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XIV.]

Then spake the King of Rhineland: “Give proof of that must thou!

The oath which thou dost offer, if thou canst take it now,

From ev’ry untrue dealing I’ll hold thee clear and free.”

Then in a ring around him stood they of Burgundy.

His hand the gallant Siegfried outstretched the oath to take.

Then spake the mighty sovran: “So certain do I make

Of thy great innocency, that I will thee acquit:

Sure what my sister charges thou never didst commit.”

Yet once again spake Siegfried: “And if she joy doth find

In that she hath so troubled Brunhilda’s peace of mind,

My sorrow, of a surety, too deep were to be told.”

Then look’d at one another these ready knights and bold.

“So should one train one’s women,” the hero Siegfried said,

“That suchlike haughty speeches should aye be left unsaid:

Unto thy wife forbid them, to mine I’ll do the same;

Such ill-advised behaviour doth fill my heart with shame.”

By this dispute were many fair women kept apart.

Brunhilda still the matter so sorely took to heart

That needs must Gunther’s warriors feel pity for the dame.

Then Hagen, knight of Tronjé, unto his lady came.

He bade her say what ail’d her, finding her weeping sore.

Then told she him the story, and unto her he swore

That either Kriemhild’s husband must for the lie repent

Or he himself thereafter would never live content.


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6 winter, and met with brilliant success, capturing Byzantium and pushing on towards Hadrianople. There, however, Licinius met him with a very inferior force, and completely routed him (30 April 313). Maximin fled to Nicomedia, and soon found that it would* be as much as he could do to hold the line of Mount Taurus. Now he had no choice—the Christians were strong in Egypt and Syria, and must be conciliated at any cost. So he issued a new edict, explaining that the officials had committed many oppressions very painful to a benevolent ruler like himself; and now, to make further mistakes impossible, he lets all men know that everyone is free to practise whatever religion he pleases. Maximin gives the same liberty as Constantine and Licinius—he could not safely offer less—but he states no principle of toleration. However, it was too late now. Maximin died in the summer, and Licinius issued a rescript carrying out the decisions of Milan, and restoring confiscated property to “the corporation of the Christians.” It was published at Nicomedia 13 June 313. Constantine sent out similar letters in the West.

The defeat of Maximin ends the long contest of Church and State begun by Nero. Former persecutions had died out of themselves, and even Gallienus had only restored the confiscated property; but now the Christians had gained full legal recognition, of which they were never again deprived. Licinius and Julian might devise annoyances and connive at outrages, and work the administration in a hostile spirit; but they never ventured to revoke the Edict of Milan. Heathenism was still strong in its associations with Greek philosophy and culture, with Roman law and social order, and its moral character stood higher than it had done. It hardly looked like a beaten enemy: yet such it was. Its last real hope was gone.

Religious peace was assured, but the unity of the Empire was not yet restored. Constantine and Licinius were both ambitious, and war between them was only a question of time. They were not unequally matched. If Constantine had the victorious legions of Gaul, Licinius ruled the East from the frontier of Armenia to that of Italy, so that he was master of the Illyrian provinces, which furnished the best soldiers of the Roman army. Every emperor from Claudius to Licinius himself was an Illyrian, except Tacitus and Cams. And if Constantine had done a splendid feat of arms, Licinius was a fine soldier too, and (with all his personal vices) not less careful of his subjects.

Constantine was called away from Milan by some incursions of the Franks, who kept him busy during the summer of 313. When things were more settled, he proposed to institute a middle domain for his other brother-in-law Bassianus. The plan seems to have been that while Constantine gave him Italy, Licinius should give him Illyricum. Licinius frustrated it by engaging Bassianus in a plot for which he was put to death, and then refused to give up to Constantine his agent Senecio,

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 used to take delight, and particularly to hear one of them speak a tragical speech, describing the death of old Priam, King of Troy, with the grief of Hecuba his queen. Hamlet welcomed his old friends, the players, and remembering how that speech had formerly given him pleasure, requested the player to repeat it; which he did in so lively a manner, setting forth the cruel murder of the feeble old king, with the destruction of his people and city by fire, and the mad grief of the old queen, running barefoot up and down the palace, with a poor clout upon that head where a crown had been, and with nothing but a blanket upon her loins, snatched up in haste, where she had worn a royal robe; that not only it drew tears from all that stood by, who thought they saw the real scene, so lively was it represented, but even the player himself delivered it with a broken voice and real tears. This put Hamlet upon thinking, if that player could so work himself up to passion by a mere fictitious speech, to weep for one that he had never seen, for Hecuba, that had been dead so many hundred years, how dull was he, who having a real motive and cue for passion, a real king and a dear father murdered, was yet so little moved, that his revenge all this while had seemed to have slept in dull and muddy forgetfulness! and while he meditated on actors and acting, and the powerful effects which a good play, represented to the life, has upon the spectator, he remembered the instance of some murderer, who seeing a murder on the stage, was by the mere force of the scene and resemblance of circumstances so affected, that on the spot he confessed the crime which he had committed. And he determined that these players should play something like the murder of his father before his uncle, and he would watch narrowly what effect it might have upon him, and from his looks he would be able to gather with


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Of divine grace as a force with which the Lord sanctifies us. This whole division expounds the Saviour’s special relation to men. Section I. expounded the conception of the church, that instrument by which the human race is saved; now, it would seem, ought to be expounded those means by which men are saved, but that will be expounded in Section III. This 2d section will expound wherein the salvation will actually consist. It is this doctrine that will be expounded in this section. This doctrine is called the doctrine about grace. What is meant by the word “grace”?

Art. 183 begins with various definitions of grace:

“1. Under the name of divine grace is in general understood all that which the Lord gives to all his creatures without any deserts on their parts (Rom. xi. 6; 1 Peter v. 10).”

That is the definition of grace. Then follow subdivisions.

“For that reason divine grace is divided into natural and supernatural. To natural grace belong all natural gifts of God to the creatures, such as, life, health, reason, freedom, external well-being, and so forth. To supernatural grace belong all gifts which are communicated by God to the creatures in a supernatural manner, in addition to the gifts of Nature, when, for example, he himself directly enlightens the mind of rational beings with the light of his truth, and strengthens their will with his power and cooperation in matters of godliness. This


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Gageler CJ Gleeson J Jagot J in the sense that it involved asking whether there was a "real chance" that the irregularity impacted on the jury's verdict. If such prejudice was established, the respondent sought to invoke the proviso.

Smith v Western Australia establishes that the question whether a miscarriage of justice occurred because of an irregularity in the conduct of a jury or juror is to be determined by applying the test stated by Mason CJ and McHugh J in Webb v The Queen. That test was stated in terms of whether the irregularity "gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially". However, it is apparent from the assimilation in Webb of the test for reasonable apprehension of bias on the part of a judge with the test for reasonable apprehension of bias on the part of a juror ; the reference in Smith to the other members of the Court in Webb agreeing with Mason CJ and McHugh J ; and the extension in Smith of that test to all forms of juror misconduct or irregularity, that the test should be understood in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. The "double might" test was confirmed as the test for reasonable apprehension of bias (including on the part of a jury or juror) in Ebner v Official Trustee in Bankruptcy.

If the irregularity gives rise to such a reasonable apprehension, then there has been a "failure to observe the requirements of the criminal process in a fundamental respect", in that "the integrity of the trial process" has been undermined. In such event, regardless of any potential effect on the trial, there has

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text: Travels in West Africa, Congo Français, Corisco and Cameroons/Chapter 18


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 more certainty if he were the murderer or not. To this effect he ordered a play to be prepared, to the representation of which he invited the king and queen.

The story of the play was of a murder done in Vienna upon a duke. The duke's name was Gonzago, his wife Baptista. The play showed how one Lucianus, a near relation to the duke, poisoned him in his garden for his estate, and how the murderer in a short time after got the love of Gonzago's wife.

At the representation of this play, the king, who did not know the trap which was laid for him, was present, with his queen and the whole court: Hamlet sitting attentively near him to observe his looks. The play began with a conversation between Gonzago and his wife, in which the lady made many protestations of love, and of never marrying a second husband, if she should outlive Gonzago; wishing she might be accursed if she ever took a second husband, and adding that no woman did so, but those wicked women who kill their first husbands. Hamlet observed the king his uncle change colour at this expression, and that it was as bad as wormwood both to him and to the queen. But when Lucianus, according to the story, came to poison Gonzago sleeping in the garden, the strong resemblance which it bore to his own wicked act upon the late king, his brother, whom he had poisoned in his garden, so struck upon the conscience of this usurper, that he was unable to sit out the rest of the play, but on a sudden calling for lights to his chamber, and affecting or partly feeling a sudden sickness, he abruptly left the theatre. The king being departed, the play was given over. Now Hamlet had seen enough to be satisfied that the words of the ghost were true, and no illusion; and in a fit of gaiety, like that which comes over a man who suddenly has some great doubt or scruple resolved, he


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314-323] the brother of Bassianus. This meant war. Constantine took the offensive as he had done before, pushing into Pannonia with no more than 20,000 men, and attacking Licinius at Cibalae, where he was endeavouring to cover Sirmium. He had 35,000 against him, but a hard-fought battle (8 Oct. 314) ended in a complete victory, and the capture of Sirmium. Licinius fled towards Hadrianople, deepening the quarrel on the way by giving the rank of Caesar to his Illyrian general Valens. A new army was collected; but another great battle on the Mardian plain was indecisive. Constantine won the victory; but Licinius and Valens were able to take up a threatening position in his rear at Beroea. So peace had to be made. First Valens was sacrificed: then Licinius gave up lllyricum from the Danube to the extremity of Greece, retaining in Europe only Thrace, which, however, in those days reached north to the Danube. So things settled down. Constantine returned to Rome in the summer to celebrate his Decennalia (25 July 315), and in 317 the succession was secured by the nomination of Caesars, Crispus and Constantine the sons of Constantine, and Licinianus the son of Licinius. Crispus was grown up, but Constantine was a baby.

The treaty might be hollow, but it kept the peace for nearly eight years. If Constantine was evidently the stronger, Licinius was still too strong to be rashly attacked. So each went his own way. It soon appeared which was the better statesman. Constantine drew nearer to the Christians, while Licinius drifted into persecution, devising annoyances enough to make them enemies but not enough to make them harmless. Thus Constantine allows manumission in church, judges the Donatists, closes the courts on Sundays, loads the churches with gifts, and, at last (May 323), frees Christians from all pagan ceremonies of state. Licinius drove the Christians from his court, forbade meetings of bishops, and meddled vexatiously with their worship. This gave the war something of a religious character; but its occasion was not religious. The Goths had been pretty quiet since Aurelian had settled them in Dacia. It was not till 322 that Rausimod their king crossed the Danube on a foray. Constantine drove them back, chased them beyond the Danube, slew Rausimod, and settled thousands of Gothic serfs in the adjacent provinces. But in the pursuit he crossed the territory of Licinius; and this led to war. Constantine’s army was 130,000 strong, and his son Crispus had a fleet of 200 sail, in the Piraeus. Licinius awaited him with 160,000 men near Hadrianople, while his admiral Amandus was to hold the Hellespont with 350 ships. There was no idea of using the fleet to take Constantine in the rear.


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148

Ortwein and also Gernot, in council join’d the twain;

And there the heroes plotted how Siegfried should be slain.

And Giselher came likewise, the noble Uté’s son;

When he had heard their saying, he spake,—the faithful one:

“Alack! ye gallant warriors, now wherefore do ye that?

I trow that never Siegfried deservéd such like hate,

That he, by reason of it, should need to lose his life:

Ay, very trifles are they that make an angry wife!”

“Are we to harbour cuckoos?” cried Hagen, answering:

“To gallant knights as we are scant honour that would bring!

That he of my dear lady hath bragg’d so scurvily

His life shall make atonement; or I myself will die.”

The king himself spake, saying: “Naught hath he to us done

Save what is good and worthy; so let his life alone.

What matter though the warrior were hateful now to me?

He hath been ever faithful and that right willingly.”

Then spake the warrior Ortwein, who came from Metz, and said:

“His great strength, of a surety, shall give him little aid.

If now my lord allow me, short shrift of him I’ll make.”

Thus, without cause, the heroes the part of foes did take.

But none went any further, save Hagen, who for aye,

Was pressing upon Gunther this counsel day by day:

That, if King Siegfried lived not, to him would subject be

The broad lands that he governed;— the king heard ruefully.


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 swore to Horatio, that he would take the ghost's word for a thousand pounds. But before he could make up his resolution as to what measures of revenge he should take, now he was certainly informed that his uncle was his father's murderer, he was sent for by the queen his mother, to a private conference in her closet.

It was by desire of the king that the queen sent for Hamlet, that she might signify to her son how much his late behaviour had displeased them both, and the king, wishing to know all that passed at that conference, and thinking that the too partial report of a mother might let slip some part of Hamlet's words, which it might much import the king to know, Polonius, the old counsellor of state, was ordered to plant himself behind the hangings in the queen's closet, where he might unseen hear all that passed. This artifice was particularly adapted to the disposition of Polonius, who was a man grown old in crooked maxims and policies of state, and delighted to get at the knowledge of matters in an indirect and cunning way.

Hamlet being come to his mother, she began to tax him in the roundest way with his actions and behaviour, and she told him that he had given great offence to his father, meaning the king, his uncle, whom, because he had married her, she called Hamlet's father. Hamlet, sorely indignant that she should give so dear and honoured a name as father seemed to him, to a wretch who was indeed no better than the murderer of his true father, with some sharpness replied, "Mother, you have much offended my father." The queen said that was but an idle answer. "As good as the question deserved," said Hamlet. The queen asked him if he had forgotten who it was he was speaking to? "Alas!" replied Hamlet, "I wish I could forget. You are the queen, your husband's


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been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso.

While the irregularity in Webb involved conduct of a juror that called into question the juror's impartiality, and in Smith involved alleged coercion by one juror of another juror, the "double might" test of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function impartially ("the reasonable apprehension test") is not to be confined to any particular class of irregularity of juror conduct; the "double might" test is sufficiently liberal to subsume the range of potential miscarriages of justice by reason of jury (or juror) misconduct or irregularity irrespective of the legal label that might otherwise apply to that misconduct or irregularity.

In Smith, reference had been made in the decision under appeal to the test in R v Marsland as applied in R v Rudkowsky and R v K. In K, Wood CJ at CL distinguished Webb on the basis that it concerned possible juror bias whereas in K the irregularity was that several jurors had conducted internet searches from which they ascertained that the accused had previously been charged with the murder of his second wife, the proceeding being a retrial of the accused on the charge of the murder of his first wife. Wood CJ at CL said the circumstances of the internet searches and information obtained as a result of them were analogous to cases of documents other than evidence being in a jury room. On this basis, his Honour characterised the irregularity as "procedural" and applied the test derived from Marsland as applied in Rudkowsky that for a procedural irregularity not to give rise to a miscarriage of justice the court must be satisfied that "the

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 brother's wife; and you are my mother: I wish you were not what you are." "Nay, then," said the queen, "if you show me so little respect, I will set those to you that can speak," and was going to send the king or Polonius to him. But Hamlet would not let her go, now he had her alone, till he had tried if his words could not bring her to some sense of her wicked life; and, taking her by the wrist, he held her fast, and made her sit down. She, affrighted at his earnest manner, and fearful lest in his lunacy he should do her a mischief, cried out; and a voice was heard from behind the hangings, "Help, help, the queen!" which Hamlet hearing, and verily thinking that it was the king himself there concealed, he drew his sword and stabbed at the place where the voice came from, as he would have stabbed a rat that ran there, till the voice ceasing, he concluded the person to be dead. But when he dragged for the body, it was not the king, but Polonius, the old officious counsellor, that had planted himself as a spy behind the hangings. "Oh me!" exclaimed the queen, "what a rash and bloody deed have you done!" "A bloody deed, mother," replied Hamlet, "but not so bad as yours, who killed a king, and married his brother." Hamlet had gone too far to leave off here. He was now in the humour to speak plainly to his mother, and he pursued it. And though the faults of parents are to be tenderly treated by their children, yet in the case of great crimes the son may have leave to speak even to his own mother with some harshness, so as that harshness is meant for her good, and to turn her from her wicked ways, and not done for the purpose of upbraiding. And now this virtuous prince did in moving terms represent to the queen the heinousness of her offence, in being so forgetful of the dead king, his father, as in so short a space of time to marry with his brother and reputed murderer:


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 Stalking the wild West African idea is one of the most charming pursuits in the world. Quite apart from the intellectual, it has a high sporting interest; for its pursuit is as beset with difficulty and danger as grizzly bear hunting, yet the climate in which you carry on this pursuit—vile as it is—is warm, which to me is almost an essential of existence. Personally I prefer it to elephant hunting; and I shall never forget the pleasure with which, in the forest among the Fans, I netted one reason for the advantage of possessing a white man's eye-ball, and, as I wrote it down in my water-worn notebook, saw it joined up with the reason why it is advisable to cut off big men's heads in the Niger Delta. Above all, I beg you to understand that I make no pretension to a thorough knowledge of Fetish ideas; I am only on the threshold. "Ich weiss nicht all doch viel ist mir bekannt," as Faust said—and, like him after he had said it, I have got a lot to learn.

I do not intend here to weary you with more than a small portion of even my present knowledge, for I have great collections of facts that I keep only to compare with those of other hunters of the wild idea, and which in their present state are valueless to the cabinet ethnologist. Some of these may be rank lies, some of them mere individual mind-freaks, others have underlying them some idea I am not at present in touch with.

The difficulty of gaining a true conception of the savage's real idea is great and varied.

In places on the Coast where there is, or has been, much missionary influence the trouble is greatest, for in the first case the natives carefully conceal things they fear will bring them into derision and contempt, although they still keep them in their innermost hearts; and in the second case, you have a set of traditions which are Christian in origin, though frequently altered almost beyond recognition by being kept for years in the atmosphere of the African mind. For example, there is this beautiful story now extant among the Cabindas. God made at first all men black—He always does in the African story—and then He went across a great river and called men to follow Him, and the wisest and the bravest and the best plunged into


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XIV.]

They let the matter rest; then to jousting did they take.

Ha! many a sturdy lance-shaft for Siegfried’s wife they brake

In shadow of the minster, up to the royal hall!

Yet were some men of Gunther’s but ill-content withal.

The king spake: “Lay aside now this murd’rous hate and scorn;

Unto our weal and honour he verily was born.

So fierce his strength is also, this marvellous-bold knight,

Had he of this an inkling, none durst withstand his might.”

“He’ll never know,” quoth Hagen, “save thou should let it out!

I trow that I in secret can bring it so about

That for Brunhilda’s weeping sore reckoning he shall pay.

Yea, verily is Hagen his enemy for aye.”

Then spake the royal Gunther: “And how may that be done?”

And Hagen said in answer: “That will I now make known.

We’ll bid two unknown envoys to ride as from afar

Unto our land, fore all men to challenge us to war.

“Then thou, before the guests, wilt declare that thou must go

To battle, with thy liegemen; and when he that doth know

He’ll offer you his service: so shall he lose his life.

I’ll seek to learn his secret from the bold warrior’s wife.”

Unto his vassal Gunther in evil hour gave ear.

With treason foul to tamper, ere any grew aware,

Began those chosen warriors of chivalry the boast.

By wrangling of two women was many a hero lost.


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irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred".

The distinction drawn in K, and the test derived from Marsland, have been applied to jury or juror misconduct in a number of intermediate appellate court decisions, with a range of variations of verbal formulae, as has the test in Smith. In Mathews v Western Australia, Martin CJ, in dealing with a juror who had sought and obtained information about the accused, considered that the circumstances could not be characterised as a case of either lack of juror impartiality or procedural irregularity. Rather, the circumstances involved aspects that fell within each of those categories. His Honour applied both tests and concluded that, on either test, the same result had to be reached–the facts would have given rise to a reasonable apprehension or suspicion on the part of a fair-minded lay observer that the juror did not discharge his function impartially and the court could not be satisfied that the procedural irregularity did not affect

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text: The Lay of the Nibelungs/Chapter 14

title: The Lay of the Nibelungs/Chapter 14


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 such an act as, after the vows which she had sworn to her first husband, was enough to make all vows of women suspected, and all virtue to be accounted hypocrisy, wedding contracts to be less than gamesters' oaths, and religion to be a mockery and a mere form of words. He said she had done such a deed, that the heavens blushed at it, and the earth was sick of her because of it. And he showed her two pictures, the one of the late king, her first husband, and the other of the present king, her second husband, and he bade her mark the difference; what a grace was on the brow of his father, how like a god he looked! the curls of Apollo, the forehead of Jupiter, the eye of Mars, and a posture like to Mercury newly alighted on some heaven-kissing hill! this man, he said, had been her husband. And then he showed her whom she had got in his stead: how like a blight or a mildew he looked, for so he had blasted his wholesome brother. And the queen was sore ashamed that he should so turn her eyes inward upon her soul, which she now saw so black and deformed. And he asked her how she could continue to live with this man, and be a wife to him, who had murdered her first husband, and got the crown by as false means as a thiefand just as he spoke, the ghost of his father, such as he was in his lifetime, and such as he had lately seen it, entered the room, and Hamlet, in great terror, asked what it would have; and the ghost said that it came to remind him of the revenge he had promised, which Hamlet seemed to have forgot; and the ghost bade him speak to his mother, for the grief and terror she was in would else kill her. It then vanished, and was seen by none but Hamlet, neither could he by pointing to where it stood, or by any description, make his mother perceive it; who was terribly frightened all this while to hear him conversing, as it seemed to her, with nothing; and


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 she imputed it to the disorder of his mind. But Hamlet begged her not to flatter her wicked soul in such a manner as to think that it was his madness, and not her own offences, which had brought his father's spirit again on the earth. And he bade her feel his pulse, how temperately it beat, not like a madman's. And he begged of her with tears, to confess herself to heaven for what was past, and for the future to avoid the company of the king, and be no more as a wife to him: and when she should show herself a mother to him, by respecting his father's memory, he would ask a blessing of her as a son. And she promising to observe his directions, the conference ended.

And now Hamlet was at leisure to consider who it was that in his unfortunate rashness he had killed: and when he came to see that it was Polonius, the father of the lady Ophelia, whom he so dearly loved, he drew apart the dead body, and, his spirits being now a little quieter, he wept for what he had done.

The unfortunate death of Polonius gave the king a pretence for sending Hamlet out of the kingdom. He would willingly have put him to death, fearing him as dangerous; but he dreaded the people, who loved Hamlet, and the queen, who, with all her faults, doted upon the prince, her son. So this subtle king, under pretence of providing for Hamlet's safety, that he might not be called to account for Polonius' death, caused him to be conveyed on board a ship bound for England, under the care of two courtiers, by whom he despatched letters to the English court, which in that time was in subjection and paid tribute to Denmark, requiring for special reasons there pretended, that Hamlet should be put to death as soon as he landed on English ground. Hamlet, suspecting some treachery, in the night-time secretly got at the letters, and skilfully erasing his own name, he in the


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the verdict, in the sense that the jury would have returned the same verdict if theirregularity had not occurred.

Conceptual coherence requires that the test derived from Marsland, and the range of verbal variations on it, be reconciled with the test formulated in Webb, applied in Smith, and confirmed in Ebner. The reconciliation needs to be in favour of the test formulated in Webb. Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial" , and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict".

There may be no practical difference between the test formulated in Webb and the test derived from Marsland were application of the common form proviso focused solely on the effect of an irregularity on the actual jury in the trial. If the reasonable apprehension test were satisfied, it may then be impossible to conclude that the irregularity did not affect the verdict and the proviso would not be available. However, this Court's rejection in Weiss v The Queen of the utility of considering the effect of an irregularity on the actual jury in the trial (referred to as the "this jury" test) in the application of the common form proviso negates that

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 stead of it put in the names of those two courtiers, who had the charge of him, to be put to death: then sealing up the letters, he put them into their place again. Soon after the ship was attacked by pirates, and a sea-fight commenced; in the course of which Hamlet, desirous to show his valour, with sword in hand singly boarded the enemy's vessel; while his own ship, in a cowardly manner, bore away, and leaving him to his fate, the two courtiers made the best of their way to England, charged with those letters the sense of which Hamlet had altered to their own deserved destruction.

The pirates, who had the prince in their power, showed themselves gentle enemies; and knowing whom they had got prisoner, in the hope that the prince might do them a good turn at court in recompense for any favour they might show him, they set Hamlet on shore at the nearest port in Denmark. From that place Hamlet wrote to the king, acquainting him with the strange chance which had brought him back to his own country, and saying that on the next day he should present himself before his majesty. When he got home, a sad spectacle offered itself the first thing to his eyes.

This was the funeral of the young and beautiful Ophelia, his once dear mistress. The wits of this young lady had begun to turn ever since her poor father's death. That he should die a violent death, and by the hands of the prince whom she loved, so affected this tender young maid, that in a little time she grew perfectly distracted, and would go about giving flowers away to the ladies of the court, and saying that they were for her father's burial, singing songs about love and about death, and sometimes such as had no meaning at all, as if she had no memory of what happened to her. There was a willow which grew slanting over a brook, and


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form of reconciliation by assimilation. The test as formulated in Webb and confirmed in Ebner must prevail.

Accordingly, in all cases of jury or juror misconduct, what is required to establish a miscarriage of justice, and what will also establish a substantial miscarriage of justice, is that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. Although the terms have been used interchangeably in this context, the test is best expressed in terms of a reasonable "apprehension" rather than a reasonable "suspicion". A suspicion is "a state of conjecture or surmise where proof is lacking"; it is "more than a mere idle wondering"; "it is a positive feeling of actual apprehension or mistrust". To be reasonable, a suspicion or apprehension requires a positive feeling of actual apprehension or mistrust which has an objective basis in fact. To apply the reasonable apprehension test therefore requires first that such relevant facts as can be inferred from the available evidence be found on the balance of probabilities. In undertaking that necessary preliminary fact-finding, it is useful to record the truism that "[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed" ; inference requires "something more than mere conjecture, guesswork or surmise".

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 reflected its leaves on the stream. To this brook she came one day when she was unwatched, with garlands she had been making, mixed up of daisies and nettles, flowers and weeds together, and clambering up to hang her garland upon the boughs of the willow, a bough broke, and precipitated this fair young maid, garland, and all that she had gathered, into the water, where her clothes bore her up for a while, during which she chanted scraps of old tunes, like one insensible to her own distress, or as if she were a creature natural to that element: but long it was not before her garments, heavy with the wet, pulled her in from her melodious singing to a muddy and miserable death. It was the funeral of this fair maid which her brother Laertes was celebrating, the king and queen and whole court being present, when Hamlet arrived. He knew not what all this show imported, but stood on one side, not inclining to interrupt the ceremony. He saw the flowers strewed upon her grave, as the custom was in maiden burials, which the queen herself threw in; and as she threw them she said, "Sweets to the sweet! I thought to have decked thy bride-bed, sweet maid, not to have strewed thy grave. Thou shouldst have been my Hamlet's wife." And he heard her brother wish that violets might spring from her grave: and he saw him leap into the grave all frantic with grief, and bid the attendants pile mountains of earth upon him, that he might be buried with her. And Hamlet's love for this fair maid came back to him, and he could not bear that a brother should show so much transport of grief, for he thought that he loved Ophelia better than forty thousand brothers. Then discovering himself, he leaped into the grave where Laertes was, all as frantic or more frantic than he, and Laertes knowing him to be Hamlet, who had been the cause


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In the circumstances of the present case, where the issue has arisen only after conviction, the question of miscarriage of justice may therefore be expressed in these terms:

"On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?"

The evidence available for the purpose of fact-finding is affected by the common law rule excluding evidence of the jury's deliberations. However, the limits of that common law rule are informed by its underlying policy to "maintain the integrity and finality of a formally expressed verdict". The rule does not apply to evidence extrinsic to the deliberations of the jury and may, of course, be modified by statute. It was common ground in the appeal that a report of the Sheriff under's 70(7) of the Jury Act 1995 (Qld) was properly admitted into evidence. This appeal, accordingly, provides no opportunity to decide questions relating to the scope of the exclusionary rule in the light of the reasoning in Smith.

Evaluation of the available evidence from the perspective of a fair-minded and informed member of the public must take account of the requirement of's 50 of the Jury Act that "[t]he members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried". Apprehension of a violation of that oath is not lightly to be inferred.

We will turn now to the background to the appeal, to the course of the trial, and to the circumstances which subsequently revealed the undisputed irregularity in the conduct of the jury.

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 of his father's and his sister's death, grappled him by the throat as an enemy, till the attendants parted them: and Hamlet, after the funeral, excused his hasty act in throwing himself into the grave as if to brave Laertes; but he said he could not bear that any one should seem to outgo him in grief for the death of the fair Ophelia. And for the time these two noble youths seemed reconciled.

But out of the grief and anger of Laertes for the death of his father and Ophelia, the king, Hamlet's wicked uncle, contrived destruction for Hamlet. He set on Laertes, under cover of peace and reconciliation, to challenge Hamlet to a friendly trial of skill at fencing, which Hamlet accepting, a day was appointed to try the match. At this match all the court was present, and Laertes, by direction of the king, prepared a poisoned weapon. Upon this match great wagers were laid by the courtiers, as both Hamlet and Laertes were known to excel at this sword play; and Hamlet taking up the foils chose one, not at all suspecting the treachery of Laertes, or being careful to examine Laertes' weapon, who, instead of a foil or blunted sword, which the laws of fencing require, made use of one with a point, and poisoned. At first Laertes did but play with Hamlet, and suffered him to gain some advantages, which the dissembling king magnified and extolled beyond measure, drinking to Hamlet's success, and wagering rich bets upon the issue: but after a few pauses, Laertes growing warm made a deadly thrust at Hamlet with his poisoned weapon, and gave him a mortal blow. Hamlet incensed, but not knowing the whole of the treachery, in the scuffle exchanged his own innocent weapon for Laertes' deadly one, and with a thrust of Laertes' own sword repaid Laertes home, who was thus justly caught in his own treachery. In this instant the queen


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Background to the appeal

The appellant was charged with 25 counts, each concerning an alleged sexual offence against one of two complainants, referred to as K and E, including when K and E were under 16 years of age. The appellant is K and E's uncle. The counts involved offences alleged to have been committed between December 1989 and September 2001. The appellant was about 25 to 37 years old during the charge period; K was about six to 18 years old during the period.

The trial judge directed acquittals of the appellant on counts 8, 10, 11, 12, 13 and 23. Of the remaining 19 counts, the appellant was convicted on six counts and acquitted of 13 counts. The counts on which the appellant was convicted all related to K. Those counts were:

1. count 1 (maintaining a relationship of a sexual nature with K, a child under 16 years, between 31 December 1989 and 19 September 1999 with two circumstances of aggravation, namely, (i) unlawfully and indecently dealing with K, a child under 16 years; and (ii) wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself);

2. counts 3 and 4 (unlawfully and indecently dealing with K, a child under 16 years, between 31 December 1994 and 20 September 1996);

3. count 5 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 31 December 1994 and 20 September 1996);

4. count 14 (unlawfully and indecently dealing with K, a child under 16 years, between 18 September 1997 and 19 September 1998); and

5. count 17 (the alternative verdict of unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999).

The counts on which the appellant was not convicted were:

1. a circumstance of aggravation of count 1 (rape of K during the maintaining of the relationship of a sexual nature with K, a child under 16 years);

2. count 2 (maintaining a relationship of a sexual nature with E, a child under 16 years, between 9 August 1994 and 10 August 2000);

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 shrieked out that she was poisoned. She had inadvertently drunk out of a bowl which the king had prepared for Hamlet, in case, that being warm in fencing, he should call for drink: into this the treacherous king had infused a deadly poison, to make sure of Hamlet, if Laertes had failed. He had forgotten to warn the queen of the bowl, which she drank of, and immediately died, exclaiming with her last breath that she was poisoned. Hamlet, suspecting some treachery, ordered the doors to be shut, while he sought it out. Laertes told him to seek no farther, for he was the traitor; and feeling his life go away with the wound which Hamlet had given him, he made confession of the treachery he had used, and how he had fallen a victim to it: and he told Hamlet of the envenomed point, and said that Hamlet had not half an hour to live, for no medicine could cure him; and begging forgiveness of Hamlet, he died, with his last words accusing the king of being the contriver of the mischief. When Hamlet saw his end draw near, there being yet some venom left upon the sword, he suddenly turned upon his false uncle, and thrust the point of it to his heart, fulfilling the promise which he had made to his father's spirit, whose injunction was now accomplished, and his foul murder revenged upon the murderer. Then Hamlet, feeling his breath fail and life departing, turned to his dear friend Horatio, who had been spectator of this fatal tragedy; and with his dying breath requested him that he would live to tell his story to the world (for Horatio had made a motion as if he would slay himself to accompany the prince in death), and Horatio promised that he would make a true report, as one that was privy to all the circumstances. And, thus satisfied, the noble heart of Hamlet cracked; and Horatio and the bystanders with many


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1. count 6 (unlawfully and indecently dealing with E, a child under 16 years, between 9 August 1994 and 1 January 1998);

2. count 7 (unlawfully and indecently dealing with K, a child under 16 years, and under 12 years, on 25 December 1994);

3. count 9 (rape of E and unlawful carnal knowledge of E, between 9 August 1995 and 10 August 1997);

4. count 15 (unlawfully and indecently dealing with K, a child under 16 years, between 18 September 1997 and 19 September 1998);

5. count 16 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 18 September 1997 and 19 September 1998);

6. count 17 (rape of K and unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999);

7. count 18 (rape of K and unlawful carnal knowledge of K, between 31 December 1998 and 1 January 2000);

8. count 19 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 9 August 1997 and 10 August 2000);

9. count 20 (rape of K and unlawful carnal knowledge of K, between 9 August 1997 and 10 August 2000);

10. count 21 (wilfully and unlawfully exposing E, a child under 16 years, to an indecent act by himself, between 9 August 1997 and 10 August 2000);

11. count 22 (unlawfully and indecently dealing with E, a child under 16 years, between 9 August 1997 and 10 August 2000);

12. count 24 (unlawfully procuring K, without her consent, to witness an act of gross indecency by himself, between 9 August 1997 and 10 August 2000); and

13. count 25 (unlawfully and indecently assaulting K, between 18 September 2000 and 19 September 2001).

The jury found the appellant not guilty on these counts, other than a circumstance of aggravation of count 1 (rape of K during the maintaining of the relationship of a sexual nature with K, a child under 16 years) and count 17 (rape of K, between

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 tears commended the spirit of this sweet prince to the guardianship of angels. For Hamlet was a loving and a gentle prince, and greatly beloved for his many noble and princelike qualities; and if he had lived, would no doubt have proved a most royal and complete king to Denmark.


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 November, by the electors of the state, and at the places for voting for members of the General Assembly. [As amended October 13, 1885; 82 v. 446.]

2. The governor, lieutenant governor, secretary of state, treasurer, and attorney general shall hold their offices for two years; and the auditor for four years. Their terms of office shall commence on the second Monday of January next after their election, and continue until their successors are elected and qualified.

3. The returns of every election for the officers named in the foregoing section shall be sealed up and transmitted to the seat of government, by the returning officers, directed to the president of the senate, who, during the first week of the session, shall open and publish them, and declare the result, in the presence of a majority of the members of each house of the General Assembly. The person having the highest number of votes shall be declared duly elected; but if any two or more shall be highest, and equal in votes, for the same office, one of them shall be chosen by the joint vote of both houses.

4. Should there be no session of the General Assembly in January next after an election for any of the officers aforesaid, the returns of such election shall be made to the secretary of state and opened and the result declared by the governor, in such manner as may be provided by law.

5. The supreme executive power of this state shall be vested in the governor.

6. He may require information, in writing, from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed.

7. He shall communicate at every session by message, to the General Assembly, the condition of the state, and recommend such measures as he shall deem expedient.

8. The governor on extraordinary occasions may convene the general assembly by proclamation and shall state in the proclamation the purpose for which such special session is called, and no other business shall be transacted at such special session except that named in the proclamation, or in a subsequent public proclamation or message to the general assembly issued by the governor during the special session, but the general assembly may provide for the expenses of the session and other matter incidental thereto. (Adopted Sept. 3, 1912.)

9. In case of a disagreement between the two houses, in respect to the time of adjournment, he shall have power to adjourn the General Assembly to such time as he may think proper, but not beyond the regular meetings thereof.

10. He shall be commander-in-chief of the military and naval forces of the state, except when they shall be called into the service of the United States.

11. He shall have power, after conviction, to grant reprieves, commutations and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law. Upon conviction for treason, he may suspend the execution of sentence, and report the case to the General Assembly, at its next meeting, when the General Assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve. He shall communicate to the General Assembly, at every regular session, each case of reprieve, commutation, or pardon granted,

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18 September 1997 and 20 September 1999), in respect of which the jury was unable to reach a verdict.

The day after the entry of the jury verdicts, a juror delivered a note to the Acting Deputy Registrar of the District Court of Queensland, concerning the jury's deliberations. As will be explained, this note caused the trial judge to authorise the Sheriff of Queensland to conduct an investigation under s 70(7) of the Jury Act. On the following day, the trial judge sentenced the appellant on the six verdicts of guilty (for count 1 to nine years' imprisonment; for count 3 to 12 months' imprisonment; for counts 4 and 5 to two and a half years' imprisonment; for count 14 to six months' imprisonment; and for count 17 to four years' imprisonment, with all sentences to be served concurrently).

The appellant appealed against the convictions and sought leave to appeal against the sentence. By the time of the hearing before the Court of Appeal of the Supreme Court of Queensland, the Sheriff had provided a report of her investigation. The appellant's appeal against his convictions alleged a miscarriage of justice on two grounds: first, by reason of a juror conducting internet investigations and the other jurors not reporting this conduct to the trial judge; and, second, by reason of the same juror not disclosing a stated bias to the trial judge. The appellant's appeal against sentence was on the ground that the sentence was manifestly excessive. The Court of Appeal dismissed the appeal against the convictions and refused leave to appeal against the sentence.

The appellant was granted special leave to appeal on three grounds. In the event, during the hearing, the appellant pursued a single ground of appeal, namely, that the Court of Appeal erred in dismissing the appellant's appeal against his convictions on the basis that there had been no miscarriage of justice by reason of a juror conducting internet investigations and the collective misconduct of the other jurors in not reporting that to the trial judge. The appellant submitted that those circumstances gave rise to a non-speculative inference about the jurors' failure to obey judicial directions. The respondent maintained that if, contrary to its case, there was a miscarriage of justice, the proviso should be applied. As explained, given that the applicable test is the reasonable apprehension test, there is no scope for application of the proviso in this case.

The trial

The trial started on Tuesday, 13 October 2020. After the jury was empanelled, the trial judge made what he described as "introductory remarks" to the jury. The trial judge's introductory remarks included that the jurors must only discuss the case amongst themselves and not with anyone else. The trial judge continued, saying:

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is a relief to turn from this miserable record of Pope's petty or malicious deceptions to the history of his legitimate career. I go back to the period when he was still in full power. Having finished the Dunciad, he was soon employed on a more ambitious task. Pope resembled one of the inferior bodies of the solar system, whose orbit is dependent upon that of some more massive planet; and having been a satellite of Swift, he was now swept into the train of the more imposing Bolingbroke. He had been originally introduced to Bolingbroke by Swift, but had probably seen little of the brilliant minister who, in the first years of their acquaintance, had too many occupations to give much time to the rising poet. Bolingbroke, however, had been suffering a long eclipse, whilst Pope was gathering fresh splendour. In his exile, Bolingbroke, though never really weaned from political ambition, had nused himself with superficial philosophical studies. In political life it was his special glory to extemporize statesmanship without sacrificing pleasure. He could be at once the most reckless of rakes and the leading spirit in the Cabinet or the House of Commons. He seems to have thought that philosophical eminence was obtainable in the same offhand fashion, and that a brilliant style

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"In the same way, it's important that you not get on the internet and look anybody up ... Other members of the juries that I've had have looked up people involved in the trial. They've looked up legal principles ... Don't do it. If you've got a problem, put it in a note, give it to the bailiff. He can give it to me. I can, if necessary, discuss it with [counsel] and I can give you appropriate directions.

… Don't do the things that I've urged you not to do. As I say, it's an offence at law to look up anything about the defendant. It's an offence by way of contempt of court if you look up anything about any of the witnesses or about any of the people or legal principles because I've given you clear directions about that issue so don't run the risk of that happening. I'm sorry to have gone on about it so long, but it's a real problem with–particularly with electronic searches that are available now and effects [sic] potentially the fairness of criminal trials …

Can I also say this: that if anybody on the jury lets you know that he or she has looked up anything on the internet or has spoken to their family about the case, just quietly give the bailiff a note saying there's something I want to discuss. I can get you in here and find out what's going on and I can decide how to deal with it, so if one person disobeys that direction, I hope that the others can, by dealing with it in that matter, overcome it.

…

There have been cases where trials have been aborted and convictions have been quashed. Retrials have been ordered because juries have made such private investigations, so don't view or visit the location where events took place. Don't consult any source, whether it's a newspaper or a dictionary or reference material or the internet or any other source of information. Don't conduct your own research on any matters of law."

The Crown then opened the case. The complainant K gave evidence. K's evidence, including cross-examination, continued from Tuesday, 13 October until the morning on Wednesday, 14 October 2020. A series of other witnesses gave evidence for the rest of 14 October 2020. On Thursday, 15 October 2020, due to problems with production of the transcript of evidence, there were discussions between the trial judge and counsel about legal issues in the absence of the jury. On Friday, 16 October 2020, these discussions continued. Thereafter, on that day, the trial judge directed acquittals on counts 8, 10, 11, 12, 13 and 23. The Crown prosecutor and counsel for the appellant then addressed the jury. The trial judge summed up to the jury, finishing the summing up before lunch on Friday, 16 October 2020, and the jury retired for deliberations.

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 stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with his reason therefor.

12. There shall be a seal of the state, which shall be kept by the governor, and used by him officially; and shall be called "The Great Seal of the State of Ohio."

13. All grants and commissions shall be issued in the name and by the authority of the state of Ohio; sealed with the great seal; signed by the governor, and countersigned by the secretary of state.

14. No member of congress, or other person holding office under the authority of this state, or of the United States, shall execute the office of the governor, except as herein provided.

15. In case of the death, impeachment, resignation, removal or other disability of the governor, the powers and duties of the office, for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the lieutenant governor.

16. The lieutenant governor shall be president of the senate, but shall vote only when the senate is equally divided; and in case of his absence, or impeachment, or when he shall exercise the office of governor, the senate shall choose a president pro tempore.

17. If the lieutenant governor, while executing the office of governor, shall be impeached, displaced, resign or die, or otherwise become incapable of performing the duties of the office, the president of the senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the senate, for any of the above causes, shall be rendered incapable of performing the duties pertaining to the office of governor, the same shall devolve upon the speaker of the house of representatives.

18. Should the office of auditor, treasurer, secretary, or attorney general become vacant, for any of the causes specified in the fifteenth section of this article, the governor shall fill the vacancy until the disability is removed, or a successor elected and qualified. Every such vacancy shall be filled by election, at the first general election that occurs more than thirty days after it shall have happened; and the person chosen shall hold the office for the full term fixed in the second section of this article.

19. The officers mentioned in this article shall, at stated times receive for their services, a compensation to be established by law which shall neither be increased nor diminished during the period for which they have been elected.

20. The officers of the executive department, and of the public state institutions shall, at least five days preceding each regular session of the General Assembly, severally report to the governor, who shall transmit such reports, with his message, to the General Assembly.

Judicial.

1. The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law. (Adopted Sept. 3, 1912.)

83


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 would justify a man in laying down the law to metaphysicians as well as to diplomatists and politicians. His philosophical writings are equally superficial and arrogant, though they show here and there the practised debater's power of making a good point against his antagonist without really grasping the real problems at issue.

Bolingbroke received a pardon in 1723, and returned to England, crossing Atterbury, who had just been convicted of treasonable practices. In 1725 Bolingbroke settled at Dawley, near Uxbridge, and for the next ten years he was alternately amusing himself in playing the retired philosopher, and endeavouring, with more serious purpose, to animate the opposition to Walpole. Pope, who was his frequent guest, sympathized with his schemes, and was completely dazzled by his eminence. He spoke of him with bated breath, as a being almost superior to humanity. "It looks," said Pope once, "as if that great man had been placed here by mistake. When the comet appeared a month or two ago," he added, "I sometimes fancied that it might be come to carry him home, as a coach comes to one's door for other visitors." Of all the graceful compliments in Pope's poetry, none are more ardent or more obviously sincere than those addressed to this "guide, philosopher, and friend." He delighted to bask in the sunshine of the great man's presence. Writing to Swift in 1728, he (Pope) says that he is holding the pen "for my Lord Bolingbroke," who is reading your letter between two haycocks, with his attention occasionally distracted by a threatening shower. Bolingbroke is acting the temperate recluse, having nothing for dinner but mutton-broth, beans and bacon, and a barndoor fowl. Whilst his lordship is running after a cart, Pope snatches a moment to tell how the day before this noble farmer had

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Rh mansion; doubtless we should be received in summer fashion —in the garden; we would stand in a row, all the gentlemen in swallow-tail coats, white kids, and white neck-ties, and the ladies in light-colored silks, or something of that kind; at the proper moment—12 meridian—the Emperor, attended by his suite arrayed in splendid uniforms, would appear and walk slowly along the line, bowing to some, and saying two or three words to others. At the moment his Majesty appeared, a universal, delighted, enthusiastic smile ought to break out like a rash among the passengers—a smile of love, of gratification, of admiration—and with one accord, the party must begin to bow—not obsequiously, but respectfully, and with dignity; at the end of fifteen minutes the Emperor would go in the house, and we could run along home again. We felt immensely relieved. It seemed, in a manner, easy. There was not a man in the party but believed that with a little practice he could stand in a row, especially if there were others along; there was not a man but believed he could bow without tripping on his coat tail and breaking his neck; in a word, we came to believe we were equal to any item in the performance except that complicated smile. The Consul also said we ought to draft a little address to the Emperor, and present it to one of his aides-de-camp, who would forward it to him at the proper time. Therefore, five gentlemen were appointed to prepare the document, and the fifty others went sadly smiling about the ship—practicing, During the next twelve hours we had the general appearance, somehow, of being at a funeral, where every body was sorry the death had occurred, but glad it was over—where every body was smiling, and yet broken-hearted.

A committee went ashore to wait on his Excellency the Governor-General, and learn our fate. At the end of three hours of boding suspense, they came back and said the Emperor would receive us at noon the next day—would send carriages for us—would hear the address in person. The Grand Duke Michael had sent to invite us to his palace also. Any man could see that there was an intention here to show that Russia’s


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392 friendship for America was so genuine as to render even her private citizens objects worthy of kindly attentions.

At the appointed hour we drove out three miles, and assembled in the handsome garden in front of the Emperor’s palace.

We formed a circle under the trees before the door, for there was no one room in the house able to accommodate our three-score persons comfortably, and in a few minutes the imperial family came out bowing and smiling, and stood in our midst. A number of great dignitaries of the Empire, in undress uniforms, came with them. With every bow, his Majesty said a word of welcome. I copy these speeches. There is character in them—Russian character—which is politeness itself, and the genuine article. The French are polite, but it is often mere ceremonious politeness. A Russian imbues his polite things with a heartiness, both of phrase and expression, that compels


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84 it. This whole system of sacred and profane learning is knitted and bound together by the sanction of religion; every part of it is an article of faith, and its science is as unchangeable as its divinity. Learning is confined by it to the Brahmins, the high priests of the system, by whom and for whom it was devised. All the other classes are condemned to perpetual ignorance and dependence; their appropriate occupations are assigned by the laws of caste, and limits are fixed, beyond which no personal merit or personal good fortune can raise them. The peculiar wonder of the Hindu system is, not that it contains so much or so little true knowledge, but that it has been so skilfully contrived for arresting the progress of the human mind, as to exhibit it at the end of two thousand years fixed at nearly the precise point at which it was first moulded. The Mohammedan system of learning is many degrees better, and “resembles that which existed among the nations of Europe before the invention of printing;” so far does even this fall short of the


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 2. The supreme court shall, until otherwise provided by law, consist of a chief justice and six judges, and the judges now in office in that court shall continue therein until the end of the terms for which they were respectively elected, unless they are removed, die or resign. A majority of the supreme court shall be necessary to constitute a quorum or to pronounce a decision, except as hereinafter provided. It shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in all cases involving questions under the constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the courts of appeals, and such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law. It shall hold at least one term in each year at the seat of government, and such other terms, there or elsewhere, as may be provided by law. The judges of the supreme court shall be elected by the electors of the state at large for such term, not less than six years, as may be prescribed by law, and they shall be elected, and their official term shall begin, at such time as may now or hereafter be fixed by law. Whenever the judges of the supreme court shall be equally divided in opinion as to the merits of any case before them and are unable for that reason to agree upon a judgment, that fact shall be entered upon the record and such entry shall be held to constitute an affirmance of the judgment of the court below. No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void. In cases of public or great general interest the supreme court may, within such limitation of time as may be prescribed by law, direct any court of appeals to certify its record to the supreme court, and may review, and affirm, modify or reverse the judgment of the court of appeals. All cases pending in the supreme court at the time of the adoption of this amendment by the people, shall proceed to judgment in the manner provided by existing law. No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court. (Adopted Sept. 3, 1912.)

3. One resident judge of the court of common pleas, and such additional resident judge or judges as may be provided by law, shall be elected in each county of the state by the electors of such county; and as many courts or sessions of the court of common pleas as are necessary, may be held at the same time in any county. Any judge of the court of common pleas may temporarily preside and hold court in any county; and until the general assembly shall make adequate provision therefor, the chief justice of the supreme court of the state shall pass upon the disqualification or disability of any judge of the court of common pleas, and he may assign any judge to any county to hold court therein. (Adopted Sept. 3, 1912.)

4. The jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law.

5. [Repealed October 9, 1883; 80 v. 382.]

6. The state shall be divided into appellate districts of compact territory bounded by county lines, in each of which there shall be a court of appeals consisting of three judges, and until altered by law the circuits in which the circuit courts are now held shall constitute the appellate districts aforesaid. The judges of the circuit courts now residing in their respective districts shall

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Rh belief in their sincerity. As I was saying, the Czar punctuated his speeches with bows:

“Good morning—I am glad to see you—I am gratified—I am delighted—I am happy to receive you!”

All took off their hats, and the Consul inflicted the address on him. He bore it with unflinching fortitude; then took the rusty-looking document and handed it to some great officer or other, to be filed away among the archives of Russia—in the stove. He thanked us for the address, and said he was very much pleased to see us, especially as such friendly relations existed between Russia and the United States. The Empress said the Americans were favorites in Russia, and she hoped the Russians were similarly regarded in America. These were all the speeches that were made, and I recommend them to parties who present policemen with gold watches, as models of brevity and point. After this the Empress went and talked sociably (for an Empress) with various ladies around the circle; several gentlemen-entered into a disjointed general conversation with the Emperor; the Dukes and Princes, Admirals and Maids of Honor dropped into free-and-easy chat with first one and then another of our party, and whoever chose stepped forward and spoke with the modest little Grand Duchess Marie, the Czar’s daughter. She is fourteen years old, light-haired, blue-eyed, unassuming and pretty. Every body talks English.

The Emperor wore a cap, frock coat and pantaloons, all of some kind of plain white drilling—cotton or linen—and sport-


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Rh in the land, was a man who could open his lips and ships would fly through the waves, locomotives would speed over the plains, couriers would hurry from village to village, a hundred telegraphs would flash the word to the four corners of an Empire that stretches its vast proportions over a seventh part of the habitable globe, and a countless multitude of men would spring to do his bidding. I had a sort of vague desire to examine his hands and see if they were of flesh and blood, like other men’s. Here was a man who could do this wonderful thing, and yet if I chose I could knock him down. The case was plain, but it seemed preposterous, nevertheless—as preposterous as trying to knock down a mountain or wipe out a continent. If this man sprained his ankle, a million miles of telegraph would carry the news over mountains—valleys—uninhabited deserts—under the trackless sea—and ten thousand newspapers would prate of it; if he were grievously ill, all the nations would know it before the sun rose again; if he dropped lifeless where he stood, his fall might shake the thrones of half a world! If I could have stolen his coat, I would have done it. When I meet a man like that, I want something to remember him by.

As a general thing, we have been shown through palaces by some plush-legged filagreed flunkey or other, who charged a franc for it; but after talking with the company half an hour, the Emperor of Russia and his family conducted us all through their mansion themselves. They made no charge. They seemed to take a real pleasure in it.

We spent half an hour idling through the palace, admiring the cosy apartments and the rich but eminently home-like appointments of the place, and then the Imperial family bade our party a kind good-bye, and proceeded to count the spoons.

An invitation was extended to us to visit the palace of the eldest son, the Crown Prince of Russia, which was near at hand. The young man was absent, but the Dukes and Countesses and Princes went over the premises with us as leisurely as was the case at the Emperor’s, and conversation continued as lively as ever.


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396 It was a little after one o’clock, now. We drove to the Grand Duke Michael’s, a mile away, in response to his invitation, previously given.

We arrived in twenty minutes from the Emperor’s. It is a lovely place. The beautiful palace nestles among the grand old groves of the park, the park sits in the lap of the picturesque crags and hills, and both look out upon the breezy ocean. In the park are rustic seats, here and there, in secluded nooks that are dark with shade; there are rivulets of crystal water; there are lakelets, with inviting, grassy banks; there are glimpses of sparkling cascades through openings in the wilderness of foliage; there are streams of clear water gushing from mimic knots on the trunks of forest trees; there are miniature marble temples perched upon gray old crags; there are airy lookouts whence one may gaze upon a broad expanse of landscape and ocean. The palace is modeled after the choicest forms of Grecian architecture, and its wide colonnades surround a central court that is banked with rare flowers that fill the place with their fragrance, and in their midst springs a fountain that cools the summer air, and may possibly breed mosquitoes, but I do not think it does.

The Grand Duke and his Duchess came out, and the presentation ceremonies were as simple as they had been at the Emperor’s. In a few minutes, conversation was under way, as before. The Empress appeared in the verandah, and the little Grand Duchess came out into the crowd. They had beaten us there. In a few minutes, the Emperor came himself on horseback. It was very pleasant. You can appreciate it if you have ever visited royalty and felt occasionally that possibly you might be wearing out your welcome—though as a general thing, I believe, royalty is not scrupulous about discharging you when it is done with you.

The Grand Duke is the third brother of the Emperor, is about thirty-seven years old, perhaps, and is the princeliest figure in Russia. He is even taller than the Czar, as straight as an Indian, and bears himself like one of those gorgeous knights we read about in romances of the Crusades. He looks


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Rh knowledge with which Europe is now blessed. These are the systems under the influence of which the people of India have become what they are. They have been weighed in the balance, and have been found wanting. To perpetuate them, is to perpetuate the degradation and misery of the people. Our duty is not to teach, but to unteach them, not to rivet the shackles which have for ages bound down the minds of our subjects, but to allow them to drop off by the lapse of time and the progress of events.

If we turn from Sanskrit and Arabic learning, and the state of society which has been formed by it, to western learning, and the improved and still rapidly improving condition of the western nations, what a different spectacle presents itself! Through the medium of England, India has been brought into the most intimate connection with this fa-


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Rh “This does not answer—this isn’t the style of king that I am acquainted with.”

When they swagger around the stage in jeweled crowns and splendid robes, I shall feel bound to observe that all the Emperors that ever I was personally acquainted with wore the commonest sort of clothes, and did not swagger. And when they come on the stage attended by a vast body-guard of supes in helmets and tin breastplates, it will be my duty as well as my pleasure to inform the ignorant that no crowned head of my acquaintance has a soldier any where about his house or his person.

Possibly it may be thought that our party tarried too long, or did other improper things, but such was not the case. The company felt that they were occupying an unusually responsible position—they were representing the people of America, not the Government—and therefore they were careful to do their best to perform their high mission with credit.

On the other hand, the Imperial families, no doubt, consid-


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 The question was so sudden and unexpected that Clara gave quite a jump in her chair. “I—I—I hardly ever have thought of your nephew Charles."

"No? Oh, you must think him well over, for I want to speak to you about him.“

“To me? But why?"

“It seemed to me most delicate. You see, Clara, the matter stands in this way. It is quite possible that I may soon find myself in a completely new sphere of life, which will involve fresh duties and make it impossible for me to keep up a household which Charles can share.”

Clara stared. Did this mean that she was about to marry again? What else could it point to?

"Therefore Charles must have a household of his own. That is obvious. Now, I don’t approve of bachelor establishments. Do you?"

“Really, Mrs. Westmacott, I have never thought of the matter.”

"Oh, you little sly puss! Was there ever a girl who never thought of the matter? I think that a young man of six-and-twenty ought to be married.”

Clara felt very uncomfortable. The awful thought had come upon her that this ambassadress had come to her aa a proxy with a proposal of marriage. But how could that be?


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 She had not spoken more than three of four times with her nephew, and knew nothing more of him than he had told her on the evening before. It was impossible, then. And yet what could his aunt mean by this discussion of his private affairs?

“Do you not think yourself,” she persisted, “that a young man of six-and-twenty is better married?"

“I should think that he is old enough to decide for himself."

“Yes, yes. He has done so. But Charles is just a little shy, just a little slow in expressing himself. I thought that I would pave the way for him. Two women can arrange these things so much better. Men sometimes have a difficulty in making themselves clear."

"I really hardly follow you, Mrs. Westmacott,” cried Clara in despair.

“He has no profession. But he has nice tastes. He reads Browning everynight. And he is most amazingly strong. When he was younger we used to put on the gloves together, but I cannot persuade him to now, for he says he cannot play light enough. I should allow him five hundred, which should be enough at first.”

“My dear Mrs. Westmacott,” cried Clara, “I assure you that I have not the least idea what it is that you are talking of.”


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Rh to his carriage for him to walk on, though I have seen him walk there without any carpet when he was not on business. I thought may be he had what the accidental insurance people might call an extra-hazardous polish (“policy”—joke, but not above mediocrity,) on his boots, and wished to protect them, but I examined and could not see that they were blacked any better than usual. It may have been that he had forgotten his carpet, before, but he did not have it with him, anyhow. He was an exceedingly pleasant old gentleman; we all liked him, especially Blucher. When he went away, Blucher invited him to come again and fetch his carpet along.

Prince Dolgorouki and a Grand Admiral or two, whom we had seen yesterday at the reception, came on board also. I was a little distant with these parties, at first, because when I have been visiting Emperors I do not like to be too familiar with people I only know by reputation, and whose moral characters and standing in society I can not be thoroughly acquainted with. I judged it best to be a little offish, at first. I said to myself, Princes and Counts and Grand Admirals are very well, but they are not Emperors, and one can not be too particular about who he associates with.

Baron Wrangel came, also. He used to be Russian Ambassador at Washington. I told him I had an uncle who fell down a shaft and broke himself in two, as much as a year before that. That was a falsehood, but then I was not going to let any man eclipse me on surprising adventures, merely for the want of a little invention. The Baron is a fine man, and is said to stand high in the Emperor’s confidence and esteem.

Baron Ungern-Sternberg, a boisterous, whole-souled old nobleman, came with the rest. He is a man of progress and enterprise—a representative man of the age. He is the Chief Director of the railway system of Russia—a sort of railroad king. In his line he is making things move along in this country. He has traveled extensively in America. He says he has tried convict labor on his railroads, and with perfect success. He says the convicts work well, and are quiet and peaceable. He observed that he employs nearly ten thousand of them now.


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402 This appeared to be another call on my resources. I was equal to the emergency. I said we had eighty thousand convicts employed on the railways in America—all of them under sentence of death for murder in the first degree. That closed him out.

We had General Todtleben (the famous defender of Sebastopol, during the siege,) and many inferior army and also navy officers, and a number of unofficial Russian ladies and gentlemen. Naturally; a champagne luncheon was in order, and was accomplished without loss of life. Toasts and jokes were discharged freely, but no speeches were made save one thanking the Emperor and the Grand Duke, through the Governor-General, for our hospitable reception, and one by the Governor-General in reply, in which he returned the Emperor’s thanks for the speech, etc., etc.


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 "Do you think your sister Ida would have my nephew Charles?”

Her sister Ida? Quite a little thrill of relief and of pleasure ran through her at the thought. Ida and Charles Westmacott. She had never thought of it. And yet they had been a good deal together. They had played tennis. They had shared the tandem tricycle. Again came the thrill of joy, and close at its heels the cold questionings of conscience. Why this joy? What was the real source of it? Was it that deep down, somewhere pushed back in the black recesses of the soul, there was the thought lurking that if Charles prespered in his wooing then Harold Denver would still be free? How mean, how unmaidenly, how unsisterly the thought! She crushed it down and thrust it aside, but still it would push up its wicked little head. She crimsoned with shame at her own baseness, as she turned once more to her companion.

“I really do not know,” she said,

“She is not engaged?"

“Not that I know of.”

“You speak hesitatingly.”

“Because I am not sure. But he may ask. She cannot but be flattered.”

“Quite so. I tell him that it is the most practical compliment which a man can pay to a woman. He is a little shy, but when he


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E returned to Constantinople, and after a day or two spent in exhausting marches about the city and voyages up the Golden Horn in caiques, we steamed away again. We passed through the Sea of Marmora and the Dardanelles, and steered for a new land—a new one to us, at least—Asia. We had as yet only acquired a bowing acquaintance with it, through pleasure excursions to Scutari and the regions round about.

We passed between Lemnos and Mytilene, and saw them as we had seen Elba and the Balearic Isles—mere bulky shapes, with the softening mists of distance upon them—whales in a fog, as it were. Then we held our course southward, and began to “read up” celebrated Smyrna.

At all hours of the day and night the sailors in the forecastle amused themselves and aggravated us by burlesquing our visit to royalty. The opening paragraph of our Address to the Emperor was framed as follows:

“We are a handful of private citizens of America, traveling simply for recreation—and unostentatiously, as becomes our unofficial state—and, therefore, we have no excuse to tender for presenting ourselves before your Majesty, save the desire of offering our grateful acknowledgments to the lord of a realm, which, through good and through evil report, has been the steadfast friend of the land we love so well.”

The third cook, crowned with a resplendent tin basin and


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 a reflected glow, and it was hard to say who had most pleasure from the game, those who played or those who watched.

Mrs. Westmacott had just finished a set when she caught a glimpse of Clara Walker sitting alone at the farther end of the ground. She ran down the court, cleared the net to the amazement of the visitors, and seated herself beside her. Clara’s reserved and refined nature shrank somewhat from the boisterous frankness and strange manners of the widow, and yet her feminine instinct told her that beneath all her peculiarities there lay much that was good and noble. She smiled up at her, therefore, and nodded a greeting.

“Why aren’t you playing, then? Don’t, for goodness’ sake, begin to be languid and young ladyish! When you give up active sports you give up youth.”

"I have played a set, Mrs. Westmacott.”

“That's right, my dear.” She sat down beside her, and tapped her upon the arm with her tennis racket. “I like you, my dear, and I am going to call you Clara. You are not as aggressive as I should wish, Clara, but still I like you very much. Self-sacrifice is all very well, you know, but we have had rather too much of it on our side, and should like to see a little on the other. What do you think of my nephew Charles?”


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86 voured quarter of the globe, and the particular claims of the English language as an instrument of Indian improvement have thus become a point of paramount importance. These claims have been thus described by who will be admitted to have made good his title to an opinion on the subject:—

“How then stands the case? We have to educate a people who cannot at present be educated by means of their mother tongue; we must teach them some foreign language. The claims of our own language it is hardly necessary to recapitulate; it stands pre-eminent even among the languages of the West; it abounds with works of imagination not inferior to the noblest which Greece has bequeathed to us; with models of every species of eloquence; with historical compositions which, considered merely as narratives have seldom been surpassed, and which, considered as vehicles of ethical and political instruction, have never been equalled; with just and lively representations of human life and human nature; with the most profound speculations on metaphysics, morals, government, jurisprudence, trade; with full and correct information respecting every experimental science which tends to preserve the health, to increase the com-


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404 wrapped royally in a table-cloth mottled with grease-spots and coffee stains, and bearing a sceptre that looked strangely like a belaying-pin, walked upon a dilapidated carpet and perched himself on the capstan, careless of the flying spray; his tarred and weather-beaten Chamberlains, Dukes and Lord High Admirals surrounded him, arrayed in all the pomp that spare tarpaulins and remnants of old sails could furnish. Then the visiting “watch below,” transformed into graceless ladies and uncouth pilgrims, by rude travesties upon waterfalls, hoopskirts, white kid gloves and swallow-tail coats, moved solemnly up the companion way, and bowing low, began a system of complicated and extraordinary smiling which few monarchs could look upon and live. Then the mock consul, a slush-plastered deck-sweep, drew out a soiled fragment of paper and proceeded to read, laboriously

“To His Imperial Majesty, Alexander II., Emperor of Russia:

“We are a handful of private citizens of America, traveling simply for recreation,—and unostentatiously, as becomes our unofiicial state—and therefore, we have no excuse to tender for presenting ourselves before your Majesty—”

The Emperor—“Then what the devil did you come for?”

—“Save the desire of offering our grateful acknowledgments to the lord of a realm which—”

The Emperor—“Oh, d—n the Address!—read it to the


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Rh police. Chamberlain, take these people over to my brother, the Grand Duke’s, and give them a square meal. Adieu! I am happy—I am gratified—I am delighted—I am bored. Adieu, adieu—vamos the ranch! The First Groom of the Palace will proceed to count the portable articles of value belonging to the premises.”

The farce then closed, to be repeated again with every change of the watches, and embellished with new and still more extravagant inventions of pomp and conversation.

At all times of the day and night the phraseology of that tiresome address fell upon our ears. Grimy sailors came down out of the foretop placidly announcing themselves as “a handful of private citizens of America, traveling simply for recreation and unostentatiously,” etc.; the coal passers moved to their duties in the profound depths of the ship, explaining the blackness of their faces and their uncouthness of dress, with the reminder that they were “a handful of private citizens, traveling simply for recreation,” etc., and when the cry rang through the vessel at midnight: “!” the larboard watch came gaping and stretching out of their den, with the everlasting formula: “Aye


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Rh fort, or to expand the intellect of man. Whoever knows that language has ready access to all the vast intellectual wealth which all the wisest nations of the earth have created and hoarded in the course of ninety generations. It may safely be said that the literature now extant in that language is of far greater value than all the literature which three hundred years ago was extant in all the languages of the world together. Nor is this all: in India English is the language spoken by the ruling class; it is spoken by the higher class of natives at the seats of government; it is likely to become the language of commerce throughout the seas of the East; it is the language of two great European communities which are rising, the one in the south of Africa, the other in Austral-Asia,—communities which are every year becoming more important and more closely connected with our Indian Empire. Whether we look at the intrinsic value of our literature, or at the particular situation of this country, we shall see the strongest reason to think that, of all foreign tongues, the English tongue is that which would be the most useful to our native subjects.”

As of all existing languages and literatures the English is the most replete with benefit to the


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88 human race, so it is overspreading the earth with a rapidity far exceeding any other. With a partial exception in Canada, English is the language of the continent of America north of Mexico; and at the existing rate of increase there will be a hundred millions of people speaking English in the United States alone at the end of this century. In the West India islands we have given our language to a population collected from various parts of Africa, and by this circumstance alone they have been brought many centuries nearer to civilization than their countrymen in Africa, who may for ages grope about in the dark, destitute of any means of acquiring true religion and science. Their dialect is an uncouth perversion of English suited to the present crude state of their ideas, but their literature will be the literature of England, and their language will gradually be conformed to the same standard. More recently the English language has taken root in the continent of Africa itself, and a nation is being formed by means of it in the extensive territory belonging to the Cape out of a most curious mixture of different races. But the scene of its greatest triumphs will be in Asia. To the south a new continent is being peopled with the English race; to the north, an