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i

OXFORD CONSTITUTIONAL THEORY

Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker

Religion, Law, and Democracy

ii

OXFORD CONSTITUTIONAL THEORY

Series editors:
Martin Loughlin, John P. McCormick, and Neil Walker

Oxford Constitutional Theory has rapidly established itself as the primary

point of reference for theoretical reflections on the growing interest in consti-
tutions and constitutional law in domestic, regional and global contexts. The
majority of the works published in the series are monographs that advance
new understandings of their subject. But the series aims to provide a forum
for further innovation in the field by also including well-​conceived edited
collections that bring a variety of perspectives and disciplinary approaches to
bear on specific themes in constitutional thought and by publishing English
translations of leading monographs in constitutional theory that have origi-
nally been written in languages other than English.

ALSO AVAILABLE IN THE SERIES

Constituent Power and the Law The Three Branches

Joel Colón-​Rios A Comparative Model of Separation
of Powers
Euroconstitutionalism
Christoph Möllers
and its Discontents
Oliver Gerstenberg The Global Model of Constitutional
Rights
Beyond the People
Kai Möller
Social Imaginary and Constituent
Imagination The Twilight of Constitutionalism?
Zoran Oklopcic Edited by Petra Dobner and
Martin Loughlin
The Metaethics of Constitutional
Adjudication Constitutional and Political Theory
Boško Tripković Selected Writings
Ernst-​Wolfgang Böckenförde
The Structure of Pluralism
Edited by Mirjam Künkler and
Victor M. Muniz-​Fraticelli
Tine Stein
Law and Revolution Constituting Economic and
Legitimacy and Constitutionalism Social Rights
After the Arab Spring Katharine G. Young
Nimer Sultany
Constitutional Referendums
Constitutionalism: The Theory and Practice of Republican
Past, Present, and Future Deliberation
Dieter Grimm Stephen Tierney
After Public Law Carl Schmitt’s State and Constitutional
Edited by Cormac Mac Amhlaigh, Theory: A Critical Analysis
Claudio Michelon, and Neil Walker Benjamin A. Schupmann
iii

Religion, Law, and Democracy

Selected Writings

Ernst-​Wolfgang Böckenförde
Professor Emeritus, University of Freiburg
and
Former Judge of the Federal Constitutional Court of Germany

Edited by
Mirjam Künkler
Research Professor, Netherlands Institute for Advanced Study
and
Tine Stein
Professor of Political Theory, University of Göttingen

VOLUME II

••

1
iv

1
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© E.W. Böckenförde, M. Künkler, and T. Stein 2020
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for Humanities and Social Sciences from Germany, a joint initiative of the Fritz Thyssen Foundation, the
German Federal Foreign Office, the collecting society VG WORT and the Börsenverein des Deutschen
Buchhandels (German Publishers & Booksellers Association).
v

Preface

Ernst-​Wolfgang Böckenförde passed away on 24 February 2019. Family, friends,

and colleagues travelled from far and wide to pay their last respects at his
funeral, held near Freiburg im Breisgau.
As might be expected, former colleagues and students praised his intellec-
tual brilliance, his originality, his discipline, his loyalty, his many contributions
to public life in Germany and his ethos in office—​as a scholar, constitutional
court judge, and public intellectual. But one of the more surprising aspects of
the event was the speech given by a local politician of the Social Democratic
Party who reminded the audience of ‘Böckenförde the citizen’. As soon as he
moved to the small village of Au in 1976 upon accepting a professorship at the
University of Freiburg, Böckenförde joined the local choir and the music asso-
ciation. He was a frequent participant in church fairs and town festivals and an
ardent interlocutor, asking his neighbours about the ebbs and flows of local
public life from kindergarten construction to zoning plans, and, of course,
offering his own opinions. In short, Böckenförde lived ‘in the neighbourhood’.
To locals, he was the ‘Verfassungsrichter zum Anfassen’ (the constitutional
court judge at your fingertips). Living in the neighbourhood was one of his
ways of working on behalf of the ‘integration’ of society, one of the phenom-
ena he was fascinated by and grappled with most: how to create understanding
in society, relations, exchange, solidarity, cohesion, and in the end ‘agreement
on the things that cannot be voted upon’, a phrase coined by jurist Adolf Arndt
that Böckenförde cited frequently. After all, Böckenförde was deeply convinced
that democracy cannot survive unless the citizens of that democracy as a politi-
cal community work continuously towards agreement on those things that lie
beyond the ballot box.
Three years have passed since the publication of the first volume of English
translations of Böckenförde’s writings, containing many of his articles on legal
and constitutional issues. Just before the publication of the first volume, we
convened two international conferences whose contributions were later pub-
lished in three special journal issues: ‘The Secular State, Constitution, and
Democracy: Engaging with Böckenförde’ in Constellations: An International
Journal of Critical and Democratic Theory 25(2) (2018); ‘Böckenförde beyond
Germany’ in the German Law Journal 19(2) (2018); and ‘Böckenförde as an Inner-​
Catholic Critic’, in the Oxford Journal of Law and Religion 7(1) (2018).
Many excellent scholars from the fields of law, political theory, and history
contributed to the conferences and to these later publications. The international
exchanges also elicited the insight that Böckenförde’s work enjoyed surprising
vi

vi • Preface
reception literatures in languages other than German. This led to a further con-
ference, convened in February 2019, on the reception of Böckenförde’s work in
Japan, Korea, Latin America, and Southern and Eastern Europe. Contributions
to this third conference were published as Beiheft Nr. 24, titled ‘Die Rezeption
der Werke Ernst-​ Wolfgang Böckenfördes in international vergleichender
Perspektive’, of the journal Der Staat, a journal Böckenförde had co-​founded
in 1962.
As we prepared the publication of this volume, brilliant friends and col-
leagues once again provided immeasurable help with comments and advice.
They include David Abraham, Markus Böckenförde, Dieter Gosewinkel,
Michael J. Hollerich, Olivier Jouanjan, Oliver Lepsius, Reinhard Mehring, Ulrich
K. Preuß, and Julian Rivers. We are deeply grateful to them.
Ernst-​Wolfgang Böckenförde shared his thoughts on the selection of arti-
cles for both volumes and until the end of 2018 was available to meet with us
and communicate in other ways whenever we sought clarification. We are very
grateful for those opportunities. In April 2017 we convened a launch of Volume
I for him at the University of Freiburg, an event which many of his former
colleagues at the university as well as other legal scholars and practitioners
attended, and which appeared to give him great pleasure.
Other launch events were held at New York University Law School, the
Humboldt University Berlin, Uppsala University, the University of Kiel, the
Institute for Human Sciences in Vienna, the London School of Economics and
Political Science, and at conferences of the German Studies Association and the
International Society for Public Law. We thank our colleagues who hosted these
events and discussed Böckenförde’s writings there, including Robert Alexy,
Andreas von Arnauld, Peter Carl Caldwell, Iain Cameron, Sabino Cassese, Max
Edling, Dieter Gosewinkel, Ludger Hagedorn, Michaela Hailbronner, Anna
Jonsson Cornell, Olivier Jouanjan, Mattias Kumm, Martin Loughlin, Aline-​
Florence Manent, Johannes Masing, Ralph Michaels, Kai Möller, Christoph
Möllers, Jo Eric Khushal Murkens, Claus Offe, Julian Rivers, Mark Edward Ruff,
Sascha Somek, Guglielmo Verdirame, Rainer Wahl, and Christian Waldhoff.
As with Volume I, we have been fortunate to employ the services of Thomas
Dunlap for the translation. Due to the range of topics and multiple disciplinary
perspectives involved, the translation was a particularly challenging one. We
thank Thomas Dunlap for mastering this task so skilfully.
We thank Oxford University Press, especially Eve Ryle-​Hodges and Imogen
Hill, for guiding this publication along with such generous dedication and sup-
port. We further thank Geisteswissenschaften International for partially fund-
ing the translations for this volume, and Verena Frick and Sven Altenburger,
both of the University of Göttingen, for their assistance in the preparation of
this volume.
Wherever it seemed necessary, we have inserted annotations (indented and
marked with Latin numerals) that include further explanations on the context
of German or European politics and history. A comprehensive list of Ernst-​
Wolfgang Böckenförde’s publications is included in the appendix, as well as the
vii

Preface • vii
laudatio given by former Federal President Joachim Gauck on the occasion of
awarding Böckenförde the Grand Cross of Merit of the Federal Republic of
Germany.
As this project comes to an end, we marvel at the intellectual journey Ernst-​
Wolfgang Böckenförde has moved us to undertake. It has been an honour and
inspiration, not only to work closely with his texts and to try to understand
better how he reconciled his identities as a social democrat, a political liberal,
and a Catholic reformer, but also to enter into conversation with so many of his
explicit and implicit interlocutors. These work in disciplines as diverse as legal
theory, legal history, constitutional law, legal education, social history, Catholic
theology, Catholic social thought, canon law, political theory, intellectual his-
tory, social policy, sociology, comparative politics, philosophy, legal ethics, and
diverse geographies. The conversations will continue as Böckenförde continues
to move his readers into profound intellectual engagement. We are grateful to
him, as we editors are to each other, for the exciting journey travelled together.
Mirjam Künkler and Tine Stein, December 2019.
viii
ix

Table of Contents

Translator’s Note  xi
by Thomas Dunlap

Freedom in Religion, Freedom in the State: Ernst-​Wolfgang

Böckenförde on Religion, Law, and Democracy  1
by Mirjam Künkler

PART I: CATHOLIC CHURCH AND

POLITICAL ORDER
Böckenförde on the Relation of the Catholic Church and
Christians to Democracy and Authoritarianism  46
by Mirjam Künkler and Tine Stein

Chapter I. The Ethos of Modern Democracy and the Church [1957]  61

Chapter II. German Catholicism in 1933: A Critical Examination [1961]  77
Chapter III. Types of Christian Conduct in the World during the Nazi
Regime [1965/2004]  105
Chapter IV. Religious Freedom between the Conflicting Demands
of Church and State [1964–​79]  115

PART II. STATE AND SECULARITY

Böckenförde on the Secular State and Secular Law  138
by Mirjam Künkler and Tine Stein

Chapter V. The Rise of the State as a Process of Secularization [1967]  152

Chapter VI. The Fundamental Right of Freedom of Conscience [1970]  168
Chapter VII. Remarks on the Relationship between State and Religion
in Hegel [1982]  199
Chapter VIII. The Secularized State: Its Character, Justification, and
Problems in the Twenty-​first Century [2007]  220
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x

x • Table of Contents
PART III. ON THE THEOLOGY OF LAW
AND POLITICAL THEORY
Böckenförde on the Relationship Between Theology, Law,
and Political Theory  238
by Mirjam Künkler and Tine Stein

Chapter IX. Political Theory and Political Theology: Comments on their

Reciprocal Relationship [1981]  248
Chapter X. Reflections on a Theology of Modern Secular Law [1999]  259
Chapter XI. A Christian in the Office of Constitutional Judge [1999]  280
Chapter XII. On the Authority of Papal Encyclicals: The Example of
Pronouncements on Religious Freedom [2006]  288

PART IV. BASIC NORMS AND THE PRINCIPLE

OF HUMAN DIGNITY
Böckenförde on the Right to Life, Human Dignity,
and its Meta-​positive Foundations  308
by Mirjam Künkler and Tine Stein

Chapter XIII. Abolition of Section 218 of the Criminal Code? Reflections

on the Current Debate about the Prohibition of Abortion in
German Criminal Law [1971]  318
Chapter XIV. Human Dignity as a Normative Principle: Fundamental
Rights in the Bioethics Debate [2003]  339
Chapter XV. Will Human Dignity Remain Inviolable? [2004]  354

PART V. BÖCKENFÖRDE IN CONTEXT

Chapter XVI. Biographical Interview with Ernst-​Wolfgang
Böckenförde [2011]  369

Appendix 1: List of Original Titles  395

Appendix 2: Ernst-​Wolfgang Böckenförde: List of Publications  397
Appendix 3: Address given by Federal President Joachim Gauck on
the Occasion of Awarding the Grand Cross of the Order
of Merit of the Federal Republic of Germany to
Prof. Dr. Ernst-​Wolfgang Böckenförde on 29 April 2016
at Schloss Bellevue  445
Index  449
xi

Translator’s Note

This project has been a team effort from beginning to end. Translating legal
German into English is a notoriously difficult task. I am grateful that I was able
to draw on some previous translations by J. A. Underwood. Mirjam Künkler and
Tine Stein read each chapter very carefully and made many crucial improve-
ments. I was very fortunate, indeed, to have had such conscientious and skilled
collaborators.
Thomas Dunlap, February 2018
xii
1

Freedom in Religion, Freedom in the State

Ernst-​Wolfgang Böckenförde on Religion, Law,
and Democracy1
Mirjam Künkler

I. Introduction
The freedom of the individual can always only be defended as the freedom of
all. Thus argued Ernst-​Wolfgang Böckenförde at the age of thirty-​one, in an
article he himself later referred to as the article that most shaped his thinking.2
He wrote this apropos the Catholic Church’s approach to democracy in the
postwar years before Vatican II,3 which he regarded as driven by instrumentalist
considerations. The Church was willing to accept majority rule only as long as
the areas relevant to its own interests (education, value debates, the Church’s
status vis-​à-​vis the state) remained beyond the reach of majority rule. What is
more, it claimed religious freedom for itself, without being willing to grant the
same rights to other religions. Böckenförde had particular trouble understand-
ing such a position as a lawyer. How can one expect to enjoy a right that one is
not willing to grant to others, he asked.4
Freedom is a cornerstone in Böckenförde’s thinking, but what does it entail
precisely? For Böckenförde, it is first and foremost individual freedom, and it
must be protected against both state power and societal power. State power
must be limited by a democratic constitution with strongly enshrined personal

1
This chapter has benefited from numerous discussions with my friend and colleague Tine Stein, as well as
our past joint publications. I thank her as well as Peter C. Caldwell, Michael Hollerich, Otto Kallscheuer, and
Joachim Wieland for excellent comments.
2
Ernst-​Wolfgang Böckenförde, ‘German Catholicism in 1933’, CrossCurrents 11 (1961), pp. 283–​303, included
as Chapter II in this volume. See in this regard in particular his reflections on the article in ‘Vorbemerkung’,
in Ernst-​Wolfgang Böckenförde, Kirche und christlicher Glaube in den Herausforderungen der Zeit, 2nd ed.
(Münster: LIT Publishing House, 2007), p. 114.
3
The Second Vatican Council (Vatican II) fundamentally redefined the Church’s doctrinal position in several
areas, notably regarding the issue of religious freedom. See more extensively note 120.
4
Ernst-​Wolfgang Böckenförde, ‘Religionsfreiheit als Aufgabe der Christen [1965]’, in Böckenförde 2007
(note 2), pp. 197–​212.
2

2 • Freedom in Religion, Freedom in the State

rights and liberties. ‘The law-​based state [Rechtsstaat],’ Böckenförde writes, ‘is
aimed at the demarcation and restriction of state power in the interest of the
freedom of the individual.’5 As he outlined in his article ‘Securing Freedom
Against Societal Power’, it is also the state’s role to protect the individual against
the violation of his or her freedom by societal groups.
Based on this dual role assigned to the state, one might conclude then that
the state is the supreme guarantor of freedom for Böckenförde.
On the one hand, this is certainly the case, and Böckenförde is Hegelian in
regarding the liberal state, in particular the rule of law, as the necessary envir-
onment in which individual freedom can be enjoyed. This is so because only
thanks to a rule of law can individual freedom be guaranteed against encroach-
ment by others and state power itself. Moreover, the kind of freedom the liberal
state ensures is not merely freedom from oppression, but it must also include
the creation of possibilities in which the individual can pursue self-​realization,
should he or she choose to do so.6
Böckenförde goes beyond Hegel when he argues that self-​realization can
only be possible in a state where in the final analysis people are subject to the
rules they have had the possibility to generate and shape, that is, a liberal dem­
ocracy. It is here that Böckenförde draws heavily on the legal scholar Herman
Heller.7 For the state emanates from the people and is first and foremost an ‘orga­
nized unity of action and taking effect’ (organisierte Handlungs-​und Wirkeinheit).
It provides the procedures and channels for social forces to determine policy.
Moreover, it is only through citizen participation and representation that the
state enjoys legitimacy.
Böckenförde is also a statist in his position on how to deal with the coun-
teracting forces of capitalism and democracy. In several writings, Böckenförde
emphasized that the guarantee of private property in the German Basic Law
had to be understood as balancing liberal guarantees on the one hand with
limits on those guarantees emanating from societal or public needs on the
other.8 A concept of the state according to which fundamental rights restrict

5
‘Der Rechtsstaat zielt stets auf die Begrenzung und Eingrenzung staatlicher Macht im Interesse der Freiheit
der Einzelnen’, in Ernst-​Wolfgang Böckenförde, ‘Entstehung und Wandel des Rechtsstaatsbegriffs’, in
Horst Ehmke and Carlo Schmid (eds.), Festschrift für Adolf Arndt zum 65. Geburtstag (Hamburg: Europäische
Verlagsanstalt, 1969), pp. 53–​76; published in English as ‘The Origin and Development of the Concept of
the Rechtsstaat’ in Ernst-​Wolfgang Böckenförde, State, Society and Liberty: Studies in Political Theory and
Constitutional Law, transl. by Jim Underwood (New York: Berg Publishers, 1991), pp. 47–​70.
6
Ernst-​Wolfgang Böckenförde, ‘The State as an Ethical State’, included as Chapter III in volume I of this
edition, Ernst-​Wolfgang Böckenförde, Constitutional and Political Theory: Selected Writings, ed. Mirjam Künkler
and Tine Stein (Oxford: Oxford University Press, 2017), pp. 86–​107.
7
Hermann Heller, Gesammelte Werke, 2nd ed., vol. II. (Tübingen: Mohr Siebeck, 1992 [1928]). On the extent
to which Böckenförde’s concept of the state relies on Hermann Heller, see Mirjam Künkler and Tine Stein,
‘Böckenförde’s Political Theory of the State’, in volume I of this edition, pp. 38–​53; and Olivier Jouanjan,
‘Between Carl Schmitt, the Catholic Church, and Hermann Heller: On the foundations of democratic theory
in the work of Ernst-​Wolfgang Böckenförde’, Constellations: An International Journal of Critical and Democratic
Theory 45 (2) (2018), pp. 184–​195.
8
‘Eigentum, Sozialbindung des Eigentums, Enteignung’, in Konrad Duden, Helmut R. Külz et al. (eds.),
Gerechtigkeit in der Industriegesellschaft. Rechtspolitischer Kongreß der SPD, Mai 1972 in Braunschweig.
3

Introduction • 3
state action, he wrote about the Basic Law, is at the same time constrained by a
concept of the state according to which constitutional principles entail the duty
to provide social services. Constitutionally guaranteed freedom could not be
enjoyed unless specific material needs were met first. If liberty were to be guar-
anteed to all rights holders, specific societal and legal framework conditions had
to be provided for, the most important of which was ‘the constant relativization
of societal inequality that arises continually from the exercise of liberty’. The
Basic Law in fact imposed a ‘social state as a binding constitutional principle on
par with that of the Rechtsstaat’,9 he argued.
On the other hand, Böckenförde is not exclusively a statist, and here again,
his position draws in part on Hegel. For the liberal state needs binding forces
that ‘hold it’. In Hegel, this is an abstract Geist—​attitudes and dispositions that
support the liberal state. Böckenförde grounded these attitudes and dispositions
in societal forces and individuals. Like Hegel, he referred to this as an ‘ethos’
that needed to feed the commons. These binding forces needed to emanate
from the citizenry and the citizenry’s willingness to continually work with one
another to formulate and secure the public good. Thus, Böckenförde’s entire
state theory stands and falls with the ethos that emanates from society and that
is needed to sustain the state. As he formulated in his often-​quoted dictum: ‘the
liberal, secularized state is sustained by conditions it cannot itself guarantee’.10
What are the sources of this social ethos, in Böckenförde’s eyes? Religion,
that is personal faith, can be an important source and it was certainly the major
source for his own motivation to take on public responsibility as a scholar,
judge, and public intellectual.11 But beside religion, ‘philosophical, political and
social movements can strengthen . . . the willingness to not always look out for
one’s own benefit only, but to act companionably and in solidarity with oth-
ers’.12 Moreover, and this is a crucial point that has been overlooked by some of
his readers, he insists that religion can be a source for a democratic ethos only if
it is placed in the service of the common good, not of particular religious goals,
and not of the interests of individual religious groups,13 a point taken up again
towards the end of this introduction.
Further, it is only in the secular state, wrote Böckenförde in 1957, that
Christianity can be ‘a religion of freedom’ (again implicitly referencing Hegel).14

Dokumentation, C. F. Müller (1972), pp. 215–​231. This article was also included in his 1976 Suhrkamp compila-
tion but unfortunately was the only article not included when the collection was published in English in 1991.
9
‘Grundrechtstheorie und Grundrechtsinterpretation’, Neue Juristische Wochenschrift (1974), pp. 1529–​1538;
published in English as ‘Fundamental Rights: Theory and Interpretation’, Chapter XI in volume I of this edi-
tion, p. 288. Emphasis in the original.
10
‘Die Entstehung des Staates als Vorgang der Säkularisation’, in s.ed., Säkularisation und Utopie. Ebracher
Studien. Ernst Forsthoff zum 65. Geburtstag, Stuttgart: Kohlhammer, 1967, pp. 75-​94; included in this volume as
Chapter V, ‘The Rise of the State as a Process of Secularization’.
11
See his article ‘A Christian in the Office of Constitutional Judge’, Chapter XI in this volume.
12
Ernst-​Wolfgang Böckenförde, ‘Freiheit ist ansteckend’. die tageszeitung, 23 September 2009, p. 4.
13
Böckenförde 1961 (note 2).
14
Ernst-Wolfgang Böckenförde, ‘Das Ethos der modernen Demokratie und die Kirche’, Hochland 50(1) (1957),
pp. 4–19, included as Chapter I in this volume.
4

4 • Freedom in Religion, Freedom in the State

At a time when official Catholicism still tried to assert its role as part of the
state (in many Latin American countries as well as of course Franco’s Spain),
Böckenförde rejected that argument. With his commitment to the secular state,
he stood apart from the mainstream in the Church at the time. Only in the secu-
lar state, according to Böckenförde, can citizens develop the free commitment
to act in accordance with their religious convictions and not because it is backed
by the punitive framework of the state. In other words, only the separation of
law and morality enables believers to act truly morally.
Following his personal motto ‘civis simul et christianus’ (a democratic citizen
while also a Christian), Böckenförde sought to shape public life as a Catholic
and he sought to contribute to the reform of Catholicism from his position as a
democratic citizen. Böckenförde remained an inner-​Catholic critic throughout
his life. At the beginning of his career stands an analysis of Catholic complicity
in the rise of the Nazi state, and at the end of his career a public intervention on
the failure of the Church in dealing with cases of sexual abuse.15 In both cases,
he criticized the Church for prioritizing itself over concern for the people, and
for subordinating core Christian values to the raison d’être of the institution of
the Church.
Just before his passing, Böckenförde had decided that instead of flowers,
those wishing to mourn him should donate funds to Donum Vitae, an organi-
zation he had helped co-​found that provided ethical counselling to women con-
sidering to undertake an abortion. The creation of Donum Vitae had caused a
serious conflict with the Vatican, which accuses the organization of indirectly
abetting the German state’s relatively permissive abortion regulations.16 Even
from beyond his grave, Böckenförde sought to represent a different kind of
Catholicism: one where respect for people’s individual conscience came first.
The collection presented here, the second of two volumes, brings together
Böckenförde’s essays on issues of religion, ethos, and the Catholic Church in
relation to law, democracy, and the state, while the first volume presented a
selection of his essays in constitutional and political thought. Volume II is orga­
nized in four parts, containing three to four articles each and arranged in histori-
cally ascending manner: on the Catholic Church and Political Order (Part I), on
the State and Secularity (Part II), on the Theology of Law and Political Theory
(Part III), and on Basic Norms and the Principle of Human Dignity (Part IV). All
articles feature annotations by the editors, providing background information
on historical, cultural, and theoretical contexts. Each of the four parts is pre-
ceded by a short introduction by the editors that includes brief outlines of the
articles and the context in which they were written. The last chapter consists

15
Ernst-​Wolfgang Böckenförde, ‘Das unselige Handeln nach Kirchenraison’, Süddeutsche Zeitung 29 April
2010. ‘The main concern is that the sanctity of the institution is not endangered –​this maxim is the real scan-
dal and the reason for the crisis.’
16
According to a declaration by the German bishops of 20 June 2006, Church staff are prohibited from partic-
ipating in Donum Vitae, and all other Catholics involved in ecclesiastical councils, committees, associations,
and organizations are requested to renounce any senior cooperation with the association.
5

A Biographical Synopsis • 5
of excerpts of the biographical interview that historian and legal scholar Dieter
Gosewinkel conducted with Böckenförde in 2009/​2010.17
Section II of this introductory chapter provides an abridged overview of
Böckenförde’s academic career and public engagement (a fuller version is con-
tained in the Introduction to Volume I). Section III offers an overview and perio-
dization of his academic writings in seven phases from 1957 to 2012. Section IV
presents some of his key writings and positions as an inner-​Catholic critic, as
a theorist of the place of ethos in the public order, and as a thinker of ‘open
encompassing neutrality’ between religion and state. Section V offers a reflec-
tion on the cover images Böckenförde chose for the two volumes, before the
conclusion closes with brief remarks on Böckenförde’s view of religion in
democracy compared to other theorists of democracy and secularism.

II. ​A Biographical Synopsis

Böckenförde grew up in the Central German town of Kassel with seven sib-
lings. His father was a forester and his mother a housewife. Among the books
he said that formed him were Dante’s Divina Commedia and writings by the
Austrian novelist Adalbert Stifter and the German poet Reinhold Schneider (a
Catholic anti-​war writer). Apart from that, his family’s library included works
of philosophy, economics, sociology, and law, and a subscription to the Catholic
intellectual monthly magazine Hochland.18
At the age of thirteen years he had a tram accident, as a result of which he
lost half his left leg. Partly as a consequence of this accident, his travel activities
were limited, and unlike some of his colleagues of similar academic stature,
such as Robert Alexy or Dieter Grimm, he did not spend long sojourns at for-
eign universities. His travels led him frequently to Austria, Italy, and Poland, but
seldom further afield, the only exception being trips to Pakistan and the USA,
and an extensive lecture tour to Japan which he undertook in 1996 after retiring
from the Federal Constitutional Court and the university.
Böckenförde’s studies were unusual in that he decided to pursue not only one,
but two university degrees, which he then also followed up with two doctoral
dissertations in two separate disciplines, law and history, followed by a habilita-
tion in law.19 In both doctoral dissertations he chose a conceptual perspective: In
the dissertation in law of 1956, he examined the public understanding of law,

17
The 170 page-​long interview was published in ‘Biographisches Interview’, in Ernst-​Wolfgang Böckenförde,
Wissenschaft, Politik, Verfassungsgericht. Aufsätze von Ernst-​Wolfgang Böckenförde (Berlin: Suhrkamp, 2011), pp.
307–​486. Selections are published here in Chapter XVI, as well as in Volume I.
18
Hochland was a Catholic cultural magazine that published contributions by authors regardless of their
denomination and was viewed with scepticism by the Catholic Church for its independence, critical spirit,
and anti-​denominationalism.
19
For Böckenförde’s academic biography, see in more detail Mirjam Künkler and Tine Stein, ‘State,
Constitution and Law. Ernst-​Wolfgang Böckenförde’s Political and Legal Thought in Context’, in volume I of
this edition, pp. 1–​35.
6

6 • Freedom in Religion, Freedom in the State

tracing the differentiation between formal and substantive notions of law from
the nineteenth century to the Weimar Republic. Against the background of
conceptual history Böckenförde showed what the changing meaning of con-
cepts could reveal about changing power constellations, in this case the relation-
ship between monarchy and popular sovereignty.20 In his history dissertation
of 1960, Böckenförde examined the models of constitutionalism that emerged
over the course of the nineteenth century and how the concept of ‘constitution’
evolved from a mere juridical contract into a political category, transforming
the meaning of a political community which bound itself legally.21
How concepts of law changed meaning against the backdrop of evolv-
ing societal and respective power constellations remained a major theme in
Böckenförde’s work throughout his career.
After completing his habilitation22 in law in 1964 on ‘Organizational Power
in the Realm of Government. An Inquiry into the Public Law of the Federal
Republic of Germany’,23 Böckenförde was appointed professor of public law in
Heidelberg. He became dean of the faculty and in 1969 moved on to the newly
founded University of Bielefeld, and then later to Freiburg (1977–​95), where he
remained until his retirement, exempt from professorial duties during his ten-
ure as constitutional judge (1983–​1996). The denominations of these professor-
ships extended to the areas of Public Law, Constitutional History, Legal History,
and Philosophy of Law.
Two discussion circles brought the young Böckenförde into communica-
tion with some of the leading political thinkers in the early Federal Republic.
The first was the Collegium Philosophicum, convened by the philosopher and
Hegel expert Joachim Ritter.24 Ritter’s postwar work on Hegel had at its center
the problem of the place of the state after the age of democratic revolutions: it

20
He did so through the prism of the statutory basis requirement for encroachment (Gesetzesvorbehalt): the
idea that the executive may not encroach upon the citizens’ fundamental rights unless the legislature passes
a law permitting such encroachment. With the introduction of the legal concept of the statutory basis
requirement for encroachment, the balance between monarchy and popular sovereignty had shifted in favour
of the latter. Ernst-​Wolfgang Böckenförde, Gesetz und gesetzgebende Gewalt. Von den Anfängen der deutschen
Staatsrechtslehre bis zur Höhe des staatsrechtlichen Positivismus (Berlin: Duncker & Humblot, 1958).
21
Ernst-​Wolfgang Böckenförde, Die deutsche verfassungsgeschichtliche Forschung im 19. Jahrhundert. Zeitgebundene
Fragestellungen und Leitbilder (Berlin: Duncker & Humblot, 1961).
22
To become eligible for a professorship in Germany, it used to be the case that an applicant needed to have
a doctorate and a second major work, usually in the same field, i.e. the habilitation (combined with the venia
legendi, the authorization to teach the subject at university level). Nowadays a second book is widely regarded
as equivalent to the formal habilitation, although many scholars still seek the formal acquisition of a habilita-
tion as well. To have two doctorates like Böckenförde is rather unusual and testifies to his broad intellectual
interests.
23
Ernst-​Wolfgang Böckenförde, Die Organisationsgewalt im Bereich der Regierung. Eine Untersuchung zum
Staatsrecht der Bundesrepublik Deutschland (Berlin: Duncker & Humblot, 1964).
24
Joachim Ritter, professor in Münster, was one of the most influential German philosophers of the post-​
war period. He edited the 13-​volume ‘Historisches Wörterbuch der Philosophie’, a standard work in the
discipline of philosophy. Böckenförde contributed three entries: ‘Normativismus’ in Historisches Wörterbuch
der Philosophie, ed. Joachim Ritter and Karlfried Gründer, vol. VI (Basel/​Stuttgart: Schwabe, 1984), p. 931f.;
‘Ordnungsdenken, konkretes’, in ibid, pp. 1311–​1313; and ‘Rechtsstaat’, in: Historisches Wörterbuch der Philosophie,
ed. Joachim Ritter and Karlfried Gründer, vol. VIII (Basel/​Stuttgart: Schwabe, 1993), pp. 332–​342.
7

A Biographical Synopsis • 7
posed the questions of how to combine an openness to the people’s will with
political order in the early, conservative and skeptical years of the Federal
Republic. While a graduate student in Münster, Böckenförde was invited to
join the Collegium. The introduction to Hegel, in particular Hegel’s idea of the
state, would profoundly shape Böckenförde’s subsequent intellectual develop-
ment. Beyond the philosophical formation, the Collegium Philosophicum also
had a lasting sociological impact: here Böckenförde met future colleagues, such
as philosopher Robert Spaemann, who would become occasional co-​authors
and lifelong companions.
While Ritter's group focused on philosophical thinking, another circle influ-
enced Böckenförde’s development and career as a legal scholar by bringing
him into contact with leading legal thinkers, who were also concerned with
democracy and the state but more skeptical of democratic claims. This was the
‘Ebrach summer seminar’, a twoweek seminar convened every year by legal
scholar Ernst Forsthoff in Ebrach village in Upper Franconia.25 Here aspiring
legal scholars were invited to discuss their papers with established ones—​and
Carl Schmitt was a regular participant. Böckenförde’s groundbreaking article
on ‘The Rise of the State as a Process of Secularization’ as well as Schmitt’s ‘The
Tyranny of Values’ go back to lectures given at Ebrach.26
Among the participants in Ebrach was also conceptual historian Reinhart
Koselleck, later Böckenförde’s colleague at the University of Heidelberg, where
the two taught a course in legal history together. Koselleck, too, was concerned
with the relationship between freedom, democracy, and the coercive force of
both state and society in his early work. Both later moved to the newly founded
University of Bielefeld, and Böckenförde contributed an article to Koselleck’s
opus magnum Geschichtliche Grundbegriffe (basic historical concepts), one of the
foundational works of conceptual history.27
These ideas about freedom and the state, the social prerequisites for democ-
racy, and even the underlying concern of the conservative liberal intellectuals
from the early republic about the limits to the state in a democracy provided
some of the key themes for Böckenförde’s entire intellectual life. Indeed,
Böckenförde actively embodied some of the problems that they brought up, such

25
Ernst Forsthoff (1902–​1974) was a German scholar of constitutional and administrative law, teaching
over the course of his career at the universities of Frankfurt am Main, Hamburg, Königsberg, Vienna, and
Heidelberg. Like Carl Schmitt (Forsthoff ’s mentor) and many other German legal scholars, he welcomed
the Third Reich and worked on an ideological justification of the totalitarian state. But unlike many other
legal scholars, Forsthoff distanced himself from the regime still during the Nazi period and was banned from
teaching in 1942. Different from Carl Schmitt, he was ultimately permitted to resume teaching in the Federal
Republic and returned to his professorship at the University of Heidelberg in 1952. Forsthoff was a leading
drafter of the Constitution of Cyprus and served as the president of the Supreme Constitutional Court of
Cyprus from 1960 to 1963.
26
Sergius Buve (ed.), Säkularisation und Utopie; Ernst Forsthoff zum 65. Geburtstag (Stuttgart: Kohlhammer,
1967, Series: Ebracher Studien).
27
‘Organ, Organismus, Organisation, politischer Körper’ (sections VI–​IX), in Geschichtliche Grundbegriffe.
Historisches Lexikon zur politisch-​sozialen Sprache in Deutschland, vol. 4, ed. Otto Brunner, Werner Conze, and
Reinhart Koselleck (Stuttgart: Klett-​Cotta, 1978), pp. 561–​622.
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THE FORGERY;

OR,

BEST INTENTIONS.

BY G. P. E. JAMES, ESQ.
 LONDON:
SIMMS AND M'INTYRE,

PATERNOSTER ROW; AND DONEGALL STREET, BELFAST.

1853.

THE FORGERY.

CHAPTER I.

INTRODUCTORY.
 One of the finest characters in the world was the old English
merchant. We may and have improved upon many things, but not
upon that. A different spirit reigns in commerce from that which
ruled it long ago, and not a better one. We are more the shopkeeper,
as a celebrated but not a great man called us, and less the
merchant. As a people, our commerce is more extended, but the
separate transactions are smaller; and minute dealings almost
always produce paltry minds. Not at all do I mean to say that the old
English merchant is without his representatives; but they are fewer
than in other times, both with reference to our numbers and to our
extended trade.

There are many still, however, whose notions are as vast and as
just as those of any of our ancestors; and amongst them, not very
long ago, was a gentleman of the name of Humphrey Scriven. He
was a highly-educated and naturally-gifted man, the son of wealthy
and respectable parents in a class of society peculiar to England--the
untitled country gentry; and he had been originally intended for the
church. Circumstances, however, are to most men fate. He became
acquainted, by some mere accident, with the only daughter of a rich
merchant--admired, loved her, and won her love in return. He was a
younger son; but, nevertheless, her father was a kind and liberal
man, and he consented to their marriage upon one condition: that
Mr. Scriven should abandon his intention of entering the church, and
become a merchant like himself. He fancied that he had perceived in
the young man a peculiar aptitude for business, and he was not
mistaken. Mr. Scriven became his son-in-law, his partner, and his
successor; and well did he bear up the name and honour of the
house.

It was a fine thing to see him, some twenty years after his
marriage, when, with the business of the day over, he sat in his
splendid house in St. James's Square, surrounded by his family, and
often associated with the noblest and the proudest of the land. His
wife was no longer living, but she had left him four very handsome
children. She had herself been remarkably beautiful, and her
husband was as fine a looking man as eye could see--tall, graceful,
vigorous, and possessing that air of dignity which springs from
dignity of mind. From the moment that five o'clock struck, Mr.
Scriven cast off all thought and care of business; for, though there
were, of course, with him as with other men engaged in similar
pursuits, fluctuations and changes, bad speculations, failing debtors,
and wrecked ships, still his transactions were too extensive for the
loss of a few thousand pounds here or there to weigh upon his
mind; and, being of a cheerful and happy disposition, he spread
sunshine through his dwelling.

His family, at the time of which I speak, consisted of three

daughters and one son, who was born some four or five years after
the youngest sister. The daughters were all lovely, kind, affectionate,
and gentle in disposition, very much alike in person, and so nearly of
an age that it was difficult to tell which was the eldest. There was
indeed some difference in character, in point of force and vigour of
reason, but the spirit and the heart were the same. Maria, the
eldest, was a girl of much good sense, but of a very humble
appreciation of her own qualities and advantages. She thought little
of her beauty and less of her wealth, and her humility mere worldly-
minded people looked upon as weakness. Isabella, the second,
though neither haughty nor presuming, was of a far more decided
and independent nature; but Margaret, the third, was all gentle
kindness, with much less mere intellect than either of her sisters.
She had sense enough and principle enough never to do anything
that was wrong, but not enough worldly wisdom to guard her own
interests against her affections. The son was at this time a boy of
fifteen--a sharp, clever lad, who had been a good deal petted by his
mother, and had been taught by circumstances to attach more
importance to the possession of wealth than it deserves.

In great things Mr. Scriven seldom made mistakes; in small ones

he often did; and one of his mistakes was in not looking upon trifles
in education as important. Perhaps it is there alone that they really
are important; for every idea received in youth has a vast
development in maturity. The seed may be small and insignificant in
appearance; but, once sown, it is sure to grow, and may spread to a
great tree.

The father destined his boy to succeed him in his counting-house.

Though very wealthy, he had no inclination that his son should
spend the fruit of his ancestors' labours in idleness. He had a great
idea of the dignity of commerce; and Henry Scriven was taught from
his earliest years that he was to be a merchant. He was educated
with that view, and early initiated into business matters. Could Mr.
Scriven himself have given up his time and attention to the lad, he
might have acquired, with all the practical details, great views and
noble purposes; but his father's time was necessarily greatly
occupied, and he also felt some doubts as to his parental fondness
leaving his judgment room to act in the case of his own child. At the
age of fifteen, then, he sent him to receive the rudiments of a
mercantile education with the correspondent of his house at
Hamburg. This correspondent was known to be a good man of
business, but he was no more than that; and pinning his pupil down
to small details, and accustoming him to his own limited views of
commerce, he narrowed all his habits of thought, while he gave vast
development to certain germs of selfishness which were in the boy's
own nature. His principles were always to gain something off every
transaction; never to leave a penny unproductive; to buy in the
cheapest and sell in the dearest market; to look to his pence,
knowing that his pounds would take care of themselves; and, being
a merchant, to regard everything with a mercantile eye. He held that
no merchant should marry till he could retire from business. Indeed,
he regarded marriage, like everything else, as "a transaction," and
one quite incompatible with the conduct of a great commercial
house. Such lessons always have their effect--the pupil sometimes
going beyond, sometimes falling short of his master.

What were the impressions produced upon Henry Scriven will be

seen very soon; but, in the mean time, his eldest sister, Maria,
married. She made her own choice, and that without ambition
having any share in it. The gentleman whom she selected was
amiable, somewhat eccentric, but a man of high honour and much
feeling. He was the second son of one of Mr. Scriven's oldest friends
and fellow-merchants, and Maria's father had but one objection. It
had been arranged that Mr. Henry Marston was to go out to India,
with a sufficient capital to establish a house in relation with that of
his father in London. Mr. Scriven did not like the idea of his daughter
going to India at all; but he knew that people are the only judges of
their own happiness; and, as Maria had made up her mind, he threw
no impediment in the way. Shortly after Henry Scriven's return from
Hamburg, where he staid two years, the marriage of his second
sister, Isabella, took place. In this instance there could be no
objection on any part, as the man she chose was just the sort of
person whom such a girl might be expected to prefer. He was about
ten years older than herself, good-tempered, but remarkably firm,
cheerful without being merry, generous without being extravagant.
His property was ample; for his father, the third baronet, had left
him a large and unencumbered estate, and his mother a very
considerable sum in the public funds. Thus Isabella became the wife
of Sir Edward Monkton; but, as his property lay at no great distance
from London, her separation from her family was not so complete as
that of her sister Maria.

The youngest of the three sisters remained longer unmarried,

although she was fully as attractive, both in person and manners, as
her sisters. Nor was it that there was a lack of applicants for her
hand; for some four or five unexceptionable men proposed to her,
and were at once and steadily rejected, much to their own surprise
and to that of the lookers-on. She was so gentle, so affectionate, so
easily led, so over-anxious for the happiness and welfare of others,
that everybody had supposed her heart would be carried at the first
assault. Perhaps, indeed, it was, and this might be the cause of her
remaining single to the age of twenty-four.

There was at that time moving in the highest ranks of English

society a Sir John Fleetwood, who realized completely the idea of "a
man of wit and pleasure about town." He had served with some
distinction in the army, though he had not seen more than thirty
summers; was very handsome, very lively, with a smart repartee
always ready, a slightly supercilious air towards all men but his own
choice companions, and a manner most engaging to all women
whom he thought it worth his while to please. He had towards them
an easy familiarity which did not in the least savour of vulgar
impertinence--a constant display of little attentions, which seemed to
show that the person who received them was occupying all his
thoughts--a protecting kindness of tone, with a musical voice, and a
habit of speaking low. He danced with Margaret the first time she
ever appeared at a large party; he danced with her again, and then
he obtained an introduction to her father. Mr. Scriven received him
coldly, much to the poor girl's mortification--it might almost, indeed,
be called repulsively; and as he saw that Margaret was not only
surprised by his unusual demeanour to her handsome partner, but
more vexed than he could have desired, her father judged it best to
explain his motives at once.

"You were astonished, my love," he said, as they were driving

home, "at my coolness towards Sir John Fleetwood; but I do not
wish to encourage any intimacy between him and any of my family,
and I wish to make him feel at once that it cannot be. I know him,
Margaret, to be a bad man, as well as an imprudent man; and I
should be incurring too great a responsibility were I to suffer him to
visit at my house. He has had every advantage in life--family,
fortune, education--and he has misused them all."

Margaret was silent for a moment or two; but then she said--

"How do you wish me then to behave to him when we meet, as

must often be the case, I suppose? He will certainly ask me to
dance, and then I shall not know how to act after what you have
said."
 "The customs of society, my dear child, will prevent your refusing
to dance with him, unless engaged to another," her father replied;
"but I should wish you to be as often engaged as possible, and not
to suffer any approach to intimacy that you can avoid."

Margaret to the best of her abilities followed the directions of her

father; but she met Sir John Fleetwood often--she danced with him
often; and, with the best intentions in the world, what between
nervous doubts as to how she should behave on her part, and skill,
boldness, and experience upon his, he did not want opportunities of
making progress in her regard. Margaret therefore remained
unmarried, and reached her twenty-fourth year single, but less
blessed than she might well have expected to be.

Two days after her birthday, her father went out to ride in Hyde
Park; his horse took fright, ran away, and threw him. Mr. Scriven was
brought home little more than an hour after he had set out, with a
compound fracture of the thigh. The surgeons said that, with his
strong constitution and equable temper, there was no danger; and
Mr. Scriven's spirits did not in the least give way. Three or four days
after, however, mortification appeared; and he then with perfect
calmness informed the medical men that he felt his life was drawing
to a close. They endeavoured to persuade him that such was not the
case, but there are internal sensations not to be mistaken; and Mr.
Scriven sent for his lawyer, and a young gentleman of the name of
Hayley, who had been placed in his counting-house some seven or
eight years before, by highly respectable but not wealthy relations.
Mr. Hayley had conducted himself remarkably well, and had risen to
be the chief clerk of Mr. Scriven's house.

He approached the great merchant's bedside with looks of

sorrowful concern; and Mr. Scriven, after shaking hands with him
kindly, said--

"I have sent for you, my young friend, to give you a little
testimony both of my gratitude for various services, and of my
confidence in your character. I am dying, Hayley, though the
surgeons say not; and if I die at present, Henry, my son, is not yet
old enough to manage entirely such large concerns as must fall into
his hands. You are acquainted with all the details. I owe you a good
deal for your care, attention, and zeal in my service; and I do not
think I can either recompense you better, or do my son a greater
service, than by leaving you an eighth share of the business, which
was that portion bestowed upon me at my marriage. There is only
one observation I have to make, and do not suppose it to imply
censure, but merely warning. Though born of a race of gentlemen, it
is very necessary for you to remember that you are especially a
merchant. To that consideration you should sacrifice much, and it
you should sacrifice to nothing. Your education at a public school has
given you several acquaintances of a higher class of society than our
own, and some of very expensive habits, I am told. Friendships are
too valuable to be given up; but no examples are worthy of being
followed but those of honour, virtue, and truth."

"I can assure you, sir," replied Hayley, "I have preserved none of
my school acquaintances of a higher rank than my own, except that
of Lord Mellent, son of the Earl of Milford. We were first at a private
school together, then at Eton, in the same form; and it would, I
acknowledge, be a most painful sacrifice to give up his friendship.
With greater means than myself, he is of course able to maintain a
much more expensive style of living; but I trust you have never
observed anything in me which should induce you to suppose I
affect to rival him, or even to join him, in any extravagance.
However, I feel as deeply indebted to you for your advice as even for
your kind intentions towards me. The one shall be remembered as a
guide to my conduct; and I do still hope and pray that it may be
long, very long, before the latter receives execution."

Perhaps, had Mr. Scriven been at all a suspicious man, he might

have thought his protégé's reply too neat and rounded; but ill as he
was, and by nature generous in his appreciation of other men's
motives, he was well satisfied. His anticipations, however, regarding
his own fate, were but too surely realized. Three days after this
conversation his eyes were closed for ever; and his son succeeded to
a large property, and found himself at the head of a firm hardly
rivalled by any in the world. With the habits of thought which he had
acquired, the possession of so much wealth, and of such vast means
of increasing it, served to close rather than open the heart.

He felt an awful responsibility of getting money upon him, and of

preserving what he had got; and all his first acts indicated
sufficiently what would be his future course. Those who were
observers of human nature remarked, "If young Scriven is so close
and grasping as a mere lad, what will he be as age creeps upon
him?" And those who had perhaps calculated upon gaining some
advantages over the son which they had not been able to obtain
over the father, soon gave up the attempt and regretted the change.

Henry Scriven's first step was to discharge all his father's old
servants, and to pay all legacies, though he did not scruple to say
that he thought his sisters had been somewhat too liberally provided
for. He then sold the house in St. James's Square, as requiring a
larger establishment than was necessary for a young man; and he
retired to a lodging in Brook Street, comfortable enough, but greatly
within his means. He was much annoyed at the bequest of an eighth
share of his father's business to Mr. Hayley; but he took advantage
of all that gentleman's knowledge; and Hayley, soon by mild, almost
timid manners, and active services, contrived to ingratiate himself as
far as possible with a not very generous person.

In the mean time Margaret, viewing with wonder and disapproval

all her brother's conduct, retired for three months to the house of
her sister Isabella, and then went for some time on a visit to a
friend. Before she returned, a letter announced to Mr. Scriven and
Lady Monkton, that their sister was about to bestow her hand upon
Sir John Fleetwood; and as soon as she came back to London, the
baronet pressed eagerly for the consummation of his happiness.
Isabella, with knowledge of the world and strong good sense, saw,
as her father had seen, unanswerable objections to the marriage,
and she urged them strongly, though kindly, upon her sister's
attention; but she soon found that to urge them was labour in vain.
Margaret admitted that she knew her lover had been what was then,
and still is, called a gay man, and, moreover, an extravagant one;
but she assured her friends that he was reformed in both respects
and that she looked upon it as a duty to aid as far as was in her
power to complete the happy change. Lady Monkton wisely
abandoned the task of opposition, and hoped, but did not believe,
that the reformation would last. Mr. Scriven attached himself to one
object: to ensure that his sister's large fortune should be settled
upon herself; and in this he would probably have succeeded, if
Margaret would have consented even for a few short days not to see
her lover, or would have steadily referred all matters of business to
her brother. Unfortunately, however, Margaret had lost confidence in
him who was now really striving for her good; and she would not
trust to his generosity, while she was inclined to place the fullest
reliance on one whose selfishness was only of a more sparkling kind.
All that Mr. Scriven could accomplish was to have seven hundred a-
year and a house settled upon his sister, though she brought her
husband three thousand per annum; but that small sum he took
care so to tie up, that no after weakness on her own part could
deprive her of at least a moderate independence. Sir John
Fleetwood, after the deed was signed, laughed with a gay
companion, and observed, that Harry Scriven was the best man of
business in England; and on the following day Margaret became his
wife. The after fate of all the family shall be briefly told in the
succeeding chapter.

CHAPTER II.
 Where is the family in which the retrospect of ten years will not
present a sad and chilling record--with the open tomb, around
whose verge we play, and the yawning gulf of fate, which stands
ever ready to swallow up the bright hopes and joys of early life?
Maturity and decay shake hands.

In the family of Mr. Scriven many changes had taken place during
that space of time: flowers had blossomed and been blighted;
expectations had passed away which were once fair; sorrow had
shadowed some happy faces; death had not spared them any more
than others. But I must trace the history of each, though it shall be
very briefly.

The only one of the four children of the merchant who had
undergone few vicissitudes, who had known but little change, and
that merely progressive, was the son. Mr. Henry Scriven was the
same man, ten years older. He laid himself open to few of the
attacks of fate; he had neither wife nor children. His fortress was
small, and therefore easily defended. He had made money, and
therefore he loved it all the better; he had lost money, and therefore
he was more careful both in getting and keeping it. The circles round
his heart went on concentrating, not expanding, and were well-nigh
narrowed to a point.

Even in business this was discovered by those who had to deal

with him. People said that the house of "Scriven and Co." was a hard
house; but still everyone pronounced Mr. Scriven "a very honourable
man," though he did sundry very dirty tricks. But he was known to
be a rich man, and his business most extensive. Did you never
remark, reader, that a wealthy man or a wealthy firm is always "very
honourable," in the world's opinion? I have known a body of rich
men do things that would have branded an inferior establishment
with everlasting disgrace, or have sent an unfriended and unpursed
vagabond across the seas; and yet I have been boldly told, "It is a
highly honourable house."

So it was in a degree with Mr. Scriven, but still he was careful of

his character. He never did anything very gross--anything that could
be detected; and though all admitted that he was very close and
somewhat grasping, people found excuses for him. Some thought he
would build hospitals. Even his very nearest and his dearest knew
him not fully, and did not perceive what were the real bonds which
kept his actions in an even and respectable course. It is wonderful
how many persons, women and men, are restrained by fear!

Maria Scriven had accompanied, as I have said, her husband, Mr.

Marston, to India; and there, as far as worldly matters went, they
were very prosperous. Still they had their griefs. Who has not? Their
eldest child was a boy, whom they named Charles; and a stronger,
finer little fellow never was seen. Her letters were full of him. But the
second child was lost when a few months old, and the third did not
survive its birth a year. Maria's own health also suffered from the
climate, and with much pain it was resolved that she should return
to Europe with her boy. Mr. Marston was to rejoin them at the end of
three years. But human calculations are vain. When Maria reached
England she was carried from the ship to the shore, and thence by
slow journeys to London, for she was very ill. She revived a little in
her native air; but the improvement was not permanent, and she
died about two months after her arrival.

Her husband's great inducement for revisiting the land of his birth
was gone; and leaving his son to the care of his brother-in-law, he
remained plodding on in India.

Lady Monkton had her share of sorrows, too. Her first three
children died in infancy. They were all bright, blooming, beautiful.
Health and long life seemed written on their fair faces; but the battle
is not to the strong, nor the race to the swift; and one or other of
those maladies of childhood which often make a cheerful household
desolate, had swept away the whole successively. Isabella, gay,
happy, strong-minded as she was, quailed under these repeated
blows. She was too firm and sensible to yield entirely; but a shade of
sadness came over her once clear brow, and when a fourth child
appeared, it was with some awe she watched its infancy. This child
was a daughter, more delicate to all appearance than the others; but
when illness fell upon her it was comparatively light, and with years
health and strength seemed to increase. The fair, fragile form
developed itself with a thousand graces; the bloom came upon the
cheek, the soft, languid eyes grew bright and gay, and hour by hour
hope and confidence returned. There was still a terrible shock in
store, however. One day Sir Edward Monkton returned from a ride,
very wet, was detained by a person he found waiting for him on
business, was seized with shivering during the night, and
inflammation of the lungs succeeded. Five days of watching and
terror left her a widow, with a heart, the very firmness of which
rendered its affections the more enduring. Mr. Scriven's character
had not fully displayed itself to the eyes of Sir Edward Monkton. He
knew him to be a good man of business, and believed him to be an
honourable and upright man. Even Lady Monkton did not know her
brother thoroughly; and she was glad to have him joined with
herself as the executor of her husband's will and the guardian of her
daughter. She soon found cause for some regret that it was so; for
his arrangements did not altogether please her; but still there was
not much to complain of; and at the end of the ten years which
followed her father's death, she was living peacefully at her house in
Hertfordshire, about fifteen miles from London, occupied with the
education of her daughter Maria, seeing very little society, dwelling
calmly, though gravely, upon the past, and looking forward with
hope and consolation to the future.

One of the greatest anxieties which Lady Monkton felt at this

time--and they were anxieties which amounted to grief--proceeded
from the circumstances of her sister Margaret. Sir John Fleetwood
had turned out all that Mr. Scriven had anticipated--reckless,
extravagant, licentious. His whole thought and occupation seemed to
be, how he might soon run through his own property and that part
of his wife's fortune over which he had control. He was very
successful in his endeavours. What bad associates, male and female,
did not contrive to dissipate soon enough, cards, dice, and horses
succeeded in losing; and at length he endeavoured to get rid of his
wife's settlement. She would willingly have given it up to please him;
for though he had been a negligent and offending husband, yet so
long as money lasted he had always been gay and good-humoured
with her, treating her more as an innocent and unsuspecting child
than as a companion. But Mr. Scriven had taken care of his sister's
income. It could not be touched even with her own consent. No
creditor had power over it; her own receipt was necessary for every
penny of the income, and being settled upon her children, though
she had none, it was inviolable.

Sir John had not clearly perceived these stringent conditions when
he signed the deed; and some sharp discussions took place between
him and his brother-in-law. He became gloomy, morose, fretful; and
still he would appear at Ascot or at the gambling-table, though he
could no longer maintain the appearance which he had once
displayed. It was at the former of these places that a dispute took
place between himself and another gentleman of the turf. It matters
not much to this work which was wrong or which was right, and
indeed I do not know. Hard epithets were exchanged, and Sir John
employed a horsewhip, not for its most legitimate purpose. Two
mornings after he was brought home in a dying state, with a pistol-
shot through his lungs, and never uttered a word during the half-
hour he continued to exist. It must have been an awful half-hour, for
it was clear that his senses and his memory were all still perfect; and
what a picture memory must have shown him! Poor Lady Fleetwood
was in despair. Her love had never failed, nor even diminished. She
had never admitted his faults even to herself; or, at all events, had
found excuses for them in her kind and affectionate heart. Now that
he was gone she was still less likely to discover them; for bitter
sorrow drew a veil between her eyes and all that might have
shocked her in the conduct of the dead. It is true, there was one
thing could not be concealed from her: that he had wasted every
penny of his own property, and of hers, too, as far as it was in his
power to do so. But then she fancied that he had been only
unfortunate, and doubted not that, had he lived, all would have
been set right. Her brother, Mr. Scriven, tried hard in his cold, dry
way to open her eyes, but he only wrung her heart without
convincing her; and though she both feared and respected him, he
could never induce her to admit that her husband had acted ill.

Lady Monkton, with tenderer feelings, never attempted to

undeceive her, but brought her at once to Bolton Park, and there
tried to soothe and comfort her. Nor was she unsuccessful. Her own
calm and quiet demeanour, somewhat touched with grief, but yet not
melancholy, the gay and cheerful company of her little girl Maria,
and the occasional society of her next neighbours, Lord Mellent and
his wife, a somewhat indolent but amiable and lively woman,
gradually restored Lady Fleetwood to composure and resignation.
Her greatest solace, indeed, was her niece Maria; for, though
enthusiastically fond of children, she had had none herself; and now,
the gay, happy girl, about ten years old, addressed herself, with
more thought and feeling than might have been expected of a child,
to amuse her widowed aunt and win her mind from sad thoughts
and memories. Maria's young companion, too, Anne Mellent, the
daughter of their neighbours, though of a different character from
Maria--quick, decided, independent in her ways--was always
exceedingly tender and gentle to Lady Fleetwood, and from time to
time another was added to their society, whom they all knew and all
loved, though he was at this time not above thirteen years of age.
But of him and his family I must speak apart, as, although it was
intimately connected by circumstances with that of Mr. Scriven, it
was not allied to it either by blood or marriage.
 CHAPTER III.

In mentioning the circumstances which attended the death of the

great merchant, I have spoken of a young gentleman of the name of
Hayley, who, when his family fell into adverse circumstances, had
been placed in Mr. Scriven's house as a clerk, and had risen by good
conduct and attention to be the chief clerk in the counting-house. He
was still under thirty when his friend and patron died, and, as I have
said, received, as a recompense for his services, an eighth share in
the house. Perhaps enough has been displayed of his character to
enable the reader to estimate it justly; and I will only add, that he
was of a gentle, yielding, almost timid disposition, although it might
perhaps have been somewhat fiery and eager--as indeed it had
seemed at school--had not early misfortunes and long drudgery
broken his spirit and cowed the stronger passions within him. It is
not an uncommon case.

During the time that he remained a clerk, and for a year after he
became a partner in the house, Mr. Hayley lived as a single man with
an unmarried sister, somewhat older than himself, in a small house
in one of those suburban quarters of the town where people fancy
they get country air. But at the end of that time he one day brought
home with him a fine little boy of two years old, very much indeed to
the surprise of his sister. Some explanation was of course necessary,
as well as many new arrangements; but, for the first time in his life,
a strange degree of reserve seemed to have fallen over Mr. Hayley.
He would tell his sister part, but not the whole, he said, in answer to
her anxious inquiries. He did not affect to deny that the child was his
son; but he desired that he might not be questioned at all about the
boy's mother, and seemed annoyed at the least allusion to the
circumstance of birth.

Now, Miss Hayley was as affectionate a creature as ever drank in

the milk of human kindness from the gentle air of heaven, and she
was devotedly attached to her brother. But she was proud of him,
too; and she had very strong peculiarities, and also a strong and
quick temper, which is not unfrequently joined to a heart soft even
to weakness. She was not satisfied with the information she had
received; she thought her brother did not place sufficient confidence
in her; and, after considering the matter for some hours, she took
her resolution, and with an air of grave dignity went down to the
room where Mr. Hayley was seated looking over some papers.

"Stephen," she said, "I want to speak with you for a moment."

"Well, my dear Rebecca, what is it?" asked her brother, hardly

looking up.

"I must know more about this little boy," said his sister.

"I must indeed request you not to trouble me or yourself," said

Mr. Hayley, with unwonted sharpness, "about what does not concern
you."

Miss Hayley fired up instantly. She insisted that it did concern her
very much, and the sharpest dispute took place between herself and
her brother that had ever occurred in their lives. It ended by her
declaring, that if he did not satisfy her at least upon one point, she
would leave his house, and by his telling her that she was at liberty
to do so--very well assured, be it remarked, that she would not. She
turned to the door, however, with such a look of determination that
Mr. Hayley became a little alarmed, and he called her back.

"Now, what is it you want to know, Rebecca?" he asked. "You say

one point. That must, of course, be a point of consequence; for I
think you would not quarrel with me for a trifle, or for anything that
does not actually concern you. What is it?"

Miss Hayley paused for a moment, for she had come with an
intention of making him tell all, and when driven from the broader
ground by his resolute resistance, had not exactly the point on which
to make her last stand.

"Is the child legitimate or illegitimate?" she asked at length.

"He was born in lawful wedlock," answered her brother.

"And the mother?" inquired his sister.

"That is not fair, Rebecca," said Mr. Hayley: "you declared that you
would be satisfied with explanation on one point; now you require
more. However, I will satisfy you on this head also, upon the clear
understanding that I hear not one word more upon the subject, now
or ever. Do you agree?"

"Yes, then I shall be content," answered she; "but on these two

matters I have a right to information, for I am not going to----"

"There, there!--I want not your reasons," exclaimed her brother,

interrupting her. "Upon that understanding, then, I tell you, his
mother is dead, poor little fellow--has been dead for some months;
and I should have brought him home before, if it had not been for
the anticipation of all this fuss and explanation. You may therefore
tell any impertinent person who inquires, that Henry is my son by a
private marriage, and that his mother is dead.

"Very well," replied Miss Hayley with an offended air; for she was
not at all pleased with the half-confidence she had received, when
she thought that she had a right to the whole story, and she walked
dignifiedly out of the room.

When she got up to the drawing-room, she found the boy playing
about upon the floor under the charge of one of the maids; and she
had a strong inclination to sulk a little, even with the child. She
found it impossible, however. He would not let her; her own heart
would not let her; and in three days she was doing her best to spoil
him completely. She tried to draw from him--for he could speak very
nicely--some of those facts which her brother had withheld, or at
least a clue to them. She questioned him regarding his "mamma;"
but the little fellow stoutly maintained he had never had a mamma,
asserting that "Nurse Johnston" was the only mamma he had ever
had, and she was not his mamma either, for his papa had told him
so. The next thing was to ascertain, if possible, where he had
previously lived; but of that the boy could tell her nothing but that it
was a great, great way off, had taken a long time to travel thence
(which was afterwards reduced to two or three hours), and that the
house had a garden and was opposite to a toll-gate. All that she
could arrive at was, that the boy's first recollections were of being
dressed in a white frock with black ribbons, and sometimes having
on a frock altogether of the same sombre colour.

In time curiosity died away, and simple love for the dear boy
succeeded. Proper arrangements for his careful education were
made; a nurse was hired; his letters were learnt; Mr. Hayley seemed
to dote upon him, and Miss Hayley actually did so; for a more
engaging child never was seen--kind, gentle, docile, yet playful,
bold, and frank.

In the mean while a house had been hired in a more fashionable

situation, the number of servants was increased, a better style of
living assumed; and even Mr. Scriven admitted that Hayley was a
very prudent man, who had waited to see the extent of his means
before he at all increased his expenditure.

Mr. Scriven was not an inquisitive man. He was accustomed to say

that he had too many affairs of his own to allow him to mind other
people's, and he saw the little addition to Mr. Hayley's family without
much comment or inquiry. He was well satisfied with the assurance
which his partner gave him, in answer to the only questions he did
put, that he never intended to marry again; and he even seemed
pleased with and fond of the little boy, whom he frequently saw--as
pleased with and as fond of him as he could be of anything but
money. When little Charles Marston was left under his charge,
indeed, by his sister's death and her husband's absence, he naturally
became more attached to his young relation. Nevertheless, he often
had little Henry Hayley to play with his nephew, and the two boys
became inseparable as they grew up. Henry's manners and
disposition won his way everywhere, and he was looked upon almost
as one of the family by Lady Fleetwood and Lady Monkton. At Bolton
Park he was always a most welcome guest; and a fondness, which
might have alarmed some mothers who had ambitious views for
their daughters, arose and increased from day to day between him
and Maria Monkton, who was but a few years younger.

In the mean time Mr. Hayley's style of living became gradually a

good deal more expensive; and that taste for high society which the
elder Mr. Scriven had remarked showed itself more strongly with his
altered circumstances. The names of several noblemen were added
to that of Lord Mellent on his list of friends; and rumour said that he
occasionally lent money to the more needy of his fashionable
acquaintances. Still his intimacy with his former friend and
schoolfellow continued unabated. Lady Mellent, who was herself the
daughter of a banker, readily adopted her husband's feelings
towards him, and Mr. Hayley was generally a guest at their house on
the Saturday and Sunday.

After having seen their friend's little boy once or twice at Lady
Monkton's house, the noble lord and his lady were as fascinated with
him as others had been; and the next time Mr. Hayley came down to
Harley Lodge, he was asked to bring his son with him. The invitation
was repeated till it became customary; and till he was ten years of
age, each Saturday saw Henry a guest at Lord Mellent's house, and
the companion of his daughter.

Nothing to please or to instruct was spared upon the boy by Mr.

Hayley. He was determined, he said, not to send him to a private
school, and consequently masters were engaged to teach all sorts of
rudimental knowledge at home. He had his pony, too, and a groom
was generally ready to go out with him; but it was remarked that,
whenever he got away from his lessons early, he was soon on the
road to Bolton Park, and roaming about with Maria in her play-hours.
At length the period arrived for sending him to Eton; and now of
course he was only seen during the holidays by his young
companions, except by Charles Marston, who followed him six
months after. Both boys distinguished themselves a good deal at
school; but Henry's abilities were decidedly higher, or his application
greater. Nor was this produced by any want of those inducements to
inattention which rich and fond parents often supply to their
children; for Mr. Hayley was a very indulgent father, and the
allowance that he made to his son was more than ample, at least
during the first three years of Henry's stay. Indulgence did not seem
to spoil him. On only two occasions--and they were both honourable
to him--did he go beyond the strict limit of what was allowed him;
and his attachment and devotion to a father who showed him such
tender kindness were unbounded. The course pursued, however,
was undoubtedly foolish. Mr. Hayley had not made a fortune: it was
still to make; and his over-liberality towards his son in matters of
expense generated habits which could only be kept up in after life by
a very wealthy man.

During the period of the holidays the gay, happy lad was still a
frequent guest at Bolton Park and Harley Lodge. He was very tall,
finely formed, and of a remarkably handsome and expressive
countenance, older both in look and in manner than his years, and
yet with all the grace and frankness of boyhood unimpaired. There
was something noble and even proud about his look, too, although
he was as gentle as the spring; and if, considering his youth, his
habits were expensive, he could hardly be blamed, seeing that Mr.
Hayley did nothing to restrain them; and his aunt, whose fondness
for him had now grown to a pitch of extravagance, did everything
that excessive indulgence could do to encourage them. He had but
to ask and to have; and as he had never been taught the value of
money, of course it had no value in his eyes.
 The period at which youth puts on manhood varies very much in
different individuals, and Henry Hayley looked and was two years
nearer maturity at fourteen than his young companion, Charles
Marston, who was not quite a year younger. Nevertheless, Lady
Monkton always saw him the companion of her daughter with
pleasure. She let things take their course, and did not even think fit
to foresee a time when the intimacy must receive a check. This very
unworldly view depended upon her own character. Though a
sensible girl and a very sensible woman, she had never had the
slightest share of ambition. She considered that happiness consists
of happiness; which, simple as the conclusion may seem, is a view
that very few people indeed take. She did not believe that she would
have been in the slightest degree happier with her own husband if
he had been a peer: she was sure she should not have been less
happy if he had been a merchant; and she left Maria to choose for
herself, without the slightest precaution as to how she might choose,
except inasmuch as she resolved that she should never have the
opportunity, if she could prevent it, of choosing a Sir John
Fleetwood.

Not so, however, Lady Mellent, who became somewhat uneasy at

young Henry Hayley's constant association with her daughter. It is
true that she was only ten years of age; it is true that the lad's
boyish prepossessions were evidently in favour of Maria Monkton;
but still she thought it right to represent to Lord Mellent that "Henry
was really growing quite a young man;" that "boyish intimacies often
ripened into more tender feelings;" that "as Anne grew up, it would
not do to have such a thing as an attachment even reported
between her and young Hayley;" with a number of the usual
etceteras.

But her representations had not the least effect upon Lord
Mellent. Henry was now his great favourite. He took him out to
shoot with him; he mounted him; he took him out to hunt; and he
never was happier than when the lad was with him. His society also
was of great advantage to Henry Hayley; for, though Lord Mellent
had in his young days been both an extravagant and a somewhat
dissipated man, yet there was at bottom a fund of strong good
sense and high principle in his character, which had shown itself in a
complete change of habits and pursuits after his marriage--in the
casting off of all dissolute associates, and the abandonment of all
evil or dangerous customs. Lady Mellent felt a little piqued perhaps
at her husband's great fondness for the handsome boy. She felt
sure, and perhaps not unreasonably, that Lord Mellent regretted he
had not a son such as Henry Hayley; but she was too good-
humoured and too indolent to press her opinions after they had once
been expressed, and everything went on as before.

Thus all matters proceeded till Henry returned from Eton for the
summer holidays, when he was somewhat more than fifteen years of
age; but on his arrival at his father's house he found a great change
had worked itself during his last absence. Mr. Hayley was gloomy
and depressed; Miss Hayley was evidently uneasy, though a fitful
and excessive cheerfulness was assumed to cover care and thought.
No explanation was given him; and on the second day after his
arrival, finding that even his presence, which usually spread
sunshine around, and all his efforts to please and amuse, which
never before had been unsuccessful, failed to cheer his home, he
betook himself to call upon his young companion, Charles Marston.

Charles was out--he had gone down to his uncle's counting-

house, the servant said; and thither Henry followed to ask him if he
would ride to Bolton Park. He did not find him in the city; but he met
with Mr. Scriven, who was particularly kind to him, asked after his
progress in his studies, inquired especially into his knowledge of
arithmetic, and questioned him as to how he should like to be a
merchant. Nay, more: having a little time to spare, he gave him
some of his own views of commercial matters, and seemed anxious
to impress him favourably with the pursuits in which his own life was
entirely spent. It was really kind--and he intended it to be so. The
lady did not much like the subject; but with his usual sense of
propriety he listened with attention, looked at some books which Mr.
Scriven showed him, and though he did not express any great liking
for a mercantile life, replied gaily that he doubted not he should
soon bend himself to any course which his father thought fit for him
to follow.

A certain feeling of shyness, he knew not well why, prevented him

from turning his horse's head towards Bolton Park without Charles
Marston; but he had no such feelings in riding to Harley Lodge.
There, however, he learned that Lord Mellent had been for some
weeks in the north of England, attending upon his father, who was
dangerously ill; and after having lunched gaily with Lady Mellent and
her daughter, he rode back to London, and went to call upon Lady
Fleetwood, who had by this time taken up her abode in a small
house in London.

Here, for the first time, Henry Hayley was informed of the real
situation of his father. Lady Fleetwood was the best creature in the
world, and the best creature in the world is always anxious to
comfort everybody that requires comforting. It very often happens,
indeed, that the objects of this kind influence do not know that they
need it, and then the effect of the effort is generally the reverse of
what was intended.

Lady Fleetwood, with the "best intentions," began the process by

assuring her young friend that she was very sorry indeed for the
differences between her brother and Mr. Hayley--the whole family
were very sorry, and had long hoped that it might be made up; but
that her brother had always been very firm--Lady Fleetwood would
not call it obstinate, though that was what she meant to imply; but
she was a woman of soft words, who never used a harsh expression
in her life. However, her consolations showed Henry Hayley that
there was something in his situation which needed consolation, and
he proceeded to ascertain from Lady Fleetwood what it was. In
regard to keeping a secret, it was a thing which Lady Fleetwood did
not often succeed in effecting, though she sometimes attempted it;
and Henry soon learned that Mr. Scriven, having heard, or
discovered, or suspected, that Mr. Hayley occasionally frequented a
fashionable gambling-house, had about two months before insisted
upon an immediate dissolution of partnership. The accounts were
even then in course of settlement, Lady Fleetwood told him; and she
added, that she was very sorry to hear Mr. Hayley was likely to be
greatly embarrassed by this business, as some speculations on his
own private account had proved unsuccessful.

"She could not understand it," she said, "for she knew nothing of
business; but she recollected quite well having heard her brother
say, at the time of her father's death, that the eighth share of the
business was worth more than thirty thousand pounds."

Henry Hayley left her with a heart terribly depressed. He felt

himself compelled to think, and think deeply, for the first time in life;
and that very fact proved depressing. When we first learn that the
flowers of the garden, which this world generally is to youth, are
doomed to wither, by seeing the fair, frail things fade and fall, the
heart feels faint with apprehension lest they should never bloom
again, nor others rise up in their places. But the mind of the lad was
a powerful one, disposed for thought and apt for action.

"My father is ruined," he thought, "and perhaps his indulgence to

me may have contributed to involve him. More than one-half of the
fellows at Eton were not allowed to spend nearly as much as I was,
and none more." Then came the thought, "What can I do to help
him?"

It was a difficult question for a boy to answer, but Henry brooded

over it. Everything he saw at home showed him that his conclusions
in regard to Mr. Hayley's circumstances were but too just. All matters
were going amiss, and his father's gloom was not to be mistaken.
The young lad pondered and meditated in his own room for several
hours each day, without arriving at any satisfactory result; but one
morning he called to mind his interview with Mr. Scriven, and that
gentleman's marked kindness towards him. He remembered the
peculiar and unusual character of their conversation; and he could
not help thinking that Mr. Scriven, in asking how he would like to be
a merchant, had sought to point out to him the best course he could
pursue.

"I will be a merchant," he said to himself; "I may help even as a

clerk, and at all events relieve my father of the burden of supporting
me."

The next step was to inquire how he was to proceed. He had a

natural repugnance to going to Mr. Scriven again; yet, as Mr. Hayley
had not mentioned to him his changed circumstances, he was
anxious to keep his proceedings a secret at home till his
arrangements were formed. Had not Lord Mellent been at a
distance, Henry would have gone to him direct for counsel in his
strait; for the frank kindness which that nobleman had ever shown
him had won the boy's confidence entirely. But, cut off from that
source of advice, he was obliged to act without consolation; and
after long deliberation, he one morning put on his hat and issued
forth to call upon Mr. Scriven.

When he was within a couple of hundred yards of the counting-

house, he saw his father approaching with a quick and hurried step,
his brow clouded and his eyes bent anxiously upon the ground. He
was apparently coming from his late house of business, and was at
some distance, when one of two merchants who were walking in the
same direction as Henry, and close before him, observed to the
other, "Ah! here comes poor Hayley. I am afraid the game's up with
him."

"I cannot be sorry for him," replied the other, in a dry, harsh tone:
"he has acted like a fool."

The next moment Mr. Hayley approached, still with the same
thoughtful air; and probably in his reverie he would have passed
even his son, had not the two men who had been speaking of him
stopped him with the ordinary inquiries of the morning. He answered
shortly, but on raising his eyes saw Henry before him, and inquired
somewhat eagerly whither he was going.

"I am going to call on Mr. Scriven," replied the lad; "I have not
seen him for several days, and he was very kind to me when last I
was there."

"Stop, stop!" said Mr. Hayley; and then, after pausing for a few
moments, and fixing his eye gloomily upon the pavement, he added,
"Well--go," and hurried on.

The lad pursued his way to the counting-house and inquired for
Mr. Scriven. He was asked to wait a few minutes, and then ushered
into a large handsome room, where the head of the house usually
sat.

"Ah, Henry!" he said, in a tone frank enough, "did you not meet
your father?"

"Yes, sir," replied the youth; "I met him close to the door."

"Did he say anything particular to you?" demanded Mr. Scriven.

"No; he only asked where I was going," replied Henry, "and when
I told him, he said 'Very well, go on.'"

"Humph!" said Mr. Scriven. "Have you any business to speak

about, my young friend? or is this merely a call?"

"I can hardly call it business, sir," replied Henry, coming to the
point at once; "but you were kind enough when last I saw you to
talk about my becoming a merchant. I have been thinking over the
matter since, and I have made up my mind to be one, if I can."

"Have you spoken to your father on the subject?" asked Mr.

Scriven.
 "No, sir," answered the lad in his usual candid manner; "I see he
is very uneasy about something. I am afraid that I have been a
great burden to him, and I want, if possible, to put myself in the
way of relieving him rather than pressing upon him."

Mr. Scriven gazed upon him with a look of some surprise, and
then said, "And have you not spoken with him upon the subject at
all?"

"Not in the least," answered Henry: "I hope you do not think it
wrong, for I wish only to do what is right. But as my father has not
said a word to me about his affairs, and perhaps I may be found not
to have abilities for what I desire to undertake, I thought it would be
better not to say anything till I had tried, and then if I fail he would
not be disappointed."

"You are a singular boy, upon my word," said Mr. Scriven; "Do you
propose, then, to go as a clerk upon trial?"

"I do not know what steps I ought to take," replied Henry, "and
that is the very subject upon which I came to ask your advice."

Mr. Scriven mused for a moment, and then called for his head
clerk.

"Is young Hamilton likely to return to business soon?" he inquired,

as soon as the clerk appeared.

"I am afraid not, sir," replied the other: "they tell me he is in a

deep decline."

"Very well," said Mr. Scriven, and the clerk retired. An important
conversation followed, though it was not a very long one; for all Mr.
Scriven's ideas and expressions were so clear and precise that he
got through much matter very rapidly. His counting-house was now
without one of the usual clerks; and he proposed to Henry Hayley,
as a favour to the young man--though in fact it was some assistance
to himself--to come to his house for three or four hours each day,
and do part, at least, of the work of the sick lad who could not
attend. He left him to tell his father or not as he pleased; but he
made such arrangements as to hours that the communication need
not be forced upon him. Henry accepted the offer joyfully, and
returned home with a lightened heart. But in the mean time Mr.
Scriven looked out for another clerk in the place of the one who was
ill; for, though he had no objection to give the son of his late partner
the opportunity of learning a little of mercantile affairs, and keeping
some of his books for him at the same time, he had not the slightest
intention of taking Henry Hayley into his counting-house.

"That would never do," he said: "the connection between his

father and myself must be altogether broken off. It is lucky I
discovered his habits so soon, before he had shaken my credit while
he was ruining his own."

CHAPTER IV.

Daily, to the tick of the clock, at the appointed hour Henry Hayley
was at Mr. Scriven's counting-house, and earnestly and steadily did
he apply. He became a great favourite with the head clerk and the
cashier, whom he assisted alternately; and a quick and intelligent
mind and retentive memory enabled him in ten days to master more
than many other lads of his age would have acquired in as many
months. Mr. Scriven himself he seldom saw; but that gentleman
found that he was very useful, and likely to become more so; and he
was inclined to regret that insuperable objections would prevent him
from retaining him as a clerk. He suffered no hint of his intentions to
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