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October 14, 2013 Day 268 of the Fifth Year - History

October 14, 2013 Day 268 of the Fifth Year - History

President Barack Obama and Vice President Joe Biden walk through the Rose Garden after a meeting at the White House, Oct. 14, 2013.

Day 268: The joy of the Lord

These chapters in Nehemiah are a foretaste of the final restoration we will experience in the new heaven and new earth! They depict the beautiful renewed relationship between God and His people. It begins with the people assembling together to hear the reading of the Law.

This was an important occasion. They had even built a platform on which Ezra would stand as he read. And as he read, the Levites were stationed throughout the crowd to ensure the people understood!

They read from the book, from the Law of God, clearly, and they gave the sense, so that the people understood the reading (Nehemiah 8:8).

After hearing and understanding the Law, the people wept over their sin (Neh. 8:9). This response from the people proves that they really understood what was read. Because then they could see how great their sin and the sins of their forefathers really were.

But Ezra and Nehemiah told the people not to weep – it was to be a day of celebration! The people were to rejoice over their renewed relationship with their God. It is in this context that Nehemiah says the well-known verse… “Do not be grieved, for the joy of the Lord is our strength” (Neh. 8:10).

What was the source of God’s joy? The humble repentance of His people!!

After the priests recounted Israel’s long and troublesome history (Neh. 9), they renewed their covenant relationship with God by committing to uphold the Mosaic Law (Neh. 10).

The gospel is found in the vivid details of this passage. God’s word should cause us to grieve over our sin. But we have a God who really loves us. We can approach His throne to find grace and forgiveness because of the value He places on His relationship with us! He rejoices over our repentance. He is happy to renew and restore us… And from God’s joy, we are given the strength to stand – forgiven – in His presence!

May our penitent hearts be his joy, and may His grace be our strength!

Social Security

Harwell G. Davis, Individually and as Collector of Internal Revenue for the District of Alabama, Respondent.

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

Mr. Justice CARDOZO delivered the opinion of the Court.

The validity of the tax imposed by the Social Security Act on employers of eight or more is here to be determined.

Petitioner, an Alabama corporation, paid a tax in accordance with the statute, filed a claim for refund with the Commissioner of Internal Revenue, and sued to recover the payment ($46.14), asserting a conflict between the statute and the Constitution of the United States. Upon demurrer the District Court gave judgment for the defendant dismissing the complaint, and the Circuit Court of Appeals for the Fifth Circuit affirmed. - F. (2d) -. The decision is in accord with judgments of the Supreme Judicial Court of Massachusetts (Howes Brothers Co. v. Massachusetts Unemployment Compensation Commission, December 30, 1936, 5 N. E. (2d) 720), the Supreme Court of California ( Gillum v . Johnson, November 25, 1936, 62 Pac. (2d) 1037), and the Supreme Court of Alabama (Beeland Wholesale Co. v. Kaufman , March 17, 1937, - Ala. -). It is in conflict with a judgment of the Circuit Court of Appeals for the First Circuit, from which one judge dissented. Davis v. Boston & Maine R. R. Co., April 14, 1937, - F. (2d) -. An important question of constitutional law being involved, we granted certiorari.

The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U. S. C., c. 7 (Supp.)) is divided into eleven separate titles, of which only Titles IX and III are so related to this case as to stand in need of summary.

The caption of Title IX is "Tax on Employers of Eight or More." Every employer (with stated exceptions) is to pay for each calendar year "an excise tax, with respect to having individuals in his employ", the tax to be measured by prescribed percentages of the total wages payable by the employer during the calendar year with respect to such employment. Section 901. One is not, however, an "employer" within the meaning of the act unless he employs eight persons or more. Section 907 (a). There are also other limitations of minor importance. The term "employment" too has its special definition, excluding agricultural labor, domestic service in a private home and some other smaller classes. Section 907 (c). The tax begins with the year 1936, and is payable for the first time on January 31, 1937. During the calendar year 1936 the rate is to be one per cent, during 1937 two per cent, and three per cent thereafter. The proceeds, when collected, go into the Treasury of the United States like internal-revenue collections generally. Section 905 (a). They are not earmarked in any way. In certain circumstances, however, credits are allowable. Section 902. If the taxpayer has made contributions to an unemployment fund under a state law, he may credit such contributions against the federal tax, provided, however, that the total credit allowed to any taxpayer shall not exceed 90 per centum of the tax against which it is credited, and provided also that the state law shall have been certified to the Secretary of the Treasury by the Social Security Board as satisfying certain minimum criteria. Section 902. The provisions of Section 903 defining those criteria are stated in the margin. (1) Some of the conditions thus attached to the allowance of a credit are designed to give assurance that the state unemployment compensation law shall be one in substance as well as name. Others are designed to give assurance that the contributions shall be protected against loss after payment to the state. To this last end there are provisions that before a state law shall have the approval of the Board it must direct that the contributions to the state fund be paid over immediately to the Secretary of the Treasury to the credit of the "Unemployment Trust Fund." Section 904 establishing this fund is quoted below. (2) For the moment it is enough to say that the Fund is to be held by the Secretary of the Treasury, who is to invest in government securities any portion not required in his judgment to meet current withdrawals. He is authorized and directed to pay out of the Fund to any competent state agency such sums as it may duly requisition from the amount standing to its credit. Section 904 (f).

Title III, which is also challenged as invalid, has the caption "Grants to States for Unemployment Compensation Administration." Under this title, certain sums of money are "authorized to be appropriated" for the purpose of assisting the states in the administration of their unemployment compensation laws, the maximum for the fiscal year ending June 30, 1936 to be $4,000,000, and $49,000,000 for each fiscal year thereafter. Section 301. No present appropriation is made to the extent of a single dollar. All that the title does is to authorize future appropriations. Actually only $2,250,000 of the $4,000,000 authorized was appropriated for 1936 (Act of Feb. 11, 1936, c. 49, 49 Stat. 1109, 1113) and only $29,000,000 of the $49,000,000 authorized for the following year. Act of June 22, 1936, c. 689, 49 Stat. 1597, 1605. The appropriations when made were not specifically out of the proceeds of the employment tax, but out of any moneys in the Treasury. Other sections of the title prescribe the method by which the payments are to be made to the state (Section 302) and also certain conditions to be established to the satisfaction of the Social Security Board before certifying the propriety of a payment to the Secretary of the Treasury. Section 303. They are designed to give assurance to the Federal Government that the moneys granted by it will not be expended for purposes alien to the grant, and will be used in the administration of genuine unemployment compensation laws.

The assault on the statute proceeds on an extended front. Its assailants take the ground that the tax is not an excise that it is not uniform throughout the United States as excises are required to be that its exceptions are so many and arbitrary as to violate the Fifth Amendment that its purpose was not revenue, but an unlawful invasion of the reserved powers of the states and that the states in submitting to it have yielded to coercion and have abandoned governmental functions which they are not permitted to surrender.

The objections will be considered seriatim with such further explanation as may be necessary to make their meaning clear.

First: The tax, which is described in the statute as an excise, is laid with uniformity throughout the United States as a duty, an impost or an excise upon the relation of employment.

1. We are told that the relation of employment is one so essential to the pursuit of happiness that it may not be burdened with a tax. Appeal is made to history. From the precedents of colonial days we are supplied with illustrations of excises common in the colonies. They are said to have been bound up with the enjoyment of particular commodities. Appeal is also made to principle or the analysis of concepts. An excise, we are told, imports a tax upon a privilege employment, it is said, is a right, not a privilege, from which it follows that employment is not subject to an excise. Neither the one appeal nor the other leads to the desired goal.

As to the argument from history: Doubtless there were many excises in colonial days and later that were associated, more or less intimately, with the enjoyment or the use of property. This would not prove, even if no others were then known, that the forms then accepted were not subject to enlargement. Cf. Pensacola Telephone Co. v. Western Union Telegraph Co., 96 U. S. 1, 9 In re Debs, 158 U. S. 564, 591 South Carolina v. United States, 199 U. S. 437, 448, 449. But in truth other excises were known, and known since early times. Thus in 1695 (6 & 7 Wm. III, c. 6), Parliament passed an act which granted "to His Majesty certain Rates and Duties upon Marriage, Births and Burials", all for the purpose of "carrying on the War against France with Vigour." See Opinion of the Justices, 196 Mass. 602, 609. No commodity was affected there. The industry of counsel has supplied us with an apter illustration where the tax was not different in substance from the one now challenged as invalid. In 1777, before our Constitutional Convention, Parliament laid upon employers an annual "duty" of 21 shillings for "every male Servant" employed in stated forms of work. (3) Revenue Act of 1777, 17 George III, c. 39 (4) The point is made as a distinction that a tax upon the use of male servants was thought of as a tax upon a luxury. Davis v. Boston & Maine R. R. Co., supra. It did not touch employments in husbandry or business. This is to throw over the argument that historically an excise is a tax upon the enjoyment of commodities. But the attempted distinction, whatever may be thought of its validity, is inapplicable to a statute of Virginia passed in 1780. There a tax of three pounds, six shillings and eight pence was to be paid for every male tithable above the age of twenty-one years (with stated exceptions), and a like tax for "every white servant whatsoever, except apprentices under the age of twenty one years." 10 Hening's Statutes of Virginia, p. 244. Our colonial forbears knew more about ways of taxing than some of their descendants seem to be willing to concede. (5)

The historical prop failing, the prop or fancied prop of principle remains. We learn that employment for lawful gain is a "natural" or "inherent" or "inalienable" right, and not a "privilege" at all. But natural rights, so called, are as much subject to taxation as rights of less importance. (6) An excise is not limited to vocations or activities that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right. What the individual does in the operation of a business is amenable to taxation just as much as what he owns, at all events if the classification is not tyrannical or arbitrary. "Business is as legitimate an object of the taxing powers as property." City of Newton v. Atchison, 31 Kan. 151, 154 (per Brewer, J.). Indeed, ownership itself, as we had occasion to point out the other day, is only a bundle of rights and privileges invested with a single name. Henneford v. Silas Mason Co., Inc. , March 29, 1937, - U. S. -. "A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively." Ibid. Employment is a business relation, if not itself a business. It is a relation without which business could seldom be carried on effectively. The power to tax the activities and relations that constitute a calling considered as a unit is the power to tax any of them. The whole includes the parts. Nashville C. & St. L. By. Co. v. Wallace, 288 U. S. 249, 267, 268.

The subject matter of taxation open to the power of the Congress is as comprehensive as that open to the power of the states, though the method of apportionment may at times be different. "The Congress shall have power to lay and collect taxes, duties, imposts and excises". Art. 1, Sect. 8. If the tax is a direct one, it shall be apportioned according to the census or enumeration. If it is a duty, impost, or excise, it shall be uniform throughout the United States. Together these classes include every form of tax appropriate to sovereignty. Cf. Burnet v. Brooks, 288 U. S. 378, 403, 405 Brushaber v. Union Pacific R.. R.. Co., 240 U. S. 1, 12. Whether the tax is to be classified as an "excise" is in truth not of critical importance. If not that, it is an "impost" ( Pollock v. Farmers' Loan and Trust Co., 158 U. S. 601, 622, 625 Pacific Insurance Co. v. Soule, 7 Wall. 433, 445), or a "duty" ( Veazie Bank v. Fenno , 8 Wall. 533, 546, 547 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429, 570 Knowlton v. Moore, 178 U. S. 41, 46). A capitation or other "direct" tax it certainly is not. "Although there have been from time to time intimations that there might be some tax which was not a direct tax nor included under the words 'duties, imposts and excises,' such a tax for more than one hundred years of national existence has as yet remained undiscovered, not-withstanding the stress of particular circumstances has invited thorough investigation into sources of powers." Pollock v. Farm ers' Loan and Trust Co., 157 U. S. 429, 557. There is no departure from that thought in later cases, but rather a new emphasis of it. Thus, in Thomas v. United States, 192 U. S. 363, 370, it was said of the words "duties, imposts and excises" that "they were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like." At times taxpayers have contended that the Congress is without power to lay an excise on the enjoyment of a privilege created by state law. The contention has been put aside as baseless. Congress may tax the transmission of property by inheritance or will, though the states and not Congress have created the privilege of succession. Knowlton v. Moore, supra, p. 58. Congress may tax the enjoyment of a corporate franchise, though a state and not Congress has brought the franchise into being. Flint v. Stone Tracy Co., 220 U. S. 108, 155. The statute books of the states are strewn with illustrations of taxes laid on occupations pursued of common right. (7) We find no basis for a holding that the power in that regard which belongs by accepted practice to the legislatures of the states, has been denied by the Constitution to the Congress of the nation.

2. The tax being an excise, its imposition must conform to the canon of uniformity. There has been no departure from this requirement. According to the settled doctrine the uniformity exacted is geographical, not intrinsic. Knowlton v. Moore, supra, p. 83 Flint v. Stone Tracy Co., supra, p. 158 Billings v. United States, 232 U. S. 261, 282 Stellwagen v. Clum , 245 U. S. 605, 613 LaBelle Iron Works v. United States, 256 U. S. 377, 392 Poe v. Seaborn, 282 U. S. 101, 117 Wright v. Vinton Branch Mountain Trust Bank, March 29, 1937, - U. S. -. "The rule of liability shall be the same in all parts of the United States." Florida v. Mellon, 273 U. S. 12, 17.

Second: The excise is not invalid under the provisions of the Fifth Amendment by force of its exemptions.

The statute does not apply, as we have seen, to employers of less than eight. It does not apply to agricultural labor, or domestic service in a private home or to some other classes of less importance. Petitioner contends that the effect of these restrictions is an arbitrary discrimination vitiating the tax.

The Fifth Amendment unlike the Fourteenth has no equal protection clause. LaBelle Iron Works v. United States, supra Brushaber v. Union Pacific R.. R. Co., supra, p. 24. But even the states, thought subject to such a clause, are not confined to a formula of rigid uniformity in framing measures of taxation. Swiss Oil Corp. v. Shanks, 273 U. S. 407, 413. They may tax some kinds of property at one rate, and others at another, and exempt others altogether. Bell's Gap R. R.. Co. v. Pennsylvania , 134 U. S. 232 Stebbins v. Riley , 268 U. S. 137, 142 Ohio Oil Co. v. Conway, 281 U. S. 146, 150. They may lay an excise on the operations of a particular kind of business, and exempt some other kind of business closely akin thereto. Quong Wing v. Kirkendall, 223 U. S. 59, 62 American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 94 Armour Packing Co. v. Lacy, 200 U. S. 226, 235 Brown-Forman Co. v. Kentucky , 217 U. S. 563, 573 Heisler v. Thomas Colliery Co., 260 U. S. 245, 255 State Board of Tax Commissioners v. Jackson, 283 U. S. 527, 537, 538. If this latitude of judgment is lawful for the states, it is lawful, a fortiori, in legislation by the Congress, which is subject to restraints less narrow and confining. Quong Wing v. Kirkendall, supra.

The classifications and exemptions directed by the statute now in controversy have support in considerations of policy and practical convenience that cannot be condemned as arbitrary. The classifications and exemptions would therefore be upheld if they had been adopted by a state and the provisions of the Fourteenth Amendment were invoked to annul them. This is held in two cases passed upon today in which precisely the same provisions were the subject of attack, the provisions being, contained in the Unemployment Compensation Law of the State of Alabama. Carmichael v. Southern Coal & Coke Co., No. 724, - U. S. -, and Carmichael v. Gulf States Paper Corp., No. 797, - U. S. -. The opinion rendered in those cases covers the ground fully. It would be useless to repeat the argument. The act of Congress is therefore valid, so far at least as its system of exemptions is concerned, and this though we assume that discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.

Third: The excise is not void as involving the coercion of the States in contravention of the Tenth Amendment or of restrictions implicit in our federal form of government.

The proceeds of the excise when collected are paid into the Treasury at Washington, and thereafter are subject to appropriation like public moneys generally. Cincinnati Soap Co. v. United States, May 3, 1937, - U. S. -. No presumption can be indulged that they will be misapplied or wasted. (8) Even if they were collected in the hope or expectation that some other and collateral good would be furthered as an incident, that without more would not make the act invalid. Sonzinsky v. United States, March 29, 1937, - U. S. -. This indeed is hardly questioned. The case for the petitioner is built on the contention that here an ulterior aim is wrought into the very structure of the act, and what is even more important that the aim is not only ulterior, but essentially unlawful. In particular, the 90 per cent credit is relied upon as supporting that conclusion. But before the statute succumbs to an assault upon these lines, two propositions must be made out by the assailant. Cincinnati Soap Co. v. United States, supra. There must be a showing in the first place that separated from the credit the revenue provisions are incapable of standing by themselves. There must be a showing in the second place that the tax and the credit in combination are weapons of coercion, destroying or impairing the autonomy of the states. The truth of each proposition being essential to the success of the assault, we pass for convenience to a consideration of the second, without pausing to inquire whether there has been a demonstration of the first.

To draw the line intelligently between duress and inducement there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. West Coast Hotel Co. v. Parrish, March 29, 1937, - U. S. -. The relevant statistics are gathered in the brief of counsel for the Government. Of the many available figures a few only will be mentioned. During the years 1929 to 1936, when the country was passing through a cyclical depression, the number of the unemployed mounted to unprecedented heights. Often the average was more than 10 million at times a peak was attained of 16 million or more. Disaster to the breadwinner meant disaster to dependents. Accordingly the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare. Cf. United States v. Butler, 297 U. S. 1, 65, 66, Helvering v. Davis, decided herewith. The nation responded to the call of the distressed. Between January 1, 1933 and July 1, 1936, the states (according to statistics submitted by the Government) incurred obligations of $689,291,802 for emergency relief local subdivisions an additional $775,675,366. In the same period the obligations for emergency relief incurred by the national government were $2,929,307,125, or twice the obligations of states and local agencies combined. According to the President's budget message for the fiscal year 1938, the national government expended for public works and unemployment relief for the three fiscal years 1934, 1935, and 1936, the stupendous total of $8,681,000,000. The parens patriae has many reasons-fiscal and economic as well as social and moral-for planning to mitigate disasters that bring these burdens in their train.

In the presence of this urgent need for some remedial expedient, the question is to be answered whether the expedient adopted has overlept the bounds of power. The assailants of the statute say that its dominant end and aim is to drive the state legislatures under the whip of economic pressure into the enactment of unemployment compensation laws at the bidding of the central government. Supporters of the statute say that its operation is not constraint, but the creation of a larger freedom, the states and the nation joining in a cooperative endeavor to avert a common evil. Before Congress acted, unemployment compensation insurance was still, for the most part, a project and no more. Wisconsin was the pioneer. Her statute was adopted in 1931. At times bills for such insurance were introduced elsewhere, but they did not reach the stage of law. In 1935 four states (California, Massachusetts, New Hampshire and New York) passed unemployment laws on the eve of the adoption of the Social Security Act, and two others did likewise after the federal act and later in the year. The statutes differed to some extent in type, but were directed to a common end. In 1936, twenty-eight other states fell in line, and eight more the present year. But if states had been holding back before the passage of the federal law, inaction was not owing, for the most part, to the lack of sympathetic interest. Many held back through alarm lest in laying such a toll upon their industries, they would place themselves in a position of economic disadvantage as compared with neighbors or competitors. See House Report, No. 615, 74th Congress, 1st session, p. 8 Senate Report, No. 628, 74th Congress, 1st session, p. 11. (9) Two consequences ensued. One was that the freedom of a state to contribute its fair share to the solution of a national problem was paralyzed by fear. The other was that in so far as there was failure by the states to contribute relief according to the measure of their capacity, a disproportionate burden, and a mountainous one, was laid upon the resources of the Government of the nation.

The Social Security Act is an attempt to find a method by which all these public agencies may work together to a common end. Every dollar of the new taxes will continue in all likelihood to be used and needed by the nation as long as states are unwilling, whether through timidity or for other motives, to do what can be done at home. At least the inference is permissible that Congress so believed, though retaining undiminished freedom to spend the money as it pleased. On the other hand fulfillment of the home duty will be lightened and encouraged by crediting the taxpayer upon his account with the Treasury of the nation to the extent that his contributions under the laws of the locality have simplified or diminished the problem of relief and the probable demand upon the resources of the fisc. Duplicated taxes, or burdens that approach them, are recognized hardships that government, state or national, may properly avoid. Henneford v. Silas Mason Co., Inc ., supra Kidd v. Alabama , 188 U. S. 730, 732 Watson v. State Comptroller, 254 U. S. 122, 125. If Congress believed that the general welfare would better be promoted by relief through local units than by the system then in vogue, the cooperating localities ought not in all fairness to pay a second time.

Who then is coerced through the operation of this statute? Not the taxpayer. He pays in fulfilment of the mandate of the local legislature. Not the state. Even now she does not offer a suggestion that in passing the unemployment law she was affected by duress. See Carmichael v. Southern Coal & Coke Co., supra Carmichael v. Gulf States Paper Corp., supra. For all that appears she is satisfied with her choice, and would be sorely disappointed if it were now to be annulled. The difficulty with the petitioner's contention is that it confuses motive with coercion. "Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed." Sonzinsky v. United States, supra. In like manner every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible. Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems. The wisdom of the hypothesis has illustration in this case. Nothing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation. Even on that assumption the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree, at times, perhaps, of fact. The point had not been reached when Alabama made her choice. We cannot say that she was acting, not of her unfettered will but under the strain of a persuasion equivalent to undue influence, when she chose to have relief administered under laws of her own making, by agents of her own selection, instead of under federal laws, administered by federal officers, with all the ensuing evils, at least to many minds, of federal patronage and power. There would be a strange irony, indeed, if her choice were now to be annulled on the basis of an assumed duress in the enactment of a statute which her courts have accepted as a true expression of her will. Beeland Wholesale Co. v. Kaufman, supra. We think the choice must stand.

In ruling as we do, we leave many questions open. We do not say that a tax is valid, when imposed by act of Congress, if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power. No such question is before us. In the tender of this credit Congress does not intrude upon fields foreign to its function. The purpose of its intervention, as we have shown, is to safeguard its own treasury and as an incident to that protection to place the states upon a footing of equal opportunity. Drains upon its own resources are to be checked obstructions to the freedom of the states are to be leveled. It is one thing to impose a tax dependent upon the conduct of the taxpayers, or of the state in which they live, where the conduct to be stimulated or discouraged is unrelated to the fiscal need subserved by the tax in its normal operation, or to any other end legitimately national. The Child Labor Tax Case, 259 U. S. 20, and Hill v. Wallace, 259 U. S. 44, were decided in the belief that the statutes there condemned were exposed to that reproach. Cf. United States v. Constantine, 296 U. S. 287. It is quite another thing to say that a tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents. In such circumstances, if in no others, inducement or persuasion does not go beyond the bounds of power. We do not fix the outermost line. Enough for present purposes that wherever the line may be, this statute is within it. Definition more precise must abide the wisdom of the future.

Florida v. Mellon , 273 U. S. 12, supplies us with a precedent, if precedent be needed. What was in controversy there was section 301 of the Revenue Act of 1926, which imposes a tax upon the transfer of a decedent's estate, while at the same time permitting credit, not exceeding 80 per cent, for "the amount of any estate, inheritance, legacy or succession taxes actually paid to any State or Territory". Florida challenged that provision as unlawful. Florida had no inheritance taxes and alleged that under its constitution it could not levy any . 273 U. S. 12, 15. Indeed, by abolishing inheritance taxes, it had hoped to induce wealthy persons to become its citizens. See 67 Cong. Rec., Part 1, pp. 735, 752. It argued at our bar that "the Estate Tax provision was not passed for the purpose of raising federal revenue" (273 U. S. 12, 14), but rather "to coerce States into adopting estate or inheritance tax laws." 273 U. S. 12, 13. In f act, as a result of the 80 per cent credit, material changes of such laws were made in 36 states. (10) In the face of that attack we upheld the act as valid. Cf. Massachusetts v. Mellon, 262 U. S. 447, 482 also Act of August 5, 1861, c. 45, 12 Stat. 292 Act of May 13, 1862, c. 66, 12 Stat. 384.

United States v. Butler, supra, is cited by petitioner as a decision to the contrary. There a tax was imposed on processors of farm products, the proceeds to be paid to farmers who would reduce their acreage and crops under agreements with the Secretary of Agriculture, the plan of the act being to increase the prices of certain farm products by decreasing, the quantities produced. The court held (1) that the so-called tax was not a true one (pp. 56, 61), the proceeds being earmarked for the benefit of farmers complying with the prescribed conditions, (2) that there was an attempt to regulate production without the consent of the state in which production was affected, and (3) that the payments to farmers were coupled with coercive contracts (p. 73), unlawful in their aim and oppressive in their consequences. The decision was by a divided court, a minority taking the view that the objections were untenable. None of them is applicable to the situation here developed.

(a) The proceeds of the tax in controversy are not earmarked for a special group.

(b) The unemployment compensation law which is a condition of the credit has had the approval of the state and could not be a law without it.

(c) The condition is not linked to an irrevocable agreement, for the state at its pleasure may repeal its unemployment law (Section 903 (a) (6) ), terminate the credit, and place itself where it was before the credit was accepted.

(d) The condition is not directed to the attainment of an unlawful end, but to an end, the relief of unemployment, for which nation and state may lawfully cooperate.

Fourth: The statute does not call for a surrender by the states of powers essential to their quasi-sovereign existence.

Argument to the contrary has its source in two sections of the act. One section (903 (11) ) defines the minimum criteria to which a state compensation system is required to conform if it is to be accepted by the Board as the basis for a credit. The other section (904 (12) ) rounds out the requirement with complementary rights and duties. Not all the criteria or their incidents are challenged as unlawful. We will speak of them first generally, and then more specifically in so far as they are questioned.

A credit to taxpayers for payments made to a State under a state unemployment law will be manifestly futile in the absence of some assurance that the law leading to the credit is in truth what it professes to be. An unemployment law framed in such a way that the unemployed who look to it will be deprived of reasonable protection is one in name and nothing more. What is basic and essential may be assured by suitable conditions. The terms embodied in these sections are directed to that end. A wide range of judgment is given to the several states as to the particular type of statute to be spread upon their books. For anything to the contrary in the provisions of this act they may use the pooled unemployment form, which is in effect with variations in Alabama, California, Michigan, New York, and elsewhere. They may establish a system of merit ratings applicable at once or to go into effect later on the basis of subsequent experience. Cf. Sections 909, 910. They may provide for employee contributions as in Alabama and California, or put the entire burden upon the employer as in New York. They may choose a system of unemployment reserve accounts by which an employer is permitted after his reserve has accumulated to contribute at a reduced rate or even not at all.

This is the system which had its origin in Wisconsin. What they may not do, if they would earn the credit, is to depart from those standards which in the judgment of Congress are to be ranked as fundamental. Even if opinion may differ as to the fundamental quality of one or more of the conditions, the difference will not avail to vitiate the statute. In determining essentials Congress must have the benefit of a fair margin of discretion. One cannot say with reason that this margin has been exceeded, or that the basic standards have been determined in any arbitrary fashion. In the event that some particular condition shall be found to be too uncertain to be capable of enforcement, it may be severed from the others, and what is left will still be valid.

We are to keep in mind steadily that the conditions to be approved by the Board as the basis for a credit are not provisions of a contract, but terms of a statute, which may be altered or repealed. Section 903 (a) (6). The state does not bind itself to keep the law in force. It does not even bind itself that the moneys paid into the federal fund will be kept there indefinitely or for any stated time. On the contrary, the Secretary of the Treasury will honor a requisition for the whole or any part of the deposit in the fund whenever one is made by the appropriate officials. The only consequence of the repeal or excessive amendment of the statute, or the expenditure of the money, when requisitioned, for other than compensation uses or administrative expenses, is that approval of the law will end, and with it the allowance of a credit, upon notice to the state agency and an opportunity for hearing. Section 903 (b) (c).

These basic considerations are in truth a solvent of the problem. Subjected to their test, the several objections on the score of abdication are found to be unreal.

Thus, the argument is made that by force of an agreement the moneys when withdrawn must be "paid through public employment offices in the State or through such other agencies as the Board may approve." Section 903 (a) (1). But in truth there is no agreement as to the method of disbursement. There is only a condition which the state is free at pleasure to disregard or to fulfill. Moreover, approval is not requisite if public employment offices are made the disbursing instruments. Approval is to be a check upon resort to "other agencies" that may, perchance, be irresponsible. A state looking for a credit must give assurance that her system has been organized upon a base of rationality.

There is argument again that the moneys when withdrawn are to be devoted to specific uses, the relief of unemployment, and that by agreement for such payment the quasi-sovereign position of the state has been impaired, if not abandoned. But again there is confusion between promise and condition. Alabama is still free, without breach of an agreement, to change her system over night. No officer or agency of the national Government can force a compensation law upon her or keep it in existence. No officer or agency of that Government, either by suit or other means, can supervise or control the application of the payments.

Finally and chiefly, abdication is supposed to follow from section 904 of the statute and the parts of section 903 that are complementary thereto. Section 903 (a) (3). By these the Secretary of the Treasury is authorized and directed to receive and hold in the Unemployment Trust Fund all moneys deposited therein by a state agency for a state unemployment fund and to invest in obligations of the United States such portion of the Fund as is not in his judgment required to meet current withdrawals. We are told that Alabama in consenting to that deposit has renounced the plenitude of power inherent in her statehood.

The same pervasive misconception is in evidence again. All that the state has done is to say in effect through the enactment of a statute that her agents shall be authorized to deposit the unemployment tax receipts in the Treasury at Washington. Alabama Unemployment Act of September 14, 1935, section 10 (i). The statute may be repealed. Section 903 (a) (6). The consent may be revoked. The deposits may be withdrawn. The moment the state commission gives notice to the depositary that it would like the moneys back, the Treasurer will return them. To find state destruction there is to find it almost anywhere. With nearly as much reason one might say that a state abdicates its functions when it places the state moneys on deposit in a national bank.

There are very good reasons of fiscal and governmental policy why a State should be willing to make the Secretary of the Treasury the custodian of the fund. His possession of the money and his control of investments will be an assurance of stability and safety in times of stress and strain. A report of the Ways an Means Committee of the House of Representatives, quoted in the margin, develops the situation clearly. (13) Nor is there risk of loss or waste. The credit of the Treasury is at all times back of the deposit, with the result that the right of withdrawal will be unaffected by the fate of any intermediate investments, just as if a checking account in the usual form had been opened in a bank.

The inference of abdication thus dissolves in thinnest air when the deposit is conceived of as dependent upon a statutory consent, and not upon a contract effective to create a duty. By this we do not intimate that the conclusion would be different if a contract were discovered. Even sovereigns may contract without derogating from their sovereignty. Perry v . United States, 294 U. S. 330, 353 1 Oppenheim, International Law, 4th ed., 493, 494 Hall, International Law, 8th ed., 107 2 Hyde, International Law, 489. The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another. Constitution, Art. 1, section 10, par. 3. Poole V. Fleeger, 11 Pet. 185, 209 Rhode Island v. Massachusetts, 12 Pet. 657, 725. We find no room for doubt that they may do the like with Congress if the essence of their statehood is maintained without impairment. (14) Alabama is seeking and obtaining a credit of many millions in favor of her citizens out of the Treasury of the nation. Nowhere in our scheme of government-in the limitations express or implied of our federal constitution-do we find that she is prohibited from assenting to conditions that will assure a fair and just requital for benefits received. But we will not labor the point further. An unreal prohibition directed to an unreal agreement will not vitiate an act of Congress, and cause it to collapse in ruin.

Fifth: Title III of the act is separable from Title IX, and its validity is not at issue.

The essential provisions of that title have been stated in the opinion. As already pointed out, the title does not appropriate a dollar of the public moneys. It does no more than authorize appropriations to be made in the future for the purpose of assisting states in the administration of their laws, if Congress shall decide that appropriations are desirable. The title might be expunged, and Title IX would stand intact. Without a severability clause we should still be led to that conclusion. The presence of such a clause (Section 1103) makes the conclusion even clearer. Williams v. Standard Oil Co., 278 U. S. 235, 242 Utah Power & Light Co. v. Pfost, 286 U. S. 165, 184 Carter v. Carter Coal Co., 298 U. S. 238, 312.

(1) Sec. 903. (a) The Social Security Board shall approve any State law submitted to it, within thirty days of such submission, which it finds provides that-

[1] All compensation is to be paid through public employment offices in the State or such other agencies as the Board may approve:

[2] No compensation shall be payable with respect to any day of unemployment occurring within two years after the first day of the first period with respect to which contributions are required

[3] All money received in the unemployment fund shall immediately upon such receipt be paid over to the Secretary of the Treasury to the credit of the Unemployment Trust Fund established by Section 904

[4] All money withdrawn from the Unemployment Trust Fund by the State agency shall be used solely in the payment of compensation, exclusive of expenses of administration

[5] Compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (A) If the position offered is vacant due directly to a strike, lockout or other labor dispute (B) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality (C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization

[6] All the rights, privileges, or immunities conferred by such law or by acts done pursuant thereto shall exist subject to the power of the legislature to amend or repeal such law at any time.

The Board shall, upon approving such law, notify the Governor of the State of its approval.

(b) On December 31 in each taxable year the Board shall certify to the Secretary of the Treasury each State whose law it has previously approved, except that it shall not certify any State which, after reasonable notice and opportunity for hearing to the State agency, the Board finds has changed its law so that it no longer contains the provisions specified in subsection (a) or has with respect to such taxable year failed to comply substantially with any such provision.

(c) If, at any time during the taxable year, the Board has reason to believe that a State whose law it has previously approved, may not be certified under subsection (b), it shall promptly so notify the Governor of such State.

(2) Sec. 904. (a) There is hereby established in the Treasury of the United States a trust fund to be known as the "Unemployment Trust Fund", hereinafter in this title called the "Fund". The Secretary of the Treasury is authorized and directed to receive and hold in the Fund all moneys deposited therein by a State agency from the State unemployment fund. Such deposit may be made directly with the Secretary of the Treasury or with any Federal reserve bank or member bank of the Federal Reserve System designated by him for such purpose.

(b) It shall be the duty of the Secretary of the Treasury to invest such portion of the Fund as is not, in his judgment, required to meet current withdrawals. Such investment may be made only in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. For such purpose such obligations may be acquired (1) on original issue at par, or (2) by purchase of outstanding obligations at the market price. The purposes for which obligations of the United States may be issued under the Second Liberty Bond Act, as amended, are hereby extended to authorize the issuance at par of special obligations exclusively to the Fund. Such special obligations shall bear interest at a rate equal to the average rate of interest, computed as of the end of the calendar month next preceding the date of such issue, borne by all interest-bearing obligations of the United States then forming part of the public debt except that where such average rate is not a multiple or one-eighth of 1 per centum, the rate of interest of such special obligations shall be the multiple of one-eighth of 1 per centum next lower than such average rate. Obligations other than such special obligations may be acquired for the Fund only on such terms as to provide an investment yield not less than the yield which would be required in the case of special obligations if issued to the Fund upon the date of such acquisition.

(c) Any obligations acquired by the Fund (except special obligations issued exclusively to the Fund) may be sold at the market price, and such special obligations may be redeemed at par plus accrued interest.

(d) The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to and form a part of the Fund.

(e) The Fund shall be invested as a single fund, but the Secretary of the Treasury shall maintain a separate book account for each State agency and shall credit quarterly on March 31, June 30, September 30, and December 31, of each year, to each account, on the basis of the average daily balance of such account, a proportionate part of the earnings of the Fund for the quarter ending on such date.

(f) The Secretary of the Treasury is authorized and directed to pay out of the Fund to any State agency such amount as it may duly requisition, not exceeding the amount standing to the account of such State agency at the time of such payment.

(3) The list of services is comprehensive. It included: "Maitre d' Hotel, House-steward, Master of the Horse, Groom of the Chamber, Valet de Chambre, Butler, Under-butler, Clerk of the Kitchen, Confectioner, Cook, House-porter, Footman, Running-footman, Coachman, Groom, Postillion, Stable-boy, and the respective Helpers in the Stables of such Coachman, Groom, or Postillion, or in the Capacity of Gardener (not being a Day-labourer), Park-keeper, Gamekeeper, Huntsman, "Whipper-in. . . ".

( 4) The statute, amended from time to time, but with its basis structure unaffected, is on the statute books today. Act of 1803, 43 George III, c. 161 Act of 1812, 52 George III, c. 93 Act of 1853, 16 & 17 Viet., c. 90 Act of 1869, 32 & 33 Viet., c. 14. 21 Halsbury's Laws of England, 1st ed., pp. 692 et seq.

( 5) See also the following laws imposing occupation taxes: 12 Hening's Statutes of Virginia, p. 285, Act of 1786 Chandler, The Colonial Records of Georgia, vol. 19, Part 2, p. 88, Act of :1778 1 Potter, Taylor and Yancey, North Carolina Revised Laws, p. 501, Act of 1784.

(6) The cases are brought together by Professor John MacArthur Maguire in an essay, "Taxing the Exercise of Natural Rights" (Harvard Legal Essays, 1934, pp. 273, 322).

The Massachusetts decisions must be read in the light of the particular definitions and restrictions of the Massachusetts Constitution. Opinions of the Justices, 282 Mass. 619, 622 266 Mass. 590, 593. And see Howes Brothers Co. v. Massachusetts Unemployment Compensation Commission, supra , pp. 730, 731.

(7) Alabama General Acts, 1935, c. 194, Art. XIII (flat license tax on occupations) Arizona Revised Code, Supplement (1936) 3138a et seq. (general gross receipts tax) Connecticut General Statutes, Supplement (1935) 457c, 458c (gross receipts tax on unincorporated businesses) Revised Code of Delaware (1935) 192-197 (flat license tax on occupations) Compiled Laws of Florida, Permanent Supplement (1936) Vol. I, 1279 (flat license tax on occupations) Georgia Laws, 1935, p. 11 (flat license tax on occupations) Indiana Statutes Ann. (1933) 64-2601 et seq. (general gross receipts tax) Louisiana Laws, 3rd Extra Session, 1934, Act No. 15, 1st Extra Session, 1935, Acts Nos. 5, 6 (general gross receipts tax) Mississippi Laws., 1934, c. 119 (general gross receipts tax) New Mexico Laws, 1935, c. 73 (general gross receipts tax) South Dakota Laws, 1933, c. 184 (general gross receipts tax expired June 30, 1935) Washington Laws, 1935, c. 180, Title II (general gross receipts tax) West Virginia Code, Supplement (1935) 960 (general gross receipts tax).

(8) The total estimated receipts without taking into account the 90 per cent deduction, range from $225,000,000 in the first year to over $900, 000,000 seven years later. Even if the maximum credits are available to taxpayers in all states, the maximum estimated receipts from Title IX will range between $22,000,000, at one extreme, to $90,000,000 at the other. If some of the states hold out in their unwillingness to pass statutes of their own, the receipts will be still larger.

(9) The attitude of Massachusetts is significant. Her act became a law Aug 12, 1935, two days before the federal act. Even so, she prescribed that provisions should not become operative unless the federal bill became a law and unless eleven of the following states (Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Maine, Maryland, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, Vermont) should impose on their employers burdens substantially equivalent. Acts of 1935 , c. 479, p. 655. Her fear of competition is thus forcefully attested. See also California Laws, 1935, c. 352, Art. 1, 2 Idaho Laws, 1936 (Third Extra Session) c. 12, 26 Mississippi Laws 1936 c. 176 Sec. 2-a.

(10) Perkins, State action under the Federal Estate Tax Credit Clause, 13

North Carolina L. Rev. 271, 280.

(13) "This last provision will not only afford maximum safety for these funds but is very essential to insure that they will operate to promote the stability of business rather than the reverse. Unemployment reserve funds have the peculiarity that the demands upon them fluctuate considerably, being heaviest when business slackens. If, in such times, the securities in which these funds are invested are thrown upon the market for liquidation, the net effect is likely to be increased deflation. Such a result is avoided in this bill through the provision that all reserve funds are to be held by the United States Treasury, to be invested and liquidated by the Secretary of the Treasury in a manner calculated to promote business stability. When business conditions are such that investment in securities purchased on the open market is unwise, the Secretary of the Treasury may issue special nonnegotiable obligations exclusively to the unemployment trust fund. When a reverse situation exists and heavy drains are made upon the fund for payment of unemployment benefits, the Treasury does not have to dispose of the securities belonging to the fund in open market but may assume them itself. With such a method of handling the reserve funds, it is believed that this bill will solve the problem often raised in discussions of unemployment compensation, regarding the possibility of transferring purchasing power from boom periods to depression periods. It will in fact operate to sustain purchasing power at the onset of a depression without having any counteracting deflationary tendencies." House Report, No. 615, 74th Congress, lst session, p. 9.


No#. Visual Analysis of the Painting by Picasso—Seated Man—1911 [MoMA Exh. No#, January 1–January 30, 1940]

94. Paintings and Sculpture from the Museum Collection [MoMA Exh. #94, January 12–March 3, 1940]

95. Smithsonian Competition [MoMA Exh. #95, January 12–March 3, 1940]

96. Twelve Favorites: Paintings Selected by Students from the Museum Collection [MoMA Exh. #96, January 31–March 1, 1940]

96a. Paris at War: 16 Gouaches by Bernard Lamotte [MoMA Exh. #96a, Early 1940–specific opening or closing dates unknown]

97. Modern Masters from European and American Collections [MoMA Exh. #97, January 26–March 24, 1940]

98. Italian Masters [MoMA Exh. #98, January 26–April 7, 1940]

99. Four American Traveling Exhibitions [MoMA Exh. #99, April 3–April 28, 1940]

100. Preview: Dance Archives [MoMA Exh. #100, March 6–April 7, 1940]

101. Visual and Non-Visual Expression in Art [MoMA Exh. #101, March 6–May 1, 1940]

102. New Acquisitions: A Gift of Modern Sculpture [MoMA Exh. #102, March 6–April 7, 1940]

103. The Work of Sharaku [MoMA Exh. #103, April 3–May 1, 1940]

104. American Designs for Abstract Film [MoMA Exh. #104, April 3–May 1, 1940]

105. PM Competition: The Artist as Reporter [MoMA Exh. #105, April 15–May 7, 1940]

106. Twenty Centuries of Mexican Art [MoMA Exh. #106, May 15–September 30, 1940]

107. New Acquisitions: American Painting and Sculpture [MoMA Exh. #107, July 26–October 18, 1940]

108. Portinari of Brazil [MoMA Exh. #108, October 9–November 17, 1940]

109. Machine Art Modern Interiors Original Costume Design [MoMA Exh. #109, October 3–November 2, 1940]

110. Painting and Sculpture from the Museum Collection [MoMA Exh. #110, October 23, 1940–January 12, 1941]

111. Forty Years of the American Dance [MoMA Exh. #111, October 23–November 19, 1940]

112. Graphic Arts: Designing a Stage Setting [MoMA Exh. #November 4–November 11, 1940]

113. Student Work from Fourteen High Schools [MoMA Exh. #113, November 11–December 23, 1940]

114. Frank Lloyd Wright, American Architect [MoMA Exh. #114, November 13, 1940–January 5, 1941]

115. D.W. Griffith, American Film Master [MoMA Exh. #115, November 13, 1940–January 5, 1941]

116. The Ballet Today [MoMA Exh. #116, November 14, 1940–March 5. 1941]

117. Useful Objects of American Design under $10 [MoMA Exh. #117, November 26–December 24, 1940]

118. American Color Prints under $10 [MoMA Exh. #118, November 26–December 28, 1940]

119. War Comes to the People: A Story Written With The Lens [MoMA Exh. #119, December 10, 1940–January 5, 1941]

120. We Like Modern Art [MoMA Exh. #120, December 27, 1940–January 12, 1941]

121. Sixty Photographs: A Survey of Camera Esthetics [MoMA Exh. #121, December 31, 1940–Jan 12, 1941]

122. Pavlova Memorial Exhibition [MoMA Exh. #122, January 7–March 6, 1941]

123. Indian Art of the United States [MoMA Exh. #123, January 22–April 27, 1941]

123a. American Scene: 35 Gouaches by Witold Gordon [MoMA Exh. #123a, January 31–February 14, 1941]

124. New Acquisitions: American Painting and Sculpture [MoMA Exh. #March 10–May 3, 1941]

125. T.V.A. Architecture and Design [MoMA Exh. #125, April 30–June 7, 1941]

126. New Acquisitions: A Gift of Paintings from a Trustee [MoMA Exh. #126, May 6–October 15, 1941]

127. Painting and Sculpture from the Museum Collection [MoMA Exh. #127, May 6–April 30, 1941] Closing date unknown

128. Understanding Modern Art [MoMA Exh. #128, May 6–June 30, 1941]

129. Still Photographs from Hollywood Studios [MoMA Exh. #129, May 6–June 2, 1941]

130. Britain at War [MoMA Exh. #130, May 22–September 2, 1941]

131. New Acquisitions: European Paintings [MoMA Exh. #131, June 3–July 18, 1941]

132. Sculpture and Sculptor’s Drawings [MoMA Exh. #132, June 3–July 18, 1941]

133. A History of American Movies [MoMA Exh. #133, June 5–October 3, 1941]

134. A History of the Modern Poster [MoMA Exh. #134, June 11–June 26, 1941]

135. Paul Klee [MoMA Exh. #135, June 30–July 27, 1941]

136. Animals in Art Designing a Stage Setting [MoMA Exh. #136, July 1–July 15, 1941]

137. Abstract Painting Shapes of Things [MoMA Exh. #137, July 15–July 28, 1941]

138. Masterpieces of Picasso [MoMA Exh. #138, July 16–September 7, 1941]

139. National Defense Poster Competition [MoMA Exh. #139, July 16–September 7, 1941]

140. New Acquisitions: Fantastic Art, Dada, Surrealism [MoMA Exh. #140, July 23–September 29, 1941]

141. Preliminary Course of the Bauhaus [MoMA Exh. #141, July 29–August 11, 1941]

141a. Techniques of Painting [MoMA Exh. #141a, August 4–October 15, 1941]

142. Stockholm Builds [MoMA Exh. #142, August 4–September 8, 1941]

143. American Watercolors Lettering and Arrangements in Poster Design [MoMA Exh. #143, August 12–August 25, 1941]

144. Ancestral Sources of Modern Painting [MoMA Exh. #144, August 26–September 15, 1941]

145. Photographs by David Octavius Hill and Robert Adamson [MoMA Exh. #145, September 9–October 19, 1941]

146. The Wooden House in America [MoMA Exh. #146, September 9–September 30, 1941]

147. Twenty Lithographs: Graphic Art Processes [MoMA Exh. #147, September 16–October 14, 1941]

148. Organic Design in Home Furnishings [MoMA Exh. #148, September 24–November 9, 1941]

149. New Acquisition: Vincent van Gogh, The Starry Night [MoMA Exh. #149, September 30, 1941–July 28, 1943]

150. George Grosz [MoMA Exh. #150, October 8–November 2, 1941]

151. Buckminster Fuller’s Dymaxion Deployment Unit [MoMA Exh. #151, October 10, 1941–April 1, 1942]

152. What is Modern Architecture: Tricks in Movie Making [MoMA Exh. #152, October 14–October 27, 1941]

153. Modern Primitives: Artists of the People [MoMA Exh. #153, October 21, 1941–April 30, 1944]

154. Isadora Duncan: Drawings, Photographs, Memorabilia [MoMA Exh. #154, October 21, 1941–January 10, 1942]

155. Image of Freedom [MoMA Exh. #155, October 29, 1941–February 1, 1942]

156. Children of England Paint [MoMA Exh. #156, November 6–November 30, 1941]

157. Joan Miró [MoMA Exh. #157, November 19, 1941–January 11, 1942]

158. Salvador Dalí [MoMA Exh. #158, November 19, 1941–January 11, 1942]

159. Architecture of Eric Mendelsohn, 1914–1940 [MoMA Exh. #159, November 26, 1941–January 4, 1942]

160. Useful Objects Under $10 [MoMA Exh. #160, December 2, 1941–January 4, 1942]

161. Silk Screen Prints Under $10 [MoMA Exh. #161, December 2, 1941–January 4, 1942]

162. American Photographs at $10 [MoMA Exh. #162, December 2, 1941–January 4, 1942]

163. Introduction to Modern Painting: Modern Posters [MoMA Exh. #163, December 3–December 7, 1941]

163a. Sculpture by Maillol, to Celebrate his 80th Birthday [MoMA Exh. #163a, December 8, 1941–unknown closing date]

164. Pictures for Children [MoMA Exh. #164, December 10, 1941–Jan 25, 1942]

165. New Acquisitions: Latin-American Art [MoMA Exh. #165, January 13–February 15, 1942]

166. New Acquisitions: Photographs [MoMA Exh. #166, January 13–February 25, 1942]

167. Dancers in Movement: Photographs by Gjon Mili [MoMA Exh. #167, January 13–April 9, 1942]

168. Americans 1942: 18 Artists from 9 States [MoMA Exh. #168, January 21–March 8, 1942]

169. The Artists’ New York [MoMA Exh. #169, January 28–March 2, 1942]

170. U.S. Army Illustrators of Fort Custer, Michigan [MoMA Exh. #170, February 4–March 10, 1942]

171. New Acquisitions: American Drawings [MoMA Exh. #171, February 18–April 5, 1942]

172. Photographs of the Civil War and the American Frontier [MoMA Exh. #172, March 3–April 5, 1942]

173. Children’s Festival of Modern Art [MoMA Exh. #173, March 11–May 10, 1942]

174. Art in War: OEM Purchases from a National Competition [MoMA Exh. #174, March 13–March 25, 1942]

175. Henri Rousseau [MoMA Exh. #175, March 18–May 3, 1942]

176. New Acquisitions and Extended Loans: Cubist and Abstract Art [MoMA Exh. #176, March 25–May 3, 1942]

177. Two Years of War in England: Photographs by William Vandivert [MoMA Exh. #177, April 15–June 10, 1942]

178. Wartime Housing [MoMA Exh. #178, April 22–June 21, 1942]

179. Art Sale for the Armed Services [MoMA Exh. #179, May 6–June 16, 1942]

180. Anti-Hoarding Pictures by New York School Children [MoMA Exh. #180, May 13–June 8, 1942]

181. Mexican Costumes by Carlos Mérida [MoMA Exh. #181, May 13–May 24, 1942]

182. Road to Victory [MoMA Exh. #182, May 21–October 4, 1942]

183. Paintings from the Class for Members’ Children [MoMA Exh. #183, May 25–May 31, 1942]

184. Understanding Modern Art [MoMA Exh. #184, June 2–July 9, 1942]

185. Josephine Joy: Romantic Painter [MoMA Exh. #185, June 12–October 7, 1942]

186. New Acquisitions: Free German Art [MoMA Exh. #186, June 24–August 24, 1942]

187. Salvage Posters by New York High School Students [MoMA Exh. #187, June 24–September 3, 1942]

188. New Rugs by American Artists [MoMA Exh. #188, June 30–August 9, 1942]

189. Bambi: The Making of an Animated Sound Picture [MoMA Exh. #189, July 15–August 20, 1942]

190. Camouflage for Civilian Defense [MoMA Exh. #190, August 12–September 13, 1942]

191. Planning a Modern House [MoMA Exh. #191, August 25–September 21, 1942]

192. New Acquisitions: American Painting and Sculpture [MoMA Exh. #192, August 26–September 27, 1942]

193. New Posters from England [MoMA Exh. #193, September 4–October 18, 1942]

194. Modern Architecture for the Modern School [MoMA Exh. #194, September 16–September 30, 1942]

195. How to make a Photogram [MoMA Exh. #195, September 16–November 2, 1942]

196. How Modern Artists Paint People [MoMA Exh. #196, September 22–October 13, 1942]

197. Recent Acquisitions: Painting and Sculpture [MoMA Exh. #197, September 30–December 10, 1942]

198. The Americas Cooperate [MoMA Exh. #198, September 30–October 18, 1942]

199. 20th Century Sculpture and Constructions [MoMA Exh. #199, October 2–October 26, 1942]

200. Art of Two Cities: Chicago and New York [MoMA Exh. #200, October 14–November 15, 1942]

201. United Hemisphere Poster Competition [MoMA Exh. #201, October 21–November 24, 1942]

202. The Museum and the War [MoMA Exh. #202, October 23, 1942–January 22, 1943]

203. Tchelitchew: Paintings and Drawings [MoMA Exh. #203, October 28–November 29, 1942]

204. The Sculpture of John B. Flannagan [MoMA Exh. #204, October 28–November 29, 1942]

205. Art from Fighting China [MoMA Exh. #205, November 11–November 27, 1942]

206. Children’s Painting and the War [MoMA Exh. #206, November 18–December 13, 1942]

207. National War Poster Competition [MoMA Exh. #207, November 25, 1942–January 3, 1943]

208. Useful Objects in Wartime under $10 [MoMA Exh. #208, December 2, 1942–January 9, 1943]

209. Twentieth Century Portraits [MoMA Exh. #209, December 9, 1942–January 24, 1943]

210. New Acquisitions: Photography by Alfred Stieglitz, European and American Art [MoMA Exh. #210, December 16, 1942–February 28, 1943]

211. Children’s Festival of Modern Art [MoMA Exh. #211, December 16, 1942–January 17, 1943]

212. Joe Milone’s Shoe Shine Stand [MoMA Exh. #212, December 22, 1942–January 10, 1943]

213. Brazil Builds [MoMA Exh. #213, January 13–February 28, 1943]

214. Art Education in Wartime [MoMA Exh. #214, January 27–February 22, 1943]

215. Faces and Places in Brazil: Photographs by Genevieve Naylor [MoMA Exh. #215, January 27–February 28, 1943]

216. The Arts in Therapy [MoMA Exh. #216, February 3–March 7, 1943]

217. Americans 1943: Realists and Magic-Realists [MoMA Exh. #217, February 10–March 21, 1943]

218. We Look at Our World [MoMA Exh. #218, February 24–April 4, 1943]

219. New Acquisitions: The Eternal City by Peter Blume [MoMA Exh. #219, March 3–March 17, 1943]

220. Birds in Color: Flashlight Photographs by Eliot Porter [MoMA Exh. #220, March 10–April 18, 1943]

221. Helen Levitt: Photographs of Children [MoMA Exh. #221, March 10–April 18, 1943]

222. Yank Illustrates the War [MoMA Exh. #222, March 17–April 18, 1943]

223. Five California Houses [MoMA Exh. #223, March 17–April 18, 1943]

224. The Latin-American Collection of the Museum of Modern Art [MoMA Exh. #224, March 31–June 6, 1943]

225. Paintings from the Class for Members’ Children [MoMA Exh. #225, April 7–May 9, 1943]

226. Religious Folk Art of the Southwest [MoMA Exh. #226, April 28–June 13, 1943]

227. Recent Acquisitions: May-Day Sketchbook of Diego Rivera Soviet Posters [MoMA Exh. #227, May 1–June 13, 1943]

228. War Caricatures by Hoffmeister and Peel [MoMA Exh. #228, May 12–June 13, 1943]

229. Five Paintings by Stanley Spencer [MoMA Exh. #May 12–May 31, 1943]

230. Favorites in Modern Art [MoMA Exh. #May 12–June 20, 1943]

231. Occupational Therapy: Its Function and Purpose [MoMA Exh. #231, June 2–October 17,1943]

232. Recent Acquisitions: The Work of Young Americans [MoMA Exh. #232, June 17–July 25, 1943]

233. Tunisian Triumph: War Photographs by Eliot Elisofon [MoMA Exh. #233, June 14–July 24, 1943]

234. The Paintings of Morris Hirshfield [MoMA Exh. #234, June 23–August 1, 1943]

235. Understanding Modern Art [MoMA Exh. #235, June 23–August 1, 1943]

236. Airways to Peace [MoMA Exh. #236, July 2–October 31, 1943]

236a. Guernica [MoMA Exh. #236a, July 26, 1943–unknown closing date]

237. Recent Acquisitions: European and American Paintings and Rugs [MoMA Exh. #237, July 28–September 26, 1943]

238. Art Shows for U.S.O. Centers [MoMA Exh. #238, August 4–Sepember 26, 1943]

239. Bali, Background for War: The Human Problem of Reoccupation [MoMA Exh. #239, August 11–September 19, 1943]

240. Action Photography [MoMA Exh. #240, August 18–September 19, 1943]

241. Magazine Cover Competition: Women in Necessary Civilian Employment [MoMA Exh. #241, September 3–Sepember 26, 1943]

242. Alexander Calder [MoMA Exh. #242, September 29, 1943–January 16, 1944]

243. Young Negro Art [MoMA Exh. #243, October 26–November 28, 1943]

No#. Informal Exhibition Fall 1943: Adams, Emerson, Stieglitz, Strand, Weston [MoMA Exh. No#, November 3, 1943–unknown closing date]

244. Portraits [MoMA Exh. #244, November 4–December 7, 1943]

245. Marines Under Fire [MoMA Exh. #245, November 10, 1943–January 9, 1944]

246. Romantic Painting in America [MoMA Exh. #246, November 17, 1943–February 6, 1944]

247. Children’s Holiday Circus of Modern Art [MoMA Exh. #247, December 8, 1943–January 3, 1944]

248. Christmas Sale of Pictures Under $75 [MoMA Exh. #248, December 8, 1943–January 9, 1944]

No#. Mexico: 8 Photographers [MoMA Exh. No#, December 13, 1943–unknown closing date]

249. New Acquisitions: 12 American Paintings [MoMA Exh. #249, January 19–March 26, 1944]

250. Norman Bel Geddes’ War Maneuver Models [MoMA Exh. #250, January 26–March 5, 1944]

251. Children’s Art Work from the Holiday Circus [MoMA Exh. #251, February 2–February 17, 1944]

252. Modern Drawings [MoMA Exh. #252, February 16–May 10, 1944]

No#. Pictorialism in Transition [MoMA Exh. No#, February 16–March 19, 1944]

253. Understanding the Child Through Art [MoMA Exh. #253, February 23–April 2, 1944]

254. The American Snapshot [MoMA Exh. #254, March 1–May 10, 1944]

255. Modern Cuban Painters [MoMA Exh. #255, March 17–May 7, 1944]

No#. New Workers I [MoMA Exh. No#, March 22–April 30, 1944]

256. Look at Your Neighborhood [MoMA Exh. #256, March 29–June 25, 1944]

257. Chinese Children’s War Pictures [MoMA Exh. #257, April 5–May 4, 1944]

257a. Pacific Report: Photos By Eugene Smith [MoMA Exh. #257a, May 10–June 30, 1944]

258. Art in Progress: 15th Anniversary Exhibitions

258a. Painting, Sculpture, Prints [MoMA Exh. #258a, May 24–October 15, 1944]

258b. Design for Use [MoMA Exh. #258b, May 24–October 22, 1944]

258c. Built in the U.S.A., 1932–44 [MoMA Exh. #258c, May 24–October 22, 1944]

258d. Dance and Theatre Design [MoMA Exh. #258d, May 24–September 17, 1944]

258e. Posters [MoMA Exh. #258e, May 24–September 17, 1944]

258f. Photography [MoMA Exh. #258f, May 24–Septmeber 17, 1944]

258g. Circulating Exhibitions [MoMA Exh. #258g, May 24–September 17, 1944]

258h. Educational Services [MoMA Exh. #258h, May 24–September 17, 1944]

258i. Film Library [MoMA Exh. #258i, May 24–September 17, 1944]

258j. Picasso Exhibition for Mexico City [MoMA Exh. #258j, June 26–September 10, 1944]

259. Hayter and Studio 17: New Directions in Gravure [MoMA Exh. #259, June 18–October 8, 1944]

260. Soviet Children’s Art [MoMA Exh. #260, September 19–November 19, 1944]

261. American Battle Painting 1776–1918 [MoMA Exh. #261, September 26–November 12, 1944]

262. Paintings by Jacob Lawrence [MoMA Exh. #262, October 10–November 5, 1944]

263. Marsden Hartley [MoMA Exh. #263, October 24, 1944–January 14, 1945]

264. Lyonel Feininger [MoMA Exh. #264, October 24, 1944–January 14, 1945]

265. Manzanar: Photographs by Ansel Adams of Loyal Japanese-American Relocation Center [MoMA Exh. #265, November 10, 1944–December 24, 1944]

266. Painting, Sculpture, Graphic Arts from the Museum Collection [MoMA Exh. #266, November 15, 1944–May 30, 1945]

267. Building with Wood [MoMA Exh. #267, November 15, 1944–February 18, 1945]

268. The War Years: Color Reproductions of Works by Picasso, Matisse, Bonnard 1939–1943 [MoMA Exh. #268, November 14–November 27, 1944]

269. Are Clothes Modern? [MoMA Exh. #269, November 28, 1944–March 4, 1945]

270. Children’s Holiday Circus of Modern Art [MoMA Exh. #270, December 6, 1944–January 7, 1945]

No#. From Sketch to Stage [MoMA Exh. No#, December 6, 1944–January 7, 1945]

271. Photographs from the Museum Collection [MoMA Exh. #271, December 11, 1944–February 18, 1945]

272. George Méliès: Magician and Film Pioneer [MoMA Exh. #272, December 27, 1944–January 14, 1945]

273. Works from the Children’s Holiday Circus of Modern Art [MoMA Exh. #273, January 16–February 18, 1945]

274. The Lesson of War Housing [MoMA Exh. #274, January 16–March 4, 1945]

275. Power in the Pacific: Battle Photographs of our Navy in Action on the Sea and in the Sky [MoMA Exh. #275, January 23–March 20, 1945]

No#. Private Exhibition for Trustees [MoMA Exh. No#, January 24, 1945–January 30, 1945]

276. Recent Acquisitions [MoMA Exh. #276, February 15–March 18, 1945]

277. French Photographs: Daguerre to Atget [MoMA Exh. #277, February 21–May 30, 1945]

278. Integrated Building: Kitchen, Bathroom, and Storage [MoMA Exh. #278, February 21–May 13, 1945]

279. Modern Art for Young People [MoMA Exh. #279, February 21–March 11, 1945]

280. What is Modern Painting? [MoMA Exh. #280, March 6–March 25, 1945]

280a. Creative Photography [MoMA Exh. #280a, March 6–March 25, 1945]

281. Development in Children’s Art [MoMA Exh. #281, March 14–May 13, 1945]

282. Piet Mondrian [MoMA Exh. #282, March 21–May 13, 1945]

283. Modern American Dance [MoMA Exh. #283, March 28–April 29, 1945]

284. Georges Rouault [MoMA Exh. #284, April 4–June 3, 1945]

285. Stage Design by Robert Edmund Jones [MoMA Exh. #285, April 11–June 24, 1945]

286. Paul Strand: Photographs 1915–1945 [MoMA Exh. #286, April 25–June 10, 1945]

287. Works from the Museum Collection of Dance and Theatre Design [MoMA Exh. #287, May 2–August 1, 1945]

288. Teaching Elements of Design to Children [MoMA Exh. #288, May 16–June 10, 1945]

289. Tomorrow’s Small House: Models and Plans [MoMA Exh. #289, May 29–September 30, 1945]

290. The Museum Collection of Painting and Sculpture [MoMA Exh. #290, June 20, 1945–January 13, 1946 (2nd floor) June 20, 1945–February 13, 1946 (3rd floor)]

290a. The Museum Collection of Photographs [MoMA Exh. #290a, June 20, 1945–c. June 23, 1946]

291. Children’s Art [MoMA Exh. #291, June 20–August 20, 1945]

292. Stage Designs by Joan Junyer [MoMA Exh. #292, July 10–September 12, 1945]

293. Fourteen Paintings by Vincent van Gogh [MoMA Exh. #293, August 3–August 26, 1945]

294. Young People’s Art [MoMA Exh. #294, August 23–September 13, 1945]

295. Textile Design [MoMA Exh. #295, August 29–September 23, 1945]

296. Costume Carnival [MoMA Exh. #296, September 19–November 25, 1945]

297. Art for War Veterans [MoMA Exh. #297, September 26–November 25, 1945]

298. Stuart Davis [MoMA Exh. #298, October 17, 1945–February 3, 1946]

299. Elements of Design [MoMA Exh. #299, October 23–November 15, 1945]

300. Useful Objects [MoMA Exh. #300, November 21, 1945–January 6, 1946]

301. Portraits of Ondine: Dance and Theatre Design [MoMA Exh. #301, November 28, 1945–February 3, 1946]

302. Museum of Modern Art Color Reproductions [MoMA Exh. #302, November 28, 1945–February 3, 1946]

303. Children’s Holiday Circus of Modern Art [MoMA Exh. #303, December 4, 1945–January 6, 1946]

304. If You Want to Build a House [MoMA Exh. #304, January 8–January 30, 1946]

305. Creative Art by American Children [MoMA Exh. #305, January 15–March 3, 1946]

306. Arts of the South Seas [MoMA Exh. #306, January 29–May 19, 1946]

307. New Dormitories for Smith College [MoMA Exh. #307, February 5–April 14, 1946]

308. Architecture in Steel: An Experiment in Standarization by Konrad Wachsmann [MoMA Exh. #308, February 5–March 6, 1946]

309. A Home for U.N.O.: Must We Repeat the Geneva Fiasco? [MoMA Exh. #309, February 5–March 3, 1946]

310. Recent Acquisitions in Painting and Sculpture [MoMA Exh. #310, February 6–February 24, 1946]

311. The Photographs of Edward Weston [MoMA Exh. #311, February 11–March 31, 1946]

312. The Museum Collection of Painting [MoMA Exh. #312, February 19–May 5, 1946]

313. The Museum Collection of Sculpture [MoMA Exh. #313, February 19–May 5, 1946]

314. New Furniture Designed by Charles Eames [MoMA Exh. #314, March 12–March 31, 1946 (1st section) March 12–April 14, 1946 (2nd section)]

315. Work from Children’s Classes Conducted Under the Educational Program [MoMA Exh. #315, March 12–April 10, 1946]

316. Marc Chagall [MoMA Exh. #316, April 9–June 23, 1946]

317. Original Illustrations of Children’s Books [MoMA Exh. #317, April 16–June 2, 1946]

318. Modern China [MoMA Exh. #318, April 16–June 9, 1946]

319. Georgia O’Keeffe [MoMA Exh. #319, May 14–August 25, 1946]

320. Designed for Children [MoMA Exh. #320, June 11–October 6, 1946]

321. A New Country House by Frank Lloyd Wright: Scale Model [MoMA Exh. #321, June 18–September 3, 1946]

322. New Photographers [MoMA Exh. #322, June 18–September 15, 1946]

323. Ballet Drawings by Franklin C. Watkins for “Transcendence” Model by Eugene Berman for “The Island God” [MoMA Exh. #323, June 18–August 25, 1946]

324. Paintings, Sculpture, and Graphic Arts from the Museum Collection [MoMA Exh. #324, July 2, 1946–unknown closing date]

325. Paintings from New York Private Collections [MoMA Exh. #325, July 2–September 22, 1946]

326. The Museum Collection of Photography [MoMA Exh. #326, July 2, 1946–September 6, 1947]

327. Scenic Design by Arch Lauterer [MoMA Exh. #327, August 27–November 7, 1946]

328. Design Trends in Unit Furniture, Fabric and Tableware [MoMA Exh. #328, September 6–November 17, 1946]

329. Fourteen Americans [MoMA Exh. #329, September 10–December 8, 1946]

330. Modern Handmade Jewelry [MoMA Exh. #330, September 17–November 17, 1946]

331. Recent Acquisitions in Painting and Sculpture [MoMA Exh. #331, September 24–November 17, 1946]

332. Florine Stettheimer [MoMA Exh. #332, October 1–November 17, 1946]

333. On Being a Cartoonist [MoMA Exh. #333, October 15–November 24, 1946]

334. Recent Acquisitions: 61 Lithographs by Toulouse-Lautrec and 31 Aquatints by Picasso for Buffon’s “Histoire Naturelle” [MoMA Exh. #334, November 19, 1946–January 14, 1947]

335. Le Tricorne by Picasso [MoMA Exh. #335, November 19, 1946–January 13, 1947]

336. Useful Objects [MoMA Exh. #336, November 26, 1946–January 26, 1947]

337. Modern Rooms of the Last Fifty Years [MoMA Exh. #337, November 26, 1946–January 26, 1947]

338. Children’s Holiday Fair of Modern Art [MoMA Exh. #338, December 3, 1946–January 5, 1947]

339. Henry Moore [MoMA Exh. #339, December 17, 1946–March 16, 1947]

340. Experiments in Mobile Design [MoMA Exh. #340, January 14–April 13, 1947]

341. The Theatre of Eugene Berman [MoMA Exh. #341, January 21–March 9, 1947]

342. 46 Recent Lithographs by Picasso [MoMA Exh. #342, January 28–April 6, 1947]

343. The Photographs of Henri Cartier Bresson [MoMA Exh. #343, February 4–April 6, 1947]

344. Henry Hobson Richardson, 1838–1886: Architectural Masterpieces [MoMA Exh. #344, February 4–May 26, 1947]

345. Printed Textiles for the Home [MoMA Exh. #345, March 11–June 15, 1947]

346. Large-Scale Modern Paintings [MoMA Exh. #346, April 1–May 4, 1947]

347. Drawings in the Collection of The Museum of Modern Art [MoMA Exh. #347, April 15–June 1, 1947]

348. Taliesin and Taliesin West [MoMA Exh. #348, April 15–June 15, 1947]

349. New Teaching Techniques: Basic Design and Foundation Courses [MoMA Exh. #349, April 25–May 14, 1947]

350. Art Work by Children and Young People from the Classes of the Educational Program [MoMA Exh. #350, May 20–October 13, 1947]

351a. Alfred Stieglitz Exhibition: His Photographs [MoMA Exh. #351a, June 10–September 21, 1947]

351b. Alfred Stieglitz Exhibition: His Collection [MoMA Exh. #351b, June 10–August 31, 1947]

352. Two Cities: Planning in North and South America [MoMA Exh. #352, June 24–September 21, 1947]

353. Robert Maillart: Engineer [MoMA Exh. #353, June 24–October 13, 1947]

354. Boris Aronson: Stage Designs and Models [MoMA Exh. #354, June 24–October 10, 1947]

355. New Acquisitions [MoMA Exh. #355, August 5–September 30, 1947]

356. Mies van der Rohe [MoMA Exh. #356, September 16, 1947–January 25, 1948]

357. 100 Useful Objects of Fine Design (available under $100) [MoMA Exh. #357, September 16, 1947–January 25, 1948]

358. Ben Shahn [MoMA Exh. #358, September 30, 1947–January 4, 1948]

359. Three Young Photographers [MoMA Exh. #359, September 30–December 7, 1947]

360. World of Illusion: Elements of Stage Design [MoMA Exh. #360, October 14, 1947–January 4, 1948]

361. Highlights from the Film Library [MoMA Exh. #361, October 14, 1947–January 4, 1948]

362. Art Materials for High Schools and Colleges [MoMA Exh. #362, October 15–November 24, 1947]

363. Children’s Holiday Fair of Modern Art [MoMA Exh. #363, December 2, 1947–January 4, 1948]

364. Music and Musicians [MoMA Exh. #364 December 16, 1947–February 23, 1948]

365a. New Acquisitions [MoMA Exh. #365a, January 13–March 21, 1948]

365b. Portraits of Gertrude Stein by Picasso [MoMA Exh. #365b, January 22–March 12, 1948]

366. Paintings by French Children [MoMA Exh. #366, January 13–March 21, 1948]

367. Work from Children’s Holiday Fair of Modern Art [MoMA Exh. #367, January 13–March 2, 1948]

368. Stage Designs for the Ballet Society [MoMA Exh. #368, January 20–April 18, 1948]

369. Naum Gabo and Antoine Pevsner [MoMA Exh. #369, February 10–April 25, 1948]

370. Miró Mural [MoMA Exh. #370, March 2–April 4, 1948]

371. Lamb Wedge Lock Handle [MoMA Exh. #371, March 2–May 16, 1948]

372. Young People’s Work from an English School [MoMA Exh. #372, March 16–April 18, 1948]

373. In and Out of Focus: A Survey of Today’s Photography [MoMA Exh. #373, April 6–July 11, 1948]

374. Art Work by Children of Other Countries [MoMA Exh. #374, April 23–May 23, 1948]

375. Museum of Modern Art Publications [MoMA Exh. #375, April 23–May 9, 1948]

376. Pierre Bonnard [MoMA Exh. #376, May 10–September 6, 1948]

377. Children’s and Young People’s Art Work from the Classes of the Educational Program [MoMA Exh. #377, May 19–August 22, 1948]

378. Louis Sullivan: 1856–1924 [MoMA Exh. #378, May 25–July 25, 1948]

379. Portraits in Prints [MoMA Exh. #379, June 1–September 6, 1948]

380. Loren MacIver Mural Paintings [MoMA Exh. #380, July 8–September 28, 1948]

381. New York Private Collections [MoMA Exh. #381, July 20–September 12, 1948]

382. 50 Photographs by 50 Photographers [MoMA Exh. #382, July 27–September 26, 1948]

383. Work from War Veterans’ Art Center [MoMA Exh. #383, September 1–October 10, 1948]

384. Recent Acquisitions: Bequest of Mrs. John D. Rockefeller, Jr. [MoMA Exh. #384, September 14–November 7, 1948]

384a. Bonnard, Picasso [MoMA Exh. #384a, September 14–October 31, 1948]

385. Collage [MoMA Exh. #385, September 21–December 5, 1948]

386. Photo-Secession (American Photography 1902–1910) [MoMA Exh. #386, September 29–November 28, 1948]

387. Print Gift of Victor S. Riesenfeld and Matisse: Jazz: Gift of the Artist [MoMA Exh. #387, October 1–October 31, 1948]

387a. Penthouse Furniture Exhibition [MoMA Exh. #387a, October 4–October 10, 1948]

388. Elie Nadelman [MoMA Exh. #388, October 5–November 28, 1948]

No#. Outdoor Sculpture at the Museum [MoMA Exh. No#, Autumn 1948–specific opening or closing dates unknown]

389. Paintings by Children 4–12 Years from New York Public Elementary Schools [MoMA Exh. #389, October 12–October 31, 1948]

390. Recent Acquisitions [MoMA Exh. #390, November 9, 1948–January 31, 1949]

391. Christmas Exhibition: Useful Objects Under $10 [MoMA Exh. #391, November 9, 1948–January 9, 1949]

392. Art in the Neighborhood: Focus on World Unity [MoMA Exh. #392, November 10, 1948–November 28, 1948]

393. Timeless Aspects of Modern Art [MoMA Exh. #393, November 16, 1948–January 23, 1949]

394. Photographs by Bill Brandt, Harry Callahan, Ted Croner, Lisette Model [MoMA Exh. #394, November 30, 1948–February 10, 1949]

395. Children’s Holiday Fair of Modern Art [MoMA Exh. #395, December 8, 1948–January 16, 1949]

396. American Paintings from the Museum Collection [MoMA Exh. #396, December 23, 1948–March 13, 1949]

397. Work by Children from the Holiday Fair: Ages 4–8 [MoMA Exh. #397, February 1–February 27, 1949]

398. Hidden Talent Competition [MoMA Exh. #398, February 1–March 6, 1949]

399. The Exact Instant [MoMA Exh. #399, February 8–May 1, 1949]

400. From Le Corbusier to Niemeyer: 1929–1949 [MoMA Exh. #400, February 15–April 3, 1949]

401. The 28th Annual Exhibition of Advertising and Editorial Art of the New York Art Directors Club [MoMA Exh. #401, March 15–April 17, 1949]

402. Pictures for Children Aged 3–12 Years [MoMA Exh. #402, March 18–April 17, 1949]

403. Georges Braque [MoMA Exh. #403, March 29–June 12, 1949]

404. Frank Lloyd Wright: A New Theatre [MoMA Exh. #404, April 5–April 17, 1949]

405. The House in the Museum Garden [MoMA Exh. #405, April 12–October 30, 1949]

406. Roots of Photography [MoMA Exh. #406, April 26–July 24, 1949]

407. Lobmeyr Glass [MoMA Exh. #407, April 26–July 4, 1949]

408. Work from the Museum’s Classes for NYC Public High Schools [MoMA Exh. #408, April 26–May 8, 1949]

409. Recent Acquisitions [MoMA Exh. #409, May 3–July 17, 1949]

410. Master Prints from the Museum Collection [MoMA Exh. #410, May 10–July 10, 1949]

411. Understanding Your Child Through Art: A Course for Parents [MoMA Exh. #411, May 17–May 30, 1949]

412. Teaching Materials for N.Y.C. Public High Schools [MoMA Exh. #412, June 7–July 20, 1949]

413. Twentieth Century Italian Art [MoMA Exh. #413, June 28–September 18, 1949]

414. Art Nouveau from the Museum Collection [MoMA Exh. #414, July 12–September 5, 1949]

415. Oskar Kokoschka [MoMA Exh. #415, July 19–October 4, 1949]

416. Realism in Photography [MoMA Exh. #416, July 26–September 25, 1949]

417. Prints by Gauguin, Vuillard, and Bonnard [MoMA Exh. #417, July 26–September 25, 1949]

418. Sculpture by Painters [MoMA Exh. #418, August 3–October 5, 1949]

419. Painting and Sculpture in Architecture [MoMA Exh. #419, August 3–October 2, 1949]

420. Postage Stamp Design [MoMA Exh. #420, August 3–October 7, 1949]

421. Anni Albers Textiles [MoMA Exh. #421, September 14–November 6, 1949]

422. Work from Art Classes [MoMA Exh. #422, September 30–October 30, 1949]

423. Modern Art in Your Life [MoMA Exh. #423, October 5–December 4, 1949]

424. New Posters from 16 Countries [MoMA Exh. #424, October 11–November 20, 1949]

425. Photographs by Margaret Bourke-White, Helen Levitt, Dorothea Lange, Tana Hoban, Esther Bubley, and Hazel-Frieda Larsen [MoMA Exh. #425, October 11–November 15, 1949]

426. Recent Acquisitions [MoMA Exh. #426, October 25, 1949–January 22, 1950]

427. Polio Poster Competition [MoMA Exh. #427, October 31–November 20, 1949]

428. Paintings by Japanese Children, Aged 6–12 [MoMA Exh. #428, November 2–November 27, 1949]

429. Design Show: Christmas 1949 [MoMA Exh. #429, November 15, 1949–January 8, 1950]

430. Paintings from the Museum Collection [MoMA Exh. #430, November 29, 1949–April 30, 1950]

431. Roots of French Photography [MoMA Exh. #431, November 29, 1949–January 15, 1950]

432. Children’s Holiday Carnival of Modern Art [MoMA Exh. #432, December 6, 1949–March 26, 1950]

433. Paul Klee [MoMA Exh. #433, December 20, 1949–February 19, 1950]

61 thoughts on &ldquo Top of the Tree in October? &rdquo

and what will be from 1 to 14 October?

the question is, what will be in the second part in October… but I guess we won’t find out till 15th Oct. :-)

Time to get myself the Obj.268

Hell yeah finally I get my 268 with best penetration and camo ratings ever!

Woras on September 30, 2013 at 4:12 pm said:

I just checked Asia Server and the Obj. 268 will be the first half of October Top of the Tree.

ye you read it wrong, 268 ends on 14th

Ah, my mistake, you are right.

Actually, it fits together. Look at the picture – they forgot to delete the description to the last part of the first top of tree in October. Then there is a gap and then starts the second part…

Great! better than Foch155 thats for sure. At least Obj268 can be penned from any angle.

It can also pen from any angle >.>

Only by other tier 10 TDs.

lol, 10.5cm L/68 pens it frontally w/o problem.

It has the IS 8 hull .. that can be pennned by any 210 + pen gun .

Karn is correct. So dont expect any wonders from 268 as from Foch’s. Not to mention it’s one of those TD’s that once spotted, thanks to it’s pike design, reversing back and steering left or right will only get one of your front sides penned even more easily.

it doesnt have the same hull… the angles on 268 are much better than on is-8 and the obj 268 has 240-250 effective on ufp, unlike 200-210 on is-8

this was meant for Karn’s comment :P

jez…i bough 268 with a 15% discount a few weeks ago :/
i expected object 140, is4 or 113. :D

Still no 113 … expected it in the 5th week, as I thought they switch through every nation

Don’t expect nothing, you know it’s WG

and for 2nd half?
M48 Patton would be nice ) It was the first tier 10 I unlocked but never got the creds to buy it lol.
Since then, i bough E-100, IS-7, IS4, Tpy E, Leopard but still no M48 lol

Good, i am at the isu-152. Obj268 here i come!

lol forgot to mention the 268, awesome machine, same to ISU and Obj 704, awesome line.
Alpha Dmg <3

Sure is, loved every minute of the ISU with BL10, Obj 704 is fun aswell, still need 200k XP to 268 though :( hard grind…

You mean long grind, the Obj 704 is a good tank, I wouldnt say that its a hard grind

Got obj 704 researched for months but never got to buying it, now I might :P
Kept ISU as an emergency tank, no matter how bad my day was, 700 dmg hits on tier8 always cheer me up even if I loose :)

That’s convenient as I’m currently grinding at Obj704.=)

Damn… still waiting for the british Heavy Top of the Tree… :-(

Time to get that 704 and watch all the qq

Jesus, more ISU-152 point&click players…

Just rebought my su-100 yesterday :( at least i have my su 152 researched

Awesome! Been holding off on the purchase of Obj.268 for several months…now I can get another T10 TD.

Damn for the last 5-6 top of the tree they managed to choose exactly what I don’t grind.Now the only tier 10 ‘s left on special which I don’t grind are t110e3, e-50m and FV 215b 183 so I hope for FV 215b, t110e4, object 263, is-4 or jagdpz e-100 soon

I can’t wait to have a survival rate in the low 30s the next 2 weeks!

i just bought Obj. 268 last week…my first tier 10…no!no!…all top tree/big and heavy have been a huge miss for me….i can’t belive this ( i also unlocked t44 10 days after the event for t62A expired)

I did the exact same thing. As soon as the T-62A was announced, I bought the 704. I figured that would give me 2-3 months to grind the 300K needed for the 268. Now they do this. Ah, well, I figure I can grind 150-200K between now and the end of the sale, and free XP the rest.

Well I bought the 268 two weeks ago as well.
On purpose.
I was like – hmm, now was russian med (T-62A), next one is Maus, so then will come french, maybe chinese… I was so wrong…

I had the 268 researched for a few weeks now. It’s my first tier 10. I had less than a mil credits so I wasn’t gonna grind out 6 million credits, so I waited for it to be Top of the Tree, and now it’s here :P

Knew it was worth it to wait on buying the 704

LOL. Yeah same here. Researched it but thought i’d wait a bit and see if it comes on sale/top of tree. Pays to be patient sometimes.

704 is way better than 278

That’s okay, it wasn’t like I was saving money for the Churchill Black Prince.

ISU, 704 and 268 are in hangar, loaded and ready to roll out. October will be hot.

Lulz, I still ned another 90k exp to open 704 QQ

Prepare u pants, guys. Legion of ISU is coming

okay. i guess its time for the heavys to slumber in their garage again…the amount of goldshells wont be fun with them. time to use and abuse myself or drive leopard only :P

so far they’ve had…
Glorious USSR: IS-7, T-62a, 268 = 3
Murica: T110E5, T57 = 2
Le France: Foch 155, Batchat = 2
Fascist box tanks: E-100, Leopard 1, Maus = 3
Dem British folk: FV4200 med thing = 1
China = 0

Anyone know what’ll be next?
I’m guessing either 121/113/Fatton/50B
Or Jpz100 to troll everyone, Lul

Chuckles, does this explain why the NA Server has seen both Soviet premium tank destroyers on sale repeatedly recently?

Wargaming has run the following for its ‘On The Track/Top of the Track’ series, thus far:

T57 Heavy

Leopard I

Tank Destroyer
AMX 50 Foch 155

Next up the Soviet Object 268, you say.

Soviet, IS-4
UK, FV215b
French, AMX 50B
Chinese, 113

French, Bat Chatillion 25t
Soviet, Object 140
German, E-50M
USA, M48A1
Chinese, 121

Tank Destroyers
USA, T110E3
Soviet, Object 263
UK, FV215b 183
USA, T110E4
German, Jagdpz E-100

UK, Conqueror Gun Carriage
Soviet, Object 261
USA, T92
French, Bat Chatillion 155 58
German, GW E 100

Cleaving Through Creatures (DMG p272)

This optional rule states that if your mêlée attack reduces an undamaged creature to zero hit points in one blow, then any excess damage carries over to another target within reach (as long as the initial attack roll was high enough to hit the second target). For example, a standard goblin has 7 hit points. If three attack the PC barbarian and the barbarian hits one goblin for 18 damage, then that one blow will kill two goblins and inflict 4 damage on the third. This only applies if the foes are unwounded to begin with. You have to make a mighty swing that kills in one blow.

The reason that I don’t want to use this variant, is because 5th edition has been billed as a game where low level monsters remain threats to the PCs into high levels. A bunch of six orcs is still to be taken seriously by a ninth level PC. This optional rule makes it a bit too easy for high level mêlée combatants to despatch numerous low-level foes. I could be wrong, but my gut is telling me to avoid this one. If you want to create a character than can cleave through its opponents you still have the option of taking the Great Weapon Master feat – it’s not quite the same, but it’s thematically similar.

Europe 1917: Collapse of the Eastern Front

The Brusilov Offensive was to be Russia's last major campaign of the War. Its nearest ally, Romania, was quickly occupied while the Russian Empire's own political, economic, and military troubles would lead to an overthrow of its government in March.

Main Events

29 Sep 1916 Greek National Schism▲

The outbreak of World War I greatly escalated tensions between the Greek King Constantine I, who favored neutrality, and Prime Minister Eleftherios Venizelos, who favored entering the war on the side of the Allies. In 1915, Constantine dismissed Venizelos, who established a rival government, the Provisional Government of National Defense, in Allied-occupied Thessaloniki the following year. in wikipedia

5 Nov 1916 Act of 5th November▲

On 5 November 1916, Emperors Wilhelm II of Germany and Franz Joseph of Austria-Hungary proclaimed the establishment of the Kingdom of Poland, comprising most of what had been Congress Poland. Although many of the Allies supported Polish independence, the proclamation was merely a pretext to conscript Polish troops into the war against Russia, with eventual plans to annex much of the territory. in wikipedia

6 Dec 1916 Central Powers occupy Bucharest▲

Just four months after entering the war, Romanian forces were forced to retreat east by the Austrians and Germans led by Field Marshal August von Mackensen. On 6 December, the Central Powers entered Bucharest, forcing the Romanian government to retreat to Iași. in wikipedia

Mary, mother of the Son of God

Many do not realize that according to some ancient texts, Mary may have been betrothed to Joseph when she was about the same age as Helen Mar Kimball when Helen was married to Joseph Smith. The Gospel of James (also referred to as the Infancy Gospel of James or the Protoevangelium of James), recounts the story of Mary’s upbringing. While this text is considered “apologetic” material and it’s authorship likely occurred no earlier than the 2nd century, this apocryphal text reveals insights into Jewish culture and the “acceptable” age for marriage. This account claims Mary was consecrated to the Lord and served in the Temple. When she reached the age of twelve years old, she was betrothed to Joseph.

And when she was twelve years old there was held a council of the priests, saying: Behold, Mary has reached the age of twelve years in the temple of the Lord. What then shall we do with her, lest perchance she defile the sanctuary of the Lord? . . . And the priest said to Joseph, You have been chosen by lot to take into your keeping the virgin of the Lord. But Joseph refused, saying: I have children, and I am an old man, and she is a young girl. I am afraid lest I become a laughing-stock to the sons of Israel. And the priest said to Joseph: Fear the Lord your God, and remember what the Lord did to Dathan, and Abiram, and Korah how the earth opened, and they were swallowed up on account of their contradiction. And now fear, O Joseph, lest the same things happen in your house. And Joseph was afraid, and took her into his keeping.

According to this “Gnostic gospel”, Mary was two years younger than Helen Mar Kimball at the time of her sealing and Joseph, her betrothed, was an “old man”. Whether or not the account is accurate, the story reveals the customary age for marriage in the ancient past.The apocryphal text History of Joseph the Carpenter (likely dating to the late 7th or early 7th centuries) is believed to have been based on material from the Gospel of James. It similarly recounts:

Now when righteous Joseph became a widower, my mother Mary, blessed, holy, and pure, was already twelve years old. For her parents offered her in the temple when she was three years of age, and she remained in the temple of the Lord nine years. Then when the priests saw that the virgin, holy and God-fearing, was growing up, they spoke to each other, saying: Let us search out a man, righteous and pious, to whom Mary may be entrusted until the time of her marriage lest, if she remain in the temple, it happen to her as is wont to happen to women, and lest on that account we sin, and God be angry with us.

Therefore they immediately sent out, and assembled twelve old men of the tribe of Judah. And they wrote down the names of the twelve tribes of Israel. And the lot fell upon the pious old man, righteous Joseph. Then the priests answered, and said to my blessed mother: Go with Joseph, and be with him till the time of your marriage. Righteous Joseph therefore received my mother, and led her away to his own house. And Mary found James the Less in his father’s house, broken-hearted and sad on account of the loss of his mother, and she brought him up. Hence Mary was called the mother of James. Luke 24:10 Thereafter Joseph left her at home, and went away to the shop where he wrought at his trade of a carpenter. And after the holy virgin had spent two years in his house her age was exactly fourteen years, including the time at which he received her.

Jewish culture allowed women to embrace the opportunities that came with adulthood and motherhood at a far earlier age. One author sources the Talmud stating:

B. Sanh while arguing that a young girl should not be married to an old man or to an infant son, urges that daughters should be married when they reach puberty, and the same position is taken with respect to sons. 7

The Gospel of Pseudo-Matthew (“pseudo” because scholars do not believe it was written by Matthew, the early apostle) places Mary’s age at fourteen years old.

Now it came to pass, when she was fourteen years old, . . . Abiathar the high priest rose, and mounted on a higher step, that he might be seen and heard by all the people and when great silence had been obtained, he said: Hear me, O sons of Israel, and receive my words into your ears. Ever since this temple was built by Solomon, there have been in it virgins, the daughters of kings and the daughters of prophets, and of high priests and priests and they were great, and worthy of admiration. But when they came to the proper age they were given in marriage, and followed the course of their mothers before them, and were pleasing to God. . . .

. . . all the people congratulated the old man [Joseph], saying: You have been made blessed in your old age, O father Joseph, seeing that God has shown you to be fit to receive Mary. And the priests having said to him, Take her, because of all the tribe of Judah you alone hast been chosen by God Joseph began bashfully to address them, saying: I am an old man, and have children why do you hand over to me this infant, who is younger than my grandsons? Then Abiathar the high priest said to him: Remember, Joseph, how Dathan and Abiron and Core perished, because they despised the will of God. So will it happen to you, if you despise this which is commanded you by God.

In this text, Mary’s age is referred to as the “proper age” and it is noted that she must follow “the course of their mothers before them”. The Gospel of the Nativity of Mary, a recast of the Pseudo-Matthew, also speaks of Mary’s “advancing age”.

Now the virgin of the Lord, with advancing age, also made progress in virtue . . . She came, therefore, to her fourteenth year, and not only could they devise against her no evil, nor anything worthy of blame, but all good men who knew her judged her life and conversation worthy of admiration. Then the chief priest publicly announced that the virgins who were publicly placed in the temple, and had arrived at this time of life, should return home and seek to be married, according to the custom of the nation, and the maturity of their age. 8

Notice that Mary’s age is referred to as “advancing age” and that it was time for her to be married “according to the custom of the nation, and the maturity of [her] age.” Could the repulsion felt by many modernists when hearing of Helen Mar Whitney’s sealing at fourteen be merely a matter of cultural tradition and convention?

Race and the Origins of Plantation Slavery

“Twenty and odd” Africans arrived in Virginia aboard a Dutch vessel in 1619 shortly after permanent colonization of the English Americas began. There has been significant academic debate about whether the enslavement of peoples of African descent in England’s early 17th-century colonies was an inevitable or “unthinking decision” and about the nature and degree of anti-black racism during the 17th century. The legal and social status of African peoples was more flexible at first in the English colonies than it later became. Some Africans managed to escape permanent enslavement and a few Africans, such as Anthony Johnson, even owned servants of their own. There was no legal basis for enslavement in the British Americas for the first several decades of settlement and slave and servant codes emerged only gradually. Labor systems operated by custom rather than through any legal mechanisms of coercion. Most workers in the Americas experienced degrees of coercion. In the earliest years of plantation production, peoples from Africa, Europe, and the Americas often toiled alongside each other in the fields. Large numbers of Native Americans were captured and forced to work on plantations in the English Americas and many whites worked in agricultural fields as indentured and convict laborers. There were a wide variety of different kinds of coerced labor beyond enslavement in the 17th century and ideas about racial difference had yet to become as determinative as they would later be. As the staple crop plantation system matured and became entrenched on the North American mainland in the late 17th and early 18th centuries and planters required a large and regular supply of slaves, African laborers became synonymous with large-scale plantation production. The permeable boundaries between slavery and freedom disappeared, dehumanizing racism became more entrenched and U.S.-based planters developed slave codes premised on racial distinctions and legal mechanisms of coercion that were modeled on Caribbean precedents.



Rise of Plantation Slavery

Systems of slavery and forced labor were pervasive throughout the Atlantic World in the late 16th and early 17th centuries but they existed in various forms and for an array of purposes. Enslavement could be a permanent or a temporary condition and a wide range of peoples could be subject to captivity, forced labor, or enslavement as they moved through the Atlantic World. Forms of bondage and captivity were used with captives of war, as payment or collateral for debt and even as punishment for crime or as a means of moral redemption. 1 The form of racialized slavery in the Americas in which Africans were viewed as labor units and as chattel and used primarily on plantations to produce specialized crops for foreign markets was unique among systems of slavery. 2

The fully formed plantation complex in the Americas had several key characteristics. Plantations were large-scale capitalist enterprises that were manned by forced laborers (chiefly African slaves) that needed to be regularly resupplied and they produced staple crops for foreign markets. They also normally had plantation populations that were not self-reproducing and, for the most part, they were subject to the political authority of European governments. Plantation owners and managers kept their large enslaved populations under control with draconian punishments they limited their workers’ mobility and dehumanized them to a status nearly akin to livestock. They developed slave codes to help institutionalize racism and other forms of social control to buttress the plantation system. 3 The plantation complex drove the economic development of the Americas and had a transformative impact on the ecology, economy, culture, and social structure of the European colonies that formed in the Americas. The plantation complex that had its archetype in places like Barbados in the late 17th century, or Jamaica and St. Domingue in the 18th century or Cuba in the 19th century had not fully matured in the early 17th century at the outset of English colonization in the United States.

By the early 17th century, there had been a transition in the Iberian Atlantic, particularly in Brazil, towards a mature plantation complex as sugar plantations moved across the ocean from the Atlantic Islands. The production of sugar was first wed to slavery and large-scale agricultural enterprise in the Mediterranean in the 13th century and then this nascent plantation complex moved to the Atlantic Islands off the coast of Africa, closer to an emerging African labor supply for a labor-intensive and brutal crop. 4 Sugar agriculture migrated again to northeastern Brazil in the second half of the 16th century. 5 The Brazilians began by trying to use indigenous Brazilian labor but disease among that group and overwork soon destroyed the effort. Although Brazilian planters continued to use Natives as labor (even after such practice was banned in 1570 ), they turned to the transatlantic African slave trade to supply sugar plantation labor forces that were perpetually in need of replenishing. 6 The sugar plantations in early Brazil were different than the archetype of the plantation that would emerge in the Caribbean as sugar agriculture spread there in the 17th century. The Brazilian model had individual cane farmers and separate mill owners for processing. The Caribbean model consolidated this division into larger landholdings in which the agricultural production of sugar and its processing at the mill was all part of one plantation, usually owned by a single plantation owner. 7 By the 18th century, the largest Caribbean plantations had absentee owners. They entrusted estate management to local white managers and overseers and, for lower managers such as the drivers or head sugar boilers, even to the enslaved Africans. 8

The English colonies that were settled in the early 17th century were not intended primarily as new frontiers for a plantation complex that would use African slaves to grow staple crops even though that model had already proven very successful in Brazil. These early English colonies were, for the most part, outposts perched on the edge of a powerful Iberian empire in the Americas they were places from which the English could prey on Spanish American settlements and trade. 9 The English experimented with agriculture and slavery from the outset of settlement but developed no plantation economies until the middle of the 17th century. Until the 1640s, Native Americans were still more common as laborers in English colonies than Africans, and there were less Africans slaves in the English Caribbean than there were English slaves in North Africa. 10 The Africans who appeared in English colonies before the plantation revolution were usually slaves who were brought largely from Iberian orbits. They had often come from port cities in Africa. They spoke multiple African and European languages. They bore Iberian names, and they had some knowledge of cultures and economies around the Atlantic basic. They were part of an emerging creole Atlantic culture. 11

Sugar plantations transformed the English empire in the Americas in the 1640s, beginning in Barbados, spreading through the easternmost islands of the Lesser Antilles and then moving throughout the Lesser Antilles and into the Greater Antilles in Jamaica. The locus of sugar production began in the areas of the Americas that were closest to Africa because of the shipping costs involved with replenishing labor forces. 12 Enslaved Africans, though, became the preferred workers from the earliest days of the spread of the English plantation complex. The English used other populations of vulnerable and exploitable laborers (white servants who were often Irish, convicts, and Native Americans) largely to fill labor needs when they could not acquire or afford sufficient numbers of African slaves. Englishmen had first participated in the slave trade in the 1560s but it was only in the second half of the 17th century that the English began to develop a transatlantic trade that could supply the needs of these flourishing plantations. 13 The economic heart of the English empire remained in the Caribbean in the 17th century, not on England’s mainland American colonies. Between 1661 and 1710 , at least three people (forced or free) migrated to the English Caribbean for every one person who went to the mainland’s plantation colonies. 14 The development of plantation economies with institutionalized slave codes entrenching racial slavery and predominantly African labor forces in the early English colonies was to some extent a ripple effect of the economic and demographic transformations that sugar wrought in the Caribbean.

Plantation Slavery in the Chesapeake

The first permanent English settlement in the Americas occurred in the Chesapeake at Jamestown in 1607 . No one was certain how the colony would thrive at the outset, but tobacco took hold as a staple crop shortly thereafter. John Rolfe harvested the first tobacco in Virginia in 1612 , bringing it back to the mainland with him from Trinidad, and tobacco production began on a much larger scale by the end of the decade. 15 Small tobacco plantations spread quickly but not evenly throughout the Chesapeake. Some areas, such as the eastern shore, experimented with the new crop and found little gain so they transitioned quickly to mixed farming or to producing provision crops or naval stores such as turpentine, pitch, tar, and ship lumber. 16 The best plantation grounds were built along the many riverways to make shipping easier, and in Virginia the largest planters began to concentrate along the York River. 17 Tobacco plantations varied considerably from those producing sugar or rice. Tobacco production never had as significant economies of scale as sugar production or rice production in the Lowcountry. Tobacco could be grown by a small landholder with a handful of laborers on a small property, and the labor demands of tobacco did not necessarily require slaves. Compared to sugar plantations, which were the most significant plantation enterprises in the English Americas, start-up costs for tobacco planting were minimal. 18 Plantations in the Chesapeake eventually had self-reproducing populations, especially by the end of the 18th century when planters no longer relied on the slave trade from Africa and found that they still had a surplus of labor. 19 Whereas sugar was never successfully grown without slaves, tobacco was grown on many small Chesapeake plantations without slaves, and landholders sometimes worked in the field alongside their laborers.

In the first half-century after the crop was first planted, most Chesapeake tobacco plantations were cultivated by indentured white indentured servants alongside a few Native Americans and a small minority of black laborers, whose default status was enslavement. Disease and rebellion precluded the enslavement of Native Americans on a large scale in the Chesapeake. Recent evidence suggests that the gradual transition to an African labor force began on some of the Chesapeake’s largest, most fertile plantations as early as the 1650s with planters who could afford the few African slaves arriving in the colonies. 20 However, for the most part, the plantation labor force transitioned slowly from servants to slaves in the decades between 1670 and 1720 . The supply of European indentured servants to the Chesapeake failed to meet the long-term demand for plantation labor in the Chesapeake. The numbers of indentured servants arriving in the Chesapeake began to level out in the 1660s, began falling in the 1670s, and dropped sharply in the 1680s. 21 To some degree, the dwindling number of servants was due to the larger issue of English population decline at home. England’s total population dropped by about 8 percent between the 1650s and the 1680s, the only time in English history in which the population decreased between the 16th and the 20th centuries. 22 The fall in population meant less white migrants to the Americas. Not only were there fewer migrants willing to leave England for the Chesapeake by the 1680s and 1690s but they had more options available when it came to choosing a colony, especially as the English expanded through the Caribbean and up the eastern seaboard of North America. 23 Actually, by the 1660s the Cheapeake’s white population was reproducing naturally, and if European servants and their children had been enslaved for life, this white population of coerced laborers would have met the region’s labor demands. But European planters and colonial architects were not willing to subject white laborers to this enslaved status, nor is there any sign they considered doing so. 24

Although Chesapeake planters were willing to use Africans as slaves from the outset of settlement, supply and price forced them to choose other options. The transatlantic slave trade to the Americas was always a seller’s market and the Chesapeake was on the periphery of the massive plantation system supplied by a growing transatlantic slave trade to the Caribbean and Central and South America. Until the second half of the 17th century, the English in the Americas were forced to rely heavily on other nations to deliver the slaves they needed. 25 The planters in the Chesapeake simply could not compete financially for new African slaves, and not until the last decade of the 17th century were they consistently supplied with Africans through the transatlantic slave trade.

The slave trade emerged slowly and episodically in the Chesapeake, the only mainland colony area to develop a substantial enslaved African population before 1690 . The first “twenty and odd” Africans to arrive in the Chesapeake came in 1619 as slaves. They had been seized from a Portuguese slaving vessel by an English privateer carrying a letter of marque from Holland. 26 Between 1619 and 1628 , somewhere between seventy-five and one hundred Africans may have arrived in Virginia, but the supply of these laborers was very limited. 27 Indeed, before the 1670s, the vast majority of Africans delivered to the colony came via privateers or through trade with Caribbean colonies and the Chesapeake was not part of the most common Atlantic sea routes. 28 For the first two decades after Virginia was first settled, James I actively discouraged privateering raids against the Spanish, making it even less likely that privateers would supply any slaves to Virginia. 29

The first known transatlantic slaving voyage to deliver slaves to the Chesapeake came in 1628 and the next did not come until 1656 . A few slaving ships arrived in the early 1660s but lagged during the second Anglo-Dutch Naval War of the mid-1660s. 30 As a result, people of African descent, free or enslaved, never made up more than 5 percent of the Chesapeake’s population for the first five decades of settlement and that population grew very slowly. 31 Only 300 to 500 blacks resided in the Chesapeake in the 1640s, about 2,000 in 1671 and then about 3,000 by 1681 . 32 However, the transatlantic slave trade to Virginia increased in scale significantly in 1698 at the end of King William’s War. 33 Essentially, there was a surge in slaves in the last third of the 17th century and then another phase of even more rapid expansion at the outset of the 18th century. By 1720 , Virginia and Maryland had been transformed from societies with some slaves to slave societies. 34

At the end of the 17th century, the English had begun to develop a transatlantic slave trade to supply their American colonies, particularly Caribbean sugar colonies. Chesapeake planters may have been on the periphery of a flourishing Caribbean world but they began to be able to compete financially for some of the transatlantic slaves. The planter elite that would come to control the 18th-century Chesapeake had begun to emerge. Virginia’s gentry began consolidating landholdings and developing the kind of wealth that would allow its members to compete in the transatlantic sellers’ market for slaves. 35 The advantages of slaveholding became increasingly obvious. Planters could hold Africans as slaves for life and enslave their offspring as well. Compared to white servants, planters could compel greater work intensity from their African slaves and control them more completely through violent and draconian measures that became institutionalized in slave codes modeled on Caribbean codes.

Although nearly all Africans arrived in the Chesapeake as saleable commodities—people with a price—the boundaries between slavery and freedom for blacks do appear to have been quite permeable in the years before a full transition to African slavery in the region. Slaves and English and European servants were held by custom rather than by law until the transition to an African plantation labor force really began in the 1670s. Before that point, there were a few prominent examples of black slaves, especially on the eastern shore where tobacco plantations did not thrive, who gained their freedom, such as Anthony Johnson. Johnson first appeared in Virginia in 1621 where he was sold to the Bennett family as “Antonio a Negro.” He was married by 1640 and living on the eastern shore where he continued to labor for the Bennetts in some capacity but he had gained some autonomy. Johnson was free by 1651 and obtained a 10 acre headright for purchasing and bringing his own servants into the colony. He even received tax relief when his plantation was burned to the ground, and he left sizeable estates to his heirs. But after his death some white planters were able to seize some of his lands when the courts ruled that “Johnson was a negro and by consequence an alien.” 36 The opportunities that blacks such as Johnson had for freedom may be the result of Chesapeake planters’ recognition of and adherence to Iberian models of slavery. These models recognized a slave’s right to self-purchase or coartación and manumission as a central tool in slave management and control. 37 The dominant form of racialized chattel slavery in the New World to which the English were exposed, was, after all, an Iberian model, and many Africans brought to Virginia had been taken from Iberian slavers or slave systems. The permeable boundaries between slavery and freedom for some blacks disappeared quickly after the implementation of slave codes and the transition to a predominantly African labor force.

Had Africans been more readily available and more affordable relative to white indentured servants as the Chesapeake developed from the 1610s to the 1670s, Chesapeake planters clearly would have transitioned more rapidly to an African labor force in those earlier decades. This is what happened after 1690 . The increasing supply of Africans and the decreasing supply of servants meant that the servant to slave price ratio started to fall sharply in the 1690s, just as the standard indentured servant contract also was shortened from seven years to four years. 38 In the 1670s, probate inventories show that African slaves were valued at three times as much as servants but by 1690 that ratio had fallen to two to one. 39 In choosing to purchase Africans, whose bondage extended for life and was inherited by their children, over white indentured servants, whose term of servitude was becoming shorter and who benefitted from cultural commitments and prejudices that precluded their enslavement, the planters were making an economically rational decision but there were other cultural prejudices at play that kept Chesapeake slaveholders from enslaving and dehumanizing European servants, an even more rational economic choice.

Plantation Slavery in the Carolina Lowcountry

The first successful English settlement of the Carolinas came in 1670 as a proprietary colony. 40 The colony’s principal investors and many of the settlers and slaves were from Barbados. Several of Carolina’s early governors had Barbadian connections, and six of the ten parishes at the outset of the Carolina colony shared names with Barbadian parishes. 41 The settlement of the Carolinas came at the tail end of two decades of a Barbadian diaspora. Whites from a small and overpopulated Caribbean island that had been completely cleared for sugar planting sought places to invest in the expansion of the plantation frontier, and they sought places that would help to act as resource satellites. 42

Initially, Barbadian investors envisioned South Carolina as a colony that would provide timber, cattle, and provisions and even Native American slaves for their sugar plantations. However, the settlers in South Carolina always were open to other economic possibilities for the new colony. The financial success of plantation systems in the Caribbean and, to a lesser extent, in the Chesapeake motivated the proprietors and many of the wealthiest settlers with Caribbean connections to find a staple crop for another plantation frontier. They experimented with a range of economic activities. 43 In the early years of settlement, the deerskin trade, livestock husbandry, and provision growth made Carolina’s economy diverse, but they lacked a staple crop. 44 Although the Carolinas was founded as a part of a greater Caribbean world, the settlers’ experimentation quickly demonstrated that the climate would not allow for the expansion of sugar into the region. There was a boom in the production of naval stores such as tar, pitch, turpentine, and lumber between 1690 and 1720 . But it was rice that would become South Carolina’s dominant plantation crop. 45 The rice plantation complex first sprang up along the Ashley and Cooper Rivers. 46 Planters cultivated rice in the uplands in the 1690s, then expanded it to the marshy swamps of the lowlands in the 18th century in order to satisfy the water demands of the crop. By the middle of the 18th century, planters had learned how to use tidal cultivation to improve crop yields and soil fertility. 47

Whereas the Chesapeake had a staple crop and plantations before it became a slave society, Carolina was a slave society before it had a staple crop and plantations. The English settled Carolina when the pool of available indentured servants was already in decline and when the number of overseas migrants from England was also diminished because of the shrinking English population. 48 From the beginning, then, white servants never made up a significant portion of the plantation labor force in South Carolina. 49 Thus, at least a quarter of the population at the outset of the colony consisted of African slaves, largely brought from the Caribbean by migrating whites, even though the colony lacked a staple crop. 50 Many of these Africans had probably arrived from Africa recently and had little experience in the Caribbean. They were, presumably, purchased in the sugar islands and then shipped quickly afterwards to the Carolinas. It is unlikely that Barbadian sugar planters, always in need of labor, would be willing to move slaves who had adapted to the disease environment of the Caribbean, survived their first year and begun to develop expertise in sugar planting. 51

The first documented shipment of Africans directly to South Carolina from Africa did not arrive until 1710 , the colony’s first slaves being supplied through the Carolina planters’ Caribbean connections, although there may have been some unrecorded slave shipments from Africa in the earliest years. 52 The English had begun to develop a slave trade to supply Caribbean plantations in the second half of the 17th century, but the demand for slaves was usually much higher than the transatlantic slaving markets could supply, and Carolina planters, quite simply, could not compete for slave shipments from Africa until they had established rice plantations. Slave trade captains went where they could fetch higher prices for their cargoes.

Native American slaves helped to meet the labor demands in early Carolina until the transatlantic slave trade in Africans to the region began. The trade in Native American slaves was so large that before 1715 the Carolina colony actually exported more slaves than they imported. Somewhere between 24,000 and 51,000 Native Americans were enslaved in the colony and brought into the hands of the English. 53 Some of these slaves ended up being drawn into the Carolina colony as laborers. Native Americans continued to toil alongside Africans in the early years of rice planting. As late as 1708 , when blacks became a majority in South Carolina, there were 1,400 enslaved Native Americans in the colony, comprising a third of the colony’s population. 54

The Yamasee War in 1715 caused a sharp decline in the region’s Native population and put an end to the supply of Native American slaves. 55 Planters began to turn more fully to a labor force comprised entirely of Africans, as had happened in the Chesapeake. In the first decade of the 18th century, as Carolinians embraced rice as the staple crop, their success produced the capital necessary to compete to acquire African slaves. As a result, the colony moved rapidly toward a black majority. Between 1700 and 1730 the African slave population nearly doubled every decade, because in the deadly Lowcountry environment where imported Africans died rapidly from new diseases, malnourishment, and overwork, planters would need enormous numbers of slaves. 56

Rice plantations, operating with economies of scale and large populations of slaves, produced a lucrative crop. They required significantly more capital to establish than a Chesapeake tobacco plantation but not nearly as much as a sugar plantation. 57 South Carolina’s rice plantations grew into vast estates, and their high ratio of blacks to whites and deadly labor system required a transatlantic slaving system to maintain them. As a result, Carolina plantations resembled the Caribbean plantation frontiers much more than they resembled the Chesapeake tobacco plantations. 58 Rice became king in the South Carolina economy. By 1720 , more than half the value of South Carolina exports came from rice and it was clearly the colony’s principal staple commodity. 59 By the 1770s, South Carolina’s rice grandees had become the wealthiest planters on the mainland. 60

The brutal demands of this staple crop shaped the lives of the enslaved. Rice work regimes intensified after the plantations were moved to the Lowcountry and then again in the middle of the 18th century when planters learned to control the tidewaters to flood and water their fields. Building the earthworks necessary to control the waters in tidal culture required about as much labor, according to some contemporaries, as building the pyramids. 61 The Lowcountry plantations continued growing in size as the century progressed. In the 1740s, three-quarters of South Carolina’s slaves lived on plantations with twenty or more slaves while only a fifth of Chesapeake slaves lived on plantations with more than twenty slaves. 62 Lowcountry planters turned to indigo production in the 1740s to compliment rice and help survive downturns in the rice market and enlarged their plantations and slaveholding as they expanded. 63 Driven by the profits made in rice and indigo production, the Lowcountry plantation frontier then expanded to Georgia after the 1750–1751 removal of a ban on African slaves in that colony, then to East Florida after the British gained the region in 1763 . 64

Development of Racial Prejudice

Conceptions of physical difference and cultural notions of who was eligible for enslavement have always been at the core of slavery. Throughout history, slaves and other “subaltern” laborers, such as indentured servants or serfs, have often been described by the master class as being somehow physically different. Russian nobles, for example, in the 18th and 19th centuries suggested that their serfs had black bones, although they were of the same ethnic group. Medieval writers spoke of the dark or black skin of their serfs and slaves and described them in dehumanizing ways as beastlike. In a variety of slave systems, slaves have been associated with or described in degraded terms as livestock. 65

Yet, the system of racialized chattel slavery that had fully matured on plantations in the Americas by the 18th century was at an extreme end of a continuum in slave systems of coercion, dehumanization, and violence. Racism justified and buttressed this system more fully perhaps than it has with any slave system. Yet, racism is an idea that changed over time. As with any historical idea, it must be contextualized rather than treated as a transhistorical essence that does not change across centuries. Early 17th-century English racism looked very different than the elaborately imagined scientific racism of the late 19th century. Scientific racism did not emerge among Europeans until the late 18th century and racial thinking was rarely articulated in depth before that point. 66 In the early 17th century racial characteristics were generally not understood to be as fixed as they would come to be described in the 18th and 19th centuries. Englishmen wondered about the extent to which physical differences were not innate but instead the product of environment. They also wondered about the extent to which these differences were malleable from one generation to the next. They worried about the malleability of their own bodies and temperaments as they began an era of global expansion through different climates, especially extremes of cold and heat. 67 In other words, in the early English empire “race” was a more flexible category, with fewer fixed boundaries than the concept would become in the next centuries.

The evolving nature of the concept of race raises important questions about when, how, and why the particular kind of anti-black racism that was used to justify and buttress the plantation labor system emerged in the English Americas. The English clearly held deeply ingrained prejudices towards Africans and, to some extent, Native Americans when they began their successful mainland American colonization in the early 17th century. Some of this prejudice was born of cultural and religious difference and some of it was born of visible markers of physical difference. Regardless of what soil that prejudice was rooted in, the English enslavement of Africans in the first permanent English colonies does seem to have been, as historian Winthrop Jordan described, an “unthinking decision.” 68 The first generation of Africans in Virginia were almost never explicitly described as slaves, an observation that has led to some erroneous conclusions among scholars about their status, namely, that they might have been free. Nearly half the Africans listed in early Virginia censuses in the 1620s were simply listed as “negar” or “negors,” following Spanish usage, but not as slaves. 69 It is important to recognize here that their status as slaves did not need to be explained it was understood. Not only did the English hold racist assumptions about Africans but they also followed the precedent of Iberian enslavement of Africans for plantation labor in the Atlantic Islands and in the Americas. The English borrowed from these Iberian models and then developed and codified systems of racial slavery with even less permeable boundaries between freedom and slavery for blacks. There was never any question about the role that Africans would assume in the colonization of the Americas. The vast majority would at least begin that journey as slaves in a “system” whose exact parameters had not yet been set, and if they escaped slavery they could easily be brought into bondage again. For the English, at the outset of colonization, the issue was not whether Africans would be slaves but rather how to acquire them and control them as the population grew.

Seventeenth-century English racial prejudice was focused to some extent on skin color but it also took other aspects of physiology and culture into account. The English associated blackness with the devil, but Englishmen rarely focused at all on the skin color of Native Americans. 70 Instead, 17th-century Englishmen generally focused more on the cultural differences between Native Americans and Europeans than on skin color differences. A few Englishmen even suggested that the Native Americans were born white but that a variety of cultural practices and patterns of living had made their skin darker. 71

Other assumptions about innate physical differences between Europeans, Africans, and Native Americans, especially the relationship between their bodies and their suitability for the environment and labor, may have had an even greater impact on the development of plantation labor systems in the Americas. For example, as the 17th century progressed, the English noted that Africans seemed to survive better than whites when they labored in the Lowcountry and in the sugar colonies. This was true, but the only reason that Africans survived better was that they had already acquired some immunity to malaria and yellow fever that new English immigrants did not possess. Nevertheless, the English interpreted the better African survival rates (as dismal as they still were in the sugar colonies) as a sign that African bodies were somehow better suited than English bodies for labor in the hot climates of the greater Caribbean. This simple fact of epidemiology reinforced ideas about innate difference. 72

In the era before the rise of the plantations, religious prejudice played a key role in shaping the system of slavery and in determining who was eligible to be reduced to slavery. The Virginian slave codes, for example, offer evidence that some slaves were able to seek baptism through freedom. 73 One historian has suggested that the near absence of missionary work among slaves in the 17th-century English colonies was in part due to slaveholder’s concerns that baptism might allow the slaves a route to freedom. 74 In the minds of the English colonial architects, religious differences between the enslaved and freemen posed a threat to English culture and identity in the newly formed English colonies and the absence of Christianity amongst the enslaved—the slaves’ “paganism”—was as much a threat as their blackness. In 1644 , as African slaves began to arrive in significant numbers in the eastern Caribbean, Antigua authorities passed an “Act Against Carnall Coppullation between Christian and Heathen.” 75 As the plantation complex rose up in English colonies and planters transitioned to an African labor force, the religious justification for enslavement disappeared along with any small opportunities that might have existed for slave manumission through baptism. Slave Codes were enacted to clarify any confusion over the issue, and race (particularly skin color), rather than religion, became the marker of difference that mattered. Skin color made slaves visibly different from their masters and this made them easier to identify, monitor, and subjugate.

The so-called “Curse of Ham” found in Genesis 9:20–27 became an increasingly popular explanatory tool and a religious justification of enslavement that was also used to explain the permanence of black skin, especially after Europeans discovered that Native Americans living in similar hot environments and at the same latitude as Africans had much lighter skin and that their own European bodies did not change in the Caribbean. This evidence dealt a blow to European ideas about how innate physical differences between groups of people such as skin color were grounded in the environment and the climate. Such an intellectual problem led more Europeans to embrace the Curse of Ham as an explanatory tool for African skin color. This biblical passage describes Ham uncovering his drunken father’s naked body and incurring the wrath of God, with Ham and his sons being cursed for eternity to be the servants of servants. 76 Although not found in the biblical text itself, early modern Europeans speculated that Africans’ skin color was a fixed marker originating in this curse and that they were destined by the curse to be slaves. 77

It is clear that the English conceptualized Africans and, to a lesser extent, Native Americans, as different and as outsiders to such an extent that these groups were always considered eligible for lifetime inheritable enslavement and eligible for the dehumanization that came with chattel status. 78 The boundaries between slavery and freedom, as well as ideas about race, were more flexible in the early 17th century but the greater opportunities for black freedom and agency that were exhibited by men such as Anthony Johnson quickly disappeared as the plantation system developed. By 1680 in Virginia, one contemporary noted that “These two words, Negro and Slave” had “by Custom grown Homogenous and Convertible.” 79 The same was true for South Carolina from the outset. After the Yamasee War in 1715 , as African slaves became the vast majority of each plantation’s labor force, the few surviving Native American slaves on South Carolina rice plantations were, as one historian suggests, “swallowed in the tide” and listed no longer as Native Americans but as Africans. 80

In the 17th century, Protestant Englishmen certainly held some ethnocentric prejudice that was not necessarily racial at all, such as their prejudice towards the Irish and Jews. The Irish were forced to labor in the brutal work of sugar planting alongside Africans in the early English Caribbean. Some scholars and even some 17th-century commentators have described the Irish condition in the West Indies as a kind of slavery. 81 Yet, the Irish were also never subject to lifetime inheritable bondage. Although Europeans (particularly the Irish) were subject to brutal conditions and degrees of forced labor in the English plantation Americas, they were never used as chattel slaves or dehumanized to the degree that they were treated like livestock as were peoples of African descent. At the same time, while some Native Americans were treated as indentured servants, there were no African indentured servants. Thus, the growth of slavery in the colonies deepened the racial prejudices that the English brought with them to America. The combination allowed the Chesapeake and Carolina planters to dehumanize Africans and subject them to an inheritable chattel slavery that they could not apply to lower-class English and European whites, even though the economics of plantation slavery in all its locations might have justified a non-racial slavery in America. 82

Slave Codes

Racial slavery was first adopted throughout the English Atlantic world without any comprehensive slave codes. Without “positive law,” slavery existed without legal definition or enforcement mechanisms but those who managed to acquire slaves, usually from Iberian worlds, had no difficulty keeping them, employing coercive and violent mechanisms of control beyond the law. 83 Thus, slaves were held by custom rather than by law until 1661 , when the first comprehensive slave codes were developed in the English Atlantic. Yet some legal precedents before 1661 reflected how race was being used customarily to define status and degrade Africans and Native Americans. As early as 1636 , for example, the Barbados assembly decided that “Negroes and Indians . . . should serve for life unless a contract was before made to the contrary.” 84 Essentially, they were acknowledging that Africans would normally be lifetime slaves. Europeans were not included in the law, and the decision was made even before sugar plantations began to transform the social and economic landscape of the island. Englishmen in Virginia may have recognized inheritable lifetime enslavement through the status of the mother long before the 1660s as well. In 1642 in Virginia, black women were counted as tithables or taxable property. 85 In addition, blacks in early Virginia were recognized as outsiders who had no stake in the colony whereas white indentured servants were required to defend the colony. In 1639 , for example, a Virginian law required all persons in the colony to be armed for its defense except blacks. 86

As the enslaved African population grew throughout the English colonies, slaveholders began to codify a racially based plantation labor system much more comprehensively, adding legal coercion to their existing tools of dehumanization, violence, and social control and ensuring the institutionalization of racial prejudice. The first comprehensive slave code was developed in Barbados in 1661 after sugar had transformed the island’s economy and as the island’s planters transitioned to a predominantly African labor force. The Barbadian slave code of 1661 was re-enacted with minor modifications in 1676 , 1686 , and 1688 and was used as a basic template for the adoption of comprehensive slave codes in other English plantation colonies: Jamaica in 1664 , South Carolina in 1696 , Antigua in 1702 , and Virginia in 1705 . This codification was not uniquely English. The French followed the same pattern as sugar transformed their islands they adopted the Code Noir to address the growth of slavery in 1685 .

In Virginia, the absence of a significant enslaved black population before 1670 led to less need for specific legislation defining slavery. As a result, Virginia’s slave codes developed more slowly than in Barbados and on an ad hoc basis, addressing potential threats to order and social control as they appeared. The evolving Virginian codes show a gradual disappearance of permeable boundaries between slavery and freedom in the colony and the entrenchment of inheritable lifetime enslavement for blacks as that population grew. A 1662 act noted that “some doubts have arisen whether children got by any Englishmen upon a Negro shall be slave or Free” and so “Be it therefore enacted . . . that all children born in this country shall be held bond or free only according to the condition of the mother.” 87 A 1667 Virginia law made it more difficult for blacks or Native Americans to seek freedom through baptism, specifying that baptism would no longer “alter the condition of the person as to his bondage or Freedome.” 88 A 1669 Virginian act regarding the “casuall killing of slaves” became the clearest indication that blacks had long since been dehumanized and reduced to the status of property and a powerful testament to the extent to which the violence inherent in slavery had become institutionalized. The act made it almost perversely clear that if punishment of a slave by a master resulted in death, it could not be a felony rather, the death must have been an accident because no master would intentionally destroy his property. 89 By 1705 , Africans’ chattel status in Virginia was laid out clearly, with no opportunity for any confusion, in a long and comprehensive slave code. Much of it was based on the earlier Barbadian code. It also reiterated some of the acts that had been passed in Virginia to date, such as the one protecting masters from felony charges if they killed their slaves during punishment. Among the many stipulations, the 1705 Virginian code also dictated clearly that “All negroe, mulatto, and Indian slaves shall be held, taken, and adjudged to be real estate.” 90

The reality of a significant enslaved African population in South Carolina from the outset meant that comprehensive slave codes emerged there much more quickly to control this population. The Carolina Constitution of 1669 set the groundwork for the slave society to come by asserting a slaveholder’s right to “absolute Power and Authority over his Negro Slaves.” 91 The word “power” had been added to an early draft to ensure that there was no confusion about the relationship between whites and their African slaves in the new mainland colony. 92 The colony transitioned quickly towards a black majority with a brutally demanding staple crop and a plantation system that resembled Caribbean sugar estates. Throughout that transition the colonists continued to adopt more draconian and dehumanizing slave codes in the Lowcountry than they had in the Chesapeake. 93 In 1683 , the first act concerning slavery outlawed “Trading between servants and slaves” to discourage social interactions and combined resistance from the lower classes. Such laws helped solidify racial divides. 94 The Carolinas were fully integrated into a greater Caribbean and news of slave rebellions in Barbados and in Antigua in the 1680s may have encouraged the rapid transition to slave codes that enshrined more draconian punishments and more absolute authority for masters. 95 The 1696 comprehensive South Carolinian slave code borrowed heavily from the Barbadian code but also drew from Jamaican modifications to that Barbadian code. 96 In South Carolina, punishments for slaves such as “gelding” (castration) or severing Achilles tendons were institutionalized in the slave codes, while in Virginia such punishments were reserved for very specific crimes such as rape, which allowed castration. 97 South Carolina’s use of the term “gelding,” previously meaning the castration of male livestock, demonstrates the extent to which African slaves had come to be viewed as a type of livestock as race-based slavery and the plantation system exploded across the Lowcountry. 98 Slave codes had helped to complete and root the transformation to race-based plantation slavery on the North American mainland.

Discussion of the Literature

One of the most significant and longstanding debates in early American historiography is what has been termed the “Origins Debate.” At its most reductionist level, the key question can be summarized as which came first in the early United States, slavery or racism? The origins debate is focused on the status of the first generation of blacks in the Chesapeake. There are significant sociopolitical implications for the “Origins” debate that help to explain why it produced such a voluminous and contentious literature, particularly during the Civil Rights movements. If the institution of slavery gave birth to racism, then racism will be easier to eradicate now that slavery has been abolished. If racism predated slavery and is much older and more deeply ingrained, then the implications are that it will be more difficult to eradicate.

The scholarship tends to align itself in two camps. The first would argue that the English enslavement of Africans in the Chesapeake was an “unthinking decision,” as historian Winthrop Jordan originally suggested, because of deep-seated European racism that predated colonization. They point out that the punishment of Africans in early Virginia was always more severe than that of white indentured servants, that whites were never subject to inheritable lifetime bondage and that Africans were held as slaves by custom until the legalization of slavery. Scholars such as Carl Degler, Winthrop Jordan, and David Eltis have done work that endorses this first view. 99 The second group would argue that racism and the institution of slavery evolved more slowly over time in the early United States and was contingent on a series of events and demographic and economic forces. Scholars who endorse this position will sometimes go as far as to argue that the planter elite conspired to encourage the development of racism and slavery to divide lower class whites from blacks and control a guaranteed labor force. Some of these scholars have pointed to Bacon’s Rebellion in Virginia 1676 —largely a rebellion of white colonists on the frontier who felt that the government, controlled by the most elite planters, needed to defend them from Native American attacks—as a key event in the story of the transition to African slavery. Edmund Morgan, for example, argued that the suppression of Nathaniel Bacon’s forces enabled the planter elite to consolidate their position and encouraged them to entrench the system of slavery and racism because they realized that the hostility toward Native Americans demonstrated that the “Resentment of an alien race might be more powerful than resentment of an upper class.” 100 The scholars who defend this second position have also focused on examples of prominent free blacks such as Anthony Johnson and argued that there was significant racial flexibility and opportunity for free blacks in early Virginia. They stress that slavery did not start to be legalized in Virginia until the 1660s which means that chattel slavery was nonexistent or at best nascent at the outset in Virginia. There were opportunities, they would argue, for what Ira Berlin calls the “charter generation” of Africans before a plantation revolution changed race relations in the Chesapeake. 101 Oscar and Mary Handlin, Edmund Morgan, Ira Berlin and, most recently, Anthony S. Parent stress this second point of view. 102 The dominant historiographical consensus in recent years, evident in the work of John C. Coombs and Lorena Walsh, tends to support the idea that racial slavery was practiced in Virginia before the slave codes. 103

The origins debate has been reshaped in recent years by the Atlanticization of early American History. Scholars are situating the transition to slavery in Virginia within much larger contexts than simply the early U.S. A new version of the origins debate has shifted to the English Caribbean as scholars explore the transition to sugar and African slavery in those islands. The focus is on Barbados, the island that spearheaded the English sugar plantation complex. Whereas in the Virginian context, much was made by some scholars of prominent free blacks who escaped slavery, the recent work on the origins of slavery in the English Caribbean has focused instead on white servants being used like slaves in the sugar islands. These white servants, recent scholarship has maintained, may not legally have been slaves but they were subject to the same brutal punishments and to day-to-day working conditions on sugar plantations as the Africans they worked alongside. Simon Newman, Jenny Shaw, and Michael Guasco have all done recent work stressing the vulnerability of some English, Irish, and Scots to a form of bondage in the Caribbean. 104

There has also been a surge of historiographical interest in the last two decades in the enslavement of Native Americans and in the systems of enslavement within Native American societies in continental North America and in the Caribbean. This new scholarship may force us to reconsider how we characterize the emergence of slavery in the early U.S. From a broader continental perspective, the most common form of enslavement in the early United States for most of the 17th century was Native American and the character of Native American slavery was very different from the racialized form of plantation slavery in which Africans were used as labor units. 105

The Lowcountry has its own origins debate but the focus in that historiography is not on the origins of slavery but rather the origins of the plantation crop that came to define the region: rice. Scholars have debated whether there was significant African agency in the development of rice as a staple crop. Some scholars, such as Judith Carney, maintain that the African knowledge and experience with rice was somehow essential to its development as a staple crop. 106 Carney argues that the experience and skill that Africans had with cultivating rice was the key to how planters learned to grow the crop. Philip Morgan, David Eltis, and David Richardson are among a more recent group of scholars who maintain that African agency in the origins of rice cultivation is exaggerated. 107 Max Edelson’s research finds a balance and suggests that the process of learning how to plant rice in the Carolina wastelands was a kind of new world creolization that combined “the different sorts of knowledge that settlers, officials and slaves possessed.” 108

Primary Sources

The question of when and how racism and slavery evolved in the 17th-century plantation colonies on the North American mainland has been exhaustively researched by multiple generations of scholars. There are few if any records that have not been found or examined. Yet, the records available are so sparse that we will never be able to answer some research questions. There are, for example, only a handful of records from the Caribbean, the Chesapeake or the Lowcountry that allow us to understand the internal management of 17th-century plantations and there are no surviving sources that can tell us, firsthand, about the perspectives of the enslaved in this era. There is still room though for new insights in this field. The records for this subject are now more readily available to historians in an age of digitization, increasingly sophisticated searchable databases and keyword searching options and online access. The ease of access is allowing historians to explore more sources for this topic, search through them in novel ways, and situate them in larger contexts.

For a broader understanding of the spread of racial slavery and the plantation complex, there are several sets of online sources. Many of the documents from the Colonial State Papers have now been digitized and placed online. This is a treasure trove for historians who wish to understand the early English Atlantic and the spread of the plantation complex from the perspective of elite colonial architects. To better understand the rise and nature of the transatlantic slave trade, scholars can turn to the records of all known slaving voyages compiled in a remarkable online database: Voyages: The Transatlantic Slave Trade Database. The development of racial thinking and the expansion of plantation slavery in the 17th century can also be examined to some extent through the collection of published 16th- and 17th-century materials in Early English Books Online.

For the Chesapeake, researchers could start with collections of sources relating to slavery and servitude at the online site Virtual Jamestown. This site includes pages listing all the laws relating to slavery and servitude for Virginia up to 1705 . It is also a useful teaching tool. The John D. Rockefeller Jr., Library at the Colonial Williamsburg Foundation in Williamsburg, Virginia is a key research site for the study of the Virginia colony. Many of the records from early Virginia have been destroyed by fire and warfare but the ones that survive have been identified, reorganized, and consolidated as part of the Virginia Colonial Records Project, a joint effort by the Colonial Williamsburg Foundation, the Library of Virginia, and the University of Virginia Library to survey and index all the surviving records from more than a hundred libraries and archives. There are also early colonial Virginia records in the Thomas Jefferson papers at the Library of Congress and many of them have been digitized and placed online. This Library of Congress collection is rich in court records. For Maryland, the Maryland Historical Society in Baltimore contains some potentially useful manuscript material for the study of the expansion of early Maryland while the Maryland State Archives is a repository for some 17th-century material such as probate and land records.

The materials for the early Lowcountry and for the Carolinas more generally are not as centrally available or as easily accessed online but many of them have been collected and published in paper form. Researchers interested in the early establishment of the colony could begin with The Shaftesbury Papers which include much of the most important correspondence from the early years of settlement of the Carolinas as a Proprietary colony. 109 Most of the records in that collection are the papers of Anthony Ashley Cooper who was one of the Lords Proprietors of the colony. Another useful collection of sources for the early years can be found online in the “The Colonial Records of North Carolina.” North and South Carolina were united until North Carolina had its first governor in 1711 . This collection is keyword searchable and it contains many records relating to the settlement of the early Carolinas more broadly, especially information on how the future potential of the region was envisioned by the Lords Proprietors. Scholars could also consult a range of records such as wills, inventories, and land deeds that allow us to track the spread of plantation slavery. These sorts of records and other pertinent collections are available at the archives of the South Carolina Historical Society in Charleston and at the South Carolina Department of Archives and History in Columbia.


WESTERN PLAZA, LLC, Respondent, v. Norma TISON, Appellant.

No. 43514–4–II.

Decided: January 28, 2014

¶ 1 Norma Tison appeals the trial court's order granting Western Plaza, LLC's motion for judgment on unlawful detainer and attorney fees and costs, and the order. denying her motion for reconsideration. Tison primarily argues that her mobile home land rent may be increased only to the extent provided in the rental agreement. We agree. 1 Because nothing in the “Manufactured/Mobile Home Landlord–Tenant Act” (MHLTA) 2 prohibits a landlord and tenant from agreeing to the amount of future rent increases, we reverse the trial court and remand for entry of summary judgment in Tison's favor, including costs and attorney fees.

¶ 2 In 2001, Tison purchased a mobile home and entered into a “Manufactured Home Lot One–Year Rental Agreement” (Agreement) for a lot at the Western Plaza Mobile Home Park with the park's owner, Joel Erlitz. The Agreement specifically provided for a one-year term beginning October 12, 2001, and that upon expiration of the original term, the Agreement would automatically renew for a period of one month and thereafter be a tenancy from month-to-month. The Agreement set monthly rent at $345. The Agreement used a standard form with several provisions preprinted but also included three handwritten provisions on the bottom of its second page: (1) “Landlord, Erlitz, agrees to have land rent remain at $345.00 for two years” (2) “Every other year, rent will be raised no more than $10.00 for remaining tenancy” and (3) “December 2001 land rent of $345.00 to be waived.” Clerk's Papers (CP) at 23.

¶ 3 Erlitz increased Tison's rent to $355 in October 2003, to $365 in October 2005, and to $375 in October 2007. Then in 2008, Western Plaza bought the park from Erlitz. In March 2009, Western Plaza sent Tison written notice of its intent to increase her rent to $405 effective July 1, 2009. Tison complained that the increase was. improper under the Agreement. Then, in June 2011, Western Plaza sent Tison notice that it was increasing rent to $495 effective October 1, 2011.

¶ 4 Tison ignored the rent increase notices and in October 2011, she began sending $395 per month, which she thought was appropriate under the Agreement's provision that rent increases would be limited to $10 per month every two years. Western Plaza refused to accept the $395 payment and sent it back to Tison. In mid-October, Western Plaza sent Tison a five-day notice to vacate and pay rent due of $495. Tison did not comply. The next month, Western Plaza served Tison with an eviction summons and a complaint for unlawful detainer.

¶ 5 In April 2012, Tison moved the superior court for summary judgment dismissal of Western Plaza's unlawful detainer action. Western Plaza filed a cross motion for unlawful detainer judgment in its favor. Both parties acknowledged that no material facts were in dispute and that summary judgment was appropriate. The superior court entered findings of fact and conclusions of law for unlawful detainer in Western Plaza's favor. The superior court concluded that there was no substantial issue of material fact and that “[t]he landlord may amend the lease upon proper notice when the lease automatically renews.” CP at 94. It entered judgment for Western Plaza for the rent owing and attorney fees and costs and directed the clerk to issue a writ of restitution. Tison moved for reconsideration which the court denied. Tison appeals.

¶ 6 Tison argues that the rent increase limitation is enforceable because it was bargained and negotiated for between herself and the park's former owner, Erlitz courts should not limit parties' freedom to contract and the rent increase limitation was enforceable against any landlord for as long as she lived at the park. 3 Western Plaza responds that the Agreement specifically provided for a one-year term, that after the first year it could raise rent in accordance with the MHLTA, and that the rent increase limitation provision was unenforceable after the first year. We agree with Tison and hold that the rent increase limit provision specifically bargained for here does not violate the MHLTA and the MHLTA does not render it unenforceable.

Standard of Review and Rules of Law

¶ 7 When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). We “will affirm summary judgment if no genuine issue of any material fact exists and the  moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and all questions of law are reviewed de novo. Mountain Park, 125 Wn.2d at 341.

¶ 8 We review all questions of statutory interpretation de novo. State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131, cert. denied, 131 S.Ct. 318 (2010). First, we look at the statute's plain language. City of Seattle v. Holifield, 170 Wn.2d 230, 237, 240 P.3d 1162 (2010). “If the plain language is subject to one interpretation only, our inquiry ends because plain language does not require construction.” Holifield, 170 Wn.2d at 237.

¶ 9 Further, the common law preserves citizens' freedom to contract. Little Mountain Estates Tenants Ass'n v. Little Mountain Estates MHC, LLC, 169 Wn.2d 265, 270 n.3, 236 P.3d 193 (2010) (“ ‘Courts do not have the power, under the guise of interpretation, to rewrite contracts. which the parties have deliberately made for themselves.’ ”) (quoting Clements v. Olsen, 46 Wn.2d 445, 448, 282 P.2d 266 (1955)). “ ‘It is black letter law of contracts that the parties to a contract shall be bound by its terms.’ “ Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P.3d 318 (2009) (quoting Adler v. Fred Lind Manor, 153 Wn.2d 331, 344, 103 P.3d 773 (2004)). In construing a contract, we give the parties' intent as expressed in the instrument's plain language controlling weight, and we give words in a contract their ordinary meaning. Cambridge Townhomes, LLC v. Pac. Star Roofing Inc., 166 Wn.2d 475, 487, 209 P.3d 863 (2009). We may discover parties' intent from “ ‘viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.’ “ In re Marriage of Litowitz, 146 Wn.2d 514, 528, 48 P.3d 261, 53 P.3d 516 (2002) (internal quotation marks omitted) (quoting Scott Galvanizing, Inc. v, Nw. EnviroServices, Inc., 120 Wn.2d 573, 580–81, 844 P.2d 428 (1993)), cert. denied, 537 U.S. 1191 (2003).

¶ 10 “Enacted in 1977, the MHLTA regulates and determines the legal rights, remedies, and obligations arising from a rental agreement between a mobile home lot tenant and a mobile home park landlord.” Holiday Resort Cmty. Ass'n v. Echo Lake Assocs., LLC, 134 Wn.App. 210, 222, 135 P.3d 499 (2006), review denied, 160 Wn.2d 1019 (2007). The MHLTA requires landlords to provide a written agreement to a tenant at the beginning of the tenancy and that rental terms are one yearunless otherwise specified. Holiday Resort, 134 Wn.App. at 223. It also provides that an agreement of any duration will be automatically renewed for the term of the original agreement, unless the parties agree to a different specified term, and that a landlord may terminate a rental agreement for cause. Former RCW 59.20.080 (2003) RCW 59.20.090(1).

1. The Rent Increase Limitation Is Enforceable Because the MHLTA Does Not Prohibit It

¶ 11 The MHLTA requires rental agreements to contain certain provisions and prohibits others. Former RCW 59.20.060 (2006). Any term in a rental agreement that conflicts with the MHLTA is unenforceable. Former RCW 59.20.060. Further, a landlord who seeks to increase rent can do so “upon expiration of the term of a rental agreement of any duration” by notifying the tenant in writing three months prior to the effective date of any rent increase. “RCW 59.20.090(2) McGahuey v. Hwang, 104 Wn.App. 176, 182, 15 P.3d 672, review denied, 144 Wn.2d 1004 (2001). But nothing in the MHLTA prohibits a landlord from including in a rental agreement a limit on future rent increases. See former RCW 59.20.060.

¶ 12 Because the MHLTA does not prohibit limits on future rent increases, such a limitation is enforceable. Little Mountain is helpful here. 169 Wn.2d 265. There, the owner of a manufactured home community intended for the elderly offered a 25–year lease to entice new residents with rent increases tied to the Consumer Price Index. Little Mountain, 169 Wn.2d at 267. The lease provided that the 25–year term was available for only the original tenant and that if the original tenant assigned its lease to another party, the assigned lease would be for one or two years. Little Mountain, 169 Wn.2d at 267. Later, tenants who assigned their leases claimed that the assignment provision violated the MHLTA. Little Mountain, 169 Wn.2d at 268. The Supreme Court disagreed and held that the assignment provision was enforceable because it did not violate the MHLTA the court also explained that the MHLTA did not prohibit landlords and tenants from agreeing to rental terms that would be determined by a formula or be linked to a tenant's future decision to assign the lease. 4 Little Mountain, 169 Wn.2d at 268, 271.

¶ 13 Similarly here, Tison's Agreement specifically provided that her rent would be determined by a formula: no more than a $10 monthly rent increase every two years. This provision is enforceable because it does not violate the MHLTA. When a lease provision does not violate the MHLTA, we must enforce the parties' agreement as written and as the parties intended. Cambridge Townhomes, 166 Wn.2d at 487 Torgerson, 166 Wn.2d at 517. The parties here clearly intended for Tison's monthly rent to not increase more than $10 every, two years as their Agreement's plain language provides.

¶ 14 In addition to Little Mountain, Western Plaza cites McGahuey, 104 Wn.App. 176, and Seashore Villa Ass'n v. Hagglund Family Ltd. Partnership, 163 Wn.App. 531, 260 P.3d 906 (2011), review denied, 173 Wn.2d 1036 (2012). But Seashore Villa is distinguishable and does not help Western Plaza. There the landlord sought to transfer the duty to care for permanent structures in the mobile home park to the tenants by agreement, but the MHLTA specifically prohibited the landlord from transferring the duty of care for those structures. Seashore Villa, 163 Wn.App. at 535–36, 542. So we held that the parties could not contract around a specific MHLTA provision and that the landlord violated the MHLTA by asking the tenants to do so. Seashore Villa, 163 Wn.App. at 542. But here, because the MHLTA does not specifically prohibit parties from agreeing to a rent increase limitation, Seashore Villa does not help Western Plaza's argument and we cannot ignore the limitation that the parties explicitly agreed to.

¶ 15 McGahuey is also distinguishable. There, we agreed that the landlord could properly require tenants to begin paying for utilities in addition to base rent because the MHLTA did not prohibit landlords from asking the tenants to do so, so long as the tenants paid only their actual utility cost and because nothing in their rental agreements prohibited it either. 5 McGahuey, 104 Wn.App. at 180–84.

¶ 16 Further, Western Plaza agreed at oral argument that the original landlord, Erlitz, was bound to the Agreement's rent increase limitation, and it also conceded that Western Plaza-bought the mobile home park subject to all the leases that were in place at the time of the purchase. Wash. Court of Appeals oral argument, Western Plaza v. Tison, No. 43514–4–II (October 14, 2013), at 19 min., 30 sec—20 min., 30 sec. (on file with court). Therefore, Western Plaza took Tison's lease subject to the Agreement's specific provision providing for future rent increase limitations. We cannot ignore that provision, as Western Plaza seeks to do. And because it does not violate the MHLTA, we must enforce it. See Torgerson, 166 Wn.2d at 517.

2. The Agreement's Rent Increase Limitation Automatically Renewed Each Year

¶ 17 Western Plaza argues that the limit on rent increases terminated after one year. We disagree. Although the Agreement's term was for one year, under the MHLTA, the Agreement thereafter automatically renewed each year for another year, meaning that all its terms also automatically renewed unless the parties agreed to change the terms. RCW 59.20.090(1). Western Plaza asserts that at the end of each year it could modify the rent amount by giving Tison proper notice, relying on RCW 59.20.090 and McGahuey, 104 Wn.App. at 181–83. Although RCW 59.20.090 allows rent increases, it does not control the result here where the landlord specifically agreed to limit the amount of future rent increases. Similarly, McGahuey is not helpful because it does not address whether an agreement to limit future rent increases is enforceable. We agree with Tison that Western Plaza may not ignore the rent increase limitation at the end of the first year.

¶ 18 Because the express future rent increase limitation provision is not in conflict with the MHLTA, Western Plaza bought the park subject to Tison's Agreement, and because Tison's Agreement renews each year, we conclude that the rent increase limitation is enforceable against Western Plaza. We reverse the unlawful detainer judgment, including costs and attorney fees, and instead remand for entry of summary judgment in Tison's favor, including costs and attorney fees.

¶ 19 Tison requests attorney fees on appeal. Under RAP 18.1, the prevailing party is entitled. to attorney fees and costs on appeal if requested in the party's opening brief and if “applicable law grants to a party the right to recover.” RAP 18.1(a)-(b). The MHLTA grants Tison a right to recover. It provides that “[i]n any action arising out of this chapter, the prevailing party shall be entitled to reasonable attorney's fees and costs.” RCW 59.20.110. Similarly, the Agreement. here includes an attorney fee provision. Therefore, Tison is entitled to her attorney fees and costs upon compliance with RAP 18.1.

¶ 20 We reverse and remand for entry of summary judgment in Tison's favor, including costs and attorney fees.

¶ 21 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.


¶ 22 Appellant Norma Tison and third party Manufactured Housing Communities of Washington move this court for publication of the unpublished opinion filed on January 28, 2014. The court having reviewed the record and files here, now, therefore, it is hereby

¶ 23 ORDERED that the final paragraph that reads, “A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further

¶ 24 ORDERED that the opinion will now be published.

1. Because we agree with Tison that the rent increase limitation is enforceable, we do not reach her other arguments.

3. Tison also argues that the doctrines of waiver, bad faith, and promissory and equitable estoppel prevent Western Plaza from raising her monthly rent more than $10 every two years. Western Plaza responds that these doctrines do not apply here. Because we reverse on Tison's primary argument, we do not address her alternative arguments.

4. Tenants also argued that the assignment clause also violated the Consumer Protection Act (CPA), ch. 19.86 RCW. Division One of this court remanded the CPA claim for further factual findings to determine whether the tenants could prove a CPA violation so the CPA claim was not before the Supreme Court. Little Mountain, 169 Wn .2d at 271.

5. Because the McGahuey parties' agreement did not prohibit such a fee increase, we did not address a situation like the one we have here, where Tison's Agreement does restrict future rental increases.

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