American Comparative Law: A History

David S. Clark
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American Comparative Law
 American
Comparative Law
A History

DAV I D S . C L A R K
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Library of Congress Cataloging-​in-​Publication Data

Names: Clark, David Scott, 1944–​author.
Title: American comparative law : a history /​David S. Clark.
Description: New York, NY : Oxford University Press, [2022] |
Includes index.
Identifiers: LCCN 2022005984 (print) | LCCN 2022005985 (ebook) |
ISBN 9780195369922 (hardback) | ISBN 9780197653500 (epub) |
ISBN 9780199708550 (updf) | ISBN 9780197653517 (online)
Subjects: LCSH: Law—​United States—​Foreign influences. | Comparative
law—​Study and teaching—​United States.
Classification: LCC KF358 .C43 2021 (print) | LCC KF358 (ebook) |
DDC 349.73—​dc23/​eng/​20220606
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 To Marilee and Lee, Susanna, Eliina, Liisa, and David;
For the future—​to Sienna, Ileana, Levi, Anika, Vida, Cai, and Piers.
 Contents

Preface  xiii
Abbreviations  xvii

1. Legal History and Comparative Law  1

A. Introduction  1
1. Historical Comparative Law and Comparative Legal History  1
2. Methodological Issues  3
3. Scope of the Book  7
B. Historiography: 1771 to 1900  12
1. Establishing an American System of Legal Rules  12
2. The Codification Debate and Historical Jurisprudence  16
C. Historiography: 1900 to 1950  22
1. James Carter  23
2. Roscoe Pound  24
3. Max Radin  27
4. The Dominance of Intellectual Legal History  28
D. Historiography: 1950 to 2000  29
1. Perry Miller, Intellectual Legal History, and Its Decline  29
2. Willard Hurst and the Emergence of Social Legal History  31
3. Lawrence Friedman and a Comprehensive American Social
History of Law  33
4. The Rise of American Legal History as a Distinct Discipline  36
E. Historiography: The Twenty-​First Century  40
1. Eclecticism, Culture, and Thick Description: The Return of
Intellectual Legal History  40
2. Legal History Meets Comparative Law  41
2. British Colonization in North America  45
A. Prelude: Comparative Law in England  45
1. Legal Education and Literature  45
2. Roman and Canon Law Influence in England  47
B. Roman and Civil Law in Colonial British America  49
1. Natural Law, the Law of Nations, and Moral Philosophy  49
2. Self-​Study and Legal Apprenticeship  51
C. Social Factors Affecting Law  53
D. Lawyers and Courts  57
E. Religious and Cultural Variation  60
1. Religious Establishment and Attempts at Tolerance  60
viii Contents

2. Regional and Intraregional Religious Differences  63

3. The Anglicization Thesis  64
4. Eighteenth-​Century Immigrants: The Germans and Scots  66
5. Regionalism and Legal Diversity  71
F. John Adams: An American Comparatist  72
1. Study of the Civil Law  72
2. Law and Politics in Writing and Practice  74
3. The Boston Declaration of 1772  78
4. The Novanglus Letters of 1775  79
5. The Advantage of a Comparative Perspective  81
3. Legal Foundation for the New Republic: 1776 to 1791  85
A. Inventing a New Nation: A Golden Age of Comparative Law  85
B. Learning Foreign Law and Political Theory: George Wythe  88
C. Thomas Jefferson, Natural Law, and Independence  94
D. A Republican Form of Government  101
1. The Roman Republic and Early Principate  101
2. Republican Images  103
3. The Debate about Republics and Democracies  104
4. Baron de Montesquieu  105
5. Diverse Influences  107
E. The Sacred Fire of Liberty  109
F. John Adams  111
G. James Wilson  115
H. Publius: The Federalist  121
1. James Madison  122
2. Alexander Hamilton  129
3. John Jay  131
I. The Bill of Rights  133
J. Classical Legal Models  143
4. The Formative Era: 1791–​1865  145
A. The Shift from Public to Private Law  145
B. Territorial Expansion: Jefferson and the Louisiana Purchase  147
C. Resistance to English Law and the Beginning of American Legal
Science  156
D. Legal Education and Law Books  161
1. Training American Lawyers  161
2. William Blackstone and the American Institutionalist Literature:
St. George Tucker and James Kent  166
3. American Legal Treatises: Joseph Story  171
4. David Hoffman’s Plan for Legal Education  174
E. Other Legal Literature Depicting Roman and Civil Law  176
1. Periodicals with Legal Content  176
2. Other American Translations  183
3. Law Libraries  186
 Contents ix

F. Other Legal Comparatists  187

1. Boston: Luther Cushing  187
2. New Orleans: Samuel Livermore and Gustavus Schmidt  189
3. Charleston and Columbia: Francis Lieber, Hugh Legaré,
and James Walker  190
G. Penal Reform: Law and Punishment  197
H. Codification: Edward Livingston to David Dudley Field  204
I. Slavery  214
5. Historical Jurisprudence and Learned Law: 1865–​1900  223
A. Science and Romanticism: German Historical Jurisprudence  223
B. German Legal Science  227
C. Making Legal Education Scientific: Harvard Law School  228
1. Americans Pursue Post-​Secondary Education in Germany  229
2. Harvard Law School and the Development of Graduate
Education: Charles Eliot and Christopher Langdell  231
3. The American Bar Association  234
4. Other Law Schools Adopt the Harvard Model  238
5. Refining Legal Science: Emulating Germany’s Law Curriculum  240
6. Law Libraries  244
D. Historical Jurisprudence against Codification: James Carter and
David Dudley Field  245
E. Other Uses of Roman and Civil Law  251
1. Teaching Roman Law: A Substitute for Academic
Comparative Law  251
2. Law Journal Literature on Comparative Law  254
3. William Hammond  256
4. William Wirt Howe  258
5. Sociological Jurisprudence in Germany  259
6. Oliver Wendell Holmes, Jr.  260
7. Christopher G. Tiedeman  263
F. Comparative Law Emerges as a Discipline  264
1. Germany and France  264
2. Social Science Associations and Comparative Law  265
3. The 1900 International Congress of Comparative Law  269
6. The Modern Development: 1900–​1945  273
A. Transition into a New Century  273
1. Woodrow Wilson  274
2. Early Attempts to Transplant American Law Abroad  277
3. A Timeline through Two World Wars  284
B. The 1904 Universal Congress of Lawyers and Jurists  287
C. The Comparative Law Bureau  290
D. The Persistence of Roman Law Interest  294
x Contents

E. American Comparatists Look Abroad and Institutionalize

at Home  297
1. The International Academy of Comparative Law  298
2. The American Foreign Law Association  302
3. Social Science and the Johns Hopkins Institute of Law  303
4. The American Law Institute and Unification of Law  306
5. Tulane University College of Law  310
6. The Law Library of Congress and Other Law Libraries  312
F. Roscoe Pound and John Wigmore  320
1. Roscoe Pound  321
2. John Wigmore  323
G. Two Sides of German-​American Relations: The Nazis,
Anti-​Semitism, and Natural Law  326
1. The Nazis and Anti-​Semitism at American Universities  326
2. Émigré Legal Scholars and U.S. Law Schools  331
3. Natural Law  333
H. The 1930s and 1940s: Achievement during a Difficult Period  339
1. The ABA Section of International and Comparative Law  339
2. The 1932 and 1937 International Congress of Comparative Law  340
3. Domestic American Comparative Law Activities  343
7. Postwar Legal Transplants and Growth of the Academic
Discipline: 1945–​1990  349
A. Government Supervision of American Legal Exports  349
1. The Early Postwar Period  349
2. New Constitutions in Germany, Japan, and Korea  354
3. Other U.S. Government-​Sponsored Legal Reforms in Germany,
Japan, and Korea  364
4. Federalism and Antitrust Reform for Western Europe  373
B. Re-​establishing Comparative Law as an Academic Discipline  379
1. The ABA Section of International and Comparative Law  380
2. UNESCO, the AFLA, and the AALS  382
C. The American Association for the Comparative Study of Law  384
1. Structure and Membership of the Organization  384
2. The American Journal of Comparative Law  392
3. Participation in International Congresses  396
D. Developments in American Law Schools  402
1. Comparative Law Courses and Institutes  402
2. General Comparative Law Coursebooks  404
3. Specialized Comparative Law Coursebooks  408
4. Comparative Law Journals and Projects  415
5. Degree Programs for Foreign Students  417
 Contents xi

E. The Role of American Governmental and Nongovernmental

Organizations in Legal Transplants  418
1. Origins and Progression up to 1960  418
2. The 1960s: Decade of Development  421
3. Assessment and the Emergence of Human Rights Law  425
F. Themes in Comparative Law Research  428
1. Comparative Law Libraries and Projects to Facilitate Research  428
2. Unification of Law  432
3. Private International Law  437
4. Comparative Legal Sociology and Law and Development  441
5. Other Landmark Comparative Law Books  447
8. Between Globalization and Nationalism: A History of the Future
after 1990  451
A. The 1990s as a Decade of Opportunities  452
1. The Triumph of Globalization?  452
2. Initial Comparative Law Reaction to Accelerated Globalization  456
3. The Tenacity of Traditions, Cultures, and Legal Pluralism  461
B. The American Society of Comparative Law  467
C. Globalization of American Legal Institutions  479
1. Global Law Schools and Law Firms  479
2. Academic Law and Development Programs  484
3. Constitutional and Judicial Globalization  489
D. Rule of Law Programs: Governments, the ABA, and NGOs  494
1. Conceptualization and Timeline from 1990 to 2020  494
2. Specific Programs and Activities  498
3. The Emergence of Legal Indicators  504
E. Challenges in the Twenty-​First Century  508
1. Reassessment of Globalization and the Return to Nationalism  508
2. Resistance from Islam  511
3. The Importance of China  515
F. An Interdisciplinary Empirical Comparative Law  518

Index  527
 Preface

We shall not cease from exploration

And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
T.S. Eliot1

Comparative law is the science or practice of identifying, explaining, or using

the similarities and differences between two or more legal systems or their con-
stituent parts. The objectives or aims of comparative law include those that
are practical or professional, scientific, and cultural. Its scientific aspirations
can be looser, in the sense of accumulating or applying systematic knowledge
(Wissenschaft); tighter, such as empirically testing general explanatory propos-
itions; or some intermediate endeavor. These activities involve many distinct
methods, such as functionalism or transplants (exporting or importing). Legal
systems can be international, national, or subnational. They contain a complex
mixture of distinctive legal norms, institutions, processes, actors, and cultures.
Comparatists confront many challenges in carrying out their objectives. First,
they must select a legal element for study, such as a contract rule, the standard
of proof in criminal procedure, the expected or actual role for prosecutors, civil
discovery, legal education, the relationship among government structures, or
people’s attitudes toward mediation as a form of dispute resolution. Second, they
should identify the aim of their inquiry—​whether it is professional, scientific, or
cultural. Third, they must choose at least two legal systems, which typically are
their home system and that of a foreign nation. This one often does implicitly.
The investigator may state that she is only interested in a foreign example, such
as the presence of rule of law in Indonesia, but she must begin somewhere in
her conceptual organization. That somewhere is usually the relevant element in
the researcher’s own legal system. The two systems need not be contemporary;
one may be historical or idealized. It is here that one can see overlap with legal
history or legal philosophy (jurisprudence). Fourth, comparatists must select
a method or methods to use in making their comparison. These methods may

1 T.S. Eliot, Little Gidding, in Four Quartets 31, 39, verse 5 (1943).
xiv Preface

have developed within other disciplines, such as economics, sociology, or an-

thropology, which can make the activity interdisciplinary.
There is further discretion in determining the nature and extent of the simi-
larities or differences the investigator will emphasize. Some comparatists prefer
identifying similarities in what they find while others accentuate differences.
This will often vary depending on the use or objective that the comparatist has.
Some comparative law utilizes a level of generality above the nation-​state. The
classification of the world’s national and subnational legal systems into families
or traditions is an effort to simplify the universe by focusing on the similarities
of selected components within a legal tradition and then often pointing out the
differences between that tradition and others. For instance, legal scholars com-
monly speak of the civil law tradition or the Islamic law tradition. Further anal-
ysis may lead to the recognition of mixed jurisdictions that reflect legal pluralism
within a single legal system, such as Louisiana or Scotland.
From this portrayal, one can see that comparative law is not a discipline with
fixed boundaries, either by subject or by method, and certainly, it does not need
to be doctrinal. Over the course of American history, many legal scholars and
lawyers who worked on issues related to law that involved a foreign element did
not think of themselves as comparatists. This was true during the colonial period
and at the beginning of the American republic. The term “comparative law” first
appeared in an American law journal in 1839.2 Prior to that time, common ref-
erence in the United States to foreign law other than that of Great Britain was to
the civil law or Roman law, or more generally to natural law. Comparative law did
not emerge as a discipline with journals and organizations in Europe until the
middle to late nineteenth century. In the United States, scholars and lawyers only
organized themselves to promote comparative law aims in the early twentieth
century.
The accepted methods of comparative law have multiplied from the eight-
eenth century until the present. Thus, for much of the discussion of comparative
law through the nineteenth century, I will use contemporary ideas sent back in
time to analyze events that today we would call comparative law activities. The
challenge is to understand how law-​trained persons in colonial British America
and the early United States thought about using foreign law examples to de-
velop solutions to problems that ranged from maintaining social order, resolving
disputes, constitution making and institution building, rule orderliness or

2 L.S. C[ushing], Civil and Criminal Laws of Modern States, 21 Am. Jurist & L. Mag. 56 (1839).

[T]‌he advantages of such a collection of modern law, in the study of what may be called the science
of comparative law, are chiefly . . . of a more practical nature, resulting from the absolute necessity
of knowing the laws of foreign states, as so many positive and living institutions, operating directly
upon the rights and obligations of the citizen in the daily business of life. Id.
 Preface xv

simplicity, to doctrinal detail.3 The experience from the centuries, from diverse
lands, was available to them and they drew from those examples to understand,
create, and reform law and to strive toward the promised more perfect union.
Finally, there is the matter of the law of Great Britain, today the United
Kingdom. Modern American comparative law as it has evolved does not pay
much attention to common law jurisdictions. There is no solid theoretical reason
for this. One explanation might be the American tradition among lawyers to
refer to the Anglo-​American tradition as if there were dominant, seemingly in-
evitable, similarities between the United States and England.4 Of course, there
are important similarities, shared also by other common law jurisdictions. Above
all, the legal language is English, whether the common law country is in Asia or
Africa, which facilitates the study and use of foreign examples within that legal
tradition. Many traditional private law rules in contracts, torts, and property are
related. There are also important structural and procedural similarities such as
the role for judges in court procedures, the doctrine of precedent, equitable rem-
edies, and resistance to rule codification.
This emphasis on continuity with England has been the traditional approach
to legal history in the United States, although the past half century has seen the
rise of a vibrant American legal history that emphasizes the uniqueness of the
legal system of the United States. Even though the two fields of legal history and
comparative law have substantial overlap, this book’s focus will exclude most
efforts to emphasize the common Anglo-​American legal heritage. Those efforts
toward commonality have yielded many useful insights into American law. In
fact, most American lawyers today readily accept those insights as standard
wisdom.
However, the United Kingdom and the United States have distinct histories,
cultures, and political and social structures that have resulted in singular legal
systems that deserve more attention from comparatists. This focus on difference
seems even more obvious in comparisons between the United States and other
common law countries such as Australia, India, or Nigeria. Consequently, I dis-
agree with the implication that because English has been the dominant language

3 I am aware of the risks associated with “Whig history.” Although I will use the anachronism of

comparative law as shorthand for law-​trained persons who used Roman and civil law examples to
sharpen their thinking about a legal problem in eighteenth-​and nineteenth-​century America (be-
fore comparative law developed an organizational base), I attempt to refrain from characterizing the
march of history as progress or to make moral assessments about people or circumstances of the past
beyond what they themselves made. See Michael E. Parrish, Friedman’s Law, 112 Yale L.J. 925, 954–​
59 (2003) (book review). See generally Herbert Butterfield, The Whig Interpretation of History
(1931, reprinted 1978).
4 For recent examples, see, e.g., Daniel R. Coquillette, The Anglo-​ American Legal
Heritage: Introductory Materials (2d ed. 2004); John H. Langbein, Renée Lettow Lerner,
& Bruce P. Smith, History of the Common Law: The Development of Anglo-​American
Legal Institutions (2009).
xvi Preface

in the United States, English legal institutions and rules flowed easily, almost in-
evitably, into the American legal system.5 Certainly, it is wrong to imagine that
somehow the colonists, especially the large number of Germans, Scots, and later
other European settlers in the first decades of the republic “carried” English law
with them.6 There were simply too many differences. In truth, it may be that
the concept of a transnational common law legal tradition impedes our under-
standing of the reality of the American legal system.
I divide this book by era to treat the history of comparative law activities in
British North America and then in the United States. Recent research suggests
that the civil and Roman law have had a greater impact on American law, even
during the colonial period, than commonly acknowledged. This book’s chal-
lenge is to look beyond the common history with Great Britain and to discover
the many other sources of ideas about law that have influenced the legal system
of the United States. It is no longer adequate to say, “Not known, because not
looked for.”7 Furthermore, the dominant approach to American legal history
today emphasizes social history rather than the traditional intellectual history
and its attention to change and adaptation of legal rules and doctrine. However,
comparatists continue to use both approaches, and one’s preference will affect
her choice of method.
I am grateful to Mathias Reimann for many useful suggestions associated
with Chapter 2, an earlier version of which appeared in the American Journal of
Comparative Law.8 I also am indebted to Justin Simard, who read and critiqued
the first chapter, which improved the clarity and accuracy of the text. I thank
Galin Brown, access services manager at Willamette University College of Law
Library, for helpful interlibrary loan assistance. Finally, for their continuing
support and encouragement, I recognize Lawrence Friedman and the late John
Henry Merryman, two teachers who made a difference.

5 Lawrence M. Friedman, A History of American Law xii–​xiii, 66 (3d ed. 2005).

6 Kermit L. Hall & Peter Karsten, The Magic Mirror: Law in American History 10, 23,
36 (2d ed. 2009).
7 Eliot, supra note 1, at 39, verse 5.
8 David S. Clark, Comparative Law in Colonial British America, 59 Am. J. Comp. L. 637–​74 (2011).
 Abbreviations

AACSL American Association for the Comparative Study of Law

AALL American Association of Law Libraries
AALS Association of American Law Schools
AASS American Anti-​Slavery Society
ABA American Bar Association
ACC Allied Control Council (Germany)
ACLS American Council of Learned Societies
ACLU American Civil Liberties Union
AFLA American Foreign Law Association
ALAA African Law Association in America
ALI American Law Institute
AMG American Military Governor or Government (Germany)
AMGK Army Military Government in Korea
ASCL American Society of Comparative Law
ASIL American Society of International Law
ASSA American Social Science Association
BCE Before the Common Era
BIE Bureau International des Expositions
BYU Brigham Young University
CCP Chinese Communist Party
CCP Comparative Constitutions Project
CE Common Era
CEELI Central and East European Law Initiative
CEO chief executive officer
CFR Council on Foreign Relations
CIA Central Intelligence Agency
CISG (Convention on) Contracts for the International Sale of Goods
CLB Civil Liberties Bureau (Japan)
CRS Congressional Research Service
DAAD Deutscher Akademischer Austauschdienst
D.C. District of Columbia
D.C.L. Legis Civilis Doctor or Doctor of Civil Law
ECA Economic Cooperation Administration
ECSC European Coal and Steel Community
EEC European Economic Community
E.U. European Union
FEA Federal Economic Administration
xviii Abbreviations

GDP gross domestic product

GHQ General Headquarters or SCAP
HEC École des Hautes Études Commerciales de Paris
IACL International Academy of Comparative Law
IALL International Association of Law Libraries
IALS International Association of Legal Science
IBM International Business Machines Corporation
IBRD International Bank for Reconstruction and Development
ICCL International Committee for Comparative Law
ICJ International Commission of Jurists
IDA International Development Association
ILC International Legal Center
IMF International Monetary Fund
ISIS Islamic State (of Iraq and Syria)
JCLU Japan Civil Liberties Union
J.D. Juris Doctor (replaced LL.B. in the United States)
J.S.D. Juridicae Scientiae Doctor or Doctor of Juridical Science
JSTOR journal storage
J.U.D. Juris Utriusque Doctor or Doctor of Both Laws (Roman and canon)
KMT Kuomintang or Nationalist Party (China)
LA Los Angeles
LC Library of Congress
LDP Liberal Democratic Party (Japan)
LL.B. Legum Baccalaureus or Bachelor of Laws
LL.M. Legum Magister or Master of Laws
LRS Legislative Reference Service
LSU Louisiana State University
MARC machine-​readable cataloging
M.C.L. Master of Comparative Law
N number
NGO nongovernmental organization
NIL Uniform Negotiable Instruments Law
NPAC National Program for Acquisitions and Cataloging
NYU New York University
OECD Organisation for Economic Co-​operation and Development
OEEC Organisation for European Economic Co-​operation
OMGUS Office of Military Government or AMG
OUP Oxford University Press
PEU Pan European Union
Ph.D. Philosophiae Doctor or Doctor of Philosophy
PRC People’s Republic of China
SCAP Supreme Commander for the Allied Powers (Japan)
S.J.D. Scientiae Juridicae Doctor (equivalent to J.S.D.)
SLADE Studies in Law and Development (Stanford University)
 Abbreviations xix

UCLA University of California, Los Angeles

U.K. United Kingdom
ULC Uniform Law Commission
U.N. United Nations
UNCITRAL U.N. Commission on International Trade Law
UNESCO U.N. Educational, Scientific and Cultural Organization
UNIDROIT International Institute for the Unification of Private Law
U.S. United States
USA United States of America
USAID U.S. Agency for International Development
USSR Union of Soviet Socialist Republics
WGI Worldwide Governance Indicators
WJP World Justice Project
YCC Younger Comparativists Committee
 1
Legal History and Comparative Law

The history of what the law has been is necessary to the knowledge
of what the law is.
Oliver Wendell Holmes Jr.1

A. Introduction

1. Historical Comparative Law and Comparative Legal History

Legal history and comparative law overlap in important respects.2 This is more
apparent with the use of some methods for comparison, such as legal transplant,
natural law, or nation building.3 M.N.S. Sellers nicely portrayed the relationship:

The past is a foreign country, its people strangers and its laws obscure. . . . No
one can really understand her or his own legal system without leaving it first,
and looking back from the outside. The comparative study of law makes one’s
own legal system more comprehensible, by revealing its idiosyncrasies. Legal
history is comparative law without travel.4

Legal historians, perhaps especially in the United States, have been skeptical
about the possibility of a fruitful comparative legal history, preferring in general
to investigate the distinctiveness of their national experience.5 Comparatists,
1 Oliver Wendell Holmes, The Common Law 33 (Mark DeWolfe Howe ed., 1963; 1st

ed. 1881).
2 James Gordley concisely and persuasively made the argument that one should study com-

parative law and legal history together. James Gordley, Comparative Law and Legal History, in The
Oxford Handbook of Comparative Law 753–​73 (Mathias Reimann & Reinhard Zimmermann
eds., 2006) [hereinafter Oxford Handbook]; see Charles Donahue Jr., Comparative Legal History
in North America: A Report, 65 Tijdschrift voor Rechtsgeschiedenis 1 (1997). A recent inter-
esting treatise explored comparative law historically. See O.V. Kresin 1–​2 Comparative Legal
Studies: 1750 to 1835 (W.E. Butler, ed. & trans., 2019) (Ukrainian orig. 2017).
3 See David S. Clark, Comparative Law Methods in the United States, 16 Roger Williams U.L.

Rev.134, 137–​38 (2011).

4 M.N.S. Sellers, Republican Legal Theory: The History, Constitution and Purposes of

Law in a Free State 99 (2003); see David Lowenthal, The Past Is a Foreign Country (1985).
5 Hermann Wellenreuther, Introduction: German-​American Constitutional History—​The Past and

the Present, in German-​American Constitutional Thought: Contexts, Interaction, and

Historical Realities 1, 7–​11 (Hermann Wellenreuther ed., 1990); C. Vann Woodward, Preface,

American Comparative Law. David S. Clark, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780195369922.003.0001
2 American Comparative Law

however, content with revealing or promoting similarities or differences be-

tween legal systems, by their nature strive toward comparison. Some American
historians, especially since World War II, see the value in this.6
For Europeans, the value in comparative legal history has been evident since
World War II with the desire of politicians and jurists in civil law nations to
reduce nationalism and to promote a common legal tradition in the interest of
peace and economic prosperity. Recalling an earlier period of shared juristic
learning associated with the jus commune in continental Europe, proponents
of emphasizing similarities among nations succeeded in building the institu-
tional framework of the European Union (E.U.). At the doctrinal level, many
jurists investigate and compare specific legal issues and even branches of law,
often historically, to promote harmonization among E.U. member states. These
efforts may originate with the E.U. Commission though the use of directives7
or with scholars who obtain government or private funding for collaborative
projects.8
David Ibbetson identified another approach that one might use to combine
the comparative method and legal history: “the study of one aspect of a single
legal system but from a standpoint outside that system.”9 David Rabban wrote an
important book using this method about U.S. legal scholarship from the end of
the Civil War until World War I.10 In general, I study over the course of American
history law-​trained individuals who utilized their specialized knowledge to con-
sider the desirability of foreign legal ideas, rules, and institutions. After World
War II, a new interest in the United States developed to examine the feasibility
of promoting legal change in foreign nations toward adoption of American legal
institutions, processes, and rules. On some occasions, these persons reflected
and reacted to their internal or external social, cultural, political, and economic

in The Comparative Approach to American History ix–​x (Woodward ed., 1968) [hereinafter
Woodward, Preface]; Woodward, The Comparability of American History, in The Comparative
Approach to American History, supra, at 3–​11 [hereinafter Woodward, Comparability]. In
European civil law nations, legal history traces back to a period of relative universality with Roman
and canon law prior to the nationalism and statism of the eighteenth century. The European Society
for Comparative Legal History has its own journal combining the two disciplines.

6 Woodward, Preface, supra note 5, at x–​xi; Woodward, Comparability, supra note 5, at 12–​16.

Comparisons “compel Americans to see their past in a new light; to revise complacent assumptions
of national exclusiveness, uniqueness, or excellence; to reconsider commonplace myths and flat-
tering legends; and to put to the test of comparison many other traditional assumptions that are
rarely subjected to such scrutiny.” Woodward, Preface, supra, at xi.
7 TFEU arts. 288–​89.
8 See, e.g., the nine-​volume series, Comparative Studies in the Development of the Law of Torts in

Europe, with numerous editors, published between 2010 and 2012.

9 David Ibbetson, The Challenges of Comparative Legal History, 1 Comp. Leg. Hist. 1, 3 (2013).
10 David M. Rabban, Law’s History: American Legal Thought and the Transatlantic

Turn to History 1–​9 (2013).

 Legal History and Comparative Law 3

environment to initiate the comparison. Thus, the historical investigation in this

volume will usually comprise an intellectual factor as well as a social factor.11
Moreover, I follow the established pattern in American comparative law and
legal history and distinguish between the civil law and common law traditions.
Since American legal history until recently began its research with English
origins, the task of demonstrating significant continuities between American law
and that of Great Britain would be modest.12 Consequently, I focus on exploring
situations in which lawyers13 and judges investigated or borrowed legal rules
and institutions from outside the common law tradition or instances in which
Roman law, canon law, natural law, or civil law was already part of the English
legal system.14

2. Methodological Issues

A typical method in comparative law—​ legal transplantation—​ will inform

much of the analysis in this book. This method, which may involve importing
(borrowing) or exporting (formerly dominant to the process of colonization,
but more recently used in nation building), is a tool in intellectual history. On
the importing side, some authors emphasize the importance of specific actors,
knowledgeable about a foreign system, who were crucial in the introduction or
development of a legal ideology, institution, principle, or rule in the recipient
country. If they find a similarity, the inference is that the person used this special
knowledge to import the legal element.15 Others first stress ideological, doctrinal,

11 Ibbetson described some examples of institutional or external elements that influenced legal

change. Ibbetson, supra note 9, at 8–​11. For the social factor historically on a global level, see David
S. Clark, History of Comparative Law and Society, in Comparative Law and Society 1–​36 (Clark
ed., 2012).
12 William Nelson found that the primary issue in pre-​1960 American legal history concerned

the reception of the common law in the United States. William E. Nelson, Legal History before the
1960s, in The Literature of American Legal History 1, 7–​15 (William E. Nelson & John Phillip
Reid eds., 1985) [hereinafter Nelson, Legal History]. Some legal historians still value the continui-
ties between English law and American law. John H. Langbein, Renée Lettow Lerner, & Bruce
P. Smith, History of the Common Law: The Development of Anglo-​American Legal
Institutions xxv–​xxvi (2009).
13 I will often use the word lawyers to include all law-​ trained persons, including judges, law
professors, and politicians.
14 For this purpose, I build on the recent work of several scholars who combine legal history and

comparative law—​especially Michael Hoeflich and M.N.S. Sellers—​but also Daniel Coquillette,
Richard Helmholz, David Ibbetson, Mathias Reimann, Peter Stein, and Reinhard Zimmermann.
15 M.H. Hoeflich, Roman and Civil Law and the Development of Anglo-​ American
Jurisprudence in the Nineteenth Century 2–​3 (1997); see id. at 26–​49 (Joseph Story); David
S. Clark, The Civil Law Influence on David Dudley Field’s Code of Civil Procedure, in The Reception
of Continental Ideas in the Common Law World: 1820–​1920, at 63 (Mathias Reimann ed.,
1993); Michele Graziadei, Comparative Law as the Study of Transplants and Receptions, in Oxford
Handbook, supra note 2, at 441–​47.
4 American Comparative Law

or institutional similarities between the supposed donor nation or its scholars

and the recipient nation, inferring that the transplant must have occurred.16
Although legal historians and comparatists have used approaches associated
with specific persons or with ideology, doctrine, and institutions, the generally
accepted notion of an Anglo-​American common law hinders the search for sim-
ilarities between civil law countries—​primarily France, Germany, and Spain—​
and the United States. In addition, since the American insurgents created the
United States as a republic, the prestigious example of Rome (and the lack of
convincing contemporary European examples) suggests an important link to re-
publican Rome.17 Only since the 1960s, however, have classicists surveyed the
writings of American framers comprehensively to make the argument.18
The issue of influence is a complex one. It appears to concern historians, po-
litical scientists, and sociologists more than legal comparatists. The latter may
be satisfied to identify, explain, or evaluate similarities and differences between
two legal systems, although they too sometimes speak of influence or causation.
From the perspective of this book, any of the commonly accepted methods of
comparative law that American lawyers have used with foreign law to under-
stand another legal system or to formulate, evaluate, or implement new legal
rules or institutions qualifies as comparative law.19 Two of the most popular con-
temporary methods that comparatists use are functionalism and formalistic de-
scription and analysis. The latter was dominant prior to World War II.20
Comparative law functionalists are not much interested in the issue of influ-
ence. Their primary concern is with the function that legal rules or institutions
serve in the legal systems they investigate. Comparatists using the legal trans-
plant methodology, however, do write about influence. For some scholars, the
demonstration that crucial jurists, politicians, or judges cited or promoted for-
eign legal ideas, rules, or institutions, which then appeared in the home legal
system, strongly suggests influence. For others, weaker links, such as a jurist’s
educational background, reading lists, or personal library is sufficient to show
influence. Comparative lawyers have made these connections but some attempt
to refute them based on insufficient “proof.”

16 Hoeflich, supra note 15, at 2–​3; see Alan Watson, The Transformation of American Property

Law: A Comparative Law Approach, 24 Geo. L. Rev. 163 (1990). Hoeflich noted that an important
difficulty with this approach, beyond examples of direct exportation via conquest or centralized and
systematic colonization, is definitively to distinguish between direct influence and parallel develop-
ment. Hoeflich, supra, at 3.
17 Sellers, supra note 4, at 6–​25.
18 See infra ch. 3, pt. D (republican form of government).
19 See Graziadei, supra note 15, at 461–​63, 465–​74.
20 See Gerhard Dannemann, Comparative Law: Study of Similarities or Differences?, in Oxford

Handbook, supra note 2, at 382, 385, 396–​408, 412–​18; Ralf Michaels, The Functional Method of
Comparative Law, in Oxford Handbook, supra, at 339, 343–​66, 373–​76, 378–​81.
 Legal History and Comparative Law 5

The debate about foreign law influence has been especially contentious for the
crucial American legal documents of the revolutionary period (1776 to 1791).
Involving historians, political scientists, lawyers, and classicists, each group has
tended to bring its own perspective or perspectives to the question.21 Many years
after Gordon Wood’s remarkable book, The Creation of the American Republic,22
he identified two central issues that commentators had raised in reviewing his
work. These were, first, the connection between ideology and behavior, and
second, the temporal relation between classical republicanism and liberalism.
The first point concerns the influence or causation question while the second
point illustrates the dynamic character of any foreign influence on the design of a
nation’s core legal institutions.23
The connection between ideology and behavior illustrates the belief in Western
social sciences that the mind and body are separate and that ideas or culture may
affect action. For some scholars, Wood contended, ideas are discrete things that
might “cause” people to act, but usually stronger material “causes,” such as so-
cial class or economic interest, overwhelm those ideas. Many “realists” believe
that legal ideology simply cannot explain much legal or political activity. Wood
responded that no one can prove causation one way or the other, but that ideas
constantly accompany our actions and give them meaning. “Ideology creates
behavior.”24 During the arguments concerning the Constitution, the Federalists
ended up being more persuasive, but the Anti-​Federalists still believed their ev-
idence that the document was aristocratic and undemocratic. In 1787, as today,
there was no one true meaning of the Constitution.25
Wood’s second issue about the temporal relation between classical republi-
canism and liberalism involved the relevance of foreign ideas before 1791 and
those during the decades following, matters discussed in detail in Chapters 3 and
4. Wood asserted that the contemporary polemic about republicanism and liber-
alism creates an unnecessary dichotomy that the Constitution’s framers did not
have. Jefferson, for instance, did not have to choose between Niccolò Machiavelli

21 Sellers, supra note 4, at x–​ xi, 20–​23 (lawyer and historian); Paul A. Rahe, 3 Republics
Ancient and Modern (Inventions of Prudence: Constituting the American Regime)
27–​30 (1994) (historian); Meyer Reinhold, Classica Americana: The Greek and Roman
Heritage in the United States 17–​20 (1984) (classicist); Michael P. Zuckert, The Natural
Rights Republic: Studies in the Foundation of the American Political Tradition 92–​96
(1996) (political scientist).
22 Gordon S. Wood, The Creation of the American Republic, 1776–​1787 (1969).
23 Gordon S. Wood, Ideology and Origins of Liberal America, 44 Wm. & Mary Q. 628 (1987).
24 Id. at 631; see id. at 628–​31. “In 1787–​1788 Federalists and Antifederalists argued over the ‘aris-

tocratic’ and ‘democratic’ nature of the Constitution. Each side tried to persuade Americans to accept
its particular attribution of meaning to the document. The Federalists made a brilliant case for the
view that the Constitution was thoroughly republican and democratic, and they could do so because
of the way republicanism and democracy had developed by 1787.” Id. at 631–​32.
25 Id. at 632. Lawyers may need the fiction of a “correct” interpretation of the Constitution, but

historians should be open to deeper complexities of culture and action. Id. at 632–​34.
6 American Comparative Law

(1469–​1527) and John Locke (1632–​1704); he could believe that the danger of
corruption in American government was as serious as the need to protect in-
dividual rights. Nevertheless, the framers did write about “republicanism” in
their arguments, but none referred to “liberalism” with the meaning currently
ascribed to that term. That does not mean that the framers failed to recognize
the self-​interested pursuit of happiness; however, the emergence of party com-
petition, the liberal world of business, and an acquisitive society occurred in the
early nineteenth century.26
Beyond the revolutionary period, the dominant view among American legal
historians has been that the significance of Roman and civil law was minor for
the origin and development of American law.27 This applies both to general
works in social history as well as to those in intellectual history. Prior to 1960,
most American legal history was intellectual history, usually from the profes-
sional perspective of lawyers, conservative in nature. It often argued to promote
the rule of law and to restrain judicial decision-​making but also included the
study of constitutional history, a field in which political historians were also ac-
tive. Since 1960, a more academic tone to intellectual legal history appeared, es-
pecially related to constitutional history.28 In addition, social history—​regularly
concerned with law and social change—​became more important in the 1960s
and 1970s.29 By the twenty-​first century, legal history has blossomed in ways un-
imaginable 50 years earlier.30

26 Id. at 634–​402; see John M. Murrin, Gordon S. Wood and the Search for Liberal America, 44 Wm.

& Mary Q. 597–​601 (1987).

27 Hoeflich, supra note 15, at 1, 51, 74, 131 (1997); R.H. Helmholz, Use of the Civil Law in Post-​

Revolutionary American Jurisprudence, 66 Tul. L. Rev. 1649, 1650–​51 (1992).

28 Hoeflich, supra note 15, at 3; Nelson, Legal History, supra note 12, at 1–​ 2, 7, 19–​32; id.,
Conclusion: Standards of Criticism, in The Literature of American Legal History 303 (William
E. Nelson & John Phillip Reid eds., 1985); see G. Edward White, Tort Law in America: An
Intellectual History (1980) [hereinafter White, Tort Law]. For constitutional history, see
Constitutionalism and American Culture: Writing the New Constitutional History
(Sandra E. Van Burkleo, Kermit L. Hall, & Robert J. Kaczorowski eds., 2002); William M. Wiecek,
The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–​1937
(1998).
29 On the shift in general American history to a social perspective, see, e.g., Sources of the

American Social Tradition xv–​xx (David J. Rothman & Sheila M. Rothman eds., 1975) [herein-
after Sources]. It is more accurate to think of an approach to legal history on a continuum between
emphasis of intellectual or cultural factors and of social factors, with many scholars utilizing both.
Roscoe Pound and Willard Hurst illustrated the variation in the twentieth century. Nelson, Legal
History, supra note 12, at 6.
30 Michael Grossberg & Christopher Tomlins, Preface, in 1 The Cambridge History of Law

in America: Early America (1580–​ 1815) vii, xiii–​xiv (Michael Grossberg & Christopher
Tomlins eds., 2008) [hereinafter 1 Cambridge History]; see A Companion to American Legal
History (Sally E. Hadden & Alfred L. Brophy eds., 2013); Michael H. Hoeflich & Steve Sheppard,
Disciplinary Evolution and Scholarly Expansion: Legal History in the United States, 54 Am. J. Comp.
L. 23 (Supp. 2006); Assaf Likhovski, The Intellectual History of Law, in The Oxford Handbook of
Legal History 151–​69 (Markus D. Dubber & Christopher Tomlins eds., 2018).
 Legal History and Comparative Law 7

3. Scope of the Book

I divide the history of American comparative law into seven periods.31

Chapter 2 describes the British colonial period, beginning with a review of the
place of Roman, civil, and canon law in English legal history followed by a dis-
cussion of what impact those elements plus natural law, particularly through
Scotsmen, might have had in America. Self-​study and apprenticeship were the
avenues to learn law in the colonies. Because the social and physical environment
in America was so different from that in England, I examine the importance of
social factors on the development of law, especially on lawyers and courts. In ad-
dition, I speculate on the relevance for law of the religious and cultural diversity
that existed in the 13 North American colonies. Finally, I select John Adams as an
exemplary legal comparatist in the pre-​revolutionary period and survey his law
practice and political writings.
Chapter 3 examines the legal foundation for the new republic established
from 1776 to 1791. The Declaration of Independence (1776), the Constitution
(1787), and the supplemental Bill of Rights (1791) were all extraordinary legal
documents. The men who drafted and defended them, most of whom had
studied or practiced law, looked to three major sources beyond those parts of
British law that offered promise for a new land. First, the legal structures of clas-
sical Greek city-​states, their leagues, and the Roman Republic were the most vis-
ible and persuasive counterexamples to monarchy. Second, European political
philosophy (continental and British) from the sixteenth to eighteen centuries,
with its treatment of classical polities and embrace of natural law rules, supplied
a modern supplement to Roman law. Third, the ethnic and religious diver-
sity in the 13 colonies presented popular views of law appropriate for a nation
founded on the people’s will rather than divine delegation. This pluralism further
suggested that the framers should layer, balance, and check sovereign power, de-
rived from these different peoples, to avoid the tyranny that drove colonists to
rebel in the first place.
Most comparative law activity during this period concentrated on public law,
especially the structure for and limits on national government, its relation to the
constituent states and to the people, and certain criminal procedure rules. It was

31 My division reflects major changes in comparative law activity. There has been a reassess-

ment since 1980 in the traditional periodization of early American legal history. Stanley Katz, al-
ready in the mid-​1960s, asserted that the broadening range of source materials suggested significant
continuity between the pre-​revolutionary period and the early republic. Stanley N. Katz, Looking
Backward: The Early History of American Law, 33 U. Chi. L. Rev. 867, 882–​84 (1966) (book review).
Legal historians prior to 1980 generally followed Roscoe Pound’s thesis of a “formative era” begin-
ning after 1776. James A. Henretta, Magistrates, Common Law Lawyers, Legislators: The Three Legal
Systems of British America, in 1 Cambridge History, supra note 30, at 555, 561–​62; see Roscoe
Pound, The Formative Era of American Law vii (1938) [hereinafter Pound, Formative Era].
8 American Comparative Law

a small group of exceptional lawyers, trained as classicists, who succeeded in for-

mulating and enacting the core legal documents. The chapter emphasizes the
work of several of these: John Adams, Alexander Hamilton, John Jay, Thomas
Jefferson, James Madison, James Wilson, and George Wythe.
Chapter 4 analyzes the period 1791 to the end of the Civil War, what Roscoe
Pound described as part of the formative era of American law. Lawyers with
knowledge of Enlightenment legal philosophy and Roman and civil law shifted
their attention primarily to the task of constructing a system of private law.
Nevertheless, comparatists explored penal reform and adopted ideas from
European criminology that made Pennsylvania and New York models that
French and German jurists then studied. In addition, the expansion of the na-
tion to absorb Louisiana as a territory and later a state provided an important
instance of civil law influence, particularly on the matter of legal codification.
These decades also saw the beginning of American comparative legal science,
which legal education, a growing legal literature—​ James Kent and Joseph
Story stood out—​and law libraries amply illustrated. I select a dozen or so legal
comparatists for detailed treatment on their contributions to early comparative
law. In addition, I explore the diverse important legal sources on the codification
and slavery questions.
German historical jurisprudence and learned law took hold in the United
States after the Civil War through the remainder of the nineteenth century.
Chapter 5 begins with the romanticism and nationalism that infused the histor-
ical school and differentiated it from natural law theory. The German version
aspired to be both systematic as a science and historical for sources of law. James
Carter, a leading American disciple of historical jurisprudence, used it to defeat
David Field’s ambitious codification program in New York. The learned law as-
pect of German legal science found fertile ground at Harvard Law School in the
1870s, which transformed American legal education to firmly root its teaching
and development at universities with a scientific casebook method of instruction
in judicial source materials. Furthermore, significant comparative law libraries
emerged during this time.
Roman and civil law survived in this era of industrialization and social trans-
formation. Roman law teaching was a substitute for academic comparative law, a
bridge between the classical past and interest in universalism and unification of
law in the twentieth century. Legal periodicals provided an outlet for compara-
tive law information and scholarly essays, and a few American jurists were aware
of German sociological jurisprudence, which was a forerunner to legal realism.
William Hammond, Oliver Wendell Holmes, William Howe, and Christopher
Tiedeman afford examples. Finally, comparative law formed as a discipline, first
in Europe, then with supporters in the United States, highlighted by the 1900
International Congress of Comparative Law.
 Legal History and Comparative Law 9

At the beginning of the twentieth century, sustained scholarly comparative

law activities were largely associated with the successful effort to establish sci-
entific teaching and research at leading law schools, 25 of which created the
Association of American Law Schools in 1900. Chapter 6 details the new field
of comparative juristic inquiry that emerged from both idealistic as well as prac-
tical concerns. The interest of jurists in drawing from history and social science
as well as traditional legal sources provided new perspectives for both national
and comparative law, especially on the role of law and government in society.
Woodrow Wilson, the 28th U.S. president, was a prominent legal comparatist,
the first to become president since John Adams, Thomas Jefferson, and James
Madison set an impossibly high standard. Hessel Yntema later promoted scien-
tific methods to develop a social science of law.
As an aftermath of the 1898 Spanish-​American War, the Treaty of Paris ceded
sovereignty over the Philippines to the United States. U.S. foreign policy took a
course of indirect and consensual engagement with the legal system in the new
territory, especially during Wilson’s presidency. A few jurists—​some of whom
had knowledge of the civil law tradition—​worked with American foundations,
professional associations, universities, or the U.S. government to support foreign
legal reform, including in China after it became a republic in 1912, reflecting the
domestic Progressive movement to improve law.
Organized American comparative law began in earnest with the 1904 St.
Louis Universal Congress of Lawyers and Jurists. The American Bar Association
(ABA) created the Comparative Law Bureau in 1907, with annual meetings and
a Bulletin from 1908 until 1914, when World War I disrupted cross-​Atlantic
connections, then continued with special Bureau issues of the ABA Journal
through 1929. Comparatists developed teaching materials; set up graduate law
degree programs that included comparative law, many completed by foreign
lawyers; and supported expanded comparative law libraries. In 1925, Bureau
members established the American Foreign Law Association in New York City.
Americans also took a leading role in forming the International Academy of
Comparative Law, with Roscoe Pound and John Wigmore as active members.
Chapter 6 then describes two sides of German-​American juristic relations in
the 1930s. On the one hand, there was the rise of Nazis in Germany and anti-​
Semitism in American universities. On the other, several U.S. law schools ac-
cepted some émigré legal scholars much to their mutual benefit while a few
Catholic-​ affiliated university law schools and philosophy and government
departments took in those who revived an interest in natural law jurisprudence.
Just as the U.S. government undertook legal transplants to the Philippines at
the beginning of the twentieth century, it again reengaged in legal reform after
1945 in Germany, Japan, and Korea. Chapter 7 traces those efforts that were sim-
ilar and distinct among the three countries, dependent on the social, political,
Another random document with
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barely twenty was trusted as if she were a woman of sixty, and
although this was new to Isabey, it touched and enlightened him.
In place of Angela’s inexperience he had a thorough knowledge of
the world; hence he did not adopt Angela’s innocent delusion that it
would be easy to reconcile the real and the ideal. But for her, he
would at some time or other have acquiesced in one of those
marriages which are arranged with a view to fitness in every respect
except the perfect union of hearts. Often this union came; Isabey
was by no means prepared to condemn those methods concerning
marriage which he had been accustomed to all his life. A
conventional marriage, however, no longer was possible for him, but
at least he could enjoy the month in paradise which had come to him
out of the blue.
The thought that he would be tended by Angela, that he would be
able to command, by the royal will of a wounded man, her sweet
presence, her soft voice in reading to him, her conversation, which
was full of archness and simplicity, captivated him. The delicious
glow which overspread his spirit extended to his body and gave him
an exquisite sense of ease and comfort. In that month which he
allowed himself he would become well acquainted with Angela’s
mind. He had taken but small interest in women’s minds before,
although he keenly appreciated their accomplishments. Angela had
few of these accomplishments, but as well expect accomplishments
of a wood nymph. The study of her intelligence, however, was like
exploring a beautiful pleasance where there were groves, gardens,
and crystal fountains. She was one of the few women he had ever
seen whom he felt convinced age could not wither nor custom stale.
He was so lost in his delicious reverie that he did not hear the quiet
opening of the door, and then Angela with her usually pale cheeks
scarlet with the tingling cold, her eyes sparkling, and the snowflakes
still lying on her red mantle, stood by him.
She shook the snow off the mantle and cried: “I had such an exciting
walk! It was only up and down the garden path from the gate to the
bench under the lilac bushes, but it seemed to me as if I had never
before seen the garden look quite as it did. You know, there is a
moon, although there is a snowstorm. That doesn’t happen often.
And then I had such strange thoughts!”
“Were they unhappy thoughts?” asked Isabey, turning his black eyes
upon her.
“N—o, not at all unhappy, but singular. You see, up to a year ago
nothing had ever happened to me, and now all things are happening,
all things are changing.”
Isabey rose weakly from the couch, and, taking Angela’s hand in his,
kissed it with the tenderest respect.
“I hope,” he said, “that all will work toward your happiness. I hope
some day you will be happy with Neville Tremaine, but you can
afford to be a little kind to me.”
“Yes,” replied Angela, looking into his face quite calmly. “I can afford
to be kind to you. One of the things which came to me just now in the
garden was that as soon as Neville and I are together I must do
everything I can for his happiness. You see, he has always done
everything for me, and I’m afraid I haven’t given much thought to
doing anything for him. But now you may depend upon it I shall really
study Neville’s happiness; I shall be as generous as he is.”
“You have already been very generous. You married him when all
the world had turned against him.”
“Then I shouldn’t be generous halfway. I ought to be with him and
make him happy.”
She sat down in the low chair in which she had read to him. It
seemed to her if Isabey and she had spent hours in explanations
they could not have understood each other better.
So thought Isabey. Angela could never be his, but at least he had
found that jewel which all men seek and few discover—that other
half of his being, the woman who perfectly understood him. He
remembered that the hearts of men and women are like the cello
and the violin—both are required to form the perfect strain of music.
 CHAPTER XV
THE HEGIRA

IT is possible in remote country houses, especially when

snowbound, for one day to be exactly like the other for a long period.
Such was the case at Harrowby during the month after Isabey’s
arrival. Each day repeated itself; it was the worst winter known for
thirty years in eastern Virginia, and one snowstorm succeeded
another. The river was frozen, cutting off communication by water.
George Charteris managed to plunge on mule-back daily through the
snow to Harrowby, but no such mode of progression was possible for
Mrs. Charteris. Angela, fired by George Charteris’s example, had her
side-saddle put on a sure-footed mule and so ventured out a few
times, but found riding rather more difficult than walking. She had not
since her marriage paid visits anywhere except to Greenhill, and the
mutual attitude of herself and the county people was such that she
had no visitors. The mails were interrupted, and, although Mrs.
Tremaine wrote daily, her letters were long in coming and generally
arrived in a batch. Richard was recovering slowly, but Mrs. Tremaine
could not think of leaving him, and Archie would remain with them
until his mother could return to Harrowby.
Madame Isabey and Adrienne were established at a Richmond
hotel, and the elder lady from her letters seemed perfectly happy.
There was much going on in the Confederate capital, and, to add
zest to events, was the continual prospect of siege and battle. She
wrote that Adrienne was much admired. At the first levee the ladies
attended at the Confederate White House, Adrienne had attracted
universal admiration. The fame of her charming voice having
reached the President, he had asked her on the occasion of her first
formal visit to the executive mansion to sing and play for him. His
grave and anxious face had lightened under the spell of her little
French songs so full of grace and sentiment and so exquisitely
rendered. Great attention was shown her by everyone, and they
were asked to “refugee” for the war in several distinguished families,
but Madame Isabey declared she preferred Harrowby, and had not
seen any boy so sweet as “Monsieur Archie” with his rose-red hair.
Refugeeing was exactly like the life her grandfather lived when he
was an émigré in England in 1789. She often thought what a
delightful supply of stories she would have to tell of her days as an
émigré in Virginia.
Adrienne, too, wrote, and her letters were more interesting though
less expansive than Madame Isabey’s. These first letters had been
written in ignorance of Isabey’s arrival at Harrowby, but when that
was known Madame Isabey expressed the greatest solicitude, and
would have come back instantly except for the impassability of the
roads between Richmond and Harrowby.
Adrienne received in a letter from Angela the news of Isabey’s
presence at Harrowby one night just as she was dressing to go to a
levee at the White House, where she was certain to be courted and
admired by all, from the grave-faced President down to the boy
lieutenants, who rode from camp into Richmond for an evening’s
pleasuring. It was, perhaps, the knowledge that Isabey and Angela
were together which brought the color to Adrienne’s lips and cheeks
and the light to her eyes. She realized, as women do, the marked
admiration she excited, the way in which the eyes of the Confederate
officers followed her slight figure in her pale-blue draperies with
diamonds in her hair and on her breast. If only her vanity had been
wounded by Isabey’s coldness to her charms it would have been
soothed by the flattering attentions lavished upon her. But Adrienne’s
wound was deeper than that. While she was receiving with soft and
smiling grace the compliments and gallant speeches of young
officers and the more insidious flattery of older men, she was like
that Spanish lover whose body was at Cordova, but whose soul was
at Seville.
Angela’s letter had described quite naturally and prettily how each
day passed at Harrowby, and Adrienne had no difficulty in calling up
the scene. At that time in the evening they were all sitting in the
study in order to keep Isabey company. Lyddon was probably
reading to him while Angela did needlework and—and Colonel
Tremaine dozed during the reading and waked up to compliment
Lyddon upon his “instructive and entertaining performance.”
Adrienne by some psychic force felt as if this scene were passing
before her in the midst of the crowded levee with the hubbub around
her, the voices high-pitched as men’s voices grow in time of war, and
with the deep and only half-concealed excitement of soldiers who
turn from looking into women’s eyes to meet the face of death in a
thousand different forms, and of women who laugh tremulously to-
night because after to-morrow they might never laugh again. The
crowd, the laughter, the voices, the glances, bold, or shy, or
meditative, seemed wholly unreal to Adrienne, and what was
tangible was the scene in the quiet study, with Lyddon’s calm voice,
as Angela had described—Isabey’s eyes fixed upon Angela with that
expression of profound interest and tenderness which Adrienne had
observed more than once. When the levee was over and she was
back in her room at the hotel, she sat for a long time before her
mirror, surveying herself in her laces and diamonds. She pitied
Isabey quite as much as herself, for Adrienne was not incapable of
generosity. Isabey was only a few days too late when he reached the
gate of paradise; it was closing, and nothing can arrest the closing of
those immortal gates. One thing, however, Adrienne divined with the
prescience of love, that Isabey would have a month of happiness, a
little time of radiance when Angela’s image, already strongly
impressed upon him, would become a part of himself. The thought of
this was poignant to her and kept her awake as she lay in her bed.
Angela had written that Isabey’s improvement was wonderful even in
the three or four days he had been at Harrowby. It continued so, and
in a week he was another man. The thinness about his temples
disappeared, and his face was no longer pinched and wan, nor did
his uniform hang so pitifully loose upon his figure. In a fortnight he
was well except for his arm and leg. He could, with the assistance of
a stick, limp about the ground floor, but his arm was still in a sling.
Nevertheless, he would abate none of his invalid privileges as far as
Angela was concerned. He made the same silent appeal to her for
her gentle ministrations, and it never occurred to Angela to withhold
them. Life went on, dreamlike, in the isolated country house, and
was sweeter for being so dreamlike. Little news of any sort reached
them either from the Confederate camp fifteen miles in one direction
or the Federal camp twenty miles the other way. The outside world
seemed so distant to Angela that what she heard of the crouching
dogs of war so close at hand made little impression upon her.
However, it was brought home to her through the most unlikely of
mediums—Mammy Tulip.
One night the old woman followed Angela to her room at bedtime,
and, after shutting the door, came up to her and whispered
mysteriously: “Miss Angela, ef you will wrote a letter to Marse
Neville, and watch outen de window to’des my house ’bout twelve
o’clock, an’ ef you see me come to de door an’ wave a candle an’
you drap de letter on de groun’, somebody will pick it up, an’ Marse
Neville will git it sho’.”
“What do you mean, Mammy Tulip?” asked Angela in amazement.
“Chile, doan’ you neber ax me what I mean; you jes wrote dat letter
an’ gib my lub an’ ’spects to Marse Neville, an’ tell him to say he
pra’ers jes’ as reg’lar as he change he shirts. I know he ain’ neber
gwine to fergit to change he shirt, wartime or no wartime; an’ you
drap de letter outen de window——”
She caught Angela by the arm, and continued in an agitated
whisper: “Fur Gord’s sake, doan’ tole nobody ’bout drapping de letter
on de groun’.”
Angela was astonished, but could get no explanation out of Mammy
Tulip, except pleadings that she write the letter, and then the old
woman waddled off.
Angela wrote Neville a long letter, telling him what was happening at
Harrowby, the news of Richard and of his mother, of Isabey’s
presence there, and lastly assuring him of her love and constant
remembrance and desire to join him as soon as possible.
It was eleven o’clock before the letter was finished. Formerly Angela
could dash off letters to Neville as fast as she could write, but now
she wrote carefully weighing every word. She sat on the floor before
her fire, looking into the dying embers and puzzling over many
things. She could not form the least conjecture how her letter would
reach Neville, but a little before twelve o’clock she looked out of her
window and saw a candle waving at the door of Mammy Tulip’s
house. Then Angela softly raised the sash, and the letter, sealed and
addressed, fluttered out into the darkness and dropped upon the
snow-covered ground. Angela, after a glance at the black sky and
the white earth, put down her window and went to bed, where she
soon fell into the deep, sweet sleep, that glorious heritage of youth
and health of which she had not yet been robbed.
Next morning, however, the explanation of Mammy Tulip’s action
became apparent, and the nearness of the Federals was brought
home to everyone at Harrowby. Tasso, Jim Henry, Mirandy, Lucy
Ann, and more than twenty of the younger negroes failed to report to
Hector’s bugle call.
When Angela came downstairs to breakfast she saw the unwonted
spectacle of Hector laying the breakfast table.
“Dem worthless black niggers is done gone to de Yankees,” Hector
explained, sententiously, “wid some o’ de likeliest young niggers on
dis heah place.”
Angela was astounded.
“Gone to the Yankees! Gone to the Yankees!” she repeated.
“Yes, Miss Angela.”
Colonel Tremaine and Lyddon came in and Hector told his story.
“Las’ night,” he said, “’bout twelve o’clock, a’ter all de lights in de
house was out, dey started afoot wid dey bundles. De walkin’ in de
snow is mighty bad, but dey thought ’twould keep ole Marse from
girtin’ a’ter ’em an’ bringin’ dem back.”
“I have no desire whatever to bring them back,” replied Colonel
Tremaine with dignity, “and when the war is over we shall exact full
compensation from the North for every negro enticed away from his
master or mistress. Angela, my dear,” he continued, turning to her,
“we must bring in two of the field hands in place of Tasso and Jim
Henry, and I will endeavor to recruit for you three or four maids from
the spinning and weaving rooms.”
Here Mammy Tulip bounced in wrathfully, apologetic, and yet with a
species of shamefaced triumph. It was her first view of freedom for
her race. Mirandy was her granddaughter, and Mammy Tulip tried to
explain Mirandy’s defection.
“Tasso an’ Jim Henry an’ de rest on ’em kep’ on arter Mirandy to go
wid ’em, an’ things is mighty nice wid dem Yankees now. De colored
folks wid dem dance ebery night, and dey can git a fiddler any time
fur a quarter, an’ quarters is plentiful wid de Yankees. An’ sech
funerals! De music a-playin’ an’ hollerin’ wid pleasure an’ sometimes
two or three gret big funerals a day!”
Angela was too stunned at Mirandy’s levanting to appreciate this
view, but Mammy Tulip, seeing this, assumed a still more apologetic
attitude.
“Mirandy, she hol’ out long time. She say she cyarn’ lave Miss
Angela, an’ ef it hadn’t been for dem funerals, I doan’ believe
Mirandy ever would a gone ’way. An’ de larst thing she say was:
‘Please ax Miss Angela to ’scuse me.’ Den she cry an’ say, ‘O
granmammy, what Miss Angela gwine do widout me?’” And then
Mammy Tulip suddenly whisked herself out of the room so as to
avoid being questioned.
Hector perforce had gone out to bring in breakfast, a labor which he
had long since foregone.
As soon as Mammy Tulip and he were out of the room, Lyddon said
to Colonel Tremaine: “Hector, as well as the old woman, knows all
about it, as you see. No doubt the plans of these young negroes
were made long ago, and probably every other negro on the
plantation knows it.” Colonel Tremaine looked pained and mystified.
“It seems incredible to me,” he said, “that Hector, who has been my
boy for nearly sixty years, should know of any such design without
informing me. When I took him to Baltimore in ’52, he carried all the
money for the journey in a belt around his waist, and when a negro
abolitionist would have beguiled him into escaping to Philadelphia,
Hector remarked that he had money enough in his belt to buy the
abolition negro and all his family. It is impossible that he should
change in his attitude toward me.”
“The attitude of every negro toward every white person is changed,”
coolly replied Lyddon. “Why should it not be?” Just then Hector came
in with the tray from the kitchen, carrying mountains of muffins and
batter cakes. Colonel Tremaine sought his eye, but Hector, for the
first time in his life, evaded the look.
“Very well,” cried Angela, with spirit, “if all the negroes go away we
can do as Marie Antoinette and her ladies did at the Little Trianon. I
can make the butter, uncle, if you will milk the cows.” At which
Colonel Tremaine smiled grimly, and remarked that during the
Mexican War he had acquired the accomplishment of being able to
milk a cow into a bottle and generally without the knowledge of the
cow’s owner.
This flight of the negroes from Harrowby was paralleled by what
occurred within a few days at numerous estates in the county. The
young negroes went off in droves, taking advantage of the snow to
avoid pursuit.
George Charteris had a harrowing tale to tell of every house servant
at Greenhill disappearing in a single night, and this with a family of
refugees, including five small children, in the house. Mrs. Charteris
had been forced to import a plowman into the dining room as butler,
who put his fingers in the glasses at dinner and called sauce for the
suet pudding “slush for de tallow roll.”
Angela’s experiences were not unlike these. A couple of raw ebony
youths, Tom and Israel, otherwise known as Izzle, occupied but did
not fill the places of the well-trained Tasso and Jim Henry. They were
frightened half out of their lives at “Unc’ Hector” and fled from his
face when he was endeavoring to teach them their business. They
fell over each other in their desire to oblige “Miss Angela,” whom
they adored, and collided with each other at frequent intervals during
every meal.
“I ’clare to Gord, Miss Angela,” groaned Hector, “dem black niggers
gwine lose me my ’ligion. At pra’r time ’stid o’ praying I jes goes
down on my knees and cusses dem niggers same like Abraham
cussed Isaac and Rebekah. If Job had had black Torm an’ Izzle, he
would have cussed the Gord an’ died, an’ I ain’ no better’n than Job.
Lord A’mighty! I wonder what General Zachary Taylor, ole Ruff an’
Ready, as dey called him, would a’ done wid Torm an’ Izzle.”
“The best he could, I suppose, Uncle Hector,” responded Angela
promptly and with the positiveness of youth.
But housekeeping with Hector, who knew not the name of work, and
Torm and Izzle became a complicated matter. Hector’s sole real
employment for many decades had been to shave Colonel Tremaine
every morning, and to this he laboriously added blacking the
Colonel’s shoes and brushing his suit of homespun.
Mammy Tulip, however, came nobly to the front and did the work of
butler and valet, cuffed Torm and Izzle when they were idle, and in
general kept the whole Harrowby establishment from falling into
chaos.
She maintained a strange reserve toward Angela, whom she had
cradled in her arms, but at the end of a few days came to her with
the same mysterious suggestion that a letter be written to Neville.
Angela wrote again and dropped her letter out of the window as
before. Next morning George Charteris brought over the news that
the plowman butler at Greenhill had disappeared in the night for the
Federal lines and half a dozen of the few remaining able-bodied
negro men at Greenhill.
Angela’s mind was illuminated. Mammy Tulip knew of these
impending flights and was shrewd enough to see in them a means of
communicating with Neville. That the scheme worked was soon
shown by Angela’s receiving a fortnight later a reply from Neville,
who was still in the West. It was given to her privately by Mammy
Tulip. It bore the receiving postmark of the military post office at
Yorktown and from there had been sent to its destination through
hands unknown by Angela, but perfectly well known to Mammy Tulip.
This secret communication with the outside world had in it something
painful and disquieting to Angela. These servitors of another race,
these feudal dependents whom she had been bred to believe
absolutely devoted to the white family and to have no independent
life of thought and action, had reversed all these beliefs. They had
abandoned their masters, but not their own kith and kin, with whom
they kept in touch secretly and silently. Angela spoke of this next day
to Isabey when they sat as usual in the study, Angela reading to him.
She had discovered in herself a strange inability to keep anything
from Isabey. Her nature was frank and open, and she could reason
well enough on what she should tell or withhold from Neville, but
Isabey’s presence was a magic spell which seemed to unlock her
heart and mind, and she could not keep from him her most secret
thoughts.
Isabey had learned to know the signs of Angela’s coming
confidences, the way in which she would timidly approach a subject,
and then as if by some uncontrollable impulse tell him all. He had
been speaking of this departure of the negroes and of the dangers
which would await them, in their ignorance and helplessness,
exposed to the demoralization which infests all camps. In a moment
Isabey saw that he had touched a sensitive chord. Angela laid down
her book and going to the window looked out upon the dull wintry
landscape. Isabey watched her with that sense of inward triumph
which every human being feels who controls the will of another. In a
minute or two she came back, and, standing before Isabey’s couch,
said in a whisper:
“Last night I had a letter from Neville. It came to me so mysteriously,
not through Mr. Lyddon.” And then she poured out the story about
Mammy Tulip.
“I didn’t promise her not to tell,” Angela said breathlessly at the end,
“for I must open my heart sometimes and I have no one—no one
——”
“Except me,” added Isabey quietly, and then could have struck
himself for saying it. But he was only human after all, and he loved
Angela with a strength and passion which amazed even himself.
Angela, as the case always was when Isabey made betrayal of
himself, flushed deeply and lowered her eyes, and then after a
moment recovered herself and said coldly:
“And Mr. Lyddon. I have always told Mr. Lyddon everything since I
was a little child.”
“Yes, and Mr. Lyddon,” Isabey said, composedly.
Angela’s involuntary readiness to pour out her heart to him always
touched him as nothing else on earth had ever done, but she
likewise commanded his admiration and respect by the steadiness
with which she upheld the letter of the law. Isabey often thought that
no woman of forty could have maintained the attitude of loyalty to her
husband with more tenacity and dignity than this girl of barely twenty.
The garrison might be weak, but the citadel was strong.
Just then Lyddon entered unexpectedly, and Angela, as if to prove
she had no separate confidences with Isabey, told Lyddon the story.
Lyddon expressed no surprise.
“You blessed Southerners,” he said, “have all along expected water
to run uphill. You may make a human being a chattel legally, but you
cannot make him so actually.”
“Then would you make them citizens?” asked Angela, tartly; and
Lyddon good-humoredly taking up the cudgels, a warm discussion
followed on the question of slavery. Angela, like many Southern
women, was familiar with the dialectics of the question and was able
to make a clever defense of a doubtful position.
Isabey listened in amused silence, watching Angela’s usually soft
manner growing more excited, her eyes becoming brilliant, and the
quickness of her intelligence in meeting Lyddon’s arguments. The
discussion was ended by Lyddon’s saying, laughing: “Come now,
little girl, you’ve said all you know on the subject and have done
better than a good many orators on the hustings. However, I only
discuss it with you because I can’t talk about it to anyone else in the
county except with Captain Isabey here. The ribbon around your
neck is all awry, and your hair is tumbling down just as it always
does when you get warm in argument. What a nice arguing wife
Neville will have!”
“I shan’t argue with Neville,” replied Angela in her sweetest voice,
and looking straight at Isabey. “Neville knows more than anyone in
the world. He’s always right and always has been. I thought so from
the time I could first remember, and I haven’t changed my opinion.”
“That’s the way I shall wish my wife to talk when I have one,” was
Lyddon’s rejoinder, a possibility so preposterous that both Isabey
and Angela laughed at the mere suggestion.
In writing to Mrs. Tremaine that day Angela could not forbear telling
her of the letter she had received from Neville and that he was well
and hoping from week to week he and Angela might be united. Nor
could she refrain from telling the same thing to Colonel Tremaine,
who listened to it in cold silence, which presently changed to
agitation. However fierce his resentment against that once loved,
eldest son, he could not pretend indifference; love cannot be
strangled.
After that once or twice a week Mammy Tulip would come to Angela
with suggestions that she write to Neville, following the same method
as at first, and Angela invariably did so. The steady march of
negroes to the Federal lines revealed easily to Angela what became
of her letters.
The month which Isabey had given himself had passed quickly, and
at the end of that time he was ready, as far as his health was
concerned, to take the road. But broken and lacerated limbs are not
mended in a month, and Colonel Tremaine put an absolute veto
upon Isabey’s leaving Harrowby.
“My dear sir,” he said, authoritatively, “I am an old campaigner and I
can assure you that a soldier who is practically legless and armless
is no help to an army, and merely serves to eat up the provender.
You are absolutely useless in any capacity until you are able to walk
and use your right arm freely, and until then it is your duty—your
duty, sir, to our country—to remain at Harrowby and recuperate.”
“It’s rather hard,” remarked Isabey, “to sit here in idleness and
comfort, eating and sleeping and reading and dozing when every
man who can carry a musket is needed at the front.”
“How do you think,” asked Colonel Tremaine, calmly, “you would get
on riding a horse? It would be necessary to help you up and help you
off again, and as for arms, you would have to manage your horse,
and fire your pistol at the same time with your left hand. And if all
went well, the best that you could expect would be to be in a hospital
at the end of a week. No, sir, you will remain at Harrowby.”
Colonel Tremaine’s logic was unanswerable, and Isabey remained.
Nevertheless, he had waked from the soft dream in which he spent
the first few weeks of his return. It was now February and the land
still lay in an icy grasp, but spring would soon be at hand, and Isabey
felt a soldier’s impatience to be at his post. Angela’s society was not
less delicious to him; rather had he become more absolutely
enchained. But being a man he put fetters upon his will, his
inclination, his voice, and, taking his passion by the throat, mastered
it. Only his eyes remained uncontrolled, and sometimes in
unguarded moments were eloquent in a language which Angela
perfectly understood.
Only Lyddon saw this; Colonel Tremaine never saw anything.
 CHAPTER XVI
THE TONGUE OF CALUMNY

ONE Sunday morning a week or two after this, Angela announced

that she intended to ride to church. The roads were still impassable
for carriages, but a sure-footed horse could make his way along.
Colonel Tremaine at once said that he, too, would join the enterprise.
When Angela, in her riding habit, came downstairs about ten o’clock
she found the horse at the door and a third one, upon which Hector
was assisting Isabey. The horse was a retired cob of Colonel
Tremaine’s and had passed his fifteenth birthday and being well
gaited was admirably suited as a charger for a wounded officer. Just
as Isabey had settled himself in the saddle and gathered the reins in
his uninjured left hand, Colonel Tremaine came out.
“My dear sir,” he protested to Isabey, “this is extremely rash. You are
not able to manage a horse.”
“I think I can manage this one,” answered Isabey, smiling, “and I
mean to risk it. It makes me feel like a soldier once more to be on
horseback.”
Colonel Tremaine swung Angela into her saddle, a privilege which
Isabey envied from the bottom of his heart, and the three started off.
It was a shining winter morning, and the snow-covered earth glittered
in the crystalline light. In many places the roads had thawed, and
progress was difficult, but Isabey showed himself able with one hand
to manage his steed. Angela, who rode like a bird, looked well on
horseback, and Isabey began to believe, as Lyddon did, that some
day her girlish charms would develop into real beauty.
When they reached Petworth Church a fair-sized congregation had
already assembled. There were among them a few old men and
some schoolboys. Of these not one advanced to assist Angela from
her horse, but this Colonel Tremaine did with old-fashioned grace.
Isabey, meanwhile, managed to swing himself off his horse without
much difficulty and limp up the flagged path on the one side of
Angela, while Colonel Tremaine was on the other. The coldness
toward Angela had in no wise abated since the May Sunday, nine
months before, when her marriage to Neville Tremaine had become
known, but no one until now had actually refused to speak to her. On
this day, however, every eye was averted from her, and even Colonel
Tremaine was avoided.
Mrs. Charteris was not at church, but George Charteris was there.
He dared not refuse to speak to Angela, but the whole Harrowby
party observed him skulking behind the churchyard wall, and
keeping out of sight when Angela went into the church and when she
passed out so that he might escape speaking to her.
Angela said no word nor did Colonel Tremaine, but both, as well as
Isabey, surmised that something had gone abroad concerning her
which incensed the people still more against her. She was very far
from insensible to the treatment she received and was silent all the
way riding home. In the afternoon when, according to her custom,
she went into the study to read to Isabey, he saw that she had been
weeping, and guessed the cause of it. When he gently alluded to it,
Angela burst into a passion of tears and left the room. Isabey
clenched his one sound fist and longed to take vengeance upon the
people who, as he thought, so cruelly ill-treated this innocent girl. He
revolved in his mind the increase of hostility toward Angela and at
last determined to go to see Mrs. Charteris and ask her if she could
account for it.
Next day, having proved his ability to mount a horse, he asked for his
charger of the day before and rode over to Greenhill. He was careful
to time his visit so that George Charteris would be studying with Mr.
Lyddon; Isabey felt that he could not answer for himself if he should
catch sight of the boy that day. When he reached Greenhill he was
shown into the old-fashioned drawing-room, and presently Mrs.
Charteris sailed in. She sat down on a huge horsehair sofa and
made Isabey sit beside her, who, not yet wholly familiar with Virginia
manners, wondered whether Mrs. Charteris expected him to make
love to her after such a familiarity.
“I have been very busy all day,” she said. “As you have heard,
perhaps, all of my house servants have decamped, and with a family
of refugee children under ten years of age there is much to be done.”
“I have no house in Virginia in which to entertain refugees,”
murmured Isabey. “God be thanked for it!”
“Oh, you wicked, inhospitable creature!” cried Mrs. Charteris. “Do
you mean to say that if you had a house and your fellow
countrywomen were running away from the Yankees you wouldn’t
throw open your house and heart to them?”
“Oh, yes, I would throw open my house and heart to them, but,
meanwhile, I should go and camp out in the forest! Five children
under ten years of age! It is sweet to die for one’s country in
preference to living in the house with five children.”
Mrs. Charteris was much disgusted with him for these sentiments,
and so expressed herself. She then inquired after Madame Isabey
and Adrienne in Richmond, and how the family at Harrowby were
doing in Mrs. Tremaine’s absence, and especially after the hegira of
most of the house servants.
“We are doing remarkably well,” answered Isabey. “Mrs. Neville
Tremaine is, you know, a very accomplished housekeeper and
manages admirably the raw hands imported into the house,” Isabey
continued, speaking easily and naturally of Angela, meaning to lead
up to the object of his visit: but Mrs. Charteris suddenly forced his
hand. She paused a moment, and then said with a sad and
perplexed air:
“Captain Isabey, may I give you a caution?”
“Certainly,” replied Isabey, smiling. “I am the most cautious man
alive, and have more cautions than enterprises, but I should not
mind a few more.”
“It is a serious business upon which I wish to warn you,” replied Mrs.
Charteris, gravely. And then, leaning toward him, she continued in a
low voice: “Be very careful what you say before Angela Tremaine!”
Isabey looked at her in astonishment, and made no reply, and Mrs.
Charteris spoke again quietly:
“You know the suspicion about her which has gone all over the
county.”
“I do not know of the slightest suspicion which attaches to Mrs.
Neville Tremaine,” replied Isabey, in a tone which startled Mrs.
Charteris. She looked at him narrowly. He had perfect command
over his temper, his tongue, and his features, but the blood had
suddenly poured into his dark face, and Mrs. Charteris’s eagle eye
saw it and promptly grasped that Angela Tremaine possessed great
interest for Isabey. It only made her more keen to put him on his
guard.
“What I mean,” she said, “is that Angela Tremaine is in constant
communication with Neville Tremaine, and it is believed that she
sends Neville news of the Confederates which, of course, is meant
to injure us.”
“In short,” said Isabey, rising and standing very erect, “that Mrs.
Neville Tremaine is thought to be a spy. Excuse me, but such a
suspicion never entered my mind before, nor do I feel able to
entertain it now. Who is responsible for this rumor?”
“Everybody,” replied Mrs. Charteris, rising and throwing her hands
wide. “It is all over the county. At church yesterday I hear that no one
spoke to Angela.”
“That is true, for I was present. And this on a suspicion merely. She a
young girl, grown up in this community, known to all of you since her
babyhood!”
“My dear Captain Isabey, you seem unacquainted with the tricks of
love. Angela probably adores Neville and may consider it her duty to
tell him all she knows concerning the movements of the
Confederates.”
“Never! Mrs. Neville Tremaine has too nice a sense of honor for that.
I hardly think you can realize the seriousness of the charge which is
made against her.”
“It is serious enough,” answered Mrs. Charteris in a grave voice.
“And what could she possibly know,” asked Isabey, “that would be of
the slightest consequence? How strange are women, after all!
Nothing is too gross for them to believe.”
Mrs. Charteris took this slur upon her sex with perfect calmness. She
saw that, despite Isabey’s outward composure, he was shaken to the
center of his soul. He was the most courteous of men, and his
attitude toward women was one of delicate compliment, and these
last unguarded words which had escaped from him, and that, too, in
the presence of a woman, were significant. Isabey walked up and
down the room. Mrs. Charteris remained standing, with one hand on
the back of her chair, and, picking up a fan, fanned herself with some
agitation. Isabey, after a few turns up and down the room, came
back and scrutinized her as closely as she had examined him a few
moments before.
“I think,” said Isabey, coolly changing the subject, “that the
psychology of this war time is profoundly interesting. Not only
everything is changed, but everybody. Two years ago you Virginia
people were the quietest provincials that ever lived. I know you well.
I have visited in Virginia, and I have seen hundreds of you at your
baths and springs, and all of you are alike in some respects. I, who
know the great round world well, was always impressed by these
Virginia people as having been drugged. You didn’t seem to realize
that the world was closing in round you, around the whole South, for
that matter, and that some day a convulsion must come. I myself
own three hundred negroes. My father owned nearly a thousand, but
I have been preparing for a change ever since I grew a mustache. I
have not gone on investing in land and negroes quite unconscious
that any other values existed. If the North should succeed and the
negroes should be free, I should not be penniless, but for most of the
people of the South all values would be destroyed.”
Mrs. Charteris suspected that this digression was really meant by
Isabey to lead away from the subject of Angela, which apparently
was of such acute interest to him. But she answered promptly
enough and according to her lights:
“You are not one of these crazy abolitionists, I hope. What would we
do with the negroes if we freed them? Look at my place. I have a
hundred of them here, happy, well-fed, well cared for, nursed in
illness, provided for in old age, decently buried when they are dead.
Every Sunday afternoon I give up my time to teaching a Sunday-
school among them. Every negro woman on this place has one of
my silk dresses which I have given her. What do you say to that?”
she cried vehemently.
Isabey laughed at Mrs. Charteris’s final enumeration of the
disposition of her old silk gowns, and the tension between them was
somewhat relieved, but he went on:
“I say the psychology of this struggle is strange. I think it is like what
the old noblesse in France went through at the time of the
Revolution. They would not believe that anything was going to
happen until something had happened. Two years ago this county
was like a Garden of Eden for peace, wasn’t it?”
“Yes,” replied Mrs. Charteris, “a great deal too much like the Garden
of Eden. I was the only person in the county who ever quarreled with
anybody, and nobody would ever quarrel with me with the spirit and
energy I should have liked. We talked and thought of nothing except
the best way to make mango pickle, the new fashions from
Baltimore, and our trips to the White Sulphur Springs in summer.
Now we spend our time scraping up our old linen sheets and
pillowcases into lint for the soldiers, our looms and spinning wheels
are going like mad, and we make jokes when we sweeten our potato
coffee with honey instead of sugar. Every man in the county who can
handle a musket or saber has gone to the war.”
“Except the Rev. Mr. Brand,” said Isabey, gravely, at which Mrs.
Charteris suddenly rippled into laughter.
“My son is simply watching his chance to slip away to the instruction
camp. He would be returned, of course, by the military authorities,
because his age is known, but if he can get as far as Richmond he
can pass himself off for full eighteen. Archie Tremaine is just the
same, and Mrs. Tremaine and I know what is in those boys’ hearts.
When my boy runs away he will take his mother’s blessing with him.”