This is the follow-up I announced in my Wednesday blog post, "Deafening silence from software industry presents credibility problem for Google's Supreme Court petition."
"Final scorecard: 35 of 77 EFF 'amici' [are] current/ex GOOGLE, received funding, work for orgs that get funding, or have biz deals w/ GOOGLE"
Almost two and a half years ago, there was a great deal of interest in business relationships between the parties to this dispute and commentators such as bloggers, including yours truly (who took the very same position on interface-related copyrightability in public more than 10 years ago and also about five years ago while working against Oracle). However, no one besides Mr. Gross has recently found it worthwhile to research the connections between those "friends of the court," about half of which are easily identifiable as Google friends. Instead, certain journalists (fortunately only a very few) have worked hard to describe those computer scientists as the authority on the issue. Well, even if you would like the the law to be what those guys say, it's not journalism but downright propaganda to overstate the importance of that filing without doing your homework. If you are real, serious journalists, why can't you do what Mr. Gross has done and simply run some Internet searches--Google searches, that is--to track down all those connections? So much for that.
On the substantive side, there's only one thing in Google's reply brief (published in my previous post) that I wish to discuss. Other than that, unless anything important comes to my mind or something interesting happens, I'll just wait for the Supreme Court's decision on the cert petition.
The one thing that is key here (other than Google's emphasis of the favors it received from its best friends in the form of signatures) is the question of what effect Google's proposal to hold 7,000 lines of highly-creative and highly creatively-structured declaring code uncopyrightable (as the district judge mistakenly did in an unprecedented outlier ruling) would have on software copyright as a whole. As an app developer who has written a lot of code himself and has recently hired four full-time developers, I'm obviously interested in a reasonable degree of IP protection for software. While I applaud Google for fighting in certain areas against the (sometimes institutionalized) excesses of the patent system, I view Google's attack on software copyright as an attack on every honest (i.e., non-thief) software developer in the world.
In its reply brief, Google still--after all those years--fails to make a workable line-drawing proposal. It just denies the undeniable: that an overreaching application of the §120(b) exclusion of systems and methods of operation from the scope of copyright would create enormous uncertainty about the copyrightability of any software, at least of all object code (since object code does not contain source code comments).
Google says in its reply brief "that the Java libraries of pre-written programs are generally eligible for copyright protection, but the method headers (also known as declarations) used to operate those programs are not." While this appears, at first sight, to be a line-drawing suggestion, it's utterly unhelpful once you think it through: the distinction between declaring code and other code makes no sense under software-related copyright law.
Google claims that the exclusion of systems and methods of operation applies to method headers in a very broad sense. According to Google's reply brief, it doesn't depend on any fact-specific determination. Ineligible. End of story. But Google's lawyers know that the Supreme Court would reject a petition for writ of certiorari that overtly advocates the unconstitutional abolition of software copyright as a whole. So they included the "don't worry" message I just quoted. But software developers would have to worry if the Supreme Court ever considered agreeing with Google.
Throughout this litigation, Google has always argued that whatever was presented wasn't copyrightable. Not just declaring code. Not just the nine-line rangeCheck function (which even the district court held copyrightable, quite tellingly). Even a bunch of decompiled programs that consist mostly of non-header code were held copyrightable, though Google said they were not. I have yet to see the first piece of software that Google agrees is copyrightable--except for the closed-source parts of Android, of course. Google does make it clear to Android device makers that it will enforce its copyright in those programs should anyone copy them without a license. But those are not at issue in this dispute.
I've really tried very hard to understand whether Google's proposal could be workable, and I just can't see how it would ever work. I can't see how anything good could come out of this Supreme Court petition for Google without causing massive damage to the software industry--including little guys like me--as a whole.
Let's think it through together. When lawmakers decided that software would be protected by copyright law just like literature, they made a policy judgment that is now binding on everyone, even on the Supreme Court. It has been clear ever since that not only program source code, which may contain expressive elements such as names and commentary that are not needed for functional purposes, but also object code stripped of those optional though expressive elements is protected by copyright law.
It makes for a much more focused analysis if we start from that premise: while §102(b) excludes systems and methods of operation from the scope of copyright, even object code that is by definition functional--it's the code you can actually run on your computer--does deserve and enjoy copyright protection provided that it's original.
That premise, in and of itself, makes it very clear that §102(b) is meant to protect only against overreaching interpretations of copyright law. Someone who writes a book about an accounting system doesn't own the accounting methods. Someone who publishes a game, or a book on game rules, can't monopolize a method of gameplay. Those questions were decided a long time ago and have nothing to do with the literal copying of 7,000 lines of highly-creative code. Of course, if copyright law allowed someone to monopolize an accounting method or a game category, then software copyright would be like broad and trivial software patents on steroids. Again, understood and agreed. But that's not the issue here.
Google could have designed an API with the same technical characteristics as the Java API without infringing copyright. It would just have had to come up with its own interface. As a result, programmers would have had to learn the new interface, but that would have been Google's problem (when it needed to get traction for Android among developers), not Oracle's.
Oracle never said that you couldn't have an API that allows you to rename files, to draw rectangles, or to terminate threads, without taking a license to Java. So this has nothing do with cases like Baker v. Selden (the one involving the accounting method).
Essentially, Google is saying that header code is inherently, and without a need to consider the facts, a system or method of operation, while other code may or may not be depending on the facts.
If you look at this through the lens of "no matter what §102(b) says, even object code stripped of variable names and source code comments must remain eligible for copyright protection because that's the way Congress and all courts wanted it to be," then there's really no basis on which one can consider header code to be, inherently, a system or method of operation without saying the same about all other code. That's the whole problem.
In order to illustrate this, I'm now going to walk you through a couple of code segments that the district court held copyrightable (against Google's non-copyrightability arguments) and discuss, from the §102(b) angle, the difference between headers and other code, just to show you that the distinction is nonsensical in a copyrightability context.
The header--and thus non-copyrightable part according to Google--would be everything that's in the first line before the opening brace. The rest would be eligible for copyright protection (though Google said this particular code segment wasn't worthy of copyright protection for other reasons than being a header; essentially, Google said it was way too small to be copyrightable).
I'm obviously not saying that the first line on its own would be copyrightable in isolation. But that's not because it's a header. I'd have an even bigger problem with any of the other lines if someone tried to copyright them on their own. Just like copyrightable music consists of non-copyrightable notes and this blog post as a whole is copyrightable while none of the 26 letters used in its are, you can always break down a copyrightable work to the level of uncopyrightable atoms.
So it typically (with the exception of some unusually creative single lines of code) takes a set of lines--in this case, nine lines--to identify a copyrightable work. But why would the header in this case have to be completely ignored in this analysis while the rest would at least have to be looked at?
It makes no sense if you look at what each line does. If the header is excluded under §102(b), so is the rest. If the rest is not excluded, then the header--and, as a result, a reasonably creative and large set of headers--isn't excluded either. It sounds simple because it is.
That would be code making use of the header. It wouldn't be header code. If anything, that code, because it triggers the execution of the rangeCheck code, would be more of a system or method of operation than the rangeCheck header ever was.
The body of the rangeCheck function consists of two instructions that have a simple pattern: if a condition is met, an exception is thrown. Why would the "if" part that results in a comparison of actual numbers, or the "throw" part that triggers an exception (i.e., the program may stop executing, or at least there would have to be some exception handling that organizes an orderly retreat after an error came up), be less of a system or method of operation than the header? I just can't see that.
Sure, this was just rangeCheck. A very small function. Still, copyrightable in the opinion of the court(s) below. But we won't reach a conclusion more favorable to Google's position even if we compare header lines to non-header lines from larger programs. Let's look at one of the aforementioned decompiled files (that were also held copyrightable against Google's representation that they were not). The first one of those programs is AclEntryImpl. We won't discuss every line, just the categories of lines of non-header code.
The "package" command at the beginning is about defining namespaces. Since it's only one line, we don't have to waste time discussing whether or not this is header code. There's certainly a case for a "package" command being header code. But the "import" commands that follow have the effect of importing other namespaces for easier references. So, for example, if you have a namespace that is called mynamespace.tools.filemanagement and it comes with a compressedFileArchive class, then you can either reference that class by writing mynamespace.tools.filemanagement.compressedFileArchive each time you make use of it, or if you think you're going to use this one (and/or other classes from the same namespace) frequently, you may just import that namespace and then you can reference compressedFileArchive directly (unless another class by that name is also found in, or has been imported into, your namespace, in which case you need to specify which one you mean).
Those three lines declare (define, create) a variable of data type "Principal" named "user," a variable of data type "vector" named "permissionSet," and a variable of type "boolean" (it's binary; true or false) named "negative." So here you have declaring code of the kind that Google says is not copyrightable if it's in a header file, but Google says code that is not in a header-only file may be copyrightable. Remember, Google's reply brief says "that the Java libraries of pre-written programs are generally eligible for copyright protection, but the method headers (also known as declarations) used to operate those programs are not." Those "private" commands (they define a variable that is available only at the local level and can't be accessed from outside) are, however, part of the pre-written program code that gets executed when you instantiate the AclEntryImpl class (i.e., make use of the header in order to create an object based on the class definition).
If we believe that such declarations must be copyrightable, then we already disagree with Google. If we say, only for the sake of the argument, that this kind of code shouldn't be copyrightable, then we must disagree with Google shortly thereafter.
Why would this constructor code not be excluded under §102(b) if the headers and even the "private" declarations are? Again, it makes no sense.
Those four lines assign a value to each of three variables. The "user" variable is initially assigned "null", a value that means "not available." Then, at the end of the constructor, it's assigned the content of the "principal" variable, which is the only parameter of the constructor (i.e, the only value passed on to the constructor when it is called). It makes no sense to have two assignments in the same block of code because the second one undoes the first one and no use is made of the assigned value in the meantime; the reason it's here at all is that a decompiler (a program that creates source code based on object code) was at work, and decompilers typically aren't smart enough to identify such inefficiencies. So technically, we have just three assignments of values to variables. Each variable is like a predefined storage place for information. Each such storage place gets some content, and then constructor is done. This is not declaring code, but wouldn't you agree that assignments look pretty much the same as declarations?
They do, and in fact, most programming languages allow developers to mix them: you can declare a variable and immediately assign an initial value to it. Or, if you have so-called constants, you must assign a value at the beginning and that value won't ever change while the program is being executed.
The absurdity of Google's proposition "that the Java libraries of pre-written programs are generally eligible for copyright protection, but the method headers (also known as declarations) used to operate those programs are not" is shown, not only but particularly clearly, by the fact that Google wants the very same thing--a declaration that comes with an immediate assignment--to be ineligible for copyright protection if it's in a header file but potentially copyrightable, depending on the specific facts, if it's found inside a block of non-header code. "Absurdity" is an understatement. No reasonable person could ever claim that copyrightability depends on where a particular line is found. Musical notes are equally copyrightable whether they're at the beginning or the end of a song or an entire opera. There's no rule that the prelude is copyright-ineligible. Similarly, headlines in books (Oracle's famous Harry Potter example) aren't treated differently from the body of the text. Prefaces and epilogues aren't treated differently from what's between them.
At this point it should already be clear that Google does not make a workable line-drawing proposal. It proposes a vague and arbitrary line that has no basis in the law and is completely detached from what Congress wanted when it decided that computer program code, even object code, must be copyrightable as long as it's original and expressive.
Let's continue a bit with the AclEntryImpl class definition anyway. The next header line there is "public AclEntryImpl()" and that's also a constructor, but one without any parameter. The code of this constructor is a subset of the previous constructor, the one with the "principal" parameter. This explains why the decompiler resulted in the aforementioned waste of assigning two different values to the "user" variable in the same code segment: the constructor with a parameter initially calls the one without a parameter and then just assigns the parameter value to the "user" variable. The recompiler tool that was used here simply processed each line without checking again later whether any particular line was rendered pointless by a subsequent line. But that's unrelated to the question of copyrightability. I'm just trying to make sense of something that makes no technical sense here, and that's due to the genesis of this file (decompilation).
After the two constructors, we find a boolean (true/false) function named setPrincipal. The "public boolean" line is a header; the code block within the braces is the code that gets executed when this method is invoked. The purpose of setPrincipal is to assign the value of the "principal" parameter to the "user" variable, but only if "user" hasn't been given a value before (otherwise it will return "false" to report that the attempt to assign the value has failed, a safeguard against overwriting the variable after the initial assignment and a typical write-only-once mechanism).
Why is "if(user != null)" and "return false" (to be clear, both "return" and "false" are predefined Java keywords, while the method name setPrincipal was freely chosen by the developer) any more expressive or any less functional than the declaring code? I can't see why that would be the case. I also can't see why a line that calls the setPrincipal function would be less of a system or method of operation than the line that defines the function.
Unless one tries to interpret the scope of copyright protection based on declaring code too broadly (like I wrote above, as a software patent on steroids), declaring code is an even weaker case for a §102(b) exception than non-declaring code.
This stuff isn't worth the Supreme Court's time. It's no more worthy of a Supreme Court review just because Google's friends signed some amicus briefs and got some of their friends and peers to sign. Certiorari should not become a campaigning contest.
The only way the Supreme Court could help Google here would be by creating a black hole that would absorb almost all software copyright protection, including all (no exception there) object code protection. Since the Supreme Court won't create a black hole, and since there's no basis for an interoperability exception to copyrightability in U.S. law, what good would a Supreme Court review do other than delay resolution of this case, which would come in handy for Google but not be in the public interest?


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"The Supreme Court of Canada announced today that it will hear appeals in a trilogy of Ontario securities class action cases: Green v. CIBC, Silver v. IMAX and Celestica v. Millwright Regional Council of Ontario Pension Trust Fund."
Decision Gives Defendants to Securities Class Actions Cause for Optimism.
A recent decision of the Ontario Superior Court of Justice addresses important aspects of Ontario’s secondary market liability regime. In Green v. Canadian Imperial Bank of Commerce, 2012 ONSC 3637, Justice George Strathy denied the plaintiffs leave to commence a proposed class action under Part XXIII.1 of the Ontario Securities Act on the basis that the limitation period had expired. Justice Strathy also rejected the plaintiffs’ request to certify common law claims for negligent misrepresentation. Both aspects of the CIBC decision are discouraging for prospective plaintiffs. While the Canadian jurisprudence considering the tests for leave and certification in securities misrepresentation cases continues to evolve, CIBC suggests that a more restrictive approach is developing.
The plaintiffs, who were shareholders of CIBC, alleged that during a period from May 31, 2007 to February 28, 2008, CIBC and four of its senior officers misrepresented and/or failed to disclose CIBC’s exposure to the US residential mortgage market, including its exposure to subprime mortgages. They further allege that the “true state” of CIBC’s exposure was not revealed until early 2008, at which point the value of CIBC’s shares fell. The plaintiffs commenced statutory claims under Part XXIII.1, as well as common law misrepresentation claims. The plaintiffs sought leave under section 138.3 of the Securities Act to commence an action in respect of the statutory claims and certification of a class action including both the statutory and common law claims.
Justice Strathy explained that, if not for the passage of the limitation period, he would have granted the plaintiffs leave to commence an action under Part XXIII.1. He noted that this was the first Ontario decision in which the “rubber may really hit the road” in the application of the leave test, and conducted a lengthy obiter dicta analysis into whether the action had a ‘reasonable possibility of success’ – the second requirement for leave in section 138.8(1). Justice Strathy also explained that, if not for the expiry of the limitation period, he would have certified the statutory misrepresentation claims.
"In a stunning reversal, a five-judge panel of the Ontario Court of Appeal reversed its decision in Sharma v. Timminco Ltd. where it just recently held that the three-year limitation period for bringing a statutory claim for misrepresentation in respect of shares trading in the secondary market could not be suspended until a court had granted leave to commence the claim.
In revisiting and overruling its own decision in Green v. Canadian Imperial Bank of Commerce, the Court of Appeal recognized the draconian effects of a faulty interpretation of this limitation period provision, and restored the careful balance intended by the framers of the Ontario Securities Act.
The purpose of the Securities Act is to protect investors from unfair, improper, or fraudulent practices and to foster fairness, efficiency, and confidence in capital markets. A strict application of Timminco has caused undue prejudice to plaintiffs and retards these aims. The Court of Appeal’s decision in Timminco arose from a vacuum in which the court failed to consider any of the consequences that flowed from its decision.
Directly faced with the consequences of Timminco, the Court of Appeal reversed itself, and set aside its previous interpretation given to the suspension of the limitation period associated with claims made for misrepresentations in respect of shares trading in the secondary market. In so doing, it struck the correct balance between prejudice to plaintiffs, the rights of the defendants, the public interest, and the goals of the act.

matches: v. v. v. v. v. v.


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In the valley of the Sor Brook the land is liable to flooding, but in the centre of the parish, at Claydon Hill (566 ft.) and Welshcroft Hill, and in the northwest and north-east, it rises to 500 ft. and over. The soil is red Marlstone overlain by Upper Lias clays, with Northampton Sands and Inferior Oolite Limestone on the hills. (fn. 8) Marl from the limestone quarries no doubt supplied the fuller's earth for Broughton's fulling-mills. (fn. 9) The Marlstone, apart from providing good corn-growing land, and plentiful building-stone, (fn. 10) lends colour to the landscape. Although the landscape retains an upland character, hedging of fields after inclosure in the 17th and 19th centuries, the creation of a park (58 a.) in the 18th century, and the making of coverts in the late 18th and 19th centuries (fn. 11) have diversified it. Ridge and furrow is visible on the high ground near Woad Mill Farm and elsewhere in the parish.
The parish roads probably carried much traffic in the Middle Ages: there were markets at Banbury and Chipping Camden (Glos.) and North Newington chapel seems to have had local importance as a pilgrim centre. (fn. 16) From the 17th century onwards growth of population and trade, and of Broughton's industries — fulling, dyeing, and later paper-making — added to the volume of traffic. (fn. 17) Especially at North Newington there were important wagoner's inns: in 1782 and 1783 the 'Roebuck' and the 'Three Lions' were licensed, (fn. 18) along with the 'Twisleton Arms' in Broughton village. (fn. 19) The 'Roebuck' and the 'Saye and Sele Arms' (successor to the 'Twisleton Arms') have obtained a new lease of life from modern motor traffic. North Newington contains another inn, 'The Bakers' Arms'.
Broughton village lies in the south-east corner of the parish. (fn. 20) Its name (O. E. Broctun) means 'the inclosure or farm by the brook'. (fn. 21) The field name 'Chadwell', (fn. 22) which seems to be one of many invocations of St. Chad, Bishop of the Mercians (d. 672), perhaps provides additional support for the antiquity of the settlement.
The medieval castle and church lie close together on gently rising ground on the northern bank of the Sor Brook near its confluence with two small feeders. Nearby stood Broughton mill. In 1685 Broughton village comprised 19 houses standing in their own gardens and orchards. Most were grouped in Church Lane or spread out along both sides of the Banbury road between the mill and Danvers farm. Four of the houses, including 2 isolated fulling-mills on the Sor Brook, were right off the road. (fn. 23) In the 1660s the Danverses' house and one other had been taxed on 4 hearths and there were 3 other farm- or millhouses with 3 hearths each. (fn. 24) The village expanded from the late 17th century to the 1820s, especially in the last decade of the 17th century and in the later 18th century. (fn. 25) In 1738 the rector said that there were 30 houses (fn. 26) and in 1805 that there were c. 37 families. (fn. 27) In 1827 Broughton contained 26 cottages, 5 farm-houses, a mill, and the rectory, and there were 2 isolated mill-houses. (fn. 28) Population was, however, then declining. It had reached its 19th-century peak in 1821, earlier in fact than in most Oxfordshire villages, and it fell fairly steadily to 132 in 1911, when it began to rise again. (fn. 29) In 1961 it was 158 (fn. 30) but subsequently increased as commuters settled in the village.
Apart from the castle (fn. 31) the most imposing house in Broughton is the rectory-house. This house was originally built in 1694 by the rector John Knight on a new site. (fn. 32) It seems that the medieval rectory stood on rather lower ground, for remains of a 14th-century building were found there in the 19th century. In 1665 it was taxed on 7 hearths. (fn. 33) The medieval window now in the rectory out-buildings was placed there when the tithe barn was pulled down in the early 19th century. (fn. 34) Knight's house, of 2 builds, had five bays, two stories, and cellars, and still stands, though considerably enlarged in 1820 and 1842. The earlier work of 1820 involved the building of the bay-windowed drawing-room or west portion of the house with its wide-eaved roof after a design by S. P. Cockerell. New offices and kitchens and the upper coach house were designed by H. J. Underwood of Oxford in 1842. (fn. 35) The house retains its original 17th-century wainscoting, which Hannah Knight, the rector's relict undertook not to remove. (fn. 36) Most of the other houses in the village street date from the 19th century. They are built of local stone and in the Gothic style: Rectory Farm replaced the old farm-house in 1807–8; in 1841 twelve old cottages were pulled down and replaced by three new blocks, each block containing four tenements; in 1859 the almshouses were built by Elizabeth Bradford Wyatt; in 1864 the house opposite the 'Saye and Sele Arms' was built; in 1877 a Gothic lodge to the castle and in 1882 a brick Sunday school (now closed) were constructed, (fn. 37) and in 1892 the mill was converted into a dwelling-house. (fn. 38) This part of the village, which includes the 'Saye and Sele Arms', built in the 17th–18th centuries, remained substantially unaffected by modern developments, apart from the introduction of electricity in 1954. In 1816 many trees were planted in 'Townside' (fn. 39) which was notable for its trees in 1963.
Before the Conquest BROUGHTON was held by Turgot the lageman of Lincoln, who had estates in Yorkshire, Nottinghamshire, and Lincolnshire. Turgot's lands passed after the Conquest to Robert de Todeni and his son Berenger, and in 1086 Berenger held an estate assessed at 20 hides in Broughton which probably included North Newington. (fn. 56) The overlordship of Broughton evidently descended with the de Todeni lands to Berenger's niece. Cecily of Belvoir, daughter of Adeliz de Todeni and Roger Bigod, who married William (I) d'Aubigny. (fn. 57) In the early 13th century Broughton and North Newington were held as three fees of the honor of Mortain of William (III) d'Aubigny of Belvoir (d. 1236). (fn. 58) The overlordship of the manors should have descended through Isabel, daughter of William (IV) d'Aubigny (d. 1242), to the de Ros family, (fn. 59) but their connexion with the lordship of Belvoir appears to have been lost in the later 13th century.
It is uncertain when the Broughtons became lords of North Newington. Late in the 12th century NEWINGTON was held by William Clement, lord also of Balscott in Wroxton and of Dunchurch (Warws.). (fn. 79) He left two daughters as his heirs, Christine and Alice. Christine and her husband, Avenel Butler, sent the child Alice to a convent and later persuaded her to become a nun, thus acquiring all the property. (fn. 80) When Alice came of age she repudiated her vows, married, and demanded half her father's inheritance. The lawsuit dragged on from 1201 to 1220, first against Avenel Butler and later against his son Jordan, who refused to restore the property on the plea that Alice was an excommunicated nun. (fn. 81) Eventually in 1220 Alice quitclaimed to Jordan Butler her inheritance in 2 fees and 4 hides of land in Newington, except for 20 a., in return for land in Wroxton. (fn. 82) Christine, daughter and heir of Jordan Butler, married John de Dunheved, who was returned in 1242 as one of the lords of the 3 fees in Broughton and Newington. (fn. 83) After 1244 there is no record of the family's connexion with these fees. (fn. 84) By the end of the century 2 fees in Newington had passed to John of Seagrave, who was granted free warren in his demesnes there in 1299. (fn. 85) Seagrave, one of Edward I's leading commanders, died in 1325. Although his grandson John was said to be lord of Newington in 1346, (fn. 86) the manor had probably already passed to the Broughtons. No further trace of the Seagrave's manor has been found and the property appears to have been divided earlier in the century. Perhaps a part was given in dower, for in 1316 John of Broughton was said to have been lord of both Broughton and Newington, (fn. 87) and the Seagrave arms on the earliest Broughton family tomb in Broughton Church imply that the families were allied. Newington was included in the settlement of the property of John of Broughton's son in 1333. (fn. 88) The two manors thereafter followed the same descent.
Broughton Castle, probably begun by Sir John of Broughton (d. 1315), (fn. 117) is a notable example of a medieval fortified manor-house with 16th-century additions. It was built of stone from the local quarries. (fn. 118) It consisted of an exceptionally large hall (54½ ft. x 28¾ ft.), (fn. 119) flanked at one end by the lord's private apartments and at the other by the kitchen and other offices. The hall was much altered in the 16th century when its original timber roof was replaced by an upper floor, but surviving buttresses indicate that it was of four bays, lit by traceried windows, portions of which can still be seen built into both walls. The entrance appears to have been in the second bay from the west, where one jamb of the south doorway can be seen in the exterior wall. The lower doorways in the west wall, blocked in the 16th century, led to the buttery, pantry, and kitchen; those above them, also blocked, presumably gave access to a gallery, but the original arrangement cannot be fully reconstructed. At the other end windows with richly moulded jambs flanked the dais. The block to the east of the hall retains its medieval arrangements to a greater extent than any other part of the house. It is remarkable for a series of vaulted rooms and connecting passageways. The north passage led to a newel staircase mounting to the Great Chamber and further on, on the ground floor, to its undercroft, now used as the dining-room. Both the passage and the undercroft have vaulted roofs. From the south side of the hall another vaulted passage extends eastwards to the straight chapel stair and the south-east projection. The chapel is a rare example of an untouched 14th-century private chapel and can, perhaps, be exactly dated by the licence granted in 1331 to John de Broughton for divine service in his oratory at Broughton. (fn. 120) The chapel retains its original stone altar slab supported on stone brackets, and its only loss is the glass that once filled its lofty threelight east window. A blocked entrance in the south wall presumably led from the upper chamber to a gallery, and a squint still enables the altar to be seen from this upper chamber.
Bishop William of Wykeham bought the manor in 1377 and may have been responsible for some minor alterations to the castle. He may also have reconstructed the gatehouse, for the inner arch, the staircase turret, and the upper story all appear to date from the later 14th century. The gatehouse has no portcullis, but was provided with cross arrowslits and two pairs of gates. The existing outer gates are dated 1617 and have wheels inset for raising a drawbridge. The building was repaired in 1655 by William Fiennes (d. 1662) whose initials W. F. appear on the battlements. In 1406 Sir Thomas Wykeham was given licence to crenellate his house, (fn. 121) and was probably responsible for building a battlemented wall, of which a portion remains to the south-west of the gatehouse. He may also have built the stable which adjoins the gatehouse to the east, as it is lighted by windows with Perpendicular tracery of the second quarter of the 15th century. His alterations to the house seem to have been comparatively slight: he appears to have filled in the two arches which span the space between the south end of the chapel and the south-east projection and inserted two Perpendicular windows in the upper chamber above the arches. Neither the Wykeham descendants nor Richard Fiennes, who succeeded in 1528, had the desire or the necessary means to make further large-scale alterations, and were evidently well satisfied with what Leland described as a 'fair manor place'. (fn. 122) It was not until the mid16th century that Richard Fiennes, Lord Saye and Sele (d. 1573), transformed the ancient house into an Elizabethan mansion. Fiennes undertook his building operations while still a young man in 1554.
The alterations he made can be dated so exactly for two reasons: first there is the date 1554 on the chimney-shaft over the oriel window on the north front; secondly there is the evidence of the heraldry on the chimney-piece of the bedroom at the east end of the gallery which indicates that the room must have been built before 1556, the date of Richard Fienne's marriage. The heraldry in question consists of the crest of Danvers and the arms of Neville (i.e. the families of Richard's mother and his stepfather), whereas one would expect that the arms of Fermor would have been portrayed had the chimneypiece been made after 1556. Furthermore, the architectural details of the oriel are in the short-lived Italianate style of the 1550s which was inspired by French examples. Similar details are found at Broughton round the opening at the top of the eastern staircase and in the projecting sills on the inner side of the window in the second-floor room at the east end of the gallery. These sills rest on consoles or brackets of classical character. Moreover in the room known as the Star Chamber there is a chimney-piece surmounted by a plaster relief. The subject is a scene of Dryads dancing round an oak, identified by the inscription 'QUERCUM ERISICHTONIAM DRYADES CINXERE CHOREIS' as an illustration of Ovid, Metamorphoses VIII, 746. A relief representing the same scene formerly formed part of the decoration of the Galerie Francois I at Fontainebleau, and is known from an engraving by Boyvin. These features suggest that Richard Fiennes must have employed some of the craftsmen who executed similar work in England at Nonsuch (Surrey), Somerset House, Lacock Abbey (Wilts.) and Longleat (Wilts.). A further modernization of the house was carried on by Richard Fiennes (d. 1612 or 1613) after his father's death in 1573. The later work was in the usual Flemish Renaissance style of the late Elizabethan architecture.
The work carried out by the two men amounted to an almost complete remodelling of the principal rooms apart from the chapel. The medieval hall was given a flat ceiling and new windows; two floors were constructed above it and new staircases were made by adding two gabled projections on the south front. These staircases were themselves designed in accordance with the new square plan with wide treads and frequent landings. The south-west staircase rises to the Council Chamber in the top story, where William, Lord Saye and Sele, and his anti-royalist friends schemed against the government. The kitchen, buttery, and pantry were moved from the west end to buildings on the south side of the castle and the old screens passage of the medieval hall was done away with. Two symmetrical bay windows were added to the north front, the easternmost of which contains an entrance doorway in its west side. This arrangement of the entrance was unusual at this date though it later became common and is found at nearby Chastleton. Above the hall on the first floor there is a long gallery which evidently dates from this period, though its interior was remodelled in the 18th century. This appears to be the extent of the alterations carried out by the first Richard Fiennes by about 1570. In about 1598 his son Richard transformed the medieval west end, creating a range of two stories which balances the medieval east wing. This range contains little more than two great rooms, one on each floor. Each room is lit by mullioned and transomed windows of ample size. The ground-floor room (intended as a dining-room) is lined with contemporary wainscoting of unusually elaborate character. The plaster ceiling is correspondingly rich and ornate. The chimney-piece (14 ft. wide ü 6 ft. high) has above it a seascape painting in oils by Jan Pieters representing Charles II's departure from Scheveningen on his return to England in 1660. There is also an elaborate interior porch with a cartouche of the Fiennes quarterings and the motto Quod olim fuit meminisse minime juvat. The motto is reputed to have been added by William Fiennes (d. 1662) after the restoration of Charles II when he was doubtless anxious to obliterate the memories of his Parliamentarian past. The White Room above has a plaster ceiling decorated with roundels of heraldic birds and beasts and shields of arms. At the south end is a lozenge with the date 1599 on it while at the north end another lozenge has the initials R.E.F. for Richard Fiennes and Elizabeth, his second wife. The room lacks original woodwork of any kind and was, perhaps, never completed. Until the end of the 17th century there was much painted glass in the windows, but it was removed to Belvedere House (Kent) in about 1830. (fn. 123) The two doorcases in the Elizabethan style date from the 19th century.
Since about 1600 very little has been done structurally to the house. It suffered in the Civil War when it was besieged, (fn. 124) and among the minor repairs done afterwards were those to the gateway already mentioned. Later at the time of James Fiennes's death in 1674, the house, park, and gardens were described by Celia Fiennes as 'much left to decay and ruin'. (fn. 125) For the hearth tax of 1665 it had been assessed on 26 hearths, 1 fewer than Shirburn Castle and 8 fewer than Wroxton. (fn. 126) During most of the 18th century the Twisletons resided, (fn. 127) and to them must be attributed the Georgian Gothic decoration of the Library and the Gallery. But in the early 19th century the house was leased (fn. 128) and Brewer noted in 1819 that the rooms were 'daily dilapidating from misuse'. (fn. 129) It was not until 1848 that the owners again took up residence at Broughton. In the 1850s Frederick TwisletonWykeham-Fiennes employed Sir Gilbert Scott to carry out a careful restoration of the castle, (fn. 130) but leased it again a few years before his death in 1887. It remained in the occupation of tenants (fn. 131) until 1912, since when it has been the residence of successive Lords Saye and Sele. Grants for the restoration of the house and gatehouse were made by the Historic Buildings Council in 1955 and 1962. (fn. 132) Among the contents of the house that are of special historical importance is the diary of Celia Fiennes. In the hall are some fine 19th-century examples of the furnishing fabrics of the Shutford plush industry.
The effect of inclosure on the status of the villagers was marked. In return for the tenants' cooperation Sir Richard Fiennes substituted leasehold tenure for copyhold, at least at North Newington where he gave them 'all' leases. (fn. 172) He probably created a number of small freeholds also, for 7 people were said to hold land in chief in North Newington in the late 16th century. (fn. 173) Richard claimed that these changes were all to the benefit of the tenants and instanced increases in value by 1607 of three or four times the old value of 1589: e.g. one 60 a. holding had increased from £10 to £30 and the parsonage holding (50 a.) from £20 to £40. (fn. 174) Furthermore, he claimed that individual tenants 'now lived well' and 'brought up and bestowed their children well', and described Newington as a village where all had been tenants-at-will and 'lived poorly' but 'now live all welthily'. (fn. 175) The local farmer prospered still further in the later 17th century when Sir Richard's successors, unable to continue with large-scale demesne farming, because, no doubt, of their losses incurred during the Civil War, leased much of their estate.
One of the medieval rectors, Ralph de Bereford (1317–62), came of a knightly family and was probably related to the Broughtons. (fn. 287) His successor, Roger Gledston (1369–?1399) a Newington man, was wealthy enough to give Wroxton Priory a house and yardland and to enlarge his own rectory-house. (fn. 288) With Master John of Wykeham (1399–1415) (fn. 289) the parish began to have rectors who were university graduates but who were, at the same time, pluralists and often non-resident. One was dispensed to hold Broughton in plurality with a Norfolk rectory in return for repairing the churches and rectoryhouses of both parishes. (fn. 290) His successor, Thomas Broke, not only paid him to resign but in return for his presentation paid the patron's debts. (fn. 291) He was excommunicated for simony but in 1446 received papal absolution on condition that he spent a year's income from the church on its fabric. (fn. 292) The rector in 1518 and 1520 lived on another cure in Derbyshire; (fn. 293) he was charged with failing to maintain a lamp, to pay the deacon who served Broughton and to keep a bull and a boar for the use of the parish. (fn. 294) His successor paid a curate and also leased the living. (fn. 295) The curate, Richard Crowley, (fn. 296) was involved in a tithe dispute with a parishioner who accused him of favouring the supremacy of Rome and commanding his congregation to offer alms on 'relics' Sunday. (fn. 297) These charges were denied.
A second effigy of a knight, probably representing the founder's son John of Broughton (d. c. 1350) or his grandson Thomas of Broughton (d. c. 1375), wears plate armour of the time of Edward II or Edward III, and carries an uncharged shield. In c. 1800 this effigy was placed on a table tomb of 15th-century date. (fn. 344) The tomb bears the arms of Fiennes but it has not been discovered for whom it was made. In a canopied recess in the chancel there are 2 fine alabaster effigies of a knight and his wife. In 1805 they were lying on the ground sadly 'hacked and broke'. (fn. 345) The canopy of the chantry has been destroyed, but stone panelling of mid-15thcentury workmanship remains. This tomb is likely to be that of Sir Thomas Wykeham (d. 1443) and his wife. A fourth tomb, surmounted by muzzled bears supporting uncharged shields, may have been intended for Edward Fiennes (d. 1528). It was evidently unfinished and when the tomb was opened in the 19th century it was found to be empty. (fn. 346) William, Viscount Saye and Sele (d. 1662), and his wife Elizabeth (d. 1648) are commemorated by a marble table-tomb in the chancel. There are also numerous 17th-century and 18th-century inscriptions to other members of the Fiennes family, including Lawrence, Viscount Saye and Sele (d. 1742). There is a memorial to Charles Wyatt (d. 1821).
Methodism, too, had more success in North Newington than in Broughton; the rector attributed the growth of dissent to the hamlet's remoteness from the parish church. (fn. 380) A meeting-house in John Tysoe's house at Newington was registered in 1805 and the signatories' names suggest that they were Methodists. (fn. 381) In 1811 8 or 10 enrolled Methodists were meeting on a Newington farm, served occasionally by licensed travelling teachers. (fn. 382) In 1814 there were said to be 20 Methodists and in 1817 10 or 12 Methodist families. (fn. 383) In 1820, however, a private census listed 14 Methodists and 15 Calvinists. (fn. 384) No further reference to Methodists has been found.
Independents, probably the 'Calvinists' of the census, became predominant. In 1832 the minister of the Independent Church at Banbury registered a private house as a meeting-house and in 1837 a chapel was built at North Newington. (fn. 385) At the 1851 census there were congregations of 80 and 93 (including children), presumably gathered from neighbouring villages as well. (fn. 386) The rector's estimate of 30 must have applied to the congregation drawn from his parish alone. (fn. 387) The chapel was rebuilt in 1876. (fn. 388) North Newington members, however, appear to have been decreasing, for in 1866 there were an estimated 20 dissenters, and in 1878 only 3 or 4 families of them in the parish. (fn. 389) By 1963 the chapel was disused.
1. O.S. Area Bk. (1882); Census, 1961.
2. Bodl. MS. Rawl. D 892, f. 167.
3. O.R.O., S. & F. colln. (uncat.), Broughton incl. schedule and map. Until 1861 the Census Reports state that Broughton contained 1270 a. and North Newington 680 a., although at inclosure in 1805 the acreages were 939 and 1090 respectively.
4. O.S. Map 25" Oxon. V. 10–12, 14–16, IX, 3 (1st edn.); O.S. Map 6" SP 43 N.W., 44 S.W. (1955).
6. V.C.H. Oxon. ii. 318–19.
7. V.C.H. Oxon. i. 341 and map between pp. 266a– 267.
8. Agric. Research Council, Soil Survey Report, no. 9 (1956).
9. For the importance of Broughton's mills see p. 96 and Par. Rec., newspaper cutting.
10. Wood-Jones, Dom. Archit. Banbury Region, 2–3.
11. See maps of castle and park penes Lord Saye and Sele: (i) map of 1803 with additions of 1839 and 1845, (ii) map of 1848 by Davis and Saunders; P.O. Dir. Oxon. (1864). When C. F. Wyatt wrote (c. 1880), the park had been reduced to 22 a.: Bodl., Bradford pps. (uncat.), MS. notes, hereafter cited as Wyatt's MS. notes.
12. Ogilby, Britannia (1698), p. 7, pl. 23.
13. Bodl., Bradford pps. (uncat.).
15. Ibid. and Beesley, Hist. Banbury, 16, 332.
18. O.R.O., Cal. Q. Sess. vi; Beesley, Hist. Banbury, 16, 332.
19. O.R.O., Cal. Q. Sess. vi.
20. O.S. Map 25" Oxon. V. 15 (1st edn.).
21. P.N. Oxon. (E.P.N.S.), ii. 397; V.C.H. Oxon. ii. 328.
22. See map of 1685 penes Lord Saye and Sele (photostat at O.R.O.: Misc. Saye 1/1).
23. Ibid.; cf. 12 tenements and 5 cottages listed in a 17thcentury rental: MS. Rawl. D 892, f. 183.
24. Hearth Tax Oxon. 141.
25. The Broughton registers give the following figures: 1683–1693, 63 baptisms, 36 deaths; 1716–1726, 71 baptisms, 54 deaths; 1683–1755, 457 baptisms, 348 deaths; 1754–1812, 682 baptisms, 377 deaths; 1813–1870, 1,200 baptisms, 658 deaths.
27. MS. Oxf. Dioc. d 568.
28. Bodl., Bradford pps., valuation list.
29. V.C.H. Oxon. ii. 217; Census, 1801–1961.
32. Par. Rec., licence from Lord Saye and Sele to build on any part of the rectory ground; date 1694 on chimney stack.
33. Wyatt's MS. notes; Hearth Tax Oxon. 141.
35. Ibid.; MS. Oxf. Dioc. b 70, f. 145.
38. Bodl., Bradford pps., photograph taken shortly before the mill's demolition. The present house has a date stone, 1700.
40. Ex inf. Banbury R.D.C.; Oxf. Mail, 29 Mar. 1961.
41. O.S. Map 25" Oxon. V. 11 (1st edn.).
42. Secker's Visit.; MS. Oxf. Dioc. d 568.
43. V.C.H. Oxon. ii. 217; Census, 1911–61.
46. O.R.O., S. & F. colln., Broughton incl. schedule and map.
48. Hearth Tax Oxon. 141; E 179/164/504.
49. O.R.O., S. & F. colln., Broughton incl. schedule and map.
50. Gardner, Dir. Oxon. (1852); Dalby's house was mentioned in a late 16th-century survey: MS. Rawl. D 892, f. 169. For the dovecot see plate facing p. 182.
51. Wyatt's MS. notes. It was probably the 'Three Lions' mentioned above. By 1805 it was a farm-house: O.R.O., S. & F. colln., Broughton incl. schedule and map.
52. Bodl., Bradford pps. where there is also a 19thcentury water-colour.
55. Pps. of Capt. Hen. Stevens (O.R.S. xlii), ed. Margaret Toynbee, 27; D.N.B.
56. V.C.H. Oxon. i. 417; V.C.H. Yorks. ii. 145–6.
57. For the descent see J. H. Round in Hist. MSS. Com. Rutland, IV, 106.
58. Bracton's Note Bk. ed. Maitland, ii, p. 589; Bk. of Fees, 448.
59. Complete Peerage, xi. 96.
60. Rot. Welles, ii. 17.
61. V.C.H. Yorks. ii. 145–6.
62. Bracton's Note Bk. ed. Maitland, ii, p. 589.
63. Bk. of Fees, 1101.
64. C 148/86/106; D.L. 42/2, p. 43.
65. Cal. Inq. p.m. vi, p. 207.
66. G. Metcalfe, Broughton and N. Newington, 4; Cal. Inq. p.m. xi, p. 109.
67. e.g. C 139/113/16; C 140/541/45; C 142/50/91; C 142/167/72; C 142/333/50.
68. V.C.H. Oxon. i. 417.
69. Rot. Welles, ii. 17, 32; Emden, O.U. Reg. for the career of Belet.
70. V.C.H. Oxon. ii. 101.
71. Bk. of Fees, 824.
72. Cal. Chart. R. 1300–26, 1; Cal. Inq. p.m. vi, pp. 207–8.
73. C. Moor, Knights of Edw. I (Harl. Soc. lxxx), 152.
74. For the tomb see p. 100.
75. Cal. Inq. p.m. vi, pp. 207–8; Metcalfe, Broughton, 4; cf. Cat. Anct. D. ii. B 2723.
76. C.P. 25(1)/189/17/75, 76; for details see Metcalfe, Broughton, 6.
77. Cat. Anct. D. ii. B 3544; cf. E 326/8839–40.
78. Feud. Aids, iv. 178.
79. See p. 178; V.C.H. Warws. vi. 80.
80. Cur. Reg. R. v. 80; vii. 108.
81. Ibid. ii. 81; iii. 41, 334; v. 79–80, 171, 183–6; vii. 108; ix. 241, 381–2. For a full account see V.C.H. Warws. vi. 80.
83. Bk. of Fees, 824; V.C.H. Warws. vi. 80.
85. Cal. Chart. R. 1257–1300, 481.
86. Feud. Aids, iv. 178; D.N.B.
87. Feud. Aids, iv. 166.
89. E 326/4433; Cal. Inq. p.m. xi. p. 109.
90. Cal. Close, 1368–74, 476.
92. Cal. Close, 1368–74, 194.
93. Ibid. 1374–7, 528; ibid. 1377–81, 493; ibid. 1381–5, 128; ibid. 1385–9, 78; C.P. 25(1)/191/23/22.
94. C.P. 25(1)/191/24/24; for details see Metcalfe, Broughton, 7; D.N.B.
95. Cal. Chart. R. 1341–1417, 419.
97. C.P. 25(1)/293/71/336; Oxon. Visit. 296.
99. For the descent of that peerage see Complete Peerage, xi. 482 sqq.
100. C 140/541/45. Richard Fiennes's father Henry used the title of Lord Saye but was never summoned to parliament. The family's claim to hold the barony de facto was not admitted until 1603.
101. Cal. Pat. 1476–85, 44.
102. Cal. Inq. p.m. Hen. VII, ii, p. 272.
103. Ibid. ii, p. 401.
105. Complete Peerage, xi. 484.
109. Complete Peerage, xi. 485 and App. I where this 'confirmation' is discussed in detail. The fact that the barony was from 1603 able to descend to heirs of the body led to the later separation of the viscounty and the barony: see below.
110. Complete Peerage, xi. 485–6.
112. C.P. 25(2)/709/Trin. 29 Chas. II; ibid. 956/Trin. 1 Anne; Complete Peerage, xi. 488–90.
113. Complete Peerage, xi. 490.
118. For early drawings of the castle see illustration facing p. 114; Bodl. Gough Maps 44, nos. 70, 73; Buckler views of 1822 in MS. Top. Oxon. a 65, nos. 123, 125. The following account except where otherwise stated has been based on an account by W. H. St. J. Hope in Arch. Jul. lxvii, 382–6 and on an article by H. Avray Tipping in Country Life, Jan. 1930, pp. 50–57, 84–91, 126–134.
119. Measurements from Wood-Jones, Dom. Archit. Banbury Region, 28.
120. MS. Top. Oxon. c 394, p. 197.
121. Cal. Pat. 1405–8, 161; for the Wykehams see p. 88.
122. Leland, Itin. ed. Toulmin Smith, ii. 14.
123. MS. Rawl. B. 400b, ff. 143–147v.; Wyatt's MS. notes.
124. O.A.H.S. Proc. n.s. v. 281.
125. The Journeys of Celia Fiennes, ed. C. Morris, 25.
126. Hearth Tax Oxon. 141.
127. MS. Oxf. Dioc. d 568.
128. The tenants were George Cobb (c. 1810–30), William Bushe (c. 1830–37) and H. C. Wilson (1842–8).
131. The tenants were George Granville Leveson-Gower (1885–6), H. F. Gladwin (1886–96) and Lord Algernon Gordon Lennox (1896–c. 1912): Wyatt's MS. notes.
132. Oxf. Mail, 17 May 1962.
133. Acts of P.C. 1589–90, 414–417; ibid. 1591, 16, 17, 62; ibid. 1592, 106–107; ibid. 1595–6, 517; Cal. S.P. Dom. 1591–4, 2, 11, 253.
134. Trans. Birmingham & Midland Institute (1873), 88.
135. D.N.B.; for his opposition to ship-money levies see Cal. S.P. Dom. 1636–9, 121, 122.
136. Acts of P.C. 1623–5, 68, 81; D.N.B.; Cal. S.P. Dom. 1619–23, 487; ibid. 1623–5, 31, 168; 1636–9, 121, 122.
137. Clarendon, History of the Rebellion, ed. W. D. Macray, iii. 26.
140. Complete Peerage, xi. 488.
142. Poor Abstract, 398–9. The keeping of separate accounts by the churchwardens of Broughton and North Newington from at least 1719 suggests that the townships were then quite separate for all rating purposes: Par. Rec., chwdns' accts.
144. Par. Rec., vestry min. bk.
145. 2nd Rep. of Poor Law Commrs. App. E. H.C. 595–II, pp. 292–3 (1836), xxix (2).
146. Poor Law Unions, 21.
147. Par. Rec., surveyors' accts.
149. 2nd Rep. of Poor Law Commrs. App. E, H.C. 595–II, pp. 292–3 (1836), xxix (2).
150. Poor Law Unions, 21.
151. V.C.H. Oxon. i. 417. The recorded population is small and suggests that not all the village was included in the survey.
152. E 179/161/9. The 1306 assessment is incomplete and about a quarter of the sums in 1316 are illegible: E 179/161/10, 8.
153. S.C. 6/1118/10; cf. Cal. Inq. p.m. Hen. VII, ii, p. 272.
154. Bodl. MS. Rawl. D 892, f. 158.
155. E 179/161/196, 198. Elizabeth Fiennes married William West as her second husband.
156. B.M. Add. Roll 67029.
159. MS. Oxf. Archd. Oxon. b 40, f. 76.
161. Deduced from the acreages given in 1589; Bodl. MS. Rawl. D 892, f. 183.
162. MS. Oxf. Archd. Oxon. b 40, f. 76; Bodl. MS. Rawl. D 892, f. 183.
163. Bodl. MS. Rawl. D 892, f. 183.
167. Ibid. ff. 63v., 167.
170. MS. Wills Oxon. 18/2/13.
171. MS. Wills. Oxon. 4/3/21.
172. Bodl. MS. Rawl. D 892, f. 183v.
173. MS. Dunkin 438/2, f. 153.
174. Bodl. MS. Rawl. D 892, f. 183v.
176. Ibid. D 915, rentals 1674–85; ibid. D 892, ff. 243–55, rentals 1687–89.
177. Ibid. D 892, f. 250.
178. Ibid. ff. 243 sqq.; map penes Lord Saye and Sele, Broughton Castle.
179. Bodl. MS. Rawl. D 892, f. 248.
180. The Quakers' darkness avoiding the Scripture light (Oxon. 1569). This is printed with Wm. Fiennes, Folly and Madness made Manifest (Bodl. copy in Wood 645(13)).
181. e.g. MS. Wills Oxon. 4/3/21; 18/5/11; 20/4/35; 22/1/42; 23/1/19; 23/4/10; 24/1/32; 30/1/58; 37/4/10; 58/3/67; 65/4/38; 83/2/17; 116/1/31; 148/3/10; 161/3/27; 184, f. 353; 185, f. 17; 187, f. 63.
182. Ibid. 185, f. 17.
187. e.g. Par. Rec., tithe case of 1697; map of 1685, penes Lord Saye and Sele, Broughton Castle.
188. Deeds penes Lord Saye and Sele.
189. e.g. Bodl. MS. Rawl. D 915, f. 97.
190. MS. Wills Oxon. 18/5/11. For his tenure of demesne closes in Newington see e.g. Bodl. MS. Rawl. D 892, f. 248.
191. MS. Wills. Oxon. 18/5/11.
192. Bodl. MS. Rawl. D 892, f. 168.
193. Ibid. D 915, f. 99.
194. E 134/9 Wm. III/Trin. 6 Oxf.
195. e.g. MS. Wills Oxon. 161/3/27; 23/1/19; 184, f. 353.
197. MS. Top. Oxon. c 328, ff. 88–89.
198. O.R.O., land tax assess. 1785.
200. O.R.O., land tax assess. 1785–1800.
201. MS. Top. Oxon. c 128, ff. 84, 86, 87.
202. O.R.O., incl. award. The act was dated two years earlier: Newington Incl. Act, 43 Geo. III, c 119 (priv. act).
204. O.R.O., land tax assess. 1831.
207. Bodl., Bradford pps. (uncat.), valuation list (undated).
209. Bodl., Bradford pps. (uncat.), valuation list.
211. Ibid., article on woad; and see p. 96.
214. Orr, Oxon. Agric. 65.
217. Land Utilisation Survey (1943), pt. 56, 203.
218. Ex inf. Major J. F. Nicholson, Park Farm, Drayton.
222. Kelly's Dir. Oxon. (1920).
223. V.C.H. Oxon. i. 417; B.M. Add. Roll 67029.
225. B.M. Add. Roll 67029; cp. Bodl. MS. Rawl. D 915, ff. 6 sqq. for the same rent being paid in the 17th century.
226. C 1/1123/56; C 142/115/33; C 142/127/39; O.R.O. Misc. Br. I/iii/1.
227. Map penes Lord Saye and Sele, Broughton Castle; Davis, Oxon. Map (1797).
228. Bodl. MS. d.d. Oxon. c 7, 1792.
230. e.g. Bodl. MS. Rawl. D 892, ff. 6, 8, 12, 24v.; map of 1685 at Broughton Castle.
231. R. P. Beckinsale, 'Plush industry of Oxfordshire', Oxoniensia, xxviii. 65.
232. Bodl., Bradford pps. (uncat.): 1827 poor rate assess.
234. O.S. Map 25" Oxon., V. 15 (1st edn.); article by E. A. Walford in Banbury Advertiser, 12 Dec. 1901.
235. Bodl., Bradford pps. (uncat.): 1827 poor rate assess, and valuation list.
236. Gardner, Dir. Oxon.; Wyatt's MS. notes.
239. MS. Wills Oxon. 37/4/10.
240. Bodl., Bradford pps. (uncat.).
241. B.M. Add. Roll 67029.
242. For an account of the chronology of paper-mills see Rhys Jenkins, 'Early Papermaking in England, 1495– 1788', Library Assoc. Rec. II (ii). 479 sqq.
243. Shakespeare, II Henry VI, IV, vii.
244. e.g. Bodl. MS. Rawl. D 915, ff. 68v., 73, 75; ibid. D 892, ff. 246, 248, 250v., 252v., 254.
245. MS. Wills Oxon. 133/5/12; O.R.O., S. & F. colln. (uncat.).
246. N. Riding of Yorks R.O. ZKF/39.
247. cp. Bodl. MS. Oxon. Shutford, for a reference to him in 1795.
248. H. Carter, Wolvercote Mill, 70; O.R.O., land tax assess. 1831.
249. Bodl. G. A. Oxon. b 85a (27): Sale cat.
251. MS. dd. Oxon. c 7 (1793).
252. Billing, Dir. Oxon. (1854); Kelly's Dir. Oxon. (1869); Bodl. Bradford pps.; Harding, paper-maker of North Newington, occurs in the Broughton Register in 1856 and Mallins in 1854, 1859 and 1862.
253. Ex inf. Mr. J. F. Carter; a date stone on the mill-house records W.S. 1876, and a name plate over an adjacent shed, William Sellers, paper-maker.
254. Ex inf. Mr. J. F. Carter.
255. Kelly's Dir. Oxon. (1887).
257. Ex inf. Mr. G. Clark, the Mill House.
258. Some of the material for this section was kindly supplied by Frances Riddell Blount.
259. Rot. Welles, ii. 17.
261. Michael Belet presented in 1230 for his ward, John of Broughton: Rot. Welles, ii. 32 and see p. 87.
263. Linc. Reg. ii. 169.
264. MS. Oxf. Dioc. c 266, f. 142v.; see also C.P. 25(2)/ 1186/Mich. 8 Geo. II, a fine on the manor but not on the advowson.
265. MS. Oxf. Dioc. d 558; the presentation of Robert Harrison was in 1766 and his institution in 1771: ibid. d 740; b 21, f. 86. See also C.P. 25(2)/1388/Trin. 6 Geo. III, East. 8 Geo. III. The legal record of the suit has not been traced.
266. MS. Oxf. Dioc. d 746, 1806/4. The patron in 1805 was Wm. Curtis: O.R.O., incl. award.
267. See M.I. in church to Eliz. Bradford, daughter of Chas. Wyatt; Wyatt family papers: notes by M. L. Dix Hamilton penes Banbury Hist. Soc.
268. MS. Oxf. Dioc. c 1748, letters.
269. Cal. Papal Regs. v. 282.
270. Lunt, Val. Norw. 309; Tax. Eccl. (Rec. Com.), 31.
271. Feud. Aids. vi. 377; Valor Eccl. (Rec. Com.), ii. 163.
272. MS. Dunkin 438/2, f. 153.
273. Par. Rec., 1697 depositions. The original tithe agreement could not be produced and the case was based on a lease of 1615.
274. E 134/9 Wm. III/Mich. no. 8.
275. MS. Top. Oxon. c 128, ff. 84–84v., 86.
277. 43 Geo. III, c 119 (priv. act); O.R.O., incl. award.
278. Inq. Non. (Rec. Com.), 138.
279. MS. Oxf. Archd. Oxon. b 40, f. 76; undated terrier of time of H. Leigh (1596–1605), but referring to some years earlier.
280. Ibid. f. 77; Bodl., Bradford pps. (uncat.), 1805 copy of incl. schedule. For an exchange of land in 1796 see MS. Oxf. Dioc. c 434, ff. 125 sqq.
281. Bodl., Bradford pps., valuation lists.
282. MS. Oxf. Dioc. d 549, p. 161.
283. Rep. of Comm. on Eccl. Revenues, H.C. 54 (1835), xxii.
285. E 326/4433; V.C.H. Oxon. ii. 101.
286. Bodl., Bradford pps., transcripts; Chant. Cert. 30.
287. e.g. E 326/4433, where Sir Robert de Bereford is a witness. The arms of Bereford are among those depicted on the tomb of John (d. c. 1350) or Thomas (d. c. 1375) of Broughton in Broughton Church.
288. Cal. Pat. 1367–70, 338.
290. Cal. Papal Regs. vii. 203, 278; ibid. viii. 82, xi. 641.
291. Beesley, Hist. Banbury, 173.
292. Cal. Papal. Regs. ix. 561–2.
293. Visit. Dioc. Linc. (1517–31), i. 127; MS. Top. Oxon. c 394, p. 206.
294. Visit. Dioc. Linc. (1517–31), i. 127.
295. Valor Eccl. (Rec. Com.), ii. 163.
297. L. & P. Hen. VIII, xxii(2), pp. 196–7, 225.
298. Clarendon, Hist. of the Rebellion, ed. W. D. Macray, i. 241.
299. Seconde Parte of a Register, ed. A. Peel, ii. 136; MS. Rawl. D 872, f. 182. Crayker was Rector of Tadmarton from 1590: see p. 157.
300. MS. Oxf. Dioc. c 264, f. 19v.
301. M.I. in churchyard; Calamy Rev. 479.
302. Beesley, Hist. Banbury, 465.
304. MS. Wills Oxon. 176; Beesley, Hist. Banbury, 487 where he is mistakenly identified with the Vicar of Banbury of the same name.
305. Journeys of Celia Fiennes, ed. C. Morris, 179.
306. M.I. in chancel. For pedigree see Journeys of Celia Fiennes, xlvi.
308. For him see Wood, Fasti, ii. 348, where the names of his printed sermons are given.
309. Par. Rec., Broughton doc.
311. MS. Oxf. Dioc. d 555; Par. Rec., reg.
312. Perhaps this was The Sacrament: A plain and rational Institution (1751), by Edward Lewis, Rector of Waterstock.
313. MS. Oxf. Dioc. d 558.
314. Ibid. c 660, ff. 191–2; Par. Rec., reg.
315. MS. Oxf. Dioc. d 576.
316. MS. Top. Oxon. c 128, f. 97.
317. MS. Oxf. Dioc. b 70; ibid. c 660, f. 191, c 661, f. 21.
318. Ibid. d 550, f. 23.
319. Wilb. Visit.; MS. Oxf. Dioc. c 332.
321. For him see Who's Who in Oxon. (1936).
323. For 19th-century illustrations of the most notable features of the church see Buckler drawing in MS. Top. Oxon. a 65, no. 122 (S.E. view 1822); Skelton, Oxon. Bloxham Hund. plates 6, 7; and for modern photographs see Country Life, 11 Jan. 1930, pp. 56–7, and N.B.R.
324. For a drawing of the font see MS. Top. Oxon. a 65, no. 121 and Arch. Jnl. lxvii. 381 for an account.
325. Wyatt's MS. notes. This date was found on one of the timbers during the restoration of 1877.
326. Bodl. Bradford pps.; MS. Oxf. Archd. Oxon. d 13, f. 27; Par. Rec., chwdns' accts.
327. Par. Rec., chwdns' accts.
329. Bodl. Bradford pps.; Parl. ret. for rebuilding churches and cathedrals (1892), 116.
330. Bodl., Bradford pps: a water-colour of 1805 shows the weather moulding of the medieval roof.
332. Ibid.; Par. Rec., chwdns' accts.
333. MS. Oxf. Dioc. c 1748, faculties.
334. Ibid.; Oxf. Mail, 19 Nov. 1960.
335. Ex inf. Lord Saye and Sele.
336. Par. Colln. i. 59.
337. Ibid. 59–61; MS. Wood E 1, ff. 171–2.
338. Coll. Top. & Gen. iii. 235.
339. These are fully described in Lamborn, Armorial Glass, 114 sqq. (For an annotated copy with photos. see Bodl. 17031 e 17 and for tricks of the three shields see G. A. Oxon. 4° 688, p. 58b.) Photographs by P. S. Spokes are also in N.B.R.
342. Ibid. and drawings. For the blazons of the arms as seen today on the monuments see Bodl. G. A. Oxon. 4° 685, pp. 59–61; ibid. 4° 688, pp. 58–9; ibid. 16° 217, pp. 74–9. See plate facing p. 88.
343. Bodl. MS. Dugdale II, f. 156.
344. Bodl., Bradford pps., MS. notes by D. T. Powell and C. F. Wyatt.
345. Ibid. See plate facing p. 88.
347. Charles Boutell, Monumental Brasses (Lond. 1847), 48.
350. Par. Rec., chwdns' accts. It was repaired in 1788.
352. G. Metcalfe, Broughton, 4; C 143/212/22.
354. Cal. Papal Regs. v. 282.
355. Bodl. MS. Rawl. A 269, f. 50, which refers to a bull of Pope Boniface (i.e. probably Boniface IX (1389–1404)).
356. L. & P. Hen. VIII, xii (2), p. 225.
357. Bodl., MS. Rawl. A 269, f. 50.
359. MS. Oxf. Dioc. d 558; ibid. d 572.
360. Wm. Fiennes, Folly and Madnesse made Manifest (Oxf. 1659); ibid. The Quakers' Reply Manifested to be Railing (Oxf. 1660).
361. The Quakers' Reply Manifested to be Railing; MS. Sufferings.
365. For list of freeholders see Oxon. Q.M. Min. Bk. (1671–1746), sub anno 1679.
367. Ibid.; Besse, Sufferings, i. 567, 571.
368. Oxon. Q.M. Min. Bk. 1678, 1679, 1683, 1692.
369. Oxon. Q.M. Min. Bk. 1683, 1685; Banbury Prep. M. Min. Bk. (1696–1720).
370. Banbury Prep. M. Min. Bk. (1696–1720).
371. Plot, Nat. Hist. Oxon. 208.
374. O.R.O. Cal. Q.Sess. viii.
375. Secker's Visit; MS. Oxf. Dioc. d 558. In 1774 two Newington families were attending Shutford meetinghouse; ibid. d 564.
376. MS. Oxf. Dioc. b 37.
378. MS. Oxf. Dioc. d 570; the school was recorded in 1808: see p. 102.
379. Ibid. d 572; Bodl., Bradford pps. (uncat.): Gauthern's census. Visitation returns of 1817, 1820, and 1823 (MS. Oxf. Dioc. b 7) mention only two Quakers.
380. MS. Oxf. Dioc. d 576.
381. Ibid. c 644, no. 83.
383. Ibid. d 574, d 576.
384. Bodl., Bradford pps. (uncat.).
385. MS. Oxf. Dioc. c 645, nos. 52, 198.
388. Kelly's Dir. Oxon. (1920).
389. MS. Oxf. Dioc. c 332; ibid. c 334.
390. Educ. of Poor, 720; Educ. Enq. Abstract, 742; MS. Oxf. Dioc. c 332, b 70.
391. The school 'at Broughton' mentioned in the returns of mid-19th-century vicars is clearly that at North Newington: MS. Oxf. Dioc. c 332, c 335 and see below.
392. MS. Oxf. Dioc. d 707.
393. Ibid. d 574; Educ. Enq. Abstract, 742.
394. Educ. Enq. Abstract, 742.
395. Par. Rec., notebook of the rector, C.F. Wyatt, jnr.
397. MS. Oxf. Dioc. c 332; ibid. c 344.
399. Schs. Special Grants, H.C. 336, p. 57 (1892), lx; Pub. Elem. Sch. Ret. (1900), 674; List of Schs. (1902), 200.
400. Kelly's Dir. Oxon. (1920).
401. Ex inf. Oxfordshire County Council Educ. Cttee.
402. Ex inf. the rector.
403. 12th Rep. Com. Char. 208.
405. 12th Rep. Com. Char. 208.
406. Gen. Digest. Char. 12–13.
407. Char. Com., G file, accts.
408. 12th Rep. Com. Char. 208 sqq.
409. Char. Com., file E 79, 446; see above.
410. Char. Com. B 14, 939.
411. Ibid. E 72, 300.
412. Ibid., G file, accts.
413. Ibid. file E 79, 446.
414. Ibid., Unrep. vol. 276, p. 359.
415. Ibid.; Char. Com., file E 98, 495.
416. Ibid., G file, accts.

matches: V. V. V. v. v. v. V. v. v.


Plaintiff appeals a district court order affirming the Commissioner's decision denying her Social Security disability benefits.(1) She claims the Administrative Law Judge (ALJ) erred in determining she was able to perform her past work and denying her claim at Step 4 of the sequential decision making process. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing sequential process). At Step 4, the burden is on the claimant to establish that her impairment has rendered her unable to perform her past relevant work. See Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). "We review the Commissioner's decision to determine whether it is supported by substantial evidence and whether correct legal standards were applied." Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Substantial evidence is more than a scintilla; rather it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994) (further quotation omitted).
Plaintiff stopped working in June of 1996. She initially alleged disability as of 1989, but the ALJ determined that more recent earnings established she became reinsured as of July 1, 1996. Thus, her application was considered from that date forward; the date is not contested.
Although the record contains considerable evidence covering numerous medical conditions and complaints, all detailed at some length by the ALJ, plaintiff challenges only the determination, based on claimed difficulties using her hands, that she could return to her past accounting work. See Appellant's Br. at 6-7. We have carefully reviewed the record, the decision of the ALJ and the order of the magistrate judge, and conclude there is substantial evidence to support the Commissioner's determination.
In addition, our scope of review is limited to those issues plaintiff has properly preserved in the district court and adequately presented on appeal. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). "Absent compelling reasons, we do not consider arguments that were not presented to the district court." Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).
Here, plaintiff claims the ALJ failed to adequately satisfy the requirements of Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996), in determining that she could return to her past relevant work. However, our local rules require that "[f]or each issue raised on appeal, all briefs must cite the precise reference in the record where the issue was raised and ruled on." 10th Cir. R. 28.2(C)(2). Plaintiff has not included in her appendix her district court brief, nor, indeed, does she claim to have raised the issue below. More significantly, the magistrate judge did not address this argument in what appears to be an otherwise comprehensive review of the ALJ's decision. Accordingly, we can only assume that the issue was not raised below and is therefore not entitled to our consideration. See Crow, 40 F.3d at 324.
Accordingly, for substantially the reasons stated by the magistrate judge, the judgment of the district court is AFFIRMED.
1. The parties consented to proceed with this action before a United States magistrate judge under 28 U.S.C. § 636(c)(1), (3).


Petitioner challenges his 1955 conviction under 18 U.S.C. § 1001 for falsely and fraudulently denying affiliation with the Communist Party in an affidavit he filed with the National Labor Relations Board (NLRB), pursuant to § 9(h) of the National Labor Relations Act. Section 9(h), later repealed, provided that a union could not draw upon the jurisdiction of the NLRB unless each union officer filed with the NLRB an affidavit stating "that he is not a member of the Communist Party or affiliated with such party. . . ." The District Court set aside the conviction. It distinguished Dennis v. United States, 384 U. S. 855; decided that § 9(h), which had been upheld in American Communications Assn. v. Douds, 339 U. S. 382, could no longer be thought constitutionally valid, particularly in light of United States v. Brown, 381 U. S. 437, and concluded that the Government had no right to ask the questions which petitioner answered falsely in his affidavit. The Court of Appeals reversed, since it found "no significant differences" between this case and Dennis, supra, and therefore thought it unnecessary to consider the constitutionality of § 9(h).
1. The constitutionality of § 9(h) is legally irrelevant to the validity of petitioner's conviction under 18 U.S.C. § 1001, which punishes the making of fraudulent statements to the Government, Dennis, supra, because none of the elements of proof for petitioner's conviction under § 1001 has been shown to depend on the validity of § 9(h). Pp. 396 U. S. 68-72.
(a) The statutory term "affiliated," which petitioner claims is vague and overbroad and which he suggests he misunderstood, was narrowly defined by the trial court in an instruction later explicitly approved by this Court, and the jury's verdict reflects a determination that petitioner's false statement was knowingly and deliberately made. Pp. 396 U. S. 69-70.
(b) Petitioner's false statement was made in a "matter within the jurisdiction" of the NLRB, as the NLRB received the affidavit pursuant to explicit statutory authority, which, only a short time before, had been upheld as constitutional in Douds, supra. Pp. 396 U. S. 70-71.
2. Dennis, supra, negates any general principle that a citizen has a privilege to answer fraudulently a question that the Government should not have asked. P. 396 U. S. 72.
3. This case is not distinguishable from Dennis, supra, which is followed here. Pp. 396 U. S. 72-73.
On the Government's appeal, the Ninth Circuit reversed because it found "no significant differences" between this case and Dennis, and it therefore thought it unnecessary to consider the constitutionality of § 9(h). 403 F.2d 340 (1968). We granted certiorari, 393 U.S. 1079 (1969), and we now affirm.
to offend the Due Process Clause of the Fifth Amendment. We do not decide whether § 9(h) -- now repealed for over 10 years -- would today pass constitutional muster, and whether Douds would be reaffirmed. Guided by Dennis v. United States, supra, we hold that the question of whether § 9(h) was constitutional or not is legally irrelevant to the validity of petitioner's conviction under § 1001, the general criminal provision punishing the making of fraudulent statements to the Government.
"The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners' fraud. It is not an action to enforce the statute claimed to be unconstitutional."
384 U.S. at 384 U. S. 867.
or duress. Insofar as petitioner in this collateral proceeding attempts to suggest the contrary, [Footnote 8] he is simply trying to impeach the jury's verdict, upheld after careful review on direct appeal.
Notwithstanding the fact that the Government has proved the elements necessary for a conviction under § 1001, the petitioner would have us say that the invalidity of § 9(h) would provide a defense to his conviction. But, after Dennis, it cannot be thought that, as a general principle of our law, a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions [Footnote 12] -- lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
a purported compliance with [§ 9(h) was] designed to avoid the courts, not to invoke their jurisdiction."
384 U.S. at 384 U. S. 865.
Petitioner also attempts to distinguish Dennis on the ground that the behavior involved in the present case was less culpable than that found punishable in Dennis, and that this petitioner, unlike the petitioners in Dennis, did not "flout" the law, for he had "every right to believe" that he had not perjured himself. If, apart from attempting to impeach the jury's verdict, see n 8, supra, petitioner is suggesting that the principles of Dennis depend on an assessment of moral culpability beyond the jury's determination of guilt, he simply misconceives the basis of Dennis. Dennis can hardly be read as instructing courts to impose an extra punishment on a defendant found to have been dishonest by refusing to consider a constitutional argument that is legally relevant to his defense. Dennis refused to reconsider Douds because of the legal conclusion that the constitutionality of § 9(h) was not relevant to the validity of the conspiracy prosecution.
Petitioner finally contends that the Court should not follow Dennis, because "its strictures . . . have no relevance at all to post-conviction proceedings." Of course, federal courts have jurisdiction to consider constitutional claims on collateral review, but a substantive defense that is not legally relevant on direct review becomes no more relevant because asserted on collateral review.
"that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of [§§ 286, 287, 1001, 1022, and 1023 of Title 18] shall be applicable in respect to such affidavits."
After his conviction, petitioner had been sentenced to five years' imprisonment and a $10,000 fine. He had served almost two years of his sentence before being paroled in December, 1959. Because only $2,000 of his fine had been paid, however, petitioner had not yet been discharged from his parole status when he commenced the present proceedings in 1967.
The jury acquitted petitioner of the separate charge that he had fraudulently denied that he was a "member" of the Communist Party.
Section 504, Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 504.
"I tried to think of some analogy which would make that possibly clearer to you, and the best one I can think of -- we have all in our experience probably heard of a man and woman who live together but are not married. They are husband and wife in everything but name only. You have probably heard that expression. A person, to be affiliated with the Communist Party within the meaning of that term as used in the Second Count of the indictment, must be a member in every sense and stand in the relationship of a member in every sense but that of the mere technicality of being a member, -- in everything but name."
Bryson v. United States, 238 F.2d at 664 n. 8.
Petitioner claims that he did not know that his relationship with the Communist Party amounted to affiliation, and that he signed the affidavit submitted to the Board after counsel had advised him that he was not at the time "affiliated." This is apparently the same claim he made in an affidavit prepared in connection with his motion to reduce his sentence. At his trial, however, petitioner did not take the stand, and his unproved allegations are not even found in the record upon which the jury found him guilty.
In concluding that the Board had no jurisdiction for purposes of § 1001, the District Court reasoned that, if § 9(h) were unconstitutional, the Board was not performing one of its "authorized functions," a phrase taken from United States v. Gilliland, 312 U.S. at 312 U. S. 93. By taking Gilliland's unelaborated reference to "authorized functions" out of context, the District Court gave that phrase a meaning both unsupported by the holding and inconsistent with the spirit of that decision. The holding of Gilliland that there need be no "pecuniary . . . loss to the government" in order to punish fraudulent behavior was based on the Court's concern that the statute be given a broad reading in order to protect the Government "from the perversion which might result from the deceptive practices described," ibid.
"had no power to adjudicate rights, establish binding regulations, compel the action, or finally dispose of the problem giving rise to the inquiry."
Id. at 365, 368. We have no occasion in the present context either to approve or disapprove Friedman's holding.
We have no need to decide in this case whether jurisdiction would exist under § 1001 if, at the time the request for information was made, a court had already authoritatively determined that the statutory basis was invalid. Cf. United States v. Kapp, supra.
For two examples of how the constitutional validity of § 9(h) could be raised, see American Communications Assn. v. Douds, 339 U.S. at 339 U. S. 385-387.
In support of the contention that Dennis was meant to apply only to conspiracy charges, and not simply to § 1001 violations, both the District Court and petitioner here quote the language in Dennis to the effect that: "It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge." 384 U.S. at 384 U. S. 860. That language, however, was addressed to the threshold question that the Court faced in Dennis, namely, whether the facts alleged in the indictment were sufficient to warrant a conspiracy charge, which requires elements additional to those necessary for a violation of § 1001.
representations" in any matter "within the jurisdiction" of the National Labor Relations Board. Former § 9(h) of the Labor Management Relations Act, 1947, 29 U.S.C. § 159(h) (1958 ed.), barred a union from using the services of the Board unless and until each of the union's officers had filed his affidavit that he was neither a member of nor affiliated with the Communist Party. The basic question in this proceeding under 28 U.S.C. § 2255 is whether, constitutionally speaking, it was "within the jurisdiction" of the Board to require the filing of those affidavits.
Obviously the power of Congress to authorize prosecution for crimes of this character must rest on an interference with or obstruction of some "lawful" function of the agency in question. See United States v. Johnson, 383 U. S. 169, 383 U. S. 172. Apart from constitutional problems, the question of what is "within the jurisdiction" of an agency should be construed in a restrictive, not an expansive, way. The Court of Appeals for the Eighth Circuit so held in Friedman v. United States, 374 F.2d 363, when it ruled that telling a falsehood to the FBI in its role as "investigator" was not "within the jurisdiction" of that agency in the sense of § 1001. If it were, then telling lies to agencies would carry heavier penalties than committing perjury in court. 374 F.2d at 367.
The words "within the jurisdiction" must be read not only with the common sense approach of Friedman, but also in light of our constitutional regime. One of many mandates imposed on Congress by the Constitution is the prohibition against bills of attainder. Art. I, § 9.
"Attempts of the courts to fathom modern political meditations of an accused would be as futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs."
Id. at 339 U. S. 437.
"[E]fforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct, and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues."
Id. at 339 U. S. 438.
From this opinion, I conclude that Mr. Justice Jackson did not reach the bill of attainder point in Mr. Chief Justice Vinson's opinion. And MR. JUSTICE BLACK dissented. Id. at 339 U. S. 445.
So I conclude that no more than three members of the Court (Vinson, C.J., and Reed and Burton, JJ.) ever held that § 9(h) was constitutional against the challenge that it was a bill of attainder.
of a labor union. The Vinson opinion in Douds upheld § 9(h) on the basis that it was "intended to prevent future action, rather than to punish pas action." 339 U.S. at 339 U. S. 414. In Brown, it was likewise argued that the statute there involved was "preventive, rather than retributive, in purpose." 381 U.S. at 381 U. S. 457. That view was rejected. The question, we said, was whether § 504 inflicted "punishment," which, we pointed out, "serves several purposes: retributive, rehabilitative, deterrent -- and preventive." Id. at 381 U. S. 458. The dissenters -- Mr. Justice Clark, MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE WHITE -- concluded that Douds was "obviously overruled." Id. at 381 U. S. 464-465. Whatever may be said technically about any remaining vitality of the Douds case, it obviously belongs to a discredited regime, though, like Plessy v. Ferguson, 163 U. S. 537, it has never been officially overruled.
The rule invoked by the Court to deny petitioner the opportunity to challenge that bill of attainder in this proceeding is, as stated by MR. JUSTICE BLACK in his separate opinion in Dennis v. United States, 384 U. S. 855, 384 U. S. 878, "a new court-made doctrine." As he pointed out in that opinion, the prior decisions of this Court relied on to deny the defense of unconstitutionality of a federal law were instances of false claims for benefits to which the complainant had "no possible right, whether the statute was constitutional or unconstitutional." Ibid.
In this case, however, Congress installed an unconstitutional barrier to receipt of the benefits administered by the Labor Board. Since § 9(h), in light of Brown, was plainly unconstitutional, petitioner's union was entitled to those services without the filing of any affidavit. Therefore, unlike prior cases, the United States had been deprived of nothing and defrauded of nothing by the filing of any affidavit or other form of claim.