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RV 180 (BUDDENBROOKS) spectful enough, and had no notions in their heads; but several here and there among the young ones had shown by their bearing that the new spirit of revolt had entered into them. In the spring there had been a street riot, although a constitution corresponding to the demands of the new time had already been drafted; which, a little later, despite the opposition of Lebrecht Kröger and other stubborn old gentlemen, became law by a decree of the Senate. The citizens met together and representatives of the people were elected. But there was no rest. The world was upside down. Every one wanted to revise the constitution and the franchise, and the citizens grumbled. “Voting by estates,” said some—Consul Johann Buddenbrook among them. “Universal franchise,” said the others; Heinrich Hagenström was one of these. Still others cried “Universal voting by estates”—and dear knew what they meant by that! All sorts of ideas were in the air; for instance, the abolition of disabilities and the general extension of the rights of citizenship—even to non-Christians! No wonder Buddenbrook’s Trina had imbibed such ideas about sofas and silk gowns! Oh, there was worse to come! Things threatened to take a fearful turn.

It was an early October day of the year 1848. The sky was blue, with a few light floating clouds in it, silvered by the rays of the sun, the strength of which was indeed not so great but that the stove was already going, behind the polished screen in the landscape-room. Little Clara, whose hair had grown darker and whose eyes had a rather severe expression, sat with some embroidery before the sewing-table, while Clothilde, busy likewise with her needlework, had the sofa-place near the Frau Consul. Although Clothilde Buddenbrook was not much older than her married cousin—that is to say, only twenty-one years—her long face already showed pronounced lines; and with her smooth hair, which had never been blond, but always a dull greyish colour, she presented an ideal portrait of a typical old maid. But she was con-

RV 180 (180)


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RV 181 (BUDDENBROOKS) tent; she did nothing to alter her condition. Perhaps she thought it best to grow old early and thus to make a quick end of all doubts and hopes. As she did not own a single sou, she knew that she would find nobody in all the wide world to marry her, and she looked with humility into her future, which would surely consist of consuming a tiny income in some tiny room which her influential uncle would procure for her out of the funds of some charitable establishment for maidens of good family.

The Consul’s wife was busy reading two letters. Tony related the good progress of the little Erica, and Christian wrote eagerly of his life and doings in London. He did not give any details of his industry with Mr. Richardson of Threadneedle Street. The Frau Consul, who was approaching the middle forties, complained bitterly of the tendency of blond women to grow old too soon. The delicate tint which corresponded to her reddish hair had grown dulled despite all cosmetics; and the hair itself began relentlessly to grey, or would have done so but for a Parisian tincture of which the Frau Consul had the receipt. She was determined never to grow white. When the dye would no longer perform its office, she would wear a blond wig. On top of her still artistic coiffure was a silk scarf bordered with white lace, the beginning, the first adumbration of a cap. Her silk frock was wide and flowing, its bell-shaped sleeves lined with the softest mull. A pair of gold circlets tinkled as usual on her wrist.

It was three o’clock in the afternoon. Suddenly there was a noise of running and shouting: a sort of insolent hooting and cat-calling, the stamping of feet on the pavement, a hubbub that grew louder and came nearer.

“What is that noise, Mamma?” said Clara, looking out of the window and into the gossip’s glass. “Look at the people! What is the matter with them? What are they so pleased about?” RV 181 (181)

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RV 182 (BUDDENBROOKS) “My God!” shouted the Frau Consul, throwing down her letters and springing to the window. “Is it—? My God, it is the Revolution! It is the people!”

The truth was that the town had been the whole day in a state of unrest. In the morning the windows of Benthien the draper’s shop in Broad Street had been broken by stones—although God knew what the owner had to do with politics!

“Anton,” the Consul’s wife called with a trembling voice into the dining-room, where the servants were bustling about with the silver. “Anton! Go below! Shut the outside doors. Make everything fast. It is a mob.”

“Oh, Frau Consul,” said Anton. “Is it safe for me to do that? I am a servant. If they see my livery—”

“What wicked people,” Clothilde drawled without putting down her work. Just then the Consul crossed the entrance hall and came in through the glass door. He carried his coat over his arm and his hat in his hand.

“You are going out, Jean?” asked the Frau Consul in great excitement and trepidation.

“Yes, my dear, I must go to the meeting.”

“But the mob, Jean, the Revolution—”

“Oh, dear me, Betsy, it isn’t so serious as that! We are in God’s hand. They have gone past the house already. I’ll go down the back way.”

“Jean, if you love me—do you want to expose yourself to this danger? Will you leave us here unprotected? I am afraid, I tell you—I am afraid.”

“My dear, I beg of you, don’t work yourself up like this. They will only make a bit of a row in front of the Town Hall or in the market. It may cost the government a few windowpanes—but that’s all.”

“Where are you going, Jean?”

“To the Assembly. I am late already. I was detained by business. It would be a shame not to be there to-day. Do you think your Father is stopping away, old as he is?” RV 182 (182)


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RV 183 (BUDDENBROOKS) “Then go, in God’s name, Jean. But he careful, I beg of you. And keep an eye on my Father. If anything hit him—”

“Certainly, my dear.”

“When will you be back?” the Frau Consul called after him.

“Well, about half past four or five o’clock. Depends. There is a good deal of importance on the agenda, so I can’t exactly tell.”

“Oh, I’m frightened, I’m frightened,” repeated the Frau Consul, walking up and down restlessly.

RV 183 (183)


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French CJ

accurate summing-up, the lengthy period of retirement, a pertinent question asked by the jury and "the compelling, powerful evidence against the defendants".

Grove J drew a parallel between Betson and the present case. He rejected a distinction between the unconsciousness of a sleeping judge and the inattention of a judge who is not asleep. He said :

"The posited distinction is between causes, but what should be considered is effect. A judge (or anyone else) whose mind is disengaged from what is occurring by distraction, by deliberate choice or otherwise is as much a non participant as one whose mind has been disengaged by sleep."

His Honour also rejected analogies between a sleeping judge and a judge who absents himself from court during the address of counsel to the jury.

After referring to s 6(1) of the Criminal Appeal Act and observations by Gleeson CJ in Nudd v The Queen about the width of the concept of "miscarriage of justice" his Honour said :

"There has been no identified act or omission of the trial judge which has produced consequence [sic] that is asserted to be different from that which would have occurred if the judge had been bright-eyed throughout the entire process. Of course, as was observed in Betson, it is regrettable if a judge falls asleep or is inattentive but it is the effect not the fact which is crucial. The appellants have pointed to no adverse effect on the canvass of issues at trial nor upon their determination which has been derived from the judge's episodes of dormancy. There has been no failure of process of such a kind as to make it impossible for this Court to decide that the convictions were just."

His Honour went on to consider further arguments based upon s 11(1) of the District Court Act and s 80 of the Constitution.

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crossed his spacious ground floor in haste. Coming out into Bakers’ Alley, he heard steps behind him and saw Gosch the broker, a picturesque figure in his long cloak and Jesuit hat, also climbing the narrow street to the meeting. He lifted his hat with one thin long hand, and with the other made a deferential gesture, as he said, “Well, Herr Consul—how are you?” His voice sounded sinister.

This broker, Siegismund Gosch, a bachelor of some forty years, was, despite his demeanour, the best and most honest soul in the world; but he was a wit and an oddity. His smooth-shaven face was distinguished by a Roman nose, a protruding pointed chin, sharp features, and a wide mouth drooping at the corners, whose narrow lips he was in the habit of pressing together in the most taciturn and forbidding manner. His grey hair fell thick and sombre over his brow, and he actually regretted not being humpbacked. It was his whim to assume the rôle of a wild, witty, and reckless intrigant—a cross between Mephistopheles and Napoleon, something very malevolent and yet fascinating too; and he was not entirely unsuccessful in his pose. He was a strange yet attractive figure among the citizens of the old city; still, he belonged among them, for he carried on a small brokerage business in the most modest, respectable sort of way. In his narrow, dark little office, however, he had a large book-case filled with poetry in every language, and there was a story that he had been engaged since his twentieth year on a translation of Lope de Vega’s collected dramas. Once he had played the rôle of Domingo in an amateur performance of Schiller’s “Don Carlos”—this was the culmination of his career. A common word never crossed RV 184 (184)


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RV 185 (BUDDENBROOKS) his lips; and the most ordinary business expressions he would hiss between his clenched teeth, as if he were saying “Curses on you, villain,” instead of some commonplace about stocks and commissions. He was, in many ways, the heir and successor to Jean Jacques Hoffstede of blessed memory, except that his character had certain elements of the sombre and pathetic, with none of the playful liveliness of that old 18th century friend of Johann Buddenbrook. One day he lost at a single blow, on the Bourse, six and a half thaler on two or three papers which he had bought as a speculation. This was enough. He sank upon a bench; he struck an attitude which looked as though he had lost the Battle of Waterloo; he struck his clenched fist against his forehead and repeated several times, with a blasphemous roll of the eyes: “Ha, accursed, accursed!” He must have been, at bottom, cruelly bored by the small, safe business he did and the petty transfer of this or that bit of property; for this loss, this tragic blow with which Heaven had stricken him down—him, the schemer Gosch—delighted his inmost soul. He fed on it for weeks. Some one would say, “So you’ve had a loss, Herr Gosch, I’m sorry to hear.” To which he would answer: “Oh, my good friend, ‘uomo non educato dal dolore riman sempre bambino’!” Probably nobody understood that. Was it, possibly, Lope da Vega? Anyhow, there was no doubt that this Siegismund Gosch was a remarkable and learned man.

“What times we live in,” he said, limping up the street with the Consul, supported by his stick. “Times of storm and unrest.”

“You are right,” replied the Consul. “The times are unquiet. This morning’s sitting will be exciting. The principle of the estates—”

“Well, now,” Herr Gosch went on, “I have been about all day in the streets, and I have been looking at the mob. There are some fine fellows in it, their eyes flaming with excitement and hatred—” RV 185 (185)


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RV 186 (BUDDENBROOKS) Johann Buddenbrook began to laugh. “You like that, don’t, you? But you have the right end of it after all, let me tell you. It is all childishness! What do these men want? A lot of uneducated rowdies who see a chance for a hit of a scrimmage.”

“Of course. Though I can’t deny—I was in the crowd when Berkemeyer, the journeyman butcher, smashed Herr Benthien’s window. He was like a panther.” Herr Gosch spoke the last word with his teeth particularly close together, and went on: “Oh, the thing has its fine side, that’s certain. It is a change, at least, you know; something that doesn’t happen every day. Storm, stress, violence—the tempest! Oh, the people are ignorant, I know—still, my heart, this heart of mine—it beats with theirs!” They were already before the simple yellow-painted house on the ground floor of which the sittings of the Assembly took place.

The room belonged to the beer-hall and dance-establishment of a widow named Suerkringel; but on certain days it was at the service of the gentlemen burgesses. The entrance was through a narrow whitewashed corridor opening into the restaurant on the right side, where it smelled of beer and cooking, and thence through a handleless, lockless green door so small and narrow that no one could have supposed such a large room lay behind it. The room was empty, cold, and barnlike, with a whitewashed roof in which the beams showed, and whitewashed walls. The three rather high windows had green-painted bars, but no curtains. Opposite them were the benches, rising in rows like an amphitheatre, with a table at the bottom for the chairman, the recording clerk, and the Committee of the Senate. It was covered with a green cloth and had a clock, documents, and writing-materials on it. On the wall opposite the door were several tall hat-racks with hats and coats.

The sound of voices met the Consul and his companion as they entered through the narrow door. They were the last to come. The room was filled with burgesses, hands in their

RV 186 (186)


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RV 187 (BUDDENBROOKS) trousers pockets, on their hips, or in the air, as they stood together in groups and discussed. Of the hundred and thirty members of the body at least a hundred were present. A number of delegates from the country districts had been obliged by circumstances to stop at home.

Near the entrance stood a group composed of two or three small business men, a high-school teacher, the orphan asylum “father,” Herr Mindermann, and Herr Wenzel, the popular barber. Herr Wenzel, a powerful little man with a black moustache, an intelligent face, and red hands, had shaved the Consul that very morning; here, however, he stood on an equality with him. He shaved only in the best circles; he shaved almost exclusively the Möllendorpfs, Langhals, Buddenbrooks, and Överdiecks, and he owed his vote in the Assembly to his omniscience in city affairs, his sociability and ease, and his remarkable power of decision at a division.

“Have you heard the latest, Herr Consul?” he asked with round-eyed eagerness as his patron came up.

“What is there to hear, my dear Wenzel?”

“Nobody knew it this morning. Well, permit me to tell you, Herr Consul, the latest is that the crowd are not going to collect before the Town Hall, or in the market—they are coming here to threaten the burgesses. Editor Rübsam has stirred them up.”

“Is it possible?” said the Consul. He pressed through the various groups to the middle of the room, where he saw his father-in-law with Senators Dr. Langhals and James Möllendorpf. “Is it true, gentlemen?” he asked, shaking hands with them.

But there was no need to answer. The whole assemblage was full of it: the peace-breakers were coming; they could be heard already in the distance.

“Canaille!” said Lebrecht Kröger with cold scorn. He had driven hither in his carriage. On an ordinary day the tall, distinguished figure of the once famous cavalier showed the burden of his eighty years; but to-day he stood quite erect RV 187 (187)


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French CJ

Basten JA accepted that "it was clear from the evidence of the witnesses before this Court that the judge did fall asleep, although there was a further factual issue as to the extent to which that occurred". He carefully reviewed the evidence adduced in the Court of Criminal Appeal. He noted that neither of the appellants called evidence from the legal representatives at the trial. The fact that no objection was taken and the subjective reasons why no other steps were taken would arguably have been irrelevant. That matter was not explored before the Court of Criminal Appeal. His Honour also noted that all the witnesses called on the appeal were friends or relatives of the two appellants. There was a significant degree of consistency between their accounts but none were challenged in cross-examination on the basis of interest clouding perception or recollection. There was no suggestion of collusion. Basten JA observed that while such factors could not be ignored as potentially relevant, in the assessment of the evidence, they should be given limited weight.

His Honour's findings of fact in summary were :

1. The trial judge was asleep on a number of occasions during the 11 days of the trial when evidence was being given.

2. When he was asleep he was not conscious of what was occurring in the courtroom.

3. The trial judge slept for a period of several minutes on at least one occasion on most of the 11 days and on two or possibly three occasions on a handful of days. In support of this inference his Honour noted that the transcript showed that, on most days, there were long periods with no intervention by the judge. The regularity of this behaviour was supported by the fact that the judge was suffering from severe obstructive sleep apnoea, a condition consistent, before the judge obtained treatment, with a continual lack of adequate sleep at night.

4. On a number of occasions, possibly between two and five, the judge was asleep for a period of between 10 and 15 minutes. On a majority of occasions he was asleep for between two and 10 minutes.

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5. There were a number of occasions on which the sleeping was accompanied by heavy breathing. There was an occasion during the cross-examination of Cesan when either a court officer or the judge's associate made a noise to wake the judge up.

6. The judge's snoring when Cesan was giving evidence was to an extent disruptive and caused him to look around at the trial judge on two occasions.

7. The trial judge slept during parts of the evidence of Mas Rivadavia but did not snore in a vigorous and audible manner so as to disrupt Mas Rivadavia's concentration.

8. The jury was distracted at least during Cesan's cross-examination, and probably to a degree on other occasions, by the behaviour of the trial judge.

9. Some members of the jury found the behaviour of the trial judge amusing and some emulated his apparent inattention.

Basten JA referred to s 11 of the District Court Act and s 131 of the Criminal Procedure Act. In the context of their combined requirement for a trial by judge and jury, he considered the essential characteristics of such a trial by reference to authorities dealing with s 80 of the Constitution. His Honour identified two principles in issue. The first was a jurisdictional debate about whether the Court was properly constituted. The second invited attention to the content of the process because the judge, by his behaviour, tended to distract the jury or trivialise the proceedings.

His Honour referred to the role of the trial judge in a jury trial and the principle enunciated by the United States Supreme Court in Capital Traction Company v Hof that trial by jury was a trial of an issue by jurors "under the

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French CJ

It could not be said in this case that there was no substantial miscarriage of justice within the meaning of the proviso to s 6(1). The judge's conduct had a discernible distracting effect on the jury. The reaction of some of the jury members raised a real question about the extent to which they would have attended to the evidence and accorded to the judge's directions the respect and attention they required. The Court of Criminal Appeal was in no position to assess these imponderables. The nature of the miscarriage of justice which occurred put such inquiry beyond its reach. Further, this is a case in which the miscarriage of justice was substantial because it created the appearance of injustice which could not be cured by the Court of Criminal Appeal forming the opinion that a reasonable jury would have convicted the appellants in any event.

For the preceding reasons, I joined in the orders in this case allowing the appeals, setting aside the convictions and remitting the matters for retrial.

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Gummow J

GUMMOW J. In his reasons the Chief Justice explains the constitutional and statutory (federal and State) structure upon which rested the trial on joint indictment of the appellants in the District Court of New South Wales on charges laid under federal law. The provisions of s 11 of the District Court Act 1973 (NSW) and s 131 of the Criminal Procedure Act 1986 (NSW) produced the result that, as a matter of New South Wales law, the trial was to be "by a jury". There is no suggestion that these provisions were not "picked up" by federal law and no suggestion that they conflicted with the requirements of s 80 of the Constitution.

Argument on the appeals to this Court was limited to what was said to be a serious systemic failure in the conduct of the jury trial by reason of a lack in the necessary superintendence of the proceedings by the trial judge. The appellants complained that the Court of Criminal Appeal of the Supreme Court of New South Wales (Grove and Howie JJ, Basten JA dissenting) had erred in dismissing the appeals against conviction. The appellants contended that there had been "a miscarriage of justice" and that this had not attracted the exercise of the power to dismiss an appeal because the appellate court "considers that no substantial miscarriage of justice has actually occurred" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"), again as "picked up" by federal law.

The appeals to this Court may be decided favourably to the appellants by reference to the State legislative structure and the common law of Australia respecting the character of trial by jury, without entering upon the question whether s 80 of the Constitution imposed requirements which both went beyond those of the common law and were not satisfied by the conduct of the trial of the appellants.

The relevant characteristic of the institution of jury trial inherited in Australia and elsewhere from the English common law was explained by Sir Matthew Hale in his work The History of the Common Law, first published posthumously in 1713. The tenth of the excellencies of the jury trial was identified by Hale as follows :

"that the judge is always present, at the time of the evidence given in it. Herein he is able, in matters of law, emerging upon the evidence, to direct

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Gummow J

them; and also, in matters of fact, to give them a great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact; which is a great advantage and light to lay-men. And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact, whereof the jury are the judges."

It was with these observations in mind that, in the 19th century, United States decisions stressed as an essential part of the institution of trial by jury inherited from England, the direction and superintendence of the judge. In delivering the reasons of the Supreme Court of the United States in Capital Traction Company v Hof, Gray J remarked:

"'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."

With these basic principles in mind, it becomes apparent that the unusual circumstances to which the medical condition of the trial judge gave rise called for a response in the Court of Criminal Appeal which applied to the evidence before it concerning the conduct of the trial of the appellants, the statutory criterion of "miscarriage of justice", followed by a consideration of the "proviso" to s 6(1) of the Criminal Appeal Act. No modification of established principle is necessary to determine that the majority of the Court of Criminal Appeal erred in dismissing the appeals.

The superintendence of the trial by the trial judge required him to ensure that the jury was not distracted from paying full attention. The evidence which was accepted by the Court of Criminal Appeal showed both that the jury was

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Gummow J

distracted from paying attention to all of the evidence and that the very source of the distraction was the sleeping judge.

The consequence was that in respect of each appellant there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.

As to the application of the proviso to s 6(1), I agree with what is said by Hayne, Crennan and Kiefel JJ.

For these reasons I supported the making of the orders pronounced at the conclusion of the oral argument on these appeals.

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text: The Invisible World About Us

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Heydon J

HEYDON J. I support the orders which the Court pronounced at the close of oral argument for the reasons given by Gummow J and by Hayne, Crennan and Kiefel JJ.

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Hayne J Crennan J Kiefel J

In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty.

Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty.

Finally, some weight was given by the majority in the Court of Criminal Appeal to a letter written by Mr Cesan to the trial judge after the jury had returned a guilty verdict and before sentence was passed. The majority in the Court of Criminal Appeal considered that, in the letter, he admitted his guilt of the offence charged. The letter was written for the evident purpose of mitigating the sentence that was then to be passed upon Mr Cesan. To do other than accept the jury's verdict would have aggravated the sentence. No weight can be attached to what was said in the letter in deciding whether there was no substantial miscarriage of justice.

For these reasons the proviso was not engaged. It could not be said that no substantial miscarriage of justice actually occurred.

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Hayne J Crennan J Kiefel J

HAYNE, CRENNAN AND KIEFEL JJ. The facts and circumstances giving rise to the appeals are set out in the reasons of French CJ and need not be repeated. At the conclusion of argument, the Court made orders allowing each appeal, setting aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing each appellant's appeal against conviction and sentence, and in their place ordering that the appeal to the Court of Criminal Appeal against conviction should in each case be allowed, the appellant's conviction quashed, and a new trial had. What follows are our reasons for joining in those orders.

The disposition of the appeals to this Court depended, in our opinion, on the application of established principles to the particular facts and circumstances of the case. No development or amplification of those principles is necessary in order to conclude that the Court of Criminal Appeal should have allowed each appellant's appeal, quashed his conviction, and ordered a new trial.

Each appellant's appeal to the Court of Criminal Appeal presented two questions which must be framed by reference to the words of s 6(1) of the Criminal Appeal Act 1912 (NSW). Was there "on any other ground whatsoever … a miscarriage of justice"? If there was, should the Court of Criminal Appeal conclude that "no substantial miscarriage of justice has actually occurred"?

There was, in these cases, "on any other ground whatsoever … a miscarriage of justice" because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given. The occasion for this departure from the proper conduct of the trial was the trial judge falling asleep. (The trial judge was later diagnosed as suffering from severe obstructive sleep apnoea.) But for present purposes, attention should focus upon the consequences of the trial judge falling asleep.

The majority in the Court of Criminal Appeal (Grove and Howie JJ) concluded that no defect in the trial was identified. In particular, the majority

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RV 188 (BUDDENBROOKS) with his eyes half closed, the corners of his mouth contemptuously drawn down, and the points of his white moustaches sticking straight up. Two rows of jewelled buttons sparkled on his black velvet waistcoat.

Not far from this group was Hinrich Hagenström, a square-built, fleshy man with a reddish beard sprinkled with grey, a heavy watch-chain across his blue-checked waistcoat, and his coat open over it. He was standing with his partner Herr Strunck, and did not greet the Consul.

Herr Benthien, the draper, a prosperous looking man, had a large group of gentlemen around him, to whom he was circumstantially describing what had happened to his showw-indow. “A brick, gentlemen, a brick, or at least half a brick—crack! through it went and landed on a roll of green rep. The rascally mob! Oh, the Government will have to take it up! It’s their affair!”

And in every corner of the room unceasingly resounded the voice of Herr Stuht from Bell-Founders’ Street. He had on a black coat over his woollen shirt; and he so deeply sympathized with the narrative of Herr Benthien that he never stopped saying, in outraged accents, “Infamous, un-heard-of!”

Johann Buddenbrook found and greeted his old friend G. F. Köppen, and then Köppen’s rival, Consul Kistenmaker. He moved about in the crowd, pressed Dr. Grabow’s hand, and exchanged a few words with Herr Gieseke the Fire Commissioner, Contractor Voigt, Dr. Langhals, the Chairman, brother of the Senator, and several merchants, lawyers, and teachers.

The sitting was not yet opened, but debate was already lively. Everybody was cursing that pestilential scribbler, Editor Rübsam; everybody knew he had stirred up the crowd—and what for? The business in hand was to decide whether they were to go on with the method of selecting representatives by estates, or whether there was to be universal and equal franchise. The Senate had already proposed the latter. But what did the people want? They wanted these gentlemen by the throats—no more and no less. It was the

RV 188 (188)


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RV 189 (BUDDENBROOKS) worst hole they had ever found themselves in, devil take it! The Senatorial Committee was surrounded, its members’ opinion eagerly sought. They approached Consul Buddenbrook, as one who should know the attitude of Burgomaster Överdieck; for since Senator Doctor Överdieck, Consul Justus Kröger’s brother-in-law, had been made President last year, the Buddenbrooks were related to the Burgomaster; which had distinctly enhanced the regard in which they were held.

All of a sudden the tumult began outside. Revolution had arrived under the windows of the Sitting. The excited exchange of opinions inside ceased simultaneously. Every man, dumb with the shock, folded his hands upon his stomach and looked at his fellows or at the windows, where fists were being shaken in the air and the crowd was giving vent to deafening and frantic yelling. But then, most astonishingly, as though the offenders themselves had suddenly grown aghast at their own behaviour, it became just as still outside as in the hall; and in that deep hush, one word from the neighbourhood of the lowest benches, where Lebrecht Kröger was sitting, was distinctly audible. It rang through the hall, cold, emphatic, and deliberate—the word “Canaille!” And, like an echo, came the word “Infamous,” in a fat, outraged voice from the other corner of the hall. Then the hurried, trembling, whispering utterance of the draper Benthien: “Gentlemen, gentlemen! Listen! I know the house. There is a trap door on to the roof from the attic. I used to shoot cats through it when I was a lad. We can climb on to the next roof and get down safely.”

“Cowardice,” hissed Gosch the broker between his teeth. He leaned against the table with his arms folded and head bent, directing a blood-curdling glance through the window.

“Cowardice, do you say? How cowardice? In God’s name, sir, aren’t they throwing bricks? I’ve had enough of that.” . The noise outside had begun again, but without reaching its former stormy height. It sounded quieter and more continu-

RV 189 (189)


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RV 190 (BUDDENBROOKS) ous, a prolonged, patient, almost comfortable hum, rising and falling; now and then one heard whistles, and sometimes single words like “principle” and “rights of citizens.” The assembly listened respectfully.

After a while the chairman, Herr Dr. Langhals, spoke in a subdued tone: “Gentlemen, I think we could come to some agreement if we opened the meeting.”

But this humble suggestion did not meet with the slightest support from anybody.

“No good in that,” somebody said, with a simple decisiveness that permitted no appeal. It was a peasant sort of man, named Pfahl, from the Ritzerau district, deputy for the village of Little Schretstaken. Nobody remembered ever to have heard his voice raised before in a meeting, but its very simplicity made it weighty at the present crisis. Unafraid and with sure political insight, Herr Pfahl had voiced the feeling of the entire assemblage.

“God keep us,” Herr Benthien said despondently. “If we sit on the benches we can be seen from outside. They’re throwing stones—I’ve had enough of that.”

“And the cursed door is so narrow,” burst out Köppen the wine-merchant, in despair. “If we start to go out, we’ll probably get crushed.”

“Infamous, un-heard-of,” Herr Stuht intoned.

“Gentlemen,” began the Chairman urgently once more. “I have to put before the Burgomaster in the next three days a draft of to-day’s protocol, and the town expects its publication through the press. I should at least like to get a vote on that subject, if the sitting would come to order—”

But with the exception of a few citizens who supported the chairman, nobody seemed ready to come to the consideration of the agenda. A vote would have been useless anyhow—they must not irritate the people. Nobody knew what they wanted, so it was no good to offend them by a vote, in whatever direction. They must wait and control themselves. The clock of St. Mary’s struck half past four. RV 190 (190)


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RV 191 (BUDDENBROOKS) They confirmed themselves and each other in this resolve of patient waiting. They began to get used to the noise that rose and fell outside, to feel quieter; to make themselves more comfortable, to sit down on the lower benches and chairs. The natural instinct toward industry, common to all these good burghers, began to assert itself: they ventured to bargain a little, to pick up a little business here and there. The brokers sat down by the wholesale dealers. These beleaguered gentlemen talked together like people shut in by a sudden storm, who speak of other things, and now and then pause to listen with respectful faces to the thunder. It was five o’clock—half-past five. It was getting dark. Now and then somebody sighed and said that the wife would be waiting with the coffee—and then Herr Benthien would venture to mention the trap-door. But most of them were like Herr Stuht, who said fatalistically, shaking his head, “I’m too fat.”

Mindful of his wife’s request Johann Buddenbrook had kept an eye on his father-in-law. He said to him: “This little adventure isn’t disturbing you, is it, Father?”

Lebrecht Kröger’s forehead showed two swollen blue veins under his white wig. He looked ill. One aristocratic old hand played with the opalescent buttons on his waistcoat; the other, with its great diamond ring, trembled on his knee.

“Fiddlesticks, Buddenbrook,” he said; but his voice showed extreme fatigue. “I am sick of it, that’s all.” Then he betrayed himself by suddenly hissing out: “Parbleu, Jean, this infamous rabble ought to be taught some respect with a little powder and shot. Canaille! Scum!”

The Consul hummed assent. “Yes, yes, you are right; it is a pretty undignified affair. But what can we do? We must keep our tempers. It’s getting late. They’ll go away after a bit.”

“Where is my carriage? I desire my carriage,” said the old man in a tone of command, suddenly quite beside himself. His anger exploded; he trembled all over. “I ordered it for five o’clock: where is it? This sitting will never be held.

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RV 192 (BUDDENBROOKS) Why should I stop any longer? I don’t care about being made a fool of. My carriage! What are they doing to my coachman? Go see after it, Buddenbrook.”

“My dear Father-in-Law, for heaven’s sake be calm. You are getting excited. It will be bad for you. Of course I will go and see after the carriage. I think myself we have had enough of this. I will speak to the people and tell them to go home.”

Close by the little green door he was accosted by Siegismund Gosch, who grasped his arm with a bony hand and asked in a gruesome whisper: “Whither away, Herr Consul?”

The broker’s face was furrowed with a thousand lines. His pointed chin rose almost up to his nose, his face expressed the most desperate resolution; his grey hair streamed distractedly over brow and temples; his head was so drawn in between his shoulders that he really almost achieved his ambition of looking like a dwarf—and he rapped out: “You behold me resolved to speak to the people.”

The Consul said: “No, let me do it, Gosch. I really know more of them than you do.”

“Be it so,” answered the broker tonelessly. “You are a bigger man than I.” And, lifting his voice, he went on: “But I will accompany you, I will stand at your side, Consul Buddenbrook. Let the wrath of the outraged people tear me in pieces—”

“What a day, what a night!” he said as they went out. There is no doubt he had never felt so happy before in his life. “Ha, Herr Consul! Here are the people.”

They had gone down the corridor and outside the outer door, where they stood at the top of three little steps that went down to the pavement. The street was indeed a strange sight. It was as still as the grave. At the open and lighted windows of the houses round, stood the curious, looking down upon the black mass of the insurgents before the Burgesses’ House. The crowd was not much bigger than that inside the

RV 192 (192)


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RV 193 (BUDDENBROOKS) hall. It consisted of young labourers from the harbour and granaries, servants, school pupils, sailors from the merchant ships, and other people from the little streets, alleys, courts, and rabbit-hutches round about. There were even two or three women—who had probably promised themselves the same millennium as the Buddenbrooks’ cook. A few of the insurrectionists, weary of standing, had sat down with their feet in the gutter and were eating sandwiches.

It was nearly six o’clock. Though twilight was well advanced, the oil lamps hung unlighted above the street. This fact, this open and unheard—of interruption of the regular order, was the first thing that really made Consul Buddenbrook’s temper rise, and was responsible for his beginning to speak in a rather short and angry tone and the broadest of pronunciations:

“Now then, all of you, what is the meaning of this foolish¬ ness?”

The picnickers sprang up from the sidewalk. Those in the back ranks, beyond the foot-pavement, stood on their tiptoes. Some navvies, in the service of the Consul, took off their caps. They stood at attention, nudged each other, and muttered in low tones, “ ’Tis Consul Buddenbrook. He be goin’ to talk. Hold yer jaw, there, Chrishan; he can jaw like the devil himself! Ther’s Broker Gosch—look! What a monkey he Isn’t he gettin’ o’erwrought!”

“Carl Smolt!” began the Consul again, picking out and fastening his small, deep-set eyes upon a bow-legged young labourer of about two-and-twenty, with his cap in his hand and his mouth full of bread, standing in front of the steps. “Here, speak up, Carl Smolt! Now’s the time! I’ve been here the whole afternoon—”

“Yes, Herr Consul,” brought out Carl Smolt, chewing violently. “The thing is—ower—it’s a soart o’—we’re makkin’ a rivolution.”

“What kind of nonsense is that, then?”

193 RV 193 (193)


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PiccoloOrchestral useCharacteristicsBerlioz on its abuseIts various registersAs used by great composersTwo piccolosWith cymbals, bells, etc.As a solo instrumentMilitary varietiesThe F flute.

Flauto Piccolo, the highest pitched instrument of the orchestra, is a development of the earlier conical Schweitzerpfeiff, and to this day the conical bore is preferred to the cylinder bore, although some piccolos are made with the latter. The piccolo is in a sense a transposing instrument, as it sounds an octave above the written note. This is done in order to avoid numerous ledger lines. The compass of the instrument is said to extend to the C in altissimo,but it is rarely used above the A (the top note of the pianoforte), though an occasional B may be met with in orchestral writings. I have never come across this top C in any piccolo part. As the instrument does not possess a tail-joint like the flute, its lowest note is D♮.


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Page:The True History of a Little Ragamuffin 1866.pdf/1

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Portal:Harcourt

Published

 * Weeds (1923) by Edith Summers Kelley

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THE TRUE HISTORY

OF A

LITTLE RAGAMUFFIN. CHAPTER I. IN WHICH ARE NARRATED A FEW PARTICULARS OF MY BIRTHPLACE AND PARENTAGE.

I was born at Number Nineteen, Fryingpan Alley, Turnmill Street, in the Parish of Clerkenwell.

In is scarcely probable that the reader is acquainted with the locality in question, and even less probable, if he undertook a journey of exploration in search of it, that any great amount of success would attend his labours. This especially, if he addressed himself to the individual best qualified to give him the required information. This would be the Clerkenwell costermonger. He may have resided within ear-shot of Clerkenwell Church bells all his life; nay, he may be a lodger in Turk's Head Alley, which is not more than twenty paces from my alley, and still he will shake his head ignorantly in reply to your question. Fryingpan Alley, Turnmill Street! He never heard tell of it. He knows all the courts and alleys thereabout. There's Rose Alley, and Lamb and Flag Court, and Crozier's Alley, and Fringpun Alley. The lastmentioned comes closest to what you are inquiring after; but that can't be the one, because it is in Tummel Street. Even though he had a suspicion that your "Fryingpan" and his "Fringpun," and his "Tummel" and your "Turnmill" were identical, it is very doubtful if you would gain advantage, your use of the full and proper terms being regarded by him as priggish affectation; and against all such it is the costermonger's creed to set his countenance.

Nevertheless, Fryingpan Alley is a fact; a disgraceful one, probably, but ome that is undeniable. Passing Clerkenwell Sessions House from Coppiee Row, it is the second alley on the left-hand side of the way; and coming at it down Turnraill Street from the Smithfield end, it is on the right, past the coppersmith's and the great distillery, and next to Turk's Head Alley. Except that the stone step at the mouth of the alley is worn quite through to the bricks beneath, and the name-board above has been renewed, its outward appearance is exactly the same as when, nearly twenty years ago, I used to live there: the same diagy, low-arched entry - so low that the scabenger, with his basket on his shoulder, is obliged to alacken at his knees to enable him to pass under it, and so narrow that a shopshutter-s, coffin-lid, almost-would serve as a gate for it.

As a boy, I was not particularly jovial or lighthearted, and the subject of coffins and funerals used to occupy a considerable share of my attention. There were always plenty of funerals going on in our alley, especially in the summer time; indeed, if it were not so, it would be no great wonder that Fryingpan Alley and coffins should be intimately associated in my mind, since it was a funeral of a very woeful sort that roused me from babyhood to boyhood, as it were, and set me seriously reflecting on the world and its ways. However, it will be time enough to give the particulars of that melancholy business when I have fulfilled the promise made at the beginning of this chapter.

The breath of coffins and the narrowness of our alley used to occupy my thoughts a great deal, and there were very few of our neighbours whose height and breadth I had not considered, and settled within my mind how hard or how easy it would be to carry his body out.

Two persons in particular caused be tremendous anxiety on this account - the one being the landlord of the "Dog and Stile," out in Turnmill Street; and the other an elderly lady, who lived near the mouth of the alley. The publican, although he did not reside in the alley, was, nevertheless, there a great deal, chiefly in consequence of the many difficulties that stood in the way of his recovery of the pots and cans he lent to his customers; and if Mr. Piggot sometimes lost his temper while in pursuit of his property, it was really not to be wondered at. It was not at all an uncommon thing for him to discover the bright pewter borrowed of him overnight resting on the hob of a fire-place, half filled with the dregs of the coffee that had been boiled in it at breakfast, and so burnt and blackened as to require a vigorous application of Mr. Piggot's broad, fat thumb, wetted and roughened with cinder-ash, before he could convince himself that the vessel bore his name and sign. He had been known to enter a room (he had a way of never knocking at a door) to take an Irish stew or a dinner of cabbage and bacon off the fire, and, tilting it all into the fender, walk off triumphantly with the gallon can it was cooking in. He used to work himself into the most dreadful passions on these and similar occasions, and to stamp and swear till his eyes rolled and the pimples on


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Linford Pratt, senior clerk to Eldrick & Pascoe, solicitors, of Barford, a young man who earnestly desired to get on in life, by hook or by crook, with no objection whatever to crookedness, so long as it could be performed in safety and secrecy, had once during one of his periodical visits to the town Reference Library, lighted on a maxim of that other unscrupulous person, Prince Talleyrand, which had pleased him greatly. "With time and patience," said Talleyrand, "the mulberry leaf is turned into satin." This seemed to Linford Pratt one of the finest and soundest pieces of wisdom which he had ever known put into words.

A mulberry leaf is a very insignificant thing, but a piece of satin is a highly marketable commodity, with money in it. Henceforth, he regarded himself as a mulberry leaf which his own wit and skill must transform into satin: at the same time he knew that there is another thing, in addition to time and patience, which is valuable to young men of his peculiar qualities, a thing also much beloved by Talleyrand—opportunity. He could find the patience, and he had the time—but it would give him great happiness if opportunity came along to help in the work. In everyday language, Linford Pratt wanted a chance—he waited the arrival of


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 her honour should be held by me as sacred as a sister's. I told her, that my first care should be to find you out, Lorenzo, and reconcile you to our union; and I was continuing to speak in the same strain, when a noise without alarmed me. Suddenly the door of the pavilion was thrown open, and Cunegonda stood before us. She had heard Agnes steal out of her chamber, followed her into the garden, and perceived her entering the pavilion. Favoured by the trees which shaded it, and unperceived by Theodore, who waited at a little distance, she had approached in silence, and overheard our whole conversation.

"Admirable!" cried Cunegonda, in a voice shrill with passion, while Agnes uttered a loud shriek. "By St. Barbara, young lady, you have an excellent invention! You must personate the bleeding nun, truly? What impiety! What incredulity! Marry, I have a good mind to let you pursue your plan. When the real ghost met you, I warrant you would be in a


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Clarification on Release of Finder Goods Seized in China Square

2nd March 2023, Nairobi, Kenya.

We would like to clarify that the Anti-Counterfeit Authority (ACA) has released the goods that were seized at the China Square worth 50 million shillings. The goods were seized on 16th February 2023 following a complaint received from Smithmo Company Ltd, which suspected the sale of counterfeit Finder Tools within the premises.

However, we would like to inform the public that the complainant, in a letter dated 27th February, wrote to ACA and requested to withdraw the complaint against China Square. This request was made upon confirmation that the goods seized were sourced from the same manufacturer and international brand owner of Finder Merchandise. The complainant also requested for the release of the goods.

In light of this new information, ACA conducted a thorough investigation and verified the source of the goods, and we can confirm that they are authentic Finder Tools. As such, we have released the goods to the rightful owner.

We would like to urge members of the public to be vigilant when purchasing goods to avoid falling victim to counterfeit products. We also encourage them to report any suspected cases of counterfeit products to ACA to help protect their rights andinterests.

We thank the public for their cooperation in this matter, and we will continue towork tirelessly to protect consumers from counterfeit goods.


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 pretty condition! Don Alphonso, you ought to be ashamed of yourself for seducing a young, ignorant creature to leave her family and friends. However, for this time, at least, I shall mar your wicked designs. The noble lady shall be informed of the whole affair, and Agnes must defer playing the spectre till a better opportunity. Farewell, Segnor.—Donna Agnes, let me have the honour of conducting your ghost-ship back to your apartment."

She approached the sopha on which her trembling pupil was seated, took her by the hand, and prepared to lead her from the pavilion.

I detained her, and strove by entreaties, soothing, promises, and flattery to win her to my party; but, finding all that I could say of no avail, I abandoned the vain attempt.

"Your obstinacy must be its own punishment," said I; "but one resource remains to save Agnes and myself, and I shall not hesitate to employ it."


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 Terrified at this menace, she again endeavoured to quit the pavilion; but I seized her by the wrist, and detained her forcibly. At the same moment Theodore, who had followed her into the room, closed the door, and prevented her escape. I took the veil of Agnes; I threw it round the duenna's head, who uttered such piercing shrieks that, in spite of our distance from the castle, I dreaded their being heard. At length I succeeded in gagging her so completely, that she could not produce a single sound. Theodore and myself, with some difficulty, next contrived to bind her hands and feet with our handkerchiefs; and I advised Agnes to regain her chamber with all diligence. I promised that no harm should happen to Cunegonda; bade her remember that, on the fifth of May, I should be in waiting at the great gate of the castle, and took of her an affectionate farewell. Trembling and uneasy, she had scarce power enough to signify her consent to my plans,


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 and fled back to her apartment in disorder and confusion.

In the mean while Theodore assisted me in carrying off my antiquated prize. She was hoisted over the wall, placed before me upon my horse, like a portmanteau, and I galloped away with her from the castle of Lindenberg. The unlucky duenna never had made a more disagreeable journey in her life. She was jolted and shaken till she was become little more than an animated mummy; not to mention her fright, when we waded through a small river, through which it was necessary to pass in order to regain the village. Before we reached the inn, I had already determined how to dispose of the troublesome Cunegonda. We entered the street in which the inn stood; and while the page knocked, I waited at a little distance. The landlord opened the door with a lamp in his hand.

"Give me the light," said Theodore, "my master is coming."


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 He snatched the lamp hastily, and purposely let it fall upon the ground. The landlord returned to the kitchen to re-light the lamp, leaving the door open. I profited by the obscurity, sprang from my horse with Cunegonda in my arms, darted up stairs, reached my chamber unperceived, and, unlocking the door of a spacious closet, stowed her within it, and then turned the key. The landlord and Theodore soon after appeared with lights: the former expressed himself surprised at my returning so late, but asked no impertinent questions. He soon quitted the room, and left me to exult in the success of my undertaking.

I immediately paid a visit to my prisoner. I strove to persuade her submitting with patience to her temporary confinement. My attempt was unsuccessful. Unable to speak or move, she expressed her fury by her looks; and, except at meals, I never dared to unbind her, or release her from the gag. At such times I stood over her with a drawn sword, and protested that, if she uttered a


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 single cry, I would plunge it in her bosom. As soon as she had done eating, the gag was replaced. I was conscious that this proceeding was cruel, and could only be justified by the urgency of circumstances. As to Theodore, he had no scruples upon the subject. Cunegonda's captivity entertained him beyond measure. During his abode in the castle, a continual warfare had been carried on between him and the duenna; and, now that he found his enemy so absolutely in his power, he triumphed without mercy: he seemed to think of nothing but how to find out new means of plaguing her. Sometimes he affected to pity her misfortune, then laughed at, abused, and mimicked her: he played her a thousand tricks, each more provoking than the other; and amused himself by telling her, that her elopement must have occasioned much surprise at the baron's. This was in fact the case. No one, except Agnes, could imagine what was become of dame Cunegonda. Every hole and corner was searched for her:


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 the ponds were dragged, and the woods underwent a thorough examination. Still no dame Cunegonda made her appearance. Agnes kept the secret, and I kept the duenna: the baroness, therefore, remained in total ignorance respecting the old woman's fate, but suspected her to have perished by suicide. Thus passed away five days, during which I had prepared every thing necessary for my enterprise. On quitting Agnes, I had made it my first business to dispatch a peasant with a letter to Lucas, at Munich, ordering him to take care that a coach and four should arrive about ten o'clock on the fifth of May at the village of Rosenwald. He obeyed my instructions punctually; the equipage arrived at the time appointed. As the period of her lady's elopement drew nearer, Cunegonda's rage increased. I verily believe, that spite and passion would have killed her, had I not luckily discovered her prepossession in favour of cherry-brandy. With this favouri efavourite [sic] liquor she was plentifully supplied, and, Theodore always re-


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 maining to guard her, the gag was occasionally removed. The liquor seemed to have a wonderful effect in softening the acrimony of her nature; and her confinement not admitting of any other amusement, she got drunk regularly once a-day, just by way of passing the time.

The fifth of May arrived, a period by me never to be forgotten! Before the clock struck twelve, I betook myself to the scene of action. Theodore followed me on horseback. I concealed the carriage in a spacious cavern of the hill on whose brow the castle was situated. This cavern was of considerable depth, and, among the peasants, was known by the name of Lindenberg Hole. The night was calm and beautiful: the moon-beams fell upon the antient towers of the castle, and shed upon their summits a silver light. All was still around me: nothing was to be heard except the night-breeze sighing among the leaves, the distant barking of village dogs, or the owl who had established herself in a nook of the deserted eastern turret. I


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United States v. Generes/Separate White

MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins.

While I join Parts I, II, and III of the Court's opinion and its judgment of reversal, I would remand the case to the District Court with directions to hold a hearing on the issue of whether a jury question still exists as to whether taxpayer's motivation was "dominantly" a business one in the relevant transactions under 26 U.S.C. §§ 166 (a) and (d). Federal Rule of Civil Procedure 50 (d) provides that when an appellate court considers a motion for judgment n.o.v., it may "determin[e] that the appellee is entitled to a new trial, or... [direct] the trial court to determine whether a new trial shall be granted." Because of the drastic nature of a judgment n.o.v., this Court has emphasized that such motions should be granted only when the procedural prerequisites of the Federal Rules have been strictly complied with. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 215-217 (1947). In the present case, this Court has the power to reverse the judgment without the grant of a new trial since the Government properly moved for a judgment n.o.v. (or in the alternative, for a new trial) in the District Court. Neely v. Eby Construction Co., 386 U.S. 317 (1967). The circumstances here are inappropriate for such a decision, however, since taxpayer has never had an opportunity to be heard, after it is determined that his verdict cannot stand, as to whether factual issues remain on which he is entitled to a new trial. A decision [p113] that a verdict must be overturned because the trial judge applied an erroneous evidentiary standard is unlike certain other appellate rulings that an error of law was made because it inevitably presents an accompanying factual question: is there enough evidence to present a jury question under the proper evidentiary standard? Neely v. Eby Construction Co., supra, at 327. This Court has often repeated that a trial court is the most appropriate tribunal to determine such factual questions, Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481-482 (1933); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253 (1940), since appellate courts are awkwardly equipped to resolve such issues, particularly in the absence of adversary argument, and since the trial judge has an extensive and intimate knowledge of the evidence and issues "in a perspective peculiarly available to him alone." Cone v. West Virginia Pulp & Paper Co., supra, at 216. I would therefore allow the trial court to decide whether a new trial is merited in this case.

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 Though usually played along with the flute in orchestral works, the piccolo is often used alone very effectively. Two piccolos are occasionally used, either in addition to the flutes or without them. Spohr has a passage in his overture Jessonda for two piccolos in F without flutes. Berlioz, in his Faust ("Evocation"), uses three piccolos (without flutes), playing separate parts. This is the only instance I know of three being used. I don't think any composer has introduced four separate parts for

, Faust, "Evocation."

piccolos in any orchestral work. Spontini (Nourmahal) was apparently the first to discover the combination of the piccolo with the cymbals. "It cuts and rends instantaneously like the stab of a poignard," says Berlioz. Modern composers have frequently used it along with the cymbals, bells, triangle, or glockenspiel; Saint-Saens produces a ghastly effect in his Danse Macabre by combining it with the xylophone.

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was counted to be as good a neighbor, as bountiful a provider and as kind a husband and father as was to be found in the whole of Scott County, Kentucky, according to local standards of goodness, kindness and bountifulness. He had never been known to refuse a neighbor the loan of anything that he owned, from his pocket knife to his team of mules. He was prompt with neighborly assistance whenever there was any big job to be done, such as a smokehouse to move or a hog to butcher. If he saw his neighbor's ox or his ass fallen down by the way, he heeded the Bible injunction, of which he had never heard, not to hide himself from them, but surely to help his brother to lift them up again. And if he saw his brother's ox or his sheep go astray, he brought them again unto his brother; for he was one of the few strictly honest farmers in Scott County. Unlike most of his neighbors, too, he was a man of peace. He never sought a quarrel and always avoided one if possible. He had never in his life pulled a gun on a man, an unusual record for a native of rural Kentucky, brought up from boyhood in the time-honored tradition that the pulling of guns is a manly sport.

His wife had little cause for complaint against him, for he hardly ever got drunk oftener than once a month at the Georgetown Court Day. He saw to it that there was always, or at least nearly always, at least one fat hog in the pen waiting to be butchered at Thanksgiving or Christmas. He aimed every spring to raise enough corn so that there would be plenty to

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 feed the hens, to fatten his hog or hogs and to furnish material for the daily cornmeal cakes until next season's crop came on. If Bill did not always succeed in this laudable endeavor, the blame was not laid at his door by his neighbors and certainly not by himself. If there came a dry spell that withered up the corn just as it was filling out in the ear, it wasn't Bill's fault. And if a rainy season set in and kept the ground so wet that he couldn't get into the patch with a cultivator, it was none of his doing if the weeds grew so fast that they soon overtopped the corn. Bill was not the inventor of weeds nor of their nefarious habit of growing faster than corn. Under such circumstances reflections like this gave him much peace of mind and spiritual comfort. There was considerable satisfaction in being able to shift the blame onto the Almighty; and there was still further repose of spirit in the thought that no effort of his own weak, human frame could undo the damage done by the will of that all-powerful being. If the corn crop was light, it was light, and that was all there was to it; and there would be that much less corn to shuck out and that much less fodder to haul in.

There were of course other matters pertaining to the farm over which Bill could exercise more control than he did over the rain supply. On these latter his mind could not repose with the same peaceful abandon; hence he did not concentrate upon them. The fences that needed mending, the manure that ought to be hauled out, the brush that should be cut out of his pasture to give the grass a chance to grow: these things preyed more or less upon Bill's mind, but he did not allow them to annoy him too constantly. After all, he told himself, there was just so much that one man could do on a place. A man couldn't be hauling out manure and cutting brush and mending fence all at the same time; and there was no use in worrying because everything was not kept up to the top notch. Besides, a fellow had to have a little rest now and then and a chance to visit with his neighbors, or what use to be alive at all?

Bill dearly loved to rest and visit. They were his favorite

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 pastimes and indeed about the only ones that the circumstances of his life offered to him. To sit on a rail fence or a hitching post with a chew of tobacco in his cheek, a bit of wood in his left hand and a jack-knife in his right, and pass the time of day with all and sundry who happened by, was as much as Bill asked of life. Whether the place was his own barnyard or Jim Townsend's blacksmith shop or Peter Akers' general merchandise store in Clayton made no particular difference to Bill so long as he could sit and chew and whittle and talk. He was built long and rickety, nondescript of feature, but with a bright twinkle of humor and kindliness in his gray eyes; and his tall, narrow-chested figure was a frequent sight about the lounging places of Clayton.

The main trouble with Bill was that along with nine-tenths of the rest of humanity, he had missed his calling. He was by nature a villager, not a farmer, and the great regret of his life was that he had not been a blacksmith. He had mastered the trade through sheer love of it and had become the best of non-professional blacksmiths. He shod his own horses and the horses of all his neighbors, asking them nothing in return but the pleasure of their company while he worked. To have a little shop of his own in the village whither the farmers would come from six or seven miles around, bringing their horses and all the news and gossip of the neighborhood, that had always been Bill's unrealized dream. Chance, however, that wayward arbiter of the fates of all of us, by making Bill the son of a farmer and the husband of a woman who had inherited a farm, had spoiled a good blacksmith to make a poor farmer. It did not occur to him to repine or cry out against his lot or consider himself in any way a blighted being on this account. He merely cast a momentarily envious eye upon Jim Townsend, the blacksmith, whenever he happened to see him, and went on farming—after a fashion. He was a gentle, kindly and sociable soul, and the good will of his neighbors meant more to him than anything else on earth except his family.

His family consisted of his wife and five children. Aunt

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 Annie Pippinger, a small, inconsequential woman in the early forties, was all one color, like an old faded daguerreotype. She may have had some claims to prettiness in the days when Bill courted her; but they had long since gone, leaving her a bit of drab insignificance. Crawford, the eldest boy, was surprisingly handsome and quite as surprisingly indolent of mind and body. The twins, Luella and Lizzie May, were thin, sickly-looking little girls. Lizzie May was pretty in a pale, blond, small-featured way. Luella had a long, pale face, drab hair and dull gray eyes; and her mouth hung open as though she had adenoids. Judith was the third girl, born two years after the twins. After her there was an interval of four years marked for Aunt Annie Pippinger by two miscarriages and a stillborn infant. At the end of this interval a child was born who grew into a chubby, round-eyed, stupid-looking little boy named Elmer.

These children played and quarreled and made discordant, schoolyard noises in the dooryard of a little, three-room shanty standing upon forty-seven acres of heavy clay land which Aunt Annie Pippinger had inherited from her father. The front yard had been plowed up at some time or other but never planted to anything; and the result was a plentiful crop of ragweed, yarrow and pink-blooming soapwort. Two or three rose bushes clung to the broken picket fence and made it gay in June; and by the front door there was a large bush that bore beautiful creamy roses, tinged in the bud ever so slightly with delicate pink. By the back porch a lilac bush as tall as a small tree made April fragrant for the Pippingers.

The back dooryard was beaten bare and hard by the playing feet of children and the dumping of endless tubs of soapsuds and pans of dishwater. A discarded cookstove lying on its side against the back wall of the kitchen, formed the nucleus for a pile of rust-eaten pots and pans. Beyond the bare spot, a fringe of mustard, ragweed, and burdock reached to the picket fence. Along this fence a dozen or so stalks of hollyhock bloomed in summer gorgeously pink and scarlet against a blue sky. The smoke house and the back house occupied

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 opposite corners of this yard, a well worn path through the weeds leading the way to each.

A stone's throw beyond the picket fence stood the barn, a structure that had been in need of repairs these many years, and part of the roof and sides of an old wagon shed. Here, too, was the horsepond, overhung by a big weeping willow, and a small corral that Bill had built for the milking of the cows. Beyond rose a grassy slope dotted with locust trees. A few straggly apple and peach trees, mostly sprung from seed, grew here and there in odd corners.

The Pippinger farm, like all the rest of the land immediately about it, consisted of hills sloping more or less gently into each other, so that there was no level ground to be found anywhere. This was characteristic of the whole of Scott County. Everywhere there were hills: steep hills and gentle hills, high hills and low hills, plowed hills, and grassy hills and weed-covered hills, but always hills. These hills sometimes ran in long ridges across the land with hollows on each side and other hills sloping up from the hollows. The only level land was the narrow strips at the bottoms of these hollows made by the washing down of soil from the hills.

A great deal of otherwise good land was spoiled in this way. If the hills were kept in bluegrass or sweet clover, they "stayed put." But when they were plowed for corn or tobacco and afterward left to grow up in weeds, the heavy rains cut deep gullies in their sides and washed the good soil to the bottom. This was the case with most of the Pippinger acres. There was only a small amount of land left that was smooth enough to be plowed for corn. Ever since the family had moved onto the place, which was when Crawford was a baby, Bill had talked about how he was going to "stop up them gullies an' put in sweet clover." But each year the gullies wore deeper and each year Bill talked less about reclaiming them. There was still enough pasture, however, for two cows, Roanie and Reddie and a team of gray mules that answered, though sometimes reluctantly, to the names of Tom and Bob. Scratching and cackling hens made the barnyard lively; there were geese

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 on the horsepond; and a few turkeys ranged in the surrounding fields and grew fat on the corn and alfalfa for miles around.

This was the center of the universe for the Pippinger children. Here they played the games that they had learned in the schoolyard: "Blind Man's Buff," "Tag," "Tom, Tom, pull away," and "Little Sally Waters." They made playhouses in fence corners where they treasured up bits of colored glass and stones glittering with mica. They hunted for the eggs of hens that had stolen their nests. They stalked the turkeys to find out where they were laying the precious turkey eggs. They stood around their mother as she churned and with greedy little fingers scraped off the spattered blobs of butter as they appeared on the dasher stick and the churn top. When house-cleaning time was come and their mother had the front room carpet out on the line, they crept in between its dusty folds and crawled gleefully up and down making the mild April evening vibrant with their shouts and laughter. They gathered wild raspberries and blackberries in summer and in autumn hickory nuts and black walnuts. They brought up the cows for the milking and exemplified the phrase, "Straight from producer to consumer," by milking into their own mouths. They made dandelion chains in spring and burr baskets in autumn and scattered the silky fluff of ripe milkweed pods into the sunny autumn air. They held buttercups under each other's chins to see if they liked butter. They quarreled over the possession of playthings and other subjects of childish dispute. Sometimes they fought savagely and kicked each other's shins and made vigorous attempts to scratch and bite, then ran crying and complaining to their mother.

A radius of some eight or ten miles about the farm formed their entire world. Within this circle was Clayton, the source of groceries, candy and Christmas toys, as were also the homes of the various grandparents, aunts, uncles, and cousins with whom they visited. Almost every Sunday, and sometimes on a week day, Bill would hitch up Tom and Bob to the spring wagon as soon as the morning chores were done, and the whole family, dressed in clean denim and starched calico, would jog

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 away over the winding dirt road to the home of one or other of their kin for an all-day visit. The parent Pippingers sat on the seat in front, which was padded with a couple of old patchwork quilts; and the children made themselves comfortable seats in the thick straw of the wagon body.

So they would drive out into the sunshine, up hill and down hill, across rickety wooden bridges, around gentle bends and sharp turns, past corn patches and tobacco fields and long stretches of land grown up in weeds and brush; through little groves of second growth maple and hickory, past old log houses and weathered frame shanties and big tobacco barns and occasional large, more or less pretentious dwellings surrounded by lawns, till they came to grandad's or Aunt Abigail's or Cousin Rubena's, and there halted for the day.

It was not considered necessary to warn relatives that on such and such a day they were to receive seven all-day visitors. Such an idea had never occurred to Bill or his wife or any of their connections. The Pippingers themselves received many such guests, and were quite as glad to be visited as to visit. There was no sin greater than the sin of being stingy with your time, your food, or your work. To intimate by word, deed, or look that visitors were not welcome was unthinkable in the social circle in which Bill's family and their kin moved.

When the visiting Pippingers reached their destination, whether it was grandad's or Aunt Abigail's or Cousin Rubena's, the procedure was always the same. Everybody, men, women, and children, came out to the wagon to welcome the visitors. There would follow a few moments of general kissing, handshaking, comments on the weather, and mutual inquiries concerning health. Then the men unhitched, put up the mules, and retired to the barnyard to chew, whittle, and exchange silence-punctuated views on the three main topics of common interest, the weather, the crops, and the neighbors. The children straggled after them or ran to the wagon shed to see the new litter of puppies or started a game of "Hide and Seek" in the dooryard. Aunt Annie Pippinger went with the womenfolk back into the house, where, having laid aside her sun

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 bonnet and jacket, she immediately started to scrape potatoes, cut string beans, peel apples, or otherwise help with the preparations for dinner.

The whole day was spent in this way. The men loafed in the barnyard; the children played or hung in semi-boredom about their elders; the women cooked and washed dishes in the house. And when these tasks were done and the kitchen floor swept, they sat down stiffly on straight-backed chairs, smoothed their aprons and talked about the price of calico, the raising of chickens, the recent sudden death of Uncle James Cruikshanks, the stroke that Aunt Jenny Boone had had last week, and other such topics.

The only break in what would seem to an outsider an interminable stretch of tedium was the dinner. This usually consisted of salt hog meat, fried or boiled, potatoes and some other vegetable, followed by a heavy-crusted apple pie or a soggy boiled pudding. If it were summer or autumn there would likely be a big platter of "roastin' ears," sliced ripe tomatoes, or sliced cucumbers and onions in vinegar. Everybody ate plentifully and silently, and as soon as the meal was over the men slouched back to the barnyard.

When the sun began to slant low in the western sky, Bill would at last bring the wagon around. Aunt Annie Pippinger would put on her sunbonnet and jacket, and the children, seeing the mules hitched up, would straggle up one by one from their play. There would be a long family gathering about the wagon before the visitors drove off; for nothing having to do with social intercourse is ever done in a hurry in rural Kentucky. They had had all day to talk to each other, and they had repeated the same things many, many times over. It was getting late, too, and there was a long drive ahead of them and all the chores were waiting to be done. But still there could be no hurried leave-taking; there was no precedent for such a thing. So they all stood about the wagon and exchanged some more prophecies about the weather and some more comments on Aunt Jenny Boone's stroke and Uncle James Cruikshank's sudden death. And then there would be a long

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