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 CONSTITUTION WRITING,
RELIGION AND DEMOCRACY

What role do and should constitutions play in mitigating intense

disagreements over the religious character of a state? And what kind of
constitutional solutions might reconcile democracy with the type of
religious demands raised in contemporary democratizing or democratic
states? Tensions over religion–state relations are gaining increasing
salience in constitution writing and re-writing around the world. This
book explores the challenge of crafting a democratic constitution under
conditions of deep disagreement over a state’s religious or secular identity.
It draws on a broad range of relevant case studies of past and current
constitutional debates in Europe, Asia, Africa and the Middle East and
offers valuable lessons for societies soon to embark on constitution-
drafting or amendment processes where religion is an issue of contention.

asli ü. bâli is Professor of Law at the UCLA School of Law, and Director
of the UCLA Center for Near Eastern Studies. She is the author of numer-
ous peer-reviewed and law review articles, including “Shifting into Reverse:
Turkish Constitutionalism under the AKP,” Theory and Event (2016) and
“Courts and Constitutional Transitions: Lessons from the Turkish Case,” in
the International Journal of Constitutional Law (2013).
hanna lerner is a Senior Lecturer in Political Science at Tel Aviv
University. She is the author of Making Constitutions in Deeply Divided
Societies (Cambridge University Press 2011) and coeditor of Global Justice
and International Labour Rights (Cambridge University Press 2016).
 CONSTITUTION
WRITING, RELIGION
AND DEMOCRACY

Edited by
ASLI Ü. BÂLI
University of California, Los Angeles, USA

HANNA LERNER
Tel-Aviv University, Israel
 University Printing House, Cambridge CB2 8BS, United Kingdom

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107070516
© Cambridge University Press 2017
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2017
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Bali, Asli Ümmühan, 1971– editor. | Lerner, Hanna, editor.
Constitution writing, religion and democracy / edited by Asli U. Bali, University of
California, Los Angeles; Hanna Lerner, Tel-Aviv University.
Cambridge, United Kingdom : Cambridge University Press, 2016. | Includes
bibliographical references and index.
LCCN 2016044611 | ISBN 9781107070516 (hardback : alk. paper)
LCSH: Church and state. | Freedom of religion. | Constitutional law.
LCC K3280 .C663 2016 | DDC 342.08/52–dc23
LC record available at https://lccn.loc.gov/2016044611
ISBN 978-1-107-07051-6 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such Web sites is, or will remain,
accurate or appropriate.
 CONTENTS

List of Contributors page vii

Acknowledgements ix

1 Introduction 1
a s l i ü. bâl i a n d h a n n a l e r n e r

PART I Constitution Writing and Religion under

Limited Sovereignty 27
2 The Curious Case of Religion in the Norwegian
Constitution 29
jo h n madel e y
3 Religion and the Japanese Constitution 49
h e l e n ha r d a c r e
4 Constitution-Making and Religion in West Germany in the
Shadow of State Failure 74
ti ne stei n

PART I I Postcolonial French-Influenced Constitution

Writing and Religion 99
5 Secularism in a Sectarian Society? The Divisive Drafting of
the 1926 Lebanese Constitution 101
m a r k f a r ha
6 The Constitution of a “Laïc” African and Muslim Country:
Senegal 131
souleymane bachir diagne
7 Constitution Writing and Religious Divisions in
Turkey 153
e r g u n öz b u d u n

v
vi c o n t en t s

PART I II Postcolonial South Asian Constitution

Drafting and Religion 177
8 Constitutionalism, Islamic Law, and Religious Freedom in
Postindependence Indonesia 179
mirjam kün k le r
9 Cross-Cutting Rifts in Constitutions and Minority Rights:
India, Pakistan, Sri Lanka 207
shylashri shankar

10 Islamic Law in an Islamic Republic: What Role for

Parliament? 235
matthew j. nelson

PART I V Constitution Writing and Religion in

Contemporary Middle East 265
11 Constitutional Impasse, Democracy, and Religion in
Israel 267
hanna lerner

12 Islam and Constitutionalism in the Arab World:

The Puzzling Course of Islamic Inflation 289
nathan j. brown
13 The Politics of Sacred Paralysis: Islam in Recent Moroccan
and North African Constitutions 317
d a v i d m e d n i c of f
14 Dancing by the Cliff: Constitution Writing in Post-
Revolutionary Tunisia, 2011–2014 343
nadia marzouki

PART V Lessons from the Cases 371

15 Designing Constitutions in Religiously Divided
Societies 373
a s l i ü. bâl i a n d h a n n a l e r n e r

Index 397
 CONTRIBUTORS

asli ü. bâli is Professor of Law at the UCLA School of Law and the Director
of the UCLA Center for Near Eastern Studies.

nathan j. brown is Professor of Political Science and International Affairs

and the Director of the Institute for Middle East Studies at George Washington
University.

souleymane bachir diagne is a Professor in the Departments of French

and Philosophy at Columbia University.

mark farha is Assistant Professor of Politics and International Relations at

the Doha Institute for Graduate Studies.

helen hardacre is the Reischauer Institute Professor of Japanese Religions

and Society at Harvard University.

mirjam künkler is Professor at the Institute for Advanced Study in the

Humanities and Social Sciences at the University of Göttingen.

hanna lerner is a Senior Lecturer in Political Science at Tel Aviv University.

john t. s. madeley was a Senior Lecturer in Government at the London

School of Economics and Political Science until his retirement in 2009.

nadia marzouki is a permanent research fellow at CNRS (Centre National

de la Recherche Scientifique), Paris.

david mednicoff is the Director of Middle Eastern Studies and Assistant

Professor in the School of Public Policy at the University of Massachusetts-
Amherst.

matthew j. nelson is a Reader in the Department of Politics at SOAS,

University of London.
vii
viii lis t of contributo rs
ergun özbudun is Professor of Constitutional Law and Political Science at
Istanbul Şehir University.

shylashri shankar is Senior Fellow at the Centre for Policy Research in

New Delhi.

tine stein is Professor of Political Theory and the Executive Director of the
Institute of Social Sciences at the Christian-Albrechts-University of Kiel,
Germany.
 ACKNOWLEDGEMENTS

We are grateful to the Rockefeller Foundation Bellagio Center in Italy

for hosting our first workshop on Constitution Writing, Human
Rights and Religion, where early drafts of most of the chapters
included in this volume were presented in 2012. Some of the chapters
were also discussed during a second workshop on Constitution
Writing, Religion and Human Rights held in 2014 at the Center for
Interdisciplinary Research (ZiF), Bielefeld University, Germany.
The participants in both workshops were generous with their invalu-
able suggestions for the particular papers, as well as for the organizing
concept of the book. We would particularly like to thank Tom
Ginsburg, Bill Kissane, Tamir Moustafa, Ulrich Preuss, Ben
Schonthal, Alfred Stepan and Mila Versteeg for the wise counsel they
provided.
ZiF at Bielefeld University in Germany provided us with a most
comfortable and inspiring place to complete our editorial work on this
volume. Taking part in the research group on “Balancing Religious
Accommodation and Human Rights in Constitutional Settings,” orga-
nized by Mirjam Künkler, Hanna Lerner and Shylashri Shankar, during
the summer and fall of 2014, contributed tremendously to our thinking
about religion and constitution making. We are grateful to all of the
fellows in the research group and the dozens of participants in the
seminars and various workshops that took place during the summer
and fall of 2014 for challenging our views and broadening our perspec-
tives on these issues. In addition, we would like to thank the participants
of the UCLA Law School Faculty Workshop for constructive comments
on an early draft of the theoretical framework for the book; Omar Dajani,
Raquel Aldana and the participants of the University of Pacific McGeorge
School of Law Faculty Workshop for generous comments on a later draft
of the theoretical framework; and Intisar Rabb, William Alford and
participants of Harvard Law School’s International and Comparative
Law Workshop for helpful feedback on the concluding chapter of this
ix
x acknowledgements

volume. Finally, we would like to thank Aaron Glasserman for his superb
research support, Aileen Kim and Jessica Blatchley for additional
research assistance, Tal Grietzer for extraordinary technical assistance,
and especially Elizabeth Spicer and Marianna Prizio at Cambridge
University Press with whom it has been a pleasure to work on this
volume.
 1

Introduction
asli ü. bâ li and hanna lerner

The twenty-first century has been characterized by two converging trends

that lie at the heart of this book project. First, there has been a pronounced
resurgence of religious conflicts not only between states but also, crucially,
within a substantial number of states. From western Europe to Asia and the
Middle East, religion has re-emerged as a salient factor in international as
well as in domestic politics. Religious identity and religious law have
become focal points of legal, political, and public tensions, particularly,
but far from exclusively, in Muslim-majority regions. Second, the legacy of
rule of law and good governance–oriented civil society initiatives of the
1990s has yielded an ongoing interest in legal and constitutional reform as
a means of fostering or consolidating democratization and, where possible,
promoting conflict mitigation or resolution. One expression of this trend
has been the judicialization of politics, and the increasing role that law and
courts have played in what was conventionally perceived as “political”
affairs, on both the domestic and international levels. Even more signifi-
cantly, a striking number of new constitutions have been written or
rewritten over recent decades,1 which has been the subject of growing
interest among practitioners in developmental agencies and international
organizations.2
1
More than half of the world’s constitutions were written or rewritten between 1975 and
2005 (Elkins et al. 2009: 215–222). Since then several additional countries adopted new
constitutions (for example, Egypt, Fiji, Nepal, Tunisia, Vietnam, and Zimbabwe) while
others initiated processes of constitution-making or made substantial amendments to
their written constitutions (Turkey, Liberia, Nepal, Tanzania, Chile, Libya, Yemen, Sierra
Leone, Trinidad and Tobago, the Solomon Islands, Myanmar, South Sudan, Sri Lanka, and
Zambia) (Bisarya 2013: 1).
2
Among the international organizations or developmental agencies involved in constitu-
tional advising, one could mention for example: The International Crisis Group (ICG),
International Development Law Organization (IDLO), Interpeace, International IDEA,
Organization for Security and Co-operation in Europe (OSCE), The Public International
Law & Policy Group (PILPG), the Peace Research Institute Oslo (PRIO), United Nations

1
2 asli ü. b â l i a n d h a n n a l e r n e r

These two trends have converged in recent years as tensions over

religion–state relations have become increasingly more central in pro-
cesses of constitution writing and rewriting around the world. Conflicts
over religious law and religious identity were the focus of constitutional
debates after the Arab uprisings in countries such as Egypt and Tunisia as
well as in democratizing Asian countries such as Indonesia and Nepal.
Even in Western democracies, questions concerning constitutional defi-
nitions of secularism have re-emerged with the growing role of religion in
politics.3 Surprisingly, however, this distinctive feature of the current
wave of new constitutional exercises has remained relatively understu-
died: the challenge of democratic constitution-drafting under conditions
of disagreement over the state’s religious or secular identity. While there
has been some attention to the broader question of constitution-making
in divided societies (Choudhry 2007; Horowitz 2013; Lerner 2011;
Lijphart 2004), the particular problems raised by religious conflicts have
not garnered significant attention.
What role do constitution-drafters play in mitigating disagreements
over the religious character of the state? How is religion debated by
constitutional framers? What kind of constitutional solutions may recon-
cile democracy and human rights protection with the type of religious
demands raised in democratizing or democratic states such as Egypt,
Tunisia, and Indonesia? To what extent do the method and procedures of
constitution-making affect the type of constitutional arrangements
designed to address tensions over questions of religious law or religious
identity? This volume is designed to tackle these questions by drawing on
a broad range of case studies of past and current constitutional debates
revolving around religious conflict, and by examining the various ways
constitutional drafters have addressed religion-related tensions.
In exploring the role of religion in constitution-making, the book is
situated at the intersection of several scholarly discussions in the study of
constitutionalism, politics, and religion. The judicialization of politics
and the legalization of social issues combined with a growing literature in
the sociology of religion have fostered increased scholarly interest con-
cerning the role constitutional law and adjudication play, or should play,

Development Programme (UNDP), United States Assistance for International

Development (USAID), United States Institute of Peace (USIP), and German Agency
for International Cooperation (GIZ).
3
Constitutional debates about religion range from debates concerning abortion in several
Western countries to new questions about the state’s relationship to minority religions
which have intensified with growing immigrant communities.
 introduction 3

in balancing religious accommodation with a preexisting constitutional

commitment to liberal rights protections (Arjomand 2008; Cohen and
Laborde 2015; Durham et al. 2013; Hirschl 2010; Jacobsohn 2005;
Mancini and Rosenfeld 2014; Venter 2015; Zucca 2012; see also Künkler,
Lerner, and Shankar 2016). These studies are interested by and large in
examining how religious disputes are addressed in existing constitutional
arrangements, and thus they rarely consider questions of constitutional
design. Further, because much of this literature focuses on the challenge of
religious identity–based claims in the liberal constitutional tradition, socie-
ties grappling with these questions outside of the liberal tradition have
received less attention. By contrast, the literature that focuses specifically
on constitutional design, whether through large-N studies or through
more qualitative studies of single cases, tends to discuss institutional
mechanisms for regulating intergroup competition to facilitate democratic
governance without attending to the particular challenge of core normative
conflicts such as those grounded in religious claims and identities (e.g.
Arato 1995, 2016, Elkins et al. 2009, Negretto 2013; Galligan and Versteeg
2013; Ginsburg 2013). Even the studies that focus on constitutional design
in divided societies tend to focus on institutional aspects of the constitution
and on issues of distributive competition, paying comparatively little
attention to tensions over rhetorical/symbolic usage of religious concep-
tions in constitutional texts as part of the struggles to define the identity of
the state as a whole (Choudhry 2008: 15–88; Horowitz 1985, 2011; Lijphart
2004: 96–109). Finally, scholars engaging in qualitative empirical studies of
constitutional debates in the context of religious differences usually focus
on a single case study, providing an analysis bounded by the unique
historical, cultural, political, and legal context of that case.4
In short, there is a gap in the literature when it comes to addressing the
question of the role of religion in democratic constitution-making in
comparative context. This book aims at filling the gap by exploring the
various ways constitutional drafters have addressed religious conflicts in
fourteen different countries. The cases examined in this volume include
Egypt, Germany, India, Indonesia, Israel, Japan, Lebanon, Morocco,
Norway, Pakistan, Senegal, Sri Lanka, Turkey, and Tunisia. The focus
of the case studies is on the drafting process and its relationship to
outcomes, taking the constitutional provisions themselves not as
4
See, e.g. on Turkey, Bâli (2012) and Özbudun and Genckaya (2009). On India, see
Bhargava (2010). On Indonesia, see Hosen (2007) and Horowitz (2013). On Malaysia,
Stilt (2015). On Egypt, Brown and Lombardi (2012). On Sri Lanka, Schonthal
(forthcoming).
4 asl i ü. b â l i a n d h a n n a l e r n e r

a starting point for the discussion but as the object of study. Drawing
from primary archival sources and/or interviews with those involved in
the constitution-drafting process, chapters that study individual cases
analyze the central points of disagreement in the relevant constitutional
debate, the process of deliberation, and the types of constitutional
arrangement adopted by the drafters as well as the decisions to leave
certain issues outside of the constitutional document. In chapters with
a comparative approach, the same questions guide comparisons across
one or more cases.
By exploring the political deliberations and compromises made dur-
ing the constitutional drafting process, the case studies analyze not only
the provisions included in the final document but also previous drafts
and suggestions that were rejected by the drafters. The same is true for
subjects of debate on which compromises may have been struck before
the drafting process began. Further, the historical and political contexts
of each case – including the legacies of earlier colonial or imperial
periods, patterns of elite composition, the ideological commitments of
key participants in framing constitutional debates, and the determinants
of decision-making processes adopted – inform the ability of the studies
to offer a novel assessment not only of the drafts ultimately promulgated
but also of the alternative paths that might have been pursued. Taken
together, the case studies enhance our understanding of the contested
nature of religion–state relations in any particular constitution and also
provide a unique perspective on the interplay between law and politics
in contexts of deep disagreement over basic norms and values of the
state.
Further, by enlarging the scope of comparative analysis to relatively
understudied cases, such as Sri Lanka, Senegal, Indonesia, Morocco,
Lebanon, Pakistan, and Japan, the chapters offer scholars as well as
practitioners involved in constitution-drafting processes a wider range
of potential models and lessons drawn from recent experience. By and
large, the Western constitutional imagination of models to regulate
religion–state relations has relied on a narrow set of constitutional
narratives, focusing particularly on the American Constitution, the
French Revolution, and a few additional examples drawn from Western
democracies (Klein and Sajó 2012; Whittington 2008: 294–95).
By broadening the range of empirical examples to draw upon, and by
focusing on empirical studies of recent and current constitution-writing
projects that involve sustained controversies over the question of reli-
gion, the case studies provide a comparative basis for an empirically
 introduction 5

grounded theory, which we outline in the concluding chapter of this

volume (Chapter 15). In this light, the cases of democratizing Muslim-
majority states such as Senegal (Chapter 6), Indonesia (Chapter 8), and
Tunisia (Chapter 14) are of particular interest. Constitutional innova-
tions in these, and other, countries have developed important, if provi-
sional, accommodations for religious law while preserving individual
rights protections. These Muslim cases are more likely to influence
constitutional drafters in newly democratizing Muslim-majority states
as potential models for their own situations than the conventional mod-
els drawn from the North Atlantic context, which derive from earlier
debates in Christian-majority societies.
Some of the chapters focus their analysis on questions of religious
identity and religious symbolism, (e.g. whether the term “god” is
mentioned in the constitution, as in Germany; see Chapter 4). Yet
many of the cases discussed in this book have in common a specific
interest in more substantive issues such as rights of religious mino-
rities (Morocco; see Chapter 13), status of religious law (Egypt and
Tunisia; see Chapters 12 and 14), and the interpretive authority
accorded to religious/political institutions (Pakistan; see Chapter 10).
The wide range of cases that consider religious law and its place in
constitutional debates, a question not often addressed in the literature
on religion–state relations, helps correct for biases in the literature
that may be a consequence of models of religion–state relations
extrapolated largely from the history of Western Christendom.
By engaging with a spectrum of constitutional models in democratic
systems that offer some accommodation for religious (personal status)
law, the cases shed light on normative insights previously understu-
died in the literature on comparative constitutional design.
At the same time, the meaning of “religion” or of “secular” has
been understood differently by constitutional drafters in different
countries, and affects the way these concepts have been analyzed in
different chapters. Given this variation among the cases presented in
this volume concerning the nature and intensity of the religious
conflicts debated by drafters in different countries, an immediate
question to be addressed is whether there is anything specifically
distinctive that unites these cases and presents common theoretical
questions. In other words, is there anything special in the way con-
stitutional drafters address religious conflicts? Or, in short, are con-
stitutional debates on religion special?
6 asl i ü. b â l i a n d ha n n a l e r n e r

Is Religion (in Constitution-Drafting) Special?

Religion plays an extensive role in contemporary constitution-drafting.
Indeed, while the salience of religion as a source of conflict has ebbed and
flowed, the importance of religious identity to the political debates that
inform constitution-drafting has been relatively continuous over the last
century. Whether in the context of postcolonial state-formation or in
more recent constitutional exercises, a large proportion of constitutions
have been drafted against the backdrop of significant contestation over
questions of state–religion relations. A brief comparative view reveals
that almost all constitutions in the world today have some reference to
religion. Out of 194 constitutions in existence today, 186 mention the
word “religion” and 183 include some form of formal guarantee of
religious freedom.5 A total of 114 constitutions (58.7 percent) mention
terms such as “God,” “the divine,” or other deities.
Based on the research contained in the following chapters, as well as an
examination of further cases that lie beyond the scope of this volume, we
believe the answer to the question of whether religion raises special
questions for constitution-drafting is a qualified yes. The qualification
of our positive answer stems, first and foremost, from the empirical
difficulty in defining the boundaries between religious conflicts and
other related societal, ideational, or political conflicts. There is often an
overlap between religious divisions and other axes of tension, including
those with ethnic, linguistic, class, or regional characteristics.
Another difficulty that challenges any attempt to develop a theoretical
framework based on comparative analysis of religion in constitution-
drafting stems from the degree of variation with respect to the nature of
the conflict underlying the constitutional debates and the level of inten-
sity by which religious issues were discussed by constitutional drafters.
This is because the nature and intensity of the religious divisions that
characterize different societies, and which are reflected in their constitu-
tion-drafting debates, vary significantly.6 Different religious traditions
also present different kinds of challenges in a constitution-drafting con-
text: Catholicism raises the question of structuring relations between the
state and a hierarchically organized external authority, the Vatican; Islam
raises the question of the relationship between state law and shari’a.

5
Data from Comparative Constitutions Project. See also Ibán (2013: 37–55).
6
This variation is linked to documented decline in religious beliefs in some countries, as
well as to other historical developments, including the emergence of secularism. See, e.g.
Taylor (2007); Norris and Inglehart (2004); Casanova (1994).
 introduction 7

Religious traditions represent an array of conceptions of authority,

bureaucratized clerical institutions, and legal traditions governing every-
thing from the structure of family to the content of education. Given the
variation across religious traditions, there may be no single, universally
applicable way of defining precisely how religion is distinctive.7
Moreover, any comparative analysis of constitutional debates on reli-
gion tackles the difficult challenge of definitions. Terms such as “religion,”
“religious,” “secular,” or “secularism” are often understood differently by
different members of the same society, let alone the great variation in their
meaning across different societies, cultures, or historic periods (Asad 2003;
Berger et al. 2008; Bhargava 1998; Bowen 2010: 680–694; Bruce 2002;
Casanova 2006; Calhoun et al. 2011; Katznelson and Jones 2010; Laborde
2015; Taylor 2010; Warner et al. 2010).
While we are aware that “religion” is a contested term and that there is
a substantial literature addressing such definitional questions,8 we have
left the debates over the definition of “religion” outside the scope of this
book. Rather, in this chapter and in the case study chapters included in
the volume, we adopt the definition of religion employed by the actors
and groups under study. That is, if the parties believe that their disagree-
ments are over questions of religion or have a religious character, we
accept that designation.
As the rest of the book demonstrates, regardless of the specific nature
of the religious divisions and their intensity across cases, there is some-
thing about conflicts over religious questions that cannot be reduced to
or conflated with other kinds of material or identitarian conflict.
The debates canvassed in the chapters are not just proxies for conflicts
over class, geographic, ethnic, or linguistic differences. Rather, they
reflect conflicts over beliefs, values, and normative commitments that
have proven to be remarkably durable. We do not argue that all societies
marked by religious diversity experience such conflicts, but those socie-
ties marked by religious conflict share common features that are not
present where conflicts are less over beliefs and values than over interests

7
For some examples of long-standing debates about the definition of religion and the
question of whether it is distinctive across a number of contexts and disciplines, see,
Geertz (1973: 87–125); Asad (1993: 27–54); Platvoet and Molendijk (1999); Schwartzman
(2012: 1351).
8
For example, a definition of “religious” parties, common to the literature on political
parties, emphasizes the fact that by contrast to other ideological parties, in religious parties
the basis of the party’s programs is determined by tradition and its interpretation by clerics
and/or religious institutions outside of the party itself (Gunther and Diamond 2003: 182).
8 asl i ü. b â l i a n d h a n n a l e r n e r

and distributional questions. While it is difficult to isolate the ideational

elements of religious divisions from the social structures in which they
are embedded, political fragmentation over questions of religion pro-
duces distinctive challenges.
Religious conflicts present a special problem in the context of
constitution-drafting for another reason. Both religions and constitutions,
to borrow from John Searle’s terminology, include “constitutive rules”
(Searle 1995: 27–28). In contrast to “regulative rules,” which regulate
activities present in a society, constitutive rules create the very possibility
of certain activity (ibid.).9 Both religions and constitutions not only
regulate human behavior and activities, but also create the very possibi-
lity of social, political, and legal practices and institutions. The practices
and institutions created by religions often compete with the political and
legal institutions brought into existence by constitutions. For example, in
the case of parallel judicial institutions, which exist in pluri-legal systems,
especially in the area of personal status law, such competition can be
quite pronounced (Sezgin 2013).
Historically, the question of the separation of religious and temporal
authority has long been one of the central battles of modernization and
state-formation, especially in the European context. This was in part
because, unlike other identity categories or sources of affiliation, religious
authorities make competing demands of obedience on the individuals
constituting the state (Stepan 2001: 213–253). In some religious tradi-
tions, religion is also a competing source of law and invokes a legal
tradition outside of the state (Revkin 2014, 34–45). Elsewhere, there is
a long history of religious political parties that structure political con-
testation in ways that make religious identity more salient (Fogarty 1957;
Kalyvas 1996). Further, for societies that are former colonies, colonial
governors often used religion to legally define the communities in the
territories under their administration. Thus colonial legacies and
the legal patrimony inherited by the postcolonial state are marked by
the entrenchment of religion in law. These characteristics of religion
continue to have important institutional and ideational implications in
contemporary religiously divided societies undertaking constitution-
drafting exercises. As the chapters in this volume demonstrate, these
9
Searle uses the example of driving rules versus chess rules to explain the difference between
the two types of rule. “Don’t drive on the right side” is a rule that regulates driving, an
activity that existed prior to any driving rules. By contrast, rules of chess do not regulate an
antecedently existing activity but rather “the rules of chess create the very possibility of
playing chess.”
 introduction 9

and many other factors affect the constitutional debates on issues related
to religion, including, for example, colonial legacies, geographical region-
alism, the composition of drafters (e.g. whether external actors or domes-
tic representatives), or the type of drafting process (e.g. whether
top–down imposition or bottom–up participatory process).10

The Limits of Constitutional Design

The case studies discussed in the following chapters vary not only in the
understanding of religion, but also with respect to the understanding of
what constitutions should or can do. They also vary in the definitions that
they use for common constitutional terminology. While in some cases
the analysis of the debates focuses on the constitution with a capital C,
referring to the formal written constitution, in other cases the debates
under study concern the constitution with a lowercase c, namely refer-
ring more broadly to the material constitution,11 which may include
judicial and legislative interpretations. The chapters on West Germany
(Chapter 4) and Tunisia (Chapter 14), for example, exemplify the former
case, while the chapters on Norway (Chapter 2) and Pakistan
(Chapter 10), the latter. In some cases, chapters refer to both meanings
of constitutions, as in the chapters on Japan (Chapter 3) and on
Indonesia (Chapter 8).
While the chapters vary in their approaches, terminology, and factors
that influence the drafting process, the book rests on the presumption
that a careful qualitative examination of cases where religion was
a significant axis of contention in the constitutional process would help
identify issues to be taken into consideration by those engaged in con-
temporary drafting projects under conditions of religious division.
Studying a range of societies grappling with religious divisions while
writing constitutions provides a basis for new theoretical contributions
drawn from comparative experience. Of course, there can be no single set
of constitutional design prescriptions that would apply across contexts.
Moreover, the empirical cases demonstrate that whether intentionally or
unintentionally, religion is often regulated outside the formal framework
of the written constitution through ordinary legislation or judicial
10
We have addressed these issues in the concluding chapter of this book (Chapter 15).
11
According to Hans Kelsen, material constitution is a system of formal and informal rules
that regulate the political order and that could be based on conventions, customs, and
judicial interpretations. Kelsen distinguishes between such a constitutional system and
a formal constitution, which generally refers to a written document. See Kelsen 1961.
10 a sl i ü. bâ l i a n d h a n n a l e r n e r

interpretation. Nevertheless, the book enlarges the menu of options

already defined in the literature through careful consideration of insights
to be gleaned from comparatively understudied cases. These insights are
presented in the concluding chapter of this book (Chapter 15).
As discussed in greater depth in that final chapter, the case studies
expand the range of constitutional tools and strategies discussed in the
comparative legal and political literature by identifying novel design
features drawn from the cases and their merits, beyond the common
normative framework of liberal constitutionalism. The lessons drawn
from these understudied cases are not presented to displace the value
of the liberal constitutional model, which has dominated the literature on
constitution-making in general, and in the context of religious disagree-
ments in particular (Bâli and Lerner 2016). Rather, the book aims at
supplementing the literature by revealing an array of previously under-
examined constitutional solutions of potential interest in constitution-
drafting exercises.
Most significantly, when taken together, the studies included in this
book reveal that the expectation that constitution-drafting should be
designed to resolve long-lasting and deeply rooted societal disagreements
on religious issues is often unrealistic, and that constitutional drafters in
religiously divided societies often acknowledge the limited role formal
constitutions may play in mitigating religious conflicts. Most contribu-
tions to this volume diverge from the commonly held presumption that
the constituent power rests with a clearly defined, preexisting people, or
that constitution-writing is by definition an act of invention (Preuss
1995: 109, 122–123; Klein and Sajó 2012: 435). The cases considered in
this volume rarely exemplify the model of a constitution that creates
a new order ex nihilo. Nor are the cases examples of “we the people”
engaging in higher-order law-making through deliberation in a “consti-
tutional moment” (Ackerman 1991). Rather, constitution-drafting
exercises that are undertaken by societies marked by disagreement over
matters of identity and power-sharing sometimes arrive at more provi-
sional configurations. Under conditions of religious disagreement, con-
stitution-drafting exercises often draw on a mix of extant constitutional
repertoires – from the underlying society, regional experience, or inter-
national influences – and novel formulae for coexistence to fashion
constitutional bargains at a particular juncture. These bargains, in turn,
may produce new and shared civic identities and durable compromises to
mitigate conflict or thinner modus vivendi that serve a specific purpose at
a critical time. Our alternative starting-point, which neither assumes
 introduction 11

a preconstitutional consensus on identity nor expects constitutions to be

acts of de novo invention, offers an innovative approach to the study of
constitution-making.
This volume studies how societies grappling with constitution-writing
against a backdrop of disagreement about the religious or secular identity
of the state have produced constitutional compromises and design inno-
vations that help address the challenges they face. Such alternative con-
stitutional models may not only be understudied but also undervalued by
scholars and policymakers due to their divergence from liberal presump-
tions concerning the virtues and qualities of constitutions grounded in
a commitment to secularism. The qualitative study of the debates and
divisions that produced constitutional formulae in these societies helps
explain the logic behind the bargains struck and illuminates attendant
benefits that might otherwise be overlooked. Arrangements that are
understood to be second-best to prevailing models of liberal constitu-
tionalism might actually serve as first-best design features where the
alternative is a zero-sum conflict over the definition of state identity in
a polarized context. Constitutions that are written not out of consensus
but instead to produce a framework to channel and manage dissensus
concerning the normative identity of the society may accomplish impor-
tant ends even if they defer rather than resolve key conflicts. The case
studies described in the following overview of the chapters enrich our
understanding of the possibilities and limitations of constitutional design
in countries where debates over the religious or secular identity of the
state are salient.

Overview of the Chapters in This Volume

The rest of the chapters in the volume are divided into four parts. Part I of
the book includes three case studies of countries that underwent consti-
tution-making processes with elements of external imposition under
conditions of either partial colonization or belligerent occupation.
The three cases addressed in this section are those of Norway, Japan,
and West Germany.
The 1814 constitution of Norway, Europe’s oldest surviving constitu-
tion, was drafted under conditions of partial occupation as Denmark
relinquished its long-standing dominion over Norway, transferring it to
Sweden. In the Norwegian case, the constitution-drafting process was
undertaken by an appointed assembly of 112 members and the principal
issue concerning religion–state relations was whether to embrace
12 asl i ü. b â l i a nd ha n na l e rn e r

a constitutional principle of religious freedom. As John Madeley shows

(Chapter 2), the drafters of the Norwegian constitution famously – and
rather mysteriously – neglected to include in their constitutional text
such a guarantee of religious freedom, despite drawing on the American
and French revolutionary constitutions for inspiration. The chapter
traces the 200-year process by which this omission was gradually
addressed, chronicling how the country arrived at a constitutional reform
that formally (though only partially) disestablished the Evangelical
Lutheran Church in 2012. Madeley’s chapter reveals that a gap was
produced over this long period between the formal constitution, with
its relatively stable text, and the evolution of state–religion relations on
the ground. This gap was ultimately bridged by a series of constitutional
amendments in 2012.
The second chapter in this part by Helen Hardacre studies the
constitution-making process in Japan (Chapter 3), under Allied occupa-
tion in the wake of the Second World War. The constitution-drafting
process in the Japanese case represented the highest degree of external
imposition across the cases, with an occupation-drafting committee of
twenty-four members (sixteen officers and eight civilians) that included
no Japanese participants and completed its work in a single week.
The principal issues concerning religion–state relations addressed by
the resultant draft, which incorporated the terms of the earlier Shinto
Directive, were provisions for unconditional freedom of religious belief
and the prohibition on public funding for religious organizations and
religious education. The chapter assesses the reactions of the religious
world based on Allied occupation and Japanese bureaucrats’ documents
and exchanges, contemporary press coverage, parliamentary debate, and
a variety of religious publications. Drafted unilaterally by occupation
officials, the postwar constitution differs radically from its predecessor,
the Constitution of the Empire of Japan (1889). While both documents
present Japan as a secular state, the earlier constitution – in connection
with other laws – permitted a public role for Shinto, which allowed that
tradition to gain independence and a powerful social position. The
postwar constitution and associated occupation documents and policies
mandated unconditional religious freedom, as well as explicitly severing
the connection between the state and Shinto (and all other religions).
The chapter documents how Shinto became a rearguard bastion of ultra-
conservatism, based on its resentment of the occupation having deprived
it of its former power and prestige. The consequences of Shinto’s
politicization persist to the present. While the occupation-drafted
 introduction 13

constitution remains in force in Japan, the ruling Liberal Democratic

Party has laid the groundwork for thorough-going revisions that pro-
mise, among other things, to permit some Shinto rituals to be publicly
funded again.
The first part concludes with Tine Stein (Chapter 4) addressing the
case of German constitution writing in the aftermath of the Second
World War, again under Allied occupation. In the West German case,
the constitution-drafting process was undertaken by a parliamentary
council (Parlamentarischer Rat) selected on the basis of proportionate
representation. When the three German west zones started considera-
tions about a new constitution with the emerging threat of a schism
between East and West, the Western allies lay critical foundations,
requiring that the new state should be based on a federal structure,
have a democratic government, follow the principle of the rule of law,
and guarantee individual rights in the constitution. But with regard to
religion, no specific demands were made by occupation powers. Thus,
the Parlamentarischer Rat was free to develop a specific German modus,
combining the clear-cut formula for the separation of church and state in
the tradition of the Weimar Republic with demands for a distinctive
religious dimension in the constitution. In the chapter, Tine Stein first
illuminates the constitutional process by which this formula was devel-
oped and then discusses some of the controversies concerning religion.
Such controversies included the symbolic issues such as whether the text
should include an invocation of God, the normative basis for the provi-
sion on human dignity (Article 1), and the constitutional debate over
whether to favor public state schools over parochial schools and parental
rights in matters of religious education. Ultimately, the constitutional
formula arrived at in 1948–1949 has proven durable, though new chal-
lenges including the religious demands of minority and immigrant com-
munities may prove unsettling going forward.
Part II groups together postcolonial and postimperial constitution-
writing exercises undertaken under French influence. The cases included
in this section are those of Lebanon, Senegal, and Turkey.
The first chapter in this part (Chapter 5), written by Mark Farha,
considers the Lebanese postcolonial constitutional experience. A widely
accepted and repeated narrative of the drafting of the constitution of the
Lebanese Republic in 1926 has placed the onus for its confessional articles
on the French Mandate authorities who were allegedly acting to preserve
Christian and, more particularly, Maronite predominance. This histor-
iography tends to resonate with the thesis which singles out the European
14 a sl i ü. bâ l i a n d ha nn a l e r n e r

colonial project as the chief “culprit” of sectarianism. Farha reveals, upon

closer inspection of the critical period of the drafting of the constitutive
1926 document (which was amended in the 1990 Tā’if Accord), a more
complex bargaining process in which the Lebanese members of the
constitutional committee in fact pressed for communal prerogatives to
a greater degree than the French mandatory powers. The committee was
formed under French Mandate authority on the basis of confessional
representation – between the Christian, Sunni, and Shia communities –
with Christians disproportionately represented. The principal issues
debated by the committee concerning religion–state relations had to do
with the confessional character of the state, the status of religious family
law, and the prospects for secularization. Relying on the minutes of the
meetings, this chapter contextualizes the explicit references to the French
Constitution of 1905 and the Swiss and Belgian constitutions, which were
discussed as possible paradigms for the Lebanese multi-confessional
society. At the end of their deliberations, the deputies conceded to
a midway compromise solution between the secular, republican ideal
many espoused emotively and the disheartening communal reality they
were confronted with on the ground. Farha shows that this compromise
took the form of provisional articles (aspiring to the elimination of
confessionalism over time) and the adoption of contradictory provisions
(including formal reference to full freedom of faith and an exclusively
confessional recognition to citizenship and participation in the state).
Lebanon’s composite constitution thus reflected a fragile balance
between the competing and inconsistent demands of the delegates.
Although this constitutional bargain ultimately collapsed into a civil
war in 1975, the most recent iteration of constitution-drafting in the
postwar period resulted in the ratification of the Tā’if Accord in 1990,
which reinstated a slightly modified version of the confessional balance
originally struck in 1926.
Souleymane Bachir Diagne offers a detailed consideration of the
Senegalese case in the next chapter in this part (Chapter 6). Senegal has
had four constitutions in a little more than fifty years. The constitution-
drafting processes in Senegal were undertaken alternately by appointed
committees and elected assemblies over the years, though the principal
presiding force over all of the drafts from independence until he stepped
down from the presidency in 1980 was the country’s founding statesman
Léopold Sédar Senghor. The principal issues concerning religion–state rela-
tions in the constitutional debate were, first and foremost, the description of
Senegal as a “laïc” (secular) republic and the definition of the constitutional
 introduction 15

principle of secularism associated with that claim. The first constitution

was adopted in 1959 when Senegal and Mali constituted a federation
called “Sudan.” The 1960 constitution followed the break between Mali
and Senegal, when each became an independent state. The third con-
stitution was adopted in 1963 following a political crisis, when Senegal
chose to have a presidential regime, ending the experience of being
a parliamentary republic. The current constitution was adopted in
2001 following the election of Abdoulaye Wade as the first president
of the country from outside of Senghor’s political lineage. Interestingly,
a draft version of the most recent constitution, which was leaked (per-
haps intentionally), has excised reference to Senegal as a “laïc” republic,
a word that had been present in all three previous constitutions.
Eventually, following an uproar over this leaked version, the word
“laïc” was restored, and the fourth constitution was then adopted
through a referendum. Through the prism of this episode, the chapter
examines the meaning of Senegal’s “laïcité” by tracing its definition to
the foundational philosophical vision of the country’s first president.
Further, the chapter examines the significance of Senegal’s underlying
religious composition, made up of powerful Sufi orders. The country,
which has been nicknamed a “République confrérique” (a Republic of
[Sufi] brotherhoods), has retained its secular identity while going
through several constitutional iterations that return to but ultimately
preserve its balance of state–religion relations. The chapter also con-
siders recent debates, outside of the constitution-drafting process, con-
cerning the Senegalese Family Code and the accommodation of
personal status laws in the legislative process.
The last chapter in this part (Chapter 7) by Ergun Özbudun examines
the constitution-drafting process in Turkey, a postimperial republic
heavily influenced by the French republican model. The constitution-
drafting processes in Turkey have been varied, with the first constitution
(1924) drafted by an elected sitting parliament under conditions of single-
party rule and the subsequent drafts being produced by drafting commit-
tees appointed under military rule (1961, 1982). The principal issues
concerning religion–state relations across these constitutional debates
include the definition of “secularism,” the status of religious education,
bans on religious parties, state control over religious authorities and
institutions, the prohibition of religious brotherhoods, and the public
visibility of religion. In this chapter, Özbudun argues that the republic’s
exclusionary and assimilationist policies – inspired by the French
model – in both the single-party and the multiparty periods deepened
16 a sl i ü. bâ l i a n d ha n n a l e r n e r

and aggravated conflicts over these core debates. The division between
secular and secularizing state elites and the conservative and pious per-
ipheral masses has been key to Turkish politics, starting from the late
Ottoman times, and continues to be the main cleavage line in contem-
porary Turkish politics. Most of the conflicts over religion in the con-
temporary constitutional arena result not from the principle of a secular
state per se, but from the peculiar understanding of Kemalist secularism,
which amounts to a positivistic ideology that aims to limit religion
exclusively to the private sphere. While the 1982 constitution remains
in force, multiple amendment packages have repealed and replaced over
one-third of its text, and demands to replace the whole document with
a new constitution remain central to contemporary Turkish politics.
Part III of the volume groups together South and Southeast Asian
postcolonial constitution-drafting processes in the former British and
Dutch colonies of the region, including the cases of Indonesia, India,
Sri Lanka (Ceylon) and Pakistan.
In the first chapter of Part III (Chapter 8), Mirjam Künkler reviews the
place of religion in the state at four constitutional moments of
Indonesia’s postindependence history: first is the constitution-making
process that preceded the country’s declaration of independence and
resulted in the 1945 provisional constitution. That constitution was
drafted by a sixty-two-member committee of Indonesian delegates
appointed by Japanese occupation authorities. Here the peculiar formula
of pancasila (five principles) was adopted that defines Indonesia as
neither an Islamic nor a secular state but a religious state that commits
its citizens to belief in one Supreme Being. Second, the provisional
constitution of 1950 adopted a rights catalogue inspired by the
Universal Declaration of Human Rights and included strong
commitments to religious freedom while redefining the country as
a unitary state after its withdrawal from the union with the
Netherlands, which it had de jure entered in 1949. Third is the elected
Constitutional Assembly 1956–1959, which was tasked with drafting
a permanent constitution for the country, but, being unable to reach
a consensus regarding the place of Islam in public law, was dissolved in
1959 when President Sukarno reinstated the 1945 constitution. Fourth is
the far-reaching amendment process that was undertaken in 1999–2002
in the aftermath of Indonesia’s transition to democracy. Although during
the first episode in 1945 most original drafts included a clause that would
have made Islamic law obligatory for Muslims, the clause was dropped in
a last-minute intervention. Constitutionally, religious law was never
 introduction 17

recognized as a source of law. At the same time, in the realm of family

law, the application of Islamic law not only survived but was even
expanded over time. The chapter argues that the binary between
Islam and secularism that dominated the constitution-drafting process
of the 1940s was replaced in the early 2000s by a binary between the
vision of an (exclusionary) Islamic state on the one hand and
a (inclusionary) pancasila state that accommodated Islamic law on the
other. The chapter explains that the pancasila formula itself has been
surprisingly durable even as it has remained contested since Indonesia’s
independence. Yet, while the formal constitution has been relatively
stable, the country has witnessed significant evolution in state policies
toward religion under authoritarian rule and since the transition to
democracy.
In the next chapter (Chapter 9) Shylashri Shankar examines the impact
of deferrals on the rights of minorities in three South Asian countries.
When India’s constitution writers, elected under British rule, assembled
in 1946 to discuss questions pertaining to religious freedom and the ethos
of an independent India, they were doing so in the shadow of an
imminent partition of the country into a land for Muslims (Pakistan)
and a Hindu-majority India. In Pakistan, a key question posed to the first
and second elected constituent assemblies (1947–1954; 1956) was about
the nature of an Islamic Republic in Pakistan. And in the neighboring
British colony of Ceylon, when the constitution-framers (a combination
of British colonial officials and appointed Sri Lankan elite representatives
selected by the British) met in 1946 to frame the postindependence
constitution, one of their primary concerns pertained to mending the
ethno-religious divide between the Sinhalese–Buddhist majority and the
Tamil–Hindu/Muslim minority. Shankar highlights the conditions –
level of inclusiveness of minorities in forums established to discuss
contentious issues prior to formal deliberations and the locus of consti-
tution-making (representative constituent assemblies or elite-driven
arrangements) – under which two types of rift are produced in the
constitution. She makes two related arguments. First, inclusive delibera-
tions during the constitution-framing process are more likely to produce
cross-cutting rifts, while noninclusive ones are more likely to create
overlapping rifts. Cross-cutting rifts where a person’s multiple identities
may conflict with one another in the commands issued by the constitu-
tion are less dangerous to minorities than overlapping rifts where
a person’s multiple identities (e.g. caste, religion, class) may overlap
considerably. Second, if the pre-constitution-drafting phase produces
Another random document with
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 "At your service," Ralph answered pleasantly. "I understand you want to
see me about this murder. Have you discovered anything?"

"I am sorry you have company, Mr. Ashley," the officer said in a quiet
tone, so that his words might not be overheard upstairs. "I am a detective,
and I hold a warrant for your arrest in connection with the murder of Sir
Geoffrey Holt."

"My arrest?" cried Ralph.

"Yes, sir," the officer replied. "You understand, of course, that I am only
acting in accordance with my instructions, and it is my duty to remind you
that anything you say will be available as evidence."

Ralph's first impulse was to laugh, but the grotesque horror of the
situation was too much for him. He drew himself up with dignity.

"I will come with you at once," he said. "Excuse me for a moment. I
must tell my guests that I am compelled to bid them good-night."

The detective hesitated, and Ralph flushed as he understood.

"By all means come upstairs," he said, with cold hauteur. "You will,
doubtless, excuse me if I refrain from introducing you to the lady who is
going to do me the honour of becoming my wife." He went upstairs again,
but his native instincts of a gentleman reasserting themselves in the brief
interval, he turned to the detective as they gained the roof. "I beg your
pardon for saying that," he said, with wonderfully winning courtesy;
"perhaps you will oblige me by allowing me to present you to Miss Austen.
Your name is——?"

"Anstruther," the man answered.

Ralph went up to Gwendolen.

"I'm sorry to cause you a minute's distress or anxiety, darling," he said,

"but this gentleman, Mr. Anstruther, requires my attendance in the matter of
Uncle Geoffrey's death."
 Gwendolen started up.

"Requires——?"

Ralph stroked her hand.

"I would rather you knew it from me, since you must know it. Mr.
Anstruther is instructed to detain me on suspicion of being somehow
implicated." He looked imploringly at the detective, who came gallantly to
his rescue.

"Merely on suspicion, Miss Austen," he said, in a full rich voice that

conveyed confidence somehow. "I am more sorry than I can say that it falls
to me to come on such an errand, but I fancy you would be the last to wish
me not to do my duty."

Ralph kissed Gwendolen, who clung to him.

"We must show a brave front, Gwen," he said. "It's horrible to think that
anybody can suspect me of having had a hand in the dear old man's death,
but since somebody does, the only thing now is to clear myself before the
world." He turned to Mrs. Austen. "If I should happen to be unable to come
home to-morrow, I wonder if you would mind taking up your quarters at the
Manor House? I should like to think that you and Gwen were there, and it
might be well if someone was available to help Mr. Tracy if necessary."

"Of course we will if you wish it," Mrs. Austen said. She was boiling
over with indignation at the outrage, but controlled herself admirably, partly
for her daughter's sake and partly from a natural pride which forbade her to
betray emotion. Indeed, they were all wonderfully self-possessed.

"A thousand thanks," Ralph said gratefully. "Martin will see you home
and will come on to get me anything I may want. Good-night, Mrs. Austen.
Good-night, my darling."

He pressed his lips passionately upon her mouth, and she returned him
kiss for kiss. Then, with head erect and a proud look on his frank and
boyish face, he led the way downstairs, followed by the detective; while, on
the houseboat, Gwendolen, clasping her mother's hand, strained longing
eyes upon his figure until it was lost to sight amid the shadows of the trees.

CHAPTER XVIII.

A FAITHFUL SERVANT.

For Ralph, in the period of forced inactivity that followed, existence

became a nightmare; the charge against him being one of murder, bail was
not granted, and his innocence, instead of making his incarceration
tolerable, added to its horror. He felt stifled, and raged at being shut up
within the four walls of a cell in this glorious summer weather, when, but
for the crass imbecility of some over-zealous detective, he might have been
luxuriating in the sunshine with Gwendolen on the Thames. By degrees,
too, a morbid nervousness took possession of him. When brought before the
magistrates he was astounded at the weight of evidence that seemed to have
been piled up against him in the interval; what a clever counsel for the
Crown might make of it all he was afraid to think, and talking about it to
Mr. Tracy afterwards, frankly admitted that he was beginning to feel
uncomfortable.

"If I'm committed for trial," he said, when, instead of being discharged
as he expected, he was remanded for a week, "I shall feel that I am half way
to the gallows. These lawyers are the very devil, and I don't believe a saint
would emerge from cross-examination with a rag of character left."

Mr. Tracy reassured him then, and Gwendolen cheered him up by her
loving sympathy.

"Mother and I have seen Melville," she said, "and we will not leave a
single thing undone to put an end to this horrible blunder with the enquiry
before the magistrates. I can't believe that it will be possible to twist facts
into evidence enough to justify your committal. It will be all right next time,
and I shall insist upon being married to you by special licence directly you
are discharged, as a sort of vote of confidence in you."

She would not allow him to guess how anxious she was, and spared him
all knowledge of how strongly the tide of public opinion was running
against him; but at the Manor House, when alone with her mother, she
broke out into a storm of indignation against her neighbours.

"It shakes one's faith in human nature," she said passionately, "that
anyone can be found to believe such a preposterous charge. Of course
Ralph knew he would be Sir Geoffrey's heir, and to suggest that he would
commit murder to antedate his possession by a few years is absurd. And
then all this haggling about minutes! Of course any man would change his
clothes before bothering to get himself a whiskey and soda. If there hadn't
been such an awful storm, Ralph would not have discovered the murder at
all; he would have gone straight up to The Grange without looking into Sir
Geoffrey's room."

For it was upon the time spent by Ralph in the boathouse that the police
were at present chiefly relying to substantiate the charge against him; they
showed that the moment suggested by the doctor as that when the fatal shot
took effect must have synchronised with Ralph's arrival in the boathouse,
and there was absolutely no evidence to show that anyone else had been
there at all. Mr. Tracy's suggestion that the murderer would scarcely be so
foolish as to leave his blood-stained garments lying on the floor was heard
politely, but not accepted as sufficient to warrant a discharge, and the
request of the police for a remand, pending further investigation, was
acceded to without dissent. So for another week they were obliged to
possess their souls in patience.

But while upon Gwendolen Ralph's arrest had only the effect of
increasing her love and developing her mental activity on his behalf, upon
Lavender Sinclair its effect was very different.

When she reached home, after parting from Melville at Waterloo on the
evening of the murder, she broke down physically. During the row from
Fairbridge to St. Martin's Lock she contracted a bad chill, which compelled
her to keep her bed. This, indeed, she was only too glad to do. In her
darkened room she lay with her throbbing head buried in the pillows, as if
to exclude from her sight the daylight that only served to remind her of the
work going on in the world; it would be someone's work to trace the man
who fired the shot, of which the sound still rang in her ears, and when he
was found——. She fought against her illness, which was real enough. If
she became delirious she might talk, and part of her penance for the future
would be the guard that she must ever keep upon her tongue. She almost
feared to sleep, lest an only partially unconscious brain should prompt her
to babble of that which she had seen. Gently, but firmly, she insisted upon
being left alone, and in her solitude she struggled to be well.

At first she kept aloof from all news of the world outside; would see no
papers, and checked Lucille's inclination to chatter, but soon this mood was
replaced by one of feverish desire to know what had happened at
Fairbridge; at any rate, she must not be taken unawares, and every day's
delay was a day's respite. In one of the weekly papers she read an account
of the tragedy and of the inquest that followed, and derived some vague
assurance from the frank admission of the police that they were absolutely
without a clue.

This relaxed the tension of her nerves, and when the next morning
dawned, she felt less ill and better able to resume her ordinary life. She
drew up the blinds and threw open the window; presently she would go for
a drive and let rapid motion through the fresh air banish the last traces of
the headache that had tortured her since—then. If only she dared she would
call at Jermyn Street, but her promise not to write to or call on Melville
must be kept. If she had kept her former promise to remain in the boat how
much agony she would have escaped!

She turned away from the window and looked round her room; she had
means to gratify all reasonable desires, and she was cat-like in her fondness
for warmth and soft rugs and cushions. All down one wall of her bedroom
was a broad settee spread thickly with down pillows and covered with
magnificent opossum rugs. Curtains, draped tent fashion from the ceiling,
screened this divan from every draught, and Moorish lanterns, filled with
scented oil, illumined it by night. An inlaid Syrian table stood near at hand,
and there was a suggestion of Oriental luxury about the place that seemed to
bar anything not conducive to repose. From a hanging wardrobe Lavender
took a comfortable peignoir, a French creation of billowy chiffon and lace
and ribbons, and leaving the windows open, stretched herself upon the
divan and pulled up the rugs breast high; and while she lay there waiting for
her maid to come to her, her thoughts wandered to what she stood to lose if
any change occurred in her life other than the one she might voluntarily
make by marrying Sir Ross Buchanan.

Except Melville, no one knew she had ever been Sir Geoffrey's wife,
and she might rely upon his respecting her wish for the secret to be
preserved now that she was in possession of this terrible secret of his. Sir
Geoffrey had held his peace about the past in which she had figured, and it
might be buried with him in his grave; the fear of prosecution for her
bigamous marriage with Mr. Sinclair, which Melville had conjured up so
vividly before her, was removed as well, and she could continue her
indolent existence as his widow at The Vale, or burst forth into a period of
splendour as the wife of the Scotch millionaire. No one knew of the picnic
up the river, and the procrastination, in which she had acquiesced through
terror and physical illness, had proved the safest and wisest policy after all.
Of such an offence as being an accessory after the fact in any crime,
Lavender, in her rather uneducated state, had no idea; if she had ever heard
the phrase, it conveyed no meaning to her. She would acquiesce in a policy
of absolute silence—forget her individuality as Lady Holt, and resume her
ordinary life as the widow of the estimable Mr. Sinclair, who had provided
for her maintenance on a scale that coincided so accurately with her desires.

Lucille tapped gently at the door and opened it softly in case her
mistress should be still asleep, but when she saw the open window and the
vacant bed she came in briskly, pleased to know that Lavender must be
better.

"I am glad," she said with a smile, "you are better?"

"Much better," said Lavender; "well, and more than ready for some
breakfast."
 "That is good," the maid replied, and disappeared to return with an
inviting tray, which she placed on the table by Lavender's side; and while
Lavender, reclining on the divan, enjoyed her breakfast thoroughly, Lucille
busied herself about the room and chatted pleasantly of trifles.

Presently Lucille removed the tray, and, sitting on a low chair by

Lavender's side, began to brush out her mistress's hair, while Lavender leant
on one arm with her face turned towards the wall.

"I didn't like to mention it to you while you were so ill," Lucille
remarked, "but have you heard the sad news about Mr. Ashley's uncle? Shot
in his own summer house!"

"Yes," Lavender replied; "I read about it yesterday." She spoke steadily;
she had better get accustomed to hearing the crime talked about, but still
she was glad her face was averted.

"There's some more about it in the papers to-day."

"Is there?" said Lavender sharply. "Have they found out who did it?"

"Oh, no," said Lucille; "there doesn't seem to be any clue at all."

Lavender drew a deep sigh of relief; she could not be sufficiently

grateful for the extraordinary presence of mind which Melville had
displayed throughout that awful journey from Fairbridge. If he had not seen
the handkerchief which she dropped by the ha-ha they might both be under
arrest already. But other thoughts were passing through Lucille's mind.

"There's nothing about the murderer," she said, "but there is an

advertisement saying that if Lady Holt will apply to some solicitors she will
hear of something to her advantage. Did I pull your hair?"

For Lavender started perceptibly.

"Where is the advertisement? I should like to see it."

"I thought it would interest you," Lucille replied, "for the first time Mr.
Ashley called here you told me he might ask for Lady Holt, and that if he
did I was to come and let you know. Is Lady Holt a friend of yours?"

"Let me see the advertisement," said Lavender again, and Lucille went
to fetch the morning paper. While she was gone, Lavender considered as
rapidly as possible what she had better do. For ten years Lucille had been
with her, a companion rather than a servant, the trusted and trustworthy
recipient of all her confidences; and Lavender, on her part, had played the
friend rather than the mistress to this otherwise friendless woman, had made
her life bright and happy, and reaped the reward of being served with
fidelity and devotion. Never once had Lucille presumed upon her relations
with her employer, and in believing that she placed her mistress's interests
above her own Lavender judged rightly. Lucille returned and gave the
newspaper to Lavender, who read the paragraph with trembling eagerness;
she must give some explanation to Lucille, and the true explanation was
also the politic one to give. She turned round and looked the other woman
in the eyes.

"It is for me, Lucille," she said in a low voice. "I was once Sir Geoffrey
Holt's wife."

Lucille gasped.

"That is your husband that's been murdered? Oh, you poor dear! What
an awful thing!" But her sympathy was not commensurate with her
curiosity. "And you divorced him, I suppose, and he repented and left you
some of his money, and now they want to know where you are so that they
can hand it over to you. That's the something to your advantage, I suppose.
Will you go and see about it to-day?"

The rapidity with which Lucille invented an entire story to fit in with
her views of probabilities bewildered Lavender.

"Oh, no," she said; "that isn't it at all. They must never know where I
am. They must think I am dead, as I always thought he was when I—
married again."

A glimmer of comprehension dawned in Lucille's face.

 "You thought him dead when you married Mr. Sinclair, and he wasn't?"

Lavender nodded assent.

"I ran away from him and heard nothing of him, and thought he must be
dead or he would have found me out and compelled me to go back to him
again. And after seven years I thought I was free to marry again, and I
married Mr. Sinclair. It was only the other day I learned that I was not free
and that my marriage with Mr. Sinclair wasn't really any marriage. And
now if they find out that I am Lady Holt, I may be prosecuted for bigamy;
in any case, there will be a frightful scandal, and as I was never legally Mr.
Sinclair's wife I shall lose all the money he left me and be ruined as well."

"Oh!" said Lucille slowly. "Of course they must never know."

"You won't betray me, will you?" said Lavender piteously.

"Betray you, my poor dear?" cried Lucille. "Whatever are you thinking
of to suppose that I would betray anything that could do you harm?" She
stroked Lavender's hand with fond tenderness, and Lavender turned upon
her face and cried; the womanly sympathy was just what she needed at this
moment, and scarcely any sympathy is so generous and full as that
bestowed upon us by faithful and loyal servants. "No," said Lucille, "it's
only because you've been run down and ill that such a thought could get
into your head. You are safe so far as I am concerned. Besides, now both
your husbands are dead, what affair is it of anybody's who or what you are?
They'll never find you out after all these years. They wouldn't advertise if
there were any other way of getting at you, and as for the something to your
advantage, if you don't choose to go after it I don't suppose this Mr. Tracy
will raise any objections; at least, he'll be unlike most of the lawyers I've
ever heard of if he does."

By degrees Lavender was comforted and reassured, and under Lucille's

ministrations recovered much of her former health and cheerfulness.
Attended by Lucille, she spent the next few days driving and idling in the
little garden before her house, and reverted practically to her mode of life
before she first asked Melville to call upon her at The Vale. The horror of
the tragedy was even beginning to fade from her mind; she could never
forget it, but she might hope to hear no more about it. She was almost
beginning to think she never would, when one day, as her carriage was
turning into Hyde Park she caught sight of the newspaper posters fastened
against the railings, blazoning forth the sensational news of the arrest of Mr.
Ashley.

CHAPTER XIX.

IN THE PARK.

Lavender was alone at the time, and the shock caused by the sight of the
poster was so violent that her carriage had nearly completed the circuit of
the Park before she fully recovered consciousness. She very naturally
assumed that the Mr. Ashley referred to on the poster was Melville, and his
arrest would almost inevitably involve her own. But as she was driving
from the Marble Arch down towards Hyde Park Corner the desire to have
some certain knowledge became quite irresistible, and stopping the
coachman under the trees by the kiosk she got out of the carriage and
walked across to the gate to buy some of the evening papers which had
been the first to get the news. She was afraid to look at them until she got
back into her carriage, in case she should find mention of her own name and
betray her identity by some access of emotion; so folding them up she
recrossed the Row and sank back amongst her pillows. She ordered the
coachman to move away from the throng of carriages waiting to greet the
Queen, and he walked his horse up to the bandstand, where no people
gather so early in the day. And there, with tumultuously beating heart and
nervously shaking hands, Lavender opened one paper after another and
devoured all the news about the Fairbridge mystery.

Her first feeling was, perhaps not unnaturally, one of relief when she
discovered that it was Ralph and not Melville who had been arrested. If the
police were capable of trailing off on such a particularly wrong scent, they
were capable of anything except detecting the real culprit. There was, too,
something especially grotesque in their suspecting Ralph, who, according to
Melville, was a paragon of all the virtues, instead of Melville, who,
according to the same authority, was not. But to her first sensation of relief
there succeeded another sequence of thoughts that filled her with a different
emotion. The report of the proceedings before the magistrates was all too
brief for anyone so vitally interested in the matter as Lavender was, but,
womanlike, she read between the lines and jumped to conclusions with
feminine accuracy.

Ralph had evidently gained the boathouse at almost the same moment
that she and Melville left it; he had lingered with luxurious leisureliness
over his toilet, and the police were bent upon proving that he had had time
and opportunity to commit the murder. They would find a motive for the
crime in the fact that under this recent will he inherited practically
everything, and even if they could not bring sufficient evidence to hang
him, they would, by inference and by circumstantial evidence, weave such a
net around his feet that he could scarcely look to go free again. It meant, in
short, that an innocent man would be condemned, and there was only one
thing could save him—for Lavender herself to come forward and tell the
truth, so bringing about Melville's death and her own ruin.

That, in a nutshell, was the actual state of affairs. Ralph's life was in her
hands, but if she saved it she could be under no misapprehension as to what
the cost would be. Whatever she did now, one of those two brothers—her
own husband's nephews—would have to die at the hands of the common
hangman.

Lavender read again the personal paragraphs about the suspected man,
to which the halfpenny papers always give so much prominence. She tried
to picture him as he must be in the flesh, with that crisp, curling hair, that
straightforward expression which seemed to be his chief characteristic, and
that lithe and muscular frame. There was the girl, too, to be considered, this
Miss Austen, to whom Ralph was engaged; her happiness, like her lover's
life, was in Lavender's hands to save or to destroy. Which pair was to be
ruined—Melville and Lavender, or Ralph and this other girl?
 For the man suspected of a foul crime, of which he was entirely
innocent, Lavender felt nothing but pity, but the thought of the hapless girl
who loved him did not touch her so nearly; if anything, it rather hardened
her heart, although there was nothing cruel in her nature. The conflict of
interests was so deadly, its issue fraught with such tremendous
consequences, that she could not be wholly blamed for her indecision as she
sat in her carriage under the trees and tried to weigh the facts in a true
balance. Her immediate surroundings increased the difficulty of realising
the actual value of the facts until the difficulty became an impossibility.

Yet absolute inaction was no less impossible. She had promised

Melville neither to write nor call, but she must ascertain what he was doing
in view of this new complication. She knew he had attended the inquest,
and could imagine something of his relief at the verdict, but she did not
know him well enough to forecast his behaviour in face of this
extraordinary perversity of fate. Hitherto she had regarded him as a well-
bred, entertaining man about town, well endowed with means, cultivated,
and generally charming, one of many sparkling bubbles in the great bumper
of the world's wine. The fragments of conversation she had overheard at the
boathouse proved conclusively that her opinion of him was ill-founded; he
was an unscrupulous adventurer, capable of lying, meanness, blackmail—of
any treachery, if that was the easiest way of getting money to squander on
himself. Beneath his mask of resourceful self-possession, too, there lurked a
reserve of passion that, as she had seen with her own eyes, could on
occasion burst out with volcanic fury and kill whatever obstacle barred the
way to the goal of its desires. The actual murder might have been
unpremeditated, done in a moment of maniacal anger, but now that that
moment was past and his normal ingenuity and resourcefulness were able to
have free play again, how would Melville deal with the problem of saving
his brother without incriminating himself? She must find out.

Lavender had the carriage turned, and took her place in the long queue
of vehicles facing the great gates. She liked to see Society, although she was
not of it, and many of the people sitting on the grass were well known to her
by sight. Since Mr. Sinclair's death, at any rate, she had had a very good
time, and had followed fashion to its usual haunts at the several seasons of
the year, with the result that she picked up a good many bowing
acquaintances, if no intimate friends, among the class of people, part of
whose business it is to be seen in the Park between four and seven o'clock.
And presently she caught sight of Melville himself talking to a Duchess,
whose love of music was only one of many claims to the gratitude of
London. Here was the opportunity of learning something of what she was
so nervously anxious to know without breaking her promise to him. She
caught his eye, and pretended not to observe the obvious look of annoyance
which crossed his face as he raised his hat.

"Who is your friend?" the Duchess asked. She, too, observed the frown
and wondered what the reason of it was, for her brief, but adequate, survey
of Lavender assured her practised eye that Melville's acquaintance was
dressed with perfect taste, and if not presented was presentable.

"A very charming woman," Melville answered, "and a very good one,
too, but I won't ask permission to present her to you, Duchess."

"Just as you please," said Her Grace good-naturedly. "She wants to talk
to you, so you are released," and Melville, of course, had no alternative but
to join Lavender.

She leaned towards him as he approached the railings.

"I have been wanting to see you so much," she said eagerly.

"That is very good of you," he said in conventional tones, for the benefit
of the coachman. "I should have been delighted to call, but I have been out
of town, and otherwise very much engaged."

If the coachman could hear the words he could not see the meaning
glance of warning flashed from Melville's eyes; Lavender understood it
perfectly, and again was conscious of the man's indomitable will. She
accepted his warning, but insisted too.

"I want your advice," she said. "Where can you see me this afternoon?"

"I hardly care to offer advice in the Park," he replied; "there are so many
distractions, are there not?"
 Lavender almost lost her temper. She leaned nearer to him and spoke
softly, so that only he could hear.

"I mean to have a talk with you about—this," and she laid her hand
upon the newspapers by her side. "Will you come for a drive with me
now?"

"Not now," said Melville, "but could you not be put down at Kensington
Gardens? I will join you there in an hour."

Lavender looked at him searchingly.

"You will be there, really—without fail?"

"Yes," he said, and moved away, seemingly nonchalant, but in reality

cursing the mischance of running up against her there. He had a particular
object in being seen in the Park that afternoon; his presence there would be
interpreted as indicative of perfect serenity of mind so far as he himself was
concerned, and of complete confidence in his brother's innocence of the
monstrous charge preferred against him. But Lavender was the last person
whom he desired to see, although in their casual meeting there was
probably no element of danger.

However, the discussion, if likely to be futile, could not be avoided, so

at the expiration of the hour he reached the railings dividing the Gardens
from the Park, and found Lavender awaiting him.

"What are you going to do now?" she enquired anxiously.

"I think you are recklessly imprudent," Melville said, ignoring her
question. "Why must you of all people choose the Park for your drives just
now?"

"Why shouldn't I?" she retorted indignantly.

"As you have been perusing the papers so exhaustively," he replied,

"you have, doubtless, seen an advertisement suggesting that you should
apply to some solicitors?"
 "That Lady Holt should," she corrected him. "My name is Sinclair.
There is no connection between the two people."

"I am very glad to hear it," he said grimly, "but I adhere to my opinion
that you might choose some other locality than Hyde Park if you wish to
take an airing."

"And I adhere to mine that there is no necessity for doing anything of

the sort. Except yourself, not a soul here knows me by any other name than
Lavender Sinclair, and if they took any interest in me at all, which they
don't, they would fail to understand why Mrs. Sinclair should desert Hyde
Park because Lady Holt has inherited money."

She spoke sarcastically and bitterly, and Melville did not pursue the
point; indeed, it was just possible that she was right, and any marked
variation from her usual habits might excite more comment elsewhere and
be more dangerous.

"What are you going to do now?" she repeated.

"Nothing," he answered.

"But you can't allow your brother to be punished for something he never
did?"

"There is no question of anything of the kind occurring," he said shortly.

"Local policemen are bound to do something to justify their existence, and
they have been inspired to arrest Ralph on suspicion. But nothing can be
proved against him, and he will be released at the end of the week."

"And then——?"

"And then, for their own reputation's sake, they will quietly drop the
whole thing, in case they make themselves still more ridiculous."

His coolness amazed her more each time he had occasion to display it;
he had a way of making the most wildly improbable events seem probable,
of ignoring the existence of peril until it was upon him, and then of moving
placidly aside and letting it pass him by as if it were all of no account. And
this marvellous confidence was, to a certain extent, infectious. Alone,
Lavender might fret herself ill and quake before the visions her fancy
painted in the darkness, but in his company the nightmare vanished and she
reproached herself for her hysterical fears. If only Melville's abilities and
personal magnetism had been directed towards good ends he might have
achieved greatness, but his cleverness and charm, utilised as they were,
constituted him a living danger to society.

"Do you really think that will happen?" she said; "really believe it is
even possible?"

"I really do," he answered. "Look here, Lavender. I've thought about it
all—anticipated every move; there is only one thing one cannot foresee, and
that is the crass stupidity of people one doesn't know—in this case some
Fairbridge constable. As it happens, even that is working in my favour.
Ralph was at the boathouse some time before he saw—Sir Geoffrey, and he
has inherited everything. Therefore, according to this fat-headed policeman,
Ralph did the murder. But what's good enough to arrest a man for, is not
enough to convict him, and there not only isn't any evidence against Ralph,
but there can't be. He will be discharged with a halo of injured innocence
round his brow; and, as I said just now, everybody will be only too glad to
drop the whole thing."

For the moment he actually satisfied her and lifted a load of anxiety
from her heart. Then he broached an idea which he had been pondering for
some days.

"Why don't you go out of town for a bit, or, better still, out of England?
I suppose, in any case, you would be going soon."

"You want me out of the way?" she said interrogatively.

"I think it very desirable that you should be, certainly," he answered.
"You're in a horribly nervous condition, which is perfectly natural, and
goodness only knows what might happen if any fresh trouble came upon
you just now in connection with your marriage to Mr. Sinclair. There would
be all sorts of litigation, and I can't imagine that you contemplate giving up
what you've got from him for the sake of having less from somebody else,
leaving alone all considerations of the scandal."

It was neatly put, but she was sceptical about his regard for her interests.
She flushed as he told her of the annuity Sir Geoffrey had left her, and of
the conditions under which it was to be obtained, and he regretted having
laid any emphasis upon the humiliating nature of those restrictions, for she
keenly resented having been so unnecessarily subjected to this implied
affront. Badly as she might have treated her husband, she had at least been
proud enough to refrain from asking him for help, and that pride would
have endured, however poor she might have become subsequent to her
desertion of him. Melville's duplicity angered her, and she refused to
acquiesce in his wish that she should run away, and turned a deaf ear to his
further arguments in favour of that course.

"No," she said doggedly, "I won't go," and for the time he gave up
trying to persuade her.

"Tell me," she said, as at last he got up to go home, "how am I to

communicate with you if I want to see you?"

"I don't suppose it will be necessary," he answered.

"I must know what to do if I consider it necessary," she persisted.

"Well, the only imperative thing is to refrain from writing," he said.

"Whatever else you do, don't write anything definite or indefinite which can
be twisted into having reference to this miserable business. Send a verbal
message by someone whom you can really trust, to be delivered only to
myself in person, saying you want to see me and where, and I will come. If
the messenger doesn't know what you want to see me about, and doesn't
start gossiping to the servants at my chambers, I don't suppose any harm
can be done."

"Very well," Lavender replied, "that will do, and you may be sure I
won't worry you unless I think it is necessary. Only remember, if I do send
for you, you must come."
 "That I promise," said Melville. "Whom will you send?"

"Lucille," she answered.

"Is she reliable?" he asked.

"Absolutely," she replied. "It was she who showed me the advertisement
of Mr. Tracy wishing to know my whereabouts."

"Why on earth did she suppose that would interest you?" he exclaimed.
"Does she know——?"

"She knows I am Lady Holt," said Lavender.

"Good God!" cried Melville, and a look of fear came into his eyes.

CHAPTER XX.

MONEY MAKES A DIFFERENCE.

However preposterous the charge against Ralph might appear to those

who knew the man, the magistrates decided that a primâ facie case had
been made out against him, and at the end of the adjourned hearing fully
committed him for trial on the capital charge at the next assizes. To this
disaster it is possible that his own demeanour contributed, for throughout
the proceedings he exhibited an impatient indignation that went far to
alienate the sympathy of those who, within their own limitations, were
striving to discharge their duty faithfully. Mr. Tracy on several occasions
had difficulty in restraining his client's temper, and, at a final interview with
him after his committal, implored him to control himself more effectually at
the assizes.
 "But they are such hopeless imbeciles," Ralph protested. "Thank
goodness, the decision won't rest with any Justice Shallow next time! If it
did, I should inevitably hang."

Mr. Tracy quieted him somewhat, and Gwendolen, who also was
permitted to see him before he was removed, did much to restore his faith in
human nature, but everybody at the Manor House was oppressed by a sense
of impending calamity. Innocent men have met death upon the gallows
before now, and faith is such a different thing from proof. In the meantime,
however, there was an interval during which it might be possible to get
upon some other trail, and all Ralph's friends swore to leave no stone
unturned to prove his innocence.

As a first step, Gwendolen determined to enlist Melville's active co-

operation, and with her mother called upon him at his chambers, having
previously let him know he might expect them. Melville was sympathy
incarnate, and, although he confessed that he did not see in what way he
could be of use, promised to be unremitting in his enquiries and to spare
neither time nor trouble to bring about the acquittal which he desired as
much as they did. What he had said to Lavender in Kensington Gardens he
repeated now to Gwendolen, and with very similar effect, so that she went
away cheered and hopeful and full of gratitude to him.

The cab containing them had scarcely driven away before another
visitor arrived in the person of Mr. Tracy. The old gentleman was evidently
unaware that the Austens had just called upon Melville on the same errand,
and Melville did not enlighten him; the least suggestion of mystery had an
odd fascination for him, and from the possession of exclusive information,
however trifling in itself, he always derived satisfaction and a sense of
power. In presence of the solicitor his pose was different; he resented the
stigma cast upon the family name, was not free from apprehensions about
the issue of the trial, and agreed with Ralph in denouncing the stupidity of
the police; but he had no practical suggestion to offer, and again did not see
in what way he could be of use. He rather inclined to the idea that excess of
activity might be construed to his brother's disadvantage.

"You never know what these criminal lawyers may not make of trifles
most praiseworthy in themselves," he said. "If I were to be seen all over the
place trying to pump everybody they would as likely as not protest that I
was trying to suborn evidence for our side; whereas, if I keep myself aloof
and lead my usual life it will, at any rate, show that I'm confident of Ralph's
innocence and feel no anxiety."

"But you must feel anxiety," said Mr. Tracy irritably. "Your brother is in
a deuced ticklish position, Mr. Ashley."

"I know," Melville answered, with a far-away look upon his face. "I
wouldn't be in his place for a million of money." That was almost the only
absolutely sincere remark he made upon the subject. "Look here, Mr.
Tracy," he said suddenly, "in confidence, do you really think Ralph might
swing for this?"

"I think it's quite possible," the lawyer said. "It's a capital charge, and if
the jury bring in a verdict of guilty the sentence must be death; there's no
alternative. Whether it would be carried out or commuted to penal servitude
is another matter, as to which I have formed no opinion."

"No jury can convict," said Melville obstinately; "there's no evidence."

Mr. Tracy would not argue the point. That would be done exhaustively
by-and-bye; his present business was to stimulate Melville into activity, and
it was not progressing as he liked.

"What we have to do at the present time," he said, "is to make all

possible enquiries and follow up any possible clue, however shadowy it
may seem at first. I want you to exhaust the neighbourhood of Fairbridge;
you know everybody there. Go round the inns and little shops and the locks,
and encourage the people to talk. You may hear of some stranger having
been seen about there at the time, hanging about the bars or the towing-
path, or something of that sort; if you do, follow it up."

"But all that means time and money," said Melville. "I can't afford
either."

Mr. Tracy was surprised.