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conditions), does not ordinarily take away the fact of a conviction. Instead, it only relieves the effects of a conviction.

Second, Hartwig v PE Hack was distinguished in Thornton and the basis for that distinction is applicable in this case. The applicant in Hartwig v PE Hack had been found guilty of an offence, but a Queensland court had exercised the discretion conferred by s 12(1) of the Penalties and Sentences Act 1992 (Qld) to not record a conviction. However, under that legislation, a "conviction" was defined to mean "a finding of guilt, or the acceptance of a plea of guilty, by a court" such that a person was "convicted" by a finding of guilt or the acceptance of a plea of guilty even if no conviction was recorded. Hence, under that State law it was not correct to say that the applicant in that case was taken never to have been convicted. By contrast, under the provisions of the Youth Justice Act considered in Thornton, a finding of guilt without any conviction being recorded was not, and was not taken to be, a conviction for any purpose. The same position applies under the Children Proceedings Act.

The Minister further submitted that, unlike s 184(2) of the Youth Justice Act as considered in Thornton, there is nothing in s 14(1)(a) of the Children Proceedings Act that provides that a person is taken never to have been convicted of an offence under a law of New South Wales for all purposes. The Minister noted that s 14 is found within Pt 2, which only applies in a curial context.

This submission should also be rejected. Leaving aside s 33(6) of the Children Proceedings Act, the Court was not referred to any statutory provision which imposed any limit on the purposes for or circumstances in which a child who is the subject of a finding of guilt in the circumstances referred to in s 14(1)(a)


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 of this wreck of a vessel belonging to Western Europe being found on the East Coast of Africa joined with the knowledge that these vessels did not pass through the Mediterranean Sea, gave Eudoxus the idea that the vessel he had the figure head of must have come round Africa from the West Coast, and he then proceeded to Cadiz and equipped three vessels, one large and two of smaller size, and started out to do the same thing, bar wrecking. He sailed down the known West Coast without trouble, but when he came to passing on into the unknown seas, he had trouble with the crews, and was compelled to beach his vessels. After doing this he succeeded in persuading his crews to proceed, but it was then found impossible to float the largest vessel, so she was abandoned, and the expedition proceeded in the smaller and in a ship constructed from the wreck of the larger on which the cargo was shipped with the expedition. Eudoxus reached apparently Senegambia, and then another mutiny broke out, and he had to return to Barbary. But undaunted he then fitted out another expedition, consisting of two smaller vessels, and once again sailed to the South to circumnavigate Africa. Nothing since has been heard of Eudoxus of Cyzicus surnamed the Brave.

On his second voyage he fell in with natives who, he says, spoke the same language that he had previously heard on the Eastern Coast of Africa. If he was right in this, some authors hold he must have gone down the West Coast, at least as far as Cameroons, because there you

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is treated or taken as having not been convicted. It follows that under State law, the plaintiff is taken never to have been convicted of the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for all relevant purposes and in all relevant circumstances.

Further, the fact that Pt 2 of the Children Proceedings Act, of which s 14 forms part, operates in a curial context does not affect the absence of any limit on the purpose for and circumstances in which the plaintiff is taken never to have been convicted. The application of Pt 2 to "any court ... exercis[ing] criminal jurisdiction" and "any criminal proceedings before any such court" are words of expansion and not limitation. They confirm the application of Pt 2 to all such courts. The functions of making a finding of guilt then proceeding to and recording a conviction are reposed in courts exercising criminal jurisdiction and not administrative decision-makers. A legislative restriction on the circumstances in which a court not exercising criminal jurisdiction, or a body other than a court, would proceed to or record a conviction would be nonsensical.

The Minister's submissions also referred to the limited restrictions on the use of the finding of guilt found in s 15 of the Children Proceedings Act. It was submitted that this provision "says nothing as to whether regard may be had to a finding of guilt in relation to an offence committed by a child by an administrative decision-maker". The Minister contended that, unlike s 184(2) of the Youth Justice Act, which expressly stated that a finding of guilt is not taken to be a conviction "for any purpose", s 15(1) of the Children Proceedings Act does not prohibit consideration being given to findings of guilt by an administrative decision-maker. On this approach, the reference in the delegate's decision to the plaintiff's convictions in the Children's Court should be construed as references to findings of guilt and the delegate's reliance on these findings of guilt was consistent with Direction No 55, which does not limit considerations to a visa holder's convictions but includes a consideration of, inter alia, the visa holder's "offences", "conduct" and "criminal behaviour".

This contention elides the question of whether the Children Proceedings Act purports to preclude the use of the finding of guilt contemplated by s 14, in all or at least some circumstances and for all or at least some purposes, with the question posed by s 85ZR(2) of the Crimes Act, namely, whether the Children Proceedings Act purports to preclude such a finding of guilt being treated as a conviction in all or at least some circumstances and for all or at least some purposes. In relation to the former, s 15(1) precludes the use of the finding of guilt in criminal proceedings in some, but not all, circumstances and does not impose any restriction on its use for the purposes of making an administrative decision. However, in relation to the latter, the effect of the Children Proceedings Act is that such a finding is not to be treated or taken as a conviction for any purpose unless


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 nowadays first strike the language, which does stretch across the continent, namely, the Bantu, and we have no reason to suppose that the Bantu border line was ever further North on this Coast than it is at present; indeed, the indications are, I think, the other way; but as far as the language goes, it seems to me that Eudoxus could have heard the same language as on the East African Coast far higher up than Cameroons, namely, on the Moroccoan Coast, for in those days, prior to the great Arab invasion, most likely the language of the Berber races had possession of Northern Africa from East Coast to West. However, there is another statement of his which I think points to Eudoxus having gone far South, namely, that the reason of his turning back was an inability to get provisions, for this catastrophe is not likely to have overtaken so brave a man as he was until he reached the great mangrove swamps of the Niger. The litoral of the Sahara was in those days, we may presume, from the accounts we have far later from Leo Africanus and Arab writers, more luxuriant and heavily populated than it is at present.

Of these voyages, however, we have such scant record that we need not dwell on them further, and so we will return to about 300, and consider the wonderful voyage made by Hanno of Carthage, of which we have more detailed knowledge; although there still remains a certain amount of doubt as to who exactly Hanno was, mainly on account of Hanno apparently having been to Carthage what Jones is to North Wales—the name of a number of individuals with a habit of doing everything and frequently distinguishing themselves greatly. The Carthaginians were to the classic world much what the English are to the modern, a great colonising,

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 commercial people—warlike when wanted. They planted colonies in North Africa and elsewhere, and had commercial relationship with all the then known nations of the world, including a trans-Sahara trade with the people living to the South of the Great Desert. We shall never know to the full where those Carthaginians went, from the paucity of record; but we have record of the voyage of this Hanno in a Periplus originally written in the Punic language and then translated into Greek. Hanno, it seems, was a chief magistrate at Carthage, and Pliny says his voyage was undertaken when Carthage was in a most flourishing condition. From the Periplus we learn that the expedition to the West Coast consisted of sixty ships of fifty oars each, and 30,000 persons of both sexes, ample provisions and everything necessary for so great an undertaking. The object of this expedition was to explore, to found colonies, and to increase commerce. The expedition, after passing the Pillars of

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some other provision of State law specifically provides to that effect. That is sufficient to engage s 85ZR(2).

Under the Youth Justice Act considered in Thornton, a finding of guilt made against a child could not be used in any subsequent proceedings against them as an adult for an offence and could not form part of the criminal history of any adult. Although those restrictions on the use of a finding of guilt were wider than those imposed by s 15 of the Children Proceedings Act, they did not preclude a finding of guilt being used for a purpose, or in a circumstance, analogous to a consideration of whether to cancel a visa. Even so, that did not inhibit the majority judgments in Thornton from concluding that the Minister was precluded from taking into account the respondent's "youth offending" and the "finding[s] of guilt".

Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending" and "finding[s] of guilt" that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.

Jurisdictional error, materiality and relief

It was not disputed by the Minister that, if it was accepted that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act precluded the delegate from considering the plaintiff's "convictions" for which he was sentenced by the Children's Court when he was under the age of 16 years, then the delegate's decision was affected by


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jurisdictional error. This concession extended to accepting that the erroneous consideration was material to the delegate's decision. Those concessions were rightly made. It follows that a writ of certiorari should issue quashing the delegate's decision. The Minister should pay the plaintiff's costs.


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 Hercules, sailed two days along the coast and founded their first colony, which they called Thymatirum. Just south of this place, on a promontory called Soloeis, they built a temple to Neptune. A short distance further on they found a beautiful lake, the edges of which were bordered with large reeds, the country abounding in elephants and other game; a day's sail from this place, they founded five small cities near the sea called respectively Cariconticos, Gytte, Acra, Millitea, and Arambys. The next most important part of their voyage was their discovery of the great River Lixius, on the banks of which they found a pastoral people they called the Lixitae. These seem to have been a mild people; but there were in the neighbourhood tribes of a ferocious character, and they were also told there were Trogloditae dwelling in the mountains, where the Lixius took its rise, who were fleeter than horses. Unfortunately we are not told how long the Carthaginians took in reaching this River Lixius; but if the Carthaginians had been keeping close in shore they would not have met with a river that looked great until they reached the mouth of the Ouro (23°36' N. lat.), which is four miles wide, but only an estuary; but as the Carthaginians do not seem to have gone up it, they may not have noticed its imperfections, and so, pursuing that dangerous method of judging a West African river from its mouth, regarded it as a great river. However this may have been, they took with them as guides and interpreters some of the Lixitae, and continued their voyage for three days, when they came to a large bay, an island in it containing a circle of five stadia, and proceeded to found another colony on that island, calling it Cerne, where they judged

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 they were as far from the Pillars of Hercules as these were from Carthage. So it is held now that Cerne is the same as the French trading station Arguin (about 240 miles north of Senegal River), on to whose shoals the wreck of the French frigate La Méduse drifted in 1816, the tragedy of which is familiar to us all from Géricault's great painting.

Hanno next called at a place where there was a great lake, which they entered by sailing up a river called by them Cheretes. In this they found three islands, all larger than the island of Cerne. One day's sail then brought them to the extremity of the lake overhung by mountains, which were inhabited by savages clad in wild beasts' skins, who prevented their landing by pelting them with stones. The next point in their voyage was a large and broad river, infested with crocodiles and river horses; and from this place they made their way back to Cerne, where they rested and repaired and then set forth again, sailing south along the African shores for twelve successive days. The language of the natives of these regions the Lixitae did not understand, and the Carthaginians could not hold any communication with them for another reason, that they always fled from them; towards the last day they approached some large mountains covered with trees. They went on two days further, when they came to a large opening in the sea, on land on either side of which was a plain whereon they saw fires in every direction. At this place they refilled their

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 marked for disaster. Public indifference had aroused the scorn of the irascible members of the orchestra, and there was imminent danger of a collapse in the organization. Gardner lived in constant fear that his troop of quarrelsome Hungarians would finish their tour suddenly in a pitched battle with daggers and steins. Brewster smiled at the thought of practical Gardner trying to smooth down the electric emotions of these musicians.

A few days later Mrs. Prentiss Drew and Miss Drew registered at the Ponce de Leon, and there was much speculation upon the chances for a reconciliation. Monty, however, maintained a strict silence on the subject, and refused to satisfy the curiosity of his friends. Mrs. Drew had brought down a small crowd, including two pretty Kentucky girls and a young Chicago millionaire. She lived well and sensibly, with none of the extravagance that characterized the cottage. Yet it was inevitable that Brewster's guests should see hers and join some of their riding parties. Monty pleaded that he was not well enough to be in these excursions, but neither he nor Barbara cared to over-emphasize their estrangement.

Peggy Gray was in despair over Monty's atti-


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 tude. She had become convinced that behind his pride he was cherishing a secret longing for Barbara. Yet she could not see how the walls were to be broken down if he maintained this icy reserve. She was sure that the masterful tone was the one to win with a girl like that, but evidently Monty would not accept advice. That he was mistaken about Barbara's feeling she did not doubt for a moment, and she saw things going hopelessly wrong for want of a word. There were times when she let herself dream of possibilities, but they always ended by seeming too impossible. She cared too much to make the attainment of her vision seem simple. She cared too much to be sure of anything.

At moments she fancied that she might say a word to Miss Drew which would straighten things out. But there was something about her which held her off. Even now that they were thrown together more or less she could not get beyond a certain barrier. It was not until a sunny day when she had accepted Barbara's invitation to drive that things seemed to go more easily. For the first time she felt the charm of the girl, and for the first time Barbara seemed unreservedly friendly. It was a quiet drive they were taking through the woods


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 water barrels, and continued their voyage five days further, when they reached a large bay which their interpreters said was called the Western Horn. In this bay they found a large island, in the centre of which was a salt lake with a small island in it. When they went ashore in the day time they saw no inhabitants, but at night time they heard in every direction a confused noise of pipes, cymbals, drums and song, which alarmed the crew, while the diviners they had with them, equivalent to our naval chaplains, strongly advised Hanno to leave that place as speedily as possible. Hanno, however, being less alarmed than his companions, pushed on South, and they soon found themselves abreast of a country blazing with fires, streams of which seemed to be pouring from the mountain tops down into the sea. "We sailed quickly thence," says Hanno, "being much terrified." Proceeding four days further they found that things did not improve in appearance from their point of view, for the whole country seemed ablaze at night, a country full of fire, and at one point the fire seemed to fly up to the very stars. Hanno says their interpreters told them that this great fire was the Chariot of the Gods. Three days more sailing South brought them to another bay, called the Southern Horn. In this bay they found a large island, in which again there was a lake with another island in it, having inhabitants who were savage, and whose bodies were covered with hair. These people the interpreters called the Gorillae—some were captured and taken aboard, but so savage and unmanageable did they prove that they were killed and the skins preserved. As most of the inhabitants of the Islands of the Gorillae seemed to be females, and as these ladies had made such a gallant fight of it with their Carthaginian

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 and out along the beach, and somehow in the open air things simplified themselves. Finally, in the softness and the idle warmth, even an allusion to Monty, whose name usually meant an embarrassing change of subject, began to seem possible. It was inevitable that Peggy should bring it in; for with her a question of tact was never allowed to dominate when things of moment were at stake. She cowered before the plunge, but she took it unafraid.

"The doctor says Monty may go out driving tomorrow," she began. "Isn't that fine?"

Barbara's only response was to touch her pony a little too sharply with the whip. Peggy went on as if unconscious of the challenge.

"He has been bored to death, poor fellow, in the house all this time, and—"

"Miss Gray, please do not mention Mr. Brewster's name to me again," interrupted Barbara, with a contraction of the eyebrows. But Peggy was seized with a spirit of defiance and plunged recklessly on.

"What is the use, Miss Drew, of taking an attitude like that? I know the situation pretty well, and I can't believe that either Monty or you has lost in a week a feeling that was so deep-seated. I know Monty much too well to


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Lauchli v. United States

Certiorari denied.

title: Lauchli v. United States


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 think that he would change so easily." Peggy still lived largely in her ideals. "And you are too fine a thing not to have suffered under this misunderstanding. It seems as if a very small word would set you both straight."

Barbara drew herself up and kept her eyes on the road which lay white and gleaming in the sun. "I have not the least desire to be set straight." And she was never more serious.

"But it was only a few weeks ago that you were engaged."

"I am sorry," answered Barbara, "that it should have been talked about so much. Mr. Brewster did ask me to marry him, but I never accepted. In fact, it was only his persistence that made me consider the matter at all. I did think about it. I confess that I rather liked him. But it was not long before I found him out."

"What do you mean?" And there was a flash in Peggy's eyes. "What has he done?"

"To my certain knowledge he has spent more than four hundred thousand dollars since last September. That is something, is it not?" Miss Drew said, in her slow, cool voice, and even Peggy's loyalty admitted some justification in the criticism.


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 "Generosity has ceased to be a virtue, then?" she asked coldly.

"Generosity!" exclaimed Barbara, sharply. "It's sheer idiocy. Haven't you heard the things people are saying? They are calling him a fool, and in the clubs they are betting that he will be a pauper within a year."

"Yet they charitably help him to spend his money. And I have noticed that even worldly mammas find him eligible." The comment was not without its caustic side.

"That was months ago, my dear," protested Barbara, calmly. "When he spoke to me—he told me it would be impossible for him to marry within a year. And don't you see that a year may make him an abject beggar?"

"Naturally anything is preferable to a beggar," came in Peggy's clear, soft voice.

Barbara hesitated only a moment.

"Well, you must admit, Miss Gray, that it shows a shameful lack of character. How could any girl be happy with a man like that? And, after all, one must look out for one's own fate."

"Undoubtedly," replied Peggy, but many thoughts were dashing through her brain.

"Shall we turn back to the cottage?" she said, after an awkward silence.


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 captors, Hanno kept their skins to hang up in the Temple of Juno on his return home, evidently intending to be complimentary both to the Goddess and the Gorillae; but it is to be feared neither of them took it as it was meant, for Hanno had no luck from the Gods after this, having to turn back from shortness of provisions, and finally ending his career by, some say, being killed, and others say exiled from Carthage on account of his having a lion so tame that it would carry baggage for him; Punic public opinion held that this demonstrated him to be a man dangerous to the State. The Gorillae seem to have worked out their vengeance on white men by making it more than any man's character for truth is worth to see one of them—except stuffed in a museum, with a label on.

How far Hanno really went down South is not known with any certainty. M. Gosselin held he only reached the River Nun, on the Moroccoan coast. Major Rennell fixed his furthest point somewhere north of Sierra Leone, and held the Island of the Gorillae to be identical with the Island of Sherboro'. Bougainville believed that he at any rate went well into the Bight of Benin, while others think he went at any rate as far as Gaboon. I cannot myself see why he should not have done so, considering the winds and tides of the locality and the time taken; indeed, I should be quite willing to believe he went down to Congo, and that in the most terrific of the fires he witnessed an eruption of the volcanic peak of Cameroon, a volcano not yet extinct. Indeed the name given to this high fire "that almost reached the stars" by his interpreters―the Chariot of the Gods—is not so very unlike the name the Cameroon Peak bears to this day, Mungo Mah Lobeh, the Throne or Place of Thunder, and

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 "You certainly don't approve of Mr. Brewster's conduct?" Barbara did not like to be placed in the wrong, and felt that she must endeavor to justify herself. "He is the most reckless of spendthrifts, we know, and he probably indulges in even less respectable excitement."

Peggy was not tall, but she carried her head at this moment as though she were in the habit of looking down on the world.

"Aren't you going a little too far, Miss Drew?" she asked placidly.

"It is not only New York that laughs at his Quixotic transactions," Barbara persisted. "Mr. Hampton, our guest from Chicago, says the stories are worse out there than they are in the east."

"It is a pity that Monty's illness should have made him so weak," said Peggy quietly, as they turned in through the great iron gates, and Barbara was not slow to see the point.


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 Brewster was comparatively well and strong when he returned to New York in March. His illness had interfered extensively with his plan of campaign and it was imperative that he redouble his efforts, notwithstanding the manifest dismay of his friends. His first act was to call upon Grant & Ripley, from whom he hoped to learn what Swearengen Jones thought of his methods. The lawyers had heard no complaint from Montana, and advised him to continue as he had begun, assuring him, as far as they could, that Jones would not prove unreasonable.

An exchange of telegrams just before his operation had renewed Monty's dread of his eccentric mentor.


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 this native name is also capable of being translated into "the Place of the Gods" or spirits. The thing I do not believe in the affair is that the Lixitae interpreters ever called it or any other place "a chariot"; for as Hanno was the first white man they had seen, and they had no chariots of their own, it is unlikely they could have known anything of chariots; and I think this Chariot of the Gods must have been an error of Hanno's in translating his interpreter's remarks. It is perfectly excusable in him if it is so, because to understand what an interpreter means who does not know your language, and whose own language you are not an adept in, and who is translating from a language regarding which you are both alike ignorant, is a process fraught with difficulty. I have tried it, so speak feelingly. It is true it is not an impossibility, as those unversed in African may hastily conjecture, because at least one-third of an African language consists in gesture, and this gesture part is fairly common to all tribes I have met, so that by means of it you can get on with daily life; but it breaks down badly when you come to the names of places. I myself once went on a long march to a place that subsequent knowledge informed me was "I don't know" in my director's native tongue. Still, if he did not know, I did not know, and so it was all the same. I got there all right, therefore it did not matter to me; but I was haunted during my stay in it by a confused feeling that perhaps I was flying in the face of Science by being somewhere else—being in two places at the same time.

I really, however, cannot help thinking Hanno must have got past the Niger Delta; for there is nothing to frighten any one, as far as the look of things go, until you go south from Calabar, and find yourself facing

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 that magnificent Great Cameroon and Fernando Po; and Hanno's people were scared as they were never scared before. Yet, again, there are those fires, which were in the main doubtless what that very wise and not half-appreciated missionary, the late Rev. J. Leighton Wilson, says they were, namely, fires made by the native burning down the high grass at the end of a dry season to make his farms. Now Hanno could have seen any quantity of these along parts of the shores of the Bight of Benin, but is not likely to have seen them to any alarming extent on the Biafran Bight, because the shores thereof are deeply fringed with mangrove swamps, and the native does not start making farms in them. Hanno might have seen what looked like the smoke of innumerable fires on the sides of Cameroon Mountain and Fernando Po. I myself have seen the whole mighty forest there smoking as if beneath it smouldered the infernal regions themselves; but it is only columns and wafts of mist, and so gives no blaze at night; if you want to see a real land of flame with, over it, a pall of cloud reflecting back its crimson light in a really terrifying way, you must go south of Cameroon, south of Congo Français, south, until you reach the region of the Great Congo itself; and there—on the grass-covered hills and plains of the Lower Congo lands—you will see a land of fire at the end of the dry season, terrific enough to awe any man. Of course, if Hanno passed the Congo and went down as far as the fringing sands of the Kalahari desert, he would certainly not have been able to get stores; but also down there he would not have met with an island on which there were gorillas; for even if we grant that there was sufficient dense forest south of the Congo in his days for gorillas to have inhabited, and allow that in old days gorillas were

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doth generally ork by certain aightes, meaures, proportions and coures, to the reonable hich do bet conider and oberue her order, do bring their orks to bet perfection. But uche as neuer came forth of hel, thinke there is none other heuẽ, and others hich take the fale tor the true, or the doubtful for certain, as beitched by Circes inchauntments, to hich ort the prouerb may be ell applied: the blynd can iudge no colors. and ho is blinder than uch as il not e? Thee be uch as haue bin trained in abue, her ith their ences are o imbued and intoxicate, as they il allo none other maner (be it neuer o reonable, profitable and certain) than that they haue ben traded in. herfore I do dedicate and direct this my trauail to you, hich I kno are bet able to be iudges therof. For lãguages hich are no no longer from the mother to the child, nor of long tyme ved vulgarly, but taught as it er by tepmothers & trange nures, can not be other than corrupted and aliened frõ the nature: o that the trauayled only in them, ith this our mother tong, are not ufficient censores in this matter. herfore thei may do el to be patient vntill they vnderstãd your opiniõs, or se hat experiẽce may do therin. And although I haue published an Orthographie, teaching the true riting of our English toung, I haue not vntill noe published the mote eay ay and order to teach the ame to be read. hich I haue done, vpon the consideration of the intentes of the firt inuentours of letters, (ho oeuer their ucceors Latins and others haue neglected it) hich is the reaon of the facilitie taught hereafter, and o caueth it it to be the more traunge, and therfore the more ubiecte Rh


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 south of the Congo, which they are not now, still, there is no island near the coast. So I am afraid we cannot quite settle Hanno's furthest point, and must content ourselves by saying he was a brave man, a good sailor, and a credit therefore to his country and the human race.

After Hanno's time I cannot find any record of a regular set of trading expeditions down the West Coast by the Carthaginians. From scattered observations it is certain the commerce of the Carthaginians with the Barbary Coast and the Bight of Benin was long carried on; but it does not seem to have been carried on along the coast of the Bight of Biafra; and the voyage in 170 may be cited in support of this, showing that the voyage as far south as Eudoxus went was then considered as marvellous and new. Still, on the other hand, it must be remembered that, prior to our own day, the navigator had no great inducement to tell the rest of the world exactly where he had been; indeed, the navigator whose main interest is commerce is, to this day, not keen on so doing. He would rather keep little geographical facts—such as short cuts by creeks, and places where either gold, or quicksilver, and buried ivory, is plentiful—to himself, than go explaining about these things for the sake of getting an unrepaying honour. One sees this so much in studying the next period of this history—the early Portuguese and early French discoveries; you will find that one of these nations knew about a place years before the other came along, and discovered it, and claimed it as its own—with disputes as a natural consequence.

There has, however, been one very interesting point in the dealing of the nations of higher culture with the Africans, and that is the way their commerce

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 with them has had periods of abeyance. The Egyptians have left us record of having been extensively in touch with the interior of Africa, via the Nile Valley,—then came a pause. Then came the Carthaginian commerce,—then a pause. Then the Portuguese, French, English, Dutch, and Dane trading enterprise, say, roughly from 1340 to 1700,―then a falling off of this enterprise; revived during the Slave-trade days, falling off again on its suppression, and reviving in our own days. I suppose I ought to say greatly, but—well, we will discuss that later. These pauses have always been caused by the nations of higher culture getting too busy with wars at home to trouble themselves about the African, all the more so because the produce of Africa has filtered slowly, whether it was fetched by white man or no, into their markets through the hands of the energetic North African tribes and the Arabs. Whenever the white man has settled down with his home affairs, and has had time to spare, he has always gone and looked up the African again, "discovered him," and he has always found him in the same state of culture that the pioneers of the previous Blüth-period found him in. Hanno does not find down the West Coast another Carthage—he finds bush fires, and hears the tom-tom and the horn and the shouts. He finds people slightly clad and savage. Then read Aluise da Ca da Mostro and the rest of Prince Henry's adventures; well, you might—save that the old traveller is more interesting—almost be reading a book published yesterday. The only radical change made for large quantities of Africans by means of white intercourse was made by exporting them to America. How this is going to turn out we do not yet know; and whether or no, after the present period of white exploitation of Africa,

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The invitations for the second ball had been out for some time and the preparations were nearly complete when Brewster arrived upon the scene of festivity. It did not surprise him that several old-time friends should hunt him up and protest vigorously against the course he


text:
Talk:Abner Fawcett Letter 1828-02-24

Source?
, I realize this requirement was probably not formalized until long after you started this page in 2004, but is there by any chance a publicly available scan of the letter? If not, this page can't meet Wikisource's requirements, and would probably be deleted. I see you haven't edited since 2012, hope you still get this message and can clarify things! -Pete (talk) 01:18, 9 March 2024 (UTC)

title: Talk:Abner Fawcett Letter 1828-02-24


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 there may not come another pause from our becoming too interested in some big fight of our own to keep up our interest in the African, we cannot tell; so I will pass on to a very interesting point in a method of trade mentioned by the early authorities—the silent trade.

Herodotus gives us the first description of it, saying that the Carthaginians state that beyond the Pillars of Hercules there is a region of Libya, and men who inhabit it. When they arrive among these people and have unloaded their merchandise they set it in order on the shore, go on board their ships and make a great smoke, and the inhabitants seeing the smoke come down to the sea shore, deposit gold in exchange for the merchandise, and withdraw to some distance. The Carthaginians then going ashore examine the goods, and if the quantity seems sufficient for the merchandise they take it and sail away; but if it is not sufficient they go on board again and wait; the natives then approach and deposit more gold until they have satisfied them: neither party ever wrongs the other, for they do not touch the gold before it is made adequate to the value of the merchandise, nor do the natives touch the merchandise before the Carthaginians have taken the gold.

The next description of this silent trade I have been able to find is that given by Aluise da Ca da Mostro, a Venetian gentleman who, allured by the accounts of the riches of West Africa given by Prince Henry the Navigator, abandoned trading with the Low Countries, entered the Prince's service, and went down the Coast in 1455. When in the district of Cape Blanco, at a place called by him Hoden, he was told that six days' journey from this place

title: Page:West African Studies.djvu/297


text: Talk:Lives of the Necromancers

title: Talk:Lives of the Necromancers


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 there was a place called Tagazza, signifying a chest of gold; there large quantities of rock salt were dug from the earth every year and carried on camels by the Arabs and the Azanaghi, who were tawny Moors, in separate companies to Timbuk, and from thence to the Empire of Melli, which belonged to the negroes; having arrived there they disposed of their salt in the course of eight days, at the rate of two and three hundred mitigals the load (a mitigal=a ducat), according to the quantity thereof, after which they returned home with the gold they had been paid in. The se merchants reckoned it forty days' journey on horseback from Tagazza to "Timbuk" as Mostro, while from Timbuk to Melli it is thirty days' journey. Ca da Mostro then inquired to what use the salt taken to Melli was put; and they said that the merchants used a certain quantity of it themselves, for on account of their country lying near the Line, where the days and nights are of equal length, at certain seasons of the year the heats were excessive, and putrefied the blood unless salt was taken; their method of taking it was to dissolve a piece in a porringer of water daily and drink it. When the remainder of the salt reached Melli, carried thither on camels, each camel load was broken up into pieces of a suitable size for one man to carry. A large number of what Ca da Mostro calls footmen―whom we nowadays call porters―were assembled at Melli to be ready to carry the salt from thence further away still into the heart of Africa.

I have dwelt on this salt's wanderings because we

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text:
Talk:Lindsay, Glenday, Durfee Summary

Source?
This work also appears to be missing a source to attach for verification/validation. -Pete (talk) 01:24, 9 March 2024 (UTC)

title: Talk:Lindsay, Glenday, Durfee Summary


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 was pursuing. Nor did it surprise him when he found that his presence was not as essential to the success of some other affair as it had once been. He was not greeted as cordially as before, and he grimly wondered how many of his friends would stand true to the end. The uncertainty made him turn more and more often to the unquestioned loyalty of Peggy Gray, and her little library saw him more frequently than for months.

Much as he had dreaded the pretentious and resplendent ball, it was useful to him in one way at least. The "profit" side of his ledger account was enlarged and in that there was room for secret satisfaction. The Viennese orchestra straggled into New York, headed by Elon Gardner, a physical wreck, in time to make a harmonious farewell appearance behind Brewster's palms, which caused his guests to wonder why the American public could not appreciate the real thing. A careful summing up of the expenses and receipts proved that the tour had been a bonanza for Brewster. The net loss was a trifle more than $56,000. When this story became known about town, everybody laughed pityingly, and poor Gardner was almost in tears when he tried to explain the disaster to the man who lost the money. But Monty's


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 sense of humor, singularly enough, did not desert him on this trying occasion.

Æsthetically the ball proved to be the talk of more than one season. Pettingill had justified his desire for authority and made a name which would last. He had taken matters into his own hands while Brewster was in Florida, and changed the period from the Spain of Velasquez to France and Louis Quinze. After the cards were out he remembered, to his consternation, that the favors purchased for the Spanish ball would be entirely inappropriate for the French one. He wired Brewster at once of this misfortune, and was astonished at the nonchalance of his reply. "But then Monty always was a good sort," he thought, with a glow of affection. The new plan was more costly than the old, for it was no simple matter to build a Versailles suite at Sherry's. Pettingill was no imitator, but he created an effect which was superbly in keeping with the period he had chosen. Against it the rich costumes, with their accompaniment of wigs and powdered hair, shone out resplendent. With great difficulty the artist had secured for Monty a costume in white satin and gold brocade, which might once have adorned the person of Louis himself. It


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 have here a very definite description of a trade route, and the importance of understanding these trade routes is very great. We do not learn, however, exactly where the salt goes to beyond Melli; but Melli seems to have been, as Timbuctoo was, and to a certain extent still is, a trade focus; and from Melli evidently the salt went in many directions, and it is interesting to note Ca da Mostro's observations on the salt porters, who he says carry in each hand a long forked stick, which when they are tired they fix into the ground and rest their loads on; so to-day may you see the West African porters doing, save that it is only the porters who have to pass over woodless plateaux on their journeys that carry two sticks.

Speaking however further on the course of this salt trade Ca da Mostro says that some of the merchants of Melli go with it until they come to a certain water, whether fresh or salt his informant could not say; but he holds it most likely was fresh, or there would be no need of carrying salt there; and it is the opinion of the few people who have of late years interested themselves in the matter that this great water is the Niger Joliba. But be this as it may, when those merchants from Melli arrive on the banks of this great water they place their shares of salt in heaps in a row, every one setting a mark on his own. This done, the merchants retire half a day's journey; then "the negroes, who will not be seen or spoken with, and who seem to be the inhabitants of some islands, come in large boats," and having viewed the salt lay a sum of gold on every heap and then retire. When they are all gone the negro merchants who own the salt return, and if the quantity of gold pleases them they take it and leave the salt; if not, they leave both and withdraw themselves again. The silent people then

title: Page:West African Studies.djvu/299


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 made him feel like a popinjay, and it was with infinite relief that he took it off an hour or so after dawn. He knew that things had gone well, that even Mrs. Dan was satisfied; but the whole affair made him heartsick. Behind the compliments lavished upon him he detected a note of irony, which revealed the laughter that went on behind his back. He had not realized how much it would hurt. "For two cents," he thought, "I'd give up the game and be satisfied with what's left." But he reflected that such a course would offer no chance to redeem himself. Once again he took up the challenge and determined to win out. "Then," he thought exultantly, "I'll make them feel this a bit."

He longed for the time when he could take his few friends with him and sail away to the Mediterranean to escape the eyes and tongues of New York. Impatiently he urged Harrison to complete the arrangements, so that they could start at once. But Harrison's face was not untroubled when he made his report. All the preliminary details had been perfected. He had taken the "Flitter" for four months, and it was being overhauled and put into condition for the voyage. It had been Brown's special pride, but at his death it went


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 to heirs who were ready and eager to rent it to the highest bidder. It would not have been easy to find a handsomer yacht in New York waters. A picked crew of fifty men were under command of Captain Abner Perry. The steward was a famous manager and could be relied upon to stock the larder in princely fashion. The boat would be in readiness to sail by the tenth of April.

"I think you are going in too heavily, Monty," protested Harrison, twisting his fingers nervously. "I can't for my life figure how you can get out for less than a fortune, if we do everything you have in mind. Wouldn't it be better to pull up a bit? This looks like sheer madness. You won't have a dollar, Monty—honestly you won't."

"It's not in me to save money, Nopper, but if you can pull out a few dollars for yourself I shall not object."

"You told me that once before, Monty," said Harrison, as he walked to the window. When he resolutely turned back again to Brewster his face was white, but there was a look of determination around the mouth.

"Monty, I've got to give up this job," he said, huskily. Brewster looked up quickly.

"What do you mean, Nopper?"


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 return, and the heaps from which they find the gold has been removed they carry away, and either advance more gold to the other heaps or take their gold from them and leave the salt. In this manner, says Ca da Mostro, from very ancient times these negroes have traded without either speaking to or seeing each other, until a few years before, when he was at Cape Blanco among the Azanaghi, who supply the negroes of Melli with their salt as aforesaid, and who evidently get from them gossip as well as gold. They told him that their fellow merchants among the black Moors had told them that they had had serious trouble in consequence of the then Emperor of Melli, a man who took more general interest in affairs than was common in Emperors of Melli, having been fired with a desire to know why these customers of his traders did not like being seen; he had commanded the salt merchants when they next went to traffic with the silent people to capture some of them for him by digging pits near the salt heaps, concealing themselves therein and then rushing out and seizing some of the strange people when they came to look at the salt heaps. The merchants did not at all relish the royal commission, for they knew, as any born trader would, that it must be extremely bad for trade to rush out and seize customers by the scruff of their necks while they were in the midst of their shopping. However, much as the command added to their commercial anxieties, the thing had to be done, or there was no doubt the Emperor would relieve them both of all commercial anxieties and their heads at one and the same time. So they carried out the royal command, and captured four of their silent customers. Three they immediately liberated, thinking that to keep so many would only increase the bad blood, and one specimen

title: Page:West African Studies.djvu/300


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 "I've got to leave, that's all," said Harrison, standing stiff and straight and looking over Brewster's head.

"Good Lord, Nopper, I can't have that. You must not desert the ship. What's the matter, old chap? You're as white as a ghost. What is it?" Monty was standing now and his hands were on Harrison's shoulders, but before the intensity of his look, his friend's eyes fell helplessly.

"The truth is, Monty, I've taken some of your money and I've lost it. That's the reason I—I can't stay on. I have betrayed your confidence."

"Tell me about it," and Monty was perhaps more uncomfortable than his friend. "I don't understand."

"You believed too much in me, Monty. You see, I thought I was doing you a favor. You were spending so much and getting nothing in return, and I thought I saw a chance to help you out. It went wrong, that's all, and before I could let go of the stock sixty thousand dollars of your money had gone. I can't replace it yet. But God knows I didn't mean to steal."

"It's all right, Nopper. I see that you thought you were helping me. The money's


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 gone and that ends it. Don't take it so hard, old boy."

"I knew you'd act this way, but it doesn't help matters. Some day I may be able to pay back the money I took, and I'm going to work until I do."

Brewster protested that he had no use for the money and begged him to retain the position of trust he had held. But Harrison had too much self-respect to care to be confronted daily with the man he had wronged. Gradually Monty realized that "Nopper" was pursuing the most manly course open to him, and gave up the effort to dissuade him. He insisted upon leaving New York, as there was no opportunity to redeem himself in the metropolis.

"I've made up my mind, Monty, to go out west, up in the mountains perhaps. There's no telling, I may stumble on a gold mine up there—and—well, that seems to be the only chance I have to restore what I have taken from you."

"By Jove, Nopper, I have it!" cried Monty. "If you must go, I'll stake you in the hunt for gold."

In the end "Nopper" consented to follow Brewster's advice, and it was agreed that they


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 would be sufficient to satisfy the Imperial curiosity. Unfortunately however the unfortunate captive they retained would neither speak nor eat, and in a few days died; and so the salt merchants of Melli returned home in very low spirits, feeling assured that their Emperor would be actively displeased with them for failing to satisfy his curiosity, and that the silent customers would be too alarmed and angered with them for their unprovoked attack to deal with them again. Subsequent events proved them to be correct in both surmises: his Majesty was highly disgusted at not having been able to see one of these people; and naturally, for the description given to him of those they had captured was at least highly interesting. The merchants said they were a span taller than themselves and well shaped, but that they made a terrible figure because their under lip was thicker than a man's fist and hung down on their breasts; also that it was very red, and something like blood dropped from it and from their gums. The upper lip was no larger than that of other people, and owing to this there were exposed to view both gums and teeth, which were of great size, particularly the teeth in the corners of the mouth. Their eyes were of great size and blackness. As for the customers, for three years went the merchants of Melli to the banks of the great water and arranged their salt heaps and looked on them for gold dust in vain but the fourth year it was there; and the merchants of Melli believed that their customers' lips had begun to putrefy through the excessive heat and the want of salt, so that being unable to bear so grievous a distemper they were compelled to return to their trade. Things were then established on a fairly reasonable basis; the merchants did not again attempt to see their customers, and they knew

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 should share equally all that resulted from his prospecting tour. Brewster "grub-staked" him for a year, and before the end of the week a new tenderfoot was on his way to the Rocky Mountains.


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 from their experience with their captive that they were by nature dumb; for had there been speech in him, would he not have spoken under the treatment to which he was subjected? And as for the Emperor of Melli he said right out he did not care whether those blacks could speak or no, so long as he had but the profit of their gold.

This gold, I may remark, that was collected at Melli was divided into three parts: the first was sent by the Melli caravans to Kokhia on the caravan route to Syria and Cairo; the other two parts went from Melli to Timbucto, where it was again divided up, some of it going to Toet, and from thence along the coast to Tunis, in Barbary. Some of it went to Hoden, not far from Cape Blanco, and from there to Oran and Hona; thence it went to Fez, Morocco, Azila-Azasi, and Moosa, towns outside the Straits of Gibraltar, whence it went into Europe, through the hands of Italians, and other Christians, who exchanged their merchandise for the wares of the Barbary moors; and the remainder of the gold went down to the West African Coast to the Portuguese at Arguin. This description of the gold route is by Ca da Mostro, and is the first description of West African trade route I have found.

But I must tear myself from the fascination of gold and its trade routes and return to that silent trade. The next person after Ca da Mostro to mention it is Captain Richard Jobson, who in 1620-1621 made a voyage especially to discover "the golden trade," of what he calls Tombâk, which is our last author's Timbuk, by way of the Gambia, then held by many to be a mouth of the Niger.

title: Page:West African Studies.djvu/304


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 Harrison's departure left Brewster in sore straits. It forced him to settle down to the actual management of his own affairs. He was not indolent, but this was not the kind of work he cared to encourage. The private accounts he had kept revealed some appalling facts when he went over them carefully one morning at four o'clock, after an all-night session with the ledger. With infinite pains he had managed to rise to something over $450,000 in six months. But to his original million it had been necessary to add $58,550 which he had realized from Lumber and Fuel and some of his other "unfortunate" operations. At least $40,000 would come to him ultimately through the sale of furniture and other belongings, and then there would be something like $20,000 interest to consider. But luck had aided him in getting rid of his money. The bank failure had cost him $113,468.25, and "Nopper" Harrison had helped him to the extent of $60,000. The reckless but deter-


text: Talk:Sonnet 134 (Petrarch/Wyatt)

title: Talk:Sonnet 134 (Petrarch/Wyatt)


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 mined effort to give a ball had cost $30,000. What he had lost during his illness had been pretty well offset by the unlucky concert tour. The Florida trip, including medical attention, the cottage and living expenses, had entailed the expenditure of $18,500, and his princely dinners and theater parties had footed up $31,000. Taking all the facts into consideration, he felt that he had done rather well as far as he had gone, but the hardest part of the undertaking was yet to come. He was still in possession of an enormous sum, which must disappear before September 23d. About $40,000 had already been expended in the yachting project.

He determined to begin at once a systematic campaign of extinction. It had been his intention before sailing to dispose of many household articles, either by sale or gift. As he did not expect to return to New York before the latter part of August, this would minimize the struggles of the last month. But the prospective "profit" to be acquired from keeping his apartment open was not to be overlooked. He could easily count upon a generous sum for salaries and running expenses. Once on the other side of the Atlantic, he hoped that new opportunities for extravagance would presen


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 themselves, and he fancied he could leave the final settlement of his affairs for the last month. As the day for sailing approached, the world again seemed bright to this most mercenary of spendthrifts.

A farewell consultation with his attorneys proved encouraging, for to them his chances to win the extraordinary contest seemed of the best. He was in high spirits as he left them, exhilarated by the sensation that the world lay before him. In the elevator he encountered Colonel Prentiss Drew. On both sides the meeting was not without its difficulties. The Colonel had been dazed by the inexplicable situation between Monty and his daughter, whose involutions he found hard to understand. Her summary of the effort she had made to effect a reconciliation, after hearing the story of the bank, was rather vague. She had done her utmost, she said, to be nice to him and make him feel that she appreciated his generosity, but he took it in the most disagreeable fashion. Colonel Drew knew that things were somehow wrong; but he was too strongly an American father to interfere in a matter of the affections. It distressed him, for he had a liking for Monty, and Barbara's "society judgments," as he called them, had no weight


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 with him. When he found himself confronted with Brewster in the elevator, the old warmth revived and the old hope that the quarrel might have an end. His greeting was cheery.

"You have not forgotten, Brewster," he said, as they shook hands, "that you have a dollar or two with us?"

"No," said Monty, "not exactly. And I shall be calling upon you for some of it very soon. I'm off on Thursday for a cruise in the Mediterranean."

"I've heard something of it." They had reached the main floor and Colonel Drew had drawn his companion out of the crowd into the rotunda. "The money is at your disposal at any moment. But aren't you setting a pretty lively pace, my boy? You know I've always liked you, and I knew your grandfather rather well. He was a good old chap, Monty, and he would hate to see you make ducks and drakes of his fortune."

There was something in the Colonel's manner that softened Brewster, much as he hated to take a reproof from Barbara's father. Once again he was tempted to tell the truth, but he pulled himself up in time. "It's a funny old world, Colonel," he said; "and sometimes one's nearest friend is a stranger. I know I


text: Talk:The Ballad of the White Horse

title: Talk:The Ballad of the White Horse


text: Talk:The Bear Hunt (Lincoln)

title: Talk:The Bear Hunt (Lincoln)


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36

(and it would cost a good deal of trouble) to compile a volume containing the scientific names of every British plant and animal, with all the local synonyms printed under each.

Some local names are exceedingly curious, and it is somewhat puzzling to find out their derivations. In Cumberland the bistort (Polygonum bistorta) is called by the strange name of Easter man-giants. The only derivation that I can suggest for this appellation,—and I think it is the right one,—is that being sometimes in that country eaten in the spring about Easter-time, the leaves being boiled as a vegetable, the word "mangiant" must be derived from the French manger, "to eat." In Cheshire, the edible qualities of the plant are well known, but it is there called "patient dock," which is rather remarkable, as that name is given in botanical books to a different plant, "Rumex patientia,"—this latter plant being unknown in Cheshire.

In Gloucestershire, the purple orchis has a very ominous name; it is called "bloody man's fingers"—why, I do not know; but the country people have as much horror of it as if there were some terrible foundation for the name. If children gather wild flowers and bring them home, the orchises are carefully sorted out by their mothers and thrown away, lest bloody man's fingers should enter the house.

The local names of birds are quite as varied as those of plants. In Cheshire, the magpie is "piánnet," a rather pretty name; titmice are "tomtits," or "tittimaws," hedge-sparrows are "dunnocks." The starling is called "shepster," the long-tailed titmouse is "churn," the spotted flycatcher is "old man," the peewit is a "happinch," the chaffinch is "piedfinch," the missel thrush is a "sedcock," the yellow-hammer is in Yorkshire called "yellow-yowley," but in Cheshire it is generally known as a "goldfinch," a name which it certainly merits more than the real goldfinch, while the latter bird is frequently called "red linnet," and very often also "knicker-knocker."

If any naturalist should think it worth while to act upon the suggestions thrown out in these notes, and should wish to collect all the local names, I should be very glad to help him as regards Cheshire. R. H.

(N.B.—We are prepared to act as custodian for all local names of Birds and Plants, which will be acknowledged and retained until in sufficient number to construct a summary.—Ed. Sc. G.)

the first number of "Science Gossip," under the head of "Notes and Queries," I observe that one of your correspondents asks the question, "Does the Spider eat its own Web?" Rennie, in his work on "Insect Architecture," states that the poet Bloomfield affirms that it does. But this Rennie seems inclined to regard rather as a fiction of the poet's brain than a well-authenticated fact. Perhaps the strangeness of the fact startled the accomplished naturalist, and led him to doubt the statement of one who from the very nature of his profession is privileged to take a "poet's license" with the materials he works with. Still Rennie ought to have known that "truth is stranger than fiction." Any one who reads the "Farmer's Boy" cannot help being struck with the poet's admirable powers for observing and describing what he saw. Bloomfield was without doubt a born naturalist, whose poetic temperament led him to adopt song rather than prose as the vehicle of his thoughts and observations. Being well acquainted with the poet's productions, I have always entertained a lively faith in the accuracy of his statements, and was led to make the experiment I now record more for the vindication of the poet's character than for the satisfaction of my own mind.

The means for doing so were simple enough, and they were at hand. In a small garden, some 12 feet by 10, situated at the back of the house, a colony of garden spiders (Epeira diadema) had established themselves, and spread a perfect network of webs amongst my choicest chrysanthemums. I took great interest in watching the habits of these sagacious little creatures, and would not allow them to be disturbed although they did restrict my peregrinations by weaving their nets across the gravel path, and retarded the development of my flowers by encasing their buds in silken network. The instruction they afforded me more than counterbalanced the inconvenience they caused, so they were allowed the remain without molestation to increase and multiply in accordance with their natural instincts.

My first step in the experiment was to provide myself with a pair of sharp scissors, and my next to select one of the largest and most perfect specimens of a geometric web my garden contained. At that moment the little architect, contrary to custom, happened to be in the centre of his domains, looking much like an Alexander Selkirk—

After a leisure survey, taken with the object of discovering the principal lines on which the web was supported, I rapidly cut them asunder with my scissors. The web instantly collapsed, and would have fallen to the ground but for one point of support which I had intentionally left untouched. From this point, hung dangling, like tangled threads, all that remained of this once beautiful structure. Stunned by the suddenness of the catastrophe, the spider for a moment remained motionless, but quickly collecting his scattered senses, he nimbly disengaged himself from the wreck, and plying his busy feet with the manipulative skill of as many hands rapidly rolled up the fragments of his web into a round ball the size of a small pea. This he held firmly between his mandibles, and courting retirement attached himself by his spinnarets to the underside of a leaf. I now seated myself in a convenient position from whence I could observe every movement of the little creature without being observed in turn, and I had moreover provided myself with an excellent had moreover provided myself with an excellent Coddington lens of low magnifying power. My first peep at my small friend convinced me (notwithstanding what Rennie had said) that he evidently contemplated the feat of eating his own web. If this were not his intention, why should he be so busily engaged, under the shadow of his retreat, with feet and jaws endeavouring to bring the ravelled threads of his net into a more compact and commodious form? And why, when the dry loose materials resisted all his attempts at compression, did he saturate them with a glutinous fluid, which I observed repeatedly exude from his mouth, causing them to adhere more closely to one another? And why should he take the trouble to knead them together and fashion them into a shape


text: Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs


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 Chanler felt an actual terror of the unknown world that surrounded them with its measureless antiquity.

They quickened their paces. The wide pavement that bordered the canal was seemingly deserted; and the light, railless bridge itself was guarded only by the ten colossal statues of Martian heroes that loomed in war-like attitudes before the beginning of the first aerial span.

The Earthmen were somewhat startled when a living figure, little less gigantic than the carven images, detached itself from their deepening shadows and came forward with mighty strides.

The figure, nearly ten feet in height, was taller by a full yard than the average Aihai, but presented the familiar conformation of massively bulging chest and bony, many-angled limbs. The head was featured with high-flaring ears and pit-like nostrils that narrowed and expanded visibly in the twilight. The eyes were sunken in profound orbits, and were wholly invisible, save for tiny reddish sparks that appeared to burn suspended in the sockets of a skull. According to native custom, this bizarre personage was altogether nude; but a kind of circlet around the neck—a flat wire of curiously beaten silver—indicated that he was the servant of some noble lord.

and Chanler were astounded, for they had never before seen a Martian of such prodigious stature. The apparition, it was plain, desired to intercept them. He paused before them on the pavement of blockless marble. They were even more amazed by the weirdly booming voice, reverberant as that of some enormous frog, with which he began to address them. In spite of the interminably guttural tones, the heavy slurring of certain vowels and consonants, they realized that the words were those of human language.

"My master summons you," bellowed the colossus. "Your plight is known to him. He will help you liberally, in return for a certain assistance which you can render him. Come with me."

"This sounds peremptory," murmured Haines. "Shall we go? Probably it's some charitable Aihai prince, who has gotten wind of our reduced circumstances. Wonder what the game is?"

"I suggest that we follow the guide," said Chanler, eagerly. "His proposition sounds like the first chapter of a thriller."

"All right,” said Haines, to the towering giant. "Lead us to your master."

With strides that were moderated to match those of the Earthmen, the colossus led them away from the hero-guarded bridge and into the greenish-purple gloom that had inundated Ignar-Vath. Beyond the pavement, an alley yawned like a high-mounted cavern between lightless mansions and warehouses whose broad balconies and jutting roofs were almost conterminous in midair. The alley was deserted; and the Aihai moved like an overgrown shadow through the dusk and paused shadow-like in a deep and lofty doorway. Halting at his heels, Chanler and Haines were aware of a shrill metallic stridor, made by the opening of the door, which, like all Martian doors, was drawn upward in the manner of a mediæval portcullis. Their guide was silhouetted on the saffron light that poured from bosses of radio-active mineral set in the walls and roof of a circular antechamber. He preceded them, according to custom; and following, they saw that the room was unoccupied. The door descended behind them without apparent agency or manipulation.

To Chanler, gazing about the windowless chamber, there came the indefinable alarm that is sometimes felt in a closed space. Under the circumstances, there seemed to be no reason to apprehend dan-


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Tales from Tolstoi out at work, and another at home. Elisyei was a good-humoured, cheerful man. He drank vodka and took snuff, and loved to sing songs; but he was a man of peace, and lived amicably with those at home, and with his neighbours. In person Elisyei was a somewhat short muzhik, somewhat dark, with a curly beard and a bald head.

The old men had for a long time decided and agreed to go together, but Tarasuich could never find time, his affairs stood in the way. When one was finished, another turned up; at one time he had to get his grandson married, at another time he had to await the return of his youngest son from the wars, and at another he had undertaken the building of a new hut.

One day the old men met together on a festival, and sat down on a bench.

"Well," said Elisyei, "when, gossip, shall we go and fulfil our vow?"

Efim began wrinkling his brow. "We must wait," said he; "this year has turned out a hard one for me. I shall have to build up this hut of mine. I had thought to have laid by a hundred roubles, and have only a third of that. That is not enough. 'Tis plain we must postpone it till the spring. In a year, if God lets us live to see another, we will go without fail."

"In my opinion," said Elisyei, tis no good putting off, we should go now. It is the very time—spring."

"The time may be the right time, but business is business, one cannot neglect it."

"Hast thou, then, none of thine own people by thee? Cannot thy son see to thy business?" 164


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Rh "How can he do it? My eldest I can't depend upon—he's no good."

"Bear with him, gossip! He will manage to live without our help. One must teach one's son a little."

"No doubt, but everyone likes to see to one's own affairs one's self."

"Ah, but my dear man, thou wilt never be able to superintend everything. Look now! A few days ago the women with us were washing and making ready against the feast. And this was wanted and that was wanted, and there was so much to do that they did not know where to buckle to first. Now my eldest daughter is a canny body, and she said, 'Thanks for nothing,' said she, 'the festival is coming on, and it won't wait for you, and work as you will you won't get through all your work.

Tarasuich fell a-thinking. "I shall spend a bit of money on this building," said he, "and I must not go on this trip empty-handed either. 'Tis a good bit of money—a hundred roubles."

Elisyei laughed. "Sin not, gossip," said he. "Thy means are tenfold more than mine. And thou talkest about money! Say, when shall we be off? I have nothing, and yet I'll find some."

Even Tarasuich smiled at this. "Now thou revealest thyself, thou man of wealth!" said he. "Whence then wilt thou draw thy money?"

"Oh, I'll scrape together something at home, and if that doesn't suffice I'll sell ten of my prize bee-hives to my neighbour, he has been bidding for them for a long time." 165


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Tales from Tolstoi "The bee-swarms will be good this year; thou wilt repent it."

"Repent it! Nay, gossip, in this life I repent of nothing but my sins. There is nothing dearer than one's soul."

"That's right enough, but for all that disorder at home is no good thing."

"But if there be disorder in our souls, that is worse. But we have vowed—we must go; it is only right to go."

And Elisyei persuaded his comrade.

Efim turned the matter over and over in his mind, and in the morning he went to Elisyei.

"Come, let us go," said he, "thou art right. God's will be done in life and death. We ought to go while we are strong and hale."

In a week the old men got them ready.

Tarasuich had money at home. He took 190 roubles (£19) for his journey, and left 200 roubles (£20) with his old woman. Elisyei also got ready. He sold his neighbour ten prize bee-hives, with all the swarms that they might produce, and got 70 roubles (£7) for the lot. The remaining 30 roubles (£3) he scraped together at home by hook and by crook; his old woman gave up her savings, which she had saved up against her burial, to the last penny, and his daughter-in-law gave him her savings also.

Efim Tarasuich gave his eldest son directions as 166


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 the Scripture Meaning, who undertood by it Candour, or the forming of a benevolent Opinion of our Brethren, and paing a favourable Judgment on their Actions; a Virtue much higher, and more extenive in its Nature, than a pitiful Ditribution of Alms, which, though we would never o much prejudice, or even ruin our Families, could never reach many; whereas Charity, in the other and truer Sene, might be extended to all Mankind.’

He aid, ‘Conidering who the Diciples were, it would be aburd to conceive the Doctrine of Generoity, or giving Alms, to have been preached to them. And, as we could not well imagine this Doctrine hould be preached by its divine Author to Men who could not practie it, much les hall we think it undertood o by thoe who can practie it, and do not.

‘But though, continued he, there is, I am afraid, little Merit in thee Benefactions; there would, I mut confes, be much Pleaure in them to a good Mind, if it was not abated by one Conideration. I mean, that we are liable to be impoed upon, and to confer our choicet Favours‘


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 often on the Undeerving, as you mut own was your Cae in your Bounty to that worthles Fellow Partridge: For two or three uch Examples mut greatly leen the inward Satisfaction, which a good Man would otherwie find in Generoity; nay, may even make him timorous in betowing, let he hould be guilty of upporting Vice, and encouraging the Wicked; a Crime of a very black Dye, and for which it will by no means be a ufficient Excue, that we have not actually intended uch an Encouragement; unles we have ued the utmot Caution in chuing the Objects of our Beneficence. A Conideration which, I make no Doubt, hath greatly checked the Liberality of many a worthy and pious Man.’

Mr. Allworthy anwered, ‘He could not dipute with the Captain in the Greek Language, and therefore could ay nothing as to the true Sene of the Word, which is tranlated Charity; but that he had always thought it was interpreted to conit in Action, and that giving Alms contituted at leat one Branch of that Virtue.’


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 ‘As to the meritorious Part, he aid, he readily agreed with the Captain; for where could be the Merit of barely dicharging a Duty; which he aid, let the Word Charity have what Contruction it would, it ufficiently appeared to be from the whole Tenure of the New Tetament. And as he thought it an indipenfable Duty, enjoined both by the Chritian Law, and by the Law of Nature itelf; o was it withal o pleaant, that if any Duty could be aid to be its own Reward, or to pay us while we were dicharging it, it was this.

‘To confes the Truth, aid he, there is one Degree of Generoity, (of Charity I would have called it) which eems to have ome Shew of Merit, and that is, where from a Principle of Benevolence, and Chritian Love, we betow on another what we really want ourelves; where, in order to leen the Ditrees of another, we condecend to hare ome Part of them by giving what even our own Neceities cannot well pare. This is, I think, meritorious; but to relieve our Brethren only with our Superfluities; to be charitable (I mut ue the Word) rather at the Expence of our


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300 reduction of free peasants as far down as they went towards serfdom, and we know that it was not their own energy of resistance which kept them from going lower. Furthermore, all over Europe among the peasant-tillers of the soil, while they were free yeomen (if they ever were so), there were slaves. These were owned by the freeholders. But if the yeomen were themselves slaveholders, their society is excluded from my proposition, for the society does not then consist of free and equal tillers of the soil alone.

I wish to bring into connection with this another fact which may seem at first to lie far removed from it. In stages of half-civilization where tillage is just beginning we find that the tillers are ruled by warlike nomads. This relation has been found all over the globe; especially where the tillers occupy a fertile plain below steppes or mountain slopes, the latter are inhabited by wild and wandering tribes which periodically descend into the plains to rob and plunder or levy tribute. A large part of Africa has long presented this state of things. It is evident that the settled tillers unlearn the arts of war, for they want peace, order, regularity. They must spend great labor on permanent works of construction and irrigation which are, however, at the mercy of an invader. The nomads are warlike and have greater physical power; they either make periodical raids or they compromise for a regular tribute. Great states have grown in the course of time out of this latter relation, the ruling nomads becoming the nobles and the tillers the peasantry or serfs. The first of these stages shows us militarism and industrialism in conflict; the second shows us the two combined and adjusted in a great state. This antagonism of militarism and industrialism is the most


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Rh important thread of philosophy which can be run through history.

Here, then, is a startling phenomenon and a problem for the sociologist to elucidate. Does the tiller of the soil gravitate to servitude by some inherent necessity? There are no peasant-proprietors now in Europe who are not maintained by arbitrary operation of law. Whole schools of social philosophy have taken up the notion that peasant-proprietors are fine things to have and that they must be got or produced at any price in the old countries. It is not my intention now to discuss the problem thus raised, but I hasten to bring what I have said to bear on the subject before us. We see why it is interesting and important to ask whether the American colonies do present an exceptional case of what we are looking for, viz., a society consisting exclusively of free and equal tillers of the soil. To this the answer is that they do not. They used slaves; the great need of an organization of labor by which combined effort could be brought to bear was what caused the introduction of slavery. We have positive testimony from the colonial period that the practical reason for slavery was that without it laborers could not be induced to go and stay where the work was to be done, especially in remote districts. Slavery, of course, became developed and established more and more to the southward, as those districts were reached whose products — tobacco, rice, and indigo — could be cultivated only on a large scale by a great organization of labor, many laborers being combined under one overseer. In the northern states, when slavery was abolished, towns had grown up, professional classes had begun to be formed, artisans and merchants constituted distinct classes, and the whole social organization had become


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302 so complex that the simple society consisting exclusively of tillers of the soil was not to be sought there. It is true that our new states have, within a hundred years, come nearer to presenting us that phenomenon than any other communities ever have; but then again it is to be remembered that they are parts in a world-wide organization of industry and commerce and are not any longer distinct communities.

In the course of my remarks on the last point, I have touched upon the case of slavery in the South. It has often been said that slavery in the South was an aristocratic institution. Aristocratic and democratic are indeed currently used as distinctly antagonistic to each other, but whether they are so or not depends upon the sense in which each of them is taken, for they are words of very shifting and uncertain definition. It is aristocratic to measure men and scale off their social relations by birth; it is democratic to deny the validity of such distinctions and to weigh men by their merits and achievements without regard to other standards. In this sense, however, democracy will not have anything to do with equality, for if you measure men by what they are and do, you will find them anything but equal. This form of democracy, therefore, is equivalent to aristocracy in the next sense. For, second, aristocracy means inequality and the social and political superiority of some to others, while democracy means social and political equality in value and power. But no man ever yet asserted that "all men are equal," meaning what he said. Although he said, "all men," he had in mind some limitation of the group he was talking about. Thus, if you had asked Thomas Jefferson, when he was writing the first paragraph of the Declaration of Independence, whether in "all men" he meant


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 Coffers than ourelves; to ave everal Families from Miery rather than hang up an extraordinary Picture in our Houes, or gratify any other idle, ridiculous Vanity, this eems to be only being Chritians, nay indeed, only being human Creatures. Nay, I will venture to go farther, it is being in ome degree Epicures: For what could the greatet Epicure wih rather than to eat with many Mouths intead of one; which I think may be predicated of any one who knows that the Bread of many is owing to his own Largees.

‘As to the Apprehenion of betowing Bounty on uch as may hereafter prove unworthy Objects, becaue many have proved uch; urely it can never deter a good Man from Generoity: I do not think a few or many Examples of Ingratitude can jutify a Man’s hardening his Heart againt the Ditrees of his Fellow-Creatures; nor do I believe it can ever have uch Effect on a truly benevolent Mind. Nothing les than a Peruaion of univeral Depravity can lock up the Charity of a good Man; and this Peruaion mut lead him, I think, either into Atheim, or Enthuiam; but urely


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Lauchli v. United States/Dissent Douglas

MR. JUSTICE DOUGLAS, dissenting.

Petitioner brought this civil rights lawsuit pursuant to 42 U.S.C. § 1985 to recover damages from agents of the Alcohol, Tobacco, and Firearms Division of the Treasury Department. He alleged that they had conducted [p966] unlawful searches of his property beyond the scope of their warrants. Both lower courts denied the petitioner, a pauper, permission to proceed in forma pauperis. The terse orders simply stated that the unlawful search issue was frivolous. Yet there is no doubt that a civil rights damages action is appropriate where federal agents ransack one's premises without authority. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The Solicitor General, however, contends that the order of the Court of Appeals was nonetheless correct because the agents' searches had already been validated in the previous and finalized criminal proceeding.

This action, brought to vindicate deprivations of Fourth Amendment privileges, is akin to that of the remedy of federal habeas corpus. The latter relief is not barred merely because the grounds relied on have been rejected on direct review of the conviction. Inasmuch as both 42 [p967] U.S.C. § 1985 and federal habeas corpus are designed to make whole those who have been injured, either through loss of liberty or property, by unconstitutional conduct, it is unclear why collateral estoppel should apply against a prisoner in a civil rights action but not in his habeas action on the same issue. If Lauchli is subsequently freed on habeas on the very claim tendered here, will his civil rights action still be barred?

The Solicitor General says that the validity of petitioner's arrest and the searches of his premises, now challenged in this civil action, was "fully litigated and upheld in the criminal proceedings." That is partially true but not completely so. In the criminal case the motion to suppress the evidence was heard only by the court and it ruled on the question whether there was "probable cause" for the searches. But the issues tendered in this civil rights case will be for a jury to resolve. Is Lauchli barred from a jury trial on his civil rights suit merely because in the prior criminal case a judge ruled there was "probable cause" for the search?

These are important questions upon which we should have briefs and arguments.

The issue assumes added importance in light of the Government's current position that collateral estoppel does not bar it from re-prosecuting a defendant in a forfeiture lawsuit for the same alleged course of conduct for which he had previously been acquitted. In No. 71-672, United States v. Two Hundred and One 50-pound Bags of Furazolidone, the Solicitor General has petitioned this Court to reverse a Court of Appeals' determination that a prior acquittal of a defendant charged with smuggling animal feed in violation of 18 U.S.C. § 545 is a bar to a subsequent in rem forfeiture action [p968] brought by the Government against the feed on grounds that it was imported in violation of the same section.

The forfeiture case is not distinguishable from this case on the theory that the forfeiture action is "civil" and requires a lesser standard of proof. We have long held that "proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal." Boyd v. United States, 116 U.S. 616, 634 (1886). In United States v. U.S. Coin & Currency, 401 U.S. 715, 718 (1971), we found "no difference between a man who 'forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a 'criminal fine' of $8,674 as a result of the same course of conduct."

May the Government have its cake and eat it too? May it (a) maintain that res judicata does not defeat forfeiture actions which are brought subsequent to acquittals and which are based on the same course of conduct, yet (b) plead collateral estoppel to a prisoner's attempts to recover damages for allegedly unconstitutional searches previously sustained on direct review of his conviction?

I would grant the petition for certiorari or at the very least hold it for our disposition of No. 71-672.


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Rh to include negroes, he would have said that he was not talking about negroes. Ask anybody who says it now whether he means to include foreigners — Russian Jews, Hungarians, Italians — and he will draw his line somewhere. The law of the United States draws it at Chinamen. If you should meet with a man who should say, as I would, although I do not believe that all men are equal in any sense, that such laws are unjust and that all men ought to have an equal chance to do the best they can for themselves on earth, then you might ask him whether he thought that Bushmen, Hottentots, or Australians were equal to the best-educated and most cultivated white men. He would have to admit that he was not thinking of them at all. Now, if we draw any line at all, the dogma is ruined. If you say: "All men are equal except some who are not," you must admit tests and standards and you are like the aristocrats, only that they may have other standards than yours and may draw the line around a smaller group. Furthermore if you define a group and then say that all are equal within it, that is pure aristocracy; all peers are equal — that is what their name denotes. School-boys learn from their Greek books enthusiasm for Greek democracy, but in the height of Athenian glory there were four slaves for every Athenian freeman and "democracy" meant the equality of these latter in exploiting the emoluments of the Athenian state. This brings us to the case of our Southern slaveholders. It was not a paradox that the great Virginians were slaveholders and great democrats too; the paradox is in the use of the words, for we see that the terms dissolve into each other. Before you know which you are talking about, it is the other. The Southern democrats drew their line between white and black, but they


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304 affirmed the equality of all whites, that is, of all who were in the ring. This made them great popular leaders — of whites. If we should repeal our naturalization laws, admit no more immigrants to citizenship, restricting political power to those now here and letting them and their descendants possess it by universal manhood suffrage, we should create a democratic-aristocracy in a generation or two. Hence it is dear that a democratic-aristocracy is not a contradiction in terms.

So far then, we see, I think, that democracy in the sense of political equality for the members of the ruling race was produced in the colonies out of the necessities and circumstances of the case. No convention ever decreed it or chose it. It existed in the sense of social equality long before it was recognized and employed as a guiding principle in institutions and laws; its strength in the latter is due to the fact that it is rooted and grounded in economic facts. The current popular notion that we have democratic institutions because the men of the eighteenth century were wise enough to choose and create them is entirely erroneous. We have not made America; America has made us. There is, indeed, a constant reaction between the environment and the ideas of the people; the ideas turn into dogmas and pet notions, which in their turn are applied to the environment. What effect they have, however, except to produce confusion, error, mischief, and loss is a very serious question. The current of our age has been entirely in favor of the notion that a convention to amend the Constitution can make any kind of a state or society which we may choose as an ideal. That is a great delusion, but it is one of the leading social faiths of the present time.

I turned aside from the second sense of aristocracy


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 it is unfair to argue uch univeral Depravity from a few vicious Individuals; nor was this, I believe, ever done by a Man, who upon earching his own Mind found one certain Exception to the general Rule. He then concluded by aking who that Partridge was whom he had called a worthles Fellow.’

‘I mean, aid the Captain, Partridge, the Barber, the Schoolmater, what do you call him? Partridge, the Father of the thethe [sic] little Child which you found in your Bed.’

Mr. Allworthy expret great Surprie at this Account, and the Captain as great at his Ignorance of it: For he aid, he had known it above a Month, and at length recollected with much Difficulty that he was told it by Mrs. Wilkins.

Upon this, Wilkins was immediately ummoned, who having confirmed what the Captain had aid, was by Mr. Allworthy, by and with the Captain’s Advice, dipatched to Little Baddington to inform herelf of the Truth of the Fact: For the Captain expret great Dilike at all haty Procecedings in criminal Matters, and aid he


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318 welfare liberty and discipline need to be duly combined. In fact, the colonists, after two or three generations, threw off the puritanical restraints only too much.

Liberty had its cause and its enduring guarantee in the circumstances of the case. If a man lives alone in the middle of a farm of one hundred acres, what he does there will make little difference to his neighbors, each living in the same way. But if he and his family live in a tenement house, with a score of other families, separated only by thin partitions and floors, everything that he does or neglects will make a great difference to others. Therefore there are few laws made by the community as to how a man shall behave on a farm, whereas there are strict regulations by the state, the city, and the landlord as to how people shall behave in tenement houses. The latter regulations are no proof of meddlesomeness and officialism — they are a necessity of the case. On the other hand, the "liberty" of colonial farmers was no choice of theirs, no creation of law, no proof of clearer wisdom than that of Old-World statesmen — it was a necessity of the case.

In one respect, indeed, the townsmen of a colony lacked liberty — for in no case and in no sense can you find absolute liberty on this earth; that is an anarchistic dream. The public opinion of a town was an impervious mistress; Mrs. Grundy held powerful sway and Gossip was her prime minister. This accounts for the remarkable subserviency, in the early days of this country, of public men to popularity. Unpopularity in a town or petty neighborhood where everybody knows everybody else intimately is an extreme social penalty; it reaches a man through his wife and children and it affects him in all his important interests and relations. It was a powerful coercive force here


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Rh not elect good ones we have no one to blame but ourselves. This is the only conception of responsibility which the system seems to admit, and the consequence of the political education which it gives is that people scarcely seem to understand what the notion of responsibility in government is.

I have not made this analysis and exposition of democracy with the idea that any amount of criticism could overthrow democracy or lead to the abandonment of it; on the contrary, when I see that institutions are rooted in the character of the people and in the circumstances of the country, I take them as they are. There is no fighting against them, if any one wanted to do it. Democracy has grown here, as I have especially attempted to show, because every condition favored it; we never could have had anything else; we cannot have, for a long time to come, any government in which the democratic element does not preponderate. Neither can I see that any other form of institutions, in spite of all the faults of democracy, would be, on the whole, so well adapted for us in our present circumstances. We are forty millions of people who, a little while ago, had nothing; and in the countries from which we came we had little chance of ever getting anything. They tell us that we have only a material civilization and that we appreciate nothing but the dollar. In the main the charge is true, but we are yet busy in accumulating the material capital which is the first condition of civilization and material greatness — we are laying the foundations of a great nation, and if we are laying them in the mud, that is where all foundations have to rest. Those who have accumulated capital complain, with great justice, that the democratic system throws on them exceptional burdens while