text:
Translation:Shulchan Aruch/Orach Chaim/673

 Oils and Wicks That Are Fit for Use on Hanukkah

שמנים ופתילות הכשרות לחנוכה

Paragraph 1 — All oils and wicks are fit for use for the Hanukkah light, even if the oils are not drawn after the wick, and the illumination is not held well by those wicks.
 * Rema: However, olive oil is a choice mitzvah, (Mordechai, Kol Bo and Mahari"l) and if olive oil is not available it is a mitzvah with oils whose illumination is pure and clean, and we have the custom in these countries to kindle with wax candles since their illumination is clear like oil.

And even on the night of the Sabbath that is in the middle of the days Hanukkah it is permissible to kindle the Hanukkah light with the oils and wicks with which it is prohibited to kindle the Sabbath candles.
 * Rema: [this is] if one only puts in the light enough [oil] for the measure of its mitzvah. (Responsa of Shlomo ben Aderet Section 170)

...since it is prohibited to utilize the Hanukkah light whether on the Sabbath or on a weekday, even to check [the authenticity of] coins or to count them by its illumination; even a holy use is prohibited, such as studying [Torah] by its illumination. And there is [an opinion] that permits a holy use. We have the custom to kindle an additional light, in order that if one uses its illumination, it would be the additional light, which was kindled last, and it should be placed at a small distance from the other obligatory lights.
 * Rema: In these countries, we do not have the custom to add, one only places by them the auxiliary light with which he kindles the lights, and this is more preferable. And it should be made longer than the other lights, so that if he comes to use [the illumination], he will use that light. (Mordechai) If a Hanukkah light, which is prohibited for pleasure, becomes mixed with other lights, even one in a thousand, it is not nullified, for it is a thing that can be counted. (Terumat Hadeshen Section 103) Rather, one should kindle from the mixture enough [lights] that there is definitely a permissible light lit with the prohibited light, and then it would be permitted to use [their illumination]. ([Rem"a's] own opinion)

סעיף א — כל השמנים והפתילות כשרים לנר חנוכה ואע"פ שאין השמנים נמשכים אחר הפתילה ואין האור נתלה יפה באותם הפתילות.
 * הגה: ומיהו שמן זית מצוה מן המובחר (מרדכי וכל בו ומהרי"ל) ואם אין שמן זית מצוי מצוה בשמנים שאורן זך ונקי ונוהגין במדינות אלו להדליק בנרות של שעוה כי אורן צלול כמו שמן.

ואפילו בליל שבת שבתוך ימי חנוכה מותר להדליק בנר חנוכה השמנים והפתילות שאסור להדליק בהם נר שבת.
 * הגה: אם אינו נותן בנר רק כדי שיעור מצותו (תשובת הרשב"א סי' ק"ע).

לפי שאסור להשתמש בנר חנוכה בין בשבת בין בחול ואפילו לבדוק מעות או למנותן לאורה אסור אפילו תשמיש של קדושה כגון ללמוד לאורה אסור ויש מי שמתיר בתשמיש של קדושה ונוהגים להדליק נר נוסף כדי שאם ישתמש לאורה יהיה לאור הנוסף שהוא אותו שהודלק אחרון ויניחנו מרחוק קצת משאר נרות מצוה.
 * הגה: ובמדינות אלו אין נוהגים להוסיף רק מניח אצלן השמש שבו מדליק הנרות והוא עדיף טפי ויש לעשותו יותר ארוך משאר נרות שאם בא: להשתמש ישתמש לאותו נר (מרדכי) אם נתערב נר חנוכה האסור בהנאה בשאר נרות אפילו אחד באלף לא בטיל דהוי דבר של מנין (ת"ה סי' ק"ג) אלא ידליק מן התערובות כל כך שבודאי נר של היתר דולק עם נר של איסור ואז מותר להשתמש אצלן (ד"ע).

Paragraph 2 — The kindling accomplishes the commandment; therefore if one extinguished it before its [minimum] time had passed, he is not bound to [rekindle] it. Even if he extinguished it on the Eve of Sabbath before accepting the Sabbath, when it is still daytime, he is not bound to [rekindle] it. Similarly, if after he kindled it he went to adjust it and unintentionally extinguished it, he is not bound to [rekindle] it.
 * Rem"a: If he wants to be stringent on himself and go back and kindle it, he should not recite the benediction over it. (Responsa of Shlomo ben Aderet Section 539 and Nissim of Gerona)

סעיף ב — הדלקה עושה מצוה לפיכך אם כבתה קודם שעבר זמנה אינו זקוק לה ואפילו כבתה בערב שבת קודם קבלת שבת שעדיין הוא מבעוד יום אינו זקוק לה וכן אם לאחר שהדליקה בא לתקנה וכיבה אותה בשוגג אינו זקוק לה.
 * הגה: ואם רוצה להחמיר על עצמו ולחזור ולהדליקה אין לברך עליה. (רשב"א סימן תקל"ט ור"ן)

Paragraph 3 — A ceramic light that one kindled one night becomes "old" and we do not kindle it on another night; rather one takes new ones every night. And if he only has an old one, he should fire it each night with a flame. A metal light does not need to be new, and [lights] of glass or of glazed ceramic have the same law as metal.

סעיף ג — נר של חרס שהדליק בו לילה אחת נעשה ישן ואין מדליקין בו לילה אחרת אלא לוקח חדשים בכל לילה ואם אין לו אלא ישן מסיקו בכל לילה באור ונר של מתכת א"צ חדש ושל זכוכית או של חרס מכוסה דינו כמתכת.

Paragraph 4 — We are not concerned to replace the wicks until they are consumed.

סעיף ד — אין חוששין לפתילות להחליפם עד שתכלה.

 * }

שולחן ערוך אורח חיים תרעג


text:
Page:Transactions of the Linnean Society of London, Volume 10.djvu/329

( 283 ) X. A Description of several Species of Plants from New Holland.

By Edward Rudge, Esq. F.R.S. and L.S.

Read April 18, 1809, and January 16, 1810.

Monandria Monogynia.

. XII. Fig. 1.

foliis parum pubescentibus: spathis longissime cuspidatis, valde hispidis: paleis emarginatis.

Devauxia Billardieri. Brown Prod. v. 1. 252.

Planta tres ad quatuor pollices longa.

Radix fibrosa.

Scapi plures, erecti, teretes, basi foliis vaginati. Spathæ bivalves, ovatae, longissime cuspidatae, basi concavoe, pilis albidis rigidis hispidae, decern- ad duodecim-florae.

Calyx nullus.

Corolla nulla; Palea unilaterales, tot quot flores, ovato-oblongae, emarginatae.

Stamen. Filamenium filiforme, paled longius, basi pistilli insertum. Anthera cordata, versatilis.

Pistillum. Germcn superum, ovatum; Stylus tripartitus; Stigma acuta, gland ulosa.

Capsula trilocularis; loculis a basi inaequaliter distantibus, monospermis. Semina

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


text: Dictionary of National Biography, 1885-1900/Bowman, John Eddowes (1785-1841)


text: Dictionary of National Biography, 1885-1900/Bowman, John Eddowes (1819-1854)


text: Dictionary of National Biography, 1885-1900/Bowman, Walter


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


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


text: Dictionary of National Biography, 1885-1900/Bowyer, George (1740?-1800)


text: Dictionary of National Biography, 1885-1900/Bowyer, George (1811-1883)


text: Author:Charles Stuart Parker

title: Author:Charles Stuart Parker


text:
United States v. Kember (648 F.2d 1354)/Opinion of the Court

Appellants, subpoenaed by the prosecution to testify in a criminal trial currently in progress in the District Court and granted use immunity for that purpose, refused to testify and were held by the District Court to be in civil contempt. They appeal that judgment and challenge its validity on a number of grounds. For the reasons hereinafter appearing, we find none of their contentions to be availing, and we affirm.
 * PER CURIAM:

I
On August 15, 1978, an indictment was returned charging appellants (Hubbard, Heldt, Weigand, and Willardson) and seven other persons, including the defendants in the current criminal case (Kember and Budlong), with a number of federal and D.C.Code offenses. The latter consisted of ten counts of burglary, which were charged against both appellants and Kember and Budlong. On the same day warrants were issued for the arrest of Kember and Budlong, who were in England, and the United States promptly requested the United Kingdom to extradite them.

On October 26, 1979, appellants were convicted in a non-jury trial on stipulated evidence of one count of conspiring to obstruct justice (a federal offense). The presiding judge also enforced an asserted agreement under which the appellants, convicted of the one count, were to have all the other counts against them in the indictment dismissed if the conviction was not reversed on appeal; if, contrarily, the conviction was reversed, the prosecution could proceed on any of the remaining offenses charged in the indictment. On December 6, 1979, appellants were sentenced to prison terms and fined. Since December 21, 1979, they have been at liberty on bail pending appeal.

On March 13, 1980, the extradition proceedings against Kember and Budlong were at long last completed after traversing the entire English judicial hierarchy from Bow Street Magistrate to the House of Lords (with a further futile application to the Home Secretary and the European Commission of Human Rights), and they were returned to the United States and arraigned before a federal magistrate in Washington, D. C. The Government represented to the magistrate that, under the terms of the British extradition order, Kember and Budlong could be prosecuted only on the D.C.Code offenses joined in the indictment, i. e., the burglary counts. Their trial on these counts began in the District Court on October 27, 1980.

In anticipation of that trial, the Government subpoenaed the appellants to appear and to testify. A joint motion by appellants to quash the subpoenas was denied by the District Court on October 21, 1980 on the eve of trial. At the trial itself, appellants were called as the prosecution's first four witnesses. After stating their names, they declined to answer all other questions put to them, claiming their privilege against self-incrimination under the Fifth Amendment, as well as rights under the First, Fourth, and Sixth Amendments; they also urged that the court lacked jurisdiction to enforce the subpoenas. They were then granted immunity against use of their testimony under 18 U.S.C. ss 6001 et seq., and were directed by the court to respond to the questions, but they refused to do so. After a voir dire hearing outside the presence of the jury, in which appellants renewed their earlier objections, the court made its contempt adjudication, but released appellants on their personal recognizance pending appellate review of the court's action.

II
On appeal to this court, appellants have not pressed further any claim deriving from the First Amendment. They have, however, continued to urge that, since the District [p1357] Court was called upon to try Kember and Budlong only for the D.C.Code offenses of burglary, as distinct from the U.S.Code crimes charged in the indictment, it lacked jurisdiction to proceed against the defendants. If such jurisdiction is wanting, appellants say, then the subpoenas for their appearance as witnesses must be quashed.

It is further argued on appeal that compelling the testimony of appellants constitutes (1) a denial of the privilege against self-incrimination guaranteed them by the Fifth Amendment, and (2) a violation of their right to effective assistance of counsel under the Sixth Amendment. Related to their latter contention is an insistence that, as potential trial defendants under the other criminal charges in the continuing indictment, they are unlawfully being deposed in violation of 18 U.S.C. s 3503(d) and Rules 15 and 16 of the Federal Rules of Criminal Procedure. They also assert that the Fourth Amendment prohibits their interrogation because it would be based on illegally seized evidence. Further, they claim that the District Court failed to take the steps necessary to assure that they were not questioned by reference to information flowing from illegal electronic surveillance by the Government. In addition, they attack the validity of the immunity grant based upon assertions that (1) the guidelines in the United States Attorneys' Manual were not observed, (2) no showing of necessity for the testimony was made, (3) compelling Hubbard's testimony would contravene a disposition agreement entered with the Government, and (4) the immunity statute has been discriminatorily employed. Finally, appellants complain of the District Court's denial of their request for a hearing on the question whether the subpoenas were issued in the exercise of good faith by the prosecution. Part III of this opinion will address the subject of the District Court's jurisdiction; Part IV will deal with the Fifth and Sixth Amendment contentions, including the deposition argument; and Part V will speak to the Fourth Amendment and all of the remaining points.

III
Appellants assert that the District Court lacks jurisdiction to try Kember and Budlong for the purely local offenses currently before the court. Therefore, appellants urge, the court lacked power to compel their testimony and cite them for contempt. Appellants acknowledge that D.C.Code s 11-502(3) (1973) allows the U.S. District Court to try local D. C. offenses if those offenses are "joined in the information or indictment with any Federal offense" and that the original indictment against Kember and Budlong charged both federal and local offenses. Since Kember and Budlong were extradited and arraigned only on local charges, however, appellants contend that the District Court lost jurisdiction to try the case and was therefore without power to hold them in contempt for refusing to testify in response to the Government's subpoenas.

The word jurisdiction is popular in the lexicon of lawyers and judges, so popular that its chameleon quality sometimes slips from our grasp. But cases like the one before us force attention to the manifold [p1358] settings in which we employ the term, and remind us that its meaning frequently can be determined only from context. In their briefs and at oral argument, appellants have given first place to their jurisdiction argument. That is understandable in view of the almost automatic association of the word jurisdiction with the adjectives "basic," "fundamental," "essential." If one steps out of the fog law books and judicial decisions sometimes generate, however, it should be apparent that the jurisdictional question tendered here is not a question of jurisdiction writ large. Indeed, of all the objections appellants raise to the order compelling their testimony, the issue labeled jurisdiction may have the least substance in terms of the fairness and reasonableness of the Government demand they resist.

Appellants assert that the case in which they are called upon to testify belongs in the courthouse across the street. They do not suggest that proceedings there would be in any respect fairer or more sensitive to their concerns. They recognize that both courts, the U.S. District Court and the D. C. Superior Court, were established by the same sovereign and that prior to 1970, the U.S. District Court had exclusive jurisdiction over prosecutions of the kind here involved. Because indiscriminate use of the term jurisdiction is inveterate in the profession, appellants cannot be faulted for characterizing the question as they do. Nonetheless, the flaw they assert entails at most jurisdiction writ small.

Jurisdiction is indeed basic when the word is used to mean the legislative, executive or judicial power of the United States or, in our federal system, a state of the United States. Legislative jurisdiction refers to the power of a political entity to enact and apply laws to a given person, thing or occurrence. Executive jurisdiction refers to the power to take administrative action in regard to a given person, thing or occurrence. Judicial jurisdiction denotes the political entity's power to subject a given person, thing or occurrence to its judicial processes. There is in this case no absence of jurisdiction in any of these basic meanings. Congress has the undisputed power under the Constitution to define the crimes involved in the pending prosecution, the U.S. Attorney's Office has undisputed authority to conduct the prosecution, and the United States (Congress), beyond doubt, has power to commit the case to adjudication in a court of its creation. Jurisdiction writ large, therefore, plainly exists in this case.

Nor does the case present any collision of regulatory or prosecutorial interests between different sovereigns. The conduct to which the indictment relates is of unique concern to the United States. No foreign nation and no state of the United States has a comparable, if indeed any, stake in controlling or proscribing the particular activities that constitute the subject matter of the charges against the defendants.

While this case does not concern legislative, executive, or judicial jurisdiction, it does raise an issue of statutory jurisdiction. Although Congress could have empowered the U.S. District Court to try this case, appellants contend it elected to withhold that power. We turn, therefore, to D.C.Code s 11-502(3), the provision governing U.S. District Court authority over D.C.Code offenses.

[1] Section 11-502(3) empowers the U.S. District Court for the District of Columbia to try a local criminal offense if the offense "is joined in the same information or indictment with any Federal offense." As this court stated in United States v. Shepard, 515 F.2d 1324, 1329 (D.C.Cir.1975), this language is "unequivocal." We believe that, so long as an indictment properly joins federal and local offenses under Fed.R.Crim.P. 8, see United States v. Jackson, 562 F.2d 789, 793 (D.C.Cir.1977), Congress intended to give the federal court power to try the local offense. The statute does not suggest that any disposition of the federal offense, subsequent to proper joinder in an indictment, withdraws power over the local offense.

As the Supreme Court stated in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), however, "power need not be exercised in every case in which it is found to exist." In that case the Court ruled that a federal court has power to hear a state civil claim whenever that claim is joined to a federal claim of substance against the same defendant, and the claims so joined derive from a "common nucleus of operative fact." Id. at 725, 86 S.Ct. at 1138. The Court then emphasized that federal courts should decline to exercise that power if it opposes "considerations of judicial economy, convenience and fairness to litigants." Id. at 726, 86 S.Ct. at 1139. In the context of federal pendent jurisdiction over state civil claims, therefore, the Supreme Court's analysis clearly distinguishes the question of power to adjudicate from the separate and subsequent question, is that power appropriately exercised in the circumstances the particular case presents.

We believe that D.C.Code s 11-502(3) calls for a similar distinction. While Congress conferred power on the U.S. District Court to try local offenses whenever those offenses are properly joined with a federal offense, Congress did not instruct the federal forum to exercise that power without regard to the exigencies of the particular case. As this court noted in Jackson, 562 F.2d at 799, Congress probably did not "consciously confront" the problems that would arise when a federal charge, properly joined in the indictment to local charges, faded from the case before trial. Courts, however, should be sensitive to those problems. Just as a federal court asked to exercise pendent jurisdiction over a state civil claim should decline to do so if the federal claims have been dismissed before trial, Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, the U.S. District Court for the District of Columbia should decline to try local offenses when those offenses have been disassociated from any federal charges prior to trial and retention of the case would not comport with "(t)he responsibilities of the District Court with respect to matters of federal concern." Jackson, 562 F.2d at 800. We underscore, however, that this is a matter of sound exercise of the court's discretion, not a question of its power. Just as the question of power over a pendent state claim "will ordinarily be resolved on the pleadings," Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139, the power of the U.S. District Court to try D.C.Code offenses will ordinarily be resolved by the indictment.

We are aware that neither the court in Shepard nor the court in Jackson distinguished between the existence of power under D.C.Code s 11-502(3) and the discretionary exercise of that power. Our distinction, however, conflicts with the holding of neither case. In Jackson the court ruled that the federal and local counts were improperly joined in the original indictment. Plainly, therefore, the court lacked statutory jurisdiction to try the local offenses. Alternatively, the court held that since the federal and local offenses were severed before jeopardy attached, the District Court lost jurisdiction over the local offenses. Under our reading of D.C.Code s 11-502(3), the District Court did not on that account lose power over the local charges, but it abused its discretion by retaining the case. And in Shepard the court ruled only that when a federal charge is dismissed after the trial is well under way the District Court retains jurisdiction to try local offenses properly joined with the federal charge in the original indictment. We agree that when the Shepard pattern is presented, the court should not relinquish its power over the case.

Shepard and Jackson were clear cases; those panels had no need to distinguish between the possession of power under D.C.Code s 11-502(3) and the discretionary exercise of that power. We, however, deal with a novel situation. Witnesses, not defendants, appear before us requesting a ruling that would halt the prosecution. [p1361] We do not embrace the assertion made by the Government at oral argument that under no circumstances may a witness held in contempt for refusing to testify question a court's power to entertain the prosecution. We believe, however, that the power question is all the witness may raise. The defendant, immediately at risk to a far greater extent, may raise in addition the separate, subsequent question, if the power to proceed exists, would exercise of that power in the setting presented constitute an abuse of discretion.

The only jurisdictional question we confront in this case, therefore, is whether the local charges on which Kember and Budlong are standing trial were properly joined to any federal charge in the original indictment. The District Court has twice ruled that the charges in the indictment were properly joined. We agree that "the offenses charged in the indictment allege the same series of acts or transactions within the requirements of Rule 8(b)." United States v. Hubbard, 474 F. Supp. 64, 87 (D.D.C.1979). Since federal and local offenses were properly joined in the original indictment, we hold that the District Court had the power to try Kember and Budlong and that, therefore, no jurisdictional barrier blocks the demand for appellants' testimony.

IV
Appellants next argue that exaction of their testimony through use immunity and consequent coercive contempt violates both their Fifth Amendment privilege against self-incrimination and their Sixth Amendment right to the effective assistance of counsel. While linked considerations are raised, the two claims require different legal analyses and, accordingly, will be discussed separately.

A. Appellants' Privilege Against Self-Incrimination
Appellants contend that the grant of use immunity pursuant to 18 U.S.C. § 6001 et seq. is insufficient to protect them against prosecution use of the testimony now sought to be extracted from them. Therefore, they claim, their continued refusal to testify is sheltered by the Fifth Amendment and is not contemptuous. They argue that, if their convictions on the federal conspiracy count are reversed on appeal, their testimony will be "available" to the prosecution [p1362] and the presiding judge at a later trial on any of the other federal or D.C.Code charges on which they have been indicted. Further, even if their convictions are affirmed, they point to the prospect of further proceedings, such as a sentencing hearing or collateral review, in which the same dangers would arise.

The Government responds that the appellants' Fifth Amendment argument is premature. It relies upon the leading case in this area, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to support its position that judicial consideration of appellants' Fifth Amendment claims must abide occurrence of the further proceedings appellants now forecast or hypothesize. Kastigar held that use immunity did not violate the Fifth Amendment. Justice Powell, writing for the Court, reasoned that the rights of the use-immunized witness were protected because, in any later action against the witness, the Government would have to show that the evidence it presented was untainted by the immunized testimony. Id. at 460-62, 92 S.Ct. at 1664- 66. Justice Powell termed this showing a "heavy burden." Id. at 461, 92 S.Ct. at 1665.

If the Government could show that its evidence had been derived wholly from sources other than the immunized testimony, the Court said, then the witness would stand in the very place he would have occupied had he not been granted immunity and, instead, relied upon the Fifth Amendment. Since the grant of use immunity is designed to place the witness in no worse, but no better, position than that of a non-immunized witness who refuses to testify, the Court thought that the hearing procedure it envisioned in Kastigar safeguarded the Fifth Amendment privilege. Id. at 453, 458-62, 92 S.Ct. at 1661, 1663-66.

The law in this circuit on witness immunity and the Fifth Amendment builds upon the prosecution's burden to show an absence of taint at any later proceeding. In 1974, this court, sitting en banc, decided that a convicted defendant, whose case was still pending on appeal, could nonetheless be compelled by a grant of use immunity to testify before a grand jury on issues which had some bearing upon his own culpability. In re Liddy, 506 F.2d 1293 (D.C.Cir.1974) (en banc). This court reached that conclusion because the hearing requirement imposed by Kastigar, placing as it did the burden of proving a negative upon the Government, ensured that the Government would not be able to use Liddy's immunized testimony or any fruits thereof at any later proceeding. Id. at 1301.

Appellants place heavy reliance upon dictum in Liddy, in which this court reserved the question whether an indicted defendant, as opposed to a convicted one, could be compelled to testify in an incriminating fashion under a grant of use immunity. See id. at 1299-1300. Appellants say they belong in the indicted, not the convicted, defendant category. If their convictions on the conspiracy count are overturned, they assert, they will be subject to prosecution on the burglary charges now held in abeyance. In that event, they claim, their situation would be just like that of any other indicted defendant.

We think appellants' situation is closer to Liddy's than to that of the indicted defendant awaiting initial trial. For the latter, the probability that trial will occur is high. For these appellants, a second trial engagement is conjectural. In another respect, these appellants range nearer to convicted defendants. The concern that the Government's real motive in compelling testimony under use immunity is to gather evidence against the witness is highest in the case of the unindicted witness. If a prosecutorial [p1363] evidence-gathering motive is a risk in the case of a witness facing initial trial following indictment, that risk is diminished when the witness, like these appellants or Liddy, cannot be further prosecuted if his present conviction stands.

The cases cited by appellants are not to the contrary. In cases such as United States v. McDaniel, 449 F.2d 832 (8th Cir. 1971), cert. denied, 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972), the witness prevailed at the subsequent proceeding without an evidentiary hearing because, under the facts of those cases, there was no conceivable showing that the Government could make to prove an absence of taint. All of these cases involved circumstances in which use admittedly had been made of immunized testimony. Therefore, there was no set of facts the Government could possibly adduce to discharge its burden of showing a lack of taint. See id. at 838. In McDaniel, the same federal prosecutor who had seen defendant's immunized testimony was now prosecuting him. Id. at 835. In United States v. Hinton, 543 F.2d 1002, 1006-07 (2d Cir. 1976), the same grand jury that heard the defendant's immunized testimony indicted her. The identical situation arose in United States v. Anzalone, 555 F.2d 317, 319 (2d Cir.), aff'd on rehearing, 560 F.2d 492 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978). Where the taint has been established, there is no point in holding an evidentiary hearing on its existence vel non. In addition, these cases are distinguishable because they all involved witnesses who had testified objecting to use of their statements, not, as here, witnesses seeking to remain silent.

[4] Based on our reading of Kastigar and Liddy we are constrained to conclude that the Government's ripeness argument must prevail. The Kastigar - style hearing to which appellants are entitled in any further proceedings is a safeguard against violation of their Fifth Amendment right. We cannot extract from the authorities before us a conclusion that appellants are entitled to more.

B. Appellant's Right to the Effective Assistance of Counsel
Related to their concern that the prosecutor may use their immunized testimony in violation of their Fifth Amendment privilege, appellants forcefully argue that if the prosecutor is permitted to examine them now, their Sixth Amendment right to the effective assistance of counsel will be undermined. They fear revelation of the strategy they have worked out with their attorneys for use in any future proceedings directed against them. With a view to the possibility of a second trial should their convictions be reversed on appeal, they resist giving the Government a preview of their responses and their demeanor. They point out that their convictions were based on a stipulation and that, to date, they have never testified about the incidents involved in their prosecution.

Appellants claim that their situation is similar to that of defendants whose private communications with their attorneys were revealed to the Government. In United States v. Levy, 577 F.2d 200 (3d Cir. 1978), for example, the court held that such intrusion into the privacy of the attorney-client relationship warranted reversal of a conviction whether or not the informant's disclosure to the Government actually prejudiced the defendant. Judge Gibbons stated that "(w)here there is a knowing invasion of the attorney-client relationship and where confidential information is disclosed to the government," the Sixth Amendment is violated. The only effective remedy, the Levy court held, was to order dismissal of the indictment.

Disclosure to the Government, the Supreme Court has indicated, is critical to the success of a Sixth Amendment invasion of attorney-client relationship claim. In Weatherford v. Bursey, 429 U.S. 545, 555-56, 97 S.Ct. 837, 843-44, 51 L.Ed.2d 30 (1977), the Court said that an informer's intrusion into confidential lawyer-client communications, standing alone, does not constitute a violation of the Sixth Amendment. Communication to the Government, the Court ruled, was essential to establish that the constitutional right had been violated. This case might be described as falling midway between Levy and Weatherford. Disclosure had occurred in Levy; the element of communication was absent in Weatherford. Here, appellants assert a risk of disclosure.

As in the case of appellants' Fifth Amendment challenge, we conclude that the claim of a Sixth Amendment violation is made too soon. The testimony sought conceivably could provide clues to defense positions in later proceedings. But at this stage the matter lies in the realm of prediction. If appellants testify, the evidence they supply may furnish the Government with no insights into possible defense strategies beyond those that documents now in the Government's possession suggest. Nor would appellants be bound by any testimony they give in the Kember-Budlong prosecution. That testimony would not be admissible against them in any subsequent proceeding. The possibility that appellants may respond differently on another day further undercuts the Government's ability to divine later strategy from current testimony. Compounding uncertainty as to the viability of the Sixth Amendment argument, appellants may encounter no further trial. Under the disposition agreement, if appellants' extant convictions withstand appellate review, they will not be subject to prosecution on the charges now held in abeyance.

Additional factors support our refusal to hold that the risk of encroachment upon the attorney-client relationship warrants a stop order now. Unlike the situation in Levy, the Government is not intruding upon confidential communications between attorney and client. It is seeking relevant, first-hand evidence for an ongoing prosecution. Nor can we attribute to the Government any manipulative tactic to secure the testimony of one confederate against another. The separate trials of appellants and of defendants Kember and Budlong were caused by the length of the extradition process, a circumstance outside the control of the United States Attorney.

In summary, we are in no position to determine whether any defense strategy will be disclosed to the Government and decline to rule on the basis of speculation. At this juncture, we reject as premature appellants' contention that their Sixth Amendment right to the effective assistance of counsel has been violated. Our holding is narrow and tied to the special exigencies of this case. If the appellants were awaiting initial trial, or if the unique procedural posture of the case had been of the Government's design, we would be presented with different questions. Our disposition leaves it open to the appellants to renew their Sixth Amendment argument in subsequent proceedings should the facts then existing so warrant.

V
Appellants have raised a series of additional points which they claim demonstrate that the contempt citations in this case are improper. We have carefully examined each of these arguments and find that they supply no substantial basis for reversing the decision of the District Court.

 * A. Claims Arising Under the Fourth Amendment

Appellants contend that they are protected from being compelled to give testimony in this case by the Fourth Amendment. This argument is founded on the belief that appellants would be questioned on the basis of information obtained from evidence illegally seized by the Government. Appellants assert that the Government's case against Kember and Budlong rests largely on documents seized in two searches of Church of Scientology premises in Los Angeles, California on July 8, 1977. Those searches were vigorously attacked by appellants in their own criminal case, and are currently the subject of an appeal pending before this court. Assuming that the initial seizure of the documents was illegal, appellants assert that they have a right to object to any derivative use of those documents by the Government in a case in which they are called as witnesses. The Government argues in response that appellants may not assert this claim because defendants Kember and Budlong have been held to have no standing to challenge the searches in question.

We agree that appellants are not entitled to assert a Fourth Amendment claim in this proceeding. However, we rest our holding on reasoning different from that advanced by the Government.

[6] In resolving this issue, it is critical to recognize that two separate questions may arise concerning a violation of a Fourth Amendment right of a "third party" indirectly involved in a criminal proceeding. The first and more common question concerns the extent to which a defendant has standing to object to the admission of evidence illegally seized from that third party. A second distinct question concerns the extent to which the third party may claim a protection under the Fourth Amendment when the Government proposes to use evidence against the defendant that has been illegally seized from the third party.

As to the first question, the Supreme Court has made clear in recent years that a defendant has no standing to object to the introduction of evidence illegally seized from a third party. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In this case, the District Court held that defendants Kember and Budlong did not have standing to challenge the searches here in question. Assuming this conclusion is proper, the Government is correct in arguing [p1366] that, as a result, defendants have no standing to challenge the subpoenas in this case. This is so even though it may be asserted that the witnesses were found as a result of information obtained during illegal searches and even though the witnesses may be questioned about that information. As stated by the Government, to rule otherwise would grant defendants the right to achieve by indirect means something that the trial court has ruled they cannot do directly, namely, challenge the searches and suppress the evidence seized.

Accepting this argument of the Government, however, does not dispose of appellants' Fourth Amendment argument. Appellants here assert that their own Fourth Amendment rights protect them from being forced to testify in this case. The question presented to us, therefore, focuses on the extent to which the Fourth Amendment protects an individual from unlawful seizures of evidence when that evidence will be used against some other party.

At the outset, it is fundamental that the Fourth Amendment protects all citizens, and not merely criminal defendants. As stated in Weeks v. United States, 232 U.S. 383, 391, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914):

The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.

While this principle is undisputed, it does not resolve the question of what "remedies" are available to an individual whose Fourth Amendment rights have been violated. It is now established that such an individual is entitled to maintain a claim for damages against the officers who conducted the unlawful search. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The individual may obtain the return of the illegally seized property. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931). Perhaps most importantly, the individual may obtain exclusion of unlawfully seized evidence and its "fruits" from a trial in which he is a defendant. Mapp v. Ohio, 367 U.S. 643 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The question presented by this case is whether the individual may also block the use of evidence illegally seized from him by refusing to testify concerning that evidence at a trial of some other party. For the reasons set forth below, we hold that an individual does not have such a right and may be compelled to testify.

We note that the questioning of appellants in this case does not separately violate the Fourth Amendment. As stated in United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 623, 38 L.Ed.2d 561 (1974):

Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong.

As a result, we are not dealing with a question of rights, but of remedies. In particular, we must decide whether appellants, during a criminal proceeding involving another party, may invoke the exclusionary rule to bar the use (and derivative use) of evidence illegally seized from them.

The purpose of the exclusionary rule is not to redress the injury to the privacy of the victim unlawfully searched. As stated in Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965):

(T)he ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.

Instead, the purpose of the exclusionary rule is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment guarantee against unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). Based on these principles, the Supreme Court in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), held that a witness before a grand jury could not invoke the exclusionary rule to bar questioning based on illegally seized evidence. In so doing, the Court described the scope of the exclusionary rule in a manner critical to the resolution of this case:

(S)tanding to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search. This standing rule is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government's unlawful conduct would result in imposition of a criminal sanction on the victim of the search.

414 U.S. at 348, 94 S.Ct. at 620 (citations omitted).

In stating that an individual only has "standing" to assert the exclusionary rule in a case in which the Government is attempting to impose criminal sanctions against that individual, Calandra resolves this case. The illegally seized evidence sought to be used here will not incriminate appellants, the alleged victims of the unlawful search, in this action. The evidence sought may only incriminate defendants Kember and Budlong. Nor can appellants claim that they have a right to assert the exclusionary rule because the Government is attempting to impose a sanction against them in the form of civil contempt. Appellants do not seek exclusion in their contempt proceeding, but rather in the criminal trial of defendants Kember and Budlong. We recognize that the present case is not identical to Calandra. Calandra involved a subpoena issued by a grand jury, a legally "neutral" body that at least in theory is independent from the Government officers who conducted the illegal search. In the present case, the subpoenas were issued by a United States Attorney, who admittedly is not legally neutral, and is in fact responsible for the agents who committed the alleged unlawful seizures of the evidence. In McSurely v. McClellan, 521 F.2d 1024 (D.C.Cir.1975), this court suggested in dicta that the participation of Government agents in an unlawful search could prohibit those agents from using material unlawfully seized. In McSurely, this court, against the objection of a witness from whom the evidence was seized, upheld the right of a congressional committee to subpoena material unlawfully seized by unrelated state government officials. The court stated, however: As with the grand jury, the Congressional committee may not be privileged to utilize such information if its agents have actively participated in the original unlawful seizure. 521 F.2d at 1046 (emphasis supplied).

Nevertheless, we refuse to accept the implication that a witness may bar the United States Attorney in this case from using evidence that was illegally seized by "agents" of the United States Attorney. First, we note that the statement in McSurely is clearly dictum. Second, we believe that this dictum is at odds with the Supreme Court cases cited above, including Calandra, indicating that neither the witness from whom the evidence was illegally seized, nor the defendant, has standing to object to the use of the evidence in a criminal proceeding involving only the defendant. Third, we find that, pursuant to the basic rationale of Calandra, this is not a situation where the exclusionary rule need apply.

Application of the exclusionary rule in this situation would clearly serve to increase its deterrent effect on police, particularly since those seizing the evidence here are the lawful "agents" of those seeking to use the information. This is not a situation, however, where evidence unlawfully secured from an individual is being used to impose criminal sanctions against that same individual. As the Supreme Court recognized in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969), "we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion." The use of the evidence in this case thus does not seriously affront basic notions of justice and fair play that form in part the foundation for the exclusionary rule. In this case, as in Calandra, appellants' interests are adequately protected by the right to pursue a civil action for damages, the right to seek return of any evidence illegally seized, and the right to exclude the evidence in any criminal proceeding directed against them. These rights are sufficient to remedy any Fourth Amendment violation about which appellants may complain. Accordingly, we hold that the Fourth Amendment does not bar the compulsion of appellants' testimony in this case.

 * B. Questioning of Appellants Based on Unlawful Electronic Surveillance

Appellants further contend that the District Court failed to ensure adequately that the questions to be asked them at the Kember-Budlong trial would not be derived from unlawful electronic surveillance. On July 16, 1980, appellants requested that the Government conduct a search for electronic surveillance of appellants or their counsel in accordance with 18 U.S.C. s 3504(a) (1976). In response to this request, the Government admitted that the FBI conducted electronic monitoring of Leonard Boudin, counsel for appellant Mary Sue Hubbard. No electronic surveillance had been conducted of any of the appellants.

Congress and the courts have expressed a general policy that evidence obtained from unlawful electronic surveillance should not be admissible before a court or grand jury. In 18 U.S.C. s 2518(10)(a) (Supp. III 1979), Congress has provided that:

Any aggrieved person in any trial may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval. See also In re Evans, 452 F.2d 1239, 1249 (D.C.Cir.1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972). This court has held that "the mere assertion" that unlawful wiretapping has been used against a party triggers the requirement of 18 U.S.C. s 3504(a)(1) that the Government "affirm or deny the occurrence of the alleged unlawful act." Evans, supra, 425 F.2d at 1247. In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), and in cases decided p1369 subsequent to Alderman, it has been established that if the Government admits that unlawful electronic surveillance was conducted on the premises of an individual or involved any conversation to which that individual was a party, then the transcriptions of, or records documenting, that surveillance must be turned over to that individual.

A more difficult problem is presented where the Government admits to conducting unlawful electronic surveillance of a person connected with the individual requesting disclosure, with no surveillance conducted of the individual who has requested the disclosure. In such a case, the concern remains that the Government may have obtained evidence concerning the individual requesting disclosure through unlawful electronic surveillance. At the same time, to disclose such information would violate privacy rights of those persons party to the conversations. Assuming that a right exists (see note 25 supra ), a conflict is presented in such a case as to how to guarantee that the Government does not improperly use information seized through unlawful electronic surveillance.

To avoid significant intrusions upon the privacy of others, this court has held that the Government's assertion that no evidence to be used at trial was obtained by unlawful surveillance is sufficient to allow the Government to proceed against the individual requesting disclosure. As stated in United States v. Williams, 580 F.2d 578, 585 (D.C.Cir.), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978):

We have, then, hewed to the view that the Government's denial must generally be accepted as conclusive, and we do so again today.

The court in Williams also held that this denial need not be in affidavit form. Id. at 585 n.38. [9] In the present case, no surveillance was conducted of conversations on the appellants' own premises or to which appellants were a party. There was thus no need to turn over any surveillance records to the appellants. Although the Government did admit to surveillance of Leonard Boudin, counsel for one of the appellants, we believe that the Government has sufficiently demonstrated that none of the questions to be put to appellants were derived from this electronic surveillance.

In response to appellants' surveillance request, the Government submitted a letter from Assistant Attorney General Heymann stating that ten Government agencies had conducted searches to determine whether any of the appellants or their attorneys had been monitored electronically. The replies of nine of those agencies were attached to that letter, reporting no such surveillance. While the FBI admitted monitoring the conversations of Mr. Boudin, the Government submitted affidavits of its two principal prosecutors and the FBI case agent declaring that none of the investigation in this matter had been derived from electronic surveillance, and that none of the questions to be put to appellants were based on information obtained from such surveillance. Finally, the District Court heard arguments of counsel and examined in camera the FBI logs of the electronic surveillance of Mr. Boudin. The District Court concluded that it was clear that the intercepted conversations had no relationship to the present case.

On the basis of these facts, and in light of this court's opinion in Williams, supra, we believe that the District Court adequately ensured that the questions asked of appellants at trial would not be based on unlawful electronic surveillance. We find nothing in this case to warrant the imposition of procedures beyond those held sufficient in Williams. On the basis of the authority cited above, there is no reason why the p1370 District Court should have allowed defense counsel to participate in examination of the FBI logs, or should have conducted a hearing at which agency representatives would testify with respect to the recording, copying, and search for relevant electronic surveillance records, as appellants contend.

We have examined each of the additional arguments raised by appellants, and find them to be without merit. As stated above, this court in Williams directly upheld the right of the Government to submit a denial of electronic surveillance in the form of an unsworn letter. In addition, the ten-agency search conducted by the Government in this case was sufficient to satisfy the statutory requirement that the Government "affirm or deny the occurrence of the alleged unlawful act." 18 U.S.C. s 3504(a)(1). At a minimum, the Government need only conduct a search of those agencies with responsibilities related to the subject matter of the case. See Note, Claiming Illegal Electronic Surveillance: An Examination of 18 U.S.C. s 3504(a)(1), 11 Harv.C.R.-C.L.L.Rev. 632, 659 (1976). Finally, there is nothing in the statute that requires the Government to inquire into state or local electronic monitoring. See Note, supra, at 662. On the basis of the foregoing, we hold that, on the facts in this case, the alleged unlawful electronic surveillance of an appellant's counsel did not bar the compulsion of appellants' testimony.

 * C. Claims Pertaining to the Grants of Immunity

Appellants offer four additional grounds upon which they claim that the Government's grants of immunity to the appellants were unlawful. They urge this court to exercise its supervisory authority over the administration of criminal justice to reverse the contempt order on these grounds. We have examined each of appellants' arguments, and find them to be without merit.

First, appellants contend that the grant of immunity was improper because contrary to guidelines set forth in the United States Attorneys' Manual. We believe that this argument must fail for the simple reason that the grants of immunity were not contrary to the guidelines set forth in the Manual. It must be recalled that a conviction has already been secured by the Government against each of the appellants. Moreover, appellants admit that the Manual itself states that the guidelines are not binding. Finally, we do not believe that the general guidelines established by the Manual are judicially enforceable, particularly since these guidelines do not reflect constitutional concerns. Accord, Beverly v. United States, 468 F.2d 732 (5th Cir. 1972); see also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

Second, appellants contend that the grants of immunity were improper because the Government made no showing that the testimony of the appellants was "necessary." See In re Vericker, 446 F.2d 244 (2d Cir. 1971) (involving immunity granted to a witness called to testify before a grand jury). In response, the Government argues that no such showing is required when the evidence is presented to prove guilt beyond a reasonable doubt at a criminal trial, and that, in any event, an adequate showing of [p1371] necessity was made in this case. We agree with the Government that, in the circumstances this case presents, sufficient cause exists for compelling appellants' testimony. The Government has demonstrated that all four appellants can provide non-cumulative, first-hand evidence of the involvement of Kember and Budlong in the commission of the crimes with which they are charged. The appellants' testimony would assist the jury in understanding the full role played by the defendants in the crimes charged. The information appellants can relate would surely contribute to "the search for the truth" in this case.

Third, appellants contend that the compulsion of testimony from Mrs. Hubbard would violate the terms of the disposition agreement entered into between the Government and Mrs. Hubbard. That agreement provides in relevant part:

The government retains the right to allocute on matters in any fashion it chooses as to all defendants except the defendant Hubbard. As to the defendant Hubbard, the government agrees to advise the Court as follows: "the government takes no position and is making no request on the matter of sentence with respect to the defendant Hubbard." It is understood that Mrs. Hubbard, through her counsel, will make no statement in allocution concerning the facts of the case. United States v. Hubbard, Crim.No. 78-401, Memorandum Opinion at 10 (October 8, 1979) (Richey, J.). Appellants assert that the Government here seeks to elicit from Mrs. Hubbard the very same damaging statements that the Government is forbidden to give to the sentencing court.

It is plain that the subpoena for Mrs. Hubbard's testimony in this case calls for no statement by her or by the Government to the sentencing court. An allocution is a statement to the sentencing judge before a sentence is pronounced. See United States v. Foss, 501 F.2d 522, 530 n.3 (1st Cir. 1974). Mrs. Hubbard is being compelled to testify in a trial separate from her own. Such testimony is not an allocution in violation of the disposition agreement. Safeguards exist to assure that anything Mrs. Hubbard may say at the Kember-Budlong trial is not called to the attention of the sentencing judge.

Fourth, appellants claim that the grants of immunity in this case were improper because the Government denied Mrs. Hubbard's motion in her own trial to secure the testimony of defendant Kember pursuant to a grant of immunity. Appellants argue that to require the testimony of Mrs. Hubbard and the other appellants in the trial of Kember and Budlong, when the Government refused to grant immunity to Mrs. Kember in the trial of appellant Hubbard, violates the rights of the appellants to due process of law, to the equal protection of the laws, and to a fair trial, as guaranteed by the Fifth and Sixth Amendments.

Initially, we note that many of these arguments are more appropriately raised by appellants in attacking their own convictions. Similarly, any impropriety by the Government affecting the fairness of the trial of defendants Kember and Budlong may be raised by those defendants in their own right. We express no view as to the likelihood of success of such arguments should they be raised by appellants or by Kember and Budlong as defendants.

Courts have long recognized that grants of immunity are largely made at the discretion of the executive and legislative branches of the Government. See Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). At the time that the Government refused Mrs. Hubbard's request that immunity be granted to Mrs. Kember, Kember was in the United Kingdom, challenging the extradition request of this country. Moreover, Kember was a codefendant charged with the same crimes in the same indictment with appellants. We find, therefore, that no manipulation or bad [p1372] faith on the part of the Government is uncovered by the fact that the Government granted immunity to Hubbard but refused to grant immunity to Kember. At the time that immunity was considered for each witness, Hubbard and Kember stood in very different positions before the Government. The failure of the Government to treat them in the same way does not illustrate a "subversion of the immunity process" by the Government, as appellants contend.

In summary, we find no reason to exercise whatever supervisory authority we may have over the administration of criminal justice to reverse the contempt order on the basis of the grants of immunity to appellants.

D. Allegations of Bad Faith
[14] Appellants lastly contend that the Government's attempt in this action to compel them to testify at the trial of defendants Kember and Budlong is based on bad faith, vindictiveness, and unconstitutional purposes. As a result, appellants argue that the District Court should have granted appellants' motions to quash the subpoenas or, in the alternative, that the District Court at least should have granted appellants' requests for an evidentiary hearing to examine their allegations.

We do not deny that the circumstances surrounding this action are unusual. Upon consideration, however, we are unable to conclude that the Government sought the testimony of these appellants in bad faith or with a purpose to be vindictive. There simply is not sufficient evidence that the Government sought this testimony for any reason other than to build as strong a case as possible to present to the jury, and to convince that body that defendants Kember and Budlong were guilty beyond a reasonable doubt. This conclusion is buttressed by the Government's explanation to the District Court that appellants were the only people in the alleged conspiracy who had dealt directly with defendants Kember and Budlong. On the basis of the record in this case, we are unable to conclude that appellants have met their burden of proving bad faith, prosecutorial vindictiveness, or harassment. See United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Catlett, 584 F.2d 864 (8th Cir. 1978). There was no error in the denial of appellants' motions by the District Court.

VI
For all of the foregoing reasons, the decision of the District Court is affirmed.


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Rh his brother not unnaturally grew cool towards him, and he began to find himself one too many at the "George Hotel." "I don't think brothers care much for you," he said, as a general reflection upon life. Hurt at this change, nearly penniless, and too proud to ask for more, he set off on foot and walked eighty miles to Weymouth, living on the journey as he could. He would have enlisted, but he was too small for the army and too old for the navy; and thought himself fortunate at last to find a berth on board a trading dandy. Somewhere in the Bristol Channel, the dandy sprung a leak and went down; and though the crew were picked up and brought ashore by fishermen, they found themselves with nothing but the clothes upon their back. His next engagement was scarcely better starred; for the ship proved so leaky, and frightened them all so heartily during a short passage through the Irish Sea, that the entire crew deserted and remained behind upon the quays of Belfast. Evil days were now coming thick on the Devonian. He could find no berth in Belfast, and had to work a passage to Glasgow on a steamer. She reached the Broomielaw on a Wednesday: the Devonian had a bellyful that morning, laying in breakfast manfully to provide against the future, and set off along the quays to seek employment. But he was now not only penniless, his clothes


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80 had begun to fall in tatters; he had begun to have the look of a street Arab; and captains will have nothing to say to a ragamuffin; for in that trade, as in all others, it is the coat that depicts the man. You may hand, reef, and steer like an angel, but if you have a hole in your trousers, it is like a millstone round your neck. The Devonian lost heart at so many refusals. He had not the impudence to beg; although, as he said, "when I had money of my own, I always gave it." It was only on Saturday morning, after three whole days of starvation, that he asked a scone from a milk-woman, who added of her own accord a glass of milk. He had now made up his mind to stow away, not from any desire to see America, but merely to obtain the comfort of a place in the forecastle and a supply of familiar sea-fare. He lived by begging, always from milkwomen, and always scones and milk, and was not once refused. It was vile wet weather, and he could never have been dry. By night he walked the streets, and by day slept upon Glasgow Green, and heard, in the intervals of his dozing, the famous theologians of the spot clear up intricate points of doctrine and appraise the merits of the clergy. He had not much instruction; he could "read bills on the street," but was "main bad at writing"; yet these theologians seem to have impressed him


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Rh with a genuine sense of amusement. Why he did not go to the Sailor's Home I know not; I presume there is in Glasgow one of these institutions, which are by far the happiest and the wisest effort of contemporaneous charity; but I must stand to my author, as they say in old books, and relate the story as I heard it. In the meantime, he had tried four times to stow away in different vessels, and four times had been discovered and handed back to starvation. The fifth time was lucky; and you may judge if he were pleased to be aboard ship again, at his old work, and with duff twice a week. He was, said Alick, "a devil for the duff." Or if devil was not the word; it was one if anything stronger. The difference in the conduct of the two was remarkable. The Devonian was as willing as any paid hand, swarmed aloft among the first, pulled his natural weight and firmly upon a rope, and found work for himself when there was none to show him. Alick, on the other hand, was not only a skulker in the grain, but took a humourous and fine gentlemanly view of the transaction. He would speak to me by the hour in ostentatious idleness; and only if the bo's'un or a mate came by, fell-to languidly for just the necessary time till they were out of sight. "I 'm not breaking my heart with it," he remarked. Once there was a hatch to be opened near where


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82 he was stationed; he watched the preparations for a second or so suspiciously, and then, "Hullo," said he, "here's some real work coming—I'm off," and he was gone that moment. Again, calculating the six guinea passage-money, and the probable duration of the passage, he remarked pleasantly that he was getting six shillings a day for this job, "and it's pretty dear to the company at that." "They are making nothing by me," was another of his observations; "they're making something by that fellow." And he pointed to the Devonian, who was just then busy to the eyes. The more you saw of Alick, the more, it must be owned, you learned to despise him. His natural talents were of no use either to himself or others; for his character had degenerated like his face, and become pulpy and pretentious. Even his power of persuasion, which was certainly very surprising, stood in some danger of being lost or neutralised by over-confidence. He lied in an aggressive, brazen manner, like a pert criminal in the dock; and he was so vain of his own cleverness that he could not refrain from boasting, ten minutes after, of the very trick by which he had deceived you. "Why, now I have more money than when I came on board," he said one night, exhibiting a sixpence, "and yet I stood myself a bottle of beer before I went to bed yesterday. And as for tobacco, I


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Rh have fifteen sticks of it." That was fairly successful indeed; yet a man of his superiority, and with a less obtrusive policy, might, who knows? have got the length of half a crown. A man who prides himself upon persuasion should learn the persuasive faculty of silence, above all as to his own misdeeds. It is only in the farce and for dramatic purposes that Scapin enlarges on his peculiar talents to the world at large. Scapin is perhaps a good name for this clever, unfortunate Alick; for at the bottom of all his misconduct there was a guiding sense of humour that moved you to forgive him. It was more than half a jest that he conducted his existence. "Oh, man," he said to me once with unusual emotion, like a man thinking of his mistress, "I would give up anything for a lark." It was in relation to his fellow-stowaway that Alick showed the best, or perhaps I should say the only good, points of his nature. "Mind you," he said suddenly, changing his tone, "mind you that's a good boy. He wouldn't tell you a lie. A lot of them think he is a scamp because his clothes are ragged, but he isn't; he's as good as gold." To hear him, you become aware that Alick himself had a taste for virtue. He thought his own idleness and the other's industry equally becoming. He was no more anxious to insure his own reputation


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84 as a liar than to uphold the truthfulness of his companion; and he seemed unaware of what was incongruous in his attitude, and was plainly sincere in both characters. It was not surprising that he should take an interest in the Devonian, for the lad worshipped and served him in love and wonder. Busy as he was, he would find time to warn Alick of an approaching officer, or even to tell him that the coast was clear, and he might slip off and smoke a pipe in safety. "Tom," he once said to him, for that was the name which Alick ordered him to use, "if you don't like going to the galley, I'll go for you. You ain't used to this kind of thing, you ain't. But I'm a sailor; and I can understand the feelings of any fellow, I can." Again, he was hard up, and casting about for some tobacco, for he was not so liberally used in this respect as others perhaps less worthy, when Alick offered him the half of one of his fifteen sticks. I think, for my part, he might have increased the offer to a whole one, or perhaps a pair of them, and not lived to regret his liberality. But the Devonian refused. "No," he said, "you're a stowaway like me; I won't take it from you, I'll take it from some one who's not down on his luck." It was notable in this generous lad that he was strongly under the influence of sex. If a woman passed near where he was working, his eyes lit up,


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Rh his hand paused, and his mind wandered instantly to other thoughts. It was natural that he should exercise a fascination proportionally strong upon women. He begged, you will remember, from women only, and was never refused. Without wishing to explain away the charity of those who helped him, I cannot but fancy he may have owed a little to his handsome face, and to that quick, responsive nature, formed for love, which speaks eloquently through all disguises, and can stamp an impression in ten minutes' talk or an exchange of glances. He was the more dangerous in that he was far from bold, but seemed to woo in spite of himself, and with a soft and pleading eye. Ragged as he was, and many a scarecrow is in that respect more comfortably furnished, even on board he was not without some curious admirers. There was a girl among the passengers, a tall, blond, handsome, strapping Irishwoman, with a wild, accommodating eye, whom Alick had dubbed Tommy, with that transcendental appropriateness that defies analysis. One day the Devonian was lying for warmth in the upper stoke-hole, which stands open on the deck, when Irish Tommy came past, very neatly attired, as was her custom. "Poor fellow," she said, stopping, "you haven't a vest."

"No," he said;" I wish I 'ad."


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86 Then she stood and gazed on him in silence, until, in his embarrassment, for he knew not how to look under this scrutiny, he pulled out his pipe and began to fill it with tobacco. "Do you want a match?" she asked. And before he had time to reply, she ran off and presently returned with more than one. That was the beginning and the end, as far as our passage is concerned, of what I will make bold to call this love-affair. There are many relations which go on to marriage and last during a lifetime, in which less human feeling is engaged than in this scene of five minutes at the stoke-hole. Rigidly speaking, this would end the chapter of the stowaways; but in a larger sense of the word I have yet more to add. Jones had discovered and pointed out to me a young woman who was remarkable among her fellows for a pleasing and interesting air. She was poorly clad, to the verge, if not over the line, of disrespectability, with a ragged old jacket and a bit of a sealskin cap no bigger than your fist; but her eyes, her whole expression, and her manner, even in ordinary moments, told of a true womanly nature, capable of love, anger, and devotion. She had a look, too, of refinement, like one who might have been a better lady than most, had she been allowed the opportunity. When alone she seemed preoccupied and sad; but she was not


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Rh often alone; there was usually by her side a heavy, dull, gross man in rough clothes, chary of speech and gesture—not from caution, but poverty of disposition; a man like a ditcher, unlovely and uninteresting; whom she petted and tended and waited on with her eyes as if he had been Amadís de Gaula:Amadis of Gaul. It was strange to see this hulking fellow dog-sick, and this delicate, sad woman caring for him. He seemed, from first to last, insensible of her caresses and attentions, and she seemed unconscious of his insensibility. The Irish husband, who sang his wife to sleep, and this Scottish girl serving her Orson, were the two bits of human nature that most appealed to me throughout the voyage. On the Thursday before we arrived, the tickets were collected; and soon a rumour began to go round the vessel; and this girl, with her bit of seal-skin cap, became the centre of whispering and pointed fingers. She, also, it was said, was a stowaway of a sort; for she was on board with neither ticket nor money; and the man with whom she travelled was the father of a family, who had left wife and children to be hers. The ship's officers discouraged the story, which may therefore have been a story and no more; but it was believed in the steerage, and the poor girl had to encounter many curious eyes from that day forth.


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 RAVEL is of two kinds; and this voyage of mine across the ocean combined both. "Out of my country and myself I go," sings the old poet: and I was not only travelling out of my country in latitude and longitude, but out of myself in diet, associates, and consideration. Part of the interest and a great deal of the amusement flowed, at least to me, from this novel situation in the world. I found that I had what they call fallen in life with absolute success and verisimilitude. I was taken for a steerage passenger; no one seemed surprised that I should be so; and there was nothing but the brass plate between decks to remind me that I had once been a gentleman. In a former book, describing a former journey, I expressed some wonder that I could be readily and naturally taken for a pedlar, and explained the accident by the difference of language and manners between England and France. I must now take a humbler view; for here I was among my own countrymen, somewhat


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Rh roughly clad, to be sure, but with every advantage of speech and manner; and I am bound to confess that I passed for nearly anything you please except an educated gentleman. The sailors called me "mate," the officers addressed me as "my man," my comrades accepted me without hesitation for a person of their own character and experience, but with some curious information. One, a mason himself, believed I was a mason; several, and among these at least one of the seamen, judged me to be a petty officer in the American navy; and I was so often set down for a practical engineer that at last I had not the heart to deny it. From all these guesses I drew one conclusion, which told against the insight of my companions. They might be close observers in their own way, and read the manners in the face; but it was plain that they did not extend their observation to the hands. To the saloon passengers also I sustained my part without a hitch. It is true I came little in their way; but when we did encounter, there was no recognition in their eye, although I confess I sometimes courted it in silence. All these, my inferiors and equals, took me, like the transformed monarch in the story, for a mere common, human man. They gave me a hard, dead look, with the flesh about the eye kept unrelaxed. With the women this surprised me less, as I had


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90 already experimented on the sex by going abroad through a suburban part of London simply attired in a sleeve-waistcoat. The result was curious. I then learned for the first time, and by the exhaustive process, how much attention ladies are accustomed to bestow on all male creatures of their own station; for, in my humble rig, each one who went by me caused me a certain shock of surprise and a sense of something wanting. In my normal circumstances, it appeared every young lady must have paid me some tribute of a glance; and though I had often not detected it when it was given, I was well aware of its absence when it was withheld. My height seemed to decrease with every woman who passed me, for she passed me like a dog. This is one of my grounds for supposing that what are called the upper classes may sometimes produce a disagreeable impression in what are called the lower; and I wish some one would continue my experiment, and find out exactly at what stage of toilette a man becomes invisible to the well-regulated female eye. Here on shipboard the matter was put to a more complete test; for, even with the addition of speech and manner, I passed among the ladies for precisely the average man of the steerage. It was one afternoon that I saw this demonstrated. A very plainly dressed woman was taken ill on deck. I think I


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Rh had the luck to be present at every sudden seizure during all the passage; and on this occasion found myself in the place of importance, supporting the sufferer. There was not only a large crowd immediately around us, but a considerable knot of saloon passengers leaning over our heads from the hurricane-deck. One of these, an elderly managing woman, hailed me with counsels. Of course I had to reply; and as the talk went on, I began to discover that the whole group took me for the husband. I looked upon my new wife, poor creature, with mingled feelings; and I must own she had not even the appearance of the poorest class of city servant-maids, but looked more like a country wench who should have been employed at a roadside inn. Now was the time for me to go and study the brass plate. To such of the officers as knew about me—the doctor, the purser, and the stewards—I appeared in the light of a broad joke. The fact that I spent the better part of my day in writing had gone abroad over the ship and tickled them all prodigiously. Whenever they met me they referred to my absurd occupation with familiarity and breadth of humourous intention. Their manner was well calculated to remind me of my fallen fortunes. You may be sincerely amused by the amateur literary efforts of a gentleman, but you scarce publish the


text:
Nationality in Drinks

I

My heart sank with our Claret-flask, Just now, beneath the heavy sedges That serve this pond's black face for mask; And still at yonder broken edges O' the hole, where up the bubbles glisten, After my heart I look and listen.

II

Our laughing little flask, compelled Thro' depth to depth more bleak and shady; As when, both arms beside her held, Feet straightened out, some gay French lady Is caught up from life's light and motion, And dropped into death's silent ocean!

—————

Up jumped Tokay on our table, Like a pygmy castle-warder, Dwarfish to see, but stout and able, Arms and accoutrements all in order; And fierce he looked North, then, wheeling South, Blew with his bugle a challenge to Drouth, Cocked his flap-hat with the tosspot-feather, Twisted his thumb in his red moustache, Jingled his huge brass spurs together, Tightened his waist with its Buda sash, And then, with an impudence nought could abash, Shrugged his hump-shoulder, to tell the beholder, For twenty such knaves he should laugh but the bolder: And so, with his sword-hilt gallantly jutting, And dexter-hand on his haunch abutting, Went the little man, Sir Ausbruch, strutting!

—————

Here's to Nelson's memory! 'Tis the second time that I, at sea, Right off Cape Trafalgar here, Have drunk it deep in British Beer. Nelson for ever—any time Am I his to command in prose or rhyme! Give me of Nelson only a touch, And I save it, be it little or much: Here's one our Captain gives, and so Down at the word, by George, shall it go! He says that at Greenwich they point the beholder To Nelson's coat, "still with tar on the shoulder: "For he used to lean with one shoulder digging, "Jigging, as it were, and zig-zag-zigging "Up against the mizen-rigging!"

title: Nationality in Drinks


text:
Bells and Pomegranates, Second Series/Song

I

Nay but you, who do not love her, Is she not pure gold, my mistress? Holds earth aught—speak truth—above her? Aught like this tress, see, and this tress, And this last fairest tress of all, So fair, see, ere I let it fall?

II

Because, you spend your lives in praising; To praise, you search the wide world over: Then why not witness, calmly gazing, If earth holds aught—speak truth—above her? Above this tress, and this, I touch But cannot praise, I love so much!


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


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"Vixerunt nonnuli in agris, delectati re sua familiari. His idem propositum fuit quod regibus, ut ne qua re agerent, ne cui parerent, libertate uterentur: cujus proprium est sic vivere ut velis." , De Off., I. xx.


text:
Translation:Shulchan Aruch/Orach Chaim/674

 That it is Permitted to Kindle Lights From One Another

שמותר להדליק מנר לנר

Paragraph 1 — We kindle one Hanukkah light from [another] Hanukkah light, and specifically kindling one from another without an intermediary, but kindling one from another through a non-sacred light is prohibited. And some permit even this, unless it is in such a way that there is concern that the non-sacred light will be extinguished before kindling the other Hanukkah light.
 * Rem"a: And we have adopted the custom to be stringent with the Hanukkah lights not to kindle even from one light to another, for its main mitzvah is only one candle, and the rest are not as much for the mitzvah. Therefore one should not kindle one from another. (Hagahot Maimoniot and Mordechai) And all this is only while they are still alight for the mitzvah, but after the time of the mitzvah has passed, it is permitted to benefit from them, [so] all the more so it is permitted to kindle from them. (Nimukei Yosef Minor Laws)

סעיף א — מדליקין נר חנוכה מנר חנוכה ודוקא להדליק זה מזה בלא אמצעי אבל להדליק מזה לזה על ידי נר של חול אסור ויש מתירים גם בזה אא"כ הוא בענין שיש לחוש שיכבה הנר של חול קודם שידליק נר אחר של חנוכה.
 * הגה: ונהגו להחמיר בנרות חנוכה שלא להדליק אפילו מנר לנר דעיקר מצותו אינו אלא נר אחד והשאר אינו למצוה כ"כ לכן אין להדליק זה מזה (הגה"מ ומרדכי) וכל זה אינו רק בעוד שדולקין למצותן אבל אחר שעבר זמן המצוה מותרים בהנאה כ"ש שמותר להדליק מהן (נ"י הל' קטנות).

Paragraph 2 — There is an [opinion] that says that the lights of the synagogue, of the Sabbath, and of Hanukkah are all mitzvah [lights] and it is permitted to light one from another.
 * Rem"a: It is the same law for a light for Torah study or a light for a sick person who needs a light, (Nimukei Yosef Minor Laws) and regarding the light of the synagogue see above 154:14.

סעיף ב — יש מי שאומר שנר של בהכ"נ ושל שבת ושל חנוכה כולם של מצוה הם ומותר להדליק זה מזה.
 * הגה: והוא הדין נר של ת"ת או נר לחולה הצריך נר (נ"י ה"ק) ובענין נר של בהכ"נ עיין לעיל סימן קנ"ד סעיף י"ד.

 * }

שולחן ערוך אורח חיים תרעד


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put it in the best possible shape by amending it before it is voted on. After a paragraph has been inserted it cannot be amended except by adding to it; and it cannot be struck out except in connection with other paragraphs so as to make the question essentially a new one. If a paragraph is struck out, it cannot be inserted afterwards unless it is so changed in wording or place as to present an essentially new question. If the motion to insert or to strike out a paragraph is lost, it does not preclude any other motion except one that presents essentially the same question as the one that the assembly has already decided, as shown above in the case of amending words of a paragraph. Thus, when a motion to insert a paragraph has been lost, it is in order to move to insert a part of the paragraph or the entire paragraph if materially altered. So, though the assembly has refused to strike out a paragraph, it is in order to strike out a part of the paragraph or otherwise to amend it, though it is safer for its friends to make it as nearly perfect as possible before the vote is taken on striking it out, with a view to defeating that motion.

A motion to substitute one paragraph for another (which is a combination of the two preceding motions) after being stated by the chair is resolved into its two elements for the purpose of amendment, the chair at first entertaining amendments only to the paragraph


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to be struck out, these amendments being of the second degree. After it is perfected by its friends, the chair asks if there are any amendments proposed to the paragraph to be inserted. When both paragraphs have been perfected by amendments the question is put on substituting one paragraph for the other. Even though the paragraph constitutes the entire resolution and the motion to substitute is carried, it is necessary afterwards to vote on adopting the resolution, as it has only been voted to substitute one paragraph for another. A paragraph that has been substituted for another cannot be amended afterwards, except by adding to it, like any other paragraph that has been inserted. The paragraph that has been replaced cannot be again inserted unless so modified as to constitute a new question, as with any paragraph that has been struck out. If the motion to substitute is lost, the assembly has only decided that that particular paragraph shall not replace the one specified. It may be willing that it replace some other paragraph, or that it be inserted, or that the paragraph retained in the resolution be further amended, or even struck out. But no amendment is in order that presents to the assembly practically a question that it has already decided. In parliamentary language it is not correct to speak of "substituting" one word or part of a paragraph for another, as the term is


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applied to nothing less than a paragraph. When a question is being considered by section, it is in order to move a substitute for the pending section. A substitute for the entire resolution, or report, cannot be moved until the sections have all been considered and the chair has announced that the entire paper is open to amendment. When a resolution with amendments of the first and second degree pending, is referred to a committee, they may report it back with a substitute for the resolution which they recommend, even though two amendments are pending. In such a case the chair states the question first on the amendments that were pending when the resolution was committed. When they are disposed of, he states the question on the substitute recommended by the committee and proceeds as in case of any other substitute motion.

Improper Amendments. An amendment is not in order which is not germane to the question to be amended; or merely makes the affirmative of the amended question equivalent to the negative of the original question; or is identical with a question previously decided by the assembly during that session; or changes one form of amendment to another form; or substitutes one form of motion for another form; or strikes out the word Resolved from a resolution; or strikes out or inserts words which would leave no rational


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proposition before the assembly; or is frivolous or absurd. An amendment of an amendment must be germane to — that is, must relate to — the subject of the amendment as well as the main motion. No independent new question can be introduced under cover of an amendment. But an amendment may be in conflict with the spirit of the original motion and still be germane, and therefore in order.

Illustrations: A resolution of censure may be amended by striking out the word "censure" and inserting the word "thanks," for both relate to opinion of certain conduct; refusing to censure is not the same as expressing thanks. A resolution to purchase some books could not be amended by striking out the words relating to books and inserting words relating to a building. Suppose a resolution pending directing the treasurer to purchase a desk for the secretary, and an amendment is offered to add the words, "and to pay the expenses of the delegates to the State Convention;" such an amendment is not germane to the resolution, as paying the expenses of the delegates is in no way related to purchasing a desk for the secretary, and is therefore out of order. But if an amendment were offered to insert the words "and a permanent record book" after the word "desk," it would be in order, because both are articles to enable the secretary to perform his duties. If a resolution were pending condemning certain things,


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it could be amended by adding other things that were similar or in some way related to them. Suppose a resolution commending A and B for heroism is pending; if the acts of heroism were not connected, amendments are in order adding other names for other acts of heroism; but if the commendation is for an act of heroism in which A and B were joined, then no names can be added to the resolution unless the parties were connected with A and B in that act. Suppose the following resolution pending: "Resolved, That the Secretary be instructed to notify our representative in Congress that we do approve of his course in regard to the tariff." A motion to amend by inserting not after the word be would be out of order, because an affirmative vote on "not instructing" is identical in effect with a negative vote on "instructing." But the motion to insert the word not after do is in order, for an affirmative vote on disapproving of a certain course is not the same as a negative vote on a resolution of approval, as the latter may mean nothing but an unwillingness to express an opinion on the subject. If a resolution is pending and a member makes the motion, "I move to strike out the words  'pine benches'  and insert the words  'oak chairs,'" it is an amendment of the first degree, and no other amendment of that degree is in order until this is acted upon. All the words in italics are necessary for this form of motion, and


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Rh

) | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = One to destroy is murder by the law, And gibbets keep the lifted hand in awe; To murder thousands takes a specious name, War's glorious art, and gives immortal fame. Young—Love of Fame. Satire VII. L. 55. | seealso = (See also {{sc|Porteus)

{{Hoyt quote | num = | text = Killing no murder. Title of a tract in Harleian Miscellany, ascribed to Col. Silas Titus, recommending the murder of Cromwell.

MUSIC Music religious heat inspires, It wakes the soul, and lifts it high, And wings it with sublime desires, And fits it to bespeak the Deity. | author = Addison | work = A Song for St. Cecilia's Day. St. 4. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = Music exalts each joy, allays each grief, Expels diseases, softens every pain, Subdues the rage of poison, and the plague. John Armstrong—Art of Preserving Health. Bk. IV. L. 512. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = That rich celestial music thrilled the air From hosts on hosts of shining ones, who thronged Eastward and westward, making bright the night. Edwin Arnold—Light of Asia. Bk. IV. L. 418. Music tells no truths. Bailey—Festus. Sc. A Village Feast. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = Rugged the breast that music cannot tame. J. C. Bampfylde—Sonnet. | seealso = (See also {{sc|Bramston}}) | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = If music and sweet poetry agree. Baenfield—Sonnet. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = Gayly the troubadour Touched his guitar. Thomas Haynes Bayly—Welcome Me Home. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = I'm saddest when I sing. Thomas Haynes Bayly—You think I have a merry heart. | seealso = (See also {{sc|Aetemus Ward}}) | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = God is its author, and not man; he laid The key-note of all harmonies; he planned All perfect combinations, and he made Us so that we could hear and understand. J. G. Brainard—Music. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = The rustle of the leaves in summer's hush When wandering breezes touch them, and the sigh That filters through the forest, or the gush That swells and sinks amid the branches high,— 'Tis all the music of the wind, and we Let fancy float on this seolian breath. J. G. Brainard—Music. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = "Music hath charms to soothe the savage beast," And therefore proper at a sheriff's feast. James Bramston—jMan of Taste. First line quoted from Prior. | seealso = (See also {{sc|Bampfylde, Congeeve, Prior}}) | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = And sure there is music even in the beauty, and the silent note which Cupid strikes, far sweeter than the sound of an instrument; for there is music wherever there is harmony, order, or proportion; and thus far we may maintain the music of the spheres. Sir Thomas Browne—Religio Medici. Pt. II, Sec. IX. Use of the phrase "Music of the Spheres" given by Bishop Martin Fotherby—Athconastrix. P. 315. (Ed. 1622) Said by Bishop John Wilktns— Discovery of 'a New World. I. 42. (Ed. 1694) | seealso = (See also {{sc|Butler, Byron, Cowley, Job, Milton, Montaigne, Moore}}) | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = Yet half the beast is the great god Pan, To laugh, as he sits by the river, Making a poet out of a man. The true gods sigh for the cost and the pain— For the reed that grows never more again Jsa reed with the reeds of the river. E. B. Browning—A Musical Instrument. | author = | work = | place = | note = | topic = Music | page = 535 }}

{{Hoyt quote | num = | text = Her voice, the music of the spheres, So loud, it deafens mortals' ears; As wise philosophers have thought, And that's the cause we hear it not. Butler—Hudibras. Pt. II. Canto I. L. 617. | seealso = (See also {{sc|Browne)


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are not subject to amendment. The only amendments in order are those that change the words "pine benches" or "oak chairs" — that is, first those to be struck out, and when they are perfected, then those to be inserted. Suppose the motion to "strike out 'pine'" is pending, and it is moved to amend by adding "and nsert 'oak.'" This motion is out of order, as it changes one form of amendment to another form. It is not in order to move to strike out the word "adopt" in a motion and insert the word "reject," as "adopt" is a formal word necessary to show the kind of motion made. Practically, however, the same result may be attained by moving to postpone indefinitely — that is, to reject, the main question. The chair should never rule an amendment out of order unless he is perfectly sure that it is so. If he is in doubt he should admit the amendment, or submit the question as to its being in order to the assembly as described in 21. Every original main motion may be amended. All others may be amended, except those contained in the following list of

Motions That Cannot Be Amended. To adjourn (except when it is qualified, or when made in an assembly with no provision for a future meeting) 17 Call for the orders of the day 20 Question of order, and appeal 21

To object to consideration of a question 23

Call for a division of the assembly 25

To grant leave to withdraw a motion 27


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To grant leave to speak after indecorum 21

A request of any kind 27

To take up a question out of its proper order 22

To suspend the rules 22 To lay on the table 28 To take from the table 35 To reconsider 36 The previous question 29 To postpone indefinitely 34 To amend an amendment 33 To fill a blank 33 A nomination 66 A motion to adopt a resolution or a by-law may be amended by adding, "and that it be printed and that members be supplied with copies," or, "that they go into effect at the close of this annual meeting," or anything of a similar kind. Under each of the privileged, incidental, and subsidiary motions, it is stated whether or not the motion may be amended, and, when necessary, the way in which it may be amended is explained. An amendment to anything already adopted is not a subsidiary motion. The matter to be amended is not pending and is therefore not affected by anything done with the amendment, provided it is not adopted. Such an amendment is a main motion subject to amendments of the first and second degrees. If the motion is to strike out an entire resolution that has been adopted, it is usually called to Rescind and is explained under that head [37]. If the motion is to amend a by-law, etc., it will be found under Amendments of Constitutions, By-laws, etc. [68], Minutes are usually amended (


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) informally, the chair directing the correction to be made when suggested. But if objection is made, a formal vote is necessary for the amendment. The minutes may be corrected whenever the error is noticed regardless of the time which has elapsed; but after their adoption, when too late to reconsider the vote, they require a two-thirds vote for their amendment, unless previous notice of the proposed amendment has been given, when only a majority vote is required for its adoption, the same as with the motion to rescind [37]. This is necessary for the protection of the records, which otherwise would be subject to the risk of being tampered with by temporary majorities. The numbers prefixed to paragraphs, articles, etc., are only marginal indications and should be corrected by the secretary, if necessary, without any motion to amend. For amending a long paper, such as a series of resolutions, or a set of by-laws, which should be considered and amended by paragraph, see 24. Filling Blanks.* Propositions for filling blanks are treated somewhat differently from other amendments, in that any number of members may propose, without a second,