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Legal Reasoning and Political Conflict
Legal Reasoning
and Political Conflict

S E C O N D E D I T I ON

Cass R. Sunstein

1
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s
objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a
registered trademark of Oxford University Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

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© Oxford University Press 2018

First Edition published in hardback, 1996

First Edition published in paperback, 1998
Second Edition published in hardback, 2018

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or transmitted, in any form or by any means, without the prior permission in writing of
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and you must impose this same condition on any acquirer.

Library of Congress Cataloging-​in-​Publication Data

Names: Sunstein, Cass R., author.
Title: Legal reasoning and political conflict / Cass R. Sunstein.
Description: Second edition. | New York : Oxford University Press, 2018. |
Includes bibliographical references and index.
Identifiers: LCCN 2017037997 | ISBN 9780190864446 ((hardback) : alk. paper)
Subjects: LCSH: Law—Methodology. | Law—Political aspects. | Law—United States—
Methodology. | Law—Political aspects—United States.
Classification: LCC K213 .S86 2017 | DDC 340/.11—dc23
LC record available at https://lccn.loc.gov/2017037997

9 8 7 6 5 4 3 2 1
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For Rian
CONTENTS

Preface ix

Introduction: Law Amid Diversity 3

1. Reasoning and Legal Reasoning 13
2. Incompletely Theorized Agreements 35
3. Analogical Reasoning 61
4. Trimming 101
5. Understanding (and Misunderstanding) the Rule of Law 117
6. In Defense of Casuistry 139
7. Without Reasons, Without Rules 155
8. Adapting Rules, Privately and Publicly 167
9. Interpretation 185
Conclusion: Law and Politics 219

Notes 225
Index 241
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PREFACE

Here’s how Charles Dickens, the greatest novelist in the English language, con-
cluded a preface to one of his novels:

Of all my books, I like this the best. It will be easily believed that I am a fond
parent to every child of my fancy, and that no one can ever love that family
as dearly as I love them. But, like many fond parents, I have in my heart of
hearts a favourite child. And his name is
DAVID COPPERFIELD.

This is certainly not a novel, and no writer should compare himself with Dickens,
but of my books, this is the one I like the best. It is my favorite child.
Social order, peace, and security are miracles. Most people live together on
peaceable terms, notwithstanding disagreements about the most fundamental
matters, including religion, morality, and politics. Many people would like to
have more goods, money, and time than they now do, and yet they channel that
desire into productive rather than destructive directions. Some people are also
drawn to crime, including violence, but most of them refrain. When they act out,
there is an excellent chance that they will be stopped or punished.
Since World War II, there have been many upheavals, and intense political
disagreements, in liberal democracies, including the United States, the United
Kingdom, Germany, Sweden, Denmark, Ireland, and France. All the while, the
legal systems in those nations have continued to do their work. Courts have func-
tioned. Most disputes are resolved peaceably (not all, but most). People live and
work together.
Maybe they do not love each other. Maybe they do not even like each other.
But most of the time, they respect the law, and in that sense, they end up respect-
ing each other, or at least acting as if they do.
xPreface

In a way, this is deeply mysterious. Throughout human history, human beings

have often been governed by force rather than law. The transition to the rule of
law is not easy to explain (though we can tell good tales). Of course law depends
on force, at least in important respects. It also depends on norms, which lead
people to obey the law even when they need not fear coercion.1 But whatever its
origins, law offers the foundation for security, order, and peace, and also freedom
and a form of equality, among many millions of people all over the globe. Amidst
serious trouble, including poverty and even desperation, that is something to
celebrate.

A PUZZLE
Within legal systems, lawyers and judges engage in something called “legal rea-
soning.” But what is that?
For over twenty years, I taught at the University of Chicago Law School, and
a good friend of mine, the sociologist Hans Zeisel, was deeply puzzled by that
question. He remarked, with amusement, that he often heard lawyers and judges
arguing about whether the Supreme Court had got an issue “right.” He won-
dered: What on earth are they arguing about? Zeisel could understand arguments
about the facts, but these were not factual disputes. What does it even mean to
say that a court was “right”?
Understanding legal reasoning is important not only for lawyers and law stu-
dents, but also for ordinary citizens thinking about the nature and place of law,
and courts of law, in society. In nearly every nation, legal reasoning seems impen-
etrable, mysterious, baroque. Sometimes it does not seem to be a form of reason-
ing at all. In this book I try to reduce some of the mystery. As we will see, legal
reasoning is far easier to understand if we attend to the basic methods and goals
of lawyers and judges: creating, using, and modifying rules; using standards and
presumptions; thinking with analogies; adopting particular practices of interpre-
tation; and allocating authority to certain people and certain institutions. Much
of this book is designed to attend to these methods and goals, and to explain how
they produce legal outcomes.
In describing legal reasoning, I aim to focus attention on the most distinctive
characteristic of the judge’s job: to decide concrete controversies involving partic-
ular people and particular facts. The judge is not likely to express broad views on
the great issues of the day, at least if those views do not contribute to the particu-
lar outcome. Ordinarily, courts are reluctant to traffic in abstractions. Participants
in law are attuned to the fact that good people are divided on basic principles.
They try to resolve cases without taking sides on large-​scale social controversies.
For similar reasons, judges—​and here we can speak too of others who
design legal requirements, including legislators, administrators, and ordinary
Preface xi

citizens—​have a complex and ambivalent attitude toward rules. Judges under-

stand that rules help people to plan their affairs. They know that rules can con-
strain official arbitrariness, discrimination, and caprice. Certainly they do not
oppose rules as a general matter. Of course people engaged in legal reasoning
have no rule against rules. They may even love rules.
But judges know that rules may misfire, precisely because they are too crude
and too rigid. They can go badly wrong when applied to concrete cases not antici-
pated when the rule was set down. Does a 65-​mile-​per-​hour speed limit ban an
ambulance from rushing to the hospital, or a police officer from driving as fast as
he must to apprehend a fleeing suspect? In some cases, the general rule may be far
too general to work well; and there may lie, in these examples and in this possibil-
ity, a pervasive concern about using rules to order diverse human affairs. Much of
legal reasoning reflects this concern.
More particularly, this book offers five general ideas, all of which, I urge, are
central to the role of law in democratic societies.

INCOMPLETELY THEORIZED AGREEMENTS

The first involves incompletely theorized agreements, which occur when people
agree on something important, even though they disagree on a lot. Such agree-
ments take two principal forms.
First, people may agree on an incompletely theorized abstraction, involving
(for example) freedom of speech, due process of law, sex equality, or clean air,
even when they disagree on what those abstractions should mean in practice.
Constitution-​making, and lawmaking in general, are often possible as a result.
The specification of the abstraction can produce a lot of intense thinking and
serious controversy. That can be difficult but also immensely productive, as par-
ticipants in the legal system, influenced by the society in which they live, move in
fresh directions. (Consider the movement for same-​sex marriage.)
Second, people may agree on specific outcomes, even when they disagree
about the fundamental values that account for them. These, then, are incom-
pletely theorized agreements on particular results, which are (I suggest) much
of the stuff of law. In mundane cases, lawyers and judges can agree that Jones has
breached a contract, that Smith has committed a tort, that Wilson has committed
a crime, and that Young has violated a neighbor’s property rights, without having
anything like a theoretical account of the underlying areas of law. Even in far less
mundane cases, involving the protection of political dissent or the right to vote,
people who lack any kind of theoretical account, or who differ greatly on the best
account, can agree on what the law requires.
Incompletely theorized agreements have large virtues. They enable people to
live together. They provide a kind of social glue. They also allow the legal system
xiiPreface

to embed a principle of mutual respect. It isn’t very nice to attack people’s deep-
est commitments when there is no need to do that. Incompletely theorized
agreements say: you can believe as you do, and I can believe as I do, and we can
respect one another and live together on agreeable terms, even if our beliefs do
not converge.

MINIMALISM
Those who favor incompletely theorized agreements embrace a form of judicial
minimalism. That means that judges tend to prefer rulings that are shallow rather
than deep, and narrow rather than wide.
In a personal relationship, most people prefer depth to shallowness. You prob-
ably will not seek out a romantic partner who is shallow (at least if you want to
make a long-​term go of it). But in law, minimalists believe in shallow rulings, on
the ground that they do not require anyone to make a deep theoretical commit-
ment. Minimalists also believe in narrowness rather than width, in the sense that
they want judges, and legal reasoners to focus on particular controversies, rather
than on a whole host of them. They might strike down a particular exercise of
authority by the president of the United States, without saying a lot about similar
or adjacent problems, and without committing the nation to a general view about
the authority of the president of the United States. They might say that a partic-
ular restriction on commercial advertising is acceptable, without saying that all
or most restrictions on commercial advertising are acceptable. Minimalists like
small steps.
Legal systems often do best when judges have a presumption in favor of nar-
row rulings, because they avoid a lot of trouble. Sometimes silence is golden, and
minimalists hope to spin gold. Sometimes it is best to leave things undecided. Of
course these ideas have their limits. A committed minimalist could not embrace
minimalism all of the time; that would not exactly be minimalist. (Or would it?)
Depth and width have their places. But as we shall see, most judges tend to be
drawn to minimalism and for good reasons.

TRIMMING
As a category of thinkers, trimmers have been pretty well lost to history; some
historians are not sure that they ever existed. Nonetheless, I will emphasize the
enduring importance of trimming—​understood not as an effort to leave things
undecided, but instead to accommodate, and to take on board, the commitments
that diverse people most care about, or that represent their defining beliefs.
In law, trimmers are the best listeners. They look at competing claims—​
about freedom of speech, about abortion, about sex, race, and the power of
Preface xiii

the president. They seek to respect, rather than to repudiate, the strongest
convictions of those who disagree with one another. In democratic societies,
I suggest, trimming plays a central role, especially in law. Some of the great-
est judges are trimmers. They are particularly good at managing conflict along
political lines.

THE RULE OF LAW

Some people associate the rule of law with all sorts of things—​free markets, pri-
vate property, liberty, and equality. I suggest instead that the rule of law should
be seen as a limited concept, and that it must be separated from all those things.
In brief, the rule of law requires (1) that laws be clear, general, prospective, and
transparent; (2) that they operate in the world as they do on the books; and
(3) that people should have a right to a hearing before an independent tribunal,
to argue that the rule of law has been violated.
So understood, the rule of law can coexist with terrible rules of law—​as in,
for example, a 90 percent income tax, a prohibition on certain religious prac-
tices, and a requirement that everyone must do exercises at 5 a.m. every morning.
Governments can respect the rule of law without respecting free markets, private
property, liberty, or equality. Nonetheless, the idea of the rule of law does operate
as constraint on many actions of authoritarian governments. One of the defining
features of such governments is that they fail to comply with the requirements of
the rule of law. And even in democratic nations, the idea of the rule of law oper-
ates as an objection to widespread practices. In the United States and elsewhere,
it is not always respected. It should be.

RULES OR NO RULES? THE COSTS OF DECISIONS

AND THE COSTS OF ERRORS
Lawyers and judges often distinguish between rules and standards. A rule
attempts to resolve all cases in advance. Consider a 65-​mile-​per-​hour speed limit,
or a flat ban on smoking in airplanes. By contrast, a standard requires people to
fill in its content at the point of application. Consider a requirement that people
drive “reasonably and prudently,” or that occupational safety and health stand­
ards be imposed “to the extent feasible.”
The legal system is often forced to decide between rules and standards (or
some other kind of rulelessness). The best way to choose between them, I sug-
gest, is to ask about the costs of decisions and the costs of errors. I am aware that
this formulation is awfully dry. Nonetheless, it provides a humble framework that
helps clarify countless puzzles. In ordinary life, we use that framework every day.
The same is true in law.
xivPreface

For example, a simple rule might make decisions pretty mechanical: “every
foreigner who commits a crime will be deported.” Simple rules reduce the costs
of decisions. But such rules might also produce numerous errors, and they might
be pretty terrible—​as, for example, when foreigners commit traffic offenses that
are crimes, but that should not, on reflection, be a basis for deportation. Rules are
often crude, which means that they will produce high error costs. On the other
hand, there are risks to standards, too, especially if we cannot trust those who are
applying them. With standards, decision costs sometimes skyrocket, and if those
who are applying standards cannot be trusted, error costs might be high as well.
At multiple points, my discussion of rules veers toward the view that case-​by-​
case decisions, or the old art of casuistry, is the best way to go. But that would be
an absurd position, and the argument always pulls back. The case for rule-​bound
justice is too insistent in too many contexts. There is much progress to be made,
I think, in identifying those contexts. As machine learning improves, and algo-
rithms get better, legal systems might be able to rely on complex rules, which are
increasingly likely to prove highly accurate.

HUMILITY AND GLORIOUS MOMENTS

A good deal of my discussion is descriptive, but I attempt as well to offer some
arguments of my own about the limits of both theories and rules. These arguments
may go against the grain, at least in the United States, and perhaps more generally.
Since the 1950s, many Americans, and not a few non-​Americans, have been
greatly stirred by the opinions of the Warren Court, especially in the area of race
relations, where the Court is often thought to have revolutionized American
society. Many people think that the Supreme Court of the United States is the
major “forum of principle” in American government. Many people think that the
Court’s basic job is to describe and elaborate the best and most abstract national
commitments, including the defining ideals of liberty and equality. American
thought in this vein has had a large international influence. We are also in the
midst of a period of enormous enthusiasm for rule-​bound justice. The rule of law
is often thought to require firm rules laid down in advance.
There is much truth in these conventional views. An important place should be
found for high-​level, abstract thinking in democratic deliberation; consider the
work of James Madison, Abraham Lincoln, Franklin Roosevelt, or Martin Luther
King Jr. Some of the most riveting and even glorious moments in any nation’s
legal system come when a high court recognizes an abstract principle involving,
for example, human liberty or equality. Consider the American Supreme Court’s
invalidation of racial segregation, or its announcement that sex discrimination is
usually unacceptable in a nation committed to the equal protection of the laws.
Certainly rules deserve a large and honored place in any system of law.
Preface xv

But I do mean to suggest that those engaged in legal reasoning are keenly aware
that the most ambitious thinking can go wrong, that rules are sometimes not fea-
sible or desirable, and that the most important political judgments come not
from courts, but instead from democratic arenas. Even more, I mean to insist on
the important virtues of the law’s distinctive approach to the problem of social
heterogeneity and disagreement: agreements on results and on low-​level princi-
ples amid confusion or disagreement on large-​scale theories.
With these claims I hope, of course, to make a contribution to debates about
the nature of law and about the possibility and character of legal reasoning. In the
process I hope to describe how people who disagree on basic principle might find
a way to live together harmoniously and with mutual respect. I am aiming also to
offer a general introduction to the study of law and legal thinking. The introduc-
tion is designed especially for people who want to know what the enterprise of
law is all about, whether or not they are actually embarking on the formal study
of law. To this end I have avoided technical terms and assumed no prior knowl-
edge of law. As we will see, the distinctive concerns and tools of the law are by no
means limited to law.

This first edition of this book grew out of the 1994 Tanner Lectures in Human
Values, delivered at Harvard University in November 1994. I was greatly honored
and also quite terrified by that occasion. I remain grateful to my audiences at Harvard
for their extraordinary graciousness and for their probing comments and questions.
Of the many people who offered help in connection with the lectures, I single
out for special thanks my commentators Jean Hampton and Jeremy Waldron, and
also Joshua Cohen, Stephen Holmes, Christine Korsgaard, Martha Minow, John
Rawls, Joseph Raz, Tim Scanlon, and Amartya Sen. (Over twenty years later, I am
humbled and astonished by that list.) I also drew on some material here for the 1995
Wesson Lectures on Democracy at Stanford University, where I received many
helpful suggestions. Susan Moller Okin, Kathleen Sullivan, and John Ferejohn
offered especially valuable thoughts and criticisms in connection with the lectures.
In spite of all that help, I managed to make plenty of serious mistakes. In the
intervening decades, I have changed my mind on some important subjects, and so
this revision is quite substantial. To do it, I have drawn on the aid, challenge, and
comfort of many people. Particular thanks are due to five terrific colleagues and
friends: Jon Elster, Martha Nussbaum, Richard Posner, the late Edna Ullmann-​
Margalit, and Adrian Vermeule.
Elster, Nussbaum, and Posner greatly helped with the original manuscript,
and their extraordinary work, and countless discussions over the decades,
have made an indelible mark on my thinking. Vermeule’s insistent focus on
institutional considerations, and on the considerations at stake in interpretive
choice, have much improved the analysis here. For a period of many years,
xviPreface

I was fortunate enough to collaborate with Ullmann-​Margalit on topics at the

intersection of law and decision theory. I learned an immense amount from
her, not only on rules, norms, and presumptions, but also on the broader topic
of second-​order decisions, or decisions about decisions. Law often consists
of decisions about decisions, and her work on that topic has made this book
much better.
I am acutely aware that my discussion here does not reflect everything that
I should have learned from these colleagues and friends. But I am more grateful
than I can say for their kindness, generosity, and help.
Some parts of this book have appeared, though in much different form, in
four essays: On Analogical Reasoning, 106 Harvard Law Review 741 (1993);
Trimming, 122 Harvard Law Review 1049 (2009); Incompletely Theorized
Agreements, 108 Harvard Law Review 1733 (1995); and Problems with Rules,
86 California Law Review 953 (1995). I am grateful to the Harvard and California
Law Reviews for permission to include some previously published material here.
Legal Reasoning and Political Conflict
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We think utility, or happiness, much too complex and indefinite an end
to be sought except through the medium of various secondary ends,
concerning which there may be, and often is, agreement among persons
who differ in their ultimate standard; and about which there does in fact
prevail a much greater unanimity among thinking persons, than might
be supposed from their diametrical divergence on the great questions
of moral metaphysics. As mankind are more nearly of one nature, than
of one opinion about their own nature, they are more easily brought to
agree in their intermediate principles . . . than in their first principles. . . .
—John Stuart Mill, Bentham

One other capital imperfection [of the Common Law is] . . . the unaccom-
modatingness of its rules. . . . Hence the hardness of heart which is a sort
of endemical disease of lawyers. . . . Mischief being almost their incessant
occupation, and the greatest merits they can attain being the firmness
with which they persevere in the task of doing partial evil for the sake
of that universal good which consists in steady adherence to established
rules, a judge thus circumstanced is obliged to divest himself of that anx-
ious sensibility, which is one of the most useful as well as amiable quali-
ties of the legislator.
—Jeremy Bentham, Of Laws in General
Introduction
Law Amid Diversity

THE PROBLEM AND A SOLUTION

There is a familiar image of justice. She is a single figure. She is a goddess, emphat-
ically not a human being. She is blindfolded. She holds a scale.
In the real world, the law cannot be represented by a single figure. Legal insti-
tutions consist of many people. Courts are run by human beings, not by a god or
goddess. Judges need not be blindfolded; what they should be blind to is perhaps
the key question for law. And judges have no scale. Far from having a scale, they
must operate in the face of a particular kind of social heterogeneity: sharp and
often intractable disagreements on matters of basic principle.
Some of these disagreements are explicitly religious in character. What is the
role of religion in public spaces and in schools? Some of them involve conflicts
among religion, agnosticism, and atheism. Can or should certain sexual practices
be regulated on religious grounds? Other disagreements are not explicitly reli-
gious, but they are fundamental in the sense that they involve people’s deepest
and most defining commitments. What is the appropriate conception of liberty
and equality? How should people educate their children? Is there such a thing
as free will? Should government punish people on the basis of deterrence only,
or should it consider retribution as well? Just how fundamental is the right to
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the very latest of all declares that he has gone back to the Long
Island—as you know they call that chain of islands from South Uist
to Lewis. It is distracting!”
It was; but Keith could not think why he should have been
summoned to hear this truth.
“Why, bless my soul,” said Albemarle, as if he had read his
thoughts, “I am so prodigiously put about that I have forgotten, I
believe, to tell you, Major Windham, that you are one of the officers
whom I design to employ in my new effort.”
“My Lord!” ejaculated Keith, flushing.
“Yes, I intend to send you without delay to the neighbourhood of
Arisaig, not because I think that the young man is there at the
moment, though one report says so, but because I think it not
unlikely he may try in the end to escape from the very spot where
he landed last July.”
“Your Lordship is really too good,” stammered Keith, rather
overcome. “If the most active vigilance——”
“Yes,” cut in Albemarle, “I depend upon you to show that, Major
Windham. Your future is in your own hands, and my reputation, too.
For reasons upon which I touched the other day, it is you whom I
am sending to what I cannot but consider the most likely spot for
securing the person of the arch-rebel. The day that you bring him
back a prisoner your difference with His Royal Highness will be no
more remembered against you. And perhaps I, too,” added the Earl
with a sigh, “shall be able to leave this most distasteful country.”
“I assure your Lordship,” said Keith with a beating heart, “that
failure shall not be due to any want of exertion on my part. Your
generous selection of me for this expedition overwhelms me with
gratitude, and whether I secure the prize or no I shall be your
Lordship’s lifelong debtor for the opportunity.”
Lord Albemarle nodded, pleased as one who knows that he
confers a benefit. “You will march at daybreak with a hundred men.
I do not say that you are to station yourself exclusively at this Loch
nan—on my soul, I cannot pronounce its outlandish name. Dispose
your men as you think best. My secretary is preparing a few notes
for your guidance. The devil of it is, however,” confessed the
harassed commander in a further burst of confidence, “that these
informations, when one receives them, are always a se’nnight or two
out of date.” And, after adding a few more recommendations as to
Keith’s conduct, he said kindly, “Now go and get some sleep,
Windham—and good luck to your endeavours!”
Keith went out as one who walks on air. A chance at last—the
greatest, if only he could seize it! So the day which had taken from
him something which he felt that he had never really possessed had
brought him . . . no, not compensation for the loss, for that,
perhaps, he could never have, but opportunity to do more than
purge his disgrace—to make himself the most envied man in the
three kingdoms.
 V
THE HERON’S FLIGHT IS ENDED
“Hereafter, in a better world than this,
I shall desire more love and knowledge of you.”
—Shakespeare.
 CHAPTER I

It was fortunate for Ewen that the sorrel horse on which he was tied
had easy paces, and that the troopers did not ride fast; fortunate too
that his arms had been bound to his sides and not behind his back,
as had at first been proposed when, limping badly, and shielding his
eyes against the unaccustomed daylight, he was brought out into
the courtyard of the fort to be mounted. For by midday so many
hours in the saddle, under a July sun, were making heavy demands
on a man come straight from close confinement and not long
recovered of a severe wound.
But from Ewen’s spirit a much heavier toll was being exacted; not
by the prospect of the death which was in all likelihood awaiting him,
not even by the remembrance of his lost Alison, but by the pain
which was actually tearing at him now, this taking leave of what he
loved better than life, the lakes and mountains of his home. This was
the real death, and he kept his lips locked lest he should cry out at
its sharpness.
The picture which had been tormenting Keith Windham he could
look at without undue shrinking; or rather, he did not trouble to look
at it any more now. Like the man who had saved him, he could not
avoid the thought that Guthrie’s musket balls had been more
merciful, but the choice had not lain in his hands; and for the last
two months it had been more important to try to keep his
equanimity day after day in the cold and darkness of his prison than
to think what he should do or feel when he came to stand in the
hangman’s cart. And the parting with Alison was over; and because
he had known that the kiss in the cabin of the brig might be their
last, it had held the solemnity which had enwrapped their hurried
marriage and the bridal night whose memory was so holy to him.
Alison had been his, though for so brief a space; and one day, as he
firmly believed, they would meet again. But Beinn Tigh . . . would he
ever see again, in that world, his beloved sentinel of the stars?
 Ever since its peak had appeared, all flushed by the morning sun,
as they began to ride by Loch Oich, he had kept his eyes hungrily
upon it, praying that the horses might go slower, or that one might
cast a shoe; watching it like a lover as it revealed more of its
shapeliness and dominated the shoulder, between it and the loch,
behind which, as they went farther, it would inevitably sink. And
Loch na h-Iolaire, his loch, away behind there, invisible, secluded by
its own mountains! If only he could get free of these cords, swim the
water between, climb those intervening miles of scree and heather,
and see the Eagle’s Lake once more! No, never again; neither in this
world nor the next. For Loch na h-Iolaire was not like Alison and
him; it had not a soul free of time and space. Loch na h-Iolaire
existed over there, only there, on that one spot of earth, and in all
the fields of heaven there would be no lake so lovely, and in heaven
the grey mists would never swoop down on one who ambushed the
deer.
At Laggan-ach-drum they had halted and rested and eaten. It
was Glengarry’s country, yet on the border of the Cameron, and
Ardroy was known there; but in the burnt and ravaged clachan there
seemed to be no man left, and no risk of a rescue. The troopers of
Kingston’s Horse had shown themselves rough but not unkindly, and
the sergeant, probably thinking that unless they gave the prisoner
some attention they would hardly get him to Fort William at the end
of the day, had him unfastened and taken off the sorrel and set
down amongst them by the roadside with food and drink. But they
were very careful of him, tying his ankles together, and putting a
cord from one wrist to the belt of the next man. And Ewen had
eaten and drunk in silence, looking at the sunlit desolation. This was
what had been done in the Glen . . . done in all the countryside . . .
A young girl had passed once or twice to a half-burnt croft
carrying a bucket of water, and presently the sergeant, wanting
some for the horses, called to ask where the water came from, since
here they were no longer by a lake side. Setting down the heavy
bucket, she came and stood before him, looking on the troopers
with eyes like coals, and only once at their prisoner. (But the
softness of evening was in them then.) The sergeant, without
harshness, put his question, but the girl shook her head, and Ewen
knew that she had not the English. Already he had seen a sight that
set his heart beating, for as she stooped to put down the bucket he
had caught a glimpse of the black handle of a sgian dubh in her
bosom.
“Shall I ask her for you?” he suggested to the sergeant, and,
hardly waiting for the answer, he spoke rapidly to her in Gaelic,
putting the question about water indeed, but adding at the end of it,
“Try to give me your knife when I am on the horse again—if you
have another for yourself!”
The girl gave him a glance of comprehension, and turned away
to show where to fetch the water; and the sergeant had no inkling
that another question besides his had been put and answered. He
even threw a word of thanks to the interpreter.
But while they were tying Ewen on again the girl came among
them, as if curiosity had brought her to see the sight, and, heedless
of the jests which she did not understand, slipped nearer and nearer
among the horses until she seemed to be jostled against the sorrel’s
shoulder. And Ewen felt the little knife, warm from its hiding-place,
slide into his right stocking; it was only with an effort that he kept
his eyes averted and seemed unaware of her presence. But he
turned his head as they rode away, and saw her standing at gaze
with her hands joined, as though she were praying.
That was an hour agone and more. How he should ever get at,
much less use, the blade against his leg he had no idea, seeing that
his arms were immovably pinioned, but to know it there made a
world of difference. His thoughts reverted to Major Windham, to that
interview yesterday. They might have been friends had Fate willed it
otherwise; indeed he could not but think of him already as a friend,
and with wonder at what he had done for him. But why had Angus’s
heron brought them together to so little purpose, to meet, and
meet, and then to part for ever, as they had met at first, ‘by the side
of water’—Loch Oich and Loch Ness? Yet he owed his life to one of
those encounters; there was no possible doubt of that. But it was
still a mystery to him why the Englishman should have cared so
much for his fate as to wreck his own career over it. He had really
behaved to Loudoun and (as far as he could make out) to
Cumberland—all honour to him for it—as if he were fey. And he had
seemed at the outset of their acquaintance of so mocking a temper,
so lightly contemptuous as scarcely even to be hostile. One saw him
with different eyes now.
But Keith Windham was swept from his thoughts again, as he
realised afresh that he was going for the last time along Loch Lochy
side. It was bright pain to look at it, but Ewen looked greedily, trying
to burn those high green slopes for ever on his memory, to be
imaged there as long as that memory itself was undissolved. There
was the steep corrie and the wall shutting out his home. What
though the house of Ardroy were ashes now, like Achnacarry and a
score of others, there were things the marauders could not touch,
things dearer even than the old house—the sweeps of fern and
heather, the hundred little burns sliding and tinkling among stones
and mosses, the dark pine-trees, the birches stepping delicately
down the torrent side, the mist and the wind, the very mountain air
itself. But these, though they would remain, were not for him any
more.
And then Ewen bit his lip hard, for, to his horror, his eyes had
begun to fill, and, since he could not move a hand, all that was left
was to bow his head and pray desperately that the troopers on
either side might not observe his weakness. But they were just then
absorbed in heartfelt complaints at the detour which they were
obliged to make on his account, instead of setting out with the rest
of Kingston’s Horse, in two days’ time, for Edinburgh; and Ewen
quickly swallowed the salt upon his lips, thinking, ‘Since I am so little
of a man, I must fix my mind on something else.’ Yet here, in this
dear and familiar neighbourhood, he could think of nothing else but
what was before his eyes; and his eyes told him now that the
radiance of the morning was gone, and that clouds were coming up
the Glen from the south-west, from Loch Linnhe, with that rapidity
which he knew so well of old. In an hour it would very likely be
raining hard; in less, for beyond the Loch Arkaig break he could see
that it was raining . . .
 Here he was, looking just as intently at the hills as before! So he
shut his eyes, afraid lest moisture should spring into them again;
and also a little because the waters of Loch Lochy, still bright,
despite the advancing clouds, were beginning queerly to dazzle him.
And when his eyes were shut he realised with increasing clearness
that physically too he was nearing the boundary-line of endurance.
He had wondered himself how he should ever accomplish the thirty-
mile ride, but the problem had not troubled him much, and the
untying and rest at Laggan had been a relief. Now—and they still
had a long way to go—it was astonishing how this sea of faintness
seemed to be gaining upon him. He reopened his eyes as he felt
himself give a great lurch in the saddle.
“Hold up!” said the trooper who had the reins. “Were ye asleep?”
Ewen shook his head. But what curious specks were floating over
the darkening landscape! He fixed his eyes on his horse’s ears; but
once or twice the whole head of the animal disappeared from his
sight altogether; and the second time that this phenomenon
occurred he felt a grip on his arm, and found the soldier on the
other side looking at him curiously. However, the man released him,
saying nothing, and Ewen, mute also, tried to straighten himself in
the saddle, and looked ahead in the direction of Ben Nevis, since
perhaps it was a mistake to look at anything close at hand. The
mountain’s top was veiled. The last time that he had seen it . . . with
Lochiel . . .
But that memory had poison in it now. Oh, to have speech with
Lochiel once before he went hence! Ewen set his teeth, as waves of
faintness and of mental pain broke on him together. If he could only
say to Donald . . .
And there followed on that, surprisingly, a period in which he
thought he was speaking to Lochiel; but it must have been by some
waterfall—the waterfall near the hiding-place, perhaps—and through
the noise of the rushing water he could not make Lochiel hear what
he was saying to him. He tried and tried . . . Then all at once
someone was holding him round the body, and a voice called out,
miles away, yet close, “He was near off that time, Sergeant!”
 Ewen left the waterfall and became conscious, to his
astonishment, that they were away from Lochy and within full sight
of Ben Nevis and all his brethren. Also that the whole escort had
stopped. Landscape and horses then whirled violently round. His
head fell on a trooper’s shoulder.
“The prisoner’s swounding, Sergeant! What are we to do?”
Swearing under his breath, the sergeant brought his horse
alongside. “Shamming? No, he ain’t shamming. Here,” he brought
out something from his holster, “give him a drink of his own
Highland whisky—nasty stuff it is!”
They held up Ewen’s head and put the spirit to his lips. It revived
him a little, and he tried to say something, but he himself did not
know what it was. The sergeant eyed him doubtfully.
“I’ll tell you what,” he remarked to his men, “we’ll untie his arms
—not his feet, mind you—and maybe then he can help himself by
taking a holt of the mane.—Can ye do that?”
Ewen nodded, too sick and dizzy to realise what possibilities
would thus be put within his reach.
The dragoons unfastened the cords round his arms and body,
gave him some more spirit, rubbed his cramped arms, and in a little
while he was able to do what the sergeant suggested; and presently,
he leaning hard upon the sorrel’s crest, his fingers twined in the
mane, they were going slowly down the moorland slope towards the
Spean. Ewen felt less faint now, after the whisky and the release of
his arms; the fine misty rain which had now set in was refreshing,
too, so, although the landscape showed a disposition to swim at
times, he could certainly keep in the saddle—indeed, how could he
fall off, he thought, with this rope passing from ankle to ankle
beneath the horse’s belly? And he began to think about High Bridge,
still unseen, which they were approaching, and of the part which it
had played in this great and ill-fated adventure—and in his own
private fortunes, too. For down there the first spark of revolt had
flashed out; down there Keith Windham had been turned back by
MacDonald of Tiendrish and his men; and because he had been
turned back, Ewen himself was alive to-day, and not mouldering by
Neil MacMartin’s side on Beinn Laoigh.
 But he was none the less on his way to death, and there was no
one to stay the redcoats from passing High Bridge now. Tiendrish,
marked for the scaffold, lay already in Edinburgh Castle; Keppoch,
his chief, slept with his broken heart among the heather on Culloden
Moor; Lochiel was a wounded outlaw with a price on his head. The
gods had taken rigorous dues from all who had been concerned in
the doings of that August day here by the Spean. Yes, strangely
enough, even from Keith Windham, who was on the other side. They
had made him pay for having dared to show compassion to those
whom they pursued. It was singular.
Unconsciously Ewen was back in the dungeon again, seeing the
Englishman’s troubled face, hearing his voice as it asked him why he
had put him in mind of the forgotten penknife . . .
And then Keith Windham’s face and voice were blotted out in an
instant by a thought which made him draw a long breath and clutch
the sorrel’s mane almost convulsively. He had something better than
a blunt penknife on his person at this very moment, and now, now
that his arms were untied, he could perhaps get it into his hand. For
the last hour he had completely forgotten the girl’s sgian in his
stocking; and indeed, until recently it might as well not have been
there. But now, if he could draw it out unobserved . . .
And then? Rags of a wild, a desperate plan began to flutter
before his eyes. And only here, by the Spean, could the plan be put
into execution, because, High Bridge once crossed, it was all open
moorland to Fort William. Only by the Spean, racing along between
its steep, thickly wooded banks, was there a chance of shelter, if one
could gain it. It was a mad scheme, and would very likely result in
his being shot dead, but, if they stopped at the little change-house
on the other side of Spean, as they surely would, he would risk that.
Better to die by a bullet than by the rope and the knife. How his
body would carry out the orders of his brain he did not know; very
ill, probably, to judge from his late experiences. Yet, as he hastily
plotted out what he would do, and every moment was carried nearer
to High Bridge, Ewen had an illusory feeling of vigour; but he knew
that he must not show it. On the contrary, his present partially
unbound condition being due to his recent only too real faintness, he
must continue to simulate what for the moment he no longer felt. If
only the faintness did not come on again in earnest!
Here was the Spean in its ravine, and here the narrow bridge
reared on its two arches, its central pier rising from a large rock in
the river-bed. They clattered over it, three abreast. The bridge was
invisible, as Ewen knew, when one was fairly up the other side,
because the approach was at so sharp an angle, and the trees so
thick. And as they went up that steep approach the trees seemed
even thicker than he remembered them. If Spean did not save him,
nothing could.
The change-house came into view above them, a little low
building by the side of the road, and for a moment the prisoner
knew an agonising doubt whether the escort were going to halt
there after all. Yes, thank God, they were! Indeed, it would have
been remarkable had they passed it.
The moment the troopers stopped it was evident how little they
considered that their prisoner needed guarding now; it was very
different from the care which they had bestowed in this particular at
Laggan. Drink was brought out; nearly all swung off their horses,
and broke into jests and laughter among themselves. Ewen’s all but
collapse of a few miles back, his real and evident exhaustion now,
served him as nothing else could have done. Realising this, he let
himself slide slowly farther over his horse’s neck as though he could
scarcely sit in the saddle at all; and in fact this manœuvre called for
but little dissimulation.
And at that point the trooper who had charge of his reins, a
young man, not so boisterous as the others, was apparently smitten
with compassion. His own half-finished chopin in his hand, he looked
up at the drooping figure. “You’d be the better of another drink, eh?
Shall I fetch you one?”
Not quite sure whether this solicitude was to his advantage,
Ewen intimated that he would be glad of a cup of water. The
dragoon finished his draught, tossed the reins to one of his fellows,
and sauntered off. But the other man was too careless or too much
occupied to catch the reins, and they swung forward below the
sorrel’s head, free. This was a piece of quite unforeseen good luck.
Ewen’s head sank right on to his horse’s crest; already his right
hand, apparently dangling helpless, had slipped the little black knife
out of his stocking; now he was able unsuspected to reach the rope
round his right ankle. . . . Five seconds, and it was cut through, and
the next instant his horse was snorting and rearing from a violent
prick with the steel. The dismounted men near scattered
involuntarily; Ewen reached forward, caught a rein, turned the
horse, and, before the startled troopers in the least realised what
was happening, was racing down the slope and had disappeared in
the thick fringe of trees about the bridge.
The sorrel was so maddened that to slip off before he reached
the bridge, as he intended, was going to be a matter of difficulty, if
not of danger. But it had to be done; he threw himself across the
saddle and did it. As he reached ground he staggered and fell,
wrenching his damaged thigh, but the horse continued its wild
career across the bridge and up the farther slope as he had
designed. Ewen had but a second or two in which to pick himself up
and lurch into the thick undergrowth of the gorge ere the first of a
stream of cursing horsemen came tearing down the slope. But, as
he hoped, having heard hoof-beats on the bridge, they all went
straight over it in pursuit of the now vanished horse, never dreaming
that it was riderless.
Once they were over Ewen cut away the trailing rope from his
other ankle, pocketed it, and started to plunge on as fast as he could
among the birch and rowan trees, the moss-covered stones and the
undergrowth of Spean side. He was fairly sure that he was invisible
from above, though not, perhaps, from the other side, if and when
the troopers returned. But the farther from the bridge the better. His
breath came in gasps, the jar of throwing himself off the horse had
caused him great pain and made him lamer than ever, and at last he
was forced to go forward on his hands and knees, dragging his
injured leg after him. But as he went he thought how hopeless it
was; how the dragoons would soon overtake the horse, or see from
a distance that he was no longer on its back, and, returning, would
search along the river bank and find him. And he could not possibly
go much farther, weak and out of condition as he was, with the
sweat pouring off him, and Spean below seeming to make a noise
much louder than its diminished summer clamour.
Thus crawling he finally came up against a huge green boulder,
and the obstacle daunted him. He would stop here . . . just round
the farther side. He dragged himself round somehow, and saw that
what he had thought to be one stone was two, leaning together. He
tried to creep into the dark hollow between them, a place like the
tomb, but it was too narrow for his breadth of shoulder. So he sank
down by it, and lay there with his cheek to the damp mould, and
wondered whether he were dying. Louder and louder roared the
Spean below, and he somehow was tossing in its stream. Then at
least he could die in Scotland after all. Best not to struggle . . . best
to think that he was in Alison’s arms. She would know how spent he
was . . . and how cold . . . The brawling of the river died away into
darkness.
 CHAPTER II

When Ewen came fully to himself again it was night, the pale
Highland summer night; he could not guess the hour. He had not
been discovered, then! He lay listening; there was no sound
anywhere save the rushing of the river below him, nothing to tell
him whether the troopers had returned or no. But now was
undoubtedly the time to quit his lair and get back over the bridge
and along the short but dangerous stretch of high road, until he
could leave it and make for the river Lochy. When he had forded
Lochy and was on the other side of the Great Glen he would be
safer.
Alas, the next few minutes implanted in him a horrible doubt
whether he would ever ford Lochy, seeing that between the
swimming head of exhaustion and the twist which he had given his
damaged leg in throwing himself off the horse he could scarcely
even stand, much less walk. And although the people up at the
change-house, almost within call were, unless they had been
removed, of a Cameron sept, he dared not risk attracting their
attention, for a double reason: soldiers, his own escort or others
from Fort William, might very well halt there; and to shelter him
would probably in any case be disastrous to the poor folk
themselves.
His prospects did not seem too bright. All his hope was that he
might feel more vigorous after a little more of this not very
comfortable rest. Huddled together on his side under the lee of the
boulder, to get what shelter he could from the soft, misty rain which
he felt rather than saw, he said a prayer and fell into the sleep of the
worn-out.
He was wakened by a strange, sharp noise above him, and the
sensation of something warm and damp passing over his face. Stiff
and bewildered, he opened his eyes and saw in the now undoubted,
though misty daylight, the author of these two phenomena, an
agitated sheepdog, of a breed unknown to him. As he raised himself
on an elbow the dog gave another excited bark, and immediately
darted away up the tree-grown bank.
So numbed and exhausted was the fugitive that it took him a few
seconds to realise that he was discovered. But by whom? Not by
soldiers, certainly; nor could that be the dog from the change-house.
He dragged himself into a sitting posture, got his back against the
boulder, pulled the little black knife, his only resource, from his
stocking, and waited.
Feet were coming down the steep bank, and soon two men could
be seen plunging through the birch and alder, shouting to each other
in an unfamiliar accent; in front of them plunged and capered the
sheepdog, with its tail held high, and Ewen heard a loud hearty
voice saying, “Clivver lass—aye, good bitch th’art indeed! See-ye,
yon’s rebel, Jan!” He reflected, “I can kill the dog, but what good
would that do me? Moreover I have no wish to.” And as the
intelligent creature came bounding right up to him, wagging a
friendly tail, and apparently proud of its accomplishment in having
found him, he held out his left hand in invitation. The dog sniffed
once, and then licked it.
“See thon!” cried the former voice. “Dang it, see Lassie so
freendly and all!”
“Yet you had best not come too near!” called Ewen threateningly.
“I am armed!” He raised his right hand.
The larger of the men, pushing through an alder bush, instantly
lifted a stout cudgel. “If thou harmst t’ bitch—— Coom here, Lassie!”
“No, I will not harm her,” said Ewen, fending off the dog’s
demonstrations with his other arm. “But call her off; I owe her no
gratitude.”
“For foindin’ thee, thou meanst,” supplied Lassie’s owner. “Aye,
thou’st the fellow that gie t’ sogers the slip yesterday; we heerd all
aboot thee oop at t’ little hoose yonder. Eh, but thou’rt a reet smart
lad!” There was genuine admiration in his tone. “’Twere smart ti hide
thee here, so near an’ all, ’stead o’ gooin’ ower t’ brig—eh, Jan?”
“Main smart,” agreed the smaller man. “Too smart fur th’
redcoats, Ah lay!”
 The smart lad, very grim in the face, and rather grey to boot, sat
there against his boulder with the sgian clutched to his breast, point
outwards, and eyed the two men with a desperate attention, as they
stood a little way higher up amid the tangle of bushes, stones and
protruding tree-roots, and looked at him. They had the appearance
of well-to-do farmers, particularly the larger, who was a
tremendously burly and powerful man with a good-tempered but
masterful expression. The smaller was of a more weazened type,
and older.
“See-thee, yoong man,” said the burly stranger suddenly, “’tis no
manner o’ use ti deny that thou’rt one of these danged Highland
rebels, seein’ we’s heerd all the tale oop yonder.”
Ewen’s breath came quickly. “But I’ll not be retaken without
resistance!”
“Who says we be gooin’ ti taake thee? Happen we’ve summut
else ti moind. Coom here, Lassie, wilt thou! Dunnot be so freendly
tiv a chap wi’ a knife in his hand!”
“I tell you the dog has nothing to fear from me,” repeated Ewen.
“See then!” And on a sudden impulse he planted the sgian in the
damp soil beside him and left it sticking there.
“Ah, that’s reet, yoong man—that’s jannock!” exclaimed the large
stranger in evident approval and relief. “Happen we can ’ev some
clack together noo. Hoo dost thou rackon ti get away fra this tod’s
den o’ thine?”
Here, quite suddenly, the little man began to giggle. “He, he!
maakes me laugh to think of it—t’ sogers chasing reet away ower t’
brig and Lord knaws wheer beyond! They nivver coom back, so t’
folk oop yonder tells.”
“Aye, a good tale to tell when we gan back ower Tyne,” agreed
the large man, shaking gently with a more subdued mirth. And as
Ewen, for his part, realised that the reference to Tyne must mean
that the strangers were English, though he could not imagine what
they were doing in Lochaber, this large one burst into a great
rumbling upheaval of laughter, causing the sheepdog to bark in
sympathy.
 “Quiet, lass!” commanded her master, making a grab at her. “Thy
new freend here has no wish for thy noise, Ah’ll lay.” He looked
straight at the fugitive sitting there. “Hadn’t thee best get thee gone,
lad, before ’tis onny loighter?” he asked.
Was the man playing with him, or was he genuinely friendly?
Ewen’s heart gave a great bound. A momentary mist passed before
his eyes. When it cleared the large man was stooping over him, a
bottle in his hand.
“Thoo’rt nigh clemmed, lad, or ma name’s not Robert Fosdyke.
Here’s t’ stuff for thee—reet Nantes. Tak’ a good soop of it!”
The fiery spirit ran like lightning through Ewen’s cramped limbs.
“Why . . . why do you treat me so kindly?” he gasped, half stupid
between the brandy and astonishment, as he returned the bottle.
“You are English, are you not? Why do you not give me up?”
Mr. Fosdyke, who had now seated himself on a large stone near,
struck his knee with some vehemence. “Ah’ll tell thee whoy! First,
because t’ bitch here foond thee and took ti thee, and thou didna
stick yon knife o’ thine intiv her—but Ah’d ’ev driven in thy skool if
thou hadst . . . second, because thou’rt a sharp lad and a bold one,
too; and last because Ah’ve seen and heerd tell o’ things yonder at
Fort Augustus, wheer we went ti buy cattle, that Ah ’evn’t loiked at
all. No, Ah didn’t loike what Ah heerd of goings on.—Aye, and
foorthly, t’ cattle was woorth danged little when we’d gotten ’em; all
t’ best were sold awready.”
Ewen knew what cattle they would be; the one possession of
many a poor Highland home, as well as the herds of the gentry. He
remembered now having heard that some of the many thousands
collected from Lochaber and Badenoch were sold to English and
Lowland dealers. Apparently, then, these men were on their way
south through Glencoe and Breadalbane with such as they had
bought, and now he knew why once or twice during this
conversation he had fancied that he heard sounds of lowing at no
great distance.
“I wonder if mine are all gone!” he said half to himself.
“Thou hadst cattle of thy own, lad?” enquired Mr. Fosdyke. “If
thou canst see onny o’ thine among oors oop there thou shalt have
them back again—and that’s none so generous as thou medst think,
for there’s some Ah’d as soon give away as drive all t’ waay ower t’
Border.”
Ewen gave a weak laugh. “What should I do with cattle now? I
cannot get home myself, much less drive cattle there.”
“And whoy canst thou not get home, when thou’st put summut in
thy belly?” asked the Yorkshireman.
Ewen told him why he should find it difficult, if not impossible,
and why he dared not go to the change-house either. The farmer
pronounced that he was right in the latter course, and then made
the astonishing suggestion that ‘Jan Prescott here’ should run up to
the house and bring the fugitive something to eat and drink.
“Dunnot say who ’tis for, Jan; say Ah’ve a moind ti eat by river, if
thou loikes.” And while Jan, with amazing docility, removed the birch
twig which he had been twisting between his lips and betook himself
up the bank, his companion questioned Ewen further as to the
direction of his home.
“T’ other soide of t’ other river? T’ other river’s nobbut a couple
of moiles away . . . Tell thee what, lad,” he exclaimed, slapping
himself once more, “Ah’ll tak thee as far as t’ river on one of t’ nags.
Happen thou canst sit a horse still?”
“Take me there!” Ewen could only stare in amazement.
“Aye. And when thou’st gotten to this river o’ thine, hoo medst
thou cross it; happen there’s brig, or ferry?”
“No, there is a ford. The ford by which we all . . .” His voice died
away. How long ago it seemed, that elated crossing last August after
Glenfinnan!
“And when thou’rt on t’ other soide?” pursued Mr. Fosdyke.
“I’ll reach my home somehow, if I have to crawl there.”
“And who’lt thou foind theer—thy parents?”
“My aunt, who brought me up. My parents are dead.”
“No wife nor childer?”
“My wife is in France.” And why he added, “We were only married
two days before parting,” Ewen did not know.
“Poor lad,” said Mr. Fosdyke. “Whoy didstna stop at home loike a
wise man?”
 Ewen, his head resting against the boulder, said, “That I could
not do,” his eyes meanwhile fixed on the form of Mr. Jan Prescott,
already descending the slope with a tankard in his hand and two
large bannocks clasped to his person. Mr. Fosdyke turned and hailed
him, and in another moment Ewen had started upon the bannocks,
finding that he was famished, having tasted nothing solid since the
halt at Laggan yesterday morning. And while he ate Mr. Robert
Fosdyke unfolded his intention to his companion, who raised no
objection, except to remark, “Happen thou’lt meet redcoats on t’
road.”
“Ah shall say t’ lad’s a drover o’ mine, then.”
“In yon petticoat thing?” queried Mr. Prescott, pointing at Ewen’s
kilt.
“He shall have thy great-coat ti cover him oop.”
“Ah dunno hoo he’ll get intiv it, then,” returned Mr. Prescott. “See
ye, Robert, Ah’d sooner he had a horse blanket than split ma coat.”
“He can have t’ loan of ma coat then,” said Mr. Fosdyke. “He’ll not
split that.—Beasts all reet oop there?” he enquired.
“As reet as ivver they’ll be,” returned his partner with gloom.
“Ah knawed as we peed too mooch for them,” growled Mr.
Fosdyke in a voice like subterranean thunder. “Goviment notice saays
—well, nivver moind what, but ’twere main different fra what t’ cattle
were loike. Hooivver, Ah weren’t comin’ all the way fra t’ other soide
o’ York for nowt.”
“York?” asked Ewen with his mouth full, since this information
seemed addressed to him. “You come from York, sir.”
“Fra near by. Dost thou knaw the toon?”
“No,” said Ewen.
“T’ sogers werena takin’ thee there yistiday?”
“It was Carlisle that I was going to in the end.”
“Ah!” said Mr. Fosdyke comprehendingly. “But some poor devils
are setting oot for York, too, we hear. Thou’s best coom along wi’
us.” And giving his great laugh he began to embroider his pleasantry.
“Thou doesna loike the notion? Whoy not? York’s a foine toon, Ah
can tell thee, and more gates tiv it for setting rebels’ heads on than
Carlisle. Ah lay we have a row o’ them ower Micklegate Bar come
Christmas. And thou’st not wishful ti add thine?”
Ewen shook the imperilled head in question with a smile.
“No,” agreed Mr. Fosdyke, “best keep it ti lay on t’ pillow besoide
they wife’s. If she’s in France, then thou’rt not a poor man, eh?”
“I am what you call a gentleman,” replied Ewen, “though I expect
that I am poor enough now.”
“If thou’rt a gentleman,” pronounced Mr. Fosdyke, “then thou
dost reet ti keep away fra York and Carlisle, aye, and fra Lunnon,
too.—Noo, Jan, we’ll gan and see aboot t’ nags. Thou medst bide
here, lad. Come on, Lassie.”
With tramplings and cracklings they were gone, dog and all, and,
but for the yet unfinished food and drink, which were putting new
life into Ewen, the whole encounter might have been a dream. As he
waited there for their return he wondered whether Alison’s prayers
had sent these good angels, which, to his simple and straightforward
faith, seemed quite likely.
Presently the larger of the angels came back and helped him
along the slope to the scene of his exploit at the bridge. Here was
the satellite Jan with two stout nags, a flea-bitten grey and a black.
A long and ample coat (certainly not Mr. Prescott’s) was provided for
the Jacobite. “If thou wert clothed like a Christian there’d ha’ been
no need for this,” said Mr. Fosdyke with frankness as he helped him
into it; and then, the difficulty of getting into the saddle surmounted,
Ewen found himself half incredulously riding behind the broad back
of his benefactor over the brawling Spean, in his hand a stout cattle
goad to assist his steps when he should be on his feet again.
In the two miles before they came to the river Lochy they had
the luck to meet no one. There the clouds hung so low that the
other side of the Great Glen was scarcely visible. When they came to
the ford Ewen pulled up and made to dismount. But Mr. Fosdyke
caught him by the arm. “Nay, if thou canst scarce walk on land, Ah
doot thou’ll walk thruff water! Daisy will tak thee ower. Coom on,
mare.”
The two horses splashed placidly through in the mist. On the
other side Ewen struggled off, and got out of the coat.
 “I cannot possibly recompense you, Mr. Fosdyke,” he began,
handing it up to him.
“If thou offer me money,” said Mr. Fosdyke threateningly,
“danged if Ah don’t tak thee back ti wheer Ah foond thee!”
“You can be reassured,” said Ewen, smiling, “for I have none. But
in any case, money does not pass between gentlemen for a service
like this. I only pray God that you will not suffer for it.”
“Ah’d loike ti see the mon that’s going ti mak me,” was the
Yorkshireman’s reply. “And Ah feel noo as Ah’ve got even wi’
Goviment in t’ matter of t’ cattle,” he added with immense
satisfaction. “And thou think’st me a gentleman? Well, Ah’m nobbut
a farmer, but Ah’m mooch obliged ti thee for the compliment.” He
shook Ewen’s hand. “Good luck ti thee, ma lad. . . . If thou lived a
few hoondred moiles nearer, danged if Ah wouldna gie thee a pup o’
Lassie’s—but thou’rt ower far away, ower far!” He chuckled, caught
the bridle of the grey, and the eight hoofs could be heard splashing
back through the ford. Then silence settled down again, silence, and
the soft folds of mist; and after a moment Ewen, leaning heavily on
his goad, began his difficult pilgrimage.

Twenty-four hours later, very nearly at the end of his tether, he

was hobbling slowly along the last mile of that distance which
ordinarily he could have covered between one meal and the next. So
slow and painful had been his progress, and with such frequent
halts, that it had been late afternoon before he reached Loch Arkaig.
And there he had seen the pitiful charred remains left by vengeance
of Lochiel’s house of Achnacarry, almost as dear to him as his own.
In that neighbourhood above all others he had feared to come on
soldiers, but the Campbells in Government pay who had burnt and
ravaged here had long ago done their work, and the place was
deserted; there was nothing to guard now, and none against whom
to hold it. A poor Cameron woman, whose husband had been shot in
cold blood as he was working in his little field, had given Ewen
shelter for the night. She told him, what he expected to hear, that
the house of Ardroy had been burnt down by a detachment of
redcoats; this she knew because the soldiers had returned that way,
and she had heard them boasting how they had left the place in
flames. Of Miss Cameron’s fate she knew nothing; but then she
never saw anyone now that her man was gone; the burnt
countryside was nearly depopulated. That Ewen had seen for himself
already. And she said with tears, as, thanking her from his soul for
her hospitality, he turned away from her door in the morning grey,
“Oh Mac ’ic Ailein, for the Chief and the Chief’s kin I’d give the last
rag, the last mouthful that’s left to me—but I’m asking God why He
ever let Prince Tearlach come to Scotland.” And Ewen had no heart
to find an answer.
Against his will the question had haunted him as he hobbled on.
Just a year ago he had had the news of that coming; yes, just a year
ago he had sat with Alison by the loch and been happy—too happy
perhaps. So his father’s house was gone! But all the more was his
mind set to reach Ardroy, to find out what had befallen those who
had remained behind there: Aunt Margaret first and foremost, the
servants, old Angus and his grandchildren, the womenfolk, the
fugitives from Drumossie Moor . . . And here at last he was, going
incredibly slowly, and accompanied by a dull pain in the thigh which
by this time seemed an inseparable part of himself, but come to the
spot where, after crossing the Allt Buidhe burn, one used to discern
the chimneys of the house of Ardroy between the pines of the
avenue. Since he knew that he would never see them thus again,
Ewen did not look up, but he thought, as he crossed the burn on the
stepping-stones, nearly overbalancing from fatigue, that one thing,
at least, would be the same, for not even Cumberland could set fire
to Loch na h-Iolaire.
Then, unable for the moment to get farther, he sank down
among the welcoming heather for a rest. That, just coming into
bloom, was unchanged; ‘thou art the same and thy years shall not
fail’—the words floated into his head and out again, as he felt its
springy resistance give beneath his body. Then, half lying there,
twisting a tuft round and round the fingers of one hand for the
pleasure of feeling it again, Ewen let his eyes stray to the spot
where his father’s house and his had stood. And so strong were
habit and memory that he could see its roof and chimneys still. He
put a hand over his eyes to rub away the false sight . . . but when
he removed it the chimneys were still there, and from one there
floated a wisp of smoke. . . . Trembling, he dragged himself clumsily
to his feet.

Like a man who dreams the impossible he stood a little later

outside the entrance door of Ardroy. The whole affair was like a
dream; for fire had certainly passed upon the house, and yet it was
unharmed. The lintel, the sides of the stone porch were blackened
with smoke; the ivy was brown and shrivelled, but not even the
woodwork was injured. The house seemed occupied; the door stood
open as on fine days it was wont to do; but there was not a creature
about. Where was Aunt Marget?
Slowly Ewen went over the threshold, feeling the stone and wood
like a blind man to make sure that it was real. He could have kissed
it—his house that was not burnt after all. The sun was pouring into
the long room; there was a meal laid on the table—for Aunt
Margaret? Then where was she? The place was very silent. Perhaps
—a horrible notion—strangers held Ardroy now, enemies. He would
rather it were burnt. . . . But had harm befallen Aunt Margaret? He
must find her; shame on him to be thinking first of the house!
He was giddy with hunger and fatigue, but he had no thought of
approaching the table; he left the room and, holding very tightly by
the rail, went up the stairs. The door of Miss Cameron’s room was a
little ajar, so he pushed it gently open, too confused to knock.
Where, where was she?
And he stood in the doorway rooted, because, so unexpectedly,
everything in that neat, sunny room which he had known from a
child was just as he had always known it . . . even to Aunt Margaret
herself, sitting there by the window reading a chapter in her big
Bible, as she always did before breakfast. The surprise of its
usualness after his experiences and his fears almost stunned him,
and he remained there motionless, propping himself by the
doorpost.
 It was odd, however, that Aunt Marget had not heard him, for
she had not used to be deaf. The thought came to Ewen that he was
perhaps become a ghost without knowing it, and he seriously
considered the idea for a second or two. Then he took a cautious
step forward.
“Aunt Margaret!”
He was not a ghost! She heard and looked up . . . it was true
that her face was almost frightened. . . .
“I have come back!” said Ewen baldly. “May I . . . may I sit on
your bed?”
He crashed on to it rather than sat upon it, hitting his head
against the post at the bottom, since all at once he could not see
very well.
But Aunt Margaret did not scold him; in fact he perceived, after a
little, that she was crying as she sat beside him, and attempting, as
if he were a child again, to kiss his head where he had struck it. “Oh,
Ewen, my boy—my darling, darling boy!”

“Then did that poor woman dream that the house was burnt
down?” asked Ewen some quarter of an hour later, gazing at Miss
Cameron in perplexity, as she planted before him, ensconced as he
was in the easy-chair in her bedroom, the last components of a large
repast. For allow him to descend and eat downstairs she would not;
indeed, after the first questions and emotions were over, she was for
hustling him up to the attics and hiding him there. But, Ewen having
announced with great firmness that he was too lame to climb a stair
that was little better than a ladder, she compromised on her
bedchamber for the moment, and, with Marsali’s assistance, brought
up thither the first really satisfying meal which Ewen had seen for
more than three months.
In answer to his question she now began to laugh, though her
eyes were still moist. “The house was set fire to—in a way. Eat,
Eoghain, for you look starving; and you shall hear the tale of its
escape.”
 Ewen obeyed her and was told the story. But not yet having, so it
seemed to him, the full use of his faculties, he was not quite clear
how much of the house’s immunity was due to chance, to
connivance on the part of the officer commanding the detachment
sent to burn it, and to the blandishments of Miss Cameron herself. At
any rate, after searching, though not plundering, the house of
Ardroy from top to bottom (for whom or what was not quite clear to
Ewen, since at that date he was safely a prisoner at Fort Augustus),
firing about half the crofts near, collecting what cattle they could lay
their hands on, the most having already been sent up into the folds
of the mountains, and slaying a dozen or so of Miss Cameron’s hens,
they had piled wood against the front of the house, with what
intention was obvious. It was a moment of great anguish for Miss
Cameron. But the soldiers were almost ready to march ere the fuel
was lighted. And as they were setting fire to the pine-branches and
the green ash-boughs the officer approached her and said in a low
voice, “Madam, I have carried out my instructions—and it is not my
fault if this wood is damp. That’s enough, Sergeant; ’twill burn finely.
Column, march!”
Directly they were out of sight Miss Cameron and Marsali, the
younger maidservants and the old gardener, seizing rakes and
brooms and fireirons, had pulled away the thickly smoking but as yet
harmless branches. “And then I bethought me, Ewen, that ’twould
be proper there should be as much smoke as possible, to convince
the world, and especially the redcoats, should they take a look back.
A house cannot burn, even in a spot so remote as this, without there
being some evidence of it in the air. So we made a great pile of all
that stuff at a safe distance from the house—and, my grief, the
trouble it was to get it to burn! Most of the day we tended it; and a
nasty thick reek it made, and a blaze in the end. That’s how the
house was burnt. . . . What ails you, my bairn?”
But this time Ewen was able hastily to dash the back of his hand
over his eyes. He could face her, therefore, unashamed, and
reaching out for her hand, put his lips to it in silence.
 CHAPTER III

Not infrequently in the past had Miss Margaret Cameron

animadverted on the obstinacy which lay hidden (as his temper was
hidden) under her nephew’s usually gentle speech and ways. And
now, at the greatest crisis in his life, when that life itself might hang
upon his prudence, poor Miss Cameron was faced in her young
relative with a display of this quality which really distracted her.
On that joyful and wonderful morning of his return she had
allowed him (she put it so) to retire to his own bed in his own room
‘just for the once’; the garrets, the cellar or a bothy on the braeside
being designated as his future residences. Ewen did not argue—
indeed he was not capable of it; he fell into his bed and slept for
fourteen hours without waking.
Once he was there, and so obviously in need of rest and
attention, Miss Cameron had not, of course, the heart to turn him
out; but she kept a guard of young MacMartins and others round the
house ready to give tongue in case of a surprise, and promised
herself to banish the returned fugitive to more secluded regions
directly he was able to leave his room. But when, after three days,
Ewen did so, it was not to retire into this destined seclusion; on the
contrary, he began at once to limp about, acquainting himself with
what had happened to his tenants in his absence, trying to discover
the fate of those who had never returned—among whom was
Lachlan MacMartin—visiting the nearer crofts in person, and
interviewing the inhabitants of the farther at the house. Presently, he
said, he would ‘take to the heather,’ perhaps; but, as his aunt could
see, he was yet too lame for it; and, as for the garrets or the cellar,
he was just as safe in his own bedchamber as in those
uncomfortable retreats.
Yielding on this point with what she hoped was the wisdom of
the serpent, Miss Cameron then returned to a subject much nearer
her heart: Ardroy’s departure for France or Holland, which he would
attempt, she assumed, as soon as he could hear of a likely vessel
and was fit to undertake the journey to the coast.
“France?” queried Ewen, as if he had heard this suggestion for
the first time. It was the fifth evening after his return; Miss Cameron
was sitting knitting in the long parlour, and he stretched in a chair
opposite to her. The windows were closely curtained, and young
Angus MacMartin and a still younger brother prowled delightedly in
the avenue keeping watch. “France, Aunt Margaret? What put that
into your head?”
Miss Cameron laid down her knitting. “Because you cannot stay
here, Ewen. And France is in my head rather than Holland or
Denmark because—well, surely you can guess—because your wife is
there.”
Ewen got out of his chair and limped to one of the windows. “I
am not leaving Scotland at present,” he said quietly, and drew aside
the curtain. “We need not therefore discuss the claims of one
country over another.”
“You cannot mean to stay here at Ardroy! Ewen, are you daft?
And, in the name of the Good Being, don’t show yourself at a lighted
window like that!”
“’Tis so light outside that the candles do not carry,” returned her
nephew. Indeed but for Miss Cameron’s prudence they would not
have been sitting thus curtained, but in daylight. “Moreover no one
will come to look for me here; the house has been ‘burnt,’” he went
on, using the argument he had already used half a dozen times. And
he continued to look out; at least Margaret Cameron thought that he
was looking out. In reality he had his eyes shut, that he might not
see Alison’s face—a vain device, for he saw it all the clearer.
His aunt was silent for a moment, for he had implanted in her
mind a most disturbing doubt.
“Well,” she said at last dryly, “I should think that if Major
Windham, to whom you owe so much, knew of this freak of yours,
he would regret the sacrifices which he had made in order to save
you, when this is the use to which you put your liberty.”
“I think Major Windham would understand,” said Ewen rather
shortly.
 “Understand what?”
There was no answer. “Then I doubt if the ghost of poor Neil,
who died for you, or of Lachlan, would understand!”
Ewen turned at that, but stayed where he was. “Poor Neil
indeed; may his share of Paradise be his!” he said in a softened
tone. “And Lachlan, too, if he be dead. Since you speak of my foster-
brothers, Aunt Margaret, and reproachfully, then you must know that
this is one reason why I do not wish to leave Ardroy, because it
shames me to take ship for France myself and desert those others
who cannot flee, for whose fate I am responsible. Moreover, I have
started the rebuilding of the burnt crofts, and——”
“Trust a man to think that he is the only being who can oversee
anything practical! I wonder,” observed Miss Cameron, “how much of
rebuilding and repairs I have not ordered and supervised when you
were nothing but a small wild boy, Ewen, falling into the loch and
losing yourself on the braes above it!”
He hobbled over to her. “I know, I know. No laird ever had a
better factor than you, Aunt Margaret!”
Miss Cameron’s knitting slid to the floor. “Had! Aye, I’m getting
an old wife now, ’tis plain, that you dare not leave the reins to me
for a year or so, while you take your head out of the lion’s mouth for
a while.”
“No, no, you know that’s not my thought,” said Ewen, distressed.
“I’d leave Ardroy to you as blithely as I did a year ago—I will so
leave it . . . presently.”
“Aye, that you will do presently—but not by your own will. You’ll
go off from this door as you left Fort Augustus a week ago, tied on a
horse again, and your father’s house really in flames behind you—
and all because you will not listen to advice!”
“You make me out more obstinate than I am,” said Ewen gently.
“Your advice is excellent, Aunt Marget, but you do not know . . . all
the circumstances.”
“That can easily be remedied,” said Miss Cameron with meaning.
But to that suggestion Ewen made no reply.
Miss Cameron turned round in her chair, and then got up and
faced him. “Ewen, my dear, what is wrong? What is it that is keeping
you from getting out of the country? Surely it is not . . . that there is
something amiss between you and Alison?”
Ewen did not meet her eyes. But he shook his head. “Alison and I
——” he began, but never finished. How put into words what Alison
was to him? Moreover, that which was keeping him back did stand
between him and her—at least in his own soul. “Some day, perhaps,
I will tell you, Aunt Marget,” he said quietly. “But I’d be glad if you
would not discuss my departure just now.—You have dropped your
knitting.”
He picked it up for her, and Margaret Cameron stood quite still,
looking up uneasily at the height of him, at his brow all wrinkled
with some pain of whose nature she was quite ignorant, at the
sudden lines round his young mouth. She ended her survey with a
sigh.
“And to think that—since we cannot get a letter to her—the lassie
may be breaking her heart over there, believing that you are dead!”
Ewen took a step away, with a movement as though to ward off
a blow. Then he translated the movement into a design to snuff the
candles on the table behind him. After a moment his voice came,
unsteady and hurt: “Aunt Margaret, you are very cruel.” And his
hand must have been unsteady, too, for he snuffed the flame right
out.
“’Tis for your own good,” replied Miss Cameron, winking hard at
the engraving of King James the Third as a young man over the
mantelshelf in front of her. Ewen relighted from another the candle
he had slain, saying nothing, and with the air of one who does not
quite know what he is doing. “At least, I’m sure ’tis not for mine,”
went on Miss Cameron, and now, little given to tears as she was,
she surreptitiously applied a corner of a handkerchief to one eye.
“You cannot think that I want you to go away again . . . and leave
the house the . . . the mere shell of emptiness it is when you are not
here!”
Ewen looked round and saw the scrap of cambric. In an instant,
despite the pain it cost him, he had knelt down by her side and was
taking her hands into his, and saying how sorry he was to grieve her,