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 and that the district court therefore erred when it submitted the question to the jury. Had Urantia Foundation preserved this argument for appeal, and were the classification question actually settled in its favor, Urantia Foundation would be entitled to a de novo review on the question of whether The Urantia Book is a commissioned or a composite work, rather than the more deferential standard appropriate to review of a district court’s denial of a renewed motion for judgment as a matter of law. Urantia Foundation has, however, waived any such argument, and we therefore need not reach the unsettled question of whether initial classification of works is, in all cases, a question of law for the court.

In the district court, Urantia Foundation’s attorneys drafted proposed jury instructions and participated in a conference at which the parties agreed with the court upon—or preserved objections to—the jury instructions. They were present when the district court read the instructions to the jury. At none of these points did Urantia Foundation object to the submission of the classification question to the jury. The portion of the transcript of the instructions conference relevant to “Instruction Number 23, Work for Hire/Commissioned Work” suggests just the opposite; Urantia Foundation’s counsel clearly contemplated submission of the question to the jury. The same is true of portion of the transcript relevant to “Instruction Number 26, Composite Definition.”

Urantia Foundation’s oral Rule 50(a) motion at the close of evidence for judgment as a matter of law did not mention the issue. We find Urantia Foundation’s only allusion to this argument below in its brief in support of its Rule 50(b) renewed motion: a single, undeveloped sentence in the brief reads, “Whether The Urantia Book is a commissioned work is a question of law subject to de novo review.” This sentence serves—confusingly—as the topic sentence of a paragraph attacking the sufficiency of the evidence submitted to the jury, not the propriety of submitting the question to the jury in the first place. Neither Michael Foundation nor the district court appear to have responded to this sentence, or, indeed, to have in any way discerned the question-of-law argument.

We have consistently held that a movant’s renewed motion under Rule 50(b) may not advance new legal arguments; i.e., the renewed motion’s scope is restricted to issues developed in the initial motion. Our decision in Vanderhurst v. Colorado Mountain College District, 208 F.3d 908 (10th Cir.2000), is instructive. In that case, following a jury trial at which the movant did not object to the submission of an issue to the jury, the movant sought on appeal to argue that the issue was properly one of law for the court alone. We declined to consider the argument, and stated that: This court generally will not entertain arguments on appeal which the appellant failed to raise before the district court. More specifically, “[a Rule 50] motion for judgment as a matter of law made at the close of all the evidence preserves for review only those grounds specified at the time, and no others.” Finally, Rule 51 of the Federal Rules of Civil Procedure states, “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the


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Ima kon to Iishi bakari ni Naga-tsuki no Ariake no tsuki Wo machi izuru kana.

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

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A HASTY MARRIAGE. 41 toasted as “the bride.” I slept brokenly, and woke with a racking headache, feverish and faint, and absolutely unable to stir. My kind hostess came and took charge of me; all day she held me in the pleasant captivity of the quiet, perfumed chamber, keeping intruders away; and not until dusk did she pronounce me convalescent, or fit to appear at her dinner- party.

I would gladly have evaded this ordeal; but I was really well enough now, and her kindness was not to be resisted. With all her other cares she lent her own assistance to her maid’s in arranging my toilet, and took as deep an inte- rest in the result as if I had been her daughter. I selected a rich black dress covered with violet ribbons, and with many pleasantries about my sober taste, she led me down stairs.

“You have been missed among us, I assure you,” she whispered, as she paused a moment in the ante-room te shake out her lace flounces. “I have had a thousand questions to answer in your behalf, and Mr. Harter has been waiting impatiently to lead you down.”

We were in the room before I could reply, or control the hurried beating of my heart. What could she mean? The floor seemed to whirl beneath my feet as Mr. Harter took my hand, and at the signal for dinner, transferred it to his arm.

I suppose I answered when addressed, and otherwise sustained my part—for the habit of society teaches us so far to control our emotions; but the grand dinner was a Barmecide feast to me, and less. Mr. Harter sat beside me—silent, except for the ordinary courtesies ef the table; but by his very presence, manner, and attentions, seeming to establish a claim upon me that I felt unable to comprehend or resist.

He was to be, it appeared, the hero of the evening; for he invited all those present to spend it at his house, and go from Mrs. Martyn’s delightful hospitality to his own. “All,’ he repeated, with a wistful, deprecatory glance at me, “if no one objects.”

No one objected; but, on the contrary, his proposal was received with acclamations, and coffee was served earlier to facilitate our departure. As we left the room, Mr. Harter spoke, for the first time, directly addressing me.

“Sylvia,” he whispered, “would it be too much if I asked you to exchange that sober dress for something gayer and lighter, more like yourself, to do honor to my fete?”

His tone and manner were constrained, but there was an indefinable something in both— an assertion of interest in, and responsibility for me—that made my heart stand still at first, then throb more quickly. An instinct of rebellion urged me to refuse to oblige him; to reply that I should not join the party, and was going elsewhere—but this was quite impossible. Mrs. Martyn had accepted the invitation for all her guests. I could not remain behind, and at this hour—what could I do, where should I go? For this one day fate and fortune had, somehow, prevailed against me—my destiny seemed in the hands of others, and I no longer my own mistress; but the next, I averred to myself, both should be conquered, and I be free as air.

While I hesitated, some one spoke behind us— it was Mrs. Martyn, exhorting such as desired to make any change in their dress, to do so at once, while the sleighs were getting ready.

I went upstairs mechanically. Like one in a dream I put on a gay blue silk, the handsomest I had; a white cloak with a tasseled hood; pearls on my neck and arms, and in my ears. When I returned, Mr. Harter stepped forward; everybody seemed already paired off. Could my old intimates leave me so readily to a stranger? A certain hard, defiant feeling came to me with the pain of this conviction, and taking my escort’s offered arm, I walked on proudly.

Mr. Harter’s sleigh was again waiting, but this time it was an elegant little affair, drawn by a pair of spirited black ponies, that tossed their pretty heads and champed upon their silver bits with pretty impatience. As soon as they were set free they darted off, leading the way lightly, and with a motion so swift and straight that the shell, with its trailing robes, must have seemed to those behind to be shooting like a bird onward, and imitating its arrowy flight.

It was a lovely moonlight night, very mild and fair, and the mellow rays shone full on white roads and whiter fields. The task of guiding the fairy vehicle seemed so easy and delightful, that I broke the awkward silence by expressing my admiration of the ponies, and requesting to be allowed to drive them for a moment. The fresh air and the rapid motion had so far revived my spirits; but they sank again as my companion relinquished the reins, with the single simple answer,

“Certainly—they are yours.”

I would have drawn back, but dared not, and, coward-like, dreaded more than anything else, question or explanation. I drove on desperately in utter silence for miles; Mr. Harter sitting by my side, motionless and speechless, like an Indian. Something in his mute patience

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Fuku kara ni Aki no kusa ki no Shiborureba Mube yama kaze wo Arashi to iuramu.

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Tsuki mireba Chiji ni mono koso Kanashi kere Waga mi hitotsu no Aki ni wa aranedo.

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Kono tabi wa Nusa mo tori-aezu Tamuke-yama Momiji no nishiki Kami no mani-mani.

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Na ni shi owaba Ausaka yama no Sanekazura Hito ni shirarede Kuru yoshi mo gana.

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 matter objected to and the grounds of the objection.” Id. at 915 (citations omitted).

Given its failure to raise the argument at trial, Urantia Foundation’s lengthy briefing of the issue on appeal is unavailing. Urantia Foundation participated below in all phases of a jury trial and never objected to the submission of the classification question to the jury. It may not at this late date attempt to avoid the deferential standard appropriate to our review of a district court’s denial of a jnov [sic] motion.

The standard of review for denial of a renewed motion for judgment as a matter of law in a jury trial contesting the validity of a copyright is clear: "We review the district court’s denial of a renewal motion for judgment as a matter of law de novo, applying the same standards as the district court. We must affirm if, viewing the record in the light most favorable to [the nonmoving party], there is evidence upon which the jury could properly return a verdict for [the nonmoving party]. We do not weigh the evidence, pass on the credibility of the witnesses, or substitute our conclusions for that [sic] of the jury. However, we must enter judgment as a matter of law in favor of the moving party if “there is no legally sufficient evidentiary basis … with respect to a claim or defense … under the controlling law.”"

Harolds Stores, Inc. v. Dillard Department Stores, Inc., 82 F.3d 1533, 1546–47 (10th Cir.1996) (citations omitted).

 * 3. Composite Work

We proceed, under the standard articulated supra, to consider whether the record contains evidence upon which a reasonable jury could have concluded that The Urantia Book is not a composite work. Any such evidence terminates our inquiry in favor of Michael Foundation, the nonmoving party.

The term “composite work” appears in, but is not defined by, the 1909 Act. Composites are related, however, to “compilations,” which the Act does define. Compilations are works “formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. The leading treatise on copyright law defines the composite category as a subcategory of compilations, but distinct from compilations in that each individual work within a composite must be independently copyrightable, whereas there is no such requirement for a compilation. Nimmer on Copyright, § 3.02. Individual works in a compilation need not come from the same author, as long as they are discrete, independent works. Examples of compilations include periodicals, catalogs, and encyclopedias. Under both the 1909 Act and the 1976 Act, the proprietor of a “periodical, cyclopedic, or other composite work” is entitled to renew the copyright it originally obtained in the work. 17 U.S.C. § 24 (repealed); 17 U.S.C. § 304(a)(1)(B)(i).

Urantia Foundation advances four arguments in support of its contention that The Urantia Book is a composite work as a matter of law: (1) The Urantia Book is a composite work per se because it is a collection of 196 separate, individually titled papers on a wide variety of topics, most of which the Conduit wrote and delivered separately to the Contact Commission; (2) because the question of whether


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42 A HASTY MARRIAGE.

touched my heart, and I was mistress enough of myself to smile, and say a few words of thanks and kindness as I gave up my charge.

The great gates were open for us to drive through, and the dark fir-avenue leading to the house was hung with colored lamps that cast rainbow reflections on the snow. The house itself was ablaze with light, and festal with music. It looked like a fairy palace, with its quaint, beautiful windows crowded with plants and flowers, the glass glittering like diamonds, the birds and blossoms behind them shining in the brilliant glare like colored jewels all along the picturesque, wide front. I thought I was dreaming still as we alighted and ascended the marble steps. In the vestibule Mr. Harter turned, and with unusual softness in his black eyes, took my hand, and welcomed me to " Paradise."

"Paradise," for so public opinion in the neighborhood had named it—and Paradise, indeed, it was, as lady guests, now fast arriving, declared, as they wandered from one to another of the gem-like rooms. I followed, too, on the arm of my escort, secretly reluctant, but reassured by his silence, and the presence of the others. Close beside me, like my shadow, moved Walter Drummond, neither speaking to, nor looking at me, but keeping over all my motions an incessant surveillance, that made me doubly uncomfortable.

We visited the basements, with their wide and convenient offices, the garrets, the chambers, beautifully furnished and appointed: the very roof, battlemented and smooth as a floor. Everywhere were evidences not only of mere wealth and opulence, or large expenditure, but of the taste that knows how to use, and the tact that rightly applies it. There was a harmony and fitness in the whole, not wholly the work of upholsterer or architect. Evidently a skilled hand had guided, an artist eye overlooked their labors-the rough miner dwelt in a house in which not merely a prince, but a poet, might have found himself at home.

We came back to the parlors after a lengthened survey, and dispersed about them, examining the beautiful things they contained. Without any appearance of ostentation or overcrowding, there was a real wealth of objects, famous from association, or rare in art. Mr. Harter kept near me, looking quietly pleased at my pleasure; on the other side Walter Drummond stood speechlessly, with a gloomy frown on his forehead. When I explored with others the treasures of the library-shelves, and found there all my old favorite books, and many more that I had long desired to see, his face was darkened with an unsympathetic sneer; and when I paused before some exquisite pictures and mosaics from Italy, such as my dear father used to bring back from his voyages, to ornament our pretty home, he resented the tears that filled my eyes, and the loving delight with which I bent over them.

"I see, Sylvia, you are like all your sex," he said, "and gradate your admiration by the price of the object to be admired. A cheaper article would have moved you less."

His tone stung me, and I was roused to retort.

"They are rare and precious," I returned, "but they have another value in my eyes. I have seen such only once before, Mr. Drummond, and it is no wonder the sight disturbed me, for they remind the homeless of home."

I said it recklessly, angry at his notice of my weakness, and looked up quickly, in time to see his baffled look, and meet Mr. Harter's eyes. Were there actually tears in them? At any rate, his countenance was strangely softened and beautified by the momentary expression it wore. A little while before, I could have wondered how this common, self-made man, had possessed himself of such treasures of art, as not merely wealth alone, but time, and taste, and training, sensitive perceptions and delicate instincts, were needed to buy; yet since seeing him, for the first time in his own home, where he was at ease and unconstrained, and now moved by another's grief to gentle sympathy and pity, I began to understand how this dark, impassive mask might conceal much that we had never fancied he could feel. He had looked both genial and good while receiving his guests with noble hospitality; and as the duties of a host obliged him to lay aside much of his ordinary reserve, there was a refinement of kindness in his manner, to which even Walter Drummond's sneers could not blind me.

He regarded me now a moment in silence, and turned to speak to Mrs. M'Donald, who with her husband drew near, I fancied, at a sign from him. The group we formed was somewhat apart from the others, who were intently examining the various curious and beautiful objects the room contained; and I understood that we were going to see something not yet exhibited, as I put my hand reluctantly in Walter's extended arm.

III.

Our conductor paused before a little white door, at the end of a suite of rooms we had lately examined, opened it, and disclosed a

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 The Urantia Book is a composite work is one of law for the court and The Urantia Book was in evidence, this court should disregard the jury’s verdict, examine the 2097 pages of The Urantia Book itself, and hold as a matter of law that it is a composite work; (3) if the question of whether The Urantia Book is a composite work was properly one of fact for the jury, McMullan’s testimony should not determine the outcome because he was an accused infringer; and (4) the district court improperly instructed the jury that, when the works of a single author are collected together, the intent of the author determines whether a composite or a unified work results.

In response to the first assertion, Michael Foundation argues that the evidence indicates that The Urantia Book is, in fact, a unified literary work by a single author and not a compilation of works selected and arranged by a third party. For example, the jury heard evidence that the Contact Commission did not select or arrange the papers that comprise The Urantia Book, but published them precisely as the Conduit presented them. The Conduit also announced, before writing the papers that eventually became The Urantia Book, that he would create a book, not a series of separate papers. The jury also heard evidence that, while the individual papers bear separate titles, they are not distinct, unrelated works but chapters of The Urantia Book, which the Conduit intended to constitute a unified work. Such evidence satisfies the deferential standard of review applicable to this argument.

We addressed Urantia Foundation’s second argument in our discussion of the appropriate standard of review and need not repeat that discussion here. We disagree with Urantia Foundation’s third proposition. Its contention that the testimony of McMullan—the person it has sued for infringement—may not be allowed to “determine” the outcome of this case is without merit. The jury was free to consider McMullan’s testimony and give it whatever weight it found appropriate; that is the jury’s function. Moreover, the jury heard a great deal of testimony, and there is no reason to believe that McMullan’s testimony “determined” the outcome. Finally, Urantia Foundation objected to none of the testimony below; thus, if there is an argument to be made here Urantia Foundation has waived it. Fed.R.Evid. 103(a)(1).

Finally, Urantia Foundation argues that the district court improperly instructed the jury that where a single author’s works are compiled, that author’s intent determines whether the work is unified or a composite. Urantia Foundation properly preserved this objection below, though


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 it failed to provide this court with a citation to the portion of the record containing its objection. An erroneous jury instruction mandates reversal: (1) if we have “substantial doubt whether the instructions, considered as a whole, properly guided the jury in its deliberations,” ''Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co.'', 175 F.3d 1221, 1235 (10th Cir.1999) (quotation omitted); or (2) “when a deficient jury instruction is prejudicial,” i.e., where the jury might have based its verdict on the allegedly defective instruction. ''Coleman v. B-G Maint. Mgmt. of Colo., Inc.'', 108 F.3d 1199, 1202 (10th Cir.1997).

It is not clear whether an author’s intent determines the classification of a book comprised exclusively of his own work. The statute and the caselaw are silent on the question. Michael Foundation argues—by analogy to the settled distinction between joint works and collective works, which is based upon authorial intent—that intent is, or at least should be, the centrolling factor. Because the question appears to be unsettled, we cannot, without settling the question ourselves, say that the district court’s articulation of the standard in its jury instruction is erroneous. We need not reach this question, because even if the instruction overstated the importance of authorial intent, we find no grounds therein for reversal. “We review jury instructions de novo, and must view the instructions in their entirety, deciding


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 not whether the instruction was completely faultless, but whether the jury was misled in any way. Thus, ‘“‘ [sic][w]here a jury instruction is legally erroneous, we must reverse if the jury might have based its verdict on the erroneously given instruction.’” Coleman, 108 F.3d at 1202 (citation omitted) (emphasis added). We have reviewed the jury instructions in their entirety and find that, taken as a whole, they properly guided the jury. Id.; Morrison Knudsen, 175 F.3d at 1235. Especially in light of (1) the fact that the Conduit, being dead, did not testify as to his intentions, leaving the details of those intentions part of the murky history of the composition of The Urantia Book, and (2) the fact that the book itself was, as Urantia Foundation points out, in evidence, we see no reason whatsoever to believe that the jury based its verdict on the possibly erroneous instruction. See Coleman, 108 F.3d at 1202.

The dispositive fact is, simply, that ample evidence was presented to the jury to support its determination that The Urantia Book is not a composite work. Viewing the evidence in the record, as we must, in the light most favorable to Michael Foundation, we hold that the district court properly denied Urantia Foundation’s renewed motion for judgment as a matter of law.

 * 4. Commissioned Work

Urantia Foundation alternatively argues that The Urantia Book is a commissioned work. If this is so, Urantia Foundation’s 1983 renewal as proprietor of the copyright is valid. The 1909 Act did not contemplate “commissioned works.” The Act did provide that “in the case of … any work copyrighted by … an employer for whom such work is made for hire, the proprietor of such copyright shall be entitied to a renewal and extension of the copyright in such work.” 17 U.S.C. § 24 (repealed); 17 U.S.C. § 304(a)(1)(B)(ii) (emphasis added). Urantia Foundation does not argue that a traditional employment relationship existed between the Contact Commission and the Conduit; rather, it argues that the Contact Commission specially commissioned The Urantia Book from the Conduit.

The commissioned works doctrine began as a judicially created stopgap, applying the 1909 Act’s provisions regarding works created for hire in traditional employer-employee relationships to those created on commission in independent contractor relationships. While the 1976 Act codifies this judicially created doctrine, 17 U.S.C. § 101, the 1909 Act applies to the relationship at issue in this case. Thus, in order to prove a commissioning relationship existed such that Urantia Foundation’s 1983 renewal was valid, Urantia Foundation must satisfy the test developed by the relevant caselaw.

Aside from its question-of-law argument, which we have discussed and rejected supra, Urantia Foundation advances three main arguments in support of its contention that the district court erred when it refused to hold as a matter of law that the Contact Commission specially commissioned The Urantia Book from the Conduit. We address first Urantia Foundation’s belated argument that “the district court’s order is … based on the erroneous premise that a commissioning


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 party must establish that it had the right to control the content of a work in order for the work to qualify as a commissioned work.” Urantia Foundation neglects to mention that it drafted the language upon which the district court relied. For obvious reasons, Urantia Foundation did not object to the instruction below; it has consequentially waived the argument on appeal. Urantia Foundation’s disingenuous challenge to its own jury instruction is without merit.

Urantia Foundation next argues that the evidence presented to the jury mandates judgment as a matter of law as to the existence of a commissioning relationship under the “instance and expense” test. We need not resolve the parties’ dispute as to whether the proper test includes factors beyond instance and expense. Even under the two-prong test Urantia Foundation urges us to adopt, Urantia Foundation’s argument is without merit. Urantia Foundation argues that the “instance” prong is met because the Contact Commission, its predecessor in interest, “solicited, formulated, selected, and submitted questions” to the Conduit and “supervised hundreds of sessions with” the Conduit. The Urantia Papers arose, however, out of the Conduit’s psychiatric sessions with Dr. Sadler. The sessions occured at the Conduit’s instance, not Dr. Sadler’s. As Michael Foundation correctly points out, in the doctor-patient relationship, the doctor is the patient’s fiduciary, not the other way around. Furthermore, the Conduit began writing the Urantia Papers on his own initiative, and “announced to the contact group the plan to initiate the Urantia Papers” after having delivered papers of celestial origin to Dr. Sadler for twenty years. The Conduit himself requested the questions from the Contact Commission. The Supreme Court has indicated that the test for whether a work is commissioned applies “at the time the commission is accepted.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 741, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (discussing general principles of agency law while construing section 101 of the 1976 Act). Upon review of the record, we agree that the Contact Commission’s role in creating The Urantia Book was “little more than a reaction to an already ongoing process of creation.”

Urantia Foundation argues that the “expense” prong is met because of costs incurred in providing stenographic materials, typing the Conduit’s handwritten manuscripts, correcting spelling and capitalization errors, and financing the later publication of The Urantia Book. But the Conduit produced the papers that comprise The Urantia Book alone, in long-hand, and one witness testified that the Contact Commission received the information at the Conduit’s home. Michael Foundation argues that, “[d]istilled to its essence, Urantia Foundation’s argument is that because it acted as publisher of the work and defrayed all expenses in that capacity, the work itself is transmogrified ex ante into something produced on commission.” We agree that such a view would render most published works “commissioned.”

Finally, Urantia Foundation argues that (1) its 1983 renewal certificate, which lists The Urantia Book as a “work for hire”


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 and Urantia Foundation as “author,” creates a rebuttable presumption that The Urantia Book is a commissioned work, and (2) Michael Foundation failed to rebut the presumption. For several reasons, we disagree. First, as we noted above, the “specially commissioned work” doctrine is a creation of courts extending the 1909 Act’s “work for hire” provisions to independent contractor relationships. Because federal courts did not apply the work for hire doctrine to commissioned works until after 1965, Urantia Foundation cannot have claimed the work as a commissioned work when it filed its original certificate in 1956. See Reid, 490 U.S. at 749, 109 S.Ct. 2266 (citation omitted). The certificate cannot be prima facie evidence of a relationship embodied in a common law doctrine not yet created by the courts. Second, the jury’s determination, supported by ample evidence, that no commissioning relationship existed, does rebut the presumption.

In short, under the appropriately deferential standard of review, there is ample evidence in the record to support the jury’s determination that no commissioning relationship existed between the Conduit and the Contact Commission. The district court, therefore, did not commit reversible error when it denied Urantia Foundation’s renewed motion for judgment as a matter of law on the question of whether its predecessor in interest commissioned the Conduit to create The Urantia Book.

 * B. Exclusion of Barbara Newsom’s Testimony on Grounds of Unfair Surprise

Urantia Foundation moved below for a new trial based upon the district court’s exclusion of Barbara Newsom’s testimony on grounds of unfair surprise. The district court denied the motion, and Urantia Foundation on appeal asserts that this was error requiring us to remand the case to the district court for a new trial. We review the denial of a motion for a new trial for a manifest abuse of discretion. Aguinaga v. United Food & Commercial Workers Int’l Union, 998 F.2d 1463 (10th Cir.1993), ''cert. denied'', 510 U.S. 1072, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994).

Urantia Foundation proffered testimony from Newsom that the Conduit “was aware of the Urantia Papers, knew of the Contact Commission’s intent to publish them, and disclaimed any copyright in the papers.” Newsom’s testimony would have been based upon secret journals purportedly prepared by Dr. Sadler and kept in a locked file cabinet until their unexplained


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 disappearance in 1979. Newsom would have testified that she examined the journals twenty years earlier while researching a history that she was writing about the Urantia movement. The district court excluded the evidence on the ground that it would unfairly surprise Michael Foundation, Michael Foundation contends that the admission of the secret journals would have been prejudicial to it because the Joint Pre-trial Report did not adequately prepare it for the testimony, which Urantia Foundation offered four and one-half days into trial, after Michael Foundation had rested.

We agree. Urantia Foundation’s contention that Michael Foundation would not have been unfairly surprised seems disingenuous, given that Urantia Foundation’s own counsel claimed ignorance of Newsom’s potential testimony as to the purported secret journals until the Friday night before the Monday morning on which Urantia Foundation offered her testimony. Urantia Foundation points to the Final Joint Pre-trial Report, which indicated that Newsom would testify “as to the matter in which ‘The 50 Years’ anniversary document was prepared, matters relating to the origin of The Urantia Book.” Urantia Foundation asserted that this adequately prepared Michael Foundation for Newsom’s testimony. But that report was prepared before even Urantia Foundation’s own counsel knew of the existence of the purported secret journals; given the particular nature of the proffered testimony, it therefore appears likely that Michael Foundation did not receive adequate notice.

Exelusion of evidence at trial is within the sound discretion of the trial court; thus “an evidentiary ruling will be reversed only on a showing that the trial court abused its discretion.” Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1456 (10th Cir.1990) (citation omitted). Newsom’s testimony was announced well into the trial, after Michael Foundation had rested. It concerned the contents of purported secret journals, purportedly kept in locked filing cabinets, until their purported mysterious disappearance over twenty years ago, and purportedly contained evidence highly injurious to Michael Foundation’s case. Suffice it to say that we do not find the district court’s exclusion of Newsom’s testimony to have been an abuse of its broad discretion.

III.

Viewing the evidence in the light most favorable to Michael Foundation, we find that substantial evidence supports the jury’s determination that The Urantia Book is neither a composite nor a commissioned work. We therefore AFFIRM the district court’s denial of Urantia Foundation’s renewed motion for judgment as a matter of law. Because the trial court did not abuse its broad discretion in excluding, on grounds of unfair surprise, the testimony of Barbara Newsom as to the contents of purported secret journals, we AFFIRM the district court’s denial of Urantia Foundation’s motion for a new trial.

McWILLIAMS, Senior Circuit Judge, dissenting.

In my view, the district court erred in denying Urantia Foundation’s motion for judgment, n.o.v. I hold that the Urantia Foundation’s renewal copyright is valid and enforceable as a matter of law. See Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir.1997).


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EATH had no terrors, Life no joys, Before I met with thee; But now I fear, however long My life may chance to be, ’Twill be too short for me!

Yoshitaka died in the year 974. See for a note of the Fujiwara family.


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HOUGH love, like blisters made from leaves Grown on Mount Ibuki, Torments me more than I can say, My lady shall not see, How she is paining me.

The writer lived some time at the close of the tenth century. The artemisia plant (or mugwort) is used in Japan for cauterizing; a conical wad of the leaves or blossoms is placed on the spot, lit at the top, and allowed to burn down to the skin; this produces a blister, and is extremely painful. Ibuki is a hill, between the Provinces of Omi and Mino, famous for its artemisia, but ibuki can also stand for iu beki, which, in conjunction with e ya wa, would mean, ‘Ah! how could I tell her!’ But eyawa as one word means ‘indescribable!’ Notice also sashimo in the third and fourth lines; sashi-mogusa means ‘the artemisia plant’, but sashi mo means ‘even though it is smarting’; sashimo, in one word, can also mean ‘in such a way’. This verse is a very good example of the way the Japanese love to play upon words. The picture seems to show Mount Ibuki with the mugwort growing on it.


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LTHOUGH I know the gentle night Will surely follow morn, Yet, when I’m wakened by the sun, Turn over, stretch and yawn— How I detest the dawn!

Michi-nobu lived in the tenth century. He is shown in the illustration with his wife on the verandah, watching the day break.


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LL through the long and dreary night I lie awake and moan; How desolate my chamber feels, How weary I have grown Of being left alone!

This lady was the daughter of Motoyasu Fujiwara, and the wife of the Regent Kaneie; she was famous for her beauty, and lived in the reign of the Emperor Mura-kami (947–967). It is related, that her husband returned home late one night, and, having to wait a moment or two before she let him in, he angrily reproached her, and she replied with this verse (see illustration).

Yo no akuru ma means ‘until the dawn’, but akuru ma also suggests that the room is empty when he is away.


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OW difficult it is for men Not to forget the past! I fear my husband’s love for me Is disappearing fast; This day must be my last.

The real name of this lady was Taka, and her son’s name was Korechika Fujiwara. She lived about 1004, and it is supposed that this verse was written in a fit of jealousy against her husband; she is shown in the picture all alone at home bewailing her lot.


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HIS waterfall’s melodious voice Was famed both far and near; Although it long has ceased to flow, Yet still with memory’s ear Its gentle splash I hear.

This poet was the father of the writer of, and was a member of the Fujiwara family at the zenith of their power; he was a great statesman and scholar, and died in the year 1041. The verse was written in praise of a waterfall that had been made by the orders of the Emperor Saga early in the ninth century, but which had by this time ceased to exist; and the illustration well shows the watercourse now run dry.


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Y life is drawing to a close, I cannot longer stay, A pleasant memory of thee I fain would take away; So visit me, I pray.

This lady was the daughter of Masamine Ōye, and the wife of Michisada Tachibana, Governor of the Province of Izumi, hence her name; and also was the mother of the author of. She lived about the latter end of the tenth century, and was one of the lady poets who gave distinction to that period. The verse was addressed to her husband or lover just before her death, and in the illustration we see her on her deathbed, with two servants in the foreground.


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WANDERED forth this moonlight night, And some one hurried by; But who it was I could not see,— Clouds driving o’er the sky Obscured the moon on high.

This lady lost her mother when very young, and her father, the minister Toyonari Fujiwara, married again. Her skill at composing verses caused her stepmother to become jealous, and the latter treated her with great cruelty. She married Nobutaka, a nobleman, and the following verse was written by her daughter. She is famous in Japanese literature as the authoress of Genji Monogatari, a historical work in fifty-four sections, which she wrote in the monastery of Ishiyama, near Kyōto. She was one night taking a moonlight stroll on her verandah and caught sight of her lover; but, though she barely recognized him, the Kokinshiu, from which the verse is taken, adds that you are to understand that her reputation was overshadowed from that moment, like the moon behind the clouds. She died in the year 992.

Sore tomo can mean either ‘though I glanced at him’, or else (wakanu, I did not recognize) ‘that friend’.


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A

HASTY

MARRIAGE.

beautiful "boudoir, " or parlor- I prefer the English word-furnished entirely in white and blue. A white carpet covered with wreaths of light-blue violets and forget-me-nots; window draperies of lace lined with silk, and furniture of damask and satin-wood; all blue and white, like the dress I wore, were reflected in the mirror above the marble mantle. There were books, and birds, and flowers, pictures, and music, and a sparkling fire lighted in the grate; but the room had no occupant till the others stood aside to let me pass.

I put my hand in my kind old friend’s, and we went in together. A little sofa was rolled before the fire, and she drew me upon it, with her arm about my waist. Walter Drummond stood beside us like a sullen guardian; and opposite, Mr. Harter leaned his elbow on the mantle, and looked at the group we made. I trembled when his eyes met mine, for I somehow knew that the beautiful room had been furnished for me that day, and that he was going to ask me to occupy it as its mistress. Yet when he spoke, it was something very different that he said.

Addressing me directly, as if there had been no other person present, in a hurried but most strait forward manner, he gave me the plainest history of himself, concealing nothing, and excusing nothing that it was needful we should hear. Perhaps few lives could have borne the test of so close a chronicle—no word was said in his own praise or favor, no effort made to gain sympathy or win credit; I never listened to such a frank confession. “You and your friends should know,” he said, “what the man is who is about to ask so much of you. To report alone you cannot trust, as I will prove to you; nor solely to the opinions gathered from testimony like this,” for he had offered a pile of letters and documents to Mr. M‘Donald and Walter Drummond, which the young lawyer was examining with keen, inimical eyes, the elder with anxious and cautious observation through his spectacles. These, it would seem, were satisfactory, for the careful scrutiny ended in their being tendered back with many assurances to Mr. Harter, who received them with a smile.

“After all, these papers,” he said, “tell you less of my life and character than I will tell you, or than common rumor has already told, and told mostly wrong. It is said that 1 am a man of low birth and no education, whese fortune has been gained by a lucky accident, and who is not wholly worthy of all he aspires to possess. The last is the only truth.

“If my education has been neglected, it was my fault alone, and not that of my father, an accomplished surgeon, spending always more than his large income in gratifying elegant and artistic tastes. From my birth I lived among luxuries, never, I fear, entirely paid for, and fancies gratified at an extraordinary sacrifice. My time, and that of my brother and sister, was spent at the best schools and academies. In my first cullege-year, my father died, leaving two motherless children, a rough, healthy, active boy, and a delicate little girl.

“His library, horses, carriages, and house, were swallowed up by his debts; the beautiful pictures and statues were sold; the scientific, literary, and artistic treasures he had so care- fully collected, were widely scattered, and after their sacrifice, much was still left unpaid. I saw the very end of the ruin and destruction, put my sister in the only place where I hoped she would be kindly cared for, and went to sea before the mast, to support her.

“The schedule of my father’s debts in my pocket, and the memory of the little life dependent upon mine, urged me to energy and industry. I was away for years, following fortune wherever others had seemed to find it—in India, Japan, and China, on the Pacific Coast, in the Black Sea. At first I heard often from home—during ‘he latter part of the time, not at all; but I was neither stimulated by tidings, nor unnerved by their absence—the stake was too great for that. I continued steadily to forward letters and remittances, and at last was able to come home. Neither letters-nor remittances had been touched—my sister was lying near her father and her brother; and her grave, thick-grown with grass and daisies, looked as old as theirs.

“I spent the sum that was to have brought us together, and given us again a happy home, in paying the last remaining debts of my father. Then again, poor, homeless, friendless, and forlorn, I went away to seek relief in the ceaseless struggle of existence at the very ends of the earth.

“The gold fields of Australia had just been discovered, and I repaired there with thousands of others. Alone, motiveless, with nothing to lose, and comparatively indifferent to gain, fortune singularly favored me. From a mere miner I became a proprietor, a merchant, a millionaire—and here only report will not have belied me, while it says all my earnings were honest ones. Weary of the rough colonial life, and of an existence devoted to selfish gain and accumulation, I remembered the education of my boyhood; and now that I was able to gratify those dormant tastes and tendencies, I traveled

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is remarkable for its picturesque situation, Rome and Florence for their exquisite treasures of art; while Venice alone, which has no delicious scenery, and but few collections to boast, possesses, on the other hand, a peculiar charm which the above-mentioned cities have notthat of the romantic. What, indeed, has a better claim to the epithet of romantic, than the celebrated Place of St. Mark, with the adjoining piazzetta? Enclosed on three sides by magnificent edifices, this place runs down close to the sea; the spray of which, when it is agitated, reaches the pillars, supporting the one the celebrated lion, and the other the image of St. Theodore. On the left appears the lofty pointed steeple, and near it the church of St. Mark, with its numerous singularly shaped cupolas, which have more of an oriental than christian air. In front of it, on metal pedestals, magnificently decorated, are planted three tall masts, bearing at their tops the arms of Candia, Cyprus, and the Morea; from which, on particular occasions, prodigiously large red and white streamers float down to the ground. On the right, upon the

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 lips quivered; his knees shook; conscious guilt was depicted in all his features. Towards evening he repaired, with a full purse in his bosom, to the palace of the supreme tribunal. The habitation of the gaoler was soon found. His heart was moved, not by the gold, which he proudly rejected, but by the deplorable state of Camillo, to whom he disclosed what he was desirous of knowing. He had himself conducted Apollonia and her husband, after their examination, to their fate across the Bridge of Sighs. “Then”—he made gestures to signify strangulation; and Camillo was obliged to lay hold of the iron gate to keep himself from falling. In the prison where they had been confined together, they had left some words written on the wall. Camillo begged as the highest favour to be permitted to see this writing, and his request was granted. The writing was Apollonia’s, which Camillo knew but too well, only traced by a trembling hand. Silently weeping, he fell upon his knees, apparently offering up a short prayer: he then quitted the terrific building, and hastened back to the Frangipani palace, where he gave the porter all his money, with the injunction to cause masses to be said annually on the 3d of September for his master and mistress. He then hurried away, and was never heard of afterwards. 1em

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44 A HASTY MARRIAGE. widely, collecting curiosities of art and beauty, that would have delighted my father’s heart, but gave hardly a throb of pleasure to my own; for to what end should I gather treasures or riches? No one on earth sympathized with my success, or shared my happiness.

“Tired of drifting about the world, I came back at last to my native country, with the purpose of establishing for myself a place to which I might return from time to time, and, perhaps, rest wholly in ai last. My bankers sent me here; and I have found much occupation and healthful pleasure in arranging and founding it. Yet, now that it is finished, I am more than ever conscious of the want in it, and in myself— the void that money cannot fill, or art supply, and which alone can make it what it is not, but should be, yet what others, with far less pains and toil, have been s6 blest to win—a home.

“I have seen,” he went on, his hand trembling a little in its rest upon the marble, his dark eyes still lifted, “in Arabian deserts, tents of poorest structure, in western prairies rude huts of log and clay, that were happier houses than mine, for the voices of children, the laughter of women, the busy life of household cares and household joys and sorrows, filled them all day long. There were united affections, undivided interests, hearts that beat and brains that planned to the same good and cheerful end; there was poverty lightly borne for the sake of the love that sprung from it—and there would riches have given tenfold the pleasure they can ever give to me, because they would have gladdened many lives in blessing one.

“In my home,” he said, “which they ignorantly call ‘Paradise,’ birds sing and fountains rustle; but there is silence, for no voice I care to hear can speak to me. The flowers grow with none to pluck them; the rooms are empty and dull; the beauty and the luxury you so admire, to me are but fairy illusions, for my eyes see them as the worthless dross they are. Poor in the midst of riches, I want something better than they can offer, better than my life has hitherto known, without which it is useless, insensate, dead. I want to give my future an aim, my heart a new existence of hope and joy, my house a mistress. Sylvia, will you come?”

He moved nearer, and looked and spoke as if unconscious of any presence but my own.

“When first I saw you I admired, as all must do, but never thought of loving the sparkling ball-room beanty, with whom I, a dull, plain, middle-aged man, could have nothing in com- mon. Then, with others, I heard the story of your sad losses, your domestic trials; finally, of the crisis which left you as utterly homeless and forlorn as I had been at your age. Too well I remembered my own efforts and sufferings, yet I had been a vigorous boy, you were but a delicate and helpless girl. I resolved to be your defence against ill-fortune. How, I did not yet perceive, but I hoped to discover a way. Last night, all through the gay festivities, I watched your face, and read in it all the tortures of anxiety, regret, and fear you suffered. While I pondered, vexed and bewildered by my own helplessness, distressed by the sight of your repressed anguish, a sudden chance threw in my way an opportunity to accomplish all I had desired in your behalf, and more. Temptation took a form so fair and dazzling, that if I was selfish in yielding to its dictates, believe me, Sylvia, I did not know it till too late! I swear to you that, until I held your innocent hand in mine, until I heard your voice pronounce the words that pledged you, un scious, to so much, I never thought at what a cost to you my resolution of saving you must be fulfilled.

“Your hesitation, your half consent in the face of urgent warning; the look with which you seemed at once to doubt, and fear, and trust; your continued presence at my side, and the touch of your passive fingers, emboldened me to a step which all my life I must regret or bless. Forgive me if I knew, even as I challenged it, the fearful risk incurred. With the beating of your pulse on mine, I recognized the mysterious tie between us. I felt the tempest that shook your soul, and I realized more fully than you could do all that must follow, yet I was selfish enough to permit the ceremony to go on, for in that moment pity and admiration disappeared; a love was born in my heart, so deep and fond, that I fancied it could avert all, atone to you for all.

“And, Sylvia, I am selfish still, for I love you, and I wish for you still—I want you for my wife. I would bring your beauty to bless my ugliness, your brightness to cheer my gloom, your blooming youth to adorn my stern, middle-age. I can give you little in return for so much; but all I have and am is yours, and there shall be no bound to my affection or my care for you.

“On the other hand, if the sacrifice is too gréat, the thought of all it involves too painful and irksome; remember that my wealth, valueless but for this, shall break the nominal tie between us with a breath, while in its name I shall bestow on you what will keep the woman I love forever safe from poverty and dependence. Choose then freely, for in either case your future

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S fickle as the mountain gusts That on the moor I’ve met, ’Twere best to think no more of thee, And let thee go. But yet I never can forget.

The name given above is only a title, and the real name of this lady is unknown; she was the daughter of the writer of, and the wife of Daini Nariakira. The picture shows her on the moor composing the verse. Note the echoing sound in the last line, ‘Wasure yawa suru.’


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Rh long with them uch light bodies as they meet with in their way. On occaion of which Hypotheis I hall offer it to be conider'd, Whether by the gravity of the Atmopherical Air, urmounting the Specifick Gravity of the little and rarifi'd Atmophere, made about the Amber by its emiions, and compriing the light Body faten'd on by them, the Attraction may not in divers caes be either caued or promoted.

Another Hypotheis is that propoed by that Ingenious Gentleman Sir Kenelm Digby, and embraced by the very Learned Dr. Browne, (who eems to make our Gilbert himelf to have been of it) and divers other agacious men. And according to this Hypotheis, the Amber, or other Electrick, being chaf'd or heated, is made to emit certain Rayes or Files of unctuous Steams, which, when they come to be a little cool'd by the external air, are omewhat condens'd, and having lot of their former agitation, hrink back to the body

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AITING and hoping for thy step, Sleepless in bed I lie, All through the night, until the moon, Leaving her post on high, Slips sideways down the sky.

This writer is again a lady; she is said to have addressed the verse to Michinaga Fujiwara, who held the office of Regent under the Emperor Ichijō ( 987–1011) and his two successors. Regent here must be understood not exactly as a temporary or vice Emperor, but rather as the Emperor’s confidential adviser, and the official through whom all communications were made. Notice the moon in the illustration just disappearing behind the hill.


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O long and dreary is the road, That I have never been To Ama-no-Hashidate; Pray, how could I have seen The verses that you mean?

Koshikibu was the daughter of the writer of, and early became known as a poetess. The story goes, that she was suspected of getting help from her mother in composing poetry; and on one occasion, during the absence of the latter at Ama-no-Hashidate, she was selected to take part in a poetical contest at Court. A day or two before the event a nobleman laughingly asked her, if she was not expecting a letter from her mother, hinting that she would otherwise be unable to produce a poem good enough for the contest, and she, touching his sleeve, improvised the above verse. The original brings in not only Ama-no-Hashidate, a picturesque bay in the Province of Tango, but also two other proper names, Mount Ohoye and Ikuno, which are on the road there from Kyōto; but this the translation fails to do.

The last couplet can mean ‘I have not walked to or seen Ama-no-Hashidate’, and also, ‘I have not seen any letter from Ama-no-Hashidate.’


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HE double cherry trees, which grew At Nara in past days, Now beautify this Palace, and Their blossoms all ablaze Perfume the royal ways.

The Lady Ise was another of the famous literary women, that distinguished the Imperial Court at the end of the tenth century; she was associated with the Province of Ise, from which she gets her name. Nara was the capital city from 709 to 784, after which the Court moved to Kyōto. It is related, that during the reign of the Emperor Ichijō ( 987–1011) a nobleman presented him with a spray of the eight-petalled cherry trees that grew at Nara; the Emperor was so delighted, that he had the trees, or perhaps cuttings from them, brought to Kyōto, and this verse commemorates the event.

Kokonoe (Palace) really means ‘ninefold’, and refers to the nine enclosures of the Imperial Residence; it is here contrasted with yaezakura, the eightfold or double cherry blossom.


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A HASTY MARRIAGE. 45 is assured and clear, and by my hurried yielding to a moment’s impulse I shall have done you no wrong. If you justly refuse to regard its consequences as binding, the old friend at your side, to whose kindness I owe this interview, will take you to her house, which will be yours until a happier one shall open to receive you, and your girlish heart be given to a better mate than mine. Choose then, Sylvia, unencumbered by thoughts of the past, or fears for the future in this crisis of your fate. Pray heaven to guide you, and decide the happiness or the misery of your life.”

Walter Drummond came to my side as Mr. Harter ceased—his face was flushed, his manner excited and eager. He, too, spoke with an absolute oblivion of the presence of others, but how differently!

“Accept his offer, Sylvia,” he urged. “Take the reparation he tenders, and which he owes you, for thus, in your ignorance and helplessness, linking your name with his; repudiate that hasty action—let him repay you and re- lease you.”

I saw Mr. Harter’s lip curl, but he listened patiently.

“It was wholly my fault,” I said, “and I will take nothing.”

“You will take my advice,” he insisted, “for I love you, Sylvia, and I know that you love me— our interests are one. The claims of our long friendship, and our constant associations—often sought by you—our community of tastes, feelings, and sympathies; our congeniality in youth, even in personal attributes, prove it impossible that you should submit willingly to the fate that threatens you. Had I feared such weakness on your part, such daring on that of others, I would have spoken before and set your heart at rest. Come with me, then, and trust your case in my hands; a little time and patience will set you free, and you shall be my wife, the daughter of my parents!”

Strangely enough, this bright prospect could not move me; I was growing cold and dull, and his sharp sentences fell faintly on my ears. Torn and weakened by long excitement; always unequal to the crisis through which I had to pass; swayed by many conflicting emotions, and hardly understanding the wish of my own heart, which Mr. Harter had generously besought me to follow, much less the arguments by which Walter Drummond appealed to my reason, I was incapable of answering either. I only knew that the younger man had been my friend, possibly my lover; but that I could never wish him to be dearer or more near—his friendship sufficed me, perhaps, even less—for since he claimed me so boldly, I shrank from him with an invincible repugnance. His rapacity and want of delicacy, albeit for my sake, disgusted and mortified me deeply; his reading of my thoughtless encouragement in times past was humiliating to hear; his judgment of his rival’s forbearance and generosity, of his noble motives and deeds— both narrow and mean. Although I could not have put my hurried thoughts, my confused sensations into words, I felt an instinct of aversion so strong, that if my choice must lie between the two men, I knew now that he, at least, could never be my husband.

“Do you consent, Sylvia?” he impatiently demanded, annoyed, I suppose, at my silence and stolidity. “Will you do as I have said?”

“I cannot,” I faltered.

“Ah!” he sneered, “then wealth and luxury are, indeed, as powerful with you as I had thought them. I know the temptation is strong; with a million of money, what a setting might not your beauty receive! Truly, it would be pleasant to reign like a queen in this charming little palace, and to find every whim gratified as soon as formed, like the Beast’s fair bride in the fairy tale. Better, no doubt, to you than to be the wife of a poor professional man, absorbed in the struggle of the world. Forgive the error, but I thought your nature impassioned, not frivolous, and fancied love might be something to you!”

I could have answered his sarcasm with tears; his anger with passionate avowal: my heart ached with such an empty, longing pain under his words. “It is much,” I could have said; “it should be all, if you but offered anything so sweet and so divine. But this that you bring me is not love; pique or admiration it may be, vanity and self-interest it surely is. No pure or gentle feeling so dictated softens your hard glance, or speaks in the milder modulation of your tones. Even your friendship, once so prized, I doubt, if it wears this form and holds this language. True love is modest, genérous, and gentle; I have seen it to-night for the first time, and recognized it by those attributes in the man you so despise. If it is this you would have me seek, how can I turn from him and follow you?”

I could have said all this, I mean, could I have had strength to pronounce it, or even to arrange my thoughts in collected form—but the words remained unspoken, the meaning unexplained, for, in truth, I was fast sinking into insensibility. I heard Walter’s voice impetuously, almost angrily, urging me to answer, and

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46 LEAVE ME NOT! TO MY WIFE.

Mr. Harter, in a tone that thrilled me even then, proving how severely, by that long suspense, his partial endurance had been tried, repeat once more, entreatingly, its formula, "Sylvia, choose!” and then I heard no more. My heavy head sunk lower and lower to Mrs. M-Donald’s lap, and all worldly trouble swept by me like a wave.

When next I raised it, two faces only were bending over me—two faces that had nothing in common but a look of anxiety and dismay. One was young, smooth, refined, even passably handsome; once it had been pleasant and wel- come to me in its kindness; but under this new phase of vision, it seemed hard, and eager, and celd. The other, with rougher lineaments, but softened and warmed by a feeling almost divine, bent above me with pity and tenderness like an angel’s. Love alone, most gentle, most com- passionate, purest, and least selfish of earthly passions, had etherialized that older and more rugged face, till it wore a beauty the youthful one never knew. I could not reason, nor think, nor weigh and ponder, had I felt disposed; for a time sense and memory were in abeyance, and I realized only that a shadowy trouble over- hung me, from which I sought protection. By a blessed impulse of instinct, I stretched out my hands, not to the wealth with which Mr. Harter might fill them; not to the husband I had wedded in haste by a contract which pride compelled me to ratify; but to the love in that kind face and noble heart, that has been my rock of refuge ever since.

LEAVE ME NOT!

BY J. R. GARRISON JONES. LEAVE me not! leave me not! thou art my star! Without thee my life would be dark; I fly to thy bosom when sorrow-clouds lower, As the dove to the sheltering ark. Leave me not! leave me not ! others are kind, But the light in their eyes is less true ; The Heaven of their love is o'erclouded by storms, While thine's ever sunny and blue.

Leave me not! leave me not ! thou art my joy; I have poured all my heart's garnered store, In one measureless flood of deep love, at thy feet, And the angels could give thee no more. Leave me not! leave me not! mournful thy bird Would fold her bright wings, didst thou go; And her songs gushing sadly, would tell but the tale Of an o'erburdened heart in their flow. Leave me not! leave me not! thon art my life; By thy side I am nearer to Heaven; The hopes of long years, and the laurels of fame, For thy fond faith have gladly been given. Leave me not ! leave me not ! canst thou forsake The heart that to thee fondly turns With a worship as deep as the Chaldean knows, For his star in the broad Heaven that burns.

Leave me not! leave me not! shadows and clouds, And a lone, weary pathway were mine; The flowers droop and die when their light turns away Like a flower I have lived but in thine. Leave me not! leave me not! by the days that are past, Though the world is both weary and wide, The dreariest lot, and the saddest of homes, Were the sweetest, if shared by thy side.

LEAVE ME NOT!—TO MY WIFE,

BY D. A. BIBB.

My heart is filled with quiet joy, More high than that of childhood's day ; The thoughtless gladness of the boy, Which time and sorrow swept away, A nobler feeling doth replace, Whene'er I gaze, beloved, upon thy placid face.

And I rejoice that few beside, See there the beauty which I find For thus thou art still more my bride, Thy life with mine more intertwined; I stand the more from men apart, Thy lover, and the loved of thy devoted heart.

And since we have not wealth to tempt Attention from the false and vile; And since I know thy soul exempt From earth's ambitions as its guile, I feel, beholding other's care, As though I were a dweller of another sphere.

But late I scorned myself, and all My fellow denizens of earth; Thy smile released me from a thrall, Thy kiss bestowed a magic birth; Thy tears, like rain to drooping trees, Refreshed my withering soul, and brought it strength and peace.

And now, like one inclosed within A crystal fortress, safe from harm, I look forth on the shapes of sin That lure men, by their baleful charm, To shame and woe, that would not be, If each one loved some fellow-soul as I love thee. ·

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F we could meet in privacy, Where no one else could see, Softly I’d whisper in thy ear This little word from me— ‘I’m dying, Love, for thee.’

Michimasa was a member of the Fujiwara family, who lived about the year 1030. He fell in love with the Princess Masako, a priestess of Ise; but when the Emperor heard of this, he put the Princess into confinement, where she was strictly guarded by female warders, and this verse was Michimasa’s request to her to try to arrange a private meeting with him. The words omoi-taenamu, which is the message he sends to her, mean, ‘I shall die of love’; but they can also mean ‘I shall think no more about you’; so perhaps he intended the verse to be read in different ways, according to whether it reached the Princess, or fell into the hands of her guards. In the picture Michimasa is shown outside the fortress, where the Princess is confined.


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O thickly lies the morning mist, That I can scarcely see The fish-nets on the river bank, The River of Uji, Past daybreak though it be.

The writer was the son of the author of ; he died in the year 1004. The River Uji is in the Province of Omi, and drains into Lake Biwa. Seze is a village on the lake-side, and a suburb of the larger town of Otsu. The poet, looking across the river, can hardly make out the fish-nets on the shore at Seze, because of the rising morning mist.


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E not displeased, but pardon me, If still my tears o’erflow; My lover ’s gone, and my good name, Which once I valued so, I fear must also go.

This lady was the wife of Kinsuke Ōye, the Governor of the Province of Sagami, from which she got her name. The verse is said to have been composed at an Imperial poetical contest in the year 1051. The incidents mentioned in these verses are not all supposed to have really taken place; many of the poems, including this one, were simply written on a given subject for one of the poetical contests, which were so common at the period.


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N lonely solitude I dwell, No human face I see; And so we two must sympathize, Oh mountain cherry tree; I have no friend but thee.

The Archbishop is said to have ended his life in the year 1135, by the method described in the note to. The scene of this poem was the sacred mountain Ōmine, in the Province of Yamato, famous for its cherry blossoms, and the illustration shows the Priest with his two attendants addressing the cherry tree.


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F I had made thy proffered arm A pillow for my head For but the moment’s time, in which A summer’s dream had fled, What would the world have said?

The authoress was the daughter of Tsugunaka Taira, the Governor of the Province of Suwo, and a lady-in-waiting at the Court of the Emperor Goreizei, who reigned 1046–1068. She was present one day at a long and tedious court function, and, feeling very tired and sleepy, she called to a servant for a pillow; a nobleman on the other side of the screen, the First Adviser of State Tadaie, gallantly offered her his arm, with a request that she would rest her head there, and she replied with this verse. She intended him to understand that, though she was willing to accept him as her husband for life, she feared that his attachment would last no longer than a fleeting summer-night’s dream.


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150Rh but for two facts: first, that Wei-hai-wei is completely useless to us, and secondly, that the lease had only two more years to run. By the terms of the lease, in fact, it should have been restored as soon as Russia lost Port Arthur, however many years it still had to run at that date.

One very important result of the Washington Conference is the agreement not to fortify islands in the Pacific, with certain specified exceptions. This agreement, if it is adhered to, will make war between America and Japan very difficult, unless we were allied with America. Without a naval base somewhere near Japan, America could hardly bring naval force to bear on the Japanese Navy. It had been the intention of the Navy Department to fortify Guam with a view to turning it into a first-class naval base. The fact that America has been willing to forgo this intention must be taken as evidence of a genuine desire to preserve the peace with Japan.

Various small concessions were made to China. There is to be a revision of the Customs Schedule to bring it to an effective five per cent. The foreign Post Offices are to be abolished, though the Japanese have insisted that a certain number of Japanese should be employed in the Chinese Post Office. They had the effrontery to pretend that they desired this for the sake of the efficiency of the postal service, though the Chinese post is excellent and the Japanese is notoriously one of the worst in the world. The chief use to which the Japanese have put their postal service in China has been the importation of morphia, as they have not allowed the Chinese Customs authorities to examine parcels sent through their Post Office. The development of the Japanese importation of morphia into China, as well as the


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F in this troubled world of ours I still must linger on, My only friend shall be the moon, Which on my sadness shone, When other friends were gone.

The Emperor Sanjō, who reigned 1012–1015, was the son of the Emperor Reisei; he fell into ill health, his palace was burnt down twice, and he was forced to abdicate by Michinaga Fujiwara (see ).


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HE storms, which round Mount Mimuro Are wont to howl and scream, Have thickly scattered maple leaves Upon Tatsuta’s stream; Like red brocade they seem.

The poet’s lay name was Nagayasu Tachibana; he was the son of Motoyasu Tachibana, the Governor of the Province of Hizen. Mount Mimuro and the Tatsuta River are both in the Province of Yamato, not far from Nara. The picture is not very clear, but the river is plainly depicted, and maple leaves are scattered all around.


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151Rh growth of the poppy in Manchuria, where they have control, has been a very sinister feature of their penetration of China.

Of course the Open Door, equality of opportunity, the independence and integrity of China, etc. etc., were reaffirmed at Washington; but these are mere empty phrases devoid of meaning.

From the Chinese point of view, the chief achievement at Washington was the Shantung Treaty. Ever since the expulsion by the Germans at the end of 1914, the Japanese had held Kiaochow Bay, which includes the port of Tsingtau; they had stationed troops along the whole extent of the Shantung Railway; and by the treaty following the Twenty-one Demands, they had preferential treatment as regards all industrial undertakings in Shantung. The railway belonged to them by right of conquest, and through it they acquired control of the whole province. When an excuse was needed for increasing the garrison, they supplied arms to brigands, and claimed that their intervention was necessary to suppress the resulting disorder. This state of affairs was legalized by the Treaty of Versailles, to which, however, America and China were not parties. The Washington Conference, therefore, supplied an opportunity of raising the question afresh.

At first, however, it seemed as if the Japanese would have things all their own way. The Chinese wished to raise the question before the Conference, while the Japanese wished to settle it in direct negotiation with China. This point was important, because, ever since the Lansing-Ishii agreement, the Japanese have tried to get the Powers to recognize,


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 THE STORY OF MAGGIE.

BY THE AUTHOR OF "SUSY L'S DIARY."

CONCLUDED FROM VOLUME LV, PAGE 439.

CHAPTER XI.

THE artist had finished his work, and gone to Boston to get that and other things ready for the exhibition. Webster had breathed his last, and been "buried with the mourning of a mighty nation."

The melancholy days of autumn were fully come. The ground was already strewn with the brilliantly-dyed leaves the winds had torn, the worms had eaten ; and which, on this account, were the first to fall. There were long, comfortless storms, (comfortless, that is, to the heavy-laden,) when, all the nights long, the wind was out, sighing, moaning; and Maggie, awake on her pillow, her eyes wide open upon the darkness, lay still as death, and heard every sound. She wept a great deal, tear after tear, sometimes a great rain of tears, going drop, drop, drop, on her pillow; but she made her weeping soft as possible, that she might not waken Anna. And, in all those hours, through all those weeks, she did not once wake her, or know her to be awake, so sound was her innocent, safe slumber.

By day she governed herself as well as she was able; tried to be cheerful; tried to laugh, and not look so large-eyed and haggard. She really believed, she said to herself before her mirror, that she did look haggard. Oh, dear! oh, dear! And then again her heart took up the lamentation of OEnone: "Oh! mother Ida, many-fountained Ida, Dear mother Ida, hearken ere I die. Oh! happy Heaven, how canst thou see my face? Oh! happy earth, how canst thou bear my weight? Oh, death, death, death ! thou ever-fleeting cloud, There are enough unhappy on this earth; Pass by the happy souls that love to live; I pray thee pass before my light of life, And shadow all my soul, that I may die."

It happened, I hardly know how, that Major Waters drank much worse that fall than he had ever done before; and I think that, in his mind, Maggie's increasing sadness, and altered looks, were attributed to her uneasiness and disapprobation on this account. He, therefore, became every day more rigid and sarcastic toward her. Whatever dissatisfaction Mrs. Waters or Anna might show, met only sullen indifference, or, at most, the bang of a chair, or door; while, if he only saw Maggie paler, graver than usual, his irrascibility knew no bounds of decency, but broke out with, "Don't you think you're a handsome, pleasant-looking girl, Miss Meg? That is what they all call you, I believe; Webster, and all; that popinjay of a painter, and all; handsome-our handsome daughter.”

And then it was certainly horrible for Maggie to bear, when, caught by recollections of poor Alice and her mother in " Dombey and Son," he went on, chuckling to see with what misery it filled her, " Handsome, she's my handsome gal; she's our handsome gal, mother-our han'some gal," taking up his hat to go out.

Did she not wish the floor, the earth- oh! if the earth, kind mother earth, would open her ever-friendly bosom to hide her away from men.

At other times, she went away to attic or garden, somewhere where her mother and Anna were not likely to come, and there gave herself up to unrestrained sobbing. When the fit passed a little, she felt that, perhaps, she would die if she suffered a little more; it seemed to her that she would. At any rate, the strength of her youth was gone; the summer of her life, the joy and gladness, were ended. Moaning, she said that if only her father would be kind to her, it would give her a little strength, courage. Whatever else he might be, even if he were ten, a hundred times further gone in his habits of intemperance, she would be glad to be taken to his arms and comforted, supported-for she had never, never loved him as she did then. The love she, as a child, felt for him was as a drop to the full flood. And then to have him so hard, so unkind toward her; and again the tears and sobs came. But she had no strength, and they soon passed; and she sat like one stunned, looking out into the trees shining with wet, swinging and tossing in the wind.

By-and-by, she began to say to her mother and Anna that she could not stay at home, her father was so harsh toward her. She would die, she told them. But she thought that if she went to Manchester, where great-aunt Hester was in her house alone, now John was gone, she would feel better ; and, perhaps, he would miss her, when she was gone, and understand how cruel he had been to her. She forbade their saying anything to him about these reasons, as, in the state he was then, it would only irritate him

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HE prospect from my cottage shows No other hut in sight; The solitude depresses me, Like deepening twilight On a chill autumn night.

Nothing is known of this author, but he appears to have lived during the eleventh century. The Priest appears in the illustration, looking out over the bare landscape, with his tiny hut in the background.


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153Rh of a patriotic movement among their merchants. This, however, the Japanese refused to agree to. What was finally done was that the Chinese were compelled to borrow the money from the Japanese Government to be repaid in fifteen years, with an option of repayment in five years. The railway was valued at 53,400,000 gold marks, plus the costs involved in repairs or improvements incurred by Japan, less deterioration; and it was to be handed over to China within nine months of the signature of the treaty. Until the purchase price, borrowed from Japan, is repaid, the Japanese retain a certain degree of control over the railway: a Japanese traffic manager is to be appointed, and two accountants, one Chinese and the other Japanese, under the control of a Chinese President.

It is clear that, on paper, this gives the Chinese everything five years hence. Whether things will work out so depends upon whether, five years hence, any Power is prepared to force Japan to keep her word. As both Mr. Hughes and Sir Arthur Balfour strongly urged the Chinese to agree to this compromise, it must be assumed that America and Great Britain have some responsibility for seeing that it is properly carried out. In that case, we may perhaps expect that in the end China will acquire complete control of the Shantung railway.

On the whole, it must be said that China did better at Washington than might have been expected. As regards the larger aspects of the new international situation arising out of the Conference, I shall deal with them in the next chapter. But in our present connection it is necessary to consider certain Far Eastern questions not discussed at Washington, since the mere fact that they were not discussed gave them a new form.


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HIS autumn night the wind blows shrill, And would that I could catch Its message, as it whistles through The rushes in the thatch And leaves of my rice-patch.

Tsune-nobu, a member of the Minamoto family, was famous as a man of letters in the eleventh century, and died in the year 1096.


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HE sound of ripples on the shore Ne’er fails at Takashi; My sleeves all worn and wet with tears Should surely prove to thee, I, too, will constant be.

The Lady Kii lived at the Court of the Emperor Horikawa, who reigned 1087–1107. Takashi is a seaside place in the Province of Izumi, not far from Ōsaka, and on the shore we see the Lady Kii, perhaps composing this verse to her lover.


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154Rh The question of Manchuria and Inner Mongolia was not raised at Washington. It may therefore be assumed that Japan's position there is secure until such time as the Chinese, or the Russians, or both together, are strong enough to challenge it. America, at any rate, will not raise the question unless friction occurs on some other issue. (See Appendix.)

The Siberian question also was not settled. Therefore Japan's ambitions in Vladivostok and the Maritime Provinces will presumably remain unchecked except in so far as the Russians unaided are able to check them. There is a chronic state of semi-war between the Japanese and the Far Eastern Republic, and there seems no reason why it should end in any near future. The Japanese from time to time announce that they have decided to withdraw, but they simultaneously send fresh troops. A conference between them and the Chita Government has been taking place at Dairen, and from time to time announcements have appeared to the effect that an agreement has been reached or was about to be reached. But on April 16th (1922) the Japanese broke up the Conference. The Times of April 27th contains both the Japanese and the Russian official accounts of this break up. The Japanese statement is given in The Times as follows:—

The Japanese Embassy communicates the text of a statement given out on April 20th by the Japanese Foreign Office on the Dairen Conference.

It begins by recalling that in response to the repeatedly expressed desire of the Chita Government, the Japanese Government decided to enter into negotiations. The first meeting took place on August 26th last year.

The Japanese demands included the non-enforcement of communistic principles in the Republic against Japanese, the prohibition of Bolshevist propaganda, the abolition of


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155Rh menacing military establishments, the adoption of the principle of the open door in Siberia, and the removal of industrial restrictions on foreigners. Desiring speedily to conclude an agreement, so that the withdrawal of troops might be carried out as soon as possible, Japan met the wishes of Chita as far as practicable. Though, from the outset, Chita pressed for a speedy settlement of the Nicolaievsk affair, Japan eventually agreed to take up the Nicolaievsk affair immediately after the conclusion of the basis agreement. She further assured Chita that in settling the affair Japan had no intention of violating the sovereignty and territorial integrity of Russia, and that the troops would be speedily withdrawn from Saghalin after the settlement of the affair, and that Chita'a wishes in regard to the transfer of property now in the custody of the Japanese authorities would be met.

The 11th Division of the troops in Siberia was originally to be relieved during April, but if the Dairen Conference had progressed satisfactorily, the troops, instead of being relieved, would have been sent home. Japan therefore intimated to Chita that should the basis agreement be concluded within a reasonable period these troops would be immediately withdrawn, and proposed the signature of the agreement by the middle of April, so that the preparations for the relief of the said division might be dispensed with. Thereupon Chita not only proposed the immediate despatch of Chita troops to Vladivostok without waiting for the withdrawal of the Japanese troops, but urged that Japan should fix a time-limit for the complete withdrawal of all her troops.

Japan informed Chita that the withdrawal would be carried out within a short period after the conclusion of the detailed arrangements, giving a definite period as desired, and at the same time she proposed the signing of the agreement drawn up by Japan.

Whereas Japan thus throughout the negotiations maintained a sincere and conciliatory attitude, the Chita delegates entirely ignored the spirit in which she offered concessions and brought up one demand after another, thereby trying to gain time. Not only did they refuse to entertain the Japanese proposals, but declared that they would drop the negotiations and return to Chita immediately. The only conclusion from this attitude of the Chita Government is


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HE cherry trees are blossoming On Takasago’s height; Oh may no mountain mist arise, No clouds so soft and white, To hide them from our sight.

This poet was the son of Chika-nari Ooi, and died in the year 1112. Takasago is on the sea-coast in the Province of Harima, and is also mentioned in.

Masafusa with his attendant appears in the illustration admiring the cherry trees on the mountains, over which, however, the clouds are already beginning to gather.


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H! Kwannon, Patron of this hill, The maid, for whom I pine, Is obstinate and wayward, like The gusts around thy shrine. What of those prayers of mine?

Toshi-yori is supposed to have been the son of the writer of ; he probably lived early in the twelfth century. Hatsuse is a mountain village near Nara, in the Province of Yamato; the temple there is dedicated to Kwannon, Goddess of Mercy, ‘who looketh for ever down above the sound of prayer.’


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156Rh that they lacked a sincere effort to bring the negotiations to fruition, and the Japanese Government instructed its delegates to quit Dairen.

The Russian official account is given by The Times immediately below the above. It is as follows:—

Readers will believe one or other of these official statements according to their prejudices, while those who wish to think themselves impartial will assume that the truth lies somewhere between the two. For my part, I believe the Russian statement. But even from the Japanese communiqué it is evident that what wrecked the Conference was Japanese


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T is a promise unfulfilled, For which I humbly sue; The dainty little mugwort plant Relies upon the dew, And I rely—on you.

The writer lived early in the twelfth century, when the Court was given over to intrigue. Tadamichi Fujiwara, the Regent, had promised him a post of honour for his son, but had, year after year, failed to fulfil it. The verse is a gentle reminder, and the last couplet, which does not appear in the translation, delicately hints that the autumn of the present year also is slipping away. In the illustration we see Mototoshi addressing his petition to the Regent.


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6 ther it will reach all Electrical Bodies; and it eems to me, that the reaon why he rejects the way of explicating Attraction by the Emiion of the finer parts of the attrahent (to which Hypotheis, if it be rightly propoed, I confes my elf very inclinable) is grounded upon a mitake, which, though a Philoopher may, for want of Experience in that Particular, without diparagement fall into, is nevertheless a mitake. For whereas our excellent Author ays, that Electrical Effluvia, uch as are uppoed to be emitted by Amber, Wax, &c. cannot be imagin'd to proceed from Glas, I grant the Suppoition to be plauible, but cannot allow it to be true. For as olid a body as Glas is, yet if you but dextrouly rub for two or three minutes a couple of pieces of Glas againt one another, you will find that Glas is not onely capable of emitting Effluvia, but uch ones as to be odorous, and ometimes to be rankly tinking. But

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Rh But it is not neceary, that in this Paper, where I pretend not to write Dicoures but Notes, I hould confider all that has been, or I think may be, aid for and againt each of the above-mentioned Hypothees; ince they all agree in what is ufficient for my preent purpoe, namely, that Electrical Attractions are not the Effects of a meer Quality, but of a Subtantial Emanation from the attracting Body: And 'tis plain, that they all endeavour to olve the Phænomena in a Mechanical way, without recurring to Subtantial Forms, and inexplicable Qualities, or o much as taking notice of the Hypotatical Principles of the Chymits. Wherefore it may uffice in this place, that I mention ome Phænomena that in general make it probable, that Amber, &c. draws uch light Bodies, as pieces of Straw, Hair, and the like, by vertue of ome Mechanical Affections either of the attracting or of the attracted Bodies, or of both the one and the other. 1. The

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8 1. The first and mot general Obervation is, That Electrical Bodies draw not unless they be warm'd; which Rule though I have now and then found to admit of an Exception, (whereof I elewhere offer an account,) yet, as to the generality of common Electricks, it holds well enough to give much countenance to our Doctrine, which teaches the effects of Electrical Bodies to be perform'd by Corporeal Emanations. For 'tis known, that Heat, by agitating the parts of a fit Body, olicites it as it were to end forth its Effluvia, as is obvious in odoriferous Gums and Perfumes, which, being heated, end forth their fragrant teams, both further and more copiouly than otherwie they would.

2. Next, it has been oberv'd, that Amber, &c. warm'd by the fire, does not attract o vigorouly, as if it acquire an equal degree of heat by being chaf'd or rub'd: So that the modification of motion in the internal parts, and in the Emanations of the

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