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Rh full maximum on each chance, and then retire, whether winners or losers, they would then have given the bank the least possible advantage, as they would have subjected themselves to the chances of the zero appearing the least possible number of times. As, however, almost every player wishes to have as long a run for his money as possible, almost all players, whether playing by a so-called system or not, divide their stakes, whether made on an increasing or on a decreasing scale, or haphazard, into a number of comparatively small stakes, so as to stay in the game as long as possible, with the result that the bank's percentage is constantly working against them. The thinner they spread out their money, and the longer they stay in the game, the greater are the chances of their losing their money. If you go into the stock-market and buy the first stock your eye happens to catch on the list, you at least stand an even chance of its going up or down, while your brokerage and stamp charges will not amount to the 1.66 per cent, charged as brokerage by the Casino; whereas in the stock market the action will be comparatively slow, at Monte Carlo the brokerage charge is approximately 1.66 per minute. If fifty coups are played per hour, it means that as brokerage the bank each hour absorbs 83 per cent, of all the money staked for one coup, while each day the bank takes for its commission for permitting you to play there, about ten times the average amount staked on the table at any one time. As Sir Hiram Maxim says, the martingale is the least defective of all the systems. Were there no limit and no zero, this system of 1, 2, 4, 8, 16, 32, etc. must infallibly win, as, whenever a gain is made, no matter how many previous losses there have been, it

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text: Dictionary of National Biography, 1885-1900/Topcliffe, Richard

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: Dictionary of National Biography, 1885-1900/Topham, Edward


text: Dictionary of National Biography, 1885-1900/Topham, Francis William


text: Dictionary of National Biography, 1885-1900/Topham, John


text: Dictionary of National Biography, 1885-1900/Topham, Thomas


text: Dictionary of National Biography, 1885-1900/Toplady, Augustus Montague


text: Dictionary of National Biography, 1885-1900/Topley, William


text: Dictionary of National Biography, 1885-1900/Topsell, Edward


text: Dictionary of National Biography, 1885-1900/Torkington, Richard


text: Dictionary of National Biography, 1885-1900/Torr, William


text: Dictionary of National Biography, 1885-1900/Torre, James


text: Dictionary of National Biography, 1885-1900/Torrens, Arthur Wellesley


text: Dictionary of National Biography, 1885-1900/Torrens, Henry


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Page:Book of the Riviera.djvu/318

252 lands the player a winner of one unit. The defect, however, is that, starting with the minimum stake, the maximum is reached at the eleventh doubling, and a run of eleven is of by no means an infrequent occurrence. Against this the bank protects itself in its most vulnerable place; even then, were its limits removed, yet it would be steadily levying its 1.66 commission. It is accordingly not necessary for the company to have recourse to underhand work as charged by Captain Weihe; the income of £1, 245.008 realised without trickery, on an average stake per table would be 611.55 fr. Any one who has been at Monte Carlo will admit that this is probably very much below the average amount of money on the table at each spin of the wheel; and with such an income, where arises the occasion for illicitly supplementing it? The following is a table of stakes needed to realise the known profits of the company:

611.55 fr., average stake each Bank percentage, 10*15 fr. of 14 tables 8,56170 fr. total stakes at 14 Bank percentage 142-69 fr. tables, 50 coups per hour 428,085.00 fr., average stakes Bank percentage 7, 1347 5 fr. each 12 hours the Casino is open

5,137,020.00 fr., total daily Bank percentage 85,617.00 fr. stakes, 365 days a year Casino is open 1,875,012,300-00 fr., total Bank percentage 31,250,205-00 fr. yearly stakes

£75,000,492 sterling equivalent Bank percentage £1,245,008

Thus enabling the bank on average stakes of 611-55 francs to realise £1,245,008. But it must be remembered

title: Page:Book of the Riviera.djvu/318


text: Dictionary of National Biography, 1885-1900/Torrens, Robert (1780-1864)


text: Dictionary of National Biography, 1885-1900/Torrens, William Torrens McCullagh


text: Dictionary of National Biography, 1885-1900/Torrigiano, Pietro


text: Dictionary of National Biography, 1885-1900/Torshell, Samuel


text:
Geary v. Visitation of Blessed Virgin Mary School/Opinion of the Court

[p325] OPINION OF THE COURT

MANSMANN, Circuit Judge.

We must determine whether the Age Discrimination in Employment Act applies to protect a lay teacher in a church-operated elementary school. The district court concluded broadly that it does not. We disagree and conclude that it may. We caution, however, that when a religious employer contends that a religious tenet or practice -- not illegal discrimination -- motivated a challenged employment action, the ADEA will apply only so long as the plaintiff does not challenge the validity of the doctrine or practice and asks no more than whether the proffered religious reason actually motivated the employment action.

Here the plaintiff argues that the proffered religious reason did not actually motivate her termination. We will affirm the judgment against her in part because in her opposition to summary judgment, she did not raise any issue of fact to suggest that her [p326]  employer had other than a religious motive. Nonetheless, she did raise a genuine issue of material fact as to whether her employer retaliated against her (by canceling her insurance) in violation of the ADEA (a separate count of her complaint). Thus we will vacate the judgment with respect to the retaliation claim and remand for further proceedings.

I.
For purposes of the motion for summary judgment in the district court, the historical facts were straightforward and were not in dispute. The appellee, Visitation of the Blessed Virgin Mary Parish School, dismissed Marie Geary after she turned 50 and after her twenty-ninth year as a lay teacher there. Geary had previously received favorable reviews and asserts that she would have been Visitation School's highest paid lay teacher. In her stead, Visitation School hired a younger, lower-paid teacher.

As the reason for dismissal, Visitation School stated that Geary had violated Church doctrine by marrying a divorced man. Geary does not dispute that she violated Church doctrine, but she claims that this reason is pretext, and she argues that her age and salary motivated the dismissal.

After Geary instituted an EEOC action, Visitation School canceled her health coverage and indicated that the cancellation was "necessitated" by Geary's legal action. The EEOC found that the dismissal did not violate the ADEA but that the retaliatory cancellation did.

Following the EEOC determination, Geary filed a civil action in the United States District Court for the Eastern District of Pennsylvania. She alleged violations of the ADEA, intentional infliction of emotional distress, and wrongful discharge. The district court held broadly that the ADEA does not apply to religious schools. The court also held that Geary's state claims for emotional distress and wrongful discharge were without merit. The court then granted summary judgment in favor of the defendants. Geary appealed.

We have jurisdiction over the final decision of the district court, 28 U.S.C. § 1291, in which federal subject matter jurisdiction was premised on a federal question and on supplemental claims. 28 U.S.C. §§ 1331, 1367.

We exercise plenary review of the district court's grant of summary judgment, and we apply the same test the district court should have applied initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S.C.t. 732 (1977).

II.
The ADEA prohibits age discrimination and makes it unlawful to retaliate against an employee who litigates an age discrimination claim. See 29 U.S.C. § 623(a), (d). We determine whether the First Amendment prohibits application of the ADEA to a religious school by following the inquiry set forth in N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 59 L. Ed. 2d 533, 99 S.C.t. 1313 (1979). In Catholic Bishop, Catholic high schools challenged the National Labor Relations Board's exercise of jurisdiction over lay faculty members of religious schools. In addressing that challenge, the Court invoked the interpretive rule "that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available." 440 U.S. at 500. [p327] To implement the rule, the Court first "made a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment [would] be infringed." Id. at 502 (emphasis added).

Upon making that inquiry, the Court determined that two aspects of the Board's exercise of jurisdiction would create a significant risk of excessive government entanglement in religion. First, the Court referred to a situation in which a religious school, charged with an unfair labor practice, responds with an assertion that religion mandates the challenged action:

"The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge in rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions."

440 U.S. at 502.

Second, the Court noted that religion pervades parochial schools, and that nearly everything that occurs in the schools is arguably a "condition of employment." Therefore, the Board's function in determining the "conditions of employment" would present a significant risk of government-religion entanglement. 440 U.S. at 502-04.

Having determined that the exercise of jurisdiction posed a significant risk of violating the First Amendment, the Court considered whether Congress intended the Board to have jurisdiction over teachers in church-related schools. The Court observed that "there is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act." 440 U.S. at 504. After further examining the statute, the Court "declined to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses." Id. at 507. Because the Court did not interpret the Act to grant the Board jurisdiction over parochial schools, the Court never addressed whether such jurisdiction would pass constitutional muster.

In sum, in Catholic Bishop the Court employed a three-part inquiry. First, a threshold question: would application of the statute present a significant risk of infringing the First Amendment? Second, the interpretive rule: is there a permissible construction of the statute that avoids that risk, or alternatively, is there a clear expression that Congress intended that the statute apply? And, third: if the statute applies, does it violate the Religion Clauses of the First Amendment?

Since Catholic Bishop, the Court has indicated that religious institutions are subject to some regulation. See Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 628, 91 L. Ed. 2d 512, 106 S.C.t. 2718 (1986) ("even religious schools cannot claim to be virtually free from some state regulation"); see also Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S.C.t. 1595 (1990), (the Religion Clauses alone do not bar application of a neutral, generally applicable criminal law to religiously motivated action) ("Smith II"). Our task is to determine, by following the inquiry set forth in Catholic Bishop, whether the ADEA may be applied to Visitation School. See, e.g., Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991) (applying Catholic Bishop to Title VII case); [p328] DeMarco v. Holy Cross High School, 4 F.3d 166, 1993 U.S. App. LEXIS 22423, at * 5 (2d Cir. 1993) (applying Catholic Bishop to ADEA case). See also "Smith I", 485 U.S. 660, 672-73, 99 L. Ed. 2d 753, 108 S.C.t. 1444 (1988) (refusing to assume that Oregon's neutral drug law applied to religious uses and remanding for determination by Oregon Supreme Court).

A.
Applying the first prong of the Catholic Bishop inquiry to the facts here, we conclude that application of the ADEA to the lay faculty of a religious school does not present a significant risk of entanglement. Figuring prominently in our conclusion is the distinction between, on the one hand, the Board's pervasive jurisdiction in Catholic Bishop and, on the other hand, the simple prohibitions of the ADEA. In Catholic Bishop, the Court observed that the Board's function in supervising "conditions of employment" would inject the Board into "nearly everything" that occurs in a religious school, including, of course, religious practices. Here, the ADEA's inquiry is only whether Visitation School discriminated against Geary on the basis of age, and further, whether Visitation School canceled Geary's insurance in retaliation for her suit. The Court of Appeals for the Second Circuit recently drew this same distinction in an ADEA suit brought by a lay employee against a Catholic School. See DeMarco, 1993 U.S. App. LEXIS, at * 8 (recognizing distinction between "ongoing supervision" and "limited inquiry"); id. at * 9 (sole question in ADEA case is whether plaintiff was unjustifiably treated differently because of age).

The Court of Appeals for the Ninth Circuit has also drawn this distinction between pervasive supervision and simple prohibition. In ''EEOC v. Pacific Press Pub. Assoc.,'' 676 F.2d 1272, 1282 (9th Cir. 1982), which applied Title VII's prohibitions of sex discrimination to protect a secretary at a religious publisher, the court observed:

"The potential for ongoing entanglement or continuous supervision of church affairs by the government's regulations is the critical entanglement issue which deserves the most emphasis."

Pacific Press, 676 F.2d at 1282. See also EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980) (holding that Title VII's prohibition of racial discrimination protected a faculty member at a religious college); Ritter v. Mount Saint Mary's College, 814 F.2d 986 n.1 (4th Cir. 1987) (ADEA action does not present a significant risk of infringing First Amendment).

Apart from the distinction between ongoing supervision and limited inquiry, another consideration prompts our conclusion that application of the ADEA will not create a significant risk of entanglement. There is an absence here of any direct conflict between the ADEA's secular prohibition and the proffered religious doctrine. Visitation School does not suggest that the Catholic religion mandates age discrimination, nor does Geary suggest that the ADEA prohibits Visitation School's right to implement Catholic teachings on marriage. Although such a direct conflict has led to our application of Catholic Bishop's interpretive rule, see Little, 929 F.2d at 951, we do not here imply that a direct conflict would render a neutral law of general applicability inapplicable to a religious institution. See Smith II, 494 U.S. at 872. We note only that because there is no direct conflict here, we do not have occasion to invoke the interpretive rule of Catholic Bishop or the precepts of Smith II.

This case thus differs from Little v. Wuerl, 929 F.2d at 944, in which Susan Little, like Geary, lost her teaching job at a Catholic school after she had entered into a canonically invalid marriage. Unlike Geary, Little claimed that her employer had violated Title VII's prohibition of religious discrimination. Employing the three-part Catholic Bishop inquiry, we found, first, that subjecting the employer to a claim of religious discrimination would raise substantial questions under the Religion Clauses. Little, 929 F.2d at 947-49. We noted that

"if this court were to review the Parish's decision, it would be forced to determine what constitutes 'the official teachings, doctrine or laws of the Roman Catholic [p329] Church' and whether plaintiff has 'rejected' them."

Id. at 948. We further noted that:

"In this case, the inquiry into the employer's religious mission is not only likely, but inevitable, because the [employer's] specific claim is that the employees' beliefs or practices make her unfit to advance that mission. It is difficult to imagine an area of the employment relationship less fit for scrutiny by secular courts. Even if the employer ultimately prevails, the process of review itself might be excessive entanglement."

Id. at 949 (emphasis in original).

Having determined that application of Title VII would raise constitutional concerns, we further determined that "neither Title VII's plain language, nor its legislative history, demonstrates Congress' affirmative intent that Title VII apply here." 929 F.2d at 951. We held, therefore, that Little did not have a Title VII claim against the Parish. Id.

Unlike Little's claim, Geary's claims do not inevitably or even necessarily lead to government inquiry into Visitation School's religious mission or doctrines. Geary's retaliation claim illustrates this point well. Because Visitation School does not claim that its religious practices require the cancellation of her insurance employment benefits in response to her claims, and because Visitation School does not claim that the cancellation was motivated by some non-retaliatory religious reason, the prosection of that claim will not lead to any inquiry regarding Church doctrine.

B.
We are mindful that some age discrimination cases will touch upon First Amendment concerns. First, a religious institution may argue that religion mandates age discrimination. Second, a religious institution may argue that a permissible religion-based discrimination formed the true motive for the action challenged by the plaintiff. We reiterate that Geary's case does not present the first type of argument, and we need not invoke Catholic Bishop or Smith II on that basis.

Here, we face the second type of argument, typical in a "pretext" case, in which an employer argues that its action flowed from a permissible motive (here, religion) rather than from the alleged, unlawful motive (age). So long as Geary does not challenge the validity of the religious doctrine (and she does not), this second argument does not raise entanglement concerns sufficient to invoke the interpretive rule of Catholic Bishop. At most, Geary asks the court to determine whether the religious reason stated by Visitation School actually motivated the dismissal.

For example, before the EEOC, Geary tried to show pretext by arguing that Visitation School had not fired a similarly remarried teacher. The hearing officer found:

"Charging Party [Geary] compared herself to another teacher, who married in a civil ceremony, but continues to be employed with the [School]. First, the record shows that her comparator, who is ten years older than the Charging Party, remarried her former husband. Since neither party remarried, [p330] the church does not recognize this couple as having been divorced."

R. at 37.

As the hearing officer's findings indicate, this avenue for showing pretext only required the hearing officer to apply uncontested Church doctrines regarding marriage to conclude that Visitation School's justification was in fact the reason for the termination. Had Visitation School been unable to explain the allegedly disparate treatment of Geary and of her "comparator," the officer might have rendered, without entanglement, a different conclusion regarding the school's motive for termination.

A conclusion that the religious reason did not in fact motivate dismissal would not implicate entanglement since that conclusion implies nothing about the validity of the religious doctrine or practice and, further, implies very little even about the good faith with which the doctrine was advanced to explain the dismissal. See Hicks, 61 U.S.L.W. at 4787 (to say that the company which in good faith introduces testimony of intent becomes a liar when the testimony is not believed is nothing short of absurd).

Assuming arguendo that a determination of pretext implies, no matter in how attenuated a form, a rejection of a religious organization's "good faith" in proffering a reason for its action, the determination would not run afoul of the entanglement concerns in Catholic Bishop. Catholic Bishop concerned a legislative scheme in which a government body could, sua sponte, challenge any religious doctrine or practice and then directly inquire into the good faith of the religious reason for it. In an ADEA case, the inquiry is far more limited and any determination of pretext would implicate good faith only indirectly in the context of litigation.

Finally, although Catholic Bishop expressed concern with the "process of inquiry" into the Church doctrine, see id. 440 U.S. at 502 n.10, & 507-08 (appendix involving murky inquiry into the definition of a Catholic liturgy), we do not envision any such inquiry in a pretext case such as this. The secular tribunal merely asks whether a sincerely held religious belief actually motivated the institution's actions. The institution, at most, is called upon to explain the application of its own doctrines. Such an explanation is no more onerous than is the initial burden of any institution in any First Amendment litigation to advance and explain a sincerely held religious belief as the basis of a defense or claim. Indeed, because the court in an ADEA case should not examine either the validity or the religious nature of the doctrine, the burden of the religious institution to explain is considerably lighter than in a non-religious employer case. Compare Africa v. Commonwealth, 662 F.2d 1025 (3d Cir. 1981) (determining that a prisoner's beliefs, although sincere, were not "religious").

Thus, when the pretext inquiry neither traverses questions of the validity of religious beliefs nor forces a court to choose between parties' competing religious visions, that inquiry does not present a significant risk of entanglement. However, the First Amendment dictates that a plaintiff may not challenge the validity, existence or "plausibility" of a proffered religious doctrine, and we caution that the ADEA would not apply in such a case. Accord DeMarco, 4 F.3d 166, 1993 U.S. App. LEXIS 22423, at 14-15.

Indeed, when the employee who challenges an employment decision is a member of the clergy, some courts have refused to allow even this limited inquiry into pretext. For example, in Scharon v. St. Luke's Episcopal Presbyterian Hosp., 929 F.2d 360, 363 (8th Cir. 1991), the employee, the Reverend Anne Scharon, was an ordained Episcopal priest. She argued that excessive entanglement could be avoided because the defendants' claims that religious issues had been the basis for her termination were merely pretext for the actual motive. Therefore, she asserted, government involvement with religion could be avoided by focusing solely on the issues of age and sex discrimination. Id. at 363. The Court of Appeals for the Eighth Circuit held otherwise:

"As the Supreme Court said in Catholic Bishop, 440 U.S. at 502, 'the resolution of such charges . . . will necessarily involve inquiry into the good [p331] faith of the position asserted by the clergy-administrators . . . . It is not only the conclusions that may be reached . . . which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry.' See also Minker v. Baltimore Annual Conference of United Methodist Church, 282 U.S. App. D.C. 314, 894 F.2d 1354, 1356057 (D.C. Cir. 1990) (In rejecting a minister's ADEA claim, the court noted that the 'determination of 'whose voice speaks for the church' is per se a religious matter. . . . We cannot imagine an inquiry less suited to a temporal court.') . . .."

Scharon, 929 F.2d at 363.

The court in Scharon drew an express distinction between cases in which clergy were involved and cases in which employees did not have duties of a religious nature. See id., 929 F.2d at 363 n.3 (observing that courts subject personnel decisions of religious organizations to scrutiny where duties of employees are not religious and citing inter alia Pacific Press, 646 F.2d at 1272, and Mississippi College, 626 F.2d at 477). The court expressed

"confidence that courts will continue to consider these situations on a case-by-case basis, looking in each case to see whether the plaintiff's employment discrimination claim can be adjudicated without entangling the court in matters of religion."

Scharon, 929 F.2d at 363 n.3. See also DeMarco, 1993 U.S. App. LEXIS * 16- * 17.

Regarding Geary's religious duties, Visitation School explained that "the unique and important role of the elementary school teacher in the Catholic education system mandates [a] commitment to the philosophy and principles of the Catholic Church." Appellees' Brief at 3, n.2. We believe, however, that notwithstanding Geary's apparent general employment obligation to be a visible witness to the Catholic Church's philosophy and principles, a court could adjudicate Geary's claims without the entanglement that would follow were employment of clergy or religious leaders involved. Compare DeMarco, 1993 U.S. App. LEXIS at * 17 (distinguishing case in which employer/employee relation is so pervasively religious that no pretext inquiry can be made without offending First Amendment, and case in which references to employee's religious inadequacy are limited to very specific, testable allegations).

C.
Because application of the ADEA does not present a significant risk of government entanglement in religion, the interpretive rule of Catholic Bishop does not apply and we need not seek evidence of an "affirmative intention of Congress" that the ADEA apply to lay teachers at religious institutions. Even if such evidence were necessary, the structure of the ADEA suggests that Congress intended a general application. The ADEA's substantive provisions were derived in haec verba from Title VII. ''EEOC v. Zippo Mfg. Co.,'' 713 F.2d 32, 38 (3d Cir. 1983) (quoting Lorillard v. Pons, 434 U.S. 575, 584, 55 L. Ed. 2d 40, 98 S.C.t. 866 (1978)). Therefore, since religious institutions are not exempt from Title VII's prohibitions of discrimination on the basis of race, color, sex and national origin, see, e.g., EEOC v. Christian Fremont School, 781 F.2d 1362 (9th Cir. 1986) (sex discrimination); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985), cert. denied, 478 U.S. 1020, 92 L. Ed. 2d 739, 106 S.C.t. 3333 (1986); Pacific Press, 676 F.2d at 1277; Mississippi College, 626 F.2d at 477, neither are they exempt from the ADEA's prohibition of age discrimination. Accord, DeMarco, 1993 U.S. App. LEXIS, at * 20- * 23 (because Title VII applies to religious institutions and ADEA is modeled on Title VII, Congress intended ADEA to apply to religious institutions).

IV.
Although Geary could bring a claim against Visitation School under the ADEA, she was required under McDonnell Douglas to refute Visitation School's proffer of a legitimate reason for her dismissal. See, e.g., Burdine, 450 U.S. at 252-53. Any challenge to the validity or "plausibility" of the religious reason would of course do damage to the protection afforded Visitation School by the First Amendment, see, e.g., DeMarco, but Geary might have [p332]  demonstrated, for example, that similarly remarried persons had not been fired, that she did not in fact marry, or that Visitation School's explanation did not emerge until late in the litigation. Geary, however, did not make any such demonstration in opposition to Visitation School's motion for summary judgment. Indeed, Geary did not contest that she in fact violated the very doctrine that Visitation School claimed as the reason for her dismissal, and she did not present any evidence that would suggest a non-religious basis for her dismissal.

We have thus determined that, with respect to Geary's age discrimination claim and with respect to her state claims, Geary failed to comply with Rule 56(e). Geary failed to include any affidavits or other competent documents to set forth facts showing that there was a genuine issue of fact as to the reason for her discharge. She merely alleges in the Brief In Opposition that she "believes that her age was the determinative factor," that she was one of the highest paid teachers, that she was fifty years old at the time, and that she was replaced by a younger, less experienced and lower paid teacher.

Moreover, although discovery had not yet taken place, Geary failed to include an affidavit under Rule 56(f) to indicate why she could not present facts essential to justify her opposition. See FRCP 56(f); see also Celotex Corp. v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S.C.t. 2548 (1986) (premature motions for summary judgment can be adequately dealt with under Rule 56(f)).

Thus, we will affirm the district court's entry of summary judgment on the discrimination claim and state claims in favor of the defendants.

V.
With respect to Geary's retaliation claim, which Visitation School concedes does not present any First Amendment issues, we note that Geary attached Visitation School's letter canceling her health coverage to her Brief In Opposition. The letter expressly links the cancellation of health benefits to the ADEA action. Thus it adequately raises an issue of fact for trial on Geary's retaliation claim.

VI.
For the foregoing reasons, we will vacate in part the judgment of the district court, and we will remand the case for further proceedings on Geary's retaliation claim. On all other claims we will affirm the judgment entered in favor of defendants.


text: Dictionary of National Biography, 1885-1900/Tostig


text: Dictionary of National Biography, 1885-1900/Toto, Anthony


text: Dictionary of National Biography, 1885-1900/Tottel, Richard


text:
Page:Book of the Riviera.djvu/322

254 and, to the perplexity of the chaplain, next Sunday half his congregation left the chapel during the hymn before the sermon and rushed off to the Casino to back the number of the hymn. After this it became the rule at the Monte Carlo English chapel never thenceforth to give out a number under thirty-seven before the sermon. On the promontory of La Veille at the water's edge is a grotto. When Edward Augustus, Duke of York, brother to George III., was on his way to Italy on a man-of-war, feeling too ill to proceed he was landed at Monaco and received into the palace, where he died in 1767. The body was embalmed and taken to London. Fishermen always make the sign of the cross when passing the entrance of the Grotte de la Veille, for they say that when the vessel on which was the Duke of York arrived in the bay, a white form was seen, as that of a woman, at the entrance, watching the evolutions of the ship. After the Duke was removed she still remained visible, with her face turned towards the palace. She was again seen when the cannon announced his death, and again when his body was removed. The sailors hurry by the cave, and will on no account enter it. It might be as well if travellers crossed themselves and hurried by, instead of allowing themselves to be drawn into the halls of the Circe of Gambling on the top of the cliff.

title: Page:Book of the Riviera.djvu/322


text: Dictionary of National Biography, 1885-1900/Tottenham, Charles


text: Dictionary of National Biography, 1885-1900/Touchet, George


text: Dictionary of National Biography, 1885-1900/Touchet, James (1465?-1497)


text: Dictionary of National Biography, 1885-1900/Touchet, James (1617?-1684)


text: Dictionary of National Biography, 1885-1900/Toulmin, Camilla Dufour


text: Dictionary of National Biography, 1885-1900/Toulmin, Joshua


text:
Page:Book of the Riviera.djvu/321

Rh that it is only during the winter season that considerable play takes place at Monte Carlo. Also that before profits are declared the prince has to pocket his share, all the officials have to be paid, the police, the lighting, the gardens have to be kept going, and the scores of unacknowledged dependents on the Casino have to receive enough to maintain them. Every season a little book appears, advocating an infallible system, and some of these cost twenty-five francs. Of course, every system is based on the assumption that there is no trickery. But if there be trickery, not one of these systems is worth the cost of the book that advocates it. "Le rouge gagne quelque fois, le noir gagne quelque fois, le blanc toujours." A very good story is told by " V. B." in Monte Carlo Anecdotes, London, 1901. A few years ago a nobleman attended the English chapel and slipped out as the hymn was being sung before the sermon, as he went for worship and not be bored with the discourse. Now the hymn was No. 32, Ancient and Modern. He sauntered up to the Casino whistling the tune, and as he entered the rooms he heard, "Trente-deux, rouge, pair et passe!" sung out from the table on his right; and then from that on his left, "Trente-deux, rouge, pair et passe." "Bless my soul!" said he, "that is the number of the hymn; be hanged if I won't stake on it." He hurriedly felt in his pocket, and going to the third table he announced, "Trente-deux en plein, les quatres chevaux, et quatres carrés par cinq francs"; and up rolled the number. To make a long story short, by passing from table to table, and by constantly clinging to 32 with gradually increasing stakes, he left the rooms with over £500 in his pocket. But this got wind,

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text:
In re Madden

On Appeal from the United States District Court For the Western District of Pennsylvania. (D.C. Civil No. 96-MC-00681).

Reversed and remanded.

Robert L. Byer, Esq. (Argued), Jerry S. McDevitt, Esq., Paul K. Stockman, Esq., Kristen M. Del Sole, Esq., Kirkpatrick and Lockhart, 1500 Oliver Building, Pittsburgh, Pennsylvania 15222, Counsel for Appellant.

David Dunn, Esq., John H. Pope, Esq. (Argued), Davis, Scott, Weber & Edwards, 100 Park Avenue - 32nd Floor, New York, New York 10017, Counsel for Appellees.

Before: NYGAARD, ALITO and LAY, Circuit Judges.

title: In re Madden


text:
Page:Book of the Riviera.djvu/324

256 it, intervening between it and the Mediterranean. Now in leaving Nice by the Corniche Road we can see this formation, we learn how the Alps describe a great arc; but this is lost to us in the train, hugging the seashore and diving in and out of tunnels. It is only by the Corniche Road, when we have reached La Turbie, that we discern how specially privileged are Mentone and the Italian Riviera. We see before us an amphitheatre, with mountain stages, and the blue sea for arena. The mountains run up to 3,000 and 4,000 feet, and wall about the fertile bottom, the seats about the sea, sheltering them from every blast. The higher mountains of grey limestone are bare, but below all is rich with luxuriant vegetation.

"The entire bay and the town of Mentone, with its background of swelling, olive-clad hills closed in by the amphitheatre of mountains, are thus thoroughly protected from the north-west, north, and north-east winds. To thoroughly understand and appreciate the district and its singularly protected character, a boat should be taken, and the panorama viewed a mile or two from the shore. The extreme beauty of the coast will amply repay the trouble. Thus seen, all the details are blended into one harmonious whole; the two bays becoming one, and the little town scarcely dividing them. The grandeur of the semicircular range of mountains, generally steeped in glorious sunshine, also comes out in broad outline. These mountains positively appear to all but encircle the Mentonian amphitheatre in their arms, to thus separate it and its inhabitants from theworld at large, and to present it to the blue Mediterranean waves and to the warm southern sunshine.

"Behind the mountains which thus form the background of the Mentonian valleys, are still higher mountains, rising in successive ranges to an altitude of from 5,000 to 9,000 feet.

title: Page:Book of the Riviera.djvu/324


text:
In re Madden/Opinion of the Court

[p126] AMENDED OPINION OF THE COURT

NYGAARD, Circuit Judge.

The issue on appeal is whether the district court erred by concluding that Mark Madden, a nonparty witness in this civil matter, is entitled to claim a journalist's privilege. We hold that he is not and will reverse.

I.
We will summarize only those facts necessary to give context to the issue. Appellant Titan Sports, Inc., and its competitor, Turner Broadcasting Systems (TBS), are the most prominent professional wrestling promoters in the United States. TBS's "World Championship Wrestling" (WCW) has challenged Titan's "World Wrestling Federation" (WWF) to engage in "interpromotional events," wherein WCW wrestling personalities would compete with WWF personalities. Titan has refused to permit any of its wrestlers to engage in the activities.

Titan sued TBS in the United States District Court for the District of Connecticut alleging unfair trade practices, copyright infringement and other pendent state law claims, none of which are germane to this appeal. Titan Sports Inc. v. Turner Broadcasting Systems, Inc., 981 F. Supp. 65 (D. Conn.) (the Connecticut action). As part of the discovery process in the Connecticut action, however, Titan issued a subpoena to take the deposition of Mark Madden, a nonparty witness who is employed by WCW, and resided in the Western District of Pennsylvania.

WCW employs Madden to produce tape-recorded commentaries, which are replayed to callers on WCW's 900-number hotline. These commentaries promote upcoming WCW wrestling events and pay-per-view television programs, announce the results of wrestling matches and discuss wrestlers' personal lives and careers. Madden asserts that in the course of preparing statements for the WCW hotline, he receives information from confidential sources. He admits, however, that his announcements are as much entertainment as journalism.

During a deposition, Madden refused to identify the sources of certain of his allegedly false and misleading statements recorded for the WCW's 900-number hotline. Madden, through counsel, invoked a "journalist's privilege" and the protection of the Pennsylvania Journalist's Shield Law, [p127] 42 Pa. Cons. Stat. Ann. § 5942. Titan filed a "Motion to Enforce Subpoena and Otherwise Compel Discovery by a Nonmoving Party." After Titan moved to enforce the subpoena, counsel for Madden and the WCW interposed the qualified federal common law privilege which protects journalists from revealing their confidential sources.

The district court denied Titan's motion insofar as it sought to compel Madden to identify the sources from which he got information for his commentaries. The district court concluded that Madden was a "journalist" with standing to assert the privilege because he intended to disseminate information to third parties. The district court also held that Madden's interest in protecting his sources was not outweighed by the need for disclosure. Titan now appeals.

II.
The somewhat unusual procedural posture of this case requires that we discuss briefly our jurisdiction to hear this appeal. We have jurisdiction over "all final decisions of the district courts. . ." 28 U.S.C. § 1291. A final decision of a district court means, with limited exceptions, an order that ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.C.t. 2454, 2457, 57 L. Ed. 2d 351 (1978). Ordinarily, a pretrial discovery order such as this one is not considered final. Enprotech Corp. v. Renda, 983 F.2d 17, 20-21, (3rd Cir. 1993), (an order denying a pretrial civil discovery motion to compel production of a document was not final and appealable). The typical remedy for one aggrieved by an order denying a discovery request is to await final judgment before appealing. Id.

The order appealed from in this case is not a typical discovery order. Although it relates to discovery and the deposition of a nonparty witness, it was not entered by the district court where the case was filed and is currently pending. The district court for the District of Connecticut will ultimately rule on the merits, and an appeal from its final judgment will be heard by the Court of Appeals for the Second Circuit. Other courts have recognized an "exception to the nonfinality of discovery orders where a district court, other than the district court before which the main action is pending, issues an order denying discovery against a nonparty." Hooker v. Continental Life Insurance Co., 965 F.2d 903, 905 (10th Cir. 1992); citing ''Truswal Sys. Corp. v. Hydro-Air Eng'n, Inc.,'' 813 F.2d 1207, 1209 (Fed. Cir. 1987). The premise for this exception is that these orders involve nonparties and are issued by district courts other than the one in which the principal action is pending, thereby eliminating any avenue for effective appellate review.

We agree with this premise but believe, rather than as an exception, finality for purposes of our jurisdiction in this circumstance is determined more directly by asking whether the aggrieved entity has any means, other than an immediate appeal before us, to obtain appellate review of the district court's decision. For Titan, the answer is no, because the Court of Appeals for the Second Circuit does not have jurisdiction to review this order of the Western District of Pennsylvania. Were we to reject jurisdiction, appellate review of this order would be impossible. Consequently, because we are the only forum that may review the decision, we deem it final and conclude that we have jurisdiction under 28 U.S.C. § 1291 to review it.

III.
The decision we review is the district court's order granting a journalist's [p128]  privilege to Madden. The issue is whether he has status as a journalist to invoke the protections of the privilege. We conclude that he does not. Because this is a purely legal question, our review is plenary. ''Bradgate Assoc. v. Fellows, Read & Assoc.'', 999 F.2d 745, 749 (3d Cir. 1993). We note at the outset that testimonial exclusionary rules and privileges are not favored. Indeed, the Supreme Court has not shown enthusiasm for the creation of constitutional privileges because these privileges "contravene a fundamental principle of our jurisprudence that the public has a right to every man's evidence." United States v. Bryan, 339 U.S. 323, 331, 70 S.C.t. 724, 730, 94 L. Ed. 884 (1950). Such privileges should not be "lightly created or expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 94 S.C.t. 3090, 3108, 41 L. Ed. 2d 1039 (1974). Pretrial discovery is therefore, "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.C.t. 385, 392, 91 L. Ed. 451 (1947). If no claim of privilege applies, a non-party can be compelled to produce any matter "relevant to the subject matter involved in the pending action" or "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Nonetheless, we have recognized that when a journalist, in the course of gathering the news, acquires facts that become a target of discovery, a qualified privilege against compelled disclosure appertains. Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979) (journalist's privilege for civil cases); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) (journalist's privilege for criminal cases). Premised upon the First Amendment, the privilege recognizes society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public. It is an interest of "sufficient legal importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." Herbert v. Lando, 441 U.S. 153, 183, 99 S.C.t. 1635, 1652, 60 L. Ed. 2d 115 (Brennan, J., dissenting).

Although we have determined that a journalist's privilege exists, we have never decided who qualifies as a "journalist" for purposes of asserting it. The Supreme Court has warned of the difficulties in such an undertaking:

"Sooner or later, it [will] become necessary to define those categories of newsmen who qualify for the privilege -- a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer just as much as the large, metropolitan publisher."

Branzburg v. Hayes, 408 U.S. 665, 703-04, 92 S.C.t. 2646, 2668, 33 L. Ed. 2d 626 (1972).

We have found few cases that discuss who, beyond those employed by the traditional media, has status to raise the journalist's privilege. Courts have previously permitted documentary film-makers to invoke the protections of the journalist's privilege. See Silkwood v. Kerr-McGee, 563 F.2d 433, 436 (10th Cir. 1977). Also, authors of technical publications and professional investigative books have been permitted to claim the privilege. ''See Apicella v. McNeil Lab. Inc., 66 F.R.D. 78 (E.D.N.Y. 1975) (technical publications are within the scope of journalist's privilege because the traditional doctrine of freedom of the press is the right of all types of reporters); Shoen v. Shoen,'' 5 F.3d 1289, 1293 (9th Cir. 1993) (professional investigative book author has status to claim journalist's privilege). No other court, however, has considered whether the privilege may be invoked by those like Madden who are neither "pamphleteers" nor "metropolitan publishers," and certainly not engaged in investigating, publishing, reporting or broadcasting in the traditional sense.

To date, only one other court of appeals has fashioned a test to answer the question of who has status to invoke a journalistic privilege. In von Bulow v. von Bulow, the Court of Appeals for the Second Circuit identified the principles underlying the application of the journalist's privilege. 811 F.2d 136, 142 (2nd Cir. 1987). First, the court recognized that the process of newsgathering is a protected, albeit qualified, right under the First Amendment. This right emanates from the strong public policy supporting the [p129]  unfettered communication of information by a journalist to the public. Second, the court required a true journalist, at the beginning of the news-gathering process, to have the intention of disseminating her information to the public. Third, the court stated that an individual may successfully claim the journalist's privilege if she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and her sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be protected.

In holding that "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use the material in order to disseminate information for the public and such intent must have existed at the inception of the newsgathering process," the court turned to its opinion in Baker v. F&F Investment, 470 F.2d 778 (2nd Cir. 1972). Baker was a civil rights case in which it was alleged that racial discrimination was practiced in the sale of housing in Chicago. During discovery, the plaintiffs deposed the editor of the Columbia Journalism Review, who had written an article on "blockbusting" -- an allegedly illegal housing application process -- ten years earlier. That article, which had been published in the Saturday Evening Post, had been based, in part, on information forwarded to the editor by an anonymous real estate agent. The editor refused to disclose the identity of the real estate agent at deposition.

The court held that the editor could not be compelled to disclose the identity of his source. Central to the court's holding was its concern that the "deterrent effect such disclosure is likely to have upon future 'undercover' investigative reporting . . . threatens freedom of the press and the public's need to be informed." Id. at 782 (emphasis in original). Based on the rationale of Baker, the court concluded that "the critical question in determining if a person falls within the class of persons protected by the journalist's privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation." von Bulow, 811 F.2d at 143. In contrast, a person who "gathers information for personal reasons, unrelated to dissemination of information to the public, will not be deterred from undertaking his search simply by rules which permit discovery of that information in a later civil proceeding." Id. In other words, von Bulow holds that the purpose of the journalist's privilege was not solely to protect newspaper or television reporters, but to protect the activity of "investigative reporting." Id. at 142-43.

Indeed, in adopting the test set forth in the von Bulow decision, the Court of Appeals for the Ninth Circuit has indicated that the journalist's privilege was designed not to protect a particular journalist, but "the activity of investigative reporting more generally." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Thus, "it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." 811 F.2d at 144 (quoting Lovell v. Griffin, 303 U.S. 444, 452, 58 S.C.t. 666, 669, 82 L. Ed. 949 (1938)).

We find the reasoning of the court in von Bulow, and by extension in Shoen to be persuasive. In our view, the von Bulow test is consistent with the goals and concerns that underlie the journalist's privilege. Because this test emphasizes the intent behind the newsgathering process rather than the mode of dissemination, it is consistent with the Supreme Court's recognition that the "press" includes all publications that contribute to the free flow of information. See Lovell, 303 U.S. at 452, 58 S.C.t. at 669 (1938). This test is also consistent with the Supreme Court's concerns that the privilege apply only to legitimate members of the press. Id. at 457, 58 S.C.t. at 674. This test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is only available to persons whose purposes are those traditionally [p130] inherent to the press; persons gathering news for publication. It is the burden of the party claiming the privilege to establish their right to its protection. von Bulow, 811 F.2d at 144.

The district court correctly looked to von Bulow as the appropriate test to use in determining who qualifies as a "journalist" for purposes of claiming privilege. We believe, however, that the district court read the von Bulow decision too expansively and in doing so elided the requirement that the individual be engaged in the activity of news gathering or investigative reporting. The district court believed that because Madden "sought, gathered or received" materials from the WCW with the intention of disseminating that material, he was a journalist. We conclude that more is required to claim the privilege.

As we have indicated previously, we agree with von Bulow that the person claiming privilege must be engaged in the process of "investigative reporting" or "news gathering." Moreover, we agree with Shoen, which held that the critical question for deciding whether a person may invoke the journalist's privilege is "whether she is gathering news for dissemination to the public." Shoen, 5 F.3d at 1293. We hold that individuals are journalists when engaged in investigative reporting, gathering news, and have the intent at the beginning of the news-gathering process to disseminate this information to the public. Madden does not pass this test.

Madden's activities in this case cannot be considered "reporting," let alone "investigative reporting." By his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden proclaims himself to be "Pro Wrestling's only real journalist," hyperbolic self-proclamation will not suffice as proof that an individual is a journalist. Moreover, the record reveals that all of Madden's information was given to him directly by WCW executives. Madden's deposition testimony acknowledges that WCW employees were his sole source of information for his commentaries. He uncovered no story on his own nor did he independently investigate any of the information given to him by WCW executives. Madden also fails the test in two other critical aspects: first, he was not gathering or investigating "news," and second, he had no intention at the start of his information gathering process to disseminate the information he acquired. Madden's work amounts to little more than creative fiction about admittedly fictional wrestling characters who have dramatic and ferocious-sounding pseudonyms like "Razor Ramon" and "Diesel." As a creative fiction author, Madden's primary goal is to provide advertisement and entertainment -- not to gather news or disseminate information. It is clear from the record that Mr. Madden was not investigating "news," even were we to apply a generous definition of the word. Madden admits in his deposition that his work for the WCW amounts to a mix of entertainment with reporting. He states that "with the WCW 900 number, I say things tongue [in] cheek. I say things for satire value, I say things to be funny, and sometimes I will take something like that and use it for humor value." Furthermore, the record indicates that WCW executives told Madden to "be a little crazy, say off the wall stuff, entertain, use a lot of humor, sort of work -- sort of be like the bad guy in the literal sense, not in terms of what I say is always going to be false, but in terms of what I say is going to get people excited."

Even if Madden's efforts could be considered as "newsgathering," his claim of privilege would still fail because, as an author of entertaining fiction, he lacked the intent at the beginning of the research process to disseminate information to the public. He, like other creators of fictional works, intends at the beginning of the process to create a piece of art or entertainment. Fiction or entertainment writers are permitted to view facts selectively, change the emphasis or chronology of events or even fill in factual gaps with fictitious events -- license a journalist does not have. Because Madden is not a journalist, it follows that he cannot conceal his information within the shadow of the journalist's privilege.

[p131]

IV.
To summarize, we hold that individuals claiming the protections of the journalist's privilege must demonstrate the concurrence of three elements: that they: 1) are engaged in investigative reporting; 2) are gathering news; and 3) possess the intent at the inception of the news-gathering process to disseminate this news to the public. Madden, having failed to sustain his burden, cannot protect his sources or his information by invoking the journalist's privilege. We will reverse the order and remand the cause to the district court.

title: In re Madden/Opinion of the Court


text:
Page:Book of the Riviera.djvu/325

Rh The higher ranges constitute the high Alps of Savoy and Dauphiné. The presence of this second and higher mountain range greatly increases the protection afforded to the coast-line by the lower one, and partly explains its immunity from the winter cold of continental Europe.

"Thus the Mentone amphitheatre, being only open to the south, south-east, and south-west, the Mistral, as a north-west wind, is not at all felt, and but slightly as a deflected south-west wind. All the northerly winds pass over the higher mountains and fall into the sea at some distance—several miles from the shore. When they reign there is a calm, not only in the bay at Mentone, but for some distance out at sea; whilst at a few miles from the shore it may be crested and furious."

But this protected and warm nook can be enjoyed only during the months in the depth of winter. When the sun begins to gather warmth, the heat becomes oppressive, the lungs gasp for air, and one feels desirous to be invested with sufficient faith to be able to move the mountains some miles back. There are two Mentones, the very dashing, frivolous, up-to-date modern town, with expensive tastes; bound for life to the elderly Mentone, grave, a little dilapidated, and intent only on business. But young and gay Mentone is stealing an arm round the old partner and laying hold of the even more sheltered and balmy bay beyond, now dotted with villas, and punctuated with hotels.

Mentone is pre-eminently the district of lemons and oranges, grown here for the fruit, and not, as at Grasse, for the flower. Lemons at Mentone are more numerous than oranges. They are not so beautiful, as the fruit has not the golden hue of the orange—it is green or pale sulphur yellow. The fruit of the orange tree will bear

title: Page:Book of the Riviera.djvu/325


text: Talk:In re Madden

title: Talk:In re Madden


text: Talk:Geary v. Visitation of Blessed Virgin Mary School


text:
Author:Henry Harvey Littlejohn

Works

 * (in part)

title: Author:Henry Harvey Littlejohn


text:
Page:Book of the Riviera.djvu/326

258 7° Fahr. below freezing point without being seriously affected, but the lemon tree is much more sensitive, and is killed by 8°; it may also perish by over-much moisture in the atmosphere. When a sharp frost sets in, the owners of a plantation of oranges or lemons are in dire alarm, and light fires in the groves, strewing green leaves and grass over the flames to produce smoke, which to a considerable extent prevents radiation, and the temperature falling too low.

The lemon tree flowers throughout the year, never resting, flower and fruit being on the tree at the same time. On no other part of the coast do these trees grow as freely as they do at Mentone and Bordighera. But there are no ancient lemon trees, as about once in thirty-five years a bitter winter sets in, and the poor trees perish.

The orange tree flowers once only in the year, and bears but a single crop. The fruit ripens in autumn and winter. We, in England, never have the orange in its perfection, as it is picked when green or turning golden and ripens in the cases in which it is packed. But for the orange to be in perfection, luscious and sweet, it should be left on the tree till the end of April, or even into May. It is a beautiful sight, during the winter, to see the orange groves laden with their glorious fruit. The most delicious oranges are those with thin skins, the Mandarin or Tangerine, which ripen earlier than do the Portuguese thick-skinned species. The history of Mentone is not of great interest, and it may be dismissed in a few words. Mentone and rock-perched Roquebrune belonged to the Prince of Monaco. The Grimaldi, John II., having quarrelled with Genoa, appealed for help to the Duke of Savoy, and to buy this

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text:
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 Rh help, in 1448 ceded these two places to him for an annual rent of 200 gold florins. However, the Grimaldi got this territory back again, but lost it in 1848, when Mentone and Roquebrune revolted against the fiscal burdens imposed on them by the Prince, and declared themselves independent republics. The President of the Republic of Mentone was Charles Trenca, who died in 1853. Finally, in 1860, both places were united to France, and the claims of the Prince of Monaco were bought off for the sum of four million francs.

There is little of architectural interest in Mentone. The church, built in 1619, and added to in 1675, is in the tasteless style of the period, but tower and spire are effective from a distance. In the church is preserved a processional cross, the staff of which is formed out of a Turkish lance taken by Prince Honoré I. of Monaco, in the battle of Lepanto, 1571. But if Mentone be somewhat deficient in picturesque features, the same cannot be said of Roquebrune, which for so many centuries shared its fortunes. It is dominated by the castle of the Lascaris. At Roquebrune, every year, on the first Sunday in August, the Mystery of the Passion is represented in a procession that illustrates the various scenes of the portentous tragedy. It starts from the chapel of N.D. de la Pansa, on the east side of the little town, a chapel decorated with frescoes of the fifteenth century. The narrow streets, passing under vaults, the quaintness of the houses, above all the superb panorama commanded by Roquebrune, make it a place meriting a visit. Still more quaint and picturesque is Castellar, forming a quadrilateral fortress, planted on a plateau commanding two valleys. It is composed of three long parallel

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text:
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260 streets. The exterior of the village or town is the wall that encloses the place, and the houses thus form the wall, and look outward only through eyelet holes. Turrets flank the angles. The chapel of S. Sebastian is romanesque. Here also the Lascaris had a palace. Castellar stands 1,200 feet above the sea. We can hardly realise till how late a period the pirates of the Mediterranean were a scourge to this coast, and forced the natives to build every village and town in a place not easily accessible, and form of it a fortress.

For many centuries first the Saracens, then the Turks and Moors of Tunis and Algiers, ravaged this coast. Not so much for gold and silver—for of this the poor fishermen, shepherds, and tillers of the soil had none, but to capture slaves. The women were handsome and the men able-bodied.

"There are still men living at Mentone," says Dr. Bennet, "who in the early part of this century (i.e. 19th) were seized on the coast by Moors, and subsequently lived for years as slaves at Algiers and Tunis." Indeed, piracy reigned supreme on the Mediterranean until the year 1816, when Lord Exmouth bombarded Algiers; but it was not finally stamped out till the conquest of Algiers by the French in 1830. When Lord Exmouth bombarded Algiers, there were thousands of Christian slaves, mostly captured on the Riviera, serving in the Algerine galleys. It was against the sudden descent of these pirates that the watch towers were erected along the coast, which may be seen at intervals as far as Genoa. At Castellar, on the Place de la Mairie, is given on January 2Oth, every year, an open-air ball which winds up the series of festivities, religious and secular, accorded in honour of the patronal saint, S. Sebastian.

title: Page:Book of the Riviera.djvu/328


text: Dictionary of National Biography, 1885-1900/Guthrie, William (1708-1770)


text: Dictionary of National Biography, 1885-1900/Guthrum


text: Appletons' Cyclopædia of American Biography/Steenstra, Peter Henry


text: Dictionary of National Biography, 1885-1900/Guthry, Henry


text: Dictionary of National Biography, 1885-1900/Guto y Glyn


text:
Page:Book of the Riviera.djvu/329

Rh Mentone was "invented" by Dr. J. Henry Bennet, whose delightful book on Winter and Spring on the Shores of the Mediterranean, 1861, has gone through several editions, and is still the best guide to such as are in quest of a winter resort. He settled at Mentone in 1859, and speedily appreciated its climatic advantages. These advantages are inestimable for the worst winter months. But when the sun gathers strength, it is advisable for the traveller to break his return journey to the cold and fogs of England by a cool bath in S. Raphael "ventosa."

Sir Thomas Hanbury has also done much for the place. His gardens are well worth seeing. An electric tram will take a visitor along the bay to a fountain erected by Sir Thomas Hanbury, near the frontier of Italy. That frontier runs down the torrent of S. Louis, where may be seen, on a fine day, sketchers and painters engaged in transferring to their books or canvases the impression produced by this ravine, with arches one above the other, for the railway and for the Corniche Road, whilst below are women washing garments in the little stream. The magnificent cliffs rise here in sheer precipices, and are composed of nummulitic limestone. Formerly the headland stretched to the sea, leaving only a strip between the rocks and the waves, along which strip ran the Via Aurelia. The rock was perforated with caves, nine in number. But it has been cut back for building stone, and the grottoes have been much reduced in depth. The caves served as a habitation for man from a remote period, and not solely as a habitation, but also as a sepulchre. The Barma Grande was filled to a depth of thirty feet of deposit, that deposit consisting of fallen stones, bones of beasts, flint weapons

title: Page:Book of the Riviera.djvu/329


text: Appletons' Cyclopædia of American Biography/Steendam, Jacob


text: Appletons' Cyclopædia of American Biography/Steiger, Ernst


text:
Page:Book of the Riviera.djvu/330

262 and tools, remains of hearths and charcoal, and human skeletons. It has been dug into by many and various explorers, and not always with judgment, and with precise record of the depths at which various discoveries have been made. The present proprietor used the soil for the purpose of making a garden, and it was only when he came upon human remains that it occurred to him that he could turn the cavern into a show place, and get more out of it in that way than he could by growing cabbages in the soil removed from it. In these caves a considerable number of skeletons have been found ; in the first, the Grotte des Enfants, two bodies were discovered of children of six and four years old, lying at a depth of eight feet, side by side. They had evidently been clothed in little loin-cloths embroidered with pierced shells. In the fourth cave, the Grotte du Cavillon, was found the skeleton of an adult twenty feet below the surface, lying on his left side, the cheek resting on the left hand, and the head and body had been dusted over with red ochre, which had stained the bones. The head had been covered with a sort of cap made of, or adorned with, perforated shells and dogs' teeth, and similar ornaments must have been stitched on to garters about his legs. The sixth cave, Bausso da Torre, furnished two bodies of adults and one of a child, and with these were flint weapons, bracelets, and necklets of shells. In 1884 M. Louis Julien found a human skeleton lying at a depth of twenty-five feet, the head bedded in red ochre, and near it numerous flakes of flint. Since

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text:
Page:Book of the Riviera.djvu/331

Rh then others have been found, and the present proprietor has preserved them in situ, under glass, in the cave, at the precise levels at which discovered. In 1892, three were found, all lying on their left sides. One of these had pertained to a young woman. All three had been buried along with their personal ornaments, and all with the ferruginous powder over them.

Finally, in 1894, another human skeleton was unearthed at a higher level; and soon after again another. All these interments belong to man at a period before the use of metals was known, and when the only tools employed were of bone and flint The purpose of covering them with red oxide was to give to the bodies a fictitious appearance of life. The men were of a great size, tall and well built, taller indeed than are the natives of the Riviera at the present day; and the heads are well developed—the skulls contained plenty of brains, and there is nothing simian about the faces. A little prehistoric museum has been built on a platform near the caves, where most of the relics found in them are preserved ; but some are in the museum at Mentone itself.

title: Page:Book of the Riviera.djvu/331


text: Dictionary of National Biography, 1885-1900/Gutteridge, William (1798-1872)


text: Appletons' Cyclopædia of American Biography/Stein, Conrad


text: Author:William Draper Lewis

title: Author:William Draper Lewis


text:
Page:Book of the Riviera.djvu/399

Rh, and hereditary wealth, who were excluded from all share in the government. All have gone under, not in the wars for the Milanese, but in the Revolution; and these ruined castles and palaces are their tombstones. Who can doubt that it is well that so it should have been. In the words of Macaulay:—

"The volcano has spent its rage. The wide waste produced by its outbreak is forgotten. The landmarks which were swept away have been replaced. The ruined edifices have been repaired. The lava has covered with a rich incrustation the fields which it once devastated, and, after having turned a beautiful and fruitful garden into a desert, has again turned the desert into a still more beautiful and fruitful garden. The marks of its ravages are still all around us. The ashes are beneath our feet. In some directions the deluge of fire still continues to spread. Yet experience surely entitles us to believe that this explosion will fertilise the soil which it has devastated. Already, in those parts which have suffered most severely, rich cultivation and secure dwellings have begun to appear amidst the waste."

The palaces of the Lascaris, the Grimaldis, the Durazzos, the Delia Roveres, the Dorias, are in ruins, but in their places rise hotels de Paris, de l'Univers, the Metropole; and the bands of bravos entertained by the nobles are replaced by Italian and Swiss waiters.

"The more we read the history of past ages, the more we observe the signs of our own times, the more do we feel our hearts filled and swelled up by a good hope for the future destinies of the human race."

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The New International Encyclopædia/Koriaks

KO′RIAKS (reindeer people). One of the northeastern members of the Siberian section of the Mongolian race. They inhabit the country (coast and interior) between the Tchuktchis and

the Kamtchadales, and are in part fishermen and in part wandering or semi-settled herdsmen, whose possession of the reindeer has raised them above the condition of some of the neighboring tribes, both physically and mentally. The Koriaks number some 5000, and are divided into several tribes. They are said to bear a striking resemblance to some of the natives of Arctic North America. Some ethnologists include them in the ‘Paleasiatic’ group, which consists of races once of more southern range, but now driven to the northeast by advancing peoples from the Asiatic interior. The languages of the Koriaks, Tehuktchis, and Kamtchadales seem to be related. Consult: Winkler, Uralaltaische Völker und Sprachen (Berlin, 1884); Kennan, Tent Life in Siberia (New York, 1870-79).


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314 Duchesse de Chartres a few years before the outbreak of the Revolution, may be judged by some further instances. When the party left Antibes for Nice, they went by sea, because of the badness of the road; and were obliged to be accompanied by a felucca with a whole regiment on board, to protect them against corsairs. At Ospidaletta

"we were forced to halt and spend the night, one of the most frightful places that hospitality ever provided. We slept three in one room, and we made up a sort of bed for Mme. the Duchess of Chartres with mule cloths-and leaves. In one room were two great heaps of corn, and the master of the house assured us that we should sleep well if we buried ourselves in the grain. The gentlemen gave us their cloaks to cover the corn. One had to go to bed in the most extraordinary attitude in fact, almost upright. We passed the night in continual interruptions, caused by slidings down and by the upset of masses of corn. With joy we saw the day dawn; and as we had slept in our clothes, our toilettes did not occupy us long."

The whole of the Riviera from Nice to Genoa—indeed, the whole of Provence—is studded with ruined castles and palaces: of these, only the most mean, that house of cards, Monaco, remains intact. They tell us of a time when the great families lived in lordly state, under the absolutism of the French crown or the despotism of the Genoese Republic. In Genoa itself the families inscribed on the Golden Book, and alone having the right to sit in council and direct the affairs of state, and mismanage and oppress the Ligurian coast and Corsica, did not exceed one hundred and seventy. But in Liguria there were at least four hundred and fifty noble families decorated with titles, possessing vast estates,

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Rh Rovere family, Giuliano, nephew of Pope Sixtus IV., as a boy was wont to carry the farm produce from his father's farm to Savona, either by boat or mule, however rough the season might be, and, if he did not sell in the market, was unmercifully thrashed by his father on his return. But when his uncle became Pope, all this was altered. He entered the ecclesiastical profession, became a cardinal, and finally Pope, as already told. The palace was built out of the plunder of the Church. Mme. de Genlis visited the Delia Rovere palace at Albizzola. She says:—

"The gardens are vast, but tasteless. I remarked there one thing very singular—there were none of the charming flowers one sees growing naturally in the fields; only oranges were there, and box; this latter cultivated with the utmost care, in the most superb vases that decorate the terraces. This villainous box, planted in splendid vases, occupies its position solely because it is more rare and costly a plant than myrtles, jessamines, and oleanders."

She has given us an account of her journey to Albenga, over rocks, the mountain road being so steep and so dangerous that descents had to be made on foot. "I may almost say that we arrived barefooted, for the stones during three days had so worn and pierced our shoes, that the soles were nearly gone." And beyond Savona she says

"the journey is most dangerous, but at the same time most interesting. The horror of the precipices made me walk three-quarters of the way, over stones and cutting rocks. I arrived at Genoa with my feet swollen and full of blisters, but otherwise in rude health."

How the journey from Marseilles to Genoa has changed since Mme. de Genlis took that road with the

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Rh population in the immediate vicinity which continually, or from time to time, engaged in fishing operations was very considerable. A party of twelve soldiers, on one occasion, travelling across the country from Sydney to Botany, for the purpose, if possible, of seizing certain blacks who had committed some depredations among the colonists, fell in with a group of aboriginals amounting to 212 in all. On the approach of the military the women and children took shelter in a cave, while the men came boldly forward, armed with their spears and clubs, and by voice and gesture warned the strangers off. On the officer in command, however, making friendly signs, and giving them to understand that he did not entertain hostile intentions, the aboriginals laid down their arms and a peaceable interview took place, when it was discovered that the offenders did not form a part of this tribe. Although the Europeans were, on this occasion, completely in the power of the blacks, the latter did not evince the slightest disposition to act with treachery; but they manifested some impatience during the stay of the former, and seemed pleased when they were departing. From the two foregoing facts and other similar data it has been pretty accurately ascertained that the aboriginal population of the country immediately adjoining the coast, extending from Port Jackson to Broken Bay, amounted, at the founding of the colony, to 1,500 persons—a large population for so limited an extent of country, and capable of offering very effective resistance to the progress of the


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312 crazed, and locked him up. In the night the Virgin released him. After some further trouble, and some further miracles, the story was believed and the sanctuary was erected.

Beside the image is a little marble figure representing the countryman who started the cult. Beneath the feet of the Virgin issues a spring of water that is supposed to cure all diseases, but is so intensely cold as to be more likely to do harm than good. At Varazzi, near Savona, was born the famous Jacques de Voragine, about the year 1230. Nothing is known of the social position of his parents. In one of his writings he speaks of the eclipse of 1239, and says that he was still a child when it occurred. He became a dominican in 1244, and in 1292 was elected to the bishopric of Genoa. He laboured hard to effect a truce between the Ghibelline and Guelf factions, which for two whole months converted the streets of the capital of Liguria into a field of battle. He succeeded. But the peace was soon broken again. The story goes of him that, being present in S. Peter's along with Boniface VI II. on Ash Wednesday, during the ceremonies, the pontiff, supposing him to belong to the imperial party, dashed the ashes in his face, shouting, " Remember, thou Ghibelline, that thou and thy Ghibellines will be reduced to dust." Jacques is chiefly known through his Legenda Aurea, a collection of the most outrageous, but also the most romantic fables of the saints; a work that had an enormous sale in the Middle Ages, and was copied again and again, and read everywhere, and, incredible as it may seem, was believed as gospel. He died 1298. At Albizzola Superiore is the palace of the Delia

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102 infant colony, if so disposed and if influenced by common motives.

Few, if any, of the citizens of Sydney are unacquainted with those localities, situate between Sydney and the Heads, known as Manly Beach and Rushcutters' Bay. The former of these localities has been beyond recollection the favourite resort of amateur fishermen and the more adventurous class of pleasure-seeking excursionists; the other is the long-established rendezvous of "cits" and their families, seeking every Sabbath a little relaxation amid the pleasures of rustic scenery from the monotonous recurrence of their everyday avocations; yet comparatively few of those who from time to time derive pleasure from a visit to those scenes are aware of the origin of the names by which they are designated—if, indeed, they have ever given the subject so much as a passing thought. Well, now that we have, as we fondly imagine, excited their curiosity on this point, we purpose to satisfy the inquiries which must naturally follow. And, first, to describe one of these scenes: Manly Cove, or Manly Beach as it is sometimes called, is one of the first of these indentations of the harbour to be met with, on the north side, after entering the Heads; it is sheltered, as most of these beautiful little bays are, by a gently ascending enclosure, covered with a luxuriant wood—the surrounding eminence separated from the waters of the bay by a sloping sandy beach, extending into the harbour for several paces at a moderate depth. Here


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The New International Encyclopædia/Korin

KO′RIN (African name). The common gazelle of North Africa.


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Rh it was that, a day or two after the arrival of the fleet in Botany Bay, the boats despatched by the Commodore for the purpose of exploring Port Jackson; previous to transferring the fleet thence, were surrounded by a number of aborigines, who waded into the water, and, after examining the boats and scrutinizing everything they saw, received whatever presents were offered them, and returned highly pleased. The frank, fearless, and manly bearing of the New Hollanders on this occasion suggested to the good taste of the first Governor the name which the spot bears to the present day. It is to be regretted that the other locality should not have received its designation from circumstances similarly auspicious and similarly pleasing to all parties. But as in the best plays of the great dramatist the serious succeeds to the comic, and tears give place to laughter, so in the two matters under consideration a tragic occurrence succeeds to a serio-comic scene, and as the one gave a name to Manly Beach, so the other conferred on the locality where the occurrence took place the appellation which it retains to the present day. No sooner had the site of the new city been chosen, at the head of Sydney Cove, than the workmen of the colony were set about constructing cottages and barracks for the reception of the several classes of people of which the infant community was composed. Wood and stone were to be found in abundance in the immediate vicinity, so that little difficulty stood in the way of the performance of the


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104 chief part of this work; but when the primitive buildings came to be roofed a difficulty presented itself in the want of material for covering. Slates were out of the question; the art of shingle-making was not as yet known or practised; thatch only remained, but whence was even this homely material to come? Some fertile genius, whose faculties brightened in emergency, suggested that rushes would answer the purpose, if they could be found. Accordingly parties were despatched to explore the marshy spots in the neighbourhood of the town, where such would be likely to grow, and at the head of a bay about two miles east of Sydney they were found in abundance, thickly fringing a stream, whose source was a small cascade about half a mile from the beach, and which wound its way thence through a sheltered valley to the waters of the bay. To this spot accordingly were despatched every day two men for the purpose of cutting and drying the rushes, which were conveyed to the town when so prepared by other parties. One evening, those two men failing to return as was their wont to their companions at the Cove, a party was next morning sent to ascertain the cause of their absence, and on proceeding to the spot the lifeless bodies of the unfortunate rushcutters were found, at some distance apart, pierced with several spear wounds and battered with many blows. Hence Rushcutters' Bay.


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No sooner had the ceremony of inaugurating the settlement been gone through, at the head of Sydney Cove, on the 26th January, 1788, than a tribe of aborigines made their appearance among the surrounding wood, peeping cautiously through the trees at the new occupants of the beach. They had been attracted to the spot by the firing of the military, three volleys from whose muskets announced the planting of the British ensign among these solitudes, and they came, as might be expected, completely armed and prepared to act on the defensive. Governor Phillip, wishing to cultivate in every possible manner the goodwill of the aborigines, leaving the encampment, approached unarmed the foremost of the tribe, for the purpose of allaying their apprehensions and obtaining an interview. As soon as the object of the Commandant became understood, one of the savages, who appeared to be the chief, laying down his spear and other arms, approached half-way to the interview, and the Governor having made him understand by signs that he was desirous that his people and the blacks should live as friends, invited him into the encampment for the purpose of inspecting the objects


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104 of wonder which the Europeans were enabled to show. To this the chief consented, and accompanied the Governor alone for that purpose. On approaching close to the beach, however, where the tents were erected, and where he beheld all the soldiers of the expedition drawn up under arms, his confidence partially forsook him, and suddenly standing, he gazed for a few moments at the scene before him, and then glancing behind in the direction of his friends and countrymen, and seeing that he had now approached too far to retreat, he commenced a most animated harangue in his native tongue, in which, judging by his looks and gestures, he gave the Governor to understand that if any treachery were practised towards him his people would revenge him in the most signal manner on the entire colony. Having thus entered his protest against any unfair dealing, and having cautioned those in whose power he found himself placed against the consequences of any act of theirs against his life or his liberty, he advanced with his former boldness within the lines of the camp, the Governor having again assured him as best he could that no treachery was intended. He then proceeded to inspect the several strange objects which presented themselves — the muskets and accoutrements of the soldiery, the implements of the workmen, the tents, the cooking apparatus, and concluded his scrutiny by gazing anxiously for some moments into a pot in which some meat was being boiled for the mess of the people. He was finally


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Rh presented with some suitable gifts in the shape of a hatchet and some other articles of less value, with which he departed, highly pleased with his interview.

The name of Binnelong has been already mentioned more than once in the course of these sketches, in connection with the early colonization of the country. His name is now introduced in conjunction with that of another aboriginal of Port Jackson, a black named Cole-be, who, although a chief of one of the tribes, while Binnelong was only a common man, did not occupy so prominent a position in his day, and has not been rendered so celebrated as the latter. The names of these two men, however, stand most conspicuous among the aborigines who figured in those days, and it will, perhaps, therefore be interesting to know something of their history and their fate. When the first colonists arrived it was at once deemed advisable, for several reasons, to cultivate the fellowship and goodwill of the aboriginal inhabitants. The first step towards this end would be, of course, to become acquainted with their language, and impart to them a knowledge of the language of the colonists. Owing to the timidity of the blacks, however, as well as their impatience of restraint, and their indisposition to remain among the colonists for any lengthened period, it was found impossible to carry out the plan proposed by the means at first adopted. These means consisted in enticing the blacks to the settlement by presents, and afterwards seeking to induce them to remain, by kind


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The New International Encyclopædia/Kořistka, Karl von

KOŘISTKA,, (1825— ). An Austrian geographer and technologist. He was born at Brüsau, in Moravia, studied at Vienna, and at an early age became a student in the school of mining and forestry at Schemnitz. In 1851 he was elevated professor of mathematics and geodesy in the German polytechnical school at Prague. He exerted a wide influence in the development of the technical and professional schools of Austria. He was also much occupied in orographical and hypsometrical studies and explored several of the mountainous regions of Europe, where he obtained a large number of levels and heights. From 1867 to 1869 he was a representative in the Diet of Bohemia and in the Vienna Reichsrat. Besides numerous memoirs, mostly written in German and in French, he wrote for many reviews and journals. Among his principal works may be mentioned: Studien über die Methoden und die Benutzung hypsometrischer Arbeiten (Gotha, 1858); Die Markgrafschaft Mähren und das Herzogtum Schlesien in ihren geographischen Verhältnissen (Vienna, 1860); Hypsometrie von Mähren und Schlesien (Brünn, 1863); Der höhere polytechnische Unterricht in Deutschland, der Schweiz, in Frankreich, Belgien und England (Gotha, 1863); Die Hohe Tatra (ib., 1864); Das Mittel- und Sandsteingebirge in Böhmen (Prague, 1869); Das Iser- und Riesengebirge (ib., 1877); Verzeichniss der trigonometrischen Höhen von Böhmen (ib., 1884).


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108 and conciliatory treatment. Sometimes an individual would be induced to stay among his new companions for a day or two, but just as his teachers and guardians would deem that they had succeeded in domesticating their unsophisticated ward, Nature would resume her sway over her élève and he would fly to her arms amid the depths of his native woods. Repeated experiments were thus made, and terminated in the manner just described, until the authorities at length perceived that some other method must be resorted to besides allurement for the purpose of subjecting one or more of the natives of the country to the yoke of European customs, and imparting to them a knowledge of their intentions and wishes. Accordingly the only course now left, that of a gentle compulsion, was determined upon, and a party was thereupon despatched down the harbour in a boat, with instructions to seize the first intelligent-looking aboriginal they might come across. In pursuance of their orders this party proceeded to one of those bays to which they knew the blacks were accustomed to resort for fishing and other purposes, and there they met with a small party of those for whom they sought, and in a short time succeeded in bringing them to a parley. A few of the crew of the boat, having been previously instructed by the officer in charge how to proceed, now stepped ashore, and, watching their opportunity, seized one of the best-looking of the blacks at a moment when he was separated from his companions, and


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Rh carrying him through the water in their arms, threw him into the boat, where he was held till the party had rowed beyond the reach of the spears or other missiles of the captive's companions on shore. He was then tied in the bottom of the boat, and thus conveyed to the Governor's residence, all the time crying piteously, and calling in vain for assistance to his brethren on the beach. These latter had fled panic- stricken into the bush on first observing the aggressive intentions of the party of whites, but returned on seeing that the latter were content with the possession of one of their number, and continued to follow the boat along the shore, and to respond to the calls of the captive so long as they were audible and while the treacherous craft remained in sight. The aboriginal who had thus been so unceremoniously and suddenly carried from the midst of his companions and countrymen, and hurried a captive into the society of strange and unsympathizing men, was the afterwards redoubtable Binnelong. On being carried before the Governor, the latter ordered, as one of the writers of the day expresses it, that he should be "ornamented with an iron shackle, placed round one leg, to prevent escape." A little further on, however, the reader is given to understand that to the shackle was attached a rope, at one end of which was an individual holding it in his hand, whose duty it was to accompany the future interpreter throughout the limited peregrinations permitted to him, and thus effectually guard against his flight. It now


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110 suggested itself to the mind of the Governor that it was not desirable that the captive should be thus entirely sequestered from the companionship of his old and more congenial associates. It was seen, on the contrary, that it would prove consoling to the mind of the latter, as well as materially facilitate the end in view, if another black could be procured for training at the settlement. Accordingly it was resolved to capture another, and this resolve it was which led to the seizure of Cole-be. The manner in which this feat was accomplished differs somewhat from the mode of Binnelong's seizure. A party were ordered to hover about the outskirts of the town at all hours of the day and night, in readiness to seize the first black who made his appearance — an occurrence for which they were not likely to wait long, as several blacks were accustomed to visit the stockades at all hours by stealth, either actuated by curiosity or bent on an errand of plunder. The first who presented himself was the luckless Cole-be. He was the chief of one of the tribes, and the friend of Binnelong, and had probably been loitering about the town for the purpose of having a stolen interview with the latter, with a view to effecting his deliverance. In this, however, if it were his design, he not only signally failed, but literally ran his own head into the snare, for the kidnapping party, suddenly springing up round him, threw a halter round his neck, and in this manner conveyed him, overwhelmed with terror, before the Governor. He was "ornamented with an


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Rh iron shackle" and placed along with Binnelong. The two friends being now placed in communication, the first thing they turned their attention to was the concerting of measures for their escape. This they could not hope to effect either by force or stealth, and they accordingly resolved to employ stratagem. Pretending, therefore, after a few days, to become more reconciled to their loss of liberty, they succeeded so far as in some degree to lessen the vigilance of their keepers; and one evening, while they and their guards went to their evening meal. Cole-be, on some pretence, obtained permission to sit outside the hut, the man who held the cord attached to his leg sitting inside with Binnelong and his companions. The latter, as previously arranged, succeeded in engaging the attention of the inmates of the hut — among whom was Cole-be's keeper — by chaunting aboriginal songs and going through divers entertaining antics, while Cole-be slipped the cord off the shackle, and, clearing at one bound the fence which interposed a final barrier between him and liberty, was in a moment beyond the reach of pursuit After the escape of his companion Binnelong appeared to be more contented than before, and dissembled so well the irksomeness with which he submitted to his condition that in a short time his guard was removed and he was permitted to roam at liberty over the premises in which he lived. One day, however, he was missed by the people about the Governor's residence, where he had latterly been living; and a search


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112 being made it was found that he had decamped, leaving behind every article of an excellent suit of clothing with which he had been presented.

Thus were these last efforts of the Governor to domesticate an aboriginal most vexatiously frustrated, after so large an amount of labour and perseverance had been expended in the task. What force and application, however, could not effect time brought about without trouble or difficulty. Binnelong and Cole-be were afterwards frequently seen by parties of the whites in their expeditions over the harbour or around the country, and although the one had so flagrantly deceived them, and although the other had fled their companionship with such determination on a former occasion, they now appeared nowise shy or fearful of their whilom captors, conversing and exchanging civilities with them whenever they came into the neighbourhood of their encampments or haunts. On one of these occasions Binnelong sent his compliments to the Governor, who had uniformly treated him with kindness and consideration, and expressed a desire to see him. He added that he was unwilling to proceed to the settlement, but said that he would meet the Governor at an appointed place, on a certain day, if the latter chose to come. The information being conveyed to Governor Phillip, he determined to comply with Binnelong's wish, believing that by so doing he would be advancing the interests of the community entrusted to his charge, and accordingly, on the day fixed, set out


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Rh for the appointed place. And now, reader, you behold a scene which perhaps you could hardly have deemed possible — the founder and Governor of the colony, the representative of King George the Third and a commodore in the Royal Navy, proceeding in the most ceremonious manner, surrounded by several of his chief officers, to hold a parley with a rude aboriginal of the coast of New Holland. The spot fixed for the interview was one of those bays of the harbour lying towards the Heads, the usual places of assemblage for the aborigines in those days. Here the Governor and his party were met on landing by Binnelong, who, true to his promise, had proceeded thither at the appointed hour, accompanied by a number of his companions and friends. The meeting was cordial and frank on both sides, the Europeans evincing no inclination to allude to Binnelong's former breach of confidence, while the latter, on his part, met the advances of the former without the slightest appearance of distrust or dread of treachery. As a considerable portion of the day had been spent in proceeding to the place of meeting and in the subsequent interview, the party resolved upon dining on the spot, and bringing forth a stock of provisions which they had carried with them, they partook of a meal seated on the green sward, under the shade of the surrounding gum trees, Binnelong and his companions sharing the Governor's hospitality. At the termination of the rustic feast, the Governor presented the aboriginals with sundry gifts, and having obtained