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 therefore so distressing, that the company of a third person, particularly Ferdinand's, was a most desirable relief. He entered upon the success of his commission, and failed not to repeat, in the strongest terms, the advice and admonitions of Father Joseph. The Count fixed his eyes on Eugenia with a look that penetrated to her soul. She was greatly agitated for a moment, but struggling for composure, "I thank the good Father, and you, my amiable friend; but I have no doubts of my own resolution, no fear of future regrets: Only one object can claim a share in my thoughts with the Deity, to whose service I mean to dedicate the remaining days of my existence; and every remembrance of that too dearly beloved object will more strongly enforce the necessity for pursuing my present plan, by reminding me of my errors, and pointing out the strict observance of my religious duties, as the only means of procuring pardon from Heaven, and of obtaining future tranquillity to myself."


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 "To a mind resolved like your's, Madam (replied Ferdinand) I have no more to urge, and shall most readily attend you to the destined place when it shall appear convenient to you."—She bowed, and looking on the Count with a tearful eye, rose and retired.

"Come, my friend (said Ferdinand to the Count, perceiving that he was fixed in a profound reverie, with all the marks of extreme sorrow on his features) come, assert that fortitude so becoming in a noble mind, and which for many years has supported you: How delighted would you have felt under the pressure of your sufferings had life and liberty been offered to you on the single condition of the Lady Eugenia's retiring from the world: Would the alternative have admitted of the least hesitation? Certainly not: And can you now repine that she has the power of her own election, and in her own words, 'only prefers her duty to Heaven to her earthly happiness with you?' Let us both unite as fellow sufferers to comfort each other."

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


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 "I accept your offer (said the Count, hastily interrupting him.) From this hour you are my friend and brother; we will together seek the path to glory, and in the din of arms forget our private sorrows!"—His eyes sparkled as he spoke, and every feature grew animated; he seemed as if suddenly informed by a new soul, and from that moment struggled to subdue his grief, and assume an appearance of resignation and content.

Several days passed with cheerfulness, tho" not entirely free from anxiety by either party, for the return of their several messengers:—The first that arrived was Ferdinand's, with a letter from Count Rhodophil, and another from the good old Ernest: Respect superseded affection and curiosity. He opened the Count's letter first; it was not a long one.

"He was glad to hear from his brother, whose strange whim of rambling among unfrequented paths on foot had exposed him to


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 so many dangers: He approved of his design of returning to the army, and repeated his readiness to furnish him with money upon all emergencies—congratulated him upon the welfare of his son, without making a single observation on the late occurrences at the Castle, or once mentioning Claudina. He added, that his health not being very good he had some thoughts of travelling, as the spring advanced, therefore might possibly not be so regular in his correspondence, but earnestly requested, that his brother would inform him when it was his intention to join his quarters at Vienna."

This letter was so cold, so uncircumstantial, and in some respects so inconsistent, that Ferdinand, after looking it twice over, felt a dissatisfaction that he could hardly account for.—"He does not press my return (said he) nor lament my absence; it is true, had he done so, I should not have acceded to his wishes; yet methinks he ought to have done it; but perhaps I expect too much, for


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68 In the context—without other context, I don't want to answer that question without talking to my attorneys and seeing the transcript.

Of the statements that you made.

Yes.

So you don't have any independent recollection of saying, "These are the mistakes, intentional or otherwise, that led to January 6th"?

What I'm saying is, I will address it. I want to be provided with the entire transcript for that—

I don't have the entire transcript. It's an article that was—

Then I don't think I can fairly and accurately answer your question without having reviewed the entire statement with my counsel, is what I'm saying.

So you want the opportunity to review your own statement that you made to a news outlet about January 6th before you answer my question about what you describe as an intentional mistake made by the Bureau.

I think it is an appropriate and fair request, if you are going to read something in part that I said, that you provide me with the entirety of that statement and allow me—

Okay.

—and afford me the opportunity to talk to counsel.

Putting the statement aside, Mr. Patel, do you think that there was some intelligence that should've triggered a better response on January 6th?

Do I think so?

Yes.

I think that, if you recall the posture around Washington in and around January 6th, independent businesses had boarded up, such as Starbucks and Dunkin'


text: Horrid Mysteries: a Story/Volume 3/Chapter 3


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69 Donuts and the like were boarded up. Why they were boarded up I'm not sure. Maybe they saw something.

But I believe that there was reason, that I did not see at that time, that a security posture of intelligence should have been provided by law enforcement. I just don't recall that we were provided with one when we were in the Department of Defense.

So that's your big-picture criticism, that you at the DOD did not have an accurate threat landscape going into January 6th? I don't want to put words in your mouth, but it sounds like that's what you're saying.

I don't believe we had much of anything, if I remember correctly, in terms of intel from law enforcement.

Okay. And is that one of your criticisms of preparation, just in your experience, looking back?

Yes. If there was—that's a great question. If there was intel, we would've wanted it. And if intel came out later that they did, in fact, have intel related to January 6th and it wasn't provided to us, of course that's going to be one of my criticisms—I would hope it'd be one of your criticisms—to share with the interagency to prepare properly.

Exactly. That's the basis of the question.

So—but, in terms of what you knew, you, Kash Patel, and DOD officials going into it, the criticism that you have is, we were unaware of what threat there could be?

Yes. As best as we could tell, we were not provided with threat information from law enforcement that I can recall at this time.

There's a couple of the timeline discrepancies going into it, and I want to just talk briefly about the DOD timeline that—putting yours aside—exhibit 46 was the January 5th or 6th timeline, I believe.


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72 To do?

—to have the President say something to condemn, discourage violence?

I don't know that—I don't believe I said that to Chief of Staff Meadows. Whether other people did, I'm not sure.

You didn't hear any discussion of it, is my question, anybody saying, "Hey, wouldn't it be great if the President issued some kind of statement suggesting that people should not behave violently?"

The Acting Secretary and the Chairman may have said that to them, but I just don't—I just don't remember, as I sit here.

Okay.

I'm really not trying to be difficult. I'm just trying to get you to answer this specific question.

Uh-huh.

You don't remember any discussion with anyone that day about the President potentially issuing a statement that would discourage violence. Is that right?

I don't have an independent memory of it. I'm not saying it didn't happen.

I understand that.

I just don't have an independent memory.

You don't remember anyone mentioning that at all.

I don't recall that.

The whole day.

On the day of January 6th, I don't recall that.

I remember it came up later. After January 6th, there was, you know, a lot of media coverage on it, statements put out.

Of course.


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76 was the Acting Secretary of Defense. The former Secretary of Defense, Dr. Esper, was terminated a day or two prior to that, as best as I can remember. Acting Secretary of Defense Miller was appointed to the position.

And Acting Secretary of Defense Miller asked me if I was—if I recall correctly, "Are you interested? Would you serve? We've worked well together in the past." Something like that is generally how I remember the conversation going. And I said, you know, I'm happy to serve, you know, whatever the mission and whatever my instructions are.

 * BY :

When did you become aware of Secretary Esper's dismissal?

Mr. Glabe. Can you give us just a moment?

[Discussion off the record.]

The Witness. Let me just—where'd it go?—read one thing.

The select committee was authorized by H. Res. 503 to investigate the events of January 6, 2021. I believe this question falls outside the scope of that legislative purpose. I'm concerned about the improper question and the inappropriate line of inquiry and inherent fishing expedition. Nevertheless, I will do my best to answer the question.

I will also state that this question calls upon an answer that might implicate executive privilege concerns. I want the record to reflect my serious concerns about congressional overreaching on executive privilege.

So what I remember about former Secretary of Defense's termination is it happened around the election. I believe shortly thereafter I was in the Oval Office when President Trump removed—terminated Secretary Esper. That's how I found out about it.


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77 :BY :

What led to the dismissal?

I'd have to speculate, but I believe or I guess the President lost faith in his Secretary of Defense.

Well, you were in the room when that dismissal happened. It was a firing, right?

Termination, firing, whatever you want to call it.

On November 9th, correct?

If that's the date, yeah.

President-elect Biden was declared by most major networks on November 7th, correct?

I don't know. I don't have a timeline of when he was declared a victor or not.

According to the court (ph) notice, it was November 7th.

So, on those dates following, did you have discussions with the President about the basis for his firing of Secretary Esper?

My discussions with the President about Secretary Esper involve classified information and communications that I'm not able to get into in this setting.

Did you have any unclassified communications with President Trump about his dismissal of Secretary Esper and what his frustrations were?

Other than being there, I don't recall any specific unclassified conversations about Dr. Esper.

What do you mean "being there"?

In the Oval Office.

So did you observe any frayed relationship between Dr. Esper and—


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78 Sorry. I should clarify. Dr. Esper was not in the Oval Office on that day. I believe it was the day after the election. It was myself and the President. So he wasn't there.

Understood.

So I didn't see anything, obviously, on that day between the President and the former Secretary of Defense.

So my question is, what unclassified conversations did you have with President Trump about the basis of his firing of Secretary Esper?

And what I'm saying is, I don't believe I had any unclassified conversations that related to the termination of former Secretary of Defense Esper.

Did President Trump discuss with you his frustrations with how Secretary Esper responded to what his request was of DOD for the summer of 2020?

The summer of—I don't—

The response to the civil unrest.

Lafayette Park?

Correct.

Okay. No, I don't believe we discussed about—we discussed that.

Do you have any insight as to what—when you said he no longer trusted Secretary Esper—I forget what phrase you used what led to that?

Well, I speculated, if you want me to guess, I said, I believe Dr. Esper was terminated, from President Trump's perspective, because I'm speculating he lost faith in his ability to do the job.

But you don't have any insight into what—

I—

—what that lost faith was because of?


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79 What I'm telling you is, those answers call for classified information.

So there's no unclassified answer?

Not that I recall.

So it's your understanding that Acting Secretary Miller—

Yeah.

—wanted you to be his chief of staff.

It's my understanding that he, along with the White House, asked me to serve in that role. And, as Acting Secretary Miller and I have known each other and worked together for a long time, so—

Who along from the White House asked you to take on the role of the chief of staff?

The President.

Would it surprise you that Acting Secretary Miller said it was not his idea to have you be his chief of staff?

I don't know if you're asking me whether it was his idea or not. I'm trying to answer that he asked—my recollection—if I would consider doing it. That's what I remember. I don't know whose idea it was.

But President Trump had some role in that?

He asked me as well. I don't know who asked first. I don't remember.

Did you have any interest to go to DOD prior—before you were asked?

Having previously been at DOD at JSOC as a civilian, which was one of the best tours I ever did, I was of course interested in serving in some capacity for national security. And, you know, I mean, for a civilian, you know, what could be a better job than chief of staff at DOD? So of course I was interested.

So, sorry, just to go back to kind of the origins of the appointment itself, did


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80 you have any conversations with President Trump about your going over to DOD as chief of staff?

So the question appears to implicate executive privilege concerns. I'm prepared to answer, but I just want the record to reflect my serious concerns about congressional overreaching.

I think I answered that previously. But I think what the President said was, he asked me if I would do it, to the best of my recollection. I don't remember the exact verbiage.


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83 I don't believe we—he and I had discussions regarding transition, my role in the transition.

At any time?

With the President, I don't believe so. But I will add—thank you—we were directed by Chief of Staff Meadows to conduct an ordered and full-scale transition to the Biden transition team, so that's what we did.

When was that order given?

On or about the time the GSA memo came in permitting us to begin that process lawfully, is my understanding of it. And that GSA memo came in on November 23rd, right before Thanksgiving of 2020.

Got it. Before—

Mr. Sofer. Can we take a break again? Sorry. You can do—if you want to finish something, that's great.

 * BY :

Sure, just before we move off this. I know when you walked through your prior career, did you have—what management experience did you have prior to getting—taking on the role of chief of staff of the Army?

Sure. Yeah. So I had some management experience in my time as a public defender, at the Department of Justice, and at JSOC. Specifically, I had a large, what I can say in this setting is, number of lines of effort that would report in to the unit I was serving at and the role I was serving at to perform the mission set of that unit. There was a—the large unit. And then I came to the White House, and I believe at the time I was the director of the largest directorate on the National Security Council, so I had the largest number of directors under me.

Which means what, like how many people are we talking about reported to


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82 And what was your response to that—the policy mission set, in the last few months it appears, to wind down a war? Based upon your experience and expertise, is that feasible?

In my opinion, in some of the theaters, it was feasible. In some of the other theaters, depending on intelligence on the ground, it was a longer extenuated process. And I'd have to remind you guys that the Afghan, for example, was a process that had been ongoing with the diplomatic relations with Secretary Pompeo and Ambassador Khalilzad meeting in Doha regularly with the teams in Afghanistan. So that had been an ongoing process for some time.

We were in tune, at the CT Directorate, to the national security mission sets that were in country and around country in the manning and equipment. So, generally speaking, what I did was, from a national security perspective, was obtained my policy and operational directives from the chain of command, and I implemented all of them that were lawful and appropriate.

Mr. Glabe. Just for the record, we'd like to submit what's been marked as exhibit 5, K. Patel Exhibit 5-1. It's an op-ed in the New York Post, entitled "I Ran Team Trumps Afghan Withdrawal: Biden's Attempt to Blame Us Is Just Sad," that speaks to some of the things that Mr. Patel was involved in at DOD related to Afghanistan policy and its continuity with the ongoing peace process as he just described.

Mr. Patel. Thanks.

 * BY :

Did you discuss what your role would be in terms of the transition to the Biden-Harris team?

With who?

The President.


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81 [2:12 p.m.]

 * BY :

What was your understanding of what your role was going to be in the sense of it would now be after President-elect Biden had been declared the winner of the 2020 Presidential election? Did you discuss what your plans were for the next 2 months in that role?

In that role, same—you know, the question appears; it does implicate core privilege of executive privilege. I'm prepared to answer it, but I want the record to reflect my serious concerns about congressional overreach in this regard.

It was largely policy objectives that were—I was familiar with because, having been the deputy assistant to the President, senior director for counterterrorism, a lot of those mission sets folded over into one another. So we talked about policy and operational objectives generally that I can talk about here.

That'd be great. Go ahead.

Yeah. Generally speaking, he had stated publicly he wanted to wind some of the wars that were happening overseas. That was generally one of the policy objectives. And we at the CT Directorate were responsible for a large piece of that anyway in the National Security Council.

We were also similarly responsible for the hostage portfolio, American citizens detained and remained in captivity overseas. We were responsible for, in the National Security Council and the CT Directorate, for countering Iran, sanctions, wiping out Al Qaeda senior leadership, taking out the emirs of ISIS. A whole host of things that we had—I had continuously worked on seemed to merge with some of those priorities that -- or policy decisions of the President.


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70 Mr. Glabe. This is what we were calling earlier the short form—

Uh-huh.

Mr. Glabe. —or the public version? Is that right?

Yes.

The Witness. Okay.

 * BY :

Are you familiar with some of the inconsistencies in the timeline between the DOD timeline and the D.C. National Guard timeline as to when General Walker received the order to deploy to the Capitol?

I recall there being discussions about that. I don't recall, off the top of my head, what the inconsistencies were.

Okay.

The DOD timeline has the order at 4:32, given by Secretary McCarthy—

Sorry, on what date?

On January 6th. And the D.C. National Guard timeline has an order coming from General McConville at 5:08.

If you don't have any visibility into it, it's fine. I just wanted to ask.

Sure. I don't think I do. General McConville reported—he was the Chief of Staff, not—it's a colloquial term we throw around in government. The CNOS and the Chief of Staff and Chief of Space Operations are the highest-ranking uniformed officers for the Secretary of the Army who reported to the Secretary of the Army. So my interactions with General McConville were generally limited. My interactions were with Secretary McCarthy.

On the day of and in the days following, were you aware of any discussions of invoking the 25th Amendment concerning the President?


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71 What time period?

On January 6th or in the days following.

I don't recall any discussions about the 25th Amendment.

Before I move on to kind of the transition issues and post-January 6th, are there any questions?

Yeah, just a couple things.

 * BY :

Mr. Patel, during the day of January 6th, do you remember any discussion with anyone about whether or not it would be useful for the President to issue a statement asking people to stop or not behave violently?

The day of, I'm not sure I remember that. I remember seeing it come out later that there was some sort of message or tweet put out about disbanding or dispersing. But do I have personal knowledge about how that message was derived? I don't think so.

Again, listen to the question: During the day, do you remember any discussion with anyone about whether or not it would be useful for the President to issue some kind of statement discouraging violence?

I don't remember that. On January 6th I don't remember that.

You don't remember anybody ever raising that as a possibility or as something that might help?

It might've happened. I just don't remember it.

Today, again, no recollection that anyone raised that?

I don't have an independent memory of that.

Did anyone, in your recollection, make any attempt to encourage the White House, Mr. Meadows or others—


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73 So did we have retrospective conversations on it? Possibly. But, again, I don't really remember it. I'd have to look at those statements and talk to those people.

Would it have been helpful, in your view?

For the President to discourage violence on January 6th. Would it have made the National Guard's job, the Department of Defense's job easier had such a statement been issued earlier?

Would it have been—so, hypothetically?

To do what?

You're the chief of staff to the Department of Defense at this time.

Yeah.

Would it have made you, writ large, the Department of Defense's job easier if the President of the United States had come out and aggressively said, "Stop, go home," condemned violence—

Mr. Glabe. Hold on. Do you have information about the time when the President did make public statements? Because that would important for contextualizing his opinion.

 * BY :

I'm just asking you, Mr. Patel, would it have made—

[Discussion off the record.]

 * BY :

Would it have made your job easier if such a statement had been made earlier?

Mr. Glabe. Earlier than what?

Earlier than when it was made.

Mr. Glabe. But when was it made?


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74. Like, 4:30, 5 o'clock at night, hours after the Capitol was breached.

The Witness. Okay. So you're asking me to speculate on a statement—

 * BY .: [sic]

Yes, I am.

—that was, now we've found out, made at 4:00, 1600 in the afternoon.

I don't know how I can answer that beyond—if you want me to guess, I'll guess. But I can't really answer that question. It's a hypothetical.

You're, at the time, chief of staff to the Acting Secretary of Defense

Uh-huh.

—focused very much on, from your prior testimony, the deployment of the National Guard, trying your best to sort of quell the unrest.

Uh-huh.

Would that job, that overall mission, have been made easier if the President of the United States had said earlier, "Go home, don't be violent"?

Well, I'm not a soldier at that day—

Okay.

—so I wasn't in uniform, so I can't tell you if it would've been easier in the streets to do that job. Our job was to mobilize, deploy, and employ them. That was not interrupted by anything on that day, as I recall.

Yeah. Okay. You really haven't answered my question, but we can move on.

Mr. Sofer. Actually, just for the record, I think he's answered it a number of times. And you're asking for rank speculation.

Yeah. I'm asking whether the chief of staff to the Acting Secretary of Defense thinks it would've enhanced the mission of the Department of Defense if there


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75 had been an earlier statement condemning violence.

Mr. Sofer. And, again, I think he's answered your question. It's clear you're asking for him to essentially read some sort of crystal ball, which is impossible.

I'm just asking for whether or not it would've helped him perform his mission.

But, again, if you don't want to answer the question, then we can move on.

Mr. Sofer. He did answer the question.

The Witness. Yeah, I just want to be clear, that's your opinion. I've answered the question. If you want to lay a record as to my answer on your opinion, go ahead.

 * BY :

Mr. Patel, I want to go back to when you were first appointed to DOD on November 10th.

Uh-huh.

How did your appointment to DOD come about, in terms of who you were in contact with?

I believe it was—if you say it's November 10th, I believe you. It was, like, right around, like, the morning after the election. So I'm not really sure what that date was.

Exhibit 1 has it as November 10th as a start date for you.

But the question is, how did your appointment—

Mr. Sofer. Just give us 1 second, sorry—

Sure.

Mr. Sofer. —while we take a look at exhibit 1.

The Witness. Okay. Gotcha. Okay.

So how did my appointment come about? Acting, then—I guess technically he


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 the occurrences of the day, and his affair with the Baron. His blood being in a violent fermentation, he tormented himself for some time with ruminating on the bad consequences the latter might produce. Yet the association of ideas at length brought him back again to Caroline; he wandered from one smiling reverie to the other, and at last fell asleep.

His situation being, however, not very easy, he awoke after he had slept about half an hour. In his drowsiness he imagined to have rested on my sofa as usual, took up his candle, and wished me a good night, supposing that I was gone to bed. He went softly down stairs, and thus came to the apartment where the mantua-maker was fallen fast asleep in the arms of her new paramour, and, notwithstanding his perceiving some change in the furniture, yet he still imagined to be in his own apartment, and was astonished at his heavy drowsiness, which, as he thought, represented every object in a

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spite of Aunt Gertrude's ingenious explanation of the letter, the Hardy boys were not quite satisfied. When they left the house they walked downtown, discussing the matter.

"Aunt Gertrude may be right, but somehow I think those fellows sent the letter to the house, believing dad was still there," declared Joe.

"But if they knew he was at the house, or thought he was at the house, he would know we weren't kidnapped."

"Yes, that's right," Joe admitted, puzzled. "I'm hanged if I can figure it out, but I still think there is more to that letter than Aunt Gertrude imagines."

"I have that idea myself. You noticed that they were very particular to tell how the ransom money was to be delivered. That was quite an elaborate stunt, to have the money thrown off the train at a grade crossing. That would mean that the crooks could come along in a car, snatch up the package and be away without

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Rh much risk of capture. They'd hardly go to the trouble of outlining all that if they didn't mean something by it."

"Yes, if the letter was only sent as a blind to bring dad back to Bayport you'd hardly think they'd go into all that detail."

"Still," Frank pointed out, "here we are, safe and sound. Haven't been kidnapped yet, and nobody has tried to kidnap us. If that letter had been sent to Chet's people, for instance, or to the Hoopers, they would have something to worry about." Suddenly he stopped and looked at Joe. "Say!" he exclaimed. "There's an idea!"

"What?"

"Chet and Biff!" declared Frank excitedly. "Don't you see? This may have something to do with them. Chet and Biff are missing. Perhaps they have been kidnapped."

"But why should any one kidnap them?" Joe looked wonderingly at his brother.

"In mistake for us. Don't you see it? Perhaps this gang mistook Chet and Biff for you and me and kidnapped them! Then they wrote the letter to dad."

"Gee, I never thought of that!" Joe exclaimed. "I'll bet dollars to doughnuts that you're right."

"Don't you remember the day we were all out in the boat and the three men came so close

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 different manner to his eyes. He now began to undress himself, opened the curtains, and placed the table with the candle near the bed, to extinguish it when he should have gone to bed. But unfortunately one of the Baron's boots laying on the floor, he put one foot of the table upon it, the candle dropped down, and fell burning into the face of the former. The Baron awoke with a terrible scream; and it may easily be conceived how much the Count was astonished to see his bed occupied by his mortal enemy. Being of a very irascible temper, his astonishment was turned into the most violent rage at that supposed impertinence. He uttered a dreadful oath, and ran to the corner in which he had placed his sword; but being not able to find it, he rung with such a vehemence for his servants, that the string of the bell broke; for being at a loss to account for that incident, he was determined to chastise the Baron in an exemplary manner.

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76 to us? Remember how closely they looked at Chet and Biff? Perhaps those fellows had been tipped off that you and I were in the boat and wanted to get a look at us so they could identify us when they got a chance to kidnap us. And instead of looking at us, they picked on Chet and Biff. They knew we owned a boat, but they wouldn't know that Biff had one. Therefore they'd think that the chap at the wheel would be either you or me."

"It hangs together, all right. And then, remember when we saw those same three men hanging around the Morton farm? They must have trailed Chet home to see where he lived. And all the time they thought he was either you or me!"

"I think we're getting at the truth of it, Joe. When Chet and Biff started on their trip, those fellows followed them or lay in wait for them some place and captured them."

Just then the Hardy boys met Phil Cohen and Tony Prito in front of the fruit stand of their friend, Nick the Greek, each with a bottle of pop.

"Hello," was Tony's greeting. "Have one?" he invited, indicating the pop.

"Don't mind if we do, even if it is just after breakfast."

Nick the Greek dexterously opened two bottles of pop and slapped them down on the

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Rh counter. "Hot day, eh?" he said, as the boys reached for straws.

"You bet it's hot." After a satisfying gurgle of the ice-cold pop, the Hardy boys turned to their chums. "We have a clue," declared Frank.

"About what?"

"About Chet and Biff."

"Yes?" Tony and Phil were immediately interested. "What's up?"

Frank then told them of the incident of the letter and, often prompted by his brother, explained how they had connected it with the disappearance of their chums.

"And so," he concluded, "we've figured that Chet and Biff may have been kidnapped in mistake for us."

"There's something in that, too," agreed Phil. "And here's something else that may help. I forgot about it when we were searching for the fellows the other day. Just a little while before they went on their trip I was talking to Chet and Biff and I remember that Biff said he had always wanted to visit Blacksnake Island."

"Blacksnake Island!" exclaimed Frank. "That's the place that is overrun with big blacksnakes, isn't it? Nobody ever goes there."

"That's the place, and that's why it's called

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78 Blacksnake Island. And you can't blame people for staying away from it—with a name like that. But Biff had read about it and said he wanted to see what the place was like."

"That's Biff all over," agreed Tony. "But did they decide to go?"

"Chet didn't want to go. Blacksnake Island is down the coast, and Chet wanted to go up the coast."

"Sure! That's why we searched up the coast—because Chet said that was where they were going!" Frank declared.

"Well, Biff kept on saying that he wanted to see Blacksnake Island anyway, and while Chet wasn't very much struck with the idea he might have gone there."

"Perhaps they went that way after all. I wish we'd known that when we made our first search. They might have started for Blacksnake Island and got captured on the way." Frank drained the last of his bottle of pop. "Say, I'd like to start another search for them, and go down the coast in that direction. What do you say?"

"I guess I can get away all right," said Tony. "How about you, Phil?"

"It's O.K. with me."

"We'll probably find it hard to get away," said Frank doubtfully. "We'll go home and ask mother, anyway. You see, we're supposed

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text:
Author:Nicholas Greenberry Ridgely

Works

 * Cotton Is King

title: Author:Nicholas Greenberry Ridgely


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 da, interrupting her) forgive me that I have revived such terrible images to your mind; let not my curiosity occasion such painful ideas, at least we will enjoy the present hour with mutual satisfaction, and defer your painful recital 'till another day." "Charming girl, (said the lady) I accept the delay you offer me, and am happy that I can assure you of an asylum whenever you grow tired of this castle. I have a sister in France, married to the Marquis de Melfort, she is one of the best of women; she is no stranger to my situation and has repeatedly wished me to come into the world and reside with her, but I have powerful reasons for refusing, though she is the dearest friend I have on earth, and I am certain will rejoice to offer you an accommodation in her house, and a place in her heart, as she has no children to engage her attention."

Matilda made the warmest acknowledgements for this kind offer, but said, unaccustomed as she was to the busy world, she was apprehensive Paris would be the last place she ought to reside in, particularly as her uncle might go


text: The Works of the Emperor Julian

title: The Works of the Emperor Julian


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 there, having property and friends in that city, and she might run the hazard of being discovered.

Whilst she was speaking the lady's attendant entered with a letter, "Joseph has just brought this, my lady." "Joseph! (repeated Matilda, involuntarily.) "Yes, (said the lady, smiling) your friend Joseph is my friend also; this letter is from my sister—but bid our old friend step in." Joseph entered, but started back with surprise when he beheld Matilda seated quietly in the room,—"Good Lord! (cried he) how came young madam here?" "This lady's courage, you see, has penetrated through our secret, and now we have no occasion for any reserve before her, she will as carefully guard it from your wife as you do." "Lord! I am sure (answered Joseph) it goes to my heart to keep any thing from poor Bertha, she is such a good creature, but women's tongues will blab sometimes, to be sure, and as I have sworn to your ladyship, God forbid I should break my oath, though


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immediately set out on a reckless yet precisely deadly campaign of reprisal against the North Side mob led by the redoubtable Schemer Bruno. He was beginning to have a sneaking respect for the notorious Schemer. He had seen plenty of examples of that wily leader's sagacity and ruthless courage and that business at the cabaret had been the final touch. A man who could, an hour after an attempt had been made on his life, sit in a cabaret but a few tables away from the man he knew to be responsible for that attempt, was a man worthy of admiration. But the realization of his opponent's courage and ability only strengthened Tony's will to win and forced him to plan out amazing coups.

They bombed warehouses, hi-jacked trucks both singly and in fleets, intimidated still-owners who helped supply the North Side outfit into moving and shot a few as an example to the others, browbeat saloonkeepers into shifting their allegiance and promised them ample protection for doing so;

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 often and often I have longed to tell my wife." "However, Joseph (said the lady, gravely) I depend upon your honesty and oath." "You have nothing to fear, my lady, eighteen years practice has learnt me to hold my tongue; have you any further commands?" The lady replying in the negative, he made his bow and retired.

"That man is a faithful good creature, I owe my life to him; I know nothing of his wife, though I am told she is a worthy woman; but as a secret should never, if possible, be trusted to chance or accident, I made him swear not to reveal mine, without permission from me." Matilda exprest her satisfaction that the lady had such a faithful servant, and taking a book from the table, requested she would open her letter.

This being complied with, she presently exclaimed, "Alas! my brother and sister are going within a month to England, perhaps to stay some time; yet why should I


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 victim to kill his charmer, though that individual, knowing the pleasure so doing would afford his victim, takes good care to go on a journey, and to keep out of the way until the charm has worked out in suicide. There is a certain amount of common sense in this proceeding which is undoubtedly true African, but there is a sort of imaginative touch which makes me suspect Mohammedan infusion; anyhow, I leave you to judge for yourself whether, presupposing you accept the possibility of a man doing such a thing to you or to any one you love, you think he can be safely ignored, or whether he is not an enemy to society who had better be found out and killed—killed in a showy way. Personally I favour the latter course.

There is but one other point in witchcraft in West Africa that I need now detain you with, and that is why a person killed by witchcraft suffers more than one who dies of old age, for herein lies another reason for this hatred of witchcraft. Every human soul in West Africa throughout all the Fetish schools is held to have a certain proper time of incarnation in a human body, whether it be one incarnation or endless series of incarnations; anything that cuts that incarnation period short inconveniences the soul, to say the least of it. Under Ellis's school, and I believe throughout all the others, the soul that lives its life in a body fully through is held happy; it is supposed to have learnt its full lesson from life, and to know the way down to the shadow-land home and all sorts of things. Hence also comes the respect for the aged, common throughout all West Africa. They are the knowing ones. Such an one was the late Chief Long John of Bonny. Now if this process of development is checked by witchcraft and the soul is prematurely driven from the body, it does not know all that it should, and its

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 condition is therefore miserable. It is, as it were, sent blind, or deaf, or lame into the spirit-land. This is a thing not only dreaded by individuals for themselves, but hated for those they love; hence the doer of it is a hated thing. You must remember that when you get keen hatred you must allow for keen affection, it is not human to have one without the other. That the Africans are affectionate I am fully convinced. This affection does not lie precisely on the same lines as those of Europeans, I allow. It is not with them so deeply linked with sex; but the love between mother and child, man and man, brother and sister, woman and woman, is deep, true, and pure, and it must be taken into account in observing their institutions and ideas, particularly as to this witchcraft where it shows violently and externally in hatred only to the superficial observer. I well remember gossiping with a black friend in a plantation in the Calabar district on witchcraft, and he took up a stick and struck a plant of green maize, breaking the stem of it, saying, "There, like that is the soul of a man who is witched, it will not ripen now."

We will now turn to the consideration of that class whose business in life is mainly to guard the community from witchcraft and from miscellaneous evil spirits acting on their own initiative, the Fetish Men of West Africa, namely, those men and women who devote their lives to the cult of West African religion. Such people you find in every West African district; but their position differs under different schools, and it is in connection with them that we must recognise the differences in the various schools, remembering that the form of Fetish makes the form of Fetish Man, not the Fetish Man the form of Fetish. He may, as it were, embroider it, complicate it, mystify it,

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text: Author:Grigorii Efimovitsch Grum-Grshimailo


text:
Addonizio v. United States/Dissent Douglas

MR. JUSTICE DOUGLAS, dissenting.

At the trial involved in these cases there was much evidence of corrupt practices by the administration of petitioner Addonizio during his tenure as mayor of Newark, New Jersey. But the question posed to the [p937] jury below was not whether these petitioners had engaged in corrupt practices, but the narrower issue of whether they had entered into and executed a criminal agreement to extract kickbacks from public contractors through threats of physical harm or economic ruin in violation of 18 U.S.C. § 1951. Although the petitioners were charged with 65 substantive acts of coercive extraction of kickbacks, the key issue in the trial was who, if anyone, had conspired to commit these acts. Absent a finding that such a confederation had been formed, most of the evidence which damaged the petitioners could not have been introduced at all inasmuch as this evidence was hearsay admitted provisionally under the so-called coconspirator exception. That the jury found a conspiracy to have existed, however, was under the circumstances of this trial the unsurprising and virtually inevitable result of the many disabilities imposed upon an accused by the ordeal of a multi-defendant conspiracy prosecution.

[p938] Mr. Justice Jackson catalogued many of these disabilities in his well-known concurrence in Krulewitch v. United States, 336 U.S. 440, 446 (1949), reversing a conspiracy conviction, where he concluded that the prevailing "loose practice as to [the conspiracy] offense constitutes a serious threat to fairness in our administration of justice." He criticized the tendency of courts to dispense "with even the necessity to infer any definite agreement, although that is the gist of the offense." Id., at 452. As to the procedural evils of this device he found that the risk to a codefendant of guilt by association was abnormally high: "'A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other.' Id., at 454."

Mr. Justice Jackson also regretted the wide leeway that prosecutors enjoyed in the broad scope of evidence admissible to prove conspiracy (and consequently to prove substantive acts as well). Under conspiracy law, the declarations and acts of any confederate in furtherance of the joint project are attributable to and admissible against all of its participants. This is true even if the declarant is not available for cross-examination. Moreover, such statements are admissible "subject to connection" by the prosecutor later in the trial. At the close of the Government's case, for example, the judge may believe that the Government failed to present a jury question as to a defendant's participation in a [p939] collective criminal plot. In such a case, the judge must ask the jury to disregard the provisionally admitted hearsay. Obviously, however, it will be difficult in a lengthy trial (such as this one filling 5,500 pages of transcript) for jurors to excise the stricken testimony from their memories. In the alternative case where the judge believes that a jury question has been presented as to a defendant's participation in a criminal enterprise, the jury is permitted to consider the provisionally admitted matter in determining whether or not a defendant was a conspirator. In other words, the jury is allowed to assume its ultimate conclusion. Mr. Justice Jackson was particularly sensitive to the abuse potential in this vicious logic: "'When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F. 2d 54.' Id., at 453."

[p940] There are other disabilities. Often testimony will be receivable only against a particular codefendant, yet it may also inculpate another accused such as where (a) a codefendant "opens the door" to prejudicial evidence by placing his reputation in issue, (b) a codefendant wants to place before the jury information which is helpful to him but is damaging to other defendants, or (c) the Government desires to offer evidence admissible against loss than all of the codefendants. Cautionary instructions, of course, are routinely given where such circumstances arise but we have often recognized the inability of jurors to compartmentalize information according to defendants. Bruton v. United States, 391 U.S. 123 (1968). See also Jackson v. Denno, 378 U.S. 368, 388 (1964); Krulewitch v. United States, supra, at [p941] 453 (quoted above). This shortcoming of the jury is compounded when, as here, the jury is also asked to digest voluminous testimony.

A victim of the multi-defendant conspiracy trial has fewer options for trial strategy than the ordinary defendant tried alone. Counsel may reluctantly give up the option of pointing the accusing finger at his client's codefendants in order to obtain similar concessions from other trial counsel. Counsel must also divert his preparation in part toward generating possible responses to evidence which may be admissible only against other codefendants. As for the defendant, he may be put to the choice of hiring less experienced counsel or less actively pursuing discovery or investigation because of the higher legal expenses imposed by longer joint trials. Furthermore, although an accused normally has "the right to present his own witnesses to establish a defense," Washington v. Texas, 388 U.S. 14, 19 (1967), an accused in a mass conspiracy trial may not put on his codefendants without their prior waivers of their absolute rights not to testify.

All of these oppressive features were present in various degrees in this trial. But, in particular, the most onerous burden cast upon these petitioners was their inability to cross-examine each other as to comments which Government witnesses said they had heard them utter. The Court of Appeals recognized that "[t]here [p942] was much testimony as to statements made by various co-conspirators during the course, and in furtherance of the conspiracy." 451 F. 2d 49, 71. For example, one important prosecution witness testified that he had been a contractor hired by the city administration and that one of the accused conspirators, "Tony Boy" Boiardo, had told him: "You pay me the 10%... I take care of the Mayor. I take care of the Council." (App. 2611a.) The lawyer for the former mayor, however, was not permitted to put Boiardo on the stand and to ask him whether Addonizio had, in fact, entered into an agreement with him to coerce kickbacks. This handicap of an accused is at war with the holdings of this Court that a defendant should be permitted to confront his accusers, especially where, as here, their declarations might have been purposely misleading or self-serving. Pointer v. Texas, 380 U.S. 400, 407 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Brookhart v. Janis, 384 U.S. 1 (1966); Bruton v. United States, supra; Barber v. Page, 390 U.S. 719 (1968); Roberts v. Russell, 392 U.S. 293 (1968). Dutton v. Evans, 400 U.S. 74 (1970), is not inconsistent with this proposition. There the Court found that the hearsay was probably reliable. "[T]he circumstances under which [the declarant] made the statement were such as to give reason to suppose that [he] did not misrepresent [his coconspirator's] involvement in the crime." Id., at 89. On the other hand, involved here were declarants, as mentioned earlier, who might have been motivated to misrepresent the roles of other parties in order to induce contractors, such as Rigo (the Government's key witness), to make kickbacks. Moreover, in Dutton the hearsay was "of peripheral significance at most," whereas here much of the case against the petitioners, as the [p943] Court of Appeals pointed out, was admitted under the coconspirator exception to the hearsay rule.

In addition, the petitioners were deprived of the right to cross-examine codefendant Gordon (who is not one of the petitioners). He had testified at the prior grand jury proceeding and that testimony was introduced at trial by the Government to corroborate the story of the Government's key witness, Rigo, as to various kickback transactions. The circumstances at trial were substantially similar to those involved in Bruton except that Gordon's grand jury remarks did not directly mention his codefendants. Normally, that difference would be sufficient to support the lower court's finding that Bruton was inapposite but for the fact that the Government's case against all of the defendants turned upon Rigo's credibility. On cross-examination of Rigo, the codefendants had relentlessly attacked his credibility. But when the Government introduced the grand jury transcript in rebuttal, the defense challenge was completely terminated because Gordon, who was also on trial, could not be called to the stand. The judge, of course, gave instructions to the jury to consider the impact of the transcript upon Rigo's credibility only when assessing Gordon's guilt, but it is doubtful that the jurors could faithfully adhere to the delicate logic that Rigo may have told the truth as to Gordon but [p944] may have lied as to his codefendants. The contrary conclusion, to borrow from Mr. Justice Jackson, would be "unmitigated fiction." Krulewitch v. United States, supra, at 453.

In light of the claims of prejudice committed in this multi-defendant conspiracy trial, I would grant certiorari to consider whether the extensive reliance by the prosecutor on the coconspirator exception to the hearsay rule and the admission of the Gordon transcript deprived these petitioners of constitutional rights.


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 as is the nature of all specialists in all professions, but primarily he is under it, at any rate in West Africa, where you find the Fetish man in every district, but in every district in a different form. For example, look at him under the Ellis school. Where there are well-defined gods, there your Fetish Man is quite the priest, devoting himself to the cult of one god publicly, probably doing a little general practice into the bargain with other minor spirits. To the laity he of course advertises the god he serves as the most reliably important one in the neighbourhood; but it has come under my notice, and you will find under Ellis's, that if the priest of a god gets personally unwell and finds his own deity ineffective, he will apply for aid to a professional brother who serves another god. Below Ellis's school, in the Calabar school, your Fetish Man is somewhat different; the gods are not so definite or esteemed, and the Fetish Man is becoming a member of a set of men who deal with gods in a lump, and have the general management of minor spirits. Below this school, in the Mpongwe, the Fetish Man is even less specialised as regards one god; he is here a manager of spirits at large, with the assistance of a strong spirit with whom he has opened up communication. Below this school, in that of Nkissi, the Fetish Man becomes more truly priest-like—he is the Nganga of an Nkiss; but nevertheless his position is a different one to that of the priest in Ellis's school; here he is in a better position than in the Mpongwe school, but in an inferior one to that in Ellis's, where he is not the lone servitor or manager for a god, but a member of a powerful confraternity. You must bear in mind, of course, that the Fetish Man is always, from a lay standpoint, a highly important person; but professionally, I cannot but think, a priest say of Tando in

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 Ashantee or of Shango in Dahomey, is of a higher grade than a Nganga to an Nkiss, certainly far higher than a Fetish Man under the Mpongwe school, where every house father and every village chief does a lot of his own Fetish without professional assistance. Of course chiefs and house fathers do a certain amount in all districts—in fact, in West Africa every man and woman does a certain amount of Fetish for himself; but where, as in Ellis's school, you get a regular set of priests and plenty of them, the religion falls into their hands to a greater extent. I feel that the study of the position of Fetish-Men is deserving of great attention. I implore the student who may take it up to keep the Fetish Man for practical purposes distinct from the gentleman who represents the law god-cult—the secret tribal society. If you persist in mixing them, you will have in practical politics as fine a mess as if you mixed up your own Bench of Bishops with the Woolsack. I beg to contribute to the store of knowledge on this point sundry remarks sent me on most excellent native authority from the Gold Coast:—

"The inhabitants of Cape Coast must congratulate themselves that they enjoy the protection of seventy-seven fetishes. Every town (and this town) has one fetish house or temple, often built in a square or oblong form of mud or swish, and thatched over, or constructed of sticks or poles placed in a circular form and thatched. In these temples several images are generally placed. Every Fetish-Man or priest, moreover, has his private fetishes in his own house, one of a bird, stones encased by string, large lumps of cinder from an iron furnace, calabashes, and bundles of sticks tied together with string. All these are stained with red ochre and rubbed over with eggs. They are placed on a square platform and shrouded from the vulgar gaze.

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 "The fetishes are regarded as spiritual intelligent beings who make the remarkable objects of nature their residence or enter occasionally into the images and other artificial representations which have been duly consecrated by certain ceremonies. It is the belief of this people that the fetishes not unfrequently render themselves visible to mortals. Thus the great fetish of the rock on which Cape Coast Castle stands is said to come forth at night in human form, but of superhuman size, and to proceed through the town dressed in white to chase away evil spirits.

"In all the countries along the Coast (Gold) the regular fetish day is Tuesday. The fishermen would expect that, were they to go out on that day, it would spoil their fishing.

"The priest's office may in some cases be hereditary, but it is not uniformly so, for the children of Fetish-Men sometimes refuse to devote themselves to the pursuits of their parents and engage in other occupations. Any one may enter the office after suitable training, and parents who desire that their children may be instructed in its mysteries place them with a Fetish-Man, who receives a premium for each. The order of Fetish-Men is further augmented by persons who declare that the fetish has suddenly seized on them. A series of convulsive and unnatural bodily distortions establish their claim. Application is made to the fetish for counsel and aid in every domestic and public emergency. When persons find occasion to consult a private Fetish-Man, they take a present of gold-dust and rum and proceed to his house. He receives the presents, and either puts a little of the rum on the head of every image or pours a small quantity on the ground before the platform as an offering

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 to the whole pantheon; then, taking a brass pan with water in it, he sits down with the pan between him and the fetishes, and his inquirers also seat themselves to await the result. Having made these preparatory arrangements, looking earnestly into the water, he begins to snap his fingers, and addressing the fetish, extols his power, telling him that the people have arrived to consult him, and requesting him to come and give the desired answer. After a time the fetish-man is wrought up into a state of fury. He shakes violently and foams at the mouth; this is to intimate that the fetish was come home and that he himself is no longer the speaker, but the fetish, who uses his mouth and speaks by him. He now growls like a tiger and asks the people if they have brought rum, requiring them at the same time to present it to him. He drinks, and then inquires for what purpose they have sent for him. If a relative is ill, they reply that such a member of their family is sick and they have tried all the means they could devise to restore him, but without success, and they, knowing he is a great fetish, have come to ask his aid, and beg him to teach them what they should do. He then speaks kindly to them, expresses a hope that he shall be able to help them, and says, "I go to see." It is imagined that the fetish then quits the priest, and, after a silence of a few minutes, he is supposed to return, and gives his response to the inquirers.

"In cases of great difficulty the oracle at Abrah is the last resort of the Fantees. This notable oracle is always consulted at night. They find a large fire made upon the ground, and the presents they have brought they place in the hands of the priests who are in attendance. They are then directed to elevate their presents above their heads

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 and to fix their eyes steadfastly upon the ground, for should they look up, the fetish, it is said, would inflict blindness on them for their sacrilegious gaze. After a time the oracle gives a response in a shrill, small voice intended to convey the idea that it proceeds from an unearthly source, and the inquirers, having obtained the end of their visit, then depart.

"In cases of bodily affliction the fetish orders medical preparations for the patient. If the malady of the patient does not appear to yield to such applications, the fetish is again consulted, and in some cases, as a further expedient, the priest takes a fowl and ties it to a stick, by which operation it is barbarously squeezed to death. The stick is then placed in the path leading to the house for the purpose of deterring evil spirits from approaching it. When the patient is a rich man, several sheep are sacrificed, and he is fetished until the last moment arrives amidst the howls of a number of old Fetish Women, who continue to besmear with eggs and other medicine the walls and door-posts of his house and everything that is around him until he has ceased to breathe."

Not only does the African depart from life under the care of Fetish-Men—and, as my valued correspondent ungallantly remarks, "old fetish-women"—but he is met, as it were, by them on his arrival. My correspondent says "as soon as the child is born the Fetish-Man binds certain fetish preparations round his limbs, using at the same time a form of incantation or prayer. This is done to fortify the infant against all kinds of evil. On the eighth day after the birth, the father of the child, accompanied by a number of friends, proceeds to the house of the mother. If he be a rich man, he takes with him a gallon of ardent spirits to be used on

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]

, Dec. 13.—Mr. S. Laing exhibited an interesting collection of human remains, stone implements, and other articles which had recently been obtained in some extensive excavations which he has been carrying on at Caithness, and which are believed to date from a very remote period in the history of man. Mr. Laing gave an account of his explorations and described the various articles which had been found, and a lively discussion followed, in which Professor Huxley, Dr. Thurnham, and others took part.

, December 14, 1864.—Various presents were announced, amongst which was Mr. Bridgeman's mahogany rotating-table, a simple and ingenious contrivance, whereby several persons may use the same microscope without leaving their seats. It consists of a stout board, sufficiently large to hold a microscope and lamp, a heavy pivot of iron is fixed beneath at one end, and at the two corners of the opposite end two casters at such an angle as to cause the board to rotate freely. It is very steady, and offers considerable advantages to those who are indisposed to incur the expense of an ordinary rotating-table.

Notice having been given of a subject for discussion, viz., "The most advantageous means of illuminating objects under the microscope," the president explained at considerable length his experience in the matter, and confined himself more particularly to—1, sources of light; 2, condensed or uncondensed light; 3, histiological subjects; and 4, minute structures, diatoms, &c. Having tried gas, napthalized gas, camphine, and the other volatile oils, he considered Belmontine to possess a greater amount of those properties so very desirable for microscopic work, than any of the others he had named, as it gives a white light, burns steadily, and does not readily carbonize. He likewise generally approved of oblique rays. One member strongly advocated direct rays, whilst another referred to the frequent advantage of diffused light. Mr. Shadbolt disapproved of the Belmontine of the present day, but spoke favourably of "Diamond Crystal oil." Mr. Glaisher stated he had used gas and camphine, but both had been set aside in favour of "Carbonile," a recent invention, which after a three months' trial, he thought superior to anything he had hitherto used. Mr. Tomkins exhibited a small working model of the necessary arrangement for obtaining this light, by passing ordinary coal gas over the "carbonile" contained in a vessel constructed for the purpose. The effect was magical, and the light dazzling, the flame being solid and white compared to the common gas flame, which in comparison was pale, thin, and vapoury. It was stated that it gives three times the ordinary light by an equal consumption of gas; consequently those who are content with their present amount of light can, by means of "carbonile," obtain it at one-third the cost for gas. Mr. Slack was announced to read a paper on the "Vinegar Plant" at the next meeting.

(London).—The Second Annual Meeting of this Society was held at 192, Piccadilly, on Wednesday evening, Dec. 21st, when the President delivered an Address embodying a Report of the Society's Proceedings during the past year. He stated that the excursions on Saturday afternoons had taken place during the favourable weather, with more or less success. The annual excursion, to which a special day was devoted, was this year taken to Darenth Wood, in Kent. The interchange of specimens had hitherto been confined nearly exclusively to members, but it was hoped, at no very distant period, to extend it to other societies having similar objects. Papers had been read with tolerable regularity, and some of these had been deemed of sufficient importance and interest to be solicited for publication in the Journal of Botany, in which two or three had appeared. The Library and Herbarium were gradually increasing in extent and usefulness. The aggregate number of members was reported to be forty-seven, of whom fifteen had been elected during the year. The Treasurer presented a balance-sheet, showing a balance of upwards of £5 in favour of the Society, which, considering the very low rate of annual subscription, was admitted to be highly satisfactory. After the usual complimentary resolutions of thanks to the Officers, they were unanimously re-elected for the ensuing year, and a Council of four members was constituted to conduct the business of the Society, so as to leave the entire evenings of meeting, for the future, free for the consideration of the subjects brought forward by members in their papers.

.—The Report of the Committee for the year 1863 proves this Society to be in a flourishing condition. The aggregate number of members is 537; there is cash in the bank, property which it has been considered advisable to insure for £300, and evidence of good work done. The Saturday afternoon excursions have been well attended, and the winter soirées completely successful. These facts seem to prove the truth of the assertion at the commencement of the report, "of a daily-extending interest in the city and its neighbourhood, with respect to pursuits and studies such as the Field Naturalists' Society was mainly instituted to promote." One work which this Society has accomplished will commend itself to botanists all over the country. It is the registration and publication of a list of all the mosses found in the neighbourhood of Manchester, which list is appended to the Report. Mr. G. E. Hunt, who was the presiding genius of this work, has conferred a boon on Bryologists, and set an example which other local societies would do well to imitate.

.—A society of naturalists has been formed, with every prospect of success, at the Star and Birch Inn, Morley. The meetings are held fortnightly. Mr. Daniel Slack has been elected president, and the Society numbers twelve members.

.—On his arrival in London, Mr. Thomas, in company with Mr. Nicol, called on Dr. Hunter; they found him dressing. "Well, young gentleman," said Hunter, when the first ceremonies of introduction were over, "so you are come to town to be a surgeon; and how long do you intend to stay?" "One year," was the reply. "Then," said he, "I'll tell you what, that won't do. I've been here a great many years, have worked hard, too, and yet I don't know the principals of the art!" After some further conversation, Mr. T. was directed to call again in an hour, which he did, and accompanied Hunter to the hospital, where he said to him, after the business was over, "Come to me to-morrow morning, young gentleman, and I will put you further in the way of things; come early in the morning, as soon after four as you can." It was summer: Mr. Thomas kept the appointment, and found Hunter, at that early hour, busily engaged is dissecting beetles.—Hunter's Memoirs.


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 tracts for borrowed money, fall altogether upon the borrower, and, in fact, are always paid by him. Duties of the same kind upon law proceedings fall upon the suitors. They reduce to both the capital value of the subject in dispute. The more it costs to acquire any property, the less must be the net value of it when acquired.

All taxes upon the transference of property of every kind, so far as they diminish the capital value of that property, tend to diminish the funds destined for the maintenance of productive labor. They are all more or less unthrifty taxes that increase the revenue of the sovereign, which seldom maintains any but unproductive laborers; at the expense of the capital of the people, which maintains none but productive.

Such taxes, even when they are proportioned to the value of the property transferred, are still unequal; the frequency of transference not being always equal in property of equal value. When they are not proportioned to this value, which is the case with the greater part of the stamp duties, and duties of registration, they are still more so. They are in no respect arbitrary, but are or may be in all cases perfectly clear and certain. Though they sometimes fall upon the person who is not very able to pay; the time of payment is in most cases sufficiently convenient for him. When the payment becomes due, he must in most cases have the money to pay. They are levied at very little expense, and in general subject the contributors to no other inconvenience besides always the unavoidable one of paying the tax.

In France the stamp duties are not much complained of. Those of registration, which they call the Contrôle, are. They give occasion, it is pretended, to much extortion in


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 the officers of the farmers-general who collect the tax, which is in a great measure arbitrary and uncertain. In the greater part of the libels which have been written against the present system of finances in France, the abuses of the Contrôle make a principal article. Uncertainty, however, does not seem to be necessarily inherent in the nature of such taxes. If the popular complaints are well founded, the abuse must arise, not so much from the nature of the tax, as from the want of precision and distinctness in the words of the edicts or laws which impose it.

The registration of mortgages, and in general of all rights upon immovable property, as it gives great security both to creditors and purchasers, is extremely advantageous to the public. That of the greater part of deeds of other kinds is frequently inconvenient and even dangerous to individuals, without any advantage to the public. All registers which, it is acknowledged, ought to be kept secret, ought certainly never to exist. The credit of individuals ought certainly never to depend upon so very slender a security as the probity and religion of the inferior officers of revenue. But where the fees of registration have been made a source of revenue to the sovereign, register offices have commonly been multiplied without end, both for the deeds which ought to be registered, and for those which ought not. In France there are several different sorts of secret registers. This abuse, though not perhaps a necessary, it must be acknowledged, is a very natural effect of such taxes.

Such stamp duties as those in England upon cards and dice, upon newspapers and periodical pamphlets, etc., are properly taxes upon consumption; the final payment falls upon the persons who use or consume such commodities. Such stamp duties as those upon licenses to retail ale, wine,


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 and spirituous liquors, though intended, perhaps, to fall upon the profits of the retailers, are likewise finally paid by the consumers of those liquors. Such taxes, though called by the same name, and levied by the same officers and in the same manner with the stamp duties above mentioned upon the transference of property, are however of a quite different nature, and fall upon quite different funds.

wages of the inferior classes of workmen, I have endeavored to show in the First Book, are everywhere necessarily regulated by two different circumstances; the demand for labor, and the ordinary or average price of provisions. The demand for labor, according as it happens to be either increasing, stationary, or declining; or to require an increasing, stationary, or declining population, regulates the subsistence of the laborer, and determines in what degree it shall be, either liberal, moderate, or scanty. The ordinary or average price of provisions determines the quantity of money which must be paid to the workman in order to enable him, one year with another, to purchase this liberal, moderate, or scanty subsistence. While the demand for labor and the price of provisions, therefore, remain the same, a direct tax upon the wages of labor can have no other effect than to raise them somewhat higher than the tax. Let us suppose, for example, that in a particular place the demand for labor and the price of provisions were such, as to render ten shillings a week the ordinary wages of labor; and that a tax of one-fifth, or four shillings in the pound, was imposed upon wages. If the demand for labor


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United States v. Mississippi Chemical Corp./Opinion of the Court

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Mississippi Chemical Corp. and Coastal Chemical Corp. (hereinafter taxpayers) instituted this action for a tax refund in the United States District Court for the Southern District of Mississippi. Both taxpayers are "cooperative associations" within the meaning of § 15 of the Agricultural Marketing Act, 46 Stat. 18, as amended, 12 U.S.C. § 1141j, and thus qualify for membership in one of the 12 "Banks for Cooperatives" (hereinafter Bank(s)) established by the Farm Credit Act of 1933, 48 Stat. 257, as amended, 12 U.S.C. § 1134 et seq. Since their principal places of business are located in Mississippi, their regional Bank is the one located in New Orleans.

The Farm Credit Act of 1933 provides that members may borrow money from their Banks and, soon after securing membership in the New Orleans Bank, the taxpayers elected to borrow. Thereafter, they were required by the Farm Credit Act of 1955, 69 Stat. 656, 12 U.S.C. § 1134d (a)(3), which partially amended the 1933 Act, to make quarterly purchases of $100 per value Class C stock of the Bank equal to not less than 10% nor more than 25% of the amount of the quarterly interest that they paid to the Bank on [p300] their loans. During the period relevant to this lawsuit, the rate set by the Bank was 15%.

On their tax returns for the years in question, the taxpayers claimed a $99 interest expense deduction for every $100 stock purchase required by the statute. The Commissioner of Internal Revenue disallowed the deductions, the taxpayers paid the assessed deficiencies, and this action arose.

The United States has consistently contended that the stock that the taxpayers were required to purchase under the 1955 Act is a capital asset as defined by § 1221 of the Internal Revenue Code, 26 U.S.C. § 1221, and that its cost is nondeductible. See 26 U.S.C. § 263. The taxpayers have persistently urged that the money expended for this stock is part of "the amount [they]... contracted to pay for the use of borrowed money," Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560 (1932), and is deductible as interest. 26 U.S.C. § 163 (a).

The District Court found for the taxpayers and the United States Court of Appeals for the Fifth Circuit affirmed over the dissent of Judge Godbold. 431 F. 2d 1320 (1970). We granted certiorari on February 22, 1971, to review the decision of the Court of Appeals. 401 U.S. 908. We reverse for the reasons stated below.

I
[p301] Early in this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U.S.C. § 641 et seq. The immediate purpose of the bill was "to afford those who [were] engaged in farming or who desire[d] to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than [were] present[ly] available." H.R. Rep. No. 630, 64th Cong., 1st Sess., 2. The long-range purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2-3; S. Rep. No. 144, 64th Cong., 1st Sess., 5.

The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called "national farm loan associations." Sec. 7, 39 Stat. 365.

In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5% of the total loan sought by its members. The [p302] association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.

The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structuring the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure: "'The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers.' H.R. Rep. No. 630, 64th Cong., 1st Sess., 9." Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.

[p303] To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.

The land bank system remained virtually untouched until the economic depression of the 1930's when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D.C.

These Banks were authorized to make loans to "cooperative associations," defined as "association[s] in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also... association[s] in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services." Agricultural Marketing Act § 15, 46 Stat. 18, as amended, 12 U.S.C. § 1141j.

The new Banks paralleled in many ways those already established under the 1916 legislation. The same [p304] regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%, the same amount of stock required of borrowers from land banks under the 1916 Act.

One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative institutions did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.

As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government's capital had been completely returned. S. Doc. No. 7, 84th Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns—owned, operated, and financed by farmers without Government assistance.

Congress also watched the development of the Banks for Cooperatives and became concerned about their lack [p305] of success in attracting and keeping private investment. By the 1950's, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U.S.C. § 636a, Congress stated that "[i]t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration..." A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.

The result of the Board's report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress' policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S. Doc. No. 7, 84th Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30-31.

II
Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock—A, B, and C.

Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no [p306] dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U.S.C. § 1134d (a)(1). Once the United States' stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers. See 12 U.S.C. §§ 1134d (a)(1), 1134b, 1134i.

Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U.S.C. § 1134d (a)(2).

Class C stock may be issued only to farmers' cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U.S.C. § 1134l (b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. "All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each [p307] borrower bears to the total interest earned on the loans of all borrowers during the fiscal year." Ibid. Borrowers also receive at the end of each fiscal year an "allocated surplus" credit which is payable out of the Bank's net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25% of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.

Only the tax treatment of the quarterly purchases is disputed here. The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends; it is transferable [p308] only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power; and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.

It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind. The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank's inability to [p309] repay the capital extended by the Government and to retain private capital on the provision in the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.

III
The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset that may be used as a set-off in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be [p310] purchased before an association could borrow from the Banks, under the taxpayers' theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.

It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a "hidden" interest charge in the legislation. The long-range goal was to make the Banks "fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them." Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made long-term investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.

Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345 (1971); Old Colony R. Co. v. United States, 284 U.S. 552 (1932); 26 CFR § 1.461-1.

We reject the contention that while the Class C [p311] stock may be a capital asset, it is worth only $1, and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes rather than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.

The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N.Y.U. 20th Inst. on Fed. Tax. 951 (1962). [p312] Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.

Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.

It is so ordered.

MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.


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 and the price of provisions remained the same, it would still be necessary that the laborer should in that place earn such a subsistence as could be bought only for ten shillings a week, or that after paying the tax he should have ten shillings a week free wages. But in order to leave him such free wages after paying such a tax, the price of labor must in that place soon rise, not to twelve shillings a week only, but to twelve and sixpence; that is, in order to enable him to pay a tax of one-fifth, his wages must necessarily soon rise, not one-fifth part only, but one-fourth. Whatever was the proportion of the tax, the wages of labor must in all cases rise, not only in that proportion, but in a higher proportion. If the tax, for example, was one-tenth, the wages of labor must necessarily soon rise, not one-tenth part only, but one-eighth.

A direct tax upon the wages of labor, therefore, though the laborer might perhaps pay it out of his hand, could not properly be said to be even advanced by him; at least if the demand for labor and the average price of provisions remained the same after the tax as before it. In all such cases, not only the tax, but something more than the tax, would in reality be advanced by the person who immediately employed him. The final payment would in different cases fall upon different persons. The rise which such a tax might occasion in the wages of manufacturing labor would be advanced by the master manufacturer, who would both be entitled and obliged to charge it, with a profit, upon the price of his goods. The final payment of this rise of wages, therefore, together with the additional profit of the master manufacturer, would fall upon the consumer. The rise which such a tax might occasion in the wages of country labor would be advanced by the farmer, who, in order


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 the festive occasion. On arriving at the house, the friends form a circle round the father, who delivers a kind of address in which he acknowledges the kindness of the gods for giving him the child, and calls upon those present also to thank the fetishes on his account; then, taking the child in his arms, he squirts upon it a little spirit from his mouth, pronouncing the name by which it is to be called. A second name which the child usually takes is that of the day of the week on which it is born. The following are the names of the days in the Fanti language, varied in their orthography according to the sex of the child:—

Those ceremonials called on the Coast "customs" are the things that show off the Fetish-Man at the best in more senses of the word than one. We will take the yam custom. The intentions of these yam customs are twofold—firstly they are a thanksgiving to the fetishes for allowing their people to live to see the new yams, and for the new yams, but they are also institutions to prevent the general public eating the new yam before it's ready. The idea is, and no doubt rightly, that unripe yams are unwholesome, and the law is that no new yams must be eaten until the yam custom is made. The Fetish-Men settle when the yams are in a fit state to pass into circulation, and then make the custom. It generally occurs at the end of August, but is sometimes

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