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For our families and for our students

8
 SUMMARY OF CONTENTS

Contents
Preface
Acknowledgments
The Constitution of the United States

Chapter 1. Introduction to Criminal Procedure

Chapter 2. Searches and Seizures
Chapter 3. The Exclusionary Rule
Chapter 4. Police Interrogation and the Privilege Against Self-
Incrimination
Chapter 5. Identification Procedures
Chapter 6. Initiating Prosecution
Chapter 7. Bail and Pretrial Release
Chapter 8. Discovery
Chapter 9. Plea Bargaining and Guilty Pleas
Chapter 10. Speedy Trial Rights
Chapter 11. Right to Counsel
Chapter 12. Trial
Chapter 13. Sentencing
Chapter 14. Double Jeopardy
Chapter 15. Habeas Corpus

Table of Cases
Index

9
 CONTENTS

Preface
Acknowledgments
The Constitution of the United States

CHAPTER 1
INTRODUCTION TO CRIMINAL PROCEDURE

A. The Participants in the Criminal Justice System

1. Defendants
2. Defense Counsel
3. Prosecutors
4. Victims
5. Police and Other Law Enforcement Officers
6. Magistrates and Judges
7. Jurors
8. Corrections Officials
9. Public
10. Media
B. Stages of the Criminal Justice Process
1. Step 1: Pre-Arrest Investigation
2. Step 2: Arrest
3. Step 3: Filing the Complaint
4. Step 4: Gerstein Review
5. Step 5: First Appearance/Arraignment on Complaint
6. Step 6: Grand Jury or Preliminary Hearing
7. Step 7: Arraignment on Indictment or Information
8. Step 8: Discovery
9. Step 9: Pretrial Motions
10. Step 10: Plea Bargaining and Guilty Pleas
11. Step 11: Trial
12. Step 12: Sentencing
13. Step 13: Appeals and Habeas Corpus

10
C. The Purpose of Procedural Rules
Powell v. Alabama
Patterson v. Former Chicago Police Lt. Jon Burge
D. Key Provisions of the Bill of Rights
E. The Application of the Bill of Rights to the States
1. The Provisions of the Bill of Rights and the Idea of
“Incorporation”
2. The Debate over Incorporation
3. The Current Law as to What’s Incorporated
Duncan v. Louisiana
4. The Content of Incorporated Rights
F. Retroactivity

CHAPTER 2
SEARCHES AND SEIZURES

A. Introduction
B. What Is a Search?
Katz v. United States
United States v. Jones
1. Open Fields
Oliver v. United States
United States v. Dunn
2. Aerial Searches
California v. Ciraolo
Florida v. Riley
3. Thermal Imaging of Homes
Kyllo v. United States
4. Searches of Trash
California v. Greenwood
5. Observation and Monitoring of Public Behavior
United States v. Knotts
Smith v. Maryland
6. Use of Dogs to Sniff for Contraband
Illinois v. Caballes
Rodriguez v. United States
Florida v. Jardines
Florida v. Harris
C. The Requirement for Probable Cause
1. What Is Sufficient Belief to Meet the Standard for Probable

11
 Cause?
Illinois v. Gates
Maryland v. Pringle
2. Is It an Objective or a Subjective Standard?
Whren v. United States
3. What if the Police Make a Mistake as to the Law?
Heien v. North Carolina
D. The Warrant Requirement
1. What Information Must Be Included in the Application for a
Warrant?
2. What Form Must the Warrant Take?
Andresen v. Maryland
Groh v. Ramirez
3. What Are the Requirements in Executing Warrants?
a. How May Police Treat Those Who Are Present When a
Warrant Is Being Executed?
Muehler v. Mena
b. Do Police Have to Knock and Announce Before Searching a
Dwelling?
Wilson v. Arkansas
Richards v. Wisconsin
c. What If There Are Unforeseen Circumstances or Mistakes
While Executing a Warrant?
Maryland v. Garrison
Los Angeles County, California v. Rettele
E. Exceptions to the Warrant Requirement
1. Exigent Circumstances
a. Hot Pursuit
Warden, Maryland Penitentiary v. Hayden
Payton v. New York
b. Safety
Brigham City, Utah v. Stuart
c. Preventing Destruction of Evidence
Kentucky v. King
d. Limits on Exigent Circumstances
Missouri v. McNeely
Birchfield v. North Dakota
2. Plain View
Coolidge v. New Hampshire
Minnesota v. Dickerson
3. The Automobile Exception

12
 a. The Exception and Its Rationale
California v. Carney
b. Searches of Containers in Automobiles
California v. Acevedo
c. Searching Automobiles Incident to Arrest
4. Searches Incident to Arrest
Chimel v. California
Knowles v. Iowa
Riley v. California
Arizona v. Gant
5. Inventory Searches
South Dakota v. Opperman
Illinois v. Lafayette
6. Protective Sweeps
Maryland v. Buie
7. Consent
Schneckloth v. Bustamonte
Georgia v. Randolph
Fernandez v. California
8. Searches When There Are “Special Needs”
a. Administrative Searches
Camara v. Municipal Court of City and County of San
Francisco
New York v. Burger
City of Los Angeles v. Patel
b. Border Crossing
United States v. Flores-Montano
United States v. Ramsey
United States v. Montoya-Hernandez
c. Checkpoints
Michigan Department of State Police v. Sitz
City of Indianapolis v. Edmond
d. Schools
Safford Unified School District #1 v. Redding
e. The Government Employment Context
City of Ontario v. Quon
f. Drug Testing
Vernonia School District 47J v. Acton
Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls
Ferguson v. City of Charleston

13
 g. Searches in Jails and Prisons
Florence v. Board of Chosen Freeholders of the County of
Burlington
h. DNA Testing of Those Arrested
Maryland v. King
9. Searches of Those on Probation and Parole
United States v. Knights
Samson v. California
F. Seizures and Arrests
1. Is a Warrant Needed for Arrests?
United States v. Watson
2. When Is a Person Seized?
United States v. Mendenhall
California v. Hodari D.
3. For What Crimes May a Person Be Arrested?
Atwater v. City of Lago Vista
G. Stop and Frisk
1. The Authority for Police to Stop and Frisk
Terry v. Ohio
2. The Distinction Between Stops and Arrests
3. What May Police Do When They Stop an Individual?
Hiibel v. Sixth Judicial District Court of Nevada
4. What Is Sufficient for Reasonable Suspicion?
a. Reasonable Suspicion: General Principles
United States v. Arvizu
b. Reasonable Suspicion Based on Informants’ Tips
Alabama v. White
Florida v. J.L.
Navarette v. California
c. Reasonable Suspicion Based on a Person’s Trying to Avoid a
Police Officer
Illinois v. Wardlow
d. Reasonable Suspicion Based on Profiles
United States v. Sokolow
H. Electronic Surveillance
1. Is Electronic Eavesdropping a Search?
2. Statutory Requirements
3. Warrantless Eavesdropping
United States v. United States District Court for the Eastern
District of Michigan

14
 CHAPTER 3
THE EXCLUSIONARY RULE

A. Is the Exclusionary Rule a Desirable Remedy for Unconstitutional

Police Behavior?
Hudson v. Michigan
B. The Origins of the Exclusionary Rule
Weeks v. United States
Mapp v. Ohio
C. When Does the Exclusionary Rule Apply?
Herring v. United States
Davis v. United States
D. Who Can Object to the Introduction of Evidence and Raise the
Exclusionary Rule?
Rakas v. Illinois
Minnesota v. Carter
Brendlin v. California
E. Exceptions to the Exclusionary Rule
1. Independent Source
Murray v. United States
2. Inevitable Discovery
Nix v. Williams
3. Inadequate Causal Connection—Attenuation of the Taint
Brown v. Illinois
Utah v. Strieff
4. The Good Faith Exception to the Exclusionary Rule
United States v. Leon
5. The Exception for Violations of the Requirement for “Knocking
and Announcing”
F. Suppression Hearings

CHAPTER 4
POLICE INTERROGATION AND THE PRIVILEGE AGAINST
SELF-INCRIMINATION

A. Due Process and the Requirement for Voluntariness

1. The Requirement for Voluntariness
Brown v. Mississippi
2. Determining Whether a Confession Is Voluntary
a. The Length of the Interrogation and Whether the Defendant

15
 Was Deprived of Basic Bodily Needs
b. The Use of Force and Threats of Force
Arizona v. Fulminante
c. Psychological Pressure Tactics
Spano v. New York
d. Deception
e. The Age, Level of Education, and Mental Condition of a
Suspect
Colorado v. Connelly
3. Is the Voluntariness Test Desirable?
4. Coercive Questioning, Torture, and the War on Terrorism
B. Fifth Amendment Limits on In-Custodial Interrogation: Miranda v.
Arizona
1. Miranda v. Arizona and Its Affirmation by the Supreme Court
Miranda v. Arizona
Dickerson v. United States
2. Is Miranda Desirable?
3. What Are the Requirements for Miranda to Apply?
a. When Is a Person “in Custody”?
Oregon v. Mathiason
J.D.B. v. North Carolina
Berkemer v. McCarty
b. What Is an “Interrogation”?
Rhode Island v. Innis
Illinois v. Perkins
c. What Is Required of the Police?
California v. Prysock
Duckworth v. Eagan
4. What Are the Consequences of a Violation of Miranda?
Oregon v. Elstad
Missouri v. Seibert
United States v. Patane
5. Waiver of Miranda Rights
a. What Is Sufficient to Constitute a Waiver?
North Carolina v. Butler
Berghuis v. Thompkins
Salinas v. Texas
b. How Is a Waiver After the Assertion of Rights Treated?
Michigan v. Mosley
Edwards v. Arizona
Minnick v. Mississippi

16
 Maryland v. Shatzer
Davis v. United States
6. What Are the Exceptions to Miranda?
a. Impeachment
Harris v. New York
b. Emergencies
New York v. Quarles
c. Booking Exception
C. The Sixth Amendment Right to Counsel and Police Interrogations
1. The Sixth Amendment Right to Counsel During Interrogations
Massiah v. United States
Brewer v. Williams
2. The Sixth Amendment Right to Counsel Is Offense Specific
Texas v. Cobb
3. Waivers
Montejo v. Louisiana
4. What Is Impermissible Police Eliciting of Statements?
United States v. Henry
Kuhlmann v. Wilson
D. The Privilege Against Self-Incrimination in Other Contexts
1. What Are the Requirements for the Privilege Against Self-
Incrimination to Apply?
a. Only Individuals May Invoke the Privilege
b. The Privilege Applies Only to That Which Is Testimonial
Schmerber v. California
c. There Must Be Compulsion
d. There Must Be the Possibility of Incrimination
2. When May the Government Require the Production of Documents
and Other Things?
Fisher v. United States
3. May the Government Require Testimony If It Provides Immunity?
Kastigar v. United States
United States v. Hubbell

CHAPTER 5
IDENTIFICATION PROCEDURES

A. The Right to Counsel

1. The Right to Counsel in Lineups
United States v. Wade

17
 2. Limits on the Right to Counsel in Identification Procedures
Kirby v. Illinois
United States v. Ash
B. Due Process Protection for Identification Procedures
1. Unnecessarily Suggestive Identification Procedures by Police
Violate Due Process
Foster v. California
2. Limits on the Ability of Courts to Find That Identification
Procedures Violate Due Process
Simmons v. United States
Neil v. Biggers
Manson v. Brathwaite
3. Requirement That Police Be Involved in Creating the Suggestive
Identification Procedure
Perry v. New Hampshire

CHAPTER 6
INITIATING PROSECUTION

A. The Charging Decision

People v. Robert Denny
Inmate Convicted of Indecent Exposure
Mandatory 55-Year Sentence “Extreme”?
Inmates of Attica Correctional Facility v. Rockefeller
B. Limits on Prosecutorial Discretion
1. Statutory and Administrative Limits
2. Ethical Limits
Lawyer Disbarred over Lacrosse Rape Case
3. Constitutional Limits
a. Selective or Discriminatory Enforcement
Wayte v. United States
United States v. Armstrong
b. Vindictive Prosecution
Blackledge v. Perry
C. Formal Charging Mechanisms
1. The Grand Jury
a. Operation of the Grand Jury
b. Screening Function of the Grand Jury
Costello v. United States
United States v. Williams

18
 c. Grand Jury Reform
2. Preliminary Hearing
D. Severance and Joinder
1. Federal Rules of Criminal Procedure 8 and 14
2. Irreconcilable Conflicts and Bruton Problems
a. Conflicting Defenses
Zafiro v. United States
b. Bruton Problems
Bruton v. United States
Richardson v. Marsh
Gray v. Maryland
E. Amendments and Variances

CHAPTER 7
BAIL AND PRETRIAL RELEASE

A. Introduction
B. Preventive Detention
1. Pretrial Detention
United States v. Salerno
2. Other Types of Preventive Detention
a. Detention of Material Witnesses
United States v. Awadallah
b. Preventive Detention of Sexual Predators
Kansas v. Hendricks
c. Preventive Detention for Immigration Detainees
d. Enemy Combatants

CHAPTER 8
DISCOVERY

A. Introduction
B. Statutory and Rule Discovery: A Two-Way Street
Williams v. Florida
C. Constitutional Discovery: A One-Way Street
Brady v. Maryland
Giglio v. United States
United States v. Bagley
Kyles v. Whitley

19
 Banks v. Dretke
D. Discovery for Guilty Pleas
E. Duty to Preserve Evidence
Arizona v. Youngblood
F. Final Note

CHAPTER 9
PLEA BARGAINING AND GUILTY PLEAS

A. Introduction
B. Plea Bargaining
1. History of Plea Bargaining
2. The Pros and Cons of Plea Bargaining
a. Support for Plea Bargaining
b. Criticisms of Plea Bargaining
c. Evaluating a Plea Bargain
3. Bans on Plea Bargaining
4. The Legality of Plea Bargaining
Brady v. United States
5. Effective Assistance of Counsel for Plea Bargaining
Missouri v. Frye
Lafler v. Cooper
C. Guilty Pleas
Boykin v. Alabama
Henderson v. Morgan
Hill v. Lockhart
Padilla v. Kentucky
D. Rule 11 and the Procedural Requirements for Entering Guilty Pleas
E. Remedies for Violations of Plea Agreements
Santobello v. New York
Ricketts v. Adamson
F. Withdrawal of Guilty Pleas

CHAPTER 10
SPEEDY TRIAL RIGHTS

A. Introduction
B. Why Speedy Trial Rights Matter
Right to a Speedy Trial? Justice Delayed

20
 State Loses Appeal in Child-Rape Case
Judge Dismisses Molestation Case—Again
1. Impact on the Defendant
2. Impact on the Prosecution and Witnesses
3. Impact on the Public
C. Due Process and Speedy Trial Rights
1. Pre-Charging Delay, Due Process Rights, and Statutes of
Limitations
United States v. Marion
Federal Statutes of Limitation
United States v. Lovasco
2. Post-Charging Delay and Speedy Trial Rights
a. Statutory Protections
b. Constitutional Protection
Barker v. Wingo
Doggett v. United States
Vermont v. Brillon
c. Other Speedy Trial Rules and Laws
D. Remedies for Speedy Trial Violations
E. Speedy Trial Rights and Sentencing
Betterman v. Montana

CHAPTER 11
RIGHT TO COUNSEL

A. Introduction
B. Appointment of Counsel
Gideon v. Wainwright
C. When the Right to Counsel Applies
Argersinger v. Hamlin
D. Standard for “Effective Assistance” of Counsel
Strickland v. Washington
1. Conflicts of Interest
2. Complete Denial of Counsel
3. Strategic Decisions by Defense Counsel
Florida v. Nixon
4. Right to Retain Counsel
5. Right to Retain Experts
E. Right of Self-Representation
Faretta v. California

21
 Indiana v. Edwards
F. Right of Counsel for Enemy Combatants

CHAPTER 12
TRIAL

A. Trial by Jury
1. Role of the Jury
Duncan v. Louisiana
2. When Is There a Right to a Jury Trial?
3. Composition of the Jury
a. Number of Jurors
Williams v. Florida
Ballew v. Georgia
b. Unanimity
Apodaca v. Oregon
B. Jury Composition and Selection
1. Selecting the Jury Venire
Taylor v. Louisiana
2. Selecting the Petit Jury
Batson v. Kentucky
3. Applying Batson
a. Standing to Raise Batson Challenges
b. Batson Challenges in Civil Cases
c. Discriminatory Use of Peremptory Challenges by the Defense
d. Batson Challenges to Other Types of Discrimination
e. The Mechanics of Bringing Batson Challenges
Snyder v. Louisiana
Rivera v. Illinois
C. Pretrial Publicity and the Right to a Fair Trial
1. When Does Pretrial Publicity Interfere with a Defendant’s Right to
a Fair Trial?
Irvin v. Dowd
Skilling v. United States
2. Remedies for Prejudicial Pretrial Publicity
a. Closure of Courtrooms
b. Other Remedies
Sheppard v. Maxwell
c. Ethical Limitations on Lawyers’ Extrajudicial Comments
Gentile v. State Bar of Nevada

22
 United States v. Cutler
d. Prior Restraints
Nebraska Press Association v. Stuart
3. Cameras in the Courtroom
Chandler v. Florida
D. Trial Rights: Due Process, Right of Confrontation, and Privilege
Against Self-Incrimination
1. Right of Confrontation
a. Right to Be Present at Trial
Illinois v. Allen
Deck v. Missouri
b. Right to Confront Witnesses
Maryland v. Craig
Crawford v. Washington
Michigan v. Bryant
Ohio v. Clark
2. Privilege Against Self-Incrimination and Improper Closing
Arguments
Griffin v. California
Darden v. Wainwright
E. Defendant’s Right to Present a Defense
Chambers v. Mississippi
Holmes v. South Carolina
F. Role of the Jury and Proof Beyond a Reasonable Doubt
In re Winship

CHAPTER 13
SENTENCING

A. Introduction
B. Indeterminate Versus Determinate Sentencing
1. Indeterminate Sentencing
2. Determinate Sentencing
3. Mandatory Minimum Sentences
4. Apprendi and Its Progeny
Apprendi v. New Jersey
Blakely v. Washington
United States v. Booker
C. Eighth Amendment: When Does a Sentence Constitute Cruel and
Unusual Punishment?

23
 1. Determining When a Sentence Is Proportional
Solem v. Helm
2. Proportionality and Three Strikes Laws
Ewing v. California
3. Juveniles and Sentencing
Graham v. Florida
Miller v. Alabama
4. Excessive Fines and Forfeitures
United States v. Bajakajian
D. The Death Penalty
1. Is the Death Penalty Unconstitutional?
Furman v. Georgia
2. Standards for Constitutional Implementation of the Death Penalty
3. Recent Limits on the Scope of the Death Penalty
a. Prohibition of the Death Penalty for Mentally Retarded
Defendants
Atkins v. Virginia
b. Prohibition of the Death Penalty for Crimes Committed by
Minors
Roper v. Simmons
c. Prohibition of the Death Penalty for Non-Homicide Offenses
Kennedy v. Louisiana
d. Method of Execution
Baze v. Rees
Glossip v. Gross

CHAPTER 14
DOUBLE JEOPARDY

A. Introduction
United States v. Scott
B. The Basics
1. What Is a Criminal Offense?
Hudson v. United States
2. What Is the “Same Offense”?
Blockburger v. United States
3. When Does Jeopardy Attach?
C. No Retrial Following Conviction or Acquittal
1. No Retrial After Acquittal
Burks v. United States

24
 2. No Retrial After Conviction
D. Exceptions to the Double Jeopardy Rule
1. Retrial After Mistrials
a. Retrial After Mistrial for Hung Jury
United States v. Sanford
b. Retrials After Other Mistrials
United States v. Dinitz
Oregon v. Kennedy
2. Dual Sovereignty
Bartkus v. Illinois
E. Multiple Charges and Cumulative Punishments
Rutledge v. United States
F. Collateral Estoppel
Ashe v. Swenson
Yeager v. United States

CHAPTER 15
HABEAS CORPUS

A. Introduction
B. The Issues That Must Be Addressed in Order for a Federal Court to
Grant Habeas Corpus Relief
1. Is the Petition Time Barred?
Holland v. Florida
McQuiggin v. Perkins
2. Is It a First or a Successive Habeas Corpus Petition?
Tyler v. Cain
Magwood v. Patterson
3. Has There Been Exhaustion of All of the Claims Raised in the
Habeas Petition?
Rose v. Lundy
4. Does the Petition Rely on Existing Rules or Seek Recognition of a
New Rule of Constitutional Law?
Teague v. Lane
5. Is It an Issue That Can Be Raised on Habeas Corpus?
Stone v. Powell
6. Has There Been a Procedural Default, and If So, Is There Either
Cause and Prejudice or an Adequate Showing of Actual
Innocence?
Wainwright v. Sykes

25
Another Random Scribd Document
with Unrelated Content
various schools diverge never to meet again; and posterity is
debarred from viewing the original purity of the universe and the
grandeur of the ancients. For the system of Tao is scattered in
fragments over the face of the earth.
Not to covet posthumous fame, nor to aim at dazzling the world, nor
to pose as a benefactor of mankind, but to be a strict self-
disciplinarian while lenient to the faults of others,—herein lay the Tao
of the ancients.
Mih Tzŭ and Ch'in Hua Li
A disciple of Mih Tzŭ.
became enthusiastic followers of Tao, but they pushed the system
too far, carrying their practice to excess. The former wrote an essay
Against Music, and another which he entitled Economy.
To be found in the collection which passes under the name of Mih Tzŭ.
There was to be no singing in life, no mourning after death. He
taught universal love and beneficence towards one's fellow men,
without contentions, without censure of others. He loved learning,
but not in order to become different from others. Yet his views were
not those of the ancient Sages, whose music and rites he set aside.
The Yellow Emperor gave us the Hsien-ch'ih. Yao gave us the Ta-
chang. Shun, the Ta-shao. Yü, the Ta-hsia. T'ang, the Ta-hu. Wên
Wang, the P'i-yung. Wu Wang and Chou Kung added the Wu.
Famous musical compositions.

The mourning ceremonial of old was according to the estate of each,

and determined in proportion to rank. Thus, the body of the Son of
Heaven was enclosed in a seven-fold coffin. That of a feudal prince,
in a five-fold coffin. That of a minister, in a three-fold coffin. That of
a private individual, in a two-fold coffin. But now Mih Tzŭ would have
no singing in life, no mourning after death, and a single coffin of
only three inches in thickness as the rule for all alike!
Such doctrines do not illustrate his theory of universal love;
They betray a want of sympathy with human weaknesses.
neither does his practice of them establish the fact of his own
personal self-respect. They may not suffice to destroy his system
altogether; though it is unreasonable to prohibit singing, and
weeping, and rejoicing in due season.
He would have men toil through life and hold death in contempt. But
this teaching is altogether too unattractive. It would land mankind in
sorrow and lamentation. It would be next to impossible as a practical
system, and cannot, I fear, be regarded as the Tao of the true Sage.
It would be diametrically opposed to human passions, and as such
would not be tolerated by the world. Mih Tzŭ himself might be able
to carry it out; but not the rest of the world. And when one
separates from the rest of the world, his chances of developing an
ideal State become small indeed.
Mih Tzŭ argued in favour of his system as follows:—Of old, the great
Yü drained off the flood of waters, and caused rivers and streams to
flow through the nine divisions of the empire and the parts adjacent
thereto,—three hundred great rivers, three thousand branches, and
streams without number. With his own hands he plied the bucket
and dredger, in order to reduce confusion to uniformity,
Make all streams flow to the sea.
until his calves and shins had no hair left upon them. The wind
bathed him, the rain combed him; but he marked out the nations of
the world, and was in very truth a Sage. And because he thus
sacrificed himself to the commonwealth, ages of Mihists to come
would also wear short serge jackets and straw sandals, and toil day
and night without stopping, making self-mortification their end and
aim, and say to themselves, "If we cannot do this, we do not follow
the Tao of Yü, and are unworthy to be called Mihists."
The disciples of Hsiang Li Ch'in,
A professor of Mihism.

the followers of the five princes, Mihists of the south, such as K'u
Huo, Chi Ch'ih, and Têng Ling,—all these studied the canon of Mih
Tzŭ, but their disagreements and agreements were not identical.
They called each other schismatics, and quarrelled over the "hard
and white," the "like and unlike," and argued over questions of "odd
and even." Chü Tzŭ was their Sage, and they wanted to canonise
him as a saint, that they might carry on his doctrines into after ages.
Even now these differences are not settled.
Thus we see that Mih Tzŭ and Ch'in Hua Li, while right in theory,
were wrong in practice. They would merely have taught mankind to
vie with each other in working the hair off their calves and shins.
The evil of that system would have predominated over the good.
Nevertheless, Mih Tzŭ was undoubtedly a well-meaning man. In
spite of failure, with all its withering influences, he stuck to his text.
He may be called a man of genius.
But not a true Sage.
Not to be involved in the mundane, not to indulge in the specious,
not to be overreaching with the individual, nor antagonistic to the
public; but to desire the tranquillity of the world in general with a
view to the prolongation of life, to seek no more than sufficient for
the requirements of oneself and others, and by such a course to
purify the heart,—herein lay the Tao of the ancients.
Sung Hsing and Yin Wên became enthusiastic followers of Tao. They
adopted a cap, shaped like the Hua Mountain, as a badge. They bore
themselves with kindly discrimination towards all things. They spoke
of the passive qualities of the heart as though they had been active;
and declared that whosoever could bring joy among mankind and
peace within the girdle of ocean should be made ruler over them.
They suffered obloquy without noticing the insult. They preserved
the people from strife. They prohibited aggression and caused arms
to lie unused. They saved their generation from wars, and carried
their system over the whole empire, to the delight of the high and to
the improvement of the lowly. Though the world would have none of
them, yet they struggled on and would not give way. Hence it was
said that when high and low became tired of seeing them, they
intruded themselves by force. In spite of all this, they did too much
for others, and too little for themselves.
"Give us," said they, "but five pints of rice, and it will be enough."
The master could not thus eat his fill; but the disciples, although
starving, did not forget the world's claims.
This is not satisfactorily explained by any commentator. Kuo Hsiang
says that these two men regarded the world as their "master."
Day and night they toiled on, saying, "Must we necessarily live? Shall
we ape the so-called saviours of mankind?"
"The superior man," they say, "is not a fault-finder. He does not
appropriate the credit of others. He looks on one who does no good
to the world as a worthless fellow. He regards prohibition of
aggressive actions and causing arms to lie unused, as external; the
diminution and restraint of our passions, as internal. In all matters,
great or small, subtle or gross, such is the point to which he attains."
To be public-spirited and belong to no party, in one's dealings not to
be all for self, to move without being bound to a given course, to
take things as they come, to have no remorse for the past, no
anxiety for the future, to have no partialities, but to be on good
terms with all,—herein lay the Tao of the ancients.
P'êng Mêng, T'ien P'ien, and Shên Tao, became enthusiastic
followers of Tao. Their criterion was the identity of all things. "The
sky," said they, "can cover but cannot support us. The earth can
support but cannot cover us. Tao can embrace all things but cannot
deal with particulars."
They knew that in creation all things had their possibilities and their
impossibilities. Therefore they said, "Selection excludes universality.
Training will not reach in all directions. But Tao is comprehensive."
Consequently, Shên Tao discarded all knowledge and self-interest
and became a fatalist.
It is about as difficult to apprehend Tao apart from fatalism as the
omniscience of God apart from predestination.
Passivity was his guiding principle. "For," said he, "we can only know
that we know nothing, and a little knowledge is a dangerous thing.
"Take any worthless fellow who laughs at mankind for holding virtue
in esteem, any unprincipled vagabond who reviles the great Sages of
the world, and subject him to torture. In his agony he will sacrifice
positive and negative alike. If he can but get free, he will trouble no
more about knowledge and forethought. Past and future will cease
to exist for him, in his then neutral condition.
"Move when pushed, come when dragged. Be like a whirling gale,
like a feather in the wind, like a mill-stone going round. The mill-
stone as an existence is perfectly harmless. In motion or at rest it
does no more than is required, and cannot therefore incur blame.
"Why? Because it is simply an inanimate thing. It has no anxieties
about itself. It is never entangled in the trammels of knowledge. In
motion or at rest it is always governed by fixed laws, and therefore it
never becomes open to praise. Hence it has been said, 'Be as
though an inanimate thing, and there will be no use for Sages.'
"For a clod cannot be without Tao,"—at which some full-blooded
young buck covered the argument with ridicule by crying out, "Shên
Tao's Tao is not for the living, but for the dead!"
It was the same with T'ien P'ien. He studied under P'êng Mêng; with
the result that he learnt nothing.
Tao cannot be learnt.
P'êng Mêng's tutor said, "Those of old who knew Tao, reached the
point where positive and negative ceased to exist. That was all."
Now the bent of these men is one of opposition, which it is difficult
to discuss. They act in every way differently from other people, but
cannot escape the imputation of purpose.
Which takes the place of spontaneity.
What they call Tao is not Tao; and what they predicate affirmatively
cannot escape being negative. The fact is that P'êng Mêng, T'ien
P'ien, and Shên Tao, did not know Tao. Nevertheless they all had a
certain acquaintance with it.
To make the root the essential, to regard objective existences as
accidental, to look upon accumulation as deficiency, and to meekly
accept the dispositions of Providence,—herein lay the Tao of the
ancients.
Kuan Yin and Lao Tzŭ became enthusiastic followers of Tao.
For Kuan Yin, see p. 230.
They based their system upon nothingness, with One as their
criterion. Their outward expression was gentleness and humility.
Their inward belief was in unreality and avoidance of injury to all
things.
Kuan Yin said, "Adopt no absolute position. Let externals take care
of themselves. In motion, be like water. At rest, like a mirror.
Receptive, but not permanently so.
Respond, like the echo.
Only when called upon.
Be subtle, as though non-existent. Be still, as though pure. Regard
uniformity as peace. Look on gain as loss. Do not precede others.
Follow them."
Lao Tzŭ said, "He who conscious of being strong, is content to be
weak,—he shall be a cynosure of men.
This is quoted by Huai Nan Tzŭ as a saying by Lao Tzŭ, and appears
in ch. xxviii of the Tao-Tê-Ching. See The Remains of Lao Tzŭ, p. 21.

"He who conscious of purity, puts up with disgrace,—he shall be the

cynosure of mankind.
"He who when others strive to be first, contents himself with the
lowest place, is said to accept the contumely of the world.
"He who when others strive for the substantial, contents himself
with the unsubstantial, stores up nothing and therefore has
abundance. There he is in the midst of his abundance which comes
to him without effort on his part. He does nothing, and laughs at the
artifices of others.
"He who when others strive for happiness is content with security, is
said to aim at avoiding evil.
Compare the Tao-Tê-Ching, ch. xxii.
"He who makes depth of fundamental importance and moderation
his rule of life, is said to crush that which is hard within him and
temper that which is sharp.
"To be in liberal sympathy with all creation, and not to be aggressive
towards one's fellow-men,—this may be called perfection."
O Kuan Yin! O Lao Tzŭ! verily ye were the true Sages of old.
Silence, formlessness, change, impermanence, now life, now death,
heaven and earth blended in one, the soul departing, gone no one
knows where: suddenly, no one knows whither, as all things go in
turn, never to come back again;—herein lay the Tao of the ancients.
Chuang Tzŭ became an enthusiastic follower of Tao. In strange
terms, in bold words, in far-reaching language, he gave free play to
his thoughts, without following any particular school or committing
himself to any particular line.
He looked on the world as so sunk in corruption that it was
impossible to speak gravely. Therefore he employed "goblet words"
which apply in various directions; he based his statements upon
weighty authority in order to inspire confidence; and he put words in
other people's mouths in order to secure breadth.
See ch. xxvii ad init.
In accord with the spirit of the universe, he was at peace with all
creation. He judged not the rights and wrongs of mankind, and thus
lived quietly in his generation. Although his book is an extraordinary
production, it is plausible and harmless enough. Although the style is
most irregular, it is at the same time ingenious and attractive.
As a thinker, he is endlessly suggestive. Above, he roams with God.
Below, he consorts with those who are beyond the pale of life and
death, who deny a beginning and an end. In relation to the root,
 The origin of all things.
he speaks on a grand and extensive scale. In relation to Tao, he
establishes a harmony between man and the higher powers.
Nevertheless, he yields to the modifications of existence and
responds to the exigencies of environment. His arguments are
inexhaustible, and never illogical. He is far-reaching, mysterious, and
not to be fully explored.
It is impossible for a European critic to believe that Chuang Tzŭ
penned the above paragraphs. See post, p. 454.
Hui Tzŭ was a man of many ideas. His works would fill five carts. But
his doctrines are paradoxical, and his terms are used ambiguously.
He calls infinite greatness, beyond which there is nothing, the
Greater One. He calls infinite smallness, within which there is
nothing, the Lesser One.
Recognising two absolute extremes.
He says that that which is without dimensions measures a thousand
li.
On the principle that mathematical points, though themselves without
dimensions, collectively fill up space.
That heaven and earth are equally low. That mountain and marsh
are equally level.
It depends upon the point of view.
That the sun at noon is the sun setting.
To people living farther east.
That when an animal is born, it dies.
As regards its previous state it dies when leaving it for a new state.
That the likeness of things partly unlike is called the lesser likeness
of unlikes. That the likeness of things altogether unlike is called the
greater likeness of unlikes. That southwards there is no limit, and
yet there is a limit. That one can reach Yüeh to-day and yet be there
before. That joined rings can be separated. That the middle of the
world is north of Yen and south of Yüeh.
It is wherever the speaker is. The space between Yen and Yüeh is as
zero compared with the infinite.
That he loves all creation equally, just as heaven and earth are
impartial to all.
In covering and supporting all.
Accordingly, Hui Tzŭ was regarded as a great philosopher and a very
subtle dialectician; and became a favourite with the other
dialecticians of the day.
He said that there were feathers in an egg.
Because on a chicken.
That a fowl had three feet.
The third being volition.
That Ying was the world.
As you cannot say it is not the world.
That a dog could be a sheep. That a mare could lay eggs. That a nail
has a tail.
Names being arbitrary in all cases.
That fire is not hot.
It is the man who feels it hot.
That mountains have mouths.
As evidenced by echoes.
That wheels do not press down the ground.
Touching only at a point.
That the eye does not see.
It is the man.
That the finger does not touch. That the uttermost extreme is not
the end. That a tortoise is longer than a snake.
 Because longer lived!
That a carpenter's square is not square.
Like Horace's Whetstone which makes other things sharp, "exsors ipsa
secandi."
That compasses will not make a circle.
It is the draughtsman.
That a round hole will not surround a square handle. That the
shadow of a flying bird does not move. That there is a moment
when a swiftly-flying arrow is neither moving nor at rest. That a dog
is not a hound.
Two things cannot be identical unless even their names are the same.
That a bay horse and a dun cow are three.
Taken separately they are two. Taken together they are one. One and
two make three.
That a white dog is black.
If his eyes are black. Part standing for the whole.
That a motherless colt never had a mother.
When it had a mother, it was not an orphan.
That if you take a stick a foot long and every day cut it in half, you
will never come to the end of it.
Compare "Achilles and the Tortoise," and the sophisms of the Greek
philosophers.
And such was the stuff which dialecticians used to argue about with
Hui Tzŭ, also without ever getting to the end of it.
Huan T'uan and Kung Sun Lung were of this class. By specious
premisses they imposed on people's minds and drove them into false
conclusions. But though they won the battle in words, they did not
carry conviction into their adversaries' hearts. Theirs were but the
snares of the sophist.
Hui Tzŭ daily devoted his intelligence to such pursuits, purposely
advancing some preposterous thesis upon which to dispute. That
was his characteristic. He had besides a great opinion of his own
wisdom, and used to say, "The universe does not hold my peer."
Hui Tzŭ makes a parade of his strength, but is devoid of any sound
system. An eccentric fellow in the south, named Huang Liao, asked
why the sky did not fall and the earth sink; also, whence came wind,
rain, and thunder.
Hui Tzŭ was not backward in replying to these questions, which he
answered unhesitatingly. He went into a long discussion on all
creation, and talked away without end, though to himself he seemed
to be saying very little. He supplemented this with most
extraordinary statements, making it his chief object to contradict
others, and being desirous of gaining fame by defeating all comers.
Thus, he was never popular. Morally, he was weak; physically, he
was violent. His was a dark and narrow way.
Looked at from the point of view of the Tao of the universe, the
value of Hui Tzŭ may be compared with the efforts of a mosquito or
a gadfly. Of what use was he to the world? As a specialist, he might
have succeeded. But to let him put himself forward as an exponent
of Tao, would have been dangerous indeed.
He would not however be content to be a specialist. He must needs
roam insatiably over all creation, though he only succeeded in
securing the reputation of a sophist.
Alas for the talents of Hui Tzŭ! He is extravagantly energetic, and yet
has no success. He investigates all creation, but does not conclude
in Tao. He makes a noise to drown an echo. He is like a man running
a race with his own shadow. Alas!
As to the genuineness of this concluding chapter, every one may form
his own opinion. The question has been hotly fought, and great
names could be mentioned on each side. Wang An Shih and Su Tung
P'o both thought that it might well have come from the hand of
Chuang Tzŭ. Lin Hsi Chung thought not, and on his side the majority
of Western students will in all probability be ranged.
 INDEX
Accidentals, 162
Achilles and the Tortoise, 453
Action, 5, 266, 293
Affirmative and Negative, 17
Aggression, 340
Ai, Duke, 62, 268, 429
Ai Fêng, 29
Ai T'ai T'o, 62
All-in-extremes, 276
Alternation theory, 18
Anger, 310
Ants and Mutton, 330
Apricot Altar, 413
Archery, 60, 255, 272, 308, 309, 318
Argument, Futility of, 30
Arms, Appeal to, 162
Arms, Men of, 318
Artificial, The, 147, 175, 210, 232, 309
Augur and the pigs, The Grand, 236

Balancing balls, 233

Bantams, 297
Battered but not Bruised, 80
Battering-ram, 207
Battle, The Six Plans of, 313
Beauty, 182, 260, 337
Bells, Chime of, 250
Bird, The strange, 258
Bishop-wort, 313
Black Forest, The, 413
Black Water, The, 276
Blades from Kan, 193
Boats, 75, 249, 295
Body, The human, 15;
(without body) 145
Body and soul parted, 12, 324
Bogy, A, 236
Books, 170
Boots, (for the toeless) 63;
(outside door) 368, 424
Border-warden, The, 141
Breathing from the heels, 69
Business, 133
Butcher, The faithful, 376
Butterfly, Chuang Tzŭ a, 32

Canon of Confucianism, 166, 188, 312, 438, 439

Cataract, A, 238
Caterpillars, 297
Cats, 312;
(wild) 10
Centipede, The, 211
Ceremonial, 89, 108, 121, 133, 162, 195, 277, 318,
440
Chance, 350
Chan Tzŭ, 380
Ch'ang Chi, 56
Chang Hung, 112
Ch'ang Hung, 352
Chang I, 235
Chang Jo, 316
Chang Wu Tzŭ, 28
Ch'ang Yü, 316
Chao Hsi, 373
Chao Wên, 22
Chapped hands, Salve for, 9
Charioteering, 241
Charity, 88, 100, 101, 108, 114, 122, 133, 277, 307
Chê, Robber, 103, 112, 120, 155, 387
Ch'êns and Ts'ais, 180, 251, 253, 255, 380
Chê-yang, The, 154
Ch'êng, 281
Chêng K'ao Fu, 431
Chêng State, The, 59, 94
Ch'i, Mt., 372
Ch'i Kung, 261
Ch'i State, The, 50, 65, 110
Ch'i-yang, 384
Chi Ch'ê, 145, 146
Chi-yung, 331
Chi T'o, 72, 361
Chi Tzŭ (1) 72, 352;
(2) 339
Chi Chên, 350
Chi Ch'ih, 442
Chi Chü, 45
Chi Hsing Tzŭ, 238
Chi Han, Magician, 94
Chiang Lü Mien, 145, 146
Chieh, 40, 119, 383
Chieh-kêng, 331
Chieh Tzŭ, 350
Chieh Yü, 7, 55, 92
Chien Ho, 353
Chien Wu, 6, 77, 92, 273
Chih, 206
Ch'ih Chang Man Chi, 152
Ch'ih Chi, 207
Chih-ho, 354
Chih Kung, 401
Ch'ih Yu, 392
Children, 299, 300, 301, 358
Chin, Duke of, 29
Chin State, The, 147
Ch'in Hua Li, 440
Ch'in Lao, 342
Chin-shao, The, 226, 244
Ch'in Shih, 36
Ch'in State, The, 368
Ch'ing, Carpenter, 240
Ch'ing-ning, The, 228
Ching-shih, 53
Ching Shou, The, 33
Ch'iu (Confucius), 145, 189
Chiu Fang Yin, 327
Ch'iu-shih, 426
Chiu-yu, The, 228
Chŏ-lu, 392
Chou, 40
Chou, River, 383
Chou Kung, 181, 384
Chrysalis, 3
Chu Hsien, 234
Chu Yung, 116
Ch'u State, The, 3 et alt. pass.
Chuan Hsü, 77
Chuang, Duke, 241
Chuang Tzŭ, 9,
(and the butterfly) 32; 66, 137, 159, 215, 216,
(asked to take office) 217, 434,
(and the fishes) 218,
(death of wife) 223,
(and the skull) 224,
(and the geese) 245; 254, 258, 268,
(and Tao) 285, 318,
(at Hui Tzŭ's grave) 321,
(and the stickleback) 353,
(and the useless) 358,
(on Confucius) 365; 407, 427,
(death of) 434,
(his genius) 449
Chui, 115, 242
Chun Mang, 150
Chung, 332
Chung Yang, 116
Chü Ch'iao, 28
Chü Liang, 88
Chü Poh Yü, 49, 345
Ch'ü-to, 228
Chü Tzŭ, 442
Chü Tzŭ, Mt., 316
Chü Yüan, 50
Cicadas, 2, 258, 306,
(catching) 232
Class distinctions, 187
Classification, 168
Clouds and rain, 165, 173
Cocks and dogs, 117, 350
Cock-fighting, 238
Coffins, 53, 441
Cold, Latent, 319
Colossal, The, 204
Colour Sense, The, 99, 108, 115, 121, 155
Common-places, 154
Complacency, 402
Concentration, 34, 240, 300
Conditioned, The, 158
Confucius, 28, 38, 45, 55, 56,
(and the leper) 62, 83,
(and Lao Tzŭ) 144, 166, 182, 184, 188, 266,
282; 149, 179, 182, 201,
(in danger) 213, 251; 225,
(on concentration) 232, 235,
(at the cataract) 238; 253, 255, 263, 272, 274,
282, 290, 291, 325, 338, 341, 346,
(and Lao Lai Tzŭ) 356;
(changed his opinions) 365; 366,
(and Robber Chê) 387; 429
Conscription, 54
Cooks, 6, 33, 104
Correlatives, 207, 208
Corpse, (boy who impersonates) 6, 97;
(singing near a) 83
Cunning, 315
Crane's legs, A, 101, 332
Criteria (of our minds), 16,
(of Confucius), 166

Dark, Seeing in the, 139

Dark Palace, The, 77
Dark-Steep Mt., The, 276
Death. See Life and Death.
Death of Chuang Tzŭ's wife, 223
Destiny, 46, 64, 74, 90, 143, 189, 258
Determinate relations, 332
Dialecticians, 318
Dimensions, 202
Discontent, 402
Discord and accord, 320
Distance relative, 2
Diversity, 331
Divination, 357
Divine Man, 7, 85, 151, 193, 331, 361
Divine Teacher, The, 317
Do-nothing Say-nothing, 276
Doctrine of Silence, 56
Dogs, (straw) 180,
(how to judge of) 312, 327,
(why they bark) 350
Dog-tooth violet, 228
Doorkeepers, 320, 329
Doubts, 102, 117, 244, 334
Dove, young, 2, 306
Dragon, Lao Tzŭ a, 185
Dragons, 214, 263
Dragon-power, 122, 185
Dream, Life a, 30, 86
Dreamless sleep, 82, 192
Dregs of knowledge, 172
Drugs, 299, 331
Drunken man, A, 232
Duck's legs, A, 101
Duckweed, 228
Dust-bin, Spirit of the, 237
Duty, 46, 88, 101, 108, 114, 121, 122, 133, 166,
277, 298, 307, 367, 433
Dying, No advantage in not, 15

Ear, The, 333

Earth, 161, 173, 223;
(music of) 12
Eel's habitat, The, 27, 295
Ego, Whence the, 14
Emotions, 308
Empyrean, The, 288
Energy, Hu Tzŭ shows his internal, 96
Enthusiasts, 330
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