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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A conclusion of this kind could commend itself neither to the dogmatist who maintains the certainty of his theories, nor to the sceptic who regards them as both meaningless and useless. I have dwelt upon them so long because they seem to me to represent a substantially logical and coherent view which commended itself to a man of very powerful intellect, and which may be presumed to represent much that other people hold less distinctly. The creed of a strong man, expressed with absolute sincerity, is always as interesting as it is rare; and the presumption is that it contains truths which would require to be incorporated in a wider system. At any rate it represents the man; and I have therefore tried to expound it as clearly as I could. I may take it for granted in such references as I shall have to make in the following pages to my brother's judgment of the particular events in which he took part. Mill himself said, according to Professor Bain,[164] that Fitzjames 'did not know what he was arguing against, and was more likely to repel than to attract.' The last remark, as Professor Bain adds, was the truest. Mill died soon afterwards and made no reply, if he ever intended to reply. The book was sharply criticised from the positivist point of view by Mr. Harrison, and from Mill's point of view by Mr. John Morley in the 'Fortnightly Review' (June and August 1873). Fitzjames replied to them in a preface to a second edition in 1874. He complains of some misunderstandings; but on the whole it was a fair fight, which he did not regret and which left no ill-feeling.


The last letter of the series had hardly appeared in the 'Pall Mall Gazette,' when Fitzjames received an application to stand for Liverpool in the Liberal interest. He would be elected without expense to himself. He thought, as he observes, that he should find parliamentary life 'a nuisance'; but a seat in the House might of course further both his professional prospects and his schemes of codification. He consulted Coleridge, who informed him that, if Government remained in office, a codification Commission would be appointed. Coleridge was also of opinion that, in that event, Fitzjames's claims to a seat on the Commission would be irresistible. As, however, it was intended that the Commissioners should be selected from men outside Parliament and independent of political parties, Fitzjames would be disqualified by an election for Liverpool. Upon this he at once declined to stand. A place in a codification Commission would, he said, 'suit him better than anything else in the world.' Coleridge incidentally made the remark, which seems to be pretty obvious, that the authorship of the letters upon 'Liberty, Equality, Fraternity' would be a rather awkward burthen for a Liberal candidate to carry.

For some time Fitzjames might hope, though he hoped with trembling, that something would come of his various codifying projects. It was reported that Mr. Bruce (Lord Aberdare) would introduce the Homicide Bill during Russell Gurney's absence. Coleridge was able after many delays to introduce the Evidence Bill. But it was crowded out of sight by more exciting measures, and it was only upon its final withdrawal on the last day of the session (August 5, 1873) that he could say a few words about it.[165] The Bill was apparently ordered to be printed, but never became public. It went to the parliamentary limbo with many of its brethren.

In the session of 1873 the Government was beginning to totter. The ministerial crisis of March, upon the defeat of the Irish University Bill, was followed by Mr. Gladstone's resignation. He returned to office, but had to attend to questions very different from codification. 'My castle of cards has all come down with a run,' writes Fitzjames (March 14, 1873); 'Gladstone is out of office; Coleridge is going out; my Evidence Act and all my other schemes have blown up—and here am I, a briefless, or nearly briefless, barrister, beginning the world all over again.... I have some reason to think that, if Gladstone had stayed in, I should, in a few weeks, have been Solicitor-General, and on my way to all sorts of honour and glory.' However, he comforts himself with various proverbs. His favourite saying on these occasions, which were only too common, was 'Patience, and shuffle the cards.' The Gladstone Ministry, however, was patched up, and things looked better presently. 'I am,' he says in May, 'in the queerest nondescript position—something between Solicitor-General and Mr. Briefless—with occasional spurts of business' which look promising, but in frequency resemble angelic visits. On June 27 he announces, however, that a whole heap of briefs 'has come in, and, to crown all, a solemn letter came yesterday from the Lord Chancellor, offering to appoint me to act as circuit judge in the place of Lush, who stays in town to try that lump of iniquity, the Claimant.' He was, accordingly, soon at the Winchester Assizes, making a serious experiment in the art of judging, and finding the position thoroughly congenial. He is delighted with everything, including Chief Baron Kelly, a 'very pleasant, chatty old fellow,' who had been called to the bar fifty years before, and was still bright and efficient. Fitzjames's duties exactly suit him. They require close attention, without excessive labour. He could judge for nine hours a day all the year round without fatigue. He gets up at 5.30, and so secures two or three hours, 'reading his books with a quiet mind.' Then there is the pleasure of choosing the right side, instead of having to take a side chosen by others; while 'the constant little effort to keep counsel in order, and to keep them also in good humour, and to see that all things go straight and well, is to me perfectly exquisite.' His practice in journalism has enabled him to take notes of the evidence rapidly, without delaying the witnesses; and he is conscious of doing the thing well and giving satisfaction. The leader of the circuit pays him 'a most earnest compliment,' declaring that the 'whole bar are unanimous in thinking the work done as well as possible. This,' he says, 'made me very happy, for I know, from knowing the men and the bar, it is just the case in which one cannot suspect flattery. If there are independent critics in this world, it is British barristers.' Briefly, it is a delicious 'Pisgah sight of Palestine.' If, in Indian phrase, he could only become 'pucka' instead of 'kucha'—a permanent instead of temporary judge—he would prefer it to anything in the world. He feels less anxious, and declares that he has 'not written a single article this week'; though he manages when work is slack, to find time for a little writing, such as the chapter in Hunter's 'Life of Lord Mayo.'

The assizes were being held at Salisbury soon afterwards, when Fitzjames was summoned to London by a telegram from Coleridge. Coleridge had to tell him that if he could stand for Dundee, where a vacancy had just occurred, he would probably be elected; and that, if elected, he would probably, though no pledge could be given, be made Solicitor-General. Lord Romilly had retired from the Mastership of the Rolls in March. The appointment of his successor was delayed until the Judicature Act, then before Parliament, was finally settled. As, however, Coleridge himself or the Solicitor-General, Sir G. Jessel, would probably take the place, there would be a vacancy in the law offices. Fitzjames hesitated; but, after consulting Lord Selborne, and hearing Coleridge's private opinion that he would be appointed Solicitor-General even if he failed to win the seat, he felt that it would be 'faint-hearted' to refuse. He was to sit as judge, however, at Dorchester, and thought that it would be improper to abandon this duty. The consequent delay, as it turned out, had serious effects. From Dorchester he hurried off to Dundee.

He writes from Dundee on Sunday, July 27, 1873, giving an account of his proceedings. He had been up till 5 A.M. on the morning of the previous Tuesday, and rose again at eight. He did not get to bed till 3 A.M. on Wednesday. He was up at six, went to Dorchester, and attended a 'big dinner,' without feeling sleepy. On Thursday he tried prisoners for four hours; then went to London, and 'rushed hither and thither' from 10 P.M. till 2 A.M. on Friday. He was up again at six, left by the 7.15 train, reached Dundee at 10.30, and was worried by deputations till past twelve. Part of the Liberal party had accepted another candidate, and met him with a polite request that he would at once return to the place whence he came. He preferred to take a night's rest and postpone the question. On Saturday he again 'rushed hither and thither' all day; spoke to 2,000 people for nearly two hours, was 'heckled' for another hour in stifling heat, and had not 'the slightest sensation of fatigue,' except a trifling headache for less than an hour. He was 'surprised at his own strength,' feeling the work less than he had felt the corresponding work at Harwich in 1865.

The struggle lasted till August 5, the day of polling. Fitzjames had to go through the usual experience of a candidate for a large constituency: speaking often six times a day in the open air; addressing crowded meetings at night; becoming involved in a variety of disputes, more or less heated and personal in their nature; and seeing from the inside the true nature of the process by which we manufacture legislators. It was the second election in Dundee affected by Disraeli's extension of the suffrage, and, I believe, the first election in the country which took place under the provisions of the Ballot Act. The work was hard and exciting, especially for a novice who had still to learn the art of speaking to large public meetings; but it was such work as many eager politicians would have enjoyed without reserve. To Fitzjames it was a practical lesson in politics, to which he submitted with a kind of rueful resignation, and from which he emerged with intensified dislike of the whole system concerned.

Dundee was a safe Liberal seat; the working classes under the new system had an overwhelming majority; and no Tory candidate had ventured to offer himself.[166] Fitzjames was virtually the Government candidate. One of his opponents, Mr. Yeaman, had been provost of Dundee, but his fame does not appear to have spread beyond his native town. While Fitzjames was lingering at Dorchester another candidate had come forward, Mr. Edward Jenkins, known as the author of 'Ginx's Baby.' This very clever little book, which had appeared a couple of years previously, had struck the fancy of the public, and run through a great number of editions. It reflected precisely the school of opinion which Fitzjames most cordially despised. The morality was that of Dickens's 'Christmas Carol,' and the political aim that of sentimental socialism. Thus, though all three candidates promised to support Mr. Gladstone's Government, one of Fitzjames's rivals represented the stolid middle-class prejudices, and a second the unctuous philanthropic enthusiasm, which he had denounced with his whole force in 'Liberty, Equality, Fraternity.' No combination could have been contrived which would have set before him more clearly the characteristics of the party of which he still considered himself to be a member.

From the beginning he felt himself to be, in some respects, in a false position. 'My dislike of the business,' he says at starting, 'is not the least due to weakness or over-delicacy, but to a deep-rooted disgust at the whole system of elections and government by constituencies like this.' Three days' experience do not change his view. It is, he says, 'hateful work—such a noise, such waste of time, such unbusinesslike, raging, noisy, irregular ways, and such intolerable smallness in the minds of the people, that I wonder I do not do it even worse.' He could scarcely stand a month of it for a certainty of the Solicitor-Generalship. On the day before the poll he observes that 'it is wretched, paltry work.' A local paper is full of extracts from his 'Liberty, Equality, Fraternity,' which, he fears, will not help him. However, 'it was very good fun writing it.' And meanwhile, Mr. Jenkins was making speeches which showed that 'his heart beat in unison with the people's,' and speaking 'earnest words' on Sunday afternoon to boys on a training ship. Even an enthusiastic speech from one of Fitzjames's supporters at a large meeting, which was followed by a unanimous vote of approval, 'nearly made him sick—it was so unspeakably fulsome.' It was no wonder that he should be inclined to be disgusted with the whole business.

Considering the general uncongeniality of the surroundings, the most remarkable thing was that he made so good a fight as he did. He was encouraged by the presence of his brother by adoption and affection, Frederick Gibbs. 'No one,' he reports, 'could be kinder or more sensible; and he is as cool as a cucumber, and not shocked by my cynical heresies.' From Frederick Gibbs, as he afterwards reports, he has received the 'best and wisest' advice on every point. The 'cynical heresies' to which he refers were simply those already expounded in his book. He said precisely what he thought, and as vigorously as he could say it. A campaign paper, called the 'Torch,' published by some of his supporters, sums up the difference between him and Mr. Jenkins. 'Mr. Stephen's liberalism,' says the 'Torch,' 'is much nearer to radicalism than the liberalism of Mr. Jenkins. Mr. Stephen's liberalism is the liberalism of self-help, of individualism, of every form of conscious industry and energy. It is the only liberalism which has the smallest chance of success in Scotland. The liberalism of Mr. Jenkins is the liberalism of state aid, of self-abasement, of incapacity and indolence'; and leads straight to sentimental communism. According to a 'working man' who writes to the paper, Mr. Jenkins virtually proposes that the industrious part of the working classes are to support the children of the lazy, idle, and improvident—a principle which many people now seem inclined to regard as defensible.

Fitzjames's accounts of his own speeches are to the same purpose. He has repeated, he says, what he has always and everywhere maintained—that people must 'help themselves, and that every class of society is bound together, and is in one boat and on one bottom.' I have read the reports in the local newspapers, which fully confirm this statement; but I need only notice one point. He manages to get in a good word for codification, and illustrates his argument by an ingenious parallel with Bradshaw's 'Railway Guide.' That 'code' is puzzling enough as it is; but what would be our state if we had to discover our route by examining and comparing all the orders given by the directors of railways from their origin, and interpreting them in accordance with a set of unwritten customs, putting special meanings upon the various terms employed?

The educated classes, as the 'Torch' asserts, and as his supporters told him, were entirely in his favour; and, had the old suffrage remained unaltered, no one else would have had a chance against him. Not only so, but they declared that every speech he made was converting the working classes. He is told that, if he had longer time, he would be able to 'talk them all round.' His speeches obviously impressed his hearers for the time. 'You cannot imagine,' he says on August 2, 'how well I get on with the people here, working men as well as gentry. They listen with the deepest attention to all I say, and question me with the keenest intelligence.' He admits, indeed, that there is no political sympathy between him and his hearers. They want a 'thorough-going radical,' and he cannot pretend to be one—'it is forced out on all occasions.' In fact, he was illustrating what he had said in his book. He heartily liked the individual working man; but he had no sympathy with the beliefs which find favour with the abstract or collective working man, who somehow manages to do the voting. They seem to have admired his force, size, and manliness. 'Eh, but ye're a wiselike mon ony way,' says a hideous old woman (as he ungratefully calls her), which, he is told, is the highest of Scottish compliments to his personal appearance. This friendly feeling, and the encouragement of his supporters, and the success of his speeches, raised his hopes by degrees, and he even 'felt a kind of pride in it,' though 'it is poor work educating people by roaring at them.' Towards the end he even thinks it possible that he may win, and, if so, 'it will be an extraordinary triumph, for I have never asked one single person to support me, and I have said the most unpopular things to such an extent that my supporters told me I was over-defiant, or, indeed, almost rude.'

However, it was not to be. Whether, as his friends said, he was too good for the place, or whether less complimentary reasons alleged by his opponents might be justified, he was hopelessly behind at the polls. He received 1,086 votes; Mr. Jenkins, 4,010; and Mr. Yeaman, 5,207—or rather more than both his opponents together. Fitzjames comforts himself by the reflection that both he and Mr. Jenkins had shown their true colours; that the respectable people had believed in him 'with a vengeance,' and that the working men were beginning to like him. But Mr. Jenkins's views were, and naturally must be, the most popular. Fitzjames's chief supporter gave a dinner in his honour, when his health was drunk three times with boundless enthusiasm, and promises were made of the heartiest support on a future occasion. The fulfilment of the promises was not required; and Fitzjames, in spite of occasional overtures, never again took an active part in a political contest.

In 1881, Lord Beaconsfield wrote to Lord Lytton: 'It is a thousand pities that J. F. Stephen is a judge; he might have done anything and everything as leader of the future Conservative party.' Lord Beaconsfield was an incomparably better judge than I can pretend to be of a man's fitness for such a position. The opinion, too, which he thus expressed was shared by some of Fitzjames's friends, who thought that his masculine force of mind and downrightness of character would have qualified him to lead a party effectively. I shall only say that it is idle to speculate on what he might haw done had he received the kind of training which seems to be generally essential to success in political life. He might, no doubt, have learnt to be more tolerant of the necessary compromises and concessions to the feelings engendered by party government. As it was, he had, during his early life, taken so little interest in the political movements of the day, and, before he was dragged for a time into the vortex, had acquired so many prepossessions against the whole system, that I cannot but think that he would have found a difficulty in allying himself closely with any party. He considered the Tories to be not much, if at all, better than the Radicals; and he would, I fancy, have discovered that both sides had, in Lowell's phrase, an equal facility for extemporising lifelong convictions. Upon this, however, I need not dwell. In any case, I think that the Dundee defeat was a blessing in disguise; for, had he been elected and found himself enlisted as a supporter of Mr. Gladstone, his position would have been almost comically inappropriate. A breach would, doubtless, have followed; and perhaps it would have been an awkward business to manage the transition with delicacy.

Fitzjames, in fact, discovered at Dundee that he was not really a 'Liberal' in the sense used in modern politics. His 'liberalism,' as the 'Torch' said, meant something radically opposed to the ideas which were becoming dominant with the party technically called by the name. His growing recognition of a fact which, it may perhaps be thought, should have already been sufficiently obvious, greatly influenced his future career. Meanwhile, he went back to finish his duties as Commissioner at the assizes, and to reflect upon the lessons which, as he said, he had learnt at Dundee. He had fresh ideas, he said, as to politics and the proper mode of treating them. He propounded some of his doctrines in a couple of lectures upon 'Parliamentary Government,' delivered to the Edinburgh Philosophical Society in the following November.[167] He describes some of the familiar consequences; shows how our administrative system has become an 'aggregate of isolated institutions'; and how the reduction of the Royal power to a cipher has led to the substitution of a set of ministers, each a little king in his own department, and shifted backwards and forwards in obedience to popular sentiment. One result is the subordination to party purposes of important interests not essentially connected with them. At the present moment, he says, a disaster on the west coast of Africa would affect the prospects of popular education. That is as rational as it would be to change your lawyer because you have had to discharge your cook. Fitzjames, however, was under no illusions. He fully admits that parliamentary government is inevitable, and that foreign systems are in some respects worse, and, in any case, incapable of being introduced. He confines himself to suggesting that some departments of administration and legislation might be withdrawn from the influence of our party system.


Fitzjames had returned to act again as Commissioner at Wells. There he had to listen to a vehement sermon from Archdeacon Denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'Pall Mall Gazette.' He had afterwards a pleasant chat with Freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' He hears from Coleridge, who has finally decided against accepting the Mastership of the Rolls, and hopes that Fitzjames may still be his colleague. The old Chief Baron is still charming, and says ('though I don't believe it') that he never knew what mental fatigue meant, and that when he was Solicitor-General he was never in bed for more than two or three hours for four or five nights a week ('which, again, I do not believe'). However, it is undeniable that he can still do his work as well as many younger men.

The chance of the Solicitor-Generalship was soon extinguished. Coleridge was friendly, but explained that political considerations might prevent any attention being paid to his personal wishes. In September, in fact, Sir Henry James was appointed to the vacant post and the hope finally disappeared. There was still, however, a possibility of a seat on the bench, which would please him still better. He feels that his proper place is out of Parliament. He could exercise more influence 'than all the Solicitor-Generals in the world' by simply devoting himself to writing, and he is full of plans for books. But he would like to be a judge for the sake both of the money and the work. 'The administration of justice is really the best thing which is going on in the nation.' On January 9, 1874, however, he announces that his little 'bubble about the judgeship, which looked a very bright bubble indeed, has gone where all bubbles go.' Twenty people had congratulated him upon his appointment and three judges had written to recommend clerks. Last night he had heard decisively that he was not to have it. Coleridge, too, had become Lord Chief Justice and the Government business had gone elsewhere. Well, he will 'put on some extra work to keep hold of the wolf's ears which he has held so long.' Coleridge, I may add, still took an interest in Fitzjames's codification schemes, and they even agreed, or rather vaguely proposed, to act the parts of 'Moses and Aaron,' Fitzjames inspiring measures of which Coleridge was to take charge in the House of Lords. This dream, however, vanished like others.

The dissolution of Parliament in January, 1874, was followed by a general election. Proposals were made to Fitzjames to stand at several places; including Dundee, where, however, Mr. Jenkins was elected. For one reason or other he declined the only serious offers, and was 'not sorry.' He could not get over 'his dislike to the whole affair.' He 'loathed elections,' and 'could not stand the idea of Parliament.' Disraeli soon came into office, and 'the new ministry knew not Joseph.' Fitzjames had quite got over his disappointment about the judgeship, though he admits that he had at first felt it 'bitterly.' He has not known how to find favour with chancellors or ministers. He therefore resolves to make his own way; he cares more for what he is in himself than for the position he holds; and he reconciles himself 'to the prospect which obviously lies before him,' of obscure hard 'labour for a good many years.' He 'puts away all his fair hopes in his pocket, and resolves to do three things: a good bit of codifying,' whether on his own account or for Government; a little book about India; and finally the magnum opus which he had so long meditated, which he thought that he ought to begin when he was fifty (he was at this time just forty-five), and which might take about fifteen years. The little book about India is afterwards frequently mentioned in his letters under its proposed title, 'The English in India.' It was, I think, to be more or less historical, and to occupy some of the ground covered by Sir Alfred Lyall's 'British Dominion in India.' It never took definite shape, but led to the work upon Impey, of which I shall have to speak hereafter. Meanwhile he is not without some good professional omens. He feels that he will have to 'restrict his circuiteering,' and not to go to most of the towns without special retainers. Good work is coming to him in London, though not so frequently as might be wished.

The codifying, in fact, took up much of his time. The 'Homicide Bill' was introduced into Parliament this year (1874) by Russell Gurney, and referred to a Select Committee. They consulted Cockburn, Bramwell, and Blackburn, who appear to have been on the whole hostile. Bramwell, however, declared that the Bill was 'excellently drawn,' and in a friendly letter to Fitzjames condemned the spirit of hostility in which it had been received by other judges. The main objection put forward by Cockburn and accepted by the Committee was the objection to a partial measure. The particular question of homicide involved principles applying to other parts of the criminal law; and a partial treatment would only serve to introduce confusion and doubt. The Committee accordingly recommended that the Bill should be dropped. Fitzjames accepted this not as a reason for abandoning the attempt but for extending the scope of the proposed measure. The result will appear presently.

The change of Government was not altogether unfavourable. Early in March he received instructions from Lord Salisbury, who had succeeded the Duke of Argyll at the India Office, to consolidate the Acts relating to the government of India. He set to work with his usual energy, and a statement prefixed to the printed draft of the Bill is dated June 2, 1874. In less than three months he had done a big piece of work. The consolidation of these laws had been in contemplation in England and India for some time. Various preparations had been made by Government, including a draft of the proposed Act by Mr. Herman Merivale, then permanent undersecretary at the India Office. Fitzjames, however, had to go through the whole, and, as he laments, without such help as he could have commanded from his subordinates in India. He prepared an elaborate schedule showing every unrepealed section of every Act relating to India since 1770. The 'kernel of the law' was contained in eight Acts; the 'Regulating Act' of 1773, the Acts upon the successive renewal of the Company's charter, and the Acts passed upon the transference of the Company's powers to the Crown. As each of these had been superposed upon its predecessors without repealing them, it was necessary to go through them all to discover what parts were still in force; how far any law had been modified by later enactments, and what parts of the law it might be desirable to leave unaltered; and then to fuse the whole into unity. Fitzjames proposes to repeal forty-three Acts with the exception of certain sections, and to substitute for the repealed portions a single Act of 168 sections, shorter, as he remarks, than some of those repealed. The result would be to save a great deal of labour to hard-worked Indian officials, who required to know the precise limits of their authority; and the Act would form a complete constitutional code, determining the powers and the mutual relations of the whole Indian administrative and legislative system.

The draft was carefully criticised by the authorities. Fitzjames himself went through it again in the following January with Maine and Sir Erskine Perry, and it was finally made ready to be laid before Parliament. Lord Salisbury introduced in the following session a preparatory measure which would be incidentally required. This, however, was withdrawn in consequence, it seems, of objections made by the Legislative Council in India, and the whole code went to the usual limbo. I do not know what was the precise nature of the objection, but probably it was thought that the new law might stir up questions which it was better to leave in repose. Anyhow, nothing came of it. 'You have done your work and got your fee, and what more do you want?' observed a cynical friend. To which Fitzjames could only reply, ruefully enough, 'True, O King.'

This task interrupted another upon which he had been engaged, and which he took up again as soon as it was finished. He writes upon July 3, 1874, that his prospects have improved, and that he has therefore 'turned his mind to his books in real earnest.' They are a 'large family' and rather crowd upon him. However, his first enterprise will be 'a codification of the English law of contracts, founded upon the Indian Act, but larger and more elaborate in every way.' If the country takes to codifying (the dream had not yet vanished), this might become his profession. Anyhow, he will be able to give his mind to what he really cares for. He had been already hard at work upon his 'Contract Book' in the winter before he was instructed to prepare the Acts for the Government of India. This task, I may observe, had led him to study some of the German jurists. He had perfected his German with the help of a master in the summer of his return, and was now able to read the language comfortably. He expresses at first sight anything but acquiescence in German claims to philosophical pre-eminence, but after a time he comes to understand the respect which Austin professed for Savigny. His study of the Law of Contracts was apparently broken off by a renewed call to take up once more the Criminal Law. Of this I shall have to speak presently.

The reference just quoted to improved prospects is to be explained by an influx of parliamentary business which took place at this time. He was leading counsel in the session of 1874 for the London, Chatham and Dover Railway Company, and appeared for them in several cases. The impression which he made upon professional observers has been reported to me by more than one competent witness. It is such as may be foreseen. 'You are bringing your steam hammer to crack a nut again,' was the remark made to one of them by a friend. Admiration for his 'close reasoning, weighty argument, and high tone of mind,' is cordially expressed. He never threw a word away, always got to the core of a question, and drove his points well home. And yet he did not seem to be in the field best adapted for his peculiar gifts. He was too judicial, too reluctant to put a good face upon a bad cause, not enough of a rhetorician, and not sufficiently alert in changing front, or able to handle topics with the lightness of touch suitable to the peculiar tastes of a parliamentary Committee. Thus, though he invariably commanded respect, he failed to show the talent necessary for the more profitable, if not more exalted lines of professional success. Business still continued to present itself in the most tantalising form; it came in gushes and spurts, falling absolutely dead at one moment and then unexpectedly reviving. He had occasionally successful circuits; but failed to step into the vacant place made by the elevation to the bench of his old tutor, Lord Field, in 1875, and gradually went his rounds less regularly. Meanwhile a good deal of business of a different kind presented itself. At the end of 1874, I find him mentioning that he had eleven cases before the Judicial Committee of the Privy Council. He appeared in a good many colonial and Indian appeals, and afterwards, as I shall have occasion to notice, in certain ecclesiastical cases. I do not think, however, that I need dwell upon this part of his career.

One remark must be made. Fitzjames was still doomed to be an illustration of the curious disproportion which may exist between a man's intrinsic power and his fitness for professional success. Still, as at college, he was distanced in the race by men greatly his inferiors in general force of mind, but better provided with the talent for bringing their gifts to market. Such a position was trying, for it was inevitable that he should be himself more conscious of his abilities than of his limitations. His incapacity for acquiring the dexterities by which men accommodate themselves to their neighbours' wants implied a tendency rather to under-estimate the worth, whatever it may be, of such dexterities. The obstacle to his success was just the want of appreciation of certain finer shades of conduct, and therefore remained unintelligible to himself. He was like a painter of very keen and yet narrowly limited vision, who could not see the qualities which lead people to prefer the work of a long-sighted man. Yet he not only never lost heart, but, so far as I can discover, was never for a moment querulous or soured. He was never for an instant in danger of becoming a 'man with a grievance.' He thought, of course, that his views were insufficiently appreciated; but he complained, not of individuals, but of general causes which were practically irremovable, and against which it was idle to fret. If, in writing to his closest friends, he indulges in a momentary grumble over the 'bursting of a bubble,' he always adds that he is ashamed of himself for the feeling, and emphatically declares himself to be one of the happiest and most fortunate of men. When, therefore, I report his various disappointments, I must be understood to imply that they never lowered his courage even in the most trifling degree, or threw over his course more than such passing fits of shadow as even the strongest man must sometimes traverse. Nobody could have been cheerier, more resolute, or more convinced that his lines had fallen in pleasant places.


Here I shall notice some of the employments in which he found distraction from the various worries of his career. In the first place, he had a boundless appetite for books. When he returned from India he rubbed up his old classical knowledge; and, though he had far too much sense to despise the help of 'cribs,' he soon found himself able to get on pretty well without them. He mentions a number of authors, Homer, for example, and Aeschylus, who supplied a motto for 'Liberty, Equality, Fraternity '; he reads Demosthenes, partly with a view to Greek law; dips into Plato and Aristotle, and is intensely interested by Cicero's 'De Natura Deorum.' He declares, as I have said, that he cared little for literature in itself; and it is no doubt true that he was generally more interested in the information to be got from books than in the mode of conveying it. This, however, increases his appetite for congenial works. He admires Gibbon enthusiastically; he has read the 'Decline and Fall' four or five times, and is always wishing to read it again. He can imagine no happier lot than to be able to devote oneself to the completion of such a book. He found it hard, indeed, to think of a novel or a poem as anything but a trifling though fascinating amusement. He makes an unfavourable criticism upon a novel written by a friend, but adds that it is 'not really unfavourable.' 'A great novel,' he explains, 'a really lasting work of art, requires the whole time and strength of the writer, ... and X. is too much of a man to go in for that.' After quoting Milton's 'Lycidas' and 'Christmas Hymn,' which he always greatly admired, he adds that he is 'thankful that he is not a poet. To see all important things through a magnifying glass of strange brilliant colours, and to have all manner of tunes continually playing in one's head, and I suppose in one's heart too, would make one very wretched.' A good commonplace intellect satisfied with the homely food of law and 'greedily fond of pastry in the form of novels and the like, is—well, it is at all events, thoroughly self-satisfied, which I suppose no real poet or artist ever was.' Besides, genius generally implies sensitive nerves, and is unfavourable to a good circulation and a thorough digestion. These remarks are of course partly playful, but they represent a real feeling. A similar vein of reflection appears to have suggested a comment upon Las Casas' account of Napoleon at St. Helena. It is 'mortifying' to think that Napoleon was only his own age when sent to St. Helena. 'It is a base feeling, I suppose, but I cannot help feeling that to have had such gifts and played such a part in life would be a blessing and a delight greater than any other I can think of. I suppose the ardent wish to be stronger than other people, and to have one's own will as against them, is the deepest and most general of human desires. If it were a wish which fulfilled itself, how very strong and how very triumphant I should be;—but it does not.' For this atrocious wish, I must add, he apologises amply in a later letter. It is merely a passing velleity. In truth it represents his version of Carlyle's doctrine about the superiority of silence to speech, or rather of the active to the contemplative life. The career of a great conqueror, a great legislator, a man who in any capacity has moulded the doctrines of the race, had a charm for his imagination which he could not find in the pleasant idlers, who beguile our leisure by singing songs and telling stories.

Men who affect the religions of mankind belong rather to the active than the contemplative class. Nobody could estimate more highly the importance of philosophical speculations upon the great problems of life. To write a book which should effectively present his own answer to those problems was his permanent ambition. Even in going to India, he said, he had been moved partly by the desire of qualifying himself by fresh experience for such a work, which had been consciously before him ever since he left college. He was never able to carry out the plan which was very frequently in his thoughts. Certain articles, however, written about this time, sufficiently indicate his general conclusions, and I therefore shall here give some account of them. They were all more or less connected with that curious body called the 'Metaphysical Society.'

A description of this institution was given in the 'Nineteenth Century' for August 1885 by Mr. R. H. Hutton, who represents the discussions by an imaginary conversation between the chief debaters. Mr. Knowles prefixed a brief historical account. The Society was founded in consequence of a conversation between Tennyson and Mr. Knowles, and held its first meeting on April 21, 1869. Fitzjames joined it after his return from India. The scheme of the founders was to provide an arena in which the most important religious problems should be discussed with the same freedom with which other problems are, or ought to be discussed in the learned and scientific societies. Perhaps some light might be thrown upon the question whether we have immortal souls, in which Tennyson was much interested. Many very distinguished men became members, and after a friendly dinner discussed papers which had been circulated for consideration. Cardinal Manning, W. G. Ward, and Father Dalgairns were the chief representatives of Catholicism; Professors Huxley, Tyndall, and W. K. Clifford of a scientific agnosticism; Mr. Frederic Harrison of Positivism; and Dr. Martineau, Mr. Ruskin, Mr. R. H. Hutton, of various shades of rational theology. There were others, such as Mark Pattison and Professor Henry Sidgwick, whom I should shrink from putting into any definite class. Mr. Gladstone, Lord Selborne, and Fitzjames may perhaps be described as intelligent amateurs, who, though occupied with more practical matters, were keenly interested in philosophical speculations. These names are enough to show that there was no lack of debating talent.

Fitzjames took the liveliest interest in these discussions, to which at various times he contributed papers upon 'necessary truths,' 'mysteries,' the 'proof of miracles,' the 'effect upon morality of a decline in religious faith,' and the 'utility of truth.' He enjoyed some vigorous encounters with various opponents: and according to Mr. Hutton his 'mighty bass' exercised 'a sort of physical authority' over his hearers. The meetings were of course strictly private; and reports of the debates, had reports been possible, would have been a breach of confidence. Yet as the Society has excited a certain interest, I will venture to record part of my impressions. I was not a member of the Society in its early, and, as I take it, most flourishing days; and I only once, for example, heard a few words from W. G. Ward, who was then one of the more conspicuous interlocutors. But I had the honour of membership at a later period, and formed a certain estimate of the performances.

I remarked, in the first place, what was not strange, that nobody's preconceived opinions were changed, nor even, so far as I know, in the smallest degree affected by the discussions. Nor were they calculated to affect any serious opinions. Had any young gentleman been present who had sat at the feet of T. H. Green or of Professor Sidgwick, and gained a first class at either University, he would, as I always felt, have remarked that the debaters did not know what they were talking about. So far as the discussions were properly metaphysical, the remark would have been more than plausible. With certain conspicuous exceptions, which I shall not specify, it was abundantly clear that the talk was the talk of amateurs, not of specialists. I do not speak from conjecture when I say, for example, that certain eminent members of the Society had obviously never passed that 'asses' bridge' of English metaphysics, the writings of Bishop Berkeley, and considered his form of idealism, when it was mentioned, to be a novel and startling paradox. It was, I fancy, a small minority that had ever really looked into Kant; and Hegel was a name standing for an unknown region wrapped in hopeless mist. This would be enough to disenchant any young gentleman fresh from his compendiums of philosophy. Persons, he would think, in so hopeless a state of ignorance could no more discuss metaphysics to any purpose than men who had never heard of the teaching of Newton or Darwin could discuss astronomy or biology. It was, in fact, one result of the very varying stages of education of these eminent gentlemen that the discussions became very ambiguous. Some of the commonest of technical terms convey such different meanings in different periods of philosophy that people who use them at random are easily set at hopelessly cross-purposes.... 'Object' and 'subject,' 'intuition,' 'experience,' and so forth, as used by one set of thinkers, are to others like words in an unknown language which they yet do not know to be unknown.

If metaphysics were really a separate and independent science upon which experts alone had a right to speak, this remark would be a sufficient criticism of the Society. It called itself metaphysical, and four out of five of its members knew nothing of metaphysics. A defence, however, might be fairly set up. Some of the questions discussed were independent of purely metaphysical inquiries. And it may be denied, as I should certainly deny, that experts in metaphysics have any superiority to amateurs comparable to that which exists in the established sciences. Recent philosophers have probably dispersed some fallacies and cleared the general issues; but they are still virtually discussing the old problems. To read Plato, for example, is to wonder almost equally at his entanglement in puerile fallacies and at his marvellous perception of the nature of the ultimate and still involved problems. If we could call up Locke or Descartes from the dead in their old state of mind, we might still be instructed by their conversation, though they had never heard of the later developments of thought. And, for a similar reason, there was a real interest in the discussion of great questions by political, or legal, or literary luminaries, who had seen men and cities and mixed in real affairs and studied life elsewhere than in books, even though as specialists they might be probably ignorant. The difference was rather, perhaps, a difference of dialect than of substance. Their weapons were old-fashioned; but the main lines of attack and defence were the same.

Another criticism, however, was obvious, and is, I think, sufficiently indicated in Mr. Hutton's imaginary conversation. The so-called discussions were necessarily in the main a series of assertions. Each disputant simply translated the admitted facts into his own language. The argument came to saying, I say ditto to Hume, or to Comte, or to Thomas Aquinas. After a brief encounter, one man declared that he believed in God, and his opponent replied, I don't. It was impossible really to get further. It was not a difference between two advocates agreed upon first principles and disputing only some minor corollary, but a manifestation of different modes of thought, and of diverging conceptions of the world and of life, which had become thoroughly imbedded in the very texture of the speaker's mind. When it is a question of principles, which have been the battle-ground of generations; when every argument that can be used has been worked out by the subtlest thinkers of all times, a dispute can really come to nothing but saying, I am of this or that turn of mind. The real discussion of such questions is carried on by a dialectical process which lasts through many generations, and is but little affected by any particular champion. Thus the general effect necessarily was as of men each securely intrenched in his own fastness, and, though they might make sallies for a little engagement in the open, each could retreat to a position of impregnable security, which could be assaulted only by long siege operations of secular duration.

It was, I fancy, a gradual perception of these difficulties which led to the decay of the Society. Meanwhile there were many pleasant meetings, and, if the discussions came to be little more than a mutual exhibition to each other of the various persons concerned, I hope and believe that each tended to the conviction that his antagonist had neither horns nor hoofs. The discussions, moreover, produced a considerable crop of Magazine articles; and helped to spread the impression that certain very important problems were being debated, upon the decision of which immense practical consequences might depend. It might be curious to inquire how far the real interest in these arguments extended, and whether the real state of the popular mind is a vivid interest in the war between scientific theories and traditional beliefs, or may more fitly be described as a languid amusement in outworn problems. Fitzjames, at any rate, who always rejoiced, like Cromwell's pikemen, when he heard the approach of battle, thought, as his letters show, that the forces were gathering on both sides and that a deadly struggle was approaching. The hostility between the antagonists was as keen as it had been in the sixteenth and seventeenth centuries, though covered for the present by decent pretences of mutual toleration. He contributed during this period a paper upon Newman's 'Grammar of Assent' to 'Fraser's Magazine'; and he wrote several articles, partly the product of the Metaphysical Society, in the 'Contemporary Review' and the 'Nineteenth Century,' both under the editorship of Mr. Knowles.

I shall speak of them so far as they illustrate what was, I think, his definite state of mind upon the matters involved. His chief encounters were with Cardinal Manning ('Contemporary Review,' March and May 1874), and with W. G. Ward ('Contemporary Review,' December 1874), and with Mr. Gladstone ('Nineteenth Century,' April 1877). The controversy with Mr. Gladstone turned upon certain points raised in Sir G. C. Lewis's book upon 'Authority in Matters of Opinion.' The combatants were so polite, and their ultimate difference, which was serious enough, was so mixed up with discussions of Lewis's meaning, that a consideration of the argument would be superfluous. The articles directed against Manning, to which his antagonist replied in succeeding numbers of the Review, were of more interest. The essence of Fitzjames's argument was a revival of his old challenge to Newman. He took occasion of a pamphlet by Manning to ask once more the very pertinent question: You claim to represent an infallible and supernatural authority which has indefeasible rights to my allegiance; upon what grounds, then, is your claim based? To establish it, you have first to prove that we have such a knowledge of God as will enable us to draw special inferences as to particular institutions; next, that Christ was an incarnation of that God; then, that Christ founded a particular institution; and, finally, that the institution was identical with the Catholic Church. The argument covers a very wide ground; and I think that Fitzjames never wrote with more concentrated vigour. I have a certain difficulty in speaking of Manning's reply; because it has apparently come to be understood that we are bound to pay insincere compliments to a good man's understanding when he disagrees with our views. Now I am quite willing to admit that Manning was a most amiable and well-meaning person; but I am unable to consider him seriously as a reasoner. The spectacle which he presented on this occasion, at least, was that of a fluent popular preacher, clutched by a powerful logician, and put into a witness-box to be thoroughly cross-examined. The one quality I can discover in his articles is a certain dexterity in evading plain issues and covering inconsistencies by cheap rhetoric. The best suggestion to be made on his side would be that he was so weak an advocate that he could not do justice to the argument.

The controversy with W. G. Ward was of different character. Ward, with his usual courtesy to intellectual antagonists, had corresponded with Fitzjames, in whose writings he was much interested. He now challenged his opponent to republish a paper upon 'necessary truths,' which had been read to the Metaphysical Society. Fitzjames accordingly reproduced it with a comment, and Ward replied in the next number. Ward was undoubtedly a man of much dialectical ability, and, I think, in some directions more familiar than his opponent with metaphysical subtleties. Fitzjames considered himself to have had the best of the argument, and says that the 'Tablet' admitted his superiority. I presume, however, that Ward would have returned the opposite verdict. I am the less inclined to pronounce any opinion because I believe that most competent people would now regard the whole discussion as turning upon a false issue. In fact, it was the old question, so eagerly debated by J. S. Mill and Ward, as to the existence of intuitions and 'necessary truths.' Neither Mill's empiricism nor Ward's belief in intuitions 'in the sense required' would, I fancy, be now regarded as satisfactory. I think that Fitzjames was greatly superior in vigour of expression; but the argument is not one to be answered by a single Yes or No.

I cannot even touch such controversies here. My only desire is to indicate Fitzjames's intellectual attitude. It is sufficiently manifest in these articles. He argues that Ward's position is really suicidal. Certain things are pronounced by Ward to be impossible even for Omnipotence—as, for example, to make a trilateral figure which shall not be also triangular. Carry out this view, says Fitzjames, and you make our conceptions the measure of reality. Mysteries, therefore, become nonsense, and miracles an impossibility. In fact, Ward's logic would lead to Spinoza, not to the deity of Catholic belief. Ward might retort that Fitzjames's doctrines would lead to absolute scepticism or atheism. Fitzjames, in fact, still accepts Mill's philosophy in the fullest sense. All truth, he declares, may be reduced to the type, 'this piece of paper is blue, and that is white.' In other words, it is purely empirical and contingent. The so-called intuitive truths 'two and two make four' only differ from the truth, 'this paper is white' in that they are confirmed by wider experience. All metaphysical verbiage, says Fitzjames, whether Coleridge's or Ward's, is an attempt to convert ignorance into superior kind of knowledge, by 'shaking up hard words in a bag.' Since all our knowledge is relative to our faculties, it is all liable to error. All our words for other than material objects are metaphors, liable to be misunderstood—a proposition which he confirms from Horne Tooke's nominalism. All our knowledge, again, supposes memory which is fallible. All our anticipations assume the 'uniformity of nature,' which cannot be proved. And, finally, all our anticipations also neglect the possibility that new forces of which we know nothing may come into play.

Such convictions generally imply agnosticism as almost a necessary consequence. They might seem to show that what I have called the utilitarian element in his thoughts had effectually sapped the base of the Puritanic element. I certainly think that this was to some extent the case. Fitzjames had given up the belief that the Gospel narrative could be proved after the Paley method, and that was the only method which, according to him, was legitimate. He had, therefore, ceased to believe in the historical truth of Christianity. After going to India he did not take part in church services, and he would not, I am sure, have used such language about his personal convictions as he used in all sincerity at the time of the 'Essays and Reviews' controversy. In short, he had come to admit that no belief in a supernatural revelation could be maintained in the face of modern criticism. He often read Renan with great interest; Renan, indeed, seemed to him to be sentimental, and too favourable to the view that a religion might have a certain artistic value independent of its truth. But he was as far as Renan or as the most thorough-going of historical critics from believing in the divinity of Christ or the truth of the Christian inspiration. But, in spite of this, he still held to his version of the doctrine of probability. It is summed up in Pascal's famous il faut parier. We can neither put aside the great religious questions nor give a positive answer to them. We must act on the hypothesis that one answer or the other is true; but we must not allow any juggling to transmute a judgment of probability into an undoubting conviction of truth. There are real arguments on both sides, and we must not ignore the existence of either. In the attack upon Manning he indicates his reasons for believing in a God. He accepts the argument from final causes, which is, of course, the only argument open to a thorough empiricist, and holds that it is not invalidated, though it is, perhaps, modified by recent scientific inquiries. It is probable, therefore, that there is a God, though we cannot regard the point as proved in such a sense as to afford any basis for expecting or not expecting a revelation. On the contrary, all analogy shows that in theological, as in all other matters, the race has to feel its way gradually to truth through innumerable errors. In writing to a friend about the Manning article he explains himself more fully. Such articles, he says, give a disproportionate importance to the negative side of his views. His positive opinions, if 'vague, are at least very deep.' He cannot believe that he is a machine; he believes that the soul must survive the body; that this implies the existence of God; that those two beliefs make 'the whole difference between the life of a man and the life of a beast.' The various religions, including Christianity, try to express these beliefs, and so long as they are honestly and simply believed are all good in various degrees. But when the creeds are held on the ground of their beauty or utility, not on the ground of their demonstrable truth, they become 'the most corrupt and poisonous objects in the world, eating away all force, and truth, and honour so far as their influence extends.' To propose such beliefs on any ground but the ground of truth, 'is like keeping a corpse above ground because it was the dearest and most beloved of all objects when it was alive.' He does not object to authority as such. He has no objection to follow a doctor's directions or to be loyal to an official superior, and would equally honour and obey anyone whom he could trust in religious questions. But he has never found such a guide. 'A guide is all very well if he knows the way, but if he does not, he is the most fatal piece of luggage in the world.'

To use his favourite language, therefore, he still regarded a 'sanction' as absolutely necessary to the efficacy of moral or religious teaching. His constant criticism upon positivists and agnostics is that their creeds afford no satisfactory sanction. They cannot give to the bad man a reason for being good. But he was equally opposed to sham sanctions and sham claims to authority. As a matter of fact, his attack upon such claims led most people to classify him with the agnostics. Nor was this without reason. He differed less in reality, I think, from Professor Huxley or Mr. Harrison than from Ward or Cardinal Manning. In the arguments at the 'Metaphysical Society' he was on the left wing as against both Catholics and the more or less liberal theologians, whose reasoning seemed to him hopelessly flimsy. His first principles in philosophy were those of the agnostics, and in discussing such principles he necessarily took their part. He once told Mr. Harrison that he did not wish to have any more controversies with him, because dog should not fight dog. He sympathised as heartily as any man could do in the general spirit of rationalism and the desire that every belief should be the outcome of the fullest and freest discussions possible. Every attempt to erect a supernatural authority roused his uncompromising antagonism. So long as people agreed with him upon that point, they were at one upon the main issue. His feeling was apparently that expressed in the old phrase that he would go with them as far as Hounslow though he did not feel bound to go to Windsor.

Writing a few months later to the same correspondent, he observes that the difference between them is partly a difference of character. Circumstances have developed in him a 'harsh and combative way of thinking and writing in these matters.' Yet he had felt at times that it required so much 'effort of will to face dreary and unpleasant conclusions' that he could hardly keep his mind in the direction, or what he thought the direction, of truth without much pain. He could happily turn to neutral subjects, and had (I rather doubt the accuracy of the phrase) 'a peculiarly placid turn of mind.' He admits that a desire for knowledge is right and inevitable, but all experience shows our fallibility and the narrow limits of our knowledge. We know, however, that 'we are bound together by innumerable ties, and that almost every act of our lives deeply affects our friends' happiness.' The belief again (in the sense always of belief of a probability) in the fundamental doctrines of God and a future state imposes an 'obligation to be virtuous, that is, to live so as to promote the happiness of the whole body of which I am a member. Is there,' he asks, 'anything illogical or inconsistent in this view?'

At any rate, it explains his 'moral indignation' against Roman Catholicism. In the first place, Catholicism claims 'miraculous knowledge' where there should be an honest confession of ignorance. This original vice has made it 'to the last degree dishonest, unjust, and cruel to all real knowledge.' It has been the enemy of government on rational principles, of physical science, of progress in morals, of all knowledge which tends to expose its fundamental fallacies. Its theological dogmas are not only silly but immoral. The doctrines of hell, purgatory, and so forth, are not 'mysteries,' but perfectly unintelligible nonsense, first representing God as cruel and arbitrary, and then trying to evade the consequence by qualifications which make the whole 'a clumsy piece of patchwork.' God the Father becomes a 'stern tyrant,' and God the Son a 'passionate philanthropist.' Practically his experience has confirmed this sentiment. He does 'really and truly love, at all events, a large section of mankind, though pride and a love of saying sharp things have made me, I am sorry to say, sometimes write as if I did not,' and whatever he has tried to do, he has found the Roman Catholic Church 'lying straight across his path.' Men who are intellectually his inferiors and morally 'nothing at all extraordinary,' have ordered him to take for granted their views upon law, morals, and philosophy, and when he challenges their claim can only answer that he is wicked for asking questions.

He fully admits the beauty of some of the types of character fostered by the Roman Catholic Church, although they imply a false view of certain Cardinal points of morality, and argues that to some temperaments they may have a legitimate charm. But that does not diminish the strength of his convictions that the dogmas are radically absurd and immoral, or that the whole claim to authority is opposed to all rational progress. In the Manning articles he ends by accepting the issue as between the secular view and the claims of a priesthood to authority. In the last resort it is a question whether State or Church shall rule. He prefers the State, because it has more rational aims, uses more appropriate means, has abler rulers, produces verifiable results, and has generally 'less nonsense about it.' The clergy are 'male old maids'; often very clever, charitable, and of good intentions, but totally devoid of real wisdom or force of mind or character, and capable on occasions of any amount of spite, falsehood, and 'gentle cruelty.' It is impossible to accept the claims of the priesthood to supernatural authority. If ultimately a division has to be made, human reason will have to decide in what shape the legal sanction, 'or, in other words, disciplined and systematic physical force,' shall be used. We shall then come to the ultima ratio, after all compromises have been tried. There may be an inevitable conflict. The permanent principles of nature and society, which are beyond all laws, will decide the issue. But Manning's is a mere quack remedy.

This represents one aspect of Fitzjames's character. The struggle which is going on is a struggle between priest and layman, mysticism and common sense, claims to supernatural authority and clear downright reasoning from experience, and upon all grounds of theory and practice he is unequivocally on the side of reason. I need only add a remark or two. In the first place, I think that he never materially altered this position, but he was rather less inclined after a time to take up the cudgels. He never lost a conviction of the importance of his 'sanction.' He always held to the necessity of some kind of religious belief, although the precise dogma to be maintained became rather more shadowy. But, as the discussion went on, he saw that in practice his own standing-ground was becoming weaker. The tendency of men who were philosophically on his own side was to regard the whole doctrine of a future life as not only beyond proof but beyond all legitimate speculation. Hence he felt the force of the dilemma to which he was exposed. A genuine religion, as he says in a remarkable letter, must be founded, like all knowledge, on facts. Now the religions which include a theology rest on no facts which can stand criticism. They are, therefore, doomed to disappear. But the religions which exclude theology—he mentions Buddhism and Positivism as examples—give no adequate sanction. Hence, if theology goes, the moral tone of mankind will be lowered. We shall become fiercer, more brutal, more sensual. This, he admits, is a painful and even a revolting conclusion, and he therefore does not care to enlarge upon it. He is in the position of maintaining that a certain creed is at once necessary to the higher interests of mankind, and incapable of being established, and he leaves the matter there.

I may just add, that Fitzjames cared very little for what may be called the scientific argument. He was indifferent to Darwinism and to theories of evolution. They might be of historical interest, but did not affect the main argument. The facts are here; how they came to be here is altogether a minor question. Oddly enough, I find him expressing this opinion before the 'Origin of Species' had brought the question to the front. Reviewing General Jacob's 'Progress of Being' in the 'Saturday Review 'of May 22, 1858, he remarks that the argument from development is totally irrelevant. 'What difference can it make,' he asks, 'whether millions of years ago our ancestors were semi-rational baboons?' This, I may add, is also the old-fashioned empirical view. Mill, six years later, speaks of Darwin's speculations, then familiar enough, with equal indifference. In this, as in other important matters, Fitzjames substantially adhered to his old views. To many of us on both sides theories of evolution in one form or other seem to mark the greatest advance of modern thought, or its most lamentable divergence from the true line. To Fitzjames such theories seemed to be simply unimportant or irrelevant to the great questions. Darwin was to his mind an ingenious person spending immense labour upon the habits of worms, or in speculating upon what may have happened millions of years ago. What does it matter? Here we are—face to face with the same facts. Fitzjames, in fact, agreed, though I fancy unconsciously, with Comte, who condemned such speculations as 'otiose.' To know what the world was a billion years ago matters no more than to know what there is on the other side of the moon, or whether there is oxygen in the remotest of the fixed stars. He looked with indifference, therefore, upon the application of such theories to ethical or political problems. The indication is, I think, worth giving; but I shall say nothing as to my own estimate of the importance of the theories thus disregarded.


I return to the sphere upon which Fitzjames spent his main energies, and in which, as I think, he did his most lasting work. Three months of the spring of 1874 had been spent in consolidating the laws relating to the government of India. About the same time, I may observe parenthetically, he had a scheme for publishing his speeches in the Legislative Council; and, at one period, hoped that Maine's might be included in the volume. The publishers, however, declined to try this experiment upon the strength of the English appetite for Indian matters; and the book was dropped. He returned for a time to the Contract Law; but must soon have given up the plan. He writes on September 23, 1874, that Macmillan has applied to him for a new edition of his 'Criminal Law'; and that he has been reading for some time with a view to it. He has been labouring through 3,000 royal 8vo. pages of 'Russell on Crimes.' They are full of irrelevant illustrations; and the arrangement is 'enough to make one go crazy.' The 'plea of autrefois acquit comes at the end of a chapter upon burglary'—a fact to make even the ignorant shudder! He would like to put into his book a penal code, a code of criminal procedure, and an evidence code. 'I could do it too if it were not too much trouble, and if a large part of the law were not too foolish to be codified.' He is, however, so convinced of the impracticability of parliamentary help or of a commission that he is much inclined to try. A fortnight later (October 8) he has resolved to convert his second edition into a draft penal code and code of criminal procedure.

The work grew upon his hands.[168] He found crudities in the earlier work and a difficulty in stating the actual law from the absence of any adequate or tolerably arranged text-book. Hence he resolved to make such a book for himself, and to this task he devoted nearly all of what he humorously called his leisure during the later part of 1874 and the whole of 1875 and 1876. Moreover, he thought for a time that it would be desirable to add full historical notes in order to explain various facts of the law. These, however, were ultimately set aside and formed materials for his later history. Thus the book ultimately took the form simply of a 'Digest of the Criminal Law,' with an explanatory introduction and notes upon the history of some of the legal doctrines involved. It was published in the spring of 1877,[169] and, as he says in a letter, it represented the hardest work he had ever done.

It coincided in part with still another hard piece of work. In December 1875 he was appointed Professor of Common Law at the Inns of Court. He chose for the subject of his first course of lectures the law of evidence. His Indian Code and the bill introduced by Coleridge in 1873 had made him thoroughly familiar with the minutiae of the subject. Here again he was encountered by the same difficulty in a more palpable shape. A lecturer naturally wishes to refer his hearers to a text-book. But the only books to which he could refer his hearers filled thousands of pages, and referred to many thousands of cases. The knowledge obtained from such books and from continual practice in court may ultimately lead a barrister to acquire comprehensive principles, or at least an instinctive appreciation of their application in particular cases. But to refer a student to such sources of information would be a mockery. He wants a general plan of a district, and you turn him loose in the forest to learn its paths by himself. Fitzjames accordingly set to work to supply the want by himself framing a 'digest' of the English Law of Evidence. Here was another case of 'boiling down,' with the difficulty that he has to expound a law—and often an irrational law—instead of making such a law as seems to him expedient. He undoubtedly boiled his materials down to a small size. The 'Digest' in a fourth edition contains 143 articles filling 155 moderate pages, followed by a modest apparatus of notes. I believe that it has been found practically useful, and an eminent judge has told me that he always keeps it by him.

Fitzjames held his office of professor until he became a judge in 1879. He had certainly one primary virtue in the position. He invariably began his lecture while the clock was striking four and ceased while it was striking five. He finally took leave of his pupils in an impressive address when they presented him with a mass of violets and an ornamental card from the students of each inn, with a kindly letter by which he was unaffectedly gratified. His class certainly had the advantage of listening to a teacher who had the closest practical familiarity with the working of the law, who had laboured long and energetically to extract the general principles embedded in a vast mass of precedents and technical formulas, and who was eminently qualified to lay them down in the language of plain common sense, without needless subtlety or affectation of antiquarian knowledge. I can fully believe in the truth of Sir C. P. Ilbert's remark that whatever the value of the codes in other respects, their educational value must be considerable. They may convince students that law is not a mere trackless jungle of arbitrary rules to be picked up in detail, but that there is really somewhere to be discovered a foundation of reason and common sense. It was one of Fitzjames's favourite topics that the law was capable of being thus exhibited; and that fifty years hence it would be a commonplace that it would be treated in a corresponding spirit, and made a beautiful and instructive branch of science.

The publication of these two books marked a rise in his general reputation. In the introduction to the 'Digest of the Criminal Law' he refers to the rejection of his 'Homicide Bill.' The objections then assigned were equivalent to a challenge to show the possibility of codifying. He had resolved to show the possibility by actually codifying 'as a private enterprise.' The book must therefore be regarded as 'an appeal to the public at large' against the judgment passed upon his undertaking by Parliament and by many eminent lawyers. He does not make the appeal 'in a complaining spirit.' The subject, he thinks, 'loses nothing by delay,' and he hopes that he has improved in this book upon the definitions laid down in his previous attempts. In connection with this I may mention an article which he contributed to the 'Nineteenth Century' for September 1879 upon a scheme for 'improving the law by private enterprise.' He suggests the formation of a Council of 'legal literature,' to co-operate with the Councils for law-reporting and for legal education. He sketches various schemes, some of which have been since taken up, for improving the law and legal knowledge. Digests of various departments of the law might be of great service as preparing the way for codification and illustrating defects in the existing state of the law. He also suggests the utility of a translation of the year-books, the first sources of the legal antiquary; a continuation of the State Trials, and an authentic collection of the various laws of the British Empire. Sir C. P. Ilbert has lately drawn attention to the importance of the last; and the new State Trials are in course of publication. The Selden Society has undertaken some of the antiquarian researches suggested.

Meanwhile his codification schemes were receiving a fresh impulse. When preparing the 'Digest,' he reflected that it might be converted into a penal code. He communicated this view to the Lord Chancellor (Cairns) and to Sir John Holker (afterwards Lord Justice Holker), then Attorney-General. He rejoiced for once in securing at last one real convert. Sir John Holker, he says, appreciated the scheme with 'extraordinary quickness.' On August 2, 1877, he writes that he has just received instructions from the Lord Chancellor to draw bills for a penal code, to which he was soon afterwards directed to add a code of criminal procedure. He set to work, and traversed once more the familiar ground. The 'Digest,' indeed, only required to be recast to be converted into a code. The measure was ready in June and was introduced into Parliament by Sir John Holker in the session of 1878. It was received favourably, and he reports that the Chancellor and the Solicitor-General, as well as the Attorney-General, have become 'enthusiastic' in their approbation. The House of Commons could not spare from more exciting occupations the time necessary for its discussion. A Commission, however, was appointed, consisting of Lord Blackburn, Mr. Justice Barry, Lord Justice Lush, and himself to go into the subject. The Commission sat from November 1878 to May 1879, and signed a report, written by Fitzjames, on June 12, 1879. They met daily for over five months, discussed 'every line and nearly every word of every section,' carefully examined all the authorities and tested elaborately the completeness of the code. The discussions, I gather, were not so harmonious as those in the Indian Council, and his letters show that they sometimes tried his temper. The ultimate bill, however, did not differ widely from the draft produced by Fitzjames, and he was glad, he says,[170] that these thorough discussions brought to light no serious defect in the 'Digest' upon which both draft-codes were founded. The report was too late for any action to be taken in the session of 1879. Cockburn wrote some observations, to which Fitzjames (now a judge) replied in the 'Nineteenth Century' of January 1880. He was studiously courteous to his critic, with whom he had some agreeable intercourse when they went the next circuit together. I do not know whether the fate of the measure was affected by Cockburn's opinion. In any case the change of ministry in 1880 put an end to the prospects of the code for the time. In 1882, to finish the story, the part relating to procedure was announced as a Government measure in the Queen's speech. That, however, was its last sign of life. The measure vanished in the general vortex which swallows up such things, and with it vanished any hopes which Fitzjames might still entertain of actually codifying a part of English law.


Fitzjames's professional practice continued to be rather spasmodic; important cases occurring at intervals, but no steady flow of profitable work setting in. He was, however, sufficiently prosperous to be able to retire altogether from journalism. The 'Pall Mall Gazette' during his absence had naturally got into different grooves; he had ceased to sympathise with some of its political views; and as he had not time to throw himself so heartily into the work, he could no longer exercise the old influence. A few articles in 1874 and 1875 were his last contributions to the paper. He felt the unsatisfactory nature of the employment. He calculates soon afterwards that his collected works would fill some fifty volumes of the size of 'Liberty, Equality, Fraternity,' and he is anxious to apply his energy to less ephemeral tasks. His profession and his codes gave him work enough.

His most remarkable professional employment arose out of certain ecclesiastical cases. Sir Francis Jeune, who was concerned in some of them, has kindly described his impressions to me. Fitzjames's connection with certain prosecutions directed against the ritualists arose from a conversation between Sir F. Jeune, who was then junior counsel to the English Church Union, and its secretary the late Sir Charles Young. A counsel was required who should unite 'plenty of courage' to an intimate knowledge of the Criminal Law and power of appreciating the results of historical research. Fitzjames 'combined these requirements in a wonderful way.' Sir F. Jeune makes reservations similar to those which I have had to notice in other applications, as to Fitzjames's want of the subtlety and closeness of reasoning characteristic of the greatest lawyers. He saw things 'rather broadly,' and his literary habits tended to distract him from the precise legal point. 'I always thought of his mind,' says Sir Francis, 'as of a very powerful telescope pulled out just a little too much.' The sharp definitions, perceptible sometimes to inferior minds, were in his a little blurred. These peculiarities, however, were even advantages in this special class of business. The precedents and principles involved were rather vague, and much of the work within the province rather of the historian than of the lawyer. It involved questions as to the spirit in which the articles and rubrics had been composed by their authors. The requirement of 'courage' was amply satisfied. 'I shall never forget,' says Sir Francis, 'one occasion' in which Fitzjames was urged to take a course which he thought improper, though it was not unnaturally desired by irritated clients fighting against what they considered to be harsh legal restraint. Fitzjames at once made it clear that no client should make him deviate from the path of professional propriety. He had, in fact, indignantly refused, as I find from one of his letters, to adopt a position which implied distrust of the impartiality of the judges.

Of the cases themselves I must say generally that they often provoked a grim smile from the advocate. When, in earlier days, he had defended Dr. Williams he had spoken not merely as an advocate, but as a man who had felt that he was vindicating the intellectual liberty of the Church of which he was a member. The cases in which he was now concerned could appeal to him only as an advocate. The first in which he appeared, February 16, 1876, was sufficiently grotesque.[171] A clergyman had refused to administer the sacrament to a gentleman who had published a volume of 'Selections' from the Bible—implying, it was suggested, that he did not approve of the part not selected—and who had his doubts about the devil. The clergyman was reported to have said, 'Let him sit down and write a calm letter, and say he believes in the devil, and I will give him the sacrament.' The only legitimate causes in a legal sense for refusing the sacrament would be that a man was an 'open and notorious evil liver,' or a 'common and notorious depraver of the Book of Common Prayer.' The Court of Arches apparently held that the gentleman came under this description; but the Judicial Committee of the Privy Council, after hearing Fitzjames, decided that he did not. A man might disbelieve in the devil, without being a 'notorious evil liver,' however irrational may be his scepticism.

The most important of his appearances was in the Folkestone case.[172] His 'opening argument, and even more his reply' (upon the appeal), 'were masterpieces, and they obtained from the Privy Council a judgment in very marked contrast to those which had preceded it.' His argument, as Sir F. Jeune thinks, induced the Privy Council to some extent 'to retrace, or at least seem to retrace, its steps.' The judgment sanctioned what is known as the 'Eastern position,' and certain other ritualistic practices. In another case,[173] it was decided, in accordance with Fitzjames's argument, that a sculptured representation of the Crucifixion, as opposed to the exhibition of a crucifix, was lawful.

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