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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I need hardly say that Newman's report of the conversation would probably have differed from this, which gives a rough summary from Fitzjames's later recollections. I do not hesitate, however, to express my own belief that it gives a substantially accurate account; and that the reason why Newman had nothing to say is simply that there was nothing to be said. Persons who suppose that a man of Newman's genius in stating an argument must have been a great logician, and who further imagine that a great logician shows his power by a capacity of deducing any conclusions from any premises, will of course deny that statement. To argue the general question involved would be irrelevant. What I am concerned to point out is simply the inapplicability of Newman's argument to one in Fitzjames's state of mind. The result will, I think, show very clearly what was his real position both now and in later years.

His essay on the 'Apologia' insists in the first place upon a characteristic of Newman's writings, which has been frequently pointed out by others; that is, that they are essentially sceptical. The author reaches orthodox conclusions by arguments which are really fatal to them. The legitimate inference from an argument does not depend upon the intention of the arguer; and the true tendency of Newman's reasonings appears simply by translating them into impartial language. Fitzjames dwells especially upon Newman's treatment of the fundamental doctrine of the existence of a God. Newman, for example, defends a belief in transubstantiation by dwelling upon the antinomies involved in the argument for a Deity. As, in one case, we cannot give any meaning to an existence without a beginning, so, in the other, we can attach no meaning to the word 'substance.' If the analogy be correct, the true inference would be that both doctrines are meaningless aggregations of words, and therefore not capable of being in any true sense either 'believed' or 'disbelieved.' So again the view of the external world suggests to Newman 'atheism, pantheism, or polytheism.' Almighty benevolence has created a world of intelligent beings, most of whom are doomed to eternal tortures, and having become incarnate in order to save us, has altogether failed in His purpose. The inference is, says Fitzjames, that 'if Dr. Newman was thoroughly honest he would become an atheist.' The existence of evil is, in fact, an argument against the goodness of God; though it may be, as Fitzjames thinks it is in fact, overbalanced by other evidence. But if it be true that God has created an immense proportion of men to be eternally tormented in hell fire, it is nonsense to call Him benevolent, and the explanation by a supposed 'catastrophe' is a mere evasion.

In spite of this, Newman professes himself, and of course in all sincerity, as much convinced of the existence of God as he is of his own existence. The 'objections,' as he puts it, are only 'difficulties'; they make it hard to understand the theory, but are no more reasons for rejecting it than would be the difficulty which a non-mathematical mind finds in understanding the differential calculus for rejecting 'Taylor's theorem.' And, so far, the difference is rather in the process than the conclusion. Newman believes in God on the testimony of an inner voice, so conclusive and imperative that he can dismiss all apparently contradictory facts, and even afford, for controversial purposes, to exaggerate them. Fitzjames, as a sound believer in Mill's logic, makes the facts the base of his whole argumentative structure, though he thinks that the evidence for a benevolent Deity is much stronger than the evidence against it. When we come to the narrower question of the truth of Christianity the difference is vital. Newman's course had, in fact, been decided by a belief, however generated, in the 'principle of dogma,' and on the other hand by the gradual discovery of the unsatisfactory nature of the old-fashioned Protestant argument as interpreted by Paley and the evidence writers. For that argument, as has been seen, Fitzjames had still a considerable respect. But no one had insisted more energetically upon its practical insufficiency, at any rate, than Newman. He had declared man's reason to be so corrupt, that one who becomes a Protestant is on a slope which will inevitably lead through Socinianism to Atheism. To prove his claims, therefore, to a Protestant by appealing to such grounds as the testimony of the gospels, was obviously impossible. That evidence, taken by itself, especially as a sound utilitarian lawyer would take it, was, on his own showing, practically insufficient to prove the truth of the alleged facts, and, much more, to base upon them the claim of the infallible Church. It is precisely the insufficiency of this view that gives force to the demand for a supernatural authority.

How, then, was Newman to answer an inquirer? Obviously, on his own ground, he must appeal to the a priori arguments afforded by the instinctive desire of men for an authoritative body, and to the satisfaction of their conscience by the dogmas revealed through its agency. Then the question occurs: Is this a logical argument, or an appeal from argument to feeling? Is it not, as Fitzjames thinks, a roundabout way of saying, 'I believe in this system because it suits my tastes and feelings, and because I consider truth unattainable'? If so, persuasion is substituted for reasoning: and the force of persuasion depends upon the constitution of the person to be persuaded. Now the arguments, if they be called arguments, which Newman could address to Fitzjames upon this topic were obviously inapplicable. The dogmas, says Newman, are congenial to the conscience. The conscience demands an avenging Deity, and therefore a doctrine of sacrifice. But such an appeal fails if, in point of fact, a man's conscience rises against the dogma. This was Fitzjames's position. 'Large parts of the (Catholic) theology,' he says in a letter, 'are not only silly, but, I think, cruel and immoral to the last degree. I think the doctrine of eternal damnation so wicked and so cruel that I would as soon teach my children to lie and steal as to believe in it.' This was to express one of his strongest convictions. In a review of Theodore Parker's works,[85] written shortly before, he had to deal with an advocate of that 'intuitional' theory which he always repudiated. But Parker at least appealed to reason, and had, by a different path, reached moral conclusions with Fitzjames thoroughly agreed. Doctrines, says Fitzjames, which prima facie conflict with our belief in a benevolent Creator, such as the theory of vicarious suffering, are not indeed capable of being refuted by Parker's summary method; but he fully agrees that they could only be established by very strong evidence, which he obviously does not believe to exist. To appeal, then, to the conscience on behalf of the very doctrine which has been destroyed by the revolt of our moral feelings is obviously impossible. Newman, when he notices that the modern world rejects the sacrifice theory, explains it by saying that the conscience of the modern world has decayed. But it is a mere playing fast and loose with logic when you deny the authority of the court to which you appeal as soon as it decides against you. To Fitzjames, at any rate, who regarded these doctrines as radically immoral, the argument could have no application.

Finally, the desire for some infallible guide in the midst of our doubts and difficulties is equally wide of the mark. It is so because, though the desire for truth is perfectly natural or highly commendable, there is not the slightest ground for supposing that it implies any royal road to truth. In all other matters, political, social, and physical, we have to blunder slowly into truth by harsh experience. Why not in religious matters? Upon this Fitzjames frequently insists. Deny any a priori probability of such guidance, he says, and the Catholic argument vanishes. Moreover, as he argues at length in his review of the 'Apologia,' it is absolutely inconsistent with facts. What is the use of saying that man's nature demands an infallible guide, when, as a matter of admitted fact, such a guide has only been granted to one small fraction of mankind? For thousands of years, and over the great majority of the present world, you admit yourselves that no such guide exists. What, then, is the value of an a priori argument that it must exist? When Newman has to do with the existence of the Greek Church, he admits it to be inconsistent with his theory, but discovers it to be a 'difficulty' instead of an 'objection.' That is to say that an argument which you cannot answer is to be dismissed on pretence of being only a 'difficulty,' as nonsense is to be admitted under the name of a 'mystery.' If you argued in that way in a court of justice, and, because you had decided a case one way, refused to admit evidence for the other view, what would be the value of your decision?

I cannot here argue the justice of this view of Newman's theories, though personally I think it just. But it is, in any case, eminently characteristic. Fitzjames, like Newman, had been much influenced by Butler. Both of them, after a fashion, accept Butler's famous saying that 'probability is the guide of life.' Newman, believing in the necessity of dogma, holds that we are justified in transmuting the belief corresponding to probability into such 'certitude' as corresponds to demonstration. He does so by the help of appeals to our conscience, which, for the reasons just given, fail to have any force for his opponent. Fitzjames adhered steadily to Butler's doctrine. There is, he says, a probability of the truth of the great religious doctrines—of the existence of a God and a soul; and, therefore, of the correctness of the belief that this world is a school or a preparation for something higher and better. No one could speak more emphatically than he often did of the vast importance of these doctrines. To hold them, he says, makes all the difference between a man and a beast. But his almost passionate assertion of this opinion would never lead him to over-estimate the evidence in its favour. We do not know the truth of these doctrines; we only know that they are probably true, and that probability is and must be enough for us; we must not torture our guesses into a sham appearance of infallible reasoning, nor call them self-evident because we cannot prove them, nor try to transfer the case from the court of reason to the court of sentiment or emotion.

I might say, if I wished to be paradoxical, that this doctrine seems strange precisely because it is so common. It is what most people who think at all believe, but what nobody likes to avow. We have become so accustomed to the assertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. Fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. He replies to one such charge that the 'broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please God, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.'[86] Yet he would not say, for he did not think, that those doctrines could be demonstrated. It was the odd thing about your brother, said his old friend T. C. Sandars to me, that he would bring one face to face with a hopeless antinomy, and instead of trying, like most of us, to patch it up somehow, would conclude, 'Now let us go to breakfast.' Some of us discover a supernatural authority in these cases; others think that the doubt which besets these doctrines results from a vain effort to transcend the conditions of our intelligence, and that we should give up the attempt to solve them. Most men to whom they occur resolve that if they cannot answer their doubts they can keep them out of sight, even of themselves. Fitzjames was peculiar in frankly admitting the desirability of knowledge, which he yet admitted, with equal frankness, to be unattainable. And, for various reasons, partly from natural pugnacity, he was more frequently engaged in exposing sham substitutes for logic than in expounding his own grounds for believing in the probability. His own view was given most strikingly in a little allegory which I shall slightly condense, and which will, I think, sufficiently explain his real position in these matters. It concludes a review of a pamphlet by William Thomson, then Archbishop of York, upon the 'Limits of Philosophical Enquiry.'[87]

I dreamt, he says, after Bunyan's fashion, that I was in the cabin of a ship, handsomely furnished and lighted. A number of people were expounding the objects of the voyage and the principles of navigation. They were contradicting each other eagerly, but each maintained that the success of the voyage depended absolutely upon the adoption of his own plan. The charts to which they appealed were in many places confused and contradictory. They said that they were proclaiming the best of news, but the substance of it was that when we reached port most of us would be thrown into a dungeon and put to death by lingering torments. Some, indeed, would receive different treatment; but they could not say why, though all agreed in extolling the wisdom and mercy of the Sovereign of the country. Saddened and confused I escaped to the deck, and found myself somehow enrolled in the crew. The prospect was unlike the accounts given in the cabin. There was no sun; we had but a faint starlight, and there were occasionally glimpses of land and of what might be lights on shore, which yet were pronounced by some of the crew to be mere illusions. They held that the best thing to be done was to let the ship drive as she would, without trying to keep her on what was understood to be her course. For 'the strangest thing on that strange ship was the fact that there was such a course.' Many theories were offered about this, none quite satisfactory; but it was understood that the ship was to be steered due north. The best and bravest and wisest of the crew would dare the most terrible dangers, even from their comrades, to keep her on her course. Putting these things together, and noting that the ship was obviously framed and equipped for the voyage, I could not help feeling that there was a port somewhere, though I doubted the wisdom of those who professed to know all about it. I resolved to do my duty, in the hope that it would turn out to have been my duty, and I then felt that there was something bracing in the mystery by which we were surrounded, and that, at all events, ignorance honestly admitted and courageously faced, and rough duty vigorously done, was far better than the sham knowledge and the bitter quarrels of the sickly cabin and glaring lamplight from which I had escaped.

I need add no exposition of a parable which gives his essential doctrine more forcibly than I could do it. I will only add that he remained upon good terms with Newman, who had, as he heard, spoken of his article as honest, plain-spoken, and fair to him. He hopes, as he says upon this, to see the old man and talk matters over with him—a phrase which probably anticipates the interview of which I have spoken. Newman afterwards (September 9, 1866) writes to him in a friendly way, and gives him a statement of certain points of Catholic moral theology. They seem to have met again, but without further argument.

Fitzjames wrote various articles in 'Fraser' attacking Manning, and criticising among other writings Mr. Lecky's 'Rationalism' (very favourably), and Professor Seeley's then anonymous 'Ecce Homo.' He thinks that the author is a 'sheep in wolf's clothing,' and that his views dissolve into mist when closely examined. I need not give any account of these articles, but I may notice a personal connection which was involved. At this time Mr. Froude was editor of 'Fraser,' a circumstance which doubtless recommended the organ. At what time he became acquainted with Fitzjames I am unable to say; but the acquaintanceship ripened into one of his closest friendships. They had certain intellectual sympathies; and it would be hard to say which of them had the most unequivocal hatred of popery. Here again, however, the friendship was compatible with, or stimulated by, great contrasts of temperament. No one could be blind to Froude's great personal charm whenever he chose to exert it; but many people had the feeling that it was not easy to be on such terms as to know the real man. There were certain outworks of reserve and shyness to be surmounted, and they indicated keen sensibilities which might be unintentionally shocked. But to such a character there is often a great charm in the plain, downright ways of a masculine friend, who speaks what he thinks without reserve and without any covert intention. Froude and Fitzjames, in any case, became warmly attached; Froude thoroughly appreciated Fitzjames's fine qualities, and Fitzjames could not but delight in Froude's cordial sympathy.[88] Fitzjames often stayed with him in later years, both in Ireland and Devonshire: he took a share in the fishing, shooting, and yachting in which Froude delighted; and if he could not rival his friend's skill as a sportsman admired it heartily, delighted in pouring out his thoughts about all matters, and, as Froude told me, recommended himself to such companions as gamekeepers and fishermen by his hearty and unaffected interest in their pursuits.

Along with this friendship I must mention the friendship with Carlyle. Carlyle had some intercourse with my father in the 'fifties.' My father, indeed, had thought it proper to explain, in a rather elaborate letter after an early conversation, that he did not sympathise with one of Carlyle's diatribes against the Church of England, though he had not liked to protest at the moment. Carlyle responded very courteously and asked for further meetings. His view of my father was coloured by some of his usual severity, but was not intentionally disparaging.

Fitzjames, on his first call, had been received by Mrs. Carlyle, who ordered him off the premises on suspicion of being an American celebrity hunter. He submitted so peacefully that she relented; called him back, and, discovering his name, apologised for her wrath. I cannot fix the dates, but during these years Fitzjames gradually came to be very intimate with her husband. Froude and he were often companions of the old gentleman on some of his walks, though Fitzjames's opportunities were limited by his many engagements. I may here say that it would, I think, be easy to exaggerate the effects of this influence. In later years Fitzjames, indeed, came to sympathise with many of Carlyle's denunciations of the British Constitution and Parliamentary Government. I think it probable that he was encouraged in this view by the fiery jeremiads of the older man. He felt that he had an eminent associate in condemning much that was a general object of admiration. But he had reached his own conclusions by an independent path. From Carlyle he was separated by his adherence to Mill's philosophical and ethical principles. He was never, in Carlyle's phrase, a 'mystic'; and his common sense and knowledge of practical affairs made many of Carlyle's doctrines appear fantastic and extravagant. The socialistic element of Carlyle's works, of which Mr. Ruskin has become the expositor, was altogether against his principles. In walking with Carlyle he said that it was desirable to steer the old gentleman in the direction of his amazingly graphic personal reminiscences instead of giving him texts for the political and moral diatribes which were apt to be reproductions of his books. In various early writings he expressed his dissent very decidedly along with a very cordial admiration both of the graphic vigour of Carlyle's writings and of some of his general views of life. In an article in 'Fraser' for December 1865, he prefaces a review of 'Frederick' by a long discussion of Carlyle's principles. He professes himself to be one of the humble 'pig-philosophers' so vigorously denounced by the prophet. Carlyle is described as a 'transcendentalist'—a kind of qualified equivalent to intuitionist. And while he admires the shrewdness, picturesqueness, and bracing morality of Carlyle's teaching, Fitzjames dissents from his philosophy. Nay, the 'pig-philosophers' are the really useful workers; they have achieved the main reforms of the century; even their favourite parliamentary methods and their democratic doctrines deserve more respect than Carlyle has shown them; and Carlyle, if well advised, would recognise the true meaning of some of the 'pig' doctrines to be in harmony with his own. Their laissez-faire theory, for example, is really a version of his own favourite tenet, 'if a man will not work, neither let him eat.' Although Fitzjames's views changed, he could never become a thorough Carlylean; and after undertaking to write about Carlyle in Mr. Morley's series he abandoned the attempt chiefly because, as he told me, he found that he should have to adopt too frequently the attitude of a hostile critic. Meanwhile Carlyle admired my brother's general force of character, and ultimately made him his executor, in order, as he put it, that there might be a 'great Molossian dog' to watch over his treasure.


I come now to the third book of which I have spoken. This was the 'General View of the Criminal Law of England,' published in 1863. Fitzjames first begins to speak of his intention of writing this book in 1858. He then took it up in preference to the history of the English administrative system, recommended by his father. That book, indeed, would have required antiquarian researches for which he had neither time nor taste. He thought his beginning too long and too dull to be finished at present. He was anxious, moreover, at the time of the Education Commission to emphasise the fact that he had no thoughts of abandoning his profession. A law-book would answer this purpose; and the conclusion of the commission in 1861, and the contemporary breach with the 'Saturday Review,' gave him leisure enough to take up this task. The germ of the book was already contained in his article in the 'Cambridge Essays,' part of which he reproduces. He aspired to make a book which should be at once useful to lawyers and readable by every educated man. The 'View' itself has been in a later edition eclipsed by the later 'History of the English Criminal Law.' In point of style it is perhaps better than its successor, because more concentrated to a single focus. Although I do not profess to be a competent critic of the law, a few words will explain the sense in which I take it to be characteristic of himself.

The book, in the first place, is not, like most law-books, intended for purely practical purposes. It attempts to give an account of the 'general scope, tendency, and design of an important part of our institutions of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, or otherwise torment their fellow-creatures.'[89] The phrase explains the deep moral interest belonging in his mind to a branch of legal practice which for sufficiently obvious reasons is generally regarded as not deserving the attention of the higher class of barristers. Fitzjames was always attracted by the dramatic interest of important criminal cases, and by the close connection in various ways between criminal law and morality. He had now gained sufficient experience to speak with some authority upon a topic which was to occupy him for many years. In his first principles he was an unhesitating disciple of Bentham[90] and Austin. Bentham had given the first great impulse to the reforms in the English Criminal Law, which began about 1827; and Austin had put Bentham's general doctrine into a rigid form which to Fitzjames appeared perfectly satisfactory. Austin's authority has declined as the historical method has developed; Fitzjames gives his impression of their true relations in an article on 'Jurisprudence' in the 'Edinburgh Review' of October 1861. He there reviews the posthumously published lectures of Austin, along with Maine's great book upon 'Ancient Law,' which in England heralded the new methods of thought. His position is characteristic. He speaks enthusiastically of Austin's services in accurately defining the primary conceptions with which jurisprudence is conversant. The effect is, he says, nothing less than this; that jurisprudence has become capable of truly scientific treatment. He confirms his case by the parallel of the Political Economy founded by Adam Smith and made scientific by Ricardo. I do not think that Fitzjames was ever much interested in economical writings; and here he is taking for granted the claims which were generally admitted under the philosophical dynasty of J. S. Mill. Political Economy was supposed to be a definitely constituted science; and the theory of jurisprudence, which sprang from the same school and was indeed its other main achievement, was entitled to the same rank. Fitzjames argues, or rather takes for granted, that the claims of the economists to be strictly scientific are not invalidated by the failure of their assumptions to correspond exactly to concrete facts; and makes the same claim on behalf of Austin. His view of Maine's work is determined by this. He of course cordially admires his friend; but protests against the assumption by which Maine is infected, that a history of the succession of opinions can be equivalent to an examination of their value. Maine shows, for example, how the theory of the 'rights of man' first came up in the world; but does not thereby either prove or disprove it. It may have been a fallacy suggested by accident or a truth first discovered in a particular case. Maine, therefore, and the historical school generally require some basis for their inquiries, and that basis is supplied by the teaching of Bentham and Austin. I will only observe in connection with this that Fitzjames is tempted by his love of such inquiries to devote a rather excessive space in his law-book to inquiries about the logical grounds of conviction which have the disadvantage of not being strictly relevant, and the further disadvantage, I think, of following J. S. Mill in some of the more questionable parts of his logic.

The writings of Bentham consisted largely in denunciations of the various failings of the English law; and here Fitzjames takes a different position. One main point of the book was the working out of a comparison already made in the 'Cambridge Essays' between the English and the French systems. This is summed up in the statement that the English accepts the 'litigious' and the French the 'inquisitorial' system. In other words, the theory of French law is that the whole process of detecting crime is part of the functions of government. In France there is a hierarchy of officials who, upon hearing of a crime, investigate the circumstances in every possible way, and examine everyone who is able, or supposed to be able, to throw any light upon it. The trial is merely the final stage of the investigation, at which the various authorities bring out the final result of all their previous proceedings. The theory of English law, on the contrary, is 'litigious': the trial is a proceeding in which the prosecutor endeavours to prove that the prisoner has rendered himself liable to a certain punishment; and does so by producing evidence before a judge, who is taken to be, and actually is, an impartial umpire. He has no previous knowledge of the fact; he has had nothing to do with any investigations, and his whole duty is to see that the game is played fairly between the ligitants according to certain established rules. Neither system, indeed, carries out the theory exclusively. 'An English criminal trial is a public inquiry, having for its object the discover of truth, but thrown for the purposes of obtaining that end into the form of a litigation between the prosecutor and the prisoner.'[91] On the other hand, in the French system, the jury is really an 'excrescence' introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial theory' is 'beyond all question the true one.' A trial ought obviously to be a public inquiry into a matter of public interest. He holds, however, that the introduction of the continental machinery for the detection of crime is altogether out of the question. It practically regards the liberty and comfort of any number of innocent persons as unimportant in comparison with the detection of a crime; and involves an amount of interference and prying into all manner of collateral questions which would be altogether unendurable in England. He is therefore content to point out some of the disadvantages which result from our want of system, and to suggest remedies which do not involve any radical change of principle.

This brings out his divergence from Bentham, not in principle but in the application of his principles. One most characteristic part of the English system is the law of evidence, which afterwards occupied much of Fitzjames's thoughts. Upon the English system there are a great number of facts which, in a logical sense, have a bearing upon the case, but which are forbidden to be adduced in a trial. So, to make one obvious example, husbands and wives are not allowed to give evidence against each other. Why not? asks Bentham. Because, it is suggested, the evidence could not be impartial. That, he replies, is an excellent reason for not implicitly believing it; but it is no reason for not receiving it. The testimony, even if it be partial, or even if false, may yet be of the highest importance when duly sifted with a view to the discovery of the truth. Why should we neglect any source from which light may be obtained? Such arguments fill a large part of Bentham's elaborate treatise upon the 'Rationale of Evidence,' and support his denunciations of the 'artificial' system of English law. English lawyers, he held, thought only of 'fee-gathering'; and their technical methods virtually reduced a trial from an impartial process of discovering truth into a mere struggle between lawyers fighting under a set of technical and arbitrary rules. He observes, for example, that the 'natural' mode of deciding a case has been preserved in a few cases by necessity, and especially in the case of Courts-Martial.[92] Bentham was not a practical lawyer; and Fitzjames had on more than one occasion been impressed in precisely the opposite way by the same case.[93] He had pointed out that the want of attention to the rules of evidence betrayed courts-martial into all manner of irrelevant and vexatious questions, which protracted their proceedings beyond all tolerable limits. But, on a larger scale, the same point was illustrated by a comparison between French and English trials. To establish this, he gives careful accounts of four English and three French trials for murder. The general result is that, although some evidence was excluded in the English trials which might have been useful, the advantage was, on the whole, greatly on their side. The French lawyers were gradually drawn on into an enormous quantity of investigations having very little relation to the case, and finally producing a mass of complicated statements and counter-statements beyond the capacity of a jury to bring to a definite issue. The English trials, on the other hand, did, in fact, bring matters to a focus, and allowed all really relevant matters to be fairly laid before the court. A criminal trial has to be more or less of a rough and ready bit of practical business. The test by which it is decided is not anything which can be laid down on abstract logical principles, but reduces itself to the simple fact that you can get twelve men to express a conviction equal to that which would decide them in important business of their own. And thus, though the English law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence.

The greatest merit, perhaps, of the English system is the attitude naturally assumed by the judge. No one, says Fitzjames, 'can fail to be touched' when he sees an eminent lawyer 'bending the whole force of his mind to understand the confused, bewildered, wearisome, and half-articulate mixture of question and statement which some wretched clown pours out in the agony of his terror and confusion.' The latitude allowed in such cases is highly honourable. 'Hardly anything short of wilful misbehaviour, such as gross insults to the court or abuse of a witness, will draw upon (the prisoner) the mildest reproof.'[94] The tacit understanding by which the counsel for the Crown is forbidden to press his case unfairly is another proof of the excellence of our system, which contrasts favourably in this respect with the badgering and the prolonged moral torture to which a French prisoner is subject. Reforms, however, are needed which will not weaken these excellences. The absence of any plan for interrogating the prisoner avoids the abuses of the French system, but is often a cruel hardship upon the innocent. 'There is a scene,' he says, 'which most lawyers know by heart, but which I can never hear without pain.' It is the scene when the prisoner, confused by the unfamiliar surroundings, and by the legal rules which he does not understand, tries to question the adverse witness, and muddles up the examination with what ought to be his speech for the defence, and, not knowing how to examine, is at last reduced to utter perplexity, and thinks it respectful to be silent. He mentions a case by which he had been much impressed, in which certain men accused of poaching had failed, from want of education and familiarity with legal rules, to bring out their real defence. An unlucky man, for example, had asked questions about the colour of a dog, which seemed to have no bearing upon the case, but which, as it afterwards turned out, incidentally pointed to a fact which identified the really guilty parties. He thinks that the interrogation of the prisoner might be introduced under such restrictions as would prevent any unfair bullying, and yet tend both to help an innocent man and to put difficulties in the way of sham or false defences of the guilty. This question, I believe, is still unsettled. I will not dwell upon other suggestions. I will only observe that he is in favour of some codification of the criminal law; though he thinks that enough would be done by re-enacting, in a simpler and less technical form, the six 'Consolidation Acts' of 1861. He proposes, also, the formation of a Ministry of Justice which would in various ways direct the administration of the law, and superintend criminal legislation. Briefly, however, I am content to say that, while he starts from Bentham, and admits Bentham's fundamental principles, he has become convinced by experience that Bentham's onslaught upon 'judge-made law,' and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. The law requires to be systematised and made clear rather than to be substantially altered. It is, on the whole, a 'generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.' Though English lawyers are too apt to set off 'an unreasonable hardship against an unreasonable indulgence,' 'to trump one quibble by another, and to suppose that they cannot be wrong in practice because they are ostentatiously indifferent to theory,' the temper of the law is, in the main, 'noble and generous.' 'No spectacle,' he says, 'can be better fitted to satisfy the bulk of the population, to teach them to regard the Government as their friend, and to read them lessons of truth, gentleness, moderation, and respect for the rights of others, especially for the rights of the weak and the wicked, than the manner in which criminal justice is generally administered in this country.'[95]

The book produced many of those compliments to which he was becoming accustomed, with a rather rueful sense of their small value. He could, he says, set up a shop with the stock he had received, though, in common honesty, he would have to warn his customers of the small practical value of his goods. Two years hence, he thinks that a report of his being a legal author of some reputation may have reached an attorney. Among the warmest admirers was Willes, who called the 'View' a 'grand book,' kept it by him on the bench, and laid down the law out of it. Willes remarks in a murder case at the same time (March 1865) that the prisoner has been defended 'with a force and ability which, if anything could console one for having to take part in such a case, would do so.' 'It is a great consolation to me,' remarks Fitzjames. The local newspaper observes on the same occasion that Fitzjames's speech for the prisoner kept his audience listening 'in rapt attention' to one of the ablest addresses ever delivered under such circumstances. In the beginning of 1865 he 'obtained the consent' of his old tutor Field, now leader on the circuit, to his giving up attendance at sessions except upon special retainers. Altogether he is feeling more independent and competent for his professional duties.


At this time, however, he joined in another undertaking which for the following five years occupied much of his thoughts. It involved labours so regular and absorbing, that they would have been impossible had his professional employments been equal to his wishes. Towards the end of 1864 he informs Mr. Smith that he cannot continue to be a regular contributor to the 'Cornhill Magazine.' He observes, however, that if Mr. Smith carries out certain plans then in contemplation, he will be happy to take the opportunity of writing upon matters of a more serious kind. The reference is to the 'Pall Mall Gazette,' of which the first number appeared on February 7, 1865, upon the opening day of the parliamentary session. The 'Pall Mall Gazette' very soon took a place among daily papers similar to that which had been occupied by the 'Saturday Review' in the weekly press. Many able writers were attached, and especially the great 'Jacob Omnium' (Matthew James Higgins), who had a superlative turn for 'occasional notes,' and 'W. R. G.' (William Rathbone Greg), who was fond of arguing points from a rather paradoxical point of view. 'I like refuting W. R. G.,' says Fitzjames, though the 'refutations' were on both sides courteous and even friendly.[96] Mr. Frederic Harrison was another antagonist, who always fought in a chivalrous spirit, and on one occasion a controversy between them upon the theory of strikes actually ends by a mutual acceptance of each other's conclusions. A sharp encounter with 'Historicus' of the 'Times' shows that old Cambridge encounters had not produced agreement. Fitzjames was one of the writers to whom Mr. Smith applied at an early stage of the preparatory arrangements. Fitzjames's previous experience of Mr. Smith's qualities as a publisher made him a very willing recruit, and he did his best to enlist others in the same service. He began to write in the second number of the paper, and before very long he took the lion's share of the leading articles. The amount of work, indeed, which he turned out in this capacity, simultaneously with professional work and with some other literary occupations, was so great that these years must, I take it, have been the most laborious in a life of unflagging labour. I give below an account of the number of articles contributed, which will tell the story more forcibly than any general statement. A word or two of explanation will be enough.[97] The 'Pall Mall' of those days consisted of a leading article (rarely of two) often running to a much greater length than is now common; of 'occasional notes,' which were then a comparative novelty; of reviews, and of a few miscellaneous articles. The leading article was a rather more important part of the paper, or at least took up a larger proportion of space than it does at the present day. Making allowance for Sundays, it will be seen that in 1868 Fitzjames wrote two-thirds of the leaders, nearly half the leaders in 1867, and not much less than half in the three other years (1865, 1866, and 1869). The editor was Mr. F. Greenwood, who has kindly given me some of his recollections of the time. That Mr. Greenwood esteemed his contributor as a writer is sufficiently obvious from the simple statement of figures: and I may add that they soon formed a very warm friendship which was never interrupted in later years.

I have said that Fitzjames valued his connection with the paper because it enabled him to speak his mind upon many important subjects which had hitherto been forbidden to him. In the 'Saturday Review' he had been confined to the 'middles' and the reviews of books. He never touched political questions; and such utterances as occurred upon ecclesiastical matters were limited by the high church propensities of the proprietor. In the 'Cornhill' he had been bound to keep within the limits prescribed by the tastes of average readers of light literature. In the 'Pall Mall Gazette' he was able to speak out with perfect freedom upon all the graver topics of the day. His general plan, when in town, was to write before breakfast, and then to look in at the office of the 'Pall Mall Gazette,' Northumberland Street, Strand, in the course of his walk to his chambers. There he talked matters over with Mr. Greenwood, and occasionally wrote an article on the spot. When on circuit he still found time to write, and kept up a steady supply of matter. I find him remarking, on one occasion, that he had written five or six leaders in the 'Pall Mall Gazette' for the week, besides two 'Saturday Review' articles. Everyone who has had experience of journalism knows that the time spent in actual writing is a very inadequate measure of the mental wear and tear due to production. An article may be turned out in an hour or two; but the work takes off the cream of the day, and involves much incidental thought and worry. Fitzjames seemed perfectly insensible to the labour; articles came from him as easily as ordinary talk; the fountain seemed to be always full, and had only to be turned on to the desired end. The chief fault which I should be disposed to find with these articles is doubtless a consequence of this fluency. He has not taken time to make them short. They often resemble the summing-up of a judge, who goes through the evidence on both sides in the order in which it has been presented to him, and then states the 'observations which arise' and the 'general result' (to use his favourite phrases). A more effective mode of presenting the case might be reached by at once giving the vital point and arranging the facts in a new order of subordination.

The articles, however, had another merit which I take to be exceedingly rare. I have often wondered over the problem, What constitutes the identity of a newspaper? I do not mean to ask, though it might be asked, In what sense is the 'Pall Mall Gazette' of to-day the same newspaper as the 'Pall Mall Gazette' of 1865? but What is meant by the editorial 'We'? The inexperienced person is inclined to explain it as a mere grammatical phrase which covers in turn a whole series of contributors. But any writer in a paper, however free a course may be conceded to him, finds as a fact that the 'we' means something very real and potent. As soon as he puts on the mantle, he finds that an indefinable change has come over his whole method of thinking and expressing himself. He is no longer an individual but the mouthpiece of an oracle. He catches some infection of style, and feels that although he may believe what he says, it is not the independent outcome of his own private idiosyncrasy. Now Fitzjames's articles are specially remarkable for their immunity from this characteristic. When I read them at the time, and I have had the same experience in looking over them again, I recognised his words just as plainly as if I had heard his voice. A signature would to me and to all in the secret have been a superfluity. And, although the general public had not the same means of knowledge, it was equally able to perceive that a large part of the 'Pall Mall Gazette' represented the individual convictions of a definite human being, who had, moreover, very strong convictions, and who wrote with the single aim of expressing them as clearly and vigorously as he could. Fitzjames, as I have shown sufficiently, was not of the malleable variety; he did not fit easily into moulds provided by others; but now that his masterful intellect had full play and was allowed to pour out his genuine thought, it gave the impress of individual character to the paper in a degree altogether unusual.

I have one anecdote from Mr. Greenwood which will sufficiently illustrate this statement. Lord Palmerston died on October 18, 1865. On October 27 he was buried in Westminster Abbey. Fitzjames came to the 'Pall Mall Gazette' office and proposed to write an article upon the occasion. He went for the purpose into a room divided by a thin partition from that in which Mr. Greenwood sat. Mr. Greenwood unintentionally became aware, in consequence, that the article was composed literally with prayer and with tears. No one who turns to it will be surprised at the statement. He begins by saying that we are paying honour to a man for a patriotic high spirit which enabled him to take a conspicuous part in building up the great fabric of the British Empire. But he was also—as all who were taking part in the ceremony believed in their hearts—a 'man of the world' and 'a man of pleasure.' Do we, then, disbelieve in our own creed, or are we engaged in a solemn mockery? Palmerston had not obeyed the conditions under which alone, as every preacher will tell us, heaven can be hoped for. Patriotism, good nature, and so forth are, as we are told, mere 'filthy rags' of no avail in the sight of heaven. If this belief be genuine, the service must be a mockery. But he fully believes that it is not genuine. The preachers are inconsistent, but it is an honourable inconsistency. If good and evil be not empty labels of insincere flattery, it is 'right, meet, and our bounden duty' to do what is being done even now—to kneel beside the 'great, good, and simple man whom we all deplore,' and to thank God that it has pleased Him to remove our brother 'out of the miseries of this sinful world.'

'Our miserable technical rules reach but a little way into the mystery' which 'dimly foreshadows that whatever we with our small capacities have been able to love and honour, God, who is infinitely wiser, juster, and more powerful, will love and honour too, and that whatever we have been compelled to blame, God, who is too pure to endure unrighteousness, will deal with, not revengefully or capriciously, but justly and with a righteous purpose. Whatever else we believe, it is the cardinal doctrine of all belief worth having that the Judge of all the earth will do right; that His justice is confined to no rules; that His mercy is over all the earth; and that revenge, caprice, and cruelty can have no place in His punishments.'

Few leading articles, I take it, have been written under such conditions or in such a spirit. The reader must have felt himself face to face with a real man, profoundly moved by genuine thoughts and troubled as only the most able and honest men are troubled, by the contrast between our accustomed commonplaces and our real beliefs. Most of his articles are written in a strain of solid and generally calm common sense; and some, no doubt, must have been of the kind compared by his father to singing without inflated lungs—mere pieces of routine taskwork. Yet, as I have already shown, by his allegory of the ship, there was always a strong vein of intense feeling upon certain subjects, restrained as a rule by his dislike to unveiling his heart too freely and yet making itself perceptible in some forcible phrase and in the general temper of mind implied. The great mass of such work is necessarily of ephemeral interest; and it is painful to turn over the old pages and observe what a mould of antiquity seems to have spread over controversies so exciting only thirty years ago. We have gone far in the interval; though it is well to remember that we too shall soon be out of date, and our most modern doctrines lose the bloom of novelty. There are, however, certain lights in which even the most venerable discussions preserve all their freshness. Without attempting any minute details, I will endeavour to indicate the points characteristic of my brother's development.

There was one doctrine which he expounds in many connections, and which had a very deep root in his character. It appears, for example, in his choice of a profession; decided mainly by the comparison between the secular and the spiritual man. The problem suggested to him by Lord Palmerston shows another application of the same mode of thought. What is the true relation between the Church and the world; or between the monastic and ascetic view of life represented by Newman and the view of the lawyer or man of business? To him, as I have said, God seemed to be more palpably present in a court of justice than in a monastery; and this was not a mere epigram expressive of a transitory mood. Various occurrences of the day led him to apply his views to questions connected with the Established Church. After the 'Essays and Reviews' had ceased to be exciting there were some eager discussions about Colenso, and his relations as Bishop of Natal to the Bishop of Capetown. Controversies between liberal Catholics and Ultramontanes raised the same question under different aspects, and Fitzjames frequently finds texts upon which to preach his favourite sermon. It may be said, I think, that there are three main lines of opinion. In the first place, there was the view of the liberationists and their like. The ideal is a free Church in a free State. Each has its own sphere, and, as Macaulay puts it in his famous essay upon Mr. Gladstone's early book, the State has no more to do with the religious opinions of its subjects than the North-Western Railway with the religious opinions of its shareholders. This, represented a view to which Fitzjames felt the strongest antipathy. It assumed, he thought, a radically false notion, the possibility of dividing human life into two parts, religious and secular; whereas in point of fact the State is as closely interested as the Church in the morality of its members, and therefore in the religion which determines the morality. The State can only keep apart permanently from religious questions by resigning all share in the most profoundly important and interesting problems of life. To accept this principle would therefore be to degrade the State to a mere commercial concern, and it was just for that reason that its acceptance was natural to the ordinary radical who reflected the prejudices of the petty trader. A State which deserves the name has to adopt morality of one kind or another, in its criminal legislation, in its whole national policy, in its relation to education, and more or less in every great department of life. In his view, therefore, the ordinary cry for disestablishment was not the recognition of a tenable and consistent principle, but an attempt to arrange a temporary compromise which could only work under special conditions, and must break up whenever men's minds were really stirred. However reluctant they may be, they will have to answer the question, Is this religion true or not? and to regulate their affairs accordingly. He often expresses a conviction that we are all in fact on the eve of such a controversy, which must stir the whole of society to its base.

We have, then, to choose between two other views. The doctrine of sovereignty expounded by Austin, and derived from his favourite philosopher Hobbes, enabled him to put the point in his own dialect. The difference between Church and State, he said, is not a difference of spheres, but a difference of sanctions. Their commands have the same subject matter: but the priest says, 'Do this or be damned'; the lawyer, 'Do this or be hanged.' Hence the complete separation is a mere dream. Since both bodies deal with the same facts, there must be an ultimate authority. The only question is which? Will you obey the Pope or the Emperor, the power which claims the keys of another life or the power which wields the sword in this. So far he agrees with the Ultramontanes as against the liberal Catholics. But, though the Ultramontanes put the issue rightly, his answer is diametrically opposite. He follows Hobbes and is a thorough-going Erastian. He sympathised to some degree with the doctrine of Coleridge and Dr. Arnold. They regarded the Church and the State as in a sense identical; as the same body viewed under different aspects. Fitzjames held also that State and Church should be identical; but rather in the form that State and Church were to be one and that one the State. For this there were two good reasons. In the first place, the claims of the Church to supernatural authority were altogether baseless. To bow to those claims was to become slaves of priests and to accept superstitions. And, in the next place, this is no mere accident. The division between the priest and layman corresponds to his division between his 'sentimentalist' and his 'stern, cold man of common sense.' Now the priest may very well supply the enthusiasm, but the task of legislation is one which demands the cool, solid judgment of the layman. He insists upon this, for example, in noticing Professor Seeley's description of the 'Enthusiasm of Humanity' in 'Ecce Homo.' Such a spirit, he urges, may supply the motive power, but the essence of the legislative power is to restrict and constrain, and that is the work not of the enthusiast, but of the man of business. During this period he seems to have had some hopes that his principles might be applied. The lawyers had prevented the clergy from expelling each section of the Church in turn: and the decision in the 'Essays and Reviews' cases had settled that free-thinking should have its representatives among ecclesiastical authorities. At one period he even suggests that, if an article or two were added to the thirty-nine, some change made in the ordination service, and a relaxation granted in the terms of subscription, the Church might be protected from sacerdotalism; and, though some of the clergy might secede to Rome, the Church of England might be preserved as virtually the religious department of the State. He soon saw that any realisation of such views was hopeless. He writes from India in 1870 to a friend, whom he had advised upon a prosecution for heresy, saying that he saw clearly that we were drifting towards voluntaryism. Any other solution was for the present out of the question; although he continued to regard this as a makeshift compound, and never ceased to object to disestablishment.

Fitzjames's political views show the same tendencies. He had not hitherto taken any active interest in politics, taken in the narrower sense. Our friend Henry Fawcett, with whom he had many talks on his Christmas visits to Trinity Hall, was rather scandalised by my brother's attitude of detachment in regard to the party questions of the day. Fitzjames stood for Harwich in the Liberal interest at the general election of 1865; but much more because he thought that a seat in Parliament would be useful in his profession than from any keen interest in politics. The Harwich electors in those days did not, I think, take much interest themselves in political principles. Both they and he, however, seemed dimly to perceive that he was rather out of his element, and the whole affair, which ended in failure, was of the comic order. His indifference and want of familiarity with the small talk of politics probably diminished the effect of his articles in so far as it implied a tendency to fall back upon principles too general for the average reader. But there was no want of decided convictions. The death of Palmerston marked the end of the old era, and was soon succeeded by the discussions over parliamentary reform which led to Disraeli's measure of 1867. Fitzjames considered himself to be a Liberal, but the Liberals of those days were divided into various sections, not fully conscious of the differences which divided them. In one of his 'Cornhill' articles[98] Fitzjames had attempted to define what he meant by liberalism. It meant, he said, hostility to antiquated and narrow-minded institutions. It ought also to mean 'generous and high-minded sentiments upon political subjects guided by a highly instructed, large-minded and impartial intellect, briefly the opposite of sordidness, vulgarity, and bigotry.' The party technically called Liberal were about to admit a larger popular element to a share of political power. The result would be good or bad as the new rulers acted or did not act in the spirit properly called Liberal. Unluckily the flattery of the working-man has come into fashion; we ignore his necessary limitations, and we deify the 'casual opinions and ineffectual public sentiments' of the half-educated. 'The great characteristic danger of our days is the growth of a quiet, ignoble littleness of character and spirit.' We should aim, therefore, at impressing our new masters 'with a lofty notion not merely of the splendour of the history of their country, but of the part which it has to play in the world, and of the spirit in which it should be played.' He gives as an example a topic to which he constantly turns. The 'whole fabric' of the Indian Empire, he says, is a monument of energy, 'skill and courage, and, on the whole, of justice and energy, such as the world never saw before.' How are we to deal with that great inheritance bequeathed to us by the courage of heroes and the wisdom of statesmen? India is but one instance. There is hardly an institution in the country which may not be renewed if we catch the spirit which presided over its formation. Liberals have now to be authors instead of critics, and their solution of such problems will decide whether their success is to be a curse or a blessing.

This gives the keynote of his writings in the 'Pall Mall Gazette.' He frankly recognises the necessity, and therefore does not discuss the advisability, of a large extension of the franchise. He protests only against the view, which he attributes to Bright, that the new voters are to enter as victors storming the fortress of old oppressors, holding that they should be rather cordially invited to take their place in a stately mansion upheld for eight centuries by their ancestors. When people are once admitted, however, the pretext for admission is of little importance. Fitzjames gradually comes to have his doubts. There is, he says, a liberalism of the intellect and a liberalism of sentiment. The intellectual liberal is called a 'cold-hearted doctrinaire' because he asks only whether a theory be true or false; and because he wishes for statesmanlike reforms of the Church, the educational system, and the law, even though the ten-pound householder may be indifferent to them. But the sentimental liberal thought only of such measures as would come home to the ten-pound householder; and apparently this kind of liberal was getting the best of it. The various party manoeuvres which culminated in the Reform Bill begin to excite his contempt. He is vexed by the many weaknesses of party government. The war of 1866 suggests reflections upon the military weakness of England, and upon the inability of our statesmen to attend to any object which has no effect upon votes. The behaviour of the Conservative Government in the case of the Hyde Park riots of the same year excites his hearty contempt. He is in favour of the disestablishment of the Irish Church, and lays down substantially the principles embodied in Mr. Gladstone's measure. But he sympathises more and more with Carlyle's view of our blessed constitution. We have the weakest and least permanent government that ever ruled a great empire, and it seems to be totally incapable of ever undertaking any of the great measures which require foresight and statesmanship. He compares in this connection the construction of legal codes in India with our inability to make use of a great legal reformer, such as Lord Westbury, when we happen to get him. Sentiments of this kind seem to grow upon him, although they are not expressed with bitterness or many personal applications. It is enough to say that his antipathy to sentimentalism, and to the want of high patriotic spirit in the Manchester school of politics, blends with a rather contemptuous attitude towards the parliamentary system. It reveals itself to him, now that he is forced to become a critic, as a petty game of wire-pulling and of pandering to shallow popular prejudices of which he is beginning to grow impatient.

I may finish the account of his literary activity at this time by saying that he was still contributing occasional articles to 'Fraser' and to the 'Saturday Review.' The 'Saturday Review' articles were part of a scheme which he took up about 1864. It occurred to him that he would be employing himself more profitably by writing a series of articles upon old authors than by continuing to review the literature of the day. He might thus put together a kind of general course of literature. He wrote accordingly a series of articles which involved a great amount of reading as he went through the works of some voluminous authors. They were published as 'Horae Sabbaticae' in 1892, in three volumes, without any serious revision. It is unnecessary to dwell upon them at any length. It would be unfair to treat them as literary criticism, for which he cared as little as it deserves. He was very fond, indeed, of Sainte-Beuve, but almost as much for the information as for the criticism contained in the 'Causeries.' He had always a fancy for such books as Gibbon's great work which give a wide panoramic view of history, and defended his taste on principle. These articles deal with some historical books which interested him, but are chiefly concerned with French and English writers from Hooker to Paley and from Pascal to De Maistre, who dealt with his favourite philosophical problems. Their peculiarity is that the writer has read his authors pretty much as if he were reading an argument in a contemporary magazine. He gives his view of the intrinsic merits of the logic with little allowance for the historical position of the author. He has not made any study of the general history of philosophy, and has not troubled himself to compare his impressions with those of other critics. The consequence is that there are some very palpable misconceptions and failure to appreciate the true relation to contemporary literature of the books criticised. I can only say, therefore, that they will be interesting to readers who like to see the impression made upon a masculine though not specially prepared mind by the perusal of certain famous books, and who relish an independent verdict expressed in downright terms without care for the conventional opinion of professional critics.

His thoughts naturally turned a good deal to various projects connected with his writing. In July 1867 he writes that he has resolved to concentrate himself chiefly upon the 'Pall Mall Gazette' for the present. He is, however, to complete some schemes already begun. The 'Fraser' articles upon religious topics will make one book; then there are the 'Horae Sabbaticae' articles, of which he has already written fifty-eight, and which will be finished in about twenty more. But, besides this, he has five law-books in his mind, including a rewriting of the book on criminal law and a completion of the old book upon the administrative history. Others are to deal with martial law, insanity, and the relations of England to India and the colonies. Beyond these he looks at an 'awful distance' upon a great book upon law and morals. He is beginning to doubt whether literature would not be more congenial than law, if he could obtain some kind of permanent independent position. Law, no doubt, has given him a good training, but the pettiness of most of the business can hardly be exaggerated; and he hardly feels inclined to make it the great aim of his life. He had, however, risen to a distinctly higher position on his circuit; and just at this time he was engaged in one of the cases which, as usual, brought more in the way of glory than of gain.


The troubles in Jamaica had taken place in October 1865. The severity of the repressive measures excited indignation in England; and discussions arose conducted with a bitterness not often paralleled. The Gordon case was the chief topic of controversy. Governor Eyre had arrested Gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. There he was tried by a court-martial ordered by General Nelson, and speedily hanged. The controversy which followed is a curious illustration of the modes of reasoning of philosophers and statesmen. Nobody could deny the general proposition that the authorities are bound to take energetic measures to prevent the horrors of a servile insurrection. Nor could anyone deny that they are equally bound to avoid the needless severities which the fear of such horrors is likely to produce. Which principle should apply was a question of fact; but in practice the facts were taken for granted. One party assumed unanimously that Governor Eyre had been doing no more than his duty; and the other, with equal confidence, assumed that he was guilty of extreme severity. A commission, consisting of Sir Henry Storks, Mr. Russell Gurney, and Mr. Maule, the recorder of Leeds, was sent out at the end of 1865 to inquire into the facts. Meanwhile the Jamaica Committee was formed, of which J. S. Mill was chairman, with Mr. P. A. Taylor, the Radical leader, as vice-chairman.[99] The committee (in January 1866) took the opinions of Fitzjames and Mr. Edward James as to the proper mode of invoking the law. Fitzjames drew the opinion, which was signed by Mr. James and himself.[100] After the report of the Commission (April 1866), which showed that excesses had been committed, the committee acted upon this opinion.

From Fitzjames's letters written at the time, I find that his study of the papers published by the Commission convinced him that Governor Eyre had gone beyond the proper limits in his behaviour towards Gordon. The governor, he thought, had been guilty of an 'outrageous stretch of power,' and had hanged Gordon, not because it was necessary to keep the peace, but because it seemed to be expedient on general political grounds. This was what the law called murder, whatever the propriety of the name. Fitzjames made an application in January 1867 before Sir Thomas Henry, the magistrate at Bow Street, to commit for trial the officers responsible for the court-martial proceedings (General Nelson and Lieutenant Brand) on the charge of murder. In March he appeared before the justices at Market Drayton, in Shropshire, to make a similar application in the case of Governor Eyre. He was opposed by Mr. (the late Lord) Hannen at Bow Street, and by Mr. Giffard (now Lord Halsbury) at Market Drayton. The country magistrates dismissed the case at once; but Sir Thomas Henry committed Nelson and Brand for trial. Mr. Lushington tells me that Sir Thomas Henry often spoke to him with great admiration of Fitzjames's powerful argument on the occasion. On April 10, 1867, the trial of Nelson and Brand came on at the Old Bailey, when Chief Justice Cockburn delivered an elaborate charge, taking substantially the view of the law already expounded by Fitzjames. The grand jury, however, threw out the bill.

The law, as understood by Fitzjames, comes, I think, substantially to this. The so-called 'martial law' is simply an application of the power given by the common law to put down actual insurrection by force. The officers who employ force are responsible for any excessive cruelty, and are not justified in using it after resistance is suppressed, or the ordinary courts reopened. The so-called courts-martial are not properly courts at all, but simply committees for carrying out the measures adopted on the responsibility of the officials; and the proclamation is merely a public notice that such measures will be employed.

It is clear from Fitzjames's speeches that he felt much sympathy for the persons who had been placed in a position of singular difficulty, and found it hard to draw the line between energetic defence of order and over-severity to the rebels. He explains very carefully that he is not concerned with the moral question, and contends only that the legal name for their conduct is murder. In fact, he paid compliments to the accused which would be very inappropriate to the class of murderers in the ordinary sense of the term. The counsel on the opposite side naturally took advantage of this, and described his remarks as a 'ghastly show of compliment.' It must be awkward to say that a man is legally a murderer when you evidently mean only he has lost his head and gone too far under exceedingly trying circumstances. The Jamaica Committee did not admit of any such distinction. To them Governor Eyre appeared to be morally as well as legally guilty of murder. Fitzjames appears to have felt that the attempt to proceed further would look like a vindictive persecution; and he ceased after this to take part in the case. He congratulated himself upon this withdrawal when further proceedings (in 1868) led to abortive results.

One result was a coolness between my brother and J. S. Mill, who was displeased by his want of sufficient zeal in the matter. They had been on friendly terms, and I remember once visiting Mill at Blackheath in my brother's company. There was never, I think, any cordial relation between them. Fitzjames was a disciple of Mill in philosophical matters, and in some ways even, as I hold, pushed Mill's views to excess. He complains more than once at this time that Carlyle was unjust to the Utilitarian views, which, in his opinion, represented the true line of advance. But Carlyle was far more agreeable to him personally. The reason was, I take it, that Carlyle had what Mill had not, an unusual allowance of the quality described as 'human nature.' Mill undoubtedly was a man of even feminine tenderness in his way; but in political and moral matters he represented the tendency to be content with the abstractions of the unpractical man. He seemed to Fitzjames at least to dwell in a region where the great passions and forces which really stir mankind are neglected or treated as mere accidental disturbances of the right theory. Mill seemed to him not so much cold-blooded as bloodless, wanting in the fire and force of the full-grown male animal, and comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains. Fitzjames could only make a real friend of a man in whom he could recognise the capacity for masculine emotions as well as logical acuteness, and rightly or wrongly Mill appeared to him to be too much of a calculating machine and too little of a human being. This will appear more clearly hereafter.


In the meantime Fitzjames was obtaining, as usual, some occasional spurts of practice at the bar, while the steady gale still refused to blow. He had an influx of parliamentary business, which, for whatever reason, did not last long. He had some arbitration cases of some importance, and he was employed in a patent case in which he took considerable interest. He found himself better able than he had expected to take in mechanical principles, and thought that he was at last getting something out of his Cambridge education. Mr. Chamberlain has kindly sent me his recollections of this case. 'I first made the acquaintance of Sir J. F. Stephen' (he writes) 'in connection with a very important and complicated arbitration in which the firm of Nettlefold & Chamberlain, of which I was then a partner, was engaged. Sir James led for us in this case, which lasted nearly twelve months, and he had as junior the late Lord Bowen. The arbitrator was the present Baron Pollock, assisted by Mr. Hick, M.P., the head of a great engineering firm. From the first I was struck with Sir James Stephen's extraordinary grasp of a most complicated subject, involving as it did the validity of a patent and comparison of most intricate machinery, as well as investigation of most elaborate accounts. He insisted on making himself personally acquainted with all the processes of manufacture, and his final speech on the case was a most masterly summary of all the facts and arguments. In dealing with hostile witnesses he was always firm but courteous, never taking unfair advantage or attempting to confuse, but solely anxious to arrive at the truth. He was a tremendous worker, rising very early in the morning, and occupying every spare moment of his time. I remember frequently seeing him in moments of leisure at work on the proofs of the articles which he was then writing for the "Pall Mall Gazette." In private he was a most charming companion, full of the most varied information and with a keen sense of humour. Our business relations led to a private friendship, which lasted until his death.' In 1868 he took silk, for which he had applied unsuccessfully two years before. In the autumn of the same year he sat for the first time in the place of one of the judges at Leeds, and had the pleasure of being 'my Lord,' and trying criminals. 'It appears to me,' he says, 'to be the very easiest work that ever I did.' The general election at the end of 1868 brought him some work in the course of the following year. He was counsel in several election petitions, and found the work contemptible. 'It would be wearisome,' he says, 'to pass one's life in a round of such things, even if one were paid 100l. a day.' Advocacy in general is hardly a satisfactory calling for a being with an immortal soul, and perhaps a mortal soul would have still less excuse for wasting its time. The view of the ugly side of politics is disgusting, and he acknowledges a 'restless ambition' prompting him to look to some more permanent results.

These reflections were partly suggested by a new turn of affairs. I have incidentally quoted more than one phrase showing how powerfully his imagination had been impressed by the Indian Empire. He says in his last book[101] that in his boyhood Macaulay's 'Essays' had been his favourite book. He had admired their manly sense, their 'freedom from every sort of mysticism,' their 'sympathy with all that is good and honourable.' He came to know him almost by heart, and in particular the essays upon Clive and Warren Hastings gave him a feeling about India like that which other boys have derived about the sea from Marryat's novels. The impression, he says, was made 'over forty years ago,' that is, by 1843. In fact the Indian Empire becomes his staple illustration whenever he is moved to an expression of the strong patriotic sentiment, which is very rarely far from his mind. He speaks in 1865 of recurring to an 'old plan' for writing a book about India. I remember that he suggested to me about that date that I should take up such a scheme, and was a good deal amused by my indignation at the proposal. James Mill, he argued, had been equally without the local knowledge which I declared to be necessary to a self-respecting author. Several circumstances had strengthened the feeling. His friend Maine had gone to India in 1862 as legal Member of Council, and was engaged upon that work of codification to which he refers admiringly in the 'View of the Criminal Law.' In November 1866 Fitzjames's brother-in-law, Henry Cunningham, went to India, where he was appointed public prosecutor in the Punjab. His sister, then Miss Emily Cunningham, joined him there. Their transplantation caused a very important part of Fitzjames's moorings (if I may say so) to be fixed in India. It became probable that he might be appointed Maine's successor. In 1868 this was suggested to him by Maine himself, when he regarded it on the whole unfavourably; but during 1869 the question came to need an answer. Against accepting the post was the risk to his professional prospects. Although not so brilliant as could be wished, they presented several favourable appearances; and he often hoped that he was at last emerging definitely from his precarious position. His opinion varied a little with the good or bad fortune of successive circuits. He felt that he might be sacrificing the interests of his family to his own ambition. The domestic difficulty was considerable. He had at this time seven children; and the necessity of breaking up the family would be especially hard upon his wife. Upon the other hand was the desire for a more satisfying sphere of action. 'I have been having a very melancholy time this circuit' (he writes to Miss Cunningham, March 17, 1869). 'I am thoroughly and grievously out of spirits about these plans of ours. On the whole I incline towards them; but they not unfrequently seem to me cruel to Mary, cruel to the children, undutiful to my mother, Quixotic and rash and impatient as regards myself and my own prospects.... I have not had a really cheerful and easy day for weeks past, and I have got to feel at last almost beaten by it.' He goes on to tell how he has been chaffed with the characteristic freedom of barristers for his consequent silence at mess. It is 'thoroughly weak-minded of me,' he adds, but he will find a 'pretty straight road through it in one direction or another.' Gradually the attractions of India became stronger. 'It would be foolish,' he says, 'when things are looking well on circuit, to leave a really flourishing business to gratify a taste, though I must own that my own views and Henry Cunningham's letters give me almost a missionary feeling about the country.' He reads books upon the subject and his impression deepens. India, he declares, seems to him to be 'legally, morally, politically, and religiously nearly the most curious thing in the world.' At last, on May 11, while he is attending a 'thoroughly repulsive and disgusting' trial of an election petition at Stafford, he becomes sick of his indecision. He resolves to take a two hours' walk and make up his mind before returning. He comes back from his walk clear that it is 'the part of a wise and brave man' to accept such a chance when it comes in his way. Next day he writes to Grant Duff, then Indian Under-Secretary, stating his willingness to accept the appointment if offered to him. He was accordingly appointed on July 2. A fortnight later the Chief Justiceship of Calcutta, vacant by the resignation of Sir Barnes Peacock, was offered to him; but he preferred to retain his previous appointment, which gave him precisely the kind of work in which he was most interested.

He was pleased to recollect that the post on its first creation had been offered to his father. Among his earliest memories were those of the talks about India which took place at Kensington Gore on that occasion, when Macaulay strongly advised my father to take the post of which he soon became himself the first occupant. Fitzjames spent the summer at a house called Drumquinna on the Kenmare river. Froude was his neighbour at Dereen on the opposite bank, and they saw much of each other. In November, after various leave-takings and the reception of a farewell address on resigning the recordership of Newark, he set out for India, his wife remaining for the present in England.


[Footnote 63: 'Bars of France and England,' Cornhill Magazine, p. 681, August 1864.]

[Footnote 64: He died June 22, 1861.]

[Footnote 65: May 16, 1857.]

[Footnote 66: I see from a contemporary note that Fitzjames attributes an article upon Goethe in one of the first numbers to 'Froude, who wrote the Nemesis of Faith'; but this appears to be only his conjecture.]

[Footnote 67: I believe also that for many years he wrote the annual summary of events in the Times.]

[Footnote 68: A list was preserved by Fitzjames of his contributions to the Saturday Review and other periodicals of his time, which enables me to speak of his share with certainty.]

[Footnote 69: December 19, 1857.]

[Footnote 70: See e.g. Saturday Review, January 3 and July 11, 1857, 'Mr. Dickens as a Politician,' and 'The Saturday Review and Light Literature.']

[Footnote 71: October 17, 1857.]

[Footnote 72: Mr. Rogers's Reminiscences (1888), 129-156, gives a full and interesting account of this commission.]

[Footnote 73: P. 130.]

[Footnote 74: Captain Parker Snow has sent me the correspondence and some other documents. An account of his remarkable career will be found in the Review of Reviews for April 1893. The case is reported in the Times of December 8, 1859.]

[Footnote 75: Liberty, Equality, Fraternity.]

[Footnote 76: Reprinted in Essays by a Barrister.]

[Footnote 77: See especially his article upon 'Jurisprudence' in the Edinburgh Review for October 1861.]

[Footnote 78: Reprinted in Essays by a Barrister.]

[Footnote 79: It is characteristic that although in April 1862 I find him saying that he is at the end of 'two years of as hard and unremitting work as ever he did in his life,' I am quite unable to make out why the years should be limited to two: and certainly the work became no lighter afterwards.]

[Footnote 80: Chap. vi. in first edition, p. 69.]

[Footnote 81: Dr. Williams printed privately some Hints to my Counsel in the Court of Arches, of which Mrs. Williams has kindly sent me a copy. He declares that he 'accepts the Articles as they are, and claims to teach them with fidelity and clearness unsurpassed by living man.' No one, I think, can doubt his perfect sincerity. The 'hints' probably suggested some of the quotations and arguments in my brother's defence'; but there is no close coincidence. Dr. Williams cordially expressed his satisfaction with his counsel's performance.]

[Footnote 82: Defence, pp. 19, 20.]

[Footnote 83: Defence, p. 108.]

[Footnote 84: The substance of much of this paper is given in an article called 'Women and Scepticism' in Fraser's Magazine for December 1863.]

[Footnote 85: Fraser's Magazine, February 1864.]

[Footnote 86: Pall Mall Gazette, October 2, 1867. I shall speak of his contributions to this paper presently.]

[Footnote 87: Pall Mall Gazette, November 26, 1868.]

[Footnote 88: Mr. Froude promised me some recollections of this intimacy; but the promise was dissolved by his death in 1894.]

[Footnote 89: Preface.]

[Footnote 90: See 'Bentham' in Horae Sabbaticae, iii. 210-229, published originally about this time.]

[Footnote 91: View of Criminal Law, p. 167.]

[Footnote 92: E.g. Works, vii. 321, &c.]

[Footnote 93: See articles on Courts-Martial in Cornhill for June 1862.]

[Footnote 94: View of Criminal Law, p. 232.]

[Footnote 95: View of Criminal Law, p. 232.]

[Footnote 96: One of his smartest phrases was occasioned by Mr. Greg declaring himself to be a Christian. He was such a Christian, said Fitzjames, as an early disciple who had admired the Sermon on the Mount, but whose attention had not been called to the miracles, and who had died before the resurrection.]

[Footnote 97: Contributions of James Fitzjames Stephen to the Pall Mall Gazette (kindly sent to me by Mr. George Smith):—

Dates Articles Occasional notes Correspondence 1865 143 103 8 1866 147 36 22 1867 194 27 9 1868 226 29 11 1869 142 5 — 1870 14 — — 1872 112 3 2 1873 96 1 7 1874 39 2 8 1875 6 — 5 1878 1 — —]

[Footnote 98: 'Liberalism,' January 1862.]

[Footnote 99: Mr. Charles Buxton was the first chairman, but resigned because he thought a prosecution of Governor Eyre inexpedient, though not unjust. See J. S. Mill's Autobiography, pp. 296-299.]

[Footnote 100: It is substantially given in his History of the Criminal Law (1883), i. 207-216.]

[Footnote 101: Nuncomar and Impey, ii. 271.]




Fitzjames reached Calcutta upon December 12, 1869. Henry Cunningham had made the long journey from Lahore to pay him a few days' visit. The whole time was devoted to an outpour of talk productive of boundless satisfaction to one—I suppose that I may say to both—of them. Fitzjames stayed in India until the middle of April 1872, and his absence from England, including the homeward and outward journeys, lasted for two years and a half. They were in some ways the most important years of his life; but they were monotonous enough in external incidents. I may briefly say that his wife joined him at Calcutta in the beginning of March 1870, and accompanied him to Simla. They diverged to pay a visit on the way to the Cunninghams at Lahore. They stayed at Simla till the end of October, where, for five or six weeks in May and June, Fitzjames was laid up with a sharp attack of fever. This was his only illness in India, and the only interruption to work of more than a day or two's duration. On his return to Calcutta he visited Delhi, whence his wife returned to England for the winter. In April 1871 he went again to Simla, and on the way thither was rejoined at Allahabad by his wife. In the following November she returned to England, while he remained to spend the winter of 1871-2 in Calcutta and finish his official work.

He started in the best of health and in a sanguine frame of mind. He wrote his first letter to his mother from Boulogne (Nov. 9, 1869). 'I cannot tell you,' he says, 'how perfectly happy I feel in all my prospects. I never was more sure in my life of being right.... A whole ocean of small cares and worries has taken flight, and I can let my mind loose on matters I really care about.' He writes a (fourth) letter to his mother between Paris and Marseilles in the same spirit. 'I don't know whether you understand it,' he says, 'but if I had said "No" to India, I should feel as if I had been a coward and had lost the right to respect myself or to profess the doctrines I have always held and preached about the duty of doing the highest thing one can and of not making an idol of domestic comfort.' He continued to write to his mother regularly, dictating letters when disabled from writing by his fever, and the whole series, carefully numbered by her from 1 to 129, now lies before me. He wrote with almost equal regularity to other members of his family, of which he considered my sister-in-law, then Miss Thackeray,[102] to be an adopted member; and occasionally to other friends, such as Carlyle, Froude, and Venables. But to his mother he always devoted the first part of the time at his disposal. The pressure of work limits a few of these letters to mere assertions of his continued health and happiness; but he is always anxious to tell her any little anecdotes likely to interest her. I will give one of these, because it is striking in itself, and his frequent references to it showed how much it had impressed him. An English party, one of whom told him the story, visited a wild gorge on the Brahmapootra, famous for a specially holy shrine. There they fell in with a fakeer, who had wandered for twenty years through all the holy places between the Himalayas and Cape Comorin. He had travelled on foot; he had never lain down, and only rested at night by putting his arms through the loop of a rope. His body was distorted and his legs and arms wasted and painful. He came with a set of villagers to the shrine which was to be the end of all his wanderings; 'did poojah,' and so finished his task. The villagers worshipped him, and prepared a feast and a comfortable bed; but the fakeer looked sad and said, 'No! When I began my journey the goddess Kali appeared to me and told me what I was to do. Had I done it rightly, she would have appeared again to tell me that she was satisfied. Now I must visit all the shrines once more,' and in spite of all persuasion he set out for another twenty years' penance. 'I assure you,' said the narrator, 'that I thought it very sad and did not laugh in the least.' 'Was not that,' says Fitzjames, 'a truly British comment?'

These and other letters have one peculiarity which I shall not exemplify by quotations. There are some feelings, as I find my father observing in one of his own letters, which it is desirable 'rather to intimate than to utter.' Among them many people, I think, would be inclined to reckon their tender affections for members of their own family. They would rather cover their strongest emotions under some veil of indirect insinuation, whether of playful caress or ironical depreciation, than write them down in explicit and unequivocal assertions. That, however, was not Fitzjames's style in any case. His words were in all cases as straightforward and downright as if he were giving evidence upon oath. If he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor creature,' and when he speaks of those who were nearest and dearest to him he uses language of corresponding directness and energy. This method had certainly an advantage when combined with unmistakable sincerity. There could be no sort of doubt that he meant precisely what he said, or that he was obeying the dictates of one of the warmest of hearts. But point-blank language of this kind seems to acquire a certain impropriety in print. I must ask my readers, therefore, to take it for granted that no mother could have received more genuine assurances of the love of a son; and that his other domestic affections found utterance with all the strength of his masculine nature. 'I think myself,' as he sums up his feelings on one occasion, 'the richest and happiest man in the world in one of the greatest elements of richness and happiness'—that is, in the love of those whom he loves. That was his abiding conviction, but I shall be content with the general phrase.

One other topic must be just touched. His daughter Rosamond was at this time an infant, just learning to speak, and was with her mother at Simla in both summers, where also his youngest daughter, Dorothea, was born in 1871. Many of the letters to his mother are filled with nursery anecdotes intended for a grandmother's private reading, and certainly not to be repeated here. I mention the fact, however, because it was really significant. When his elder children were in the nursery, Fitzjames had seen comparatively little of them, partly because his incessant work took him away from home during their waking hours, and partly because he had not been initiated into the charm of infantile playfulness, while, undoubtedly, his natural stiffness and his early stoicism made the art of unbending a little difficult. Under the new conditions, however, he discovered the delightfulness of the relation between a bright little child and a strong grown-up man—at any rate when they are daughter and father. Henceforward he cultivated more directly an affectionate intercourse with his children, which became a great source of future happiness.

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