“I [Cheng] propose two new sections of the genus Taxus, namely Sect. Albae. and Sect. Rubrae. The section Albae is represented by only one species, Taxus Chienii.  All other species of the genus are included in the section Rubrae.  I am much obliged to you, if you let me know what is your opinion about Taxus Chienii and the new sections of the genus Taxus proposed by me.”

     Florin (1948c) then reportedly sent Cheng a letter, dated 2 January 1948, explaining that he had submitted three papers on Nothotaxus, and further justified that Taxus chienii should be treated in a distinct genus (Nothotaxus) rather than in a new section.  Florin subsequently received a letter on 9 March 1948 from Cheng postmarked 23 Feb 1948, dated 12 Feb 1948, accompanied by a “paper” “dated 20 Dec. 1947,” “Research Notes, Forestry Institute, National Central University, Nanking, Dendrological Series, No. 1,” titled “New Chinese trees and shrubs.”  In Cheng’s Feb. letter to Florin, he claims to have changed his mind about the status of T. chienii (after Florin had reported to Cheng on his new genus Nothotaxus), and notified Florin of his new genus, Pseudotaxus. 

     It would seem that the name Pseudotaxus became known only from Florin’s published note that also mentioned Nothotaxus; both generic names first appeared simultaneously in April 1948 (Florin 1948c). The ICBN defines publication “only by distribution of printed matter through sales, exchanges, or gift to the general public, or at least to botanical institutions with libraries accessible to botanist generally” (Art. 29.1).

     Does Cheng's letter to Florin constitute effective publication? No. It was clearly a personal letter that was in response to previous communications between Florin and Cheng. Does Florin's (1948c) mention of the existence of Cheng's Research Notes on Pseudotaxus constitute effective publication? No.  The ICBN states that it must be distributed to the “general public, or at least to botanical institutions.”  Although Cheng's inclusion of his research note on Pseudotaxus with his letter to Florin may be interpreted as intended for one institution (Royal Swedish Academy of Science), it is only one institution, which does not meet the requirements of the code, and judging from its absence in major libraries (e.g., USDA National Agricultural Library), it seems to lack availability to the public.

     How does one decide whether printed matter has been distributed to the public, especially if the printed matter appears in an unknown journal, indicated as first issue, “No. 1”?  The ICBN (Art. 31.1) states that “effective publication is the date on which the printed matter became available, and in the absence of proof establishing some other date, the one appearing in the printed matter must be accepted as correct” (emphasis added). Although Cheng’s publication of Pseudotaxus lacks proof of date as to when it became available, it was also questioned as to when it might become available (Florin 1948c); thus, one must first establish absence of proof before accepting the date indicated on the manuscript.  We know when it was received by one institution (Florin 1948c); but when did it become available to a second institution? Authors who have accepted Pseudotaxus (Farr et al. 1979 for the ING; Krüssmann 1972, 1985) have not provided a Latin description in order to satisfy a later publication date, which may be necessary in order for Pseudotaxus to receive protection under names in current use, because it first has to be effectively published before it becomes an issue of priority or conservation.  

     A comparative example here is effective publication of Taxus cuspidata Siebold and Zuccarini. Zuccarini (Siebold & Zuccarini 1843), in describing a new species, T. wallichiana, referred to T. cuspidata in Siebold and Zuccarini's Flora Japonica as if this had already been published; they cited volume numbers and a plate number for T. cuspidata, but the particular volume in which these appeared, did not become available to the public until 27 years later (1870) as determined by Stafleu & Cowan (Taxonomic Literature, 1983, 2nd ed.).  Siebold and Zuccarini (1846) also earlier published a synopsis of the families, genera and species of Japan, and mention of the name of T. cuspidata in this publication, which lacks a description for that species, and has been erroneously cited by many as its valid publication date. Whereas Endlicher (1847) was actually the first to provide a direct description of the species,  Siebold and Zuccarini (1843) had also made indirect reference to a description in Thunberg's (1780) Flora Japonica that can be interpreted as validation for their name, T. cuspidata.

     Florin’s manuscript, also printed matter that was distributed, was submitted in August 1947, but this did not become effectively published until it became available to the public (June 1948).  Since it remains unclear as to when it will be determined as to when Cheng's Pseudotaxus will be, or has been effectively published, Nothotaxus would seem to be the only valid name as Florin did continue to use only that name (e.g., Florin 1951, 1958, 1963).  

     The ICBN does not provide guidance on intellectual rights issues or the parole rule of evidence, both of which seem relevant here, especially in the absence of proof.  The issue of intellectual property rights of discovery (of a genus)—that has been clearly formulated by Florin (1931, 1948a, 1948b)—might conceivably be protected under the Paris Convention of 1883, recognized by nearly 90 countries.  The communications between Florin and Cheng can be interpreted as a form of partnership upon which a basis of law could be established, dating back perhaps to the law of Babylon (approx. 2300 B.C.E.).  Black’s Law Dictionary (1991) defines parol evidence rule as that which “seeks to preserve integrity of written agreements by refusing to permit contracting parties to attempt to alter import of their contract through use of contemporaneous oral declarations.  Under this rule…the terms of the writing may not be varied or contradicted by evidence of any prior written or oral agreement in the absence of fraud, duress, or mutual mistake.”  Cheng’s Pseudotaxus suffers from various contradictions.  One is obviously his stated intention of classifying T. chienii in a new section.  Another is a sudden change in mind with no indication of a subgenus, which might be the next natural step in a revised classification.  Instead, Cheng claimed to have written and published a paper, describing a new genus for T. chienii, all within eight days.  Can one really write (or rewrite) and publish a paper, and effectively distribute it to the public, all within eight days? 

    In all fairness to Cheng, it should be noted that he (Cheng 1934) had recognized Taxus chienii as “a very distinct species...quite different from any other described species of the genus”  based on a number of features of which “glaucous stomatiferous bands”  and “white arillus” stand out. One might speculate that Cheng had contemplated classifying his new species under a new genus, and was prompted to do so more quickly after receiving a letter from Florin indicating placement of his  discovered species (Cheng 1934) was in the press under Florin's generic name. Indeed, Cheng stated in his letter to Florin, “I learned with great interest that you have proposed a name Nothotaxus for the Pseudotaxus of mine. Enclosed please find my paper concerning it.  Since I wrote to you last, I had the opportunity of consulting with some Chinese botanists and I was persuaded to restore it to its original name, Pseudotaxus, which was given by me some years ago in herbarium.  I had restrained myself very strongly and hesitated to make it a suitable choice between a new genus, or new section all these years and had at one time called it Taxus and at another time Pseudotaxus.  I am happy to learn that you have voted for a new genus.”

Supplemental Notes (March 20, 2006; Kew library report added April 03, 2006)

     Since this was first prepared (July 1999 as noted above), the St Louis Code of the ICBN was published (Greuter et al. 2000), and many libraries have amazingly computerized their holdings.  Prior to 1997, I had physically searched for Z(C)heng's publication on Pseudotaxus at the USDA National Agricultural Library (NAL), Library of Congress, Smithsonian Institution Library, US National Arboretum, and Beltsville Agricultural Research Center (Systematic Botany Laboratory). it was not available at these institutions.   I might add that the Library of Congress has rare botanical books not available at the NAL or the Smithsonian, and rare books available at the Library of Congress have not been not noted in Stafleu & Cowan's Taxonomic Literature.  An example is publications by Griffith for Taxus contorta.

     During March 2006, I conducted online inquiries at the Library of Congress, New York Botanical Garden, Royal Botanical Garden Edinburgh, Missouri Botanical Garden, Royal Botanic Gardens Kew, and Harvard University Libraries.  Libraries at three institutions reportedly have Zheng's publication, (1) the New York Botanical Garden, (2) Royal Botanical Gardens Kew and (3) Harvard Hollis Library (with article located at Arnold, Cambridge). The publication may be generally cited as follows:

    Zheng (Cheng) , Wanjun (Wan-chun).  New Chinese Trees and Shrubs. Research Notes. Dendrological Series 1.  National Central University.  Forestry Institute, 1947.  4 p., 27 cm. In English with Chinese summary or summaries.  The series published Irregularly.

Librarians at the institutions where this was reported were then contacted to determine when they may have received this publication.    The following dates of receipt were reported:

                1948 March 22—New York Botanical Garden
                1948 March 24—Harvard, Arnold Arboretum
                1948 April—reported as having been seen by Index Kewensis

     Library databases and one librarian indicated that the Dendrological Series they have is the only one as cited above; it consists of four pages, and only Zheng's report.  Nonetheless, the word series suggests that there should be more.

     Under the ICBN St. Louis Code, Art. 31.2 states that “when separates from periodicals or other works placed on sale are issued in advance, the date on the separate is accepted as the date of effective publication unless there is evidence that it is erroneous.”  The indicated date of publication 20 December 1947 conflicts with the postmarked date of a letter accompanying Zheng's publication 23 Feb. 1948 (Florin 1948b).  Therefore, 20 Dec 1947 cannot be regarded as the effective date of publication.  It should also be noted that Florin reportedly received Cheng's publication on 9 Mar 1948.

     The ICBN provides general limitations as to what constitutes conditions under which printed is considered to have been distributed to the general public.  It cannot be microfilm and it cannot be disseminated by online or other electronic media.  Under Recommendation 30A, it states that “it is strongly recommended that authors avoid publishing new names and descriptions or diagnoses of new taxa in ephemeral printed matter of any kind, in particular printed matter that is multiplied in restricted and uncertain numbers, in which the permanence of the text may be limited, for which effective publication in terms of number of copies is not obvious, or that is unlikely to reach the general public.”

     If this recommendation had been incorporated into the rules, Zheng's publication would not be regarded as an effective publication.  Nevertheless, Zheng's distribution of his printed matter would seem to have met the criteria for effective publication, the date of which I have determined to be is March 1948.

Additional Notes (Jan 2017):  Proposal to conserve the genus Nothotaxus Florin rejected (Janchen 1953).  The photocopy machine (xerography or "xerox copier") was not commercialized until the 1950's.  It would seem that the Cheng's copies originally distributed in 1948 were few in number, have yet to be digitized for public distribution, and were possibly individually created on a typewriter.

References:

Farr, E. R., J. A. Leussink and F. A. Stafleu (eds). 1979. Index nominum genericorum (plantarum). 3 Vols. W. Junk, The Hague.

Florin, R. 1948a. Enumeration of gymnosperms collected on Swedish expeditions to western and northwestern China. Acta Horti. Berg. 14: 343-384.

Florin, R. 1948b. On the morphology and relationships of the Taxaceae. Bot. Gaz. 110: 31-39.

Florin, R. 1948c.  April 1948. Nothotaxus or Pseudotaxus? Botaniska Notiser 1948: 270- 272.

Florin, R. 1948d. On Nothotaxus, a new genus of the Taxaceae, from eastern China. Acta Horti Berg. 14: 385–395, plates 1–3.

Greuter, W., J. McNeill, F. R. Barrie, H. M. Burdet, V. Demoulin, T. S. Filgueiras, D. Nicolson, P. C. Silva, J. E. Skog, P. Trehane, N. J. Turland and D. L. Hawksworth. 2000. International code of botanical nomenclature (Saint Louis Code) adopted by the 16^th International Botanical Congress. St. Louis, MO, July-August 1999. Koeltz Scientific Books, Königstein, Germany.

Janchen, E. 1953. Zur Nomenklatur der Gattungsnamen IV. Proposals Nos 55-73 Submitted to the Paris Congress. Taxon 2: 8 (Nov., 1953), pp. 208-211.

Zheng (Cheng), Wanjun (Wan-chun). 1948. New Chinese Trees and Shrubs. Research Notes. Dendrological Series 1.  National Central University.  Forestry Institute, 1947.  4 p., 27 cm. In English with Chinese summary [Distributed to Florin (Mar 1948), Kew (Mar-Apr 1948), Harvard Library (Mar 1948), New York Botanical Garden (Mar 1948)].

Richard Spjut

EMAIL: richspjut@gmail.com