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 Contents

Telephone Records: The Contempt Power 435

The 2013 Associated Press Kinds of Contempt 436
Controversy 429 Contempt and the Press 436
Newsroom Searches 430 Collateral Bar Rule 437
How to Respond to a Subpoena 433 SUMMARY 438
SUMMARY 434 Bibliography 438

11 Free Press–Fair Trial: Trial-Level Remedies

and Restrictive Orders 441
Prejudicial Crime Reporting 442 Restrictive Orders to Control
Impact on Jurors 444 Publicity 454
The Law and Prejudicial News 446 Restrictive Orders Aimed
SUMMARY 448 at the Press 456
Traditional Judicial Remedies 448 Restrictive Orders Aimed at
Voir Dire 449 Trial Participants 460
Change of Venue 450 Contact with Jurors 463
Continuance 452 SUMMARY 465
Admonition to the Jury 452
Bibliography 466
Sequestration of the Jury 453
SUMMARY 454

12 Free Press–Fair Trial: Closed Judicial Proceedings 467

Closed Proceedings and Access and the Broadcast Journalist 488
Sealed Documents 467 Access to Evidence 488
Open Courts and the Constitution 468 Recording and Televising
Open and Closed Trials 471 Judicial Proceedings 490
Suspected Terrorists, Enemy SUMMARY 494
Combatants, Et Al. 476 Bench-Bar-Press Guidelines 494
SUMMARY 477 SUMMARY 496
Closure of Other Hearings 477 Bibliography 496
Accessible and Inaccessible
Documents 481

13 Regulation of Obscene and Other Erotic Material 497

The Law of Obscenity 498 Patent Offensiveness 506
Early Obscenity Law 501 Serious Value 506
Defining Obscenity 501 Other Standards 507
SUMMARY 502 Variable Obscenity 507
Contemporary Obscenity Child Pornography 509
Law 503 Children as Child Pornographers
The Miller Test 503 and Sexting 514
An Average Person 503 Obscenity and Women 514
SUMMARY 515
Community Standards 504

vii
Contents

Controlling Obscenity 515 Erotic Materials in Cyberspace 526

Postal Censorship 517 The Communications Decency Act 526
Film Censorship 518 The Child Online Protection Act 527
SUMMARY 519 The Children’s Internet Protection
Regulation of Nonobscene Act 528
Erotic Material 519 Current Issues Online: The New
Sexually Oriented Businesses 519 “Dot XXX” Domain 530
SUMMARY 530
Attacks on the Arts and Popular
Culture 524 Bibliography 530

14 Copyright 533
Immaterial Property Law 534 Copyright Protection and
Patents 535 Infringement 568
Trademarks 535 Copyright Notice 569
Plagiarism 540 Registration 570
Roots of the Law 542 Infringement 570
What May Be Copyrighted 543 Originality of the Plaintiff’s Work 571
Copyright and Facts 548 Access 572
Telephone Books and Databases 548 Copying and Substantial Similarity 572
News Events 549 Copyright Infringement and
Research Findings and History 549 the Internet 575
Misappropriation 551 Digital Millennium Copyright Act 576
Duration of Copyright Protection 553 File Sharing 577
SUMMARY 554 Film and Television 578
Politics and Copyright 579
Fair Use 554 SUMMARY 581
Purpose and Character of Use 556
Nature of the Copyrighted Work 560 Freelancing and Copyright 581
The Portion or Percentage Damages 582
of a Work Used 562
Bibliography 583
Effect of Use on Market 564
Application of the Criteria 566
SUMMARY 568

15 Regulation of Advertising 585

Advertising and the First Federal Regulation 600
Amendment 586 Telemarketing 603
Commercial Speech Doctrine 587 Regulating Junk E-Mail and Spam 605
Compelled Advertising Subsidies SUMMARY 608
and Government Speech 593 Federal Trade Commission 608
SUMMARY 594 False Advertising Defined 610
The Regulation of Advertising 594 Means to Police Deceptive
Self-Regulation 594 Advertising 613
Lawsuits by Competitors Guides and the Children’s Online
and Consumers 595 Privacy Protection Act 614
State and Local Laws 599 Voluntary Compliance 616

viii
 Contents

Consent Agreement 617 Special Cases of Deceptive

Litigated Order 618 Advertising 625
Substantiation 619 Testimonials 625
Corrective Advertising 619 Bait-and-Switch Advertising 627
Injunctions 620 Defenses 628
Trade Regulation Rules 622 Advertising Agency/Publisher
SUMMARY 623 Liability 628
The Regulatory Process 624 SUMMARY 630
Procedures 624 Bibliography 630

16 Telecommunications Regulation 633

A Prologue to the Present 634 Regulation of Political
History of Regulation 634 Programming 665
The Changing Philosophy Candidate Access Rule 666
of Broadcast Regulation 636 Equal Opportunity/Equal
The Prometheus Decision Time Rule 666
and Continuing Fallout 638 Use of the Airwaves 667
SUMMARY 640 Legally Qualified Candidates 669
SUMMARY 671
Basic Broadcast Regulation 640
Federal Communications News and Public Affairs 671
Commission 640 Video News Releases, Sponsorship
Powers 642 Identification and the FCC 672
Censorship Powers 644 The First Amendment 674
SUMMARY 675
Licensing 644
Multiple Ownership Rules 646 Regulation of New Technology 675
License Renewal 648 Satellite Radio 676
The Public’s Role and Internet and Broadband 677
Online Public Inspection Files 650 Cable Television 679
SUMMARY 650 Federal Legislation Regulating
Regulation of Program Cable Television 679
Purpose of the Law 680
Content 651
Jurisdiction and Franchises 680
Sanctions 651
Must-Carry Rules 681
Regulation of Children’s
Programming and Freedom
Programming 652
of Expression 683
Obscene, Indecent and Profane SUMMARY 685
Material 653
Violence on Television 664 Bibliography 685
SUMMARY 664

Glossary 688
Index 695

ix
 PREFACE

As the authors write this preface during the early fall of 2013, there is new movement in
Washington, D.C., to finally pass a federal shield law that would provide qualified protection for
journalists from revealing their confidential sources and information in federal court proceedings
(see Chapter 10 regarding shield laws). Known as the Free Flow of Information Act of 2013 and
sponsored by a bi-partisan group of U.S. Senators, the bill also would codify as law the Depart-
ment of Justice’s recently revised policies on the surveillance, search and seizure of the records
and activities of members of the news media. The revised guidelines were released in July 2013
by U.S. Attorney General Eric Holder, just two months after it was revealed that the Justice
Department had secretly seized the phone records of multiple Associated Press reporters for sev-
eral months in 2012 and seized the e-mails of Fox News reporter James Rosen. The records were
taken by the government in both instances to determine who was leaking classified information
to journalists. Many members of the news media, however, saw the tactic as a grievous and egre-
gious intrusion into press freedom. These controversies are discussed in Chapter 10 of this new
edition. Ultimately, they illustrate that the tension between the government and a free press in
the United States remains high more than 220 years after the adoption of the First Amendment
in 1791. Today, in brief, is a propitious and important time to be studying media law.
The 19th edition of the textbook is replete with updated information in every chapter,
as new cases, controversies and statutes affecting media law arise on an almost daily basis.
Among the new judicial rulings covered in this edition are three issued by the U.S. Supreme
Court in 2012 and 2013:
• United States v. Alvarez, in which the Court declared unconstitutional part of the
Stolen Valor Act that made it a crime to lie about having won a military medal of
honor. This case, which is discussed in detail in Chapter 2, illustrates many important
principles about both First Amendment and media law.
• McBurney v. Young, in which the Court faced the question of whether one state may
preclude citizens of other states from enjoying the same rights of access to public
records that the one state affords its own citizens. This case is addressed in Chapter 9.
• Federal Communications Commission v. Fox Television Stations, a high court
ruling affecting the FCC’s regulation of broadcast indecency and, in particular, its
targeting of so-called fleeting expletives. This case, which is covered in Chapter 16,
has far reaching implications, as the FCC was busy considering revamping its entire
indecency enforcement regime and rules in fall 2013. Expect much more in this area
from the FCC in 2014 and 2015.
This edition of the book eliminates from Chapter 3 a unit previously devoted to prior
restraint and censorship during wartime. With U.S. military involvement winding down in
both Iraq and Afghanistan, and with an eye toward comments from reviewers and keeping the
size of the book manageable, the authors decided to cut this material.

x
 Preface

The authors thank several individuals for their support. Clay Calvert thanks his undergrad-
uates at the University of Florida for making mass communications law an awesome teaching
experience. He also expresses gratitude to the multiple UF students who helped to read, review
and edit new content for this edition of the textbook; their feedback and advice was invaluable.
Clay Calvert furthermore appreciates Berl Brechner for continued support of his research and
writing endeavors. Last but certainly not least, Clay Calvert thanks Don R. Pember for having
him aboard the journey that is writing and assembling a timely and comprehensive book on mass
media law. For the record, Clay Calvert worked on Chapters 1, 2, 3, 7, 8, 9, 10, 13, 15 and 16
for this edition, while Don R. Pember took on Chapters 4, 5, 6, 11, 12 and 14.
This is the last time you will see Don Pember’s name on this book. After 19 editions
and nearly 40 years it is time for me to pack it in. I am certain Clay Calvert will continue to
do admirable work so the book will continue to stay alive. Many aspects of mass media law
have changed during the past four decades, but more have stayed the same. The growth of the
Internet has forced the most significant changes in the law, but the courts and legislatures have
been adapting.
I want to use my portion of this preface to thank some people. I am very grateful to Clay
Calvert for his work on the last six editions. After writing the book alone for about 25 years,
his insights and enthusiasm were invaluable. I am also grateful to all the instructors who, over
the years, chose to adopt this text for their classes. Support from peers is always appreciated.
But there are several people who helped me as a journalist and journalism teacher that I want
to especially thank.
Thanks goes to Lee Peel, who in 1955 introduced a high school junior to journalism.
And to Bud Meyers and George Hough III who helped this same young fellow get through his
undergraduate and early graduate studies at the Michigan State University School of Journal-
ism. Thanks also to Ben Kuroki, a feisty newspaper publisher who taught me what a news-
paper was supposed to do. And to Bill Hachten and Dwight Teeter who guided me through
my doctoral studies at the University of Wisconsin School of Journalism. I am grateful that
Henry Ladd Smith and Bill Ames were around when I got to the University of Washington to
teach me how to be a journalism teacher. And finally, and most importantly, I want to thank
my wife, Diann, for helping me get through the past 50 years of my life. Couldn’t have made
it without her.

IMPORTANT NEW, EXPANDED OR UPDATED MATERIAL

• New examples of equity law, including restraining orders in 2013 affecting the
Lifetime broadcast of the movie “Romeo Killer” and Gawker’s posting of a Hulk
Hogan sex tape and a porn parody of “50 Shades of Grey,” pages 8–9
• New content on the U.S. Supreme Court’s 2012 decision in FCC v. Fox Television
Stations, Inc. regarding the void for vagueness doctrine, page 12
• New content on the U.S. Supreme Court’s 2012 decision in United States v. Alvarez
involving the Stolen Valor Act and regarding plurality opinions and the limited First
Amendment right to lie, pages 23 and 65–66
• New content on the U.S. Supreme Court’s 2012 decision in American Traditional
Partnership, Inc. v. Bullock regarding corporate expenditures, pages 24 and 135

xi
Preface

• New examples of self-censorship of violent media content following the December

2012 school shooting at Sandy Hook Elementary School, pages 40–41
• Multiple new examples of symbolic expression (when conduct constitutes speech) in
political protest cases, pages 46 and 55
• Multiple new examples of school censorship, including censorship of newspapers,
t-shirts and “I Boobies” bracelets in public schools, pages 84, 87–88 and 96
• Updates on Clery Act violations by universities, pages 102–103
• New examples of thefts of college newspapers across the country, page 104
• New examples of efforts to ban books in public schools and libraries, page 108
• New content on federal appellate court ruling in Klen v. City of Loveland regarding
fighting words, pages 125–126
• New examples of true threats of violence using social media, pages 127–128
• New introduction to libel, pages 144–149
• New material on libel proof plaintiffs, page 151
• New material on Communications Decency Act libel defense, page 156
• New material on identification, page 158
• New material on limited purpose public figures, page 191
• New material on knowledge of falsity, page 201
• New material on single publication rule, pages 216–217
• New material on abuse of qualified privilege, page 229
• New material on facts vs. opinion, page 236
• All-new introduction to privacy, pages 250–252
• New discussion of 2013 federal appellate court ruling in Hart v. Electronic Arts
involving publicity rights of college football players in video games, page 266
• New content on anti-paparazzi statutes, pages 284–286
• New content on federal appellate court ruling in 2012 in Marsh v. County of San
Diego involving a familial constitutional privacy right over images of dead relatives,
pages 298–299
• New content on the 2013 federal appellate court ruling in Judicial Watch v. U.S. Secret
Service regarding FOIA access to White House visitor logs, page 350
• New discussion of the U.S. Supreme Court’s 2013 ruling in McBurney v. Young
regarding state public records laws, page 373
• Discussion of the government’s seizure of the telephone records of Associated Press
reporters, pages 393 and 429–430
• New and updated material on unmasking the identity of anonymous online posters,
pages 413–415
• Updated information on state shield laws, including new numbers, pages 423–435
• New material on pretrial publicity, pages 443–444
• New material on gag orders on trial participants, page 461
• New material on press contact with jurors, page 464

xii
 Preface

• New material on closing a judicial proceeding, page 470

• New material on open and closed court records, pages 482–484
• New material on cameras in federal courts, pages 491–492
• New material on the 2012 obscenity conviction of Ira Isaacs, pages 497–498
• New material on child pornography issues and cases, pages 509–512
• Updated material on sexting statutes, page 514
• All-new material on revenge pornography websites, page 529
• New material on trademarks, pages 535–540
• New material on plagiarism, pages 540–542
• New material on what can’t be copyrighted, pages 545–546
• New material on fair use, pages 555 and 567
• New material on copyright registration, page 570
• New material on copying and originality of plaintiff’s work, page 571
• New material on copying and access to plaintiff’s work, page 572
• New material on FTC regulation of privacy on social media and search engines,
pages 602–603
• New material on the FTC’s 2013 revisions to the Children’s Online Privacy Protection
Act (COPPA), pages 614–616
• New material on the FCC’s regulation of broadcast indecency, including the 2012
decision by the U.S. Supreme Court in FCC v. Fox Television Stations and the FCC’s
decision to only target “egregious” cases of indecency, pages 653–663

WEB MATERIAL
Banning registered sex offenders from online social networks, page 13
Access theory and the Internet, page 53
Violent-themed Internet postings, page 72
Wikileaks and prior restraints, page 75
Student speech rights on the Web, pages 94–95
Threats of violence on the Internet, pages 127–130
Information Superhighway and Net Neutrality, pages 135–140
Errors on web postings, pages 155–156
CDA libel defense, page 156
Single publication rule and the Internet, pages 216–217
Jurisdiction in Internet libel cases, pages 219–220
FTC regulation of privacy on the Internet, pages 252 and 255
Facebook’s “Sponsored Stories” settlement, page 259
Intrusion and the Internet, page 279
Familial privacy over death-scene images on the Internet, page 299

xiii
Preface

Private facts on the Internet, page 307

FOIA and electronic communication, page 345
E-mails and public records, page 373
Anonymity and the Internet, page 413
Defining who is a journalist on the Internet, page 421
Bloggers and shield laws, page 426
Using shield laws to protect anonymous posters, page 428
Community standards in Internet-based obscenity cases, pages 505–506
Aggregators, page 552
Copyright and the Internet, pages 575–577
File sharing, pages 577–578
Pirating film and TV shows, page 579
Politics and copyright, page 580
Variable obscenity and the Internet, page 508
Possession of child pornography on the Internet, page 513
Erotic materials in cyberspace, pages 526–530
FTC regulation of online privacy and social networks, page 602
Regulating junk e-mail and spam, pages 605–608
FTC jurisdiction over Internet ads, page 609
FTC enforcement of COPPA on the Internet, page 614
FTC regulation of blogging testimonials and reviews, pages 626–627
Online advertiser liability and CDA immunity, pages 629–630

xiv
chapter 1

The American Legal System

Sources of the Law 2 The Judicial System 16
Common Law 2 Facts versus the Law 17
The Role of Precedent 3 The Federal Court System 19
Finding Common-Law The Supreme Court 19
Cases 6 Other Federal Courts 25
Equity Law 7 Federal Judges 27
Statutory Law 9 The State Court System 28
Constitutional Law 11 Judicial Review 29
Executive Orders and Summary 30
Administrative Lawsuits 31
Rules 14 Summary 34
Summary 15 Bibliography 34

Before studying mass media law, one needs a general background in law
and the judicial system. In the United States, as in most societies, law is a
basic part of existence, as necessary for the survival of civilization as are
economic and political systems, the mass media, cultural achievement and
the family.
This chapter has two purposes: to acquaint you with the law and to
outline the legal system in the United States. While not designed to be a
comprehensive course in law and the judicial system, it provides a sufficient
introduction to understand the next 15 chapters.
The chapter opens with a discussion of the law, considering the most
important sources of the law in the United States, and it moves on to the judi-
cial system, including both the federal and state court systems. A summary of
judicial review and a brief outline of how both criminal and civil lawsuits start
and proceed through the courts are included in the discussion of the judicial
system.
Chapter 1

FIVE SOURCES OF LAW

1. Common law
2. Equity law
3. Statutory law
4. Constitutional law (federal and state)
5. Executive orders and administrative rules

SOURCES OF THE LAW

There are many definitions of law. Some people say law is any social norm or any organized
method of settling disputes. Most writers insist it is more complex, that some system of
sanctions and remedies is required for a genuine legal system. John Austin, a 19th-century
English jurist, defined law as definite rules of human conduct with appropriate sanctions
for their enforcement. He added that both the rules and the sanctions must be prescribed by
duly constituted human authority.1 Roscoe Pound, an American legal scholar, suggested that
law is social engineering—the attempt to order the way people behave. For the purposes
of this book, it is helpful to consider law to be a set of rules that attempt to guide human
conduct and a set of formal, governmental sanctions that are applied when those rules are
violated.
What is the source of American law? There are several major sources of the law in
the United States: the U.S. Constitution and state constitutions; the common law; the law of
equity; the statutory law; and the rulings of various executives, such as the president and may-
ors and governors, and administrative bodies and agencies. Historically, we trace American
law to Great Britain. As colonizers of much of the North American continent, the British sup-
plied Americans with an outline for both a legal system and a judicial system. In fact, because
of the many similarities between British and American law, many people consider the Anglo-
American legal system to be a single entity. Today, our federal Constitution is the supreme law
of the land. Yet when each of these sources of law is considered separately, it is more useful to
begin with the earliest source of Anglo-American law, the common law.

COMMON LAW
Common law,* which developed in England during the 200 years after the Norman Conquest
in the 11th century, is one of the great legacies of the British people to colonial America.
During those two centuries, the crude mosaic of Anglo-Saxon customs was replaced by a
single system of law worked out by jurists and judges. The system of law became common
throughout England; it became common law. It was also called common law to distinguish it
from the ecclesiastical (church) law prevalent at the time. Initially, the customs of the people
were used by the king’s courts as the foundation of the law, disputes were resolved according

* Terms in boldfaced type are defined in the glossary.

1. Abraham, Judicial Process.

2
 The American Legal System

to community custom, and governmental sanction was applied to enforce the resolution. As
such, common law was, and still is, considered “discovered law.”
As legal problems became more complex and as the law began to be professionally
administered (the first lawyers appeared during this era, and eventually professional judges),
it became clear that common law reflected not so much the custom of the land as the custom
of the court—or more properly, the custom of judges. While judges continued to look to the
past to discover how other courts decided a case when given similar facts (precedent is dis- Common law thus
cussed in a moment), many times judges were forced to create the law themselves. Common sometimes is known as
law thus sometimes is known as judge-made law. judge-made law.
Common law is an inductive system in which a legal rule and legal standards are arrived
at after consideration of many cases involving similar facts. In contrast, in a deductive system
of law, which is common in many other nations, the rules are expounded first and then the
court decides the legal situation under the existing rule. The ability of common law to adapt
to change is directly responsible for its longevity.
Fundamental to common law is the concept that judges should look to the past and
follow court precedents.* The Latin expression for the concept is this: “Stare decisis et non
quieta movere” (to stand by past decisions and not disturb things at rest). Stare decisis is the Stare decisis is the
key phrase: Let the decision stand. A judge should resolve current problems in the same man- key phrase: Let the
ner as similar problems were resolved in the past. Put differently, a judge will look to a prior decision stand.
case opinion to guide his or her analysis and decision in a current case. Following precedent
is beneficial as it builds predictability and consistency into the law—which in turn fosters
judicial legitimacy. Courts may be perceived as more legitimate in the public’s eye if they are
predictable and consistent in their decision-making process.

The Role of Precedent

At first glance one would think that the law never changes in a system that continually looks
to the past. Suppose that the first few rulings in a line of cases were bad decisions. Are courts
saddled with bad law forever? The answer is no. While following precedent is desired (many
people say that certainty in the law is more important than justice), it is not always the proper
way to proceed. To protect the integrity of common law, judges developed means of coping
with bad law and new situations in which the application of old law would result in injustice.
Imagine that the newspaper in your hometown publishes a picture and story about a
12-year-old girl who gave birth to a 7-pound son in a local hospital. The mother and father
do not like the publicity and sue the newspaper for invasion of privacy. The attorney for the
parents finds a precedent, Barber v. Time,2 in which a Missouri court ruled that to photograph
a patient in a hospital room against her will and then to publish that picture in a newsmagazine
is an invasion of privacy.
Does the existence of this precedent mean that the young couple will automatically win
this lawsuit? Must the court follow and adopt the Barber decision? The answer to both ques-
tions is no. For one thing, there may be other cases in which courts have ruled that publishing

*Appellate courts (see page 17) often render decisions that decide only the particular case and do not estab-
lish binding precedent. Courts refer to these as “unpublished decisions.” In some jurisdictions it is unlawful
for a lawyer to cite these rulings in legal papers submitted in later cases.
2. 159 S.W. 2d 291 (1942).

3
Chapter 1

FOUR OPTIONS FOR HANDLING PRECEDENT

1. Accept/Follow
2. Modify/Update
3. Distinguish
4. Overrule

such a picture is not an invasion of privacy. In fact, in 1956 in the case of Meetze v. AP3 a
South Carolina court made such a ruling. But for the moment assume that Barber v. Time is
the only precedent. Is the court bound by this precedent? No. The court has several options
concerning the 1942 decision.
First, it can accept the precedent as law and rule that the newspaper has invaded the
privacy of the couple by publishing the picture and story about the birth of their child. When a
court accepts a prior court ruling as precedent, it is adopting it and following it for guidance.
Second, the court can modify, or change, the 1942 precedent by arguing that Barber v. Time
was decided 72 years ago when people were more sensitive about going to a hospital, since
a stay there was often considered to reflect badly on a patient. Today hospitalization is no
longer a sensitive matter to most people. Therefore, a rule of law restricting the publication
of a picture of a hospital patient is unrealistic, unless the picture is in bad taste or needlessly
embarrasses the patient. Then the publication may be an invasion of privacy. In our imaginary
case, then, the decision turns on what kind of picture and story the newspaper published: a
pleasant picture that flattered the couple or one that mocked and embarrassed them? If the
court rules in this manner, it modifies the 1942 precedent, making it correspond to what the
judge perceives to be contemporary sensibilities and circumstances.
As a third option the court can decide that Barber v. Time provides an important prec-
edent for a plaintiff hospitalized because of an unusual disease—as Dorothy Barber was—but
that in the case before the court, the plaintiff was hospitalized to give birth to a baby, a dif-
ferent situation: Giving birth is a voluntary status; catching a disease is not. Because the two
cases present different problems, they are really different cases. Hence, the Barber v. Time
precedent does not apply. This practice is called distinguishing the precedent from the cur-
rent case, a very common action. In brief, a court can distinguish a prior case (and therefore
choose not to accept it and not to follow it) because it involves either different facts or differ-
ent issues from the current case.
Finally, the court can overrule the precedent. When a court overrules precedent, it
declares the prior decision wrong and thus no longer the law. Courts generally overrule prior
opinions as bad law only when there are changes in:
1. factual knowledge and circumstances;
2. social mores and values; and/or
3. judges/justices on the court.

3. 95 S.E. 2d 606 (1956).

4
 The American Legal System

For instance, in 2003 the U.S. Supreme Court in Lawrence v. Texas4 overruled its 1986
opinion called Bowers v. Hardwick5 that had upheld a Georgia anti-sodomy statute prohibiting
certain sexual acts between consenting gay adults. By 2003, American society increasingly
accepted homosexuality (evidenced then by both the dwindling number of states that prohib-
ited the conduct referenced in Bowers and by at least two Supreme Court rulings subsequent
to Bowers but before Lawrence that were favorable to gay rights and thus eroded Bowers’
strength). There also was growing recognition that consenting adults, regardless of sexual
orientation, should possess the constitutional, personal liberty to engage in private sexual
conduct of their choosing. Furthermore, six of the nine justices on the Supreme Court had
changed from 1986 to 2003. Thus, 17 years after Bowers was decided, there were changes in
social values, legal sentiment and the court’s composition. The Supreme Court in Lawrence
therefore struck down a Texas anti-sodomy statute similar to the Georgia one it had upheld in
Bowers. It thus overruled Bowers. Justice Kennedy noted that although “the doctrine of stare
decisis is essential to the respect accorded to the judgments of the court and to the stability
of the law,” it “is not, however, an inexorable command.” In the hypothetical case involving
the 12-year-old girl who gave birth, the only courts that can overrule the Missouri Supreme
Court’s opinion in Barber v. Time are the Missouri Supreme Court and the U.S. Supreme
Court.
In 2010, a closely divided Supreme Court in Citizens United v. Federal Elections Com-
mission overruled a 1990 opinion called Austin v. Michigan State Chamber of Commerce. The
Court in Austin had upheld a Michigan law banning corporations from spending money from
their own treasury funds in order to create their own ads in support of, or in opposition to, any
candidate in elections for state office. By 2010, the composition of the Court had shifted over
20 years and the five conservative-leaning justices (Anthony Kennedy, John Roberts, Antonin
Scalia, Samuel Alito and Clarence Thomas) in Citizens United voted to overrule Austin
in the process of declaring unconstitutional a federal law that prohibited corporations and
unions from using their general treasury funds to make independent expenditures for speech
expressly advocating for the election or defeat of a candidate for public office. In reaching this
conclusion, Justice Kennedy wrote for the majority about the importance of protecting politi-
cal speech, regardless of who the speaker is (a corporation, a union or the common citizen),
and he concluded “that stare decisis does not compel the continued acceptance of Austin.
The Government may regulate corporate political speech through disclaimer and disclosure
requirements, but it may not suppress that speech altogether.”
Obviously, the preceding discussion oversimplifies the judicial process. Rarely is a
court confronted with only a single precedent. Indeed, as attorneys would put it, there may be
several prior cases that are “on point” or may apply as precedent. And whether or not prec-
edent is binding on a court is often an issue. For example, decisions by the Supreme Court
of the United States regarding the U.S. Constitution and federal laws are binding on all fed-
eral and state courts. Decisions by the U.S. Court of Appeals on federal matters are binding
only on other lower federal and state courts in that circuit or region. (See pages 25–27 for a
discussion of the circuits.) The supreme court of any state is the final authority on the meaning of

4. 539 U.S. 558 (2003).

5. 478 U.S. 186 (1986).

5
Chapter 1

the constitution and laws of that state, and its rulings on these matters are binding on all state
and federal courts in that state. Matters are more complicated when federal courts interpret
state laws. State courts can accept or reject these interpretations in most instances. Because
mass media law is so heavily affected by the First Amendment, state judges frequently look
outside their borders to precedents developed by the federal courts. A state court ruling on a
question involving the First Amendment guarantees of free speech and press will be substan-
tially guided by federal court precedents on the same subject.
Lawyers and law professors often debate how important precedent really is when a
court makes a decision. Some suggested a “hunch theory” of jurisprudence: A judge decides
a case based on a gut feeling of what is right and wrong and then seeks out precedents to
support the decision.

Finding Common-Law Cases

Common law is not specifically written down someplace for all to see and use. It is instead
contained in hundreds of thousands of decisions handed down by courts over the centuries.
Many attempts have been made to summarize the law. Sir Edward Coke compiled and ana-
lyzed the precedents of common law in the early 17th century. Sir William Blackstone later
expanded Coke’s work in the monumental “Commentaries on the Law of England.” More
recently, in such works as the massive “Restatement of the Law, Second, of Torts,” the task
was again undertaken, but on a narrower scale.
Courts began to record their decisions centuries ago. The modern concept of fully
reporting written decisions of all courts probably began in 1785 with the publication of the
first British Term Reports.
While scholars and lawyers still uncover common law using the case-by-case method,
it is fairly easy today to locate the appropriate cases through a simple system of citation.
The cases of a single court (such as the U.S. Supreme Court or the federal district courts)
are collected in a single case reporter (such as the “United States Reports” or the “Federal
Supplement”). The cases are collected chronologically and fill many volumes. Each case
collected has its individual citation, or identification number, which reflects the name of the
reporter in which the case can be found, the volume of that reporter, and the page on which
the case begins (Figure 1.1). For example, the citation for the decision in Adderly v. Florida
(a freedom-of-speech case) is 385 U.S. 39 (1966). The letters in the middle (U.S.) indicate
that the case is in the “United States Reports,” the official government reporter for cases
decided by the Supreme Court of the United States. The number 385 refers to the specific
volume of the “United States Reports” in which the case is found. The second number (39)
gives the page on which the case appears. Finally, 1966 provides the year in which the case
was decided. So, Adderly v. Florida can be found on page 39 of volume 385 of the “United
States Reports.”
Computers affected the legal community in many ways. Court opinions are now
available via a variety of online services. For instance, two legal databases attorneys
often use and that frequently are available free to students at colleges and universities are
LexisNexis and Westlaw. These databases provide access to court opinions, statutory law
(see pages 9–10) and law journal articles. In most jurisdictions, lawyers may file documents
electronically with the court.

6
 The American Legal System

FIGURE 1.1
Reading a case citation.
Case name Abbreviated name Year case decided
of case reporter

Adderly v. Florida, 385 U.S. 39 (1966)

Volume number of Page number on which the report

case reporter of the decision in the case begins

If you have the correct citation, you can easily find any case you seek. Locating all cita-
tions of the cases apropos to a particular problem—such as a libel suit—is a different matter
and is a technique taught in law schools. A great many legal encyclopedias, digests, compila-
tions of common law, books and articles are used by lawyers to track down the names and
citations of the appropriate cases.

TYPICAL REMEDIES IN EQUITY LAW

1. Temporary restraining order (TRO)
2. Preliminary injunction
3. Permanent injunction

EQUITY LAW
Equity is another kind of judge-made law. The distinction today between common law and
equity law has blurred. The cases are heard by the same judges in the same courtrooms. Dif-
ferences in procedures and remedies are all that is left to distinguish these two categories of
the law. Separate consideration of common law and equity leads to a better understanding of
both, however. Equity was originally a supplement to the common law and developed side by
side with common law.
The rules and procedures under equity are far more flexible than those under common
law. Equity really begins where common law leaves off. Equity suits are never tried before a
jury. Rulings come in the form of judicial decrees, not in judgments of yes or no. Decisions in
equity are (and were) discretionary on the part of judges. And despite the fact that precedents
are also relied upon in the law of equity, judges are free to do what they think is right and fair
in a specific case.
Equity provides another advantage for troubled litigants—the restraining order. While
the typical remedy in a civil lawsuit in common law is damages (money), equity allows a

7
Chapter 1

judge to issue orders that can either be preventive (prohibiting a party from engaging in a
potential behavior it is considering) or remedial (compelling a party to stop doing something
it currently is doing). Individuals who can demonstrate that they are in peril or are about to
suffer a serious irremediable wrong can usually gain a legal writ such as an injunction or a
restraining order to stop someone from doing something. Generally, a court issues a tempo-
rary restraining order or preliminary injunction until it can hear arguments from both parties
in the dispute and decide whether an injunction should be made permanent.
For instance, in March 2013 a New York judge issued a temporary restraining order
(TRO) stopping Lifetime cable channel from airing a movie called “Romeo Killer: The
Christopher Porco Story.” The injunction came just four days before the movie was slated to
premiere. According to Lifetime, the movie was inspired by a true story—the conviction of
Christopher Porco for murdering his father and attacking his mother with an axe in Delmar,
New York. Although now behind bars, Porco sued Lifetime, seeking a judicial decree stopping
the movie’s broadcast. He claimed the movie violated his right of publicity (see Chapter 7
regarding the right of publicity). Such injunctions—even TROs, which are brief in time, as the
word “temporary” suggests—stopping the dissemination of truthful speech about a newswor-
thy matter (a murder) presumptively violate the First Amendment (see Chapter 2 regarding
prior restraints). Furthermore, newsworthiness is a defense against right-of-publicity lawsuits
(see Chapter 7). Lifetime thus sought and successfully obtained an emergency order from an
appellate court vacating the TRO and allowing the movie to air.
On the other hand, equitable remedies in the form of injunctions are more likely to
be granted in copyright cases where the plaintiff can demonstrate the defendant is selling
copyrighted material owned by the plaintiff (see Chapter 14 regarding copyright). Universal
Studios, which owns the movie rights to the “50 Shades of Grey” book series, sought an
injunction in 2013 against an adult-movie company called Smash Pictures to stop the dis-
tribution of a movie called “Fifty Shades of Grey: A XXX Adaptation.” While parodies that
make fun of or comment on the original work often are protected against copyright claims,
this porn parody copied many lines from the book nearly verbatim and simply claimed to be
a hard-core version of the book. The case ultimately settled, with Smash Pictures consenting
to a permanent injunction prohibiting the distribution of its parody.
Ultimately, a party seeks an equitable remedy (a restraining order or injunction) if there
is a real threat of a direct, immediate and irreparable injury for which monetary damages won’t
provide sufficient compensation.

WRESTLING WITH INJUNCTIONS:

THE HULK HOGAN SEX TAPE
In April 2013, former wrestler and reality TV star Hulk Hogan (real name Terry Gene
Bollea) was granted a temporary restraining order (TRO) by a Florida judge requiring
Gawker to take down a brief clip from a 30-minute sex tape and barring Gawker and
its affiliated sites from posting other excerpts. The tape purportedly shows Hogan
having sex with Heather Clem in a canopy bed.

8
 The American Legal System

While Gawker removed the tape from its site in light of the TRO, it left up a
lengthy narrative of the action, asserting it was newsworthy because Hogan is a
famous public person. As Gawker’s John Cook wrote in response to the TRO, “the
Constitution does unambiguously accord us the right to publish true things about
public figures.” The failure to follow a judicial order like a TRO, however, can place an
entity like Gawker in contempt of court, subjecting it to fines.
With more and more celebrities becoming “accidental porn stars” due to the leaking
or stealing of their sex tapes, one can safely bet that there will be more cases like
Hogan’s in the near future. In this particular case, Judge Pamela Campbell proved—
even if just temporarily—to be Hogan’s hero.

STATUTORY LAW
While common law sometimes is referred to as discovered or judge-made law, the third great
source of laws in the United States today is created by elected legislative bodies at the local,
state and federal levels and is known as statutory law.
Several important characteristics of statutory law are best understood by contrasting
them with common law. First, statutes tend to deal with problems affecting society or large
groups of people, in contrast to common law, which usually deals with smaller, individual
problems. (Some common-law rulings affect large groups of people, but this occurrence is
rare.) It should also be noted in this connection the importance of not confusing common law
with constitutional law. Certainly when judges interpret a constitution, they make policy that
affects us all. However, it should be kept in mind that a constitution is a legislative document
voted on by the people and is not discovered law or judge-made law.
Second, statutory law can anticipate problems, and common law cannot. For example, a
state legislature can pass a statute that prohibits publication of the school records of a student
without prior consent of the student. Under common law the problem cannot be resolved until
a student’s record has been published in a newspaper or transmitted over the Internet and the
student brings action against the publisher to recover damages for the injury incurred.
Third, the criminal laws in the United States are all statutory laws—common-law crimes no The criminal laws in
longer exist in this country and have not since 1812. Common-law rules are not precise enough the United States are
to provide the kind of notice needed to protect a criminal defendant’s right to due process of law. all statutory laws.
Fourth, statutory law is collected in codes and law books, instead of in reports as is
common law. When a bill is adopted by the legislative branch and approved by the executive
branch, it becomes law and is integrated into the proper section of a municipal code, a state
code or whatever. However, this does not mean that some very important statutory law cannot
be found in the case reporters.
Passage of a law is rarely the final word. Courts become involved in determining what
that law means. Although a properly constructed statute sometimes needs little interpretation
by the courts, judges are frequently called upon to rule on the exact meaning of ambiguous
phrases and words. The resulting process of judicial interpretation is called statutory con-
struction and is very important. Even the simplest kind of statement often needs interpreta-
tion. For example, a statute that declares “it is illegal to distribute a violent video game to
minors [emphasis added]” is fraught with ambiguities that a court must construe and resolve

9
Chapter 1

in order to determine if it violates the First Amendment speech rights of video game creators
and players (see pages 70–71 regarding regulation of video games). What type of content,
for instance, falls within the meaning of the word “violent” as it is used in this statute? How
young must a person be in order to be considered a “minor” under the law? Does the term
“distribute” mean to sell a video game, to rent a video game or to give it away for free?
Finally, because games are played in arcades, on computers and via consoles, just what pre-
cisely is a “video” game under the statute?
Usually a legislature leaves a trail to help a judge find out what the law means. When
judges rule on the meaning of a statute, they are supposed to determine what the legislature
meant when it passed the law (the legislative intent), not what they think the law should mean.
Minutes of committee hearings in which the law was discussed, legislative staff reports and
reports of debate on the floor can all be used to determine legislative intent. Therefore, when
lawyers deal with statutes, they frequently search the case reporters to find out how the courts
interpreted a law in which they are interested.

ATTACKING THE CONSTITUTIONALITY OF STATUTES: FACIAL

CHALLENGES VERSUS AS-APPLIED CHALLENGES
There are two primary ways to argue that a statute violates the First Amendment
right of free speech: (1) by attacking problems with its wording, terms and language
(known as a facial attack); or (2) by attacking problems with its actual application to a
particular factual scenario (known as an as-applied attack). A facial attack tests a law’s
constitutionality based on its text (its words and language), but does not consider the
facts or circumstances of a particular case. For instance, a challenge to a statute based
on the ground that it is either overbroad or unduly vague in its use of language (both the
overbreadth doctrine and the void for vagueness doctrine are described in the next few
pages of this chapter) are examples of facial challenges. In contrast, an as-applied attack
does not contend that a law is unconstitutional because of how it is written, but because
of how it actually applies to a particular person or particular group of people under
specific factual circumstances that allegedly deprive the person of a First Amendment
right. In general, as-applied challenges are the preferred method for attacking a statute.
As Justice Samuel Alito wrote in 2010 in United States v. Stevens,6 “the ‘strong
medicine’ of overbreadth invalidation need not and generally should not be administered
when the statute under attack is unconstitutional as applied to the challenger before
the court.” Ultimately, however, as Justice Anthony Kennedy wrote in 2010 in Citizens
United v. Federal Elections Commission7 (see pages 134–135 describing this case in
the unit “The First Amendment and Election Campaigns”), “the distinction between
facial and as-applied challenges is not so well defined that it has some automatic effect
or that it must always control the pleadings and disposition in every case involving a
constitutional challenge.”

6. 559 U.S. 460 (2010).

7. 558 U.S. 310 (2010).

10
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Miss Cheyne of
Essilmont, Volume 3 (of 3)
This ebook is for the use of anyone anywhere in the United States
and most other parts of the world at no cost and with almost no
restrictions whatsoever. You may copy it, give it away or re-use it
under the terms of the Project Gutenberg License included with this
ebook or online at www.gutenberg.org. If you are not located in the
United States, you will have to check the laws of the country where
you are located before using this eBook.

Title: Miss Cheyne of Essilmont, Volume 3 (of 3)

Author: James Grant

Release date: January 18, 2024 [eBook #72745]

Language: English

Original publication: London: Hurst and Blackett, Publishers, 1883

Credits: Al Haines

*** START OF THE PROJECT GUTENBERG EBOOK MISS

CHEYNE OF ESSILMONT, VOLUME 3 (OF 3) ***
MISS CHEYNE OF ESSILMONT

BY

JAMES GRANT
AUTHOR OF

"THE ROMANCE OF WAR," "THE CAMERONIANS,"

"THE SCOTTISH CAVALIER,"
ETC., ETC.

IN THREE VOLUMES.

VOL. III.

LONDON:
HURST AND BLACKETT, PUBLISHERS,
13, GREAT MARLBOROUGH STREET.
1883.

All rights reserved.

 Contents

Chap.

I. The Battle of Amoaful

II. The Scarabœus
III. The Lost One
IV. A Year of Joy
V. In Hampshire Again
VI. Thoughts that often lie too deep for tears
VII. 'Oh, for a Horse with Wings!'
VIII. A Birthday Gift
IX. Cadbury Redivivus
X. At Cape Coast
XI. The Old Warning
XII. 'Ashes to Ashes'
XIII. Events Progress
XIV. Bella's Dot
XV. In Bayswater
XVI. The Four-in-Hand Club
XVII. Humiliation
XVIII. Miss De Jobbyns' Admirer
XIX. The Foreclosure Effected
XX. Homeless
XXI. Conclusion

MISS CHEYNE OF ESSILMONT.

 CHAPTER I.

THE BATTLE OF AMOAFUL.

The firing proved a mistake—the result of a false alarm—so the night

passed without any other alerte or disturbance, and all remained quiet
during the temporary halt at Prahsu; but the troops heard of many strange
things as occurring at Coomassie, all deemed by the natives portentous of
its coming fate.

In its market-place—that scene of daily blood and murder—where the

predecessor of King Koffee devoted three thousand victims 'to water the
grave' of his mother—an aërolite fell, to the terror of the people; but there
came still a greater prodigy. A child was born which instantly began to
converse, and, to prevent it having intercourse with supernatural visitors, it
was placed alone in a room under guards, who in the morning found that it
had vanished, and that nothing lay in its place but a bundle of withered
bones; and on this the fetish men argued 'that Coomassie itself would pass
away, and nothing remain thereof but dead leaves;' and on the same day and
hour that Lieutenant Grant of the 6th—the first white man—crossed the
Prah, there sprang up a mighty tornado, that levelled the great tree under
which the king used to sit, surrounded by his warriors. This caused a
profound sensation among the Ashantees, who gathered by thousands
around it in the market-place, which at that time was described by one who
saw it as 'a den of reeking corpses, shrieking and tortured victims—men and
women butchered by hundreds—where skulls and human bones lay about
as oyster-shells do at home!'

By order of the king's fetishmen two prisoners had knives run through
their cheeks, and were tied up in the woods to die, as a test of whether our
invasion would be successful. The idea of the fetishmen was that, if the
victims died soon, all would be well with Ashantee; but they lived, one for
four and the other for nine days—so the nation gave itself over for lost.
 On the 6th of January—the day the fetish-tree fell—we shed the first
blood in that land of horrors, when Lord Gifford, at the head of fifty men,
captured a village occupied by an Ashantee outpost, and killed many of its
defenders.

And so, till the forward movement began, the troops were impatient
during the halt at Prahsu, the soldiers making wry faces at their daily doses
of quinine, and still more so at their weak ration of grog—only half a gill
per man, or a gallon of rum to sixty-four men—and the officers missing
sorely the pleasures of the long, glittering, flower-laden mess-table, and the
charms of the girls they had left behind them, and of whom they were
reminded by Du Maurier in some old stray numbers of our friend Mr.
Punch.

After the troops advanced, the 25th of January saw our posts pushed as
far forward as the Bahrien river, and a slight brush which they had there
with the Ashantees showed that they were making vigorous efforts to
concentrate their forces for a fierce resistance; and on the 31st was fought
the battle of Amoaful, which took place in the morning, and by eight
o'clock the white smoke of the musketry and the red flashes of the latter,
were spouting in every direction, amid the dark green and wondrous leafy
luxuriance of the bushy jungles.

The Rifles were in the reserve, 580 strong, under Colonel Warren. Thus
Dalton, Jerry, and others were for a time almost spectators while the fight
went on, and the leading column—consisting of the Black Watch, eighty of
the Welsh Fusiliers, and two rifled guns, led by Sir Archibald Alison (son of
the historian), extending as it advanced with loud cheers at a quick run—
attacked, before the rest of the troops came up, the village of Egginassie,
upon the slope of the hill that rises to Amoaful.

Prominent amid the greenery could be seen the red tufts on their tropical
helmets, then the representation of their famous historical scarlet plumes.

The firing here was tremendous, so much so that all sound of individual
reports was lost, and the din of the conflict became one hoarse roar. The
enemy used slugs, not bullets. Had it been otherwise, not a man of the
Black Watch—many of whom were severely hit—would have remained to
tell the tale. Major Macpherson (young Cluny) was wounded in several
places, but remained under fire, propped upon a stick.

In five minutes a hundred and five Highlanders, nine being officers, had
blood pouring from their wounds; but 'Onward' was the cry, and as the
Rifles came up in support, amid the ceaseless clatter of the breechloaders,
'for three hours after the Scottish and Welsh infantry had carried the village,'
says the Daily Telegraph, 'the contest was obstinately maintained in the
jungle, where it was difficult to see or reach the enemy, and quite as hard
for him to know how the fight went upon other points. Assailed in their own
wilderness, followed up foot by foot, the Ashantees fought well, but never
gave a fair opportunity for the shock of a real charge.'

As the Rifles advanced through the jungle in extended order, over

ground which the fire of the 42nd had strewed with killed and wounded
Ashantees, one of the latter, a colossal black savage, clad only with a
middle cloth and string of beads, propping himself upon his elbow, shot
Jerry's servant O'Farrel, in the back and killed him on the spot, as the ball
passed through his heart.

It was, perhaps, the last effort of expiring nature; but Jerry responded
promptly with his revolver, and sent a bullet whistling through the brain of
the Ashantee, who, as he was a man of fine proportions, was soon after
eaten by the Kossos or wild cannibals of Colonel Wood's regiment, who, as
Jerry said, 'felt peckish' after the fight.

A Highlander lost himself in the bush, and came suddenly upon a

cluster of retiring Ashantees, who shot him down by a volley and instantly
cut off his head, which they carried away, as no trophy is more prized by
this people than human heads, which formed the chief ornaments of the
king's palace, and even of his bed-chamber in Coomassie.

In the first days of February the passage of the Ordah followed, and on
the night the troops bivouacked by its shore they were without tents, and the
rain fell in merciless torrents, as if the windows of the sky had opened
again, while thunder bellowed in the echoing woods, and green forked
lightning lit up incessantly the bosom of the foaming river; yet more than
ever were our troops anxious when day broke to begin the weary march—to
reach Coomassie and grapple with the dusky enemy.

The first human blood Jerry Wilmot had ever shed was when he
pistolled the Ashantee who murdered—for murder it was—poor O'Farrel.
He had handled his revolver then promptly, if mechanically, and thought
afterwards—strange to say—with a little sense of disgust over the episode,
and the aspect of the dead negro, his yellow eye-balls turned back within
their sockets, his fallen jaw, and oozing brain, had actually haunted him.

But since then, in skirmishing, both in the bush and open, Jerry had, as
he phrased it, 'potted three or four more of the beggars,' as coolly as if they
had been black-cocks on a Highland moor.

While the Naval Brigade halted at Ordashu, the Black Watch, with half
a battalion of the Rifles, pushed on towards Coomassie.

Soon tidings came from Sir Archibald Alison, saying briefly,

'We have taken all the villages, but the last, before entering Coomassie;
support me with the Rifles, and I hope to enter it to-night.'

Fortunately he had been anticipated: the half battalion was close upon
his own, and with it were Dalton and Wilmot.

The slugs were coming out of the bush as thick as hail, and the advance
of the Highlanders and Rifles along the road that led to Coomassie was in a
form never before seen in war. Colonel M'Leod led the former.

Along the well-ambushed road they proceeded quietly and steadily, as if

upon parade, but by two abreast in file, so narrow was the forest path.

'Forty-Second, fire by successive companies—front rank to the right,

rear rank to the left,' shouted Colonel M'Leod.

'A company—front rank, present! rear rank, present!'

'So on,' says the correspondent of the New York Herald, 'and thus
vomiting bullets two score to the right and two score to the left, the
companies volleyed and thundered as they marched past the ambuscades,
the bag-pipes playing, the cheers rising from the throats of the lusty Scots,
till the forest rung again with the discordant medley of musketry, bag-pipe
music, and vocal sounds. Rait's artillery now and then gave tongue with an
emphasis and result which must have recalled to the Ashantees memories of
the bloody field of Amoaful, where Captain Rait and his subalterns, Knox
and Saunders, signalised themselves so conspicuously. But it was the
audacious spirit and true military bearing on the part of the Highlanders, as
they moved down the road to Coomassie, which challenged admiration this
day.'

So great was the roar of musketry in the echoing woods that, scared by
the terrible and unusual sound, the very birds of the air—and brightly
plumaged birds they were—grovelled in terror, with outspread wings over
the dying and the dead.

Many were borne rearward disfigured for life and frightfully wounded
by the missiles of their hidden antagonists; but the regiment never halted—
the Rifles following close—nor wavered, but moved steadily on with its
national music playing, until the Ashantees, conceiving it to be useless to
continue against men who advanced thus, heedless of all ambuscades, rose
from their coverts and fled in yelling hordes towards Coomassie.

'The cool, calm commands of Colonel M'Leod,' says Mr. Stanley, whom
we cannot help quoting, 'had a marvellous effect on the Highland battalion
—so much so that the conduct of all other white regiments pales before that
of the 42nd.' Frequently during the hot and rapid march to Coomassie the
Highlanders saw emerging from the bushes several scores of fugitives, who
found their movements accelerated by the volleys they received on such
occasions. Village after village along the road heard the disastrous tidings
which the fugitives conveyed, and long before the Highlanders approached
the place where the king remained during the battle, he had decamped
because of these reports.

King Koffee never for a moment anticipated a complete defeat, and

believed that he would only fall back in good order to give us battle at the
head of all his warriors in front of Coomassie itself, and thus obtain a peace
which would at least spare his palace—on which he set a great store—from
destruction.

When Sir Garnet Wolseley, with the main body, was drawing near that
place, he received another despatch from the front. Sir Archibald Alison
wrote to say that he had given some time to treat.

Thus a delay occurred in consequence, and of this delay the

circumstances are not very clear to the outer world. It does not appear from
some accounts to have been Sir Garnet's wish, yet it undoubtedly took
place, and put the troops to some inconvenience by allowing night to fall
before they entered the place.

'Coomassie at last!' exclaimed Dalton, as he threw himself, panting with

heat, among the luxuriant grass that bordered the now bloody and corpse-
strewn pathway. 'Let us but take it, lay it in ashes, and then hey for home!'
he added, hopefully. Yet he had had two narrow escapes; one ball had
knocked off his helmet, and another had scarred his left cheek.

'Yes, hey for home,' said Jerry, proffering his cigar-case; but poor
Dalton little knew all that had to be dared and done before he saw the last of
Coomassie!

All knew that when the final attack was made there would be a fierce
resistance to encounter—a great slaughter pretty certain to ensue—no
quarter given or taken; and, like several others in the corps, during the
unexpected halt, Dalton and Jerry were writing what might prove to each a
last letter to those they loved at home; and as the former wrote there came
curiously and persistently to memory the last verse of the song Laura was
wont to sing to him of old:

'Then think of me! for withered lies

The dearest hope I nursed;
And I have seen, with bitter sighs,
My brightest dream dispersed.'
 Is it strange that, after the peculiar manner of their parting, Jerry's first
and longest letter was not to his mother, but to Bella Chevenix?

'Poor Bella!' said he, in a broken voice, almost to himself, as he closed

the epistle.

'You did not part on bad terms?' asked Dalton.

'No, thank God! What made you think so?'

'Something in your tone.'

'I am writing to her, though she gave me no hope.'

'No hope—you—why?'

'She quite misunderstands the real love I bear her, and evidently
suspects that I wish to secure her hand, not because I am the squire of
Wilmothurst, but because she is in reality the heiress of it.'

'She—what riddle is this?' asked Dalton, taking the cigar from his lips,
and eyeing his friend.

'Did I not make you understand all that before, old fellow?'

'Not quite.'

'Well, old Chevenix has no end of mortgages over my inheritance—it is

well nigh all his property now; I can't even pay the interest—the mater
cannot realise how heavily the old place is burdened, and what a task my
father had to keep it together—so times there are when I don't care if I
should be knocked on the head—bowled out here.'

'Don't talk that way, Jerry,' said the older man, reprehensively; 'death is
too close to be lightly spoken of thus.'

Death was indeed closer than either perhaps thought.

'But there is your mother,' urged Dalton, after a pause.

 'She! It wouldn't break her "noble" heart, even were it so with me, and I
were lying stiff, as hundreds are now, in yonder bush,' replied Jerry, with an
irrepressible gust of bitterness, as he snipped the end off a cigar with his
teeth, and, lighting it, proceeded to smoke, silently and sorrowfully, while
re-charging his revolver for the coming attack; 'though, if we are to believe
the newspapers, the grief of the "upper ten," like that of royalty, is
something unfathomable as compared with that of any of the vulgar herd!'

CHAPTER II.

THE SCARABŒUS.

Before the troops, on the side of a large, rocky hill, and in the red fiery
light of the setting sun, setting in a sky where it flamed like a vast crimson
globe amid an orange and amber space that blended into green and blue
overhead, lay Coomassie, with all its long spacious streets of wigwam-like
houses, built of wattlework and mud, plastered and washed with white clay,
ornamented with rows of beautiful banyan trees, and having before the door
of each dwelling a special tree, at the foot of which were placed idols,
calabashes, and human bones, as fetishes for protection against evil.

It was four miles in circumference, and its most important edifice was
the palace from which King Koffee had fled—a central stone building of
European architecture, in the chief thoroughfare, so spacious that it
included two or three small streets, besides piazzas for the royal recreation,
with arcades of bamboo, the bases of which were ornamented with elegant
trellis work of an Egyptian character. The accommodation was most ample,
as befitted a monarch whom the State required to possess 3333 wives.

'There go the bugles at last, Dalton!' shouted Jerry, cheerfully, as he

sprang up and drew his sword, when the advance was sounded, just as the
sun went down, and the troops began to approach this terrible place,
through ground the atmosphere of which was made appalling by the awful
stench from exposed corpses which lay about in every direction, and over
which great vultures flapped their wings—the dead of past days of local
slaughter for various royal reasons; thus it was dark when the 42d and the
Rifles reached the edge of the swamp which nearly surrounds the place—on
three sides at least—that horrible and pestilential swamp, with floating
bones and the rotting flesh of the victims.

The first man through it, and actually in Coomassie, was young Lord
Gifford, who led the way with his scouts till he was wounded, when the
enemy opened fire for a time; but as the king had fled with his warriors, the
resistance was merely nominal, and tremendously hearty was the cheer of
the 42d as they entered the place, and the pipes sent up a skirl of triumph,
which announced that fact to all the troops who were coming on.

Excitement over now, Jerry Wilmot felt his soul sicken as he marched at
the head of his company up one of the principal streets, with the awful
odour of dead flesh everywhere around—victims never being buried, but
left where they were killed, or cast into the adjacent swamp. Over all that
town, as a writer has it, the odour of death hung everywhere, and came on
every sickly breath of hot wind—'a town where here and there a vulture
hops at one's very feet, too gorged to join the filthy flock, preening itself on
the gaunt dead trunks that line the way; where blood is plastered like a pitch
coating over trees, floors and stools—blood of a thousand (fetish) victims
yearly renewed; where headless bodies make common sport; where murder
pure and simple—the monotonous massacre of bound men—is the one
employment of the king and the one spectacle of the populace.'

Amid such surroundings the troops piled arms in the market-place,

guards were posted, and the rest sat down to their rations, amid the light
from blazing houses, which the native levies began to loot and then set
aflame; while many Ashantee warriors, who had been but recently fighting
with our men, lingered near the groups quietly, with their muskets in their
hands, saying ever and anon, 'Tank you, tank you'—an attempt at the only
English they knew.

The Fantee prisoners the troops had come so far to release were found
chained to logs; and one European, an Englishman, who was found free,
displayed like them the most extravagant joy on finding himself saved from
death at the hands of King Koffee.

'Is there a drop in your flask, Dalton?' said an officer, propping himself
on his sword. 'The odour here is literally awful.'

'You are welcome to what remains, but a strong cigar is best, my boy,'
replied Dalton, as he wrenched open a tin of preserved meat with the blade
of his sword.

'Now that we are here,' said Jerry, 'what will the next move be?'

'Burn the whole place, no doubt, and then be off like birds,' was the
reply of more than one.

'And so end the most hideous and uninteresting war in which British
soldiers have been engaged.'

'What the devil is that? Trundle it out of sight,' cried Jerry to a rifleman,
who was dragging near them an object which he had found, and which
proved to be one of the king's war-drums, ornamented with sixteen human
skulls and thirty-two thigh bones, and in the cords of which were stuck
three war-trumpets, made each to imitate a throat, with a tongue of red
cloth, and jaws but too real to form the mouthpiece. 'Take away the d——d
thing! Who could sup with that beside them?' exclaimed Jerry, in great
disgust, as the soldier laughed, saluted, and dragged away the ghastly
trophy, on the resounding head of which some of his comrades were ere
long beating while they sang some familiar music-hall ditty.

As it was expected that King Koffee might still come to terms, his
capital was not yet given to the flames. Indeed, he had sent messengers to
Sir Garnet Wolseley with missives to the effect that he would be early with
him next day and arrange for peace; but the morning of the next day passed
and noon without any sign of his coming, though the general and staff were
in readiness to receive him, and all were restless and uneasy, as it was
impossible to linger long in such a vast charnel-house as Coomassie.
 A dreadful tempest of rain made the adjacent country a swamp, giving a
hint that the fatal and pestilential wet season was at hand, and the words,
'We must be off,' were in everyone's mouth.

When five o'clock on that day came, and there were no tidings from
King Koffee—now that he had betaken himself into the interior, thus
proving himself unworthy of trust—it was resolved to leave marks of our
power and vengeance that would never be forgotten.

The troops knew that the streams in their rear would be swollen, that the
mere runnels in the ravines would soon become brawling torrents, so there
was no time to be lost in getting back to the coast, where the ships awaited
the army, which had only five days' provisions, so it was requisite that the
campaign should end sharply, surely, and sternly.

The royal state umbrella and various gold ornaments were taken as
presents for the Queen from the palace, in which the Highlanders were
much exercised in their minds to find, framed upon the wall of a room, an
engraving of 'Burns and Highland Mary' beside a bird organ, and various
old clocks, pots, and kettles; stools wet with the blood of recent human
victims, the royal couch garnished with human skulls—and skulls, indeed,
adorned most of the rooms, the floors of which were full of graves. In fact,
the whole palace, as Mr. Henty wrote, appeared to be little better than a
cemetery, though in its cellars were found bottles of brandy, palm wine, and
even champagne, which the discoverers thereof were not slow to fully
appreciate, and drain off to 'The girls we've left behind us.'

At last orders were given that the palace was to be blown up, the whole
town reduced to ashes, and a start was to be made for the sea; then the five
past days of continued toil and incessant fighting were forgotten, and every
heart beat happily and every bronzed face grew bright.

On the day the Engineers began to mine the palace, Dalton and Jerry
Wilmot paid it a visit, and the latter made very merry about the three
thousand three hundred and thirty-three wives of the fugitive king.

Unluckily for them both, the former saw a gold scarabœus, about the
size of a goose-egg, among the many strange ornaments at the head of the
king's bed, and with some force contrived to wrench it off, saying to Tony
as he did so, 'An article of bijoutric for Laura's boudoir—a souvenir of
Coomassie!'

The words were hardly out of his mouth when two tall and powerful
savages, who had been quietly—if sullenly and resentfully—watching the
'looting' of much royal paraphernalia and rubbish by officers and men,
threw themselves upon him with yells, while brandishing long straight
daggers that were minus guards or proper hilts, and who wore each at his
neck a human jaw, polished clean and white, as a kind of order of valour
perhaps.

Gesticulating violently, they seemed to demand the surrender of the

scarabœus, which proved eventually to be a famous fetish—famous even as
the skull of the murdered Sir Charles MacCarthy, which the king had
carried off with him as the chief palladium of Ashantee.

Fortunately Dalton had his sword in his hand, and kept them at bay till
they were expelled at the bayonet point by some of the Royal Engineers,
but when he and Jerry came forth they were conscious that these two
Ashantees with the jaw-bones were watching them and dogging their
footsteps, and were menacing them; but anon they slunk away when Dalton
put his hand to his revolver case.

Then they re-appeared again and again to his great annoyance and
irritation.

'This looks ill,' said Jerry; 'it is some state fetish. Throw the confounded
thing away. Chuck it at their woolly heads ere worse comes of it.'

'What can come of it?' asked Dalton.

'Your assassination or mine before we reach the coast, perhaps.'

'As for their menaces,' said Dalton, laughing, 'I value them as little as an
old troop horse might a pistol-shot.'

But not long after he had cause to regret not taking Jerry's advice.
 In a wattle-built house, of which they had taken possession merely as a
shelter from the heat of the sun by day and the baleful dew by night, the two
friends were partaking of a kind of 'tiffin' of tinned beef and biscuits, with a
glass of grog, before the march, when, at an opening which served as a
window, they became suddenly conscious of two woolly heads and two
dark faces, the gleaming eyes of which were stealthily watching them, but
vanished the moment Dalton started up.

'Look here, Dalton,' said Jerry, 'I don't like this business at all. I am not a
timid fellow, nor a very thoughtful one perhaps, but I have an unpleasant
presentiment that there is more in this matter than you think.'

'More in what?' asked Dalton, testily.

'This confounded gold beetle that you've bagged. Perhaps it is brass.'

'Not at all. Well?'

'It is said to be some great fetish, and you may be followed, tracked to
the bitter end—to Cape Coast, for all I know—till it is recaptured, or you,
perhaps, made away with. You remember the story of the "Moonstone,"
published about ten years ago, and how the possessor of it was followed
about till it was re-won?'

'Pshaw!—that was in a novel.'

'And this is reality. Novels are supposed to represent real life.'

'There go the bugles; the advance guard is falling in,' said Dalton, as he
put the gold scarabœus in his haversack, and they hurried forth.

At six o'clock in the evening the advanced guard moved off, and the
main body followed in the dusk, about an hour after. The Black Watch
remained as a rear-guard to cover the Engineers and burning party, which
consisted of about a hundred men of the latter corps.

Furnished with palm-leaf torches, they began the work of stern and
deliberate destruction, and, although grave fears were expressed that the
late tempests of rain would prevent the streets of thatch and wood from
burning, ere long the retiring troops saw, with cheers, mighty volumes of
smoke rolling from end to end of Coomassie, and there was but one regret
expressed, that the flames did not consume the Bantama (or burial-place of
the kings), with the temples of their hideous and atrocious paganism, made
terrible by the gore of a myriad human victims.

The pipers struck up, and merrily the Highlanders began their
homeward march, after the officer commanding the Engineers had reported
the total destruction of the palace, which he mined at four corners, and
brought down like a house of cards.

Around it all was in flames, and, owing to the dampness of the materials
of which the town was built, astounding were the columns, vast and dense,
of black smoke that rolled, not only over the whole site of Coomassie, but
the adjacent country, while ever and anon clear, bright pyramids of flames
shot skyward as the retiring troops toiled round the margin of the corpse-
strewn swamp on their homeward way, with their arms at 'the slope,' as all
were loaded.

And so the dire portents of the fetishmen, that Coomassie—the City of

the Tree—would pass away, and nothing remain of it but dead leaves, were
being realised to the fullest extent.

From the nature of the narrow path, the country through which it lay,
and the obscurity caused by the smoke enveloping the scenery, the march of
the troops was of a somewhat straggling nature, and proved a terrible one.
They had barely proceeded a hundred yards before they had every reason to
rejoice that the rains so greatly dreaded had not set in three days earlier than
they did.

In some parts through which the line of march lay, the district had
become an entire morass, and in one place, through which—in advancing—
they had passed nearly dry-shod there was a sheet of water nearly five
hundred yards broad, and in another, over which a narrow wooden bridge
had been thrown, there was a depth of six feet. 'So King Koffee had
calculated on these spring rains, as the Emperor Nicholas did on the winter
snows, to destroy our troops; but, happily, both calculated in vain.'