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 LEGAL SABOTAGE

The Jewish leftist lawyer Ernst Fraenkel was one of twentieth-century

Germany’s great intellectuals. During the Weimar Republic, he was a
shrewd constitutional theorist for the Social Democrats, and in post–
World War II Germany, he was a respected political scientist who worked
to secure West Germany’s new democracy. This book homes in on the most
dramatic years of Fraenkel’s life, when he worked within Nazi Germany
actively resisting the regime, both publicly and secretly. As a lawyer, he
represented political defendants in court. As a dissident, he worked in the
underground. As an intellectual, he wrote his most famous work, The Dual
State – a classic account of Nazi law and politics. This first detailed account
of Fraenkel’s career in Nazi Germany opens up a new view on anti-Nazi
resistance – its nature, possibilities, and limits. With grit, daring, and
imagination, Fraenkel fought for freedom against an increasingly
repressive regime.

douglas g. morris is both a legal historian and a criminal defense

attorney for indigent clients in New York City. He has published widely
on twentieth-century German legal history and was a recipient of the 1998
Thurgood Marshall Award from the Association of the Bar of the City of
New York for serving “as pro bono counsel to a human being under a
sentence of death.”
 c a m b r i d g e s t u d i e s i n c o n s t i tut i o n a l l a w

The aim of this series is to produce leading monographs in constitutional

law. All areas of constitutional law and public law fall within the ambit of
the series, including human rights and civil liberties law, administrative
law, as well as constitutional theory and the history of constitutional law.
A wide variety of scholarly approaches is encouraged, with the governing
criterion being simply that the work is of interest to an international
audience. Thus, works concerned with only one jurisdiction will be
included in the series as appropriate, while, at the same time, the series
will include works which are explicitly comparative or theoretical – or
both. The series editor likewise welcomes proposals that work at the
intersection of constitutional and international law, or that seek to bridge
the gaps between civil law systems, the US, and the common law jurisdic-
tions of the Commonwealth.
Series Editors
David Dyzenhaus
Professor of Law and Philosophy, University of Toronto, Canada
Thomas Poole
Professor of Law, London School of Economics and Political Science
Editorial Advisory Board
T.R.S. Allan, Cambridge, UK
Damian Chalmers, LSE, UK
Sujit Choudhry, Berkeley, USA
Monica Claes, Maastricht, Netherlands
David Cole, Georgetown, USA
K.D. Ewing, King’s College London, UK
David Feldman, Cambridge, UK
Cora Hoexter, Witwatersrand, South Africa
Christoph Moellers, Humboldt, Germany
Adrienne Stone, Melbourne, Australia
Adam Tomkins, Glasgow, UK
Adrian Vermeule, Harvard, USA

Books in the Series

Legal Sabotage: Ernst Fraenkel in Hitler’s Germany Douglas G. Morris
Proportionality in Action: Comparative and Empirical Perspectives on the
Judicial Practice Edited by Mordechai Kremnitzer, Tayla Steiner and
Andrej Lang
Constitutional Dialogue: Democracy, Rights, Institutions Edited by
Geoffrey Sigalet, Grégoire Webber and Rosalind Dixon
The Veiled Sceptre: Reserve Powers of Heads of State in Westminster
Systems Anne Twomey
Vigilance and Restraint in the Common Law of Judicial Review
Dean Knight
The Alchemists: Questioning Our Faith in Courts as Democracy-Builders
Tom Gerald Daly
Australia’s Constitution after Whitlam Brendan Lim
Building the Constitution: The Practice of Constitutional Interpretation in
Post-Apartheid South Africa James Fowkes
Dimensions of Dignity: The Theory and Practice of Modern Constitutional
Law Jacob Weinrib
Reason of State: Law, Prerogative, Empire Thomas Poole
Bills of Rights in the Common Law Robert Leckey
The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the
Limits of Constitutional Law Translated by Lars Vinx, with an introduc-
tion and notes by Lars Vinx
Parliamentary Bills of Rights: The Experiences of New Zealand and the
United Kingdom Experiences Janet L. Hiebert and James B. Kelly
Lawyering for the Rule of Law: Government Lawyers and the Rise of
Judicial Power in Israel Yoav Dotan
Balancing Constitutional Rights: The Origins and Meanings of Postwar
Legal Discourse Jacco Bomhoff
Judges on Trial: The Independence and Accountability of the English
Judiciary Shimon Shetreet and Sophie Turenne
Proportionality and Constitutional Culture Moshe Cohen-Eliya and
Iddo Porat
The Politics of Principle: The First South African Constitutional Court,
1995–2005 Theunis Roux
The New Commonwealth Model of Constitutionalism: Theory and Practice
Stephen Gardbaum
Searching for the State in British Legal Thought: Competing Conceptions of
the Public Sphere Janet McLean
Judging Social Rights Jeff King
Proportionality: Constitutional Rights and their Limitations Aharon Barak
Parliamentary Sovereignty: Contemporary Debates Jeffrey Goldsworthy
LEGAL SABOTAGE
Ernst Fraenkel in Hitler’s Germany

DOUGLAS G. MORRIS
Federal Defenders of New York
 University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
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79 Anson Road, #06–04/06, Singapore 079906

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/9781108835008
DOI: 10.1017/9781108872324
© Douglas G. Morris 2020
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 2020
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Morris, Douglas G., 1954– author.
Title: Legal sabotage : Ernst Fraenkel in Hitler’s Germany / Douglas Morris, Federal
Defenders of New York
Description: New York : Cambridge University Press, 2020. | Series: Cambridge studies in
constitutional law | Includes bibliographical references and index.
Identifiers: LCCN 2019058652 (print) | LCCN 2019058653 (ebook) | ISBN 9781108835008
(hardback) | ISBN 9781108872324 (ebook)
Subjects: LCSH: Fraenkel, Ernst, 1898–1975. | Lawyers – Germany – Biography. | Germany –
Politics and government – 1933–1945.
Classification: LCC KK185.F725 M67 2020 (print) | LCC KK185.F725 (ebook) | DDC
340.092 [B]–dc23
LC record available at https://lccn.loc.gov/2019058652
LC ebook record available at https://lccn.loc.gov/2019058653
ISBN 978-1-108-83500-8 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
To my grandchildren Sam and Sara
 CONTENTS

List of Plates page xi

Acknowledgments xii
List of Abbreviations xv

Introduction 1
1 Setting the Scene of a Jewish Lawyer, Like Fraenkel,
in Nazi Germany 10
Jewish Lawyers Encountering Nazi Oppression 10
Fraenkel Peering into the Darkness in the Winter
of 1933 38
2 Fraenkel as a Social Democrat Practicing Law
in Nazi Germany 43
Cultivating Contacts in a Frightening Time 43
Subverting Nazi Rule 47
Advising Political Defendants 52
Fighting for Defendants on Trial 65
Tackling the Problem of Communist Defendants 75
Coping with a Declining Legal Practice 88
Understanding the Dual State as a Political
Lawyer 93
3 Fraenkel as an Essayist Supporting the Illegal
Underground 105
Writing Five Essays against Nazism 105
Opposing the Nazi Revolution in Criminal Justice 106

ix
x contents

Promoting Illegal Work 109

Analyzing Nazi and Socialist Notions of Freedom 113
Exploring Politics through the Plight of Workers
and Jews 118
4 Fraenkel as a Scholar Condemning the Nazi Regime’s
Dual State 124
Finding a Legal Justification for a United
Resistance 124
Justifying Resistance on the Grounds of Rational
Natural Law 127
Solving the Problems Posed by Natural Law 131
Relying on Natural Law as a Political Matter 135
Writing a Book as a Form of Political Resistance 143
Escaping Nazi Germany 146
5 Thinking about the Legal Justifications for Sabotaging
a Tyrannical Regime 152
Comparing Fraenkel with Associates Who Tried to Justify
Resistance 152
Stumbling in Efforts to Organize and Inspire Other
Resisters: Hermann Brill 153
Failing to Develop a Theory of Resistance: Martin
Gauger 157
Defying the Nazi Regime from Exile: Franz
Neumann 173
Conclusion: The Ernst Fraenkel Dilemma 199

Notes 211
Bibliography 247
Index 272

The plate section can be found between pp. 172 and 173.
 PLATES

Photo 1 The young Ernst Fraenkel, probably when he was a student in the early
1920s. page
Photo 2 Hanna Fraenkel, an unidentified man, and Ernst Fraenkel in 1937, probably
in Lugano, Switzerland.
Photo 3 Hanna and Ernst Fraenkel in New York in 1942.
Photo 4 Ernst Fraenkel, probably after World War II.

xi
 ACKNOWLEDGMENTS

As I draw my work on this book to a close, I look back fondly on the many
people who have helped. With generosity, they have provided thoughtful
critiques; and with kindness, they have shown genuine friendship. I feel
humbled by their assistance and wish to express my sincerest thanks.
Volker Berghahn stands out as the one person who read the manu-
script in full – twice. Need I say more? Among the best of historians, for
years he has shown me the generosity of a philanthropist, the kindness of
a Mr. Rogers, and the incisive analysis of a high-priced lawyer.
One reward for studying Ernst Fraenkel has been befriending a lead
editor of his collected works, Hubertus Buchstein. For those seeking
animated conversations about Fraenkel, he is your man. After having
read my manuscript in full, Hubertus wrote comments that offered
crucial information, important cautions, and enlightening suggestions.
In both conversation and written feedback, he has the winning gift of
combining passion, imagination, and enthusiastic encouragement.
I have a warm spot for Jon Bush, whom I first met in elementary school
and I remember as a twelve-year-old excitedly recounting highlights
from William Shirer’s tome The Rise and Fall of the Third Reich.
Having built on that foundation, Jon has brought to bear his unending
insights on legal history in reading portions of my manuscript. One
example might give a sense of his helpfulness: when I emailed him
a short question, he responded with a five-page answer.
Jon’s emails met their match only in David Kettler’s. Whenever
I received one, I immediately printed it out for careful study since it
would always prove informative, provocative, and challenging. In perso-
nal conversations, he gave me tutorials on the trade union background of
Fraenkel and his cohort. I repeat here the thanks that I have already
expressed to him personally – by email.
Many others have given their time, thoughts, and feedback, and for me
they make up an honor roll: David Abraham, Steven Aschheim, Brandon
Bloch, Renate Bridenthal, Iris Freyer-Nachum, Amy Hackett, Benjamin
xii
 acknowled gments xiii

Hett, Jack Jacobs, Tillmann Krach, Jan Lambertz, Kenneth Ledford,

Frank Mecklenburg, Jane-Anne Murray, Devin Pendas, Warren
Rosenblum, and Noah Strote. For her amazingly careful and thoughtful
read for errors in the manuscript, I am deeply indebted to Louisa
McMurray.
Early on, I benefited from the astute responses of participants in
seminars devoted to my project at the University of Miami School of
Law; the Summer Research Workshop for Scholars at the Center for
Advanced Holocaust Studies at the United States Holocaust Memorial
Museum, Washington, DC; and the Human Rights Seminar at Columbia
University. Since then, I have learned from probing audience questions at
talks that I have given related to parts of the book, whether at academic
conferences or at events sponsored by bar associations, Jewish organiza-
tions, universities, law schools, or courts. And two anonymous reviewers
selflessly devoted their time to read my work and prepare illuminating
comments. I thank them wholeheartedly.
As a researcher, I am as excited about sitting down in archives as others
might be in touring an ancient city, and I am as thrilled about receiving an
archival document in the mail as others might be on winning free concert
tickets. I mention that point to emphasize the depth of my gratitude to
the staffs of archives that I visited or wrote to: the August Bebel Institut,
Berlin; Archiv der sozialen Demokratie der Friedrich-Ebert-Stiftung,
Bonn; Archiv des Zentrums für Antisemitismusforschung, Berlin;
Bundesarchiv, Berlin; Bundesarchiv Koblenz; Bundesamt für zentrale
Dienste und offener Vermögensfragen, Finanzamt Berlin Moabit-West;
Brandenburgisches Landeshauptarchiv; Freie Universität, Archiv, Berlin;
Geheimes Staatsarchiv Preussischer Kulturbesitz, Berlin; Hauptstaatsarchiv
Düsseldorf; Landesarchiv Berlin; Landesamt für Bürger- und Ordnungsan-
gelegenheiten, Abteilung I, Entschädigungsbehörde, Berlin; the Leo Baeck
Institute Archives, New York; the New York Public Library, Manuscripts
and Archives Division; Universitätsbibliothek Heidelberg; US Citizenship
and Immigration Services, National Records Center, US Department of
Homeland Security, Lee’s Summit, Missouri; and the US Holocaust
Memorial Museum, Washington, DC. I am especially thankful to the New
York Public Library, which gave me the opportunity to research and write
in its Allen Room and Wertheim Study – oases of quiet in a noisy city.
Earlier versions of some portions of the book were published else-
where: (1) “Discrimination, Degradation, Defiance: Jewish Lawyers in
Nazi Germany,” in Alan Steinweis and Robert D. Rachlin, eds., The Law
in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice
xiv acknowledgments

(New York: Berghahn Books, 2013), 105–35; (2) “The Dual State
Reframed: Ernst Fraenkel’s Political Clients and His Theory of the Nazi
Legal System,” Leo Baeck Institute Yearbook 58 (2013), 5–21; (3) “Write
and Resist: Ernst Fraenkel and Franz Neumann on the Role of Natural
Law in Fighting Nazi Tyranny,” New German Critique 126
(November 2015), 197–230, with a translated and abridged version,
“Schreiben und Widerstehen: Ernst Fraenkel und Franz Neuman zur
Rolle des Naturrechts im Kampf gegen die NS-Gewaltherrschaft,” in
Bettina Bannasch, Helga Schreckenberger, and Alan Steinweis, eds.,
Shoah und Exile: Jahrbuch für Exilforschung (2016), with thanks to its
rights holders for their permission to use this material; and (4) “Politics,
Ethics and Natural Law in Early Twentieth Century Germany,
1900–1950,” in John Michalczyk, ed., Nazi Law: From Nuremberg to
Nuremberg (London: Bloomsbury House, 2018), 11–21, with thanks to
Bloomsbury Academic, an imprint of Bloomsbury Publishing, for per-
mission to use this material.
Near the end of writing, I had the good fortune of meeting David
Dyzenhaus. In hearing him speak about his own work, I was impressed
by his combination of scholarly acumen and gentle demeanor. For his
taking interest in my work, I have been moved by his combination of
good will and genuine magnanimity. I owe him a large debt of gratitude
as the person largely responsible for bringing this book to Cambridge
University Press.
I follow a well-trodden but worthy acknowledgments tradition in
closing with thanks to my family – my children Joshua and Ruth, my son-
in-law Ira, and my mother Frances. Their love, affection, and support
sustains me. More than anyone, I thank my wife, Marion Kaplan. As
a historian, she has often talked with me about Fraenkel, always with
insight. As my best friend, she has made sure that we have lived full,
balanced, and socially conscious lives. For her support, companionship,
and love, I am one lucky person.
I have never discussed this book with our two young grandchildren,
Sam and Sara – founts of spontaneity, enthusiasm, and delight. I dedicate
the book to them in the hope that, if and when they need one, they will
have another model for resistance.
 ABBREVIATIONS

DHP Deutsche Hochschule für Politik (German Academy for Politics)

GS Gesammelte Schriften (Collected Works)
GStAn Generalstaatsanwalt (prosecutor at the regional court)
IML Institut für Marxismus und Leninismus (Institute for Marxism and
Leninism)
INS Immigration and Naturalization Service
ISK Der Internationale Sozialistische Kampfbund (International Socialist
Combat League)
ITS International Tracing Service, USHMM
JM Justice Minister or Justice Ministry
KG Kammergericht (Prussian High Court)
KPO Kommunistische Partei Deutschlands – Opposition (Communist Party
Germany – Opposition)
LG Landgericht or Landesgericht (district court)
NL Nachlass (a scholar’s estate for academic preservation of manuscripts,
correspondence, notes, etc.)
ObRA Oberreichsanwalt (chief or senior federal prosecutor)
OLG Oberlandesgericht (higher regional court, court of appeals)
OSS Office of Strategic Services
PA Personalakte (personal file)
RAn Reichsanwalt (federal prosecutor)
RAG Reichsarbeitsgericht (federal Labor Court)
RG Reichsgericht (federal Supreme Court)
RGBl. Reichsgesetzblatt (federal Legal Gazette)
RJM Reichsjustizministerium (federal Ministry of Justice)
RM Reichsmark (German Mark, the currency in Germany from 1924 to 1948)
SAJ Sozialistische Arbeiterjugend (Young Socialist Workers)
SAP Sozialistische Arbeiterpartei (Socialist Workers Party)
SPD Sozialistische Partei Deutschlands (German Social Democratic Party)
UDS Der Urdoppelstaat (by Ernst Fraenkel)
VGH Volksgerichtshof (the People’s Court)

xv
 u

Introduction

In one dramatic scene in Beethoven’s opera Fidelio, the tyrant Don

Pizarro suddenly appears in the dungeon cell of the imprisoned rebel
Florestan. At the sight of Don Pizarro, Florestan spontaneously exclaims,
“A murderer stands before me!” Exalted through Beethoven’s music, this
prisoner shows reckless courage in the face of evil. Placed into a cultural
context, the moment epitomizes a German version of a wider mythic
ideal: the hero flouting the despot. Florestan’s bold act is a model for what
stirs people’s hearts. It may come to mind in studying later episodes in
German history. There is an almost uncanny resemblance, for example,
between Florestan and the defendants before the Nazi People’s Court
after the failed attempt to assassinate Hitler on July 20, 1944. The photos
of those men, bowing their heads in forced deference while maintaining
their dignity in spirit, are inspiring. Students of Nazi Germany almost
invariably seek out scenes of heroes defying the regime.
If this book had a hero, he would be Ernst Fraenkel – a Jewish, Social
Democratic lawyer, born in 1898, who courageously defied Nazi oppres-
sion for five and a half years from early 1933, when the Nazi regime took
power, until September 1938, when he fled. The story is about deeds, some
legal and in open view, others illegal and hidden from sight, all in the face
of constant danger. He publicly represented political defendants in court.
He secretly engaged in subversion by writing underground essays. And he
ultimately authored his classic book, The Dual State, which both developed
one of the first contemporaneous critiques of the Nazi legal system and set
forth a legal justification for opposing the regime. But telling Fraenkel’s
story includes a problem: how to keep heroism out of it. As one journalist
explained soon after she had left Nazi Germany in 1939, “Rash or heroic
activities are no longer attempted in underground work.”1 Heroism is not
a particularly helpful category for historical analysis anyway. It diverts
attention from other issues. It easily succumbs to sentimentality. And it
lends itself to myth-making. However hard to fathom in our present age of
incessant self-promotion, Fraenkel never thought of himself as a hero.
1
2 l e ga l sab ot age

The theme of this book is not heroism but resistance. The most well-
known resistance against the Nazi regime appeared during its second half
in the midst of war. Outside Germany proper, in Nazi occupied Europe,
independence fighters struggled against Nazi domination. Within
Germany, a handful of military officers and members of aristocratic and
bourgeois elites plotted to topple the regime – culminating in the famous
failed attempt to assassinate Hitler on July 20, 1944. But during the
regime’s first half, when those elites were still backing the Nazis – for this
reason or that, with one excuse or another, sometimes with a precious
distancing and often with inner enthusiasm – others resisted. These early
resisters usually emerged from the reserves of Nazism’s first victims:
leftists, workers, and Jews. They operated with little institutional support,
from positions of weakness, subject to humiliations, in isolation, at perso-
nal risk, under stress, and often in desperation. But they acted. These
resisters included Fraenkel, some of his contacts, and many of his clients.
As historians have learned more and more about the many responses
to Nazi oppression, they have explored definitions of resistance. These
explorations have prompted both historical inquiry and moral debate.
They have raised a series of hard questions. To deserve the name of
resistance, must the opponents have targeted the very existence of the
regime; must they at least have tried to undermine its law, ideology, and
politics; or could they have limited their focus to particular policies,
specific practices, or discrete actions? Must the method of the opponents
have been violent, organized, and planned; could the method have been
disruptive, isolated, and spontaneous; or could it simply have consisted of
noncompliance, nonconformity, or even disapproving thoughts? What
was the significance of rescue and hiding, assistance and flight, and
suicide? What was the difference between resistance and treason? Or
was resistance simply whatever the Nazi regime itself saw as treasonous?2
I have looked at the acts of Fraenkel and those around him by thinking of
resistance in light of these types of questions. If pushed for a definition,
my rough and ready one would be that resistance consisted of the
concrete steps that people took – usually incurring risk to their safety,
liberty, and life – in subverting Nazi polices, trying to weaken the
regime’s power, and providing encouragement and support to other like-
minded opponents.3 I have also looked at Fraenkel’s resistance in terms
of everyday life in Nazi Germany – the role that he played as a practicing
lawyer and the beliefs that he tried to realize as a Social Democrat and
a Jew. This perspective considers Fraenkel’s actions as part of, in one
historian’s apt phrase, “the nonheroic tradition of quotidian resistance.”4
 introduction 3

Thus this book poses the question of what type of resistance Fraenkel,
other lawyers, and other anti-Nazis could, and did, undertake during the
first half of the Nazi dictatorship, from 1933 through 1938. How could
those who believed in the rule of law, legal equality, and social justice play
the cards that life had dealt them to oppose tyranny? Fraenkel struggled
with these types of questions, and tackled these types of challenges, as
a lawyer who worked through the courts, as a Social Democrat who
believed in the rule of law and social justice, and as a Jew who faced
discrimination. While Fraenkel carved out his own zigzagging path
(typically acting with judicious restraint and never with operatic flare),
he did not fight in isolation. He worked with colleagues, for clients, and
alongside co-conspirators. With a shifting array of contacts, he tried
resisting a new dictatorship through whatever remaining pockets of
countervailing power he could find. Those pockets of power, although
limited, could make some difference for a few people for a short time. But
ultimately they could not disrupt, match, or survive the aggressively
expanding power of the Nazi regime. Fraenkel’s attempts – on some
occasions with small hope, on others with none – exemplify ways of
subverting a repressive regime through the labyrinth of a modern state’s
institutions, or at least for contending with such a regime. His strategies
show approaches for translating legal principles into action. And his
choices raise questions about when to act through a legal system, whether
to violate laws, and how to justify seditious crimes based on higher legal
principles. Ultimately, Fraenkel’s resistance illustrates one concrete
example of fighting, both legally and illegally, for freedom and against
oppression.
Resisters against a regime like Nazism will act variously as events
unfold – at times tactfully, cautiously, carelessly, recklessly, or in fright,
and at times courageously. The recurrence of acts of courage, and the
almost irresistible urge to find them, just as irresistibly reawakens the
notion of heroism. The notion maintains an almost unshakeable hold on
our imaginations. Maybe it simply cannot be repressed. If it must persist,
we should, at least, be vigilant to avoid its pitfalls – to keep it from blind-
siding us, dominating the narrative, and interfering with other perspec-
tives for understanding. When we do address heroism, we might place it
within the wider context of how individuals managed their fear when
challenging a cruel state. In the case of Fraenkel, the notion points to one
of the knotty questions in his story, which this book tries to address: How
did he defy the regime so persistently and still survive? The answer to that
question also encompasses the answer to a related one: What possibilities
4 l e ga l sab ot age

existed for resistance within Nazi Germany, even by a Jewish Social

Democrat?
In resisting the Nazi regime, Fraenkel did not appear out of nowhere.
He could draw on experience. During the Weimar Republic, he worked
as a lawyer representing both the Metal Workers Union and others in the
Social Democratic labor movement. He also actively participated in
theoretical debates about the place of workers under the Weimar
Republic’s constitution and hoped to bring socialists and liberals closer
together through pragmatic compromises based on notions of equal
rights and social justice. Similarly, once he had fled Nazi Germany,
Fraenkel did not disappear. He remained an impassioned and vibrant
thinker. After World War II, he helped invent the field of political science
in West Germany and advanced an influential theory of pluralistic
democracy. Other scholars have extensively studied Fraenkel in the pre-
Nazi and post-Nazi eras.5 But, with the exception of the second volume of
Fraenkel’s Collected Writings, a chapter in Simone Ladwig-Winters’s
biography of Fraenkel, and the political scientist Jens Meierhenrich’s
recent analysis of Fraenkel’s dual-state theory, the scholarship thins out
for the Nazi era itself. One consequence is a tendency to refer to the Nazi
era in passing and to make assumptions about Fraenkel’s views then
based on what he had conceived beforehand or elaborated on afterward.
But the circumstances of living, working, and writing under the Nazi
regime were bound to – and did – make a difference. While Meierhenrich
explores Fraenkel’s theories within the context of intellectual and jur-
isprudential history, the present book aims to show Fraenkel’s immediate
circumstances and their influence on his actions and thinking. While on
occasion dipping back into the Weimar Republic or stretching forward
into post–World War II Germany, this book focuses on the Nazi years
themselves.
Fraenkel resisted not just any tyranny but one that acted, in the telling
phrase that he coined, as a “dual state.” For immediate orientation, his
theory is this: the legal political system of Nazi Germany consisted of the
prerogative state, on the one hand, and the normative state, on the other.
The prerogative state was the realm of arbitrary power and official vio-
lence, against which citizens enjoyed no legal protection. The Gestapo, SA
(the paramilitary Storm Troopers), and SS (the elite Security Service)
embodied the prerogative state. The normative state was the legal order
itself, embodied in the traditional judiciary. But the normative state did not
represent the rule of law. Rather, it carried out both traditional law and
newly enacted Nazi law and, under both rubrics, did so in an increasingly
 introduction 5

Nazified way. While different from each other, the prerogative and nor-
mative states were hardly polar opposites. They coexisted – at times in
tension, at times in productive competition, at times in cooperative
partnership.
Two critical moments mark the development of the prerogative state
and serve as guideposts for following the course of Fraenkel’s Nazi-era
career. First, the prerogative state made its presence known on
February 28, 1933, with the Reichstag fire emergency decree. That decree
empowered the new regime to suppress dissent lawlessly and even vio-
lently. Second, a turning point occurred somewhat over three years later,
on June 17, 1936, which requires a bit more elaboration. On that date, the
prerogative state tightened its grip with a decree, issued under the
signatures of Hitler and the Reich Minister of the Interior Wilhelm
Frick, that made Heinrich Himmler the chief of all German police.
Since Himmler was already the head of the SS, that step handed all police
power over to the Nazis – away from the traditional bureaucracies of the
provinces and into the hands of a nationally centralized Nazi leadership.
Freed from legal constraints and subject to arbitrary orders, the entire
police force, including the Gestapo, had become an instrument for
carrying out the regime’s political purposes.6 Before this second moment,
Fraenkel had devoted his time to providing political representation and
writing underground essays. As a result of a memorable court appearance
just a month after the June 1936 decree, Fraenkel came up with his dual-
state hypothesis. With the Gestapo in the midst of smashing much of the
already disunified and scattered resistance and prosecutions increasingly
shifting into new Nazi tribunals – the special courts and People’s Court,
where he could not tread – Fraenkel turned his attention to developing
his theory and writing his book. While he continued to be involved in
political representation and to maintain underground contacts, he spent
more time theorizing and he also modified his thinking about the nature
of resistance.
The present book uses two vantage points for viewing Fraenkel’s theory
of the dual state. First, biographically it explains how and why he devel-
oped the theory. Second, historically it uses the theory to understand the
Nazi legal system. The second vantage point does not inevitably follow
from the first. There is no inherent reason why a work on Fraenkel need
interpret the Nazi regime according to his conceptualization any more
than a biography of Hobbes, for example, need interpret his political
surroundings through a Hobbesian lens. Nonetheless, in my opinion the
dual-state theory is itself critical for understanding the Nazi legal and
6 l e ga l sab ot age

political system in which Fraenkel was operating. But the present book
uses the thesis in large part, not in full. It uses the part involving the
interplay between law and politics, not the one interpreting Nazi Germany
as a manifestation of late stage capitalism. The reason is that this book
addresses legal and political issues more than economic ones.
Furthermore, while using the dual-state thesis, this book does not attempt
a larger theoretical defense of its merits taken as a whole. Rather, hopefully
its account of events shows that Fraenkel’s insights really do help illumi-
nate the history, nature, and functioning of Nazi Germany’s legal system.
This book focuses on Fraenkel for five and a half critical years during
the Nazi regime – as a resister, a lawyer, a thinker, a Social Democrat, and
a Jew. But what role did his personal life play? Unfortunately, the sources
are too few for drawing many conclusions, whether about the formation
of his character during his childhood and adolescence until the end of
World War I; about his maturation into a young adult during his student
days and early career in the Weimar Republic; or about his private
interactions with friends in Nazi Germany. As to his childhood, this
much is clear: Fraenkel was raised in Cologne in an assimilated
German Jewish family that valued education. His sister Marta, two
years his senior, later became a medical doctor who pursued social justice
in public health care. While the available data for the early years is bare
bones, what sticks out are events that must have been traumatic. In the
spring and summer of 1909, when the young Ernst was ten, his older
brother and then his father died in quick succession. Six years later, in
1915, when Ernst was sixteen, his mother died. Of the original nuclear
family, only he and Marta remained. They moved to Frankfurt to live
with their uncle Joseph Epstein. Having volunteered for the military in
late 1916, Fraenkel began fighting on the western front a year later and in
April 1918 was severely injured by a hand grenade.7
How did this series of traumas affect Fraenkel after the war as he
moved into early adulthood? They hardly restrained vibrant social
engagement, which revolved around his academic life as a student in
Frankfurt, his political activism there as a young Social Democrat, and
after he moved to Berlin in 1927, his clients as a rising lawyer. In these
realms, he seemed in his element.8 As to romantic involvements, there is
no evidence until he married in December 1932 when he was thirty-
four. He had met the non-Jewish Hanna Pickel at a school for workers in
Bad Dürrenberg, near Leipzig, where he often taught and she worked as
a secretary.9 For the rest of their lives, she shared Fraenkel’s political
commitment and provided him with unwavering emotional support. But
 introduction 7

the very sparsity of information on the couple’s relationship also reflects

the nature of Fraenkel’s personality: he was temperamentally reserved
and kept private matters to himself. Ultimately the best way to under-
stand his personal life during the Nazi era may be through what we can
learn about his career then – as a resister, thinker, and Social Democratic
Jewish lawyer.
While the core of this book describes and analyzes Fraenkel’s career in
Nazi Germany – his representing political defendants, writing for the
underground, and offering a legal justification for resistance – historians
must decide how to bookend their works. Here I have begun with an
account of the plight of Jewish lawyers in Nazi Germany, with little direct
mention of Fraenkel himself. The reason is that the practical problems
facing Jewish lawyers, in both their careers and legal practices, are
necessary for understanding the choices that Fraenkel made, the writings
that he produced, and the nature of his resistance. There are sensible
reasons for an introduction focusing on Jewish lawyers rather than
plausible alternatives, such as Social Democratic lawyers or the Weimar
intellectual background. First, while ideas about social democracy moti-
vated Fraenkel much more than any about Judaism, as a matter of formal
law the Nazi regime discriminated against Jewish lawyers, not Social
Democratic ones (that is, not against lawyers on the grounds that they
once had belonged to the Social Democratic Party, which was outlawed in
June 1933). Furthermore, my account of the plight of Jewish lawyers does
not neglect issues related to Social Democrats but incorporates them.
Second, the introductory description of the plight of Jewish lawyers does
not imply that the Weimar intellectual background was unimportant or
even less important. But Fraenkel’s most immediate predicament
involved the limitations on Jewish lawyers, those circumstances are less
well known than Weimar intellectual history, and intellectual influences
originating in the Weimar Republic are more easily incorporated into the
later narrative.
The other bookend – after the discussion of Fraenkel’s political repre-
sentation, underground writings, and theory of resistance – takes a closer
look at the anti-Nazi subversion attempted by Fraenkel in comparison
with three fellow anti-Nazis whom he knew: Hermann Brill, Martin
Gauger, and Franz Neumann. In varying ways, each of these three men,
like Fraenkel, thought that opposing the regime was not only a moral
imperative but also an intellectual problem demanding a solution – that
is, a coherent justification for resistance. Two of these interlocutors acted
and thought from within Nazi Germany. During his last year in Berlin,
8 l e ga l sab ot age

Fraenkel had contact with Hermann Brill, a former Social Democratic

politician who secretly, obstinately, and vigorously tried to organize
against the regime and wrote pamphlets intended to inspire opposition.
But his organizational efforts floundered and his inspirational writings
were more programmatic than intellectually compelling. For his last two
or so years in Germany, Fraenkel had a more surprising contact –
namely, Martin Gauger, a religious lawyer for part of the Confessing
Church, which tried to maintain independence from a largely Nazified
Protestant Church. Fraenkel and Gauger engaged in intense discussions,
first about ways of providing legal representation for the Confessing
Church, then about the nature of the Nazi state, and finally about
justifications for resistance. But Gauger was too tied to the institution
of the church and too limited by his religious beliefs to be able to justify
resistance once his attempts on behalf of the Confessing Church had
failed. While courageous, both Brill and Gauger lacked Fraenkel’s poli-
tical imagination for justifying resistance. Fraenkel’s achievements
become apparent in juxtaposition not only with the limits of these two
other fellow anti-Nazis but also with the writings of Franz Neumann,
Fraenkel’s former law partner, friend, and intellectual companion, who
fled Germany in May 1933. Independently of Fraenkel, Neumann devel-
oped surprisingly similar ideas for justifying opposition to tyranny, and
the ideas of the two men got closer after Fraenkel, too, fled Nazi Germany
in September 1938. Ultimately, these three comparisons show how the
immediate experience with the Nazi regime, from within Germany and
from exile, generated varied approaches toward resistance and highlight
what Fraenkel accomplished in developing a theory of resistance from
within Nazi Germany itself.
What are the sources for Fraenkel’s Nazi-era career? Finding them
presented its own challenges, although of the kinds that historians wel-
come in their role as investigator and sleuth, puzzle solver and code
breaker. True enough, some information is relatively accessible – most
important, in the first two volumes of Fraenkel’s Collected Writings and in
the Fraenkel collections at the German National Archives in Koblenz and
the Archives of the Free University in Berlin. But, for reasons detailed later,
the weak spot in both collections is precisely the Nazi era. The challenges
thus became how to find relevant information that ultimately was scattered
across archives, court records, restitution files, correspondence, and mem-
oirs. One fruitful approach was not to limit searches simply to information
directly about Fraenkel but to broaden the inquiries. Who were his allies,
his colleagues, his clients (and their families), and his adversaries? Where
 introduction 9

were sources on them? The answers to these questions, and the pursuit of
the resulting leads, generated an energy of its own. Pieces of seemingly
unrelated information often fell into place, and new stories emerged.
One personal caveat may be in order. I have unavoidably brought to
bear my own particular background to studying Fraenkel. As any reader
of the book jacket will notice, I am a practicing criminal defense lawyer
for indigent clients. Is that background a benefit or detriment? All
historians invariably draw upon their own experiences in understanding
their subjects. But, more important, historians should be on the lookout
for their own unwarranted assumptions. I am no different. I hope that my
background has alerted me to issues in Fraenkel’s legal practice. But I also
have tried to avoid importing my assumptions about present-day
American legal practice into my understanding of Nazi Germany’s judi-
cial system. My goal has been simply to tell the story of Fraenkel’s legal
and illegal resistance in a way that will stand or fall as a work of history
based on solid documentation and sound reasoning.
The opening of this preface implied a similarity between Fraenkel and
Beethoven’s Florestan. But the comparison has its limits. Unlike
Florestan, Fraenkel never endured imprisonment or solitary confine-
ment. He did not brashly condemn haughty officials to their faces.
When he escaped Nazi Germany, quietly and by the skin of his teeth,
he did not experience a glorious moment of liberation. But if we reach for
a high enough level of generalization, there may be one more similarity:
both Beethoven’s stirring music in telling Florestan’s tale and Fraenkel’s
unwavering commitment to the rule of law in resisting tyranny put on
display fundamental principles of freedom, justice, and humanity. To
that extent, Beethoven’s Fidelio and Fraenkel’s career in Nazi Germany
are two parts of the same story – and struggle.
 1

Setting the Scene of a Jewish Lawyer, Like

Fraenkel, in Nazi Germany

Jewish Lawyers Encountering Nazi Oppression

Emancipation: Jewish Lawyers before Nazi Rule
On September 11, 1933, in Samaden, Switzerland, outside St. Moritz,
a German Jewish lawyer from Berlin shot himself to death. On
January 30, Hitler had become Germany’s Chancellor; on February 27,
a blazing fire gutted the main chamber of Germany’s Reichstag, its
parliament building; and in late March the lawyer’s non-Jewish partner
had told him that he intended to dissolve their practice together. The
partner denied being an anti-Semite, of course, but times had changed
and he needed to worry about his own family and his own responsibil-
ities. Around the same time, a former client, now a member of the SA, the
organization of Nazi paramilitary street fighters, warned the lawyer that
he was no longer safe in Berlin and must leave. The lawyer did leave,
arriving in Switzerland around mid-April. There he suffered a nervous
breakdown. He refused opportunities for work elsewhere, obsessed about
events in Germany, lost weight, and spontaneously broke out into tears.
Fewer than a dozen people attended the funeral – like the burial of Willy
Loman in Death of a Salesman, a small affair that did not match the dead
man’s dreams.1
As with Willy Loman, the final respects for this one German Jewish
lawyer evoked a grief chilled by loneliness, exhaustion, and disappoint-
ment, and also by a sense of injustice. But there the similarity ends. This
funeral was not for a professional failure; this funeral was for Max
Alsberg – the most celebrated criminal defense lawyer of the time.
Berliners knew of Max Alsberg. He was a public figure. When the late
historian, Werner T. Angress, and his mother were walking in Berlin
one day in the late Weimar Republic, she stopped, pointed, and
remarked, “That is the office of Max Alsberg.”2 The man was worth
noting; the name worth remembering. He represented the rich and the

10
 a j ewish l awyer in n azi g ermany 11

famous. They could not have hired an attorney more knowledgeable in

the law or more skilled in courtroom argument. Jurists turned to his legal
scholarship; lay people crowded his public lectures. He taught, he edited,
he wrote plays. He accrued a fabulous art collection – auctioned off in
January 1934.3
We cannot know for sure what drives a man to suicide. Greek heroes
sacrificed their lives in the hope of future fame; Alsberg ended his upon
the collapse of his renown. He could not go on without the reassurances
from adulating surroundings – from his colleagues, from his adversaries,
from his clients, from the public, from his audience. And he could not go
on without his immersion in German law. Whatever the psychology
behind his suicide, this much we can say with confidence: Alsberg’s
career epitomized the success that Jews had achieved in the German
legal profession, and his death marked the roll-back of Jewish emancipa-
tion and the collapse of liberal law.
Alsberg’s lifetime spanned the rise and fall of an era of liberal law in
Germany. He was born in 1877, in the decade of German unification, at
the time when legal reform took a quantum leap forward. New national
laws – the Penal Code of 1871, the Constitution of the Courts, the
Lawyers’ Statute, and the Codes of Criminal and Civil Procedure, all
taking effect in 1879 – actualized the liberal principles of legal equality.4
These laws rationalized court structures, reformed legal procedures, and
gave rise to a free legal profession. The legal profession was free insofar as
it was freed from state control. And it opened its doors to Jews – that is, to
Jewish men. They flocked into the legal profession and soon made up
a disproportionately large proportion of practicing lawyers. In theory,
Jews could become judges too. But judges were more closely tied to the
state, its traditions of excluding outsiders stubbornly persisted, and Jews
only slowly breached the ranks of the judiciary.
The numbers are dramatic. Those numbers for Prussia, the largest
province in Germany, are illustrative. In 1872, Prussia had 75 Jewish
lawyers, 3 percent of the total; by 1880, the number had doubled to 146,
7.3 percent of the total; and by 1893, the number had risen sixfold to 885,
more than a quarter of the total. From then until 1933 – at a time when
Jews made up less than 1 percent of Germany’s population – the propor-
tion of Jewish lawyers hovered between 25 percent and 30 percent of the
total. In some cities the numbers were even more stunning. In Berlin
almost half the lawyers were Jewish (or by some counts 54 percent), and
in Breslau more than a third. The number of Jewish judges increased too,
but far less steeply. In 1872, Prussia had 9 Jewish judges, a fraction of
12 l e gal sab ota ge

a percent of the total; by 1880, the number had increased to 99, 3.8 percent
of the total; and by 1893, the number had increased to 168, 4.5 percent of
the total. The number and the proportion of Jewish judges continued to
increase until 1933, when 401 constituted 7.0 percent of the total.5
By the time of the Weimar Republic and for its duration, Jewish
lawyers had gained public prominence and professional influence. The
great sociologist Karl Mannheim reportedly said that later students
would look back on the cultural flowering during the Weimar Republic
as comparable to Periclean Athens.6 The historian Benjamin Hett has
written, quite rightly, that the “great lawyers of Weimar . . . represented
an array of collective brilliance that formed a fitting counterpoint to the
artistic, literary, and scientific glories of Weimar Berlin.”7

De-Emancipation: Nazi Lawlessness in 1933, and the Reichstag Fire,

Protective Custody, and Attacks on Courthouses
Upon gaining power, the Nazi regime reversed Jewish emancipation. It
began a five-year process of hounding Jews out of the legal profession.
But to leave matters at that tells only part of the story. The reversal of
Jewish emancipation and the elimination of Jewish lawyers were like
vines entangled with something else, namely, the demise in Germany of
liberal law, the transformation of the German legal system, and the
creation of a new anti-liberal Nazi legal order. The laws from the 1870s
that had ushered Jews into the legal profession did not simply expand
opportunities for a specific group. Those laws embodied new liberal
principles of equality under the law, individual rights, and eventually
democratic participation. In eliminating Jewish lawyers, the Nazi regime
was not just uprooting a specific group; it was reversing liberal principles.
It replaced equality with racist notions of racial superiority, it subordi-
nated the individual to the so-called Aryan community, and it discarded
democratic participation for the dictatorial Führer state.
Within months of gaining power in 1933, the Nazi regime struck its
first blows against Jewish lawyers – both violently and methodically. By
the time Max Alsberg died in September 1933, the regime had already
shown that it meant to rid the German legal profession of Jews and
German law of liberal principles, and that it had an approach for getting
the job done. The approach was all present in the attacks on Jewish
lawyers in the spring of 1933.
The turning point was the Reichstag fire on February 27, 1933, which
served as the pretext the following day for an emergency decree titled,
Another random document with
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The Project Gutenberg eBook of Mr. Jervis, Vol. 2
(of 3)
 This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
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Title: Mr. Jervis, Vol. 2 (of 3)

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Release date: December 4, 2023 [eBook #72313]

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Original publication: London: Chatto & Windus, 1894

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*** START OF THE PROJECT GUTENBERG EBOOK MR. JERVIS,

VOL. 2 (OF 3) ***
MR. JERVIS
 NEW NOVELS AT ALL
LIBRARIES.
AT MARKET VALUE. By Grant Allen. 2 vols.
RACHEL DENE. By Robert Buchanan. 2
vols.
A COUNTRY SWEETHEART. By Dora
Russell. 3 vols.
DR. ENDICOTT’S EXPERIMENT. By Adeline
Sergeant. 2 vols.
IN AN IRON GRIP. By Mrs. L. T. Meade. 2
vols.
LOURDES. By E. Zola. 1 vol.
ROMANCES OF THE OLD SERAGLIO. By H.
N. Crellin. 1 vol.
A SECRET OF THE SEA. By T. W. Speight. 1
vol.
THE SCORPION. A Romance of Spain. By E.
A. Vizetelly. 1 vol.

London: CHATTO & WINDUS, Piccadilly.

 MR. JERVIS
BY
B. M. CROKER
AUTHOR OF
“PRETTY MISS NEVILLE,” “DIANA BARRINGTON,” “A BIRD OF PASSAGE,”
“A FAMILY LIKENESS,” ETC.

IN THREE VOLUMES
VOL. II.

London
CHATTO & WINDUS, PICCADILLY
1894
“Lord of himself, though not of lands;
And having nothing, yet hath all.”

Sir H. Wotton.
 CONTENTS OF VOL. II.
CHAPTER PAGE
XVII. “Take a Friend’s Advice” 1
XVIII. The Table of Precedence 23
XIX. Let us tell the Truth 44
XX. Miss Paske defies her Aunt 55
XXI. The Great Starvation Picnic 68
XXII. Toby Joy’s Short Cut 94
XXIII. Captain Waring’s Alternative 111
XXIV. “Sweet Primrose is coming!” 132
XXV. Sweet Primrose justifies her Reputation 150
XXVI. The Result of playing “Home, Sweet 176
Home”
XXVII. Mrs. Langrishe puts herself out to take 202
Somebody in
XXVIII. The Club is Decorated 216
XXIX. Mark Jervis is Unmasked 237
MR. JERVIS.
 CHAPTER XVII.
“TAKE A FRIEND’S ADVICE.”

Sarabella Brande was a truly proud woman, as she concluded an

inspection of her niece, ere the young lady started to make her first
appearance in public. There was not a fault to be found in that fresh
white dress, pretty hat, neat gloves, and parasol—except that she
would have liked just a bit more colour; but what Honor lacked in this
respect, her aunt made up generously in her own person, in the
shape of a cobalt blue silk, heavily trimmed with gold embroidery,
and a vivid blue and yellow bonnet. Two rickshaws were in
attendance, a grand new one on indiarubber tires, and four gaudy
jampannis, all at the “Miss Sahib’s” service. Mrs. Brande led the way,
bowling down the smooth club road at the rate of seven miles an
hour, lying back at an angle of forty-five degrees, her bonnet-
feathers waving triumphantly over the back of her vehicle. The club
was the centre, the very social heart or pulse of Shirani. It contained
rooms for reading, writing, dancing, for playing cards or billiards, or
for drinking tea.
Outside ran a long verandah, lined with ill-shaped wicker chairs,
overlooking the tennis courts and gardens, and commanding a fine
view of the snows.
The six tennis courts were full, the band of the Scorpions was
playing the last new gavotte, when Mrs. Brande walked up with head
in the air, closely followed by her niece and Captain Waring. She felt
that every eye, and especially Mrs. Langrishe’s eye, was on her, and
was fully equal to the occasion. Mrs. Langrishe, faultlessly attired in
a French costume, and looking the picture of elegant fastidiousness,
murmured to her companion, Sir Gloster Sandilands—
“Not a bad-looking girl, really; not at all unpresentable, but sallow,”
and she smiled with deadly significance, little supposing that her faint
praise attracted the baronet to Honor on the spot. Then she rose,
and rustled down with much frow-frowing of silken petticoats, and
accosted her rival with expressions of hypocritical delight.
“Where have you been?” she inquired. “We thought you were in
quarantine; but when I look at you, I need not ask how you are? Pray
introduce your niece to me. I hope she and Lalla will be immense
allies.” As she spoke, she was closely scrutinizing every item of
Honor’s appearance, and experiencing an unexpected pang.
The girl was a lady, she had a graceful figure, and a bright clever
face; and the old woman had not been suffered to dress her! Even
her captious eye could find no fault in that simple toilet.
“How do you do, Miss Gordon? Had you a good passage out?”
she asked urbanely.
“Yes, thank you.”
“You came out in the Arcadia, and most likely with a number of
people I know, the Greys, the Bruces, the Lockyers.”
“No doubt I did. There were three hundred passengers.”
“And no doubt you had a very good time, and enjoyed yourself
immensely.”
“No, I cannot fancy any one enjoying themselves on board ship,”
rejoined Honor, with a vivid recollection of fretful children to wash
and dress, and keep out of harm’s way.
“Oh!” with a pitying, half-contemptuous smile, “seasick the whole
way?”
Honor shook her head.
“Well, I see you won’t commit yourself,” with a playful air, “but I
shall hear all about you from the Greys,” and she nodded
significantly, as much as to say, “Pray do not imagine that any of
your enormities will be hidden from me!”
“Lalla!” to her niece, who was the centre of a group of men, “come
here, and be introduced to Miss Gordon.”
 Lalla reluctantly strolled forward, with the air of a social martyr.
“I think we have met before,” said Honor, frankly extending her
hand.
Miss Paske stared with a sort of blank expression, and elevating
her eyebrows drawled—
“I think not.” But she also made a quick little sign.
Unfortunately for her, she had to deal with a girl who could not
read such signals, who answered in a clear, far-carrying voice—
“Oh, don’t you remember? I met you the other morning before
breakfast up among the pine woods; you walking with Mr. Joy—
surely you recollect how desperately our dogs fought!”
Lalla felt furious with this blundering idiot, and hated her bitterly
from that day forth.
Mrs. Langrishe was made aware of Lalla’s early promenades for
the first time, and her lips tightened ominously. She did not approve
of these morning tête-à-têtes with an impecunious feather-head, like
Toby Joy.
“Ah, yes, now that you mention it I do recollect,” responded Miss
Paske, with an air which implied that the fact of the meeting required
a most exhaustive mental effort. “But you were in deshabille, you
see” (this was a malicious and mendacious remark), “and you look
so very different when you are dressed up! How do you think you will
like India?”
“It is too soon to know as yet.”
“I see you have the bump of caution,” with a little sneer; “now I
make up my mind to like or dislike a place or a person on the spot. I
suppose you are fond of riding?”
“I have never ridden since I was a child, but I hope to learn.”
“Then that mount on Captain Waring’s pony was your first attempt.
How ridiculous you did look! I’m afraid you are rather too old to learn
riding now. Can you dance?”
 “Yes, I am very fond of dancing.”
“How many ball dresses did you bring out?” demanded Miss
Paske.
“Only three,” replied the other, apologetically.
“Oh, they will be ample. India is not what it was. Girls sit out half
the night. Don’t let your aunt choose your frocks for you, my dear—
indeed, we will all present you with a vote of thanks if you will choose
hers. I’ve such a painful sense of colour, that a crude combination
always hurts me. Just look at that chuprassi, in bright scarlet,
standing against a blazing magenta background—of Bourgainvillia—
the contrast is an outrage. I must really ask some one to get the man
to move on. Here comes Sir Gloster. We will go and appeal to him
together,” and she walked off.
“I suppose that is the latest arrival?” said Sir Gloster, a big heavy-
looking young man, who wore loose-fitting clothes, a shabby soft felt
hat, and rolled as he walked.
“Yes—that is Miss Gordon, Mrs. Brande’s niece. She has half a
dozen, and wrote home for one, and they say she asked for the best
looking; and people here, who have nick-names for every one, call
her ‘the sample.’”
“Excellent!” ejaculated Sir Gloster, “and a first-class sample. She
might tell them to furnish a few more on the same pattern.”
“I expect we shall find one quite enough for the present,” rejoined
Miss Paske rather dryly.
“Have all the people nick-names?”
“Most of them; those who are in any way remarkable,” she
answered, as they paced up and down. “That red-faced man over
there is called ‘Sherry,’ and his wife—I don’t see her—‘Bitters.’
Captain Waring, who is abnormally rich, is called ‘the millionaire;’ his
cousin, the fair young man in flannels, who keeps rather in the
background, is ‘the poor relation;’ Miss Clegg is known as ‘the dâk
bungalow fowl,’ because she is so bony, and the four Miss
Abrahams, who always sit in a row, and are, as you notice, a little
dark, are ‘the snowy range.’”
“Excellent!” ejaculated Sir Gloster.
“That man that you see drinking coffee,” pursued the sprightly
damsel, “with the great flat mahogany face, is ‘the Europe Ham’—is
it not a lovely name? Those two Miss Valpys, the girls with the short
hair and immense expanse of shirt fronts, are called ‘the lads;’ that
red-headed youth is known as ‘the pink un,’ and the two Mrs.
Robinsons are respectively, ‘good Mrs. Robinson’ and ‘pretty Mrs.
Robinson.’”
“Excellent!” repeated the baronet once more. “And no doubt you
and I—at any rate I—have been fitted with a new name, and all that
sort of thing?”
“Oh no,” shaking her head. “Besides,” with a sweetly flattering
smile, “there is nothing to ridicule about you.”
She was certainly not going to tell him that he was called “Double
Gloster,” in reference to his size.
Sir Gloster Sandilands was about thirty years of age, rustic in his
ideas, simple in his tastes, narrow in his views. He was the only son
of his mother, a widow, who kept him in strict order. He was fond of
ladies’ society, and of music; and, being rather dull and heavy,
greatly appreciated a pretty, lively, and amusing companion.
Companions of this description were not unknown to him at home,
but as they were generally as penniless as they were charming, the
dowager Lady Sandilands kept them and their fascinations at an
impracticable distance. She trusted to his sister, Mrs. Kane, to look
strictly after her treasure whilst under her roof; but Mrs. Kane was a
great deal too much occupied with her own affairs to have any time
to bestow on her big brother, who surely was old enough to take care
of himself! He was enchanted with India; and the change from a
small county club and confined local surroundings, the worries of a
landlord and magistrate, to this exquisite climate and scenery, and
free, novel, roving life was delightful. He had spent the cold weather
in the plains, and had come up to Shirani to visit his sister, as well as
to taste the pleasures of an Indian hill station.
Meanwhile Mrs. Brande had introduced her niece to a number of
people; and, seeing her carried off by young Jervis, to look on at the
tennis, had sunk into a low chair and abandoned herself to a
discussion with another matron.
From this she was ruthlessly disturbed by Mrs. Langrishe.
“Excuse me, dear, but you are sitting on the World.”
“Oh no, indeed, I’m sure I am not,” protested the lady promptly,
being reluctant to heave herself out of her comfortable seat.
“Well, please to look,” rather sharply.
“There!” impatiently, “you see it is not here. I don’t know why you
should think that I was sitting on it.”
“I suppose,” with a disagreeable smile, “I naturally suspected you,
because you sit on every one!” And then she moved off, leaving her
opponent gasping.
“I never knew such an odious woman,” she cried, almost in tears.
“She hustles me about and snaps at me, and yet she will have the
face to write down and borrow all my plated side-dishes and ice
machine the first time she has a dinner, but that is not often, thank
goodness.”
In the meanwhile Honor had been leaning over a rustic railing
watching a tennis match in which her uncle was playing. He was an
enthusiast, played well, and looked amazingly young and active.
“So you have been making friends, I see,” observed Jervis.
“I don’t know about friends,” she repeated doubtfully, thinking of
Lalla. “But I’ve been introduced to several people.”
“That verandah is an awful place. Waring has extraordinary nerve
to sit there among all those strangers. I am much too shy to venture
within a mile of it.”
 “I believe he is quite at home, and has met no end of
acquaintances. Have you paid any visits yet?”
“No; only one or two that he dragged me out to. I’m not a society
man.”
“And how will you put in your time?”
“I’m fond of rackets and tennis. Your uncle has given me a general
invitation to his courts. Do you think we could get up a game to-
morrow—your uncle and I, and you and Miss Paske—or Mrs.
Sladen?”
“Yes; if we could get Mrs. Sladen.”
“Not Miss Paske? Don’t you like her?” with a twinkle in his eye.
“It is too soon to say whether I like her or not; but she did not think
it too soon to ridicule my aunt to me.”
“Well, Miss Gordon, I’ll tell you something. I don’t care about Miss
Paske.”
“Why?” she asked quickly.
“Because she snubs me so ferociously. It was the same in
Calcutta. By the way, how delighted she was just now, when you,
with an air most childlike and bland, informed her aunt and most of
Shirani of her pleasant little expeditions with young Joy.”
“Ought I not to have said anything?” inquired Honor, turning a pair
of tragic eyes upon him. “Oh, that is so like me, always blundering
into mistakes. But I never dreamt that I was—was——”
“Letting cats out of bags, eh?” he supplemented quietly.
“No, indeed; and it seemed so odd that she did not remember
meeting me only three days ago.”
“You were thoroughly determined that she should not forget it, and
we will see if she ever forgives you. Here comes old Sladen,” as a
heavy figure loomed in view, crunching down the gravel, and leaning
on the railings in a manner that tested them severely, he looked
down upon the gay groups, and six tennis courts, in full swing.
Colonel Sladen had an idea that blunt rudeness, administered in a
fatherly manner, was pleasing to young women of Miss Gordon’s
age, and he said—
“So I hear you came up with the great catch of the season. Ha, ha,
ha! And got the start of all the girls in the place, eh?”
“Great catch?” she repeated, with her delicate nose high in the air.
“Well, don’t look as if you were going to shoot me! I mean the
millionaire—that fellow Waring. He seems to be rolling in coin now,
but I used to know him long ago when he had not a stiver. He used
to gamble——”
“This is his cousin, Mr. Jervis,” broke in Honor, precipitately.
“Oh, indeed,” casting an indifferent glance at Jervis. “Well, it’s not
a bad thing to be cousin to a millionaire.”
“How do you know that he is a millionaire?” inquired the young
man coolly.
“Oh, I put it to him, and he did not deny the soft impeachment. He
has just paid a top price for a couple of weight-carrying polo ponies
—I expect old Byng stuck it on.”
“The fact of buying polo ponies goes for nothing. If that were a
test, you might call nearly every subaltern in India a millionaire,”
rejoined Jervis with a smile.
Colonel Sladen merely stared at the speaker with an air of solemn
contempt, threw the stump of his cheroot into a bush of heliotrope,
and, turning once more to Honor, said—
“You see all our smartest young men down there, Miss Gordon—at
your feet in one sense, and they will be there in another, before long.
I can tell you all about them—it’s a good thing for a strange young
lady to know how the land lies, and get the straight tip, and know
what are trumps.”
“What do you mean?” asked Honor, frigidly.
“Oh, come now,” with an odious chuckle, “you know what I mean. I
want to point you out some of the people, and, as I am the oldest
resident, you could not be in better hands. There’s Captain Billings of
the Bays, the fellow with the yellow cap, playing with Miss Clover, the
prettiest girl here——”
He paused, to see if the shot told, or if the statement would be
challenged; but no.
“That is Toby Joy, who acts and dances and ought to be in a
music-hall, instead of in the service. There is Jenkins of the
Crashers, the thin man with a red belt; very rich. His father made the
money in pigs or pills—not what you’d call aristocratic, but he is well
gilded. Then there is Alston of the Gray Rifles—good-looking chap,
eldest son; and Howard of the Queen’s Palfreys—old family, heaps
of tin; but he drinks. Now, which of these young men are you going
to set your cap at?”
“None of them,” she answered with pale dignity.
“Oh, come! I’ll lay you five to one you are married by this time next
year.”
“No—not by this time five years.”
“Nonsense! Then what did you come out for, my dear young lady?
You won’t throw dust in the eyes of an old ‘Qui hye’ like me, who has
seen hundreds of new spins in his day? I suppose you think you
have come out to be a comfort to your aunt and uncle? Not a bit of it!
You have come out to be a comfort to some young man. Take a
friend’s advice,” lowering his voice to a more confidential key, “and
keep your eye steadily on the millionaire.”
“Colonel Sladen,” her lips trembling with passion, her eyes blazing
with wrath, “I suppose you are joking, and think all this very funny. It
does not amuse me in the least; on the contrary, I—I think it is a
pitiable thing to find a man of your age so wanting in good taste, and
talking such vulgar nonsense!”
“Do you really?” in a bantering tone, and not a wit abashed—in
fact, rather pleased than otherwise. “No sense of respect for your
elders! Ho, ho, ho! No sense of humour, eh? Why, I believe you are
a regular young fire-ship! We shall be having the whole place in a
blaze—a fire-Brande, that’s a joke, eh?—not bad. I see Tombs
beckoning; he has got up a rubber at last, thank goodness! Sorry to
tear myself away. Think over my advice. Au revoir,” and he departed,
chuckling.
“Did you ever know such a detestable man?” she exclaimed,
turning to Jervis with tears of anger glittering in her eyes.
“Well, once or twice it did occur to me to heave him over the
palings—if I was able.”
Honor burst into an involuntary laugh, as she thought of their
comparative weight.
“He did it on purpose to draw you, and he has riled you properly.”
“To think of his being the husband of such a woman as Mrs.
Sladen! Oh, I detest him! Imagine his having the insolence to make
out that every girl who comes to India is nothing but a scheming,
mercenary, fortune-hunter! I am glad he pointed out all the rich men!”
“May I ask why?” inquired her somewhat startled companion.
“Because, of course, I shall take the greatest possible care never
to know one of them.”
“So poverty, for once, will have its innings? You will not taboo the
younger sons?”
“No; only good matches and great catches,” with vicious
emphasis. “Hateful expressions! Mr. Jervis, I give you fair warning
that, if you were rich, I would never speak to you again. You are
laughing!”
He certainly was laughing. As he leant his head down on his arms,
his shoulders shook unmistakably.
“Perhaps,” in an icy tone, “when your amusement has subsided,
you will be good enough to take me back to my aunt!”
“Oh, Miss Gordon!” suddenly straightening himself, and
confronting her with a pair of suspiciously moist eyes, “I must have
seemed extremely rude, and I humbly beg your pardon. I was
laughing at—at my own thoughts, and your wrathful indignation was
such that—that——”