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The Life of Sir James Fitzjames Stephen, Bart., K.C.S.I. - A Judge of the High Court of Justice
by Sir Leslie Stephen
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The Cambridge of those days had merits, now more likely to be overlooked than overvalued. The course was fitted to encourage strenuous masculine industry, love of fair play, and contempt for mere showy displays of cleverness. But it must be granted that it was strangely narrow. The University was not to be despised which could turn out for successive senior wranglers from 1840 to 1843 such men as Leslie Ellis, Sir George Stokes, Professor Cayley, and Adams, the discoverer of Neptune, while the present Lord Kelvin was second wrangler and first Smith's prizeman in 1845. During the same period the great Latin scholar, Munro (1842), and H. S. Maine (1844), were among the lights of the Classical Tripos. But, outside of the two Triposes, there was no career for a man of any ability. To parody a famous phrase of Hume's, Cambridge virtually said to its pupils, 'Is this a treatise upon geometry or algebra? No. Is it, then, a treatise upon Greek or Latin grammar, or on the grammatical construction of classical authors? No. Then commit it to the flames, for it contains nothing worth your study.' Now, in both these arenas Fitzjames was comparatively feeble. He read classical books, not only at Cambridge but in later life, when he was pleased to find his scholarship equal to the task of translating. But he read them for their contents, not from any interest in the forms of language. He was without that subtlety and accuracy of mind which makes the born scholar. He was capable of blunders surprising in a man of his general ability; and every blunder takes away marks. He was still less of a mathematician. 'I disliked,' as he says himself, 'and foolishly despised the studies of the place, and did not care about accurate classical scholarship, in which I was utterly wrong. I was clumsy at calculation, though I think I have, and always have had, a good head for mathematical principles; and I utterly loathed examinations, which seem to me to make learning all but impossible.'

A letter from his friend, the Rev. H. W. Watson, second wrangler in 1850, who was a year his senior, has given me a very interesting account of impressions made at this time. The two had been together at King's College. Fitzjames's appearance at Trinity was, writes Mr. Watson, 'an epoch in my college life. A close intimacy sprung up between us, and made residence at Cambridge a totally different thing from what it had been in my first year. Your brother's wide culture, his singular force of character, his powerful but, at that time, rather unwieldy intellect, his Johnsonian brusqueness of speech and manner, mingled with a corresponding Johnsonian warmth of sympathy with and loyalty to friends in trouble or anxiety, his sturdiness in the assertion of his opinions, and the maintenance of his principles, disdaining the smallest concession for popularity's sake ... all these traits combined in the formation of an individuality which no one could know intimately and fail to be convinced that only time was wanting for the achievement of no ordinary distinction.' 'Yet,' says Mr. Watson, 'he was distanced by men immeasurably his inferiors.' Nor can this, as Mr. Watson rightly adds, be regarded as a condemnation of the system rather than of my brother. 'I attempted to prepare him in mathematics, and the well-known Dr. Scott, afterwards headmaster of Westminster, was his private tutor in classics; and we agreed in marvelling at and deploring the hopelessness of our tasks. For your brother's mind, acute and able as it was in dealing with matters of concrete human interest, seemed to lose grasp of things viewed purely in the abstract, and positively refused to work upon questions of grammatical rules and algebraical formulae.' When they were afterwards fellow-students for a short time in law, Mr. Watson remarked in Fitzjames a similar impatience of legal technicalities. He thinks that the less formal system at Oxford might have suited my brother better. At that time, however, Cambridge was only beginning to stir in its slumbers. The election of the Prince Consort to the Chancellorship in 1847 (my brother's first year of residence) had roused certain grumblings as to the probable 'Germanising' of our ancient system; and a beginning was made, under Whewell's influence, by the institution of the 'Moral Sciences' and 'Natural Sciences' Triposes in 1851. The theory was, apparently, that, if you ask questions often enough, people will learn in time to answer them. But for the present they were regarded as mere 'fancy' examinations. No rewards were attainable by success; and the ambitious undergraduates kept to the ancient paths.

I may as well dispose here of one other topic which seems appropriate to University days. Fitzjames cared nothing for the athletic sports which were so effectually popularised soon afterwards in the time of 'Tom Brown's School Days.' Athletes, indeed, cast longing eyes at his stalwart figure. One eminent oarsman persuaded my brother to take a seat in a pair-oared boat, and found that he could hardly hold his own against the strength of the neophyte. He tried to entice so promising a recruit by offers of a place in the 'Third Trinity' crew and ultimate hopes of a 'University Blue.' Fitzjames scorned the dazzling offer. I remember how Ritson, the landlord at Wastdale Head, who had wrestled with Christopher North, lamented in after years that Fitzjames had never entered the ring. He spoke in the spirit of the prize-fighter who said to Whewell, 'What a man was lost when they made you a parson!' His only taste of the kind was his hereditary love of walking. His mother incidentally observes in January 1846, that he has accomplished a walk of thirty-three miles; and in later days that was a frequent allowance. Though not a fast walker, he had immense endurance. He made several Alpine tours, and once (in 1860) he accompanied me in an ascent of the Jungfrau with a couple of guides. He was fresh from London; we had passed a night in a comfortless cave; the day was hot, and his weight made a plod through deep snow necessarily fatiguing. We reached the summit with considerable difficulty. On the descent he slipped above a certain famous bergschrund; the fall of so ponderous a body jerked me out of the icy steps, and our combined weight dragged down the guides. Happily the bergschrund was choked with snow, and we escaped with an involuntary slide. As we plodded slowly homewards, we expected that his exhaustion would cause a difficulty in reaching the inn. But by the time we got there he was, I believe, the freshest of the party. I remember another characteristic incident of the walk. He began in the most toilsome part of the climb to expound to me a project for an article in the 'Saturday Review.' I consigned that journal to a fate which I believe it has hitherto escaped. But his walks were always enjoyed as opportunities for reflection. Occasionally he took a gun or a rod, and I am told was not a bad shot. He was, however, rather inclined to complain of the appearance of a grouse as interrupting his thoughts. In sport of the gambling variety he never took the slightest interest; and when he became a judge, he shocked a Liverpool audience by asking in all simplicity, 'What is the "Grand National"?' That, I understand, is like asking a lawyer, What is a Habeas Corpus? He was never seized with the athletic or sporting mania, much as he enjoyed a long pound through pleasant scenery. In this as in some other things he came to think that his early contempt for what appeared to be childish amusements had been pushed rather to excess.

I return to Cambridge. My brother knew slightly some of the leading men of the place. The omniscient Whewell, who concealed a warm heart and genuine magnanimity under rather rough and overbearing manners, had welcomed my father very cordially to Cambridge and condescended to be polite to his son. But the gulf which divided him from an undergraduate was too wide to allow the transmission of real personal influence. Thompson, Whewell's successor in the mastership, was my brother's tutor. He is now chiefly remembered for certain shrewd epigrams; but then enjoyed a great reputation for his lectures upon Plato. My brother attended them; but from want of natural Platonism or for other reasons failed to profit by them, and thought the study was sheer waste of time. Another great Cambridge man of those days, the poetical mathematician, Leslie Ellis, was kind to my brother, who had an introduction to him probably from Spedding. Ellis was already suffering from the illness which confined him to his room at Trumpington, and prevented him from ever giving full proofs of intellectual powers, rated by all who knew him as astonishing. I may quote what Fitzjames says of one other contemporary, the senior classic of his own year: 'Lightfoot's reputation for accuracy and industry was unrivalled; but it was not generally known what a depth of humour he had or what general force of character.' Lightfoot's promotion to the Bishopric of Durham removed him, as my brother thought, from his proper position as a teacher; and he suffered 'under the general decay of all that belongs to theology.' I do not find, however, that Lightfoot had any marked influence upon Fitzjames.

The best thing that the ablest man learns at college, as somebody has said, is that there are abler men than himself. My brother became intimate with several very able men of his own age, and formed friendships which lasted for life. He met them especially in two societies, which influenced him as they have influenced many men destined to achieve eminence. The first was the 'Union.' There his oratory became famous. The 'Gruffian' and 'Giant Grim' was now known as the 'British Lion'; and became, says Mr. Watson, 'a terror to the shallow and wordy, and a merciless exposer of platitudes and shams.' Mr. Watson describes a famous scene in the October term of 1849 which may sufficiently illustrate his position. 'There was at that time at Trinity a cleverish, excitable, worthy fellow whose mind was a marvellous mixture of inconsistent opinions which he expounded with a kind of oratory as grotesque as his views.' Tradition supplies me with one of his flowers of speech. He alluded to the clergy as 'priests sitting upon their golden middens and crunching the bones of the people.' These oddities gave my brother irresistible opportunities for making fun of his opponent. 'One night his victim's powers of endurance gave way. The scene resembled the celebrated outburst of Canning when goaded by the invectives of Brougham. The man darted across the room with the obvious intention of making a physical onslaught, and then, under what impulse and with what purpose I do not know, the whole meeting suddenly flashed into a crowd of excited, wrangling boys. They leapt upon the seats, climbed upon the benches, vociferated and gesticulated against each other, heedless of the fines and threats of the bewildered President, and altogether reproduced a scene of the French revolutionary Assembly.' Mr. Llewelyn Davies was the unfortunate President on this occasion, and mentions that my brother commemorated the scene in a 'heroic ballad' which has disappeared.

From the minutes of the Society[54] 'I learn further details of this historic scene. The debate (November 27, 1849) arose upon a motion in favour of Cobden. His panegyrist made 'such violent interruptions' that a motion was made for his expulsion, but carried by an insufficient majority. Another orator then 'became unruly' and was expelled by a superabundant majority, while the original mover was fined 2l. The motion was then unanimously negatived, 'the opener not being present to reply.' From the records of other debates I learn that Fitzjames was in favour of the existing Church Establishment as against advocates of change, whether high churchmen or liberationists. He also opposed motions for extension of the suffrage, without regard to education or property, moved by Sir W. Harcourt. He agrees, however, with Harcourt in condemning the game laws. His most characteristic utterance was when the admirer of Cobden had moved that 'to all human appearance we are warranted in tracing for our own country through the dim perspective of coming time an exalted and glorious destiny.' Fitzjames moved as an amendment 'that the House, while it acknowledges the many dangers to which the country is exposed, trusts that through the help of God we may survive them.' This amendment was carried by 60 to 0.

The other society was one which has included a very remarkable number of eminent men. In my undergraduate days we used to speak with bated breath of the 'Apostles'—the accepted nickname for what was officially called the Cambridge Conversazione Society. It was founded about 1820, and had included such men as Tennyson (who, as my brother reports, had to leave the Society because he was too lazy to write an essay), the two younger Hallams, Maurice, Sterling, Charles Buller, Arthur Helps, James Spedding, Monckton Milnes, Tom Taylor, Charles Merivale, Canon Blakesley, and others whom I shall have to mention. The existence of a society intended to cultivate the freest discussion of all the great topics excited some suspicion when, about 1834, there was a talk of abolishing tests. It was then warmly defended by Thirlwall, the historian, who said that many of its members had become ornaments of the Church.[55]

But the very existence of this body was scarcely known to the University at large; and its members held reticence to be a point of honour. You might be aware that your most intimate friend belonged to it: you had dimly inferred the fact from his familiarity with certain celebrities, and from discovering that upon Saturday evenings he was always mysteriously engaged. But he never mentioned his dignity; any more than at the same period a Warrington would confess that he was a contributor to the leading journals of the day. The members were on the look-out for any indications of intellectual originality, academical or otherwise, and specially contemptuous of humbug, cant, and the qualities of the 'windbag' in general. To be elected, therefore, was virtually to receive a certificate from some of your cleverest contemporaries that they regarded you as likely to be in future an eminent man. The judgment so passed was perhaps as significant as that implied by University honours, and a very large proportion of the apostles have justified the anticipations of their fellows.

My brother owed his election at an unusually early period of his career to one of the most important friendships of his life. In the summer vacation of 1845 F. W. Gibbs was staying at Filey, reading for the Trinity Fellowship, which he obtained in the following October. Fitzjames joined him, and there met Henry Sumner Maine, who had recently (1844) taken his degree at Cambridge, when he was not only 'senior classic' but a senior classic of exceptional brilliancy. Both Maine and Gibbs were apostles and, of course, friends. My brother's first achievement was to come near blowing out his new friend's brains by the accidental discharge of a gun. Maine happily escaped, and must have taken a liking to the lad. In 1847 Maine was appointed to the Regius Professorship of Civil Law in Cambridge. The study which he was to teach had fallen into utter decay. Maine himself cannot at that time have had any profound knowledge of the Civil Law—if, indeed, he ever acquired such knowledge. But his genius enabled him to revive the study in England—although no genius could galvanise the corpse of legal studies at the Cambridge of those days into activity. Maine, as Fitzjames says, 'made in the most beautiful manner applications of history and philosophy to Roman law, and transfigured one of the driest of subjects into all sorts of beautiful things without knowing or caring much about details.' He was also able to 'sniff at Bentham' for his ignorance in this direction. 'I rebelled against Maine for many years,' says Fitzjames, 'till at last I came to recognise, not only his wonderful gifts, but the fact that at bottom he and I agreed fundamentally, though it cost us both a good deal of trouble to find it out.' I quote this because it bears upon my brother's later development of opinion. For the present, the personal remark is more relevant. Maine, says Fitzjames, 'was perfectly charming to me at college, as he is now. He was most kind, friendly, and unassuming; and, though I was a freshman and he a young don,[56] and he was twenty-six when I was twenty—one of the greatest differences of age and rank which can exist between two people having so much in common—we were always really and effectually equal. We have been the closest of friends all through life.' I think, indeed, that Maine's influence upon my brother was only second to that of my father.

Maine brought Fitzjames into the apostles in his first term.[57] Maine, says my brother, 'was a specially shining apostle, and in all discussions not only took by far the first and best part, but did it so well and unpretentiously, and in a strain so much above what the rest of us could reach, that it was a great piece of education to hear him.' Other members of the little society, which generally included only five or six—the name 'apostles' referring to the limit of possible numbers—were E. H. Stanley (afterwards Lord Derby), who left in March 1848, Vernon Harcourt (now Sir William), H. W. Watson, Julian Fane,[58] and the present Canon Holland. Old members—Monckton Milnes, James Spedding, Henry Fitzmaurice Hallam, and W. H. Thompson (the tutor)—occasionally attended meetings. The late Professor Hort and the great physicist, Clerk Maxwell, joined about the time of my brother's departure. He records one statement of Maxwell's which has, I suspect, been modified in transmission. The old logicians, said Maxwell, recognised four forms of syllogism. Hamilton had raised the number to 7, but he had himself discovered 135. This, however, mattered little, as the great majority could not be expressed in human language, and even if expressed were not susceptible of any meaning.

This specimen would give a very inaccurate notion of the general line of discussion. By the kindness of Professor Sidgwick, I am enabled to give some specimens of the themes supported by my brother, which may be of interest, not merely in regard to him, but as showing what topics occupied the minds of intelligent youths at the time. The young gentlemen met every Saturday night in term time and read essays. They discussed all manner of topics. Sometimes they descended to mere commonplaces—Is a little knowledge a dangerous thing? Is it possible ridentem dicere verum? (which Fitzjames is solitary in denying)—but more frequently they expatiate upon the literary, poetical, ethical, and philosophical problems which can be answered so conclusively in our undergraduate days. Fitzjames self-denyingly approves of the position assigned to mathematics at Cambridge. In literary matters I notice that he does not think the poetry of Byron of a 'high order'; that he reads some essays of Shelley, which are unanimously voted 'unsatisfactory'; that he denies that Tennyson's 'Princess' shows higher powers than the early poems (a rather ambiguous phrase); that he considers Adam, not Satan, to be the hero of 'Paradise Lost'; and, more characteristically, that he regards the novels of the present day as 'degenerate,' and, on his last appearance, maintains the superiority of Miss Austen's 'Emma' to Miss Bronte's 'Jane Eyre.' 'Jane Eyre' had then, I remember, some especially passionate admirers at Cambridge. His philosophical theories are not very clear. He thinks, like some other people, that Locke's chapter on 'Substance' is 'unsatisfactory'; and agrees with some 'strictures' on the early chapters of Mill's 'Political Economy.' He writes an essay to explode the poor old social contract. He holds that the study of metaphysics is desirable, but adds the note, 'not including ontological inquiries under the head of metaphysics.' He denies, however, the proposition that 'all general truths are founded on experience.' He thinks that a meaning can be attached to the term 'freewill'; but considers it impossible 'to frame a satisfactory hypothesis as to the origin of evil.' Even the intellect of the apostles had its limits. His ethical doctrines seem to have inclined to utilitarianism. The whole society (four members present) agrees that the system of expediency, 'so far from being a derogation from the moral dignity of man, is the only method consistent with the conditions of his action.' He is neutral upon the question whether 'self-love is the immediate motive of all our actions,' and considers that question unmeaning, 'as not believing it possible that a man should be at once subject and object.' He writes an essay to show that there is no foundation 'for a philosophy of history in the analogy between the progressive improvement of mankind and that of which individuals are capable,' and he holds (in opposition to Maine) that Carlyle is a 'philosophic historian.' The only direct reference to contemporary politics is characteristic. Fane had argued that 'some elements of socialism' should be 'employed in that reconstruction of society which the spirit of the age demands.' Maine agrees, but Fitzjames denies that any reconstruction of society is needed.

Theological discussions abound. Fitzjames thinks that there are grounds independent of revelation for believing in the goodness and unity of an intelligent First Cause. He reads an essay to prove that we can form a notion of inspiration which does not involve dictation. He thinks it 'more agreeable to right reason' to explain the Biblical account of the creation by literal interpretation than 'on scientific principles,' but adds the rider, 'so far as it can be reconciled with geological facts.' He denies that the Pentateuch shows 'traces of Egyptian origin.' He thinks that Paley's views of the 'essential doctrines of Christianity' are insufficient. He approves the 'strict observance of the Sabbath in England,' but notes that he does not wish to 'confound the Christian Sunday with the Jewish Sabbath.'

The instinct which leads a young man to provide himself with a good set of dogmatic first principles is very natural; and the free and full discussion of them with his fellows, however crude their opinions may be, is among the very best means of education. I need only remark that the apostles appear to have refrained from discussion of immediate politics, and to have been little concerned in some questions which were agitating the sister University. They have nothing to say about Apostolical Succession and the like; nor are there any symptoms of interest in German philosophy, which Hamilton and Mansel were beginning to introduce. At Cambridge the young gentlemen are content with Locke and Mill; and at most know something of Coleridge and Maurice. Mr. Watson compares these meetings to those at Newman's rooms in Oxford as described by Mark Pattison. There a luckless advocate of ill-judged theories might be crushed for the evening by the polite sentence, Very likely. At the Cambridge meetings, the trial to the nerves, as Mr. Watson thinks, was even more severe. There was not the spell of common reverence for a great man, in whose presence a modest reticence was excusable. You were expected to speak out, and failure was the more appalling. The contests between Stephen and Harcourt were especially famous. Though, says Mr. Watson, your brother was 'not a match in adroitness and chaff' for his great 'rival,' he showed himself at his best in these struggles. 'The encounters were veritable battles of the gods, and I recall them after forty years with the most vivid recollection of the pleasure they caused.' When Sir William Harcourt entered Parliament, my brother remarked to Mr. Llewelyn Davies, 'It does not seem to be in the natural order of things that Harcourt should be in the House and I not there to criticise him.'

Fitzjames's position in regard both to theology and politics requires a little further notice. At this time my brother was not only a stern moralist, but a 'zealous and reverential witness on behalf of dogma, and that in the straitest school of the Evangelicals.' Mr. Watson mentions the death at college of a fellow-student during the last term of my brother's residence. In his last hours the poor fellow confided to his family his gratitude to Fitzjames for having led him to think seriously on religious matters. I find a very minute account of this written by my brother at the time to a common friend. He expresses very strong feeling, and had been most deeply moved by his first experience of a deathbed; but he makes no explicit reflections. Though decidedly of the evangelical persuasion at this period, and delighting in controversy upon all subjects, great and small, his intense aversion to sentimentalism was not only as marked as it ever became, but even led to a kind of affectation of prosaic matter of fact stoicism, a rejection of every concession to sentiment, which he afterwards regarded as excessive.

The impression made upon him by contemporary politics was remarkable. The events of 1848 stirred all young men in one way or the other; and although the apostles were discussing the abstract problems of freewill and utilitarianism, they were no doubt keenly interested in concrete history. No one was more moved than Fitzjames. He speaks of the optimistic views which were popular with the Liberals after 1832, expounded by Cobden and Bright and supposed to be sanctioned by the Exhibition of 1851. It was the favourite cant that Captain Pen 'had got the best of Captain Sword, and that henceforth the kindly earth would slumber, lapt in universal law. I cannot say how I personally loathed this way of thinking, and how radically false, hollow and disgusting it seemed to me then, and seems to me now.' The crash of 1848 came like a thunderbolt, and 'history seemed to have come to life again with all its wild elemental forces.' For the first time he was aware of actual war within a small distance, and the settlement of great questions by sheer force. 'How well I remember my own feelings, which were, I think, the feelings of the great majority of my age and class, and which have ever since remained in me as strong and as unmixed as they were in 1848. I feel them now (1887) as keenly as ever, though the world has changed and thinks and feels, as it seems, quite differently. They were feelings of fierce, unqualified hatred for the revolution and revolutionists; feelings of the most bitter contempt and indignation against those who feared them, truckled to them, or failed to fight them whensoever they could and as long as they could: feelings of zeal against all popular aspirations and in favour of all established institutions whatever their various defects or harshnesses (which, however, I wished to alter slowly and moderately): in a word, the feelings of a scandalised policeman towards a mob breaking windows in the cause of humanity. I should have liked first to fire grapeshot down every street in Paris, till the place ran with blood, and next to try Louis Philippe and those who advised him not to fight by court martial, and to have hanged them all as traitors and cowards. The only event in 1848 which gave me real pleasure was the days of June, when Cavaignac did what, if he had been a man or not got into a fright about his soul, or if he had had a real sense of duty instead of a wretched consciousness of weakness and a false position, Louis Philippe would have done months before.' He cannot, he admits, write with calmness to this day of the king's cowardice; and he never passed the Tuileries in later life without feeling the sentiment about Louis XVI. and his 'heritage splendid' expressed by Thackeray's drummer, 'Ah, shame on him, craven and coward, that had not the heart to defend it!'

'I have often wondered,' adds Fitzjames, 'at my own vehement feelings on these subjects, and I am not altogether prepared to say that they are not more or less foolish. I have never seen war. I have never heard a shot fired in anger, and I have never had my courage put to any proof worth speaking of. Have I any right to talk of streets running with blood? Is it not more likely that, at a pinch, I might myself run in quite a different direction? It is one of the questions which will probably remain unanswered for ever, whether I am a coward or not. But that has nothing really to do with the question. If I am a coward, I am contemptible: but Louis Philippe was a coward and contemptible whether I am a coward or not; and my feelings on the whole of this subject are, at all events, perfectly sincere, and are the very deepest and most genuine feelings I have.' Fitzjames's only personal experience of revolutionary proceedings was on the famous 10th of April, when he was in London, but saw only special constables. The events of the day confirmed him in the doctrine that every disorganised mob is more likely to behave in the spirit of the lowest and most contemptible units than in the spirit of what is highest in them.

I can only add one little anecdote of those days. A friend of my brother's rushed into his rooms obviously to announce some very exciting piece of news. Is the mob triumphant in Paris? 'I don't know,' was the reply, 'but a point has been decided in the Gorham case.' Good evangelical as Fitzjames then was, he felt that there were more important controversies going on than squabbles over baptismal regeneration. A curious set of letters written in his first vacation to his friend Dr. Kitchin show, however, that he then took an eager interest in this doctrine. He discusses it at great length in the evangelical sense, with abundant quotations of texts.

While interested in these matters, winning fame at the Union and enjoying the good opinion of the apostles, Fitzjames was failing in a purely academical sense. He tried twice for a scholarship at Trinity, and both times unsuccessfully, though he was not very far from success. The failure excluded him, as things then were, from the possibility of a fellowship, and a degree became valueless for its main purpose. He resolved, therefore, to go abroad with my father, who had to travel in search of health. He passed the winter of 1850-1 in Paris, where he learnt French, and attended sittings of the Legislative Assembly, and was especially interested by proceedings in the French law-courts. He kept the May term of 1851 at Cambridge, and went out in the 'Poll.' Judging from the performances of his rivals, he would probably have been in the lower half of the first class in the Classical Tripos. Although his last months at Cambridge were not cheering, he retained a feeling for the place very unlike his feeling towards Eton. He had now at least found himself firmly on his own legs, measured his strength against other competitors, and made lasting friendships with some of the strongest. It had been, he says, 'my greatest ambition to get a fellowship at Trinity, but I got it at last, however, for I was elected an honorary Fellow in the autumn of 1885. I have had my share of compliments, but I never received one which gave me half so much pleasure.' He visited Cambridge in later years and was my guest, and long afterwards the guest of his friend Maine, at certain Christmas festivities in Trinity Hall. He speaks in the warmest terms of his appreciation of the place, 'old and dignified, yet fresh and vigorous.' Nearly his last visit was in the autumn of 1885, when he gave a dinner to the apostles, of whom his son James was then a member.

Fitzjames's friends were naturally surprised at his throwing up the game. Most of them set, as I have intimated, a higher value upon academical honours, considered by themselves, than he ever admitted to be just. Possibly they exaggerated a little the disgust which was implied by his absolute abandonment of the course. And yet, I find the impression among those who saw most of him at the time, that the disappointment was felt with great keenness. The explanation is given, I think, in some remarks made by my father to Mr Watson. My father held that the University system of distributing honours was very faulty. Men, he said, wanted all the confidence they could acquire in their own powers for the struggle of life. Whatever braced and stimulated self-reliance was good. The honour system encouraged the few who succeeded and inflicted upon the rest a 'demoralising sense of failure.' I have no doubt that my father was, in fact, generalising from the case of Fitzjames. What really stung the young man was a more or less dim foreboding of the difficulties which were to meet him in the world at large. He was not one of the men fitted for easy success. The successful man is, I take it, the man with an eye for the line of least resistance. He has an instinct, that is, for the applying his strength in the direction in which it will tell most. And he has the faculty of so falling in with other men's modes of thinking and feeling that they may spontaneously, if unconsciously, form a band of supporters. Obstacles become stepping-stones to such men. It was Fitzjames's fate through life to take the bull by the horns; to hew a path through jungles and up steep places along the steepest and most entangled routes; and to shoulder his way by main strength and weight through a crowd, instead of contriving to combine external pressures into an agency for propulsion. At this time, the contrast between his acceptance with the ablest of his contemporaries in private and his inability to obtain the public stamp of merit perplexed and troubled him. Maine and Thompson could recognise his abilities. Why could not the examiners? Might not his ambition have to struggle with similar obstacles at the bar or in the pulpit?

I quote from a letter written by my father during Fitzjames's academical career to show what was the relation at this time between the two men. My father dictates to my mother a letter to Fitzjames, dated January 19, 1849.[59] 'You well know,' he says, 'that I have long since surmounted that paternal ambition which might have led me to thirst for your eminence as a scholar.

It has not pleased God to give you that kind of bodily constitution and mental temperament which is essential to such success.' He proceeds to say that, although success in examinations is 'not essential to the great ends of Fitzjames's existence, it is yet very desirable that he should become a good scholar from higher motives—such,' he adds, 'as are expounded in Bacon's "De Augmentis."' He solemnly recommends regular prayer for guidance in studies for which the lower motives may be insufficient. It then occurs to my mother that the advice may be a little discouraging. 'I am reminded by my amanuensis that I have left you in the dark as to my opinion of your probable success in the literary labours to which I have exhorted you. You must be a very mole if the darkness be real. From your childhood to this day I have ever shown you by more than words how high an estimate I entertain both of the depth and the breadth of your capacity. I have ever conversed with you as with a man, not as with a child; and though parental partiality has never concealed from me the fact of your deficiency in certain powers of mind which are essential to early excellence in learning, yet I have never been for a moment distrustful of your possessing an intellect which, if well disciplined and well cultured, will continue to expand, improve, and yield excellent fruit long after the mental faculties of many of your more fortunate rivals will have passed from their full maturity into premature decay. Faith in yourself (which is but one of the many forms of faith in God) is the one thing needful to your intellectual progress; and if your faith in yourself may but survive the disappointment of your academical ambition, that disappointment will be converted into a blessing.'

The letter shows, I think, under the rather elaborate phraseology, both the perspicuity with which the father had estimated his son's talents and the strong sympathy which bound them together. The reference to Fitzjames's 'want of faith in himself' is significant. If want of faith is to be measured by want of courage in tackling the difficulties of life, no man could be really less open to the charge than Fitzjames. But my father, himself disposed to anticipate ill fortune, had certain reasons for attributing to his son a tendency in the same direction. Fitzjames's hatred of all exaggeration, his resolute refusal to be either sentimental or optimistic, led him to insist upon the gloomy side of things. Moreover, he was still indolent; given to be slovenly in his work, and rather unsocial in his ways, though warmly attached to a few friends. My father, impressed by these symptoms, came to the conclusion that Fitzjames was probably unsuited for the more active professions for which a sanguine temper and a power of quickly attaching others are obvious qualifications. He therefore looked forward to his son's adoption of the clerical career, which his own deep piety as well as his painful experience of official vexations had long made him regard as the happiest of all careers. Circumstances strengthened this feeling. My father's income had been diminished by his resignation, while the education of his two sons became more expensive, and he had to contribute to the support of his brother George. No human being could have made us feel more clearly that he would willingly give us his last penny or his last drop of blood. But he was for a time more than usually vexed and anxious; and the fact could not be quite concealed.

Fitzjames's comparative failure at Cambridge suggests to him a significant remark. After speaking of his 'unteachableness,' he observes that his mind was over-full of thoughts about religion, about politics, about morals, about metaphysics, about all sorts of subjects, except art, literature, or physical science. For art of any kind I have never cared, and do not care in the very least. For literature, as such, I care hardly at all. I like to be amused and instructed on the particular things I want to know; but works of genius, as such, give me very little pleasure, and as to the physical sciences, they interest me only so far as they illustrate the true method of inquiry. They, or rather some of them, have the advantage of being particularly true, and so a guide in the pursuit of moral and distinctively human truth. For their own sake, I care very little about them.'

V. READING FOR THE BAR

My brother had definitely to make the choice of a profession upon which he had been reflecting during his college career. He set about the task in an eminently characteristic way. When he had failed in the last scholarship examination, he sat down deliberately and wrote out a careful discussion of the whole question. The result is before me in a little manuscript book, which Fitzjames himself re-read and annotated in 1865, 1872, and 1880. He read it once more in 1893. Both text and commentary are significant. He is anxious above all things to give plain, tangible reasons for his conduct. He would have considered it disgraceful to choose from mere impulse or from any such considerations as would fall under the damnatory epithet 'sentimental.' He therefore begins in the most prosaic fashion by an attempt to estimate the pecuniary and social advantages of the different courses open to him. These are in reality the Church and the Bar; although, by way of exhibiting the openness of his mind, he adds a more perfunctory discussion of the merits of the medical profession. Upon this his uncle, Henry Venn, had made a sufficient comment. 'There is a providential obstacle,' he said, 'to your becoming a doctor—you have not humbug enough.' The argument from these practical considerations leads to no conclusion. The main substance of the discussion is therefore a consideration of the qualities requisite for the efficient discharge of clerical or legal duties. A statement of these qualities, he says, will form the major of his syllogism. The minor will then be, 'I possess or do not possess them'; and the conclusion will follow, 'I ought to be a clergyman or a lawyer.' Although it is easy to see that the 'major' is really constructed with a view to its applicability to his own character, he does not explicitly give any opinions about himself. He digested the results of the general discussions into thirteen questions which are not stated, though it is clear that they must have amounted to asking, Have I the desirable aptitudes? He has, however, elaborately recorded his answers, 'Yes' or 'No,' and noted the precise time and place of answering and the length of time devoted to considering each. He began the inquiry on June 16, 1850. On September 23 he proceeds to answer the questions which he, acting (as he notes) as judge, had left to himself as jury. Questions 1 and 2 can be answered 'immediately'; but No. 3 takes two hours. The 8th, 9th, and 10th were considered together, and are estimated to have taken an hour and a half, between 7 and 11.30 P.M.; though, as he was in an omnibus for part of the time and there fell asleep, this must be conjectural. The 13th question could not be answered at all; but was luckily not important. He had answered the 11th and 12th during a railway journey to Paris on October 2, and had thereupon made up his mind.

One peculiarity of this performance is the cramped and tortuous mode of expressing himself. His thoughts are entangled, and are oddly crossed by phrases clearly showing the influence of Maurice and Coleridge, and, above all, of his father. 'Maurice's books,' he notes in 1865, 'did their utmost to make me squint intellectually about this time, but I never learnt the trick.' A very different writer of whom he read a good deal at college was Baxter, introduced to him, I guess, by one of his father's essays. 'What a little prig I was when I made all these antitheses!' he says in 1865. 'I learnt it of my daddy' is the comment of 1880. 'Was any other human being,' he asks in 1880, 'ever constructed with such a clumsy, elaborate set of principles, setting his feelings going as if they were clockwork?' This is the comment upon a passage where he has twisted his thoughts into a cumbrous and perfectly needless syllogism. He makes a similar comment on another passage in 1865, but 'I think,' he says in 1880, 'that I was a heavy old man thirty years ago. Fifteen years ago I was at the height of my strength. I am beginning to feel now a little more tolerant towards the boy who wrote this than the man who criticised it in 1865; but he was quite right.' The critic of 1865, I may note, is specially hard upon the lad of 1850 for his ignorance of sound utilitarian authorities. He writes against an allusion to Hobbes, 'Ignorant blasphemy of the greatest of English philosophers!' The lad has misstated an argument from ignorance of Bentham and Austin. 'I had looked at Bentham at the period (says 1865), but felt a holy horror of him.' Harcourt, it is added, 'used to chaff me about him.' 1880 admits that '1865, though a fine fellow, was rather too hot in his Benthamism; 1880 takes it easier, and considers that 1850 was fairly right, and that his language if not pharisaically accurate, was plain enough for common-sense purposes.' In fact, both critics admit, and I fully agree with them, that under all the crabbed phraseology there was a very large substratum of good sense and sound judgment of men, to which I add of high principle. Among the special qualifications of a lawyer, the desire for justice takes a prominent place in his argument.

Looking at the whole document from the vantage-ground of later knowledge, the real, though unconscious, purpose seems to be pretty evident. Fitzjames had felt a repugnance to the clerical career, and is trying to convince himself that he has reasonable grounds for a feeling which his father would be slow to approve. There is not the least trace of any objection upon grounds of dissent from the Articles; though he speaks of responsibility imposed by the solemn profession required upon ordination. His real reason is explained in a long comparison between the 'simple-minded' or 'sympathetic' and the 'casuistical' man. They may both be good men; but one of them possesses what the other does not, a power of at once placing himself in close relations to others, and uttering his own thoughts eloquently and effectively without being troubled by reserves and perplexed considerations of the precise meaning of words. He thinks that every clergyman ought to be ready to undertake the 'cure of souls,' and to be a capable spiritual guide. He has no right to take up the profession merely with a view to intellectual researches. In fact, he felt that he was without the qualifications which make a man a popular preacher, if the word may be used without an offensive connotation. He could argue vigorously, but was not good at appealing to the feelings, or offering spiritual comfort, or attracting the sympathies of the poor and ignorant. Substantially I think that he was perfectly right not only in the conclusion but in the grounds upon which it was based. He was a lawyer by nature, and would have been a most awkward and cross-grained piece of timber to convert into a priest. He points himself to such cases as Swift, Warburton, and Sydney Smith to show the disadvantage of a secular man in a priest's vestments.

When his mind was made up, Fitzjames communicated his decision to his father. The dangerous illness of 1850 had thrown his father into a nervous condition which made him unable to read the quaint treatise I have described. He appears, however, to have argued that a man might fairly take orders with a view to literary work in the line of his profession. Fitzjames yielded this ground but still held to the main point. His father, though troubled, made no serious objection, and only asked him to reconsider his decision and to consult Henry Venn. Henry Venn wrote a letter, some extracts from which are appended to the volume with characteristic comments. Venn was too sensible a man not to see that Fitzjames had practically made up his mind. I need only observe that Fitzjames, in reply to some hints in his uncle's letter, observes very emphatically that a man may be serving God at the bar as in the pulpit. His career was now fixed. 'I never did a wiser thing in my life,' says 1865, 'than when I determined not to be a clergyman.' 'Amen!' says 1880, and I am sure that no other year in the calendar would have given a different answer. 'If anyone should ever care to know what sort of man I was then,' says Fitzjames in 1887, 'and, mutatis mutandis, am still, that paper ought to be embodied by reference in their recollections.'

Fitzjames took a lodging in London, for a year or so, and then joined my father at Westbourne Terrace. He entered at the Inner Temple, and was duly called to the bar on January 26, 1854. His legal education, he says, was very bad. He was for a time in the chambers of Mr. (now Lord) Field, then the leading junior on the Midland Circuit, but it was on the distinct understanding that he was to receive no direct instruction from his tutor. He was also in the chambers of a conveyancer. I learnt, he says, 'a certain amount of conveyancing, but in a most mechanical, laborious, wooden kind of way, which had no advantage at all, except that it gave me some familiarity with deeds and abstracts. My tutor was a pure conveyancer; so I saw nothing of equity drafting. I worked very hard with him, however, but I was incapable of being taught and he of teaching.' The year 1852 was memorable for the Act which altered the old system of special pleading. 'The new system was by no means a bad one.... I never learnt it, at least not properly, and while I ought to have been learning, I was still under the spell of an unpractical frame of mind which inclined me to generalities and vagueness, and had in it a vast deal of laziness. When I look back on these times, I feel as if I had been only half awake or had not come to my full growth, though I was just under twenty-five when I was called. How I ever came to be a moderately successful advocate, still more to be a rather distinguished judge, is to me a mystery. I managed, however, to get used to legal ways of looking at things and to the form and method of legal arguments.' He was at the same time going through an apprenticeship to journalism, of which it will be more convenient to speak in the next chapter. It is enough to say for the present that his first efforts were awkward and unsuccessful. After he was called to the bar, he read for the LL.B. examination of the University of London; and not only obtained the degree but enjoyed his only University success by winning a scholarship. One of his competitors was the present Sir Mountstuart Grant Duff. This performance is connected with some very important passages in his development.

He had made some intimate friendships beyond the apostolic circle, of whom Grant Duff was one of the first. They had already met at the rooms of Charles Henry Pearson, one of my brother's King's College friends.[60] Grant Duff was for a long time in very close intimacy, and the friendship lasted for their lives, uninterrupted by political differences. They were fellow-pupils in Field's chambers, were on circuit together for a short time till Grant Duff gave up the profession; and their marriages only brought new members into the alliance. I must confine myself to saying that my brother's frequent allusions prove that he fully appreciated the value of this friendship. Another equally intimate friendship of the same date was with Henry John Stephen Smith.[61] Smith was a godson of my uncle, Henry John Stephen. He and his sister had been from very early years on terms of especial intimacy with our cousins the Diceys. Where and when his friendship with my brother began I do not precisely know, but it was already very close. As in some later cases, of which I shall have to speak, the friendship seemed to indicate that Fitzjames was attracted by complementary rather than similar qualities in the men to whom he was most attached. No two men of ability could be much less like each other. Smith's talents were apparently equally adapted for fine classical scholarship and for the most abstract mathematical investigations. If it was not exactly by the toss of a shilling it was by an almost fortuitous combination of circumstances that he was decided to take to mathematics, and in that field won a European reputation. He soared, however, so far beyond ordinary ken that even Europe must be taken to mean a small set of competent judges who might almost be reckoned upon one's fingers. But devoted as he was to these abstruse studies, Smith might also be regarded as a typical example of the finest qualities of Oxford society. His mathematical powers were recognised by his election to the Savilian professorship in 1860, and the recognition of his other abilities was sufficiently shown by the attempt to elect him member for the University in 1878. He would indeed have been elected had the choice been confined to the residents at Oxford. Smith could discourse upon nothing without showing his powers, and he would have been a singular instance in the House of Commons of a man respected at once for scholarship and for profound scientific knowledge, and yet a chosen mouthpiece of the political sentiments of the most cultivated constituency in the country. The recognition of his genius was no doubt due in great part to the singular urbanity which made him the pride and delight of all Oxford common rooms. With the gentlest of manners and a refined and delicate sense of humour, he had powers of launching epigrams the subtle flavour of which necessarily disappears when detached from their context. But it was his peculiar charm that he never used his powers to inflict pain. His hearers felt that he could have pierced the thickest hide or laid bare the ignorance of the most pretentious learning. But they could not regret a self-restraint which so evidently proceeded from abounding kindness of heart. Smith's good nature led him to lend too easy an ear to applications for the employment of his abilities upon tasks to which his inferiors would have been competent. I do not know whether it was to diffidence and reserve or to the gentleness which shrinks from dispelling illusions that another peculiarity is to be attributed. On religious matters, says his biographer, he was 'absolutely reticent'; he would discuss such topics indeed, but without ever mentioning his own faith.

I mention this because it is relevant to his relations with my brother. Fitzjames was always in the habit of expressing his own convictions in the most downright and uncompromising fashion. He loved nothing better than an argument upon first principles. His intimacy with Smith was confirmed by many long rambles together; and for many years he made a practice of spending a night at Smith's house at Oxford on his way to and from the Midland Circuit. There, as he says, 'we used to sit up talking ethics and religion till 2 or 3 A.M.' I could not however, if I wished, throw any light upon Smith's views; Smith, he says in 1862, is a most delightful companion when he has got over his 'reserve'; and a year later he says that Smith is 'nearly the only man who cordially and fully sympathises with my pet views.' What were the pet views is more than I can precisely say. I infer, however, from a phrase or two that Smith's conversation was probably sceptical in the proper sense; that is, that he discussed first principles as open questions, and suggested logical puzzles. But my brother also admits that he never came to know what was Smith's personal position. He always talked 'in the abstract' or 'in the historical vein,' and 'seemed to have fewer personal plans, wishes and objects of any kind than almost any man I have ever known.'

These talks at any rate, with distinguished Oxford men, must have helped to widen my brother's intellectual horizon. They had looked at the problems of the day from a point of view to which the apostles seem to have been comparatively blind. Another influence had a more obvious result. Fitzjames had to read Stephen's commentaries and Bentham[62] for the London scholarship. Bentham now ceased to be an object of holy horror. My brother, in fact, became before long what he always remained, a thorough Benthamite with certain modifications. It was less a case of influence, however, than of 'elective affinity' of intellect. The account of Fitzjames's experience at Cambridge recalls memories of the earlier group who discussed utilitarianism under the leadership of Charles Austin and looked up to James Mill as their leader. The hatred for 'sentimentalism' and 'vague generalities' and the indifference to mere poetical and literary interests were common to both. The strong points of Benthamism may, I think, be summed up in two words. It meant reverence for facts. Knowledge was to be sought not by logical jugglery but by scrupulous observation and systematic appeals to experience. Whether in grasping at solid elements of knowledge Benthamists let drop elements of equal value, though of less easy apprehension, is not to my purpose. But to a man whose predominant faculty was strong common sense, who was absolutely resolved that whatever paths he took should lead to realities, and traverse solid ground instead of following some will-o'-the-wisp through metaphysical quagmires amidst the delusive mists of a lawless imagination, there was an obvious fascination in the Bentham mode of thought. It must be added, too, that at this time J. S. Mill, the inheritor of Bentham's influences, was at the height of his great reputation. The young men who graduated in 1850 and the following ten years found their philosophical teaching in Mill's 'Logic,' and only a few daring heretics were beginning to pick holes in his system. Fitzjames certainly became a disciple and before long an advocate of these principles.

I find one or two other indications of disturbing studies. He says in a letter that Greg's 'Creed of Christendom' (published in 1851) was the first book of the kind which he read without the sense that he was trespassing on forbidden ground. He told me that he had once studied Lardner's famous 'Credibility of the Gospel History,' to which Greg may not improbably have sent him. The impression made upon him was (though the phrase was used long afterwards) that Lardner's case 'had not a leg to stand upon.' From the Benthamite point of view, the argument for Christianity must be simply the historical evidence. Paley, for whom Fitzjames had always a great respect, put the argument most skilfully in this shape. But if the facts are insufficient to a lawyer's eye, what is to happen? For reasons which will partly appear, Fitzjames did not at present draw the conclusions which to many seem obvious. It took him, in fact, years to develope distinctly new conclusions. But from this time his philosophical position was substantially that of Bentham, Mill, and the empiricists, while the superstructure of belief was a modified evangelicism.

My father's liberality of sentiment and the sceptical tendencies which lay, in spite of himself, in his intellectual tendencies, had indeed removed a good deal of the true evangelical dogmatism. Fitzjames for a time, as I have intimated, seems to have sought for a guide in Maurice. He had been attracted when at King's College by Maurice's personal qualities, and when, in 1853, Maurice had to leave King's College on account of his views about eternal punishment, Fitzjames took a leading part in getting up a testimonial from the old pupils of his teacher. When he became a law student he naturally frequented Maurice's sermons at Lincoln's Inn. Nothing could be more impressive than the manner of the preacher. His voice often trembled with emotion, and he spoke as one who had a solemn message of vast importance to mankind. But what was the message which could reach a hard-headed young 'lawyer by nature' with a turn for Benthamism? Fitzjames gives a kind of general form of Maurice's sermons. First would come an account of some dogma as understood by the vulgar. Tom Paine could not put it more pithily or expressively. Then his hearers were invited to look at the plain words of Scripture. Do they not mean this or that, he would ask, which is quite different to what they had been made to mean? My answer would have been, says Fitzjames, that his questions were 'mere confused hints,' which required all kinds of answers, but mostly the answer 'No, not at all.' Then, however, came Maurice's own answers to them. About this time his hearer used to become drowsy, with 'an indistinct consciousness of a pathetic quavering set of entreaties to believe what, when it was intelligible, was quite unsatisfactory.' Long afterwards he says somewhere that it was 'like watching the struggles of a drowning creed.' Fitzjames, however, fancied for a time that he was more or less of a Mauricean.

From one of his friends, the Rev. J. Llewelyn Davies, I have some characteristic recollections of the time. Mr. Davies was a college friend, and remembers his combativeness and his real underlying warmth of feeling. He remembers how, in 1848, Fitzjames was confident that the 'haves' could beat the 'have nots,' 'set his teeth' and exclaimed, 'Let them come on.' Mr. Davies was now engaged in clerical work at the East-end of London. My brother took pleasure in visiting his friend there, learnt something of the ways of the district, and gave a lecture to a Limehouse audience. He attended a coffee-house discussion upon the existence of God, and exposed the inconclusiveness of the atheistic conclusions. On another occasion he went with 'Tom,' now Judge Hughes, to support Mr. Davies, who addressed a crowd in Leman Street one Sunday night. Hughes endeavoured to suppress a boy who was disposed for mischief. The boy threw himself on the ground, with Hughes holding him down. Fitzjames, raising a huge stick, plunged into the thick of the crowd. No one, however, stood forth as a champion of disorder; and Mr. Davies, guarded by his stalwart supporters, was able to speak to a quiet audience. Fitzjames, says Mr. Davies, was always ready for an argument in those days. He did not seek for a mere dialectical triumph; but he was resolved to let no assumption pass unchallenged, and, above all, to disperse sentiment and to insist upon what was actual and practical. He wrote to Mr. Davies in reference to some newspaper controversies: 'As to playing single-stick without being ever hit myself, I have no sort of taste for it; the harder you hit the better. I always hit my hardest.' 'Some people profess,' he once said to the same friend, 'that the sermon on the Mount is the only part of Christianity which they can accept. It is to me the hardest part to accept.' In fact, he did not often turn the second cheek. He said in the same vein that he should prefer the whole of the Church service to be made 'colder and less personal, and to revive the days of Paley and Sydney Smith.' (The Church of the eighteenth century, only without the disturbing influence of Wesley, was, as he once remarked long afterwards, his ideal.) 'After quoting these words,' says Mr. Davies in conclusion, 'I may be permitted to add those with which he closed the note written to me before he went to India (November 4, 1869), "God bless you. It's not a mere phrase, nor yet an unmeaning or insincere one in my mouth—affectionately yours."'

I shall venture to quote in this connection a letter from my father, which needs a word of preface. Among his experiments in journalism, Fitzjames had taken to writing for the 'Christian Observer,' an ancient, and, I imagine, at the time, an almost moribund representative of the evangelical party. Henry Venn had suggested, it seems, that Fitzjames might become editor. Fitzjames appears to have urged that his theology was not of the desired type. He consulted my father, however, who admitted the difficulty to be insuperable, but thought for a moment that they might act together as editor and sub-editor. My father says in his letters (August 4 and 8, 1854): 'I adhere with no qualifications of which I am conscious to the theological views of my old Clapham friends. You, I suppose, are an adherent of Mr. Maurice. To myself it appears that he is nothing more than a great theological rhetorician, and that his only definite and appreciable meaning is that of wedding the gospel to some form of philosophy, if so to conceal its baldness. But Paul of Tarsus many ages ago forbade the banns.' In a second letter he says that there does not seem to be much real difference between Fitzjames's creed and his own. 'It seems to me quite easy to have a theological theory quite complete and systematic enough for use; and scarcely possible to reach such a theory with any view to speculation—easy, I mean, and scarcely possible for the unlearned class to which I belong. The learned are, I trust and hope, far more fixed and comprehensive in their views than they seem to me to be, but if I dared trust to my own observation I should say that they are determined to erect into a science a series of propositions which God has communicated to us as so many detached and, to us, irreconcilable verities; the common link or connecting principle of which He has not seen fit to communicate. I am profoundly convinced of the consistency of all the declarations of Scripture; but I am as profoundly convinced of my own incapacity to perceive that they are consistent. I can receive them each in turn, and to some extent I can, however feebly, draw nutriment from each of them. To blend them one with another into an harmonious or congruous whole surpasses my skill, or perhaps my diligence. But what then? I am here not to speculate but to repent, to believe and to obey; and I find no difficulty whatever in believing, each in turn, doctrines which yet seem to me incompatible with each other. It is in this sense and to this extent that I adopt the whole of the creed called evangelical. I adopt it as a regulator of the affections, as a rule of life and as a quietus, not as a stimulant to inquiry. So, I gather, do you, and if so, I at least have no right to quarrel with you on that account. Only, if you and I are unscientific Christians, let us be patient and reverent towards those whose deeper minds or more profound inquiries, or more abundant spiritual experience, may carry them through difficulties which surpass our strength.'

My brother's reverence for his father probably prevented him from criticising this letter as he would have criticised a similar utterance from another teacher. He has, however, endorsed it—I cannot say whether at the time—with a tolerably significant remark. 'This,' he says, 'is in the nature of a surrebutter; only the parties, instead of being at issue, are agreed. My opinion as to his opinions is that they are a sort of humility which comes so very near to irony that I do not know how to separate them. Fancy old Venn and Simeon having had more capacious minds than Sir James (credat Christianus).'

The 'Christian Observer' was at this time edited by J. W. Cunningham, vicar of Harrow, who was trying to save it from extinction. He had been educated at Mr. Jowett's, at Little Dunham and at Cambridge, and had been a curate of John Venn, of Clapham. He belonged, therefore, by right, to the evangelical party, and had been more or less known to my father for many years. His children were specially intimate with my aunt, Mrs. Batten, whose husband was a master at Harrow. Emelia Batten, now Mrs. Russell Gurney, was a friend of Cunningham's children, and at this time was living in London, and on very affectionate terms with Fitzjames. He used to pour out to her his difficulties in the matter of profession choosing. There were thus various links between the Cunninghams and ourselves. Mr. Cunningham happened to call upon my father at Norwich, in the summer of 1850. With him came his eldest daughter by his second wife, Mary Richenda Cunningham, and there my brother saw her for the first time. He met her again in company with Miss Batten, on March 2, 1851, as he records, and thereupon fell in love, 'though in a quiet way at first. This feeling has never been disturbed in the slightest degree. It has widened, deepened, and strengthened itself without intermission from that day to this' (January 3, 1887).

The connection with the 'Christian Observer' was of value, not for the few guineas earned, but as leading to occasional visits to Harrow. Fitzjames says that he took great pains with his articles, and probably improved his style, though 'kind old Mr. Cunningham' had to add a few sentences to give them the proper tone. They got him some credit from the small circle which they reached, but that was hardly his main object. 'This period of my life closed by my being engaged on November 11, 1854, at Brighton, just eighteen years to the day after I went to school there, and by my being married on April 19, 1855, at Harrow church, where my father and mother were married forty years before.' The marriage, he says, 'was a blessed revelation to me. It turned me from a rather heavy, torpid youth into the happiest of men, and, for many years, one of the most ardent and energetic. It was like the lines in Tennyson—

A touch, a kiss, the charm was snapped . . . . . . . And all the long-pent stream of life Dashed downward in a cataract.

I am surprised to find that, when I look back to that happiest and most blessed of days through the haze of upwards of thirty-two years, I do not feel in the least degree disposed to be pathetic over the lapse of life or the near approach of old age. I have found life sweet, bright, glorious. I should dearly like to live again; but I am not afraid, and I hope, when the time comes, I shall not be averse to die.'

At this point the autobiographical fragment ceases. I am glad that it has enabled me to use his own words in speaking of his marriage. No one, I think, can doubt their sincerity, nor can anyone who was a witness of his subsequent life think that they over-estimate the results to his happiness. I need only add that the marriage had the incidental advantage of providing him with a new brother and sister; for Henry (now Sir Henry) Stewart Cunningham, and Emily Cunningham (now Lady Egerton), were from this time as dear to him as if they had been connected by the closest tie of blood relationship.

FOOTNOTES:

[Footnote 49: I have quoted a few phrases from it in the previous chapter.]

[Footnote 50: He says the 11th, and mentions more than once a date which afterwards became interesting for another reason. The date given by my mother at the time must be accepted; but this is the only error I have found in my brother's statements—and it is not of profound importance.]

[Footnote 51: I have to thank Mr. Arthur D. Coleridge, my brother's schoolfellow and lifelong friend for a letter containing his recollections of this period.]

[Footnote 52: Macvey Napier correspondence.]

[Footnote 53: My father was sworn of H. M. Privy Council October 30, 1847, and on April 15, 1848, appointed by her Majesty in Council Member of the Committee of Privy Council for the consideration of all matters relating to trade and foreign plantations (Sir James Stephen and Sir Edward Ryan were the last two appointed under that form and title); made K.C.B. April 27, 1848, and finally retired on pension May 3, 1848, having been on sick leave since October 1847.]

[Footnote 54: Kindly sent to me by Mr. Montague Butler, of Pembroke College, Cambridge.]

[Footnote 55: See an article by W. D. Christie in Macmillan's Magazine for November 1864.]

[Footnote 56: Maine was born August 22, 1822, and therefore six years and a half older than Fitzjames.]

[Footnote 57: He was proposed by Maine on October 30, and elected November 13, 1847.]

[Footnote 58: The Life of Julian Fane, by his intimate friend Lord Lytton, was published in 1871. It includes some account of the 'apostles.']

[Footnote 59: It refers, I suppose, to the son's failure to get into the first class in the college examination at Christmas 1848.]

[Footnote 60: Pearson died in 1894, after a career in England and Australia much troubled by ill health. His book upon National Character, published in 1803, first made his remarkable abilities generally known, though he had written very ably upon history.]

[Footnote 61: Born November 2, 1826, d. February 9, 1883. See the memoir by C. H. Pearson prefixed to the collection of Smith's Mathematical Papers (1894).]

[Footnote 62: I guess Dumont's 'Principles.']



CHAPTER III

THE BAR AND JOURNALISM

I. INTRODUCTORY

I have traced at some length the early development of my brother's mind and character. Henceforward I shall have to describe rather the manifestation than the modification of his qualities. He had reached full maturity, although he had still much to learn in the art of turning his abilities to account. His 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. His life henceforward was of the most strenuous. He had become a strong man—strong with that peculiar combination of mental and moral force which reveals itself in masculine common sense. His friends not unfrequently compared him to Dr. Johnson, and, much as the two men differed in some ways, there was a real ground for the comparison. Fitzjames might be called pre-eminently a 'moralist,' in the old-fashioned sense in which that term is applied to Johnson. He was profoundly interested, that is, in the great problems of life and conduct. His views were, in this sense at least, original—that they were the fruit of his own experience, and of independent reflection. Most of us are so much the product of our surroundings that we accept without a question the ordinary formulae which we yet hold so lightly that the principles which nominally govern serve only to excuse our spontaneous instincts. The stronger nature comes into collision with the world, disputes even the most current commonplaces, and so becomes conscious of its own idiosyncrasies, and accepts only what is actually forced upon it by stress of facts and hard logic. The process gives to the doctrines which, with others, represent nothing but phrases, something of the freshness and vividness of personal discoveries. Probably ninety-nine men in a hundred assume without conscious inconsistency the validity both of the moral code propounded in the Sermon on the Mount, and of the code which regulates the actual struggle for life. They profess to be at once gentlemen and Christians, and when the two codes come into conflict, take the one which happens to sanction their wishes. They do not even observe that there is any conflict. Fitzjames could not take things so lightly. Even in his infancy he had argued the first principles of ethics, and worked out his conclusions by conflicts with schoolboy bullies. It is intelligible, therefore, that, as Mr. Davies reports, the Sermon on the Mount should be his great difficulty in accepting Christianity. Its spirit might be, in a sense, beautiful; but it would not fit the facts of life. So, he observes, in his autobiographical fragment, that one of his difficulties was his want of sympathy for the kind of personal enthusiasm with which his father would speak of Jesus Christ. He tried hard to cultivate the same feelings, but could not do so with perfect sincerity.

A man with such distinct and vivid convictions in the place of mere conventional formulae was naturally minded to utter them. He was constantly provoked by the popular acceptance of what appeared to him shallow and insincere theories, and desired to expose the prevailing errors. But the 'little preacher' of three years old had discovered at one and twenty that the pulpit of the ordinary kind was not congenial to him. His force of mind did not facilitate a quick and instinctive appreciation of other people's sentiments. When he came into contact with a man whose impressions of the world were opposed to his own, he was inclined to abandon even the attempt to account for the phenomenon. A man incapable of seeing things in the proper light was hardly worth considering at all. Fitzjames was therefore not sympathetic in the sense of having an imagination ready to place him at other men's point of view. In another sense his sympathies were exceedingly powerful. No man had stronger or more lasting affections. Once attached to a man, he believed in him with extraordinary tenacity and would defend him uncompromisingly through thick and thin. If, like Johnson, he was a little too contemptuous of the sufferings of the over-sensitive, and put them down to mere affectation or feeblemindedness, he could sympathise most strongly with any of the serious sorrows and anxieties of those whom he loved, and was easily roused to stern indignation where he saw sorrow caused by injustice. I shall mention here one instance, to which, for obvious reasons, I can only refer obscurely; though it occupied him at intervals during many years. Shortly after being called to the bar he had agreed to take the place of a friend as trustee for a lady, to whom he was then personally unknown. A year or two later he discovered that she and her husband were the objects of a strange persecution from a man in a respectable position who conceived himself to have a certain hold over them. Fitzjames's first action was to write a letter to the persecutor expressing in the most forcible English the opinion that the gentleman's proper position was not among the respectable but at one of her Majesty's penal settlements. His opinion was carefully justified by a legal statement of the facts upon which it rested, and the effect was like the discharge of the broadside of an old ship of the line upon a hostile frigate. The persecutor was silenced at once and for life. Fitzjames, meanwhile, found that the money affairs of the pair whose champion he had become were deeply embarrassed. He took measures, which were ultimately successful, for extricating them from their difficulties; and until the lady's death, which took place only a year or two before his own, was her unwearied counsellor and protector in many subsequent difficulties. Though I can give no details, I may add that he was repaid by the warm gratitude of the persons concerned, and certainly never grudged the thought and labour which he had bestowed upon the case.

Fitzjames having made up his mind that he was a 'lawyer by nature,' had become a lawyer by profession. Yet the circumstances of his career, as well as his own disposition, prevented him from being absorbed in professional duties. For the fifteen years which succeeded his call to the bar he was in fact following two professions; he was at once a barrister and a very active journalist. This causes some difficulty to his biographer. My account of his literary career will have to occupy the foreground, partly because the literary story bears most directly and clearly the impress of his character, and partly because, as will be seen, it was more continuous. I must, however, warn my readers against a possible illusion of perspective. To Fitzjames himself the legal career always represented the substantive, and the literary career the adjective. Circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. It would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has to be painfully climbed by every barrister not helped by special interest or good fortune. This much must be clearly understood, but I must also notice two qualifications. In the first place, though he became a journalist for convenience, he was in some sense too a journalist by nature. He found, that is, in the press a channel for a great many of the reflections which were constantly filling his mind and demanding some outlet. He wrote for money, and without the least affectation of indifference to money; but the occupation enabled him also to gratify a spontaneous and powerful impulse. And, in the next place, professional success at the bar was in his mind always itself connected with certain literary projects. Almost from the first he was revolving schemes for a great book, or rather for a variety of books. The precise scheme changed from time to time; but the subject of these books is always to be somewhere in the province which is more or less common to law and ethics. Sometimes he is inclined to the more purely technical side, but always with some reference to the moral basis of law; and sometimes he leans more to philosophical and theological problems, but always with some reference to his professional experience and to legal applications. So, for example, he expresses a desire (in a letter written, alas! after the power of executing such schemes had disappeared) to write upon the theory of evidence; but he points out that the same principles which underlie the English laws of evidence are also applicable to innumerable questions belonging to religious, philosophical, and scientific inquiries. Now the position of a judge or an eminent lawyer appeared to him from the first to be desirable for other reasons indeed, but also for the reason that it would enable him to gain experience and to speak with authority. At moments he had thoughts of abandoning law for literature; although the thoughts disappeared as soon as his professional prospects became brighter. His ideal was always such a position as would enable him to make an impression upon the opinions of his countrymen in that region where legal and ethical speculation are both at home.

II. FIRST YEARS AT THE BAR

I will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. Fitzjames was called to the bar of the Inner Temple on January 26, 1854. He had his first brief soon afterwards at the Central Criminal Court, where twenty-five years later he also made his first appearance as a judge. In the same year he joined the Midland Circuit. He had no legal connections upon that or any other circuit. His choice was determined by the advice of Kenneth Macaulay, then leader of the Midland Circuit. He afterwards referred to this as one of the few cases in which good advice had really been of some use. In a letter written in July 1855 he observes that the Midland is the nearest approach to the old circuits as they were before the days of railways. It was so far from London that the barristers had to go their rounds regularly between the different towns instead of coming down for the day. He describes the party who were thus brought together twice a year, gossiping and arguing all day, with plenty of squabbling and of 'rough joking and noisy high spirits' among the idler, that is, much the larger part. He admits that the routine is rather wearisome: the same judgments and speeches seem to repeat themselves 'like dreams in a fever,' and 'droves of wretched over-driven heavy people come up from the prison into a kind of churchwardens' pew,' when the same story is repeated over and over again. And yet he is profoundly interested. Matters turn up which 'seem to me infinitely more interesting than the most interesting play or novel,' and you get strange glimpses of the ways of thinking and living among classes otherwise unknown to you. These criminal courts, he says in another letter, are a 'never-ending source of interest and picturesqueness for me. The little kind of meat-safe door through which the prisoners are called up, and the attendant demon of a gaoler who summons them up from the vasty deep and sends them back again to the vasty deep for terms of from one week to six years, have a sort of mysterious attraction.'

Mr. Franklin Lushington, who was my brother's contemporary on the circuit and ever afterwards an intimate friend, has kindly given me his impressions of this period. It would have been difficult, he says, to find a circuit 'on which the first steps of the path that opens on general eminence in the profession were slower to climb than on the Midland.' It was a small circuit, 'attended by some seventy or eighty barristers and divided into two or three independent and incompatible sets of Quarter Sessions, among which after a year or so of tentative experience it was necessary to choose one set and stand by it. Fitzjames and I both chose the round of the Lincolnshire, Nottinghamshire, and Derbyshire sessions; which involved a good deal of travelling and knocking about in some out-of-the-way country districts, where the sessions bar is necessarily thrown into circumstances of great intimacy. Even when a sessions or assize reputation was gained, it was and remained intensely local. The intricate points relative to settlements and poor-law administration, which had provided numerous appeals to the higher courts in a previous generation, had dwindled gradually to nothing. Even the most remarkable success, slowly and painfully won in one county, might easily fail to produce an effect in the next, or to give any occasion for passing through the thickset hedge which parts provincial from metropolitan notoriety. The most popular and admired advocate in the Lincolnshire courts for many years was our dear friend F. Flowers, afterwards a police magistrate, one of the wittiest, most ingenious, and most eloquent of the bar. Though year after year he held every Lincolnshire jury in the hollow of his hand, and frequently rose to a strain of powerful and passionate oratory which carried away himself and his hearers—not Lincolnshire folk only—in irresistible sympathy with his cause, Flowers remained to his last day on circuit utterly unknown and untried in the adjacent shires of Derby and Nottingham.'

A circuit bar, adds Mr. Lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if God calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. Fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' No attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. 'It was natural to him to look the industrious apprentice that he really was; always craving for work of all kinds and ready at a moment's notice to turn from one task to another. I used to notice him at one moment busy writing an article in complete abstraction and at the next devouring at full speed the contents of a brief just put into his hand, and ready directly to argue the case as if it had been in his hand all day.'

Fitzjames not long afterwards expressed his own judgment of the society of which he had become a member. The English bar, he says,[63] 'is exactly like a great public school, the boys of which have grown older and have exchanged boyish for manly objects. There is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.' It would astonish outsiders if they could hear the remarks sometimes addressed by the British barrister to his learned brother—especially on circuit. The bar, he concludes, 'are a robust, hard-headed, and rather hard-handed set of men, with an imperious, audacious, combative turn of mind,' sometimes, though rarely, capable of becoming eloquent. Their learning is 'multifarious, ill-digested and ill-arranged, but collected with wonderful patience and labour, with a close exactness and severity of logic, unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.'

Fitzjames's position in this bigger public school had at any rate one advantage over his old Etonian days. There was no general prejudice against him to be encountered; and in the intellectual 'rough and tumble' which replaced the old school contests his force of mind was respected by everyone and very warmly appreciated by a chosen few. Among his closest intimates were Mr. Lushington and his old schoolfellow Mr. Arthur Coleridge, who became Clerk of Assize upon the circuit. At starting he had also the society of his friend Grant Duff. They walked together in the summer of 1855, and visited the Trappist Monastery in Charnwood Forest. There they talked to a shaven monk in his 'dreary white flannel dress,' bound with a black strap. They moralised as they returned, and Fitzjames thought on the whole that his own life was wholesomer than the monastic. He hopes, however, that the monk and his companions may 'come right,' as 'no doubt they will if they are honest and true.' 'I suppose one may say that God is in convents and churches as well as in law courts or chambers—though not to my eyes so palpably.'

Sir M. Grant Duff left the circuit after a year or two; but Fitzjames found a few other congenial companions with whom he could occasionally walk and often argue to his heart's content. Among his best friends was Kenneth Macaulay, who became a leader on the circuit, and who did his best to introduce Fitzjames to practice. Mr. Arthur Coleridge, too, was able to suggest to the judges that Fitzjames should be appointed to defend prisoners not provided with counsel. This led by degrees to his becoming well known in the Crown Court, although civil business was slow in presenting itself. Several of the judges took early notice of him. In 1856 he has some intercourse with Lord Campbell, then Chief Justice, and with Chief Baron Pollock, both of them friends of his father. He was 'overpowered with admiration' at Campbell's appearance. Campbell was 'thickset as a navvy, as hard as nails,' still full of vigour at the age of seventy-six, about the best judge on the bench now, and looking fit for ten or twelve years' more of work.[64] Pollock was a fine lively old man, thin as a threadpaper, straight as a ramrod, and full of indomitable vivacity. The judges, however, who formed the highest opinion of him and gave him the most encouragement were Lord Bramwell and Willes.

In 1856 he observes that he was about to take a walk with Alfred Wills of the 'High Alps.' This was the present Mr. Justice Wills; who has also been kind enough to give me some recollections which are to the purpose in this place. Wills was called to the bar in 1851 and joined the Midland Circuit, but attended a different set of quarter sessions. He saw a good deal of Fitzjames, however, at the assizes; and though not especially intimate, they always maintained very friendly relations. The impression made upon Wills in these early years was that Fitzjames was a solitary and rather unsocial person. He was divided from his fellows, as he had been divided from his companions at school and college, by his absorption in the speculations which interested him so profoundly. 'He was much more learned, much better read, and had a much more massive mind than most of us, and our ways and talks must have seemed petty and trivial to him.' Though there were 'some well-read men and good scholars among us, even they had little taste for the ponderous reading in which Fitzjames delighted.' Wills remembers his bringing Hobbes' 'Leviathan' with him, and recreating himself with studying it after his day's work. To such studies I shall have to refer presently, and I will only say, parenthetically, that if Mr. Justice Wills would read Hobbes, he would find, though he tells me that he dislikes metaphysics, that the old philosopher is not half so repulsive as he looks. Still, a constant absorption in these solid works no doubt gave to his associates the impression that Fitzjames lived in a different world from theirs. He generally took his walks by himself, Coleridge being the most frequent interrupter of his solitude. He would be met pounding along steadily, carrying, often twirling, a 'very big stick,' which now and then came down with a blow—upon the knuckles, I take it, of some imaginary blockhead on the other side—muttering to himself, 'immersed in thought and with a fierce expression of concentrated study.' He did not often come to mess, and when he did found some things of which he did not approve. Barristers, it appears, are still capable of indulging in such tastes as were once gratified by the game of 'High Jinks,' celebrated in 'Guy Mannering.' The Circuit Court was the scene of a good deal of buffoonery. It was customary to appoint a 'crier'; and Fitzjames, 'to his infinite disgust, was elected on account of his powerful voice. He stood it once or twice, but at last broke out in a real fury, and declared he would never come to the Circuit Court again, calling it by very strong names. If he had been a less powerful man I am sure that there would have been a fight; but no one cared to tackle that stalwart frame, and I am not sure that the assailant would have come out of the fray alive if he had.' The crisis of this warfare appears to have happened in 1864, when Yorkshire was added to the Midland Circuit, and an infusion of barristers from the Northern Circuit consequently took place. It seems that the manners and customs of the northerners were decidedly less civilised than those of their brethren. A hard fight had to be fought before they could be raised to the desired level. In 1867 I find that Fitzjames proposed the abolition of the Circuit Court. He was defeated by twenty votes to fifteen; and marvels at the queer bit of conservatism cropping up in an unexpected place. In spite of these encounters, Fitzjames not only formed some very warm friendships on circuit, but enjoyed many of the social meetings, and often recurred to them in later years. He only despised tomfoolery more emphatically than his neighbours. Nobody, indeed, could be a more inconvenient presence where breaches of decency or good manners were to be apprehended. I vividly remember an occasion upon which he was one of a little party of young men on a walking tour. A letter read out by one of them had the phrase, 'What a pity about Mrs. A.!' Someone suggested a conjectural explanation not favourable to Mrs. A.'s character. He immediately came in for a stern denunciation from Fitzjames which reduced us all to awestruck silence, and, I hope, gave the speaker an unforgetable lesson as to the duty of not speaking lightly in matters affecting female reputation. He collapsed; and I do not recollect that he ventured any comment upon a letter of the next morning which proved his conjecture to be correct. The principle was the same.

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