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146 food, and still less when either the company or the food or both were indifferent. Now, candidly, do you not think it would be better to eat your nice food and drink your nice wine at home, than in company of a number of stupid uninteresting people, whose society must be more of a bore than a pleasure?"

I could not deny that it would often be preferable to do so, "but then," I observed, "custom has reconciled us even to the infliction of stupid dinner parties, and we often partake of these feasts more as a matter of duty and to give pleasure to our entertainer, than from any real enjoyment we derive from them."

"In short," she archly rejoined, "whereas your ancient saints did penance by starving themselves in solitude, your modern sinners do penance by stuffing themselves in company. But, after all," she continued, "you must allow that our mode of being convivial is a great improvement on yours, for our festivities are never interrupted by the necessity of sitting for hours in one spot, by the side of some possibly disagreeable and uncongenial person, in order to eat without appetite more food than is good for us, with the prospect of an indigestion or at least a headache the next morning as a consequence of our excess."

Of course I pretended to be quite converted to her way of thinking, and indeed, there is in the entertainments of the Colymbians an amount of ease, refinement and grace that can seldom be found in the grosser sensual indulgences of our European festivities.

The beauty of Lily's face and form, the exquisite grace of her movements, and the charm of her sprightly conversation (which I fear I have failed to convey in the specimens I have given from memory) ere long began to make a very decided impression on

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Rh my susceptible heart. She too, I thought, regarded me with feelings beyond those of ordinary friendship. As I grew more accustomed to the life I now led, I began to reconcile myself to the idea of a life-long residence here; indeed, I saw no escape from it had I wished it; I thought my position, on the whole, would be more comfortable if I could set up a domestic establishment. The thought of having Lily to be my life's partner laid every day a stronger hold on me. Though I was thrown into the company of many beautiful and charming young ladies, who all treated me with frank familiarity, and strove, not unsuccessfully, to render my sojourn in Colymbia agreeable, I felt that there was a peculiar tenderness in Lily's behaviour towards me, and that she derived pleasure from my society and conversation.

I had almost made up my mind to ask her to be my wife, but somehow day after day went by without my being able to summon up courage to put the momentous question.

It invariably happened that when I was just on the eve of coming to the point, the refrain of a ridiculous song one of my companions in England used to sing at our convivial meetings would obtrude itself on my memory, and, in place of asking Lily to be mine, I would find myself involuntarily humming,—

which quite disconcerted me and turned me from my resolve.

As soon as I was away from her sweet companionship I felt how much I longed to call her mine, and I vowed I would pop the question the very next time I saw her; but the absurd circumstance I have

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148 mentioned always occurred to annoy and distract me from my purpose by placing the contemplated marriage with this lovely and accomplished creature in a ridiculous light.

About this time a grand shark-hunting expedition, to start from a distant part of the lagoon, was organized, which was to be followed by games and races that would occupy several days. I was invited to form one of the party, and accepted the invitation all the more readily, as I wished to ascertain precisely the state of my feelings towards Lily, and whether absence from her charming society would prove to me that these feelings were really based on such true affection as would justify me in asking her to share my lot. I had always been told by my mother that marriage without love was certain to lead to unhappiness, so I was determined I would not run the risk of marring the happiness of this beauteous and innocent creature by offering her my hand, if I could not, at the same time, offer her my whole heart.

I found, as I anticipated, that days of absence only intensified my passion. Neither the excitement of the shark-hunt, nor the amusement the games and races afforded, nor yet the bewitching manners and looks of the new fair acquaintances I made, dulled in the slightest degree the impression left on my heart by the lovely Lily. In fact, in spite of the attractions and distractions around me, I longed every day more and more to be beside my sweet girl; and towards the end of the visit I fairly yearned to be with her, in order that I might tell her how truly I loved her, and how impossible existence was without her.

Soon after my return a gyrating assembly was given by one of the principal men of the town, to which I

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Rh was invited, much to my contentment, as I was certain to meet Lily there.

When I entered the hall, I beheld the object of my affections looking more beautiful and more irresistible than ever. She was engaged in executing one of those graceful performances I have before described, with a tall and handsome youth named Phoebus, who was one of my familiar friends, but who had not accompanied us on the late hunting expedition. When the music ceased, Lily espied me and gave me such a sweet smile, that I was at her side in an instant, and engaged her for the next dance. Phoebus left us to seek another partner for himself. I gave Lily a warm pressure of the hand, which I fancied she returned with a lingering tenderness.

"You have been absent a long time," she began.

"Ah," replied I; "it has indeed seemed long to me. May I flatter myself that you have missed me a little?"

"Indeed, I have missed you a great deal," she returned with emphasis;" I wanted to ask you so many questions about your funny English ways. I am so glad you are back again."

The dear girl really looked so pleased to see me, and her large lustrous eyes seemed to me to smile so tenderly on me, that I resolved to ask her then and there to be mine. I longed to know if she had felt the same void during my absence as I had. I almost wished to hear her say that she had felt sad and melancholy while I was absent. I said with affected carelessness:—

"How have you been amusing yourself since I had last the happiness of seeing you?"

"Oh! moderately," she replied; "there was a

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150 reading the night you left, which was very well. The following day there was the periodical lecture on transcendental geography, which, you know, I make a point of attending, but which was rather dull. We had a very nice ball the night before last; and as there was nothing particular going on yesterday, Phoebus and I got married."

"Married!" I exclaimed, while I felt almost as though I had received a deadly thrust of some sharp weapon through my heart; and had I been on land I feel sure I should have fallen to the ground;—"Married! O heavens!—is it possible?—alas! for my hopes of happiness!"

"What do you mean?" she inquired, with a look of the utmost concern.

"I mean," I stammered out, hardly conscious of what I was saying, "that I loved you better than my life—that it was the dearest wish of my heart to be able to call you my wife!"

"How can that be?" she said; "you have known me all these days and never asked me to marry you, far less told me that you loved me. I could not guess your wishes, as you never expressed them, though you had every opportunity."

"And would you," I stammered out in my agitation, "would you have been mine had I asked you?"

"I don't quite understand what you mean by being yours; but," she naively said, "had you asked me to marry you, I would undoubtedly have done so at once."

The extraordinary character of the conversation did not strike me at the time. As for Lily she seemed to see no impropriety in it.

"But now," I proceeded, "I am doomed to grief and

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Rh disappointment, and must gnaw my heart in solitude and despair."

"Oh I no," she cheerfully retorted; "there is no occasion to do any thing so horrible. Very likely Phoebus and I will not suit one another; and, in that case, we can get a divorce, and then I can marry you, if you still wish it."

She said this with so much simplicity and sincerity, that I had not the heart to tell her how contrary such a proposed course of conduct was to all my ideas of what was right and proper.

Stammering out some stupid expressions of gratitude and thanks, I feigned some pressing engagement I had forgotten, and muttering an apology for my rudeness, I fled and sought the solitude of my home to collect my thoughts and recover from the shock I had received. As I retired, I marked her look of bewildered astonishment, at what, according to her notions, she must have considered my unaccountable behaviour.

Alone in my house, I had time and leisure to brood over my disappointment, and also to reflect on the strange ideas of the Colymbians with regard to marriage and the relations of the sexes. Here was a lovely and innocent girl with simple tastes and a well-cultivated mind, marrying all of a sudden a man whom she could not be said to love, evidently with the view of seeing whether they would suit one another, and so far from being sure on that subject, she seemed rather to incline to think that they would not, in which cases he would have no hesitation in discarding him and trying another. And no one seemed to think such conduct at all extraordinary or improper. We would hardly treat a partner in a

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152 waltz less ceremoniously than these Colymbians treat the partners of their domestic joys and sorrows. They marry as we try on boots in a ready-made shop. If one does not fit another may, and so they try a succession of conjugal partners, until at last they get themselves well mated.

A man or a woman who was constantly changing was considered by his or her friends as hard to please, but no one thought of attaching blame to conduct which would be deemed outrageous in my own country.

While I was cogitating over these matters and endeavouring to reconcile myself to my loss, by the reflection that perhaps Lily would have found me too unsuitable after a short trial, I received a visit from an intelligent young professor of transcendental geography of my acquaintance, with whom I was on such intimate terms that we used to be constantly popping in on one another to have a friendly chat. To him I mentioned my disappointment in the matter of Lily.

"Oh, console yourself," he said, with a smile, "there are as good fish—I mean girls—in the sea as ever came out of it. I fear I do not make a very happy adaptation of your proverb to the circumstances of our life, but you understand what I mean: you may marry any other girl you please here—almost."

"But I shall never care about marrying any other, now I have lost Lily."

"You astonish me," he replied; "there are hundreds as good-looking and as accomplished as she."

"Doubtless," I answered, "but I can only love her."

"Love!" he repeated, with an incredulous smile (for which I hated him), "how can you love a girl until you know how she will suit you morally? We

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Rh all know exactly what the lovely creatures are like physically, but it is not the mere physique we can love; you might as well say you love a picture or a statue. It is the mental disposition we love, and that we can never discover until we marry and begin to live together. A man may show the most amiable manners in public; he may be obliging, good-humoured, witty, and in every way agreeable in society; but look at him in the privacy of domestic life, he may there prove harsh, arrogant, exacting, in short everything that is detestable. Our people have no concealments to make with regard to their physical qualities; but all are deceivers, consciously or unconsciously, with regard to their moral constitution. This is a fact so generally recognised here, that no attempt is made to ascertain the moral adaptedness of couples till after they are married. If they then find themselves unsympathetic and morally unsuited to one another, we should consider it highly immoral that they should continue to live together. Our bodies are held to be so secondary in importance to our minds, that we never give them a thought in judging of our mutual adaptability. Now, the main purpose of marriage is to secure a partner with whom it would be pleasant and profitable to spend your life. The most beautiful body would not reconcile you to a thoroughly unsuitable mind; and a really congenial mind might easily be found in a body which did not display perfect symmetry of proportion and perfect beauty of features. You terrestrials know little of the mere physique of one another, as you are always enveloped in those clothes that serve to conceal your bodies and often to hide defects. Of the moral qualities of one another you can know, before marriage, just as little

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154 as we do of each other; and yet you contract indissoluble marriages, and form life-partnerships with beings who may be perfectly unsuitable, physically and morally. And then you talk of the sanctity of marriage, and consider it a heinous offence even to think of dissolving the perhaps irksome bond by which you have bound yourselves to one another. No wonder that complaints are so frequent among you of unhappy marriages, and that your satirists find a constant theme for their unpleasant wit in the miseries of married life. To us it seems extraordinary that your marriages so often turn out the reverse of what we would naturally expect them to be, and that contented and even happy couples are produced by such unlikely means."

It may easily be imagined how profoundly I was shocked at hearing such sentiments, so utterly at variance with all that I had been taught at home. But I felt some relief for the grief of my great disappointment when I reflected that, without doubt, the sentiments expressed by my transcendental friend were entertained by Lily also, and I felt it impossible that I could have led a happy life with a young creature, however charming in other respects, whose ideas were evidently so diametrically opposed to everything my education had led me to believe right and proper. I could not let him go without telling him how entirely I differed from him.

"Your notions respecting our English marriages," I said, "are almost entirely wrong. It is true that couples often find themselves but ill matched. But the knowledge that they have made a life-contract, if they have common sense and amiability, leads them to accommodate themselves to one another, to overlook

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Mackay 's Return,' 'The Song of Winter,' 'A Poem on Death,' and a 'Satire on Avarice, or the Rispond Brothers.'

He resembled Burns in two of his highest qualities—the love of nature and the naturalness of his verse. But his place among poets cannot be fairly appreciated till more of his poems have been translated.

 MACKAY, ROBERT WILLIAM (1803–1882), philosopher and scholar, born 27 May 1803 in Piccadilly, London, was only son of John Mackay, and was educated at Winchester. He matriculated at Brasenose College, Oxford, 15 Jan. 1821, graduating B.A. 1824 and M.A. 1828, and carrying off the chancellor's prize for Latin verse. On leaving Oxford he entered Lincoln's Inn in 1828, but after planning and partly writing a treatise on equity he conceived a dislike to the subject, and turned to theology and philosophy. In 1850 he published his most elaborate work, ‘The Progress of the Intellect, as exemplified in the Religious Development of the Greeks and Hebrews,’ 2 vols. 8vo. This was followed in 1854 by ‘A Sketch of the Rise and Progress of Christianity,’ and in 1863 by ‘The Tübingen School and its Antecedents: a Review of the History and Present Condition of Modern Theology.’ All are remarkable for ‘the amount of research and thought put into a narrow compass.’ Their author, as a philosopher, agreed most nearly with Kant, as a theologian he followed Baur and Strauss. His devotion to Plato found expression in two translations—‘The Sophistes of Plato, translated, with explanatory Notes and an Introduction on Ancient and Modern Sophistry,’ 1868, and ‘Plato's Meno, translated, with explanatory Notes and Introduction, and a preliminary Essay on the Moral Education of the Greeks,’ 1869. These, like his other works, show originality of thought and fine scholarship. He died 23 Feb. 1882.

 MACKELLAR, MARY (1834–1890), highland poetess, daughter of Allan Cameron, baker at Fort William, was born on 1 Oct. 1834. She married early John Mackellar, captain and joint-owner of a coasting vessel, with whom she sailed for several years, visiting many places in Europe, and being often shipwrecked. She settled in Edinburgh in 1876, shortly afterwards obtained a judicial separation from her husband, and dying on 7 Sept. 1890, was buried at Kilmallie, Argyllshire. For the last ten years of her life she tried to make a livelihood by her pen, and she was granted 60l. from the Royal Bounty Fund in 1885. Her 'Poems and Songs, Gaelic and English,' collected chiefly from newspapers and periodicals, were published at Edinburgh m 1880. The Gaelic poems show force and some fancy, but the English pieces, through which there is an undertone of sadness, are of no merit. She also wrote 'The Tourist's Handbook of Gaelic and English Phrases for the Highlands' (Edinburgh, 1880), and her translation of the queen's second series of Leaves from our Journal in the Highlands 'has been described as 'a masterpiece of forcible and idiomatic Gaelic.' A 'Guide to Lochaber' by her gives many traditions and historical incidents nowhere else recorded. She held the office of 'bard' to the Gaelic Society of Inverness, in whose 'Transactions' much of her prose, including her last work, appears. A monument is being erected to her memory at Kilmallie by public subscription.

 MACKELLAR, PATRICK (1717–1778), colonel, military engineer, belonged to an old Scottish family. In 1735 he entered the ordnance service as a clerk at Woolwich, and in 1739, having been promoted to the office of clerk of the works, was sent to Minorca, at that time a military station of equal importance with Gibraltar. His talent for architecture and military engineering gained him on 7 Dec. 1742 the warrant of practitioner engineer, and on 8 March 1743 he was promoted to be engineer extraordinary, without passing through the intermediate rank of sub-engineer. In 1751 he was promoted engineer in ordinary. With the exception of a short interval of special duty at Sheerness in 1752, he remained at Minorca until 1754, his duties consisting in perfecting the defences of Port Mahon, with the collateral work of St. Philip's Castle, and in the extension of the subterranean mine defence, and of the underground stores and magazines, designed by Brigadiers Petit and Durand.

In 1754 Mackellar was called home to join the expeditionary force to North America, and served in the ill-fated campaign under Braddock, making roads and bridges in advance of the army on the march from Alexandria in Virginia across the Alleghany mountains, through a wild and little known


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Mackellar both of attack and defence. He also made a survey of the place and the military positions in its neighbourhood, and set in hand various works to improve its condition as a commanding post. Towards the end of 1761 Mackellar was appointed chief engineer with the expedition under General Robert Monckton [q. v.], directed against Martinique in the West Indies. The expedition sailed from Barbados on 24 Dec. The first attempt to land failed, and it was not until 16 Jan. 1762 that the expedition disembarked at Point Negro, a few miles from Fort Royal, against which a siege was commenced. Mackellar conducted the siege operations, having under him a small brigade of men who had been instructed at Halifax, and were selected from the various regiments. After a troublesome siege, breaches were made and the place stormed on 4 Feb. 1762. This success was at once followed by the surrender of the whole island of Martinique, and of the other Windward West Indian islands remaining in possession of the French. A series of five plans showing the operations, drawn by Mackellar, is in the British Museum.

On 3 Jan. 1762 Mackellar was promoted lieutenant-colonel, and in May he joined off Cuba, as chief engineer, the force of the Earl of Albemarle, which was destined for an attack on the Havannah. The force landed on 7 June, and after a sharp encounter with a large body of the enemy, advanced to the siege of El Moro, a strong fort which formed one of the main defences of the harbour. The siege was conducted under every possible difficulty—no earth for trenches, no roads to bring up guns, and no water near. On landing, Mackellar improvised a small selected corps for trench work, and their services were invaluable. At this siege every engineering device to circumvent the garrison was employed, and the subterranean galleries and mines were marvels of ingenuity. On 30 July a large breach was made by mines, and the fort was then carried by storm, after an attack of forty-four days. This was followed shortly by the capitulation of the whole island, including the surrender of nine Spanish sail of the line which were in the harbour of the Havannah. Mackellar's conduct of the siege, and particularly in the reduction of El Moro Castle, showed great skill and resource, and gained him a high reputation. His share of prize-money was 564l. 14s. 6d. His journal of the siege was printed in the ‘London Gazette,’ September 1762, and plans of the operations both by sea and land, drawn by him, are in the British Museum. Although greatly exposed during the siege in directing the batteries and mines, he seemed proof against injury until near the end, when he received a dangerous wound from a musket-ball from the Moro, and in September was sent to England. Surgical skill failed to extract the bullet.

On the return of peace in 1763 and the restoration of Minorca to Great Britain, Mackellar was sent thither to take over the fortifications, guns, stores, and munitions of war from the French. This he accomplished on 4 June. On 30 Sept. he was appointed chief engineer at Minorca, with extra pay of thirty shillings a day out of the revenue of the island. He set to work to render Port Mahon impregnable and to improve the city. He constructed new outworks for the castle of St. Philip, enlarged Cala Fort, and extended the underground defences and mines. He also built barracks to afford accommodation for a full-size garrison, and executed numerous improvements both in the city and harbour.

On 29 Aug. 1777 he was promoted to the rank of director of engineers and colonel, but on 22 Oct. 1778, while full of zeal and energy and in the midst of his labours, he died at Minorca. Sixteen plans by Mackellar, dating from 1746 to 1772, relating to the defences of Minorca, Cuba, and Martinique, are in the war office. A plan of Drumsin drawn by him in 1757 when employed in Scotland, one of Quebec and the surrounding country showing the works of attack, and drawings of El Moro and the Havannah, are in the British Museum.

 MACKELVIE, WILLIAM, D.D. (1800–1863), united presbyterian divine, born in Edinburgh, 7 March 1800,was soon left fatherless, and spent his youth at Leith, where he became a draper's apprentice. A visit of the Rev. Leigh Richmond to Leith led Mackelvie to leave the established church of Scotland, with which he had been hitherto connected, to join the associate secession congregation of Kirkgate, under the Rev. Mr. Aitcnison, and to study for the ministry of that church. After the usual course at Edinburgh University and the Theological Secession Hall, Mackelvie in 1827 was licensed to preach by the fresbytery of Stirling and Falkirk. In April 1829 he was called to Balgedie, Kinrossshire, where he was ordained by the Dunfermline presbytery. He was one of the earliest promoters of the union between the secession and relief churches, which was consummated in 1847, and at the request of the united synod he drew up a narrative of


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Rh faults and to develop latent virtues, so that, after a few months, or perhaps years, of greater or less discomfort, they generally settle down into a calm and peaceful contentment; and the love of children, which with us is a master-passion, tends to endear them to one another, and to make them overlook those little incongruities and discrepancies which, without the absorbing sentiment of parental love, they might be disposed to magnify into real incompatibilities, that would render married life a purgatory. You know nothing of the power of parental love, for your attachment to children, where it does exist, seems to have no reference to the parentage of the children. I observe that you part with your own offspring to the state establishments without regret, and adopt such children as you please, though you may have had no hand in the begetting of them, and cannot claim even a blood-relationship with them."

"In this too," he replied, "I think we have the advantage of you. Your own children are not necessarily loveable, though they are of your own blood. They may be ugly, disagreeable, disobedient and perverse. They may be so numerous as to be a serious burden upon you. And yet you are bound by law and by custom to love, cherish and provide for them all; to clothe, feed and educate them, though they may annoy and vex you every day of your life, and render your life miserable by their outrageous conduct. You have an idea that your children ought to love you, and pretend to consider it unnatural when they do not. But we do not see things in this light. Our children owe us no love for the mere fact that we are their parents. If we stand in the way of their advancement, if we prevent them obtaining the food and education

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156 they require, they will certainly hate us. If a poor man has a large family, and from some sentimental feeling which he calls parental love, insists on keeping all the children at home with him, subjecting them to constant privations, and stinting their education by reason of his poverty, instead of sending them to the national institutions, where they would be well fed, well educated, and fitted for a useful and honourable career, can you affirm that this man does his duty by his children? Can you contend that to the parental sentiment must be sacrificed the whole future fortune of the children? We think quite otherwise here, and consider ourselves bound to stifle the parental sentiment if it militates against the well-being of our children. Thus, it is contrary to that well-being that uncongenial parents and children should live together, and it is prejudicial to both parents and children that a man with small means should attempt to bring up a large family. The parents are racked with anxiety, and the children are deprived of what they have a right to, sufficient food and a good education. On these principles we act. If our children are disagreeable or too numerous, we send them, or as many of them as we please, to the national educational institutions. We may, of course, retain as many as we please with us, and may even keep at home a far more numerous family than we have means to support. But though there is no law against this, the opinion of society is so opposed to such a selfish proceeding, that few would dare to brave the censure of their fellow-citizens by adopting a course so detrimental to the true interests of their families. If we have no children, or do not feel pleasure in those we have, and still wish to have children, we can select such as we

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Rh country to Fort Du Quesne, at the junction of the Ohio and Monongahela rivers. The army was surprised by the French and their Indian allies on 11 July and nearly cut to pieces. Mackellar was severely wounded, and lost his horse and baggage, for which he eventually received 183l. as compensation.

In the spring of 1756 he was made chief engineer of the frontier forts, and was engaged in the construction of two new forts to supersede those existing at Ontario and Oswego when, in August, the enemy's appearance compelled the British troops to retire into the old forts. These Mackellar put into repair as rapidly as possible, and conducted the defence with ability. The siege of Ontario was short and decisive; the old walls broke up at every blow from a missile. The garrison abandoned the work, and crossing the water pushed into the scarcely tenable fort of Oswego. Here again Mackellar did his best, but the garrison was forced to capitulate, and Mackellar became a prisoner of war. He was taken to Quebec, and thence to Montreal. Although kept in somewhat close restraint, he managed to learn many useful particulars about the places which he was afterwards to assault. On the exchange of prisoners in 1757 he returned home, and was employed in repairing the castles, forts, and batteries in Scotland. On 14 May 1757 he was commissioned captain in the army in addition to his ordnance rank of engineer, and on 4 Jan. 1758 he was promoted sub-director and major. Mackellar was second engineer, Bastide being the chief, in the expedition under Jeffrey, afterwards baron Amherst [q. v.], for the reduction of Louisburg, which left Halifax on 28 May 1758. They arrived at Cape Breton on 2 June, and disembarked successfully on the 8th in the face of an obstinate resistance. Lighthouse Point was seized on the 12th. The camp was entrenched and ground broken against the fortress of Louisburg by Mackellar the same night. In one of the sorties Bastide, who had been wounded the previous day, was taken prisoner, and Mackellar assumed the chief conduct of the operation. The English fire soon became so hot that three of the largest of the enemy's ships were set ablaze, the approaches were driven closer and lodgments formed in the advanced works, while the citadel was in flames. On 27 July the garrison (6,537 strong), without awaiting the assault, laid down their arms. With the capture of Louisburg the whole island of Cape Breton fell to the British, whose loss was only 523 killed and wounded. Wolfe, who was present as brigadier-general, abused the chief engineer for taking so long over the business, but the success of the undertaking with so small a loss was a laurel for Mackellar.

On 13 May 1759 Wolfe, who had been appointed to the supreme command of the land forces in North America, sailed for the St. Lawrence, and took Mackellar as his chief engineer. The expedition arrived at the island of Orleans, opposite Quebec, on 26 June. Mackellar threw up batteries both on the west front of the island and also at Point Levi, and on 10 July opened fire on both the upper and lower towns of Quebec. The lower town was soon reduced to ruins, but little impression was made on the upper, and Wolfe, growing impatient, made an attack in force from Montmorency on 31 July, during which Mackellar was severely wounded. The attempt failed, and Mackellar, notwithstanding his wound, continued to direct the siege operations. Wolfe was eager to storm, but was dissuaded by Mackellar, who knew from observations, made when a prisoner, the many obstacles that must interpose between the assault on the walls and the capture of the citadel. On 13 Sept. Wolfe attacked the city from above, and Mackellar was with him when he fell on the heights of Abraham. The city still held out, and Mackellar broke ground for a regular attack from the favourable position gained by the British. On 17 Sept. the French capitulated. A journal of the expedition signed ‘P. M.,’ and written it is believed by Mackellar, is printed in the ‘Corps Papers of the Royal Engineers,’ 1847, contributed by Lieutenant-general G. G. Lewis [q. v.], by whom, however, it is wrongly attributed to Major James Moncrieff [q. v.] of the engineers, who was not commissioned until 1762. Mackellar remained as chief engineer with Brigadier-general James Murray (1720–1794) [q. v.], who took command of the city, and during the autumn and spring he strengthened the fortifications. In April 1760 the French, ten thousand strong, advanced on Quebec. Murray met them at Sillery, with Mackellar in command of his artillery. Murray was defeated and driven back to Quebec, and Mackellar was dangerously wounded. The French besieged Quebec, and Mackellar, as soon as he was convalescent, directed the defence until the advance of the British fleet up the St. Lawrence caused the siege to be raised. Mackellar took part in the various services undertaken this year to complete the conquest of Canada, ending with the capture of Montreal. He then accompanied the army to Halifax, Nova Scotia, which had become a large depôt and arsenal. On 24 Nov. 1760 he was appointed chief engineer at Halifax, and while at that station he was indefatigable in instructing the troops in siege operations,


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Rh think we can love and of whom we may be proud. Why should we make ourselves wretched with uncongenial children, whom we never could bring up well, if they made themselves disagreeable to us? It is mere selfishness to love a thing because it is our own; the true philosophy is to love what is loveable."

I felt it was no use protracting this discussion with one from whose very principles I must dissent. So I gave him my hand, thanked him for his visit, and said:—

"You have indeed comforted me in my affliction and reconciled me to my loss of Lily; not by converting me to your views, but by showing me the incompatibility of the customs of your country and the modes of thought of your people with those I have been brought up in and of which I cannot divest myself. I feel I am only outwardly a Colymbian, and I fear I shall never cease to be an Englishman at heart."

He took his leave with an expression of regret that I was unable to see the superiority of the Colymbian customs in regard to marriage and children; and he hoped that a longer residence would enable me to get rid of what he termed my irrational English prejudices, which he asserted with solemn gravity were far from being in accord with the perfect life of the unknown people, or in unison with the wishes of their ruler.

I could not refrain from saying that I had read all the old books and had been unable to discover in them a word on the subject of marriage or parental affection.

On which he shook his head, and said with solemn emphasis:—"My dear young friend, I fear you have

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text: Dictionary of National Biography, 1885-1900/Mackellar, Patrick


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


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


text: Dictionary of National Biography, 1885-1900/King, Humphrey


text: Dictionary of National Biography, 1885-1900/Marston, John (1575?-1634)


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158 not read the books in a right spirit. Unless the mind is penetrated with transcendentalism, the language of the books cannot be comprehended."

There was no answer to this, for I could not say that my mind was in a transcendental state, as I did not in fact know what that phrase implied and had never yet been able to obtain an explanation of it. So I wished him again good night and went to bed.

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HE Colymbians do not bestow permanent and indelible names on their infants as we do. Every person on coming of age selects the name which pleases himself best. Up to that time the young people go by pet names, such as Dick, Tom, Harry, Molly, Betty, Madge, or some other familiar and endearing appellation, that is not intended to be the permanent one. All come of age when twenty years old, if they have not earned their majority sooner. The age of twenty is selected on physiological grounds. Thus, the natural duration of man's life is held to be one hundred years, divided into five periods of twenty years each. At the end of the first period he is considered to have arrived at maturity, and to be fit for holding office under Government. At the end of the next period, when forty years of age, he is thought to have attained the utmost perfection of development. During the third period, that is from forty to sixty, he is considered to remain at his full vigour of mind and body. From sixty to eighty he is said to decline slowly, and the last period witnesses a more complete failure of his faculties, during which he is exempted from the occupations and labours of life,

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160 and receives a pension from the state, if he have no private fortune, to allow him the repose his failing powers require.

Up to eighty years of age, he is still considered fit for work and may be employed in a post under Government. But at eighty he is compelled to give up his place or office and to go on the retired list, in order to make room for younger and more vigorous men.

The two periods of twenty and eighty are celebrated by rejoicings and festivals, more or less imposing according to the social status of the individual. At the former period, he is congratulated on becoming fit for public life, at the latter period he is again congratulated on gaining exemption from work.

He may anticipate his majority by a year or two, by passing a rigorous examination in hieroglyphics; by making some scientific discovery; by inventing some ingenious machine; by executing some great work of art, or by showing a certain proficiency in musical oratory.

On attaining his majority by the lapse of the required number of years, or in any of the ways adverted to, he has to appear before a magistrate, and assume the name he is thenceforth to bear.

Under this system it is impossible that any one can have a name he dislikes, as he might easily have, if his name were bestowed on him in his infancy by others. The same rule is applied to the female portion of the community; and they too can anticipate their majority in the same way as the males, though this very rarely, if ever, happens.

The names selected by the young men are usually those of some heroes of antiquity, or of some

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Rh historical characters. But they often prefer to pay some living or deceased friend a compliment by assuming his name; and sometimes they will retain the pet name by which they had hitherto been called. This is particularly the case with the young ladies, who frequently elect to retain the trivial name their loving parents had bestowed on them, rather than take any new name. Thus there are lots of Pollys, Jennys, Millys, and such like. If they dislike their childish name, or think that it is not sufficiently pretty, they often take the name of some terrestrial flower they know or have read of, which strikes their fancy, as Lily, Rose, Daisy, and so on. Occasionally they select the name of some interesting character of romance or history. The names of Shakspeare's heroines are much affected by them. They have better sense than to select the name of some moral quality, such as Patience, Mercy, Charity, which fond parents in England sometimes inflict on their daughters.

Thus it happens that one seldom meets with ugly names among the Colymbians, for, though parents or guardians sometimes do not scruple to give their children and wards most unæsthetic names, it is very unlikely that any one will give himself a name that might excite ridicule or contempt.

The Colymbians rightly consider that there is a great deal in a name, and that one's future career is often made or marred by an appropriate or an injudicious name. Hence they hold that no one has a right to bestow a name on another without his consent, and they attach great importance to allowing a perfect liberty of choice to all on arriving at years of discretion.

The selection of a name is with some a most important event, and as the time approached for doing so, 5em

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text:
User talk:~riley

Jeepday (talk) 12:09, 21 January 2013 (UTC)

title: User talk:~riley


text:
The New International Encyclopædia/Swainson, William

SWAIN'SON, (1789-1855). An English naturalist, born in Liverpool. He traveled in South America, and on his return to England began the publication of works on natural history. In 1841 he emigrated to New Zealand, where he became Attorney-General. Important among his works are: Zoölogical Illustrations (1820-23; 1829-33); Exotic Conchology (1821-22); Ornithological Drawings (1834-41); Birds of Western Africa (1837); The Naturalist's Guide, etc. (1840).


text:
The New International Encyclopædia/Swain, Joseph

SWAIN, (1857—). An American educator, born at Pendleton, Ind. He graduated at Indiana University in 1883; studied in the University of Edinburgh, and with the astronomer royal of Scotland in 1885-86; was professor of mathematics in his alma mater from 1886 till 1891; and in the latter year was called as professor of mathematics to Leland Stanford University. Two years afterwards he returned to Indiana University as president, and remained in that position until 1902, when he accepted the presidency of Swarthmore College in Pennsylvania.


text:
The New International Encyclopædia/Swain, George Fillmore

SWAIN, (1857—). An American civil engineer. He was born in San Francisco and was educated at the Massachusetts Institute of Technology, where he graduated in 1877. He then studied three years in the Government engineering school at Berlin, Germany. Upon his return he settled in Boston, where in 1887 he became professor of civil engineering at the Institute of Technology, and engineer to the Massachusetts Railroad Commission. In 1894 he was also made a member of the Boston Transit Commission. His most important publication is a “Report on the Water Power of the Atlantic Watershed” (vol. xvii. of Tenth United States Census).


text:
The New International Encyclopædia/Swain, Charles

SWAIN, (1801-74). An English writer known as ‘the Manchester poet.’ He was born in Manchester, and lived all his life in England. For fourteen years he was a clerk in the dye house of his uncle; he afterwards carried on a business in engraving and lithographing. Between 1827 and 1867 he published several volumes of verse, among which are Dryburgh Abbey (1832), an elegy on Sir Walter Scott; English Melodies (1849); and the more ambitious The Mind and Other Poems (1832). Several of his songs, which have been set to music, are well known, as “Somebody's Waiting for Somebody” and “Tapping at the Window.” Consult the edition of his poems, with portrait and introduction by C. C. Smith (Boston, 1857).


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The opinion of the court of appeals (R. 135–145) is reported at 288 F. 2d 366. The judgment of the court of appeals was entered on March 10, 1961 (R. 146). A petition for rehearing was denied on April 12, 1961 (R. 146). The petition for a writ of certiorari was filed on May 5, 1961, and was granted on October 9, 1961 (R. 147). The jurisdiction of this Court rests on 28 U.S.C. 1254(1).


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 * 1) Whether the arrests of petitioners were based on probable cause and therefore lawful.
 * 2) Whether petitioners' confessions, and the narcotics obtained as the result of one petitioner's statement, were admissible even if petitioners' arrests were invalid.
 * 3) Whether petitioners' confessions were sufficiently corroborated.

Section 7607 of Title 26 U.S.C. provides:


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Petitioners were convicted in the United States District Court for the Northern District of California (a jury having been waived) of concealment and transportation of illegally imported heroin, in violation of 21 U.S.C. 174 (R. 4–5, 124, 126). Petitioner James Wah Toy was sentenced to imprisonment for five years (R. 126), and petitioner Wong Sun, as a second offender, to imprisonment for 10 years (R. 121, 124).

The issues in this Court relate primarily to the trial court's refusal to exclude evidence as to statements made by petitioner Toy at the time of, and after, his arrest, narcotics found by the federal agents at the home of a third party (Johnny Yee) after they had arrested Toy, and formal confessions made by petitioners Toy and Wong Sun some days later, after they had been arraigned. Petitioners objected at the trial to the admission of this evidence (R. 31 ff., 48–50, 57–62, 64, 69, 72-73, 74, 77, 91, 100 ff.).

Between 5:30 and 6:00 o'clock on the morning of June 4, 1959, one Hom Way told federal narcotics agent William Wong that he had purchased an ounce of heroin the night before from a person known as "Blackie Toy" who operated a laundry on Leavenworth Street in San Francisco (R. 54–55). Hom Way had been arrested at about 2:00 o'clock that morning (June 4), in possession of narcotics (R.


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 55–56). The agent had known Hom Way about six weeks. When questioned at the trial as to whether Hom Way was a reliable informer, the agent replied, "I believe so, yes sir" (R. 54), and repeated, on cross-examination, "I believe he would be reliable" (R. 55). The agent did not have knowledge as to whether Hom Way had been arrested or convicted for any previous narcotics violations (R. 56). This was the first information the agent had received from Hom Way (R. 56).

At about 6:30 a.m. on June 4, federal agent Alton Wong went to the door of petitioner'spetitioner [sic] Toy's laundry on Leavenworth Street (R. 33, 51). In June at this time of morning it was no longer dark (R. 34; and see R. 58). The federal agent went to the door alone, rang the bell, and knocked (R. 34, 36, 51). When petitioner Toy opened the door, the agent said he wanted some laundry. Toy replied that he did not open until 8, and to return then (R. 51). The agent then exhibited his official badge and informed Toy, "I am a federal narcotics agent" (R. 51–52). Toy slammed the door and the agent, seeing through the glass of the door that Toy was running toward the rear of the premises, forced the door open, and pursued Toy (R. 52). The officer, running after Toy, repeated, "I am a narcotics treasury agent," but Toy ran on into the living quarters to the rear (R. 52–53). Toy ran over the top of the bed where his wife and child were sleeping, in order to reach a nightstand


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 drawer, "and reached in for something in there" (R. 52). The agent, following Toy over the bed, seized him, drew his gun and told Toy he was under arrest. The nightstand drawer was empty. Toy was handcuffed and the agent then searched the premises (R. 52, 66). Nothing was found at the time (R. 52, 65–66).

One of the agents informed Toy of Hom Way's statement that Toy had sold him narcotics. Toy denied that he had sold narcotics but added that he knew someone who had—one "Johnny"—at whose house he had been the night before (R. 63). Toy gave full details as to the appearance of the house, the location of "Johnny's" bedroom there, the amount of heroin in his possession, and the usual practice of "Johnny's" mother to come out of the house at about 8 a.m. with the children going to school. The agents immediately left for the house, arriving there at about 8 a.m. on June 4, at which time a youngster and a man and a woman came out. One of the agents showed his badge to the woman and asked whether Johnny was at home. She replied, "Yes, he is upstairs." In the bedroom, Yee surrendered about an ounce of heroin, without a search (R. 19, 63–64, 66). He was arrested (R. 20).

At the office of the Bureau of Narcotics—"within an hour or so" on June 4 (R. 90, 94)—Yee informed the agents that the heroin had been brought to his house by petitioner Toy and a person known to him


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 only as "Sea Dog" (R. 90, 94). Petitioner Toy informed the agents, at about 10:30 a.m., that the person known to Yee as "Sea Dog" was petitioner Wong Sun. Toy went with the agents to identify Wong Sun's residence (R. 90, 95).

At Wong Sun's residence, at a little after 11 a.m. on June 4, agent Alton Wong rang the door bell. When a lady opened the door, he entered and asked for Mr. Wong. At this time Betty Wong appeared. Agent Wong identified himself as from the Federal Bureau of Narcotics. Agent Casey, who followed him in, addressed Mrs. Wong as "Betty" and asked her where Wong Sun was. She informed him that he was in the back room sleeping. Agent Casey then arrested Wong Sun, and the premises were searched (R. 96–99).

Although the record does not contain the information, the fact is that petitioner Toy was arraigned before the Commissioner on June 4 and petitioner Wong Sun on June 5. Each was released on his own recognizance. On June 9, each of the petitioners was interviewed separately by an agent at the Bureau offices. Each was told of his right not to answer


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 questions or make a statement, of his right to counsel, and of the fact that any statement made could be used against him. Each was told that the agent could make no promises of immunity or leniency. Thereafter each discussed details of narcotics transactions, first by answering questions, then by repeating details to the agent who took down the answers in rough form and subsequently prepared a typewritten statement. Each statement was shown to the respective petitioner, read to him in English, and interpreted in Chinese. Each petitioner acknowledged his statement to be correct but refused to sign it, because of the absence of assurance that the other had also signed (R. 66–72). The statements were admitted into evidence over objection (R. 106).

1. Wong Sun's confession (Exhibit 4).

Wong Sun's confession included the following statements: He met Toy at Marysville, California, about the middle of March 1959, during a Chinese celebration. They returned to San Francisco together and discussed the possible sale of heroin. Wong Sun informed Toy that he could get a "piece" from one "Bill" for $450.

Shortly thereafter, Toy told Wong Sun he wanted a "piece" for "Johnny." Wong Sun knew Johnny only through Toy. Wong Sun obtained the heroin, and did so again on about 7 or 8 additional occasions, on one of which the heroin was for someone other than Johnny.

On several occasions after obtaining the first "piece," Wong Sun drove with Toy to Johnny's house, 606–11th Avenue, and Toy would deliver the


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 heroin to Johnny and the three would smoke some of it. Johnny paid Toy $600 for each "piece." On three other occasions Wong Sun and Toy went to Johnny's without bringing heroin, and smoked heroin there and obtained some for themselves.

About four days before the arrest [the arrest was on June 4], Toy gave Wong Sun $450 and, after the latter obtained the heroin, Toy phoned Johnny, and Toy and Wong Sun drove to Johnny's house at about midnight. Toy gave the heroin to Johnny in a rubber contraceptive enclosed in a small brown bag.

On the night before the arrest, before 11 p.m., Toy phoned Johnny, and the two went to Johnny's to smoke heroin for half an hour. They also obtained one "paper" of heroin for their own use later.

2. Toy's confession (Exhibit 3).

Toy's confession included the following statements: He first met Wong Sun, known to him as "Sea Dog," about three months before June 5, 1959, at Marysville, California, during a Chinese holiday. Toy drove him back to San Francisco.

Sometime during April or May of 1959, Wong Sun asked Toy to drive him to the home of Johnny Yee, at 11th and Balboa Streets, first asking Toy to phone Johnny that they were coming. Wong Sun there delivered to Johnny a paper package of heroin and, upon Toy's request, gave him some which he


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 smoked. Wong Sun paid Toy $15 for driving him to Johnny's.

Toy drove Wong Sun to Johnny's "about 5 times altogether," each time receiving $10 or $15 and Toy was also given enough heroin for 3 or 4 cigarettes. The last occasion for driving Wong Sun was "last Tuesday, May 26." Thereafter, on Wednesday night, June 3, at about 10 p.m., Toy phoned Johnny that he didn't "have anything" and was coming out "pretty soon." When he arrived, Johnny gave him—"just out of friendship"—a paper of heroin sufficient for 5 or 6 cigarettes, without any money given or asked. "He has given me heroin like this quite a few times. I don't remember how many times."

Toy had "known Hom Wei [the original informer, supra, pp. 3–4] about 2 or 3 years but I have never dealt in narcotics with him. * * * The only connection I now have is Johnny Yee."

Johnny Yee, called as a government witness, proved recalcitrant. He admitted, however, that he knew both Wong Sun and Toy, and identified both in the courtroom (R. 20). He stated that he had known Toy since 1951 or l952 and had known Wong Sun that year, 1959 (R. 20). He confirmed Wong Sun's nickname of "Sea Dog" (R. 20). He stated that, a month before his arrest, Toy, with wife and


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 children, had visited his home (R. 20–22). He admitted that he had made a sworn statement to the officers that on Monday, June 1, prior to midnight, Wong Sun and Toy had come to his house, and that on Wednesday evening, June 3, Toy had phoned before 11 p.m. that he would be by, and that he and Wong Sun had come up between 11:00 p.m. and midnight (R. 30). He stated, however, that he had lied in making the latter statements (R. 30). The government thereupon dismissed the witness.

The court of appeals, one judge dissenting, affirmed the convictions. The court concluded that the arrest of each petitioner had been based on information not known to be reliable, and hence was without probable cause, but held that the illegality of the arrests did not render inadmissible the voluntary confessions, or preclude the agents from using information obtained from the pre-confession statements as leads for tracking down the criminals (R. 135–145).

The court of appeals considered petitioners' arrests to have been based on insufficient probable cause but held, in effect, that there was nothing in the arrest of petitioner Toy which required him to accuse Johnny Yee and to send the narcotics agents to Yee's house, and hence that the surrender of the narcotics by Yee could not be deemed the fruit of the arrest of Toy. Similarly, the unanticipated statements by Yee, which


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 led on from him to petitioner Wong Sun and unexpectedly circled back to involve Toy as well, were not the fruit of the arrest of Toy. And the later confessions of Toy and Wong Sun, yet another stage removed, were likewise considered by the court of appeals not to be fruits of the arrests of either Toy or Wong Sun.

The government agrees with the court of appeals that the evidence introduced at the trial was not the product of the arrests. However, it is the government's initial position that that issue need not be reached because the judgments below may be sustained upon the ground that the arrests were lawful emergency arrests based upon probable cause.

Petitioners were lawfully arrested on probable cause.

A. In ruling that there was a lack of probable cause, the court of appeals unduly emphasized what is only one element in the determination of reliability—the receipt of prior information from an informant. Information may be given under such circumstances that it has the badge of reliability even if the informant has not previously had occasion to furnish information to the officers. The question is always whether, under the particular circumstances presented by the record, the officers acted reasonably. There is no mechanical rule forbidding reliance on information from an informant who has not previously been tested.


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 B. At least two elements were operative in the arrest of Toy, and the government need not and does not attempt to rely on either element alone to show that the officers acted reasonably.

1. The first factor was the statement of Hom Way to the agents that he had obtained an ounce of heroin the night before from Toy. The agent had known Hom Way for six weeks and therefore had a basis for judging whether, under arrest, he would be likely to tell the truth or attempt to throw the agents off the scent. An investigator must have leeway to make an informed judgment as to the character of the persons with whom he must deal. Hom Way's designation of petitioner was not vitiated by the fact that Hom Way was himself under arrest; indeed, his statements, which were quite detailed, could be viewed with more confidence since he must have known that he could and would be confronted with any inconsistencies that might develop.

2. The second element is what occurred at Toy's place. The officers did not go to the door in a group, as would have been the case had an arrest been intended on the basis of Hom Way's statement alone; one officer went to investigate further by interviewing Toy, while the others remained nearby. The hour was early, 6:30 a.m., but it was daylight, not darkness. Moreover, the officers were on the trail of heroin, which is easily concealed or destroyed; word of Hom Way's arrest or even of his disappearance from his ordinary haunts could travel quickly.

The officer knocked, and when Toy opened the door, the agent began by asking for laundry. When Toy


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 told the agent to return for his laundry later, the latter merely showed his badge and stated, "I am a federal narcotics agent." He said nothing about an arrest. There then occurred the action by Toy that forced upon the officer a split-second decision and demonstrated to him that immediate arrest was necessary. Toy slammed the door shut and fled toward the rear of the laundry. If he had narcotics on the premises he could conceal or destroy them in an instant. The door was not slammed when the man at the door inquired for laundry; it was slammed when the officer's badge was exhibited. The officer then had cause to believe Toy guilty, for an unexplained flight from an officer is strong indication of guilt.

3. Petitioners contend that the absence of affirmative evidence that the officer stated his purpose to arrest Toy brings the case within the prohibition of Miller v. United States, 357 U.S. 301. The language of Miller itself answers this contention. This Court there noted decisions (p. 309) "holding that justification for noncompliance [with the requirement of statement of purpose] exists in exigent circumstances, as, for example, when the officers may in good faith believe * * * that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6."

C. In the case of the arrest of Wong Sun, probable cause for arrest was provided by the combined, consistent statements of Yee and petitioner Toy. Yee's accusation of "Sea Dog" (Wong Sun) as the supplier (with Toy) of his narcotics was significantly corroborated before the officers went to arrest Wong


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 Sun. Yee's statement that he had been furnished heroin was substantiated by his actual possession of the drug. His surrender of the narcotics to the officers, without a search, was not attended by any unlawful conduct by the officers. His statement that Toy had been one of the two who furnished the heroin was substantiated by Toy's detailed knowledge of Yee's possession of the narcotics, as revealed in Toy's earlier statement to the officers. Yee's tie-in of "Sea Dog" with Toy dove-tailed immediately thereafter with Toy's knowledge of the real name of "Sea Dog" Wong Sun and Toy's knowledge of where Wong Sun lived.

On the assumption that the arrests were illegal, petitioners contend that all the evidence obtained after those arrests, must be deemed the "fruits of the poisonous tree" and therefore inadmissible. While it is the rule that, if the evidence sought to be introduced is the true product of illegal government action it is excludable, it is not the rule that the mere fact that there has been illegal government action at some prior point is sufficient. If the evidence is attributable to an intervening act of free will on the part of the defendant and not to the illegal government action, the evidence is admissible. Whether evidence can be said to be the result of the illegal action or of an independent act of free will requires a judgment based on the precise facts of a given case. In particular, the question of whether a statement made at the time of illegal entry should be deemed admissible


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 cannot be settled by any fixed rule but must essentially represent a judgment, based on all the circumstances, as to whether the illegal government action or the voluntary act of the defendant is the primary motivating force behind the evidence. In the present case, petitioners' statements to the officers were not the products of illegal arrests or entries, but of their own voluntary, deliberate decision to speak.

Nueslein v. District of Columbia, 115 F. 2d 690 (C.A.D.C.), held that, even though nothing was found after an illegal entry, certain statements made during the illegal entry were the result of the illegality and therefore inadmissible. Officers investigating only a misdemeanor, an accident in which a taxicab had struck a parked car, went to the home of the taxicab owner and entered the home without a warrant and without permission of the owner. The owner admitted that he had been driving the taxi and, since he appeared to the officers to be drunk, the officers placed him under arrest. The decision of the District of Columbia Circuit, in relating the admissions to the illegal entry when the illegal entry in no sense compelled the owner to talk, admittedly goes far, but it does hot go as far as would be necessary to go in the instant case of investigation of a narcotics felony. In Nueslein the admissions made by the taxicab owner were admissions of guilt as to the very act which prompted the officers to make the illegal entry, and those


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 were made by an intoxicated man. Here, petitioner Toy, although knowing that the officers had found nothing of what they sought, deliberately and voluntarily sent them to Johnny Yee in order to divert suspicion from himself. It was Hom Way's accusation of Toy which caused Toy to send the officers to Yee's house, and Hom Way's accusation in no way stemmed from the illegal entry. Toy merely saw an opportunity to sidetrack the officers from Hom Way's accusation, and consciously made use of that opportunity. In short, he would now have the Court bar evidence that he himself deliberately uncovered.

Petitioners' confessions were corroborated by substantial additional evidence, and the confessions disclosed such possession of narcotics as served to raise the statutory presumption of guilty knowledge.

A. Corroboration of a confession requires only evidence that will tend to establish its trustworthiness, and does not demand evidence sufficient to establish the corpus delicti independently. The special problem with respect to reliance on a confession arises out of concern whether a particular confession may be the product of "the aberration or weakness of the accused under the strain of suspicion" (Opper v. United States, 348 U.S. 84, 90). But if facts are shown, by evidence other than the confession, demonstrating that the confession is not a fantasy warped by the aberration or weakness of the accused, then the finder of fact may properly attribute the confession to the familiar motivation of an accused


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 who realizes that he has been caught and may as well tell the truth.

B. In the case of Wong Sun's confession, the trial judge could properly conclude that his chronicle, from the time of his first acquaintance with Toy, in March 1959, through his series of visits with Toy at Yee's house, terminating in the visits on or about June 1 and 3, was sufficiently corroborated to be accepted. The critical portion of the confession, i.e., Wong Sun's statement that he transported an ounce of heroin from his source of supply to Toy on the night of May 31, 1959, and that he and Toy then transported the heroin to Yee at Yee's house at about midnight, is firmly supported by the actual possession of 27 grams of the heroin by Yee at Yee's house on the morning of June 4. The absence of a part of the ounce, and the division of the heroin into several containers after being brought to Yee's house in one container, substantiate the further portion of Wong Sun's confession that he and Toy had gone to Yee's house again on the night of June 3, smoked heroin, and taken one "paper" for their later use. In addition, there was corroboration of parts of the confession in Agent Nickoloff's testimony that Toy had admitted to him on June 4 that he had been at Yee's house the night before, as well as in the separate testimony of Yee showing that he knew Wong Sun.

C. Toy's confession, unlike that of Wong Sun, shows an effort on his part to withhold some of the facts. Like the accused in Opper v. United States, supra, 348 U.S. 84, he obviously sought to admit only what he thought could be proved against him by other


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 evidence. But what Toy stated in his confession was sufficiently corroborated to warrant consideration of his statement. When he confessed to delivery of heroin at Yee's house, he was not spinning a fantasy—the 27 grams of heroin at Yee's house on the morning of June 4 corroborated this admission. Additionally, Toy admitted a series of visits to Yee's house. This was corroborated in Toy's very detailed familiarity with the house, as disclosed in the testimony of Agent Nickoloff. The statement in Toy's confession specifically placing him at Yee's house on the night of June 3 was further substantiated in Agent Nickoloff's testimony that Toy admitted to him on June 4 that he had been at Yee's house the night before. There were also other elements of corroboration.

Petitioners argue that the trial court erred in admitting several items of evidence—petitioner Toy's statements to the federal agent (at the time of and after his arrest) which led the agents to Johnny Yee and to petitioner Wong Sun, the narcotics found at Yee's house, and the formal confessions made by petitioners some days later, subsequent to their arraignment—because all of this evidence resulted from the petitioners' arrests which are claimed to have been unlawful. Although holding that the arrests of both petitioners were invalid as not based on probable cause, the court of appeals sustained the convictions on the ground that the invalidity of the arrests did not void the confessions by petitioners nor the statement by petitioner Toy which led the agents to recover narcotics from Yee. In effect, the court


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 held that there was nothing in the fact of petitioner Toy's arrest which required him to send the agents to Yee and hence that the finding of narcotics at Yee's house could not be deemed the fruits of the illegal arrest. Similarly, this new information, which led to proof against petitioner Wong Sun and circled back to Toy as well, was held not to be the fruit of the arrest of Toy.

The government agrees with the court of appeals that the evidence introduced at the trial was detached from and not the product of the arrests. However, as pointed out in the government's brief in opposition, it is our initial position that that issue need not be reached because we believe that the judgments below may be sustained upon the ground that the arrests were lawful emergency arrests based upon probable cause. We discuss first our reasons for believing that the arrests were lawful, before turning to the grounds relied upon by the court of appeals.

It is the position of the government that, in the circumstances of this case, the petitioners were lawfully arrested. In the case of Toy, reasonable grounds for an immediate arrest without warrant arose from the combined impact of two elements: first, the specific designation of Toy as a source of supply of narcotics by a man deemed reliable by a federal narcotics agent, and, second, the flight by Toy when confronted


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 with a narcotics agent's badge and identification. The narcotics agent did not arrest Toy upon the word of the informer (Hom Way) alone. He first went to Toy's door for further investigation and sought to engage Toy in conversation under guise of seeking laundry and, then, by making known his identity as a federal narcotics agent. At this point Toy took flight, and the agent pursued and arrested him.

In the arrest of Wong Sun, the identification was the product of the combined information from both Yee and Toy; the former was the authentic possessor of the heroin and the latter the supplier of exact and correct information as to the location of the heroin and of Wong Sun.

A. UNDER COMMON LAW AND 20 U.S.C. 7607, ARRESTS MAY BE MADE WITHOUT WARRANT UPON PROBABLE CAUSE OR UPON "REASONABLE GROUNDS TO BELIEVE THAT THE PERSON TO BE ARRESTED HAS COMMITTED" A NARCOTICS FELONY

Probable cause for arrest under the Fourth Amendment and the specific statutory "reasonable grounds" upon which federal narcoticnarcotics [sic] agents may arrest without a warrant "are substantial equivalents of the same meaning". Draper v. United States, 358 U.S. 307, 310. The broad requirements of probable cause, to be applied to the specific facts of cases as they arise, have been stated by this Court as follows:

In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is


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 correlative to what must be proved.


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 To this may be added the further illumination of observations in the courts of appeals. In Christensen v. United States, 259 F. 2d 192, 193, the Court of Appeals for the District of Columbia Circuit said:

And in Bell v. United States, 254 F. 2d 82, 85 (C.A.D.C.), Judge Prettyman noted that suspicion on reasonable grounds is not the "mere suspicion" denounced in Mallory v. United States, 354 U.S. 449, 454, and stated (254 F. 2d at 85-86):

[Officers] do not schedule their steps in the calm of an office. Things just happen. They are required as a matter of duty to act as reasonably prudent men would act under the circumstances as those circumstances happen. * * *

[The] action [of an officer experienced in the narcotics traffic] is not measured by what might be probable cause to an untrained civilian passerby. When a peace officer makes the arrest, the standard means a reasonable, cautious and prudent peace officer. The question


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 is what constituted probable cause in the eyes of a reasonable, cautious and prudent peace officer under the circumstances of the moment.

B. THE COMBINATION OF THE NAMING OF PETITIONER TOY BY INFORMER HOM WAY AS HIS SOURCE OF SUPPLY OF NARCOTICS, AND THE ATTEMPTED FLIGHT OF TOY WHEN THE FEDERAL AGENT IDENTIFIED HIMSELF AS A FEDERAL NARCOTICS AGENT, GAVE THE AGENT PROBABLE CAUSE JUSTIFYING THE IMMEDIATE ARREST OF TOY

At least two elements were operative in the arrest of petitioner Toy, and we need not and do not attempt to separate them or to rely upon either element alone. The combination of both, we believe, adds up to probable cause for the arrest of Toy.

1. Hom Way's statement that he had obtained narcotics from Toy was entitled to great weight.

The first element, in point of time, in the composite of elements that led to Toy's arrest was the statement of informer Hom Way that he had obtained an ounce of heroin, the night before, from Toy. In appraising the weight of that one statement, one cannot determine its reliability solely upon the basis of whether Hom Way had or had not previously furnished information to the agents. We think that, in stressing this factor, the court of appeals unduly emphasized what is only one element in the determination of an informer's reliability—the receipt of prior information from him. The element of past receipt of information would clearly be a favorable factor, but it is not indispensable. When this Court, in Draper v. United States, 358 U.S. 307, referred to the fact that there the government agent had received information from the special employee in the past, it was not ruling that


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 this was indispensable, or that an agent cannot have other reasons for believing an informant. An adequate judgment of reliability depends on a number of circumstances. If relatives of an accused give information as in United States v. Naples, 192 F. Supp. 23 (D. D.C.), pending on appeal, C.A. D.C., No. 16436, officers have a right to take the information very seriously, even if they have never received information from such persons before. Very little corroborating information would be needed to justify an officer in reaching the conclusion that the information given was reliable. On the other hand, more corroboration may reasonably be deemed necessary if information came from an anonymous tip or from a source, theretofore unknown, as to which the officers had no


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 opportunity for judgment. The question is always whether under the particular circumstances the agents acted reasonably.

In this case, agent Wong was dealing with a person (Hom Way) whose character he had had an opportunity to appraise. The court of appeals observed that there was "no showing in this case that the agent knew Hom Way to be reliable" (R. 139-140). However, the federal officer testified that he had known Hom Way for six weeks and judged him to be reliable. It was not incumbent on the prosecution to develop in the first instance all the detailed mental


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 that went into that judgment. The officer was experienced and could draw upon his investigative training and experience in making his appraisal. If petitioner wished to attack the basis of the officer's judgment, it was open to him to seek further details on cross-examination or to offer countervailing evidence. Petitioners cannot rely upon mere conjecture by counsel (R. 60) that the federal agent could have known Hom Way only by limited investigation or that such investigation could not have disclosed probable cause for reliance on him.

Furthermore, the evidence did show circumstances pointing to the reliability of the information beyond the officer's personal appraisal of Hom Way. The latter, while under arrest, gave specific information that he had obtained an ounce (a substantial amount) of heroin the night before from a particular person who operated a laundry on a named street in San Francisco. The very fact that Hom Way was this specific in his statement, while under arrest, tended to give credence to his information, for the information was in sufficient detail to be checked and Hom Way could and would be confronted with any discrepancies if the information proved to be incorrect—as he doubtless knew.

The specificity of information given by an informant is a factor which the courts have considered in determining whether an officer can reasonably rely upon it. See Jackson v. United States, C.A. D.C., No. 16631, decided February 8, 1962. In Draper v. United States, 358 U.S. 307, one of the elements which entered into the evaluation of probable cause was the


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 fact that the informant had given specific information of the defendant's appearance and manner which observations by the officers could corroborate. The courts have held that information given by persons under arrest or by their friends is entitled to credence so that when it is corroborated only slightly the total circumstances can and do amount to probable cause for an arrest. See Thomas v. United States, 281 F. 2d 132 (C.A. 8), certiorari denied, 364 U.S. 904, where the court found probable cause for an arrest in statements by relatives of thieves that stolen property had been sold to the defendant. Indeed, the court below in Rodgers v. United States, 267 F. 2d 79 (C.A. 9),


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 found that information given by a person under arrest constituted probable cause when viewed in relation to the fact that the defendant was found at the place where the informer had said she would be and where her husband had denied that she was. See also People v. Howard, 173 Cal. App. 2d 787, where information given by a group passing forged checks was held to be sufficiently corroborated by the defendant's attempted flight in slamming a door in an officer's face.

Whether or not it would itself constitute probable cause for an arrest, the information given by Hom Way to the agent was entitled to be given considerable weight. It had sufficient earmarks of credibility to justify, indeed to require, investigation. The agents would have been derelict in their duty had they failed to pursue the matter further. And when, in the course of their inquiry, other events (discussed below, pp. 28–33) occurred which gave support to Hom Way's information, the agents had probable cause to arrest petitioner Toy.

2. The actions of Toy, when he learned that the man at his door was a federal narcotics agent, were sufficient corroboration of the prior information to constitute probable cause for Toy's arrest.

The officers did not proceed to arrest Toy simply upon the basis of Hom Way's designation of Toy as the supplier of narcotics. Rather, the agents proceeded immediately to investigate by interviewing Toy. They did not go to the door in a group, as would have been the case had an arrest been intended. One of the officers remained as far away as half a block


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 (R. 35). The other officers were available if an arrest should become necessary or if a search were voluntarily permitted by Toy, but only one officer went to the door.

The hour was early, 6:30 a.m., but it was daylight, not darkness. The fact that it was no longer dark at this time of year is of more significance than the exact hour. For example, while a search warrant must be served in "the daytime" if the affidavits are not positive as to the location of the property (Rule 41(c), F.R. Crim. P.), the test is not the time of rising or setting of the sun but whether there is light; dawn or twilight suffices. Moore v. United States, 57 F. 2d 840, 843 (C.A. 5); United States v. Liebrick, 55 F. 2d 341, 343 (M.D. Pa.); Albright v. Baltimore & O.R. Co., 22 F. 2d 832 (E.D. N.Y.). Nor is 6:30 a.m. so unreasonably early as to be compared to pulling a man out in the small hours after midnight. This was a laundry which was due to open at 8, or possibly 8:30, o'clock (see R. 51, cf. R. 38), and a community in which many businesses open at 8 o'clock. In judging the reasonableness of the officer's action it is also necessary to bear in mind that, in dealing with as easily concealable and as valuable a contraband as heroin, delay in the investigation could have serious consequences. Word of Hom Way's arrest or even of his disappearance from his ordinary haunts could travel quickly and lead to the hiding or destruction of the narcotics.

The officer knocked, and when Toy opened the door he began by asking for laundry. Had the officer contemplated immediate arrest, he would have indulged


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 in no such conversation; with the door open, he could have seized Toy. Instead, when Toy terminated the opportunity for further conversation by telling the agent to return for his laundry later, the agent merely disclosed his official capacity, obviously to continue the interview. He showed his badge and stated, "I am a federal narcotics agent." He said nothing about an arrest. This is undisputed in the officer's testimony and that of Toy himself (R. 51-53; 38, 39, 45-47). Contrary statements in the arguments of counsel in the district court are not supported by the record.

There then occurred the action by Toy that forced upon the officer a split-second decision and supported the arrest as immediately necessary and lawful. Toy slammed the door shut and fled toward the rear of the laundry (the officer could see the flight through the glass in the door). If Toy had narcotics on the premises he could conceal or destroy them in an instant. See Mattus v. United States, 11 F. 2d 503, 504 (C.A. 9); United States v. Kancso, 252 F. 2d 220, 222 (C.A. 2). He could also escape. In sum, Toy's action in fleeing, combined with Hom Way's accusation, constituted probable cause for the arrest of Toy at that moment. Toy's slamming of the door was no flight from a supposed robber. Toy made no claim of any such fear. The admitted circumstances


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 no explanation of the flight to the rear other than guilt. There was only a single agent, standing in daylight at the door of a laundry on a public street, with no weapons, and who had made no attempt to enter. The door was not slammed when the man at the door inquired for laundry; it was slammed when the officer's badge was exhibited.

In these circumstances, the officer surely had cause to believe Toy guilty; unexplained flight from an officer is strong indication of guilt. Husty v. United States, 282 U.S. 694, 701; Brinegar v. United States, 338 U.S. 160, 166, fn. 7; Wrightson v. United States, 236 F. 2d 672, 673 (C.A.D.C.); Jones v. United States, 131 F. 2d 539, 541 (C.A. 10); Levine v. United States, 138 F. 2d 627, 629 (C.A. 2); United States v. Heitner, 149 F. 2d 105, 107 (C.A. 2); People v. Martin, 46 Cal. 2d 106, 108; People v. Maddox, 46 Cal. 2d 301, 303; Allen v. McCoy, 135 Cal. App. 500, 507; People v. Dewson, 150 Cal. App. 2d 119, 129; 2 Wigmore, Evidence (3d ed., 1940), sec. 276. As stated in Green v. United States, 259 F. 2d 180, 182 (C.A.D.C.), certiorari denied, 359 U.S. 917:


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Rh LISTON, JOHN (1776?–1846), actor, the son of John Liston, according to one account a watchmaker, and to another the occupant of a subordinate post in the custom house, was born in or about 1776 in the parish of St. Anne, Soho. His age at death was nevertheless stated to be 72 (Gent. Mag. 1846, i. 661). He was educated under Dr. Barrow at Soho school. Dr. Doran states that he was for a while, under the name of Williams, an usher in the Rev. Dr. Burney's school at Gosport. In 1799 he was master at the grammar school of St. Martin's in Castle Street, Leicester Square. Some amateur efforts at a private theatre in the Strand preceded an appearance in public at Weymouth as Lord Duberley in the ‘Heir-at-Law,’ which was a complete failure. After visiting Dublin, and meeting presumably his future wife, he visited York, where he is said to have acquired a portion of the method of an actor named Kelly, and joined Stephen Kemble on the Newcastle circuit, including Sunderland and Durham. Many comic stories, probably narrated by himself, are told by Mrs. Mathews of his efforts in serious characters, in some of which he supported Mrs. Siddons. He was finally induced by his manager to play old men, and ultimately, as Diggory in ‘She Stoops to Conquer,’ won Kemble's approval. From that time he began to play bumpkins.

In the north Liston acquired a social respect which he never forfeited. Charles Kemble [q. v.] vainly recommended him to the management of Covent Garden. Colman, however, engaged him for the Haymarket, where, as Liston from Newcastle, he appeared on 10 June 1805 in the part of Sheepface in the ‘Village Lawyer.’ His success was not immediate. During the season he played many other parts: Zekiel in the ‘Heir-at-Law,’ Lump in the ‘Review,’ Dan in ‘John Bull,’ Stephen in the ‘Poor Gentleman,’ Robin Roughhead in ‘Fortune's Frolic,’ Jacob in the ‘Chapter of Accidents,’ John Grouse in the ‘School for Prejudice,’ Farmer Ashfield in ‘Speed the Plough,’ Abel in ‘Honest Thieves,’ Sir George Thunder in ‘Wild Oats,’ the Tailor in ‘Katharine and Petruchio,’ Zachariades in the ‘Tailors,’ Fustian in ‘Sylvester Daggerwood,’ Frank in ‘Three and Deuce,’ and Frank Oatland in ‘A Cure for the Heartache,’ besides being the original Antony in Cherry's ‘Village, or the World's Epitome,’ 18 July 1805. Next season, 1806, he was no less busy, playing, among other comic parts, the First Gravedigger in ‘Hamlet.’ His dancing seems to have commended him to the public. On 15 Oct., as Jacob Gawky in the ‘Chapter of Accidents,’ he made his first appearance at Covent Garden, where on the 18th he was the original Memmo in ‘Monk’ Lewis's ‘Rugantino, or the Bravo of Venice,’ and on 28 Jan. 1806 the first Gaby Grim in Colman's ‘We fly by Night, or Long Stories.’ On 16 July 1807 he was the original Vincent in Theodore Hook's ‘Fortress.’ In ‘Music Mad,’ by Hook, Haymarket, 27 Aug. 1807, Liston, who played a comic servant, took a hold of his audience, which was strengthened by his performance of Lord Grizzle, and by his Caper in Allingham's ‘Who Wins? or the Widow's Choice,’ Covent Garden, 25 Feb. 1808. An endless round of comic parts, new and old, was now assigned him. During his stay at Covent Garden, which lasted until 1822, or at the Haymarket, his connection with which as a summer theatre was with few breaks maintained until 1830, he played, among innumerable parts, Polonius, Slender, Pompey in ‘Measure for Measure,’ Bottom, Cloten, Sir Andrew Aguecheek, Octavian in the ‘Mountaineers,’ Justice Greedy in ‘A New Way to Pay Old Debts,’ the Humorous Lieutenant in the piece so named, Bob Acres, Sir Benjamin Backbite, and Tony Lumpkin. In adaptations from Scott he was, so far as Covent Garden is concerned, the original Dominie Sampson, Bailie Nicol Jarvie, Jonathan Oldbuck, Wamba, and Captain Dalgetty. One of the earliest original characters in which his special qualities were shown was Apollo Belvi, a dancing-master, in ‘Killing no Murder,’ by Theodore Hook. The success of the piece was attributed to the acting of Mathews and Liston, who were much together, and learned to play into each other's hands. His Bombastes Furioso at the Haymarket on 7 Aug. 1810 was a highly popular ‘creation,’ as was his Log in ‘Love, Law, and Physic,’ Covent Garden, on 20 Nov. 1812. For his benefits Liston ventured on singular experiments. He played Romeo on 16 June 1812, Ophelia in Poole's ‘Hamlet Travestie’ on 17 June 1813, and, after the fashion of Joe Haines and subsequent comedians, delivered an epilogue from the back of an ass. On 31 May 1822 Liston took his last benefit at Covent Garden. On 28 Jan. 1823, as Tony Lumpkin, he made his first appearance at Drury Lane. The same class of parts was assigned him, and the number of original characters he took in plays by Pocock, Dibdin, Kenney, and other writers of the day was very numerous. He seems to have been better suited to the Haymarket than to larger houses, and his chief triumphs belong to that stage. Greatest and most enduring among these is his ‘Paul Pry,’ 13 Sept. 1825. Genest speaks of this as a perfect piece of acting. Memories of it survive, and the costume and method


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The New International Encyclopædia/Swahili

SWAHILI, swȧ-hē'lḗ. A Bantu people of the Kau District, Tana-Ozi Delta, British East Africa, mingled more or less in blood with Semites. They are Mohammedans and differ little from the Arabs in general culture. They number about one million. They are noted traders, and their language, the Kiswahili, is the great medium of intercourse throughout east Central Africa. Consult: Büttner, Wörterbuch der Suahelisprache (Berlin, 1890); Seidel, Grammatik der Suahelisprache (Vienna, 1891); Steere, Handbook of the Swahili Language (4th ed., London, 1894); Krapf, Dictionary of the Swahili Language (ib., 1882); Madan, English-Swahili Dictionary (Oxford, 1894); Delaunay, Grammaire Kiswahili (Paris, 1898).


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Rh of Liston in the part are repeated to the present day. Engaged by Madame Vestris for the Olympic, he remained at that theatre until his retirement in 1837. His last appearance was for the benefit of George Herbert Bonaparte Rodwell [q. v.], composer, who married his daughter Emma. At this period Liston was living at Penn, near Windsor. Subsequently he removed to London to a house facing Hyde Park Corner, whence, crutch in hand, in his later years he watched the omnibuses pass, exhibiting signs of distress if any happened to be late. Something like softening of the brain appears to have set in; he fell into a state of lethargy, and died on 22 March 1846. He was buried at Kensal Green. He left 40,000l. His son, Captain John Terry Liston, was residuary legatee.

Though one of the most comic of actors, a man unjustly charged with a mere power of grimace, he was of a nervous temperament, and subject to fits of depression. When acting he is said to have not seldom fortified himself with brandy, and to have at times taken a bottle. He was a special favourite with George IV. He obtained the largest salary ever in his time paid to a comedian, and was provident. Forty pounds a week was paid him at Drury Lane when he first joined it, 10l. a night was given him at the Haymarket, and 60l., or, according to another account, 100l. a week when he joined the Olympic. When acting on sharing terms he is said to have made from 250l. to 350l. a week. Liston was five feet eleven in height, and shapely in proportions. The gravity of his face added to the effect of his comedy. Hazlitt describes him as Sir Peter Pigwiggin in ‘Pigeons and Crows.’ ‘His jaws seem to ache with laughter, his eyes look out of his head with wonder, his face is unctuous all over, and bathed with jests.’ He adds that Liston ‘does not play so well to any one else as he does to himself.’ Lamb says: ‘There is one face of Farley, one face of Knight, one—but what a face it is!—of Liston.’ Mrs. Mathews speaks of him as ‘the exquisite Liston.’ Colman, comparing him with Edwin, says that he cannot conceive a ‘greater comic treat than the performance of either when in his element.’ Boaden writes: ‘Other actors labour to be comic. I see nothing like labour or system about Liston. In his person he is stately, and even grave in his expression, nervous, and rather remote from popular habits’ (Life of Mrs. Jordan, ii. 198). Leigh Hunt praises Liston as natural, says that his happiest performances are his ignorant rustics, his most inaccurate his old men. A comparison between Emery and Liston follows, in which it is said that ‘the former is more skilled in the habits and cunning of rusticity, and the latter in its simplicity and ignorance.’ His performances of Jacob Gawky in the ‘Chapter of Accidents’ and Humphrey Grizzle in ‘Three and Deuce’ are specially commended. He was fond of punning, and acquired from intimates such as Mathews and Hook a tendency to indulge in practical jokes.

Pictures of him by De Wilde as Gaby Grim in ‘We fly by Night,’ as Diggory in ‘All the World's a Stage,’ as Solomon in the ‘Quaker,’ and as Caper in ‘Who Wins?’ are in the Garrick Club, a chief ornament of which is the picture by Clint of a scene from ‘Love, Law, and Physic,’ with Liston as Lubin Log, and Mathews and Emery in other characters. A picture of Mrs. Liston as Queen Dollalolla in ‘Tom Thumb,’ by De Wilde, is in the same collection. A picture of Liston by Clint as Paul Pry, with Madame Vestris and others, was in the National Portrait Exhibition of 1868, and now belongs to the Science and Art Department, South Kensington. A portrait of him by Harlow in ‘No Song, no Supper,’ with Emery, Fawcett, and others, is on a panel in the Beef-steak Club room, Lyceum Theatre. Portraits and caricatures of Liston abound. Upon the death, in 1854, of his only son, Liston's effects were sold. These included his favourite portrait, showing him with a horse and dog, and six plates of him in various characters. His library contained many volumes of biblical criticism.

Mrs. Liston, whose stature was diminutive, was a delightful singer in ballad operas and a matchless performer in burlesque. She was a pupil of Kelly and Mrs. Crouch, and is first heard of as Miss Tyrer in Dublin, playing at the concerts at the Rotunda. She is said, probably in error, to have made in 1800, as Josephine in ‘Children in the Wood,’ her first appearance at the Haymarket. Her name is first recorded in connection with the theatre on 21 Aug. 1801, as Winifred in Morton's ‘Zorinski.’ On 21 May 1801, at Drury Lane, as Fidelia in the ‘Pirates,’ a comic opera by James Cobb [q. v.], she is announced to make her first appearance on this, and second on any stage. Her name also appears to Madge in ‘Love in a Village’ on 2 June 1801, to Mysis in ‘Midas’ on 25 Oct. 1802, and a few other parts. Her famous character of Queen Dollalolla in ‘Tom Thumb,’ a burletta extracted from Fielding by Kane O'Hara, was given (third time) at the Haymarket on 27 July 1805. On 18 Sept. 1805, as Lucy in the ‘Review,’ she made her first appearance at Covent Garden, where on 15 Nov. 1806 she was the original Minna in Dimond's ‘Adrian and Orilla,’ and on 11 Dec. 1806,


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 Or, as stated in People v. Howard, 173 Cal. App. 2d 787, 791, where the information had come from theretofore unknown members of a check-passing group:

And see Henry v. United States, 361 U.S. 98, 103, distinguishing its facts from a case of "fleeing men or men acting furtively".

The composite of elements here is as persuasive of guilt, we believe, as the circumstances in numerous decisions that have established probable cause upon corroboration of prior information by factors less


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 persuasive than flight. In some cases, greater or less strength was to be found in the source of the information, and in others greater or less strength was to be found in the observations of the officers. In all the cases, of course, alternative innocent explanations of what was observed could have been hypothesized, e.g., the surreptitious handing over of an envelope could, of course, be innocent. But the mere possibility of an innocent explanation for what was observed is not the test of probable cause; innocence can be conjectured or devised for virtually any act or movement. The test is a prudent evaluation of the totality of elements. See supra, pp. 20–23. We submit that the combination of circumstances here adds up to sufficient probable cause for arrest. See, e.g., Draper v. United States, 358 U.S. 307; Agnello v. United States, 269 U.S. 20, 28, 31; Rodgers v. United States, 267 F. 2d 79 (C.A. 9); Christensen v. United States, 259 F. 2d 192 (C.A. D.C.); United States v. Garnes, 258 F. 2d 530 (C.A. 2); Shepherd v. United States, 244 F. 2d 750 (C.A. D.C.), reversed on other grounds sub nom. Miller v. United States, 357 U.S. 301; United States v. Naples, 192 F. Supp. 23 (D. D.C.), pending on appeal, C.A. D.C., No. 16436.

3. The arrest of Toy was not rendered unlawful by the absence of affirmative evidence that the officer(sic)s(sic) stated his purpose to arrest him.

Petitioners contend (Pet. Br. 9) that the absence of affirmative evidence that the officer stated his purpose to arrest Toy brought the case within the prohibition of Miller v. United States, 357 U.S. 301.