying woof of l\foreover, poetry
was less serious than the teachings of the priests its aim was
chiefly pleasure.
1M
It is just in this reasonable view of the popular
religious poetry that he especially differed from the Stoics. His
that the poets sometimes deviated from the truth
through their own mistaken beliefs
155
was in direct opposition to
Zeno's words, . that Homer sometimes spoke the exact truth, and
sOIp.eti:rp.es spoke in the form of popular beliefs.
1GU
Nor wa.s Homer
of peculiar authority to Plutarch; when he appealed to great writers
for testimoni51 and by way of illustration, he joined others -\vith
149 De aud. po. 15 0; 16 ID; 20 C foll.; Lycurgus c. 4.
1110 De aud. po. 16 D. foIl.
m De aud. po. 35 F. Therelfore his finding r
vliHh
fTsau1'ov (de and.
po. 36 A; Sep,tem 164 B, C.), and p."f)asv lir
av
(Sepiem 164 C) .in HOIDeI,
and Plato's 1'0 aa,xeiv xaiwv' elva, 1'OU da,xeifIl).a, in Hesiod (de aud. po.
36 A.. B.), is not a pl"oof that he held the poets the source of all wisdom.
. 152 De Is. 358 E.
1GB LYClll'guS c. 4. Pericles c. 1, 2.
1114 Twice in de aud. po. this alm was made most definite, 16 A,
xat XapW, oE, 7rAeifI1'(H [poets] au.oXOUfT'V; and 17A, 1'OU1'O ae 7!aV1'!
ar;AOV, 8n p.ulJ.o7rot"f)p.a xat 7rAafIp.a o.xpoa1'ou rerOlle.
,Mr. F. M. Padelford. in the intl'oduction to. his translation of Plntarch
de aud. po., Essays o.n tlleStudy and Use of Poetry by Plutarch 9.nd Basil
the Great, in Ya:le Studies in English XV, seems to. be a little unfair when he
says, p. 30; that Plutrurch no.where tells 11S what the aim of poetly is. As I have
shown abo're, he said explicitly in two passages that pleasure is the aim of
the poets. The translator seems to. have overlooked too educational purpose
Otf the essay. Naturally, as this is not a treatise on poetry, Plntarch did not
enter into a full discussio.'n of the aim of Po.etry. Butchef1', also, in Al'. Theory
of Poetry and Fine Art. o.'verloo.ks this distinction in his criticism of Plato..
chapter on The End of Fine Art, and Phitarch, p. 215, but gives AristQtle the
benefit of it. p- 218.
m De aud.po. 16A, cpeuaOV1'W o.o,aol. Ta a' F, 7rAe{ova a'
a. dAA' oiop.ev(H xat 1'0 17B,Tau1'a a'
xaTa dp"f)Tae xat n:{fTT'V aOTiiw, 1.()ufTe.., a7ra1"'f)v 7repe 1gewv xat llrvow.v.
See 16 foll. for a discussion of the top.ic.
11lO Dio Ohrys. LIII. 276 R. Cf. above p. 16.
m He appealed to poets as authority upou all so.rts of questio.Ilis. FOol'
instance, in, support o.f Plato's belief that liquids were BwaIlo.wed into the
lungs he referred not only to physicians but also to Euripides, Alcaeus.
EUPo.lis, Eratosthenes, de Stoic. rep. 1047 C, D.
27
Homer,' as Euripides, Pindar, Sophoc1es and Menander in de aud.
po. c. 4; and the Symposiacs are full of quotations from many dif-
ferent authors. He deliberately and confessedly extended the appli-
cation of a useful admonition or suggestion/os and praised Chrysip ..
pus for advising such a free use of literature.
taU
But t.his is a differ-
cnt thing from forcing
160
the meaning of an author in order to find
his own doctrine in the writing; that misuse of authorities he
explicitly condemned ;101 likewise the injustic.e of 'vresting a passage
from its connection.
1C12
Thus we see that, like
Plutarch found much to blame in Homer. Unlike Xenophanes, he
did not attack the poet; on the contrary, he wrote an essay espe-
cially to show how to use the poets, and in that essay he
edged the value of the teaching of Homer. Unlike Plato, he did
not write a Utopia, and therefore had no occasion to banish Homer.
He did not think it possible
l61
to banish Homer from an actual cnr-
1:08 Ex. corn. in Hes. fr. 51.
,;,:, De aud. po. 34 B.
leD 'l"'he meanings forced upon Homer and Hesiod in de prim. frig. MS
E, F, and 952 A are in an essay that is merely a rheto()l"ical exercise, and evi-
dently serious nor important in the author's eyes.
161 De def. or. 415 F.; de a'n. "roe. 1013 B.
162 Non posse 1086 D; adv. Colot. 1108 D. I do not recollect any passage
in which Plutarcb was himself guilty of this injustice. The arguments in the
works against thet Stoics are often quibbling, but the .088 of t:he books against
which they were prevents our kn.owing whethel' he treated their
words un.fairly. If Galen, de plac. Hipp. 300, 301, correctly qnotes Plutarch
in the Homeric Exercises he there directed the w:riter to choose from other
autll10rs whatever would support his own doctrines, but to pass by wbatever
was opposed to them. 1.'hat Plutarch found 'all truth in Homer, and used
him as support for his own <loctrin-es, is maintain.ed by Amoneit, de Plut.
Stud. Horn. 16 foil. What has boon given above is, a sufficient
refutation of tbat judgment. Cf. Hatch, The Influence of Greek Ideas, etc.,
p. 57, "There was an instinct in the Greek mind, as there is in modern times,
which rebelled against . . . tendencies to draw a mo()ral from all that
Homer wrote, and to read philosophy into it." In illustration he says that
Plntarch "said that Homer reflected faithfully the chequered lights and
shadows of human life, and sometimes that the existence of immorality in
Homer must clearly be allowed, but that if a balance were struck between
the good and ev,il, the good would be found largely to predomdnate." He
refers to Pllltareh de aud. po. 24. 25.
163 De aud. po. 15 A. It seems certain that no writer after Plato, espe-
cially a Platonist, could have touclred upon the exclusion of poetry from the'
tl'ainingof young men without having in mind Plato's banishment of the
poets from his ideal State. When Schlemm 20, 21 supposes that Plutarch
was not thinking IOf Plato, because he did not mention Plato, he probably
overlooks the different objects of the de aud. po. and the Republic. There
was no need, in a pl'RCuical treatise on educatiom:, to refer to the dream of an
ideal State. It is true t'hat Pllltarcru did not causas offensdonis (loius [Plato's]
refutare; he could not do that, because he agreed with Pla'to entirely that the
reasons did exist; but he adduced other reasons for keeping poetry' as a' part
of the educatio'n of young men. He defended the poets not merely by calling
attention to their 'habit of using false stories, chapter 2, especially 17 D,
chapter 7, but also by teaching the readers of pOl'try (1) to tlse their own
judgment and not to yield to the authority of great writers. chapter 9, or to
the example of heroes, cha.pter 8; (2) tOo admire t'he skill of the artist in
imitating human nature, not the things imitated, chapters 3, 7; (3) to observe
that the poet himself often condemns what is wrong, or brings t.he malefactor
to justice, chapter 4; (4) to feel less respect for the poets by noticing their
contradictions, and to oppose to the evil in a poet tbe virtuous words or deeds
28
riculum, nor, indeed, desirable/M for the gootl exceeded the evip6&
and poetry furnished a valuable propaedeutic tophilosophy.160
Plutarch would preserve the ancient faith of the fathers, and he
deprecated the discrediting of myths about the gods; for if one
story were shaken it would bring all religion under suspicion.
16T
Yet
he did not hesitate to reject such parts of the myth as offended his
moral or aesthetic sense; in recounting the adventur,es of Isis he
said that he omitted the parts that were .. a 108 and in
general he expressed himself as neither altogether believing nor
altogether disbelieving myths.
16D
They well'e not to be regarded
in the light of true relations, . .but from them should be
e:xtracted .. J "'piurcpOpOo;170 ...... 0 xa .. ti .. 1r1 Here is the key
to Plutarch's treatment of myths and religious rites; his interest,
as in the I..Jives, was mainly ethical ;lT2 and the .real meaning
was to be got at by an aUegorical xa .. a .. .. a.
of others, 200 fOo)).; (5) tOo understand th,e exact sense in which the poet has
used wOords, that is, whether literally or .metapiboricaUy, chapter 6. Of. belOow
p. 36 fOoll. .As Schlemm acknOowledges, Pluta.rch me'ntions many of the pas-
sages censu'red by PlatOo:
. Plato Rep ........................... Plnt. de aud. po.
379-TwOo jars Oof Zeus, 11. 24, 527 ............................... 241\.
379-Gods induce vioJ.a:tiOon of Ooath .......................... 24 n; B2 R.
379-Strife Oof the gods, 11. 20 ............... " ....... 20 E; 16 D, E.
,the destructiOon Oof a houEe, Aesch. NiOobe (7) frag ..... .J7B.
386-TerrOo'rs of death and Hades, 11. 16, 856, et aI. ............ 17 C fOoII.
388-SOorrow of Achilles, 11. 24, 10 and 18, 23 ........................ 33 A.
390-Achilles's abuse of AgamemnOon, 11, 1, 225 ...................... 19 C.
390-Adultery of Ares and AphrOodite, Od. 8, 266 ................. J D F.
391-Achilles's treatment 6f HectOor's body, 11. 22, 395 ................ 19 C.
164 15 A, B fOoll. Cf. Amat. 769 C, the power Oof POoetry bOoth fOol' gOoOod
and -evil.
165 Lycurgus, c. 4.
laa De aud. po. 15 F. 37B.
161 Amat. 756 B. Cf. Plat. Rep. 365 E, (words that GluucOon puts intOo
the mouth of the defender of an appearRIllCe of ju.stice) since it is fr'Om the
same source, namely, myths and poets, that we learn! of the existence antI
providence Oof the gOods, and of yielding to prayers and propitiation, we
must accept both dOogmas 001' neither. AlsOo Plut. cons. ad .ux. 612 D, since it
is more difficult tOo disbelieve than to believe the doctrine Oof om fathers Oon
the immOortality of the SOoul, let us preselrve the outward fOorm and keep ptire
the inner faith.
166 De Is. 358 E. 355 D, .. rov axp7ja't'wy acplJl1pa xat 1i:$pc .... iiJv rlcpfl.!{i$-
fJ.tVTW'I.
180 Amat. 762 A.
ITO De aud. po. 20 B, C, as philosophers use examples frOom histOory tOo
admonish and instruct, SOo poets invent and devise their oW'n stOories fOol' th
rmme purpose, and teach by their very myth-making.
In De Is. 374 E. Cf. de glOor. Ath. 348 A, B fOol' a definition Oof myths.
<5 p.ufJ.os elvac (3ouAe .. ac A(JrOS ii.A"J19cvijJ; here, however, there is
no necessary implication that a myth is an allegory. .
. 172 Cf. Oakesmith XX, "It is this desire of making the wisdOom and tra-
ditions of the past available fOol' ethical usefulness which actuates his attempt
to reconcile the contradictiOo'ns, and remove the crudities and inconsistencieg
in tpe three sources of religiOous knowledge."
29
I:n the essay on the Isis myth he developed at length this belief,
that religious tradition taught moral truth under a figurative
('Philosophy is hidden for the most part in myths and stories that
hold dim reflections of the truth; this the Egyptians signified by
placing sphinxes before their temples to show that their religion
contains an enigmatic
Ua
wisdom.
mn
"The myth is a representation of
some idea that has the power to suggest to the mind other ideas. ,,110
Often a reasonable explanation of objectionable things in literature.
and tradition could be found.lTlI Sometimes' the truth" in poetry or
myths was purposely hidden from the vulgar/TT The figuratIve and
enigmatic language served the purpose of arousing discussion and
of causing men to think.178
Yet a story that was used to convey moral instruction or
physical. fact was not, according to Plutarch, therefore necessarily
fiction. It might he a true account of the experiences of living
beings.
1N
In the interest of piety we should have to distinguish t.o
1TI Of. de Is. 366 C, and again D. alll('r!retlo.ac, and in. many other places.
Cf. de Pyth. or. 409 D, T'a a1Illr/LaT'a xat xat
T'O {J1I'1)T'01l xat fPallT'atTT'exolI. For woroalll(T'T'o/Lae
in Plato see above p. 8 f. n. 16. .,
m De Is. 354 O. Of. Amat. 762 ... <\., are scattered throughout the
I!}gyptitt:n mythology certain slight and obscure emanations from the truth.'
De Is. 354 F, Pythagoras probably borrowed his symbolic method from the
Egyptians. Cf. Iamblichus, Life of Pythagoras p. 103, the Egyptians taught
by symbols. Cf. de Is. 355 C, 357 F, for the Egyptian use of symbols not in
religion. . .
175 De Is. 359 A. Of. 358 E-359A; 3770; 378A, B (quoted below,' p.
33); fr. de daed. Plato Sec. 1. With the opening words of this fragment,
ere /Lell 0011 1t'a).aea fPUtTw).0r(a xa! 1T:ap' rI EU'1)tI' xa! fPutTe-
T'a 1T:oA).d [cf. T'a 1T:oA).a
in de Is. 3540], compare Dio Chrys. LIII. 275 R. forr the established belief
in later times tbat the earliest writers taught physical scien'ce by' myths.
For comment and many referen.ces see Lobeck I. 155 foIl. Of. de daed. Plato
See. 3, T'Q IiU/L(10).'XOII ell
But on these passages in this fragment see below p. 52 f. n. 286. With this
definition of the myth compare Ruskin's definition, Queen of the Air, p. 2, "A
myth ( ...... ) is a story with a meaning attached to it. other than it seems
to have at first." But surely the word is used both in Greek and in English
without any such implication. Cf. Plutarch's own definition given above p.
29 f. D. 171. .
116 De Is. 353 E. 355 B-D. De aud. po. 19 D. Of. 24B, words
sometimes employed in their usual sometimes in an unusual senf;.e.
Cf. de Pyth. or. 402 E. See Volkmann 257 foIl.; Zeller Ill. 198 f. n. 4.
177 De E. 388 F. Cf. fr. of S'o})hocles quoted with approval in de Pyth.
or. 406 F, god teaches the wise by riddles. Heraclitus, Alleg. Hom. c. 3,
Philo de somn. I. 656, 40; quod. deus immut. 11 (I. 280). '
178 De E. 385 C. D; 386 E. Of. Sallustius dediis c .. 3.' Of. Ruskin,
Queen of the Air, 22, you are bettE!lred by all great art "partly by a gift of
unexpected truth, which you shall only find by mining for it-which is
withheld on purpose, and close-locked, that you may nlOt get it till you have
forged the key of it in a furnace of your own heating."
m De Is. 358 F. Cf. Wyttenbach ed. Plut. :Mlor. XIII. 185, Fabula non
mere allegorics. ut cont('ndit .T nbloniskius, Panth. Aeg. P. I. p. 143, sed est et
histo.rica et allegorica. Cf. Philo above p. 22.
30
What class of living .beings the personages of any story belong.
their charf;l.cters, acts or sufferings were unworthy the dignity of
gods, as in the Isis myth, they must not be recogni7.ed as divine.
l6U
On the other hand.. to explain religious myths as of the
great men of the past led to atheism. Besides" it was improbable
that accounts of the doings of mere men: could ever be raised to the
level of sacred histories; if Alexander was not deified, wa.s it likely
that any human being was elevated to the rank of a god t
81
"Theffe-
fore they give the better account of the myth who judge that the
stories related of Typhon., Osiris and Isis give the experiences of
neither gods nor men put of mighty demons, whom I)lato, Pythag-
. oras, Xenocrates and Chrysippus, following tlie teachings of the
ancient theologians, described as more powcrfltl than men, but not
of unmixed divine nature, for they possessed both souls and bodies,
and were subject to pleasure and pain. As among men, so among
some are better, some worse."182 Osiris and Isis were trans-
lated from good demons into gods; Typhon remained a suffering
and malevolent demon.
l83
The compatibility of a mattcr of fact and
allegorical significance is explicitly' argued elsewhere. In the life
of Pericles, chapter 6, Pluiarch showed that both the scientist
Anaxagoras and the seer J..Jampon might be correct in their e-xplana ..
tions of the single horn of the ram given to Pericles. The one
showed the physiological cause of the peculiarity, the other it::) pro-
phetic meaning for the Athenian government, that it was soon to
have one leader, not both Pericles and Thucydides. It wa.s the
province of t.he scientist to investigate x 'r{IJWlI rlroll xat nWI) "llluu,
of the seer to pronounce "'Pal) .r{ rlrolJe xat '" O"7)lJ.a{nc. And those who
say that the discovery of the cause is the doing away with the signifi-
cance do not consider that they are setting aside the instruments,
"l'a "l'qIJTj"l'fl, of the symbols together with the divine relations.
Plutarch believed that in religious rites as in myths lay a hidden
"For there is nothing unreasonable nor mythical nor intro-
180 358 E.
181 359 E-360D. Cf. Diod. Sic. I. 13, 4 foIl., s'ame beneficent character
of Isis and Osil'is, but Eu'hemeristic explana;tion. On Euhemerism see above
p. 15.
182 360 D. Cf. de def. or. 417 8l1al) elJ "l'e p.u,9ocl) xat Bp.llocl) Ur(}Ul1C
Jtal "l'OU"l'O P.EIJ apnaral) "l'OU"l'O n-lalJal) 'lgewlJ xput/'ecl) "l'e xa1 tpuroS ;cat
la"l'peal), (Ju lJ.ewlI ell1CIJ dlla nalhjp.a"l'a xat "l'ul.ac p.1JTj/1.olJeuu/u:llac ot'
xat 8ullap.!IJ.au-rwlI.
l11a On dem6ns; 360 D-363 D. Of. de def. or. 415 foIl.; de E. 394 C.
Heinze, Xenokrates 78 foIl. Grote I. 378-381. Above p. 13.
18& Fr. de daed. Plato Sec. 1, p.alcl1"l'a b' o nept "l'al) "l'ele'l"al) OprWl1l1.ot xat
"l'a 8pwp.elJa IJ IepQupr{acr; "l'WIJ nalacwlJ tp.tpa{lIec 8calJowlI.
31
duced by superstition in the essential rites of religion, l)ut or some.
rites there are ethical and useful causes and others are not unill-
fluenced by historical or physical considerations.
mH5
"Ceremonies
were established by Isis. to commemorate her sufIerings and
wandel'ings and heT deeds of wisdom and courage; into the most
sacred rites she put images and hidden meanings and imitations of
her experiences to instruct and console men and women under like
affiictions. And she and Osiris, changed on account of their virtue
from good demons into gods, as were lateT Heracles and Dionysus,
receive honors of both demons and gods.
l8U
The most extreme ex-
pression of the spiritual value of religious observances occurs in the
fragment of his commentaxies upon Resiod; it is that propitiation
of the gods does not alter them, but helps US.
18T
His words on re-
ligious observances carried with thcm a peculiar authority, for he
was himself a priest of Apollo, and the book on Isis was addressed
to Clea, a priestess of Isis.
Plutarch's allegorical interpretation exhibited the same intellect-
ual habits and mental bias as his other literary activities, an absence
of historical perspective and an inclination to moral consideration
upon all occasions. While the uncritical spirit of his times and of
the temper of his own mind kept him from judging poem or myth
in the' light of the conditions <;>f its production, he was saved from
the absurdities of some allegorists by his rare common sense.
1HH
Re
explicitly objected to forced interpretations. r).C(1XpWS Oo).).Y)ropoU(1C; 189
and once in the AmatoriuslDo declined to make use of the slight
emanations of truth from the Egyptian mythology on the ground
that it required a clever pathfinder to follow the traces of
truth there. Poetry and myths and religious rit,es held for
The mysteries teach the nature of demons, de def. or. 417 O. Both tradition
and the mysteries of Dionysus teacli. immortality, cons. ad ux. 611 D, "And
since it is more difficult to disbelieve these things t.han to believe them, let us
comply with the custom in outward and public behavionr', and let our hearts
be more unpolluted, pure and sober," 612 B. Aet. R.om. 275 E, a religious
rite called a (1up.[io).ov of the gods' love of temperance. Of. Heraclitus,
Alleg. Hom. c. 6, mystic doctrines taught by secret religious ceremonies.
Demetrius Phal., Walz R.het Gr. IX. 47, 101, allegorical form of rnys-
tp.ries for the purpose of inspiring terrolJ." and awe, as in darkness and night;
for allegory is like darkness and night. See Lobeck, I, 133 foll., 166 foll. Hlwtch
59. Grote I. 388-392. On Plutarch'!> rational explanation of traditional
religion, Volkmann H., 252 foll.
185 De Is. 353 E.
186 361 D, E. Of. 351 F. foU., true followers of Isis obtain reason and
knowledge; her temple ' /(1eioll has its name from el(1op.ellwv .. a 15v.
18T Fr. 26, end. Of. Plato. Euthyphro 13 C fol1., for the negative part of
this doctrine, that the god,s are not benefited by our service; also Rep. 364 B
foIl., and Laws 885 B, 888 C. Positiv(> part, aid to man, in Laws 653 nnd
716.
188 Wytten.bach, XI. 162, remarks upon Plutllirch's probable and reason-
able methods of interpretation. Cf. Julian VII. 227 A, prais'e of Plutarch!s
myths and explanations of myths.
18D De Is. 362 A, B. For r).C(1xpWS see de aud. po. 31 E and Wyttenoach's
notes.
100 762 A.
32
him partial truth that had been perc"eived by the great men of by-
gone ages, "theologians, lawgivers, poets, philosophers ;" this rational
belief that all men had some truth and no man had all truth made
it natural for him to cling to tradition and to int.erpret it as he
chose. And it was easy for him to accept different kinds of inter-
pretation of the same story, as we shall see in his explanations of
the Isis myth, because nature was one, filled with reflections and
similitudes. And so he recognized many causes of religious belief
and observance
191
and supposed that sometimes several causes con-
to establish a rite.
102
With his sincere convictions
his figurative interpretations were necessarily symbolical in their
nature; allegorical interpretations in the exact sense, that is, with
substitution of physical or moral forces for the gods,
would be athpism, as he showed in his strictures upon the Stoics.
He has himself summed up his belief that myth and rite are only
aids to pious thought and life, and that their form in any particular
case is unimportant. "Therefore the garments in which the priests
of Isis are clothed after death are a '3ymbol that this divine reason
clwells with these priests, and that," having this and nothing else,
" go to that other life. For neither does a beard or an old cloak
JIlakea philosopher, nor do linen and a shaven face make priests
,o,f Isis; but he is truly a priest of Isis who accepts according to the.
religious custom of his country the stories about these gods and
the rites in their honor, and at the same time seeks by reason and
philosophy the truth that lies hidden in them.
mn
"If you have
listened to the stories about the gods so as to find the hidden truth
in them, and if, with holy and philosophic minds, you receive the
myth from those who expound it, and if you perform day by day
and zealously guard the sacred rites, but consider that a true belie!
about the gods is more accepta.ble to them than any sacrifice or
ceremonial, you will escape what is no less an evil than atheism,
superstition."lO&
Consequently, "if the Egyptians believe and tell this story (the
myth of Isis) as literally t.rne of the blessed and immortal nature,
that is to say the divine being, you oUj!ht, in the words of Aeschy-
Ius, to spew it out and purify your mouth.mUG }"llutarch was C011-
vinced that the Egyptians did no.t believe that their myths were
literally true; on the contrary, he claimed that they themselves
showed that we must "refer all things to reason.
m90
"r e know from
191 Of. Review of Farnell's Greek Cults in The Nation, 1897, Selpt. 2, p.
189.
192 Of. de Is. 353 E o"n four causes of religious customs, and 352 D-F, on
three causes of linen dress for priests. Of. Phllo above, p. 22.
193 De Is. 352 B, C.
104 355 C, D. ,
105 De Is. 358 E. Cf. Heraclitus Alleg. Hom. c. 1, Homer was most
impious if he were not allegorizing. On allegory as a therapeutic to myths
see Lobeck I. 155 foIl., with citations there given. Of. Philo above, p. 22.
106 378 B. Cf. 378 A, 354 0, 355 B, 379 D foIl.; Amat. 762 A (quoted
above, p. 30, f. n. 174), seem':! to imply the same thing. Cf. Oaksmith, 64: foIl.
33 .
ot.her so1lrces that the Egyptians did not confine themselves to. a
lit.eral acceptance of their religious tradition, but discovered in it
suggestions of higher truths. 'rherefore it is probable that PIu
tarch was generally copying t.he Greek writers on Egyptian
gion that had preceded him, the loss of whose works makes it
impossible to determine his sources. Moreover, in addition to
ing the Egyptian interpretation Ot myth and rite, these authorities
almost oertainly exhibited Hellenizing tendencies, . that is, they
applied to the Egyptian religion the allegorical method already
made familiar by the Stoic treatment of Greek Howe,ver,
eYen if there were little allegorizing in his sources, an author who
ascribed to the ancients his own pure religious beliefs would be
generous enough to suppose that thp. Egyptians found some rneans
to "cure" the disagreeable stories of their mythology.
"To refer everything to reason" did not imply tlmt Plutarch
considered that human reason is infallible; he was too reverent to
believe that men could comprehend all the designs of deity.
1VB
Nor
was it to give a rationalistic explanation, in the modern sense;
although one remark about d,reams is completely rationalistic: they
are, naturally, sometimes true by mere coincidence.
1D1I
And the expla-
nation of the story that the Thessalian witch Aglaonice drew the
moon from the sky is rationalistic: her knowlp.dge of astronomy
enabled her to for,eknow eclipses and so to pretend to occult pow-
ers.200 But with Plutarch "to follow God was to obey reason,"JOl
and the real problem of the pious allegorist was to explain the
apparently objectionable elements in religions tale and rite so as
both to preserve religious doctrine and observance and to free
them from all immoral and revolting and terrifying significance,-
in order to avoid the equally dangerous extremes of superstition
and atheism.201 .
Plutarch's method was in one aspect truly historical. He inferred
from the circumstances of a religious rite its orig-in, and thereby
explained away what at first sight seemed reprehensible. For exam-
lD7 Of. Iamb. de VII. c. '1 foil. on symbolic character c4 Egyptian
religion. On Egy:ptiau use of allegory see Sallustius de diil'l c. 4. On Plutarch's
sources and on Egyptian figurative initerpretation, see below pp. 61-64.
19S De Pyth., or. 409 D. dbullaTUJII lfllTWII Tip ).,0rClTp.ip 7rpOS
't'OU {}.eou aUl.1I0wlI. Of. de sera num. 549 F.
De dei. or. 438 A.
200 Oonj. praec. 145 C, D.
201 De aud. 37 D. Of. symp. 613 B, philosophy is the art of life.
202 De Is. 378 D, 1rWS OQII XPy)lTTbw tlTT! Ta,S' lTxul).ptJJ7rals xac dreM.t1TocS' xa t
1C'II{J{P.OCS' t'JulTiacS', Ta lIellop.ctrp.llla xaAWS p.'7jTe f{JupeclI TaS'
DeWII xa! trulITapaTTec" {)1Cot/Jlacs dT01COCS; Cf. Oakesmith 85, "Plut-
arch's attitude toward the ancient Faith may thus be defined as one of pa-
triotic acceptance modified by philosophic criticism." see all of pp. 85 and 86.
201 Cf. below p. 35.
34
pIe, he asked how we were to perform the sad and mournful rites
prescribed by custom anid yet preserve a pious belief in the gods.
2tM
"The season," said he, "leads us to suspect the true solut.ion, that
the grief exhibited as for the death of a god is in reality for the
disappearance of the fruits of the earth. As we say that one who
has bought the books of Plato has bought Plato, and tha.t Menan-
del' is acted when the poems of Menander are represented, so they
(the ancients) did not hesitate to call by the names of the gods the
gifts and deeds of the gods, honoring and reverencing those .gifts
by this use. But men who came later received these namesunin-
telligently, and ignorantly converted the life-history of the fl'UitS
into experiences of the gods, and not only called t.he appearances
and disappearances of useful plants the births and deaths of gods,
but actually held that view, and thus filled themselves with h.eretical
and confusing beliefs. Yet the Egyptians205 grieve for the
fruits, but pray to the gods, the authors and givers, to cause others
to spring up in place of those that have perished. Therefore it is
excellently said among philosophers2oo that men who do not under-
stand the meaning of words make an ill use of things .. too; as some
of the Greeks call statues gods, and have the hardihood to say that
Lachares pulled down Athena and thus unintentionally
accept immoral opinions, the consequences of the worils used.20T
The Egyptians suffe! this particularly in their worship of animals,
for, while the Greeks properly say and understand that certain ani-
mals are sacred to certain gods, many of the Egyptians worship the
anim.als themselves as gods. Dangerous beliefs reslllt; and bring
the weaker sort into superstition, the bolder into atheism.,,208 The
teachers of doctrine used language metaphorica.lly : Poets and
philosophers used the name of the god more particularly to express
the element or force presided over by the god; theologians and law-
givers used the names of the gods for things useful to men, divine
gifts, or for the symbols of the deity designated. And yet in this
very topic we find Plutarch particularly unhistorical in his criti-
cism of tradition. He assumed that the ancients had a purer reli-
gious belief and knew that the fruits of the field were not gods,
204 Of. above f. n. 202.
20G Plutarch has here, accQrding to Pal"they, 260, brQught Greek cQndi-
tions to. bear upon Egyptian custQms, since in Egypt the winter is nQt severe
enQugh'tQ cause so marked a Change in the aspect of vegetable life; cf. 366 C
foIl., and Parthey's CQmments upon that passage. These explanations are,
therefQre, probably Plumrch's own suggestiQn, at least 'not derived frQm any
Qne well acquainted with the climatic cQnditions Qf Egypt. In the phystcal
interpretation of the- stQry that Osiris aided Zeus when another divinity rose
in revolt against him, although .... Plutarch says explicitly that the E;gYl>tianb
called the air Zeu&, the expressiQn has too Greek a sound to. leave much dQubt
that it was a H:ellene who first suggested this mode of dealing with the myth.
208 Of. Plato. Orat. 435 E.fQr thE:' form of expressiQn; but 436 folIo fQr
the danger of being deceived in things, if we rely upon names that 'may have
been assigned by men who. themselves misunderstood the things.
ICIf dllop.a(ftll.
IOS 378 D-379 E. Of. 355 D and the essay de superst.
SlS
but gifts of the gods ;2(9 that Homer knew that Zens was not the
cause of evi1:
10
This confusion in the use of words was, he thought, one cause of
the blame bestowed upon Homer; therefore he maintained that if
a student was to be helped and not hurt by Homer, he must under-
stand the exact sense in which a poet has in any special case used
words admitting more than one meaning, especially the names for
the gods and words for good and evi1.
211
For eL"'{ample olxos is some-
times a house, sometimes property; (j{u'ros sometimes life, sometimee
possessions. To come to "greater and more important matters,"
young men must be taught that the. poets used the names of the
gods, sometimes having in mind the very gods themselves, some-
times 'rwas cliv o {)eor. It;e xar. xa{)7jre/LOvES O/LWVU/LWS 7rpOl1arO-
peuov'res.
2
l!J. Thus Hephaestos is fire ;21'1 Ares war ;'.!J.4. or a weapon;m Zeus
fate.
216
In this way, he continued, ought we to correct many things
208 De Is. 378 F, xap7rwv otJs of 7raAawr. /LSV ovx 1I0/Le'OV, aUa
1gewv avarxaia "ar. /LerdAa 7rpJs 'rJ 'ijll arp{ws "a!
210 De aud. po. 23 D, OV rap 'rov {)e()JI 0 oreme /L7JXava.l119ae
'rocs av{)ptfmoes. "
But, he went on, even fate, for which the name of the god here stand'S,
was not wholly insensible to moral consideratiO'ns; for cities fall or stand ac-
cording to the ill or good conduct of their affairs. Fate was not blind, but
outside man's powers of calculation, 24 B, 'ruXy)S 1; e/Lap/Lv'1)S AerOp.VWV,
EV ars 'r6 al1UAA.tJreO"'rOv aldas l1'1)I.J.a{vemc xar. [JAWS ov xalP
Against similar modern assumptions of the, wisdom of the original myth-
makers see Gl"ote, I. 388, 389; Gruppe 1. 34 foIl. Cf. above p. 26. '.
211 De aud. po. 22 D. The topic fills pp. 220-25D. On the transference
of names of gods to the things typified by . them see Aristotle in Porph. Hom.
Quaest. 11. 2, 447 (Schrader, p. 44, line 29, foIl.), and Schrader's comments
on the topic, p. 425.
212 De aud. po. 23 A. Cf. below p. 37 foIl.
'. Lobeck 1. 156, says, "This physical explanation of myths was greatly
helped by the habit of the natural philosophers of calling the elements by the
names of the gods. No example is found in Homer (for the ca1ling war and
fire Ares and Hephaestos is a different thing)." Probably Lobeck thut
Homer always hlad a reverent consciousness of the god as giver or uiTector of
the natural force, evidently the idea that Plutarch had of this use of the
names of gods by such of the ancients as were worthy our belief; the 'natural
philosophers, on the contrary, lost sight of the god in the thing, and were in
many cases using the divine names for r'hetorical effect.
De aud. po. 23 B.
214 C.
21G 11. 7, 329.
210 23 D foIl.; See n. 1, 5, and Hes. O. D. 86. Upon the use in O. D.
717 of/Laxdpwvfor'ruly,f Plutal'ch remarks that the "poets had not yet the word
'ruI'1) but used the name of the god for 'rijs xat aop{l1'rws 7repule-
pO/Lv'1)S 1l1xupav af/uAax'rov oOl1av av{)pw7r{vfl! AOrel1/Lip,
just as we are in the habit of calling things, characters, men divine." So in
26 E Plutarch interprets Athena in n. 1, 220 as reason.
36
that seem to be improperly said of Zeus, as lI. 24, 227; 7, 69; Od. 8)
81. But whenever anything is said that is fitting and reasonable' and
appropriate, there let us suppose that the god himself, xup{wr;,
is named. Compa,re, "rrhis is the explanation most fitting the
gods.,,211 Like these figurative uses of the names of the gods was the
employment of (i.ps!'7j for the worldly reputation or power that a
man's virtue helped t.o bring to him; "just as the fruit of the olive
is called an olive, of the fig a So also poets used
and eMatp.oll{a.
2U
These explanations assume that the poet spoke metaphorically,
not, in the strict meaning of the term, allegorically. But they illus-
rate lllutarch's understanding of the non-literal use 01: words in
the most important subjects. Besides, it is .practically
to draw a dividing line between metaphor and allegory; a.nd lh:! can
never determine how. just are .. ,Plutarch's censures of the Stoics for
atheistic or the gods with moral or physical phe-
nomena. Perhaps. they, too, intended to say that the poets made
use of p.e!'acpupalr; xal xa!'axp7jfTefJ't '1"(0 v alJOp.a!'wv.
220
He reproached
Chrysippus for his atheistical etymologies: "He 'derived Ares from
allatpeill, and made of the god nothing but the contentious part
of man's soul. Others will say that Aphrodite is desire, I-Iermes
reason, the Muses the arts, and Athena wisdom. You see the
abyss of atheism swallowing us up if we transform each of the
gods into 7ra{}'1). xal. buvap.etr; xal ape'1"ar; ."221 The same warning
was given with reference' to physical explanations: "Instead of
leaving the gods free, as drivers or the Stoics nail and solder
them to the elements as statues to bases, so that they suffer change
and destruction."222 "We must take care that we do not resolve the
gods into winds and waves and the seed and fruit of the fields and
7ralh; xal p.e'1"a(joM.r; wpiin; as Dionysus
223
into wine and Hephaes-
tos into fire; and CI,eanthes derives Persephone from '1"0 btd '1"(OV
i!ap77:wlI xal rpOIlWO/J.S'J()V 7rIlEu/J.a.
22
' lIen who do this are like
217 De Is. 383 A. Of. Pllilo. we must allegorize when anything unworthy
the divinity is said, Siegfried 162 foll.
218 De aud. po. 24C-E.
210 24 F; 25 A., B.
25 B. Of. de Is. and t'he fr. de daed. Plato pa88im for this metaphor-
ical explanation of myths and rites, sometimes helped out by etymologies.
221 A.mat. 757 B. In 765 E the rpap.p.a'1"tXf) { are said to have ex-
plained the myth that made Iris the mother 0If liJl'oS as an a.llegory of the
many colored and youthful passion of love. but that speaker who seems to
Plutarch's vie'Ys dissents from this suggestion.. Cf. deauo. po. 31E,
obJectH>n.s to etymologIes of Cleanthes and Ohrysippus.
222 De def. or. 426 B, C.
228 When Plut:a.rch. in de aud. PO .. 15 E. refers to .the story of Dionysus
and Lycurgus as If Dlonysus were wme, he was certamly understanding tlIe
name as used metaphorically and not really allegorically (Cf. above p. 7 f. n.
7), that is, not with strict identification. Alleg. Hom. 35 and
30 consider this story an allegol'Y of wine-making.
Cf. Cornutus c. 28, 7rOIlWV rptpEfT'?a!.
3'1
those who fancy the sails and anchor the pilot. But they incul- ,
cate dangerous atheistical doctrines when they apply the names of
gods to lifeless,. perishable t.hings, which are under the
control of man; for it is not possible that men consider such things
as these godS.,,22G
Moreover, "even the sun has caused nearly all lllen to ignore
Apollo because as a sensible image it has turned the mind from
reality to a mere appearance.,,226 The true relationship was that
of physical counterpart to a spiritual Or" ngain, the
divinity presided over certain departments of mental activity or of
the physical world, Ares over the fiery part of our nature, A ph-
rodite over love.
228
The form of expression in his allegorical expla-
nations often suggests the relationship of the god to the thing: if
we allot to Typhon whatever is disorderly in nature: but con-
sider as the work of lsis and the image of Osiris whatever is ordered
and good, we shall not go wrong.
229
7rep't r.a(J(J.lJ (l.ya,90u
p,oip(J.II 7rall X(J.A.611 xat rlyar96 11 ,sUI
ur.adxcII 280 Horus is the force that presides over the appointed
revolution of the sun.!ldl The Greeks think that Dionysus is XUpWII xat
of all the nature of the moist.
232
They call not only the Nile
but in general all the moist an iir./JppO'1)1I of Typhon
was the of earthquakes, ,atc.
234
After various stories
about Typhon with physical interpretations Plutarch added,
"Hence it would not be unreasonable to say that each story
in particular is not true, but that all taken together really teach
the truth. For it is not right to say tha.t Typhon is drought, wind,
sea, or darkness, but whatever nature holds of the. injurious and
destructive is t.he portion of Typhon.
2IG
The only genuine extant work of Plutarch that bears directly
upon allegoristic is de Iside et Even the de audiendis
De Is. 377 D, E,. Cf. below f. n.
226 De Pyth. or. 400 D. Of. ad prine. iner. 780F and 78ID', the sun as
an image of god. But Plutarch i'nterpl'eted some the epithets of Apollo 3'i
really belonging to the sun, de late "iv. 1130A. They showed the popular
belief that Ap()llo was the sun; the very name of Hades showed the belief
that this god was darkness, de late vi". 1130A. -
227 De def. or 433 D, E; de E. 393 D foIl.
228 Amat. 7570, D; the la'nguage is very suggestive, "Ap'1JlI x(}rrp.ovIIT'a
xa't (ipa(idJwlJ p.ri/IT'US
De Is. 376 F, 377 A.
280 377A.
231 375 F.
212 365 A.
281 365 B, 366 A; in the latter the land is called t'he body of Isis.
28' 373 D.
2B5 369 A.
28ft De vita et poesi Homeri is genE-rally acknowledged to be spurious.
Nor is it 8 collection of excerpts from Plutarch, but such likeness as exists
comes rather from tbe use of a common source; see Bernardakis Teubner ed.
Plut. Mor. VI. praef. XXVIII. The Homeric Exercises is lost. The com.
in Hes., so fal" as it survives, is not allegorical. The commelilt in de virt.
mor. 446 A, B on several verses is not really allegorical interpretation, for
38
poetis contains only one or two allegorical explanations. 1.'he Isis
myth, however, is sufficient in itself to show Plutarch's feeling
towards religious tradition and to caU forth various modes of inter-
pretation. It could not be rejected, for that would unsettle reli-
gious faith; for the same reason it could not admit a Euhemeristic
explanation; it could not be received literally" for that would be to
harbor an abominable superstition; the names of the gods could
not be identified with natural phenomena, for that would engender
atheism. It contained good and evil beings, and was thus a vehicle
for Plutarch's doctrine of two principles in the world. It could
be accepted as a true relation of the lives of demons; it could be
taken as a symbol of moral and cosmogonical and physical truth.23T
It could be at once a symbol of spiritual and O[ natural truth,
because nature was an image of spiritual being, as the sun of
Apollo; and the three clasAes of intelligent beings-gods, demons,
men-were represented by three corresponding classes of heavenly
bodies: sun, moon, and comets.
2BS
Another example of his finding
correspondences between the natuTal and spiritual realms is that
the Egyptians called the dog Hermes, not wp{w<;, but because
the philosophic character of the animal typified the most logical
of the gods.:zao
After rejecting the mytl1 as an account of the lives of gods or
of men, and accepting it as a true history of the lives of demons.2ma
Plutarch passed on
240
to the of the "more philoso.
phical" students of the story; that is, those who found a deeper
thought under the demon myth. His own object in t.he allegorical
interpretation of the Isis myth was 'to fit the Egyptian theology to
I>lato's philosophy of the origjn of the world fl'l developed in the
'rimeaeus.,2u But he admitted any in.terpretation that did not con
flict with his broad spiritual and moral views of religion. His tolcr
the poet seems to have e1xpIicitly made use of similes, and Plutarch only c1e\'el-
oped the ef.unv. The same may be said of the interpretation, of some
Pythagorean precepts, sym. 7270 foIl.; they were, of course, l'E'al allC>g'ories;
cf. word in C.
2B1 Of. Lafaye 6, to the Egyptians this story was "un seul mythp., a la
fa-is naturaliste et moral." Of. Ruskin, Queen of the Air g. "In
all the most beautiful and enduring myths we shall find, not only a litera]
story of a real person,-not only a pa,rallel imagery of moral p'l"inciple,-but
un underlying worship of natural phenomena, out of which both have sprung,
a'nd in which both forever remain Tooted." Plutarch attributes many of 'his
explanations to the Egyptians; it is improbable that any of them were origi.
nal wi th him, exce'pt, perhaps, the demon theory and a fi tting of the msth to
the philosophy of the Timaeus.
288 De def. or. 416 D. On nature as a model for men, see de sera num.
000 D; de am. pro}. 493 E. On similar notions among the Stoics, Ok. N. D.
H. 14, 37; Tus. IV. 26, 57; de sen. 21, 77.
280 De Is. 355 B. Plutarch refers to Plato; see Rep. 375 E.
230
0
Cf. above p. 31.
lto 363 D foIl.
241 371 A. Heinze, Xenokrates 31-33, gives a brief summary of Plutarch's
accommodation of the llIJ'th to the Timaeus philosophy. Of. Parthey VIII .
Plutarch probably the first to show the likeness between Plato's metaphysics
and Egyptian theology.
39
ance, and his belief in the universality of the divine. f o r c e ~ , both
essentially Greek ideas, will appear best from his own words.
363 D.-368 F. Osit'is the tnO'i8t.
"As the Greeks allegorize Cronus into time, and Hera into air,
and the birth of Hephaestus into the change of air fo fire, so to the
Egyptians Osiris is the Nile
242
that fertilizes the land, that is, Isis,
and Typhon is the sea, into which the Nile falls and is scattered far
and wide, except such part of it as the land retains. And thHre is
a sacred lament for Cronus that celebrates him who is born on the
left ,and dies on the right; for the Egyptians eaU the north the right
and the south the left. So the Nile, which rises in the south ana
disappears towards the north in the sea, is naturally said to have
its birth on the left and its death on the right. Therefore the
priests hate the sea and call it the foam of Typhon. And they dil
not allow salt on their tables, nor greet pilots.. And this is not the
least reason that they discard fish/-l
S
and they use the picture of a
fish as the hieroglyph of hatred.
m
This is the most common
account."
From this simplest form of allegory, Plutarch passes to a higher
step:
364 A. "But the wisest of the priests call Osiris and Typhon
not only the Nile and the sea, but in general they call Osiris the
principle of the moist/
45
for they consider moisture to be the cause
of generation and the essence of the seed; but Typhon they called
the drought and whatever is opposite to moisture.
246
Therefore they
think him red in complexion and avoid men of that appearance.
But they say allegorically that Osiris was black, because water
makes everything black with which it is mixed. The hu.ll
that is worshipped in Heliopolis, called Mneuin, is black, for it is
sacred to Osiris.
"And they say that the sun and moon do not travel around in
chariots, but in boats; now this is an enigma of their nourishment247
242 Part'hey 228 f. n. quotes Lepsius, "In der Goetter procession vor Otsiris
in Deridea k:t eine der ersten Figuren der Hbirende Nil-gott."
243 Cf. Sym. 729 B on the dislike of the Pythagoreans for fish, "The Nile,
the deflux of Osiris, perishes in the sea, and when they mourn for Osiris as
born on the left, etc."
244 See below p. 63.
245 Of. Sallustius de diis c. 4, Isis land, Osiris the moist, Typhon heat; or
Cronos water, Adonis fruits, Dionysus wine.
244 Cf. de prim. frig. 950 E., Homer, mOle like a 'natural philosopher than
a poet, O'J.)posed Hephaestos to the river and Apollo to Poseidon. Cf. Heracli-
tus above, p. 22.
Not unlike these interpretations of the Isis mytb that make the story a .re-
cital of the opposition of physical forces are some modern explanations of the
Beowulf myth. Muellenhoff, Beowulf 1 foil., says that Beowulf is the sun
and summer overcoming' the wildness and destructiveness of the sea. Of.
Thos. ArD.old, Notes on Beowulf, ch. 9.
247 Of. 355 B, the picturing of the sun 8S a young. child on a lotus flower
is a symbol of sunrke and of the sun's nourishment by moisture. In de Pyth.
or. 399 F foil. Plutarch ridicules the Stoics for explai'ning the frogs and water
40
and birth from the moist. They think that Homer
2411
as well as
Thales had learnt from the Egyptians that wa.ter is the souree of
all. things; the ocean is 08iris and Tethys is Isis, the nurse,
'C"dJ.Tj'lltJUfJ.iYTjY,. of all things. The Greeks call Dionysus the
rainer, B7?, as lord of the moist na.ture. anI he is none other than
Osiris; for Hellanicus seems to have heard Osiri8 called by the
priests Rysiris.
"Proof that Osiris is the same as Dionysus . . . may he drawn
from the burial rites of Apis which strikingly resemble Bacchic
exercises. . ],{oreover, the stories of .Dionysus and the
Titans
2
'9 agr,ee with the discerptions and palingenesis of Osiris; and
the stories of their tombs are similar . . . That the Greeks be-
lieve Dionysus the lord not only of wine but of the moist in general
PindarWl is a sufficient witness when he says,
joyous Bacchus send increase of fruit,
The chast.e autumnal light. to all my trees.'
For this reason the worshipers of Osiris also are forhidden to de-
stroy a cultivated tree and to stop up a spring. .
U A proof that they call not only the Nile but in general all the
moist an efRux of Osiris is their cnstom of carrying a water pitcher
in the processions in honor of: this god. A fig leaf is the hieroglypb
for both king and the south,251 because it is the symbol of fruitful-
n.ess. This character of fruitfulness of the god is shown by various
rites in his honor and by various details of the myt.h. And there is
another. Egyptian story according to which Apopis t.he brother of
the Sun made war against Zeus; after Zeus had. conquered by the
aid of Osiris he adopted Osiris and called him Dionysus. This tale
touches upon physical truth, for the Egyptians call the air Zeus/:.:l
snakes R11 offering to Apollo as typifying the nourIshment of the sun
by moisture. His own interpretation was that they stood for spring, when
the sun renewed his strength. There is no real contradiction, for in de Isis
Plutarch is confessedly giving the interpretations of others, oftenl explicitly
of the Egyptia:n priests. In de Pyth. or. 'he is le!ss serious, and the subject is
less serious, merely an artist's conceit instead of religious ideas earnestly held
by a large number af people.
H. 14. 201.
249 Of. de esu. earn. I. 996, the sufferings of Dionysus and the violent
deeds of the Titans agai'nst him seem to have been au enigma of palingen.esis;
for tlIe unreasonable and violent and disorderly part of our soul, whiCh is not
divine but is demonic, the ancients called that is punished, and
paying a penalty (f!f. 't ('10U(Tat in the same passage a few lines above).
Just above this passa.ge Plutarch had said that Empedocles wrote an allegory
of the soul's i'ncorporation into a body as a punishment for its misdeeds, but,
as the verse seems to h'ave fallen out, we cannot determine whether Plutarch
hns forced this meaning upon the author or whether the poet really wrote an
allegollj1. Cf. Plato, Crat. 400 C, this idea of incorporation as a punishment.
is an Orphic doctrine. Of. also, the Oirce myth was an arY!rtJ.a of metem
psychosis. fr. inc. 146 from Stobaeus eclog. 1046. For Bernardakis's retllSOllS
for assigning this fragment to Plutarch see Vol. VII. Praef. of his edition.
2;;(1 Fr. in Bergk. 1 p. 4HH.
251 See below 63.
252 One of the speakell's in de fac. Lun. A says that Zeus in Alcman's
41
hostile to which is the drought; this latter is not the sun, but is
akin to the sun; and moisture, by quenching the excessive dryness,
increases the exhalations that feed the air.
"Another proof of the identity of Dionysus and Osiris is the
Egyptian name for ivy, chenosiris/
1I3
which signifies, as they say,
the plant of Osiris
365 F. "They suppose that the star Sirius belongs to Isis, becausH
it brings on the high water. And they honor the lion and adOIn the
entrances to the temples with lions' heads because the Nile rises
when the sun enters the zodiac sign Leo. Just as they consider the
Nile an efflux of Osh-is so they hoM that the body of Isis is the
land, but not all of it; only so much as the Nile fertilizes. And
from this union of Osiris and Isis is born Horus. Now Horus is
that salutary season and mixture of air that they say is nourished
by Leto in the marshes about Buto; for the rain-soaked earth best
produces those exhalations that quench the dryness ,of the air. Anc1
they call by the name Nephthys those parts of the land that are
farthest from the Nile or that touch upon the sea therefore they
name N ephthys the End and say that she is the wife of Typhon. But
when the Nile has an excessive overflow and approaches the out-
lying lands, this they call the intercourse of Osiris with Nephthys,
that becomes manifest by the plants that then spring up there; one
of these plants is the melilot, by which the myth says that Typhqn
discovered the injury done his bed. On this account also Isjs bore
Horus in wedlock, but Nephthys gave bhth to the bastard Anubis.
In the annals of the kings they write that N ephthys the wife of
'fyphon was at first barren; if they say this not of a woman but of a
goddess it is an enigma of the desert parts of the earth.
"The conspiracy and rulef of Typhon was the power of drought
that ove,rcame and scattered the moisture that produces and in-
creases the Nile. His ally, the queen of the Ethiopians, is an enigma
of the south winds that blow from Ethiopia; for when they over-
come the clouds that the Etesian winds carry towards Ethiopia, and
prevent the rainfall that increases the Nile, Typhon flames up irre-
sistibly, and shutting the Nile up in its channel thrusts the stream
now become weak and small into the sea. The story that Osiri8 was
enclosed in a box seems to be nothing but an enigma of the Sll b-
sidence of the water. Therefore they say that Osiris disappeared
in the month Athyr when the Etesian winds fail and the Nile re-
turns to its bed and the land becomes bare; as the night lengthens
and darkness increases and the light grows fee.ble, the priests per-
form dark and sad rites; one of these is to cover a cow with a pall
in sorrow for the goddess (for they consider the cow as well as the
verse Ll -8urdT7Jp "Epaa "PlPC "at was the air. Same verse
and same interpretation in sym. 659 B, C. Cf. Aet. Rom. 40, Zeus the air.
But 7'7. Zeus the sun and Hera the moon.
1118 See below p. 63.
42
land an image of Isis.) These ceremonies last four days beginning
at the seventeenth, for they grieve for four things, the subsidence
of the Nile, the cessation of the north winds before the blasts 01
the south winds, the shortness O'f the day, and the bareness of the
earth accompanied by the falling of the leaves. On the nineteenth
they go down to the sea by night, and carry with them in the sacred
chest a little golden box; into this t.hey pour potable water, and
raise a shout that Osiris is found. Then they stir into the water
fruitful earth and precious perfumes, and form a moon-s,haped
image" which they dress and ad.orn. By these rites they show that
they consider these gods to be the essence of earth and water.
367 A. "But when Isis had again received Osiris and had nur-
tured Horus, now grown strong by e,xhalations and mists and clouds,
Typhon was 'subdued but not destroyed; for the mistress of the
earth did not permit the principle opposite to the moist to be
utterly destroyed, but only restrained, since she wished the mhcture
to remain; for the world would not be complete without the fiery
substance. If these explanations are not reasonable, neither
would one reasonably reject that story of Typhon's ancient rule over
Osiris's kingdom; for Egypt used to. be sea; in proof of this, even
now may be seen many fossil seashells and the many springs and
wells have a brackish flavor, as if the sea had left some remnant of
. itself. But in, time Horus conquered Typhon, that is, when a rainy
season came the Nile thrust out the sea and showed the dry land
and enlarged it by deposits. What we even now see is a proof of
this; for as the river brings. down new mud and carries forward the
land it forces the sea to retreat before the deposits that fill up the
deeps of the water. These interpretations are like the
theological beliefs of the Stoics; for they say that Dionysus is the
fertilizing and nourishing air, Heracles t.he violent and disturbing
air, Ammon the rece'ptive, Demeter and Core the air that goes
through the earth and the fruits of the earth, Poseidon the air
that goes through the sea."
367 0-368 P. Osiris the jJoon, Typ1ion the Sun.
"The interpreters who join to these physical explanations some
astronomical principles think that the world of the sun is called
Typhon, that of the moon Osiris. Por the light of the moon is pro-
ductive and brings rain, and is propitious to the birth of animals
and the sprouting of plants; but by its fierce light the sun burns
and dries up the growing things, and renders the greater part of
the earth uninhabitable by its hot flame and often subdues the
moon. Thel'\cfore the Egyptians always call Typhon Seth [Set],
which is the force tha.t overmasters and compels by violence. And
they recount in their myths tlult H eraC'les sits in the sun and is
carried around with it, but that Hermes sits in the moon; for the
motions of the moon are like the deeds of reason and of remarkable
wisdom, but the motions of the sun are like strokes that violently
43
eKf.end oeyond pro-per Ifmfts. Ana tlie S'toics say tliat tIie' surr is;
lighted and fed by the sca, but thR.t the f1'esh springs and l.lkes
up to the mO(1};l1I; a pI ea's ant ruld mild exhalation.
"The Egyptians have it in their sto:uies that the death of Osiris
feU upon sevente'ell.tit, the' day wticli the' full moon appearsp ,
. . . . Some say that Osi1'ls lived twenty-eight Yem's,. oihers that
ne ruled twenty-eight yeals; :for tllis is tRe' number of the d.1YS of
the moon. In the ceremonies caRed tJ!re' burial of Osins tIrey faslHou
a box in a crescent slape; because wlleD the mOOD; approuches the'
s-un it assumes this shape' at the- :mo-ment of its disappearance. 'fhey
employ the' discerpHon 0]' Osins inio fourteen ptlIll'ts a's- an enigma 0]
the number of davs in whicn the moon wanes'. . .
''''Mor,e<)ver, theY t]rink that tIle' rismg tne- Nile- mas some rela ..
tion to the days of thfil' moon; for the- greatest height,. which hap ....
pens at Elephantine; is twenty-eight cubitS;, the measure of the
moon's and that ib' lo:west rise IS six cubits at lfendes and
Xois, the measure 0f the half moon; and it!; middle heignt is usually
fourteen cubits at ]femphis,. which te: the' daysnp to
the full moon. The birth of Apis, mi animaite image of Osiris,.
takes place' wllen ar fruitful1fgIlt falls f:rrom the mooo: npon the cow.
Therefore- many things about ApiS" oe-a:r ff resem'blanceto form
of the' moon,1 io.1t Apis has light and da:rDi, colo:rs. Furthermore, on
the new moon of Phamenoth they a feast" whicl1 they call
the entrance of Osiris into the moon, and this is" the oeginning of
8'priing. As they place the power 0'( Osiris in the moon 80 thcy say
that ISls, that is, gene'ration, dwells with him. Tnerefore t.hey call
tIle moon the mother of'the world, and think that it has both the
male and the female natures, since it receive!:! fertilization from the
sun and then s-ends- fortI} life-giving principles. For th'Typhoman
destruction does not always prevail, but is often overpowered and
bound by generation, then is released ,and contend's with HorlIs
again. . .
goS D. "And some make the myth an enigma of the eclipses.
For when the moon is at the full, that is, is opposite the sun, it is
e'clipsed by falling into the shadow of the earth, as they say that
OSlris feU into the box. And in turn the moon itself hides the SlIn
but not completely, as ISls did not destroy Typhon. After Nephthys
had :borne Anubis ISls adopted him, for N ephthys is the hidden
parts of the world that lie be"low the horizon: but Isis is the part
that is above the earth and in plain view. But the circle that
touches both and is called ihe horizon is common to both, and
been named Anubis and is HI('ned in its form to the dog; for the
dog secs equally by night a.nd day. Anubis seems to have the same
character among the Egyptians as Hecate has among the Gree'ks,
that is, they are at once Olympian and under-world deities. But to
some seems to be CroTIus; therefore, since Cronus produced
all things from himself, the dog took his name XUWII, from this
fact. . . To sum up the whole matter, it may be said that no
44
inaIvICtual lntel'pwter IS right, lilut that all together are 'tIght. ]'01'
ilt is 'U6t vight to say tlaat dirought or wind or sea or darkness is the
portion of Typhon, but in is injlmious and de-
:8 tructie.."
36-9 ;a 'of the double cause of
tihe wo:.rld, ;& .good ,and an evil, closing with a statement of Pla.to's
philosophy of the genesis 'Of tIre world, "to whioo .it 4s thB pur.pose
'Of this book" tQ fit' Egyptian theology .. "
371A--.372E. lift. uenerail, :()ot1r, m-oral ood phY8i61.
"For th-e genesis a.rrd oonstitutien 'of this world. are a'eveloped
from two 'opposife principles, which are not etlllal "in strength, ?ut
the better is yet it is impossihle tb d() aw"ay lltterly with
. -evil, for it is cioS'ly bound up wHh the body al1:d with the soul 01
the universe and always fights against the 'better ptinciple. There ..
fore in the soul, mind and l"eason
2M
:and tbat part that is lord of
the best instincts is Osiris; and in tIm -earth and ail' alia water and
heavens anustars that whiCh is orderly and wholesome in seasons
and motions is an efflux and image of Osi1'1s. On the oth-er hand
Typhon is that part of the soul that is passionate and titanic 811:d
unreasonable and unstable; and ot the world that which is
perishable and diseased and unstable, as in bad seasons
and eclips'Cs, is 1tS it. were the flights anddisap}Yea:rnncea of Typhon;
:and his namre Seth is significant, 01' it sometlnl'cs nlah-s vIolent aud
sometimes frequent retreat and 'again victory. Some say that Bebon
was one of Typhon's companions. but Man'etho says thi:lt Typho11
himself is called Behon ; this name signifies restraint and preven-
tion; and is used to show that Typhon stands in the way of the
right development and course of things. Therefore, they assign to
him of domestic a.nimals the stupidest" ass 'Of wild animals
the most brutal, the crocodile and. the hippopotamus .... In Rer-
mopolis they show a statu-e 01 Typhon in the form Ot a hippopota-.
mus, upon which has alighted a hawk contending with a snake; by
the hippopotAmus they indicate Typhon, and by the hawk power
and rule ; Typhon often comes into possession of this power through
violence and then does not cease from troubling both himself and
others. . . . Thus they make all bad and injurious animals and
plants and passions the works ana portion and activity oi Typhon.
"Osiris, however, they represented by an eye and a the
former setting forth his providence., the latter his power. . .
And they often used the hawk
llllf
as ::t hicroglyph. of this god; for it
211' Cf. 351 F., Osiris was tl'ue doctrine which Typhon scattered and lsis
gathered again, inviting her followers to join hel' in the search. Isl:3 was the
god of knowledge, which her veloy name showed, from diUlIaci Typhon the
gud o.f ignorance, as his name showed, at' l1rllvra),l ;cat tlnd't'7j1l
255 Of. 363 C.
256 See below p. 63.
257 See below p. 63.
45
is said that the hawk is remarkable for keenness of vision and
swiftness of flight, and needs very little food. . . . . rrhey deck
the images of Osiris with fiame-colored garments, as evidence of
their belief that the sun is a s!llsible body of the essence of good
that is perceptible only to the mind.
211l1
Therefore we. must reject
the idea that the sphere of the sun belongs to Typhon, to whom be-
longs nothing shining nor salutary, nor any orderliness nor genera-
tion, nor motion that posse'sses measure and proportion, . but all
things opposite to these; and drought, which destroys many animals
and plants, must not be set down to the account of the sun, but of
those winds and waters in the earth and air which are une.easonable
and which arise when the principle of unruly and undefined power
quenches the exhalations. And they sing of Osiris as hidden in the
. arms of the sun, and celebrate the birthdays of the eyes of Horns
when the moon and sun are in a straight line and thereby show
their belief that not only the moon but also the sun is the eye and
light of Horus. . . . The ceremony of driving a cow around the
temple at the winter solstice is called the search for Osiris, because
in the winter the goddess longs for the water of the sun. . . .
There are some who say plainly that Osiris is the sun
2G9
and is called.
Sirius by the although the prefixing of the article on the
part of the Egyptians has caused confusion about the llame; and
that Isis is the moon; therefore the horned images of her are imi-
tations of the crescent, and the dark draperies refer to the over-
shadowings of the moon when she pursues and longs for the sun.
In this view there is something plausible, but those who
make Typhon the snn do not deserrve to be listened to. However,
we must return to our own thesis."
372 E. Plutaroh's own interpretation. Meto{physical.
"N ow Isis is the female
2
,oo in nature, and receives all generation
and is therefore called by Plato
261
the nurse and all-receiver, but by
most men the many-named/
62
because under the influence of reason
she receives all forms.
2oa
And she has an inborn affection for the
first principle of all things, which is the same as the good, and she
longs for and pursue.s it.20' On the other hand she flees the evil
principle and thrusts it away, although she is space and matter for
both; however, she always inclines to the better a'nd freely offers
herself to it for the reception of its effiuxes and for the reproduc-
tion of its lik,e'llesses, in which she rejoices. For generation is an
foll.
2ne Of. above p. 38. Cf. Plato. Rep. 508D folIo
Of. Eusebius Praep. E.v. 1. 9. 1-4, Osiris the sun and Isis the moon.
260 Plato, Tim. 50 D, 51 A.
201 49A. Plutarch's metaphysical allegory is based upon the Timaeus 41:J
202 Of. Roscher, Lex. d. Gr. u. Roem. l\{yth. 11. I, p. 546, 547.
211S Idea frequent in Timaeus, but see especially 50A, D, E.
284 Cf. amat. 770B, matter longs for the principle of motion.
46
image of true being presented in matter, and that which is born is
an imitation of that which always exists.
wli
"Therefore they do not improperly recount in the myth that the
soul of Osiris is imperishable, but that Typhon often tears asunder
and hides his body, while Isis wanders about until she has found and
fitted together the parts. For that which is really existent and is
perceptible to reason and is the good is ahove destruction and
change; but the images that the sensible and bodily portion of the
universe, when it has assumed logical relations and forms and like-
nesses, moulds from this truly existent as a model are no more
abiding than seals made jn wax,- but they are seized upon hy the
spirit of disorder when it has been driven out of the upper region
and is hostile to Horus, whom Isis bore as a sensible image of the
ideal world.267 . Therefore it is pertinently said that he was indicted
by Typhon for bastardy, since he is not pure like his father, who is
reason itself unmixed and unaffected by passion and change, but is
a hybrid thing on account of his admixture of matter.lIf1l.1 He, how-
ever, triumphs, because Hermes, that is reason, testifies in his be-
half and proves that when nature has been brought into relation to
the ideal she produces the world. For the birth of A poUo from Isis
and Osiris while they were yet in Hhea's womb is an enigma that
before this world was generated and matter was perfected by reaAon,
nature was proved to be incomplete by herself
269
and brought forth
the firs,t creation imperfect. Therefore they say that that god was
born deformed on account of the da.rkness, and they call him the
elder Horus, for he was not the world., but a sort of image and
phantasm of the world that was to be.
"But this Horus is himself the defined and complete world, who
has not utterly destroyed Typhon, but has taken away his excessive
powe;r and strength. . . . They fable that Hermes took out
Typhon's muscles and used them as harp-strings, and thus teach
that reason by means of harmony made a symphonious universe out
Qr dissonant parts, and did not destroy but weakened the destructive
principle. And so it happens that this power is weakened it is true,
but exists bound up with the passionate and mutable parts of the
world, and is the creator of earthqua.lres, droughts, unseasonable
winds, hurricapes and thunder storms. And it poisons waterr and
air, and sends its influence even up to the moon, the light of which
it often disturbs and dark ens, as the Egyptians believe when they
say that at Qne time Typhon struck Horus on the eye, at another
swallowed his eye, then again gave it back to the sun; the blow on
the eye is an. enigma of the monthly waning of the moon, the blind-
205 Plato, Tim. 48E, 49A. Cf. 27 D foIl.; 37C.
~ u Ih .. 50 ID, 51 A.
2tIT lb. 50 D.
269 Cf. de au. proo. 1026 0, Horus had his spirit from his father 'his body
from his mother.
21111 Plato, Tim. 53 A.
47
ing of Horus is an enigma of the eclipse, whjch is healed by the sun
when the moon has escaped from the shadow Df the earth and again
receives the light of the sun."
373 E. Metaphysical again.
"The and diviner nature consists of three parts, the in-
telligible, matter" and that which comes from a union of two,
what the Greeks call the world. So Plato calls the intelligible
'idea' and 'pattern' and 'father'; matter he calls 'mother' and'
'nurse' and the 'place of generation'; their offspring he was ac-
customed to call 'generation.'210 One might conjecture that the
Egyptians compare the nature of the universe to the fairest of tri-
angles, as Plato in the Republic:
T1
seems to have us.ed this triangle
fDr a diagram of marriage. This triangle has its perpendicular
equal to three, its base to four, and its hypothenuse to five. The
perpendicular represents the male, the base the female, the hypoth-
enuse their . offspring ; that is, Osiris the fhst principle, Isis the
matrix, Horus the completed world. For three is the first odd
number and is perfect; four is a square that has an even number;
two,. for its side; five is in some respects like each parent, for it'is'
the sum of three and two. And the word for all ndv't"lX'is
l:t paronym of the word five nvTe, and nlJ.nd(To.m9o.e is used for to
count. Moreover the square of five gives the number of letters
in the Egyptian alphabet, and the length of Apis's
Now t.hey are accustomed to call Horus Min, which is 'seen'; for
the world is sensible and visible. And Isis sometimes goes by the
name or Muth/
73
that is, 'mother'; sometimes by Athyri,278 that is.
the 'worldly house of Horns,' in the same way that I)lato spok.e of
matter as the space that received generation ;'J.Ho sometimes by
]\iethyer, which is a compDund of two words signifying 'the full'
and 'the cause;' for matter is filled with the world and consorts
with the good and pure and orderly element."
314 C. HesiQd and Plato .
"It might perhaps seem that He siod understood these same ele-
ments when he made the first principles chaos and eart!]. and tar-.
tarus and love, if we understand by earth Isis, by love Osiris, by
tartarus Typhon; for chaos seems to be. space in the broadest sense,
that is, assumed as the abiding place of the universe. These ac-
counts call to mind the myth of Plato which Socrates relates in the.
Symposium
275
about the birth of I.Jove, when .he saic1 that Poverty
desired children and so lay down beside Plenty, to whom she hore
Love: so Love was of mixed nature since he was the off.::lpring of a
270 lb. 50 C, D. Cf. 48 E; 49 B; 51 A; 52 A, D; 27 D foIl.
271 546.
272 See Appendix I, Pluta.l'ch's treatment of number.
278 See below p. 63.
274 Cf. above .f. n. 270.
275 203 B folIo
48
good, wise and self-sufficient rather, but of an indigent
who, on account of her own lack, always looked to another. For
Plenty is none other than that which was first beloved and I fJnged
for, complete in himself; but he called matter Poverty, hecause of
herself she was in want of the good but becomes impregnated with
it and is always longing for it and partaking of it. And Horus, or
the world, that is born of these two is not immort.al, not impassible
nor incorruptible, but because he is always becoming he contrives
by means of the changes in the accidents t.hat befall him and by
various periods of existence to remain ever young
2711
and never to
approach extinction. . .
374E. "However, we are not to employ mythA as direct state-
ments of fact, but to' get from them the truth that they teach by
means of metaphors. 'Vhen therefore we utter the word 'matter,'
or material, you must not have in mind the soulless and unqualified
body designated by this term in some systems of philosophy; for we
eaU oil the 'material' of a perfume, gold of a statue/
i
' but do not
mean that these things are devoid of all quality of t.heir own. Anfl
the soul itself of man a.s the 'material' of knowledge and virtue
we can adorn and harmonize by reason; and some have designated
the mind as the place of the ideas and a ,Sort of matrix for the in-
telligible forms; and some are of the opinion that the generative
seed of the woman is not a power or principle, but 'material' and
nourishment for generation. Now, holding these uses of the vrord
in mind we ought to think in like manner of this goddess; and that
she has some share in the first god/
7s
and is ever taken up with love
of his excellencies and beauties; that she is not a principle opposite
to him but that her love is a right one like that of a law-abiding and
righteous man. or as we say that a good woman who is marri.ed yet
has desire towards her husband, so this goddess is always longing
for that first principle although she is filled with his most essential
and purest parts'. But when Typhon touches upon her extreme
parts then she appears sad of countenance and is said to grieve and
to gather up the scattered fragments of Osiris and to care'for them;
that is, matter reeeives back into itself whatever has perished and
hides it, with the int.ention of again bringing it to birth.27u Some
efliuxes of the god, such as appear in the heavens and stars, are
abiding, but others are subject to accident, such as appear in the
land, sea, plants", animals; these latter are dissolved and destroyed
and burietl, and again often come to view by means of generation.
Therefore the story says that N ephthys is the wife of Typhon, but
that Osiris went to her secretly, for the extreme part!:; of matter,
which they call N ephthys and the End, are especially under the
278 Of. Plato Tim. 83 A.
277 On perfume cf. Plato, Tim. 50 E, on gold 50 A, though the similes are
not used for, exactly the same purpose.
27S lb. 51 A.
279 lb. 49 52 A.
49
dominion of the destructive principle; but the principle of. fruitful-
ness and health gives to these parts hut a feeble seed, that is de-
stroyed by. rryphon, except what Isis gets possession of and pre-
serves and nourishes.
"In a word the son280 is that which is better, as Plato and Aristotle
suspect. And the fruitful and salutary part of nature inclines
towards him and towards heing. the destructive and injurious away
from him and towards non-being. Therefore they give Isis her
name from the roots of the words tfil9-o. and llll1 because
she is animate and intelligent motion. For the name is not foreign.,
but as all the gods have a common name, /)eol, from t,yO letters of
and -8luJV, that is, one who sees and one who runs, so both
Greeks and Egyptians call this goddess Isis from science and mo-
tion. . .' . Osiris has got his name as a compound of and
for he is the common idea of things in heaven and things in
Hades, the former of which it was the custom of the ancients to
call fepd, the latter 8(1(}... However, we should not be over-conten-
tious on the subject of names, but I am inclined to consider Osiris
of
376 A. "Similar to these Greek derivations are some Egyptian
stories and names. For they often call Isis by the name of A thena
which signifies, 'I am come from myself'; this testifies that Isis is
self-moving impulse. But Typhon, as has been is called Seth
al!d Bebon and Smy, names which mean violence and restraint and
opposition and overturning. And again they the magnet the
bone of Horus, as Manetho relates, but iron the bone of Typhon;
for just as iron is often drawn towards the magnet and again flies
off from it, so the salutary and good and reasonable motion in the
world draws to itself and by persuasion Tenders softer the power
that is stubborn and Typhon-like, but again the latter retreats and
is plunged into disorder. Eudoxus says that the Egyptians tell a
myth of Zeus that at first he could not walk because legs were
grown together, and therefore out of shame he lived in the desert.
But Isis separated his limbs and thus gave him facility in walking.
The myth is an enigma that the mind and reason of the god is in
the unseen until it comes into generation by the power of motion.
"The sistrum shows that whatever exists ought to be shaken,
fie {efi
1
9o. , and never cease from movement, but should be roused
and agitated as if it were asleep and its life quenched. For they
say that by the sistrum they drive rryphon away; by this they set
forth that destruction binds and halts, but by means of movement
250 Reading insteaJ of 6 as Bel'nardakis suggests.
2S1 Of. 351 F. Ruski'n is guilty of the same lack of logic in accepting two
etym.ologies of the same word, Queen of the Air, p. 41, ArgeiphoDltesis both
shining white, and Argos-slayer.
:z82 Plutareh recognized the absurdity of deriving really foreign words
from the Greek language. He defended his own procedure by claiming that
these were truly Greek words, among the vast number that had been carried
nbroad by the Greeks who had mo-red to other countries, de Is. 875 F.
50
generation frees nature. The upper disc of the sistrum contains
the four bodies to be shaken. For the part of the world subject to
generation and destruction is enclosed by the sphere of the moon,
and within that sphere everything is moved and transformed
throughout the range of the four elements, fire, earth, water and
air.283 Just below the apex they carve a cat with a human face and
below the rattles on one side the face of Isis, on the other the face
of N ephthys, using these faces as an enigma of birth and death
(for these are the changes and motions of the elements); by the cat
they signify the moon, on account of the variol1s colors, the night-
prowling, and the fertility of this animal. For it is said to bring
forth one kitten, then two, then three, then four. then five, then
six, then seven, so that its offspring are twenty-eight in all, the
number of the days of the moon. However, this is, perhaps, too
fabulous; but the pupils of its eyes seem to dilate at the full moon,
and to contract when the moon wanes. Rv the human face of the
cat they show forth the rational method 'Of the changes of the
moon."
376 F-382 O. Digre88ion. .'1176 F-.J78 B. Physical allegoristic.
"In a word, we are not to conceive Osiris or Isis as water or sun
or land or the heavens, nor Typhon as fire or drought or sea; but
if we assign to rryphon simply whatever in these various parts of
nature is indeterminate and disproportionate on aceount of excess
or lack, and on the other hand if we do honor to whatevcr is orderly
and good and beneficial as the work of Isis and the image and reason
of Osiris, we should not be wrong. . . . For we believe that these
gods have been set over all the portion of the good, and that all that
is fair and good in nature comes into being through. them, when the
one supplies the original seed and the other receives and nourishe8 .
it.
"This belief that these gods are the creators and directors of what-
ever is helpful to man gives us an explanation to make to those who
fit the stories about these gods to the changes of the seasons or to
the planting and cultivation of the fruits of the ea.rth, saying that
Osiris is buried when the seed is put into the earth. and that he
lives again when the plants start to grow. In the same spirit they
say that when Isis perceived that she was pregnant she hung a charm
around her neck on the sixth day of the month Phaophi; and that
the imperfect child Harpocration was brought forth at the winter
solstice; that is, the first shoots are tender and undeveloped. . . .
J.fen take delight in these physical interpretations and accept them,
because physical phenomena are so evident and usual that they ren-
der plausible any explanation that introduces them."
377 O. Warning8.
"And there is no harm in this method, if in the : f i r ~ t place its
ZSS Cf. Plato, Tim. 49 B folI., 53 A.
51
a:dvocates allow :([s: to Keep these gOGA- univenmI and GO' not r{"8irict
them to' the Egyptians, cQnfining these names to' the Nile and the'
land that is watered by the Nil-e, and so by calling them marshes QV
lotuses take away mighty divinities from the rest Qf mankind, who
have no Nile no-Jr Bute n@Jr MemJlltis. .. . . The- second danger is.
mQre serious-,. and they Qught t()l be veJlY careful that they dO' nO' k
unintentionally resQlve. divine powers intO' physieal phenomena. . .. "
the rest of this passage see- abQve pp. 37, 38 and 25:f. n. 142.
Thus it is plain that. within certain restrictiQns,. Plutarch had Da
obJection to phys-ical allegoristi;c. U is tnle' that he twice explicitly
preferred a mOl'al interp1ietatiQn. In Septem 156 C ae dQes nQt
give an allegorical interpr.e:tatioll, hut Q'bj,ects, to coofining the-
1\iuses, AphrQdite and Dionysus to the' bare direction of physical
things; they presided O'ver mQw} phenomena, and used the physical
merely as instruments. In de' and. po. 19 he' claims that fQr the
stQries of the adultery Qf Ares and Aphl"Qdite
2M
and gf the cQquetry
01" Hera
2S
:; the poet l11IDself had given the AUfiW;, Aphrooite stoQd
fQr bad m3.J1ners and bad morals, and Hera's discomfiture shQuld
seTve as a warning against the' empl.oyment of such arts. What he
prQtested against was fQrced and. Ullna,tural allegories
1'a'is- 7t'f;Ur.u I:;V UiCO'IfJ{acs- d.J) .. Y),yoptar:r; IIVII 1rapa(j/f?-
r:o/l"evlH )Ca! J/afi1'ptcpovres-.-_u
284 Of. Heraclftus, AlIeg. HOom. c. 69, thiS" is' 1In. aHegory of Empedoclean
COSnlQgony. And O'ornutus, j9, 11)2, Ares equals iron and the soft'"
ening force O'f fire; it was called adultery because the warlike and violent is
not naturally fitted to' the beneficial and pteasing.
Cf. Heraclitus Alleg. Hom. c. 39.
286 De mId. po. 19 E foll. The words vnovoea and a).),:I)rOp{a are interest-
fng; but the former always had a much wider application than the lat-
ter; fO'r example, in de Is. 363 D U1CtJIIOW is nO't an allegory. This- passage
TIas been updn to prO've that PlutarcIl: rejected rfuysica.l allegorical intel"-
pretation, and was opposed to' Stoic methods. Wyttenbacll, XI p. 161. Wyt-
tenbachi makes a reference to' Longinlls de- sub1. 9, as saying that only by
gOl'ty can Homer be vindicated from tlie charge of impiety. But in 9, 8,
Lo-nginu1 uses Plutarch's methO'd of tmning frO'm an 'evil passage to a good',
cf. above p. 28 f. n. 163. So it is probable that the two writers were notmucli
at variance upon this point. Cf. on PIutarch's attitude towards ph.ysical alle-
.gorlstic P. Dec.ha,rme, Un. fragm. d. Daed. de PInt., Melanges Henri Weil, 114.
Westerwick, de PInt. Stud. .. 54. VO'lkmann I. lW. SchIemm 36, 38; ther
latter page 'On passage. Oakesmitb XVII-XX., Plutarch an eclectic,
rather than a Pla.tonist, and received much from the StoicS' and Epicurea'ns.
'Vesterwick, pp. 54-56, says of Pluta.rch that he S'ometimeg admits phYlSicaJ
interpretatiO'ris and sO'metimes rejects them, giving de Is. 377 D, E- as a proof
that he sometimes rejected them. But this is no more reje'Ction of th'e phiysi-.
cal than the passage frO'm aml:!,t. 757 B, quO'ted ab'Ove p. 37 is of the
cal aIleg'Oristic. It is here, as t.here, a warning. Hil'zeJ, Del' Dialog. n. 218,
probably has this passage in mind when he says that Pluta.rob here (de Is.)
diS<!ards the physical interl)retation of the Stoics. On the ground that Plu-
tarch did not admit this StO'ic inteI1Jretation HirzeI does not allow the physi-
cal expla.n8Jtions in the fragment of the Daedala in Plataea to be Plutarch's own ;
the work must have been a dialogue, and the parts preserved the wO'rJs ()if a
StO'ic interlocutor. T'he same view O'f the foogm.ent is held by Decharme,
p. 111-116. But Decharme says that Plutarc'h repudiated physical allegory
and took nothing from the StO'ics. 'We have seen that this is not the case.
Therefore it does not seem impossible that these w'Ords in the daed. in Plat.
wel'e a part of the treatment Qf the subject in which Plutarch wished to show
52
iJ78A. "For our guide in the interpretation or reHgious tradition
we must use our reason after it has been trained by fhc sbldy of
. "Ve can gather from the Egyptians themselves
that all things should be referred to rlitsnn. For wben they hold
iR feast in non-or of Hermcs they :eat ;an.d the fig, and say.,
'Sweet is truth/ The amulet that Isis wore is interpreteel 'true
speech.' Harpocrates is n<>t to be considered and in:
fan t god, nor the god pulse'" but the guardlan lllild dIrector 01
man's childish and impedect .and disjointed concepti9n o[ the
therefore h has his finger .on his mouth as a .symbol ot reE\traint
.and silence; amI when they bring pulse as a sacrifice to this god
they say, 'The tongue is ro:rturre, the t<mgu is a divinity .. ' Of all
the plants in Egypt they that the pcrsea is most sacred to the
goddess, because its seed is like a beart, its leaf like a tongue. For
none of man's possessions is more divin-e than s.peech, -especially
speech about the gods, nol' has greater weight in the scale of hap ...
piness." i
For the next two chapters on mournful rites, and the explanation
that they are for the disappearance of fruits and plants, and 0n the
danger in faiHng to grasp the exact 8fense in which W0ird.S used
see above p. 35 idl.
379 E-3S2 A.Animal worship.
"The explanation. of the worship or certain anImals hecauf:;'e the
gods through fear of Typhon.had :ftd into those animals is utterly
preposterous. Equally incredible is the hypothsis that these ani-
mals alone receive such souis as sutrer metempsychosis. There are
three tp.eori-es of a political origin of the custom. According to one
theory Osiris had divided his great army into many divisions and
had appointed for each division a standard in the form of some ani ..
lual, and animal was held sacred by the members 'Of the tribe
or division. According to ano:ther, later kings had exhibited goJ.d
and silver animal heads in iront of the army to frighten t.he enemy.
The third the-ory is that one of the terribl e and wicked kings 0 b-
served that the Egyptians were prone to revolution, and so long as
t4ey were united were irresistible by reason of their numbers.
Therefore he sowed among them an undying superstition of such a
form as to be a cause of perpetual contention. Fur he ordered some
cities to honor and worship certain animals, and other cities to
worship other animals, choosing such animals as made war on each
other, and of which some were the natural food of others; now the
people defended their own sacred animals and were angry when
they were hurt, and thus .were unconsciously drawn into the hostili-
ties of the animals and fought with ea eh other. . .
that physical allegory might be present. The safeguards and Warnings and
delimita'uions are lacking, but the language of the seventh paragraph is n.ot
unlike that of the physical explanation of the Isis myth, 363 D, 364 A.
Doubtless Hirzel and Decharme would leave the second to Plutarch,
for there a moral expl'anation is given, see below p. 57.
53
3800. "By the explanation commonly given, that the soul of
Typhon himself has fled into these animals, the myth would seem
to be an enigma that every irrational and brutal nature belongs to
the dominion of the evil demon, and that they worship thel'e ani-
mals in the hope of mollifying him; and if he comes upon them
with excessive droughts or deadly sicknesses or other disasters, the
priests take some o-f the sacred animals away under cover of dark-
ness and silence and threaten and frighten them; then if the mis-
fortune continues they kill the animal as a sort of punishment of
the demon or purification in time of great trouble. .'.
380F. "There are still two causes of the worship of animals,
their usefulness
287
and their one cause operates in some
cases, the other in others, while in many both are present. . . .
The asp and weasel and beetle have in them certain images of divine
power, just as the sun is reflected in drops of water. The method of
reproduction of the weasel is thought to be a likeness of the birth
of the reasoning f.aculty; the beetle has no female, but the males
deposit the generative seed in round pellets of earth which they
thrust backwards as they move, just as the sun, passing fronr sun-
set to sunrise, seems to turn the heavens in the opposite direct.ion;
the asp is like a star in never growing old and in' swift motion with-
out any organs of motion. Nor has the crocodile honor without
plausible reason, but is called an image of god, for it alone is tongue-
less. For divine thought has no need of a voice, and 'moving along
a silent path guides human affairs with justice.' Besides, they say
that this is the only water animal with a transparent membrane
coming down from its forehead over its eyes, so that it sees. wHhout
being seen, something that belongs to the' first 'god. . . . It lays
sixty eggs,' they take sixty days to hatch, and it lives sixty years at
most, now this is the number first used in measurements of the
movements of the heavenly bodies. . rfhe ibis makes an
equilateral triangle with her legs and bill; and the mixture of black
and white feathers pictures the gibbousness of the moon. We must
not be surprised that the EgyptiaIls delighted in slight resem-
blances; for the Greeks, too, in their pictures and statues of the
gods, made use of many such images. For instance, in Crete there
was a statue of Zeus without ears; for it is becoming that the ruler
and lord of all things should listen to no one.
2SO
And Phidias placed
a snake beside the statue of Athena and a tortoise beside the statue
of Aphrodite
2VO
in Elis to show that maidens need a guard and that
287 Of. Cic. N. D. I. 36, 101.
288 Of. Apis as the image of the soul of Osiris, 359 B, 362 D, 368. C. On
Egyptian worship of animals see Wellman Aegyp. in Bermes, 31, p. 226 f-oll.,
especially 234, 235. Part hey 261.
2811 Cf. de Is. 355 A, images of judges without hands; that is, justice could
not be bribed. The chief judge with eyes closed; nor could justice be seduced
by addless. .
2UO In conj. praec. 142 D, mention of same statue with same interpreta-
tion. See de an. proc. 1030 n, musical instruments in the hands of the statues
of the gO'ds show that harmony and order bel-ong to divinity.
54
homekeeping and silence are becoming to wives. The trident of
Poseidon is a flymbol of the third place. which the sea holds after
the heavens and the air; for the same reason Amphitrite and the
Tritons received those names. The Pythagoreans called numbers
and geometrical forms by the names of the gods thus making use
of symbolism. . . .
382 A. "If, therefore, the most noted philosophers did not see
fit to neglect or disregard an enigma of the divine when they ob-
served it even in soulless and bodiless things, still more do I think
we ought to rejoice to see divine traits in natures that have
tion and life and feeling and moral character, not doiug honor to
these animals themselves but through them to the divine; looking
upon them as clearer mirrors and as immediate creations of nature,
instruments as it were or skillful devices of the god that orders all
things. . . . Therefore it is not worse to find an image of the
divine in living cre,atures than in works of bronze and stone. . . .
My last expla:uations of the worship of animals I approve more than
the others."
3,8Je O-E. Metaphys'ical again.
"The sacred vestments of Isis are many-colored, for she is the
principle of matter that produces and receives all things, light
and darkness, day and night, fire and water, life and death, begin-
ning and end .. But the garment of Osiris has no shadow nor variety
of color but is simple, like light; for the original principle and the
intelligible is unmixed. Therefore they put these garments on but
once and then keep them but they use the vestments of J sis
often, for what is perceptible to the senses is in use and is subject
to sight. and touch and to changes sometimes into one form and
sometimes into another; while the knowledge of the intelligible,
which is pure and simple, lights up the soul but once as by a flash
of lightning."2Dl
The contrast between the same and the other is allegorically
taught not ouly for ultimate philosophical elements of thought, but
also for cosmogonical development. The worship of both Apollo
and Dionysus at Delphi shows the two periods in the existence of
the world. Apollo stands for the ecpyrosis, when the world is re-
dllced to the pure element of fire, one (Apollo) and bright (Phoe-
bus). Dionysus the parti-colored world as we know it;
and the stories of. symbolize the division of the
201 Cf. 352 B, C, the dress of the dead priests of Isis a symbol of true
reason. 352 D-F, priests smooth shaven to show purity and simplicity; for
the same reason woolen garments avoided, they are made of the hair of beasts
and 'hair is an excrescence. Linen garments were worn by the priests: the
true cause of all these customs is one, for Plato [Phaedo 67 Bl says that it is
. not right to touch what is pure with the impure. This dress' had physical
symboHsm also; flax is the product of the immortal earth, and the producer
of an edible fruit. And it had another reason, it was useful, for it was suita-
ble to all seasons and was especially healthful. Thus many causes may operate
to produce a single ('ul!ltom.
55
one element into many elements an.d tonns. of oodies. The rite'!
in his honor represent. a world full of passim!), and change. r'phose
in Apollo's honor a:re quiet and orderly. The statues of Apollo
are of a man always young,. those of Dionysus appear in many forms.
The length of time that the paean is sung to A p0l16 is longer than
that in which the dithyramb is sung to Dionysus, to' show that th6t
two period5! are
OBi'1'is lO'1"d of H ade8.
, "The priests of the present day darkly and cautiously hint th'ai
this god rules over the dead and is identical with the Greek Hades
and Pluto. This idea is misunderstood, and it caUSei: the untrained
multitude much uneasiness to think that the sacred and holy Osiris
really lives under the earth, where the bodies of the dead are laid
away. But he is himself far removed from the earth and is un-
touched by any substance that is subject to decay and death. In
this ,life the souls of men, hemmed in by hodies and })y passions"
have no community with god, except as it were to touch upon an
obscure dream with a consciousness trained by philosophy. But
when souls have been released and pass into a state where they are
invisible and pure and untouched by passion, this god is their
leader and king; there they depend upon him and without satiety
gaze upon and long for that beauty that cannot be described to
men; it is this beauty that the ancient story showed 18is always
loving and pursuing and dwelling with, so that she fills all things
that share in generation with the beautiful and the good. Now
these are the explanations most hefitting the gods."2GB
With these characteristic words Plutarch closes his alleg-orical
interpretation of the Isis myth. -
He elsewhere gives a more rationalistic and less mystical interpre-
tation of the stories of the after life. After death there is nothing
left of the body to receive punishment, but those that have led an
e'Vil life have one retribution, xal lJ.rf,loca xat 7t'af,lTeAWS- (upaIJ!0'p.6S', 8s
(,}PWIJ els TOll ap.e!ar; 7r:tJTap.OIJ a1t'U Tf/S' ktJI91)S' XaTa1rOIJTl'! eZS' l1.{1uO'O'(W "at axaIJeS'
1t'aaroS', aXP1)O'Tlall xat a1t'pa!;{aIJ xa'1t'iiO'aIJ lJ.rIJO!aIJ xal O'uvecpeAX(Ip.IJOIJ.
2Df
There are some other scatter
'
ec1 allegorical interpretations, as,
Marsyas was punished because he contended by wordless music
against words and melody, and it is words that appeal to reason.
2U50
Forgetfulness and the ferule are consecrated to Dionysus to show
2112 De E. 388 F-389 0, where Plutal'cb claims to be giviDlg the teachings
of the theologians both in. verse and in prose.
208 Observ.e "Platonic color."
294 De lat. vivo 1130 D, E. Of. non posse 1105 B, Cerberps and h->rribIe
punishments in Hades are only old wives' tales. Of. 1093 A, B.
Sym. 713 C, D.
56
tbat at friendly Ieasts 'el'rors shoula be forgoUen or lightly l"e-.
third race was ,said to be descended from ash trees
I()n account of its robustness.
297
'rhat the priestesses of Hera and of
Dionysus did not greet each other aJId that ivy was not allowed in
the precinct of Hera were not admitted by Plutarch to be the result
'Of mythical and ll'Onsensical jcalousies. But these religious re-
strictions showed that the ma.rl'iage goddess and c'ould
have nothing in C'OlllID'On, as Plato'll98 says. Also the cerem.onies 'Of
the worship 'Of H:er.a taught that husband and wife should be gentle
t'O each othel'.200 0111.1 was not in sacrifice to Hera, goddess of
marriage, to show tha.t no bad temper should 'Occur between mall
and Th!(!) wineless sacrifices were to teach sobriety."ul
knew, they say," that th'e shadow of the earth was poinJed,;.:f:Ol'
he called too night In Od. 1, .. 563 he meant that the end
and boundqy of the! earth was where the shadow ceased.
803
The
poets that night was boro or the earth; the natural
philosophel"s demonstrated that night was the snadow of the earth.
801
In the st'Ory ()[ Hel.'a 'ana Lato the two one thing.
For Hera was the earth, and Let'O the night, and the night is noth-
ing but the shadow of the earth.:IOs The quarrel or Zeus and Hera
was a disturbance of the elements; if Zeus, the principl-e 'Of heat,
eaused the dissension a drought came upon the earth; if Hera, the-
wet and windy force, a flood.- Some philosophers said in jest that
Hephaestos was '(JaUed lame becauS'e fire did not burn without flll)
nor could a lam-e ma;n walk without a stick.
s07
:M:any answers to the
Roman questions give symbolic explanations: 1, 2" ID, 11, 12, l3.
25, 26, 29,72, 76, 97, 101" 102, 10'9, 110
p
111, 112.
c:80 612
COlD.. in Hes., 1, 'on Bes. O. D. 143-
:291 Laws 775 C.
Fr. de daed. Plat.2.
'800 C0nj. praec. 141 F; observe the Words alv/T'to{LellotJ 'rtJu
The same :explanation uf this custt>ln i)) fr. de daed. Plato Sec. 2.
301 De Is. 353 B. Of. 354 A. the refrained. from swine as a Sign or
luxury; 353 D, E" sea fis.h for the same l"euson, and als() because of the cor-
I'Upt natUl'e of the sea; 352 F, they a'\toid pulse, mutton, pork, becaUSe thel'
l>roduce fat, and the priests abhor excess; salt, because it Whets the appetite:
A, they do not allow Api's to drink of the Nile on the ground that it is
'fattening, and wish t()preserve in themselves and in Apis the di'\tine
spirit not down by the mortal part; 353 F, onions a.voided because
they grow i'n the dark of the moon, also bt'cause they produce thirst and make
the eyes water; Of. Aulus 20, 8, for the same idea, quoted horn Plut.
corn. in Hes. Bk. IV.
802 De fac. lUll,. 923 B.
808 lb. 942 F.
lOA De prim. frig. 953 A. ' I
805 Fr. de daed. PInt. H.
100 lb. 7.
107 De fac. lun. 922 B. Cf. Heraclitus Alleg. Hoon. C. 26.
5'1
APPENDIX I.-NUMBERS.
Immediately after the examples of Greek symbolism in statues,
Plutarch went on to say that the Pythagoreans called numbers and
geome1trical forms by the names of the gods.
80S
I t can be iIl!ferred
from this juxtaposition that he considered this nomenclature as
symbolical merely. In this same essay the right-angled triangle of
sides equal to three, four and five is used, with explicit reference
to Plato/OIl as a symbol of Osiris, father or spirit.; Isis, the material
or matrix; Horus, the sensible world. How good a symbol of
the world five is, he proved by the fact that 7rall'ra is a paro-
nym of 7rellTe and to count is called! 7rep:1r:a,;a,;Oat.
310
The symbolical
use of geometrical figures appeared again when he said that
Xenocrates . made the equilateral triangle suggestive (a7t'eexa,;as-)
of the divine nature, the scalene of the mortal, the isosceles of the
demonic. This is stamped with Plutarch's approval by the addi-
t.ion of the characteristic idea that nature has put forth sensible
images and visible likeneses of the gods; the sun, etc.;\l\ .
In these passages Plutarch evidently uses numbers and figures
as symbols and it is at least probable that they never had for him
any mystic power. It. is true that he studied mathematics assidu-
ously, as we learn both from his own words
llll
a.nd from the long
discussions in de E. c. '1-16, de def. or. e. 22-2'1, and de an. proc. c.
10-20. 29-32, but at the close of each discussion there is a hint to
guide us in our judgment of his real attitude. After arguing for
the interpretation of the consecrated E as the number five/
llI
he
concludes, "As I remember it, this was the conclusion of the arith-
metical and mathematical encomiums of the E." The word encomi-
ums would perhaps suggest that he was none too serious in putting
forward the claims of five. A stronger argument against the :five
808 De Is. 381 F.
30\1 Rep. 546. On this passage in the Rep. -see Zeller 11. 857. f. n. 1.
810 De Is. 373 F ~ 3 7 4 A. Of. de E. 388 0. For 7rellTe as 7t'aYT'a de
def. or. 429 D. For 7t'ep.7t'a,;am9ae de def. or. 429 D. and de E,. 387 F.
811 De def. or. 416 D. Of. what bas been said above p. 33 foIl., 38 of t'he
correspondence between the spiritual and physical realms.
112 De E. 387 F. In de Is. he often gives explanations of the days upon
which certain rites are performed by a reference to astronomy, especially by a
reference to the phases and movements of the moon. The myth itself might
be a representation of the eclipses, 368 D.
813 Ferd. Schultz, Die Sprueche der Delp. Saeule, Philolog1t8 24, p. 214,
denies that the E can represent five, for the ancients used 7t' for five.
59
may be drawn :from the reply o:f Ammonius, that he would not dis-
courage young men from mathematical pursuits, but that every
number had much that could be praised for those who wi.sh to
praise it. Then he gave the true meaning of the JiJ; it was Et, thou
art, addressed to the divinity hy the approaching worshipper. 'fhe
interpretation as five received no more consideration ut the close
than any of the other suggestions, namely, that it was dedicated
to. the Pythian god because it is the second vowel, and the sun, over
which Apollo presides, is the second planet; or it is the El of ques-
tions and wishes; or the el of the Stoic form of the syllogism.
At the end of chapter 37 of de def. or. after a long discussion of
the number of worlds, in which much was again made of five, the
c.onclusion is that one could not be positive in such a matter. So,
too, near the close. of the mathematical discussions in de an. proc.
he disclaimed any desire to go into such matters with great partic-
ularity, .1028 1\. and in the last chapter of this treatise he explicitly
refused . to sanction the Pythagorean doctrine that all things are
like number, and explains definitely how he has been using nunibers
and figures and musical intervals, and how he understands Plato
to use them in the Timaeus in his account of the creation of the
world. "The demiurgus found the soul ID disorder, and reduced
it to harmony; the office of the proportions and numbers that the
demiurgus used was but the harmony of the soul and its concord
with itself; again, the soul used this harmony to rule terrestrial
affairs." Even here" we see that numbers ar.e only symbolicae
u
. Ufo Of. Zeller Ill. 173, Indessen grieifen auch diese Betracbtungen rot
numbers] in seiner Weltansicbt nicht tiefer ein, daer doch immer am Iiebsten
einfacb auf die Wirlrung der Gottheit zurUckgeht, welche die Materie geordnet
und g e s ~ l t e t babe.
60
APPENDIX II.-THE ISIS 1vIYTR.
Os iris, Isis, and Typhon were the children of Rhea. To Osiris
and Isis was born Horns, like themselves orderly and beneficent.
Osiris first ruled over the Egyptians and taught them the arts of
civilized life, and gave them laws and the worship of the gods.
Later, he went to all the countries of the 'earth, and induoed many
men to give up their savage life, and softened their harsh natures
by eloquence and song and the finer arts. While he was gone
Typhon was unable to raise a :revolt against him, so well did Isis
watch over the kingdom. But on his return he was overcome by
stratagem.' Typhon made a beautiful box to fit exactly the body of
Gsh-is; which he had secre.tly measured, and invited Osiris and the
conspirators to a feast. rrhere he said jestingly that. the box should
belong to him whom it fitted. All tried it, and when Osiris had lain
down in it the others rushed upon him and fastened the lid down
with nails and molten lead. Then the box was thrown into the Nile,
and so was washed out into the sea. Isis wandered long and sought
the body of Osiris. At last she found it, and hid it in a marsh.
'fyphon was hunting there, and came upon the body. He tore it
asunder and scattered 'the parts. Again Isis went out to search for
the body, and to give burial to the scattered parts as she found
them. Later, when Horus had been trained by Osiris, who came
from Hades for that purpose, he conquered Typ40n, and handed
him over. bound, to his mother. However, she did not destroy him,
but let him gO.31& Many details ha.ve been omitted. .
Compare M. Wellman, Aegyptisches, Hermes 31, 221 foIl., for
translation of the myth and comment. According to Wellman., the
myth as given by Plutarch was probably composed by Manetho, for
the purpose of uniting the Egyptia:p. and Greek religions. Parthey
ed. 'de Is. p. i (cf. p. 81) refers to' Bunsen's suspicion (Aeg. I. p. H5,
96), that Manetho was Plutarch's chief source, but adds that, how-
ever. that may be, Plutarch looked at. everything Egyptjan in the
light of his own time. But, p. 251, Plutarch composed what he has
hansmitted to. us out of various myths, as shown by his calling
Osiris the sun in one p l ~ c e , . while in another he called him the off-
spring of the sun. Cf. p. X., Nebelha.fte Verwirrung und schHlernc1el'
Wechsel der Gestalten das wahre Element aIler Mythologie sei, etc.
81D De Is. 355 D foil.
61
P. 252, on the explanation of three Egyptian names, "Plu-
tarch often used very good sources." Lafaye, Les divinites d' Alex.
hors de l'Egypte, 5-23, syncretism of Greek and Egyptian religions
from Herodotus to Plutarch. Pp. 5 and 19, m'Onotheistic tenden-
cies of Egyptian religion; see particularly 12, Il etait impossible
que la croyance au monotheisme et a l'immortalite de l'ame, qui :"e
cachait au fond de la theologie egyptienne, ne seduisit pas en Grece
tous les esprits distingues que lassait le fardeau a la fois pesant et
vide du polytheisme. P. 70, C'etait la philosophic qui avait preside
it la fusion des mystercs grecs et egyptiens; des le jour ou les
Ptolemes, et avec eux une legion d'ecrivains, s'et.aient appliques a
l'etude des traditions sacrees de la race vaincue, ils avaient tache
d'en saisir le fil et l'esprit; de nom.breux systemes a.vaient He pro-
poses. Plutarque les passe en revue et les resume; mais il voudrait
aussi arriver a une synthese, dire le dernier mot. view of
J..Jafaye is given in some fullness as a probable conjecture of . what
happened; on account of the loss of the writers preceding Plutarch
it is impossible to determine what he owed to others and especially
to whom he owed any particular explanation. Compare Gruppe,
I, 439. But these explanations must not be considered as pure
Hellenil:!ms foisted upon a simple Egyptian myth; the monotheistic
tendency of Egyptian theology has already been noted, and that is,
of course, an unliteral interpretation of the popular stories and
rites. Erman, Life in Ancient Egypt (trans. by Tirard) 344. foIl.,
in the New Empire and even in the' Middle hidden mean-
ings were read into religious hymns-though none of those that
Erman gives are allegorical. Sayce, Herod. App. 1. 343, "Set or
Typhon, primarily thel night, into whose character and attributes
a moral meaning was gradually read, so that in the time of the New
Empire he became the representative of evil, the enemy of the
bright powers of light and goodness, the prince of the powers of
darkness." It is impossible to give a scientific account of Egyptian
religion at the time of the Pt01emies, for the documents have not
been collected and sifted.
BIG
With respect to Plutarch's attempts to explain hieToglyphics and
Egyptian names it may be said in general, that it is not improbable
that even the most figurative explanations were made to Plutarch.
or to his sources, by the- Egyptian priests themselves; also certain
usages may have been temporary and local. When Plutarch, de Is.
354 F, says. that !lieroglYP?ics axe symbolic, he is partly right; they
are both phonetIc and plCtographic, but not exactly symbolic in
:r:lut.arch's His statement, 362 D, that Egyptian names are
sIgnificant IS as true of that language as it would be of Greek; that
ala Professor Breasted of the University of Chicago allows me to gIve him
as my authority for this statement. (Cf. EI-man 259, and 264, f. n. 3.) He
kindly gave me the information in the next paragraphs also, on hieroglyphics
and etymologies.
62
is, the etymology of some names can be made out. 'This was the
view of Egyptian priests.
HIEROGLYPHICS.
354 F, cf. 37'1 E, eye and scepter the' hieroglyphs of Osiris: eye
and throne, not scepter; not with the figurative meanings given by
Plutarch, though doubtless the priests were responsible for these
explanations.
363 F, fish the hieroglyph for hate : it was used as symbol of hate-
ful things.
365 B, a leaf (of the fig?) the hieroglyph of king and of the south;
not a leaf, but a plant was used for the southern land, and later for
the king of southern Egypt.
37'1 E, hawk hieroglyph .of Osiris: hawk a symbol of a god, Edfu;
found as far back as First Dynasty. Symbolism not known.
EGYPTIA.N ETYMOLOGIES.
354 D, Amun is what is concealed: a similar root does mean to
conceal.
355 A, Osiris is the many-eyed: right. Of. Parthey, 1.86
359 B, }Iemphis is the haven of good things: it does mean gooEl
rest.
365 E, ivy was called chenosiris, tree of Osiris: right. Cf. V.
Loret, La Flore Pharaonique p. 69.
365 F, Osiris means strong: a pun, strong equals ws r, Osiris
equals ws yr.
368 B, Omphis means benefactor: probably right.
374 B, Muth (name of Isis), mother: right.
37'4 B, Athyri (name of Isis), house of Horus: right, for Athyri
is Hathor, the g9ddess of heaven, and Horus is the sun, which
dwells in the heavens.
The following authors Pluta:rch quotes on Egyptian religion or
subjects connected with religious rites or beliefs. Of some only
fragments are extant; of others. nothing remains. See \Vyttcn-
bach in his notes on the passages, and Ohrist under the va.rious
names, though neither comments upon all these writers.
Aristagoras, de Is. 352 F.
Hecataeus, 353 B; of Abdera 354 D. Fragments in Mueller F. H.
G 11. 384-396.
Eudoxus, in the second book of the 'TC"p{o(Jor; 353 C; 359 0;
363 A; 37'2 E; 37'6 0; 377 A See Christ 570. who says that the
fragments are collected by Brandes, U eher d. Zeital ter d. Astron.
Geminos u. d. Geog. Eudoxos in J ahns Arch. 13 Bd. (1847) S. 199-
230.
63
1\fanetho, the Sebennite 354 D; the Sebennite, 362 A; 371 C;
376 B; 380 D Mueller}' H G 11. 511-616.
Archemachus of Euboea, 361 F.
Heraclides Ponticus, 361 F. ]\fueller F. H. G. 11. 197-207.
Timotheus the exegete, 362 A.
Phylarchus, 362 B. Wyttenbach gives the Ms. reading Philarchus
and supposes that Plutarch meant Q different person from the
Phylarchus he quotes elsewhere.
Dinon, 363 C.
Castor, 363 C. Fragments are collected by lfueller in the Didot
edition of p. 153 foIl.
Hellanicus, 364 D.
Ariston who wrote about Athenian colonies quotes Alexarchus,
365 E. Fragments of one Ariston Mueller F H GIll. 324 .. 5.
Hermaeus, in the first letter on the Egyptians 365 F.; 368 B.
Mnaseas, 365 F.
Anticlides, 365 F.
64
- -- - -I ~ - : )
BL
7Sb"
i l-t [j'7
Ct 0 \.J, ?->

18 September 1915
Anne Bates Hersman (ne Anne Woodson Bates), the daughter of Richard Bates (St. Louis,
Missouri, 12 December 1835 25 September 1879, St. Louis, Missouri) and Ellen Wilson Woodson
(St. Charles County, Missouri, 24 November 1842 26 August 1933, St. Louis, Missouri) was born,
on 30 November 1866, in St. Louis, Missouri. She was the granddaughter of Edward Bates
(Belmont plantation, Goochland County, Virginia, 4 September 1793 25 March 1869, St. Louis,
Missouri) who had served as attorney-general in the cabinet of Abraham Lincoln. After earning her
baccalaureate degree at Missouri State University in 1887, she taught Latin, also at Missouri State
University, in the academic year 1888-89. On 6 September 1894, she married Charles Finley
Hersman, M. D. who was born, in Fulton, Missouri, on 16 May 1864 and who, in St. Louis, was the
clinical professor of medicine and the demonstrator of anatomy at the Missouri Medical College of
St. Louis.
1
The marriage was not long. Charles Finley Hersman, as the victim of nephritis, died in
St. Louis on 11 October 1895. Before the end of that same year, Anne Bates Hersman, as a widow,
enrolled as a graduate student at the University of Chicago where she would become the student of
Paul Shorey (Davenport, Iowa, 3 August 1857 24 April 1934, Chicago, Illinois); and, in the
academic year 1897-98, she was listed at the University of Chicago as a fellow in Greek. In 1898-99,
she was furnishing instruction, in Illinois, at Rockford College. In 1900, she began teaching Latin,
in Chicago, at Hyde Park High School. During the academic year 1901-02, she was a student in
residence, in Athens, at the American School of Classical Studies. While continuing to teach at
Hyde Park High School, Anne Bates Hersman, on the basis of her Studies in Greek Allegorical
Interpretation, was awarded her doctorate at the University of Chicago on 19 March 1907. In 1917,
she withdrew from Hyde Park High School and from Chicago; and she returned to St. Louis where
she supported herself by the practice of law and, while doing so, she published articles in the St.
Louis Law Review [Washington University] and in the American Law Review [St. Louis]. Anne
Bates Hersman, by her own hand, perished at home in St. Louis on 6 May 1948.
1. Charles Finley Hersman, an alumnus of Westminster College (1884) in Fulton, Missouri, was the
son of Charles Campbell Hersman (near Lexington, Kentucky, 16 June 1838 7 June 1924,
Richmond, Virginia), the Henry Young Professor of Biblical Literature and New Testament
Interpretation at Union Theological Seminary (Richmond, Virginia), and Abigail Abbie
Machette (St. Charles, Missouri, 30 December 1839 6 September 1921, Richmond, Virginia). As
the student of William Augustus Hardaway (Mobile, Alabama, 8 January 1850 3 February 1923,
St. Louis, Missouri), he earned his doctorate in medicine, at the Missouri Medical College of St.
Louis, in 1888. A specialist in cancers of the skin, his most notable publication was
Lymphangioma in the third volume, pages 508 516, of what Prince Albert Morrow (Mount
Vernon, Kentucky, 19 December 1846 17 March 1913, New York, New York) edited and
published as A System of Genito-Urinary Diseases, Syphilology, and Dermatology (D. Appleton: New
York, 1893-94), 3 vols. His marriage to Anne Woodson Bates was announced in The Medical
Standard 16.4 (October 1894), p. 126.
2. Anna Bates Hersman, Right of Public Service Corporations to Serve Themselves, St. Louis Law
Review 4 (1919), pp. 147 150; Anne Bates Hersman, Intervention in Federal Courts, The
American Law Review 61 (1927), pp. 1 38 and 161 193.

University of Chicago, Cobb Lecture Hall, ca. 1910

Chicago, Hyde Park High School, ca. 1909

The Nation 106.2754 (11 April 1918)
ST. LOUIS
LAW REVIEW
Published Quarterly During the University Year by the
Undergraduates of Washington University School of Law.
BOARD OF TRUSTEES
CHAiLEs NAGE. JoN F. LI
EDW AD C. ELior WA=rT D. Cou.&
RICHAaD L. GOODE Fmtwcm N. Juoso.
JA Es A. Sumoox FRL NKN PauIss
THEODORE RASSIZUR P. TAYLoz BRYAN
EDITOR
P. F. PLUMMER
BUSINESS MANGER
WESLEY A. LUEDERS
ASSOCIATE EDITORS
J. H. ZUMNALEN TyRzELL WiLuAms
NOTES
RIGHT OF PUBLIC SERVICE CORPORATIONS TO
SERVE THEMSELVES
The right of public service corporations to serve themselves is one
branch of the question: Under what circumstances and to what extent
should corporations be allowed to engage in activities outside the scope
of the main business that they were created to carry on? The decision
of this question depends upon a consideration of the interests of three
classes of persons: First, the stockholders. Their interests do not
fall within the purview of this discussion. Second, and more impor-
tant than the first class, that part of the public that makes use of the
services of the public utility. For instance, in the railroad-coal cases,
the independent shippers of coal; or in the grain warehouse case, the
independent owners of grain wishing to warehouse their grain. Third,
and most important, the public as consumers of the article in question.
HeinOnline -- 4 St. Louis L. Rev. 147 1919
St. Louis Law Review 4 (1919)
ST. LOUIS LAW REVIEW
The lengthy argument and array of statistics produced in the trial of
the cases to prove the existence or danger of monopoly and conse-
quent fixing of prices, are directed to the protection of this vast con-
suming public.
There has been a good deal of legislation, on the part of the
States, to prevent this kind of monopoly, either in the form of con-
stitutional or statutory prohibitions of ultra iires activities, or by
directly forbidding railroad companies to engage in mining, manu-
facturing, etc. These efforts have generally been abortive. They
have had to face a legal situation, for many railroads had charters
enabling them to hold and operate mines, and many owned large tracts
of land given by the government. These efforts were also in conflict
with a more powerful economic principle, the need to develop the.
resources of the country. In a countr
"
richer in natural resources
than in capital or labor it seemed expedient to legislators, and doubt-
less to the consuming public itself, to foster rapid development rather
than to shackle production by safeguards against monopoly. To illus-
trate this conflict and to explain the embarrassment of Congress when
it was drafting the Commodities Clause, and of the courts in inter-
preting it, I shall quote from several State statutes. Pennsylvania,
"It shall and may be lawful for railroad and canal companies to aid
corporations authorized by law to develop the coal, iron, lumber and
other material interests of this commonwealth by the purchase of their
capital stock and bonds, or either of them, or by the guaranty of or
agreement to purchase the principal and interest, or either, of such
bonds," except in Schuylkill County. Washington, "It shall be law-
ful for any railway within the State or which may own, lease or oper-
ate in diI future any such line or lines of railway within this State, to
take, acquire, own, negotiate, sell and guarantee bonds and stocks of
companies or corporations which are or may hereafter be organized
for the purpose of irrigating and reclaiming arid lands contiguous
or tributary to such line or lines oi railway." Also, the railway may
itself build and own and operate irrigation ditches. Therefore, when
the Constitution of Pennsylvania, effective January, 1874, forbade a
railroad to engage in mining or manufacturing articles for transporta-
tion of its lines, or to engage, directly or indirectly, in any other busi-
ness than that of common carrier, naturally the courts of Pennsylva-
nia construed this clause as applying only to future conditions, and,
even so interpreted, did not rigidy enforce it; especially since there
was no provision prohibiting control through stock ownership or sub-
sidiary companies. Also, naturally, the Interstate Commerce Coin-
HeinOnline -- 4 St. Louis L. Rev. 148 1919
NOTES
mission recognized the railways involved as "possessing the com-
mingled attributes of carrier and producer."'
In the midst of this general situation two. pieces of legislation
against a public service corporation's serving itself have been en-
forced in the courts, with the result, probably, of a mere legal change,
but no material economic alterations. The clause of the Illinois Con-
stitution that declares grain warehouses of a certain description "pub-
lic" is held to forbid the warehouse corporation, or stockholders, to
mingle their grain with the grain of the patrons.
2
This is the only
case in which the decision is based upon common law principles. The
court held that the word "public" in this clause of the Constitution
imposed upon the corporation and the individual stockholders the duty
of acting in the interest of the whole public and of their patrons; of
refraining from assuming any position that would expose them to the
temptation of unfair dealing and manipulation of the market. It was
claimed that the relation of a public service corporation to the public
was similar to that of a trustee, and all the cases cited were trustee
cases, except one that treated of the duty of an administrator; thus
making use of the common law, not in the narrow sense, but in the
broad sense, as including equity. Common law principles are referred
to at length in many decisions, but such references are mere dicta,
as the decisions are based upon the statute in question. For exam-
ple, in New Haveh R. v. Inter. Com. Coni.,
"
before the passage of the
Commodities Clause, the court said: "'\Ve shall not direct our atten-
tion to expressly determining whether the assertion by a carrier of
a right to deal in the products which it transports would not be so
repugnant to the general duty resting on the carrier as to cause the
exertion of the power to deal in the products which it transports to
be unlawful, irrespective of statutory rsetrictions"; but the decision
is based on the federal statute forbidding rate discrimination. Very
similar to the language used in the Illinois case are dicta in State v.
Stand. Oil Co.," and other cases arising under various anti-monopoly
statutes. Compare summary of corporate actions condemned by the
courts in H. 0. Taylor's Private Corporations, under the headings
Ultra I'ires and Monopoly, especially sections 306, 307, 309, fifth edi-
tion. So in Atty.-Gen'l v. The Gt. N. R. Co.,- the Vice-Chancellor
1. D. L. & W. v. Haddock, 3 I. C. R. 302 (1890); Leh. V. R. R. v. Coxe.
3 1. C. R. 460 (1891).
2. Hannah v. The People, 198 I11. 77 (1902).
3. 200 U. S. 361 (1905).
4. 49 Ohio St. 137.
5. 29 Law Journal (N. S. Equity) 794.
HeinOnline -- 4 St. Louis L. Rev. 149 1919
ST. LOUIS LAW REVIEW
said: "'It is greatly against public interest that railways become mer-
chants of the commodities they haul: the danger of monopoly is great."
But he decided the case on the ground that dealing in coal was 0Itra
tires, saying, -The law is in the act of parliament creating the joint-
stock company." This case settled the matter for England. As her
legislators and judges were not hampered by the legal and economic
situation shown above in existence here, the question was the simple
one of ultra s'ires.
The other piece of legislation is the Commodities Clause of the
Hepburn Act. a revision of the Interstate Commerce Act made by
Congress in 1906. By this clause interstate railroads are forbidden
to transport commodities (other than lumber) owned or produced
by themselves, except such as are for their own use. The word "pro-
duced" has been practically eliminated by judicial interpretation. Also,
it is held that railroads have not been foridden to own, by their stock-
holders individually or in their corporate capacity, some or all of the
stock in corporations manufacturing or marketing their commodites.'
The latter point is supported by the discussion of the bill before its
passage; for in the Senate, where the clause originated, amendments
were rejected that forbade the transportation of commodities pro-
duced or owned by a corporation in which the railroad owned stock.
In his dissenting opinion, Mr. Justice Harlan said that the statute
meant to forbid a railroad's holding stock in manufacturing, etc.,
companies. "'Any other view of the act will enable the transporting
railroad company, by one device or another, to defeat altogether the
purpose which Congress had in view, which was to divorce, in a real,
substantial sense, production and transportation, and thereby to pre-
vent the transporting company from doing injustice to other owners
of coal." We may compare what the Chesapeake and Ohio actually
did in West Virginia after the passage of the State statute forbidding
a railroad company to buy and sell coal: it bought in the name of an-
other.- This case against the Delaware and Hudson R. R., together
with cases against several other roads, was brought in a Federal cir-
cuit court. There the Commodities Clause was declared unconstitu-
tional. It was carried to the Supreme Court, where the clause was
held constitutional with the above interpretation, and all the cases
sent back to the fircuit Court. Next we have the case of U. S. v.
Lehigh Valley R. R. Co.,' decided in Federal District Court for de-
6. See U. S. v. Del. 8- H. R. Co., 213 U. S. 366 (May 3, 1909).
7. See New Haven R. v. Inter. Com. Com., 200 U. S. 361 (1905), referred
to above.
8. 220 U. S. 257 (1910).
HeinOnline -- 4 St. Louis L. Rev. 150 1919
NOTES
fendant. On appeal to Supreme Court, it was held that a railroad is
forbidden to do by indirection what it may not do directly. Case re-
manded to be tried on the facts as to whether the railroad company
was using the Lehigh Valley Coal Company as its tool to monopolize
the coal of a certain area, and to control prices both in the coal district
and at the seaboard. It was tried before the District Court and de-
cided for the defendant.
At last we have a conviction under the clause, U. S. v. Del., Lack.
& W. R.' The court aiserts as governing principle, "The Commodity
Clause of the Hepburn Act was intended to prevent railroads from
occupying the dual and inconsistent positions of public carrier and
private shipper." Decided, that the contract between this railroad
and a coal company of the same name, organized by the railroad com-
pany after the passage of the Commodity Clause, is void because it
violates the Commodity Clause, since the coal company is really made
the agent of the railroad company, and because it violates the Sherman
Anti-Trust Act, since it is in restraint of trade. Also in Del., Lack.
& W. R. v. U. S.,10 it was held unlawful for a railroad to transport
hay to feed the animals used in its coal mines, for 759 of the output
of the coal mines was for sale; hence the hay was not for the railroad
in its business as a carrier.
There is an interesting monograph, published in 1916, on "The
Commodities Clause," by Thomas L. Kibler, professor of economics,
A. & M. College, Texas. I have drawn largely upon its facts, but
differ radically from its conclusions: it condemns monopolies. I should
foster them and regulate them to cheapen commodities for the public.
Also, Professor Kibler, as it seems to me, does not recognize the force
of the difficulties and complications arising from our legal and eco-
nomic situation as suggested at the beginning of this article.
MRS. ANNA BATES HERS.MAX.
9. 238 U. S. 516 (June 21, 1915).
10. 231 U. S. 363 (1913).
HeinOnline -- 4 St. Louis L. Rev. 151 1919
THE
AMERICAN LAW REVIEW
JANUARY-FEBRUARY, 1927.
INTERVENTION IN FEDERAL COURTS.
I. DEFINITIONS AND HISTORICAL SKETCH.
Sec. 1. Definitions. "In practice. A proceeding in a
suit or action by which a third person is permitted by the
court to make himself a party, either joining the plaintiff
in claiming what is sought by the complaint, or uniting with
the defendant in resisting the claims of the plaintiff, or
demanding something adversely to both of them."' "A
method of practice by which one having an interest or right,
which will be affected by existing litigation to which he has
not been made a party, may, if he desire, by leave of court,
come into that litigation to protect such interest or right."2
In the second definition the intervener is not called a party,
and indeed he is not universally treated as a party. For ex-
ample, in a petition for an examination pro interesse suo,
or in a claim before a master in a receivership suit, or in an
ancillary suit. And there are some rights of a party that
an intervener, except under some peculiar condition, does
not have; for example, the right to challenge the jurisdic-
tion of the court over the original suit. These matters will
be dealt with more in detail when cases are discussed.
However, hard and fast definitions and consistent use of
terms are not to be expected; such exactitude, if found any-
'Roeca vs. Thompson, 223 U. S. 317, 331, quoted from Blacks' Law
Dictionary.
'Adler vs. Seaman (C. C. A. 8), 266 Fed. 828, 832.
(1)'
VOL. LXI.
HeinOnline -- 61 Am. L. Rev. 1 1927
The American Law Review 61 (January - February 1927)
(61) AMERICAN LAW REVIEW
where, is not found in a practical and adaptable art such
as the law.
3
It thus appears that intervention is, or brings
about, a change of parties, but only in particular ways. It
does not for instance, include substitution, or vouching, or
interpleader; though, naturally, in some phases it ap-
proaches each of those proceedings.
Sec. 2. Historical sketch. Intervention was and is com-
mon in the civil law; it suited the practical Roman genius.
It was allowed in English admiralty, ecclesiastical and
chancery law; this recognition was a natural result of their
historical development and of the character of their pro-
cedure and remedies. These three branches of English
practice were greatly influenced by the civil law, or de-
rived from it. In admiralty intervention is often a neces-
sity if there is to be a trial; when a ship is libeled there
must be a claimant of the ship or of the proceeds to oppose
the libelant. Many equity doctrines favored the admis-
sion of an outsider; to avoid a multiplicity of suits, to do
complete justice once jurisdiction has been assumed, to
avoid doing an injury to anyone. On the other hand, the
theory of an action at common law is hostile to intervention.
The action is a duel. Interference by outsiders is illogical
and impertinent. However, during the nineteenth and
twentieth centuries both in England and in America the
basic idea and the forms of actions at law have taken long
strides towards equity ideas and forms. Under statutes
and court rules and judicial procedure strictness of form
has yielded to the claims of utility, celerity and justice. A
procedure exactly in point is that prescribed in the modern
statutes that require or allow a claimant of attached prop-
erty to intervene in the original suit.
'In the words of Judge Learned Hand, "I do not conceive that the law
has ever laid down any such absolute rule on this subject [patents], or any
other absolutes for that matter * . . In this subject the standard escapes
any abstract definition, because the end in view needs nicer adaptations, as
in the cases of due care or notice. The defect of such a standard is indeed
its uncertainty, but certainty is only one of the ends of law." Van Heusen
Products vs. Earl & Wilson (1924), 300 Fed. 922, 929.
HeinOnline -- 61 Am. L. Rev. 2 1927
INTERVENTION IN FEDERAL COURTS
This attitude towards procedure has brought about a
great increase in the use of intervention in chancery. Ap-
parently the earliest form was a motion for an examination
pro interesse suo on the part of a claimant to property in
custodia legis by a sequestrator or receiver. This form, in
substance, is still common before a referee or master or re-
ceiver, or before the court where no more is sought than
recognition of a claim on a fund. Two other forms have
developed from this early one; one is the active participa-
tion of the intervener in the conduct of the suit; the other
is an ancillary or dependent suit. The three forms are all
common in federal practice. In England under the Judi-
cature Acts and rules made pursuant thereto by the Su-
preme Court, the trial court has discretion at any stage of
the proceedings to add parties "whose presence before the
Court may be necessary in order to enable the Court ef-
fectually and completely to adjudicate upon and settle all
the questions involved in the cause or matter. "4 This is
not an arbitrary discretion, for an appellate court may
overrule a denial,
5
or sustain an admission." Similar
rights of appeal exist in our federal courts. We too have
rules permitting intervention. Admiralty Rule 347 was
adopted under an Act of Congress passed in 1842. Of
course, before the adoption of that rule intervention was
"very familiar in practice," as Story said.
8
Equity Rule
(federal) 379 was adopted in 1912. This also is but declara-
tory of familiar practice, except that the requirement of
subordination is more drastic than appears in actual prac-
tice either before or after the adoption of the rule.
In addition to these general grounds for the modern de-
'Ord. XVI, rule 11. Tomlinson Is Notes on the Judicature Acts and Rules
(1883), p. 160.
'Byrne vs. Brown (1889), 58 L. J. Q. B. 410, 22 Q. B. 657.
1 Montgomery vs. Foy, Morgan & Co. (1895), 65 L. J. Q. B. 18, 2 Q. B. 321.
'Dewhurst's Rules of Practice in the United States Courts, 2nd ed. (1914),
p. 665 et seq., 267 Fed. XV.
' Stratton vs. Jarvis (1834), 8 Pet. 4, 9. See also The Boston (1832), Fed.
Cas. No. 1, 669.
'Foster, Federal Practice, 6th ed. (1920), Vol. 2, Ch. 17, sec. 258, 198 Fed.
XXVIII.
HeinOnline -- 61 Am. L. Rev. 3 1927
(61) AMERICAN LAW REVIEW
velopment of intervention there are grounds peculiar to
the situation of the federal courts. Their jurisdiction is
limited; therefore a third party might be unable to bring
himself within the limits of jurisdiction so as to start an
independent suit to protect his interests threatened by the
original suit. The cases are full of comments on this
ground of allowing the intervention.
10
The second pecu-
liarity fostering intervention is the relation of federal and
state courts. It is better to admit an interested person in-
to the federal suit than to risk an unseemly conflict between
the two courts, or even an awkward multiplicity of decisions
rendered by courts of different jurisdictions."
11. ]KINDS.
Sec. 3. There are several ways in which a -third person
interested in a suit may present his case to the court:
(1.) He may petition the court for leave to intervene, in
the strict sense, and may thus become a party, or quasi
party. If he comes in to affect vitally the conduct of the
main suit, he is (semble) properly entitled a party. If he
makes a claim within the proceedings as directed by the
original parties, he is (semble) a quasi party. His aim and
desires and the court's view of his rights or interests will
determine the scope of his activities. Sometimes the in-
tervener is even substituted for one of the original parties.
2
(2.) He may have a cause of action so connected with
the main suit that it is advisable or necessary to enforce it
in the court of the main suit. And yet it may be necessary
or more convenient that his cause of action should not be
enforced in the main suit. He may be allowed to file an
ancillary or dependent bill. The connection between the
two suits may be of no importance in their actual trial. The
parties in one are not parties in the other. One should not
'
0
For example, Minn. Co. vs. St. Paul Co. (1864), 2 Wall. 609, 633.
" Julian vs. Central Tr. Co. (1904), 193 U. S. 93, 113.
"Phelps' vs. Oaks (1885), 117 U. S. 236, 240-1; Hardenbergh vs. Ray
(1894), 151 U. S. 112, 118-9.
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INTERVENTION IN FEDERAL COURTS
be allowed to delay the other. The common situation is
this, a federal court has assumed jurisdiction of the cause,
often of a res, so that no other court may give relief. But
the limitations of federal jurisdiction prevent the ancillary
plaintiff from bringing an independent suit in that court.
13
(3.) A claim on a fund in the possession of the court may
be made by petition or motion or presentation before the
court or a master or a referee, according to the orders of
the court and the state of the proceedings.
(4, 5 and 6.) Motion, suggestion, and appearance as
amicus curiae. Sometimes a third party may desire to get
his views before the court without subjecting himself to the
jurisdictions thereof; or the court may not allow him to
intervene, in the full sense, either because his interest does
not justify it or because he has not taken the proper steps
to entitle himself to such privilege. He then resorts to
one of these less active forms of interference, or the court
reduces his action to such a plane.
14
The term "sugges-
tion" seems to be used especially of an address to the court
by a public official.'
5
The term "special appearance" has
been used to designate such intervention.'
(7.) In the progress of a suit, and particularly in the
carrying out of the final decree, third persons become inter-
ested and liable to the court's jurisdiction. "It, however,
seems to be well settled, that after a decree adjudicating
certain rights between the parties to a suit, other persons
having no previous interest in the litigation may become
connected with the case, in the course of the subsequent
proceedings, in such manner as to subject them to the juris-
diction of the court, and render them liable to its orders;
"Julian vs. Central Tr. Co. (1904), 193 U. S. 93, 113. And the quotation
therefrom page below.
" M Atamney vs. Commonwealth Hotel etc., Corp. (1924), 296 F. 500, 503,
motion; The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 22, amious; N. Y. vs.
U. S. (1922), 257 U. S. 591, rate case in which 45 states appeared by an at-
torney as amicus; Auditore C. Co. vs. Coal on barge Mary M'Allister (1924),
295 F. 694, 695, amicus.
"The Exchange (1812), 7 Cranch 116, 147; Kelknap vs. Schild (1895), 161
U. S. 10, 12-3.
10Primos Chem. Co. vs. Fulton Steel Corp. (1918), 255 F. 427.
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and that they may in like manner acquire rights in regard
to the subject-matter of the litigation, which the court is
bound to protect. Sureties, signing appeal bonds, stay
bonds, delivery bonds, and receipters under writs of attach-.
ment, become quasi parties to the proceedings, and subject
themselves to the jurisdiction of the court so that summary
judgments may be rendered on their bonds or recog-
nizances. So in the case of a creditor's bill, or other suit,
by which a fund is to be distributed to parties, some of
whom are not before the court; these are at liberty to come
before the master after the decree, and establish their
claims to share in the distribution.
"A purchaser or bidder at a master's sale in chancery
subjects himself quoad hoc to the jurisdiction of the court,
and can be compelled to perform his agreement specifically.
It would seem that he must acquire a corresponding right
to appear and claim, at the hands of the court, such relief as
the rules of equity proceedings entitlee him to. ,117, It is al-
most elementary that anyone upon whom a judgment or de-
cree directly, immediately, and necessarily operates may
appeal from it so far as it affects himself."'
8
And one who
claims under a decree, whether a party or not, may make
an application at the foot of the decree, or file a dependent
suit, against one who assails the decree, though the latter
is an entire stranger to the suit.
19
Sec. 4. One of the chief sources of the law of intervention
in the federal courts is Krippendorf vs. Hyde, 110 U. S.
276, especially 285 to the end. At page 287 Justice Mat-
thews suggests many forms of intervention in these words:
"The form of the proceeding, indeed, must be de-
termined by the circumstances of the case. If the
17
Blossom vs. Railroad (1863), 1 Wall. 655, 656. Accord, Minn. Co. vs. St.
Paul Co. (1864), 2 Wall. 609, 634; Hincklcy vs. Gilman etc. R. (1876), 94
U. S. 467; Kneeland vs. Am. Loan Co. (1890), 136 U. S. 89, 93 et seq. and
citations.
The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 21.
Phipps vs. Chicago, R. I. & P. Ry. (1922 C. C. A. 8), 284 F. 945, 955, and
citations.
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INTERVENTION IN FEDERAL COURTS
original cause, in which the process has issued or the
property or fund is held, is in equity, the intervention
will be by petition pro interesse suo, or by a more
formal, but dependent bill in equity, if necessary.
Relief, either in a suit in equity, or an action at law,
may properly be given, in some cases, in a summary
way, by motion merely, supported by affidavits. In
actions at law, where goods have been taken in execu-
tion after judgment, or upon attachment before, a pro-
ceeding in the nature of an interpleader might be ap-
propriately ordered by the court, such as was given in
the English practice to the officer by the statute of
1 and 2 Will. 4, c. 58; 2 Lush's Pr. by Dixon, 777; and
in that the respective rights of the claimants to the
property could generally be tried as in an action at
-law by a jury, upon a formal issue framed for that pur-
pose, or with the consent of the parties by the court;
or, if the claim was such as that it could be determined
only upon principles of equity, as administered in
courts of that general jurisdiction, it would be proper
to provide relief upon a bill of that nature, filed for
that purpose. If the statutes of the state contained
provisions regulating trials of the right of property in
such cases, it might be most convenient to make them
a part of the practice of the court, as contemplated by
sections 914, 915, 916 of the Revised Statutes. In what-
ever form, however, the remedy is administered,
whether according to a procedure in equity or at law,
the rights of the parties will be preserved and protected
against judicial error, and the final decree or judgment
will be reviewable, by appeal or writ of error, accord-
ing to the nature of the case."
20
With all the liberality of these promises of aid, this third
person is not assured that if he mistakes the door by which
he should enter the pending cause he will be led by the court
into the right path. His is the common lot of litigants.
But, as in other fields, he sometimes finds his mistake cor-
rected, or his rights heard in some way. For example, in
" See also Compton vs. Jesup (1895 C. C. A. 6), 68 F. 263, 279, and cita-
tions. Taft, J.; Equitable Tr. Co. vs. Portwentworth Term. Corp., 281 F.
883, 884.
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a suit by A against B, on the petition of B and C, an entire
stranger, the trial court allowed C to be joined as defend-
ant without A's consent, and to file a crossbill. The appel-
late court held with emphasis and fulness of argument that
C could not thus be made a defendant, but accepted his
crossbill as a petition to intervene pro interesse suo merely
to make claim on a fund.
2 1
Again, it has been held that per-
sons who call themselves interveners in their briefs but who
did not appear in the trial court may not raise questions
that are not in the record; but as to issues there found they
will be treated as amici curiae.
22
And it is not seldom held
that a bill independent in form should be treated as de-
pendent, or as an intervention
pro interesse suo.
23
Sec. 5. Form is sometimes of decisive effect on the suc-
cess of the intervention. If a foreign sovereign wishes to
claim immunity from suit in our courts the manner of the
presentation of the question is important; doubtless of
more importance from a diplomatic point of view than from
any other; but since federal courts have to decide whether
the question has been properly raised, it is of interest in a
study of intervention. If a vessel is libeled (to take a
familiar instance) and a claim is made that it is immune be-
cause it is owned or used by a foreign sovereign, the claim
may come before the court in three ways. First, the ambas-
sador or minister of the foreign sovereign may lay the
matter before the Executive Department; if that depart-
ment recognizes the claim, the Attorney General of the
United States will set forth the claim with an appropriate
suggestion to the trial court. Of course, such suggestion
is received and followed. Secondly, the foreign sovereign
or his ambassador or minister may intervene as a party, by
right; then the court will try the question. Thirdly, the
claim may come as a suggestion merely, from some one
"
1
Gregory vs. Pike (1895 C. C. A. 1), 67 F. 837, 846.
1Veitia vs. Fortuna Estates (1917. C. C. A. 1), 240 F. 256, 262.
23 Krippendorf vs. Myde (1884), 110 U. S. 276, 285; Minot vs. Mastin (1899
C. C. A. 8), 95 F. 734, 739; Continental Tr. Co. vs. Toledo, St. L. & K. C. R.
(1897), 82 F. 642, 645, Taft, J.
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INTERVENTION IN FEDERAL COURTS
calling himself a representative of the sovereign and ap-
pearing as amicus curiae merely. This suggestion the
court may, or perhaps should, disregard entirely.
2 4
Sometimes a third person could bring an independent or
dependent suit to protect his interests, but he may not inter-
vene as a party in a pending suit. For example, in a re-
ceivership suit to defeat the receivership and to accuse the
receiver of fraud and collusion, and the court of erroneous
judgment.
2 5
On the other hand the Supreme Court sug-
gests that the proper way to attack the jurisdiction is by an
intervention as a party or by a bill of review.
26
To present
complicated claims in an action at law the proper procedure
is a dependent bill.
27
A creditor may not intervene as a
party when the court has ordered all claims tobe presented
to the
master.
28
See. 6. A mere change of form cannot enlarge rights.
A taxpayer was held without sufficient interest in the pay-
ment of collected funds to intervene in a suit to enforce
payment. He could not thereafter bring an ancillary suit
to enjoin enforcement of the judgment.
29
Sec. 7. The cases are not agreed on how much subordina-
tion, if any, is required of the intervener in his attitude to-
wards the main suit, as will appear later in the discussion
of the status of the intervener. It may be noted here that
it has been held that the subordination of a dependent bill
is less than that required of an intervening party in the
main suit.
80
Sec. 8. It seems unnecessary to discuss statutory inter-
vention. The statute itself is the measure of the right.
Chief Justice Taft, then Judge Taft, gave the essential
reason for nonstatutory intervention, in Compton vs. Jesup
2Ex parte Muir (1921), 254 U. S. 522, 532-3; The Pesaro (1921), 255 U. S.
216, 218-9; Kunglig Jarnv. etc. vs. Dexter etc. (1924), 300 F. 891, 893.
2 Forbes vs. Memphis etc. R. (1872), Fed. Cas. No. 4, 926.
11 Carey vs. Houston & T. C. Ry. (1896), 161 U. S. 115.
27 Gravenberg vs. Laws (1900 C. C. A. 1), 100 F. 1, 6.
Acme White Lead etc. vs. Rep. Motor Truck Co. (1922), 285 F. 88.
I M'Donald vs. Seligman (1897), 81 F. 753, 759.
"n Equitable Tr. Co. vs. Portwentworth Term. Corp. (1922), 281 F. 883, 884.
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(61) AMERICAN LAW REVIEW
(1895 C. C. A. 6), 68 F. 263, at page 279, "Again, every
court has inherent equitable power to prevent its own pro-
cess from working injustice to any one, and may entertain
a petition by the aggrieved person, either in the form of a
simple motion, or by intervention pro interesse suo in the
cause in which the process issued, or by ancillary or de-
pendent bill in equity, and may afford such relief as right
and justice require. The existence of such a power, inde-
pendent of statutory jurisdiction, is recognized by the Su-
preme Court in Freeman vs. Howe, 24 How. 450." He cites
many other cases. This is unassailable ground, but it is
only general doctrine; the application is a different matter.
It is not always easy to decide whether the given circum-
stances justify intervention. The generic character of the
main suit, the specific issues raised, the turn the proceed-
ings have taken, the relation of the would-be intervener to
these conditions and the dependence of his interests there-
on, all demand attention. Several questions meet the stu-
dent at the threshold of the investigation. Are interven-
tions allowed in actions at law? Are they allowed when
there is no res in custodia legis? What effect has the di-
verse citizenship limitation on the right to intervene?
I. ACTIONS AT LAW.
Sec. 9. In the federal courts intervention is now, by and
large, as legitimate in actions at law as in suits in equity.
Not so common, of course, from the nature of the procedure
and the nature of the remedies of the two branches of the
administration of justice. The Supreme Court has re-
peatedly approved intervention in actions at law. There
may be a strict intervention; for example, in an action of
ejectment, when the intervener may become the chief de-
fendant.A
1
An indemnitor may intervene to defend a suit
against his indemnitee and may take charge of the de-
'Phelps vs. Oaks (1886), 117 U. S. 236, 240-241; Hardenbergh vs. Ray
(1894), 151 U. S. 112, 118-9.
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INTERVENTION IN FEDERAL COURTS
fense.1
2
Or there may be a dependent bill; for example,
when the court has attached property by mesne or final pro-
cess. It is said in Freman vs. Howe (1860), 24 How. 450,
at page 456, "It is true in a proceeding in rem, any person
claiming an interest in the property paramount to that of
the libelant may intervene by way of defense for the pro-
tection of his interest; but the same is equally true in the
case of a proceeding by attachment in a court of common
law." The form of the intervention (page 460) should be
an ancillary bill on the equity side of the court. Krippen-
dorf vs. Hyde (1884), 110 U. S. 276, quoted from at length
above (Kinds, Sec. 4, page ,) is taken up with reassert-
ing and enlarging upon this doctrine of the Freeman case,
from which it quotes with approval. Justice Matthews,
who wrote the opinion in Krippendorf vs. Hyde, reiterated
and reinforced that opinion by his decision in Gumbel vs.
Pitkin (1888), 124 U. S. 131, 143-6.31 Also when an action
at law is pending a defendant with equitable defenses may
file an ancillary bill to enjoin the prosecution of that action
and to pray that all questions be determined in the suit in
equityA
4
In spite, however, of these clear decisions and convincing
arguments, there are some conflicts in the decisions. It
would seem that the common law judge has a foot. In an
action at law, following the spirit of all these great cases,
the court suggested that a cestui que trust of the defend-
ant should intervene; the proceeding was called equitable
and ancillary and was treated as a dependent bill3
5
On the
other hand, it has been held that one may not intervene in
an action at law to enforce an equitable claim. In Graven-
berg vs. Laws (1900 C. C. A. 1), 100 F. 1, 6, it is held that
the trial court properly dismissed the petitions of interven-
82 Cohen vs. Md. Cas. Co. of Baltimore (1925), 4 F. (2d) 564, 566-8.
"Followed in Eichel vs. U. S. Fidelity etc Co. (1917), 245 U. S. 102; same
case below 219 F. 803; Boltz vs. Eagon (1888), 34 F. 452. Compare Barrett
vs. Commercial Credit Co. (1924 C. A. D. C.), 296 F. 996, a statutory lienor
may intervene in a replevin suit.
Eiehel vs. U. S. Fid. etc. Co. (1917), 245 U. S. 102.
"McDermott vs. Hayes (1912 C. C. A. 1), 197 F. 129, 131, 135-6.
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(61) AMERICAN LAW REVIEW
tion because the claim was equitable. But there were
abundant reasons for the dismissal besides this one. The
rights of petitioners would not be concluded by this action,
and the determination of their complicated claims would
not be convenient in this action. The court suggests that
the proper procedure is a dependent bill on the equity side
of the court, following Krippendorf vs. Hyde (above page
11). In Clarke vs. Eureka County Bank (1902), 116 F.
534, 537, the court says, "It is proper to add that the peti-
tioners seek to set up equitable rights in an action at law,
which cannot be done in this court. This principle is too
well settled to require citation of authorities." But the
court had already held that the petitioners to intervene did
not show by their petition that they had "such an interest
in the matter in litigation that they would either gain or
lose by the direct legal operation and effect of the judgment
which might be rendered in the suit between the original
parties." And they were allowed to amend their plead-
ings. But the converse is never asserted. It is every-
where held that legal claims may be set up in equitable
suits. This is in accordance with general rules of equity
jurisprudence. A court of equity having taken jurisdiction
will keep the case to do complete justice, and will give legal
as well as equitable remedies; for example, money damages.
Some courts have gone farther, and have denied any
right of intervention in an action at law. "* * * there is
no right of intervention in a case at common law, and that a
court of law has no adequate machinery for the entertain-
ment and distribution of funds among the various bene-
ficiaries entitled thereto. I The writer of that opinion
supported his doctrine upon McKemy vs. Supreme Lodge
A.O.U.W. (1910 C. C. A. 6), 180 F. 961, 965, which held,
"We know of no principle which permits parties interested
in a fund sought to be recovered in a suit at law to inter-
vene in such suit for their own protection."
3 7
"U. S. vs. Wells (1913), 203 F. 146, 148.
"Followed in Ill. Surety Co. vs. U. S. (1915 C. C. A. 7), 226 F. 665, 669;
U. S. vs. Fidelity & G. Co. (C. C. A. 6), 247 F. 16, 20.
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INTERVENTION IN FEDERAL COURTS
IL NO RES IN CUSTODIA LEGIS.
Sec. 10. The historical, the typical, the common back-
ground for an intervention is the possession by the court
of a res on which the would-be intervener wishes to make
claim. However, if a third person has a vital interest in
the outcome of a suit without such possession of a res there
are the same grounds of justice and convenience for allow-
ing his intervention; and if he would be otherwise remedi-
less, he has a right to intervene. So the federal courts have
permitted intervention in rate, through route and car dis-
tribution suits ;38 if, however, the petitioner is already suffi-
ciently represented and protected by the parties to the suit
his petition may be denied.3
9
In suits on contracts, where
the petitioners held interests under the contracts.
40
Boun-
dary suits.
41
By public officials to protect public inter-
ests.
42
In an ejectment suit against a tenant the landlord
may intervene.
43
An indemnitor may intervene to defend
a suit against his indemnitee.
44
In a patent infringement
suit against a user the maker may intervene.
45
And see
below topic 4, Interest, sec. 13, pp. 15-18. Creditors in the
dissolution of a partnership.
46
The statement in Coleman
IAkron, C. & Y. Ry. vs. U. S. (1923), 261 U. S. 184, 188; Wichita R. &
L. Co. vs. Pub. Ut. Com. (1922), 260 U. S. 47, 52; N. Y. vs. U. S. (1922),
257 U. S. 591; U. S. vs. Am. Ry. Exp. Co. (1924), 265 U. S. 425; U. S. vs.
New River Co. (1924), 265 U. S. 533.
City of N. Y. vs. N. Y. Teleph. Co. (1923), 261 U. S. 312, 316.
0 The Coca Cola Bot. Co. vs. The Coca Cola Co. (1920), 269 F. 796, 815;
A. R. Young Const. Co. vs. Rd. Imp. Dist. No. 2 (1924 C. C. A. 8), 297 F. 127,
128 and 138; Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 283 F. 681;
Cal. Co-op. Canneries vs. U. S. (1924 App. D. C.), 299 F. 908, 913.
"Fla. vs. Ga. (1854), 17 How 478, 493-4; Okla. vs. Tex. (1920), 252 U. S.
372.
" Veitia vs. Fortuna Estates (1917 C. C. A. 1), 240 F. 256, 263; Percy
Summer Club vs. Astle (1901), 110 F. 486, 491; Fla. vs. Ga., f. n. 4 above;
N. Y. vs. N. J. (1921), 256 U. S. 296, 303-4.
"Phelps vs. Oaks (1886), 117 U. S. 236, 240-1; Hardenbergh vs. Ray (1894),
151 U. S. 112, 118-9.
"Cohen vs. Md. Cas. Co. of Baltimore (1923), 4 F. (2d) 564, 566-8.
4Wenborne-Karpen Dryer Co. vs. Dort Motor Car Co. (1924), 300 F. 404,
406. In Leaver vs. K. & L. Box & Lumber Co. (1925), 6 F. (2d) 666, the
maker was not allowed to intervene to file a crossbill raising new and essen-
tially different legal questions. The decision follows recognized principles;
but dicta limiting in general the right and scope of intervention do not repre-
sent usual practice.
"Lackner vs. M'Kechney (1918 C. C. A. 7), 252 F 403, 407-8.
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vs. Martin (1868), Fed. Cas. No. 2, 985, that intervention in
a suit in personam is not allowed unless the petitioner is
necessary to the enforcement of the original claim is not
supported by the cases; nor is the statement in a recent
case that no intervention is allowable without claim upon a
res in the hands
of the court.
47
I. JURISDICTION.
Sec. 11. Diversity of citizenship. When jurisdiction is
assumed because of diversity of citizenship, it is not de-
feated by the intervention of a party whose original joinder
would have prevented the necessary diversity.
4
This
general statement is sometimes limited by excepting the
cases where the would-be intervener is an indispensable
party.
49
The limitation is doubtless correct, but rather use-
less. For if the petitioner to intervene is indispensable,
the court would dismiss the suit unless he is joined; or if he
is joined as an original party, there would be no jurisdiction
on account of diversity of citizenship, and hence the court
would decline to consider the bill. Therefore, there would
be no suit whether he was joined or not, and whether he
petitioned to intervene or not. However, there is claimed
to be an important and practical limitation on the general
doctrine that an intervener cannot oust jurisdiction. In
Newton vs. Gage (1907), 155 Fed. 598, it is held that one
who could not have been an original party may intervene
only if he has a claim on a fund in the hands of the court
or if he shares an interest already represented. The court
relied chiefly upon Shields vs. Barrow, 58 U. S. 130, and at
"Pure Oil Co. vs. Standard Oil Co. (1924), 2 F. (2d) 260.
4"Hoffman vs. McClelland (1924), 264 U. S. 552, 558, and citations there
given; Supreme Tribe of Ben-Hur vs. Cauble (1921), 255 U. S. 356, 363
et seq.; Elder vs. Western Mining Co. (C. C. A. 8) (1922), 280 Fed. 569, 578;
Lackner vs. McKechney (1918 C. C. A. 7), 252 Fed. 403, 408; Hardenbergh
vs. Ray (1894), 151 U. S. 112, 118; Phelps vs. Oak (1886), 117 U. S. 236,
240; Krippendorf vs. Hyde (1884), 110 U. S. 276, 285 et seq.; Pac. T. & T.
Co. vs. Star Pub. Co. (1924), 2 F. (2d) 151, 154, wealth of citations.
"1 Wichita R. & L. Co. vs. Pub. Util. Comm. (1922), 260 U. S. 48, 54; Hawes
vs. First Nat. Bank (1915 C. C. A. 8), 229 Fed. 51, 58; Baltimore Bldg. &
L. Ass'n. vs. Alderson (1898 C. C. A. 4), 90 F. 142, 144-146.
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INTERVENTION IN FEDERAL COURTS
pages 599-607, carefully distinguished that case from other
cases, both in the Supreme Court and in the lower federal
courts, in which the general rule was followed and stated.
On page 605, the court said, "The foregoing review of com-
plainant's citations removes any apparent lack of harmony
between them and Shields vs. Barrow, and, accepting all of
said cases as authoritative here, the conclusion necessarily
results that a new party cannot be brought into a suit,
whose presence at its commencement would have defeated
federal jurisdiction, unless such party represents an inter-
est already before the court, or claims an interest in prop-
erty of which the court holds possession."5 It is difficult
to understand the court's adoption of this conclusion in the
light of its own quotation from Phelps vs. Oaks. Probably
the conclusion should be viewed as in plain conflict with
other cases and with the general trend of modern ideas
towards liberality in admitting all who are interested in the
suit. The opinions in the cases cited under topic 2, No res
in custodia legis, see. 10, show clearly this trend.
Sec. 12. Amount. Many of the cases cited above under
diversity of citizenship put amount as also not a necessary
consideration in intervention."' But an intervener is
treated as an original party when a decree in his favor has
been made and his antagonist appeals to the Supreme
Court; the appeal is dismissed as to all appellees, both
original and intervening, whose judgments fall below the re-
quired
amount.
5 2
IV. INTEREST.
Sec. 13. "No one, even in equity, is entitled to be made
or to become a party to the suit unless he has an interest
MAccord, Forest Oil Co. vs. Crawford (1900 C. C. A. 3), 101 Fed. 849
(semble); Seligman vs. City of Santa Rosa (1897), 81 F. 524, 526, court has
not possession of the fund; United El. S. Co. vs. La. El. L. Co. (1895), 68 F.
673, 674.
51 See" above; also White vs. Ewing (1893), 159 U. S. 36, 39, citations;
Peck vs. Elliott (1897 C. C. A. 6), 79 F. 10, Lurton, J., later Justice; St.
L. S. F. Ry. vs. M'Elwain (1918), 253 F. 123, 128, citations.
52 Stewart vs. Dunham (1885), 115 U. S. 61, 64-5.
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in its object. "5 But, as will abundantly appear from cases
cited below, the possession of interest does not insure inter-
vention; various other conditions may interfere fatally.
The "object of the suit," in the quotation, has a wide mean-
ing. The interest may be of many kinds and degrees. It
may be as great as that of one of the original parties, or
even greater. Examples: Action of ejectment against the
tenant; the owner was admitted and allowed to become the
dominus litis.
5 4
Suit to quiet title; intervener claimed that
the defendant was its agent.
55
An indemnitor may inter-
vene to defend in a suit against his indemnities.
56
In a
patent suit against a user the maker may intervene as de-
fendant.
5 7
One company sued the commissioner of patents
in respect to a trade-mark; another company interested in
the trade-mark intervened.
58
In rate suits those interested
and not already adequately represented may intervene.
9
Car distribution; other coal operators.
60
Building of a
drawbridge, state and a city interested may intervene.
6
'
B succeeded in litigation from which he was to get a con-
tingent fee, and brought suit for his fee; he had engaged A
to assist him with a promise of one-third of the contingent
fee; A had a right to intervene in B's suit.2 In a suit
against the executor by one claiming to be the "heir-at-law"
spoken of in the will, all others who claimed to be the heirs-
at-law
were allowed
to intervene.
3
The intervener may have a legal interest, even a vital
"Krippendorf vs. Hyde (1834), 110 U. S. 276, 282.
Phelps vs. Oaks (1886), 117 U. S. 236, 240-1; Hardenbergh vs. Ray
(1894), 151 U. S. 112, 118-9.
" Boston Acme etc. vs. Salina Canyon etc. (1925 C. C. A. 8), 3 F. (2d) 729,
730-1.
Cohen vs. Md. Cas. Co. etc. (1925), 4 F. (2d), 564, 566-8.
"Wenborne-Karpen etc. vs. Dort M. Car Co. (1924), 300 F. 404, 406.
Baldwin Co. vs. Robertson (1924), 265 U. S. 168, 175.
"U. S. vs. Am. Ry. Exp. Co. (1924), 265 U. S. 425, 430; New Eng. Div.
Case (1923), 261 U. S. 184, 188; N. "Y. vs. U. S. (1922), 257 U. S. 591;
Wichita R. & L. Co. vs. Pub. Ut. Com. (1922), 260 U. S. 48, 52.
U. S. vs. New River Co. (1924), 265 U. S. 533, 536.
Cl City of Newark (Jersey City & State of N. J. interveners) vs. Central R.
Co. of N. J. (1924 C. C. A. 3), 297 1'. 77.
"Barnes vs. Alexander (1914), 232 U. S. 117, 122-3.
"Harrison vs. Nixon (1835), 9 Pet. 483, 490, 504, 540.
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INTERVENTION IN FEDERAL COURTS
legal interest, yet different from that of either party, and it
may be of less importance. In a street railroad receiver-
ship it was held that the affairs of the petitioner, another
street railroad company, were so tied up with the defend-
ant's affairs that the petitioner could do nothing after the
defendant's property was in the hands of a receiver; the
petitioner must be allowed to intervene.
0 4
Suit under anti-
trust law; mandate handed down by the Supreme Court; the
district court issued a decree in an effort to follow the man-
date; the U. S. appealed from the decree; companies inter-
ested were allowed to intervene to ask a modification of the
decree; on account of the pending appeal the modification
was refused; the companies petitioned the Supreme Court
to be allowed to intervene there and were admitted.
65
Per-
sons interested under a contract may intervene in a suit on
the contract.""
Sometimes persons are plainly interested but not legally,
that is, perhaps, not directly affected by the decree. They
are often heard as amici curiae and their interests regarded;
a stipulator for value ;67 indemnitor on a claimant's bond ;68
attorneys of persons not before the court, but vitally in-
terested.
6 9
Naturally, intervention is often denied because the peti-
tioner is held not to have the requisite interest. A simple
contract creditor of the mortgagor has been held not to have
sufficient interest to intervene in a foreclosure suit.70 In
Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325,
three reasons are given for such a refusal; (1) the petition-
er has a claim only on the equity of redemption; (2) if he
wishes to defeat the foreclosure, he is represented by the
'"Re Metropolitan Ry. Receivership (1908), 208 U. S. 90, 111.
"U. S. vs. St. L. Term. (1915), 236 U. S. 194, 199.
The Coca-Cola Bot. Co. vs. The C. C. Co. (1920), 269 F. 796, 815; A. R.
Young Const. Co. vs. Rd. Imp. Dist. No. 2 (1924 C. C. A. 8), 297 F. 127, 128,
138; Cal. Co-op Can. vs. U. S. (1924. Ct. App. D. C.), 299 F. 908, 912, 914.
The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 21-2.
Auditore C. Co. vs. Coal on Barge etc. (1924), 295 F. 694, 695.
eMeek vs. Centre County Co. (1924), 264 U. S. 499, 501-2, 504.
"Osborne & Co. vs. Barge (1887), 30 F. 805.
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(61) AMERICAN LAW REVIEW
mortgagor; (3) also in that case his petition lacks proper
subordination to the main suit. Of course simple contract
creditors often intervene in receivership cases, where the
court holds all the debtor's property in custodia legis, as
appears in topics, 5, Res., secs. 14-18. Nor may a simple
contract creditor of the mortgagee intervene in a fore-
closure suit, though he is otherwise remediless.
7 1
A specu-
lative claim in relation to a railroad being foreclosed is not
ground for intervention.
7 2
A city has not the requisite
interest in a rate suit between a gas company and the pub-
lic utilities commission.
73
Taxpayers have not the legal in-
terest to intervene in a suit against a municipality or other
public
corporation.
7 4
If this subject Interest were a division of a logical
scheme every case of intervention would fall under it, but
it is merely one topic amongst a number discussed in an ef-
fort to elucidate intervention, and other cases will be used
to illustrate other aspects.
V. RES.
See. 14. As appeared in the historical sketch,
75
the
earliest ground of intervention recognized in English law
was a claim upon property in the possession of the court, a
libeled ship in an admiralty court, sequestered land in a
chancery court. It is still the commonest ground. It de-
pends largely upon comity, or, as sometimes said, upon a
right higher than comity, a right inherent in a court to pre-
serve its own jurisdiction and enforce its own decrees.
This right of the court gives birth to a correlative right in
a claimant on the property to come to that court to assert
his claim. General statements of this right are common
" Glass vs. Woodman (1915 C. C. A. 8), 223 F. 621.
" Credits Com. Co. vs. U. S. (1898 C. C. A. 8), 91 F. 570, aff. 177 U. S.
311, 315.
" City of N. Y. vs. Cons. Gas Co. (1920), 253 U. S. 219.
"Seligman vs. City of Santa Rosa (1897), 81 F. 524, 526; Farmers' State
Bank vs. Bd. of Com'rs. etc. (1920), 295 F. 755, 758.
" See. 2.
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INTERVENTION IN FEDERAL COURTS
in the decisions of the supreme and lower federal courts.
76
The fact of possession creates the duty to hear the claim-
ant, whether that possession is rightful or wrongful.
77
Even when an appellate court has held that the lower court
had no jurisdiction, interveners have been admitted after
mandate handed down to ask modification of an order re-
storing the property.
7
And interveners should be heard
after mandate handed down.
79
On the contrary, it has been
held that the admission of interveners after mandate re-
ceived was improper.
80
Perhaps the last case may be dis-
tinguished by the allegations of the petitioners, which did
not ask relief "on account of the court's action, but attacked
the original defendant.
See. 15. One cause of the growth of intervention is the
increased and increasing frequency of receiverships. It
frequently happens when corporations fall into financial
difficulties, that they are put, or indirectly put themselves,
under the control of a federal court, which takes possession
of all their property by the hand of a receiver. If it is a
public service corporation, the receiver often carries on the
business for years. Interventions always occur, so much
as a matter of course that frequently they are not men-
tioned in the reports, or the right to intervene is not com-
mented on. However, many cases do explicitly uphold the
right of claimants on the res to intervene.
8
' That the claim
76 Hoffman vs. McClelland (1924) 264 U. S. 552, 558; Okla. vs. Tex. (1922),
258 U. S. 574, 581; Credits Com. Co. vs. M. S. (1900), 177 U. S. 311, 315;
Gregory vs. Pike (1895 C. C. A. 1), 67 F. 837, 844 et seq.; Pa. Co. for Ins.
etc. vs. Phil. Co. (1920 C. C. A. 3), 266 F. 1, 5-6; W. U. Tel. Co. vs. U. S. &
M. T. Co. (1915 C. C. A. 8), 221 F. 545, 552; Swift vs. Black Panther Oil
etc. (1917 C. C. A. 8), 244 F. 20, 30; Richfield Oil Co. vs. W. Mach. Co. (1922
C. C. A. 9), 279 852, 855; Equitable Tr. Co. vs. Port Wentworth Term. Corp.
(1922), 281 F. 883, 884; and numerous citations in these cases.
77Krippendorf vs. Hyde (1884), 110 U. S. 276; Gumbel vs. Pitkin (1888),
124 U. S. 131; Boltz vs. Eagon (1888), 34 F. 452; Compton vs. Jesup (1895
C. C. A. 6), 68 F. 263, 282-3; El. Supply Co. vs. Put-in-Bay Waterworks etc.
(1898), 84 F. 740, 742-3.
78Ex parte First Nat. Bank of Chicago (1907), 207 U. S. 61, 65.
El. Supply Co. vs. Put-in-Bay Waterworks etc. (1898), 84 F. 740, 743.
Brictson Mfg. Co. vs. Woodrough (1922 C. C. A. 8), 284 F. 484.
81 Field vs. K. C. Ref. Co. (1924 C. C. A. 8), 296 F. 800, 804, et seq.; Davis
vs. Miller-Link Lumber Co. (1924 C. C. A. 5), 296 F. 649, 650; Richfield Oil
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(61) AMERICAN LAW REVIEW
is legal does not militate against the propriety of interven-
tion.s2 A mortgagee may intervene to foreclose, or file a
dependent bill, or even file a bill independent in form, which
will be treated by the court as dependent.
8 3
This is the
commonest path to reorganization of large businesses;
creditor's bill, foreclosure by intervention of some sort, re-
organization with or without sale. The claim made need
not be to obtain the res; it may be to enforce contract
rights ;14 in a receivership in a suit by a lessee to quiet title
the lessor may intervene ;s5 a creditor may intervene to ob-
ject to allowances to the receiver and his counsel;"0 to col-
lect the assets of the corporation ;87 but it has been held that
a ereditor should not be allowed to intervene to compel pay-
ment of stock subscriptions until it appears that the court
and the receiver
are derelict
therein.
88
Sec. 16. Of course, the res need not be the whole estate
of the defendant. There may be in custodia legis an indi-
vidual piece of property or a fund arising from the sale
thereof, either in an action at law or in a suit in equity. In-
tervention lies.
8 9
The property may be seized in a replevin
suit; a claimant may intervene.
90
The res may be a chose
Co. vs. W. Mach. Co. (1922 C. C. A. 9), 279 F. 852, 856; Eq. Tr. Co. vs. Gt.
Shoshone etc. (1917 C. C. A. 9), 245 F. 697, 701 et seq., Sioux City Term.
1. W. Co. vs. Tr. Co. of N. A. (1897 C. C. A. 8), 82 F. 124, 128; Vicksburg,
S. & P. Ry. vs. Schaff (1925 C. C. A. 5), 5 F. (2d) 610.
u Boston & M. R. vs. Sullivan (1921 C. C. A. 1), 275 F. 890, 891-2; Mere. Tr.
Co. vs. Pittsburgh & W. Ry. (1902 C. C. A. 3), 115 F. 475, 476; Nashville Ry.
etc. vs. Bunn (1909 C. C. A. 6), 168 F. 862, 863-4; Rice vs. Durham Water
Co. (1899), 91 F. 433.
8Minot vs. Mastin (1899 C. C. A. 8), 95 F. 734, 739; Continental Tr. Co.
vs. Toledo, St. L. & K. C. R. (1897), 82 F. 642, 645; Eq. Tr. Co. of N. Y. vs.
Port Wentworth Term. Corp. (1922), 281 F. 883, 884; Atlantic Tr. Co. vs.
Dana (1903 C. C. A. 8), 127 F. 209.
14 Joy vs. St. Louis (1891), 138 U. S. 1, 12 et seq.
85 Shulthis vs. McDougal (1912), 225 U. S. 561, 567-8.
"King vs. Hiawatha Silk Mills (1924 C. C. A. 2), 296 F. 907.
11 Fulton Nat. Bank vs. Hosier (1923 C. C..A. 5), 295 F. 611. Reversed 267
U. S. 276 Adv. 0. (1924-5) p. 323 because under these facts this fund in ques-
tion was not assets of this company.
Hartford-Conn. Tr. Co. vs. Doherty (1923 C. C. A. 6), 286 F. 926.
'gFrench vs. Gapen (1881), 105 U. S. 509, 525; Freeman vs. Howe (1860),
24 How. 450, 460; Krippendorf vs. Hyde (1884), 110 U. S. 276, 280 et seq.;
McDermott vs. Hayes (1912 C. C. A. 1), 197 F. 129, 135-6.
m Barrett vs. Commercial Credit Co. (1924. App. D. C.), 296 F. 996.
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INTERVENTION IN FEDERAL COURTS
in actionY1 Certain exhibits in a patent suit were im-
pounded by the court; a United States attorney intervened
to obtain the use of the exhibits in a criminal prosecution;
the owner intervened
to prevent such use.
2
Sec. 17. Sometimes a claimant on a res under the' direc-
tion but not in the possession of the court may intervene.
In a foreclosure suit a conditional vendor, an assignee for
the benefit of creditors and a judgment creditor may inter-
vene.
9 3
The court had enjoined the defendant from dispos-
ing of the fund; a claimant might intervene ;94 but it has
also been held that to retain jurisdiction of a cause against
a trustee who held the legal title to property, for the pur-
pose of enforcing the terms of the trust, was not such cus-
todia legis as to permit claimants on the property to inter-
vene.
9 5
Perhaps the distinction is that in the former the
plaintiff might get the absolute ownership and so the claim-
ant be remediless, while in the latter the trust was enforced
only during the life of the cestui. Also it has been held
"that an action at law for the recovery of a sum of money is
for the benefit of the plaintiff only; that the court never
holds a fund for distribution; that therefore, claimants may
not intervene; that they lack interest in the res in this liti-
gation; that under a code it might be different, but that the
federal procedure preserves the sharp distinction between
law and equity. "6
Sec. 18. The res may be in custodia legis and the petition-
er have a real interest therein, and yet he may not inter-
vene. For example, he may have no interest in the instant
litigation, as when the question in the suit was the issuance
of certificates of stock, while petitioner's interest was in the
value, not in the title.
97
Again, he may have a more ap-
9
Lackner vs. MeKechney (1918 C. C. A. 7), 252 F. 403, 407.
11 Perlman vs. U. S. (1918), 247 U. S. 7, 12.
"Osborne & Co. vs. Barge (1887), 30 F. 805.
"
4
Leary vs. U. S. (1912), 224 U. S. 567, 573-5.
"
5
Hoffman vs. McClelland (1924), 264 U. S. 552, 559.
00M'Kemy vs. Sup. Lodge A. 0. U. W. (1910 C. C. A. 6), 180 F. 961, 956-6.
"Hurley vs. Pusey & Jones Co. (1921), 274 F. 487.
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(61) AMERICAN LAW REVIEW
propriate remedy; the court had ordered that all claims be
presented to the master; therefore a creditor might not
intervene as a party.
98
Also, the petitioner may have es-
topped himself from obtaining the relief sought; a trustee
who has accepted payments from a receiver may not inter-
vene to foreclose because the receivership is a breach.
9 9
A
claimant under a statute may not intervene if the statute
does not prescribe recovery in just such a suit.
100
VI. CLASS SUIT.
Sec. 19. The expression "class suit" is perhaps strictly
used of a suit brought by the complainant in his own behalf
and in the behalf of all others similarly situated. Some-
times he adds "who may choose to join in the prosecution
and expense of the litigation." However, the term is some-
times extended to include suits where the petitioner to inter-
vene is already represented by plaintiff or defendant; com-
mon examples are stockholder by corporation, and bond-
holder by trustee. In the first case, intervention is a mat-
ter of course, in the absence of peculiar circumstances. In
the second case, it is allowed only under especial circum-
stances. Such interveners are often called even before ad-
mission quasi parties. See below, Status, sec. 50.
Sec. 20. There is a discussion of strict class suits in a
recent case in the Supreme Court, Supreme Tribe of Ben-
Hur vs. Cauble (1921), 255 U. S. 356, 363 et seq. The class
there is a certain division of the members of the fraternal
order. It is held that all the 70,000 members of that class
are bound, and an ancillary suit in aid of the decree will lie
against any members, whether they were active parties or
not, and regardless of citizenship. Jurisdiction in the
original suit was based wholly on diverse citizenship. A
common example of a class suit is a creditor's suit in which
" Acme White Lead etc. vs. Rep. M. Truck Co. (1922), 285 F. 88.
'First Fed. Tr. Co. vs. First Nat. Bank (1924 C. C. A. 9), 297 F. 353, 356.
"' U. S. Tr. Co. vs. Miller (1923), 262 U. S. 58; Aronstam vs. James (1921),
273 F. 545, 547, et seq.; U. S. vs. N. W. Dev. Co. (1913 C. C. A. 9), 203 F. 960,
962.
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INTERVENTION IN FEDERAL COURTS
other creditors of the defendant intervene as plaintiffs.
1
'
1
But even if the complainant has sued for itself and for all
other creditors joining, a creditor may be refused leave to
intervene merely to present a claim and to demand pri-
ority.
1
0
2
In this case the court had ordered all claimants
to appear before the master, so that the petitioner was not
remediless. The ground for denial was the inconvenience
of admitting all creditors as parties. In the Ben-Hur case,
above, the impossibility of getting or admitting all members
of the class was mentioned. Sometimes it is a stockhold-
er's suit, as S. Pac. Co. vs. Bogert (1919), 250 U. S. 483,
497-8. The court said that it was at least a proper exercise
of discretion on the part of the trial court to admit other
stockholders.
0 3
_ Sometimes a petitioner in the same inter-
est as the plaintiff is admitted, to avoid circuity and
delay.'
0 4
Sec. 21. Already represented. (1) Stockholders. In a
suit against a corporation stockholders frequently try to
intervene. "The right of minority stockholders of a cor-
poration to intervene in a foreclosure suit when the cor-
poration threatens, by collusion or otherwise, to neglect the
proper defense of the suit, is established by a line of de-
cisions (Dodge vs. Woolsey, 18 How. 331, 341, 15 L. Ed.
401; Davenport vs. Dows, 18 Wall. 626, 21 L. Ed. 938, and
subsequent cases), but when they intervene they do so, not
as individuals, but as stockholders, in the assertion of rights
common to the stockholders, which the corporation itself
has declined to protect. Dickerman vs. Northern Trust Co.,
176 U. S. 181, 188, 20 Sup. Ct. 311, 44 L. Ed. 423. In the
present case, where the interveners seek no affirmative re-
lief of their own in the rescission of the agreement by which
they acquired their preferred stock, but ask only that a fore-
.. Stewaxt vs. Dunham (1885), 115 U. S. 61, 64; First Fed. Tr. Co. vs.
First Nat. Bank (1924 C. C. A. 9), 297 F. 353, 358; MeAtammey vs. Common-
wealth Hotel etc. Corp. (1924), 296 F. 500, 503.
102 Acme White Lead etc. vs. Rep. Motor Truck Co. (1922), 285 F. 88.
1'3 See also Forbes vs. Memphis etc. R. (1872), Fed. Cas. No. 4, 926.
"'Elder vs. W. Mining Co. (1922 C. C. A. 8), 280 F. 569, 578.
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(61) AMEBICAN LAW REVIEW
closure be denied on the ground that the mortgage, for dif-
ferent reasons, was invalid and void, they must stand upon
the rights open to the corporation itself. "0 Under proper
allegations of the failure of the corporation to defend,
stockholders may intervene. The fact that none of their
defenses turn out good does not affect their right to be
heard and to have their pleas decided, and to be advised
that their only relief is to contest after sale claims on the
fund.
0
"The rule that a stranger will not be adlmitted
as defendant over the plaintiff's objection has exceptions.
Quasi parties, such as stockholders in a suit against a cor-
poration, may, upon proper showing, be admitted as de-
fendants. Fraud, collusion, bad faith, failure to defend,
are proper grounds. Definite, tangible facts must be al-
leged. "0 Stockholders may intervene after a decree pro
confesso to attack the trustee's procedure in a foreclosure
suit; that the intervention is not in subordination to and in
recognition of the propriety of the main suit, under equity
rule 37, is immaterial, since the petition is regardbd by the
court in the nature of an answer by parties defendant.1
0 8
This insubordination is often allowed'
09
-is it because the
interveners are quasi parties even before intervention? or
on account of the potency of fraud, that overrides many
rules? Many of these cases speak of the stockholder's
"right" under these conditions and the Zeitinger case
(see'
09
) overruled the trial court's denial of intervention.
But in earlier cases intervention under these circum-
105 Big Creek etc. Co. vs. Am. L. & Tr. Co. (1904 C. C. A. 6), 127 F. 625, 633.
Dickerman vs. N. Tr. Co. (1910), 176 U. S. 181.
"'Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 280 F. 934, 939; 283
F. 681, allowed on amended petition. See to same effect, Eq. Tr. Co. vs.
Wash.-Idaho etc. (1924), 300 F. 601, 613 and citations; McGraw vs. Mott
(1910 C. C. A. 4), 179 F. 646, 654.
' Couch vs. Cent. Bank etc. (1924 C. C. A. 5), 297 F. 216.
1.N Cent. Tr. Co. vs. MeGeorge (1894), 151 U. S. 129, 131; Carey vs. Houston
& T. C. Ry. (1891), 45 F. 438; same style (1892), 52 F. 671; In re Dressler
Prod. Corp. (1919 C. C. A. 2), 262 F. 257, 258; Zeitinger vs. Hargadine-Me-
Kittrick etc. (1917 C. C. A. 8), 244 F. 719, 723, a bankruptcy case; see In re
Beaver Cotton Mills (1921), 275 F. 498, 500-1, the peculiar conditions of a
bankruptcy suit make it proper to admit a minority stockholder to contest
the directors' action in instituting the proceeding.
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INTERVENTION IN FEDERAL COURTS
stances was considered discretionary.'
1
0 In the absence
of fraud it is a wise exercise of discretion to refuse leave to
intervene."' Stockholders may not intervene to set aside
a sale when it is clear that no better sale could be made.
1
'
2
Stockholders may not intervene to bring out defenses that
they claim the corporation should have made in a former
action, they are bound by the former judgment, unless they
can show extraneous fraud in the former case.
1 8
Nor may
they file an ancillary nor a formally independent bill for
the same purpose.
114
It has been held that a stockholder
may not intervene in a receivership suit to set aside all
proceedings; if he has any rights on account of fraud or
collusion he should bring a separate suit."'
Sec. 22. Bondholders. There are contradictory general
statements respecting a bondholder's right to intervene in
a suit that involves the property mortgaged for his benefit.
But the actual decisions under the circumstances of each
case perhaps do not conflict. One opinion declared that
when a court has taken possession of all the property of a
corporation including the operating revenue, all creditors,
including bondholders and trustees in deeds of trust, have an
assertible interest in the paying out of this revenue and
may intervene and contest payment and appeal from de-
crees.
1 6
This is, of course, the res doctrine, but does not
mention limitations, for example, inconvenience, or suffi-
cient representation. According to another opinion, "In-
dividual bondholders, under the rule of procedure in such
matters, are not permitted to intervene, except in certain
" Ex parte Cutting (1876), 94 U. S. 14, 21; Bronson vs. LaCrosse R. (1863),
2 Wall. 283, 301-4.
"Cole vs. Seaman (1920 C. C. A. 8), 266 F. 846.
'Beers vs. Eq. Tr. Co. (1923 C. C. A. 8), 286 F. 878, 882.
"'Levy vs. Eq. Tr. Co. (1921 C. C. A. 8), 271 F. 49, 56; Beers vs. Eq. Tr.
Co. (1923 C. C. A. 8), 286 F. 878, 881.
1Beers vs. Eq. Tr. Co. (1923 C. C. A. 8), 286 F. 883; Beers vs. Denver &
R. G. W. R. (1923 C. C. A. 8), 286 F. 886.
"'Forbes vs. Memphis etc. R. (1872), Fed. Cas. No. 4, 926; Hutchison vs.
Philadelphia etc. Co. (1914), 216 F. 795, 798-9.
'Pa. Co. for Ins. etc. vs. Phil. Co. (1920 C. C. A. 3), 266 F. 1, 5-6. See
also Ill. Steel Co. vs. Ramsey (1910 C. C. A. 8), 176 F. 853, 863-4 and citations.
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(61) AMERICAN LAW REVIEW
cases, of which this is not one; for the record shows that
petitioner, as bondholder and as stockholder, is adequately
protected in the decree of sale, and that he has been and
now is properly represented in the court to which he de-
sires the writ of mandamus to go."
' 117
The opinion of
Judge, afterwards Justice, Lurton in Toler vs. E. Tenn.,
V. & G. Ry. (1894), 67 F. 168, is a treatise on intervention
by bondholders in a foreclosure suit. In that opinion a
quasi party is distinguished from a stranger; one ground
for leave is the allegation of facts showing bad faith on the
part of the trustees; another is a difference of opinion
among bondholders in the interpretation of the trust deed.
The following cases illustrate different conditions, and
wide or narrow activities allowed an intervening bondhold-
er. Nonconsenting bondholders have a right to intervene
in a foreclosure suit where the plan of purchase has been
made by some bondholders and the trustees; they need not
wait till the motion to confirm the sale; the order denying
leave was final and appealable."" Bondholders may inter-
vene as defendants, with some restrictions in respect to
proceedings had before their advent.
1 9
They may inter-
vene to appeal from a decree ;120 and to make claim on a
fund and to contest other claims.
121
Sometimes there is an
explicit distinction drawn between attempting to control
the suit in some way, such as delaying the sale, and merely
making a claim on a fund and contesting other claims, either
by intervention or appearance before a master; the former
may be denied while the latter is granted.
22
Even if he
"Reid vs. Judges of Circuit Court (1909 C. C. A. 4), 175 F. 774, 775.
11. Central Tr. Co. vs. C. R. I. & P. Ry. (C. C. A. 2), 218 F. 336, 339.
"Ex parte Jordan (1876), 94 U. S. 248, 251-2.
12 Sage vs. Railroad Co. (1877), 96 U. S. 712, 713.
"'Williams vs. Morgan (1884), 111 U. S. 684, 696 et seq., Swann vs.
Wright's Exr. (1884), 110 U. S. 590, 594; King vs. Barr (1920 C. C. A. 9),
262 F. 56, 60, 62; Drascovich vs. Eq. Tr. Co. (1925 C. C. A. 9), 3 F. (2d)
724; Mercantile Tr. Co. vs. U. S. Shipbuilding Co. (1904), 130 F. 725.
uCentral Tr. Co. v4. Cincinnati, H. & D. Ry. (1908), 169 F. 466; Tr. Co.
of Am. vs. Norfolk & S. Ry. (1909), 174 F. 269.
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INTERVENTION IN FEDERAL COURTS
may not delay the sale he may be allowed to intervene to
protect his interests in the form of the decree.
123
VII. QUASI PARTIES.
Sec. 23. The term "quasi party" is not technical. It is
used in this topic to designate persons who become inter-
ested in a suit in the course of the litigation or by the final
decree. It may be that members of a class discussed in a
separate topic, just before this topic, should logically be
considered as one division of quasi parties. But logical
subdivision seems impossible in this subject, and is inten-
tionally cast aside. The rights and obligations of quasi
parties have been recognized for half a century and more.
General statements thereon from cases early and late ap-
pear above under Kinds, number 7, sec. 3, p. 5. Therefore
it is perhaps sufficient here to call attention to some special
instances.
A receiver's rights and duties to join in or initiate litiga-
tion and to appeal for the protection of the estate in his
hands or for the protection of his own interests are defined
and limited in the leading case on the subject, Bosworth vs.
Terminal Railroad Association (1899), 174 U. S. 182; in
that case the receiver opposed a claim against the estate
and appealed from a decree approving the claim; he was
held to be within his right and duty. A receiver's petition
for an injunction in defense of the corporation's franchise
has been called an intervention.
124
A receiver may file an
ancillary bill to protect the estate.
2
A receiver may per-
sent a petition against a stockholder
26
or other debtor
2 7
of the corporation. He may intervene in a suit against the
corporation.
2 8
He may appeal from an order that affects
him individually.
29
A clerk of court may intervene to col-
Fidelity Tr. Co. vs. Wash-Or. Corp. (1914), 217 F. 588, 603.
"ABegg vs. N. Y. City (1923), 262 U. S. 196.
11 Ohio R. R. Comm. vs. Worthington (1912), 225 U. S. 101.
"Peck vs. Elliott (1897 C. C. A. 6), 79 F. 10, Lurton, J.
" White vs. Ewing (1895), 159 U. S. 36, 39. Citations.
12 Perry vs. Godbe (1897), 82 F. 141, 143.
'Hinckley vs. Gilman etc. R. (1876), 94 U. S. 467.
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(61) AMERICAN LAW REVIEW
lect costs and commissions from a party.
180
An attorney
to claim payment for services that benefited the estate in a
receivership.
1
3
1
A very common instance of quasi parties is that of per-
sons affected by the final decree, especially a decree of sale.
For example, a bidder;
18 2
purchaser or claimant, by appli-
cation at foot of the decree or by dependent guit ;113 per-
sons in contractual relation with a party.
8 4
Even one not
directly affected by the decree, as, in admiralty, a stipulator
for value, if he does appear, may be treated as an amicus
and his contentions determined, to avoid circuity.
8 5
VIII. PUBLIC CORPORATIONS AND OFFICIALS.
Sec. 24. Public officials should be allowed to intervene
when public interest will be affected. The United States
has such an interest in a boundary dispute between two
states that it may intervene as an active party ;136 formerly
it was held that the nation might intervene in such a suit
only by the special appearance of its attorney-general, but
not as a party.
8 7
New York sought an injunction against
New Jersey to prevent the discharge of sewage into New
York Bay; the United States intervened on account of its
power and duty with respect to navigation and interstate
commerce, and to protect the health of its employees, and
to protect its property.
13 8
The state attorney-general was
allowed to intervene in a suit by a club to enjoin fishing in a
pond that was subject to state control;189 the court opti-
1In re Mich. Cent. R. Co. (C. C. A. 6), 124 F. 727, 730.
'Louisville etc. R. vs. Wilson (1891), 138 U. S. 501, 506.
I
2
Kneeland vs. Am. Loan Co. (1890), 136 U. S. 89, 93 et seq. and citations.
IWilliams vs. Morgan (1883), 111 U. S. 684, 696; Julian vs. Central Tr.
Co. (1904), 193 U. S. 93, 133-4; St. L.-San Franc. Ry. vs. McElvain (1918),
253 F. 123, 129, Phipps vs. Chic., R. I. & P. Ry. (1922 C. C. A. 8), 284 F.
945, 955.
Cincinnati, I. & W. R. vs. Indianapolis Union Ry. (1922 C. C. A. 6), 279
F. 356, 361 et seq.
" The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 21-2.
is: Okla. vs. Tex. (1920), 252 U. S. 372.
"'Fla. vs. Gas. (1854), 17 How. 478, 490.
N. Y. vs. N. J. (1921), 256 U. S. 296, 303-4.
Percy Summer Club vs. Astle (1901), 110 F. 486, 491.
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INTERVENTION IN FEDERAL COURTS
mistically remarked that private parties should not object
to intervention by public officials, for courts can hold the
scales of justice equally between a private person and a
sovereignty. The attorney-general of Porto Rico was
heard in the protection of water rights.
14 0
The United
States attorney-general made a suggestion in a patent in-
fringement suit involving property of the nation.
141
In
another case the court had impounded certain exhil5its; a
United States attorney was admitted to petition the court
for the use of the exhibits before a grand jury to obtain an
indictment against their owner for perjury.
14 2
But there
is no general right to intervene to obtain property in the
court's possession to aid in a criminal proceeding; after a
United States district attorney had been admitted as an
intervener by the trial court, the court of appeals ordered
his dismissal as a party because he might prejudice both the
United States and the parties, and also because he had more
appropriate
remedy by the process of the criminal court.1
4 3
If a foreign sovereign wishes to claim immunity from suit
he must employ one of three methods: (1) by intervening
as a party and thus submitting himself to the jurisdiction;
(2) by his ambassador's intervention in the same manner;
or (3) through diplomatic negotiations resulting in the ap-
pearance of the United States attorney-general to make a
suggestion to the court, (which of course, would be fol-
lowed, though the theory seems to be'
4 4
that the judicial
tribunal is not controlled by the executive department even
in a question of foreign relations).
4 5
Probably nearly all
the occasions for the application of these rules have been in
admiralty, but not all, as a recent federal case proves.
14 6
The early case of the Exchange (1812), 7 Cranch 116, 147,
1 4
Veitia vs. Fortuna Estates (1917 C. C. A. 1), 240 F. 256, 263.
'1' Belknap vs. Schild (1896), 161 U. S. 10, 12-3.
1
1 2
Perhnan vs. U. S. (1918), 247 U. S. 7, 12.
'4' Potter vs. Beal (1892 C. C. A. 1), 50 F. 860, 864.
1 McFaden vs. The Exchange (1811), Fed. Cas. 8, 786.
"
4
Ex parte Muir (1920), 254 U. S. 522, 532-3, dictuin followed in the de-
cision of The Pesaro (1921), 255 U. S. 216.
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(61) AMERICAN LAW REVIEW
followed the third method given above, except that the
executive department directed a United States district at-
torney to suggest the immunity in the district court.
146
The
attorney-general argued the immunity before the Supreme
Court.
IX. CONVENIENCE.
Sec. 25. Convenience and avoidance of delay and of
circuity of action are often spoken of in connection with
other grounds of intervention, perhaps more especially in
class suits. See above Topic 6, Class suits, Secs. 20-22,
pp. 22-25. Convenience may be the controlling principle
in granting or refusing leave to intervene. Leave was
granted on this ground to creditors of a partnership in the
course of being wound up, for the convenience both of the
original parties and of the interveners; and they were ad-
mitted as parties, not merely as claimants on a fund.
147
Persons with the same interests as plaintiffs should be al-
lowed to intervene to avoid circuity of action and delay.
48
There was a creditor's suit, and then foreclosure; claimants
on the fund were allowed to intervene nearly five years
after such sale, as "the claims of the interveners would
more speedily reach a final and satisfactory adjudication by
permitting them to plead and prove them than by refusing
to do so.'"49 Though a person may have no right to inter-
vene and then appeal, if he does appear in the appellate
court, to avoid circuity and delay he may be heard and his
contentions determined.
6 0
X. ANCILLARY SUIT.
Sec. 26. The grounds upon which ancillary suits are
filed are grouped together by the courts, so perhaps this is
an appropriate topic of the chapter on grounds of inter-
' Kunglig Jarn. vs. Dexter & Carpenter (1924), 300 F. 891.
'Lackner vs. McKechney (1918 C. C. A. 7), 252 F. 403, 408.
1 Elder vs. W. Mining Co. (1922 C. C. A. 8), 280 F. 569, 578.
14 9
N. Am. Co. vs. St. L. & S. P. R. (1922), 288 F. 612, 617, 619 et seq.
150 The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 21-2.
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INTERVENTION IN FEDERAL COURTS
vention. Of course, the circumstances under which such a
suit may be filed are touched upon under all the topics. The
leading case is Julian vs. Central Trust Co. (1904), 193
U. S. 93. At page 113 the court says, "The authorities are
collected in a note to see. 97, vol. i, of Bates on Federal
Equity Procedure, and the doctrine thus summarized: 'It
would seem that the prevention of the conflict of authority
between the state and federal courts, and the protection
and preservation of the jurisdiction of each, free from en-
croachments by the other, are considerations which lie at
the very foundation of ancillary jurisdiction. A bill filed
to continue a former litigation in the same court, or which
relates to some matter already partly litigated in the same
court, or which is an addition to a former litigation in the
same court, by the same parties or their representatives
standing in the same interest, or to obtain and secure the
fruits, benefits and advantages of the proceedings and
judgment in a former suit in the same court by the same or
additional parties, standing in the same interest, or to pre-
vent a party from using the proceedings and judgment of
the same court for fraudulent purposes, or to restrain a
party from using a judgment to perpetrate an injustice, or
obtain an inequitable advantage over other parties to the
former judgment or proceeding, or to obtain any equitable
relief in regard to, or connected with, or growing out of,
any judgment or proceeding at law rendered in the same
court, or to assert any claim, right or title to property in the
custody of the court, or for the defence of any property
rights, or the collection of assets of any estate being admin-
istered by the court, is an ancillary suit.' " To same effect,
and an interesting example, is Central U. Tr. Co. vs. Ander-
son County (1925), U. S. Adv. 0. (1924-5), p. 469.
St. Louis-San Francisco Ry. vs. M'Elvain (1918), 253 F.
123, relies upon the Julian case, and on page 128 its words
are, "A suit in equity, dependent upon an original suit or
action of which the federal court had jurisdiction, may be
maintained in that court (1) to aid, enjoin, or regulate the
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original suit; (2) to restrain, avoid, explain, or enforce the
judgment or decree therein; (3) to enforce or adjudicate
liens upon or claims to property in the custody of the court
in the original suit; and (4) to enforce its decree or judg-
ment in the original suit, to prevent the relitigation in
other courts of the issues it has heard and adjudged in the
original suit, and to protect the titles and rights acquired
by purchasers under its decree, or judgment from attacks
by suit or otherwise, based on the theory that its adjudica-
tions in the original suit were illegal and ineffective, and to
accomplish these ends the court has the jurisdiction and au-
thority to use its writs of injunction and its writs of as-
sistance," followed by citations.
A few special examples may not be amiss. A defendant
may bring a bill to have a decree defined and to correct a
mistake in the execution thereof.
151
A defendant in an
action at law may file a bill in equity to enjoin the proceed-
ing at law and to pray that all controversies be settled in a
suit in equity, on the two grounds that he had equitable de-
fenses and to avoid a multiplicity of suits.152 A plaintiff
in an action at law may file a bill in equity when he needs
equitable methods and remedies.1
6 3
In the last case the
court suggested that procedure. In another case, R brought
a suit in Utah to foreclose a mortgage on a railroad. Later
he attempted to bring an ancillary suit in New York against
a banking firm engaged in managing a consolidation that
included the Utah railroad. It was held that this was not
an ancillary suit; for it was in a different court, and the
connection between the issues in the two suits was too re-
mote.
1 4
A taxpayer whose petition to intervene in a suit
against his town has been denied for lack of interest may
not bring an ancillary suit to enjoin the enforcement of the
judgment2
5
5
U Minn. Co. vs. St. Paul Co. (1864), 2 Wall. 609, 633.
Eichel vs. U. S. Fid. etc. Co. (1917), 245 U. S. 102.
1 5
Lumley vs. Wabash R. (1896 C. C. A. 6), 76 F. 66, 69.
15 Raphael vs. Trask (1904), 194 U. S. 272, 278.
'5' McDonald vs. Seligman (1897), 81 F. 753, 759.
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INTERVENTION IN FEDERAL COURTS
XI. OPPOSITION TO THE MAIN SUIT.
Sec. 27. Under some circumstances this is a legitimate
aim of intervention. As the subject seems more closely
connected with the status and rights of the intervener than
with the grounds of his intervention, a discussion of the
cases and recent tendency is postponed to the chapter on
Status, topic 3, subordination, Sec. 56.
XII. DENIED.
Sec. 28. A list of the usual grounds for dismissing a peti-
tion to intervene may be helpful, in spite of unavoidable
repetition:
(1.) No interest in the instant litigation.
(2.) No right to the remedy sought.
(3.) A more appropriate remedy.
(4.) Inconvenience.
(5.) Interests already cared for.
(6.) Laches.
(7.) Insubordination.
(8.) At law.
(9.) No res in custodia legis.
(10.) Ousts jurisdiction.
Sec. 29. No interest in the instant litigation. The neces-
sity of interest was stressed under Interest, Sec. 13, pp. ,
and some examples were given of claims that fell short of
the requisite interest. The first question to answer is
whether the petitioner has an interest in this litigation. It
is not sufficient to have a cause of action against the plain-
tiff in a foreclosure suit, though his bonds have been de-
posited with the master; not even if the petitioner is other-
wise remediless.
156
A simple contract creditor of the de-
fendant may not intervene in a foreclosure suit; he is not
interested in the litigation, for his only claim is on the
equity of redemption.
157
Interest in the res in custodia
Glass vs. Woodman (1915 C. C. A. 8), 223 F. 621.
157 Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325.
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(61) AMERICAN LAW REVIEW
legis is not a ground unless that precise interest will be
affected by the decree in this suit.158 Nor in property held
by a trustee under the direction of the court.
15 9
Nor in
property sued for at law in a federal court, though under a
code such relief might be granted.
160
But see above, At
Law, secs. 8 and 9.
Sec. 30. No right to the remedy sought. Of course from
one point of view a denial of intervention is always a hold-
ing that the petitioner has no right to the remedy of inter-
vention. But that is rather procedural. From another
point of view, the petition to intervene is often denied on
the ground that the petitioner has no right to the particular
remedy that he seeks by means of intervention. Many
other grounds might fall under this head, or at least shade
into this idea; but sometimes one aspect is clearer or more
influential, sometimes another. To stockholders this aspect
must often be the most vivid. They have a deep interest;
they may have real grievances; yet often they have no right
to the remedy they are seeking. They may not intervene
to bring out defenses that they claim the corporation should
have made in a former action; they are bound unless they
can show extraneous fraud in the former case."" Nor may
they bring ancillary suits, though called independent, to ac-
complish the same end.
62
Nor intervene to set aside a
sale when it is clear that no better price could be got.
6
"
Nor to show wrongdoing and conspiracy of officers and re-
ceiver without averring pertinent facts.
6 4
Nor in the
absence of fraud to set up solvency after the directors have
admitted insolvency.
65
Nor may a bondholder intervene
1
8Hurley vs. Pusey & Jones Co. (1921), 274 F. 487.
"Hoffman vs. McClelland (1924), 264 U. S. 552, 559.
1
10 M'Kemy vs. Sup. Lodge A. 0. U. W. (1910 C. C. A. 6), 180 F. 961, 965-6.
"' Levy vs,. Equitable Tr. Co. (1921 C. C. A. 8), 271 F. 49, 56; Beers vs.
Equitable Tr. Co. (1923 C. C. A. 8), 286 F. 878, 881.
'6 Beers vs. Equitable Tr. Co. (1923 C. C. A. 8), 286 F. 883; Beers vs.
Denver etc. R. (1923 C. C. A. 8), 286 P. 886.
'1Beers vs. Equitable Tr. Co. (1923 C. C. A. 8), 286 F. 878, 882; Hutchin-
son vs. Phil. & G. S. S. Co. (1914), 216 F. 795, 798-9.
,0 Hutchinson vs. Phil. & G. S. S. Co. (1914), 216 F. 795, 798-9.
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INTERVENTION IN FEDERAL COURTS
under the same circumstances to set up solvency; and he is
likewise bound by the actions of the trustee so as to be
estopped to question jurisdiction, appointment of the re-
ceiver and issuance of receiver's certificates.' When the
object of intervention is-to object to the jurisdiction of the
court, on a decision that the court has jurisdiction the order
refusing intervention should be upheld.
16
When a trustee
has waived default he may not intervene in a receivership
suit to get possession or foreclose.
16
Intervention is not
allowed for the purpose of a collateral attack on the judg-
ment of another court.
1 9
Before a prosecuting attorney
has obtained some appropriate order from the court in
charge of criminal proceedings he may not intervene in a
civil suit to get documents to be used in the criminal suit.
1 0
A lessor may not intervene to compel his lessee's receiver
to adopt the lease or to pay rent accrued before his appoint-
ment; since the lessor has no such claim against the re-
ceiver, whatever claims he may have against the lessee.
171
Several roads had a contract relating to a union station;
on the foreclosure of one, others might not intervene to en-
force the contract against the purchaser.
172
If all remedies
are controlled by a statute, and the statute does not allow
the remedy sought by the intervening petition, the interven-
tion must be denied; a lien property ;173 license tax, though
collectors
were otherwise
remediless.
7 4
Sec. 31. A more appropriate remedy. Sometimes a de-
cision holds that the petitioner has no right to the remedy
asked, but suggests that he may set up his claim in some
" Cole vs. Seaman (1920 C. C. A. 8), 266 F. 846.
1 Pillinger vs. Beaty (1920 C. C. A. 4), 265 F. 551, 544 et seq.
18 Re Metropolitan Ry. Receivership (1908), 208 U. S. 90.
18 First Fed. Tr. Co. vs. First Nat. Bank (1924 C. C. A. 9), 297 F. 353, 358.
19 Clarke vs. Eureka County Bank (1902), 116 F. 534.
170 Potter vs. Beal (1892 C. C. A. 1), 50 F. 860, 864.
1Empire Distilling Co. vs. MeNulta (1897' C. C. A. 7), 77 F. 700, 704-5.
1 7
K. C. Term. Ry. vs. Cent. U. Tr. Co. (1923 C. C. A. 8), 294 F. 32.
"Aronstam vs. James (1921), 273 F. 545, 547 et seq; U. S. Tr. Co. vs.
Miller (1923), 262 U. S. 58; Ahrenfeldt vs. Miller (1923), 262 U. S. 60.
..U. S. vs. N. W. Dev. Co. (1913 C. C. A. 9), 203 F. 960, 962.
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different way, by another form of intervention or by an in-
dependent
suit.'
7 5
Sec. 32. Inconvenience. If the petitioner is not other-
wise remediless, grave inconvenience, delay and infringe-
ment of plaintiff's control of his suit are sometimes factors
in the exercise of the court's discretion whether the inter-
vention shall be allowed.
7
"
Sec. 33. Interests already cared for. Under what cir-
cumstances the interests of stockholders or bondholders are
sufficiently cared for in a suit involving the corporation or
mortgagor or trustee has been set forth above. (Class
suit. Already represented, secs. 21, 22.) Sufficient repre-
sentation is not confined to these classes. It has been held
that if a simple contract creditor of the mortgagor in a fore-
closure suit wishes to defeat the mortgage, he is sufficiently
represented by the mortgagor. (Quaere, Is he always?7)1
7
In a receivership creditors may not intervene to collect un-
paid stock subscriptions, at least until it appears that the
receiver and the court are derelict therein.'
7 8
But a credi-
tor is sometimes allowed to intervene to compel the collec-
tion of an asset claimed by the receiver.'
7 9
When a peti-
tioner 's interests are completely taken care of by parties to
the suit, leave to intervene is in the trial court's dis-
cretion.
8 0
Sec. 34. Laches. It has frequently been held that the
right or privilege of intervention may be lost by laches.
Naturally no general rule can be laid down. Injustice to
"'Forbes vs. Memphis etc. R. (1872), Fed. Cas. No. 4, 926; Hutchinson vs.
Phil. & G. S. S. Co. (1914), 216 F. 795, 798-9; Credits Com. Co. vs. U. S.
(1898 C. C. A. 8), 91 F. 570, aff. (1900) 177 U. S. 311, 315; Ex parte
Mensing (1893), 55 F. 17; Acme White Lead etc. vs. Rep. Motor Truck Co.
(1922), 285 F. 88; Gravenberg vs. Laws (1900 C. C. A. 1), 100 F. 1, 6.
"'Gregory vs. Pike (1895 C. C. A. 1), 67 F. 837, 845; Richfield Oil Co. vs.
W. Mach. Co. (1922 C. C. A. 9), 279 F. 852, 855; Glass vs. Woodman (1915
C. C. A. 8), 223 F. 621; Hutchinson vs. Phil. & G. S. S. Co. (1914), 216 F.
795, 798-9; Leaver vs. K. & L. Box & L. Co. (1925), 6 F. (2d) 666; Bache vs.
Hinde (1925 C. C. A. 6), 6 F. (2d) 508, 513.
"'Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325.
"' Hartford-Conn. Tr. Co. vs. Doherty (1923 C. C. A. 60), 286 F. 926.
"'Fulton Nat. Bank vs. Hosier (1923 C. C. A. 5), 295 F. 611, 612 et seq.
1I City of N. Y. vs. N. Y. Teleph. Co. (1923), 261 U. S. 312, 316.
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INTERVENTION IN FEDERAL COURTS
others, delay, inconvenience are all strong grounds for re-
fusing late interventions. Judge Sanborn, of the Eighth
Circuit Court of Appeals, has made clear the necessity for
a time limit to the filing of claims in receivership proceed-
ings.
8
" A petition to intervene should be denied when the
petitioner has allowed others to take the risk and bear the
burden of litigation.1
2
The final (?) opinions in the pro-
tracted litigation between the Southern Pacific Company
and Bogert (Bogart?) and his predecessors in interest (So.
Pac. vs. Bogert (1919), 250 U. S. 483, 488-91 and Bogart
vs. So. Pac. (1923, C. C. A. 2), 290 F. 727, 732) are illuminat-
ing on the subject of laches. Bogert's predecessors and
other stockholders in a railroad subsidiary to the Southern
Pacific spent twenty-two years in fruitless search for "the
appropriate remedy, though well known," and then hit up-
on it; they recovered against defenses of laches, res
judicata, election of remedies, estoppel. But others of the
same class as these pertinacious plaintiffs, who did not join
in these long and arduous labors, were not allowed to inter-
vene to reap the fruits. Judge Hough grows facetious over
such parasites, "It is now easy, after the ship of litigation
has emerged from a most stormy sea, for persons who years
ago did not seek to be even passengers, to climb on board
and enroll themselves among the crew." He also says,
"Further, these interveners have all been guilty of marked
'lack of diligence in seeking a remedy,' which is laches, and
they are not now entitled in equity to avail themselves of
the remedies of others. "1813 Petitioner is too late after
plaintiff has moved to dismiss the bill.'
84
A claimant in the
suit for months before final decree may not intervene
months after final decree to attack the decree.'
85
Creditors
interveners in a foreclosure suit may not after sale amend
I" N. Am. Co. vs. St. L. & S. F. R. (1922), 288 F. 612, 619 et seq.
m Eq. Tr. Co. vs. Great Shoshone etc. (1917 C. C. A. 9), 245 F. 697.
" Bogart vs. So. Pac. Co. (1923 C. C. A. 2), 290 F. 727, 732.
' Allington vs. Shevlin-Hixon Co. (1924), 2 F. (2d) 747, 749.
'Commercial El. Sup. Co. vs. Curtis (1923 C. C. A. 8), 288 F. 657, 660-1.
"'F irst Tr. Co. vs. Ill. Cent. R. (1918 C. C. A. 8), 252 F. 965, 968.
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their petitions so as to attack the validity of the trust
deed."
8
" Bondholders may not intervene months after final
decree and sale as to any matters except disposal of funds
still in receiver's hands.'
1 8 7
Sometimes laches is one among
several grounds of refusal.
1 88
See. 35. Insubordination. This ground for refusal is
perhaps of more importance in connection with the status
and rights of interveners, so its discussion will be postponed
to chapter 3, topic 3.
At law. For denial of leave to intervene because the
instant proceeding is at law, see above. At law, secs. 8
and 9.
For denial because there is no res in custodia legis see
above No res, sec. 110.
For the effect of questions of jurisdiction, see above, Jur-
isdiction, secs. 11 and 12.
(To Be Concluded in the March-April Number.)
ANNE BATES HERSMAN.
St. Louis, Mo.
King vs. Barr (1920), 262 F. 56, 60.
'Levy vs. Eq. Tr. Co. (1921 C. C. A. 8), 271 F. 49, 55; U. S. Tr. Co. vs.
Chic. Term. etc. (1911 C. C. A. 7), 188 F. 292, 298; Hutchinson vs. Phil. &
G. S. S. Co. (1914), 216 F. 795, 798-9.
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THE
AMERICAN LAW REVIEW
MARCH- APRIL. 1927.
INTERVENTION IN FEDERAL COURTS.*
PROCEDURE.
Procedure in the sense of the appropriate kind of inter-
vention has been discussed in the topic Kinds, secs. 3, 7,
and crops up here and there under other topics. It will
not be looked at from that angle here.
I. PETITION AND LEAVE.
Sec. 36. The name petition is sometimes used to desig-
nate the application to the court for leave to intervene; it is
sometimes applied to the pleading that sets forth the peti-
tioner's interest and claim and prayer for relief. Some-
times the two prayers are found in one document, or the
only pleading is the prayer for relief, or there is merely an
oral motion. The significance of the term each time it is
used must be gathered from the context.
"Certain steps in the procedure are, however, reasonably
well fixed. A petition of intervention may be filed only by
leave of court. Whether permission to file the petition
should or should not be granted is to be determined, I take
it, from the allegations of the petition itself considered in
the light of the other pleadings and proceedings in the
cause.
* The first part of this article appeared in the January-February issue of
the REvIEw.
VOL. LXI. (161)
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"The mere filing of the petition pursuant to leave does
not make the petitioner a party to the cause. The original
parties are entitled to be heard on the question of his ad-
mission, and, upon filing his petition, he should obtain an
order of notice to them and have the petition set down for
a hearing. The hearing upon the petition should be fol-
lowed by an order denying or granting leave to the peti-
tioner to intervene and become a party. A form of an
order granting such leave is set out in Ex parte Jordan,
94 U. S. 248, 24 L. Ed. 123. After the petitioner becomes a
party, he stands to all intents and purposes as if he had
been an original party to the suit. * * *
"Equity rule 37 (198 Fed. xxvii, 115 C. C. A. xxvii) pro-
vides in part:
'Any one claiming an interest in the litigation may
at any time be permitted to assert his right by inter-
vention. * * *' (Italics ours.)
"The language of the rule, and, as I think, the sounder
reason makes it necessary to conclude that at a hearing up-
on a petition for intervention the well-pleaded allegations
of the petition must be taken as true, and evidence aliunde
may not be heard."' It was held in this case that the peti-
tion was too indefinite; it was therefore denied. Later an
amended petition was filed with the allegation of definite
facts to show the claim, and leave to intervene as a def end-
ant was granted, and the intervening petition, on motion of
the intervener, was accepted as his answer.
2
"While a petition of intervention need not be as formal
as a bill of complaint, and should perhaps be distinguished
for brevity, it yet should exhibit all the material facts which
are relied upon for the specific relief invoked, embodying,
either by recital or by reference, so much of the record in
the original suit in which the petition is filed as is essential
Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 280 F. 934, 937.
'Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 283 F. 681, 683.
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INTERVENTION IN FEDERAL COURTS
to show a right to the particular relief demanded by the pe-
tition. Where, subsequently to the filing of the petition of
intervention, proceedings have been had under the original
bill which would fortify the right of the intervening peti-
tioner, either to the particular relief demanded or to some
other relief, the matter should be incorporated into the pe-
tition of intervention by amendment. "3 Facts, not conclu-
sions of law, must be pleaded in the petition.
4
The petition
may contain a statement of the petitioner's view of the case,
and pray, in addition to intervention, for the final relief de-
sired.
5
The petition to intervene as defendant should con-
tain a complete answer, both to save delay and to show the
court that the petitioner has a substantial defense. Though
not complete, the allegations of the petition will be received
as an answer for this purpose."
Joinder of the parties in a petition to intervene is subject
to the general rules of pleading.
7
Also, there is no more
right, or reason, for filing a second petition to intervene
when one has been denied than for filing another original
bill when one has been dismissed for lack of merit on its
face. If there is ground for amendment, the amendment
should be made before the final order. If the ground is not
known until afterwards, an application to vacate the order
or a petition for review should be made. That order must
be got rid of either by proceedings in the trial court, or an
appeal.
8
The designation of the petition is apparently unim-
portant. It has been called a crossbill, but treated by the
appellate court as an intervening petition.
9
It may appear
'Empire Dist. Co. vs. McNulta (1897 C. C. A. 7), 77 F. 700, 703.
'Clarke vs. Eureka County Bank (1902), 116 F. 534, 536.
'Perry vs. Godbe (1897), 82 F. 141, 143.
, Toler vs. E. Tenn. etc. Ry. (1894), 67 F. 168, 175. Lurton, J. later Jus-
tice.
' Gravenberg vs. Laws (1900 C. C. A. 5), 100 F. 1, 7.
8 U. S. Tr. Co. vs. Chic. Term. etc. Co. (1911 C. C. A. 7), 188 F. 292, 299-
300.
'French vs. Gapen (1881), 105 U. S. 509, 518-9, 524-5. Cf. Gregory vs.
Pike (1895, C. C. A. 1), 67 F. 837, 846.
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as an independent bill, but be treated by the court as de-
pendent.
10
Sec. 37. Leave to intervene gives no suggestion of ap-
proval of the claim." A formal order granting leave is not
always necessary ;12 especially if the person interested has
a right to intervene.
13
Persons who become interested in
the course of the proceedings are often called quasi parties
even before they petition the court for an especial relief.
They apparently do not need an order of leave. (See above
Kinds, seventh class, sec. 3.) The suggestion to intervene
may come from the court. For example, the court refused
to allow its receiver to be sued in another court for the pos-
session of the res, but offered leave of intervention.
14
There is a rather curious remark in Field vs. K. C. Ref. Co.
(1924, C. C. A. 8), 296 F. 800, 806. "Nor did the order, in
contravention of the doctrine of Adler vs. Seaman, et al
(C. C. A.) 266 Fed. 828, compel appellant to intervene."
This is susceptible of misunderstanding unless the actual
decision in each case is held in mind. In the Adler case it
was held that under the circumstances of the Seaman suit
below, a creditor was not "compelled to intervene in that
suit or go remediless while that suit pended. In the
Field suit it is held that in the instant circumstances the
claimant is "compelled to intervene" or to go remediless
while that suit pends. Whether leave should be granted or
not is a matter of substance rather than of form; if there
are sufficient facts before the court to make certain that the
relief sought should not be granted, leave should be denied,
though the form of the petition is correct and shows vital
interest in the litigation.
5
So far as leave is a matter of
1 See above Kinds, sec. 4.
UN. Am. Co. vs. St. L. & S. F. R. (1922), 288 F. 612, 617.
Ex parte Cutting (1876), 94 U. S. 14, 20-1; Perry vs. Godbe (1897), 82
F. 141, 143.
'Minot vs. Mastin (1899 C. C. A. 8), 95 F. 734, 739.
"'Field vs. K. C. Refining Co. (1924 C. C. A. 8), 296 F. 800, 804. See also
McDermott vs. Hayes (1912 C. C. A. 1), 197 F. 129, 131.
' K. C. Term. Ry. vs. Cent. Union Tr. Co. (1923 C. C. A. 8), 294 F. 32, 36.
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INTERVENTION IN FEDERAL COURTS
substance it belongs to the topic of ground for interven-
tion, and chapter 1, secs. 8-35, is devoted to the question
under what circumstances leave should be granted.
II. NOTICE AND OBJECTIONS.
Sec. 38. Apparently it is better practice to notify the
parties to the main suit of the hearing on the petition to in-
tervene, but want of notice is not fatal.
10
If leave has been
granted ex parte the order will not be set aside in a case
where the intervention would have been granted over the
opposition of the parties.
17
Objection should be made
when the petition is presented.
8
But also held that even
after leave has been granted parties may move to vacate
the order."
9
And objections to the sufficiency of the peti-
tion may be taken at any time if it does not state any fact
that entitles the petitioner to intervene.
20
The apparent
discrepancy in the cases may be referable to the different
circumstances; the statements in each case probably were
suitable to that case. It is not necessary to notify the
parties to the main suit of the filing of a dependent suit, or
of a claim before a master. If they are made parties to the
dependent suit, they will be served with process as such;
and in case of hearings before a master they should be no-
tified whenever their interests are involved.
M. TIME.
Sec. 39. The best time, or the possible time, for interven-
tion depends upon the nature of the relief desired and the
nature of the main suit and the relations of the petitioners
to the parties and to the subject of litigation. Naturally, a
petitioner must apply before trial if he wishes to make a de-
"0 Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325.
" Percy Summer Club vs. Astle (1901), 110 F. 486, 487.
"French vs. Gapen (1881), 105 U. S. 509, 525; Perry vs. Godbe (1897),
82 F. 141, 143.
'Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325.
2Clarke vs. Eukeka County Bank (1902) 116 F. 534, 537.
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fense.
2 1
He may intervene before his claim has matured.
22
Persons who were interested in the fund before the com-
mencement of the main suit or who became interested dur-
ing the progress of the suit or by the effect of the final de-
cree have frequently been allowed to intervene after decree,
and even after sale.
23
For the effect of laches, and what
constitutes laches, see above, Grounds, sec. 34.
IV. IN APPELLATE COURT.
Sec. 40. It is a rule that there may be no intervention in
an appellate court. Chief Justice Marshall put it in this
form, " The only parties, the court can know are those in the
record."
24
However, the petitioner has sometimes obtain-
ed some relief. At his request the mandate was made more
explicit.
23
In a complicated bankruptcy proceeding, while
the petition to intervene presented to the court of appeals
was denied, because it raised new points of law, some
measure of relief was granted the petitioners.
26
When a
brief was presented to a court of appeals by a self-styled
intervener, the petitioner was denied the status of a party,
and all new matter in his brief disregarded, but as to issues
in the record he was treated as an amicus curiae.
27
In spite
of intimation that one not a party in the trial court may not
intervene in the Supreme Court, such a petitioner was
heard enough to decide that his claim was not meritorious.
2
" Seligman vs. City of Santa Rosa (1897), 81 F. 524, 525-6.
"Barnes vs. Alexander (1914), 232 U. S. 117, 123.
"Ex parte Jordan (1876), 94U. S. 248, 252; French vs. Gapen (1881), 105
U. S. 509, 525; Julian vs. Central Tr. Co. (1904), 193 U. S. 93, 113-4; Phipps
vs. Chic., R. I. & P. Ry. (1922 C. C. A. 8), 284 F. 945, 955; St. L.-San Franc.
Ry. vs. MeElvain (1918), 253 F. 123; Cincinnati, I. & W. R. vs. Indianapolis
Union Ry. (1922 C. C. A. 6), 279 F. 356, 361 et seq.; Kinds above, seventh
class.
"Harrison vs. Nixon (1835), 9 Pet. 483, 484. Other authorities, The Wil-
liam Bagaley (1866), 5 Wall. 377, 411; Veitia vs. Fortuna Estates (1917
C. C. A. 1), 240 F. 256, 262; Wenborne-Karpen Dryer Co. vs. Cutter Dry Kiln
Co. (1923 C. C. A. 2), 292 F. 861, 862.
"U. S. vs. St. Louis Terminal (1915), 236 U. S. 194, 199.
"Scrugham vs. Shoup (1919 C. C. A. 3), 256 F. 325, 327.
"Veitia vs. Fortuna Estates (1917 C. C. A. 1), 240 F. 256, 262; also The
Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 22.
"U. S. vs. Patterson (1853), 15 How. 10, 12-3.
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INTERVENTION IN FEDERAL COURTS
V. APPEAL FROM ORDER GRANTING OR DENYING LEAVE.
Sec. 41. In the federal courts one of the requisites of an
appealable order is that it shall be final, unless there is a
statute allowing the appeal from other than final decrees.
While "final order" is, perhaps, undefinable, it is, perhaps,
agreed that a final order determines a right, at least for the
time. Reasonably therefore, there could be no appeal from
an order granting leave to intervene. Such order does not
determine any right. However, when the case gets into the
appellate court all proceedings, interlocutory as well as
final, to which seasonable objection was made may be re-
viewed, and improvident orders, including leave to inter-
vene, may be reversed.
29
Appeal from an order refusing leave to intervene is, gen-
erally, subject to the same rules as other appeals. It must
be brought within the time fixed for appeal.
80
It may be
taken only to the Supreme Court when the jurisdiction of the
trial court is based upon constitutional grounds alone,
81
or
when the trial court denies the petition on the ground that
it has no federal jurisdiction to allow it.32 And the order
must be final. It is final if the petitioner is left remediless
thereby. If he has other means of enforcing his claim the
order is not final, and is in the discretion of the trial court.
The cases that deal with this distinction are numerous and
explicit.
88
Peculiar circumstances may induce an appellate
court to receive an appeal though the appellant was not
I Gregory vs. Pike (1895 C. C. A. 1), 67 F. 837, 844 et seq.; Potter vs. Beal
(1892 C. C. A. 1), 50 F. 860, 864.
30 Taylor vs. Logan Tr. Co. (1923 C. C. A. 8), 289 1. 51, 53.
"City of N. Y. vs. Consol. Gas. Co. (1920), 253 U. S. 219.
32 Hoffman vs. McClelland (1924), 264 U. S. 552, 557-8.
"Here are a few. Credits Commutation Co. vs. U. S. (1900), 177 U. S.
311, 315; U. S. Tr. Co. vs. Chic. Term. etc., (1911 C. C. A. 7), 188 F. 292, 296;
Richfield Oil Co. vs. Western Mach. Co. (1922 C. C. A. 9), 279 F. 852, 855;
Minot vs. Mastin (1899 C. C. A. 8), 95 F. 734, 739; Vicksburg, S. & P. Ry. vs.
Schaff (1925 C. C. A. 5), 5 F. (2d) 610; McKee vs. Brazell (1922 C. C. A. 8),
284 F. 554; U. S. vs. N. W. Dev. Co. (1913 C. C. A. 9), 203 F. 960, 962; W. U.
Tel Co. vs. U. S. & M. Tr. Co. (1915 C. C. A. 8), 221 F. 545, 551-2; Ill. Steel
Co. vs. Ramsey (1910 C. C. A. 8), 176 F. 853, 863; Bacher, Hinde (1925
C. C. A. 6), 6 F. (2d) 508, 513.
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otherwise remediless, and to give relief in order to have de-
lay and circuity of action.
34
If the petitioner thinks the
order final and seeks appeal, but the court considers the
order interlocutory and refuses to allow appeal, the peti-
tioner's remedy is mandamus from the appellate court to
compel the trial court to allow the appeal.
8
5 Therefore
there is convincing argument that an appeal from such
order should always be allowed. "This court has held that
there are two kinds of interventions. To the one class be-
long those cases in which the court or chancellor to whom
the application is made is not bound to permit a third party
to intervene, and load the case with collateral issues, and
in which the allowance of an intervention is entirely dis-
cretionary with the chancellor. To the other class of cases
belong those in which the right to intervene is absolute,
resting, as it does, upon the grounds of necessity, and the
inability of the intervener to obtain such relief as he is en-
titled to by any other means than an intervention. Minot
vs. Mastin, 37 C. C. A. 234, 95 Fed. 734, 739; Credits Com-
mutation Co. vs. U. S. 34 C. C. A. 12, 91 Fed. 570, 62 U. S.
App. 728, 733. When a chancellor denies leave to intervene
in a case belonging to the first class, no appeal lies because
the action of the chancellor is discretionary, and because
the chancellor's action in denying leave to intervene is not
a final adjudication upon the intervener's rights. But,
when a chancellor denies the right to intervene in a case
belonging to the second class, an appeal, lies, because the
chancellor's action was not discretionary, and because such
action was a final adjudication, in that it denied him relief
which he could obtain only be an intervention in the pending
cause. Now, in view of the fact that there are two species
of intervening complaints, and that it may be sometimes
difficult to determine to which class the intervention be-
longs, we think that the correct practice for the chancellor,
" Elder vs. Western Min. Co. (1922 C. C. A. 8), 280 F. 569, 578.
"Richfield Oil Co. vs. Sawtelle (1921 C. C. A. 9), 279 F. 851.
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INTERVENTION IN FEDERAL COURTS
after refusing leave to intervene, is to grant an appeal as a
matter of course, if the intervener prays for an appeal.
When the record is removed to the appellate court, it can
then be determined by that tribunal whether the action of
the lower court was purely discretionary, and its judgment
not final, or whether the intervener was entitled to assert
his rights by an intervention. Such course of procedure on
the part of the chancellor would seem to be necessary, be-
cause, if a mistake is made by the lower court as to the char-
acter of the intervention, and the chancellor refuses an ap-
peal, the intervener is entirely without a remedy.
6
In Re Metropolitan Ry. Receivership (1908), 208 U. S.
90, there is a curious application for mandamus. Petition-
ers to intervene supposed that they had no right to an ap-
peal from the order denying their petition, so they applied
to the Supreme Court for mandamus to the trial court to en-
force their admission. The Supreme Court declines to
pass on the question of procedure, but assures them that
they have no right to intervene. Surely if the order dis-
missing their petition in the trial court was discretionary,
so as to deprive them of right of appeal, there was no room
for mandamus to require the court to admit them. Here is
another interesting situation. Suppose the appellate court
decides that the petitioner has no interest in the litigation;
it has been held by the Supreme Court that the order deny-
ing intervention was not final and the appeal should be dis-
missed ;37 and by a circuit court of appeals that the trial
court had no discretion, but should dismiss the petition as a
matter of law.
3 8
When the petitioner's interests are com-
pletely taken care of by parties already before the court,
permission to intervene is within the trial court's discre-
tion. That is, presumably, he is not remediless if some one
else is seeking a remedy for him.A
9
The ground usually
" U. S. vs. Philips, Judge (1901 C. C. A. 8), 107 Fed. 824.
"City of N. Y. vs. Consol. Gas Co. (1920), 253 U. S. 219.
Glass vs. Woodman (1915 C. C. A. 8), 223 F. 621, 623.
"City of N. Y. vs. N. Y. Tel. etc., (1923), 261 U. S. 312, 316; Ex parte Cut-
ting (1876), 94 U. S. 14, 21.
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given for holding that the petitioner has a right to inter-
vene is the court's possession of a res on which he asserts a
claim; but that that is not the only ground is abundantly
shown above in Grounds, under res, sec. 10.
VI. LEGAL OR EQUITABLE.
Sec. 42. If the original suit is in equity all proceedings
are in equity, even the prosecution of damages for a tort;
the intervener has no right to a jury; the answer must be in
accordance with equity rules and practice.
40
Review is by
appeal only, whether from an order denying leave to inter-
vene,
41
or from a decree in the intervention proceedings.
42
But in an action at law an intervention to support an equit-
able claim is equitable, and review is by appeal.
48
But the
question was so doubtful in the mind of the court below that
it directed, "If an equitable appeal is taken in favor of any
party aggrieved, and such appeal shall be held not the rem-
edy, on the ground that it should have been by writ of error,
then it is understood that the right of exception shall not
have been prejudiced by reason of the lapse of time."
' 44
And it has been held that review in such case was by writ of
error.
45
The difference arises from the difference between.
equity and law. If equity assumes jurisdiction it does com-
plete justice, enforces legal rights, applies legal remedies.
Law does not recognize equitable rights, and has no power
to apply equitable remedies. Now, however, by modern
laxity law courts are led to admit intervention, but the court
is obliged to use chancery powers to give equitable relief;
then the procedure is, naturally, of equitable character.
Of course, when the main action and the intervention are
both legal review is by writ of error.
4 6
I Boston & M. R. vs. Sullivan (1921 C. C. A. 1), 275 F. 890, 892; Mer. Tr.
Co. vs. Pittsburgh & W. Ry. (1902 C. C. A. 3), 115 F. 475, 478.
41 Harry Bros. & Yaryan Nay. Stores Co. (1915 C. C. A. 5), 219 F. 884.
" Nashville Ry. etc. vs. Bunn (1909 C. C. A. 6), 168 F. 862.
"M'Dermott vs. Hayes (1912 C. C. A. 1), 197 F. 129, 135-6.
"McDermott vs. Hayes (1912), 194 F. 902, 903.
"U. S. vs. N. W. Dev. Co. (1913 C. C. A. 9), 203 F. 960, 961.
"Barrett vs. Commercial Credit Co. (1924, Ct. of App. D. C.), 296 F. 996.
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INTERVENTION IN FEDERAL COURTS
VII. APPEAL.
See. 43. Questions of appeal that seem more important
in other connections are touched upon elsewhere, as in the
fifth topic of this chapter on appeal from an order refusing
intervention, above see. 41, and in the topic on the character
of procedure, whether legal or equitable, above see. 42, and
below in the status and rights of interveners, see. . It is
often stated that an intervener has come into the suit, for
the purpose of appealing; even so, he must first try his
claim before the trial court.
47
If the trial court refuses to
allow his appeal, his remedy is mandamus from the appel-
late court.
48
Sometimes in the appellate court the case ap-
pears under the name of the intervener.
49
Certiorari to
the Supreme Court is as available to an intervener as to an
original party.
50
Jurisdiction of an intervention or of a dependent bill is
the jurisdiction of the main suit. Therefore it is generally
held that when the decision of the circuit court of appeals
would be final in the main suit, it is final in an ancillary suit,
or on a matter raised by an intervener; so that in such case
an intervener may not appeal to the Supreme Court; for
example, when jurisdiction in the main suit rests upon di-
versity of citizenship alone.
5
' And this is true even if the
ancillary bill or petition in intervention raises a federal
question ;52 but there is apparently some conflict on this
point.
13
For the same reason when the original action
arose under a federal law there was an appeal from the cir-
cuit court of appeals to the Supreme Court.
54
Capawana vs. U. S. (1923 C. C. A. 3), 294 F. 153, 157.
SEx parte Jordan (1876), 94 U. S. 248; In re Mich. Cent. R. (1903 C. C.
A. 6), 124 F. 727, 730, Judge, later Justice, Lurton.
4
Drascovich vs. Eq. Tr. Co. (1925 C. C. A. 9), 3 F. (2d) 724.
St. L., K. C. etc. vs. W. R. (1910), 217 U. S. 247, 251.
Carey vs. Houston & T. Ry. (1896), 161 U. S. 115, 133.
02 Shulthis vs. McDougal (1912) 225 U. S. 561, 568, leading case; Begg vs.
City of N. Y. (1923), 262 U. S. 196, great array of authorities at page 199.
"Ohio R. Com. vs. Worthington (1912), 225 U. S. 101, 104.
Eiehel vs. U. S. Fidelity etc., Co. (1917), 245 U. S. 102.
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There seems some difficulty in the following situation.
An ancillary suit is filed to attack the jurisdiction of the
original suit. In Carey vs. Houston & T. C. Ry. (1893),
150 U. S. 170, 180, it is held that an appeal from a decision
dismissing the ancillary bill does not lie to the Supreme
Court, on the ground that the statute gave an appeal to the
Supreme Court on a question of jurisdiction of that very
suit and not of another suit. In Carey vs. Houston & T. C.
Ry. (1896), 161 U. S. 115, 126, the court approved its con-
clusion in the earlier case, but gave as one ground that what
the ancillary bill really attacked was not the federal juris-
diction of the main suit, but the propriety of the decree.
In Ky. State Bd. of Control etc., vs. Lewis (1910, C. C. A.
6), 176 F. 556, it is held that when the only question for re-
view is the jurisdiction of the main suit, appeal lies to the
Supreme Court alone. Now, fortunately, if an appellant
chooses the wrong tribunal *his cause is not dismissed, but
he is set upon the right road.
VIII. WANT OF JURISDICTION OF THE MAIN SUIT.
See. 44. If the appellate court holds that the trial court
was without jurisdiction of the main suit the main suit must
be dismissed and all its dependencies. Circumstances, and
perhaps individual judicial discretion, must determine the
proceedings between the handing down of the mandate and
the dismissal. For example, a court had possession of a
fund by its trustee in bankruptcy when the appellate court
decided that the lower court had no jurisdiction to take the
fund. Persons interested in the fund were allowed to in-
tervene to ask for a certain form of the restoration order,
and sue out a writ of error to obtain the desired form.
5
Also, when a court had been managing a res by a receiver
before the mandate came down, persons interested in the
property were allowed to intervene and their rights cared
6 5
Ex parte Nat. Bank of Chic. (1907), 207 U. S. 61, 65.
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INTERVENTION IN FEDERAL COURTS
for before the receiver was discharged and the bill dismiss-
ed. For, "It is quite clear that the determination of the
question of the right to intervene depends not at all upon
the validity of the original seizure or continued possession
of the property by the court, but upon the fact of the actual
holding in possession. "' On the other hand, it has been
held that on the coming down of the mandate the case is to
be dismissed; the interventions fail, and the interests of in-
terveners may not be considered; no interveners may be ad-
mitted thereafter; such intervention would violate Equity
Rule 37, that intervention should be "in recognition of the
propriety of the main proceeding.
'
5
7
Fortunately for
some interveners, not all courts, supreme or lower, are such
sticklers for Rule 37. Lack of equity jurisdiction to ap-
point a receiver in the original bill is not cured by the in-
tervention of a lien creditor, at least if the intervention oc-
curs two months after entry of the decree.
5 8
IX. DEPENDENT BILLS.
Sec. 45. Judge, now Mr. Chief Justice Taft, in Conti-
nental Trust Co. vs. Toledo, St. L. etc., R. (1897), 82 F.
642, referred to so many points of interest in connection
with dependent bills that it does not seem amiss to quote at
length the passage in which he considered (a) the jurisdic-
tion in the main cause, (b) the possession of the res, (c) the
right to file the dependent bill, (d) the unimportance of its
being in form independent, (e) the immateriality of the
want of diversity of citizenship, (f) relation to the main
cause, (g) parties to the two suits, (h) consolidation. At
page 645 he said, "The motion to dismiss the foreclosure
bill must be denied. It is conceded that the court had juris-
diction of the creditorsI bill filed by Stout and Purdy, and
that at the time when the trustees under the mortgage filed
El. Supply Co. vs. Put-in-Bay Waterworks (1898), 84 F. 740, 742-3.
' Brictson Mfg. Co. vs. Woodrough (1922 C. C. A. 8), 284 F. 484.
Pusey & Jones Co. vs. Hanssen (1922), 261 U. S. 491, 501.
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their foreclosure bill, all the property of the railroad cover-
ed by the mortgage was in the possession of this court, by
its receiver. The trustees could obtain no substantial re-
lief by a foreclosure of the mortgage and a sale of the road
in a state court, so long as this court had possession of it.
To avoid injustice, this court was obliged, therefore, to ex-
ercise a jurisdiction ancillary in its nature, for the benefit of
those otherwise injured by its possession of the property,
and had power to entertain a foreclosure bill to which the
parties complainant and defendant were not of such diverse
citizenship as to give the court independent jurisdiction.
The Circuit Court of Appeals of this circuit has considered
at length this kind of jurisdiction, and the basis upon which
it rests, and the authorities sustaining it, in the case of
Compton vs. R. R. Co., 31 U. S. App. 485, 522, 529, 15 C. C.
A. 397, 68 Fed. 263. The foreclosure bill stated the fact
that the railroad, the mortgage on which it was filed to fore-
close, was in the hands of this court. That was the juris-
dictional fact, and made immaterial the circumstances that
one complainant was a citizen of New York and the other
of Indiana and that among the defendants were citizens of
Indiana and New York. It can not be of importance that
the bill was apparently filed as an independent bill. If in
fact the only way of maintaining jurisdiction of it is as a
dependent bill, ancillary to the creditors' actions, it is the
duty of the court so to treat it, provided that it appear, as
it does, that it can be maintained as such. But care must be
taken not to give too much effect to the dependence of one
suit on the other for jurisdictional purposes. Such depend-
ence does not throw bofsuits into hotchpot, and dispense
with the ordinary rules of pleading and practice as to par-
ties proper and necessary to each cause of action. Because
the res acquired under the bill gives ancillary jurisdiction to
entertain a dependent bill seeking relief in respect of the res
parties to the original bill are not thereby made parties to
174
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INTERVENTION IN FEDERAL COURTS
the dependent bill. The parties to the original bill have no
more right to intervene in the dependent cause than if the
court had independent jurisdiction thereof. Hence the
rule as to who may appear to a foreclosure bill and file
answers is the same here as if the bill had in fact been an
independent bill. In other words, the relation between the
two suits is principal and ancillary only so far as that, with-
out possession of the res in the former suit, the court would
have no jurisdiction of the latter; but, having thus acquired
and thus maintaining its jurisdiction of the second suit, the
court proceeds in it without further regard to the pleading
or course of the principal action. In this view of their re-
lation to each other, there can not be the slightest objection
to consolidating the two suits, if they are otherwise of such
a character as to permit it. I shall not stop to discuss the
power of the court in this regard. It suffices to say that the
duty of the court to consolidate causes, where no one will be
injured thereby, is plainly suggested by the federal statute
on the subject (Rev. St. Sec. 921), and one of the commonest
instances of the exercise of this power is in the consolida-
tion of a creditors' bill and foreclosure bill against the same
insolvent railroad corporation." To the same effect on
many of these points is Minot vs. Mastin (1899 C. C. A. 8),
95 F. 734, 739. And Carey vs. H. & T. Ry. (1896) 161 U. S.
115, 127 et seq, contains a discussion of dependent bills,
what they are and some of their limitations.
In an action at law the proper procedure to protect an
equitable right is an ancillary bill on the equity side of the
court.
59
In older equity practice this would be an inde-
pendent bill, and often now is dependent only because of the
limitations on the jurisdiction of federal courts. When a
petition to intervene has been denied and no appeal was
taken, that order is the law of the case, and the petitioner
'Freeman vs. Howe (1860), 24 How. 450, 456; Eichel vs. U. S. Fidelity
etc., Co. (1917), 245 U. S. 102; McDermott vs. Hayes (1912 C. C. A. 1), 197
F. 129, 135-136.
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may not later bring an ancillary suit to enjoin the execution
of the judgment!" How close is the procedural connection
between the main and dependent suits is perhaps not de-
finable; for example in appeal, see above, sec. 43, second
paragraph.
X. INFORMAL.
Sec. 46. Intervention is equitable in its origin and in its
aim. Hence, would-be interveners rarely lose a right or a
privilege merely through technicality of procedure. The
flexibility of procedure has frequently been mentioned un-
der other subjects, particularly under topics 1 and 9 of this
chapter, and in the preliminary topic on Kinds. Little need
be added here. In expressing approval of the admission
of interveners as plaintiffs, the Supreme Court said,
"* * * it would be merely a matter of form whether
the new parties should come in as co-complainants, or be-
fore a master under a decree ordering a reference to prove
the claims of all persons entitled to the benefit of the de-
cree. "62 In one case the intervener is called a party, and
his intervention is also called "a properly related ancillary
suit.
'
64
xI. MISCELLANEOUS.
See. 47. Ancillary receivership. Intervention is proper
as to matters dealt with in the ancillary jurisdiction.
5
Election of remedies. Although a petitioner to intervene
had a choice of remedies, it was his legal right to make the
choice himself and to choose the remedy that required in-
tervention.
66
I Minn. Co. vs. St. Paul Co. (1864), 2 Wall. 609, 633; Krippendorf vs.
Hyde (1884), 110 U. S. 276, 284 et seq.
" M'Donald vs. Seligman (1897), 81 F. 753, 759.
' Stewart vs. Dunham (1885), 115 U. S. 61, 64.
Equitable Trust Co. vs. Port Wentworth Corp. (1922), 281 F. 883, 884-5.
"In re Mich. Cent. R. (1903 C. C. A. 6), 124 F. 727, 730.
"King vs. Hiawatha Silk Mills (1924 C. C. A. 2), 296 F. 907, 909; Fulton
Nat. Bank vs. Hosier (1923 C. C. A. 5), 295 F. 611, 612. Reserved on another
ground, 267 U. S. 276.
" U. S. Tr. Co. vs. Chic. Term. T. R. (1911 C. C. A. 7), 188 F. 292, 296.
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INTERVENTION IN FEDERAL COURTS
Evidence. The intervener may rely upon the insuffi-
ciency of plaintiff's evidence, and his failure to offer testi-
mony is not a ground for dismissing his petition.
67
STATUS AND RIGHTS AND OBLIGATIONS.
I. PARTY.
Sec. 48. Since there are many kinds of intervention, the
term intervener has a broad application. The word party,
while more definite, is not confined to a dominus litis. The
frequent expression "An intervener is a party" is, there-
fore, doubly equivocal. Probably most persons would
agree that an amicus curiae and the mere maker of a sug-
gestion or motion are not parties. And yet they are, some-
times, subject to the orders of the court, and the claims that
they represent are considered.
68
Some cases declare that
no intervener can have one of the valuable and continuing
rights of a party, the right to call in question the jurisdic-
tion of the court over the original suit. And yet they often
do
it.69
In view of these ambiguities, the cases are perhaps more
intelligible and more helpful if they are read not as giving
verbal definitions of the status of interveners, but rather as
prescribing in each particular set of circumstances the
rights and duties of the instant intruder into the existing
litigation. Justice Lurton, while circuit judge, gave a clear
and comprehensive statement of an intervener's rights,
with as much definiteness as the subject allows. "In re-
spect of any matter within the scope of the intervention, the
petitioner had thereby become an actor, with liberty to pre-
sent its contention and obtain an adjudication, and a conse-
quent right to have whatever was done reviewed by this
" Perry vs. Godbe (1897), 82 F. 141, 143.
'Meek vs. Centre County Banking Co. (1924), 264 U. S. 499, 504; The
Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 22; Veitia vs. Fortuma Estates (1917
C. C. A. 1), 240 F. 256, 262.
"See below Subordination, p.
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court if the matter was one in its nature appealable."
' 70
There remains in each case the no inconsiderable task of de-
termining what is "the scope of the intervention." Thus
the intervener may become the dominus litis, or an equal of
the original parties, or an actor in a limited area of the
field of litigation, or a claimant on a fund, or a mere amicus.
ILLUSTRATIONS.
See. 49. More active than some original party. In a suit
to quiet title, an intervener claiming and proving himself
to be the principal and that the original defendant was only
the agent becomes the real defendant and domins litis.71
So in an action of ejectment against a tenant the interven-
ing landlord becomes the dominus litis.72 The American
Express Company brought suit against the United States
to enjoin the enforcement of a joint rate of the Interstate
Commerce Commission. The real parties in interest, the
Commission, the Southwestern Express Company, the
Southern Traffic League and other shippers' organizations
intervened and conducted the defense.
73
Certain coal op-
erators sued several railroad companies, the United States
and the Interstate Commerce Commission to enjoin a car
distribution order. Other coal operators favored by the
order intervened to defend the order. They, not the rail-
roads, appealed.
74
The intervening owner of a libeled ves-
sel of course becomes the active defendant.
See. 50. On the same plane as original parties. A class
suit, that is, one in which the plaintiff sues for himself and
for all others in like situation, opens the door to the other
members of the class to intervene as plaintiffs and become
' In re Mich. Cent. R. Co. (1903 C. C. A. 6), 124 F. 727, 730.
X Boston Acme etc. vs. Salina Canyon Co. (1925 C. C. A. 8), 3 F. (2d) 729,
734.
"Hardenberg vs. Ray, (1894), 151 U. S. 112, 118-119; Phelps vs. Oaks
(1886), 117 U. S. 236, 240-241.
11U. S. vs. Am. Ry. Express Co. (1924) 265 U. S. 425, 430; New England
Division Case (1923), 261 U. S. 184, 188.
"U. S. vs. New River Co. (1924), 265 U. S. 533.
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INTERVENTION IN FEDERAL COURTS 179
parties just as if originally joined.
7 5
Trustees and bond-
holders may intervene in a creditor's suit, as well as gen-
eral creditors.
76
Another common case is that of a stock-
holder or bondholder of a defendant corporation who may
feel that his interests are not being adequately looked after.
Such would-be interveners are often spoken of as already
quasi parties (a loosely used term), or as persons already
represented. Such quasi parties may be admitted over
plaintiff's objection.
7 7
In Ex parte Jordan (1876), 94 U. S.
248, 251-2, a foreclosure suit, the bill had been taken as con-
fessed. Thereafter certain bondholders asked to be al-
lowed to intervene either in the prosecution or in the de-
fense in protection of their interests. They were admitted
as defendants as if named in the original bill, without pre-
judice to previous orders. But the interveners were per-
mitted, if they wished, to ask for review of previous orders.
Whether they asked any review does not appear. However,
they did ask to appeal from the final decree and from some
administrative orders. The Supreme Court called them
defendants, decreed them mandamus to the trial court to
allow the appeal from the final orders, and reserved the
question of appeal from the orders made before their en-
trance into the case.
And it is held in another case,
7
"In view of the foregoing
conclusion [a matter largely of procedure], and of the fact
that the petition alleges that the petitioner is a stockholder
of the defendant Oil Company, it becomes necessary now to
consider under what circumstances a stockholder of a de-
fendant corporation may be permitted to intervene as a
party defendant. It is a well-established rule, to which
,"McAtamney vs. Commonwealth Hotel etc., Corp. (1924), 296 F. 500, 503.
" Pa. Co. etc. vs. Phila. Co. (1920 C. C. A. 3), 266 F. 1, 5; Atlantic Tr. Co.
vs. Dana (1903 C. C. A. 8), 128 F. 209, 219.
" Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 280 F. 934, 939.
"Atlantic Ref. Co. vs. Port Lobos Pet. Corp. (1922), 280 F. 934, 939.
Leave was denied because the petition alleged conclusions, not facts. On the
filing of an amended petition, sufficiently alleging facts, leave was granted,
283 F. 681, 683.
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there are few exceptions, that a stranger to a suit will not
be permitted, on his own application and over the objection
of the plaintiff, to become a defendant. Ann. Cas. 1913D
1035; Shields vs. Barrow, 17 How. 129, 146, 15 L. Ed. 158;
Anderson vs. Jacksonville P. & M. R. Co., 1 Fed. Cas. 842,
No. 358. But that rule is not absolute, where the person
who seeks to be made a party defendant belongs to the class
known as quasi parties; that is, 'those who are already rep-
resented in the suit, or who come within the compass of the
proceedings pendente lite,' such as stockholders in a cor-
poration. Such persons are recognized as having a status
in the suit by representation, and the court may, upon
proper showing, make them parties defendant, notwith-
standing objections of the plaintiff, Ann. Cas. 1913D 1036.
"Many reasons, such as the eppearance of fraud, collu-
sion, or bad faith on the part of the directors of the cor-
poration, or where they stand in a dual relation, which pre-
vents an unprejudiced exercise of judgment, or where a cor-
poration thereatens by collusion or otherwise to neglect the
proper defense of a suit, have been held sufficient. United
Copper Co. vs. Amal. Copper Co., 244 U. S. 261, 263, 37 Sup.
Ct. 509, 61 L. Ed. 1119; Dickerman vs. Northern Trust Co.,
176 U. S. 181, 188, 20 Sup. Ct. 311, 44 L. Ed. 423, Ann Cas.
1913D 1036, 1037. Where it is alleged that the directors
of a defendant corporation refuse to defend a suit to the
prejudice of stockholders, a court of equity will permit one
or more stockholders to intervene and become parties de-
fendant, so as to file an answer, not for the corporation, but
on their own behalf, to protect their own interest, and that
of all other stockholders who may choose to join them in the
defense. Bronson vs. La Crosse Railroad Co., 2 Wall. 283,
302, 17 L. Ed. 725; Guarantee Trust & Safe Deposit Co. vs..
Duluth & W. R. Co. (C. C.) 70 Fed. 803."
Sec. 51. Actors in only a limited field of the litigation.
In Williams vs. Morgan (1884), 111 U. S. 684, it was held
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INTERVENTION IN FEDERAL COURTS
that bondholders had such an interest in the amount of com-
pensation to be paid to the trustee that they had a right to
intervene to contest that one point. The bondholders were
also purchasers at the judicial sale, but the court is more
positive as to their rights as bondholders than as pur-
chasers (page 698). However, the opinion goes on, pages
698-9, "We think that the petition of Williams and Thom-
son made them quasi parties in the case, and brought them
within the reason of the former cases decided by this court
in which persons incidentally interested in some branch of
a case have been allowed to intervene for the purpose of
protecting their interest, and even to come into this court,
or to be brought here on appeal, when a final decision of
their right or claim has been made by the court below. We
refer to the cases of Blossom vs. Milwaukee Railroad, 1
Wall. 655, where a purchaser at a foreclosure sale was ad-
mitted to appeal; Minnesota Company vs. St. Paul Com-
pany, 2 Wall. 609, 643, to the same effect; Hinckley vs. Gil-
man, Clinton & Springfield Railroad, 94 U. S. 467, where a
receiver was allowed to appeal from a decree against him
to pay a sum of money in the cause in which he was appoint-
ed receiver; Sage vs. Railroad Company, 96 U. S. 712,
where parties interested were allowed to appeal from an
order confirming a sale; Trustees vs. Greenough, 105 U. S.
527, where an appeal from an order for allowance of costs
and expenses to a complainant suing on behalf of a trust
fund, was sustained; and Hovey vs. McDonald, 109 U. S.
150, where an appeal was allowed to be brought against a
receiver from an order made in his favor."
79
Evidently
"quasi party" is as untechnical
as party. Evidently
also,
such quasi parties are not always required to intervene
formally; they are already in.
Sec. 52. Claimants on a fund. In Gregory vs. Pike (1895
C. C. A. 1), 67 F. 837, 846, Kemp Van Ee had been admitted
"' See also Kneeland vs. Am. Loan Co. (1890), 136 U. S. 89, 93 et seq.
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by the trial court as a defendant. The court of appeals re-
duced his status in the case to that of a claimant on the
fund in court with this explanation and distinction. "This
question of making defendants is entirely different from
that of an intervention pro interesse suo, as authorized in
Harrison vs. Nixon, 9 Pet. 483, 540; Krippendorf vs. Hyde,
ubi supra; and in Morgan L. & T. etc., Co. vs. Tex. Cont. R.
Co., ubi supra; and in the notes to Daniell, Ch. Prac. (6th
Am. ed.) 1853. There seems to be no doubt that, under the
authority of these cases, Kemp Van Ee would have been en-
titled to an intervention by summary petition after the fund
came into the registry of the court in equity, and to thus
maintain his interest. This, however, would have been an
essentially different proceeding from that of making
parties to the main controversy, and would have been of the
character of the intervention of Mr. Talbot in the case at
bar. This question has no relation to the so-called 'class
suits,' nor to the coming in of a cestui que trust or a stock-
holder, nor to cases like White vs. Hall, 1 Russ. & M. 332,
where new parties come into the accounting after a decree.
In none of these are the issues presented by the bill sub-
stantially changed by the interposition of the new parties."
Interventions of this sort are very common; they are per-
haps the typical as they are the historical form. The mul-
titudinous federal receiverships are full of them.
Sec. 53. Not a party. As appears under sec. 52 above,
claimants on a fund are often not looked upon as parties.
However, they are frequently allowed rights of a party, as
appeal, and are bound by the decrees. Also, one who peti-
tions for an investigation into a particular matter may be
admitted for that purpose only, without being considered a
party, and without the right of appeal.
80
Amici curiae and
their congeners, suggesters and movers are interveners
" Tr. Co. of Am. vs. Norfolk & S. Ry. (1909), 174 F. 269; mandamus denied
to compel allowance of appeal, Reid vs. Judges of Circ. Ct. (1909 C. C. A. 4),
175, F. 774.
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INTERVENTION IN FEDERAL COURTS
without any, or hardly any, rights or obligations of par-
ties.
81
There has been a change of attitude by the Supreme
Court towards the United States as an intervener in a
boundary dispute between two states. In Fla. vs. Ga.
(1854), 17 How. 478, 490 et seq., it was acknowledged that
the attorney general must be heard to protect the interests
of the nation, but it was considered that the United States
could not be a party. But in Okla. vs. Tex. (1922), 258
U. S. 574, the United States is apparently as active and re-
sponsible an intervening party as a private individual could
be, and is bound by the court's decrees.
II. RIGHTS AND OBLIGATIONS.
Sec. 64. Same as of a party. "It is the general rule that
one who voluntarily intervenes in a suit in equity thereby
becomes a party to the suit, is in the same situation, bound
by the same orders and decrees, and subject to the same
estoppels, as though he had been a party from the com-
mencement thereof." So spoke the Eighth Circuit Court
of Appeals in Commercial El. Supply Co. vs. Curtis (1923),
288 F. 657, 659. It was there held that the final decree was
res judicata to the intervener. So interveners four years
after sale are bound by the order requiring claims to be pre-
sented in a certain time or be barred.
82
This is, of course,
an example of laches8
3
Laches, as shown above, sec. 34,
may be the cause of denial of leave to intervene at all. The
relation of an intervener to orders entered before his inter-
vention is not entirely clear. Probably he is generally al-
lowed the rights of an original party; that is, he may ques-
tion such orders if they affect his interests and if there is no
estoppel and if his action is timely.
84
81U. S. vs. Securities Corp. Gen'l (1925 Ct. App. D. C.), 4 F. (2d) 619, 624
and see above Kinds (4, 5, 6), See. 3, p.
"N. Am. Co. vs. St. L. & S. F. R. (1922), 288 F. 612, 619.
See also Continental Tr. Co. vs. Toledo, St. L. etc., R. (1897), 82 F. 642,
646.
"Ex parte Jordan (1876), 94 U. S. 248; Blossom vs. Railroad Co. (1863),
1 Wall. 655, 656; Hinckley vs. Gilman etc., R. (1876), 94 U. S. 467; Swift vs.
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And he has a party's rights of appeal.
5
. On an appeal to
the Supreme Court the appeal was dismissed as to those
appellees, plaintiffs below, whether original or intervening,
whose judgments did not reach the jurisdictional amount
for an appeal.
86
Having been admitted as an intervener he
became a party and could appeal from an order sustaining
a demurrer to his petition for relief.
8 7
Also from orders
entered before his admission if they affect his interest.
8
He, just as an original party, must pursue statutory
methods of redress in the trial court before he may ap-
peal.
89
He may have mandamus to compel the trial court
to allow his appeal.
90
Some quasi parties may appeal with-
out formal intervention; such as sureties on appeal bonds,
receivers, claimants before a master, bidders or purchasers
at a sale.
9
1 "It is almost elementary that any one upon
whom a judgment or decree directly, immediately, and nec-
essarily operates may appeal from it so far as it affects
himself.
' ' 92
As appeared above sec. 53, interveners with
limited scope are often without right of appeal. See Pro-
cedure, topic 7, Appeal, see. 43.
Sec. 55. Miscellaneous. When an intervener has been
admitted as a party defendant he may not bring suit in an-
Black Panther etc., (1917 C. C. A. 8), 244 F. 20, 29; Williams vs. Morgan
(1884), 1].1 U. S. 684, 696, 698-9; Rice vs. Durham Water Co. (1899), 91 F.
433, 434; Capawana vs. U. S. (1923 C. C. A. 3), 294 F. 153, 157.
8
Ex parte Jordan (1876) 94 U. S. 248, 252; French vs. Gapen (1881), 105
U. S. 509, 526; Williams vs. Morgan (1884), 111 U. S. 684, 696, 698-9; Rice
vs. Durham Water Co. (1899), 91 F. 433, 434; Ill. Steel Co. vs. Ramsey (1910
C. C. A. 8), 176 F. 853, 863; W. U. Tel. Co. vs. U. S. & M. Tr. Co. (1915
C. C. A. 8), 221 F. 545, 551, 552; Commercial El. Sup. Co. vs. Curtis (1923
C. C. A. 8), 288 F. 657, 659 et seq.; Capawana vs. U. S. (1923 C. C. A. 3), 294
Fed. 153, 157.
11 Stewart vs. Dunham (1885), 115 U. S. 61, 64-5.
"111. Steel Co. vs. Ramsey (1910 C. C. A. 8), 176 F. 853, 863.
" Williams vs. Morgan (1884), 111 U. S. 684, 696, 698-9; Rice vs. Durham
Water Co. (1899), 91 F. 433, 434; Capawana vs. U. S. (1923 C. C. A. 3), 294
F. 153, 157.
" Capawana vs. U. S. (1923 C. C. A. 3), 294 F. 153, 157.
"Ex parte Jordan (1876), 94 U. S. 248, 252; In re Mich. C. R. (1903 C. C.
A. 6), 124 F. 727, Lurton, J.
11 Blossom vs. Railroad (1863), 1 Wall. 655, 656; Minn. Co. vs. St. Paul Co.
(1864), 2 Wall. 609, 634; Hinckley vs. Gilman etc., R. (1876), 94 U. S. 467.
" The Lydia (1924 C. C. A. 2), 1 F. (2d) 18, 21-2.
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INTERVENTION IN FEDERAL COURTS
,other court on the same cause of action against the original
plaintiff until the first court has had time to decide the
first suit.
9
3
It is not necessary at the time of admission to determine
the status of an intervener; nor how far he may interfere
with
the
suit.
9 4
An intervener can not reduce his status to that of a spe-
,cial appearance, at least without withdrawing his interven-
ing petition.
9 5
When the stockholders intervene on the ground that a
,corporation refuses to make proper defense they are con-
fined to defenses open to the corporation.
9 6
Interveners once admitted have an independent stand-
:ing, so that the original plaintiff may not have his bill dis-
missed until the intervening petition is disposed of on the
merits.
9 7
An intervener has no right to have his interests decided
after the original bill has been dismissed for lack of juris-
diction.
98
But see above Want of Jurisdiction, sec. 44, for
some modifications of this rule.
Lack of equity jurisdiction to appoint a receiver in the
original bill is not cured by the intervention of a lien cred-
itor, at least if the intervention occurs two months after the
entry of the decree.
99
"Although for certain purposes recognized as a party
to the litigation," an intervener "comes into the litigation
asserting a right antagonistic or superior to that of one or
both of the parties thereto" and his claim may be opposed
Boston Acme etc. vs. Salina Canyon Co. (1925 C. C. A. 8), 3 F. (2d) 799,
734.
"Percy Summer Club vs. Astle (1901), 110 F. 486, 490.
"Rice vs. Durham Water Co. (1899), 91 F. 433, 434.
"Equitable Tr. Co. vs. Wash.-Idaho etc., Co. (1924), 300 F. 601, 613. Cita-
tions.
"Lackner vs. McKechney (1918 C. C. A. 7), 252 F. 403, 409.
" Brietson Mfg. Co. vs. Woodrough (1922 C. C. A. 8), 284 F. 484.
" Pusey & Jones Co. vs. Hansen (1922), 261 U. S. 491, 501.
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by the receiver in the interests of the property or in the in-
terest of any original party.
100
Even amici curaie may be directed by the court to give
certain notices and to report to the court.
1 1
Persons calling themselves interveners in their briefs in
the appellate court who did not appear in the trial court
may not raise questions not in the record; as to issues there
found they may be treated as amici curiae.1
0 2
III. SUBORDINATION.
Sec. 56. Equity Rule 37, second paragraph: "Anyone
claiming an interest in the litigation may at any time be per-
mitted to assert his right by intervention, but the interven-
tion shall be in subordination to, and in recognition of, the
propriety of the main proceeding. "3
"A court rule is generally a formulation of existing prac-
tice." The purpose and application of this rule may there-
fore be discovered as well from earlier as later cases.
Forbes vs. Memphis etc., R. (1872), Fed. Cas. No. 4, 926,
decided forty years before the promulgation of the rule, is
an influential and instructive case. It is a suit by a stock-
holder, a bondholder and trustees for bondholders on behalf
of themselves and of other bondholders, stockholders and
creditors against the corporation for mismanagement, etc.
After the appointment of,'a receiver other stockholders
sought to intervene. As they made, a prima facie case
there was an order giving them leave. On motion by com-
plainants and receiver to show cause why that order should
not be vacated, the order was vacated, for the following
reasons, page 412: "The question, then, as a legal one, is
reduced to this: The suit being properly instituted, the re-
10 Bosworth vs. Term. R. Assn. (1899), 174 U. S. 182, 187.
101 Meek vs. Centre County Banking Co. (1924), 264 U. S. 499, 504.
Veitia vs. Fortuna Estates (1917 C. C. A. 1), 240 F. 256, 262.
198 F. XXVIII.
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INTERVENTION IN FEDERAL COURTS
lief prayed being proper to grant, a receiver being proper-
ly appointed, a decree pro cenfesso being regularly entered,
an authentic report of the facts being made to the court,
and its judgment being passed thereon, can individual
stockholders be now permitted to intervene in the suit and
file a crossbill in the cause on a general charge of fraud and
collusion on the part of the receiver, and erroneous judg-
ment on the part of the court in making the order referred
to ? It seems to me that this would be carrying the practice
of intervention too far.
"It is true that the complainants filed the bill in this case
on behalf of themselves and of all others being stockhold-
ers, creditors or bondholders of the corporation defendant,
who might desire or be entitled to intervene. But it was
never contemplated, nor is it the proper practice, that the
persons embraced in that category should intervene to set
aside the proceedings, or to interpose obstacles to the prog-
ress of the suit. The complainants, by suing as represen-
tatives, open the door to all other parties named to come in
and take the benefit of the proceedings and decree, not to
oppose and nullify them. In a suit so instituted, parties
may come in and prove their claims or status, and partici-
pate in all the dividends and benefits to be derived from the
suit.
"Rival creditors, by proceedings before a master, may
control the priority of their respective liens, and creditors
or stockholders may contest the validity of the claims of
other creditors and stockholders, but all in subordination
to the general object and purpose of the suit, to obtain an
administration of the company's assets and property.
"To be allowed to intervene as general defendants and
contestants is another and different thing. This can be ad-
mitted only upon the ground before referred to, to-wit:
having an interest in the results as a stockholder or other-
wise, and being able to show fraud and collusion between
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the plaintiffs in the suit and the officers of the company
having charge of its interests. A suggestion, in the prog-
ress of the suit, that an officer of the court is disposed to
act fraudulently, or that the court has made an injudicious
or erroneous order, will not be a sufficient ground to allow
such a party to intervene. Indeed, it is questionable wheth-
er, in any case where a suit is properly instituted against a
corporation, a stockholder of that corporation can, even on
a suggestion of fraud on the part of its officers, come in by
way of intervention as party to that suit, and seek to defend
or control the proceedings. An original bill would rather
seem to be the proper mode of proceeding. "4
Or, if necessary, a dependent bill may be used to show
lack of jurisdiction or impropriety of receivership, as ap-
pears from a recent case, in explicit dependence upon the
rule. "When a federal court, by receivers, assumes con-
trol of property in a case of which it has jurisdiction, it can
not be controverted that thereafter, during such control, no
other court may deal directly with the property and that, as
a necessary consequence, the duty and the power of making
all dealings with the property in behalf of all persons whose
rights may be affected is in such federal court, regardless
of the presence or absence of the conditions of federal juris-
diction in each particular controversy that arises. Wa-
bash Railroad vs. Adelbert College, 208 U. S. 38, 54, 28 Sup.
Ct. 182, 52 L. Ed. 379; Compton vs. Jesup, 68 Fed. 263, 15
C. C. A. 397, and cases cited. The court, having jurisdic-
tion of the res, must do justice by all interested in it. This
may be accomplished by that form of intervention known
as pro interesse suo.
"In strictness, intervention results in the intervener be-
coming party plaintiff or defendant in the main case, and
by equity rule 37 (128 [198] Fed. xxviii, 115 C. C. A. xxviii)
'Followed in Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325,
326-7; Hutchinson vs. Phil. & G. S. S. Co. (1914), 216 F. 795, 798-9.
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INTERVENTION IN FEDERAL COURTS
the intervention is in subordination to and in recognition of
the propriety of the main proceeding. Where the right to
be protected is wholly independent of those contested in
the main litigation but must be examined because of the
court's control of the res, an ancillary or dependent bill
may be entertained. Dependent is the better name because
the bill is not an assistance to the main cause, but rather de-
pends on it as an appendage. Such is the bill here. This
court, having no jurisdiction over it as an original and in-
dependent suit, can and must entertain it as depending
from its control of the property sought to be foreclosed up-
on and sold. It sufficiently avers the jurisdictional fact of
this court 's control of the res to make it such, though its
form is otherwise that of an original bill. Continental
Trust Co. vs. Toledo Railroad (C.C.) 82 Fed. 642, affirmed
95 Fed. 497, 36 C. C. A. 155; Morgan's Louisiana & Texas
Railroad vs. Texas Central Railroad, 137 U. S. 171, 11 Sup.
Ct. 61 L. Ed. 625.
"Its prayer for a receivership of the property supersed-
ing that now in existence is urged as defeating the depend-
ent jurisdiction because subversive of the subordination to
and recognition of the propriety of the main suit which
ought to attend the exercises of all dependent jurisdiction.
The subordination to the main suit required of a dependent
bill is not exactly that affecting an intervention. It need
not suffer a sacrifice of any right, or be delayed or hindered
by the main suit, and is, in most respects, a separate litiga-
tion. But evidently it can not attack and seek to destroy-
that on which it depends. [In this case the intervener
could not invoke independent federal jurisdiction for there
was no diversity of citizenship.] The complainant here
can not destroy the very receivership which gives the court
the power to deal with the dependent bill at all, and then
proceed to ask another receivership and further relief
which the court would have no jurisdiction to grant except
189
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for the one so destroyed. If the object of the bill were to
free the property from an improper receivership which
could be done only by entering the court that established it,
the bill should stop at that. (Italics not in original.)
Where, as is the case here, ulterior relief, is really aimed at,
which the court has jurisdiction to grant only because it has
already assumed control of the property, the complainant
in the dependent bill can not begin by upsetting this juris-
dictional foundation. The attack, however, is made more
in argument than by the averments of the bill, and does not
go to a want of jurisdiction to grant the original receiver-
ship. The prayer for a substituted receivership may be
simply disregarded as one that ought not to be granted.
The bill will not be dismissed for its overmuch praying. "15
The distinctions and suggested limitations of the re-
quired subordination set forth by this case are illuminating,
but perhaps not exactly logical, and therefore perhaps more
helpful. Several questions suggest themselves. If peti-
tioners are once admitted as intervening parties, or plain-
tiffs in a dependent suit, is any distinction thereafter made
between those who had and those who had not diversity of
citizenship? Since the right of even this intervener to ask
for the removal of the receiver is conceded, if that were all
he asked, is it not the fact that the court would consider the
petition on the merits in any case?
A rule is a convenient hammer for the unruly; it often
falls into innocuous desuetude. The court of appeals in the
eighth circuit is emphatic ol the necessity of obedience to
Equity Rule 37 in Mueller vs. Adler (1923), 292 F. 138, but
in Zeitinger vs. Hargadine-McKittrick D. G. Co. (1917), 244
F. 719, reversed the trial court's denial of a petition to in-
tervene to overthrow the jurisdiction on account of fraud.
Doubtless both decisions are eminently in accordance with
105 Equitable Tr. Co. vs. Port Wentworth T. Corp. (1922), 281 F. 883, 884.
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INTERVENTION IN FEDERAL COURTS
the soundest equity jurisprudence. "The logic of the law
is the logic of circumstance."
Many opinions assert with misleading breadth that an in-
tervener may not question the jurisdiction of the court over
the main suit.106 In other cases intervention is allowed for
the very purpose of objecting to the jurisdiction, or after
he is admitted the intervener moves to dismiss the suit for
want of jurisdiction.
107
Between some of the cases there
is probably true conflict, but generally the circumstances of
each case justify the decision, though not always the un-
qualified words of the opinion. General rules are perhaps
not possible, as they are not practical, since new circum-
stances continually arise. A few suggestions may not be
amiss. Frequently there are other sufficient grounds for
refusing leave to intervene. Sometimes the jurisdiction is
patent, and the court will not allow a vain thing. Some-
times the court of appeals has already passed upon the jur-
isdiction of the district court, as in the Mueller case above,
and the attack on the jurisdiction is frivolous. A frequent
ground for permitting objection to the jurisdiction is the al-
legation of facts showing fraud on the court. Also con-
venience in disposing of questions as soon as raised. Ap-
parently the modern tendency is not to deny leave to file an
otherwise proper petition to intervene merely on the ground
1 In re Veach (1925, C. C. A. 8), 4 F. (2d), 334, 336, but decided on the
merits, same receivership proceedings as in Mueller vs. Adler above, page
King vs. Barr (1920 C. C. A. 9), 262 F. 56, 59-60, for one reason, that if
there were no jurisdiction proceedings are void, consequently without effect
upon the would-be intervener (a specious argument; void proceedings, allowed
to go on, affect all interested); Cincinnati Equipment Co. vs. Degnan (1910
C. C. A. 6), 184 F. 834, 841, eleventh hour intervener; Pillinger vs. Beaty
(1920 C. C. A. 4), 265 F. 551, 554, same.
I"2 Baldwin Co. vs. Robertson (1924), 265 U. S. 168, 176; Central Tr. Co. vs.
MeGeorge (1894), 151 U. S. 129, 131; Primos Chem. Co. vs. Fulton Steel Corp.
(1918), 254 F. 454, 455; same style, 255 F. 427; In re Beaver Cotton Mills
(1921), 275 F. 498, 500-1, fraud, and only means stockholder had of being
heard on abandonment of corporate enterprise; In re Dressler Prod. Corp
(1919 C. C. A. 2), 262 F. 257, 258; M'Atamney vs. Commonwealth H. etc.'
Corp. (1924), 296 F. 500, intervener raises points whose decision will save
future trouble.
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(61) AMERICAN LAW REIEW
of want of subordination. If the intervener makes im-
proper prayers they can be denied.
The Richfield Oil Company case well illustrates this mod-
ern tendency. The oil company attempted to intervene in
a suit against its debtor in which a receiver had been ap-
pointed. The answer filed with its petition for leave to in-
tervene, set up, among other things, "that the plaintiff had
a complete remedy at law; that the complaint should be
dismissed, and the order appointing a receiver vacated."
The district court denied leave to intervene because of
laches and insubordination. The circuit court of appeals
issued a writ of mandamus to the district judge to allow ap-
peal from his order denying leave to intervene.
08
When
the case came up in the court of appeals, it was held that the
petitioner must be allowed to intervene, as it would other-
wise be remediless.
10 9
It has been held that a dependent suit is so far collateral
to the main suit that neither the jurisdiction nor anything
done in the main suit may be questioned in the depend-
ent.
110
However, for a contrary doctrine see above page
Also that an intervener in a suit to appoint an ancil-
lary receiver may not question the jurisdiction in the orig-
inal suit."
1
Whether interveners should be admitted after
the handing down of a mandate from an appellate court to
dismiss the suit for want of jurisdiction either depends
upon the particular circumstances, or is a matter of direct
conflict.
1 2
The scope of the rule has been recently defined. "The
intervener does not challenge the right of the plaintiff to
file, nor the jurisdiction of this court to entertain, the pres-
' Richfield Oil Co. vs. Sawtelle (1921 C. C. A. 9), 279 F. 851.
10 Richfield Oil Co. vs. Western Mach. Co. (1922 C. C. A. 9), 279 F. 852, 855.
. Compton vs. Jesup (1895 C. C. A. 6), 68 F. 263, 282; Lumley vs. Wabash
R. (1896 C. C. A. 6), 76 F. 66, 69; Peck vs. Elliott (1897 C. C. A. 6), 79 F.
10, 11.
" M'Graw vs. Mott (1910 C. C. A. 4), 179 F. 646, 655.
... See above Procedure, Want of Jurisdiction, page
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INTERVENTION IN FEDERAL COURTS
ent bill, and so the intervention sought is 'in subordination
to, and in recognition of, the property of the main proceed-
ing.' ,,113 Some decisions demand a more complete. sub-
ordination, namely, that the intervener may not come in to
defeat the object and purpose of the main cause.
11 4
Of
course, this does not usually hold, for the intervener is
often a defendant, and therefore is often attempting to de-
feat the object of the main cause. This right of an inter-
vener is expressly upheld in Couch vs. Central Bank & Tr.
Corp. (1924, C. C. A. 5), 297 F. 216, 217.
ANNE BATES HERSMAN.
St. Louis, Mo.
n Wenborne-Karpen Dryer Co. vs. Dort Motor Car Co. (1924), 300 F. 404,
406.
"'Lombard Inv. Co. vs. Seaboard Mfg. Co. (1896), 74 F. 325, 327; Con-
tinental Tr. Co. vs. Toledo etc., R. (1897), 82 F. 642, 647-9; First Tr. Co. vs.
Ill. Cent. R. (1918 C. C. A. 8), 252 F. 965, 968, but other reasons are given.
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