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 legs and, using a fence rail as a pry, worked with the carcass until it went crashing over the brink. The noise startled Tuck, who looked around uneasily.

Returned to the stable he sadly salted the hide, while Tuck, surprised to find an empty stable, nickered and whinneyed and waited impatiently for his friend.

The buzzards did the rest.

For days they hung in the air over the gully. From the kitchen window Judith could see them moving on widespread wings. They would circle a while in one spot, then fly off a little distance and circle again, as though loath to give up their habits of search. The motion of these silent creatures, slow and steady, with no perceptible vibration of the sweeping, horizontal wings, was as beautiful as the flight of sea gulls. When they tilted, the sunlight caught the under side of the black wings and turned them gleaming silver. Watching the stately grace, the balanced dignity of their movements as they circled alone in the wide emptiness of the winter sky, Judith felt herself enfolded in a deep sense of calm, as though Nature had laid upon her brow a firm, soothing hand and told her to be at peace. The flight of the birds added beauty and dignity to the thought of death; and for the first time in her life it seemed a thing to be looked upon with calmness. She was affected as she might have been by a Greek tragedy or by Bach's coldly austere music. She felt no sense of shrinking, but rather a solemn uplift of the heart in the thought that some day she too would return to the ground; and that always, when she was no longer there to see it, sunshine in winter would be a lovely thing, and other buzzards, foul smelling birds though they were, would soar and tilt with incomparable grace and stateliness over other dead horses and dead dogs that like her had had their day.

After the buzzards were gone, she was still followed by the thought of death. But it was no longer a beautiful thought. She shrank from it and tried to turn her thoughts to other things.

The horse's death brought them many visits of condolence.

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 The men sat around the stove of an evening and told Jerry just what he ought to have done to save the horse and just what they themselves would have done if the horse had been theirs. Having exhausted this topic, they drifted to other things: the victories over the Germans, the high and ever climbing cost of flour, the scarcity of sugar, the unheard of prices that were being charged for overalls and shoes and stoves and hay forks and wire fencing.

"Waal, if we kin git forty cent a paound fer terbaccer this year, 'twon't pan out so bad," opined Uncle Sam Whitmarsh. "An' eggs an' butter is fetchin' a good price."

"You was allus a joker, Sam," said Columbia Gibbs, spitting into the woodbox. "You know dern well there hain't one of us in twenty'll git forty cent fer terbaccer. Mebbe a few lucky ones'll draw a big price; but the most of us'll be on'y too glad to drive back home with ten or twelve. An' if butter an' eggs is high, they hain't high compared with flour an' coffee. Afore the war I cud drive into taown with five, six dozen eggs an' the same number o' paounds o' butter, an' I cud git me a sack o' flour, a couple o' paounds o' sugar, a paound o' coffee an' a paper o' candy fer the young uns. Naow I take in that same lot o' butter an' eggs an' I can't hardly git me a sack o' dirty flour chuck full o' bran an' middlin's. I gotta go 'ithout the coffee an' sugar an' the young uns has gotta go 'ithout the candy."

He looked about the group clinchingly and made a feint of wiping away the streams of tobacco juice that had begun to dribble from the corners of his mouth.

"I wisht Roosevelt was back in agin," spoke up Gus Dibble. "When he was in the price o' mule colts was a heap better. One year I got fifty dollars fer a mule colt. An' las' year I didn't git but forty fer a better one out'n the same mare. I'd like to see Roosevelt back in."

Two weeks after Nip's death Uncle Amos Crupper received word that his son Bob had been killed, blown to pieces by an exploding shell.

The old man was broken by the news. Bob was his only

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 son, the son of the wife of his youth whose memory he had cherished for twenty years. He wandered about restlessly from neighbor to neighbor, seeking comfort and finding none. As he sat hunched over the Blackford stove, his usually erect shoulders bowed into a semi-circle, it seemed to Judith that winter had descended upon him over night, as snow falls on the hills.

She, too, as she went about her work, kept thinking of Bob—and of death.

The thought that he was dead would waylay her suddenly, startingly, and she would see him as she had known him in life, his lithe, muscular body, his boyish smile, his clear eyes, fearless and dreamy.

Once with a dustrag she slapped a fly on the wall. It fell mashed and mangled to the floor.

It came over her suddenly that he had died like that. With all his health, vigor, and charm, his power to make women love him, he had died like the fly. Some great, pitiless engine of war had mashed these things out of him and left only a few bits of stinking flesh.

"What are we all anyway but flies," she said to herself bitterly.

One morning when it was mild and the sun was shining she went out to clean the rain barrel that had grown slimy with a green scum. Bent over with her head and shoulders in the almost empty barrel, she scrubbed the sides vigorously with the scrubbing brush. When she had finished, her wrists felt weak and shaky. Taking hold of the top of the barrel with both hands she tried to tip it to drain away the dirty water and was suddenly aware that it was too heavy for her. She could not understand it. She had dumped the same barrel many times before with the greatest ease. She struggled with it and for the first time in her life felt herself overcome by a sense of physical powerlessness. Some virtue had gone out of her long, muscular arms trained from childhood to do heavy work. Her breath came in short, quick gasps and she felt her knees weaken and tremble in a way that she had never felt before.

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 When at last she succeeded in tipping the barrel and returning it to its place, she sank down on the ground gasping with exhaustion, her knees weak like water beneath her.

After that whenever she drew a full bucket of water from the well or carried slop to the hogs or stood too long over the churn or the washtub, she felt creeping over her this strange, tremulous sensation of extreme weakness. Countless times before she had known what it was to be tired. But this feeling of sinking knees, of shivering powerlessness was something new, something quite different from anything that she had experienced before in her life.

With it came an increased impatience with the chatter and wrangles of the children, a growing lack of interest in the affairs of the neighbors or even in those of her own household, a desire to retire within herself, to be alone and apart.

Ill luck seemed to love their company that winter and, like a hungry stray dog, would not leave their door. Luke Wolf said it was all because Jerry had torn the shoes from Nip's dead hoofs and later used them in shoeing Tuck.

"Nine times out o' ten," he said to Jerry impressively, "if yuh shoe a hoss with shoes taken off'n a dead animal, he'll die afore the year's out. An' if he don't die some other kind o' bad luck'll foller yuh."

Tuck did not die; but, as Luke had prophesied, other bad luck followed apace. When Jerry hauled the tobacco off to market he was caught in a drenching rain, and hundreds of pounds of what would otherwise have been a fine grade of tobacco were changed to the sort that brings a cent or two a pound. The tobacco should have been covered to protect it against such a contingency. But a tarpaulin is an expensive luxury which few tenant farmers can afford to buy. Most of them use their wives' rag carpets. But Judith had no rag carpet.

When Jerry had paid off the help that he had hired during the year and settled the store bill that had been accumulating for many months and bought some tar paper to nail over the

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 north and east sides of the house, he had a hundred and eighteen dollars left, most of which would have to go to buy another horse. Fortunately the corn crop was a fairly good one that year.

It was a hard winter, a winter of pinching and skimping and doing without, doing without sugar, doing without coffee, doing without even the salt meat to which they were accustomed, for hogs were worth too much to be consumed at home. They had to be sold to meet the exorbitant cost of shoes and overalls and underwear to keep the children warm.

Since the beginning of the war these things had become of very inferior quality. It seemed as if Jerry was always cobbling the boys' shoes and Judith always putting patches on their overalls. And in an incredibly short time their feet were on the ground again and their knees out. Like all the rest of the women, Judith pinched and contrived, tried to make clothes for the children out of old garments that were fit only for the ragbag, made flour sacks into pillow slips and even into underwear and carefully saved the smaller pieces of everything for the bedquilts that were always wearing out and having to be replaced.

As she sat by the little glass lamp of an evening making over flour sacks or mending overalls, her face had not the dull, sullen look that Jerry remembered from other times, but rather a hard, grim, half defiant expression. Watching her covertly his own face took on an ugly look.

More and more, as the days went by, she was confirmed in the stand that she had taken after getting up from her last sickbed. She was through forever, she told herself, with having children and with running any risk of having children. She wanted no more children that she could not clothe, that she could hardly feed, that were a long torture to bear and a daily fret and anxiety after they were born. Her flesh recoiled and her spirit rose in fiery protest against any further degradation and suffering. Too long she had been led along blindly. Now her eyes were open and she would be a tool no more of man's

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 lust and nature's cunning. She would see her path and choose it. She would be mistress of her own body. She would order her future life as seemed best to herself.

It was the imprint of these thoughts that Jerry saw on her face as she sat sewing under the lamp; and the covert looks that he cast at her were ugly and ill omened.

For her there was stimulation mental and physical in such thoughts, and she began to grow stronger. It was this determination stubbornly adhered to and constantly borne in mind that made her arms powerful to rub the coarse clothes up and down on the washboard, that set the dasher thudding against the bottom of the churn more noisily than need be and drew the broom with brisk, emphatic strokes across the floor. When she gathered up the dishes she slapped the plates together with the emphasis of one who is indifferent as to whether they crack or not, and when she cleaned house the dust and feathers flew mightily. At the woodpile she was merciless to the saplings and rotted fence rails that Jerry had dragged up.

Often at the end of a day of such emphatic housekeeping, the old insidious weakness would slip into her bones, her knees would tremble and sink and she would drop with sudden exhaustion into the old rocking chair.

As she lay with her head against the bit of patchwork that was tied to the back of the chair, her eyes, the only parts of her that were not tired, would wander restlessly about the walls and ceiling. The winter before, in a vain attempt to keep out the cold, she had bought for a quarter a bundle of old newspapers and pasted them over two walls and part of the ceiling. She had intended to buy another bundle and finish the job, but had never gone beyond the intention. The papers had pulled apart over the cracks between the boards, they were yellowed with smoke and blotched with rain; but they still displayed their wealth of pictures. There were pictures of society people grinning and squatting on the sand at Palm Beach, pictures of smug, well fed dignitaries of church and state, pictures of business magnates, still smugger, fatter, and more rigorously curried, pictures of kings and generals pompously pin-

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 ning medals to the coat lapels of heroes of war, well brushed and subdued for the solemn occasion, pictures of dismal, stuffy people who had been given new life by Tanlac or Lydia Pinkham's Vegetable Compound, pictures of actresses and movie stars, some simpering and insipid, others with grace and charm diffused over the pure lines of youth, pictures of people who had been killed in automobile accidents, pictures of murderers and the murdered.

Her interest was only mildly stirred by all these pictures of strange people in strange walks of life that she would never tread. They seemed, with but few exceptions, solemn and sodden creatures in no way to be envied. From them her eyes traveled with heightening interest to the streaky discolorations that the rain beating through the walls had made on the papers. There she never failed to find pictures that beguiled the eye and inspired the imagination.

Often when the children were at play out of doors she sat a long time looking at these weird freaks of water. At such times her hectic energy and the determination that lay back of it were gone, and with the graying twilight there came instead dark thoughts of the emptiness and purposelessness of life, of Bob who had died and of the death that lay in wait for her and hers. When the corners grew shadowed and the rats began to peer out of their holes with bright, furtive eyes, she would get up with a heavy sigh and begin to mix the batter for corn cakes.

As the weeks went by her relations with Jerry grew daily more strained. She rarely spoke to him except to call his attention to an empty woodbox or a broken door hinge or a loose board in the floor or the fact that the boys' feet were on the ground. Daily he grew more morose and evil tempered. A brooding animosity looked out of his eyes as he furtively followed her movements about the house. At the least excuse this smoldering fire broke out into the fierce flame of violent and brutal quarreling. The quarrels usually ended by his taking his hat and slamming the door behind him as he went to seek diversion in some neighbor's barnyard. For her there was

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 no diversion. When the quarrel was over neither of them could remember what had caused it.

Christmas brought a truce. By a tacit mutual understanding it was agreed between them that on this day, if only for the children's sake, there should be peace and some measure of goodwill.

The children were up with the dawn, uproariously and gloriously happy over the few ten cent gimcracks that Jerry had brought home the day before and that Judith had stuffed into their stockings. She caught the infection of their happiness, laughed with them over the antics of the Jack in the box and the monkey on a stick, and beguiled them with descriptions of Santa Claus and his swift reindeer, his home built of ice far up in the frozen north, his shop where he and his wife work all year to make playthings for good little boys and girls and his long, exciting gallops over the snow on Christmas Eve.

Having done up his morning chores, Jerry, feeling leisurely and luxurious in clean overalls, stretched himself in the rocking chair and listened contentedly to the prattle of the mother and children, showed the boys how to spin the tops and fell to carving them a whistle apiece to supplement the toys that Santa Claus had brought.

Annie was happy with a doll which she hugged maternally to her bosom, then absent-mindedly dragged about the floor by one leg.

Jerry had killed a hen the day before, and there was a gala dinner of stewed chicken, hominy, sweet potatoes, and a boiled pudding with sauce. They all gorged mightily.

After dinner Jerry took up his hat and strolled out through the barnyard. Judith was left alone with the children, now grown cross and fretful, the litter of broken toys and clutter of dirty dishes.

The dinner had been late, and it was after four o'clock and already growing twilight in the room before she had washed the last greasy pan. When she had finished everything and washed the table and hung up the dishrag, she pushed the frowsy strands of hair back from her face and sank into the

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Hayne J Crennan J Kiefel J

members of the jury was distracted from other evidence being adduced because the trial judge was asleep. And because the trial judge was asleep, no step was taken to refocus the jury's attention upon the evidence.

The conclusion reached by the majority in the Court of Criminal Appeal, that the jury should be taken to have paid attention to the instructions the trial judge gave during the trial, denies that there was on this account a miscarriage of justice. But it does not conclude the issue.

As noted earlier in these reasons, in considering whether there was a miscarriage of justice at the trial, attention must focus upon the respect or respects in which it is said that there was some departure from the proper conduct of the trial, rather than upon the cause of the departure. That is why, in the present cases, to focus only upon the fact that the trial judge fell asleep during some parts of the trial diverts attention from identifying whether there was some miscarriage.

What is important, in these cases, is that the jury was distracted from paying attention to all of the evidence. And it was upon the assessment of all of the evidence led at trial that the jury's verdict had to be founded. The repeated distraction of the jury from attending to the evidence at various stages of the trial, including when one of the accused was giving his evidence, constituted a miscarriage of justice.

Ensuring that the jury is not distracted from paying full attention to its task is pre-eminently a matter for the trial judge. If trial counsel is concerned that members of the jury cannot give, or are not giving, proper attention during the trial, it will be for counsel to raise that issue with the trial judge. Ordinarily, if the trial judge does not act of his or her own motion, and if trial counsel says nothing, an appellate court will not later be able to conclude that the jury did not pay attention to the evidence that was led. In particular, proffering the opinion of one or more observers about whether the jury appeared to be paying attention to proceedings would not ordinarily suffice to show that there has been a miscarriage of justice. The absence of intervention by the trial judge will usually far outweigh the value of any opinion offered by some observer after the trial is over.

In the present cases, however, the evidence that was accepted by the Court of Criminal Appeal went beyond the bald assertion of observers that the jury seemed not to have paid attention during the trial. The evidence that was led in the Court of Criminal Appeal showed that the jury was distracted from paying attention to all of the evidence and was distracted because the trial judge was asleep.

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 rocking chair. Annie began to whimper and, putting her little hand over her stomach, said that she had a pain there. She gave the child a drink of water to help dissolve the colored candy she had eaten, then took her up and rocked her, crooning a song. The boys who had been wrangling all afternoon and constantly appealing to her to settle their differences, now fell to fighting, rolling over and over on the littered floor. She got up and slapped them both smartly.

"Naow, then," she said, administering a last cuff to Billy, "you'd otta think shame to yerse'ves, the way you been a-actin'. You jes set right to work the both of you an' pick up all them things an' put 'em in the box, an' don't let me hear nary word out'n you."

They subsided from loud wails to whimpers, then set to work sullenly picking up the toys and throwing them noisily at the wooden grocery box in which she had tried to train them to keep their things. When they thought their mother was not looking, they angrily nudged and pinched each other. Then, forgetting enmity, they began to make a glorious game of it and threw the playthings in all directions, trying to hit anything but the inside of the box. She tried to tell herself that they were only children having childish fun; but to her irritable nerves they seemed like little fiends. She felt a wild impulse to turn her back on everything, even the sick baby, and flee away along the roads, into the woods, anywhere where there was quiet and peace.

She put up with the turmoil for a while, sitting with closed eyes silently rocking the little girl. To the casual eye she looked passive and acquiescent enough; but her whole body and soul were one strung up tension of screaming protest. It was not until a tin railway car hit her on the side of the head that she got up and slapped both the boys again and reduced them once more to a sullen putting away of the toys.

Jerry lurched into the house, his hat over one eye, smelling of whiskey. He shambled into a seat by the stove, and she knew by the evil looks he cast at her that he was in an ugly drunk, a strange thing for him who was usually silly and good

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 natured under the effects of alcohol. As she caught his glowering eye the smoldering sense of injury that she had been nursing all afternoon flared into hate and fury. If it came to a test of ugliness she could be more than his match, she told herself and her lips set together in grim lines.

Jerry saw the sinister setting of her mouth, and his own face darkened into a black scowl.

Annie had fallen asleep, and she slipped off the child's shoes and outer clothing and carried her into the other room. When she came back the kitchen was almost dark. Jerry still sat by the stove, his head sunk on his breast.

"Air you a-goin' to do the milkin' to-night?" she asked in a dry, dead voice.

"No, I hain't."

She threw on an old cap and jacket, took up the milk bucket with an emphatic rattle and bang and went out, slamming the door so that the house shook.

When she came in again the room was so dark that she could hardly see the outlines of things. The boys had dropped asleep on the old sofa behind the stove. The fire had gone low and the room was chilly. Jerry still sat by the stove, his head sunk lower on his breast.

She lit the lamp, strained the milk and mixed the corn cake batter, then came by the stove to make up the fire. He bulked obstinately between her and the woodbox. For a minute tense with their mutual aversion she stood waiting for him to move.

"Air you a-goin' to move or hain't you?" she asked at last in the same dry, dead voice.

He glanced up at her with a hateful leer, then dropped his head again to his breast.

"I hain't."

For another moment she stood eyeing him with a look of exasperation mingled with cold despisal. Then red fury burst in her and she grasped the handle of the stove lifter.

"You git out o' that chair, you damn filthy haound. Hain't it enough that I gotta spend the hull day scrapin' greasy burnt pans an' puttin' up with them pesterin' young uns, 'ithout havin'

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 you lurchin' in here with a dirty drunk an' plantin' yer carcass right where I wanta git the supper? I hain't in no humor to put up with none o' yer drunken sulks. You git away from this yer stove an' do it mighty quick too."

He did not move nor even glance at her. He bulked big and sullen, a silent affront.

Trembling all over she uttered a scream of rage and swung the stove lifter in fury. It descended sharply on his skull.

With a thick curse he sprang up, wrenched the stove lifter from her hand and flung it to the other end of the room. It fell into a pan of milk and the milk splashed in every direction. Then, grasping her by the shoulders, he began to shake her. He shook her so violently that her teeth chattered and her furious screams of rage came in a shrill tremolo hideous to hear. Like a tigress she struggled in his grasp. If she had had a knife she would have plunged it into him.

Her frenzied struggles drew them close to the wall; and it was the sound of her head beating with a hollow noise against the boards that at last penetrated his drunken fury and brought him to his senses. With the movement of one who drops hot iron, he let fall his hands from her shoulders and fled out into the darkness, leaving the door swinging open behind him.

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night she set up an old stretcher in the kitchen and made herself a bed out of buggy robes and ragged quilts that had been discarded and used as pads on the wagon seat. She used it the next night and the night after that. It was a chilly and uncomfortable bed and on cold nights she had to sleep in all her clothes; but week after week went by and she showed no signs of wishing to leave it. After a few contrite but clumsy attempts at reconciliation, Jerry, too, took the stretcher as a thing accepted and permanent.

A sort of cold respect for each other grew up between them after the quarrel on Christmas day. To both it had been a warning of the abyss toward which they were tending, and they strove to maintain the outer decencies of human intercourse. This was best done by avoiding each other, having little to say and tending strictly to their own affairs, interfering as little as possible with those of the other. After their long siege of violent quarreling and mutual recrimination, this silence that had settled down between them seemed almost like peace. But at meals, over the corn cakes and rank salt hogmeat, they looked at each other with hard, inimical eyes. When they spoke it was in tones flat and dry from which all life had gone. A dreary oppression, dull, heavy and deadening, weighed upon the breasts of both of them, went with Jerry to the field and stayed with Judith as she shambled about the kitchen. When he came in at night from the field she rarely spoke or looked at him. Silently she slapped the corn cakes and fried meat on his plate and they ate in a hostile silence which was not disguised by the prattle and clamor of the children.

The stimulation that had come to Judith out of her determination to have no more children died away as all stimulation must, leaving her listless and slack. Daily she grew more slovenly about her work. More and more her mind turned in

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 upon itself, indifferent to her surroundings, thinking its own thoughts. Through the dismal, shut-in months of late winter and inclement spring she gradually drifted into that way of life, perhaps because it was the only way in which she could continue to endure the burden of existence.

When spring came at last in earnest and the mud dried up, Hat came quite often to visit her and talked glibly of Luke's injustices, of troubles with chickens and geese, of paper patterns and calicoes and the latest bulletins from the "Farm Wife's Friend," and of new songs that she had learned for the violin. She was rather glad of the break these visits made in her monotony and envied Hat her diversity of interests.

Once Hat came over with the triumphant news that she now had a bank account of her own. She had sold the bay mare which was, she declared, her rightful property; and before Luke could get hold of the money had taken it to Clayton and deposited it.

"An' naow," she concluded, "I'll hev sumpin' woth while to think about, seein' haow much I kin put to it."

Once she brushed a spider from her skirt.

"There, naow, Judy, that means a new dress. It's a sure sign. Jes fer that I'll drive into taown to-morrer when Luke's to work an' buy me the goods. Las' week I seen jes the piece I been a-wantin'."

And in truth Hat blossomed that spring in new dresses, frilled aprons and sunbonnets. Preoccupied though Judith was with her own misery, she could not help sensing a change in the bold, dark, childless woman. Her talk consisted mainly of complaints about one thing and another; and yet she gave Judith the feeling that she was especially well satisfied with life and with herself. She seemed more than usually self-assertive and blatant. She peered with more insistent curiosity into all the details of her neighbor's household. Shafts of excess vitality radiated from her and invaded irritatingly the younger woman's languor and listlessness. Often in her presence Judith was seized by a shrinking feeling as though she was a rabbit and a bird of prey was hovering above her.

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 Sometimes a strange look sprang out of Hat's eyes, a look at once questioning, cunning, mocking, and triumphant. It flashed only for the swiftest moment, then retired behind the mask of impassivity with which country people cover their faces.

It was in April that they took Joe Barnaby's wife, Bessie Maud, away to the insane asylum. For a long time she had been given to fits of destructiveness, when she would break dishes, smash window panes and try to tear up the furniture. These fits had of late been more frequent and violent. One day in April she was seized with this urge to destroy, and building a bonfire in the yard had thrown onto it chairs, bedding, and clothes. She had done such things before; but this time her mania had taken a worse turn. Joe, seeing the smoke from the fire and knowing only too well what it meant, had run up just in time to save the baby, which she was about to throw into the flames. That night they took her away to the asylum. It was too bad, the neighbors all told each other. But it wasn't as bad as it would have been a few years earlier when the children were all small. Now Ruby, the eldest girl, was eleven and big enough to cook the meals and take care of the baby; and at last Joe would know what it was to have peace in his house, and that was something.

One Saturday afternoon in May Jerry had gone to town for groceries and was late getting home. When Judith had given the children their supper and they had run away to play she sat on the doorstep to watch the sunset, leaving the flies to swarm over the unwashed dishes. It occurred to her that perhaps Bessie Maud had not been able to draw comfort out of the sunset and the late twitter of birds, and that was why life had gone so hard with her.

The sky was streaked with bands of light cirrus cloud, like sheep's wool washed and teased apart. White and fleecy and ranked in regular rows, they spread out over half the heavens like a great feather fan. Toward the earth they gradually thickened until they formed a solid bank. As the sun sank behind this bank, the light, fleecy clouds, which grew sparser,

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 finer and whiter as they neared the zenith, took on a soft flush that turned the whole western sky into a harmony of faint rose and tender blue.

Jabez Moorhouse, passing with a hayfork over his shoulder, stopped for a few moments' chat; and they looked at the sky together, talking of crops and of rain.

As they looked the faint, frail pink gradually deepened into a richer rose, then glowed for a few passionate moments the color of intense flame. The little delicate shreds high up in the sky were each a slender whiff of spun gold, fine and pure. The under edges of the clouds burned with the amber and scarlet of flame against a background of shaded grays and purples. The grayish purple bank that lay along the horizon was slashed here and there by bright swords of fire. The burning clouds hung low, as if one might reach up and touch them. A rosy flush hung over everything.

It seemed as if no color could be warmer, deeper, richer. And yet incredibly as they gazed it grew before their eyes richer, warmer, deeper, more vivid and intense, more full of living fire, until Judith involuntarily held her breath in sympathy with nature in this her supreme moment.

Short-lived it was, like every other supreme moment. A second after it had reached the height of its intensity it began to fade and fall away into ashes. As if a cold breath had passed over them, the little tendrils of spun gold in the zenith turned almost instantly to gray. Lower down the deeper colors lost their glow more slowly, melting back into the surrounding purple. Soon there was left nothing but a somber interweaving of purple gray and dull magenta.

"It's a heap like a man's life, hain't it," said Jabez, spitting into the grass. "It begins happy an' simple, like them innocent pinks an' blues; then turns flame colored when he grows to be a man an' learns to know the love o' wimmin. But it don't stay that color long. Fust thing you know it's gray, like his hair, what he has left of it. Yaas, Judy, the young time's the on'y time. It's the same in dawgs an' mules, an' the breath they draw hain't no diff'rent from ourn."

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 Looking at his bowed knees and shoulders, his great seamed hands, his weatherbeaten face and the grizzled locks that curled behind his big ears and straggled over the brick-red creases of his neck, she thought how coarsened was every part of him except the fine, delicate lines about his mouth.

"Hain't life woth livin', Uncle Jabez?" she asked.

He laughed a short, harsh laugh and fell silent.

"Waal, I dunno, Judy," he said at last, meditatively shifting his quid of tobacco. "I reckon it makes a big diff'rence who you live it with an' a bigger diff'rence yet what work yuh lay yer hand to. Both o' them things, as I see it, is a matter of luck. An' if luck hain't with yuh—"

"Luck hain't been with you, Uncle Jabez?"

"Well, I reckon not. When I was a young feller I dearly loved to play on the fiddle. I thought about fiddlin' all day an' dreamed about it all night. But there wa'n't nobody to learn me haow to play, an' I didn't have much chanct to try to learn myse'f, 'cause as soon as I was big enough I had to make a hand in the field same's other boys. I was raised up in one o' the dark counties where they grow the dark terbaccer.

"When I was nineteen I married a purty, light-headed little gal, an' for a while I forgot all about the fiddle. I loved that woman, Judy. I poured out my heart like water for her. After a while I faound out she liked another feller better'n me, an' I told her she'd best go off with him. After she was gone I learned I'd been the laughin' stock o' the whole countryside fer months. I was the last to find out about the other feller. Sech things, you know, Judy, comes to every pair of ears but one."

He paused and looked meaningly at her. She avoided his looks, pulled a blade of ribbon grass and began splitting it between her long fingers.

"Well," he went on, "when I faound that out I took my clothes on the end of a stick an' come over here where nobody knowed me. Since then I've lived a spell with diff'rent wimmin' but I hain't never let none of 'em git a holt on the tender end o' my feelin's. They cud quit me termorrer or hev all the

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 other men they liked fer all o' me. By sech way o' livin' a man gits peace, but not much besides. Wimmin won't stay long with a man that feels that way. Naow, I'm old an' eat my morsel alone, I feel more satisfied than when I had a woman in the house. I kin go an' come when I like, eat when I like, smoke an' drink all I like, set over the stove of evenin's as late as I like, work as little as I like. Sech life suits me purty good."

He paused and looked at her with a fine, sad smile of gentle irony. How delicate, how inexpressibly fine and delicate, she thought, were the lines about his mouth.

"Which would have meant more to you," she asked, "the fiddle or the woman?"

He came and sat down on the step beside her.

"I reckon the fiddle, Judy. The world's chuck full o' wimmin; but a man hain't got but one set o' gifts. If I could a learnt to play the fiddle good I'd like enough forgot her long ago an' loved some other woman. As it was, I couldn't take my mind away from thinkin' about her. An' the kinder hard part of it is, if I saw the woman again to-day she wouldn't mean no more to me than any other woman. On'y the feelin's I had for her then I hain't never been able to forget."

"An' air you glad you're alive right naow?"

"I can't say I hain't, Judy. I reckon livin's made up more out of a lot o' little things than any one big thing; an' there's a heap o' little things I git injoyment out'n. Mebbe there hain't nobody in Scott County likes a smoke an' a chew better'n what I do. Terbaccer an' a quiet back door yard—sun 'ithout no wind—an' my mornin' glories an' rose bushes to look at, them things gives peace and comfort, Judy. Naow, I hain't got no woman araound to sweep me off'n the stoop, I set there through a good many mornin's. I like my coffee an' corncake an' my bit o' fried hogmeat when I git up; an' after it I like my pipe with the blue an' gray streams o' smoke a-driftin' up into a sunbeam an' a-curlin' raound among the little specks o' dust. I like to hear hens sing an' cackle an' watch kittens play an' dawgs stretch theirse'ves in the warm sun an' growl in

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 their sleep a-dreamin' they're nippin' the heels o' caows. I like the fust feel o' spring with frogs singin' in the holler, an' the fust nip o' frost in fall, the smell o' burnin' leaves an' cold, yaller sunsets. You stand a long time in the gray cold an' look at them; an' when you go in it's dark inside an' you make up a fire an' it feels good. I like to see the low sun shine along a field o' young corn in spring an' through a grapevine in September. I like the sound o' rain on the roof an' snow drivin' past the winder when the wind whistles in the chimley. An' when there hain't much outdoors but mud an' clouds I like fire. Fire's a rare fine thing, Judy. Naow I hain't got no woman araound I kin set over it all I like. Sometimes when I set late over the blaze my thoughts runs a bit gloomy; but that hain't the fault of the fire. I git to thinkin' about when I was young an' life was ahead o' me an' I'm like Jerusalem that remembers in the day of her affliction an' her miseries all her pleasant things that were from the days of old. When sech thoughts gits too bitter, there's sumpin that's more comfortin' yet than fire, an' that's whiskey, good strong corn whiskey."

"Why do you drink so much whiskey, Uncle Jabez?"

Cause when I got whiskey warmin' my belly I feel like I was really the man I onct hoped I was goin' to be. Hain't that reason enough, Judy? I'm a old man now an' my spirit's broke, an' a broken spirit dries up the bones. I gotta hev a drink now an' then to limber me up. You know the Bible says: 'Give strong drink to him that is ready to perish an' wine onto the bitter in soul. Let him drink an' forget his poverty an' remember his misery no more.

The last words vibrated into the gathering night like a melancholy bell.

"Then you air bitter in soul, Uncle Jabez, spite of all the things you enjoy?"

"Yes, Judy, I can't say I hain't."

In the pause that followed he turned his head and looked at her keenly. She was sitting staring out toward the disappearing horizon, her shoulders sagging, her arms hanging limply

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 at her sides. Lassitude physical and spiritual spoke in her blank face and slumping body.

"It makes me feel bad, Judy, to see you go like all the rest of us, you that growed up so strong an' handsome, so full o' life an' spirits. I've watched you sence you was a baby growin' like a pink rosebud, an' then blossomin', so beautiful to see. And now—"

Huskily his voice went silent. He made squares and triangles on the ground with his heel.

"Sometimes I've thought that mebbe if you an' me'd been of an age, an' not me near old enough to be your grandaddy, you an' me together, Judy, might a made sumpin out of our lives, anyway got in a little play along with the grind. Mebbe so, mebbe not. Whichever way it don't do no good to figger about it—ner no harm neither."

He smiled again his fine, dry smile.

After he was gone and she had watched his broad, bowed back disappear down the side of the ridge, she sat looking out across the wide expanse of country to the horizon. The glow of the sunset had faded and there was nothing left but a few broken horizontal bars of pale saffron, backed by gray and lavender. Between her eyes and the saffron bars the long stretch of hills and valleys was sinking swiftly into darkness. They looked at her palely across the gloom-filled distance with a sad, horizontal gaze, sad and level, like her own.

At last she got up abruptly from the doorstep and went into the house and to the bottom shelf in the cupboard where Jerry kept his rarely used demijohn of whiskey. She took out the corncob stopper, poured a few spoonfuls into a teacup and tasted it gingerly. It burned her lips and throat and some of it went down the wrong way. She made a wry face, coughed, gagged, rushed to the water bucket and drank a dipperful of water, then slackly set about gathering up the supper dishes.

She made no further attempt to find the cheer that lay in the demijohn; but as the weeks went by something of Jabez' poise and calm seemed to have settled on her spirit. Often, thinking of their talk and seeing in memory his fine, sad smile,

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 the irritations of the household fell away from her and she seemed as if enfolded in a twilight peace. Having discovered its charm, she began to wear this memory as an amulet.

Through the spring and summer she spent much of her time in the garden and barnyard, leaving the house to clean itself. She raised chickens, geese, and turkeys and even bought a pair of rabbits from Aunt Selina and started a little rabbit colony in hutches built against the south side of the shed. Here the children were happy running about barefoot, digging in little gardens of their own, feeding the geese and chickens and poking carrots and clover into the rabbit hutches; and for the first time in their lives the mother and children moved together in harmony. When Jerry came home from the field and found them in the yard shutting up the broods of little chicks for the night and listened to their excited chatter and prattle, he passed on into the house feeling lonely and morose.

"I reckon I hain't much good here fer anything but to fetch in the money fer the shoes an' groceries," he said to himself, as he splashed the water over his face.

The young fellows were back from the war now—those who had not been killed. Ziemer Whitmarsh came home shell-shocked and good for nothing. He hung about the neighbors' barnyards drooling silly talk and remembering nothing. "What could you expect," everybody said, "when it was in the family anyway?"

"A sword is upon the boasters an' they shall become fools," Jabez Moorhouse was heard to mutter, as he looked after him with a shrug that was half pity, half contempt.

Marsh Gibbs bragged unceasingly about his exploits and his power to turn shot and shell and was listened to with respectful interest until it became known that he had got no further than Panama, where he had done nothing more exciting and dangerous than drive a mule team.

With the return of the men from the war an infectious restlessness and discontent pervaded the barnyards. The talk was all of hard times, of war prices that were not coming down and of the foolishness of bothering with tobacco. Some spoke of

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 moving over into Indiana, others of going to Cincinnati, though few had the courage or money to go beyond talk. There was much robbing of hen roosts and stables and a general and oft expressed feeling among the old folks that things were going from bad to worse.

With August the grasshoppers came in great numbers. Luke Wolf said it was the hard times that brought them. Grasshoppers and hard times, he declared, were never far apart. However they did little to make the times harder, as they could do but small damage to the crops. Tobacco they would not touch and corn was beyond their reach. They were a bit hard on alfalfa and garden stuff, but they made up for it by fattening the geese and turkeys.

It gave pleasure to Judith and delight to the children to tend and watch the little chicks and geese and turkeys as they grew into strong, stocky birds. And at sundown, when they all came up to the roosts, the yard was as crowded and busy as a town on fair day, noisy too with the crowing, quacking and gobbling of the young males who grew daily in self-importance. But as the fall came on and the young turkeys ranged further afield and found abundance of food and grasshoppers, they began to fail to come up for the evening scatter of corn, a tree in the woods often seeming to them a pleasanter roosting place than the barn roof. Judith did not like to have them roosting away from home. She knew that if any of the neighbors happened upon them they would disappear one by one.

Once, when she had not seen them for several days, she left the children with Aunt Selina in the late afternoon and started out to look for them. Loitering through the late glow of the September day she half forgot the turkeys in the pleasure that came to her from asters and goldenrod, red maples, and yellow beeches. Almost without thinking what she was doing she began to stray along the path that led in the direction of the old shanty between the hills.

When she came within sight of the deserted house, the roof of which was just visible above the rank growth surrounding it, she stood for a moment looking across the last red shafts

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 of sunlight that fell toward it through the trees. A half smile of weary cynicism lifted her upper lip, and with a scarcely perceptible shrug she was about to turn away.

Suddenly she drew quickly back behind the trunk of a tree.

Peeping around the tree, like a child playing hide and seek, she saw Hat Wolf appear on the outer edge of the shrubbery that grew about the old house. As she came out, Hat craned her neck and peered cautiously on all sides, scanning carefully the length and breadth of the hollow and the hillsides beyond up to the rim of the sky line. At last, feeling satisfied that no one was looking, she bolted as fast as she could, and her great hips and broad back were soon lost from sight in the nearest thicket.

It was turkeys that usually took Hat away from home. Judith looked around for turkeys. There was not a turkey in sight, nor, strain her ears as she might, could she catch any sound suggestive of their near presence. Perhaps some other business than to see if turkeys were making it a resting place had brought Hat to the old house. Judith had begun to shrewdly suspect what the business might be when she was confirmed in her conjecture by seeing a man emerge from the thicket in the same place that Hat had appeared. He did not peer about as Hat had done but walked away slowly, his head sunk on his breast, his hands plunged deep in his pockets, careless whether he was seen or not. In the dim light she did not recognize him at the first glance. When she looked again she saw that it was Jerry.

A hot wave of anger surged through her, her fists clenched and for the moment her whole being was one great hatred of Hat. Then a dozen conflicting emotions seized upon her, seeking to claim her at the same time. She wanted to run after Hat and spit in her face and call her the names that rose unbidden to her tongue. At the same moment she wanted to run in the opposite direction after Jerry and say to him things that she knew could bring the twitch of agony to his features. This desire had hardly risen in her when it was merged into the impulse to throw her arms about his neck and weep away her

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 storm of struggling passions on his breast. He alone she knew had power to comfort her. But could she go to him for comfort? No, nothing in the world should make her go to him.

For a long time she was unable to gather herself together. Her whole being seemed some inert, passive instrument through which impulses, thoughts and feelings came and went of their own accord without any power of her will to control them. Thoughts of Hat made her clench her fists again and flare with lightning flashes of anger. Thoughts of Jerry brought mingled emotions that, whether she would or not, fought frantically within her. Helplessly she fluttered and struggled like an old rag blown this way and that in some bleak dooryard where the winds meet.

Gradually the struggle weakened, and the old cold oppression closed down upon her, stonier, more inexorable than before. She felt drearily lonely and aloof as on the day when she had run away from the stripping of hog guts. Only this time she did not cry. She seemed to have grown too old and hardened for tears.

As her emotions sank and her mind began to work, she told herself coldly how silly she was to care, how stupid to be surprised, how unreasonable to be angry, how senseless every way she looked at it.

Yet she had to keep on looking at it, turning it over and over in her mind, viewing it from this angle and that angle. If it had been almost any other woman it wouldn't have seemed so bad, she told herself. But Hat! How had he allowed himself to sink so low? She felt herself drenched in a bitter flood of contempt for him—and for herself.

The sun had gone down long ago and it was growing dark when she moved at last from the place where she had been standing. But instead of going toward home, she went on down the hill to the old house and peered in at the gaping black doorway. Yes, it was there, looking just the same, the bed of branches and dry leaves that she and the preacher had made. It was still warm, she had no doubt! And suddenly the walls of the old house rang with a hard, sardonic laugh. Whatever

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 sordid tragedies they had witnessed, and doubtless they were many, the rain-streaked walls had never echoed to an unkinder sound. With a shrug she turned away.

Nevertheless, when she started to open up the stretcher that night to make her bed, she found herself hesitating; and there was a softened moment when she almost fled to Jerry. The impulse passed without her giving way to it, and she continued to unfold the ragged quilts.

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great after war pestilence called "flu" swept across Scott County that fall and winter, sparing neither the old men nor the young virgins. It knocked at many doors, and often where its knuckles had rapped the undertaker hung his bunch of crape. Sometimes the crape was a rusty black, often a rather soiled white. It took away Uncle Jonah Cobb and left Aunt Selina alone with the bees and rabbits. It took one of Joe Barnaby's children and Aunt Abigail's son, Noey, and Evalina, Aunt Maggie Slatten's second youngest girl. It took babies in arms and young men that the war had spared and women with child. It took Uncle Sam Whitmarsh away from his cheerful traffic in dogs and horses.

"It's allus this way," said Jabez Moorhouse. "War an' pestilence goes hand in hand. The bigger the war the bigger the pestilence. The Bible says them that's near at hand'll fall by the sword an' them that's afur off'll die o' the pestilence. We're a hell of a long ways off, but we're a-dyin' o' the pestilence jes the same."

He hunched his shoulders over the stove, feeling suddenly cold.

Once again winter settled down on the wind-shaken little house on the ridge. Judith, peering from the window at the mud and clouds of December, felt the old oppression sink upon her, heavier because so drearily familiar. How many years would it go on, she caught herself wondering.

It was nearly a year since the quarrel. Since then they had treated each other with the chilly politeness of strangers who do not much like each other's looks. In summer when life dragged less oppressively it was not so hard to bear. But now that winter was come her heart sank within her.

Christmas came and went and there was no change.

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 It was not until after Christmas that the flu came to them. Jerry had a light attack which kept him away from the stripping room for two weeks. Then when he was almost ready to return to work, Andy got it and was followed in a few days by Billy.

"If Annie gets it, it'll likely go hard with her," said Jerry, looking anxiously at the pale, self-contained little girl who was his favorite among the children. "We can't take her to mammy's 'cause dad's got it."

"An' I can't take her to my folks, 'cause Luelly's jes a-gittin' over it."

Judith did what she could to keep Annie away from her sick brothers. But one morning about a week after Billy had been taken sick, when she went to dress the little girl she saw that her cheeks were flushed with fever.

"I knowed there was no gittin away from it," she said grimly to Jerry, as she mixed a dose of castor oil with warm coffee.

On the third day Annie was so much worse that Jerry rode over to Clayton for Dr. MacTaggert.

It was late that night when the doctor's mud-spattered Ford came panting up the long hill and stopped before their door. The little man looked haggard and hollow-eyed from his constant attendance at sickbeds and his long hours of bumping over rutted roads and up and down steep, perilous trails to the tobacco growers' lonely shanties.

"It's pneumonia," he said, as he straightened up from his examination of the child's chest.

The blood sank away from Jerry's face, leaving it a sickly gray color, and he grasped the bedpost to steady himself.

"Can't you see your shakin' the child's bed," said Judith crossly in a grating voice.

The doctor said that she would have to be watched and tended carefully both day and night. Jerry let the tobacco stripping go and stayed at home to help with the nursing. The boys were now well on the way to recovery and beginning to be fractious and noisy. The father and mother took turns at

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 nursing the little girl and trying to keep the boys quiet; and through the night one watched while the other slept.

As Judith sat by the bedside of the sick child that she had begrudged to life before it was born, her heart failed her at the thought that the little one might die. She felt that to see her die, to have her cold little dead body put into a narrow coffin and laid in the frozen ground would be more than she could bear. Her thoughts skirted these images and fled away aghast not daring to face them. Keenly she suffered with the sufferings of the child. When she anxiously watched her breathing hard she felt her own chest racked by tearing pains. She had to summon all the courage that remained to her to enable her to bear the sight and touch of the limp and wasted little body. Never had the child seemed more inextricably bone of her bone, flesh of her flesh. She felt herself eager to make any sacrifice if only it would bring the little one back to life and health.

And yet at the same moment that she yearned over the sick child, another set of thoughts, strange and sinister, came forward with startling boldness, thoughts that had come to her at other times and before which she had quailed, as, in the darkness of a wakeful night, one quails before thoughts of approaching death.

Of what use after all that this baby should live? She would live only to endure, to be patient, to work, to suffer; and at last, when she had gone through all these things, to die without ever having lived and without knowing that she had never lived. Judith had seen grow up in the families of the neighbors and among her own kin dozens of just such little girls as this one that had come out of her own body: skimpy little young-old girls, with blank eyes and expressionless faces, who grew into a prim, gawky, old-maidish girlhood and passed quickly from that into dull spinsterhood as Luella had done, or to the sordid burdens of too frequent maternity. Little Annie was just such a one. In every way she was a product of the life that had brought her into being, and that life would claim her to the end.

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Hayne J Crennan J Kiefel J

There having been "on any other ground whatsoever … a miscarriage of justice", s 6(1) of the Criminal Appeal Act obliged the Court of Criminal Appeal to allow the appeals against conviction, unless persuaded that the proviso was engaged.

In Weiss v The Queen, the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, that task is an objective task which is not materially different from other appellate tasks. Third, the standard of proof is the criminal standard. The Court rejected the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language. Rather, the Court held that no single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given.

The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice. An example of circumstances in which consideration of what was proved at trial is not a sufficient basis for applying the proviso is provided by AK v Western Australia. In that case the relevant statute required that the trial of an accused, by judge alone, yield a reasoned decision, but there were no reasons given at the appellant's trial for the determination of the central issue tried in the case. That being so, it could not be said that there was no substantial miscarriage of justice.

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 Why had she been given such a child? It seemed the cruelest irony of chance that had bound her by this strong added link to the sodden life of the soil.

Sitting by the sick child through the long vigils of the winter night, the mother dwelt upon these thoughts, facing them squarely. And following them out to the end they brought her relentlessly to the conclusion that it would be better that the child should die. But having come within sight of this conclusion, she turned with instinctive horror and fled away from it. No, she could not have her baby die. She must not die. And yet better children were dying on every side. Why not hers as well as another's? The mother shrank and quailed, feeling her burden greater than she could bear.

As she struggled with these bitter thoughts, the moon, which had passed the full, looked palely into the lamplit room through the tracery made by a dead grapevine against the uncurtained window and saw her sitting gaunt and hollow-eyed, her sharp elbows propped on her knees and her chin in her hands. Again she restlessly paced the floor or stood by the window looking out and taking no comfort from the dumb stretch of hills and valleys that lay dark and lonely under the waning moon.

When it came Jerry's turn to watch by the baby, he was troubled by no such conflict of feelings. His one thought was that the child must be saved. He loved her with all the tenderness that fathers of his nature give to an only daughter, and he saw in her no defect nor resemblance to any other child. She was his girl and she must not be allowed to die.

For nearly a week the child lay tossing and moaning, seeming to be kept alive more by the hectic flicker of fever than by any more stable vital throb. The mother and father alternated in watching over her, silently doing what they could. They grew pale and red-eyed from lack of sleep, frowsy and unkempt. Above the tense strain of the anxiety that held them in grip, the dark cloud of their estrangement hovered with cold oppression. They rarely spoke except when they had to. At meals they sat opposite each other in gloomy silence. When, as sometimes happened, their eyes accidentally met across the

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 bed of the sick child, they turned hastily away with mutual aversion.

At last, after a long night of feverish tossing, there came a morning when the little one seemed somewhat better. She breathed easier and the fever had sunk away leaving her pale and weak but more like the child that her parents knew. Was this a change for the better? Or might it possibly be one for the worse?

About the middle of the morning Dr. MacTaggert came. As he made his examination of the child the parents stood behind him watching anxiously, but never once casting a glance at each other.

"Why, she's a heap better," he said at last, turning around to them. "There's not much of her, but she seems to know how to hang onto life better than some of the stouter ones. The worst seems to be over now, and I reckon you'll raise her yet if all goes well."

"Judy!" said Jerry, when the doctor had closed the door. The one word was full of many things, like a bubble drifting through sunlight.

She fled to him and fell sobbing into his arms.

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little Annie had recovered and the danger of contagion was well over, Lizzie May came one Sunday to spend the day with her sister, bringing with her Granville and Viola in stiffly starched Sunday clothes and her new husband, Edd Havicus, who handled freight at the Clayton railway station. While Edd and Jerry and Columbia Gibbs and Joe Barnaby sat and whittled at sticks on the sunny side of the barn, the sisters visited together in the kitchen.

Lizzie May looked blooming and happy, and a layer of fat that was beginning to show just a trace of coarseness filled up the wrinkles that had lined her face after Dan's death.

She was continually rushing to the door to make sure that Granville and Viola were not playing in the mud, that they were not in the barn where they might go too near the horses nor anywhere in the vicinity of the horsepond. From the doorway she called out shrill admonitions and threats of future punishment. She found it hard to hide her pride in her own offspring and her disapproval of the dirty faces, muddy overalls and complete lack of manners of Judith's boys. The little girl was better, more clean, and quiet. But even she had not been taught to say "Thank yuh, ma'am," when you gave her a penny or a popcorn ball. If Lizzie May's children were ever negligent in this important matter she always admonished them reprovingly, "Well, naow, what d'yuh say?" and thus drew forth the belated avowal of gratitude. But Judith was shamelessly remiss in all such training. Lizzie May did not know whether it was from laziness or stupidity. She was grieved that a member of her own family should act so.

She was sadly shocked too when she looked about Judith's frowsy kitchen at the stove, innocent of blacking, the pots and pans crusted on the outside with a long accumulation of greasy

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 soot, the floor that needed scrubbing, the smoked-up teakettle and the littered shelves.

"My," she thought with a shudder that almost turned into a shrug, "haow kin she keep a-goin' in sech filth?"

But she would not for the world have said anything; for the longer sisters live apart the more polite they become to each other. And because she wanted to guard against saying anything or looking anything, she chose the safer and much more absorbing topic of her own recently settled home in Clayton. She was voluble and expansive over the new oilcloth in the kitchen, the ingrain carpet in the best room and the set of pink-sprigged dishes that Edd's mother had given her for a wedding present.

"I'm sholy glad I kep' my things an' didn't give 'em away at a auction, Judy. Sech things goes fer nothing when you sell an' costs a heap when you buy. We'd a had lots more expense settin' up housekeepin' if we hadn't a had 'em. Course some of 'em is old fashioned an' not jes what you would choose if you was a-buyin'; but we can't afford yet to have everything to match an' all in golden oak, like young Mrs. Jim Akers. Her things is swell, Judy. Sometimes when I look at the old chair Dan used to set in nights when he come in from the field, I jes can't hardly keep from bustin' out cryin'. An' yet it seems as if things works raound fer the best. Edd's awful steady an' don't never hunt an' hardly never drink. An' it's a heap nicer livin' in Clayton, Judy. No caows to milk nor skimmin' nor churnin' nor botherin' with hawgs an' hens. Sidewalks right to your door so's you don't hev to slush through mud every time you set foot outside. So much easier to keep the kitchen clean, specially with the oilcloth on the floor an' the men not allus trackin' in. Nice neighbors to speak to over the fence or drop in on of an afternoon with yer sewin', an' the store handy to run to, an allus sumpin a-goin' on, an' yer husband drawin' his money regalar every Satiddy night. I dunno haow I ever could go back to livin'," she almost said, "like this," but caught herself in time and ended, "the way I used to."

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 Judith sat wondering why she could muster up so little interest and why she was not even offended by her sister's airs of superiority, as Lizzie May sang the praises of such urban elegancies as screen doors, garbage cans, and oil stoves.

"An' d'yuh know, Judy," she went on, "I hear there's talk of their startin' a picture show in Clayton. Wouldn't that be fine?"

"It wouldn't make no diff'rence to us," said Judith, smiling a little ruefully. "We're so fur off we'd never be able to git to it."

"Oh, but you must bring the young uns an' stop over night with me," said Lizzie May hospitably. "I got a grand new sanitary bed that his sister give us. All his folks seems to be well fixed. It's a pleasure, Judy, to be amongst people that's refined and has things nice."

Lizzie May seemed indeed to have assimilated the refinements of the town as the sponge sucks water. She was wearing high heeled pumps and nearsilk stockings, a skirt fashionably skimpy, a sweater of brilliant Kelly green and hair that had been put up over night in crimping pins. The mincing precision of her talk and ways had never been so apparent before, and she used the words "toilet" and "sanitary" with the connotations at once malodorous and antiseptic given to these once innocent words by urban Americans.

Judith felt a bit bewildered by all this newness: new clothes, new things, new words. "Toilet" and "sanitary," "swell" and "grand," were words that she had occasionally overheard in Clayton, but they fell strangely from Lizzie May's lips. She realized, with no particular feeling of regret, that the gulf between herself and her sister had widened.

She was glad when Lizzie May and her endlessly trained and endlessly guarded children were gone. Trying to pretend, to be interested in her sister's chatter had made her feel tired and headachy and she lay back in the rocking chair and closed her eyes. What a long time it seemed since she and Lizzie May were children together in the little log house that still stood scarcely more than a mile from where she sat. How

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 changed was everything, and yet how unchanged. The same houses and barns stood where she had always seen them, the same people, looking scarcely different, moved in and out. But everything was stark now, bald and bare that in her childhood had been softened by haze, mysterious and beautiful. Beautiful indeed and mysterious the world had seemed then. She called to memory many things out of her happy childhood, the scent of drying tobacco and autumn evenings when they legged it, all five of them, around the clothesline prop, sniffing the winy air like young hounds. There were delirious June mornings, too, when she scampered down the pasture to bring up the cows, and pure April twilights lilac-scented that quickened into being young tendrils of fancy as airy and opalescent as morning gossamer.

How glad and forward looking had been all that time, how forward looking all the thoughts and stirrings and bubblings of youth, always reaching out, reaching out—to what?

Snorting and neighing in the glorious make believe that they were a prancing team, the boys came around the corner of the house trundling a homemade wagon. Annie, driving the wagon, uttered shrill squeals and giggles of delight.

In the half gloom of the kitchen the mother smiled mournfully. It was their day now. But their day too would soon be over, and the question remained unanswered. To what?

She took up the milk bucket and went out to do up the evening chores. When she had fed the hogs and chickens and milked the cows and strained and put away the milk, she sliced some meat for supper and mixed the corncake batter, then sat down to mend a tear in one of Annie's dresses. As she sewed she lifted her eyes often to the window.

From the day that they had moved into the windy little house on the hill, the sunset had begun to reach out hands to her. She had grown into the habit of looking forward to the end of the day. Its approach meant that the waking hours of dismal tasks and constant frets and cares would soon be over, that the whines and wails and wrangles, the scraping of chairs, the tramping of muddy shoes, the whole meaningless

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 turmoil would come to an end, and for a little while there would be peace. Sometimes, too, there was an hour of quiet for her when the work was done, the children out at play and Jerry not yet come in for his supper. From the westward looking window she could see miles of rolling country that stretched to the long sweep of the horizon. Through the day the prospect did not vary greatly and she had not much time to spend in looking at it. But at sundown the west drew her eyes like a magnet. There, with the passing of the slow months, she saw glow into being and fade away the placid gold and azure sunsets of early summer, the hot, smoldering saffrons of August, the clear wine colors of September and the cold grays and yellows of winter. There, after the rain had poured heavily all day long, she sometimes saw the thick, one-toned pall of the sky lift itself away from a narrow strip of intensely glowing horizon against which distant roofs and treetops made a black landscape fringe sharply silhouetted against the shining river of light. And after a day of squalls and driving clouds, massed storm clouds hung their dark, rainy fringes around lakes of amber and pure apple green.

The cloud pictures fascinated her even more than the water landscapes on the wall; for in them there was infinite variety and change. She saw stately, turreted castles built upon the tops of crags that rose perpendicularly from shining water; and on the other side of the water perhaps a grove of great trees with weirdly twisted limbs. And even while she looked the outlines of the trees changed, the castle dwindled or loomed larger and there was a new picture. When she looked again it was all gone and there was left a peaceful valley with a river winding through it, a little steep-roofed house on the river bank and a church spire in the distance.

Faces, too, came out of the clouds, faces that held her eyes more than the landscapes: droll, exaggerated faces such as she had tried to draw when she was a little girl at school, faces with bulbous noses and bulging foreheads, faces half animal, half human, crafty faces with little fox eyes, great flabby faces like Aunt Maggie Slatten's.

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 Sometimes too she saw grow out of the clouds great monumental heads, aquiline-nosed and lofty-browed, full of dignity and repose, as solid and eternal looking as though they were of carved rock instead of drifting cloud vapors.

With a pencil and a piece of wrapping paper, she sometimes tried to catch and hold the fleeting faces that most stirred her fancy. She had a little pile of such drawings laid away in the bottom drawer of the dresser.

It grew too dark to sew. She threw aside the half finished dress and stood looking out of the window seeking peace and a something more than peace which she had learned to draw to herself out of the sunset. It had been a soft, springlike day in March with a mackerel sky undecided between rain and shine. Now the western sky was dappled with a gray and silver sunset, like the spread-out wool of old, weatherbeaten ewes backed by the shining fleece of lambs. She went out and stood on the rickety porch. The air was pungent with the smell of damp earth and springing grass. A silvery quiet, pensive but serene, spread from the sky through the soft air, and in the evening silence a returned robin twittered from the top of a tall hickory tree.

Far down the ridge Marsh Gibbs was bringing up Hiram Stone's sheep and lambs to house them in the tobacco barn for the night. The hundreds of woolly backs moving separately yet together made a soft, undulating carpet that grew grayer as the twilight shadows crept over it and at the edges merged imperceptibly with the earth. Mingled with the tremulous bleating of the sheep and the shriller ba-ha-ha of the lambs, the sheep bells tinkled faintly; and dominating all Marsh's long drawn "sheep-ee, sheep-ee," as he led the flock, was not a human-seeming sound, but weird and melancholy, like the cry of some creature born of the twilight. She could not see, but she knew, how trustingly the little lambs ran by their mothers. Soon they would all be at rest in the big barn, safe, warm, and quiet.

In the dooryard she saw the last chickens straggling up one by one, obeying the homing instinct that brought them always

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 at night to the roost. Already the turkeys were perched in a row on the ridgepole of the shed, their big bodies outlined darkly against the sky. Now and then one of them would stretch out its long neck and look warily about to make sure that all was well. The last turkey flew up and joined the line, and with little chirrs of content they settled themselves to sleep. The dog in the corner of the porch sprawled luxuriously, and curled upon her friend's warm flank the cat slept. It was her favorite bed.

Standing wrapped in the growing twilight she felt herself like these humbler creatures an outgrowth of the soil, its life her life even as theirs. Quiet, peace and calm, these things belonged to them, a part of their heritage. These things in less measure her own life had to offer. These things at last she was ready to accept.

Since her reconciliation with Jerry in the joyful moment of their baby's triumph over death a new spirit had entered into her. Meltingly in that moment she had known by what strong ties she was bound to him. Convincingly she had realized the uselessness of struggle. Through the weeks that followed, long thoughts stayed with her as she went about doing her housework and she saw more and more clearly the path that the future laid out before her. Like a dog tied by a strong chain, what had she to gain by continually pulling at the leash? What hope was there in rebellion for her or hers? The boys would grow up to bury their youth in the tobacco field, as Jerry had done. Little Annie would be in years to come a prim and dull old maid like Luella or a harassed mother like herself. Which fate was worse, she asked herself, and did not dare to try to form an answer. She had grown timid about many things since the days of her forthright girlhood. Peace was better than struggle, peace and a decent acquiescence before the things which had to be. At the thought her sunken chest rose a little and the shoulders fell into less drooping lines; and there was a certain dignity in the movement with which she threw a long wrung sheet over her shoulder and

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 stalking with it to the line spread it out to flap in the March winds.

Now, as she stood watching the pale sunset melt into darkness and listening to the distant bleating of the sheep, she told herself again that she was through with struggle and question, since for her nothing could ever come of them but discord. Henceforth she would accept what her life had to offer, carrying her burden with what patience and fortitude she could summon. She would go on for her allotted time bearing and nursing babies and rearing them as best she could. And when her time of child bearing was over she would go back to the field, like the other women, and set tobacco and worm and top tobacco, shuck corn and plant potatoes. Already people were beginning to call her "Aunt Judy." Some day she would be too old to work in the field and would sit all day in the kitchen in winter and on the porch in summer shelling beans or stripping corn from the cob. She would be "granmammy" then.

She felt that she would never again seek estrangement from Jerry. Divided, their life was meaningless, degrading and intolerably dismal. Together there would be if not happiness at least peace and a measure of mutual comfort and sustaining strength by virtue of which they might with some calm and self-respect support the joint burden of their lives. Peace in his house was a gift that she wished to offer him, not out of a sense of duty, but as a free and spontaneous return for his gentle goodness, his devotion to her and her children, his loving disregard of all her shortcomings as housekeeper, wife, and mother. Of this generous bounty she had received without stint, and she felt that at last it had brought forth response in her as grass springs up where warm rains have fallen.

She heard a step and turning her head saw her husband coming up the path. Even in the half darkness her eye, accustomed to all his moods, discerned in his hunched shoulders and heavy gait something more than the daily drag of the soil.

"I got bad news, Judy," he said, as he stepped shamblingly

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 onto the porch and stood beside her. "They found Uncle Jabez dead in his bed to-day—Aunt Selina found him."

"Uncle Jabez!" was all she could say; and a great void seemed to spread itself around her. Through the void she heard Jerry's voice coming as if from a long distance.

"Yes, it was the flu, I reckon. Nobody hadn't seen him for three four days. An', Judy, I won't never be able to forgive myse'f. Tuesday I was by his place an' he said he wa'n't feelin' a bit good an' strung me out some o' that Bible stuff o' hisn about how the Lord had made his flesh an' skin old an' broke his bones. He looked bad too. He said he reckoned it was the flu. Thursday I was past there agin a-chasin' the roan caow, an' I'd ought to a stopped in, an' I thought of it too. But the caow was a-gittin' fu'ther away every minute an' I kep' on a-goin' after her. An' if I'd on'y a stopped in he might a been saved, an' anyway he wouldn't a died there like a dawg with nobody near to turn a hand for him. It seems awful to think I never went in, don't it, Judy?"

She did not answer. In that moment the manner of his death and Jerry's negligence were nothing to her. All she could think of was that he was dead, that she would never again watch him warm his great hands over her stove, see the fine lines quiver about his mouth and hear the deep bass rumble of his voice, never again listen to his careless singing as he loitered boylike across fields, soaking in the sunshine, tasting the calm of the twilight, stalking giantlike through the light of the moon, and in the dark nights knowing the path with his feet as an old horse knows the road home. In that moment she realized that to know that he was dead was to fill her world with emptiness. What light and color had remained for her in life faded out before this grim fact into a vast, gray, spiritless expanse. Now for the first time she knew what his mere presence in her world had meant to her. The things that remained to her to raise her life above the daily treadmill were the things that she held in common with him: joy in the beauty of the world, laughter and contemplation. These things no one but he had ever shared with her. He had been the one

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 real companion that she had ever known. Now he was gone and she was alone. A weight like a great, cold stone settled itself upon her vitals; and as she gazed out over the darkening country it seemed to stretch endlessly, endlessly, like her future life, through a sad, dead level of unrelieved monotony.

Jerry came and slipped his arm about her waist, as he used to do in the old days when he and she were lovers.

"It's sad, hain't it, Judy, so many folks we've allus been used to gone, an' all in one winter: Uncle Jonah an' Uncle Sam Whitmarsh—an' now Uncle Jabez." Then after a pause, "But you an' me's got each other yet, Judy."

His arm tightened about her and he bent down and kissed her on the lips.

"Yes," she answered a little huskily, "we've got each other."

In its mercy the darkness hid her face.

He went into the kitchen to wash up. She could hear him lighting the lamp, pouring water into the tin basin and splashing it over his face, while he cheerfully rallied the children who had followed him in from their play. The lighted lamp cast an oblique golden band across the porch. She moved a little to be out of the path of the light and remained standing in the darkness.

"Whatcha got for supper, Judy? I'm most powerful hungry, an' these here young uns is a-diggin' into the cold corncakes like so many wolf cubs."

It was the inevitable summons. In obedience to it she roused herself, as she had done so many times before, and went into the house.

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Page:Cesan v The Queen.pdf/46

Hayne J Crennan J Kiefel J

In Wilde v The Queen, reference was made to the possibility that some errors occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso. The appellants submitted, both in the Court of Criminal Appeal and in this Court, that these cases were of this kind. That is, the appellants submitted that the inattention of the trial judge at various times during the trial meant that there was no trial by judge and jury.

But just as the application of the proviso is not to be determined by deduction from expressions which attempt to describe the operation of the statutory language in other words, what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. And the application of the proviso is not to be determined according only to whether the form of expression used in Wilde, or some other conclusive statement, appears to be an apt description of the course of the trial. Rather, it is necessary to have regard to the miscarriage of justice that has been identified.

In these cases the miscarriage lies in the distraction of members of the jury from their task. And because that is the miscarriage of justice that occurred in these cases, it is not possible to conclude, on the written record of the trial, that the evidence properly admitted at trial proved the appellants guilty beyond reasonable doubt. As noted earlier, forming that conclusion is a necessary condition for applying the proviso.

In Weiss, the Court pointed out that, in considering the application of the proviso, an appellate court's task "must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict" (emphasis in original). But in undertaking that task an appellate court must be conscious of the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record of the trial.

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text: Weeds (Kelley)

title: Weeds (Kelley)


text: Weeds (Kelley)/Chapter 1

title: Weeds (Kelley)/Chapter 1


text: Weeds (Kelley)/Chapter 2

title: Weeds (Kelley)/Chapter 2


text: Weeds (Kelley)/Chapter 3

title: Weeds (Kelley)/Chapter 3


text: Weeds (Kelley)/Chapter 4

title: Weeds (Kelley)/Chapter 4


text: Weeds (Kelley)/Chapter 5

title: Weeds (Kelley)/Chapter 5


text: Weeds (Kelley)/Chapter 6

title: Weeds (Kelley)/Chapter 6


text: Weeds (Kelley)/Chapter 7

title: Weeds (Kelley)/Chapter 7


text: Weeds (Kelley)/Chapter 8

title: Weeds (Kelley)/Chapter 8


text: Weeds (Kelley)/Chapter 9

title: Weeds (Kelley)/Chapter 9


text: Weeds (Kelley)/Chapter 10

title: Weeds (Kelley)/Chapter 10


text: Weeds (Kelley)/Chapter 11

title: Weeds (Kelley)/Chapter 11


text: Weeds (Kelley)/Chapter 12

title: Weeds (Kelley)/Chapter 12


text: Page:An Elegy wrote in a Country Church Yard - Gray (1751, 1st edition).djvu/10


text: Weeds (Kelley)/Chapter 13

title: Weeds (Kelley)/Chapter 13


text: Weeds (Kelley)/Chapter 14

title: Weeds (Kelley)/Chapter 14


text: Weeds (Kelley)/Chapter 15

title: Weeds (Kelley)/Chapter 15


text: Weeds (Kelley)/Chapter 16

title: Weeds (Kelley)/Chapter 16


text: Weeds (Kelley)/Chapter 17

title: Weeds (Kelley)/Chapter 17


text: Weeds (Kelley)/Chapter 18

title: Weeds (Kelley)/Chapter 18


text: Weeds (Kelley)/Chapter 19

title: Weeds (Kelley)/Chapter 19


text: Weeds (Kelley)/Chapter 20

title: Weeds (Kelley)/Chapter 20


text: Weeds (Kelley)/Chapter 21

title: Weeds (Kelley)/Chapter 21


text: Weeds (Kelley)/Chapter 22

title: Weeds (Kelley)/Chapter 22


text: Weeds (Kelley)/Chapter 23

title: Weeds (Kelley)/Chapter 23


text: Weeds (Kelley)/Chapter 24

title: Weeds (Kelley)/Chapter 24


text: Weeds (Kelley)/Chapter 25

title: Weeds (Kelley)/Chapter 25


text:
Page:Cesan v The Queen.pdf/25

 direction and superintendence of the court", noting that "[t]his direction and superintendence was an essential part of the trial".

In this context and after extensive review of authority, his Honour found a failure to comply with s 80 of the Constitution. There was therefore no need for the appellants to demonstrate that the conduct of the trial judge led to some consequential error demonstrating a miscarriage of justice.

Notwithstanding the constitutional context of his conclusion, his Honour also characterised the trial as irreparably unfair, citing Gleeson CJ in Nudd. He considered whether the judge's behaviour had the capacity to affect the jury's assessment of the appellants' cases. The proper test was an objective one. Applying that approach it could be assumed that the conduct of the judge would have had two related effects. First, it tended to undermine the routine directions given at the commencement of the trial to listen carefully to the evidence. Secondly, it tended to undermine the likelihood that the directions which he gave to the jury would be taken seriously and carefully applied. They might have been; it was impossible to know. The trial judge's behaviour constituted a distraction. His Honour concluded :

"Accordingly, there was a real possibility that the judge's conduct adversely affected the jury's performance of its function, in a material respect, which was sufficient to render the trial unfair and to deprive the proceedings of an essential characteristic of trial by jury."

His Honour also considered the operation of the proviso to s 6(1) of the Criminal Appeal Act and held that it could not apply because there had been a failure to comply with s 80 of the Constitution. That failure either gave rise to a substantial miscarriage of justice or was one to which the proviso had no application.

The first question in these appeals is whether there was a "miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act. The second question is whether, if there were a miscarriage of justice, it was nevertheless not "substantial" within the meaning of the proviso to s 6(1).

title: Page:Cesan v The Queen.pdf/25


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text:
Portal:Scott County, Kentucky

Ordinances

 * Official archive

Fiction

 * Weeds (1923), a novel by Edith Summers Kelley set in the county

Authors

 * Edith Summers Kelley, Canadian-born American novelist who lived on a farm in the county in 1923 (which inspired her novel Weeds)

title: Portal:Scott County, Kentucky


text:
Page:Cesan v The Queen.pdf/26

French CJ

The term "miscarriage of justice" appears in a number of Commonwealth, State and Territory statutes, predominantly in relation to the disposition of criminal appeals. It is convenient to begin with its ordinary meaning before turning to relevant authorities.

In the second edition of the Oxford English Dictionary "miscarriage of justice" is defined as "a failure of a court to attain the ends of justice". Applied to a system of laws the ends of justice will incorporate normative requirements relating to the way in which laws are applied and dispositions made under them. The conviction of an innocent person would be recognised by all observers as a miscarriage of justice. But the concept goes beyond that, particularly in a criminal justice system that is committed to fair process. One general definition from a perspective external to the system is :

"A miscarriage occurs as follows: whenever suspects or defendants or convicts are treated by the State in breach of their rights, whether because of, first, deficient processes or, second, the laws which are applied to them or, third, because there is no factual justification for the applied treatment or punishment; fourth, whenever suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others; fifth, whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, sixth, by State law itself."

To the extent that that definition incorporates perceived deficiencies in the law it runs wider than any definition that could be applied in a statutory setting. Within the statutory framework for criminal appeals under consideration in this case, the range of events, acts or omissions which can constitute a miscarriage of justice will depend upon the necessary conditions of "justice" in the criminal justice system. One class of necessary condition can be gathered under the general rubric of judicial process. A broader concept, which embraces but is not limited to the trial process, is that of "due process of law".

title: Page:Cesan v The Queen.pdf/26


text:
Page:An Elegy wrote in a Country Church Yard - Gray (1751, 1st edition).djvu/1

ΑΝ

WROTE IN A

LONDON: Printed for in Pall-mall; And sold by  in Pater-noster-Row. 1751.


text:
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French CJ

This is not a case about the judicial power of the Commonwealth nor implications to be drawn from Ch III of the Constitution. This Court, in allowing the appeals, did so on the basis that it was not necessary to decide the case by reference to the requirements of Ch III or s 80. Nevertheless the character of the judicial process as an element of the exercise of judicial power derives from the history and nature of the judicial function which in turn informs the constitutional concept.

There have been many judicial observations which lend support to that general proposition. In Robins v National Trust Co the Privy Council said of the concept of miscarriage of justice" in relation to judicial proceedings generally :

"It means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

In Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy a "miscarriage of justice" was seen as such a departure from the rules which permeate all judicial procedure as to make that which happened not judicial procedure in the proper sense of the words. It does not necessarily require the demonstration of a wrong decision. As Asprey JA said in Wilson v Wilson :

"What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law." (citation omitted)

Windeyer J said, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, that the concept of judicial power "inevitably attracts consideration of predominant characteristics and also invites comparison with the

title: Page:Cesan v The Queen.pdf/27


text:
Author:Emma L. Barratt

Works

 * Autonomous Sensory Meridian Response (ASMR): a flow-like mental state (2015)

title: Author:Emma L. Barratt


text: An Elegy Wrote in a Country Church Yard (1751)


text:
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Rh either with no hair or with too much, nor one immoderately talkative; nor one with inflamed eyes.” (Ch. III. v. 8). Although this law has been very frequently disregarded, yet no voidance of such a marriage, where the ceremony has been actually and regularly performed, has has [sic] ever taken place; it being understood that the above prohibition, not being supported by sound reason, only involves the bridegroom in the religious offence of disregard to a sacred precept. He again prohibits the acceptance of a gratuity, on giving a daughter in marriage naming every marriage of this description “Assooru,” as well as declaring an Assooru marriage to be illegal; but daughters given in marriage on receiving a gratuity have been always considered as legal wives, though their fathers are regarded with contempt, as guilty of a deadly sin. The passages above alluded to are as follow: (Munoo:) “But even a man of the servile class ought not to receive a gratuity when he gives his daughter in marriage; since a father, who takes a fee on that occasion, tacitly sells his daughter.” (Ch. IX. v. 98). “When the bridegroom, having given as much wealth as he can afford to the father and paternal kinsmen and to the damsel herself, takes her voluntarily as his bride; that marriage is named Assooru” (Ch. III. v. 31). “But in this code, three of the five last are held legal, and two illegal, the ceremonies of Pisaches and Assoorus must never be performed.” (Ch. III. v. 25).

28. The author finally quotes the following text: “Though immoveables or bipeds have been acquired by a man himself, a gift or sale or them (should)” not (be made) by him, unless convening all the sons; and he proceeds affirming, “So likewise other texts as this, must


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240 be interpreted in the same manner (as before). For the words ‘should’ and ‘be made’ must necessarily be understood.” (Ch. II. Sec. 29). That is, there is a verb wanting in the above phrase “a gift or a sale not by him,” consequently “should” or “ought “ and “be made” are necessarily to be inserted, and the phrase is thus read: “A gift or sale should not be or ought not to be made by him,” expressing a prohibition of the free disposal by a father even of his self-acquired immoveables. This text also, says the author, cannot be intended to imply the invalidity of a gift or sale by a lawful owner; but it shews a moral offence by breach of such a prohibition: “Since the family is distressed by a sale, gift, or other transfer, which argues a disposition in the person to make an ill use of his power as owner.” Moreover, as Munoo, Devulu, Gotumu, Boudhayunu, Sunkhu, and Likhitu, and others represent a son as having no right to the property in possession of the father, in the plainest terms, as already quoted in para. 21) no son should be permitted to interfere with the free disposal by the father of the property he actually possesses. The author now concludes the subject with this positive decision. “Therefore, since it is denied that a gift or sale should be made, the precept is infringed by making one. But the gift or transfer is not null: for a fact cannot be altered by a hundred texts.” (Ch. II. Sec. 30).

29. In illustration of this principle it may be observed, that a man legally possessed of immoveable property (whether ancestral or self-acquired) has always been held responsible and punishable as owner, for acts occuring on his estate, of a tendency hurtful to the peace of his neighbours or injurious to hethe [sic] community at large. He