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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Fitzjames, in his letters at this time, gives his own view pretty emphatically. While you, he says to Lord Lytton, (I shall speak of this correspondence directly) 'are fighting with famine in India, I am struggling over albs and chasubles, and superstitions not more reasonable than those about Vishnu and Shiva.' 'I have been passionately labouring for the last nine days' (he says a little later in regard to the Folkestone case) 'for the liberty of the clergy to dress themselves in certain garments and stand in particular attitudes. All my powers of mind and body were devoted to these important objects, till I dreamed of chasubles and wafers.' Some years ago, he remarks, certain natives of India, having an interest in an appeal to the Privy Council, caught an idiot and slew him on a hill-top as a sacrifice to the deity who presides over the deliberations of that body. A being capable of being propitiated in that fashion might take an interest in squabbles over wafers and chasubles. 'It is a foolish subject to joke about,' he adds, 'for beyond all manner of doubt my clients' real object is to get as much idolatry as possible into the poor old Church of England, and I believe that they will sooner or later succeed in making the whole thing look absurd and breaking it up.' Whether that would be a good thing or not is a matter upon which he feels unable to make up his mind.

Amid these various occupations, Fitzjames, however fully occupied, showed no symptoms of being over-worked or over-worried. He had, in a remarkable degree, the power of taking up and dismissing from his mind the matters in each of which he was alternately absorbed. He could throw himself into codifying, or speculating, or getting up briefs at any moment and in any surroundings, and dismiss each occupation with equal readiness. He found time, too, for a good deal of such society as he loved. He heartily enjoyed little holiday tours, going occasionally to the Continent, and more frequently to some of the friends to whom he always adhered and to whom he could pour out his opinions frankly and fully. Maine was almost his next-door neighbour, and frequently consulted him upon Indian matters. He took his Sunday walks with Carlyle; and he went to stay with Froude, in whose society he especially delighted, in a summer residence in Devonshire. He frequently visited his old friend Venables in Wales, and occasionally spent a few days with members of his own family. Although ready to take up a bit of work, literary or professional, at any moment, he never appeared to be preoccupied; and could discourse with the utmost interest upon his favourite topics, though he sometimes calls himself 'unsociable'—by which he apparently means that he cared as little as might be for the unsociable kind of recreation. He was a member of the 'Cosmopolitan'; he belonged also to 'The Club' and to the 'Literary Society,' and he heartily enjoyed meeting distinguished contemporaries. In 1874 he paid a visit to his friends the Stracheys, who had taken for the summer a house at Anaverna, near Ravensdale, Co. Louth, in Ireland. He liked it so much that he resolved to become their successor. He took the house accordingly, and there spent his holidays in the summer of 1875 and the succeeding years so long as his strength lasted.

Anaverna is a village about five miles of Dundalk, at the foot of a range of grassy hills rising to a height of some 1,700 feet, within a well-wooded country below. The house stood in grounds of about sixty acres, including a wood and traversed by a mountain-stream. Fitzjames enjoyed walks over the hills, and, in the last years, drives in the lower country. To this place, and the quiet life there, Fitzjames and his family became most warmly attached. His letters abound in enthusiastic remarks about the scenery, and describe his pleasure in the intercourse with neighbours of all classes, and in the visits of old friends who came to stay with him. A good deal of his later writing was done there.


I have now to speak of a new friendship which played a very important part in his life from this time. In January 1876, Lord Lytton[174] was appointed Governor-General of India. In February, Fitzjames dined in his company at Lord Arthur Russell's. They went afterwards to the 'Cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. Some of Fitzjames's friends were surprised at the singular strength of attachment between two men so conspicuously different in mind and character. Some contrasts, as everyone observes, rather facilitate than impede friendship; but in this case the opposition might seem to be too decided. The explanation is not, I think, difficult. Lord Lytton, in the first place, was a singularly charming person. He was not only a delightful companion, but he was delightful because obviously open-hearted, enthusiastic, and exceedingly affectionate. To such charms Fitzjames was no more obdurate than his fellows. Lord Lytton, it is true, was essentially a man of letters; he was a poet and a writer of facile and brilliant prose; and Fitzjames acknowledged, or rather claimed, a comparative insensibility to excellence of that kind. Upon some faults, often combined with a literary temperament, he was perhaps inclined to be rather too severe. He could feel nothing but hearty contempt for a man who lapped himself in aesthetic indulgences, and boasted of luxurious indifference to the great problems of the day. Such an excess of sensibility, again, as makes a man nervously unwilling to reveal his real thoughts, or to take part in a frank discussion of principles, would be an obstacle to intimacy. Fitzjames might not improbably decline to take the trouble necessary to soothe the vanity, or thaw the shyness of such a person, and might perhaps too hastily set him down for a coward or a 'poor creature.' But when, as was often the case, the sensitive person was encouraged to openness by Fitzjames's downright ways, the implied compliment would be fully recognised. Lord Lytton, as an accomplished man of the world, was of course free from any awkward bashfulness; and at the very first interview was ready to meet Fitzjames half-way. His enthusiasm accordingly met with a rapid return. One of Fitzjames's favourite assertions was that nobody but a humbug could deny the pleasantness of flattery; and, in fact, I think that we all like it till we discover it to be flattery. What he really meant was that he liked downright, open-hearted and perfectly sincere praise; and both parties to this alliance could praise each other both sincerely and heartily.

There was, however, another reason which helps to explain the great value which Fitzjames attached from the first to this intercourse. It comes out in almost every letter in his part of their correspondence. Fitzjames calls himself 'self-contained'; and the epithet is quite appropriate if it is taken as not implying any connotation of real selfishness. He was, that is, sufficient for himself; he was contented so long as he could feel, as he always had a right to feel, that he was doing his work thoroughly to the very best of his abilities. He could dispense with much appreciation from outside, though it was unaffectedly welcome when it came from competent persons. He had too much self-reliance to be dependent upon any endorsement by others. But, though this might be perfectly true, he was at bottom sensitive enough, and it was also true that he felt keenly certain consequences of his position. His professional career, as I have so often said, had been a series of tantalising half-successes; he was always being baffled by cross winds at the harbour-mouth. Although his courage never failed for an instant, he could not but have a certain sense of isolation or want of support. This was especially true of the codification schemes which occupied so much of his thought. He had been crying in the market-place and no man heeded him. Yet his voice was powerful enough morally as well as physically. He had the warmest of friends. Some of them were devoted to pursuits which had nothing to do with law and could only express a vague general sympathy. They admired his general vigour, but were not specially interested in the ends to which it was applied. Others, on the contrary, were politicians and lawyers who could have given him effectual help. But they almost unanimously refused to take his plans seriously. The British barrister and member of Parliament looked upon codification as at best a harmless fancy. 'A jurist,' Fitzjames sometimes remarks in a joke, which was not all joking, is a 'fool who cannot get briefs.' That represents the view generally taken of his own energy. It was possibly admirable, certainly unobjectionable, but not to the purpose. The statesman saw little chance of gaining votes by offers of a code, and the successful lawyer was too much immersed in his briefs to care about investigating general principles of law. At last, as I have said, Fitzjames got a disciple or two in high places, but even then his most telling argument seems to have been less that codification was good in itself than that success in passing a code would be a feather in the Government cap. Up to 1876 he had not even got so far. Russell Gurney, indeed, had helped him, and Coleridge had shown an interest in his work; but the general answer to his appeals was even more provoking than opposition; it was the reply of stolid indifference.

In India his hands had been free. There he had really done a genuine and big stroke of work. The contrast to English methods, and the failure of his attempts to drive his ideas into the heads of any capable allies, had strengthened his antipathy to the home system, though it had not discouraged him from work. But now at last he had made a real and enthusiastic convert; and that convert a Governor-General, who would be able to become an effective agent in applying his ideas. The longing for real sympathy, scarcely perhaps admitted even to himself, had been always in existence, and its full gratification stimulated his new friendship to a rapid growth. Lord Lytton left for India on March 1, 1876. Before he left, Fitzjames had already written for him an elaborate exposition of the Indian administrative system, which Lytton compared to a 'policeman's bull's-eye.' It lighted up the mysteries of Indian administration. Fitzjames writes to him on the day of his departure: 'You have no conception of the pleasure which a man like me feels in meeting with one who really appreciates and is willing to make use of the knowledge which he has gained with great labour and much thought. I have had compliments of all sorts till I have become almost sick of them, but you have paid me the one compliment which goes straight to my heart—the compliment of caring to hear what I have to say and seeing the point of it.' 'You have managed,' he afterwards says, 'to draw me out of my shell as no one else ever did.' Three years later he still dwells upon the same point. You, he says (January 27, 1879) 'are the only prominent public man who ever understood my way of looking at things, or thought it in the least worth understanding.' 'Others have taken me for a clever fellow with dangerous views.' 'You have not only understood me, but, in your warm-hearted, affectionate way, exaggerated beyond all measure the value of my sayings and doings. You have not, however, exaggerated in the least my regard for you, and my desire to be of service to you.'

These words give the key-note of the correspondence, and may help to explain the rapid growth and singular strength of the friendship between two men whose personal intercourse had been limited to less than a month. Fitzjames threatened, and the 'threat' was fully executed, to become a voluminous correspondent. I cannot say, indeed, which correspondent wrote most frankly and abundantly. The letter from which I have quoted the last passage is in answer to one from Lord Lytton, filling thirty sheets, written, as he says, 'in a hurry,' but, as Fitzjames declares, with 'only two slips of the pen, without an "erasure," in a handwriting which fills me with helpless admiration,' and in a style which cannot be equalled by any journalist in England. 'And this you do by way of amusing yourself while you are governing an empire in war-time,' and yet compliment me for writing at leisure moments during my vacations! Fitzjames, however, does his best to keep pace with his correspondent. Some of his letters run to fourteen and fifteen sheets; and he snatches intervals from worrying labours on his codes, or on the bench or on commissions, or sitting up at nights, to pour out discourses which, though he wrote very fast, must often have taken a couple of hours to set down. The correspondence was often very confidential. Some of Lytton's letters had to be kept under lock and key or put in the fire for safer guardianship. Lytton had a private press at which some of his correspondent's letters were printed, and Fitzjames warns him against the wiles of editors of newspapers in a land where subordinates are not inaccessible to corruption. It would, however, not be in my power, even if I had the will, to reveal any secrets of state. Fitzjames's letters indeed (I have not seen Lord Lytton's), so far as they are devoted to politics, deal mainly with general considerations.

It would be idle to go far into these matters now. It is indeed sad to turn over letters, glowing with strong convictions as well as warm affection and showing the keenest interest in the affairs of the time, and to feel how completely they belong to the past. Some of the questions discussed might no doubt become interesting again at any moment; but for the present they belong to the empire of Dryasdust. Historians will have to form judgments of the merits of Lord Lytton's policy in regard to Afghanistan; but I cannot assume that my readers will be hankering for information as to the special views taken at the time by a man who was, after all, a spectator at some distance. I therefore give fair warning to historical inquirers that they will get no help from me.

When the earlier letters were written the Afghan troubles had not become acute. Fitzjames deals with a variety of matters, some of which, as he of course recognises, lie beyond his special competence. He writes at considerable length, for example, upon the depreciation of the rupee, though he does not profess to be an economist. He gives his views as to the right principles not only of civil, but of military organisation; and discusses with great interest the introduction of natives into the civil service. 'In the proper solution of that question,' he says, 'lies the fate of the empire.' Our great danger is the introduction of a 'hidebound' and mechanical administrative system worked by third-rate Europeans and denationalised natives. It is therefore eminently desirable to find means of employing natives of a superior class, though the precise means must be decided by men of greater special experience. He writes much, again, upon the famine in Madras, in regard to which he had many communications with his brother-in-law, Cunningham, then Advocate-General of the Presidency. He was strongly impressed by the vast importance of wise precautions against the future occurrence of such calamities.

Naturally, however, he dilates most fully upon questions of codification, and upon this head his letters tend to expand into small state-papers. Soon after Lord Lytton's departure there was some talk of Fitzjames's resuming his old place upon the retirement of Lord Hobhouse, by whom he had been succeeded. It went so far that Maine asked him to state his views for the information of Lord Salisbury. Fitzjames felt all his old eagerness. 'The prospect,' he says, 'of helping you and John Strachey to govern an empire,' and to carry out schemes which will leave a permanent mark upon history, is 'all but irresistibly attractive.' He knew, indeed, in his heart that it was impossible. He could not again leave his family, the elder of whom were growing beyond childhood, and accept a position which would leave him stranded after another five years. He therefore returned a negative, though he tried for a time to leave just a loophole for acceptance in case the terms of the tenure could be altered. In fact, however, there could be no real possibility of return, and Mr. Whitley Stokes succeeded to the appointment. Towards the end of Lord Lytton's governorship there was again some talk of his going out upon a special mission in regard to the same subject. But this, too, was little more than a dream, though he could not help 'playing with' the thought for a time.

Meanwhile he corresponded with Lord Lytton upon various measures. He elaborately annotated the drafts of at least one important bill; he submitted remarks to be laid before the Council at Lord Lytton's request, and finally he wrote an elaborate minute upon codification generally. I need only say that, in accordance with what he had said in his last speeches at Calcutta, he held that nearly enough had been done in the way of codifying for India. He insists, too, upon the danger of dealing with certain branches of legislation, where the codification might tend to introduce into India the subtleties and intricacies of some points of English law. Part of this correspondence was taking place during the exciting events in Afghanistan; and he then observes that after all codification is 'only a luxury,' and must for the present give way to more important matters.

Fitzjames, of course, followed the development of the Government policy in regard to Russia and the Afghans with extreme interest. He looked with contempt upon the various fluctuations of popular sentiment at the period of the Bulgarian atrocities, and during the Russian war with Turkey; and he expresses very scanty respect for the policy of the English Government at that period. He was occasionally tempted to take to his old warfare in the press; but he had resolved to give up anonymous journalism. He felt, too, that such articles would give the impression that they were inspired by the Indian Government; and he thought it better to reserve himself for occasions on which he could appear openly in his own person. Such occasions offered themselves more than once, and he seized them with all his old vigour.

A speech made by Bright provoked the first noticeable utterance. Fitzjames wrote two letters to the 'Times,' which appeared December 27, 1877, and January 4, 1878, with the heading 'Manchester in India.' Bright represented the political school which he most detested. According to Bright (or Fitzjames's version of Bright, which was, I dare say, accurate), the British rule in India was the result of 'ambition, conquest, and crime.' We owed, therefore, a heavy debt to the natives; and, instead of paying it, we kept up a cumbrous system of government, which provided for members of the British upper classes, and failed to promote the material welfare of our subjects. The special instance alleged was the want of proper irrigation. To this Fitzjames replied in his first letter that we had, in fact, done as much as could be done, and possibly more than was judicious; and he accuses his antagonist of gross ignorance of the facts. His wrath, however, was really aroused by the moral assumptions involved. Bright, he thought, represented the view of the commonplace shopkeeper, intensified by the prejudices of the Quaker. To him ambition and conquest naturally represented simple crimes. Ambition, reports Fitzjames, is the incentive to 'all manly virtues'; and conquest an essential factor in the building up of all nations. We should be proud, not ashamed, to be the successors of Clive and Warren Hastings and their like. They and we are joint architects of the bridge by which India has passed from being a land of cruel wars, ghastly superstitions, and wasting plague and famine, to be at least a land of peace, order, and vast possibilities. The supports of the bridge are force and justice. Force without justice was the old scourge of India; but justice without force means the pursuit of unattainable ideals. He speaks 'from the fulness of his heart,' and impressed by the greatest sight he had ever seen.

Fitzjames kept silence for a time, though it was a grief to him, but he broke out again in October 1878, during the first advance into Afghanistan. Party feeling was running high, and Fitzjames had to encounter Lord Lawrence, Lord Northbrook, Sir W. Harcourt, and other able antagonists. He mentions that he wrote his first letter, which fills more than two columns of the 'Times,' four times over. I should doubt whether he ever wrote any other such paper twice. The sense of responsibility shown by this excessive care led him also to confine himself to a single issue, upon which he could speak most effectively, out of several that might be raised. He will not trespass upon the ground of military experts, but, upon the grounds of general policy, supports a thesis which goes to the root of the matter. The advance of the Russian power in Central Asia makes it desirable for us to secure a satisfactory frontier. The position of the Russians, he urges, is analogous to our own position in India in the days of Wellesley. It is idle to denounce them for acting as we acted; but it is clear that the two empires will ultimately become conterminous; and it is, therefore, essential for us that the dividing line should be so drawn as to place us in perfect security. Though Fitzjames declined to draw any specific moral, his antagonists insisted upon drawing one for him. He must be meaning to insinuate that we were to disregard any rights of the Afghans which might conflict with our alleged interests.

This point was touched in a letter by Lord Lawrence, to which Fitzjames felt bound to reply. He was reluctant to do so, because he was on terms of personal friendship with Lawrence, whose daughter had recently become the wife of Henry Cunningham. 'I have seldom,' says Fitzjames (October 4, 1877), 'met a more cheery, vivacious, healthy-minded old hero.' Lawrence, he is glad to think, took a fancy to him, and frequently poured himself out abundantly upon Indian topics. Their friendship, happily, was not interrupted by the controversy, in which Fitzjames was scrupulously respectful. This, again, raised the old question about International Law, which Fitzjames, as a good Austinian, regarded mainly as a figment. The moral point, however, is the only one of general interest. Are we bound to treat semi-barbarous nations on the same terms as we consider to govern our relations with France or Germany? Or are we morally entitled to take into account the fact that they are semi-barbarous? Fitzjames's view may be briefly defined. He repudiates emphatically the charge of immorality. He does not hold the opinion imputed to him by his antagonists that we may take what territory we please, regardless of the interests of barbarous natives. He repeats his assertion that our rule rests upon justice as well as force. He insists upon the same point, I may add, in his private letters to Lytton, and declares that it is even more important to be straightforward and to keep our word sacredly with Afghans than with civilised races. He writes very warmly upon the danger of exacting excessive punishment for the murder of Cavagnari. We ought to prove to the natives that our rule is superior to theirs, and that we are strong enough to keep our heads and be merciful even in the face of insults. But then, we have to act upon our own conceptions of morality, and must not be hampered by regarding nations as fictitious persons with indisputable rights. When we have to do with semi-savages, we may have to enforce our own views upon them by the strong hand. Some one, for example, had maintained that the eighth commandment forbade us to interfere with independent tribes; Fitzjames observes (December 25, 1878) that they have just the same right to be independent as the Algerine pirates to infest the Straits of Gibraltar. A parcel of thieves and robbers who happen to have got hold of the main highway of the world have not, therefore, a right to hold it against all comers. If we find it necessary to occupy the passes, we shall have to give them a lesson on the eighth commandment. Nobody will ever persuade him that any people, excepting 'a few strapping fellows between twenty and forty,' really prefer cruel anarchy and a life of murder and plunder to peace and order. Nor will anyone persuade him that Englishmen, backed by Sikhs and Ghoorkas, could not, if necessary, reduce the wild tribes to order, and 'sow the first seeds of civilisation' in the mountains.

To some people it may seem that the emphasis is laid too much upon force and too little upon justice. I am only concerned to say that Fitzjames's whole theory is based upon the view—sufficiently expounded already—that force, order, and justice require a firm basis of 'coercion'; and that, while we must be strictly just, according to our own views of justice, we must not allow our hands to be tied by hollow fictions about the 'rights' of races really unfit for the exercise of the corresponding duties. On this ground, he holds it to be possible to have an imperial 'policy which shall yet be thoroughly unjingo-like.'

Upon this I need insist no further. I shall only say that he always regarded the British rule in India as the greatest achievement of the race; that he held it to be the one thoroughly satisfactory bit of work that we were now doing; and, further, that he held Lytton to be a worthy representative of our true policy. A letter which strikingly illustrates his enthusiasm was written in prospect of the great durbar at Delhi when the Queen was proclaimed Empress of India (January 1, 1877). No man, he thinks (September 6, 1876), ever had before or ever will have again so splendid an opportunity for making a great speech and compressing into a few words a statement of the essential spirit of the English rule, satisfactory at once to ourselves and to our subjects. 'I am no poet,' he says, 'as you are, but Delhi made my soul burn within me, and I never heard "God save the Queen" or saw the Union Jack flying in the heart of India without feeling the tears in my eyes, which are not much used to tears.' He becomes poetical for once; he applies the lines of 'that feeble poem Maud' to the Englishmen who are lying beneath the Cashmire Gate, and fancies that we could say of Hastings and Clive, and many another old hero, that their hearts must 'start and tremble under our feet, though they have lain for a century dead.' Then he turns to his favourite 'Christmas Hymn,' and shows how, with certain easy emendations, Milton's announcement of the universal peace, when the 'Kings sate still with awful eye,' might be applied to the Pax Britannica in India. He afterwards made various suggestions, and even wrote a kind of tentative draft, from which he was pleased to find that Lytton accepted some suggestions. A rather quaint suggestion of a similar kind is discussed in a later letter. Why should not a 'moral text-book' for Indian schools be issued in the Queen's name? It might contain striking passages from the Bible, the Koran, and the Vedas about the Divine Being; with parables and impressive precepts from various sources; and would in time, he thinks, produce an enormous moral effect. In regard to Lytton himself, he was never tired of expressing the warmest approbation. He sympathises with him even painfully during the anxious times which followed the murder of Cavagnari. He remarks that, what with famine and currency questions and Afghan troubles, Lytton has had as heavy a burthen to bear as Lord Canning during the mutiny. He has borne it with extraordinary gallantry and cool judgment, and will have a place beside Hastings and Wellesley and Dalhousie. He will come back with a splendid reputation, both as a statesman and a man of genius, and it will be in his power to occupy a unique position in the political world.

Fitzjames's letters abound with such assurances, which were fully as sincere as they were cordial. I must also say that he shows his sincerity on occasions by frankly criticising some details of Lytton's policy, and by discharging the still more painful duty of mentioning unfavourable rumours as to his friend's conduct as Viceroy. The pain is obviously great, and the exultation correspondingly marked, when Lytton's frank reply convinces him that the rumours were merely the echo of utterly groundless slander. I will only add that the letters contain, as might be expected, some downright expressions of disapproval of some persons, though never without sufficient reason for speaking his mind; and that, on the other hand, there are equally warm praises of the many friends whom he heartily admired. He can never speak warmly enough of Sir John Strachey, Sir Robert Egerton, and others, in whom he believed with his usual fervour. Fitzjames's belief in his friends and his estimate of their talents and virtues was always of the most cordial. I will quote a few phrases from one of his letters, because they refer to a friendship which I shall elsewhere have no opportunity of mentioning. Alfred Lyall, he says, 'is one of the finest fellows I ever knew in my life. If you cultivate him a little you will find him a man of more knowledge, more imagination (in the lofty and eminently complimentary sense of the word), more intelligent interest in the wonders of India, than almost anyone else in the country.' 'I talked to him last Sunday for nearly two hours incessantly on Indian matters and on religion and morals, and left off at last only because I could not walk up and down any longer in common duty to my wife, who was waiting dinner. It will be, as Byron says of Pope, a sin and a shame and a damnation if you and he don't come together. He is the one man (except Maine) I ever met who seemed to me to see the splendour of India, the things which have made me feel what I have so often said to you about it, and which make me willing and eager to do anything on earth to help you.'

I have dwelt at length upon these letters, because they seem to me eminently characteristic, and partly also because they explain Fitzjames's feelings at the time. He was becoming more and more conscious of his separation from the Liberal party. 'Why are you,' asked one of his friends, who was a thorough partisan, 'such a devil in politics?' It was because he was becoming more and more convinced that English political life was contemptible; that with some it was like a 'cricket-match'—a mere game played without conviction for the sake of place or honour; that even where there were real convictions, they were such as could be adapted to the petty tastes of the vulgar and commonplace part of society; and that it was pitiable to see a body of six or seven hundred of the ablest men in the country occupied mainly in thwarting each other, making rational legislation impossible, and bowing more and more before the 'sons of Zeruiah,' who would be too strong for them in the end. For behind all this was arising a social and religious revolution, the end of which could be foreseen by no one. I dread, he says, the spread of my own opinions. The whole of society seems to be exposed to disintegrating influences. Young men have ceased to care for theology at all. He quotes a phrase which he has heard attributed to a very clever and amiable undergraduate whose tutor had spoken to him about going to chapel. If, said the pupil, there be really such a deity as you suppose, it appears to me that to praise him would be impertinent and to pray to him superfluous. What is to happen when such opinions are generally spread, and when the populace discovers that their superiors do not really hold the creeds which they have declared to be essential to society?


Meanwhile, Fitzjames had been receiving various proofs of rising reputation. In January 1877 he was made K.C.S.I. He expresses his pleasure at having the name of India thus 'stamped upon him'; and speaks of the very friendly letter in which Lord Salisbury had announced the honour, and of his gratitude for Lord Lytton's share in procuring it. The University of Oxford gave him the honorary D.C.L. degree in 1878. He was member of a Commission upon fugitive slaves in 1876, and of a Commission upon extradition in 1878.[175] He was also a member of the Copyright Commission appointed in October 1875, which reported in 1878. He agreed with the majority and contributed a digest of the law of copyright. He had occasional reasons to expect an elevation to the bench; but was as often disappointed. Upon the death of Russell Gurney (May 31, 1878) there was some talk of his becoming Recorder of London; but he did not much regret the speedy disappearance of this prospect, though it had its attractions. He was three times (1873, 1877, and 1878) appointed to act as judge upon circuit. When at last he was entrusted with the preparation of the Criminal Code in 1877, the Attorney-General expressed the opinion that a satisfactory execution of the task would entitle him to a judgeship, but could not give any definite pledge. When, however, in July 1878, it was determined to appoint a Commission to prepare a code for Parliament, Fitzjames said that he would be unable to undertake a laborious duty which would make practice at the bar impossible for the time, without some assurance of a judgeship. The Chancellor thereupon wrote a letter, which, though an explicit promise could not be made, virtually amounted to a promise. In accordance with this he was appointed on January 3, 1879, to a judgeship which had become vacant by the resignation of Sir Anthony Cleasby. A notorious journalist asserted that the promise had been made on consideration of his writing in the papers on behalf of the Indian Government. The statement is only worth notice as an ingenious inversion of the truth. So far from requiring any external impulse to write on Lytton's behalf, Fitzjames could hardly refrain from writing when its expediency was doubtful. When the occasion for a word in season offered itself, hardly any threats or promises could have induced him to keep silence. 'Judge or no judge,' he observes more than once, 'I shall be forced to write' if certain contingencies present themselves.

I give the letter in which he announced his appointment to his sister-in-law (January 4, 1879):—'My dearest Emily, I write to tell you that I am out of all my troubles. Cleasby has unexpectedly resigned, and I am to succeed him. I know how this news will delight you, and I hasten to send it, though I hope to see you to-morrow. It gives me a strange, satisfied, and yet half-pathetic feeling. One great battle is won, and one great object obtained; and now I am free to turn my mind to objects which have long occupied a great part of it, so far as my leisure will allow. I hope I have not been anxious to any unworthy or unmanly extent about the various trials which are now over.

'In such moments as this, one's heart turns to those one loves. Dearest Emily, may all good attend you, and may I and mine be able to do our shares towards getting you the happiness you so pre-eminently deserve. I don't know what to wish for; but I wish for all that is best and most for your good in the widest sense which the word can have. Ever your loving brother, J. F. S.'

* * * * *

In giving the news to Lord Lytton, he observes that he feels like a man who has got into a comfortable carriage on a turnpike road after scrambling over pathless mountain ranges. His business since his return has been too irregular and capricious to allow him to feel himself at his ease. That being over, he is resolved to make the bench a 'base of operations' and 'not a mere shelf.'

The hint about 'leisure' in the letter to Lady Egerton will be understood. Leisure in his mouth meant an opportunity for doing more than his duties required. He calculated on a previous occasion that, if he were a judge, he should have at his disposal three or, by good management, four working hours at his own disposal. I find him, characteristically enough, observing in an article of about the same date that the puisne judges have quite enough work without imposing any extra labour whatever upon them. But he tacitly assumed that he was to carry a double burthen. How he turned his time to account will appear directly. I need only say here that he unfeignedly enjoyed his new position. He often said that he could imagine nothing more congenial to all his wishes. He observes frequently that the judicial work is the only part of our administrative system which is still in a thoroughly satisfactory state. He felt as one who had got into a safe place of refuge, from which he could look out with pity upon those who were doomed to toil and moil, in an unhealthy atmosphere, as politicians, public officials, and journalists. He could learn to be philosophical even about the fate of his penal code.


***My nephew, Sir Herbert Stephen, has kindly sent me the enclosed note in regard to my brother's life in Ireland.

L. S.

In 1869 my father took for the long vacation a house called Dromquina, on the northern bank of the Kenmare River, about three miles from Kenmare. The 'river' is an arm of the sea, something like forty miles long, and at Dromquina, I suppose, not above half a mile wide. He had heard of the place by reason of his friend, Mr. Froude, living at that time at Lord Lansdowne's house, Derreen, in Killmakalogue Harbour, about fifteen miles lower down on the opposite shore. In a thickly populated country this would not constitute a near neighbourhood, but we made excursions to Derreen, either in a boat or in Mr. Froude's yacht, several times in the course of the summer. It is in the neighbourhood of the Kenmare River and Bantry Bay that Mr. Froude laid the scene of 'The Two Chiefs of Dunboy.'

Dromquina stands close to the water's edge, and we had several boats and the services of some half-dozen fishermen at our command. My father had learnt to row at Eton, and during this summer he always took an oar—and did good service with it—upon our frequent excursions on the water. I remember, by the way, that many years later, after he had been for some time a judge, he was one day rowing in a boat with a party of friends on the Thames, and was much gratified by my telling him what hard work I had found it, while steering, to keep the boat straight, because he pulled so much harder than the man who was rowing bow, a sturdy athlete, twenty years his junior, but no waterman.

He liked the life at Dromquina so much that in 1873, after his return from India, he took the Bishop of Limerick's house, Parknasilla, in Sneem Harbour, just opposite Derreen. That year, if I remember right, he took some shooting, to which we had to drive a considerable distance. In one year or the other I went out shooting with him two or three times. I do not think he ever had any shooting later: though, considering how little practice he can have had, he was a decidedly good shot. The country was rough, and the bags, though not heavy in quantity—we were lucky if we saw ten brace of grouse—presented a rather extensive variety of kind. During these two summers my father indulged himself freely in his favourite amusement of taking long walks, but also did a good deal of rowing and sailing. He had had my brothers and me taught to swim in a previous summer at the sea-side, and at Dromquina decided that we ought to be able to swim confidently in our clothes. In order to test our possession of this accomplishment, he one day took us out himself in a boat, and told me to sit on the gunwale, after which he artfully engaged me in conversation until he saw that I was not expecting my plunge, when he suddenly shoved me overboard. We all passed the ordeal with credit.

In 1873 he meditated building a house on the Kenmare River, but in the course of that summer he went to visit Sir John Strachey, who was then living at Anaverna House, at Ravensdale in County Louth. The Stracheys left it not long after, and we went there for the first time in 1875. Some years later my father took a lease of it, and there he spent every long vacation till 1891 inclusive, and the greater part of 1892.

For this place my father in particular, as well as his family generally, had from the first a strong affection. The house stands rather high, on the extreme southern slope of the Mourne Mountains, just within the border of the county of Louth and the province of Leinster. Behind and above the house to the north, the 'mountains' (moors varying in height from 1,000 to 2,700 feet) stretch for many miles, enclosing the natural harbour known as Carlingford Lough. Southwards there is a view across a comparatively level plain as far as the Wicklow Mountains, just beyond Dublin, and about sixty miles away. The sea is visible at no great distance on the east, and on fine days we could always see the Isle of Man, about eighty miles to the north-east, from any of several hill-tops within an hour's walk of the house. My father was therefore able to take to his heart's content the long walks that had always been his favourite amusement. He also devoted himself with the greatest enthusiasm to the improvement of the house and grounds. For many years before the Stracheys' short tenancy it had been unoccupied, and the grounds—of which there were about seventy acres—were at first very much overgrown, especially with laurels, which, when neglected, grow in that country in almost disgusting luxuriance. My father therefore occupied himself a good deal with amateur forestry, and became, considering that he first turned his attention to the subject at the age of forty-six, a rather expert woodsman. A good deal of tree-felling was necessary, both in the interest of the trees and for the improvement of the views from the house and its immediate neighbourhood. My father had a Canadian axe, given to him by Frederick Gibbs, of which he was extremely fond, and with which he did a great deal of work. He was never reduced to cutting down a tree merely for exercise, but always first satisfied himself with much care that its removal would be an improvement. Another point in his wood-cutting that I always admired was that, when the more amusing part of the operation—which is cutting the tree down—was over, he invariably took personally his full share of the comparatively uninteresting work of sawing up the trunk, and disposing in an orderly manner of the branches. He also took great pains to cut his trees as close to the ground as possible, so as not to sacrifice the good timber at the butt, or leave a tall or ragged stump to disfigure the ground afterwards.

Another labour in which he took much interest was the making of paths through a little wood running up the hill-side behind the house, and the engineering of a stream which descended through it, and, being flooded two or three times every year, required a good deal of management, the more so as the house was supplied by it with water through an artificial streamlet made for the purpose. In these pursuits my father was always assisted by the village post-master, an old man named Morton, of picturesque appearance and conversation, and the consultations between the two used to be full of interest. Morton spoke with a strong brogue, and combined several other pursuits with that of post-master, the universality of his aptitudes making him an interesting companion, and my father had a great regard for him. He died a few months ago, being then, I believe, over eighty years of age.

Another out-door amusement that my father enjoyed was shooting at a mark with a Snider rifle. The nature of the grounds made it easy to get a safe hundred yards' range within three minutes' walk of the front door, and three or four hundred yards by going a little farther. We practised in this way pretty often, and I think the judge was, on the whole, a better shot than any of his sons. In the year 1883 the household was increased, a good deal to my father's annoyance, by two policemen. At the Liverpool summer Assizes he had tried a gang of dynamiters, I think for treason-felony. They, or most of them, were convicted and sentenced to long terms of penal servitude. Some of my father's friends, not understanding that if anybody wanted to murder him it was quite as likely to be done, and quite as easy to do, in England as in Ireland, and perhaps entertaining the fantastic idea that the population of Louth had more regard for dynamiters than the population of London, suggested to the Irish Government that he was in some danger. The only thing that could be done was to order police protection, and this Sir George Trevelyan did. Accordingly two constables took up their abode in a room which happened to be available in the stable-yard, and mounted guard all day over the hall-door, following my father wherever he went during the day. Though their continued escort troubled him a good deal, there was no escape from it, and he got used to it to some extent. He made great friends with the men personally—like other people, he had the highest admiration for the force to which they belonged—and sometimes challenged them to a shooting match, either with their own rifles or with his, and was much gratified when he got the better of them.

With the people generally he became after a time extremely popular. I say after a time, because the inhabitants of that country do not, any more than country people in most parts of England, take strongly to strangers before they know anything about them. They never showed the least disposition to incivility, but for the first year or two my father had not many acquaintances among them. Later he came to be well known, and when he was taking his walks in the fields or on the mountains, there was hardly a man for a good many miles round who did not hail him by name. I have known them shout across two fields, 'It's a fine evening, Sir James'; and when they did so he invariably stopped and entered into conversation about the crops and the weather, or other topics of universal interest. With some of them whom he had frequently met while walking, or whom he had helped with advice or small loans (about the repayment of which they were, to his great delight, singularly honest), he was on particularly friendly terms, and made a point of visiting them in their houses at least once every year. They have remarkably good manners, and attracted him particularly by their freedom from awkwardness, and their combination of perfect politeness with complete self-respect. I have reason to know that they have not forgotten him.

He once made a short expedition with one of my sisters to Achill, Clifden, and Galway. They stayed two nights at Achill, which sufficed for him to make friends with Mr. Sheridan, the landlord of the inn there. They never met again, but there were communications between them afterwards which showed that my father retained as long as he lived a kindly recollection of the people he had met in that particular holiday.

It was naturally during the summer holidays, and when one of us used to go circuit as his marshal, that my brothers and I saw most of him. I think that during the years of his judgeship I came to know all his opinions, and share most of them. One result of his strong memory, and the immense quantity of talking and reading that he had done in his life, was that he was never at a loss for conversation. But to attempt to give an idea of what his intimate talk was like when he conversed at his ease about all manner of men and things is not my business. It was, of course, impossible to live in the house with him without being impressed by his extraordinary industry. The mere bulk of the literary work he did at Anaverna would make it a surprising product of fifteen long vacations, and there was not a page of it which had not involved an amount of arduous labour which most men would regard as the antithesis of holiday-making. This, however, as the present biography will have shown, was his normal habit, and these notes are designed to indicate that it did not prevent him from enjoying, when away from books and pens and ink, a happy and vigorous life.


[Footnote 119: The first volume of his Civilization in Europe appeared in 1857.]

[Footnote 120: Mill elaborately argues that the social sciences are possible precisely because the properties of the society are simply the sum of the properties of the individuals of which it is composed. His view of the importance of this theory is given in his Autobiography (first edition), p. 260. And see especially his Logic, Bk. vi. chap. vii.]

[Footnote 121: Liberty, Equality, Fraternity, p. 212. (My references are to the second edition.)]

[Footnote 122: P. 17.]

[Footnote 123: P. 10. This is almost literally from Bentham, who gives several similar classifications of 'sanctions.']

[Footnote 124: P. 19.]

[Footnote 125: P. 183.]

[Footnote 126: P. 184.]

[Footnote 127: Pp. 32, 112.]

[Footnote 128: P. 244.]

[Footnote 129: Pp. 193, 195.]

[Footnote 130: P. 30.]

[Footnote 131: P. 239.]

[Footnote 132: P. 184.]

[Footnote 133: P. 96.]

[Footnote 134: P. 140.]

[Footnote 135: P. 139.]

[Footnote 136: P. 162.]

[Footnote 137: P. 177.]

[Footnote 138: P. 169.]

[Footnote 139: P. 58.]

[Footnote 140: P. 82.]

[Footnote 141: P. 84. The quotation is not quite accurate.]

[Footnote 142: Pp. 105-107.]

[Footnote 143: P. 109.]

[Footnote 144: P. 92. In the first edition the 'ignorant preacher' was a 'wretched little curate.' A rougher but more graphic phrase.]

[Footnote 145: There is here a discussion as to the relations between 'justice' and 'utility' upon which Fitzjames agreed with Mill. I dissent from both, and think that Fitzjames would have been more consistent had he agreed with me. I cannot, however, here try to unravel a rather knotty point.]

[Footnote 146: P. 232.]

[Footnote 147: P. 334.]

[Footnote 148: P. 125.]

[Footnote 149: P. 69.]

[Footnote 150: P. 370.]

[Footnote 151: P. 294.]

[Footnote 152: P. 300.]

[Footnote 153: P. 288.]

[Footnote 154: P. 300.]

[Footnote 155: I repeat that I do not ask whether his interpretation be correct.]

[Footnote 156: Pp. 49-60.]

[Footnote 157: P. 302.]

[Footnote 158: P. 287.]

[Footnote 159: P. 132.]

[Footnote 160: P. 75.]

[Footnote 161: P. 295.]

[Footnote 162: P. 343.]

[Footnote 163: P. 354.]

[Footnote 164: Bain's J. S. Mill, p. 111.]

[Footnote 165: Digest of Law of Evidence, preface.]

[Footnote 166: I have to thank Mr. A. H. Millar, of Dundee, for some papers and recollections referring to this election.]

[Footnote 167: They were substantially republished in the Contemporary Review for December 1873 and January 1874.]

[Footnote 168: See prefaces to History of the Criminal Law and to the Digest of the Criminal Law.]

[Footnote 169: The introduction is dated April 1877.]

[Footnote 170: Preface to History of Criminal Law.]

[Footnote 171: 'Jenkins v. Cook,' Law Reports, Probate Division, i. 80-107.]

[Footnote 172: 'Clifton v. Ridsdale,' Law Reports, Probate Division, i. 316-367; and ii. 276-353.]

[Footnote 173: 'Hughes v. Edwards,' Law Reports, Probate Division, ii. 361-371.]

[Footnote 174: B. November 8, 1831. d. November 24, 1891.]

[Footnote 175: Some account of the reports of these Commissions is given in the History of Criminal Law, ii. 45-58, 65-72. The Fugitive Slave Commission was appointed in consequence of a case in which the commander of an English ship in a Mohammedan port was summoned to give up a slave who had gone on board. A paper laid before the Committee by Fitzjames is reprinted in the first passage cited. He thinks that international law prescribes the surrender of the slave; and that we should not try to evade this 'revolting' consequence by a fiction as to the 'exterritoriality' of a ship of war, which might lead to unforeseen and awkward results. We ought to admit that we are deliberately breaking the law, because we hold it to be unjust and desire its amendment. He signs the report of the Commission understanding that it sanctions this view.]




The Commission upon the Criminal Code occupied Fitzjames for some time after his appointment to a judgeship. His first appearance in his new capacity was in April 1879 at the Central Criminal Court, where he had held his first brief, and had made his first appearance after returning from India. He had to pass sentence of death upon an atrocious scoundrel convicted of matricide. A few months later he describes what was then a judge's business in chambers. It consists principally, he says, in making a number of small orders, especially in regard to debtors against whom judgment has been given. 'It is rather dismal, and shows one a great deal of the very seamy side of life.... You cannot imagine how small are the matters often dealt with, nor how important they often are to the parties. In this dingy little room, and under the most undignified circumstances, I have continually to make orders which affect all manner of interests, and which it is very hard to set right if I go wrong. It is the very oddest side of one's business. I am not quite sure whether I like it or not. At any rate it is the very antithesis of "pomp and 'umbug."'

The last phrase alludes to a conversation overheard at the assizes between two workmen. One of them described the judge, the late Lord Chief Justice Cockburn, as a 'cheery swine' who, as he affirmed, had gone to church and preached a sermon an hour and a half long. The sheriff, too, was there in a red coat, and had no doubt got his place by interest. 'Pomp and 'umbug I calls it, and we poor chaps pays for it all.' Fitzjames heartily enjoyed good vernacular embodiments of popular imagination. He admitted that he was not quite insensible to the pleasures of pomp and humbug as represented by javelin men and trumpeters. His work, as my quotation indicates, included some duties that were trivial and some that were repulsive. In spite of all, however, he thoroughly enjoyed his position. He felt that he was discharging an important function, and was conscious of discharging it efficiently. There are few greater pleasures, certainly few were greater to him, than the exercise of a craft which one has so mastered as to have lost all the embarrassment of a beginner. He felt that he was not only up to his duties but had superfluous energy to direct elsewhere. The pleasantest hours of the day were those before and after business hours, when he could devote himself to his literary plans.

In some of his letters to Lord Lytton about the time of his appointment, I find unusual confessions of weariness. He admits that there is a difference between forty and fifty; and thinks he has not quite the old elasticity. I believe, however, that this refers to the worry caused by his work on the Commission, and the daily wrangle over the precise wording of the code, while the judgeship was not yet a certainty. At any rate there is no more mention of such feelings after a time; and in the course of the summer he was once more taking up an important literary scheme which would have tasked the energies of the youngest and strongest. He seems to have contemplated for a time a series of books which should cover almost the whole field of English law and be a modern substitute for Blackstone. The only part of this actually executed—but that part was no trifle—was another book upon the English Criminal Law. It was, in truth, as he ventured to say, 'a remarkable achievement for a busy man to have written at spare moments.' We must, of course, take into account his long previous familiarity with the law. The germ of the book is to be found in the Essay of 1857; and in one way or other, as a writer, a barrister, a codifier, and a judge, he had ever since had the subject in his mind. It involved, however, along with much that was merely recapitulation of familiar topics, a great amount of laborious investigation of new materials. He mentions towards the end of the time that he has been working at it for eight hours a day during his holiday in Ireland. The whole was finished in the autumn of 1882, and it was published in the following spring.

Fitzjames explains in his preface how the book had come to be written. He had, as I have said, laid aside the new edition of the original 'View' in order to compile the 'Digest,' which he had felt to be its necessary complement. I may add that he also wrote with the help of his eldest son—now Sir Herbert Stephen—a 'Digest of the Law of Criminal Procedure,' which was published contemporaneously with the 'History.' The 'Digest' had led to the code and to the Commission. When the Commission was over, he returned to the proposed new edition of the 'View.' But Fitzjames seems to have had an odd incapacity for producing a new edition. We, who call ourselves authors by profession, are sometimes tempted, and we do not always resist the temptation, to describe a book as 'revised and corrected' when, in point of fact, we have added a note or two and struck out half a dozen obvious misprints. When Fitzjames said that his earlier treatise might be described as 'in some sense a first edition' of the later, he meant that he had written an entirely new book upon a different aspect of the old subject. The 'View' is in one volume of about 500 pages, nearly a third of which (153 pages) consists of reports of typical French and English trials. These are reprinted in the 'History.' Of the remainder, over 100 pages are devoted to the Law of Evidence, which is not discussed in the 'History.' Consequently the first 233 pages of the 'View' correspond to the whole of the three volumes of the 'History,' which, omitting the reported trials given in both books, contain 4,440 pages. That is, the book has swelled to six times the original size, and I do not think that a single sentence of the original remains. With what propriety this can be called a 'new edition' I will not try to decide.

The cause of this complete transformation of the book is significant. Fitzjames, in his preface, observes that much has been said of the 'historical method' of late years. It has, he agrees, 'thrown great light upon the laws and institutions of remote antiquity.' Less, however, has been done for modern times; although what is called 'constitutional history' has been 'investigated with admirable skill and profound learning.' As I have noticed, his original adherence to the theories of Bentham and Austin had tended to make him comparatively indifferent to the principles accepted and illustrated by the writings of Maine. He had looked at first with some doubts upon those performances and the brilliant generalisations of 'Ancient Law' and its successors. He quotes somewhere a phrase of his friend Bowen, who had said that he read Maine's works with the profoundest admiration for the genius of the author, but with just a faint suspicion somewhere in the background of his mind that the results might turn out to be all nonsense. Fitzjames had at any rate no prepossessions in favour of the method, and may be said to have been recruited, almost in spite of himself, by the historical school. But it was impossible for anyone to discuss the peculiarities of English Criminal Law without also being plunged into historical investigations. At every point the system is determined by the circumstances of its growth; and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to previous forms of life. The growth of the criminal law, as Fitzjames remarks, is closely connected with the development of the moral sentiments of the community: with all the great political and social revolutions and with the changes of the ecclesiastical constitution and the religious beliefs of the nation. He was accordingly drawn into writing a history which may be regarded as complementary to the great constitutional histories of Hallam and Dr. Stubbs. He takes for granted many of their results, and frankly acknowledges all his obligations. But he had also to go through many investigations of his own special topics, and produced a history which, if I am not mistaken, is of the highest interest as bringing out certain correlative processes in the legal development of our institutions, which constitutional historians naturally left in the background.

His early work upon the similar book suggested by his father had made him more or less familiar with some of the original sources. He now had to plunge into various legal antiquities, and to study, for example, the six folio volumes called Rotuli Parliamentorum; to delve in year-books and old reports and the crabbed treatises of ancient lawyers, and to consider the precise meaning and effect of perplexed and obsolete statutes. He was not an antiquary by nature, for an antiquary, I take it, is one who loves antiquity for its own sake, and enjoys a minute inquiry almost in proportion to its minuteness. Fitzjames's instinct, on the contrary, was to care for things old or new only so far as they had some distinct bearing upon living problems of importance. I could not venture to pronounce upon the value of his researches; but I am happily able to give the opinion of Professor Maitland, who can speak as one having authority. 'About the excellence of your brother's History of English Criminal Law,' he writes to me, 'there can, I suppose, be but one opinion among those who are competent to speak of such a matter. But I think that he is scarcely likely to get all the credit that is due to him for certain parts of the work which are especially interesting to me, and which I have often read—I mean those parts which deal with the middle ages. They seem to me full of work which is both good and new. I take it that he had no great love for the middle ages, and wrote the chapters of which I am speaking as a disagreeable task. I do not think that he had from nature any great power of transferring himself or his readers into a remote age, or of thinking the thoughts of a time very different from that in which he lived: and yet I am struck every time I take up the book with the thoroughness of his work, and the soundness of his judgments. I would not say the same of some of his predecessors, great lawyers though they were, for in dealing with mediaeval affairs they showed a wonderful credulity. To me it seems that he has often gone right when they went wrong, and that his estimate of historical evidence was very much sounder than theirs. The amount of uncongenial, if not repulsive labour that he must have performed when he was studying the old law-books is marvellous. He read many things that had not been used, at all events in an intelligent way, for a very long time past; and—so I think, but it is impertinent in me to say it—he almost always got hold of the true story.'

To write three thick volumes involving such inquiries within three years and a half; and to do the work so well as to deserve this praise from an accomplished legal antiquary, was by itself an achievement which would have contented the ambition of an average author. But when it is remembered that the time devoted to it filled only the interstices of an occupation which satisfies most appetites for work, and in which he laboured with conscientious industry, I think that the performance may deserve Professor Maitland's epithet, 'marvellous.' He was greatly interested in the success of the book, though his experience had not led him to anticipate wide popularity. It was well received by competent judges, but a book upon such a topic, even though not strictly a 'law-book,' can hardly be successful in the circulating-library sense of the word. Fitzjames, indeed, had done his best to make his work intelligible to the educated outsider. He avoided as much as possible all the technicalities which make the ordinary law-book a hopeless bewilderment to the lay reader, and which he regarded on all grounds with natural antipathy. The book can be read, as one outsider at least can testify, with strong and continuous interest; though undoubtedly the reader must be prepared to endure a little strain upon his attention.

There are, indeed, certain drawbacks. In spite of the abundant proofs of industry and knowledge, there are indications that a little more literary polish might have been advantageous. Some of the materials are so crabbed that hardly any skill could have divested them of their natural stiffness. As Professor Maitland's remarks indicate, Fitzjames did not love the old period for its own sake. He liked, as I have noticed, general histories, such as Gibbon's, which give a bird's-eye view of long periods and, in a sense, codify a great mass of knowledge. But he had not the imaginative power of reconstructing ancient states of society with all their picturesque incidents which was first exemplified by Scott. He was always interested in books that reveal human nature, and says in the 'History,' for example, that some of the State Trials are to him 'much more impressive than poetry or fiction.'[176] But the incidents do not present themselves to him, as they did to Scott or to Macaulay, as a series of vivid pictures with all their material surroundings. He shrank, more advisedly, perhaps, from another tendency which has given popularity to a different school. Though he gradually became an admirer of Maine's generalisations, founded upon cautious inquiries and recommended by extraordinary literary skill, his own intellectual aptitudes did not prompt him to become a rival. Briefly, his attitude of mind was in the strictest sense judicial. He asks always for distinct proofs and definite issues. He applies his canons of evidence to every statement that comes up, and, after examining it as carefully as he can, pronounces his conclusions, unequivocally but cautiously. He will not be tempted to a single step beyond the solid ground of verifiable fact. This undoubtedly gives confidence to the tolerably patient reader, who learns to respect the sobriety and impartiality of his guide. But it also fails to convince the hasty reader that he has seen the event precisely as it happened, or that he is in possession of a philosophical key to open all historical problems. I do not wish for a moment to underrate the value of work which has different qualities; but I do think that Fitzjames's merits as a solid inquirer may be overlooked by readers who judge a writer by the brilliance of his pictures and the neatness of his theories.

The book covers a very large field. A brief indication of its general plan will show how many topics are more or less treated. He begins with a short account of the Roman Criminal Law; and then of English law before the Conquest. He next takes up the history of all the criminal courts, including the criminal jurisdiction of the extraordinary courts, such as Parliament and the Privy Council. This is followed by a history of the procedure adopted in the courts, tracing especially the development of trial by jury. The second volume opens a discussion of certain principles applicable to crime in general, such as the theory of responsibility. Next follows a history of the law relating to crime in general. He then takes up the history of the principal classes of crime, considering in separate chapters offences against the state, treason, sedition, and seditious libels; offences against religion, offences against the person (this opens the third volume), especially homicide; offences against property, such as theft and forgery; offences relating to trade and labour and 'miscellaneous offences.' This finishes the history of the law in England, but he adds an account of the extension of the English criminal law to India; and this naturally leads to an exposition of his views upon codification. The exposition is mainly a reproduction of the report of the Commission of 1878-9, which was chiefly his own composition. Finally, the old reports of trials, with a few alterations, are appended by way of pointing the contrast between the English and the French methods, upon which he has already introduced some observations.

Mr. Justice Stephen's book, said Sir F. Pollock in a review of the day, is 'the most extensive and arduous' undertaken by any English lawyer since the days of Blackstone. So large a framework necessarily includes many subjects interesting not only to the lawyer but to the antiquary, the historian, and the moralist; and one effect of bringing them together under a new point of view is to show how different branches of inquiry reciprocally illustrate each other. The historian of the previous generation was content to denounce Scroggs and Jeffreys, or to lament the frequency of capital offences in the eighteenth century, and his moral, especially if he was a Whig, was our superiority to our great-grandfathers. There was plenty of room for virtuous indignation. But less attention was generally paid to the really interesting problems, how our ancestors came to adopt and to be content with these institutions; what precisely the institutions were, and how they were connected with other parts of the social framework. When an advance is made towards the solution of such problems, and when we see how closely they connect themselves with other problems, social, ecclesiastical, and industrial, as well as political, we are making also a step towards an intelligent appreciation of the real meaning of history. It is more than a collection of anecdotes, or even, as Carlyle put it, than the essence of a multitude of biographies; it becomes a study of the growth of an organic structure; and although Fitzjames was reluctant, even to excess, to put forward any claim to be a philosophical historian, a phrase too often applied to a dealer in 'vague generalities,' I think that such work as his was of great service in providing the data for the truly philosophical historian who is always just on the eve of appearing.

I venture to touch upon one or two points with the purpose of suggesting in how many ways the history becomes involved in topics interesting to various classes of readers, from the antiquary to the student of the development of thought. The history of trial by jury had, of course, been already unravelled by previous historians. Fitzjames was able, however, to produce quaint survivals of the old state of things, under which a man's neighbours were assumed to be capable of deciding his guilt or innocence from their own knowledge. There was the Gibbet Law of Halifax, which lasted till the seventeenth century. The jurors might catch a man 'handhabend, backbarend, or confessand,' with stolen goods worth 13-1/2d. in his possession and cut off his head on a primitive guillotine without troubling the judges. Even in 1880 there existed (and I presume there still exists) a certain 'liberty of the Savoy,' under the shadow of the new courts of justice, which can deal with keepers of disorderly houses after the same fashion.[177] From this primitive institution Fitzjames has to grope his way by scanty records to show how, during the middle ages, the jury ceased to be also witnesses and became judges of fact informed by witnesses. Emerging into the period of the Tudors and the early Stuarts, he comes to trials full of historic interest; to the dramatic scenes in which Sir Thomas More, and Throckmorton, and Raleigh played their parts. He has to show how in a period of overpowering excitement, when social organisation was far weaker, and the power of the rulers more dependent upon personal vigour, the Government dealt out sharp and short justice, though juries still had to be cajoled or bullied; how the system was influenced by the growth of the Star Chamber, with a mode of procedure conforming to a different type; and how, when the tyranny of such courts had provoked indignation, they were swept away and left to the jury its still undisputed supremacy. From the time when honest John Lilburne wrangled successfully against Cromwell's judges, it began to assume a special sanctity in popular belief. Then we come to the Popish plots and the brutalities of Scroggs and Jeffreys, when the jury played a leading part, though often perverted by popular or judicial influence, and without any sound theory of evidence. The revolution of 1688 swept away the grosser abuses; the administration of justice became decorous and humane; a spirit of fair play showed itself; the laws of evidence were gradually worked out; and, instead of political tragedies, we have a number of picturesque cases throwing the strangest gleams of light into all manner of odd dark social corners. Within the last century, finally, the mode of investigating crime has become singularly dignified, impartial, and substantially just. A survey of this long history, bringing out at every step picturesque incidents and curious illustrations of social and political constitutions, lights up also the real merits and defects of the existing system. Fitzjames, with much fuller knowledge and longer experience, adheres substantially to his previous opinion. He has not, of course, the old-fashioned worship for the 'palladium of our liberties'; jurors could be 'blind and cruel' under Charles II., and as severe as the severest judge under George III. They are not more likely to do justice than a single judge. But the supreme advantages of placing the judge in his proper position as mediator and adviser, and of taking the public into confidence as to the perfect impartiality of the proceedings, outweigh all objections.

Again we have the curious history of the 'benefit of clergy.' Before 1487, a man who could read and write might commit murder as often as he pleased, subject to an indefinite chance of imprisonment by the 'ordinary.' At a later period, he could still murder at the cost of having M branded on the brawn of his thumb. But women and men who had married two wives or one widow did not enjoy this remarkable privilege. The rule seems as queer and arbitrary as any of the customs which excite our wonder among primitive tribes. The explanation, of course throws a curious light upon the struggle between Church and State in the middle ages; and in the other direction helps to explain the singularities of criminal legislation in the eighteenth century. Our grandfathers seem to have thought that felony and misdemeanour were as much natural classes as mammal and marsupial, and that all that they could do was to remove the benefit of clergy when the corresponding class of crime happened to be specially annoying. They managed to work out the strange system of brutality and laxity and technicality in which the impunity of a good many criminals was set off against excessive severity to others.

The spiritual courts, again, give strange glimpses into the old ecclesiastical system. The records show that from the time of the Conquest to that of the Stuarts a system prevailed which was equivalent to the Spanish Inquisition, except that it did not use torture. It interfered with all manner of moral offences such as that of Eleanor Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a perfect of utinam) 'se fuisse in inferno quamdiu Deus erit in caelo, ut potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys mortuo.' The wrath provoked by this and more vexatious interferences makes intelligible the sweeping away of the whole system in 1640. With this is connected the long history of religious persecution, from the time when (1382) the clergy forged an act of Parliament to give the bishops a freer hand with heretics. Strange fragments and shadows of these old systems still remain; and according to Fitzjames it would still in strict law be a penal offence to publish Renan's 'Life of Christ.'[178] The attempt to explain the law as referring to the manner, not the matter, of the attack is, he thinks, sophistical and the law should be simply repealed. A parallel case is that of seditious libels; and there is a very curious history connected with the process by which we have got rid of the simple, old doctrine that all attacks upon our rulers, reasonable or otherwise, were criminal.

These are some of many cases in which Fitzjames has to give a side of history generally left in comparative obscurity. Upon some matters, as, for example, upon the history of impeachments, he thought that he had been able to correct or clear up previous statements. I have only wished to show how many interesting topics come into his plan; and to me, I confess, the most interesting of all is the illustration of the amazing nature of the so-called intellectual process involved. People seem to begin by making the most cumbrous and unreasonable hypotheses possible, and slowly and reluctantly wriggling out of them under actual compulsion. That is not peculiar to lawyers, and may have a meaning even in philosophy.

Fitzjames's comments upon the actual state of the law brings him to many important ethical problems. The discussion of the conditions of legal responsibility is connected with that of moral responsibility. Fitzjames once more insists upon the close connection between morality and law. 'The sentence of the law,' he says, 'is to the moral sentiment of the public what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.' The criminal law assumes that 'it is right to hate criminals.' He regards this hatred as a 'healthy natural feeling'; for which he again quotes the authority of Butler and Bentham. The legal mode of expressing resentment directs it to proper applications in the same way as the law of marriage gives the right direction to the passion of love. From his point of view, as I have already indicated, this represents the necessary complement to the purely utilitarian view, which would make deterrence the sole legitimate end of punishment. The other, though generally consistent, end is the gratification of the passion of moral indignation.[179]

Hence arise some difficult questions. Fitzjames insists, in agreement with Bentham, and especially with James Mill, that the criminal law is concerned with 'intentions,' not with 'motives.' All manner of ambiguities result from neglecting this consideration. The question for the lawyer is, did the prisoner mean to kill?—not, what were his motives for killing? The motives may, in a sense, have been good; as, for example, when a persecutor acts from a sincere desire to save souls. But the motive makes no difference to the sufferer. I am burnt equally, whether I am burnt from the best of motives or the worst. A rebel is equally mischievous whether he is at bottom a patriot or an enemy of society. The legislator cannot excuse a man because he was rather misguided than malignant. It is easy to claim good motives for many classes of criminal conduct, and impossible to test the truth of the excuse. We cannot judge motives with certainty. The court can be sure that a man was killed; it can be sure that the killing was not accidental; but it may be impossible to prove that the killer had not really admirable motives.

But if so, what becomes of the morality? The morality of an act is of course affected (if not determined) by the motive.[180] We can secure, no doubt, a general correspondence. Crimes, in nine cases out of ten, are also sins. But crimes clearly imply the most varying degrees of immorality: we may loathe the killer as utterly vile, or be half inclined very much to applaud what he has done. The difficulty is properly met, according to Fitzjames, by leaving a wide discretion in the hands of the judge. The jury says the law has been broken; the judge must consider the more delicate question of the degree of turpitude implied. Yet in some cases, such as that of a patriotic rebel, it is impossible to take this view. It is desirable that a man who attacks the Government should attack it at the risk of his life. Law and morality, therefore, cannot be brought into perfect coincidence, although the moral influence of law is of primary importance, and in the normal state of things no conflict occurs.

There are certain cases in which the difficulty presents itself conspicuously. The most interesting, perhaps, is the case of insanity, which Fitzjames treats in one of the most elaborate chapters of his book. It replaces a comparatively brief and crude discussion in the 'View,' and is conspicuously candid as well as lucid. He read a great many medical treatises upon the subject, and accepts many arguments from an opponent who had denounced English judges and lawyers with irritating bitterness. There is no difficulty when the madman is under an illusion. Our ancestors seem to have called nobody mad so long as he did not suppose himself to be made of glass or to be the Devil. But madness has come to include far more delicate cases. The old lawyers were content to ask whether a prisoner knew what he was doing and whether it was wrong. But we have learnt that a man may be perfectly well aware that he is committing a murder, and know murders to be forbidden in the Ten Commandments, and yet unable to refrain from murder. He has, say the doctors, homicidal monomania, and it is monstrous to call in the hangman when you ought to be sending for the doctor. The lawyer naturally objects to the introduction of this uncertain element, which may be easily turned to account by 'experts' capable of finding symptoms of all kinds of monomania. Fitzjames, however, after an elaborate discussion, decides that the law ought to take account of mental disease which operates by destroying the power of self-control. The jury, he thinks, should be allowed to say either 'guilty,' or 'not guilty on the ground of insanity,' or 'guilty, but his power of self-control was diminished by insanity.'[181] I need not go into further detail, into a question which seems to be curiously irritating to both sides. I am content to observe that in the earlier book Fitzjames had been content with the existing law, and that the change of opinion shows very careful and candid consideration of the question, and, as I think, an advance to more moderate and satisfactory conclusions.

The moral view of the question comes out in other relations. He intimates now and then his dissatisfaction with the modern sentimentalism, his belief in the value of capital and other corporal punishments, and his doubt whether the toleration of which he has traced the growth can represent more than a temporary compromise. But these represent mere obiter dicta which, as he admits, are contrary to popular modes of thought. He is at least equally anxious to secure fair play for the accused. He dwells, for example, upon the hardships inflicted upon prisoners by the English system of abstinence from interrogation. The French plan, indeed, leads to cruelty, and our own has the incidental advantage of stimulating to the search of independent evidence. 'It is much pleasanter,' as an Indian official remarked to him by way of explaining the practice of extorting confessions in India, 'to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.'[182] Fitzjames, however, frequently remarked that poor and ignorant prisoners, unaccustomed to collect their ideas or to understand the bearing of evidence, are placed at a great disadvantage by never having stated their own cases. The proceedings must pass before them 'like a dream which they cannot grasp,' and their counsel, if they have counsel, can only guess at the most obvious line of defence. He gives instances of injustice inflicted in such cases, and suggests that the prisoners should be made competent witnesses before both the magistrates and the judge. This would often enable an innocent man to clear up the case; and would avoid the evils due to the French system.[183]

Without going further into this or other practical suggestions, I will quote his characteristic conclusion. The Criminal Law, he says, may be regarded as an expression of the second table of the Ten Commandments. It follows step by step the exposition of our duty to our neighbours in the Catechism. There was never more urgent necessity for preaching such a sermon than there is at present. There was never so much doubt as to other sanctions. The religious sanction, in particular, has been 'immensely weakened, and people seem to believe that if they do not happen to like morality, there is no reason why they should be moral.' It is, then, 'specially necessary to those who do care for morality to make its one unquestionable indisputable sanction as clear and strong and emphatic as acts and words can make it. A man may disbelieve in God, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs—let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, the gaol, or the lash.'[184] That vigorous summary shows the connection between the 'Liberty, Equality, Fraternity,' the various codifying enterprises, and his writings upon theology and ethics. The remarkable point, if I am not mistaken, is that in spite of the strong feeling indicated by the passage just quoted, the tone of the book is throughout that of sound common sense, impartiality, and love of fair play. It is characteristic that in spite of his prejudice against the commonplaces about progress, he does, in fact, show that the history of criminal law is in many most important respects the history of a steady advance in humanity and justice. Nor, in spite of a reservation or two against 'sentimentalism,' does he fail to show hearty sympathy with the process of improvement.


In the summer (1883) which followed the publication of the 'History,' it began to appear that Fitzjames's health was not quite so vigorous as it had hitherto been. He could not throw off the effects of a trifling accident in June so rapidly as of old; and in the last months of the year his condition caused for a time some anxiety to his wife. Considered by the light of what afterwards happened, these symptoms probably showed that his unremitting labours had inflicted a real though as yet not a severe injury upon his constitution. For the present, however, it was natural to suppose that he was suffering from nothing more than a temporary exhaustion, due, perhaps, to the prolonged wrestle with his great book. Rest, it was believed, would fully restore him. He was, indeed, already at work again upon what turned out to be his last considerable literary undertaking. The old project for a series of law-books probably seemed rather appalling to a man just emerging from his recent labours; and those labours had suggested another point to him. The close connection between our political history and our criminal law had shown that a lawyer's technical knowledge might be useful in historical research. He resolved, therefore, to study some of the great trials 'with a lawyer's eye'; and to give accounts of them which might exhibit the importance of this application of special knowledge.[185] He soon fixed upon the impeachment of Warren Hastings. This not only possessed great legal and historical interest, but was especially connected with his favourite topics. It would enable him to utter some of his thoughts about India, and to discuss some very interesting points as to the application of morality to politics. He found that the materials were voluminous and intricate. Many blue books had been filled by the labours of parliamentary committees upon India; several folio volumes were filled with reports of the impeachment of Hastings, and with official papers connected with the same proceeding. A mass of other materials, including a collection of Sir Elijah Impey's papers in the British Museum, soon presented themselves. Finally, Fitzjames resolved to make an experiment by writing a monograph upon 'Impey's Trial of Nuncomar,' which is an episode in the great Warren Hastings story, compressible within moderate limits. Impey, as Fitzjames remarks incidentally, had certain claims both upon him and upon Macaulay; for he had been a Fellow of Trinity and had made the first attempt at a code in India. If this first book succeeded Fitzjames would take up the larger subject. In the event he never proceeded beyond the preliminary stage. His 'Story of Nuncomar and the Impeachment of Sir Elijah Impey,' published in the spring of 1885, gives the result.

Fitzjames had been familiar from his boyhood with the famous article upon Warren Hastings, in which Macaulay reached the very culminating point of his surpassing literary skill. It is a skill which, whatever else may be said of it, makes his opponents despair. They may disprove his statements; they can hardly hope to displace his versions of fact from their hold upon popular belief. One secret of Macaulay's art is suggested by the account of his delight in 'castle-building.' His vast reading and his portentous memory enabled him to create whole galleries of mental pictures of the past, and his vigorous style embodies his visions with admirable precision and sharpness of outline. But, as those who have followed him in detail became painfully aware, there is more than one deduction to be made from his merits. His imagination undoubtedly worked upon a great mass of knowledge; but the very nature of the imaginative process was to weave all the materials into a picture, and therefore to fill up gaps by conjecture. He often unconsciously makes fancy do the work of logic. 'The real history' (of the famous quarrel between Addison and Steele), says Macaulay, 'we have little doubt, was something like this': and he proceeds to tell a story in minute detail as vividly as if he had been an eye-witness. To him, the clearness of the picture was a sufficient guarantee of its truthfulness. It was only another step to omit the 'doubt' and say simply 'The real history was.' Yet all the time the real history according to the best evidence was entirely different. We can never be certain whether one of Macaulay's brilliant pictures is—as it sometimes certainly is—a fair representation of a vast quantity of evidence or an audacious inference from a few hints and indications. It represents, in either case, the effect upon his mind; but the effect, if lively enough, is taken to prove itself. He will not condescend to the prosaic consideration of evidence, or to inserting the necessary 'ifs' and 'perhapses' which disturb so painfully the impression of a vivid narrative. When his strong party feelings have coloured his beliefs from the first, his beliefs acquire an intensity which enables them not only to dispense with but to override evidence.

I insist upon this because Fitzjames's mental excellencies and defects exactly invert Macaulay's. His imagination did not clothe the evidence with brilliant colours; and, on the other hand, did not convert conjectures into irresistible illusions. The book upon 'Nuncomar and Impey' shows the sound judgment of evidence in regard to a particular fact which Professor Maitland perceives in his treatment of mediaeval affairs. It is an exhaustive, passionless, and shrewd inquiry into the facts. He speaks in one of his letters of the pleasure which he has discovered in treating a bit of history 'microscopically'; in getting at the ultimate facts instead of trusting to the superficial summaries of historians. In brief, he is applying to an historical question the methods learnt in the practice of the courts of law. The book is both in form and substance the careful summing up of a judge in a complicated criminal case. The disadvantage, from a literary point of view, is obvious. If we were profoundly interested in a trial for murder, we should also follow with profound interest the summing up of a clear-headed businesslike judge. But, if we did not care two straws whether the man were guilty or innocent, we might find the summing up too long for our patience. That, I fear, may be true in this case. Macaulay's great triumph was to create an interest in matters which, in other hands, were repulsively dry. Fitzjames could not create such an interest; though his account may be deeply interesting to those who are interested antecedently. He observes himself that his 'book will be read by hardly anyone, while Macaulay's paragraph will be read with delighted conviction by several generations.' So long as he is remembered at all, poor Impey will stand in a posthumous pillory as a corrupt judge and a judicial murderer.[186] One reason is, no doubt, that the effect of a pungent paragraph is seldom obliterated by a painstaking exposure of its errors requiring many pages of careful and guarded reasoning. Macaulay's narrative could be superseded in popular esteem only by a writer who should condense a more correct but equally dogmatic statement into language as terse and vivid as his own. Yet Fitzjames's book must be studied by all conscientious historians in future, and will help, it is to be hoped, to spread a knowledge of the fact that Macaulay was not possessed of plenary inspiration.

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